You are on page 1of 31

26

THE LAW OF WAR (INTERNATIONAL HUMANTTARTAN rnw)


Christopher Greenwood

SUMMARY
While a previous chapter (Chapter 20) examined the rules of international law which
govern the legality of resort to force by States, this chapter considers the law which applies once the decision to resort to force has been taken and fighting has started. It does not attempt to summarize the many treaties and rules of customary law which comprise the law of war. Instead, it concentrates on certain questions which lie at the heart of that law, namely: when does the law of war apply? Who is entitled to take part in hostilities? What is a legitimate target and how may it be attacked? What are the limitations on the weapons with which States may conduct hostilities? What protection does the law afford the victims of hostilities? How much, if any, of this law applies in civil war? And how can the law be enforced? Unfortunately, space does not permit treatment of the law of warfare at sea or detailed treatment of the law of belligerent occupation, each of which would require a chapter in their own right.

I.

INTRODUCTION
is, perhaps

If international law is in some ways at the vanishing point of law, the law of war
even more conspicuously, at the vanishing

point of international law.r

Chapter 20 (Gray) examined the rules of international law which govern the legality of resort to force by States, this chapter considers the law which applies once the decision to rcsort to force has been taken and fighting has started. For many people, the idea of laws about how wars are to be fought is a contradiction in terms, particularly now that international law prohibis recourse to force in most circumstances. Critics of the ideas of a Iaw of war' indude both those who argue that war eannot be regulated by law, because tcgal values will ahnays be abandoned in the fight for survival, and those who maintain

I Luprd.r9i!.plE-

784

CHRISTOPHER GREENWOOD

that it should notbe so regulated, because to do so makes the use of force less renders the possibility of war more acceptable. In fact, laws on the conduct of have existed in most cultures for hundreds, if not thousands, of years-rules the use of certain weapons or prescribing the treatment of prisoners, for example, traced back to classical times-and international law has contained a law of war start. Moreover, while it is undoubtedly true that this law has regularly been is also evidence that many States do take it seriously and that, in consequence, it docs some effect in improving the conditions of life for prisoners, civilians, the woundc4 other victims of war. The modern law of war (or, as it is frequently called today, the'law of armed conflide 'international humanitarian law') has been developed through a series of treaties,thcd important of which are the Hague Conventions of 1899 and their successors of lql/, four Geneva Conventions (dealing with wounded and sick on land, wounded, si& d shipwrecked at sea, prisoners of war, and civilians) of 1949, and the two L977 Addilid Protocols to those conventions.2 The 1949 Conventions are binding on almost every$t in the world3 but a number of major military powers, including the United States, areparties to the 1977 First Additional Protocol or other recent treaties, such as the tf, Ottawa Convention banning anti-personnel landmines. Since some of the provisimd the First Additional Protocol are declaratory of custom and thus binding on all St-' while others are innovations which bind only the States which are parties to the Pnmol, it is frequently important to consider which treaty provisions are part of customary lr and which are not (Greenwood, 1991).

In more recent times, another influence on the law of war has been the law of hrm rights. To the extent that human rights treaties apply in time of war or armed conflict,fir frequently cover much the same ground as the treaties on the law of war. The law ofm, however, is both more specialized and more detailed and in many areas internatid human rights law adds nothing to it.4 In addition, most human rights treaties are lirnH in their field of application, as demonstrated by the decision of the European Court t Human Rights in Bankovicv Belgium and othersthat the European Convention on Huor
Rights did not apply to the NAIO bombing of Yugoslavia during the Kosovo campaign1999,s because those affected by that bombing were not 'within the jurisdiction'of & NAIO States for the purposes of Article I of the European Convention on Human RiddE Perhaps most importantly, the law of war requires a degree of reciprocity in that alarvd war treaty applies only between States party to it, whereas a human rights treaty binds q State which is party to it irrespective of what other States do. Nevertheless, there arer:ryt
2 These and other relevant treaties are contained in Roberts and Guelff,2000. 3 For an interesting discussion of a rare conflict in which one of the belligerents was not initially

patyr

the Geneva Conventions, see the Partial Awards of the Eritrea-Ethiopia Claims Commission on the dfu relating to prisoners ofwar (2003) 42 ILM 1056 and 1083. a See, eg, Legality of Threat or Use of Nuclear Weaporc, Advisory Opinion" ICJ Reports 19t9t5, p6,
paras 24-25.

5 Bankovic v Belgium and others, decision of 2l December 2001, 123 ILR 94. For consideration of& applicability of the European Convention on Human Rights to British forces in Iraq after the overthrord Saddam Hussein in 2003, see R (Al-Skeini) v Secretary of State for Defence [2004] EWHC 2911,l2OO5l 2Wl, 140r (which concerned the period when Iraq was occupied territory) and R (Al-ledda) v Secretary of Stae ft Defence [2005] EWHC 1809 (which concerned the period after the end of the occupation in Iune 20O4)- ttt the time of writing, both these decisions were under appeal.

THE LAw oF wAR (rNrEnNerloNAL HUMANlrenreu

rew)

785

facets of warfare (such as the treatment of prisoners and the government of occupied territory) where human rights law may be applicable alongside the law of war.6 A fundamental principle of the law of war is that it applies equally to all the parties to an

armed conflict, irrespective of who is the aggressor. War crimes courts at the end of the Second World War rejected prosecution arguments that the illegality of Germany's invasion of, eg, the Balkan States made everything done by German forces during their
occupation of those States a breach of the law of war and judged members of the German forces by the same standards which applied to allied troops.T Conversely, the fact that Kuwait and its allies (known as 'the coalition') were acting lawfully in resorting to force against Iraq in 1990-91, whereas Iraq's invasion of Kuwait was plainly illegal, in no way relieved the coalition of its obligations not to target civilians and to treat prisoners of war in accordance with the requirements of the Third Geneva Convention. Nevertheless, it must be kept in mind that, in assessing whether a State is acting lawfully in using armed force, both the law of war and the law described in Chapter 20 must be kept in mind. The use of force by a State is lawful only if (a) its resort to force meets the requirements outlined in Chapter 20 and (b) the manner in which it uses force complies with the law considered in the present chapter.

II. WHEN DOES THE LAW OF WAR APPLY?


At one time the law of war applied only if there was a state of war between two or more States. 'War', for these purposes, was a formal legal concept which only came into being when there was a declaration of war or some other indication by one of the parties to a conflict that it regarded itself as being at war with its adversary; there could be war without actual fighting and fighting without war. Determining whether a conflict constituted a war, in this sense, was therefore never easy; contrary to popular belief, most conflicts did not start with a declaration of war even in the eighteenth and nineteenth centuries.8 This
problem became worse during the twentieth century and, since 1945, declarations of war have been almost unknown with most States engaged in hostilities denying that they were at war. Since the duty to treat prisoners or civilians in a humane fashion should not depend upon such formalities, in 1949 Article 2 of the Geneva Conventions provided that the conventions should apply to any armed conflict between States parties, even ifthe state of war was not recognized by one of them. Thus, servicemen captured in a conflict in which both sides denied that they were at war (such as the 1982 Falklands conflict or the
Kuwait hostilities of 1990-9 I ) were nevertheless prisoners of war. Today, therefore, the law

6 For example, the detention at Guantanamo Bay ofpersons captured by the United States in Afghanistan has been challenged as incompatible with the American Declaration of Human Rights; see, eg, the precautionary measures issued by the Inter-American Commission of Human Rights (2002) 4l ILM 532 and the US response, ibid, p 1015. On the applicability of human rights law in occupied territory see kgal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Adtisory Opinion, ICJ Reports 2004, p 136, paras 105-1 13. See also the two English decisions cited in n 5, above. 7 See, eg, United Statesv lisr, 15 Ann Dig 632 (19a8). 8 A report prepared in 1883 for a Board of Tiade committee examining the defence implications of a Channel Tirnnel stated that out of 1 17 conflicts between 1700 and 1870, only 10 had begun with a declaration of war; Maurice, 1883).

786

CHRISTOPHER GREENWOOD

of war applies to any armed conflict between two or more States, rffi r parties regard themselves as being in a state of war (Greenwood, 1987). That leaves, however, the question what is an armed conflict. The Geneva Conventions published by the International Committee of the Rod states that 'any difference between two States and leading to the interventin of the armed forces is an armed conflict' within the meaning of the Genela In humanitarian terms, this approach makes good sense. However, State equivocal and it is by no means clear that most States would regard an isolrd exchange of fire, however serious the consequences, as an armed conflir" operation the full panoply of the Geneva Conventions. A bigger problem is whether the law of war ever applies to hostilities in is not a State. The rssue of civil war occurring within a State is discussod la chapter. For present purposes, however, three difficult cases need to be consiLdFirst, there is the question whether the law of war applies to United irlrioperations. The United Nations is not a party to any of the treaties on thc (which are open only to States) and, since it acts on behalf of the international as a whole, there is an understandable reluctance to place it on a level of forces opposing it. If the law of war is not applicable, however, the humanitrir tion it offers is not available and the consequences of that may be terrible. [n now accepted that where the Security Council authorizes action by a Sate c States, as in the 1990-91 Kuwait conflict, the law of war applies with equal fuc sides in the ensuing hostilities. There is more uncertainty where the United takes military action through the deployment of a peace-keeping force aod h becomes involved in the fighting (as happened, eg, at various times in the Bci tilities in 1992-95). The United Nations has recently issued a directive uftth United Nations peace-keeping forces to observe the basic principles of the Inrd it is still unclear to what extent the United Nations force in such a case is to be party to hostilities and whether the full body of the law of war applies to ir Thc further complicated by the fact that the Convention on the Safety of United ltai Associated Personnel, 1994, which prohibits acts of violence against UnitEd peacekeepers, applies only if the law of war is not applicable. Secondlp during the decolonization era, many third world States argued '\zt beftveen liberation movements and colonial regimes should be treated as i and the whole law of war should apply. Their view prevailed in Article 1(a) of
Protocol I,1977, which provided that the Geneva Conventions and the
apply to:

Protod

in which peoples are fighting against colonial domination and occupation and against racist regimes in the exercise oftheir right ofself enshrined in the Charter of the United Nations and the Declaration on Principles national Law concerning Friendly Relations and Co-operation among States in with the Charter of the United Nations.
armed conflicts In such
a

situation, the'national liberation movement' representing the people

9 See the Secretary-General's Bulletin on Observance by United Nations Forces of Internationd tarian Law, Roberts and Gueiff, 2000,p 721.

