<b>Bijsluiter</b>. De hyperlink naar het originele document werkt niet meer. Daarom laat Woogle de tekst zien die in dat document stond. Deze tekst kan vreemde foutieve woorden of zinnen bevatten en de opmaak kan verdwenen of veranderd zijn. Dit komt door het zwartlakken van vertrouwelijke informatie of doordat de tekst niet digitaal beschikbaar was en dus ingescand en vervolgens via OCR weer ingelezen is. Voor het originele document, neem contact op met de Woo-contactpersoon van het bestuursorgaan.<br><br>====================================================================== Pagina 1 ======================================================================

<pre>  Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
  Humanitarian Law and Laws of War                                                                                  Greenwood
                         INTERNATIONAL HUMANITARIAN LAW
                                         AND THE LAWS OF WAR
                    Preliminary Report for the Ceritennial Commemoration
                            / of the First Hague Péacé Conférence 1899
                          /
                     /7
                               4
t          pursuajto UnitNans General Assembly ResW of 15 December 19,t*1 DocumenJC.6I52I3
                               -.
                                                                     ,
                                                                        1                             Christopher Greenwood
                                        Table of Contents
                                                lntroduction
                                                The Laws of War at the 1899 Peace Conference                                     4
                                                11.1    Background                                                               4
                                                11.2    The Laws ofWarat the Conference                                          5
                                                11.3    The 1907 Peace Conference and the Laws of War
                                                                                                                    /            9
                                                The Scope and AppHcation of the Laws of War                                      9
                                                     I  (a)
                                                        (b)
                                                                Laws of War and Laws agairê War ‘!,
                                                                The Laws of War and otIrAréointemat,onaI Law
                                                                                                                                10
                                                                                                                               21
                                                1112    TheScopeoftheLawsofWar
                                                        (a)     The Concepts oWaan(L,
                                                                               ned Con fit
                                                                               4
                                                        (b)     Unite(Jatians Operatk3ns
                                                                                                  7/
                                        IV      The Conduct of Hostdlties In International Armed Confhcts                      33
                                                IV.1    Entitlement to Combatant Status                                        34
                                                IV.2 The Law of Weaponry        .   .
                                                lV.3 The Law of Tarèting                                                       43
                                                IV.4 The Law of Belligerent Occupation                                         47
                                                IV.5    The Law of Naval Warfare                                               51
                                        V.      Intemal Conflicts                                                              55
                                                V. 1    The Scope of Application of the Law on Intemal Conflicts               57
                                                V.2     The Substantive Law Applicable to Intemal Armed Conflicts              62
                                                V.3     Compliance with the Law of Intemal Armed Conflict                      66
                                        VI.     Improving Compliance with the Laws of War
                                                VI.1    Prosecution of War Crimes
                                                VI.2    Peacetime Measures                                                     70
                                                VI.3 The Protecting Power and the Role of the International Committee of the
                                                        Red Cross                                                              72
                                                VI.4 The Fact-Finding Commission                                               73
                                                VI.5 The Role of States and the United Nations                                 74
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                   Greenwood ii
                                                                                                                             -   -
                                              Vl.6     State Responsibility                                                    76
                                               VI.7    Human Rights Mechanisms                                                 77
                                       VII     Conciusions                                                                     78
                                                                                                                                   0
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<pre>                  —- -—-                                  --——--- ----                    ---                             —
 Centennial of the First international Peace Cdnference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                 Greenwood 1 -   -
                                         Introduction
                                         1      The codification and revision of the laws of war, or, to use the
                                         term more widely employed today, “international humanitarian Iaw”
                                         proved to be one of the most important parts of the work of the 1899
                                         Hague Peace Conference (referred to herein as ‘the Conference’)
                                        When the Conference oonv ed the laws of war were almost all
                               /
                         /
                          /             unwnttn they covered onl ajiparatively small part of military
                      /                 activity and there was considetb1e çtroversy re9arding their
                                        extent and manner of application even aniongst States with
                                                                                        - 1’   --•-&         -.
                  /
                                        otherwise sirnilar views about international1aw The Conference
                                        began the process which has gone on throughout the wentieth
            /                           century of developing a substantial body of wnttJn law fôr the
                                        conduct of hostilities The resuits of that century oflaw-making are
         /                              evident In contrast to the position in 1899, most aects of military
                                        activity are now regulated by treaty or by rules of ot1tomary law
                                       which are authoritatively stated in treaty texts Thdree of detail
                                        is such that any collection of the relevant agreemeritscomprises
                                        hundredsofpages
                                       2       The Conference was held at a time when there was great
                                       optimîsm about the effect which scientific progsincludihg
                                       developments in the science of international luld have upon
                                       the condition of humanity Yet as an eminentary historian has
                                       said, the undoubted progress which the tenth century has seen
                                       in tackling the problems of famine orckf%s has not been matched
                                       by progrss in reducing the threÎpd by war 2 While the
                                       subject of this Report is that part of the law which seeks to alleviate
                                       the effeots of war rather than to prevent war itself the same note of
                                      caution applies For all the undoubted progress which has been
                                       made durïhg the last 100 yéiin developing the law in this area, the
                                       difficulty of preserving humanitarian values in time of war is, if
                                       anything, even more acute at the end of the century than it was at
                                       the beginning.
                             1.        Not all parts of the laws of war can strictly be regarded as humanitarian but the
                                       doctrinal debate about which rules should be characterised as humanitarian and
                                       which should not falls outside the scope of this report. For the sake of simpilcity,
                                      therefore, the terms ‘laws of war’ and ‘internationai humanitarian law’ will be treated
                                       as synonymous in this report. The term ‘law of armed conflict’ is also treated as
                                       synonymous with ‘laws of war’.
                             2.       J. Keegan, War and Our World (BBC, 1998), t.
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<pre>Centenniai of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                  Greenwood -2    -
                                       3       The centen ary of the 1899 Peace Conference, coinciding as It
                                       does with the 5Oth anniversary of the adoption of the Geneva
                                       Conventions and the end of the United Nations Decade of Inter
                                       national Law, thus provides an excellent opportunity to refiect on the
                                       development of the laws of war. The purpose of this Report will be to
                                       recali some of the achievements and failures of the last century and
                                       to attempt to idntrfy those parts of the laws of war which stand in
                                       greatest need of a teition at the end of the twentieth century The
                                       Report will focus on the analysis of four main subjects or themes,
                                      which are of pariciiIarSçnificance fope future ohhe laws of war
                                       Most though not all of these themes were touched on at the
                                       Conference, even if developments during the succeedirig hundred
                                      years have taken them in directions very different from those which
                                       might have been erwisaged in 1899 The approach adopted, in
                                       respect of each of these themes will be to condict a’stocktaking of
                                       the principal achievements and failures of the twntith century, to
                                       identify the principal problems which remain unresoi&J and where
                                       appropriate, to suggest how such problems might be addressed
                                                                      t
                                      4        At the end of a century which has seen so much of war and in
                                      which the laws of war have proved so comparatwetPipeffeqtual, it
                                       seems obvious that that law must be seen as defictent and the
                                       record of the last hundred years be adjudged one of failure rather
                                      than achievement This Report will certainly idéntify defibiencies in
                                       several areas of the law Yet the princii conlusion s not that the
                                      world needs new law or different law, 6uttiat’the law which we
                                       have needs to be made more ffïAs Sir Franklin Berman has
                                       put it 1
                                               It seems to manythat the problem is riot to discover what the
                                               law is or how to apply it to the particular case, or even whether
                                               the existing rule is satisfactory’ or not, but rather how to secure
                                               or compéIcôrf$l1ance with the law at all. It may be that we
                                               have now passed from a great phase of law-making to a period
                                               where the focus is not on new substantive law but on how to
                                               make existing law effective.
                                       5       As a preliminary to the main discussion, the Report begins
                                       (Part II) with a brief examination of the laws of war issues which
                                       came before the Conference, and its successor of 1907, and a
                             3.        Sir Franklin Berman, Preface to Lady Fox and M. Meyer (eds.), Effecting
                                       Compllance (1993), p. xii.
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<pre>Centennial of the First international Peace Conference                                                   PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                   Greenwood -3-
                                       survey of the approach adopted at those conferences. Thereafter,
                                       the following themes will be examined in greater detail:
                                       1      the scope and appilcation of the Iaws of war(Part III), a section
                                              which will examine the place of the laws of war in international
                                              law as a whole, their re!aUonship with the prohibition on resort
                                              to force in the United Nations Charter and with other areas of
                                              law, such as the law of human rights as well as considering
                                          the circumstances in which the laws of war become applicable
                                       2” the conduct of hostilities n ,nternat,onaI armed conflicts
                                              (Part IV), which will discuss the sibstantive law applicable to
                                              armed conflicts possessing an international character, in
                                              particular the law relating to belligerent occuation, weapons
                                              targets and combatancy and the law of naa1 warfre
                                      3       the conduct of hosti!it,es in intemal armed coflflicts (Part V),
                                              which will conduct a similar examination of the law applicable
                                              to armed conflicts occurring within a State.
                                      4       methods for ensuring compliance w,th the IaY?Part VI), which
                                              will look at the means of implementing the lawconsidered in
                                              the earlier parts of the Report.                                  t
                                      6       Finally, a concluding section (Part VII) will make somè tentative
                                      suggestions regarding what should be considered the priorities for
                                      the future in this area of the law                               I%,’        /
                                                                                                                  /
                                                                                                                /
                                      7       The present Report is of a preliminary nature It was always
                                      the intention that it would be reconsidered and revised in the light of
                                      the discussions to be held as part of te commemoration process
                                      with a final version of the Report being produced in 1999 There is
                                      however, an additionalreason why the Report and particularly Parts
                                      VI and VII must be regarded as possessing a preliminary character
                                      At the’ time that this Report was drafted (June 1998), the Inter
                                      governmental Conference on the Proposed International Criminal
                                      Court was opening in Rome. The work of this Conference is likely to
                                      have a considerable impact on the laws of war and, in particular, on
                                      the methods for ensuring compliance with those Iaws. Until the
                                      outcome of the Rome Conference is known, it would obviously be
                                      premature to engage in any detailed comment on the law in relation
                                      to war crimes.
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<pre>                                                                                                                                  -4
Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                  Greenwood -4-
                                II. The Laws of War at the 1899 Peace Conference
                                fl.1 Background
                                       8       When Count Mouravieff first proposed the convening of an
                                       international p&e conference,
                                                                   4 the question of revision of the laws
                                       of war had                        ect of discussion in the international
                             /         c                                                    A nûmber of treaties dealing
                                                                                             lopted The Declaration of
                        /
                                             ,  1856, prohibited pi                                 le a nunber of other
                  /                    provisions regardtng fhe Iaws of n                                The Çeneva
                                       Convention, 1864, the first of the “Red Cross” convenions,
            /
                                       estabhshed a legal regime for the protection of rnedical personnel in
                                                                                                                   \
        /
          /
                  ç                    land warfare. In 1 86an attempt was made to adgt additional
                                       articles extending the 1864 Convention to navaiRre b’tt these
                                       articles never entered into force The St PetersbuEgeclartIon,
                                       1868, outlawing projectiles of under 400 grammeeigh(i e rifle
                                       ammunition but not artillery shells) which were exTosL or dharged
               r4                     with fulminating or infiammable substances 5 becanît1e firs
               fl
                                      agreement of modern times to prohibit the use of a specific çategory
                                      of weapâns.                                                        ,...
                                                                                                                         1
                                                                                                                          /
                                      9        Moreover there was considerable enthusiasm for the adoption
                                      of a comprehensive code of the laws of war at least in relation to
                                       land warfare The United States had iS5L                                         to its
                                                                     6
                                      armed forces in 1863 In 1874 at                                                1 ce,
                                         presentatives of fifteen States                                       of an Inter-
                                       nationaIDeclaration cor                                                    of War on
                                       Land, al                                                         inding7 The Institut
                                            droit                                                  the Laws of War on
                             4.        Letter of 24 August 1898. The texts of many of the documents concerning the
                                      Conference can be found in The International Peace Conference, Netherlands
                                       Ministry of Foreign Affairs, 1907, and A. Pearce Higgins, The Hague Peace
                                       Conferences (1909) and J.B. Scott, The Proceedings of the Hague Peace
                                       Conferences: The Conference of 1899 (Translation into English prepared by the
                                      Carnegie Endowment, 1920).
                             5.        In the authentic French text, ‘tout projectile d’un poids inférieur â 400 grammes qui
                                      serait ou explosible ou chargé de matières fuiminantes ou infiammables’.
                             6.       This was the famous ‘Lieber Code’ drawn up by the jurist Francis Lieber for the
                                       Lincoin Government during the American CMI War and issued as General Order
                                       100, Schindier and Toman, The Laws of Armed Conflicts (3rd ed., 1988), p. 3.
                             7.        Schindier and Toman, p. 25.
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<pre> Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                 Greenwood -5-
                                        Land in 18808 which built upon the Brussels Declaration. All three
                                        texts were to prove influential at the Conference.
                                11.2 The Laws of War at the Conference
                                        10     Although the proposal of the Russian Government for the
                                        eaoe Conference originally foçussed upon disarmament and the
                         /••
                                        prevention of war, the detailed listl pîcs produced for the
                              ‘S        Conference was more heavily weighte towards the laws of war.
                                        The topics suggested for discussion were:-                              t
                                        1      the prohibition for afixed term of any increae of the armed
                                               forces beyond those then maintained;
           )
                                        2      the prohibition of, or limitation in the employment of new
                                               firearrns or explosives;
                                        3      the restriction of the explosives already existing and the
                                               prohibition of the discharge of projectiles or eplosives of any
                                               kind from balloons or by any similar means;
                                       4       the prohibition in naval warfare of submarine torpedo-boats or
                                               similar eng mes of destruction, and the ultimate abolition of
                                               vessels with rams;
                                       5       the application to naval warfare of the principles of the Geneva
                                               Convention of 1864 on the basis of the additional Articles of
                                               1868;
                                               the neutralisation of ships and boatethoyed in saving those
                                               shipwrecked during or after angament;
                                               the revision of the unratified’rel Declaration of 1874
                                               concerning the Iaws and custcirns of war on land; and
                                       8       the acceptance in principle of the employment of good offices,
                                               of mediation and arbitration with the object of preventing
                                               armed conflicts between nations, and the establishment of a
                                               uniform practice in their employmentY
                                       12      Items 1 to 4 on this list were allocated to the First Committee of
                                       the Conference, which concentrated on disarmament. That proved
                                       to be the least productive part of the Conference’s work. The two
                                       Declarations agreed in the First Committee on the prohibition, for a
                                                                                                   —
                             8.        5 Ann de I’institut de droit international (1881-2) 156; Schindler and Toman, p. 35.
                             9.        Pearce Higgins, op. cit., p. 40.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood -6   -
                                       period of five years, of the discharge of explosive projectiles from
                                       ° and the permanent prohibition of projectiles, “the sole
                                       1
                                       baNoons
                                       purpose of which was the diffusion of asphyxiating or deleterious
                                       11 are really laws of war instruments.
                                       gases”       —                              12 Items 5, 6 and 7,
                                       which clearly concerned the laws of war, were dealt with by the
                                       SeconCommittee, while the question of peaceful settiement of
                                       disputes was considered by the Third Cömmfttee.
                         /                 ‘ln practice, It was in the area of the laws of war that the
                      /                13
                                       Conference made,the greatest progress tiE developing the law The
                                       foremost objective of maintaining peace, gave rise to the
                                       Convention for the Pacific Settiement of Disputes but th undoubted
                                       importance of that Convention lay more in the cttion of the
                                       institution of the Permanent Court of Arbitration thar in the
                                       development of substantive law 13 Very littie wachieved in
                                       relation to disarmament By contrast, the Confererhetook a number
                                       of importait steps in what would now be describedthe
                                       codification and progressive development of the Iawsofwar
                                                                                                              r
                                       14      The most striking achievement was the adoption of the
                                       Convention on the Laws and Customs of War on Land and’the
                                       Regulations attached thereto These Regulations built upon the
                                       Lieber Code, the 1874 Brussels Declaration and the 1880 Oxford
                                       Manual The Convention was however much möre than just an
                                       effort in codification. The task which theConfØënce sèt itself was
                                       the revision of the laws of war with the aiftboth of making them
                                       more precise and laying down cerlair                    it in ordér to modify the
                                       severity of war On the whpI, e onferenc&was successful in
                                                                                                                                  c
                                       achieving these goals The Regulations on the Laws and Customs
                                       of War on Land went beyond the earlier instruments in a number of
                                       ways. As ne of theUnited States delegates put It:
                             10.       Declaration No. 1, 1899.
                             11.       Declaration No. II, 1899. In the authentic French text, the passage quoted reads:
                                        projectiles qui ont pour but unique de répandre des gaz asphyxiants ou délétères’.
                             12.       Captain Crozier, of the US delegation, made the point in his report that these
                                       subjects would more togically have been considerd by the Second Committee for
                                       that reason; J.B. Scott (ed.) lnstructions to the American Delegates to the Hague
                                       Peace Conferences and their Official Repoîs (1916), p. 29.
                             13.       This subject is discussed in the Joint Report of Professors Orrego Vicuna and Pinto,
                                       prepared for the 1999 Centennial Commemoration and is not discussed further in
                                       the present Report.
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<pre>Centennial of the First international Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood -7    -
                                               The code [i.e. the Regulations annexed to the Convention] in
                                               general presents that advance from the rules of General Order
                                               100 [the Lieber Code] in the direction of effort to spare the
                                               sufferings of the population of invaded and occupied countries,
                                              to limit the acts of invaders to those required by military
                                               necessities, and to diminish what are ordinarily known as the
                                           evils of war, which might be expected from the progress of
                                               nearly forty years’ thought upon the subject.’   4
                                       is     The scope of the Regulations was ambitious, taking in most of
                ,,,iJ         4       the faw of land wafare (with the eception of those issues covered
                                      by the 1864 Geneva Convention). Moeover, the fact that the
                                      Conference was not able to reach agreement on a number of
                                      important issues (noticeably, the question of combatant status for
                                      members of popular resistance movements) was Yitjgated by the
                                      incorporation in the Preamble of the Convention f tHe first version
                                      of the “Martens Clause”, proposed by the Chairman of the Sub
                                      Committee on Land Warfare of the Second Committee. This clause
                                      has attracted such a clegree of attention over the course of the
                                      century that it is worthwhile reproducing it in full, tger with certain
                                      other paragraphs of the Preamble:
                                              According to the view of the High Contracting Parties,. these
                                              provisions, the wording of which has been inspired by the
                                              desire to diminish the evils of war, so far as• •,ilita necessities
                                              permit, are intended to serve as generaljs’of conduct for
                                              belligerents in their relations with each o”ffi and with
                                              populations.
                                              It has not, however, been possible to agree forthwith on
                                              provisions embracing all the circumstances which occur in
                                              practice.
                                              On the other hand, it could not be intended by the High
                                              Contracting Parties that the cases not provided for should, for
                                              want of a written provision be left to the arbitrary judgment of
                                              military commanders
                                              Until a more complete code of the laws of war can be issued,
                                              the High Contracting Parties think it expedient to declare that in
                                              cases not included in the Regulations adopted by them,
                                              populations and belligerents remain under the protection and
                                              the rule of the principles of the law of nations, as they result
                                              from the usages established between civilised nations, from
                             14.      Report   of Captain Crozier, loc. cit. note 9, above, p. 46.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                  Greenwood -8   -
                                               the Iaws of humanity, and the requirements of the public
                                               15
                                               conscience.
                                       16      While the 1899 Convention and Regulations were superseded
                                       in most respects by HagueConvention No. IV, 1907, and the
                                       Regulatiois annexed to that Convention, they remain an important
                                       landmark in the evolution of the Iaws of war and many of the
                                       provisions wh4’onated in”the 1899 text and were carned over
                                       into the 1907 legulations continue to. be regarded as an
                                       authöritative statement• of custom                 tational law rules one
                                       hundred yearslater.
                                                         ij
                                       17      The Conference also adopted a Conventionadapt)ng the
         t,
                 4’                    princip les of the Genev Convention to naval warfaLe, the project
                                      which States had failed to bring to completion in’6. Th’e
                                       Conventlon thus adopted was the forerunner of theSecond Geneva
                                       Convention, 1949, which is still in force.
                                                                    1
                                       18      In addition, the Conference adopted three Declarations                   -
                                      -        Declaration No 1, outlawing for a period of five years the
                                               discharge of explosive projectiles from balloon,                       J
                                      -        Declaration No II prohibiting the use of projectiles the sole
                                               purp5se of which was the diffusion of asphyxiating or
                                               deleterious gases, and
                                               Declaration No III, prohibiting the use of expanding bullets and
                                                         bullets which flatten easilv or expand in the human body
                             15.      The authentic French text
                                                  Selon les vues des Hautes Parties cntractantes ces dispositions don t la
                                          ‘       rédaction a ete inspiree par Ie desir de diminuer les maux de la guerre
                                                  autantqueles nécessitésmilitaires Ie permettent, sont destinées servir
                                                  de règIe générale de conduite aux belligérants, dans leurs rapports entre
                                                  eux et avec les populations.
                                                  II n’a pas été possible toutefois de concerter dès maintenant des
                                                  stipulations s’étendant â toutes les circonstances qui se présentent dans le
                                                  pratique.
                                                  D’autre part, II ne pouvait entrer dans les intentions des Haute Parties
                                                 contractantes que le cas non prévus fussent, faute de stipulation écrite,
                                                  laissées â l’appréciation arbitraire de ceux qui dirigent les armées.
                                                  En attendant quun Code plus complet des bis de la guerre puisse être
                                                  édicté, les Hautes Partjes contractantes jugent opportun de constater que,
                                                  dans les cas non compris dans les dispositions réglementaires adoptées
                                                  par elles, les populations et les belligérants restent sous la sauvegarde et
                                                  sous rempire des principes du droit des gens, tels qu’ils résuftent des
                                                  usgaes établis entre nations cMlisées, des bis de l’humanité et des
                                                  exigences de la conscience publique.
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<pre> Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                 Greenwood -9-
                                         19       While these Declarations straddie the boundary between the
                                        laws of war and disarmament, there is littie doubt that the main
                                        motive behind their adoption was humanitarian. One of the United
                                        States delegates, for example, commented on Declaration No. 1 that
                                                  The actiori was taken for humanitarian reasons alone, and was
                                          _..     founded upon the opinion that balloons, as they now exist,
                                                  form such an uricertain means of delivery that they cannot be
                                                  used with any accuracy 16
                                        20
                                           Qh
                                              ‘%
                                                            a
                                                                 -                9
                                                  Finally the Conference indicated, in a series of voeux adopted
                                        as part of the Final Act, that it considered It desirable that there
                                        should be discussion at a Second Peace Conference of a range of
                                        questions on the law of naval warfare and the lawof neutrality which
                   1                    had not been before it in 1899, as well as suggéstirig a revision of
                                       the Geneva Convention, 1864.
