Reflections on the Law of War (International Humanitarian Law)

Reflections on the Law of War

International Humanitarian Law Series VOLUME 17 Editors-in-Chief Professor Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor Antonio Cassese Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser Professor Leslie C. Green H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare – questions of application of the various legal regimes for the conduct of armed conflict – issues relating to the implementation of International Humanitarian Law obligations – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law. The titles in this series are listed at the end of this volume.

Reflections on the Law of War Collected Essays

by

Frits Kalshoven

LEIDEN • BOSTON 2007

Printed on acid-free paper. A c.i.p. record for this book is available from the Library of Congress.

isbn: 978 90 04 15825 2 © 2007 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and vsp. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Cover photograph © anp, The Netherlands. printed and bound in the netherlands.

Table of Contents

Preface PART 

ix WARFARE: THE ACTORS, THE LAW

Chapter  The Setting Chapter  Introduction to the Law of Warfare PART 

  

REAFFIRMATION AND DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW



Chapter  The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,  May -  June, 



Chapter  The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session),  May -  June, 



Chapter  The First Session of the Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva,  February -  March 



Chapter  Applicability of Customary International Law in Noninternational Armed Conflicts



Chapter  The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne,  September -  October, 



Chapter  The Conference of Government Experts on the Use of Certain Conventional Weapons, Second Session, Lugano,  January -  February, 



vi

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Chapter  The Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva,  - 



Chapter  The Netherlands and International Humanitarian Law Applicable in Armed Conflicts



Chapter  Development of Customary Law of Armed Conflict



PART 



MEANS AND METHODS OF WARFARE

Chapter  Grotius’ Jus in Bello, with Special Reference to Ruses of War and Perfidy



Chapter  Incendiary Weapons: Legal and Humanitarian Aspects



Chapter  The Soldier and his Golf Clubs



Chapter  Conventional Weaponry: The Law from St. Petersburg to Lucerne and Beyond



Chapter  The Conventional Weapons Convention: Functions of Underlying Legal Principles



Chapter  Prohibitions or Restrictions on the Use of Methods and Means of Warfare in the Gulf War,  - 



Chapter  The Protection of Cultural Property in the Event of Armed Conflict within the Framework of International Humanitarian Law



Chapter  Bombardment: From “Brussels ” to “Sarajevo ”



PART 



COMBATANTS, CIVILIANS, GUERRILLA FIGHTERS, TERRORISTS

Chapter  The Position of Guerrilla Fighters under the Law of War



Chapter  “Guerrilla” and “Terrorism” in Internal Armed Conflict



Chapter  Guerrilla and Humanitarian Law:An Introduction



Chapter  Assistance to the Victims of Armed Conflicts and Other Disasters



Chapter  Non-Combatant Persons: A Comment to Chapter  of the Commander’s Handbook on the Law of Naval Operations 

Table of Contents

vii

Chapter  Enemy Merchant Vessels as Legitimate Military Objectives



Chapter  “Enemy Combatants” in American Hands: Are There Limits to the President’s Discretion?



PART 



COMPLIANCE AND ENFORCEMENT

Chapter  Implementation and Enforcement of International Humanitarian Law



Chapter  Instructions for the Armed Forces



Chapter  Individual Right to Claim Damages under Article  of Hague Convention IV: Expert Opinion, 



Chapter  Individual Right to Claim Damages under Article  of Hague Convention IV: Supplementary Expert Opinion, 



Chaper  The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit



Chapter  Will International Humanitarian Law Protect Tomorrow’s War Victims?



PART 



REPRISALS AND FACT-FINDING

Chapter  Reprisals in the CDDH



Chapter  Belligerent Reprisals Revisited



Chapter  The International Humanitarian Fact-Finding Commission: Its Birth and Early Years



Chapter  Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia Tribunal



Chapter  The International Humanitarian Fact-Finding Commission: A Sleeping Beauty?



Chapter  The International Humanitarian Fact-Finding Commission Established by the First Additional Protocol to the Geneva Conventions



PART 



HUMANITARIAN LAW AND HUMAN RIGHTS

Chapter  Protocol II, the CDDH and Colombia



viii

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Chapter  State Sovereignty vs. International Concern in Some Recent Cases of the Inter-American Court of Human Rights  Chapter  The Qualification of Specific Situations as International Armed Conflict



PART 



HUMANITARIAN LAW AND CRIMINAL LAW

Chapter  Some Observations on the Road to Rome



Chapter  From International Humanitarian Law to International Criminal law



PART 



HUMANITARIAN LAW AND NEUTRALITY

Chapter  Neutrality Law



Chapter  Impartiality and Neutrality in Humanitarian Law and Practice



Chapter  International Humanitarian Law and Violation of Medical Neutrality



Chapter  Legal Aspects of “Medical Neutrality”



Chapter  Freedom of Navigation and Neutrality in the Gulf War,  - : The Dutch and Belgian Mine-hunting Activities PART 

SUMMING UP



Chapter  The Centennial of the First International Peace Conference: Introduction



Chapter  Motion of Thanks



Index



Preface

This volume offers a selection of the papers I wrote in the course of these last 35 years. The first year, 1971, was significant in that it brought my work on “Belligerent Reprisals” to an end and at the same time marked the beginning of a decade of active involvement, as an expert for the Netherlands Government and Red Cross Society, in the “reaffirmation and development” of international humanitarian law (IHL). I have written about this process from the outset, resulting in a series of articles in the Netherlands Yearbook of International Law. Numerous other occasions arose then and later when I was invited to put my ideas on paper on a wide diversity of subjects in the sphere of IHL: for conferences, libri amicorum, or similar collective efforts. Rather than listing the papers in chronological order, I have divided them over parts covering more or less broad areas of the law of armed conflict. After an introductory part and a second one that reflects my long-standing involvement with “reaffirmation and development”, follow two parts on topics of substantive law: one (Part 3) on so-called Hague or battlefield law, i.e. the part of the law of armed conflict that governs actual warfare and the choice of weapons; and the other (Part 4), a mixture of Hague and Geneva law, the latter having to do more particularly with respect and protection of persons in an enemy’s power. I should add that Hague and Geneva law may be fundamentally distinct in their approach to war but at the same time, as members of the family of “law of armed conflict” are as closely related as dizygote twins can be. Parts 5 and 6 concern issues of implementation, including two that from the outset have been at the centre of my attention: reprisals (as the ultimate but harmful and unreliable remedy in the face of intolerable violations) and factfinding (as the potential but to this day ineffective alternative to reprisals). There follow papers on the relations of IHL with the fields of human rights (since the 1940s, Part 7), criminal law (since the 1990s, Part 8) and neutrality (since time immemorial, Part 9). And the papers in the closing Part 10 mark two events of particular importance in my personal life: one, the celebration of the Centennial of the Hague Peace Conference and the other, the award of the Henry Dunant Medal. Two comments are in order. I am only too well aware that bringing together in one volume, papers on the same or very similar subjects may from time to time give the reader a déjà vu sensation. This could have been forestalled by drasti-

x

Preface

cally rewriting or deleting parts of the papers concerned. I have decided not to do this and present the papers as published (minor editorial changes apart). The purpose, after all, was not to produce a new book about the law of armed conflict but a volume containing papers that had (or, in rare instances, had not) seen the light before. The other comment concerns the structure of most of my papers. I was educated in the civil law tradition, with a heavy accent on the written law and its history. Whereas my Dutch domestic law training involved going back to Roman and Germanic law origins, in my work on IHL the second half of the nineteenth century has come to figure as my starting-point. I have always been, and remain, convinced of the need to be aware of, and honour, the element of historical continuity in the “reaffirmation and development” of the laws of war. It behoves me, finally, to thank all those who granted me permission to republish papers they had published earlier. And a special word of gratitude goes to Brill Academic Publishers and to Lindy Melman in particular, for publishing this book as the harvest of a 35-year period of writing. It was a great pleasure to co-operate with her throughout the period of its actual production. FK Wassenaar

PART 1 warfare: the actors, the law

Chapter 1 The Setting*

1 The Theatre Imagine a huge theatre: outside, posters indicate that the play “International Affairs” is being performed. It is a very successful play and has been running in the same theatre for years – as knowledgeable people at the entrance are eager to inform the newcomer, perhaps even since the Peace of Westphalia. Once inside, our newcomer is overwhelmed by the sheer immensity of the stage and the complexity of the spectacle. He observes a great turmoil of actors of all shapes, sizes and colours, who are moving about in all directions; some of them are shouting, gesticulating wildly, brandishing weapons in the face of apparent opponents, or even engaging them in outright combat; others can be seen crouching in dark corners where they whisper conspiratorially, whilst others again sit immaculately dressed at highly polished round tables, with a microphone and a little flag in front of each of them. As a general impression, it strikes the eye how much violence is going on among the actors, sometimes in sudden outbursts that subside almost as soon as they started, at other times as an apparently permanent feature of long drawn-out conflicts. After a while, the onlooker becomes aware that the stage accommodates not one but a great many more or less separate plays. They are being performed simultaneously, with many of the actors having a part to play in any number of these separate plays. One actor may be performing a variety of roles in different plays at the same time, and one notes with dismay that these roles are often enough remarkably contradictory if not mutually irreconcilable. As if this were not enough, the set of characters involved in each particular play tends to change with time, as new players join the set (without necessarily giving up their parts in other plays) while other actors abandon a role for a more profitable one elsewhere, or, rather less respectably, are more or less forcefully removed from the set. At first, the spectacle leaves one utterly confused: the play called “International Affairs”, so one feels, is more thoroughly chaotic than anything we could ever have imagined. After a while, the chaos becomes less total, and the actors less

*

Published earlier as Chapter I of Arms, Armaments and International Law, 191 Recueil des Cours (1985-II) pp. 187-341, Hague Academy of International Law, 1986.

4

Chapter 1

independent, than the initial impression seemed to indicate. One notes an intricate web of more or less clearly visible threads, linking all the actors on the stage and thus creating a situation best described as “interdependence”. Moreover, the longer one observes the spectacle, the more certain more or less constant patterns of behaviour are discerned, apparently in application of generally accepted standards; and at other moments one notes how formal arrangements are being drawn up among groups of actors, apparently designed to regulate their conduct with respect to particular situations. Look around you, at the rest of the public filling the house. It is an immense crowd, and growing every minute: it is the millions and millions of other individuals who together with us constitute the world population, or mankind. In actual fact, these people are what the play on the stage is all about. It comes therefore as something of a surprise that they are not to be found among the actors on the stage and obviously have to be content with a passive position as onlookers. At times, though, like in modern theatre, groups of individuals may be seen to be drawn into the action, especially when it becomes violent – and as noted earlier, this happens with alarming frequency. And the actors – who are they, do we recognize any of them? One thing is immediately apparent: they are a remarkably disparate set of characters indeed. As we entered the theatre with the specific purpose to study the subject of arms and armaments in international law, our attention was drawn in the first place by those actors who carry or actually use weapons. No doubt they contribute considerably to the liveliness of the show; equally unmistakably, they make it a more risky affair, both for themselves, their co-actors, and the public.One group of weapon-bearing actors appears to be particularly eminent: it is a group of territorially defined, generally long-lived entities, referred to as “States”. They make themselves conspicuous by shouting incessantly that they are the only truly independent actors on the stage. As members of the club of weapon-bearers they are not alone, though: in this club they find themselves rubbing shoulders, so to speak, and often to their annoyance, with an ever-changing list of armed groups professing to fight for this, that, or the other cause. The latter actors, usually far more short-lived than States and unmistakably of lesser importance on the world stage, are variously labelled as insurgents, resistance fighters, liberation forces, separatists, bandits, terrorists, or any other suchlike name. This does not exhaust by far the list of categories of actors on the stage. A great many of them, and indeed their majority, do not possess weapons at all, and neither do they apparently desire to acquire these. Among the multitude of non-weapon-bearers, the tableau de la troupe has in recent times been enormously extended and enriched by the entry of an impressive procession of actors indicated as international organizations. On closer inspection, they belong to two separate categories, according as to whether they are of the governmental or nongovernmental variety. The growing list of organizations of the first or governmental type includes some such as the near universal United Nations Organization

The Setting

5

(UNO), or the World Health Organization (WHO), that cannot fail to impress by their dimensions and scope; beside these major organizations, other ones may be noticed that are far smaller or have more narrowly defined purposes, such as – to give just a few random examples – the European Organization for Nuclear Research (CERN), the International Telecommunications Satellite Organization (INTELSAT), the Organization of Petroleum Exporting Countries (OPEC), and the Conference on Disarmament (CD). Then, besides the governmental organizations, there is the even longer and more rapidly growing list of non-governmental organizations; it includes such prestigious names as the International Committee of the Red Cross (ICRC), Amnesty International, and the Stockholm International Peace Research Institute (SIPRI). Although a few of these international organizations, both of the governmental and non-governmental type, will be mentioned in subsequent chapters, they will not as a class hold pride of place in our story. The explanation is simple: among all the actors on the stage, they are the ones least prone to wielding the axe. In our piece, the star part remains therefore reserved for the actors described earlier, who habitually carry weapons or take up arms for some cause; and most prominent among these candidates for stardom are the States. 2 The Main Actors: The States Let us have a somewhat closer look at these centres of territorially defined power called States. It strikes the eye that the term encompasses entities which from a purely factual point of view are more conspicuous for their dissimilarities than for their similarities. Thus, if one only pays attention to factors such as size and power, it may surprise one to find besides a long list of very small “miniStates” such as Barbados, Botswana, Fiji and Liechtenstein, other entities that are quite colossal, such as Brazil, China, the Soviet Union and the United States of America. While this may provide one with much food for thought and the political scientist may never get over his wonder, the international lawyer must learn to accept, no matter how reluctantly, that all these entities called “States”, in spite of their glaring dissimilarities, are recognized as equal in principle and therefore as belonging in one and the same category. What about their claim to independence? Apparently, this is no rash, totally unfounded claim: among all actors on the world stage, States stand out as the only ones whom the law recognizes as independent masters of their own affairs, not subject to any superior authority. They are referred to as equal members of the international community, their territorial integrity and political independence are stated to be inviolable, theirs is the inherent right of self-defence; they alone, in short, enjoy the rights inherent in full sovereignty. 1

UN Charter, Arts. 2(1), 51; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the

6

Chapter 1

To what extent this asserted independence and full sovereignty provide a true reflection of the actual state of affairs is a question that may be left unanswered. Allusion was made already to the innumerable ties that link States both among themselves and with other actors on the stage of world affairs, and to the standards they respect and arrangements they conclude in the conduct of their international affairs. All of this unmistakably amounts to as many restraints on their asserted freedom of action. Reference was also made to the United Nations, as the single most truly universal international organization in existence. But – it has been said a thousand times and yet needs to be repeated here once again: neither the United Nations nor any other international organization has acquired a status even remotely resembling that of a world government and, hence, of sovereignty. Both the United Nations Charter and a long series of resolutions emanating from its main organs do not cease to insist that States are sovereign – and that the United Nations, by implication, are not. In particular, although one of its main organs, the Security Council, holds powers that are connected with the use of force, even the system of collective security as established by the Charter has never purported to deprive the States of their right to maintain armed forces (a theme which we shall develop somewhat further shortly). And this right logically includes the right to acquire and deploy weapons – as States have done at all times and are doing to the present day, for a wide variety of purposes. 3

Purposes of Armaments

Let us look briefly at these diverse purposes inducing States to acquire armaments. Without any attempt at exhaustive description, two sets of purposes may be distinguished at the outset: those connected with the internal affairs of the State, and those connected with its international affairs. It should be immediately added that this distinction may become blurred in practice, e.g., when a display of armed force against internal opposition finds forces coming from the exterior crossing its path. The reasons why a State may wish to acquire and deploy weapons in connection with its internal affairs cover a wide range of needs, from the purely ceremonial (think of events like “changing the guard” or “trooping the colour”) to the desire to emphasize the national identity or protect the unity of the nation, not to mention other more down-to-earth reasons such as the desire of a governing elite to maintain its power position in the face of a determined opposition or revolutionary movement. For any of these reasons, States are found to maintain organizations under various names, such as police forces, security forces, paramilitary forces, or armed Charter of the United Nations (Annex to UNGA res. 2625 (XXV), adopted 24 Oct. 1970): “The principle of sovereign equality of States”.

The Setting

7

forces. As far as international law is concerned, the names by which these organizations are indicated are immaterial: the problems potentially attending their modus operandi and use of weapons in respect of internal events are the same in all cases, and may be classed under such headings as constitutional law, criminal law, human rights law or, as the case may be, international humanitarian law applicable in internal armed conflicts. Turning next to the externally oriented acquisition and utilization of weapons, it is not difficult to distinguish a similarly broad range of purposes. There is, first and least dangerous of all, the ceremonial firing of guns as a salute to a foreign Head of State. Always on the ceremonial level, we find the visit a warship pays to a foreign port, perhaps to contribute by its presence to the pomp and circumstance of an anniversary being celebrated in the foreign country. Here some caution is already required, though: an ostensibly entirely peaceful presence in port may in reality have a totally different character. Quite conceivably, the visit is in effect designed to give a demonstration of strength and thereby bring pressure to bear on the authorities of the country concerned. Suchlike purposes may of course be pursued with an appearance of other branches of the armed forces as well. Even the ostensibly purely ceremonial grand parade, held in the capital of the State on national day, may serve the purpose of demonstrating the redoubtable strength of the country and thereby discouraging other States from any rash behaviour. Besides ceremony, political pressure and deterrence, there is, last but not least, the protection of the State’s interests and those of its nationals. Examples of this purpose abound: one may think of the naval or air patrol protecting the fishery interests of the State in its territorial sea or exclusive economic zone, or of a right of visit and search being exercised in a contiguous zone in order to prevent smuggling or unlawful entry; or, again, to cite a famous instance, of the passage of a few warships through an international strait to preserve the right of innocent passage. More often than not States confine themselves to such a simple and relatively harmless display of their weapons on the world stage, without so much as a shot fired. Unfortunately, this is not the whole story: time and again, now this, now that State takes recourse to a more active use of its weapons, in order to forcefully pursue given political ends. Examples of such political ends, as evidenced by State practice, include the acquisition of territory, support to a separatist movement in a foreign country, or even the outright elimination of a foreign regime. Then again, the other way round, the task on hand may be the defence of the country against foreign invaders. No matter how named, any of these modes of actual use of weapons may immediately or ultimately involve a State in war. Obviously, it is events of this type which more than anything else result in large numbers of the public in the theatre losing their status as peaceful onlookers and 2

The Corfu Channel case, ICJ Reports 1949, p. 4.

8

Chapter 1

finding themselves dragged onto the stage as participants in the deadly game called war. Two points should be noted. First, the dividing line between display and actual use of weapons may be very thin in some cases. When a State contracts a formidable army near the border with another State and accompanies this manoeuvre with insistent demands for a change of policy of the latter State, this display of arms may perhaps, technically speaking, amount to no more than a demonstration or at most a threat of force. Yet when one looks at the effect, this mode of acting may be hard to distinguish from the actual transgression of the border or the march on the capital: in either case, it is the deployment of overwhelming military power which entails the desired result. The other point is that this brief and necessarily incomplete description of possible uses of weapons was merely meant to serve as a factual basis for our discussion of armaments and international law; quite obviously it had no bearing whatsoever on the question of the legality or illegality of such modes of use. Needless to say, rules of international law have come to curb States in their freedom of action where the use of armed force is concerned: e.g., rules limiting recourse to force to recover contract debts or making outright recourse to war more difficult; a contractual agreement mutually to renounce “recourse to war for the solution of international controversies” and, finally, the rule in Article 2(4) of the Charter of the United Nations, which for all practical purposes outlaws the threat or use of force in inter-State relations. 4

Collective Security

Article 2(4), laying down that force may not be threatened or used “against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”, opens a series of provisions establishing the Charter system of collective security. Let us assume for a moment that this system had become entirely effective and remained so these last 40 years: would this have affected the proneness of States to acquire weapons to any significant extent? The answer to this question is probably a qualified “yes”. Admittedly, even under that system the Security Council would not have acquired its own armed forces: rather, according to Article 43 of the Charter, it would be capable, whenever “necessary for the purpose of maintaining peace and security”, to call on armed forces held available by member States in accordance with special agreements, negotiated and concluded between them and the 3 4 5

Hague Convention II on the Limitation of the Employment of Force for the Recovery of Contract Debts, of 1907 (the so-called Porter Convention). Art. 12 of the Covenant of the League of Nations. General Treaty for the Renunciation of War as an Instrument of National Policy, of 1928 (the so-called Briand-Kellogg Pact).

The Setting

9

Security Council for that purpose. And its capacity to discharge its functions would be enhanced by the active assistance of the Military Staff Committee, established under Article 47 and consisting of the Chiefs of Staff of the permanent members of the Security Council – or their representatives, theArticle adds somewhat lamely, recognizing that the Chiefs themselves could hardly be expected to be permanently present at United Nations Headquarters. But undoubtedly, in times of emergency, we would see them rushing to New York, eager to throw in their full weight for the maintenance or restoration of international peace and security. Doubtless, moreover, the Military Staff Committee would over the last 40 years, in accordance with Article 47(1), have actively advised and assisted the Security Council “on all questions relating to … the regulation of armaments, and possible disarmament.” This would in turn have enabled the Security Council, in fulfilment of its mandate under Article 26, to formulate “plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.” Again, the overall improvement of the situation on the world stage would certainly have resulted in a lesser need for armaments on the part of member States. But it should be emphasized that even under the assumption of a Charter system of collective security realized to perfection, and therefore entirely effective, the system is and remains based on the existence of national armed forces. Besides being at the disposal of the Security Council, another manner in which such national armed forces could be legitimately used would always be, in terms of Article 51 of the Charter, “individual or collective self-defence if an armed attack occurs … until the Security Council has taken measures necessary to maintain international peace and security.” Even with the best conceivable preparations and the most effective assistance on the part of the Military Staff Committee, there would probably be a gap of a day or so between the moment a State is attacked and the moment the measures of the Security Council “to maintain international peace and security” become operational. To fill that gap in their external security States might conceivably still wish to maintain adequate armed forces. Then, besides external security there would have remained the requirements of internal security. At the time the United Nations Organization was established, the international community consisted of some 50 to 60 States. Quite a few of these States had considerable “law and order” problems within their territories: thus, the Netherlands in the Dutch East Indies, France in its overseas departments, the United Kingdom both overseas and in Northern Ireland, and so on and so forth. Despite recognition of the principle of self-determination in the Charter, such problems were regarded as internal affairs by the States concerned, and they would therefore certainly have maintained and utilized important military effectives to deal with the situation.

10

Chapter 1

In the course of the decolonization process as it actually occurred the onetime colonies and other non-self-goveming territories were gradually recognized to possess a status of their own, and “wars of national liberation” came to be recognized as international armed conflicts in the sense of the Geneva Conventions of 1949 and the Additional Protocols thereto of 1977. Would it not have been extremely interesting to see our hypothetical, more perfectly organized international community cope with such a process of violent change! And there would have been other extremely difficult processes awaiting it, such as (to mention only one striking example) the creation of the State of Israel. Regrettably, all this remains idle speculation as the international community failed to bring the Charter system of collective security into full effect. As another lecturer, Dr. Herndl, will treat in detail the “Role, Functions and Procedure of the Security Council”, I need not pursue this matter any further. In the context of these lectures, it suffices to take note of this failure on the part of the world community and, with that, the revival (or should one say the survival) of the need for States to provide for their own security in a less than totally safe world. 5

National Security

States have continued to make this kind of provision for bad times after as before the establishment of the United Nations Organization: they never stopped acquiring and displaying weapons, as the implements their armed forces need, or say they need, in order to meet the challenges of the present or the future. Now, one aspect where the legally equal States are conspicuously unequal in fact is in their military capacities. While one State, possibly an island State located peacefully somewhere in the middle of the Pacific Ocean, may have no more than a minuscule, lightly armed police force, other States, not so favourably situated, spend tremendous effort and resources on the build-up and constant modernization of ever larger and more powerful armed forces equipped with every available weapon, from the foot-soldier’s rifle and hand-grenade to the intercontinental ballistic missile carrying a number of independently targetable re-entry vehicles, each equipped with a nuclear warhead. 6

7

Declaration on Principles (supra, note 1): “The principle of equal rights and selfdetermination of peoples”, para. 6: “The territory of a colony or other non-selfgoverning territory has, under the Charter, a status separate and distinct from the territory of the State administering it.” This recognition came with the adoption of Art. 1(4) of the Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of the Victims of International Armed Conflicts; the Protocol was adopted in Geneva on 8 June 1977, and opened for signature in Berne on 12 Dec. 1977. For text see: Schindler & Toman, The Laws of Armed Conflicts, 2nd ed. (1981) p. 619; Roberts & Guelff, Documents on the Laws of War (1982) p. 387. On the question of scope of application see further the relevant paragraphs in Chapter V.

The Setting

11

One method by which States may seek to place their perceived security requirements in a rational setting is by matching, individually or in alliance with others, the military power of certain other States or groups of States. While such a “balance of power” policy may have been applied with a modicum of success in nineteenth-century Europe, it has become far more difficult, if not impossible to achieve since. The number of State actors has considerably increased; they are spread over a much enlarged world stage, and they are far more diverse than their predecessors of the previous century in a great many respects, not least in military capacities. Many of the newcomers are still fairly unstable internally. There are, moreover, those other firebrands: the rebels, the insurgents, and their likes, who at least temporarily claim a place among the weapon-bearing actors on the stage. In these circumstances, how should a State calculate its military needs? Then, suppose State A might succeed in achieving a balance of power with State B: will this not have the unfortunate effect of disturbing the previously existing balance between States A and C? Indeed, in many cases this effect appears hard to avoid. Now, to the extent that C attaches importance to the maintenance of this particular balance, it will attempt to restore it, and in most cases this will mean an increase in its military power. This may in turn disturb the balance as it existed between C and D – and so on and so forth. Put differently, if all States took the idea of a balance of power literally and continued to seek such a balance with all other States on a basis of sophisticated calculations, the arms race would predictably be a far more rapid and widespread process than it now already is said to be. It is therefore perhaps as well that States, despite their natural concern about national security, probably do not take the idea of a balance of power quite so literally. The fact remains, however, that in specific bilateral relations the idea of such a balance plays a very important role. One need not only think here of the action-reaction process that appears to govern the relations between the nuclear super-powers, with the introduction of new missiles or strategies on one side immediately being matched by comparable developments on the other side. Also on the relatively more modest scale of conventional weaponry, one observes how some States, and not the major ones alone, are constantly on the watch for even the slightest change in the armament of certain other States whose policies they perceive as threatening. We thus have to acknowledge that although the establishment and buildup of military power may effectuate an increase in the security of a State – or at any rate may diminish its feelings of insecurity – it may at the same time entail a measure of insecurity, or at least of perceived insecurity, on the part of other States. In the discussions accompanying this entire process, these feelings of real or alleged insecurity are sometimes given expression in the shape of the claim that all States have a right to “equal security”. Theoretically this may appear an absolutely impeccable construction: after all, States are equal before the law and therefore should have equal rights, and this should certainly apply where a matter

12

Chapter 1

as vital as their national security is concerned. On the level of practical politics, however, it appears hard to see how in present conditions this pretended right could ever be realized on a world-wide scale. Should one think here of a computer programme, into which would be fed all the relevant data about all the States in the world, including the measure in which they trust or distrust each other? And whose programme would be accepted by the entire world community, so that the outcome of its calculations would be binding on all States and, once almost automatically implemented, would lead to that blissful state of “equal security for all”? Once again, one fails to see how this could ever work. This is to say that those who claim loudest the right probably have nothing else in mind but a legitimation of their own military build-up in relation to some few States, while at the same time completely disregarding the equally legitimate security interests of all other States. Always on the plane of practical politics, our problems are compounded by the observable fact that States do not always confine themselves to pursuing a “balance of power” with this or the other State by merely matching the military power of that State. Often enough they apparently seek superiority over certain States, whether in respect of particular aspects of military power (say: superiority in the air or at sea) or as a general proposition. If this is their aim, or if the other side perceives it as such, an “arms race” becomes very probable if not unavoidable. Undesirable though this may be, the world has time and again witnessed this process of reciprocal military build-up spiralling to ever more alarming heights. 6

An Absolute Ceiling?

How high can the pile of armaments rise without hitting an ultimate ceiling? This question may be contemplated from more than one angle. One might endeavour to determine mathematically where the risk posed by an ongoing arms race becomes unacceptable, or the focus might be on the ethical aspects or the economic consequences of such an arms race. For our purposes, the relevant question is whether contemporary general international law contains a standard which puts an absolute ceiling to the permissible level of armaments. One could envision such a standard in two distinct forms: either in the shape of a mathematical formula (“never more than a thousand guns for any single State”) or in abstract, more normative terms (“never so many arms for any single State that world peace is endangered, or the survival of mankind is seriously, or immediately, threatened”, or any comparable phrase). One is reminded here of what may have been the only serious effort ever made to set such standards. The occasion was the almost forgotten Disarmament Conference of the League of Nations, held in Geneva from 1932 to 1934. Its goal was to arrive at a calculated reduction of the armaments of all (significant) States 8

On the League of Nations Disarmament Conference, see also Chapters II and VI.

The Setting

13

and the abolishment of certain classes of weapon on account of their particularly dangerous character. In the end, with the tragic breakdown of the Conference, all the efforts came to naught; but this cannot detract from the fact that the world was probably never closer to fixing an absolute ceiling to the level of armaments it was prepared to tolerate. As for the present, while an absolute standard either of the mathematical or normative type remains entirely conceivable in theory, it appears that as a matter of actual practice the “international community of States as a whole” has not reached the stage where any such standard could become accepted as a norm of general international law. This negative conclusion is doubtless true for the mathematical formula. And as far as the form-of-words type standard is concerned, it is beyond doubt that the present level of armaments does not only threaten world peace – as weapons have always done – but the survival of mankind as well. While many States evidently regard this situation as undesirable and probably even in the long run untenable (so that “something ought to be done about it”), evidence is lacking that the major groups of States, the most directly interested ones included, would regard the activities by which States maintain or aggravate this undesirable situation as so many unjustifiable infractions of an existing absolute standard of international law. In discussions about these questions one often notes an understandable tendency to concentrate exclusively on nuclear weapons, as the weapons that are widely held to pose a graver threat to humanity than any other type of weapon has ever done before. We shall revert to the special problems involved in the possible use of nuclear weapons and other so-called weapons of mass destruction in Chapter IV, and these weapons shall be central again in Chapter VI on disarmament law. In the meantime, the point should be emphasized that it would be wrong to focus one’s attention on those weapons alone. This is not to deny their particularly terrifying character: it is rather that other, so-called conventional weapons are found in the armaments of virtually all States. And this is not all: conventional weapons are put to actual use with alarming frequency and often particularly horrifying effects in the long series of armed conflicts that characterize our time. This gives us every reason to turn our attention first to the general rules of international law relating to the acquisition, deployment and use of all weapons, large and small. We shall find that States have over the years accepted a number of such rules. Whether in the shape of vague principles or precise prohibitions,

9

The phrase utilized in Art. 53 of the Vienna Convention on the Law of Treaties, of 1969, to indicate the wide spectrum of States whose recognition is required to turn a rule of international law into a “peremptory norm of general international law … from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

14

Chapter 1

they curb States more or less effectively in their unqualified freedom to do as they like in the matter of armaments. In part, these rules grew in practice; for the greater part, they were consciously created as treaty law. One way or the other, they cover a wide range of issues that may be classified under several headings. Four such headings are often distinguished: jus ad bellum, jus in bello, victor’s law, and disarmament law. In the foregoing, we already made some brief remarks about jus ad bellum, i.e., the rules governing recourse to force by States in the conduct of their international relations. We shall not revert to this aspect of the matter. Jus in bello, or the “rules of international law applicable in armed conflict” we shall examine carefully and in some detail, with particular focus on the principles and rules governing wartime use of weapons. In order to gain a better understanding of these principles and rules we shall trace their historical development up to and including the lawmaking conferences of the 1970s (Chapters II-IV). In the course of this investigation we shall come across one or two instances of so-called victor’s law, or the rules the victor forces upon his vanquished adversary. Questions of scope of application and implementation of the law of armed conflict shall be broached in Chapter V. Finally, in Chapter VI, we shall go into aspects of disarmament law, notably relating to the development, production and deployment of weapons.

10

In terms of Art. 2(b) of Additional Protocol I (supra, note 7): “the rules applicable in armed conflict set forth in international agreements to which the Parties to the conflict are Parties and the generally recognized principles and rules of international law which are applicable to armed conflict.”

Chapter 2 Introduction to the Law of Warfare*

1

Armed Conflict

Violence is one of the striking features of present-day human society. This may be observed in private life, where violent attacks on the person of fellow human beings are as frequent as they are varied; it is equally true of public life, where violence occurs in all forms and at all levels of intensity, ranging from the isolated kidnapping or assassination of single individuals to such large-scale activities involving many, such as the massive bombardment, the tank battle or the siege. In this course, we will be concerned with “warfare”, a notion embracing those forms of public violence which occur in – and are characteristic of – “war”, or as it is usually styled nowadays with an even more neutral term: “armed conflict”. This may be the international armed conflict properly speaking: the conflict between States; or it may be the armed conflict not between States and occurring within the territory of a single State. The third and last possibility is that of the armed conflict waged within the territory of one State and yet, by virtue of certain additional factors, international in character. In the past, wars between States were declared. In 1907, the Second Hague Peace Conference even considered it worthwhile to lay down in a separate convention that hostilities ought not to be opened without previous and unequivocal warning, which could have the form, either, of a reasoned declaration of war, or of an ultimatum with conditional declaration of war. The Second World War duly began in September 1939 with formal declarations of war by the United Kingdom and France against the German Reich. Similar declarations of war were made in the following years of the war by many States. Thus, the Netherlands declared * 1

2

3

Published earlier as Chapter I of The Law of Warfare (1973) pp. 9-29. The spreading of terrorism in 1972 caused the UN General Assembly to take an interest in the matter. See inter alia the Draft Convention for the Prevention and Punishment of Certain Acts of Terrorism, introduced by the United States (A/C.6/ L.850, 25 Sept. 1972) and the study prepared by the Secretary-General (A/C.6/418, 2 Nov. 1972). For an explanation of this term, see: G. Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol. II: The Law of Armed Conflict (1968) p. 1. Hague Convention No. III.

16

Chapter 2

war on Japan in 1942, at a time when the Japanese armed forces had not yet opened their attack on the isles of the then Dutch East Indies. This even led to an argument on the part of defendants before the International Military Tribunal for the Far East, sitting in Tokyo after the war, that if Japan might have committed aggression, the Netherlands had done so too. This episode already provides one explanation of the unmistakable fact that declarations of war are practically out of fashion nowadays; they all too easily lead to the accusation that the State making the declaration is the aggressor. Another reason is that in many cases States (or, wider, belligerent Parties) will prefer to avoid the consequences which an express declaration of war would entail for their legal relations both with the adversary and with other States. Then, on the factual level, one realizes that, on the one hand, he who wants to commit deliberate aggression will certainly not be prepared to dispense with the element of surprise, and, on the other hand, that war may not be a sudden affair at all but may develop imperceptibly out of a situation of slowly increasing violence. For all these reasons, the present discussion shall not be confined to situations of declared war (or, on the internal level, to the comparable situation where the authorities in power recognize the state of war); it will be concerned with all situations of armed conflict, no matter how named by the Parties involved. For our purpose, “armed conflict” may be defined as a conflict involving hostilities of sufficient intensity between armed forces of opposing Parties. This definition immediately leads to an obvious question: if one does not want to rely exclusively on the subjective positions taken by the Parties to the conflict, what then is the criterion for distinguishing armed conflict from lesser forms of violence? The question dissolves into two further questions: what distinguishes the international armed conflict from the clash of arms in the international border incident or from the mere infiltration of saboteurs and terrorists? And where lies the dividing-line between the non-international armed conflict and mere internal troubles involving resort to force? There are, of course, obvious cases. Nobody will probably doubt for a moment that the Second World War and the Vietnam War were armed conflicts, or that the Paris student revolt of May 1968 did not qualify as such. For the less obvious cases, however, one will have to admit that thus far no exact, objective criterion had been found which would permit us to determine with mathematical precision that this or that situation does or does not amount to an armed conflict. The truth of the matter is that any attempt at greater precision in defining “armed conflict” will be tied up with certain more or less explicit goals of a political or other similar order. Thus, one may come across the argument that, as situation A amounts to nothing more than internal troubles, it is therefore a purely domestic affair not warranting any outside intervention nor constituting 4

Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order (1961) p. 231.

Introduction to the Law of Warfare

17

a threat to the peace. Or it may be argued, the other way round, that situation B does in fact amount to an international armed conflict and that therefore those taking part in the hostilities, when falling into enemy hands, have the right to be treated as prisoners of war. At the second session of the recent Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in Geneva in May 1972, it was very much apparent that many of the definitions proposed for non-international armed conflicts in particular were prompted by considerations of this order. It is thus evident that under existing law decision-makers have considerable latitude in qualifying situations as armed conflicts or otherwise. This does not mean that they would be completely free to label situations as they see fit, without any regard for objective criteria or obvious facts. But it does mean that especially with respect to dubious situations, such as will occur in the initial phase of most internal conflicts, they are left with a wide margin of appreciation. Who are the decision-makers in whose hands lies this power of decision in such an important matter? One can think of various actors here: the Parties to the conflict (who may, but need not, agree about its qualification), or States not directly involved in the conflict (who may have an interest in clarifying their position in respect to it, or who may want to urge the application of certain rules and procedures for its settlement or for the conduct of hostilities). Or one may think of international bodies, such as organs of the United Nations or of regional intergovernmental organizations, or an independent body such as the International Committee of the Red Cross in Geneva. The point is, though, that none of these actors, with the possible but theoretical exception of the UN Security Council, has power to decide the issue with binding effect for the other Parties too. We shall have to accept this fact, as one proof out of many of the imperfect condition of international society. Reference was made more than once in the foregoing to international and non-international armed conflicts and, more specifically, to armed conflicts between States on the one hand and, on the other, those not between States and occurring within the territory of a single State. These two types of armed con5 6

7

Report of the Conference (Geneva, 1972) para. 2.45 et seq. The ICRC has often taken the initiative in urging upon the Parties to an internal armed conflict to in fact consider it so; this on the flimsy basis of common Art. 3 of the Geneva Conventions of 1949 which provides that the ICRC “may offer its services to the Parties to the conflict.” Art. 39 of the UN Charter empowers the Security Council to determine the existence of a threat to the peace, breach of the peace or act of aggression. It seems a moot question, though, that this would include the power to decide that an international or internal situation amounts to an armed conflict, especially as the latter decision would entail totally different legal consequences (entry into operation of the law of armed conflicts) than would result from the earlier decisions.

18

Chapter 2

flict present sufficient similarities to bring them under the one heading of “armed conflict”. In either case, armed forces on both sides take part in hostilities of sufficient significance, and the methods and means of combat used are as similar as the types of victims caused and damage done. It is necessary, though, to realize that the two types of armed conflict are not so completely similar in other important respects. A first such aspect is the legal status of the Parties. In the case of an interstate armed conflict, the Parties are equal. The sovereign equality of States is one of the cornerstones of present-day international relations and international law; it is the first principle mentioned in Article 2 of the United Nations Charter, and one finds it emphasized and elaborated in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, adopted by the General Assembly without dissenting vote on 24 October 1970. In the case of a purely internal armed conflict, however, the legal status of the Parties is usually one of fundamental inequality. The authorities in power are the legitimate Government, and their acts are in defence of legitimacy; their opponents are the insurgents, whose acts will be punishable as rebellion, treason or the like under the municipal law in force. This legal inequality will only disappear to the extent that the insurgents succeed in obtaining from the legitimate Government their recognition as a government or as a belligerent Party – a rare occurrence which moreover can only be expected once the insurgents have achieved something like equality in fact. This factual element is the other aspect that should be mentioned. It has often been said that no two States are equal from a factual point of view. While this may be true, it is equally true that they are all very similar in such essential characteristics as power structure, possession of a centrally directed armed force, allegiance of the population, and possession of territory, characteristics which play an important role in the event of an interstate armed conflict. Here, again, the difference with the purely internal armed conflict is obvious. While the governmental side in principle has the disposal of the established power structure, including the regular armed forces, while it holds the territory and can claim the allegiance of the population, the insurgents have none of these advantages, that is, not until they have succeeded in consolidating their position to such a degree that they can be said to have achieved the equality in fact referred to a moment ago. In short, while the Parties to an interstate armed conflict start from a position of equality, the purely internal armed conflict is waged between parties starting from a position of inequality. This difference of fact cannot fail to be 8 9 10

As is done in the Geneva Conventions of 1949, Arts. 2 and 3. Res. 2625 (XXV). On the question of recognition of belligerency, see: Roscoe R. Oglesby, Internal War and the Search for Normative Order (1971).

Introduction to the Law of Warfare

19

reflected in the law which international society is prepared to lay down for the two situations. Obviously, the protective shell around States which is named “national sovereignty” is apt to play a far more decisive role in the event of internal armed conflicts than in case of international ones. This results in a tendency to accept less far-reaching rules for the case of internal armed conflicts than may be considered acceptable for international armed conflicts. This tendency may be strengthened further by expectations about the willingness and ability of the parties to either type of conflict to observe more or less detailed rules governing the behaviour of belligerents. It was suggested at the outset of this chapter that there exists an intermediate possibility between the purely interstate and the purely internal armed conflict, viz., the armed conflict waged within the territory of one State and yet international in character. It may be clear from the foregoing that this case will arise, first, when the insurgent party has succeeded in achieving virtual equality with the authorities in power; in that situation, the conflict becomes essentially similar to one between States. The most striking example of this type of situation is provided by the Spanish Civil War of 1937-1939. Outside intervention may be another factor internationalizing an originally internal armed conflict. Here, however, opinions are not unanimous. Some reject the very idea of this effect so completely that they do not even want to recognize it in case of direct, large-scale participation of foreign armed forces. Among those who accept the idea in principle there is a wide diversity of opinion about whether intervention on the side of the insurgents must be attributed the same effect as intervention on the side of the established authorities, and what level of involvement (ranging from mere economic aid to outright military participation) is required to achieve the internationalization of the conflict. Without going into these questions in any detail, and with all due respect for the motives prompting even the extreme points of view (motives which generally will be connected with ideas about the desirability of intervention, whether in general or with regard to a specific situation such as the war in Vietnam), it seems justified for the purposes of the present subject to attribute the aforesaid internationalizing effect to intervention taking the form of direct and significant participation 11

12

13

In the Conferences of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held at Geneva in 1971 and 1972, this tendency was apparent even in the proposals of those experts who wanted to go furthest in unifying the law applicable in armed conflicts. The Norwegian proposal for one single Protocol was divided in parts applicable to international and to non-international armed conflicts; Report of the 1971 Conference, p. 61: Doc. CE/COM II/1, 2; Report of the 1972 Conference, paras. 0.15, 5.22. See Ann van Wynen Thomas and A.J. Thomas, Jr., “International Legal Aspects of the Civil War in Spain”, in Richard A. Falk (ed.), The International Law of Civil War (1971); see also Oglesby, op. cit. See Report of the 1972 Conference of Government Experts, para. 2.342 et seq.

20

Chapter 2

of foreign armed forces, as that will incontestably deprive the armed conflict of its original character as a purely intestine affair. It is asserted from many sides nowadays that there is a third category of noninterstate yet international armed conflicts, viz., wars of self-determination or national liberation. Those who advocate this idea, and the many UN resolutions they can quote in their support, envisage here in particular the armed struggles against colonialism and racism. Their arguments are that self-determination has developed since 1945 into an unquestionable right, that colonialism and racism are contrary to the very principles of the United Nations, that territories under colonial or racist domination have a separate status (as has been expressly recognized in the quoted UNGA Declaration on Friendly Relations) and that the colonial and racist regimes must in truth be regarded as illegal occupants and virtual aggressors. The present author does not for a moment doubt that the struggles in question, and the situations underlying them, are matters of international concern. It is also evident that the struggles, though taking place within a single territory, involve groups of persons which on no account can be considered as one nation. Here, however, the parallel with interstate armed conflicts comes to an end. At any rate in its initial phase, the struggle for self-determination will present at best the factual characteristics of an internal armed conflict, that is, if it qualifies as an armed conflict at all. In this light, it seems of questionable usefulness to stick a label of “international armed conflict” on these struggles as long as they have not acquired the characteristics thereof, that is, as long as there is no question, either, of anything like equality in fact between the Parties, nor of any significant outside participation. To give a few examples, the struggle of the Indonesian people against the Netherlands, in the years immediately following the Second World War, can be said to have constituted an international armed conflict virtually from the beginning, and the Algerian war likewise must be regarded as an international armed conflict, at all events during its later phases. But to characterize the situation in Angola as an international armed conflict might in 1972 still be somewhat premature. Be this as it may, our conclusion is that there exists a category of armed conflicts which, although not interstate, is international in character. This obviously complicates the picture, if only because the existing international legal instruments either expressly or implicitly are based on a dichotomous distinction between purely interstate and purely internal armed conflicts. The absence of an international authority having power to determine with binding force the character of a given conflict is particularly conspicuous here.

14

Ibid., paras. 2.35 et seq., 4.222; and see Georges Abi-Saab, “Wars of National Liberation and the Laws of War”, in Annales d’Etudes Internationales (1972) p. 73.

Introduction to the Law of Warfare

21

2 Warfare After the above brief expose of the various problems inherent in the notion of armed conflict, we may next focus our attention on the concept of warfare, as the type of activity characteristic of armed conflict. It was pointed out at the outset of this chapter that warfare embraces resort to violence. Indeed, this is the most conspicuous aspect of warfare and the one most likely to stick in the memory. European history is replete with the stories of famous battles fought on land, at sea and, in recent history, in the air. And this is not merely a matter of the interests of historians: the very idea of armed conflict implies a prominent place for the military operations of the armed forces. It should be realized, though, that warfare is not confined to this aspect of military operations. Another equally traditional component of warfare consists in the logistical support provided by the population. This factor was as important in the naval wars waged between the Dutch and the British in the 17th century as it was in a war like the Second World War. It is true however that the industrial revolution of the 19th and 20th centuries has given added weight to the role which industry plays in warfare. One can think here of industrial capacity in terms of production of arms and ammunition, of complete weapon systems such as war planes or tanks, and of other indispensable goods such as fuel. Another modality of industrial warfare may be seen in the perfection of existing, and the development of new, means of combat. It must be emphasized once again that this is no novel role of industry; it has merely assumed far greater proportions in our days than ever before. Add to this the enormously increased measure of Government control of wartime industrial activities, and it will be agreed that this aspect of warfare can without exaggeration be referred to as “industrial warfare”. It should be pointed out that this notion is wider than the often-heard term of “technological warfare”; the latter term, coined especially in reaction to certain features of the war in Vietnam, envisages in particular the perfection and development of weapons and other means of combat. Economic warfare is an even wider notion, though narrowly connected with that of industrial warfare. The term is normally used to indicate all those measures the aim of which is to impair the economic capacity of the adversary, especially in so far as this affects his capacity to sustain the war effort. Economic warfare can consist in measures aimed at cutting off the supply, e.g., of arms and other items of direct military importance, or of raw materials and other goods indispensable for the war industry. It can assume the form of attacking the economic and financial position of the adversary on foreign markets. It embraces such military operations as direct attacks on the enemy war industry or a blockade of the enemy harbours or coasts. It is, in short, a broad concept encompassing 15

On the developments in war and warfare, see: Quincy Wright, A Study of War, 2nd ed. (1965).

22

Chapter 2

a whole range of possible steps, and it is an important element in any protracted armed conflict. While economic warfare did not decide the Second World War, it contributed considerably to its outcome. Especially such military operations as attacks on industrial targets and blockade tend to assume a different significance as well: they may easily become elements in what is indicated as psychological warfare. This, again, is far from being a novel concept. In the era when Romans and Teutons fought their savage battles, it was customary for the barbaric Teutons to accompany their actions with great clamour of voices and to give themselves a terrifying look with the aid of bull’s horns or similar attributes. Also more gentle methods of psychological warfare, such as the ultimatum and other forms of pressure, or bribery, have been known throughout history. None of these methods has so far lost its topicality. One aspect which unfortunately has acquired increased significance in recent times consists in the tendency to bring pressure to bear on the enemy civilian population with the aim (or in the hope) of thus influencing the course of the war. The bombardment of London, in 1940, had this aim of bringing the point home to the British people, and thus indirectly to the British Government, that it would be better to abandon the war. Likewise, the bombardments of Hamburg and Dresden, and the nuclear attacks on Hiroshima and Nagasaki, had among their objects to break the morale of the civilian population. Again, the recent mining of Hai Phong and other harbours in North Vietnam may well have had psychological aims first of all. We shall have reason to return to the more vehement modalities of psychological warfare when we discuss the protection of the civilian population. At this juncture, it may suffice to note that psychological warfare, even in its more brutal form, is certainly not a monopoly of the highly industrialized Parties to such gigantic armed conflicts as the Second World War. Indeed, it is a regular feature of all those armed conflicts waged in whole or in part in the form of a guerrilla. The importance of guerrilla warfare as an aspect – and even a characteristic – of many recent armed conflicts is emphasized so incessantly nowadays that it may seem hardly necessary for me to join in that chorus. Some observations may, however, be useful here. First, guerrilla warfare is not a new technique. Like other modes of waging war, it has been applied in many armed conflicts throughout history. Then, guerrilla warfare may, but need not be, tied up with certain specific political situations, such as revolution or national liberation. Obviously, the notion of guerrilla warfare has gained great repute as a consequence of the 16 17

18

W.N. Medlicott, The Economic Blockade, Vol. II (1959) p. 631. See, e.g., Julius Stone, Legal Controls of International Conflict, 2nd impression, revised (1959) p. 629; McDougal and Feliciano, op cit. note 4, pp. 611-614, 654-656. On the bombardment of London in particular, see the present author’s Belligerent Reprisals (1971) p. 161 et seq. See, e.g., Friedrich August Freiherr von der Heydte, Der moderne Kleinkrieg (1972).

Introduction to the Law of Warfare

23

communist revolutions in China and Cuba, the liberation war in Algeria, and similar events. Yet, the same techniques had been applied during the Second World War by resistance fighters operating in the occupied territory of many European countries and by commandos and other special forces carrying out their pin-prick missions in territory under enemy control, and in more recent times they were used by the Indonesian infiltrators into Dutch Guinea, as it then was; by the Palestinian guerrilla fighters infiltrating into Israel-held territory, and so on. In other words, guerrilla warfare in the sense it is used here is a widespread technique, which may be applied in more or less favourable conditions, but the essence of which as far as military operations are concerned always consists in a sophisticated use of the elements of mobility, dispersion and surprise in combating superior enemy forces. These hit-and-run tactics will moreover normally be combined with acts of sabotage and terror, the small-scale versions of economic and psychological warfare. Traditionally, war was waged on land and at sea. Land warfare included in the main the battle between opposing armies, the siege of defended localities, and occupation of enemy territory. The main forms of warfare at sea were the naval battle and the seizure in prize of merchant vessels and contraband, with the bombardment of objectives on the shore as an occasional side-activity. This traditional pattern may seem to us rustic and even comparatively harmless. But let there be no misunderstanding: wars in those days often were particularly savage and cruel affairs, and this not only in so far as the opposing armies were concerned, but for the civilian populations as well. Yet, the development of aviation has added a dimension to warfare which in reality has modified its physiognomy. The question is not that the battles between armies or navies have now become complicated by the participation of the respective air forces, nor even that operations of economic warfare against such targets as merchant vessels took on a different aspect when the bomber took over the task of the man-of-war. The real and indeed fundamental change lies in that the whole of the enemy territory now has been brought within the reach of military operations. This means, first of all, that enemy military installations, troop concentrations and similar targets can be attacked wherever they are found. It means, furthermore, that also industrial objectives can be so attacked; and, as we have seen that in industrialized countries the importance of industry for the war effort has increased enormously, the twofold conclusion lies at hand that the number of industrial objects worth attacking must be high and that these objects are likely to be spread over the territory, that is, among the population. Here, indeed, lies the crux of the matter; the development of air warfare has brought this essential change that the civilian population is now suffering from the scourge of war in a measure out of comparison greater than ever before. 19

As is well-known, the ratio between belligerent and civilian war victims has come to be reversed in the course of this century.

24

Chapter 2

Sea warfare, which was referred to a moment ago as one of the traditional dimensions of warfare, shall not be discussed here. It is a highly technical and complicated domain, especially in its aspect of economic warfare, and therefore lends itself best to separate treatment. The only aspect of the use of naval power that will be encompassed in our argument is the aspect which from the point of view of the navy will always appear slightly out of the ordinary, viz., naval bombardment of objectives on land. A final aspect of warfare to be mentioned in this introductory part is the question of its goals. This question can be discussed at different levels. There is the immediate, short-range goal of a tactical operation: the elimination of an enemy unit, the interdiction of the use of a road or bridge, and so on. Such tactical goals generally will fit into a larger and more long-range plan, which contains the strategic goals: to get hold of certain key positions or certain parts of the enemy territory, to gain air superiority, to put a stop to the enemy energy production, and so on. The strategic goals of warfare in its military sense are still technical military goals. In the same way one may refer to the strategic goals of industrial or of economic warfare, as the technical but long-range goals proper to those modalities of warfare. These tactical and strategic goals are governed, if all is well, by the political goals of warfare: the reasons why the war is waged, the aims sought by the political leaders at the highest level. As history shows, these political goals may range from a simple frontier readjustment to the very annihilation of the enemy State. Ideology has often played an important role in their formulation. This was evident, for instance, in the Second World War, where the dominant political goal was the annihilation of the Nazi regime; a goal which led the United States to demand unconditional surrender, as no conditions could be accepted from such an infamous regime. This demand had the effect of prolonging the war even after Germany had for all practical purposes lost it. Similar influences of ideology may be observed where the political goals of warfare are defined in terms of war against the “communists”, the “imperialists”, the “Zionists”, and so forth. While such language may have the effect of providing the population with a motivation for supporting the war effort which it would otherwise lack, it also tends to lead to increased cruelty and ruthlessness in waging the war. The very idea of total war, in the sense of war waged against the whole of the enemy population, stems from such ideological considerations rather than from any rational weighing of the political or military interests involved. It seems therefore important to fight the influence of ideology on the formulation of the political goals of warfare and to urge that these be defined in terms of the political interests actually at stake. Armed conflict, it should be realized, is bad enough as it is; even “limited war” is war in the first place.

20

See, e.g., C. John Colombos, The International Law of the Sea, 7th ed. (1968).

Introduction to the Law of Warfare

25

While the political goals of warfare may differ widely, certain goals have been outlawed under modern international law. This is true of the conquest of the whole or part of another State’s territory; it is by now an accepted rule that such territorial changes cannot be recognized. It remains to be seen whether this rule will prove to be a hundred percent effective in the event of a State making territorial conquests nonetheless, or whether it will then merely have the effect of postponing recognition of the new territorial situation. Be this as it may, it is an established fact that conquest has become an illegitimate goal of warfare. The same holds good for a goal like the extermination of an enemy population, a type of activity I need not comment upon any further. Even taking into account these limitations, the range of possible political goals of warfare is still immensely wide. Perhaps it may be possible, though, to indicate a common denominator of what may be regarded as legitimate goals of warfare. I refer to an international instrument of more than a century ago, the Declaration of St. Petersburg of 1868, where it is stated in the preamble that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.” This, indeed, is the crux of the matter; whatever goals may be pursued with the instrumentality of armed conflict, the very road one has chosen implies that what one is up against are the military forces of the enemy; those, and only those, are the forces one may legitimately endeavour to overcome. 3

Law of Armed Conflict, Law of Warfare

With this discussion of legitimate goals we have already touched upon a first normative aspect of armed conflict and of warfare in particular. We shall now broach this normative side of our subject in a more systematic manner. Multiform though the phenomenon of armed conflict may be, it presents certain characteristic features which historically have allowed the development of a specific part of international law especially devoted to it. Traditionally named the law of war, this branch of international law nowadays is usually referred to as the law of armed conflict. For a long time, the law of armed conflict has developed as customary law. It is only in comparatively recent times, since the second half of the 19th century, that the multilateral treaty became an important instrument in this development. The Declaration of St. Petersburg of 1868, which I mentioned a moment ago and to which I shall return again at a later stage, is in fact one of the oldest of these treaties. Even older, and of greater importance for the development of the law 21 22 23

Declaration on Principles (etc.), GA Res. 2625 (XXV). See also Michael Akehurst, A Modern Introduction to International Law (1970) p. 188. De Martens, N.R.G. Vol. 18, p. 474.

26

Chapter 2

of armed conflict, is the Geneva Convention of 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field. This Convention, in fact, marked the beginning of a movement which led to the construction, in 1949, of the grandiose edifice of the four existing Geneva Conventions. The law of armed conflict in its totality covers a wide range of subjects. There are, for one thing, the relations between the Parties to the conflict. The existing diplomatic relations normally will be severed; what happens to the personnel, and to the diplomatic premises? What is the fate of the treaty relations which existed between the Parties; are they terminated once and for all or do they revive after the war, or do they simply continue? How can normal relations be restored between the Parties after the hostilities have come to an end; is a peace treaty necessary in all cases? What are the effects of an armistice? What are the powers of a belligerent Party with respect to enemy private property found in its territory: is he entitled to confiscate this immediately, or merely to sequestrate it for the duration of the conflict? And what should happen with property so sequestrated after the war? Then, there are the relations between the Parties to the conflict and States not taking part in it, the neutral States of traditional international law. To what extent will these non-involved States have to tolerate their interests being impaired as a result of the activities of the Parties to the conflict? What are the rights, what the obligations of a neutral State? What is the effect on all this of the Charter of the United Nations with its system of collective security? As non-international armed conflicts in particular are concerned, what are the relations between the insurgent Party and other States? When is recognition of insurgency justified, and what are its effects? Who is internationally responsible for damage done by the insurgent Party? And so on and so forth. We are not concerned here with these questions but with part of yet another section of the law of armed conflict, a section which in present days usually is referred to as the “international humanitarian law applicable in armed conflicts”. This deals with such matters as the use in combat of weapons and other means and methods of warfare and the treatment of war victims by the enemy; put another way, its subject is the direct impact of war on the life, personal integrity and liberty of human beings and the degree of protection which can be afforded them. It follows that there must exist a narrow connexion between this humanitarian part of the law of armed conflicts and the international law of human rights. Indeed, the same vital interests of man find protection in the international 24 25 26

Text in International Red Cross Handbook, 11th ed. (1971) p. 7. Ibid., p. 28 et seq. There is an abundance of literature about these questions, which are also dealt with in many handbooks on international law. A special reference seems therefore unnecessary.

Introduction to the Law of Warfare

27

human rights instruments too, for time of peace and even, to a certain extent, for emergency situations such as armed conflict. In the course of time, a large part of the international humanitarian law applicable in armed conflicts has come to be incorporated in treaties and similar instruments. Historically, two lines can be discerned in this process of codification, one leading to what is commonly referred to as the law of The Hague and the other to the law of Geneva. These two bodies of law, named after the centres which were of particular significance in their creation, coincide to a large extent with the two headings mentioned a moment ago, viz., the rules relating to the use of weapons and other means and methods of warfare, and the treatment of war victims who have fallen into the enemy’s hands. It should be added immediately that the distinction made here reflects a difference, not a division. In fact, considerable parts of the law codified by the Hague Peace Conferences of 1899 and 1907 were later incorporated in Conventions of Geneva: viz., the treatment of prisoners of war in 1929, and the relations between an Occupying Power and protected persons in occupied territory in 1949. Again, the recent conferences of Government and Red Cross experts, held in 1971 and 1972, studied proposals for new instruments which were presented as additional to the Geneva Conventions of 1949 but which in reality dealt with aspects both of the law of The Hague and of Geneva. There is, briefly, a close relationship between the two parts of the international humanitarian law applicable in armed conflicts; a relationship which we shall come across again, notably when the protection of the civilian population against the dangers of the war is discussed. The part of the humanitarian law of armed conflict to be discussed in the following chapters concerns the rules relating to the use of weapons and other means and methods of warfare. As this part of the law deals specifically with wartime violence and other activities constituting warfare in a strict sense, I shall refer to it as the law of warfare. Other current terms are the law of combat, or 27

28

29

For an analysis of the relationship between the law of armed conflicts and the law of human rights, see: J.S. Pictet, Les principes du Droit international humanitaire (1966); see also G.I.A.D. Draper, “The Relationship between the Human Rights Regime and the Law of Armed Conflict”, in Israel Yearbook on Human Rights (1971) p. 191. A more critical appreciation of the relationship is given by H. Meyrowitz, “Le droit de la guerre et les droits de l’homme” in Revue du Droit Public et de la Science Politique en France et à I’Etranger (1972) p. 1059. As to the distinction between the Law of Geneva and the Law of the Hague, see: Jean Pictet, op. cit. note 27; Denise Bindschedler-Robert, “A Reconsideration of the Law of Armed Conflicts”, in Carnegie Endowment for International Peace: The Law of Armed Conflicts (1971). The proposals were concerned, inter alia, with such subjects as the protection of the civilian population and the law as to means and methods of warfare, which thus far have belonged to the law of The Hague and which will be discussed infra. At the 1972 Conference, the relationship between the Hague Regulations on Land Warfare of 1899/1907 and the Draft Protocols was expressly mentioned; Report, para. 3.13.

28

Chapter 2

battlefield law. While these terms are appropriate for a specific and indeed central aspect of warfare, the term chosen here is slightly wider and covers the whole of the complex notion of warfare discussed earlier in this chapter. 4

Principles of the Law of Warfare

It seems an apposite conclusion of these introductory remarks to set out the basic principles on which rests the international humanitarian law of armed conflict and, more specifically, the law of warfare. The fundamental principle underlying the whole structure of the international humanitarian law applicable in armed conflicts is that belligerents shall not inflict on their adversaries harm out of proportion to the legitimate goals of warfare. An immediate conclusion from this principle is, for instance, that belligerents shall not kill their prisoners; for, having captured them, they have to that extent weakened the military forces of the enemy, and killing them would add nothing to this result. The basic principle of the law of warfare following out of this most fundamental principle is that the right of the Parties to a conflict to adopt means of injuring the enemy is not unlimited. This is not a mere truism, as it might perhaps appear to be at first glance. It is the confirmation, and a necessary confirmation, that there are legal rules even about warfare, the form of human activity which seems to be most starkly in contradiction with the idea of legal order. Put another way, it is the flat denial of the old saying that inter arma silent leges; true, many (though not all) laws written for more peaceful situations will be silent amidst the tumult of war, but other rules have emerged which govern precisely that situation. This basic principle found expression already in the first multilateral treaty purporting to embody the law of warfare in its entirety, viz., in Article 22 of the Regulations annexed to the Hague Convention concerning the Laws and Customs of War on Land adopted in 1899 by the International Peace Conference and amended in 1907 by the Second Hague Peace Conference. Nor was this the last time that the principle found authoritative expression; in December 1968, just before the end of Human Rights Year, the UN General Assembly adopted Resolution 2444 (XXIII) concerning “respect for human rights in armed conflicts”, which in its first operative paragraph specifically reaffirmed the principle of limitation. From this admittedly very general principle, some further, slightly less abstract principles may be deduced. I mention four: (1) Distinction shall be made at all times between belligerents and the civilian population;

30

Pictet, op. cit. note 27, pp. 28-31, 52-57.

Introduction to the Law of Warfare

29

(2) The civilian population, as well as objects of civilian character, shall not be made the object of deliberate attacks; (3) In attacking military objectives, any unreasonable damage to the civilian population and objects of civilian character shall be avoided; (4) No weapons or other means and methods of warfare shall be used which are calculated to cause unnecessary or otherwise excessive suffering. All these principles are vague and leave many questions open. To enter into these questions is the purpose of the subsequent chapters.

PART 2 reaffirmation and development of international humanitarian law

Chapter 3 The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 24 May - 12 June, 1971*

1

Introduction

When, on 12 August 1949, the Diplomatic Conference of Geneva finished its work, an important part of the law of armed conflict had been “codified and progressively developed” in the light of past experience both of the Second World War and other recent armed conflicts. However, this was a far cry from saying that one could lean back in satisfaction over a job well done. Indeed, equally – or perhaps even more – important problems of the law of armed conflict had remained outside the scope of the Conference and, hence, had not found a solution in the four Conventions it had adopted. The Conference had in fact been restricted to an examination of the problems concerning protection of war victims rather than those concerning warfare proper. And although the IVth or Civilians Convention in particular deals incidentally with the power of belligerents to attack enemy territory, the problem of the protection of the civilian population against the dangers of modern warfare had remained essentially open. Nor did other bodies display any great anxiety to tackle these problems. The International Law Commission, when organizing its work in 1949, decided not to put the topic of the “laws of war” on its agenda, mainly for fear that public opinion might interpret the selection of such a topic “as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for maintaining peace.” The General Assembly, on its part, confined itself to affirming as early as 1946 that the principles contained in the Charter and Judgment of the Nuremberg Tribunal constituted principles of international law, and afterwards rapidly lost interest in the matter. The only significant result achieved in that period, besides the Geneva Conventions of 1949, was the adoption at The Hague, on 14 May 1954, of the Convention for the Protection of Cultural Property in * 1 2

First published in 2 NYIL (1971) pp. 68-90. I.L.C. Yearbook, 1949, 281: Report to the General Assembly, para. 18. Res. 95(1) of 11 Dec. 1946 affirmed the principles. GA Res. 177(II) of 21 Dec. 1947 requested the International Law Commission to formulate these principles in the framework of a draft code of offences against the peace and security of mankind. Thereupon, the attention of the General Assembly became focused on the question of such a draft code, a question which soon became entangled with the problem of defining aggression.

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the Event of Armed Conflict, a Convention concluded under the auspices of UNESCO. In this situation, the International Committee of the Red Cross (or ICRC) felt it could not remain silent in the face of the obvious dangers threatening the civilian population. Its concern was primarily with the threat of nuclear disaster; in an appeal of 5 April 1950, addressed to the Governments of States Parties to the Geneva Conventions, it urged them to arrive at an agreement on the prohibition of nuclear weapons, and of blind weapons in general. Similarly, the first draft text in which the ICRC in 1955 elaborated its ideas about permissible means and methods of warfare bore the title “Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare”. In the second version, published in 1956 as a preparatory document for the XIXth International Red Cross Conference (New Delhi, 1957), the title had been modified to read “Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War”. Yet the concern underlying the Draft Rules had remained the same. Nothing much came of the Draft Rules: after a general discussion of their principles by the New Delhi Conference, it soon became apparent that Governments were for the time being unwilling to commit themselves to anything so .precise as the rules proposed by the ICRC for the conduct of warfare. The crucial issues at the time were obviously the possibility of nuclear weapons being brought into use especially in the form of a “counter city strategy” and the relationship of that apocalyptic prospect to the function of those same weapons and strategy as a deterrent and, hence, as an instrument serving the maintenance of peace. Since the time of the abortive Draft Rules, certain phenomena have become apparent which, on the one hand, have lessened the tendency to give too exclusive attention to the issues connected with nuclear weapons and other means of indiscriminate warfare and, on the other, have increased the need to arrive at a reaffirmation and development of those parts of the law of armed conflict which in 1949 and 1954 were left out of consideration. First, the enormous development in nuclear armaments, so far from leading to an increased threat of major nuclear war, for the time being seems to have resulted in a situation where the actual use of nuclear weapons has become rather less of a probability. Then, it has become apparent that despite the existence of the United Nations, and indeed under the nuclear umbrella of the Great Powers, non-nuclear armed conflicts continue to 3

4

Records of the Conference Convened by the United Nations Educational, Scientific and Cultural Organization Held at The Hague from 21 April to 14 May 1954, published by the Netherlands Government in 1961. Reprinted as Annex XIV in Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, published by the ICRC in May 1969 and submitted to the XXIst International Conference of the Red Cross held at Istanbul in September 1969.

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35

occur, involving the use of all kinds of weaponry and methods of warfare and exposing the civilian population in the countries struck to unspeakable hardships and suffering. Third, while international (in the sense of inter-State) armed conflicts were not wholly absent, the vast majority of the armed conflicts waged in this period were of the type indicated in the Geneva Conventions of 1949 as “armed conflicts not of an international, character”, a category presenting particular difficulties from the point of view of applicable law. And finally, guerrilla warfare has come to be a regular feature of many of the armed conflicts of the present period. The realization of the existence of these phenomena has led to some major changes in the attitude adopted by the various bodies concerned. Thus, the XXth International Conference of the Red Cross held in 1965 at Vienna adopted, at the instigation of the ICRC, a resolution laying down certain basic principles applicable in all armed conflicts and inviting the ICRC to continue its studies with a view to the development of international humanitarian law. While this resolution still bore the title of the item on the agenda “Protection of the Civilian Populations Against the Dangers of Indiscriminate Warfare”, the shift in emphasis came to light even more clearly in the report which the ICRC, after consultation with a group of experts in February 1969, laid before the XXIst International Conference of the Red Cross held in that same year in Istanbul; the report was entitled “Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts” and, while nuclear weapons and other means of mass destruction still occupied an important place, an even greater part of the report was taken up by the problems of conventional and guerrilla warfare and of non-international armed conflicts, even including situations of internal disturbance and tension. Even more pronounced was the change in attitude of the United Nations, where the shift was from a complete lack of interest to deep involvement especially in the human rights aspects of present-day armed conflicts. The new approach became apparent for the first time when the International Conference on Human Rights, held at Teheran in April-May 1968, adopted a resolution urging the study of measures for a better application of existing law and the need of new instruments for better protection of civilians, prisoners and combatants in all armed conflicts. The General Assembly in its 23rd session took over this initiative and in a resolution entitled “Respect for Human Rights in Armed Conflicts” affirmed, on the one hand, the principles formulated in 1965 by the Vienna Conference of the Red Cross and, on the other, charged the Secretary-General to undertake, in consultation with the ICRC, the studies requested by the Teheran Conference. In execution of this charge, the Secretary-General (or, rather, the Human Rights 5 6 7

Res. XXVIII. Res. XXIII. Res. 2444 (XXIII) of 19 Dec. 1968.

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Division of the Secretariat under its active Director, Mr. Marc Schreiber) in 1969 and 1970 produced important reports on “Respect for Human Rights in Armed Conflicts”, giving a clear expose of the many problems to which a better protection of human beings in present-day armed conflicts gives rise. The new trend affected other bodies as well. In September 1969 the Carnegie Endowment for International Peace, which for a long time had refrained from taking on the law of armed conflict as a subject of study and discussion, organized a conference at Geneva, where the issues of modern warfare and the law were discussed on the basis of a lucid, comprehensive report by Professor Denise Bindschedler-Robert on “The Law of Armed Conflicts”. The Netherlands Society of International Law followed suit and in April 1970 held a meeting devoted to the question of the protection of the civilian population in the event of armed conflict, discussing the subject on the basis of reports produced by Professor Dr B.V.A. Röling, Director of the Peace Research Institute of Groningen University, and by the present author. And in Italy one even witnessed the creation of a completely new institution, the San Remo Institute of International Humanitarian Law, concerned primarily with promoting the study of the humanitarian law of armed conflict. With these developments, the ICRC considered the time ripe for a further step which would take the matter out of the sphere of study and reports and bring it into the sphere of lawmaking proper. The ultimate goal was, while leaving the Geneva Conventions of 1949 and the Hague Convention of 1954 intact, to bring into existence one or more new instruments which, if not completely, at least in part would be of equal binding force, and preferably as widely accepted, as the Geneva Conventions. This meant that the final stage would have to be a diplomatic conference; but it was equally evident that further preparations would be necessary before such a conference could be convened. Therefore, the ICRC, after due consultation with the Secretary-General of the United Nations, took the initiative in calling a meeting which would be something between a mere consultation of experts and a conference of Government representatives: it convened a conference of Government experts. The idea was that in this manner the 8 9

10

11

A/7720, A/8052. Carnegie Endowment for International Peace: The Law of Armed Conflict, report of the Conference on Contemporary Problems on the Law of Armed Conflicts, Geneva, 15-20 Sept. 1969. De positie van de niet-bezette burgerbevolking in een gewapend conflict, in het bijzonder met het oog op massaal werkende strijdmiddelen (NBC-wapens) (The position, in case of armed conflict, of the civilian population in unoccupied territory, with special reference to the means of mass destruction or NBC weapons), Mededelingen (Publications) of the Society, Feb. 1970. Statutes of the Institute, reproduced at p. 365 of Human Rights as the Basis of Humanitarian Law, Proceedings of the International Conference on Humanitarian Law, San Remo, 24-27 Sept. 1970.

The Conference of Government Experts ..., 24 May - 12 June, 1971

37

participating Governments would have an opportunity to air their views without formally committing themselves to any fixed positions, while on the other hand the expert element would guarantee an informed discussion of the various questions at issue. The conference was scheduled for May-June 1971. It was however preceded by another experts’ conference of a more or less preparatory character: at the express request of a number of national Red Cross Societies the ICRC invited all those societies who so desired to take part in a Conference of Red Cross Experts for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. This Conference, organized by the Netherlands Society of the Red Cross, took place at The Hague from 1-6 March 1971. 2 The Conference of Government Experts, 24 May - 12 June, 1971 The ICRC invited to the Conference of Government Experts some 40 Governments of States Parties to the Geneva Conventions of 1949, selected on the double basis of geographical distribution and expected expert knowledge. Nearly all the Governments so invited reacted positively; among those who did not accept the invitation, the Government of the People’s Republic of China went out of its way to let the ICRC know that it nonetheless took a deep interest in the matter. Besides Governments, the Secretary-General of the United Nations was also invited to send representatives to the Conference. The Conference was held at Geneva, from 24 May to 12 June 1971. All the working sessions, both of the plenary Conference and of the Commissions which it established, were held in various rooms of the GATT and ITU buildings. The Conference had before it extensive documentation. The ICRC had prepared a set of eight documents containing, besides an introduction (CE/1) and annexes (CE/8), such diverse subjects as: Measures intended to reinforce the implementation of the existing law (CE/2), Protection of the civilian population against dangers of hostilities (CE/3), Rules relative to behaviour of combatants (CE/4), Protection of victims of non-international armed conflicts (CE/5), Rules applicable in guerrilla warfare (CE/6) and Protection of the wounded and sick (CE/7). Other documents before the Conference were the 1969 report on “Reaffirmation and Development of the Laws and Customs Applicable in Armed 12

13

Report on the work of the Conference of Red Cross Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, published by the ICRC, April 1971. The composition of the delegations varied; while some Governments had merely delegated some members of the staff of their permanent missions at Geneva, many other Governments had sent important delegations comprising legal, military, medical, and diplomatic experts. The UN Secretary-General was represented by Mr Marc Schreiber, Director of the Human Rights Division of the Secretariat, accompanied by two collaborators.

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Conflicts”, the two reports by the Secretary-General of the United Nations and reports of the discussions and resolutions of the Hague Conference of March 1971. Thus equipped, the Conference could set to work. The Conference organized its work along the following lines. After two days of general debate in plenary session, it would break up into three Commissions sitting simultaneously. Commission I would deal with the protection of the wounded and sick and Commission II with non-international armed conflicts and guerrilla warfare. Commission III would examine the protection of the civilian population and the rules concerning behaviour of combatants, as well as the question of the protection of journalists on dangerous missions, an item added to the agenda at the special request of the Secretary-General of the United Nations. Commission IV would examine the subject of measures intended to reinforce the implementation of the existing law. This Commission, not originally foreseen by the ICRC, was set up at the express wish of the Conference in view of the generally recognized overriding importance of the topic. However, owing to lack of space and translation facilities it could not meet simultaneously with the other Commissions and therefore would sit during the last week of the Conference, once one of the other Commissions had finished its work. Finally, the Conference would meet again in plenary session to discuss the Commission reports. The procedure to be followed by the Conference, both in plenary session and in the sessions of the Commissions, was laid down in Rules drawn up by the ICRC and accepted by the Conference after some discussion, for instance, of the number of Commissions proposed. Another subject for discussion was the important Rule 6 which, reflecting the character of the Conference as envisaged by the ICRC, laid down that the experts would speak in their personal capacity and without binding their Governments, as well as that the Conference would not “reach any decision, adopt any resolutions or make any recommendations”, nor “take any votes” except for voting “purely as an indicatory measure”. In particular the latter part of this Rule drew some opposition from experts who pointed out that the UN General Assembly in its resolution 2677 (XXV), referring to the work of the Conference, had expressed the hope that it would “make specific recommendations … for consideration by Governments.” The President of the Conference met this objection by explaining that the purpose of Rule 6 was merely to emphasize that the Conference was not a diplomatic conference, and not to prevent the Conference from arriving at conclusions (which, on the contrary, seemed very desirable). 14

Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 24 May - 12 June 1971): Report on the work of the Conference, published by the ICRC in August 1971 (hereinafter cited as Report), paras. 4, 5. All references to this report and other documents of the ICRC are to the English versions. See also the third report of the UN Secretary-General on “Respect for Human Rights in Armed Conflicts”, A/8370, 2 Sept. 1971.

The Conference of Government Experts ..., 24 May - 12 June, 1971

39

Another point of major interest, though not the subject of an express Rule, concerned the character of the debate. As the President pointed out, it was the purpose of the Conference to discuss the existing law and the improvements to be made to it, not the behaviour of particular States. This ruling, which was intended to avoid polemical discussion among opponents on the political front (or worse), was observed fairly closely by all the participants, so that except for some minor incidents this “truce” was not broken throughout the Conference. In its first plenary session, the Conference elected Jean Pictet, VicePresident of the ICRC, as its President. Professor Willem Riphagen, leader of the Netherlands delegation, was elected one of the three Vice-Presidents. Coming now to the work of the Commissions, we will discuss each Commission separately in their numerical order. It may be pointed out as a general remark that the Commissions did not produce verbatim or summary records; the task of their rapporteurs was to draw up reports bringing out the trend of opinion and the various viewpoints expressed in the debate, without indicating which expert or experts had taken this or that position. 2.1

Commission I

In accordance with the document presented by the ICRC, the subject before Commission I consisted of two parts: one, the protection of wounded and sick and civilian medical personnel, and the other, the safety of medical transports. Generally speaking, these subjects were more technical than those before the other Commissions. This was especially true of Part Two, which in large part related to such matters as the use of flashing blue lights, radar and radio frequencies as means of identification of aircraft on medical missions, and hospital ships. Indeed, this subject-matter appeared to be so technical that the Commission, while recognizing the need for precise rules in this field, found itself unable to formulate these in the available time. Discussion of this whole Part was therefore postponed to a second conference of Government experts (which the Conference by that time had come to regard as absolutely necessary). The situation was radically different with respect to the issues dealt with in Part One. Here, the ICRC had added to its introductory remarks the text of two completely worked out draft protocols, concerning international and noninternational armed conflicts, respectively. As the Commission found itself in agreement with the main lines of these instruments, it could soon proceed to an article-by-article discussion and even to the setting up of a Drafting Committee. 15 16 17 18 19

Report, para. 7. Para. 1. Paras. 89-92. Doc. CE/7, Part One, Chapters I and II. Report, paras. 36-37.

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In this manner, the Commission succeeded in producing texts of draft Protocols which, it was felt, were sufficiently detailed to be laid before a future diplomatic conference without any further preparatory deliberation. It is a point of major interest that the Commission did not in fact find any difficulty in accepting the view, propounded by the ICRC, that two distinct instruments were necessary. It was argued that the situations of international and non-international armed conflict are different; that, on the one hand, while the Protocol applicable to non-international armed conflicts would lay down certain rules not now contained in the Geneva Conventions of 1949, it would also have to make provision for certain matters already covered in detail in those Conventions in relation to the situation of international armed conflict; and that, on the other hand, in view of the specific characteristics of non-international armed conflicts, the Protocol in question should at all times avoid entering into too great detail. These seem valid arguments; but it deserves some emphasis that in Commission II in particular, one of the main issues was precisely whether the distinction between the two types of armed conflict could and should be maintained. The first draft Protocol (which was envisaged as an additional instrument to the IVth or Civilians Convention) extends the protection and respect provided for in that Convention for civilian hospitals, to all civilian medical establishments and units, transportation and personnel, and it lays down rules about the role of the population in relation to the wounded and sick. As for the first aspect, it appeared to be a widely shared expectation that in conditions of modern warfare almost all the civilian medical services would be brought under State control. In conformity with this view, the ICRC had proposed to bring under the operation of the new rule the civilian medical personnel “organized and duly authorized by the State”. However, this formula appeared too restrictive to those experts (such as the Dutch) who considered that not all States envisaged such a wartime organization of the personnel concerned. In order to meet this objection, the words quoted above were replaced by the phrase “duly recognized or authorized by the State”. Another question, related to the foregoing, was the matter of the distinctive emblems. In the ICRC proposal, the use of the red cross emblem was extended to authorized personnel of the State medical services. For those “doctors and nurses” who are not members of that service, the proposal provided that “with the consent of the relevant authorities” they could use the red Staff of Aesculapius on a white background for their identification. The aim of this proposal was worthwhile: 20 21 22 23 24 25

Paras. 35, 71. Doc. CE/7, Part One, Chapter I. Report, para. 49. Art. 7 of the ICRC draft. Report, para. 56. Art. 11 of the ICRC draft.

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to prevent the use of the red cross emblem getting out of hand. But its negative side was equally obvious: it amounted to the introduction of yet another emblem which, moreover, would not provide any specific protection. In the debate, these objections prevailed and, while the ICRC was invited to study the problem further in co-operation with other interested organizations, the proposed text concerning the Staff of Aesculapius was removed from the draft Protocol. As for the role of the population, the draft Protocol provides, for one thing, that the population shall be permitted spontaneously to come to the aid of wounded and sick, of whatever nationality, and that no one may be punished for such activities. For another, it provides that the duty of the population is to respect the wounded and sick. The second draft Protocol, relating to the protection of wounded and sick in non-international armed conflicts, for the time being is conceived as an additional Protocol to Article 3 common to the four Geneva Conventions of 1949. The draft text contains a number of basic principles concerning such matters as protection and care of all the wounded and sick, the search and recording of such persons, the role of the population, the respect and protection due to medical and religious personnel and to medical establishments and transportation, the evacuation from danger areas of wounded and sick and other especially vulnerable categories, and the use of the red cross emblem. In debating the functions and protection of medical and religious personnel, the Commission arrived at the conclusion that it was preferable to avoid in the present Protocol such terms as “prisoner of war” and “enemy”, the use of which might give rise to difficulties in the context of non-international armed conflict. This seems an obvious solution of an otherwise very difficult problem; but it may be pointed out already here that Commission II in its discussion of the status of irregular combatants in non-international armed conflicts did not see its way to accepting such an easy way out. An important addition to the text proposed by the ICRC was the inclusion, at the initiative of the Canadian experts, of an article declaring that a State’s offer to send humanitarian aid, or to receive wounded and sick and other especially vulnerable categories of persons, shall not be considered as an unfriendly act or have any effect on the legal status of the parties to the conflict. The Commission adopted the Canadian proposal and extended its operation, as far as the offer of humanitarian aid is concerned, to an impartial humanitarian organization. All this seems innocent enough; yet – and, in view of the recent experience in Nigeria, understandably – the question was raised in the debate whether the 26 27 28

Report, para. 66; the Commission especially mentioned the World Health Organization and the World Medical Association. Doc. CE/7, Part One, Chapter II; Report, para. 72. Report, para. 82; similarly, the Commission decided that all references to the parties to the conflict would be with a small “p”; para. 78.

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provision did not amount to an infringement of the sovereignty of the State. In reply, it was explained that the proposed text did not lay any obligation on the parties to the conflict to accept the aid thus offered: it merely served to encourage humanitarian initiative on behalf of war victims. This somewhat ambiguous answer appears to have satisfied the objectors. 2.2

Commission II

As far as concrete results are concerned, Commission II stands out in sharpest contrast to Commission I. Although in its documentation the ICRC had formulated certain tentative proposals, this Commission made no attempt to arrive at any definite texts; indeed, the whole discussion had very much the character of a reconnaissance. It was generally agreed that the present state of law relating to situations of non-international armed conflict is unsatisfactory; thus, in the four Geneva Conventions of 1949, only common Article 3 is applicable in those situations, and even that Article displays many shortcomings. However, there was no such wide agreement about the best way to mend these defects. Three methods seem to present themselves: to abolish the whole distinction between international and non-international armed conflicts, to bring as many situations as possible under the notion of international armed conflict, and to improve the rules applicable to non-international armed conflicts. The ICRC preparatory document, opting first of all for the third method, suggested the drawing up of a Protocol laying down basic principles of the law of armed conflict. It added some proposals along the lines of the second method. Both these methods, based as they are on the distinction in law between the two categories of armed conflicts, make a consideration of their definition necessary or, in any event, desirable. The existing Conventions merely refer, for international armed conflicts, to “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” (Article 2); and, for non-international armed conflicts, to the “case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” (Article 3); formulas which admittedly leave too much scope for the parties concerned to be of any great avail in dubious cases. Thus, the ICRC had devoted a part of its document to this problem of definition and formulated certain proposals. Principal opposition to this approach came from the Norwegian experts, who considered the entire distinction between international and non-international armed conflicts obsolete. They accordingly proposed an outline for a draft

29 30

Paras. 85-86. Doc. CE/5, Title III.

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protocol that would be applicable in all armed conflicts. The chief merit of this proposal lay in the fact that it removed the need to find any definitions. As the existing Conventions and the customary law would remain in force, however, and as the Norwegians themselves included in their proposal a provision expressly bringing certain situations of armed conflict (such as wars of national liberation) under the operation of the Conventions as a whole, the abolition of the distinction in their proposal seems more apparent than real. Be this as it may, their point of view received some support from other experts; but the general impression is that a majority considered the maintenance of the distinction unavoidable in view of present-day realities. The Commission was thus led to consider the problem of definitions. In the ICRC document this subject was divided in two parts, one relating to the objective finding of the existence of armed conflicts and the other to the question of definition proper. Evidently, the objective finding of the existence of a noninternational armed conflict, and then preferably on the basis of an agreed definition, is a highly desirable goal. It is equally obvious however that little enthusiasm can be expected for the idea of granting some or other international body power of decision in this respect. Thus, while the experts examined many possibilities for existing bodies to be charged with a fact-finding mission or new bodies being created for that purpose, there was a general feeling that for the time being no power of binding decision could or should be conferred on any such body. This merely increased the importance of finding a definition, if only as an instrument in the hands of such existing international bodies or ones about to be created which might be in a position to urge the authorities in a given State to accept that the situation in their country has assumed the characteristics of a non-international armed conflict. The ICRC had argued in its preparatory document that the text to be drawn up should include both a sufficiently flexible definition of the general notion of non-international armed conflict, and a more precise description of those specific situations commonly regarded as unquestionable instances of such conflicts. The Commission discussed the question at length and a number of propositions were introduced. Finally, in view of the complexity of the subject and the wide variety of opinions, a Drafting Committee was set up with the task of putting forward proposals which would enable the Commission to resume discussion of the subject. The Drafting Committee duly submitted a report containing a draft text. However, this deviated in two respects from the line indicated 31 32 33 34 35 36

CE/Com. II/l-2-3, Report, p.61. Report, paras. 112, 134. Doc. CE/5, Title III, Chapters 1 and 2. Report, paras. 197-211. Doc. CE/5, 46-48. Report, para. 166.

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in the ICRC document: it did not purport to define non-international armed conflict as a concept of international humanitarian law in general, but solely as a term governing the applicability of the Protocol on non-international armed conflicts envisaged by the Commission; and, rather than containing any flexible general definition accompanied by a non-exhaustive description of specific situations, it merely gave a limitative enumeration of specific situations, defined as accurately as possible in terms of objective characteristics. When the report of the Drafting Committee came up for discussion in the Commission, several experts duly noticed these deviations with regret. However, it would not have been beyond the wit of man to bring the proposal into line with the original, widely accepted idea of a general formula plus specific examples; indeed, a proposal to that effect was made during the debate. What remained was a valuable effort at defining in slightly more objective terms the hard core (in the sense of most likely and most generally accepted situations) of a notion long considered as escaping definition. It seems indeed probable that the text drawn up by the Committee will play a significant role in the further deliberation of the subject. The Commission, for its part, confined itself to a summary discussion of the proposed text; no vote was taken in the end, not even (in the terms of Rule 6 of the Rules of Procedure) “as an indicatory measure.” The Commission next passed on to an examination of the possible contents of a Protocol on non-international armed conflict. Here, the difficulties really commenced. The subject evoked such thorny problems as the status of insurgents and their treatment as prisoners of war; punishment of rebels for having taken up arms; capital punishment; the task of the authorities in maintaining law and order, especially in new countries still struggling for their very existence; and, generally, the compatibility with national sovereignty of a Protocol providing all kinds of rules for the critical situation of non-international armed conflict. Most of these problems, however, were touched upon rather than thoroughly discussed. It may therefore suffice to comment briefly on one or two of these points, which are thought to be of particular concern. Treatment as prisoners of war for categories of persons who are probably not strictly entitled to such treatment under the IIIrd or Prisoners of War Convention of 1949 is a subject which arose because of increased international sympathy for the cause of liberation fighters in so-called wars of national liberation (that is, for the most part, liberation from colonial or racist domination). Leaving aside the question of the adequacy of this approach in relation to the particular situations concerned, it may be conceded that there is a certain attraction in the idea of ensuring humane treatment of the participants in a non-international armed 37 38 39

CE/Com. II/13/Rev.1, Report, pp. 63-64. Report, para.l77. Para. 190.

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conflict by granting them a treatment similar to that of prisoners of war in an international armed conflict. On the other hand, it brings with it certain difficulties. Thus, while a prisoner of war may be punished, according to Article 85 of the IIIrd Convention, for acts committed prior to capture, he will not be punished for the mere fact of having taken up arms. More generally, it is widely recognized that in actual practice, the prosecution of prisoners of war under Article 85 during the course of the armed conflict encounters such grave difficulties that it is more a theoretical than a practical possibility. In contrast, in the case of non-international armed conflict the authorities in power will be inclined to hold on to the last minute to such notions as their duty to maintain law and order, and the allegiance citizens owe the lawful authority. In their eyes the use of punishment, even for the mere fact of taking up arms, will be a matter of course. These feelings came to light in the Commission when a number of experts expressed their misgivings about imposing an obligation on States to treat rebels as prisoners of war. Closely connected with the foregoing is the issue of the non-application of capital punishment in the context of non-international armed conflict. Here, the hesitations of some experts were, if possible, even more pronounced; they considered it difficult to accept that a Government would be deprived of its power to inflict the death penalty at a time when it was most needed. Generally speaking, and although other experts (among them the Dutch) expressed a completely different view of the usefulness or justification for capital punishment in the situation at issue, the majority of experts appeared not to be ready to endorse without reservations any suggestion as far-reaching as that the death penalty should be declared non-applicable in the event of non-international armed conflict. There was, however, slightly greater support for the suggestion that there should be no executions during the course of such conflicts. The last set of problems discussed by Commission II in connexion with the subject of non-international armed conflict concerned the question under what conditions the whole of “international humanitarian law applicable to international armed conflicts” could become applicable to an armed conflict waged in the territory of a single State. While there was general agreement that the formula of “international humanitarian law applicable in international armed conflicts” should not be taken too literally, since it could never be the intention to oblige the parties to an internal armed conflict to apply without exception all the many detailed rules of the Geneva Conventions, and since those Conventions are partly based on concepts such as nationality and belligerent occupation which

40 41 42 43 44

Paras. 225, 267. Para. 255. Para. 254. Para. 258. Paras. 260-264.

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find no place in a situation of internal armed conflict, there was rather less agreement about the conditions necessary for its applicability in toto to certain specific situations. In short, three types of situations were examined in this context: one where the insurgent party has come to display many of the features of a State (such as possessing territory, a provisional government and administration, armed forces); another one where there is foreign intervention on one or both sides in the conflict, and a last one where the conflict constitutes a war of liberation. The first-mentioned situation, which amounts to the classical situation of civil war, probably presents the least difficulties. The second one, examples of which abound in current history, raises many problems, both of a fundamental and technical order, such as the type and level of intervention required to have the effect of internationalizing the conflict, and whether intervention entails the application of the whole of international humanitarian law to all the participants in the conflict or only to the foreign intervening forces, et cetera. As for wars of liberation, the attempt to class these as international armed conflicts rests, on the one hand, on a series of United Nations resolutions and, on the other, on genuine concern for the fate of the liberation fighters; but it is open to grave doubt whether the classification of such wars under this heading, without regard for factors such as the level of fighting or the degree of organization of the liberation fighters or their number, can do their cause any significant good. The body of international humanitarian law applicable in international armed conflicts is designed to govern the conduct of belligerents in certain characteristic factual situations, and an attempt to declare it applicable to a situation which does not in fact present these features runs the risk of remaining a dead letter. Anyway, opinions among the experts were sharply divided on the issue, with many defending the view that wars of liberation are international armed conflicts under present-day international law and many others emphasizing the difficulties inherent in such an approach which tends to reintroduce ideas of bellum justum in the context of international humanitarian law. It remained for the Commission to discuss the subject of guerrilla warfare. This highly topical method of waging war has given rise to a whole series of humanitarian problems, ranging from the status of participants to the position of the civilian population and the methods of warfare. From one point of view, there may be no reason to devote separate attention to these problems, as guer45 46 47 48 49 50

Paras. 114-122. Paras. 282-289. Paras. 290-308. See the reports of the Secretary-General, A/8052, paras. 195-203, and A/8370, para. 135. Report, paras. 321-331. Paras. 332-338.

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rilla warfare occurs either in the context of an international armed conflict (where the whole of the law of armed conflict applies) or in the context of a non-international armed conflict (where certain basic minimum rules apply). This, however, seems a rather too legalistic approach, as it happens only too often that the parties, or one of them, deny the existence of the conflict, the applicability of the relevant law, or their opponent’s status as participants. In order to meet this practical difficulty (which for all practical purposes leads to a lawless situation), the ICRC proposed to draw up Standard Minimum Rules, not as an agreed instrument, but as a text which should be at the disposal of belligerent parties for unilateral adoption, irrespective of – and without influence on – the classification of the conflict. Naturally one would hope that reciprocity – highly desirable as an incentive to faithful observance – might be achieved by both parties delivering parallel unilateral undertakings. There was some sympathy among the experts for the idea of Standard Minimum Rules. On the other hand, the matter of the contents to be given such Rules was not studied in depth, owing to lack of time. Slightly more attention was given to another proposal of the ICRC, which aimed at adding to the IIIrd or Prisoners of War Convention a Protocol relaxing by interpretative means, the conditions laid down in Article 4A(2) of that Convention for the granting of prisoners of war status to captured combatants. These conditions, originally formulated for militia and volunteer corps and in 1949 also made applicable to resistance fighters in occupied territory, require a responsible commander, a uniform or fixed distinctive sign, the carrying of arms openly, and observance of the laws and usages of war. There is general agreement that it may be very difficult, if not impossible, for guerrilla fighters to meet all these conditions, especially if taken literally. It is equally agreed, however, that regular armed forces do not nowadays carry arms openly in all circumstances, nor are they always easily recognizable by their uniforms. In these circumstances, it seems logical to relax the conditions for guerrilla fighters as well. While many (though not all) of the experts were ready to accept such a relaxation in principle, there was less agreement about how far it should go. The Norwegian expert, who felt that membership of a guerrilla organization should be made the sole condition, went furthest. While this seems very drastic, he detracted slightly from the far-reaching consequences of his statement by explaining that “guerrilla organization” should be understood to mean “a movement with a high command capable of ensuring generally the execution of its 51

52 53 54

Doc. CE/6, Chapter V. See also Michel Veuthey, “Règles et principes de droit international humanitaire applicable dans la guérilla”, 7 Revue belge de droit international (1971-2) p. 505 et seq. Report, para. 371. Doc. CE/6, Chapter II, section 2. Report, para. 372.

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orders, including as far as possible respect for the laws and customs of war”. Two comments spring to mind: in this formulation, particular significance attaches to the words “as far as possible”; and any reference to an obligation for guerrilla fighters to make themselves distinguishable from the civilian population is conspicuously absent. The latter obligation was essential to many experts, who considered that the distinction between combatants and the civilian population is at the very root of international humanitarian law. However, the point was left undecided. 2.3

Commission III

The question of the distinction between civilian population and participants in the hostilities was among the first to be discussed by Commission III, in the context of the protection of the civilian population. The documentation on which the discussion was based proposed certain tentative definitions for such key concepts as “civilian population” and “non-military object”, as well as a number of detailed rules for the protection of these categories, distinguished in general protection of the whole of the civilian population and of non-military objects, and special protection of certain specified categories. All of this was envisaged as applying without distinction to international and non-international armed conflicts alike; this approach was received favourably by several experts. If the definition of “military objectives” and “non-military objects”, “combatants” and “civilian population” is to serve a useful purpose, it can only be on the basis of the presupposition that the distinction between these various categories can be made, not only in law but in practice as well. The value of these distinctions has long been a matter of doubt for certain publicists, who felt that technological and ideological developments had come to a stage where the civilian population, far from being in a protected position, constituted perhaps the most essential target of the military operations. Recently, however, there has been a marked tendency to reaffirm the validity of the distinctions and of the basic idea of protection of the civilian population. This tendency was confirmed by the discussion in Commission III, where none of the experts who expressed themselves on the matter doubted that the distinction can and should be made.

55 56 57

58 59 60

Para. 378. Para. 381. Doc. CE/3, Part One, Title II. See also Jean Mirimanoff-Chilikine, “Protection de la population et des personnes civiles contre les dangers résultant des opérations militaires”, 7 Revue belge de droit international (1971-2) p. 619 et seq. Doc. CE/3, Part One, Title I, Chapter 3. Report, para. 417. Para. 425.

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As for the actual definition of the several concepts and the degree of protection to be afforded each of these, a variety of ideas was expressed by the experts. Thus, while there might be agreement that the civilian population includes those who do not take part in the hostilities, no such agreement could be achieved about what constitutes participation in the hostilities. Obviously, the latter concept can be limited or extended to extremes; the first approach will tend to enlarge the category of persons under protection, but may entail the risk of making the whole idea of protection illusory; conversely, the wider the meaning given to participation in the hostilities, the smaller will be the category of persons protected as civilians and the more complete their protection. Categories of persons giving particular difficulty in this respect are those whose activities contribute more or less directly to the war effort (as distinct from the military operations proper), and those who do take part in military operations but only on a part-time basis. A majority of the experts was inclined to steer a middle course, rejecting both the idea that any contribution to the war effort would be considered to constitute participation in the hostilities, as well as the suggestion that part-time participants would be counted among the civilian population except for the duration of their active participation. But they did not succeed in finding formulations for the several concepts mentioned that could satisfy them all. It seems not improbable, however, that in due time an agreed solution will be found. While all this concerned the general protection of the civilian population (that is, immunity from attack and due regard in carrying out attacks on military objectives), the other main aspect of protection of the civilian population was special protection. This can be envisaged, either, as special protection for particular categories of persons or as special immunity for particular zones. Provisions concerning both these possibilities are contained in existing Conventions; thus, according to Article 16 of the IVth or Civilians Convention, the wounded and sick, the infirm and expectant mothers “shall be the object of particular protection and respect”, and Article 14 of the same Convention provides for the establishment of “hospital and safety zones and localities so organized as to protect from the effects of war, wounded and sick and aged persons, children under fifteen, expectant mothers and mothers of children under seven.” The preparatory document of the ICRC mentioned the possibility of extending special protection to such categories of civilians as the civilian medical personnel (a subject dealt with by Commission I, as we have seen), civil defence personnel, members of the police forces and the fire services, and journalists on dangerous missions. It also mentioned women, children and the wounded, sick and infirm, partially as an extension of the categories enumerated in Article 16 of the IVth Convention and partially in order to extend the applicability of the protection to non-international armed conflicts. 61 62

Paras. 426, 432-439. Doc. CE/3, Part One, Title II, Chapter 3, section 3.

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In the course of the debate, certain other specific categories were added to this list, such as the aged, ministers of religion, and refugees. It also became apparent, however, that the whole idea of special protection for particular categories of civilians was met with less than enthusiasm by a number of experts, who felt that the concept of special protection was not itself over-clear and that, moreover, the principle o general protection of the civilian population might be impaired by bringing ever more categories of civilians under special protection. These negative aspects were brought out once again when, at a later stage of the Commission’s work, the debate turned to the position of the civil defence organizations (a subject that we shall not discuss). The other modality of special protection, viz., special immunity for particular zones situated at a distance of the zone of military operations, was met with equally mixed feelings. While some experts regarded it as a most valuable contribution to the protection of the civilian population, several other experts evoked the many difficulties attending its application in practice, and the fear was expressed that the placing of particular zones under special protection would merely result in weakening the general protection of the civilian population not accommodated in such zones. The Commission next turned briefly to such issues as zone and terror bombardment, the use of certain weapons, and economic warfare. The debate on these questions showed up a marked tendency among the experts to protect the civilian population against the effects of these and similar means and methods of warfare. However, it was too summary to warrant a detailed discussion here. One subject left for the Commission, concerning the protection of journalists on dangerous missions, was topical in so far as recent history had demonstrated the very real dangers to which journalists operating as independent war correspondents expose themselves. The General Assembly and the Commission on Human Rights of the United Nations had passed resolutions on the matter, and the last-mentioned Commission had proposed a draft Convention for the protection of journalists, the text of which was before Commission III. Here, 63 64 65 66

67 68 69 70

Report, paras. 452-453. Para. 443. Para. 489. Paras. 468-471. The idea of zones of refuge was given a prominent place in the second report of the UN Secretary-General on “Respect for Human Rights in Armed Conflicts”, A/8052, paras. 73-87. Report, paras. 472-483. Res. 2673(XXV) of 9 Dec. 1970. Res. 15(XXVII) of 24 March 1971. E/CN.4/L.1149/Rev.1, 22 March 1971. As for the organizational and procedural aspects of this question, see the report of the Working Group established in accordance with para. 4 of Commission of Human Rights Res. 15(XXVII), A/8438, 29 Sept. 1971.

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again, opinions were divided. A number of experts gave their full support to the idea of special protection for journalists on dangerous missions, whether in principle or in the specific form of the draft articles drawn up by the Human Rights Commission. Other experts were not so entirely convinced of the desirability of special protection for this category; their objections ranged from the general consideration that special protection for one category of civilians weakens the general protection of the civilian population as a whole, to such specific arguments as that any special protection could only be justified for those journalists providing complete, objective and honest information, and that a journalist under special protection might well make use of his position to carry on activities detrimental to the country of sojourn. In its final meeting, Commission III broached, as the last item on its agenda, a completely new subject, viz., the rules relative to the behaviour of combatants. These rules are embodied, as far as written law is concerned, in the Hague Regulations of 1907. The rules address such diverse subjects as granting quarter, the position of spies, and prohibited means and methods of warfare. While the rules go into considerable detail on some subjects (such as the definition of spies and their position in various circumstances), other subjects of great practical concern are hardly elaborated (the difference between ruses and treachery, the prohibition on the use of means causing unnecessary suffering) or are not even mentioned at all (the obligation to wear a uniform and – not surprisingly – the position of airmen in distress). It is therefore generally admitted, as was admitted by the experts on the Commission, that the rules, while having retained all their validity in principle, stand in need of being completed and updated, so as to be better adapted to the conditions of modern warfare. Apart from this general conclusion, the experts also touched upon many specific issues relating to the behaviour of combatants. There was, for instance, a proposal submitted by the experts of the Federal Republic of Germany to lay down more precise rules concerning ruses and treacherous conduct (or perfidy, as it is now usually called). While the formulation of the proposal was not particularly felicitous in all respects (as, for instance, when the terms “stratagems” as permissible means and “illicit stratagems” as prohibited means were put into juxtaposition), it nonetheless constituted an interesting attempt to bring greater clarity to this essentially obscure matter. Another such subject was the position of airmen in distress. The problems here are that crew members of military aircraft are comparatively scarce (so that their elimination is a worthwhile goal); that it is difficult for them, when in dis71 72 73 74 75

Report, para. 508. Para. 509. Para. 510. Paras. 516-518. CE/Com.III/C.l, Report, 105; see also para. 521.

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tress, to indicate their willingness to surrender, and that it is often uncertain whether they will touch down on their own or enemy territory. This leads to an inclination in practice to attack them while parachuting down or immediately after they have reached the ground. It may on the other hand be argued that this is an illicit practice, as the airmen in question are at least temporarily hors de combat. Few experts expressed themselves on this question, and one cannot refer to any consensus of opinion among them; but it is worth noting that those who did give an opinion were in favour of a prohibition on attacking airmen in distress, even if they should fall behind their own lines. 2.4

Commission IV

The task before Commission IV was to discuss measures intended to reinforce the implementation of the existing law, under four subheadings: supervision, penal sanctions, reprisals and dissemination. As for supervision, most experts drew a sharp distinction between international and non-international armed conflicts. Supervision was generally viewed as necessary and acceptable in cases of international armed conflict, and a number of proposals were formulated concerning a better operation of existing machinery or the creation of new machinery, whether in the context of the United Nations or otherwise. Here, two points stand out: the ICRC declared itself ready to assume the complete responsibilities of Protecting Powers as envisaged in the Geneva Conventions of 1949, and there was substantial support for the suggestion that (existing or new) UN machinery would be added to the list of possible supervisors. Much greater hesitation prevailed as to the feasibility, and even the desirability, of supervision in non-international armed conflicts. While some experts considered supervision in those circumstances an equally urgent necessity, others held that outside supervision in a non-international armed conflict would be frustrated by national sovereignty and that implementation of the law, including 76 77 78 79

80 81 82 83

Report, para. 520, and CE/Com.III/C.3 (proposal submitted by the Israeli experts). Report, p. 105. Commission IV elected the present author as its Rapporteur. Report, para. 530. Paras. 533-539. Among the documents before the Commission was the text of a Projet de règlement d’exécution des Conventions de Genève du 12 août 1949 pour la protection des victimes de la guerre, adopted 17 April 1971 by the Commission médico-juridique de Monaco in its 6th session. Report, paras. 540-549. Paras. 552-554. Paras. 540,543. Paras. 225, 531.

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international humanitarian law, in a country was a task entrusted to the national authorities. Under the heading of penal sanctions, attention was given to the setting up of an international tribunal (a goal considered desirable by many experts, though they doubted its realization in the foreseeable future) and, on the national level, to the implementation by all States Parties to the Geneva Conventions of their obligation to enact the necessary legislation to provide effective penal sanctions for persons committing, or ordering the commission of any of the grave breaches defined in the Conventions. The drawing up of a model law was thought desirable by a number of experts, in spite of the difficulties inherent in such an undertaking in view of the wide differences between systems of penal legislation. Other experts held, on the contrary, that no special legislation was required as the acts defined as grave breaches in the Conventions were all punishable under ordinary penal law; a view which in the light of the preparatory documentation of the ICRC can clearly be disputed. Be this as it may, there was widespread sympathy for the endeavours of the ICRC to collect and publish relevant legislation, and the continuation of these efforts was generally urged. Reprisals, at one time a widely accepted means of enforcing the law of armed conflict, are regarded with little sympathy nowadays and indeed have become the object of far-reaching prohibitions, both in the Geneva Conventions of 1949 and the Hague Convention of 1954. There is one area however where no such prohibitions have yet been effected, viz., the domain of military operations proper; and the category of persons most directly threatened by the possibility of reprisals in that domain is precisely the civilian population (reprisal bombardment, counter city strategy). Confronted with this issue, a number of experts expressed as their opinion that belligerent reprisals still hold an important place in the law of armed conflict and cannot simply be outlawed at a stroke.  On the other hand there was widespread agreement among the experts that, as stated in General Assembly Resolution 2675 (XXV), the civilian population should in no circumstances be made the object of such reprisals.

84 85 86 87 88 89 90 91 92 93

Paras. 239-242 (this point emerged especially in the discussion of Commission II). Report, paras. 558-561. Para. 562. Para. 564. See also Doc. CE/2, Chapter III, section B: 39. Report, para. 563. Doc. CE/2, Chapter III, section E: 47. Report, para. 562. For a general view of this question see, by the present author, Belligerent Reprisals (1971). Report, para. 574. Para. 577.

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Perhaps the most complete consensus of opinion found during the entire conference concerned the need for dissemination of knowledge of the Geneva Conventions, a procedure regarded as a better guarantee of respect for the humanitarian principles than any penalty. Among the numerous suggestions made in this respect it is worth mentioning the following: that national Red Cross societies train legal advisers to be attached to the staff of military commanders (a suggestion first made by the representative of the Canadian Red Cross at the Hague Conference of Red Cross Experts, March 1971); that courses on international humanitarian law be introduced in universities, and that States submit their military manuals (so far as classification permits) to the United Nations or the ICRC, in order that their comparative study might lead to their improvement. 3

Conclusion

Surveying the whole of the Conference’s work, it seems justified to conclude on a fairly positive note. The Conference had before it a wide variety of intricate questions of great practical moment, and it discussed these in a constructive spirit. True, political postures and alignments were often discernible in the debate, but this was indeed a necessary element in a Conference designed to provide a forum for discussion, not merely among experts but, in an informal and non-binding manner, among Governments; and, as remarked before, politics did not on this occasion degenerate into polemics. As for results, with the sole exception of Commission I, the Commissions did not arrive at any agreed solutions nor draw up any definite proposals. This actually was in accordance with the task of the Conference, which was to study and deliberate, not to reach any decisions or eliminate any problems. Taking this into account, one does not hesitate to state that the reports of the Commissions and the plenary sessions provide most useful information on the opinion of Government experts concerning the various questions discussed and thus represent a valuable contribution to the future work in this field. It was clear from the outset that this one Conference of Government Experts would be insufficient preparation for the final stage of a diplomatic conference. Many of the experts emphasized this over and over again: in their view, another experts’ conference would be necessary to complete the work. The announcement made by the President of the ICRC in the final session of the Conference that

94 95

Para. 578. Para. 579. As for the Canadian suggestion, see also the report of the Hague Conference (supra note 12), Chapter IV, section C: 29. The San Remo International Institute of Humanitarian Law (supra note 11) held a seminar from 2-4 Sept. 1971 on “Humanitarian Regulations and Instructions to Armed Forces”; the resolution adopted by the seminar is reprinted in A/8370/Add.1 of 5 Oct. 1971.

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another such conference would be organized in 1972, was therefore received with unanimous approval and satisfaction. The next Conference, convened for May 1972, will represent a further marked step towards the final stage of a diplomatic conference, in two respects: Governments of all States Parties to the Geneva Conventions of 1949 are invited to send their representatives and the ICRC will submit to the Conference concrete proposals in the form of draft texts. However, in the chain of events leading up to the ultimate goal, the 1971 Conference of Government Experts will have constituted an indispensable link.

96

These feelings found expression in a “document” (as the Rules of Procedure permitted no resolutions); Report, para. 603, and CE/Plen/3, Report, p. 121.

Chapter 4 The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session), 3 May - 2 June, 1972*

1

Introduction

As mentioned in my previous paper, the Conference of Government Experts held in Geneva in May 1971, although an important step on the road towards the “reaffirmation and development” of certain more or less neglected parts of the international humanitarian law applicable in armed conflicts, was in itself insufficient preparation for a future diplomatic conference. A second conference of experts appeared indicated, and the announcement made in the final session of the Conference by the President of the International Committee of the Red Cross (or ICRC) that such a conference would be organized in 1972, was received with unanimous approval and satisfaction. This second session of the Conference of Government Experts was duly held in Geneva from 3 May - 2 June 1972. Prior to entering into its proceedings, it seems useful to put on record certain other activities, related to the subject of this note, which took place in the period between the two Conferences. First, on the level of the United Nations, the Secretary-General submitted to the twenty-sixth session of the General Assembly his third Report on Respect for Human Rights in Armed Conflicts. This consisted for the most part of a comprehensive account of the 1971 Conference of Government Experts. On the basis of this Report and of other relevant documents before it, the Third Committee on 15 December 1971 and the General Assembly on 20 December 1971 adopted two resolutions concerning the general aspects of the subject and one relating to the protection of journalists on dangerous missions.

