War crimes and the efficacy of international law have been under renewed scrutiny amid continuing conflict in the Middle East. As targeted strikes kill children and healthcare workers in huge numbers, and allegations of illegal conduct by both leaders and military members mount, experts weigh in on whether there is a widening impunity gap rendering the laws of war irrelevant.
Despite geographical distance from the current conflicts, Australia is grappling with those questions as it endorses US military action in Iran which is largely considered illegal by international law experts. Australia supported US strikes in February to “prevent Iran from obtaining a nuclear weapon” — but humanitarian law expert Dr Shannon Bosch told 7NEWS.com.au that legal experts largely agree the strikes were illegal.
Bosch said the strikes could violate article 2(4) of the UN Charter for failing to get UN Security Council authorisation, and “do not constitute self-defence” under article 51. However, these would be potential breaches of international law — or jus ad bellum — not International Humanitarian Law (IHL), otherwise known as the laws of war.
War crimes are prosecuted under IHL, or jus in bello — which refers to “the way” in which that warfare is conducted. Government-level war crimes do exist but tend to involve acts such as starvation as a method of warfare, such as Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant have been accused of. “Prosecuting high-profile, Western-allied leaders for alleged war crimes has proven practically and politically challenging,” Bosch said.
There are roughly 161 laws of war, and they are prosecuted through national courts, or the International Criminal Court (ICC) which steps in when states are unwilling or unable to do so. The Geneva conventions are the cornerstones of IHL, made up of four different treaties to protect the innocent, sick and wounded — and agreed to by every country in the world.
IHL is also built into military training to inform the way warfare unfolds, but military training varies globally, as do ethical norms which can be affected by both combat and culture. Ethics Centre executive director Dr Simon Longstaff has spent three decades teaching military ethics in Australia and overseas, preparing soldiers for “the particular ethical challenges that come from asymmetrical warfare”. He said that “ethics comes before law,” and described IHL as the “codifying” of human ethics.
