Tha Laws of Armed Conflicts. A Collection of Conventions, Resolutions and Other Documents

1536 Pages·2016·6.43 MB·English

by  Schindler Dietrich

THE LAWS OF ARMED
CONFLICTS
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THE LAWS OF ARMED
CONFLICTS
A Collection of Conventions, Resolutions and
Other Documents
Edited by
DIETRICH SCHINDLER
Professor Emeritus of International Law
University of Zurich
Honorary Member of the International Committee
of the Red Cross
and
JIRI TOMAN
Professor of Law
Santa Clara University
Fourth revised and completed edition
MARTINUS NIJHOFF PUBLISHERS
LEIDEN/BOSTON
2004
A C.I.P. Catalogue record for this book is available from the Library of Congress.
Printed on acid-free paper.
ISBN 90-04-13818-8
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INTRODUCTION
THE DEVELOPMENT OFTHE LAWS OFARMED
CONFLICTS
The present collection reproduces the texts of conventions, draft conventions
and resolutions on the law of armed conflicts which have been adopted since
the codification movement started in the nineteenth century. Its first edition
appeared in 1973.1 It was followed by two revised and completed editions in
1981 and 19882 and by a French edition in 1996.3 With each edition, the
number of texts has increased, due to the rapid development of this branch of
international law. While the first edition contained 71. the second had 80, the
third 87, the French edition has 107 and the present one 115. In order to give the
reader access to all conventions and similar texts adopted since the nineteenth
century, older conventions that in the course of time were replaced by newer
ones (such as the Geneva Conventions adopted before 1949) have also been
reproduced in all editions.
Developments up to World War I
Until the middle of the nineteenth century, only customary law regulated ques-
tions of warfare. Common traditions and practices of European states, military
manuals of national armies and bilateral agreements concluded in wartime
between belligerents (cartels, capitulations) contributed to the formation of
customary rules. It was only in the second half of the nineteenth century that
states started concluding mulilateral conventions. Several factors contributed
to this development.
First, the introduction of compulsory military service changed the nature of
warfare. Large national armies took the place of small professional forces
which had been subject to rigid discipline. Wars therefore were fought on a dif-
ferent scale from before. In this situation, a growing need was felt for a binding
and widely accessible codification of rules governing the conduct of war. The
Institute of International Law, in the preface to its Oxford Manualof 1880 (No.
3), which served this purpose, called for a clear set of rules to end the “painful
uncertainty” and the “endless accusations” experienced in recent wars. It
emphasized that such rules must be made known among all people.
Second, the number of victims greatly increased due to the enlargement of
armies and the improvement of arms technology. This was the decisive factor
for the foundation of the Red Cross and the adoption of the Geneva Convention
1 Schindler/Toman (eds.), The Laws of Armed Conflicts: A Collection of Conventions,
Resolutions and Other Documents, Leiden, A.W. Sijthoff; Geneva, Henry Dunant Institute,
1973, 795 pp.
2 Second revised and completed edition, Alphen aan den Rijn, Sijthoff & Noordhoff; Geneva,
Henry Dunant Institute, 1981, 993 pp.; third revised and completed edition, Dordrecht,
Martinus Nijhoff Publishers; Geneva, Henry Dunant Institute, 1988, 1033 pp.
3 Schindler/Toman (eds.), Droit des conflits armés. Recueil des conventions, résolutions et
autres documents, Geneva, Comité international de la Croix-Rouge/Institut Henry-Dunant,
1996, 1470 pp.
INTRODUCTION
of 1864 (No. 38), which, in turn, gave the impetus to the conclusion of further
conventions on the law of war.
Third, during the second half of the nineteenth century, a growing convic-
tion spread over the Western world that civilization was rapidly advancing and
that it was therefore imperative “to restrain the destructive force of war”
(Oxford Manual, No. 3, preface). The Declaration of St. Petersburg of 1868
(No. 9)states “that the progress of civilization should have the effect of allevi-
ating as much as possible the calamities of war”. Similarly, the preamble to the
Hague Conventions of 1899 and 1907 on the laws and customs of war on land
(Nos. 7 and 8)speaks of the “ever increasing requirements of civilization”.