* 1 2 3 4

Published earlier in 3 NYIL (1972) pp. 18-61. 2 NYIL (1971) p. 68 et seq., at p. 89. A/8370, 2 Sept. 1971. See also the comments of governments on the earlier reports of the Secretary-General, A/8313 and add. A/8589, 15 Dec. 1971: Respect for Human Rights in Armed Conflicts, Report of the Third Committee. GA Res. 2852, 2853 and 2854 (XXVI).

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Important elements in GA Resolution 2852 were: the emphasis laid on the “need to evolve norms designed to increase the protection of persons struggling against colonial and alien domination, foreign occupation and racist regimes” (operative paragraph 3 sub b), the request to the Secretary-General “to prepare as soon as possible, with the help of qualified governmental consultant experts, a report on napalm and other incendiary weapons and all aspects of their possible use” (paragraph 5), and the emphasis placed on the need for wide dissemination of the “principles of respect for human rights applicable to armed conflicts” (paragraphs 6, 7). Resolution 2853 (XXVI), which had many elements in common with the previous one, distinguished itself most markedly by expressing the hope that the second session of the Conference of Government Experts would lead to recommendations “for subsequent consideration at one or more plenipotentiary diplomatic conferences” (operative paragraph 3) and by calling upon “States parties to the existing international instruments to review, as a matter of priority, any reservations they may have made to those instruments” (paragraph 4). For the rest, both Resolutions favoured the continuation by the ICRC of the work which it had initiated for the reaffirmation and development of international humanitarian law applicable in armed conflicts. As for the specific subject of “protection of journalists engaged in dangerous missions in areas of armed conflict”, a matter of special interest to the General Assembly and the Commission on Human Rights since 1970, Resolution 2854 (XXVI) bore witness to the fact that the problems attending realization of the idea of special protection for this particular category of civilians were far from solved. Not only had both Australia and the United States submitted alternative texts for the 1971 draft of the Commission (originally a French proposal) but a number of critical observations, made both in writing by Governments and orally in the debate amounted to expressions of serious doubt as to the 5

6 7

8 9 10

This 12-Power Resolution was sponsored by Austria, Chile, Ecuador, Egypt, Ireland, Kenya, Mexico, Morocco, Norway, Peru, Sweden and Yugoslavia. The requested report on napalm and other incendiary weapons was brought out on 9 Oct. 1972, A/8803. This 3-Power Resolution, introduced by the United States, was co-sponsored by Japan and New Zealand. Despite its general language, this paragraph envisages in particular the reservation of the Soviet Union and other communist States to Art. 85 of the 1949 Prisoners of War Convention, to the effect that prisoners of war will lose their status once they are convicted of a war crime. The United Kingdom, which proposed the paragraph, has meanwhile set the example by withdrawing its own reservation to Art. 68 of the 1949 Civilians Convention regarding the right to impose the death penalty in occupied territory. A/C.3/L. 1902 and 1903. A/8371, annex II; A/8371/Add. 1 and 2. A/8589 (Report of the Third Committee), paras. 15-18.

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very desirability and feasibility of the project, thus confirming the hesitations expressed at the first Conference of Government Experts. The Resolution in its second operative paragraph therefore invited the Commission on Human Rights to reconsider the 1971 draft convention in the light of all these facts. The Commission, not discouraged at all, in its twenty-eighth session, 6 March - 7 April 1972, elaborated a new set of draft articles of an International Convention on the Protection of Journalists Engaged in Dangerous Professional Missions in Areas of Armed Conflict. Having approved these “as the basis for further work”, it transmitted them to the Conference of Government Experts. In the period under consideration, the ICRC also deployed a great many activities in preparation of the second session of this Conference. First to mention, and a major achievement, was the elaboration of two draft protocols: (1) a Draft Additional Protocol to the Four Geneva Conventions of 12 August 1949 (intended to be applicable in international armed conflicts) and (2) a Draft Additional Protocol to Article 3 Common to the Four Geneva Conventions of 12 August 1949 (intended for non-international armed conflicts). These draft texts, together with a commentary in two volumes, were distributed in the early spring of 1972, as the basis for the discussions at the Conference. Then, in accordance with a wish of the 1971 Conference, the ICRC sent out a questionnaire concerning measures intended to reinforce the implementation of the Geneva Conventions of 1949. By the time of the second session of the Conference, this questionnaire, which had been sent out to the Governments of all the States Parties to the Conventions, had drawn the replies of thirty-two Governments. The third preparatory activity consisted in a number of consultations with a variety of persons, both official and private. In this respect, particular importance attached to two conferences which the ICRC organized in this period. On 18-19 November 1971, a consultative meeting of non-governmental organizations was held in Geneva, where representatives of thirty-eight NGOs discussed the main issues involved in the development of international humanitarian law. And the first session of the Conference of Red Cross Experts (The Hague, March 1971) was followed by a second session in Vienna from 20-24 March 1972, attended by representatives of thirty-six national Red Cross and Red Crescent societies and 11 12 13 14

Res. 6 (XXVIII). D-O-1210. D-O-1252/b/e and Add. 1-3. D-1251: Report of the Consultative Meeting of Non-Governmental Organizations on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (18-19 Nov. 1971). One of these NGOs, the International Institute of Humanitarian Law at San Remo, held a seminar from 2-4 Sept. 1971 on “Humanitarian Rules and Instructions to Armed Forces”. The resolution adopted at the end of the seminar was published by the UN Secretary-General as A/8370/ add.1.

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of the League. Here too, all the most important aspects of the questions at issue were discussed and many suggestions were made, a number of them in the form of written amendments to the Draft Protocols, the text of which had by that time been published. The latter Conference in particular proved a most useful preparation for the Conference of Government Experts. It also concluded the ICRC’s series of preparatory activities. 2 The Conference of Government Experts, Second Session, 3 May - 2 June, 1972 The second session of the Conference of Government Experts, to which all the Parties to the Geneva Conventions of 1949 had been invited to send their experts, was attended by delegations from 76 States spread all over the world, and of the Holy See. Among the Great Powers, the People’s Republic of China was the only one absent. The Secretary-General of the United Nations had once again been invited to send his representatives. This time, there were moreover a number of observers from the League of Red Cross Societies and from some national Red Cross societies, this in response to a wish expressed by the Red Cross world to be more directly involved in the law-creating process. The Conference, which held its meetings in the Palais des expositions, had as the basis of its discussions the Draft Protocols and annexed documents submitted by the ICRC, as well as the Draft Articles on the protection of journalists, transmitted by the Commission on Human Rights. It also had before it the documentation which the ICRC had presented already in 1971, plus the report of the ICRC on the first session of the Conference, the Secretary-General’s report on that same event, and the reports of the ICRC on the subsequent conferences

15

16

D-l254: Conference of Red Cross Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vienna, 20-24 March 1972 (second session): Report on the Work of the Conference, published by the ICRC, April 1972. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, second session, Geneva, 3 May - 3 June 1972: Report on the Work of the Conference, published by the ICRC, July 1972. Like in 1971, the size of the delegations and the degree of expert knowledge varied considerably, and with that the capacity of delegations effectively to contribute to the work of the Conference. The UN Secretary-General was once again represented by Mr Marc Schreiber, Director of the Human Rights Division. The Report is in two volumes, one containing the report of the proceedings of the plenary sessions and the Commissions, and the other containing the documents submitted by the ICRC to the Conference and the amendments and other proposals submitted by experts during the Conference. References to paragraphs and article numbers are to Vol. I, references to documents numbers (CE/…) to Vol. II. See also the Report of the Secretary-General, A/8781, 20 Sept. 1972.

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of NGOs and Red Cross experts and on the replies sent by Governments to its questionnaire on implementation. The first two days were spent on a general debate in plenary session. Jean Pictet, Vice-President of the ICRC, was again elected as President of the Conference, and Professor Willem Riphagen, leader of the Dutch delegation, was elected one of the Vice-Presidents. The Conference did not find any difficulty in accepting the Rules of Procedure proposed by the ICRC and which were virtually identical to those of the first session. Essential rules for this Conference were therefore, once again, that it would not “adopt any resolutions or make any recommendations” and that any votes taken would be purely indicatory, and the rule that it would “eschew all discussions of a polemical or political nature” (Rule 7, paras. 2 and 3). Neither of these rules met with any great difficulties in practice; in particular the rule about the non-polemical and non-political character of the debate was respected fairly well throughout the Conference. After the two days of general debate the Conference split up into four Commissions of the Whole sitting simultaneously. The subject-matter of Draft Protocol I (international armed conflicts) was divided among Commissions I (wounded, sick and shipwrecked), III (combatants and civilian population, including journalists) and IV (implementation, general and final provisions). Draft Protocol II (non-international armed conflicts) was assigned in principle to Commission II. For the sake of convenience, the proceedings of the Commissions will hereafter be briefly discussed in the order just indicated. 2.1

Commission I

Three items were on the agenda of Commission I: general provisions concerning the protection of wounded, sick and shipwrecked persons, the specific issue of medical air transport, and the question of the position of national Red Cross societies (an item included by the Commission on its own initiative). The first of these questions had been thoroughly examined at the 1971 session, while the question of medical air transport had at that occasion barely been touched upon. At the beginning of its work, the Commission set up a Drafting Committee with a limited membership. The meetings of the Committee were however open to all other members of the Commission. Every draft article was examined three times: in the Commission, in the Drafting Committee, and again in the Commission. As a result of this method, the Commission could conclude its work with the adoption, by a large majority, of a set of carefully considered draft articles for each of the items mentioned above. As for the first question mentioned, the feeling in 1971 had been that the work done on the draft Protocols concerning the protection of wounded and sick and civilian medical personnel had brought the matter to a point where the results could without further preparations be submitted to a future diplomatic

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conference. At the 1972 session it appeared necessary, however, to reopen the debate on many of the questions concerned. Several factors contributed to this development. First, the ICRC had incorporated the 1971 texts (which at the time had been intended to supplement only the Fourth, or Civilians, Convention) in Draft Protocols which now were intended to supplement all four Geneva Conventions. In doing so, the ICRC had moreover rewritten several articles and added completely new ones. And a third, independent factor was the participation of a number of delegations from States which had not been represented in 1971; while this had about the same effect on the composition of all four Commissions (although several of the smaller delegations found it impossible to attend all Commissions), its effect on the debate was most marked in Commission I. This, as the only one, had already in 1971 discussed and approved concrete draft articles the essence of which could be found again (notwithstanding the modifications mentioned above) in the texts now submitted to it, and but for the participation of new delegations there would have been little reason to reconsider notions accepted a year ago. In another respect the task of the Commission was more limited than in 1971: as said before, this time it was expected to examine only the problems relating to international armed conflicts. A major part of the general provisions was taken up by the question of the position of duly recognized civilian medical establishments and units and their personnel. The principle accepted at the first session, that protection should be extended to categories not covered by the Fourth Convention of 1949, was reaffirmed, and an important further extension was added when it was agreed that temporary medical establishments, units and personnel should be accorded the same protection as permanent ones for the duration of their employment as such. On the other hand, the Commission did not accept a suggestion to extend this protection to individual members of the medical profession such as the village doctor; it was feared that in the event of an armed conflict this would lead to an uncontrollable proliferation of Red Cross emblems and thus to a fatal weakening of the protection afforded by this emblem. It was therefore decided not to extend the protection beyond the (permanent or temporary) personnel of duly recognized medical establishments and units and of national Red Cross societies. It is worth noting moreover that the idea, propounded in 1971, to use the Staff of Aesculapius as a means of identification for the category of the “village doctors” was not taken up again. The Red Cross emblem, it was agreed, could be used for all of the medical establishments and units, medical transport and medical personnel falling 17 18 19

Op. cit. note l, at p. 75. Paras. 1.20, 1.22, 1.31, 1.37; Commission draft Articles 14, 16, 18. Para. 1.40.

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under the Protocol, provided always that such use be authorized by the competent national authorities and subject moreover to the reservation that temporary establishments, units, transport or personnel display the emblem only while actually employed for the purposes set out in the Protocol. In 1971, the principle had already been accepted that the civilian population shall be permitted to come to the aid of the wounded and sick, of whatever nationality, and that its duty is to respect such war victims. The Commission had no difficulty in reaffirming this principle. In doing so, it replaced the words “of whatever nationality” by the even more unequivocal phrase “even if they belong to the adverse Party.” Another, more important modification concerned the scope of the principle; while in the 1971 version this only applied to “the wounded and sick”, it was now extended to cover a far wider category defined as “other persons who are or may be in serious need of medical attention.” Another interesting and topical matter is the principle of protection of medical duties in general, a subject on which the Geneva Conventions of 1949 are silent. In 1971, the Commission had accepted a draft provision on this subject proposed by the ICRC. In the 1972 session the text was amended slightly, so as to bring out clearly that the purport of this principle was not to protect a specific category of persons (and notably the medical personnel attached to the medical establishments and units mentioned earlier) but rather a specific type of activities. According to the draft Article as it was finally accepted by the Commission, no person shall be punished in any circumstances for carrying out medical activities compatible with professional ethics, nor shall any person engaged in medical activities be compelled to violate any provision of the Geneva Conventions or annexed Protocol, or to carry out work contrary to professional rules or to abstain from acts demanded by such rules. The draft Article finally specifies that no person engaged in medical activities shall be compelled to inform the adversary about the “wounded, sick and shipwrecked under his care”, exception solely being made for “compulsory medical regulations for the notification of communicable diseases.” The second major issue before Commission I, medical air transport, is both more technical and more controversial in character than the questions discussed so far. For its more particularly technical aspects a Technical Sub-Commission was set up, which elaborated a number of recommendations concerning the marking and identification of medical transports, and of medical aircraft in par20 21

22

Commission draft Articles 14, 16, 18. Commission draft Art. 20, referring to draft Art. 12 which defines the categories of persons qualifying for protection and care. After the phrase quoted in the text above, that Article continues: “such as maternity cases and newborn infants together with shipwrecked persons at sea, the infirm and expectant mothers”; a curious collection indeed! Commission draft Art. 19.

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ticular. These recommendations, concerning visual (Red Cross emblem, flashing blue light) and non-visual identification (radio message, prefixed by the word “MEDICAL”, transmitted on an agreed or specific frequency at frequent intervals; use of Second Surveillance Radar) were largely followed by the Commission. In particular, the Commission agreed that the use of these various means of identification should be recommended rather than prescribed, except for the use of the Red Cross emblem in case of agreed overflight of enemy-controlled territory. For the rest, the “Recommended International Standards, Practices and Procedures for the Identification and Signalling of Medical Aircraft” were annexed to the set of draft Articles elaborated by the Commission. While it thus proved feasible to find acceptable solutions for the technical problem of identification of medical aircraft, the Commission encountered far greater difficulties in its attempts to settle the question of principle of whether the protection of medical aircraft should be extended beyond the limits set in 1949. Of course, it was not difficult to agree that in the meantime, technical developments had vastly increased the usefulness and importance of medical air transport both in the battle area and in the rear. Nor could there be doubt that the articles of the First and Fourth Geneva Conventions of 1949 protecting aircraft exclusively employed for the removal of wounded and sick, the infirm and maternity cases, and for the transport of medical personnel and equipment, had largely remained a dead letter since in practice aircraft are rarely if ever permanently employed only for these purposes. Now, whereas the extension of the category of protected aircraft with aircraft only temporarily employed on a medical mission found ready acceptance in the Commission, a sharp division of opinion became apparent about the possible effect, in terms of a relaxation of the conditions for protection, to be awarded the increased usefulness of medical aircraft. One group of experts (with the Americans foremost among them) wanted to do away to the maximum with the requirement, embodied in the Geneva Conventions, of previous agreement between the belligerent Parties about the height, time and route of any flights of medical aircraft. In particular for the battle area they advocated a right for medical aircraft to operate subject only to tacit agreement or even without any prior agreement. These views were however severely criticized by another group of experts, first of all from developing countries, who advanced the curious argument that such a freedom of action for medical aircraft would discriminate against “small States and liberation movements” which “did not have modern technical means of air transport.” This argument not only fails to appreciate that (as observed by an expert from the first group) “under the principle of 23 24 25 26 27

Para. 1.66. Articles 36 and 37/I, 22/IV. Para. 1.72, Commission draft Art. 23. CE/COM I/1; para. 1.87. Para. 1.67.

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non-discrimination the wounded of both sides benefit from rapid air evacuation” but also that the weaker or technologically less advanced Party nonetheless may have medical aircraft operating on its side, and the chance of this happening would be greatly enhanced if the organizations likely to furnish such aid could count on a rule protecting their aircraft from direct attacks. Be this as it may, another argument of a totally different order was that a Party to the conflict would regard the medical aircraft of the adversary as enemy aircraft in the first place, and to grant such aircraft a right of overflight without prior specific agreement would be tantamount to creating a grave risk of their being used for purposes of reconnaissance or other hostile acts endangering the position of the Party concerned. The outcome of the debate was that the views of those opposing an unqualified freedom of action for medical aircraft prevailed. Nonetheless, the qualifications ultimately accepted by the Commission amounted to a considerable improvement of the situation created in 1949. Prior agreement would only be required for flights “over territory physically under the control of the adverse Party” or “in the forward part of the battle area under the control of friendly forces, and in areas where such control is not clear.” Agreement, between the “competent authorities” and in the case of the battle area between the “local military authorities”, could come about “in every possible way” and without any formalities being required. And the draft Article on the battle area provides expressly that “even if prior agreement has not been obtained, a medical aircraft shall not be the object of attack by any person who has positively recognized it as a medical aircraft.” The last item on the agenda of Commission I, the position of national Red Cross societies and other humanitarian bodies, did not give rise to much controversy. The Commission eventually adopted a text prescribing that Parties to a conflict “shall extend to the National Red Cross (Red Crescent, Red Lion and Sun) Societies and to International Red Cross bodies facilities and assistance necessary for the performance of their humanitarian activities to be carried out in accordance with the Red Cross principles as defined by International Red Cross Conferences.” “Humanitarian activities” were explained to mean “medical relief and other purely humanitarian activities to be carried out impartially in favour of victims of armed conflicts.”

28 29 30 31

Ibid. Ibid.; see also para. 1.87. Commission draft Articles 25, 26. Paras. 1.106-1.109 and annexed draft Article.

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Commission III

The parts of Draft Protocol I to be examined by Commission III were entitled “combatants” and “civilian population”; taken together, these items encompassed a major part of the “law of The Hague”. Besides these subjects, the Commission had on its agenda the protection of journalists on dangerous missions. The controversial nature of many of the questions before Commission III prevented its adopting a procedure as technically perfect as the one applied by Commission I. Instead of having a drafting committee in the true sense, the Commission had to content itself with setting up a Co-ordinating Committee, with the far more modest task of assisting the authors of the many amendments introduced in the course of the debate in reconciling, wherever possible, their different points of view in order to reduce the number of amendments. There was, moreover, no question of more than one reading of the draft Articles, so that combined amendments resulting from the efforts of the Co-ordinating Committee or of other, informal working groups were not examined by the Commission if (as would normally be the case) the discussion on the draft Article in question had already been closed. The conclusion is that Commission III, although discussing on the basis of concrete draft Articles, did not come anywhere near the stage of actual drafting (except for the specific subject of civil defence organizations, which was examined in detail by a Sub-Commission set up for that purpose). Notwithstanding all that, the work of Commission III should certainly be positively appreciated. The discussions were generally held in a constructive spirit and, whilst the precise meaning or the elaboration into detailed rules of the basic principles set out by the ICRC might be a matter of controversy, the principles themselves were not really contested. In particular, the principles of limitation of means of warfare and of distinction between belligerents and civilian population found the widest possible acceptance, and there was a general readiness to go further than a mere reaffirmation of these basic principles (although obviously the length to which different experts wanted to go in specific cases differed widely). As noted above, the greater part of the subject-matter before the Commission belonged to what traditionally is called the law of The Hague. The Draft Protocol was, however, described both in its title and in its opening Article as supplementary to the Geneva Conventions of 1949, and its drafters had studiously refrained from so much as hinting in the text at a possible relationship with the Hague Conventions of 1899 and 1907 respecting the Laws and Customs on Land, with annexed Regulations. That such a relationship did in fact exist was abundantly plain; indeed, the representative of the ICRC in introducing the Part concerning “combatants” pointed out that the ICRC had considered it useful to reaffirm certain principles of the Hague Regulations by reproducing them with the least 32

Para. 3.5.

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possible changes in Draft Protocol I. Not surprisingly, many experts pointed to the necessity of a clarification of this relationship. Whether this will require no more than a general formula such as the one found in Article 154 of the Fourth Geneva Convention of 1949, or rather a provision spelling out in some greater detail the impact of the Protocol on specific Articles of the Regulations, will be a matter for further study. Under the heading “combatants” the Commission examined successively the issues of weapons, methods of warfare and treatment of certain specified categories of enemies. With respect to weapons, the ICRC had refrained from suggesting any specific prohibitions. Instead, it had confined itself to proposing a reaffirmation of the principles, expressed in Articles 22 and 23(e) of the Hague Regulations, that belligerents have no unlimited choice of means of warfare and that it is forbidden to use weapons calculated to cause unnecessary suffering – or, the ICRC proposal added, particularly cruel methods and means: a phrase which on account of its considerable vagueness was received with something less than enthusiasm in the Commission. In addition to these two principles it was proposed to lay down, in language borrowed from the Martens clause in the preamble to the Hague Convention respecting the Laws and Customs of War on Land, of 1899/1907, that in cases not provided in the Protocol and pending the adoption of fuller regulations “the principle of humanity and the dictates of the public conscience shall continue to safeguard populations and combatants.” In explanation of this marked reticence, a representative of the ICRC argued that other fora were occupied with the problems of arms limitations and disarmament, and so far it had never been attempted to include prohibitions against specific weapons (which were liable to be subject to reprisals or even reciprocity) among the absolute norms of the Geneva Conventions. He also pointed out that the effect of the Geneva Conventions and the Protocol already was indirectly to limit or prohibit the use of weapons by imposing respect for certain categories of persons or objects. If, therefore, specific weapons prohibitions were considered necessary, he would prefer to see these incorporated in a separate instrument. These views were shared by a number of experts who, though convinced of the cruelty of many modern means of warfare, were not ready to accept prohibitions of certain such means in the context of the Draft Protocol. However, this group accepted without reserve the principles outlined in the ICRC proposal and even made the interesting suggestion to add a paragraph laying down that “in the development of new weapons or methods of warfare States have an obligation to determine whether the use of a particular new weapon or method of warfare will 33 34 35 36

Para. 3.7. Para. 3.13. ICRC draft Art. 30 para. 3. Para. 3.14.

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be compatible with the principle that methods and means of warfare shall not be employed in a manner calculated to cause unnecessary suffering.” The effect of this clause would be to shift the discussion about the legality or illegality of certain means of warfare from the courtrooms to the drawing table, that is, from the judging of weapons actually used to the decision whether to produce them at all. And an important side-effect would be that the clause would do away once and for all with the argument, used even at the time of the nuclear attacks on Hiroshima and Nagasaki, that new weapons are not covered by pre-existing rules of the law of war. Those other experts who considered the Article as drafted by the ICRC insufficient tabled a number of amendments aimed at broadening its scope. The proposals ranged from the express prohibition of nuclear, bacteriological and chemical weapons, through the general prohibition of “means and methods which affect military objectives and protected persons or civilian objects indiscriminately” or which “destroy the natural human environmental conditions”, to the express prohibition of delayed-action weapons, incendiary weapons containing napalm or phosphorus, and fragmentation bombs. The authors of the last-mentioned amendment argued that, whereas the aim of disarmament talks (where strategic considerations prevail) is to achieve the reduction or elimination of the stockpiles of weapons while maintaining the balance between the main opponents, the present ICRC conference started from humanitarian concerns and would therefore be fully justified in seeking the prohibition of the use in war of certain cruel weapons. An argument of doubtful value, since the prohibition of wartime use of certain weapons has as much the character of a disarmament measure – and will be assessed as such from the point of view of its effect on the military balance – as prohibitions against the production, stockpiling etc. of weapons. One conclusion emerging with particular clarity from the debate on weapons was that the subject required further study. In accordance with this conclusion, the ICRC was asked, first by a number of experts in Commission III and subsequently by many speakers in the closing session of the Conference, to con37 38 39

40 41 42

CE/COM III/C 56, introduced by the Federal Republic of Germany, Australia, Belgium, Canada, the United States and the United Kingdom. See also para. 3.21. CE/COM III/C 17 (Romania), CE/COM III/C 44 ( Jordan); para. 3.18. CE/COM III/C 2 (Poland), CE/COM III/C 6 (German Democratic Republic, Hungary, Czechoslovakia), CE/COM III/C 17 (Romania), CE/COM III/C 33 (Egypt, Finland, Mexico, Norway, Sweden, Switzerland, Yugoslavia), CE/COM III/C 44 ( Jordan), CE/COM III/C 57 (Spain); para. 3.19. CE/COM III/C 2 (Poland), CE/COM III/C 6 (German Democratic Republic, Hungary, Czechoslovakia), CE/COM III/C 17 (Romania); para. 3.19. CE/COM III/C 33 (Egypt, Finland, Mexico, Norway, Sweden, Switzerland, Yugoslavia). Para. 3.20.

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vene in the course of its further preparations for a diplomatic conference a meeting of legal, military and medical experts to examine “the question of express prohibitions or limitations of use of such conventional weapons as may cause unnecessary suffering or may be indiscriminate in their effect.” Among the draft Articles relating to methods of warfare, the Article prohibiting perfidy deserves some attention. The text proposed by the ICRC contained both general definitions of perfidy and ruses of war, and specific examples of each of these notions. Acts of perfidy were defined as “unlawful acts betraying an enemy’s confidence”, ruses of war as “acts which, whilst infringing no recognized rule, are intended to mislead the enemy or to induce him to act recklessly.” These general definitions, which unquestionably are of a nature to clarify the notions at issue, apparently were acceptable in principle to many experts: most amendments related to the lists of examples. A general criticism of the definition of perfidy concerned the word “unlawful”, which was considered superfluous. A rather more drastic change was proposed by a group of experts from nine countries who wanted to define perfidy as “acts designed to mislead the adversary into the belief that protection under international law will be granted.” While this may seem an even closer approximation of the perfidious act than the mere reference to “acts betraying an enemy’s confidence”, it is in reality a rather more confusing formula. What is the adversary led to believe: that he will be granted protection, or that he will himself have to grant protection? The latter possibility could only with difficulty be brought under the language used; yet, several of the examples given (such as the feigning of a situation of distress or the disguising of combatants as civilians, with the intention of committing or resuming hostilities) are precisely instances where the supposedly protected party is the deceiver. Indeed, the term “protection under international law” seems far too technically precise to be of any great use in the present context. Two matters were of particular interest in the draft Articles relating to the treatment of enemies: the fate of occupants of aircraft in distress, and the position of guerrilla fighters. As for the first-mentioned subject, the ICRC proposed to provide that such persons “who parachute to save their lives, or who are compelled to make a forced landing, shall not be attacked during their descent or landing unless their attitude is hostile.” While the principle underlying this draft rule was widely accepted, its wording gave rise to much criticism, as it seemed particularly difficult to determine such elements as a “hostile attitude” of an aircraft occupant parachuting down or making a forced landing. An amendment which 43 44 45 46

CE/SPF/2 (proposal introduced in plenary session by 19 delegations); paras. 3.20, 5.8-5.11. Draft Art. 31. CE/COM III/C 70 (Federal Republic of Germany, Australia, Belgium, Brazil, Canada, United States, Israel, Philippines, Republic of Viet-Nam); para. 3.26. ICRC draft Art. 36.

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drew considerable support was to replace the entire complicated formula with a provision to the effect that “the occupants of an aircraft in distress shall never be attacked when they are obviously hors de combat” – a formula as lapidary as the previous one was complicated. A Dutch amendment of a totally different order and which approached the matter from an eminently practical point of view was to prescribe that occupants of aircraft in distress parachuting down with orange-coloured parachutes would not be attacked. The orange-coloured parachute would then act as a sort of distinctive sign indicating that its bearer (or, rather, its pay load) was, in the terms of the first amendment, “obviously hors de combat”. As was only to be expected, the question of the position of guerrilla fighters gave rise to far greater controversy. True, the principle expressed in the ICRC proposal that guerrilla fighters taking part in an international armed conflict should be treated as prisoners of war was not itself contested. It was argued that conferring such treatment could contribute to preventing an escalation of violence, and in the past it had never proved possible to stop guerrilla warfare by refusing prisoner-of-war treatment to captured guerrilla fighters. But opinions diverged sharply when the conditions of such treatment were discussed. The ICRC proposal listed three conditions, which amounted to a mitigated version of the conditions spelled out in Article 1 of the Hague Regulations and Article 4A(2) of the Third Geneva Convention of 1949: (a) compliance with the requirements of the principles of the law of armed conflicts and of the rules of the Protocol, (b) in their operations to show their combatant status by openly displaying their weapons or to distinguish themselves from the civilian population by wearing a distinctive sign or by any other means, and (c) being organized and under the orders of a commander responsible for his subordinates. Each of these conditions was criticized from two sides, one side aiming to make the wording more flexible or even to delete the whole condition, and the other wanting to restore the more stringent language of the Hague Regulations. It may perhaps be said that a majority in the Commission tended towards greater flexibility, but the number and weight of those holding the opposite view was by no means negligible. To reconcile these divergent tendencies seems out of 47 48 49 50

CE/COM III/C 30 (Belgium); para. 3.44. CE/COM III/C 8; para. 3.45. ICRC draft Art. 38. Paras. 3.64-3.66. A Norwegian amendment (CE/COM III/C 15) went farthest in doing away with the existing conditions; it replaced these by the following: that the level of hostilities make application of the Protocol a humanitarian necessity, that the Party to the conflict to which the guerrillas are attached declare itself ready to apply the Geneva Conventions and the Protocol, and that the guerrilla fighters be organized and under the orders of a commander responsible for the conduct of his subordinates. Least generous towards the guerrillas were the experts of the United Kingdom (CE/COM III/C 42).

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the question; the only solution may lie in finding a compromise formula which is acceptable to a sufficiently great number of Governments and which is not so repugnant to other Governments that it would deter them from ratifying the Protocol. A basis for such a compromise might be found in the text proposed by the ICRC and in the common concern of all those taking part in the debate that the requirements for prisoner of war treatment should effectively contribute to protecting the civilian population against the dangers of hostilities. The second main item before Commission III, being the part of Draft Protocol I entitled “civilian populations”, gave rise to interesting discussions about the general principle of protection of the civilian population and objects of a civilian character, the definition of these concepts as well as of the related concept of “military objective”, and the detailed rules for protection of the categories mentioned (subdivided into general and special protection). The general principle of protection of the civilian population and objects of a civilian character against the dangers resulting from hostilities found the widest possible adherence. A question was whether it should find expression in a separate Article (as the ICRC had proposed). According to some experts, this might lead to ambiguity since the detailed rules for protection, contained in subsequent draft Articles, repeated the principle in rather less absolute terms. An amendment of the same purport was to tone the principle down to the engagement that parties to a conflict “shall, to the maximum extent feasible, endeavour to protect” the categories mentioned. On the opposite side of the scale were two amendments which aimed at strengthening the principle. One, introduced by the experts of Norway, placed it under the aegis of an even more basic principle that “fundamental human rights continue to apply in all situations of armed conflicts.” The other was submitted by the experts of Romania, a delegation which exerted itself throughout the Conference to obtain maximum protection for the civilian population of an invaded country. Their proposal at this juncture was to provide “effective and complete protection” for the civilian population against “the dangers resulting 51

52 53 54

Paras. 3.57, 3.60. The different ways in which this protection can be sought, are demonstrated in two Norwegian amendments. One, quoted in the previous footnote, virtually abolished the traditional conditions for POW treatment for guerrillas; the other proposed to lay down in the draft Article on perfidy that “the creation, prior to attack, of an impression with the enemy of being a non-combatant” would be among the acts betraying an enemy’s confidence and therefore constituting perfidy (adding, however, that “attacks from ambush, even if carried out in civilian clothing are not prohibited”) (CE/COM III/C 55). – On the question of treatment of guerrilla fighters, see also Michel Veuthey, “La guérilla: Le problème du traitement des prisonniers”, in Annales d’études internationales (1972) at p. 119. ICRC draft Art. 40. CE/COM III/PC 2 (United States); para. 3.111. CE/COM III/PC 37; para. 3.112.

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from military operations.” This formulation comes as close as possible to the (utopian) idea of absolute immunity for the civilian population. The question of definition was discussed on the basis of ICRC proposals which gave a negative definition of the civilian population (being all those who are neither members of the armed forces nor take a direct part in hostilities) and positive definitions both of objects of civilian character and of military objectives (respectively, all objects which by their nature or use are destined for the civilian population, and those objectives which by their nature or use contribute effectively and directly to the military effort of the adversary, or which are of a generally recognized military interest). It was generally agreed that the civilian population should be defined in a negative manner. Some feared, however, that the definition proposed by the ICRC would have the effect of creating an intermediate category of persons belonging neither to the civilian population (because they would take a direct part in hostilities) nor to the recognized belligerents (because they would not meet the conditions for such status as spelled out in the Hague Resolutions, the Third Geneva Convention of 1949, and the Draft Protocol). They therefore proposed to define civilians as all persons not falling within one of the categories enumerated in the relevant Articles of the Third Convention and the Draft Protocol, and to provide furthermore that the persons so defined would enjoy the protections set out in the part of the Draft Protocol dealing with the civilian population “unless and for such time as they take a direct and immediate part in hostilities.” The “protections” mentioned in this proposal are those against direct attack and other forms of wartime violence. In this respect, the difference between the two proposed definitions seems to be that the latter formula would leave no doubt that a participant in hostilities not qualifying for prisoner-of-war status cannot be made the object of attack outside the period of his “direct and immediate” participation, whereas the language used in the former proposal would leave room for a slightly less benevolent interpretation. It should be pointed out that neither of the two proposed definitions had a bearing on the question of the treatment after arrest or capture of such “illegitimate belligerents”. In this connexion it is worth mentioning that in the course of the discussions on prisoner-of-war treatment for guerrilla fighters it had been urged from many sides expressly to provide that “any person not entitled to more favourable treatment under the Conventions and the present Protocol shall, in the event of his capture, internment, or detention in relation to the armed conflict, be afforded treatment not less favourable than that laid down in Article 3 common to the Conventions” (i.e., the Article laying down minimum standards for the event 55 56 57

CE/COM III/PC 42; para. 3.112. ICRC draft Articles 41-43. CE/COM III/PC 78 (Federal Republic of Germany, Australia, Belgium, Canada, United States, United Kingdom); paras. 3.117, 3.123.

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of non-international armed conflict). A provision to this effect would obviously supplement either of the proposed definitions of the civilian population, by extending the minimum protection of Article 3 to those who under either formula would be excluded from the more complete protection accorded prisoners of war or real civilians. The other major problem in defining the civilian population was the scope to be given such a definition. Should it cover those who, although not taking part in the actual fighting, contribute to the war effort in other important manners? This led, first of all, to a demand for clarification of the concept of direct participation in hostilities, and it was suggested that this might be illustrated by giving examples of activities constituting such participation (and the expert in question mentioned here spying, recruitment, propaganda and the transport of arms and of military personnel, as opposed to such activities as the providing of aid, medical care or food supplies for protected persons such as wounded guerrilla fighters). It also led to a debate about the position of the workers in the war industry and similar groups. There was widespread support for the position, taken by the ICRC, that such categories of persons cannot themselves be made the object of direct attack (although they run all the risks of the situation whenever they are present in the factories, laboratories and similar localities which may be regarded as military objectives and attacked as such). The Romanian experts even wanted to make the point explicit by providing that “persons whose activities could contribute directly to the military effort do not thereby lose their status as civilians.” In fact, only the experts of the Republic of Viet-Nam formulated a diametrically opposite view when they proposed to define civilians as those persons not covered by Article 4 of the Third Convention “and who, moreover, are not participating in the war effort of one of the Parties to the conflict.” An amendment introduced by the Philippine experts, finally, would exclude government officials and employees of the Ministry of Defence from the category of civilians. An element of considerable importance in the draft Article of the ICRC was the proposed rule that in case of doubt as to their status persons would be presumed to belong to the civilian population. This rule, when faithfully applied, would have a marked effect on certain aspects of contemporary military practice, especially in guerrilla-type situations; in fact, it would do away with the current

58 59 60 61 62

CE/COM III/C 63 (Federal Republic of Germany, Australia, Canada, United States, United Kingdom); paras. 3.58, 3.68. Para. 3.116. CE/COM III/PC 43; para. 3.120. CE/COM III/PC 68. CE/COM III/PC 21.

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(and often understandable) practice of “shooting first and asking questions later.” Yet, the proposal met with no opposition from any side in the debate. As regards the definitions of objects of a civilian character and military objectives, I confine myself to the question of what decides the civilian character of an object: its destination and use, or the military advantage to be gained by its destruction? The ICRC proposal was slightly confusing in that it provided, on the one hand, that objects of a civilian character are those objects which by their nature or use are destined for the civilian population, and, on the other hand, that objects of a civilian character shall never be attacked “provided they are not used directly and mainly for a military purpose.” So much is in any event clear from these formulas that the element of actual use played a dominant role in the proposals of the ICRC. This criterion of use was accepted as fundamental by a number of experts, and several amendments merely aimed at bringing out more clearly what, according to the experts in question, were its essential characteristics. Numerous experts, however, wanted to supplement this with the criterion of military advantage. A characteristic proposal was to define military objectives as “those which by their nature or use contribute effectively and directly to the military effort of the adversary, or the complete or partial destruction, capture or neutralization of which, in the circumstances ruling at the time, offer a distinct military advantage.” “Civilian objects” would then be those objects which are not military objectives. The last-mentioned definition is certainly more in line with technical military thinking. Its weakness from the legal point of view lies in the wide power of appreciation it leaves to military commanders. An expert who was strongly opposed to the proposed amendment pointed out that “the military commander could well argue that the destruction even of purely civilian objects, in particular circumstances, could give him a distinct military advantage.” True; to take a classic example, a house may change into a military objective not only when it is used by the adversary, e.g., as a headquarters, an observation post or a location where snipers are posted, but also when its destruction is necessary in order to clear a field of fire. While from one point of view this is no more than a simple military fact, from another point of view it constitutes a threat to the very idea of distinction on the basis of objective criteria between objects that may and objects that may not be attacked.

63 64 65 66 67

ICRC draft Art. 41 para. 4. ICRC draft Articles 42, 47. CE/COM III/PC 4 (United States), CE/COM III/PC 40 (Denmark); paras. 3.129, 3.133. CE/COM III/PC 115 (Australia, Belgium, Korean Republic, United States, Philippines, United Kingdom). Para. 3.141.

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It remains to be seen whether it will prove feasible to find definitions for the notions of military objective and civilian object which are sufficiently objective to inspire confidence to the non-military and sufficiently flexible to satisfy the military. Under the heading of general protection of the civilian population, the ICRC had in particular proposed express prohibitions of terror attacks, indiscriminate attacks and reprisal attacks. The principle of these prohibitions was widely accepted, but their formulation gave rise to quite some difference of opinion. Thus, while the Romanian experts wanted to prohibit “acts of terrorism” and “acts which are likely to harm civilians and military objectives alike”, a joint proposal of six Western delegations referred to “attacks intended to terrorize the civilian population” and “attacks which are intentionally launched indiscriminately against civilians and military objectives.” Apart from the difference between “acts” and “attacks” (the latter being a specific form of acts, which the ICRC in its proposals had defined as “acts of violence, whether offensive or defensive, committed against the adversary by means of weapons, in the course of hostilities”), the proposed formulas differ most conspicuously in that the former is objective in character whereas the latter is made dependent on the subjective element of intention of the attacking party. While a lawyer might be inclined to prefer the objective definition since that would prevent the attacker from all too easily escaping responsibility by merely denying intention, one may on the other hand have every understanding for the wish to introduce the element of intention because this would, the other way round, diminish the possibilities for the attacked party to make propagandistic abuse of the emotionally loaded terms of “terrorism” and “indiscriminate attack”. An additional remark is that the meaning of the latter terms is far from certain. Thus, the term “terrorism” is used to indicate the most diverse activities, ranging from the assassination of a local political leader to the systematic bombardment of enemy cities. And the range of possible interpretations of what constitutes “indiscriminate” attack can best be demonstrated by juxtaposing the original ICRC proposal which referred to “attacks which, by their nature, are launched against civilians and military objectives indiscriminately” and the understanding of the experts from the U.S.A. that “indiscriminate attacks are those attacks which have no specific military objective.” Obviously, the latter formula was designed to avoid the effect which some experts feared the ICRC proposal would have, of indirectly forbidding certain weapons “which it was not 68 69 70 71 72

CE/COM III/PC 46. CE/COM III/PC 106 (Federal Republic of Germany, Australia, Belgium, Canada, United States, United Kingdom); paras. 3.159, 3.160. ICRC draft Art. 44. ICRC draft Art. 45(3). CE/COM III/PC 110.

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within the Commission’s competence to study.” Be this as it may, it seems in any event important that these concepts are somewhat clarified in future deliberations. The question of reprisal attacks gave rise to some controversy. The ICRC had made a distinction in its proposals between the civilian population and objects of civilian character; whereas reprisal attacks against the civilian population would be prohibited, only the special category of “objects indispensable to the survival of the civilian population” would enjoy a similar protection. Objections against this differentiation had already been raised at the Vienna Conference of Red Cross Experts, where the present author had argued that among the forms of belligerent reprisals thus far not outlawed by any existing treaty provision the one type realistically to be expected in future armed conflict was reprisals against the civilian population; and, if it was now thought feasible to prohibit this type of reprisals, a similar prohibition could certainly be formulated with respect to reprisals against all objects of civilian character without exception. Several experts at the Geneva Conference endorsed this view and proposed the complete prohibition of all reprisals against objects of civilian character as well as against the civilian population. Apart from this question of the scope of a possible prohibition, another matter of even more immediate concern was whether the principle of the prohibition would be accepted at all. Obviously, this question is narrowly connected with the “counter-city strategy” of the nuclear Powers. Notwithstanding the existence of this strategy and the widespread recognition of its significance for the prevention of major war, the UN General Assembly had already in December 1970 included the prohibition of reprisals against the civilian population among the principles of the law of armed conflict enumerated in its Resolution 2675 (XXV) on Respect for Human Rights in Armed Conflicts. Likewise, during the debate in Commission III many experts declared themselves in favour of the prohibition, proposed by the ICRC, of “attacks directed against the civilian population or individual civilians by way of reprisals.” However, acceptance of the proposed rule was certainly not unanimous. Some experts confined themselves to suggesting that the matter really fell within the competence of another Commission (viz., Commission IV, which had the general question of reprisals on its agenda, under the heading of general provisions concerning the execution

73 74 75 76 77 78

Para. 3.155; CE/COM III/PC 50 (Italy). ICRC draft Articles 45(4) and 48(1). Report of the Vienna Conference (supra, note 14), p. 34. CE/COM III/PC 32 (German Democratic Republic), CE/COM III/PC 47 (Romania); para. 3.177. See op. cit. note 1, at p. 88. Para. 3.161.

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of the Geneva Conventions and the Draft Protocol). Two delegations went further: the experts of the United States proposed to delete the provision in question, and the experts of the United Kingdom made the explicit suggestion to exclude from the proposed prohibition reprisal attacks against the civilian population “in response to deliberate attacks on the civilian population or individual civilians by the adversary.” This last-mentioned suggestion was strongly contested by another expert, who argued that “the rule of reciprocity did not apply” in this case. True; but the peculiarity of reprisals is precisely that they do not depend for their justification on any “rule of reciprocity”. The joint proposal eventually introduced by six Western delegations, including the United Kingdom and the U.S.A., was silent on the question of reprisals. As was explained in a note, the co-sponsors had not reached agreement on a proposal on their prohibition. It is to be hoped that the relatively small number of States which this time were unwilling, or hesitated, to subscribe to a prohibition of reprisals against the civilian population, will reconsider their position. For, no matter how useful or necessary the nuclear balance of terror and the counter-city strategy may be for the prevention of major war, it seems hard to deny that to carry through the threat and in fact to annihilate a significant part of the enemy civilian population would amount to nothing but senseless destruction. Under the same heading of general protection falls the question of precautionary measures connected with (the possibility of ) attacks against military objectives. Under this heading, the ICRC had listed, on the side of the attacker, target identification and warning of the civilians threatened as well as the duty to avoid disproportionate damage. On the side of the attacked party, the general duty would be to take the necessary precautions against dangers resulting from attacks. The discussion on these topics showed again the difference in appreciation resulting from a military or a humanitarian approach. For the military, the proposed rules would soon appear too restrictive, whereas the advocate of the humanitarian approach would still be less than satisfied. As a typical example of the military approach I mention an amendment to the proposed rule on proportionality, introduced by the experts of the United States. According to the proposal of the ICRC, the obligation would be to refrain 79 80 81 82 83 84 85 86

Ibid. CE/COM III/PC 6. CE/COM III/PC 29. Para. 3.161. See on this question this author’s Belligerent Reprisals, 1971, in particular pp. 24-25 and 362-363. CE/COM III/PC 106. See op. cit. note 82, pp. 353-361. ICRC draft Articles 49-51.

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from ordering or launching an attack when the probable losses and destruction suffered by the civilian population and objects of civilian character would be disproportionate to the concrete military advantage sought. The sponsors of the amendment wanted to replace this by the formula that “those who plan military operations shall take into consideration the extent of destruction and probable casualties which will result and to the extent consistent with the necessities of the military situation seek to avoid such casualties or destruction.” Obviously, to “seek to avoid” is a far less stringent obligation than to “refrain”, and the “concrete military advantage sought” leaves far less room for discretionary assessment than the “necessities of the military situation”. An example of the opposite tendency may be seen in the amendment proposed by the Romanian experts to the provision in the ICRC draft that attackers “shall warn, whenever circumstances permit, and sufficiently in advance, the civilians threatened, so that the latter may take shelter.” The amendment was to delete the words “whenever circumstances permit”. This would change the conditional obligation to warn into an absolute one, but at the same time the resulting rule would be only too likely to be broken whenever the situation would require a surprise attack. Indeed, it was even argued by opponents of the amendment that surprise attacks often were less damaging to civilians. At this juncture in the debate, one expert confessed that he had great difficulty to reconcile the two tendencies; however, he added, “in so far as the present Conference was concerned, the accent had to be laid on the protection of civilians.” While this might seem a commendable attitude and indeed a faithful rendering of the purpose of the Conference, it should be recognized that whenever the “accent on the protection of civilians” would assume the proportions of an over-emphasis on the humanitarian aspects of the situation to the detriment of the military interests involved, the result would be a rule highly satisfactory from a humanitarian point of view but which in practice would be set aside at the earliest opportunity. Here as in the law of armed conflict in general the only solution lies in a careful weighing of the two conflicting interests and in doing equal justice to both. Commission III turned next to the subject of localities and objects under special protection. As for localities, the Draft Protocol made a distinction between non-defended and neutralized localities, the former being situated in a zone of military operations and the latter outside such a zone. In either case, special protection would rest on agreement and demilitarization. All armed forces and other combatants as well as mobile weapons and other mobile military equip87 88 89 90

CE/COM III/PC 11. CE/COM III/PC 54; see also CE/COM III/PC 46 of the same delegation, and cf. CE/COM III/PC 89 (Spain). Para. 3.190. Para. 3.191.

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ment would have to be evacuated from such localities, and fixed military installations would have to be left unused. For the neutralized locality, an additional condition would be the ceasing of any activity connected with the military effort. Agreement could be express or tacit or could even consist of reciprocal and concordant declarations. In the case of a neutralized locality there would again be an additional requirement, viz., that the agreement would fix the methods of supervision. These differences between the two types of specially protected localities are understandable: in the system of the ICRC the non-defended locality would be an ad hoc arrangement for the protection of civilians, wounded and sick finding themselves in a zone of actual combat and therefore exposed to immediate danger, whereas the neutralized locality would extend protection to persons not so immediately exposed to the dangers of war except from the air. Indeed, the proposed article on non-defended localities amounted to an elaboration of the summary rule in Article 25 of the Hague Regulations on Land Warfare of 1899/1907 prohibiting the attack or bombardment, by whatever means, of undefended towns etc.; at the same time, it developed Article 15 of the Civilians Convention of 1949 (where the localities in question are, however, indicated as “neutralized zones”). The proposed Article on neutralized localities was in fact an improved version of the provisions on “hospital and safety zones and localities” in Articles 23 of the 1949 Sick and Wounded Convention and 14 of the 1949 Civilians Convention. The subject roused but limited interest among the experts and the number of written amendments was exceedingly small. Actually, only a group of five EastEuropean delegations (from Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary and Poland) tabled comprehensive amendments to both Articles which in fact departed radically from the system proposed by the ICRC. The co-sponsors started from the premise that attacks on non-defended localities, whether situated in or outside a zone of military operations, are already prohibited under existing international law. Therefore, agreement between the Parties to the conflict was not necessary, and it was only to ensure the better observance of this prohibition that the interested Party could make a unilateral declaration about the character of the locality in question. As was observed in the debate, “[i]n the absence of a reply from the attacking Power, the effect of such a declaration would be that the attacking Party could not claim ignorance of the non-defended state of the city in question.” According to the same expert, a further effect would be to establish a “presumption of no defence” in favour of the locality. Here, however, an obvious difficulty is that the attacking Party can hardly be required to believe each and every unilateral declaration its opponent 91 92 93

ICRC draft Articles 53, 54. CE/COM III/PC 113, 114. Para. 3.212.

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chooses to make. It would seem, therefore, that in the absence of outside supervision the only effect of such a unilateral declaration would be to prevent the attacking Party from claiming ignorance as to the fact that the declaration had been made. It is precisely for this reason that the system proposed by the ICRC and which included agreement in one form or another seems vastly preferable. In the conception of the five delegations amendments, the idea of neutralization would apply exclusively to areas rather than localities. Such areas could, again, be situated in or outside a zone of military operations. Agreement would, however, be a prerequisite for neutralization, and this would have to make provision for supervision. A striking feature of these alternative proposals is that they stuck much more closely to the pre-existing law than did the ICRC draft Articles. Nor was this the only occasion where experts of East-European countries displayed a marked preference for previously accepted treaty law. Besides localities (or areas), also categories of persons can be the object of special protection. In this respect, the ICRC had confined its proposals to two categories: children, and civil defence organizations; this in conformity with its firm conviction that proliferation of special protection would be tantamount to no special protection at all and might even weaken the general protection of the civilian population. Besides, it transmitted to the Commission the latest results of the deliberations in the United Nations Commission on Human Rights concerning protection of journalists engaged in dangerous missions. Commission III followed the lead of the ICRC in exerting utmost caution with respect to this modality of special protection, this in sharp contrast with its 1971 predecessor which had excelled in naming ever more categories of persons who might qualify as possible candidates. This time, only the members of police forces were mentioned anew by the Swiss experts, who pointed to the necessity of guaranteeing their unhampered functioning in the event of enemy occupation. The idea of special protection for children, supported in principle by the experts, was elaborated in the ICRC draft into a set of rules about the safeguarding of children (i.e., the duty to take care that young children do not take part in hostilities); the pronunciation or execution of the death penalty on children of under eighteen years at the time of the offence, on mothers of infants or 94 95 96

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ICRC draft Articles 57-62 and 67-72. Supra, text at note 10. CE/COM III/PC 19; para. 3.233. A completely opposite note was struck by the Romanian amendment CE/COM III/PC 57, which wanted to replace the whole idea of special protection with a reminder that “[m]embers of the civilian population entitled to general protection – women, children, the aged, wounded, sick and infirm – shall receive from the belligerents the necessary assistance and care.” Paras. 3.230-3.232.

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women responsible for their care, and on pregnant women; and the repatriation of children. For the duty to safeguard children the ICRC had proposed three alternative texts, the most important difference being that the first two propositions envisaged only direct participation in hostilities whereas the third proposition equally excluded the employment of children as auxiliaries. In the Commission, the strongest support was for the first of these propositions. An additional paragraph was proposed by the experts of Egypt and the Lebanon who, starting from the realistic observation that children do often take a direct part in hostilities, suggested to lay down that such children when captured would not be held responsible for their participation; instead of being punished, they would be the object of protective measures such as being placed in a re-education institute. This does not seem a particularly felicitous suggestion; whilst already the basic idea of the non-responsibility of young participants in hostilities is likely to be greeted with less than unqualified enthusiasm, the proposed measures of childprotection and re-education (by the enemy!) are certain to evoke the strongest opposition from many quarters. The question of the protection of civil defence organizations was not discussed by the Commission itself but by a Sub-Commission of specialists set up for that purpose. This Sub-Commission eventually expressed itself in favour of a set of draft Articles which differed in one significant respect from the original ICRC proposals: where these had been based on the idea of special protection for the organization as such, the Sub-Commission’s draft Articles put the function of civil defence first and foremost (defined as the “humanitarian tasks to save human lives, relieve suffering, ensure the survival of and provide living conditions for civilians exposed to dangers resulting from hostilities or disasters”). Protection would extend to all organizations charged with these tasks and recognized by the Government, as well as to individual persons who, although not belonging to such organizations, perform such tasks under arrangements organized by their Government. The organizations would not be permitted to have any combat mission, but they could be organized along military lines and be responsible to military authorities. The concept of special protection for civil defence personnel was elaborated into detailed rules both for non-occupied and occupied territory. An element 98 99 100 101 102 103 104

Para. 3.241. CE/COM III/PC 99: para. 3.246. Report of the Sub-Commission: paras. 3.281 et seq. Para. 3.304: Sub-Commission draft Art. 67(1); see also para. 3.295. Para. 3.315: Sub-Commission draft Art. 67(A). Para. 3.310: Sub-Commission draft Art. 67(2). Para. 3.319: Sub-Commission draft Art. 68; para. 3.324: Sub-Commission draft Art. 69.

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of particular importance for the effectiveness of any system of special protection for such a category of persons will of course be its recognizability. In this respect, the Sub-Commission reached agreement on rules governing the use of a distinctive sign but not on the sign itself; this matter was referred back to the ICRC for further study. Commission III discussed the third question under this heading, special protection for journalists on dangerous professional missions in areas of armed conflict, on the basis of the draft articles which the UN Commission on Human Rights had approved in March 1972 as the basis for further work. While some experts had their doubts about the advisability of granting special protection to this category of persons, a majority expressed themselves in favour of the idea, on the grounds that information about the events connected with armed conflicts was in the interest of world public opinion and that such information, and the presence of journalists on the scene, might contribute to a more effective implementation of humanitarian law; viewed thus, the risks incurred by the journalists indeed were in the interests of international society. Commission III lacked the time to enter into any thorough discussion of the detailed rules drafted by the Human Rights Commission and which, elaborating the basic idea, related to such diverse matters as the distinctive emblem and the identity card of the journalists in question, the setting up of an international professional committee, and – last but not least – the specific steps which Parties to a conflict would be obliged to take so as to give substance to the idea of special protection. The debate therefore remained confined to a series of more or less perfunctory remarks about the various rules, with most attention being given to the last-mentioned aspect of the specific obligations of Parties to a conflict. The draft article on this matter was curiously one-sided in that it laid a number of detailed obligations (including the duty to do “all that is necessary to protect [a journalist] from the danger of death or injury or from any other danger inherent in the conflict and in the conduct of all parties to the said conflict” and to “[i]nform him to the extent compatible with military requirements of the areas and circumstances in which he [might] be exposed to danger”) on the Party to the conflict which would have “identified [the] journalist as one who holds a card” and none at all on the other Party. Connected with this was the absence of a duty for the journalist to wear the distinguishing emblem; he would merely be entitled to do so. In other words, no attempt had been made to follow the system of the Geneva Conventions where obligations to respect and to protect are distributed over both Parties. This, as well as the highly detailed nature of the

105 Paras. 3.334, 3.335; para. 3.340: Sub-Commission draft Art. 71. 106 Paras. 3.76, 3.78. 107 Draft Articles 10, 8.

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proposed rules which probably would be difficult for the military authorities to apply, were the points which drew most critical comments. Another aspect worth mentioning is the obligations of the journalists themselves. In the draft articles these were limited to non-interference in domestic affairs and non-participation, whether direct or indirect, in hostilities. This drew the comment that emphasis should also be placed on their duties with respect to the objectivity of the information they transmitted, and (as a representative of the ICRC observed) on their duty to respect the human dignity of victims of conflicts. A final aspect of the work of Commission III concerned relief for the civilian population. The relevant Articles in Draft Protocol I aimed at developing Article 23 of the 1949 Civilians Convention. That Article already makes important inroads on the freedom of belligerents to blockade the enemy territory by providing that they “shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians” even of the adverse Party, as well as the “free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.” The aim now was to extend the range of goods and beneficiaries to cover all relief and the entire civilian population. The necessity of forbidding starvation of the civilian population as a means of warfare was generally recognized. On the other hand, a number of problems are involved in giving effect to this principle. Thus, relief in order to be effective should be competently organized, and both the free passage of relief consignments destined for enemy territory and the admission of such consignments into the territory present delicate problems of supervision and sovereign rights. The Norwegian experts therefore proposed to put all the medical, logistic, economic and legal problems involved before a group of experts to be convened for that purpose by the ICRC in co-operation with the League of Red Cross Societies and the Secretary-General of the United Nations. This suggestion was met favourably in the Commission, and it seems probable that it will be followed by the organizations in question. 2.3

Commission IV

The main task before Commission IV was to discuss the parts of Draft Protocol I dealing with implementation, both of the existing Geneva Conventions and of the Draft Protocol, under the sub-headings of supervision, penal sanctions, repris108 109 110 111

Para. 3.87. Para. 3.90. ICRC draft Articles 63-66. Para. 3.264; CE/COM III/PC 112. See also paras. 5.39-5.41 (final plenary session).

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als and dissemination. The Commission also discussed other general and final provisions and the preamble of the Draft Protocol, as well as a draft Declaration on the Application of International Humanitarian Law in Armed Struggles for Self-determination and a draft Resolution concerning Disarmament and Peace. These latter parts of the discussions will for the most part be passed over in silence. The Commission set up a Drafting Committee of eight members and two similarly limited working groups for specific articles. The general task of the Drafting Committee was to go over the wording and order of the draft articles which the Commission after discussion would refer to it. In a number of instances it moreover received an express mandate to enter into the substance of specific draft articles; for those articles it acted as a working group as well. As a result of this procedure, a number of important improvements were brought to the texts proposed by the ICRC, and in the numerous instances where a diversity of opinion became apparent among the experts the different views were rendered in carefully formulated alternative texts. Supervision, while one of the most important subjects before the Commission, was also among the most delicate ones as it involved such actors besides the belligerent Parties as third States, the United Nations and the ICRC. The 1949 Conventions of Geneva already contain a system of supervision by Protecting Powers or, in their absence, “an organization which offers all guarantees of impartiality and efficacy”; and, if this system fails to be applied, the belligerent Party holding protected persons in its power is obliged to accept “the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers” under the Conventions. In the course of the deliberations at the 1971 Conference of Experts the ICRC had declared itself ready to assume the complete responsibilities of Protecting Powers under the Convention, as these were all humanitarian in character; in other words, it was ready to act as a substitute for Protecting Powers. At the same time, the suggestion to entrust some or other United Nations organ with a supervisory function also found substantial support. The perspective for a significant improvement of the system of supervision seemed therefore bright. It would be an overstatement to say that these high expectations were a hundred per cent realized during the 1972 session of the Conference, but neither can one speak of a complete failure. The principle of supervision and the system embodied in the Geneva Conventions were upheld by an overwhelming majority of the experts; indeed, it was a remarkable feature that the abolition of 112 113 114 115

Para. 4.3; as in 1971, the present author acted as Rapporteur of this Commission. Paras. 4.5-4.7. Articles 8-10 of Conventions I-III (9-11 of Convention IV). 0p. cit. note l, at p. 87.

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the Protecting Powers system was not suggested from any side. On the other hand, especially experts from East-European countries laid much emphasis on the sovereignty of States and their prime responsibility for the correct and bona fide application of the Conventions. On the practical level, virtually all experts flatly rejected any suggestion to make the designation of a Protecting Power a one-sided affair; agreement of the Detaining Power would remain an absolute requirement. There was, however, quite some willingness to accept either the ICRC or a United Nations organ as “automatic fall-back institution” for the event that no Protecting Powers would be designated. This last idea gave rise to some further difficulties: was the ICRC able and willing to accept such a role? And was there a suitable United Nations organ to perform supervisory functions? The first of these questions confronted the ICRC with a difficult problem. On the one hand, it is most eager to see the Conventions faithfully applied and it is certainly willing to contribute to this result to the best of its abilities. The declaration which it made in 1971 must be understood in this light. On the other hand, no one is more aware than the ICRC of the many practical and political obstacles which may be in the way of an effective outside supervision. Hence, while some members of the ICRC were inclined to accept the role of an automatic “fall-back” institution, the majority considered the risk too great that such an automatism on paper would in many cases remain a dead letter and that the ICRC would then be blamed for “failing to realize its legal rights.” In order to avoid this embarrassing situation and the ensuing damage to its reputation, the ICRC finally decided “not [to] accept a formula to the effect that it would be obliged in certain circumstances automatically to act as substitute”; on the other hand, “it did not object to a provision urging the Parties to the conflict to accept in such circumstances an offer on its part to act as such.” And it made clear that “it would make such an offer only under the conditions that its services were acceptable to both Parties and that it would have at its disposal the financial means and manpower required for the task.” Indeed, this point was so crucially important for the ICRC that its President took care to expressly repeat it in his address to the final plenary session of the Conference. All this could not, however, prevent Commission IV including among its proposals for a more effective functioning of the supervision system a paragraph to the effect that in the event of protected persons continuing not to benefit by the activities of a Protecting Power, the ICRC “shall be accepted as a substitute 116 117 118 119 120 121

Para. 4.73. Paras. 4.58-4.59, 4.64. Para. 4.62. Paras. 4.62-4.65. Para. 4.68. Para. 5.46.

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for the Protecting Power.” In the indicative voting at the end of the Commission’s deliberations this formula won even more support than two alternative texts which made the acceptance as a substitute dependent on the ad hoc agreement of both Parties to the conflict. Another aspect of the question was whether the ICRC could be expected to carry out all the supervisory functions of a Protecting Power. In this respect, a number of experts from Arab countries argued that among these functions were the investigation and publication of violations of the Conventions, tasks which the ICRC had consistently refused to perform. The answer of the ICRC was that it was indeed not inclined to assume such functions, as its aim was protection of victims rather than the denunciation of violations; nor, for that matter, did the latter activity fall under the traditional functions of Protecting Powers. This reply, far from convincing the experts in question, strengthened them in their conviction that another body besides the ICRC, preferably a United Nations organ, would be necessary to complete the supervisory system. The idea to entrust a United Nations organ with supervisory functions attracted several other experts, who for the rest did not share their Arab colleagues’ view on the nature of those functions. An obvious difficulty was to find a suitable organ; none of the existing organs seemed particularly suited for the role, and the international climate seemed hardly favourable to the creation of a new one. Eventually, the Egyptian and Norwegian experts introduced a proposal which left the question open, stating merely that the Parties to a conflict could appoint as substitute for Protecting Powers “any organ established or designated by the United Nations for that purpose.” The proposal, and in fact the whole idea of supervision by a United Nations organ, drew, however, only the support of a minority among the members of Commission IV. A final aspect of the question of supervision concerned its application to certain parts of Draft Protocol I. So far, supervision by Protecting Powers had been confined to the part of the law of armed conflict relating to the protection of war victims in the hands of the adverse Party, and it would present no great difficulties to fit into this traditional function those parts of Draft Protocol I which supplemented that part of the law. The situation was different, however, with respect to those parts of Draft Protocol I which “reaffirmed and developed” the so-called law of The Hague relating to such matters as the limitations on the use of means and methods of warfare and the general protection of the civilian population; here, outside supervision was neither a traditional function nor easy to visualize. Yet, both the original ICRC draft and the text drafted by the competent working group referred indiscriminately to the purpose “of applying the Conventions and the present Protocol.” The working group took care to note that the question 122 123 124

Para. 4.80: Working Group draft Art. 6(5); para. 4.81. Para. 4.72. CE/COM IV/48.

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“remained to be studied in the light of the texts that will be drafted” for the relevant parts of Draft Protocol I. For the rest, the question received scant attention on the side of the Commission. Under the heading of “penal sanctions” the Commission examined both the improvement of the system embodied in the Geneva Conventions and the repression of violations of the Draft Protocol. The discussion evoked the usual demands for an international penal code, an international criminal tribunal, and criminal liability of States besides individuals. A rather more modest suggestion was to draft a model law for the repression of infractions of the Conventions and the Draft Protocol. While earlier attempts in this direction have pointed up the practical difficulties attending this idea, it seems worth pursuing nonetheless, as a goal not completely out of reach. As matters of more immediate concern the Commission discussed the questions of infractions committed by omission, responsibility of authorities and superior orders. The Conventions of Geneva of 1949 are silent on these questions, although it is sometimes argued that the reference in the relevant Articles to “persons committing, or ordering to be committed, any of the grave breaches” defined in the Conventions covers the case of commission by omission. Be this as it may, some greater clarity would certainly be desirable on this point. The need of an internationally accepted rule on the criminal liability of those in authority for failure to take the steps within their power to prevent or repress breaches of the law of war had been urged in the Netherlands in particular by Professor Röling, former member of the International Military Tribunal for the Far East in Tokyo where this concept had been brought into practice. At his instigation, the Dutch delegation introduced a proposal concerning this matter in the Commission. The issue roused but little interest among the other delegates and so failed to be included among the additional draft articles on penal sanctions elaborated by the Drafting Committee. Yet it is to be hoped that it will in future deliberations receive the attention it deserves. Not so much a lack of interest as strong hesitations about the desirability and feasibility of finding an acceptable solution marked the discussions about superior orders. Even so, a number of proposals were put before the Commission. 125 126 127 128

Para. 4.79. Para. 4.119. Para. 4.120. Articles 49/I, 50/II, 129/III, 146/IV; see, e.g., Commentary to Convention I, pp. 3645. 129 CE/COM IV/45; para. 4.122. 130 It will then also have to receive an adequate definition. For a survey of the various formulas used in the post World War II trials, see Law Reports of Trials of War Criminals. Selected and prepared by the United Nations War Crimes Commission, Vol. XV: Digest of Laws and Cases, 65-78 (1949). See also The Law of Land Warfare, U.S. Dept. of the Army FM 27-10, section 501.

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These were of two types: one, laying down that the defence of superior orders is not accepted in all cases, and the other providing that no one shall be punished for refusing to obey an order which, if carried out, would result in a breach of the Conventions or of the Draft Protocol. Each of the various proposed formulas received the support of a number of experts, thus underscoring the difficulty of finding sufficiently wide support for any one formula. Obviously, universal acceptance will be out of the question; indeed, several experts took pains to emphasize the need of military discipline and the difficulty “in time of armed conflict to permit soldiers to decide whether to obey or not.” While the above questions concerned the penal sanctions provisions of the existing Geneva Conventions as well as of the Draft Protocol, an issue solely connected with the Draft Protocol was whether the most outstanding feature of the system applied in the Geneva Conventions, viz., the distinction between grave breaches and other (minor) violations with all the attendant differences in obligations of the Contracting States, ought to find application in the Draft Protocol as well. The grave breaches enumerated in each of the Conventions are all defined in relation to the protected persons and property of the Conventions. To some experts it seemed an open question whether this system would be particularly suited for the Draft Protocol which in the end would probably contain rules about the behaviour of belligerents and means and methods of warfare. In any event, a thorough examination of the advantages and disadvantages of the “grave breaches” concept seemed called for. As also among the other experts the feeling prevailed that any attempt at drafting a penal sanctions provision for the Draft Protocol would be premature as long as the contents of its substantive rules were still highly uncertain, the further discussion of this subject was postponed to a later occasion. Under the heading of “sanctions” mention should also be made of the discussion on reprisals. As related before, the ICRC had included certain specific prohibitions of reprisals in the part of Draft Protocol I dealing with the general protection of the civilian population. However, these did neither cover all possible modalities of reprisals in that part nor did they extend to the part on the conduct of combat. In the part containing general provisions, the subject of reprisals was broached once again; here, the ICRC proposed a general prohibition of reprisals against persons and goods protected under the Conventions 131

132 133 134 135

CE/COM IV/41 (Norway), CE/COM IV/46 (Belgium), CE/COM IV/54 (Canada), CE/COM IV/56 ( Jordan); para. 4.126: Drafting Committee draft Art. 75 B, para. 2, alternatives 1 and 2. CE/COM IV/41 (Norway), CE/COM IV/54 (Canada), CE/COM IV/58 (Poland); para. 4.126: Drafting Committee draft Art. 75 B, para. 2, alternatives 3 and 4. Para. 4.123; CE/COM IV/59 (Indonesia, Iraq, Pakistan, Tanzania, Tunisia, Turkey). Para. 4.121. Supra, text at note 73.

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and the Draft Protocol. In a second paragraph, it moreover proposed a rule to the effect that a belligerent who would have recourse to reprisals in a domain where these are not yet prohibited, would be obliged to observe a number of conditions: official announcement, decision by a competent authority, imperative necessity (i.e. the requirement of subsidiarity), proportionality, respect of the laws of humanity and the requirements of the public conscience, and interruption as soon as the infraction provoking them would cease. The first paragraph of this draft Article was considered superfluous by some experts, who argued that recourse to reprisals implying the use of force was already prohibited under general international law, notably by the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. It should be pointed out that this argument was fallacious as the prohibitions contained in those instruments concern recourse to force as a threat to, or breach of, the peace and not the modalities of the use of force in the context of an armed conflict (in other words, they concern the jus ad bellum, not the jus in bello). Nor did the argument convince the majority of the experts who considered the proposed paragraph a useful reaffirmation of the specific prohibitions contained in the Geneva Conventions and the Draft Protocol. Worse was the fate of the second paragraph. Even those experts who had shown an awareness that the Draft Protocol did not preclude recourse to reprisals in the domain of the conduct of hostilities and the choice of means and methods of warfare, were virtually unanimous in their rejection of the idea that rules limiting such recourse would be included in an international legal instrument. Apart from possible doubts about the probable effectiveness of such rules, the prevailing motive for this attitude may have been the fear that limitation, as opposed to prohibition, of reprisals could be construed as a legitimization of a notion which now at most could be considered as tolerated. It should be emphasized that such a fear reflects a misapprehension of the law as it stands; in the law of armed conflict, as in international law in general, reprisals unless prohibited still are justifiable rather than merely tolerated acts. Nor did the negative attitude of the experts bring the issue any further: as the representative of the ICRC rightly remarked, suppression of the proposed paragraph would “certainly not solve the 136 137 138 139 140

141

ICRC draft Art. 74. See also op. cit. note 82, pp. 339-344. Paras. 4.135-4.136. Para. 4.136. See also op. cit. note 82, pp. 289-294. Para. 4.137. Paras. 4.135, 4.138. The Yugoslav expert made the useful suggestion to insert the gist of the paragraph after Art. 30 opening the part dealing with combatants; CE/COM IV/53. Op. cit. note 82, pp. 22-26, 42-44, 375-378.

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problem of reprisals taken in the course of combat.” This problem, therefore, remains in its entirety. The necessity of dissemination, the fourth aspect mentioned above under the heading of implementation, found the largest possible measure of agreement among the experts; as one expert pointed out, “dissemination of the law of Geneva among the civilian population, the police and the armed forces” was of “overriding importance” and “might even deprive the defence of superior orders of much of its importance.” This general feeling found expression, first of all, in acceptance of the general formula proposed by the ICRC that Contracting States in time of peace as in time of armed conflict would be obliged to give the text of the Draft Protocol the widest possible dissemination “and, in particular, to include the study thereof in their programs of military and civil instruction.” The last-quoted phrase constitutes an even stricter obligation than the comparable one in the existing Geneva Conventions where inclusion in the programs of civil instruction is required “if possible”. In answer to a pointed question of the expert of the United States, the legal expert of the ICRC explained that in drafting the new provision this “federal clause” had been deliberately omitted. Predictably, this innovation will give rise to quite some further debate on subsequent occasions, for it is by no means federal States alone which claim a lack of power to impose a modification of the programs of civil instruction: in the Netherlands too, the ministry of education shows a slightly exaggerated respect for the autonomy in these matters of the educational institutions in question. Needless to say, I am fully on the side of the ICRC in this matter; at a time when it is universally acknowledged that dissemination of the humanitarian law of armed conflict constitutes a prime condition for its effective implementation and when the UN General Assembly has invited the Member States to intensify their efforts in this domain, it seems slightly ridiculous that the obligation to ensure civil instruction would be permitted to yield to the sacrosanct autonomy of federative states or educational institutions. Besides the general obligation of dissemination, Commission IV also discussed a number of specific aspects. Thus, the representative of the UN SecretaryGeneral reminded the experts of the UN program of consultative services in the field of human rights, which allowed the exchange of concrete experiences, notably by the organization of international seminars and the grant of fellowships. 142 143 144 145 146 147

Para. 4.140. Para. 4.91. ICRC draft Art. 76; para. 4.151. Para. 4.156. As the representative of the Secretary-General recalled, referring to GA Res. 2853 (XXVI); para. 4.150. The Secretary-General already made a suggestion to this effect in his first Report on Respect for Human Rights in Armed Conflicts, A/7720.

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Mention was also made of the recently established plan of action for national Red Cross societies in the dissemination and development of humanitarian law. An idea which drew widespread support was to oblige Contracting States to report at regular intervals about the measures taken in the field of dissemination. It was also suggested that the “qualified personnel” which Contracting States under another proposed Article of the Draft Protocol would “endeavour to train … to facilitate the application of the Conventions and of the present Protocol and in particular the activities of the Protecting Powers” in the event of an armed conflict, could usefully be assigned a role in the field of peacetime dissemination and instruction as well. Commission IV in the course of its deliberations occupied itself with a fair number of other topics, both within and outside the context of implementation. In several instances, these discussions bore a preliminary character as the final form to be given the articles in question, or even their very desirability, depended on the outcome of the work of other Commissions and, for that matter, of the future diplomatic conference. We saw this already in the context of penal sanctions, where the fundamental aspects of the system to be applied in respect of infractions of the Draft Protocol had to be left undecided. And the same was true of such subjects as the proposed article on reservations and the preamble. It would serve no useful purpose even to provide a list of these various subjects. For the sake of curiosity I make an exception for the Draft Resolution concerning Disarmament and Peace. The ICRC, which in the part of the Draft Protocol bearing on the conduct of combat had refrained from proposing any specific weapons prohibitions, had considered it necessary to submit in compensation the text of a Draft Resolution which the diplomatic conference could eventually adopt and which would express in brief words the feeling of the conference that, despite the absence of specific prohibitions in the Geneva Conventions and the Protocol, certain named categories of weapons were contrary to the exigencies of humanity and ought not to be used by belligerents; the draft text went on to express the hope that the production, stockpiling and use of the weapons in question would be prohibited and that these measures would be conducive to general and complete disarmament, and in a final clause it exhorted the Parties to the Geneva Conventions to do everything within their power to preserve peace. The Draft Resolution, in brief, was an attempt to refute the reproach 148 Para. 4.153. The text is found in the Report of the Vienna Conference, supra note 14, at p. 75. 149 Para. 4.152; CE/COM IV/24 (Federal Republic of Germany), CE/COM IV/60 (United Kingdom); para. 4.158: Drafting Committee draft Art. 76(3). 150 Para. 4.91; CE/COM IV/14 (United States). 151 Supra, text at note 133. 152 Supra, text at notes 34, 35. 153 The proposed text is found between paras. 4.224 and 4.225.

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that no attention had been given to the weapons problem, while at the same time referring the problem to the disarmament discussions. Nor was it a small matter which was thus referred to the other forum, for the Draft Resolution listed the following categories of inhumane means of warfare: weapons of mass destruction, blind, poisonous and particularly cruel weapons, and weapons with indiscriminate effects. The Commission, lacking sufficient information about the results of the debate on weapons in Commission III, broached the subject only after much hesitation and, indeed, after formal protests. Yet, once started, some delegations displayed a remarkable zeal in contributing amendments to the text proposed by the ICRC. In particular the Romanian experts produced a document which deserves to be saved from oblivion; in some 2000 words, divided over four parts, their Draft Declaration gave a complete exposé of the Romanian views about virtually every important aspect of present-day international relations and international law, ranging from the prohibition of aggression and intervention in the domestic affairs of other States to universal respect of human rights and the right to self-determination of peoples. When in the course of the debate another expert introduced an oral amendment which wanted to add to this already exhaustive enumeration a reference to the right of peoples to dispose of their natural resources, it could even be said that a link had been established between this Conference on the humanitarian law of armed conflict and the conferences of the UN Oceanbed Committee on the development of the law of the sea. One paragraph in the Romanian text drew severe criticism of several other experts. It was the statement that “[a]s wars of aggression are considered as international crimes, humanitarian law is based on the distinction between the aggressor and the victim of aggression and provides protection of the victim in the exercise of the inherent, and consequently sacred, right to self-defence.” While the first part of this sentence seems a correct statement of the law, the conclusion about the basis of humanitarian law is utterly false and might even lead to the absurdity that “all soldiers of a State considered to be the aggressor by its adversary would therefore be deprived of any protection which humanitarian law might give.” This, the Romanian expert explained, was not the purport of the paragraph; its purpose “was merely to bring out clearly to which side the humanitarian support of international society should be directed.” This sounded reassuring, but it still betrays a fundamental misconception of the nature of humanitarian law. From the days of Henry Dunant this has been based, as it is today, on the idea that protection and support should be afforded those in need, regardless of the side on which they are. Obviously, if most victims would be on 154 155 156 157

CE/COMIV/71. Part I, section 3. Para. 4.231. Ibid.

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the side of the attacked Party, most support would have to be directed to that side, but this not as a matter of legal preference but of practical concern. In any event, this episode of the debate demonstrates how far the Draft Resolution on Disarmament and Peace and the Romanian amendment could lead the experts away from their proper terrain. 2.4

Commission II

The task of Commission II was to examine Draft Protocol II: the Draft Additional Protocol to Article 3 Common to the Four Geneva Conventions of 12 August 1949. The Draft Protocol covered a wide variety of items relating to non-international armed conflicts, ranging from the definition of those conflicts for the purposes of the Protocol, through the protection of the population and the position of combatants, to the possibility of outside supervision and similar provisions on compliance and enforcement. Obviously, many of these items were found in Draft Protocol I as well; the difference between the two texts lay not so much in their subject-matter as in the manner in which this had been treated: in many places, Draft Protocol I provided more severe or more detailed obligations for the Parties to an international armed conflict than did Draft Protocol II for the Parties to a non-international armed conflict. On the other hand, the latter Draft Protocol had to make provision for certain matters which for international armed conflicts had already found regulation in the Geneva Conventions of 1949 and on which Draft Protocol I therefore could be silent. The basic question for the experts in Commission II (and, ultimately, for their Governments) was of course how far they wanted to go in assimilating noninternational and international armed conflicts. This basic question dominated every aspect of the debate, from the question of definition of non-international armed conflicts to the readiness to accept outside supervision. And it is a disappointing but unmistakable truth that the experts were far from achieving anything like consensus in this matter. This lack of consensus is apparent throughout the Report, where the articles as they emerged from the Drafting Committee show sometimes as many as six alternative texts, each of which found the support of a certain number of experts. In these circumstances, it seems unnecessary to enter here into all the specific questions discussed by the Commission and recorded in such detail in the Report (which, in fact, is by far the longest of the Commission reports). For present purposes it may suffice to treat one question only, viz., the scope of the Draft Protocol, or, in other terms, the definition of non-international armed conflicts. Two basic alternatives present themselves here: either an extensive definition, perhaps as wide as in the present Article 3 of the Geneva Conventions (“armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”) or even wider, including political disturbances and

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similar danger situations below the level of armed conflict; or a restrictive definition, limiting the field of application of the Draft Protocol to certain modalities of internal armed conflict only. There exists an obvious relationship between the choice one makes here and the readiness to accept new rules in addition to the few principles embodied in Article 3 of the Geneva Conventions; the more restrictive the internal armed conflict is defined (and the closer it therefore resembles the international armed conflict), the greater the readiness to make whole parts of the law of armed conflict applicable. It is indeed often suggested that this law is applicable in its entirety in the event of a “civil war” in the classical sense, with either Party being recognized as a belligerent by the other Party. And the attempts are well-known to obtain the classification of certain types of internal situations (such as “wars of national liberation”) as international armed conflicts, with the sole purpose of thus achieving the application of the whole of the law of armed conflict. These attempts are evidently in complete contrast with the thesis that the territorial State is alone competent to decide whether a situation amounts to an armed conflict at all. The ICRC in its proposed text had aimed at securing for Draft Protocol II a field of application as wide as that of common Article 3 (“… shall apply to all conflicts not of an international character referred to in common Article 3”), while at the same time achieving somewhat greater clarity by specifying certain situations which at all events would come under that definition: “and, in particular, in all situations where, in the territory of one of the High Contracting Parties, hostilities of a collective nature are in action between organized armed forces under the command of a responsible authority.” The ICRC had not however added any proposal empowering an outside authority to establish the existence of such a specific situation of collective hostilities. The determination that such a situation exists would therefore in principle remain a power of the State in question, although nothing would prevent an appraisal of the situation by the outside world and, with that, the possibility for entities or institutions other than the territorial State to urge the application of the Protocol. This led some experts to argue that the additional clause in the proposed definition might actually limit the field of application of the Draft Protocol and 158 159

As was pointed out in the debate; para. 2.64. On this question, see Roscoe R. Oglesby, Internal War and the Search for Normative Order (1971). 160 For the discussions at the 1971 Conference of Government Experts, see op. cit. note 1, pp. 80-81. This time, the issue was raised already in the general debate opening the discussions of Commission II; paras. 2.35-2.39. See also Georges Abi-Saab, “Wars of National Liberation and the Laws of War”, in Annales d’études internationales (1972) p. 93. 161 ICRC draft Art. 1. 162 Such a possibility had already been categorically rejected in 1971; see op. cit. note 1, at p. 78.

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open the possibility for States to side-step it. Some proposed amendments aimed at removing this effect, either by clearly separating the two parts of the definition or by completely deleting the second part. Among the remaining amendments, only one maintained the basic structure of the proposed definition, while introducing into the second part even more stringent language to the effect that the responsible command must have “effective authority guaranteeing its willingness and ability to ensure observation of the rules of Humanitarian Law in force.” All the other amendments differed radically from the ICRC proposal in that they expressly limited the application of the Draft Protocol to certain well-defined situations. This was achieved, either, by attaching to the reference to common Article 3 a definition of the notion of armed conflict “for the purposes of the present Protocol”, or by omitting all reference to that Article. The effect of this manoeuvre would be completely to modify the character of the Draft Protocol; instead of being “additional to common Article 3” it would be turned into a “Fifth Convention of Geneva” which would be applicable to certain well-defined categories of internal armed conflict. At the same time, common Article 3 and the fundamental principles embodied in it would be left to their fate. Yet, all but two of these last amendments could be regarded as constructive ones, as they defined the internal armed conflict in objective terms, susceptible in principle of outside appreciation. The definitions differed widely, however, ranging from texts not much different from the one proposed by the ICRC to the extremely restrictive French version limiting the application of the Protocol to internal armed conflicts “of unquestionable intensity” and which would occur “over a prolonged period”; this last amendment excluded moreover formally “riots, banditry, isolated acts of violence, offences against penal law or other acts of a similar nature.” An English proposal took an original (though also slightly restrictive) line by introducing as the sole qualification of the armed conflict that

163 164 165 166 167

Para. 2.45. CE/COM II/2 (Austria), CE/COM II/19 (Belgium). CE/COM II/13 (Philippines), CE/COM II/17 (Egypt, Norway). CE/COM II/18 (Spain). CE/COM II/4 (Romania), CE/COM II/14 (United Kingdom), CE/COM II/16 (Argentina). 168 CE/COM II/1 (United States), CE/COM II/3 (France), CE/COM II/5 (Canada), CE/COM II/6 (Indonesia). 169 Para. 2.61. The experts of Pakistan introduced this as a formal proposal; CE/COM II/40. 170 CE/COM II/l (United States), CE/COM II/5 (Canada). 171 CE/COM II/3.

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“the Parties to the conflict have the material means of observing and ensuring the observance of the obligations of common Article 3 and of this Protocol.” The two amendments clearly destructive in character wanted to do away completely with all appearances of objectivity and leave the decision whether a situation amounts to an internal armed conflict expressly to the interested State. In the terms of the first of these, introduced by the Romanian experts, the Protocol would apply “to all the armed conflicts not of an international character referred to in common Article 3, where the State in whose territory the events are occurring recognized the existence of the internal armed conflict, its character and its constituent elements.” A more unambiguous statement of the principles of “preponderance of national sovereignty” and “non-interference in the internal affairs of other States” would be hard to find. These principles had in fact been invoked by numerous speakers in the general debate on Draft Protocol II, together with such derived concepts as the impossibility for States to transfer to others the right to maintain order on their territory, and the right of a State “to promulgate its own internal humanitarian law and lay down the conditions for the application of that law, which would combine the moral principles adopted by that country with the requirements of national security.” Indeed, “the State is man’s best friend”; or, as one expert had it, “national security constituted an inalienable attribute of a State, since it guaranteed the security of the individual and respect for human rights.” Another expert went so far as to deny utterly the possibility that international humanitarian law could apply to internal armed conflicts; such law could only apply where a conflict would have an international character, such as (he added) in a war of national liberation – that is, in an armed conflict waged in a different part of the world. This much will be clear from the above exposé that the differences of opinion among the experts about the desirable field of application of Draft Protocol II were enormous; in fact, the degree of their readiness to accept additional rules of international humanitarian law for internal armed conflicts ran all the scale from zero to a hundred. In these circumstances, the Drafting Committee could obviously do no more than list the alternatives in a logical order. This exercise resulted in an impressive catalogue of six main alternatives, many of which were in their turn sub-divided into further options. This list was laid before the Commission, where the members who wished to do so were given an opportunity to express 172 173

CE/COM II/14. CE/COM II/4; the other amendment in this category was CE/COM II/16 introduced by the experts of Argentina. 174 Para. 2.28. 175 Paras. 2.26-2.32; the quoted words are in para. 2.29. 176 Para. 2.31. 177 Para. 2.29. 178 Para. 2.71: Drafting Committee draft Art. 1.

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their preferences. Among the 70-odd participants to the Conference, a mere seventeen experts took this opportunity, and their remarks were not particularly helpful in all cases; some confined themselves to proposing further modifications or combinations of the texts before them, and one even wound up by expressing his general reserve to all the alternatives presented. With this hardly edifying spectacle the discussions in Commission II on the field of application of Draft Protocol II came to an end. The Commission then went on to discuss the further articles of the Draft Protocol. As said before, equally fundamental differences of opinion as those set out above became apparent at every turn of the road, in particular with respect to such subjects as the treatment of participants to hostilities (prisoner-of-war treatment or status, or mere humane treatment), infliction and execution of the death penalty and other modes of punishment of rebels, and the definition and protection of the civilian population. On all these questions, the debate was inconclusive, but in any event it produced a wealth of ideas and suggestions as well as a fair insight into the many obstacles which any attempt at solving the problems involved will find on its path. 3

Conclusion

At the Conference, it was generally agreed that no further conferences of Government experts would be necessary in preparation of the final stage. In accordance with this general feeling, the President of the ICRC announced in his speech towards the end of the closing session that the Committee intended to present in spring 1973 the text of new draft Protocols, via the Swiss Government, to the Governments of States Parties to the Geneva Conventions, for their examination in preparation of a diplomatic conference. And although he did not say so, it was understood that such a diplomatic conference might be convened somewhere in 1974. In the meantime, much preparation will still have to be done. There are, first, the meetings on weapons and relief which the ICRC has been invited to organize, and other expert meetings which it may wish to convene for specific questions. Then, also Governments may be expected to start, or intensify, their preparatory discussions both on the national and international levels. An opportunity for a preliminary round of discussions on the broadest possible level will be provided by the XXIInd International Conference of the Red Cross, which will be held in the late autumn of 1973 and where both Red Cross and Government delegations will be present. What are the chances of success for this whole venture? First, provided the international situation does not deteriorate too much, it seems a safe bet that 179 Paras. 2.80-2.106. 180 Para. 5.46.

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the diplomatic conference will be duly held and that it will adopt additional Protocols or Conventions “reaffirming and developing international humanitarian law applicable in armed conflicts.” But how many such new instruments will be adopted, and what will be their contents, remains very much an open question. Much, if not all, will depend on the proposals which the ICRC is going to submit. As to this, it seems reasonable to expect that one proposal will be a new version of Draft Protocol I, for international armed conflicts; indeed, this is probably the terrain where success is nearest at hand: with the right dose of nerve, a good deal of circumspection, and a bit of luck it should be possible to achieve a Protocol which even would contain a number of essential provisions about the conduct of warfare and the protection of the civilian population in the event of an international armed conflict. The perspective seems decidedly less bright for Draft Protocol II. To my mind, a complete and detailed set of rules as contained in the present draft Protocol stands little chance of being accepted by any significant number of Governments if it were to be applicable without reserve to the entire category of “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties” to which common Article 3 refers. It seems even probable that a (hopefully limited) number of Governments will not be prepared to go even the smallest step beyond the minimal obligations arising from that Article, for any situation of internal armed conflict which they consider even barely possible for their own territory. In these circumstances, the most promising course seems to be for the ICRC to submit two separate proposals, one with the same field of application as common Article 3 and containing no more than the most absolutely essential rules in addition to the principles codified in that Article, and the other with a more elaborate and complete set of rules and a proportionally limited (though always objectively defined) field of application. Assuming for a moment that the diplomatic conference would adopt both these instruments, the legal situation would certainly be far from simple. There would be the rules for international armed conflicts - and the situations which, although not on the face of it amounting to interstate conflicts, yet are brought under that heading in order to make the rules in question applicable. Then, there would be the intermediate level of the “Fifth Geneva Convention” for select internal armed conflicts yet not qualifying for application of the rules for international ones. At the bottom of the scale one would find common Article 3 with its additional Protocol, as well as those norms embodied in human rights instruments which continue to apply in emergency situations. And to be complete, one should finally mention the situations of internal conflict below the level of an armed conflict, where the human rights conventions (or those parts not suspended under an emergency clause) provide the only applicable international instruments. For the rest, the Parties to conflicts would always have the capacity to make rules of a higher level applicable, whether by common agreement or by unilateral declarations.

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A legal situation of such complexity would not be especially desirable. Yet, if the creation of such a complex legal situation would be the only way to achieve a reasonable degree of protection of human beings from the unnecessary suffering and indeed the relapse into barbarity which a literal application to the modern forms of armed conflict of the old maxim inter arma silent leges would unquestionably entail, there can be no question of hesitation. After all, simplicity in legal matters may be an asset but it certainly is not the only virtue; and the dichotomous distinction between international and non-international armed conflicts probably is as much a mere expedient and as little a faithful reflection of reality as is the comparable distinction between war and peace.

Chapter 5 The First Session of the Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 20 February - 29 March 1974*

When the Swiss Minister for Foreign Affairs, Mr. Pierre Graber, on 20 February 1974 officially opened the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, much preparatory work had preceded this event. Some of this was recorded in earlier Volumes of this Yearbook. We will continue this record with a description of the events which took place since the last report ( June 1972) and then describe the proceedings of the Diplomatic Conference itself. 1

Preparations

In the United Nations, both the General Assembly and the Secretary-General continued to pay attention to the subject of “human rights in armed conflicts”. The Secretary-General devoted his fourth report on the subject to the second session of the Conference of Government Experts and to other relevant developments arising out of activities of non-governmental bodies such as the Institute of International Law, the International Institute of Humanitarian Law at San Remo and the Special NGO Committee on Human Rights. Another report, prepared at the request of the General Assembly (Res. 2852(XXVI) of 20 Dec. 1971), conveyed the views of a small group of experts on the question of “napalm and other incendiary weapons and all aspects of their possible use”. In a third report, the Secretary-General reported on the attention given by the Commission on Human Rights and, subsequently, the Economic and Social Council, to the protection of journalists engaged in dangerous missions in areas of armed conflict. New draft articles for an international convention on that subject were annexed to the report. * 1 2 3 4 5 6

Published earlier in 5 NYIL (1974) pp. 3-34. 2 NYIL (1971) p. 68; 3 NYIL (1972) p. 18. A/8781, 20 Sept. 1972. See my article in 3 NYIL (1972) p. 18. NGO stands for Non-governmental organizations. A/8803, 9 Oct. 1972; the group was composed of experts from Czechoslovakia, Mexico, Nigeria, Peru, Romania, Sweden and the USSR. A/8777, 5 Sept. 1972.

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An interesting novelty in the General Assembly’s handling of the matter was that the general subject of “human rights in armed conflicts” was no longer allocated to the Third (or Social) but to the Sixth (Legal) Committee. This suggested that the matter had acquired a measure of ripeness, permitting what some thought would be a more “serious” discussion than could be expected in the, at times perhaps somewhat rarefied, atmosphere of the Third Committee; the change did not however result in any significant difference in the quality of the debate. The question of napalm and other incendiary weapons, which evidently – and rightly – was not yet considered ripe for debate in the Sixth Committee, was treated by the First (or Political) Committee under the heading of general and complete disarmament. The protection of journalists remained with the Third Committee. The outcome of these various deliberations was the adoption by the General Assembly of two resolutions. One, concerned with the general aspects of the efforts towards codification in the field of humanitarian law (Res. 3032 (XXVII) of 18 Dec. 1972) “noted with concern” – and thus laid perhaps slightly too much emphasis on – the absence of agreement among government experts over such fundamental issues as the definition of military objectives and protected objects, of combatants and protected persons, and of non-international armed conflicts, as well as the prohibition or restriction of the use of certain weapons and the question of guerrilla warfare. In its operative part, the resolution urged all governments to seek to ensure that the Diplomatic Conference envisaged by the Swiss Federal Council would “mark substantial progress on fundamental legal issues connected with modern armed conflicts” and would thus “contribute significantly to the alleviation of the suffering brought about by such conflicts.” In another paragraph, the Secretary-General was requested “to prepare as soon as possible, a survey of existing rules of international law concerning the prohibition or restriction of use of specific weapons.” In the other resolution (2932A (XXVII) of 29 Nov. 1972) the General Assembly welcomed the report on napalm and other incendiary weapons, commended it to the attention of all governments and peoples, and requested the Secretary-General to “publish the report for wide circulation” and to invite the comments of governments. In between these rather tame and more or less selfevident clauses, there was one paragraph which used stronger language: operative paragraph 3 “deplored the use of napalm and other incendiary weapons in all armed conflicts.” Surely, this was as near to a condemnation – or prohibition – of 7

Besides the Secretary-General’s report, the GA also had at its disposal an Interim Report on Napalm and Incendiary Weapons: Legal and Humanitarian Aspects, prepared by SIPRI, the Stockholm International Peace Research Institute, on the basis of papers discussed at a symposium held at SIPRI in August 1972. This report went beyond the report of the Secretary-General in that it concentrated first and foremost on the legal and humanitarian issues raised by the contemporary use of napalm and other incendiary weapons.

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such use as the General Assembly, or, rather, the majority which carried the resolution could go without actually saying so. That no such condemnation or prohibition was pronounced is to be welcomed; obviously a statement to that effect at that time would have been a pointless exercise. Like resolution 3032, resolution 2932A also contained a reference to the general issue of conventional weapons. In the preamble, the need was urged for rules prohibiting the use of specific weapons that cause unnecessary suffering or have indiscriminate effects and, “if possible”, for the elimination of such weapons through disarmament measures. The debate in the Third Committee on the question of the protection of journalists engaged in dangerous missions did not bring the matter any further forward. It merely brought to light the reluctance of a number of governments to agree to any convention on the subject that would, in their eyes, entail risks to the sovereignty and security of the State. In the end, the matter was simply postponed to the next session. With this, the scene shifted to Geneva, where the International Committee of the Red Cross (ICRC) resumed its preparatory discussions and expert consultations. Most important among these were two meetings, held in January and March 1973, of an Advisory Group of Government Experts chosen from among those who had, at the second session of the Conference of Government Experts, held posts as vice-presidents of the Conference, chairmen of Committees, or rapporteurs; the rest of the Group was made up of experts from the permanent members of the Security Council who did not already fall within the first category (e.g., China, who was taking part for the first time in the discussions) and from Switzerland. In these meetings, the draft articles which the ICRC intended to put before the diplomatic conference were scrutinized and assessed as to their potential acceptability. The consultations in this Group led the ICRC to modify the draft articles in a number of places. 2 The Draft Protocols, 1973 As the outcome of these preparatory activities, the ICRC published in June 1973 the definitive text of two Draft Additional Protocols to the Geneva Conventions of 12 August 1949, one (Draft Protocol I) relating to the protection of victims of international armed conflicts and the other (Draft Protocol II) to the protection of victims of non-international armed conflicts. A Commentary followed in October 1973. The Swiss Government sent these documents to all States party to 8

9

Other expert meetings dealt with the problem of penal sanctions, the question of a distinctive sign for civil defence, and signalling and identification systems for medical transports by land and sea. Texts of the Conventions in 75 U.N.T.S.; Trb. 1951 Nos 72-75; D. Schindler & J. Toman, The Law of Armed Conflicts (1973) p. 289 et seq.

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the Geneva Convention of 1949 and to Member States of the United Nations, with the diplomatic conference scheduled for February/March 1974 in view. The ICRC, on its part, sent the documents to the national Red Cross (Red Crescent, Red Lion and Sun) societies so as to enable them to discuss the Draft Protocols at the XXIInd International Red Cross Conference, convened for November 1973 at Teheran. As is evident from the titles of the two Draft Protocols, the ICRC had maintained the distinction between international and non-international armed conflicts. Draft Protocol I would apply “in the situations referred to in Article 2 common to” the Geneva Conventions (Art. I-1), Draft Protocol II “to all armed conflicts not covered by Article 2 … taking place between armed forces or other organized armed groups under responsible command” (Art. II-1). The latter Article excludes moreover expressly “situations of internal disturbances and tensions, inter alia riots, isolated and sporadic acts of violence and other acts of a similar nature.” The proposed Articles obviously leave open the important question of the status of “wars of national liberation”. In its Commentary, the ICRC points out that a majority of the experts consulted for a variety of reasons did not accept the classification of these wars as international armed conflicts. The ICRC had, however, thought it advisable to add to draft Article I-42 (“New category of prisoners of war”) a footnote suggesting as a possible solution of the problem the inclusion in this Article of a paragraph whereby “in cases of armed struggle where peoples exercise their right to self-determination as guaranteed by the United Nations Charter and the ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations’”, prisoner-of-war treatment would be granted to “members of organized liberation movements” who would comply with the conditions spelled out in the Article. Contrary to what their titles suggest, the Draft Protocols are not solely concerned with “victims of armed conflicts”: besides chapters on the wounded, sick and shipwrecked, prisoners of war (or, in Draft Protocol II, “persons in the power of the parties to the conflict”) and the civilian population, they also contain sections on methods and means of combat, which can by no stretch of the imagination be brought under that heading. In fact, much of their contents originates in – and develops – the so-called law of The Hague: the customary law of warfare, codified in part in the Hague Regulations of 1899, revised in 1907. The Draft Protocols contain, moreover, important proposals aiming at the reinforcement of 10 11 12

Conspicuously, in this text all reference to Art. 3 common to the 1949 Geneva Conventions has been omitted; see 3 NYIL (1972) p. 18, at pp. 56-57. For the use of this term, see, by this author. The Law of Warfare (1973) pp. 24-27. Texts of the Regulations in Schindler & Toman, op. cit. note 9, p. 69 et seq; De Martens N.R.G., 2ème série, Vol. XXVI (1899) pp. 949-979; De Martens N.R.G., 3ème série, Vol. III (1907) pp. 461-503.

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the system of supervision by Protecting Powers or substitute organizations, filling lacunae in the system of penal sanctions, et cetera. For present purposes, it may suffice to highlight some of the more particularly salient features of the Draft Protocols. First, as concerns prisoners of war, Article I-42 introduces (or, rather, claims to introduce) a “new category of prisoners of war”. Actually, the so-called new category consists of the members of organized resistance movements, already mentioned in Article 4 of the Third Geneva Convention of 1949. The novelty consists mainly of a decidedly more flexible wording of the conditions such movements have to fulfil: a) b) c)

that they are under a command responsible to a Party to the conflict for its subordinates; that they distinguish themselves from the civilian population in military operations; that they conduct their military operations in accordance with the Conventions and the present Protocol.

While the traditional requirements of a “fixed distinctive sign recognizable at a distance” and “carrying arms openly” have thus disappeared, this is not the case with the requirements of a responsible command and distinction from the civilian population; both, indeed, essential guarantees for any orderly conduct of hostilities. Perhaps the most conspicuous feature of the proposed text is, however, the exclusive reference to resistance movements: this term, which originated out of the peculiar circumstances of the Second World War, seems hardly adequate to cover the many varied forms in which guerrilla warfare has appeared since that time. Thus, although the proposed Article 42 brings significant improvements to the existing law on the subject, at the same time it evidently bears all the characteristics of a compromise between conflicting opinions. In Draft Protocol II, all express reference to the concept of prisoners of war is carefully omitted. Instead, Part II under the title “Humane Treatment of Persons in the Power of the Parties to the Conflict” sets out, first, a number of fundamental principles elaborating the idea of human treatment in respect of “all persons who do not take a direct part of who have ceased to take part in hostilities, whether or not their liberty has been restricted” (right to respect for their person, honour and religious convictions and practices; prohibition of discrimination, of violence to life and person, of the taking of hostages, of acts of terrorism, et cetera; Art. 6), adding in Article 7 a specific prohibition “to kill, injure, ill-treat or torture an adversary hors de combat.” Article 8, applicable only to the category of “persons whose liberty has been restricted by capture or arrest for reasons in relation to the armed conflict”, repeats once again the requirement of humane treatment. It then goes on to lay down certain rules which the parties to the conflict should respect without qualification (such as reasonable accommodation and adequate water, food and clothing) and

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other provisions which they should respect “within the limits of their capabilities” (e.g., permission to receive relief, to practice one’s religion, to send and receive letters and cards; places of internment of detention not close to the combat zone). The Article prohibits reprisals against this category of persons and requires the parties to the conflict to facilitate visits by a body such as the ICRC. Evidently, this Article contains the nucleus of a prisoners of war regime, adapted to the specific exigencies of non-international armed conflict, a situation where the parties will more likely than not lack the capacity to implement a set of detailed and far more rigid rules such as are found in the Third Convention for the event of an international armed conflict. One element basic to a real prisoners of war regime is conspicuously absent from Article 8, however. It is the prohibition against punishing captured adversaries for merely having taken part in the hostilities. On the contrary, both Article 9 in general and Article 10 with respect to the special category of persons “found guilty of an offence in relation to the armed conflict” contain nothing but a number of principles of due process. In the Commentary to Article 10, the ICRC states in so many words that “the present draft Protocol does not affect the right of the constituted authorities to prosecute and sentence persons found guilty of an offence” (leaving open, incidentally, whether the insurgent party could possess the same right – or for that matter consider themselves “constituted authorities”). Accordingly, the Article (para. 5) calls upon courts when sentencing persons solely for their participation in hostilities to “take into consideration, to the greatest possible extent, the fact that the accused respected the provisions of the present Protocol.” This provision surely constitutes a perfect specimen of a minimum requirement: indeed, to someone who, like the present author, is thoroughly convinced of the essential futility of any attempt to contain by penal means a situation of political unrest which has developed into an armed conflict, it is even less than that. It is not at all unlikely that the ICRC has itself been aware of the total insufficiency of the proposed provision; the Commentary points out that Draft Protocol II, “which does not confer any impunity on combatants for having taken part in hostilities, nevertheless imposes upon them certain obligations which they must fulfil towards adverse armed forces as well as towards the civilian population”, and it explains that the motive behind the proposed text is “to encourage combatants to respect the Protocol in spite of any penal prosecutions that might be brought against them.” It does not seem open to doubt that to achieve this purpose a stronger incentive is needed than the one offered in the proposed Article 10(5). Indeed, the one incentive that might be expected to have the desired effect would consist precisely of impunity for the mere fact of having taken part in hostilities. A subject closely connected with the foregoing is the question of the death penalty. Draft Protocol II, while not excluding the imposition of this penalty for offences related to the armed conflict, provides that it “shall not be carried out until the hostilities have ceased.” This is probably the most that can be achieved

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here, and it would certainly constitute an important step towards implementation of the “right to life” of the persons in question. Specific provisions, both in Draft Protocols I and II, prohibit the imposition of the death penalty for an offence in relation to the armed conflict committed by persons below eighteen years of age (Articles I-68, II-10) and of carrying out the same penalty on pregnant women (Articles I-67, II-10). As the Commentary takes pains to point out, the latter prohibition is a measure of protection, not of the women, but of their unborn children. It is a sad reflection that such a provision, and indeed the entire set of restrictions in respect of the death penalty, are still necessary in this world and will probably remain so for a long time to come. General protection of the civilian population is the next item important enough to be discussed here. Starting from the basic principle of distinction between civilians and combatants (1-43, 11-24) the Draft Protocols provide definitions, first, of civilians and the civilian population. A civilian, according to Article 1-45, is “any person who does not belong to one of the categories of armed forces” entitled to prisoner-of-war status under Article 4 of the Third Geneva Convention of 1949 or Article 42 of the Draft Protocol. In Draft Protocol II (where a reference to prisoner-of-war status was not possible) it is “any person who is not a member of armed forces” (Art. 25). These definitions are in conformity with the preference expressed in the second session of the Conference of Government Experts by a number of experts, who had added, however, that persons falling within the definition would enjoy protection as civilians “unless and for such time as they take a direct and immediate part in hostilities.” The latter clause is evidently necessary to obviate the absurd situation that a person not belonging to an armed force would be entitled to protection as a civilian even though he behaved in every respect as a combatant. In order to meet this difficulty the ICRC proposes to provide under the heading “protection of the civilian population” (Articles 1-46, 11-26) that “civilians shall enjoy the protection afforded by this Article unless and for such time they take a direct part in hostilities”. The express limitation to “this Article” has, however, a remarkable – and probably unintended – effect when another provision in the same Section is taken into consideration: in Article I-51, the Parties to the Conflict are placed under an obligation to take, “to the maximum extent feasible”, “the necessary precautions to protect the civilian population, individual civilians and civilian objects under their authority against the dangers resulting from military operations.” Taken literally, this would mean that a “civilian” who takes a direct part in hostilities would have to be protected by his authorities, not only against the impact of enemy counteractions, but even against the dangers resulting from his own activities. In order to avoid such absurd consequences, it

13 14

3 NYIL (1972) p. 18, at p. 34. Draft Protocol II does not contain a similar provision.

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seems preferable to attach the exception directly to the definition of a “civilian” in Articles I-45 and II-25. The “civilian population” is defined relative to the concept of “civilian”: it “comprises all persons who are civilians.” This definition does not include those “civilians” who are taking a direct part in hostilities. There is moreover a provision that the presence of “individuals who do not fall within the definition of civilians” (that is, members of armed forces) “does not deprive the population of its civilian character.” Another important provision retained from earlier drafts is the rule that in case of doubt a person shall be presumed to be a civilian. Under the heading “civilian objects”, Draft Protocol I in Article 47 provides first of all a definition of military objectives: “those objectives which are, by their nature, purpose or use, recognized to be of military interest and whose total or partial destruction, in the circumstances ruling at the time, offers a distinct and substantial military advantage.” This definition is in large measure copied from a proposal made at the second session of the Conference of Government Experts. That proposal, however, by the use of “or” between the two parts of the sentence made the element of military advantage in an object’s total or partial destruction a separate ground for considering it a military objective, while the present draft text, by using “and”, turns it into a cumulative requirement. Another striking modification is the introduction, in the first half of the sentence, of the word “purpose” (or, rather, in conformity with the original French text, “destination”). In the Commentary, this is explained as the “future function” of an object, whereas “use” stands for “present function”. It is incomprehensible that the ICRC thought fit to admit this element of “future function” into the proposed definition of military objectives. If, to take an example, according to the military planning in a given country a school is destined in certain circumstances to be converted into a barracks but has not in fact been so converted, this destination would nonetheless provide an excuse to consider it a military objective. The Commentary offers the following cryptic explanation: “An object may be of value either to the civilian population or to the armed forces, or to both simultaneously… In determining the purpose or use of an object, therefore, the time and place of the attack must be taken into consideration.” This is putting matters upside down; when an attack is contemplated on a given object, the issue to be determined is the military value of the object or, in other words, the military advantage to be gained by its capture or total or partial destruction. These factors evidently depend on the use to which the object is actually put. Admittedly, one can imagine a military commander who wants to neutralize an object because of its potential use, “purpose” or destination, but to sanction this expressly in a legal text is tantamount to abandoning all attempts at restricting the category of objects which, as “military objectives” may be made the legitimate object of attack. 15

3 NYIL (1972) p. 18, at pp. 35-36.

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“Attacks”, according to Article 47(1), “shall be strictly limited to military objectives”; hereafter follows the definition mentioned above. The logical corollary of this principle is that objects not constituting military objectives shall not be made the object of attack. Paragraph 2 duly lays down this rule, but not without first having mentioned “objects designed for civilian use, such as houses, dwellings, installations and means of transport.” According to the Commentary, this language constitutes a “flexible definition of civilian objects” together with a list of such objects “given purely as an example.” Neither the one nor the other seems, however, very useful. A house may be “designed for civilian use” but its actual use will decide whether it does or does not constitute a military objective. The proposed paragraph admits this by adding to the prohibition of attack the phrase “except if they are used mainly in support of the military effort.” Apart from the confusion which the reference to the “military effort” is apt to create, a graver objection is that the text of the paragraph makes the exception equally applicable to the prohibition of attack on non-military objectives. This illogical construction, whereby an object is said not to constitute a military objective and yet to be “used mainly in support of the military effort”, was already criticized by this author on an earlier occasion. Parallel to the principle prohibiting attacks on non-military objectives, Article 46 lays down the categorical rule that “the civilian population as such, as well as individual civilians, shall not be made the object of attack.” The principle, reaffirmed already on a number of occasions by the UN General Assembly and other bodies, is elaborated in the Article into some further rules: prohibition of “methods intended to spread terror among the civilian population”, prohibition of attacks “against the civilian population or civilians by way of reprisals”, prohibition of the “employment of means of combat, and any methods which strike or affect indiscriminately the civilian population and combatants or civilian objects and military objectives.” The latter prohibition, which might be thought to rule out at least the use of the megaton class of nuclear weapons and which in any event amounts to a prohibition (which the Article goes on to state explicitly) of area bombardment on “a zone containing several military objectives, which are situated in populated areas, and are at some distance from each other”, actually falls under another principle as well, viz., that of proportionality. It is a much disputed question whether a principle of proportionality can find a place in a humanitarian instrument. After all, the principle starts from the presumption that losses will occur among the civilian population, and it merely attempts to curb these by forbidding disproportionate damage. The ICRC, having carefully weighed the various aspects of the question, decided to retain the concept notwithstanding earlier criticisms. Not only was the concept retained, but 16 17 18

Ibid., at p. 35. Notably in GA Res. 2444 (XXII) and 2675 (XXV); see 2 NYIL (1971) p. 68. 3 NYIL (1972) p. 18, pp. at 39-40.

