Talk:Laws of war

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Contents

1 False Colours 2 Are POWS are protected persons? 3 Subheadings 4 Only wars sanctioned by the United Nations

False Colours

Impersonating soldiers of the other side has been a violation of the laws of war since before the Napoleonic era; the SS troops were lucky to be shot out of hand, as they had lost _all_ protections of the laws of war. Remember that they used their American uniforms to man a roadblock to surprise and murder American soldiers behind their own lines.

This is not true for two reasons:

• War ships had for many centuaries often flown "False Colours" including the enemy's and providing that the did not fight under the False Colours had not commited a war crime.

• In the second world war both sides used this tactic on Land. Those SS soldiers who fired a gun in American uniforms had broken international law, but those who misdirected traffic had not. They might perhpase have been guilty of spying if captured, but if they returned to their own lines they could not.

At the Nuremberg trial (United Nations War Crimes Commission) of the planner and commander of Operation Greif, Otto Skorzeny went into this in detail and found him not guilty [1] (http://www.ess.uwe.ac.uk/WCC/skorzeny.htm). Otto Skorzeny defences of pulling of a (white) rabbit out of the hat in the form of Wing Commander Yeo-Thomas GC of the SOE helped his case. Philip Baird Shearer 13:20, 5 Sep 2004 (UTC)

"Impersonating soldiers..." does not apply to the use of false flags by warships, which is well documented. Maritime and admiralty law covers this in great detail.

The key point in impersonation is that soldiers who are wearing enemy uniform are in significant danger of losing the protections of a POW, regardless of their actions. Any aggressive act (i.e. misdirecting traffic or gathering intelligence) further imperils them, giving the appearance of being a spy, and any use of force dooms them if captured. Both American and German commandoes and escaping prisoners made use of impersonation, often successfully . . . but others were mistreated and/or executed after capture.

As you point out, any soldier or spy who makes it back to friendly lines is not in danger if captured in the future, for the mere act of wearing enemy uniform, unless they committed atrocities.

Thank you for your accurate contribution to the Wikipedia historical record. clarka 4 March 2005

• Shooting POWs after recapture even if not dressed in uniform is a war crime http://www.stephen-stratford.co.uk/great_escape.htm.
• Anyone who carried out Hitler's Commando Order and was involved in shooting commandos who were captured in uniform committed a War Crime. Afer the war the SAS hunted down some of the German who had executed captured SAS men, they were put on trial and found guilty.

In the Otto Skorzeny War crimes trial (http://www.ess.uwe.ac.uk/WCC/skorzeny.htm) There are a number of legel arguments on the wearing of enemy uniforms during World War II. But the German and US military seem to be in agreement on it:

Paragraph 43 of the Field Manual published by the War Department, United States Army, on 1st October, 1940, under the title " Rules of Land Warfare ", says: " National flags, insignias and uniforms as a ruse-in practice it has been authorised to make use of these as a ruse. The foregoing rule (Article 23 of the Annex of the IVth Hague Convention), does not prohibit such use, but does prohibit their improper use. It is certainly forbidden to make use of them during a combat. Before opening fire upon the enemy, they must be discarded ". The American Soldiers' Handbook, which was quoted by Defence Counsel, says: " The use of the enemy flag, insignia and uniform is permitted under some circumstances. They are not to be used during actual fighting, and if used in order to approach the enemy without drawing fire, should be thrown away or removed as soon as fighting begins ".

The procedure applicable in this case did not require that the Court make findings other than those of guilty or not guilty. Consequently no safe conclusion can be drawn from the acquittal of all accused, but if the two above-mentioned American publications contain correct statements of international law, as it stands today, they dispose of the whole case for the Prosecution, apart from the two instances of use of American uniforms during actual fighting.

