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War and internationalhumanitarian lawShirley E. Freeman a b & Helen Ormiston Smith aa Kew, Victoria, 3101, Australiab 1 Stevens Close, Melbourne, Victoria, 3101,AustraliaPublished online: 22 Oct 2007.

To cite this article: Shirley E. Freeman & Helen Ormiston Smith (1997) War andinternational humanitarian law, Medicine, Conflict and Survival, 13:2, 116-124, DOI:10.1080/13623699708409326

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WAR AND INTERNATIONAL HUMANITARIAN LAW

War and International Humanitarian LawSHIRLEY E. FREEMAN AND HELEN ORMISTON SMITH

Kew, Victoria 3101, Australia

The background to and key recommendations of the various measures comprisinginternational humanitarian law are discussed, and a call made for their more effectiveenforcement through the International Court of Justice, United Nations peacekeepingforces, and war crimes tribunals.

KEYWORDS Additional Protocols Chemical Weapons ConventionGeneva Conventions Hague ConventionsInhumane Weapons Convention International humanitarian law

Background

'All's fair in love and war'... or is it? It seems that from earliest times warriorshave moderated their behaviour, often out of evident self interest. Thus atruce might be called to enable the crops to be brought in. The safe conductof emissaries was guaranteed, and the meaning of the white flag seems to havehad widespread acceptance. Similarly the care of the wounded and burial ofthe dead was sometimes made possible by the temporary cessation ofhostilities. The nature of the code of conduct varied from time to time, andbetween cultures, and the degree of adherence to such a code obviously variedalso. Thus the treatment of prisoners of war differed between cultures, as didthe level of protection given to non-combatants including women andchildren.

In medieval Europe the chivalry of knights represented a significantmoderation of warrior behaviour, and in Japan the Samurai tradition wasequally important, if different in kind. Other cultures imposed restrictions ofdifferent kinds on warring parties, and in the case of the Australian Aboriginalpeople war seems to have been highly ritualised, and to have been less thanbarbaric.

The notion that something as brutal as war can be modified by a body ofhumanitarian law seems illogical, and indeed impossible to many people. Yetconflict of any kind is rarely total. Since much of our behaviour is instinctivethis may represent an awareness that total conflict might lead to the death ofall parties and the destruction of the society involved. Combatants wish towin and to survive, even if they are often persuaded that to die for the causeis honourable. If we consider a group of adolescent boys squabbling on aplaying field we may hear 'Pick on some one your own size!' (Aggression is

MEDICINE, CONFLICT AND SURVIVAL, VOL. 13, 116-124 (1997)PUBLISHED BY FRANK CASS, LONDON

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acceptable, but the contestants should be equally matched.) 'No hitting belowthe belt! Don't kick a man when he's down!' Thus our desire to vanquish theadversary should or need not involve wounding him mortally. That manymen may have been kicked to death in dark alleys does not invalidate thispoint.

We may agree that the purpose of war is to overpower the opponent, andthat a belligerent is justified in using any amount and kind of force that isnecessary for this end. However such degrees and kinds of violence as arenot necessary for overpowering the opponent should not be permitted. Thepoint has often been made that the realization of the purpose of war is in noway hampered by consideration given to the wounded, prisoners and topersons not engaged in the fighting.

The dichotomy between acts of warfare and humanitarian conduct hasbeen noted by many writers, and is indeed stark. However it has existed tosome degree throughout history. The case for humanitarian concepts receivedconsiderable impetus during the 18 th and 19th centuries, due to the writingsof people such as Grotius and Rousseau.

Restraints

The 1868 Declaration of St Petersburg, established under Tsar Alexander II,noted that the object of weakening the military forces of the enemy wouldbe exceeded by the employment of arms which uselessly aggravate thesuffering of disabled men, or render their death inevitable. The declarationhad in mind the use of explosive bullets, specifically projectiles under 400grammes in weight.

The restraints to be placed on combatants are therefore of two kinds; first,there is a behavioural constraint which involves protection of non-combatantsetc. Then there is a limitation on the type of weapon that is acceptable.Medieval knights considered the cross-bow inhumane, because it could defeatthe armour of a knight from a distance. The Declaration of St Petersburgaddressed the question of exploding bullets. The dum-dum bullet, namedafter the factory where it was made in India, shattered on impact and wastherefore classed as an exploding bullet. Such bullets and some other modesof warfare were banned by the Hague Conventions of 1899 and 1907. Inparticular we may note that the use of projectiles whose sole purpose was thediffusion of asphyxiating or deleterious gases was prohibited. The Conventionwas 'based on the laws of humanity'.