                               11.3 The 1907 Peace Conference and the Laws of War
                                       21        The 1907 Peace Conference built upon the achievements of
                                       the 1899 Conference Both of the Conventions on the laws of war
                                       adopted by the 1899 Conference were revised In addition, the
                                       Second Conference adopted seven new Conventions on the Iaws of
                                       naval warfare a Convention on the rights and duties of rieutral
                                       powers in land warfare and a Convention relative to the commence
                                       ment of hostilities
                                                              r                                              /
                                                                                                           /
                                                    4
                                       The Scope and Application of the Laws of War
                                                           —          —
                                       22        In assessing the ach ievements of 1899 in the laws of war, two
                                       questions have to be addressed at the outset: when do those Iaws
                                       apply and what is their place in the structure of international law as a
                                       whole? These are not just theoretical questions although they      —
                                       have considerable theoretical significance for the answers have
                                                                                                 —
                                       important practical implications. International law is not simply a
                                       coliection of mies and principles, It is a legal system, within which no
                                       one body of law can exist in isolation from the whole. While the laws
                             16.       Captain Crozier, loc. cit. note 9, above, p. 31.
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<pre>Centenniai of the First international Peace Conference                                                  PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                               Greenwood 10-
                                                                                                                          -
                                       of war address the specific problems of the conduct of hostilities and
                                       are, to that extent, lex specialis, It is necessary to consider their
                                       relationship with the law governing the right to resort to force (theius
                                       ad bellum) and also with other parts of international law which might
                                       have an irnpact upontheconduct of warfare, such as the law of
                                       human rights and international environmental law. Moreover, the
                                       effectiveness of the substantive laws of war will be significantly
                                       reduced if there is constant contrbversy about the circumstances in
                                       wch those laws are applicable This Part of the Report will
                                       therefore examifle the place of the laws of war in the structure of
                                       internationa Law and the circumstances in which the laws of war
                                       become apphcable
                               III 1 The Laws of War within the Structure of International Law
                                       (a)     Laws of War and Laws against War
                                       23      Even in 1899 there was something anomalous in a Peace
                                       Conference summoned with the objective of preventing war,
                                       devoting so much attention to devising laws for the conduct of war
                                       In the words of one contemporary commentator
                                               The Emperor of Russia might have said of it, “1 labour for
                                                                                                           “s
                                               peace but when l speak to them thereof, they maké them
                                               ready for battle” 17
                 \                t
                                       24      Yet he delegates at the Conference evidently s’aw no
                                       inconsistency in seeking to prevent war whie also drawing up codes
                                       of conduct for its regulation In the vênt that wr should break out
                                       Their attitude was succinctly stafed in the Preambie to the
                                       Convention on the Laws and Customs of War on Land
                                               Corisidering that while seeking to preserve peace and prevent
                                               armed conflicts between nations, It is likewise necessary to
                                               have regard to cases where an appeal to arms may be caused
                                               by events which their solicitude could not avert;
                                               Animated also by the desire to serve, even in this extreme
                                               case, the interests of humanity and the ever progressive needs
                                               of civilisation;
                                               Thinking it important, with this object, to revise the laws and
                                               customs of war, either with the view of defining them more
                                               precisely, or of laying down certain limits for the purpose of
                                               modifying their severity as far as possible...
                              17.      A. Pearce Higgins, The Hague Peace Conferences (1909), p. 43.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                 Greenwood 11-    -
                                       25      That approach was plainly right, both as a matter of common
                                       sense and in principle, given that international law in 1899 did not
                                       prohibit recourse to war as an instwment of national policy and that
                                       the Conference did not attempt to alter that situation      8 However,
                                       once international law first through the Covenant of the League of
                                                                      —
                                       Nations and the Pact forthe Renunciation of War and latterly
                                       through Article 2(4) of theUnited Nations Charter developed rules   —
                                      which severely limited the right of S1tés to resort to force in their
                                       international relations, such an app(ôch became more difficult to
                                      justify.
                                       26      In particular, three issues arise. First, should international law
                                       continue to devote so much attention to the law otthe conduct of
                                      war now that it has prohibited recourse to war as an instrument of
                                       national policy? Secondly, is It right or even possit1e to maintain
                                                                                         —                        —
                                       the principle, which was taken for granted in 1 899,1 the Iaws of
                                       war apply equally to all the warring parties, irrespeçtivof which is
                                       the aggressor? Thirdly, quite apart from the prinèip1e & equal
                                       application, are the laws of war affected by the fact that they now
                                       co-exist with a law against war?                                  (%           /
                                                                                                              —     1
                                                      -
                                       27      With regard to the first question, there have certainly been
                                       occasioris during the twentieth century when ithas been argued that
                                       attention to the laws of war distracts from the mpre irnortant task of
                                       preventing war or even undermines the pbftion on resort to force.
                                      That was one of the reasonswhy $P1ertationa[ Law Commission
                                       did not place the refom, of the Iaws of war on its agenda in 1949
                                       There can be no doubt, howéver, that the history of the twentieth
                                       century has vindicated the approach of the delegates to thel 899
                                       Confrence in seeking to regulate the conduct of war at the same
                                       time as striving for its prevention. More than fifty years after the
                                       adoption of the United Nations Charter, it is all too apparent that
                                       prohibition of war has not meant prevention and that the need for
                                       legal regulation of warfare, “to serve, even in this extreme case, the
                             18.       The Convention for the Pacific Settiement of International Disputes merely required
                                       parties before an appeal to arms     ... to have recourse, as far as circumstances
                                       allow, to the good offices or mediation of one or more friendly Powers’ (Article 1).
                             19        Year8ook of the International Law Commission, 1949, vol. t, pp. 51-3. A more
                                       practical reason was the fact that the Red cross had already embarked upon a
                                       complete revision of the Geneva Conventions.
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<pre>Centennial of the First international Peace Conference                                                     PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood 12-   -
                                       interests of humanity” is greater than ever. There is no evidence
                                       whatsoever that the existence of laws designed to achieve that goal
                                       does anything to make war more likely or to undermine the
                                       prohibition on resort to force in the Charter and other instruments.
                                       On the contrary, recent United Nations practice in particular, the-
                                       determinations by the Security Council, in respect of the former
                                      Yugoslavia andarda that better enforcement of the laws of war
                                       could assist in addressirtg threat to international peace and
                                       - strongly suggests that atterion to the laws of war
                                       1
                                       security
                                       co’mplements, rather than distracts fro’m, the attempts to prevent
                                      °
                                      2
                                      war
             /                         28      The second question poses more problems at both a
           1
                                       theoretical and a practical level The notion that t1e laws of war
                                       confer the same rights, and impose the same obligations, upon the
                                       aggressor and the victim of that aggression appeç to run counter
                                       to the fundamental principle that no one should prélËtrom their own
                                       unlawful act (ex iniurla ius non ontur) In particuIre laws of war
                                       confer upon belligerents extensive rights vis-a-vis not only other
                                       belligerents but also neutral States Should a State be entitled to
                                       such rights when t has itself been responsible, in viiation cf its
                                       obligations under the United Nations Charter and customary law, for
                                       initiatinga conflict?                                                       :
                                       29      The idea of distinguishing in the appli                  n of th laws of war
                                       between the aggressor and the victim (or where the United Nations
                                       undertakes or authorises the usef rçe, between the forces of a
                                       Iawbreaker and those seeking to restore international peace and
                                       security) has been made on sevéral occastons since international
                                       law developed a prohibition on recourse to force. In United States v.
                                       List (“thè Hostages case, the prosecution argued that, since
                                       Germany’s invasion of the Balkan States had been an illegal use of
                                       force, the subsequent occupation was illegal in its entirety and those
                             20.       See Security Council resoiution 827 (1993), estabiishing the lritemationai Criminai
                                       Tribunai for the Former Yugoslavia, the preambie to which states the Council’s view
                                       that the prosecution of persons responsibie for serious violations of intemationai
                                       humanitarian iaw wouid contribute to the restoration and maintenance of peace.
                                       See also resoiution 955 (1994), establishing the international Criminai Tribunai for
                                       Rwanda. The Council’s view has also been reflected in the first decisions of the
                                       two Tribunais: Prosecutorv. Tadic (Jurisdiction) (Appeals Chamber, Yugosiav
                                       Tribunal) 105 ILR 419, decision of 2 October 1995; Prosecutorv. Kanyabashi
                                       (Jurisdiction) (Trial Chamber, Rwanda Tribunai), ICTR-96-15-T, decision of 18 June
                                        1997.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                 Greenwood -13-
                                       who commanded the German forces during that occupation could
                                       not rely upon the powers given by the laws of war to a belligerent
                                       occupant as a defence.21 At the Diplomatic Conference on
                                       Humanitarian Law in 1974, it was argued by one State that soldiers
                                      who participated in an illegal war could derive no benefit from the
                                       laws of war, because of the illegality of their State’s resort to force.
                                                                          “bI
                                      30  L\There are, however, compelling argurents, both of practice
                        /             and principle, for rejecting such an approach. First, to hold that the
                                       laws of war applied ina different way to the different sides in a
                                      conflict would be likely to undermine the application of the law. As
                                      Sir Hersch Lauterpacht explained
                                                   unless the aggressor has been defeated from the very
                                               outset It IS impossible to visualize the couçt of hostilities in
                                                           ,
                                               which one side would be bound by rules owarfare ‘ithout
                                               benefiting from them and the other side wouldenefit from
                                               rules of warfare without being bound by theni.ccordingly,
                                               anyapplication to the actual conduct of warb1f1ë prin              ipleex
                                                                                                                  6
                                               iniuna ius non ontur would transform the copfstnto astruggle
                                               which may be subject to no regulation at all 1               ieresuft would
                                                                                                            4
                                               be the abandonment of most rules of warfare, including those
                                               which are of a humanitarian character.22
                                      31       Secondly, the overwhelming majority of the laws of war seek to
                                      benefit and protect not the belligerent States thernselves but
                                      individuals caught up in the conflict. Even if tate to which they
                                      owe allegiance has acted unlawfully in resorlin to force the
                                    population of that State cannot be regardeas responsible for that
                                      illegality and should not thefore be deprived of the protection
                                      which the laws of war ffor. The laws of war are directed to all
                                                                              ,
                               ‘% individuals, in the sense that any individual
                                                                          _,
                                                                                                  al any level of authority
                                      may bear criminal responsibility for such violations of those rules as
                                      he or she may commit (e.g. the ill-treatment of prisoners or
                                      detainees), whereas the law against war is directed to the State itself
                                      and only the most senior decision-makers within a State have ever
                                      been convicted for the crime of waging aggressive war.                23
                            21.       l5Ann Dig 632 at636-7.
                            22.       H. Lauterpacht, ‘The Limits of the Operation of the Law of War’ 30 BYIL (1953) 206
                                      at 212.
                             23.       Thus, the International Military Tribunal at Nuremberg acquitted Speer, Hitler’s
                                       armaments minister, of crimes against the peace on the ground that he did not
                                        participate in taking the decisions to wage aggressive war, aithough he was
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                               Greenwood 14-    -
                                       32      It is, therefore, one of the ach ievements of the twentieth
                                       century that the principle that the laws of war apply with equal force
                                      to all parties to a conflict has survived and been reaffirmed. The
                                       United States Military Tribunal in List rejected the prosecution
                                       argument outlined above and held that, for the purposes of a war
                                       crimes trial, no distinction was to be made between an occupation
                                       resulting from a lawful use of force and one which was the product of
                                      aggression. The same view was taken in a number of other trials at
                        /             the end of the Second World War. Proposals made at the 1974-77
                  /                    Diplomatic Conference to depart frornthe’principle of equal
                                      application received almost no support and the preamble to
                                      Additional Protocol 1, 1977, reaffirms the principle of equal
                                      application when it states that
                                                   the provisions of the Geneva Conventipns’of 12 August
         f                                     1949 and of this Protocol must be fully applid in all
                                               circumstances to all persons who are protectedby those
                                               instruments, without any adverse distinctionbased on the
                                               nature or origin of the armed conflict or on thé causes
                                               espoused by or attributed to the Parties to ie co flict.
                                      33       Most recently, the principle of equality of application of the
                                      laws of war was tacitly recognized in the Convention on the Safety of
                                      United Naijons and Associated Personnel, 1994. That Corivention
                                      provides that attacks upon United Nations and. associated personnel
                                      in Certain categories of United Nations operatlèn are crimes which all
                                      States have a duty to make punishable undehationa) Iaw                    4 The
                           \‘         Convention thus draws a legal distin &ven the use of force
                   \convicted rimes, pmcee sIntemational Mifta Tdbunal, Pa 22,
                                 % pp. 521-3. Similar verdicts were reached in respect of a number of other
                                    defendants at Nuremberg. A United States Military Tribunal in United States v. Von
                                       Leeb (‘the High Command case’) 15 Ann Dig 620 (1948) held that the members of
                                       the German General Staff were guilty of war crimes but acquitted them of crimes
                                        against the peace. Similarly, in the IG Farben case, the United States Military
                                       Tribunal stated that ‘we cannot say that a private citizen shall be placed in the
                                        position of being compelled to determine in the heat of war whether his government
                                        is rightorwrong, or, if itstarts right, when It goes wrong’ (l5Ann Dig 668 at670).
                                       The recently established International Criminal Tribunal for the Former Yugoslavia
                                        has jurisdiction in respect of war crimes and crimes against humanity but not
                                       crimes against the peace.
                             24.      Article 9. For discussion of the Convention, see E. Bloom, ‘Protecting
                                      Peacekeepers: The Convention on the Safety of United Nations and Associated
                                      Personnel 89 AJIL (1995) p. 621, C. Bourloyannis-Vrailas, ‘The Convention on the
                                      Safety of United Nations and Associated Personnel’, 44 ICLQ (1995) p. 560, C.
                                      Greenwood, ‘Protection of Peacekeepers: The Legal Regime’, 7 Duke Joumal of
                                      Comparative and International Law (1996), p. 185 and W.G. Sharp, ‘Protecting the
                                      Avatars of International Peace and Security’, loc. cit, p. 93.
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<pre> Centenniai of the First International Peace Conference                                                  PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                              Greenwood 15-
                                                                                                                         -
                                        by and against United Nations personnel. Article 2(2) provides, how
                                        ever, that the Convention does not apply to a United Nations
                                        operation, authorized by the Council under Chapter VII of the
                                        Charter,     “in which any of the personnel are engaged as corn batants
                                        against organized armedforces and to which the law of international
                                     rmed conflict applies”. The inference is that once a United Nations
                                        force becomes subjeçt to the laws of armed conflict, those Iaws
                                        apply equally to the United Nations farce and its adversaries    25
                                                                                Ul1
                                        34     The equal apphcation of the laws of war does not of course
                                        mean that the illegality of the aggressor’s resort to force produces no
                                        consequences Since the aggressors resort to force is unlawful, It
                                       incurs international responsibility for all the consequences of its use
         ,1                            of farce It therefore has a duty to compensate nQtonly those who
                                        have suffered loss as a result of the violations of the laws f war
                                       committed by its forces but also those injured by acts of the same
                                       forces which were not contrary to that law In the Iar casa, the
                                       iHegality which gives rise to the responsibility lies in thoriginaI
                                       wrongful resort to force Moreover since opposition        toan iIIgaI
                                                                                                 t
                                       resort to force is an entirely foreseeable consequence of that
                                       unlawful act the aggressor can also be held resporisible for damage
                                     1 caused by lawful acts of war on the part of its opponents This was
                                       the approach adopted in the aftermath of the jiflfeonflict, when the
                                       Security Council reaffirmed in resolution 6B1) that Iraq was
                                       “liable under international law for any direct i% damage or injury
                                       to foreign Governments nationals or corpratI6ns as a result of its
                                       unlawful invasion and occupation af Çiait”       26 That has been
                                       interpreted by the Uruted Nations Compensation Commission as
                                       including losses caused by military actio or the threat of military
                                       action bythe coalition forces.27 Inaduition to the ordinary
                                       responsibilityofthe State for its unlawful act, the act of aggression
                                       may involve the criminal responsibility of those individuals
                             25.       The problem of determining when the iaw of armed conflict becomes appilcabie to a
                                       United Nations operation is considered below.
                             26.       Para. 16.
                             27.       Governing Councii Decision No. 7, para. 21(a), United Nations Doc.
                                       S/AC.261199117/Rev. 1, 109 iLR 586, and the Report and Recommendatlons of the
                                       Panei of Commissioners in the Well Blowout Control Claim (18 December 1996),
                                       United Nations Doc. SIAC.2611 99615, 109 ILR 479.
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<pre>Centennial of the First international Peace Conference                                                   PRELIMINARY REP0RT
Humanitanan Law and Laws of War                                                                                 Greenwood 16
                                                                                                                           -    -
                                       responsible for taking the decision to initiate aggression and the
                                       criminal responsibility of the State itself. 28
                                       35      The third question posed in this section, namely whether the
                                       laws of war are affected by the fact that they now co-exist with a law
                                       against war, may also have considerable practical significance and
                                       has so far received comparatively littie ttention. It is dear that,
                            /          uncier contemporary international law, the use of force by a State in
                        /              its international relations will be lawfuJnIy if two requirements are
                  /
                      -        S       satisfied
                                       a
                                                    -
                                               the resort to force is compatible with the United Nations
                                               Charter, and
                                       b       the actual use of force is not contrary to thdlaws of war
                                       36      The first requirement will be satisfied if the resort to force is an
                                       exercise of the right of self-defence preserved in Arttcle 51 of the
                                       Charter For a State’s use of force to constitute sefi-bfence how
                                       ever it is not enough that the conditions for the exerci, of that right
                                       existed at the time that the decision to use force wa tdken The
                                       right of self-defence inciudes the limitations of necessity an
                                       29 and the measures which the Statçtually takes
                                       proportionality
                                       must therefore, meet the criteria of necessity and proportiönality if
                                       the use of force is to be lawful The imphcatioriwere eçplained by
                     ‘4                Judge Ago in his Reportto the International 1.ommlsion on the
                                       law of State Responsibility when he sajh>
                                               In fact the requirements of the eity” and “proportionality”
                                 4             of the action taken in self-de                 cati simply be described as
                                               two ides of the same ein                    -  efencevill be valid as a
                                               circumstance precluding the wrongfulness of the conduct of
                                               the State only 1f that State was unable to achieve the desired
                                               result by different conduct involving wither no use of armed
                                               force at all or merely itsuse on a lesser scaIe°
                             28.       internationai Law Commission Draft Articles on State Responsibiiity, Article 19.
                                       Whether the concept of criminal responsibiiity of the State, as opposed to the
                                       individuais, is a useful concept and what consequences foiiow from it are matters of
                                       controversy which cannot be considered here.
                             29.       Oase concerning Military and Paramiiitary Actions in and against Nicaragua, para.
                                       176, international Court of Justice Reports, 1996, 3 at p. 94; Advisoty Opinion en
                                       the Legailly of the Threat or Use of Nuclear Weapons, international Court of Justice
                                       Reports, 1996,225 at pp. 244-5, paras 40-41.
                             30.       Eighth Report on State Responsibiiity, YearBook of the ILC, 1980, vol. 11(i), at
                                       p. 121.
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<pre> Centennial of the First International Peace Conference                                                   PRELIMINARY REP0RT
 Humanftarian Law and Laws of War                                                                                Greenwood -17-
                                        37      That does not mean that the degree of force employed in self
                                        defence must be no greater than that used in the original armed
                                        attack. To quote Judge Ago once more:
                                               The requirement of the proportionality of the action taken in
                                               self-defence . . concerns the relationship between that action
                                            - and its purpose, namely and this can never be repeated too
                                                                                —
                                               often—that of halting and repellirig the attack or even, in so far
                                               as preveüve self-defence is recognized, of preventing it from
                           /                   occurring. It would be mistaken, however, to think that there
                         /
                                         \\ must be proportionality between’the conduct constituting the
                                               armed attack and the opposing coriduct. The action needed to
                                               halt and repulse the attack may wèIl have to assume
                                               dimensions disproportionate to those of the attaôk suffered         31
                                                        -r
                                        38     In other words, “the concept of proportionaIit*j referred to was
          Iç                            that which was proportionate to repeNing the attack, and not a
                                        requirement of symmetry between the mode of the initial attack and
                                       the mode of response”.
                                                           32
                                                                    4
                                       39      It then becomes necessary to determine whethëthe IWnitation
                                       of proportionality and riecessity continues to apply heh a State
                                       goes to war or engages in an armed conflict by way of self
                 A’’                   defence It has sometimes been suggested that “the limits inherent
                                       in the requirement of proportionality are clearly rneaningless where
                                       the armed ttack and the likewise armed resis&ice to it lead to a
                      ‘ ..É
                          1            state of war between the two countries.          . 33 However, such an
                                                                                            ,,
                                       approach would mean that a State could free itself of some of the
                  \\ ‘      ’,Iimitations of the right of self-defenceby deelanng war or otherwise
                            1
                                       man ifesting an intention to treat afl attack as ar act of war
                           \. something for which there is warrant in the Charter and which
                                would seem to be wholly contrary to principle. A further problem is
                                       that if “war” is here used as synonymous with “armed conflict” (as is
                                       now frequently the case), then the result would be that the
                                       proportionality and necessity limitation would apply only to isolated
                             31.       Loc.cit.
                             32.       Dissenting Opinion of Judge Higgins, Advisory Opinion on the Legality of the Threat
                                       or Use of Nuclear Weapons, International Court of Justice Reports, 1996, 225 at
                                       583. See also H. Waldock, ‘The regulation of the Use of Force by Individual States
                                       in International Law’, 81 RC (1952) 451 at p. 464 and A. Randelzhofer,
                                       Comrnentaryon Article 51 inB. Simma (ed.), The Charter of the United Nations:A
                                       Commentaiy (1994), p. 677.
                             33.       Ago, loc. cit., para. 121. See also Y. Dinstein, War, Aggression and Seif-Defence
                                       (2nd ed., 1994) at pp. 232-3.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -18-
                                       and low level instances of the use of force. 1f, on the other hand,
                                       “war” is in some way to be distinguished from other kinds of “armed
                                       conflict” there is no agreement regarding the criteria by which that is
                                       to be done.
                                               34
                                      40       Moreover, in its recent Advisory Opinion on the Legality of the
                                       Threat or Use of Nuclear Weapons, the International Court of Justice
                           /           considered that the requirements of necessity and proportionality as
                      //               elements of the right of self-defence applied “whatever the means of
                                      force employed” and were thus appIicjto the use of nuclear
                                      35 It is difficult to imagine a use of nuclear weapons which
                                      weapons.
                                      would not amount to an act of war. It is suggested, therefore, that
                                       acts of force undertaken in self-defence must stiirèompiy with the
                  t
                                       requirements of necessity and proportionality, even 1f they occur in
                                      time of war or armed conflict.
                                      41       Self-defence is not the onlyjustification for ret to force in
                                       contemporary international law. Force may lawfully beused if it has
         1
                                       been properly authorized by the Security Council n the exercise of
                                       its powers under Chapter VII of the Charter, as was done in the Gulf
                                       conflict in 1990-91 when those States which engaged in military
                                       operationsagainst lraq did so under a mandate coiferredby
                                       Resolution 678. Once again, however, the use of’force iIl be lawful
                                      only if it is confined to what is necessary and pâortionate to the
                                      achievement of the goals set out by the Security Council. In so far
                                      as other justifications which have been advanced for the use of force
                                       (e.g., humanitarian intervention) may hve become part of
                                      contemporary international law (a riîatter which falls outside the
                                      scope of this Report), they too are subject to the principle that, since
                                      they justify the use of force only in order to achieve a particular
                                       purpose, that justification is limited to what is necessary and
                                       proportionate to the achievement of that purpose.
                                      42       It follows that the legality of the conduct of hostilities today
                                       cannot be judged solely by reference to the laws of war. The
                                       requirements of the Iaw restricting resort to force must also be
                                       satisfied. The fact that a particular action might be considered a
                             34.       See C. Greenwood, The Concept of War in Modern International Law’ 36 ICLQ
                                       (1987) 283.
                             35.       Loc. cit., note 16, above, at para. 41. See also para. 105 (c).
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<pre>                                                                                                                  PRELIMINARY REPORT
Centenniai of the First international Peace Conference
                                                                                                                           Greenwood 19- -
Humanitarian Law and Laws of War
                                       necessary and proportionate act of self-defence cannot justify It 1f It
                                       is contrary to the laws of war but the fact that a particular use of
                                       force does not contravene the laws of war no longer suffices to
                                       make it lawful 1f It fails to meet the criteria of being necessary and
                                       proporUonate for the achievement of the goals of self-defence, the
                                       discharge of a Security Council mandate, or, perhaps, some other
                                       goal for which the use of force may be permitted by international law.