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the Draft Protocol makes mention of it in three different places. First, in the Article under discussion (Art. 46) the general prohibition to use indiscriminate means or methods is followed by a specific rule prohibiting “to launch attacks which may be expected to entail incidental losses among the civilian objects to an extent disproportional to the direct and substantial military advantage anticipated.” Then, in Article 50, under the heading “precautions in attack”, both “those who plan or decide upon an attack” and “those who launch” it are required to avoid, to the greatest possible extent, disproportionate damage. Article 50 is not however content with avoidance of disproportionate damage. It places the planners and decision makers under an obligation, first, to ensure (or, in an alternative proposal, to take all reasonable steps to ensure) that the objectives under consideration “may be attacked without incidental losses in civilian lives and damage to civilian objects in their vicinity being caused.” Only after this primary obligation to avoid all losses follows, “at all events”, the avoidance of disproportionate losses. Similarly, the Article lays down the requirement “in the choice of weapons and methods of attack” to take “all necessary precautions … so as not to cause losses in civilian lives and damage to civilian objects in the immediate vicinity of military objectives to be attacked.” This seems an absolutely correct construction; first comes the obligation to make every effort to avoid all civilian losses and damage, and only to the extent that this proves impossible is it permissible to fall back on the standard of proportionality, formulated in strictly objective and severely restrictive terms (the “direct and substantial military advantage anticipated”). Always under the heading “general protection of the civilian population” mention should be made of the prohibitions, in Articles 48 and 49, against attacking objects indispensable to the civilian population and works and installations containing dangerous forces. The first prohibition seems more realistic than the second: under the latter, attacks would be prohibited on “dams, dykes and nuclear generating stations.” Obviously, attacks on such objects may create grave risks or even cause actual disasters. But, while at all events not every Dutch dam or dyke is so loaded with danger, the present proliferation of nuclear power plants and the increasing dependence on the energy they generate make it highly improbable that belligerents would in all circumstances be ready to forgo their elimination. Both in Articles 48 and 49, reprisals against these special categories of objects are prohibited, whereas no such prohibition is found in Article 47 (“general protection of civilian objects”). This distinction, which originates in the hesitation of the ICRC to propose a complete ban on all reprisals against the civilian population and civilian objects, is to my mind completely unjustified. Leaving aside the proposals on special protection (of non-defended and neutralized localities, Articles 52 and 53; civil defence, Articles 54-59; women 19 20

Ibid., at pp. 37-38. Ibid., at pp. 40-45.

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and children, Articles 67-69), as well as the proposed Articles on protection of the civilian population in Draft Protocol II (comparable to, and often identical with, those in Draft Protocol I, although in general somewhat more modest), we next turn our attention briefly to “methods and means of combat”. The opening Article of this Section in Draft Protocol I, Article 33, does not much resemble earlier ICRC drafts. It now contains, after a reaffirmation of the basic principle that belligerents have no unlimited right to adopt methods and means of combat (Hague Regulations, Art. 22), the prohibition “to employ weapons, projectiles, substances, methods and means which uselessly aggravate the sufferings of disabled adversaries or render their death inevitable in all circumstances”; language which, as the Commentary to Article 33 explains, is borrowed from the St. Petersburg Declaration of 1868. Two things strike the eye in this new proposal. First, there is no mention here of the well-known norm of customary law prohibiting the employment of means of warfare calculated to cause unnecessary suffering (or, in another and probably more accurate translation of the original French text of Article 23(e) of the Hague Regulations, “apt to cause superfluous injury”). The lacuna is more apparent than real, though, for this norm is actually derived from the St. Petersburg principle. Second, any reference to specific weapons that might be deemed to fall under the proposed prohibition is conspicuously absent; a point to which we shall revert at a later stage in this paper. It may be recalled that another standard governing the choice of means of warfare is expressed in Article 46, where the employment of means of combat having indiscriminate effect is prohibited. A third norm, proposed by the ICRC in the Conference of Government Experts, does no longer find a place in the Draft Protocol: the prohibition of “particularly cruel” weapons. As the meaning of this phrase was never very clear in the first place, its omission does not represent a great loss. A useful addition, in contrast, is provided by Article 34 where the Contracting Parties are obliged “in the study and development of new weapons or methods of warfare … [to] determine whether their use will cause unnecessary injury.” The scope of this provision, which goes back to an American idea expressed in the Conference of Government Experts, is not yet sufficiently clear: does it only lay an obligation on individual States, or does it assume some sort of collective determination? Even if only the first assumption turns out to be the correct interpretation of the provision (or the length the Contracting States are prepared to go) it might prove a powerful instrument in the hands of those who want to prevent undesirable developments in the field of weapons. Even now, it is gradually dawning on an increasing number of those involved in the design and produc21 22

Ibid., at p. 28. Art. II-20 is identical to Art. I-33. Text of the Declaration in De Martens N.R.G., 1ère série, Vol. XVIII, pp. 474-475; Schindler & Toman, op. cit., p. 95 et seq.

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tion planning of new weapons that an assessment of the human suffering which the use of a new weapon is likely to entail should constitute an important, if not a dominant, factor in the decision whether the armed force should be equipped with it at all. Perfidy is prohibited in Article 35. It defines this notoriously elusive concept as “acts inviting the confidence of the adversary with intent to betray that confidence.” The Commentary clarifies it further: “Like ruses, perfidy involves simulation; but in addition it aims at creating falsely a situation in which the adversary feels obliged by a legal or moral rule to abstain from any hostile act or to neglect to take precautions which would be in fact necessary, thereby putting himself at a disadvantage.” This explanation goes to the heart of the matter and in fact provides a far better description of perfidy than does the definition in the Article. Yet, as a legal definition it would probably be wholly unsatisfactory; for that purpose, a simpler formula such as the one proposed seems preferable. It remains to be seen, however, whether “confidence” is an adequate term to convey the meaning which the authors rightly give to the concept of perfidy. Besides perfidy, the Article also defines the opposite concept, viz., ruses of war: these are said to consist in “those acts which, without inviting the confidence of the adversary, are intended to mislead him or to induce him to act recklessly.” So much will be clear from this language, that a thin dividing-line separates the lawful ruse from the illegal act of perfidy. It is therefore very useful that this and the following Articles provide a number of examples, both of the ruse of war (“camouflage, traps, mock operations and misinformation”) and of the perfidious act (feigning a situation of distress, disguise of combatants in civilian clothing, misuse of recognized signs). The Section on “methods and means of combat” provides other useful additions to, or clarifications of, the existing law relating to combatants and combatant behaviour. Thus, Article 38 prohibits “to kill, injure, ill-treat or torture an enemy hors de combat”, a rule which Article 39 makes specifically applicable to the “occupants of aircraft in distress … when they are obviously hors de combat, whether or not they have abandoned the aircraft in distress.” Article 40, entitled “independent missions”, deals with combatants who, recognizable as such, penetrate into enemy-controlled territory and either “gather or attempt to gather military information for further transmission” or “destroy or attempt to destroy military objectives.” These laborious descriptions of activities which might at first glance perhaps be thought to constitute spying or sabotage, serve precisely to establish that the activities in question shall not be so considered, and that such combatants, in the event of their capture, shall be entitled to prisoner-of-war status. This is a far from superfluous provision, not only in the light of the history of the Second World War (where Hitler in 1942 issued his ill-famed Kommandobefehl or 23 24

This Article is not repeated in Draft Protocol II. Art. II-21 is couched in identical language.

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Commando Order) but also of the widespread employment of such “independent missions” in other, more recent armed conflicts. A final, equally important, provision in this section lays down that all armed forces, including resistance movements, “shall be organized and subject to an appropriate internal disciplinary system.” While this may perhaps seem to be an intolerable intrusion into internal affairs, it is, on the contrary, a most useful requirement which, according to Article 41, serves to ensure “respect for the present rules and for the other rules of international law applicable in armed conflicts.” Indeed, international society has a legitimate interest in the existence or non-existence of disciplinary systems in armed forces, whether regular or otherwise. This leads us automatically to the last question to be discussed here: viz. the proposals relative to the implementation and supervision of the Draft Protocols and of international humanitarian law in general. With regard to supervision, Draft Protocol I contains a number of the ideas discussed in the Conference of Government Experts: provisions designed to reinforce the Protecting Powers system (Art. 5), proposals envisaging the training, in peacetime and on a national basis, of qualified personnel who may serve to facilitate the application of the Geneva Conventions and the Protocol, e.g. by acting as delegates for Protecting Powers (Art. 6) and a proposition to the effect that two-thirds of the Parties to the Protocol, or the ICRC, may ask for a meeting of Contracting Parties “to study general problems concerning the application” of the Protocol (Art. 7). As was to be expected, Article 5 does not provide for any automatic functioning, either of Protecting Powers or of a substitute organization. In particular, it does not place any obligation on the ICRC to offer to act as substitute irrespective of its own assessment of the willingness of the Parties to the conflict to accept its supervisory activities, nor does it make provision for the functioning of a United Nations organ or other body under the aegis of that organization. In other words, although the proposed provisions, once accepted, would bring a distinct improvement to the system of supervision, it would be wrong to expect too much of them. In Draft Protocol II, propositions relating to outside supervisory activities are obviously far more modest. Indeed, pride of place is given to the statement that “nothing in the present Protocol shall be interpreted … as authorizing third States to intervene in the armed conflict” (Art. 4); and instead of a system of 25 26

27

See, by the present author, Belligerent Reprisals (1971) p. 184 et seq. In Draft Protocol II, the ideas behind these Articles are reduced to their simplest form in Art. 22, which provides that “it is forbidden to order that there shall be no survivors, to threaten an adversary therewith and to conduct hostilities on such basis”; crude language which reflects the harshness and cruelty which often characterizes internal armed conflict. Cf. 3 NYIL (1971) p. 18, at pp. 46-49.

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third States functioning as Protecting Powers, one finds some references to the possibility of parties to the conflict seeking or accepting the services of a body such as the ICRC (visits to persons whose liberty has been restricted, Art. 8; co-operation in the observance of the Protocol, Art. 39). When compared to the machinery provided in an instrument such as the European Convention on Human Rights and Fundamental Freedoms, these proposals are very meagre. But when one takes into account that the present Draft Protocol is designed to find application in situations of internal armed conflict occurring all over the world, one readily realizes that for the time being nothing better can reasonably be expected. Draft Protocol I under the heading “execution of the Conventions and of the present Protocol” contains a number of proposals aiming at a (more) effective implementation of these instruments. A first set of proposals deals with such subjects as “orders and instructions to ensure observance” (Art. 70), employment of legal advisers in the armed forces (Art. 71), and dissemination of the Conventions and the Protocol “so that those instruments may become known to the armed forces and to the civilian population” (Art. 72). In a second Section, the repression of violations is envisaged. First, the system of “grave breaches” as found in the Geneva Conventions of 1949 is made applicable to the Protocol as well, without any clear indication being given of what should be understood by grave breaches in the context of this instrument: Article 74 confines itself to making the system applicable “to the repression of breaches of the present Protocol, including that of the grave breaches committed against protected persons or protected objects within the meaning of Article 2(c).” Nor does it help a great deal to read in Article 2(c) that “‘protected persons’ and ‘protected objects’ means persons and objects on whom or on which protection is conferred by the Articles, Chapters or Sections which concern them in Parts II, III and IV” (dealing respectively with the wounded, sick and shipwrecked, methods and means of combat and prisoner-of-war status, and the civilian population). It will be absolutely necessary to supplement these provisions with a clear, unequivocal indication of those rules in Draft Protocol I the violation of which is apt to constitute a grave breach, and of the acts which do in fact constitute such grave breaches. Article 76 deals with two aspects of the problems of penal responsibility for failure to act. First, it provides that breaches of the Conventions or the Protocol “resulting from a failure to perform a duty to act” shall be repressed, irrespective of whether the violation constitutes a “grave breach” in the technical sense or a lesser offence. Second, it lays penal responsibility on superiors for a breach committed by a subordinate “if they knew or should have known that he was committing or would commit such a breach and if they did not take measures within their power to prevent or repress the breach.” This provision, the underlying idea of which was applied in a number of war crimes trials after the Second World War, goes back to a Dutch initiative at the Conference of Government Experts

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which, in turn, was the result of persistent urging by Professor Röling, former member of the International Military Tribunal for the Far East in Tokyo. The reverse situation is treated in Article 77, where it is laid down, on the one hand, that no one “shall be punished for refusing to obey an order of his government or of a superior which, if carried out, would constitute a grave breach” of Conventions or Protocol, and, on the other, that “the fact of having acted pursuant to an order of his government or of a superior does not absolve an accused person from penal responsibility if it be established that, in the circumstances at the time, he should have reasonably known that he was committing a grave breach … and that he had the possibility of refusing to obey the order”. These provisions, it should be emphasized, apply exclusively to the case of grave breaches, a restriction which here seems reasonable. As the Commentary points out, the reference in the final sentence to the “possibility of refusing to obey” has been introduced to meet the objection that without such an escape clause soldiers might be in a difficult position “as they were compelled by military laws and regulations to obey orders issued to them.” This language is perhaps somewhat too general; true, a certain measure of obedience is at the root of all “military laws and regulations”, but fortunately it is only in relatively few countries that this indispensable element is even to this day converted into the categorical imperative of “Befehl ist Befehl”. For obvious reasons, Draft Protocol II contains no provisions at all concerning penal repression of breaches, whether grave or otherwise. There are, on the other hand, some interesting proposals aimed at improving its effective implementation. One is found in Article 5, where it is stated that “the rights and duties of the parties to the conflict under the present Protocol are equally valid for all of them.” This is an attempt to solve the problem of how to bind the insurgent party to an international legal instrument to which they are not, and cannot be, a party in the formal sense. As the Commentary explains, Article 5 is intended to imply that Protocol II, although constituting “an engagement entered into by the State”, is “not only binding upon the Government but also upon the constituted authorities and the private individuals” in the territory, “upon whom certain obligations are thus imposed”; “the rights and duties of private individuals extend over a range that is identical to that of the rights and duties of State organs.” While it may be open to some doubt whether the statement in the Commentary is correct that “this is a technique frequently adopted in contemporary international law”, or at any rate that it is successfully so adopted, in the present area of the law of armed conflict applicable to non-international armed conflicts it may well prove to constitute the one available, effective technique. This is especially true if it is combined with certain other proposals in Draft Protocol II: viz., obligation upon the parties to the conflict to “take measures to ensure observance of this Protocol by its military and civilian agents and persons subject to its author28

Ibid., at p. 49.

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ity” (Art. 36) and obligation to disseminate the Protocol both in time of peace and of armed conflict (Art. 37). 3

Further Preparations

As we saw in the foregoing, the Draft Protocols do not contain any proposals relative to the prohibition or limitation of the use of specific weapons. Yet, there could be little doubt that here was another area of the law of armed conflict urgently in need of some modernization: after all, the most recent effort in this field was the Geneva Gas Protocol which dates back as far as 1925. It is certainly no exaggeration so say that important weapon developments have come about since that time. In view of these facts, the Conference of Government Experts had suggested that the ICRC convene a meeting of experts on the matter. Following this suggestion, the ICRC brought together a working group of military, medical and legal experts from various countries and organizations, who took part in the discussions in their private capacities. In two sessions (26 February - 2 March and 12-15 June 1973) they drew up the text of a report on “Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects”. The ICRC subsequently published the report and sent it to all Governments of States party to the Geneva Conventions, national Red Cross Societies and interested non-governmental organizations (such as the NGO Special Committee on Disarmament and SIPRI). The report treats specified categories of conventional weapons, i.e., weapons not belonging to the class of nuclear, biological/bacteriological or chemical means of warfare. The categories of weapon singled out for examination are the following: small-calibre projectiles (and in particular high-velocity ammunition), blast and fragmentation weapons, time-delay weapons and incendiary weapons. Moreover, various types of laser are discussed under the heading “potential weapon developments”. Attention is focused in particular on anti-personnel weapons, or the anti-personnel effects of certain weapons. These are examined in the light of existing legal standards: prohibition against the employment of means of warfare liable to cause unnecessary suffering or superfluous injury, prohibition of indiscriminate warfare. As the latter standard is in particular far from clear (literally any weapon being capable of indiscriminate use) the report refers with some greater precision to those weapons which by their nature are incapable of being directed with any certainty to specific targets or which in their typical or normal use are not delivered with any certainty to such targets. The purpose of the report was not to condemn the employment of any specific weapons, nor even to put forward any proposals for their future prohibition. 29 30

Text in 94 L.N.T.S. p. 65; Schindler & Toman, op. cit. note 9, p. 109 et seq. Ibid., at pp. 28-30, 53-55.

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Yet, even on the basis of the relatively limited information set out in the text, the experts did not hesitate to offer as their conclusion – endorsed at least implicitly by the ICRC – “that several categories of weapon tend to cause excessive suffering and particularly severe injuries or may, either by their nature or because of the way in which they are commonly used, strike civilians and combatants indiscriminately.” And, they added by way of modest suggestion, “the risks involved in their rapid proliferation and use [i.e. of certain of these weapons] would seem to constitute good reasons for intergovernmental discussions concerning these weapons with a view to possible restrictions upon their operational use or even prohibition”. It would be difficult to find gentler language to convey the message that something effective ought to be done about these weapons, and fast. The ICRC in its introductory remarks expressed the hope that the report would “prove useful and stimulating” and it declared itself ready, if so desired, to “convene a conference of government experts in order to contribute to the promotion of relevant international humanitarian law.” Enigmatic words, which were probably designed to let it be known that the ICRC (a) still entertained serious doubts as to the desirability of its involvement in the project, (b) felt that at all events the stage had not yet been reached where formal propositions for legal regulation could usefully be made, but (c) rather than withdrawing from the project, would continue to contribute to the best of its ability to a successful conclusion of the work, even in this area of the law of armed conflict where the preponderance of all kinds of military, technical, economic and political considerations is more marked than in other areas of that law. A short time after the publication of the ICRC report, an even more comprehensive and elaborate study on the same subject was published by the Swedish Ministry for Foreign Affairs. The report, entitled “Conventional Weapons, Their Deployment and Effects from a Humanitarian Aspect”, contains the result of an investigation carried out by a small working group of Swedish experts and the recommendations they arrived at for the modernization of the law in this area. Rather than being confined to a description of certain reprehensible weapons, their characteristics and effects, the Swedish report also puts forward some extremely useful suggestions concerning the construction and use of specific weapons as well as alternative constructions or weapon systems. Thus, with respect to fragmentation weapons, rules are proposed for their construction: no substances which may have serious toxic effects, fragment material must be X-ray detectable, construction so that only a limited percentage of the persons affected by the explosion will be hit by four or more fragments with a certain energy. 31

To demonstrate the degree of technical precision displayed in the report, it may be interesting to quote this particular construction rule in full: A fragmentation warhead primarily adapted for use against combatants in the open shall be constructed in such a way that if its effects hit standing, unprotected soldiers operating in completely open and flat country with no

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Then, as these construction rules do not affect the possible indiscriminate effects of primarily anti-personnel fragmentation weapons, three alternative operational rules are proposed: use only against well-localized military targets within an area of no more than one square kilometre; no dropping of certain cluster bombs from airplanes or helicopters nor launching of such weapons by missiles or unguided heavy rockets; prohibition of the use of cluster bombs which eject a great number of small fragments. As for alternative constructions or weapons, the report points out that fragmentation weapons which yield fewer but larger fragments with a limited initial velocity would provide highly effective anti-personnel weapons; furthermore, in the eventuality of anti-personnel cluster bombs with fragmentation warheads being completely banned, bombs or shells with reduced area coverage could take their place. By the publication of this valuable, both realistic and idealistic report, the Swedish Government has once again made a major contribution to the work in this area of conventional arms limitations, where it has for a long time played a leading role. The whole matter of the “reaffirmation and development of international humanitarian law applicable in armed conflicts” was next taken to the XXIInd International Conference of the Red Cross, held at Teheran in November 1973. The competent commission of the Conference, the Commission on International Humanitarian Law, considered the two Draft Protocols and took note of proposals bearing on the subject. In view of the strictly limited time available for this item on its agenda, no real in-depth discussion could be expected. Yet, the debate was useful in that it already provided an indication of the attitudes Governments might be expected to take at the Diplomatic Conference. In this respect, a point of particular importance was the sharp controversy which arose over the nature of international humanitarian law. There were those, on the one side, who, starting from the prohibition against the use of force and the criminality of wars of aggression, considered that a distinction must be made “between just and unjust wars, between aggressors and victims of aggression, since the purpose of humanitarian law was to provide protection only to victims of acts of aggression”. On the other side stood those delegates who advocated that humanitarian law should be kept “apart from political, ideological and subjective considerations, while top priority should be give to objective criteria, such as preventing avoidable suffering, distinguishing the civilian population from combatants and civilian objects from military objectives, and preventing treacherous

32

obstacles, the number of soldiers hit by four or more fragments with an impact energy exceeding 5 joules may not, on the average, exceed 20 per cent of the number of soldiers put out of action. See: Report on the study by the XXIInd International Conference of the Red Cross of the Draft Additional Protocols to the Geneva Conventions of 12 August 1949, published by the ICRC in Jan. 1974 as an official document for the Diplomatic Conference.

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methods of war, so as to provide all conflict victims with the protection to which they are entitled.” It is not difficult to realize that in this controversy the latter view is the one in conformity with the true nature of international humanitarian law as it has developed through the 19th and 20th centuries, whereas the former view is completely destructive of the basic values on which it rests. As the representative of the ICRC pointed out, one should not confuse jus ad bellum and jus in bello. Another issue, connected in some respects with the previous one, concerned the status of wars of national liberation. While some delegates rejected the idea that armed conflicts would be classified according to any but objective criteria and, hence, that the political cause of a conflict might determine its classification, many others took the view that wars of national liberation must be considered as international armed conflicts and humanitarian law was fully applicable in such wars. Needless to say, the latter group were not satisfied with the cautious suggestion of the ICRC that a paragraph might be added to Article 42 of Draft Protocol I, to the effect that participants in wars of national liberation who fulfil the traditional (although somewhat more flexibly worded) conditions for combatant status shall be treated as prisoners of war: they favoured a solution whereby it would be clear that the wars in question come within the ambit of Draft Protocol I rather than of Draft Protocol II. Attention was also given to the question of the prohibition or restriction of the use of certain conventional weapons. The debate showed a growing readiness on the part of Governments to take part in discussions which might ultimately lead to such prohibitions or restrictions. On the other hand, there was a clear tendency to avoid too hasty steps which would not only fail to bring about the desired effect but might even jeopardize the work on the Draft Protocols. The deliberations in the Commission on International Humanitarian Law ultimately resulted in the adoption, first by the Commission and subsequently by the plenary Conference, of four resolutions. One of these, Resolution XIII entitled “Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts”, urged Governments to participate in the forthcoming Diplomatic Conference and to use it “to achieve substantial humanitarian gains.” It moreover urged the Diplomatic Conference “to consider inviting national liberation movements recognized by regional intergovernmental organizations to participate in its work as observers in accordance with United Nations practice.” This paragraph in the Resolution was the result of an uneasy compromise between opposing views and, hence, left much unsettled, notably the crucial question of what type of participation was envisaged here for the liberation move33 34 35 36

Ibid., para 7; emphasis as in the original. Cf. 3 NYIL (1972) p. 18, at pp. 54-55. Report, paras. 38-46. Ibid., paras. 93-100.

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ments in question. The Commission had been informed by the CommissionerGeneral of the Diplomatic Conference of the steps the Swiss Government had undertaken to “seek appropriate participation of liberation movements recognized by intergovernmental regional organizations.” Thus far, however, these endeavours had failed to yield results since the liberation movements, or some of them, appeared to demand participation with full rights, including the right to vote. The reference in the Resolution to a status as “observers in accordance with United Nations practice”, far from resolving the issue, was merely designed to postpone it: at the time, there clearly was no such thing as a consistent United Nations practice in the matter, so that each delegation could read into the paragraph its own (or its Government’s) ideas about the modalities of participation by liberation movements. Notwithstanding its deliberate vagueness, however, the adoption of this paragraph amounted to an important decision of principle on an issue which was later to cause a great deal of trouble for the Diplomatic Conference. Resolution XIV dealt with the weapons issue. Endorsing the conclusion in the ICRC report that action was called for on the intergovernmental level, it urged the Diplomatic Conference “to begin consideration at its 1974 session of the question of the prohibition or restriction of the use of conventional weapons which may cause unnecessary suffering or have indiscriminate effects.” It also invited the ICRC to convene in 1974 a conference of government experts to “study in depth” the same question. This was a clear recognition that the matter of weapons prohibitions was in a less advanced stage of preparation than were the questions treated in the Draft Protocols. At the same time, the Resolution expressed with equal clarity the feeling of the Conference that effective action in this field was urgently required. In Resolution XII, the Conference expressed its views with respect to the dissemination of, and instruction in, the existing Geneva Conventions. Resolution XV, finally, requested the Diplomatic Conference to introduce into the Draft Protocols appropriate provisions to strengthen the role of national Red Cross societies, a question we will leave out of discussion here. In the 1973 session of the UN General Assembly the same Committees took cognizance of the various questions at issue in the preparation of the Diplomatic Conference as had been done in 1972. The documents before the Commissions included a brief report of the Secretary-General on recent developments concerning “human rights in armed conflicts” and a much longer, extensive survey of “existing rules of international law concerning the prohibition or restriction of use of specific weapons.” The latter document had been prepared by the Secretariat pursuant to the request contained in GA Res. 3032(XXVII).

37 38

A/9123, 19 Sept. 1973. A/9215 (Vols. I and II), 7 Nov. 1973.

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As for the general question of “human rights in armed conflicts”, the Sixth Committee and subsequently the General Assembly adopted two resolutions, one (Res. 3102(XXVII) of 12 Dec. 1973) an innocuous document with as its most salient feature an endorsement of the Teheran formula urging the invitation of national liberation movements recognized by regional organizations “to participate in the Diplomatic Conference as observers in accordance with the practice of the United Nations”. The other, Res. 3103(XXVII) of the same date, was as astonishing as Res. 3102 was innocuous. Under the title “Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist regimes” it “solemnly proclaimed” inter alia the following principles: that “armed conflicts involving the struggle of peoples against colonial and racist domination and racist regimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions”; that combatants on the side of the struggling peoples should be accorded prisoner-of-war status, and that mercenaries used by the other side should be punished as criminals. This Resolution, rushed through the Sixth Committee without any opportunity for discussion or even serious consideration and subsequently adopted in the General Assembly by a vote of 83 for, 13 against and 19 abstentions, was an evident attempt to prejudge the issues in question before the Diplomatic Conference had even started. In particular the last-mentioned “principle” concerning the position of mercenaries had an ominous sound as it obviously implied (although it did not say so openly) that captured mercenaries would not be granted prisoner-of-war status. It seems particularly regrettable that at the very moment that liberation fighters have come close to finding recognition as combatants entitled to treatment as prisoners of war, another category of combatants, objectionable though they may be, would be robbed of that status. Be this as it may, Res. 3103(XXVII) cannot be accepted as an accurate, let alone as an authoritative, statement of the law: on the contrary, it provided a clear case of abuse of block voting power. The question of conventional weapons is dealt with in Res. 3076(XXVII), adopted by the General Assembly on 6 December 1973 with 103 votes for, none against and 18 abstentions. In its operative part, this resolution went one step further than the Teheran resolution XIV had done; while that resolution had invited the Diplomatic Conference to start discussions on the subject, resolution 3076 asked the Conference to “consider” the questions at issue and “to seek agreement on rules prohibiting or restricting the use of such weapons.” The difference between the two texts cannot be explained by any significant developments which might have come about in the meantime: it can only be attributed to the fact that different persons participated in the drafting process. In this respect, it may seem somewhat paradoxical that the International Conference of the Red Cross, a humanitarian gathering by definition, was the one which had adopted the more cautious language; language, moreover, which was more in conformity with realistic expectations as to attainable goals.

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The protection of journalists engaged in dangerous missions in areas of armed conflicts, finally, was hardly brought any further. Indeed, growing opposition became apparent against the very idea of special protection being granted to the journalists in question: especially among representatives of Third World countries the feeling was widespread that this would really amount to a protection of the vested interests of the big news agencies and the Powers behind these, over the interests and, indeed, the sovereignty of their countries which were more than others exposed to the risk of being the scene of armed conflicts. In view of this opposition, GA Res. 3058(XXVIII) of 2 November 1973 was confined to a statement that adoption of a convention ensuring the protection of the journalists in question “would be desirable.” For the rest, the General Assembly solicited the comment of the Diplomatic Conference on the draft articles elaborated so far and the amendments thereto and decided to continue examination of the question at its next session; a set of decisions which clearly demonstrated the General Assembly’s waning interest in the idea of already made protection for journalists on dangerous missions. With these deliberations in the General Assembly, the preparations at the intergovernmental level for the Diplomatic Conference had come to an end. In January 1974, the Swiss Federal Council duly sent out invitations to participate in the Conference to all Governments of States party to the Geneva Conventions of 1949 or Members of the United Nations. As no solution acceptable to the Swiss Government had been found for the question of the participation of liberation movements, this thorny problem was left for the Conference to decide. So were the questions of admittance of Guinea Bissau and the Provisional Revolutionary Government in South Vietnam, both entities not recognized by Switzerland. Prior to turning our attention to the proceedings in the Diplomatic Conference, brief reference should be made to some documents bearing on the Draft Protocols or related subjects and prepared by various interested organizations. First, the Consultative Assembly of the Council of Europe, following the report of its Legal Affairs Committee, on 27 September 1973 adopted Recommendation 714 on current developments in international humanitarian law. In the Recommendation, the Committee of Ministers were asked to communicate the report to Member Governments and to invite them “to participate in the Diplomatic Conference in 1974 in a positive and liberal spirit.” Specifically, they were asked to lay emphasis on matters as diverse as the “rules applying to armed conflicts not of an international character”, on the one hand, on the other, the applicability of the “general principles of the law of war” to nuclear weapons. 39 40

Annexed to a note of the Secretary-General on the subject (A/9073, 9 July 1973). The report of the Legal Affairs Committee was published as Doc. 3336 on 13 Sept. 1973. The Recommendation invites the Committee of Ministers moreover to “study and promote the adoption of a system of supervision by an impartial international

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Another interesting document was the “Memorandum by NonGovernmental Organisations on the Two Draft Additional Protocols to the Geneva Conventions, 1949”, published shortly before the XXIInd International Conference of the Red Cross. The Memorandum, prepared by a Working Group of the Geneva Special NGO Committees on Human Rights and on Disarmament, offered comments and recommendations in respect of various Articles of the Draft Protocols. The group had been guided by certain fundamental principles which in their eyes “should inspire the rules of international humanitarian law in the future”: establishment of guarantees for effective application; application of fundamental humanitarian principles in all armed conflicts; no unlimited choice of means and methods of combat and targets for attack; protection of the civilian population ensuring their survival; prohibition of certain weapons, to be specified in the Protocols. Finally, SIPRI just days before the opening of the Diplomatic Conference published two documents, both bearing on the issue of conventional weapons. One, published in January 1974, was a proof edition of a Chapter on “Thermal effects of incendiary weapons on the human body”, destined to become Chapter 3 of a forthcoming book on “Incendiary Weapons”. This publication amounts to an improved and extended version of parts of SIPRI’s earlier Interior Report on incendiary weapons. The other document, published in February 1974 under the title “Working papers on international law and the prohibition of unnecessary injury”, opened with a discussion of international legal criteria for the choice of weapons of war, and specifically the principle that weapons should not cause unnecessary suffering or render death inevitable. In the light of that principle, the working paper went on to examine the characteristics and effects, in particular, of high velocity small arms and ammunition. 4 The Diplomatic Conference After all these preparations, would the Diplomatic Conference be a success? This was the question foremost in the minds of the delegates as they assembled for the opening session on 20 February 1974, in the main hall of the modern International Conference Centre at Geneva. It was obvious that numerous difficult problems would confront the Conference, but would it perhaps prove feasible to steer it clear of purely political controversy?

organ of the observance of the rules of humanitarian law” and to “intensify their efforts to ensure dissemination of and instruction in the international humanitarian conventions and their application, not only to military personnel at all levels, but also in schools and universities, including law schools, medical schools and teachers’ colleges.”

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Even during the opening session, this latter question found a – negative – answer in the speech delivered by the one Head of State who participated in the ceremony: Mr. Mokhtar Ould Daddah, President of the Islamic Republic of Mauritania, expressed his conviction that even in dealing with questions of humanitarian law one cannot leave aside the causes and see only the effects; after which he went on to deal with the causes and to denounce, in often vehement language, the actions of such countries as South Africa, Portugal and Israel, all of which he considered to be waging unjust wars – not to mention the many other evil deeds of which he accused them. Israel in particular was so heavily attacked that the Israeli delegation found it necessary to leave the meeting. The idea of the Swiss Government had been that immediately after the official opening session, plenary meetings would follow during which, in some two or three days, the delegations who wished to do so would deliver their general statements, after the questions of the rules of procedure and of the admission of certain non-invited entities would have been rapidly settled. It soon became apparent, however, that no such smooth progress was to be expected. Actually, after the opening session a whole week elapsed before another plenary meeting could even be convened. In the meantime, feverish attempts were made to solve what had become a crucial procedural problem: whether the Conference should first decide the question of invitations or give precedence to a provisional adoption of rules of procedure. It was finally decided that the question of invitations would be disposed of first, that is, without any previous decision on rules of procedure. In the event, one rule of procedure was nonetheless adopted as soon as the plenary meetings had been resumed: on the proposal of a large group of communist and Afro-Asian countries and against the opposition of a number of Western countries, it was resolved that to decide a question of invitation a simple majority of the representatives present and voting would suffice. Three questions relating to invitations were before the Conference: admission of Guinea Bissau (as a State), of the Provisional Revolutionary Government of South Vietnam (which had requested admission “as a Government”) and of national liberation movements. After a Soviet attempt to have these issues considered as one inseparable whole had failed, the admission of Guinea Bissau was quickly resolved with the adoption of a “consensus resolution”(i.e., without vote). The debate on the P.R.G. was more difficult. After all, this entity had found recognition as the legitimate Government of South Vietnam on the part of a great number of (mainly communist) States, and it had, prior to the opening of 41 42 43 44 45

Doc. CDDH/15. CDDH/13/Rev.2. CDDH/21. Third plenary meeting, 27 Feb. 1974; the voting was 64 to 28, with 14 abstentions. CDDH/12; fourth plenary meeting, 28 Feb. 1974.

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the Conference, sent to the Swiss Federal Council, as depositary of the Geneva Conventions of 1949, a letter communicating its formal accession to those instruments (which led to the argument that the Swiss Government should have invited the P.R.G. as of right). In the course of the debate, it became apparent that the communist countries were as strongly in favour of the admission of the P.R.G. as the United States and other Western States were against it, whereas in the African world there was decidedly less interest in this matter than in the previous one (the admission of Guinea Bissau). A roll-call vote finally decided the issue: with a narrow majority and many abstentions the draft resolution on admission of the P.R.G. was rejected (37 for, 38 against, 33 abstentions). A curious note was that North Vietnam did not take part in the vote: on the previous day, the delegation of that country had left the Conference as it could not accept that South Vietnam was represented by the “Saigon clique”. Even with the added vote of North Vietnam, however, the outcome would have been the same, in view of the previously adopted rule requiring a simple majority for any decision relating to invitations. There remained the question of admission of liberation movements. In a sense, this did not constitute a very difficult problem since the feeling was widespread that such movements ought to participate, one way or another, in this Conference on humanitarian law in particular. The only problem lay in the modalities of their participation. Here, the standpoints ranged from inclusion in the delegations of the regional organizations which recognized them, to admission in their own right and with full powers. It soon became apparent, however, that even among the most fervent proponents of admission, the African States, only a very few wanted voting rights for liberation movements at this stage. This led to the possibility of a compromise formula, which was accepted as a consensus resolution by the plenary meeting and which ultimately found a place in the Rules of Procedure. In wonderfully ambiguous language, the Rule in question grants full participation in the deliberations of the Conference and its main Committees to “National Liberation Movements recognized by the regional intergovernmental organizations concerned and invited by the Conference”, while at the same time withholding voting rights by laying down that “only delegations representing States will be entitled to vote.” As meanwhile the “regional intergovernmental organizations concerned” (i.e., the Organization of African Unity and the Arab League) had made up their

46 47 48 49

Letter dated 31 Oct. 1973, received by the Swiss Federal Council on 3 Dec. 1973 and notified to the other Parties to the Conventions by a note dated 18 Jan. 1974. CDDH/14; fifth plenary meeting, 28 Feb. 1974. CDDH/22; seventh plenary meeting, 1 March 1974. CDDH/2/Rev.l: Rules of Procedure; Chapter X, Rule 58: National liberation movements.

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minds about which movements to recognize, the representatives of the fourteen movements so recognized could hereupon take their seats. Two features of the procedural debate preceding the actual work on the Draft Protocols remain to be mentioned. First, it is worth putting on record that, in order to obtain an adequate geographical and political distribution of functions, it proved necessary to appoint nineteen Vice-Presidents. Among them was, curiously, the representative of Guinea Bissau; also the representative of Chile, this notwithstanding the vehement protests of the Soviet Union and some others. The other aspect concerned the question of conventional weapons. While the Swiss Federal Council had foreseen three main Committees (I: general provisions; II: the wounded, sick and shipwrecked; III: protection of the civilian population, means and methods of combat), no provision had been made for a Committee on weapons. At the instigation of Sweden and a number of other countries, the Conference decided to set up an Ad Hoc Committee for that purpose. The task of the Ad Hoc Committee was to “examine the question of prohibition or restriction of use of specific categories of conventional weapons which may cause unnecessary suffering or have indiscriminate effects, and to consider all proposals which are submitted to the Conference relating to such weapons.” The Committee would report to the Conference, and this report would be “transmitted to the ICRC with a view to assisting it in identifying questions and possibilities which need to be explored in depth by the Conference of Government Experts which it will convene in 1974 and in assisting it in finding the most suitable mandate and mode of organization of that Conference.” Not all delegations were unqualified supporters of the establishment of this Ad Hoc Committee. The main objection was that work on possible prohibitions or restrictions on the use of conventional weapons had not yet reached the same stage of maturity as the subject-matter dealt with in the Draft Protocols, and consideration of these Draft Protocols should not be hampered by too much attention being given to the weapons issue. In order to meet this objection, the Ad Hoc Committee was given a status slightly different from that of the three Main Committees, in that its Rapporteur was not included among the ex officio 50

51 52

The list was as follows: the Palestine Liberation Organization (PLO), the Mozambique Liberation Front (FRELIMO), the Angolan People’s Liberation Movement (MPLA), the Angolan National Liberation Front (FNLA), the African National Congress (ANC), the Pan-Africanist Congress (PAC), the Zimbabwe African National Union (ZANU), the South-West African People’s Organization (SWAPO), the Somali Coast Liberation Front (FLCS), the Djibouti Liberation Movement (MLD), the Seychelles People’s Unity Party (SPUP), the Sao Tome and Principe Liberation Movement (MLSTP) and the Comoro National Liberation Movement (MOLINACO). Seventh plenary meeting, 1 March 1974. CDDH/23; ninth plenary meeting, 4 March 1974.

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members of the Drafting Committee. Notwithstanding this gesture, the resolution on the establishment of the Committee failed to find consensus; when put to the vote, it was adopted by 68 votes to none with 10 abstentions. After all these preliminary questions had been settled, the Conference at long last started on its real work with a general debate, which dragged on until 11 March 1974. Then, in the fourth week of the Conference, it finally split up into its Committees for the detailed examination of the Draft Protocols. Needless to say, precious little time remained for that purpose. Nevertheless some interesting decisions could still be arrived at, first of all on the question of the status of wars of national liberation. This question immediately confronted Committee I as it began the discussion of Article 1 of Draft Protocol I, bearing on the scope of the Protocol. As it had already transpired from the general debate, many delegations supported the idea that wars of national liberation belong to the category of international armed conflicts. Amendments to this effect were introduced at an early stage. Initially, there were essentially two varieties; one proposed to provide in a new paragraph that “armed conflicts where peoples fight against colonial and alien domination and against racist regimes” fall under the international armed conflicts referred to in Article 2 of the 1949 Geneva Conventions; according to the other, the situations to be brought under the scope of Article 2 would include “armed struggles waged by people in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and defined by the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” The difference was mainly one of approach: whereas under the first version certain named situations would be included among the international armed conflicts, the second provided an abstract definition which, in the eyes of its authors, would lead to exactly the same situations being deemed international armed conflicts as the proponents of the more specific formula had in mind but which, on the other hand, could be used to cover other situations as well. Against this massive attack, a small group of mainly Western States placed another proposal the purport of which was to leave Article 2 of the Geneva Conventions and, with that, the scope of Draft Protocol I unchanged but to add a paragraph which would reaffirm the famous Martens clause in the preamble 53 54 55 56 57

The present author acted as Rapporteur of this Ad Hoc Committee. Ninth plenary meeting, 4 March 1974. Tenth to nineteenth plenary meetings. CDDH/I/5, originally proposed by Algeria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, the Soviet Union and Tanzania. CDDH/I/11, originally proposed by Algeria, Australia, Cameroon, Egypt, Ivory Coast, Kuwait, Libya, Nigeria, Norway, Pakistan, Sudan, Syria, Democratic Yemen, Yugoslavia and Zaire.

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to the Hague Regulations of 1899/1907, by stating that “in cases not included in this present Protocol or in other instruments of conventional law, civilians and combatants remain under the protection and the authority of the principles of international law, as they result from established custom, from the principles of humanity and the dictates of public conscience.” The idea behind this proposal was that what really counted was to achieve protection also for the victims of wars of national liberation, and that this could most effectively be achieved by the reiteration of the Martens clause in Draft Protocol I, combined with the best attainable guarantees in Draft Protocol II. Not surprisingly, the proponents of the idea of bringing wars of national liberation under the scope of Article 2 of the 1949 Conventions were not at all impressed by this Western proposal. In fact, they did not even regard it as an alternative to their ideas but rather as a useful addition. They therefore merged the various amendments into a formula which ultimately, after prolonged negotiations in particular between the sponsors of the two types of amendments mentioned above, read as follows: 1.

2.

3. 4.

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The present Protocol, which supplements the Geneva Conventions of 12 August 1949 for the Protection of War Victims, shall apply in the situations referred to in article 2 common to these Conventions. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. The High Contracting Parties undertake to respect and to ensure respect for the present Protocol in all circumstances. In cases not included in the present Protocol or in other instruments of treaty law, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

CDDH/I/12; Argentina, Austria, Belgium, Federal Republic of Germany, Italy, the Netherlands, Pakistan, United Kingdom. The amendment also contained a (first) paragraph repeating Art. 1 of the Geneva Conventions, whereby the Parties to the Protocol would “undertake to respect and to ensure respect” for it in all circumstances. CDDH/48 (Report of Committee I), para 14.

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This text, when put to the vote in Committee I, mustered an overwhelming majority: it was approved by 70 votes to 21, with 13 abstentions. Thus, the idea that a renewed Martens clause, or an addition to Article 42 on prisoners of war, could be an acceptable solution for the problem posed by present-day wars of national liberation had been effectively killed. It remained to be seen what the Conference would do with this crucially important Committee decision – and what influence it would have on the rest of the Draft Protocols. It was realized in many quarters that a formal adoption of the new text for Article 1 by the Conference in plenary meeting would be premature, in view of the little work done on other Articles of the Draft Protocol. There was, moreover, a serious risk that such a formal decision of the Conference would lead to the departure of important States such as the United States and other Western Powers. In feverish, often fascinating negotiations between the two sides it proved finally feasible to find a formula which gave the greatest possible weight to the decision taken in Committee I without the Conference actually endorsing it: in the report of Committee I a clause was inserted whereby the Committee “recommended” the new text of Article 1 “for adoption by the Conference”, and in a resolution subsequently adopted without vote in plenary session, the Conference “adopting the report of Committee I, containing its recommendation … welcomes the adoption of article 1 of Draft Protocol I by Committee I.” While this language avoided irreparable damage being done to the Conference, there was always the question of the effects of the decision on the remaining Articles of the Draft Protocols. An attempt was made, mainly by the representative of Canada (who was one of the key figures in these negotiations), to get the Conference to set up an “inter-sessional working group”, to be charged with the task of considering these effects. Although there was much merit in this suggestion, the majority feared that the group would unavoidably become entangled in attempts to undo the decision taken by Committee I and consequently refused to go along with the suggestion. It will therefore remain for the second session of the Diplomatic Conference to consider this question of the effects of the decision taken with respect to Article 1, on the rest of the Draft Protocols. How should one evaluate this decision taken by Committee I and “welcomed” by the Conference? First, contrary to what I suggested with regard to the adoption of GA Res. 3103(XXVII) containing “Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist regimes”, and despite the fact that essentially the same bloc of States was behind the decision of Committee I as had been responsible for the GA resolution, it would be wrong simply to dismiss it as yet another instance of abuse of block voting power. The matter was thoroughly discussed, weighty arguments were advanced from either side and there was ample opportunity for negotiation. True, the exchange of arguments did not result in a consensus being achieved 60

CDDH/53.

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among the delegations participating in the debate, but it certainly served the purpose of clarification and a better understanding of each other’s views. I for one am convinced, moreover, that at least a number of those who spoke in support of the proposition that wars of national liberation are international armed conflicts, did so out of a genuine conviction that this was the legal construction most closely conforming to contemporary international law. (Others, of course, had only political motives.) Yet, I find it hard to accept the decision as the right one. Notwithstanding all the arguments advanced in support of it (that the peoples struggling against colonial domination etc. have a separate status under international law, that their struggle really amounts to an act of self-defence against aggression, and so on) it remains that one is confronted here with armed conflicts taking place within the territory of a single State; armed conflicts, moreover, which vary widely in scope and intensity. Actually, from the point of view of humanitarian law there would be more reason to assimilate fully-fledged civil war to international armed conflicts than the category of wars of national liberation. Yet, none of the protagonists of the decision at issue suggested that civil wars should also be brought within the scope of Article 2 common to the Geneva Conventions. It is this element of arbitrariness in selecting one particular, politically determined, category of non-interstate armed conflicts which to my mind is most in conflict with proven principles of legislation. My judgment would be different if the new rule were to apply solely to those instances of wars of national liberation where the level of organization on the side of the liberation fighters, the intensity and character of hostilities and so on would have assumed proportions where a comparison with international armed conflicts could reasonably be made and application of the rules, laid down for those conflicts could therefore reasonably be expected. And indeed, one of the supporters of the new rule in a private conversation with the present author conceded that he really saw only one single instance where it could have found application, that is, the Algerian war. This may be going to the other extreme, but a grave objection to the text as adopted by Committee I, besides the question of arbitrariness in selection, lies in that it fails to provide any indication of the level at which a “struggle” assumes the character of an armed conflict. Put another way, the risk is that the formula accepted by Committee I will find application in situations where the suggestion that international humanitarian law should apply in toto really is utter nonsense. For these reasons, one would hope that a reconsideration of the text of Article 1 as adopted by Committee I would still be possible. But it should be immediately added that this seems a remote chance, in view of the attitude of the victorious bloc who appear to consider the outcome of the vote as a virtual res judicata. In the other main Committees, no such crucially important decisions were brought about. As, moreover, the work on the draft Articles allotted to the various Committees has only just begun, it may suffice to make brief mention of

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a tendency which once again became apparent, especially in the deliberations in Committee III bearing on the protection of the civilian population, to “go humanitarian” in an extreme way and to plead for rules the effect of which would be to render the civilian population immune from the dangers of war. Needless to say, this would never be anything but immunity on paper, a legal immunity which would not provide any real protection against the bombs and the handgrenades which the civilian population has increasingly learned to expect in any armed conflict. Instead of improving its situation, such rules would by their disregard lead to the virtual absence of any effective legal protection for the civilian population. The proposed articles relative to the special protection of journalists engaged in dangerous missions transmitted by the General Assembly to the Diplomatic Conference received scant attention. Committee I, to which this item had been allotted, was not prepared to give it priority over the other matters on its agenda and decided to postpone it to the next session of the Diplomatic Conference. The Ad Hoc Committee on weapons, finally, did useful work in that it accomplished a tour d’horizon of the entire field before it. Indeed, the scope of the discussions was even wider than those who urged its establishment had had in mind: among the subjects discussed in the general debate were, besides conventional weapons, also nuclear weapons, disarmament, air superiority in armed conflicts involving unequal forces, and so on. As for conventional weapons proper, the various statements provided a clear indication of a willingness to go ahead with the debate, first of all in the conference of government experts which the ICRC intended to convene sometime in 1974. An attempt was made in some quarters to induce the Committee to adopt without hesitation rules prohibiting the use of incendiary weapons, but this attempt failed as the Committee had no mandate to go such lengths. Yet, there can be little doubt that incendiary weapons will be among the first whose use will be curtailed by legal regulation. Summing up, it may be stated that the first session of the Diplomatic Conference on humanitarian law, although far from a great success as a legislative effort, was not a complete failure either. It succeeded in overcoming some critical political difficulties and it made a useful start on the work on the Draft Protocols. Once that start had been made a degree of enthusiasm for the work at hand became apparent, which provides courage and at least a modicum of optimism for the next session of the Conference, planned for February-April 1975.

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CDDH/50 (Report of Committee III), in particular para. 49. CDDH/47 (Report of Ad Hoc Committee on Conventional Weapons).

Chapter 6 Applicability of Customary International Law in Non-international Armed Conflicts*

1

Introductory Remarks

Since some years now we are engaged in an exercise usually referred to as the “reaffirmation and development of international humanitarian law applicable in armed conflicts”, an exercise which thus far has led to the publication by the ICRC of two draft Protocols additional to the Geneva Conventions of 1949: one for international armed conflicts and the other destined to govern non-international armed conflict. While both draft Protocols give rise to many interesting questions, those raised by the last-mentioned Protocol are perhaps the more vexing ones. Questions asked are: what will be the relationship between this Protocol and Article 3 common to the Conventions; what boundary line will separate international armed conflicts from non-international ones; and what will constitute the lower boundary where non-international armed conflicts are distinguished from situations of political tension, riots and the like? These questions, no matter how interesting, shall not be discussed here. Instead, an even more perplexing problem will be dealt with, viz., to what extent the contents of draft Protocol II can be said to constitute a “reaffirmation” of existing humanitarian law and to what extent they should be regarded as a development of that law. In the terms of Article 13(1)(a), of the United Nations Charter: how much is codification of the law and how much progressive development?

* 1 2

Published earlier in A. Cassese (ed.), Current Problems of International Law (1975). pp. 276-285. For the history of this movement, see the articles by this author in the Netherlands Yearbook of International Law, vols. II (1971) p. 68 and III (1972) p. 18. In the course of the first session of the Diplomatic Conference on humanitarian law (Geneva, Feb.-March 1974) Commission I decided by a large majority to count wars of national liberation among the international armed conflicts.

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2 The Thesis Stated: The ICRC Draft Protocol Additional to Art. 3 of the 1949 Geneva Conventions Partly Codifies and Partly Progressively Develops International Humanitarian Law It is usually agreed that the distinction between these two notions more often than not is extremely difficult if not impossible to make and that, in fact, in any drafting exercise codification and progressive development will be found to be indissolubly intermingled. Yet, it can be of the utmost importance to know whether a given treaty provision amounts to the codification of a pre-existing rule of customary law or, rather, constitutes new law. While this is true in general, it is all the more so in a situation such as the present one, where the Protocols are still in the drafting stage and the eventual acceptance especially of the second Protocol is still very much an open question. In these circumstances, it would be extremely helpful if provisions contained in draft Protocol II could be said to have the status of rules of customary international humanitarian law and therefore already now to be binding on parties to non-international armed conflicts. At first glance, the chances of such a finding may seem remote. Does not the case of the non-international armed conflict, a traumatic experience in the life of any nation, entail the most drastic claims of state sovereignty and the most vehement rejections of all outside intervention on behalf of the insurgent party? Surely, anyone who ventures to suggest that a state involved in, or rather living through, such a situation of internal conflict “threatening the life of the nation” already now is restricted in its freedom of action by existing rules of customary international humanitarian law, must dispose of an unusually great dose of courage. Yet, this is precisely the point we hope to make: not, to be sure, that the contents of draft Protocol II in their entirety belong to the body of customary international law but, rather, that some of the more basic precepts contained in that document do in fact possess that status. My thesis is, in other words, that draft Protocol II contains a mixture of “reaffirmation” and “development” and that therefore, even if it would ultimately fail to be adopted, parties to non-international armed conflicts are and remain bound to respect the basic precepts in question. 3

Difficulties in Demonstrating the Thesis

Having put forward this thesis, the logical next step is for me to demonstrate its tenability. Here, however, we meet a first tremendous difficulty. It is con3 4

This was a crucial question, e.g., in the Continental Shelf Cases, ICJ Reports (1969), p. 4. European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 15.

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nected with the traditional view of international customary law as the body of law grown, and still growing, among States out of their international practice combined with a sense of right or obligation. This traditional view, which may probably be considered sufficient to cope with the problems arising out of interstate relations in the classical sense of relations of coexistence, does not bring us very far in the particular field we are discussing here, for two reasons: the modern law of armed conflict does not to any appreciable extent constitute “court law”, and States cannot in any meaningful sense of the term be regarded as the real actors of this body of law. In earlier times, when the waging of war still was an honourable profession virtually reserved to the knights, the law of arms which governed their conduct developed largely through the process of judicial decision. Similarly, admiralty courts were instrumental in clarifying and developing prize law as perhaps the most important part of the law of sea warfare, a function these courts continued to perform well into the present century. In sharp contrast to this picture, States presently show very little inclination to see their wartime behaviour submitted to the test of judicial assessment. One manifestation of this negative attitude is the tendency to exclude disputes arising out of armed conflicts from the acceptance of the compulsory jurisdiction of the International Court of Justice in accordance with Article 36(2) of its Statute. This acceptance is in itself a rare occurrence, and its effect may moreover be considerably weakened by reservations attached to the instruments of acceptance. The reservation mentioned a moment ago is a case in point, excluding as it does an important category of disputes from the jurisdiction of the Court. Another manifestation of the tendency to avoid judicial appraisal of wartime events may be seen, paradoxically, in the very trials staged after the Second World War at Nuremberg and Tokyo. Not only were the vanquished the only ones who were brought to trial before these international tribunals, but a question crucial to the law of The Hague, viz., aerial bombardment of the civilian population, was not imputed to them, presumably because this could not have failed to implicate the victors as well. It is a curious reflection that the only forum which had to pronounce on a particular aspect of this issue, viz., the legality or otherwise of

5 6 7 8 9

On the subject of customary law, see generally A.A. D’Amato, The Concept of Custom in International Law (1971). M.H. Keen, The Laws of War in the Late Middle Ages (1965). J.H.W. Verzijl, Le droit des prises de la Grande Guerre (1924). F. Kalshoven, Belligerent Reprisals (1971), p. 369. Similarly, the Nuremberg Tribunal refused to convict Dönitz for unrestricted submarine warfare, because the Allied had resorted to the same practice; ibid., p. 364.

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the nuclear attacks on Hiroshima and Nagasaki, was a Japanese municipal court which in 1963 arrived at the conclusion that these had been unlawful. The second point I mentioned was that States can hardly be regarded as the real actors of the law of armed conflicts. Of course, international law normally is conceived as the law governing relations among States, and there is no denying that the law of armed conflict, as part of international law, partly fulfils that very function. Treaties concerning this body of law are concluded between States, and States are to a certain extent the focus points of responsibility for its implementation and, in a negative sense, for its violations. However, it is an obvious fact that its real implementation depends on those thousands or even millions of people who are involved in the armed conflict, whether as members of the armed forces, as irregular fighters, or as civilians. Indeed, in a certain measure it is their acts which create the law, since their consistent patterns of conduct may lead to the formation of new customary law. Their individual penal responsibility for violations, moreover, although far from constituting an ideally effective sanction behind the law of armed conflict, at all events is a far more important means of enforcement than the primarily financial responsibility of the State, which indeed at best amounts to little more than a theoretical possibility. Phrasing this point in slightly different terms, one could refer to the widely recognized need for the broadest possible dissemination of the law of armed conflict among the population of all States. This amounts to recognition that it is they who are the real actors in armed conflicts, and that the issue at stake is their standard of behaviour rather than that of the fictitious entity called “State”. Viewed from this angle, the law of armed conflict may be understood in its real significance as a code of human behaviour for all those individuals involved, one way or another, in an armed conflict, or, with a term of Schwarzenberger, as a standard of civilization. In this sense too, it seems perfectly apposite to refer to the customary law of armed conflict. It seems to me that the judgment of the Nuremberg Tribunal has to be understood in this sense when it states that by the time of the Second World War the Hague Regulations of 1899, revised in 1907, had come to be recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war.

10 11 12 13

The Shimoda Case, Tokyo, December 1963; see, e.g., L. Friedman, The Law of War, a Documentary History (1972) p. 1688. F. Kalshoven, The Law of Warfare (1973) p. 109. G. Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. II: The Law of Armed Conflict (1968), pp. 10 et seq., 109 et seq. Friedman, op. cit., pp. 922, 961.

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4 The Thesis Demonstrated Turning back now to our original question: whether and to what extent customary international law can be said to be applicable in non-international armed conflicts, a first and obvious remark is that it would be very strange indeed if completely different codes of conduct, or standards of civilization, would apply according as the conflict should be classified as international or non-international. This all the more so in view of the increasing difficulty to determine whether particular armed conflicts belong in one or the other category. There are, of course, clear cases, such as the Second World War which undoubtedly constituted an international armed conflict, or the recent events in Chile which equally doubtless amounted to an internal one. Already here, however, a word of caution is in order: there are those who hold that a conflict involving fundamental human rights issues by that very token can no longer be regarded as an internal conflict. While this, to my mind, is an erroneous conclusion as far as the law of armed conflict is concerned, it surely demonstrates in the clearest possible way the difficulty mentioned a moment ago. My suggestion is not that there would be no difference whatsoever between the two categories of armed conflicts. We are all aware that especially in the sphere of the law of Geneva, different conventional regimes have been brought about, with a detailed and indeed highly intricate set of rules for international armed conflicts and a single brief Article devoted to “armed conflicts not of an international character” (Art. 3 common to the four Geneva Conventions of 1949). I do suggest, however, that notwithstanding this sharp difference in legal regimes as they appear from the written instruments, it would be astonishing indeed to find that the underlying customary codes of conduct applicable in the two situations really have nothing in common. After all, although the two forms of armed conflict may differ in some important respects, they certainly hold in common other basic features which are inherent in the very idea of armed conflict. Besides this general and necessarily vague idea “that the codes of conduct for the two types of armed conflict should have certain elements in common”, there are other indications which to my mind reinforce this idea and hence tend to support my thesis that certain rules and principles of customary law are applicable in non-international armed conflicts. First, there is the Lieber Code. The “Instructions for the Government of Armies of the United States in the Field”, as the document is formally named, were written by Lieber at the request of the President of the United States to be applied by the Northern forces in the American Civil War, an internal armed conflict in the strict sense of the term. Its contents Lieber derived from his knowledge of the law of war (as it was 14 15

Kalshoven, The Law of Warfare, op. cit., p. 13. D. Schindler & J. Toman, The Laws of Armed Conflicts (1973), p. 3; Friedman, op. cit., p. 158.

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then styled), a law which had developed as customary law in the course of many, mainly European, interstate armed conflicts. True, the American Civil War was also characterized by the practices of a man like General Sherman, who started from the principle that “[t]he only possible way to end this unhappy and dreadful conflict … is to make it terrible beyond endurance.” This is the idea of total war, an idea, for the rest, which by no means is connected with internal armed conflicts alone but which equally often is proposed (and sometimes brought into practice) by generals in the course of international armed conflicts. As Lieber had not hesitated to use the existing customary law of armed conflict, notwithstanding its origin, for the American Civil War, so, conversely, there was no hesitation among the delegates to the Brussels Conference of 1874 and, later, to the Hague Peace Conferences of 1899 and 1907, to use the Lieber Code as a basis for the codification of the law of armed conflict in what ultimately would become the Hague Regulations on Land Warfare of 1809-1907. This in spite of the fact that these Regulations, an annex to the Hague Convention of the same name, by virtue of the express text of that Convention were destined to be applied solely in case of war between two or more contracting Powers, that is: States. The travaux of the first Hague Peace Conference provide another argument in favour of my thesis. Among the matters discussed was the question whether the use of so-called dum-dum bullets should not be prohibited, a question which eventually found an affirmative answer in the Declaration concerning Expanding Bullets adopted by the Conference and in which the contracting Parties agreed “to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.” Like the Hague Regulations, the Declaration is only binding in the case of a war between two or more contracting Powers. Yet, in the discussions preceding its adoption the main objection came from the British representative, General Sir John Ardagh, who argued that in recent military campaigns in the British Indies dum-dum bullets had been found to constitute an indispensable means for the British Army effectively to stop the attack of a deter-

16

17

18 19

As quoted in B.V.A. Röling, De positie van de niet-bezette burgerbevolking in een gewapend conflict, in het bijzonder met het oog op de massaal werkende strijdmiddelen (NBC-wapens) (“The position of the unoccupied civilian population in an armed conflict, in particular with regard to weapons of mass destruction (NBC-weapons)”) (1970) p. 59. J. De Breucker, “La Déclaration de Bruxelles de 1874 concernant les lois et coutumes de la guerre”, in 27 Chronique de politique étrangère (1974) pp. 3-87; Kalshoven, Belligerent Reprisals, op. cit., p. 46. Art. 2; the text of this Article is not identical in the 1899 and 1907 Conventions, but for our purposes the differences are immaterial. Schindler & Toman, op. cit., p. 103; Friedman, op . cit., p. 247.

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mined indigenous enemy. Clearly, this representative never doubted that experiences gained in internal military actions in the Indies were relevant to the debate on prohibition of use of certain bullets in international armed conflicts. It is perhaps permissible to include in this list of arguments favouring my position the discussions relative to the Geneva Gas Protocol of 1925. This Protocol prohibits, inter alia, “the use in war of asphyxiating, poisonous or other gases”, and from the outset one of the main problems arising out of this text has been whether it includes teargas and other so-called “riot control agents”. For most countries, it does; but the United States has always maintained grave objections against this interpretation. Its underlying concern – and one of the reasons why it finally did not ratify the Protocol – was that the text when given this broad meaning would not only exclude the use of such substances in war, against an enemy, but also, by implication, would throw doubt on the legality of their use by the police as riot control agents. At another occasion, in the course of the second phase of the League of Nations Disarmament Conference (1930-1933) the United States delegate expressed his government’s willingness “to forego the use of lachrymatory substances for military purposes in wartime as this might give rise to abuse” but at the same time “strongly urged that the use of lachrymatory gases for police purposes and for protecting private property should be permitted.” The distinction made here by the United States is between use in war and use for police purposes, not between use in international or internal armed conflicts. One could add that the Protocol itself refers only to “war” and not to “war between contracting Parties”. It would, however, be less than fair to conclude that the Protocol is – or the United States believed the Protocol to be – applicable in internal as in international armed conflicts. On the other hand, it seems admissible to point to the necessary connection the United States has always emphasized between the prohibition contained in the Protocol and the use made domestically of teargas and similar substances. How little justified the above conclusion would be, may be demonstrated with two quotations. In 1949, in. the course of the deliberations in the Diplomatic Conference on what was to become common Article 3, the US representative Yingling proposed that in case of non-international armed conflict “all combatants should be entitled to the protection as stated by the humanitarian principles of the Convention.” In support of this proposal, he gave the following example: “The use of poison or gas for instance was prohibited by international law; but 20 21 22 23

Conférence internationale de la paix, La Haye 18 mai - 29 juillet 1899, 2me partie, pp. 4-5, 50. Schindler & Toman, op. cit., 109; Friedman, op. cit., p. 454. SIPRI, The Problem of Chemical and Biological Warfare, Vol. III: CBW and the Law of War (1973) p. 53. Ibid., Vol. IV: CB Disarmament Negotiations, 1929-1970 (1971), p. 153.

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international law only applied to wars between States, and the prohibition should be extended to cover civil wars also.” Again, UNGA Resolution 2603A (XXIV), adopted on 16 December 1969 is expressly restricted to the use of chemical and biological means of warfare in international armed conflicts. Yet this cannot decide the question whether the existing customary prohibition of chemical warfare has, perhaps, a wider scope of application than is attributed to the conventional instruments in the above quotations. To this question I shall revert below. The point I wanted to make at this stage was a modest one, to wit, that the debate on the correct interpretation of the Gas Protocol shows a certain natural tendency to think of internal situations when discussing a prohibition on wartime use of a means of warfare that need not in its application be limited to international armed conflicts. The discussions on non-international armed conflicts in the Geneva Diplomatic Conference of 1949 provide the next step in my argument. While the various formulas discussed for the regulation of such conflicts differ widely, ranging from the overly optimistic proposition that the parties to an internal armed conflict would have to apply the Conventions in toto to the unduly restrictive enumeration of principles which was ultimately adopted, it was never a matter of doubt that some sort of provision ought to be made for the situation of noninternational armed conflict. The difficulties were of course enormous, for when the attempt is made to provide conventionally for a situation which, as noted, cuts deep into the heart of what States traditionally regard as their domestic jurisdiction and in which moreover one of the parties to the conflict cannot be a party to the convention, it is only to be expected that unwilling States will bring into play all the arguments and objections which the traditional law of treaties can provide. In this light, the final adoption of common Article 3 is a most remarkable event. To my mind, it demonstrates the realization on the part of the delegates that there exists a standard of civilization applicable in non-international armed conflicts as well, and that it would be ludicrous not to give this basic fact any recognition in the Geneva Conventions. Express recognition that there is a common code of conduct came finally in the course of the endeavours to achieve better protection for the civilian population against the dangers of war. While the original version of the Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, published by the International Committee of the Red Cross in 1955, 24 25 26

Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section B, p. 99. Schindler & Toman, op. cit., p. 126. G.I.A.D. Draper, “The Geneva Conventions of 1949”, in 114 Recueil des Cours (1965), p. 82 et seq., in particular p. 99; for the drafting history of Art. 3, see too the Commentary to the Geneva Conventions of 1949 published under the general editorship of Jean S. Pictet, Vol. I (1952), p. 38.

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was silent on the question of their application to internal armed conflicts and, indeed, owing to express references to the “enemy” and to the system of supervision by Protecting Powers could hardly be deemed suitable to be applied in such conflicts, the second version published in 1956 under the title “Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War” stated in so many words that the rules would apply, inter alia, “in the event of an armed conflict not of an international character.” In its commentary, the International Committee of the Red Cross explained that certain modifications had been brought to the 1955 text and that, hence, there appeared to be no reason why the general rules proposed in the draft text should not be applied in noninternational armed conflicts. While the ICRC in these Draft Rules and in the attached commentary carefully avoided to mention whether in its view application of the rules in noninternational armed conflicts would constitute a novelty or be a matter of customary international law, the XXth International Conference of the Red Cross held in Vienna in 1965 did not hesitate, in Resolution XXVIII on the Protection of Civilian Populations against the Dangers of Indiscriminate Warfare, solemnly to declare “that all Governments and other authorities responsible for action in armed conflicts should conform at least” to a number of basic principles enumerated in the text. This language had been expressly chosen to make it clear that “armed conflicts” included the non-international ones. It is generally agreed that the principles enumerated in the Resolution belong to customary international law. The International Conference on Human Rights (Teheran, 1968) in Resolution XXIII urged the Secretary-General of the United Nations to study “steps … to secure the better application of existing humanitarian international conventions and rules in all armed conflicts” as well as the need for completion or revision of humanitarian law “to ensure the better protection of civilians, prisoners and combatants in all armed conflicts.” Hereupon, the General Assembly in December 1968 unanimously adopted the by now famous Resolution 2444 (XXIII) which endorses both the principles mentioned in the Vienna Resolution (minus one, which was concerned with the application of existing law of armed conflict to nuclear warfare) and the ideas expressed in the Teheran Resolution. In both cases, the reference to “all armed conflicts” was maintained, it being understood that this term includes the non-international variety. Even clearer is the language used two years later by the General Assembly in Resolution 2675 27 28 29 30 31

Art. 2(b); Schindler & Toman, op. cit., p. 180. The ICRC in 1958 published a second edition of the Draft Rules; in this publication, the 1955 version is reprinted at p. 139. Draft Rules, 2nd ed. (1958), p. 41. Schindler & Toman, op. cit., p. 187. Ibid., p. 190. Ibid., p. 191; Friedman, op. cit., p. 699.

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(XXV): this simply affirms the “basic principles for the protection of civilian population in armed conflicts.” The venerable Institut de droit international had meanwhile, at its Edinburgh session of 1969, chosen for the same position. In its Resolution on the “distinction between military objectives and non-military objects in general and particularly the problems associated with weapons of mass destruction” it noted that the rules set out in the text “form part of the principles to be observed in armed conflicts by any de jure or de facto government, or by any other authority responsible for the conduct of hostilities.” A clearer expression of the idea that these customary principles were applicable irrespective of the type of armed conflict is hard to conceive. This brings to an end my list of arguments supporting the thesis that certain basic precepts of international humanitarian law of armed conflict apply customarily in non-international armed conflicts as well. Admittedly, the arguments are of unequal force; in particular those derived from the earlier history of the modern law of armed conflict can prove little more than that an awareness of the link between the two types of armed conflict was never wholly absent. But it seems hard to deny that the various discussions held and resolutions adopted in the years since 1949 militate strongly in favour of my proposition that there can be no two completely different standards of civilization, depending on whether the situation amounts to an international or an internal armed conflict. The resolutions adopted by the General Assembly and the Institut de droit international to my mind constitute the most authoritative confirmation of this thesis I could ever wish to obtain. 5 The Thesis Specified: The Basic Precepts of Customary International Law Applicable in Internal Armed Conflicts Considering my thesis proven, not “beyond a reasonable doubt” but as far as at all possible in such a delicate and controversial question, it remains for me to examine briefly which are the basic precepts of international humanitarian law applicable, as a matter of customary law, in non-international armed conflicts. To begin with the law of warfare proper, principles relative to the protection of the civilian population are the first to fall within this category. True, the risks run by non-participants in the course of an internal armed conflict are even greater than in an international one and this irrespective of whether the fighting takes the form of guerrilla warfare or aerial bombardment. This may be so, but the basic principle of distinction between participants in hostilities and the civilian 32 33 34

Schindler & Toman, op. cit., p. 195. Ibid., p. 193. For an explanation of the use of this term, see Kalshoven, The Law of Warfare, op. cit., p. 27.

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population applies here as well, and so do the principles that attacks should be directed solely against military objectives and that in doing so the civilian population should be spared as much as possible. Terror attacks, to take an example, are equally abhorrent to the public conscience whether committed in an internal or in an international armed conflict. On the other hand, a technically precise rule of proportionality (controversial even in the case of international armed conflict) obviously cannot be held applicable in an internal armed conflict. Then, certain principles concerning the use of means and methods of warfare apply: thus, the prohibition to employ means of warfare “calculated to cause unnecessary suffering” (in the language of Article 23(e) of the Hague Regulations) and the prohibition to employ perfidious means or methods of warfare. Here too, the latter prohibition obviously encounters even greater difficulties in non-international than in international armed conflicts. This cannot however detract from the value of the prohibition as a basic precept of conduct. Perfidious use of the Red Cross sign, for instance, is as much a war crime in internal as it is in international armed conflicts. Always in the sphere of the law of warfare, I do not hesitate to include in my catalogue the (few) existing rules prohibiting use of specific weapons, notably poison, the dum-dum bullet and chemical and bacteriological means of warfare. This, of course, is in flat contradiction with the statement of the US representative Yingling that “international law only applies to wars between States”; but this does not trouble me a great deal, because that statement really is a nonsense: it may be true with respect to international treaty law (with the notable exception of Article 3 common to the Geneva Conventions of 1949) but it simply fails to take into account the existence of customary international law. Indeed, I fully agree with the statement in “CBW and the Law of War” that “it is a generally accepted principle that the rules of the international law of war which concern weapons also apply in conflicts not presenting an international character”, a statement which the author of that publication relates “to the fact that these rules are normally regarded as having a humanitarian character and as being imposed by general standards of civilization.” Turning next to the area of the law of Geneva, the basic principles concerning treatment of the wounded and sick and humane treatment of the adversary who has laid down his arms belong to the code of conduct for non-international armed conflicts. Applicability of these principles has, for that matter, found authoritative confirmation in Article 3 of the Geneva Conventions of 1949. This ends my list of basic precepts customarily applicable in non-international armed conflicts. Each of the items on the list could of course be elaborated upon, but it is not here the place to do this. Instead, it seems useful to mention some notions basic to the law of armed conflict which do not apply in internal armed conflicts, at least not as a matter of customary international law. These are: 35

SIPRI, CBW and the Law of War, op. cit., p. 31.

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the principle of non-liability to punishment of captured adversaries for the fact of their participation in hostilities (a principle basic to the prisoners of war regime in the Geneva Convention) and the principles of non-annexation of territory and of non-allegiance of the population in case of occupation. Furthermore, it seems safe to state that all those sophisticated rules of the Conventions which actually presuppose a highly organized governmental apparatus have no place among the principles applicable in non-international armed conflicts as a matter of customary law, nor, indeed, as necessary elements of the standard of civilization. 6 The Impact of the Law of Human Rights on the Law of Armed Conflict In the foregoing I have discussed the question of applicability of certain standards of conduct in non-international armed conflicts solely as a problem of the law of armed conflict. This discussion would however be incomplete without some reference to the impact these standards are bound to undergo from the emerging law of human rights. Admittedly, there are important differences between the law of armed conflict and human rights law, both as regards origin, subject-matter (respectively, relations between enemies and between the citizen and his government) and implementation systems. Yet precisely in regard to the non-international armed conflict the two spheres are in closest contact: both the citizen-government relations and those between adversaries are here indissolubly linked. It may perhaps be objected that in time of armed conflict many of the human rights and fundamental freedoms cease to apply or at any rate may be derogated from by the government. True; but in the international human rights conventions which have been concluded so far, this power of derogation is confined within fairly narrow bounds: it applies only (in the terms of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) “in time of war or other public emergency threatening the life of the nation” and even then a number of most fundamental rights are excepted. The catalogue of non-derogable rights differs slightly in the various conventions, but the differences are not significant. Taking once again the European Convention as an example, it comprises: the right to life (except in respect to deaths resulting from lawful acts of war) and the prohibitions of torture, slavery and servitude, and punishment for acts which constituted no crime at the time they were committed. Other rights, it should be added, may only be derogated from “to the extent strictly required by the exigencies of the situation.” It leaps to the eye that this system of human rights guaranteed even in time of emergency coincides to a large extent with, and in fact reinforces significantly, some of the basic principles of the law of armed conflict. Thus, the right to life 36

H. Meyrowitz, “Le droit de la guerre et les droits de l’homme”, in Revue du Droit Public et de la Science Politique en France et à l’Etranger (1972), p. 1059.

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with the exception attached to it amounts to a prohibition of killings not warranted by the law of armed conflict and, generally, arbitrary deprivations of life; and a prohibition of torture is found in both legal systems. Then, the non-retroactivity of penal legislation certainly constitutes a useful addition to the guarantees provided in Article 3 of the Geneva Conventions of 1949, which does not mention it. Conversely, Article 3 contains a prohibition of condemnation without fair trial, which is not among the non-derogable rights of Article 15 of the European Convention. But then again, this Convention does contain a number of very precise rights protecting suspects of criminal acts and these may only be derogated from, as we saw a moment ago, to the extent strictly required by the exigencies of the situation. Here too, therefore, one finds a mutual reinforcement of the two legal systems. It seems surely a reasonable expectation that the law of armed conflict applicable in non-international armed conflicts and human rights law will continue to influence each other beneficially and thus will contribute to the reaffirmation and development of that standard of civilization which provides at least a modicum of protection for the human being in time of armed conflict – all armed conflicts.

Chapter 7 The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 September - 18 October, 1974*

1

Introduction

In previous volumes of this Yearbook, the present author has put on record a series of events under the common denominator of “reaffirmation and development of international humanitarian law applicable in armed conflict.” The last event so recorded was the first session of the Diplomatic Conference on humanitarian law, held in Geneva at the beginning of 1974 and which commenced discussion of the two Draft Additional Protocols to the Geneva Conventions of 12 August 1949 prepared by the International Committee of the Red Cross (or ICRC). The Conference has meanwhile held its second session, from 3 February to 18 April 1975, and a third session is scheduled to take place from 21 April to 11 June 1976. In view of the considerable amount of work already done at the second session, and assuming that the constructive spirit which prevailed during this session will persist during the next, it may confidently be expected that the 1976 session will suffice, at least, to finish the first reading of the Draft Protocols. This will provide an excellent opportunity to enter into some of the more salient features of the Draft Protocols, in the light of the amendments accepted in the course of the Diplomatic Conference. In the meantime, attention may usefully be paid to another conference which, while taking its place in the series of conferences on “reaffirmation and development of international humanitarian law applicable in armed conflict”, is sufficiently important as well as distinct from the rest of the series to deserve separate treatment: the Conference of Government Experts on the Use of Certain Conventional Weapons, held at Lucerne (Switzerland) from 24 September to 18 October 1974.

* 1 2

Published earlier in 6 NYIL (1975) pp. 77-102. 2 NYIL (1971) p. 68; 3 NYIL (1972) p. 18; 5 NYIL (1974) p. 3. ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24 Sept.-18 Oct. 1974), Report, 1975.

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History

This Conference was convened by the ICRC at the request of the XXIInd International Conference of the Red Cross, held at Teheran in November 1973 (Res. XIV). The ICRC had shouldered this task without any great enthusiasm, because by that time it had become only too well aware of the political implications of the subject and its close connection with considerations of national security. Yet, the ICRC had itself as much as anyone else to blame (if that is the right word in this connection) for the situation in which it found itself: it had been among the first to draw attention to the need for an examination of certain new weapons developments in the light of existing legal criteria. True, its interest in the matter had stemmed not so much from any particular desire to become involved in questions of weapons technology and armaments, but rather from the need to protect civilian populations from the dangers of indiscriminate warfare. In that context, it had broached the questions of chemical, bacteriological and radiological warfare in 1955 and, in 1956, the use of incendiary weapons: more than a decade before the United Nations began to take an interest in the matter. In 1967, the ICRC sent a Memorandum to all Governments on the protection of civilian populations against the dangers of indiscriminate warfare. In a survey of existing law, annexed to the Memorandum, it raised the question whether “such new weapons as napalm and high velocity rockets” should not be included in the category of “weapons inflicting needless suffering.” Having received few reactions to this Memorandum, the ICRC in February 1969 convened a meeting 3 4 5

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Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, published by the ICRC in June 1955. Draft Rules, Part II (Rules of application), Section IV (Weapons contrary to the laws of humanity), Art. 10 (Unlawful means of causing harm). While in the 1955 version of the Draft Rules the ICRC, believing that governments would not be prepared to agree to a restriction on the use of incendiary bombs, expressed the view that the general rules in the Draft would at all events prohibit the indiscriminate use of incendiary weapons (Commentary, pp. 87, 88), the second version published in 1956 mentioned incendiary agents in one breath with chemical, bacteriological and radioactive agents (Art. 14). In its Commentary to the second version the ICRC explained that, in view of comments it had received from various experts, it had “thought it desirable to mention incendiary agents in the list of examples in Article 14 and thereby to include in that article those incendiary weapons which, by their nature or in certain circumstances, would constitute devices with uncontrollable effects” (2nd ed. (1958), p. 106). Reprinted as Annex XV to the Report on Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, published by the ICRC in May 1969 and submitted to the XXIst International Conference of the Red Cross (Istanbul, Sept. 1969). Ibid., p. 058.

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of experts to discuss the whole subject-matter of the “reaffirmation and development of the laws and customs applicable in armed conflicts.” In a preliminary document which it put before the meeting by way of a provisional agenda, the ICRC invited the experts’ opinion, inter alia, on the questions of “napalm”, “high speed barbed missiles” (or fléchettes) and “fragmentation bombs”. While the Report on this meeting is silent on the last two types of weapon, it points up a variety of opinions concerning the legality or illegality of the use of napalm and the desirability and feasibility of a prohibition on such use. Perhaps even more important was the advice given by a number of experts, to the effect that the role of the Red Cross in this domain was not to bring about the prohibition of specific weapons but constantly to remind all those concerned of the basic principles governing the admissibility of the use of such specific weapons. Notwithstanding this warning, the ICRC once again brought up the question of the use of certain weapons in the documentation it submitted to the first session of the Conference of Government Experts on humanitarian law, which it convened in May-June 1971. While taking the position that the prohibition of such weapons would fall principally within the ambit of the United Nations, and welcoming therefore the suggestion made by the Secretary-General to assign the study of the effects of napalm to a group of experts, the ICRC devoted separate attention to the use of incendiary weapons and, in the context of guerrilla warfare, it raised the question whether certain weapons such as “fragmentation bombs”, “certain ultra rapid ‘darts’” (or fléchettes), certain new types of rifle ammunition, “mines filled with glass splinters or rusted nails”, and in fact the whole range of weapons classified as “anti-personnel” should not be made the subject of critical examination. Significantly, however, in the document dealing with the “Rules relative to behaviour of combatants” the ICRC confined itself to suggesting the “reaffirmation and development” of the basic principle embodied in Article 23(e) of the Hague Regulations of 1899/1907 respecting the Laws and Customs of War on Land, prohibiting the employment of “arms, projectiles or material calculated to cause unnecessary suffering.”

8

9 10 11 12 13

Doc. D 1055b, p. 12. Meanwhile, the International Conference on Human Rights, held under UN auspices in Teheran in 1968, had adopted Res. XXIII entitled “Human Rights in Armed Conflicts”; in this resolution it was stated that “napalm bombing” was among the methods of warfare which “erode human rights and engender counter-brutality”. Report, cited supra note 6, p. 62. Documentation, Vol. I (Introduction), p. 20; second Report of the Secretary-General on Respect of Human Rights in Armed Conflicts, A/8052, paras. 125, 126. Documentation, Vol. III (Protection of the Civilian Populations against Dangers of Hostilities), p. 115. Documentation, Vol. VI (Rules Applicable in Guerrilla Warfare), p. 48. Documentation, Vol. IV, p. 6.

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At the first (1971) session of the Conference of Government Experts, where a variety of tendencies emerged with regard to the question of weapons, a particularly interesting suggestion had been that it should take up the study of all weapons which were not at the time the subject of discussion in other forums, such as the United Nations or the Conference of the Committee on Disarmament (the CCD). A paper along these lines tentatively suggested the prohibition of the following categories of weapon: “delayed action weapons, the dangerous and perfidious effects of which are likely to be indiscriminate and to cause suffering to the civilian population”, “napalm bombs and other incendiary weapons … for use in circumstances where they may affect the civilian population” and “bombs which for their effect depend upon fragmentation into great numbers of small calibred pieces or the release of great numbers of small calibred pellets.” In formulating these proposals the experts in question had not significantly deviated from the path indicated by the ICRC in its preliminary documentation; a path, incidentally, which had considerably widened since the ICRC had ventured its first tentative suggestions concerning incendiary weapons. It also is apparent that the proposals, although probably prompted by the experiences of the Vietnam war, were all expressly or implicitly concerned with the fate of the civilian population. While it might be surmised that this support from government experts for the suggestions it had itself made would induce the ICRC to elaborate its ideas into more precise propositions, the Basic Texts it submitted to the second session of the Conference of Government Experts (May-June 1972) were completely silent on the matter of prohibition or restriction of on humanitarian law the use of specific weapons, and so was the Commentary which accompanied the Basic Texts. In the Conference, a representative of the ICRC explained the reasons for this silence. First, it really was the task of the United Nations and the CCD to deal with the question of those conventional weapons which had aroused so much concern among public opinion. In this connection, the ICRC “welcomed the fact that the Secretary-General of the United Nations had been requested to prepare a special study on incendiary weapons and napalm.” If, however, no other body would take on the question at issue, the ICRC “would then be prepared to consider how it could contribute to the studies to be carried out.” Second, “the prohibition of specific weapons had always been the subject of legal instruments separate from the Geneva Conventions” and it was preferable that this would remain so, if only because there was a fundamental difference between the two 14 15 16

Report on the work of the Conference, para. 477. Ibid., p. 99; doc. CE/COM III/44, introduced by the experts of Egypt, Mexico, the Netherlands, Sweden and Switzerland. GA Res. 2852(XXVI) of 20 Dec. 1971, following the suggestion made by the SecretaryGeneral in his second report on “Human Rights in Armed Conflicts”, see supra note 10.

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types of rule: “the rules in the Conventions were of an absolute nature, whereas the prohibition of weapons was subject to reprisals or even to reciprocity.” The latter argument was particularly weak. It was by no means certain that the proposals put forward by the ICRC, e.g., concerning the protection of the civilian population against the effects of hostilities (traditionally part of the “law of The Hague”) would eventually assume the character of “rules of an absolute nature”. At one place in its Commentary (dealing with the proposed prohibition on attacks against objects of a civilian character) the ICRC itself stated in so many words that “the problem of reprisals remained open.” And in the part of the Draft Protocol devoted to the “Execution of the Conventions and of the present Protocol” it had included a draft article on the “Prohibition of reprisals and exceptional cases” which in its second section gave a detailed set of conditions reprisals would be required to meet in cases where they would not be prohibited under the law of armed conflict in force. It seems therefore obvious that the real reason for the non-inclusion of proposals on specific weapons among the propositions the ICRC had submitted to the government experts lay in the twofold consideration that the question had better be dealt with, if at all, in a separate instrument and perhaps even in another forum. In other words, the ICRC preferred the discussion of the Draft Protocols not to be complicated with – and hampered by – the additional burden of the weapons issue. Reactions to this posture of the ICRC were, of course, diverse. Some mainly Western experts supported it in its reticence and said that the matter really was one for the CCD, where it “could be dealt with most effectively.” Others regretted the timidity which the ICRC was now displaying and, objecting to the view that prohibitions on the use of specific weapons could be brought about only in disarmament forums (where negotiations, they felt, were based primarily on strategic considerations), claimed that the question of such prohibitions was entirely within the sphere of competence of the Conference convened by the ICRC and which “started out from humanitarian concerns.” These experts, with Dr. Hans Blix of Sweden as their undisputed leader, submitted a proposal which differed in one significant respect from the one made in 1971: this time, the proposed prohibition on incendiary weapons was no longer restricted to “use in circumstances

17 18 19 20 21 22

Report on the work of the Conference, second session, Vol. I, para. 3.14. Commentary, Part One, p. 97: commentary to Art. 47 of Draft Protocol I in its 1972 version. Art. 74 of Draft Protocol I in its 1972 version; see also Commentary, Part One, p. 152. Report, Vol. I, para. 3.21. Ibid., para. 0.32. Ibid., para. 3.20.

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where they may affect the civilian population.” This was an important modification, which for the experts of the Netherlands made it impossible to continue giving their support to the proposal; napalm still belonged to the armament of the Dutch air force, and the proposal in its new form might affect NATO tactics. Taking up the suggestion of the representative of the ICRC that this organization might in certain circumstances “be prepared to consider how it would contribute to the studies to be carried out” and admitting that further study of the questions involved might indeed be necessary, Dr. Blix invited the ICRC to convene, in the near future, a meeting of legal, military and medical experts to examine the problem. When this idea received support from many quarters and was submitted as a formal proposal in the course of the final plenary sessions of the Conference, the ICRC thereupon expressed its readiness to act accordingly. Convened in early 1973, the experts’ meeting had the benefit of the report of the Secretary-General on “Napalm and other incendiary weapons and all aspects of their possible use” which had appeared in the meantime. With respect to this category of weapons the experts therefore confined themselves to providing in their report a condensed version of the Secretary-General’s report. For the rest, they briefly discussed, in the light of the general principles of international law regarding the use of specific weapons, all existing principal categories of weapon: explosive and penetrating weapons, nuclear, biological and chemical weapons,

23 24 25 26

27 28

Report, Vol. II, p. 57; doc. CE/COM III/C33: proposal submitted by the experts of Egypt, Finland, Mexico, Norway, Sweden, Switzerland and Yugoslavia. The experts of the Netherlands submitted an amendment retaining the element of risk to the civilian population; id., doc. CE/COM III/C26. Report, Vol. I, para. 3.20. Report, Vol. II, p. 115; doc. CE/SPF/2, submitted by the experts of Argentina, Austria, Brazil, Denmark, Egypt, Finland, the Federal Republic of Germany, Iraq, Kuwait, Lebanon, Libya, Mexico, the Netherlands, Norway, Spain, Sweden, Switzerland, Syria and Yugoslavia. Report, Vol. I, paras. 5.8-5.11. A/8803, .9 Oct. 1972. The General Assembly in the course of its 27th session adopted two resolutions of relevance here. One (Res. 2932A (XXVII) of 29 Nov. 1972) welcomed the report of the Secretary-General on napalm and other incendiary weapons and deplored the use of these weapons in all armed conflicts. The other (Res. 3032 (XXVII) of 18 Dec. 1972) “noted with concern” the lack of agreement among government experts over the weapons issue and invited the Secretary-General “to prepare as soon as possible, a survey of existing rules of international law concerning the prohibition or restriction of use of specific weapons.” The Secretariat produced this survey on the basis of preparatory work by Professors Richard R. Baxter (U.S.A.) and Igor Blishchenko (U.S.S.R.) and submitted to the General Assembly as document A/9215, Vols. I and II, of 7 Nov. 1973.

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with special attention being paid to small-calibre projectiles, blast and fragmentation weapons, and time-delay weapons (mines and booby-traps). While this ICRC meeting of experts was a useful exercise, it laboured under the same defect as the earlier one on incendiary weapons convened by the Secretary-General had done, viz., insufficiently widespread expert participation. In both instances, there was a marked over-representation of experts from countries which had already expressed their support for the idea of far-reaching prohibitions on the use of conventional weapons; the Secretary-General’s meeting had in fact been boycotted by virtually the whole Western world (Sweden being the only country that had reluctantly agreed to send an expert), and also in the ICRC meeting participation from these countries was at a singularly modest level. As, moreover, the contribution from qualified military experts, especially from the major Powers, had been virtually nil, it was perhaps somewhat hasty that the report concluded that “the facts compiled … speak for themselves” and that there were “good reasons for intergovernmental discussions” concerning the weapons at issue “with a view to possible restrictions upon their operational use or even prohibition.” This language, indeed, had flown from the pen of Dr. Blix, and the ICRC had been very reluctant to accept its insertion in a report which, although technically remaining the responsibility of the experts who had participated in the meeting, could hardly fail to involve the ICRC as well. Cautiously, therefore, it warned in its introduction that the report was “purely documentary in character.” And in an evident attempt to curb the speed at which Dr. Blix and his consorts wanted to proceed, it suggested that “for its part, if the need were felt, [it] would be prepared to continue inquiries and, for example, convene a conference of government experts in order to contribute to the promotion of relevant international humanitarian law.” The offer which the ICRC had thus extended (and which, incidentally, was completely in line with the policy it had adopted since the second, 1972, session of the Conference of Government Experts on humanitarian law) was taken up by the XXIInd International Conference of the Red Cross, held at Teheran in November 1973. After some delicate negotiations between representatives of opposing viewpoints (notably, between Dr. Blix and Mr. George Aldrich, representative of the U.S. State Department with the present author as mediator) a resolution was passed which requested the ICRC to convene a conference of governmental experts to study the question of conventional weapons that might be deemed to cause unnecessary suffering or have indiscriminate effects. This was a moment of great importance in the sequence of events: a number of Governments 29 30 31 32

Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects, Report on the Work of Experts, published by the ICRC in 1973. Ibid., p. 71. Ibid., pp. 8, 9. Res. XIV.

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which had thus far been unwilling to get involved in any serious discussion of conventional weaponry, had now completely shifted their positions and stated themselves ready to take part in such discussions. After this decision of principle, it was merely a matter of working out a proper mandate for the experts. This was done at the first, 1974, session of the Diplomatic Conference on humanitarian law. As a result, once again, of a good deal of negotiating (in which, besides Mr. Aldrich and Dr. Blix, Mr. David Miller of Canada also played a major role) the ICRC was finally able to introduce a document containing an agreed programme of work and terms of reference for the Conference of Government Experts on conventional weapons, which the ICRC at the same time declared itself ready to convene. At this juncture, and prior to going on to a discussion of the Conference itself, it may be useful to recapitulate some of the most important aspects of the events recorded so far. These are, in fact, two; one concerns the scope of the prohibitions sought, and the other their character. The ICRC, it will be recalled, started from a preoccupation with the risks threatening the civilian population. This preoccupation, which stemmed as much from the events of the Second World War and before as from the introduction of the nuclear weapon, was subsequently only enhanced by the experience of modern guerrilla warfare, both in Vietnam and elsewhere. The ICRC was of course well aware that certain modern conventional weapons could be deemed to be gravely injurious to combatants as well, perhaps even to a degree that ought to be regarded as unnecessary; but it felt that this aspect of the matter really was one for Governments to deal with in the first place, and that the task of the Red Cross in this respect was confined to reminding the parties of the principles involved. This attitude found – and finds – support on the part of a number of Governments, who are ready to discuss the impact of the use of weapons on the civilian population but who are extremely reluctant to go one step further and put at issue the use of the weapons as such. In opposition to this tendency another one has developed, which by this time may be said to have gained the upper hand, and according to which the debate cannot be confined to the protection of the civilian population but should embrace the “protection of combatants” as well. As the suggestions and propositions emanating from the representatives of this viewpoint show, their concern – and, with that, the scope of the rules they seek to achieve – is wider in that it encompasses the anti-personnel effect of the weapons as well. From another 33

34

Virtually coincidentally with the Teheran Conference, the UN General Assembly dealt with the question of weapons and in Res. 3076 (XXVIII) of 6 Dec. 1973 took note of the invitation to the ICRC to convene a conference of government experts. Doc. CDDH/IV/4; Summary Records of the Ad Hoc Committee’s 7th meeting, para. 40 et seq.; Report of the Ad Hoc Committee, Doc. CDDH/47/Rev. l, paras. 5263.

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angle, their goal is not to ban certain weapons on account of the threat they present to national security (and thereby to influence the military balance) but to protect human beings from what they consider to be unnecessary evils of war. This aspect of the matter is closely connected with the other one, viz., the question of the character of the prohibitions sought. Here, it may be useful to revert to the difference of opinion concerning the forum where the question of conventional weapons should properly be dealt with: should this be one of the existing disarmament bodies, or the humanitarian law Conference? According to some, as will be recalled, negotiations in the disarmament fora tend to hinge on strategic considerations first and foremost, whereas the humanitarian law forum may be expected to start from a “humanitarian concern”. As to this, it should be emphasized that no matter to what extent the efforts to bring about rules of the type discussed here may be prompted by humanitarian concerns derived from the “inhumane”, “perfidious” or “cruel” character of certain weapons, a different set of arguments are bound to enter into the considerations of those taking part in the lawmaking process; arguments which have a bearing on the military utility of the weapons concerned, the impact any prohibition or restriction on use would exert on national or bloc armaments, the need and cost of substitution, et cetera. In short, the question at issue is, in the terms of the League of Nations Disarmament Conference (1932-34), one of “qualitative disarmament”. As the records of that Conference show, humanitarian concerns as much as strategic and similar considerations had guided its deliberations concerning the subject-matter of specific weapon prohibitions, and it seems incontestable that this cannot be otherwise in any meaningful debate on the matter, that is to say, a debate which is intended to achieve effective as opposed to paper results. There is no denying that similar considerations of military interest play an important role in other chapters of the law of armed conflicts as well; notably in the chapter dealing with the protection of the civilian population against the effects of hostilities, a subject which at present is being dealt with in the context of the reaffirmation and development of international humanitarian law without anyone taking offence at this and claiming that, as of rights, it should be treated as a disarmament issue. However, although conceding this similarity in principle, the fact remains that a far more complicated set of political, economic, strategic and tactical considerations is at play in the question of weapons than in any other chapter of the law of armed conflicts, and the weight that such considerations carry in the decision making process is accordingly greater. The above factors underlie the persisting uncertainty as to whether prohibitions or restrictions on the use of certain contemporary conventional weapons will ultimately be achieved in the setting of the Diplomatic Conference on humanitarian law or in a disarmament forum. They also are at the root of the concern of the ICRC, shared by quite a few Governments, lest the complete integration of the work on the weapons issue with that on the Draft Protocols might imperil the latter. Thus far, those who share this fear have succeeded in avoiding

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such a total integration, with the result that in the Diplomatic Conference the subject of weapons is still being treated on a different footing from that of the Draft Protocols. The Conference of Lucerne is itself one of the manifestations of this different treatment. 3

Procedure and Politics

The Conference was organized by the ICRC under rules of procedure which it had itself established, with a view to avoiding the Conference having to spend its time on drawing up its own rules. Yet, procedural questions could not fail to crop up at the very outset. The first such question concerned the election of officers. While the Conference had no difficulty in electing Dr. Jean Pictet, VicePresident of the ICRC, as its President, it proved impossible to satisfy the needs of the Conference with the mere five Vice-Presidents which the ICRC had foreseen in Rule 6; instead, eight Vice-Presidents were elected “with a view to ensuring representation of all geographic regions” – an unusual formula, which served to express the feeling of some that the representation was still not equitable. Even greater difficulties were encountered in selecting a rapporteur, or rapporteurs. As there was to be no summary record of the meetings, the report would be of the utmost importance. It was therefore only after some days of negotiating that the Conference finally saw fit to appoint the present author as its principal rapporteur, with Mr. H.J. Rytz (Switzerland) and Dr. J.W.Ardagh (New Zealand) as co-rapporteurs for military and medical aspects respectively. This team of rapporteurs took great pains to work out an objective, balanced report, of a debate in which more often than not diametrically opposite views were defended. While the result of their labours was accepted with gratitude, especially by the experts of Western countries (who, having taken part for the first time in this debate, saw their views represented on an equal footing with those of the declared protagonists of sweeping prohibitions), there was a somewhat less enthusiastic feeling among the latter experts, who felt that this balance of views was disadvantageous to their cause. It was interesting to see how this subsequently led to a complete shift in positions: while at the time of the Lucerne Conference it was the representatives of several Western countries who had the strongest initial objections to appointing the present author as (principal) rapporteur, at the time of the 1975 session of the Diplomatic Conference (when the modalities for a second session of the Experts Conference were being discussed) the disappointment experienced by Dr. Blix in particular led him to attempt to eliminate the whole idea of a “report of the Conference” and have it replaced with nothing but the summary

35 36

Report (1975), p. 97: Annex 2. Ibid., para. 6.

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records of plenary sessions (in which the most vociferous experts would occupy the greatest number of pages) and the reports of working groups. The question of participation in the Conference provided another procedural/political incident. According to Rule 2, participation would be open, inter alia, to the experts of “States invited to the first session of the Diplomatic Conference.” That session had, by a narrow margin, decided not to admit the Provisional Revolutionary Government of South Vietnam and the ICRC had subsequently, by means of an enquiry among the Governments made in the course of its preparations for the Lucerne Conference, ascertained that an even stronger majority of Governments was disinclined to accept the P.R.G. as a participant in that Conference. In view of Rule 2, which the ICRC had itself established, this enquiry was strictly speaking superfluous and politically not very adroit, as it betrayed a lack of confidence in the Rule itself. Inevitably, therefore, the question of the admission of the P.R.G. was brought up at the very outset of the debate, where “a number of experts expressed regret at the decision taken by the ICRC”, giving a variety of reasons why this was “both ill-founded in law … and irregular on account of the form which the consultation by the ICRC had taken.” Rule 2 was, however, respected to the extent that no attempt was made to have the Conference overthrow the decision – a procedure, incidentally, which would have been difficult to realize in view of Rule 8(2) which provided expressly that the Conference would not adopt any resolution or recommendation and would not vote. The same issue led to another incident, involving Mr. Nguyen Van Luu (North Vietnam) on the one side and the rapporteur on the other. In explaining his views on the question of admission of the P.R.G., Mr. Van Luu had considered it necessary to speak at great length on the perfidious nature of the “Saigon clique”, the “American imperialists” etc. However, Rule 8(3) provided (in accordance with established Red Cross practice) that the Conference would “abstain from any discussion of a controversial or political nature.” The rapporteur was therefore not prepared to reflect the abusive language of the North Vietnamese expert in the report. In the meeting at which the report was discussed, this stand was challenged by the expert in question, supported by a number of his political friends. As the President of the Conference had for the purposes of that particular discussion left the Chair to the rapporteur, and since – as noted above – the Rules of Procedure did not provide for any decisions being taken by the Conference, it was up to the rapporteur to conduct the debate on this delicate issue and, finally, to decide it; a most disagreeable position, from which he finally extricated himself by relying on the quoted Rule and on “established parliamentary usage”, arguments which led him to decide “to take note of the objections 37 38 39

See hereafter, text at note 97. 5 NYIL (1974), p. 27. Report, para. 3.

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and the request formulated” by the expert in question. Needless to say, the legality of this “rapporteur’s decision” was subsequently challenged by some experts, but in vain. One peculiar consequence of this incident was that the Conference, having been so explicitly confronted with its lack of power to take decisions, could not be asked to adopt the report. This being so, the report makes mention only of its having been “discussed chapter by chapter” and of the fact that the “remarks presented by experts in the course of that discussion have been duly taken into account.” A final remark under this heading: In accordance with the decision on admission of liberation movements taken at the first session of the Diplomatic Conference, Rule 2 provided for the participation of experts appointed by such movements. This was a matter of the utmost importance: had we not been reminded by the proponents of such participation that they were the people who really had first-hand knowledge, although mostly as victims, of the effects of modern conventional weaponry? In this respect, their participation proved to be a huge disappointment: few movements were represented at all, and the experts they sent for the most part kept completely silent. 4

Legal Aspects

As far as numbers are concerned, the Conference was attended by some 150 experts coming from 49 countries from all regions of the world. They were a mixed lot indeed: among them were officers of all branches of the armed forces, ballistics and technological experts, military and civilian surgeons and other medical men, lawyers and diplomats. The lawyers had their day in discussing the first item on the agenda: proposed legal criteria governing the use of weapons. This discussion served two purposes: to clarify as far as possible the criteria involved, and to help the other experts gain a better understanding of the factors determining the legality or illegality of the use of specific weapons falling within the scope of their expert knowledge. The debate on this first item, which profited from an excellent paper by Colonel Sir David Hughes-Morgan, of Great Britain, was inconclusive in that it did not result in any agreed formulations. It was all the more disappointing to those few experts who had set their hopes even higher, aiming at the identi40 41 42 43

Para. 285. Para. 283. 5 NYIL (1974) p.28. Many documents were introduced at the Conference. Their large number and unequal quality ultimately forced the Bureau to decide that none of them would be annexed to the report; instead, Annex 4 provides a list of the documents. Report, para. 15.

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fication of legal parameters so accurate that they could be applied almost automatically to any given weapon. For those who were somewhat more modest in their expectations, however, the debate contributed significantly to clarifying the various criteria discussed. These were mainly: unnecessary suffering, indiscriminateness, perfidy, and the dictates of the public conscience. 4.1

Unnecessary Suffering

As for the criterion of unnecessary suffering, questions discussed included the very concept of suffering (which was generally considered to comprise such factors as mortality rates, the painfulness or severity of wounds, and the incidence of permanent damage or disfigurement) and the factors to be taken into account in assessing what suffering should be considered as unnecessary. Leaving aside those few experts who were not prepared to accept the idea of “unnecessary” suffering (as this implies that other wartime suffering is considered “necessary”) and accepting that an equation is at issue here between the element of suffering and that of military necessity, there were those, on the one hand, who held that the element of military necessity in this equation consists solely of the capacity of a weapon to put an enemy hors de combat. Even then, however, the question would remain how much injury is required to disable an enemy soldier: if one is to believe certain older military manuals, the amount of energy required to put a Russian soldier out of action would be six times the energy required in the case of a French soldier. Other experts, on the other hand, held that military necessity as an element in the choice of weapons includes completely different factors as well, ranging from the destruction or neutralization of enemy material to the enhancement of the security of friendly forces. Another aspect brought up in this debate concerned the well-known question of whether the (solely authentic) French text of Article 23(e) of the Hague Regulations has been properly translated into English. In the official British translation of the French text of 1907, the words “armes … propres à causer des maux superflus” have been translated as “arms … calculated to cause unnecessary suffering.” This involves two questions: whether “propres à” is the same as “calculated to”, and whether “maux superflus” is correctly rendered by “unnecessary suffering”. The experts generally agreed that the translations were not the best ones imaginable; that “injury” has a more objective connotation than “suffering”, and that “calculated to” contains an element of design which might not be inherent in the French “propres à”. The British translations were, however, adopted shortly after the 1907 Hague Peace Conference, and they have come to be accepted as 44 45 46 47

Para. 16. Para. 23. Para. 19. Paras. 24-27.

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law as much as the French original. In this light, several experts rightly held that “it would be unthinkable for this Conference, by merely expressing its preference for another translation of the original French text, to remove” the impact of the British translations from the body of international law. 4.2

Indiscriminateness

The criterion of indiscriminateness, although not so far expressed in unequivocal terms in any treaty in force or other international legal instrument of equal standing, was recognized by the experts as a valid standard of the law of armed conflict. Yet, this did not imply an equal readiness to accept the existence of a rule prohibiting “indiscriminate weapons”. To many, especially among the Western experts, the latter question really was an academic one, as they did not accept the existence, within the category of conventional weapons, of types of weapon which are intrinsically indiscriminate. In their opinion, all conventional weapons can be used with or without discrimination, so that the method of use rather than a weapon’s properties would in general be the decisive element in determining whether in a concrete case the standard of discrimination has been respected or violated. These experts argued (evidently with the experience of recent armed conflicts in their minds) that it would be wrong to attempt to obtain the prohibition of certain weapons “merely on the ground that they had been used indiscriminately in the past and that the remedy must be to formulate a sensible restriction on such a method of use.” The task of formulating such “sensible restrictions”, it may be added, belongs properly to the domain of the Diplomatic Conference on humanitarian law and, indeed, has in the meantime been brought to a successful end in that forum. Against this line of argument, some other experts defended a view which had already been advocated in the report of the 1973 experts meeting, to the effect that not only weapons indiscriminate by their very nature but also weapons “whose normal or typical use would be one which had indiscriminate effects” would have to be considered indiscriminate weapons. This view has more force than may appear at first glance: past experience may in certain circumstances provide a sound basis for future expectations regarding the use of specific weapons, 48 49

50 51 52

Paras. 20-22. Nearest come resolutions adopted by the XXth International Conference of the Red Cross (Res. XXVIII) and the UN General Assembly (Res. 2444 (XXIII) and 2675 (XXV)) expressing the principle that “distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.” The only examples given by Dr. Blix, gas and bacteria, do not fall within the category of conventional weapons. Paras. 29-31. Para. 31.

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as much as with regard to other matters. It should be admitted, however, that the validity and persuasive force of such expectations will depend to a large extent on the actual conditions under which the experience was gained, and they will have great difficulty in standing up against a sufficiently credible statement of changed intentions on the part of (potential) users of the weapons in question. An example may illustrate this point: the fact that napalm bombs were often used indiscriminately in the Vietnam war is not of itself sufficient to convince all concerned, and especially the military among them, of the need to ban all possible uses of the weapon, even the most discriminate ones. Some experts tried to find a compromise solution between the two extreme positions described above, by introducing the element of accuracy into the definition. In their view, “those weapons ought to be regarded as indiscriminate which, having regard to their effects in time or space, cannot be employed with sufficient or with predictable accuracy against the chosen target.” This, again, sounds promising; but another speaker warned with some justification against a reliance on accuracy in this context: “accuracy” is an intrinsically relative concept, and while it may serve to compare results gained with different weapons or with the same weapon in different situations, it provides but a poor tool for determining a question as absolute as the indiscriminate character of a weapon as such. 4.3

Perfidy

Similar differences of opinion became apparent with respect to “treacherousness” or “perfidy” as a criterion for the admissibility of specific weapons. Some experts were convinced that this deserves a separate place on the list of existing legal criteria, whereas others felt that it does not present the characteristics of an independent standard, but rather constitutes an element in the determination whether a given weapon causes unnecessary suffering or is used without discrimination. 4.4 Dictates of the Public Conscience The “dictates of the public conscience”, mentioned in the famous Martens clause in the preamble to the Hague Convention of 1899/1907 respecting the Laws and Customs of War on Land, were referred to by many of the participants in this debate on legal criteria, although views differed as to their importance and effect. To some, the public conscience amounts to a distinct standard, so that a strong demand on the part of public opinion is sufficient to establish a new rule. In their view this had happened, e.g., with respect to the question of irreparable damage to 53 54 55

Id. Id. Paras. 33-34.

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the environment, where a “criterion of ecological damage” had emerged; another example they found in “the abhorrence evidently provoked by the use of certain weapons, such as napalm and other incendiary weapons.” The idea that the “dictates of the public conscience” would constitute a direct source of international law was, however, strongly – and rightly – contested by numerous other speakers. While they were far from inclined to disregard it and, indeed, admitted that it could at times constitute a strong driving force inducing those in power to take a course they would not otherwise have taken, these experts refused to regard it as anything but “a political … factor, which governments should take into account in examining and assessing the various questions involved in the deployment and use of modern conventional weapons.” Mention should finally be made of the completely different approach taken by Professor Igor Blishchenko of the U.S.S.R. In his view, one should start from present-day international law and international relations, and here one finds “such basic principles as the non-use of force and equal security for States” (the latter, it should be noted, a relative newcomer in the family of basic principles of peaceful coexistence). The principle of non-use of force “implied a prohibition against the use of any and all weapons of war”, except for “the case when a people would exercise its right of self-defence.” Disarmament was therefore the primordial goal, and in that context it would be necessary to take into account all weapons without exception, whether conventional or non-conventional. Always in that context (and on the condition that negotiations were conducted in the proper forum) it would of course be open to Governments to “conclude agreements proscribing the use of specific weapons”; a grudging admission which he qualified even further by adding “that such agreements, to be effective, ought to be general.” While few experts shared the Russian feeling that we were all on the wrong road and that we should start at the disarmament end instead (an approach which the United Nations has pursued with little success since its early days) there was widespread support for his contention that prohibitions or restrictions on the use of specific weapons can only be expected to be effective if they are generally accepted – a reflection which immediately leads to the conclusion that it would be wrong to expect too many results in this area of national security, where the most diverse interests are at stake. Be this as it may, one outcome of this entire debate on legal criteria was the realization that there was room for further clarification. It soon became apparent, however, that there existed little inclination to continue the search for clarity in the form of a lawyers’ exercise. To some, this would be an idle exercise in that it could not be expected to diminish the divergences of opinion that had emerged 56 57 58

Paras. 35-37. Para. 38. Para. 39.

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from the debate. The general feeling was, moreover, that the process really had to operate the other way round: further elucidation of existing criteria, or even the emergence of new ones, could be expected first of all as a result of discussions on the military and medical aspects of the use of specific weapons. 5 Technical Aspects A survey of the discussions at the Lucerne Conference concerning the various categories on the agenda could easily assume a highly technical character. One could discuss, for instance, the difference between “intensive-type” and “scattertype” incendiary agents and, in that connection, between incendiary bombs and firebombs (the latter being the well-known canisters filled with napalm, devices which according to the experts, and contrary to popular belief, can be delivered with great accuracy, viz., with a DEP or Deflection Error Probable of 10-20 metres and with a REP or Range Error Probable of 30-60 metres). Or attention could be focused on phenomena of “transonic flow”, which may occur when a projectile with a certain high speed penetrates into a medium such as the human body. Or, again, the difficulty of determining what is the “lethal zone” could be examined, e.g., of a fragmentation bomb: is this the zone inside which everybody gets killed, or outside which nobody gets killed, or in which 50 of those present get killed? The latter question kept even the specialists divided, and it therefore seems justified to leave it aside here, with all those many other primarily technical questions which had better be left to the specialists concerned (and, for that matter, to other journals). Here, we may confine ourselves to a brief exposé of the matters discussed. The agenda included the following items: incendiary weapons, small-calibre projectiles, blast and fragmentation weapons, delayed action and treacherous weapons, and future weapons. Each of these categories was examined both from a military and a medical point of view; the military part of the debate included such aspects as the military value and effects of the various weapons; their functional interrelationship with other weapons and weapon systems; possible alternatives, and the accuracy of the weapons at issue and the danger of their use affecting civilians and combatants alike. The medical experts focused on the medical effects of the various weapons, including the degree of suffering or injury they cause. These technical discussions among military and medical experts were followed by a debate in which the lawyers and diplomats could again join, viz., an assessment of the weapons discussed in the light of applicable criteria and of the practicability of prohibitions or restrictions on the use thereof.

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Para. 42. Paras. 11-12.

