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.
This chapter introduces the study of the law of armed conflict by considering the nature and legality of war. The treatment of Napoleon served as a precedent for the policy adopted by the principal Allied and Associated Powers at the end of World War I when considering the treatment to be accorded to those responsible as authors of that war. A more definite attempt to render the war illegal is to be found in the Covenant of the League of Nations. The United States was not a member of the League, but by virtue of being among the victors in 1918 was an important power whose views could not be ignored. In 1946 the General Assembly at its first session adopted a resolution affirming 'the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal'.
By the Middle Ages the power of the Church was such that it was able to forbid Christian knights from using certain weapons as hateful to God. In fact, the feudal knights were aware of what they knew as 'the law of chivalry'. The 'law of chivalry' was a customary code of chivalrous conduct that controlled the knight's affairs, which was enforced by arbitrators specially appointed or, in England and France, by Courts of Chivalry. Contrary to the Geneva Law is the law concerning means and methods of conducting actual military operations in armed conflict. This is known as Hague Law, although it had its origin in a conference of fifteen European states called in Brussels at the invitation of Czar Alexander II of Russia. Another instrument that seems to have been applied as expressing accepted law, even though it never received a single ratification, is the Declaration of London.
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.
Traditionally, international law was divided into the law of war and the law of peace, with no intermediate stage between. When hostilities began, usually following a declaration of war, and non-parties to the conflict were held by the belligerents to be subject to the duties of, and they claimed the rights pertaining to, neutrals, war was recognised and the law of war came into operation. As with the situation under customary law, it is irrelevant whether the conflict is in accordance with the obligations of Hague Convention III, the Pact of Paris or the Charter of the United Nations. Even if the conflict does not amount to war in the legal sense of that term, there is nothing in international law, other than human rights conventions, preventing a country imposing restrictions upon the freedom of residents possessing adverse-party nationality.
The relations between a belligerent government and the adverse party's nationals are regulated partly by international and partly by national law. Civilians in the adverse party's territory are treated broadly speaking in accordance with the provisions of the national law, and while their freedom of movement may be restricted their treatment overall must be in accordance with Geneva Convention IV. If the capitulation relates to the surrender of an inhabited place, it may contain stipulations concerning the treatment of the civilian population. Conditions in a capitulation should relate only to the immediate purpose of effecting the surrender and not contain terms which would forbid the surrendered personnel from carrying arms in the future, for that is a political and not a military issue. Passports may be granted by a commander on his own authority or in accordance with his own military law.
In ancient times, as evidenced by the Laws of Manu, the Old Testament or the writings of Kautilya or San Tzu, there was no attempt to identify those who were entitled to be treated as combatants. It is only with the writers of the nineteenth century that either a clear definition of the rights of soldiers or the first use of the term 'combatants' is found. Irregular forces and resistance movements are protected only so long as they satisfy the normal requirements for recognition as combatants, in which case they are entitled if captured to be treated as prisoners of war. Until the adoption of Protocol I no attempt was made to discriminate among the members of an armed force on the basis of their nationality or the motives which lead them to join that force, whether those motives were ideological or mercenary.
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.