                               7
                              /
                        /              43    ‘Ç  The acceptance of this pnnciple, which was taken for granted
                                        by the Court in the Nuclear Weapons case has important practical
                      /
                                        implicationsin several areas                -
                                        a        it has an effect upon the duration of the period within which
                                                  belligerent acts may be taken While a ceasefire or armistice
           t
            /                                     does not bring aind to a formal state of war, the continued
         1
          /
                                                  asserlion of belligerent rights after the conclusion of an
                                                  armistice or ceasefire will not normally be justiflable today,
                                                                                                                                      36
                                                  since it will not be a necessary measure of selfkiefence
                                                  Even where there has been no formal armistLce or ceaefire
                                                  such measures may be unjustified if hostilities have in tact
                                                  ceased and there is no immediate danger of their recurrence
                                         b        It may limit the geographical area within whichhostilitiès may
                                                   be conducted Under the laws of war, there was a distinction
                                                   between the “regionof war” the area within which hostilities
                                                   might lawfully takeplace and the “theatre of war”, within which
                                                   they actually occurred The region of war inciuded the entire
                                                   area of the high seas and the terntory of the belligerents
                                                   While a State exercising a nghtf seif-defence is not obhged
                                                   to confine its activities to the theatre of war setected by its
                                                   assailant if broadening the area within which hostilities occur Is
                                                   necessary to repel the attack or to ensure the security of the
                                                   defending State and its forces, it must be questioned whether
                                                    It is any longer right to assume, especially in a conflict fought
                                                   for limited objectives and of short duration, that It would be
                                                   justifiable to initiate a military operation anywhere within the
                                                                                                                           assertion by Egypt
                                36.       See Security Council Resolution 95 (1951) which stated that the
                                          of bellige    rent rights  agains t shippin g  two and   a  half years  after  the conciusion of an
                                          armistice and an end of active hostilities betwee           n  Egypt  and   lsraei could not be
                                                                                 re of  self-de fence,  notwit hstand   ing  Egypt’s assertion
                                          justified as a necessary measu
                                                               in a state of  war with  lsraei and   the  specific measu    res taken were not
                                           that It was still
                                           prohibited by the armistice agreement.
                                                                                                                                      ence only
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                  Greenwood -20  -
                                               trad itional region of war, no matter how remote from the scene
                                               of the actual fighting already taking place.
                                       c       it may have an effect upon what is to be considered a lawful
                                               target. The laws of war already contain detailed rules
                                               regarding targeting (whjh are the subject of discussion in Part
                                               IV, infra) and principles dwn from the law on resort to force
                                               can not of course everjustify an attack upon something which
                          /                    the laws of war prohiblt a belligerent from attacking However
                        /                      It IS possible that an attack                  particular target which is not
                                          ‘    protected by the       1ws     of war n ertheles go beyond what
                                               can be considered a necessary and proportionate act of
                                               self-defence and thus be unlawful.
                                       d       It may affect the weapons and methods of warfare which may
                                               lawfully be used While a State resorting to fotce in self
                                               defence or pursuant to a mandate from the Security qouncil is
                                               not required to limit itself to the level of weapçnry employed by
                                               its assailant, a substantial escalation of viole+e will be justified
                                               only if t is necessary and proportionate Thaj was clearly
                                               recognized by the International Court of Justice in the Nuclear
                                                Weapons opinior Although the Court did not accept                      /
                                               submissions that recourse to nuclear weapon was n$cessarily
                                               contrary to the principle of proportionality, it ciearly considered
                                               that recourse to nuclear weapons was a stepwhich had to be
                                               assessed by reference to the criterion o                      ortiohality
                                       e       It will have an effect upon the relatns                    etween belligerents
                                               and neutrals The exact contQok1                       Iw   of neutrality today
                                               is in any event a matter for debt Whatever that law may
                                               be, however t is dear that t is affected tr a number of ways
                                                                                                                                  C
                                               by the principle of the Chrter and the law on resort to force.
                                               Thus, where the Security Councif imposes measures under
                                               Article 41 of the Charter, the obligation of States to comply with
                                               those measures 38 prevails over any inconsistent rights or
                                               obligations which may exist under the ordinary law applicable
                                               to relations between belligerents and neutrals.    39 Even where
                             37.       Advisoty Opinion on the Legality of the Threat or Use of Nuclear Weapons,
                                       international Court of Justice Reports, 1996, 225 at 245, paras. 41-43.
                             38.       Articles 2(5) and 25 of the Charter.
                             39.       Article 103 of the Charter. See aiso paragraph 40f the resolution adopted bythe
                                       Institut de droit international at its Weisbaden session in 1975, 56 Ann de l’institut
                                       541.
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<pre> Centenniai of the First International Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                Greenwood -21    -
                                                no such measures are taken, It is probable that a belligerent
                                                may exercise against neutral States the powers accorded to It
                                                by the (aw of neutrailty only to the extent that such action is
                                                necessary for its own self-defence and proportionate to the
                                                threat which It faces
                                        44      While these are, inthe briefest outline, some of the
                                        impationswhich appear to follow from the fact that in contrast to
                                        the position in 1899 the laws of war now exist within a framework of
                                        international law which significantly restrtcts t,,he rightof States to
                                        resort to force, the full implications of the relationship between the
                                        contemporary ius ad bellum and ius in bellb have yet tobe
                                        determined Particularly in the area of relations between neutrals
                                        and belligerents this is a subject which would repayurther study
                                        (b)     The Laws of War and other Areas of Intematîonal Law
                                       45
                                                                    i
                                                The laws of war have not only been affected by the emergence
                                       of a law again St war Two other areas of international law the law            —
                                       of human rights and international environmentaI1aW— have
                                       developed in a way which has potentially important implications for
                                       the laws of war.                                                 ‘fr
                                                                                                                  /
                                       46       While the matter is not entirely free of controversy, it appears
                                       that the principal human rights treatieswere intended to apply in time
                                       of war or armed conflict as well s tines of peace The fact that
                                       some of these treaties contain prövisions permitting States to
                                       derogate from some, tough not all, of their obligations under the
                                       treaties 1h question in time of war or other national emergency
                                       impliesthat theexistence of a wr doos not automatically terminate
                                       or suspend their application.
                                                              41 In its Advisory Opinion on Nuclear
                             40.       See, e.g., the statement by the United Kingdom Government foliowing the detention
                                       by the Iranian navy of the British vessel Barber Perseus during the Iran-iraq War,
                                       47 BYIL (1 986), p. 583. However, not all States took this position, see A. de Guttry
                                       and N. Ronzitti, The Iran-Iraq War and the Law of Naval Warfare (1993).
                             41.       See, eg., European Convention on Human Rights, 1951 Article 15 and the
                                       American Convention on Human Rights, 1969, Article 27. The International
                                       Covenant on Civii and Political Rights, 1966, contains a clause providing for
                                       derogation in times of national emergency but does not mention war as such
                                       (Article 4). However, in the course of the negotiation of Article 6 of the Covenant,
                                       concerning the right to life, the deprivation of life by means of a Iawful act of war
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -22-
                                       Weapons, the International Court of Justice observed that “the
                                       protection of the International Covenant on Civil and Political Rights
                                       does not cease in times of war, except by operation of Article 4 of
                                      the Covenant whereby certain provisions may be derogated from in
                                       a time of national emergency.
                                                               42 The question, therefore, is what
                                      effect, if any, does the law of human rights have upon the
                                      application of the laws of war.
                           /                                                     1,
                      /                    VThe effect of the law of human ,ights upon the conduct of
                                       hostilities is limitedbylwo factors. First, a State party to a human
                                       rights treaty usually undertakes to ensure the rights guaranteed by
                                      the treaty only to persons in its own territory or subject to its juris
                                      diction. That concept is certainly broad enough”tb’include territory
          .4’                         occupied by a belligerent in time of armed conflict. Tie European
                                       Court and Commission of Human Rights have held that
                                               the responsibility of a Contracting Party may also arise, when,
                                               as a consequence of military action whetherIawful o
                                                                                                —
                                               unlawful It exercises effective control of an areâ outsde its
                                                           —
                                               national territory. The obligation to secure, intii an rea,
                                               the rights and freedoms set out in the Conventioh, deri’,es from
                                               the fact of such control whether it be exercised directl$
                                               through its armed forces, or through a subordinate local
                                               43
                                               administration.                                                      /
                                      48       It is another matter, however, to treat persons in enemy
                                      territory as subject to the jurisdiction of a belligrent simply because
                                      those persons are present in territory which that belligerent subjects
                                      to attack. To say that in early 1991 thepopulation of Baghdad was
                                      subject to the jurisdiction of tpiose coalition States which were
                                      engaged in aerial bombardmnt of targets in lraq would be to stretch
                                      the concept of jurisdiction well beyond the normal meaning of that
                                      ter?n.     4
                                      was given as an example of a taking of life which would not be arbitrary within the
                                       meaning of that provision.
                             42.      Advisoiy Opinion on the Legality of the Threat or Use of Nuclear Weapons,
                                       International Court of Justice Reports, 1996, 225 at240, para. 25.
                             43.       Loizidou v. Turkey (Preliminaiy Objections), 103 ILR 622 (1995); 20 EHRR 99, para.
                                       62 (European Court of Human Rights). See also the decision of the Court in the
                                       merits phase, 108 ILR 443 (1996); 23 EHRR 513, para. 56, and the decision of the
                                       European Commission on Human Rights in Cyprus v. Turkey (25781194)23 EHRR
                                       244 at 274.
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<pre> Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                 Greenwood -23   -
                                        49       Secondly, many provisions in human rights treaties are of a
                                        very general nature and add littie or nothing to the detailed
                                        provisions of the laws of war. This is particularly true of the
                                        provisions on the right to life. Thus, in the Nuclear Weapons
                                        AdvisoryQpinion, the lntemajnal Court of Justice, having stated
                                        that the right not arbitrarily to be deprived of one’s life applies in
                                        hostilities continued:          .4
                                                fe test of what n      Øary deprivation of life, however
                                                                       1
                         7
                                        \       then falls to be determined by.,applicable!ex specialis,
                                           \ namely the law applicable in aronflict which is designed
                   r.                           to regulate the conduct of hostilitfs’ 1us whether a particular
                                                loss of life, though the use of a certin weapon i’n warfare is to
                                                be considered an arbitrary deprivation of lifontrary to
                                                Article 6 of the Covenant, can only be deoî by eference to
                                                the law applicable in armed conflict and no duced from the
                                                terrns of the Covenant itself  44
        1                               50      What this passage suggests is that insteadJhe treaty
                                        provisions on the right to life adding anything to the laws of war, it is
                                        the laws of war which may be of assistance in appLyig provisions on
                                       the right to life
                                       51       Nevertheless there are a number of ways in which the law of
                                                                                                                        /
                                        human nglits is likely to beof importance for th conduct of
                                        hostilities First, the scope of human rights law is fn some respects
                                       broader than that of the laws of war Thus th, laws of war do not
                                       normally apply toa belligerens treatment of its own nationals and
                                             ie laws of war treaties do not appy$o the treatment of nationals
                                       of neutral States
                                                      46 The sumtpary exéeftion bye belligerent of
                                       deserters from its army or citizens accused of enemy sympathies, or
                                       the detention of nationalsof a neutral State considered to favour an
                                       eiemy would fall to be judged by reference to the relevant human
                                    1  rights law, rather than the laws of war. Secondly, some human
                                       rights provisions might be used to assist in the interpretation of laws
                             44.       Loc. cit. note 41, above.
                             45.       That was the approach taken by the Inter-American Commission of Human Rights
                                       in reiation to aiieged violations of the right to iife occurring in what It held to be an
                                       internai armed conflict; AbeIIa v. Argentina, Report No. 55/97, para. 161.
                             46.       For exampie, the definition of a protected person under Article 4 of the Fourth
                                       Geneva Convention, 1949, excludes natiorials of a neutral State in the territory of a
                                       beiiigerent so long as the neutrai State retains normal diplomatic relations with that
                                       beiligerent.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                               Greenwood -24-
                                       of war provisions. For example, the requirement in Article 84 of the
                                       Third Geneva Convention, 1949, which stipulates that “in no
                                       circumstances whatever shail a prisoner of war be tried by a court of
                                       any kind which does not offer the essential guarantees of
                                       independence and impartiality, as generally recognized” invites
                                       reference to the law of human rights as a guide to the guarantees
                                      which are generallyrecognized. Thirdly, human rights law is likely to
                                       be of particular irnportance 1h th&ase of belligerent occupation,
                                      where, as will be seen, the lawsofware somewhat outdated.
                                       Finally, the enfct machinery w$li forms part of some human
                          r            rights treaties may offer aq additional means for ensuring
                                      compliance with the laws of war, especially in non-international
            t
                                      armed corifijcts.
                                                47                    1                                                          0
          /                           52      The second area of relevance is international environnental
         /
                                      law. There are, of course, specific provisions on ïhnvirorjment in
                                      the more recent treaties on the laws of war          8 Th                 catio, of
                                      principles of general international environmental law tthe cônduct
                                      of hostilities, however,’ has recently been the su bjct om uch
                                      49 Principle 24 of the Rio Declaration states that:
                                      comment
                                      -       Wgrfare is inherently destructive of sustainabÎ&development.
                                              States shail therefore respect international law providng
                                              protetion for the environment in times ormed conflict and
                                              cooperate in its further development asnecëssary!
                                      53      This has ed to suggestions that a State engaged in an armed
                                      conflict rnist comply in full with the provisions not only of the laws of
                                      war but also the whole body of the environmental treaties to which
                                      that State is party.                                     //
                             47.      This matter is considered further in Part VI of this report.
                             48.      United Nations Convention on the Prohibitiori of Military or any other Hostile Use of
                                      Environmental Modification Techniques, 1977; Additional Protocol 1 to the Geneva
                                      Conventions, Articles 35(3) and 55. In addition, a number of other treaty provisions
                                      regulate maffers of direct environmental concern; e.g., the prohibftion of wanton
                                      destruction of property in Article 23(g) of the Hague Regulations on the Laws and
                                      Customs of War on Land and the rules on attacks on dams, dykes and nuclear
                                      electrical generating stations in Article 56 of Additional Protocol 1.
                             49.      See, e.g., United Nations General Assembly Resolutions 47/37 and 49/50, United
                                      Nations Doc. N49/323 (‘Guidance for Military Manuals and Instructions on the
                                      Protection of the Environment in Times of Armed Conflict’), G. Plant, Envimnmental
                                      Protection and the Law of War (1992) and Grunawalt, King and McClain, Protection
                                      of the Environment during Armed Con flict (1997).
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<pre> Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                Greenwood -25    -
                                        54       In the Nuclear Weapons Advisory Opinion, the International
                                         Court of Justice stated that the environmental treaties were not
                                        intended to deprive a State of its right to self-defence but went on to
                                        state that:
                                                Nonetheless States must take environmental considerations
                                                into account when assessirig what is necessary and
                                                proportionate in the pursuit of legitimate military objectives
                                               spect for the environrnent is one of the elements that go to
                                           asessing whether an action is in conformity with the principles
                                         \Vof necessity and proportionaIitj’
                   /
                                        55      The notion that there is a general obhgation to have regard to
                                        the protection of the environment in the conduct of military
                                        operations also finds support in the new edition of the United States
                                        Naval Commanders Handbook which states that
                                                It is not unlawful to cause collateral damage to the natural
                                               environment during an attack upon a legitimate military
                                               objective However the commander has ari affirmative
                                               oblrgation to avoid unnecessary damage to the el-ivironment to
                                               the extent that t is practicable to do so consisteiM with mission
                                               accomplishment To that end and as far as military require
                                               ments permit, methods or means of warfare should be
                                               employed with due regard to the protection and preservation of
                                               the atural environment Destruction of the natural
                                               environment not necessitated by mission accomplishment and
                                               carried out wantonlyis prohibited Therçe, a commander
                                               should consider the environmental damge Which will result
                                               from an attack on a leg itimate military objective as one of the
                                               factors during targeting analysis
                                                                               5t                            /
                                       56      The evolution of the law of hUn-un rights and international
                                       environmental law are obviously two of the most important develop
                                       ments in internationat law during the course of the twentieth century
                                       Their potential effect upon the laws of war has however only begun
                                       to be appreciated. It seems likely that this question is one which
                                       deserves further study if an approach is to be developed which
                                       respects the effect of those new bodies of law, while paying due
                                       regard to the special conditions of warfare.
                             50.       Loc. cit., note 26, above, p. 242, para. 30.
                             51.       United States Navy, Annotated Suppiement to the Commander’s Handbook on the
                                       LawofNavalOperations (1997), para. 8.1.3.
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<pre>Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -26-
                               111.2 The Scope of the Laws of War
                                      57       The two Conventions and three Declarations on the Iaws of
                                      war concluded at the 1899 Conference were intended to apply only
                                       in a formal state of war and onlyas between States party to the
                                       relevant agreement. That approach issummed up in a comment
                                       made by Martens at the Conlerence when he said that’in order
                                      clearly to express what is, Iihe view of the Russian Government
                        /             the object of the Conference in this rTfer, 1 can not find a better
                                      illustration than that of a “Mutual lnsurnce Society against the
                                      abuse of farce in time of war” 52 The part4ês to each Convention or
             )
                                       Declaration undertook to observe the provionshereoonly
                                      vis-â-vis one another and only for so long as aI1of1he b1ligerents in
                                      a particular conflict were parties to the relevant Corivention or
                                      53
                                      Declaration.
                                      58       During the course of the century, the international community
                                      has substantially modified its approach to the scope;Dtpplication of
                                      treaties on the laws of war First, the treaties adopted ince 1945
                                      are not confined to application in a formal state of war but apply to
                                      any armed conflict irrespective of whether a formaf state of war
                                      exists or nçt The practice of most States has also been to treat
                                      the old er treaties which ate still in farce and whichrefer to “war” as
                                      applicable to any international armed conflict This development has
                                      been of great importance and benefit Even in 1899 It was not
                                      always easy to determine whether a conflict amounted to war in the
                                      formal sense or not              Durin9 hetwptieth century, the task
                                      became increasinglyiifficult as hostilities were waged on a large
                             52.      Quoted in A. Pearce Higgins, The Hague Peace Conferences (1909), p. 259.
                             53.      See, eg., Articie 2 of the Convention on the Laws and Customs of War on Land and
                                      Article 11 of the Convention for the Adaptation of the Geneva Convention to
                                      Maritime Warfare.
                             54.      See, e.g., common Articie 2 of the Geneva Conventions, 1949.
                             55.      in 1883 a United Kingdom Government committee investigating the possibiiity of
                                      constructing a channei tunnel was informed that out of 117 conflicts occurring
                                      between 1700 and 1870, hostilities had been preceded by a declaration of war in
                                      oniy ten; Maurice, Hostillties without Declaration of War (1883). The tunnel was not
                                      buiit for another hundred years. See also F. Grob, The Relativity of War and Peace
                                      (1949).
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                               Greenwood -27    -
                                       scale by States which denied that they were at war              6 The emphasis
                                       on the factual concept of armed conflict has removed an argument
                                       of great technicality and simplified the application of the law of war
                                       treaties.
                                       59      Secondly, general participation or si omnes clauses of the kind
                              .        employed in thel 899 and 1907 treaties have not been in general
                                       use since the 1929 revision of the Geneva Conventions Although a
                        7              State party to a treaty on the laws of iar is bound to apply that
                                       treaty only with regard to other States’party (or, in the case of the
                                      Geneva Conventions and Additional Protocol 1, States which have
                                       undertaken to apply the provisions of the relevant agreement even
                                      though they have not forrnally become party), the entry into a conflict
                                      of a State not party to a particular convention notonger affects the
                                      relations between those belligerents which are parties While the
                                      older treaties of 1907 (most of which remain in forc) have iot been
                                      amended, their importance today is as statements fiustoriiary
                                      international law and their general participation clauss hav
                                      therefore become largely irrelevant.
                                      60      In general, the changes which have occurredmn the sçope of             /
         \         ifr
                                      application of the laws of war have given rise to few difficulties.
                                      Nevertheless, certain matters require comment.
                                                                  /                          4k’
                                      (a)     The Concepts of War and Armed Conflict
                                      61      The existence of a formal state of war has now become almost
                                      entirely irrelevant for the application of the laws of war, although a
                                      declaration of war by a State which dDes not then engage in active
                                      hostilities (as was the case with some of the belligerents in the
                                      Second World War) will have the effect of bringing into force for that
                                      State the provisions of the Geneva Conventions and other rules of
                                      the laws of war, which may be of importance if that State intems
                                      enemy aliens or takes certain measures regarding enemy property.
                                      62      The concept of an armed conflict is not defined in any of the
                                      treaties on the laws of war. There is, however, powerful support for
                            56.       For example, the hostilities in the 1930’s between China and Japan. See
                                      Greenwood, loc. cit. note 18, above.
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<pre>Centennial of the First international Peace Conference                                                  PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                               Greenwood -28   -
                                       the view that it should be given a very broad interpretation. The
                                       authoritative commentary on the 1949 Geneva Conventions,
                                       published by the ICRC, states that:
                                               Any difference between two States and leading to the inter
                                               vention of members of the armed forces is an armed conflict
                                          ,,--within the meaning of Aiicle 2 [common to the four Geneva
                                               Conventionsi, even if one of the parties denies the existence of
                                               a state of war It makes no difference how long the conflict
                                               lasts, how much slaughtertakes place or how numerous are
                                                     participatingforces
                                               the
                                       63      A similar view has been expressed by the Appeals Chamber of
                                       the International Criminal Tribunal for Former Yugoslavia in its
                                       decision in Prosecutor v Tadic (Junsdiction) in which It stated that
                                        an armed conflict exists whenever there is a resort to armed force
                                       between States ‘58
                                       64      There is also some support for this approa:hinState practice
                                       The United States for example considered that arfed cönflict
                                       triggering the application of international humanitann ipw had come
                    -                  into being between itself and Syria when Syrian anti-aircraft batteries
                                       in Lebanon shot down a United States naval aircraftin 1983 and
                                       captured the pilot59 It seems however that Stateractice is not
                                       always consistent on this point and that States kae freqØently
                                       disputed the existence of an armed conflict w$-dhey hve been
                                       engaged in incidents of short duration invol\ the use of
                 \          \          comparatively small numbers of troo                          /
                                                                                                        /
                                       (b)     Unîted Nations Operations
                                                                                                  /
                                       65      The question whether there is an armed conflict is particularly
                                       likely to cause difficulty when United Nations forces are involved.
                                       The applicability of international humanitarian law to United Nations
                                       forces has been debated for many years. There are obvious
                                       difficulties in that the United Nations is not a party to any of the
                                       Conventions on the laws of war and that, not being a State, it lacks
                             57.       J.S. Pictet (ed)., Commentaîy on Geneva Convention lii (Geneva, 1CRC, 1960),
                                       p. 23.
                             58.        Decision of 2 October 1995, 105 ILR 419 at 453, para. 70.
                             59.       Digest of United States Practice in International Law 198 1-88, volume III, p. 3456.
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<pre> Centennial of the First International Peace Conference                                                    PRELIMINARY REP0RT
 Humanitarian Law and Laws of War                                                                                Greenwood -29-
                                     j  the capacity to carry out some of the obligations of the laws of war
                                        itself. For example, the United Nations has no courts or criminal law
                                        of its own and cannot itself punish a member of a United Nations
                                        force for a violation of the laws of war. Instead, it has to depend
                                        upon each State contributing troops to a United Nations operation to
                                        enforce the law amongst the menibers of its own contingent.
