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You are here: AustLII >> AustLII Resources >> Human Rights Law Resources >> 2001 >> [2001] HRLRes 7 |
By Dr. Hans-Peter Gasser (Modified by Alfred Boll), International
Committee of the Red Cross
Law and war: introductory comments on international humanitarian law, past
and present.
International humanitarian law (IHL) - also called the law of armed conflict and previously known as the law of war – is a special branch of international law governing situations of armed conflict -- in a word, war. International humanitarian law seeks to mitigate the effects of war, first in that it limits the choice of means and methods of conducting military operations, and secondly in that it obliges the belligerents to spare persons who do not or no longer participate in hostile actions.
Today, at the beginning of the 21st century, can this still be considered to be a meaningful or legitimate goal?
War is characterized by outbursts of primitive, raw violence. When States cannot or will not settle their disagreements or differences by means of peaceful discussion, weapons are suddenly taken up. War inevitably results in immeasurable suffering among people and in severe damage to objects. War is by definition evil, as the Nuremberg Tribunal set forth in its judgment of the major war criminals of the Second World War. No one could presently wish to justify war for its own sake.
Yet, States continue to wage wars, and groups still take up weapons when they have lost hope of just treatment at the hands of the government. And no one would condemn a war waged, for example, by a small State protecting itself against an attack on its independence (“war of aggression”) or by a people rebelling against a tyrannical regime.
Law and war? Can the law help States settle their conflicts (which are inevitable in any man-made order) peacefully, i.e. without loss of life or material damage? In other words, can the law help prevent war? Another question: in cases where war could not have been prevented, is it then the role of the law to concern itself with that war and its consequences, and thereby to give the war, as some maintain, an aura of respectability? Is the law of any value on the battlefield or in prison cells? Or was Cicero right when he sceptically said, “Laws are silent amidst the clash of arms”?
The starting point for any discussion of international humanitarian law is the means offered to States under contemporary international law for the peaceful settlement of conflicts without recourse to the use of force. The Charter of the United Nations prohibits war; it even prohibits the threat to use force against the territorial integrity or political independence of any State. The UN Charter does not, however, restrict the right of a State to resort to force in the exercise of its right to self-defense. The same holds true for third-party States who come to the aid of the State being attacked (right of collective self-defense). Finally, the UN may order military or non-military action to restore peace. Thus, war is prohibited under existing international law, with the exception of the right of every State to defend itself against attack.
The fact that international humanitarian law deals with war does not mean that it lays open to doubt the general prohibition of war. International humanitarian law quite simply stands mute on whether a State may or may not have recourse to the use of force. It does not itself prohibit war, rather it refers the question of the right to resort to force to the constitution of the international community of States as contained in the United Nations Charter. International humanitarian law is applicable whenever an armed conflict actually breaks out, no matter for what reason. Only facts matter; the reasons for the fighting are of no interest. In other words, international humanitarian law is ready to step in, the prohibition of the use of force notwithstanding, whenever war breaks out, whether or not there is any justification for that war.
A look at the recent past and at the present reveals how often war has been waged between States – even though international law prohibits the use of force. Clearly, international humanitarian law is an essential part of the order of peace as set forth in the Charter of the United Nations. The international community cannot, therefore, allow itself to neglect international humanitarian law.
International humanitarian law is part of universal international law whose purpose it is to forge and ensure peaceful relations between peoples. It makes a substantial contribution to the maintenance of peace in that it promotes humanity in time of war. It aims to prevent – or at least to hinder – mankind’s decline to a state of complete barbarity. From this point of view, respect for international humanitarian law helps lay the foundations on which a peaceful settlement can be built once the conflict is over. The chances for a lasting peace are much better if a feeling of mutual trust can be maintained between the belligerents during the war. By respecting basic rights and dignity of human beings, the belligerents help maintain that trust. Once it is clear, moreover, that international humanitarian law helps pave the road to peace, no further proof of its legitimacy is required.
