CHAPTER 22__________

The
Laws ,
of War

JLnternational law has always been concerned as much with the

conduct of s engaged in war as with their relations in time of
peace. Indeed, the authors of classics in the law gave priority in
space and attention to hostile relations am nations, a practice
justified by the normality of such relations, compared with
relative abnormality of peace among the states of Europe. The
gradual deve ment of a stable international order favored the
growth of rules governing rights and duties of states in time of
peace, and in modern times, the law of occupies the bulk of any
treatise on international law.
Beginning with the Thirty Years War (1618-1648), isolated
instances of mane practice in the conduct of hostilities acquired
in the course of time the sti of usages and came to be regarded
as customs, as binding legal obligations to be served by states at
war with one another.
What appears to be a paradox in international law is that
war exists, that hostilities between the armed forces of states,
and that there exists an extensive of rules to regulate such
hostilities. The question is often raised whether war, a flict, can
and does exist as a legal institution. In modern times, that claim
mus: denied, except in the case of self-defense against attack,
based on the Charter or United Nations. 1 The laws of war apply
to armed conflicts, whether or not they
called wars: Article 2, common to all four Geneva Conventions of 1949,
applies .. to all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties, even if
the state of war is not recognized by one of them.
1 See the excellent analysis by Greenwood, The Concept of War in Modem International
Int. and Comp. L.Q., 283 (1987).

OF WAR Lauterpacht pointed out that three principles have determined the growth of the
laws of war: the principle that a belligerent is justified in applying any amount and any kind of
force considered necessary to achieve the goal of a conflictthe defeat of the enemy; the
2part VI Armed Conflicts
principle that because of humanitarian considerations, any violence not necessary for the
achievement of that goal should be prohibited; and the principle that a certain amount of
chivalry, of the spirit of fairness, should prevail in the conduct of hostilities, that certain
practices smacking of fraud and deceit should be avoided.2
The laws of war, as mentioned, took the initial form of rules of customary law, beginning
even before the sixteenth century. Their modern development, however, has taken place through
the application of conventional law, through the conclusion of a number of multilateral treaties. 3

THE LAWS

TO DEVELOP THE LAWS OF WAR The middle of the nineteenth century witnessed the birth of
this stage in the growth of the law. First among the major instruments dealing with modern war
was the Declaration of Paris (1856), under which privateering was abolished, regulations were
formulated concerning the status of noncontraband goods, and the rule was created that a
blockade had to be effective in order to have legally binding force. There followed the Geneva
Convention of 1864, concerned with the wounded in the field. The original treaty was replaced
by a revision, signed in Geneva on July 6, 1906. In 1868, the Declaration of St. Petersburg
prohibited the use of small (under fourteen ounces in weight) explosive or incendiary projectiles.

EARLY ATTEMPTS

In 1899, the First Peace Conference at The Hague resulted in the signing of
the Convention with Respect to the Laws and Customs of War on Land, derived from the
Instructions for the Government of Armies of the United States in the Field, issued during the
Civil War (April 24, 1863) and based on a draft by Dr. Francis Lieber of Columbia. The Second
Peace Conference, which met in 1907 in The Hague, revised the earlier convention, and the new
version is known as Convention IV (Convention Respecting the Laws and Customs of War on
Land, The Hague, October 18, 1907). The drafters of the document realized fall well that many
aspects of the conduct of hostilities had not been covered fully or had been omitted from the
document altogether. Hence the preamble of the convention included toward its end the
significant statement:
THE HAGUE CONFERENCES