The birth of the humanitarian ideal of the Red Cross dates from the carnageof the battle of Solferino in 1859. Henri Dunant, a Swiss national, was presentat Solferino by chance. In this battle some 38,000 men were killed in thespace of 15 hours. The wounded were left without help; many died of thirst,as was to happen again in the Yom Kippur war more than a century later.Dunant improvised medical assistance with the help of local civilians, gettingwater from homes, and bandages from people's clothing. Dunant's account

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of this episode, A Memory of Solferino, appeared in 1861, and led to theformation of the International Committee of the Red Cross. The first GenevaConvention covering the care of the wounded and sick was established in1864. By 1867, 12 major powers had ratified it.

This was the time of the American Civil War, and in 1863 President Lincolnpromulgated a text known as General Order No. 100. The text was preparedby a Committee headed by a lawyer named Lieber. After several abortiveattempts to have this draft incorporated into International Law, it was adoptedby the Hague Peace Conference in 1907 and formed the basis of the HagueConvention no.IV concerning the Law and Customs of War on Land. Theregulations that form part of this Convention specify that 'The right ofbelligerents to adopt means of injuring the enemy is not unlimited.' Theseregulations remain the relevant law in the greatly changed circumstances ofmodern war, and have led to the formulation of a number of additionalConventions since the Second World War.

The gross violation of these regulations by Nazi Germany led to theIndictment presented to the International Military Tribunal in Nuremberg in1945. Similar trials took place in Tokyo. At the present time the InternationalCourt of Justice in The Hague, which is the principal judicial organ of theUnited Nations and the supreme tribunal ruling on questions of internationallaw, has before it the question of genocidal atrocities which are reported tohave taken place in the former Yugoslavia. We hear daily of the evidence beingdiscovered by the International War Crimes Tribunal.

Chemical and Biological Weapons

The prohibition in the Hague Conventions of the use of asphyxiating ordeleterious gases did not stop the belligerents in the First World War fromthe widespread use of toxic chemicals. This use added to the horror of theconflict, but does not seem to have influenced the final outcome. The inter-national community responded to the suffering caused by chemical warfareby negotiating the Geneva Protocol of 1925. This simple document (there isonly one page of text) bans the use of toxic chemicals and bacteriologicalweapons in war. This Protocol achieved widespread adherence, but a numberof States entered a caveat whereby they reserved the right to retaliate withchemicals. It thus became a 'No first use' Protocol. Further, not all Statesratified it; the United States only ratified in 1975, although by then it hadbecome part of customary international law.

The protocol banned the use but not the development and stockpiling ofchemical and bacteriological weapons, so the restraint it offered to use couldat any time have been set aside. Chemicals were not used in World War II; itis likely that the Geneva Protocol played some part in this, but it is arguableif this was the only reason. After World War II there were a number of incidentsin which chemicals (chiefly mustard gas) seem to have been used, but therewas no widespread use until the Iran-Iraq conflict in the eighties. Iraq attacked

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Iranian targets, both military and civilian, with mustard gas and with nerveagents.

Mustard gas (actually it is a liquid) causes horrendous burns, rather akinto thermal burns. Many casualties may survive; death in the short term isusually due to lung damage. The so-called nerve agents were discovered byGerman chemists during the Second World War and are volatile liquids whichcause rapid death by interfering with the nervous system.

Because of the limited scope of the Geneva Protocol a new, comprehensiveChemical Weapons Convention was negotiated in Geneva over a period ofmany years. This was signed in 1993, and prohibits (among other things) thedevelopment, production, stockpiling and use of chemical weapons. Further,it provides for procedures to verify compliance with the Convention.Compliance monitoring will include the presence of international inspectorsat the facilities destroying chemical weapons, and will provide for the ongoingmonitoring of non-production. Since the illicit production of chemicalweapons could take place within the civilian chemical industry, this meansthat such industry will be subject to on-site inspections and data reporting.It is the first international treaty to have such terms, which are obviouslynecessary if nations are to abandon an entire weapons system.

The prohibition on the use of bacteriological weapons which is containedin the Geneva Protocol was extended to a ban on production and stockpilingin the Biological Weapons Convention of 1972. This Convention containedno provision for the verification of compliance; procedures which might beadopted to do this are under consideration at present.