Finally, the codification of the law of war was stimulated by the progress of
the codification of private law on the European Continent in the same period.
The first steps taken in view of the codification of the laws of war were the
Lieber Instructions of 1863 (No. 1) and the Geneva Convention of 1864 (No.
38). The codification movement reached its first and decisive peak at the two
Hague Peace Conferences of 1899 and 1907. Never since that time has it been
possible to adopt conventions on as many different aspects of the laws of war as
at these conferences. The conventions adopted in the following decades were
mainly intended to develop and refine rules embodied in earlier conventions
and to adapt them to changed circumstances.
Among the basic principles to be found in all conventions, mention should
first be made of the distinction between armed forces and civilians and between
military objectives and civilian objects. This distinction is essential for both the
question of who may take part in hostilities and the determination of the persons
and objects against which acts of war may be directed or which are to be pro-
tected. The Declaration of St. Petersburg of 1868 (No. 9) states that “the only
legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy”. Persons who do not take part or who
have ceased to take part in hostilities and civilian objects may not be attacked.
As to the means of warfare, the ruling principle remains “that the right of
belligerents to adopt means of injuring the enemy is not unlimited”4and that it
is forbidden “to employ arms, projectiles and material of a nature to cause
unnecessary suffering”.5
The period between the two world wars
After World War I, a period of neglect of the laws of war set in, although the
war had given ample proof of the inadequacies of existing conventions. The
prevailing opinion was that a revision of the laws of war would undermine con-
fidence in the League of Nations and the new methods of preventing war. Only
the Geneva Convention on wounded and sick was revised in 1929 (No. 45) and
completed by a convention on prisoners of war (No. 46). Moreover, two rudi-
mentary protocols on the prohibition of the use of poisonous gases (Geneva
4 Brussels Declaration of 1874 (No. 2), Article 12; Oxford Manualof 1880 (No. 3),Article 4;
Hague Regulations of 1899 and 1907 (Nos. 7–8, Annex), Article 22; Resolution 2444
(XXIII) of the UN General Assembly of 19 December 1968 (No. 33), par. 1(a); Protocol I
Additional to the Geneva Conventions, of 1977 (No. 56),Article 35(1).
5 St. Petersburg Declaration of 1868 (No. 9),Article 13(e), Preamble; Brussels Declaration of
1874 (No. 2),Article 13(e); Oxford Manualof 1880 (No. 3),Article 9(a); Hague Regulations
of 1899 and 1907 (Nos. 7-8, Annex), Article 23(e); Protocol I Additional to the Geneva
Conventions, of 1977 (No. 56), Article 35(2).
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INTRODUCTION
Protocol of 1925, No. 13)and on submarine warfare (London Protocol of 1936,
No. 87) were adopted. Further attempts to regulate new problems, especially air
warfare and the protection of civilians against modern means of warfare,
remained unsuccessful (see Nos. 27, 28, 47). Thus, when World War II broke
out, the laws of armed conflicts could not cope with the horrors of war which
surpassed those of World War I.
Developments after World War II
World War II was followed by a similar period of neglect. When in 1949 the
International Law Commission of the United Nations selected the topics for
codification, the majority of the Commission declared itself opposed to the
study of this subject. It was considered that if the Commission, at the very
beginning of its work, were to undertake this study, public opinion might inter-
pret its action as showing lack of confidence in the efficiency of the means at
the disposal of the United Nations for maintaining peace.6
In the same year, however, on the initiative of the ICRC, the Geneva
Conventions were revised and an additional convention on the protection of
civilian persons in time of war was adopted (Nos. 49–52).Although the United
Nations kept aloof from this enterprise, its efforts for an international guarantee
of human rights, especially the Universal Declaration of Human Rights,
adopted on 10 December 1948, left their imprint on the 1949 Conventions.
