The Law of War
The law of war consists of three largely separate bodies of law corresponding to the three environments in which war is conducted—land, air and sea. The law with respect to war on land is relatively modern, highly detailed and almost universally accepted. The law of war in the air and the law of naval warfare are fragmentary, pitched on a high level of abstraction and rendered obsolescent by changes in technology and in the power of States. While the International Law Association has from time to time concerned itself with these subjects, the sole activity of the Association in this field since the Second World War has been in the field of International Medical Law.
Law of Land Warfare
The codified law of war on land, which is of contemporary relevance, consists of seven principal treaties. The most important of these are the Geneva Conventions of 1949 for the Protection of War Victims,1 consisting of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, the Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members ofArmed Forces at Sea, the Convention relative to the Treatment of Prisoners of War and the Convention relative to the Protection of Civilian Persons in Time of War. To these four Conventions 133 States are parties, making them probably the most widely accepted ofgeneral multilateral treaties, other than the constitutive instruments of international organizations. While the Conventions are binding only on the parties and have not yet been held to have passed into customary international law, the number of parties to the treaties assures that in almost any conflict the Conventions will be applicable of their own force.
The Regulations annexed to Convention No. IV of The Hague of 1907 respecting the Law and Customs of War on Land2 were held by the International Military Tribunal at Nuremberg3 to be declaratory of customary international law, and they are thus binding on all States qua customary international law, whether or not the States concerned are parties to Convention No. IV of The Hague. The Geneva Protocol of 1925 for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare has been ratified by or acceded to by a large majority of the members of the international community. The General Assembly at its Twenty-Fifth Session adopted a resolution considering that “the principles of the Geneva Protocol of 1925 and the Geneva Conventions of 1949 should be strictly observed by all States and that States violating these international instruments should be condemned and held responsible to the world community”. This provision may lend itself to the construction that the General Assembly was asserting that the Geneva Protocol of1925 is binding on all States, including those States that are not parties, but the matter is not free from doubt. The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, which casts its protection over works of art, archaeological sites, museums, libraries, historic buildings and other forms of cultural property, is binding only on the parties to the treaty.
The humanitarian law with respect to the protection of war victims, notably the Geneva Conventions of 1949, is a highly refined and sophisticated body of rules. It is the product of more than a century of growth, dating from the first Geneva Red Cross Convention of 1864. The two Geneva Conventions of 1949 on the wounded and sick on land and at sea can trace their ancestry back to that first treaty through the 1906 and 1929 Conventions. The few provisions of the Hague Conventions of 1899 and 1907 on prisoners of war were taken up, modernized and expanded in the Geneva Prisoners of War Convention of 1929, the first separate multilateral treaty on that subject. The Convention of 1929 was in turn brought up to date by the Convention of 1949. And the protection of civilians, which had hitherto rested upon certain provisions of the Hague Regulations of 1907, notably those relating to the belligerent occupation of enemy territory, and upon, by analogy, some of the rules concerning the internment of prisoners of war, was for the first time assured on a comprehensive basis by the Geneva Convention of 1949 relative to the protection of Civilian Persons in Time of War. The humanitarian law of war is thus the product of successive stages of refinement and development, drawing upon the experience gained from the application of the law in previous conflicts.
Behind the roughly 400 articles of the four Geneva Conventions of 1949 lie hundreds of cases, reported and unreported, of the trial of individuals for violations of the law of war. The judgments of the International Military Tribunal for the Trial of major German War Criminals and of the International Military Tribunal for the Far East, of the international military tribunals convened under Control Council Law No. 10 in Germany and of countless national tribunals, both military and civil, have provided a rich source of law not only on the criminal responsibility of individuals but on the very substance of the law itself. The events of the Second World War—a conflict fought with a barbarity which gave the lie to our living in a civilized world—had a powerful impact upon the work of the Geneva Conference of 1949 for the Protection of War Victims.
These circumstances, coupled with the widespread acceptance of the Geneva Conventions of 1949, have produced a body of law which in its depth and sophistication resembles a developed system of municipal law. To the lawyer’s eye, it appears to be a body oflaw which is real, hard and effective. And yet the facts are otherwise.
It should actually not be surprising that the law ofwar, applicable at a time when nations are at each others’ throats, should be even more fragile in many respects than the law of nations in time of peace. And indeed, one of the reasons why the humanitarian law of war has not been more effective is its very complexity and refinement, which make it difficult to apply under circumstances of stress, hatred, violence and danger. Since the law of war imposes obligations upon individuals as well as upon States, it must be applied by all sorts and conditions of men, and the degree of compliance with the law can be no better than their understanding of the highly complex body of law that they are called upon to respect.