It is hardly possible to find documentary evidence of when and where the first legal rules of a humanitarian nature emerged, and it would be even more difficult to name the “creator” of international humanitarian law. For everywhere that confrontation (between tribes, clans, the followers of a leader or other forerunners of the State( did not result in a fight to the finish, rules arose (often quite unawares) for the purpose of limiting the effects of the violence. Such rules, the precursors of present-day international humanitarian law, are to be found in all cultures. More often than not they are embodied in the major literary works of the culture (for example, the Indian epic Mahabharata), in religious books (such as the Bible or the Koran) or in rules on the art of war (the rules of Manu or the Japanese code of behaviour, the bushido). In the European Middle Ages, the knights of chivalry adopted strict rules on fighting, not least for their own protection. Such rules also existed and still exist in cultures with no written heritage.
The achievements of 19th century Europe must be viewed against this rich historical background. Today’s universal and for the most part written international humanitarian law can be traced directly back to two persons, both of whom were marked by a traumatic experience of war: Henry Dunant and Frances Lieber, who expressed an old idea in a form adapted to the times.
Dunant and Lieber both built on an idea put forward by Jean-Jacques Rousseau in The Social Contract, which appeared in 1762: “War is in no way a relationship of man with man but a relationship between States, in which individuals are only enemies by accident, not as men, but as soldiers...”. Rousseau continued, logically, that soldiers may only be fought as long as they themselves are fighting. Once they lay down their weapons “they again become mere men”. Their lives must be spared.
Rousseau thus summed up the basic principle underlying international humanitarian law, i.e. that the purpose of an attack may never be to destroy the enemy physically. In so doing he lays the foundation for the distinction to be made between members of a fighting force, the combatants, on the one hand, and the remaining citizens of an enemy State, the civilians not participating in the conflict, on the other. The use of force is permitted only against the former, since the purpose of war is to overcome enemy armed forces, not to destroy an enemy nation. But force may be used against individual soldiers only so long as they put up resistance. Any soldier laying down his arms, or obliged to do so because of injury, is no longer an enemy and may therefore, to use the terms of the contemporary law of armed conflict, no longer be the target of a military operation. It is in any case pointless to take revenge on a simple soldier, as he cannot be held personally responsible for the conflict.
The intellectual foundation for the rebirth of international humanitarian law in the 19th century was therefore laid. Henry Dunant could build on it. In his book A Memory of Solferino, he did not dwell so much on the fact that wounded soldiers were mistreated or defenceless people killed. He was deeply shocked by the absence of any form of help for the wounded and dying. He therefore proposed two practical measures calling for direct action: an international agreement on the neutralisation of medical personnel in the field, and the creation of a permanent organisation for practical assistance to the war wounded. The first led to the adoption in 1864 of the initial Geneva Convention; the second saw the founding of the Red Cross.
The first “Geneva Convention”, the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (of 22 August 1864) lays the legal groundwork for the activities of army medical units on the battlefield. Because they were neutralised, their immunity from attack could be upheld: medical units and personnel may be neither attacked nor hindered in the discharge of their duties. Equally, the local inhabitants may not be punished for assisting the wounded. The 1864 Convention made it clear that humanitarian work for the wounded and the dead, whether friend or foe, was consistent with the law of war. As everybody knows, it also introduced the sign of the red cross on a white background for the identification of medical establishments and personnel.
The 1864 Convention was accepted in an exceedingly short time by all the then independent States, and by the United States in 1882. In force for over forty years, it was revised in 1906 on the recommendation of the International Committee of the Red Cross (ICRC) and on the basis of the experience of several wars. The First World War was a serious test for the law of Geneva, and resulted in a further revision in 1929. Four years after the end of the Second World War the international community adopted four new Geneva Conventions (of 12 August 1949), which with their two Additional Protocols of 1977, are in force today.
In addition to the process set in motion by Henry Dunant and the ICRC to codify the rules for the protection of the wounded, the sick and the soldiers who had fallen into enemy hands, there were developments on a second front. President Lincoln asked Lieber, a lawyer, to put together a few rules on the conduct of war for the use of troops in the American Civil War. The manual contained rules covering all aspects of the conduct of war. The provisions of the Lieber Code were intended to influence the conduct of war with a view to preventing unnecessary suffering and to limiting the number of victims.