It has not, however, been found possible at present to concert Regulations

covering all the circumstances which arise in practice.
On the other hand, the High Contracting Parties clearly do not in ten: that unforeseen
cases should, in the absence of a written undertaking, be lcr: to the arbitrary judgment of
military Commanders.
Until a more complete code of the laws of war has been issued, the High Contracting
Parties deem it expedient to declare that, in cases not included in the Regulations adopted
by them, the inhabitants and the belligerents remain under the protection and the rule of
the principles of the law of nations, as they result from the usages established among
civilized peoples, from the laws of humanity, and the dictates of the public conscience.4
It should be noted that both Hague conventions declared or stated principles and rules that,
in essence, represented then existing customary international lal The two instruments were
declaratory, for the most part, of customary rules of law that would have applied to all parties to
a conflict irrespective of the applicability of a Hague convention.
Annexed to the Fourth Convention of 1907 (Convention Respecting the Laws and Customs of
War on Land) were Regulations detailing the conduct I hostilities. Those regulations, of key
importance even today (hereafter referred :: as HR) must be distinguished from the Fourth
Geneva Convention of 1949 (Relative to the Protection of Civilian Persons in Time of War,
hereafter referred to is Geneva-IV) and the two Protocols Additional to the Geneva Conventions
of 12 August 1949, of 1977 (hereafter referred to, respectively as PR-I and PR-II).
2Lauterpachts Oppenheim, II, 227.
3See also Meron, Shakespeares Henry the Fifth and the Law of War, 86 AJIL 1 (1992).
4The last paragraph above is the so-called Martens Clause, frequently cited as demonstrating humanitarian
aspect of the law of war.

The 1907 conference resulted also in a number of additional instruments relating to the
conduct of hostilities: a declaration concerning expanding bullet- (dumdum bullets, named after
a British arsenal in India in which such bullets hi; first been mass-produced), a declaration
chapter 22 The Laws of War
3
dealing with projectiles and explosiv dropped from balloons, a declaration concerning projectiles
diffusing gases of various kinds, a convention adapting to maritime warfare the principles of the
Gene-, i convention (wounded) as revised in 1907, and conventions dealing with the oper- ing of
hostilities, the status of merchant vessels at the outbreak of hostilities, the conversion of
merchant vessels into warships, the laying of automatic con mines, bombardment by naval forces
in time of war, and restrictions on the right capture in maritime war and on the rights and duties
of neutral states and perso-s in land warfare and in naval warfare.
TO DEVELOP LAWS OF WAR AFTER WORLD WARS I AND II After World War L a number of additional
instruments were negotiated. There came into existence n 1925 the Protocol on the Use in War
of Poison Gases, the 1929 Geneva conventions on the treatment of the sick and wounded as well
as of prisoners of war, the London Protocol of 1936 concerning the use of submarines against
merch ships.
World War II was followed by extensive efforts to enact new lawmaking tr ties in order to
benefit from the bitter lessons in lawlessness learned during
conflict and to fill at least some of the major gaps in the laws of war. Thus the Geneva Diplomatic
Conference of 1949 succeeded in drafting four conventions: Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field (Geneva-I); Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva-II); Treatment of
Prisoners of War (Geneva-Ill); and Protection of Civilian Persons in Time of War (Geneva-IV).
Customary laws of war are binding on all belligerents. The Hague conventions of 1899 and
1907 are binding on all belligerents to the extent that they represent customary law and are
binding wholly in the event that all belligerents in a given war are signatories of the convention
in question. The treaties concluded since 1907 are binding wholly only on ratifying or adhering
states.
One of the bitterest arguments connected with the laws of war has centered on the
traditional German assertion, adopted by other states on occasion, that the laws of war may be
set aside in the case of extreme necessitysuch as when only a violation of the laws would
enable a country or a military force to escape from deadly danger or to achieve the purpose of
the war, the defeat of the enemy.
An unlimited doctrine of military necessity (Kriegsraison) cannot be supported easily today.
Its acceptance without qualification would reduce all the laws of war to mere dogmas of military
convenience. Each particular instance in which the doctrine is invoked must therefore be judged
on its own merits. If honest conviction and corroborating factual evidence can be marshaled in
support of a given application of the concept, well and good; but if it can be shown that there
was no dire urgency or that the violation undertaken did not materially and immediately
contribute to military success, then any tribunal judging the case on hand would be bound to
rule that a war crime had been committed.5
Subsequent developments in the effort to expand the scope of the law of war have been
centered in the United Nations and in the International Committee of the Red Cross (ICRC). In
the United Nations, two important documents were produced: the Secretary-Generals first
Report on Respect for Human Rights in Armed Conflicts (GA Doc. A/7720, November 20, 1969)
and its identically titled sequel (GA Doc. A/8052, September 18, 1970). These presented a superb
analysis of certain major gaps in the existing law governing armed conflicts (guerrilla and
internal warfare, wars of national liberation, certain methods of warfare, treatment of prisoners
of war in unusual circumstances, and so on), together with some most promising, as well as
some rather debatable or quite impractical, recommendations. Some important aspects of

