Human Rights in War
The law for the protection of war victims is one of the oldest, most certain, and most widely accepted areas of international law. It derives from two separate nineteenth-century sources. The first Red Cross Convention for the protection of the wounded and sick was drawn up at Geneva in 1864. It was in large part a response to Henry Dunant’s description in Un Souvenir de Solferino of the carnage and neglect of the wounded that he observed at the Battle of Solferino in 1859; the establishment of the International Committee of the Red Cross (I.C.R.C.) was another result of Dunant’s report. At the same time Professor Francis Lieber of Columbia University was formulating his Instructions for the Government of Armies of the United States in the Field, which was adopted by the United States to guide the conduct of its armed forces toward civilians and soldiers of the Confederacy during the Civil War. These regulations, although national in origin, were also to prove influential in the development of international law for the conduct of hostilities and for the protection of civilians, prisoners of war, and the wounded and sick.
The treaty law of today has at its core the four Geneva Conventions of 1949 for the Protection of War Victims, dealing with the wounded and sick, the wounded, sick and shipwrecked at sea, prisoners of war, and civilians. In addition, the Hague Regulations of 1907 govern the conduct of warfare on land, and the Geneva Protocol of 1925 forbids the use of poison gas and bacteriological methods of warfare in armed conflict. There are also a number oftreaties which, like the Hague Regulations produced by the great Hague Peace Conferences of 1899 and 1907, deal with the initiation of hostilities, naval warfare, and neutrality. These treaties constitute the corpus of the codified law of war.
This body of law is close to being universally accepted. The United States is a party to all of the treaties and conventions just mentioned, and there is hardly a state that is not a party to the Geneva Conventions of 1949. In addition, the Hague Regulations of 1907 were held by the Nuremberg Tribunal to be binding as customary international law even as to states that are not parties to them.
To this body of humanitarian law have just been added two new Protocols or supplementary treaties, drawn up by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts, which met in four sessions from 1974 to 1977. It was preceded by two Conferences of Government Experts convened by the I.C.R.C. in 1971 and 1972 to assist it in the preparation of treaty drafts. The history of the Conference on Humanitarian Law, like that of the U.N. Conference on the Law of the Sea, testifies to the slowness and complexity of the international law-making process.
There seems to be a twenty-year cycle in the revision of the humanitarian law of war. The Hague Regulations date from 1907, and the Geneva Conventions on prisoners of war and the wounded and sick were established in 1929. The present Geneva Conventions for the Protection of War Victims were drawn up at a diplomatic conference in 1949. And the impetus for the new Protocols to the Geneva Conventions began to be felt in 1968.
The heightened interest in the modernization of the law of war that surfaced in the late 1960s actually had two causes. One was the perceived inadequacy of existing law effectively to protect human beings involved in the conflicts of the 1950s and 1960s—Korea, Vietnam, the civil wars in Nigeria and the Congo, the Israeli-Arab conflicts, and numerous other outbreaks of violence, both within and between states. In addition, there was an emerging sense that human rights law should take account of human needs in time of war as well as in time of peace. Beginning with the 1968 Tehran Conference on Human Rights, the United Nations General Assembly turned its attention to the humanitarian law of war. It sponsored studies by the Secretariat of the inadequacies of the existing law and the need for new law. The I.C.R.C., which has traditionally acted as the guardian of the Geneva Conventions, responded to these stimuli by drawing up, with the help of the Government Experts, two new Protocols to the Geneva Conventions of 1949—Protocol I dealing with international armed conflicts (that is, those between independent countries) and Protocol II with non-international armed conflicts (or civil wars). And so the stage was set for the Diplomatic Conference itself, which was convened by the Swiss Government in 1974.
The very fact that the I.C.R.C. should have drawn up two Protocols was in itself significant. In the past, the law of war had concerned itself almost exclusively with wars between states. A short step had been taken toward the protection of human rights in times of non-international armed conflict at the 1949 Conference, when one article (out of about 400) was inserted in each of the Geneva Conventions to provide a brief bill of rights for those affected by internal armed conflicts. This modest gesture was regarded as a major development in the law, which had previously operated only on the interstate level. In actuality, it has been difficult to get countries to acknowledge the applicability of this Article 3 on non-international armed conflicts to specific situations. Even Great Britain has not conceded the applicability of Article 3 to the conflict in Northern Ireland, probably, as in the case of the other countries which have been the scene of civil strife, out of fear that reference to Article 3 might be the thin edge of the wedge of foreign intervention.
Yet the need for a body of law to regulate non-international conflicts was great, especially because most of the international armed conflicts that have taken place since 1949 have had internal elements. The war in Vietnam had this mixed character—North against South, the Viet Cong against South Vietnam, with foreign participation in combat principally by the United States. It matters little to those who are victims of armed conflict, be they civilians or military personnel who are hors de combat, whether an international lawyer would characterize the conflict as internal or international. Their need for protection from violence, for sustenance and shelter, and for due process of law is just as great in either event.
