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War
전쟁(戰爭)
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The Theory and Conduct of War
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2 THE INSTITUTION OF WAR
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The law of war
has come to mean that body of international law relating to the conduct of war
and to the protection of the victims of war. Its aim is to limit the suffering
caused to combatants and, more particularly, to those who may be described as
the victims of war--that is, noncombatant civilians and those no longer able to
take part in hostilities. Thus, the wounded, the sick, the shipwrecked, and
prisoners of war also require protection by law. |
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The laws of war have found it difficult
to keep up with rapid changes wrought by the development of ever-newer weapons
and more technologically advanced warfare, with their attendant damage to the
natural environment. It therefore becomes important constantly to supplement
(but not to abolish) earlier treaties. This section shows how the process of
supplementation has been carried out. |
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The law of war has also been taken to
include limitations placed upon states on their use of armed force. No system of
law can prevent a state (or, indeed, an individual) from using force in
self-defense, and the limitations of this concept are also discussed in this
section. |
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In ancient times war was not subject to
any control other than that exercised by the combatants themselves, and any
limitations that they might have placed on their own actions on the battlefield
would have been due to military necessity rather than any belief that to attack
civilians or to kill prisoners of war was wrong--let alone illegal. The Viking
invaders in the 11th century, for instance, knew no concept of sparing the
civilian population from attack or pillage, and they did not generally protect
and release captured enemy combatants. And there was no reason why they should:
no treaties prohibiting brutal acts in battle
had been negotiated between states, nor had there developed a uniform practice
among states that considered themselves civilized to avoid such conduct. In
order for such norms to develop, there had to come into existence a belief
shared by a number of independent states that some limits should be placed on
the methods and means of war among themselves--especially if wars were to be
fought between Christian states. (Crusades against the infidel were not
controlled by any similar concern.) In the Middle Ages
in Europe the precepts of Christianity began to
provide vague guidelines of conduct on the battlefield. In 1625 Hugo
Grotius wrote On
the Law of War and Peace (De
Jure Belli ac Pacis), in which he explored the basic principles of the
humanitarian treatment of the victims of war. |
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If civilians were to enjoy any
protection, it would also become necessary clearly to distinguish them from the
combatants. This could come only with the development of a professional army
wearing a distinctive uniform and taking upon itself a code of chivalry.
Certain actions would then become unchivalrous and would lead to heavy sanction
from brother soldiers. Chivalry, however, did not protect the common soldier or
the ordinary civilian, for whom notions of chivalry were considered
inappropriate. Protection by rule of law for the lower orders had to await the
acceptance of principles of humanity that took a distinctive form in the 19th
century. |
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Until the 20th century there existed no
principle of international law that limited the right of states to go to war.
War was seen as an integral part of state sovereignty to be entered into for
political reasons. There were, however, attempts to distinguish wars that were
considered "just" from those which were "unjust." This was a
Christian doctrine formulated by, among others, St.
Augustine, but it was an extremely flexible one, enabling a state to
describe its war as just at its own discretion. As a corollary, the enemy state
would therefore be fighting an unjust war, and its soldiers could be treated in
any manner by the state claiming to be fighting a just
war. It was more than likely that all states involved in a single
conflict would claim to be fighting for a just cause and would show an attendant
lack of concern for the protection of those unable, through wounds or capture,
to defend themselves. |
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The development of modern weapons that
could cause unnecessary suffering to combatants, and the great strides made in
battlefield medical care, led to a growing awareness that international
cooperation was required to protect the wounded and sick. Henri
Dunant, a Swiss citizen and founder of the Red Cross, was preeminent in
leading a number of states to conclude the first Geneva
Convention in 1864 to protect the wounded and sick. But the first attempt
to codify the laws of war was drafted by Francis Lieber,
a college professor in New York City. Promulgated to Union forces by President
Abraham Lincoln during the American Civil War, the Lieber code was to have a
profound effect on subsequent codifications of the laws of war. In 1868 the
Declaration of St. Petersburg prohibited the use of explosive projectiles
weighing less than 400 grams, while in 1899 two major treaties were concluded at
The Hague, one concerning asphyxiating gases and another concerned with
expanding bullets. The second Hague conference, in 1907, proved to be a
milestone, producing 13 separate treaties. In 1925 the Geneva
Gas Protocol was signed, prohibiting the use in war of asphyxiating,
poisonous, or other gases and of bacteriological methods of warfare. This was
followed in 1929 by two further Geneva Conventions, dealing with the wounded and
sick and with prisoners of war. Following World War II yet another conference
produced the four 1949 Geneva Conventions dealing, respectively, with the
wounded and sick on land, with the wounded, sick, and shipwrecked at sea, with
prisoners of war, and with civilians. Further treaties followed, including the
1954 Hague Convention on the Protection of
Cultural Property, the 1977 United Nations Convention on Military or Any Other
Hostile Use of Environmental Modification Techniques, and the two 1977 Protocols
to the Geneva Conventions of 1949, extending the terms of the conventions to
