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What is Legal in War?

by Claire Simmons | Photography by Ron Haviv, Maciek Nabrdalik

The Tuol Sleng Genocide Museum chronicles the Cambodian genocide. Located in Phnom Penh, the site is a former secondary school showing images of victims held at Security Prison 21 and killed by the Khmer Rouge regime from 1975 until its fall in 1979. Image: Courtesy of Ron Haviv,VII

The horrors and destruction of war may lead one to believe that no laws apply in conflict, and that any attempt to regulate violence may seem pointless. Yet the very fact that we are horrified by certain acts more than others in such contexts indicates that we believewars should have limits. This is a conviction that can be traced back centuries, although there may not always have been a common understanding of what these limits should be.

Our modern laws of waroriginated in the 19th century, as states agreed to sign the first international conventions to protect civilians and the sick and wounded in combat. Multiple international treaties have followed, including thefour Geneva Conventions of 1949, which have become the most globally recognized texts regarding the laws of war. These four documents were drafted in the immediate aftermath of the Second World War, which had provided a strong incentive for states to write down and commit to respect the commonly accepted rules and customs of war.

The concept of a “war crime” emerged alongside these treaties, as a term to describe the most serious violations of these laws of war. The international prosecution of such war crimes in courts became established with the Nuremberg and Tokyo Tribunals following the Second World War, and in the 1990s, with international tribunals in the former Yugoslavia and Rwanda set up by the United Nations.

But the laws of war can also matter outside of the courts. They can matter to individuals harmed by the violence, who may want recognition that they have been victims of injustice, even if they cannot go to court. They can also matter to soldiers involved in the conflicts, who want to know they are fighting for a just cause in a just manner.

Under international law today, the term “war crime” refers to specific, serious violations of international humanitarian law that lead to individual criminal responsibility. Not all violations of the laws in war are war crimes, however, and not all civilian deaths in war constitute war crimes, or even violations. Furthermore, the applicable laws of war and the enforcement mechanisms available (including international courts) depend on which treaties have been signed by which state.

Although the common understanding of the term “war crime” may have become divorced from the legal context, there is still value in understanding its precise legal meaning as well as the broader laws that apply in war to ensure credible reporting and possibly contribute to combating impunity for war crimes. It is also important to realize that some acts of war have serious consequences, including loss of life or serious injury to civilians, without being war crimes. Reporting on these acts while recognizing that no legal violation may have occurred can still be important to hold states politically accountable for thereduction of civilian harm in armedconflict.

This chapter lays out a basic overview of the laws that apply in armed conflict—and which acts may or may not be legal. It is not exhaustive, and further resources may be found in later parts of this guide. The International Committee of the Red Cross (ICRC) is an authoritative source for the interpretation of the applicable rules in armed conflict, and providesresources useful for journalists reporting in armed conflict.

A radio station broadcaster reads a list of names of missing children twice a day, provided by the ICRC, in the hopes of reuniting families, in Minova, Democratic Republic of the Congo, on Jan. 29, 2009. Numerous families have been connected this way. Image: Courtesy of Ron Haviv,VII