THE LAw oF wAR (rNrunNerroNAl, HUMANrrenreu

raw)

787

may make a declaration that it accepts the obligations laid down by the Protocol and the Geneva Conventions, which will then apply to both sides in the conflict.r0 Article l(4) has never been applied and its practical effect is small, since colonial situations are now very few and of the other States to which it was intended to apply, South Africa has now abandoned apartheid and Israel has not become a party to the Additional Protocol and is consequently not bound by Article l(a). On ratification of the Protocol, the United Kingdom entered a reservation designed to ensure that Article 1(4) would not apply in the event ofa recurrence ofterrorism in Northern Ireland.rr Thirdly, there is the question of fighting between a State and a terrorist organization. Following the terrorist attacks of 1l September 2001, the United States government has taken the position that it has been engaged for some years in an international armed conflict with the Al-Qaeda terrorist movement. The United States has accordingly maintained that the law of war applies to its military operations against Al-Qaeda and that captured members of Al-Qaeda can be held for the duration of the conflict as combatants (although the United States contends that these detainees are not entided to prisoner of war status, an issue considered below). This approach appears to confuse a number of different issues. The attacks of 1l September were armed attacks against the United States for the purposes of Article 5l of the Charter and the United States was entitled to respond to those attacks by way of self-defence (Greenwood,2003). To the extent that, in Afghanistan, that led United States forces into conflict with the forces of another State, there was an armed conflict to which the law of war applied. But that does not mean that the United States has been engaged in an armed conflict with Al-Qaeda even after I I September 2001, still less for years before that date. Al-Qaeda has none of the attributes of statehood (territory, population, government) and is no more than an underground terrorist movement whose recourse to violence is criminal. It is noticeable that other States have not followed the United States approach in this respect.

III. WHO IS ENTITLED

TO TAKE PART IN HOSTILITIES?

A central feature of the laws of armed conflict ever since the eighteenth century has been the distinction between combatants and civilians. The distinction is important for two reasons. First, combatants are legitimate targets, civilians are not. Secondly, lawful combatants are entitled to participate in hostilitiesl2 and, if captured, to be treated as prisoners of war (POWs), whereas civilians who take a direct part in hostilities-and who thereby become unlawful combatants-are largely unprotected by the laws of armed conflict. They have no claim to prisoner ofwar status and can be tried and punished for their belligerent
10 Additional Protocoi I, Article 96(3). 11 Roberts and GueIff,2000, p 510. In fact, the situation

in Northern Ireland has never come wi*rin the of Article 1(4) in any event. 12 There are some non-combatant members of armed forces, such as chaplains, and medical personnel rho are not entitled to take part in hostilities. If captured, these non-combatant personnel do not become pisoners of war, although they may be retained by the capturing State, in which case they are entitled to treatment equivalent to that ofprisoners ofwar with certain additional privileges. This section concerns only te combatant members of armed forces.

tms

788 acts.

CHRISTOPHER GREENWOOD

It is therefore of the utmost importance that combatants should be from civilians. That is no easy task, however, when one party to a conflict

l&

irregular combatants rather than uniformed soldiers. Articles I and 2 of the 1907 Hague Regulations on Land Warfare and Artide 4 Geneva POW Convention, 1949, laid down different standards for members of the armed forces and irregular combatants. Under their provisions, members of 6c armed forces (a term which includes conscripts as well as professional soldiers) ofa are automatically entitled to combatant and, therefore, POW status. They fufta entitlement, however, if they engage in hostilities while disguised as civilians h, Prily Council held that two Indonesian soldiers who blew up a bank in Singapore an armed conflict were not entitled to be treated as prisoners of war and had been convicted of murder, because they had been disguised in civilian clothcs they planted the explosive.ra It has also frequently been held that a person who arms against the State of which he is a national is not a lawful combatant atd entitlement to POW status, even though he may be a member of the regular armcd
of the enemy State.rs

Irregulars, on the other hand are lawful combatants under the 190749 only if:

(1) they are members of an organized force;


(2) that force belongs to
a

party to the conflict;

(3) the force is under the command of a person responsible for his subordinatcs
(4) the members of the force wear a 6xed, distinctive sign, recognizable at a (5) they carry arms openly; and

(6) they conduct operations in accordance with

the laws and customs of war.r6

Although Article 4 of the Geneva POW Convention specifies that members of resistance groups in occupied territories may qualifi as lawful combatants, this is almost entirely syrnbolic as they are still required to comply with the above In general, this is impossible: few members of the resistance in France during the World War, for example, could have complied with the requirement of rt=ai 'fixed, distinctive sign'. The 1958 British Manual of Military Law, while concediry 'something less than a complete uniform'is sufficient to meet this requirement strtsE
. . . it is reasonable to expect that the silhouette of an irregular combatant in the standing against the skyline should be at once distinguishable from the outline of a inhabitant, and this by the naked eye of an ordinary individual at a distance from form of an individual can be determined.lT

did not 'belong' to a

\a Aliv

13 Israel denied that the forces of the PLO and PFLP were entitled to POW status on the ground State, Prosecutor v Kassem (1969), 42 ILR 470. Publie Prosecutor U9691 r AC 430. 15 See Oie Hee Koiv Public Prosecutor [1963] AC 829. For a contrary view, see Levie,

States

1979,p7+ couts have recently considered this issue in Padillav Bush,233 F.Supp 2d 564 (2002) (LE Cowt) and Hamdiv Rumsfeld (2004) 43 ILM 1166 (US Supreme Court). 16 These rules are relaxed in the ca se of a leyee en massq where the population of a territory

takes up arms against an invader who has not yet occupied the territory; Hague Regulations, 17 Bitish Manual of Military Law, Part III, para 92 (1958).

Artidc2-

THE LAw oF wAR (rNrEnNerroNAL HUMANrrenreu

rew)

789

The life expectancy ofsuch an irregular would be short. In practice, therefore, almost all irregulars fall outside the test laid down by the Hague Regulations and the Geneva Cdivention. Additional Protocol I attempts to alter this position. Article 44 of the Protocol largely assimilates regular and irregular forces. The first sentence of Article 44(3) lays down the basic requirement for both groups:

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.
This rule diffels from the 1907 I 1949 standard in two respects. First, it does not specifr the manner in which combatants must distinguish themselves from civilians; in particular, there is no reference to a fixed, distinctive sign. Secondly,Article 44(3) makes clear that the duty of a combatant to distinguish himself from the civilian population applies only 'during an attack . . . or a military operation preparatory to an attack'. If Article aa(3) had stopped there, it would have been generally acceptable. However,

the rule contained in the first sentence of the Article did not go far enough for some States who maintained that there would still be circumstances in which the standard was too high for guerrillas to meet. The result was that a second sentence was added to

tuticle 44(3):
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 (b) during

each

military engagement; and

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.

provision ploved highly controversial and was one of the reasons for the decision by United,States not to ratifr Protocol L It was said that the second sentence of Artide 4(3) went so far towards accommodating the guerrilla that it seriously undermined 6e protection of the true civilian. The drafting of the provision is certainly less than happy. Nevertheless, its effects should be overstated. The basic rule remains that stated in the first sentence of Article 44(3); looser standard in the second sentence applies only in the exceptional case where a t cannot distinguish himself in the normal manner. The United Kingdom made a ion at the time of ratifring Protocol I that such an exceptional situation can only in occupied territory or in a conflict covered by Article 1(a) of the Protocol.rs ; in cases where the second sentence does apply, a combatant is still required to arms openly throughout the time that he is visible to an adversary while deploying ing the launching of an attack. The view of most delegations at the Conference

Itis

fu

ich adopted the Protocol was that this meant that a combatant is required to carrlr arms

throughout the time when he is visible to an enemy while moving to the place from
an attack is to be launched. This interpretation has more support and accords better

the text than the PLO's statement that

it

was only necessary to produce weapons

It

Roberts and Guelff, 2000, p 510.

7go

CHRISTOPHER GREENWOOD

immediately before opening fire. A combatant who fails to comply with the sentence of Article 44(3) commits the war crime of forfeits his entitlement to POW status, although he is entitled to treamert to that of a POW until convicted.re In effect, the only difference between thc which must be given to a captured illegal combatant and that which must be POW is that the illegal combatant is liable to trial and, if convicted, to the mere fact of bearing arms. Until conviction, he must be treated in the sam POW. The only safe course for a commander is therefore to treat anyone cauCtr arms as a POW until it is established by an appropriate tribunal that he is oa

of the appropriate

that status.

Article 44(3)-or, at least, the rule laid down in the second sentence-isn tive provision and is thus binding only between States which have becomc
Additional Protocol L Other States continue to be bound by the stricter rule in Regulations and the Geneva POW Convention. The highly unsatisfactory rreil there are currently two different standards of what constitutes lawful combaancp The conflict in Afghanistan has provided a vivid illustration of some of 6e which can arise in practice regarding the question of who is entitled to The Protocol was not applicable to that conflict (neither the United States nor being parties to either 1977 Protocol), so the governing standard was that lairl the 1949 Geneva Prisoners of War Convention. The President of the United Stt mined that Al-Qaeda and Taleban fighters were combatants but did not quali& combatants and were not entitled to prisoner of war status. This decision, andthc that the United States could detain such persons as unlawful combatants withom to an impartial tribunal the question whether they were entitled to the status of
of war, has proved intensely controversial.2o

IV. WHAT IS A LAWFUL

TARGET AND HOW MAT BE ATTACKED?

The question who, or what, is a legitimate target is arguably the rnost important in the law of war. The modern law of targeting revolves around two central principlc

(a) only combatants and other military


principle of distinction);2| and

objectives are lawful targets; the

population and 'civilian objects' must not be made the target of atE&

(b)

even military objectives may not be attacked

if an attack is likely to

cause

casualties

or damage which would be

excessive

in relation to the

concreE

le Articles 44(4) and 37( l)(c). 20 Compare the decisions of the US Supreme Court in Rasul v Bush (2004) 43 ILM l2fil til ft comments of the Court of Appeal of England and Wales in Abassi v Secretary of State for feFd Commonwealth Affairs l2OO2) EWCA Civ 1316, 19 September 2002, 126 ILR 685. For discussirn {t international law issues, see Dinstein,20}4,pp 47-5O. 2l So-caled because it requires that a distinction be drawn between military obfectives and civili-L principle is codified in Article 48 of Additional Protocol I but is a rule of customary law appli#r{
States.