It is not difficult to identify the major ways in which the humanitarian law of war has failed to perform its task effectively. Amongst these may be listed the following:
1. In a number of conflicts, it has not been clear whether and to what extent the Geneva Conventions of 1949 should be applied. In the conflict in Vietnam, for example, three of the principal participants—the Republic of Vietnam, the Democratic Republic of Vietnam and the United States of America—were parties to the Geneva Conventions of 1949, albeit with reservations which did not enhance the protection of war victims. The Provisional Revolutionary Government of the Republic of South Vietnam (the “Viet Cong”) was not a party to the Conventions. It was by no means clear whether the conflict, fought over what had originally been intended to be a provisional demarcation line, was an international or an internal one; whether relations between the forces of the Government of the Republic of Vietnam and of the Provisional Revolutionary Government of the Republic of South Vietnam were governed by common Article 3 of the Geneva Conventions of 1949 relating to non-international armed conflicts or by the entirety of the Conventions; and whether the participation of the United States in the conflict made the conflict an international one for the purposes of the Geneva Conventions of 1949. In the event, the three parties to the Conventions acknowledged their applicability in the conflict, and members of the regular forces of the Provisional
Revolutionary Government of the Republic of South Vietnam were treated as prisoners of war, even though they did not strictly come within the terms of the Geneva Conventions of 1949. However, the parties to the conflict were slow to give effect to the Conventions; prisoners in the hands of the Government of the Democratic Republic of Vietnam were charged with being “war criminals” not entitled to the protection of the Prisoners of War Convention, and it was never clear, as a matter ofstrict law, whether the conflict or the relations ofparticular pairs of adversaries were governed by the law pertaining to international or to internal conflicts.
In the hostilities between the Arab States and Israel, which have been carried on since 1948, the Geneva Conventions of 1949 have been operative, but Israel has refused to acknowledge the applicability of the Geneva Civilians Convention of 1949 to areas which that country has occupied as the result of the brief outbreak of active hostilities in 1967. The position taken by that country has been defended on the ground that the provisions of the Convention dealing with belligerent occupation apply only to areas within the sovereignty of the enemy and that such areas as the West Bank of the Jordan never became part of the sovereign territory of the States at war with Israel. There have been widespread accusations that Israel has violated the Civilians Convention in the course of its occupation.
The Geneva Conventions of 1949 were drafted without consideration of the position of military forces that might be constituted under the aegis of the United Nations. While the troops in such bodies as the United Nations Emergency Force in the Middle East and the United Nations Force in the Congo were called upon to comply with the Geneva Conventions, the United Nations itself was not a party to the instruments and lacked the means to carry out the obligations, such as the maintenance of discipline over forces, which rest upon parties to the Conventions.
The British Government has not acknowledged the applicability to the conflict in Northern Ireland of Article 3 common to the four Conventions and governing non-international armed conflicts within the territory of a party.
These instances of slowness or failure to acknowledge the applicability of the Geneva Conventions of 1949 and of problems about their operation arise in part from the imprecision of the Conventions and their failure to anticipate new forms of conflict and in part from the simple unwillingness of governments to admit that the provisions of the Conventions by which they are bound have become operative in a particular conflict.
2. The Geneva Conventions of 1949 are to be “applied with the co-operation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict”. A Protecting Power, which looks after the personnel of one belligerent (whether wounded and sick, prisoners of war, or civilians) in the hands of the other, is chosen by common agreement of the two adversaries. There may be two such Protecting Powers, one for each belligerent, or one neutral State may be selected to serve as a Protecting Power for both belligerents. But the hard fact is that there has been no true Protecting Power in the sense of the treaties on the law of war designated since the drawing up of the Geneva Conventions of 1949 or, for that matter, since the Second World War. The principal instrument to encourage and supervise compliance with the Conventions has thus been wholly ineffective. The reasons are many: As the Protecting Power must be the subject of agreement, failure to agree means that there is no Protecting Power. If one belligerent does not recognize the existence of the opposing belligerent as a State, the first will be hesitant to enter into any agreement with its adversary which may suggest recognition. States may differ in their perception of whether a particular third State is truly neutral. The designation of a Protecting Power may be construed as the recognition of a state of war which either or both of the opposing States may be unwilling to acknowledge. States which might be expected to perform the duties of a Protecting Power may be unwilling to expose themselves to the expense and the possible adverse political consequences of assuming what seems to be a thankless task.
