It has been accepted since antiquity that some restraint should be observed during armed conflict. This book examines the apparent dichotomy and introduces any study of the law of armed conflict by considering the nature and legality of war. The purpose of what is known as the law of armed conflict or, more commonly, the law of war is to reduce the horrors inherent therein to the greatest extent possible, bearing in mind the political purpose for which the war is fought, namely to achieve one's policies over one's enemies. The discussion on the history and sources of the law of armed conflict pays most attention to warfare on land because that is the region for which most agreements have been drawn up, although attention has been accorded to both aerial and naval warfare where it has been considered necessary. Traditionally, international law was divided into the law of war and the law of peace, with no intermediate stage between. Although diplomatic relations between belligerents are normally severed once a conflict has commenced, there remain a number of issues, not all of which are concerned with their inter-belligerent relations, which require them to remain in contact. War crimes are violations of the and customs of the law of armed conflict and are punishable whether committed by combatants or civilians, including the nationals of neutral states. The book also talks about the rights and duties of the Occupying Power, civil defence, branches of international law and prisoners of war.
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.
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.
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 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'.
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 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.
One of the oldest rules of the law of war provides for the protection of the civilian noncombatant population and forbids making civilians the direct object of attack. The Geneva Convention IV applies only to civilians in the hands of or under the physical control of an adverse party or an Occupying Power. Those in their own territory are protected only by the general rules limiting warlike acts and methods of combat. As with other protected persons, civilians in enemy hands, whether in national or occupied territory, are entitled to respect for their persons, honour, family rights, religious convictions and practices, manners and customs. When imposing punishment it must be remembered that non-national civilians owe no allegiance to the Detaining Power, which nevertheless retains the right to punish offences against its security.
In peacetime, when diplomatic relations are broken off between two countries, or when one is not represented in the territory of the other, they should follow some practice for representations. The normal practice is for the unrepresented one to nominate a third state acceptable to the recipient to represent its interests and protect its nationals in the recipient's territory. Each of the 1949 Conventions contains specific articles relating to the powers and functions of the Protecting Power, while Protocol I, 1977, has greatly improved the machinery for the appointment of a Protecting Power and increased its functions. Information concerning protected persons in the hands of an adverse party is transmitted to the state on whom they depend through the Protecting Power and the Central Prisoners of War or Central Information Agency. According to the Civilians Convention the Protecting Power is instrumental in protecting civilians, especially those in occupied territory.