Skip to main content

The Sixth Commandment in the Hebrew bible (the Torah, or ‘Old Testament’) is often mistranslated as ‘Thou Shall Not Kill’. Properly understood, what the commandment actually forbids is murder or unjustified killing. As it turns out, the God of the Jews (and later, of the Christians, and later, of Islam) is all good with killing; His approval just depends on the reasons behind it (indeed, the Almighty’s exhortations go well beyond the conduct that is acceptable under the rules of international law).

His followers have acted accordingly. The ultra-religious Jewish Zealots fomented war against Roman occupation. The Prophet Muhammad was himself a successful general. A certain medieval French peasant girl successfully took up arms at the behest of the Lord, where she directly threatened to have killed any English soldier who did not leave France, and was herself skilful at directing the use of artillery, the modern battlefield’s most casualty-producing weapon.

In 2022, Pope Francis expressed the modern view succinctly: self-defence in the face of aggression is ‘not only lawful but also an expression of love of country’. Of course, there are religions and philosophies that embrace a comprehensive pacifism, and others that allow for indiscriminate killing; we need not concern ourselves with these for the time being. International law reflects the Western standard, expressed above, that draws a reasoned distinction between permissible and impermissible killing by considering the context of the act and the status of the killer and of the person who is killed.

Let us explore that legal distinction: why international law matters was explained in a previous article, if memories need refreshing on that score. Quick recap here: international law is the closest thing we have to universally accepted norms of behaviour, analogous to the ‘fear of the gods’ which constrained the behaviour of all decent people, even if they came from different religious traditions. Hopefully, we’ll explore in a subsequent article the separate but related topic of whether waging any given war is itself legal (the ‘law of wars’ as contrasted to the ‘law in war’ which we will examine, below; I will spare you the Latin). For now, we’ll assume we have a lawful war and restrict our enquiry to the rightness or wrongness of conduct within the context of that war.

The legal analysis starts with who is doing the killing. Although this isn’t the only way to look at this—we might be conflating a few legal concepts—for our purposes we can usefully think of individuals in three different categories.

First, in international law, people engaged in certain lines of work are so disfavoured that there exists ‘universal jurisdiction’ for any country to capture and prosecute them wherever they may be found: maritime pirates and slave traders fall into this category. These ‘enemies of all mankind’ represent the lowest position on the international legal hierarchy and are subject both to the aforementioned universal jurisdiction as well as to the widest array of legal (and extra-legal) ‘exemplary’ punishments.

The next category of people—typical, civilian people —provides the standard of responsibility for killing with which we are most familiar. They are required to act within the bounds defined by the criminal law of the place where they are located. When it comes to killing, what is subject to punishment is defined by that local law and must be demonstrated to the satisfaction of that local law. In both US and Australian law this is primarily a question of State (or Territory) law, with the federal (or Commonwealth) criminal law power being limited to certain types of crimes (the situation happens to be reversed in Canada, where criminal law is mostly federal). Is there an ‘affirmative defence’ to the killing such as self-defence? Are ‘crimes of passion’ excusable? Was the killer mentally incompetent to the point where he or she should not be held to account? As a general matter, premeditated and deliberate killing is considered wrong and subject to punishment. Such crimes can usually only be prosecuted within the jurisdiction where they occur or are subject to tenuous extradition agreements that can allow criminal defendants to be transferred from the country they are in, to the country where the alleged crime occurred for trial and punishment.

Not so with our third category—the military personnel of a country engaging in warfighting. Military members have a qualified (conditional) immunity from legal responsibility for premeditated, deliberate killing, so long as that killing is undertaken in the context of regular military service and in accordance with the rules which constrain conduct in war. There are few opportunities to prosecute these folks, even when a crime in excess of their immunity is alleged. Often, criminal responsibility for acting outside the rules is possible only when the combatant’s own country decides to pursue allegations of wrongdoing. This qualified immunity is the essence of ‘prisoner of war’ (POW) status. That such immunity from prosecution exists makes sense. Without it, countries would not be able to field military forces: the individuals involved in every artillery strike, every ambush, and every cavalry charge could potentially be prosecuted at the conclusion of hostilities. The purpose of qualified immunity is to reconcile one of humanity’s most persistent and unpleasant activities from descending into unmitigated barbarity; prosecuting acts which go beyond what is permitted in the law of war is not primarily retributive but forms a part of that effort to curtail outright barbarity.