If they re-direct traffic they are not spying which is to "obtain information concerning one belligerent in the zone of belligerent operations with the intention of communicating it to the other belligerent " (Article 29 of the Annex to the Hague Convention, 18th October, 190.7). In one case at the Skorzeny trial that was a man Kocherscheid who said that yes he was spying in an American uniform! But as he was a spy and he returned successfully to his own lines he could not be tried as a spy (Article 31). He said this because he had shot at Americans while in a US uniform. But the commentary says:

The accused in this case, however, were not tried as spies but were tried for a violation of the laws and usages of war alleged to have been committed by entering combat in enemy uniforms. Articles 29-31 of the Hague Convention have therefore no application in this case and it would appear that the accused Kocherscheid's acquittal was base on lack of sufficient evidence ...

The court did not find Skorzeny guilty of a crime by ordering his men into action in American uniforms. He had passed on German legal experts warning to his men, that if his men were to fight in American unforms they woul be breaking the laws of war, but they probably were not doing so just by wearing the uniform. Philip Baird Shearer 13:43, 4 Mar 2005 (UTC)

Are POWS are protected persons?

On capture POWs have ceased to be individuals engaged in warfare under GCIII 3.1 they become "Persons taking no active part in the hostilities" .

GC III: Article 11 (bold in text here for illustration)

In cases where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement.

For this purpose, each of the Protecting Powers may, either at the invitation of one Party or on its own initiative, propose to the Parties to the conflict a meeting of their representatives, and in particular of the authorities responsible for prisoners of war, possibly on neutral territory suitably chosen.

For example the WWII POWs in chains argument between Germany and Britain mediated by the Swiss. So I think that POWs are protected persons in regards to GCIII and civilians are protected persons in GCIV. Therefore I intend to restore to the previous version before the

Cecropia (Talk) (POWs are belligerants. They are protected by the laws of war, but they are not "protected persons," which is a special definition.)

Edit Philip Baird Shearer 19:06, 7 Sep 2004 (UTC)

Philip, this is a semantic issue. A person protected by the various laws of war is not the same as a "Protected Person," though the common sense meaning would suggest they are. A "Protected Person" means specifically a nonbelligerent who, so long as he maintains his nonbelligerency, is "protected" from capture by a belligerent force, except for criminal actions.

All persons in a war zone are, at the outset, either belligerents or protected persons. You don't get to switch between categories, except in very specific circumstances. For example, a protected person who formally enlists in an armed force while not in the heat of battle can then become a belligerent. A soldier after discharge could become a protected person.

I suppose the distinction should be better defined. I will make some changes to the main text to clarify the point. -- Cecropia | Talk 19:41, 7 Sep 2004 (UTC)

I agree with what you are saying, because as you say the words of the article are ambiguous. All (most?) the GCs refer to "protected persons" which means that the people in a treaty (GCIII GCIV etc.) which that treaty protects from arbitrary treatment, are "protected persons". So protected persons vary from treaty to treaty. You need to define what you mean by protected person (which seems to be the definition in GCIV).

But I do not think that that is a good idea. There are several different categories of states and people involved in a war, but as "protected persons" depends on the treaty, it is not a category. The Belligerent "Parties" (States etc), belligerent personnel (Soldiers etc) and civilians of the parties are categories (or actors). There are also neutrals,[States and International Organisations and their personnel, which include: neutral civilians ,diplomats, UN and ICRC workers;] and our old favourite "unlawful combatants" including mercenaries to name a few more. I think that most of the information is already in the article, but the article needs reformatting to make this clear. I think subheadings would help with this. Philip Baird Shearer

Subheadings

I think that the article needs modification so that subheadings deal with different aspects of the laws of war and the duty they impose on the different actors involved in war. Not only would the article be easier to read it would allow people to contribute to specific areas. Each subheading ought to have a paragraph on the laws (and where they come from which treaty etc.) and then a paragraph with an example. Here is a first (rough) draft for a list of subheadings:

== International relations ==

UN Charter etc.

eg Falklands war (never declared or called as such by HMG during the war) because of UN charter obligations.

== Belligerent State's maratime obligations ==

Hague: Flying False colours, neutral shipping, boarding and inspecting etc.

How all out submarine warfare of WW I & II has modified the customs of maratime warfare since Hague.

=== Belligerent States' obligations ===

Hague, GC, custom (and other treaties)

eg none use of weapons of mass destruction, how to negotiate a surrender, POWs (GCIII), to dress their soldiers in a recognisable uniforms, not to use dum-dum bullets, land mines. etc.

