Effect of War on a Country’s Legal System7 min read
By: Shaurya Raj
Published on: May 14, 2022 at 14:15 IST
Humans have used violence to resolve conflicts from the dawn of civilization. As a result, the suffering caused by the violence has been enormous ever since. Furthermore, violence has been right up there with developments in all sectors of life. People used to fight with swords to gain control of other rulers’ kingdoms.
Then came the discovery of gunpowder and cannons, and as wars raged around the world, there was a need for more resources, which led to the development of nuclear weapons. However, with so much violence throughout history, civilians and those who are unable to fight have suffered and continue to suffer the most. As a result, some people have restored in order to reduce the brutality of the war.
With so many countries in the world and everyone taking constructive efforts toward globalisation, countries engage on a variety of platforms. There can’t be no disagreements among states in this kind of contact and competitiveness. Nations use a variety of approaches to resolve these conflicts, which can be split into peaceful and coercive approaches.
Negotiations, mediation, conciliation, investigation, arbitration, judicial settlement, and other peaceful methods are used, while coercive methods include retaliation, reprisals, embargo, pacific blockade, and intervention. When countries are unable to resolve their differences through coercion, they may turn to war.
Definitions of War.
Different jurists have defined war in different ways.
“War is a contention between two or more states, through their armed forces, for the purpose of overpowering each other and imposing such peace conditions as the victor pleases,” according to Oppenheim.
War in its most broadly recognized definition was “a contest between two or more governments, principally through their military forces, with the ultimate goal of each contestant or contestant group being to vanquish the other or others and impose its own conditions of peace,” according to Starke.
Different jurists have defined war in different ways.
The following are important components of war that can be deduced from the previous definitions:
- A conflict or violence between armed troops is known as war.
- There should be two or more States in opposition to each other. It cannot be called a war when groups within a same state are at odds with one another.
- Third, there is the engagement of armed forces, and non-combatants are not made targets in war.
- The basic goal of the war is to defeat the opposing state so that the victor may impose its rules on the loser.
The parties’ aim is referred to as Animus Belligerendi. Whether or not there is a conflict between two states is determined by their intentions. When states compete with each other, they might be said to be at war if they have this purpose. As a result, the states’ animus belligerendi can be derived from the following circumstances:
First, when states declare war on one another. It is an occasion in which states have stated their explicit goal.
Second, if the war is not explicitly declared, if the warring country treats it as if it were a war, or if the country takes violent or other measures equivalent to the war. Or if a third country believes that the war is intensifying between the two countries, regardless of whether the countries concerned treat it as a war. Then it will be treated as a war.
War in International Law.
Hostilities between two dynasties, nations, or people have been resolved by violence from the dawn of time. Until the late 1800s, no one considered it a societal evil. They believed that fighting was a need for survival and followed the survival of the fittest concept. As a result, harsh treatment of civilians during the conflict was the last thing on their minds. Following these tragedies, several treaties and customary international norms were drafted and approved as a means of regulating war over time.
The term ‘War’, left with little importance after the United Nations Charter of 1945, in Article 2(4), said that “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“.
Moreover, all of the Geneva Conventions are relevant to armed conflicts, irrespective of whether or not they’re officially known as wars. In the Falkland Islands warfare in 1982, for instance, the United Nations Security Council, in Resolution 502, censured the Argentine intrusion of the islands as a ruin of the peace, no matter the reality that neither Argentina nor the UK had proclaimed war.
The policies of worldwide humanitarian law, as it’s far regarded officially, have plenty of international requirements that set out what can and can’t be viable all through an armed conflict. The precept motive for worldwide humanitarian law (IHL) is to hold up a few mortality in equipped armed conflicts, to sparing lives and lowering misery.
To do that, IHL manages how wars are battled, adjusting angles: debilitating the foe and restricting torment. The requirements of struggle are universal. The Geneva Conventions (which can be the center factor of IHL) were showed through each one of the 196 states. Not many international preparations have this diploma of sponsorship.
There were officially two Hague conventions; first in the year 1899 and then in 1907. The Hague Conventions were among the first principal statements for the laws of war and atrocities in the structure of secular international law.
The 1899 Hague Convention laid down the following points:
Pacific Settlement of International Disputes – Incorporated the formation of the Permanent Court of Arbitration.
Laws and Customs of War on Land – Contains the laws to be utilized in all war ashore between signatories. It itemizes the treatment of detainees of war and incorporates the arrangements of the Geneva Convention of 1864.
Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864 –Accommodates the assurance protection of hospitals ships and involves them to treat the injured and wrecked mariners of every single contentious party.
The Second Hague Conference, in 1907, instigated a few significant progressions from the 1899 Convention. The Second Peace Conference was held from 15th June to 18th October 1907. It was called at the recommendation of U.S. President Theodore Roosevelt in 1904, but it was conceded due to the yet another war between Russia and Japan.
Law by customs.
“Custom is the manifestation of those values which have commended themselves to the national conscience as principles of fairness and public utility,” according to Salmond. As a result, it is appropriate to state that law by custom is an established pattern of behaviour that can be objectively proven within a social situation. When discussing customary law throughout the conflict, two important aspects must be considered:
- A specific legal procedure is followed and.
- It is regarded as a law by the relevant parties (opinio juris).
In Customary Law, judicial decisions are extremely important. Following World War II, an international military tribunal was established in Nürnberg and Tokyo to prosecute war criminals.
They also provided instructions for the other international courts to follow, as the quantity of lawsuits following the conflict appeared to be very high.
For example, in Shimoda v. Japan (1983), a Japanese court held that the use of atomic weapons against Nagasaki and Hiroshima was illegal under international law, not just because of the type of weapon used, but also because the bombardment of civilians in those two cities, by any means, was illegal under Article 23 of the Hague Conventions of 1907. This set a precedent for all subsequent battles to refrain from using such lethal weaponry.
Another permissible kind of customary law is opinio juris, which is shown by the Hague Convention’s Martens clause. Which plainly said that regardless of whether a state is a party to the current convention, it must adhere to humanitarian law
War Legal Regulations.
Grotius introduced the concept of “just war“, limiting the unlimited power of states to make war. In his opinion, war can be resorted to as long as the rights of others are not violated and consequently the use of force that does not violate the rights of others is not unjust. Even some 19th-century writers distinguished between “just wars and unjust wars” and between “right wars and wrong wars“.
Woosley has argued that war can be waged to bring about good or prevent evil by force, and that just war is an attempt to obtain justice by force or prevent injustice, or in other words, to bring the injured party into a just and correct state reset the mind. Behavior in inflicting a well-deserved evil.
Since the dawn of mankind, people around the world have realized one thing: differences of opinion are likely to arise between countries, which can lead to violence. Therefore, the focus must be on minimizing the suffering of these armed conflicts between countries and keeping the non-combatants and the incompetent out of the war. All international humanitarian law has so far been formulated in this way.
Today, countries resort to peace instead of violence to resolve their disputes, which is a great sign of humanity everywhere because it is said that nothing good ever comes out of wars, which is painfully true, and most countries have accepted this fact barring a few.
Edited By: Advocate Ramsha Shaikh, Associate Editor at Law Insider