Search results
A military aircraft would be one 'operated by commissioned units of the armed forces of a state having the military marks of that state commanded by a member of the armed forces, and manned by a crew subject to regular armed forces discipline'. Military aircraft has the right to fly over international waters and to use such flights for surveillance or photographing another state's territory, even including its military installations. Military aircraft brought down by a neutral state or which land in neutral territory should be detained by the neutral until the end of the conflict and then returned to their home state. Personnel on board such aircraft should be interned until the cessation of hostilities. The general rules regarding the use of weapons forbidding those which cause unnecessary suffering apply in air warfare.
The practice of distinguishing between those wounded or sick in land and sea warfare resulted in the adoption of distinct Conventions at Geneva in 1949, but Protocol I, 1977, deals with the wounded, sick and shipwrecked collectively. For other prisoners of war, the Conventions relating to the care of the wounded, sick and shipwrecked are under the scrutiny of the Protecting Power and do not detract from the general humanitarian activities of the International Committee of the Red Cross (ICRC). In a land engagement, agreement may be reached between opposing commanders for the exchange, removal and transport of the wounded in the field. Whenever possible, similar arrangements should be made for the removal of the wounded and sick by land or sea from any besieged or encircled area and for the passage of medical personnel or chaplains proceeding to such an area.
The concept of war crimes, with trial and condemnation of those committing them, is not new. From the time of the 'classical' fathers until the end of the nineteenth century there is little to comment upon with regard to the law concerned with war crimes. This was until the promulgation of the Lieber Code in 1863 by US President Abraham Lincoln. While international law permits national tribunals to try war criminals, these tribunals are established under national law according to the jurisdictional limits and procedure established by that law, although the definition of war crimes is usually that prescribed by international law. Many of the crimes described in the London Charter as war crimes or crimes against humanity are synonymous with those named as grave breaches in the Geneva Conventions and Protocol I.
A non-international conflict has traditionally been one in which the governmental authorities of a state are opposed by groups within that state seeking to overthrow those authorities by force of arms. In accordance with the fundamental principle of customary international law concerning the independence of a sovereign authority, this type of conflict has traditionally been regarded as falling outside the ambit of international law. Apart from Article 3, common to the 1949 Conventions, the first major attempt to introduce international legal control of non-international conflicts by way of a statement of black-letter law is Protocol II, 1977, relating to the protection of victims of non-international conflicts. In non-international armed conflicts, as in those of an international character, civilians are to be protected against the dangers arising from the conflict.
The rules and principles are applicable regardless of the legality or justness of the conflict, and even if operations are undertaken by way of punitive or police action in the name of the United Nations. The humanitarian principles that operate during armed conflict are to be found in customs originally based on rules of chivalry as between the feudal orders of knighthood. To a great extent these humanitarian principles are to be found in Article 3 common to the Geneva Conventions of 1949. Broadly speaking, they amount to the basic and minimum conditions underlying the rule of law as understood in modern society. Whether the Hague and Geneva Conventions are regarded as codificatory of customary or creative of new law, they are not and do not purport to be exhaustive.
The overriding purpose of the United Nations is the preservation of peace. When states have agreed to second forces to the United Nations either for enforcement or for peacekeeping activities, they do so through agreements which specify the administrative, financial and disciplinary arrangements that are to apply, although supreme authority rests with the Secretary General. While the decisions of the Security Council are legally binding upon all members, it must be borne in mind that the Council is made up of the representatives of the member states, who act according to instructions received from their governments. Even with North Atlantic Treaty Organisation (NATO), the problems which confront the United Nations, including command, discipline, rules of engagement and the like, are of equal significance. In both the former Yugoslavia, especially in relation to Kosovo, and in Afghanistan, NATO took over the military operations against the 'terrorists'.
Traditionally, for an armed conflict to warrant regulation by the international law of armed conflict, it was necessary for the situation to amount to a war, in other words, a contention between states through the medium of their armed forces. While the full panoply of the international law of armed conflict does not apply to non-international conflicts, to some extent non-international conflicts have come under the aegis of international law since 1977, with the adoption of Article 1 (4) of Protocol I. The first and only international agreement exclusively regulating the conduct of the parties in a non-international conflict is Protocol II additional to the 1949 Geneva Conventions. As to non-parties to the Conventions, in so far as the Conventions embody rules of customary law they will apply in any international armed conflict, as will all other rules of the customary law of armed conflict.
Like other branches of international law, the law of armed conflict has no permanent means to secure its observance. Apart from the procedures established regarding prevention and supervision of breaches of the law, the surest guarantee of observance is compliance by a belligerent, even though reprisals or other retaliatory measures, such as the taking of hostages, are forbidden. Under the Geneva Conventions no party is able to absolve itself from liability, criminal or otherwise, for any grave breach of those Conventions. Protocol I introduced a new method of seeking to avoid breaches of the law or dealing with them when they occur. The greatest innovation effected by the Protocol in relation to supervision of its execution is the establishment of a permanent International Fact-Finding Commission which came into existence in 1992.
In former times there was a tendency for a belligerent occupying enemy territory to annex that territory and treat it as part of his own. Territory is occupied only when it is actually under the control and administration of an Occupant and extends only to those areas in which it is actually able to exercise such control. The Occupying Power may extend his own law to the territory only if it is annexed and the transfer of sovereignty recognised. The relations between the Occupying Power and the population are regulated primarily by the terms of the Civilians Convention, which come into force from the time the area is actually placed under the Occupant's authority. The Occupying Power's competence to amend either the local civil or the penal law is not unlimited, and it should not introduce any regulation that suspends, extinguishes or renders unenforceable the legal rights of enemy subjects.
The international law of armed conflict grants rights and imposes duties upon the non-participants, which are known as neutrals and the relevant legal regime as neutrality. Occasionally it is conceded that in certain circumstances a neutral may offer assistance to one of the belligerents on the basis of benevolent neutrality. A neutral has the right to permit belligerent troops to take refuge in its territory, but must intern them and prevent them from taking any further part in the conflict. If the neutral is a party to the Prisoners of War Convention, their treatment, if interned, must at least equal that required for prisoners of war. Subject to any regulations imposed by their government, neutral nationals may continue trading with either or both belligerents, but the articles involved are liable to seizure as prize.