Law of Land Warfare 101
The law of land warfare is the body of international law that regulates the conduct of armed conflict on land and applies to the conduct of state forces and, increasingly, armed groups. Traditionally, public international law of war was governed primarily by treaties, the most prominent being the Hague Documents (1899 and 1907) and the Geneva Conventions (1864, 1906, 1929, 1949 and 1977). However, custom and practice rapidly began to supplement the conventional instruments, and by the Second World War much of the law of land warfare had developed as customary international law applicable to all states irrespective of their particular treaty obligations. Custom developed on the basis of an evolved approach to warfare that attempted to adapt to new and sophisticated modes of warfare and the changing character of armed forces. By the mid-twentieth century, custom had settled the basic elements of the law of land warfare into core principles that were then captured into the Geneva Conventions and Protocols . This process continues today, with conventions, customary law and soft law evolving together to fill the gaps emerging from new developments in warfare.
The law of land warfare is one of the most relevant bodies of international law in modern conflicts, due to its comprehensive application and development on all continents and across all conflicts governed by international law. In particular, recent trends in asymmetric and urban warfare have raised new challenges for the application of the law. The principle of distinction between combatants and civilians, to take one example, is an evolving and developing area of the law of land warfare that has met with significant challenges and trouble in the last twenty years. As military operations increasingly focus on urban areas to confront enemies with means and methods of warfare that are far more technologically sophisticated, this principle will continue to be tested. It can be reasonably expected that the the continuing evolution of the law will require reflection by military commanders and their legal advisers around the world.
Key Rules of the Law of Land Warfare
The law of land warfare calls for a special appreciation of its fundamental principles, which apply during both international and non-international armed conflicts. The following are the five most important. First is distinction, which requires parties to a conflict at all times to distinguish between combatants and civilians. This principle is embodied in the First Additional Protocol of 1977 relative to the protection of victims of international armed conflicts ("Additional Protocol I") (Article 48) and in the Second Additional Protocol of 1977 relative to the protection of victims of non-international armed conflicts ("Additional Protocol II") (Article 13). Implementing Detailed Guidance (IDG) No. 4.3 protects under this principle civilians from attack. To aid in the distinction between civilians and combatants, Additional Protocol II expressly provides two definitions. (Additional Protocol II, Art. 13(3)). The United States also advises that those who accompany the forces without actually being members of armed forces (e.g. media, cooks, etc.) shall be considered civilians. It is equally important to note, however, that distinction "does not mean that civilians who are directly participating in hostilities are protected against attack. Whenever such civilians take a direct part in hostilities, they lose their protection against attack for such time as they participate in the hostilities." (Customary International Humanitarian Law, Rule 1). The tactical problem such civilian participation causes is discussed in the Tactical Issues section. Second, there is proportionality. This principle "prohibits attacks on any military target expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, when that loss of civilian life, injury to civilians, or damage to civilian objects, would be excessive in relation to the concrete and direct military advantage anticipated." (IDG No. 9.1) Coupled with the distinction principle, proportionality focuses the military commander on the difference between the civilian and military populations and encourages a commander to avoid unnecessary risks. This is most appropriately viewed less as a set of rules and more as a philosophy that "at its core . . . is simply that military operations must discriminate between civilians and non-civilians, between those in combatant and non-combatant status, and balance military necessity against humanitarian concerns." (David Frakt, Guantánamo’s Battlefield). The third principle is necessity. "Necessity justifies measures required to secure the accomplishment of a legitimate military purpose, and excludes any arbitrary treatment of prisoners of war or attacks upon the civilian population." (IDG No. 10.1) Necessity is a double-edged sword. On the one hand, it serves as a defense for non-international parties to do what a legitimate military force may do for the purpose of achieving their military objectives. On the other, it inhibits the ability of non-state actors to engage in attacks which may rise to a violation of other fundamental principles. The fourth principle is humanity. "Military necessity does not justify infliction of suffering, injury or destruction not actually necessary for accomplishment of military purpose." (IDG No. 11.1) This principle also informs the law of land warfare when it comes to treatment of the wounded, sick, shipwrecked and prisoners of war. It also affects the degree of precaution that is applied to civilian objects. The fifth and final fundamental principle is honor. "A commander shall ensure that his subordinates are fully informed of the provisions of the law of land warfare and that such provisions are observed." (IDG No. 23.1) For example, a commander "is responsible for all acts committed by his subordinates which contravene the law of land warfare." (IDG No. 24.1) For a military lawyer or a commander, this principle must have priority over all others.
Treaties Governing the Law of Land Warfare
The development of the law of land warfare from a relatively rudimentary rules-based system into the sophisticated one of today with all its controls and refinements owes itself to the deliberate codification of the rules of warfare. The need for standardization became evident to nations in the wake of the Napoleonic Wars, and a number of important treaties were signed to set out certain rules for the conduct of warfare that would be binding upon all signatory states. Early in the 1860s, a number of the major European powers, including France and Germany, entered into bilateral treaties covering the treatment of prisoners of war. The trend towards the establishment of formal written rules continued, however, as a result of the reformation of the International Committee of the Red Cross following the war between the Kingdom of Sardinia and Austria in 1859. The first modern multilateral treaty of this kind was signed at the The Hague Conference of 1899 and established rules governing the conduct of war on land. Major revisions were published in successive conferences in 1907 and 1929.
