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Home arrow Law arrow Humanizing the laws of war : selected writings of Richard Baxter
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V. Conclusions

The adoption of the new Geneva Conventions and the general revision of textbooks and military manuals which this change in the law has made necessary constitute a suitable occasion for an abandonment of the principles of a duty of obedience imposed by international law, of war treason, and of war rebellion. The practice of states, recent judicial decisions, and the provisions of the new Geneva Conventions provide evidence that these concepts serve neither the interests of occupying Powers nor of occupied populations. In the light of that evidence, the following would appear to be a desirable formulation of the law:

  • 1. Subject to the general limitation ofreasonableness and the specific limitations imposed by the Hague Regulations and the Geneva Convention relative to the Protection of Civilian Persons in Time of War, international law permits a belligerent occupant to prohibit and punish, but does not itself prohibit, conduct by the inhabitants of occupied areas which is hostile to him or which is inconsistent with the security of his forces or administration.
  • 2. In conformity with the Geneva Civilians Convention, the occupant must announce in advance those acts which he will penalize. The occupying Power must be recognized to have a wide range of legislative competence to forbid acts which may reasonably be considered to imperil his safety.

3. Like the spy, the individual who commits hostile acts or acts inconsistent with the security of the occupant may not be penalized for such acts after he has joined or rejoined the armed forces of his own state.

Admittedly, the civilian non-combatant is increasingly exposed to the economic and social burdens of war.[1] It is true also that the distinction between combatant and non-combatant grows more difficult to draw as new weapons of mass destruction are developed.[2] The practical difficulties with which the law of war is faced in these areas make it the more imperative that his lot under belligerent occupation, which is particularly appropriate to legal regulation, be made the subject of a body of law which takes account of the present-day needs of the civilian population without doing violence to the legitimate requirements of the occupant. It is in such measures as this that convincing proof may be given that the international law of war has continuing utility and validity.

  • [1] Gutteridge, op. cit., p. 319.
  • [2] See Nurick, ‘The Distinction between Combatant and Noncombatant in the Law of War', inAmerican Journal of International Law, 39 (1945), p. 680.
 
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