Like qualified immunity for combatants, the standards for the treatment of POWs highlight the settled view that fighting (and killing) as part of the military forces of one’s country is not inherently morally or legally culpable. On the contrary, military service is viewed as an honourable undertaking, albeit one which transgresses norms that are baked into civil society. For military members, this may mean they probably have more in common with enemy military personnel than they do with civilians on their own side, who have not experienced the rigors and horrors of wartime military service, at least not from the same side of the gun.

Just as our service members are legally blameless for waging war in accordance with the rules—notwithstanding that it involves killing—so are enemy combatants. Both are servants of their respective nations; both are essentially caught in the middle of a political dispute, putting their lives on the line in the pursuit of national victory. Demonising the enemy may make it easier to motivate one’s own troops to kill them, but it cuts against the grain of the principles which underlie the law of war.

So … what are the rules that apply to this third category—to soldiers, sailors, marines, and aviators fighting on land and at sea? (The rules that may apply in space are a whole other pressurised can of worms.) These rules—and there are an impressive number of them—are listed in the Geneva Conventions. The Conventions themselves codified earlier treaties as well as crystallising non-treaty international law in the aftermath of World War II. As such, they provide a handy summary of the law with which modern professional military people need be familiar.

Before we get into details, here are headline requirements that apply in all situations:

  • Humane treatment for all persons (without regard to race, religion, sex, or any similar criteria) who are not taking part in the hostilities. This consists of a duty to refrain from violence against civilians and to protect prisoners and the sick or wounded from harm as well as an absolute prohibition on extra-judicial killing, torture, cruel, humiliating, or degrading treatment, the taking of hostages, and of show trials.
  • Provision of medical care for the sick, wounded, or shipwrecked.

Beyond that, we will explore the international law rules as summarised and contained in the principal Geneva Conventions, which separate the rules into four categories: regarding the treatment of wounded and sick combatants on land; wounded, sick, or shipwrecked combatants at sea; the treatment of POWs; and the treatment of civilians in periods of armed conflict.

Obligations relating to the wounded and sick in ground combat

There is an affirmative obligation to search for and collect the wounded and sick as well as to secure the bodies of the dead and protect them against desecration. There is an obligation to exchange information regarding the wounded and the dead and to secure the personal effects of the dead. There are specific provisions detailed how the dead are to be buried and examined before burial (cremation is to be avoided). Information regarding the location of graves is to be recorded and exchanged.

There is a duty to treat the wounded without distinction; medical triage must be performed without regard to which side of a conflict the patient is on. ‘Only urgent medical reasons will authorize priority in the order of treatment to be administered.’ Biological experimentation on the sick or wounded is expressly prohibited.

These obligations are owed not just to the wounded and sick belonging to the enemy’s regular armed forces, but also to wounded and sick members of regular militia forces and to authorised civilians accompanying the armed forces (correspondents, logistics contractors, civilian air or marine crews, etc). These obligations are owed even to irregular militia forces ‘provided they carry arms openly and respect the laws and customs of war’.

Special rules safeguard medical facilities and vehicles. Medical units, hospital ships, aircraft, and ambulances may not be attacked unless they are improperly used to stage attacks (even then, warning must first be given). Similarly, transports of sick and wounded personnel—or of medical supplies—benefit from the same protections. Medical aircraft must land for inspection, if requested.

Medical personnel and military chaplains ‘shall be respected and protected in all circumstances’; they are not considered party to the fighting. The same considerations apply to military personnel temporarily detailed to medical support functions (such as band members serving as stretcher-bearers) as well as to civilian medical volunteers serving as part of designated service organisations. Medical personnel do not lose their status as non-combatants if they are armed for their own self-defence or if the medical units or facilities in which they work are protected by armed guards. Providing care for civilians does not cause a military medical facility to lose its special status. Nor does the provision of veterinary services.