wars of national liberation and civil wars. |
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The laws of war are to be found not only
in treaties entered into by states but also in customary international law,
which is found in the actual practice of states and in the belief (called opinio
juris: "opinion of the law") that that practice is in conformity
with international law. Much of this customary international law has found its
way into the various conventions described above. Therefore, it may properly be
argued that, although a particular state is not a party to a certain treaty, it
is nevertheless bound by the principle of customary international law codified
in that treaty. Further, a treaty may have such wide acceptance that it can be
said to reflect the practice of all states, and it may then bind all states as
reflecting customary international law. As an example of this approach, the
International Military Tribunal at Nürnberg in 1946 decided that the fourth
Hague Convention of 1907, concerning the laws and customs of war on land,
reflected customary international law; hence, its principles bound Germany even
though some states, which were at war with Germany, were not parties to it. (see
also customary
law, Nürnberg trials) |
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Some areas of the laws of war are not
covered by treaty provisions, making it necessary to turn to other sources of
international law. However, it may be that a particular point has never arisen
before. In this case the Martens Clause, which first appeared in one of the 1899
Hague Conventions (and has been repeated in virtually every major treaty since),
avoids any lacuna in the law by providing the following: |
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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 public
conscience. |
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Judicial decisions are also a source of
the international laws of war. The International Military Tribunals at Nürnberg
and Tokyo following World War II laid down many general principles that became
widely accepted, but, in fact, following that conflict a large number of other
tribunals were conducted by individual states to try those charged with war
crimes. In addition, a Japanese court, in the case of Shimoda v.
Japan (1955), dealt with the legality in international law of the
atomic bombing of Hiroshima and Nagasaki. |
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The Covenant of
the League of Nations in 1920 attempted to restrict, but not to prohibit,
recourse to war. It provided that states should seek to settle their disputes
peacefully by referring them to arbitration, judicial settlement, or to the
Council of the League. The parties to the Covenant agreed that they would in no
case resort to war until three months after the award by the arbitrators, the
judicial decision, or the report by the council. It was not until the Kellogg-Briand
Pact of 1928 that 63 states party to it renounced war as an instrument of
national policy. This treaty was relied upon by the Nürnberg tribunal in
establishing not only that there was an international crime of waging aggressive
war but that international law also imposed individual liability. |
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Two particular matters that were not
referred to by either treaty were the meaning of the word war and the limits of
any right of self-defense. The term war remained subjective, giving states
liberty to withhold the term from their military adventures if they were so
minded. (For example, in the fighting over Manchuria between Japan and China
from 1937 to 1941, the Japanese refused to call the conflict a war.) As a
concept, the term was left with little significance after the United
Nations Charter of 1945, in article 2(4), prohibited "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 the Geneva Conventions apply to armed
conflicts, whether or not they are officially called wars. In the Falkland
Islands conflict in 1982, for example, the United Nations Security
Council (in Resolution 502) condemned the Argentine invasion of the islands as a
breach of the peace, even though neither Argentina nor the United Kingdom had
declared war. Upon capture by the enemy, combatants were entitled to the
treatment prescribed by the third Geneva Convention of 1949. |
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The Security
Council of the UN is empowered by article 39 of the Charter to determine
the existence of any threat to the peace, breach of the peace, or act of
aggression. It may make recommendations or decide what measures (including the
use of armed force) shall be taken. In practice, the Security Council often is
unable to act because of the veto power possessed by its permanent members (the
United States, the United Kingdom, the Soviet Union, France, and China), and it
is unable to take action through the use of armed force because none of the
agreements between individual states and the UN envisaged by the Charter were
ever made. (see also aggressive
behaviour) |
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In 1974, General Assembly Resolution
3314 defined and gave some examples of aggression. Article 3 gave, as examples,
invasion or attack by armed forces of a state, military occupation, bombardment
against the territory of another state, blockade of ports or coasts, action of a
state in allowing its territory to be used for preparing an act of aggression
against a third state, and the sending of armed bands, groups, irregulars, or
mercenaries to carry out acts of armed force against another state. Other
General Assembly resolutions, notably Resolution 2625 of 1970 (the Declaration
on Principles of International Law Concerning Friendly Relations and
Co-operation Among States in Accordance with the Charter of the United Nations),
stress the prohibition on the use of force contained in article 2(4). |
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Lawyers lament the imprecise definition
of force as prohibited by the Charter. Three
concepts appear to be used virtually interchangeably: force (and threat of
force), aggression, and armed attack (this last to be found in article 51,
concerned with self-defense). Article 2(4) further confuses the issue by
prohibiting force "against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the Purposes
of the United Nations." This has led to arguments--as in the Corfu
Channel case between Britain and Albania in 1949 and in the attack by Israeli
aircraft against an Iraqi nuclear reactor in