Inhumane Weapons

These Conventions represent notable limitations on the weapons that maylegitimately be used in armed conflicts. Because they have developed fromthe Hague Conventions they are sometimes referred to as Hague Law. Thetreatment of prisoners of war, which was codified in the Hague Conventionswas extended in the Geneva Conventions of 1929 and 1949. These Con-ventions also provide for the protection of non-combatants and all personswho are hors de combat. Humanitarian considerations such as these aresometimes referred to as Geneva Law, while restrictions on certain types ofweapons are Hague law. The distinction is more convenient than real. Furtherrestrictions on the use of some classes of conventional weapons (Hague law)were achieved by the United Nations Convention on Certain ConventionalWeaponry of 1981. Prohibitions or restrictions of the use of conventionalweapons which may be deemed to be excessively injurious or have indiscrimi-nate effects were drafted. Perhaps better known as the Inhumane WeaponsConvention, this addresses the use of weapons such as mines, booby traps,incendiary weapons and those which cause injury to the body by fragmentswhich are not detectable by X-rays. Laser and weapons which cause blindingwere also subjected to restrictions on use or banned. Thus weapons which

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may be excessively injurious or which have indiscriminate effects are banned.However, it should be noted that soldiers are permitted to be armed with

weapons which can effectively stop a foe from attacking them. A man witha musket cannot fight a man with a modern rifle. An effective small arm mayneed to cause grievous injury; humanitarian considerations must be balancedby the exigencies of war.

Non-combatants

Subsequent to the signing of the Geneva Conventions of 1949 it became clearthat the level of protection they provided in law for civilians was insufficientin a world in which technological change frequently altered the character ofconflicts. The invention of the military aeroplane subsequent to the HagueConventions of 1907 radically increased the risk to non-combatants. Thepost-war world saw an increase in internal and 'mixed' external conflicts.The Hague Conventions of 1949 applied only in international conflicts. Inthe post-colonial era wars of national liberation were fought, and ethnictensions frequently increased. In the 1970s the International Committee ofthe Red Cross prepared draft protocols to supplement those of 1949 whichtook account of this change in the nature of conflicts. The Swiss FederalGovernment was then asked to convene a Conference in Geneva to considerthese drafts. This Conference was attended by some 120 states, and also, forthe first time, by liberation movements such as the African National Congress.This contrasts with the first Geneva Convention for the relief of the woundedand sick of armies in the field which was established in 1864. By 1867 12major powers had ratified it. It was essentially a European convention; ahundred years later a different world required broader laws, and also attracteda broader range of participants.

The draft protocols were codified in the two additional protocols of 1977;these were, and remain, controversial. Protocol I extends previously acceptedprinciples of the laws of war to meet modern conditions. It aims to providea more precise and extensive protection for civilians from modern weaponry.Military objects and civilian objects have been defined, and attacks againstcivilians or civilian objects prohibited. Indiscriminate attacks causingexcessive loss of life were also prohibited. 'Excessive' was defined in relationto the direct military advantage to be anticipated. Further, such illegal attacksby way of reprisal were also prohibited. A reprisal may be considered as anact, which would otherwise be illegal, undertaken in order to compel anenemy to desist from illegal activities. As such it may seem reasonable,however, reprisals frequently mean that the innocent suffer. They tend toprovoke further illegal acts, so that we see a tit for tat situation such as hascharacterised the Arab-Israeli confrontation. It has truly been said thatviolence begets violence, until the level of aggression is such that dialoguetowards resolution of a problem becomes almost impossible.

The Italian Government, when ratifying Protocol I, entered a reservation:

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'Italy will respond to serious and systematic violations by an enemy of theobligations imposed by Additional Protocol I ... with all means admissibleunder international law in order to prevent any further violation.' Thisstatement seems to say that there are limits beyond which a government maynot be expected to exercise restraint; in extreme situations it may be impelledto take exceptional measures.

Starvation of civilians is now prohibited, and the natural environment maynot be exposed to long-term, widespread and severe damage. Nuclear powerstations are not to be targeted. The disaster at Chernobyl spread radio-activefallout across northern Europe. Had this been due to enemy action the civiliansand soldiers of both warring sides might well have been exposed. Much ofthe radioactivity that might be broadcast in such an attack would decay overa period of decades; however, given the long half-life of trans-uranic elementssome contamination would be virtually permanent.

