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Cambridge University Press
0521834368 - The Conduct of Hostilities under the Law of International Armed Conflict - Yoram Dinstein
Once it was believed that when the cannons roar, the laws are silent. Today everybody knows better. In fact, the sheer number of international legal norms governing the conduct of hostilities is phenomenal. Legal themes like proportionality, indiscriminate warfare or the prohibition of mass destruction weapons (to cite just a few prime examples) are bruited about - not necessarily in legal terminology - by statesmen, journalists and lay persons around the globe. The public posture seems to be that, if wars are too important to be left entirely to generals and admirals, so are the laws applicable in war.
The growing public interest in the law of international armed conflict - like the increasing desire to see those who breach it criminally prosecuted - attests to a radical change in the Zeitgeist, compared to yesteryear. The reasons for the change are immaterial for the present volume. Perhaps the evolution is simply due to the fact that, in the electronic era, the horrors of war can be literally brought home to television screens thousands of miles away from the battlefield. Be it as it may, everybody feels more than ever affected by any armed conflict raging anywhere. By the same token, almost everybody seems to have ideas and suggestions as to how to augment the humanitarian component in the law of international armed conflict. This is a laudable development. But it is important to keep constantly in mind the sobering thought that wars are fought to be won.
Some people, no doubt animated by the noblest humanitarian impulses, would like to see zero-casualty warfare. However, this is an impossible dream. War is not a chess game. Almost by definition, it entails human losses, suffering and pain. As long as it is waged, humanitarian considerations cannot be the sole legal arbiters of the conduct of hostilities. The law of international armed conflict can and does forbid some modes of behaviour, with a view to minimizing the losses, the suffering and the pain. But it can do so only when there are realistic alternatives to achieving the military goal of victory in war. Should nothing be theoretically permissible to a belligerent engaged in war, ultimately everything will be permitted in practice - because the rules will be ignored.
The present volume deals with the conduct of hostilities in international (inter-State) armed conflict, i.e., armed conflicts raging between two or more sovereign States. The international legal norms dealing with internal (intra-State) armed conflict - once negligible in number and range - have constantly grown in recent years and, in many respects, now emulate the rules pertaining to inter-State hostilities. But, both legally and pragmatically speaking, there are still crucial aspects of dissimilarity between international (inter-State) and internal (intra-State) armed conflicts. Here we shall focus exclusively on the law of international armed conflict (hereinafter: LOIAC), applicable chiefly in wartime but also in clashes 'short of war'.
The book will not address all legal issues related to inter-State armed conflicts, and will concentrate on the conduct of hostilities. En passant, some peripheral references will be made to subjects like neutrality, belligerent occupation or the treatment of prisoners of war in custody, but that will be done solely in order to illuminate a point or to draw a comparison. In particular, this volume avoids all questions of the legality of recourse to the use of inter-State force in accordance with the jus ad bellum, a major topic addressed by the present writer in another book.1
The nine chapters of the book will examine the themes of general framework, lawful combatancy, prohibited weapons, legitimate military objectives, protection of civilians and civilian objects from attack, measures of special protection, protection of the environment, other methods and means of warfare, and war crimes (including command responsibility and defences). Numerous specific topics - ranging from 'collateral damage' to belligerent reprisals, from 'target area' air bombings to attacks against merchant vessels at sea, from the legality of nuclear weapons to individual targeting of enemy commanders - will be analysed against the background of customary international law and treaties in force.
The book is designed not only for international lawyers, but also as a tool for the instruction of military officers. There is a manifest need to train officers at all levels of command in the principles and rules of international armed conflict. This must be done in advance, namely, already in peacetime. Decisions in wartime - especially in the electronic era - are often split-second, and must be predicated on instinct as developed in training. Just as every military service is seeking to have officers and other ranks thoroughly prepared for the eventualities of combat likely to be encountered on the operational side, it is indispensable to imbue soldiers, sailors and aviators with the sense of duty to comply with legal requirements.