ATTEMPTS

5See the illuminating study by Dunbar, Military Necessity in War Crimes Trials, 29 BYIL 442 (1952), and his
The Significance of Military Necessity in the Law of War, 67 Juridical Review 201 (1955), as well as the
appraisals of the problem by Downey, The Law of War and Military Necessity, 47 AJIL 251 (1953), and in
Lauterpachts Oppenheim, II, 231. The history of the concept has been well developed in Weiden, Necessity in
International Law, 24 TGS 105 (1939).

warfare, not all directly related to human rights, were not mentioned in the two reports (for
example, conflicts at sea, economic warfare, and neutrality).
The International Committee of the Red Cross organized two sessions of a Conference of
4part VI Armed Conflicts
Government Experts (1971 and 1972) in Geneva, to draft additional
concrete rules applicable to armed conflicts (primarily in the form of additions
protocols to the 1949 Geneva conventions), followed by the Diplomatic Conference on
Reaffirmation and Development of International Humanitarian Law Applicable in
Armed Conflicts (1974-1977).
On June 8, 1977, the Conference adopted by consensus two conventions Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of International Armed Conflicts (Protocol I) anc Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Conflicts (Protocol II). Both treaties amplify many of the rules
developed in the 1949 Geneva Conventions anc also add some new regulations. The two
treaties are referred to in this text as PR-' and PR-II. Both entered into force on
December 7, 1978.5
Despite the codification since 1907 of the rules governing armed conflict. :: must
be admitted that realistically the laws of war ignore the inability of interna tional law
to prevent war and instead concentrate on the permissible use of forot and the
prohibition of certain weapons and methods of warfare. It is obvious that the advance
of technology has made obsolete a number of the older rules codifiec in 1907, and it is
certain that if there should ever be a major nuclear conflict, the last vestiges of the old
differentiation between combatants and noncombatants will disappear instantaneously.

THE LAWS OF WAR AND INTERNATIONAL FORCES

The development of a global collective security system in the shape of the Unitec
Nations and various regional defense arrangements has posed numerous new problems
in the laws of war. Those laws developed in the context of armed struggles between
individual states. Because collective security systems were not known at the time the
customary and conventional rules governing warfare were drawn up, n: provisions
governing international armed forces were included. Even the most modem
conventions on the subject, the 1949 Geneva instruments and PR-I are concerned with
national and not international forces.
Thus far no official answer has been found to the question of the extent t which
international commands are bound by the existing rules. The fact that such forces
operated in South Korea, in the Near East, in the Congo, on Cyprus, anc elsewhere and
may be called into activity under such organizations as NATO, raises the question of the
extent to which such forces are bound by the laws of war.
Texts of the 1907 Hague Conventions (and annexes) are in 2 AJIL 90, 117, 153, 167 (1908 r. :nt
text of most important treaties dealing with war (up to 1982) are in Roberts and Guelff, Documents or.
the Laws of War, 2nd ed. (1989); on air war, see U.S. Air Force, International LawThe Conduct ofArmei
Conflict and Air Operations (1976); on naval war, see U.S. Navy, Law of Naval Watfare in Tucker, The
Lr: of War and Neutrality (1957) or U.S. Dept, of the Navy, NWIP 10-20, Law of Naval Warfare (1955.
as amended July 1959); on Protocols I and II, texts in 16 1LM 1391 and 1442 (1977). On specialized
treaties restricting the use of certain weapons and/or methods of warfare, see 7 ILM 809 (1968), on
nuclear proliferation; 19 ILM 1523 (1980) and 20, at 567, 795, 1287, (1981), on certain weapons; 11
ILM 309 (1972), on bacteriological and toxin weapons; 16 ILM 90 (1977), on environmental
modifications

The problem posed above has been aggravated by the assumption implied in the
formation of international armed forces, on a global or regional basis, that one side in
the conflict has violated solemn treaty obligations and, as an aggressor, is fighting an
unlawful war. If the laws of war are to apply to such a conflict, should they apply to the
aggressor alone or both sides?