Internecine Wars

Perhaps the most contentious issue addressed in the Additional Protocolsrelates to wars of national liberation, guerrillas and other less well-definedconflicts. Article 1, para. 4 of Protocol I incorporated ' armed conflicts inwhich peoples are fighting against colonial domination and alien occupationand racist regimes in the exercise of their right of self-determination ... inaccordance with the Charter of the United Nations' into the category ofinternational armed conflict. This important innovation shifts wars of nationalliberation from the legal category of non-international conflict to that ofinternational conflict and consequently tightens the humanitarian law regimethat is applicable to such conflicts. This article created much controversy earlyin the negotiation of the Protocols, but in the end the rule was adopted by aclear majority; 80 states were in favour, one against (Israel) and 11 abstained(all Western countries).

The United States decided not to ratify this Protocol, chiefly on the groundsof rejection of this article. The Presidential message to the Senate declaredthat this article 'elevates the international legal status of self-described"national liberation" groups that make a practise of terrorism.' This is nottrue; Protocol I does not alter the legal status of any group. It means onlythat certain peoples engaged in such a war may make a declaration to theeffect that the whole body of humanitarian law should apply to that conflict.It cannot therefore be said that humanitarian law either legitimises any formof war or weakens the ban on terrorism. Indeed, Protocol II, article 1, para2 states that the Protocol shall not apply to situations of internal disturbancesand tensions, such as riots, isolated and sporadic acts of violence and otheracts of a similar nature, as not being armed conflicts. There is nothing in theseProtocols to suggest that states should 'go soft' on terrorism, rather the reverse- see Protocol II, Article 4 para. 2. It should however be noted that one man'sterrorist may be another man's heroic resistance fighter. Regardless of the

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justice or otherwise of the cause espoused by terrorists, the perpetrators ofacts of violence should receive the protection of the Declaration of HumanRights, and should be given a fair trial. The story of the Birmingham Sixshould be a warning that innocent men may be coerced into meaninglessconfessions, while the actual terrorist may go free. The presumption ofinnocence should not be overwhelmed by a police force under extremepressure to get a conviction.

Perhaps equally contentious are the provisions relating to guerrilla warfare.According to the new law a combatant may, in limited circumstances, omitto comply with his obligation to distinguish himself from the civilianpopulation, that is, he may resort to guerrilla warfare. It appears that acombatant may avail himself of this exception only in occupied territory andduring a war of national liberation. The situation in France during the SecondWorld War may be relevant. The position regarding guerrillas is of coursecomplex; however, the argument put forward by the United States that thenew rule weakens the protection of civilians is unacceptable. It is difficult tounderstand why combatants taking cognisance of the Protocol need notcomply with the laws of war in the case of guerrilla operations. Attacks oncivilians remain illegal. Respect by a government for humanitarian considera-tions does not amount to recognition of the insurgents or their claims. Perhapsthe principal achievement of this rule relating to guerrillas is that combatantsshould be constrained not to open fire on civilians on the off-chance that theymay be guerrillas.

Overview

It has truly been said that taken as a whole the Protocols represent a significantadvance in international humanitarian law applicable in armed conflicts.Political considerations which are not related to humanitarian law shouldnot stop states from ratifying the Protocols. Difficulties of interpretation areamenable to resolution; states may make a declaration or reservation at thetime of ratification, should there be an anxiety about a particular article. Thematter is of some importance as the major powers, who all took part in thenegotiations, are among those who have not ratified. There are no doubtmany reasons for this which may perhaps be no more serious than bureaucraticinertia. However in some cases states have not wished to be shown, retro-spectively, to have been guilty of inhumane acts. Thus the area or 'blanket'bombing by the Allies of Hamburg and Dresden and the fire bombing ofTokyo would now be considered illegal. Efforts to destroy the enemy's moraleby such attacks may in fact lead only to a stiffening of that morale.

Australia did not ratify the Additional Protocols until the early part of thisdecade. Many major states have still to do so.

We believe that the only legitimate reason that a state might have for failureto accede to humanitarian law would be if such law failed to take account ofthe exigencies of war. The wording of the protocols has striven to avoid this,

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by defining concepts such as excessive force as force greater than that neededto achieve the military objective. The Inhumane Weapons Convention of 1981has similarly remained unratified by a number of states. However, its relevancein today's world was highlighted by the recent controversy in the UN aboutanti-personnel mines. The present rule that minefields should be marked, thatfragments should not be undetectable with X-rays, and that mines shouldspontaneously disarm after a period of some months was all presaged in the1981 Convention. The experience in such countries as Cambodia hashighlighted the ongoing devastation that results from 'illegal' minefields.