It goes without saying that laymen cannot be expected to know all the intricacies of a system of law. Yet, all those going through military training must familiarize themselves with the salient rules of LOIAC, understanding the legal implications of commands issued and obeyed in combat conditions. That is the only way to guarantee that no serious violations of LOIAC will be perpetrated, and that no charges of war crimes will be instigated. It is also the only way to ensure that no gap will develop between legal norms and reality: the 'ought' and the 'is'.
1 The general framework
The present volume deals with the contemporary norms of LOIAC (the law of international armed conflict) under customary international law and treaties in force. The purpose is to present - and analyse - LOIAC neither as it was practised in the past nor as it may evolve in the future, but only as it is legally prescribed and actually implemented at present.
LOIAC constitutes a branch of international law, and as such it is binding on all belligerent States. LOIAC must be differentiated from Rules of Engagement (ROE) issued by various countries (sometimes by diverse commands in the same country), or by international organizations, and altered at will. 'ROE may be framed to restrict certain actions or they may permit actions to the full extent allowable under international law'.1 Accordingly, a belligerent State - animated by political or other reasons of its own - may opt not to employ in given hostilities some destructive weapons the use of which is lawful under LOIAC (see infra, Chapter 3), or to avoid attacking singular targets constituting legitimate military objectives (see infra, Chapter 4). As long as it is acting within the powers vested in it by LOIAC, a belligerent State may at its discretion indulge in a degree of self-restraint. However, under no circumstances can a belligerent State - through ROE or otherwise - authorize its armed forces to commit acts which are incompatible with international obligations imposed by LOIAC.
It must be emphasized at the outset that LOIAC (also known as the jus in bello) is predicated on the postulate of equal application of its legal norms to all Parties to the conflict, irrespective of any belligerent State's standing from the viewpoint of the jus ad bellum. That is to say, LOIAC does not distinguish between the armed forces (or civilians) of the aggressor State(s), on the one hand, and those of the State(s) resorting to self-defence or participating in collective security operations enforced or authorized by the UN Security Council, on the other.2 Breaches of LOIAC cannot be justified on the ground that the enemy is responsible for commencing the hostilities in flagrant breach of the jus ad bellum. In the words of the Preamble to Protocol Ⅰ of 1977, Additional to the Geneva Conventions for the Protection of War Victims:
the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.3
Even United Nations forces (when engaged as combatants in situations of armed conflicts) are obligated to respect the principles and rules of LOIAC.4
A few explanatory comments are called for to set out (a) the sources of the international legal norms forming the underlying strata of the ensuing discourse; (b) the semantics of this materia; (c) caveats relating to the inter-State character of the conflicts in which the legal norms operate; (d) the balance between military necessity and humanitarian considerations; (e) the interrelationship between LOIAC and human rights law; and (f) the dissemination of LOIAC.
I. The sources
A. Customary international law and treaty law
Most of the rules of LOIAC governing the conduct of hostilities have consolidated over the decades in customary international law. Customary international law crystallizes when there is 'evidence of a general practice accepted as law' (to repeat the well-known formula appearing in Article 38(1)(b) of the Statute of the International Court of Justice).5 Two constituent elements are condensed here, one objective and the other subjective. The objective component of the definition relates to the (general) practice of States; and the subjective element is telescoped in the words 'accepted as law'. The subjective factor is often phrased in the Latin expression opinio juris sive necessitatis, meaning 'a belief that this practice is rendered obligatory by the existence of a rule of law requiring it'.6
As for State practice, it consists primarily of actual conduct (acts of commission or omission), but additionally of declarations and statements (often explaining the conduct of the acting State or challenging the conduct of another State). Special importance in the context of LOIAC is attached to military manuals and operational handbooks.
The reference to a 'general' practice calls for four brief observations:
(i) Not every State need necessarily participate (expressly or tacitly) in the general practice.7 In other words, 'general' is not to be confused with universal.