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Incendiary weapons (or “incendiary munitions”, as they were preferably referred to) received the closest attention of the experts. An informal working group was put together (the only one during the Conference) to discuss the key issues of the definition and classification of the munitions in question. This group achieved consensus on the following definition: “For the purposes of this Conference, an incendiary munition has been considered to be any munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame and/or heat produced by a chemical reaction of a substance delivered on the target.” The group also recognized that there exist certain munitions which may have secondary or incidental incendiary effects but which do not fall within the definition just quoted, for instance: illuminants, tracers, smoke, signalling systems and fuel-air explosives. Some difficulty arose however with respect to munitions, such as certain armour-piercing and anti-aircraft projectiles, which combine incendiary with other distinctive effects. Agreement on whether these projectiles fall within the category of incendiary munitions proved impossible to achieve; this, obviously, not on account of any intrinsic definitional problems but because for some of those taking part in the exercise the decision to include the projectiles in question among the category of incendiary munitions would necessarily entail acceptance of their prohibition, along with the rest of incendiary munitions. Interestingly, it was in particular the Swedish expert who for this reason refused to regard the projectiles as “incendiary munitions”; another proponent of the prohibition of incendiaries, the expert of Mexico, for the very same reason was all in favour of including the projectiles among incendiary munitions and, thus, banning them from use. This episode is clear evidence that considerations of national security will enter into the deliberations even of experts who, like the Swedes, have committed themselves so unreservedly to the cause of “qualitative disarmament”. The discussion on incendiary weapons provided a great deal of pertinent information, much of it in direct refutation of information published earlier, e.g. in the napalm report of the Secretary-General. The conflicting nature of the evidence supplied led to radically opposite conclusions as to the admissibility of use of such weapons. This division of opinion became apparent as much in the assessment of the questions of unnecessary suffering and indiscriminateness as in the views expressed regarding prohibition of incendiary weapons. To some experts, incendiary weapons do cause unnecessary suffering in that they cause exceptionally grave wounds, are of limited military value and can be substituted by other

61 62

Chapter III, paras. 43-117. Paras. 49-50.

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weapons. Other experts, who admitted that burn wounds are probably the worst possible type of wound, were not convinced that the use of incendiary weapons results in all cases in an exceptionally high incidence of casualties, let alone of gravely wounded. They moreover felt that the military value of these weapons was far from negligible, and they feared that substitution of these weapons by other ones might even result in an increased number of casualties and of severely wounded in particular. As for indiscriminateness, while some experts held that incendiary weapons are inherently indiscriminate, others were of the opinion that this depended entirely on the method of use of such weapons. In this respect, a method of use condemned virtually unanimously was the massive use of incendiary weapons against civilian population centres. For the rest, some experts felt that attention could more usefully be focused on the anti-personnel use of such weapons than on their anti-matériel role. The views regarding prohibition of incendiary weapons once again fell into two groups, the one advocating their outright prohibition and the other holding that insufficient grounds for such a sweeping conclusion had been shown. One interesting detail in this debate concerned the possibility of attacks on military objectives situated within population centres: while an expert from the first group pointed to the risk that incendiary weapons, when used in such attacks, might start fires spreading over a wide area outside the target, an expert from the other group pointed to the responsibility of the authorities of a country who should ensure that no vital military objectives be found in civilian population centres. 5.2

Small-Calibre Projectiles

The discussion on small-calibre projectiles – i.e. rifle ammunition with a calibre of some 5.5 mm or less, which travels with an initial velocity of over 1000 metres per second, as against the common 7.62 mm round with a muzzle velocity of some 800 metres per second – was, if possible, even more technically complicated. The difficulty here resided not so much in differences of opinion as to military utility 63 64 65 66 67 68 69 70 71 72

Para. 101. Para. 102. Para. 103. Para. 104. Para. 105. Paras. 109-111. Paras. 112-114. Para. 111. Para. 112. Chapter IV, paras. 118-154.

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or characteristics, but rather in uncertainty about the wound ballistics and medical effects of these, as indeed of other, projectiles. Available data stemmed from computer modelling, gelatine-block experiments, tests on anaesthetized animals and, last but not least, gunshot casualties. As was generally agreed, the data indicated that earlier publications had overstated the significance of velocity as a determinant of wound severity, and other physical parameters such as angle of yaw, angle of incidence, projectile geometry and projectile spin-rate were also likely to have a significant influence. The military and medical experts also agreed that much more study was necessary, particularly in the search for common ground between experimental and clinical data. Several of them suggested that research on a cooperative basis, involving experts from different countries, might be desirable. In the evaluation of small-calibre projectiles, great hesitancy became apparent where the question of unnecessary suffering was concerned. The high military value of these weapons was recognized in all quarters. As for the question of whether this element of military value was insufficient to compensate the suffering caused, most experts found it simply impossible to express a definite view. The overall conclusion ensuing from the debate was therefore that further study and research were required to arrive at more definite conclusions. 5.3 Blast and Fragmentation Weapons In the debate on blast and fragmentation weapons, the accent lay heavily on the latter category of weapon. Weapons discussed in this category ranged from artillery to the more recently developed types of pre- or controlled-fragmented weapons and fléchettes. An element of particular importance in the discussion on military aspects concerned the possibility of substitution by other weapons – a possibility which was estimated to be poor indeed for these weapons as a class. This element returned once again in the evaluation of these weapons, where no suggestion was made that blast and fragmentation weapons should be banned as a class. Some experts held, on the other hand, that certain specific types of such weapons (viz., anti-personnel cluster bombs and fléchette weapons) acted indiscriminately or caused unnecessary suffering and ought therefore to be prohibited. Other experts were not convinced that even these specific weapons did in effect cause unnecessary suffering or have indiscriminate effects. 73 74 75 76 77 78 79

Paras. 130-144. Para. 145. Paras. 146-154. Chapter V, paras. 155-218. Para. 182. Paras. 212-214. Para. 215.

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Delayed-action and Treacherous Weapons

While the category of delayed-action and treacherous weapons encompasses a wide range of weapons, the experts focused their attention, especially in the evaluation, primarily on mines and booby-traps. As for mines, while some experts felt that these are inherently indiscriminate and that at least certain types of antipersonnel mines ought to be prohibited, others were of the opinion that mines, as other weapons, can be used with or without discrimination. In this connection, several experts noted the possibilities for marking mine deposits and for the application of reliable self-destruct devices. Booby-traps ought in the eyes of some experts to be banned. Others thought that this was going too far, and that the question at issue really was the use of such devices rather than their inherent nature. There was, however, quite some sympathy for a suggestion of the President that booby-traps gravely endangering the civilian population might be banned. 5.5

Future Weapons

The discussion of future weapons, finally, ranged over subjects such as laser weapons, microwave and infrasound devices, light-flash devices, geophysical and environmental warfare and certain novel modes of electronic warfare. The upshot of this debate was recognition on the part of many experts that one should be constantly aware of the dangers in unrestrained weapon developments. This led these experts to advocate both domestic and international procedures for the timely review of new weapons and weapon developments; a task, indeed, which was recognized as long ago as 1868, at the time of the Declaration of St. Petersburg, and which will remain an urgent necessity probably for a long time to come. 80 81 82 83 84 85 86 87 88 89 90

Chapter VI, paras. 219-259. Paras. 248, 254. Para. 249. Para. 248. Paras. 248, 254. Paras. 250, 256. Para. 257. Chapter VII, paras. 260-281. Paras. 277, 279. Para. 281. The Declaration renouncing the use, in time of war, of explosive projectiles under 400 grammes weight concludes with a paragraph in which the Parties “reserve to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the

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This is not to say that weapon developments were categorically rejected by the experts. Indeed, the expert of India, Mr. L. Dayal, took the position that, if a nation was forced into war, its right to throw its ingenuity and technology into the balance could not seriously be questioned, and especially a State possessing only small armed forces might be expected to rely on technology-intensive weaponry whenever that course was open to it; a disquieting statement, especially in view of the nuclear explosion which India has since that time effected. It was also a very realistic statement, depicting accurately what will normally happen in the course of a war and, indeed, in the preparatory stage. It cannot mean, however – and this was rightly urged by Dr. Esmat Ezz, of Egypt, and some other experts – that States could claim on the basis of this argument of necessity a licence to disregard the limits set by international humanitarian law. 6

Evaluation and Perspective

An evaluation of the Lucerne Conference may conveniently start from an episode in the debate concluding the examination of small-calibre projectiles, when the expert of Sweden (Dr. Blix) expressed regret at the trend in the evidence presented to the Conference, much of which was, as indicated above, openly contradictory to information supplied earlier. He would have preferred, he said, “more attempts at constructive analysis.” To this, Colonel Sir David Hughes-Morgan, of Great Britain, retorted that “the debate had been highly instructive.” This bit of dialogue demonstrates clearly the two basic attitudes assumed by participants. There were those, especially among the group of experts led by Sweden, who had for all practical purposes formed their opinions before even coming to the Conference, on the basis of information available to them at that stage. They were firmly convinced that the prohibitions and restrictions they had in mind (and which they had embodied in a working paper submitted to the Diplomatic Conference in February 1974) were, so to speak, foregone conclusions. The task of the Lucerne Conference, as they saw it, would then be, either, simply to confirm these conclusions, or to discuss them in a spirit of “constructive analysis”, that is, without any attempt at fundamentally disrupting the picture of facts and figures underlying their opinions. In contrast, many of the Western experts were convinced that the information on which the “Swedish” propositions rested was both incomplete and, often, inaccurate. They felt, therefore, that the first task of the Lucerne Conference was to set this state of affairs right, and to this end they went out of their way to

91 92 93

armament of troops, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity.” Report, para. 278. Para. 147. Doc. CDDH/DT/2.

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produce a stream of additional information, much of which was precisely of a nature to disrupt the pre-existing picture. From their point of view, this was not only “instructive” but it even constituted a most constructive contribution to the work of the Conference and, indeed, to the cause of “qualitative disarmament”, as in this area only sound facts can provide the solid basis required for any serious attempt to achieve effective results. Incontestably, however, their “constructive/disruptive” contributions led to strong feelings of disappointment and even dismay among the Swedes cum suis, as became apparent from a number of reactions. Thus, in the context of the evaluation of small-calibre projectiles Mr. Obradovic of Yugoslavia suggested that “certain experts” had perhaps been biased by the strong conviction of their governments that the new small-calibre rifles were so militarily valuable that their prohibition ought to be prevented at all costs. He himself added immediately that he was not prepared to accept this as a true explanation, and I think that this was indeed not the case: it was simply that there had been too little information at the basis of the conclusion that the new projectiles ought to be banned, and too much uncertainty prevailed with regard to the properties and effects of the projectiles in question for any firm conclusions to be drawn as to their admissibility or inadmissibility. Therefore, and despite the fact that certain “vested interests” might perhaps militate against a ban on their use, it was certainly not the posture of the Western experts that such a ban was out of the question; they merely contested that sufficient ground existed for such a ban, adding immediately that they were themselves continuing their research in the field and that they were open to any convincing evidence of the objectionable character attributed to the new rifle bullets. A similar reaction to that of Mr. Obradovic came from the expert of Zaïre, Mr. Yakembe Yoko, who on two different occasions gave vent to his feelings of dismay at the attitude of the Western experts. At times, he said, he had had the impression that he was at an armaments conference rather than at a conference on humanitarian law. To the extent that this amounts to an accusation of bad faith, it is certainly unfounded. Good faith prevailed on all sides; but this could not prevent – nor could it be expected to prevent – differences of opinion, even among experts. In sum, the Conference of Lucerne was a necessary and indeed inevitable step in a process of often “agonizing reappraisal” of a number of developments in the field of conventional weapon technology and use. Some may have regarded it as a step backwards, but wrongly so; it constituted a tremendous step forward, involving, as it did, qualified experts from all over the world in an attempt to get at the facts concerning these developments and to give them their right place in 94 95

Report, para. 147. Para. 218. The other occasion was in the course of the debate on the follow-up, which is not recorded in the Report.

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the whole range of considerations governing the decisions Governments have to take in these matters. Far from leading to any immediate results, the Conference generated more questions than answers. Settled opinions were overthrown and doubts took their place. The work, in other words, is not by a long way finished. This, indeed, was evident to most participants in the Conference, and despite the protests of those who, like Mr. Yoko, believed that the documentation assembled thus far provided sufficient information for Governments to base their decisions on, the Conference listened with approval to the President’s announcement that the ICRC would be prepared to convene another conference of government experts. This second session of the Conference has meanwhile been convened. After some further deliberations and negotiations, both in the UN General Assembly and at the second session of the Diplomatic Conference, the ICRC on 11 June 1975 sent out a letter confirming this fact to all Governments and other interested parties. The session will be held at Lugano (Switzerland) from 28 January - 26 February 1976 and the questions at issue will be basically the same as at the first session, with one all-important difference: while the same categories of weapon will be on the agenda, the Conference will “focus on such weapons as have been – or may become – the subject of proposed bans or restrictions of use” and will “study the possibility, contents and form of such proposed bans or restrictions.” This means that the accent at Lugano will be on an examination of the legal and political merits of concrete propositions. A first such proposition has meanwhile been tabled: on 16 May 1975, the delegations of Sweden and nineteen other States attending the Diplomatic Conference addressed a letter to the ICRC in which they formulated a concrete proposal concerning the prohibition of incendiary weapons. Other proposals, both from the “Swedish” and the Western group, will certainly follow. While the outcome of this exercise remains unpredictable, the mere fact that it has gotten under way deserves to be welcomed with much satisfaction. After all, it was long overdue that Governments, confronted with the tremendous developments in conventional weapons technology, would attempt to make a concerted effort to “conciliate the necessities of war with the laws of humanity.”

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Para. 282. Res. 3255A (XXXIX) of 9 Dec. 1974 took note of the work of the Lucerne Conference, appealed to all Governments to cooperate in the clarification of the issues, and invited the Diplomatic Conference to continue its consideration of the subject; Res. 3255B (XXXIX) of the same date, a Syrian initiative, “condemns the use of napalm and other incendiary weapons in armed conflicts in circumstances where it may affect human beings or may cause damage to the environment and/or natural resources.” The latter is an evident (and, it may be suggested, futile) attempt to prejudge a good number of controversial issues. Report, para. 282.

Chapter 8 The Conference of Government Experts on the Use of Certain Conventional Weapons, Second Session, Lugano, 28 January - 26 February, 1976*

As recorded in the previous volume of this Yearbook, most participants to the Conference of Government Experts on the Use of Certain Conventional Weapons held at Lucerne from 24 September to 18 October 1974 had come to realize that a second conference was necessary to pursue the issues which had proved so controversial. Since a mere repetition of the Lucerne exercise would serve no useful purpose, it was decided that such a second conference would concentrate on the weapons which might have been, or become, the subject of proposals to ban or restrict their use, and it would have to study the possibility, contents and form of such proposed bans or restrictions. Duly convened by the ICRC, a conference with these terms of reference met from 28 January to 26 February 1976 at Lugano, Switzerland. So as to avoid having to start again with the drawing up of Rules of Procedure and similar organizational matters, it was designated as the “second session” of the Conference of Government Experts on the Use of Certain Conventional Weapons. Apart from its modified terms of reference, the most important change was that the debate would be conducted not only in plenary meetings but also in a general working group, the main difference being that summary records would be kept – and published – of the plenary meetings but not of the general working group. The idea behind this set-up was to provide experts with an opportunity to speak for the record (in plenary) as well as rather more freely in a true dialogue among experts (in the general working group). The idea was good but it failed to materialize; in actual fact, experts in the working group either repeated or simply continued what they had been saying in plenary, and the debate throughout the * 1 2

Published earlier in 7 NYIL (1976) pp. 197-206. 6 NYIL (1975) p. 77, at p. 101; Rule 1(2) of the Rules of Procedure of the second session, Report (1976) p. 227. Rules 5 and 11 of the Rules of Procedure, Report pp. 229, 230. Another difference was that different officers were elected for the general working group from those for the plenary meetings. As for the function of Rapporteur, the Conference, after some quite disagreeable bickering, took the rather unfortunate decision to designate the present author as Rapporteur both of the plenary and of the general working group. It may be put on record here that the report of the working group was in fact written by Mr. Julian Perry Robinson, who was present at the Conference as an observer for the World Health Organization.

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Conference had the character more of a series of separate and often conflicting statements than of a dialogue in the true sense of the term. Participation at the second session was somewhat more limited than at the first session: some 40 countries were represented, as well as some organizations, among which the World Health Organization and the Stockholm International Peace Research Institute (SIPRI) should be mentioned in view of the especially active role played by their representatives. The Third World was poorly represented: throughout the Conference, not more than about ten members of the socalled “Group of 77” (which by now has expanded to a group of more than 100 States) were actually present. It should immediately be added that some of these few took a most active part in the proceedings of the Conference, contributing not only political points of view but also expert information on experiments carried out in their countries. The relevance of political points of view derived from the proposal-oriented character of this second session: notwithstanding the highly technical nature of many of the subjects under discussion, political and security considerations could not fail to carry even more weight in the deliberations of government experts than had already been the case at Lucerne. After all, it makes quite a difference whether the use of, say, incendiary weapons is being discussed from the point of view of expert knowledge about the characteristics and effects of these weapons, or with a view to assessing the “possibility, contents and form” of formal proposals seeking to ban or restrict their use. Even more than at Lucerne, the discussions at Lugano were therefore characterized, and at times dominated, by the presence of diplomats in the various delegations. A striking example was the opening session of a special working sub-group of technical experts on small-calibre projectiles: contrary to what might be expected with such a highly technical subject, the main participants in this event were a number of ambassadors, who became involved in a heated discussion of the agenda which the technical experts would be permitted to discuss. The agenda of the Lugano Conference closely resembled that of its predecessor. Once again, legal criteria had not been included as a separate item, this in conformity with the insight gained at Lucerne that the “further elucidation of existing criteria, or even the emergence of new ones, could be expected first of all as a result of discussions on the military and medical aspects of the use of specific weapons.” This was not to say that lawyers had no place in the Conference; first, 3

4 5

One particularly irritating consequence of this set-up will be immediately apparent to anyone who attempts to orient himself in the Report of the Lugano Conference: he will find himself entangled in a complicated, cumbersome document which makes it very difficult to find what one is looking for. Thus an Indonesian expert reported on tests with projectiles of 7.62 and 5.56 mm fired into blocks of soap from distances varying from 50 to 1000 m; Report p. 16. 6 NYIL (1975) at p. 93.

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they were, of course, involved in the drafting exercises undertaken either individually or conjointly by a number of delegations; second, a special working subgroup on general and legal questions was set up in which they could have their fling at a number of interesting questions. The agenda contained, besides the usual “general debate” and “other business”, a list of the various categories of weapon that had also been on the Lucerne agenda: incendiary weapons; delayed-action and treacherous weapons; small-calibre projectiles; blast and fragmentation weapons, and other categories of weapon and new weapons. It would serve little purpose to record here the technical aspects of the discussions on these items of the agenda, if only because these for the most part constituted a repetition of what had already been said at Lucerne. Rather, it may be useful to point out that apart from the group of Sweden cum suis other delegations and groups of delegations also submitted written proposals to the Conference. To the extent that these proposals emanated from Western delegations, they often suggested far less sweeping prohibitions or restrictions than those contained in the comprehensive working paper tabled in 1974 by the Swedish group. This difference of approach came to light very clearly where incendiary weapons were concerned. While the Swedish group wanted to achieve a generic ban on the use of these weapons, allowing an exception only (though not unimportantly) for “munitions which combine incendiary effects with penetration or fragmentation effects and which are specifically designed for use against aircraft, armoured vehicles and similar targets”, the experts of a number of mainly Western countries submitted a working paper the purport of which was merely to protect cities and suchlike “areas containing a concentration of civilians” from attacks by means of incendiary weapons; even so, their proposal specifically reserved the right to attack military objectives within such areas with incendiary weapons, “provided that the attack [would be] otherwise lawful and that all feasible precautions [would be] taken to limit the incendiary effects to the specific military objectives and to avoid incidental loss of civilian life or injury to civilians.” One needs no great knowledge of the subject to realize that the two positions outlined above were too far apart for a compromise solution to be within easy reach. An initiative in that direction was taken by the experts of the Netherlands, the purport being to afford somewhat better protection to the civilian population than 6 7 8 9

Report of the Working Sub-Group on General and Legal Questions, Report, p. 140 et seq. Op. cit. note 5, at p. 99 (note 93). Letter to the ICRC dated 15 May 1975; Report, p. 206. Mexico never accepted the exemption. Doc. COLU/207 submitted by the experts of Australia, Belgium, Canada, Denmark, the Federal Republic of Germany, France, Ireland, Italy, Japan, the Philippines and the USA; Report, p. 181.

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the absolute minimum provided in the “Western” working paper and, besides, to protect combatants from the use of napalm except in given situations. Although arousing considerable interest in most quarters, the initiative failed to achieve its immediate purpose. It should be added, however, that a modified version of the part of the proposal regarding the protection of the civilian population received an even warmer welcome and, indeed, some formal support at the third session of the Diplomatic Conference on humanitarian law, held at Geneva from 21 April to 11 June 1976. On the other hand, the Dutch delegation did not at that time press its ideas concerning the other aspect of the matter, viz., battlefield use of napalm, clearly as it realized that compromise in that area was out of the question for the time being. This episode may show that the road towards an agreed solution for the specific problem of prohibition or restriction of the use of incendiary weapons is a long one. It cannot be travelled fast either, at least if the goal is a widely accepted, effective result. This is not a peculiarity of incendiary weapons: it goes for the whole range of conventional weapons. While this may at times be difficult to accept, especially for those who have become accustomed to achieving quick successes in the UN General Assembly, it is fortunate that even these more impatient individuals have thus far refrained from pressing the matter to the vote - which they might have won, while losing their overall cause. Some modest but unmistakable progress could be registered at Lugano also with respect to mines and booby-traps. A fairly comprehensive working paper submitted by the experts of the United Kingdom and the Netherlands, joined later on by those of France, contained specific proposals on the use of these devices and notably on the recording of minefields, the use of remotely-deliv10 11

Doc. COLU/205; Report, p. 176 et seq. Doc. CDDH/IV/206; Australia and Denmark became co-sponsors of the proposal. Besides definitions of “incendiary munition” and “flame munition” (as a species of the former), the proposal contained three rules: (1) prohibition to attack cities et cetera with incendiary munitions, (2) permission to attack specific military objectives within such areas with incendiary munitions, provided that “all feasible precautions are taken to limit the incendiary effects to the specific military objectives and to avoid incidental loss of civilian life or injury to civilians”, and (3) prohibition to attack specific military objectives within such areas from the air with “napalm or other flame munitions unless that objective is located within an area in which combat between ground forces is taking place or is imminent.” The last-mentioned rule was an interesting attempt to “do something” about napalm. For Sweden, it was indeed “something”, but not nearly enough; this delegation subsequently submitted a working paper of its own (CDDH/IV/208) which was confined to flame munitions: these should be prohibited for use in all circumstances (that is, also on the battlefield) and they were defined in terms of their effects (“primarily designed to cause burn injury to persons or to set fire to objects through the action of flame produced by a chemical reaction of a substance dispersed over the target”), whereas the Netherlands proposal defined flame munitions by their composition (“based on a gelled hydrocarbon”).

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ered mines, the use of mines and booby-traps in populated areas, and the use of certain specified booby-traps and similar devices. The main thrust of these proposals was to achieve a better protection of the civilian population from the effects of these weapons, although the proposed prohibition on the use of boobytraps or similar devices which are “designed to kill or injure by a non-explosive means which stabs, impales, crushes, strangles, infects or poisons the victim” or are “attached to or associated with” recognized protective signs, the wounded or dead, medical equipment or supplies, or children’s toys (the last part of the proposal) clearly sought to extend protection to combatants as well. The proposals drew much favourable comment, besides the inevitable criticism; at all events, the sponsors felt sufficiently encouraged by the debate to continue their efforts and to introduce at the third session of the Diplomatic Conference a set of proposals closely similar to those submitted at Lugano, but taking account of the comments and criticisms made there. As for small-calibre projectiles, the debate at Lugano was virtually a repetition of that at Lucerne. Tests had meanwhile been carried out in several countries, but these had failed to yield any conclusive evidence one way or the other. One particular difficulty seems to be that the behaviour of bullets, both while traversing the air and upon entering the body, depends on so many variables, which in their turn are so difficult to measure, that the setting up of reliable standard tests encounters virtually insurmountable obstacles. This, at any rate, was the upshot of the discussions in the working sub-group of technical experts, which had been brought together precisely to examine the possibility of arriving at agreed standard tests. A further, interesting development in the debate on small-calibre projectiles occurred only subsequently, at the third session of the Diplomatic Conference, when the representative of Sweden introduced a working paper containing a modified version of the earlier proposal on that matter. The earlier version sought to prohibit the use of small-calibre projectiles which would, because of their design or velocity, produce certain effects within the human body: breaking, deformation, “significant” tumbling, damaging shock waves or secondary projectiles. In the new version, the reference to “small-calibre” had been dropped altogether, as well as that to certain causes (design, velocity) as productive of certain named 12 13

14 15 16 17

COLU/203. The proposals were also discussed in a working sub-group of military experts on mines and booby-traps, with Mr. R.J. Akkerman (Netherlands) as rapporteur; Report, p. 146 et seq. CDDH/IV/213; Denmark joined as co-sponsor. Report, p. 154 et seq.; here too, a member of the Dutch delegation, Mr. E.B. van Erp Taalman Kip, acted as rapporteur. CDDH/IV/214. Report, p. 199: CDDH/IV/201.

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effects; instead, it was now proposed simply to prohibit the use of bullets which deform or break easily, or tumble rapidly, in the human body, or have a velocity exceeding 1500 m/sec. The interesting feature of this new form of words is that (apart from the velocity criterion at the end) it closely resembles the language of the Hague Declaration of 1899 prohibiting “the use of bullets which expand or flatten easily in the human body.” That Declaration goes on to define as an example of bullets carrying these features “bullets with a hard envelope which does not entirely cover the core or is pierced with incisions”: the ill-famed dum-dum bullets after which the Declaration is usually named. The example should not however make one lose sight of the general rule which precedes it. In point of fact, it had been emphasized at Lugano that this norm “ought to be respected both in the letter and the spirit.” It was therefore a clever move of the Swedish delegation, while abandoning their original, rather rigid fixation on “small calibre” and “high velocity”, to bring their proposal into line with this “letter and spirit” of the Declaration of 1899: the chances of its being discussed seriously were thereby considerably enhanced. More than that, the new language was probably a closer approximation to their genuine convictions and intentions than could be found in any of the earlier formulations. Obviously, the question remains when bullets, whether of 7.62 or 5.56 mm or an even smaller calibre, can be said to “deform or break easily” or “tumble rapidly” in the human body. The Swedish representative made it clear that what he had in mind were bullets that as a rule (“easily”) expand or flatten in the same manner as the dum-dum bullets as a rule (“easily”) expand or flatten in the human body. For the rest, the Swedish working paper sought to resolve this problem by prescribing simple standardized tests. Not surprisingly in the light of previous discussions, however, several participants in the debate were not prepared to accept this solution straightaway. Much further research and discussion will therefore be necessary before an agreed text can be expected; but it seems not unreasonable to believe that such a result may be obtained in the end. Under the heading of “blast and fragmentation weapons”, two issues attracted special attention: fuel-air explosives, and weapons producing non-detectable fragments. Two proposals dealt with fuel-air explosives, one seeking to ban “the anti-personnel use of weapons which for their effects rely exclusively on shock waves in the air”, and the other prohibiting “to detonate for military purposes gas-air and dust-air mixtures which release gas pressure.” Specific criticism of the first proposal was that it would affect certain types of hand-grenade and land mine besides fuel-air explosives, and of the second that it was not restricted to the 18 19 20 21

Bullets with such extreme velocities do not at present exist, nor are they anticipated; but the Swedes fear that they would cause excessive injury. Report, p. 14: para. 36 of the report on the plenary meetings. COLU/202, submitted by Sweden. COLU/209, a Swiss proposal.

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anti-personnel use of such explosives. More generally, it is still very much a controversial question whether the use of fuel-air explosives against enemy personnel would result in “unnecessary suffering” in the sense of an inadmissibly high death toll: while the Swedish experts maintained that this would be the case, predicting percentages of up to a hundred, their American colleagues equally vigorously denied the correctness of this claim. The remaining vast majority of the expert participants could not but reserve their position, for want of adequate information one way or the other. As for non-detectable fragments, it is an undisputed fact that the possibility exists, either through the choice of substances consisting of light atoms which do not differ appreciably from the human body as far as the absorption of X-rays is concerned, or through the choice of the size of fragments, to ensure that fragments will escape detection by the usual medical methods. A Mexican-Swiss proposal which sought to preclude the use of weapons dispersing such fragments was widely welcomed as a valuable suggestion. As the Australian experts pointed out, however, the prohibition of weapons which only occasionally, and then by chance rather than intent, give rise to wounds in which the fragments cannot subsequently be detected should be avoided; such a situation might arise, for instance, from the necessary inclusion in some munitions of plastic components which can produce a few low-density fragments which, however, because of their number and characteristics are unlikely to be capable of causing significant injury. After some discussion on this and other aspects, a wording was finally arrived at which took account of this criticism and sought to prohibit the use of “any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays”; with this wording the proposal drew very wide (though not unanimous) support. Indeed, it may safely be stated that of all the suggestions, working papers and proposals submitted to the Lugano Conference this one on non-detectable fragments came closest to gaining general acceptance. A few words, finally, about the working sub-group on general and legal questions. This sub-group, set up at the instigation of the Swiss experts, placed on its agenda a number of interesting questions, such as: whether there should be one or more instruments for those conventional weapons that would be subjected to prohibitions or restrictions on use; whether such future prohibitions or restrictions should be considered as a codification of customary law or as new treaty law; what would be the effects of involvement in an armed conflict by non-parties to the instrument or instruments in question; whether the prohibitions or restrictions on use should be cast in terms of absolute obligations or in terms of first use 22 23 24 25

COLU/212. Report, p. 18: para. 50 of the report on the plenary meetings. Ibid., and COLU/216. Report, pp. 122-123: paras. 77-82 of the report of the general working group.

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only; whether there should be a right of reprisal; what rules should govern the entry into force; how the review of new weapons developments and acquisitions should be arranged, both on the national and international levels. The debate on these subjects, although somewhat premature in that it was not based on concrete draft texts in an advanced stage of preparation, provided the participants with an excellent opportunity to ventilate their, often widely divergent, views. The width of these differences may be demonstrated with the aid of one example, viz., the discussions concerning “absolute obligation” versus “no first use” and, in that connection, the right of reprisal. One group of experts, heavily underscoring the direct involvement of national security in these matters of restraints on the use of specified conventional weapons, held that it would be of the utmost importance for future instruments to pay due heed to the principle of reciprocity and, therefore, to be worded in terms of a “no first use” obligation only. Another group preferred to see an absolute obligation, this on the argument that a mere prohibition of first use ceases to have effect as soon as one party to the conflict starts using the weapon in question. This latter group of experts added that the principle of reciprocity could also be reflected in the form of a right to take reprisals, which, they felt, should suffice as a means of enforcing the instrument – the difference with “no first use” being, of course, that the principles of subsidiarity and proportionality must be respected in the case of reprisals which, moreover, must be discontinued as soon as the violation by the other party ceases. This addition may seem somewhat surprising, as the recognition of a right to take reprisals, though less disastrous than unmitigated reciprocity, still considerably weakens an otherwise absolute obligation to refrain from using a certain weapon. From another angle, the very recognition of the right of reprisal in the context of weapons prohibitions can only be considered as evidence of a welcome degree of realism on the part of this group of participants in the debate. In the ensuing discussion of the right of reprisal, views once again differed widely. At one extreme, one expert felt that the very concept was repugnant to the nature of humanitarian law; while this may appear a most idealistic point of view, it should be taken into account that the expert who expressed it had in the previous discussion taken the side of “reciprocity” and “no first use”. Other experts of that group confined themselves to denying the relevance of a discussion of reprisals, since “reciprocity” would govern a future instrument anyway. Among the experts of the opposite group, a lively discussion developed on such delicate

26 27

Report, p. 133. On the difference between pure reciprocity and the right of reprisal, see this author’s Belligerent Reprisals (1971) pp. 339-344, 347.

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questions as the permissibility of reprisals not in kind or near in kind and the conceivability of an effective rule on proportionality. The above may suffice to show that many problems will have to be solved on the legal side as well, before the text of one or more instruments prohibiting or restricting the use of specified conventional weapons may be considered to have been completed. Even then, such a text will have a bearing on existing weapons only, restraints on the use of future weapons being possible only in the form of a general formula (such as the prohibition to use weapons “of a nature to cause superfluous injury or unnecessary suffering”). This leaves, therefore, the problem of national and international review of future developments, a problem that was discussed at Lugano both in plenary, in the general working group and in the working sub-group on general and legal questions. The debate on this important subject may be summarized as follows: While the importance of review on the national level was widely recognized, many experts also emphasized the need for an international review mechanism. However, the question of the modalities of such a mechanism (new intergovernmental organization, regular conferences, a monitoring bureau, et cetera) still elicited the most varied comments. A step forward was that the expert of Austria submitted to the working sub-group an “informal proposal” on the question, thereby providing something tangible to go upon. Despite this, as with the other matters mentioned in this brief survey of the Lugano Conference, the conclusion must be that much work remains to be done before any definitive results can be expected.

28 29

30

For this whole discussion, see: Report, p. 140 et seq.: report of the working sub-group on general and legal questions, in particular paras. 8-9. Art. 33(2) of Draft Protocol I (relating to international armed conflicts) and Art. 20(2) of Draft Protocol II (relating to non-international armed conflicts), as adopted by Committee III of the Diplomatic Conference. Report, p. 146: annex to the report of the working sub-group on general and legal questions.

Chapter 9 The Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974 - 1977*

1

Introduction

On 10 June 1977, in Geneva, representatives of 97 States, the Holy See and three national liberation movements signed the Final Act of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, thus bringing to a formal close the Conference which in the course of four consecutive annual sessions had deliberated, negotiated, and more or less satisfactorily resolved a large number of often delicate issues of humanitarian law. As related in earlier Volumes of this Yearbook, the ground had been carefully prepared when in 1973 the Swiss Government decided to convene the Conference. In a long series of studies, consultations and conferences the International Committee of the Red Cross (ICRC) had elaborated draft texts for two Protocols, one for international and the other for non-international armed conflicts. The final version of these Draft Protocols was the basis for the work of the Conference. It was also recounted – but may be briefly recalled here – how the Diplomatic Conference ran into grave political difficulties when in its first session it was confronted with demands for the admission “as a government” of the then Provisional Revolutionary Government of South Vietnam (refused by a narrow margin) and with demands for the admission as especially qualified observers, of specified national liberation movements (granted by consensus, but after a prolonged and bitter fight). With these questions settled, the Conference adjourned its plenary meetings and the four Committees of the Whole commenced their work, which was allotted as follows: Committee I: the general provisions opening the two Draft *

1

2 3

Sections I and II of the present paper were published earlier in 8 NYIL (1977) pp. 107-135, and the remaining sections in 9 NYIL (1978) pp. 107-171. The “reunification” of the two sections has led to some additional adjustments, in particular in the numbering and text of the footnotes. Summary record of the 59th plenary meeting: CDDH/SR. 59, 10 June 1977; subsequently, the representatives of 4 more States affixed their signatures to the Final Act. 2 NYIL (1971) pp. 68-90; 3 NYIL (1972) pp. 18-61; 5 NYIL (1974 pp. 3-26. 5 NYIL (1974) pp.26-34.

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Protocols as well as those on execution, and the final provisions; Committee II: all matters relating to the sick, wounded and shipwrecked, and civil defence; Committee III: the rules relating to the conduct of warfare, combatant and prisoner-of-war status, and the protection of the civilian population. The fourth or Ad Hoc Committee was allotted a subject-matter which had not found a place in the ICRC Draft Protocols, viz., possible limitations on the use of specified conventional weapons. The Committees continued their work during the second and third sessions and completed it in the first part of the fourth session. The plenary Conference thereupon resumed its meetings and on 8 June 1977, after a final fortnight of voting and explanations of vote, adopted by consensus the definitive text of two Protocols “Additional to the Geneva Conventions of 1949”, one “relating to the protection of the victims of international armed conflicts” (Protocol I) and the other “relating to the protection of the victims of non-international armed conflicts” (Protocol II). While the above official titles of the two Protocols may suggest that these instruments are solely “additional to the Geneva Conventions of l949”, they actually cover wider ground. Protocol I in particular, although contributing significantly to the “reaffirmation and development” of each of the four l949 Geneva Conventions, makes an even greater contribution in reformulating and adapting to present circumstances the long neglected “law of The Hague” or law of warfare. Codified at the Hague Peace Conferences of 1899 and 1907, the re-codification of this body of law was long overdue, and it is a great point gained that the Diplomatic Conference succeeded in adopting new rules in place of the old ones, which were contained for the most part in the Hague Regulations on Land Warfare of 1899/1907. Weighing the relative merits of the various substantive parts of the Protocols remains a matter of individual appreciation. Some may feel particularly satisfied with the improvements brought about in the protection of medical services (a typical subject-matter of the “law of Geneva”), others with the strengthening of the ties between international human rights law and the humanitarian law of armed conflict, apparent from a number of articles in the Protocols. Yet, for the present writer, as for many others who closely followed the work of the Conference, its main significance lies in the elaboration and final adoption of a 4

5

6

For a report on the work of the Ad Hoc Committee up to the 3rd session of the Diplomatic Conference, as well as of the Lucerne and Lugano Conferences of government experts held under ICRC auspices in 1974 and 1976, respectively, see the author’s articles in 6 NYIL (1975) pp. 77-102 and 7 NYIL (1976) pp. 197-206. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts; text in 17 IRRC (1977) pp. 3-87. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Victims of Non-international Armed Conflicts, or Protocol II; ibid., pp. 89101. With respect to this term, see this author’s The Law of Warfare (1973) pp. 24-27.

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series of provisions falling within the domain of the law of warfare proper: methods and means of warfare, combatant and prisoner-of-war status, and, most particularly, the protection of the civilian population against the effects of warfare. At least in partial corroboration of this assessment, the following statement by the ICRC may be quoted here: “There is no doubt whatsoever that the greatest triumph of the Conference was the adoption of that part of Protocol I relating to the protection of civilians against the effects of war.” The titles of the Protocols are somewhat misleading in another respect as well: they seem to suggest a far greater similarity between the two instruments than they actually possess. Protocol I contains 102 articles with two annexes, Protocol II a mere 28 articles; Protocol I is divided into Parts, Sections and Chapters, while Protocol II is not; Protocol I not only enshrines a number of basic principles but elaborates these into detailed, precise rules, whereas Protocol II is virtually confined to a statement of principles. These are not differences of form alone; on the contrary, they are but the outward signs of the completely different conceptions which a great majority of the States participating in the Conference had of the two Protocols. The differences may be summed up in a few words: while international armed conflicts both traditionally and intrinsically are regarded as a legitimate concern of the international community and, hence, of international humanitarian law, the internal armed conflicts contemplated in Protocol II are seen as a matter first and foremost for the concern of the State in whose territory a conflict occurs. This may seem a quite reasonable point of departure; after all, there can be little doubt that while inter-State relations are the natural domain of international law, so, equally, are the internal affairs of a State the natural concern of that State. There is, however, a growing awareness that even the archetypal “internal affair” of the State, viz., the treatment of its own subjects, under certain conditions may become a legitimate concern of the international community. Evidence of this may be seen in the current attempts to engage international bodies in scrutinizing reported cases of gross violations, or consistent patterns of violation, of human rights in given States, as well as in the growing number of international instruments spelling out, in greater or lesser detail, the rights of man against the State. The inroad which all of this makes on the sovereignty of the State should not be overrated: few cases of alleged “gross violations” or “consistent patterns of violation” are brought to the attention of the international bodies concerned, and even when this occurs their powers to deal with such situations are so limited as to be seriously lacking in effectiveness. Although States will eagerly embrace the lofty principles laid down in such human rights instruments, few are prepared to take the all-important further step of vesting the instruments with true legal enforceability, whether before their own domestic courts or before an international judicial body. 7

ICRC Bulletin, No. 18-19, July-August 1977, p. 2.

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Chapter 9 1.1 The Making of Protocol II

At the Diplomatic Conference too, this tension between State sovereignty and international concern was very much apparent and indeed pervaded the discussions on Protocol II. A wide variety of positions could be discerned here, with what might be termed the Norwegian position at one extreme and the Canadian position at the other. From the very outset, the delegates of Norway, with Mr. Hans-Wilhelm Longva as their able spokesman, took the stand that an internal armed conflict, as a conflict between belligerent parties, in principle is no different than an international one and therefore, rare exceptions apart, ought to be governed by the same rules of international humanitarian law as apply in the latter case. The Canadians, with Mr. David Miller as their Head of Delegation, equally unhesitatingly opted for the opposite view, pleading with eloquence and tenacity the cause of a simple Protocol II that would not attempt to put the two sides on an equal footing and, generally, would in no way infringe the sovereignty of the State. Other delegations held intermediate positions, with those leaning towards the Norwegian position being found mainly among the Western countries, and those favouring the Canadian position among the Third World countries (which, evidently, were far more acutely aware of the actualities and potentialities of civil strife within their boundaries than were their Western counterparts). It may be recalled that the Geneva Conventions of 1949 already contain a common Article 3 applicable in situations of armed conflict occurring within the territory of a contracting State (without further definition) and laying down a few basic principles to be respected by both sides. To “develop and supplement” this Article (as Protocol II purports to do) further principles could be added to the ones enumerated, or the existing principles could be supplemented with more detailed, precise rules. In the course of the deliberations in Committees I-III, a combination of mutually reinforcing factors caused the latter tendency to prevail in many instances. For one thing, in this phase a simple majority sufficed for the adoption of articles; in practice, this often took the form of the articles being adopted by consensus whenever the minority realized that it would lose the vote anyway. For another, only a limited number of Third World countries took an active part in the work of the Committees, as against a much fuller representation on the part of the Western countries. As a result, and despite the repeated 8

These principles may be summed up as follows: humane treatment of “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”; prohibition, with respect to these persons, of violence to life and person, taking of hostages, outrages upon personal dignity, and the passing of sentences or 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”; and the duty to collect and care for the wounded and the sick.

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warnings of the Canadian and other delegates, when the three Committees had finished their business and the articles they had adopted for Protocol II had been put together, the text that emerged constituted a far from simple affair; indeed, the text of many articles was identical, or at least closely similar, to that adopted for Protocol I. This situation, although perhaps gratifying to holders of the Norwegian point of view, appeared less satisfactory when it was realized that a two-thirds majority would be required for the adoption of Articles by the plenary Conference and that many Third World countries which had left their seats empty in the Committee rooms, could be expected to be represented at the plenary meetings. Protocol II, in short, was in grave danger of outright rejection. At this crucial stage of the Conference the Head of Delegation of Pakistan, Justice Hussain, took an initiative which drastically changed the picture; in cooperation with other, like-minded representatives he drew up a simplified version of Protocol II which left out most of the detailed rules and even some of the principles that had so much excited the displeasure of the governments concerned. He invited the Conference to adopt this text instead of the one that had emerged from the Committees. Procedurally, the resulting situation was awkward; the articles as adopted in Committee continued to represent the official text before the Conference, and, technically speaking, the Pakistan version amounted to nothing but a series of amendments to these Articles. The Presidential ruling that the Conference would consider the original draft of Protocol II “article by article, in conjunction with the simplified draft”, while entirely in keeping with this procedural position, nevertheless betrayed the widely recognized belief that the Committee text stood little chance of surviving and the Conference had better concentrate on the Pakistan alternative. There followed a curious procedure: the plenary “deleted by consensus” numerous articles contained in the official text and other ones were equally simply replaced by consensus by the Pakistan versions. Only in rare instances could a sufficient, i.e., two-thirds majority be found to retain provisions of the official text that had not been included in the Pakistan draft. There can be little doubt that Justice Hussain’s action saved Protocol II from ignominious defeat in the Conference. Yet, it remains to be seen how much was actually gained by the ultimate adoption by consensus of the Protocol in such a drastically simplified version. It is, first of all, still very much an open question how many States, especially among those of the Third World, will eventually see fit to ratify it. In this respect, the declarations made by a number of the representatives of these countries on the occasion of the adoption of the Protocol were far from promising; they had, so they said, not wished to oppose the consensus but would have preferred to abstain in a vote, and they felt that the Protocol as 9 10 11

The text may be found in Conf. document CDDH/402. The simplified version is contained in CDDH/427. CDDH/SR.49, 2 June 1977, p. 10.

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adopted still made undue inroads on the sovereignty of the State. This prompted the Turkish delegate to comment, in a written explanation of vote handed in afterwards, that “the consensus reached was impaired by the statements made by numerous delegations, to the extent that it might be construed as representing a ‘consensus through abstention’.” 1.2

Sovereignty vs. International Concern as Reflected in Protocol II

On the substantive side as well, Protocol II cuts a far from impressive figure; indeed, the overall impression it leaves is one of being paradoxically lop-sided. On the one hand, Article 1, defining its “material field of application”, does so in terms which seem to suggest that it is designed especially (or even exclusively) for full-fledged civil wars, such as the Spanish Civil War or the Nigeria/Biafra war. On the other hand, the remaining articles of the Protocol place so light a burden on the authorities in power, and take such great care to keep “authorities” and “rebels” on an unequal footing, as to render the resultant legal regime singularly inappropriate to a situation of civil war and, indeed, even far from sufficient for many lesser forms of internal armed conflict. An elaboration of this point may throw some further light on the character of Protocol II as envisaged by many of the delegates at the Diplomatic Conference. According to the terms of Article 1, Protocol II is designed to apply to armed conflicts taking place in the territory of a contracting Party “between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” For one thing, the requirement of participation of the official armed forces on one side in the conflict excludes a situation of even heavy fighting between opposing factions but without involving the armed forces of the State (a situation that persisted in the Lebanon for a long time). Then, the requirement of qualified territorial control on the part of the insurgent forces excludes all those situations where the insurgents, having no such control of territory, confine their activities to guerrilla type operations (hit-and-run actions, nightly raids into villages which in daytime are left to the inhabitants) which can equally amount to heavy fighting. Again, and as if all this were not enough, when Article 1 was brought up for discussion at the plenary meeting, a number of delegations, mostly though not exclusively from Latin-American countries, emphasized that in their view it was a matter solely for the State affected by a conflict to determine whether the conditions set out in Article 1 were fulfilled. Soothingly, Mr. Miller (Canada) remarked that the text of Article 1 “was based on a factual situation”; and Mr. Obradovic, the Yugoslav delegate who had chaired the working group of Committee I which had drafted the text of the Article, reminded 12

CDDH/SR.56, 8 June 1977, passim; the Turkish comment is in the Annex at p. 19.

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the meeting “that Article 1 represented a very fragile consensus reached only after lengthy consideration” and that, in the circumstances, “it would be extremely inadvisable to seek to interpret its provisions.” This could not however prevent the Colombian delegate from proposing an oral amendment along the above lines, which he only withdrew once it had become clear that it would not receive sufficient support. Even then, both he and other delegates reiterated their view that, as the delegate of Saudi Arabia had it, “… any definition of the terms of the article was solely the concern of the State on whose territory the armed conflict was taking place. Decision by any other country would constitute interference in the domestic affairs of the State concerned and an infringement of that State’s sovereignty.” This essentially negative approach to the idea of “international concern” with internal armed conflicts received even more direct expression in the explanations of vote made by certain delegations after the adoption of Article 1 (by a majority of 58 to 5 votes with 29 abstentions). To quote only the delegate of India, as one of the most outspoken opponents of Protocol II: he saw no need for it as “… all provisions of Protocol II are in one form or the other embodied in the national laws of my country. My delegation believes that the provisions of Protocol II will only militate against the sovereignty of States and will interfere in their domestic affairs. The internal law and order situations are the sole concern of sovereign States and these problems are to be dealt with according to the domestic laws of the country.” It is small consolation that, as Article 1 expressly states, Protocol II “which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949” does not modify the “existing conditions of application” of that Article. As explained earlier, these conditions of application (amounting to nothing but the existence of an “armed conflict”) by their very vagueness permit a much more flexible interpretation than do the terms of Article 1. In this connection it is gratifying to note that Jean Pictet, Vice-President of the ICRC, unequivocally stated in the plenary Conference that the ICRC intends to stick firmly to the text of common Article 3 as the basis for its initiatives in offering its services to the Parties to an armed conflict falling under that Article. Further evidence of the strong emphasis on State sovereignty and the corresponding rejection of the notion of international concern may be seen, for one thing, in the express prohibition to invoke the Protocol “for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State” (Art. 3(1)); and, for another, in the absence of any reference (except for the one contained in Art. 1(1)) to the insurgents as a party to the conflict or of rules for the treat13 14

CDDH/SR.49, 2 June 1977, p. 11 et seq. Ibid., Annex, p. 6.

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ment of insurgents in any manner distinct from other persons. In line with this, the Conference finally deleted a provision which would have instructed a court sentencing a person for no other crime than that of having taken part in hostilities, to “take into consideration, to the greatest possible extent, the fact that the accused respected the provisions of the present Protocol.” This provision would in no way have affected the power of the State to punish such persons for the fact of their participation, i.e., for an act of rebellion or some such crime against the security of the State, nor could it have been construed as even the beginning of an introduction of prisoner-of-war status into the regime of international humanitarian law for non-international armed conflicts. In the same vein, Article 3(2) goes out of its way to forestall any attempt to invoke the Protocol “as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.” It seems difficult to conceive a more categorical refutation of the idea that an internal armed conflict might be a matter for international concern. After all this, it can hardly surprise that Protocol II contains nothing even remotely resembling the system of outside supervision provided for in the Geneva Conventions of 1949 for international armed conflicts (and somewhat improved in Protocol I). The original ICRC draft for Protocol II did indeed include a provision permitting both parties to the conflict to “call upon a body offering all guarantees of impartiality and efficacy, such as the International Committee of the Red Cross, to co-operate in the observance of the provisions of the present Protocol.” It added only as a closing sentence that such a body might also of its own accord “offer its services to the parties to the conflict” (draft Art. 39). This proposal seemed to place both parties to the conflict on an equal footing, at least as far as their relations with the ICRC were concerned, and accordingly it met with strong opposition in Committee I; its first (and most important) paragraph was rejected outright, and a vote was necessary to retain for the second paragraph a text which did no more than repeat, in terms identical to those contained in Article 3 common to the Geneva Conventions of 1949, that “the ICRC may offer its services to the parties to the conflict”. In the end, the Conference in plenary meeting deleted by consensus even this meagre remainder, relying precisely on the argument that it was identical to common Article 3 and was therefore redundant. After the vote, the representative of Iraq explained his real reasons (probably shared by several of his colleagues) for joining in the consensus; his country, 15

16

Committee I had adopted this provision by consensus as para. 5 of Art. 10 at its 63rd meeting; CDDH/I/SR.63, 4 June 1976, para. 74. At the plenary meeting, a separate vote was taken on this paragraph; there were 12 votes in favour, 26 against and 49 abstentions, so that the paragraph was deleted: CDDH/SR.50, 3 June 1977, pp. 9-12. CDDH/I/SR.63, 4 June 1976, para. 38; the vote was 34 in favour, 17 against, with 2 abstentions.

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he said, “while prepared to co-operate with the ICRC in its humanitarian work, could not accept any interference in its internal affairs of the kind implied by the offers of help mentioned” in the quoted text: such “politization of internal conflicts was highly undesirable.” One feels tempted to ask what is the more undesirable: the alleged “politization” of an internal armed conflict resulting from an offer of services by the ICRC, or the “politization” of the humanitarian initiatives of the ICRC by certain governments interpreting these as interference in their internal affairs. Be this as it may, enough has been said to demonstrate the immense difference, both in outward appearance and intrinsic characteristics, between Protocols I and II. One is a truly international instrument laying down rules of international humanitarian law governing international armed conflicts (including, it should be recalled, wars of national liberation as defined in Article 1(4) of this Protocol); the other is a document which, although moulded in the form of an international instrument complete with a ratification procedure and all its trappings, bears a far closer resemblance to a non-binding declaration of principles for non-international armed conflicts. A last quotation from the records of the final plenary meetings may bear out this analysis; in the words of the delegate of Sudan, “Protocol II entailed no international obligations, but represented a commitment by a State to its citizens for humanitarian purposes, without infringing its sovereignty.” From here on, most attention will go to Protocol I, with Protocol II being mentioned occasionally. Only selected topics will be dealt with, viz., combatants and civilians (section II), protection of the civilian population (section III), principles applicable between combatants (section IV) and general provisions (section V).

17 18

19

CDDH/SR.53, 4 June 1977, pp. 13-14. As the outcome of a long and often acrimonious debate, Committee I towards the end of the 1st session of the Conference adopted by 70 votes to 21, with 13 abstentions, a text for Art. 1(2) providing that the situations defined in Art. 2 common to the Geneva Conventions of 1949 “include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” See 5 NYIL (1974) pp. 30-33, criticizing the decision and expressing the hope that “a reconsideration of the text of Article 1 as adopted by Committee I would still be possible.” (p. 33). Nothing of the kind happened; in the final session of the Conference, the plenary meeting adopted the text by 87 votes to one (Israel), with 11 abstentions mostly from Western countries (who in the meantime had “learned to live” with the idea); CDDH/SR.36, 24 May 1977, pp. 9-10. CDDH/SR.49, 2 June 1977, p. 18.

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Combatants and Civilians

In order to properly discharge its functions and fulfil the expectations which had been aroused when it was convened, the Diplomatic Conference was bound to resolve two issues of fundamental importance to the whole of the law of warfare: the distinction between civilians and combatants, and the degree of protection to be afforded the civilian population. This section is devoted to the first issue. Crucial to the matter of distinction between civilians and combatants is, of course, the question whether such a distinction ought to be made at all. No matter the obvious difficulty of maintaining such a distinction in practice, this most fundamental question is usually answered in the affirmative. Nor did the delegates at the Diplomatic Conference at any time cast doubt on the continued validity of the customary principle of distinction, which indeed constitutes a basic tenet of the existing law of warfare. The Article in Protocol I which for the first time gives authoritative expression to the principle (Art. 48 – “Basic rule”, being the opening Article of Part IV – “Civilian Population”) was adopted by Committee III in 1974 and by the plenary Conference in 1977, both times by consensus. It merits quotation in full: In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

In the original ICRC draft for this Article, a duty for the Parties to the conflict to “confine their operations to the destruction or weakening of the military resources of the adversary” had preceded the rule on distinction. This phrase, derived from the famous statement of principle in the preamble to the St. Petersburg Declaration of 1868 “that the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”, was deleted by Committee III on the two-pronged argument that “language of this character was out of place in a convention relating to the pro20 21

CDDH/III/SR.10, 21 March 1974, para. 15; CDDH/SR.41, 26 May 1977, at pp. 2728. Declaration renouncing the use in war of “any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances.” For text, see: Schindler & Toman, The Laws of Armed Conflicts (1973), pp. 95-97. As the representative of the ICRC stated in Committee III, the quoted phrase “reaffirmed” the preambular paragraph of the St. Petersburg Declaration and the subsequent part of the proposed text “developed the same idea, since the concept of military objective had appeared only in the first quarter of the present century.” See CDDH/III/SR.2, 12 March 1974, para. 7.

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tection of the civilian population rather than the law of war in the strict sense and that ‘military resources’ might provide too wide a basis for attacks in wartime.” The former argument, and the one that interests us here, apparently distinguishes two concepts: one, the “law of war in the strict sense”, which governs the conduct of military operations, and the other, humanitarian law proper, which affords protection to certain categories of persons and objects against the dangers of war. While this may be a useful distinction for some purposes (e.g., to differentiate between the rules of military engagement and those relating to the treatment of prisoners of war) it becomes largely fictitious and, at all events, highly artificial when the question at issue is the protection of the civilian population; here, the rule prescribing that in war the military effort should be confined to “weakening the military forces of the enemy” really amounts to the same thing as the obligation to distinguish between civilians and combatants and between civilian objects and military objectives. Significantly, the closing phrase of Article 48 as adopted by the Conference “accordingly” requires belligerents to “direct their operations only against military objectives” – a requirement which differs from the St. Petersburg principle mainly in that it substitutes the modern and technically somewhat better defined term “military objectives” for the older phrase “military forces of the enemy”. 2.1

Humanitarian Considerations vs. Military Requirements

The above deletion of a clause which, it was thought, would introduce an element of “law of war” into a text which could and should remain purely humanitarian in character, is illustrative of a tendency which some delegations demonstrated throughout the Conference. From one point of view this was, of course, a most praiseworthy posture to take in a Conference the declared goal of which was the “reaffirmation and development” of humanitarian law. On the other hand, had it prevailed more often than it actually did, the outcome would have been a set of precepts wholly unrealistic from a military point of view. Fortunately, this did not materialize – although, to be sure, the military at the Conference felt at times that they were being saddled with more restrictions than they cared for. In the case of Article 48 in particular, the changes brought to the originally proposed text were, in the author’s view, more apparent than real, and did not significantly affect its substance. In this connection, it is worth noting that although the French delegation had “found the provisions of article [48] of Protocol I acceptable” at the time of the debate in Committee III, later on, when the plenary meeting had adopted the Article, this delegation completely reversed its position. In an explanation of vote, it made known its view that “Article [48] … is the first of a series of articles 22 23

CDDH/50: Report of Committee III, first session; para. 17. CDDH/III/SR.4, 13 March 1974, para. 2.

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which, after the manner of those in Part III [of Protocol I] relating to methods and means of combat, goes outside the specific context of humanitarian law for regulating the laws of war.” The statement went on to explain that “[although] this article was drafted with a humanitarian purpose in view, it has direct implications as regards a State’s organization and conduct of defence against an invader.” This led the French delegation to conclude that, had there been a vote, it would have abstained. Nor was this an isolated instance: the French steadfastly took this position whenever, during the concluding plenary phase of the Conference, an article was brought up for adoption which in their eyes “went beyond the strict confines of humanitarian law and in fact regulated the law of war.” It follows from what has been stated above that the present writer sympathises with the French in their evaluation of the true significance of the articles in question as provisions which, in setting definite limits to the freedom of action of States and armies in the organization and conduct of their military activities, fall within the province of the law of warfare rather than of humanitarian law taken in the narrow sense of the “law of Geneva”. Equally obviously, however, he does not share the conclusion implicit in their consistent abstentions that the articles ought not to have been adopted at all by a Conference whose purpose was confined to the “reaffirmation and development of international humanitarian law applicable in armed conflicts.” Unlike the French delegation, this writer’s considered opinion is that humanitarian law covers a wider field than the law of Geneva alone, and does in fact also encompass precisely those rules which, by proscribing the use of certain means and methods of warfare, seek to protect combatants from unnecessary suffering and (as in the case of Article 48 et seq.) the civilian population from the hazards of war. While, as noted above, the principle of distinction between civilians and combatants: is now firmly established in Protocol I, a different story has to be told about Protocol II. True, Committee III in 1974 adopted a text for the relevant Article of Protocol II which was identical to that contained in Article 48 of Protocol I. In plenary in 1977, however, this text when put to the vote failed to muster the required two-thirds majority. Instead, the Conference adopted Article 7 of the simplified Pakistan text, which in paragraph 1 provides the following “simplified” (and greatly watered down) version of the principle: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” Although this clause evidently does not spell out the principle of distinction in so many words, it seems permissible to read into it an implicit recognition of the validity of this principle for internal 24 25

26

CDDH/SR.41, 26 May 1977, Annex p. 7. CDDH/SR.39, 25 May 1977, p. 10: explanation of vote relating to Art. 35, being the opening Article (“Basic Rules”) of Part III (“Methods and Means of Warfare; Combatant and Prisoner-of-war Status”). CDDH/50, Report of Committee III, 1st session; paras. 52-54.

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armed conflicts as well. Thus, the moderately positive conclusion seems warranted that, in the end, the Conference did not wholly go back on the declaration made as long ago as 1965 by the XXth International Conference of the Red Cross (Res. XXVIII) and solemnly reaffirmed in 1968 by the UN General Assembly (Res. 2444) that “all Governments and other authorities responsible for action in armed conflicts” should conform at least to the principle that “distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible”, a declaration which had expressly been designed to apply to international and non-international armed conflicts alike. 2.2 Where Lies the Dividing Line between Combatants and Civilians? Obviously, it is one thing to reaffirm the principle of distinction between civilians and combatants, and another to determine where the dividing-line lies between these two categories of persons. This latter question, which is of such a crucial nature, had proved to be a vexing one as long ago as 1874, the year of the Brussels Conference, and neither that Conference nor the Hague Peace Conference a quarter of a century later had seen their way to a satisfactory solution. True, Articles 1 and 2 of the Regulations on Land Warfare, which the Peace Conference adopted as an annex to the Hague Convention regarding the Laws and Customs of War on Land, spell out with apparent precision who will qualify as combatants; Article 1: the armies, as well as those militia and volunteer corps fulfilling all four of the following conditions: (1) being commanded by a person responsible for his subordinates; (2) having a fixed distinctive emblem recognizable at a distance; (3) carrying arms openly; and (4) conducting their operations in accordance with the laws and customs of war; Article 2: the levée en masse of the inhabitants of a non-occupied territory who “on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1”, on the condition, that is, that “they respect the laws and customs of war” – to which the Second Hague Peace Conference of 1907 added yet another requirement, viz., that “they carry arms openly”. This, indeed, was the extent of the agreement reached at the Brussels and Hague Conferences: more or less regular armies would qualify as 27

28

CDDH/SR.52, 6 June 1977, pp. 7-16. In the course of the discussion in plenary, the representative of the United States, George Aldrich, gave the following curious explanation why his delegation would vote against the Article: it “implied that rebels were allowed to choose their objectives” (ibid., p. 12). For the text of the above Resolutions, see Schindler & Toman, op. cit. note 21, Nos. 22 (p. 187) and 24 (p. 191). For a discussion of the significance of these Resolutions for internal armed conflicts, see the author’s “Applicability of Customary International Law in Non-international Armed Conflicts”, in A. Cassese (ed.). Current Problems of International Law (1975) pp. 267-285.

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combatants and also, as a concession on the part of the major Powers, the levée en masse in non-occupied territory. The Regulations remained utterly silent however on a phenomenon far more common than that rara avis: armed resistance in occupied territory; on this point, neither agreement nor even the beginning of a compromise had been forthcoming. At the root of this difference of opinion lay the vast discrepancy in political weight and military power among the European States, with the more powerful among them (Prussia, Russia) visualizing themselves more readily in the position of an occupying Power, and the weaker ones (Belgium, the Netherlands, Switzerland) in that of the occupied. Understandably, these two groups differed widely in their appreciation of armed resistance on the part of the population in such a situation. For the potential occupiers, the perpetrators of acts of resistance would be mere franc-tireurs, outlaws at the mercy of the occupying authorities. For the potential victims of occupation, these persons would be heroes fighting for the most noble of causes and, hence, entitled to be treated as combatants. These two opposing views remained irreconcilable at the time; hence the silence of the Regulations. Hence, too, the famous Martens clause in the preamble to the aforementioned Hague Convention, in which the contracting States openly acknowledged that it had proved impossible “to agree forthwith on provisions embracing all the circumstances which occur in practice.” However, they went on to explain, it was not their intention “that the cases not provided for should, for want of a written provision, be left to the arbitrary judgment of the military commanders.” On the contrary, in such cases “populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.” For a long time matters stood at that, with the insufficiency of the Martens clause as a protective device for occupied populations being amply demonstrated in both the First and Second World Wars, the latter in particular. It was, indeed, the traumatic experiences of the Second World War which induced the States participating in the Diplomatic Conference of Geneva, 1949, to accept that members of “organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied”, would be entitled to prisoner-of-war status (as the status with which the Geneva Conventions were concerned) on the same footing as members of militias and volunteer corps. This implied that resistance fighters, in order to qualify, would be obliged to fulfil the four conditions set out in Article 1 of the Hague Regulations

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Schindler & Toman, op. cit. note 21, Nos. 6-7, at p. 64. The English translation of the 1899 text differs slightly from the one usually quoted from the identical 1907 text; loc. cit., where both texts are reproduced side by side.

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and repeated in the relevant Articles of the Geneva Conventions. In the light of past experience this could hardly have been considered a satisfactory solution; it proved even less so in subsequent armed conflicts, many of them of the guerrilla type, in which irregular fighters frequently resorted to tactics entirely at variance with one or other of the aforementioned conditions. It was therefore inevitable that the position of irregular fighters would once again become a bone of contention in the new round of discussions on the “reaffirmation and development” of humanitarian law. The setting, while very similar in one respect (which is further discussed below) was strikingly different in another. At the Brussels and Hague Conferences, the European States had discussed the problems of occupation and resistance as-it-were in the abstract. True, the memory of the Franco-German war was still fresh, and moreover, as pointed out above, the weaker States were constantly aware of their position of relative inferiority. Yet, it was not existing but potential, hypothetical situations which the States participating in these Conferences had wished (and failed) to regulate. At the Diplomatic Conference of 1974-1977, on the other hand, the topicality of the “struggle against colonialism, alien occupation and racism” loomed large over the discussions. Indeed, so dominant was the influence exerted by this topical issue on the minds of the participants in the debate that many of them, especially among those from Third World countries, visualized themselves not so much as lawmakers for hypothetical future cases, but rather as pursuers of their governments’ constant policy of “support for the just struggle of peoples that are still colonized and oppressed” or, even more directly, of “the peoples of Palestine and Southern Africa”. The immediate, concrete and strictly limited goal sought by this group of participants was simply to obtain formal recognition, in solemn treaty form, of what the UN General Assembly had ever since 1968 consistently affirmed, viz., that “freedom fighters in southern Africa and in colonial Territories, when captured”, had a right “to be treated as Prisoners of War under the Geneva Conventions of 1949.” Obtaining this recognition would constitute the second step towards the realization of their goal, the first step having been the adoption by the Diplomatic Conference of Article 1, Protocol I, recognizing that “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self30

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Convention I (the Wounded and Sick Convention), Art. 13(2); Convention II (the Wounded, Sick and Shipwrecked Convention), Art. 13(2); Convention III (the Prisoners of War Convention) Art. 4A(2). CDDH/SR.41, 26 May 1977, Annex p. 9: written explanation of vote on the part of the delegation of Mauritania. Ibid., p. 19: explanation of vote by the delegate of Mozambique. Res. 2446 (XXIII), confirming Res. XXIII of the International Conference on Human Rights, Teheran 1968.

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determination” are international armed conflicts. For the sake of completeness, it should be emphasized once again that this Article, far from covering every imaginable struggle for self-determination in the broadest sense, is confined to those cases falling within the restricted meaning attributed to that notion in the Friendly Relations Resolution. The Article does not apply in a situation of armed conflicts within the territory of a single State that is being waged between the authorities in power and an insurgent party presenting itself as a “liberation front” fighting for the “self-determination” of a people living within the territory of that State, where the State, in the terms of the said Resolution, is conducting itself “in compliance with the principle’ of equal rights and self-determination of peoples as described above [i.e., in the preceding paragraphs of the Resolution] and [is] thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” Translated into terms of practical politics, this amounts to saying that the struggles for self-determination envisaged in the Article are solely those, referred to a moment ago, of “the peoples of Palestine and Southern Africa”. 2.3

Status and/or Treatment of Irregular Fighters

While, thus, the “second step” pursued by this group of participants did not go beyond the short-term aspiration of adding yet another minor victory to the many already won in the battle against today’s black sheep: “colonial domination, alien occupation and racist regimes”, from another point of view it bore a striking resemblance to the aim which the small Powers had pursued at the Brussels and Hague Conferences, viz., to obtain general recognition that the members of an occupied population resorting to armed resistance were fighting a just war, and on that account alone would qualify as combatants. It should be emphasized that with respect to today’s “liberation fighters” as well, the claim was that the just cause for which they were fighting was inherently sufficient to render them eligible for prisoner-of-war status, wholly irrespective of whether they fulfilled or could fulfil - the technical conditions for such status. In this respect, therefore, history has repeated itself, and the concept of bellum justum was once again set against the generally accepted doctrine that only those who fulfil certain named conditions will qualify as combatants (and, consequently, as prisoners of war). Draft Protocol I as submitted to the Conference by the ICRC contained an Article 42 entitled “New category of prisoners of war” which, far from honouring the bellum justum thesis, provided a reformulation of the traditional conditions, with one noteworthy innovation: those wishing to qualify for prisoner-of-war

34

Res. 2625 (XXV), in the section on “The Principle of Equal Rights and Self-determination of Peoples”.

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status would have to “distinguish themselves from the civilian population in military operations.” This condition, designed as it was to replace the old and rather too specific ones of wearing a distinctive sign and carrying arms openly, at the same time could not fail to bring into prominent relief what was really the heart of the matter, viz., that the choice was once again, as it had been in the past, between (a modicum of ) protection for the civilian population and (full) protection for a particular category of irregular fighters. The ensuing debate at the Conference was long, complicated, confusing and at times acrimonious. Yet, throughout the deliberations the political will persisted in all quarters (though not perhaps shared by each and every member of these respective “quarters”) to bring matters to a successful conclusion. For the ultimate success of the enterprise one man deserves special credit: Mr. George Aldrich, Deputy Legal Adviser at the U.S. Department of State, Head of the U.S. delegation at the Conference and Rapporteur of Committee III. In this last capacity he chaired the meetings of its working group set up to deal with the real business at hand; and in the discussions on Article 42 and related articles, as in those on other articles allotted to the Committee, his intelligence, grasp of the subjectmatter, constructive approach and leadership proved invaluable assets in the delicate task of sorting out the problems and overcoming one by one, with dogged tenacity, the many obstacles that constantly appeared on the way. Through all this he was and remained a convinced partisan of the doctrine requiring the fulfilment of certain conditions as a prerequisite for combatant (and prisoner-of-war) status. His main opponent in this, and an equally tenacious negotiator, was the Vietnamese delegate Mr. Nguyen Van Luu (who, incidentally, like Mr. Aldrich had taken part in the Paris peace talks between the United States and (then) North Vietnam). Although Mr. Van Luu’s comments were usually highly coloured and at times decidedly vitriolic, fortunately for the outcome of the debate, he too was bent on achieving a widely acceptable result - this in line, of course, with the political goal sought by the group of delegates of which he was such an outstanding member. He was thus willing to go for a compromise when a one hundred per cent victory appeared unattainable. The inevitable result was indeed a compromise and, fortunately, not a bad one at that. A first major step in the right direction was taken when it was decided to expand the concept of the Article immediately preceding Article 42 in the ICRC draft. As proposed by the ICRC, draft Article 41 dealt solely with the requirement that armed forces be organized and subject to discipline. The Committee maintained these elements but incorporated them into a text which also provided 35 36

The ICRC proposal treated the matter as one of prisoner-of-war rather than combatant status. For an account of an incident involving Mr. Van Luu and the present writer, as Rapporteur of an experts’ conference on conventional weapons, see 6 NYIL (1975) at pp. 87-88.

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a definition of “armed forces”. As drafted by the Committee, the text read as follows: The armed forces of a party to the conflict consist of all organized armed forces, groups, and units which are under a command responsible to that party for the conduct of its subordinates, even if that party is represented by a government or an authority not recognized by an adverse party. Such armed forces shall be subject to an internal disciplinary system, which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. These rules include those established by applicable treaties, including the Conventions and this Protocol, and all other generally recognized rules of international law.

The Committee followed this up with a second paragraph, which likewise merits quotation in full: “Members of the armed forces of a party to the conflict (other than medical personnel and chaplains covered by article 33 of the Third Convention) are combatants, that is, they have the right to participate directly in hostilities.” With the adoption by consensus of these two paragraphs (and a third one which is not relevant here) Committee III had decided a number of crucially important issues at a stroke. It had established the principle that a single standard would apply to all armed forces, whether regular or irregular, and that, hence, no special law would be created for the latter. It had placed beyond dispute that those wishing to qualify as “armed forces” must fulfil certain specified conditions. It had made explicit what in Article 1 of the Hague Regulations had been an implied presumption at best: viz., that regular armed forces too are required to fulfil these conditions. It had defined the term “combatant” in such a manner “that it proved possible to avoid terms such as ‘lawful combatant’, ‘legitimate combatant’, and ‘privileged combatant’”, terms which had given rise to much controversy in the past. It had reaffirmed the principle, implicit in Article 1 of the Hague Regulations, that those qualifying as combatants “have the right to participate directly in hostilities” and, thus, cannot be punished for the sole fact of having so participated (although they can be punished for violations of the “rules of international law applicable in armed conflict” committed in the course 37 38

39

In its final drafting, the word “party” is spelled throughout the Article with a capital “P”. CDDH/236/Rev. 1: Report of Committee III, 3rd session, paras. 41-45. The third paragraph deals with the delicate problem that arises when “a party to the conflict incorporates a paramilitary or armed law enforcement agency into its armed forces”: it then “shall so notify the other parties to the conflict.” In the final version of Protocol I this Article figures as Art. 43. CDDH/III/361/Add. 2, p. 2: report on the discussions concerning Art. 42, held in the working group during the third session.

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of their participation). And it had listed three conditions for combatant status: organization, responsible command, and discipline, with the last requirement amounting to a rather striking modification of the traditional one of “conducting operations in accordance with the laws and customs of war” and at the same time providing an interesting, at least partial definition of “the rules of international law applicable in armed conflict”, a phrase which, as the Committee report does not fail to note, “occurs in a number of articles” of the Protocol. The above Article, when subsequently brought up for decision in the final round of plenary meetings of the Conference, was adopted once again by consensus and, indeed, without as much as a word of comment. In the definitive version of Protocol I, it figures as Article 43 (“Armed forces”). 2.4 When and How to Distinguish Oneself from Civilians? There remained the most delicate issue of all: viz., the requirement for combatants to distinguish themselves from civilians. It is a most striking fact that this does not figure among the conditions for combatant status listed in Article 43: to what extent would combatants be required to maintain the distinction nonetheless, and what would be the consequences of non-compliance? In Committee III, the debate on these questions predictably took up a great amount of time and energy. Even during the second session, in the course of the introductory debate on draft Article 42, many delegates had dwelt at length on the issues involved. Then, during the third session, the working group of Committee III spent some weeks of difficult negotiations trying to find acceptable solutions for the problems at issue. By the end of that session the working group had indeed worked out a compromise text which it felt it could submit to the Committee. It soon became apparent, however, that the time was not yet ripe for the matter to be decided by that body: so much resistance to the proposed text still persisted, especially among the Western and Latin-American delegations, that it was considered the wiser course not to press for a decision at that juncture and to postpone this until the following session. By the time of that (fourth) session, most of these delegations, although still far from satisfied with the text elaborated in the working group, had nevertheless 40 41

42 43 44

CDDH/236/Rev. 1: Report of Committee III, 3rd session, para. 43. CDDH/SR.39, 25 May 1977, p. 23; the delegation of Israel was the only one to refer to the Article at all, in a written explanation of vote handed in afterwards which lays stress on the need for effective compliance with the rules of international law applicable in armed conflict; ibid., Annex, p. 3. The statements made at the time were reproduced as a separate Conference document: CDDH/SR.33-36, Annex. CDDH/III/361/Add. 2: Report of Committee III on the deliberations of the working group on draft Article 42. CDDH/236/Rev. 1: Report of Committee III, 3rd session, paras. 83-94.

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realized that a more acceptable compromise solution simply would not be forthcoming; hence, they were grudgingly prepared to resign themselves to the inevitable. Yet, to adopt the Article by consensus appeared even then to be asking too much. When the Chairman of Committee III appealed to the members to do this, the representative of Israel formally opposed this procedure and requested a vote; thereupon, the Algerian representative requested that the vote be taken by roll-call. The result of the vote was an overwhelming majority in favour of the Article. It was adopted by 66 votes to 2 (Brazil and Israel) with 18 abstentions, mostly from Western and Latin-American delegations. Some weeks later, in the plenary meeting, this procedure virtually repeated itself. Once again, the Israeli delegation “was unable to accept the consensus on Article 42 and requested that it be put to the vote.” This time the delegate of Madagascar “asked that the vote should be taken by roll-call.” The outcome of the vote was an even more pronounced majority in favour of the Article: 73 to 1 (Israel) with 21 abstentions. So adopted, it figures as Article 44 (“Combatants and prisoners of war”) in Protocol I. After this brief description of the course of events with respect to the Article in Committee and in the plenary Conference, it is appropriate to revert to the substantive side of the matter and the questions raised above. The answers to these questions lie in paragraphs 3-7 of Article 44. First, in the opening sentence of paragraph 3 the principle of distinction emerges once again triumphant: In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.

So formulated, the principle was acceptable to all; with respect to regular armed forces it merely seemed to reaffirm the self-evident, whereas so far as irregular armed forces were concerned the restriction to the period of engagement “ in an attack or in a military operation preparatory to an attack”, although not very precise in itself, at least brought out clearly that the impossible would not be required of these forces; notably, they would be under no obligation to wear (in the words of Article 1 of the Hague Regulations) “a fixed distinctive emblem recognizable at a distance” even when not in any manner directly engaged in such military activities. Yet, this general acceptance could not mask the fact that different interpretations were placed upon the significance of the agreed text by various participants in the debate. Thus, Mr. Van Luu, the Vietnamese delegate, did not cease to repeat that combatants, generally speaking, are obliged to distinguish themselves from the civilian population. He unmistakably meant this to apply 45 46

CDDH/III/SR.55, 22 April 1977, pp. 2-3. CDDH/SR.40, 26 May 1977, pp. 2-4.

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in particular to those most typical of war criminals, the aggressor forces of the imperialist (capitalist, colonial, racist) Powers. In his line of thinking, the principle would, however, have to suffer an exception in favour of the valiant defenders of the peoples falling victim to these vile aggressors and struggling for their selfdetermination: these noble men and women could not, without committing suicide, walk about in uniform. More fundamentally, since the whole populace was really the defending force, it would simply be wrong for one part of the population to be obliged to distinguish itself from the rest, on the sole ground that it happened to be actively engaged in the hostilities. Patiently yet unflinchingly, Mr. Aldrich and his supporters retorted that the effect of such a sweeping exemption would be to put in jeopardy precisely those populations which the Vietnamese delegate and his friends were seeking to protect. They therefore refused to accept the idea of a general exemption in favour of guerrilla forces fighting for self-determination (or for any other cause, for that matter). They were willing, on the other hand, to concede that the armed forces in question could not be expected to distinguish themselves at all times and in all circumstances in the same manner as regular armed forces are expected to do. In the end, this proved to be the middle ground on which a compromise could be found, although (as related above) it took the working group of Committee III no end of trouble, and the better part of the third session, to work out a form of words acceptable to both sides. This formula, which constitutes the second sentence of the third paragraph of Article 44, reads as follows: Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

In a third and last sentence, it is placed beyond question that “acts which comply with the requirements of this paragraph shall not be considered as perfidious” within the meaning attached to that notion in the relevant Article of the Protocol. This is an interesting text in more than one respect. First, the reference to the “nature of the hostilities” makes clear that the exemption is meant to apply in special situations only (and not, for instance, to irregular armed forces generally). The decisive element is, furthermore, the nature of the hostilities, rather than the cause of the conflict. The Article does not spell out which types of hostilities are 47

Art. 37 deals with the matter of perfidy.

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considered to be of such a nature as to render the exemption applicable, nor do the quoted words have a very clear “ordinary meaning”, not even when viewed “in their context and in the light of the object and purpose of the treaty”: the only thing that emerges with sufficient clarity is that the “nature of the hostilities” must be such as to lead to situations “in which a combatant cannot distinguish himself and retain a chance of success.”. For the rest, one might hope to gain some further insight into the meaning of the phrase from the “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (although, as will be explained below, not too much should be expected of this means of interpretation in the present instance) and of course, to the extent that this is permissible, from the “preparatory work” (Articles 31 and 32 of the Vienna Convention on the Law of Treaties). In the present case the travaux préparatoires do indeed bring to light a certain general understanding about the construction to be placed upon the quoted phrase; in the explanations of vote given subsequent to the adoption of (then) Article 42 by Committee III and, somewhat later, in the plenary Conference, there was a marked unity of opinion that the situations envisaged in the second sentence of paragraph 3 can arise solely in occupied territory and in the case of wars of national liberation (as defined earlier) – precisely the two types of situation which inspired the debate from the very outset. A second aspect concerns the degree to which the requirement should be relaxed for those combatants who find themselves in a situation of the above kind. The normal requirement of distinction from the civilian population is set aside, and the quoted sentence substitutes for this the lesser requirement of carrying arms openly during the periods of time indicated under (a) and (b) above. The reasoning behind this is that, were this more restricted requirement to be abandoned too, the combatants in question could with impunity carry their use of civilian attire so far as to “feign civilian, non-combatant status” even in carrying out an attack, a mode of conduct which the Conference has rightly denounced as perfidious. Of the two periods of time mentioned, the first (“during each military engagement”) does not seem to require any further clarification. In contrast, it may not be altogether an easy matter to determine when a combatant is considered to be “visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.” Two factors are decisive here: engagement in a “military deployment”, and visibility to the adversary. Each of these terms was given widely divergent interpretations in the course of the proceedings. Thus, while the delegate of the Federal Republic of Germany said that his delegation, which had introduced the term “military 48 49 50

See the report of Committee III, referred to in note 43 supra. CDDH/III/SR.55-56, 22 April 1977; CDDH/SR.40-41, 26 May 1977. See note 47 supra.

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deployment” in the debate as a military term of art, understood it to mean “any uninterrupted tactical movement towards a place from which an attack was to be launched”, the Egyptian delegate attached to it the far more restricted meaning of “the last step in the immediate and direct preparation for an attack, when the combatants were taking up their firing positions.” Similarly, visibility was interpreted by some (e.g., the delegate of the United Kingdom) in the wide sense of being under observation, including observation with electronic devices, whereas others, among them the delegate of Syria, believed the term to imply “that the combatant knew or ought to know that he was visible to the enemy.” Even more clearly, the representative of the Palestine Liberation Organization construed it “to mean visible to the naked eye, since recourse to electronic devices would divest the article of its value and undermine its very purpose.” All these divergences of opinion and interpretation remained unresolved in Committee III. Likewise, at the stage of the plenary meetings of the Conference, no further clarification emerged from the explanations of vote, which merely repeated the positions taken earlier on. In these circumstances, is it then perhaps the case that the “ordinary meaning” of the above terms puts one of the sides unequivocally in the right? Let us take a brief look at the word “visible”. In the eyes of many a layman, this word may indeed at first glance convey the “ordinary meaning” of being “visible to the naked eye”. But would one be justified in simply overlooking the use of that perfectly ordinary device, the field glass? And what should be the attitude to infra-red field glasses? Is it too fantastic a step from this to the even more sophisticated electronic observation devices developed and deployed in recent times? Understandably, those who have such devices at their disposal will feel inclined to subscribe to the British view that “visible” means “being under observation” in the widest possible sense. On the other hand, it would be difficult to deny some merit to the Palestinian argument that to count even electronic observation devices among the means rendering a combatant “visible to the adversary” would be tantamount to frustrating the very purpose of the Article – if one accepts that this purpose is to extend maximum protection to the combatants in question (and, thus, maximum risk to their opponents). There is, however, another side to the matter. Those who participated in the above debate apparently sought to interpret the word “visible” not in its context but as an isolated term. It is suggested that, taking into account the context in which the term is employed, the real question at issue is whether a man is visible as a person who does, or does not, carry arms openly. This considerably narrows the range of possible interpretations. Electronic observation devices do not yield this type of information, and neither do the infra-red field glasses most commonly in use at the present time. This is to say that the British position is untenable and the only remaining question is whether the term should be taken 51 52

CDDH/III/SR.55-56, 22 April 1977. CDDH/SR.40-41, 26 May 1977.

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to embrace, besides visibility to the naked eye, the type of visibility which results from using an ordinary field glass. The answer to this more limited question may safely be left to other experts. At all events, they will still find themselves confronted with the question from what moment our man must be “visible”: when precisely must he be considered to be “engaged in a military deployment”? Here, no contextual considerations present themselves to the present writer that would help solve the riddle, and it seems predictable that interpretation at least of this term will continue to vary according to the interests each side in the conflict has at stake. The “armed combatant” who, finding himself in a situation as envisaged in the second sentence of paragraph 3 of Article 44, acts in compliance with the requirements set out there, “shall retain his status as a combatant” and his “acts … shall not be considered as perfidious”, says the Article. What will be the position of the man or woman who does not so comply? For a full understanding of the answer to this question, reference should be made in the first place to the general system embodied in the first two paragraphs of Article 44: while paragraph 1 lays down the basic rule that “Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war”, paragraph 2 provides that “violations of [the rules of international law applicable in armed conflicts] shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.” It should be emphasized immediately that paragraphs 3 and 4 do not attach any special consequences to a violation of the general rule of distinction from the civilian population by a common combatant, including the not-so-common member of a militia or volunteer corps as referred to in Article 1 of the Hague Regulations. To this extent, the new system probably deviates from, and at all events represents a marked improvement over, the traditional one of the Hague Regulations. Under that traditional system, the conditions for combatant status are addressed to “militia and volunteer corps”, not to individual members of such units. This has led in the past to considerable debate as to whether an isolated act of non-compliance with the requirements of Article 1 of the Hague Regulations should entail loss of status for the individual perpetrator, or whether this consequence should arise solely in the event of massive non-compliance, and then for the militia or volunteer corps as a whole. Articles 43 and 44 of Protocol I now bring clarity in this matter. Not only these famous militia and volunteer corps, but all organized armed forces must henceforth comply with the requirements listed in Article 43; these do not include having a fixed distinctive emblem nor carrying arms openly; the Article, moreover, is so formulated as to dispel all doubt that the organized units and not their individual members are the addressees of these requirements. In contrast, Article 44(1) places the obligation to distinguish oneself from the civilian population on each combatant individually; non-com-

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pliance, e.g., by neither having a distinctive emblem nor carrying arms openly, is punishable as a war crime, but does not entail any loss of status. 2.5

An Exceptional Regime for Irregular Fighters

It is only in relation to the special situations contemplated in the second sentence of paragraph 3 that this general system is abandoned for an exceptional regime. The first exception is found, although in somewhat concealed form, in the quoted sentence: by laying down that a combatant who cannot distinguish himself from the civilian population in the usual manner shall nevertheless “retain his status as a combatant” provided that he “carries his arms openly” during the periods of time indicated in the paragraph, it implies at the same time that a person who fails to comply with this minimum requirement forfeits his combatant status – that is, in the terms of Article 43(2), his “right to participate directly in hostilities.” Put another way, his very participation in hostilities will then amount to a punishable act, and so, of course, will his “feigning of civilian, non-combatant status”, an act which, as mentioned before, is qualified as perfidy elsewhere in the Protocol. The other consequence of non-compliance, which follows more or less logically from the first one, is forfeiture of prisoner-of-war status. However, although this does indeed form the point of departure, paragraph 4 is couched in language designed to remove much of its sting. It reads as follows: A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed. First, as the paragraph clearly spells out, the consequence of forfeiture of prisoner-of-war status shall arise only when a combatant falls into enemy hands “while failing to meet the requirements…” This point deserves some emphasis: although the act committed by the combatant in question is and remains a punishable act irrespective of whether he is captured then and there, the particular sanction of loss of status becomes operative only in the event that he is so captured. This restriction is expressly confirmed in paragraph 5, laying down that “Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.” Paragraph 4 furthermore holds out to our non-prisoner of war “protections equivalent … to those accorded to prisoners of war …” This is a most peculiar 53

Art. 37; see note 47 supra.

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provision in that, at least on the face of it, it comes very close to giving back with one hand what was taken with the other. The report of Committee III describes its effect as follows: In essence, paragraph 4 provides a separate, but equal, status for combatants who are captured while failing to observe even the minimal rule of distinction set forth in the second sentence of paragraph 3. They are not to be prisoners of war (and under paragraph 3, they will have forfeited their combatant status), but they shall benefit from procedural and substantive protections equivalent to those accorded prisoners of war by the Third Convention and the Protocol.

Neither paragraph 4 nor the above paragraph of the Committee report specifies any further which “procedural and substantive protections” shall be accorded these persons. Must they be kept in camps “equivalent to” prisoner-of-war camps; supplied with “equivalent” food and clothing; granted “equivalent” working conditions? Will they be entitled to send and receive letters and cards, to receive relief, to address requests and complaints to the representatives of Protecting Powers or the ICRC in a manner “equivalent” to the comparable rights of prisoners of war? All these matters are left entirely in the dark, witness the statement of the delegate of Australia in Committee III: “His delegation had had considerable difficulty in identifying the precise treatment to be accorded to such a person.” Later on, when the plenary Conference had adopted the Article, the same delegate in explaining the vote of his delegation drew at least one pertinent conclusion from paragraph 4, viz., that the “status after capture did not provide any inducement to comply with the provisions of paragraph 3.” He continued: “The sanction designed to induce a guerrilla to comply with Article [44] was liability to trial and punishment for an offence under the applicable laws of war or criminal law – a liability arising immediately upon loss of combatant status by reason of non-compliance with paragraph 3.” The last-quoted sentence really points up the crux of the matter. The extra sanction of loss of status (besides the generally applicable one of liability to trial and punishment for an act of perfidy) is designed to accomplish two things. First, deterring the guerrilla fighter concerned from continuing to feign civilian status up to the very moment of actually engaging the enemy. Secondly, in the not entirely improbable event that the deterrence fails, enabling the capturing Power to put the guerrilla fighter on trial as a non-prisoner of war, that is, as an ordinary civilian who has committed a punishable act (which can be either the crime of directly participating in hostilities without being entitled to do so, or another crime under that Power’s criminal law). The importance of this latter consequence 54 55 56

CDDH/III/361/Add.2. CDDH/III/SR.55, 22 April 1977, para. 54. CDDH/SR.40, 26 May 1977, pp. 12-13.

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lies in the consideration that, although it is permissible under the Third Geneva Convention and the Protocol to put prisoners of war on trial while an armed conflict is in progress, such trials are rare and, indeed, are usually avoided for fear of repercussions from the side of the adverse Party. In the situations contemplated in the second sentence of paragraph 3, however, and notably in the event of an armed occupation, it would be intolerable for an occupying Power to have to forgo the trial and punishment of the (probably) numerous resistance fighters which it captured while they were not complying with the requirements of that sentence. Paragraph 4 serves to safeguard this weighty interest of occupying Powers, and once this is accomplished, it matters little that such Powers are then obliged to extend to the persons in question “protections equivalent in all respects to those accorded to prisoners of war”. We thus find in Article 44, paragraphs 3 and 4, a carefully balanced exceptional regime for guerrilla fighters in special situations. Assuming that the delegates to the Conference were right, the applicability of the regime is restricted exclusively to resistance fighters in occupied territory and liberation fighters in certain well-defined struggles for self-determination. The importance of the new regime, especially for the latter category of guerrilla fighters, cannot be better demonstrated than by quoting once again Mr. Nguyen Van Luu, the delegate of Vietnam, who said in his explanation of vote in the plenary meeting that, the adoption of Article [44] by a large majority in a plenary meeting of the Conference was a great satisfaction to those who wished to develop international humanitarian law. Article 1(4) changed the legal status of combatants who were fighting for their social and political emancipation. Article [44] gave specific expression to their new status, especially if they fell into the power of an adverse Party. Formerly such combatants had fought without distinguishing themselves from the civilian population. In accordance with paragraph 3 of Article [44], combatants were now obliged to distinguish themselves from the civilian population while engaged in an attack or in a military operation preparatory to an attack. They were now to be treated as prisoners of war under the Third Geneva Convention of 1949.

Ironically, the newly adopted Articles of Protocol I will almost certainly fail to achieve this result, at least from a strictly technical point of view, precisely with respect to those “combatants fighting for their social and political emancipation” which Mr. Van Luu had in mind. The rule that these combatants should be treated as prisoners of war, although repeatedly proclaimed in resolutions of the General Assembly, can hardly be said to have acquired the status of a rule of customary law prior to the adoption of Articles 43 and 44 by the Diplomatic Conference. It would seem hard to deny that it therefore constitutes a new rule 57

CDDH/SR.41, 26 May 1977, p. 17; italics supplied.

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of international humanitarian law, which will become binding upon those States, and those States alone, which ratify the Protocol. Now, the chances that the States most immediately addressed by the new rule will indeed proceed to ratify it seem remote to the point of being negligible. Therefore, technically speaking, those States will not become bound by the new rule. The irony of the matter will then be that those delegations who so fervently sought to achieve the adoption of these Articles by the Diplomatic Conference will have exerted themselves – not entirely in vain, but – for a totally different situation than the one they had in mind; indeed, their exertions will have contributed greatly to bringing about a solution for that most vexing problem of the traditional law of war, viz., the position of resistance fighters in occupied territory. The above is true in a technical sense, and from a traditional Western point of view. There is, of course, an altogether different school of thought which maintains that law, even on the international plane, is what the (international) community says it is. According to this line of thinking (which its adherents usually apply somewhat selectively to those situations which they seek to subject to a certain international regime, while in other situations preferring to rely on the sovereignty of the State to ward off any undesirable encroachments upon their freedom of action), the adoption by the Diplomatic Conference of a formal treaty provision embodying the rule that liberation fighters engaged in struggles for self-determination must be accorded prisoner-of-war status will suffice to lend this rule that last bit of authoritative power which the repeated resolutions and declarations of the General Assembly, no matter how authoritative in themselves, still left to be desired. Put another way, any lack of ratification by particular States will render the rule no less binding on the international community as a whole, including of course those few non-ratifying States. It must be admitted that lack of ratification by certain States will not affect the power of the organized international community to invoke the rule as a valid norm of international humanitarian law, expressly recognized even by the Diplomatic Conference, and to pass resolutions condemning failure to respect it as an international crime. Such resolutions will obviously be of limited effectiveness. In this respect, it may be a consoling thought, especially to those who adhere to the more traditional line of thinking, that the new rule may at any rate be expected to acquire the even greater effectiveness of a treaty rule accepted as such by the States concerned, in precisely those situations indicated above in which an occupying Power, Party to the Protocol, finds itself confronted by armed resistance from the inhabitants of the territory it is occupying. Besides the articles discussed above, the Conference adopted two further articles that should be briefly mentioned here. One (Art. 46), under the heading of “Spies”, deals with the “member of the armed forces of a Party to the conflict” who, either, engages in espionage and then “may be treated as a spy” (para. 1), or “gathers or attempts to gather information” in enemy territory while “he is in the uniform of his armed forces” and then “shall not be considered as engaging in

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espionage” (para. 2). While this simply confirms the existing law on the subject as laid down in Article 29 of the Hague Regulations, paragraph 3 brings clarity to a matter which thus far had remained obscure, viz., the position of the “member of the armed forces of a Party to the conflict who is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of military value within that territory”: in short, the resistance fighter who counts the tanks passing under his windows. This activity, the paragraph says, does not constitute espionage unless it is done “through an act of false pretences or deliberately in a clandestine manner.” The resident member who does engage in espionage may be treated as a spy only when he is captured while so engaged. This is a special case of the existing general rule to the effect that no one who has engaged in an act of espionage may be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs. This general rule finds further confirmation in paragraph 4, which makes it applicable to the member of the armed forces who, not being a resident of territory occupied by an adverse Party, has engaged in espionage in that territory. The other article (47) lays down that “A mercenary shall not have the rights to be a combatant or a prisoner of war”. This provision was included in the Protocol mainly at the urging of the African States, and in the face of objections from many Western delegations. It might prove to have done considerable harm to the cause of humanitarian law, as it runs counter to the basic rule that, in principle, all those who take an active part in hostilities should be treated equally and without discrimination on the basis of their motives for joining in the fighting. Fortunately, the second paragraph of the article provides a definition of “mercenary” the effect of which is to remove much of the danger inherent in the first paragraph. One of the six elements cumulatively listed in the definition is the requirement that the person in question “is not a member of the armed forces of a Party to the conflict.” In other words, only those persons will be mercenaries who, although organized as a group or unit and fighting on the side of a Party to the conflict, are not, in the terms of Article 43, “under a command responsible to that Party to the conflict for the conduct of its subordinates.”

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Art. 47, para. 2 reads: “A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict, (e) is not a member of the armed forces of a Party to the conflict, and (f ) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

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Protection of the Civilian Population

As set out in section II, the Diplomatic Conference by adopting Article 48 of Protocol I reaffirmed the principle of distinction between civilians and combatants and between civilian objects and military objectives. The obligation to make these distinctions serves, as the Article states, “to ensure respect for and protection of the civilian population and civilian objects.” As a logical consequence, the Article lays down that the Parties to the conflict “accordingly shall direct their military operations only against military objectives.” “Respect” and “protection” are key notions in the law of Geneva relating to the protection of war victims. As Jean Pictet explains, the two notions are complementary, with “respect” having a more negative and “protection” a more positive connotation. To respect a person means to abstain from doing him harm or threatening him, to spare his life, integrity and means of existence, to show consideration for his personality. Protection means to shield a person from the evil, dangers or suffering that might threaten him, to come to his defence, to lend him aid and support. The history of recent armed conflicts makes abundantly clear that the civilian populations in affected countries are in dire need of such “respect and protection”. At the same time, these concepts are evidently too broad and too vague to serve, of themselves, as guidelines for the actual conduct of hostilities. Similarly, the mere reaffirmation, even in solemn treaty form, of the principle of distinction cannot be expected to bring about any radical improvement in the often dismal fate of these civilian populations. Clearly, the principle of distinction and the concepts of respect and protection were in need of elaboration into a set of detailed rules governing the conduct of hostilities, which would balance, as carefully as possible, the humanitarian values at stake with military requirements. This is precisely what Articles 49-67 purport to achieve: in often minute detail, these articles lay down rules for the general protection of civilians and civilian objects, as well as for the special protection of objects indispensable to the survival of the civilian population, of the natural environment, of works and installations containing dangerous forces, of non-defended localities and demilitarized zones, and of civil defence organizations. In part, the articles reaffirm existing law; for another part, they lay down new rules. In either case, the formulation ultimately agreed upon was the outcome of a prolonged negotiating and drafting process, with fallible human beings as the actors, and characterized more often than not by the need to reconcile sharply conflicting interests and diametrically opposed views. The result, of course, is less than perfect. Yet, the broad spectrum of expert knowledge about the realities of 59

Jean S. Pictet, Le Droit humanitaire et la Protection des victimes de la guerre (1973) at pp. 84-85. See also The Geneva Conventions of 12 August 1949, Commentary published under the general editorship of Jean S. Pictet, vol. I (1952) pp. 134-135.

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present-day armed conflict represented in many of the delegations participating in the Conference, as well as the patience and care with which the negotiations were generally conducted throughout the Conference, would seem to warrant the expectation that the rules which ultimately emerged are basically sound and are suited to be actually applied. Here, an obvious difficulty arises. The Conference elaborated one single set of rules designed to ensure respect for and protection of the civilian population in international armed conflicts. However, the reality of armed conflicts assumes many different forms, ranging from the classical pitched battle between armies in the field to all sorts of guerrilla-type operations, and from the use of mortars, tanks and ground-support fighters to that of long-range artillery, strategic bombers and ballistic missiles. While this may of itself give rise to widely divergent evaluations of the potential efficacy of given rules, it might even be queried whether the adoption of a single set of rules purporting to govern all these diverse situations was really the most appropriate course to take. The answer is twofold: first, the specific problems posed by the deployment and possible use of nuclear weapons were considered from the very outset to be beyond the scope of the Conference. Second, the Conference did not even contemplate the possibility of making different sets of rules, say, for traditional land warfare, air warfare, guerrilla warfare, and so on: the rules it designed were, indeed, expected to be applicable to all these different types of warfare. The rules, it should be added, were not drafted as military instructions which, as such, could be immediately applied by this or that branch of the armed forces: although far more precise and detailed than the basic principles they elaborate, they are still abstract rules designed to cover all contingencies. One obvious conclusion is that to have their full effect, they will in turn have to be elaborated into military instructions. Equally obviously, much will come to depend on those who write these instructions and, notably, their faithfulness in rendering the principles and rules for the protection of the civilian population in language adapted to the specific requirements of each of the armed services. Most problematical of all will be, and remain, the instructions to irregular armed forces; it should be recalled, however, that Article 43 (“Armed forces”) makes it a requirement for all armed forces, the irregular ones not excluded, to be “subject to an internal disciplinary system, which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict”: such an 60

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“Problems relating to atomic, bacteriological and chemical warfare are subjects of international agreements or negotiations by governments, and in submitting these draft Additional Protocols the ICRC does not intend to broach these problems”: ICRC, Draft Additional Protocols to the Geneva Conventions of 12 August 1949, (1973) p. 2: Introduction. This point is made explicit in the report of Committee III on its work during the second session, CDDH/215/Rev. 1 para. 50.

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enforcement system presupposes a set of instructions spelling out what it is that shall be enforced. Rules on the protection of the civilian population and of civilian objects presuppose, first of all, a definition of the persons and objects falling within these categories. In providing these definitions, Protocol I takes a negative approach in both instances. The civilian population is stated to comprise “all persons who are civilians”, and a civilian is defined as “any person who does not belong to one of the categories of persons” qualifying for combatant status under the existing rules (Art. 50(1, 2)). Similarly, civilian objects are defined in Article 52(1) as “all objects which are not military objectives as defined in paragraph 2.” The question of which persons qualify for combatant status was discussed in some detail in section I. In the present context, it may be useful merely to recall that combatants, rare exceptions apart, must be recognizable as such at the crucial moment: Article 44(3) requires them “to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack”; this obligation arises “[i]n order to promote the protection of the civilian population from the effects of hostilities.” As for military objectives, Article 52(2) defines only objects qualifying as such, which takes account of “the fact that military objectives include objectives other than military objects – such as troops, their equipment and ground.” This restriction implies that the question of whether, and under what conditions, “troops, their equipment and ground” constitute military objectives is not governed by the specific definition of that concept given in Article 52. Generally speaking, it seems a reasonable assumption that enemy troops will represent a military objective no matter when and where they are found. Put another way, troops open to attack comprise not only those enemy units in the front line which are engaged in – or poised for – actual battle, but also concentrations of enemy soldiers in the rear, whether on the road or in camp. While this may seem a truism, it becomes somewhat less so if it is realized how often the civilian population has sustained severe losses while sharing a camp, or a road, with troops which the adversary had reason to regard – and in the circumstances chose to treat – as a military objective. We shall revert to this aspect of the matter later.

62 63 64 65

See 8 NYIL (1977) at p. 124. Art. 4A (1), (2), (3) and (6) of the Third Geneva Convention of 1949 and Art. 43 of Protocol I. Ibid., at pp. 126-129. CDDH/215/Rev. 1: Report of Committee III on its work during the 2nd session, para. 64. The definition reads as follows: “In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.

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According to the definition contained in Article 52(2), only those objects may be treated as military objectives which (a) “make an effective contribution to military action” and (b) “whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” The two criteria, it should be emphasized, are cumulative. The former criterion will be fulfilled whenever the “nature, location, purpose or use” of the object concerned so indicates. This is quite a broad list of factors; indeed, the inclusion of “location” and “use” in particular among the determinant factors would, without further qualification, have resulted in much too wide a power being left to military commanders to regard given objects as military objectives. This needed further qualification is provided by the second of the two criteria, requiring as it does that military commanders determine, in the light of the actual situation, whether the action they intend to undertake against a given object “offers a definite military advantage”. Admittedly, “definite” is a term which leaves ample room for divergent interpretations. Indeed, other terms were proposed in the course of the proceedings. The ICRC had originally proposed that the military advantage should be “distinct and substantial.” Other terms suggested at one time or another were “direct”, “clear”, “immediate”, “obvious” and “specific”. In the end, all these alternatives were rejected in favour of “definite”. It is doubtful that another choice would have made any noticeable difference; Mr. George Aldrich, Rapporteur of Committee III, notes in his report that he for one was “unable to draw any clear significance from this choice.” Perhaps more important than the choice of this particular term is the realization that the “definite military advantage” required under the definition must be present “in the circumstances ruling at the time.” This element in the definition effectively precludes military commanders from relying exclusively on abstract categorizations in the determination of whether specific objects constitute military objectives (“a bridge is a military objective”; “an object located in the zone of combat is a military objective”, etc.). Instead, they will have to determine whether, say, the destruction of a particular bridge, which would have been militarily important yesterday, does, in the circumstances ruling today, still offer a “definite military advantage”: if not, the bridge no longer constitutes a military objective and, thus, may not be destroyed. Even so, the distinction between civilian objects and military objectives will at times be difficult to make, and may leave room for doubt in concrete situa-

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In earlier proposals as, e.g., in the formula accepted by the Institut de droit international in its Edinburgh session, 1969, these two conditions were alternative rather than cumulative; Annuaire (1969-II) p. 375. See too this writer’s The Law of Warfare (1973) pp. 53-58. CDDH/III/224: Report to Committee III on the work of the Working Group, 24 Feb. 1975, p. 6.

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tions. The same goes, for that matter, for the distinction between civilians and combatants. It is, therefore, of the utmost significance that Articles 50 and 52 both contain a clause establishing a presumption in favour of civilian status. Article 50(1), after having (negatively) defined what makes a person a civilian, goes on to provide that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” As the Report of Committee III notes, a presumption of civilian status was considered necessary by some “in order to preclude unscrupulous belligerents from denying the protection of the Protocol to civilians.” On the other hand, the concept of presumption was felt to be insufficiently understandable to the soldier; to avoid the difficulties to which it might give rise it seemed preferable to replace the word “presumed” in the original ICRC text by “considered”. Even so, as this writer has noted earlier: This rule, when faithfully applied, would have a marked effect on certain aspects of contemporary military practice, especially in guerrilla-type situations; in fact, it would do away with the current (and often understandable) practice of “shooting first and asking questions later.”

With respect to objects, the factor of alleged use is, perhaps more than the nature, location or purpose of the objects concerned, apt to give rise to “unscrupulous denial of protection” on the part of belligerents. Article 52(3) seeks to preclude such unwarranted denial by, first, introducing the concept of “object normally dedicated to civilian purposes”, examples of which are stated to be “a place of worship, a house or other dwelling or a school.” The Article then goes on to lay down that in the case of doubt as to whether an object belonging to this category “is being used to make an effective contribution to military action, it shall be presumed not to be so used.” In the Working Group of Committee III much discussion was devoted to the question of whether this presumption should apply without reserve, or whether an exception should be made for objects located “in contact zones when 68

69 70 71 72

This was emphasized by Mr. Paolini (France) in his explanation of vote regarding Art. 52(2). His delegation, he said, was unable to accept the stipulation in the opening sentence of this paragraph that “[a]ttacks shall be limited strictly to military objectives”, because “there were many situations in armed conflicts in which it was difficult or even impossible to determine precisely the limits of a military objective, particularly in large towns and in forest areas, in either of which enemy armed forces and groups of civilians might be intermingled.” CDDH/SR.41, 26 May 1977, para. 150. This point is of particular importance with respect to the prohibition on indiscriminate attacks; see infra. CDDH/50: Report of Committee III, 1st session, para. 40. 3 NYIL (1972) at p. 35. Loc.cit. note 67. Proposed by the Swedish delegation: CDDH/III/52.

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the security of the armed forces requires a derogation from this presumption.” The exception was defended “on the grounds that infantry soldiers could not be expected to place their lives in great risk because of such a presumption and that, in fact, civilian buildings which happen to be in the front lines usually are used as part of the defensive works.” The Rapporteur in his Report to the Committee recommended adoption of the exception; as he argued: The presumption created by this paragraph will be a significant new addition to the law, and it is of the greatest importance that it be respected in practice. It would be unfortunate to draft the provision so that it requires something we know in advance is unlikely to be lived up to.

Despite these words of caution, the Committee rejected the exception. It seems useful to emphasize that both the “presumption” in favour of civilians and the presumption properly so-called in favour of a specific group of civilian objects are indeed new rules, which, if duly respected, will contribute significantly to the protection of the civilian population. As brand new rules, which often will have to be applied in critical situations where the instinctive reaction of the soldier would in all probability be to act otherwise than he is required now to do, these rules might well be extremely vulnerable, at least initially. It is to be hoped, therefore, that an extra effort will be made to give them their proper place in military instructions and, even more important, in combat training: only in that manner can the minimum level of compliance be guaranteed which will be necessary to transform these new rules of treaty law into effective rules of military behaviour. 3.1

General Protection: Direct Attacks

“The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations” (Art. 51(1)). General protection should be distinguished from special protection; while the latter term (as in the phrase “localities and zones under special protection” – the title of Part IV, Chapter V of Protocol I) is used to indicate the fullest protection, verging on immunity, the former term implies that only a certain measure of protection is provided without an attempt being made to remove all the risks to which the category of persons or objects concerned is exposed. Thus, general protection of the civilian population and civilian objects basically implies two things: a prohibition on making them the object of direct attack, and a requirement to avoid unacceptable collateral loss or damage as a result of attacks on military objectives. Articles 51 and 52 place beyond doubt that the prohibition on making the civilian population or civilian objects the object of attack applies regardless of motive. Thus, Article 51 prohibits in particular “acts or threats of violence the pri73

CDDH/215/Rev. 1: Report of Committee III, 2nd session, para. 65.

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mary purpose of which is to spread terror among the civilian population” (para. 2), “indiscriminate attacks” (para. 4) and attacks “by way of reprisals” (para. 6). And Article 52(1) provides that civilian objects “shall not be the object of attack or of reprisals”. In commenting on these particular prohibitions, it may be useful to deal with terror and reprisals first, reserving the concept of indiscriminate attacks to a later stage. The concepts of terror and reprisals, although technically distinct, are intrinsically closely connected. They are mentioned together in Article 33 of the Fourth, or Civilians, Convention of Geneva of 1949. The Article prohibits inter alia “collective penalties and likewise all measures of intimidation or of terrorism” and “reprisals against protected persons and their property.” These prohibitions apply mainly with respect to the civilian population inhabiting occupied enemy territory. The authoritative Commentary to the Geneva Conventions, published under the general editorship of Jean Pictet, does not even attempt to construe a clear distinction between the several notions referred to. It explains that “[d]uring past conflicts, the infliction of collective penalties has been intended to forestall breaches of the law rather than to repress them; in resorting to intimidatory measures to terrorize the population, the belligerents hoped to prevent hostile acts.” Evidently, “breaches of the law” and “hostile acts” will normally amount to the same thing in occupied territory. Then, an occupying Power will normally have recourse to such measures only after resistance has become manifest; thus, while the measures in question will be resorted to with a view to preventing further hostile acts, they will at the same time represent a reaction to past acts of resistance. Put another way, the “measures of intimidation or of terrorism” will as likely as not constitute both collective penalties and reprisals at the same time (or, rather, “quasi-reprisals”, as they are not primarily intended to bring pressure to bear on the enemy State or Government, but merely on the local population). The Commentary, in line with the above argument, states that “reprisals constituted a collective penalty bearing on those who least deserved it” – i.e., on those who were themselves innocent of the previous acts of resistance which gave rise to the collective penalty/measure of intimidation or of terrorism/reprisal. The reprisals which have now come to be prohibited in Articles 51 and 52 of Protocol I are genuine belligerent reprisals, as their aim would be to bring pressure to bear on the enemy authorities to abandon a mode of conduct which the retaliating side regards as an infringement of the law of armed conflict (e.g., attacks on the civilian population or which, although directed against military objectives, cause excessive losses among the civilian population). Yet, the relationship with acts “the primary purpose of which is to spread terror among the 74

The Geneva Conventions of 12 August 1949, op. cit. note 59, vol. IV (1958) pp. 225-226, 228. For a fuller discussion of the concepts of reprisals and “quasi-reprisals” and the history of their prohibition vis-à-vis protected persons, see this author’s Belligerent Reprisals (1971).

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civilian population” is as close here as in the context of Article 33, Fourth Geneva Convention. True, acts of terror can be resorted to without the enemy previously having done likewise; the “primary purpose” will then be “to spread terror among the civilian population”, but immediately behind that primary purpose looms the real purpose of the act, viz., to affect, via the morale of the civilian population, the decision-making process in the enemy State: affecting the morale of the civilian population is never an end in itself. Reprisals against the civilian population, on the other hand, presuppose some form of unlawful conduct of the adversary, against which they constitute a reaction. Yet, the purpose of the act of reprisal is once again primarily “to spread terror among the civilian population” and thus indirectly to influence future decisions of the enemy authorities. Put another way, while “acts of violence the primary purpose of which is to spread terror among the civilian population” need not be reprisals, “attacks against the civilian population or civilians by way of reprisals” will always also be acts of terror. Both the prohibition on acts of terrorism and that on reprisals against the civilian population encountered no significant opposition. They were adopted by consensus in Committee III and, although a vote on the Article containing these prohibitions was made necessary in Plenary by a request of France, it was adopted there by 77 votes in favour, one against (France) and 16 abstentions. It may be added that the objections France raised in Plenary were not connected with either the prohibition on acts of terrorism or that on reprisals. It should be noted, finally, that nothing in the language of Article 51(2) suggests that it is designed to prohibit only the type of large-scale, long-distance bombardment action well-known from the Second World War or the Vietnam War: on the contrary, it clearly encompasses terrorist acts of any scale, including the small-scale terrorist attack on the inhabitants of a village or house carried out by a band of guerrilla fighters. This realization gains importance in view of the fact that “wars of national liberation” are now counted among international armed conflicts, without any exception having been made regarding the applicability of the rules and principles for the protection of the civilian population. 3.2

General Protection: Collateral Injury

While the above prohibitions on attacking the civilian population or individual civilians as such, on terrorist acts and on attacks by way of reprisal are relatively 75 76 77

CDDH/215/Rev. 1: Report of Committee III, 2nd session, para. 60. CDDH/SR. 41, 26 May 1977, para. 118. France had long pushed for an article on “exceptional measures in the event of grave breaches.” See this author’s “Reprisals in the CDDH”, in Robert J. Akkerman et al., eds., Declarations on Principles - A Quest For Universal Peace (1977) pp. 195-216. In the end, France withdrew its proposal; CDDH/405/Rev. 1: Report of Committee I, 4th session, para. 28.