                                                 -r
                                        66        Neverthetéss, t appears that there is no longer any doubt that
                                        the laws of war apply to a United Natns enforcement action which
                                        is designed to engi in hostilities in arder to restore international
                                        peace and security. In the Korean conflict, after some initial
                                        hesitation the United Nations Unified Command instructed its forces
             1
                                        to corn ply with all four Geneva Conventions not ifistancing that
           /                            they were not then in force for some of the contç4utr Stâtes While
                                        there remained an element of doubt as to whether the United
                                        Nations corisidered that its forces were bound by the treaties or
                                       were merely required to comply with the principle&anspirit of the
                                        Conventions 60 a leading study has pointed out thre is, in fact
                                        no known case in whiöh the United Nations Commaid bver claimed
                                        exemption from any of the accepted rules of the laws of war,,
                                        customary or conventionaF’.
                                                            61 Since the time of thèl<oreaniconflict,
           k   •                       the applicability of the laws of war to cases in which Ünited Nations
                                       forces are a party to an international armed conflict has been
                                       generally accepted 62 Similarly when the United Nations authorizes
                                       military action (as in the Gulf conflict) by StatGs which themselves
                             60        S Bailey How Wars End (1982) vol II p 444
                                                                                   b
                             61%       D Bowett,UnitedNationsForces(1964) p 56
                             62.       It is tacitly recognized by Article 2(2) of theConvention on the Safety of United
                                       Nations and Associated Personnel, 1994, which provides that:
                                                   This Convention shali not apply to a United Nations operation authorised
                                                    by the Security Council as an enforcement action under Chapter Vii of the
                                                   Charter of the United Nations in which any of the personnel are engaged as
                                                   combatants against organized arrned forces and to which the law of inter
                                                   national armed conflict appiles. (emphasis added)
                                       See also Bowett, op. cit., pp. 484-516, ICRC, Symposium on Humanitarian Action
                                       and Peace-Keeping Operations (Geneva, ICRC, 1994), D. Shraga in L. Condorelli
                                       and others, eds., The United Nations and International Humanitarian Law (1996), p.
                                       321 and the two resoiutions adopted by the Institut de droit international, Resolution
                                       on the Conditions of Application of Humanitarian Rules of Armed Conflict to
                                       Hostilities in which United Nations Forces may be Engaged, adopted at Zagreb in
                                       1971, 54 (II) Annuaire de l’institut de droit international (1971), p. 465, and the
                                       resolution on the Conditions of Application of Rules other than Humanitarian Ruies,
                                       of Armed Conflict to Hostilities in which United Nations Forces may be Engaged,
                                       adopted in Wiesbaden in 1975, ioc. cit., vol. 56 (1975), p. 540.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -30-
                                       become party to an armed conflict, there is no doubt that those
                                       States are subject to the laws of war.
                                       67      The problem lies in determining when a United Nations force
                                       shouldbe regarcied as a party to an armed conflict. This task has
                                       become increasingly difficult as th United Nations has embarked
                                       uponcperations which have elements of both enforcement action
                                       and more fradional’peacekeepi.. In some of these operations
                         7
                      t
                                       (noticeably those in the former YtJjia and Somalia), United
                                       Nations forces, and riational or NATesassociated with them,
                /                      became involved in fighting on a scale wh would undoubtedly
             r
              /                        have constituted an armed conflict under the criteria seout in the
                                       preceding section of this Report 1f States alone4tI been involved.                         0
                                       There was, nonetheless, great uncertainty regardjn whether the
                                       United Nations forces and those associated with them were party to
                                       an armed conflict and, if they were, whether that arhid conflict was
       1                               international in character, given the status of the fôs against
                                       which the United Nations contingents were engaged.
                                       68      The reluctance to acknowledge that a United Nations force has
                                       become engaged in an armed conflict is likely to beincreased by the
                                       entry into force of the 1994 Convention on the Saety of United
                                       Nations and Associated Personnel. In most ciiümstancØs, the
                                       effect of Article 2(2) of that Convention is thatir the law of
                                       international armed conflict (i.e. the mainbody,of the Iaws of war, as
                                       opposed to the much shorter body of law applicable to
                                       non-international conflicts) applies’to ‘iJnfted Nations operation,
                                       then the Safety Convention w111 not aply. Since that Convention is
                                       designed to protect United Nations and associated personnel from
                                       attacks, there will be an understandable reluctance to admit that a
                                       United Nations force has become involved in fighting to such an
                                       extent that the laws of war have become applicable and the
                                       protection afforded by the Convention has thus been removed.
                                       69      The United Nations has accepted that United Nations forces
                                       should at all times comply with the “principles and spirit” of
                                       humanitarian law. This approach is now embodied in the model
                                       agreement drawn up for use between the United Nations and the
                                       States contributing contingents to the force. Article 28 of the model
                                       agreement provides that the operation:
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                 Greenwood -31    -
                                               • . .shall observe and respect the principles and spirit of the
                                               general internaUonal conventions applicable to the conduct of
                                               milltary personnel. The international conventions referred to
                                               above include the four Geneva Conventions of 12 August 1949
                                               and their Additional Protocols of 8 June 1977 and the
                                               UNESCO Corivention of 14 May 1954 on the Protection of
                                               Cultural Property in the eventof Armed Conflict. [The
                                               contrjbutor State] shali therefore ensure that the members of
                                               its nationat contingent serving with the [operation] be fully
                          /                    acquainted with the principles and spirit of these
                                               Conventions 63
                 /
                                      70       The same agreement requires the oontributing State to
                                      “exercise jutisdiction with respect to cnmes or offences which may
                                      be committed by its military personnel” serving with the operation         64
                                      This requirement would include violations of the principles and spirit
                                      of the Conventions listed in Article 28
                                      71       More recently,
                                                        the United Nations has included’in the Status of
                                                        t
                                      Forces Agreements which it has conciuded with host States in
                                      respect of certain operations a clause by which both the United
                                      Nations and the host State agree to act in accordance with the
                                      principles and spirit of these Conventions. The Agreement between
                                      the United Nations and the Government of the Republic of Rwanda
                                      on the Status of the United Nations Assistance.Mission for Rwanda
                                      (UNAMIR) of 5 November 1993, provided that
                                              Without prejudice to the mandate of UNAMIR and its inter
                                                       nal status
                                              (a) The United Nations shail ensure that UNAMIR shail
                                                           its operations in Rwai with full respect for the
                                                       iples and spirit of the general conventions applicable to
                                                        induct of military personnel. These international
                                                     ventions inciude the four Geneva Conventions of 12
                                                     ‘ust 1949 and theirAdditional Protocols of 8 June 1977 and
                                              the UNESCO Convention of 14 May 1954 on the Protection of
                                              Cultural Property in the event of Armed Conflict;
                                              (b) The Government undertakes to treat at all times the
                                              military personnel of UNAMIR with full respect for the principles
                                              and spirit of the general conventions applicable to the conduct
                                              of military personnel. These international conventions inciude
                            63.       UN Doc. N461185 (23 May 1991). Simiiar provisions had been inciuded in eariier
                                      agreements; see, e.g., the Exchange of Notes between the United Nations and
                                      Canada regarding the participation of Canadian units in UNFICYP, 1966, 555 UNTS
                                      120
                             64.      Art. 25.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                 Greenwood -32-
                                               the four Geneva Conventions of 12 August 1949 and their
                                               Additional Protocols of 8 June 1977;
                                               UNAMIR and the Government shali therefore ensure that
                                               members of their respective military personnel are fully
                                               acquainted with the principles and spirit of the
                                               above-mentioned international instruments.65
                                       72      Similar provisions have subsequently been inciuded in
                                       agreements with Haiti, Angola and Croatia. \
                                       73      There are, however, certain dlffijJties inherent in this
                /                      approach First if events have reached the point at which a United
                                       Nations force is a party to an armed confliöt, then it sh&ld apply the
                                      whole of the Iaws of war, not simply the principle and s,irit of the
                  4’                   Conventions cited. Secondly, it is not dear exactly what the duty to
                                       observe the principles and spirit of the Conventions means:and how,
                                       if at all, it differs from the normal duty to comply wifFrïhe
                                       Conventions in their entirety. Thirdly, the ConventI’refered to in
                                       the model agreement and the status of forces agreeents qüoted
                                       above are not the whole of the laws of war. The model agrement
                                       and status of forces agreements are silent on the question whether
                                       there is a duty to comply with, for example, the custornary law of
                                      war.
                                                                                                                   //
                                       74      Several attempts have been made to g                          ontent to
                                                                                                             6
                                                                                                             ater,
                                      the undertaking to respect the “principles an pirit” of the
                                       international humanitarian law coi                               1995 the Special
                                       Committee on Peace-keepinc                                   luested the
                                       Secretary-General                                  of conduct for peace-keeping
                                       personnel consistentwh applic’ble international humanitarian law,
                                       so asto ensure the highest standards of conduct         6 That same year,
                                       a  meeting     of Experts    convened      by the ICRC produced a preliminary
                                       report on the subject.
                                                          67 In 1996 the ICRC submitted to the
                             65.       Quoted in Shraga, loc. cit. note 46 above, at p. 325, note 16. The Agreement was
                                       also communicated to the Rwanda Patriotic Front (at that time the forces flghting
                                       the Government of Rwanda, the RPF overthrew the then Government in 1994)
                                        which confirmed its readiness to co-operate in the implernentation of its provisions’,
                                       Report of the Secretary-General of the United Nations, UN Doc. 5/26927, 30
                                       December 1993, para. 7.
                             66.       UN Doc. A150/230, 22 June 1995.
                             67.       ICRC, Report of a Meeting of Experts on the Applicability of International
                                       Humanitarian Law to United Nations Forces (Geneva, ICRC, 1995).
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<pre>Centennial of the First International Peace Conference                                                    PREIJMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -33-
                                       Secretary-General a 32 paragraph set of draft guidelines based on
                                       the proposals of the Meeting of Experts. Those guidelines in turn
                                      formed the basis for a draft directive on international humanitarian
                                       law prepared by the Secretariat of the United Nations in 1997. The
                                       draft diregive has not yet been issued in final form.
                                       75      The number of United Nations operations in the last ten years
                                       and $he complexity of some of them mean that uncertainty about the
                                       legal regime applicable is poteritially dgerous Itis suggested that
                     1
                  /                   the law appilcable to United Nations rt4ltary operations should be
                1
                                       reconsidered ,In particular, the priority should be                 -
                                      a        to clarafy the circurnstances in which a United Nations force is
                                               to be regarded as party to an armed confIsand to reaffirm
                                               that when it is to be so regarded, it is subjecttb the whole of
                                               the laws of war; and
                                       b       where a United Nations force is not party to anrmed’conflict
                                               but is nevertheless engaged in hostilities, tcthe greatest
                                               possible content to the obligation to observe tie principles and
                                               spirit of humanitarian law.
                                      The Conduct of Hostilities in Internatjonal Armed
                                      Conflicts
                                      76       The 1899 and 1907 Conferences considered almost the entire
                                      field of the law applicable to international armed conflicts Much of
                                      that law was subsequently revised and refined in the 1949 Geneva
                                      Conventions and Additionat Protocol 1, 1977 For the most part the
                                      detailed legal regimes for the wounded sick shipwrecked and
                                      prisoners of war, which are now contained in the first three 1949
                                      Conventions, have given rise to few problems and the development
                                      of this body of law can reasonably be regarded as one of the
                                      achievements of international law during the century which
                                      succeeded the 1899 Conference. A particularly important
                                      development in this regard was that it became established that the
                                      Conventions conferred rights upon the individuals whom they sought
                                      to protect and not just upon the States on whom those indMduals
                                      depended.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REP0RT
Humanitarian Law and Laws of War                                                                                Greenwood -34-
                                       77      WhiIe It is not pretended that these Conventions are perfect,
                                       there is no need for any radical revision at this point in time. Such
                                       weaknesses as exist in this area of the law stem not from a
                                       deficiency in the basic legal regime itself but rather from the difficulty
                                       of ensuring compliance with that regime. The issue of compliance is
                                       considered in Part VI of this Report. It is not proposed, therefore, to
                                       consider the first three Geneva Conventions further in this Part of
                                      the Report.
                     /
                       /
                  /                    78      Instead, attention will be focussed upon five areas of the law
                                      which were the subject of much discussion in 1899 and which
                                       continue to give rise to difficulties today:
                                       (1) the entitlement to combatant status;
                                       (2) the law of weaponry;
                 ‘4
                                       (3) the law of targeting;
                                       (4) belligerent occupation; and
                                       (5) navalwarfare.
                                                                                                          fl1
                               IV.1 Entitlement to Combatant Status
                                      79       In corsidering the question who is entitle 1 ke a direct part
                                      in hostilities and, consequently, to be treated as risoner of war
                                      upon capture, the 1899 Conference faced a dIernma which stili
                                      exists today and which has become no easier to resolve. On the
                                      one hand, a dear distinction between .combatants and civilians is
                                 ‘essential if the latter are to receive:the protection which the law
                                      requires. On the other hand, many States. especially those with
                                      comparatively small armed forces, rely upon popular resistance to an
                                      invader or an occupation army for their defence. Resistance
                                      movements of that kind are not organized in the same way or to the
                                      same degree as regular armed forces and frequently cannot be
                                      distinguished from the civilian population to the same extent. Should
                                      they, therefore, be treated as Iawful combatants.
                                      80       The 1899 Conference was unable to reach full agreement on
                                      this question. The test of combatancy which was laid down in
                                      Articles 1 and 2 of the Regulations on the Laws and Customs of War
                                      on Land made some concessions to the concept of popular
                                       resistance. Article 1 provided that:
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<pre> Centennial of the First international Peace Conference                                                   PRELIMINARY REPORT
 Humanitanan Law and Laws of War                                                                                 Greenwood -35-
                                               The Iaws, rights and duties of war apply not only to the army
                                                but also to militia and corps of volunteers, fulfilling the following
                                               conditions:
                                                1.      that of being commanded by a person responsible for his
                                               subordinates;
                                               2.. ..that of havingadistinctive emblem fixed and
                                               recognizable at a distance;
                                               3.                                    openly; and
                                                                                                tions in accordance with the
                                       81      In additiori, Article 2 recognizedU)tombataritstatus of
               //                       members of a levee en ,nasse, in territory not yet occupied who
                                       “spontaneously take up arrns to resist the invadir         9 troos without
             /
                   7                    having had time to organize themselves in accordahce with
                                       Article 1” provided that they respect the Iaws anti itom of war
                                       Nevertheless more ambitious proposals to recogruze the combatant
                                       status of irregulars in a wider range of circumstartçjwere not
                                       adopted and it was the failure to agree upon these lattér proposals
       i                               which particularly prompted the inciusion in the PtéWbIe ofhe
                                       Martens Clause 69 Moreover the extension of combatnt status to
                                       volunteergroups and other irregulars in Article 1 ess signficant
                                       than it might appear since the conditions which that Ârticle requires
                                       irregular corn batants to meet are so exacting that few resistance
                                       movements have ever been able to comply withthem.
                                       81      The 1899 test of combatancy survived largely urichanged until
                                 j_41977 The 1907 Regulations did potiter Article 1 but added the
                                       further requirement n Article 2trnembers of alevee en masse
                                       had to carry arms openly. TheThird Geneva Convention, 1949,
                                       Article 4A, added that pérsons who met the criteria in Article 1 of the
                                       Regulations were entitled to be treated as prisoners of war on
                                       capture ‘ven 1f the rnovement to which they belonged was operating
                             68.       The authentic French text reads:
                                       Les bis, les droits et les devoirs de la guerre ne s’appiiquent pas seuiement
                                       i’armée, mais encore aux milices et aux corps de volontaires réunissant des
                                       conditions suivantes:
                                       1.         d’avoir â leur tete une personne responsibie pour ses subordonnés;
                                       2.         d’avoir une signe distinctif fixe et reconnaissabie â distance;
                                       3.         de porter les armes ouvertement; et
                                       4.         de se conformer dans leurs opérations aux bis et coutumes de la guerre.
                             69.       See page 8, above.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -36-
                                                         ° In practice, however, this change was of littie
                                       in occupied territory.
                                                         7
                                       importance, since the criteria in Article 1 have usually been
                                       interpreted in such a way that few, if any, guerrilla groups or
                                       resistance movements could comply with them. The British Manual
                                       of MiIita,y Law, for example, interpreted the requirement of a fixed,
                                       distinctive sign as meaning that “something less than a complete
                                       uniform will suffice, but went on to state that:
                                                   it is reasonable to expect that the silhouette of an irregular
                                               corn batant in the position of stapding against the skyline
                                          \ should be atonce distinguishabfrom the outline of a
                                               peaceful inhabitant, and this by the naked eye of an ordinary
                /                              individual at a distance at which the form of an individual can
                                               be determined.
                                                    71
              /                        82      It is difficult to imagine any guerrilla movement being able to
           /1                          comply with this requirement and survive.
                                       83      Additional Protocol 1, 1977, adopted an entirely new approach.
                                       It abolished the formal distinction between regular’fld.irreguIar
                                       armed forces and provided that “the armed forcest                            artyto a
                                       conflict consist of all organized armed forces, groupé ard units which
                                       are under a command responsible for its subordinates”7  2 Article
                                       44(3) then went on to provide:
                                               In order to promote the protection of the civiIin population
                                               from the effects of hostilities, combatants aobliged to
                                               distinguish themselves from the civilian.pi!$puJation while they
                                               are engaged in an attack or in a militareration preparatory
                                               to an attack. Recognizing, howeveh’tfhere re situations in
                                               armed conflicts where owing toheiiture of the hostilities an
                                               armed combatant cannot so dijruish himself, he shall retain
                                               his status as a combatant, provided that, in such situations, he
                                               carries his arms openly:
                                                                                                                                  c
                                               (a) during each military engagement, and
                                               (b) during such time as he is visible to the adversary while
                                                        he is engaged in a military deployment preceding the
                                                        launching of an attack in which he is to participate.
                                               Acts which comply with the requirements of this paragraph
                                               shall not be considered as per[idious within the meaning of
                                               Article 37, paragraph 1 (c).
                             70.       The decision in United States v. List, 15 Ann Dig 632, had cast doubt upon the
                                       applicability of Article 1 to groups in occupied territory, although It is only Article 2
                                       which expressly excluded such groups.
                             71.       Manual of Militaiy Law, Part III (1958), para. 92. This passage had       first appeared
                                       just after the 1899 Conference.
                             72.       Article 43(1).
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                 Greenwood 37
                                                                                                                           -    -
                                       84       The second sentence of this Article was the product of a last
                                       minute compromise negotiated between delegations which otherwise
                                       had littie in common. It has been widely criticised both for its
                                       cumbersome structure and for reducing the requirement for a
                                       combatant to distinguish himself from the civilian population. Much
                                ‘7,,
                                       of that criticism is justified. The two tier test in the two sentences of
                             t,
                                       Articie 44(3) is cumbërs&ne It léaves important questions about
                        t
                          /            when the lower standard in the seQentence is applicable and
                      t
                   ‘t
                                       what t                            That has ônsome States to make
                                       declarations, uçon ratification, that the second sentence is
                        4?             appilcable only in occupied territory or wars of 73            “nationailiberation”
                                       and that sub-paragraph (b) applies to the time when the combatant
                                       is moving to a place from which an attack is to
                                       Others have argued for a wider interpretation. 3
                                                                  1
                                       85       Nevertheless, the new Article 44(3) is not unWkable. The
                                       lower standard in the econd sentence is not of gen                iJ apphcation,
                                                                                                         9
                                       for t operates only in &nditions where compliance                          the tricter
                                       requirements of the first sentence is impossible. Even where the
                                       standard in the second sentence is appllcable, ititiires that the
                                       irregular carry arms openly during an attack andfqçsome time prior
                                       to the attack. The interpretation, advanced bym groiips, that all
                                       that is required is to produce weapons immedty before opening
                                       fire has no basis in law and is clearly copaF3tthe text. Moreover,
                                       1f the provisions of Article 44(3) go tooTaibréTaxingthe
                                       requirements of combatancy and usbe sId to end anger the
                                       civilian p6pulation, the 1 90j             9tést was aIs6 inadequate to
                                       protect tht population, be e It imposed conditions with which
                                       irregulars could not ompiy and thus offered no inducement to
                                       corn ply with other aspects of the law. It must also be borne in mmd
                                       that the new rules on combatancy do not involve any acceptance of
                                       terrorist methods of warfare attacks upon the civilian population
                                                                             —
                                       and indiscriminate attacks are outlawed by Article 51 of the
                                       Additional Protocol as well as by customary international law. It is
                                        important not to confuse the question of who may lawfully engage in
                              73.       As defined in Article 1(4) of Additional Protocol 1.
                              74.       See, most recently, the statements to this effect by the United Kirigdom when it
                                        ratifled the Protocol on 28 January 1998.
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<pre>Centenniai of the First international Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -38   -
                                       hostilities with the quite different question of what methods of
                                       warfare they may employ when they do so engage.
                                       86      The standards laid down in the Additional Protocol on this
                                       question have not really been tested in practice. While the second
                                       sentence of Article 44(3) is far from ideal, the record of the
                                       negotiations of the Protoçol suggests that it would be extremely
                        /              difficult to secure agreerhent upi a better text today Since the text
                                       is not unworkable It IS suggested tItbe best course is to leave It
                                       alone seeking to interpret it in a ratlo%way and to ensure that all
                                       combatants are encouraged to comply wlth the basic requirement to
                                       distinguishthemselves from the civiliari population duriri military
            /                          operations The controversy over Article 44(3) shws that what was
         14                            an intractable problem in 1899 remains difficult a oe?itury later
                               IV 2 The LawofWeaponry
                                       87      The development of the law of weaponry and mefhods of
                                       warfare payed an important part at the 1899 Conference        75 In
                                       addition to the three specific Declarations (on asphyxiating gases,
                                       expanding ,bullets and projectiles discharged from balloons)         76 and
                                       the prohibition of poison and poisoned weaponsn Article 23(a) of
                                       the Regulations on the Laws and Customs of War on Land) the
                                       Regulations on the Laws and Customsof Warbn Land stated three
                                                  principles:-                          4
                                               that belligerents do not have an unlimited right to choose the
                                               means of injuring the enemy,77
                                               thaj belligerents are forbidden to employ treacherous means of
                                                       or injuring the enemy, 78 and
                                                    --
                             75.       For an historical survey, see F. Kaishoven, ‘Arms, Armaments and lnternationai
                                       Law’ 191 RC (1985-iB) 185.
                             76.       See Part Ii, above.
                             77.       Article 22. The French text states: les beiiigérants n’ont pas un droit illimité quant
                                       au choiz des moyens de nuire i’ennemr.
                             78.       Articie 23 (b).
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<pre> Centenmal of the First international Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                               Greenwood -39-
                                        c         that belligerents are forbidden to employ arms, projectiles or
                                                  material of a nature to cause superfluous injury or unnecessary
                                                  suffering.
                                       88         This statement of the general principles remains important and
                                       has been reaffirmed in Additional Protocol t, Articles 35 and 37.
