III. Legal problems in time of war

The law of war has grown up in the context of war between one nation and another. A war between coalitions of states has been regarded as creating a network of bilateral relationships running between each belligerent state on the one side and each belligerent state in the other camp. The emergence of international forces, integrated in command structure alone or on a more comprehensive basis, has created new problems for the law of war, with which even the most recent treaties on the subject have failed to deal. For example, the Geneva Conventions of 1949 were adopted by ‘High Contracting Parties’,[1] all of which were states, and are open to accession by ‘Powers’.[2]

One of the oldest problems of combined operations by the forces of several countries has been that of determining who is entitled to war booty, to property seized in occupied areas, and to naval vessels. In the last respect, there have been a number of agreements entered into between allies concerning the disposition of enemy vessels captured through the actual collaboration of ships of the allies concerned.[3] There is some reason to question whether, in an action in which a large number of states participate, only that state or those states whose forces actually participate in the capture on land or at sea should be entitled to the benefit of the property, to the exclusion of the other participating states.[4] The community of enterprise involved in the membership of a number of states in an international military command should probably be a sufficient basis for denying that the actual captor or captors should alone profit from their action. This is not to deny that the captor should be allowed to exploit captured property for its own immediate military needs, but it does suggest that an accounting should be kept of such captured or seized property and that an equitable financial settlement should be arrived at among the states represented in the international command. What solution is applied to the disposal ofcaptured property is, however, fundamentally a matter for agreement,[5] for without such an agreement existing international law can furnish little guidance.

Some difficulty is also presented by the necessity of determining what state is the Detaining Power for prisoners of war. In those instances in which the applicable conventions impose obligations of a fixed nature on the Detaining Power, there can be little doubt about the standard ofconduct to which the Detaining Power is to be held. However, in a number of respects, the standards to be applied to prisoners of war are measured by the standards applicable in the territory or in the armed forces of the detaining state. Perhaps the most obvious example is the requirement that a prisoner of war may be visited with judicial punishment only for acts forbidden by the law of the Detaining Power or by international law and that he be tried by the same courts and according to the same procedure ‘as in the case of members of the armed forces of the Detaining Power’.[6] The same type of standard is applied in a number of other provisions.[7] If prisoners of war are held in a compound guarded by troops of states A, B, and C, who are in turn commanded by an officer of state

D, responsible to superiors drawn from the armed forces of states A, B, C, D, and

E, it may be virtually impossible to determine whether any single state is the Detaining Power. With whom the Protecting Power or the International Committee ofthe Red Cross is to communicate also becomes correspondingly uncertain. In the case of the action on behalf of the United Nations in Korea, the United Nations Command, the field force, has promulgated a penal code and regulations to be applied to the trial of prisoners of war held by that Command.[8] The existence of these directives would appear to indicate that the prisoners of war are regarded as being prisoners of the Unified Command, which functions as a Detaining Power. Since the Unified Command, as distinguished from the United States, has no penal code of its own, it would appear to follow from this view that it may be necessary to improvise a penal code in order to provide basic safeguards for prisoners of war. It might be argued with considerable force, however, that the prisoners of war are in the custody of the individual states which actually hold them and that the penal laws ofthose individual states are alone applicable to the prisoners. One solution for future international military commands, such as N.A.T.O., would be an agreement that certain states would be designated to be responsible for the detention of prisoners of war. A solution of a more fundamental nature would be a modification of the applicable treaties to substitute fixed standards for those applicable under national law, coupled with a recognition that an international military command might itself become a party to the conventions.

The internationalization of war crimes proceedings has been impeded rather than advanced by the Geneva Conventions of 1949. The effect of Articles 85, 99, and 102 of the Prisoners of War Convention is to require that prisoners of war accused ofwar crimes be tried in the same courts and according to the same law as is applicable to the armed forces of the Detaining Power.[9] Since it is improbable that the military law of a Detaining Power will authorize foreign officers to sit in judgment on its own military personnel, the creation of international tribunals of mixed composition will in most cases prove impossible. National military tribunals within an international command which try war criminals cannot be described as international tribunals if they operate only with the authorization of the supreme commander, and deserve that name only if they are convened at his direction.[10]

The apportioning of occupation responsibilities among participants in an international military command has never been satisfactorily worked out.[11] There has either had to be recognition that the state actually occupying territory is legally entitled to continue that occupation, or the area concerned has had to be divided into zones, each administered by a separate state. Attempts to bring a co-ordinated administration to the entire area or country occupied, through the medium of control machinery, have not been highly successful. It should be a natural corollary of international military command that the administration of occupied territory should be kept on an international basis even after the cessation of hostilities. This result may be achieved in a variety of ways, e.g. through an international agency representing the states which had participated in the hostilities or through the designation of a state to assume that function and to be answerable to the same group of states.

