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The Laws of War on Land

Published online by Cambridge University Press:  27 February 2017

George H. Aldrich
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Extract

One hundred years after the Hague Peace Conference of 1899 seems an appropriate time to review the subsequent developments in codification and practice that have molded the present laws applicable to the conduct of armed conflict and, more importantly, to identify those aspects of the law that are most in need of further development in the early years of the next century. Any attempt to do so in a comprehensive and detailed manner would obviously far exceed the scope of an article; consequendy, what follows is a more selective approach, consistent with this limited scope, that focuses on the most troubled areas of the law.

Type
Symposium: The Hague Peace Conferences
Information
American Journal of International Law , Volume 94 , Issue 1 , January 2000 , pp. 42 - 63
Copyright
Copyright © American Society of International Law 2000

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References

1 In making this selection, I am, however reluctantly, setting aside many worthy candidates. These include such issues as the right of prisoners of war to refuse repatriation, including safeguards to prevent abuses; improving the rights of individual war victims to obtain redress when they suffer from violations of the law; employing modern technology to improve the protection of medical personnel, units, and transports, including medical evacuation helicopters in battle areas; and the question whether prisoner-of-war camps should be neutralized or, if not, can be marked, as required by law, given modern technical means by which their liberation could be attempted.

2 Project of an International Declaration concerning the Laws and Customs of War, Aug. 27, 1874, 65 Brit. & Foreign St. Papers 1005 (1873–74), reprinted in The Laws of Armed Conflicts 27 (Dietrich Schindler &Jiří Toman eds., 3d rev. ed. 1988).

3 The Laws of War on Land, Sept. 9, 1880, 5 Institut de Droit International, Annuaire 156 (1881–82), translated and reprinted in The Laws of Armed Conflicts, supra note 2, at 35.

4 Regulations Respecting the Laws and Customs of War on Land, Art. 1, annexed to Convention [No. LV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

5 Id., Art. 2.

6 Id., Art. 3.

7 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 1, para. 4, 1125 UNTS 3 [hereinafter Protocol I].

8 Convention [No. III] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 4, 6 UST 3316, 75 UNTS 135 [hereinafter Geneva Convention No. III].

9 Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 5,6 UST 3516, 75 UNTS 287 [hereinafter Geneva Convention No. IV].

10 Julius Stone, Legal Controls of International Conflict 565 (1954).

11 In some circumstances, resistance groups were able to meet the requirements of the law, e.g., where they existed in territory not fully controlled by the occupiers, such as the partisans in Yugoslavia and the Maquis in the French Alps during the Second World War.

12 Sixty-three states were represented at the Geneva Conference in 1949, whereas 124 states were represented at the Geneva Conference that produced the 1977 Additional Protocols when it convened in 1974. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary 13 (Jean Picteted., 1952); International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, atxxxiii (Yves Sandoz, Christophe Swinarski & Bruno Zimmermann eds., 1987). Nonvoting participants in the latter conference included 11 national liberation movements. Id.

13 Protocol I, supra note 7, Art. 1, para. 4.

14 Id.

15 The same reasons predictably would also deter any state that felt itself to be a target of the provision from becoming a party to the Protocol.

16 Protocol I, supra note 7, Art. 96, para. 3.

17 Id., Art. 43, para. 1.

18 Id.

19 Article 44, paragraph 2 makes clear that violations of the laws of war cannot deprive a combatant of his status as a combatant or of his right to be a prisoner of war except for a failure to comply with the minimum rule of distinction set forth in Article 44, paragraph 3, second sentence. Article 45 also providesjudicial safeguards to any person who is to be tried for an offense arising out of the hostilities.

20 See, e.g., Letter of Transmittal of Protocol II to the Senate by President Reagan, S. Treaty Doc. No. 2, 100th Cong, at III (1987), reprinted in 81 AJIL 910 (1987); Abraham D. Sofaer, The Rationale for the United States Decision, 82 AJIL 784 (1988). Responses by the present author are found in Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 AJIL 1 (1991), and in Why the United States of America Should Ratify Additional Protocol I, in Humanitarian Law of Armed Conflict: Challenges Ahead 127 (Astrid J. M. Delissen & Gerard J. Tanja eds., 1991).

21 Protocol I, supra note 7, Art. 44, para. 3.

22 A number of states have deposited statements of understanding to that effect with their instruments of ratification.

23 Protocol I, supra note 7, Art. 44, para. 7.

24 See id., para. 3. These terms have also been the subject of numerous statements of understanding at the time of ratification of the Protocol.

25 One must distinguish attacks on legitimate military objectives that are also designed to have an adverse effect on enemy morale from attacks that are not aimed primarily at such objectives but, instead, are intended primarily to spread terror among the civilian population. The latter were declared unlawful in Protocol I. See Protocol I, supra note 7, Art. 51, para. 2. As a practical matter, this distinction may not always be clear.

26 Professor Stone made this point most eloquently. See Stone, supra note 10, at 335–41.

27 See Protocol I, supra note 7, Art. 51, para. 5 (prohibiting target-area bombardment in cities only where the targets are “clearly separated and distinct”).