Some additional rules:

  • If a party has to leave behind wounded or sick in retreat, it is obligated to leave behind medical personnel to treat the casualties in so far as the military circumstances permit.
  • Excessive destruction or appropriation of property is prohibited if it is ‘not justified by military necessity’ or in the event it is ‘carried out unlawfully or wantonly’.
  • Local inhabitants may provide additional care for the sick and wounded as a matter of charity and they may not be punished for so doing.
  • Medical supplies may not be intentionally destroyed; medical buildings shall be reserved for use in the care of the sick and wounded.

Finally, all countries have a positive obligation to suppress acts that may be in violation of these rules, to provide punishment for any breaches of the rules, as well as to investigate alleged violations. Countries cannot absolve themselves of liability arising out of violations.

Obligations relating to wounded, sick, and shipwrecked combatants at sea

All of the principal rules that apply on land also apply to armed conflict at sea (the duty to provide impartial medical care to regular and identifiable regular or irregular militia forces, the duty to search for the sick or wounded after battle, provisions regarding the exchange of information of the sick, wounded, or dead, provisions regarding the burial of the dead, the provisions regarding the use of armed guards at medical care facilities not depriving them of their protected status, etc).

There appears to be an expectation that the dead will be provided with an honorable burial at sea, perhaps due to the limited capacity of warships to preserve bodies of the deceased. Similar to the bias against cremation on land—presumably to allow for post-mortem examination, if needed—returning the bodies to land, and ultimately to the family of the deceased, is preferred.

The sick or wounded may be taken as prisoners of war. They may even be taken from a hospital ship. The POWs must, however, be provided with care. Medical personnel and chaplains on a hospital ship, on the other hand, may not be subject to capture even if the ship has no patients. Such personnel on non-hospital ships are treated similarly to medical and religious personnel in land combat.

Hospital ships and lifeboats operated by military forces are treated like military hospitals and ambulances on land; they may not be attacked. Such ships are not classified as warships and may harbour in neutral ports. The names and descriptions of such ships must be provided to the enemy in advance of their use. Further, hospital ships may not use or possess any secret communication codes and they may not be used for any non-medical purpose. The enemy may board, inspect, control, or leave officials on board such vessels to ensure that this is the case.

Private or NGO hospital ships also may not be attacked. Such ships operated by neutral countries benefit from the same protections. In addition, ‘[s]hould fighting occur on board a warship, the sick bays shall be respected and spared as far possible’.

If sick or wounded POWs are returned to their home country, they may not take further part in the conflict (this reciprocal obligation not to re-join the fight, owed to an enemy that releases a POW from detention, is known as ‘parole’). Similarly, wounded belligerent personnel in the custody of a neutral nation must also be prevented by that country from taking further part in hostilities (the obligations of and to neutral countries is a big sub-topic which is outside the scope of this article—for the moment let us just acknowledge that neutral nations get caught up in war and what they can and cannot do, and what the warring parties can and cannot do to them and to persons in their custody, is a large and interesting topic of its own).

Other rules.

  • Coastal rescue craft ‘shall also be respected and protected, so far as operational requirements permit’, as well as the facilities on shore that support their humanitarian mission.
  • Ships used to convey medical equipment must be notified to opposing side, who may board and inspect them, but the ships or their cargo cannot be seized; neutral observers may be placed on board to ensure that these provisions are observed.
  • Medical aircraft shall be marked as such and are not subject to attack.

Obligations relating to prisoners of war

Listing all the individual rules might be overwhelming; the rules go into significant detail. If the reader is going to be involved in the administration of a wartime detention facility—a fraternity to which the author at one time belonged—he or she will need to review the individual rules in greater detail. As a general matter, the reciprocity of these requirements is designed to go some way towards ensuring that it is respected; each side would presumably have custody of each other’s sons and daughters.

Who is a prisoner of war? POW status (qualified immunity from prosecution) is provided to members of the armed forces of a country, to include members of militias or volunteer corps that are part of the armed forces. It is also extended to irregular militia forces, so long as they can be identified as such (have a chain of command, have a fixed, distinctive sign that is recognisable at a distance, carry arms openly, and act in accordance with the laws of war). Even random civilians who spontaneously take up arms against an invader benefit from POW status so long as they carry arms openly and act in accordance with the laws of war. Civilians who are authorised to accompany the force benefit from POW status if captured.