(ii) In certain fields, the practice of some States - which are most directly active - is of overriding import.8 This is true, for example, of naval law (considering that not every State is a significant actor in maritime affairs). It is true all the more where it comes to esoteric areas of State activities.
(iii) Even where not all States have contributed to the emergence of a particular norm, once that norm has solidified as an integral part of general customary international law (as evidenced by 'a general practice accepted as law'), it is binding on all States.
(iv) Customary international law is not always general in scope. The application of some customary norms is confined to a particular region of the world (say, Latin America) or even to the bilateral relations between two States.9
Many of the rules governing the conduct of hostilities in international armed conflict have been incorporated in a host of multilateral treaties (see infra, B). When taken together, these treaties encompass much of LOIAC. Yet, no single treaty - and no cluster of treaties - purports to cover the whole span of LOIAC. Hence, customary international law remains of immense significance. As pronounced in Article 1(2) of Additional Protocol Ⅰ:
In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.10
This is a modern version of the so-called Martens Clause, which will be examined infra (Chapter 3, Ⅰ).
A treaty - by whatever designation (including Convention, Charter, Protocol, Declaration, etc.) - is an agreement concluded between States in written form and governed by international law.11 A treaty (in force) is binding only on contracting Parties: the legal nexus between such States and the treaty is derived from their consent to be bound by it (ex consensu advenit vinculum).12
The bifurcation of LOIAC into treaty law and general customary international law does not preclude interaction between the two sources of law. The interaction exists on several levels:
(i) The framers of some treaty provisions seek to attain a genuine codification, reflecting customary international law. That is to say, the authors of the relevant texts wish to give customary international law the imprimatur of lex scripta without altering its substance, and the international community as a whole (not merely States Parties) acknowledges that the effort has been crowned with success. That being so, a non-contracting Party will also be bound by the norms encapsulated in the treaty, not because they form part of a treaty (which as such binds solely contracting Parties) but because they articulate customary international law.
(ii) Some treaty provisions are adopted with a view to creating new law, openly diverging from pre-existing customary international law. As a rule, a treaty can modify customary international law. The only exception is a conflict between a treaty and 'a peremptory norm of international law' (jus cogens), in which case the treaty is or becomes void.13 There are few norms which are undeniably peremptory in nature, but when a given norm acquires that hallmark - for example, freedom from torture (see infra, V) - modification by treaty (or even by custom) is hard to accomplish.14 Assuming that the customary norm is not peremptory (jus dispositivum), the treaty will effect a departure from that norm, it being understood that the treaty will apply exclusively in the relations between contracting States inter se. Then, one of two things can transpire: either (aa) a long-lasting gap will be formed between the legal regime created by contracting Parties to the treaty and that applicable - under customary international law - in the legal relations between non-contracting Parties (as well as between contracting and non-contracting Parties); or (bb) over the years, the general practice of States will gravitate towards the (originally innovative) treaty provisions, thereby turning them into a true mirror image of customary international law: not the law as it was at the time when the treaty was first formulated, but the law as it has evolved since. For a prominent illustration, see infra, B.
In every international armed conflict, it is indispensable to determine whether a belligerent State whose conduct is at issue has expressed its consent to be bound by any germane treaty in force. But that is not enough. It must be appreciated that:
(i) The treaty may include a general participation clause (or clausula si omnes), whereby its provisions will apply 'only if all the belligerents are parties to the Convention' (the quotation is from Article 2 of Hague Convention (Ⅳ) of 190715). In such a setting, if a single belligerent State in an international armed conflict declines to be a contracting Party to a treaty, the instrument would become inoperative even between all other belligerent States (notwithstanding the fact that they are all contracting Parties and therefore bound by the treaty). The purpose of a general participation clause is to avoid a dual legal regime in wars between coalitions, but the result can be 'especially onerous' when one small State precludes the application of a treaty in a major war.16
(ii) The treaty may mandate that, if one of the belligerent States is not a contracting Party, the others 'shall remain bound by it in their mutual relations' (the quotation is from common Article 2, third Paragraph, of the four Geneva Conventions of 1949 for the Protection of War Victims17). Evidently, such a stipulation will have no practical repercussions in a bilateral armed conflict where one of the belligerent States is not a contracting Party to the treaty (thus leaving no room for any 'mutual relations'). Even in a multipartite armed conflict, the treaty cannot be applied unless at least two opposing belligerent States are contracting Parties, so that they are capable of applying the treaty 'in their mutual relations'.