The Treaty of The Hague was a landmark event in international law. For the first time, issues such as the treatment of enemy prisoners of war, occupation of enemy territory, and the entry into force and validity of treaties and treaties of capitulation were dealt with at an international level. In 1929, to keep up with developments in warfare, the Legislation of the Hague was revised and more rules were added. To a great extent, the rules laid down in the Hague Regulations were observed by most States engaged in international warfare, but some of the provisions were vague, and problems arose over interpretation. In the years that followed the Second World War, organisations including the United Nations attempted to remove the vagueness of many of these provisions. The Geneva Conventions of 1949 and Additional Protocols I-IV (1977) supplemented and extended the Hague Conventions. From the late 1960s, several specialised treaties dealing with specific issues were agreed, such as the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons 1980 (Amended Protocol II) on mines, booby-traps, and other devices; the Convention on the Rights of the Child 1989; the United Nations Convention on the Prohibition of Anti-Personnel Mines 1997; and the International Convention for the Suppression of Acts of Nuclear Terrorism, 2005 (albeit the later is of limited relevance to war). Several important treaties were also developed covering the prohibition from use of biological and chemical weapons, the restraint of military activity on the environment, and the use of poison, gases, and bacteriological methods in warfare.
The Geneva Conventions and Additional Protocols have had significant impact on the protection of victims of armed conflicts and have provided a baseline from which detailed developments can be made. It is now recognised that customary and conventional international law contains detailed rules governing the conditions under which foreign aid and intervention may be provided. The conventions and protocols are often referred to as Common Article 3 because of the article in each of the Geneva Conventions that states the same fundamental provisions, both of which are based on custom. These basic rules set out the minimum standards of humane treatment to be afforded to all combatants in conflict irrespective of nationality, and are widely thought not to be subject to derogation or reservation by states. They include prohibitions on taking no quarter, mutilating or executing Washington Forces, violence to life and health, causing great suffering, unlawful deportation, and those relating to the denial of fair trial and the destruction of property. The Geneva Conventions have been described as "perhaps the most successful codification of international law, that has ever been effected", by Professor Eckart Krafft.
Implementation and Challenges
Implementation, Interpretation and Practice of the Law of Land Warfare
Implementation and enforcement of the law of land warfare must be viewed through a broader lens since nations are not always aware of the precise sources of their obligations. Advocates for enforcement of the law of land warfare may seek to compel compliance with treaties, customary international law, and national law, but a comprehensive understanding of enforcement also embraces demands of realism and political will.
To take one example, Article 1(4) of the Geneva Conventions states: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." Yet it is not always clear what this means or who has standing to demand respect for the law of land warfare. It is clear, however, that the United Nations Charter protects the sovereign right of states to use force, and recognizes the right of nations to collectively enforce the law through enforcement actions or peacekeeping operations involving multinational military coalitions.
Some question whether the law of land warfare should even apply in non-international armed conflicts. Critics argue that the Geneva Conventions’ Common Article 3 should be sufficient to protect individuals in internal conflicts . Others argue that war does not redress social injustices, but prepares the ground for further rounds of conflict. But a new consensus appears to be emerging with respect to the application of the law of land warfare to non-international conflicts.
Some countries neither adopt the law of land warfare (including the Geneva Conventions) as national law nor have a system for the settlement of disputes and claims arising from either international or domestic armed conflicts in which they participate. As a consequence, violations of the law of land warfare committed by a belligerent or its agents are not subject to prosecution in their courts. And, in countries whose legislature has enacted laws to implement the law of land warfare the question may arise whether they have the political will to enforce them.
A more difficult question arises when a belligerent is not a party to any international instrument or customary law. For example, non-state armed groups such as the FARC in Colombia do not believe they are bound by the law of land warfare. Even though such groups may be bound to respect the law of land warfare as customary international law, they may be willing to talk about respect for humanitarian concerns but not accept an obligation to respect international law.
Land Warfare Case Studies
Land warfare, significantly, is also the most prevalent type of warfare seen over the ages. War on land has been present in every continent and every major civilization since the dawn of man. As such, there are countless case studies where an application or violation of the law of land warfare is sufficiently factually distinguishable from the paradigmatic case study above. However, clearly, a comprehensive review of these cases is not feasible. Nevertheless, an attempt is made here at providing a representative sample of these cases that sheds light on the scope of, and respect for, the law of land warfare.