As the purpose of detaining POWs is to keep them from returning to active participation in the conflict, seriously sick or wounded POWs pose a very low risk and should, therefore, be returned to their home country as soon as they are well enough to be transported. Again, as there is no moral wrong in fighting for one’s own country, unlike detention in a prison, wartime detention of POWs is not punitive. As such, the honour and dignity of POWs must be protected, they must be allowed to wear their uniforms and rank insignia, and they ‘must at all times be humanely treated’ and protected from harm, insults, and public curiosity. Reprisals against POWs are prohibited.

The general standard for treatment of POWs in detention is treatment similar to that which a country applies to its own troops. POWs must be provided with quarters of suitable size and quality, accommodation during transport, and must have judicial punishments applied fairly to them (POWs can only be pursued for violations of law to the same extent as the detaining power applies military law to its own troops). POWs must be provided with adequate food to keep them ‘in good health and to prevent loss of weight or the development of nutritional deficiencies’. ‘Collective disciplinary measures affecting food are prohibited.’ There is an obligation on the detaining power to regularly record the body weight of detainees, presumably to ensure that they are not underfed.

POWs are the responsibility of the detaining power, and therefore must be protected from harm. They are to retain their personal protective equipment in captivity and must be moved away from the front lines. They must be protected from aerial bombardment or other hazards to the same degree as civilians are. POWs cannot be used as human shields; detention facilities may not be positioned so as ‘to render certain points or areas immune from military operation’.

Given that POWs must be protected by the detaining power, intentionally harming them is understandably off limits. No POW ‘may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest’.

Detention as a POW is not an interruption of the detained individual’s military service, but a continuation of it. During detention, POWs continue to be paid by the forces to which they belong, even though in detention they typically have no access to that pay. Consequently, the detaining power is obliged to provide POWs with advances against their home-country service pay for their own use. The detaining power settles up these accounts with the opposing side at the conclusion of hostilities.

That pay can be used to purchase comfort items. POWs will be permitted the use of tobacco, to send and receive mail, and to receive care packages with comfort items. They must be provided with a camp canteen for the purchase of ‘foodstuffs, soap and tobacco and ordinary articles in daily use’. Prices may not exceed those that pertain locally. Any profits must be applied for the benefit of the camp and the detainees.

Again, the standard of treatment of POWs by the detaining power is the same standard that it applies to the treatment of its own troops in garrison. Enlisted POWs can be compelled to work, but—given that they are on the other side of the conflict—only in non-military occupations. NCOs can also be compelled to work, but only in supervisory roles. Officers cannot be compelled to work (I can hear sergeant-majors around the world smiling as they read this) but officers can be assigned suitable work if they request it. Work by POWs is to be compensated in addition to the amounts POWs receive by way of service pay.

As POWs continue in their military service throughout the period of their detention, in detention POWs maintain military customs. This includes exchanging customs and courtesies with foreign personnel, such as those of the detaining power. In particular, POWs will render a hand salute to officers of the detaining power who are superior to them in rank. POWs assigned to a detention camp are obliged to render military courtesies to the camp commander, regardless of rank.

When questioned, POWs are only obliged to provide their name, rank, date of birth, and their service identification number (for some reason the movies seem to always leave out the date of birth requirement). Military members are obliged to carry identification cards with this information and this card cannot be taken away from POWs. Coercion may not be used to obtain information from POWs. POWs ‘who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind’.

The detaining power must cover the costs of POW welfare while in detention (food, hygiene items, clothing, adequate housing) as well as the costs of POW medical care.

POWs are presumed to have a duty to escape detention. If they do so successfully and are later recaptured, they cannot be punished for the earlier escape. If POWs are recaptured in the course of an unsuccessful escape attempt, the punishments that may be applied are limited to specified ‘disciplinary’ measures (loss of pay, confinement for up to 30 days, loss of additional privileges). As POWs are no longer in the fight there is no qualified immunity in connection with violence occasioned in connection with escape from detention; ‘violence against life and limb’ in the course of attempting to escape opens POWs up to potential judicial punishment for assault or murder. Once a POW has escaped, re-joins his or her own forces, and is again a combatant in the conflict, his or her qualified immunity resumes.