THE LAw oF wAR (rNrenNerroNAt. HUMANrrenreN

rew)

79r

direct military advantage which the attack is expected to produce (the principle of
proportionality).22
So far as people are concerned, the law is, at least, reasonably clear. Everyone who qualifies

for,combatant status under the rules discussed in the preceding section is a legitimate target, unless he is wounded and thus unable to take any further part in the hostilities, shipwrecked, has baled out ofa disabled airctaft, or has surrendered.23 All other persons are civilians and therefore may not be attacked unless they take a direct part in hostilities. The practice, widely followed in the Second World War, of treating the morale of an
enemy's civilian population as a legitimate target is now clearly unlawfi,rl and Article 51(2)

of Additional Protocol I expressly prohibits attacks designed to spread terror among the civilian population. This prohibition applies as much to guerrilla operations, such as the planting of a car bomb, as it does to large-scale aerial bombardment. The duty to distinguish behveen civilian objects and military objectives, however, depends upon a workable definition of what constitutes a military objective, something which it has not been easy to achieve. Attempts to draw up a list of legitimate military objectives were invariably overtaken by events as technological changes made more and more items of military importance.24 A more flexible definition was therefore formulated in Additional Protocol I, Article 52(2):
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.
The first limb of this test is broader than it may seem. While some items, such as tanks, military aircraft, or a munitions factorS are by their nature of military importance, an object which is, in itsel( normally harmless, such as a house or a water tower, may come to make an effective contribution to military action because it is used by enemy forces or simply because its location gives it a military importance. The importance of the second limb of the test lies principally in the phrase 'in the circumstances ruling at the time'. The significance of this phrase was summed up by one commeirtator in these terms: This element in the definition 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. (Kalshoven, 1978,

lll)

This emphasizes the importance of a commander

mfing

an up-to-date assessment of the

22 Codified in Articles 5 t (5Xb) and 57 of Additional Protocol I. The principle of proportionality is also part of customary international law. See, eg, US, Commander's Handbook on the Law of Naval Operations, (NWP 9) para 8.1.2.r and n 17 (1989). 23 GCI Article 12, GCII Article 12, Additional Protocol I Articles 40-42. 24 This was the fate of the Hague Draft Rules on Aerial Warfare, 1923.

vrz
significance of a

CHIMT()PEEl

GTDTYiaTYOOD

argc and the militarf aavantage of derying ordering an attadc Article 52(3) ofAdditional Protocol I goes on to provide that
In
case a place

it m the "'rntf

of doubt whether an object which is normally dedicated to civilian of worship, a house or other dwelling or a school, is being usd to contribution to military action, it shall be presumed not to be so used

rrah

This presumption applies only to objects normally used exclusively for civilia and not to objects habitually used both by the military and civilians, su& as railway lines. Even so, its application is likely to cause problems, especially in 6c zone. At what point do doubts about the use ofsuch an objea arise or ceasC provisions of Article 52(2), Article 52(3) is an innovation which has not bem customary law and is therefore binding only as between parties to Protocol L Much controversy has arisen concerning attacks on 'dual use' objects usd tt civilians and the military. Whether a dual use object is a military objective depclfi whether its military use is sufficient to bring it within the test laid down in Artidc the 1990-91 Kuwait conflict, the coalition treated lraq's power stations as lqiti gets, since they all contributed power to a national grid which supplied both ci military users. In view of the importance of this supply of power to the Iraqi power stations were undoubtedly making an effective contribution to Iraqi rnilirrSr and their destruction or neutralization offered a definite military advantage in th stances ruling at the time they were attacked. The only question which r"rrolil whether the damage to the civilian population caused by those attacks outrrcd$ military gains. If it had done so, then, notwithstanding that the power statirE military objectives, the attacks would have violated the principle of proportio'relirr That principle requires a commander to balance the likely civilian casualties injured) and damage to civilian property against the concrete and direct military tage anticipated from an attack. This is no easy task. An obvious example of an I which would violate the principle of proportionality is the bombardment of a smal post outside a crowded school. Most cases, however, are less straightforward- Arng parison between the military advantages and the civilian casualties which an expected to produce is necessarily going to be a fairly crude one. Nevertheless, tE required is that a commander should ask himself whether an impartial obseru consider the military gains he expects from the attack to be worth the likely casualties and damage. The United Kingdom has placed on record its understandiry the military advantage anticipated from an attack is intended to refer to the anticipated from the attack considered as a whole and not only from isolated or
parts ofthe attack.26

It is less clear what factors have to be taken into account on the other side ofthis In the case of the Iraqi power stations, for example, were the military advantags from attacking these targets to be weighed only against the civilian losses caused ir

25 See the evidence of General de la Billiere to the House of Commons Defence Committee,
Lessons of Operation Granby, 1991, p 2a.

26 Roberts and Guelff,2000, p

5ll.

THE LAw oF wAR (rNrnnNerroNAl HUMANIrenteN

rew)

793

attacks themselves, or should account also be taken of the wider effects of the drastic reduction in power supply, such as the failure of the water purification and sewage processing systems (both of which were dependent upon electric power), which had far greater effects upon the civilian population?27 To disregard any collateral damage which did not occur during the attacks themselves would be an excessively narrow approach and there are clear indications that the wider effects ofattacks were considered by coalition planners in applying the proportionality test. Nevertheless, the more remote the consequences, the more difficult they become to assess. In the case of the Iraqi power stations, for example, the long-term effects on the civilian population of the breakdown of essential services were as much a result of the Iraqi decision to give only a low priority to the needs of the civilian population, the maintenance by the Security Council, after the end of hostilities, of economic sanctions and the refusal by the Iraqi government to accept the conditions imposed by the Council on the sale of Iraqi oil. Moreover, if the long-term effects on the civilian population must be taken into account, so must the long-term military advantages which may be expected from an attack (Rogers, 1982, pp 310-311). The application of the principles of distinction and proportionality impose important duties on the commander who orders an attack. According to Article 57 of Additional Protocol I, those who plan or decide upon an attack must:

(l)

do everything feasible to verifr that the target consists of combatants or other legitimate military objectives under the test laid down in Article 52 and is not subject to any regime of special protection;28
cause

(2) refrain from launching an attack which may be expected to


civilian casualties or damage;

disproportionate

(3) if there is a choice of weapons or methods of attack available, select those which are most likely to avoid, or at least minimize, incidental civilian casualties or
damage; and

(4)

there is a choice between targets for obtaining a similar military advantage, choose the target which can be attacked with the least risk to civilian life and property.

if

In addition, an attack must be cancelled or suspended if it becomes apparent that the target is not, in fact, a military objective or that the attack cannot be carried out without
disproportionate civilian losses. The requirement that, in choosing the weapons and methods of attack which will be used, the commander should have regard to which of those weapons and methods will be most likely to avoid or reduce incidental civilian losses is particularly importanl It does not mean that the commander must always use the most discriminating weapon which his country possesses. At the lower levels of command, there will generally be litde choice of weapon available. Even where the commander has a range of weapons at his disposal (eg, if he commands a battle group), he is entitled to take account of considerations such as the quantity of a particular weapon at his disposal, the likely future demands on his

27

See

is probable

Middle East Watch, 1991. However, in view of the military adrantages which the attack produced, that they did not violate the principle ofproportionalitv whicher-er test one applies.

it

28 This is considered below.

794

CHRISTOPHER GREENWOOD

weapon stocks, the time within which a particular weapon can be broughto degree of risk to his own forces. Similarly, in selecting the method of aftare, his own forces, the likely level of casualties and the extent of the miliary disposal may lawfully be taken into account. Nevertheless, Article 57 marc effect in increasing or reducing collateral civilian casualties ofselecting a gim method of attack must always be one of the most important considerations in selection. It also means that there will be occasions when a commander rl higher level ofrisk for his own forces in order to avoid or reduce collateral enemy's civilian populatron. The application ofthese principles can be seen in coalition practice duriryft

conflict. The British Air Commander Middle East told the House of Commm Committee that on two occasions he had decided not to proceed with attacks allocated to the RAR because of the risk of collateral civilian losses.2e The US of Defense Report on the conflict also stated that pilots were instructed to bre*. if targets could not be properly identified and that methods of attack, including low level attacks and precision missiles, were designed to minimize civilian The law of armed conflict also imposes obligations upon a commander gp +& to protect the civilian population under his control from the effects of enmf Article 58 of Additional Protocol I imposes a duty to 'avoid locating militarf within or near densely populated areas'. This requirement is addressed primariny responsible for a State's long-term civilian and military planning. While it is th corollary of the obligations in Article 57, it must be admitted that few States are in this regard. Historical factors have often resulted in military objectives todrT located close to civilian population centres and considerations of cost and have tended to deter States from relocating them. There is also a duty to remove the civilian population from the vicinity of military objectives and a strict ition on any kind of 'human shield' policy. Howeveq the failure of a State to these requirements does not absolve its adversary from complying with the discussed earlier, although it may affect the application of the proportionalitf tst In addition to the general principles ofdistinction and proportionaliry certain are subject to special regimes of protection. The First, Second, and Fourth GGd Conventions and Articles 8 to 31 of Additional Protocol I contain several prwif$ prohibiting attacks upon medical facilities, personnel, and transport. Artide S d Additional Protocol I, like the Hague Convention on Cultural Property, 1954, q* special provisions for the protection of historic monuments and items of religioor d cultural importance. Article 5a(1) of Additional Protocol I prohibits starvation ofcirill as a method of warfare, while Article 5a(2) prohibits attacks on objects indispens*fu the survival ofthe civilian population, although, paradoxically, there is an exceptirfr a State pursuing a scorched earth policy on its own territory. Article 55, vrhid !* to protect the natural environment against the effects of attacks, is discussed in tft
next section. More controversially, Article 56 of Additional Protocol

prohibits attack on

d*

2e Evidence of Air Vice-Marshal Wratten, House of Commons Defence Committee, Preliminary Operation Granby, 1991, p 38. 30 UsFinalReporttoCongress,ConductofthePersianGulfWar(1992),AppendixO,ppl-10.

Lcsr,$

THE LAw oF wAR (rNrnnNerroNAI,

HUMANITIuIN r,ew)

795

dykes, and nuclear electrical generating stations, even ifthey are military objectives, ifsuch attack is likely to cause the release of dangerous forces and consequent severe losses among

the civilian population. This special protection is lost, in the case of nuclear electrical generating stations, only ifthey are used to provide electric power'in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support'. Insofar as this provision seeks to go beyond the requirements of the proportionality test, it is probably unworkable. Article 56 has been heavily criticized and is not regarded as declaratory of customary international law, so that it is binding only between parties to Additional Protocol I.