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straightforward, simple provisions, the rules concerning indiscriminate attacks are highly complicated. The opening sentence of Article 51(4) proclaims a clear starting-point: “Indiscriminate attacks are prohibited.” This is followed however by a definition of what indiscriminate attacks are (the remainder of para. 4) and a non-exhaustive list of types of attack that are to be considered as indiscriminate (para. 5). The rules contained in these paragraphs are, moreover, closely connected with the provisions in Chapter IV relating to “precautions in attack” (Art. 57) and “precautions against the effects of attack” (Art. 58), as well as with specific rules on the “presence or movements of the civilian population or individual civilians” in paragraphs 7 and 8 of Article 51. The complexity of this bundle of rules should not cause surprise: it is merely a reflection of the varied ways in which the civilian population can come to be exposed to the effects of hostilities. The attempt, in the above articles of the Protocol, to reduce to an acceptable level the loss and damage which the civilian population is bound to suffer as a result of attacks on military objectives, can perhaps best be understood by taking two extreme situations first. One is the attack against an area (a major city, for instance) containing, besides a concentration of civilians, one or more military objectives of greater of lesser importance. If the attack is directed, not against one or other of these military objectives but as-it-were blindly against the entire area, this constitutes the prototype of an indiscriminate attack, defined in Article 51(4), as an attack “of a nature to strike military objectives and civilians or civilian objects without distinction.” Its total lack of consideration for the civilian population makes this type of attack utterly reprehensible, and there can be no question that it has rightly been made the subject of an express prohibition. At the other extreme of the scale is the attack on a well-defined military objective, carefully prepared, with all due respect for the civilian population and carried out with appropriate and sufficiently precise weapons, but in the course of which some civilians unfortunately happen to be too close to the target and are inadvertently killed. In this case, the loss of civilian life, no matter how regrettable, will be regarded as unavoidable and, hence, acceptable. Specifically, the attack does not present the characteristics of an “indiscriminate attack” according to the definition in Article 51(4), nor is it to be “considered” as indiscriminate under paragraph 5; again, it does not violate the provisions of Article 57 (“precautions in attack”): indeed, it is in conformity with the basic requirement set out in the first paragraph of that Article: “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” 78

Art. 51(4) also regards as indiscriminate attacks “those which employ a method or means of combat which cannot be directed at a specific military objective” and “those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol.” It adds that the attacks “consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.” It is noted in passing that the latter two types of “indiscriminate attack” are surrounded by somewhat greater doubt than is the first one.

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Somewhere between these two extreme positions we must find the dividing-line separating acceptable losses among the civilian population or damage to civilian objects from unacceptable ones, and, with that, permissible attacks on military objectives from those that are prohibited. The concept that comes to mind here is that of proportionality between civilian losses and military advantage; an attack which entails no more than proportionate civilian loss would then be permissible, whereas an attack causing disproportionate civilian loss would be prohibited. Indeed, a rule to this effect may be taken to belong to the body of customary law of armed conflict. Yet, its inclusion among the rules in Protocol I for the protection of the civilian population did not go unopposed, and in effect, the terms “proportionate” or “disproportionate” do not figure in the text as ultimately adopted. Opposition on principle to the very concept of proportionality had been raised from the outset by the Romanian delegation, which maintained that there could never be any justification for civilian losses resulting from attacks on military objectives. This view mustered almost no support; in a separate vote, requested by the Romanian delegate in Committee III, on a text containing the principle of proportionality, the phrase was retained by 56 votes to 6, with 3 abstentions. On the other hand, as noted a moment ago, neither “proportionate” nor “disproportionate” is used in the text of Protocol I. Instead, the concept of “excessive civilian loss” finally emerged as an alternative acceptable to the great majority of delegations. This concept has found a place in two Articles of Part IV. First, according to Article 51(5) (b), an attack is to be “considered as indiscriminate” when it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Secondly, Article 57(2) enjoins “those who plan or decide upon an attack” to “refrain from deciding to launch” the attack whenever it “may be expected to cause” such excessive loss, injury or damage, and it goes on to require that “an attack shall be can-

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CDDH/III/SR. 21, 17 Feb. 1975, para. 91: Mr. Reed (USA): “As to the principle of proportionality, the aim was to draft a rule which was in his view already established by custom and in practice … The rule already existed, and it must be explicitly codified in the documents designed to ensure the protection of the civilian population and civilian objects.” Ibid., para. 11: Mr. Cretu; and see, for the attitude of the Romanian delegation at the time of the experts’ conferences, 3 NYIL (1972) p. 18, at pp. 39-40. CDDH/III/SR. 31, 14 March 1975, para. 31; in a subsequent explanation of vote, Mr. Cristescu (Romania) fulminated once more against the principle of proportionality which, as he explained at length, “his delegation had always opposed”, and it “was contrary not only to humanitarian principles but to the general principles of international law”; ibid., para. 42. CDDH/215/Rev. 1: Report of Committee III, 2nd session, para. 97.

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celled or suspended if it becomes apparent” that the attack “may be expected to cause” such excessive civilian loss (etc.). These are interesting formulations, which deserve some comment. First, “excessive” is no more a mathematically precise element in these tests than would have been the word “disproportionate”, and those called upon to apply the tests in practice may predictably be tempted to place a subjective interpretation on the term. Evidently, this works both ways: the party suffering an attack will perhaps too readily denounce it as excessively injurious to the civilian population and, hence, indiscriminate, whereas the attacking party may be too readily inclined to assume that no excessive damage to the civilian population could be expected. In such a dispute, it will be important to bear in mind that the norm set forth in Articles 51 and 57 refers to expected rather than actual civilian loss; thus, even though ex posteriori the losses which an attack has caused among the civilian population may appear excessive in relation to the military advantage actually achieved, it will not represent an indiscriminate attack if no such excessive losses were to be expected (or if, which amounts to the same thing, the military advantage anticipated was far greater than that actually achieved). While the phrases “expected” civilian loss and “anticipated” military advantage may seem to favour the attacking side, further elements in the formula operate to counterbalance this ostensible bias and place beyond doubt that the formula is actually far from according the attacker discretionary power to decide whether a planned attack will be discriminate or not. A first counter-balancing element lies in the requirement that, rather than some hypothetical or long-term military advantage, only the concrete and direct military advantage anticipated by the attacker may be taken into consideration. Then, the test is not whether “those who plan, decide upon, or execute an attack” expect it to cause excessive civilian loss, but whether it may be expected to cause such excessive loss. The last-mentioned element in the norm is of particular importance, as may be evident from the following quotation. The Head of the United Kingdom delegation to the Conference, Mr. Freeland, in explaining in Plenary why his delegation had voted in favour of Article 46 (subsequently renumbered as 51), stated that “military commanders and others responsible for planning, initiating or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.” This may seem a truism; indeed, as a statement of plain fact it could hardly be otherwise. However, military commanders remain fallible human beings who can err in their judgment. If they do err in their assessment of the available information (for instance, by discounting too lightly certain indications that the military objective they are planning to attack is really of far less “concrete and direct” importance than other information has led them to believe), this error in judgment is their responsibility, and they cannot absolve themselves by saying that 83

CDDH/SR. 41, 26 May 1977, para. 121 (italics supplied).

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“on the basis of their assessment of all the information available” the attack was not expected to cause excessive loss. Then, what is to be understood by “available information”? The case comes to mind of the American submarine, the Queenfish, which on 1 April 1945 torpedoed the Japanese cartelship Awa Maru. This ship had completed a voyage to Hong Kong, Singapore and other ports on the Asian continent, carrying relief goods supplied by the United States and destined for American and other Allied prisoners in Japanese hands; at the time of the incident she was on her return voyage to Japan, always sailing under a safe conduct granted by the United States. Apparently, the commanding officer of the Queenfish had been unaware of the safe conduct granted to the Awa Maru. For this lack of awareness he was subsequently relieved of his command and court-martialled. Information concerning the voyage of the Awa Maru under safe conduct had been received on board the Queenfish in time but had failed to reach him, owing to inefficiency in the internal procedures on board his ship for which he, as commanding officer, was held responsible. This appears to be a correct interpretation of the concept of command responsibility. Applied to the question posed above, it means that information relevant to the assessment of expected civilian loss is “available” not only when it has actually reached the military commander or other person “responsible for planning, initiating or executing” an attack, but equally when that person’s lack of knowledge about information available within his unit is due to circumstances for which he is personally responsible. The present author would go one step further and consider an attack as indiscriminate if information leading to that conclusion, although not in fact available within the unit concerned, could have been available but was not, because the military commander neglected to take the necessary steps to acquire it. It is contended that such an extension of “information available” to the information that ought to have been available is, indeed, implied in the notion of an attack which may be expected to cause excessive civilian loss. After all, the purpose of Articles 51 and 57 is not to provide a factual description of the military decisionmaking process; rather, they set out an objective standard for the judgment of military behaviour in carrying out attacks on military objectives involving the risk of excessive injury to the civilian population. Apart from this standard for distinguishing discriminate attacks from those that are considered as indiscriminate, Article 57 in particular contains further safeguards for the protection of the civilian population. Sub-paragraph 2(a) requires “those who plan or decide upon an attack” to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the 84

See, e.g., US Naval War College, International Law Studies 1966; W.T. Mallison, Jr., Studies in the Law of Naval Warfare: Submarines in General and Limited Wars (1968) p. 126.

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meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them.” This requirement indirectly corroborates the point made above concerning the need to assemble all available information about the risks incurred by the civilian population. Under the same sub-paragraph, the military planners and decision-makers are required to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” This duty to avoid or at least minimize civilian loss in effect precedes the obligation, discussed above, to “refrain from deciding to launch” an attack which may be expected to cause excessive civilian loss, and to cancel or suspend the attack even after it has been decided upon, if at that later stage it becomes apparent that it may be expected to cause such excessive civilian loss. On top of all this, Article 57 requires the attacker to give “effective advance warning … of attacks which may affect the civilian population, unless circumstances do not permit” (para. 2(c) – a clause fatally weakened by the exception at the tail) as well as, “when a choice is possible between several military objectives for obtaining a similar military advantage”, to select the objective the attack on which may be expected to cause the least danger to civilian lives and to civilian objects (para. 3). In sum: indiscriminate attacks are prohibited; these comprise, first and foremost, those attacks which do not even attempt to distinguish between civilian populations and military objectives and which, hence, are in flagrant violation of the basic requirement to take, in the conduct of military operations, constant care to spare the civilian population, civilians and civilian objects. From this basic requirement follow the duties of verification and of totally avoiding, or in any event minimizing, incidental civilian loss. Only after this follows, as a last resort, the standard of excessive civilian loss, setting the borderline between attacks that will have to be considered as indiscriminate and those barely escaping that qualification. Especially the latter rule cannot and should not be understood as a license to cause civilian loss precisely up to that limit. Indeed, paragraph 5 of Article 57 goes to the length of placing this beyond question: “No provision of this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects”.

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For that reason, the Romanian delegates to the Conference of Government Experts had proposed to delete a similar clause contained in the ICRC draft text; see 3 NYIL (1972), at p. 40. As far as the records of the Diplomatic Conference show, the Romanians this time did not repeat their suggestion. “The so-called rule of proportionality in para. 2(a)iii was found ultimately to be acceptable when it was preceded by para. 2(a)i and para. 2(a)ii which prescribe additional precautions and are phrased in terms of losses ‘excessive in relation to the concrete and direct military advantage anticipated’, and was supplemented by para. 5

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There is, of course, another side to the matter. Taking into account the many precautions which an attacker is required to take in order to minimize civilian loss, it seems only reasonable to expect that certain precautions will be taken on the other side as well. After all, if all important military objectives were located amidst the civilian population, and if that population were not to budge an inch even after having been warned of imminent attacks on specified military objectives, it might become extremely hard for the attacker to refrain from carrying out attacks whenever excessive civilian loss may be expected. Accordingly, Article 58 lays a duty on “the Parties to the conflict” to take certain “precautions against the effects of attacks” (as the Article is entitled). The available precautions are few and not difficult to conceive: to remove the civilian population from the vicinity of military objectives or, alternatively, to avoid locating military objectives amidst the civilian population; to provide the civilian population with shelter against the effects of attacks; and to have an effective civil defence organization. Advisable though each of these precautions may be, one hundred per cent realization will often be beyond the powers of a “Party to the conflict”. Taking this into account, Article 58 at the outset lays no further obligation on the “Parties to the conflict” than to take precautions “to the maximum extent feasible.” Apart from this general restriction, further qualifications are attached to the former two precautions mentioned; the Parties concerned need only “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives” and they only need to “avoid locating military objectives within or near densely populated areas.” (italics supplied) As for the latter two precautions mentioned above, these are not further specified; Article 58 states in quite general terms that the Parties to the conflict shall, always “to the maximum extent feasible”, “take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations”. It should be emphasized that the above “precautions against the effects of attacks” have not been introduced to facilitate military operations. Rather, they are intended to reduce the risks incurred by the civilian population as a result of military operations that will be carried out anyway. Evidently, in certain situations the “maximum extent feasible” will not amount to very much, and certainly not to an effective protection of the civilian population. Thus, in highly industrialized, densely populated Western Europe an effective separation of the civilian population and military objectives may be extremely hard to achieve and, at times, even be wholly impracticable. In such a situation, it is important to realize that Article 57 continues to apply with full vigour; in particular, those wishing to attack military objectives located in such an area will have to “do everything feasible” to verify that the targets selected are military objectives and to avoid or to make clear that it may not be construed as authorization for attacks against civilians.” CDDH/215/Rev. 1, Report of Committee III, 2nd session, para. 97.

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at any rate minimize civilian loss; their obligation to refrain from indiscriminate attacks (including those that “may be expected to cause” excessive civilian loss) remains as absolute as ever. Indeed, Article 57 continues to apply even in the event that the “presence or movements of the civilian population or individual civilians” is deliberately “used to render certain points or areas immune from military operations.” Article 51(7) forbids the Parties to the conflict so to use the civilian population, “in particular in attempts to shield military objectives from attacks” (the tanks parked close to the houses in the village street) “or to shield, favour or impede military operations” (the retreating army intermingling with the stream of refugees on the road; the numerous civilian employees not removed from the premises of an arms factory threatened with attack). The paragraph even makes a point of adding, in a second sentence, that the Parties to the conflict “shall not direct the movement of the civilian population or individual civilians” in order to achieve such purposes. Now, supposing that a Party to the conflict does make such prohibited use of the presence or movements of the civilian population, or does direct their movement in such a prohibited manner, the argument might be imagined that any resultant civilian loss is that Party’s exclusive responsibility and that the other side is, therefore, no longer obliged to spare the civilian population. This line of argument is expressly excluded however by Article 51(8) which prescribes that “[a]ny violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided in Article 57.” The above exposé, lengthy though it is, does not exhaust the subject of the general protection of the civilian population against the effects of hostilities in Protocol I. Yet it may suffice to demonstrate that the prohibition of indiscriminate attacks and, in close connection therewith, the provisions on precautionary measures represent a particularly complicated set of rules. Not surprisingly, while some delegations at the Conference hailed these rules as a major contribution to the protection of the civilian population, other delegations were less enthusiastic. Most outspokenly critical was the Head of the French delegation, Mr. Paolini: although he had “no fundamental objection to the principle of the prohibition of indiscriminatory attacks in order to protect the civilian population”, he considered that the provisions elaborating this principle “by their very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the exercise of the inherent right of legitimate defence recognized in Article 51 of the Charter of the United Nations.” Some other delega87

CDDH/SR. 41, para. 111. Mr. Paolini gave some examples which, he felt, supported his contention, and he repeated once again that the provisions at issue “went beyond [their] humanitarian aim and [were] likely seriously to impair the inherent right of legitimate defence”; ibid., paras. 111-116. – The French posture with respect to rules in the Protocol which “went beyond the strict confines of humanitarian law and in fact regulated the law of war” was mentioned earlier in section I of this paper.

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tions echoed this fear of an adverse impact on national defence; however, none of them went to the length of casting their vote against Article 46 (51 in the final version), thus leaving France alone in its negative vote. While the French were logical in voting against an Article the implications of which for national defence they saw reason to fear, the delegation of Romania, the all-time champion of near-absolute protection of the civilian population, took a different line. After expressing “its satisfaction at the inclusion of such an article in Protocol I”, it explained that “humanitarian law must develop in the context of present-day international law, which prohibits the threat or use of force, and likewise prohibits aggression.” On the other hand, the UN Charter affirms the right of self-defence, and, the delegation stated, “it is accordingly obvious that, when confronted with an incident of exceptional seriousness such as aggression directed against a foreign territory or its occupation, international law cannot restrict the legitimate right of a victim of aggression to defend himself.” This is tantamount to saying that, while the aggressor will be bound to respect the rules relating to the protection of the civilian population, the victim of aggression need not do so. Regrettably, the Romanian delegation did-not indicate which rules of Article 51 its country would feel free to derogate from if it were to become the victim of aggression. Actually, only two things come to mind: within its own territory, the party attacked may choose to disregard paragraph 7 on the “presence or movements of the civilian population or individual civilians” – greatly to the detriment of those civilians, as such a policy will considerably reduce the scope of “feasible precautions” which the attacking side is obliged to take under Article 57(2). Alternatively, the Romanians might have been thinking of counter-attacks on the territory of the aggressor, and might wish to claim for that event the right to set aside all the rules for the protection of the aggressor’s civilian population. Quite apart from the risk that the aggressor might decide to retaliate in kind (this notwithstanding the express prohibition of reprisals in Art. 51(6)), the whole argument, based as it is on “the need to draw a very clear distinction between the aggressor and the victim of aggression”, is really out of place in the context of humanitarian law and, indeed, in flat contradiction to its most elementary principles.

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89 90 91

Supra, text at note 76. Delegations recording their concern over the possible implications for national defence included Afghanistan, Cameroon and Colombia; CDDH/ SR. 41, 26 May 1977. Ibid., Annex. Loc. cit. See for this question and the Romanian attitude already 3 NYIL (1972) at pp. 54-55.

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Protection of Specific Objects

Article 52, on “general protection of civilian objects”, is followed by some articles that deal with a diversity of specific objects: Article 53, Protection of cultural objects and places of worship; Article 54, Protection of objects indispensable to the survival of the civilian population; Article 55, Protection of the natural environment; Article 56, Protection of works and installations containing dangerous forces. As may be evident from their headings, these articles are a mixed bag, with as only common feature that the objects or values singled out were apparently regarded as of special importance in the context of the protection of the civilian population. According to Article 53, “it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals.” It addresses a question which had been dealt with earlier as well. As long ago as 1874, the authors of the Declaration of Brussels stipulated that in sieges and bombardments “all necessary steps must be taken to spare, as far as possible, buildings dedicated to art, science, or charitable purposes” (etc.); in 1899, buildings dedicated to religion were added to this list and, in 1907, historic monuments. It is generally agreed, and has been authoritatively held by the International Military Tribunal of Nuremberg, that the Hague Regulations of 1899/1907, which incorporate this position, by 1939 had become part of customary international law. On comparison, the new rule in Article 53 lays down a more stringent obligation (not to “commit any acts of hostility”, as compared to the duty to “spare as much as possible”). On the other hand, the scope of the old rule is wider in that it is not confined to objects “which constitute the cultural or spiritual heritage of peoples.” Accordingly, several Western delegations in explaining their vote on the Article expressed their understanding that the new rule is, in the words of the US delegation, “not intended to replace the existing customary law prohibitions reflected in Article 27 of the 1907 Hague Regulations respecting the Laws and Customs of War on Land protecting a variety of cultural and religious objects.” Rather, the US delegation went on to explain: “the article establishes a special protection for a limited class of objects which because of their recognized importance constitute a part of the special heritage of mankind. Other monuments, works of art or places of worship which are not so recognized, none the less represent objects normally dedicated for civilian purposes and are therefore presumptively protected as civilian objects in accordance with the provisions of

92 93

Art. 17; Schindler & Toman, op. cit. note 21, p. 29. Art. 27 of the Hague Regulations Respecting the Laws and Customs of War on Land; ibid., p. 78.

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Article [52].” Indeed, these other cultural objects, although not protected from “any acts of hostility under Article 53”, share in the protection, not only of Article 52, prohibiting the making of civilian objects “the object of attack or of reprisals”, but also of Articles 51 and 57 prohibiting indiscriminate attacks and prescribing precautions in attack. Article 53(b), as quoted above, prohibits the use of the objects enumerated in para. (a) “in support of the military effort.” This is the price which has to be paid for the protection granted under (a); indeed, use of such objects “in support of the military effort” would be clearly incompatible with an obligation upon the adversary to respect them. The Western delegations mentioned above made this point when they expressed their understanding that, should such objects be used in support of the military effort, they would lose the special protection of this Article. Obviously, the question of whether these objects may then be attacked will depend on whether they constitute a “military objective” as defined in paragraph 2 of Article 52. Once again, in order to be so qualified, the objects need to “make an effective contribution to military action” and their “total or partial destruction, capture or neutralization, in the circumstances ruling at the time, [must offer] a definite military advantage”; these are far more stringent conditions than merely that the objects are used “in support of the military effort”. In contrast with Article 27 of the 1907 Hague Regulations, Article 53 of Protocol I does not require any marking of the objects it protects. In other respects as well, the Article contains no more than a statement of principle leaving open all the questions which would arise if it were to be applied in practice. While from this point of view the Article is most imperfect, it may even be regarded as redundant in view of the existence of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 14 May 1954 and in force since 7 August 1956, which provides an elaborate and carefully balanced system of protection for objects constituting “cultural property” as defined in Article 1 of that Convention. Article 53 in its opening sentence 94 95 96

CDDH/SR. 42, 27 May 1977, Annex. Ibid. “For the purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-para, (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-para, (a); (c) centres containing a large amount of cultural property as defined in sub-para, (a) and (b), to be known as ‘centres containing monuments’.” – The Convention provides

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explicitly refers to the Hague Convention, stating that it is “without prejudice to the provisions” of that Convention (as well as “of other relevant international instruments” – such as the Hague Regulations). Obviously, for Article 53 to be really redundant, all potential Parties to Protocol I would have to be Parties to the 1954 Hague Convention; regrettably, this is not the case: according to the latest information available, 66 states have ratified or acceded to the Convention. This leaves room for Article 53, although it would be vastly preferable if all States become Parties to the far more perfect Hague Convention. Indeed, this point is made express in Resolution 20 adopted by the Diplomatic Conference, which in its operational paragraph “Urges states which have not yet done so to become Parties to the aforementioned Convention”. Article 54, the next in the list, provides yet another excellent example of an important principle being elaborated into a detailed set of rules so complicated that they cannot, without further instructions, be applied by the soldier in the field. The principle, set out in paragraph 1, is that “[starvation of civilians as a method of warfare is prohibited”. As with other principles in Part IV of Protocol I, this principle is a logical consequence of the basic notion of “respect for and protection of the civilian population” in Article 48 and the ensuing principle of “general protection of the civilian population against dangers arising from military operations” (Art. 51(1)). Yet, the fact that it was expressly enunciated in Article 54 can be considered, as the Report of Committee III states, as “an important addition to the law protecting civilians.” Even though the principle does not purport to change the law of naval blockade, it affects both the power of belligerents to attack “objects indispensable to the survival of the civilian population” (the subject-matter of the remaining paragraphs of Art. 54) and their obligations in respect of relief actions in favour of the civilian population (Articles 68-71). In drafting specific rules on the protection of “objects indispensable to the survival of the civilian population”, the main problem seems to be to determine what objects fall under this heading. Yet, paragraph 2 of Article 54 actually leaves two systems: one of general protection, applicable to all objects falling under the definition of “cultural property”, and one of special protection for especially selected objects meeting the very severe requirements set out for that purpose. For text, see Schindler & Toman, op. cit. note 21, p. 525 et seq. 97 Information supplied on 25 July 1978 by the Treaties Department of the Netherlands Ministry for Foreign Affairs. 98 Adopted over the objections of Sri Lanka and Syria, in the 55th plenary meeting, on 7 June 1977, by 53 votes to none, with 33 abstentions; CDDH/SR. 55, paras. 4-22. 99 CDDH/215/Rev. 1, para. 73. 100 This is made clear in Art. 49(3), stating that the provisions of Part IV, Section I of the Protocol, while applying “to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land … do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.”

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this problem unresolved; it prohibits “to attack, destroy, remove or render useless” such objects, merely following this up with a non-exhaustive list of specific objects exemplifying the general notion. Although the list appears to be fairly complete, the possibility remains that other objects beside those enumerated may be claimed to be “indispensable to the survival of the civilian population” and hence, entitled to protection under paragraph 2. It is clear at a glance that the protection afforded these objects can never be absolute; the destruction of an “agricultural area for the production of foodstuffs” can be an unavoidable accident of war, and there is no valid reason why a belligerent would be required to respect the drinking water installation supplying a military base of the adversary. Accordingly, paragraphs 2 and 3 limit the scope of the protection in a number of ways. First, the act of “attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population” is prohibited only if it is performed “for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party.” The same act will not be prohibited when it is carried out for another purpose; examples given in the Report of Committee III are “bombarding an area to prevent the advance through it of an enemy … whether or not the area produces food”, and “destroying a field of crops in order to clear a field for fire or to prevent the enemy from using it for cover.” On the other hand, while the purpose of the act must be to deny the objects concerned “for their sustenance value” to the civilian population or to the adverse Party, the motive behind the act is expressly stated to be irrelevant. One might have done without this concluding part of the sentence; at all events, as the Report dryly comments, the effect of it is that “the sentence does not read easily.” Secondly, paragraph 3 of Article 54 exempts from the protection afforded by paragraph 2 certain of the objects covered by that paragraph, and this on account of the use to which the adverse Party puts them. Mention is made of use “(a) as sustenance solely for the members of its armed forces”; the Report adds that only those objects are intended here which clearly are so assigned. While this is a fairly clear-cut provision, sub-paragraph (b) can hardly be so qualified; it excludes from the protection of paragraph 2 objects which are used:

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The list in para. 2 includes “foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.” 102 CDDH/215/Rev. 1, para. 74. 103 Ibid., para. 75. 104 Ibid., para. 76.

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It is to be feared that those called upon to apply this provision in practice may experience some difficulty in appreciating, first, the subtle difference between “sustenance solely for enemy combatants” and “direct support of military action.” Once accepting that the latter concept evidently must be the wider of the two, they will search in vain for an indication how much wider it is: what is “military action”, when is support “direct”? Supposing that they have cleared this hurdle they will next have to form an estimate of the food situation on the other side, and refrain from actions against given objects, even though these are used “in direct support of military action”, if the actions concerned “may be expected” (not to leave the civilian population without food or water, but) “to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.” When may a civilian population be expected to begin to starve, when will it find itself forced to move by the lack of food or water? The answer to these questions will depend in large measure on that population’s capacity to endure – not an easy factor for the adversary to assess. The only help he gets from the records is the statement in the Report that the term “civilian population” in this sub-paragraph “was not intended to mean the civilian population of a country as a whole, but rather of an immediate area, although the size of the area was not defined.” Small help! While paragraph 4 adds to the protection of “these objects” (presumably those “indispensable to the survival of the civilian population” as defined in paragraph 2, rather than those exempted from protection under paragraph 3) by stating that they shall not be made “the object of reprisals”, paragraph 5 permits a Party to the conflict, “[i]n recognition of [its] vital requirements … in the defence of its national territory against invasion”, to derogate from the prohibitions to destroy, remove or render useless, “within such territory under its own control”, objects indispensable to the survival of its civilian population “where required by imperative military necessity.” This bow to the requirements of national defence, which permits the national authorities to apply a “scorched earth” policy when they consider this an “imperative military necessity”, cannot have failed to please the French and other staunch defenders of the right of self-defence as a limit to the applicability of humanitarian law. At all events, neither France nor any other delegation requested a vote on this Article or any of its paragraphs in Plenary;

105

Loc. cit.

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the Article was adopted by consensus and without so much as a word of comment. Protection of the natural environment, the subject-matter of Article 55, has not until fairly recently attracted the attention of lawmakers in the field of humanitarian law applicable in armed conflicts. Obviously, the war in Vietnam has contributed significantly to arousing this interest, as in that of protection of “objects indispensable to the survival of the civilian population.” In effect, although the two subjects do not coincide entirely, they are certainly closely connected. Interest in protection of the natural environment in the context of the development of humanitarian law had already become apparent at the stage of the Conference of Government Experts preceding the Diplomatic Conference. At the time, this interest was displayed solely by some few East European delegations, while the more numerous West European group remained utterly silent on the subject. Perhaps because of this lack of interest on the Western side, the ICRC, in drafting the Protocols it submitted to the Diplomatic Conference, omitted any reference to the question. This was not to be the last of it, however. Already at the first (1974) session of the Conference, in the course of the general debate in Plenary, the matter was taken up by several speakers, among them the Head of the Australian delegation, Mr. Mahoney. His country was thus the first among the group of the “Western and other countries” (although at the time a very leftist member of the group) to take the question seriously. Mr. Mahoney

106 CDDH/SR. 42, 27 May 1977, para. 19. – When the draft Article was initially discussed in Committee III, the French delegate, Mr. Bretton, did not refer to the possible national defence aspects of the proposed text; in contrast, Mr. Blix (Sweden), who could never be accused of taking too much account of the needs of national defence, nonetheless expressed his delegation’s understanding of “a scorched-earth policy which was used to stop enemies invading a Party’s own territory. That was a deep-rooted practice which should be taken into account.” CDDH/III/SR. 17, 11 Feb. 1975, para. 19. 107 ICRC, Report on the Work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, second session, 3 May - 3 June 1972 (1972), vol. I, para. 3.19; vol. II, documents: CE/ COM III/C 2 (Poland), CE/COM III/C 6 (Czechoslovakia, German Democratic Republic, Hungary), CE/COM III/C 68-69 (Bulgaria, Czechoslovakia, German Democratic Republic, Hungary, Poland). The last-mentioned proposal, merging the two earlier proposals, proposed a prohibition “to use means and methods [of combat] which destroy the natural human environmental conditions.” At the XXIInd International Conference of the Red Cross, Teheran, Nov. 1973, the Government delegations of Czechoslovakia, the German Democratic Republic and Hungary reiterated their suggestion, proposing to include “the salubrity and balance of the natural environment” in the draft article on protection of objects indispensable to the survival of the civilian population; ICRC, Report on the Study by the XXIInd International Conference of the Red Cross of the Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (1974), para. 53 and Annexes, Part I, DH/4/Corr.6.

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even announced his delegation’s plan to “suggest the insertion in the Protocols of a new article seeking to prohibit ecological damage as a technique of war.” What at that stage could have been regarded as no more than a trickle of interest, by the time of the second session of the Conference, in 1975, had broadened into a stream of opinion. This became apparent in Committee III, where numerous speakers referred to the need to do something about the protection of the natural environment, whether on its own merits or because of its close connection with the protection of the civilian population. This difference in point of view led to two distinct sets of proposals, one seeking to introduce the principle of protection of the natural environment into Part III, Section I on “Methods and means of warfare”, and the other to do the same in Chapter III (“Civilian objects”) of Part IV of Protocol I. Both approaches were honoured in the end, with the first one resulting in the addition of a clause containing the principle as paragraph 3 of Article 35 (“Basic rules”), and the second one in the adoption of Article 55 as a separate article in Chapter III. Article 55 states the principle first: “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage.” An obvious comment is that warfare cannot fail to do damage to the natural environment, so that it becomes all-important to know when damage must be deemed to be “widespread, long-term and severe.” The Report of Committee III provides some indication of what participants in the discussion understood by these terms, and notably by the adjective “long-term”. The element of time this represented “was considered by some to be measured in decades”; some referred to “twenty or thirty years … as being a minimum”. However, the Report cautions, “it is impossible to say with certainty what period of time might be involved.” It then goes on to relate as “a widely shared assumption” in the Committee “that battlefield damage incidental to conventional warfare would not normally be proscribed by this provision.” This already provides a fairly clear picture; first, belligerents can continue to wage “conventional warfare” (including artillery bombardment with its attendant disturbance of the ecosystem) without fear of violating the principle of protection of the natural environment. Such fear they need to harbour solely when they have recourse to rather less conventional modes of warfare, such as the use of her108 CDDH/SR. 14, 7 March 1974, para. 42. For other speakers on the question, see: CDDH/SR. 11, 5 March 1974, para. 22 (Yugoslavia), CDDH/SR. 12, 6 March 1974, para. 23 (USSR) and CDDH/SR. 13, 6 March 1974, para. 61 (Czechoslovakia). 109 See infra section IV. 110 There was no very clear idea at the Conference what was to be understood by “natural environment”, “ecological balance”, “stability of the ecosystem” etc. Rather, the Conference started from the premise that “the natural environment” was a value worth being protected against intolerable damage, and left it at that. 111 CDDH/215/Rev. 1, para. 27. See also the Rapporteur’s more detailed Report to Committee III on the work of the Working Group, CDDH/III/275 + Corr. 1.

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bicides or other methods or means specifically designed to damage the environment; even then, the protection afforded to the environment remains restricted to really serious forms of large-scale damage, meeting the requirements of being “widespread, long-term and severe.” It seems clear, therefore, that the man in the field will not easily come into conflict with this provision; rather, it is addressed at higher levels of authority where the major decisions about the use of particular means and methods of warfare are taken. This view of the scope of the principle finds corroboration in a sentence following the one quoted above. It lays down that the protection afforded in the first sentence “includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” It should be noted that besides intention, the concept of objective expectation (“may be expected”) is once again utilized. Since only long-term damage is envisaged here, “health” and “survival” should be taken in the sense of future health or survival. As the Report notes: “The word ‘population’ was used without the usual adjective ‘civilian’ because it was thought that the future survival is that of the population in general, without regard to combatant status.” As to “health”, this “was used in a broad sense in connexion with survival to indicate actions which could be expected to cause such severe effects that, even if the population survived, it would have serious health problems, such as congenital defects which produced deformed or degenerate persons.” So as to forestall any possible misunderstandings concerning the scope of the Article, the Report notes in conclusion that “[t]emporary or short-term effects were not contemplated within the prohibitions of this article.” 112

Ibid., para. 82. – Even before Article 55 was drafted in Committee III (during the 1975 session of the Conference) the “dangers of the use of environmental modification techniques for military purposes” had been brought to the attention of the international community in a joint Nixon/Breznjew statement, signed at Moscow on 3 July 1974 and in which it was recognized “that such use could have widespread, long-lasting, and severe effects harmful to human welfare.”. In the 1977 Convention on Geophysical Warfare which eventually emerged from this initiative, the main element is a prohibition “to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party” (Art. I(1)). Apart from the non-cumulative character of the list of possible effects in the lastquoted phrase, it is interesting to note that a completely different interpretation is placed on the key term “long-lasting” in this Article than on “long-term” in Article 55 of Protocol I. According to an “understanding” arrived at in the CCD (though not attached as an annex to the Convention) effects will be long-lasting when they last “for a period of months, or approximately a season.” “Widespread”, on the other hand, is understood as “encompassing an area on the scale of several hundred square kilometres” – a scale that need not have been attained to render Art. 55 applicable. Indeed, both the “understanding” and, from the opposite angle, the statements of several participants in the Diplomatic Conference made clear that the interpretation

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For completeness’ sake, it should be mentioned that “attacks against the natural environment by way of reprisals” are prohibited under paragraph 2 of Article 55. If ever a convincing illustration were needed of the thesis that belligerent reprisals tend to hit the innocent, this paragraph could provide the best one imaginable; can anything be more completely and absolutely innocent of the wrongdoings of man than his natural environment? Of far greater immediate importance to the military man is Article 56 on “Protection of works and installations containing dangerous forces,” Not that the Article will be easy to apply: on the contrary, it undoubtedly contains one of the most peculiar and complex sets of rules in the Protocol. At the outset of the first paragraph, the task of those called upon to apply the Article is considerably facilitated by a limitative list of objects qualifying as works or installations containing dangerous forces: “namely dams, dykes and nuclear electrical generating stations.” Evidently, dams and dykes are in one class, with water as the dangerous force they contain, while nuclear electrical generating stations constitute another, separate class of objects. As experience abundantly shows, the destruction of a dam or dyke can result in large-scale disaster, and although experience with respect to nuclear power stations is thus far lacking, the results of nuclear bomb tests (including the attacks on Hiroshima and Nagasaki) suggest that equally grave, if not worse results are to be expected in the event of such installations being made the object of deliberate destruction. Dams, dykes and nuclear power stations will often constitute civilian objects, as opposed to military objectives. They then are protected against direct attack under Article 52, and the particular danger to the civilian population that might be expected to ensue from an attack on a military objective in their vicinity would represent a weighty factor in determining whether, under the terms of Article 57, that attack “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Admittedly, this provides nothing like an absolute protection, and the possibility remains that destruction of the military objective is of such paramount importance that it is deemed to outweigh the expected incidental civilian loss, grave though it may be. This is where Article 56 intervenes, laying down as an objective standard in the second sentence of paragraph 1 that “military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.” Here,

placed upon the above terms in the context of one instrument were intended exclusively for that instrument and, as the “understanding” has it, were “not intended to prejudice the interpretation of the same or similar terms if used in connection with any other international agreement.”

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the qualification as “severe” of the expected losses among the civilian population takes the place of the relative standard of “excessive loss”. Important though this enhancement in the protection of a particularly dangerous category of civilian objects may be, it is of no more than secondary interest in Article 56. Of prime importance is the possibility that a dam, dyke or nuclear power station can, under the circumstances specified in Article 52(2) itself come to represent a military objective and, thus, in principle a legitimate object of attack. It is true that even in that event the “precautions in attack” of Article 57 will continue to apply; but if, say, a nuclear power station were to be used in such a manner that it thereby, in the terms of Article 52, makes “an effective contribution to military action” and if its “total or partial destruction” would, “in the circumstances ruling at the time”, offer “a definite military advantage”, that military advantage might at the same time be deemed to weigh so heavily that even considerable civilian loss might not be regarded as excessive. Here, the first sentence of Article 56(1), achieves the same as was explained a moment ago with respect to the second sentence: in identical terms, it lays down that objects of this category “shall not be made the object of attack, even when these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” Evidently, the “special protection” afforded under paragraph 1 to works or installations containing dangerous forces and to other military objectives located at or in the vicinity of these works or installations does not amount to unconditional immunity from attack. Rather, the protection remains dependent on whether the attack “may cause” the release of dangerous forces and consequent severe losses among the civilian population. It is worth noting, though, that the language used here is even more stringent than that used in Article 57; the test is not whether the attacker did expect, or on the basis of his information should have expected, the release of dangerous forces with their consequent civilian loss. Rather, the test seems to be whether, in the light of all information available at the time, these effects could objectively have been foreseen. Then, as noted above, severe civilian loss is an absolute standard as compared to the relative one of loss “excessive in relation to the concrete and direct military advantage anticipated.” As is the case with hospitals, so in this case too the special protection may be discontinued in certain circumstances. The conditions for such a discontinua113 114

See, too, concerning the meaning and interpretation of Art. 56(1): CDDH/215/ Rev. 1, paras. 85-87. Although Art. 19 of the First Geneva Convention of 1949 lays down in no uncertain terms that military hospitals and ambulances “may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict”, Art. 20 goes on to provide that the protection of these objects “shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.” The Article adds that protection “may, however, cease only after a due warning has

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tion of protection are listed in paragraph 2 of Article 56. Although basically the same for all categories of objects mentioned in paragraph 1, they have been spread over three sub-paragraphs so as to take account of the peculiarities of each of the categories concerned, viz., (a) dams and dykes, (b) nuclear electrical generating stations and (c) other military objectives located at or in the vicinity of objects of the two preceding types. Common elements in all three sub-paragraphs are that the object concerned must be used “in regular, significant and direct support of military operations” and, on top of this, attacking the object must be “the only feasible way to terminate such support.” As the Report of Committee III notes, the former of these two cumulative requirements represents a higher standard than the one used in Article 52(2), where it suffices for an object to make “an effective contribution to military action” for it to become a military objective. The Report continues: Without trying to define the phrase in [Article 56], it seems clear that production of arms, ammunition and military equipment would qualify as direct support of military operations, but the production of civilian goods which may also be used by the armed forces probably would not qualify in the absence of most unusual circumstances.

This quotation may serve to demonstrate once again how much easier it is to arrive at the definite conclusion that an object, or an activity, is militarily important than that it is not. This is not because the military mind would simply be unwilling to concede the point that given objects or activities are definitely of no military interest; there is no such thing as “the military mind”, nor is there any particular unwillingness among military men to concede the point at issue; at all events, the quoted words were written by a lawyer who has never in his life been a member of the armed forces: Mr. George Aldrich, Rapporteur of Committee III. Rather, the explanation should be sought in the regrettable, though unavoidable, complexity of the concepts at issue in this Part of Protocol I, whether it be “civilian object”, “military action or operation”, or any other. Differentiation among the three categories of objects mentioned above is made as follows: (a) a dam or dyke will lose its special protection “only if it is used for other that its normal function”, (b) a nuclear power plant “only if it provides electric power…” and (c) an “other military objective” only if it is “used…”; followed, in each case, by the formula: “in regular, significant and direct support of military operations.” While the requirements under (b) and (c) are clear enough,

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been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.” Identical provisions for the protection of civilian hospitals are found in Arts. 18 and 19 of the Fourth Geneva Convention of 1949. CDDH/215/Rev. 1, para. 91. Loc. cit.

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(a) is, as the Report of Committee III notes, “less clear than is desirable.” What is “the” normal function of a specific dam or dyke: is it merely, in the terms of the Report, “the function of holding back, or being ready to hold back, water” or does it encompass other functions which this particular dam or dyke in question has been designed to fulfil from the outset, such as carrying traffic across a river? Admittedly, the function described in the Report may be considered as the single common function of all dams and dykes, and Committee III in adopting the Report containing the quoted phrase may probably be taken to have understood the phrase “normal function” in that sense. Even then, it remains a regrettable fact that the Conference did not succeed in finding, as the Rapporteur of Committee III had hoped, a better and less ambiguous term. An interesting feature of the interpretation provided in the Report is that it does not stop at “holding back water” but adds in one breath: “being ready to hold back water”. This amounts to an implied recognition that even inner dykes fall under the protection of paragraph 1, i.e., protection against attack “if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” This condition, it is submitted, will be met for the inner dyke whenever it is fulfilled for the main dyke as well, as destruction of the one puts the civilian population as much in jeopardy as does destruction of the other. In its remaining paragraphs, Article 56: – reaffirms the right of “the civilian population and individual civilians … to all the protection accorded them by international law”, mentioning in particular the precautionary measures of Article 57 (para. 3); Ibid., para. 88. Loc. cit. On the occasion of the adoption by consensus of then Art. 49 (ultimately renumbered 56) Mr. Schutte, member of the Dutch delegation, emphasized that “[h]is delegation considered the interpretation of para. 2 of Art. 49 given by the Rapporteur … to be the correct one. Its support of the consensus on Art. 49 had been based on that assumption.” CDDH/III/SR. 31, 14 March 1975, para. 48; see too para. 46. 120 Loc. cit., note 116. 121 While para. 2 makes the cessation of special protection subject to the condition, inter alia, that an attack on the object “is the only feasible way to terminate” the “regular, significant and direct support of military operations” in which the object is being used, the second sentence of para. 3 adds that in the event of such attack “all practical precautions shall be taken to avoid the release of the dangerous forces.” In his report to Committee III, the Rapporteur hailed this provision as “one of the most important contributions of this article.” CDDH/III/264/Rev. 1 p. 6. Yet, the provision amounts to little more than an application to a specific case of the general obligation to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects” (Art. 57(2)(a)(ii)). In the Report of the Committee the eulogistic phrase of the Rapporteur is not found; the Report

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–

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Chapter 9 bans reprisals against any of the objects mentioned in paragraph 1 (para. 4); enjoins the Parties to the conflict to “endeavour to avoid locating any military objectives in the vicinity of the works or installations mentioned in paragraph I”, an exception being made for “installations erected for the sole purpose of defending the protected works or installations from attack” (para. 5); urges the Parties to the conflict “to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces” (para. 6), and introduces a special sign with which the Parties to the conflict may, if they so wish, mark the objects protected by this Article, in order thus to facilitate their identification (para. 7).

Had the Arab delegations had their way, the special protection of Article 56 would cover “oil rigs, petroleum storage facilities, and oil refineries” as well. As the

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does, however, reproduce the further comment of the Rapporteur that “[g]iven the array of arms available to modern armies, this requirement should provide real protection against the catastrophic release of these forces.” CDDH/215/Rev. 1, para. 92. One could hope that only “modern armies” would find themselves confronted with the need to attack “works or installations containing dangerous forces”; indeed, the arms trade of our days seems to do its utmost to convert more and more armies into “modern armies” equipped with an array of the most sophisticated weapons. These defensive installations “shall not themselves be made the object of attack, provided that they are not used in hostilities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weapons capable only of repelling hostile actions against the protected works or installations.” As the Report notes, this language is the outcome of “considerable discussion about the question of the types of armament to be permitted to the defensive installations,” It is submitted that the form of words ultimately accepted is far from providing a clear rule, nor is much clarification added by the concluding remark in the Report that “[t]hus, the use of weapons capable of attacking enemy forces passing at some distance from the protected work or installation is prohibited.” CDDH/215/Rev. 1, para. 93. At all events, the problem is on a completely different scale from that of the protection of military hospitals and ambulances. As provided in Art. 22 of the First Geneva Convention of 1949, the personnel of these establishments or units may be armed and use their arms in their own defence or in that of the wounded and sick in their charge, and in the absence of armed orderlies the establishment or unit may be protected by a picket or by sentries or by an escort. Para. 7 describes the special sign as “consisting of a group of three bright orange circles placed on the same axis”, referring for further specification to Art. 16 of Annex I to Protocol I. This Article provides, inter alia, that the sign shall be as large, and may be repeated as often, as appropriate under the circumstances; it should be visible from as many directions and from as far away as possible; it may be lighted or illuminated, and “may also be made of materials rendering it recognizable by technical means of detection.”

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Rapporteur notes in his report to Committee III, it was agreed in the Working Group “that these were not objects containing dangerous forces within the meaning of this article.” The proponents of this idea had earlier suggested that protection of the objects at issue could be achieved by including them among the “objects indispensable to the survival of the civilian population” of Article 54. Although no-one would of course deny the importance of oil, not only to the oil producing States but to “the whole international community, which depend[s] on oil in all spheres”, there was hardly any support for the suggestion that oil should be singled out for any form of special protection. The Rapporteur notes that he had “agreed to consult further with interested representatives on this question.” This he did, continuing his delicate negotiations with the “interested representatives” through the years that the Conference lasted. The final outcome of this debate is to be found in the Report of Committee III on its work during the fourth and last session of the Conference, where the fact is recorded that “a proposal concerning ‘General principles for the protection of oil and of installations for its extraction, storage, transport and refining’ … was withdrawn by its sponsors.” 3.4

Special Protection

As may be recalled, the above discussion of the “general protection of the civilian population” in Protocol I had as its point of departure the basic concept of respect and protection, translated right from the start into two somewhat less abstract, though still very fundamental principles: viz., the prohibition to make the civilian population, civilians or civilian objects the object of attack, and the obligation, in the conduct of military operations, to take constant care to spare the civilian population, civilians and civilian objects. From these basic tenets followed the whole intricate set of prescriptions examined above. It emerged that the protection they provide (at times in minute detail and with great subtlety of nuance, at other times in rather too vague and insufficiently precise terms) extends not only to the civilian population itself, but covers a wide range of objects and values, from houses and schools to the natural environment. Included among the protected objects are works or installations containing dangerous forces, even where these are military objectives, and other military objectives located at or in the vicinity of these works or installations; it was explained that in elaborating the idea of “general protection of the civilian population” the need had arisen to place these particular military objectives under special protection. 124 125 126 127 128

CDDH/III/264/Rev. 1 p. 6. CDDH/III/SR. 16, 10 Feb. 1975: Mr. El Ghonemy (Egypt). Loc. cit. Supra note 124. CDDH/407/Rev. 1, para. 12.

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There is, of course, nothing novel about the idea of special protection, even as applied to specified military objectives. While the basis of the idea – though not the term – can be found as early as the Geneva Convention of 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field, instances of persons or objects benefiting from a regime of special protection abound in the Geneva Conventions of 1949 as well as in the Hague Convention of 1954 for the Protection of Cultural Property. One rather imperfect example is provided by the “hospital and safety zones and localities” and “neutralized zones” provided for in Articles 14 and 15 of the Fourth or Civilians Convention of 1949. The imperfection of these provisions as well as of Article 25 of the Hague Regulations of 1907 prohibiting the “attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”, led the ICRC to include proposals for their improvement in its draft Additional Protocol I, as Chapter V (“Localities under special protection”) of Part IV on the “Civilian population”. Heavily amended, though not affected in their basic set-up, these proposals eventually became Articles 59 (“Non-defended localities”) and 60 (“Demilitarized zones”); together they form Chapter V, entitled “Localities and zones under special protection”. As explained at the outset of the introductory debate in Committee III by the ICRC representative, Mr. Mirimanoff-Chilikine, its proposals “had two purposes, first, to give absolute immunity to the civilian population against accidental or indirect effects of attacks directed at military objectives; and, secondly, to preserve the localities as such for the sake of their social, economic, cultural or scientific value.” Taking part in the same debate, Sir David Hughes-Morgan laid bare even deeper roots of the proposed Articles when he said that “[their] minimum aim … was to implement effectively the general rule of prohibiting attacks on civilians and civilian objects.” “Absolute immunity”, “effective protection from attack”: these are no small matters to achieve. Articles 59 and 60 seek to do this along the following lines. Article 59 spells out in its first paragraph that the Parties to the conflict may not “attack, by any means whatsoever, non-defended localities.” Though this language seems not to exclude localities situated in the hinterland even at a considerable distance from the combat zone, a much more restricted concept emerges from paragraph 2 where it is stated that “[t]he appropriate authorities of a Party to the 129 Both Articles were adopted by consensus in Committee III; CDDH/III/SR. 31, 14 March 1975, paras. 36, 37. 130 CDDH/III/SR. 23, 19 Feb. 1975, para. 3. 131 Ibid., para. 59; italics supplied. 132 There were some in Committee III “who wished to permit [non-defended localities] also in the hinterland”, as one among five tendencies that emerged with respect to the scope to be attributed to the concept under discussion; CDDH/215/Rev. 1, para. 108.

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conflict may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party.” (Italics supplied) This leads to a clearer picture: an “inhabited place” situated in a zone of combat may be either defended or not. If it is defended, it will represent an obstacle to the advancing enemy, which will then attempt to overcome the armed resistance with the means at its disposal; indeed, it may be expected to commence these endeavours while it is still at some distance from the locality, directing its artillery fire or attacks from the air at suspected points of resistance and other military objectives located in the locality. On the other hand, if the “inhabited place” is not defended, the advancing enemy will be able to occupy the place without a blow, and there is, hence, no need for it to direct any attacks at targets in the locality, not even those carried out in advance and from a distance in preparation of capture. The prohibition in Article 59(1) of attacks on non-defended localities is no more than the translation into a legal norm of this lack of military necessity. In conformity with this theoretical construct, the representatives of the ICRC and of the Federal Republic of Germany argued in Committee III that the mere absence of defence of a given locality establishes its protected status. Theory apart, the question arises how a belligerent Party is to know that an “inhabited place near or in a zone where ground forces are in contact”, but which he has not yet actually reached, is in fact non-defended: without such knowledge, he will almost certainly treat the locality as though it were defended. The only effective way seems to be the one suggested, though not prescribed, in paragraph 2: viz., an express declaration emanating from the “appropriate authorities” and 133

CDDH/III/SR. 23, 19 Feb. 1975, paras. 7, 37. The ICRC Commentary on the Draft Additional Protocols to the Geneva Conventions of 12 Aug. 1949, published in 1973, states that “[b]y virtue of customary international law, non-defended localities are protected once their specific de facto ‘non-defence’ situation is established … Thus any subsequent agreement concluded by the Parties to the conflict is of a purely declaratory nature and can only strengthen the protection already due. This is implied by the wording ‘to facilitate the observance of this rule’ [this being the opening phrase of para. 2 of the draft Article, providing the possibility of a declaration on the part of the interested Party to the conflict]. The status of non-defended localities may be confirmed in an unopposed unilateral declaration … or in a special agreement…” (pp. 68-69). Similarly, Mr. Mirimanoff-Chilikine explained in his introductory statement in Committee III that “[u]nder the customary international law codified at The Hague, non-defended localities acquired that status as soon as the de facto situation of ‘non-defence’ came into being. That de facto situation was now described in article 52, paras. 2 and 5.” Mr. Josephi, speaking for the FDR, stated that his delegation “supported the ICRC view” in this respect. Earlier, support for this view had been provided by Professor Knut Ipsen in his contribution “Die ‘offene Stadt’ und die Schutzzonen des Genfer Rechts”, in Dieter Fleck (ed.), Beiträge zur Weiterentwicklung des humanitären Völkerrechts für bewaffnete Konflikte (1973) pp. 149196, at p. 160.

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addressed to the adverse Party. Such a declaration, once again from the theoretical point of view, will indeed be declaratory rather than constitutive in character; in other words, the declaration cannot of itself confer protected status on a locality which is not, in point of fact, “non-defended”. Paragraph 2 specifies the conditions for a locality to qualify as a “non-defended locality”: (a) prior evacuation of “all combatants, as well as mobile weapons and mobile military equipment”; (b) “no hostile use … of fixed military installations or establishments;” (c) “no acts of hostility … [on the part of ] the authorities or … the population”, and (d) “no activities in support of military operations.” Once all these conditions fulfilled and a unilateral declaration affirming its non-defended character addressed to the adverse Party, the protected status of the locality is perfect; the declaration states an existing situation: it does not represent an offer to enter into an agreement. Accordingly, although paragraph 4 of Article 59 obliges the recipient Party to acknowledge receipt of the declaration, it also directly obliges that Party to “treat the locality as a non-defended locality.” The merely declaratory character of the declaration is evident from the text following the quoted phrase: the last-mentioned obligation exists “unless the conditions laid down in paragraph 2 are not in fact fulfilled.” For completeness’ sake, mention is made here of the possibility, set out in paragraphs 5 and 6, for the Parties to the conflict to “agree on the establishment of non-defended localities even if such localities do not fulfil the conditions laid down in paragraph 2”, as well as of the self-evident statement in paragraph 7 that “[a] locality loses its status as a non-defended locality when it ceases to fulfil the conditions laid down in paragraph 2 or in the agreement referred to in paragraph 5” – a statement that is followed by the useful reminder that the loss of special protection does not entail total lawlessness: on the contrary, “[i]n such an eventuality, the locality shall continue to enjoy the protection provided by the other

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Para. 3 makes an exception for “persons specially protected under the Conventions and this Protocol, and of police forces retained for the sole purpose of maintaining law and order.” Examples of persons in the first-mentioned category would be wounded or sick combatants; the police forces have been mentioned to permit the presence of military police and because in many countries the police form part of the armed forces. These military installations or establishments need not have been dismantled or otherwise rendered inoperative: it will be up to the adversary, once he has occupied the locality, to dispose of these objects as he sees fit. In that event, the recipient Party “shall immediately so inform the Party making the declaration.” The Article contains no special provisions concerning the modus procedendi in such an impasse; notably, there is nothing about the possibility of thirdparty verification in loco, which might be the only way to determine objectively whether all four conditions of para. 2 are, or are not, fulfilled. On the other hand, the closer a locality claimed to be non-defended is to the zone of actual combat, the more difficult would it be to organize such outside verification.

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provisions of this Protocol and the other rules of international law applicable in armed conflict.” In sum, the detailed and well-balanced provisions of Article 59 undeniably represent a major improvement over the summary statement in Article 25 of the Hague Regulations that “[t]he attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” While Article 59 rests on a fairly rigid concept (a situation of fact which, merely reaffirmed by a unilateral declaration notifying the fact, entails the protected status), Article 60 on “demilitarized zones” has been given the greatest possible flexibility. The starting-point of the Article, and at the same time the most striking contrast to the previous one, is that the status of demilitarized zones can solely be conferred by agreement, even, as paragraph 2 stipulates, express agreement; but the agreement may be concluded in any conceivable manner: “verbally or in writing, either directly or through a Protecting Power or any impartial humanitarian organization, and may consist of reciprocal and concordant declarations.” Demilitarized zones may not be attacked. This rule is so self-evident that it is not even spelled out in so many words in Article 60: it is in fact implicit in the general prohibition “for the Parties to the conflict to extend their military operations [to such zones], if such extension is contrary to the terms of the agreement” (para. 1). As the Report of Committee III explains, this text, like the Article in its entirety, “is intended to permit the establishment both of zones that must remain demilitarized no matter which party controls the area in which they are located and also zones that may lose their demilitarized character if occupied by the adverse Party.” This intention is also evident in paragraph 6, specifying that “[if ] the fighting draws near to a demilitarized zone, and if the Parties to the conflict have so agreed, none of them may use the zone for purposes related to the conduct of military operations or unilaterally revoke its status.” Although paragraph 3 provides a set of conditions that a demilitarized zone should normally fulfil, these conditions are not, as in the case of the non-defended locality of Article 59, obligatory in principle (nor, of course, does the fulfilment of the conditions by itself suffice to create the protected status). The opening phrase of the paragraph, stating that “[t]he subject of such an agreement shall normally be any zone which fulfils the following conditions …” was “inserted in paragraph 3 to permit the parties to agree upon zones which do not fulfil all the conditions of that paragraph.” Such agreement, the Report continues, “might be rare” but at all events “should not be discouraged by the text” of the Article. Like Article 59, Article 60 enumerates four conditions, with the first three being identical to those listed under (a)-(c) in Article 59. Only condition (d) is more stringent: while Article 59 merely excludes all “activities in support of mili137 138

CDDH/215/Rev. 1, para. 111. Loc. cit.

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tary operations”, paragraph 3 of Article 60 prescribes that “any activity linked to the military effort must have ceased.” As “the military effort” is a broad and altogether vague term (arguably, the activity of the lady who knits socks for the soldier at the front is “linked to the military effort”) the paragraph adds, not superfluously, that the Parties to the conflict “shall agree upon the interpretation to be given” to that particular condition. Conceivably, the Parties might agree to permit the activity of the aforementioned lady, to prohibit the production of armoured cars and even, probably, of ball-bearings and similar militarily important items, and to draw the line somewhere in between, depending on the local situation. Obviously, to achieve the desired protection, there should be no misunderstanding about the precise location of a demilitarized zone. Paragraph 2 of Article 60 accordingly suggests that the agreement establishing the zone “should define and describe, as precisely as possible, the limits of the demilitarized zone” and should also, “if necessary, lay down the methods of supervision.” Paragraph 5 provides that the Party in control shall mark the zone, “so far as possible, by such signs as may be agreed upon with the other Party”, and these signs “shall be displayed where they are clearly visible, especially on its perimeter and limits and on highways.” The consensual character of the demilitarized zone is emphasized once again in paragraph 7 of Article 60, according to which only “a material breach of the provisions of paragraphs 3 or 6” shall have the effect of releasing the other Party from its obligations under the agreement. As in paragraph 7 of Article 59, it is recalled that the loss of status does not deprive the zone of “the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict.” Lastly, as the Rapporteur noted in his introductory statement prior to the consensus adoption of Article 60, it was the title to be given to the zones in question, rather than the substance of the rules regulating their protected status, which had given rise to controversy in the Working Group. In his report on the work of the Working Group he mentions other terms which had been considered in the Group besides the one finally retained: “demilitarized zone”. He then permits himself the rare liberty of placing on record a jocular suggestion he had made in the course of the debate in the Working Group; the passage deserves to be quoted in full:

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The Parties shall also agree upon “persons to be admitted to the demilitarized zone other than those mentioned in paragraph 4”, the latter being the same categories of specially protected persons and police forces mentioned in Art. 59(3). 140 CDDH/III/SR. 31, 14 March 1975, para. 37. 141 CDDH/III/264/Rev. 1, p. 8.

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The Rapporteur even suggested the term, “civilized zone”, but his idea, not surprisingly, received no support. The negative implications for the rest of the world outside of these zones were too stark to be tolerable.

The passage gives some indication of the exasperation which Mr. Aldrich, even more than others, must have felt at times when the discussion dragged on about matters of terminology rather than substance. Regrettably though perhaps not surprisingly, the passage was not reproduced in the official Report of Committee III. Section I (“General protection against effects of hostilities”) of Part IV (“Civilian population”) contains one further lengthy Chapter, viz., Chapter VI on “Civil defence”. In view of the specialized character of the subject-matter dealt with in this Chapter, it may suffice to note here that Article 61 on “Definitions and scope” defines under (a) “civil defence” as “the performance of some or all of the undermentioned humanitarian tasks intended to protect the civilian population against the danger, and to help it recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival” (followed by an exhaustive enumeration of fifteen “tasks”) and, under (b), “civil defence organizations” as “those establishments and other units which are organized or authorized by the competent authorities of a Party to the conflict to perform any of the tasks mentioned under sub-paragraph (a), and which are assigned and devoted exclusively to such tasks.” The order of sub-paragraphs (a) and (b) is significant; it was only after protracted battle that the decision could be reached to mention civil defence as a conglomerate of tasks first, and to deal with civil defence organizations only afterwards and as a consequence of the tasks. It thus became possible to bring under the latter heading the great diversity of organizations, military, para-military or civilian and whether permanently or temporarily assigned to any of the above tasks, that characterizes the situation with respect to “civil defence” in the various countries represented at the Conference. Both civilian and military civil defence personnel “shall be respected and protected” to the extent feasible 142 It was, in point of fact, assigned not to Committee III but to Committee II, as the one in whose competence it most specifically lay. 143 Namely: “(i) warning; (ii) evacuation; (iii) management of shelters; (iv) management of blackout measures; (v) rescue; (vi) medical services, including first aid, and religious assistance; (vii) fire-fighting; (viii) detection and marking of danger areas; (ix) decontamination and similar protective measures; (x) provision of emergency accommodation and supplies; (xi) emergency assistance in the restoration and maintenance of order in distressed areas; (xii) emergency repair of indispensable public utilities; (xiii) emergency disposal of the dead; (xiv) assistance in the preservation of objects essential for survival; (xv) complementary activities necessary to carry out any of the tasks mentioned above, including, but not limited to, planning and organization.” It will be noticed that the last-mentioned “task” renders the enumeration less exhaustive than it purports to be.

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(Articles 62, 67). In order to enhance the possibilities of respect and protection, a first requirement is, of course, that both personnel and objects are identifiable. Article 66 does not categorically oblige the Parties to the conflict to meet this requirement; rather, each Party “shall endeavour to ensure” that this is achieved. To that end, an “international distinctive sign of civil defence” has been agreed upon, defined in paragraph 4 of Article 66 as “an equilateral blue triangle on an orange ground”. Sections II (“Relief in favour of the civilian population”) and III (“Treatment of persons in the power of a Party to the conflict”) of Part IV will not be dealt with in detail here. This is not to detract in the slightest from the significance of these Sections. In point of fact, Section II on relief is a most valuable improvement on the relevant provisions of the Fourth Geneva Convention and, indeed, represents an indispensable complement to the first Section of Protocol I on general protection of the civilian population. Section III, for its part, embodies a large number of most important human rights-type provisions. Outstanding among these is Article 75 which under the title “Fundamental guarantees” reaffirms, in the context of international armed conflict, the right of all persons who are in the power of a Party to the conflict to be “treated humanely in all circumstances.” Paragraph 2 provides a list of acts which “are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents.” This is in effect an improved version of the list of prohibited acts in Article 3 common to the four Geneva Conventions of 1949. Paragraphs 3-7 contain a complete set of due process clauses applicable to persons arrested, detained or interned for reasons related to the armed conflict. To treat the matters covered by Sections II and III more fully would mean going well beyond the subject dealt with so far in this section of the present paper, i.e., the protection of the civilian population as an aspect of the actual conduct of hostilities. For this reason, the present writer feels justified in letting these Sections rest. 3.5

Civilian Population in Internal Armed Conflicts

Before passing on to the next subject, a moment’s attention should be given to the protection of the civilian population in Protocol II. As related in section I, in the course of its final session the plenary Conference adopted an Article on this subject (Art. 7 in the simplified Pakistan draft; Art. 13 in the final version of the Protocol) which in its opening paragraph states the fundamental principle that 144 Further regulations concerning the sign, and concerning the identity card which, according to Art. 66(3), civil defence personnel should be equipped with in “occupied territories and in areas where fighting is taking place or is likely to take place”, are found in Chapter V, on Civil Defence, of the Regulations concerning Identification, which form Annex I to Protocol I. 145 Art. 68 of Protocol I mentions specifically Articles 23, 55, and 59-62 of that Convention.

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“[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” This statement of principle is followed by a set of provisions (paragraphs 2 and 3 of Article 13, Articles 14-18) which are incomparably more modest than those discussed above on the general protection of the civilian population in international armed conflicts. Retained are the rules that “the civilian population as such, as well as individual civilians, shall not be the object of attack” and that “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” (Art. 13(2)). However, the concept of indiscriminate attacks does not figure in the text, whether in its absolute or relative form. Similarly, there is no reference whatsoever to the protection of civilian objects in general. While the natural environment has equally been ignored, there are, on the other hand, simplified versions of the rules on protection of objects indispensable to the survival of the civilian population (Art. 14), works and installations containing dangerous forces (Art. 15), and cultural objects and places of worship (Art. 16). Article 17 on forced movement of civilians is also highly relevant; paragraph 1 prohibits to order “[t]he displacement of the civilian population … for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand”, and in the latter case “all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.” While, thus, displacements of the civilian population are only exceptionally permitted within the territory of the State, paragraph 2 categorically prohibits compelling civilians “to leave their own territory for reasons connected with the conflict.” The last Article in this Part of Protocol II, Article 18 on “Relief societies and relief actions”, concerns the grave problem of humanitarian action in internal armed conflict. The country being torn apart both politically and militarily by the ongoing struggle, each side will be inclined to qualify as support to the enemy any aid given to the other side, no matter how exclusively humanitarian. This will jeopardize not only the safety of the person lending assistance, but the whole idea of humanitarian aid. Then again, the Red Cross Society in the country may find it impossible to maintain its unity – one of the fundamental Red Cross principles. Paragraph 1 of Article 18 seeks to remedy this situation to the maximum extent feasible by laying down that “[r]elief societies located in 146 A curious detail is that here, as in Art. 56 of Protocol I, works and installations are protected “even where these objects are military objectives.” In effect, the distinction between civilian objects and military objectives figures nowhere in the text of Protocol II, let alone that a definition of the latter category of objects is provided. This may be a consequence of the haste with which the final version of Protocol II was put together. 147 “Unity” is the sixth of seven fundamental principles adopted by the XXth International Conference of the Red Cross, held in Vienna, 1965. Its meaning is described as fol-

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the territory … such as Red Cross (Red Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict.” The civilian population too “may, even on its own initiative, offer to collect and care for the wounded, sick and shipwrecked.” Although this cautious language does not lay any obligation on the contesting parties to accept such offers, it does prevent them from regarding these as unfriendly – let alone punishable – acts. Moreover, once having accepted such offers, they will be precluded from treating the actual performance of the named humanitarian tasks as reprehensible aid to the enemy. Paragraph 2 of Article 18 is designed to create an opening for relief actions in favour of the civilian population if this “is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies.” For such a grim situation, where thousands of civilians may be exposed to death from starvation or unchecked disease, the paragraph provides that relief actions “which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned”. The requirement of consent represents yet another unavoidable bow to the sovereignty of the state. One can only hope that the description of the factual situation endangering the civilian population, combined with the express limitation to exclusively humanitarian, impartial and non-discriminating relief actions, will render it morally difficult, if not impossible, for the “High Contracting Party” to refuse its consent, even if the main or sole beneficiaries of the aid would be civilians in enemy-held territory. As may be evident from the above paragraphs, Articles 13-18, together constituting Part IV (“Civilian population”) of Protocol II, cover a lot of ground. They do this far more summarily and with infinitely less detail than do the comparable Articles of Protocol I. Yet, if they are faithfully implemented by the conlows: “There can be only one Red Cross Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory.” 148 The term “organizations” was deliberately chosen instead of “Societies”, to leave the possibility for a non-recognized Red Cross “organization”, established in the course of the conflict in one part of the country (probably in the part held by the insurgents) to be permitted to function despite the obvious infringement of the principle of unity. 149 The opening Article of the preceding Part III (“Wounded, sick and shipwrecked”), Article 7 on “Protection and care”, lays down the -fundamental principles that “All the wounded, sick and shipwrecked, whether or not they haven taken part in the armed conflict, shall be respected and protected”, that they “shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition”, and that “There shall be no distinction among them founded on any grounds other than medical ones.” Article 10 (“General protection of medical duties”) spells out that no-one “shall be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”

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tending parties, the fate of the civilian population in any country struck by an internal armed conflict will be far less horrid than is often the case in what tends to be a particularly ruthless type of war. A similar remark should of course be made with respect to the whole complex of principles and detailed rules for the protection of the civilian population, laid down in Part IV of Protocol I for the event of international armed conflict. There too, all will depend on the faithful implementation of what was so ingeniously devised to save the civilian population from the ever-increasing devastation inflicted by modern warfare: after the participants to the Conference, it will be the turn of the participants in actual hostilities to demonstrate their willingness to take, in the terms of Article 57(1), “constant care … to spare the civilian population, civilians and civilian objects.” 4

Methods and Means of Warfare

The subject-matter discussed in this section is mainly that of Part III, Section I (“Methods and means of warfare”) of Protocol I. Section II (“Combatant and Prisoner of war status”) was examined in section II of this paper. It may also be stated at the outset that Protocol II contains no provision comparable to those of Protocol I, Part III, Section I. The first two Articles of the Section (35 and 36) discuss methods and means of warfare in general, and the remaining Articles (37-42) the employment of specific methods. Article 35, entitled “Basic rules”, provides fundamental principles governing the employment of all methods and means of warfare, whereas Article 36, incorrectly (because too narrowly) entitled “New weapons”, deals with the question of the responsibility of States for the development etc. of new methods and means of warfare. The opening paragraph of Article 35 reads: “In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.” This text provides a reaffirmation, as well as a significant development, of the rule laid down in Article 22 of the Hague Regulations of 1899/1907 that “[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.” The phrase “methods or means of warfare” is doubtless considerably broader than “means of injuring the enemy”. Yet, the new formula passed without opposition: evidently, no delegate was willing to argue that there are no limits to the right of belligerent Parties to choose methods (as opposed to means) of warfare, nor that any limits on his right of choice should be confined to methods or means to the extent that these affect the adverse armed forces (“the enemy”, in a narrow sense) rather than the adverse Party in its entirety, including the civilian population (“warfare”). The principle expressed in paragraph 1 is as abstract as it is vague; as the representative of Mongolia pointed out in the introductory debate on the draft Article in Committee III, “the concept of ‘unlimited right’, like that of limited

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right, would remain imprecise so long as no specific criteria for defining it had been adopted.” Yet, its reaffirmation and development in Protocol I is a far from empty gesture; it means exactly what it says, viz., that there are limits to the right of belligerent Parties to choose methods as well as means of warfare, and this in all armed conflicts. Since the scope of Protocol I is restricted to international armed conflicts, the term “all armed conflicts” can only have the meaning of all international armed conflicts, no matter how they are waged – as conventional wars between regular armies or as guerrilla wars; or whether they are between independent states or between a colonial power and the people in the colony struggling for self-determination. This is an important clarification and, indeed, amounts to an implicit rejection of the argument advanced by some mainly Third World delegates, that the Article as drafted by the ICRC (which did not contain the express reference to “all armed conflicts”) solely “envisaged a conventional war situation.” One step down on the scale of abstraction is paragraph 2: “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.” Like the preceding paragraph, this one too both reaffirms and develops pre-existing law, viz., the prohibition in Article 23(e) of the Hague Regulations of 1907 to “employ arms, projectiles, or material calculated to cause unnecessary suffering” (or, in the earlier English translation of the text of 1899, “of a nature to cause superfluous injury”). The main addition is, of course, the reference to methods of warfare as well as the means, described here as weapons, projectiles and material. This time the extension did not go uncontested. The Australian delegation formally opposed it, first, by introducing in Committee III an amendment to delete the “methods”; subsequently, once the text had passed unaltered in this respect through the Working Group, the delegation elicited a separate vote on the words “and methods of warfare” – a vote it lost by 58 votes to one, with 7 abstentions. As Mr. Cameron, speaking for the Australian delegation, explained after the vote, “the inclusion of those words … marked a substantial and unexplored extension to the law.” Indeed, it was the lack of exploration, in Committee III or in the Working Group, of the

150 151 152 153 154

CDDH/III/SR. 26, 27 Feb. 1975, para. 26. CDDH/III/SR. 27, 3 March 1975, para. 18: Mr. Rabary (Madagascar). CDDH/III/237; see CDDH/III/SR. 26, 27 Feb. 1975, para. 8: Mr. Mahony (Head of the delegation of Australia). CDDH/III/SR. 38, 10 April 1975, para. 7. Ibid., para. 51. Mr. Cameron added that “[h]is delegation had abstained from voting on article 33 [35 in the final version] for that reason.” This is a somewhat surprising remark, in view of the fact that the Article had just been adopted by consensus (ibid., para. 7); it may go to show once again that a “consensus vote”, no matter how indispensable to expedite matters in international conferences, is far from being perceived by the participants as a registration of unanimity.

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consequences of the extension which more than anything else had prompted the Australians to maintain their negative stand in the matter. In support of the Australian opposition, it should be recognized that the norm of customary international law embodied in Article 23(e) of the Hague Regulations traces its origin to the Declaration of St. Petersburg, 1868, renouncing the use of certain light projectiles. The preamble of this Declaration contains the following considerations: That the progress of civilization should have the effect of alleviating as much as possible the calamities of war; That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.

The Declaration of Brussels, 1874, and subsequently the Hague Regulations, reduced this ornate language to the more sober formulations of principle quoted above as Articles 22 and 23(e) of the latter instrument. More importantly, the participants at the Hague Peace Conferences related these principles to specific prohibitions on the discharge of projectiles and explosives from balloons, the use of asphyxiating or deleterious gases and the use of expanding bullets – and never to any prohibited methods of warfare. Indeed, this was not done in any other international forum prior to the Diplomatic Conference of 1974-1977. The extension to methods, therefore, represents a rather sudden and, indeed, largely unexplored extension of the law. Thanks to the Australian delegation, it did not go unnoticed; the absence of further comment, either in the summary records or in the Report of Committee III, can probably be attributed to the general feeling that the new rule, though terra incognita, is not likely to prove particularly dangerous ground. More precisely, it is difficult to imagine on what substantive grounds one could plausibly have objected to the prohibition of methods of warfare “of a nature to cause superfluous injury or unnecessary suffering”, now that means of such a nature have been so prohibited for over a century. The sole argument that means are tangible and, therefore, easier to assess than methods, 155

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The Parties to the Declaration engaged “mutually to renounce, in case of war among themselves, the employment by their military troops of any projectile below a weight of 400 grammes, which is either explosive or charged with fulminating or inflammable substances”; for text, see: Schindler & Toman, op. cit. note 21, p. 95. Articles 12 and 13(e) of the Declaration of Brussels; ibid., at p. 29.

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surely could not be taken seriously: the tangibility of means notwithstanding, it has proved exceedingly difficult over the years to determine which ones are, and which ones are not, of such a nature as to fall within the purview of the prohibition in Article 23(e), Hague Regulations. It will be readily seen that this difficulty of determination is the result of the vagueness of the norm itself. We may leave aside, as no longer particularly relevant, the difficulties that arose in the past from the unfortunate translation of the phrase “propres à causer des maux superflus” in the authentic French text of the 1907 Hague Regulations, into “calculated to cause unnecessary suffering”: the wording of the present Article 35(2) sets matters right in this respect. This leaves the question wide open, however, what is to be understood by “superfluous injury or unnecessary suffering”. Perhaps not surprisingly, the Conference records contribute precious little to a clear understanding of this phrase. After all, it was not new law that was being created, and Mr. Baton, speaking for the United Kingdom, rightly noted that, while corrections had now been made to the “somewhat erroneous translation” of the French text of 1907, “the original wording in the French text had been retained”, so that he “saw no change in the meaning which had been, and was now, given to the expression ‘propres à causer des maux superflus’” and, by inference, to the English equivalent, “superfluous injury or unnecessary suffering”. It seems plausible that for this reason most delegates preferred to remain silent on what has always been, and continues to be, a thorny question. There were a few exceptions to this general pattern of silence, however. Speaking in explanation of vote after Committee III had adopted Article 35 by consensus, Mr. Cristescu (Romania) stated that in his opinion “the only valid interpretation of the provisions of paragraph 2 of article [35] was that made in the light of provisions of international law unanimously accepted in the St. Petersburg Declaration … in accordance with which the only legitimate goal that States should set themselves in time of war was the weakening of the enemy’s

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While the British delegate. Sir David Hughes-Morgan estimated that “it might perhaps be better … to say ‘injury’ instead of ‘suffering’” (CDDH/III/SR. 26, para. 28), the words “unnecessary suffering” were nonetheless retained besides “superfluous injury” because they had become part and parcel of customary law and were, moreover, deemed to add a useful nuance to the concept of “superfluous injury”. As noted in the Report of Committee III, “the French, ‘maux superflus’ … includes both physical and moral injury.” CDDH/215/Rev. 1, para. 21. The element of calculation, on the other hand, was dropped without a word of comment; interestingly, at the Lucerne Conference of Government Experts on the Use of Certain Conventional Weapons (24 Sept. – 18 Oct. 1974), one expert had argued in favour of its retention, because “without it weapon designers might not always refrain from deliberately designing weapons that would cause unnecessary suffering.” ICRC, Report of the Conference (1975), para. 22. CDDH/III/SR. 38, para. 50.

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military forces …” Mr. Herczegh (Hungary), speaking in the same vein but with even greater precision, placed on record that in his delegation’s view “the unnecessary suffering to which reference was made in that article could be interpreted as suffering the gravity of which exceeded what was strictly necessary in order to render an enemy hors de combat, which was the only legitimate goal that the St. Petersburg Declaration of 1868 allowed a State at war.” It should be noted that Mr. Herczegh’s words provide neither a literal quotation from, nor even a completely accurate reflection of the famous preambular paragraphs to the St. Petersburg Declaration. There is a considerable difference between, on the one hand, a rule permitting “to disable the greatest possible number of men” and then drawing the line at “the employment of arms which uselessly aggravate the sufferings of disabled men or render their death inevitable” and, on the other hand, a rule permitting only that which is “strictly necessary in order to render an enemy hors de combat”: it is, basically, the difference between a primarily collectivistic and an exclusively individualistic approach (or, what might amount to the same thing, between an essentially realistic and a somewhat more idealistic approach). Be this as it may, the remarks made by Messrs. Cristescu and Herczegh were first of all an attempt to revive a debate that had been held a few months earlier, in the course of the Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24 September – 18 October 1974). The quoted speakers drew no response in Committee III, and as this might leave the impression that their interpretation of “superfluous injury or unnecessary suffering” was the only valid and generality accepted one, it seems necessary to set the record straight by quoting at some length from the relevant paragraphs in the Report of the Lucerne Conference: A question of particular importance was what injury should be considered as superfluous, what suffering as unnecessary. There was widespread agreement among the experts that this involved some sort of equation between, on the one hand, the degree of injury or suffering inflicted (the humanitarian aspect) and, on the other, the degree of necessity underlying the choice of a particular weapon (the military aspect). It was also widely agreed that the equation would often be a particularly difficult one, as neither side of the equation could easily be reduced to precise figures and as, moreover, the two sides were so different that they were hard to compare. 159 Ibid., para. 38. 160 Ibid., para. 39. The point is also reflected in the Report of the Committee, CDDH/215/ Rev. 1, para. 21. 161 The present writer reported on that Conference and on the debate concerning unnecessary suffering in particular, in 6 NYIL (1975), at pp. 89-90. 162 Report of the Conference (1975), paras. 24-27.

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This ostensibly academic debate, the merest shadow of which was reflected in the proceedings of Committee III (supra), assumes its full practical significance in connexion with the discussions which were going on at the same time, and which have continued since, on the much more concrete question of whether and to what extent prohibitions or restrictions should be placed on the use of specified conventional weapons. To examine this question, the ICRC had convened the aforementioned Lucerne Conference of Government Experts, and it subsequently convened a second session of that Conference at Lugano, from 28 January to 26 February l976. The Diplomatic Conference, for its part, had established an Ad Hoc Committee for the same purpose, and this pursued its task throughout all four sessions of the Conference. When the Diplomatic Conference drew to a close in 1977 nothing spectacular had been accomplished in this domain. As the records show, the sole subject on which consensus seemed to have been virtually achieved was the prohibition “to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.” As Mr. de Graffenried, speaking 163 7 NYIL (1976) pp. 197-206. 164 CDDH/IV/210, proposal made in 1976 by Austria, Mexico, Norway, Sweden, Switzerland and Yugoslavia; Denmark, Colombia and Spain subsequently became co-sponsors (CDDH/IV/210/Add. 1 & 2). See, for discussion of the proposal during the closing session of the Conference, the Report of the Working Group of the Ad Hoc Committee, CDDH/IV/224/Rev. 1, paras. 7-10, and the Report of the Ad Hoc Committee, CDDH/408/Rev. 1, para. 7. For earlier deliberations, see Report

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for the Swiss delegation in the Ad Hoc Committee had explained in the course of the third session, “[t]he proposal was essentially a humanitarian one, designed to reduce unnecessary suffering”: the “severe medical complications” produced by the presence of such fragments in the human body “were not justified by military necessity, since they went beyond the minimum required to put the enemy out of action.” This was as clear a reference as any to the criterion of unnecessary suffering and the earlier debate on that subject in the Lucerne Conference. Mr. de Graffenried made the point even more explicit when he explained later on that the purpose of the proposal was not to prohibit the use of certain modern weapons, such as land mines provided with a casing of “material consisting solely or mainly of atoms of low weight, such as wood, glass and particularly plastic”, so that the mines would escape detection; rather “[t]he intention was … to eliminate some of their effects. That could be done by adding atoms of higher weight to the materials in question to render fragments detectable by X-ray but not by mine detectors. Thus, the balance between military needs and humanitarian requirements would be achieved.” Besides this proposal on “non-detectable fragments”, none of the other proposals – on napalm and other incendiary weapons, mines and booby-traps, small calibre projectiles, fléchettes, anti-personnel cluster warheads and similar devices, and fuel-air explosives – commanded such widespread agreement verging on unanimity. Many of them were, moreover, oriented wholly or in part towards a different criterion, viz., indiscriminateness. Like the criterion of unnecessary suffering, this had been hotly debated at the Lucerne Conference. The main points of contention at the time had been whether there existed, as a rule of positive international law, a prohibition to use “indiscriminate weapons” and, if so, how that prohibition was to be applied. While a number of experts answered the former question in the negative, an even greater number of them were extremely sceptical with regard to the latter question: Except for the case of a weapon intentionally designed to follow a random course and at the end of its trajectory hit whatever object happened to be there, all conventional weapons could be used in circumstances where the risk of hitof the Lugano session of the Conference of Government experts (Geneva, 1976), Part I, paras. 49-50; Part II, Ninth Meeting; Part III, paras. 77-82; Part IV, doc. COLU/ 212 (Mexico and Switzerland); and CDDH/237/Rev. 1: Report of the Ad Hoc Committee, 3rd session, paras. 23-24. 165 CDDH/IV/SR. 25, 13 May 1976, para. 3; Mr. de Graffenried repeated and elaborated on this statement in the meeting of 27 May 1976, CDDH/IV/SR. 31, paras. 29-32. 166 CDDH/IV/SR. 31, para. 32; italics supplied. 167 See, in particular, CDDH/IV/226: Comparative Table of Proposals and List of Information Documents, produced by the secretariat of the Conference and published on 6 June 1977. 168 Report of the Lucerne Conference, para. 30.

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As this quotation shows, the key element in discussions about the indiscriminateness of given weapons, or methods of use of weapons, resides in the protection of the civilian population against the effects of hostilities. This point is accentuated by the place given to the criterion of indiscriminateness in Protocol I: while Article 35, on “Basic rules” concerning methods and means of warfare, remains entirely silent on the subject, Article 51 (“Protection of the civilian population”) qualifies, as we have seen, as “indiscriminate attacks”, inter alia, “those which employ a method or means of combat which cannot be directed at a specific military objective” and “those the effects of which cannot be limited as required by this Protocol.” All the .more striking, given the silence of Article 35 on the basic principle of discrimination, is the express prohibition in paragraph 3 of the employment of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” As we have seen, this prohibition is identical to the one embodied in Article 55, except for the added element of “prejudice to the health or survival of the population” in that Article. In view of the comments on Article 55 made in the previous section of this paper, there is no need for further comment on paragraph 3 of Article 35. 4.1 Conventional Weapons Reverting to the subject-matter dealt with by the Ad Hoc Committee on Conventional Weapons, it may be evident from the foregoing that not nearly as much had been accomplished by the Ad Hoc Committee as by the other main Committees. No text had been formally adopted, not even on the nondetectable fragments, and most proposals were still the subject of considerable controversy. The Conference in its 57th plenary meeting, on 9 June 1977, registered this situation in Resolution 22 on the “Follow-up Regarding Prohibition or Restriction of Use of Certain Conventional Weapons.” In a preambular paragraph, the Resolution expresses the conviction of the Conference “that the suffering of the civilian population and combatants could be significantly reduced if agreements can be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed to be excessively injurious or to have indiscriminate effects.” Then, in a careful analysis of the results obtained so far, it notes “that agreement exists” with respect to the question of non-detectable fragments, “that there is a wide area of agreement with regard to land-mines and booby-traps”, that effort had been devoted “to the further narrowing down of divergent views on the desirability of

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prohibiting or restricting the use of incendiary weapons, including napalm”, that the effects had been considered “of the use of other conventional weapons, such as small calibre projectiles and certain blast and fragmentation weapons” and that consideration had begun “of the possibility of prohibiting or restricting the use of such weapons.” The work should continue, the Resolution says, and those involved “should, in each case, seek the broadest possible agreement.” After all these preambular considerations, the Resolution recommends in its third operative paragraph “that a Conference of Governments should be convened not later than 1979 with a view to reaching: (a)

(b)

agreements on prohibitions or restrictions on the use of specific conventional weapons including those which may be deemed to be excessively injurious or have indiscriminate effects, taking into account humanitarian and military considerations; and agreement on a mechanism for the review of any such agreements and for the consideration of proposals for further such agreements.

In its remaining paragraphs, the Resolution recommends that the necessary steps should be taken with a view “to establish[ing] the best possible basis for the achievement at the Conference of agreements as envisaged in this resolution” (para. 6). Acting on these recommendations, the UN General Assembly decided in December 1977 to convene a United Nations Conference in 1979 for the purposes set out in paragraph 3 of Resolution 22, and to convene a UN preparatory conference which “should meet once in 1978 for organizational purposes and, subsequently, with the task of establishing the best possible substantive basis for the achievement at the United Nations conference of agreements as envisaged in the present resolution and of considering organizational matters relating to the holding of the United Nations conference.” At the time of writing, the preparatory conference is about to begin its work at Geneva, where it will meet from 28 August – 15 September 1978. Its task will be far from easy, and thorny questions will have to be settled. The thorniest issue of all may be the voting procedure; should there be a consensus for all substantive decisions, or should a majority vote suffice? As noted above, Resolution 22 of the Diplomatic Conference expressed the belief that the further work “should, in each case, seek the broadest possible agreement”; and GA Resolution 32/152 echoes this belief. To one group of States, with many Western States among them, the idea of “broadest possible agreement” implies 169 Res. 32/152, 19 Dec. 1977, adopted by 155 votes to none, with 21 abstentions. The Resolution takes note, inter alia, of the Report of the Secretary-General on the work done by the Diplomatic Conference during its 4th session with regard to the subject-matter at hand, A/32/124, 8 Sept. 1977. 170 Operational para. 1.

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that consensus should be required in each case: only thus, these States argue, can a prohibition or restriction on the use of a specific conventional weapon be expected to achieve its purpose. Conversely, an agreement with no more than a majority vote behind it risks remaining without effect, especially if important States are among those which did not cast an affirmative vote. Another group of States, convinced of the desirability of the agreements they seek to achieve, feel that to accept a consensus rule would be tantamount to bowing to the will of an erring minority. Time will show which side wins the argument and, subsequently, what comes of the 1979 United Nations Conference. In the meanwhile, some attention may usefully be given to an aspect of the question of “means and methods of warfare” which, like other aspects of that question, is as old as the St. Petersburg Declaration (at least as far as “means” are concerned) and which re-emerged as a topical issue at the time of the recent Diplomatic Conference. The criterion of superfluous injury or unnecessary suffering is vague and difficult to apply, and so is that of indiscrimination. The International Military Commission which met at St. Petersburg in 1868 had these principles in mind when it “fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity” and, applying these limits to the newly developed Russian bullet which exploded on contact with a soft surface such as the human body, prohibited the use of explosive projectiles and of those charged with fulminating or inflammable substances, up to a weight of 400 grammes. The makers of the Declaration recognized at the same time, however, that weapon developments were likely to continue and that there was no guarantee that these developments would respect the established principles in all cases. Without setting up any institutionalized structure for that purpose (as would have been hardly thinkable at the time) the Contracting Parties therefore laid down in so many words that they “reserve[d] to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the armament of troops, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity.” Science has indubitably effected many improvements in the armament of troops, and this with a measure of regularity and increased intensity which stand in sharp contrast to the paucity of understandings arrived at over the same period with a view to maintaining the balance between the necessities of war and the laws of humanity. The widespread dissatisfaction with this situation which had become apparent in many countries, especially since the Vietnam war, could not fail to lead to attempts, not only to place bans or restrictions on the use of certain existing conventional weapons, but to establish some sort of mechanism for the review of future weapon developments.

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Supra, loc. cit. note 155.

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Evaluation of new weapon designs in the light of existing legal criteria is widely regarded as a duty of the national authorities in the first place, and the same goes for new methods of warfare. Article 36 of Protocol I expresses this view in the following terms: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

This obligation, applicable as much in time of peace as of war, is already being met by several states which have established official procedures for that purpose. As the Report of Committee III explains, the reference to “some or all circumstances” is not meant to imply a duty for States “to foresee or analyse all possible misuses of a weapon, for almost any weapon can be misused in ways that would be prohibited.” Rather, “the article is intended to require States to analyse whether the employment for its normal or expected use would be prohibited under some or all circumstances.” Evidently, moreover, “[d]etermination by any State that the employment of a weapon is prohibited or permitted is not binding internationally but it is hoped that the obligation to make such determinations will ensure that means or methods of warfare will not be adopted without the issue of legality being explored with care.” The lack of international binding force for any determination unilaterally made by a State under Article 36 inevitably leads to the further question whether the establishment of an international review mechanism was contemplated at the Conference. The answer is affirmative, but it should immediately be added that no positive result emerged from the discussions on this particular issue. While the experts participating in the Lucerne Conference, 1974, directed their attention to the need for national review in the first place, the delegation of Pakistan in 1975, in the course of the second session of the Diplomatic Conference, introduced a proposal for an international approach. The suggestion was welcomed by several speakers in Committee III, most explicitly by Mr. Blix (Sweden), who stressed that national evaluation of weapon developments was inadequate “and should be supplemented by international machinery.” He added that a provi172 173 174 175

CDDH/215/Rev. 1, para. 31; italics supplied. Ibid., para. 30. Report of the Lucerne Conference, paras. 277-281. The proposal was for an amendment of draft Art. 33 (later Art. 35); it envisaged periodic meetings of the Contracting Parties under the auspices of the ICRC, with a view to prohibiting, as the occasion arose, particularly reprehensible means or methods of warfare; CDDH/III/11, see also CDDH/III/SR. 26, 27 Feb. 1975, para. 4.

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sion on this matter could be placed in the article on “new weapons” or in that on amendment of Protocol I, which, as drafted by the ICRC, already provided the possibility of future conferences being convened by the depositary to consider proposed amendments to the Protocol; indeed, it could even be placed in a separate Protocol on conventional weapons. The matter was next taken up at the Lugano Conference, 1976, notably by a working group on “general and legal questions” where Mr. Kussbach (Austria) introduced an informal proposal for a clause on review conferences to be attached to a future agreement (or agreements) on conventional weapon limitations – the last-mentioned of Mr. Blix’s suggestions. Another particularly active participant in the debate on conventional weapons, Mr. de Icaza (Mexico) formally proposed that the Diplomatic Conference “grant this Conference of Government Experts permanent status in order that it may, in accordance with the terms of reference granted to it, continue working for the conclusion of agreements to prohibit the use of conventional weapons likely to cause unnecessary suffering or to have indiscriminate effects.” An interesting though unlikely suggestion, as it seems hard to understand how a temporary diplomatic conference could grant permanent status to another conference, no matter how expert. In 1976 the matter was broached in the Ad Hoc Committee of the Diplomatic Conference. The first speaker to bring it up was Brigadier Anemaet of the Netherlands delegation. On behalf of his Government he suggested “to set up some sort of independent institute to collect information on the possible and actual effects of certain conventional weapons.” Such an institute, possibly linked up with the ICRC, the World Health Organization or the UN Secretariat or even set up as an independent UN institute, “could organize conferences at regular intervals, or whenever a certain number of countries thought it advisable, in order to decide upon common rules” regarding the use of specified conventional weapons. The suggestion drew some favourable comment. At the same time, other delegates mentioned different solutions; thus, the Mexican delegate, reverting to an idea launched previously by Mr. Blix, considered that failing other solutions, “the most suitable formula might perhaps be to include in article 86 of draft additional Protocol I [i.e. the article on amendment] a provision for the ICRC to organize at regular intervals and on a permanent basis, or in the intervening period at the request of a specified number of the High Contracting Parties, a meeting open to all the Parties to the Conventions [of Geneva of 1949] and the 176 CDDH/III/SR. 27, 3 March 1975, paras. 53, 54. The Article on amendment (86 in the ICRC draft, 97 in the final version) is in Part VI, “Final provisions”. 177 Report of the Lugano Conference, pp. 125, 144-146. 178 Ibid., p. 183: COLU/210. 179 CDDH/IV/SR. 33, 1 June 1976, paras. 37-39; see, too, Report of the Ad Hoc Committee, 3rd session, CDDH/237/Rev. 1, para. 58.

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Protocol to review the provisions of articles 33, 34 and 35 of draft Protocol I [3537 in its final version] and the possible prohibition or restriction of weapons that caused unnecessary suffering or had indiscriminate effects or were by their nature treacherous”: such meetings would have the character of expert meetings and would serve to prepare the ground for subsequent diplomatic conferences on the same topics. Then, as late as 26 April 1977, something like a bomb was exploded on the Diplomatic Conference when Mexico and ten other delegations tabled a proposal in Committee I for a new Article 86bis to be included in Part VI (“Final provisions”) of Protocol I after the Article on amendment. The proposal envisaged the establishment of a Committee of States Parties to the Protocol, the task of which would be “to consider and adopt recommendations regarding any proposal that one or more State Parties may submit concerning the prohibition or restriction of the use of conventional weapons that may cause superfluous injuries or have indiscriminate effects.” The proposal made provision for ICRC participation in, and secretarial assistance to, the work of the Committee, and it envisaged special conferences being convened on the basis of the recommendations of the Committee, “to adopt agreements that implement the principle that the Parties to the conflict do not have an unlimited right of choice of means of combat.” Though the proposal could hardly have come as a complete surprise to those who had closely followed the preceding deliberations both at Lugano and in the Ad Hoc Committee, a number of delegations in Committee I reacted as if stung by a wasp. As is usual in international conferences, these reactions first of all assumed the shape of objections on grounds of procedure: the subject-matter of the proposal properly belonged in the Ad Hoc Committee, Committee I lacked competence to discuss it. In the next meeting, on 27 April 1977, the Chairman announced however that “unofficial talks … had led him to believe that a consensus would be possible” on a procedure the main elements of which were that the proposed new Article would be debated in Committee I like other draft Articles and would be examined by one of the working groups of Committee I after the 180 CDDH/IV/SR. 33, para. 19; Report, para. 59. 181 CDDH/I/340; the co-sponsors were Bolivia, Ecuador, Guatemala, Honduras, Iran, Nicaragua, Philippines and Spain; in the days that followed, Egypt, Peru and Venezuela (Add. 1), Sudan and Yugoslavia (Add. 2) and Iraq and Pakistan (Add. 3) joined the ranks of the co-sponsors. 182 Statements to that effect were made by delegates of France, Italy, the United Kingdom, Canada and Hungary. Other delegates strongly defended the competence of Committee I in the matter; strikingly, the Romanian delegate was among them, thus demonstrating the independent posture of his country in matters of international politics: the Soviet bloc had from the outset consistently argued that no new machinery was needed or, indeed, acceptable, as the Conference of the Committee on Disarmament or CCD already existed and was perfectly, and alone, competent to deal with matters of armament and disarmament. The entire debate is recorded in CDDH/I/SR. 68, 26 April 1977.

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working group had finished its other business. The absence of negative reactions confirmed him in this belief, so that he could “consider that his proposal was adopted by consensus.” After Mr. Bloembergen (Netherlands) had taken the floor to announce that “his delegation unreservedly supported the principle of the Mexican proposal”, the newly proposed draft Article was referred to Working Group C of Committee I. This Working Group, like the Committee very much pressed for time, hotly debated the proposal for a few days in the second week of May, 1977. As its Report shows, the debate was anything but harmonious; it places on record, on the one hand, that “[t]he laudable humanitarian motives which led the co-sponsors to submit the article were praised by all and sundry and there were felicitations all round”; on the other hand, the Working Group finally decided to submit two alternative proposals to Committee I: (a) to delete the proposed Article altogether, and (b) to adopt a text for the Article closely resembling the one originally proposed by Mexico and others. This complete lack of consensus in the Working Group stood in striking contrast to the normal procedure in that as in other Working Groups of the Conference, which had usually done their utmost to arrive at generally acceptable solutions. Evidently, the subject-matter at hand was so politically loaded that the proponents of the draft Article were not prepared to follow this normal procedure; indeed, as the Report of the Working Group shows, and as was stressed later by the Canadian delegation in a written explanation of vote, the co-sponsors of draft Article 86bis had not been willing to discuss the revision of the text they had proposed in the Working Group, but only in a meeting with like-minded delegations which was closed to non-sympathisers and the results of which were subsequently simply submitted to the Working Group. Having thus been rushed through the Working Group, the draft Article was equally rapidly, and without further substantive debate, brought up for decision in Committee I. At the outset of the relevant meeting, some Western opponents of the Article introduced a little surprise of their own, in the shape of a draft resolution that would take the place of Article 86bis and, rather than providing 183 184

185

CDDH/I/SR. 69, paras. 1-7. Ibid., para. 8; this statement, though not surprising in the light of the suggestion made earlier by Brigadier Anemaet speaking for the Dutch delegation, deviated markedly from the posture assumed by many of the Western colleagues, as had already become apparent in the procedural debate of the previous day. CDDH/I/350/Rev. 1/Add. 1/Rev. 1; the Report of the Working Group is annexed to that of Committee I on its work during the 4th session of the Conference, CDDH/405/Rev. 1. For the Canadian statement, see CDDH/I/SR. 77, 18 May 1977, Annex. For completeness’ sake, it should be recorded that the Ad Hoc Committee on 5 May 1977 had briefly become the scene of a half-hearted attempt to open a discussion on what action should be taken in that forum on the proposed draft Article 86bis; this attempt was soon defeated; CDDH/IV/ SR. 38.

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for permanent international machinery built into Protocol I, would recommend that “a Conference be convened in order to carry on the search for agreements on restrictions or prohibitions on the use of specific conventional weapons.” This move did not, however, prevent the Committee from continuing its deliberations on Article 86bis. In a rapid succession of votes, the proposal to delete the Article was rejected, a number of decisions were taken on the inclusion of words appearing in square brackets in the text submitted by the Working Group, and the Article itself was adopted by 50 votes to 27, with 13 abstentions. Only a fortnight later, on 31 May 1977, the Article came up for final decision in the plenary meeting of the Conference (where a two-thirds majority was required for its adoption). After some twenty-five delegations of different persuasions had stated their views at greater or lesser length, and after it thus had become apparent that no rapprochement between the opposing groups seemed practicable, the Article was put to the vote. Not surprisingly, the representative of Mexico requested that the vote be taken by roll-call. The result was 59 votes in favour, 32 against and 10 abstentions. Since this was less than a two-thirds majority, the Article was not adopted. It may be added that the negotiations which had been actively pursued between the vote in Committee I and that in Plenary had merely succeeded in reducing the number of abstentions; for the rest, the ratio between proponents and opponents had not appreciably changed. With this, the attempts to create hic et nunc permanent international machinery for the review of conventional weapon developments had come to an end. It remained for the Conference to deal with a resolution on the weapons question, a first project of which had, as related above, been introduced in Committee I. That Committee did not take the matter up itself: instead, it was brought up immediately in the Plenary. By the time that this happened, on 9 June 1977, sufficient time had elapsed to permit a modicum of reconciliation to emerge between the one-time opponents in the debate on draft Article 86bis. As a result, a single draft resolution could be presented to the Conference which replaced earlier draft texts, including the one mentioned a moment ago. The new draft text was introduced by Mr. Hans Blix (Sweden), as the man who at the first, 1974, session of the Conference had proposed to establish an Ad Hoc Committee on weapons, and who had remained active in that domain throughout the Conference. 186 CDDH/Inf. 240, 16 May 1977; CDDH/I/SR. 77, 18 May 1977, paras. 4 (Mr. Freeland, United Kingdom), 5-6 (Mr. Partsch, Federal Republic of Germany). 187 CDDH/I/SR. 77, para. 13; 30 votes were cast in favour of the deletion of the Article and 40 against, with 13 abstentions. As the vote was taken by roll-call, it shows that the Dutch delegation had meanwhile switched its position and joined those who opposed the Article. Interestingly, the delegation of Norway, another NATO country, voted against its deletion. 188 Ibid., paras. 14-30. 189 Ibid., para. 45. 190 CDDH/SR. 47, 31 May 1977.

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He, like some others, expressed disappointment at the rejection of draft Article 86bis; yet, he felt “there was ground for satisfaction in the fact that it had at least proved possible to work out an agreement on the manner in which efforts in that field might continue”, meaning the Conference of Governments to be convened in 1979 and which would be preceded by a preparatory conference. While it became apparent from various statements that not all delegations regarded themselves as a party to what Mr. Blix had described as an “agreement” on the future work, no delegation considered it necessary to oppose the consensus by which the resolution was thereupon adopted. The Resolution in question, subsequently numbered Resolution 22, was mentioned and substantially quoted above. Attention may be drawn in particular to operative sub-paragraph 3(b), in which the issue of a mechanism for the review of future agreements on prohibitions or restrictions on the use of specific conventional weapons is expressly raised as one of the aspects of the weapons question on which the projected Conference of Governments should seek agreement. This, therefore, is the compromise finally achieved: no provision in the Protocol, but no transfer of the matter to the CCD either; instead, a separate Conference, with a status left undefined in the Resolution but which has since been clarified somewhat in GA Resolution 32/152, referring as it does to a “United Nations conference”: this, at least, takes care of the question of auspices. For the time being, other questions regarding the status and power of the projected “United Nations conference” remain open, and so, evidently, do all questions on the substantive side of the matter, including those relating to the modalities and, indeed, the very acceptability of an international review mechanism. In this writer’s assessment, any worldwide agreement on these matters that is really worthwhile and, thus, neither merely cosmetic nor so idealistic as to defeat implementation, is still a long way off. 4.2

Other Provisions on Methods of Warfare

Among methods of warfare, the one must thoroughly despised in military circles is probably the act of perfidy. Customary international law has contained a prohibition on such acts since time immemorial, and this was codified in Article 23(b) of the Hague Regulations, 1899/1907, providing that it is forbidden “to kill or wound treacherously individuals belonging to the hostile nation or army.” Ruses of war, on the other hand, are considered permissible, as is “the employment of measures necessary for obtaining information about the enemy and the country” (Art. 24 Hague Regulations, in the version of 1907). Easy as it is to state these principles, it has always been very difficult to give any clear definition of what constitutes a treacherous act and what a ruse of war. 191 CDDH/SR. 57, 9 June 1977; the quoted phrase is in para. 50. 192 Ibid., para. 69.

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Indeed, in view of the ever-changing character of warfare and the continuous shift in methods, the question may be asked whether these concepts are not of such a nature as to escape definition in any fixed formula. Be this as it may, the Diplomatic Conference did not shrink from the difficulty of the task at hand and, after prolonged deliberations, finally produced, a text which at least resolves part of the problem. The Article in question, Article 37, deals with perfidy in its first paragraph and with ruses of war in the second. The structure of each paragraph is identical: first, a statement of principle; then a definition, and lastly a list of examples. The principles are that “[i]t is prohibited to kill, injure or capture an adversary by resort to perfidy” and that “[r]uses of war are not prohibited.” Perfidy is defined as follows: “Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Even lengthier is the definition of ruses of war: these are “acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law.” Both definitions hinge on two identical concepts: the confidence of an adversary, and protection under the rules of international law applicable in armed conflict. As the Report of Committee III notes, a reference to “confidence” alone (as in the ICRC draft submitted to the Conference) was regarded as too abstract; rather, the notion of confidence “must be tied to something more precise and should not be tied to internal or domestic law.” For this “something more precise”, the Committee, adopting a suggestion of the delegations of Canada, Ireland and the United Kingdom, “decided to refer to confidence in protection ‘under international law applicable in armed conflicts,’” by which was meant the laws governing the conduct of armed conflict which were applicable -to the conflict in question. While this decision doubtless resulted in a far more precise definition of perfidy than a mere reference to the confidence of the adversary could ever have achieved, time will have to show whether the concept of perfidy has not in this manner been reduced to a state of rigidity which is really irreconcilable with the aforementioned inherent flexibility of the art of warfare. One immediately discernable, peculiar effect of the new definition is that while “the feigning of

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See, for the discussions in the Experts’ Conference preceding the Diplomatic Conference, 3 NYIL (1972), at pp. 30-31. See, too, this writer’s The Law of Warfare (1973) pp. 101-105. 194 CDDH/236/Rev. 1, para. 15.

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civilian, non-combatant status” could be listed among the examples of perfidy, the equally treacherous feigning of friendly status by making use of the “flags or military emblems, insignia or uniforms of adverse Parties” could not be included in the list as it does not invite the confidence of an adversary that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict. This last-mentioned treacherous act now finds its place in a separate article (Art. 39(2)). Article 37 was adopted by consensus both in Committee III and by the plenary Conference, and so were the Articles on “recognized emblems” (Art. 38, adding “the distinctive emblem of the United Nations” to the list of Red Cross and other emblems the improper or unauthorized use of which is prohibited) and on “emblems of nationality” (Art. 39, mentioning the emblems of neutral States besides those of the adversary). The three concluding Articles of this Section, Article 40 on “Quarter”, Article 41 on “Safeguard of an enemy hors de combat” and Article 42 on “Occupants of aircraft” can be said to rest mainly on one and the same principle, viz., the prohibition on employment of methods of warfare “of a nature to cause superfluous injury or unnecessary suffering” (Art. 35(2), supra). Thus, Article 40 prohibits “to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.” Clearly, to initiate and carry out such a policy has the effect, in the terms of the preamble to the St. Petersburg Declaration, 1868, of “rendering death inevitable.” Similarly, the act prohibited in Article 41, to make “[a] person who is recognized to be hors de combat … the object of attack” surely is likely to “uselessly aggravate the sufferings of disabled men” (in the terms of the same Declaration). Article 42 is somewhat more complicated, as will be explained below. While the principles expounded in Articles 40 and 41 are entirely clear, their adoption, once again by consensus, marks an important improvement over the pre-existing written law. The text of the basic rule in Article 41(1) is moreover remarkable in that it prohibits attacks on a person “who, in the circumstances, should be recognized to be hors de combat” alongside those on a person who is so recognized. As the Report of Committee III explains, the test is what “a reason-

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It is listed under (c); the other examples are: “(a) the feigning of an incapacitation by wounds or sickness… (d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.” Examples of ruses of war are: “the use of camouflage, decoys, mock operations and misinformation.” 196 CDDH/236/Rev. 1, para. 19. 197 CDDH/SR. 39, 25 May 1977, para. 64. 198 CDDH/215/Rev. 1, paras. 36, 37; CDDH/SR. 39, paras. 64, 66. 199 CDDH/236/Rev. 1, para. 26; CDDH/SR. 39, paras. 66, 69.

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able man” should have recognized. Paragraph 2 specifies when a person is hors de combat: “if (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape.” The last-quoted phrase represents an important, though indubitably correct restriction on the preceding list of circumstances rendering a person hors de combat. It may indeed be useful to recall that behaviour in contravention of the norm contained in that phrase may amount to a perfidious act as prohibited under Article 37. In its third and last paragraph, Article 41 deals with the exceedingly delicate subject of the release of prisoners who cannot be evacuated. The situation is of course well-known, both in theory and practice, of the unit on patrol which captures a number of adversaries whom it cannot safely and without risk to its mission take along nor evacuate to the nearest post. In such a situation, it is sometimes suggested, the unit would be justified in killing the prisoners – this despite the express requirement in Article 13 of the Third or Prisoners of War Convention of 1949, to treat prisoners of war humanely at all times; prisoners of war who are, according to Article 12 of that Convention, “in the hands of the enemy Power, but not of the individuals or military units who have captured them.” Although the legal situation might therefore seem clear and any suggestion of justification of such killings unwarranted, it is no mean achievement for the Conference to have made the point explicit, in a provision which requires in so many words the release of “persons entitled to protection as prisoners of war” who “have fallen into the power of an adverse Party under unusual conditions of combat which prevent their evacuation” as provided in the relevant Part of the Third Convention, adding that “all feasible precautions shall be taken to ensure their safety.” A special case of being hors de combat is often seen in the situation of the “person parachuting from an aircraft in distress”, the subject-matter of Article 42. This Article provides, first, that no such person “shall be made the object of attack during his descent” and, secondly, that “[u]pon reaching the ground in territory controlled by an adverse Party”, such a person “shall be given an opportunity to surrender before being made the object of attack, unless it is apparent that he is engaging in a hostile act.” Paragraph 3, out of a desire to exclude any possible misunderstanding as to the scope of the preceding paragraphs, cautions that “[a]irborne troops are not protected by this Article.” One obvious conclusion from paragraph 2 is that the person who has reached the ground in territory controlled by his own side may doubtless be made the object of attack; he may, for instance, be fired upon from across the front line, 200 CDDH/236/Rev. 1, para. 23. 201 Ibid., para. 24.