1981--that although there had been a use of force in certain cases, that force
was not directed against the territorial integrity or political independence of
any state or against the purposes of the UN. In the Corfu Channel case, Britain
insisted that it had acted only to clear Albanian mines from an international
strait, and in the Iraqi case Israel argued that it had destroyed a facility
that might acquire an ability to make nuclear weapons that would then threaten
Israel. The International Court of Justice condemned the first action and the
Security Council, the second. |
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It may well be that any use of armed
force outside the territory of a state is a breach of article 2(4) of the UN
Charter, and that the term force as used here also means aggression. Any state
that uses force, therefore, will be required to show that it is doing so not out
of aggression but in self-defense. |
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Article 51 of the Charter states the
following: "Nothing in the present Charter shall impair the inherent right
of individual or collective self-defense if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security." In Nicaragua
v. United States (1986), the International Court of Justice ruled
that this passage confirmed the existence of the right of self-defense under
customary international law. In 1837 the Caroline
affair, a dispute between the United States and Britain over the crossing into
U.S. territory by British troops fighting Canadian rebels, led to a general
acceptance that any state wishing to show that it had acted in self-defense
would need to show an instant, overwhelming necessity of self-defense that left
no choice of means and no moment for deliberation. In addition, the act of
self-defense would need to be in proportion to the force used against it. (see
also Nicaragua
v. United States) |
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It should be noted that article 51
mentions a right of individual as well as collective self-defense. Following the
invasion of the Falkland Islands, the British government claimed that the
sending of its task force and the subsequent military action against Argentine
forces was in conformity with the right of individual self-defense under article
51. On the other hand, the United States argued in 1966 that its military
assistance to South Vietnam was justified as collective self-defense. The United
States also tried to argue, in the case brought by Nicaragua
before the International Court of Justice in 1986, that its military and
paramilitary activities against that country were in collective self-defense
with Costa Rica, El Salvador, and Honduras. The court decided, however, that
there "was no rule permitting the exercise of collective self-defense in
the absence of a request by the State which regards itself as the victim of an
armed attack." (At the relevant time, none of these three Central American
states considered that an armed attack had occurred against it.) In addition,
the court considered that, in order for the right of collective self-defense to
apply, the attacked state would have to request assistance from the state
claiming to act in collective self-defense with it. Because this had not
occurred, the United States could not justify its actions against Nicaragua as
collective self-defense under article 51 of the Charter. |
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It is not clear whether anticipatory
self-defense is permitted under the Charter. Read literally, article 51 requires
an armed attack actually to have occurred before a state can act in
self-defense. If, however, the "inherent right" expressed in article
51 allows customary international law to be considered, then it may be argued
that a state does indeed have a right of anticipatory self-defense. The
Nicaragua case seemed to suggest this interpretation, and it was used very
effectively by Israel in June 1967 when it destroyed much of the Egyptian air
force on the ground prior to an anticipated Egyptian attack on Israel. The
United States justified its air attack on military targets within Libyan cities
in 1986 by claiming that such action was taken to prevent terrorist attacks on
Americans in the future. Moreover, it may be argued that a state claiming to be
acting in self-defense can take into account the accumulation of hostile acts
that have been committed against it in assessing the proportionality of its
response. (see also Arab-Israeli
wars ) |
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There is here a very fine line dividing
anticipatory self-defense, which may be legally permissible, from reprisal, the
prime object of which is to punish an alleged wrongdoing and which is not
legally permissible. The destruction by Israel of 13 civilian aircraft in Beirut,
Lebanon, in 1968 was condemned by the UN Security Council as a reprisal, since
the raid was in retaliation for the attack on an Israeli aircraft at Athens in
which one Israeli citizen was killed. (Because the Security Council is not a
court of law, it does not automatically follow that its condemnation of military
action signals its illegality.) |
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A further problem with the definition of
self-defense in article 51 is the extent to which a state may intervene by
military force into the territory of another state in order to rescue its
nationals who are threatened there. In 1976 members of the Israeli Defense Force
entered, without permission, the territory of Uganda
to rescue Israeli nationals who had been hijacked while traveling on a civilian
airliner by a terrorist organization and who were being kept hostage at Entebbe
airport near Kampala. There was some evidence that the Ugandan authorities had
lent some assistance to the hijackers. The Entebbe raid
was not condemned by the Security Council, and many writers on international law
considered the raid justifiable. Of course, there were a number of distinctive
features that made this a clear-cut legal case: The Israelis used minimal
military force against a state that appeared to be assisting terrorists, and
they left as soon as their citizens were under their control. In the Grenada
incident in 1983, the United States sent armed forces to recover U.S. citizens
from the island when the government had ceased to exist after its principal
members were killed. U.S. forces remained on the island until elections were
held, and then they were withdrawn. The Grenada invasion may be less clearly
justifiable than the Entebbe raid, but, because the United States (along with