Consequently the I.C.R.C. prepared for the Diplomatic Conference an elaborate draft treaty for the protection of victims of civil conflict. The draft encountered a great deal of resistance at the Conference, largely from states, such as Pakistan, which had experienced extensive internal strife and from developing countries generally. The Protocol that emerged becomes operative only at a relatively high level of violence—when there are two armed forces in the field, each controlling enough territory to permit it to carry out sustained military operations. And many of the provisions proposed by the I.C.R.C. were simply dropped. Protocol II on non-international armed conflicts was a disappointment to countries like Canada and the United States which had taken a strong line in favor of broad protection for the victims of such conflicts.
If developing and newly independent countries were uninterested in legal safeguards relating to internal conflicts, they were ardently in favor of extending all of the international law of war to “wars of national liberation.” Such conflicts include those “in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of selfdetermination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.” The conflict in which a people fights against “colonial domination” is the rebellion of a colony against the authority of the colonial power. The United States in its time fought this kind of war of national liberation. The fight against “alien occupation” was probably intended to refer to the Israeli occupation of Arab territories and presumably was inserted in order to pick up Arab votes. Such a situation is already covered by the international law of war in any event. A war fought against the white minority governments in Rhodesia or South Africa would be a fight against a “racist regime.”
In the past, “wars of national liberation” against racist regimes or colonial domination would have been regarded as internal armed conflicts, governed only by the short bill of rights in the four Geneva Conventions of 1949. The power against which the war is waged would look upon the conflict as a rebellion governed by its own internal law and not susceptible to regulation from outside. But the developing countries, voting as a bloc, and the U.S.S.R. and its allies saw such conflicts as in reality international. They reasoned that a people unlawfully denied its right of self-determination under the U.N. Charter should not be treated as part of the colonial power but as a separate and independent state. Otherwise the colonial power would profit by the wrong it had perpetrated.
At the first session of the Diplomatic Conference, the developing countries and the Socialist bloc secured the adoption in committee of a provision making not only the new Protocol on International Armed Conflicts but all the existing Geneva
Conventions of 1949 applicable to “wars of national liberation.” The United States and some of its N.A.T.O. allies were very much troubled by the provision, not least because it gave the appearance of introducing a subjective and moral criterion into a body of law which had always been applied even-handedly to all countries participating in international armed conflicts, regardless of the legality of the cause in which they fought. “Wars of national liberation,” it was feared, would be the “good” wars to which the law of international armed conflict would apply, while other rebellions would be subject only to Article 3 and the emasculated Protocol II. But the voting strength of the developing countries and the Socialist bloc was such that they could call the tune, and the provision making the law of international conflicts applicable to wars of national liberation stayed in Protocol I. Developing countries consider it the great triumph oftheir participation in the Conference.
The developing countries were also strongly interested in a related issue—the definition of those combatants to be treated as prisoners of war and thus entitled to the protection of the Geneva Prisoners ofWar Convention of 1949. The definition of what persons are, upon capture, to be held as prisoners of war has always been linked to the protection of the civilian population. In the past it has been assumed that members of the armed forces declare themselves to be combatants by wearing uniform and carrying arms openly. They are subject to attack, but if they are captured, they have the right to be treated as prisoners of war. Civilians, on the other hand, are presumed to be non-combatants and fall within the protection of the Geneva Civilians Conventions of 1949. Combatants who disguise themselves as civilians or who use the cover of civilian status imperil the entire civilian population, because if civilians cannot be presumed to be non-combatants, they will be attacked. If some small boys and women throw hand grenades, some small boys and women who have not thrown hand grenades will be shot. In order to enforce the distinction between combatants and peaceful civilians, the combatant who passes himself off as a peaceful civilian has in the past been denied prisoner of war treatment.
In the guerrilla wars of today, fought by states with small armed forces and little or no military technology against strong military powers, it may be impossible— and tactically unwise—for combatants to wear uniform or to carry arms openly. The United States was on the receiving end of this type of warfare in Vietnam. The developing countries that had supported the concept of “wars of national liberation” pressed for a much broader definition of those entitled to prisoner of war treatment.
At each conference on the law of war, there has been a struggle between strong military powers and states that have had to defend themselves with armed forces raised from the civilian population or with guerrilla fighters. In 1907, the conflict was between Germany and small countries like Belgium and the Netherlands. In 1949, the countries that had been occupied and had been defended by resistance forces were successful in getting prisoner of war treatment for members of organized resistance movements. In 1947-1977, the struggle was between the developing countries and the large military powers. Again the developing countries prevailed. The definition of prisoners of war that emerged most recently gave that status to all combatants except those who do not carry arms openly during combat or during deployment prior to combat. Those who do not carry arms openly during these phases are entitled to prisoner of war treatment but may be tried and punished for failing to declare themselves as the combatants they are.