V. WHAT

ARE THE LIMITATIONS ON THE WEAPONS WITH WHICH STATES MAY CONDUCT HOSTILITIES?

It is a long-established principle that the parties to a conflict do not have an unlimited


right to choose the methods and means of warfare.3r Restrictions on their choice have taken two forms. First, certain general principles regarding weaponry have evolved.
Secondly the international community has adopted a number of specific prohibitions or restrictions, each of which deals with a particular type of weapon or method of warfare. The restrictions which have evolved apply to methods of warfare (ie, the use of weapons and tactics), as well as concerning the legality of certain weapons (means of warfare) as such. Whereas the prohibitions on certain weapons tend to be of greater concern to the military planner and those involved in weapons development, the limitations on methods of warfare are of direct concern to all commanders. Three general principles can be identified:

(1) the 'unnecessary suffering' principle prohibits the use of methods or means of
warfare which may be expected
injury;32

to

cause unnecessary suffering

or

superfluous

(2) the 'discrimination' principle prohibits the use of methods or means of warfare which cannot be directed against a specific military objective and are therefore
likely to strike civilians and military objectives without distinction;33 and

(3) the 'treachery' or 'perfidy' principle prohibits certain treacherous methods of


warfare.

In addition, there is an emerging principle prohibiting the use of methods and means of warfare which have certain effects on the environment. Although this principle exists, as yet, only in treaty law and is not part of customary international law, it is arguable that customary law requires that some regard be had to the likely effect of weapons on the environment. Of these principles, the unnecessary suffering principle has proved tie most important.
31 Article 22Hague Regulations on Iand Warfare, 1907; Article 35(l) Additional Protocol I.'Means of warfare' refers to the weapons and weapon systems themselves, while 'methods of warfare' refers to the manner in which weapons are used. 32 Article 23(e) Hague Regulations; Article 35(2) Protocol I. 33 Article 51(4) Additional Protocol I.

796

CHRISTOPHER GREENWOOD

which all weapons and must be judged, it has supplied the inspiration for many of the specific bansm categories of weapon discussed below. It is important to bear in min4 limitation which this principle imposes is relative, not absolute, in charactera weapon or method of warfare causes severe or widespread injuries, or s particularly cruel is not, in itself, sufif,cient to violate the unnecessary sufierin6 That principle only prohibits weapons which cause unnecessary svffering. Thc injury is an inherent feature of war; what this principle seeks to prohibit is -' of injuries or suffering which serve no useful military purpose. It thereforrc balance to be struck between the military advantage which a weapon or . method of warfare may be expected to achieve and the degree of injury or suff likely to cause. The first express statement of the principle in modern law is to be fouod in amble to the Declaration of St Petersburg, 1868, which states that 'the only object which States should endeavour to accomplish during war is to weaken tb forces of the enemy' and that 'for this purpose it is sufficient to disable thc number of men'. Since 'this object would be exceeded by the employment of uselessly aggravate the sufferings of disabled men or render their death weapons were held to be contrary to the laws of war. This approach is plistic; the object of military operations is not limited to disabling enemy destruction of enemy equipment, the disruption of communications and lines of the crippling or deception of targeting devices, for example, also constitute goals. Moreover, the effectiveness of a particular weapon has to be seen in the fidlr entire range of tasks which the armed forces as a whole have to accomplish. Eveo ofweapons against enemy personnel has to be seen as the use ofweaponry by one combatants against another, rather than as a duel between two individual combatmln In deciding whether the use of a particular weapon or method of warfare the unnecessary suffering principle, the crucial question is whether other wealr methods of warfare available at the time would achieve the same military SEI effectively while causing less suffering or injury. In answering that question, it h
is

As well as providing a general yardstick against

it

said that:

The factors which must . . . be taken into account are the availability of alternate systems (and their effects), the logistics of providing the weapon and its at the place where it is to be used when needed, and the security of the troops i (Bothe, Partsch, and Solf, 1982,p 197)

caused

On the other side of the equation, an assessment of the degree of injury or will include the painfulness of wounds and the degree of long-term In addition, it probably has to include the psychological damage as well as the injury to the victim.3a The principle of discrimination is an aspect of the rules regarding the protection civilians which were discussed in the preceding section. It prohibits the use of metho& of warfare which are inherently indiscriminate, including, according to Article 51(5Xa)of
34 See, however, the debate on this point in the Rep ort of the Conference of Governmeflt ExPerts on the IIe Certain Conventional Weapons, Lucerne Session 1974, para 23.

THE LAw oF wAR (rNrenNerroNAl HUMANrrenIe'N Lew)

797

Additional Protocol I, treating 'as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects', the practice known as 'target area bombing'. Iraq's use of Scud missiles against large areas in Saudi Arabia and Israel in 1991 was a violation of this principle. Although aimed primarily at methods of warfare, the discrimination ptincip\e wou\d also ban aweapon which was incapable of being used in a way which enabled it to target a specific military objective, for example the Vl and V2 of the Second World War, as it was impossible to control or predict where such weapons
would land.3s The treachery principle is the basis for the prohibition of certain methods of warfare which endanger protected persons, such as the use of the Red Cross emblem to shield military operations or the feigning of civilian status by combatants.36 The prohibition on the wearing of enemy uniforms in combat is also derived from this principle. Perfidy should be distinguished from legitimate ruses of war, such as the use of false signals to create the impression of troop movements. For historical reasons, the law of naval warfare permits a greater latitude in this area, treating as legitimate ruses conduct which the laws of land warfare might regard as perfidious.

In addition to the general principles, the laws of armed conflict contain a number of treaty provisions expressly banning certain weapons or substantially restricting their use:

(l)

bullets or projectiles under 400 grammes weight which are explosive or are charged

with fulminating or inflammable substances (St Petersburg Declaration, 1868);

(2) Dum-dum bullets (Hague Declaration No 3, 1899); (3) poison and poisoned weapons (Hague Regulations on Land Warfare,
23(a));

1907,

Article

(4) automatic submarine contact


Hague Convention No

mines which do not comply with the requirements

of

YlIl,

1907;37

(5) asphyxiating, poisonous, and other gases and all analogous liquids, materials, and devices, together with bacteriological weapons (Geneva Gas Protocol,1925 and.
later treaties, in particular the Chemical Weapons Convention, 1993);

(6) weapons which injure with fragments which cannot be detected by x-rays (Protocol I to the UN Convention on Conventional Weapons, 1981);

(7) certain

uses

of anti-personnel mines and booby-traps (Protocol II to the Con-

ventional Weapons Convention); the possession and use of anti-personnel mines is altogether prohibited for parties to the 1998 Ottawa Convention;

(8) certain

uses ofincendiaryweapons, in particular the use ofair delivered incendiary weapons against targets situated amongst concentrations of civilians (Protocol III to the Conventional Weapons Convention);

3s Another example would be the plan apparently devised, but never put into operation, in the Second World War to drop thousands of bats with tiny incendiary devices over |apan; US, Commander's Handbook on theLawof NavalOperations (NWP9), para9.l.2,n 12 (1989);ThomasandDuncan, t999,pMI. 36 Additional Protocol I, Articles 37-39. 37 This Convention requires that unanchored mines must be so constructed as to become harmless not more than one hour after being laid. Anchored mines must be constructed so as to become harmless as soon as they have broken loose from their moorings.

798

CHRISTOPHER GREENWOOD
laser weapons (Protocol

(9) certain uses of blinding


Convention).38

IV to the Conventional

Two separate treaty provisions have been adopted regarding the environmcnL the Environmental Modification Treaty, 1977 (the ENMOD Tieaty), bans thc
'environmental modification techniques having widespread, long-lasting or serlerE as the means of destruction, damage or injury'. Secondly, Additional Protocol L in the same year but by a different international conference, prohibits the 'methods or means of warfare which are intended, or may be expected, to catrsc spread, long-term and severe damage to the natural environment'.3e Despite the similarity between these two provisions, they are in fact very different. The Tieaty is designed to prevent the deliberate manipulation of the environment as a of warfare, whereas the environmental provisions of the Additional Protocol ae cerned with preventing incidental damage to the environment arising out of of weapons against other targets. Moreover, while ENMOD refers to 'widespread, lasting or severe' damage, the Protocol speaks of 'widespread, long-term and damage. That the threshold for application of the provisions in the Protocol is also demonstrated by the meanings attributed to these provisions. The records d ENMOD conference record an understanding that 'widespread' meant an area of hundred square kilometres, 'long-lasting' a period of months or 'approximately a and'severe' involved'serious or significant disruption or harm to human life, nanrJ
economic resources or other assets'.4o These interpretations, were expressly stated to the purposes of the ENMOD Tieaty only. By contrast, the records of the

Conference which adopted Protocol I reveal a quite different understanding ofthe nring of 'widespread, Iong-term and severe' in the context of the Protocol. Here,'longd apparently means a period of years or even a decade. The records also reveal 'a shared assumption that battlefield damage incidental to conventional warfare wonH t normally be proscribed by this provision' (Pilloud, 1987, para l45 ). The Confereac { Parties to the Convention on Certain Conventional Weapons adopted a Protood r Explosive Remnants of War in 2003.

A.

