Perspective—The Evolving Laws of Armed Conflicts
Effects to develop and broaden the humanitarian law of war have proceeded along two parallel lines of development, which have now to some extent converged. The first line of development can be dated from 1953. In that year, the International Committee of the Red Cross convened a meeting of government experts to consider the protection of the civilian population against “blind weapons” and indiscriminate bombardment. On the basis of these and other consultations, the International Committee drew up “Draft Rules for the Limitations of the Dangers Incurred by the Civilian Population in Time of War,” which were completed in 1956. While these were primarily directed to aerial bombardment, they would also of course have governed ground hostilities and bombardment by artillery and missiles. These rules, which the I.C.R.C. very much hoped would find their way into a convention supplementary to the Geneva Conventions of 1949, were approved by the International Red Cross Conference in New Delhi in 1957. But when they were presented to governments, they were received with a remarkable absence of enthusiasm. And so that undertaking actually ended in failure, although the I.C.R.C. was not prepared to concede defeat.
The whole matter came alive again with what I have been told were some words jotted on the back of an envelope by Colonel Draper, the distinguished British expert on the law of war. This happened at a further Conference of the International Red Cross in 1965, when, as a compromise, four principles, hastily drafted were incorporated in a resolution of the Conference. These principles were
- —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;
These are not highly controversial principles. The adoption of the resolution with these principles takes the Red Cross effort up to 1965.
We must now shift to the other line of development, the scene of which was the United Nations. An International Conference on the Protection of Human Rights was held in Teheran in 1968. By this time, the two covenants on human rights, one on civil and political rights and the other on economic and social rights, had been drawn up in implementation of the Universal Declaration of Human Rights. This left a certain void in the work program of the Human Rights Commission of the United Nations. Also, by this time there had been the experience of the prolonged conflict in the Middle East and the difficulties over areas occupied by Israel. There had been the war in Viet Nam, there had been the war in Korea, and there had been the U.N. operation in the Congo. These amounted in their totality to a great deal of bloodletting which should in principle have been regulated by the Geneva Conventions of 1949. All of these circumstances inspired a resolution of the Conference, in which it recommended to the General Assembly that it ask the Secretary General to make a study of two subjects: One was the better implementation of the existing conventions. The second was what new treaties, what new law, might be needed in order to supplement the existing treaties. A General Assembly resolution of December 1968 responded to this recommendation. The Secretary General was called upon, under the terms ofResolution 2444, to make this study; the resolution also affirmed the principles which had first been adopted at the International Red Cross Conference in Vienna. At this point, the stage was set for a certain overlapping of function and for the potential of rivalry between the General Assembly and the International Committee of the Red Cross, the latter of which is, as I hardly need remind you, a private international organization. On the one hand, there was a continuing concern for human rights within the General Assembly, the Third Committee, the Human Rights Commission, and the Human Rights Division of the Secretariat, coupled with a hunger to do more to protect human rights in armed conflict. On the other side was the International Committee of the Red Cross, which had traditionally regarded itself, and quite rightly so, as the guardian, as the initiator, and as the spiritual custodian of the Conventions relating to the Protection of War Victims. Who was to take the lead in this field? Was the initiative to be taken by the United Nations or by the I.C.R.C.? On the surface there have been friendly calls for cooperation and reports of the closest possible collaboration between these two bodies. But beneath the surface, there is a certain spirit of rivalry and of competition for primacy which shows itself from time to time.
Now again we turn to the concern of the United Nations with the law of war. In response to the mandate given him by the General Assembly, the Secretary-General prepared a preliminary report in 1969. In 1970 he called together a group of experts to consider what the United Nations might do, and that year’s report to the General Assembly set forth a number of ideas about what should be done, some of them based on the recommendations of the group of experts.