The new Protocol I on Non-international Armed Conflicts also gives wider protection to the civilian population, particularly against aerial bombardment. The Geneva Civilians Convention of 1949 protects enemy civilians in occupied territory and enemy civilians on the national territory of a belligerent, as well as interned civilians. However, it does not protect civilians against the effects of hostilities. The I.C.R.C. considered this to be a serious gap in the protection of civilians and had unsuccessfully attempted in the 1950s to secure the adoption of rules for the protection of the civilian population from aerial bombardment. At the Diplomatic Conference of 1974-1977, carpet bombardment and indiscriminate attacks against the civilian population were prohibited, and it was stipulated that losses to the civilian population must not be out of proportion to the military advantage to be gained. In addition, goods such as foodstuffs and drinking water supplies that are essential to the survival of the civilian population as well as works containing dangerous forces, such as dams and nuclear generating stations, are not to be attacked. It was understood that these provisions apply only to conventional bombardment and do not extend to the use of nuclear weapons.
The law of war has been relatively ineffective in curbing the use of weapons. The signal exception is the Geneva Protocol of 1925 forbidding gas and bacteriological warfare, which are in any event of severely limited military effectiveness. More typical of such attempts has been the fate of the Hague Regulations of 1907, which prohibit the use of weapons that cause unnecessary suffering or excessive harm. The law in this respect grew out of the notion that if a soldier was disabled by a bullet, there was no need to poison the bullet so that he would also develop an infection from the wound. The prohibition has been relatively ineffective. At the Diplomatic Conference and at the Conferences of Government Experts preceding it, Sweden and a group of other states, including Mexico, Switzerland, Yugoslavia, Algeria, and Egypt, attempted to get the Conference to draft prohibitions of several categories of weapons, such as napalm and other incendiaries, time delay weapons (including boobytraps), certain blast and fragmentation weapons, and small calibre projectiles. The campaign was unsuccessful. It was opposed by both the U.S.S.R. and its allies and by the United States and some of its N.A.T.O. allies, and even some small countries which realized that prohibition of some of these weapons would work against their interests. All that resulted from the Conference was a resolution recommending an international conference on the matter not later than 1979.
So far as the protection of the wounded and sick is concerned, Protocol I adds a number of safeguards to the Conventions of 1949. Of particular significance are the provisions on the protection of medical aircraft, which should facilitate prompt evacuation of the wounded from the battlefield.
The humanitarian law of war has always reflected a balancing of humanitarian- ism against the imperatives of military necessity. The very existence of this body of law reflects an assumption that unfettered violence against the enemy is not only inhumane but is also an uneconomic use of force, serving no valid military purpose. It is true that political considerations become caught up in the law—as evidenced by the treatment of “wars of national liberation” at Geneva—and that states attempt to exploit the negotiating process in order to weaken potential adversaries or to further ideological conflict. But at the core of the law of war has always been a concern with the human rights of those enemy military and civilian personnel who become the victims of war.
The law of war has been frequently violated, in some cases outrageously, but we are better off with it than we would be without it. From the perspective of the United States, the law often does no more than specify the way in which this country would wish to treat enemy personnel. There would be very few people in the United States prepared to argue that civilians should be punished without trial, that hospitals should be attacked, and that prisoners of war should be tortured for information. The humanitarian law of war is a form of human rights law operating for the protection of those who cannot be properly safeguarded by the country to which they belong. And if the enemy does not observe this body of law, it is helpful to be able to point to his unwillingness to carry out obligations that he has freely assumed. The matter can be raised in the U.N., appeals can be made to and by the I.C.R.C., and world public opinion can be mobilized in support of compliance with the law. When North Vietnam threatened to try American aviators as war criminals, it was the pressure of public opinion all over the world that brought an end to this threat. Similarly, the General Assembly has provided a forum in which to press Israel to acknowledge the applicability of the Geneva Civilians Convention of 1949 to the territories that it occupies.
These functions of the law of war are much more significant than its specific sanctions, such as the prosecution of war criminals. International law should be seen for what it does—not as a body of rules enforced by courts. The law of war is not a fully effective instrument for the protection of human rights in war, but it is the only instrument we have, and it is an edifice of law that has been painstakingly built up over more than a century. The two Protocols to the Geneva Conventions of 1949 adopted at Geneva in 1977 will have to go to the Senate for approval prior to ratification. When the Protocols enter into force, war will not be made humane, but some war may be somewhat less inhumane than it might otherwise be. The victims of war will have reason to be grateful to those who patiently hammered out the new law over a period of nearly a decade.