598part VI Armed Conflicts

#part VI Armed ConflictsCHAPTER 22The Laws , of WarTJLnternational law has always been concerned as much with the conduct of s engaged in war as with their relations in time of peace. Indeed, the authors of classics in the law gave priority in space and attention to hostile relations am nations, a practice justified by the normality of such relations, compared with relative abnormality of peace among the states of Europe. The gradual deve ment of a stable international order favored the growth of rules governing rights and duties of states in time of peace, and in modern times, the law of occupies the bulk of any treatise on international law.Beginning with the Thirty Years War (1618-1648), isolated instances of mane practice in the conduct of hostilities acquired in the course of time the sti of usages and came to be regarded as customs, as binding legal obligations to be served by states at war with one another.What appears to be a paradox in international law is that war exists, that hostilities between the armed forces of states, and that there exists an extensive of rules to regulate such hostilities. The question is often raised whether war, a flict, can and does exist as a legal institution. In modern times, that claim mus: denied, except in the case of self-defense against attack, based on the Charter or United Nations.[footnoteRef:2] The laws of war apply to armed conflicts, whether or not they [2: See the excellent analysis by Greenwood, The Concept of War in Modem International Int. and Comp. L.Q., 283 (1987).]

called wars: Article 2, common to all four Geneva Conventions of 1949, applies .. to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.The Laws of War Lauterpacht pointed out that three principles have determined the growth of the laws of war: the principle that a belligerent is justified in applying any amount and any kind of force considered necessary to achieve the goal of a conflictthe defeat of the enemy; the principle that because of humanitarian considerations, any violence not necessary for the achievement of that goal should be prohibited; and the principle that a certain amount of chivalry, of the spirit of fairness, should prevail in the conduct of hostilities, that certain practices smacking of fraud and deceit should be avoided.[footnoteRef:3] [3: Lauterpachts Oppenheim, II, 227.]

The laws of war, as mentioned, took the initial form of rules of customary law, beginning even before the sixteenth century. Their modern development, however, has taken place through the application of conventional law, through the conclusion of a number of multilateral treaties.[footnoteRef:4] [4: See also Meron, Shakespeares Henry the Fifth and the Law of War, 86 AJIL 1 (1992).]

Early Attempts to Develop the Laws of War The middle of the nineteenth century witnessed the birth of this stage in the growth of the law. First among the major instruments dealing with modern war was the Declaration of Paris (1856), under which privateering was abolished, regulations were formulated concerning the status of noncontraband goods, and the rule was created that a blockade had to be effective in order to have legally binding force. There followed the Geneva Convention of 1864, concerned with the wounded in the field. The original treaty was replaced by a revision, signed in Geneva on July 6, 1906. In 1868, the Declaration of St. Petersburg prohibited the use of small (under fourteen ounces in weight) explosive or incendiary projectiles.The Hague Conferences In 1899, the First Peace Conference at The Hague resulted in the signing of the Convention with Respect to the Laws and Customs of War on Land, derived from the Instructions for the Government of Armies of the United States in the Field, issued during the Civil War (April 24, 1863) and based on a draft by Dr. Francis Lieber of Columbia. The Second Peace Conference, which met in 1907 in The Hague, revised the earlier convention, and the new version is known as Convention IV (Convention Respecting the Laws and Customs of War on Land, The Hague, October 18, 1907). The drafters of the document realized fall well that many aspects of the conduct of hostilities had not been covered fully or had been omitted from the document altogether. Hence the preamble of the convention included toward its end the significant statement:It has not, however, been found possible at present to concert Regulationscovering all the circumstances which arise in practice.On the other hand, the High Contracting Parties clearly do not in ten: that unforeseen cases should, in the absence of a written undertaking, be lcr: to the arbitrary judgment of military Commanders.Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.[footnoteRef:5] [5: The last paragraph above is the so-called Martens Clause, frequently cited as demonstrating humanitarian aspect of the law of war.]