What was the International Committee of the Red Cross doing in the meanwhile? It got out its yellow pad and sharp pencils and fell to drafting proposals of its own. Some of them were revivals of what the I.C.R.C. had been thinking about since the early 1950s, that is to say the protection of the civilian population against what it liked to refer to as indiscriminate warfare. And the International Committee convened a conference of government experts in the spring of 1971 to consider these proposals. As you may recall from the history of the drafting of the Geneva Conventions of 1949, the I.C.R.C. had followed this procedure in the past. It had called together groups of experts after it had prepared its own preliminary drafts, and it had revised and polished its drafts in the light of what the experts had said. The next stage was that the drafts were laid before an International Red Cross Conference and discussed there. They were then sent around to governments for comments, and then finally the texts which had been refined in this way were submitted to a diplomatic conference. The International Committee of the Red Cross was prepared to follow this same procedure in 1971, but because of the increasing size of the international community, it decided to invite government experts from 40 different countries.
The work which was to be done related both to international and to noninternational armed conflicts. As you know, the only real law that there is at the moment on internal armed conflicts is Article 3 common to the four Geneva Conventions of 1949. The International Committee of the Red Cross was thinking in terms of an elaboration of the law of Article 3 in the form of a complete new protocol to the Conventions of 1949. But they had also devoted a great deal of attention to various aspects of the law with respect to international armed conflicts which required elaboration. The third principal field, which proved to be one that stood almost by itself, was the elaboration of further medical law for the protection of the wounded and sick and of those who cared for them.
Even with these expert delegations from approximately 40 countries, there were complaints that this was not sufficiently representative group. We heard over and over again that there were not enough people from developing countries. Where experts could have been found in some of these countries, I am not quite clear. But the fact was that there was a widespread sentiment that this was not a properly representative body. The I.C.R.C. yielded to the force of public opinion and scheduled a second conference of government experts; this time it invited all of the parties to the Geneva Conventions of 1949, of which there are now roughly 135. In preparation for this gathering, which was held in Geneva in the spring of 1972, the I.C.R.C. had drawn up two protocols, one on international armed conflicts and the other on non-international armed conflicts. Meanwhile, the United Nations was holding back and waiting to see what the I.C.R.C. would do. The 1971 and 1972 reports of the Secretary General to the General Assembly were little more than reports of what had happened at the two conferences of government experts.
At the Conference of Government Experts which was held in Geneva in the spring of 1972, there were delegations from roughly 75 countries—a fairly good proportion of the parties to the Conventions of 1949. There was no representation from the People’s Republic of China, although the PRC, as a party to the Conventions, was invited to send experts. (Strangely enough, the Republic of China is not a party to the Conventions of 1949.) But North and South Korea sent delegations, as did the Republic of Vietnam, but there was no one from Hanoi. There was a vocal Cuban delegation. The delegations from developing countries were better represented than they were the previous year. All in all, there were 400 purported experts on the law of war to go over the texts that had been prepared by the International Committee of the Red Cross.
One cannot simply assemble 400 people in one room and expect them to go to work on the texts before them. The Conference was organized in four commissions. One commission dealt with medical matters and included a working group on medical aircraft and medical evacuation. The second commission was concerned with internal armed conflicts. The third took up the law of international armed conflicts, and the fourth implementation of the Conventions.
For a delegation the size of that of the United States, it was not too hard to staff these four different commissions. For a developing country with a delegation of one or two people, the situation was very difficult indeed—doubly difficult in light of the fact that the one or two might actually not be very knowledgeable about this complex body of law. I recall a representative of a developing country in a committee speaking along these lines: “You people from developed countries know about this body of law. You’ve dealt with it in the past. You’re familiar with the shades of meanings in the employment of various words. When someone asks about how one provision of a draft can be reconciled with a term in one of the 1949 Conventions, you know what’s involved and what the issues are. We have no such sense of the subtleties, and it will take us some time to learn about this history the rest of you know about.” Many delegates from developing countries are thus still engaged in reading themselves into this body of law. An enhanced knowledge of the law and what is in the Conventions will certainly be one of collateral benefits of the conference planned for 1974. Countries which have a fund of expertise in the humanitarian law of war can and should assist those states which are “developing countries” in terms of their knowledge of this law.