the armed forces of other states in the region) took action at the request of
Grenada's governor-general, the invasion may have been justifiable under
international law (although not all international lawyers would agree). (see
also hijacking) |
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Chapter VIII of the UN Charter permits
the existence of regional arrangements or agencies for dealing with such matters
of international peace and security as are appropriate for regional action. It
goes on to provide, in article 53, that no enforcement action shall be taken
under regional arrangements or by regional agencies without the authorization of
the Security Council. Article 54 states that the Security Council shall be kept
informed of all such activities. On a number of occasions, states have justified
the use of force (or the threat of force) under this part of the Charter,
despite the lack of prior authorization from the Security Council, by arguing
that the measures they took did not amount to enforcement action and therefore
did not require the authorization of the Security Council. Thus, the United
States, after stopping ships on the high seas in 1962 to search them for
missiles or missile parts intended for Cuba, argued that this was not
enforcement action since the regional arrangement (in this case, the
Organization of American States) had merely made a recommendation to member
states and had not rendered a decision that had to be enforced. A similar
argument was used following the Grenada incident: this action, the United States
declared, was not directed against a government but was merely carried out to
restore law and order to the island under the aegis of the Organization of
Eastern Caribbean States. (see also regional
integration, Cuban missile crisis ) |
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Armed conflict need not be, and often is
not, of the traditional type--that is, a conflict between regular armed forces
in the territory of one or more states. Nicaragua
v. United States showed that an
armed attack (which would give the attacked state the right to act in
self-defense) must be understood as "including not merely action by regular
armed forces across an international border, but also the sending by or on
behalf of a state of armed bands, groups, irregulars or mercenaries, which carry
out acts of armed force against another state of such gravity as to amount to an
actual armed attack conducted by regular forces, or its substantial involvement
therein." Therefore, if a state sent an armed band into another state to
depose its rulers or to attack civilians of that state, then the sending state
would have committed an armed attack, giving the attacked state the right to act
in self-defense. As discussed above, the response must be proportionate to the
aggression; in assessing this, the accumulation of events may be taken into
account. |
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The term civil war, although perhaps
dated, is used here to mean a noninternational armed conflict. It therefore
covers any internal conflict, whatever the motive for the fighting. |
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It is often difficult to determine
whether a conflict is truly internal or international, since other states may be
involved to some extent. If it is indeed an international armed conflict, then
an attacked state may seek the military assistance of any other state, which
will then be acting in collective self-defense with it. (An example of this was
the Vietnam War, although, it should be said, many states regarded it as a civil
war.) Also, if the conflict has become international, then the 1949 Geneva
Conventions and the whole of the body of the laws of war will apply to the
combatants as well as to civilians caught up in the conflict. Should the war be
a civil one (which can properly be described as an armed conflict),
international law would point to the nonintervention of other states, and only
article 3 of each of the 1949 Geneva Conventions would apply (protecting only
those not taking an active part in the hostilities). Further protection is given
(mainly to those who do not take part in the conflict) by the second Protocol
of 1977, which applies to civil wars in which dissident armed forces,
under responsible command, exercise such control over a part of the territory of
a contracting state as to enable them to carry out sustained and concerted
military operations and to implement the Protocol. For these reasons, the
Protocol would not apply to the conflicts in Northern Ireland or Spain, in which
neither the Irish Republican Army nor the Basque separatists controlled any
territory, while it would apply in the conflict in El Salvador, in which rebels
controlled sizable areas of the countryside. |
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The first Protocol of 1977 provides that
peoples fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of self-determination are to be
treated as if they were engaged in an international armed conflict and not a
civil war. There is considerable difficulty over the meaning of this phrase, and
it may be difficult to apply in practice. |
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Although the Hague Conventions,
concerning the conduct of hostilities, apply to the states that are party to
them in the event of war, the various Geneva Conventions of 1949 (and the 1977
Protocols to them) come into operation where there is an armed conflict between
two or more contracting parties even if a state of war is not recognized by one
(or both) of them. They also apply to the occupation of another state's
territory even if the occupation meets with no armed resistance. Since much of
the Hague Conventions reflect customary international law, it can be assumed
that these laws of war (or the jus in
bello) also apply whether or not any declarations of war exist. In
considering the legal conduct of a conflict, the laws of war take no account of
its causes. This means that the combatants of the aggressor nation are owed the
same rights as those of the attacked state. |
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The controls placed on the actual
methods and means of war are to a large extent based on the Hague Conventions,
but there are also a number of important provisions in the first Protocol of
1977, the 1954 Hague Convention on cultural property, and the 1981 Conventional
Weapons Convention. |
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Those who may lawfully take part in