(iii) Conversely, if the treaty is declaratory of customary international law, it is immaterial whether any belligerent State in an international armed conflict is a contracting Party. Nor does it matter if the treaty is legally in force or if it has a general participation clause. Whatever the juridical status of the treaty per se happens to be, the general obligations of customary international law (enunciated in the text) are binding on every belligerent State. These obligations must be complied with unstintingly, not because they are incorporated in the treaty but - regardless of that fact - because they are independently embedded in customary international law.
Any treaty promulgating rules of LOIAC would usually be consulted by belligerent States (as well as by international fora and tribunals), in order to determine whether or not it impinges upon customary international law. Arriving at the conclusion that the text is in conformity with customary international law is alluring, given the relative clarity of the written word. Nevertheless, as far as customary international law is concerned, the dominant consideration must be evidence that the text coincides with the general practice of States accepted as law. In reality, every treaty codification - even when broadly reflecting pre-existing customary international law - inevitably sharpens the image (lending it, as it were, higher resolution) and often polishes the edges of the picture.
B. The principal treaties
The formulation of treaties pertaining to the conduct of hostilities goes back to the mid-nineteenth century.18 An important landmark was the 1868 St Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, which - notwithstanding its narrowly defined theme - proclaims in the Preamble that 'the progress of civilization should have the effect of alleviating as much as possible the calamities of war'.19 This Declaration has been followed, in the main, by two series of treaties often referred to as the 'Hague law' and the 'Geneva law':
(i) The Hague Conventions of 1899 and 1907. These Conventions, adopted by the Peace Conferences of those years, are apposite to multiple facets of the conduct of hostilities on land, sea and even the air (through the use of balloons). Various texts adopted in 1899 were revised in 1907, at which time further instruments were added: altogether, six Conventions and Declarations were adopted in 1899, and fourteen in 1907.20 Some have not really stood the test of time and have fallen by the wayside. But others have become part and parcel of customary international law. Indeed, the International Military Tribunal at Nuremberg held, in 1946, that - although innovative at its genesis, and notwithstanding the above-mentioned general participation clause appearing in the instrument - Hague Convention (Ⅳ) of 1907 has acquired over the years the lineaments of customary international law:
The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But... by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.21
The International Military Tribunal for the Far East in Tokyo echoed this ruling in its majority Judgment of 1948:
Although the obligation to observe the provisions of the Convention as a binding treaty may be swept away by operation of the 'general participation clause', or otherwise, the Convention remains as good evidence of the customary law of nations.22
(ii) The Geneva Conventions for the Protection of War Victims, also known as the 'Red Cross Conventions'.23 The original Geneva Convention, relating to the wounded in armies in the field, was adopted in 186424 (with the impetus of the foundation of the Red Cross movement on the initiative of H. Dunant25). It was revised and replaced in 1906,26 and then again in 1929,27 at which time a second Convention on prisoners of war was added.28 In 1949, both instruments were superseded by four Conventions dealing with the wounded and sick in armed forces in the field (Convention (Ⅰ)), wounded, sick and shipwrecked members of armed forces at sea (Convention (Ⅱ)), prisoners of war (Convention (Ⅲ)), and the protection of civilians (Convention (Ⅳ)).29
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