The United States Delegation had hoped that it would be possible to get down to some serious negotiating on the texts and that there would be some “indicative” voting to reflect the preferences of the experts. In fact, both proved to be largely impracticable. The idea of indicative votes—that is to say, not binding votes but a show of hands to show how people felt—was resisted by the socialist states and by many of the developing countries. There were a number of reasons for this. One was that some delegations apparently had instructions not to commit themselves to anything in any way whatsoever. Other delegations just had no sense of how they ought to vote. It would, for example, have been difficult for the United States Delegation to know how to vote on numerous issues, without much more thought and without further refinement of the proposals. As a result, the products of the Conference are for the most part the reports of drafting committees (often consisting merely of compilations of the various texts proposed) and the lengthy reports of the rapporteurs on the course of the debates. The texts which will be submitted to the diplomatic conference in 1974 are now being drafted by the lawyers of the International Committee of the Red Cross, which serves as a sort of international drafting bureau.
Thus far I have talked about procedure. We must now turn to some of the principal issues of substance faced by the two Conferences of Government Experts.
There had been a great deal of talk in the United Nations and elsewhere about taking a human rights approach to the law of war. After all, if law had been laid down for the protection of human rights in time of peace, it would be natural to start thinking about the protection of human rights in time of war. A principal theme which ran through many of the statements made at the two Conferences was that one should think in terms of protection of the individual. In the view of some, this meant that the same basic safeguards would apply both in international and noninternational conflicts and that there would be a common body of law applicable in civil and international wars. The Norwegian experts in particular took this position.
As you can well understand, if one attempted to have uniform law for both international and noninternational armed conflicts, one would encounter all sorts of anomalies. It is easy enough to say that prisoners taken in both civil and international conflicts should be treated as prisoners of war and that the requirements as to fixed distinctive signs and bearing arms openly should be lowered in both instances. But the assertion that rolls so trippingly off the tongue overlooks the fundamental difference between the two types of conflicts and the need of governments in power to protect themselves in the event of domestic disorder and insurrection. The United States and other developed countries therefore resisted this notion that there should be identical law relating to prisoners and other matters in civil and international conflicts. The most that could be agreed upon was that there should be as much uniformity as possible in the international and noninternational protocols. The majority took the view that there would have to be different principles underlying the two instruments.
A second great issue was whether special rules should be framed for wars of national liberation. At the first Conference of Government Experts in 1971, there was a certain indecisiveness about the nature of a “war of national liberation.” At the second Conference, there was agreement by those who talked in these terms that such a war is an international conflict. A war of national liberation may take the form, they said, of an anticolonial war or a war fought against unlawful aggression or an unlawful occupation of territory. Many Arab and African states came out strongly for this concept, and they received a certain measure of support from the U.S.S.R. and other socialist states. The proposition was put that there had been an unlawful occupation of Arab territory by Israel and that the measures being taken by guerrillas and others against Israel constituted a war of national liberation of Arab soil from Israeli control. So far as anticolonialist wars are concerned, these were stated to be international conflicts because peoples fighting for self-determination and for recognition of their separate statehood should be recognized as international persons. These international persons are engaged in war with other states, and the conflicts accordingly are international ones within the meaning of Article 2 of the four Geneva Conventions of 1949. The difficulty with this view is, of course, that only “Powers” may become parties to the Geneva Conventions of 1949. A liberation movement in Angola or Mozambique or the population of an occupied territory is not a “Power.” Since these groups could not be parties to the Conventions, no other State which is a Party could be compelled to apply the Conventions in conflicts with such groups. But the far greater danger was that the notion of a war of national liberation would entail a distinction between “good” and “bad” wars, between “just” and “unjust” wars, between the side which was fighting lawfully and the side which was fighting unlawfully in terms of the initial legality ofthe resort to force. Just as soon as one asserts that one belligerent is acting lawfully and the other is acting unlawfully, the door is opened to discrimination against certain war victims, to charges that the enemy is always the wrongdoer, and ultimately to barbarism. It is only by putting the victims of war on a basis of complete equality, whether they fight for the unlawful aggressor or for the country fighting in self-defense, that the protection of war victims—prisoners of war, the wounded and sick, and civilians—can be assured. Individual human beings will suffer if special powers and rights are given to those who fight just wars, lawful wars, or “wars of national liberation.” And so the United States strongly resisted this whole notion of “wars of national liberation.”