hostilities are those who would be entitled to prisoner-of-war
status if captured. Any other person taking part in a conflict may be treated as
an unprivileged belligerent, or a franc-tireur, and he may be punished if
captured. Article 4 of the third Geneva Convention of 1949 and article 43 of the
first Protocol of 1977 provide that a lawful combatant is generally a member of
the armed forces of a state. The term also includes members of the merchant
marine and inhabitants of unoccupied territory who, on the approach of the
enemy, spontaneously take up arms to resist the invading forces until the
territory has been occupied. |
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A spy is in a unique position, since he
is often a member of the armed forces of a state; but if he acts in disguise in
the zone of operations of an enemy in order to obtain information to pass on to
his own forces, he may be punished provided he has a trial. (see also espionage) |
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A mercenary
is not protected at all; he has the right to be neither a combatant nor a
prisoner of war. A mercenary is defined in the first Protocol of 1977 (which
neither the United Kingdom nor the United States has ratified) as a person who
is specially recruited to take part in a conflict, who is motivated essentially
by private gain, and who is paid substantially more than the ordinary armed
forces of the state to which he has been recruited. He must not be a national of
the recruiting state or a member of the armed forces of a party to the conflict. |
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Guerrilla
fighters are not solely a modern phenomenon, although during and after World War
II they became a common feature of armed conflicts, especially those occurring
in the developing world. The third Geneva Convention of 1949 required what is
called an organized resistance movement to possess four characteristics before
its members could be treated as prisoners of war upon capture. These were: (1)
being commanded by a person responsible for his subordinates, (2) having a fixed
and distinctive sign recognizable at a distance, (3) carrying arms openly, and
(4) conducting operations in accordance with the laws and customs of war. In
time, it became apparent that two of these four conditions were difficult for
guerrilla fighters to meet. Were guerrillas to wear a fixed and distinctive sign
recognizable at a distance or carry arms openly, they could hardly operate with
any safety in occupied territory. The first Protocol of 1977 made a number of
important changes that bind those states that are parties to it. For example,
one of the major problems with recognizing guerrilla fighters as lawful
combatants is that they may not, in fact, distinguish themselves from the
civilian population--in which case, all civilians are placed at risk. Therefore,
article 43 of the Protocol requires all combatants to distinguish themselves
from the civilian population while they are engaged in an attack or in a
military operation preparatory to an attack. However, even if a combatant does
not do this, he will still be entitled to treatment as a lawful combatant if he
carries his arms openly during each military engagement and during such time as
he is visible to the adversary while engaged in a military deployment preceding
the launching of an attack in which he is to participate. |
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A member of the armed forces of a party
to a conflict will lose his status as a prisoner of war upon capture if he
commits an act of hostility while wearing civilian clothes. In the case of Osman
Bin Mohammed v. Public Prosecutor
(1968), the Privy Council in London held that members of the Indonesian armed
forces who had landed in Singapore during an armed conflict between Indonesia
and Malaysia were not entitled to be treated as prisoners of war after having
placed a bomb in a civilian building that caused the deaths of civilians. This
loss of prisoner status will also apply, among the states that are parties to
the first Protocol of 1977, if their combatants do not at least carry their arms
openly, as described above. |
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Article 22 of the Regulations Annexed to
the Hague Convention of 1907 provides that "the right of belligerents to
adopt means of injuring the enemy is not unlimited." This particular
principle underpins much of the law in this area, and there are many examples of
it. Article 23 of the same treaty, for instance, prohibits certain activities
such as the employment of poison or poisoned weapons, killing or injuring enemy
combatants treacherously, attacking those who have surrendered, or declaring
that no quarter will be given. It also prohibits the employment of arms,
projectiles, or material calculated to cause unnecessary suffering. One reason
for this approach, as stated in the Declaration of St. Petersburg of 1868, is
that "the only legitimate object which states should endeavour to
accomplish during war is to weaken the military forces of the enemy." (see
also military
technology) |
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This principle explains, to some extent,
the prohibition on the use of certain weapons. Hence, the use of chemical and
bacteriological weapons was banned by the 1925 Geneva Protocol. By the
Bacteriological Weapons Convention of 1972, states party to it agreed never in
any circumstances to develop, produce, stockpile, retain, or acquire
bacteriological or biological weapons or toxins. If a ban on chemical
weapons came about, it would likely take the same form. |
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The use of nuclear
weapons against enemy combatants is not subject to any express
prohibitions. A number of international lawyers, however, take the view that
their use is implicitly prohibited by the principles stated above, because
radiation effects can be considered not only a form of poison but also a weapon
calculated to cause unnecessary suffering. The General Assembly of the United
Nations condemned their use in Resolution 1653 of 1961, but the value of this
resolution is considerably weakened by the fact that, of the nuclear-weapon
states, only the Soviet Union voted for it. In Shimoda v. Japan
(1983), a Japanese court held that the use of atomic weapons against
Nagasaki and Hiroshima was contrary to international law, not merely because of
the type of weapon used but because bombardment, by any means, of the civilian
population of those two cities was contrary to the Hague Conventions of 1907.
