The first international agreement aimed at “civilizing” warfare was signed in 1862. The world has since experienced, among countless other conflicts, two devastating world wars in all their unimaginable atrocities. The last century has seen various treaties, charters, and conventions take place, yet one would be hard pressed to find a modern country in existence that hasn’t been accused of violating human rights during conflict. An important point to keep in mind while discussing international laws of combat: they have been broken more often than followed.
International laws of war are divided into two main areas: “Jus Ad Bellum” and “Jus In Bello.”
Jus Ad Bellum is “right to war” in Latin. Those are laws pertaining to justifiable use of force and ethically sound military measures. Laws that seek to limit Jus Ad Bellum are Ius Ad Bellum (law on the use of force) or Ius Contra Bellum (law on the prevention of war.)
Jus In Bello, or “right in war,” is concerned with the conduct of parties already engaged in hostilities, no matter how they got there and who may be the wronged party. It is mostly invested in protecting noncombatants and captives, as well as forbidding unconventional warfare. Jus In Bello is also known as international humanitarian law or IHL. (1)
The Hague conventions
The Hague regulations (1899 and 1907) form the basis to modern laws of war and are considered binding on modern states today, even though they signed by long-gone European monarchies:
Provisions of these conventions are considered to be part of the rules of customary international law. Today all states, even those that are not State Parties to either or both Conventions, are considered to be bound by their provisions (2)
The Hague conventions attempt to establish both JUS AD BELLUM and JUS IN BELLO boundaries. There are clauses to facilitate peaceful resolution of conflict, to limit the methods that armies may use, and to forbid attacks on civilian targets. The Jus Ad Bellum clause most relevant to the Six Day War’s breakout is:
The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.“(3)
Meaning, war should not begin as a surprise attack, but in a gentlemanly formal challenge.
The Geneva Convention
Based on a series of conventions from 1862 to 1949, the Geneva Convention lists rights of non-combatants as well as those pertaining to injured and captive soldiers. It is concerned with Jus In Bello rights of individuals once the conflict commenced, and not in initiation of conflict Jus Ad Bellum. (4)
The Geneva Convention becomes more relevant to Israel with a protocol added in 1977 that seems to be, if not a responding directly to the situation after the Six Day War, at least strongly aware of it:
Armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes are to be considered international conflicts. (5)
This distinction is significant. Once recognized as taking part in an international conflict, a detained terrorist becomes a “captive combatant” and is awarded the accompanying rights and privileges, not the least of which that their treatment is now under a level of international and UN scrutiny that does not exist when a country legally detains its own citizenry.
The UN charter
The UN charter’s very first chapter includes an Ius Contra Bellum, a law seeking to prevent war:
Chapter I article 2 paragraph 4 All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. (6)
If a dispute still arises:
Chapter VI article 33 paragraph 1 The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.(7)
The Charter finally acknowledges a situation when Jus Ad Bellum is possible. It is limited to the most direct, unambiguous, and pressing circumstances of self-defense, precluding preemptive attacks:
Chapter VII article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. (8)
The reason this path to peaceful resolution is considered possible lies with the creation the brand new UN Security Council:
Chapter VI Article 37 Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council
If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate (7)
This council is authorized to use force to protect the nation under attack:
Chapter VII article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Chapter VII article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nation (8)
To summarize, the charter is attempting to accomplish same attitude toward national self-defense that most citizens have toward private self-defense. In all but the most chaotic states, an average person won’t take self-defense into their own hands unless the need is extremely pressing in form of a current attack on their person. If they have a choice, people usually rather turn to the police and judicial system for protection. The UN is to fulfill that “police” role. Imagine person A is arrested for killing person B. In court, he claims to have acted preemptively, as person B was planning to kill him. Person A would still be looked at with suspicion for not turning to the proper authorities first. If, However, B has shot first, shooting back would be acceptable in most legal systems – Hence article 51 in the charter.
1) Harvard Law School – http://guides.library.harvard.edu/c.php?g=310988&p=2079383
2) Blue Shield – http://uscbs.org/1899—1907-hague-conventions.html
3) Yale Law School: http://avalon.law.yale.edu/20th_century/hague03.asp
4) ICRC – https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp
5) ICRC – https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/470?OpenDocument
6) UN Charter – http://www.un.org/en/sections/un-charter/chapter-i/index.html
7) UN Charter – http://www.un.org/en/sections/un-charter/chapter-vi/index.html
8) UN Charter – http://www.un.org/en/sections/un-charter/chapter-vi/index.html
9) UN Charter – http://www.un.org/en/sections/un-charter/chapter-vi/index.html