Although subject to the internal discipline of the camp, medical personnel and chaplains are not considered prisoners. They are ‘retained’ personnel. They continue to exercise their functions among the POWs while detained (conveniently reducing the burden placed on the detaining power to attend to the POWs’ medical and spiritual needs). Medical personnel and chaplains may not be required to undertake any work outside of their medical or spiritual functions.

The text of the third Geneva Convention—in which these rules are set out—is required to be posted inside POW camps. It must be posted in the language understood by the POWs interned in the camp. Finally, POWs have an unfettered and unlimited right to communicate (complain) regarding the conditions in which they are being held.

Obligations relating to civilians

The rules apply to all armed conflicts, not just to officially declared wars. They also apply when one country occupies the territory of another, even in the absence of armed resistance. The protections apply to the whole populations of parties to the conflict and are ‘without any adverse distinction based, in particular, on race, nationality, religion or political opinion’.

Providing protections required by the rules is the responsibility of the countries themselves, notwithstanding that particular individuals are involved in breaching the rules (domestic laws must exist to punish individuals who commit a grave breach of any of the rules in any event—such persons must be sought out and punished; the point here is that doing so does not relieve the occupying country of its own national responsibility for any breaches). Further, ‘[a]ny civilian, military, police or other authorities, who in time of war assume responsibilities in respect of protected persons, must possess the text of the Convention and be specially instructed as to its provisions’.

The protections afforded to civilians do not apply to individuals where there is a serious and legitimate basis to consider that they are insurgents, saboteurs, or spies. This mirrors the requirement in the other Geneva Conventions that one must fight openly, with an identifying insignia, and follow the laws of war to be granted the qualified immunity of a combatant. Spies and insurgents, by contrast, seek to exploit the distinction between combatants and non-combatants, operate clandestinely, and therefore are outside of the law. However, even such persons must ‘be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial’.

‘Particular protection and respect are accorded to the civilians in the following categories: the wounded and sick, the infirm, and to expectant mothers. Women—who have a particular history of vulnerability in wartime—must be protected ‘against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault’.

All civilians are entitled to ‘respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.’ There is a duty to search for the killed and wounded, to assist persons ‘exposed to grave danger’ and to offer protection against ‘pillage and ill treatment’.

Civilians cannot be subject to coercion, particularly not for the purposes of obtaining information. Physical suffering and ‘extermination’ are prohibited as are ‘murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.’ Collective punishment, pillage, and reprisals are prohibited. Hostage taking is prohibited.

There is a duty on the warring parties to conclude agreements to remove the ‘wounded, sick, infirm, and aged persons, children and maternity cases’ from encircled or besieged areas and to allow ministers of religion and medical personnel and equipment into such areas. Civilians and third-party nationals should be allowed to leave the war zone with some money and personal effects ‘unless their departure is contrary to the national interests of the State’. Any refusal to allow civilians to leave must be subject to a procedure for reconsideration. The names of persons prohibited from leaving and the reasons therefore must be provided to a neutral entity upon request.

Forcible transfers of civilians from occupied territory to the enemy country are prohibited for any reason. An occupied area may be evacuated for security or military reasons, but persons should not be removed from the occupied territory altogether, unless to do so is unavoidable. Evacuated persons should be returned home as soon as the fighting is over. Similarly, ‘[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’ Further, ‘[i]n no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.’

Civilians who are in confinement shall be humanely treated.

Civilians in occupied territories may not be compelled to serve in the occupying power’s armed forces or to take part in military operations. Civilians in occupied territories can only be compelled to work if they are over 18 years of age, and then only to support the needs of the occupying army or in ‘public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country’.

Civilian hospitals may not be attacked unless they are used to commit acts harmful to enemy forces. Before attacking such a hospital, however, there is a duty to warn and to allow a reasonable time for the alleged harmful, non-humanitarian acts to be discontinued. Medical treatment of combatants is not an ‘act harmful to the enemy’ for such purposes, nor is the presence of some small arms confiscated from combatant patients. Hospital employees, ambulance and other patient transports, and search and rescue crews are protected. These individuals and vehicles should be marked with medical insignia.