                                       Althotgh it did not include a provision to this effect in the
                                       Regulations the Coriferetce evidently considered that weapons
                       F               which were inherently indiscriminate should also be prohibited and It
                                       was on this basis that tt adopted the *pJdbition on projectiles
                                       discharged from balloons 80                              A
             II
                                       89        Subsequent years saw the adoption of the Geneva Chemical
                                       and Bacteriological Weapons Protocol 1925 prohibiting the use of
                                       asphyxiating poisonous or other gases, all analogous liquids,
                                       materials or devices, and bacteriological methods of warfare. This
                                       prohibition on the use of chemical and biological wapons was
                                       reinforced many years later by the Converition on terohibjtion of
                                       Development, Production and Stockpiling of Bacteri3loical and
                                       Toxin Weapons 1972which prohibited the possession of 1
                                       bacteriological and toxin weapons and the Chemicat Weapons
         ‘
                 ¼.                    Convention 1993 which prohibited the possession and use as a
                                       means of warfare of chemical weapons The United Nations
                                       Convention on the Prohibition of Military or any Other Höstile Use of
                                       Environmental Modification Techniques, 1977 prohibited the use of
                \                     weapons intended to change the environment through the deliberate
                                      manipulation of natural processes                                  /
                                      90         Finalty a United Nations conference held in 1980 adopted the
                                      United Nations Convention on Prohibitions or Restnctions on the
                                      Use of Certain Conventional Weapons, 1981, the three original
                                      Protocols to which prohibited the use of weapons which injured with
                            79        Articie 23(e), the French text of which reads:
                                      Outre ies prohibitions étabiies par des Conventions spéciaies, ii est notamment
                                      in te rd it:
                                      (e)          d’employer des armes, des projectiles ou des matières propres â causer
                                      des maux superfius.
                                      The French term ‘maux superfius’ has sometimes been transiated as ‘superfluous
                                      injury’ and at other tirnes as ‘unnecessary suffering’. The English text of Additionai
                                      Protocoi 1, Articie 35(2), which reaffirms the principie in Article 23(e) of the
                                      Regulations on the Laws and Customs of War on Land, employs both terms.
                            80.       See page 10, above.
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<pre>Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood -40   -
                                       fragments which cannot be detected by x-rays (Protocol 1) and
                                       imposed certain restrictions on the use of mines and booby traps
                                       (Protocol II) and incendiary weapons (Protocol III). A subsequent
                                       review conference in 1995-96 adopted an amended Protocol II on
                                       mines and a new Protocol IV on laser weapons. FinaNy, a
                                       convention outlawing anti-personnel land mines (which for some
                                                                                ided Protocol II to the Weaponry
                          /
                        /
                                                This record is not particularly impressive. In the century since
                                       the 1899 Conference, the advances in military technology have been
                                       enormous. The law, however, has changed little. Apart from the
                                       important developments of the law in relation toemicaI and
                                       biological weapons (by the treaties of 1925, 1972 and 1993) and the
                                       recent developments in restricting or prohibiting the use of anti
                                       personnel land mines, the treaty law has added liftlê to the general
                                       principles The general principles have remained s11ficantand
                                       their continued validity was recently reaffirmed by thJnternational
                                       Court of Justice in the Nuclear Weapons Advisor9 Opinlon. Vet a
                                       1973 survey of the law on weaponry by the United Nations
                                       Secretariat cited bayonets or lances with barbs, irreular shaped
                                       bullets and projectiles filled with glass as examples of weapons
                                       consideed to be outlawed by the unnecessa ‘ufering principleY                1
                                       Scarcelystandard weapons atthe beginnin                                twentieth
                                       century, these were museum pieces by its eil Similarly, leading
                                              books still refer to the unnecessary sJflerlFig principle as
                                               iing that “carinons must not be led with chain shot, crossbar
                                       shot, red-hot balis, and the lîke”.   2 Such examples suggest that the
                                       law is firmly rooted in the nineteenth century.
                                       92       Vet it would be wrong toiîderestimate what has been
                                       achieved. The use of chemical weapons was widespread during the
                                        First World War and the threat of biological weapons was a very real
                                       one. Although such weapons have not yet wholly disappeared from
                                       the battlefield, the record of compliance with the 1925 Protocol has
                                        been better than that of most treaties on the laws of war. Moreover,
                             81.        Respect for Human Rights in Armed Conflicts: Existing Rules of International Law
                                        concerning the Prohibition or Restridüon of the Use of Specific Weapons, United
                                        Nations Doc. A/9215, vol. 1, p. 204 (1973).
                             82.        H. Lauterpacht, Oppenheim’s International Law (7th ed., 1952), vol. II, pp. 34-1.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -41    -
                                       the 1972 and 1993 Conventions, with their provisions for disarma
                                       ment and (particularly in the 1993 Convention) verification measures,
                                       offer a real prospect that these weapons of mass destruction can
                                       now be completely removed. 83
                                       93     The new regime for chemical and biological weapons is not
                                       only intnnsically important, italso suggests that the most effective
                                       way to proceed In seeking to ridtheworld of weapons which are
                         /
                                       particularly inhumane is by means ofdisarmament approach,
                                       rather than a simple ban on use or re4cfloq on the man ner in which
                                       a weapon is used. Only în this way can States be given sufficient
              /                        confidence that an agreement to relinquish a particular category of
             /                         weapons will be honoured While the complex arfd intrusive regime
                                       of the Chemical Weapons Convention is likely to pi’Ove acceptable
                                       only for weapons of mass destruction and other weapons of
                                       particular military importance the willingness of the ifernational
                                      community to accept such a regime in respect of ical and
                                       biological weapons and the insistence of the SecuritCouncil on
                                       lraq’s compliance with the disarmament requirerrient df Reolution
                                      687 is an indication of what can be ach ieved.
                                                                      1
                                      94      It wuld also be wrong to dismiss the generincips as
                                      ineffective While it is difficult to point to any wèaen with real
                                      military utility which it is generally agreed has1 outlaWed by the
                                      unnecessary suffering principle, It must be rerft9ribered that this
                                      principle requires a balancing of the rti1itad’antade which may
                                      result from the use of a weaponWi’edégree of injury and
                                      suffering which It is likely to cse. As a Japanese court has stated
                                      “the use of a certain weapon, great as its inhuman result may be,
                                      need not be prohibited by international law 1f it has a great military
                                      84 The prohibition of weapons and methods of warfare the
                                      effect”.
                                      cruelty of which is not matched by the military advantages which
                                      they offer is an important step in preserving humanitarian values in
                                      war. The principle has also served as the inspiration for some of the
                                      specific prohibitions (such as those on blinding laser weapons and
                            83.       This issue is to be deait with at greater Iength in the reports on disarmament
                                      prepared as part of the centenary Commemoration.
                            84.       Shimoda v. The State 32 ILR 626 at 634; see also the Opinion of Judge Higgins in
                                      the Nuclear Weapons case, international Court of Justice Reports, 1996, at pp.
                                      583-5.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood -42   -
                                       weapons which injure with fragments which cannot be detected by
                                       x-rays) which have been adopted.
                                       95      With regard to the general principles, an important
                                       development was the articulation, in Article 36 of Additional Protocol
                                       1, of aduty for each State to examineproposals for new weapons
                                             methods of warfare in order to determine whether their use
                                       and
                                      would violate the pnnciples af the Jaws of war For this to be done
                                       effectavely t would be advantagëbj have a ciearer idea of the
                                       relevant considerations which have foiaken into account in
                                       assessing whether or not the employment of a particular weapon
                                      would be likely to cause unnecessary suffering Te unnecessary
                                       suffering test calls for a weighing of the military Jantaes offered
                                       by a particular weapon against the medical and                           effetts which
                                       that weapon produces The debates on this subject amongst the
                                       Committee of Experts convened by the lnternationaItommtee of
                                       the Red Cross at Lucerne in 1974 and Lugano in 17                               1
                  4                    demonstrated considerable disagreement about the fctors to be
                                       taken into account on either side of this equation
                                       96      A report published in 1997 by the lnternation’rComrrjfttee of
                                       the Red Cross attempts to specify more precise c,4eria for
                   *                   determinang whether a particular weapon causuJ?neceSsary
                                       suffering The approach taken in this Reporb study the medical
                                       effects of existing weapons, the degree to wî theycause death or
                 \                       artacular types of injury and to sugget fd crteriato be used in
                                       determining whether a new weapon inewhich violates the
                                       unnecessary sufferang principte           -
                                       a       does the weapon foreseeably cause specific disease, specafic
                                               abrtormal physiological state, specific abnormal psychological
                                               state specific and permanent disability or specific disfigure
                                               ment?
                                       b       does the weapon foreseeably cause a field mortality of more
                                               than 25% or a hospital mortality of more than 5% (figures
                                               substantially in excess of those caused by weapons in use at
                                               present);
                             85.       international Committee of the Red Cross, Report of the Conference of Government
                                       Experts on the Use of Certain Conventional Weapons, 1sf and 2nd Sessions
                                       (Geneva 1975 and 1976).
                             86.       R. Coupland (ed.), The SIRUS Project: Towards a Determination of Which Weapons
                                       Cause Superfluous Inju,y or Unnecessaiy Suffering (1997).
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<pre>Centennial of the First international Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -43-
                                       c       are the weapons designed to cause particularly large wounds;
                                               or
                                       d       does the weapon foreseeably exert effects for which there is
                                               no well recognized and proven treatment?
                                      97       The identification of these criteria and the medical study on
                                      which they are based is of considerable value in helping to show
                                      how the balanci aot required by the unnecessary suffenng
                                      pnnciple can be made more precise and less anecdotal than at
                                      present It is however important tora1ize that the fact that a
                /c                    particular weaport meets one of these criteria is not, in itself
                                      sufficient to brand it as unlawful without consideration of the military
                                      advantages which that weapon may offer. For example, the fact that
                    4
                                      soldiers cannot take cover from a particular type of weapon will, as
                                      the report points out, heighten the reaction of abhorrence produced
                                      by such a weapon
                                                     87 but t is also the very inability of soldiers to take
                                      cover that means that the weapon will in the language of the 1868
                                      Declaration, disable the greatest possible number df enemy
                                      combatarits and which thus gives it its military effect!veness when
                                      compared with other weapons. Moreover, the Réport donsiders only
                                      the “medical” or “humarjitarian” side of the balance. Greater
                                      precision is also needed in determining what are threlevant factors
                                      to be taken into accountn the military side of the equation           8
                                                                    F
                                      he Law of Targeting                                                    /
                                      98      The question of what is a leeI’e target in warfare is
                                      obviously closely related to that of weaponry and methods of
                                      warfare.’ The 1899 Conference, however, had less to say on this
                                      sJbject. Articles 25-27 of the Regulations on the Laws and Customs
                                      of War on Land j5iôhibited the attack or bombardment of
                                      undefended towns, villages or buildings (Article 25), imposed a
                                      limited obligation upon a commander to wam the authorities of a
                                      town before bombardment (Article 26) and required him to take all
                                      necessary steps to spare certain objects (e.g. hospitals, schools and
                                      charitable institutions) in the course of a bombardment (Article 27).
                             87.      Op. cit., p. 27.
                             88.      See M. Bothe, J. Partsch and W. Solf, New Rules for Victims of Armed Conflicts
                                      (1982), pp. 196-7.
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<pre>Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -44    -
                                       These provisions are very limited in their scope and difficult to apply.
                                       The effectiveness of Article 25 is less than might appear, because a
                                       town can only be regarded as undefended 1f it is open to capture by
                                      the enemy without opposition. The provision is therefore
                                       inapplicable to towns situated behind enemy lines, because, even 1f
                                       they h’e no defences of their own, these cannot be occupied
                                      without sendtng forces through areas where resistance can be
                                       expectéd. ‘Articles 26 and 27 have proved almost wholly ineffective.
                             AÇ        gg      The 1907 Conference left these provlspns largely unchanged
                                       and the Fourth Geneva Convention, 1 949, •fliade only minor
                                       changes, designed to facilitate the creation of hospitafand safety
                                       zones and neutralized zones.   89 Even this modestôbjective has not
                                       been realized, since almost no use has been madbf such zones
                                       since 1949 The Hague Convention for the Protection of Cultural
                                       Property in the Everit of Armed Conflict 1954 and the Protocol
                                      thereto built on the provisions of Article 27 of the                      ulatioris on the
                                       Laws and Customs of War on Land but It was not until the adoption
                                       of Additional Protocol 1 that the customary law rulés ôntargeting
                                      were reduced to writing and supplemented by the adoption of a
                                       number of new (and sometimes controversial) provislons /
                                                                                                                    1
                                       100     It had long been accepted that the customary laws of war
                                       contained two cardinal principles regarding taret)ng                   -
                                       a       that attacks should be directed only at military objectives and
                                               not at civilians or civilian objects (“the principle of distinction”),
                                   tP          and
                                       b       that in attacks upon military objectives there was a duty to                        C
                                               avoid causing dispropo’kionate civilian casualties and damage
                                               (“the principle of proportionality”):
                                                                      °
                                                                      9
                                       lol     The record of compliance with those principles during most of
                                       the twentieth century has been dismal. They were almost universally
                                       disregarded during the Second World War and in most of the
                                       conflicts thereafter.
                             89.       Fourth Convention, Articles 14 and 15.
                             90.       See, e.g., the statement by the United Kingdom Prime Minister, Neviiie
                                       Chamberiain, at the time of the Spanish CMI War, 337 House of Commons
                                       Debates (21 June 1938), cols 937-8 and United Nations General Assembly
                                       resoiution 2444 (1968).
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<pre>Is
    Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
    Humanitarjan Law and Laws of War                                                                               Greenwood -45-
                                           102 Additional Protocol 1 attempted to give greater precision to
                                           these principles in a number of respects:
                                           1       Articles 48, 51 and 52 reaffirm the principles themselves an             —
                                           important step in view of the scale of violations which had occurred;
                                           2       Article 52 attempts to put flesh on the bare bones of the
                                           principle of distinction by defining what is meant by a military
                                           obiectiye:fl
                                                   Insofar abjecteorjemed, military objectives are limited
                                                   to those objects which by1e ure, location, purpose or use
                                             i     make an ettectie contributiö’nary action and whose
                                                   total or partiat destruction, capturor neutralization, in the
                                                   circumstances ruling at the time, offers a definitemilitary
                  /
                /
                                                   advantage.
                                           103     This definition avoids the pitfails of the approach taken in, for
            1                             example, the 1923 Draft Rules on Air Warfare       91 of seeking o list
                                          categories of military objectives.
                                                                        92 Instead, it lays dii$in a two stage
                                          test: (1) does the object make an effective contributT6n (actual or
                                          potential) to the enemVs military action; and if so (Z).isit, in the
                                          circumstances ruling at the time, one whose destruction, capture or
                                          neutralization would offr a definite military advantage. The
                                          reference to the circumstances ruling at the time is particularly
                                          important as it should avoid the approach of treating entire
                                          categories of items (such as bridges) as military objectives in all
                                          93
                                          circumstances.
                                                                    4
                                          104     3       The Protocol also codifies theprinciple of proportionality,
                                          although It does not use that termtIe 51(5)(b defines as an
                                                              attackd)o’Es one prohibited by Article
                                                  An attack which may be expected to cause incidental loss of
                                                  cMlian life, injury to civilians, damage to civilian objects, or a
                                                  combination thereof, which would be excessive in relation to
                                                  the concrete and direct military advantage anticipated.
                                91.       Roberts and Guelif, p. 121.
                                92.       For criticism of the text in Article 52(2) as too vague and open-ended, see A.
                                          Randelzhofer, ‘civilian Objects’ in Bemhardt (ed.), 3 EPIL 93 (1982).
                                93.       Kaishoven, 9 Neths YBIL (1978)107 at 111.
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<pre>Centenniai of the First international Peace Conference                                                    PRELIMINARY REP0RT
Humanitarian Law and Laws of War                                                                                 Greenwood -46-
                                       105 This provision was welcomed at the time as a useful
                                       codification of the principle of proportionality.
                                                                                 94 While any attempt to
                                       determine the content of this principle is problematic, not least
                                       because it requires that a balance be struck between two such
                                       d ifferent Ç:Qn erati0ns asmilitary advantage and civilian losses              5
                                       the aproach taken in the Protocol represents an advance in that It
                                       emphasizes that the military advantage must be “concrete and
                                       direct” Nebulous factors sUch as breaking the morale of the enemy
                                       Stateaenotenough96
                                                                                  ‘U
                  /
                                       106      4       Article 57 translates these principles into a set of
                                       questions which must be asked by a comnander in deciding
                                       whether and how to launch an attack                                                        (
                                       107      Although Additional Protocol 1 was not as such appliçable in
                                       the 1990-91 Gulf Conflict (since lraq was not a p’aifo the Protocol),
                                       the Coalitiøn States treated the provisions set out                          as
                                       declaratory of rules of customary international lawaid announced
                                       that their targeting pohcy would comply with them Whlle thi is not
                                       the place to evaluate that claim the experience of the Gulf çonflict
                                       suggests that the provisions on targeting in Additiorial Protcicol 1 are
                                       workable Rather, therefore, than seeking to reflne those j5rinciples
                                       further at this stage It IS suggested that priority should be given to
                                       ensuring better compliarice with them                                      7
                                                                                                             //
                             94        See eg the statement by the united Kingc$om Representative VI Official Records
                                                           r
                                       164.                                     1
                             95        The test isaiways a reiative one in whlch the harm to the civiiian population must
                                       be weighed against the military advantage Ther Is no justrfication for the attempt
                                       in the ICRO Commentary to introduce an absolute ceiiing beyond which civiitan
                                       casalttes can never be justified The passage in the Commentary which states that
                                                  “The idéahasalsobèen put forward that even 1f they are very high, civilian
                                                  losses and damages may be justified 1f the military advantage at stake is of
                                                  great importance. This idea is contrary to the fundamentai mies of the
                                                  Protocol; in particuiar it conflicts with Article 48 ‘(Basic rule)’ and with
                                                  paragraphs 1 and 2 of the present Article 51 The Protocol does not
                                                                                                    .
                                                  provide any justification for attacks which cause extensive cMlian losses
                                                  and damages. incidentai iosses and damages should never be extensive.”
                                                   (para. 1980)
                                                   is misleading because it appears to confuse the term ‘extensive’, which
                                                  suggests an absolute test, with ‘excessive’, a term which is ciearly reiative.
                                                   However attractive the view in the Commentaty may be from a
                                                   humanitarian viewpoint, It does not accurateiy reflect the text of the
                                                   Protocoi or the underiying principie of customary iaw.
                             96.        Breaking the moraie of the enemy’s armed forces, so that they will be iess able to
                                        resist an attack is a dhfferent matter.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                 Greenwood -47    -
                                       108       In this respect, an important step forward is the increased
                                       likelihood that those who violate the law relating to targeting,
                                       particularly those who deliberately target civilians, will face
                                       prosecution for those acts. The International Criminal Tribunal for
                                      the Former Yugoslavia already has jurisdiction over such acts                 97 and
                                       it is lilely that the International Criminal Court will also do so if that
                                       body is established
                          7
                                                                    ¶
                                       109 Ç1n passing t should also be noted that the principles on
                  /                   targeting stated in the Protocol apply tany warfare which may
                /                     affect the civihar population on land Although usually discussed in
                                      the context of air bombardment and the use of regular forces the
                                      duty to distinguish between the civilian populabÖnd the military
            /
                                      and the requirement to observe the principle of oportionaIity apply
                                      just as much to those conducting guerrilla warfare as they do to the
                                      air force or artillery of the regular armed forces                        the p rohibition
                                                                                                                      1
       ç                              in Article 51(2) of attacks “the primary purpose of
                                      terror among the civilian population” applies to the pJnting of a car
                                      bomb as well as to the activities of a strategic airforce:
                                                                                                                  is to’ spread
                                                                                                                        1
                               IV.4 The Lawof BeiNgerent Occupaton
                                                    4
                                      110         The elaboration of a code for the government of occupied
                                      territory was one of the principal achievern,ritstf the 1899
                                      Conference Articles 42-56 of the Regulatlbns on the Laws and
                                      Customs of War on Land, which re rgely unchanged in 1907,
                                      laid down a framework of principles within whtch a belligerent
                                      occuparit was required to act in goveming occupied temtory Chief
                                      among these were           -
                                      1           the occupant acquirfy temporary control over the
                                                  territory, not sovereignty, and was entitled, and required, to
                                                  exercise the powers of government while respecting, unless
                                                  absolutely prevented, the laws already in force (Articles 42-3);
                                      2           the population of the occupied territory did not owe allegiance
                                                  to the occupying power and could not be required to swear
                            97.       See, e.g., the Rule 61 decision in Prosecutorv. Martic 108 ILR 39. At the time of
                                      writing the Tribunal was hearing a case against Blaskic which involved aliegations
                                               ,
                                      of unlawful bombardment.
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<pre>Centenniai of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -48-
                                                  an oath (Articles 44-5), their lives, honour and property were
                                                  to be respected (Articles 46-7); and
                                       3          the power of the occupant to take or use public and pnvate
                                                  property in the occupied territory were restricted by Articles
                                                 48-56.      ---
                                       111    The und1iØ plciple was that the status quo should be
                           /           preserved as much as possile, so as not to prejudice either the
                        /              population or the displaced sovrg advance of the conclusion
                                      of a peace treaty, hich would deterrIfj3e’-the future of the territory
                                       112       The emphasis in the Regulations on the Laws and Customs
                                      of War on Land was on the governance of the ou pied terntory and
                                      the powers of the occupant with respect to property,:rathèr than the
                                       protection of the civilian population as such The inalequacy of that
                                      approach was graphically demonstrated by the abues comrnitted by
                                      occupying powers during the Second World War (gh the
      4                                regime did not work particularly well during the FirstLorld War
                                      either) The Fourth Geneva Convention 1949 attémpted to ddress
                                      this problem by adding a number of provisions (Articles 27-34 and
                                      47-78) regarding the treatment of the population of iccu pied
                                      territory These provisions prohibit reprisals against the population
                                      collective punishments deportations, hostage-taking and a number
                                      of other practices and are designed to give the cMlian pbpulation
                                      and individual civilians a series of fundarnentaliuarantees relating
                                      to freedon from arbitrary arrest and deterition, conditions of
                                      detention, fair trial and the like “
                                                    F
                                                    4                                                                             0
                                       113       The Fourth Convention does not, however address the
                                      underlying questions about the governance of occu pied terntory or
                                      the powers of the occupant to requisition or make use of property in
                                      the occupied territory. On these questions, the 1899 and 1907
                                      Regulations on the Laws and Customs of War on Land remain
                                      important as a statement of the customary international law.
                                       114       The law of belligerent occupation has had a poor record of
                                      compliance for most of the twentieth century. The principal problem
                                       has been the reluctance of States to admit that the law applies at
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<pre> Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                Greenwood -49-
                                         all. Particularly since the end of the Second World War, States
                                         98
                                         which have occupied territory in the course of a military operation
                                         have denied that their subsequent governance of that territory was
                                         subject to the law of belligerent occupation on a number of grounds.
                                         In many cases, the Stateconcerned maintained that It had a
                                         superior claim to title to the terrbtythan did the State which it had
                                         displaced, so that far from becoming a belligerent occupant, it was
                                         merely regaining possession of its own temtoTy It was on this
                      7/                ground that lraq denied the app cab4of the law of belligerent
                                        occupation to ltsoccupati\on of Kuwtø99O-91, notwithstanding
                                        the universa[oØpositionofthe internatonalommunity to its
                                        claims         Similarly lsrael has denied the applicability de ,ure, of the
                                         Fourth Geneva Convention to the West Bank and the Gaza Strip on
           1                            the grounds that it did not accept that those territories had been part
                                        of the territory of another State prior to 1967 Israel has, hôwever
                                        agreed to épply the humanitarian provisions of the nventon on a
                                        voluntary basis. 100 The Security Council has, howevêr,insisted that
                                        the Convention is applicable as a matter of law and-has made a
                                        number of calls for lsrael to comply with its provisions   101
                                        115        1f the applicability of the law of belhgerent occupation were to
                                        be dependent upon the resolution of the underlyirig question of title
                                        to the temtory concerned, t would almost never be applicable In
                                        fact, neither the Fourth Conventiori nor the ReIatfbns on the Laws
                                        and Customs of War on Land makes it a precopdltion of the
                                        applicability of the law of belligerent occupation that the territory
                                       which is occu pied must have been part o the territory of the
                                       displaced sovereign prior to the cornrneticement of the occupation
                             98        A Roberts ‘What is a Military Occupation 7 55 BYIL (1984) 249 E Benvenisti
                                        The International Law of Occupation (1993).