The present writer is convinced that both customary and conventional laws of war
apply equally and unrestrictedly to both sides in a modern war, even if the conflict
involves an international command (or a peacekeeping force) and that one of the
chapter 22 The Laws of War
5
opposing parties may have been guilty of aggression. 6 Similarly, the tribunal in U.S. v.
List et al. (The Hostage Case) pointed out that international law makes no distinction
between a lawful and an unlawful occupant in dealing with the respective duties of
occupant and population in occupied territory.... Whether the invasion was lawful or
criminal is not an important factor in the consideration of this subject. 7 Lauterpacht
asserted that a war is still a war in the eyes of International Law, even though it has
been illegally commenced.8 And the Korean conflict proved quite definitely that both
sides were regarded as being bound by the customary and conventional rules of war.9
OF NON-INTERNATIONAL WARS At the 1974-1977 Diplomatic Conference, the West German
delegate stated that 80 percent of the victims of armed conflicts after World War II were
the victims of non-international conflicts, and the Soviet delegate asserted that the
figure should be raised to 90 percent. 10 Moreover, until December 1978 when Protocol
II of 1977 came into force, the only conventional (treaty-based) international law rule
applicable to internal war was the common Article 3 of the four Geneva conventions of
1949 (see below), which was, in Farers felicitous phrase, a statement of affectionate
generalities.11 Nevertheless, Article 3 was the first example of a worldwide rule of
international law requiring a state to treat its own citizensrebels though they might
bein accordance with the minimum standards laid down by the family of nations.

LAW

Article 3
In the case of armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties, each Party to the conflict shall
be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who
have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circur - stances be treated humanely, without
any adverse distinction founded c a race, colour, religion or faith, sex, birth or wealth, or
any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutih- tion, cruel
treatment and torture;
(ib) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and deg-;:- ing treatment;
(id) the passing of sentences and the carrying out of executions with: previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee :* the Red Cross,
may offer its service to the Parties to the conflict.
6See also Morgenstern, Validity of the Acts of the Belligerent Occupant, 28 BYIL 291 at 321, n. 1 (1951), and see
Whiteman, X, 43.
7' Trial of War Criminals Before the Nuremberg Military Tribunals (1948), 1247, cited in Cunningham Civil Affairs
A Suggested Legal Approach, Military L. Rev. October 1960, 115, at 125, n. 29.
8Lauterpachts Oppenheim, II, 299.
9See Whiteman, X, 58-63, for relevant documents.
101(,In Forsythes illuminating and heavily documented Legal Management Internal War: The 1977 Protocol on
Noninternational Armed Conflicts, 72 AJIL 272, at 272 (1978).
111 Farer, The Laws of War 25 Years After Nuremberg (International Conciliation No. 538 1971), 31. See also
Luard ed., The International Regulation of Civil Wars (1972); and Moore, ed., Lair and Civil War i?i the Modem
World (1974).

The Parties to the conflict should further endeavour to bring into force, bi means of
special agreements, all or part of the other provisions to the presem Convention.
The application of the preceding provisions shall not affect the legal Stan of the Parties to
6part VI Armed Conflicts
the conflict.
The relevance of common Article 3 was admitted unofficially in several instance- :i noninternational conflict by both parties involved (France and the Algerian National Liberation
Front, 1956, and the Cuban government and Fidel Castro's rt:<e movement, 1959). 12
Protocol II of 1977 itself is a rather interesting document. It reaffirms common Article 3 of
1949 (Preamble); disavows the legitimacy of any form c f : - crimination in its application (Art. 21); supplies a list of fundamental guaranied for those not taking a direct part or who have ceased
to take part in hostilities _r~ eluding a categorical prohibition of taking hostages and committing
acts of terra r- ism (Art. 4); provides additional minimum safeguards for those whose liberr.
been restricted (Art. 5); offers detailed guidelines for the prosecution and punidftj ment of
criminal offenses related to the armed conflict, including a prohibit! c n punishment except after
trial before an independent and impartial court (Art outlines procedures to be applied
concerning the wounded, the sick, and the s wrecked (Arts. 7-12); and supplies minimum
protection directives for the

12Forsythe, op. cit. supra, n. 10, at 274. See also id., 275, for a surprisingly long list of interr_i_ flicts (1949
through 1978) in which at least one party accepted Article 3 or in which the Inte Red Cross contacted detainees.