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or he may be attacked from the air. While this is merely stating the obvious, the point to realize is that he may well represent an extremely valuable target. In time of war aircraft crew tend to be in even shorter supply and harder to replace than are aircraft, and it is good tactics for a belligerent Party to seek to eliminate as many enemy crew members as possible. This it can do by attacking them on the ground in enemy-controlled territory, or by simply taking them prisoner once they have reached the ground in territory under its control. A condition for the latter course of action is, of course, that the crew members in question refrain from hostile acts and are in fact willing to surrender. Quite rightly, paragraph 2 of Article 42 provides them with an opportunity to demonstrate this willingness and, thus, to place themselves hors de combat. Indeed, any other solution would be in flagrant contradiction to the principle prohibiting the infliction of unnecessary suffering. Rather less obvious is the situation envisaged in paragraph 1. Will his descent lead a “person parachuting from an aircraft in distress” to enemy-held territory, or to territory under the control of his own side? In the former case, the enemy can simply sit back and wait: once his descent completed, he will be a prisoner in their hands. In the latter hypothesis, however, he will escape the hold of the enemy and in all likelihood will be up in the air again taking part in active combat within the shortest possible time. Must this be allowed to happen? The answer to this question, as provided by paragraph 1, is an unqualified “yes”; the prohibition to attack a person while he is parachuting from an aircraft in distress is not subject to any exceptions. This result was not obtained without some fierce controversy. In the Working Group of Committee III, a group of Arab and other delegations, led by Egypt but of which the Netherlands delegation was also an active member, pressed very hard for a qualifying phrase to be added to the paragraph, worded as follows: “unless it is apparent that he will land in territory controlled by the party to which he belongs or by an ally of that party.” As no consensus could be reached in the Working Group, the text of paragraph 1 was submitted to Committee III with the quoted phrase in square brackets. There, the Egyptian delegate declared himself ready to withdraw his delegation’s proposal, only to be opposed in this by the delegate of Iraq, who “deemed it essential that the phrase between square brackets in article 39 [as it then was] should be retained.” And so it happened: when the proposal to delete the bracketed phrase was put to the vote, this proposal was rejected by 28 to 21 votes, with 21 abstentions. The article as a whole, including the controversial clause in paragraph 1, was thereupon adopted by 47 votes to 6, with 15 abstentions. After the vote, a number of delegations took the floor to explain their votes. Two things emerge with particular clarity from these statements: first, that both sides in the debate advanced valid arguments which, although not convincing to the other side, could not lightly be discarded as evidently ill-founded; secondly, 202 CDDH/III/SR. 47, 31 May 1976, paras. 11-28.

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that the impossibility of reaching consensus and the closeness of the vote on the words in square brackets provided some justification for “the view that the question should be reconsidered at the fourth session of the Conference.” Prior to turning to that occasion, it seems worthwhile to pay some attention to the arguments advanced on both sides. Basically, those who spoke in favour of the qualifying clause argued that a person whose descent will end in friendly territory is not effectively hors de combat during his descent but, on the contrary, is in the process of escaping. His case cannot, therefore, be assimilated to that of the enemy hors de combat of whom Article 41 speaks; indeed, that Article expressly exempts from protection the person who does not abstain from hostile acts or attempts to escape. There is, in short, no humanitarian ground to spare this man: he is a combatant as much as any other. Moreover, the partisans of this view pointed out that practice corroborates their analysis; while instances may have occurred during the First World War when pilots refrained from attacking disabled adversaries descending by parachute, an entirely different practice developed in later armed conflicts, so that the rule as advocated by them could not be said to run counter to any established rule of customary international law. In the opposing argument three considerations were paramount: one, that the crew member descending by parachute is effectively – though admittedly only temporarily – hors de combat for the duration of his descent: a manoeuvre which in no way can be compared to an escape. While this argument provides sufficient ground to include the person in question among those entitled to the protection of Article 41, chivalry was advanced as a second and independent ground requiring the military man to refrain from deliberately attacking an enemy dangling defenceless from a parachute, irrespective of his ultimate landing place. Thirdly, not merely practice but, indeed, customary international law confirms and corroborates this requirement – an assertion in support of which reliance was mainly placed on the non-authoritative and rather dated Hague Rules of Air Warfare, 1922/23, and on the more recent, but hardly more authoritative, British Manual of Military Law. The contest between the two opposing sides thus being largely undecided, both as concerned the outcome of the vote in Committee III and the quality and persuasive force of the arguments advanced, the Committee at the instigation of its Working Group decided during the fourth session of the Conference, first, 203 Report of the Committee, CDDH/236/Rev. 1, para. 29. 204 CDDH/III/SR. 47-48, 31 May/1 June 1976, passim. 205 Ibid. The Hague Rules are found in Schindler & Toman, op. cit. note 21, p. 139 et seq. Rule 20 reads as follows: “When an aircraft has been disabled, the occupants when endeavouring to escape by means of a parachute must not be attacked in the course of their descent.” 206 Report of the Working Group, CDDH/III/391 p. 3.

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to reconsider the Article at issue, and immediately thereafter and without further debate, to adopt a text which no longer contained the controversial formula. As the discussion which led to this radical shift took place in the Working Group, it seems worth quoting from the Report of that Group the argument that appears to have been accepted as decisive: It was felt that an airman descending by parachute is temporarily hors de combat as effectively as if he were unconscious and that it would be inappropriate for a Protocol designed to expand humanitarian protections to authorize making him a legitimate object of attack while in that helpless position.

In the Report of Committee III, this sentence is reproduced without change, and then followed by this cautionary remark: “It went without saying that any airman who, while descending, committed a hostile act, such as firing a weapon at those on the ground, forfeited his immunity from attack.” This sentence once again betrays the misgivings of those who were not so entirely convinced of the complete helplessness of the person in question. Far from being the end of it, the matter once again emerged with full dramatic force in the 39th plenary meeting of the Conference, when the Article on “Occupants of aircraft” came up for final decision. Two amendments had been tabled. One, by the delegation of the Philippines, purported to add at the end of paragraph 1: “unless he commits a hostile act during such descent” – the idea, therefore, expressed in the just-quoted sentence from the Report of Committee III. After a brief discussion, this amendment was voted upon and, failing to muster the required two-thirds majority, rejected. The other amendment, introduced by sixteen Arab delegations, represented a last attempt to reintroduce the restriction originally adopted by Committee III: “Unless it is apparent that he will land in territory controlled by the Party to which he belongs or by an ally of that Party.” A first, strongly worded reaction came from Mr. Jean Pictet, Vice-President of the ICRC and Head of its delegation at the Conference. I quote the following from what he said:

207 CDDH/III/SR. 59, 10 May 1977, para. 8; the vote on the question of reconsideration was 51 to 12, with 14 abstentions; the Article in its revised version was adopted by 52 to 4 votes, with 22 abstentions. 208 CDDH/III/391 p. 3. 209 CDDH/407/Rev. 1, para. 15. 210 CDDH/413. 211 The vote was 29 in favour, 27 against and 34 abstentions; CDDH/SR. 39, para. 85. 212 CDDH/414. 213 CDDH/SR. 39, paras. 88-90.

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So far, the Geneva Conventions had contained only provisions to protect the victims of conflicts; they had not given States any rights against those victims. It would be a matter of infinite regret to the ICRC if a provision which would allow war victims to be killed were included in the purely protective rules. The serviceman who, to save his life, parachuted from an aircraft in distress was a victim, shipwrecked as it were in the air, and that was the idea which should have precedence. Whether an airman landed in friendly or hostile territory, whether he rejoined his unit or was taken prisoner, should remain secondary considerations. A shipwrecked person was a victim of the conflict and should be protected in all circumstances.

With most speakers giving their unqualified support to the statement of so eminent an authority, the Arab delegates maintained their position, as well as their amendment. In support of their position, they advanced two arguments: one, an airman who might just have completed a bombing mission in the course of which he had inflicted great sorrow upon the civilian population deserved no protection; secondly, the comparison with a shipwrecked person was ill-founded as in the situation envisaged in the amendment the aviator was not hors de combat and was attempting to escape. While the first argument, adduced especially by the representatives of former colonies which obtained their independence after a war of national liberation fought against the technically superior forces of the colonial Power, really is inadmissible and diametrically opposed to the very essence of humanitarian law, the latter argument goes to the heart of the matter. If the airman parachuting down is a war victim no matter where he will land, then evidently he should be protected from attack. If, on the other hand, the situation of the airman who is about to land on friendly territory must be considered as analogous to that of the serviceman scrambling from a disabled tank on land, rather than to that of the sailor who is shipwrecked at sea, there seems to be no valid ground for such protection. Put another way, and with all due respect, the statement by Mr. Jean Pictet, starting out from the assimilation of the airman to a shipwrecked person, was really a case of begging the question. Be this as it may, the view presented so eloquently by the representative of the ICRC received overwhelming support, and in the vote which followed, the Arab amendment was defeated by a clear majority: 47 votes to 23, with 26 abstentions. The Article as a whole was thereupon adopted by 71 votes to 12, with 11 abstentions. This dramatic episode concludes our examination of the Section on “Methods and means of warfare” in Protocol I. In sum, the Section contains a number of essential principles and rules which, for the most part, reaffirm existing law. To the extent that they go beyond this, the new rules were mostly adopted by 214 Ibid., paras. 72, 96-97, 103, 106, 108. 215 Ibid., paras. 110, 113.

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consensus and are, moreover, based on realistic considerations. If paragraph 1 of Article 42 perhaps, to some extent, represents an exception to this rule, it is to be hoped that the spirit of chivalry and basic humanity on which it rests will carry it through, so that in the end it will be regarded as part and parcel of the law of armed conflict as much as the other rules on means and methods of warfare and, for that matter, on the protection of the civilian population. 5

General Provisions*

It is now known that the two Protocols will enter into force on 7 December 1978 between the first two states to have ratified them, viz., Ghana and Libya. With that, they will have passed from the stage of law in the making to that of law on the books. Many more ratifications will have to follow before they can have their full effect in those armed conflicts which, regrettable though it may be, will ensue in future. The restraints imposed on belligerents by Protocol I in particular are by no means novel in all respects. On the contrary, as explained above, many of the rules and principles it contains were already part and parcel of the customary international law of armed conflicts. Even so, the agreed formulation of these customary rules has a definite innovative effect, and besides, there are those other rules which are indeed completely new. Ratification by the greatest possible number of states is, therefore, of the utmost importance. It remains to be seen what reservations, if any, will be attached to the instruments of ratification. The Protocols contain no provisions on that subject; in the end, the majority view prevailed that to make reservations is a sovereign right of states which should not be restricted by any express provisions. Nonetheless, in quite a few instances one or other group of states declared a particular rule non-reservable. A case in point is the series of prohibitions on reprisals, contained in the Section of Protocol I on the protection of the civilian population. Except for the primary prohibition of reprisal attacks against the civilian population or civilians as such, these prohibitions encountered a good deal of opposition especially on the part of the Western delegations, and this outspoken opposition often evoked the equally outspoken comment that reservations to these prohibitions would be unacceptable and, indeed, impermissible under the law of treaties. While this is very much a debatable point, it cannot be dealt with fully here: the example merely serves to illustrate the point that the question of reservations was left open and may therefore give rise to problems in the future. Ratification, hopefully with the least possible delay and without any too troublesome reservations, must be followed by the implementation of the Protocols. This will be a task both for peacetime and times of armed conflict. Once again, *

The relative shortness and lack of detail of this chapter is due to a period of illness suffered by the author in 1978.

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this is no novelty: under the customary law regime too, states were supposed to instruct their armed forces in time of peace on the norms they would have to respect in war, and to ensure that the norms were effectively respected in the latter eventuality. In Protocol I, these obligations have been made express and elaborated into a set of detailed provisions regarding dissemination, the role of legal advisers in the armed forces, etc. (Articles 80-84). There are, moreover, rules about outside supervision which supplement and improve upon those already contained in the 1949 Geneva Conventions (Articles 5, 6). Unfortunately, Protocol II provides no more than the passively formulated rule that it “shall be disseminated as widely as possible.” Besides dissemination, application and supervision, Protocol I deals with the repression of breaches – thus, once again, solely for international armed conflicts. In connexion with the subject-matter dealt with in earlier sections of this paper, it is worth noting that certain infractions of the rules for the protection of the civilian population have been included among the acts qualifying as “grave breaches”; listed are, inter alia, “the following acts … when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health: (a) making the civilian population or individual civilians the object of attack; (b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects…” (Art. 85(3)). Also listed and under the same conditions of intent and effect, are infractions of two key provisions of the Section on methods and means of warfare: viz., “(e) making a person the object of attack in the knowledge that he is hors de combat” and “(f ) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protected signs recognized by the Conventions or this Protocol.” It should be noted that perfidy itself (or, rather, in conformity with the text of Article 37: “to kill, injure or capture an adversary by resort to perfidy”) has not been made a grave breach in Article 85. There are, moreover, express provisions concerning failure to act (Art. 86) and the duties of commanders (Art. 87). While Article 86(1) simply provides that breaches (grave and otherwise) of the Conventions or the Protocol “which result from a failure to act when under a duty to do so” must be suppressed, paragraph 2 deals with the important question of the responsibility of superiors. According to the terms of this provision, superiors will bear “penal or disciplinary responsibility, as the case may be” for acts of a subordinate “if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit [such a breach] and if they did not take all feasible measures within their power to prevent or repress the breach.” Their duty to prevent or repress breaches of the Conventions and the Protocol is elaborated further in Article 87. It will be noted that the definition of the circumstances rendering superiors liable for the conduct of their subordinates resembles closely the criteria applied in the well-known Yamashita case.

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Having regard to these elaborate provisions on the responsibility of superiors for acts of a subordinate, it may be surprising to note that Protocol I remains silent on the famous question of superior orders. In point of fact, attempts were made from the very outset to introduce suitable language on this matter into Protocol I, but ultimately without success: no form of words was found which could muster sufficiently widespread support, and it was decided in the end to leave the matter for the time being to further developments, first of all in the sphere of domestic criminal law. On the matter of breaches of the Conventions or Protocol I, attempts were also made to create machinery, preferably somewhere in the United Nations Organization, to expose and condemn violators of these instruments – a role which the ICRC has consistently refused to assume. Greatly watered down, this idea now figures in Articles 89 and 90 of Protocol I. Article 89 states that in “situations of serious violations” of the aforementioned instruments the High Contracting Parties “undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.” As for Article 90, this provides in great detail for the establishment, competence and procedure of an “International Fact-Finding Commission” to be composed of “fifteen members of high moral standing and acknowledged impartiality.” Needless to say, recognition of the competence of the Commission remains optional (para. 2). Its competence consists of two parts: enquiring into alleged grave breaches or other serious violations of Conventions or Protocol, and facilitating, “through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.” While this is a long way off the public “deploring” and “condemning” which the General Assembly of the United Nations is wont to do, it is of course precisely what matters most: more than any amount of condemnation after the fact, an “attitude of respect” for the applicable humanitarian law of armed conflicts will contribute to safeguarding the values it is designed to protect. In sum, the Protocols Additional to the Geneva Convention of 1949 will shortly turn from law in the making to law on the books. Many provisions have been included, especially in Protocol I, with a view to guaranteeing that it will not remain law on the books but will ultimately be capable of becoming law in action. Whether this will actually occur depends on the political will of States. It is for them to ensure that the law is properly disseminated and, in the event of actual armed conflict, respected. To create and maintain this political will is a heavy task for the ICRC, national Red Cross Societies and all other interested organizations and individuals; it will be a task worth pursuing, in view of the fundamental values at stake.

Chapter 10 The Netherlands and International Humanitarian Law Applicable in Armed Conflicts*

1

Introduction

The purpose of this paper is to describe some aspects of the attitude taken by the Netherlands in the recent past with respect to the development of international humanitarian law applicable in armed conflicts. The period chosen is that which begins after the Second World War. For one thing, that war brought an end to the posture of scrupulously maintained neutrality in international relations which the Netherlands had maintained for long years before that event, and for another, much of the law of armed conflict has been re-codified and developed further in the years which have passed since. What should be understood by “international humanitarian law applicable in armed conflicts”? It should be noted at the outset that the term did not even exist at the time of the Second World War and immediately after. The current notion at the time was the “law of war and neutrality”, and this comprised such widely divergent matters as the treaty relations between belligerent parties, the right of belligerents to adopt means of injuring the enemy (a right which Article 22 of the Hague Regulations on Land Warfare, of 1899/1907, stated to be not unlimited), the impact of the war on neutral States, and the treatment of prisoners of war. As compared to the old term, the new one is more restricted on the one hand, and wider on the other. The element of restriction lies in the adjective “humanitarian”. Although no consensus has yet emerged as to its precise meaning, this much is clear, that it has the effect of excluding such matters as the treaty rela-

* 1

Published earlier in H.F. van Panhuys (ed.), 3 International Law in The Netherlands (1980) pp. 289-335. The paper was finished in the summer of 1979. The Regulations respecting the Laws and Customs of War on Land, as their official title reads, are annexed to the Convention (II) with Respect to the Laws and Customs of War on Land signed at The Hague on 29 July 1899 and, in slightly modified version, to the Convention (IV) respecting the Laws and Customs of War on Land signed at The Hague on 18 Oct. 1907. These Conventions with annexed Regulations have been reprinted in D. Schindler and J. Toman (eds.), The Laws of Armed Conflicts (1973) (hereinafter Schindler & Toman) at p. 57 et seq.

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tions between belligerents, the greater part of neutrality law, and the impact of war on the contractual relations between private persons. The new term is wider in that it is applicable, not only when belligerent parties expressly recognize that they are at war in the technical legal sense, but also when active hostilities have in fact broken out between them. The characteristic feature of this factual situation is the existence of victims: wounded, dead, or captured enemy combatants, or enemy civilians in occupied territory. It is precisely the realization that these categories of persons are in need of protection irrespective of how the belligerent parties choose to qualify the situation, which led to the abandonment of the term “war” for that of “armed conflict” at least for that part of the “law of aimed conflicts” where the humanitarian values at stake are predominant. Initially, it could be thought with some justification that this part of the law coincided simply with the subject matter dealt with in the Geneva Conventions of 1949 – although it will be explained below that even at that juncture this was probably too simple a view of the situation. More recent developments have shown even more clearly that the distinction between the law relating to the protection of victims of the armed conflict (traditionally styled the “law of Geneva”) and the law governing the conduct of hostilities (or “law of The Hague”), although a useful tool in describing and analyzing the law of armed conflict, signifies neither a watertight nor a rigid division. 2 The Netherlands as Guardian of the Law of The Hague In the years immediately following the Second World War, two tendencies could be discerned which, although completely opposite in direction, could both be traced to the same common root. This common root was the War itself, with its inconceivably high level of destruction of human values and the general abhorrence it entailed. The two resulting tendencies were, on the one hand, to do away once and for all with the evil phenomenon of war – or, in the language of the preamble to the Charter of the United Nations, to “save succeeding generations from the scourge of war” – and, on the other, to improve and reinforce the law of war in case war might once again come to this imperfect world. The first tendency could be discerned most clearly in the very establishment of the United Nations Organization, with its categorical ban on 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” and its concomitant system of collective security. The other tendency was apparent in the endeavours, initiated as early as February 1945 by the Geneva-based International 2

Not excluded are such matters as the possible role of neutral States as Protecting Powers, the medical assistance these States may provide to the belligerent parties, and their role in accommodating wounded or other prisoners of war.

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Committee of the Red Cross (or ICRC), to revise in the light of recent experience especially that part of the law of armed conflicts which is more particularly designed to protect the victims of war. Prior to the Second World War, this body of law was mainly concentrated in three Conventions: the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, and the Convention relative to the Treatment of Prisoners of War, both signed at Geneva on 27 July 1929, and the Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention (i.e., the Convention of 1906 preceding the first-mentioned Convention of 1929), signed at The Hague on 18 October 1907. Many shortcomings of those Conventions had come to light in the years following their adoption, and the need to revise them was manifest. All three above-mentioned Conventions were concerned with the protection of one and the same category of persons: viz., combatants. No Geneva Convention had been concluded in this pre-war period for the protection of another main category of war victims, viz., civilians in enemy or enemy-held territory. Admittedly, rules especially relating to the latter situation had as long ago as 1899 been incorporated in the Hague Regulations on Land Warfare, of which they formed Section III: “Military Authority over the Territory of the Hostile State”. Even this title indicates that matters of military importance were at stake here; military occupation constituted an important element in the conduct of land warfare, and the fate of the occupied population represented but one aspect of the situation, among other ones that might be of equal or even greater importance. The law of military occupation, in other words, traditionally formed part of “the law of The Hague”. When, therefore, the Swiss Government in 1939 made a last-minute – and ultimately abortive – attempt to convene a diplomatic conference for the adoption of a Convention on the protection of civilians in enemy or enemy-held territory (the draft of which, elaborated by the ICRC, had been accepted by the XVth International Conference of the Red Cross, held at Tokyo in 1934) it took care to ascertain that this did not meet with any objections on the part of the Dutch Government, as the depositary of the Hague Conventions and the one-time host of the Hague Peace Conferences of 1899 and 1907 at which these Conventions had been formulated. The ICRC, in its post-war initiative to revise the law relating to the protection of war victims, obviously did not intend to confine its endeavours to a 3 4 5 6

Schindler & Toman, p. 247 et seq. Ibid. p. 235 et seq. Records of the Conference pp. 202-209; for a brief description of the history of the Tokyo project, see my Belligerent Reprisals (1971) pp. 83-89. Information found in the archives of the Ministry of Foreign Affairs. Here as elsewhere in the present paper, no specific references to sources contained in these archives will be given.

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revision of the existing Geneva Conventions; after all, it had attempted to shift the protection of civilians in enemy hands from “The Hague” to “Geneva” even before the War. Indeed, in its new initiative it intended to include other matters which, although from one point of view falling under the heading of protection of the civilian population, from another were even more directly connected with the conduct of hostilities than was already the case with military occupation: viz., aerial bombardment, the protection of hospitals, and the question of safety zones. As early as 1946, therefore, the ICRC notified the Dutch Government of these aspects of its plans, underlining its realization that this would mean encroachment on the traditional function of that Government as the guardian of the “law of The Hague”. In that same year, the Swiss ambassador in The Hague took up contact with Professor François, the Legal Adviser to the Minister for Foreign Affairs, to find out his feelings on the matter. In an internal note, François laid down his opinion that the Netherlands should take the same position as it had assumed in 1939. In his view, a conference on the revision of the law of The Hague in its entirety would be premature, and the only way in which an attempt to achieve a Convention on the specific subject of the protection of the civilian population could hope to be crowned with success was to place it under the auspices of the Red Cross. There was, moreover, in his view the practical consideration that the Netherlands were not at the time suitably equipped to host a major diplomatic conference. When, therefore, the Swiss Embassy in 1947 officially asked the Dutch Government about its point of view, the response, in conformity with the views of Professor François, was that the matter had best be brought to Geneva. This left, of course, the question of what ought to be done about the remainder – nay, the major part – of the law of The Hague: should the Dutch Government take the initiative to revive the Hague Peace Conferences, in order to achieve the urgently required revisions of that branch of the law? Or could another forum be expected to assume this charge? A possible alternative forum was the International Law Commission, established in November 1947 by the General Assembly of the United Nations under Article 13(l)(a) of the Charter. In the course of its first session (12 April - 9 June 1949) Professor François, member of the Commission, accordingly raised the question whether the law of war should be included among the topics to be taken on by the Commission. Interestingly, the decision on this question was taken on 20 April 1949: one day before the 1949 Diplomatic Conference on the revision of the Geneva Conventions commenced its work. The decision of the Commission, arrived at by an overwhelming majority, was negative. A variety of reasons had led the majority to their negative stance. The most outspoken opponent of the idea was Professor Koretsky (U.S.S.R.), according to whom the mere supposition that a new war was at all conceivable would have the effect of enhancing its possibility: to re-codify the law of war would be tantamount to warmongering: an activity to which no organ of

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the United Nations could lend itself. Several other members likewise felt that a revision of the law of war could not be a task of the United Nations, which had been created to secure peace in the first place. A few members held somewhat less negative views: thus, Professor Scelle (France) argued that, while the prohibition of war under the Charter precluded a codification of the law of war, rules could and should be established for the regulation of armed conflicts. Professor Brierly (U.K.), although accepting the need to re-codify the law of war, felt that the International Law Commission, as a body composed exclusively of lawyers, was not the right forum to assume that task. Two members reserved their views: Mr. Sandstrom (Sweden) wished to await the outcome of the Diplomatic Conference and Mr. Amado (Brazil) the examination of the Nuremberg principles. The Chinese member, Hsu, was the only one who expressed himself unreservedly in favour of a positive decision. In his report to the Dutch Minister for Foreign Affairs, Professor François pointed out that the first subject to be broached in a revision of the law of The Hague would be the use of weapons of war and, with that, the sensitive question of nuclear weapons. He also pointed to the recent Dutch military actions in Indonesia and the adverse effect these might be expected to have on any particular insistence on the part of the Dutch Government in the matter of taking up the revision of the law of The Hague. The latter consideration had restrained him, he added, from putting up any particularly strong defence of the case in the Commission and attempting to refute the arguments of his opponents. Yet, he felt that both the work of the Diplomatic Conference and the (negative) decision of the International Law Commission might result in a renewed interest in the revision of the law of warfare. As he would deplore it if the task which the Netherlands had hitherto performed in this field should pass into other hands, he suggested that the Dutch delegation at the Diplomatic Conference might sound opinions with respect to a possible Dutch initiative to resume the work of the Hague Peace Conferences as a complement to the Red Cross Conventions. The Dutch Government duly transmitted this suggestion to the delegation at the Geneva Diplomatic Conference, and the Head of the delegation discussed the matter informally with representatives of some other delegations, among wom those of Belgium, the United Kingdom and the United States of America. The reactions of these representatives were reticent: they had no instructions in the matter, and they felt that this was a question which directly regarded their governments. This much became clear, however, that any attempts to revise the Hague Conventions could be officially undertaken only with the consent of the Dutch Government. With that, the matter of a formal resumption of the work of the Hague Peace Conference came to rest. Soon after the Diplomatic Conference of 1949, it became apparent that the Dutch Government had lost its traditional role as guardian of the Hague law to an even greater extent than may be apparent from the above. The 1949 Civilians

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Convention, although dealing to a large extent with matters which previously had found a place in the Hague Regulations of 1899/1907, did not in any way purport to provide legal solutions for the entire, complicated set of problems formed by the protection of the civilian population from the hardships of war. The question which had remained most conspicuously open, and which indeed had been beyond the scope of the Conference, was that of the impact on the civilian population of military operations against enemy territory (and which basically could assume the shape, either of collateral damage to civilians or civilian objects in the event of attacks on military objectives situated in the territory, or of attacks directed against the civilian population itself ). The Diplomatic Conference had hardly closed its doors when the ICRC announced its intention to take up this question. Initially, its initiative was directed to the threat posed by nuclear and other weapons of mass destruction in particular. Later on, when it had become apparent that this was not a profitable course to take, the ICRC shifted its emphasis towards the general protection of the civilian population – even, more or less expressly, to the exclusion of questions of nuclear warfare. Evidently, this new initiative brought the ICRC even more directly on to the terrain of the law of The Hague than it had been with the earlier one. The field of activities which it sought to regulate now, although for understandable reasons indicated as that of the humanitarian protection of the civilian population from the risks of war, in effect was that of warfare proper, including both land and air warfare and even, to a small extent, sea warfare (bombardment by naval forces). Moreover, in the course of time it became apparent to the ICRC that other aspects of the law of warfare had to be included as well, notably the definition and legal status of combatants and the rules governing combatant behaviour towards the adversary. Indeed, once it had embarked upon the latter course it found, much to its regret, that even questions of prohibited use of specified conventional weapons could not be prevented from entering the debate. The ICRC, in other words, had step by step invaded and effectively occupied most of the domain which previously had been under the guardianship of the Dutch Government. Only too well aware of this, the ICRC in the early seventies asked the Dutch authorities whether they wished to retain the right to convene a diplomatic conference where the draft texts which were being prepared would be given their final shape. Once again, the Dutch answered this question in the negative; they 7 8

9

Convention (IV) relative to the Protection of Civilian Persons in Time of War, signed at Geneva on 12 Aug. 1949; Schindler & Toman, p. 417 et seq. The present author uses this term to indicate that part of the law of armed conflicts which specifically regards “wartime violence and other activities constituting warfare in a strict sense”; see his The Law of Warfare (1973) pp. 24-26. See, for a fuller account of this history, the articles by the present author in NYIL, vols. 2 (1971) pp. 68-90, 3 (1972) pp. 18-61, 5 (1974) pp. 3-34, 6 (1975) pp. 77-102, 7 (1976) pp. 197-206, 8 (1977) pp. 107-135, and 9 (1978) pp. 107-171.

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felt that, as a member of NATO, the Netherlands was not particularly well suited to host such a conference; nor did they wish to incur the expenditure involved in such an exercise. As a consequence, it was once again the Swiss Government which convened, and acted as host to, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 1974-1977) which ultimately resulted in the adoption, on 8 June 1977, of two Protocols Additional to the Geneva Conventions of 1949 – one “relating to the protection of victims of international armed conflicts” (Protocol I), and the other “relating to the protection of victims of non-international armed conflicts” (Protocol II). The above picture of the attitude of the Dutch Government with respect to its one-time role as guardian of the law of The Hague should be touched up in one, relatively minor respect. In the period under consideration, the Netherlands hosted the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, convened by UNESCO and held at The Hague from 21 April to 14 May 1954. This Conference resulted in the adoption of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, with annexed Regulations for the Execution of the Convention, and of a separate Protocol on the specific question of the exportation of cultural property from occupied territory. Prior to this Convention, the protection of cultural property was (inadequately) regulated in Article 27 of the Hague Regulations of 1899/1907, and hence the matter properly belonged to the law of The Hague. Significantly, however, while the Conference was in effect held at The Hague, the Dutch Government was not assigned the task of acting as depositary to the new instruments: rather, this was entrusted to the Director-General of UNESCO. 3 The Geneva Conventions of 1949 and the Additional Protocols of 1977: Scope of Application While the older treaties on the law of war had either expressly or implicitly been applicable in “war” between contracting States, the scope of application of humanitarian law became a major issue in the post-war attempts at revision and extension of these instruments. 10

11 12 13

For text of the Additional Protocols, see Report of the Secretary-General, Respect for Human Rights in Armed Conflicts, UN Doc. A/32/144 (1977); 17 IRRC (1977) pp. 3-101; 16 ILM (1977) pp. 1391-1449. Schindler & Toman, p. 529 et seq. Thus, the Hague Conventions and annexed Regulations on Land Warfare, 1899/1907; the Geneva Gas Protocol of 1925 (Schindler & Toman, p. 109 et seq.). E.g., the first Geneva Convention for the Amelioration of the Wounded in Armies in the Field, signed at Geneva, 22 Aug. 1864, Schindler & Toman, p. 203; the Geneva Wounded and Sick Convention of 1929, ibid. p. 291.

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In the Diplomatic Conference of 1949, it proved fairly easy to agree on a form of words which placed beyond doubt that the Geneva Conventions of that year would be applicable “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by them”, as well as to “all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance” (Art. 2 common to the four Conventions). Somewhat more discussion was needed to find a solution for the problem of how to make the Conventions applicable in relation to belligerent Parties who would not be a party to the Conventions. Several suggestions were put forward, among which a Belgian amendment to the effect that such applicability would only arise when these Parties would “accept to be bound by the principles” of the Conventions. The amendment was defeated, and a formula was accepted which requires the Parties concerned to “accept and apply the provisions” of the Conventions (Art. 2(3)). The Dutch delegation, it should be noted, took no part in this discussion. Far graver problems arose when an attempt was made to realize an idea which had become widely accepted even before the Second World War – and notably at the time of the Spanish Civil War – that the Geneva law ought to be applicable even in situations of civil war. It is not here the place to describe at any length the post-war drafting history of what ultimately became Article 3 common to the four Geneva Conventions of 1949. It started as a proposal on the part of the ICRC to provide that in the event of civil war the parties to the conflict would be invited to declare their intention to apply the principles of the Conventions on condition of reciprocity. This was followed by the view of the preliminary Conference of national Red Cross societies (26 July – 3 August 1946) that the Conventions ought to be applicable in such an event unless one of the parties expressly declared its refusal to do so. It eventually assumed the shape of a separate Article laying down no more than a few basic principles which the parties to an internal armed conflict are required to respect, leaving it to the parties concerned to agree on the application of (parts of ) the full Conventions. In the course of the proceedings which led up to this outcome, the Dutch authorities more than once had to determine their attitude with respect to this question. The first occasion was the Conference of Government Experts, convened by the ICRC from 14-26 April 1947. In Committee I, charged with examining the proposed revision of the Geneva Wounded and Sick Convention of 1929, the Dutch delegate expressed the view of his Government that the text proposed by the Conference of national Red Cross societies was too wide. 14 15

Final Record of the Diplomatic Conference of Geneva of 1949, vol. III p. 27 (hereinafter: Final Record). Ibid., vol. II, section B p. 55.

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What had to be applied in the event of internal armed conflict, he said, was not the Convention but its principles. This idea met with some sympathy in the Committee. What happened, however, was that Committee III (charged with the question of the protection of the civilian population) developed ideas regarding the scope of application of the draft Civilians Convention which differed widely from the proposal contained in the draft for a revised Wounded and Sick Convention, in making application in internal armed conflicts subject to reciprocity. In Committee III, the Dutch delegation remained utterly silent. When the Bureau of the Conference subsequently selected the Committee III formula as the one it preferred for all four Geneva Conventions, the Dutch experts once again remained silent when the matter was brought up in plenary for decision (which was achieved without further discussion). Following this Conference, an interdepartmental committee in the Netherlands examined the question once again. Some of its members objected strongly to the element of reciprocity which at the instigation of Committee III had found its way into the draft texts emanating from the Conference of Government Experts, whereas other members felt that it might provide a strong incentive for both parties to the conflict to respect the Conventions. The committee went much further when it came to examining the feasibility of applying the projected Prisoners of War and Civilians Conventions to situations of internal armed conflict. The nearly unanimous opinion was that this application would be extremely difficult to achieve. Therefore, the overwhelming majority of the committee voted in favour of deleting the proposed applicability of these two Conventions in internal armed conflicts. In the Diplomatic Conference, the Dutch delegation, perhaps somewhat surprisingly, did not express any specific opinion with respect to the various proposals in this matter, which followed one after the other in rapid succession. The explanation of this strikingly reticent attitude lay, once again, in the Indonesian affair: in the light of the recent events in that country, the delegation had considered it best to keep silent on this touchy subject. Towards the very end of the Conference, the Head of the Burmese delegation undertook a last-minute attempt to torpedo the Article on non-international armed conflicts just as it had finally emerged from the discussions. When at his request the vote was taken by secret ballot, the Dutch delegation cast its vote in favour of the Burmese proposal and thus against the text of what eventually became common Article 3: so 16 17 18 19 20

Procès-verbaux de la Conférence d’experts gouvernementaux pour l’étude des conventions protégeant les victimes de la guerre, Genève 14-26 avril 1947, vol. II pp. 5, 6. Ibid., vol. IV pp. 188-195. Ibid., vol. V pp. 10-16. Ibid., vol. I p. 32. Final Record, vol. II, section B, p. 339; the proposed Article was adopted by 34 votes to 12, with one abstention.

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strongly did recent experience influence the Dutch attitude in this important matter. The Dutch were no longer so inhibited when the scope of application of the rules of international humanitarian law applicable in armed conflicts once again became an issue, this time in the context of the attempts, undertaken in the 1970s, to “reaffirm and develop” important parts of that body of law. Accordingly, consecutive Dutch delegations, first to the 1971 and 1972 sessions of the preparatory Conference of Government Experts and subsequently to the 1974-1977 Diplomatic Conference were able to take a far more active part in the proceedings of these Conferences. A first question to arise was whether in the elaboration of new instruments the distinction between international and non-international armed conflicts should be retained at all, or, in other terms, whether there should be one or two additional Protocols as the outcome of the exercise. The single-Protocol solution, advocated by the Norwegian experts already at the first (1971) session of the Conference of Government Experts, was not such a novelty after all; it actually amounted to little more than a repetition of the arguments heard at the 1949 Diplomatic Conference that the Geneva Conventions should be fully applicable in all situations of armed conflict. Just as in 1949, though with far less debate, the Norwegian idea was discarded at an early stage of the proceedings as unworkable and unacceptable in a world of sovereign States, and the Dutch experts readily joined in this chorus. The distinction between the two classes of armed conflict thus being retained, the difficulty arose anew of finding a suitable dividing line between the two, and on top of that, of defining in somewhat more precise terms than had been used in common Article 3 (“an armed conflict…”) the threshold of application for the additional Protocol on non-international armed conflicts. As for the dividing line between international and non-international armed conflicts, the Dutch experts initially were of the opinion that certain specific factors could and should have the effect of turning an armed conflict waged within the territory of a single State into an international one: the level and intensity of the conflict (the Spanish civil war being the most prominent case to come to mind) and large-scale outside intervention, whether on the side of the incumbents or the insurgents (and here one might think of the war in Vietnam). Admittedly, common Article 3 urges the parties to a non-international armed conflict to “endeavour to bring into force, by means of special agreements, all 21

22

Report on the work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 24 May - 12 June 1971), published by the ICRC (1971, hereafter cited as Report on the work of the Conference) p. 20: para. 21 of the report on the first plenary sessions; pp. 35, 36: paras. 111 and 133 of the report of Commission II; p. 61: CE/Com.II/1-2-3: proposals submitted by the Norwegian experts. Ibid., p. 20: para 22; p. 35: para. 112; p. 36: para. 134.

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or part of the other provisions” of the Geneva Conventions; and it may perhaps seem a reasonable expectation that parties to an internal armed conflict will be most readily so prepared in the face of situations presenting the above characteristics. This did not appear enough, however; besides the mere appeal to the parties contained in common Article 3, a legal obligation in these situations to apply the rules governing international armed conflicts seemed called for. As the Dutch experts, along with their colleagues holding similar views, were soon to find out their ideas did not, however, find any widespread acceptance, and they had to be abandoned entirely. Much as they had favoured the above extension of the scope of application of the rules written for international armed conflicts, the Dutch participants in the discussions were strongly opposed to another idea which, having originated in the decolonization process, had won widespread support in the United Nations. The idea was expressly to include so-called “wars of national liberation” in the category of international armed conflicts. These wars, and notably those having their place in the decolonization process, have an unmistakable international aspect in that they are based on the principle of self-determination and therefore represent a matter of international concern. Equally unmistakably, however, they are (or were) waged on a territory which the colonial Power regards as part of his undivided State territory and which, at all events, is not under the sovereignty of another State. It was not, therefore, entirely self-evident that such wars ought to be considered as international armed conflicts even where humanitarian law was concerned. Along with numerous, mainly Western colleagues, the Dutch representatives kept up their endeavours to ward off this perceived threat to humanitarian law as long as they could: that is to say, till the end of the first (1974) session of the Diplomatic Conference. At that juncture, the proponents of an international status for wars of national liberation forced the matter to a vote in Committee I, and as they counted among their supporters virtually the entire Third World and the Communist States, the overwhelming majority by which they won the vote was a foregone conclusion. Although this was merely a decision on the Committee level and the decision yet stood to be ratified by the plenary Conference, the matter had for all practical purposes been settled once and for 23

24

Ibid., pp. 48-52: report of Commission II, Chapters V and VI; Report on the work of the Conference, second session (Geneva, 3 May - 3 June 1972}, published by the ICRC (1972, hereafter cited as Report on the work of the Conference, second session), vol. I pp. 97-100: report of Commission II, Chapter VIII. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. Geneva (1974-1977), published by the Swiss Federal Political Department (1978; hereinafter cited as OR), vol. VIII p. 102: summary record of the 13th meeting of Committee I, 22 March 1974; the vote, taken by roll-call, was 70 to 21, with 13 abstentions. The Netherlands was among the votes against.

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all. The Western and other opposing delegations gradually “learned to live” with the new situation – which, as they quickly perceived, was not likely to affect their countries more than marginally in the foreseeable future (the remaining cases of possible application being South Africa, Rhodesia and Israel). When Article 1, with its fourth and final paragraph containing the erstwhile hotly debated text, came up for final approval in Plenary during the fourth session, this approval was given without further ado: 87 votes were cast in favour, one against (Israel), while eleven, mostly Western, delegations abstained. The Netherlands had meanwhile so completely reconciled itself to the new situation that its delegation was among those who cast their vote in favour of the Article. It proved equally difficult to resolve the question of the scope of application to be given to Protocol II in non-international armed conflicts. Dutch experts were among those who took as their point of departure that the same openended formula found in Article 3 common to the four Geneva Conventions of 1949 should be used here too. To require nothing but the existence of “an armed conflict” would, so they felt, preserve the required flexibility of application of Protocol II and would leave open the possibility of applying it in the most diverse situations, much the same as was the case under Article 3. It soon became abundantly clear, however, that this idea stood no chance of being accepted by any significant majority – let alone by consensus – and that a great many delegations were set upon building into the Protocol a threshold which would effectively protect them from any undesirable claims that a situation of large-scale violence in their country, which they themselves chose to regard as entirely a domestic affair, did in fact amount to an internal armed conflict as defined in the Protocol. In this context, the argument of the sacredness and inviolability of national sovereignty was of course heard over and over again. It also became apparent that quite an important group of States were not at all keen on having a Protocol expressly dealing with situations of non-international armed conflict. The Dutch authorities, on the other hand, were among those who wished to have every effort made to arrive at a Protocol II which would be accepted on the widest possible scale. It therefore became a matter of delicate manoeuvring to save the Protocol from total defeat, while at the same time providing it with sufficient “body” on the one hand, and, on the other, with a threshold which would not make it all but inapplicable save in the rarest instances of “declared civil war”. At the Diplomatic Conference, members of the Dutch delegation contributed actively to these delicate negotiations, always keeping the goal in mind of a Protocol that could attract the widest possible adherence, while having the lowest threshold and the heaviest payload practicable. At the same time, they had themselves an open eye for certain requirements of sovereignty and “law and order” in a conflict-stricken country. Thus, although strongly in favour of provisions guar25

OR vol. VI p. 41: summary record of the 36th plenary meeting, 23 May 1977.

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anteeing humane treatment to all persons affected by the conflict, they were not prepared to accept the idea that persons who took an active part in the hostilities should be immune from punishment for that fact alone, much the same as prisoners of war in an international armed conflict cannot be punished for the mere fact of having committed acts of war prior to capture. Instead, they firmly stuck to the idea that the application of penal sanctions should be retained as one of the instruments at the disposal of the authorities charged with the maintenance of law and order. Towards the very end of the Diplomatic Conference, in a dramatic coup, many of the detailed provisions of Protocol II which had been drafted and accepted in the respective Committees were discarded in favour of a highly simplified version, prepared and presented in Plenary as an amendment by Pakistan to the draft Protocol in its entirety. As the idea of a drastically simplified Protocol II was widely supported, especially among the delegations of the conflict-prone Third World countries, the outcome of the debate was more or less a foregone conclusion. Indeed, the Dutch delegation felt so completely overwhelmed by the onslaught that it kept silent for most of the debate in Plenary, merely attaching a few “understandings” in written explanations of vote after certain particularly important draft articles had been deleted by consensus. Finally, when the whole of Protocol II as amended was adopted by consensus, the Dutch delegation not only did not object but did not even consider it necessary to give vent to its feelings, whether by a statement in Plenary or a written explanation of vote. While, thus, the outcome of the endeavours is a greatly reduced and, indeed, emaciated Protocol II, it is on the other hand provided with a rather formidable threshold. This is to say that the attempts to arrive at a fairly low threshold, or even no other “threshold” but the existence of “an armed conflict”, failed to achieve success. The text of Article 1, although not free from some ambiguity, is likely to be interpreted in such a way that it will not cover all those many cases of internal struggle which, although entailing widespread and large-scale violence and great numbers of victims, do not present the characteristics of a civil war in the strict sense. These cases will thus be kept outside the scope of application of Protocol II – and will at best be governed by Article 3 common to the Geneva Conventions of 1949, which Protocol II was intended to “reaffirm and develop”.

26 27

OR vol. VII pp. 101, 122, 162. OR vol. VII p. 205.

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4 The Geneva Conventions of 1949 and the Additional Protocols of 1977: Substantive Issues 4.1

Combatants and Resistance Fighters

The armies in the field, whose wounded and sick the very first Geneva Convention, of 1864, was designed to protect, were those bodies of men, conspicuous by their arms and uniforms, who at the time constituted the regular armies of States. They were easy to recognize and their combatant status was never a matter of doubt. Yet, even in those days other men besides the members of regular armies tended to get actively involved in hostilities. This happened, for instance, when inhabitants of an occupied territory took recourse to violent resistance against the occupying forces. In 1899, when the Hague Peace Conference set itself the task of codifying the law of land warfare, a first question to be settled was that of the qualifications for combatant status. As a matter of course, the Conference accepted that “the laws, rights, and duties of war apply … to armies.” Without too great difficulty, it accorded the same status to “militia and volunteer corps” not forming part of the army but fulfilling the four cumulative conditions of being under responsible command, having a fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting their operations in accordance with the laws and customs of war (Art. 1, Hague Regulations). However, the problem of armed resistance on the part of inhabitants of occupied territory proved too difficult for the Conference to resolve. In the end, it disentangled itself from the problem by adding a preambular paragraph to the Convention on Land Warfare. This so-called “Martens clause” reminds the parties at war that with respect to those questions which the Conference had been unable to resolve, “populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established by civilized nations, from the laws of humanity and the requirements of the public conscience.” The experience of the Second World War, with its widespread armed resistance in many European countries, demonstrated all too clearly the deficiencies of this admonishment as a means to protect the resistance fighters in occupied territory from harsh revenge on the part of the occupying Power. However, the terms of reference of the 1949 Diplomatic Conference did not extend to a complete revision of the Hague Convention with annexed Regulations. On the other hand, they did include the revision of the Prisoners of War Convention of 1929. 28

The text quoted here is that of the English translation of 1899; it differs slightly from the usually quoted version of 1907, which reads as follows: “[T]he 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 the public conscience.” Schindler & Toman, p. 64.

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Therefore, the question at issue was brought up, not as one of granting combatant status but in the context of the extension of prisoner-of-war status to categories of persons who had not previously been entitled to that status under the terms of the Convention of 1929. Despite the general sympathy for the resistance fighters of the Second World War, there was little inclination to grant the resistance fighter prisoner-of-war status irrespective of how he organized and conducted his resistance activities: it seemed evident that like militias and volunteer corps, he too would have to meet certain conditions. Indeed, there existed a strong current of opinion at the Diplomatic Conference that resistance movements ought to be subjected to far more precise and detailed requirements than those governing the status of the militias and volunteer corps of the Hague Regulations. Farthest on this road went the British delegation, which at various stages of the Conference introduced draft texts listing a great many conditions relating to the territory where the movements would operate, information concerning the distinctive sign to be worn, capacity of their headquarters to be communicated with and to reply to communications, and to exercise effective control of lower formations and units, etc. In the course of the confused debate which ensued, the British delegation finally reduced its requirements to the condition “that the Government or the responsible Authorities which the organization acknowledges have notified the Occupying Power through a means by which they are able to make and reply to communications, of its participation in the conflict and of the distinctive emblem which its members wear” – it being understood, of course, that the four conditions of Article 1 Hague Regulations would remain intact. Among the opponents to this and similar proposals, the Dutch delegate Captain Mouton was probably the most effective in contributing to the final solution of the problem. In the course of the debate, he submitted an amendment which proposed to delete the separate sub-paragraph on resistance movements which the proposals before the Conference contained, and instead to insert language into the first sub-paragraph which would make it clear that resistance movements operating in occupied territory would be entitled to prisoner-of-war status under the same conditions as the militias and volunteer corps operating in non-occupied territory. This idea finally won general acceptance, and a text drawn up along these lines was unanimously adopted by the Special Committee of Committee II which had been charged with this particularly difficult problem. In the final version of the 1949 Prisoners of War Convention, it is found in Article 4(A)(2). 29 30 31 32

Final Record, vol. III pp. 60-62. Ibid., vol. III p. 62. Ibid., vol. IIA p. 468: 22nd meeting of the Special Committee of Committee II, 24 June 1949. Ibid., vol. IIA p. 479: 26th meeting of the Special Committee, 7 July 1949.

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Quite obviously, members of resistance movements operating in occupied territory will often find it impracticable to meet the conditions set out in the Hague Regulations and repeated in Article 4(A)(2) of the Convention of 1949; after all, they do not, like the traditional army march into battle with bands and banners. This may lead, first of all, to cases of doubt concerning the status of a captured person. Here, Article 5(2) of the Prisoners of War Convention comes into play. This provision takes the power to decide such cases of doubt away from the man who made the capture or his military superiors, and lays it squarely in the hands of a “competent tribunal”. It should be noted that the latter phrase was substituted for the words “responsible authority” contained in the draft Convention on the proposal of the Dutch delegation, which thus sought to avoid that decisions of such crucial importance would simply be taken by the military commander on the spot. It is also worth mentioning that according to the Dutch proponents of this amendment the decision could be a separate one but could equally be taken in the context of a trial, where a person accused of criminal conduct would claim prisoner-of-war status. In those cases where the “competent tribunal” arrives at a negative finding, or where the lack of prisoner-of-war status is so evident as to leave no room for doubt, a captured resistance fighter will not fall under the IIIrd but under the IVth or Civilians Convention. This is to say that the occupying authorities can punish him for his resistance activities. In doing so, they will have to comply with the provisions on penal sanctions set out in Article 64 et seq. of the Civilians Convention. One among these, Article 68, restricts in its second paragraph the capacity of an occupying Power to impose the death penalty to the severest offences against its vital interests. The paragraph requires moreover “that such offences were punishable by death under the law of the occupied territory in force before the occupation began.” This was too stringent a restriction in the eyes of the delegations of the United Kingdom and several other countries, including the Netherlands, if only because it seemed to provide a party to the conflict whose territory is about to be occupied with the means to deprive its opponent of a powerful sanction, by simply abolishing the death penalty just prior to occupation. The Dutch delegation accordingly co-sponsored an amendment to the draft Article, sponsored by the United Kingdom and with Australia, Burma and the United States as further co-sponsors. The amendment was, however, rejected in Plenary, by 17 votes to 15 with 11 abstentions. 33

34 35

Ibid., vol. III p. 63: text of amendment; vol. IIB pp. 269-272: discussion and adoption of the amendment, as amended by the Danish delegation, in Plenary, 13th meeting, 26 July 1949. In Committee II, the idea had previously failed to find sufficient support; vol. IIA p. 563: Report of Committee II to the Plenary Assembly of the Conference. Ibid., vol. III p. 141. Ibid., vol. IIB p. 431: 27th plenary meeting, 3 August 1949.

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On the 8th of December, 1949, on signing the Geneva Conventions, the Netherlands reserved its right to impose the death penalty in occupied territory, regardless of whether the offences referred to in Article 68(2) would be punishable by death under the law of the occupied territory in force before the time of the occupation. It maintained this reservation on ratification, on 3 August 1954. It should be added that the matter came up for reconsideration in the 1970s. In December 1971, the UN General Assembly adopted two resolutions, one (2853 (XXVI)) inter alia calling upon the States parties to the Conventions “to review, as a matter of priority, any reservations they may have made to these instruments” and the other (2857 (XXVI)) affirming that “in order fully to guarantee the right to life, provided in Article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progressively restricting the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries.” In that same month, moreover, the United Kingdom withdrew its reservation to Article 68(2). These events provoked some interdepartmental discussion on whether the Netherlands ought to follow suit, and this idea found general support. In the end, however, the matter was not pursued any further. A final aspect of the position of resistance fighters in occupied territory concerns their rights of communication under the 1949 Civilians Convention in case of detention by the occupying Power. Article 5(2) provides that such persons “shall, in cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention”, thus effectively depriving the detainee not only of his rights of communication but of his other rights under the Convention as well. For, although technically speaking he remains a “protected person”, he cannot avail himself of any of his rights so long as he is being kept incommunicado. This is obviously a most unfortunate provision, which can only be explained as a somewhat too successful attempt to counterbalance the provisions affording protection to the members of resistance movements. While, thus, the Diplomatic Conference of 1949 had brought important improvements to the position of resistance fighters, there remained quite some room for further improvement. In this respect, the Diplomatic Conference of 1974-1977 did not shirk its responsibilities and succeeded in adding further marked improvements. In doing so, it did not confine itself to resistance fighters; rather, it took into account the entire category of irregular combatants, no matter how named. A first innovation, and probably the most remarkable one, is found in Article 43 of Protocol I. The first paragraph of this Article does away completely with the historical discrimination between regular armies and other armed groups, when it defines the armed forces of a party to the conflict as “all organized armed 36

Schindler & Toman, pp. 481, 497.

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forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates…” The paragraph furthermore requires that such armed forces be “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” Any armed group fulfilling these conditions, whether it be a regular army or a resistance or other guerrilla unit, belongs to the armed forces, and according to paragraph 2 its members “are combatants, that is to say, they have the right to participate directly in hostilities.” As combatants, they are moreover entitled to prisoner-of-war status in case of capture by the enemy (Art. 44(1)), even though they might previously have violated “the rules of international law applicable in armed conflict” (para. 2). The last-mentioned rule of retention of prisoner-of-war status suffers exception, however, with respect to a situation of particular relevance to resistance fighters. The exception arises as follows. Article 44(3), first sentence 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.” The second sentence recognizes “that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself ”, and the records of the Conference show that the situations delegations had in mind and to which they wished to restrict the application of the exception were, either, guerrilla fighters engaged in a war of national liberation, or resistance fighters in occupied territory. Paragraph 3 goes on to provide that even in these exceptional situations the armed combatant shall “retain his status as a combatant” provided that he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.” In the event of his being captured while failing to meet these minimum requirements, however, he “shall forfeit his right to be a prisoner of war” (para. 4). While, thus, the regular combatant continues to hold a small advantage over the irregular resistance or liberation fighter, the position of the latter is far better under the Protocol than it ever was under the Hague Regulations or the Geneva Conventions. Yet, this is not to say that the Dutch delegation at the Conference welcomed the new rules with any particular enthusiasm. True, Dutch experts had suggested as early as 1972 that regular and irregular armies should be placed on an equal footing; but they had added that in their opinion all armed forces ought to fulfil a set of conditions which basically amounted to those of 1899, the sole difference being that instead of the two separate and cumulative conditions of wearing a fixed distinctive emblem and carrying arms openly, armed forces would simply be required to distinguish themselves from the civilian population “whether by carrying arms openly, by wearing a distinctive sign, or by any other

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means.” The virtual abolition of the traditional conditions, implicit in Articles 43 and 44 as finally accepted, was not therefore very much to their liking; and their misgivings were shared by numerous other delegations, mainly of Western countries. In the end, all these delegations with the sole exception of Israel, more or less grudgingly accepted the new rules, much the same as they had earlier accepted the decision that wars of national liberation would henceforth belong to the category of international armed conflicts. Between active participation in hostilities and captivity may lie a more or less long drawn-out transitional phase of being hors de combat. This will be the case, e.g., with the man who, unconscious and wounded, lies on the battlefield. Although he continues to be a combatant, his defenceless position obviously removes the need to attack him. Other cases may be less clear-cut, but the principle has been accepted that any person “who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack” (Art. 41(1) of Protocol I). The Article goes on to define in carefully chosen terms when exactly a person is considered to be hors de combat (para. 2), and it should be added that to find the right language for the various elements of this definition proved not always an easy task. Far greater difficulties arose, however, over the related problem of the person parachuting from an aircraft in distress. This person too, obviously finds himself in a transitional phase: having been forced to abandon his means of combat, he has not yet reached the ground – which, it should be noted straight away, can be in territory controlled by friendly or adverse forces, thus making the difference between liberty and captivity. Should this affect his position during descent? Article 42(1) provides the negative answer to this question: “No person parachuting from an aircraft in distress shall be made the object of attack during his descent.” This text is the outcome of a protracted struggle at the Diplomatic Conference, with numerous Western and other delegations defending the rule as it finally emerged, and a group of mainly Arab delegations wishing to exclude from the protection it offers those persons who are about to land in friendly territory. In this struggle, the Dutch delegation initially joined the Arab side, not because it shared their immediate interest in the matter (they were evidently thinking of 37 38

Report on the work of the Conference of Government Experts, second session, vol. II p. 37: CE/Com.II/25. OR vol. VI p. 121: roll-call vote in 40th plenary meeting, 26 May 1977; the vote was 73 to one (Israel), with 21 abstentions. The Dutch delegation was among those who voted in favour; for its explanation of vote, see id., p. 142: summary records of the 41st plenary meeting, 26 May 1977. Interestingly, Mr. Bloembergen, speaking for the Dutch delegation, emphasized in particular the potentially beneficial effect of the new rules “in situations such as might arise in wars of national liberation”, thus omitting any reference to the situation, more relevant to the Netherlands, of resistance fighters in occupied territory.

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the situation at the Suez Canal) but because it felt that, on realistic appraisal of the situation there was no good ground for a belligerent to be required to refrain from attacking an airman who, no matter how much in distress for the moment, could be expected to join his own forces in the next moment and to resume his activities with the shortest possible delay, as pilot or crew member of another aircraft. A separate vote in Committee III on the phrase containing the above qualification proved to be indecisive: 28 delegations (with the Dutch delegation among them) voted for its retention, 21 against, with 21 abstaining. Therefore, although the Committee immediately thereafter adopted the article as a whole by a large majority (47 votes to 6, with 15 abstentions), there clearly was room for a reconsideration of the issue. In effect, this took place during the fourth session, when Committee III without much ado decided to reverse its earlier decision. This time, the Dutch delegation joined the overwhelming majority (52 votes to 4, with 22 abstentions) which voted for a text not containing the qualifying phrase. Evidently, the lack of immediate interest, combined with the wish to keep in line with the Western partners had inspired this radical shift in the Dutch position. The delegation, it should be added, stuck to its new position when an Arab amendment, introduced in Plenary, sought to reintroduce the qualifying phrase; an attempt which was defeated by 47 votes to 23, with 26 abstentions. 4.2 Civilians: Human Rights Two concerns above all others appear to have determined the Dutch attitude at the Diplomatic Conference of 1974-1977 with respect to the protection of the civilian population: the need to co-ordinate its position with the NATO allies, and the desire to promote human rights. To start with the latter issue, the Dutch delegation was particularly active in the negotiations which ultimately resulted in the adoption of Article 75 of Protocol I. This Article, contained in the Section on “Treatment of persons in the power of a Party to the conflict” (Section III of Part IV, “Civilian population”) is entitled “Fundamental guarantees”, and it is in effect designed to provide a series of guarantees to all persons “affected by” an international armed conflict and who find themselves in the power of a party to the conflict without benefiting from more favourable treatment under the Geneva Conventions or the Protocol. Arguably, this definition includes this party’s own 39

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The Dutch delegation took this position in the Working Group of Committee III, 3rd session; the proceedings of this as of other working groups are not recorded; see, however, OR vol. XV p. 386: Report of Committee III, 3rd session, para. 29. OR vol. XV p. 90: summary record of the 47th meeting, 31 May 1976, para. 25. OR vol. XV p. 210: summary record of the 59th meeting, 10 May 1977, para. 8. OR vol. VI: summary record of the 39th plenary meeting, 25 May 1977, para. 113.

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nationals, provided always that they are “affected by” the conflict, for instance because they side with the enemy before being captured by their own forces. The fact that the text of the Article, although not explicitly saying so, at least can be interpreted in this sense, is surely due in part to the considerable efforts made by members of the Dutch delegation to obtain this result. The Article, which represents a sort of human rights convention in miniature, basically provides two sets of guarantees. One is the general principle of humane treatment without discrimination, elaborated into a series of specific rules which reaffirm and develop the rules already contained in Article 3 common to the Geneva Conventions of 1949 (paras. 1 and 2). The other main group of guarantees protects the person who is “arrested, detained or interned for actions related to the armed conflict” and consists of rules concerning such matters as information about the reasons of detention, the passing of sentences and the execution of penalties (paras. 3 and 4), the treatment of women (para. 5), the duration of the protection afforded by the Article (“until their final release, repatriation or re-establishment, even after the end of the armed conflict”: para. 6) and the prosecution and trial of persons accused of war crimes or crimes against humanity (treatment “in accordance with the applicable rules of international law” and in any event no less than as provided by Article 75, “whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol”: para. 7). Paragraphs 6 and 7, it should be added, were designed, inter alia, in the hope of thereby neutralizing a reservation to Article 85 of the 1949 Prisoners of War Convention, made by the Soviet Union and other communist States; but it remains to be seen whether they will be successful in that respect. In this context of fundamental guarantees, reference should be made once again to Article 5(2) of the 1949 Civilians Convention, which, as explained earlier, tends to deprive, say, a resistance fighter in occupied territory who does not qualify as a prisoner of war, of much if not all of the protection which that Convention provides. Here too, Protocol I brings a marked improvement. Article 45(3) lays down that any person who has taken part in hostilities shall as a minimum be entitled to the protection of Article 75. This already affords some additional protection to the man who has committed acts of resistance in occupied territory, either while not belonging to an “armed force” in the sense of Article 43 or while not distinguishing himself from the civilian population as required by Article 44(3), second sentence. The third paragraph of Article 45 goes on to provide, however, that “[i]n occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.”

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See infra.

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Co-ordination of the Dutch attitude with those of the NATO partners was sometimes difficult to achieve with respect to certain aspects of the protection of the civilian population; and the greatest difficulties of all were presented by the issue of reprisals. The ICRC, in the draft Protocol it had submitted to the Diplomatic Conference of 1974-1977, had made a distinction: reprisal attacks against the civilian population ought to be prohibited but not those against civilian objects. This led to a series of vexing questions: was the distinction realistic? Ought the capacity to take reprisals against a civilian population to be given up at all, even for the eventuality of large-scale violation of the protective rules by the enemy? Should the capacity perhaps be given up only in exchange for another, less drastic and possibly more effective means of law enforcement? Opinions on these questions were divided among NATO countries and even within delegations. Thus, while the French and, although somewhat hesitatingly, the British were opposed to the very idea of a ban on reprisals against the civilian population (and civilian objects, of course), the delegation of the United States was divided on the subject, with the representatives of the Pentagon sharing the view of the French and British delegations but those of the State Department supporting the proposed ban – to the extent, that is, that it would protect the civilian population, not civilian objects. In the Dutch delegation, the situation was exactly the reverse, with the representatives of the Foreign Ministry feeling strongly inclined to follow the lead of the French, and the representatives of the Defence Ministry, supported by an express decision of the Minister, favouring the ban. The initial public stance of the Dutch delegation was a cautious one: support for the proposed ban on reprisals against the civilian population, extension of the ban even to reprisals against civilian objects (on the argument that the distinction would prove to be difficult, if not impossible to respect in practice) but all this under the express proviso that the Conference would find another, better means to enforce the rules for the protection of the civilian population. While no such other mechanism was actually proposed at that stage, it was clear that the delegation was thinking of some system of supervision which, it might be hoped, would even remove the need for recourse to reprisals. It soon became clear that nothing less than an unconditional and complete ban on reprisals against the civilian population and civilian objects alike would be acceptable to a large majority in the Conference. It was also apparent that an equally large majority was not prepared to accept machinery that could effectively act as a subsidiary means of law enforcement. In these circumstances, the Dutch delegation was forced to reconsider its position and to answer the ques44

OR vol. XIV p. 113: summary record of the 14th meeting of Committee III, 6 Feb. 1975, para. 26 (Mr. Kalshoven).

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tion of whether it would go along with the majority view or join the opposition. After some heated debate and after a personal intervention by the then State Secretary for Foreign Affairs, Dr. P.H. Kooijmans, the matter was finally and definitively decided in favour of an endorsement of the categorical ban sought by the majority of delegations. This ban ultimately found its place in diverse Articles of Protocol I: in Article 51(6) for reprisal attacks against the civilian population; in Article 52(1) for reprisals against civilian objects, and in Articles 53-56 for reprisals against a variety of particular objects, viz., cultural objects and places of worship, objects indispensable to the survival of the civilian population, the natural environment, and works and installations containing dangerous forces. The last-mentioned category of objects comprises, according to Article 56, “dams, dykes and nuclear electrical generating stations” (para. 1). For obvious reasons, the Dutch delegation felt a particularly keen interest in the dykes – an interest it shared for once with Vietnam. In view of this interest, the Dutch delegation went to great trouble to arrive at a text which would provide adequate protection for this particular class of objects. To be sure, a dyke does not normally represent a military objective – but a column of infantrymen or tanks on the dyke road does, and attacks against these or similar targets may easily cause severe damage to the dyke as well. Here, the principle of proportionality prevails: in no event may the amount of collateral civilian damage resulting from attacks against the targets on or near the dyke be “excessive in relation to the concrete and direct military advantage anticipated” as a result of the attacks (Art. 57(2)). Then, a dyke may itself become a military objective when, in the terms of Article 52(2), by its “nature, location, purpose or use” it makes “an effective contribution to military action” and its “total or partial destruction … in the circumstances ruling at the time, offers a definite military advantage.” Again, attacks on the dyke would then have to respect the proportionality rule mentioned a moment ago. In either case, however, the obligation not to cause excessive collateral damage does not amount to a sufficient protection of the civilian population from the very grave dangers it incurs if the forces of the water contained by the dyke are released. Hence the need for special protection of dykes (and dams and nuclear power plants), irrespective of whether they themselves represent, “in the circumstances ruling at the time”, a military objective. Accordingly, Article 56(1) lays down the dual principle that the named objects “shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population”, and that also “other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack” if the attack may lead to the identical unacceptable result. While the above does not provide an absolute immunity from attack (the condition being that the attack “may cause the release” of the dangerous forces

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concerned and consequent severe civilian loss), further limitations of this conditional immunity are set out in paragraph 2 defining the circumstances in which the special protection ceases altogether (leaving only the rules relating to the general protection of the civilian population and civilian objects). Confining ourselves to the dyke in particular, its special protection against attack shall cease “if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.” This form of words has been the outcome of protracted negotiations, in which Dutch delegates took an active part. Their concern was to avoid a situation whereby an adversary could lift the special protection of a dyke as soon as the dyke road (which is a common feature of many Dutch dykes) would be used by military traffic, no matter with what intensity and in what ratio to civilian use. The quoted phrase “may be less clear than is desirable”, as the Report of Committee III notes, and it continues: The term means the function of holding back, or being ready to hold back, water. Thus, if a dam or dyke is used for no purpose other than holding back water or being ready to hold back water, e.g., it is not made part of a fortified line or used as a road, the immunity from attack provided in paragraph 1 cannot be lost. Even if it is used for a function in addition to its normal function, the immunity is not lost unless it is used in regular, significant and direct support of military operations and if the only feasible way to terminate the support is by attack on the dam or dyke. In addition, it must always be recognized that an attack is not justified unless the military reasons for the destruction in a particular case are of such extraordinary and vital interest as to outweigh the severe losses which may be anticipated.

“Nevertheless” – the Report concludes with some regret – “it should be noted that some representatives remain concerned about the problems that may arise from the use of dykes for roadways.” The Dutch were evidently among these concerned representatives, and the Dutch representative in Committee III gave vent to the misgivings entertained by his delegation when he said that “there were still some ambiguities in paragraph 2 … which should be read in connexion with the generally accepted explanation attached to it.” He also expressed his delegation’s support for the statement in the Report “that in cases where a great many people would be killed and much damage done by the destruction of a dam or dyke, immunity would exist unless the military reasons for destruction in a particular case were of an extraordinary vital sort”, and he concluded by stating that his delegation considered the interpretation offered by the Rapporteur to be the

45

OR vol. XV p. 283: report of Committee III, 2nd session, para. 88.

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correct one and that its support of the consensus on the Article “had been based on that assumption.” Besides this concern about the possibly disastrous effect of an attack against our dykes, the Dutch delegation had another concern which, actually, was diametrically opposed to the first one. It was the fear that the Article, as originally drafted, would deprive the Netherlands of its capacity to inundate part of its territory in order to deprive the enemy of its use. In a combined Belgian-Dutch amendment it was therefore proposed to open the Article with the phrase “Without prejudice to the rights of the High Contracting Parties in their own territories”, which would thus precede the prohibition “to attack or destroy” the works and installations in question. The amendment was not retained, nor was there any longer a need for it, once the verb “destroy” had ceased to be mentioned separately besides “attack”. The final version of Article 56(1), in forbidding to make the dams, dykes and nuclear power plants the object of attack, leaves the Netherlands entirely free to resort to inundations if it so desires. 4.4 Weapons Returning once again to the Diplomatic Conference of 1949, the Soviet Union had at that stage consistently defended the view that the general protection of the civilian population against the effects of hostilities was as much within the competence of the Conference as was the revision of the Geneva Conventions of 1929 and of the rules on occupation contained in the Hague Regulations. Equally consistently, the Conference as a whole refused to assume this wider task, which was not comprised in its terms of reference. In this context, it is of particular interest to note the endeavours of the Soviet delegation at the Conference to raise the issue of atomic, bacteriological and chemical weapons. First in Committee III and then in Plenary, it tabled a draft resolution which would have the Conference decide that “the employment in any future war of bacteriological and chemical means of warfare and of atomic and other weapons designed for the mass extermination of the population is incompatible with the elementary principles of international law and the conscience of

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OR vol. XIV p. 306: explanation of vote, summary record of Committee III, 31st meeting, 14 March 1975 (Mr. Schutte). OR vol. III p. 223: CDDH/III/59, 19 March 1974; reintroduced with some modifications which did not however affect the opening phrase, 7 Feb. 1975; p. 225: CDDH/ III/59/Rev. 1.

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peoples.” Each time, the draft resolution was declared to be outside the scope of the Conference and, hence, non-receivable. The arguments for the refusal were set out, first of all, in a letter signed by fifteen delegations from various parts of the (non-communist) world and addressed to the President of the Conference. Somewhat conspicuously, neither the Dutch delegation nor those of Belgium and Luxemburg were among the signatories. This did not signify any support on their part for the Soviet initiative, though. The Dutch delegation had been notified of the intention to write the letter at a rather late stage and had then wished to co-ordinate its position with those of Belgium and Luxemburg, its partners in Benelux. While the Belgian delegates hesitated and those of Luxemburg were absent, the time to sign the letter had passed. Thereafter, however, the three delegations notified the Secretary-General of the Conference that they associated themselves with the point of view expressed in the letter of the fifteen delegations. In the deliberations of the 1970s, the question of nuclear and other weapons of mass destruction was occasionally broached by this or the other expert or delegate. The matter was never taken up seriously, however, for fear that some if not all of the Big Powers would immediately quit the scene. On the other hand, conventional weapons were not counted to be so wholly outside the sphere of competence of the series of conferences which culminated in the 1974-1977 Diplomatic Conference. Prohibitions or restrictions on the use of specified conventional weapons were not contained in the proposals and suggestions which the ICRC submitted to government experts in the early seventies. Already at the first, 1971 session of the Conference of Government Experts, however, the matter was brought up from various sides. Thus, the experts of Mexico, the Netherlands, Sweden, Switzerland and the United Arab Republic submitted a working paper which provided an outline of an instrument on the protection of the civilian population against the dangers of hostilities; and Chapter V of the outline, always in the context of this general concern for the civilian population, made some sug48

49

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Final Record, vol. IIA pp. 761-762: statement of the Soviet representative in the 40th meeting of Committee III, 6 July 1949; vol. IIB pp. 495-497: statement of the same representative in the 34th plenary meeting, 9 Aug. 1949; vol. III p. 181: draft resolution submitted by the Soviet delegation to the Plenary on 29 July 1949. Ibid., vol. IIA pp. 802-805: discussion and roll-call vote on the Soviet proposal, 50th meeting of Committee III, 19 July 1949; the proposal was declared non-receivable by 34 votes to 8, with 6 abstentions; vol. IIB pp. 497-509: discussion and vote in the 34th plenary meeting; the Soviet draft resolution was declared inadmissible by 35 votes to 9, with 5 abstentions. Ibid., vol. III pp. 180-181. The letter was signed by the delegations of Australia, Brazil, Canada, Chile, China, Colombia, Cuba, France, Italy, New Zealand, Pakistan, the United Kingdom, the United States, Uruguay and Venezuela. Ibid., vol. IIA p. 802.

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gestions with respect to “prohibited methods and means of warfare”. Under this heading, the following propositions relating to specific weapons were made: prohibition to use delayed action weapons “the dangerous and perfidious effects of which are likely to be indiscriminate and to cause suffering to the civilian population”; obligation to chart minefields and to hand the charts over at the close of active hostilities; prohibition to use napalm bombs and other incendiary weapons “in circumstances where they may affect the civilian population, as calculated to cause unnecessary suffering”; prohibition to use fragmentation bombs, “as calculated to cause unnecessary suffering”; and obligation to have a safety device on “weapons capable of causing serious damage to the civilian population”. The formulation given to these proposals obviously was no more than tentative, and the ideas underlying each of them had not yet been well sorted out. But their main tendency was clear: to protect the civilian population against the effects of the various weapons concerned. One year later, at the second session of the Conference of Government Experts, the experts of the countries mentioned above except the Netherlands had moved one step further. They no longer proposed bans on given weapons only in so far as they could adversely affect the civilian population, but general bans, thus covering the use against combatants as well. For the Dutch experts, this was going too fast, as any initiatives relating to the battlefield use of specified weapons evidently could be sponsored only after thorough examination and possibly co-ordination of views within NATO. They therefore submitted a separate paper, which made the point explicit that certain named weapons should be prohibited “for use in circumstances where they may affect the civilian population”; the weapons enumerated were delayed action weapons, napalm bombs and other incendiary weapons, and fragmentation bombs, it being left to the experts to provide a precise definition of each of these categories of weapon. In the ensuing years, the issue of possible restrictions on the use of specified conventional weapons became separated from the mainstream of the work of the Diplomatic Conference. The ICRC had not submitted proposals on the matter, whether as part of the draft Additional Protocols or as separate draft texts; indeed, it was greatly concerned lest any attempt to join too narrowly the matter of conventional weapons to the work on the Protocols might jeopardize the latter work. As an important group of States wished to take the matter up nonetheless, the Conference at its first session established an Ad Hoc Committee of the whole, with the task “to examine the question of prohibition or restriction of use of specific categories of conventional weapons which might be deemed to cause unnecessary suffering or have indiscriminate effects, and to consider all pro-

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Report on the work of the Conference, supra note 21; p. 97: CE/Com.III/44. Report on the work of the Conference, second session, vol. II p. 56: CE/Com.III/ C26 (proposal made by Prof. W. Riphagen).

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posals submitted to the Conference relating to such weapons.” The decision of the ICRC to convene a Conference of Government Experts which would examine the question of conventional weapons in all its aspects was also endorsed by the Conference. This experts’ conference met in two sessions (Lucerne 1974, and Lugano 1976) and its results were fed back into the Ad Hoc Committee. As a result, this Committee had a number of concrete, detailed proposals before it by the time of the fourth session of the Diplomatic Conference. As the adoption of any such proposals, according to the majority view in the Conference, lay outside the terms of reference, either of the Ad Hoc Committee or of the Conference itself, and as, moreover, opinions on the substance of the proposals still varied widely, the Conference ultimately referred the entire business “to the Governments of States represented at the Conference and to the Secretary-General of the United Nations.” It added the request that the matter be given “early and serious consideration”, and it recommended that “a Conference of Governments should be convened not later than 1979” with a view to reaching agreements on the substance of the matter and on “a mechanism for the review of any such agreements and for the consideration of proposals for further such agreements.” At the time of writing, this “Conference of Governments” is yet to be held: it has been convened for September 1979, as the “United Nations Conference on Prohibitions or Restrictions of the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects”. In the meantime, it may be of interest to note the developments in the Dutch attitude with respect to some of the specific questions at issue, and notably the attempts to prohibit or restrict the use of incendiary weapons and mines and booby-traps. As for incendiary weapons, an important group of States represented at the Diplomatic Conference favoured a near-complete ban on their use, thereby seeking to achieve protection of combatants and civilians alike against the effects of these weapons. Within NATO and likeminded countries, however, there was little inclination to accept such far-reaching proposals or, indeed, for some of these countries, any restrictions at all. In these circumstances, the Dutch experts at the second session of the Experts Conference (Lugano, 1976) took the auda-

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OR vol. V p. 90: summary record of the 9th plenary meeting, 4 March 1974, para. 50; the vote was 68 to none, with 10 abstentions; vol. XVI p. 453: Report of the Ad Hoc Committee, 1st session, para. 2. OR vol. XVI pp. 462-464. OR vol. I p. 215: Res. 22(IV): Follow-up regarding prohibition or restriction of use of certain conventional weapons. GA Res. 32/152, 19 Dec. 1977.

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cious initiative of introducing a working paper which was organized along the following lines. In a first part, rules were proposed for the protection of “any city, town, village or other area containing a concentration of civilians” from attacks by means of incendiary munitions in general and flame munitions in particular (the latter being defined as those incendiary munitions “in which the incendiary agent to be delivered on the target is based on a gelled hydrocarbon”, such as napalm). In a second part, it was proposed to ban the use of napalm in particular, and this against combatants as well, except in certain well-defined situations (such as use in close combat support, against bunkers and pillboxes, or against tanks and armoured vehicles). This two-pronged proposal provoked comments of the most diverse nature, showing that while in the form in which it had been presented it would not be acceptable to anyone, it opened an interesting avenue towards a possible compromise solution. This applied in particular to the part of the proposal relating to the protection of the civilian population: there appeared to be less enthusiasm for the suggested restrictions on battlefield use of incendiaries. Accordingly, the Dutch delegation at the third (1976) session of the Diplomatic Conference reintroduced the first part of its proposal as a working paper to the Ad Hoc Committee. Australia and Denmark subsequently became co-sponsors. Once again, it drew both favourable and critical comments from numerous delegations, thus encouraging the three Governments to continue on the same road. At the fourth (1977) session, they introduced a revised version of the working paper, the main revision being that the term “concentration of civilians” was put forward as the crucial element in the proposal. As the proposal pointed out, such concentrations “can either be of a permanent character, such as cities, towns and villages, or of a temporary character, such as camps and columns of refugees or evacuees.” This time, the proposal was discussed, along with the other proposals submitted by various (groups of ) delegations, both in the Ad Hoc Committee and in the Working Group it had established at the outset of the fourth session. As the report of the Working Group notes, there was general agreement that the three-country working paper did not go too far, with a number of delegations believing that it did not go far enough. It therefore seems 58

59 60 61 62 63

Report of the Conference of Government Experts on the Use of Certain Conventional Weapons, second session (Lugano, 28 Jan. - 26 Feb. 1976), published by the ICRC (Geneva, 1976, hereafter to be cited as: Report of the Conference, second session) p. 176: COLU/205. Ibid., pp. 106-108: report on the discussions in the General Working Group of the Conference, paras. 14-23. OR vol. XVI p. 562: CDDH/IV/206. OR vol. XVI pp. 489, 496-498: Report of the Ad Hoc Committee, 3rd session, paras. 7, 34-43. OR vol. XVI p. 564: CDDH/IV/206/rev. 1. OR vol. XVI pp. 513-515: Report of the Ad Hoc Committee, 4th session, paras. 19-26; pp. 533-535: Report of the Working Group, paras. 38-45.

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a fair assumption that the working paper at least offers a useful basis for further discussion. As regards mines and booby-traps, the role of the Netherlands, although active, was decidedly more modest. The initiative in this matter lay with the United Kingdom, with the Netherlands associating itself with the British proposals from the Lugano Conference onwards. Their main purpose, like that of the incendiary weapons proposal, was to provide adequate protection of the civilian population against the effects of these weapons. The matter being somewhat less controversial than that of incendiary weapons, it proved possible during the fourth session of the Diplomatic Conference to bring the two main proposals (one co-sponsored by Denmark, France, the Netherlands and the United Kingdom and the other by Austria, Mexico, Sweden, Switzerland and Yugoslavia) so close together that they could be merged into a single working paper. While this augured well for the question at issue, not all difficulties were completely resolved at the time and therefore, as in the matter of incendiary weapons, it remains to be seen what the final outcome of the ongoing discussions will be. 4.5

Other Matters of Substance

Two matters should be mentioned briefly under this heading: civil defence, and the protective emblem of the Geneva Conventions. The Netherlands has a civil defence organization which comprises both civilian and military elements. It is moreover assumed that in times of emergency the organization will co-operate closely with other, related organizations such as the Red Cross, the police, and the fire department. For these reasons, when the matter of civil defence was brought up at the first (1971) session of the Conference of Government Experts, the Dutch experts along with several others immediately took the position that, contrary to what the ICRC had suggested, not the organizations but .the function of civil defence ought to be the primary object of protection. This opened a debate which continued for quite some time, and the Dutch participants played an important part in achieving the ultimate result as it is found in Article 61 of Protocol I. This Article defines the function of “civil defence” in the first place, and the “civil defence organizations” to which protection is afforded in subsequent Articles (62-66) are defined in terms of that function (viz., any establishment or unit organized or authorized by the competent authorities to perform

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Report of the Conference, second session p. 167: COLU/203, working paper on land mines and booby-traps and proposals for the regulation of their use, submitted by the experts of France, the Netherlands and the United Kingdom. OR vol. XVI pp. 527-532: Report of the Working Group paras. 11-34; p. 544: CDDH/ IV/GT/4. Report on the work of the Conference p. 87: para. 490.

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any of the tasks mentioned under the heading of “civil defence”, and assigned and devoted exclusively to such tasks). The definition of the function of “civil defence” gave rise to quite some controversy. Two extreme possibilities presented themselves: a broad, abstract definition, or an exhaustive list of specific tasks. While the latter solution might be deemed to guarantee the greatest clarity and certainty of the law, the former solution is better suited to respond flexibly to the needs of an ever changing reality. Throughout the negotiations, the Dutch representatives, along with others, were set on reaching such a flexible solution. In the end, they saw a definition accepted the first part of which defined “civil defence” as “the performance of some or all of the undermentioned humanitarian tasks intended to protect the civilian population against the dangers, and to help it recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival”, and the second, enumerative part of which includes, at the very bottom of the list, “complementary activities necessary to carry out any of the tasks mentioned above …” Taken together, these provisions certainly appear to afford the flexibility which the Dutch delegates had so tenaciously sought to achieve. A last aspect of civil defence concerns the participation of members of the armed forces. Here too, two different tendencies could be discerned: to restrict the protection to strictly civilian civil defence organizations (or to their civilian parts), and to extend the protection to the military parts as well. The Netherlands, for obvious reasons, found itself once again on the side of those who sought to achieve the broadest possible protection. And once again, the Dutch and other delegations saw their endeavours ultimately crowned with success, when the Conference adopted Article 67 which states the principle that “members of the armed forces and military units assigned to civil defence organizations shall be respected and protected”, albeit under the proviso that they shall meet a series of conditions enumerated in the Article. The question of the protective sign of the Geneva Conventions has become a problem because not one but three such emblems have been recognized in the past: the Red Cross, the Red Crescent, and the Red Lion and Sun. As this (admit67

68

The greater part of the negotiations on this question took place in a working group and working sub-groups of Committee II, the reports of which provide no information about the differences of opinion on the various aspects of the question. But see OR vol. XII pp. 80-99: summary records of the 61st-63rd meetings of Committee II, 3rd session, where some indications are found concerning the difficulties that awaited the debate in the working groups. The same remark as in the preceding footnote applies here as well. See, for the introductory debate in Committee II, OR vol. XII pp. 99-116 and 146-147: summary records of the 63rd, 64th and 67th meetings. And see, in particular pp. 431-452: summary records of the 96th and 97th meetings, 4th session, where the Article was discussed and finally adopted by consensus. Mr. Gonsalves, member of the Dutch delegation, played an important part in that discussion as Chairman of one of the working sub-groups of the Committee.

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tedly modest) proliferation of emblems was founded on religious and nationalistic grounds, Israel, as soon as it had been created in 1948, felt that it was entitled to have its own protective emblem, viz., the Red Shield of David. It therefore utilized this emblem from the outset, and demanded recognition for it on the international plane, first of all at the Diplomatic Conference of 1949. Although obviously the grounds for its request were as valid as those of Iran (which was the one State to use the Red Lion and Sun), the Diplomatic Conference turned it down on the equally valid ground that any further proliferation of protective signs ought to be prevented. Of course, other considerations of a purely political nature entered into the debate as well. Suffice it to say that the proposal was rejected by 22 votes to 21, with 7 delegations abstaining; and that the Dutch delegation was among those who abstained. The matter was brought up time and again in subsequent international gatherings. Confining ourselves to the conferences of the 1970s on the reaffirmation and development of humanitarian law, the Israeli experts reiterated the proposal that the Red Shield of David should be recognized on the same footing as the other protective emblems at the first and second sessions of the Conference of Government Experts (1971, 1972). Each time, they received the reply that no extension of the list of recognized emblems could be accepted. Not easily discouraged, the Israeli delegation brought the matter up again at the Diplomatic Conference. During the second session, it submitted an amendment to the effect that a new Article should be added to Protocol I, laying down that “where the Red Shield of David on a white ground is already used as a distinctive emblem, that emblem is also recognized by the terms of the Conventions and the present Protocol.” The proposal, to put it mildly, lacked popularity at the Conference. Indeed, so completely was it rejected by the Arab countries and their large group of supporters, that it never came up for formal consideration by the competent Committee I. In the end, after a speech in which he eloquently expounded the Israeli position in the matter, Mr. Shabtai Rosenne withdrew the proposal in the course of the fourth session. Although at the time he reserved 69

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Final Record, vol. IIA pp. 89-92: discussion in Committee I, 17th meeting, 16 May 1949, where an Israeli amendment to recognize the Red Shield of David was rejected in a (non-recorded) roll-call vote by 21 votes to 10, with 8 abstentions; vol. IIB pp. 223-232: discussion in Plenary, 9th meeting, 21 July 1949, where an Israeli proposal to the same effect was defeated by 22 votes to 21, with 7 abstentions. Interestingly, it was also suggested at the time that an appropriate procedure be set up for devising a single emblem; this, in effect, was done only in 1977, when the Council of Delegates of the Red Cross set up a working group to study the question; see infra. Report on the work of the Conference p. 26: para. 67. Id., second session, vol. I p. 41: para. 1.62. OR vol. III p. 14. OR vol. IX pp. 462-465: summary record of the 74th meeting, 16 May 1977, paras. 1126.

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the right to reintroduce the amendment in Plenary, the Israeli delegation finally refrained from doing so and confined itself to entering a declaration into the records “that Israel uses the Red Shield of David as the distinctive emblem of the medical services and the religious personnel of its armed forces and of the National Aid Society, while respecting the inviolability of the distinctive emblems recognized by the 1949 Geneva Conventions.” This time, therefore, the Dutch delegation, as other ones not wholly unsympathetic to the Israeli position, had been spared the difficult choice of whether openly to support it, to abstain, or even to vote against it. It is worth noting that shortly afterwards, the Council of Delegates of the Red Cross in its meeting at Bucharest in October 1977 constituted a working group to study all questions relating to the emblem. The relevant resolution states that consensus will be required for any recommendations which the working group might wish to adopt, and it indicates as members of the working group the ICRC, the League of Red Cross (Red Crescent, Red Lion and Sun) Societies, the Henry Dunant Institute, and the national societies of Iran, Malaysia, Niger, Spain, Switzerland, Syria, Turkey, the United States and the Soviet Union. The resolution of the Council of Delegates was communicated to the XXIIIrd International Conference of the Red Cross held immediately thereafter. This Conference (where Governments are represented) was thus effectively spared the task of taking up the matter once again, and neither did Israel attempt to alter this situation by entering a formal proposal on its part. At the time of writing, the chances seem slight that the proceedings in the working group would lead to any speedy results. 5 The Geneva Conventions of 1949 and the Additional Protocols of 1977: General Provisions 5.1

Protecting Powers and Other Mechanisms of Supervision

The Diplomatic Conference of 1949 introduced into all four Geneva Conventions of that year Articles on the supervisory functions of Protecting Powers (Art. 8/8/8/9) or a substitute organization (Art. 10/10/10/11), as well as an Article on the independent right of the ICRC or any other impartial humanitarian organization to undertake humanitarian activities in the sphere of the Conventions (Art. 9/9/9/10). Already at the time it was feared by some delegations, with the French delegation in the lead, that these provisions were not enough and that situations might arise where no Protecting Powers would be available or accepted. To provide for such situations, the French delegation proposed the setting up, in time of peace, of a High International Committee which would be able to act as a sub73

Ibid., vol. VII p. 57: Annex to the summary record of the 48th plenary meeting, 1 June 1977.

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stitute organization. This proposal met with strong opposition from the Soviet Union and its allies. In the end, the Conference confined itself to adopting a Resolution introduced by the United Kingdom and recommending “that consideration be given as soon as possible to the advisability of setting up an international body, the functions of which shall be, in the absence of a Protecting Power, to fulfil the duties performed by Protecting Powers in regard to the application of the Conventions for the Protection of War Victims.” Shortly after the Conference, in 1950, the French Government came back to the point at issue, suggesting through diplomatic channels that a conference be convened to establish the proposed High International Committee. Its initiative remained without success, however. The Dutch Government, for one, considered it insufficiently elaborated and inopportune, this in view of the outright opposition demonstrated by the Soviet Union at the 1949 Diplomatic Conference. Attempts to reinforce the system of supervision were undertaken once again in the seventies, after it had become clear that the provisions in the Conventions of 1949 were insufficient to guarantee that Protecting Powers would actually be designated and accepted. Two lines of action presented themselves within the bounds of the aforementioned Articles of the Conventions: to remove the difficulties surrounding the designation and acceptance of Protecting Powers, and to enhance the possibilities for the ICRC to act as a substitute. Both lines of action were energetically pursued by a number of Western delegations, not least the Dutch delegation. In neither case were the results entirely satisfactory, though. As for the appointment of Protecting Powers, rules designed to secure such appointment to the maximum extent feasible are now found in Article 5, paragraphs 1-3, 5 and 6 of Protocol I; one particular aspect is that the ICRC has been charged to “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” whenever no such Protecting Power has been designated or accepted from the beginning of the armed conflict (para. 3). No real guarantee has been built into the Protocol, however, that Protecting Powers actually will be appointed: for that, the opposition in particular of the Soviet bloc was too strong. Already at the time of the Conference of Government Experts (1971, 1972) the Dutch experts also strongly supported the idea that the ICRC would be automatically charged to act as a substitute whenever the attempts to appoint Protecting Powers would evidently have failed. Here, they and their likeminded colleagues encountered an unexpected obstacle, however, in the shape of a flat refusal on the part of the ICRC to accept this charge. The willingness of the 74 75

Final Record, vol. III p. 30. Ibid., vol. I p. 361: Resolution 2; the Resolution was adopted by 32 votes to 8, with 4 abstentions; Id., vol. IIB p. 489: summary record of the 33rd plenary meeting, 8 August 1949.

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Committee went no further than to offer its services whenever it would be convinced that these would be acceptable to both Parties. This, indeed, is precisely what now has been laid down in paragraph 4 of Article 5: if there 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 … after due consultations with the said Parties and taking into account the results of these consultations, to act as a substitute.” The Arab experts at the Conference of Government Experts had yet another concern: in their view, the ICRC failed to perform a task which they regarded as paramount, viz., to investigate and expose breaches of the Geneva Conventions and other relevant instruments. They therefore proposed that additional machinery be set up to perform this task, either within the framework of the United Nations or under its aegis. Their proposal met with strong opposition, inter alia, from Dutch experts who felt that such a United Nations organ could hardly be expected to meet the essential condition of impartiality. Their underlying fear was that the public exposure of violations in the United Nations framework, rather than contributing to the faithful application of the rules, risked embittering parties even further instead of restoring their mutual confidence. At the Diplomatic Conference, the Arab delegations did not at first submit a proposal along the lines indicated above but the Norwegian delegation did. In the Working Group of Committee I, where the proposals were discussed as amendments to draft Article 5 on Protecting Powers, the Arab and Norwegian delegations agreed on a combined proposal for a new paragraph to be added to draft Article 5, reading as follows: If the discharge of all or part of the functions of the Protecting Power, including the investigation and reporting of violations, has not been assumed according to the preceding paragraphs, the United Nations may designate a body to undertake these functions.

The most important contribution to the discussion in the Working Group was probably a statement made by the representative of the UN Secretary-General 76 77 78

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Report on the work of the Conference, second session, vol. I p. 180: para. 4.68. Report on the work of the Conference p. 109: paras. 543-544; Report on the work of the Conference, second session, vol. I pp. 180-181: paras. 4.70-4.72. The amendment they proposed would have shifted the burden of appointing Protecting Powers, in the last instance, to the “Conference of the High Contracting Parties” foreseen in draft Art. 7 of Protocol I (and which, in the final version, has been reduced to a “meeting” of those Parties, the convening of which requires the approval of the majority of the said Parties); OR vol. III p. 31: CDDH/I/75, 20 March 1974. OR vol. III p. 35: CDDH/I/83, 13 September 1974. OR vol. X p. 33: Report of Committee I, 2nd session, para. 58.

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to the effect that the Organization was less than desirous to see itself assigned the above role. In Committee I, the proposal was both widely praised for its spirit, and criticized for its contents and for the adverse effect it could have on the difficult compromise which underlay the text of Article 5 as proposed by the Working Group. The Dutch representative expressed his delegation’s doubts about the wisdom of involving the United Nations in this matter; as he said, it “had to be remembered that the United Nations was concerned with the maintenance of world peace and security and that its aims were primarily political. The ICRC, on the other hand, was essentially an apolitical and humanitarian body.” He also brought the point home that it “was not certain whether the victims of armed conflicts would derive any benefit if the paragraph were adopted.” Fortunately, this did not happen; the Committee rejected the proposal by 32 votes to 27, with 16 abstentions. Needless to say, the Dutch delegation was among those voting against. The combined Arab-Norwegian proposal was unfortunately phrased in that it linked the investigation and reporting of violations to the Protecting Powers (and indirectly, to the ICRC as a substitute), asserting without good grounds that this activity must be deemed to be included among the functions of that Power. Indeed, the Conventions of 1949 provide the strongest counter-argument in the Articles dealing with enquiry into alleged violations (respectively, Arts. 52I, 53-II, 132-III, 149-IV): these Articles, while opening the possibility for a Party to the conflict to request such an enquiry, leave the manner in which it shall be instituted entirely to “the interested Parties”; and any reference to the Protecting Powers in this context is conspicuously lacking. The above Articles are also evidence of the fact that the question of enquiry into alleged violations had been a matter of concern at the 1949 Diplomatic Conference. The Articles are, however, particularly weak and, worse, have never been applied in practice. There was, therefore, ample room for a reinforcement of the law with respect to this particular issue. In Protocol I as finally adopted, two Articles deal with the question at issue: Article 89, containing the undertaking of the contracting States, in “situations of serious violations of the Convention or of this Protocol”, “to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter”; and Article 90 making provision for the establishment of an International Fact-Finding Commission. 81

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In the Report to Committee I on the work of Working Group A, this is recorded in the following non-committal terms: “The Working Group heard a statement made by the representative of the Secretary-General of the United Nations on this matter.” OR vol. X p. 69. OR vol. VIII pp. 260-261: summary record of the 27th meeting of Committee I, 14 March 1975, paras. 44-48 (Mr. Fack). OR vol. VIII p. 264: para. 70.

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The establishment of fact-finding machinery as a means of reducing international tension has been a concern of the Netherlands for quite some time. Yet, the idea of introducing such machinery in Protocol I has not originated in a Dutch initiative: it was mentioned in the course of the first (1971) session of the Conference of Government Experts and Danish experts submitted a written proposal on the matter at the second (1972) session. At the Diplomatic Conference, two proposals were submitted to Committee I at the second session; one, by Denmark, New Zealand, Norway and Sweden, for the establishment of an “International Enquiry Commission” and the other, by Pakistan, for the establishment of a “Commission for the Enforcement of Humanitarian Law”. Both proposals covered much the same ground; the most significant difference was that in the Danish proposal the task of appointing the members of the Commission was entrusted to the ICRC, whereas in the proposal of Pakistan the members would be appointed by regional groups of contracting States. The latter proposal was moreover broader in that it went somewhat further than mere enquiry, adding that the Commission should also endeavour to bring a guilty Party back to “an attitude of respect for and obedience to the provisions of the Conventions and this Protocol.” Already at the stage of the introductory debate in Committee I, at the third session of the Conference, it became clear that the idea of mandatory jurisdiction for either of the two proposed commissions was unacceptable to quite a few delegations. For the rest, a marked preference for the Pakistani proposal over the Danish one could be discerned. The Dutch delegation was among those who expressed their support in principle, and subject to drafting changes, of the Danish proposal. At the fourth session, the contest between the two proposals was fought out in a Working Group and subsequently decided, in a paragraph-by-paragraph vote, in Committee I. The resulting text was amended further in Plenary. As compared to the original proposals, the outcome is less than entirely satisfactory. The Article establishes the principle that an International Fact-Finding Commission shall be established, but this principle will become operative only after twenty 84 85 86 87 88 89 90

Report on the work of the Conference p. 109: para. 546. Report on the work of the Conference, second session, vol. II p. 100: CE/Com.IV/10, Article (vii). OR vol. III p. 338: CDDH/I/241, 19 March 1975. OR vol. III p. 340: CDDH/I/267, 25 March 1975. OR vol. IX p. 47: summary record of the 45th meeting, 27 April 1976, para. 15; and pp. 196-197: 56th meeting, 12 May 1976, paras. 30-36 (Mr. Bloembergen). OR vol. IX pp. 418-426: summary record of the 72nd meeting, 13 May 1977, paras. 1264; vol. X pp. 190-191: Report of Committee I, 4th session, paras. 47-56. OR vol. VI pp. 309-328, 341: summary records of the 45th plenary meeting, 30 May 1977, paras. 15-99, and 46th plenary meeting, 31 May 1977, paras. 1-3. The Article was ultimately adopted by 49 votes to 21, with 15 abstentions.

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contracting States have declared their acceptance of the competence of the Commission to enquire into allegations of serious violations, under an optional clause on the same principle as that contained in Article 41 of the International Covenant of Civil and Political Rights. Once established (by an election held at a meeting of representatives of the contracting States) the Commission will have power, either (and this only in relation to States having made the aforementioned declaration) to enquire into the facts of alleged serious violations of the Conventions or the Protocol and to “facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol”; or, in “other situations” (meaning those where not both States involved have made the declaration) to “institute an enquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned.” In the latter situation, the only progress as compared to the Articles on enquiry contained in the Conventions of 1949 is that machinery will already have been established. It should be mentioned, finally, that publication of the reports drawn up by the Commission is not normally foreseen and will take place only at the request of all the Parties to the conflict. In conclusion, Article 90 decidedly marks an advance; it provides machinery, and it provides contracting States with the option to accept its jurisdiction as compulsory. It should be hoped that a great many States will see their way to making use of this option, not least the Netherlands which for a long time has advocated the idea of fact-finding in general and which, moreover, at one stage of the Diplomatic Conference made its acceptance of prohibitions on reprisals against the civilian population virtually dependent on better means of enforcement becoming available. In this light, it is a matter of some regret that the Dutch delegation at the last session of the Conference did not see its way to expressing, if only for the record, a few words of appreciation for the results, no matter how modest, that had been obtained in this field. 5.2 Individual Responsibility Those who drafted the Geneva Conventions of 1949, in many respects derived their inspiration from events connected with the Second World War. One such event was the large-scale punishment of Axis war criminals, originating in a decision of the Allied Powers to “place among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for” the crimes committed in the countries under German occupation, “whether they have ordered them, perpetrated them, or participated in them.” It is not here the place to enter into the many problems connected with the execution of this decision; the only point to be made is that the Hague Regulations and the 91

Inter-Allied Declaration on Punishment for War Crimes, signed in London on 13 Jan. 1942.

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Geneva Conventions in force were far from providing adequate solutions for these problems. Understandably, therefore, considerable effort was made at the Diplomatic Conference of 1949 to mend this situation. The Dutch delegation, and notably its member Captain Mouton, played an important part in this effort and contributed greatly to its ultimate success. The Chapter on “Repression of Abuses and Infractions” in each of the 1949 Conventions opens with an Article (49/50/129/149) which embodies the undertaking of the contracting States “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.” The great importance which the Dutch delegation attached to this provision is evident from a passage in the Report drawn up by Mouton as the Special Committee’s Rapporteur on the subject of penal sanctions in case of violations of the Conventions. Noting that prior to the Second World War many countries had not inserted the necessary provisions in their penal code, he wrote: The absence of such provisions resulted in many violations in the Second World War and brings in the danger of possible reprisals … [The category of grave breaches] has been carefully defined, so as to avoid including acts which allow for various degrees of gravity and could not therefore be considered to be grave breaches if only committed in their less serious forms. The inclusion of grave breaches which have to be penalized, guarantees a certain amount of uniformity in the national laws, which is very desirable when tribunals are also dealing with accused of other nationalities.

In short: the new Articles would guarantee uniformity of legislation, and these uniform national laws would in turn guarantee the occurrence of fewer violations. In the light of these, admittedly somewhat naive expectations, it is a matter of some surprise that the Netherlands eventually confined itself to laying down in the Act respecting Penal Law in Time of War of 10 July 1952 that “Anyone who is guilty of a breach of the laws and customs of war shall be liable to imprisonment for a period not exceeding ten years.” While this is in itself a most useful provision, it can by no means replace the uniform list of grave breaches which the author of the above Report had in mind. The quoted paragraph already hints at the possibility of tribunals having to deal with “accused of other nationalities”. The Report pointedly refrains from indicating these persons as “war criminals”. Indeed, the Soviet delegation 92 93

Special Committee of the Joint Committee, 4th report, Final Record, vol. IIB pp. 114-118. See, on this Act as on many other aspects of criminal law relevant to this section of the present paper, B.V.A. Röling in Chapter 15 of the present work [i.e., International Law in the Netherlands], vol. 2, at pp. 161-201, passim.

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throughout the Conference attempted to substitute the term “war crimes” for “grave breaches” and thereby to establish a link between the new provisions in the Geneva Conventions and the post-war war crimes trials. Without success, however; a majority of the delegations consistently refused to accept this modification. One particular aspect of the said war crimes trials was that members of the German armed forces who were prosecuted for war crimes were not recognized as prisoners of war. This loss of status could entail grave consequences for this category of “accused of other nationalities”. Therefore, the Conference introduced in the Prisoners of War Convention a provision according to which “prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention” (Art. 85). Opposition to the proposal to include this provision came, first and foremost, from the Soviet Union which, consistent with its above position on “war crimes”, argued that the proposal ran counter to an established rule of international law. Perhaps somewhat surprisingly, the same argument was also advanced by Mouton, when he said that the proposal “departed from a very old rule of customary international law, namely the rule that he who violated the laws and customs of war could not rely on the selfsame law for his protection.” He added, however, that the Dutch delegation “did not object to any change in that customary rule, but wanted the Committee to be aware of the results to which the adoption of the … draft might lead.” At a later stage of the Conference, he removed himself even further from the Soviet stand when he said that, although the above doctrine did indeed exist in international law, “we must not forget that international law is not a static thing but is progressive”; and the Dutch delegation, he added, had “no reason whatsoever to oppose such evolution.” The Dutch delegation might have no such reason but the Soviet delegation had. It maintained its opposition to the bitter end: even in the final stage of the Conference, it made an attempt to have the draft Article amended in Plenary, and when this failed, it voted against the Article. The Dutch delegation, it should be noted, had voted against the Soviet amendment, which was rejected by 23 votes to 8, with 7 abstentions. On signing the Convention, the Soviet Union made a reservation to Article 85, according to which it “does not consider itself bound by the obligation … to extend the application of the Convention to prisoners of war who have been convicted under the law of the Detaining Power, in accordance with the principles of the Nuremberg trial, for war crimes and crimes against humanity, it being understood that persons convicted of such crimes must be subject to the conditions 94 95 96

Final Record, vol. IIA p. 319: 18th meeting of Committee II, 8 June 1949. Ibid., vol. IIB p. 308: 16th plenary meeting, 27 July 1949. Ibid., vol. IIB pp. 303-312.

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obtaining in the country in question for those who undergo their punishment.” It maintained this reservation on ratification, on 10 May 1954. Needless to say, the other communist States followed suit, making reservations in identical or similar terms. Several, mainly Western States objected to this reservation, without however going to the length of refusing to accept treaty relations with the reserving States. The Netherlands, for its part, did not make such an express objection. As noted above, the United Nations General Assembly adopted on 20 December 1971 Resolution 2853 (XXVI) which, inter alia, calls upon States parties to the Geneva Conventions and other relevant international instruments “to review, as a matter of priority, any reservations they may have made to these instruments.” This appeal was designed, at least in part, to get the Soviet Union to withdraw its reservation to Article 85. Nothing of the sort happened, however; and also later attempts, in the context of the Diplomatic Conference, to bring about such a withdrawal were of no avail: on the contrary, the Soviet delegates at the Conference left no opportunity unused to reiterate their argument that those prosecuted for war crimes should not be regarded as prisoners of war. Although the Soviet delegation did not succeed in winning the Conference over to its point of view, it scored a minor point when it saw a provision adopted as paragraph 5 of Article 85 of Protocol I on “Repression of breaches of this Protocol”, according to which “[w]ithout prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.” In the light of the Dutch legislation on individual criminal liability for war crimes, this may seem a perfectly innocuous provision. Its drafting history shows, however, that it goes back to the Soviet insistence to have the term “war crime” appear somewhere in the Protocol. Therefore, although Committee I adopted the paragraph by consensus, several delegations expressed their misgivings about its possible implications. Thus, the Dutch delegate said that he failed to see “why some members thought it necessary to introduce the legal principles applied at Nuremberg into the legal rules of the Geneva Conventions, but he hoped that the fact of regarding grave breaches of those Conventions as war crimes would never be made an excuse for anyone to evade the application of the four Geneva Conventions of 1949.” The above question was only one among the many vexing problems encountered by the Diplomatic Conference in the course of its dealings with the subject of repression of breaches of the Protocol. The Geneva Conventions, it should be recalled, have a system based on the concept of “grave breach”, and the grave breaches under these Conventions are carefully defined acts committed against persons protected under the Conventions. Extension of this system to Protocol I might not seem all that difficult in respect of acts committed against the 97 98 99

Schindler & Toman, op. cit. note 1, p. 505. OR vol. IX p. 271: summary record of the 61st meeting, 3 June 1976, para. 11. OR vol. IX p. 280: para. 69 (Mr. Bloembergen).

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wounded, sick and shipwrecked protected by Part II of the Protocol. But questions arose already with respect to the extension of the system to persons protected by Articles 44 and 45: those entitled to prisoner-of-war status by virtue of Article 44, including the members of irregular armed forces operating in occupied territory or in the context of a liberation war, and even those who would have taken part in hostilities without being entitled to that status (but merely to the general protection of Art. 75). And even graver problems arose in relation to the possible application of the system of grave breaches to those Parts of the Protocol dealing with methods and means of combat and the protection of the civilian population; here more than in relation to any other aspect of the question, the reluctance was great among delegations to accept any drastic solutions. In the end, a compromise was reached along the following lines. The provisions of the Conventions of 1949 “relating to the repression of breaches and grave breaches” were declared to apply to the Protocol as well (Art. 85(1)). The category of protected persons under the Conventions was extended to cover “persons in the power of an adverse Party” (thus excluding nationals of a Party to the conflict) who are protected by Articles 44 and 45, as well as refugees and stateless persons protected by Article 73 (Art. 85(2)). Additional grave breaches were defined in paragraphs 3 and 4. Paragraph 3, dealing with the questions of “methods and means” and “protection of the civilian population”, contains a strictly limited list of acts which “shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health”; the list comprises, inter alia, the following: “(a) making the civilian population or individual civilians the object of attack”; “(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects” as defined in Article 57; “(e) making a person the object of attack in the knowledge that he is hors de combat”, and “(f ) the perfidious use … of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol.” Paragraph 4, finally, provides a further list of acts which “shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol”; this list contains such diverse items as “unjustifiable delay in the repatriation of prisoners of war or civilians” (a Pakistani amendment), “practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination” (an Afro-Arab initiative) and, at the other extreme, “depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial” (a Western idea). Evidently, much of this will cause great difficulties, both for national legislators and for the tribunals which eventually will have to apply the above provisions. Yet, the compromise contained in Article 85 appears to be a workable solution in principle, and at all events is preferable to no solution at all, or in other

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terms, to the “choice” which the representative of the ICRC mentioned as a last resort at the outset of the debate in Committee I: “to rest content with a very short article providing simply that the Contracting Parties should take all the necessary legislative and other measures to prevent breaches of the Protocol.” It remains a regrettable fact that the Article contains a number of clauses which can only be regarded as “hobby horses” of one or other group of countries. One particular hobby horse fortunately does not figure in the list of grave breaches; it was the idea, advocated by the Philippine delegation, to include the use of prohibited weapons. The Dutch delegation was among those who spoke out against this idea, pointing out that it “would not be desirable to include among the grave breaches the use of weapons that had not yet been sufficiently defined, since grave breaches should be formulated as unambiguously as possible.” With this, it reverted to a theme it had developed at the outset of the debate, when it had announced its intention to “stress the need for crystal-clear provisions and the avoidance of all ambiguity.” This it had duly done in the debate and in the negotiations which followed; in the end, however, like all other delegations it had to accept a compromise which was not satisfactory in all respects, and which definitely is not without some ambiguity in places. However, the serious ambiguity which would have resulted from adoption of the Philippine proposal was effectively averted. Two other draft Articles remain to be briefly discussed: one on “failure to act” and another on “superior orders”. The idea that the Protocol should contain a provision on the responsibility of superiors for failure to act with respect to violations committed by their subordinates was introduced by Dutch experts, on the instigation of Professor Röling, at the Conference of Government Experts. It was taken over by the ICRC in the draft Protocol submitted to the Diplomatic

100 OR vol. IX p. 16: summary record of the 43rd meeting, 23 April 1976, para. 6 (Mr. Pilloud). 101 OR vol. IX pp. 258-264, 271-277: summary records of the 60th and 61st meetings, 3 June 1976. 102 OR vol. IX p. 259: 60th meeting, para. 31 (Mr. Bloembergen). 103 OR vol. IX p. 47: summary record of the 45th meeting, 27 April 1976, para. 16 (Mr. Bloembergen). 104 The Philippine delegation reintroduced its idea as an amendment in Plenary at the 4th session of the Conference; in a roll-call vote with the Dutch delegation among those voting against, it failed to obtain a two-thirds majority and was therefore rejected (the vote was 41 to 25, with 25 abstentions). OR vol. VI pp. 279-289: summary record of the 44th plenary meeting, 30 May 1977, paras. 1-55. 105 Report on the work of the Conference, second session, vol. I p. 188: para. 4.122; vol. II p. 107: CE/Com.IV/45.

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Conference, and was finally adopted as amended, first by Committee I and subsequently by the plenary Conference. There was less success in the endeavour, strongly supported by consecutive Dutch delegations, to insert a provision on superior orders. As originally drafted by the ICRC, it contained two elements: first, impunity for a person who refuses “to obey an order of his government or of a superior which, if carried out, would constitute a grave breach of the provisions of the Conventions or of the present Protocol”; secondly, the rule that the plea of “superior orders” does not entail impunity if it be established that, in the circumstances at the time, the accused “should have reasonably known that he was committing a grave breach of the Conventions or of the present Protocol and that he had the possibility of refusing to obey the order.” This was evidently a compromise formula: the ICRC had added the final clause in order to humour those experts who had emphasized “the extremely difficult situation of a soldier subject to military laws and regulations which compelled him to obey orders.” This already pointed to one grave difficulty: numerous delegations were not prepared to accept a rule of international treaty law restricting the duty to obey orders. The other main difficulty encountered by the proponents of the draft Article was hardly less grave: national systems of criminal law differ so widely that it would be hard to find for the rule on superior orders a form of words which would satisfy all countries. At the fourth session of the Conference, after a Working Group had redrafted the proposed Article, Committee I voted first, at the instigation of Syria, on the retention or deletion of the Article. The decision of the roll-call vote was in favour of retention, but the number of abstentions was ominously high: 34 votes to 9, with 35 abstentions. The next day, the Committee adopted the Article by 38 votes to 22, with 15 abstentions. But one month later, the Article narrowly failed to obtain a two-thirds majority in Plenary (36 votes to 25, with 25 106 OR vol. IX p. 278: summary record of the 61st meeting, 3 June 1976, para. 59: adopted by consensus. 107 OR vol. VI p. 307: summary record of the 45th plenary meeting, para. 1: adopted by consensus. 108 OR vol. IX p. 127: summary record of the 51st meeting of Committee I, 5 May 1976, para. 22 (Mrs. Bujard). 109 Similar difficulties had been met at the Diplomatic Conference of 1949, and they had rapidly led to the conclusion that the matter had better be left aside; as Mouton noted in his Report: “general agreement [could not] be reached at this stage regarding the notions of complicity, attempted violation, duress or legitimate defence or the plea ‘by order of a superior’. These should be left to the judges who would apply the national laws.” Final Record, vol. IIB p. 115 (emphasis added). 110 OR vol. IX p. 387: summary record of the 69th meeting, 27 April 1977, para. 38; the Dutch delegation voted in favour of retention. 111 OR vol. IX p. 392: summary record of the 70th meeting, 28 April 1977, para. 18.