28 Such agreement has been obtained for chemical and biological weapons and, recently, for antipersonnel mines and laser weapons. See Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, S. Treaty Doc. No. 21, 103d Cong. (1993), 32 ILM 800 (1993) (entered into force Apr. 29, 1997); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) Weapons and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 UST 583, 1015 UNTS 163; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 ILM 1507 (1997); Protocol [IV to Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects] on Blinding Laser Weapons, Oct. 13, 1995, 35 ILM 1218 (1996).

29 Regulations Respecting the Laws and Customs of War on Land, supra note 4, Art. 23(a).

30 Id., Art. 25.

31 The articles state:

Article 26

The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.

Article 27

In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.

It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.

Id., Arts. 26, 27 (emphasis added).

32 See Geneva Convention No. IV, supra note 9, Arts. 13–26.

33 See Protocol I, supra note 7, Arts. 48–60.

34 Id., Art. 48.

35 Id., Art. 50, para. 1.

36 Id., paras. 2, 3.

37 Id., Art. 52, para. 2.

38 See id., Art. 51, paras. 2–6. The question of reprisals is discussed below as part of the analysis of the problems of improving compliance with the law. See text at notes 72–75 infra.

39 Protocol I, supra note 7, Art. 51, para. 4(a).

40 Id., para. 4(b).

41 Id., para. 4(c).

42 Id., Art. 51, para. 5(a).

42 Id., para. 5(b).

44 Id., Art. 52, para. 1.

45 Id., para. 3.

46 Id., Art. 57.

47 See id., Art. 58.

48 See id., Art. 57, paras. 1, 4.

49 See id., paras. 2, 3.

50 Id., Art. 58.

51 Such movement of civilians, notoriously done by Iraq in 1990, is specifically forbidden by Article 51, paragraph 7 of Protocol I.

52 That conclusion does not apply to the prohibitions of reprisals, at least those contained in Articles 51 and 52, which are discussed infra part III.

53 Protocol I, supra note 7, Art. 70, para 3(a), (b).

54 Id., Art. 54, para. 2.

55 Id., Art. 56, para. 1.

56 Id., para. 2(a).

57 Id., para. 2(b).

58 Id., paras. 3, 5(b).

59 Id., Arts. 59–60.

60 Geneva Convention No. IV, supra note 9, Art. 15.

61 I did so in my inaugural address as Professor of International Humanitarian Law at Leiden University on November 13, 1990. See George H. Aldrich, Compliance with International Humanitarian Law, Int'l Rev. Red Cross, No. 282, May–June 1991, at 294.

62 International Criminal Tribunal for the former Yugoslavia, SC Res. 827, UN SCOR, 48th Sess., Res. & Dec, at 29, UN Doc. S/INF/49 (1993), reprinted in 32 ILM 1203 (1993); International Criminal Tribunal for Rwanda, SC Res. 955, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1598 (1994).

63 The International Criminal Tribunal for the former Yugoslavia has publicly indicted 91 individuals in 25 indictments. As of October 21, 1999, 6 accused had died; charges had been dropped against 18 of the accused; and one was serving his sentence, another had completed his sentence, and a third had been acquitted.

64 Rome Statute of the International Criminal Court.July 17, 1998, UN Doc. A/CONF.183/9* (1998), reprinted in 37 ILM 999 (1998).

65 In this connection, one can only note with concern the fact that a few countries, including the United States, not only have not signed the Rome convention, but also have stated their firm opposition to some aspects of the convention. If further modifications to meet their objections should prove impossible, the ultimate success of the court would become more doubtful.

66 See Convention [No. I] for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 10, 6 UST 3114, 75 UNTS 31 [hereinafter Geneva Convention No. I]; Convention [No. II] for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, Art. 10, 6 UST 3217, 75 UNTS 85 [hereinafter Geneva Convention No. II]; Geneva Convention No. III, supra note 8, Art. 10; Geneva Convention No. IV, supra note 9, Art. 11.

67 See Geneva Convention No. I, supra note 66, Art. 10; Geneva Convention No. II, supranote 66, Art. 10; Geneva Convention No. III, supra note 8, Art. 10; Geneva Convention No. IV, supra note 9, Art. 11.

68 One example with which the present author was familiar was the unsuccessful efforts by the United States to have either a protecting power or the ICRC accepted by Nordi Vietnam to scrutinize the treatment of American prisoners of war between 1965 and 1973. The United States proposed Egypt, with which its relations were then somewhat strained, in the hopes it might be accepted, but the North Vietnamese refused, as they did the efforts of the ICRC to be admitted for humanitarian purposes. The ICRC was given access to the POW camps operated by Soudi Vietnam.

69 See Protocol I, supra note 7, Art. 5. Article 5 reads, in part:

1. It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter aliathe designation and acceptance of those Powers, in accordance with the following paragraphs. Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict.

2. From the beginning of a situation referred to in Article 1, each Party to the conflict shall without delay designate a Protecting Power for the purpose of applying the Conventions and this Protocol and shall, likewise without delay and for the same purpose, permit the activities of a Protecting Power which has been accepted by it as such after designation by the adverse Party.