NUCLEAR WEAPONS

nufu { an Advisory Opinion given by the International Court of |ustice in l996.ar There k r legally binding instrument which outlaws nuclear weapons as such. Although sffiI
The most controversial question in relation to weaponry is whether the use of weapons would be contrary to the laws of armed conflict. This question was the subif
resolutions of the United Nations General Assembly condemn the use of nuclear wealm as contrary to the laws of armed conflict, these resolutions are not legally binding and ft International Court has taken the view that they do not give rise to a rule of customly international law.a2 Those treaties which deal with nuclear weapons (and which, of cour-,

are binding), such as the Test Ban Treaty, the Nuclear Non-Proliferation Tieaty,
38 For a valuable discussion of recent developments, see McClelland, 2005. 3e Articles 35(3) and 55. 40 Roberts and Guelff, 2000,p 407. ar Legality of the Threat or Use of Nuclear Weapons, Advisory Opiniott ICJ Reports 42 Ibid, paras 68-73.

ml

1996,

p 226; I 10 ILR IGL

THE LAw oF wAR

(rNrrnuarroNAl HUMANrrenreu lew)

799

regional agreements such as the Tieaty of Tlatelolco, do not purport to ban nuclear weapons outright but rather to impose restrictions on their possession or deployment. Although it has sometimes been argued that these treaties are merely specific illustrations of a general prohibition, there is nothing in their texts or their drafting histories to support such an inference. Indeed, they could just as well be taken to be evidence that no such general prohibition exists, since if it did, most of these agreements would be unnecessary. In reality, these treaties were negotiated between States which took very different views of the wider question of whether nuclear weapons are lawful and should therefore be seen as leaving that question open.a3

i i i i I J I I J I I l. J I J I f f J ! Ir

The Court also rejected the argument that, since nuclear weapons cause radiation 'poisoning', their use would violate the prohibition on 'asphyxiating, poisonous or other gases and of all analogous liquids, materials or devices'in the 1925 Geneva Gas Protocol and the ban on poisoned weapons in Article 23(a) of the Hague Regulations.s The fact that nuclear science did not exist at the time these instruments were drafted does not invalidate this argument-a treaty has to be interpreted in the light of changed circumstances and, if its terms are broad enough, it can cover weapons which were not envisaged by those who drafted it. Nevertheless, the argument is flawed. Although we speak colloquially of radiation 'poisoning', the effects of radiation on the human body are not strictly analogous to the effects of poisonous gases. Moreover, there is no evidence that the States parties to the 1925 Protocol regard it as applicable to nuclear weapons. The United States did not become a party to the 1925 Protocol until 1975, long after it had become the world's leading nuclear power. It is scarcely conceivable that the United States would inadvertently have signed away its right to employ its nuclear deterrent in this way, yet the United States made no reservation of any kind relating to nuclear weapons on acceding to the Protocol and none of the other parties to the Protocol upp.". to have suggested that the United States was now barred from using nuclear

*.upon..

fl. Court held, however, that the absence of a specific legal regime governing the use of nuclear weapons in armed conflicts did not mean that such weapons were somehow above, or outside the scope of, the law. Their use had to comply with the requirements of m. law on the use of force (considered in Chapter 20 above) and (with one exception) nuclear weapons were subject to the same general principles on weaponry and targeting as all other weapons. The Court unanimously concluded that:
e threat or
unlawful.
use of force by means of nuclear weapons that is contrary to 4, of the United Nations Charter and

Article 2, paragraph that fails to meet all the requirements of Article 51, is

I ^ *r.u, or use of nuclear weapons should also be compatible with the requirements of the J international taw applicable in armed conflict, particularly those of the principles and rules I. of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons.as I I n *"t therefore necessary to ask whether the use of nuclear weapons would violate the unnecessary suffering principle, because of the extent and nature of the injuries which I I]
Ii II nt I

I !r

13 Ibid, paras

s8-63.

44 Ibid, paras

54-57.

Ibid, para 105(2)(C) and (D).

f'

8oo

CHRISTOPHER GREENWOOD

they can cause. While the scale of injuries which can be caused by a nudcr undeniable, such a weapon also offers military advantages which are not conventional weapons, since the use of a single nuclear weapon is Iikely to hn tive effect upon enemy forces which often could not be produced by th. weapons available to a State. The entire NAIO strategy in Europe restod c assumption for many years. In these circumstances, it is difficult to see 'k nuclear weapons would invariably cause uwrecessary stJffering. Each case examined on its own facts to see whether the goal which a State sought to adi use of nuclear weapons could as effectively be achieved by the conventionC which it could bring to bear. Similarly, the use of nuclear weapons was held to be subject to the principlcs the protection of civilians and civilian property discussed in Section III abore. attack upon civilians or civilian objects is unlawful whether it is carried out uri or conventional weapons (unless it can be justified as a reprisal, a controverdl considered in a later section). Yet nuclear weapons, particularly ofthe batdcfifl can be used against military objectives, in which case their use would nc ri principle of distinction. The use of nuclear weapons against a military course, have to be scrutinized for compliance with the proportionality test re civilian casualties and damage to civilian property excessive in relation to thc direct military advantage the attack was expected to produce? In many GNc+. attack might fail this test but it cannot be said that it would invariably do sq, because nuclear weapons are unlikely to be used unless the military advantagrr from their use would be considerable. The one respect in which the use of nuclear weapons is not subject to the able to conventional weaponry is that Additional Protocol I of 1977 was understanding that any new rules which the Protocol introduced (as oppcl

it codified) would apply only to the use of conventiond (Pilloud, 1987, paras 1838-1862).46 That does not mean that the Protocol drc to a nuclear war. Many of the provisions of the Protocol, such as those yfrfoL principles of distinction and proportionality, codi$ existing rules of internatln{ are therefore applicable to all weapons. Only the innovative provisions of ttc such as those dealing with the natural environment, are inapplicable to the us d
existing rules which
weapons and they will continue to apply to the use of conventional armamerrr., conflict in which nuclear weapons are also being used. The reasoning of the Court inthe Nuclear Weapons case suggests that there aed stances in which nuclear weapons might lawfully be used but the Court's more equivocal. The Court concluded that:

It follows from the above-mentioned requirements [quoted above] that the thre*c nuclear weapons would generally be contrary to the rules of international law armed conflict, and in particular the principles and rules of humanitarian

rypEc** law;

rllu'

,, il

However, in view of the current state of international law, and of the elements of 6c rft disposal, the Court cannot conclude definitively whether the threat or use of rrb
46 See also the declarations made by the United Kingdom and United States on sign4 Protocol I and by other NATO States on ratification, Roberts and Guelff,2000, pp 499-512.

il5

THE LAw oF wAR (tNrEnNarroNAL HUMANrtenreu

rew)

8or

weapons would be lawfirl or unlawfirl in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.aT

The Court was evenly dividedas on this paragraph, which was adopted on the casting vote ofPresident Bedjaoui. The paragraph is not easy to understand and leaves the legal status of nuclear weapons uncertain. It was the subject of trenchant criticism both from those judges who considered that the Court should have given an unequivocal condemnation of any use of nuclear weaponsae and those who considered that the logic of the Court's reasoning pointed to a different conclusion.so Academic commentary has been similarly divided (eg, Lowe, 1996; Boisson de Chazournes and Sands, 1999).

VI. WHAT PROTECTION

DOES THE LAW AFFORD THE VICTIMS OF HOSTILITIES?

of some debate but international humanitarian law has for long identified three specific groups who require protection: prisoners of war, civilians, and the wounded, sick, and shipwrecked. Each
Quite how one defines the 'victims' of hostilities is a matter
requires separate consideration.

A.

PRISONERS OF WAR

The treatment of prisoners of war is the subject of a detailed regime in the Geneva POW Convention, 1949, and is one of the most developed areas of the laws of armed conflict. The general principle on which the convention is based is that a prisoner of war is neither a criminal nor a hostage but someone who has been detained following capture solely for

the purpose of preventing him from rejoining the enemy's armed forces. He is not a criminal, for his participation in hostilities is not unlawful, and he must not, therefore, be kept in a military or civil prison but should be detained in a POW camp. A POW may be subjected to disciplinary sanctions or put on trial for offences committed after he has been captured and may be tried for war crimes or for common crimes committed prior to capture. A rare example of the trial of a POW for a common crime committed before the hostilities in which he was taken prisoner was the recent trial in the United States of the hnamanian General Noriega on charges of drug trafficking. A POW is not a hostage rrtose treatment or release may be used as a bargaining counter. Reprisals against POWs ae strictly prohibitedst and they must be released and repatriated on the close of active hostilities, not kept to extract concessions from the enemy.52 POWs are held by the State into whose hands they have fallen, not the individual

o
4 e
,p

kgality of the Thrcat or

[Jse

of

Nuclear Weapons Adtisory Opinbn"

ICI Rrryrts 1996 p 226, para

105(2xE).

l:frre

There were seven votes in favour and seven votes against. Judge Aguilar Mawdsley had died shortly the hearings in the case and his successor had not been electedSee, eg, the Dissenting Opinions of Judges Shahabuddeen, Weeramantry, and Koroma. See the Dissenting Opinions of Vice-President Schwebel and |udge Hig#ns and the Separate Opinion of
13.

|fteGuillaume.

5r GCIII Article

s2 Article 118.

8oz

CHRISTOPHER GREENWOOD

commander or unit which has taken them prisoner. The detaining State is obligation not to ill-treat, or tolerate the ill-treatment of, POWs. It is therfu breach of the convention for a State to murder, torture, or abuse pOWs or b members of its forces or the civilian population to do so.s3 It is also forbidden POWs to insults and public curiosity. The physical ill-treatment of captured coalition personnel during the Kuwait conflict and the television programme in some of them were compelled to take part both involved violations of this Iraq but allegations that coalition States breached their obligations by permitting
footage of identifiable Iraqi POWs to be shown were made in both the l99l and conflicts (Rogers, 2004,pp 52-53). There were also serious violations ofthis

the conflict in the former Yugoslavia. In addition, there is evidence that POIf,s

Yugoslav conflict were forced to perform dangerous tasks, such as collecting bodb equipment under fire, which is also prohibited by the convention.s4 The duty not

POWs is an absolute one, not qualified by considerations of military necessity. ItuS unlawful to kill a POW even where he has been captured by a command6 unil behind enemy lines or a guerrilla group which has no facilities for keeping pri Similarly, while it is legitimate to question POWs, it is illegal to coerce them into questions, however desperate the detaining State's need for intelligence may be.s5 As well as being required not to ill-treat POWs, the detaining State has certain p(ft duties towards them. Thus, POWs must be removed from the combat zone and fromrr of danger at the earliest opportunity. Holding POWs for any substantial time at orE! military objective liable to attack is unlawful, whether or not it is part of a deliberate'hun shield'poliry.s6 The convention goes on to lay down a number of requirements in rdair to the conditions in which POWs may be held. The detaining State is not freed frorndE obligations merely because it transfers the POWs to the custody of one of its allies" Sufi transfer is lawful only if the allied State is also a party to the Convention and even 6er\f that ally fails to comply with the requirements of the Convention, the State which origin{ captured the POWs may be required to ensure that they are properly treated.si Duringfu Kuwait conflict, the United Kingdom set up a special team to monitor the treatmeil d POWs captured by British forces who were transferred to other coalition States. After the close of hostilities in the Second World War, thousands of German oi fapanese POWs were held for years by some of the allied powers, the USSR releasing fu last POWs only in 1958. To avoid a repetition of such events, Article ll8 of the Geff:re POW Convention, 1949, provides that:
Prisoners of War shall be released and repatriated without delay after the cessation of

actir

hostilities.