A third principal question taken up at the Conferences was the position of guerrilla fighters. There was, I think, a certain amount of sentiment that the requirements of Article 4 of the Geneva Prisoners of War Convention of 1949, inherited from the Hague Regulations, were somewhat too strict and that there could be an opening up of prisoner of war status to a wider category of people. A good deal was made of the MACV directive dealing with the categories of prisoners entitled to prisoner of war treatment. The argument was made that if the United States can do this sort of thing in Vietnam, why can we not, on a wider basis, give treatment as PWs to those who do not meet these four solid requirements of Article 4 of the Geneva Prisoners of War Convention of 1949. A number of delegations suggested that the requirements for prisoner of war treatment should be reduced to three: (1) that the individuals concerned should conduct their operations in accordance with the law of war; (2) that they should distinguish themselves from civilians by carrying arms openly, wearing a distinctive sign, or by some other means—that is to say that there should be a variety ofmeans by which a combatant might declare himself as such; and (3) that they should be commanded by an officer responsible for his subordinates. To this the answer of the United States was, in the context of internal armed conflicts, a firm no. So far as international conflicts are concerned, the United States took the position that we could live with a requirement of openness, if it were shown by either the carrying of arms openly or by a fixed sign recognizable at a distance. But it was absolutely essential in the view of the United States that combatants should show their character either by carrying arms openly or by wearing a fixed distinctive sign— a helmet, armband, or something of that sort. So far as the third requirement of being commanded by an officer responsible for his subordinates was concerned, the position of our Delegation was that there should not only be a responsible commander but also that the troops should belong to a party to the conflict, so that there would be not just a responsible commander but a responsible party to the Conventions to which to look for redress.
The discussions sounded in many ways like the corresponding debates at the Hague Conferences in 1899 and 1907. Barbara Tuchman has a wonderful chapter in The Proud Tower on the politics of the Hague Conferences. As one reads over the proceedings of those Conferences and compares them with what was said in 1972, one has a certain sense of deja vu. Ranged on the one side were and are countries which, whether in 1899, 1907, or 1972, rely upon civilian resistance, upon militia, upon the mobilization of the local population—countries without large standing armies. These are the ones which call for a broad definition of those entitled to treatment as prisoners of war. At the other extreme, the major military powers which rely on standing, regularly constituted forces do not welcome the thought of having to treat every combatant, every guerrilla, every civilian who takes a shot at the troops as a lawful combatant entitled to PW treatment. One could not help but feel that some of the international legal problems of the twentieth century are very little changed from those of the nineteenth.
The fourth area of concern was internal armed conflicts and how these should be treated. Article 3 of the four Geneva Conventions of 1949 is the only provision in the treaty law which bears on the subject. The position of the International Committee of the Red Cross, which I believe was shared by the United States Delegation, was that there should be substantially more protection extended to the victims of internal armed conflicts. The characteristic pattern in these days is that there is an interrelationship between internal and international conflicts. Internal conflicts often grow into international ones, and international conflicts spill over into internal ones. Article 3 by itself is too fragile an instrument.