They had the effect that the traditional law of war was gradually transformed
into a human rights oriented law. The Conventions of 1949 speak of the
“rights” of the protected persons instead of only imposing obligations on the
belligerents. Moreover, the terms “law of war” and “law of armed conflicts”
were slowly replaced by the new term “international humanitarian law”.
The Hague Conventions of 1899 and 1907, dealing mainly with the conduct
of hostilities, remained unchanged. This caused a growing discrepancy between
the revised Geneva Conventions and the outdated Hague Conventions.
However, on the initiative of UNESCO, a Hague Convention on the protection
of cultural property in the event of armed conflict was adopted in 1954 (No.
71).In 1956, the ICRC, recognizing that the 1949 Conventions did not afford a
sufficient protection to the civilian population against indiscriminate warfare,
drafted “Rules for the limitation of the dangers incurred by the civilian popula-
tion in time of war” (No. 30) with a view to having them adopted by an interna-
tional conference. They were approved by the International Red Cross
Conference of New Delhi in 1957, but remained virtually without any response
from governments. This discouraged the ICRC from taking further steps until
the United Nations gave a fresh impetus in 1968.
Between the 1960s and the 1980s
It was not until the mid-1960s that a new interest in the law of armed conflicts
became apparent. It was brought about by the armed conflicts in Vietnam, the
Middle East and Nigeria–Biafra and by the struggles of peoples against colo-
nial and alien domination and racist regimes. Beginning in 1968, the UN
General Assembly periodically adopted resolutions demanding that wars of
6 Report of the International Law Commission to the General Assembly on its First Session,
Yearbook of the International Law Commission, 1949, p. 281, paragraph 18.
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INTRODUCTION
national liberation be regarded as international armed conflicts and freedom
fighters treated as prisoners of war (see No. 54).Also in 1968, the International
Conference on Human Rights in Teheran, convened by the United Nations, and
the United Nations General Assembly adopted resolutions under the title
“Respect for human rights in armed conflicts”, requesting the Secretary-
General to take steps (a) to secure the better application of existing humanitar-
ian conventions, and (b) for the adoption of additional humanitarian
international conventions to ensure the better protection of civilians, prisoners
and combatants in all armed conflicts and the prohibition and limitation of the
use of certain methods and means of warfare (Nos. 32 and 33). Aremarkable
aspect of these resolutions was that they linked the development of the law of
armed conflicts with the international protection of human rights. In the fol-
lowing year, the International Red Cross Conference in Istanbul invited the
ICRC to work out proposals for the completion of humanitarian conventions.
The ICRC, in 1971 and 1972, convened two conferences of government experts
and prepared two draft protocols additional to the Geneva Conventions of
1949. ADiplomatic Conference convened by the Swiss Federal Council held
four sessions in Geneva between 1974 and 1977. On 8 June 1977, it adopted the
two Protocols Additional to the Geneva Conventions (Nos. 56 and 57).
The two Protocols filled lacunae that had been strongly felt for years. In the
first place, they contain provisions on the protection of the civilian population
against effects of hostilities, provisions for which efforts had been undertaken
in vain since the early 1920s. Secondly, the basic principles of the Hague
Conventions of 1899 and 1907 on the conduct of hostilities were reaffirmed
and developed, a fact particularly important in view of the considerable age of
these conventions and the many new states that had no part in their elaboration.
Thirdly, Protocol II brings more elaborate rules on non-international conflicts.
The minimum rules embodied in Article 3 common to the Geneva Conventions
of 1949 proved to be insufficient in view of the great number of internal con-
flicts and the magnitude of their humanitarian problems.
The Protocols of 1977 were supplemented by the United Nations
Convention on prohibitions or restrictions on the use of certain conventional
weapons, adopted in Geneva on 10 October 1980 (No. 20). In 1976, the UN
General Assembly had already adopted a Convention on the prohibition of mil-
itary or any hostile use of environmental modification techniques (No. 18).