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abstentions) and was therefore rejected, much to the regret of the Dutch delegation, although they did not consider the Article perfect. The delegation did not, however, place its dismay on record in an explanation of vote. 6

Dissemination

Both the Geneva Conventions of 1949 and, in their wake, Protocols I and II of 1977 contain Articles on dissemination. The Articles in the Geneva Conventions (47/48/127/144) and in Protocol I (83) rest on the same basis; as Article 83 has it: the contracting States “undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries.” This undertaking is elaborated in the Articles of 1949 into an obligation “to include the study thereof in their programmes of military and, if possible, civilian instruction.” In the Netherlands, dissemination among the armed forces gradually got under way, so that at least a modicum of knowledge about the principles of the Conventions could be assumed to exist among the great majority of their members. Of recent years, under the influence of the activities surrounding the drafting of the Protocols and under the constant prodding of the ICRC (which sends out questionnaires on the subject at regular intervals), the instruction to the military was further improved. A different picture presents itself as regards the introduction of Geneva law principles into the “programmes of civilian instruction”. In the Netherlands, the central authorities do not fix these programmes in detail, the determination of school and university curricula being left in considerable measure to the autonomous governing bodies of these educational institutions. This being the case, the Dutch central authorities found in this situation a convenient excuse to spend no effort whatsoever on the dissemination of the Geneva Conventions at school or university level. Other institutions were not so entirely passive. Most notably, the Netherlands Red Cross Society gradually developed a considerable programme for the dissemination of the Geneva law among the civilian population at large, as well as among especially interested groups such as Red Cross volunteer workers, medical doctors, nurses and welfare workers. In this framework, the Netherlands Red Cross Society also took the initiative to the establishment at Leiden University of a special Chair for international humanitarian law applicable in armed conflicts; a noteworthy initiative with few precedents, but which deserves to be followed in 112 113

OR vol. VI p. 308: summary record of the 45th plenary meeting, 30 May 1977, para. 7. See the critical comment of Mr. Schutte in an explanation of vote after the adoption of the Article by Committee I, OR vol. IX p. 400: summary record of the 71st meeting, 29 April 1977, para. 7.

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other countries as well. The present author considers it an honour to be the first occupant of this Chair. Under Article 83 of Protocol I, the possibility of the central authorities maintaining their uninterested posture is reduced somewhat by the language adopted for that Article. The contracting States no longer undertake to do something “if possible”; henceforth, their undertaking will be “to encourage the study thereof by the civilian population.” Under the terms of this provision, they will be required to adopt a policy of active promotion – as indeed they should have done under the old provision. Article 19 of Protocol II, finally, merely lays down that this Protocol too “shall be disseminated as widely as possible.” While evidently, for a country like the Netherlands, the Geneva Conventions and Protocol I on international armed conflicts deserve the greater interest, it is surely to be hoped that in this as in other countries at least a fair measure of attention will also be devoted to Protocol II for the protection of victims of non-international armed conflicts.

Chapter 11 Development of Customary Law of Armed Conflict*

This intervention serves to explain that, and why, I entertain serious misgivings about the notion of customary law of armed conflict as it currently is often used. Far be it from me to deny the existence of custom as a source of general international law. In that framework, customary law is what states do in the belief that it is the legally correct thing to do: a practice recognised as law. But matters are not so simple in the sphere of the law of armed conflict, whether interstate or internal. In interstate war, a situation of conflict usually characterized by massive recourse to arms, the law of armed conflict is said to be the applicable rules states recognise as law, and rules that appear to stem from practice are asserted to belong to the body of customary law of war. But here begin my difficulties. First, no two wars are identical. Is it then justified to conclude from a trend of somewhat similar behaviour in some wars, that this trend sets a precedent for totally different wars? Was the Second World War identical to the first, and the war of 1980-1988 between Iran and Iraq similar to either of those? The Iran-Iraq war differs from the earlier examples in its significantly greater ruthlessness: if one takes the practice of the latter two states as the yardstick for future wars between states, this implies a much lower standard of customary law of war than is usually claimed to apply. Secondly, actual warfare is the business not of states but of human beings and, in any but the most limited wars, of vast numbers of human beings. Paraphrasing the famous dictum of the Nuremburg Tribunal that “[c]rimes against international law are committed by men, not by abstract entities,” I suggest that warfare is conducted by men, women and children, not by abstract entities called states. The individuals involved in actual warfare kill, maim and destroy with all available means, from massive firepower to insidious treachery. In the eighty-year war of national liberation the Dutch fought against the Spaniards in the 16th and 17th centuries, one rather formidable anti-personnel weapon occasionally employed (in effect, by a woman, Kenau Simonsz. Hasselaar) was boiling oil poured onto the heads of Spaniards who attempted to climb the walls of the city of Haarlem.

*

Paper based on intervention delivered on 27 Nov. 1998 at The Hague, in a colloquium organized by the Asser Institute.

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In the second Word War, Dutch resistance fighters in occupied Holland stabbed German soldiers in the back or pushed them into a dark canal. These were risky activities, but then, so is all warfare. Yet the perpetrators did not perceive their deeds as illegitimate acts of war. Here again, it may be very difficult if not outright impossible to conclude to any common practice “recognised as law”. It may be argued that since wars between civilised nations are fought first and foremost by their regular armed forces, the conduct of these forces is largely determined by what they have been trained to do. If this behaviour is in conformity with generally accepted standards, this will tend to confirm the validity of those standards. Yet, even in a war between civilised nations and waged with regular armed forces, very different conduct may occur, and this not just by way of accident but on a large scale and without any reflection on legitimacy. This may occur in particular when in the course of the war, training and discipline lose their grip and factors such as battle fatigue set in. But even apart from this factor, the behaviour of regular armed forces may be well below “generally accepted standards”. Today, many armed conflicts are waged within the territory of a single state, and by definition at least one of the parties to such an internal armed conflict has no regular armed forces. The majority of these wars are waged in parts of the world where Western standards, or even the ostensibly generally accepted standards of human rights, have not yet reached the general public. The individuals involved in such internal wars may respect the family or the clan but may have little respect for the life and wellbeing of other members of the population. Massive slaughtering occurs in consequence, with no noticeable inclination to discriminate according to age or sex. While this may be deplorable or even reprehensible, it is practice nonetheless, and a practice that may throw into doubt for such conflicts the validity of the distinction between combatants and civilians as a standard of customary law. As with interstate wars, not all internal conflicts are identical. But even in a more civilised situation like the forty-odd years old war in Colombia, distinguishing between combatants and civilians is far from established practice. While the left-wing guerrilla forces may express respect for the civilian population as a group, they actually respect only those individuals whom they consider as not connected in any way with the war: your paradigmatic “innocent civilian”. Thus, local or regional political leaders, or candidates for such positions, are not safe from attack or kidnapping. In their turn, the right-wing paramilitary forces have massacred large numbers of innocent people, including women, children and the elderly. Again, all of this may be most deplorable and indeed reprehensible, but it is not atypical. I am aware that the above misgivings stand in stark contrast to a dictum in a judgment of 1995 of the Colombian Constitutional Court. Affirmatively answering the question whether the government could accede to Protocol II without violating the Constitution, the Court held, surprisingly, that the whole of this

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Protocol (as well as Protocol I) is part of the customary law of war and, as such, is applicable in the conflict in Colombia. Perhaps even more surprisingly, the Court added that adherence to Protocol II would provide the parties to the conflict in the country with an excellent basis for the conclusion of agreements whereby they would promise actually to apply specific (sets of ) these applicable rules. In effect, an agreement of sorts was concluded some months ago between the ELN and civil society. It opens with the statement that the ELN of its own free will undertakes not to kidnap persons below the age of 18 and over 55. This is a step in the direction of the treaty prohibition and away from ELN’s long-standing practice of hostage taking, carefully balanced against the perceived needs of the situation. In light of all of this, the question is again whether the treaty ban on hostage taking in internal armed conflict has also entered into the body of customary law of war? I venture to doubt it. Obviously, Colombia is just one country. But let there be no mistake: it ranks among the more civilised of the states that currently are or recently were the theatre of armed conflict. Events in a number of other countries have stood in much sharper contrast to the standards set in the Geneva Conventions of 1949 and the Additional Protocols of 1977, or, indeed, to the standard of civilisation. Therefore, I maintain that if one looks at actual practice, there may be much less customary law of war than is occasionally claimed to exist. I have strong doubts, for instance, about the distinction between combatants and civilians or between military objectives and civilian objects, the prohibition of hostage taking or the prohibition on use of anti-personnel landmines. And if we are asked to believe in the existence of a customary ban on “ethnic cleansing”, I can only say that it finds no basis in current belligerent practice. 1

2

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On the judgment of the Constitutional Court, see, by this author, “Protocol II, the CDDH and Colombia”, in K. Wellens (ed.), International Law: Theory and Practice (1998) 597. Protocol II of 1977 applies in internal armed conflicts, and Protocol I, of the same year, in international armed conflicts. The promise in the “agreement” between ELN (the smaller of the two left-wing guerrilla movements) and civil society did not last long: shortly after its conclusion, ELN captured a civilian aircraft and took all those on board hostage. Conceivably, customary law may be on the rise in other related areas such as individual criminal responsibility. A Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has recently held that the criminal responsibility of military commanders and other persons occupying positions of superior authority for the unlawful conduct of their subordinates is “a well-established norm of customary and conventional international law”, buttressing its claim with an impressive amount of practice. Prosecutor v. Zejnil Delalić et al., Judgement, 16 Nov. 1998, IT-9621-T, para. 333. Obviously, in a case like this, the facts to be taken into account are not the myriad acts of hundreds of thousands of people “in the field” but a manageable amount of practice that is also likely to rest on basically identical interests on all sides.

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What I have said thus far stands in marked contrast to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia has written in its decision on the defence motion for interlocutory appeal on jurisdiction in the Tadić case. The point at issue was the application of Article 3 of the Tribunal’s Statute to internal armed conflict, and the decision argues that since the 1930s, “international legal rules have increasingly emerged or have been agreed upon to regulate internal armed conflict.” However, in trying to prove the point on the emergence of rules of customary law the decision does not rest on what fighters do but on what wise men and women in responsible positions have stated to regard as desirable or required. Such persons may be expected to speak such soothing words, but this does not alter the state of custom, or the undesirable yet actual practice of warfare. In the foregoing, I have consciously overemphasised the element of practice, in the sense of the actual conduct in the field. I did this because I am afraid the element has been seriously neglected in recent discussions and writings. There is of course the other element I referred to a moment ago as “what wise men and women in responsible positions have stated to regard as desirable or required” or, in other words, the “principles of humanity and the dictates of the public conscience” (to quote the minimalist version of the Martens clause now found in the preamble to Protocol II). That these principles are part and parcel of the body of the law of war is evident, for instance, from the very definition in Article 2 of Protocol I of “rules of international law applicable in armed conflict”: they are “the rules applicable in armed conflict set forth in international agreements to which the Parties to the conflict are Parties and the generally recognised principles and rules of international law which are applicable to armed conflict.” These principles, on the distinction between combatants and civilians, on the prohibition of hostage taking, and so on and so forth, must be applied and enforced to the maximum in every armed conflict, whether international or internal, and whether “civilised” or “primitive”. They are rarely automatically applied: it usually takes considerable effort and perseverance to see them respected. They are, so to speak, the upper layer of the law of war, or the goals to be pursued. They are, in again different terms, the rules better men apply: the temperamenta belli of Grotius.

4

Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995, IT-94-1-AR72, para. 97. I myself have spoken such “soothing words” in “Applicability of Customary International Law in Non-international Armed Conflicts”, in A. Cassese (ed.), Current Problems of International Law (1975) 267.

PART 3 means and methods of warfare

Chapter 12 Grotius’ Jus in Bello, with Special Reference to Ruses of War and Perfidy*

The purpose of this contribution is to discuss the views which Grotius expressed in Book III of The Law of War and Peace on jus in bello in the narrow sense. Attention will be focused in particular on those aspects of the subject which fall under the headings of “means and methods of warfare” and, notably, “ruses of war and perfidy”, and an attempt will be made to relate Grotius’ views on these matters to the comparable parts of the law of armed conflict as it stands today. In war things which are necessary to attain the end in view are permissible.

Thus reads the first rule posited by Grotius at the outset of Book III, Chapter I, entitled “General Rules from the Law of Nature regarding what is Permissible in War; with a Consideration of Ruses and Falsehood.” The quoted phrase sounds ominously like a doctrine of military necessity at its most extreme. And indeed, when one reads what Grotius had to say about specific categories of people that may be killed and property destroyed according to the law of nature and the law of nations, it becomes clear that virtually unmitigated military necessity was the state of the law as Grotius perceived it. Thus, in Chapter IV, “On the Right of Killing Enemies in a Public War, and on other Violence against the Person”, Grotius listed among the “enemies” who may be killed: infants and women, captives, and those who have surrendered unconditionally. And in the next Chapter, “On Devastation and Pillage”, he went on to explain that enemy property may be destroyed and pillaged, even if it is sacred or consecrated. It is, in short, inadmissible to construe the basic rule in a different, more restrictive sense, as though Grotius had really wished to convey the message that * 1

2 3 4 5

Published earlier in A. Dufour, P. Haggenmacher & J. Toman (eds.), Grotius et l’ordre juridique international (1985) pp. 89-100. H. Grotius, De Jure Belli ac Pacis ( JBP), III, I, 2; the text used throughout is the translation by Francis G. Kelsey, as published by the Carnegie Endowment for International Peace as No. 3 of the Classics of International Law, Oxford, 1925. JBP, III, IV, 9. JBP, III, IV, 10. JBP, III, IV, 12. JBP, III, V, 1-3.

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in war, only those things are permissible which are imperatively necessary to attain the legitimate end of overcoming the military forces of the enemy; as though, in other words, he had anticipated as early as 1625 the basic rule of the Hague Regulations on Land Warfare of 1899 that “[t]he right of belligerents to adopt means of injuring the enemy is not unlimited,” or even the rule which prohibits the use of means or methods of warfare of a nature to cause unnecessary suffering. Nothing of the kind transpires from Grotius’ description of what he apparently regarded as the accepted modes of conducting war in his day. Admittedly, in placing on record that all these horrible things were regarded as permissible in a public war, Grotius did not imply that they were also right; on the contrary, he took great pains to explain that he was using the word “permissible” here “as referring to that which is done with impunity, although not without moral wrong.” That he did hold many of these accepted practices of warfare to be morally reprehensible becomes abundantly clear from a reading of Chapters XI-XVI, where he suggested a long series of “moderations” which those engaged in a lawful war ought to observe – even though neither the law of nature nor the law of nations obliged them to do so. So far as the manner of conducting operations is concerned, violence and frightfulness are particularly suited to wars.

While this sentence might appear to be yet another, bitter complaint about the character of warfare in his day, it is indeed the opening phrase of a section of Chapter I in which Grotius discussed virtually the only question he raised in this context, viz., “whether it is permissible to use a ruse in war.” A surprising question, to say the least. To the modern lawyer, the ruse of war represents as much a traditionally accepted method of warfare as does resort to violence: witness the Instructions for the Government of Armies of the United States in the Field, issued by order of the President of the United States in 1863, at the time of the Civil War, and more commonly known, after their author, as the Lieber Code: “… deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare…”

6 7 8 9 10 11

Art. 22; see also Art. 35(1) of the 1977 Protocol I Additional to the Geneva Conventions of 1949 (infra note 43). Art. 35(2) of Protocol I, being the modernized version of Article 23(e) of the Hague Regulations. JBP, III, IV, 2-5. JBP, III, I, 6,1. Ibid. The Instructions are reprinted in D. Schindler & J. Toman, The Laws of Armed Conflicts, 2nd ed. (1981).

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The question is all the more surprising in view of the self-evident acceptance of ruses of war as an honourable method of warfare in an earlier paper from Grotius’ hand, though one which was published only much later, under the title De fide et perfidia. Apparently, by the time he had come to write his magnum opus, hesitations had taken the place of his earlier firm conviction. Be this as it may, the question once raised led him into a lengthy discussion of the many and varied ways in which men can deceive each other. First of all, he discarded the extreme thesis that deceit is never permissible. As he noted at one place, and with an unexpected touch of realism, the rejection by some people of certain types of fraud which he (Grotius) considered permissible “… did not happen because they view such means of deception as unjust, but because of a remarkable loftiness of mind, and, in some cases, because of confidence in their strength.” The next step was to distinguish deceit in a negative guise from its positive counterpart. In Grotius’ opinion, deceit consisting in a negative action, i.e., dissimulation, constituted a permissible course of action. As for deceit consisting in a positive action, he introduced further divisions and subdivisions. For the greater part, his observations on this score are of a general and theoretical order; for present purposes, they are of strictly limited relevance. It may therefore suffice to mention the following points. Besides dissimulation, also pretence was held by Grotius to present a permissible mode of deceit. Pretence is deceit of the positive variety but exhibited in acts, as opposed to words. In the category of pretence he listed such actions as a pretended flight, and “… the actions of those of whom we read that they made use of the weapons, standards, uniforms, and tents of their enemies.” In an earlier era, use of the enemy’s standards and other heraldic paraphernalia would certainly have amounted to a violation of the code of chivalry – a notion, incidentally, which simply does not figure in Grotius’ description of the law of war. To him, use of the enemy’s uniform or standard was indistinguishable from that of his weapon or tent. All these acts he counted among those acts of pretence which “… may be employed by any one at his discretion, even contrary to custom; for the custom itself was introduced by the choice of individuals, not as it were by universal consent, and such a custom constrains no one.” A remarkable state-

12

13 14 15 16 17

See W. Fikentscher, “De fide et perfidia – Der Treuegedanke in den ‘Staatsparallelen’ des Hugo Grotius aus heutiger Sicht”, Bayerische Akademie der Wissenschaften, Phil.hist. Kl., Sitzungsberichte (1979). JBP, III, I, 20,1. Grotius repeats the same argument in his discussion of the right to use assassins (infra, text at note 32): III, IV, 18,3, para. 2 JBP, III, I, 7. JBP, III, I, 8,1. JBP, III, I, 8,4. JBP, III, I, 8,5.

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ment, to say the least, in the eyes of those who are acquainted with modern views on the formation of customary international law. Grotius next turned to falsehood, i.e., deceit in a positive mode but exhibited in words or signs; devices which, as he put it, “were invented as a means of expression under a mutual obligation.” Falsehood he considered the most difficult category to deal with. Accordingly, starting from the assumption that recourse to falsehood is not permissible in principle, he took a full twelve sections to examine this principle, and the various exceptions to it, from every angle. We need not follow him on this path. Rather, the following may be selected from this abundant material. In a general sense, Grotius stated, falsehood requires “… that what is spoken, or written, or indicated by signs or gestures, cannot be understood otherwise than in a sense which differs from the thought of him who uses the means of expression.” But this must be narrowed down: the “means of expression” must “conflict with the existing and continuing right of him to whom the speech or sign is addressed.” And this is followed by an explanation of what Grotius understood here by “right”; it was “not … every right without any relation to the matter in question, but that which is peculiar to it and connected with it. Now that right is nothing else than the liberty of judgement which, as if by some tacit agreement, men who speak are understood to owe those with whom they converse.” We shall revert to this statement at a later stage. As far as falsehood in war was concerned, Grotius had to concede that according to a strong body of opinion “… it [was] permissible to speak falsely to an enemy.” He mentioned in passing that he “assume[d] that nothing is settled here.” And he went on to proclaim in no uncertain terms that at all events, falsehood would not be permissible with regard to promises, even implied ones, and to oaths. “This holds true” – he added – “even among enemies, without any exception arising from the hostility existing at the time.” 18 19 20 21 22 23 24 25 26 27 28

JBP, III, I, 8,2. JBP, III, I, 9,1. JBP, III, I, 9-20. JBP, III, I, 9,1. Ibid., para.2. Ibid., para. 3. JBP, III, I, 17,1. JBP, III, I, 17,3. ]BP, IV, I, 18. JBP, III, I, 19. JBP, III, I, 18, para. 2. In the closing section of Chapter V (“On Devastation and Pillage”) Grotius made the point that with respect to the seizure of enemy property as well, “ruses which do not involve breach of faith are held to be permissible”; III, V, 4.

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So much for Grotius’ treatment of the question “whether it is permissible to use a ruse in war.” In Chapter IV, mentioned earlier, he elaborated the basic rule of Chapter I that “[i]n war things which are necessary to attain the end in view are permissible.” He made it abundantly clear that in a public war many terrible things were permissible under the law of nations, i.e., as explained above, could be done with impunity. In his assessment, as far as methods and means of warfare are concerned, very few limits were set to this freedom of action of belligerents. He perceived one such limit in the age-old prohibition “to kill any one by means of poison.” In his view, this practice was forbidden not so much by the law of nature, because “… in case it is permissible to kill a person, it makes no difference whether you kill him by the sword or by poison”: rather, the prohibition arose from “… the law of nations – if not of all nations, certainly of those of the better sort…” An interesting category indeed, these “nations of the better sort”; one can hardly fail to be reminded of the later “Christian” and the even more recent “civilized” nations. Another limit concerned a certain type of assassination. Not every use of assassins was forbidden in Grotius’ estimation; specifically, there was nothing against having an enemy killed in any place whatsoever by assassins who, with respect to that enemy, were “held by no bond of good faith.” “But” – he continued – “a different point of view must be adopted in regard to those assassins who act treacherously.” Grotius advanced the same reason for both prohibitions. As he explained with respect to poisoning: Agreement upon this matter arose from a consideration of the common advantage, in order that the dangers of war, which had begun to be frequent, might not be too widely extended. And it is easy to believe that this agreement originated with kings, whose lives are better defended by arms than those of other men, but are less safe from poison, unless they are protected by some respect for law and by fear of disgrace.

It is interesting to compare this argument with the paragraph from the Lieber Code, part of which was quoted earlier. It reads in full:

29 30 31 32 33 34 35

JBP, III, IV, 15. JBP, III, IV, 15,1, para. 1. Ibid. JBP, III, IV, 18, 1-3. JBP, HI, IV, 18,4. JBP, III, IV, 18,5. JBP, III, IV, 15, para. 2.

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The argument is very similar in both cases. Yet, on closer inspection, it strikes the eye that Lieber did no longer, as Grotius had done, confine his argument to the special risk run by kings: to him, treachery posed an unacceptable risk to all combatants without exception. I must retrace my steps, and must deprive those who wage war of nearly all the privileges which I seemed to grant, yet did not grant to them. For when I first set out to explain this part of the law of nations I bore witness that many things are said to be “lawful” or “permissible” for the reason that they are done with impunity, in part also because coactive tribunals lend to them their authority; things which nevertheless, either deviate from the rule of right (whether this has its basis in law strictly so called, or in the admonitions of other virtues), or at any rate may be omitted on higher grounds and with greater praise among good men.

With this paragraph Grotius opened Chapter X, on “Cautions in Regard to Things which are done in an Unlawful War”; and, with that, his discussion in this and subsequent chapters of the “moderations” which moral justice bade belligerents to observe. For the greater part, this discussion deals with matters which lie beyond the scope of our subject. Yet, it seems of sufficient interest to note more or less in passing that Grotius elaborated his views on “[w]ho may be killed in accordance with moral justice” into a long list of people who should be spared: thus, children; women, unless they had been guilty of an extremely serious offence; and old men; and those “whose manner of life is opposed to war”, such as people “who perform religious duties” as well as those “who direct their energies to literary pursuits;” also farmers, and merchants. Non-combatants, we would say nowadays, or: civilians. It is useful to realize, and a sobering thought, that, while quite extensive rules on the “general protection of the civilian population” have recently been codified in Part IV of Protocol I of 1977 (and a more

36 37 38 39 40 41 42

Loc. cit. supra, note 11. JBP. Ill, X, 1,1. ]BP, HI, XI, 2. JBP, III, XI, 9. JBP, III, XI, 10. JBP, III, XI, 11. JBP, III, XI, 12.

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modest set of rules in Part IV of Protocol II), the underlying idea of these very precise rules is that civilians should be spared as much as possible – that is, they can be spared the hardships of war only to the extent that military necessity in a strict sense permits. To achieve the “moderations” which Grottus advocated, those charged with implementing the new rules will have to set about their task with the will to push military necessity back within the narrowest possible confines; in doing so, they will be well advised to let themselves be guided by a strong sense of Grotian moral justice. Of direct relevance to the subject of “methods and means of combat” is what Grotius, always in the context of the “moderations” of moral justice, had to say about the treatment of adversaries. To begin with, he included prisoners of war among the list of people who should be spared, adding that “… in history those are praised who, when they might have been burdened or endangered by an excessive number of prisoners, preferred to release all rather than kill them.” We are reminded here of the rule laid down in Article 41(3) of Protocol I: When persons entitled to protection as prisoners of war have fallen into the power of an adverse Party under unusual conditions of combat which prevent their evacuation as provided for in Part III, Section I, of the Third Convention [of Geneva of 1949], they shall be released and all feasible precautions shall be taken to ensure their safety.

It is one thing for combatants to be told that they should not be deprived of their lives once they have been made prisoners of war, but another thing whether they will be made prisoners of war in the first place; whether, in other terms, they will be granted quarter. Grotius estimated that from the point of view of moral justice this was indeed the better course of action. This applied both to “those who yield upon condition that their lives be spared,” whose surrender “ought not to be rejected, either in battle or in a siege,” and to those “who yield themselves unconditionally to the victor, or who become suppliants.” While this already 43

44 45 46 47

Protocols I and II Additional to the Geneva Conventions of 12 August 1949 were adopted in Geneva on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, and opened for signature in Berne on 12 December 1977. Protocol I relates to the protection of victims of international armed conflicts, and Protocol II to those of non-international ones. The text of both instruments as well as of the four Geneva Conventions of 1949, is found e.g. in Schindler & Toman, op. cit. supra, note 11. JBP, III, XI, 13,2, closing sentence. See the comment to this provision in M. Bothe, K.J. Partsch & W.A. Solf, New Rules for Victims of Armed Conflicts, The Hague, 1982, pp. 223-224. JBP, III, XI, 14,1. JBP, III, XI, 15.

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in large measure presaged the rules on quarter and safeguarding an enemy hors de combat in Articles 40 and 41 of Protocol I, Grotius went on to reject certain exceptions to the precepts which he advocated; exceptions which, he stated, “… are by no means just; as, for example, if retaliation is required, if there is need of inspiring terror, if too determined a resistance has been offered.” As is well-known, denial of quarter was resorted to in the course of the Second World War both as an alleged reprisal and as a measure to inspire terror; a notorious instance is the Commando Order, issued by Hitler on 18 October 1942. The prohibition to deny quarter, contained in Article 40 of Protocol I, does not specifically reject a desire to inspire terror as a possible excuse, nor does it need to do so, as this could not provide a legal excuse in the first place. The situation may appear different with respect to the equally absent prohibition to set the rule aside by way of reprisal. Solf notes this “curious omission”, but then goes on to explain why the omission is not all that significant: reprisal attacks against hors de combat adversaries are usually thought of as a response to an enemy who refuses quarter, but such an enemy would hardly be deterred by reprisal attacks against those of his combatants who seek to surrender to the enemy. Insofar as such reprisals merely discourage combatants from voluntarily giving up the fight and deprive friendly forces of a source of military intelligence, they afford no military advantage.

Moderation, finally, should also be observed with respect to things: destruction of property and devastation of (parts of ) a country, or a city, should not be resorted to if it would serve no useful purpose. This, Grotius added, applied with particular force with respect to those things which had been devoted to sacred uses and consecrated things, such as religious edifices and structures erected in honour of the dead. We have said that, in respect to character and extent, what is permissible in war is considered either absolutely or with reference to a previous promise. The first part of the subject has now been finished; there remains the latter part, which concerns the good faith of enemies with one another.

With these words, which open Chapter XIX, “On Good Faith between Enemies”, Grotius reverted to a question which he had touched upon earlier and which, although not altogether devoid of interest in his day, has acquired far greater 48 49 50 51 52

JBP, III, XI, 16,1. See F. Kalshoven, Belligerent Reprisals (1971) 157, pp. 184-193. In Bothe, Partsch & Solf, op. cit. supra note 45, pp. 221-223. Chapter XII. JBP, III, XIX, 1,1.

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significance since, with the development of an ever growing body of conventional law of war. To Grotius, public understandings resulting from an express or implicit promise and relating to war concerned such matters as the termination of war (Chapter XX) and, during a war, the establishment of a truce, the safe-conduct, and the ransom of prisoners (Chapter XXI). He examined to what extent lower officials could be competent to enter into such agreements (Chapter XXII). He explained that private persons too, whether they be combatants or civilians, could conclude (private) agreements with the enemy and thereby become bound in relation to the enemy by virtue of the principle of good faith (Chapter XXIII). Good faith, he emphasized, could be express or implied (Chapter XXIV). An instance of implied good faith would arise when a person asks or grants a parley: this, he stated, includes the promise “that it will be without hurt to those who take part in it.” Another example was the use of “mute signs which have a significance arising from custom”: thus, “[a]t the present time white flags are the implied sign of a request for a parley; they will, therefore, be no less binding than if the parley had been requested by word of mouth.” Use of the white flag as the indication of an intent to negotiate has subsisted to the present day and is, indeed, mentioned in so many words in Article 32 of the Hague Regulations on Land Warfare of 1899/1907. Protocol I of 1977 does not repeat these words and instead simply refers to the “flag of truce” (in Articles 57(1)(a), and 38) without specifying that this should be, or normally is, a white flag. Besides as a flag of truce the white flag is now moreover in common use as a sign of surrender. In either case, Grotius’ idea of good faith with respect to such signs is reflected in the express or implicit recognition these uses of the white flag have received in the rules relating to perfidy, misuse of recognized emblems, signs or signals, and safeguard of an enemy hors de combat (Articles 37, 38 and 41 of Protocol I, respectively). It remains for me to make up some sort of a balance with respect to the question of the relevance today of what Grotius had to say about the law relating to means and methods of warfare. A first remark is that I leave it to the historians to decide whether his description of the law of warfare according to the law of nature and the law of nations, i.e., without the “moderations” arising from considerations of moral justice, presents an accurate picture of warfare as practised in the Thirty Years War – the war under whose shadows he wrote. 53 54 55

JBP, III, XXIV, 3. JBP, III, XXIV, 5. “Condemned to exile and the service of alien kings, Grotius looked upon Europe through the smoke and flame of the Thirty-Years War, his sensitive nature astonished and revolted by the kaleidoscope of shifting alliances, the excess of the military, and the unrelieved privations to which the mass of the people were subject, and – perhaps for him the grossest absurdity of all – the earnest claim on every side that these horrors were somehow committed in the name of Jesus Christ.” M.C.W. Pinto,

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From the point of view of the modern military lawyer, Grotius’ treatment of the law relating to means and methods of warfare appears at first sight singularly inadequate. For one thing, as concerns form, he obviously made no effort whatsoever to present his material in a fashion and a style which could have made it digestible or even comprehensible to the average military man. We are told that today’s average soldier would suffer considerable difficulty if he were confronted with the texts which ultimately emanated from the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in this city of Geneva from 1974 to 1977, in the form of the two Protocols of 1977 Additional to the Geneva Conventions of 1949. Suppose our average soldier were to find his progress through the jungle of these legal texts further complicated by an interminable series of discourses and digressions of the Grotian variety – he surely would soon abandon his attempt to disentangle the mess and turn to a more favourable pastime. As regards substance, allusion was already made to the surprise occasioned by Grotius’ question whether ruses of war are permissible at all. The modern mind is trained to accept as axiomatic that, in the terms of the Hague Regulations, “Ruses of war … are considered permissible.” Yet, it should be realized that one of the rapporteurs of the Hague Peace Conference of 1899, Edouard Rolin, found it necessary to emphasize that this provision did not purport to lay down that each and every ruse of war was ipso facto lawful: on the contrary, it merely meant that ruses of war were not prohibited as such, and they would be unlawful whenever they were found to contravene another imperative rule. This brings to mind once again the question of the use of enemy uniforms. Under the terms of Article 37 of Protocol I, such use does not come under the head of perfidy, as it cannot be said to constitute an act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict.” Yet, it does not constitute a permissible ruse of war either: while Article 37(2) gives as examples of ruses of war “the use of camouflage, decoys, mock operations and misinformation”, Article 39(2) makes the “use of the flags or military emblems, insignia or uniforms of adverse Parties while engaging in attacks or in order to shield, favour, protect or impede military operations” the object of a separate prohibition. On a somewhat more general level, a parallel may be discerned between Grotius’ conception of falsehood, being the use of a means of expression conflict-

56 57

“The New Law of the Sea and the Grotian Heritage”, in T.M.C. Asser Instituut, Commemorative Colloquium on “International Law and the Grotian Heritage”, 8 April 1983, The Hague, Advance Papers (mimeographed) No. 2, at pp. 1-2. Art. 24. Conférence internationale de la Paix, La Haye 18 mai - 29 juillet 1899, published by the Dutch Ministry of Foreign Affairs in a new edition (1907), Part One at p. 40; Report of the 2nd Sub-Commission of the Second Commission.

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ing with a right of him to whom the falsehood is addressed, on the one hand, and recent developments regarding the notion of perfidy, on the other. While perfidy had been left undefined in the Hague Regulations, a definition was considered indispensable by the makers of the Additional Protocols of 1977. The formula as ultimately accepted is extremely complex. Yet, it may be clear from the phrase quoted in the previous paragraph that a crucial element in the definition finally agreed upon (and laid down in Article 37(1) of Protocol I) consists of the betrayal of confidence in a right of protection obtaining in the relation between the perfidious attacker and his victim. Of even more lasting value are Grotius’ views on the binding force of the law of war, as opposed to mere practice. It matters little that the law as he perceived it – i.e., the law of nature and the law of nations – provided very few limitations on the freedom of action of belligerents with respect to choice of means and methods of warfare. What counts is that the limits which he did recognize had to be respected, as he had it, “without any exception arising from the hostility existing at the time.” With respect to the “moderations” which Grotius proposed on the basis of considerations of moral justice, it may be noted that much of what he suggested, as well as a good many things which he did not even consider, have meanwhile been elevated to the status of positive international law, entailing precise legal obligations for states and individuals alike. Yet, as it was observed in the foregoing, to achieve in the practice of warfare a conduct even remotely resembling the written law, a constant appeal to the sense of moral justice of all parties will remain necessary as long as wars occur. Finally, even after the “reaffirmation and development” of major parts of the law of war achieved with the adoption of the Additional Protocols of 1977 and the conclusion in 1980 of the 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, the law-on-the-books is still far from perfect. The techniques and technology of war, on the other hand, continue to develop. There always remains the need, therefore, for the powers of this world to continue to discuss and negotiate improvements of the law of war, if possible alongside with steps towards a reduction of armaments; or, in Grotius’ terms, to consider “the common advantage, in order that the dangers of war, which [have] 58 59 60

On top of the elements contained in the formula quoted in the text above, the definition requires the “intent to betray that confidence”. Loc. cit. note 28. The Convention was adopted on 10 Oct. 1980 in Geneva by the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and opened for signature in New York on 10 April 1981. For the text see A. Roberts and R. Guelff, Documents on the Laws of War (1982).

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begun to be frequent, might not be too widely extended” –and this no longer mainly with respect to poison or the use of treacherous assassins.

61 62

Loc. cit. note 35. “Looking around us we see a picture which is every bit as uncomfortable [as the one observed by Grotius]. Grotius wrote his book to reinstall the rule of law in a seemingly lawless world, and he did so being fully convinced that there was a common law among nations. That was his deepest motivation. To carry on the Grotian quest with this same deep motivation may well be the best way to handle the Grotian heritage.” P.H. Kooijmans, How to Handle the Grotian Heritage, Second Cornelis van Vollenhoven Memorial Lecture, 29 March 1983, published by the Cornelis van Vollenhoven Foundation, Leiden; also published in 30 NILR (1983) p. 81, at p. 92.

Chapter 13 Incendiary Weapons: Legal and Humanitarian Aspects*

1

Introduction

Among the many aspects of the American participation in the Vietnam war that have irritated public opinion in and outside the United States, the extensive use of napalm drew particularly severe criticism. This negative appreciation leads to the obvious question whether the use of napalm was a legitimate course of action under the existing law of armed conflict. The purpose of this paper is to find and answer to this question and to the wider one of the legality of use of incendiary weapons in general. First, some history. While napalm may be a fairly recent acquisition in the arsenals of armed forces, the use of fire as a means of warfare goes back to the early days of human history; it has played an important role in many battles and sieges throughout history. This was true when wood was the main ingredient of many man-made structures, such as houses and ships. It has remained true to the present day, although stone and brick, concrete and steel have increasingly taken over the function of wood as the main building material. Combustible materials are present in most structures and the burning capacity of incendiary weapons has kept pace with the increased fire-resistance of steel ships and tanks or concrete buildings. There is no need to dwell at length on these facts, which are too well known to admit of elaboration. It may suffice to recall that incendiary means of warfare have developed from the bundle of burning material thrown into the enemy stronghold or city, through the Greek fire and the fire-ship directed towards the enemy fleet, to the incendiary bomb and napalm; and from the burning arrow to incendiary projectiles and the flamethrower. It may also be pointed out that at the time when the codification of the law of war was taken in hand, by the end of the 19th century, the use of incendiaries was common practice. 2 The Period up to the League of Nations Disarmament Conference While the Instructions for the Government of Armies of the United States in the Field, drawn up by Francis Lieber and published by order of the President

*

Paper prepared for SIPRI Symposium on incendiary weapons, August 1972.

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of the United States as General Order No. 100 on 24 April 1863, are completely silent on the use of incendiary weapons (and, for that matter, of other specific means of warfare, with the sole exception of poison), a first reference to incendiary weapons is found in the Declaration of St. Petersburg of 1868 to the Effect of Prohibiting the Use of Certain Projectiles in Wartime. The Declaration, designed to prevent “the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable,” contains the engagement of the contracting Parties “mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances.” As is clear from the text, the Declaration was concerned with the use of the said light projectiles on the battlefield or, in other words, the protection of combatants against the use of a means of warfare the use of which against human beings was evidently considered to cause unnecessary suffering. The draft convention on the laws and usages of war Russia placed before the Conference of Brussels of 1874 reiterated the prohibition of “the employment of explosive bullets of a weight below 400 grammes and charged with inflammable substances”. The Declaration of Brussels of 1874, as adopted by the Conference, joins a reference to the prohibition of 1868 to the general rule concerning unnecessary suffering: Article 13(e) prohibits “the employment of weapons, projectiles or substances calculated to cause unnecessary suffering, as well as of projectiles prohibited by the Declaration of St. Petersburg of 1868.” At the Peace Conference of The Hague of 1899, interest in the question of incendiary weapons had dwindled. Two commissions discussed proposals relating to the use of weapons. The Second Commission, taking up Article 13(e) of the Declaration of Brussels, deleted the reference to “projectiles prohibited by the Declaration of St. Petersburg of 1868”, on the grounds that the competent Sub-

1

2

3

4

Text in Francis Lieber, Contributions to political science, including lectures on the Constitution of the United States and other papers, being Vol. II (1881) of his Miscellaneous Writings. The Lieber Instructions are reprinted in D. Schindler & J. Toman, The Laws of Armed Conflicts, 4th ed. (2004) p. 3. Para. 16: “Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.” Art. 12 (F); Actes et documents relatifs au Programme de la Conférence de la Paix, publiés d’ordre du Gouvernement par Jhr Van Daehne van Varick, The Hague, 1899, Document B 6. Ibid., Doc. B 5.

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Committee of the First Commission had meanwhile adopted a text which , it was thought, might lead to an extension of the scope of that Declaration. The First Commission had before it a proposal for a declaration concerning expanding bullets, a type of bullet that had become known under the name of dum-dum bullets, after the arsenal in India where they were produced for use against the natives. After much discussion the Commission finally agreed on a text the language of which, as pointed out more than once in the debate, attempted to maintain a relationship with the Declaration of St. Petersburg: The employment of bullets which easily expand or flatten in the human body, such as explosive bullets, bullets with a hard envelope which does not entirely cover the core or is pierced with incisions, shall be prohibited.

However, in the Declaration finally adopted by the plenary Conference the reference to “explosive bullets” had been stricken out, turning the relationship to the Declaration of St. Petersburg into one more in spirit than in the flesh. It may be clear that in this early period, except for a momentary attention in the context of the Declaration of St. Petersburg, the matter of incendiary weapons had not aroused any great interest. At the same time, the prohibition on the use of means of warfare calculated to cause unnecessary suffering had found general acceptance and had been embodied in Article 23(e) of the Hague Regulations Respecting the Laws and Customs of War on Land. In the First World War, incendiary weapons were used on both sides, nor did this give rise to any particular protests after the war. The President of the International Committee of the Red Cross (ICRC), in a letter of 23 November 1920 to the Assembly of the League of Nations, urged measures for the protection of the civilian population against the hardships of war. These included “the prohibition of the dropping on towns of projectiles which carry death to the peaceable population, and to women and children unconcerned with the war” and the “absolute prohibition of the use of asphyxiating gas”, but incendiary weapons were not mentioned. Similarly, the Commission of Jurists which in 1923 drew up the (non-ratified) Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, whilst laying down detailed rules for air bombardment, did not refer to the use of incendiary bombs. On the other hand, it did state that “the use of tracer projectiles, whether incendiary or explosive, by or against an aircraft is not forbidden,” thus recognising that whatever the actual significance 5 6 7 8

Conférence internationale de la paix, la Haye 18 mai – 29 juillet, published by the Netherlands Ministry for Foreign Affairs, Part III, pp. 20, 30, 42, 81. Ibid., Part II at pp. 4, 11, 43, 50. Ibid., Part I at p. 55 and Annexes at p. 28. ICRC, Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, 2nd ed. (1958) p. 151.

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of the Declaration of St. Petersburg, its scope was in any event limited to land warfare. At the time, all attention was focused on the use of asphyxiating and other gases, a use which the First Peace Conference had foreseen and the horrifying effects of which had been amply demonstrated during the First World War. Understandably, therefore, the Conference on the Trade in Arms, held in 1925 under the auspices of the League of Nations, devoted part of its time to that subject. This resulted in the adoption of the Geneva Protocol of 1925 for the Prohibition of the Use Asphyxiating, Poisonous or other Gases and of Bacteriological Methods of Warfare. While this Protocol refers to the use of such gases and of all analogous liquids, materials or devices, there is no indication that incendiary means of warfare had been intended to be comprised either under the “other” gases or under the “analogous” liquids (etc.). In the absence of any such positive indication, it cannot be assumed that the adoption of the Geneva Protocol of 1925 has resulted in the prohibition of use of incendiary weapons. 3 The League Disarmament Conference The conclusion that the Gas Protocol of 1925 deals with chemical means of warfare proper and does not cover incendiary weapons is borne out by the history of the League of Nations Conference for the Reduction and Limitation of Armaments, held in Geneva from 1932-1934. This Conference aimed to achieve both quantitative and qualitative disarmament, with the latter defined as “the selection of certain classes or descriptions of weapons the possession or use of which should be absolutely prohibited to all States or internationalised by means of a general Convention.” In the terms of reference of the competent commissions, the weapons to be selected were defined as “those weapons whose character is most specifically offensive or those most efficacious against national defence or most threatening to civilians.” The Special Committee set up to deal with chemical and bacteriological weapons and other questions common to land, see and air armaments had no difficulty in finding that chemical and bacteriological means of warfare answered to the criteria set out above. It then took the initiative to add a third category, viz., incendiary weapons. It pointed out that such weapons, like chemical means of warfare but unlike ordinary weapons, “do not act by shock or trauma”: “They possess a specific means of action which assimilates them to chemical rather than to ordinary weapons.” The Committee therefore found it necessary to consider 9 10 11 12

Conf. D/C.G. 26(1). Conf. D/C.G. 28(2). Conf. D.120: Chemical and Bacteriological Weapons, Special Committee, Report to the General Commission, 31 May 1932. Ibid., para. 14.

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whether incendiary weapons fulfilled the three criteria for qualitative disarmament. The suggestion that incendiary weapons, rather than being assimilated to chemical weapons, might simply belong in that category evidently did not arise. In examining the character of incendiary weapons the Special Committee drew a distinction between projectiles and flamethrowers. Its argument relating to “bombs, shells, grenades, bullets, arrows, pastilles and other incendiary projectiles” emphasises the particular threat to civilians: In the first place, they are very effective in destroying urban centres and buildings in general. Secondly, whereas ordinary shells only cause damage at the point where they fall, the fires caused by incendiary projectiles are likely to spread considerably. Incendiary projectiles may be used to increase the horror of the effects produced by explosive projectiles. This threatening character is more pronounced as the range of the materials employed increases. This is particularly the case when inhabited places are bombarded by aircraft, since in such bombardments incendiary bombs are usually employed for the abovementioned purposes.

Apart from a convincing argument for the prohibition of incendiary projectiles, this was a perspicacious description of their character and use: as the report specifies, incendiary projectiles were regarded as particularly offensive by most of the delegations. In the resolutions adopted at the end of the Committee’s work the conclusion was drawn when it declared “that projectiles specifically intended to cause fires should be included in qualitative disarmament.” However, the Committee attached some exceptions to the proposed rule. Its definition would not apply “either to projectiles specially construed to give light or to be luminous and, generally, to pyrotechnics not intended to cause fires, or to projectiles of all kinds capable of producing incendiary effects accidentally.” It also considered that “qualitative disarmament should not extend to projectiles designed specifically for defence against aircraft, provided that they are used exclusively for that purpose.”

13 14

15 16

Ibid., para. 15. Sir John Simon, representative of the United Kingdom in the General Commission, defined particularly offensive weapons as “arms singularly calculated to assist attack against national defence.” Records of the Conference, Series B – Minutes of the General Commission, Vol. I, 115. This language makes clear, first, that the addition as a separate criterion of greatest efficacy against national defence was really redundant, and, second, that considerations of prevention of aggression were equally important in qualitative disarmament as were considerations of protection of the civilian population. Report of the Special Committee, Resolutions. Ibid., and paras. 16-17.

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As for “appliances such as flame-projectors designed to attack not objects but persons,” the Special Committee gave an entirely different reason for their prohibition, namely “the cruelty inherent in the use of these appliances, which cause suffering that cannot be regarded as necessary from a military standpoint.” A majority of the Committee held moreover that such appliances also possess a specifically offensive character. The conclusion in the Committee’s Resolutions was that “appliances designed to attack persons by fire, such as flame-projectiles, should be included in qualitative disarmament.” It should be emphasised that in order to ban the flamethrower the Committee had to go beyond its terms of reference and place reliance in the established principle prohibiting the use of all means of warfare calculated to cause unnecessary suffering. It had to do this in a context where the weapon at issue was intended for use especially against combatants – just like the light explosive projectile and the dum-dum bullet of earlier days. The General Commission accepted the considerations and conclusions of the Special Committee without discussion. The draft Resolutions concerning Conclusion of the First Phase and Preparation of the Second Phase of the Conference (discussed on 20 and 22 July 1932) mention under the “Conclusions of the First Phase of the Conference” that “[c]hemical, bacteriological and incendiary warfare shall be prohibited under the conditions unanimously recommended by the Special Committee” – a formulation the Commission adopted without vote. In the second phase of the Conference (destined to peter out in 1933 without having obtained any tangible results) the Special Committee dealt with the “question whereby qualitative disarmament could be effected”. Under this heading, the Committee discussed whether the prohibition on use of chemical, incendiary and bacteriological weapons should be absolute or subject to reciprocity; whether an absolute prohibition on wartime use could be accompanied with a prohibition of peacetime preparations of such use; whether supervision of the latter prohibition would be practicable; and, finally, what special sanctions should be envisaged for the event of a breach of the prohibition on use. 17 18

19

Ibid., paras. 18-19 and Resolutions. Records (op. cit. note 14) pp. 154, 180. The only opposition came from the Soviet representative, who felt that the General Protocol of 1925 already contained the same elements and that the proposed paragraph might induce governments which had not yet ratified or signed the Protocol, to refrain from doing so on the argument that the Disarmament Conference was still dealing with the matter; ibid., p. 180. Report of the Special Committee, para. 9; see also paras. 13, 19. The Resolution of July 1932 of the General Commission defined the task of the Special Committee in these terms: “Rules of international law shall be formulated in connection with the provisions relating to the use of chemical, bacteriological and incendiary weapons and bombing from the air, and shall be supplemented by special measures dealing with infringement of these provisions.” Records (op. cit. note 14) p. 155.

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The tendency at the Conference was to opt for an absolute prohibition on use rather than one subject to reciprocity. However, this would either require an effective ban on peacetime preparations or, at the very least, effective special sanctions for the event of a wartime breach. On this, the Special Committee ultimately concluded that a ban on peacetime preparations for incendiary warfare was virtually impossible and at best was doomed to remain ineffective. Nor did the Conference find a solution for the problem of special sanctions against violations of the prohibition on use. The comprehensive draft Convention on Disarmament which the British Government introduced in March 1933 in a last attempt to revive the dying Conference, had therefore returned to a prohibition subject to reciprocity: the draft text on the prohibition of chemical, incendiary and bacteriological weapons specified that the prohibition would not deprive “the victim of the illegal use of chemical or incendiary weapons of the right to retaliate, subject to such conditions as may hereafter be agreed.” In conclusion, while the Disarmament Conference at one time came close to an express prohibition of defined incendiary weapons, it ultimately failed to achieve its purpose – and the grounds for this failure have kept their interest for today.

20

21

22

The conclusions of the Special Committee are of sufficient interest to be quoted here in full: The apparatus and substances suitable for the conduct of incendiary warfare are not exclusively applicable to such warfare, with the exception of specifically incendiary shells and bombs; the latter are easily manufactured and can be quickly produced, but it would be possible to prohibit their manufacture, import, export or possession. It is not possible in practice to prohibit the manufacture, import, export or possession of incendiary apparatus and substances which are suitable for both peaceful and military purposes. No special training of armed forces is required for purposes of incendiary warfare. The Committee regrets that it is unable to suggest any other practical methods to enforce the prohibition of the preparation of incendiary warfare. Conf. D. 152; Chemical, Incendiary and Bacteriological Weapons, Special Committee, Second Session (Nov. 17 to Dec. 13, 1932): Reply to the Questionnaire submitted by the Bureau to the Special Committee, 13 Dec. 1932, p. 23. For a fuller discussion of the debate on methods of qualitative disarmament, with special focus on the question of sanctions, see this author’s Belligerent Reprisals (1971) p. 90 et seq. Art. 47; Conf. D. 157(1); Geneva, 7 March 1933.

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In the wars waged since the failure of the Disarmament Conference, all conceivable types of incendiary weapons have been used in all kinds of situation. Incendiary bombs, combined with other bombs, were in common use for the bombardment of industrial objectives or zones containing such objectives, and of inhabited areas in the case of terror bombardments. In some instances (Hamburg, Dresden) this resulted in firestorms which virtually annihilated entire built-up areas, killing or grievously injuring those living in the areas. The apotheosis of this development came with the attack with nuclear weapons in Hiroshima and Nagasaki, where the combination of explosive and incendiary effects culminated with that of radioactive radiation. These experiments were not repeated; only “conventional” incendiary bombs continued to be in use, although provided with ever increasing fire-raising power. A strong case can be made that such bombardments were as illegal at the time as they are today. This however is not the point at issue here, and it is another matter altogether to suggest that the use of incendiary bombs in the course of these bombardments had in and of itself been in contravention of the law in force at the time. To my mind, there is no sufficient ground to warrant such a suggestion. As with incendiary bombs, so too did flamethrowers remain in common use after the Disarmament Conference had singled them out for special attention. A typical and frequently effective use was against the occupants of pillboxes and similar structures, who were very difficult if not impossible to target with other means. This particular use throws into doubt the opinion of the Special Committee that flamethrowers typically “cause suffering that cannot be regarded as necessary from a military standpoint.” There is no denying the horrible suffering of soldiers attacked with flamethrowers, but the argument of overriding military necessity is hard to refute. This leads me to the conclusion that despite attempts in this direction at the Disarmament Conference, there is no question that the existing law would have prohibited all use of flamethrowers against combatants. The above conclusions do not appear to depend on the incendiary agents used in the various incendiary weapons. Yet the introduction and extensive use of napalm has given rise to strong protests throughout the world. Should one then come to a different conclusion for this particular incendiary agent? The term “napalm” has come to stand for a whole range of incendiaries and now in fact includes “all types of thickened hydrocarbons used as incendiary 23

24

See the Interim Report on Napalm and Incendiary Weapons published in 1972 by the Stockholm International Peace Research Institute (SIPRI), Appendix II: The Indiscriminate use of modern incendiary weapons. Supra, text at note 17.

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agents.” The various types are adapted to different purposes, conditions and methods of delivery. Thus, napalm can be the payload of incendiary bombs used against industrial or urban areas (this was the type of use napalm was specifically developed for during the Second World War); it can be used in the shape of firebombs delivered from the air against tanks and other military vehicles or fixed military installations; such fire-bombs (thin-walled containers filled with some hundreds of litres of napalm) can equally be employed as anti-personnel weapons against massed infantry, guerrilla fighters hiding in a dugout or enemy village; and so on. Then, napalm can be used in flamethrowers both of the portable and mechanised types. In view of this variety of possible uses, it is not hard to conclude that certain uses of napalm have been in contravention of existing law. It was often used in situations where civilians were particularly endangered and indeed constituted an important part of the victims. This was true of the napalm bombs dropped on enemy cities during the Second World War. It was equally true in more recent armed conflicts of the guerrilla type, where guerrilla fighters were found (or were suspected to be) in the immediate vicinity of, or intermingled with, the civilian population. There can be little doubt that in these situations napalm was used in plain violation of the principle of discrimination between combatants and civilians. The anti-personnel use of napalm, whether air delivered or ejected from flamethrowers, is bound to cause extreme suffering to victims who survive the attack. While this extreme suffering may be regarded as counterbalanced in some circumstances by the military interests at stake (as in the case, mentioned above, of attacks on pillboxes), in other situations the use of napalm as a means of incapacitating enemy combatants appears far from indispensable and, indeed, not specially effective. In such conditions it comes close to violating the prohibition on use of means of warfare calculated to cause unnecessary suffering. Yet, no matter how reprehensible such specific uses of napalm may be, the question at issue here is not whether these uses are in contravention of the law in force but whether the law of war provides a general prohibition of all use of napalm, irrespective of the situation and the military interests involved. In my considered opinion, no such general prohibition on the use of napalm can be distilled from the law in force. From a humanitarian point of view this presents a highly unsatisfactory picture of the law relating to the use of incendiary weapons. Not surprisingly, attempts have been made and are being made to introduce some legal restraints on the use of (certain) incendiary weapons. These attempts are the subject of the next section. First, it may be useful to look at the various available solutions.

25

Report of the Secretary-General on Napalm and other incendiary weapons and all aspects of their possible use, A/8803, para. 31.

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In effect, restraining rules may prohibit a weapon per se, or its use, or certain specific uses. The first two possibilities fall in the category of “qualitative disarmament”, presenting a mixture of humanitarian and disarmament law. The third possibility falls exclusively under the heading of the humanitarian law of armed conflict. A prohibition of incendiary weapons per se implies a ban on possession. Dependent on the terms of the agreement, such a ban could apply only in time of war or in peacetime as well. The Special Committee of the Disarmament Conference had this type of prohibition in mind as the most radical realisation of the idea of qualitative disarmament – and gave it up when it became convinced that peacetime preparations, stockpiling et cetera could not effectively be prevented. Prohibitions on use, the next step, can be of three types. One is the absolute prohibition which continues to bind a belligerent party even after it has become the victim of a violation by the adverse party. Such a prohibition may only be expected when the contracting parties believe that the prohibited weapon, either, will never be used, or consider its use so utterly reprehensible that they want to forswear it no matter what happens; or, alternatively, when the ban is accompanied with effective sanctions protecting the belligerent party, victim of a violation, against the adverse effects on its military situation. The Disarmament Conference pursued this latter idea for a while as the next best type of qualitative disarmament, inter alia with respect to incendiary weapons. In the end, however, it had to admit defeat here as well. Next comes the general prohibition on use but which is subject to reciprocity. Such a prohibition may in practice amount to little more than a no-first-use declaration. There remains the possibility of a prohibition on specified forms of use. A prohibition of this type might start out from, and reaffirm, the prohibition on use of weapons calculated to cause unnecessary suffering and the distinction between combatants and civilians. To be useful, it should then seek to create a somewhat broader margin of protection for one or both of these categories than these basic principles of the law of armed conflict already afford. In the light of this wide range of possible legal restraints on the possible use of weapons it is of interest to examine which avenues have actually been chosen to deal with the problem of incendiary weapons in particular. 5

Recent Trends and Expectations

In 1955, the ICRC published its Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, as a first step towards a new, adequate codification of the areas of humanitarian law not covered in the Geneva Conventions of 1949. The draft articles on prohibited weapons in the text

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did not refer to incendiary weapons. As explained later, the ICRC had assumed “that the terrible damage to the civilian population by incendiary bombs was mainly due to their indiscriminate use,” and this was dealt with in another part of the Draft Rules. The second version, published in 1956 under the title Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, did include a prohibition on the use of “weapons whose harmful effects – resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents – could spread to an unforeseen degree or escape, either in space or in time, from the control of those who employ them, thus endangering the civilian population.” (Art. 14) As explained in the comment on the draft article, whilst the protection of the civilian population had been the main motive and, indeed, the determining consideration for the proposed prohibition, it was meant to ban all possible uses of the weapons in question and, hence, to apply as between the armed forces as well. On the other hand, only such use of these weapons would be prohibited which would meet all the conditions enumerated in the text. The commentary points out that incendiary weapons “are sometimes limited in their effects e.g. the flamethrower or napalm when used against a tank, but sometimes have uncontrollable consequences as in the case of certain bombs scattering inflammable material over a considerable distance.” As it was the use not of entire categories of weapon (such as incendiary weapons) but of weapons producing certain effects the ICRC wanted to see prohibited, the conclusion may be that incendiary weapons with limited effects such as the flamethrower and (as it was then thought) napalm would stay outside the proposed prohibition. As is well known, the only time the Draft Rules were the object of serious discussion was at the 19th International Red Cross Conference held at New Delhi in 1957. With that, matters came to a standstill. As for Article 14, the discussion at New Delhi concentrated solely on the use of nuclear weapons. Incendiary weapons and napalm in particular were not mentioned in the debate. Things changed with the adoption of a series of three resolutions: Res. XXVIII of the 20th International Red Cross Conference (Vienna, 1965), Res. XXIII of the International Conference on Human Rights (Teheran, May 1968) and Res. 2444 (XXIII) of the UN General Assembly (December 1968). Herewith the discussion on the “reaffirmation and development of international humanitarian law applicable in armed conflicts” (the phrase currently used by the ICRC) was reopened. In February 1969, the question of napalm was among the issues submitted to a group of experts convened by the ICRC. The discussion was not 26 27 28 29

Part I, General Principle No. IV; Part II, Arts. 10, 11. Draft Rules, 2nd version (Geneva, 1958), commentary, p. 106. Ibid., pp. 102-103. Ibid., p. 104.

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conclusive: some experts held that napalm and other incendiary weapons cause a sort of asphyxia and therefore fall under the Geneva Protocol of 1925, whereas others had some difficulty with this assimilation of incendiaries to chemical and bacteriological weapons. The latter experts also pointed to the effectiveness of napalm and other incendiary weapons in given situations, and in their view, the important thing to do was to place restrictions on use of the weapons. The ICRC report concluded that for the time being, and without prejudice to a more complete prohibition, the only practicable course open to the Red Cross was the one pointed out by the last-mentioned experts. The UN Secretary-General in a report dated November 1969 endorsed this conclusion: Reminders to parties to conflicts that in any event the employment of incendiary weapons, such as napalm, should be accompanied by special precautions to prevent them from unduly affecting members of the civilian population or disabled members of the armed forces, or causing unnecessary suffering to combatants would therefore appear to be desirable. Moreover, in view of the reference to napalm in the Teheran Conference resolution, the legality or otherwise of the use of napalm would seem to be a question which would call for study and might be eventually resolved in an international document which would clarify the situation.

In his second report on the subject, of September 1970, the Secretary-General elaborated the idea of a further study of the effects of napalm on human beings and the living environment. Upon his suggestion,  the General Assembly at its twenty-sixth session, in December 1971, requested him to prepare, with the aid of qualified consultant experts, a report on the matter, extending it to cover “other incendiary weapons” besides napalm.

30

31

32 33 34

As to this argument, see supra, section 3. The experts referred not only to the League disarmament discussions but also to the fourth preambular paragraph of the Teheran Resolution, which mentions “the use of chemical and biological means of warfare, including napalm bombing.” It should be noted, however, that the Group of Experts consulted by the UN Secretary-General on the subject of chemical and bacteriological (biological) weapons and the effects of their possible use, did not include napalm in their study, on the ground that this means of warfare had better be treated in one category with explosives; Report of the Secretary-General, S/9292, para. 19. Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, report submitted by the ICRC to the 21st International Red Cross Conference, Geneva, May 1969, pp. 60-63. A/7720, 20 Nov. 1969, para. 200. A/8052, 18 Sept. 1970, para. 126. Res. 2852 (XXVI) of 20 Dec. 1971, operative para. 5.

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This extension was in line with a suggestion in a document on Protection of the Civilian Populations against Dangers of Hostilities that the ICRC had submitted to the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in Geneva from 24 May to 12 June 1971. While not specifically entering into the question of napalm and other incendiary weapons, the Conference suggested that something ought to be done about the problem of weapons, especially those which were not the subject of discussion in the United Nations, the Conference of the Committee on Disarmament, or any other competent body. The second session of the Conference of Government Experts (Geneva, 3 May - 3 June 1972) had before it the text of the Draft Additional Protocol to the Four Geneva Conventions of August 12, 1949, as submitted by the ICRC. This dealt with the question of weapons under the heading, not of protection of civilians, but of combatants. Rather than proposing specific prohibitions against any particular weapon, draft Article 30 reaffirmed the principles stating that belligerents have no unlimited choice of means of combat and prohibiting the use of means of warfare calculated to cause unnecessary suffering (to which was added: or which are particularly cruel). The final paragraph provided a modified version of the Martens clause to the effect that pending the adoption of more complete regulations, in cases not provided for in the Protocol, the principles of humanity and the dictates of the public conscience would continue to safeguard populations and belligerents. While the ICRC commentary to the Draft Protocol offered no explanation of its marked reticence in respect of possible prohibitions on (use of ) specified weapons, its representative at the Conference explained the point to the Commission (III) that discussed the parts of the Draft Protocol that included Article 30. Other bodies, he said, dealt with the question of the prohibition of nuclear, bacteriological and chemical weapons, and it might be preferable that those bodies would deal as well with those “conventional” weapons that caused deep concern to public opinion. He appreciated the request to the UN Secretary-General to prepare a special study on the subject of napalm and incendiary weapons. Understandably, prohibitions of specific weapons so far had not been included in the Geneva Conventions: as he said, “the rules included in the Conventions were of an absolute nature, whereas the prohibition of weapons was subject to reprisals or even to reciprocity.” On the other hand, the effect of the 35 36 37 38

Doc. CE/3 b, 117. Report of the Conference, para. 477. The Report on the Work of the Conference was published by the ICRC in two volumes in July 1972. This statement cannot be denied a degree of veracity, although it disregards the serious attempts of the League Disarmament Conference to arrive at absolute prohibitions on chemical, incendiary and bacteriological weapons. It also disregards the absolute

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Geneva Conventions and of the proposed Protocol was to limit or indirectly to prohibit the use of arms by imposing greater respect for certain categories of persons and objects. These were the reasons why no prohibitions of specified weapons had been proposed in Article 30, and if such prohibitions should appear to be necessary, it might be preferable to embody these in a separate instrument. In the discussion, a variety of ideas were put forward and numerous amendments were submitted. While some favoured maintaining the gist of Article 30 as drafted by the ICRC, other ones aimed at introducing specific prohibitions: of weapons having indiscriminate effect, or of nuclear, bacteriological and chemical weapons in particular; of weapons destroying the environment; and of specified types of conventional weapon likely to cause unnecessary suffering to civilians and belligerents alike. Obviously, the last-mentioned category was the area where propositions relating to incendiary weapons could be expected. Actually, very few amendments to Article 30 referred expressly to incendiary weapons. One amendment, introduced by the experts of Egypt, Finland, Mexico, Norway, Sweden, Switzerland and Yugoslavia, proposed to prohibit the use, inter alia, of incendiary weapons containing napalm or phosphorus. Another amendment, submitted by the experts of the Netherlands, aimed at prohibiting certain weapons “for use in circumstances where they may affect the civilian population”, and among the weapons enumerated were “napalm bombs and incendiary weapons” (a description which was not meant to be technically precise, as it was left to experts to give such a more precise definition). The authors of the first-mentioned amendment argued that: disarmament negotiations were based primarily on strategic considerations, while the present ICRC conference started out from humanitarian concerns. Disarmament talks – which, they thought, had often not led to any results – sought the reduction or elimination of stockpiles of while maintaining a balance between the main opponents; at this conference, the authors [of the amendment] found it fully justified to seek the prohibition of the use of weapons which were blind and cruel.

39 40 41

42 43

character which at least the prohibition of bacteriological weapons has assumed with the adoption of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, signed 10 April 1972 in Washington, Moscow and London. Report, Vol. I, para. 3.14. Paras. 3.17 et seq. CE/COM III/C 33. The same language was later used in a Spanish amendment, CE/COM III/C 57 Rev. 1, which in fact was an attempt to bring together various amendments introduced by other delegations. CE/COM III/C 26. Para. 3.20.

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This reasoning brings to mind the history of the League Disarmament Conference. In the terms of that Conference, the proposed prohibition fell under “qualitative disarmament”; in other words, it would be a disarmament measure, excluding the use of certain weapons in armed conflict. At the Disarmament Conference, which had actually sought to bring about an even broader prohibition on use of incendiary weapons than the one now proposed, humanitarian concerns and strategic considerations had played an equally important part in determining whether such weapons met the criteria for qualitative disarmament. In one word, while the delegates to that Conference were no less idealistic or humanitarian than the authors of the present amendment, they were perhaps less naïve and more realistic in their approach to the problems involved in qualitative disarmament. To my mind, it is particularly naïve – and it represents a dangerous trend – to suggest that a discussion of arms limitations should be governed by other considerations in an ICRC-organised conference than in the context of disarmament talks. Conferences dealing with proposed rules on the conduct of hostilities should be equally realistic, i.e., basing themselves on the solid ground of military and humanitarian considerations carefully balanced, whether they take place in the sphere of the ICRC or the CCD. This criticism is levelled against the arguments used in defence of the amendment. As for its merits, the basic questions are whether “incendiary weapons containing napalm or phosphorus” are, in the terms of Article 23(e) of the Hague Regulations, weapons “calculated to cause unnecessary suffering”, or whether they have, in the language of the Disarmament Conference, a character “most specifically offensive or most efficacious against national defence or most threatening to civilians.” The authors of the amendment evidently answered these questions, or part thereof, in the affirmative; as one of them pointed out: “napalm might be an effective weapon against tanks invading a country, but it was necessary to refrain from using it against individuals or in circumstances where the civilian population was likely to suffer.” Nor did the amendment (which listed other conventional weapons as well) remain unsupported by other experts. The arguments of opponents concentrated on the opportunity of having a list of prohibited weapons (which was bound to be incomplete and transitory) and with the desirability of discussing arms limitations in this or in another forum, rather than with the merits or demerits of the weapons at issue or of specific incendiary weapons in particular. The conclusion seems therefore justified that there existed a strong tendency to get rid of napalm and phosphorus, for some, unconditionally, for others, provided the military balance be maintained. The amendment of the seven delegations was limited to incendiary weapons “containing napalm or phosphorus”. The legality of other incendiary weapons, they explained, should be “assessed in the light of the general principles forbid-

44

Ibid.

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ding needlessly cruel weapons.” The Dutch Amendment, on the other hand, encompassed “napalm bombs and other incendiary weapons.” Yet, this amendment purported solely to protect the civilian population and left untouched the use of incendiary weapons among combatants (and this not merely against tanks but against personnel as well). Intended as a compromise between the total prohibition on use proposed by the “seven” and the unwillingness demonstrated by a number of important delegations to accept any express prohibitions, the proposal actually belonged under the heading of protection of the civilian population rather than of arms limitations or “qualitative disarmament”. The discussions at the Conference of Government Experts had made clear that further study was required. This realisation resulted in a suggestion that the ICRC arrange a meeting of legal, military and medical experts to examine the problems involved. A written proposal to that effect introduced in plenary by the experts of nineteen governments drew widespread support. Not long after these events, in October 1972, the UN Secretary-General published his report on Napalm and Other Incendiary Weapons and All Aspects of Their Possible Use. The report is documentary in character and describes both the technicalities of the agents and weapons in question as well as the military and medical aspects of their use. The closing chapter goes one step further, linking up the documentary evidence to the known principles and rules of the law of armed conflict. Pointing out that the use of incendiary weapons often has indiscriminate effects and that much of the injury they cause may be superfluous, it concludes that there is an “urgent need for international consideration of effective measures of disarmament concerning incendiary weapons,” or, in the more precise terms of a final paragraph, the need “of working out measures for the prohibition of the use, production, development and stockpiling of napalm and other incendiary weapons.” This conclusion leaves many important questions open. What should be banned: all conceivable types of “napalm and other incendiary weapons” or only specified types, and, if so, which ones? Should the prohibition on use be absolute or subject to reciprocity? Can their “production, development and stockpiling” be effectively prohibited? Nor does the answer to these and suchlike questions follow readily from the earlier, documentary chapters of the report. As was the case with the discussions in the Conference of Government Experts, so too does 45 46 47 48 49 50 51

Ibid. CE/SPF/2. Complying with this request, the ICRC arranged a meeting of some 30 experts which held two sessions, in February and June 1973. A/8803, 9 Oct. 1972. Para. 186. Para. 187. Para. 184. Para. 193.

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this report leave ample room for further expert investigation – not to mention the ensuing political debate on the desirability and feasibility of this, that or the other solution. The General Assembly in its 27th session, in December 1972, wisely confined itself to commending the report “to all Governments and peoples” and inviting the comments of governments. As a result of an amendment proposed by Jordan, Kenya, Syria and Uganda, the resolution also “deplores the use of napalm and other incendiary weapons in all armed conflicts;” an unqualified statement which can hardly be regarded as a useful contribution to the solution of the problems posed by the existence since time immemorial and recent further development of incendiary weapons. 6

Speculations de Lege Ferenda

In the light of the foregoing, there can be little doubt that “something ought to be done” about incendiary weapons. The question is: what, and about which weapons in particular? Without any pretence at knowing the answers to these questions, it may be useful to review the various possible solutions and to attempt an evaluation of their desirability and feasibility, starting out with the extremes and gradually working our way to the middle – where, as so often, the greatest chances of success may lie. One extreme would consist of a resolution of the UN General Assembly “deploring” or “condemning” the use (possession, production) of incendiary weapons or even qualifying all of this as unlawful, contrary to the Charter, and so on. I venture to submit that, no matter the significance of General Assembly resolutions, a resolution of this type will have singularly little impact on the practice of incendiary warfare. Any solution, in order to be effective, needs to be of the conventional type and the treaty in question ought to have the widest possible adherence. At the other extreme one finds the perfect disarmament agreement banning the use, possession, development, stockpiling et cetera, in time of war as in time of peace, of all incendiary weapons. Keeping in mind the reluctance of states to enter into a treaty of this kind concerning the even more reprehensible and less commonly used chemical weapons, the assumption that such a treaty could be brought about any time soon on incendiary weapons seems unrealistic. 52

53 54

SIPRI’s Interim Report (supra note 23) was published at about the same time. Its annexes usefully supplement the documentary material in the report of the SecretaryGeneral. Res. 2932A (XXVIII), 29 Nov. 1972. The only immediate effect of the amendment was to force fifteen mainly Western states to abstain in the vote on the resolution.

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Apart from this political assessment, it may also be doubted that the disarmament part of the treaty could ever be effective. In practice, the treaty would therefore amount to nothing more than a ban on use of all incendiary weapons. It would be a matter for expert investigation whether a disarmament-type treaty could make sense for certain well-defined categories of incendiary agents or weapons. If so, the conclusion of such a treaty would be a worthwhile goal, especially if the effort could be combined with the adoption of rules restricted to limiting or banning the use of other types of incendiaries, thus avoiding the effect that the disarmament measure relating to one type of incendiary drives belligerents to intensify the use of alternative types. This leaves what to my mind is the most realistic approach to the matter, which is to pursue the conclusion of a treaty limiting or prohibiting the use of (all or some) incendiary weapons. The minimum solution would be a provision along the lines of the Dutch proposal at the Conference of Government Experts, prohibiting such use in circumstances where the civilian population might be endangered. This would considerably enlarge the measure of protection of the civilian population against the effects of use of such weapons, since under existing principles of the law of armed conflict the most the civilian population may expect is not to be made the object of direct attack, to be spared as much as possible in the event of attacks on military objectives and in particular not to be made to suffer disproportionate damage as a consequence of such attacks. Although the above minimum solution would offer combatants no protection whatever from the use of incendiaries, it might be pursued nonetheless if it were apparent that progress in the protection of combatants may not be expected anyway. However, there is no reason to start out from this premise. This leads to the question whether there might be value in a prohibition on the use of incendiary weapons as anti-personnel weapons. At first glance, this may look like a valuable suggestion. After all, besides the use of incendiaries against the civilian population and urban areas, it is precisely their use against “soft targets” like enemy soldiers, guerrilla fighters and so on that has given rise to the strongest protests and is most often considered to cause unnecessary suffering. Yet, I would not attach much value to such a provision. It seems highly unlikely that in battlefield conditions (as opposed to the theorist’s study) attacks with incendiary weapons could be restricted to “hard targets” such as tanks, pillboxes, gun emplacements et cetera. At all events, the excuse that the gun was the target and the infantry men in its vicinity were accidentally hit lies readily at hand. The result will be that the prohibition on anti-personnel use will soon have become a dead letter. 55 56

Supra, text at note 42. This argument applies to the international law prohibition of anti-personnel use. Obviously, a prescription to this effect in an army field manual can be effective if it is rigorously enforced.

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All things considered, I opt for a prohibition on use of incendiary weapons in all circumstances as the optimum solution within reach in present-day conditions. Evidently, such a sweeping prohibition cannot be expected to apply without exceptions. The Special Committee of the Disarmament Conference excepted tracer ammunition; other specific incendiary weapons may have to be excepted as well, either because they just cannot be effectively prohibited (e.g., the Molotov cocktail) or because their military utility outweighs the suffering they cause. This, again, will be a matter for expert investigation. Another matter deserving further discussion would be the modalities of any future prohibition on the use of incendiary weapons. In particular, should it be absolute, i.e., leaving the party victim of an attack with the prohibited weapon no room for retaliation? On this question, I confine myself to the following considerations. The idea of creating special sanctions (e.g., prompt and effective measures against the violator by the Security Council or, vaguer, the “world community” or, again, on a regional basis) seems as much of an illusion today as the idea of effectively prohibiting preparations. On the other hand, the use of incendiary weapons has nothing as weird and “inhuman” as has the use of bacteriological means of warfare. Indeed, the use of the former appears as much part of the normal pattern of warfare as the latter would seem to be out of the ordinary. In these circumstances, the only realistic approach may be to be content, for the time being, with an attempt to achieve a prohibition on use of incendiary weapons that is either expressly or implicitly subject to reprisals in kind or, even, reciprocity. Nor would this be a negligible achievement: the fear of retaliation has earlier proved to represent a powerful incentive to the faithful observance of arms limitations. Moreover, results in the sphere of qualitative disarmament to this day have been so scarce that even a seemingly modest achievement would be welcome.

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On the implications of such a qualified prohibition, see Belligerent Reprisals (supra note 21), section 7.1.3.

Chapter 14 The Soldier and his Golf Clubs*

The purpose of this paper is to discuss some aspects of the principles of international humanitarian law relating to the choice of weapons of war. While its source of inspiration lies in remarks made by Jean Pictet in the course of a conference on weapons held in 1974, the discussion takes as its point of departure the St. Petersburg Declaration of 1868, whereby the Contracting Parties engage mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances.

The Declaration, creation of an International Military Commission assembled for that purpose at St. Petersburg, admittedly was of strictly limited import from a substantive point of view, and it was doomed to lose the greater part even of this modest significance as a consequence of developments in the techniques of war. Yet, it stands out as a remarkable achievement, on two counts. First, this was the first time ever for an international agreement to put a stop to the use in war of a specific small-arms munition which, although reprehensible from a humanitarian point of view, at the same time was certainly not devoid of all military utility. The main importance of the Declaration, however, doubtless lies in the remarkable statement of principles which precedes the quoted substantive provision: That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men;

*

1 2

Published earlier in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles, in Honour of Jean Pictet (1984) pp. 369385. Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24.9-18.10 1974. See infra, text at note 37. Declaration reprinted in D. Schindler & J. Toman, The Laws of Armed Conflicts (1973) p. 95.

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Chapter 14 That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.

By this preamble, the St. Petersburg Declaration can with some justification be said to have furnished the basis for the entire body of international humanitarian law of war as it has developed since. It dealt, in effect, with the core problem of that body of law, which is the confrontation between the “necessities of war” and the “requirements of humanity”: at what point ought the former to yield to the latter? Both, it should be emphasized, were entirely legitimate considerations in the eyes of the members of the International Military Commission, and they have remained so to the present day. The conflict is easily resolved whenever one of the two opposing forces is clearly the weaker one, perhaps even to the extent of being virtually negligible. Thus, no one will probably object on humanitarian grounds to the contention that an isolated munitions dump may be attacked and destroyed, even though it is foreseeable that a soldier guarding the dump may lose his life as a consequence of the attack. Again, the requirement that prisoners of war must be detained in a safe place will meet with little or no protest on grounds of military necessity. In many other instances, however, the solution does not lie so readily at hand, and it must then be arrived at through a difficult process of weighing the various factors involved in the equation. The principal factors emerge clearly from the quoted preambular paragraphs: they are: the distinction between the “military forces” of the enemy State and its civilian population, and military necessity defined as the need “to disable the greatest possible number of men” without employing means that would uselessly aggravate their fate. The principles enunciated in the preamble of the St. Petersburg Declaration of 1868 proved far more durable than the specific rule they preceded; indeed, they were very much in the minds of those participating in the weapons conference of 1974, mentioned in the opening paragraph. Prior to turning to that event, however, we will examine the influence of these principles at an earlier occasion, viz., the Hague Peace Conference of 1899. This influence is conspicuous even in the very terms of the Hague Convention and Regulations Respecting the Laws and Customs of War on Land. The preamble to the Convention, in its version of 1899, refers to the “desire to serve … the interests of humanity and the ever increasing requirements of civilization” and the concomitant “desire to diminish the evils of war so far as military necessities permit”; and Article 23(e) of the Regulations lays down the prohibition “to employ arms, projectiles, or material of a nature to cause superfluous injury” (in the English version of 1907: “calculated to cause unnecessary suffering”). Then, an 3

See Schindler & Toman, op. cit. note 2, p. 57.

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express reference to “the sentiments which found expression in the Declaration of St. Petersburg” was included in the preambles to the three Declarations adopted in 1899 and by which the Contracting Parties agreed: –

– –

to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of a similar nature (Declaration IV, 1); to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases (Declaration IV, 2); and to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions (Declaration IV, 3)

While it may thus be evident that the principles of 1868 did exert a certain influence at the Hague Peace Conference of 1899, their real impact on the decisionmaking process at this Conference can only be measured through an examination of its records, and notably those of the First Commission. This Commission had been charged with studying an ambitious programme, set out in the circular letter of the Russian Government of 30 December 1868 in the following terms: 1o. Entente stipulant la non-augmentation pour un terme à fixer des effectifs actuels des forces armées de terre et de mer, ainsi que des budgets de guerre y afférents; étude préalable des voies dans lesquelles pourrait même se réaliser dans l’avenir une réduction des effectifs et des budgets ci-dessus mentionnés; 2o. Interdiction de la mise en usage, dans les armées et les flottes, de nouvelles armes à feu quelconques et de nouveaux explosifs, aussi bien que de poudres plus puissantes que celles adoptées actuellement tant pour les fusils que pour les canons; 3o. Limitation de l’emploi, dans les guerres de campagne, des explosifs d’une puissance formidable déjà existants et prohibition du lancement de projectiles ou d’explosifs quelconques du haut des ballons ou par des moyens analogues; 4o. Défense d’employer dans les guerres navales des bateaux torpilleurs sousmarins ou plongeurs, ou d’autres engins de destruction de la même nature; engagement de ne pas construire, à l’avenir, de navires de guerre à l’éperon;…

4 5 6 7

Ibid., p. 141. Ibid., p. 99. Ibid., p. 103. “Circulaire du Comte Mouravieff aux Représentants diplomatiques accrédités auprès de la Cour de Saint-Petersbourg”, in Actes et Documents relatifs au Programme de la Conférence de la Paix, published by government order by Jonkheer van Daehne van Varick (1899).

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As may be evident from a lecture of these paragraphs, the concerns of the Russian Government were as much of a peace-oriented as of a humanitarian order. The former concern had strong budgetary implications: new inventions in the field of weapons technology tended to make the maintenance of a sufficient military capacity an increasingly expensive affair. The Russian suggestions, therefore, aimed at least in part at what nowadays is termed measures of disarmament. The question of principle involved in these ideas came up for discussion in the First Sub-commission of Commission I, which had been allotted land warfare in particular. The question was formulated in the following terms: Y a-t-il lieu de renoncer conventionnellement à l’emploi de tout perfectionnement nouveau dans l’art de la guerre et d’interdire la mise en usage dans les armées et les flottes de nouvelles armes à feu quelconques et de nouveaux explosifs, aussi bien que de poudres plus puissantes que celles adoptées actuellement tant pour les fusils que pour les canons?

It soon emerged that, although the beneficial effects of such a stop on the military budgets were evident to all, the hesitation actually to take it was equally widespread. Thus, the representative of the United States, Captain Crozier, let it be known that his Government “did not desire to limit itself in regard to the case of new inventions having for object the increase of efficiency of military weapons.” Again, the German technical delegate, Colonel von Gross von Schwarzhoff, although of the opinion that the means of warfare actually in existence were sufficient, added that “on ne peut se lier les mains d’avance car on ignore les moyens plus humains qui pourraient être inventés dans l’avenir.” A remarkable statement, which leaves one wondering whether in the eyes of the German delegate considerations of humanity were indeed so utterly dominant in the evaluation of future weapons developments as to exclude all other considerations. In the course of the debate both in this and in the Second Sub-Commission (charged with sea warfare in particular) numerous suggestions for specific restrictions were discussed. Few led to a positive result: they were in effect those embodied in the three Declarations mentioned above. A brief discussion of the motives leading to each of these restrictions is in order here. The prohibition to launch projectiles or explosives from balloons or analogous means, still very much a futuristic concept at the time, was accepted by the First Sub-Commission without a great deal of debate. The Dutch General den Beer Poortugael, supporting the proposal, asked rhetorically: “Ne semble-t-il 8 9 10 11

Conférence internationale de la Paix, La Haye 18 mai-29 juillet 1899, published by the Dutch Ministry of Foreign Affairs in a “new edition” (1907), Part II, p. 42. Ibid., p. 43. Ibid., p. 8. Ibid., p. 49.

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pas excessif d’autoriser l’emploi de machines infernales qui paraissent tomber du ciel?” Only after the proposal had been adopted did Captain Crozier express doubt that humanitarian motives could justify the ban, and he pointed to the possibility of future developments making the use of air-dropped munitions acceptable: Nous sommes sans expérience dans l’usage d’armes, dont nous proposons d’interdire, à jamais, l’emploi. Qui peut dire que supposant qu’on arrive à inventer des procédés pratiques d’employer les ballons, si cette invention ne sera pas de nature à rendre possible l’emploi au point critique du champ de bataille, dans des conditions tellement définies et concentrées, que cet emploi décidera de la victoire, partageant ainsi la qualité qu’ont toutes les armes perfectionnées de localiser à des points importants la destruction de la vie et des biens et d’épargner les souffrances de tous ceux qui ne se trouvent pas à l’endroit même où se décide l’issue; cet emploi tend à diminuer les maux de la guerre et à favoriser les considérations humanitaires, que nous avons en vue.

When the matter came up next in Commission I, he reiterated his views but declared himself prepared to accept the proposed ban for a limited period of five years. In this, he gained the support of several other delegates. The observations of one of them, the French General Mounier, are particularly illuminating in that he alluded in even more explicit terms than Captain Crozier had done to the distinction between combatants and civilians: Aujourd’hui les projectiles lancés du haut d’un ballon peuvent faire des victimes parmi les non-combattants. Mais l’usage de ballons plus perfectionnés peut devenir un moyen pratique et licite de faire la guerre.

After these deliberations, the proposal was accepted for a five-year period, mainly, it appears, on the ground that the means of warfare at issue was perceived to pose for the time being an incalculable risk to the civilian population. Gas projectiles, the use of which was prohibited by the second Declaration of 1899, were again something of the future. The Russian technical delegate, Captain Schéine, who introduced the proposal to ban these projectiles from use, referred to them as: “une nouvelle sorte d’explosifs, dont l’invention paraît possible.” Considerations of humanity were evidently paramount in the minds of the delegates deliberating this issue. For the overwhelming majority who expressed themselves in favour of the proposed prohibition, the main argument appears to have been the barbaric and unnecessarily cruel character of such a type of 12 13 14

Ibid., p. 57. Ibid., p. 7. Ibid., p. 64.

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weapon. This common feeling was given eloquent expression by Captain Schéine (who addressed the question from the point of view of warfare at sea): Beaucoup de personnes peuvent être sauvées même si elles sont blessées ou mises hors de combat, dans le cas où un navire est coulé par une torpille. Les gaz asphyxiants, au contraire, extermineraient l’équipage entier. Ce procédé irait donc à l’encontre de l’idée humanitaire qui doit nous diriger: trouver les moyens de mettre les ennemis hors de combat sans les mettre hors de ce monde.

The only dissenting voice came from the American delegate, Captain Mahan. His argument is worth quoting in full: 1o. L’objection qu’un engin de guerre est barbare a toujours été faite contre les armes nouvelles qui pourtant ont fini par être adoptées. Au Moyen Age, on adressait aux armes à feu le reproche d’être cruelles; plus tard, on s’en est pris aux obus et récemment encore – l’orateur s’en souvient très bien – aux torpilles. Il ne lui parait pas démontré que les projectiles à gaz asphyxiants seraient des engins inhumains ou inutilement cruels, et ne donneraient pas de résultat décisif; 2o. Il est le représentant d’une nation qui est animée d’un vif désir de rendre la guerre plus humaine, mais qui pourra se trouver forcée à faire la guerre, et il s’agit donc de ne pas se priver, par des résolutions hâtivement prises, de moyens dont plus tard on pourrait se servir utilement.

In the end, the Conference adopted the proposal with only the votes of the United States and Great Britain against. The third proposal to be discussed here and which led to the prohibition to employ so-called “dum-dum” bullets, was the one which gave rise to the longest and most fierce debate. This in contrast to the initial impression: in a first round of discussion in the First Sub-Commission, all delegates indicated their acceptance in principle and, subject to drafting changes, of the proposed ban. But this tranquil atmosphere in the Sub-Commission was radically disrupted when at the second reading, the British General, Sir John Ardagh, raised the question of war against savages: Dans la guerre civilisée, un soldat pénétré par un petit projectile est blessé; il se retire à l’ambulance, il n’avance plus. Le sauvage est bien différent. Quoique transpercé deux ou trois fois, il ne cesse pas de marcher en avant, il n’appelle pas 15 16 17 18

Ibid., p. 9. Ibid., p. 65. Ibid., pp. 46-47. Ibid., p. 50.

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les infirmiers, il avance toujours, et avant qu’on ait eu le temps de lui expliquer qu’il est en contradiction flagrante avec les décisions de la Conférence de La Haye, il vous tranche la tête.

This was a rather unfortunate approach to what was in reality a technical question of calibre and stopping power. Be this as it may, the first speaker to take issue with Sir John’s views was the Russian technical delegate Raffalovich: they were “contraires à l’esprit qui domine cette fin du XIXe siècle”; and he added another ground for his rejection: Au surplus, avoir deux sortes de projectiles, l’une pour les sauvages, l’autre pour les civilisés, c’est compliquer l’armement. On peut prévoir l’hypothèse de soldats stationnés hors d’Europe, armés de balles à l’usage des sauvages et se trouvant dans le cas de combattre des troupes régulières d’un État civilisé. Il leur faudrait alors deux sortes de cartouchières.

Another member of the Russian delegation, Colonel Gilinsky, argued that Sir John’s objection was in effect unnecessary: Dans la Déclaration de St. Pétersbourg de 1868, les Puissances contractantes ont décidé de ne pas employer ces balles dans la guerre entre elles. I1 est évident qu’il y a une lacune dans la déclaration de 1868, lacune qui permet d’employer contre les sauvages non seulement les balles “dum-dum”, mais même les balles explosibles.

The Sub-Commission thereupon adopted the proposal with only the British vote against. But the debate was to be reopened twice, both in Commission I and in the plenary Conference. In Commission I, Sir John Ardagh explained at length the technical grounds why his Government could not accept the proposed formula. From this statement, the concluding paragraph is worth quoting here: Toutefois, je désire répéter que nous sommes complètement d’accord avec les principes humanitaires proclamés dans la Convention de St. Pétersbourg, et que nous tâcherons d’en observer non seulement la lettre mais aussi l’esprit, en cherchant une solution sur la question du modèle de projectile à adopter. Je puis assurer la Haute Assemblée qu’il m’était très désagréable de me trouver obligé de voter, à cause des motifs que je viens d’exposer, contre une rédaction inspiré par des principes que je partage entièrement, et je garde encore l’espoir qu’il sera possible d’arriver à un vote unanime grâce à une rédaction qui 19 20 21

Loc. cit. Ibid. Ibid., p. 5.

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Chapter 14 laisserait de coté les détails techniques de construction, en affirmant les principes sur lesquelles nous sommes tous d’accord, – les principes énoncés dans la Convention de St. Pétersbourg – c’est-à-dire l’interdiction de l’emploi de balles dont l’effet aggraverait inutilement les souffrances des hommes mis hors de combat, ou rendrait leur mort inévitable.

An attempt to arrive at such a generally acceptable text was made in the plenary Conference by the main speaker against the proposal as it emerged from the Commission, the American Captain Crozier. He proposed the following more general and non-technical formula: L’emploi de balles qui infligent des blessures inutilement cruelles, telles que les balles explosibles, et en général toute espèce de balles qui dépasse la limite nécessaire pour mettre un homme immédiatement hors de combat, devrait être interdit.

Captain Crozier’s proposal was, however, never voted upon as the Conference decided on procedural grounds to give precedence to the proposal as accepted in Commission I. This proposal was then adopted with two votes against (Great Britain and the United States) and one abstention (Portugal). So much for the positive results of the Conference. For the rest, neither the proposals relating to the prevention of further technical improvements of weapons (discussed notably with respect to rifles) nor those designed to prevent the introduction of bigger guns or more powerful explosive charges, nor again the proposal to prohibit or limit the use of certain existing, extremely powerful high-explosive shells could muster sufficient support to be adopted by the Conference. The proposal relating to more powerful explosive shells is of particular interest to the present discussion of “military necessity” versus “requirements of humanity” in the choice of weapons. The Russian technical delegate, Colonel Gilinsky, formulated his suggestion as follows: … la Russie propose de ne pas employer pour l’artillerie de campagne des obus brisants ou à fougasses, et de se limiter aux explosifs existants sans recourir aux explosifs formidables qui sont employés pour les sièges.

The delegate did not indicate any particular reasons in support of his suggestion. It may be noted that it differed in one crucial respect from the prohibition achieved at St. Petersburg: while in 1868 a specific munition had been completely 22 23 24

Ibid., p. 56. Ibid., p. 61. Ibid., p. 48.

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banned from use, even where such use might be militarily advantageous, the proposal of 1899 merely aimed at restricting the use of specified artillery shells to sieges, where they were of proven military utility – and this without any noticeable concern for the fate of those human beings, combatants and civilians alike, who would be the victims of such use. Regrettably, the Russian proposal was hardly discussed at all. It therefore remains unknown on what grounds ten delegations expressed themselves in favour of the proposal and eleven against. It seems possible on the basis of the above survey to arrive at a somewhat more precise conclusion regarding the extent to which the deliberations and decisions of the Hague Peace Conference of 1899 stood under the influence of the principles proclaimed in 1868 by its predecessor, the International Military Commission assembled at St. Petersburg. The first conclusion is that these principles were in effect invoked by the delegates – and this not merely in a rhetorical sense – as the grounds underlying their decisions to prohibit for five years the use of air-dropped munitions and altogether to forgo the use of gas projectiles and dum-dum bullets. It should be noted, however, that positive results were few in number and constituted a small minority among the long series of proposals and suggestions submitted to the Conference: all the other ones were rejected after more or less prolonged debate. A further conclusion is therefore that in the great majority of cases the “requirements of humanity” did not by a long way carry enough weight to counterbalance the argument of “military necessity”. Nor is this conclusion new: it was already drawn at the time of the Conference by the American delegate, Captain Crozier. Speaking in the First Sub-Commission of Commission I to the question of the prohibition of dum-dum bullets, he summed up the spirit of the debate in the following terms: L’esprit général des propositions qui ont reçu l’accueil favorable de la SousCommission est un esprit de tolérance à l’égard des méthodes tendant à augmenter l’efficacité des moyens de faire la guerre et un esprit de restriction à l’égard des méthodes qui, sans être nécessaires du point de vue de l’efficacité, ont semblé inutilement cruelles. On a décidé de n’imposer aucune limite aux perfectionnements de l’artillerie, des poudres de chargement, des matières explosives, des fusils, tout en prohibant l’usage des balles explosibles ou dilatables, la projection de matières explosives du haut des ballons ou par des moyens analogues. Si l’on examine ces décisions, il semble que, lorsqu’on n’a pas imposé de restriction, c’est l’efficacité qu’on a voulu sauvegarder au risque même d’augmenter les souffrances, si cela était indispensable.

25 26

Ibid., pp. 48-49. Ibid., p. 57.

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With this we leave the Conference of 1899 and, passing over in silence such important events as the Conference on the Trade in Arms and the League of Nations Conference for the Reduction and Limitation of Armaments, we turn next to modern times, first, to 1966. In this year, nearly a century after the Declaration of St. Petersburg, Jean Pictet published a study entitled Les principes du Droit international humanitaire. That the central idea of the Declaration ranks high in Pictet’s system of humanitarian principles is evident from a reading of what he premises as the most fundamental principle of all humanitarian law, both of peace and war: Le respect de la personne humaine et son épanouissement seront assurés dans toute la mesure compatible avec l’ordre public et, en temps de guerre, avec les exigences militaires.

From this most fundamental principle of general humanitarian law he derives the principle of the law of war: Les belligérants ne causeront pas à leur adversaire des maux hors de proportion avec le but de la guerre, qui est de détruire ou d’affaiblir la puissance militaire de l’ennemi.

In elucidating this “principle of the law of war” Pictet enters into the question by what means the human resources of the enemy can be overcome: they can be killed, wounded or captured. As far as military efficiency is concerned, these means are equally useful as they all lead to the elimination of the adversary. On the humanitarian plane, however, an altogether different line of reasoning applies: La mort apparaît comme le mal suprême et irréparable. Et il y a de maints degrés dans la détresse du captif. L’humanité exige donc que l’on préfère la capture à la blessure, la blessure à la mort; que l’on épargne autant que possible les 27

28

29 30 31 32

This Conference, held in 1925 in Geneva under the auspices of the League of Nations, resulted in the conclusion of the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. For text of the Protocol, see Schindler & Toman, op. cit. note 2, p. 109. The Conference was held in Geneva from 1932 to 1934. It discussed, among other things, “the selection of certain classes or descriptions of weapons the possession or use of which should be absolutely prohibited to all States or internationalised by means of a general Convention”; Records of the Conference, Series B, Vol. I, p. 113. Published by the ICRC; the study had earlier appeared in the Revue Internationale de la Croix-Rouge of the same year. Ibid., p. 25. Ibid., p. 28. Ibid., p. 29.

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non-combattants, que l’on blesse de la façon la moins grave – afin que le blessé soit opérable, puisse guérir – et de la façon la moins douloureuse; que la captivité soit aussi supportable que possible.

Is all of this pure idealism? Pictet answers this unspoken question in the negative when he continues: Les chefs militaires peuvent comprendre ce langage – et l’ont souvent compris – puisqu’on ne leur demande pas de renoncer à accomplir leur devoir de soldats et de patriotes. Ils peuvent atteindre le même résultat en infligeant des souffrances moindres. Une fois rendu inoffensif par sa blessure ou sa capture, l’ennemi ne joue plus de rôle dans le déroulement des opérations et le sort final de la lutte. La prolongation de ses maux, par manque de soins ou par mauvais traitement, même du point de vue le plus réaliste, est inutile.

Some years after he had committed these ideas to paper, an unsought opportunity presented itself to present them in another forum. The occasion was the Conference of Government Experts on the Use of Certain Conventional Weapons, held at Lucerne, Switzerland, from 24 September to 18 October 1974. Pictet chaired the Conference, which had been convened by the International Committee of the Red Cross (and with the present author as its main rapporteur). Although Pictet did not on the whole consider himself enough of an expert on the subject-matter to take any regular part in the discussions on the often highly technical questions relating to the use of conventional weapons, he did make an active contribution to the debate on “legal criteria”, which was held at an early stage of the Conference. In this debate, an interesting discussion arose over the precise meaning of the phrase “unnecessary suffering” as used in Article 23(e) of the Hague Regulations. The Report notes “widespread agreement among the experts” that this notion: involved some sort of equation between, on the one hand, the degree of injury or suffering inflicted (the humanitarian aspect) and, on the other, the degree of necessity underlying the choice of a particular weapon (the military aspect). It was also widely agreed that the equation would often be a particularly difficult one, as neither side of the equation could easily be reduced to precise

33 34

35

Loc. cit. – Pictet reiterated these ideas some years later in his book Le Droit humanitaire et la Protection des Victimes de la Guerre (1973). The Report of the Conference was published by the ICRC in 1975; see also, F. Kalshoven, “The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 September-18 October 1974”, 6 NYIL (1975), pp. 77-102. Report, p. 9.

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What was to be understood in this context by military necessity? Opinion appeared to be divided on this score. There were, first, those experts according to whom: the element of military necessity consisted solely in the capacity of a weapon to put an enemy hors de combat, this in conformity with the preamble to the St. Petersburg Declaration of 1868…

The Report then introduces one expert who: elaborating this idea, felt that the subjective element it contained could be reduced, e.g. by a formulation which would require that, if two or more weapons would be available which would offer equal capacity to overcome (rather than “disable”) an adversary, the weapon which could be expected to inflict the least injury ought to be employed.

Needless to say, this solitary expert was Jean Pictet, who had grasped the opportunity to press his idea of minimizing human suffering in war as a legal requirement. But this time his views did not remain unchallenged. First, the very idea was opposed that military necessity as an element in the choice of weapons could be reduced to the sole aspect of their capacity to disable enemy combatants. Other requirements had to be taken into account, such as: the destruction or neutralization of enemy materiel, restriction of movement, interdiction of lines of communication, weakening of resources and, last but not least, enhancement of the security of friendly forces.

And even if one were to take into account nothing but the aspect of a weapon’s capacity to disable enemy combatants, some experts noted that: whereas the ideal solution might perhaps be that the soldier be equipped with a range of weapons from which he could select the one that would, in the concrete situation, put his enemy out of action with the least possible injury, this solution was impracticable and that, hence, even much graver injury than the minimum strictly required in a given situation could not always be avoided. 36 37 38 39

Loc. cit. Ibid. Ibid. Ibid.

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It was in the course of these latter remarks that some of the “some experts” jestingly compared the “ideal but impracticable” solution with the situation of the golf player, who indeed cannot pursue his game without a whole range of golf clubs, each of them specifically designed to meet a particular difficulty. They could also have cited the answer given in 1899 by Mr. Raffalovich to Sir John Ardagh when the latter had pleaded for the right to use dum-dum bullets against savages: to equip a soldier with two types of bullet, one against savages and the other against a civilized adversary, would complicate armaments. In 1899, the delegates had ultimately chosen for the bullet which was stated to inflict the least harm: would history repeat itself in this respect as well? Bullets were indeed on the agenda of the Conference of 1974, and so were scores of other anti-personnel weapons. As for bullets, the introduction of rifle ammunition with a substantially smaller calibre than the 7.62 mm rounds in common use so far, had led to the charge that the new small-calibre projectiles were apt to cause very grave wounds, resembling those caused by dum-dum bullets. The charge gave rise to hot debate among experts, a debate which continued until well after the Conference. For present purposes, it may suffice to note that the lawyers at the Conference, confronted with the conflicting views of the military and medical experts, hesitated to arrive at any conclusions on the question of whether the small-calibre projectiles should be deemed to cause unnecessary suffering. All the experts recognized the high military value of the new rifles; but what about the element of suffering: was it really significantly graver than the suffering caused by 7.62 mm rounds? And if so in some cases, was it true in all cases: did it depend on the calibre alone, or were other factors involved as well, such as rifle and bullet design? The discussion terminated on the note, accepted by all, that “further study and research were required to arrive at more definite conclusions.” The “further study and research” were indeed carried on in subsequent years. They did not in the end result in a prohibition on the use of the smaller rounds; quite on the contrary, small-calibre rifles are ever more widely accepted as the combatant’s basic equipment. Yet, “study and research” were certainly not in vain: as experiments appeared to show that design may be a more important factor than calibre, weapon producers were soon looking for a design which, while maintaining the characteristics required from a point of view of military effectiveness, is not open to the objection that it is “of a nature to cause unnecessary suffering.” Another type of weapon giving rise to heated debate in the 1974 Weapons Conference was what at the time often was popularly referred to as “fragmentation weapons”. The specific type of fragmentation weapon causing particular 40 41

Report, Chapter IV; the quoted words are on p. 47. On this question, see M. Lumsden, “The prohibition of inhumane weapons: new small arms ammunition”, being Chapter 15 of World Armaments and Disarmament, SIPRI Yearbook 1982.

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concern was the fairly recently introduced controlled-fragmentation anti-personnel munitions, whether delivered singly or in clusters. Two charges were levelled against these munitions: they acted indiscriminately, and they caused multiple wounds and, hence, unnecessary suffering. It was of course an undisputed fact that the fragments of an exploding “fragmentation weapon”, depending on its characteristics, spread over a more or less wide area of terrain. As a logical consequence, these fragments were apt to hit whomever or whatever was in that area, and the chances were, moreover, that more than one fragment would hit a single “target” (be it human being or object). Was all of this sufficient ground for a prohibition of the new munitions: were they, in effect, so very different from the earlier high-explosive artillery shells and aircraft bombs, the ones discussed in 1899, for example? Some experts were of this opinion; as one of them had it, use of the munitions at issue entailed “an extremely high degree of suffering, long and difficult treatment, and a high mortality rate, all of which constituted unnecessary suffering.” In this expert’s opinion, “the use of the weapons under consideration was already prohibited by virtue of the Declaration of St. Petersburg, Article 23(e) of the Hague Regulations on Land Warfare, and certain military regulations …” But he failed to convince all his colleagues. In the view of some other experts: even the newly developed weapons in this category did not cause more suffering, nor were more indiscriminate, than the weapons whose place they had taken or those that would eventually replace them. As for indiscriminateness, this would depend on the use to which the weapons were put rather than on their nature. As regards suffering, the evidence seemed to show that the degree of suffering inflicted by the modern cluster bombs or by fléchettes was often less than that resulting from the use of the predecessors of these weapons.

And again: In the opinion of some experts, the data presented and information supplied showed that, if the modern fragmentation weapons were prohibited and conventional ones were used instead, the results might prove to be hardly an improvement from a humanitarian aspect, as a much higher proportion of severe and life-threatening wounds was likely to occur.

Like the new rifles, also the new controlled-fragmentation munitions therefore failed to be prohibited from use as a class when six years later the matter finally came up for decision in the Conference which the United Nations had 42 43 44

Report, Chapter V; the quotation is from p. 61. Ibid. Ibid.

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convened for that purpose. It should be underscored, however, that the validity of the humanitarian principles involved was never questioned by anyone. And it should be added that in the end, one specific type of fragmentation weapon was struck by a prohibition: according to Protocol I annexed to the UN 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: It is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

This prohibition represents a clear case of application of the principle of unnecessary suffering. The fragments escaping detection would doubtless have the effect, in the terms of the St. Petersburg Declaration, of “uselessly aggravating the sufferings of disabled men”, this while the military utility of the weapons in question was estimated to be slight at best – that is, if the weapons existed at all: to some, they still were what Captain Schéine had described in 1899 as “une nouvelle sorte d’explosifs, dont l’invention paraît possible.” While the Protocol on Non-Detectable Fragments amounts to a very modest result indeed, some more significant results were scored with respect to two classes of weapon: mines and booby-traps, and incendiary weapons (Protocols II and III annexed to the UN Convention, respectively). One thing stands out with particular clarity from a reading of these Protocols: their main thrust is unmistakably towards protection of the civilian population. With respect to mines and boobytraps, this trend had already become apparent at the Conference of 1974, where the argument of unnecessary suffering was not even raised in the debate and all attention had been focussed on the concepts of indiscrimination and perfidy. It should be noted that the Mines Protocol actually provides some language which aims to protect combatants as well as civilians. This is notably the case with Article 6, relating to the use of certain booby-traps. While the prohibitions spelled out in this Article mostly reflect the ideas of indiscrimination and perfidy, paragraph 2 expressly prohibits “in all circumstances to use any booby-trap which is designed to cause superfluous injury or unnecessary suffering.”

45

46 47 48

UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 1979-1980. UN doc. A/CONF.95/15 provides the Final Report of the Conference to the General Assembly. For text of the Convention and annexed Protocols, see also A. Roberts and R. Guelff, Documents on the Laws of War (1982) pp. 467 et seq. Report, Chapter VI: Delayed-Action and Treacherous Weapons. While this text ostensibly does no more than repeating the rule laid down in Art. 35(2) of the 1977 Additional Protocol I, it implicitly condemns the use, sometimes made e.g. in the Vietnam War, of hidden pitfalls with bamboo spikes at the bottom.

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Incendiary weapons, finally, gave rise to what probably was the bitterest debate of all. It had been apparent already at the Conference of 1974 that with respect to this category of weapon the experts were sharply divided on all important points. Admittedly, burn wounds were apt to entail exceedingly grave suffering; but was it not the case that certain incendiary weapons were indispensable against particular military objectives such as tanks, and was it not possible for combatants in the open to avoid the effects, say, of napalm, either by wearing protective clothing or by escaping from the scene of the fire? As for the element of indiscrimination, was it not a matter of particular forms of use of incendiary weapons rather than of their use per se which threatened the civilian population; and were fires not started by entirely different causes as well? While it would seem possible for rational men to arrive at an agreed answer to most of these questions, the situation was hopelessly exacerbated by the fact that at the UN Conference, the participants in the debate were from the outset entrenched in diametrically opposed positions. One extreme was the ardent hope that a categorical ban on the use of all incendiary weapons could be achieved; and the other was the firm conviction that no specific limitations whatever on the use of incendiary weapons could reasonably be demanded. Small wonder, then, that emotions ran high in the debate. The outcome, as found in the Incendiary Weapons Protocol, is very close to the latter position: no protection for combatants is provided, and the only clear concession with respect to the protection of the civilian population is found in Article 2(2): It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attacks by air-delivered incendiary weapons.

In conclusion, the question may be asked what became of the principles of St. Petersburg, and in particular of Jean Pictet’s view of these principles. As to the first part of this question, it appears safe to conclude that, generally speaking, all the discussions in subsequent years have tended to reaffirm the validity of the principles enunciated in 1868. It is equally obvious that application of the principles to concrete weapons often proved excruciatingly difficult and only in the rarest of cases resulted in a categorical prohibition, or even any noticeable restriction, of the use of a specific (category of ) conventional weapon. This is to say that considerations of military efficacy of given weapons have continued to play an all-important role. In this respect, the conclusion drawn in 1899 by Captain Crozier still holds true:

49 50

For the debate in the Conference of 1974, see Report, Chapter III. The same conclusion is drawn by W. V. O’Brien, The Conduct of Just and Limited War (1981).

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Si l’on examine ces décisions, il semble que, lorsqu’on n’a pas imposé de restriction, c’est l’efficacité qu’on a voulu sauvegarder au risque même d’augmenter les souffrances, si cela était indispensable.

What about the second part of our question? It seems fairly evident that Jean Pictet’s statement, taken literally, was untenable. A combatant simply cannot be equipped with a wide array of weapons for all kinds of situations, as the golf player is with his bag of golf clubs. In certain situations, therefore, the individual combatant will not be able to avoid inflicting graver suffering than would have been strictly necessary to put his enemy hors de combat; in other situations, for that matter, the weapons at his disposal will be insufficient to achieve that legitimate purpose. But taken less literally, Pictet’s argument appears to carry full weight; that is, if it is understood as addressed to the authorities who decide on the armament of the armed forces and, even, those military commanders who actually have a choice of weapons at their disposal. Considerations of military efficacy will again tend to rank high in the deliberations of these authorities; at the same time, they will fail in their duty if they totally lose sight of the humanitarian requirement of minimization of human suffering.

Chapter 15 Conventional Weaponry: The Law from St. Petersburg to Lucerne and Beyond*

In bringing before you the subject of tonight’s lecture, I do so with the painful feeling that it is a very dry subject – indeed, one which may be instructive, but cannot be made amusing; I can only, therefore, express my pleasure and surprise that the uninviting nature of my title should not have prevented more from attending this evening.

This is a quotation from the published records of an earlier meeting, comparable to the present one. They are the opening phrases of a paper on “Explosive Bullets and Their Application to Military purposes”, read by a Major G.V. Fosbery, V.C. H.M. Bengal Staff Corps, in a meeting of the Royal United Services Institution, held in London, under the chairmanship of Rear-Admiral Sir Frederick W.E. Nicolson, in the evening of Monday, 20 January 1868. If nothing else, this proves that at least on one earlier occasion a group of professional people met in this country to discuss an aspect of the use of conventional weapons. The date of that previous occasion, January 1868, is significant. In November of that year an International Military Commission assembled at St. Petersburg “in order to examine into the expediency of forbidding the use of certain projectiles in times of war between civilised nations.” And that Commission “having by common agreement fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity”, drew up the text of a Declaration by which “the Contracting Parties engage[d] mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances.” This so-called St. Petersburg Declaration was signed on 11 December 1868 by the representatives of seventeen States, and thus became the first conventional undertaking to renounce the use in war of a specific category of weapon.

*

1

Paper given at a meeting of the Discussion Group of the Laws of Armed Conflict of the British Institute of International and Comparative Law, 16 March 1985, and published in Michael A. Meyer (ed.), Armed Conflict and the New Law (1989) pp. 251270. 12 Journal of the Royal United Services Institution (1879) pp. 15-27.