The crucial question was naturally how to define a noninternational conflict, thereby establishing the threshold at which the law for such conflicts would become applicable. Most of the experts seemed to be in agreement that a protocol on noninternational armed conflicts should not apply to riots in the streets, disturbances, city tumult, banditry, and other forms of relatively low-level violence. These do not bear sufficient resemblance to war to warrant their being governed by war law. But to identify the precise level of internal violence calling for application of a body of international humanitarian law, deriving from the law governing hostilities between states, is not a simple matter. The British were naturally much concerned about the situation in Northern Ireland and wanted a rather high threshold for the application of any new law. The United States Delegation seemed disposed to put the floor somewhat lower, probably because we are not faced with any insurrection or large-scale violence in these days.
Some other delegations which thought in a rather simplistic and sentimental way about internal conflicts were willing to see PW treatment extended to all sorts of participants in such conflicts. Most of the major powers mistrusted the liberal conferment of PW status and would have preferred, as the United States did, to see a strengthening of the judicial safeguards for those apprehended during civil conflicts. We discovered that a number of the developing countries were as worried as we were about the definition of the scope of applicability of a protocol on noninternational armed conflicts. The Indonesians, for example, being no strangers to civil war, were steadfast in their resistance to making very much law, derived from the law on international war, applicable to internal armed conflicts. This is one of the cases in which the lines between developed and developing countries, large military powers and small military powers, vanished; and one found alliances of states drawn from different systems, geographical areas, and power structures.
The International Committee of the Red Cross also proposed that in mixed civil and international conflicts, international law be applied. Again developing countries with experience of internal conflicts resisted this idea, as did the United States and most of its NATO allies. The view of the I.C.R.C. has now, I think, been shunted aside. We will have only international armed conflicts and noninternational conflicts and no special body oflaw applicable to conflicts ofmixed character.
I mentioned at the outset that the development of international humanitarian law had been stimulated by the concern of the I.C.R.C. with the protection of the civilian population from indiscriminate bombardment. A number of provisions on permissible targets were incorporated in the two draft protocols. They sought to establish a category of “objects of a civilian character” which were not to be attacked. “Objects indispensable to the survival of the civilian population” was another term employed. This is the old, old problem of the extent to which the civilian population can be protected from aerial bombardment, or for that matter artillery fire and the use of naval ordnance. The United States and the United Kingdom were firm in asserting that the Conference should take a restrained attitude toward any new law in this field.
Categorical statements are always dangerous, but I think that it may be fair to say that any articles which might be drafted on aerial bombardment would have the effect of making nuclear bombardment unlawful and could call for drastic restrictions on bombardment of a conventional character. On the other hand I have the feeling that a number of military people are not quite as sensitive as they might be to a very large body of public opinion on this subject. I am quite frankly worried about what the reaction of the Senate Foreign Relations Committee will be when the conventions which emerge from this process are laid before the Committee. Will Senators say that the draftsmen of the treaties have gone too far in the protection of the civilian population or will the Committee be heard to say that the treaties do not go far enough and that the United States Government should have been more forthcoming in accepting safeguards for civilians? With the present composition of that Committee, we may face a problem, not by way of having given away too much but by not having asked for enough.
A sixth principal area of concern related to weaponry—the types used as well as the mode of their employment. The Swedish Delegation, reflecting the views of a country which assumes a certain moral superiority, took the lead in calling for restrictions on certain weapons and their use. It acquired support from the delegations of the Netherlands, Switzerland, Egypt, Mexico, and a number of other countries as well. Proposals were put forward which would prohibit the use of nuclear weapons, chemical and bacteriological weapons (a sensitive issue in view of our difficulties on the ratification of the Geneva Protocol of 1925), and weapons having an adverse effect on the environment. I think that deep in their hearts the proponents of these extreme measures had and have no hope of success but put them forward for political reasons and to give completeness of coverage to the drafts. Where we face some immediate danger is with respect to napalm and other incendiaries. Last year the General Assembly asked the Secretary General to make a study of these weapons, of how they are employed and what their effects are. The Secretary General convened a group of experts to advise him. There was no United States military expert in the group, although there was one American, a doctor, who was invited by the Secretariat. This report will be submitted to the General Assembly at this year’s session.