(see also atomic bomb) |
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Like nuclear weapons, incendiary weapons
are not specifically banned unless used against the civilian population. It
might be argued, however, that their use against enemy combatants (as opposed to
military equipment) would infringe the 1925 Geneva Gas Protocol, since they
could come within the prescription of "all analogous liquids, materials, or
devices." (see also incendiary
bomb, incendiary bullet) |
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The Vietnam War illustrated the dangers
that modern weapons can cause to the environment. The use in that conflict of
chemical herbicides and other methods of de-forestation, along with attempts to
alter weather patterns, called the attention of the world to such activities.
The result was the 1977 United Nations convention on environmental modification,
which requires states not to engage in military or any other hostile use of
environmental modification techniques having widespread, long-lasting, or severe
effects. The first Protocol of 1977 also prohibits the employment of methods or
means of warfare that are intended, or may be expected, to cause widespread,
long-term, and severe damage to the natural environment. States are specifically
directed by this protocol to consider whether any new weapons that they might
develop would infringe any rules of international law. |
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On the seas, naval forces may attack
enemy warships. The sinking of the Argentine warship General Belgrano, therefore, was not
contrary to international law despite its being attacked outside the Total
Exclusion Zone that the British government had declared around the Falkland
Islands. (see also naval
warfare) |
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According to customary international
law, only members of the armed forces of a party to a conflict can take part in
hostilities, and the law has always attempted to draw a clear distinction
between the lawful combatant, who may be attacked, and the civilian, who may
not. |
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One of the Fundamental Rules of
International Humanitarian Law Applicable in Armed Conflicts, which were
prepared by the International Committee of the Red Cross in 1978, requires
parties to a conflict to distinguish at all times "between the civilian
population and combatants in order to spare civilian population and property.
Neither the civilian population as such nor civilian persons shall be the object
of attack. Attacks shall be directed solely against military objectives."
Restrictions on the use of chemical or nuclear weapons against the civilian
population have been discussed above. In addition, the 1981 Conventional Weapons
Convention specifically prohibits the use of mines, booby traps, and other
similar devices and incendiary weapons directed against the civilian population
or used indiscriminately, and the first Protocol of 1977 imposes very detailed
target restraints in order to protect civilians. For example, aerial bombardment
engaged in for the sole purpose of terrorizing the civilian population is
prohibited, and the use of aircraft to carry out such a role would therefore be
illegal. Merchant ships may in limited circumstances be attacked, but they may
not be sunk by a submarine without its first having placed passengers, crew, and
ship's papers in a place of safety. |
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The fifth Hague Convention of 1907
declares that the territory of neutral powers is inviolable and that a neutral
state has a duty to prevent a belligerent state from carrying the conflict to
its territory. In particular, troops belonging to the army of a belligerent
state who enter the territory of a neutral must be interned. Also, a neutral
must act evenhandedly to all belligerent states; for this reason, the United
Kingdom declared its neutrality in the war between Iran and Iraq
(1980-88), refusing to sell either side military equipment that would have
significantly enhanced its capability to prolong the conflict. |
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Neutral shipping may be stopped on the
high seas (as occurred in the Iran-Iraq War when a British merchant vessel was
stopped by an Iranian warship) to check on the carriage of contraband. In naval
warfare, the 13th Hague Convention of 1907 bans belligerents from conducting
military operations in the territorial waters of a neutral state, and neutrals
themselves have duties imposed on them not to assist the warships of belligerent
states. |
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Military activities of any kind cannot
be carried out on the Moon (the Moon Treaty of
1979), Antarctica (the Antarctic
Treaty of 1959), or on the territory (including the airspace) or
territorial waters of neutral states. In addition, nuclear weapons or other
weapons of mass destruction cannot be orbited around the Earth (the Outer
Space Treaty of 1967) or placed on the seabed (the Seabed Treaty of
1971). |
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The third Geneva Convention of 1949
provides the basic framework of protection accorded to a prisoner of war. He is
protected from the moment he falls into the power of an enemy until his final
release and repatriation. No form of coercion may be inflicted on him to secure
information of any kind; he need only give his name, rank, date of birth, and
serial number. When an Argentine army officer captured by British forces during
the Falklands conflict was alleged to have been responsible for the
disappearance of French and Swedish nationals in Argentina prior to the
conflict, he could not be compelled to disclose information on the subject and
was released. |
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A prisoner of war is entitled to decent
and humane treatment, to be evacuated from the combat zone, and to be granted
rights and duties as similar as possible to those of the armed forces of the
detaining power. No reprisals may be taken against prisoners of war; they may
not be treated in a way contrary to the Convention even though an enemy state
treats its prisoners of war in such a way. Officers may not be compelled to
work, and other ranks may not be compelled to do dangerous or unhealthy work.