The fact that no formal peace treaty has been concluded does not, therefore, justify the

53 Article 13. See also the Essen Lynching case, I Law Reports of Tials of War Criminals p 88. 54 Article 52. POWs may volunteer for dangerous tasks. In the Falklands conflict, a group ofArgentinc POWs volunteered to clear a munitions store which was endangering British and Argentine personnel. Serreral of these POWs were killed or injured when a box of ammunition exploded. See (1982) 53 BYIL 523. ss Article 17. Under this provision, POWs are required to give only their names, ranks, dates of birth, and identification numbers. There is no ban on asking them about other matters and such interrogation is common but they may not be coerced into answering or penalized for refusing to do so. 56 Articles 19-20. 57 Article 12.

THE LAw oF wAR (rNrenNarroNAl HUMANIrenreN

rew)

8o3

retention of POWs, although Iran and Iraq did not begin large-scale repatriation of POWs captured during the Iran-Iraq War until September 1990, more than two years after the
cessation of active hostilities. Article 118 has, however, given rise to argument over the case

of POWs who do not wish to be repatriated. In the Korean conflict, North Korea and
China argued that Article 118 imposed a strict obligation to repatriate POWs, who, it was said, were unable to waive their right to repatriation. The UN forces in Korea, on the other hand, maintained that forcible repatriation was incompatible with the basic principles of the Convention and with the requirement to 'release and repatriate'. While this approach
is plainly to be preferred, it is open to abuse if there is no impartial machinery for ensuring that the POWs in question genuinely do not want to be repatriated. At the end of the

Kuwait conflict, the coalition States announced that they would not repatriate Iraqi POWs who did not wish to be returned to lraq. The International Committee of the Red Cross interviewed all POWs and, in the event, some 13,300 out of approximately 70,000, elected to remain in Saudi Arabia.

B. THE WOUNDED AND SICK


The First and Second Geneva Conventions contain detailed legal regimes for the treatment of the wounded, sick and shipwrecked. This regime may be summarized, in the language of the Red Cross Movement, as a duty to 'respect and protect', ie, a negative duty not to do harm and a positive obligation to take certain steps to assist the wounded, sich and shipwrecked. Thus, there is a duty to collect and care for enemy wounded. They must be given the same access to medical treatment as the State's own wounded and sick, priority between wounded persons being determined solely by considerations of medical need and

not by nationality, allegiance, or status.ss Medical transports, hospitals, and dressing stations used by the enemy's armed forces are not to be attacked (a protection extended to civilian medical facilities by the Fourth Convention and Additional Protocol I) unless they forfeit their protection in one of the ways set out in the convention. Even then, there is an obligation to issue a warning before attacking them, except in the case of medical aircraft. Such units should be marked with the protective emblems of the Geneva Conventions (the Red Cross or Red Crescent) which there is a strict obligation to respect.se Contrary to popular beliel these are not simply medical emblems which may be affixed to anything connected with the provision of medical services from a hospital ship to a school first-aid box. The use of the emblems is restricted to the International Committee of the Red Cross, the medical services of the armed forces, and other medical bodies (such as national Red Cross societies) expressty authorized by the military authorities to use the emblems. Medical personnel are also entitled to protection, so long as they are not used to commit, outside their humanitarian duties, acts harmful to the enemy. Medical personnel are entitled to carry arms for their own defence and that of the wounded in their care. Reprisals against the wounded, sick, shipwrecked, or members of medical units are prohibited.

sE GCI and II, Article 12.

59 The conventions also refer to the Red Lion and Sun, an emblem once used by Iran but now obsolete.

8o4

CHRISTOPHER GREENWOOD

C. CIVILIANS
We have already seen that the law on targeting contains a number of

principles desiped

protect the civilian population from the effects of combat. In addition, the Fourth Convention lays down detailed rules for the protection of two categories of civilias the power of an enemy State: civilians in the territory of an enemy State and the ci

population of occupied territory. Unlike the other Geneva Conventions, the Convention was an innovation in 1949, adopted because the Second World War highlighted the inadequate nature of existing rules for the protection of cMlians. The Fourth Convention was designed to protect the nationals of one belligerent found themselves in the power of an enemy belligerent. It does not apply to:
nationals of a neutral State who find themselves in the territory of a belligerent Statc--* while the State of which they are nationals has normal diplomatic representation in the St= in whose hands they are.6o

Neutral citizens in occupied territory, however, are covered by the Convention (PiG, 1958, pp 48-90). The result is that those British citizens who were in Kuwait when Inrl invaded in 1990 were protected by the Convention but those who found themsels trapped in Iraq itself were probably not covered, since the United Kingdom was noE il that stage, a party to the conflict between Iraq and Kuwait and continued to have dipb matic relations with lraq, although it may be questioned whether those relations co .ldlt said to have been'normal'. Civilians in the territory of an enemy State are entitled to protection from ill-treatmrt of any kind. They should normally be allowed to leave the territory but may be refosd permission to leave if their departure would be contrary to the national interests of ft State. They may be interned only if the security of the State in whose hands they makes this absolutely necessary.6l If they are interned, they are entitled to a standard d treatment broadly comparable with that required for POWs. In particular, like PCIIfi* they should not be held in a prison but in a separate camp, as they have neither bett accused nor convicted of any crime. The wholesale detention of members of ffi groups in the Yugoslav conflicts clearly violated the Fourth Convention, as did the coo& tions in which these detainees were held. In the Kuwait conflict, problems of a differt* kind arose in the case of Iraqi nationals held in the United Kingdom. The authoritT fu detaining them under United Kingdom law was the Immigration Act 1971 but 6ri entitlement to be treated in accordance with the Fourth Convention (or, in some Grser r POWs under the Third Convention) meant that some of the normal practices followedi respect of persons detained under the Immigration Act were not permissible in their ce (Hampson,l991).
Civilians in occupied territory are subject to a different body of rules, although theyae
also entitled to protection from ill-treatment of any kind and, if interned, must be hdd

ir

conditions which meet the standards of the Fourth Convention. The Convention prohibfu the deportation ofcivilians from the occupied territory to the territory ofthe occupyiq State or to any other State, irrespective of motive.62 The civilian population must nd bc subjected to reprisals or collective punishments63 and members of that population m7
oo GCIV, erticle +(2). 63 Article 33.

6l GCry

Article +2

62 GCIV Article 49(l).

THE LAw oF wAR

(rNtrnNetroNAl HuMArvtrenreN tew)

8os

only be sentenced after a properly conducted trial (although internment without trial is permitted). These provisions of the Fourth Convention form part of a wider body of rules (many of them derived from the Hague Regulations, 1907, but today forming Part of customary international law) dealing with occupied territory. Space does not permit a detailed analysis of these rules, which have been the subject of much controversy, particularly in relation to Israel's occupation ofArab territories since 1967 (see Playfair, 1992) and, latterly, the occupation of Iraq following the conflict of 2003, Five features of the law of belligerent
occupation should, however, be noted. First, the law ofbelligerent occupation is not dependent on the precise legal status of territory prior to its occupation but applies whenever territory is in fact seized by the armed forces of one State during a conflict with another, even where the State seizing the territory asserts that it has a better claim to the territory in question than the State which it has ousted. Thus, Israel's denial that the West Bank and Gaza Strip were subject to the law ofbelligerent occupation on the ground that Jordan and Egypt (respectively)

had no valid claim to those territories prior to the 1967 conflict has been universally rejected. Similarly, most States treated Argentina's ten-week presence on the Falkland Islands in 1982 as a case of occupation irrespective of whether they sympathized with Argentina's claim to title over the islands. This principle has not, however, always been consistently applied by the international community; thus, Turkey's military presence in northern Cyprus, which results from the 1974 conflict between the two States, is not always characterized as a case of occupation. Secondly, no attempt by an occupying State to annex or change the status ofoccupied territory affects the application ofthe Fourth Convention or the other rules on belligerent occupation. Those rules thus continued to apply in Kuwait, notwithstanding Iraq's purported annexation of the Emirate shortly after the invasion.e A more difficult case is that of the West Bank and Gaza Strip since Israel handed control of parts of them to the Palestine Authority after 1994. The Palestine Authority plainly cannot be seen as a belligerent occupant but the territories probably remain occupied to the efient that Israel continues to exercise control over them. Even after Israel's withdrawal from the Gaza Strip in 2005, it has been argued that Gaza remains occupied to the extent that Israel continues to exercise control over the borders, ports and air space. Thirdly, Article 43 of the Hague Regulations requires the occupying PoIMer, 'unless absolutely prevented', to respect the laws and customs in force in the territory at the @rlmencement of the occupation. While this formula still allows the occupying power a very broad measure of discretion, it prohibits wholesale change of the laws already in force unless those laws are themselves flagrantly contrary to international law (as was the case, for example, with Nazi legislation in the territories occupied by the allies from the
start of 1945). Fourthly, the Hague regulations embody a complicated series of rules, which now have the status of customary international law, regarding the treatment of property in occupied trritory. While public property generally passes to the occupant, either absolutely or by way of a right of usufruct (literally a right to use the fruis of the property without

SC Res frl2"

670,.d

671The Security Council has takm tic sare pcition with regard to Israel's

ansation of Ea* Ierusaltn aod the C,olan Heights

8o6

CHRISTOPHER GREENWOOD

consuming the property itself), the right to seize or requisition private property b limited.6s Non-military private property may be requisitioned only for the needs

army of occupation and it is unlawful for an occupant to strip the property of territory for the benefit of the occupant's own people or economy. The history d twentieth century suggests this rule has been honoured more in the breach 'k
observance.

