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The Implementation of the Modern Law of Armed Conflicts*

Published online by Cambridge University Press:  12 February 2016

G. I. A. D. Draper
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Extract

The late Sir Hersch Lauterpacht once expressed the view that “if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps, even more conspicuously, at the vanishing point of international law”. This led him to the conclusion that the international lawyer must therefore do his duty, in the three particular areas to which he was then drawing the attention of his readers, “with determination though without complacency, and perhaps not always very hopefully”. The three spheres which Lauterpacht considered as meriting the attention of international lawyers at the time at which he wrote, 1953, were “further legal regulation of the humanitarian fringe of the problems involved in the use of new weapons of war, sustained exposition and clarification of the far-reaching provisions of the 1949 Geneva Conventions, and the further clarification of matters not covered by the Geneva Conventions, including the implication of the principle that the law of war is binding not only upon States but also upon individuals”. This great jurist did not live to see the current endeavours that are being made to carry out a revision of the international law of war and the increasing attention that is being paid to the humanitarian content of that law, and even more specifically, to the quest for better and more effective means of implementation of that law.

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Articles
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Israel Law Review , Volume 8 , Issue 1 , January 1973 , pp. 1 - 22
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1973

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References

1 British Year Book of International Law 29 (1952) 381–2.

2 Ibid., at p. 382.

3 Ibid., at pp. 381–2. For Lauterpacht's general approach to the subject of the revision of the Law of War see “The Problem of the Revision of the Law of War”, Ibid., pp. 36–82.

4 See the Report of the first of these two Conferences, “Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts”, ICRC, Geneva, August, 1971.

5 See supra n. 3.

6 U.N.T.S‥ Vol. 75, Nos. 970–973.

7 U.N.T.S. Vol. 78, No. 1021

8 I.C.R.C., Conference of Government Experts, etc., Vol. 1, “Basic Texts” I.C.R.C., Geneva, January, 1972.Google Scholar

9 For an excellent study of the Law of Arms of the late Middle Ages, see Keen, M. H., The Laws of War in the Late Middle Ages (London, Routledge & Kegan Paul, 1965).Google Scholar

10 For a list, see Oppenheim, , International Law Vol. 11, p. x, (Lauterpacht, H., 7th ed., 1955).Google Scholar For a list of the States which have ratified or adhered to these Conventions, see ibid., at pp. 880–83.

11 U.K.T.S. No. 29 (1936).

12 The Geneva (Prisoners of War) Convention, 1929, U.K.T.S. No. 37 (1931); The Geneva (Wounded & Sick) Convention, 1929, U.K.T.S. No. 36 (1931).

13 For the text see “The Law of War on Land” Manual of Military Law, Part III (H.M.S.O., 1958) 203–09.

14 See Hague Convention No. IV, Arts. 1 and 3.

15 See Regulations annexed to Hague Convention No. IV, Art. 30.

16 Ibid., Art. 34.

17 Ibid., Art. 41.

18 See Levie, , “Prisoners of War and the Protecting Power” (1961) 55 A.J.I.L. 375.Google Scholar

19 Annual Digest, 1948, Case No. 215 at p. 642 and p. 644.

20 British Year Book 25 (1948), 296–310, at p. 310.

21 Art. 147.

22 Arts. 13. 46, 47, and 33, respectively.

23 The sole Article in each of the four Geneva Conventions of 1949 dealing with conflicts not of an international character occurring in the territory of a Party to the Convention.

24 See, for instance, the text of Article 74 in the Draft Additional Protocol to the four Geneva Conventions, 1949, in I.C.R.C., Basic Texts, Vol. 1 (Geneva, January, 1972).Google Scholar

25 For a full account of the organization of war crimes trials after World War II, see History of the U.N. War Crimes Commission (H.M.S.O., London, 1948).

26 Arts 49, 50, 129, and 146. Although these are articles common to all four Conventions, there are minor differences in their formulation.

27 See supra n. 26.

28 See the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, annexed to General Assembly Resolution 2391 (XXIII) of 26 November, 1968. This Convention came into force on 11 November, 1970 (Registration No. 10823) and had been ratified by 11 States by 31 December, 1970.

29 See supra n. 26, and Art. 105 of the Geneva (Prisoners of War) Convention made applicable to the trials of all persons charged with “grave breaches” of the Geneva Conventions, 1949.

30 I.e., “protected persons” in occupied territory and internees, whether in the domestic territory of the enemy belligerent, or in occupied territory; see Arts. 126 and 74 of the Geneva (Civilians) Convention, 1949.

31 Art. 6, Genocide Convention, 1948.

32 See supra n. 18.

33 Arts. 8/8/8 and 9.

34 Arts. 10/10/10 and 11.

35 U.N.T.S. Vol. 75, p. 458.

36 Ibid., p. 18 for the text of a USSR Declaration objecting to such a proposal, made at the Diplomatic Conference in Geneva, 1949.

37 See supra n. 33.

38 The present position resulting from the detention by India of a large number of Pakistani POW captured by India and Bangladesh during the fighting in the latter country during the latter months of 1971, is complex. Bangladesh urges that the POW are “prisoners of India and Bangladesh jointly”. This is doubtful in law. India contends that the POW may not yet be returned to Pakistan, although the hostilities between those two countries ceased at the end of 1971, because India is under an obligation to return to Bangladesh all those wanted for “war crimes” committed in Bangladesh before India invaded what was at the time East Pakistan. Such “war crimes” would seem to be violations of the common Article 3, there being at that time an internal conflict within the State of Pakistan, a Party to the Geneva Conventions of 1949. It would seem that if any Pakistani POW are returned to Bangladesh, (not yet recognized as a State by Pakistan) such accused will be entitled to be tried as POW in the manner required by the Geneva (POW) Convention, 1949, having regard to Art. 85. The matter is not clear, but this would seem to be the better interpretation of Art. 85. ICRC delegates have recently been allowed to visit POW civilian internees in India and Pakistan.

39 Desert warfare has not been a feature of the post-1945 armed conflicts. Most of the armed conflicts since that date have been internal or “mixed” armed conflicts. The extensive resort to guerilla fighters and methods in internal conflicts inevitably means that the fighting is in and amongst the civilian population. This is an essential element in urban guerilla fighting and is often the main method in rural guerilla fighting.

40 Art. 126 Geneva (POW) Convention, and Art. 143 Geneva (Civilians) Convention.

41 Arts. 11/11/11, and 12.

42 Arts. 52, 53, 132 and 149

43 Arts. 47, 48, 127 and 144.

44 See I.C.R.C. Commentary, Vol. 111, (1960), 614–5.

45 See I.C.R.C. Basic Texts (Geneva, 1972) 26Google Scholar for the text of Draft Art. 39 in the Draft Protocol to Article 3, common to the four Geneva Conventions of 1949.

46 See supra n. 8.

47 See Draft Arts. 30 to 56.

48 Draft Art. 6 in the First proposed Protocol purports to make the appointment of a Protecting Power mandatory for the Parties in conflict. This is illusory because there is nothing to compel the proposed Protecting Power to accept that role. Such acceptance will, normally, be conditional upon acceptance by the Detaining Power.

49 See supra n. 48. For the same reason the I.C.R.C. cannot be compelled to offer its humanitarian services to Parties in conflict and has its own policies controlling the making of such an offer.

50 See Draft Art. 7 in the First Protocol.

51 See Draft Art. 8 of the First Protocol.

52 See supra n. 48.

53 See supra n. 49.

54 Draft Art. 37.

55 See supra n. 45.