Editing Law of war (section)

==Modern sources==

{{See also|Sources of international law}}
[[Image:signing of the first geneva convention.jpg|thumb|The signing of the [[First Geneva Convention]] by some of the major European powers in 1864]]

The modern law of war is made up from three principal sources:<ref name="What is IHL?"/>

* ''Lawmaking [[treaty|treaties]]'' (or ''conventions'')—see [[#International treaties on the laws of war|§ International treaties on the laws of war]] below.
* ''Custom''. Not all the law of war derives from or has been incorporated in such treaties, which can refer to the continuing importance of customary law as articulated by the [[Martens Clause]]. Such [[customary international law]] is established by the general practice of nations together with their [[Opinio juris sive necessitatis|acceptance that such practice is required by law]].
* ''General Principles''. "Certain fundamental principles provide basic guidance. For instance, the principles of distinction, proportionality, and necessity, all of which are part of customary international law, always apply to the use of armed force."<ref name="What is IHL?"/>

[[Positive law|Positive]] [[international humanitarian law]] consists of [[Treaty|treaties]] (international agreements) that directly affect the laws of war by binding consenting nations and achieving widespread consent.

The opposite of positive laws of war is customary laws of war,<ref name="What is IHL?"/> many of which were explored at the [[Nuremberg War Trials]]. These laws define both the ''permissive'' rights of states as well as ''prohibitions'' on their conduct when dealing with [[irregular military|irregular forces]] and non-signatories.

The Treaty of Armistice and Regularization of War signed on November 25 and 26, 1820 between the president of the [[Gran Colombia|Republic of Colombia]], [[Simón Bolívar]] and the Chief of the Military Forces of the [[History of Spain (1810–73)|Spanish Kingdom]], [[Pablo Morillo]], is the precursor of the International Humanitarian Law.<ref>{{cite web|url=http://publicaciones.defensa.gob.es/pprevistas/025f896b-fb63-65ab-9bdd-ff0000451707/index.html#/112/ |title=Publicaciones Defensa |publisher=Publicaciones Defensa |access-date=2019-03-07}}</ref> The [[Treaty of Guadalupe Hidalgo]], signed and ratified by the United States and Mexico in 1848, articulates rules for any future wars, including protection of civilians and treatment of prisoners of war.<ref>{{cite web|url=http://avalon.law.yale.edu/19th_century/guadhida.asp |title=Avalon Project - Treaty of Guadalupe Hidalgo; February 2, 1848 |publisher=Avalon.law.yale.edu |access-date=2019-03-07}}</ref> The [[Lieber Code]], promulgated by the Union during the [[American Civil War]], was critical in the development of the laws of land warfare.<ref>See, e.g., {{Cite journal | first=Grant R. | last=Doty | title=THE UNITED STATES AND THE DEVELOPMENT OF THE LAWS OF LAND WARFARE | volume=156 | journal=Military Law Review | page=224 | year=1998 | url=https://www.jagcnet.army.mil/JAGCNETINTERNET/HOMEPAGES/AC/MILITARYLAWREVIEW.NSF/20a66345129fe3d885256e5b00571830/6d99151e5dc7d05085256e5b00577b0d/$FILE/ATTR2A48/Volume156Doty.pdf| archive-url=https://web.archive.org/web/20060718133040/http://www.jagcnet.army.mil/JAGCNETINTERNET/HOMEPAGES/AC/MILITARYLAWREVIEW.NSF/20a66345129fe3d885256e5b00571830/6d99151e5dc7d05085256e5b00577b0d/$FILE/ATTR2A48/Volume156Doty.pdf| url-status=dead| archive-date=July 18, 2006}}</ref> 

Historian Geoffrey Best called the period from 1856 to 1909 the law of war's "epoch of highest repute."<ref>GEOFFREY BEST, HUMANITY IN WARFARE 129 (1980).</ref> The defining aspect of this period was the establishment, by states, of a positive legal or legislative foundation (i.e., written) superseding a regime based primarily on religion, chivalry, and customs.<ref>2 L. OPPENHEIM, INTERNATIONAL LAW §§ 67–69 (H. Lauterpacht ed., 7th ed. 1952).</ref> It is during this "modern" era that the international conference became the forum for debate and agreement between states and the "multilateral treaty" served as the positive mechanism for codification.

The Nuremberg War Trial judgment on "The Law Relating to War Crimes and Crimes Against Humanity"<ref>[http://www.yale.edu/lawweb/avalon/imt/proc/judlawre.htm Judgement : The Law Relating to War Crimes and Crimes Against Humanity] {{Webarchive|url=https://web.archive.org/web/20160908231902/http://www.yale.edu/lawweb/avalon/imt/proc/judlawre.htm |date=2016-09-08 }} contained in the [[Avalon Project]] archive at [[Yale Law School]].</ref> held, under the guidelines [[Nuremberg Principles]], that treaties like the [[Hague Convention of 1907]], having been widely accepted by "all civilised nations" for about half a century, were by then part of the customary laws of war and binding on all parties whether the party was a signatory to the specific treaty or not.

Interpretations of international humanitarian law change over time and this also affects the laws of war. For example, [[Carla Del Ponte]], the chief prosecutor for the [[International Criminal Tribunal for the former Yugoslavia]] pointed out in 2001 that although there is no specific treaty ban on the use of [[depleted uranium]] projectiles, there is a developing scientific debate and concern expressed regarding the effect of the use of such projectiles and it is possible that, in future, there may be a consensus view in international legal circles that use of such projectiles violates general principles of the law applicable to use of weapons in armed conflict.<ref>{{cite web|url=https://www.un.org/icty/pressreal/nato061300.htm#IVA2 |archive-url=https://archive.today/20000816033518/http://www.un.org/icty/pressreal/nato061300.htm#IVA2 |url-status=dead |archive-date=August 16, 2000 |title=The Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia: Use of Depleted Uranium Projectiles |publisher=Un.org |date=2007-03-05 |access-date=2013-07-06}}</ref> This is because in the future it may be the consensus view that depleted uranium projectiles breach one or more of the following treaties: [[The Universal Declaration of Human Rights]], the [[Charter of the United Nations]], the [[Convention on the Prevention and Punishment of the Crime of Genocide|Genocide Convention]], the [[United Nations Convention Against Torture]], the [[Geneva Conventions]] including [[Protocol I]], the [[Convention on Conventional Weapons]] of 1980, the [[Chemical Weapons Convention]], and the [[Convention on the Physical Protection of Nuclear Material]].<ref>[http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2002.38.En?Opendocument E/CN.4/Sub.2/2002/38 Human rights and weapons of mass destruction, or with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering] ([http://www.unhchr.ch/huridocda/huridoca.nsf/AllSymbols/22481F4157DE6274C1256C00004C29BB/$File/G0214167.pdf?OpenElement backup]).</ref> The lack of a formal final authority on [[international law]] and warfare further aggravate this problem. The lack of a final authority leaves states open to interpret the laws of war in their advantage, because they know there will not be severe punishment.<ref>{{Cite book |last=Erakat |first=Noura |title=Justice for some: law and the question of Palestine |date=2019 |publisher=Stanford University Press |isbn=978-0-8047-9825-9 |location=Stanford, California |pages=179-183}}</ref>