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Humanitarian Law or Humanitarian Politics? The 1974 Diplomatic Conference on Humanitarian Law

I. The Existing Law

In formal terms, the body of international humanitarian law applicable in time of war is mature, sophisticated, certain and widely accepted. The core of this law is the Geneva Conventions of August 12, 1949 for the Protection of War Victims, consisting of four treaties relative to the Wounded and Sick,1 the Wounded, Sick and Shipwrecked at Sea,2 Prisoners of War,3 and Civilians.4 The ancestry of these treaties may be traced back to the first Red Cross Convention of 1864.5 As of January 1, 1974 there were 140 parties to the four Geneva Conventions of 1949; the non-parties, with the exception of the Republic of China, are of little consequence. It is thus only of academic interest to consider whether the Conventions have passed into customary international law.

Closely related to these Conventions are the Regulations annexed to Convention No. IV of The Hague respecting the Laws and Customs of War on Land,6 which still govern the qualifications of belligerents, the conduct of hostilities, and “Military Authority over the Territory of the Hostile State” (or belligerent occupation). The Hague Regulations were held by the Nuremberg Tribunal to be declaratory of customary international law7 and are thus binding upon all states, notwithstanding the fact that there are many fewer parties to the Hague Regulations than to the Geneva Conventions of 1949.

It has occasionally been suggested that a distinction should be drawn between the “Hague law” and the “Geneva law.” While the Hague Regulations do contain a number ofarticles dealing with the conduct ofwarfare between the opposing armed forces, the thrust of the Regulations is nevertheless humanitarian, and it is not inappropriate to put them in the same category with the humanitarian treaties drawn up at Geneva in 1949.

To these treaties might also be added 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[1] and the Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict.[2] The first has been asserted in some quarters[3] [4]—but not universally—to have passed into customary international law binding on all states. The second is binding only on the parties. Several of the Hague Conventions of 1907 and a variety of other instruments survive in a sort of juridical half-life to regulate the conduct of naval warfare and to specify the rights and duties of neutral states. But with these treaties, one moves some distance away from the central elements of international humanitarian law in war—the Geneva Conventions of 1949.

The Geneva Civilians Convention of 1949 was the first convention to be devoted entirely to the protection of the civilian population, but the single greatest cause of death, maiming and suffering amongst the civilian population was not confronted directly in the treaty. The terrible devastation that had been brought about in cities through aerial bombardment during the Second World War led critics to say that it was all very well to protect civilians in occupied areas, and civilian medical establishments, and interned civilians (as was done in the Geneva Civilians Convention) but that what was really needed was some protection of civilians against aerial bombardment, notably aerial bombardment of an indiscriminate character. Not long after the International Committee of the Red Cross (I.C.R.C.) and the Diplomatic Conference of Geneva had completed their work on the four Conventions, the I.C.R.C. turned to this question. Working with the assistance of groups of experts, the I.C.R.C. drew up, during the period from 1953 to 1956, a set of Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War.11 The Rules specified that

[a]ttacks directed against the civilian population, as such, whether with the object of terrorizing it or for any other reason, are prohibited. This prohibition applies both to attacks on individuals and to those directed against groups.[5]

The Draft Rules limited the objectives which may be attacked to “military objectives,” defined those objectives, stipulated the precautions that a belligerent would be obliged to take in attacking military objectives, and forbade the use of “weapons with uncontrollable effects.”[6]

The Draft Rules were submitted to the XIXth International Red Cross Conference held in New Delhi in 1957. The Rules were sympathetically received but were simply referred to governments for their consideration,[7] which can be understood to be a form of burial. Many governments saw the Rules as too stringent, making the use of nuclear weapons impossible and conventional bombardment questionable, if the Rules were to be taken seriously and observed. And so the matter was to lie for approximately a decade, until the theme was picked up again in the context of further development of the humanitarian law of war in general, culminating in the Diplomatic Conference of 1974-75 on International Humanitarian Law.

The most that could be salvaged from the Draft Rules in the 1960s was a quite unexceptionable set of principles which was adopted by the XXth International Conference of the Red Cross in 1965:

  • —that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;
  • —that it is prohibited to launch attacks against the civilian populations as such;
  • —that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible;
  • —that the general principles of the Law of War apply to nuclear and similar weapons;. . . . [8]

This was a far cry from the specificity of the Draft Rules.

The four hundred or more articles of the Geneva Conventions constitute one of the most developed and widely accepted bodies of rules governing the conduct of states and of individuals alike. Yet the conflicts that have taken place since the Conventions were drawn up in 1949 have often been characterized by widespread violations of the Conventions or the simple refusal of belligerents to acknowledge that the Conventions have any application to the conflict in which they are involved. The world has witnessed, with more complacency than active concern, the sufferings of military and civilian victims of war in the successive outbreaks of violence between Israel and the Arab States, the Nigerian Civil War, the Bangladesh War of Independence, the Vietnam War, the Korean War, several wars between India and Pakistan, a conflict between India and China, the Congo operation by the United Nations, chronic violence over Cyprus, civil war in the Dominican Republic, and other conflicts. In the same period, new technology had produced weapons, such as cluster bomb units and fragmentation weapons, which were even more devastating in their effects than the conventional weapons hitherto employed. The political dimensions of warfare had also taken on new forms, as the ideological bases of war had developed to deal with problems of colonialism and racism. The new concept of “wars of national liberation” grew out of this ideology.

  • [1] Signed June 17, 1925, 94 L.N.T.S. 65. 2 Done May 14, 1954, 249 U.N.T.S. 240.
  • [2] 10 See G. A. Res. 2674 (XXV), Dec. 9, 1970, 25 U.N. GAOR Supp. 28, at 75, 76, U.N. Doc.
  • [3] A/8028 (1971).
  • [4] International Committee of the Red Cross [hereinafter I.C.R.C.] (1956).
  • [5] Id., art. 6, para. 1, at 57.
  • [6] Id., art. 14, Comment, at 101-06.
  • [7] Resolution XIII, Project de Regles Limitant les Risques Courus par la Population Civile enTemps de Guerre, Resolutions Adoptees par la XIXе Conference Internationale de la Croix-Rouge, 39Revue Internationale de la Croix-Rouge 679, 684 (1957).
  • [8] Resolution XXYIII, Protection of Civilian Populations against the Danger of IndiscriminateWarfare, XXth International Conference of the Red Cross, Vienna, October 1965,Resolutions 21, 22 (1965); see also Baxter, Perspective: The Evolving Laws of Armed Conflicts, 60Mil. L. Rev. 99 (1973).
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