Article 52 of the third Convention of 1949 goes on to provide that the removal
of mines or similar devices shall be considered dangerous labour. |
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In order to ensure that prisoners of war
are accorded the treatment laid down in the Conventions, states must ensure that
a protecting power is appointed to act on their behalf. A protecting power is a
neutral state acceptable to the state that holds prisoners of war. There were no
protecting powers appointed during the Vietnam War or the Iran-Iraq War, but in
the Falklands conflict Switzerland acted for the United Kingdom and Brazil for
Argentina. A state may allow the International
Committee of the Red Cross (ICRC) to act as a substitute protecting
power. The ICRC has, in addition, a right to visit prisoner-of-war camps. |
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Protecting powers (or the ICRC) must be
kept informed if a prisoner of war is to be tried (rather than being given
disciplinary punishment) for an offense, in order, for instance, that the
protecting power might find the accused a lawyer. If the death penalty is
imposed, it cannot be carried out for at least six months after the judgment and
after sentence has been communicated to the protecting power. A prisoner of war
may be tried for an offense committed prior to capture (such as a war crime),
but he is entitled to retain his status as a prisoner of war even if convicted. |
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The use of weapons against prisoners of
war attempting to escape constitutes an extreme measure and is to be preceded by
warnings. The detaining power must hold an inquiry into the death of a prisoner
of war and notify the protecting power. Such an incident occurred in the
Falklands conflict, when a British soldier shot and killed an Argentine prisoner
of war whom he believed was attempting to escape. The resultant inquiry
exonerated the soldier, and a report was passed to the ICRC. |
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At the conclusion of hostilities
prisoners of war are to be repatriated. Problems occurred at the conclusion of
the Korean War when a number of North Koreans did not wish to return. A
repatriation commission was established in 1953, and remaining prisoners of war
were transferred to it. It has become more common to repatriate able-bodied
prisoners of war before the end of hostilities. To a limited extent this
occurred in the Iran-Iraq War, but it was a major feature of the Falklands
conflict. |
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World War II illustrated that civilians
in occupied territory were largely unprotected by the laws of war. In
consequence, the fourth Geneva Convention of 1949 provided detailed rules for
their protection. A protected person is anyone who, at a given moment and in any
manner whatsoever, finds himself, in case of a conflict or occupation, in the
hands of a party to the conflict or occupying power of whom he is not a
national. The inhabitants of occupied territory are, therefore, protected
persons under the Convention; they are entitled to humane treatment and to
respect for their person, honour, family rights, religion, manners, and customs.
Article 34 of the fourth Convention specifically prohibits the taking of
hostages and reprisals against them or their property. Article 49 prohibits the
transfer of protected persons out of occupied territory unless, in a given area,
the security of the population or imperative military reasons so demand. After
the war of June 1967, Israel occupied territory in the West Bank, the Gaza
Strip, and the Golan Heights, but it claimed that the fourth Convention did not
apply to them. The United Nations took a different view in resolutions in 1988
when it specifically declared that the Convention was applicable to all the
Palestinian and other Arab territories occupied by Israel since 1967. The
resolutions went on to condemn a number of Israeli practices in these
territories, such as the killing, wounding, and deportation of Palestinian
civilians (who are protected persons under the fourth Convention), during
uprisings against Israeli rule. (see also occupation zone) |
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The occupying state may make such laws
for occupied territory as enable it to carry out its obligations under the
Convention, to maintain the orderly government of the territory, and to ensure
its safety. At the same time, it must respect other laws in force before the
occupation. Requisitions for the needs of the occupying army may be taken, but
only on payment, and foodstuffs and medical supplies may be requisitioned only
if the needs of the civilian population have been taken into account. If the
supply of such items is inadequate for the needs of the civilian population,
then the occupying state will be under an obligation to bring them into the
territory. The Nürnberg trial concluded that "the German armies were
to be fed out of Soviet territory, even if many millions of people were to
starve to death." It is this type of conduct that the fourth Convention
attempts to prevent. (see also military
government) |
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Protected persons who are not members of
the armed forces and who use force against occupying forces are not entitled to
special treatment, since they are not entitled to prisoner-of-war status upon
capture. The occupying state may place them on trial for breach of either the
ordinary laws of the territory or the laws it has imposed. However, if it is to
sentence such a person to death, it must take into account that the protected
person does not owe the occupier any duty of allegiance. Also, a state that
occupies territory does not thereby obtain good title to it. Various UN
resolutions confirm this; a General Assembly resolution in November 1988
reaffirmed that the "occupation by Israel of the Palestinian territories
since 1967, including Jerusalem, in no way changes the legal status of those
territories." |
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Hostilities may be suspended pending negotiation
between the parties. Negotiation may, or may not, be preceded by the display of
