The Humanitarian Law of War in Change
It seems as if there were a roughly twenty-year cycle in revisions of the law relating to warfare on land—The Hague Conventions of 1907, the two Geneva Conventions of 1929, the four Geneva Conventions of 1949, and at the end of the 1960s and in the early 1970s renewed demands for further development ofthe law. It is to these proposals for change that we must now briefly turn.
The pressure for carrying the law forward has come from two sources—from the International Committee ofthe Red Cross, which has traditionally regarded itselfas the guardian of the Geneva Conventions, and from the General Assembly of the United Nations.
It will be recalled that the draft Rules for the protection ofthe civilian population which had been prepared by the International Committee of the Red Cross had been referred to governments in 1957 and that nothing more came of the Rules. At the Vienna Conference of the International Red Cross in 1965, the most that the
Conference could do was to adopt a resolution containing the following four principles:
- —that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;
- —that it is prohibited to launch attacks against the civilian populations as such;
- —that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible;
- —that the general principles of the Law of War apply to nuclear and similar weapons;.. .
The first public sign that the inertia of the humanitarian law of war had been overcome was the adoption by the International Conference on Human Rights held at Teheran in 1968 of a resolution recommending to the General Assembly that a study be made of the existing rules of law for the protection of human rights in time of war and of the need for new treaties on the subject. This resolution undoubtedly drew its inspiration from the difficulties encountered in the wars in Korea and in Vietnam, in the war between the Arab States and Israel, in the United Nations Operation in the Congo and in other conflicts that had taken place since the drawing up of the Geneva Conventions of 1949.
The General Assembly responded to this suggestion by the adoption ofResolution 2444 (XXIII), calling upon the Secretary-General to make the recommended study and affirming the four principles enunciated at Vienna. The Secretary-General in response to this resolution provided two comprehensive surveys of the state of the law, coupled with suggestions for its further development.
The International Committee of the Red Cross, thinking it appropriate to take the initiative in proposing additions to the Geneva Conventions of 1949, called a Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law, attended by delegations from over forty States. The I.C.R.C. had prepared a large number of proposals for consideration by the Experts. Both the I.C.R.C. and the First and Second Sessions of the Conference proceeded on the assumption that there should be no modifications of the Geneva Conventions of 1949 and that the task to be undertaken was the drafting of protocols to the 1949 Conventions. A Second Session of the Conference of Government Experts was convened in 1972, to which all parties to the Geneva Conventions of 1949 were invited. In the event, roughly 75 Delegations attended and took up detailed consideration of the two draft Protocols on International and Non-International Armed Conflicts which had been drafted by the I.C.R.C. At the conclusion ofthis conference, the Swiss Government announced the convening of a Diplomatic Conference on the Humanitarian Law of War to be held in Geneva for two months in February of 1974. The I.C.R.C. is charged with the task of elaborating, with the advice ofvarious smaller groups ofexperts, the texts ofthe two protocols that will be submitted to that Conference.
The draft Protocols incorporate a wide variety of new provisions which cannot be fully described here. Five main areas of concern deserve special mention. The first of these is non-international armed conflicts, upon which there will be a separate protocol—in effect a new treaty—supplementing the “mini-convention” in Article 3 common to the Geneva Conventions of 1949. Some difficulty has been encountered in finding consensus on the level of conflict to which this protocol should apply and upon the degree to which the conflict should be assimilated to international armed conflicts. The second important group of articles concerns the better implementation of the Conventions, including improved procedures for agreement on Protecting Powers, for securing the assistance of the I.C.R.C. and for training individuals about the Conventions. The draft articles on the protection of civilians, constituting the third major subject, are outgrowths of the draft Rules of the I.C.R.C. of 1956 and look to better protection of civilians and of the property necessary to their survival against aerial bombardment and other forms of attack. The fourth principal area is the possible extension of prisoner of war status to those who, fighting as irregulars or using guerrilla tactics, do not meet the requirements now laid down in Article 4 of the Geneva Prisoners of War Convention. The fifth and least controversial group of articles broadens the protection of medical personnel and the wounded and sick in both internal and international armed conflicts and also permits wider use of medical aircraft in the evacuation of the wounded and sick. The draft medical provisions owe much to the studies carried on by the Committee on International Medical Law of the Association.
The General Assembly has kept a watchful eye on the work of the I.C.R.C., about which reports have periodically been furnished by the Secretary-General. The General Assembly is manifesting a particular interest in the control of weapons which “indiscrimately affect civilians and combatants” or “which are deemed to cause unnecessary suffering”. The Secretary-General furnished to the Twenty-Seventh Session of the General Assembly in 1972 a report on napalm and other incendiary weapons, and it may be expected that there will be continuing concern with this particular weapon. The General Assembly adopted a resolution early in 1973 requesting the Secretary-General to prepare “a survey of existing rules of international law concerning the prohibition or restriction of use of specific weapons”. The resolution betrayed a certain impatience with the failure of the experts convened by the International Committee of the Red Cross to achieve agreement on a number of issues. The General Assembly will undoubtedly continue to press for progress on the new protocols, and there is every likelihood that it will continue to devote particular attention to restrictions on certain weapons, whether used against members of the armed forces or civilians, and to the protection of the civilian population against weapons and forms of warfare which have caused such grim casualties in the past.
These are days in which major developments in the law ofland and aerial warfare are afoot. Important new treaties may be expected to come of the Diplomatic Conference of 1974. Compliance remains the key problem. It will be of little avail to draft a multiplicity of new humanitarian rules if they are to achieve no more than the level of respect now accorded the Geneva Conventions of 1949.
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-  Resolution XXVIn, Protection of Civilian Populations against the Dangers of IndiscriminateWarfare, XXth International Conference of the Red Cross, Resolutions (1965), p. 22.
-  Resolution XXIII, Human Rights in Armed Conflicts, May 12, 1968, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968 (U.N. Doc. A/CONF.32/10) (1968), p. 18.
-  Dec. 19, 1968, Gen. Ass. Off. Rec., 23d Sess., Supp. No 18 (A/7218) (1969), p. 50.
-  Respect for Human Rights in Armed Conflict; Reports of the Secretary-General, U.N. Docs.A/7720 (1969) and A/8052 (1970).
-  I.C.R.C., Conference of Government Experts on the Reaffirmation and Development ofInternational Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May—12 June 1971,8 volumes variously titled (1971).
-  See I.C.R.C., Conference of Government Experts on the Reaffirmation and Development ofInternational Humanitarian Law Applicable in Armed Conflicts (Geneva, 24 May—12 June 1971),Report on the Work of the Conference (1971).
-  I.C.R.C., Conference of Government Experts on the Reaffirmation and Development ofInternational Humanitarian Law Applicable in Armed Conflicts (Geneva, 3 May—3 June 1972)(Second Session), Texts: Documentation presented by the International Committee of the RedCross, 2 vols. (1972).
-  See Conference of Government Experts on the Reaffirmation and Development of InternationalHumanitarian Law Applicable in Armed Conflicts, Second Session, 3 May—3 June 1972, Report onthe Work of the Conference, 2 vols. (1972).
-  Resolution 3032 (XXVII), Jan. 23, 1973, Doc. A/RES/3032 (XXVII) (1973).
-  Napalm and other incendiary weapons and all aspects of their possible use; Report of theSecretary-General, U.N. Doc. A/8803 (1972).
-  Cited supra n. 61.