The existence of international military commands also complicates the determination of responsibility for violations of international law. The refusal of the United States Ambassador to receive a Russian protest concerning the shooting down of a Russian plane by aircraft of the Unified Command is representative of the difficulties which inhere in this matter.[12] The problem can be further complicated by an armed conflict in which not all of the members of an international military command are bound by the same treaties concerning prisoners of war and other aspects of the law of war. In the Korean action, this difficulty has been met by the voluntary assumption by the Unified Command of the obligations created by the Geneva Conventions of 1949.[13]

The ideal solution to the problem of reconciling international military commands with a law of war attuned to wars between states alone has been reached in connexion with the projected European Defence Community. Article 80 of the Treaty establishing it asserts that the Forces will respect the rules ‘embodied in conventions concerning the laws of war which bind one or more of its member states’ and will enjoy the benefits of the same treatment as national forces. More important, however, a protocol182 binds the member governments to facilitate the adherence of ‘the Community as such’ to international conventions relating to the law of war. It would appear desirable that similar action should be taken by other international commands, including the forces of N.A.T.O., notwithstanding the fact that they are less closely integrated than the E.D.C. forces. Since the conventions regarding the conduct of warfare are open to accession only by ‘Powers’, special provision would appear necessary to permit accessions by international commands and defence organizations. In the case of international military commands which are integrated in command structure alone, further amendments of the conventions, particularly those applicable to prisoners of war, would be called for to take account of the fact that a number of states would be acting through the agency of an international command. Whatever solution is adopted, there must necessarily be a complex of agreements between the parties, assigning to particular states or apportioning between states responsibilities and rights created by the law of war regarding the custody of prisoners of war, the occupation of enemy territory, the appropriation of enemy property, the trial of war criminals, and the like.

Any high military commander, whether of national or international forces, is required to enter into agreements of an international nature as an incident to the conduct of hostilities. When the supreme commander of several national contingents concludes such an agreement, he must perforce speak not only in the name of all the troops which he commands but also on behalf of the governments furnishing the troops. The instruments of surrender executed by Italy, Germany, and Japan during the Second World War were each received by a supreme commander.[14] In some cases it was specifically indicated that he was acting on behalf of certain specified governments,[15] while in others no mention was made of that fact.[16] It is quite clear, however, that in all instances the supreme commander acted as a representative of several states, thus affording an interesting instance of a nation conducting its foreign relations through a public officer of a state allied with it. Similarly, other politico-military agreements, such as that concluded between General Eisenhower and Admiral Darlan in 1943,[17] were concluded by a military commander in the name of several governments. If friendly territory liberated from the enemy must be administered by military forces because of the inability of the local government immediately to resume its functions, a ‘civil affairs’ agreement is customarily concluded with the government whose territory it is. A number of such agreements concluded in anticipation of the liberation of territory by an Allied Commander in Chief[18] followed the peculiar pattern of being executed on behalf of individual states, such as the United States or the United Kingdom, sometimes by an international commander acting in his national military capacity. A more reasonable inference from the international function of such officers would be the conclusion of the civil affairs agreement by the supreme commander on behalf of the states furnishing forces to his command. These agreements, which normally were entered into with one of the states furnishing forces to the supreme commander, performed the dual purpose of a ‘status of forces’ agreement and an authorization by the proper government of the area of a temporary military administration by the Allied Commander in Chief. In the first respect, they dealt with such familiar matters as criminal and civil jurisdiction, the settlement of claims, and immunity from taxation. In the other aspect, they defined the rights of the military forces with respect to the government of the liberated area until the proper government could assume this function, jurisdiction over the local populace, requisitions by the military forces, liaison with officers of the local government, settlement of property questions, and the use of currency. In effect, they dealt with military administration by an international military command of the territory of a participant which could not, for military reasons, immediately perform that task itself. It may be expected that agreements of this nature will continue to be necessary in international commands of the future, since even as integrated a command as the European Defence Forces is not presently charged with responsibility for the civil administration of territory.

The extent to which the law of war is applicable to the lawful and unlawful belligerent is a problem which is not peculiar to armed conflicts in which an international military command participates. However, the actual existence of military action undertaken in the name of the United Nations and the probability that wars of the future will be fought by coalitions of states in the exercise of the right of collective self-defence make this question of particular pertinence to the activities of international military forces. Suggestions have already been advanced that forces designated as those of the United Nations are, by reason of their status, not bound by the law of war and are authorized to choose from the body of law thus discarded those principles which, consistently with the dictates of humanity, may seem useful to them.[19] If this view is to be given application to that portion of the law of war which regulates the conduct of hostilities, there is reason to suppose that it will lead to aggravation of the hardships of war rather than to their mitigation. The Unified Command itself has not yielded to this view and has announced its intention to comply with the Geneva Conventions of 1949 and the applicable provisions of Convention No. IV of The Hague, notwithstanding the failure of the enemy to conduct itself similarly.[20] This action was taken voluntarily by the Unified Command, since no treaty regarding the conduct of warfare was of its own force applicable to the hostilities in Korea.