== Belligerent State's obligations to private property and none belligerents ==

Hague, GC, customs etc. eg Civilians (GCIV)

==The individual's responsibilities for war crimes under international law ==

"only obeying orders", Nuremberg, Yugoslavian war crime tribunal in the Netherlands, the International Court, etc.

Enought for now Philip Baird Shearer 10:18, 8 Sep 2004 (UTC)

I apologize for not getting back to this so far. Your approach seems reasonable but there is a lot that needs clarification in general. Will try to make some useful comments soon. -- Cecropia | Talk 04:34, 11 Sep 2004 (UTC)

Only wars sanctioned by the United Nations

I removed:

Some States and commentators have recently argued that only wars sanctioned by the United Nations comply with international law.

a) This is just not true all states reserve and have the right to self-defence (Article 51 of the UN Charter). Philip Baird Shearer 15:35, 22 Mar 2005 (UTC)

b) There are two sides to a war. One side may comply with international law whist the other does not. So wars do not comply with international law belligerent in a war may or may not comply with international law.

c) Not all wars are of an international nature in which case under Article 2.7.: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter" Philip Baird Shearer 15:35, 22 Mar 2005 (UTC)

Hey, I think the argument I entered is totally bogus, morally, legally, and practically. But there is no disputing that some states (e.g., Norway) and some commentators (e.g., Jimmy Carter) claimed that the invasion of Iraq violated international law because it wasn't sanctioned by the UN. --Leifern 16:15, 2005 Mar 22 (UTC)

This is a specific war and a specific case, which comentators are saying that it is a general rule that "only wars sanctioned by the United Nations comply with international law"? Philip Baird Shearer 16:21, 22 Mar 2005 (UTC)

If someone says "the war against X is illegal because and only because it wasn't sanctioned by the United Nations," I think it's safe to infer that "only wars sanctioned by the United Nations are legal." As I said, I totally disagree with the argument, but it is a fact that the argument was made, even if the argument was wrong. To give another example: If I said "it never rains in Southern California," then one can trutfully write that "Leifern said that it never rains in Southern California" and also write that "Leifern is wrong in this assertion - it does indeed rain in Southern California sometimes." --Leifern 16:32, 2005 Mar 22 (UTC)

I think your logic is faulty. All murders are killings, but not all killings are murder. If someone says "Mr X murderd Mr Y because the a jury in the state of southern California found him guilty of murder". It can not be inferred from that that all killings in California are murder. In this case I have given several examples which clearly refute the statement that "only wars sanctioned by the United Nations comply with international law". I await with interest for you to give a source of an authoritative commentator or national spokesperson who has made a statement from which this can be inferred. Philip Baird Shearer 17:14, 22 Mar 2005 (UTC)

Do a google search on "illegal war united nations" and you will find that Kofi Annan and several others have claimed that the war was illegal because it didn't have SC sanction. At the time, Jimmy Carter made the same point in a New York Times op-ed. That should do it. Other than that, you're invoking the wrong logical fallacy. If any war is declared illegal because and only because it lacked UN approval, then it must follow that any war that lacks such approval is illegal. It's actually very basic logic. Whether people want to live with it is another matter. --Leifern 18:24, 2005 Mar 22 (UTC)

There has been a debate in Britain over the last month if HMG had clear legal advice over the British involvement in the Iraq invasion. But no one in Britain says that because the British invasion of Iraq may have needed another UN resolution to be legal, that it follows that Britian's participation in the Falklands War was also illegal, because it was conducted under Article 51 of the UN Charter and did not need a UN resolution to be legal. Neither is anyone is saying that because the liberation of Q8 could be justified under Article 51, that the invasion of Iraq 10 years later is justified. The invasion of Iraq can not be expanded into a general rule "that a belligerent has to have a UN resolution to legalise a belligerent's participation in a war". It depends on the circumstances of the war as to what makes a belligerent's participation legal under its international treaty obligations. Philip Baird Shearer 01:01, 23 Mar 2005 (UTC)