a white flag, which merely means that one side wishes to enter into
communication with the other. The parties may then enter into an armistice,
and, when all matters are agreed, a peace treaty may be concluded. Of course, it
is possible to end hostilities without any treaty; neither the Falklands
conflict nor the Iran-Iraq War ended in this way, although an agreement
sponsored by the UN provided for the withdrawal of Soviet troops from
Afghanistan in 1989. |
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It has been shown that the acquisition
of territory as a result of a war of aggression does not give title to that
territory under international law. In the same way, a treaty by which a victor
(who has started a war of aggression) requires a vanquished state to cede to it
territory would not be considered a valid transfer of sovereignty over the
territory concerned. |
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The term war crime has no definite
meaning. It was commonly thought of as a violation of the laws of war committed
by a combatant or even a civilian. In 1945 the charter of the Nürnberg
tribunal gave that court jurisdiction to try crimes against the peace (which
consisted of waging a war of aggression), war crimes (that is, violations of the
laws and customs of war), and crimes against humanity (such as the murder and
ill-treatment of civilians). Twenty-two persons were charged at Nürnberg
and 25 at the Tokyo tribunal, but many more were tried by tribunals established
by Allied governments in territory they occupied at the conclusion of World War
II. The tribunals had a profound effect on the development of international law
as it is concerned with the responsibility of both states and individuals for
conduct leading to and during war. In particular, the tribunal confirmed that
individuals could be held liable for a breach of international law: "Crimes
against international law are committed by men, not by abstract entities, and
only by punishing individuals who commit such crimes can the provisions of
international law be enforced." (see also Nürnberg trials) |
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One problem associated with the tribunal
was that of its jurisdiction. Did international law (upon which the framers of
the charter relied) permit states to try the nationals of another state for
committing crimes under international law in the territory of yet other states?
The charter decided that it did, since it was concerned with offenses having no
particular geographic location. A wider view of international law was taken in
the case of Attorney General of the
Government of Israel v. Eichmann,
which was decided by the District Court of Jerusalem in 1961. Adolf
Eichmann, head of the Jewish office of the Gestapo during World War II,
was convicted of war crimes, crimes against the Jewish people, and crimes
against humanity. Although the crimes were not committed on the territory of
Israel (which at the time did not exist as a state), the court held that such
acts could be tried by any state that had custody of the defendant. (Eichmann
had, in fact, been abducted from Argentina by Israeli agents.) |
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The Nürnberg tribunal also had to
consider arguments put forward by the defense. Many defendants pleaded that
their actions were carried out on the orders of superiors. The framers of the
charter realized that this was likely to be a major issue, and they added to the
charter an article which stated that superior orders would not relieve a
defendant of liability but could be considered in mitigation. For this reason no
convictions were brought against those responsible for bombing Allied cities or
for the waging of unrestricted submarine warfare. |
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The Nürnberg principles were
affirmed by the United Nations in 1946. In 1948 the United Nations prepared a
Convention on the Prevention and Punishment of the Crime of Genocide, and in
1968 it offered for signature a convention that removed the statute of
limitations from war crimes and crimes against humanity. |
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The four Geneva Conventions of 1949 take
a different approach to trying those responsible for breaches of the laws of war
during an armed conflict. Each Convention lists a number of "grave
breaches," which include willful killing, torture or inhuman treatment, and
the causing of great suffering or serious injury to body or health. States party
to the Conventions undertook to enact legislation to try those suspected of
grave breaches and to search for such persons. The United Kingdom, for instance,
enacted the Geneva Conventions Act of 1957, making it a criminal offense for any
person to commit a grave breach of the Conventions anywhere in the world. The
first Protocol of 1977 adds to the list of grave
breaches, such as making the civilian population or individual civilians the
object of attack, launching an indiscriminate attack affecting the civilian
population, the perfidious use of the distinctive emblem of the Red Cross, and
the transfer of protected persons from occupied territory (as discussed above in
relation to Israel). |
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The Protocol also provides for the
establishment of fact-finding commissions to inquire into any allegation of a
grave breach. Allegations of war criminality were made in regard to actions
committed during the Korean War, the Vietnam War (especially the killing of
prisoners of war), and the Iran-Iraq War, but no conviction for a grave breach
of the Geneva Conventions has been recorded. Individual members of the armed
forces may instead be tried by court-martial for a breach of their domestic
penal or military law. For example, in 1947 a British army medical officer was
convicted by court-martial for the ill-treatment of German nationals held when
the United Kingdom occupied parts of Germany, and in 1971 a U.S. army lieutenant
was convicted of murder for his part in the massacre of villagers in South
Vietnam. (P.J.R.) |
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