Law

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Leslie C. Green

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.

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Series:

Leslie C. Green

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.

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Leslie C. Green

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'.

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Leslie C. Green

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.

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Series:

Leslie C. Green

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.

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Series:

Leslie C. Green

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.

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Series:

Leslie C. Green

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.

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Series:

Leslie C. Green

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.

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Series:

Leslie C. Green

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'.

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Series:

Leslie C. Green

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.