Lieber’s work heralded two momentous developments. First, it set a precedent for subsequent military handbooks and instructions on the law of war. Secondly, it marked the starting point for the second series of developments in modern international humanitarian law, which saw the emergence of rules on the conduct of war itself. The first evidence of this was a short agreement, the 1868 Declaration of St. Petersburg, which prohibited the use of a certain type of ammunition in view of the fact that such projectiles uselessly aggravated the suffering of disabled men or rendered their death inevitable. Since the purpose of military operations, i.e. to disable the greatest number of enemy soldiers, does not require the infliction of such horrendous wounds, the diplomatic representatives were able to agree on the prohibition of the use of this type of projectile.
The St. Petersburg Declaration, as it is usually referred to, is important today not so much because of the actual prohibition as because of the considerations which resulted in that prohibition. As is explained in the Preamble, “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”. In eliminating the possibility of total war, the St. Petersburg Declaration lends added strength to the above-mentioned principle of the law or war, namely that the belligerents are obliged to limit the use of force in meeting a (legitimate) military objective.
Both Hague Peace Conferences which took place at the turn of the century then attempted to set broader international legal limits to means and methods of warfare. The most important result was the Hague Convention No. IV of 18 October 1907 respecting the Laws and Customs of War on Land, and the annexed Hague Regulations.
The preambular paragraphs to Hague Convention No. IV contain one sentence which alone makes that treaty one of great importance. The Martens Clause, so called after the Russian representative, stipulates that in cases not covered by the rules of law, “the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established by civilised peoples, from the laws of humanity, and the dictates of public conscience”. The Martens Clause constitutes a legal “safety-net”. Where there are loopholes in the rules of positive law, says the Martens Clause, then a solution based on basic humanitarian principles must be found.
The Regulations on the Laws and Customs of War on Land had to stand the test of two world wars. In its judgment of the major Nazi war criminals, the Nuremberg Tribunal considered that these Regulations had become part of international customary law and were therefore binding on all States. This remains true to this day.
The topics dealt with in the Hague Regulations were subsequently developed to varying degrees. The chapter on prisoners of war was taken up in the 1929 Geneva Convention, whereas the Fourth 1949 Geneva Convention developed the legal rules pertaining to occupied territory. The actual law of the conduct of hostilities was taken up in Additional Protocol I of 1977.
The Second Hague Peace Conference also examined war at sea and adopted several conventions on different aspects of the law of war at sea. The Conference also went a step further than the St. Petersburg Declaration and prohibited certain types of weapons and munitions. Most importantly, however, a conference convened by the League of Nations in 1925 adopted the Protocol Prohibiting the Use of Poisonous Gases and Bacteriological Methods of Warfare. The prohibition of the use of poisonous gases in particular, which has become a rule of customary international law and is therefore binding on all States, has been an important factor in the struggle to ban inhumane weapons. At present, a comprehensive treaty on chemical weapons prohibits not only their use but also their development, production and stockpiling.
On 12 August 1949, the representatives of 48 Stat4es unanimously adopted four new conventions for the protection of the victims of war. These conventions were the result of lengthy consultation which the ICRC had undertaken on the strength of its experiences during the Second World War. They were the work not only of legal experts and military advisers, but also of representatives of the Red Cross movement. The four Geneva Conventions of 12 August 1949 replaced the 1929 Conventions, and in part Hague Convention No. IV.
The first three Conventions cover well-known topics, namely protection of the wounded and sick, the shipwrecked and prisoners of war. The Fourth Geneva Convention, however, breaks new ground in that it protects civilian persons who have fallen into enemy hands from arbitrary treatment and violence. Its most important section is that on occupied territories. The 1949 treaties also led to a further extremely important development: the extension of the protection under humanitarian law to the victims of civil wars.
Until today, the Geneva Conventions have become the most universal of international treaties: they are presently binding on 188 States – with few exceptions the entire community of States.