It should be noted that both Hague conventions declared or stated principles and rules that, in essence, represented then existing customary international lal The two instruments were declaratory, for the most part, of customary rules of law that would have applied to all parties to a conflict irrespective of the applicability of a Hague convention.Annexed to the Fourth Convention of 1907 (Convention Respecting the Laws and Customs of War on Land) were Regulations detailing the conduct I hostilities. Those regulations, of key importance even today (hereafter referred :: as HR) must be distinguished from the Fourth Geneva Convention of 1949 (Relative to the Protection of Civilian Persons in Time of War, hereafter referred to is Geneva-IV) and the two Protocols Additional to the Geneva Conventions of 12 August 1949, of 1977 (hereafter referred to, respectively as PR-I and PR-II).The 1907 conference resulted also in a number of additional instruments relating to the conduct of hostilities: a declaration concerning expanding bullet- (dumdum bullets, named after a British arsenal in India in which such bullets hi; first been mass-produced), a declaration dealing with projectiles and explosiv dropped from balloons, a declaration concerning projectiles diffusing gases of various kinds, a convention adapting to maritime warfare the principles of the Gene-, i convention (wounded) as revised in 1907, and conventions dealing with the oper- ing of hostilities, the status of merchant vessels at the outbreak of hostilities, the conversion of merchant vessels into warships, the laying of automatic con mines, bombardment by naval forces in time of war, and restrictions on the right capture in maritime war and on the rights and duties of neutral states and perso-s in land warfare and in naval warfare.Attempts to Develop Laws of War After World Wars I and II After World War L a number of additional instruments were negotiated. There came into existence n 1925 the Protocol on the Use in War of Poison Gases, the 1929 Geneva conventions on the treatment of the sick and wounded as well as of prisoners of war, the London Protocol of 1936 concerning the use of submarines against merch ships.World War II was followed by extensive efforts to enact new lawmaking tr ties in order to benefit from the bitter lessons in lawlessness learned duringconflict and to fill at least some of the major gaps in the laws of war. Thus the Geneva Diplomatic Conference of 1949 succeeded in drafting four conventions: Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva-I); Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva-II); Treatment of Prisoners of War (Geneva-Ill); and Protection of Civilian Persons in Time of War (Geneva-IV).Customary laws of war are binding on all belligerents. The Hague conventions of 1899 and 1907 are binding on all belligerents to the extent that they represent customary law and are binding wholly in the event that all belligerents in a given war are signatories of the convention in question. The treaties concluded since 1907 are binding wholly only on ratifying or adhering states.One of the bitterest arguments connected with the laws of war has centered on the traditional German assertion, adopted by other states on occasion, that the laws of war may be set aside in the case of extreme necessitysuch as when only a violation of the laws would enable a country or a military force to escape from deadly danger or to achieve the purpose of the war, the defeat of the enemy.An unlimited doctrine of military necessity (Kriegsraison) cannot be supported easily today. Its acceptance without qualification would reduce all the laws of war to mere dogmas of military convenience. Each particular instance in which the doctrine is invoked must therefore be judged on its own merits. If honest conviction and corroborating factual evidence can be marshaled in support of a given application of the concept, well and good; but if it can be shown that there was no dire urgency or that the violation undertaken did not materially and immediately contribute to military success, then any tribunal judging the case on hand would be bound to rule that a war crime had been committed.[footnoteRef:6] [6: See the illuminating study by Dunbar, Military Necessity in War Crimes Trials, 29 BYIL 442 (1952), and his The Significance of Military Necessity in the Law of War, 67 Juridical Review 201 (1955), as well as the appraisals of the problem by Downey, The Law of War and Military Necessity, 47 AJIL 251 (1953), and in Lauterpachts Oppenheim, II, 231. The history of the concept has been well developed in Weiden, Necessity in International Law, 24 TGS 105 (1939).]

Subsequent developments in the effort to expand the scope of the law of war have been centered in the United Nations and in the International Committee of the Red Cross (ICRC). In the United Nations, two important documents were produced: the Secretary-Generals first Report on Respect for Human Rights in Armed Conflicts (GA Doc. A/7720, November 20, 1969) and its identically titled sequel (GA Doc. A/8052, September 18, 1970). These presented a superb analysis of certain major gaps in the existing law governing armed conflicts (guerrilla and internal warfare, wars of national liberation, certain methods of warfare, treatment of prisoners of war in unusual circumstances, and so on), together with some most promising, as well as some rather debatable or quite impractical, recommendations. Some important aspects of warfare, not all directly related to human rights, were not mentioned in the two reports (for example, conflicts at sea, economic warfare, and neutrality).

596part VI Armed Conflicts

chapter 22 The Laws of War595The International Committee of the Red Cross organized two sessions of a Conference of Government Experts (1971 and 1972) in Geneva, to draft additional