That the position which has been taken by the Unified Command is a proper one appears to be a valid inference from several considerations. In the first place, that portion of the law of war which regulates the conduct of hostilities has the purposes of protecting certain categories of persons, such as prisoners of war and peaceful civilians, from the extreme hardships of war and of preserving certain avenues to peace through the non-hostile intercourse of the belligerents.[21] Whether a party to the conflict is a single state or several states allied, whether engaged in lawful or unlawful warfare, whether or not acting in the name of an international organization, these fundamental purposes of the law retain their validity. Furthermore, since the law of war is itself dictated by humanitarian considerations, it is extremely difficult to segregate out certain ‘humanitarian principles’ from the entire body of the law.[22] Until the establishment of an effective and universally recognized international police force, modifications of the law governing the conduct of land warfare should be consistent with its long established role of ameliorating the conditions of warfare. Secondly, if forces of an international character, including those acting in the name of the United Nations, feel themselves free to depart from the law of war by selecting for application only those principles which appear of utility to them, an enemy can justifiably be expected to take the same view. The humanitarian purpose of the law of war is of itself not a sufficient inducement to belligerents to adhere to it. They must also be assured that it is made up of principles to which they have both subscribed, that it will be applied on a reciprocal basis, and that it does not furnish an undue military advantage to one party over the other. Ingenious explanations by an international force of the inapplicability of the law of war are no substitute for the certainty and mutuality which belligerents must, for their own protection, expect of the law. If this basis for agreement is lost, it is those whom the law of war seeks to protect who will suffer. A third consideration, admittedly not relevant to the Korean action, is that in the future states will probably be bound by conventions which, while referring to ‘war’, have been construed to be applicable generally to armed conflicts of an international character,[23] or by treaties like the Geneva Conventions of 1949, which apply not only to declared wars but to ‘all cases ... of any other armed conflict’.[24] Even if action by troops operating in the name of the United Nations is not a ‘war’ in its traditional sense,[25] it is inescapable that it is ‘armed conflict’. If the existing law of war is to be disregarded by those forces which wage war or carry on hostilities lawfully, failure to comply with treaty obligations voluntarily assumed after the creation of the United Nations cannot be justified by appeals to a higher morality or humanitarianism.

Although, therefore, international forces, including those acting in pursuance of recommendations of the Security Council, must at present continue to submit themselves to the law of war,[26] changed international relations may eventually call for modifications of this law. Universality of membership in the United Nations, the abolition of the veto now held by the great military Powers, the possibility of international legislation, and the establishment of international police forces would be requisites of any far-reaching changes in the law. It will then be proper to adopt rules governing the conduct of the international forces and of those of the unlawful belligerent.[27] Until that day, the great development which is taking place in the techniques of international military organization must be accompanied by deliberate conservatism in relation to the law of war, which, at the present stage of international integration, calls for such changes only as are necessary to take account of the existence of international military forces.