The shipment of medical and religious items intended for civilians in occupied territories shall not be interfered with (military medical supplies are dealt with in the rules relating to ground combat and those relating to war at sea). Similarly, ‘essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases’ shall be allowed to move freely.

Enemy aliens (civilians with the nationality of the opposing power) shall be allowed to receive relief intended for them, receive medical treatment, practise their religion, and to move away from areas subject to heavy fighting. They shall have the right to find work on the same basis as nationals. If an occupying power imposes measures that prevent enemy aliens from engaging in paid employment for security reasons, means must be provided for the enemy alien’s support and for the support of his or her dependents. Compulsory labour can only be imposed on the same basis as it is imposed on home country nationals, and must not be related to the conduct of military operations. The most restrictive measure that may be taken against enemy aliens is ‘assigned residence or internment’ if ‘absolutely necessary’ for security reasons. Individual internment decisions must be reviewed at least once every six months. Aliens requiring protection may request voluntary internment.

Persons who do not benefit from the protection of any country—like a minority persecuted in the enemy country—shall not be treated as enemy aliens simply because they hold a passport of the enemy country. Their situation is more analogous to that of a refugee or of a stateless person.

Children under fifteen years of age must be cared for and educated. They should be moved to a neutral third country for the duration of hostilities if possible.

There is a responsibility to allow individuals to share personal family news. The right can be restricted but not eliminated if circumstances require. The reunification of separated families must be facilitated.

Civilians must be able to communicate freely with relief agencies and visits by those agencies must be facilitated.

The occupying power cannot take steps to create economic misery in occupied areas in order to incentivise collaboration with them (‘All measures aiming at creating unemployment or at restricting the opportunities offered to workers in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited.’)

Unless ‘absolutely necessary [for] military operations’ the occupying power may not destroy real or personal property.

The occupying power has the authority to remove public officials from their posts, but ‘[t]he Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should they abstain from fulfilling their functions for reasons of conscience.’

The occupying power must make available food and medical supplies to the civilian population. ‘The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account.’ Fair value must be paid for requisitioned / confiscated items. Perhaps to accommodate situations where the occupying power cannot fulfil its obligations to provide for the civilians for which it has become responsible, the occupying power is obligated to allow the civilian population to be provided with ‘foodstuffs, medical supplies and clothing’ by relief agencies. Shipments of these items may be inspected. Diverting such shipments is only allowed in the interests of the civilian population of the occupied territory. Such shipments may not be subject to any tax. Relief agencies must be allowed to operate in the occupied territories subject only to ‘temporary and exceptional measures imposed for urgent reasons of security’.

The occupying power must preserve the medical and public health infrastructure of the territory, especially the capacity to prevent and suppress contagious disease. All types of medical personnel shall be allowed to carry out their duties. Civilian medical facilities can only be requisitioned by the occupier for short-term urgent needs to care for military personnel; interim arrangements must be made for the healthcare needs of civilians. Medical supplies needed for civilians cannot be seized.

Occupation may not entail cultural subjugation. The occupying power must permit religious leaders to minister to their flocks and accept the importation of religious books and articles. Further, ‘[i]n adopting measures of health and hygiene and in their implementation, the Occupying Power shall take into consideration the moral and ethical susceptibilities of the population of the occupied territory.’

There is a duty to preserve the pre-existing criminal laws that existed in the territory before it was occupied ‘with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention’. Any such new ordinances shall not come into effect before being published to the inhabitants and may not be retroactive in nature. The law courts of the occupied territory shall continue to function as before the occupation. The occupying power does have the right to enact such measures that are necessary to ensure the administration of the occupied territory and the occupying power may also operate ‘non-political’ military courts in the occupied territory and civilians may be brought before such courts for breach of any new ordinances enacted by the occupying power. In their operation such courts must adhere to well-known principles of fundamental legal fairness, which are enumerated in some detail. Pre-trial detention must count as time served as against any period of imprisonment subsequently imposed. The subsequent imprisonment upon a guilty finding must be in the occupied territory and must meet appropriate standards of detention. If the territory is later liberated, the detainees may not be retained by the occupying power.

