All is not fair when it comes to war.
Iraqi and allied forces now battling in the Middle East will be governed by a body of international laws, developed over centuries of conflict, which regulate behavior during war."In recognition that it is impossible to outlaw war, nations have tried to make it (war) more civilized," said Stan A. Taylor, professor and chairman of political science at Brigham Young University.
When most people think of war laws they think of the "Geneva Convention." Actually, there are three sources of war rules: general customs, treaties and international law. And, there has been not one Geneva convention but several, as well as a number of other treaties and agreements drafted to govern war behavior.
Customary war rules have lengthy history - formally dating from the Middle Ages, when chivalry, a sense of fair play and having a "just" cause guided war. One notable early rule of war prohibited Christians who captured other Christians from enslaving them.
Hugo Grotius, a Dutch jurist, wrote the first major international treaty on war called "On the Law of War and Peace." It was published in 1625. Since then, as military might has grown, so has the need to establish what is and is not acceptable warfare.
"The rules quite often come out of the horrors of past wars," Taylor said. "States are bound by them only if they agree to be bound by them. Most modern states have adhered to these agreements."
In general, war rules address certain key issues: the area of combat, weapons acceptable, effects on private property, the treatment and rights of prisoners and the safety of non-combatants.
For example, "If you are a conquering army you can't just ignore the wounded soldiers of your enemy," Taylor said.
Rules of war also forbid use of suffocating and poisonous gases, bacteriological warfare and radiological weapons.
"If Saddam Hussein were to use poison gas in this war and then lose, there is no question that he and those in the field that used it could be tried under the Geneva Conventions," Taylor said.
The rules of war are particularly prone to being ignored in certain circumstances: in civil war or guerrilla war and by a state that believes it is about to be annihilated anyway.
What prompts states to abide by war rules? "If they violate the rules they run the risk of having the enemy violate them against you," Taylor said. "It's self-interest. In World War II, most states most of the time did not use poison gas. Some would say it was because of rules of war; others said it was self-interest."
In World War II, German and Japanese commanders were tried as war criminals for violating rules of war, Taylor said.
Before Wednesday Iraq made atrocious statements about what it would do to captured airmen; then the state told citizens not to harm captured pilots but to take them as prisoners, Taylor said.
"If you were to capture an airman and mutilate him, it would be a violation of war," Taylor said. "Why would they worry about that? Because some of their airmen might get caught."
Another deterrent to barbaric behavior in war is the scorn of other nations, Taylor said.
"It is easier if they are not seen as a violator of these norms," Taylor said. "However, I would be foolish if I relied on rules of war to govern the behavior of belligerents."
If war rules are violated in a conflict, the primary responsibility for trying criminals is up to the violator's state - which explains why no war charges were brought against Saddam when he used poison gas against the Kurds. Otherwise, it is up to the victorious state to decide whether to file charges. Charges may include: crimes against peace, crimes against humanity, genocide and violations of laws and customs regulating conduct of war.
The rules of war
The first major international discourse on war conduct was a book published in 1625 by Dutch jurist Hugo Grotius called "On the Law of War and Peace." Since then other rules have been developed to guide warfare:
- The Declaration of Paris of 1856: limited sea warfare by abolishing privateering.
- The Geneva Convention of 1864 (revised in 1906): provided for humane treatment of wounded soldiers.
- The Hague Conventions of 1899 and 1907: These conventions addressed 101 points of war and formed the bulk of definitive law of war as it exists today. In general, the conventions focused on restraining what armies in the field could do. For example, the conventions outlawed the use of dum-dum bullets (which expand on impact) and the use of poison gas in projectiles in certain circumstances. Also, armies were prohibited from driving civilians out of their homes.
- Geneva Protocol on Gas Warfare of 1925: prohibited the use of asphyxiating, poisonous or other gases and bacteriological methods of warfare.
- Treaty for the Renunciation of War of 1928: condemns recourse to war and renounces war as an instrument of national policy. However, allows states to act in self-defense and in collective action.
- Geneva Convention of 1929: provided for treatment of prisoners of war as well as sick and wounded prisoners.
- London Protocol of 1936: outlawed use of submarines against merchant ships.
- United Nations General Assembly Convention, 1948: prohibits genocide.
- Geneva Convention of 1949: updated and expanded declarations of previous Geneva conventions, in particular addressing treatment of wounded and sick soldiers in the field or at sea, prisoners of war and civilians in war.
- Charter of the United Nations, 1945: condemns aggression and limits any resort to war to justifiable self-defense or to action for international security.
What the rules do:
- Prohibit attacking hospitals, hospital ships, medical aircraft and various kinds of educational, cultural and religious property. Protection from attack is usually indicated by signs such as the Red Cross.
- Forbid pillaging.
- Prohibit the use of treachery - using white flag of truce or Red Cross as cover for perpetrating hostilities.
- Prohibit declarations that no mercy will be given to enemy troops.
- Prohibit torture.
- Forbid use of weapons that may cause unnecessary suffering and death; prohibit use of poison and poison weapons, expanding bullets, suffocating and poisonous gases, bacteriological warfare and radiological weapons. In principle, use of nuclear weapons is also forbidden.
- Require armies to distinguish between combatants and non-combatants.
- Establish humane treatment of the enemy's soldiers, whether prisoners, wounded and sick or the dead.