Another weapon about which Sweden was concerned was fragmentation bombs which project small caliber pellets. Although there is no current study of such weapons going on in the United Nations, Sweden has said that it will bring up this subject at this year’s session of the General Assembly. Sweden is bearing down heavily on incendiaries and fragmentation weapons and will receive a certain amount of support in its campaign. There are difficult times ahead for the large military powers on these two issues.
The seventh major matter taken up at the meetings of 1971 and 1972 was better implementation of the existing conventions. There has been no designation of a Protecting Power within the contemplation of the Geneva Conventions of 1949 since the Second World War. All attempts to secure Protecting Powers in Viet Nam have been unsuccessful. At the 1972 Conference, the United States put forward a proposal that if the parties have not agreed on a Protecting Power, each party to the conflict would put forward a list of states which would be acceptable as Protecting Powers. If the same state showed up on both lists, there would be an attempt made to enlist that state as the Protecting Power. In the event of failure to secure agreement in this way, the International Committee of the Red Cross would assume not only the “humanitarian” functions of the Protecting Power but the full functions of a Protecting Power across the board. The I.C.R.C., to our gratification, said that it would be willing to undertake that task. This proposal by the United States achieved a considerable degree of support. But there was a great deal of resistance to it from the Soviet Union and other members of the Soviet bloc.
Other proposals were made by several delegations about implementation of the Conventions. It was suggested that there should be a permanent body to assume the functions of the Protecting Power. There were various proposals concerning instruction of the armed forces and teams to assist in securing compliance with the Conventions and to make inspections. Some delegations thought that there should be regular meetings of the parties to the Geneva Conventions of 1949. The I.C.R.C. brought up the old question of superior orders. Fortunately, this last was dropped by the wayside.
Finally, there was a commission to deal with the medical provisions, which were actually drafted and are in generally good shape. This was the one case in which the Conference was able to draw up articles which seem to me to have a rather good chance of acceptance with only minor drafting changes. The articles are well drafted, their implications have been thought through, and people understand what the words mean; and so there will be some sound new medical provisions in the protocols on international and internal armed conflicts. There will be new arrangements about medical aircraft, allowing them greater freedom of evacuation. The United States Delegation wanted to have arrangements whereby medical aircraft could operate over the battlefield without prior agreement. That idea did not secure general support, but, subject to agreement, there will be wider scope for the use of medical aircraft. I have by no means done justice to the very solid record of accomplishment on the medical articles.
What of the future? The International Committee of the Red Cross is back at its headquarters with new yellow pads and new sharp pencils, preparing new drafts for submission to the next International Red Cross Conference, to governments, and finally to a diplomatic conference which will be held in Geneva in 1974. Within a group of friendly states, including a number of NATO countries, there have been certain deliberations carried on with a view to concerting policy. The United States Government will do everything possible, I am confident, to secure support for its views prior to the 1974 conference.
On the United Nations side, there will be a continuing watch to see if the International Committee of the Red Cross moves ahead. If the I.C.R.C. stumbles and falls, the United Nations will move in on this subject in a large way. The I.C.R.C. is actually a much more effective, nonpolitical instrumentality for work in this field, and it is to our common interest to keep the center of activity in that organization. The United Nations cannot be kept from becoming increasingly concerned with weapons, not—unfortunately—through the route of disarmament (as the United States Government seemingly would prefer to have it done) but by way of treaty prohibitions both on the battefield use of certain weapons and on the use of certain weapons against civilians.
My own impression is that the job of bringing up to date the humanitarian law of war is being rather well done by the International Committee of the Red Cross and the conferences that it has convened. Inevitably, as a humanitarian organization, it leans in the direction of placing restrictions on belligerents and of extending new protections to civilians and other war victims. These may not always be acceptable to the United States. On the other hand, there is real uncertainty and a sense of unease about what might be done in the United Nations in the future.
The development of international humanitarian law deserves your close attention over the next two or three years.