590concrete rules applicable to armed conflicts (primarily in the form of additions protocols to the 1949 Geneva conventions), followed by the Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1974-1977).On June 8, 1977, the Conference adopted by consensus two conventions Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) anc Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Conflicts (Protocol II). Both treaties amplify many of the rules developed in the 1949 Geneva Conventions anc also add some new regulations. The two treaties are referred to in this text as PR-' and PR-II. Both entered into force on December 7, 1978.5Despite the codification since 1907 of the rules governing armed conflict. :: must be admitted that realistically the laws of war ignore the inability of international law to prevent war and instead concentrate on the permissible use of forot and the prohibition of certain weapons and methods of warfare. It is obvious that the advance of technology has made obsolete a number of the older rules codifiec in 1907, and it is certain that if there should ever be a major nuclear conflict, the last vestiges of the old differentiation between combatants and noncombatants will disappear instantaneously.THE LAWS OF WAR AND INTERNATIONAL FORCESThe development of a global collective security system in the shape of the Unitec Nations and various regional defense arrangements has posed numerous new problems in the laws of war. Those laws developed in the context of armed struggles between individual states. Because collective security systems were not known at the time the customary and conventional rules governing warfare were drawn up, n: provisions governing international armed forces were included. Even the most modem conventions on the subject, the 1949 Geneva instruments and PR-I are concerned with national and not international forces.Thus far no official answer has been found to the question of the extent t which international commands are bound by the existing rules. The fact that such forces operated in South Korea, in the Near East, in the Congo, on Cyprus, anc elsewhere and may be called into activity under such organizations as NATO, raises the question of the extent to which such forces are bound by the laws of war.sTexts of the 1907 Hague Conventions (and annexes) are in 2 AJIL 90, 117, 153, 167 (1908 r. :nt text of most important treaties dealing with war (up to 1982) are in Roberts and Guelff, Documents or. the Laws of War, 2nd ed. (1989); on air war, see U.S. Air Force, International LawThe Conduct ofArmei Conflict and Air Operations (1976); on naval war, see U.S. Navy, Law of Naval Watfare in Tucker, The Lr: of War and Neutrality (1957) or U.S. Dept, of the Navy, NWIP 10-20, Law of Naval Warfare (1955. as amended July 1959); on Protocols I and II, texts in 16 1LM 1391 and 1442 (1977). On specialized treaties restricting the use of certain weapons and/or methods of warfare, see 7 ILM 809 (1968), on nuclear proliferation; 19 ILM 1523 (1980) and 20, at 567, 795, 1287, (1981), on certain weapons; 11 ILM 309 (1972), on bacteriological and toxin weapons; 16 ILM 90 (1977), on environmental modification-The problem posed above has been aggravated by the assumption implied in the formation of international armed forces, on a global or regional basis, that one side in the conflict has violated solemn treaty obligations and, as an aggressor, is fighting an unlawful war. If the laws of war are to apply to such a conflict, should they apply to the aggressor alone or both sides?The present writer is convinced that both customary and conventional laws of war apply equally and unrestrictedly to both sides in a modern war, even if the conflict involves an international command (or a peacekeeping force) and that one of the opposing parties may have been guilty of aggression.[footnoteRef:7] Similarly, the tribunal in U.S. v. List et al. (The Hostage Case) pointed out that international law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory.... Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.[footnoteRef:8] Lauterpacht asserted that a war is still a war in the eyes of International Law, even though it has been illegally commenced.[footnoteRef:9] And the Korean conflict proved quite definitely that both sides were regarded as being bound by the customary and conventional rules of war.[footnoteRef:10] [7: See also Morgenstern, Validity of the Acts of the Belligerent Occupant, 28 BYIL 291 at 321, n. 1 (1951), and see Whiteman, X, 43.] [8: ' Trial of War Criminals Before the Nuremberg Military Tribunals (1948), 1247, cited in Cunningham Civil AffairsA Suggested Legal Approach, Military L. Rev. October 1960, 115, at 125, n. 29.] [9: Lauterpachts Oppenheim, II, 299.] [10: See Whiteman, X, 58-63, for relevant documents.]

Law of Non-International Wars At the 1974-1977 Diplomatic Conference, the West German delegate stated that 80 percent of the victims of armed conflicts after World War II were the victims of non-international conflicts, and the Soviet delegate asserted that the figure should be raised to 90 percent.[footnoteRef:11] Moreover, until December 1978 when Protocol II of 1977 came into force, the only conventional (treaty-based) international law rule applicable to internal war was the common Article 3 of the four Geneva conventions of 1949 (see below), which was, in Farers felicitous phrase, a statement of affectionate generalities.[footnoteRef:12] Nevertheless, Article 3 was the first example of a worldwide rule of international law requiring a state to treat its own citizensrebels though they might bein accordance with the minimum standards laid down by the family of nations. [11: 1(,In Forsythes illuminating and heavily documented Legal Management Internal War: The 1977 Protocol on Noninternational Armed Conflicts, 72 AJIL 272, at 272 (1978).] [12: 1 Farer, The Laws of War 25 Years After Nuremberg (International Conciliation No. 538 1971), 31. See also Luard ed., The International Regulation of Civil Wars (1972); and Moore, ed., Lair and Civil War i?i the Modem World (1974).]

Article 3In the case of armed conflict not of an international character occurring inthe territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circur - stances be treated humanely, without any adverse distinction founded c a race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:(a) violence to life and person, in particular murder of all kinds, mutih- tion, cruel treatment and torture;(ib) taking of hostages;(c) outrages upon personal dignity, in particular humiliating and deg-;:- ing treatment;(id) the passing of sentences and the carrying out of executions with: previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.(2) The wounded and sick shall be collected and cared for.An impartial humanitarian body, such as the International Committee :* the Red Cross, may offer its service to the Parties to the conflict.The Parties to the conflict should further endeavour to bring into force, bi means of special agreements, all or part of the other provisions to the presem Convention.The application of the preceding provisions shall not affect the legal Stan of the Parties to the conflict.The relevance of common Article 3 was admitted unofficially in several instance- :i non-international conflict by both parties involved (France and the Algerian National Liberation Front, 1956, and the Cuban government and Fidel Castro's rt: