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The function of the laws of war in peacetime

Published online by Cambridge University Press:  13 January 2010

Henri Meyrowitz
Henri Meyrowitz*
Affiliation:
Doctor of Laws Honorary Advocate at the Paris Court of Appeal
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Extract

Several provisions of the 1949 Geneva Conventions and of Protocol I of 1977 stipulate, expressly or implicitly, that the respective Contracting Power must implement them as soon as said instruments enter into force, that is already in peacetime. This is the case, in particular, of the articles common to the four Geneva Conventions concerning the widest possible dissemination of the text of the Conventions and the obligation of the Contracting Parties to communicate to one another the official translations of the Conventions, as well as the laws and regulations they adopt to ensure the application thereof.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 26 , Issue 251 , April 1986 , pp. 77 - 88
Copyright
Copyright © International Committee of the Red Cross 1986

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References

1 First Convention, Art. 47; Second Convention, Art. 48; Third Convention, Art. 127; Fourth Convention, Art. 144.

2 First Convention, Art. 48; Second Convention, Art. 49; Third Convention, Art. 128; Fourth Convention, Art. 145.

3 See Resolution 21 adopted by the 1974–1977 Diplomatic Conference and inviting the signatory States “to take all appropriate measures to ensure that knowledge of international humanitarian law applicable in armed conflict, and of the fundamental principles on which that law is based, is effectively disseminated”, particularly by encouraging the authorities concerned to plan and give effect to arrangements to teach international humanitarian law and by undertaking in peacetime the training of suitable persons to teach international humanitarian law.

4 The Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques, of 10 December 1976, does not refer to any specific type of weapons, but to “any technique for changing—through the deliberate manipulation of natural processes—the dynamics, composition or structure of the earth”. Such techniques are included in the notion of “new weapons” of Art. 36. But the Convention prohibits only the “military or any other hostile use” of these techniques. Not only does it not prohibit the study, development or adoption of such techniques, but it also expressly stipulates that its provisions “shall not hinder the use of environmental modification techniques for peaceful purposes”. It is beyond doubt that this Convention is covered by the phrase “or by any other rule of international law applicable to the High Contracting Party” of Art. 36, in fine.

5 Protocol I prohibits attacks by way of reprisals against the civilian population or civilians [Art. 51 (6)], civilian objects [Art. 52 (1)], cultural objects and places of worship (Art. 53), objects indispensable to the survival of the civilian population [Art. 54 (4)], the natural environment (Art. 55), the works and installations containing dangerous forces or the military objectives mentioned in paragraph 1 of Art. 56 [Art. 56 (4)].

6 Consequently, the question of criminal liability for the execution of orders in violation of the laws of war cannot arise in peacetime, whether at national or international level.

7 Gray, Colin S., Strategic Studies. A Critical Assessment, Westport, Conn., Greenwood Press, 1982, p. 125.Google Scholar

8 It is the lack of common values—except the unformulated one which resulted in the four Conventions—which prevented the 1949 Diplomatic Conference from reaching a consensus on the terms of a preamble. See Huber, Max, Das Völkerrecht und der Mensch, St. Gallen: Tschudi Verlag, 1952, p. 16 Google Scholar.

Although Protocol I has a Preamble, it only propounds the value of peace, within the meaning of Art. 2 (4) of the Charter of the United Nations. Yet Protocol I and the laws of war as a whole presuppose a breach of peace by use of armed force (which is prohibited), a fact conveyed in the Preamble by a single word: nevertheless. As to the reasons why States believed it “necessary nevertheless” to reaffirm and develop the provisions of the laws of war (and not only those of the 1949 Conventions) and as to the values on which these reaffirmed or developed provisions are based, the authors of the Protocol were—and probably had no choice but to be—just as silent as the authors of the Conventions had been before them.

The importance of the Preamble lies in its final paragraph—one of the most significant provisions of the Protocol—which reaffirms the prínciple of “non-differenciation” under the laws of war, both as regards the nature or origin of a conflict (principle of equality of the belligerents, aggressed and aggressor, under jus in bello) and as regards the “causes espoused by or attributed to the Parties to the conflict”. The principle of neutrality of the laws of war, too, belongs to the rules which “retroact” on peacetime and which neither governments nor strategists have the right to ignore when they draw up their war and operational plans.

9 Royse, M. W., in La protection des populations civiles contre les bombardements. Consultations juridiques, Geneva, ICRC, 1930, p. 86.Google Scholar

10 Id., Aerial Bombardment and the International Regulation of Warfare, New York, 1928, p. 139.Google Scholar

11 Schwarzenberger, Georg, The Frontiers of International Law, London, Stevens and Sons, 1962, p. 260.Google Scholar