                             99.       lraq maintained that t had entered Kuwait al the invitation of the Provisional
                                       Government of Free Kuwait and that it had subsequentiy annexed the territory in
                                       accordance with the wishes of that government’ and to give effect to its own claims
                                       to title to Kuwaft; see the Memorandum of the Government of lraq, 12 September
                                       1990, in E. Lauterpacht and Others (eds), The Kuwait Ciisis: Basic Documents, vol.
                                          (1991), p. 73. The annexation was condemned as invalid bythe SecurityCouncil
                                       in Resolution 662 (1990). The Council repeatedly insisted that Iraq should comply
                                       with the relevant provisions of the law of belligerent occupation, especially the
                                       Fourth Geneva Convention; see, e.g., Resolutions 666, 670 and 674.
                             100.      E. Playfair, International Law and the Administration of Occupied Terrftones (1992).
                             101.      See, e.g., Resolutions 605 (1987), 607 (1988), 636 (1989), 672 (1990), 681 (1990),
                                       694 (1991). There are numerous other resolutions to this effect.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -50   -
                                       Article 2(2) of the Fourth Convention appears to point to such a
                                       conciusion:
                                                 The Convention shall also apply to all cases of partial or total
                                                 occupation of the territory of a High Contracting Party, even if
                                                 the said occupation meets with no armed resistance.
                                       116       That provisionis, however, a residual one, since the
                              Jz
                                       applicatlity of the FourC                  rition is primarily determined by
                                       Article 2(1) which provides t at’(he Convention shall apply to “all
                                       cases of declared war or of any othetmd confhct” In the event
                  /                    that during an armed conflict a State takes control by military force,
                /
                                       of territory which was not under its control pnor to the conflict, then
                                                                                                                                  c
              1
            /
                                       the Fourth Convention is apphcable whatever the underying
                                       disputes about title The same is true of the Regulations on the
                                       Laws and Customs of War on Land Although ttre section on
         1
                                       occupation is entitled “Military Authority over the Temtory of the
       /                               Hostile State” there is no requirement express or i,nphed that the
                                       hostile State s title to the territory must be unchallenged or
                                       authoritatively established as a precondition to thr tfphcatIoI1 of this
                                       section of the Regulations
                                       117       The problem therefore is not one of a deficiency in the law
           \                           but rather of the refusal of States actually to apply that law Any
                                       significant improvement therefore requires not new law but better
                                       enforcement of the law which already exists. %
                                       118       That is not to say that the law on belligeent occupation is
                                       entirely satisfactory Two deficienciesre p’articularly apparent
                                       First the law of belligerent oc upoaiming as it does at a
                                       preservation of the status quo pending the conclusion of a peace
                                                                                                                                  c
                                       settlement is in some respects ilI suited to the conditions of a
                                       prolonged occupation It is difficult to see, however how this
                                       problem can be addressed. Changes in the law to give the
                                       occupying power greater scope to change the law and practice in the
                                       occupied territory to take account of social, political and economic
                                       changes occurring during the occupation are unlikely to prove
                                       acceptable and would, in any event, come close to substituting the
                                       occupant for the displaced sovereign as the sovereign power.
                                       Substitution of a concept of trusteeship of the occu pied territory for
                                       the existing regime of belligerent occupation seems likely to prove
                                       unworkable, given the inescapable fact that, unlike any normal
                                       concept of trusteeship, the relationship between the occupying
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                 Greenwood -51    -
                                       power and the territory (as well as its population) rests on the
                                       successful use of force. In so far as prolonged occupations are to
                                       be allowed to occur at all (a question which falls outside the terms of
                                       reference for this Report), the best that can be said is that the basic
                                       princip les in the Regulations on the Laws and Customs of War on
                                       Land re sufficiently elastic to allow for a degree of evolution within
                                      the framework of an occupation regime which must be regarded as
                             /         temporary. Accommodation of change in the case of a prolonged
                      /               occupation must be within the fra!T      1 dç of the core principles laid
                                                                               3
                                      down in the Regulatiöns on the Law jdCustomsof War on Land
                7                     and the Fourth Convention, in particular,thè principle underlying
                                       much of the Regulations on the Laws and Customs of War on Land,
                                      namely that the occupying power may not exploithe occu pied
            t
          /                           territories for the benefit of its own population.                    -.
         t
                                       119       Secondly, the provisions on the taking of property in occupied
                                      territory are now distinctly archaic. The rigid distitn between the
                                      powers of the occupant with regard to public propètand private
                                      property is more difficult to apply in an era when the îoie of the
                                      State, both as owner and regulator, has become far grëater than it
                                      was a century ago. The provision, in Article 55 of the Regulations on
                                      the Laws and Customs of War on Land, that the;otipyingipower
                                      shall have the powers of a usufructuary of muchpbIic propert?02 is
                                      exceptionally difficult to apply in the modern context Again
                                      however, it is unlikely that agreement could beached about a new
                                      body of Jaw which would inevitably placonrcerable power in the
                                    ‘hands of a belligerent occupant ThoughIs than satisfactory the
                                      existing law is probably the best tht                    be obtained and the real
                                      challenge is to improve the record g-compliance with It
                                                                   —
                                                                                 -
                             IV.5     The Law of NavaI.W-arfar
                                      120       The nature of naval warfare in the eighteenth and nineteenth
                                      centuries was such that a substantial and sophisticated body of
                                      customary international law had already developed by 1899, in part
                                      due to the jurisprudence of prize courts. Under that law, belligerents
                                      could conduct hostilities everywhere except in the waters of neutral
                             102.     L’Etat occupant ne se considéra que comme administrateur et usufruitier des
                                      édifices publics, immeubles, forêts et exploitations agricoles appartenant â I’Etat
                                      ennemi et se trouvant dans Ie pays occupé. Ii devra sauvegarder le fonds de ces
                                      propriétés et les administrer conformément aux règles de l’usufruit.
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<pre>Centennial of the First International Peace Conference                                               PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                            Greenwood -52-
                                       States. Most of the law concerned the circumstances in which it was
                                       legitimate for belligerent warships to capture enemy and neutral
                                       merchant vessels. So far as enemy merchant vessels were
                                       concerned, the better view (in spite of the strong opposition of the
                                       United States of America) was that enemy merchant vessels and
                                       their cargo were liable to capture and condemnation in prize.
                                       Neutral vessels, however, were liable to capture only in limited
                                       circurnstancéssuch as wilen running a blockade. The emphasis
                                       was on capture rather than attack and the distinction between
                                       enemy and neutral shipping and waters was central to the operation
                                       ofthelaw.
               /
             /
            /                          121     The 1899 Conference took almost no action on this subject,
                                       beyond adopting the Convention for the Adaptatio,r, Qf the Principles
                                       of the Geneva Convention to Maritime War. It did, however, suggest
                                       that the question of naval warfare be considered asubsequent
                                       Peace Conference. The 1907 Conference considthe law of
                                       naval warfare at Iength and, as well as revising the4p Convention
                                       on the wounded and sick, adopted seven new Convenions:
                                       -       Hague Convention No. VI relating to the Status of Enemy
                                               Merchant Ships at the Outbreak of Hostilities
                                       -       Hague Convention No. VII relating to the Conversion of
                                               Merchant Ships into Warships
                                               Hague Convention No. VIII relating to the laying of Automatic
                                               Submarine Contact Mines
                                               Hague Convention No. IX concerning the Bombardment by
                                               naval Forces in Time of War
                                               Hague Convention No. XI relative to Certain Restrictions with
                                               Regard to the Exercise of the Right of Capture in Naval War
                                               Hague Convention No. XII relative to the Creation of an Inter
                                               national Prize Court (which never entered into force) and
                                       -       Hague Convention No. XIII concerning the Rights and Duties
                                               of Neutral Powers in Naval War.
                                       122     While these treaties lay down a detailed code of rules, they
                                       have proved to be far from satisfactory. Parts were already
                                       anachronistic when they were drafted and they were largely
                                       disregarded in both World Wars, when the doctrine of reprisals was
                                       invoked to justify widespread departures from their provisions. Since
                                       only a minority of States are parties to the treaties themselves, it
                                       becomes important to know which provisions are to be regarded as
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<pre> Centenniai of the First International Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                Greenwood -53-
                                        declaratory of customary international law. That, however, is no
                                        easy task, given the comparative paucity of State practice which can
                                        be relied upon (much of the practice which does exist being
                                        referable to the reprisals claims and thus an uncertain guide). The
                                        only treaty for which substantial support can be found is the Mines
                                        Convention which the International Court of Justice has held is
                                    1
                                        based upon “certain general and weli-recognized principles namely
                           /
                                        elerientaryconsiderabons of humanity, even more exacting in peace
                                        than in war” 103 In the Nicaragua casthe Court held that these
                                        principles prohibited the Laying of mindthout warning or
                  /
                /                       notification in Waters to which the vessels of another State had rights
                                        of access or passage.
           /%                           123       There are several reasons why the law of naval warfare as
                                        stated in the 1907 treaties is difficult to apply in modern coriditions
                                        First It presupposes a dear distinction between beIIerentsand
                                        neutrals. That distinction is far harder to draw tocInce
                                       declarations of war or neutrality have been almost                         own since
                                       World War Two and States not directly involved in aZcdnfllct lave
                                       frequently been strong supporters of one side or other in that
                                       conflict In addition, the massive increase in the populanty of flags
                                       of convenience has meant that a very large part of the wojids
                                       merchant shipping has come to fly the flags oats which are
                                       unlikely ever to be active belligerents, while thnain naval powers
                                       are no longer the States with the larger rnercît fleets A further
                                       complicating factor which has already beconsidered in Part III, is
                                       that the traditional concept of neu[alfs difficult to reconcile with
                                       the law of the United            tio Charter in a number of respects
                                       124,       Secondly the Hague Conventions were based upon the
                                       assumptïon that the only part of the seas which was closed to belli
                                       gerent naval operations was the waters of neutral States. While that
                                       proposition remains true today, the extent of those waters has
                                       greatly increased. Not only has the extent of territorial waters under
                                       gone a substantial increase since the Second World War, the
                                       concept of archipelagic waters means that large areas of what were
                                       formerly the High Seas are now considered to be part of the waters
                             103.      Corfu Channel Case internationai Court of Justice Reports, 1949, p. 22; Milltaty and
                                       Paramiitaiy Activities in and Against Nicaragua, international Court of Justice
                                       Reports, 1986, p. 112.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood -54-
                                       of the coastal State and thus, arguably, off limits to belligerents in a
                                       case where the coastal State is not directly involved in hostilities.
                                       Conversely, a practice of belligerents in recent naval conflicts has
                                       been to proclaim exclusion zones, or war zones, in areas of the High
                                       Seas of strategic importance to them and to claim increased rights to
                                       control, and sometimes to attack, shipping within those zones.
                                       125       Thirdly, the -Iague Conventions treat interception, visit and
                                      search as the normal means of exerojjng belligerent rights in
                                       respect of merchant shipping. A merhant ship is treated as a
               //                      legitimate target for attack only in exceptiQnal circumstances (such
                                      as when resisting visit and search or travelling under cônvoy of
             1
                                      enemy warships). Yet visit and search at sea iseldom a realistic
                 ç                    option for States without substantial surface fleeand in an era of
                                      container shipping, visit and search at sea is unhikely to be
                                       particularly useful, since the contents of containers cannot be
                                       inspected without taking the ship into port. The iran-iaq War, in
                                       particular, saw both belhigerents take a very broad..viof the
                                      circumstances in which a merchant ship, even a neutral merchant
                                      ship, was a legitimate target. While some of these claims for
                                      example, Iraq’s claim that neutral merchant ships crrying exports of
                                       Iranian oil were a legitimate target for attack on sight were almost    —
                                      certainly unjustified, there was a widespread feeling that uncertainty
                                      regarding the content of the law made it more diificult to resist such
                                      attacks.
                                                           /                                                ,/
                                       126       These factors have ed to a number of influential calls for a
                                      fuil-scale revision of the law of iavfi warfare. 104 That the 1907
                                      treaties no honger provide sufficient guidance on their own is dear.
                                      That does not mean, however, that na satisfactory guide to conduct
                                      exists in the customary law. A recent initiative by the International
                                       Institute for Humanitarian Law has led to the publication of a restate
                                      ment of the existing customary law in the San Remo Manual on
                                       International Law Appilcable to Armed Conflicts at Sea’°             5 This
                                       Manual addresses the question of targeting by employing principles
                             104.     See, e.g., N. Ronzitti, ‘The Crisis of the Traditional Law Regulating International
                                      Armed Conflicts at Sea and the Need for its Revision’ in Ronziti (ed.), The Law of
                                       Naval Warfare (1988), pp. 1-58.
                             105.     The Manual, which was published in 1995, was edited by Louise Doswald-Beck,
                                       Legal Adviser to the International Committee of the Red Cross, and prepared by
                                       international lawyers and naval experts convened by the Institute.
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<pre> Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                Greenwood -55-
                                        of targeting developed in the context of land warfare        and adapting
                                                                                                     108
                                        them to the different context of naval warfare. It sets out the extent
                                        to which the law of neutrality at sea is stili to be regarded as effective
                                        and it examines the question of where naval operations may Iawfully
                                        be carried out in the light of the modern law of the sea.
                                        127       While the case for arnajor revision of the law of naval
                                       warfare remains a strong one any attempt to address this issue by
                      /
                        /               means of an international confereneewould present considerable
                   /                    difficulties and would be doomed to fîin1ess it had the active
                /                      support of the rnajor naval States. In theeircumstances, the
                                       personal view of the Rapporteur is that revision of the law of naval
                                       warfare, although
                                                                desirable in the longer term, shuld not be
                                       considered an immediate priority Instead, international eftorts
         1                             should be directed towards the further refinement of the customary
                                       law using the San Remo statement as a starting pGht, and
                                                                                                                       rtempts
                                       to improve compliance with that law
                             v.        Internal Conflicts
                                                                                                                     /
                                       128        The 1899 Conference was concerned with the law applicable
                                       to conflicts between the States party to the Gonventions which were
                                       there adopted and, ironically in view of the influence of the Lieber
                                       Code which was drafted for use in the American Civil War                 107 did not
                                       concern itselfwith conflicts occurring1thin a State            108 One hundred
                                       years later, such conflicts have a far more prominent place on the
                                       nternatiönal agenda, for it is here that the Iaws of war are arguably
                                       at their weakest and the case for revision consequently most
                                       pressing.                     —
                                       129        The existing treaty law on this subject is mainly contained in
                                       common Article 3 of the Geneva Conventions, 1949, and Additional
                                       Protocol II, 1977, although a number of other treaties are also
                             106.      See Part iV, Section 3, of this report.
                             107.      R. Abi-Saab, ‘Humanitarian Law and Intemal Conflicts: The Evolution of Legal
                                       Concern’ in A. Delissen and G. Tanja (eds), Humanitarian Law of Armed Conflict
                                       Challenges Ahead (1991), 209 and Droit Humanitaire et Conflits Intemes (1986).
                             108.      See Part ii, above.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -56-
                                       applicable to internal conflicts.
                                                                     109 Common Article 3 was adopted in
                                       1949 after it became dear that a far more ambitlous proposal that
                                       the four Conventions should extend in their entirety to civil wars
                                      would not be acceptable to the majority of States. The Article
                                       stipulates that in “armed conflict not of an international character
                                      occurrhig within the territory of neof the High Contracting Partjes”,
                                      the parties to the conflict (government and insurgent) were required
                                      to apply “as a minimum’
                                                          t certain basic humanitarian standards which
                                       are detailed in the Article Article 3 also provided that “an impartial
                  /                    hu]nanitarian body, such as the Interrional Committee of the Red
                                       Cross may offer its services to the partie*o the conflict” That
                                       provision was undoubtedly a major step forward but th skeletal
                                       nature of cornmon Article 3 is immediately appaÏt Th minimum
                                       humanitarian standards which It requires the pa%es4o obServe are
                                                                                                                                  c
                                       concerned entirely with the protection of persons taking no active
                                       part in hostilities, there are no provisions on the actil condtict of
                                       hostilities and a single sentence “the wounded aMick shali be
                                                                                  —
                                       collected and cared for” does the work which in the çse of
                                                                        —
                                       international conflicts was done by two entire Conveti6ns.
                                       130       Cornmon Article 3 was supplemented by Additional Protocol II
                                       in 1977. As in 1949, the original proposal from the International
                                      Committee of the Red Cross was more extenstve than the text
                                      eventually agreed at the Diplomatie Conference Additional
                                       Protocot II is, however far more detailed tha                     mmon Article 3 and
                            4,
                                      includes provisions for the conduct of hostilities, although almost all
                                      f these are designed to protect c1vilis ralher thn combatants           °
                                                                                                              11
                                       It also lays down more detaifri&s?cr the treatment of the
                                      wounded and sick and jhe protection of medical personnel,          111 as well
                                      as a series of provisions on basic humanitarian guarantees drawn
                                      from international humanitarian gw and human rights law                   12
                                       131        It appears that there is also a body of customary international
                                       law applicable to non-international armed conflicts. Common
                               109.    See, in particuiar, the Hague Convention for the Protection of Cuitural Property,
                                       1954, Articie 19, the amended Protocoi ii to the Conventionai Weapons Convention,
                                      the Chemicai Weapons Convention, 1993, and the Land Mines Convention, 1997.
                               110.   Articles 491) and (2)and Articies 13-18.
                               111.   Articles7-12.
                               112.    Articles 4-6.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood -57    -
                                       Article 3 was itself treated as declaratory of custom by the
                                       International Court of Justice in the Nicaragua case,           113 although the
                                       basis for this finding has been questioned.
                                                                                114 In addition, at least
                                       some of the provisions in Additional Protocol II are also declaratory
                                       of customary international Iaw. Far more striking, however, has
                                       been the decision of the Appeals Chamber of the International
                                       Criminal Tribunal for the Former Yugoslavia in Prosecutorv. Tadic
                                       115 which found that there had dveIoped an extensive
                                       (Jurisdîction),
                                       body of customary international lwaplicable tÖ’non-internationaI
                                       arned conflicts.
                                       132        While these developments have meant that theIaw
                                      applicable to non-international armed conflicts hasadvanced
                 ç                     considerably since 1899 (if, indeed, any such law,existed atthat
                                      date), a number of serious problems remain to be addressed.
                             V.1      The Scope of Application of the Law on Internal Conflicts
                                                                     ii                                          *
                                       133       The first such problem concerns the circumstances ir which
                                      the law on internal armed conflicts becomes applicaIe. Common
                                      Article 3 mreIy refers to “armed conflict not of an international
                                      character”, without any indication of what that term might mean. The
                                      term is, therefore, capable of a broad interpretati.p but It is dear that
                                      ft does not apply to isolated acts of violerice, scch as soradic acts
                                      of terrorism, or rioting In that respectArticIe 1(2) of Additional
                                      Protocol II is probably statinjr&ial law, when it provides that
                                      “situations of internal disturbs41nd tensions, such as riots,
                                      isolated and sporadic acts of violence and other acts of a similar
                                      nature” are not armed conflicts. The Appeals Chamber of the Inter
                                      national Criminal Tribunat for the Former Yugoslavia in Tadic
                                      considered that there was an internal armed conflict whenever there
                                      was “protracted armed violence between governmental authorities
                                      and organized armed groups or between such groups within a
                                      116
                                      State”.
                             113.      International Court of Justice Reports, 1986, p. 114, paragraph 218.
                             114.     See, e.g., the dissenting opinion of Judge Sir Robert Jennings, loc. cit., p. 537.
                             115.      105 ILR4I9.
                             116.     Loc. cit., p. 488, para. 70.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood -58-
                                       134        Additional Protocol II, however, is subject to a higher
                                       threshold, Article 1(1) providing that the Protocol applies to armed
                                       conflicts
                                                  which take place in the territory of a High Contracting Party
                                                  between its armed forces and dissident armed forces or other
                                                  organized armed groups which, under responsible command,
                                                  exercise such control over a part of its territory as to enable
                              7                -.them to carry out sustained and concerted military operations
                                                  and to implement this Protocol.
                                                                            1
                                                                            V;
                        /
                                          4
                                       135        The requirement of territorial c ntrol means that the majority
                                      of internal armed conflicts fali outside the, scope of Additional
                                       Protocol II, the application of which is confined to full scale civil wars
                                      of the kind which occurred in Nigeria in the late 19.6as.         117 In
                                                                                                                                  ç.
         j                            addition, unlike common Article 3, Additional Protocol II does not
                                      apply to conflicts between warring factions within a State when none
                                      of these factions constitutes the government of that gtate.                     ‘
                                       136        The threshold for the application of the law ot            joternal armed
                                                                                                             4
                                      conflicts is unsatisfactory in a number of respects. First, it is difficult
                                      to find any justification today for the higher threshold for the
                                      application of Additional Protocol II. The provisionsof Additional
                                       Protocol II ere exclusively humanitarian in character. The provisions
                                      on the care of the wounded and sick should beuncontentious in any
                                      conflict, irrespective of its level of intensity. Thoe relating to
                                      fundamental guarantees are drawn in large part from human rights
                \          Ç          provisions which are intended to apply in circumstari’ces of
                    \           hormality, and the principles of commÇn Article 3, which apply at the
                                      lower threshold in any event.   1 The provisions on the conduct of
                                      hostilities are somewhat different, since these are derived from those
                                      of Additional Protocol 1. Nevertheless, they are intended exclusively
                                      for the benefit of the civilian p5Zation and the limitations which they
                                      would impose upon government forces seeking to suppress a
                                      rebellion are minimal. There is no reason why a government should
                                      be obliged to observe these restraints towards its civilian population
                                      only in the circumstances specified in Article 1 of Additional
                                      Protocol II and not in all those to which common Article 3 applies and
                                      which are closer to a situation of normality within a State.
                             117.     The Russian Constitutional Court, in its Judgment of 31 July 1995, considered that
                                      the Protocol had been applicable to the conflict in Chechnya.
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<pre> Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                Greenwood -59-
                                         137      The higherthreshold in Article 1(1) of Additional Protocol II is,
                                         of course, justified in the test of that provision by reference to the
                                         need for an insurgent movement to control an area of territory in
                                        order to enable it to implement the Protocol. There is some force in
                                        that argument, since the provisions of the Protocol, like most of inter
                                        natioral humanitarian law, are more easily applied by those who
                                        have a territorial base than by forces which are constantly on the
                                        move. That is not to,ay, hGwever, that the provisions of the
                        /               Protocol cannot be implemdnted byaninsurgent force which does
              /                         not control a clearlyç$efined area of teuiiory. Control of territory was
                                        not, for example, consider’ed necessary for a nationaNiberation
                                        movement to be able to apply the far moré substantial provisions of
                                        the Geneva Conventioris Zand Additional ProtocalL      118 Moreover, in
                                        any guerrilla conflict (and almost all internal conflictSare guerrilla
                                        conflicts for at least much of the time), the notion öf territorial control
                                       is difficult to pin down. As a leading commentatorj explâined, it
                                        may vary between day and night.     119 In such circurMices, the
       1<                              existence of territorial control is thoroughly unsatisf99ry to serve as
                                       a condition for the applicability of rules of international humanitarian
                                       law.
                                                    4
                                       138        Secpndly, contrary to what is provided in Additional
            \                          Protocol II, it is important that the whole of the lwof internal armed
                                       conflicts should be app)icable to fighting betdifferent
                                       non-govemmental groups and not just tofighing between
                                       government and insurgent forces. Incases of civil war it is
                                       frequently difficlt to determine Whicl$;  any, group can properly be
                                                                                 4
                                       regarded as the government of the Slate concerned.       ° Unlike
                                                                                                12
                                       Additional Protocol II, the test in common Article 3 avoids the need to
                                       address this question as a precondition for the applicability of
                                       international humanitarian law. Moreover, some of the most vicious
                                       internal conflicts of recent years have occurred between factions
                                       none of which could plausibly be regarded as the government of a
                                       State, the government either having ceased to exist or being unable
                                       to act.