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  • [1] Common Article 1, Geneva Conventions of 12 August 1949 for the protection of war victims,U.N.T.S. I. 970-3.
  • [2] Article 60, Wounded and Sick Convention; Article 59, Wounded, Sick, and ShipwreckedConvention; Article 139, Prisoners ofWar Convention; Article 155, Civilians Convention.
  • [3] Instances of such agreements are collected in Phillimore, Commentaries upon International Law,vol. iii (1885), pp. 612-13, and in Wheaton, International Law, vol. ii (7th Eng. ed. by Keith, 1944),pp. 312-13, 591. See Exchange of Notes between His Majesty’s Government in the United Kingdomof Great Britain and Northern Ireland and the Government of the United States of America relating tothe Use and Disposal of United Nations Vessels Captured or Found by their Forces in the Course ofOperations for the Liberation of Europe, 7 May/15 June 1945, T.S. No. 28 (1946), T.I.A.S. 1556,which provided that an Allied Commander in Chief was to have absolute discretion over UnitedNations vessels captured by his command or within his area. When the vessels could be turned over toindividual states, they were to be restored to the state in which they were previously registered or theflag of which they had the right to fly, regardless of the captor or the flag they were flying whencaptured. See also the Naval Prize Act, 1864 (27 & 28 Vict., c. 25), s. 35.
  • [4] Cf. Downey, ‘Captured Enemy Property: Booty ofWar and Seized Enemy Property’, inA.J.I.L.44 (1950), pp. 495-6.
  • [5] See the order of the 21st Army Group, July 1944, subject: ‘Ownership of Movable PropertyAbandoned by or Captured from the Enemy’, reproduced in Smith, ‘Booty ofWar’, in this Year Book,23 (1946), at p. 238.
  • [6] Articles 82, 84, 99, and 102, Geneva Prisoners of War Convention of 1949, U.N.T.S., vol. 1,p. 972.
  • [7] Articles 20 (evacuation), 51—53 (labour), and 60 (pay). Under the Civilians Convention,U.N.T.S. I, 973, it is necessary to know what state is the Occupying Power for the purpose, forexample, of Article 73 (appeals to courts of the Occupying Power).
  • [8] Articles Governing United Nations Prisoners of War, 23 October 1951; Rules of CriminalProcedure for Military Commissions of the United Nations Command, 22 October 1950 (Trial ofAccused War Criminals); Supplemental Rules of Criminal Procedure for Military Commissions of theUnited Nations Command, 6 October 1951 (Trial of Prisoners of War for Post-capture Offences);Procedure Governing Non-judicial Punishment of Prisoners of War, 19 October 1951.
  • [9] Since Article 85 requires that prisoners of war prosecuted for acts committed prior to captureretain the benefits of the Convention.
  • [10] See p. 80, supra. 2 See p. 76, supra. 3 See p. 84, n. 59, supra.
  • [11] 181 Letter from Representative of the United States in the Security Council to the Secretary
  • [12] General, 6 July 1951, U.N. Doc. S/2232, D.S.B. 25 (1951), p. 189.
  • [13] 182 Special Protocol, annexed to the Treaty Constituting the European Defence Community.
  • [14] Italian Military Armistice, 3 September 1943, T.I.A.S. 1604; Act of Military Surrender(Germany), 8 May 1945, E.A.S. 502; Instrument of Surrender (Japan), 2 September 1945, E.A.S.493; see also Armistices with Bulgaria, Hungary, and Roumania, as cited supra, in n. 17, p. 76.
  • [15] In the cases of Italy, Bulgaria, Hungary, and Roumania.
  • [16] In the cases of Germany and Japan.
  • [17] Announcement of 7 December 1942, concerning the co-operation of French West Africa andTogoland with the American and British forces, and an accompanying letter from General Eisenhowerto the French Governor General.
  • [18] Exchanges of Notes between His Majesty’s Government in the United Kingdom of GreatBritain and Northern Ireland and the Belgian Government concerning Civil Administration andJurisdiction in Belgian Territory Liberated by an Allied Expeditionary Force, 16 May 1944,T.S. No. 19 (1946); Agreement between the United States of America and the Netherlands respectingthe Arrangements for Civil Administration and Jurisdiction in Netherlands Territory Liberated by anAllied Expeditionary Force, 16 May 1944, T.I.A.S. 2212; similar Agreements between the UnitedStates and Norway, 16 May 1944, T.I.A.S. 1514, and France, 25 August 1944, T.I.A.S. 2313.
  • [19] ‘Should the Laws of War Apply to United Nations Enforcement Action?’, Report of theCommittee on Study of Legal Problems of the United Nations, in Proceedings of the American Societyof International Law, 1952, pp. 216, 220.
  • [20] See letter ofthe United States Representative in the Security Council, cited p. 101, n. 181, supra.
  • [21] I.e. the law relating to cartels, surrenders, armistices, parlementaires, and the like.
  • [22] The possibility of a distinction of this nature is suggested in the Report of a Committee of theAmerican Society of International Law, cited in n. 188, supra, and in Taubenfeld, ‘InternationalArmed Forces and the Rules ofWar’, in A.J.I.L. 45 (1951), p. 671.
  • [23] Grob, The Relativity of War and Peace (1949), p. 217.
  • [24] Common Article 2.
  • [25] It may be possible to distinguish ‘war’ in the sense of any armed conflict between communitiesand ‘war’ in the sense of armed conflict between states whose unrestricted legal right to resort to force isrecognized by the law of nations. The law of war may be applicable to ‘war’ in its first and broadersense, which would include operations on behalf of the United Nations, as well as to ‘war’ in thissecond and more limited sense.
  • [26] If the law of war is to be modified to take account of illegal war, the first step which mightreasonably be taken is to deny that an aggressor or other unlawful belligerent acquires title to property,as now recognized by the law of nations (see Lauterpacht, ‘Rules of Warfare in an Unlawful War’, inFestschrift fur Hans Kelsen (1953) for a convincing statement of this view).
  • [27] It would appear that those changes to be effected in rights and duties in case ofillegal use offorcewhich are suggested by Professor Jessup in A Modern Law of Nations (1950), pp. 210—21, should bepostponed until that time.
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