The years after 1949 have not brought peace. Rather, the entire period has been characterised by countless conflicts. The decolonisation of Africa and Asia was often achieved through violent clashes. In the struggle between the (materially) weak and the (militarily) strong, refuge was taken in methods of fighting which were hardly compatible with the traditional manner of waging war (guerilla warfare). At the same time, an unlimited arms race led to the development of arsenals with weapon systems based on the latest technology. The use of such weapons, above all nuclear weapons, would have inevitably called into question the principles of international humanitarian law.
But the second half of the 20th century has also been characterised by the triumph of human rights. International humanitarian law could not and did not wish to remain indifferent to those changes. When one remembers that the 1949 Conventions almost completely pass over a very important point, namely the protection of the civilian population from the direct effects of hostilities, it is easy to understand why the ICRC, after much preparation, submitted two new draft treaties in the 1970s to governments for discussion and adoption. The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in Geneva from 1974 to 1977, adopted the two Protocols additional to the Geneva Conventions on 8 June 1977. Protocol I contains new rules on international armed conflicts, Protocol II develops the rules of international humanitarian law governing non-international armed conflicts. The four 1949 Geneva Conventions remained unchanged, but were considerably supplemented by the Additional Protocols.
The Diplomatic Conference was attended by the representatives of 102 States and several national liberation movements. Non-European attitudes, concern from all over the world and new priorities influenced the texts, which nevertheless remain true to a universally accepted humanitarian goal. With the Additional Protocols, international humanitarian law gained a foothold in the Third World.
Both Protocols strengthen the protection of the defenceless to a considerable degree. Protocol I has been ratified by 155 States, and Protocol II by 148, allowing us to conclude that both are on the way to becoming universal international law, like the 1949 Geneva Conventions.
Protocol I brings together the laws of Geneva and of the Hague, which until then had developed separately. The view that it was not enough to assist the victims of hostilities finally triumphed. Rather, the law should set limits to military operations so that unnecessary suffering and damage can be avoided as much as possible. With the Fourth Geneva Convention on the protection of civilian persons and Protocol I, the law of Geneva moved a giant step closer to effective protection of the civilian population against the effects of war.
In addition to the two Additional Protocols, the years after 1949 saw further innovations in the protection under international law of persons and objects in time of war. There was the Convention of 14 May 1954 for the protection of cultural property in the event of armed conflict. Strongly influenced by the Geneva Conventions, the treaty created a sort of “Red Cross for cultural property” and charged UNESCO with its implementation.
Reference must also be made to the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction. The Convention decisively strengthened one of the prohibitions set forth in the 1925 Geneva Protocol, namely the prohibition of bacteriological weapons. The Chemical Weapons Treaty of 1993 prohibits not only the use but also the production and possession of chemical weapons. The Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (of 10 December 1976) was intended to nip in the bud the expansion of the conduct of hostilities in a new field, that of environmental modification techniques. These conventions were adopted in the framework of the United Nations.
Finally, the Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively injurious or to have Indiscriminate Effects, and its four protocols, are also worth mentioning. Based on preparatory work done by the ICRC, the Convention was negotiated at a conference convened by the United Nations. Its aim is to limit the use of certain particularly grim weapons. The protocols deal with incendiary weapons, mines, non-detectable fragments and blinding laser weapons. Further protocols can be drawn up at any time at the request of contracting parties. The Rome Statute of 17 July 1998 creating an International Criminal Court must also be mentioned as a potentially very significant instrument in relation to the enforcement of international humanitarian law.
This impressive list of humanitarian law treaties should not blind us to the fact that the law for the protection of victims of war is not limited to treaties, i.e. to written texts. Agreements between States are at present undoubtedly the most common source of international laws and obligations; they have not, however, replaced unwritten law, or customary law, which contains important principles and rules. Large sections of the 1949 Geneva Conventions can be traced back to customary law. Treaty law and customary law can therefore develop simultaneously along the same lines. Sometimes international customary law must step in, for example when States cannot reach agreement on a treaty rule.