Just as the legal regime of the occupier is legitimate if conducted according to the rules, so is the legal regime of the other side when it was applicable to the territory (or in the event that it again becomes applicable if the territory is liberated). Any offences committed ‘or opinions expressed’ before the period of occupation or during a temporary liberation of the territory—by civilians of the occupied country or by refugees from the occupying power—may not be prosecuted ‘with the exception of breaches of the laws and customs of war’.

In the absence of physical harm to occupying military personnel or serious damage to military installations, civil resistance to the occupation is not morally blameworthy. As such, civilian resistance to the occupying power is not subject to punitive measures, only to administrative internment. The fact that civilians in the occupied territory are not nationals of the occupying power, and are ‘not bound to it by any duty of allegiance’, is specifically called out. ‘[I]nternment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty.’

Penal provisions put in place by the occupying power may only specify the death penalty ‘where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.’ The death penalty is not available against persons under 18 years of age.

Internment of civilians for security or other reasons is permitted in facilities that are not prisons or POW camps; there shall be a right to appeal internment. Such detention should manifestly not be punitive in nature. The camps must be under the authority of a regular military officer or a civil servant of the occupying power. The rules relating to internees more or less re-create the regime applicable to POWs, although without the elements of military discipline and service pay. That said, ‘[a]ll internees shall receive regular allowances, sufficient to enable them to purchase goods and articles, such as tobacco, toilet requisites, etc. Such allowances may take the form of credits or purchase coupons’. ‘Furthermore, internees may receive allowances from the Power to which they owe allegiance, the Protecting Powers, the organisations which may assist them, or their families, as well as the income on their property in accordance with the law of the Detaining Power. The amount of allowances granted by the Power to which they owe allegiance shall be the same for each category of internees (infirm, sick, pregnant women, etc), but may not be allocated by that Power or distributed by the Detaining Power on the basis of discriminations between internees…’

The nature of escapes is slightly different, given that civilian internees have no duty to escape confinement and never benefit from the qualified immunity that combatants enjoy. Still, ‘[t]he Parties to the conflict shall ensure that the competent authorities exercise leniency in deciding whether punishment inflicted for an offence shall be of a disciplinary or judicial nature, especially in respect of acts committed in connection with an escape, whether successful or not.’

The detaining power has an obligation to provide internees with the necessities of life and medical care. Families are to be housed together if at all possible ‘together with facilities for leading a proper family life’. Internees can be grouped ‘according to their nationality, language and customs’. Labour of internees is only on a voluntary basis and can be outside the confines of the camp. Wages shall be at the same rates as pertain for similar work in the local area. In addition, ‘[i]nternees who work shall receive additional rations in proportion to the kind of labour which they perform. Expectant and nursing mothers and children under fifteen years of age, shall be given additional food, in proportion to their physiological needs.’

‘If general laws, regulations or orders declare acts committed by internees to be punishable, whereas the same acts are not punishable when committed by persons who are not internees, such acts shall entail disciplinary punishments only.’ Disciplinary measures shall not include those of a kind and type used with military forces (no ‘prolonged standing and roll-calls, punishment drill, military drill and manoeuvres, or the reduction of food rations’) and punishments shall ‘shall in no circumstances include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimisation. Identification by tattooing or imprinting signs or markings on the body, is prohibited.’ The camp commandant may order disciplinary punishments. These punishments may involve close confinement but may not entail a transfer of internees from the camp to prisons or other facilities used for the punishment of convicted criminals.

Internees select by ballot a committee of members to represent them to the camp authorities.

Brief absences from the camp to attend to urgent matters relating to the management of their property should be allowed to internees ‘provided this is not incompatible with the conditions of internment and the law which is applicable’. In addition, ‘[e]very internee shall be allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible. As far as is possible, internees shall be permitted to visit their homes in urgent cases, particularly in cases of death or serious illness of relatives.’