Finally, it is increasingly important to bear in mind that the legal regime particular case of occupation may be affected by decisions of the UN Security Decisions of the Council taken under its powers in Chapter VII of the Charter are on all member states of the UN (today all states in the world) if they are expressod mandatory terms. The Council has used that power to authorize the States which Iraq in 2003 to take actions which, in some respects, went beyond the normal lr belligerent occupation.66

VII. HOW MUCH IF ANY

OF THIS LAW APPLIES

tTT

CIVIL WAR?
The rules discussed so far apply expressly only to international armed conflic6 yrt I majority of the war casualties since 1945 have occurred in civil wars and other rr international armed conflicts. These conflicts are subject to a far more limited regimcd treaty provisions (see Moir,2002). Common Article 3 of the Geneva Conventions, urfrl applies to any case of 'armed conflict not of an international character' occurring in fu territory of one of the States party to the Conventions, requires that the parties to such r internal conflict shall be required to apply'as a minimum'the following provisions:

(1) Persons taking no part in the hostilities, including members of armed forces vrb have laid down their arms and those placed hors de combat by sickness, 1/6rrndq.
detention, or any other cause, shall in all circumstances be treated humanely, wiil out any adverse distinction founded on race, colour, religion or faith, ser birth r wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and any place whatsoever with respect to the above-mentioned persons:

in

(a) violence to life and person, in particular murder of all kinds, mutilation, crud
treatment, and torture; (b) taking ofhostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

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

(2) The wounded and sick shall be collected and cared for.
6s Hague Regulations, Articles 52 and 53. 6 See, in particular, SC Res 1483 (22May2003), l5ll (16 October 2003), and 1546 (8 June 2004). Fora discussion of the occupation of lraq, see Kaikobad, 2005.

THE LAw oF wAR

(rNrunNetroNAl HUMANIrenreN rew)

8o7

in miniature', are almost skeletal when compared with the rules applicable to international conflicts. Thus, the single, terse sentence in Article 3(2) is meant to act as the equivalent of two entire conventions (the First and Second Geneva Conventions) in dealing with the sick and wounded. Although Common Article 3 goes on to encourage the parties to an internal conflict to conclude special agreements to supplement the provisions of the Article, such agreements
These provisions, which have been described as 'a convention
are very rare.

Additional Protocol II to the Geneva Conventions set out to expand the provisions applicable to non-international conflicts. Its l5 substantive Articles contain more detailed provisions on fundamental guarantees, treatment of the wounded and sick, and the protection of the civilian population. However, it applies only to those States which have become parties to it (which excludes many which have serious armed conflicts occurring on their territory) and even then its field of application is more restricted than that of Common Article 3. Whereas Common Article 3 applies to any armed conflict occurring within a State, Article 1(l) of the Protocol provides that the Protocol shall apply only to
armed conflicts which:
. . . take place within the territory of [a State party to the Protocol] 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.

Article 1(2) then adds:


This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being
armed conflicts. Useful as it is, therefore, in fleshing out the bare bones of Common Article 3, Additional Protocol II has a very restricted field of application, confined, in effect to civil wars in which both sides control tracts of territory. It was, however, applied in the El Salvador conflict, in which the degree ofterritorial control exercised by the rebels fell far short of that enjoyed by, for example, the Biafrans in the Nigerian civil war of 1967-70. In effect, therefore, there is a scale ofinternal conflicts and disturbances, with different bodies of law becoming applicable the higher up the scale one moves:

(1) at the lowest end of the scale come internal disturbances and acts of terrorism
which do not amount to an armed conflict (such as the fighting in Northern Ireland before the cease-fire there). Such disturbances are not subject to the laws of armed conflict at all, although the State (but not the rebels) will be subject to the provisions of any human rights treaties to which the State is a party;

(2)

once the fighting reaches the level at which it is described as an armed conflict, both

government and rebel forces are bound by Common Article 3 and the government will continue to be bound by any applicable human rights treaties;

(3)

if

the rebels acquire sufficient control of territory to meet the requirements of Additional Protocol II, the Protocol and Common Article 3 will apply to both sides in the conflict. Again, the government will continue to be bound by applicable human rights treaties; and

8o8

CHRISTOPHER GREENWOOD finally, if another State intervenes on either side of the conflict, the conffitt international and the full body of the Geneva Conventions and, if the cerned are parties, Additional Protocol I become applicable at least b involving the intervening State.

()

The problem is that it will frequently be very difficult to determine which poimc scale has been reached and the State involved is likely to take a different viry d question from that taken by outsiders. There may also be cases in which a conflic

both internal and international elements. The International Criminal Tiibrrnal fu Former Yugoslavia has held, eg, that the fighting in Bosnia-Herzegoina inwltd an international conflict (between Bosnia-Herzegovina and the Federal RrprE Yugoslavia) and a non-international conflict between the governm.rr, oi UrdH Herzegovina and the Bosnian Serb forces.67 Similarly, while the hostilities btm t
United States and North Vietnam were undoubtedly an international conflict,

in parallel with a conflict between South Vietnam and the Viet Cong which *.e
difficult to characterize.
Developments

they;-if rr-

*ir'

in customary international humanitarian law during the l9flb h ameliorated this problem. In its decision in Tadi{8 and later cases, the Interneid Criminal Tribunal for the Former Yugoslavia has identified a series of custory h norms applicable in non-international armed conflicts. In doing so it has at times rhr somewhat creative approach to the law and some of its conclusions are not easf b irfr by reference to the criteria for the determination of rules of customary internatix{ lr
(Greeenwood,1996). Nevertheless, these decisions have to some extent been reflsdL the Statute of the International Criminal Court6e and elsewhere (see Moir,2fi)2).

VIII.

HO\M CAN THE LAW BE ENFORCED?

c enforaffi machinery of international law in general is comparatively weak and that it lacks rned the features found in national law. There is no international police force and no ncrd of courts with compulsory jurisdiction. Moreover, it is probably true to say that there 3r area of international law in which the deficiencies of enforcement are so apparent lr ft laws of armed conflict. That is not to say, however, that there are no means of sec,-i
The most difficult question to answer about the laws of armed conflict is how St*cr

be brought to comply with them. There can be no denying that the

compliance with those laws.

In accordance with normal principles of international law (considered in Chatrerr 15 and 16) a State whose forces violate the laws of armed conflict is responsible for rh damage caused thereby and may be held liable to compensate States and individrab rb have suffered loss as a result. Although this principle was stated in Article 3 of 116Convention No M 1907, until recently it was rarely applied in practice. Neverthdcse" a was applied by the Security Council in the case of Iraq in 1991, the Council confrm-g that Iraq was liable to compensate the victims of its violations of international la*
67 Prosecutorv Tadi( (lurisdiction) (1995),105 ILR 419 at 486-495; see also the later phase ofthis (199e) 38 ILM 1s18. 68 Ibid. 0s Article 8(2)(e).

cerca

THE LAw oF wAR

(rNtrnNetroNAl HUMANrrenreu r,ew)

8o9

including breaches of the laws of armed conflict, arising out of the invasion of Kuwait.7o The Council established a Compensation Commission to apply this principle and a fund, financed by a lely on Iraqi oil sales, to ensure that the Commission's awards were paid. Moreover, following the conclusion of the 1998-2002 conflict between Ethiopia and Eritrea, the two States concluded an agreement creating a Commission which was empowered to determine, by binding arbitration, claims for violations of international humanitarian law. That Commission has given a number of awards concerning, inter alia, ill-treatment of prisoners of war and civilians.Tl A better known means of enforcement is the prosecution of individuals responsible for violations of the laws of armed conflict as war criminals. Such prosecutions have a long history although the overwhelming majority which have taken place to date arose out of the events of the Second World War. Although the best known, the Nuremberg and Tokyo trials, were confined to the senior members of the German and |apanese governments and high commands, over 2,000 trials took place in all and the defendants ranged from the most senior officers and officials to private soldiers and civilians.T2 An individual who violates any of the rules of the law of armed conflict is guilty of a war crime if he has the necessary guilty knowledge. Some war crimes, however, are subject to special provisions. Thus, violations of the more important provisions of the Geneva Conventions and Additional Protocol I are known as 'grave breaches' ofthose treaties.T3 Under the Conventions, any State has the jurisdiction to try someone accused of a grave breach, irrespective of where the crime was committed and whether the State exercising jurisdiction was a party to the armed conflict in which it occurred. All States party to the Conventions have a duty to search for persons alleged to have committed grave breaches and to bring them to justice. furisdiction over other types of war crime is governed by customary international law but is also universal, in that any State may exercise jurisdiction. The primary responsibility for the prosecution of grave breaches and other war crimes rests upon States and most States have provision in their domestic criminal law for

the prosecution of such

offences.Ta While many States have frequently been less than scrupulous in their observance of the duty to prosecute such offences when committed by their own armed forces, the Army Prosecuting Authority announced in luly 2005 that a number of British soldiers would be charged with war crimes in respect of the death of

in Iraq in 2003. An Iraqi Special Criminal Court is to try Saddam Hussein and other senior political and military figures on charges likely to include grave breaches
a detainee

and war crimes. In addition, there has been

growing trend towards international criminal proceedings.Ts

During the

1990s,

the United Nations Security Council has established international

70 SC Res 674 and 687. 7r See, eg, the Partial Awards on Prisoners of War (2003) 42 ILM 1056 (Ethiopia's Ctaim 4) and 1083 (Eritrea's Claim 17), and the further Partial Awards at (2004) 43 lLM 1249 and 1275. 72 See 15 Law Reports of Trials of War Criminals, published for the United Nations War Crimes Commission. 73 See GCI Article 50, GCII Article 51, GCIII Article 130, GCIVArticle l47,and Additional Protocol I

Article 85.
7a For the position in the UK, see the Geneva Conventions Act f957 (as amended) and the International Criminal Court Act 2001. 75 See Cassese, Ch 24 above.

8ro

CHRISTOPHER GREENWOOD

tribunals with jurisdiction to try (inter alia) charges of war crimes comnrirmil former Yugoslavia and Rwanda and a tribunal, which is established under i
law and the law of Sierra Leone, to try offences committed during the brual cirl sierra Leone, including violations of the laws of war. The International criminl established by the 1998 Rome Statute, has jurisdiction over war crimes (whether

ted in international or non-international conflicts) and grave 6.sa6hes ef rt?


Conventions.T6

One of the most controversial features of the law of war crimes is that the 6C defendant acted under superior orders is not a defence (although it may be a factor in mitigating sentence). This principle was not fully established until 6c World War trials, when it was expressly written into the Charter of the Military Tribunal at Nuremberg. Prior to that the law had been uncertain, both fu

and American manuals of military law stating, until 1944, that a serviceman commit a war crime if he merely carried out orders. The approach adopted at has been criticized on the ground that it places the serviceman in an impossible if he obeys the order given, he commits a war crime, if he disobeys he is liable to [ri ment for a breach of military discipline: In reality, however, the military law of tte Kingdom (and many other States) not only does not require a serviceman to carry illegal order, it positively forbids him to do so. Moreover, if superior orders were a defence, the sanction of war crimes prosecutions would be eroded almost to vri point in many cases-in Nazi Germany for example, almost every violation of the armed conflict (such as the shooting of hostages or captured allied commandc d operation of the concentration camps) was the implementation of a policy or&dJ
the very highest level.