3. If a Protecting Power has not been designated or accepted from the beginning of a situation referred to in Article 1, the International Committee of the Red Cross, widiout prejudice to the right of any other impartial humanitarian organization to do likewise, shall offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent.

…

4. If, despite the foregoing, diere is no Protecting Power, the Parties to the conflict shall accept without delay an offer which may be made by the International Committee of the Red Cross or by any other organization which offers all guarantees of impartiality and efficacy, after due consultations with the said Parties and taking into account the result of these consultations, to act as a substitute… .

5. In accordance with Article 4, the designation and acceptance of Protecting Powers for the purpose of applying the Conventions and this Protocol shall not affect the legal status of the Parties to the conflict or of any territory, including occupied territory.

70 Id., Art. 90.

71 See Frits Kalshoven, Belligerent Reprisals 337–44, 367–69 (1971).

72 See Protocol I, supra note 7, Art. 51, para. 6 (civilians and the civilian population), Art. 52, para. 1 (civilian objects), Art. 53 (cultural objects and places of worship), Art. 54, para. 4 (objects indispensable to the survival of the civilian population), Art. 55, para. 2 (the natural environment), & Art. 56, para. 4 (dams, dikes, and nuclear power stations).

73 See New Rules for Victims of Armed Conflicts 315 (Michael Bothe, Karl Josef Partsch & Waldemar A. Solf eds., 1982).

74 See id. at 311–13.

75 Ratification of the Additional Protocols by the United Kingdom of Great Britain and Northern Ireland, Jan. 28, 1998, para, (m), reprinted in Int'l Rev. Red Cross, No. 322, Mar. 1998, at 186, 189–90.

76 Only after compliance has generally been improved would it seem possible to move furdier toward the perfecting of individual rights of protected persons. One may merely hope diat such a point may be reached within the next one hundred years. See George H. Aldrich, Individuals as Subjects of International Humanitarian Law, in Theory of International Law at the Threshold of the 21st Century 851 (Jerzy Makarczyk ed., 1996).

77 There were, of course, complications when some tiiird states recognized the belligerent status of the rebel party and others did not. See, e.g., Stone, supra note 10, at 305–06.

78 See, e.g., Geneva Convention No. IV, supra note 9, Art. 3.

79 Id. Article 3, paragraph 1 reads:

In the case of armed conflict not of an international character occurring in the 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 circumstances be treated humanely, without any adverse distinction founded on 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, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

80 Id.

81 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened far signature Dec. 12, 1977, 1125 UNTS 609 [hereinafter Protocol II].

82 Id., Art. 4, para. 1 & Art. 7, para. 1.

83 See id., Art. 4, paras. 1–2.

84 See id., para. 3.

85 See id., Art. 5.

86 See id., Art. 6.

87 See id., Arts. 13–14.

88 See id., Arts. 15, 16,18.

89 Once they succeeded in having Protocol I include wars of national liberation, they clearly lost much interest in Protocol II.

90 Protocol II, supra note 81, Art. 1, para. 1.

91 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 4, 103–05, paras. 218–20 (June 27).

92 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT–94–1–AR72 (Oct. 2,1995), reprinted in 35 ILM 32 (1996).

93 Id., para. 87.

94 Prosecutor v. Martic, Review of the Indictment Pursuant to Rule 61, No. IT–95–11–R61 (Mar. 8,1996; revised Mar. 13, 1996), reprinted in 108 ILR 39.

95 See, e.g., George H. Mdrich, Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, 90 AJIL 64 (1996); Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AJIL 238 (1996).

96 Rome Statute of the International Criminal Court, supra note 64.

97 Id., Art. 8, para. 2(c).

98 For international conflicts, use of poison and use of poison gas are listed as war crimes. See id., Art. 8, para. 2(b)(xvii)–(xviii).

99 From July 1965 until the end of the Vietnam War in 1973,1 was the State Department lawyer most directly concerned with the application in that conflict of international humanitarian law, and I was Dr. Kissinger's legal adviser for the negotiation of the peace agreement in January 1973

100 North Vietnam's excuse was based on its reservation to Article 85 of the 1949 Geneva Convention No. III on prisoners of war, supra note 8 (a reservation made by all of the then-Communist states), which refused to accept continued POW status for prisoners of war tried and convicted of war crimes or crimes against humanity. In fact, North Vietnam simply stated that all American prisoners were war criminals; there were no trials or convictions. For a response, see George H. Aldrich, Entitlement of American Military Personnel Held by North Viet-Nam to Treatment as Prisoners of War Under the Geneva Convention of 1949 Relative to the Treatment of Prisoners of War, in John Norton Moore, Law and the Indo-China War 635 (1972).

101 One can, of course, imagine circumstances in which the intervening state is not allied with one side or the other, in which event it might still be possible to maintain that the law applicable to noninternational armed conflicts remains applicable to the conflict between the two original parties. In that event, there would be two armed conflicts, not one. One must also distinguish situations in which United Nations peacekeepers are present—but not as combatants—in the territory of a state in which an internal armed conflict is in progress. On that, see Christopher Greenwood, International Humanitarian Law and United Nations Military Operations, 1 Y.B. Int'l Humanitarian L. 3 (1998).