In the area of Hague law the Chemical Weapons Convention of 1993 isthe most recent example. This was signed in Paris in January 1993 by thegreat majority of the nations of the world. It will enter into force when some65 states have ratified it; this is expected to happen later this year.* However,neither the United States or Russia has ratified, although they are holders ofthe largest stocks of chemical weapons in the world. There has been specu-lation that, as such, they might ratify simultaneously. However the processof ratification is stalled in the US Senate. On 30 April 1996 the Senate ForeignRelations Committee reported favourably on the Convention and it was thenup to the Majority Leader to schedule the vote, which was expected to be favour-able. However the leader was Robert Dole, who resigned to concentrate on hiscampaign for the presidency. The new Leader, Senator Trent Lott, was expectedto schedule a date for the vote, but appears to be stalling; as of 20 June hehad made no decision about the date for the vote. In the year of the presidentialelection it would seem that party political considerations have come first.

It may be relevant to note that Article VI.2 of the US Constitution providesthat international law shall be part of 'the supreme law of the land'.

Many people of good will welcome the body of international humanitarianlaw which has developed over the years, but point out that as it cannot beenforced it is something of a toothless tiger. This is true, although thepeacekeeping forces of the UN, the International Court of Justice, and bodiessuch as War Crimes Tribunals go some way to achieving enforcement. It isnotable that these bodies have been more active in recent years, and thisactivity has been more generally accepted by sovereign states. The genocidein Bosnia and Burundi highlights tragically the need for enforcement.However the laws of humanity and the conscience of mankind constitute apotent force in themselves. In an age when television brings the reality ofgenocide into our living rooms we cannot dismiss such acts as being far away,and no concern of ours. Nor does this happen; people feel disempowered inthe face of such tragedy, and possibly a little numb. Many people do not knowof the existence of international humanitarian law, still less are they aware ofits comprehensive nature or its complexity. It is important that people knowthat genocide is illegal, as well as being appallingly inhumane.

We were reminded recently of the work of men such as Thomas Clarkson

* Hungary was the 65th ratification in November 1996 - Ed.

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and William Wilberforce in bringing about the abolition of the internationalslave trade. These men mounted a campaign which mobilized British publicopinion on a human rights issue for the first time. The campaign emphasisedthe illegality of slavery. In the early part of the last century Clarkson was ableto collect a million signatures on petitions from a population of some 20million people, many of whom were illiterate. Needless to say, the pro-slaverylobby was also very active, but the knowledge that slavery was not onlyabhorrent but also illegal gave many people the courage to oppose it. Maywe not today campaign as individuals and as a nations for the acceptance ofthe body of international law?

To many people the slaughter of civilians and prisoners of war is a horrorthat cannot be separated from the inevitable horror of war itself. This is notso; we cannot stop wars, but the universal acceptance of humanitarian lawwill mitigate the suffering at least of non-combatants. When the war is finallyover this may go a long way in assisting the return to something like normality.

Our discussion of international humanitarian law is of necessity quiteincomplete; we have attempted only to highlight some important issues.Further information including treaty texts can be obtained from the Internet.The international Committee of the Red Cross (ICRC) can be found at http://www.icrc.org/. International humanitarian law is at http://193.247.225.45/ICRCNEWS/292a.htm.

The Geneva 77 protocol is at http://193.247.225.45/ICRCNEWS/3 Ia6.htm.

(Accepted 29 October 1996)

Shirley Freeman was previously a Senior Principal Research Scientist with the DefenceScience and Technology Organization of the Australian Department of Defence. Fora decade she was senior technical adviser to the Department of Foreign Affairs andTrade, and supported the work of the Australian Permanent Mission to the UNConference on Disarmament in Geneva, where she helped to draft the ChemicalWeapons Convention. Dr Freeman has published widely in the areas of physiologyand pharmacology, and in 1989 was made a Member of the Order of Australia (AM)for Public Service.

Helen Ormiston Smith graduated from Melbourne University in physics andmathematics, then taught in secondary schools for some years. The year her son Davidwas born she completed an honours year in geophysics. In 1989 she took up a positionas lecturer at Latrobe University, where she taught physics to future teachers of physics.She obtained the degree of Master of Education for an analysis of the effect of discourseon science. She was working towards a PhD when cancer metastasized in her spinalcord, causing a progressive paralysis. When she could no longer write she continuedto work using her computer.

She was a competent water colour painter, and with the help of her art teachermodified her technique to compensate temporarily for the loss of motor control inher hands. She died on 4 October 1996 aged 43. She is survived by her husband Robertand her son David, now 13.

Correspondence: 1 Stevens Close, Melbourne, Victoria 3101, Australia.

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