                             118.      Additional Protocol 1, Articles 1(4) and 96(3).
                             119.      G. Abi-Saab, ‘Wars of National Liberation” 165 RC (1979-1V) 353. The remark was
                                       made in the context of ari Article 1(4) conflict under Additional Protocol 1 but is
                                       equally applicable to internal conflicts.
                             120.      That was the case, for example, during part of the civil war in Liberia.
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<pre>                                                                                                                                   4
Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -60    -
                                       139        Thirdly, with both common Article 3 and Additional Protocol II,
                                       there is a problem that, even where the conditions for their
                                       application have been met, governments are reluctant to admit that
                                       this is so. This reluctance is particularly evident in relation to
                                       Additional Protocol II, since fora government to admit the
                                       applicability of the Protocol is to concede that it has lost control of
                                       part o its territry. It has, however, also been a feature of conflicts
                                       uncler cornrnon Artk1 3: A/JudgeKooijmahshas pointed out, this
                                       is a major weakness of the syste                 frles desned for internal
                    /                  armed conflicts.
                                                 121 ‘IjUi absence                                c,eptanc on the part of
                  /
                                      the government, or of faction leaders, thtn armed conflict exists, it
                                       is obviously Iess likely that the law will in fact be applie (although
                                       some govemments have agreed to apply the staftdards in common
                                      Article 3 while denying that there is an armed coj toccUring on
        1
                                       their territory). Yet the acceptance by a government that ai armed
                                       conflict exists is not a legal prerequisite for the appIkbility Øf
                                       common Article 3 of Additional Protocol II. Both ated t be
                                       applicable provided that certain objective criteria arpt. It s
                                       therefore important that governments should not beIlwed to
                                       escape their obligations by denying the existenceof an armed
                                    1  conflict in circumstances where those criteria are
                                                                                                                    /
                                       140        Finally, the comparatively high threshcijdfor the applicability
                                       of the law of internal armed conflicts has opertØd’ tip the threat of a
                                       gap between the coverage of human rights trties and the rules of
                                       that law. Most human rights treatiesprmierogaton in cases of
                                       national emergency.
                                                    122 The questjn6ctly wIat constitutes
                                       such anemergency has fre                   try froved controversial but it is dear
                                       that the situation wit[firtF State dan reacb the stage at which that
                                       State may invoke the derogation clauses of the human rights treaties
                                       but stili not amount to an armWd conflict within the generally
                                       accepted sense of that term. It is possible, therefore, that a State
                                       might legitimately invoke the derogation provisions of the human
                                       rights treaties to which it is a party and thus remove some (though
                             121.      P. Kooijmans, ‘In the Shadowland between Clvii War and Clvii Strife’ in A. Delissen
                                       and G. Tanja (eds), Humanitarian Law of Armed Conflict: Challenges Ahead (1991),
                                       225 at 228-9.
                             122.      See, e.g., International Covenant, Article 4(1) (‘public emergencywhich threatens
                                       the life of the nation’), European Convention, Article 15(1) (‘war or other public
                                       emergency threatening the life of the nation’), American Conventiori, Article 27(1)
                                       (‘war, public danger, or other emergency that threateris the independence or
                                       security of a State Party’).
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<pre>Centennial of the First International Peace Conference                                                     PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                  Greenwood -61    -
                                        not all) of the protections afforded by those treaties, while stili not
                                        being required to observe the limitations of the laws of war. There is
                                        no logical justification for this state of affairs, since there is no
                                        reason why, in a state of emergency falling short of an internal
                                     *  armed conflict, a State should be permitted to engage in conduct
                                        whichis forbidden to It in normal times and in the more serious
                                        conditions of clvii wa eobvious de[rability of closing that gap
                                        has ledto the rod iik,f’fe Öec)aration öf Minimum
                                        Humnitarian Standards (“the Turkû                       laration”) and other moves
                                        to elaborate a set ofiion-derogabletØrds drawn from both
             /7                         human rights law and th              ws of war.
                                                                                      123
                                        141        It is suggested, therefore, that the protecttori affoded to
                                       those not taking part in hostilities and, in part[4iaito the civilian
                                                                                      —
                                        population caught up in an internal armed conflict- would be greatly
                                        enhanced 1f the international community were wiili4b takethe
                                       followingsteps:-
                                        1          make the threshold for the applicability of Aj9nal
                                                   Protocol II the ame as that which currenIy J.Sds for!
                                                   common Article 3;
                               _-      2           erisure that the threshold which will then beaplicabie to both
                                 ...   3
                                                   sets of provisions is faithfully applied; and
                                                   harmonise the law of internal armed cqjIIoW with1he law of
                                                                                                                     /
                                                   human rights by the adoption of a se ndarjs common
                                                  to human rights law and the law of intl cor)flicts which are
                                                  to be appiled at all points on the sØectrlim offnternal unrest.
                                                   It is accepted that these proposals would involve a reversal of
                                                             only just over twenty years ago when Additional
                                                        was adopted and would be seen by some States as a
                                  1    threat                          In practice, however, no such threat would be
                                       involved. Violations of the law would not, of themselves, furnish a
                                       justification for intervention.
                                                             124 The restriction on the freedom of
                                       action of States would be small and the humanitarian gain potentially
                                       very considerable.
                             123.      See, e.g., Meron and Rosas, ‘A Declaration of Minimum Humanitarian Standards’
                                       85 AJIL (1991) 375.
                             124.      Additional Protocol II, Article 3.
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<pre>Centennial of the First international Peace CQnference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -62-
                             V.2       The Substantive Law Applicable to Internal Armed
                                       Conflicts
                                       143        A second problem concerns the comparative paucity of the
                                      substantive law applicablein internal armed conflicts. Even after the
                                      adoption of Additional Protocol II, this body of law is very limited,
                                      especially when one co,ares it with the substantive law applicable
                                      to international conflicts                             ications that some States are
                                       prepared to apply the whole                                  ‘rnatronal armed conflict
                                      to internal armed conflicts as well     125                           Cliamber in
               7                       Tadic however denied that the customary law of interial armed
           t
                                      conflicts had yet reached the point where it was Øntical to that for
                                       international armed conflicts 126 Moreover soriéfatures of the law
                                                                                                                                 c
         t
                                      of international armed conflict such as the law o
                                                                               —                         Iligerent
                                                                                                         4
                                      occupation are inappropriate for application in nownterntional
                                                       —
                                      conflicts and It is unlikely that the majority of Stateuld bb willing
                                      to accept the application of for example the underlyin premise of
                                      the Prisorters of War Convention that prisoners o1Wmay not be
                                      subjected to punishment for the mere act of participating in
                                      hostilities, in conflicts between government and insurgent forces
                 4.
                                       144        Ne’2ertheless, there are other, less coni:sial principles of
                                      the law of international armed conflicts which’be a,pphed to
                                      conflicts occurring within a State The mostoious candidate is the
                                      provisions of the First and Second Genea Coentio6s Although
                                 ,Additional Protocol II, Articles 7-12, 4touihe main principles for
                                      the treatrnent of the woupcied andWnd the protection of medical
                                      personne those pro4n lak the detail of the First Convention,
                                      some of e provisions of which could usefully be extended to
                                      internal nflicts Additional Protocol II has no equivalent of the
                                      provisions öflhe Secohd Convention. While internal conflicts
                                      seldom have a naval dimension, It is not impossible that they might
                                      do so, in which case the extension of the principal provisions of the
                                      Second Convention to internal conflicts would be of great value.
                             125.     See D. Fleck (ed), The Handbook of Humanitarian Lawin Armed Conflicts (1995), p.
                                      48, reproducing para. 211 of the German manual of the iaws of war issued to the
                                      Bundeswehr.
                             126.     Loc. cit., para. 126.
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<pre>t
  Centenniai of the First international Peace Conference                                                   PRELIMINARY REPORT
  Humanitarian Law and Laws of War                                                                                Greenwood -63    -
                                         145       The law of internal armed conflicts also contains very few
                                         provisions on the conduct of hostilities themselves. Article 13 of
                                         Additional Protocol II states the basic principle that “the cMlian
                                         population, as such, as well as individual civilians, shali not be the
                                         object of attack”. This replicates the provision of Article 5 1(2) of
                                         Additional Protocol 1. However, unhike Additional Protocol t,
                                        Additional Protocol II contains no definition of the cMlian population,
                             /           a significant          damaging omission, since the distinction between
                                        civilians and combatants tends to berpore difficult to draw in an
                                         internal conflict. There is no protecIi&for civihian objects (other
                 /                      than that in Article 14 for objects indispensable for the survival of the
                                        civilian population). There is no definition of a legitimate military
                                        objective comparable to that in Article 52(2) of 4itionai Protocol 1
            /
                                        Moreover, while outlawing attacks directed speQi4rIIy against
                                        civilians, Additional Protocol II does not incorpobte_the priiciple of
                                     1  proportionality, i.e. that attacks may not be laundagaint a
         1                              military opjective if that attack may be “expected tse incidental
                                        loss of civilian life injury to civilians damage to ciJjbjeots or a
                                        combination thereof, which would be excessive ir reatn tothe
                                        concrete and direct military advantage anticipated”. 127
                                                                        1
                                        146        *ther important distinction between Adal Protocol II
                                        and AddLtional Protocol t is that Additional Pr                       t includes two
                                                       —  Articles 57 and 58 on precautio                     tack’and defence
                                                         — which translate the main princi                  regarding the
                                                       of civilians and civilian objectsto r(les of conduct for
                                                             Article 57 is a partiulaiiy valuable provision, setting
                                                                              ....
                                                             a “check list” tiÇce who order an attack, to ensure
                                                             )flS onJe. pro!etion of the civihan population are
                                                       )served. There are no comparable provisions in
                                        Additional Protocol II. Since, however, commanders in internal
                                        armed conflicts are required to observe the principles set out in
                                        Articles 13 to 16 of Additional Protocol II when they order an attack,
                                        a similar check list may of great value in helping to develop a culture
                                        of compliance.
                                        147       The evidence of the last fifty years is that the civilian
                                        population suffers at least as much in internal as in international
                                        conflicts. The extension to internal conflicts of more of the principles
                               127.     Additionai Protocoi i, Article 51(5)(b).
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<pre>                                                                                                                                 )
Centennial of the First international Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -64-
                                       and rules for the protection of the civilian population from the effects
                                       of hostilities would offer a significant advance without unduly
                                       restricting the ability of a State to combat rebellion within its territory.
                                       148       The Iaws of internal armed conflict also lack provisions for the
                                      protection of combatants. Apart from Article 4(1) of Additional
                                       Protocol 1, which prohibits Griers not to give quarter, the only
                           /          provisions regarding the treatment of combatants concern their treat
                                       ment after apture The logic which hs behind the unnecessary
                                      suffering principie, hoever, is equali plicabIe to internal conflicts
                /                     and it should be made dear that this priric[e is also applicable
                                      there There is also good reason to apply to internal armed conflicts
             /                        more of the provisions on weapons and methodstf warfare which
                                      apply in international conflicts As the Appeals Chamber of the
                                                                                                                                 c
                                       International Criminal Tribunal for the Former Yugoslavia has said
                                                    elementary considerations of humanity atid commpn sense
                                                 make it preposterous that the use by Stateweapon
                                                 prohibited in armed conflicts between thernselves be allowed
                                                 when States try to put down rebellion by their o’wn nationals
                                                 on their own territory. What is inhumane, and consequently
                                                 proscribed, in international wars, cannot but be inhumane
                                                 and inadmissible in civil strife.’
                                                                                28
                                                                                                      (1%[
                                      149        SevraI of the more recent treaties on 7pnry —the
                                      Chemical Weapons Convention 1993, the amed Protocol II to
                                      the Weaponry Convention and the Land Mines Convention, 1997—
                                      are applicable in anternal armed conflacts The older treaties,
                                      however, are not for the most part specifically applicable in internal
                                      conflicts (although the 1 92 ChemcaI and Biological Warfare
                                      Protocol has been treated as Iaying down standards which are also
                                      applicable to confhcts within a State).
                                      150        There is, therefore, a strong case for saying that these
                                      principles on the protection of the wounded and sick, the protection
                                      of the civilian population from the effects of hostilities and the law of
                                      weaponry should be applicable in internal armed conflicts. Whether
                                       t is necessary to extend them by treaty is another matter. The
                                     decision in Tadic suggests that many of them may already be
                                      applicable as part of customary law. Since it is more than likely that
                                      the jurisprudence of the International Criminal Tribunal for the
                             128.     Loc. cit., para. 119.
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<pre> Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                                Greenwood -65-
                                         Former Yugoslavia and the International Criminal Tribunal for
                                         Rwanda, as well as the International Criminal Court (if that body is
                                        established) will lead to the further elaboration of those customary
                                        rules, a treaty may well be unnecessary.
                                        151        1f, however, It is accepted that the principles considered in
                                 / this section of the Report shøjd be appIie in intemal armed
                                        confhcts, there are certain advantges to achieving this goal by
                                        means of a new treaty since that WLd make possible a systematic
                                        approach to the revision and codifictn of the law and would help
                                        in eliminatingsome of the uncertainty whih undoubtedly exists at
                                        present regarding the content of the customary law               29 it is
                                        , for example, that only a year before4be decision of the
                                        1
                                        noticeable
                                       Appeals Chamber in Tadic, the Commission of Eeis appointed to
                                        investigate violations of international humanitarian law in the former
                                       Yugoslavia took a far more restricted view of the cdWtent o9he
                                       customary law applicable to internal conflicts thanffifwhich was
        1                              subsequently adopted by the Chamber 130 is alQJpen to uestion
                                       whether, as Sir Hersch Lauterpacht commented iary Siearsago,
                                       criminal trials are the best forum in which to resolve difficult
                                       questions about the content of the law regardin wGapons, targets
                                       and the conduct of hostilities.
                                                                    131
                                                    II
                      ‘V 3             Compliance with the Law of Internal Armed Conflict
                                                            /
                             129       The Appeajs Chamber in Tadic notecFthat
                                                  The emergence of the aförémetitioned gerrai ruies on intemal armed
                                                  conflicts does not implythat internal strifé is regulated by general
                                                  iritërnational iaw in all its aspectsTo particular iimitations may be
                                                  noted (i) only a numberof nifes and pnncipies governing international
                                                  armed confcts have gradually been extended to apply to intemai conflicts;
                                                  and (ii) this extension has not taken piace in the form of a full an
                                                  mechanicai transpiant of those mies to internal conflicts; rather the general
                                                  essence of those mies, and not the detaiied regulation they may contain,
                                                  has become appiicabie to internal conflicts. (Loc. cii, para. 126)
                             130.      The Commission stated in its Final Report that:
                                                 The treaty-based law applicabie to intemal armed conflicts is relatively
                                                  recent and is contained in common article 3 of the Geneva Conventions,
                                                 Additional Protocol Ii, and article 19 of the 1954 Hague Convention on
                                                  Cultural Property. It is unlikely that there is any body of customary inter
                                                  national law appiicabie to intemal armed conflict which does not find its
                                                  root in these treaty provisions. (United Nations Doc. S/t 994/674, para. 52.)
                             131.      H. Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’ 21 BYIL
                                       (1944) 58 at p. 75.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                               Greenwood -66-
                                   1   152       The most serious problem with the law of internal armed
                                       conflict is, however, the very poor record of compliance. A marked
                                       improvement in compliance with the existing law would be a more
                                       significant step forward than would the revision of that law along the
                                       lines which have just been suggested. The topic of compliance with
                                       the laws of war in general is considered in Part VI. There are,
                                       however, a number of issues peculiar tocompliance in internal
                                       confhcts which require brief comment here. “
                        7              ‘1  —   .
              //                       153        First, It is only recently that it has been established that
                                       individuals who commit serious violations of the laws of internal
                                      armed conflict are guilty of war crimes under international law. As
                                       recently as five years ago, this proposition was doubted and when
          1                           the Security Council established the International Crimina! Tribunal
                                      for Rwanda in 1994, giving it jurisdiction over violations of common
        /                             Article 3, this act was described by the Secretary-eieral a$ an
       J                               innovation, which “for the first time criminalises con’&?on Article 3I32
                                       Since then, however, the fact that both the Yugoslavi and Rwanda
                                      tribunals have clearly been given jurisdiction over suh offences by a
                                       Security Council which considered that it was acting within the
                                      existing law and respecting the principle nullum crirr7en sineIege, the
                                      decisions of the International Criminal Tribunal for the Former Yugo
                                      133 and the widespread acceptance of this principle in the
                                      slavia,
                                       negotiations for the establishment of an internÏnal criminal court
                                       make It difficult to argue convincingly tha the’        ncept of war crimes
                                                                                               9
                                      does not extend to internal conflicts. i
                                       154       What does not so exterid, however, is the special machinery
                                      for addressing grave breaches of the Geneva Conventions        134 and, in
                                            ticular, the duty (as opposed to the right) of all States to make
                                      such conduct criminal under their own law, investigate alleged
                                      violations and, if there is sufficient evidence, to prosecute or extra
                                      135 This part of the machinery for ensuring compliance with the
                                      dite.
                                       Iaws of internal armed conflict would be greatly strengthened 1f
                                       (a) serious violations of the laws of internal armed conflict are
                             132.      United Nations Doc. Sf1995/134, para. 12.
                             133.      In addition to Tadic, see Prosecutorv. Martic, 108 ILR 39.
                             134.      Tadic, loc. cit., paras 79-85.
                             135.      See, e.g., Geneva Convention III, Articles 129-30.
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                               Greenwood -67-
                                       included in the jurisdiction of the International Criminal Court, if that
                                       body is established, and (b) the machinery for the national
                                       prosecution of such offences were strengthened.
                                       155       Secondly, It would be easier to develop and foster a culture
                                      of compliance with the law of internal armed conflict if there was a
                                      greater degree of external monitoring of compliance during a conflict
                                       (as opposed to prosectition of violations, which normally occurs after
                                      the conflict has ended and, in any event, long after the alleged
                                      violation has been committed). Two tps could be taken in that
                                      regard. First, the right of initiative which the International Committee
                                      of the Red Cross currently possesses under common rticle 3 could
                                      be strengthened. In particular, States could be uired to accept
                                      the offer of the International Committee of the Red€ross’s services,
                                      as is already the case in international conflicts, 138 if they have not
                                      accepted some other form of international superviioh. Secondly,
                                      the jurisdiction of the Fact-Finding Commission estiithed by Article
                                      90 of Additional Protocol 1 could be extended to internal conflicts         37
                                      156        Finally, as mentioned in Part III of this Report, it is possible
                                      that the monitoring mechanisms of human rights cônventions could
                                      be used man indirect way to assist in ensuring compliance with the
                                      law applicable in internal conflicts. While it is dear that a human
                                      rights monitoring body established by treaty.pöesses only the juris
                                      diction conferred by that treaty, the relati%nshlPbetween the law of
                                      human rights and the law applicable in int4tnal armed conflicts is a
                                      close one. A human rights tribur4stigating alleged violations of
                                      the right to life in an internal armed conflict is likely, therefore, to be
                              \.      investigating conduct which will also involve alleged violations of the
                                      laws of armed conflict.
                                      157       The potential for action of this kind is illustrated by the
                                      decision of the lnter-American Commission of Human Rights in the
                                      case of Abella v. Argentina, which concerned the fighting that
                                      followed a take-over of an army barracks. The Commission there
                                      stated that:
                             136.     See, e.g., Geneva Convention III, Article 10.
                             137.      t is understood that the Chairman of the Commission has already been invited to
                                      act in respect of an internal conflict by the government of the State concemed,
                                      although the Commission itself was not formally involved.
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<pre>Centennial of the First International Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -68    -
                                                      the Commission’s ability to resolve claimed violations of
                                                  this non-derogable right [to life] arising out of an armed
                                                  conflict may not be possible in many cases by reference to
                                                  Article 4 of the American Convention alone. This is because
                                                  the American Convention contains no rules that either define
                                                  or distinguish cMlians from corn batants and other military
                                                  targets. much less specify when a civilian can be lawfully
                                                  attacked or when civilian casualties are a lawful consequence
                                                  of military operations. Therefore, the Commission must
                                                  necessarily look to and apply definitional standards and
                                                  relevant rules of humanitarianlaw as sources of authoritative
                  /                               guidancein itsresolution of this ad other kinds of claims
                                                 alleging violations of the American Convention in combat
               /                                 138
                                                 situations.
             /
                                                                       1
                  /                    158       This approach, which builds upon the common ground
                                       between the law of human rights and the law of internal armed
                                       conflict should be encouraged as an aid to ensuring compliance,
                                       although, of course, it should be noted that humanrights tribunals
                                       normallypossess jurisdiction only in respect of alleged violations
                                                                                                           r
                                       committed by the State.
                             VI.       Improving Compliance with the Laws of War                                   .‘
              ‘.     ‘4                                               /
                                       i59       The principal theme of this Report has been that, whatever
                 ‘\          ./       the shortcomings of the Iaws of war, the’most important objective is
                     \              J now to improve compliance with thosews for it is here that the
                                      greatest weakness Iies.     139 The recent fighting in the former
                                      Yugoslavia, Rwanda and Somalia, to take just three notorious
                                      examples, have shown the extent to which the most fundamental
                                       principles of the laws of war are disregarded in practice. While the
                                       substantive law is certainly capable of improvement, as this Report
                                       has endeavoured to show, It is curbing this tendency to fout the law
                                      which must be the priority. This Part of the report will therefore
                                      concentrate on some of the ways by which this might be done.
                              138.      Report No. 55/97, para. 161.
                             139.      See the recent studies by H. Fox and M. Meyer, Effecting Compliance (1993) and
                                       European Commission, Law in Humanitarian Cnses: How Can International Law be
                                       Made More Effective in Armed Conflicts (1995).
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
 Humanitarian Law and Laws of War                                                                               Greenwood -69-
                             VI.1      Prosecution of War Crimes
                                       160       The most obvious, and currently the most studied, way in
                                       which the internaUonal community could improve compliance with
                                       the laws of war would be through strengthening the system for the
                                       prosecution of war crimes to the point where the likelihood of being
                                       broug rto ustice acted as a eal deterrent to those contemplating
                                                            of war crirn/
                                                                      0
                                      iion
                                       161       At the time of writing the lnter-Governmental Conference at
                                       Rome was in the process of negotiating a Statute for a permanent
                            —,         International Criminal Court 1f these negotiations are successful
            f
                                      they will significantly strengthen the existing prosecution system
                                      both by introducing the prospect of trial before arrinternatonal
                                      tribunal and, indirectly, by leading States to take mare seriously their
                                      own responsibilities to bring such cases before thetinationaI courts
                                      It would be pointless to embark upon a substantiaibssion of
                                      these possibilities until the outcome of the Rome neetiations is
                                      known. This Part of the Report will, therefore be re’)isdd in the light
                                      of those negotiations after they conclude in July 1998.
                                                                                                             2
                                      162        It is, however important to bear in mmd that          1 even if the
                                      Rome negotiations are successful and an effee International
                                      Criminal Court with jurisdiction over war crime is established the
                                      creation of that Court and its                                      not be sufficient by
                                &     itself Prosecutmon for violations of the IaWnay be an effective
                                      means of enforcement but it is neitbeifhe only, nor necessarily the
                                      most effective, means of ensuring compliance War cnmes
                                      prosecutmons are thernselves an admission of failure in that they
                                      necessarily occur only after an offence has allegedly been
                                      committed. A strategy for irnproving compliance with the Iaws of war
                                      must pay at least as much attention to the prevention of crime as to
                                      its punishment. There are a number of other areas in which action
                                      could be taken, often without the need for any change in the law, to
                                      ensure the better implementation of that law.
