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.
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.
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.
Problems have arisen since the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). If it is suggested that UNCLOS constitutes lex generalis it must be indicated that it cannot invalidate any rights arising under lex specialis such as the law of armed conflict, unless there is incontrovertible evidence in the text that it was intended to override such lex specialis. When deciding whether a ship was trading with an enemy port, or whether its cargo was intended for an adverse party, Prize Courts developed the doctrines of continuous voyage and ultimate destination. In maritime warfare only properly authorised combatants are permitted to participate in warlike activities. By Hague Convention VI enemy merchant ships in ports of the adverse party at the outbreak of hostilities were allowed to depart and were granted a period of grace for the purpose.
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.
A civilian head of state who is the commander-in-chief of his nation's forces becomes a prisoner of war if he falls into enemy hands. Responsibility for the treatment of prisoners of war rests upon the detaining power, although they may be transferred to the custody of another party to the Convention and even, in some circumstances, to a neutral power. Broadly speaking, the duties of the Detaining Power are the concomitant of the rights of prisoners of war. In addition, however, there are duties directly imposed upon them and controlling their freedom of action. Prisoners of war are subject to the laws, regulations and orders of the Detaining Power, but must not be punished for any act which would not have been punishable if committed by a member of that Power's own forces.
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.
During World War II, because of the intensive bombing attacks experienced by the civilian population, some, like the United Kingdom, set up trained units to work in the field of civil defence, assisting those injured or rendered homeless because of air raids. Civilian civil defence personnel may carry light individual weapons for their own protection or to preserve order, but not weapons like fragmentation grenades or those intended for non-human targets. Military personnel assigned to civil defence duties may perform the duties only within their own national territory and must not commit any act outside those duties which might be inimical to the adverse party. If the parties to the conflict are not parties to the Protocol they are not bound by any treaty regulations concerning the activities or rights pertaining to civil defence.
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.