Since the end of the Cold War
Anew period in the development of international humanitarian law started with
the end of the Cold War in 1989. It brought far-reaching innovations.
Humanitarian issues and humanitarian law began to attract more international
attention than in any earlier period. Most armed conflicts in this period have
been internal conflicts. During the Cold War, the conflict between the super-
powers had overshadowed all other conflicts. Internal divergencies, caused by
ethnic, religious or political differences, could be held under control. When the
Cold War ended, many regimes broke down and internal conflicts erupted. In
several states rival groups, often driven by ethnic or religious fanaticism,
became engaged in embittered fights. Internal conflicts began to cause even
greater humanitarian problems than had occurred during the Cold War. Unlike
international wars, these wars were not conducted by armed forces trained in
the conduct of hostilities and familiar with the law of war, but by armed groups
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INTRODUCTION
lacking a clear command structure, having no military discipline and unfamiliar
with humanitarian principles. The conventions on humanitarian law, moreover,
were inadequate insofar as they were primarily conceived for interstate wars,
not for internal conflicts. Only Article 3, common to the four Geneva
Conventions, and, in a more restricted way, Protocol II of 1977, are applicable
in non-international conflicts.
Shocked by the systematic disregard of the most fundamental principles of
human rights and humanitarian law, an International Conference for the
Protection of Victims of War, convened in Geneva from 30 August to 1
September 1993, adopted a declaration urging all states to ensure respect for
international humanitarian law and calling upon them to take certain measures
to that effect (No. 60).
A most important development of the post-Cold War period was brought
about by the Security Council, when it decided, for the first time in 1992, that
large-scale violations of human right and humanitarian law and the ensuing
magnitude of human suffering can constitute a threat to international peace and
give rise to measures under Chapter VII of the Charter.7Based on this finding,
the Security Council not only authorized the use of force in cases of humanitar-
ian catastrophes, but also set up two international criminal tribunals, one for
Yugoslavia in 1993, and one for Rwanda in 1994, to prosecute persons respon-
sible for serious violations of international humanitarian law (Nos. 109 and
110).The Security Council, by these decisions, assumed the role of a supreme
guardian of international humanitarian law.
The two Tribunals have greatly contributed to the clarification and develop-
ment of humanitarian law. The Yugoslav Tribunal found that many rules origi-
nally applicable only in international armed conflicts have in the course of time
become customary rules applicable also in non-international conflicts.8It enu-
merated a considerable number of such customary rules. Further, the Tribunal
found that, as a consequence of this, the distinction between international and
non-international conflicts has lost much of its importance. The law of internal
armed conflicts, by way of custom, has been increasingly assimilated to the law
of international armed conflicts. It is to be noticed in this connection also that
most conventions on humanitarian law concluded in the past few years have
been made applicable to both international and internal conflicts.9
The events that have occurred since the end of the Cold War have not only
brought about important decisions of the Security Council and of the two inter-
national criminal tribunals but also induced governments to conclude a number
of new treaties. The following treaties are to be mentioned: the Chemical
Weapons Convention of 1993 (No. 22),the two new Protocols to the Weapons
Convention of 1980, namely Protocol IV on blinding laser weapons and the
amended Protocol II on mines, booby traps and similar devices (No. 20,annex),
the Rome Statute of the International Criminal Tribunal of 1998 (No. 111), and
7 See especially resolutions 794 (1992) of 3 December 1992 (Somalia), 929 (1994) of 22 June
1994 (Rwanda), but also 770 (1992) of 13 August 1992 (Bosnia and Herzegovina) and 1244
(1999) of 10 June 1999 (Kosovo).
8 Decision of the Appeals Chamber of 2 October 1995 on the Tadic jurisdictional motion, para-
graphs 96–137, in International Criminal Tribunal for the Former Yugoslavia, Yearbook
1995, pp. 54–110; and in International Criminal Tribunal for the Former Yugoslavia, Reports
1994–1995,I, pp. 461–501.
9 See the conventions listed in the following paragraph.
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