The International Committee of the Red Cross, the special position of which is recognized under the Geneva Conventions, has taken on many of the humanitarian functions of the Protecting Power and has provided a neutral presence in a number of conflicts. It was not, however, permitted to carry on its activities on behalf of all belligerents during the two sanguinary conflicts in Korea and Vietnam.
3. The treaties on the law of war fail, in the view of many, to deal adequately with weapons which cause unnecessary suffering when employed in ground combat. The Hague Regulations provide that “The right of belligerents to adopt means of injuring the enemy is not unlimited” and that it is forbidden “to employ poison or poisoned weapons” and “to employ arms, projectiles, or material calculated to cause unnecessary suffering”. The Declaration of St. Petersburg of November 20/December 11, 1868 incorporated a renunciation of the employment “of any projectile of less weight than four hundred grammes, which is explosive, or is charged with fulminating or inflammable substances”. Various forms of modern projectiles (such as flechettes) and incendiary weapons (such as napalm and white phosphorous) which cause wounds that are deep and are difficult to heal have been asserted to fall foul of these prohibitions, but it does not appear that these complaints have caused belligerents to refrain from their use.
The employment of nuclear weapons presents the same legal problem, a thousand-fold or a million-fold larger in dimensions. That subject belongs more properly, however, to the law of aerial warfare.
The one bright spot in the outlawing of certain types of weapons is the progress made in securing acceptance of the Geneva Protocol of 1925 for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The operative clauses of the Protocol are terse:
Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilised world;...
[T]he High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.
Although the language of the Protocol is sweeping and the majority of the Member States of the General Assembly have declared that the Protocol prohibits the use of tear gases and chemical herbicides, this view has not been universally accepted. The United States Government, while renouncing completely the use of bacteriological weapons, understands the Protocol to permit the use of what it refers to as “riot control agents” and chemical herbicides. Differences of view on this point between the Congress and the President have kept the United States from becoming a party to the instrument. A number of parties have attached reservations to their acceptance of the Protocol reserving the right to use the agents prohibited by the Protocol in retaliation for a prior use by another party. Tear gas and chemical herbicides were extensively employed by the United States in the conflict in Vietnam and by Egypt in the Yemen, to mention only two important instances.
4. Civilians have increasingly been drawn into the maelstrom of war. Wars fought for ideological purposes, for self-determination, for the preservation of national identity, for the maintenance of independence in the face of aggression, for the throwing off of unlawful occupation involve civilians, both to fight and to support and assist those who fight. This makes it increasingly difficult to maintain the clear distinction between members of the armed forces and innocent civilians on which the legal protection of the latter is premised. If the civilian population is suspected of harbouring those who fight but disguise themselves as civilians, then the armed forces easily slip into treating civilians as adversaries. A massacre like that at My Lai reflects the response of the military carried to an illogical extreme.
Small States and peoples fighting for self-determination may not be able to afford the luxury of regularly constituted, organized and uniformed armed forces and find guerrilla tactics an effective mode of warfare. The draftsmen of the Geneva Conventions of 1949 thought that by affording treatment as prisoners of war to members of “organized resistance movements belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied”, they had gone far toward solving this problem. But the four requirements ofbeing commanded by a responsible person, of “having a fixed distinctive sign recognizable at a distance”, of “carrying arms openly”, and of compliance with the law of war cannot be satisfied by most irregulars. And so there has been renewed pressure to recognize as prisoners of war those who fight in “wars of national liberation” (whether against an unlawful occupant or against a colonial power denying the right of self-determination) and those falling in other categories of irregular or guerrilla forces.
5. The strong enthusiasm which was shown during and immediately after the Second World War for holding individuals to responsibility for criminal violations of the law of war has materially diminished. When the evil that men had done was clear and when their countries had been overcome in war, it was easy to make out the case for imposing penalties on those who had committed war crimes or crimes against humanity. But when prisoners were categorically stigmatized as “war criminals” not entitled to treatment as prisoners of war under the Geneva Conventions of 1949, as happened in Korea and Vietnam, the notion of individual criminality took on an alarming aspect. Thus in the arrangements at the end of both of these conflicts, all prisoners of war were to be repatriated without regard to charges of war crimes that might have been made against them.
However, there was widespread sentiment within the United States during the war in Vietnam that members of the armed forces of the United States who committed violations of the law of war should be tried and punished and that a belligerent should at least be prepared to keep its own house in order.
In view of fears about the trial of individuals by the enemy in time of war and the almost insurmountable difficulties put in the way of trial by an international tribunal (such as those of Nuremberg and Tokyo) under the Geneva Conventions of 1949, it seems that the responsibility for enforcing compliance with the law of war has devolved almost exclusively on the Power on which violators of the law of war depend.