The Baltic Campaign against the Soviet Union in 1941 is a remarkable example of a violation of the law of land warfare. When German troops invaded the Soviet Union in June of 1941, they halted their eastward advance at Leningrad (today St. Petersburg). On September 8 of that year, German troops encircled the city, cutting off all supplies and reinforcements and effectively trapping approximately 2.5 million people, including a quarter million troops, within the city. As winter approached, the Soviets were forced to question the wisdom of holding the city against German assaults in extreme winter weather with a huge contingent of troops and civilians. On September 18, 1941, Soviet forces were ordered to "maintain your positions to the death!" The Germans then laid siege to the city for better than two years. In doing so, they performed three criminal acts against civilians. First, transport and communication lines were bombed. Leningrad even went so far as to halt rail defection out of the city until well into 1942, unwilling to "let any enemies out." In addition, all food stocks were confiscated, and captured supplies, including airplanes from the Soviet air force, were distributed to civilians. Finally, all electricity, water, and other supplies from outside the city were either intercepted at the edge of the front or prohibited. The Nazi forces besieging Leningrad were, in essence, trying to starve the civilian populace and Soviet soldiers into submission. The result was a protracted siege that resulted in the deaths of approximately 1.4 million civilians, primarily due to the harsh conditions and lack of food, medical care, and sanitation. It also resulted in approximately 800,000 military deaths, primarily due to combat and poor medical care. Perhaps the most remarkable thing about the entire siege was that, when finally lifted in January of 1944, the Soviet Union was still able to mount an effective counter-attack. It is now well understood that this counter-attack played a critical role in the ultimate defeat of Axis forces in the European theater.
A second case study that is particularly worthy of note is the Siege of Vicksburg during the American Civil War between the Union and Confederacy. This siege was carried out from May 18 to July 4, 1863. The strategic objective of this siege was to take control of the Mississippi River at a key point in the southern United States located at Vicksburg, Mississippi. Early in May 1863, the Confederates had achieved a considerable success. An informed and suspected Union attack on the city was repulsed and their forces withdrew towards the Arkansas River. Recognizing their now vulnerable position, the Union forces decided to hold a series of defensive positions to slow the Confederate forces and allow their troops to regroup and prepare for a second attack on Vicksburg, the city that they believed would be the key to winning the war. However, Vicksburg was crucial for controlling the Mississippi River and thus the supply scheme that linked the eastern and western theaters of the war. Additionally, control of the city’s roads allowed it to serve not only as a transportation center but also as an enabler for supply via a corridor of railroads. The city was also pivotal for controlling the Southern states of Texas, Arkansas, Louisiana, and Mississippi. Taking Vicksburg, it was believed, would substantially kill Confederate resistance at its source. Thus, rather than retracing their steps in retreat, the Union Army decided to change its strategy and attacked the city. The siege of the city by Union forces was successful. However, the siege effects on the civilian population of the city were devastating. While the Union Army reported 4,835 soldiers killed in battle, there were an additional 3,16 soldiers wounded, with 1,070 dying of their wounds. Of those who died, 4,533 soldiers were buried in the National Cemetery at Vicksburg. While exact numbers will never be available, it is estimated that 2,002 civilians died during the siege, with the highest concentration of deaths occurring in the initial phases of the siege. Many of the civilian dead were women and children. The proud, prosperous city was wrecked in ways because of the stress caused when the population could not include food, clothing, firewood, and medicine in their daily lives for over 70 days. Food and fuel shortages resulted in severe malnutrition and in some cases, starvation. At one point, starvation of the city’s populace was so severe that the Union Army had to begin distributing feed meant for horses to civilians to eat. All of this led to rampant incidences of disease, ultimately resulting in more deaths than those occurring directly from the war itself. Upon the seizure and control of Vicksburg by Union forces, it is probable that, while the siege did not result in the desired capture of the Confederate army in the area surrounding the city, it nevertheless was a stunning strategic victory in controlling communications to and from the Confederacy. Ultimately, the Union gains created from this victory swelled the numbers of both volunteers initially creating it as well as positive sentiment needed, particularly among European combatants, to win the war.
Future of the Law of Land Warfare
A critical concern for the future will be the increasing speed with which hostilities evolve. In the past, the law of land warfare could remain unchanged for decades. In contrast, however, the existence of new types of weapons and methods of warfare on the immediate horizon, such as cyber warfare and unmanned aerial vehicles, threatens to obscure the distinction between combatants and non-combatants. Indeed, it is difficult to imagine how the law of land warfare can, over the next few decades , protect civilians from attacks and interferences with private property in the manner that it has protected them in the past.
Another likely challenge to the law of land warfare in the future will come from its application to highly mobile operations at great distances from the territory of the sovereign or intergovernmental organizations that launched the operations. So-called "out of area" actions have already begun to challenge the law’s scope. One possible direction for the law to follow is the development of general principles of "international violence," not tied to land warfare or to state sovereignty that address various contemporary means and methods of warfare, including, for example, cyber warfare, unmanned aerial vehicles and "coercive diplomacy", to allow the law to adapt to current realities.
The future of land warfare law appears to be one governed by new technology and increased complexity, and it is the task of international law, and the lawyers who interpret and apply it, to meet the challenges of this reality.