Internees shall be released ‘as soon as the reasons which necessitated his internment no longer exist, and in any event as soon as is possible after the cessation of hostilities. They shall be returned to their last place of residence. If the detaining power maintains control of the internee’s last place of residence and does not allow the internee to return, it must pay for repatriation to the border where the internee would presumably be allowed to continue his or her own journey (an individual cannot be denied permission to reside in his or her own country). ‘The Parties to the conflict shall, moreover, endeavour during the course of hostilities, to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time.’

Other considerations

In addition to the distinctions between killer and murderer, combatant and non-combatant, and the various categories of specially protected persons, the legal distinction between permissible and impermissible conduct in war is illustrated by a few other dichotomies. For example, nations are not only permitted, but arguably have a responsibility to develop and employ increasingly effective weapons in order to bring about a victory and shorten conflict. Indeed, technological or conceptual innovations often decisively affect the results of conflict. That said, some weapons—like chemical weapons, biological weapons, small exploding rounds, expanding rounds, poison, fragmenting rounds, incendiary weapons, blinding lasers, and many types of mines—are for the most part forbidden in warfare. Moreover, even if the use of any particular class of weapon is lawful, weapons must always be employed legally; military members always remain responsible for employing weapons in accordance with the existing law as set out above. 

There is a significant history to the development of these international rules. Broadly speaking, we have moved from a world where ‘[b]ooty and sex were the dividends of ancient war’ to a world where laws exists to prescribe what conduct is and is not allowed in war. A variety of international treaties and developments of the law have occurred since ancient times. Then, after the 1859 battle of Solferino, a Swiss businessman named Henry Dunant tended to the wounded; 29,000 were killed or wounded on both sides. It was the bloodiest land battle in Europe for 50 years. Dunant wrote an account of the battle’s aftermath and later advocated for the creation of a neutral and impartial organisation to assist the wounded in war: the International Committee of the Red Cross (ICRC). In 1901, Dunant became the awardee of the first ever Nobel Peace Prize. Despite the independent, private nature of the organisation, about 90 per cent of its funding is provided by our own national governments. The Geneva Conventions, administered by the ICRC, both embodied and developed the laws of war into the body of law we have today.

States have a responsibility to train their military personnel in the laws of war. Understanding and internalising these rules defines a military member as a professional and allows them to serve with honour. Overlooking (or avoiding) the rules in the pursuit of some short-term advantage is generally ineffective. More importantly, ignoring the rules undercuts the long-term interest of both militaries and the countries which they serve. The special status of military personnel in international law is only justified by the military discipline and honour with which they are required to serve.

00
Cite Article
Harvard
APA
Footnote
RIS
(Hendell, 2023)
Hendell, G. 2023. 'International Law and Military Conduct'. Available at: https://theforge.defence.gov.au/article/international-law-and-military-conduct (Accessed: 11 April 2024).
(Hendell, 2023)
Hendell, G. 2023. 'International Law and Military Conduct'. Available at: https://theforge.defence.gov.au/article/international-law-and-military-conduct (Accessed: 11 April 2024).
Garri Hendell, "International Law and Military Conduct", The Forge, Published: July 14, 2023, https://theforge.defence.gov.au/article/international-law-and-military-conduct. (accessed April 11, 2024).
Download a RIS file to use in your citation management tools.
DefenceTechnicalSocial

Defence Mastery

Social Mastery

Lead Self social-influence-level1
Lead Teams Lead Leaders social-influence-level2
Lead Operating Systems social-influence-level3
Lead Capability social-influence-level4
Lead Integrated Systems social-influence-level5
Ethical Philosophies social-ethics-level2
Moral Leadership social-ethics-level3
Stewarding the Profession social-ethics-level5

Disclaimer

This web site is presented by the Department of Defence for the purpose of disseminating information for the benefit of the public.

The Department of Defence reviews the information available on this web site and updates the information as required.

However, the Department of Defence does not guarantee, and accepts no legal liability whatsoever arising from or connected to, the accuracy, reliability, currency or completeness of any material contained on this web site or on any linked site.

The Department of Defence recommends that users exercise their own skill and care with respect to their use of this web site and that users carefully evaluate the accuracy, currency, completeness and relevance of the material on the web site for their purposes.

Related Articles

1 /4