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<pre>                                                                                                                                   S,
Centenniai of the First international Peace Conference                                                    PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood -70   -
                             VI.2      Peacetime Measures
                                       163        Compliance with the law in relation to any activity is likely to
                                       be enhanced if those who engage in that activity are aware of their
                                       legal responsibilities and the steps which they must take to
                                       discharge them, in short, if a “culture of compliance” is developed, in
                                       which respect for the law      is seen as a normal and essential part of
                                                                      1
                                       behaviour           The development of such a culture can be a far more
                      /                imp’rtant factor in ensuring that the aw is respected than the threat
                             4% of prosecution ‘For example Articles           8-57 of Additional Protocol 1
                                                                               4
                                       require that a commanderwho orders anettack should attempt to
                                       ensure that the target is a legitimate military objective that civilians
                                       are not themselves targeted that certain other objects subject to
                                       special regwnes of protection (e g under Articles 54-56) are not
                                       attacked that the attack will respect the requirement of
                                       proportionality and that in choosing the methods ameans by
                                       which the attack is to be carried out, he selects thoè which will be
                                       likely to avoid, or at least minimise the civilian casualties While
                                       prosecutions for failure to comply with these requirements are
                                       possible, It is likely to be far more difficult to bring a successful
                 4....                 prosecution for, e.g., failure to complywith the proportionaiity
                                       principle or the selection of the wrong method or means of attack
                                       than for a crime such as the murder of prisoners he best hope of
                                       ensuring that a commander will respect thoseprinciples laid down in
                                       Additional Protocol t (or the largely similar principles in customary
                  \                    law where Additional Protocol 1 is not appilcable) is if the
                                       commander is sufficiently well awae of his responsibilities that he or
                                       she instinctively takes uch ckcterations into account in planning
                                   ,   and taking decisions              ‘J ‘
                                                   t
                                       164        Central to the creation of such a culture of compliance
                                       amongst the military is the proper dissemination of the laws of war
                                       and training in their application in particular circumstances. The
                                        1899 Conference recognized this need. Article 1 of the Convention
                                       on the Laws and Customs of War on Land, to which the Regulations
                                       are annexed, requires States to “issue to their armed forces
                              140.      L. Henkin, International Law: Politics, Values and Functions 216 RC (1989-1V), pp.
                                        67-87.
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<pre>(2
    Centenniai of the First international Peace Conference                                                   PRELIMINARY REP0RT
    Humanitarian Law and Laws of War                                                                                Greenwood 71-    -
                                           instructions which shail be in conformity with the Regulations”    ’
                                                                                                              4
                                           The duty of States to disseminate the provisions of the relevant
                                           agreements to the members of their armed forces and their civilian
                                           populations is also stipulated in the Geneva Conventions and
                                           Additional Protocol [142
                                           165        Measures of this kind cannot be left until after the outbreak of
                              /           a conflict, for then the belligerent States tend to have other priorities.
                         //                It is important that all States provid>e appropriate education and
                                          training in the Iaws of war for the mern’bers of their armed forces in
                                          time of peace That can, of course be suppiemented if the State
                                          concerned becomes involved in hostilities but a cufture of
                                          compliance cannot be created overnight and at least wifh regular
                     Ç                    armed forces, peacetime instruction is essential. In particular, that
                                          instruction has to be more than simply a presentation of the rules of
                                          the Iaws of war, it has to demonstrate how those Iaws form an
                                          integral part of military life and the business of fightfi, It is
                                          therefore important that assistance be given to thoe States which
                                          lack the resources to mount programmes of this kind o whoe
                                          governments are unsure of what is required The International
                                          Committee of the Red Cross, especially through itsnew Advisory
                                          43 and the International Institute of Humanitarian Law
                                          Service,’
                                          already perform valuable work in this respect. ,The exparision of
                                          these and similar programmes something which would require
                                                                                   —
                                          greater resources would be a simple and uriciramatic yet potentially
                                                                   —
                                          very effective method of improving compliace with the laws of war
                                          166        Other measures which need to be taken in peacetime
                                          include, inter alla:-                                    /
                                          a          the scrutiny of new developments in weapons and methods
                                                     of warfare to ensure thâtthey will comply with the
                                                     requirements of the Iaws of war (Additional Protocol 1, Article
                                                     36);
                                          b         taking into account, in decisions about planning, the
                                                     obligation in Additional Protocol 1, Article 58(b) to “avoid
                                 141.       Les Hautes Parties Contractantes donneront â ieurs forces armées de terre des
                                           instwctions qui seront conformes au Règiement
                                142.      See, eg., Geneva Convention iii, Article 127; Additional Protocol 1, Article 88.
                                143.      P. Berman, ‘The International Committee of the Red Cross’s Advisory Service on
                                          international Humanitarian Law’ 26 Int Rev of the Red Cross (1996) 338.
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<pre>Centennial of the First international Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                               Greenwood -72-
                                                 locating military objectives within or near densely populated
                                                 area&’; and
                                       c         the establishment of systems for hand ling prisoners of war
                                                 and other detainees in the event of armed conflict.
                                       167       States need to be enc?ged to take such measures and,
                                      where necessary, assisted to do so. In this context, one possibility
                           /          which could be considered is the establishment of a system of
                                       periodic reporting to an impartial oftycomparabJe to the system of
                              4%       periodic reporting to the United Natiöi-Iu man Rights Committee by
                                       States party to the International Covenant on Civil and Political
                                       Rights, 1966), although it must be recognized that the sensitivity of
             ‘                         much military information is such that any suc1uiremnt would
          j                            necessarily have to be limited in scope.
                             VI.3     The Protecting Power and the Role of the International
                                       Committeeofthe Red Cross
                                       168      The law is more likely to be respected if there is effective
                                       monitoring of compliance and if discreet pressure can be brought to
                                       bear upon States not to commit, or to tolerate the commission by
                                      those under their control, of violations. In part1 access to
                                                   of war camps and detention centres,e exchange of
                                      prisoner
                \                     reliable lists of prisoners of war and the façt that prisoners of war,
                                      detainees and the population of occujed térritory have recourse to
                                      some outside body for their prQtectjpre all measures likely to
                                      encourage compliance with the laws of war. The Geneva
                                      Conventions and Additional Protocol 1 contain provision for the
                                      ppointment by belligerents of protecting powers neutral States     —
                                      which will oversee the treatment of prisoners of war and other
                                      nationals of one belligerent by its adversary. Protecting powers
                                      played an important role, especially in relation to prisoners of war,
                                      during the Second World War.
                                       169      The system of protecting powers has, however, scarcely
                                      been used at all since 1945. In part, the problem has been that a
                                      belligerent State is under no obligation to accept the nomination of a
                                      protecting power by its adversary. Article 5 of Additional Protocol 1
                                      attempted to strengthen the system by providing for a series of steps
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                                        to be taken in the event that agreement on the appointment of a
                                        protecting power proved difficult but it stopped short of imposing
                                        upon States a duty to accept a protecting power.
                                        170       The international climate has undergone great changes since
                                        1977 and some things which were unthinkable then are
                                        commonplace today In particular, there appears to be a greater
                                        readiness to accept a degree of third party settiement and outside
                                        intervention It may be therefore, thi the imposition of such a duty
                                        is no longer unthinkable 1f that is the oase, it would be a valuable
                                       change in the law. 1f, however, It is necessary to work within the
                                       existing legal framework, much could still be done to encourage a far
                                        more widespread acceptance of the protecting power system 1f life
                                       can be breathed back into this system, the machinery for ensuring
                                       compliance with the laws of war would be significantly strengthened
                                        171       In the absence of a protecting power, the Conventions and
                                       Additional Protocol 1 require belligerents to accept the services of the
                                        International Committee of the Red Cross, or another international
                                       humanitarian organization It is, however, notorious that this is not
                                       always done It is of the utmost importance that thinternationaI
                                       community makes dear that denial of access to the International
                                       Committee of the Red Cross on the part of a State is both unlawful
                                       and wholly unacceptable. It has already besuggested, in Part V
                                       of this Report, that the duty to accept the soces of the
                                       International Committee of the Red                                                 to
                                       internal armed conflicts
                                                   1
                             VI.4      The Fact-Finding Commissbn
                                                   -4,    - —                     -
                                       172       Article 90 of Additional Protocol 1 established a Fact-Finding
                                       Commission with competence to:
                                       (i)        enquire into any facts alleged to be a grave breach as
                                                 defined in the Conventions and this Protocol or other serlous
                                                 violation of the Conventions or of this Protocol;
                                       (ii)      facilitate, through its good offices, the restoration of an
                                                  attitude of respect for the Conventions and this Protocol.
                                       173       The competence of the Commission exists in respect of
                                       States which have made a declaration accepting the competence of
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<pre>                                                                                                                                   y
Centennial of the First International Peace Conference                                                     PREUMINARY REPORT
Humanitarian Law and Laws of War                                                                                 Greenwood - 74 -
                                       the Commission to enquire into allegations by any other Party
                                       accepting the same obligation.
                                       174        This is a modest but important measure, for the
                                       establishment of the facts, in the case of an alleged violation of the
                                       law, by the decision of an authoritative and impartial body may be of
                                       great assistance in putting an end to a continuing violation or in
                              .7
                          /            preventing a repetition cf’hat violation. It is, therefore, a matter for
                        /              great regret that, at the time of writir g4his Report, fewer than one in
                                       three of the States party to AdditionaIrotocol 1 had made
                                       declarations accepting the corn petence of the Commission. In these
                                       circumstances, it seems unlikely that any proposal that acceptance
                                       of the Commission’s competence should be rnadêcompülsory would
                  4.                   be accepted. Nevertheless, States should be encouraged to accept
                                       the competence of the Commission at the earliest possible date and
                                       initiatives to that effect should be taken through the United Nations
                                       and regiorial organizations.
                                                                                                           qi
        .€
                             VI.5      The Role of States and the United Nations
                                                                                                          (
           *                           175        An important means of persuading beIlirent States to
                                       demonstrate a greater respect for the laws of is through the
                                       pressure of international public opinion. In part           .this factor is a
                                                                                                   1
                                       product of media coverage,            the   activitiesof nâh-govemmental
                                       organizations and the interest of thbIîat large. Adverse
                                       publicity for violations of hurni                  baw can sometimes have
                                       considerable influence. ThibviousIy a desirable development
                                       which should be encouraged wherever possible (e.g. through the
                                       enforcement of rules of law dned to protect journalists covering
                                       armed conflicts).
                                       176        All States, however, have a measure of responsibility for
                                       ensuring compliance with the Iaws of war, even in conflicts in which
                                       they are not directly involved. Common Article 1 of the Geneva
                                        Conventions (and the corresponding provision in Additional
                                        Protocol 1) provides that “the High Contracting Parties undertake to
                                        respect and to ensure respect” for the Conventions in all                                    :
                                        circumstances. While it may be going too far to read this provision
                                        as imposing a legal obligation on neutral States to intervene in order
                                       to prevent or remedy violations of the Conventions, It does at least
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<pre>Centennial of the First International Peace Conference                                                   PRELIMINARY REPORT
Humanitarian Law and Laws of War                                                                                Greenwood -75  -
                                       suggest that a neutral State has the right, or standing, to make
                                       representations to a belligerent suspected of violations of the
                                       Conventions (or, as the case may be, of the Protocol).
                                       177        h addition, Article 89 of Additional Protocol 1 provides that:
                                             — In situations of serious violations of the Conventions or of this
                                                 FrotocoIthe High Contracting Parties undertake to act, jointly
                             7                ‘or i idividali, in co-operation with the United Nations and in
                                                 conforrrtity with the United Nations Charter
                                       178       A more rigorous application of this provision could provide an
                                      effective means of improving compliance with the laws of war.
            /                         There are indications for example that the inquiries coriducted by
                                      the United Nations into conditions in prisonerofwcamps dunng
                                      the lran-Iraq war and into the use of chemical weais bylraq had
                                      an effect in improving conditions in the camps ançt{although this is
                                      obviously Iess susceptible of proof) in deterring further use öf
                                      chemica[weapons.
                                      179        In part the effetiveness of such measures lies in the
                                      generation of adverse publicity acting as a catalyst for international
                                      political pressure on the law breaker In recent years, however, the
                                      Security Council has gone further. In addition tocondemning
                                      violations of the Iaws of war and calling upon the States concerned
                                      to respect the law, the Council has, on a number of ocoasions,
               \
                                      determined that violations of the Iaws of>war thmselves constitute a
                               jhreat to international peace and secirity ‘rd that measures to
                                      prevent or punish those violatrons hae been ordered by the Council
                                   /in the exercise of itswers underChapter VII of the Charter:’              44
                                      Such action on the part of the Security Çouncil, though obviously
                                      possible only in cases of particularly serious violations is potentially
                                      a particularlypowerfuf means of enforcement.
                            144.      See, in particular, the Council’s resolutions on the former Yugoslavia, especially
                                      Resoiutions 808 and 827.
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Humanitarian Law and Laws of War                                                                             Greenwood -76-
                             VI.6      State Responsibility
                                       180        Although not discussed in 1899, the question of State
                                       responsibility and the liability to pay compensation for violations of
                                       the laws of war was considered at length at the 1907 Conference
                                       which added to the Convention on the Laws and Customs of War on
                                       Land a newrticle 3 which 2revlded that
                                          \      be1gent party wfficiates the provisions of the
                                        \ [Regulations on the Laws ar*ICustoms of War                        on Land]
                   /
                                                  shail, if the cap demands be31e to pay compensation It
                                                  shall be responsible for all actsbommitted by persons forming
                                                  part of its armed forces.
                                       181        Remarkably, it apears that this proviston was not intended to
                                       be corifined to claims between States but was to extend to a direct
                                       right to compensation for individuals 145 This measure was seen at
                                       the time as an important inducement to States to çpmply with the
                                       Regulations and to ensure compliance by their fors
                                        182       In practice, however the payment of compensation for
                                       violations of the laws of war has been rare most conflicts leaving the
                                       defeated party in such a weak economic state that it has not been
                                       considered feasible to press for compensation The Gulf Conflict of
                                        1990-91, however is an exception lraqs dutp compensate those
                                       who suffered loss as a direct result of its invan of Kuwaif         46
                                       includes (though t is not limited to) the pajment of compensation for
                                       violations of the laws of war For examplen the oase of claims
                                       from members of the Coalition armedfarces, the Governing Council
                                        of the United Nations Compensation Commission has held that such
                                        claimants are eligible for compensation only if they were prisoners of
                                       ar and their loss or injury “resulted from mistreatment in violation of
                                        international humariltarian 1(including the Geneva Conventions of
                                        1949)I.147 Members of the civilian population in Kuwait are also
                                        eligible for compensation in respect of loss or injury resulting from
                                        violations of the laws of war by Iraqi forces.
                              145.      F. Kaishoven, State Responsibility for Warlike Acts of the Armed Forces’ 40 ICLQ
                                        (1991) 827.
                              146.      Security Council Resolution 687 (1991), para. 16.
                              147.      Goveming Councii Decision No. 11, United Nations Doc. S/Ac.26/1992111; 109 ILR
                                        612. It is not dear why members of the armed forces who were the victims of
                                        violations of the laws of war while not prisoners of war are exciuded.
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Humanitarian Law and Laws of War                                                                                  Greenwood -77-
                                       183       The duty of States to Corn pensate the victims of their
                                       violations of the laws of war quite apart from being something
                                                                            —
                                      which should be enforced for its own sake could prove to be an
                                                                                                 —
                                       important means for encouraging compliance with the laws of war if
                                       States considerect that there was a substantial likelihood of their
                                       being required to pay. While th mechanism established by
                                       Resolution 687 is likely to prove unique, consideration should be
                                      given toflnding other mêans of ensuring that the normal duty of a
                      /               State to compensate for its vioIationsof international law is properly
                  /                   applied in the context of armed conflict. ‘                           4.
                                                                                                               ‘4
                            VI.7      Human Rights Mecha’nisms
                                      184        Finally, it is possible that the various mechaoisms for the
                                      enforcement of international human rights law may b able to offer a
                                      measure.of assistance in improving compliance wlth thé laws of war.
                                      Although such bodies have no jurisdiction to applytheaws of war as
                                      such, it is possible that in cases involving allegations of human rights
                                      violations during an armed conflict (international or internal), a
                                      human rîghts tribunal will look to the laws of war for guidance in
          ‘4
                                      relation to uch issues as whether the deprivation of life in a
                                      particular case was arbitrary.
                                      185        That is what the Inter-American Comfh1ion of Human Rights
                                      did in its recent decision in Abella v. Açgetitina. The Commission
                                      was there faced with allegatior                tré had been violations of the
                                      right to life on the gro,d that fhe Argentine army had used
                                      excessive farce in overpowering a group who had seized control of
                                      an army barracks. The Commission found that there had been an
                                      internal armed conflict and stated that:
                                                     the Commissions ability to resolve claimed violations of
                                                this non-derogable right [to life] arising out of an armed
                                                conflict may not be possible in many cases by reference to
                                                Article 4 of the American Convention alone. This is because
                                                the American Convention contains no rules that either define
                                                or distinguish civilians from combatants and other military
                                                targets, much less specify when a civilian can be lawfully
                                                attacked or when civilian casualties are a lawful consequence
                                                of military operations. Therefore, the Commission must
                                                 necessarily look to and apply definitional standards and
                                                 relevant rules of humanitarian law as sources of authoritative
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<pre>Centennial of the First international Peace Conference                                                    PRELIMINARY REPORT
Humanitanan Law and Laws of War                                                                                  Greenwood -78-
                                                  guidance in its resolution of this and other kinds of claims
                                                 alleging violations of the American Convention in combat
                                                  148
                                                  situations.
                                       186        It is not intended to comment here on the facts of that case or
                                       the Comrnîssion’s findings in respect of them. The Commissiors
                                       approach to the relationship between human rights law and the laws
                                       of war s it js submittedin accordance with that of the International
                                       Court of Justice in the Nu’cIear Weap     ns Advisory Opinion
                                                                                 9                          149 and It IS
                                       likely that a similar approach will be t4npy other international
                i/’
                                       human rights bodies Provided that the relevant material on the laws
                                       of war and appropriate legal arguments aè put beforesuch a
                                       tribunal, this approach may provide a further inducement to States to
                                       comply with the laws of war.
                             VII        Conclusions
                                                                                                           ‘Til
                                        187       This Report has not attempted to cover the whole of the laws
                                        of war Some of the issues omitted from this Report, for reasons of
                                        space, are the subject of consideration elsewhere as part of the
                                        Commemoration process The conciusions of the Report can be
                                        briefly stated.
                                                                                                                 /
                              V’
                                        188        1        The 1899 Conference began a great era of law
                    \\            making in relation to the conductofwarfar The fact that the high
                                        hopes of a century of peace, which were entertained at that
                                                                                       S
                                        Conference, have been so cruelly and extensively disappointed by
                                        the realities of the twentieth century should not be allowed to blind
                                        us to the achievernents of that law-making process. As a result of
                                        the 1899 and subsequent conferences, the laws of war at the end of
                                        the twentieth century are far more advanced than they were at its
                                        outset. Moreover, although this Report has emphasised the
                                        violations of those laws during the last hundred years, violations of
                                        the law have by no means been universal the record of compliance
                                                                                                  —
                                         is poor but it is not non-existent. Where the laws of war have been
                                        implemented, they have in large measure achieved the goal of the
                              148.       Report No. 55/97, para. 161.
                              149.       See pp. 22-25 of this Report.
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<pre>t-,
    Centennial of the First International Peace Conference                                                     PRELIMINARY REPORT
    Humanitarian Law and Laws of War                                                                                  Greenwood -79-
                                           1899 Conference “to serve, even in this extreme case, the interests
                                           of humanity and the ever progressive needs of cMlisation”.        °
                                                                                                             15
                                           189        2         Nevertheless, the considerable achievement in law
                                           making has not been matched by one of law enforcement. While
                                           the laws of war undoubtedly have their defects and difficulties, the
                                           most important weakness in the laws of war today lies not in their
                                           substance but in their :irnpletnentation. It has therefore been the
                          7/               principal the of this Report that the roost urgent prionty for the
                       /                   international comrfiuntty in relation to the Laws of war is not the
                                           revision of that law but improving the record of compliance To that
                                           end, the Reort has made a number of suggestions in Part VI,
                                           although the subject is also considered throughöut the Report.
                      L
                                            190       3         The one area of substantive law vhich It is
                                           suggested, is in urgent need of revision is that relatrng to the
                                            conduct ointernal armed conflicts where Part V ofth Report has
                                            made a number of proposals for consideration Even bere however
                                            revision of the substantive law is Iess important tharadhieving an
                                            improvement in compliance with the law which already exists A
                                            substantial improvement in compliance even with the.skeletl
                                            provisions of common Article 3 would do more tGahIeve
                                            humanitanan goals in intemal armed conflicts4ould the mere
                                            adoption of a new treaty, no matter how m                           “t treaty improved
                                            the                                                                       /
                                                   substance of the law.
                                                                                            hL
                                            191        4         The Report has also suggested that there is a need
                                            for further study (though not necessarily for a revision of the law) of
                                            the relationship between the law of the United Nations Charter and
                                            the !aws of war. That need exists at two levels. First, the
                                             impUcatioris of the Charter forth’ conduct of warfare by States calls
                                             for further thought. There remains a tendency to assume that the
                                             Charter has an impact only upon whether it is lawful for a State to
                                             resort to force, whereas the limitations inherent in the right of
                                             self-defence and the obligations flowing from the decisions of the
                                             Security Council also have serlous implications for the way in which
                                             force is employed. Secondly, a more immediate concern is to
                                             determine and clarify the law applicable to the conduct of military
                                   150.       Preambie to the Hague Convention with respect to the Laws and Customs of War
                                              on Land, 1899.
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<pre>                                                                                                         PRELIMINARY REPORT
Centennial of the First International Peace Conference                                                           Greenwood -80-
Humanitarian Law and Laws of War
                                       operations by the United Nations itself. Both of these issues are
                                                                                                                             issues
                                       considered in Part III of this Report. Further work upon these
                                                                                                                        law or,
                                       has the advantage that it will not require any change in the
                                       therefore, the convening of a major international conference.
                                       192       5         With regard to the lawapplicable to the conduct of
                                                                                                                      ests that
                                       hostilities in international armed confhcts, the Report sugg
                                                                                                                         revision
                                       the two areas in which the strongest case cari be made for
                                                                                                                            tion
                                       are the law o naval warfare an thiIw of belligerent occupa
                                       Tese matters have been consideredPart IV In each case
                                        however the Report suggests that, while It may be desirable to
                                                                                                                             up a
                                        attempt a revision of the law at a later date, attempts to draw
                                        new body of law on either of these subjects is likôjy to prove of
                                                                                                                            failed
                                        considerable difficultyThere is a consequent dç4er that a
                                                                                                                         which we
                                        attempt at law reform may serve only to undermine the law
                                                                                                                               in
                                        already possess The Report suggests that revision of the law
                                                                                                                                   t
                                        these two areas should not be regarded as a priority at the presen
                                        time.                                                              ç,
                                         193      6         The law relating to nuclear weapons is the subject of
                                                                                                                             how
                                         discussion in other Reports. The present Rapportèur would,
                                                                                                                               only
                                         ever, like to record his own view that this issue can be tackied
                                         through the disarmament process                                 —           /
                                                                                                            Christopher Greenwood
                                                                                                               s and Poiitical Science
                                                                                                                           June 1998
                                                                                                                                       0
                                                                                                 International Peace  Conference onty
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