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Laws of War UPSC NOTE

 What are the laws of war?

  • There are two separate and independent international law questions related to wars. 

  • First, under what conditions or when can countries use force in their international relations? This is known as jus ad bellum, regulated by the United Nations (UN) Charter.

  • Second, how is a war to be fought, that is, what military actions are permissible? This is known as jus in bello. 

  • Assuming a country is justified under the UN Charter to use force, it still must ensure that it satisfies jus in bello obligations. 

  • Justification to use force does not relieve a country of its obligations to use such force in accordance with international law.

  • The ‘how’ of using force or the law of war is known as international humanitarian law (IHL), which provides the rules that must be followed during an armed conflict. 

  • IHL is contained in customary international law, the Geneva Conventions of 1949 and the Additional Protocols of 1977. 

  • It regulates the conduct of the parties or groups engaged in an armed conflict. 

  • Its primary objective is to protect civilians and reduce the suffering a war unleashes. 

  • No matter how just the cause of fighting a war, warring parties must comply with IHL.

Do the laws of war apply to the ongoing military conflict of Israel and Hamas

  • Yes, because the military conflict between Israel and Hamas is an armed conflict. 

  • As was held by the International Criminal Tribunal for former Yugoslavia in the Prosecutor versus Dusko Tadić case, an armed conflict in international law exists when “there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”. 

  • International law classifies armed conflicts into two categories — international armed conflict (IAC) and non-international armed conflict (NIAC). 

  • According to Common Article 2 of the Geneva Conventions, IAC includes all cases of declared war or any other armed conflict between two or more countries. 

  • NIAC includes non-governmental forces (Hamas) involved in battle with governmental forces (Israel). 

  • Common Article 3 of the Geneva Convention applies to NIAC. 

  • Thus, Israel and Hamas are obliged to abide by IHL.

What about civilian killings?

  • The primary objective of IHL is that during an armed conflict, a distinction is always made between combatants and civilians. 

  • War parties can only attack combatants and military targets, not civilians and civilian objects.

  • Indiscriminate attacks that fail to distinguish between combatants and civilians are forbidden and thus illegal. 

  • Accordingly, the killing of civilians by Hamas is illegal. 

  • Also, any military attack that causes disproportionate harm to civilians, when judged against the expected military benefit, is barred.

  • Israel reportedly dropped 6,000 bombs on Gaza, causing widespread destruction and death. This is a disproportionate use of force. 

  • Hamas’s horrific attack on Israel does not justify Israel inflicting disproportionate harm on the civilian population in Gaza. 

  • All this amounts to grave breaches of the 1949 Geneva Conventions and constitutes as war crimes.

Is hostage-taking legal?

  • Hamas has taken Israelis hostage. This is illegal.

  • Hostage-taking is specifically recognised as a war crime by Article 8 of the Rome Statute — a treaty establishing the International Criminal Court.

  • Article 1 of the International Convention Against the Taking of Hostages recognises hostage-taking as a crime.

What about the Gaza Strip blockade?

  • Israel’s plan to block the supplies of food, electricity, water, and fuel in the Gaza Strip, where close to two million people live, amounts to collective punishment.

  • Retaliating against a group for the conduct of individual/s said to belong to that group. 

  • This action will exacerbate the already harsh air and sea blockade of the Gaza Strip since 2007.

  • Such an action violates a fundamental tenet of IHL that no person should be punished for actions they didn’t commit. 

  • Punishing all Gaza Strip residents for Hamas’s actions is illegal and a war crime. 

  • Additionally, under IHL, warring parties must give advance warning to civilians to evacuate before attacking, which should be effective. 

  • If civilians are not given adequate time to evacuate, the warning will be ineffective. 

  • Israel’s warning to the residents of the Gaza Strip is not effective. 

  • Given the air and sea blockade, the civilians do not have a realistic possibility of moving to safe places. 

  • In any case, civilians who do not move out despite the warning must also be protected.

  • Both sides need to respect their IHL obligations and an investigation should be launched into the war crimes committed.

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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Laws of War UPSC NOTE
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