chapter

22 The Laws of War

591

population, relative to the latters being bombed or shelled, its

survival requirements, and installations containing dangerous
forces, for example, dams, dikes, and nuclear electric-generating
stationseven if such should be genuine military objectivesif such
attacks would cause severe civilian losses (Arts. 13-18). 13
Because almost all countries participating in the formulation of
PR-II were opposed to incorporating any sort of enforcement
mechanism in the instrument, the determination of its applicability
still rests, in essence, with the governments and other agencies
(including rebel movements) involved in any given non-international
armed conflict.14 But the fact that such an admittedly weak treaty
dealing with such an explosive and emotionally upsetting topic as
internal wars could come into being and achieve ratification by
enough countries to enter into force gives hope for the future of the
international regulation of internal wars. This is especially true in
view of the evidence so carefully marshaled by Forsythe, namely,
that in a very considerable proportion of the post-World War II civil
wars, either or both parties involved accepted the obligations
imposed by the common Article 3 of the Geneva conventions of
1949.
The number of armed conflicts in 1992 was the largest since
the end of World War II. The reasons for this deplorable escalation
were not difficult to find: the number of states had increased
dramatically since 1945; the boundaries of many countries cut
across cultural, historical, and ethnic lines; and the removal of
control by such entities as the former Soviet Union permitted longstanding but hitherto suppressed animosities, even hatreds,
between various units to come to the surface and to lead to armed
conflict.

SUGGESTED READINGS
Laws of War: General
Pictet, Development and Principles of International Humanitarian Law
(1985); Schindler and Toman, eds., The Laws of Anned Conflict, 3rd. ed.
(1988); Levie, The Code of International Aivned Conflicts. 2 vols. (1986);
Kalshoven and Sondoz, eds., Implementation of International Humanitarian
Law (1989); Delissen, ed., Humanitarian Law ofAnned Conflict (1991); von
Glahn, Law Among Nations, 6th ed., chaps. 20-27 (1992); McDougal and
Feliciano, The International Law of War (1994); Best, War and Law Since
1945 (1994); McCoubrey, International Humanitarian Law (1990).

13See also Aldrich, Human Rights and Armed Conflict, Proceedings (1973), 67 AJIL 141
(1973).
14See also Forsythe, op. cit. supra, n. 10, at 294, on this point.

chapter

22 The Laws of War591

Protocols I and II
Sofaer, The U.S. Decision Not to Ratify Protocol I to the Geneva
Conventions on the Protection of War Victims, 82 AJIL 784 (1988); Levie,
Protection of War Victims: Protocol I to the 1949 Geneva Conventions
(1979-81); Gasset, The U.S. Decision Not to Ratify Protocol I to the Geneva
Conventions on the Protection of War Victims, 81 AJIL 912 (1987) and id.,
83, at 345 (1989); President Reagans letter of transmittal to the Senate
(Jan. 29, 1987), transmit

598

part

VI Armed Conflicts

ting Protocol II for advice and consent and stating the reasons why PR-I
would not be transmitted, 81 AJIL 910 (1987); Meyer, ed., Armed Conflict
and the New Law: Aspects of the 19 Geneva Protocols and the 1981
Weapons Convention (1989); Aldrich, Prospects for United States
Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85
AJIL (1991); Forsythe, Legal Management of International Wars: The 1977
Protocol on Nan- International Armed Conflict, 72 AJIL 272 (1978); Meron
The Time Has Come for the United States to Ratify Geneva Protocol I, 88
AJIL 678 (1994).

Internal War
Cassese, The Status of Rebels under the 1977 Geneva Protocol on NonInternatiorui Armed Conflicts, 30 Intland Comp. L Q. 416 (1981); Levie,
ed., The Law ofNon-Intematmm al Armed Conflict: Protocol II to the 1949
Geneva Conventions (1987); Meron, Human Right m Internal Strife: Their
International Protection (1988); Wilson, International Law and the Use ^
Force by National Liberation Movements (1988); Falk, ed., The
International Law of Civil Wmr (1970); Bethlehem and Weller, eds., The
Yugoslav Crisis in International Law (1994).