war, law of

Introduction

      that part of international law dealing with the inception, conduct, and termination of warfare. 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.

      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 article shows how such a process of supplementation has been carried out.

      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 article.

Roots of the international law of war

Law by treaty

      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 (Grotius, Hugo) 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.

      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.

      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 (just war)” from those which were “unjust.” This was a Christian doctrine formulated by, among others, St. Augustine (Augustine, Saint), 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.

      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 (Dunant, Henri), a Swiss citizen and founder of the Red Cross, was preeminent in leading a number of states to conclude the first Geneva Convention (Geneva Conventions) in 1864 to protect the wounded and sick. But the first attempt to codify the laws of war was drafted by Francis Lieber (Lieber, Francis), 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 (Hague Convention), 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.

Law by custom

      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 (Nürnberg trials) 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.

      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:

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.

      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.

Commencing hostilities

      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 (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.

Legally defining war

      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 (Falkland Islands War) 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.

Aggression (aggressive behaviour)

      The Security Council (Security Council, United Nations) 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.

      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).

      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.

      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.

self-defense

      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 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.

      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.

      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 (Six-Day War) 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.

      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.)

      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 (hijacking) while traveling on a civilian airliner by a terrorist organization and who were being kept hostage at Entebbe (Entebbe raid) 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).

International and internal conflicts

Regional action

      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 (Cuban missile crisis), 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.

War by proxy

      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.

Civil war

      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.

      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.

War of national liberation

      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.

Conducting hostilities

      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.

      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.

Lawful combatants

      Those who may lawfully take part in hostilities are those who would be entitled to prisoner-of-war (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.

      A spy (espionage) 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.

      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.

       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.

      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.

Limits on the methods and means of war

Weapons (military technology)

      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.”

      This principle explains, to some extent, the prohibition on the use of certain weapons. Hence, the use of chemical (chemical weapon) 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.

      The use of nuclear weapons (nuclear weapon) 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 (atomic bomb) 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.

      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.”

      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.

      On the seas, naval (naval warfare) 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.

Civilians

      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.

      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.

Neutrals (neutrality)

      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.

      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.

Prohibited areas of combat

      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).

Prisoners of war (prisoner of war)

      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.

      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.

      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.

      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.

      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.

      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.

Occupation

      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.

      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 (military 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.

      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.”

Cessation of hostilities

      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.

      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.

War crimes (war crime)

      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 (Nürnberg trials) 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 (court) 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.”

      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 (Eichmann, Adolf), 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.)

      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.

      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.

      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).

      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.

Peter John Rowe

Additional Reading

Among comprehensive works of reference quality on the law of war are L. Oppenheim, International Law, a Treatise, 8th ed., ed. by H. Lauterpacht, vol. 2, Disputes, War, and Neutrality (1962); and Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol. 2, The Law of Armed Conflict (1968), an interpretation of the law chiefly through court decisions.For the history of the laws of war, see Geoffrey Best, Humanity in Warfare (1980). For the development of the law of war as it exists today, see Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, 4 vol. (1952–60); Claude Pilloud et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987; originally published in French, 1986); G.I.A.D. Draper, The Red Cross Conventions (1958); Waldemar A. Solf and J. Ashley Roach (eds.), Index of International Humanitarian Law (1987); and L.C. Green, Essays on the Modern Law of War (1985).Special treatments of developments brought about by particular military campaigns include Robert R. Bowie, Suez 1956 (1974); Georges Abi-Saab, The United Nations Operation in the Congo, 1960–1964 (1978); Abram Chayes, The Cuban Missile Crisis (1974, reprinted 1987); Richard A. Falk (ed.), The Vietnam War and International Law, 4 vol. (1968–76); Allan Gerson, Israel, the West Bank, and International Law (1978); Alberto R. Coll and Anthony C. Arend (eds.), The Falklands War: Lessons for Strategy, Diplomacy, and International Law (1985); and Scott Davidson, Grenada: A Study in Politics and the Limits of International Law (1987). For internal conflicts, see Richard A. Falk (ed.), The International Law of Civil War (1971); and Heather A. Wilson, International Law and the Use of Force by National Liberation Movements (1988).Laws on particular weapons, means of conflict, and areas of war are explored in Howard S. Levie, The Code of International Armed Conflict, 2 vol. (1986); Morris Greenspan, The Modern Law of Land Warfare (1959); D.P. O'Connell, The International Law of the Sea, 2 vol. (1982–84); Ann Van Wynen Thomas and A.J. Thomas, Jr., Development of International Legal Limitations on the Use of Chemical and Biological Weapons, 2 vol. (1968); and Peter Rowe, Defence: The Legal Implications: Military Law and the Laws of War (1987).War crimes as a branch of military law are analyzed in Robert K. Woetzel, The Nuremberg Trials in International Law: With a Postlude on the Eichmann Case (1962); Ann Tusa and John Tusa, The Nuremberg Trial (1983); Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951 (1979); L.C. Green, Superior Orders in National and International Law (1976); and Yoram Dinstein, The Defence of “Obedience to Superior Orders” in International Law (1965).Peter John Rowe

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