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Major Fosbery’s explosive bullets obviously fell within this category. It may therefore be of some interest to see how he dealt with the matter in January 1868; was he already then predicting a ban on their use? To be sure, he expressed some concern at “hear[ing] the use of rifle-shell in war condemned as cruel, cowardly, or useless.” For his part, however, he “trust[ed] that the rifle-shell may receive, at all events, thoughtful consideration, as a candidate for the office of peacemaker to begin with, and as having a tendency to shorten any war once commenced, where its use is properly persevered in.” More specifically, he attributed to the rifleshell which he had himself perfected and tested in actual war-time conditions in India, a number of beneficial effects: it would “explode gunpowder enclosed in stout cases, such as artillery limber-boxes at extreme range and when an ordinary bullet would in no ways affect it.” It was “a ready means of estimating distances … more especially amongst mountains.” And, last not least, it had a profound effect on enemy morale. But was it not true that the explosive bullet was a cruel weapon? In order to deal with this argument Major Fosbery introduced a character who took this position and who, he said: takes to himself credit, and honestly enough, I doubt not, for humanity, and a kind regard for the comfort of his fellow-creatures, even when arrayed in arms against him. Yet he will take a scientific pride in the acknowledged weapons and usages of war, and use them with a good conscience to the best effects.… On land he disembowels [his enemy] with rockets, buries in his path the selfacting fougass; tears his body with the angular fragments of segment-shell; plies him with grape and canister, old iron, and broken bottles; undermines him; fills up his wells, and destroys his habitations and supplies, and makes him to die of hunger, of thirst, and exposure, or linger, it may be, for weeks, from the fearful wounds of the bayonet, the sabre, or the Snider-Enfield bullet, the latter, by the bye, almost equalling in their effects on the body any produced by rifle-shell, as may be seen by the fragments into which such a bullet divides when fired into water. All this, moreover, with the best possible intentions and most serene good faith. But let me ask you, is this really humanity? Are any of the deaths to which the greater number of the killed in war are put, strictly speaking humane? or, if they are not, what is this humanity of which so much is made? Is it indeed a branch of that quality which leads us to clothe the naked and feed the hungry, only developed in another direction? or is it not rather a 2 3 4 5 6 7

p. 17. p. 27. p. 17. p. 21. pp. 2-27. p. 25.

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term of variable quantity, applied to homicidal cruelty, and so adjusted as to be always just one step behind the last military discovery of the day?

For Major Fosbery, these were obviously rhetorical questions. To his mind, not humanity lay at the root of this argument of cruelty; not “the desire to spare the infantry and cavalry soldier … one atom of suffering, not one pang in death (for the shell kills much more instantaneously and more mercifully than the bullet)”: rather, the desire was to spare him: that unpleasant feeling which attaches to any species of death which men have not been accustomed to look into the face – that dread of the unknown – which makes a child fear to enter a dark passage without a light – which keeps country people from a haunted lane – the bravest sailor from a harbour known to contain torpedoes – or makes gallant troops shaky on ground which is supposed to be mined. That feeling which is – say what you will – at least akin to the sentiment which more than all the bloodshed in the world has lost its battles, and which it should be the object of every improvement in war material to produce, whether by its known or by its supposed effects – I mean fear.

Thus, rifle-shell, far from deserving to be banned, ought to be accepted everywhere and so should further improvements in war material, so as to continue to inspire into the adversary that beneficial dread of meeting a death he had not been accustomed to look into the face. “No one” – Major Fosbery felt – “will face a rapid and well sustained infantry fire of shell, as all who have seen them much used, are agreed, at all events until accustomed to them; and this takes time. But if they will not face them, then life is saved rather than destroyed. In fact the old argument holds good for each fresh step in advance; the more terrible the recognised engines of destruction, the greater will be the prospect of maintaining peace; or should war break out the shorter of necessity will be its duration.” So much for the optimistic views of Major Fosbery; views which, needless to say, were not shared by all his contemporaries, witness the adoption in that same year of the Petersburg Declaration. Yet, it did not seem to me a waste of your time to deal at some length with Major Fosbery’s ideas: January 1868 may be a long time ago, but this is a far cry from saying that no one would be thinking today along similar lines. There is another interesting aspect to his lecture. It may have been noticed that he referred at one place to bullets being fired into water. This goes to show that even in his days, experiments with rifle ammunition were being carried out, and awareness existed that projectiles of different design could have different effects. It is simply not true, as has sometimes been suggested, that this aware8 9

p. 26. p. 27.

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ness arose only recently, as a consequence of the introduction of the modern rifle projectiles with a calibre below 7.62 mm. 1 The drafting of the 1981 Weapons Convention This brings us to present times. For, although many an interesting debate took place in the period following after the adoption of the St. Petersburg Declaration, and in particular in the course of the negotiations at the Hague Peace Conference of 1899 which preceded the adoption of the Declaration Concerning Expanding Bullets (the so-called dum-dum bullets), it is not my intention to pursue this historical line any further. Rather, attention will be focused on the proceedings which ultimately resulted in the adoption, on 10 October 1980, of the UN 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. To be sure, the records of those proceedings could easily be made to fill more than one evening. Therefore, to quote an often dramatically misused expression: I shall be brief, and concentrate on some highlights, especially as far as the earlier history is concerned. Another preliminary remark is that my focus will be more on Geneva than on New York: more, in other words, on the work of the ICRC than on that of the United Nations. 1.1 The Role of the ICRC The interest of the ICRC in the matter of weapons stemmed not so much from any particular desire to get itself involved in questions of weapons technology and armaments, as from its concern to see the civilian population protected from the dangers of indiscriminate warfare. Aerial bombardment and, since 1945, the “atomic bomb” were obvious objects of its concern; but as early as 1956, it mentioned “incendiary agents” along with chemical, bacteriological and radioactive ones as devices which either by their nature or in given circumstances could have uncontrollable effects. In 1967, in a Memorandum to all Governments on the protection of civilian populations against the dangers of indiscriminate warfare, it raised the question whether “such new weapons as napalm and high velocity rockets” should not be regarded as “weapons inflicting unnecessary suffering”. And in 1969, it invited a meeting of experts to give their opinion, inter alia, on 10

11

As for the negotiating history of the 1899 Declaration on dum-dum bullets, reference may be made to the article entitled “The Soldier and his Golf Clubs”, which the present author contributed to Etudes et essays sur le droit international humanitaire et sur les principes de la Croix-Rouge, published in honour of Jean Pictet (1984) pp. 369385. The text of the Convention may be found, inter alia, in Roberts & Guelff (eds.), Documents on the Law of War (1982) p. 467 et seq.

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the questions of napalm, “high speed barbed missiles” (i.e. fléchettes) and “fragmentation bombs”. Here, the influence of the information concerning the conduct of war in Vietnam becomes clearly discernible. It is of interest to note that the experts the ICRC had brought together were hopelessly divided on the question of whether the use of napalm was permissible or not and whether a prohibition on its use would be desirable or feasible (the report of the meeting is silent on the other two types of weapon). Equally interesting was the advice offered by a number of these experts, to the effect that the task of the Red Cross in this sphere was not so much to bring about the prohibition of specified weapons but, rather, constantly to remind all those concerned of the basic principles governing their use. This piece of advice actually was in conformity with feelings widespread in Red Cross circles at the time on the desirability (or, rather, undesirability) of Red Cross involvement in questions of weaponry. But the ICRC did not give in: one of the volumes of documentation it submitted to the Conference of Government Experts, convened for May-June 1971, raised the question whether weapons such as “fragmentation bombs”, “certain ultra rapid ‘darts’” (i.e. fléchettes), certain new types of rifle ammunition, “mines filled with glass splinters or rusted nails” and indeed the entire range of so called “anti-personnel” weapons should not be made the subject of a critical examination. Significantly, the document containing these suggestions was the one devoted to guerrilla warfare – the Vietnam war, in other words. In another document, dealing with “Rules relative to behaviour of combatants”, the ICRC merely suggested the reaffirmation of the basic principle, embodied already in Article 23(2) of the Hague Regulations of 1899/1907, prohibiting the employment of “arms, projectiles or material calculated to cause unnecessary suffering”, and it did not make any proposals for more specific prohibitions or restrictions on use of particular weapons. Some such proposals were submitted by participants at the Conference of Government Experts, both in the course of its first (1971) session and in the second session, held in 1972. With respect to these proposals, it may suffice to note that while in 1971 their main thrust had been the protection of the civilian population, in 1972 a wider goal was sought as far as incendiary weapons were concerned: while the 1971 proposal had been for a prohibition on “napalm bombs and other incendiary weapons … for use in circumstances where they may affect the civilian population”, the restrictive closing phrase did no longer figure in the proposal for 1972. This broadening of its scope at the same time reduced the number of its proponents: while the Dutch experts had supported the earlier version, they withdrew their support in 1972. Thus, it became even clearer than 12

Much of what follows is based on this author’s “The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 September - 18 October 1974”, in 6 NYIL (1975) pp. 77-102.

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before that the experts, and the governments behind them, were sharply divided over the issue of restrictions on the use of incendiary weapons. By this time, the ICRC had completely abandoned any idea of making its own suggestions regarding prohibitions or restrictions on the use of specified conventional weapons. For one thing, had it followed its heart, it would simply have proposed an outright ban on the use of an assortment of weapons, with incendiary weapons among them, that it had come to regard as unnecessarily cruel. But it realised only too well that this way of the heart was closed. This being so, it was reluctant to get itself entangled in discussions about the relative merits and demerits of this, that or the other weapon, with the political overtones such discussions would inevitably have. After all, the war in Vietnam was not over yet, and charges of unlawful conduct of the war continued to fill the air. At the same time, the ICRC was loath to see the subject go to the United Nations for fear that it would there become totally politicised. The question was therefore what course to steer. 1.2 The role of Government Experts In resolving this problem, it was helped by outside factors. At the first, 1971, session of the Conference of Government Experts, the suggestion had already been made that the Conference should take up the study of all weapons which were not at the time the subject of discussions in other forums, such as the United Nations or the then Conference of the Committee on Disarmament. Neither this nor the 1972 session did in fact embark on such a wide-ranging debate. But a number of non-aligned countries, with Sweden very prominent among them, continued to repeat their demands for such an expert study. They voiced these demands both within and outside the United Nations. One memorable occasion was the XXIInd International Conference of the Red Cross, held at Teheran in November 1973. Virtually simultaneously with the UN General Assembly, that Conference adopted a resolution (No. XIV) requesting the ICRC to convene a conference of government experts to study the question of conventional weapons that might be deemed to cause unnecessary suffering or have indiscriminate effects. The resolution was the outcome of negotiations between two key figures representing opposing tendencies: Mr. George Aldrich of the U.S. Department of State and Dr. Hans Blix of the Swedish Ministry for Foreign Affairs, with the present author acting as mediator. The adoption of this resolution, with the support even of the United States which up to that moment had shown itself unwilling to take part in such an exercise, cleared the way for the convening of the meeting of government experts which the non-aligned had so insistently demanded. After further careful and at times difficult preparations, the ICRC duly convened the Conference of Government Experts on the Use of Certain Conventional Weapons at Lucerne for 24 September - 18 October, 1974. It will be noticed that the qualifying phrase

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of Resolution XIV, that the weapons to be studied “might be deemed to cause unnecessary suffering or have indiscriminate effects”, did not figure in the title of the Conference. For one thing, this reflected the unwillingness of some governments to concede beforehand that part of their weaponry might perhaps be open to some criticism from a legal point of view. For another, the change was more than cosmetic in that for all practical purposes it cleared the way for a study of the entire range of conventional weapons. 2 The Lucerne Conference 1974 The Conference was favoured by a broad attendance: the list of participants included experts from some 50 countries, from several national liberation movements, from the United Nations and the World Health Organisation, and from some non-governmental organisations including SIPRI. Among the experts were officers with wartime experience, ballistics and technological experts, military and civilian surgeons and other medical doctors, lawyers of all kinds, and diplomats, some of whom had not had to travel any further than from Geneva (and whose expertise in the field of conventional weaponry was correspondingly limited). The Conference was chaired by Dr. Jean Pictet of the ICRC, and I had the privilege of serving as its main rapporteur. What I have to say about the Conference is based on its report as well as on information I collected in the latter capacity. The Conference had an ambitious agenda, with as its first item a discussion of legal criteria. This was followed by a study of incendiary weapons, small-calibre projectiles, blast and fragmentation weapons, delayed action and treacherous weapons, and future weapons. A debate on the follow-up to be given to the work of the Conference, and of course a discussion of the report would conclude the proceedings. Notwithstanding this heavy workload, and despite its heterogeneous composition, the Conference did not break up into working groups; the entire recorded debate took place in plenary sessions. The only exception was an informal working group on the definition and classification of incendiary weapons. Its informal character did not prevent this working group from reporting back to the Conference on the outcome of its deliberations and its report was annexed to the Conference report. 13

ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24.9-18.10.1974) – Report (1975). An abbreviated version of an oral report on the Conference, read out by the present author at the outset of the second session of the Ad Hoc Commission, was published in the summary records of that Commission’s 8th meeting of 5 Feb. 1975 (CDDH/IV/SR.8, paras. 8-33), Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977), Vol. XVI, pp. 68-73.

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The opening debate on legal criteria profited greatly by a paper on “legal criteria for the prohibition or restriction of use of categories of conventional weapons” by Colonel (as he then was) Sir David Hughes-Morgan. It may be of interest to note some of the observations he made in that paper. By way of introduction, he drew a distinction between the older type of ban on “the use of a specific weapon or projectile, necessarily involving a description of the weapon or projectile concerned”, and prohibitions “drafted with reference to the effects resulting from use” of weapons. With respect to the former type of specific ban he wrote, repeating a warning voiced earlier by Richard Baxter, that the more specific the prohibition, the greater the possibility of lawful circumvention of the rule. A detailed prohibition on a specific weapon which is militarily effective may well challenge technologists to devise a weapon having the same effect but whose characteristics are not caught by the prohibition.

A prohibition drafted with reference to effects, on the other hand, “is not only valid as a prohibition in itself, but is likely to contain the criteria by which future prohibitions on specific weapons ought to be judged.” The first such prohibition to come to mind is, of course, that on weapons calculated to cause unnecessary suffering. How valuable a standard was this in practice? Sir David had the following to say about this: There are two main difficulties in applying this rule to specific weapons. First, it may be necessary – particularly at short range – to inflict a severe wound to ensure that a man is placed “hors de combat”, for a comparatively minor injury may enable him to continue fighting. Secondly, the requirements of the military task to be performed have to be taken into account. For example, some of the powerful weapons designed for use against armoured fighting vehicles are likely to inflict severe injuries on the crew. But such weapons may be necessary to penetrate the armoured protection on such vehicles and it is a legitimate act of war to put fighting vehicles and their crew out of action. Similarly, a particular level of penetration is required for small arms to defeat body armour or steel helmets, and a weapon which did not do this would not be militarily effective: its effect on an unprotected man, however, would be severe. Ideally, a military commander should have available to him a range of weapons such as to be able to meet exactly the degree of force needed in any particular situation. For obvious reasons, this is impossible:

14 15

As with other documents distributed at the Conference, Sir David’s paper was merely mentioned in a list included as Annex 4 to the Report. Richard R. Baxter, “Criteria for the Prohibition of Weapons in International Law”, in Horst Ehmke et al. (eds.), Festschrift für Ulrich Scheuner (1973) p. 51.

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a soldier can carry only one rifle, for example, and the varieties of artillery projectiles are necessarily limited.

His conclusion was that a weapon could not “… be declared unlawful merely because it does on occasion cause severe suffering or injury.” As the correct criterion he saw one of proportionality, and “… in this regard a weapon which in practice is found inevitably to cause injury or suffering disproportionate to its military effectiveness would be held to contravene the prohibition.” Finally turning to “future generic prohibitions”, he considered it “desirable to define a standard of comparison by which it can be determined whether injury is caused unnecessarily.” At the same time, he doubted the possibility “to better that which is at present used, namely the degree of injury caused considered in proportion to the military effectiveness of the weapon in question.” Yet this standard was certainly not useless: … a prohibition so framed is of value in forbidding the use of any weapon which, while inflicting severe wounds, has no corresponding military significance. The difficult cases, in which the results of the proportionality equation are in dispute, can only be resolved by the agreement of states to prohibit the use of specific weapons. In so doing, they would necessarily take into account the criteria contained in the generic prohibition.

I have included these lengthy quotations from an unpublished paper because they provide an excellent introduction to the difficulties which the Conference experienced, both in its discussion of legal criteria and in the debate on specific weapons or categories of weapon. To demonstrate these problems I can do no better than quote from a statement by Dr. Hans Blix, still in the same debate on legal criteria. Referring in particular to Sir David’s comments on inevitable disproportion as a ground for prohibition of a weapon, he felt that “inevitable” was too rigid a term; and he was: also troubled by the use of the word “disproportionate” because it seems to imply that if a weapon is very effective from a military point of view, then the degree of suffering that would be acceptable would be proportionally high. However, the military effect that is legitimate is only that of putting a man out of combat, to disable him, and there should be put no premium on weapons which may go further than that. This is not to deny, of course, that the element of military utility will have to be weighed against the humanitarian aspects of the use of a weapon, or rather, the inhumane aspects of use of a weapon. That balancing evidently is a central task in determining whether the rule is applicable in a particular case.

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In other words, while he agreed with Sir David that proportionality was the applicable standard here, he shrunk back from accepting the consequences of its application in all cases. 2.1

Unnecessary Suffering

In discussing unnecessary suffering, a first question to arise was what had to be understood by the concept of suffering. On this question, there was an appreciable degree of consensus; “suffering” was generally considered to comprise such factors as mortality rate, the painfulness or severity of wounds, and the incidence of permanent damage or disfigurement. Opinion was more divided, however, when it came to an identification of the elements to be taken into account in assessing what suffering should be considered unnecessary. There were those experts who, like Dr. Blix, while conceding that an element of military necessity was involved here, maintained that this consisted solely in the capacity of a weapon to put an enemy hors de combat. Even then, the question would remain how much injury was required to disable an enemy soldier. According to the opposite view, military necessity as an element in the choice of weapons included such other factors as (to quote Mr. Ronald Bettauer from the United States): … the destruction or neutralization of military materie1, restriction of movement, interdiction of lines of communication and effects on morale, command and control, stamina and cohesion of opposing forces, effectiveness against particular targets, availability of alternative weapons, cost, and the security of the troops involved.

The debate on unnecessary suffering yields one further interesting detail. This arose in connection with the view, defended by Dr. Blix and others, that the sole legitimate function of a weapon was to put an enemy hors de combat. Dr. Pictet grasped this opportunity to confront the meeting with an idea of a somewhat philosophical order, that “if two or more weapons would be available which would offer equal capacity to overcome … an adversary, the weapon which could expected to inflict the least injury ought to be employed.” The idea had already been forestalled by Sir David in his paper, where he also had pointed out that it could not work in practice. The same objection was repeated in the debate. An attempt to do Dr. Pictet’s idea maximum justice while at the same time putting it in its proper perspective was undertaken by Mr. Frederick Blakeney, Head of the Australian delegation. While suggesting a formulation which closely followed the idea expressed by Dr. Pictet, he accompanied this with the comment that any such formulation:

16

Report of the Conference, p. 9: para. 25.

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obviously needs to be looked at in respect of the enemy as an individual, and as a group. There already seems a wide measure of agreement that as few as possible should be killed, no more than necessary should be wounded and those lightly rather than gravely. The total so disabled or overcome should not exceed the number necessary to ensure victory in given exchanges and the war overall.

I have dwelt at some length on this discussion about unnecessary suffering because it was of crucial importance to further discussions on specific categories of weapon. It also provides a clear example of the type of inconclusive debate which was characteristic of the Lucerne Conference. The debate on legal criteria did not yield any agreed formulations. It also was disappointing to those few experts who like my compatriot Major Gonsalves of the Dutch army legal services, had set their hopes even higher and aimed at identifying legal parameters of such accuracy that they could be applied almost automatically to any given weapon. For those who had entered the debate with more modest expectations, it could at least be said to have provided, in Dr. Blix’s words, a measure of “knowledge of each other’s philosophy for prohibitions or restrictions.” 2.2

Indiscriminateness

As concerns indiscriminateness, the discussion turned around the question whether the category of conventional weapons includes types of weapon which are inherently indiscriminate. The difference of opinion was predictable: while some experts thought that such weapons did indeed exist, other experts denied this. According to the latter experts, any conventional weapon could be used indiscriminately or with discrimination, so that the method of use rather than the weapon’s properties would be decisive in determining whether the requirement of discrimination had in effect been met. And a similar difference of opinion became apparent with respect to perfidy, with some experts advocating that this be given a separate place among the legal criteria and others denying that it would deserve such a separate place. 2.3 Dictates of the Public Conscience The last criterion brought up for discussion under the heading of “legal criteria” was the dictates of the public conscience. These are mentioned as one factor besides others in the well-known Martens clause in the preamble to the Hague Convention of 1899 respecting the Laws and Customs of War on Land. It is of course very much a debatable point what legal effect, if any, should be attributable 17

For a further discussion of the question, the reader may be referred to the paper contributed by the present author to the book in honour of Jean Pictet, supra, note 10.

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to utterances of public opinion. At Lucerne, there was a general readiness to acknowledge its importance. To some, it even constituted an independent legal criterion against which the legality of use of specified weapons could be tested. In the eyes of others, it represented a political rather than a legal factor: governments would be well advised to take the “dictates of the public conscience” into account in making up their mind about the deployment and use of modern conventional weapons. And indeed, in any not entirely closed society this certainly seems to be a sound piece of advice. 2.4 Incendiary Weapons The “dictates of the public conscience” have obviously played an important role in the discussions of recent years about the admissibility of use of incendiary weapons. At Lucerne, these were the first category of weapons to come up for discussion, and although it is not my intention to discuss each and every category of weapon, some remarks about incendiaries may nonetheless be useful. One key issue in the debate concerned the definition and classification of “incendiary weapons”. After all, there are many ways of starting a fire, and at times it may erupt as an involuntary side effect of the use of weapons. This question was taken up by the informal working group which I mentioned earlier, and the group was able to reach a consensus at least on the definition of “incendiary munitions”. It read as follows: For the purposes of this Conference, an incendiary munition has been considered to be any munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame and/or heat produced by a chemical reaction of a substance delivered on the target.

The group also recognised that there exist munitions which may have secondary or incidental incendiary effects but which do not fall within the quoted definition, and they gave examples: illuminants, tracers, smoke, signalling systems and fuel-air explosives. This was as far as the consensus went: the group had not been able to reach agreement on the classification of other munitions such as certain armour-piercing and anti-aircraft projectiles, which combine incendiary with other distinctive effects. In the meantime, the discussion in plenary had yielded a wealth of information about the use of incendiary weapons, their military characteristics and medical effects, and possible substitutes. In the final evaluation, the conflicting nature of much of this information led to radically opposite conclusions with respect to the admissibility of use of incendiary weapons. This division of opinion became apparent as much in the assessment of these weapons against the criteria of unnecessary suffering and indiscriminateness as in the views on their prohibition.

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Thus, according to one group of experts, incendiary weapons caused exceptionally grave wounds, were of limited military value and could easily be substituted by other weapons, and they could therefore be said to cause unnecessary suffering. These experts also regarded incendiary weapons as inherently indiscriminate. In contrast, while other experts did admit that burn wounds are probably the worst possible type of wound, these experts were not convinced that the use of incendiary weapons would in all cases result in an exceptionally high incidence of casualties, let alone of gravely wounded. These experts felt moreover that the military value of these weapons was far from negligible, and they feared that their substitution by other weapons might even result in an increased number of casualties and of severely wounded in particular. And as far as indiscriminateness was concerned, they once again expressed the view that this depended entirely on the method of use. One method in particular, however, the massive use of incendiary weapons against civilian population centres, found virtually unanimous condemnation. Views on the final evaluation of incendiary weapons were equally divided, with one group of experts advocating their outright prohibition and the other group holding that insufficient grounds for such a sweeping conclusion had been shown. One interesting detail in this debate concerned the possibility of attacks on military objectives located within population centres: while an expert from the first group pointed to the risk that incendiary weapons, when used in such attacks, might start fires spreading over a wide area outside the target, an expert from the other group drew attention to the responsibility of the authorities who should ensure that no vital military objectives be found within civilian population centres. The discussions which followed on other categories of weapon were of a similar nature. There might be differences in technical complication or in the level of emotion involved in the debate, but in each and every instance, once it came to evaluating the category of weapon concerned, the house was irreconcilably divided. This caused quite some frustration, especially among those experts who had come to Lucerne with the firm conviction that a number of conventional weapons deserved to be banned from use, and that their view would be shared by all – once everyone got to know the true facts. This sense of frustration was voiced, for instance, by Dr. Blix in his closing statement on small-calibre projectiles. The Swedish experts, he said, had found the discussion “most useful”; but still: We would have been even more appreciative of the debate if more of the statements had aimed at a constructive analysis rather than one that has very preponderantly been directed at throwing doubt at whatever data that have been presented and reaching the somewhat sterile conclusion that nothing is known about anything.

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When one looks back at the Conference of Lucerne, a first conclusion is that it constituted an important event in that so many countries, and most of the major ones among them, were represented by qualified experts. The experts, moreover, did not confine themselves to being physically present: they offered a wealth of information about a wide range of conventional weapons. In doing so, they did throw doubt on virtually every assertion which one group of experts and the governments which they represented, had previously regarded as incontrovertible truths, whether with regard to legal criteria or where the properties of weapons and their substitutes were concerned. It is perhaps no exaggeration to say that the greatest value of the Conference lay precisely in this element of “throwing doubt” on the earlier beliefs: anyone who thus far might have entertained the hope that fast results were within reach, had by the end of 1974 probably given up those high expectations. One further conclusion I drew at the time from the totality of the debate, and which was significantly strengthened in a private conversation with the Australian representative, Mr. Blakeney, was that few results, if any, could be expected in the sphere of protection of combatants, and that efforts had best be concentrated on achieving an improved protection of the civilian population. 3

Subsequent Negotiations

The rest of the story is soon told. The experts met in a second session at Lugano, from 28 January to 26 February 1976. The report on that session is about twice as thick as that of the session at Lucerne, in inverse ratio to the importance of the affair. This time, there were besides the Plenary Meetings, a General Working Group and several Working Sub-Groups, both official and informal ones. A number of documents were produced and annexed to the report. But with one exception, it would be an exaggeration to say that anything critically important had been contributed. The one exception concerns the proposal, introduced there for the first time by the experts of Mexico and Switzerland, to forbid the use of “weapons producing fragments which in the human body escape detection by the usual medical methods.” This proposal on so called non-detectable fragments immediately received widespread support. The debate on conventional weapons was at the same time being carried on at the Diplomatic Conference of Geneva, 1974-1977, where the Ad Hoc Commission met at regular intervals, more often than not merely to listen to lengthy statements by Dr. Blix and his colleagues, to which no response came. When the Diplomatic Conference terminated its work, it could do no more than transmit the whole business to the United Nations. It did this by Resolution 18 19

ICRC, Conference Government Experts on the Use of Certain Conventional Weapons (Second Session Lugano, 28.1-26.2.1 987), Report (1976). Report of the Conference, p. 188: COLU/212.

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22(1V), which recommended the convening of a Conference of Governments no later than 1979, with a view to reaching: (a)

(b)

agreement on prohibitions or restrictions on the use of specific conventional weapons which may be deemed to be excessively injurious or have indiscriminate effects, taking into account humanitarian and military considerations; and agreement on a mechanism for the review of any such agreements and for the consideration of proposals for further such agreements.

It will be noticed that the qualifying elements of excessive injury and indiscriminateness had crept in again, this time – as was to become apparent later – to stay. Another important element was of course the reference to a review mechanism, an aspect that had been much debated at the Diplomatic Conference and to which great importance was attached, especially by those Governments who had their hopes for early results seen frustrated. 4 The UN Convention on Conventional Weapons After two preparatory sessions, the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects met at Geneva in two yearly sessions, in 1979 and 1980. The Conference produced a Convention with three annexed Protocols. To start with the latter, they deal with “non-detectable fragments” (Protocol I), “prohibitions or restrictions on the use of mines, booby traps and other devices” (Protocol II) and “prohibitions or restrictions on the use of incendiary weapons” (Protocol III). Few of their provisions provide any protection to combatants; this is notably the case with the one and only article of Protocol I and with some of the provisions in Article 6 of Protocol II on the use of booby traps. For the rest, Mr. Blakeney’s prediction came true that the focus would be on the fate of the civilian population. In that respect, there is of course a considerable amount of overlap between the Weapons Protocols and the parts on protection of the civilian population in the Geneva Protocols of 1977. But this is not the whole story: both the Mines Protocol and the Incendiary Weapons Protocol contain specific provisions which provide additional protection. One of these, the rule laid down in Article 2(2) of the Protocol on Incendiary Weapons, held the Conference in suspense till the very last minute. The paragraph provides that: 20 21

Official Records, Vol. I, p. 215. Text adopted, 10 Oct. 1980, opened for signature, 10 April 1981; in force, 2 Dec. 1983; 19 ILM 1523, Cmnd. 8370.

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As this was virtually the only significant addition to the protection of the civilian population afforded by the Protocols of 1977, it was crucial to a number of Governments that the provision would be adopted. At the same time, the United States in particular found it extremely difficult to accept this restriction on the freedom of action of their armed forces. As long as the US delegation could not express its approval of the proposed text, the Soviet Union kept silent too. It was therefore a moment of utter relief when toward the very end of the second session the news arrived that the United States had finally decided to accept the text. Already on the following day, the Soviet delegation could inform the Conference that Moscow had given the green light too – an unusually quick reaction on their part. As in the meantime all the problems attending the setting up of a review mechanism had also been resolved, the Conference could ultimately come to its happy end. The review mechanism, as contained in Article 8 of the Convention, is a model of complexity, and this necessarily so because it attempts to meet a set of virtually irreconcilable goals. There was, first, the goal of those Governments who had wanted more significant results, to ensure that the good work could continue in future. An additional goal of these Governments was to bring even their reluctant partners along in any such future exercise. And there was the goal of these reluctant Governments, to avoid any obligations to accept future meetings, let alone the outcome of such meetings, against their will. All these interests have to some extent found a place in Article 8. Put differently, not too much should be expected of it; or, in the alternative, need be feared of it. This brings me to my final conclusion. The results obtained at Geneva in 1980, while perhaps not impressive, are certainly not negligible either. At all events, they represent the very limit of what could be reached at the time, and in all probability they will remain so for a considerable amount of time to come.

Chapter 16 The Conventional Weapons Convention: Functions of Underlying Legal Principles*

1

Introduction

Neither the 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, adopted in Geneva on 10 October 1980, nor the Protocols annexed to it specify in their operative parts the principles on which the prohibitions and restrictions rest. Such principles may be found, however, in the preamble to the Convention. Four of the twelve preambular paragraphs are relevant here. They list: the “general principle of the protection of the civilian population against the effects of hostilities”; the principle “that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited”; the ban on “the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”; and the fact that it is prohibited “to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” The fifth paragraph reiterates the wellknown Martens clause, in the formulation accepted for Article 1(2) of Additional Protocol I of 1977. The remaining seven paragraphs state such evident truths as the duty not to make war and the aspiration of all peoples to live in peace. Taken as a whole, the preamble may strike the reader as a rather more eloquent piece of writing than the operative parts of the Convention and Protocols taken together.

*

1

Abbreviated version of a paper published in 30 IRRC (1990) pp. 510-520. Section 2, “Historical development of the principles”, is left out since its subject-matter is covered in full detail in previous papers in this collection. The operation has affected the numbering of the footnotes to sections 3 and 4, and has led to some slight adjustments in the text. Although preambular paragraphs are generally regarded as non-binding, France upon signature took the precaution of specifying that the last-quoted part of the preamble reproduces Art. 35(3) of the 1977 Protocol I and “applies only to States parties to that Protocol.” Schindler & Toman, The Laws of Armed Conflicts, 3rd ed. (1988) p. 194.

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This is not uncommon: the same could already be said of one of the oldest instruments in the field: viz., the Declaration of St. Petersburg, 1868. While it has only one operative paragraph, on the mutual agreement of the parties to renounce the employment of one type of small-arms projectile, it is adorned with a lengthy and highly idealistic preamble that would not have been out of place in a treaty on the general reduction of armaments. Indeed, the ideas expressed in the preamble of 1868 are very similar to some of the principles embodied in the preamble to the Convention of 1980. This suggests two questions of interest. One concerns the history of principles relating to the employment of weapons of war, and the other the function of such principles. We shall briefly discuss [the second] of these questions. In doing so we shall come across some other matters of general interest that, although not properly belonging under the heading of “principles”, are of sufficient import to deserve some attention in the concluding section of this article. 2 3

[Historical Development of the Principles – left out]

Functions of Legal Principles Relating to Use of Weapons

This section discusses some conceivable functions of these principles in debating or determining the permissibility or otherwise of the use of given weapons. Attention shall be given to the principles’ potential as rhetorical means and as yardsticks or guidelines. Use as rhetoric may well be the most common. Third parties, be they States, international organizations or (groups of ) individuals, may invoke the principles to expose a belligerent for its use of given weapons. That was what happened at the time of the Viet Nam war, with the United States being accused of employing weapons that were said to cause unnecessary suffering or to have indiscriminate effects. A more recent example is the protests against the use of certain weapons by the Soviet Union in Afghanistan. As the examples go to show, the persuasive force of such third-party protests depends on such factors as the authority and good faith of the protesting party, the blatancy of the violation and, last but not least, the vulnerability of the belligerent to the pressures of public opinion. Obviously, the rhetorical invocation of one or other principle may at best have some effect as a means of moral persuasion. It is an observable fact, however, that belligerents often find little difficulty in countering such attacks by equally rhetorical means, such as, by explaining either the facts or the principles, or both, in a manner that appears to justify the use of the weapon. In either case, no final determination of the lawfulness or otherwise of the use of the weapon in question comes about.

2

Schindler & Toman, op. cit., p. 101.

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This brings us to the application of the principles as yardsticks or guidelines. If invoked as yardsticks, they should be able to support a fairly straightforward determination of the legal issue. As guidelines, they need provide little more that a set of basic, perhaps mutually conflicting, considerations that must be weighed in arriving at such a decision. Here the level of abstraction of the principle concerned is a first important factor. This sets the “no unlimited right” rule apart from the other principles. The rule may be said to underlie the obligation created in Article 36 of Additional Protocol I of 1977 for a State to determine whether the employment of a new weapon would bring it into conflict with the law. For the rest, however, the statement that belligerents have no absolute power to introduce weapons of their choice is abstract and devoid of specific content to such a degree that it could find direct application as a rule of law only in the unlikely event of a belligerent expressly claiming such unlimited power. Apart from this entirely theoretical possibility, it can and does serve as a sort of introduction, a reminder that rules of law apply even in this dark corner of human behaviour. It is submitted that the remaining principles are not particularly suited to serve as yardsticks as defined above. In other words, I do not share the optimism of those delegates who believed that “unnecessary suffering” and “indiscriminate effects” provided standards that could simply “be applied to existing and possible future weapons.” For any such straightforward application, their component parts on the one hand and the characteristics of modern weaponry on the other provide far too many complications and difficulties of interpretation. Witness the debate in Lucerne about the notions of suffering and injury and the multiple factors in evaluating the necessity of accepting such suffering or injury in the light of military considerations. It follows that in determining the lawfulness or otherwise of existing or new weapons, the main function of the principles may lie in their capacity to be used as guidelines. As such, they are first of all at the disposal of individual States. As mentioned above, Article 36 of Protocol I requires a State considering the introduction of a new weapon “to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law” applicable to the State. It need hardly be emphasized that this individual assessment of the characteristics and probable effects of a weapon in the light of applicable broad principles leaves much room for subjective interpretation. 3

4

Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977, Official Records, Vol. XVI, pp. 457-459: CDDH/47/Rev. 1, Report of the Ad Hoc Committee on Conventional Weapons, paras. 21-35. See Major General R. Scott, “Unnecessary Suffering? A Medical View”, in M. A. Meyer (ed.), Armed Conflict and the New Law (1989) pp. 271-279.

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Although no obligation exists to this effect, a similar determination may also be made by States collectively, leading to a mutual agreement not to use, develop or introduce a given weapon, or to change its design or restrict its use. In practical terms, this probably is the materially most important application of the principles under consideration. This is what was done in 1899 when the so-called dumdum bullet was banned, and was done again in 1980 when the UN Conference adopted the Convention with annexed Protocols that prohibit or restrict the use of some classes of conventional weapon. A last item to be considered under this heading concerns the possible application of the principles in a judicial or quasi-judicial procedure against a belligerent party. This brings us back, though in a different manner, to the issue of third-party invocation. With the belligerent State in the role of accused party one would have to think in terms of State responsibility. The established rule that a State at war is responsible for all acts committed by persons forming part of its armed forces doubtless extends to the choice of weapons and the way these are used. When doubts arise regarding the lawfulness of such use, one could envisage a fact-finding and possibly conciliatory role for a respected international institution such as the Office of the UN Secretary-General, or even (in a slightly better world) for the Security Council. Obviously, the authoritative force of such an intervention would depend entirely on the authority of the body performing this quasi-judicial function and on the care it takes in arriving at its conclusions. Indeed, even the International Court of Justice, whether acting in an advisory capacity or in a contentious procedure, might be asked to determine whether the use of a particular weapon is in conformity with the applicable principles. Yet surely one must be something of an optimist to consider this latter possibility as anything but theoretical. It should be emphasized that the character of the principles as broad and illdefined guidelines need not stand in the way of such authoritative determination by a body of high standing. It would be for the body concerned to extract and elucidate to the best of its ability the criteria involved, much as a national judge is required to do in applying a broadly phrased piece of municipal legislation. On the other hand, a perusal of [the reports on the series of recent conferences on use of weapons] may convince the reader that the great number of uncertainties in the various equations involved might make the task of such a body of wise men unusually arduous.

5 6

The rule was first codified in Art. 3 of the 1907 Hague Convention on land warfare and reaffirmed with the adoption of Art. 91 of Protocol I of 1977. In this connection reference may also be made to the International Fact-Finding Commission provided by Art. 90 of Protocol I of 1977.

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Concluding Remarks

In his paper for the Lucerne Conference Sir David Hughes-Morgan suggested that the most radical development in the field of generic prohibitions on weapons would be “to lay down specific parameters for weapon characteristics and to prohibit any weapon not falling within them.” However, he continued: It is not yet clear whether sufficient technical knowledge of weapon effects or characteristics exists in order to determine meaningful parameters; and it is difficult to see how such a proposal could be implemented without a system of inspection and control. Any state which disregarded the prohibitions could acquire an overwhelming military advantage. To date, no general agreement on such a system has been reached and it seems unlikely to be attained in the near future.

Sixteen years after Sir David wrote his paper and ten years after the adoption of the Convention with its annexed Protocols, these words have lost none of their relevance. Not only has no further progress been made in the development of meaningful principles governing the use of weapons of war, but even for the existing principles and specific rules no effective “system of inspection and control” has been set up. The one and only provision in the Convention that has a bearing on implementation lays down an obligation of dissemination (Art. 6); important no doubt, but it cannot mask the silence on other matters, such as orders and instructions to ensure observance, repression of breaches, fact-finding or (with one exception) reprisals. There is, on the other hand, a long and complicated provision on “review and amendments” (Art. 8). May this serve one day to remedy such defects and make the “umbrella” Convention with its underlying principles an even more comprehensive and effective protection against the vagaries of the international climate.

7

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Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 Sept. - 18 Oct. 1974; report published by the ICRC in 1975. Sir David’s paper on legal criteria is unpublished. The exception is in Art. 3(2) of the Mines Protocol.

Chapter 17 Prohibitions or Restrictions on the Use of Methods and Means of Warfare in the Gulf War, 1980 - 1988*

1

Introduction

Prolonged international armed conflict invariably brings into play a wide array of methods and means by which the belligerent parties seek to obtain their goals. The Gulf War between Iran and Iraq, 1980-1988, has been no exception to this rule. Methods and means used have ranged from non-violent (though often vitriolic) rhetoric and propaganda, through all shapes of economic pressure, to attacks with a great variety of more or less sophisticated weapons of war, including chemical weapons, and directed both against military and civilian targets. While a complete history of the Gulf War might be expected to cover all these aspects, the purpose of this chapter is more modest. Leaving matters of grand strategy and rules relating to the use of force in inter-State relations (jus ad bellum) on one side, it concentrates on those rules of the law of war (jus in bello) embodying prohibitions or restrictions on the employment of violent methods or means of warfare. As the conduct of war at sea is dealt with elsewhere [in Part III of The Gulf War of 1980-1988]), the scope of this chapter is moreover limited to war on land, including attacks from the air on objects on land. Paul Tavernier and Eric David have earlier furnished useful overviews of relevant facts and legal aspects. We have made grateful use of the data provided in their articles as well as of other public and readily available information. The first task in hand will be to determine the rules applicable in the Gulf War. The actual conduct of the belligerent parties will then be considered in the light of these rules. Finally, we shall take a brief look at the repercussions in the outside world of some of the belligerents’ modes of waging the war.

* 1 2

Published earlier as Chapter 3 of L.F. Dekker & H.H.G. Post, The Gulf War of 19801988 (1992) pp. 97-114. P. Tavernier, “La guerre du Golfe: Quelques aspects de l’application du droit des conflits armés et du droit humanitaire”, 30 AFDI (1984), pp. 43 et seq. E. David, “La guerre du Golfe et le droit international”, 23 Revue belge (1987-1), pp. 153 et seq.

400 Chapter 17 2 The Applicable Law Rules prohibiting or restricting the use of methods or means of warfare may be found in treaties, in customary law and, arguably, among the principles of law. First taking the relevant treaties in chronological order, it appears that: – Iran (or Persia, as it was named at the time of the Hague Peace Conferences) is a party to the Hague Convention on Land Warfare with annexed Regulations of 1899; it has not become a party to the revised version of 1907; Iraq is party to neither version; – Iran is, but Iraq is not, a party to the Declaration (IV, 3) Concerning Expanding Bullets, of 1899; the Declaration records the agreement of the parties “to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions”; the bullets are commonly referred to as dum-dum bullets; – both Iran and Iraq have ratified the Geneva Gas Protocol of 1925, which reaffirms the prohibition of “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices” (chemical weapons, for short); Iraq has attached a reservation providing in part that it “shall cease to be bound by the Protocol towards any Power at enmity with him whose armed forces, or the armed forces of whose allies, do not respect the Protocol”; – Iran and Iraq have joined in the adoption by consensus of Protocol I of 1977; Iran has subsequently signed but not ratified the Protocol; as it has not made its intention clear not to become a party, it “is obliged to refrain from acts which would defeat [its] object and purpose”;

3

4 5 6

7

8

Convention (II) with Respect to the Laws and Customs of War on Land, with annexed Regulations; signed at The Hague, 29 July 1899; D. Schindler & J Toman, The Laws of Armed Conflicts, 3rd ed. (1988) p. 69; list of signatures, ratifications and accessions, p. 94. Convention (IV) Respecting the Laws and Customs of War on Land, with annexed Regulations; signed at The Hague, 18 Oct. 1907; ibid. Signed at The Hague, 29 July 1899; Persia ratified the Declaration on 4 Sept. 1900; ibid., p. 109. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva, 17 June 1925; ibid., p. 115; Iraqi reservation, ibid., p. 123. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted at Geneva, 8 June 1977; ibid., p. 621. Art. 18 of the Vienna Convention on the Law of Treaties, adopted on 23 May 1969.

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neither State has become a party to or a signatory of the Conventional Weapons Convention of 1980; both Iran and Iraq are signatories but not parties to the ENMOD Convention.

Although rules of customary international law are notoriously more difficult to trace, it may be safe to state that: – the substantive rules embodied in the Hague Convention and Regulations of 1899/1907 have become part and parcel of the body of customary law; the pertinent part of the Regulations is Chapter I (Means of Injuring the Enemy, Sieges, and Bombardments) of Section II (Hostilities); – the prohibition on the use of dum-dum bullets has also long since formed part of the realm of customary law; – a significant part of the rules on methods and means of warfare, embodied mainly though not exclusively in Section I (Methods and Means of Warfare) of Part III (Methods and Means of Warfare, Combatant and Prisoner-ofWar Status) of Protocol I of 1977, is generally regarded as belonging to customary law; – these latter rules govern the use of all methods and means of warfare, whether old or new and including incendiary weapons, or delayed-action munitions such as land mines; – confirmation of the customary law character of some of the pertinent basic rules may be seen in the unanimous adoption by the UN General Assembly on 19 December 1968, of Resolution 2444 (XXIII), and in the adoption with no votes against by the same organ, on 9 December 1970, of Resolution 2675 (XXV). 9

10

11 12

13 14

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, with annexed Protocols; adopted at Geneva, 10 Oct. 1980; Schindler & Toman, op. cit. note 3, p. 179. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, adopted by A/RES/31/72 on 10 Dec. 1976; ibid., p. 163; while Iran voted in favour of the resolution, Iraq abstained, ibid., p. 169; subsequently, both States signed the Convention; ibid., p. 170. On this, see T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989). It is suggested, in other words, that the bulk of the provisions in the Mines and Incendiary Weapons Protocols annexed to the Conventional Weapons Convention of 1980 have the status of customary law. 0p. cit. note 3, p. 263. Ibid., p. 267; as mentioned on p. 268, the resolution “was adopted by 109 votes to none, with 18 states abstaining or absent”, and a note specifies that “A roll-call did not take place.”

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Turning to principles next, we fortunately need not enter here into the perennial debate about the recognition of principles of law as a separate source of international law, since relevant normative statements that may have commenced their existence as mere principles at best, have meanwhile been incorporated in treaties in force and thereby acquired the status of treaty law. To characterize these normative statements as principles now serves merely to point to their high level of abstraction, resulting in a lesser capacity than other, more concrete rules to provide direct answers to specific questions about the legality of given methods or means of warfare. Pertinent instances include: – the statement that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited; – the prohibition on the employment of “weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”; – the prohibition on the employment of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”; and – the principle that the belligerent parties “shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives.” Other notions of primordial interest to our present discussion include: – the responsibility of the State for all acts committed by persons forming part of its armed forces; – its obligation to issue orders and instructions to its armed forces in conformity with the applicable rules;

15 16 17 18

19

20 21

See F. Kalshoven, “The Conventional Weapons Convention: Underlying Principles”, 30 IRRC (1990), p. 510 et seq. Hague Regulations, Art. 22; A/RES/2444 (XXIII); Protocol I, Art. 35(1). Hague Regulations, Art. 23(e) (with slightly different wording); the text as quoted is in Protocol I, Art. 35(2). Protocol I, Art. 35(3);thus far, this recent addition to the list probably has force only as treaty law between the parties to the Protocol, whereas other belligerent parties can probably at best be said to be under a moral obligation not to employ means or methods of warfare that may cause such damage. The principle is implicit in the Hague Regulations; it was expressed in slightly different terms in A/RES/2444 (XXIII) and 2675 (XXV); the phrase quoted in the text is from Protocol I, Art. 48. Hague Convention, version of 1907, Art. 3; Protocol I, Art. 91. As already in Art. 1 of the Hague Convention of 1899, unchanged in 1907; Art. 80(2) of Protocol I adds the obligation to supervise the execution of the instructions.

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the individual criminal liability of all persons for war crimes committed by them or under their responsibility; and, last but not least, the right and moral duty of the international community to ensure respect for the law of war.

Mention should finally be made of the Martens clause, according to which (paraphrasing Art. 1(2) of Protocol I) in cases not covered by treaties applicable between the parties at war, “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience. It should be pointed out that, in spite of occasional suggestions to the contrary, the clause does not have the effect of elevating in particular the “principles of humanity” and “dictates of the public conscience” to the rank of direct, independent sources of international obligation; on the other hand, they do represent important driving forces behind the law of war and its development. 3 The Actual Conduct of the War on Land In the Gulf War, as between the belligerent parties, few means of warfare were prohibited from the outset. However, all means of warfare without exception were subject to rules restricting their use. Moreover, both prohibitions and restrictions may conceivably have been subject to the operation of the principle of reciprocity or the right of reprisal. 3.1

Prohibited Means of Warfare: Chemical Weapons

Specifically prohibited from use were two classes of weapons: dumdum bullets, and chemical means of warfare. Whereas dum-dum bullets do not appear to have played any significant part in the Gulf War (nor in other armed conflicts), chemical weapons did, from a fairly early stage of the war down to the bitter end. The parties were moreover restricted in their choice of weapons by the principle prohibiting the use of means of warfare of a nature to cause unnecessary 22 23

24

Criminal liability for war crimes exists since time immemorial as a rule of customary law. See also chapter 8 of this book, especially the comment by Eric David. This principle can be derived e.g. from Art. 1(1) of Protocol I, providing that “The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances”; it may be seen in operation in a long series of resolutions of the UN General Assembly and Security Council and of international conferences of the Red Cross calling upon belligerent parties to respect the law. The clause stems from the preamble to the Hague Convention on Land Warfare of 1899, where it was introduced by the Russian delegate to the Peace Conference, Von Martens, to discard the unsolved and at the time insoluble problem posed by armed resistance on the part of the inhabitants of occupied territory.

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suffering. They may also have been under a moral obligation to avoid excessive ecological damage. This author has not, however, come across any claim that in their conduct of war on land, either of these principles has been specifically violated. In practical terms, therefore, we are left with chemical means of warfare as the only specific category of weapons to be considered under the present heading. There appears to be no room for doubt that in the Gulf War, Iraq has been the first, and for a long time the only belligerent to have recourse to such weapons: whether Iran reciprocated in the end is a matter of some uncertainty. No matter the precise facts, too many words need not be wasted on the legal side of the matter: in the relations between Iraq and Iran, the 1925 Geneva Protocol was fully applicable, and the reported Iraqi employment of chemical weapons, whether against Iranian combatants (as it may have been in most instances) or civilians, was indubitably unlawful. It should be pointed out that this lack of legality taints only the Iraqi use of the prohibited weapons. Under the terms of that State’s reservation as well as, plausibly, as a matter of customary law, the first use by Iraq effectively freed Iran as the victim State of its obligation of non-use for the duration of the war. While this would strictly speaking have permitted Iran to respond by unrestrained recourse to chemical weapons, a more commendable course, and one more in conformity with the principle of proportionality, would have been to limit itself to a reprisal in kind (and respecting the limits thereof ) or even to no use at all (with mere propagandistic exploitation of the psychological advantage thus gained). 3.2

Prohibited Methods of Warfare

In contrast with the relative paucity of prohibitions on the use of specific means of warfare, quite a few broad principles and detailed rules restrict belligerents in their choice of methods of warfare. The principles and rules have been authoritatively stated or reaffirmed in Protocol I of 1977. Important principles include:

25 26 27 28

29

See above, note 18. See hereafter, notes 74, 76. On the basis of the principle of reciprocity it was open to Iran to avail itself of the Iraqi reservation. M. Bothe, Das völkerrechtliche Verbot des Einsatzes chemischer und bakteriologischer Waffen – Kritische Würdigung und Dokumentation der Rechtsgrundlagen (1973) pp. 7075. For a case of such propagandistic exploitation, see the remarks of the Iranian representative in the Commission on Disarmament, quoted in Tavernier, loc. cit. note 1), p. 55. See also F. Kalshoven, “Belligerent Reprisals Revisited”, 21 NYIL (1990) p. 43.

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–

the prohibition “to kill, injure or capture an adversary by resort to perfidy”; – the prohibition “to make improper use of the distinctive emblem of the red cross [or the] red crescent…” – the prohibition “to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis”; – the prohibition to resort to “starvation of civilians as a method of warfare.” In common with most wars, isolated offences against either of these principles or the rules elaborating them are likely to have occurred in the Gulf War. The norms in question do not, however, appear to have been the target of systematic, government-controlled encroachment and consequently have not come to the fore in the discussions about the conduct of the belligerent parties. We may accordingly leave it at that. 3.2.1

The Principle of Distinction

Of a different order are the principles, reaffirmed already in 1968 by the UN General Assembly, “That it is prohibited to launch attacks against the civilian population as such” and “That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.” Upon closer inspection, the principle of distinction stands out as the more fundamental notion, with the categorical prohibition on attacking the civilian population and civilian objects and the obligation when attacking military objectives to spare the civilian population as much as possible figuring as its derivatives. Protocol I of 1977 elaborates these principles into a set of more or less precise, detailed rules which at least in part belong to customary law and to that extent were therefore applicable, alongside the fundamental principles, in the Gulf War. All these principles appear to have been openly flouted by both parties. Throughout the war the civilian population and civilian objects in enemy territory have often had to suffer the effects of attacks with all available means, including missiles, and directed either deliberately against them or against military objectives but with insufficient regard for the civilian persons and objects in the vicinity. It should be pointed out that at issue here are on the one hand a prohibited method, attack against the civilian population and, on the other, restrictions on recourse to an otherwise permissible method, attack on military objectives. In this context the means used in the attacks, whether as payload 30 31 32 33 34

Protocol I, Art. 37. Protocol I, Art. 38. Protocol I, Art. 40. Protocol I, Art. 54. A/RES/2444 (XXIII), supra note 13.

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(explosive, incendiary, chemical) or carriers (shells, bombs, land mines, ballistic or guided missiles), are largely immaterial. Assuming for the moment that the civilian persons and objects affected were truly civilian in character, the legal state of affairs may be summarized as follows: the prohibition on deliberately making such people or objects the object of attack is straightforward and categorical – except for a possible justification as reprisals, a point to which we shall come back shortly. Attacks on military objectives, on the other hand, are permissible in principle, and it is only by the transgression of certain limits that such attacks become unlawful. The limit at issue here was expressed in broad terms in the quoted UNGA Resolution 2444 of 1968 as the duty to spare the civilian population as much as possible. Protocol I of 1977 develops this precept into a set of rules relating to “incidental loss of civilian life, injury to civilians and damage to civilian objects.” The ideal is total avoidance of such loss or damage; when this proves impracticable, loss or damage should be minimized, and the outer limit is where such loss or damage would be “excessive in relation to the concrete and direct military advantage anticipated” as a result of the attack: violation of this rule of proportionality turns the operation into an indiscriminate attack. Implicit in these rules is the assumption of the truly civilian character of the persons and objects in question. Can it be argued that in the Gulf War, the populations of the countries at war had lost that quality? In an article appearing in 1984, Geoffrey Best has forcefully reminded us of the developments in the late 19th and 20th centuries, with the increasing involvement of the populations in the economic and political processes that determine the capacity of a State to wage war. These developments, which in the past already had led to the practice of “total war”, were very much in evidence in the Gulf War. At the same time, Best exhorts us to bear in mind that “The principles of discrimination between the real civilian and the real combatant remain crucial to a morally acceptable law of war.” This is, of course, precisely the purpose of the principles and rules on protection of the civilian population against effects of hostilities, as elaborated in Protocol I of 1977 but, it should be reiterated, with their roots firmly anchored in customary law. And the authors of these principles and rules have consciously rejected all notions of “war effort” or political inseparability of civilians and combatants, as factors to be taken into account in the elaboration of the principle of distinction. In effect, the single factor capable of temporarily depriving civilians

35 36 37 38

Protocol I, Arts. 51-57; the quoted phrase is from Art. 57(2)(a)(ii). Protocol I, Art. 51(4, 5); Art. 57(2)(a)(iii) and (b). G. Best, “Civilians in Contemporary Wars, a problem in ethics, law, and fact”, 35 Air University Review (1984), pp. 29 et seq. Ibid., p. 39.

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of their protection as such is specified as “taking a direct part in hostilities”. No matter how broadly construed, this term definitely does not encompass participation in the economic war effort, let alone belonging to the same political party or adhering to the same ideology as the national leader. Our conclusion is, therefore, that for purposes of the law of war, and irrespective of the possible degree of solidarity between combatants and civilians, the non-combatant part of the populations in Iran and Iraq had retained its civilian character throughout the war. There remains the question of the possible relevance of theories of reciprocity or reprisal for the justification of one belligerent’s attacks on, or causing incidental damage to, the adverse party’s civilian population. A first point is that plain negative reciprocity apparently has never been claimed as a consideration justifying such attacks, and understandably so, because the factor of direct military necessity that could warrant such a construction does not apply here. What about reprisals? While many classes of persons and objects have long been effectively protected from the impact of belligerent reprisals, with an important set of broad prohibitions dating from the Geneva Conventions of 1949, the alleged right of reprisal against the civilian population or civilian objects in unoccupied enemy territory has remained a highly controversial issue even after the introduction of a series of express prohibitions on recourse to such reprisals in the section of Protocol I of 1977 devoted to the general protection of the civilian population against the effects of hostilities. As these treaty prohibitions did not as such bind the parties to the Gulf War, their relations in this respect were governed by the uncertain rules of customary law. The uncertainty of the law concerns the question whether reprisals against the enemy civilian population and civilian objects are at all permissible. Assuming

39 40

41 42

Protocol I, Art. 51(3). Negative reciprocity, i.e. the right to disregard a rule because the enemy has previously done so, may be a valid argument when it comes to the employment of weapons (such as chemical weapons) of direct military significance to the progress of the military operations. It may be seen to underlie the reservations many States have attached to their acceptance of the prohibition of chemical weapons. F. Kalshoven, Belligerent Reprisals (1971). Art. 51(6): attacks against the civilian population or civilians by way of reprisals; Art. 52(1): civilian objects not the object of reprisals; Art. 53(c): no reprisals against protected cultural objects or places of worship; Art. 54(4): no reprisals against objects indispensable to the survival of the civilian population; Art. 55(2): prohibition of attacks against the natural environment by way of reprisals; Art. 56(4): no reprisals against works or installations containing dangerous forces the release of which may entail severe losses among the civilian population. Recent literature on the subject includes: Françoise Hampson, “Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949”, 37 ICLQ (1988) p. 818 et seq.; Christopher Greenwood, “The Twilight of the Law of Belligerent Reprisals”, 20 NYIL (1989) pp. 35 et seq.; Kalshoven, loc. cit. note 29.

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for the sake of convenience that this is still the case, they are then governed by the established customary rules applying to belligerent reprisals in general, viz., recourse only after due warning and as a last resort, proportionality to the wrong retaliated against, termination as soon as the cause no longer obtains. An additional constraint is sometimes seen in the principle of humanity (with reprisal attacks against the civilian population being regarded as inhumane), but it is precisely here that uncertainty has prevailed ever since the matter was first brought up for discussion. To this author it seems unsafe to rely on such a controversial principle. In this situation, it is a question of fact whether in the Gulf War a first serious encroachment on the rules for the protection of the civilian population might have been followed by a genuine reprisal. An episode related by Tavernier is of interest here, suggesting as it does that Iraq in late 1983 came close to formulating what might have amounted to a threat of reprisals. By that time, however, Iraq probably had forfeited any right of reprisal if we may assume, with David, that it had been the first in 1982 to start the bombardment of enemy cities. Be this as it may, it seems likely that, as on earlier occasions and notably in the Second World War, this or the other party may occasionally have used the word “reprisal” or phraseology reminiscent of that notion, but such use was rhetorical and propa43

44 45 46

To buttress his denial of the continued legality of reprisals against the civilian population David advances the following arguments: (1) Art. 60(5) of the Vienna Convention on the law of treaties excludes “provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular … provisions prohibiting any form of reprisals against persons protected by such treaties” from the application of the principle that a party to a multilateral treaty specially affected by a material breach may invoke the breach “as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State”; (2) Art. 51(6) of Protocol I prohibits reprisals against the civilian population, and (3) the statement in A/RES/2675 (XXV) that civilians “should not be the object of reprisals …” op. cit. note 2, pp. 163-164. As against this, it should be noted that Art. 60 of the Vienna Convention is applicable to treaty law and, as David himself specifies, the single treaty provision relevant here, the cited paragraph of Art. 51 of Protocol I was not in force between the parties; as the negotiating history of Protocol I makes abundantly clear, the paragraph cannot with any degree of certainty be said to reflect customary law, and neither can A/RES/2675 (XXV) be held to have decided the issue in a manner legally binding the parties to an armed conflict. This is not to suggest that reprisals against the civilian population are something commendable: far from it, and there is a strong moral argument against them. See also Kalshoven, op. cit. note 41. Kalshoven, op. cit. note 41, pp. 112-114, 353-361. 0p. cit. note 1, pp. 59-60. David, loc. cit. note 2, pp. 161-162. There may, however, be some ground for the view that the early bombardments and shellings affecting civilian areas were not directed against the civilian population as such and, possibly, were not even clearly indiscriminate; see the report of the UN mission that in 1983 inspected civilian areas in Iran and Iraq which had been subject to attack, annex to S/15834.

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gandistic rather than seriously meant to justify their attacks against or affecting the enemy civilian population. By way of conclusion it is submitted that the attacks carried out on either side against the civilian population and civilian objects in enemy territory violated basic precepts of the law of war applicable between the parties and could not be justified as legitimate reprisals. The attacks were, rather, acts of terror designed to bring the enemy to his knees. Even as such they failed completely, as neither party budged an inch under the impact of the attacks. 3.2.2

Nuclear and Oil Facilities

While in the foregoing the focus was on the civilian population and civilian objects in general and without differentiation as to specific targets, it remains to mention two such specific classes of target, viz., nuclear and oil facilities. Tavernier makes mention of an accusation on the part of Iran that Iraq had attacked a nuclear power station in Iranian territory. Assuming this to have been the case, the question arises whether the attack was necessarily unlawful. Had Protocol I of 1977 been applicable between the parties, Article 56 would have provided the answer. Under its terms the installation was immune from attack even if it represented a military objective, provided such attack might “cause the release of dangerous forces and consequent severe losses among the civilian population”, and even then unless the power station “provide[d] electrical power in regular, significant and direct support of military operations and if such attack [was] the only feasible way to terminate such support.” The answer was, in other words, a greatly qualified “yes”, with the final outcome depending on the facts of the case. It should be added that the whole matter of enhanced protection of “works and installations containing dangerous forces” was controversial from the outset and the language now found in Article 56 is very much a result of compromise. In these circumstances it appears inadmissible to treat the rules embodied in Article 56 as anything but treaty law. There is, moreover, little evidence that customary law already prohibits attacks on nuclear power stations other than in terms of the general principles for the protection of the civilian population and civilian objects. It seems therefore safe to conclude that as between the parties to the Gulf War, an attack on a nuclear power station would have been perfectly proper if there were sufficient grounds to regard the object as a military objective and the attack could be carried out without unduly severe losses among the civilian population. From an early stage of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 1974-1977, representatives of a number of Arab States, with Iraq among 47

Op. cit. note 1, p. 45.

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them, have done their best to make oil facilities the object of special protection. Their initiative may have been prompted more by a desire to protect their vast economic resources rather than any other value, such as civilian life or the environment. At all events, they initially, first covertly and later openly attempted to bring these objects under the umbrella of the “works or installations containing dangerous forces” of Article 56. Subsequently, once the idea of oil facilities as objects containing dangerous forces within the meaning of this Article had failed to gain currency, they strove to achieve their purpose by introducing proposals for their separate protection. Finally, when these attempts remained equally unsuccessful, the representatives withdrew their proposals. It is indeed fairly obvious that oil facilities are too much of a natural military objective in many situations, and had proved so in the past, to make the idea of their special protection widely acceptable. It is just one of those ironies of history that the Gulf War, with one of the belligerent parties among the most directly interested protagonists of such protection, should have been the first major war 48

49

50

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This appears the most plausible interpretation of the proposal of 14 Arab States to replace the word “namely” in paragraph 1 of the draft article (making the list of objects containing dangerous forces a limitative one) by “such as” (which would turn it into an open-ended provision); 3 Official Records (or OR), p. 224: CDDH/III/76 and Add. 1, 21 March 1974; more plausible, in effect, than the official reason given by the Egyptian representative introducing the amendment, that “the article should cover any new installations that might be produced by modern technology in the future.” 14 OR, p. 151: CDDH/III/SR./18, para. 32: Mr. El Ghonemy. Oil facilities were openly proposed for protection in the competent working group of Committee III in the course of the 2nd (1975) session; 15 OR, p. 352: CDDH/III/264/ Rev. 1, Report to Committee III on the work of the Working Group submitted by the Rapporteur. As noted in the report of the Rapporteur (supra note 49): “it was agreed that these [i.e., oil rigs, petroleum storage facilities, and oil refineries] were not objects containing dangerous forces within the meaning of this article…” The report goes on to say “that, if these objects are to be given any special protection by the Protocol, it should be done by another article, perhaps by a special article for that purpose. The Rapporteur has agreed to consult further with interested representatives on this question.” Significantly, already the report of Committee III on its work during the 1975 session, which repeats verbatim the greater part of the reports of the Working Group, no longer contains the language quoted in the previous notes; CDDH/III/215/Rev. 1, pp. 282-284. However, it does record the adoption by consensus of the article on 14 March 1975; p. 284. After the vote, the Egyptian delegate repeated his expectation “that questions concerning petroleum refineries and related installations would be covered in a separate article”; 14 OR p. 299: CDDH/III/SR. 31, para. 56: Mr. El Ghonemy. The report of Committee III on the work at the 4th (1977) session, CDDH/407/Rev. 1, para. 12, records the ultimate failure: “… a proposal concerning “General principles for the protection of oil and of installations for its extraction, storage, transport and refilling” (CDDH/III/GT/62/Rev. 1) was withdrawn by its sponsors.”

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since the adoption of Protocol I to see the proposed principle summarily brushed aside. Be this as it may, the episode can lead to no other conclusion than that as between the belligerent parties oil facilities were not specially protected from attack. 3.2.3

Attitudes of the Parties

The above overview of the actual conduct of the war shows a high degree of disrespect for relevant parts of the law, demonstrated at the highest political and military levels. Throughout the war, Iraq persisted in its employment of chemical weapons, and both belligerents frequently and openly disregarded the principles and rules for the protection of the civilian population against the effects of hostilities. The fact that Iran did not in turn make massive use of chemical weapons may have had as much to do with practical capabilities as with a sense of moral obligation. Yet it is of interest to quote here from a report of the UN Secretary-General on a visit he had paid to Iran and Iraq in April 1985. In the course of his visit he had made a double attempt: to induce both parties to agree to a cease-fire as well as, in the meantime, to respect the applicable law of war. On the latter point, the position of Iran was that “the application of specific conventions and protocols cannot be conditional upon a cease-fire: they have been adopted precisely to mitigate the effects of the war.” In contrast, Iraq took the position that “any specific measures to mitigate the effects of war must be clearly linked to a comprehensive cease-fire within a timetable; otherwise they would have the effect of prolonging the war.” One can only comment that Iran’s position was entirely correct; and if Iraq was serious in what it told the Secretary-General, it had completely missed the point of the law of war. One wonders moreover how in 1985, after five years of ruthless warfare, Iraq could still believe that its gross and systematic violations of the law were effectively shortening the war: to the interested onlooker, nothing of the kind appears to have been the case.

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Interestingly, Iranian authorities in Abadan at one stage explicitly took the view that an oil refinery complex near the city, which had been under Iraqi attack, “was not a civilian area and could be considered an economic installation of military significance and, therefore, a legitimate target”; as stated in the report of the UN mission that in 1983 inspected civilian areas in Iran and Iraq which had been subject to attack, UN Doc. S/15834, annex para. 42. Another matter is whether attacks on such installations may become unlawful as against third parties when the attacks entail unacceptable environmental pollution; on this see David, loc. cit. note 2, pp. 164-166. UN Doc. S/17097, 12 April 1985, paras. 8, 9. See also F. Kalshoven, Constraints on the Waging of War (1987) pp. 2-3.

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Repercussions in the Outside World

To say that the Gulf War has entailed strong repercussions in the outside world is to force an open door. Much of this had to do with the vast economic and other interests involved: the procurement of oil, the arms trade, etc. As for public opinion and the media, there was also a good deal of protest against certain unlawful modes of conducting the war by either belligerent. It would be of interest to know whether condemnation of these practices was general, perhaps even world-wide, or merely restricted, say, to the Western world. For want of such information, I can only say that at least in the Netherlands, both the use of chemical weapons and the indiscriminate attacks affecting the civilian population were generally condemned, with perhaps the stronger focus on chemical weapons. For the States that did not take an active part in the war, an obvious main concern was to maintain, and be seen to maintain, a neutral posture, especially when it came to defending their rights and notably the crucially important freedom of navigation in the face of both belligerents’ military operations. But they were concerned too with the issues arising out of the employment of chemical weapons and the attacks on civilian targets, and from time to time exerted such influence as they had to bring the belligerents to respect their obligations under the law of war. In this respect, it seems safe to regard at least the right of States to attempt to induce in belligerent parties a greater respect of the law of war, whether customary or conventional, as of general applicability. 4.1

Protecting Powers

“The present Convention shall be applied with the co-operation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.” Thus reads the opening sentence of Article 8 common to Geneva Conventions I-III, and Article 9 of Convention IV, of 1949.Ever since its adoption, rare exceptions apart, the phrase has remained the expression of a pious wish rather than a living reality; neither has the reinforcement of the system of Protecting Powers in Article 5 of Protocol I of 1977 thus far been able to modify the state of affairs. In the Gulf War of 1980-1988, in line with this regrettable trend, Protecting Powers were not appointed by the belligerents. Even had it been otherwise, the impact of the activities of Protecting Powers on the events discussed in the present paper might have been limited at best. The idea of a significant role for Protecting Powers in the “supervision and implemen57

That States are entitled to react to belligerent parties’ violations of the law of war is expressed in so many words in Art. 1 common to the Geneva Conventions of 1949 (and of course, in its form as treaty law directly applicable only to those Conventions), as part of the undertaking of the contracting States “to respect and to ensure respect for the present Convention in all circumstances.” Art. 1(1) of Protocol I of 1977 reiterates this formula.

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tation” of the law of war was devised especially in the context of the part of the law properly called the “law of Geneva” and dealing with the treatment of war victims in the hands of the enemy. Significantly, while the supervisory function of Protecting Powers blossomed in the First World War and was for the first time incorporated in the Prisoners of War Convention of 1929, the international legislators of the period did not consider entering a similar provision in the Geneva Gas Protocol of 1925. True, the broad language of Article 5 of Protocol I of 1977 suggests an expansion of the role of Protecting Powers to encompass the Hague-type rules in the Protocol as well, and these include the rules relating to means and methods of warfare. However, to implement this in practice would imply a significant departure from the original idea of a Protecting Power which (in addition to its normal diplomatic function of safeguarding the interests of belligerent party A in its relations with party B) assumes, at the behest of A and with the agreement of B, the supervision of the treatment of nationals of A in the hands of B. To supervise, say, the implementation of the rules relating to the protection of the civilian population from the effects of military operations, or those prohibiting the use of a specific (class of ) weapon, would require for the Protecting Power, reversing its traditional role, also to perform supervisory activities on behalf of B, as the potential victim of violations of the rules on the part of A. This would in turn require, not only the need to bring into the field an entirely different type of inspector, but a more perfectly neutral stance than a Protecting Power would normally be expected to maintain: a sort of Swiss neutrality, so to speak. 4.2 The ICRC This brings to mind the institution that from its creation in the 1860s has done its utmost to maintain such “Swiss” neutrality and in all armed conflicts to extend its supervisory functions to both sides to the conflict: i.e., the ICRC. As far as relevant here, this is recognized in two ways in treaty law: by indicating the

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To use the terms of Art. 5 of Protocol I. Arts. 86, 87; op. cit. note 3, p. 359. The opening phrase of Art. 5 reads: “It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Convention and of this Protocol by the application of the system of Protecting Powers…” (emphasis added). See F. Kalshoven, ”Impartiality and Neutrality in Humanitarian Law and Practice”, 30 IRRC (1990), pp. 516-535, in particular pp. 527-531.

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ICRC as a natural substitute at least for the humanitarian functions of Protecting Powers, and by recognizing its independent right of humanitarian initiative. While these functions and this right of initiative primarily envisage the protection of war victims in the classical Geneva sense (in the main, the wounded and sick, prisoners of war, and civilians in occupied territory), the ICRC has long also been concerned with the fate of human beings suffering the direct impact of hostilities. Thus, ever since the First World War it has raised its voice against the use of chemical weapons and the bombardment of civilians. In the Gulf War too, the ICRC from an early stage has continued to remind the parties of their obligations not to attack the civilian population and in attacking military objectives to spare it as much as possible. Shedding its habitual discretion it repeatedly made its concerns public, calling on the parties to the conflict to terminate their violations of the fundamental principles involved and asking the international community to support these appeals. In the same vein, though initially somewhat more hesitantly, it publicly exposed the use of chemical weapons. The immediate effect of its remonstrations on the belligerents’ conduct of the war may have been slight, although of course each belligerent was invariably willing to assure the ICRC of its intention to respect the law and at one time even asked the ICRC to send delegates to visit the civilian victims of its enemy’s acts of indiscriminate violence. More important may have been the indirect effects, through the mobilisation of public opinion, third States and the United Nations. 4.3 The United Nations While the Security Council from the outset was concerned with the war between Iran and Iraq, its prime focus throughout the war was obviously on the termination of hostilities and the restoration of peace and security in the region. This also determined the main thrust of the mandate of the Secretary-General in his many activities relating to the war. Yet, in the course of time, both United 62 63 64 65

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Art. 10(3) common to Geneva Conventions I-III, Art. 11(3) of Convention IV, Art. 5(4) of Protocol I of 1977. Art. 9 common to Conventions I-III, Art. 10 of Convention IV, Art. 81(1) of Protocol I. Public appeals of this order are recorded in each of the ICRC annual reports for the years 1983-1988. As related in the annual report for 1984, a first veiled condemnation (of “products prohibited by the law of war”) was made public on 7 March 1984. The report for 1987 relates that after a special UN mission had reported on the use of chemical weapons, the ICRC in May of that year had officially informed the belligerents of its concern in this regard. Report for 1987.

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Nations organs became involved in efforts to bring the belligerents to an attitude of respect for the law of war as long as the fighting lasted. As far as the issues dealt with in this chapter are concerned, the effect of military operations on the civilian population chronologically was the first to require their attention, soon to be accompanied and in some measure overshadowed by the employment of chemical weapons. 4.3.1

The Principle of Distinction

On 31 October 1983 the Security Council for the first time officially expressed its concern at the “heavy losses of civilian lives and extensive damage caused to cities, property and economic infrastructures” as a result of the war, and it called “for the immediate cessation of all military operations against civilian targets, including city and residential areas.” It did this on the basis, inter alia, of a report of the Secretary-General dated 20 June 1983 on a mission he had dispatched to both countries at war to inspect civilian areas that had suffered the effects of military operations. The mission had toured war zones in Iran and Iraq in May 1983 and visited a number of cities and villages located in the border area which had suffered greater or lesser damage as a result of the impact of bombs, missiles or artillery shells. Its report provides excellent insight into the functions of a fact-finding mission in a war zone, the skills required of its members and the difficulties it may expect to encounter. Striking features are the systematic, detailed description of relevant facts such as losses and damage suffered or the presence of objects in the vicinity that might be regarded as military objectives, and the carefully phrased, balanced conclusions drawn on the basis of the facts so established. Significantly, the mission neither accused any party of having carried out attacks in violation of the law, whether against the civilian population as such or indiscriminately against military objectives and civilian objects, nor did it attempt to justify any attacks on military or legal grounds. Had it done so, it would surely have overstepped the limits of its terms of reference as well as, more importantly, of its possibilities in the circumstances. In subsequent phases of the war, both parties resorted to deliberate attacks on civilian targets in the enemy hinterland to a far greater degree than in the comparatively mild opening phase of the war. Both the Security Council and the President speaking on behalf of its members more than once condemned recourse to such methods and called upon the parties to put an end to it. 67 68 69 70

S/RES/540 (1983) of 31 Oct. 1983. UN Doc. S/15834. S/RES/582 (1986) of 24 Feb. 1986; S/RES/598 (1987) of 20 July 1987. UN Doc. S/17004, 5 March 1985, expressing alarm over reports that the parties were “attacking or preparing to attack civilian areas”; UN Doc. S/17036, 15 March 1985,

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Particularly vigorous efforts to the latter effect were made by the SecretaryGeneral, who from an early stage attempted to bring about a sort of cease-fire, or moratorium, by which the belligerents would agree to desist from deliberate attacking purely civilian targets. On 14 June 1984 he was able to report to the Security Council that the belligerents had given such undertakings effective from 12 June. Noting that each of the parties “had made independent requests for arrangements to verify compliance with the undertakings”, he set up two teams, each consisting of three officers drawn from the UN Truce Supervision Organization and one official of the Secretariat, and with the mandate to inspect specific allegations of violations of the undertakings and report to him. On 29 June, in a letter to both parties, he noted with satisfaction that they were “implementing in good faith their undertakings to refrain from military attacks on purely civilian areas.” Even so, the belligerents soon resumed their attacks with increased intensity, leading the Secretary-General to express his dismay “that the moratorium on attacks on purely civilian areas has not been respected.” 4.3.2

Chemical Weapons

A similar, rather disappointing story must be told about the exertions of UN organs to make the belligerents refrain from the use of chemical weapons. From 1984 onwards the President of the Security Council and since 1987 the Council itself have frequently reminded the belligerents of the need to abide strictly by the provisions of the 1925 Gas Protocol. The President in particular has not hesitated to do so in terms that were ever more directly addressed to Iraq. All of these statements and resolutions were based on the findings of specialists dispatched

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expressing concern “over the scale of the renewed hostilities”; UN Doc. S/18538, 22 Dec. 1986; UN Doc. S/19626, 16 March 1988. UN Doc. S/16627.The members of the Security Council soon agreed with the proposed measures (UN Doc. S/16628) and the system became effective as from 15 June 1984. UN Doc. S/16663. UN Doc. S/17097, 12 April 1985: report on his visit to Iran and Iraq, para. 2. UN Doc. S/16454, 30 March 1984; UN Doc. S/17130, 25 April 1985, specifying that chemical weapons had been used “against Iranian soldiers”; UN Doc. S/17932, 21 March 1986, repeating in so many words the conclusion of experts “that chemical weapons on many occasions have been used by Iraqi forces against Iranian forces”; UN Doc. S/18863, 14 May 1987, adding to the previous statement “that civilians in Iran also have been injured by chemical weapons” and, using a significantly different phraseology, “that Iraqi military personnel have sustained injuries from chemical agents.” S/RES/598 of 20 July 1987, referring cautiously to “the use of chemical weapons contrary to obligations under the 1925 Geneva Protocol”; S/RES/612 of 9 May 1988, expressing the Council’s expectation that “both sides [would] refrain from the future use of chemical weapons”; S/RES/620 of 26 August 1988 (!).

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by the Secretary-General to investigate allegations (mostly by Iran) that chemical weapons had been used. The first mission was sent in March 1984, and the last one in mid-August 1988. Again, their reports represent important sources of information on the task of fact-finding missions in countries at war and the obstacles they are apt to encounter. Unfortunately, however, none of this was enough to bring about a change in the Iraqi mode of conducting the war. In the end, even the specialists were losing faith. As they noted in their report of 6 May 1987: We all firmly believe that, at the specialist level, we have done all we can to identify the types of chemicals and chemical weapons being used in the IranIraq conflict. If, in the future, a further mission is requested, then we will of course all be ready to respond. However, we now feel that technically there is little more that we can do that is likely to assist the United Nations in its efforts to prevent the use of chemical weapons in the present conflict. In our view, only concerted efforts at the political level can be effective in ensuring that all the signatories of the Geneva Protocol of 1925 abide by their obligations. Otherwise, if the Protocol is irreparably weakened after 60 years of general international respect, this may lead, in the future, to the world facing the spectre of the threat of biological weapons.

In transmitting the specialists’ report to the Security Council, the SecretaryGeneral underscored their concern and he urged “the parties concerned and all Governments to direct their full attention to the implications of the present report.” On 25 July 1988, once again transmitting a report of the specialists, he added that: In stressing once more the necessity for restraint and compliance with universally recognized rules of international law, and bearing in mind the ongoing efforts being pursued in the Conference on Disarmament towards a multilateral convention on the complete and effective prohibition of the development, 76

UN Doc. S/16433, 26 March 1984; UN Doc. S/17127 and Add. 1, 17 April 1985; UN Doc. S/17911 and Add. 1, 12 March 1986, containing testimony even of Iraqi military personnel on the use of chemical weapons by their own forces; UN Doc. S/18852, 8 May 1987, investigating also Iraqi allegations of Iranian use and concluding on this score that “Iraqi forces [had] been affected by mustard gas and a pulmonary irritant, possibly phosgene” but adding that “in the absence of conclusive evidence of the weapons used, it could not be determined how the injuries were caused” (leaving open, in other words, which side the chemical agents had come from); UN Doc. S/19823, 25 April 1988; UN Doc. S/20060, 20 July 1988, noting that in view of the rapid disappearance of certain volatile gases it might “be necessary to review existing machinery for verification by United Nations teams of the use of chemical weapons in order to ensure the timely presence of experts at the site of alleged attacks”; UN Doc. S/20063, 25 July 1988; UN Doc. S/20134, 19 August 1988.

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In the 1970s, when important parts of the law of war came up for revision, one crucial problem was how to improve the enforcement of the law. Of all the ideas put forward few were retained, and then for the most part in greatly watereddown fashion. Two aspects are of particular interest here. One is that attempts to introduce the United Nations in a supervisory capacity were unsuccessful: the only provision in Protocol I reminiscent of these attempts is Article 89, laying down the undertaking of the contracting States in “situations of serious violations of the Conventions or of this Protocol … to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.” The other is the introduction in Article 90 of an independent International Fact-Finding Commission, to be established when twenty contracting States have agreed to accept its competence as outlined in the Article. The experience of the Gulf War highlights the importance of fact-finding in the field. True, it did not noticeably change the practices of the belligerents. Yet, it did provide a solid basis for the endeavours of the international community to put a stop to their reprehensible conduct. When in due time the International Fact-Finding Commission of Article 90 is established, it will do well to study closely the reports of the various missions on their visits to the area. The Gulf War also has highlighted the potentialities of a UN SecretaryGeneral dedicated to the cause of humanitarian principles. His “overriding constitutional responsibility under the Charter” was from the outset, and remained throughout, “to seek an end to the conflict.” However, until that goal was achieved, he considered himself “also legally obliged under recognized international humanitarian rules to try to mitigate its effects, in areas such as attacks on civilian population centres, use of chemical weapons, treatment of prisoners of war and safety of navigation and civil aviation.” Little does it matter that his sense of legal obligation finds no basis in the conventional law of war: what counts is that his persistent efforts have contributed greatly to enhancing general understanding and respect for the law of war. 77

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The relevant provisions in Protocol I of 1977 include: Art. 5 on the appointment of Protecting Powers or substitutes; Art. 6 on the recruitment and training of qualified personnel; Art. 7 on meetings of the contracting States “to consider general problems concerning the application of the Conventions and of the Protocol”; Art. 81(l), on facilities for the ICRC; Art. 89 on cooperation among the contracting States in the event of serious violations; and Art. 90 on the establishment and facultative functioning of an International Fact-Finding Commission UN Doc. S/17097, 12 April 1985: report of the Secretary-General on his visit to Iran and Iraq, para. 7.

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There remains, of course, a sense of deep frustration that all the efforts to bring the belligerent parties to respect their clear legal obligations under the law of war ultimately remained without success. This shows, on the one hand, the tremendous difficulty in including a really determined leadership to change its modes of conducting a war; and, on the other, the urgent need to continue the dissemination of knowledge and understanding of the principles of the humanitarian law of war.

Chapter 18 The Protection of Cultural Property in the Event of Armed Conflict within the Framework of International Humanitarian Law*

An introduction to the history, specificities and significance of the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict having been made by other authors, the purpose of this article is to explore the wider world of general international law, a world where the phrase “cultural property” is not even mentioned. Admittedly, we will come across a closely related term, i.e., “cultural objects”, frequently in combination with “places of worship”. But it will be some time before we arrive at even those terms. The particular area of general international law to be discussed here is international humanitarian law, or, by its more traditional name, the “law of war”. Based on the understanding that war is about death and destruction, this body of law endeavours to mitigate these effects, along two lines. One concerns the prohibition or restriction of the use of certain means and methods of warfare, and the other, rules for the protection of certain classes of persons and objects. In the 1950s, in the wake of the adoption of the four Geneva Conventions of 1949, the phrase “international humanitarian law” came into use, at first solely for this latter, protective part of the law of war. Military circles were not enthusiastic at the time about the suggestion that “their” battlefield law would be referred to as humanitarian law as well. They felt that this shift in name masked the true, intrinsically harsh nature of battlefield law and, indeed, risked heralding the introduction of unduly soft, protective, elements into it. Conversely, members of *

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Published earlier in 228 Museum International (2005) pp. 61-69, as an elaborated version of a paper read at the UNESCO conference held in Paris in 2004 celebrating the 50th anniversary of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. For an earlier anniversary of the Convention, see Jean de Breucker, “Pour les vingt ans de la Convention de La Haye du 14 mai 1954 pour la protection des biens culturels”, in Revue Belge de droit international (1975) pp. 525-47. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) Relative to the Treatment of Prisoners of War; Convention (IV) Relative to the Protection of Civilian Persons in Time of War. For these texts and other relevant treaties see D. Schindler & J. Toman, The Laws of Armed Conflicts, 3rd ed. (2004); A. Roberts & R. Guelff, Documents on the Laws of War, 3rd ed. (2000); ICRC website: www.icrc.org.

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the Red Cross and Red Crescent community were afraid of seeing the notion of protective humanitarian law contaminated with crude battlefield law. Be this as it may, the point became moot with the drafting of the two Protocols of 1977 – one applicable in international armed conflicts and the other in specified internal armed conflicts. While the diplomatic conference of 197477 that drew up the Protocols had as its mandate and title “the reaffirmation and development of international humanitarian law applicable in armed conflicts”, both Protocols contain a mixture of the two types of rule mentioned before. Therefore, the phrase “international humanitarian law” has become a common expression as a synonym to the “law of armed conflict”; but these expressions have not necessarily acquired an identical meaning for everybody. As noted, the term “cultural property” made its entrance into the law of armed conflict with the Convention of 1954, and it figures only in that context. Yet the previous speaker, Adriaan Bos, has reminded us that the protection of certain specified, culturally valuable buildings had already been introduced in the Regulations on Land Warfare of 1899/1907. Article 27 of the Regulations provides that in sieges and bombardments, attacking forces must do whatever is necessary to spare these buildings “as far as possible”, always provided that they “are not used at the same time for military purposes.” The Article also instructs the besieged to mark the buildings with “distinctive and visible signs” and to let the enemy know what signs are used. However, it stops short of suggesting what signs might be suitable for this purpose. The Convention of 1907 on naval bombardment actually prescribes such a specific sign, described as “large, stiff rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower portion 3

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Protocol Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Protocol Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). CDDH (after its French acronym), convened in 1974 by the Swiss government. Official records published by the Swiss government, vols. I-XVII. Regulations annexed to Hague Convention (II) with Respect to the Laws and Customs of War on Land, 29 July 1899, and to Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18 Oct. 1907. Art. 27 of the Regulations, as amended in 1907, provides that: 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, 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. Hague Convention (IX) concerning Bombardment by Naval Forces in Time of War, 18 Oct. 1907.

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white.” I do not know whether naval forces intent on bombarding a coastal site ever sighted such devices. Yet it seems beyond doubt that the duty to utilise these large and stiff rectangular black-and-white panels has not become part of customary law and, in effect, may have become obsolete even as treaty law. In contrast, as held by the International Military Tribunal in its Judgment of 1946, the rules of warfare embodied in the Hague Convention and Regulations of 1899/1907 “were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war” as referred to in the Charter of the Tribunal, i.e., as customary law. I see no reason why this pronouncement of the Tribunal would not apply to the rule of Article 27. For the States parties to the 1954 Convention, Article 27 is a thing of the past. However, not all States are party to this instrument, nor is the Convention part of customary law. For non-party States the rule of Article 27 subsists, if not as treaty law, then as customary law. And fortunately, as we shall see, history has not stopped there. Both Protocols of 1977 make provision for the protection of cultural objects: Protocol I, applicable in international armed conflicts, in fairly extensive fashion, and Protocol II, applicable in specified internal armed conflicts, in somewhat briefer terms. We encounter cultural objects in the section of Protocol I which deals with the general protection of civilian populations against the effects of hostilities, 8

9

Art. 5 provides that: In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes. It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large, stiff rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower portion white. The International Military Tribunal for the trial of the major war criminals of the European Axis whose offences had no particular geographical location, Nuremberg, Judgment of 30 September 1946, section on “The Law Relating to War Crimes and Crimes Against Humanity”: The rules of land warfare expressed in the [Hague Convention of 1907] undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt “to revise the general laws and customs of war,” which it thus recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter [of the Tribunal]. See L. Friedman, The Law of War – A Documentary History, vol. II (1972) 922 at pp. 960-61. The quoted paragraph is also reprinted in Roberts & Guelff, op cit. note 1 at p. 178.

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i.e., the part of battlefield law that in 1899 fell under the heading of siege and bombardment. “General protection” achieves two things. It categorically prohibits attacks on civilians and civilian objects, and it requires parties in attacking military objectives to spare civilians and civilian objects as much as possible. Protocol I elaborates the obligation to “spare as much as possible” into a number of detailed rules. Yet they cannot remove the fact that military operations may legitimately entail suffering of civilians or damage to civilian objects. One article in the section of Protocol I on general protection of civilian populations deals with the protection of cultural objects. Article 53 prohibits committing “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.” This prohibition, which binds the parties on all sides to the conflict, is a good deal more stringent than the admonition of 1899/1907 to spare certain buildings “as far as possible”. Yet it is balanced by the prohibition “to use such objects in support of the military effort.” The Protocol unfortunately leaves the term “military effort” undefined and parties to an armed conflict may be inclined to construe it to their advantage. The records of the conference show that Article 53 is designed to accord these cultural objects and places of worship a level of protection higher than the general protection accorded to the generality of civilian objects. For a majority at the conference, this “special” protection was meant to remain restricted to the class of historic monuments, works of art and places of worship that in view of their recognized importance could actually be said to belong to the cultural or spiritual heritage of peoples. Less outstanding cultural objects would be accorded no more protection than other civilian objects. A minority refused to accept, however, that this differentiation in protection would apply to places of worship as well. Both the Holy See and delegates of Moslem States argued that every temple, church, synagogue or mosque, no matter its size or quality, was equally entitled to the special protection of Article 53. The matter remained unresolved, and it seems likely that both groups will continue to read Article 53 in either one’s preferred sense. 10

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Art. 53 provides as follows: Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art of places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals. For the drafting history of Art. 53, see H. S. Levie, Protection of War Victims: Protocol I to the 1949 Geneva Conventions, vol. 3 (1980) pp. 208-226.

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Interestingly, places of worship have also found a place in Article 52 of Protocol I. One rule in this core provision on “general protection” of civilian objects is that an object may lose its protection as a civilian object and become a military objective when it is used “to make an effective contribution to military action.” In concrete cases, doubt may arise as to whether an object that belongs to a class of objects that are “normally dedicated to civilian purposes” is actually used for military purposes. In case of such doubt the object must “be presumed not to be so used.” The Article provides examples of objects falling under this “rule of doubt”, and places of worship are actually the first example. There can be no doubt that the phrase here is meant to encompass all of these objects, from magnificent examples like St. Paul’s Cathedral or the Notre Dame to the modest village mosque or chapel, and whether old, new or under repair. A select group of cultural objects and places of worship figure in Article 85, on repression of breaches. Under its terms it will be a “grave breach” to attack historic monuments, works of art or places of worship that are clearly recognized as such and that are the object of specially arranged protection, for example (the Article adds), within the framework of a competent international organization. The Article stops just short of expressly mentioning UNESCO as the competent international organization of choice. 12

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Art. 52 provides the following: 1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. Art. 85, para. 4, provides in relevant part: In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol: … (d) making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives;…

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Protocol I does not reiterate the prescription of Article 27 of the 1899 Hague Regulations that objects qualifying for protection must be marked and the enemy informed of the sign chosen for that purpose. However, given the fact that, as noted earlier, the Hague Regulations are deemed to belong to customary law, this rule arguably continues to apply as well. An interesting question is whether these rules on marking and providing information also apply to internal armed conflict. Article 16 of Protocol II, which deals with the protection of cultural objects and places of worship, repeats verbatim most of the substantive wording of Article 53 of Protocol I. Yet when it comes to compliance, Protocol II is almost completely silent. Even assuming that the substance of the Hague Regulations of 1899 was deemed to apply as customary law in internal armed conflict, it seems extremely unlikely that secondary rules such as the ones on marking and informing could have acquired the force of customary law in relations between a government and the armed opposition groups confronting it. Nor am I at all sure to what extent even the primary rules on the protection of cultural objects in the Protocols of 1977 are part and parcel of customary law. To the extent that no higher level of protection is envisaged than the general protection accorded the generality of civilian objects, these rules may well be deemed to belong to customary law. I do hesitate, however, concerning the claim that Article 53 of Protocol I and Article 16 of Protocol II provide special protection for important cultural objects. The claimed effect of these rules is to raise the protection of these objects to a level close to the treaty regime provided by the Convention of 1954. Since I doubt that the rules on special protection in this Convention have become part of customary law, I am equally sceptical about the suggestion that the comparable rules in the Protocols would enjoy this status. To conclude my presentation, I add three remarks. The first concerns the question of whether, as the military initially feared, the insertion of the word “humanitarian” in the phrase “law of war” has led to a shift in focus, away from the brutality of war and with greater focus of protection. To answer this question, let us take a look at the practice of the International Criminal Tribunal for the Former Yugoslavia. The Tribunal has jurisdiction over “serious violations of international humanitarian law”, and these include violations of the “laws or customs of war.” In point of fact, although damage to objects such as mosques and churches is included in numerous indictments, the focus of the Tribunal in the vast majority of cases is primarily on the deaths and suffering inflicted on civil14 15

The only provision on compliance in Protocol II is in Art. 19: “This Protocol shall be disseminated as widely as possible.” Art. 1 of the ICTY Statute: “The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.”

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ian populations. The cases against Pavle Strugar et al. arising out of the shelling of the Old Town of Dubrovnic on 6 December 1991 provide an early outstanding exception to this tendency. Vice-Admiral Miodrag Jokić, one of the commanders held responsible for this bombardment, on 23 August 2003 entered into a plea agreement that included three violations of the laws or customs of war: devastation not justified by military necessity, unlawful attack on civilian objects, and destruction or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science (Counts 4-6). The Trial Chamber notes in its Sentencing Judgement of 18 March 2004 that Jokić had been aware of the Old Town’s status as a protected site pursuant to the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage, and that a number of buildings in the Old Town were marked with the symbols of the 1954 Hague Convention (para. 23). The Trial Chamber also notes that as a result of the shelling, many protected buildings were destroyed or damaged (para. 27). It concludes from its survey of the facts and the law that: Since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town, constituted of civilian buildings and resulting in extensive destruction within the site. Moreover, the attack on the Old Town was particularly destructive. Damage was caused to more than 100 buildings, including various segments of the Old Town’s walls, ranging from complete destruction to damage to non-structural parts. The unlawful attack on the Old Town must therefore be viewed as especially wrongful conduct [para. 53].

Yet, a striking fact like the destruction of the Mostar bridge remains to this day unpunished. The same applies with even greater force to an event like the destruction of the Buddhas of Bamiyan in Afghanistan, objects not under any specially agreed protection or jurisdictional powers yet of equally high cultural value. On 12 March 2001, UNESCO’s Director-General Koïchiro Matsuura had to express his distress at this shocking event, strikingly, just one day before he 16 17

The destruction figures in para. 116 of the Indictment against Jadranko Padric et al., signed on 4 March 2004 and unsealed on 2 April 2004. On this event, see Heleanor Feltham, Open Museum Journal, vol. 4; see also P. Ashwara Bhat, “Protection of Cultural Property under International Humanitarian Law: Some Emerging Trends”, The Journal of International Humanitarian and Refugee Law (2001) pp. 47-71. This author lists as the most recent destruction that of “the colossal images of Buddha of Bamiyan in Afghanistan during February and March 2001. This occurred in a non-international armed conflict as a measure of fanatic subjugation and as a means of drawing the attention of the international community for recognition and economic assistance.” (p. 49) Although Afghanistan was not a party

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could welcome, on 13 March 2001, the Indictment of 22 February 2001 against Pavle Strugar et al. in the Dubrovnik cases. My second remark is again a question: has the introduction into the Protocols of 1977 of rules on protection of cultural objects brought these rules into the central core of international humanitarian law? On this point, I note that the Plan of Action of the International Red Cross and Red Crescent Movement for the years 2000-2003 demanded that in the conduct of hostilities, every effort be made “to protect civilian objects including cultural property [and] places of worship.” Again, the Declaration adopted by the 28th International Red Cross and Red Crescent Conference in December 2003 even more emphatically calls on all parties to armed conflicts “to take all feasible measures to prevent pillage of cultural property and places of worship and acts of hostility against such property not used for military purposes.” It continues: We call upon all parties to an armed conflict to make all efforts to reduce incidental and prevent deliberate injury, death and suffering of civilian populations. The principle of distinction between the civilian population and combatants and between civilian objects and military objectives, and the principle of proportionality in the conduct of hostilities must be upheld in all circumstances. We call upon all parties to an armed conflict to take all feasible precautionary measures to minimize incidental civilian casualties and damage. We urge all parties to an armed conflict to ensure special respect and protection of women and children in accordance with international humanitarian law. In addition, the cultural heritage of peoples should be protected. We call on all to the 1954 Convention, Ishwara Bhat holds the Taliban as the de facto rulers bound by customary law to respect cultural property (p. 70). As noted in the text above, I do not share this optimistic view on the existence of customary law in situations of internal armed conflict. 18

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27th International Conference of the Red Cross and Red Crescent, Geneva, 31 Oct. - 6 Nov. 1999, Plan of Action for the years 2000-2003: 1. All the parties to an armed conflict take effective measures to respect and ensure respect for international humanitarian law and to ensure, in particular, in accordance with their relevant obligations under international humanitarian law, that: (a) in the conduct of hostilities, every effort is made – in addition to the total ban on directing attacks against the civilian population as such or against civilians not taking a direct part in hostilities or against civilian objects – to spare the life, protect and respect the civilian population, with particular protective measures for women and girls, and groups with special vulnerabilities such as children, the elderly, persons with disabilities and displaced persons and to protect civilian objects including cultural property, places of worship and diplomatic facilities; … 28th International Conference of the Red Cross and Red Crescent, Geneva, 2-6 Dec. 2003: “Protecting Human Dignity” – Final Declaration, 6 Dec. 2003. Ibid.

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parties to an armed conflict to take all feasible measures to prevent pillage of cultural property and places of worship and acts of hostility against such property not used for military purposes, as well as to prevent adverse effects on the environment. We also call on States to comply fully with the provisions of international humanitarian law, in particular, the Fourth Geneva Convention in order to protect and assist civilians in occupied territories.

Clearly, therefore, although the protection of cultural objects for obvious reasons will never become a core activity of the Red Cross and Red Crescent world, it is not lost sight of either. My last point links up to the hope expressed in Resolution I of the Hague Conference of 1954 “that the competent organs of the United Nations should decide, in the event of military action being taken in implementation of the Charter, to ensure application of the provisions of the Convention by the armed forces taking part in such action.” To the extent practicable, this wish has been fulfilled with the promulgation and entry into force of the Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law, which contains a paragraph specifically dealing with the protection of cultural property. The Bulletin, which sets forth “fundamental principles and rules of international humanitarian law applicable to United Nations Forces conducting operations under United Nations command and control,” was promulgated on 6 August 1999, on the occasion of the Centennial of the First International Peace Conference, The Hague, 1899. The Bulletin entered into force (with binding force within the United Nations) on 12 August 1999. The relevant paragraph in Section 6 (Means and methods of combat) reads as follows: The United Nations force is prohibited from attacking monuments of art, architecture or history, archaeological sites, works of art, places of worship and museums and libraries which constitute the cultural or spiritual heritage of peoples. In its area of operation, the United Nations force shall not use such 21

Records of the Conference convened by UNESCO and held at The Hague from 21 April - 14 May 1954, published by the Government of the Netherlands (1961) p. 78. The resolution was the outcome of a debate that started out with a Greek proposal to include in Art. 18 a clause making the Convention binding on contracting States “taking part in collective action in compliance with a decision taken by the competent organs of the United Nations.” After the legal difficulties with this proposal had been brought out and the Secretariat had suggested that the Conference “could vote a resolution expressing the hope that the United Nations adopt the principles of the Convention,” the Greek proposal was withdrawn. A French draft resolution was subsequently adopted. As the French delegate pointed out: “in practice, the United Nations could not adhere to a Convention. It was, however, necessary that the provisions of the Convention for the protection of cultural property would apply in the event of combined military action by the United Nations. That was the object of the French resolution.”

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The fact that cultural objects and places of worship are included in the SecretaryGeneral’s Bulletin on Observance by United Nations Forces of International Humanitarian Law is noted with gratitude.

Chapter 19 Bombardment: From “Brussels 1874” to “Sarajevo 2003”*

It’s tempting to wonder how many of the inventions of the past century we might have been better off without. Take the aeroplane, for instance. It has transformed warfare from an event in which trained soldiers kill each other on distant battlefields to occasions when death is rained down indiscriminately on innocent civilians, while the professional fighters fly at great height in comparative safety.” – John Mortimer, Where There’s a Will (2003) ch. 28.

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Introduction

The nineteen seventies were a period of active lawmaking in the sphere of the international humanitarian law of armed conflict, starting out with expert conferences and ending with the adoption by a diplomatic conference, on 8 June 1977, of two Protocols additional to the Geneva Conventions of 1949. As a member of the Dutch delegation to these events I got to know Professor Igor Blishchenko, member of the delegation of the Union of Soviet Socialist Republics. Politically, we were on opposite sides of a fence, and in the course of the proceedings each of us must have expressed views the other disliked enormously. Apart from politics, we got to respect and like each other on the frequent occasions we met, be it in the conference rooms in Geneva or on the boulevard of San Remo, the venue of the informal intersessional meetings organized by the fledgling International Institute of Humanitarian Law. I therefore accepted with alacrity the invitation to contribute to the Liber Amicorum commemorating my ex-colleague and friend. Bombardment, the wartime activity chosen for this essay, has a long history behind it. An enormous distance separates the primitive artillery of the past from the current sophisticated launching contraptions. It is neither my compe* 1

To be published in J. Doria, H.-P. Gasser and Ch. Bassiouni (eds.), The Legal Regime of the ICC: Essays in honor of Professor Blishchenko (2007). Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II); text reprinted in Roberts & Guelff (eds.), Documents on the Laws of War, 3rd ed. (2000) pp. 419, 481.

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tence nor my purpose to write about the technical side of the matter. Nor will I deal with the important question, frequently discussed in relation to operations such as Operation Allied Force, whether such recourse to force is at all justifiable, be it under the Charter of the United Nations or, more generally, according to jus ad bellum. Rather, my focus will be on bombardment as a method of warfare. As exemplified by the above quote from Sir John Mortimer’s Where There’s a Will, bombing operations may be criticised for the manner they are carried out or for their presumed effects, in particular on the civilian population. That the actions may be appraised differently by different people may be evident from episodes such as the targeting, in the course of the Kosovo campaign, of all the bridges in Serbia, or the bombardment of Falluja during the recent, second Iraq war in an operation I heard referred to, in a variant of General Sherman’s ill-famed sound bite of the American Civil War, as an attempt to destroy the city in order to liberate it. My purpose is to try and discover the rules relating to bombardment as they have developed in the framework of jus in bello, i.e., the body of law that in the past was styled the law of war and that today, in softer tones, is usually referred to as the international humanitarian law of armed conflict. (I shall use the various terms intermittently or even the acronym IHL.) My search starts at “Brussels 1874”, as the first intergovernmental conference to broach the matter of bombardment. It stops at “Sarajevo 2003”, as the first occasion for an international criminal tribunal to hold a specific shelling and sniping campaign against the light of international humanitarian law and, indeed, condemn it as a crime of terror. Between these two events lie a series of conferences, notably, the Hague Peace Conferences of 1899 and 1907 and the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 1974-1977. There also lies a much longer list of armed conflicts, with the First and Second World Wars (1914-1918, 1939-1945) as particularly noteworthy episodes. As we shall see, the aeroplane plays an important part in our story. Yet it had nothing to do with our two extreme points in time: the Brussels conference was held before the air arm started its ascendancy, and the weapons used against Sarajevo were a land army’s instruments such as howitzers, mortar and snipers’ rifles. 2 The Conference of Brussels, 1874 On the invitation of the Russian Government, delegates of fifteen European states gathered in Brussels on 27 July 1874 to examine a Russian draft text for an international agreement on the law of land warfare. After one month of deliberations, the conference on 27 August 1874 adopted two texts: a Final Protocol and 2

The 1999 NATO Kosovo bombing campaign.

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a Project of an International Declaration Concerning the Laws and Customs of War. Since the conference was not mandated to conclude a treaty, it could only transmit the Declaration of Brussels (as the text became known) to the delegates’ respective governments. With that, the matter came to a standstill: it would be a quarter of a century before the text was taken up as the basis of discussions on the law of war at the Hague Peace Conference of 1899. At the time of the Conference of Brussels, warfare was the business of “armies in the field”. Yet the armies were not always “in the field”: they often passed by or through towns, villages and other inhabited places. If a place was not defended, there was no use for bombardment and the ammunition could be spared for other occasions – a military logic that unfortunately was not always respected in practice. Of course, a fortified place was another matter: if it had to be captured, an artillery bombardment could greatly help preparing the final assault. The section on “sieges and bombardments” of the Declaration of Brussels reflects this state of affairs. As Article 15 has it: “Fortified places are alone liable to be besieged. Open towns, agglomerations of dwellings, or villages which are not defended can neither be attacked nor bombarded.” Article 16 requires the commander of a force attacking a fortified place to “do all in his power to warn the authorities” prior to commencing the bombardment; a weak obligation that does not even apply in the event that the operation qualifies as an assault. Article 17 calls for “all necessary steps” to spare a select group of buildings dedicated to culture and hospitals, but only “as far as possible” and “provided [the objects] are not being used at the time for military purposes.” Moreover, the defenders themselves are ordered to “indicate the presence of such buildings by distinctive and visible signs to be communicated to the enemy beforehand.”

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Text of Final Protocol and Declaration reprinted in Schindler & Toman (eds.), The Laws of Armed Conflicts, A Collection of Conventions, Resolutions and Other Documents, 4th ed. (2004) 21. On the drafting history of the Declaration, see J. de Breucker, “La Déclaration de Bruxelles de 1874 concernant les lois et coutumes de la guerre”, in 27 Chronique de Politique Étrangère (1974) p. 3; as he notes, the adoption by the Conference of rules on bombardment implied its recognition as a lawful method of warfare; at p. 59. This phrase is borrowed from the title of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864, reprinted in Schindler & Toman, op. cit. note 3, at p. 365. Art. 16 provides that “if a town or fortress, agglomeration of dwellings, or village, is defended, the officer in command of an attacking force must, before commencing a bombardment, except in assault, do all in his power to warn the authorities.” Art. 17 reads as follows: In such cases all necessary steps must be taken to spare, as far as possible, buildings dedicated to art, science, or charitable purposes, hospitals, and places where the sick and wounded are collected provided they are not being used at the time for military purposes.

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In drafting these rules, the delegates at Brussels evidently had short-range battle situations in mind where, for instance, distinctive signs marking buildings in a place under siege might be expected to be visible to the enemy outside the city walls. Another striking feature of the rules is that while specified buildings are singled out for protection, not a word is spent on the inhabitants of a defended place and their homes. Even so, the mere fact that the Conference adopted rules on bombardment at all and specifically prohibited bombardment of undefended places reflects a conscious choice between two opposing extreme tendencies in thinking about war: tendencies that are at issue in all lawmaking and law enforcement efforts in the sphere of so-called “battlefield law”. By way of explanation, let us listen to the voice of Baron Jomini, Head of the Russian delegation. Addressing the plenary opening session of the Conference, he said: There exist very conflicting ideas about war. While some would wish to make it even more terrible in order that it might occur less frequently, others would prefer to turn it into a tournament between the regular armies, with the peoples as simple spectators.

In terms of this choice between “conflicting ideas about war”, the rules of 1874 imply that the inhabitants of an undefended place, although perhaps not just “simple spectators” of a tournament between the opposing armies, at least were saved the ordeal of bombardment. In contrast, the “peoples” in a place under siege were left exposed to the hardships of war. The outcome of the debate at the Conference of Brussels on the subject of artillery bombardment may thus be qualified as steering a middle course between Baron Jomini’s two extremes. 3 The Hague 1899, 1907, 1923 From 18 May to 29 July 1899, again on the initiative of the Russian Tsar, the International Peace Conference convened at The Hague to discuss, inter alia, the law of war. This time, the outcome was a treaty: the Conference adopted

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It is the duty of the besieged to indicate the presence of such buildings by distinctive and visible signs to be communicated to the enemy beforehand. I borrow the phrase from the title of the book by A. P. V. Rogers, Law on the Battlefield, 2nd ed. (2004). As quoted by Jean de Breucker, op. cit. note 3, at p. 7; my translation from the original French: “Il règne en effet des idées très contradictoires sur la guerre. Les uns voudraient la rendre plus terrible pour qu’elle soit plus rare, d’autres voudraient en faire un tournoi entre les armées régulières, avec les peuples pour simples spectateurs.” Apart from war, the Conference discussed disarmament and international arbitration. On the 1999 centennial of the Conference see F. Kalshoven (ed.), The Centennial of the First International Peace Conference; Reports and Conclusions (2000).

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a Convention on land warfare. As noted earlier, the annexed Regulations on land warfare largely confirmed the results of the Brussels Conference of 1874: the lapse of a quarter of a century had not led to different insights on matters such as treacherous killing v. ruses of war, occupation, or the position of resistance fighters. In particular, Rules 25-27 on bombardment (in Section II – Hostilities, Chapter I – Means of Injuring the Enemy, Sieges, and Bombardments) simply copy the provisions on bombardment in the Declaration of Brussels. However, a first sign of changes to come may be seen in the adoption by the Conference of a declaration by which contracting states agreed “to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of a similar nature.” While balloons already provided a platform for such launchings, the “other methods of a similar nature” referred to the airplanes which had made their first tentative flights and in future might perhaps play a similar role. Strikingly, the declaration, with its flat prohibition of aerial bombardment, was signed and ratified by all the important states of the time. Yet, as signified by its five-year period, the prohibition was tentative: the delegates at the Conference had not found agreement on a text that could be attached as a permanent rider to the rules on bombardment in the Regulations. By the time of the Second Hague Peace Conference, 15 June – 18 October 1907, aircraft had developed to a stage where the prospect of their use as a platform for the “launching of projectiles and explosives” already began to be more realistic. In consequence, although the Conference did adopt a Declaration identical to the one of 1899, this time “for a period extending to the close of the Third Peace Conference” (a conference that would never be convened), the fate of the new Declaration was very different than that of its predecessor: among the main European states Great Britain would be the only one to ratify it. It should be added that the delegates at the same time completed the language of the existing categorical prohibition on bombardment of undefended towns etc. with the clause “by whatever means”. This amendment effectively precludes the argument that the Hague Peace Conference of 1907 had been thinking of nothing but ground artillery and that the rule it was reaffirming therefore could not be deemed to apply to aerial bombardment as well. While the argument may strike the reader as detestable anyway, it is a popular line of reasoning with governments or military staffs that wish to escape from the strictures of 10

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The official title is: Convention with Respect to the Laws and Customs of War on Land, and Regulations Respecting the Laws and Customs of War on Land. Text reprinted in Schindler & Toman, op. cit. note 3, p. 55. Text reprinted in Schindler & Toman, op. cit. note 3, p. 309; list of signatures, ratifications and accessions, p. 312. Text of declaration reprinted in Schindler & Toman, op. cit. note 3, p. 309; list of signatures, ratifications and accessions, p. 313.

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general rules that date from before the introduction of a new means or method of warfare. The delegates at the Conference of 1907 are therefore to be praised for their foresight in closing this escape route for the specific case of aerial bombardment. Another interesting product of the Conference of 1907 is the Hague Convention on naval bombardment. While its opening article copies the prohibition in the Hague Regulations on bombardment of undefended places, Article 2 exempts from this prohibition a series of military works, establishments and other objects that “could be utilized for the needs of the hostile fleet or army” and therefore may be bombarded. The rule reflects the plain fact that while undefended coastal places might be beyond the grasp of the land army, they could well lie within the reach of the naval forces. The point is that here, for the first time, the notion of “military objective” makes its appearance in the discussion about limits to bombardment and, with that, about the middle course between Baron Jomini’s “conflicting ideas about war”. Meanwhile, developments in the air were going fast. Bombs were dropped from the air in 1911, in a war between Turkey and Italy. And a few months befor