Liability for war crimes thus goes right through the military hierarchy. In the calf the notorious 'Commando Order' which instructed the German armed forces to rth quarter to allied commandos and to execute those who were captured, tribnnaL, cp victed German soldiers ranging from Field Marshal Keitel, who had issued the or&L Hitler's name, to private soldiers who manned firing squads. The commander who gfor an order to commit acts contrary to the laws of armed conflict will therefore b gufrtd a war crime and is not absolved because he was not present when that order was cail
out, or because he was himself implementing an order received from a superior Allth in the chain of command who decided upon and carried out the order are poterift liable, although in one leading case a United States military tribunal acquitted ecGerman staff officers who had issued illegal orders on the ground that they had had r command authority of their own but were merely transmitting orders given bf t commanders on whose staffs they served.77 In addition, a commander has a d,ny r ensure that forces under his command behave in accordance with the laws of ard conflict and may be convicted of a war crime if he fails to restrain them from unlrrfl
behaviour.Ts

generally Ch 24 above. States v List,8 Law Reports of Trials d War Criminalg p 34 (trials of Generals Foertsch and r Geitner); see also vol 15, p 76. 78 United Staus v Yamashita. 4 Lau Reports of Trials of War Criminals, p 1 . See also Additional Promd
See

76

77 United

l,

Article 86.

THE LAw oF wAR (rNrnnNeuoNAL HUMANrrenreN

lew)

8u

defendant acted out of military necessity. Many rules of the laws of armed conflict, such as that prohibiting the use of methods and means of warfare likely to cause unnecessary suffering, themselves contain an allowance for military necessity. To say, in such a case, that the action concerned was militarily necessary is not so much a defence as an argument that the action was permitted by the rule of law in question. Where, however, a rule is cast in absolute terms, such as the rules prohibiting the deliberate killing of prisoners or the

It is not a defence to a war crimes charge to argue that the

shipwrecked considerations of military necessity do not justift a departure from that rule. In one Second World War case, the commander of a German submarine was convicted of shooting the survivors of a merchant ship sunk by the submarine. His defence that this was necessary to cover his track and prevent allied aircraft from detecting his submarine was rejected by the fudge Advocate in directing the Military
Court.Te

It

is often said that war crimes trials are a form of victors' justice and that those on the

winning side are never charged. It is true that there are very few cases in which a State has described the charges it has brought against one of its own servicemen as a war crime. However, that is because a State will invariably have jurisdiction to try its own servicemen for crimes under the ordinary criminal law of that State, or under its military law. Only when a State wishes to prosecute a foreign national will it normally be necessary to invoke the law of war crimes in order to establish jurisdiction. Thus, if a State prosecutes one of its own soldiers for the killing of POWs, the case is likely to be one of murder,8o whereas if that State prosecutes an enemy serviceman in respect of similar conduct, the charge would
be a grave breach ofthe Third Geneva Convention.8l

In principle, therefore, the prospect that he might be prosecuted anywhere in the world in respect of a violation of the laws of armed conflict should act as a serious deterrent to the serviceman. In practice, however, prosecutions for war crimes have been rare until very recently and there have been comparatively few cases in which a State has charged its own servicemen with crimes under national law in respect of
conduct which would also have constituted a war crime. Although the possibility of holding war crimes trials at the end of the Kuwait conflict was considered, nothing came of it other than a few trials held in Kuwait. It must, therefore, be open to question how far the law of war crimes operates as an effective inducement to comply with the laws of armed conflict. A less orthodox method of enforcing the laws of armed conflict has traditionally been
recourse to belligerent reprisals (Kalshoven, l97l). A belligerent reprisal is an act ufiich would normally be a violation of the laws of armed conflict but which becomes lawful because it is taken in response to a prior breach of the laws of armed conflict by an enemy. Reprisals-or the threat of reprisals-have sometimes proved effeaive in ensuring compliance with the law but they have a bad name because all too often they have led
Case of Eck('the PeJeus case'), I Law Reports of Trials of War Criminals,p l80 This was the case in the My Lai trials in the United States during the vl*nam War. See however the recent decision (referred to above) by the United Kingdom Army Prosecuting Anhority to bring war crimes charges against British soldiers in respect of a death in Iraq in 2003. 8l For an explanation of the war crimes jurisdiction of Briti$ miliarf courrs see Rogers, 1990. The War Crimes Act 199I has now made provision for the trial before civilian ourts in the IJnited Kingdom of charges of murder and manslaughter contrary to the laws of war arisiry oot ofthe Second World War.

79

8tz

CHRISTOPHER GREENWOOD

counter-reprisals. Today, the laws of armed conflic most reprisals. The wounded, sick, shipwrecked, POWs, and civilians in enemf or in occupied territory may not be the object of reprisals according to the Conventions.82 Additional Protocol I also prohibits reprisals against the enemyt d population, civilian objects, and a number of other items.83 These provisions, controversial and are not generally regarded as part ofcustomary international larreprisals may lawfully be taken, they must be proportionate to the original violarin be taken as a last resort (following a warning to the enemy to put an end to his of the law) in order to put an end to violations by the other party, not as a form of qg For that reason, the decision to take reprisals is always made at the highest command and reprisals should not be continued once the enemy's violations ofthh
have ceased.

to a vicious spiral of

In many respects the most important, if the least dramatic, means of enilt compliance with the laws of armed conflict is scrutiny by and pressure from rtEf, parties. A State engaged in an armed conflict will often be heavily dependent q: the goodwill of neutral States, which may well be put in jeopardy by allegations of mu& ties. Such allegations can also have a major effect upon public opinion in the bdlt;d States themselves. Pressure of this kind operates, in a sense, outside the law itsef, sLG the law makes no express provision for it. The Geneva Conventions and Additld Protocol I do, however, provide for certain formal mechanisms to monitor complim
with the law.
Under the Conventions and the Protocol, a State which becomes engaged in an ard conflict is encouraged to appoint another State as a'protecting power' to act on behaffid its nationals. The protecting power has rights of access to POW and detention camps,rh right to have its representatives present at trials of POWs and civilians held by the ererrtt State, and to make representations to the enemy State about compliance with the laws d armed conflict.8a Although the protecting power system worked well in some areas dming the Second World War, it has been virtually unused since 1945.8s In many confliB one side at least was unwilling to accept the other's nominee as a protecting power atd allow that power access to territory under its control. Aithough Article 5 of the Add' itional Protocol attempted to overcome this problem by providing that the parties to e conflict have a duty to nominate protecting powers without delay it still leaves a Sarc e discretion whether or not to accept the adversary's nomination of a protecting porru and thus leaves the entire system dependent upon the consent of the two sides. rls conflicts like the Vietnam and Iran-Iraq wars have shown, such consent is rardT forthcoming. The comparative failure of the protecting power system has placed a very heavy burden on the International Committee of the Red Cross. Under the Conventions and the Protocol, where there is no protecting power, the parties to the conflict are required to accept an

82 GCI Article 46, GCII Article 47, GCIII Article 13, and GCIV Article 33. See also Additional Protocol I,

Article 20.
83

AdditionalProtocoll,Articles5l(6),52(1),53(c),5a(a),55(2),and56(a).
as

8a See GCI, II, and III, Article 10 and GCIV Article 1 1. 8s A rare exception was the Falklands conflict where Switzerland acted Brazil for Argentina.

protecting power for the UK and

THE LAw oF wAR (INrrnNerroNAL HUMANIrenreN

rew)

8r3

offer by the ICRC (or another competent humanitarian organization) to assume the humanitarian functions of the protecting power.86 Nevertheless, in practice the ICRC's access to prisoners and to occupied territories in such cases has depended upon its ability to secure the acceptance of the State concerned. In the Kuwait conflict, for example, Iraq
consistently refused the ICRC access to Kuwait or to places where POWs or civilians were being held.87 Where the ICRC is able to secure access, it works on the basis of strict criteria. For example, it insists on unrestricted access to prisoners and to all parts of POW camps and detention centres and upon private interviews with prisoners. The ICRC reports on these visits but its reports are not made public. This confidentiality has helped to secure the ICRC access in many cases where it would otherwise have been refused but it means that the ICRC cannot be used to mobilize public opinion in putting pressure upon a recalcitrant State. The action which the ICRC can take when it detects violations of the law is usually limited to private persuasion, although it may make a general appeal to the parties to comply with the law.88 Within these limits, the ICRC has often been remarkably successful and conditions where it is denied access have almost invariably been worse than those in places it has been allowed to visit. In recent years the United Nations has become increasingly involved in attempting to secure compliance with the laws of armed conflict. During the Iran-Iraq War it adopted a number of resolutions on the subject and its reports (which unlike those of the ICRC are published) on conditions in POW camps seem to have led to some improvements. More recently, in the Yugoslavia conflict, the Security Council has taken a public position regarding conditions in detention camps and called for the ICRC to be given full access

to them.
Finally, Article 90 of the First Additional Protocol provides for the establishment of an International Fact Finding Commission to inquire into alleged violations of the Geneva Conventions and Protocols. While this Commission's jurisdiction is limited and it has no power to impose any kind of penalry the publicity which its findings would have may prove a potent weapon.

REFERENCES
BorssoN de CHazounurs, L and Saxos, P (eds) (1999), International Law, the International Court of Justice and Nuclear
Weapons (Cambridge: Cambridge UniChallenges Ahead (Dordrecht: Martinus

Nijhoff). DrNsrrrN,

Y (2004),

The Condun

of

Hos-

tilities under the Law of Intemational


Armed Conflict (Cambridge: Gmbridge
University Press).

versity Press).

Botrr,

M, PenrscH K, and Sorr, W (1982), New Rules for Victims of Armed Conflicts (The Hague: Martinus Nijhotr).

GnrENwooo,

C (1987),'The Concept of
36

War

in Modern lnternationa] lavy',

DerrsssN,

A and TeNla, G (eds) (1991), Humanitarian Law of Armed Conflict:

rcLQ283.

86 See GCI, II, and III, Article 10, and GCIV Article 11. 87 ICRC, The Gulf 1990-91, p to. 88 This was done on several occasions during the Iran-Iraq War. See also 'Action by the ICRC in the event ofBreachesof InternationalHumanitarianl^aw (1981) IntRrrliewoftfuRdCros5pl.