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Military

Humanity In Warfare: The Law Of Civil War

CSC 1984

SUBJECT AREA Topical Issues

 

 

WAR SINCE 1945 SEMINAR

 

Humanity in Warfare:

The Law of Civil War

 

Major Gerard J. Boyle, USMC

 

2 April 1984

Marine Corps Command and Staff College

Marine Corps Development and Education Command

Quantico, Virginia 22134

 

TABLE OF CONTENTS

 

 

INTRODUCTION 1

 

 

I. AN HISTORICAL PERSPECTIVE 3

A. The Early Development of the Law of Arms/Chivalry 3

B. The Codification of the Law of War 6

 

 

II. HOSTILITIES 11

A. Commencement of Hostilities 11

B. Weapons 12

C. Bombardments and Sieges 15

D. Stratagems 18

E. Espionage 19

F. Reprisal 19

III. PRISONERS OF WAR 24

A. The 1949 Geneva Prisoners of War Convention 24

B. The Code of Conduct 29

 

 

IV. WOUNDED, SICK AND SHIPWRECKED 35

A. Persons Protected by the 1949 Geneva Conventions 35

B. Treatment 37

 

 

V. CIVILIAN PERSONS 39

VI. OCCUPATION 43

A. Definition 43

B. Civilian Persons in Occupied Areas 44

C. Control of Civilians in an Occupied Area 45

D. Permissible Methods of Control 46

E. Property in Occupied Areas 47

 

 

VII. THE CHANGING METHODS OF WAR SINCE 1945--THE LEGAL

IMPLICATIONS 51

A. Internal War as an International Event 52

B. Humanity in Warfare 53

 

 

VIII. SOME SPECIFIC CONFLICTS 60

A. Cypress 1974 60

B. Dominican Republic 1965 63

C. Malaysia 1957-1960 66

D. Lebanon 1958 67

E. Laos 1953-1960 73

F. Congo 1960-1964 76

G. Yemen 1962-1964 79

H. El Salvador 1980-1984 80

 

 

INTRODUCTION

The law of war requires that belligerents conduct hostilities with

regard for the principles of humanity and chivalry. Its principles

are clearly evident in General MacArthur's confirmation of the

death sentence of General Yamashita:

 

 

The soldier, be he friend or foe, is charged with the

protection of the weak and unarmed. It is the very

essence and reason for his being. When he violates this

sacred trust he not only profanes his entire cult but

threatens the very fabric of international security. The

traditions of fighting men are long and honorable. They

are based upon the nobelest of human truths, sacrifice.

This officer, of proven field merit, entrusted with high

command involving authority adequate to responsibility,

has failed this irrevocable standard.1

 

 

The purpose of this paper is to explain the law of war--its

development and application in the contemporary world. A brief

overview is given of all aspects of the law of land warfare. This

overview serves two functions. First, it creates a cornerstone of

knowledge of the history, definitions, development and rules.

Secondly, it serves as a jumping off point for a more intensive

look at the law of war in internal conflicts.

 

 

The nature of war has changed dramatically since 1945. Internal

conflicts, as opposed to international confrontations, have become

the focal point of bellicose activity. Unconventional tactics (and

weapons) have become the norm. Yet the law of war has been

virtually unchanged since the Geneva Conventions of 1949. These

laws were written to regulate conventional wars of an international

nature and provide little regulation of internal conflicts. In

this legal void lies today's quandry.

 

 

This paper and the accompanying seminar is not an intensive look

into the history of a particular country and its civil strife.

Rather, it is an extensive look at the nature of the "controls" on

war as they have developed and been applied to civil strife over

the past three decades.

 

 

1Action of the Confirming Authority, General Headquarters, U. S.

Armed Forces, Pacific, 7 February 1946.

I. AN HISTORICAL PERSPECTIVE

 

 

A. The Early Development of the Law of Arms/Chivalry

 

 

War has plagued mankind since Cain slew Abel. Man has opposed his

conscience not by putting an end to war, but by attempting to

regulate it. The regulation of war stems from the introduction of

humanity into warfare.

 

 

While the humanitarian pulse first beat in the ancient Jews,

detailed rules of warfare first emerged among the Greeks and

Romans. The Greeks and Romans, for example, spared particular

peoples and buildings from destruction.1 The modern law that

protects children, schools, libraries, museums and similar

buildings from bombing and that accords special status to doctors

and clergy stems from the Greek and Roman tradition of respect for

poets, philosophers, artists, and men of intellectual distinction

and from their rules, which recognized temples and embassies as

invoidable.2 The Greeks and Romans customarily observed the modern

outlawing of poison or poisonous weapons, whose use was considered

cowardly.3 Plato states another rule that has been codified in the

present law: the dead must not be despoiled, or their burial

denied.4 Truces were arranged for a variety of reasons, among

which one was to allow burial of the dead.5

 

 

Their was no law of war that dictated these humane gestures, nor

did the Greeks and Romans always observe them.6 Yet, the Greeks

and Romans did go beyond the occasional Jewish practice of

extending mercy and forgiveness to their vanquished foes by

regularly observing the customs outlined above.

 

 

Though these customs have been characterized as humanitarian, the

Greeks and Romans often articulated pragmatic rationals for their

observance, thus introducing the motive of self-interest that has

long been the curious handmaiden of humanitarianism in the

development of the law of war. Military commanders have greatly

influenced the development of the law of war. The author of the

second treaties on international law was, for example, a Spanish

judge advocate general; Alexander reminded his troops in Asia Minor

that they should not destroy that which would soon be theirs; and

the Swedish commander Gustovus Adolphus is said to have placed

Grotius' Rights of War and Peace classic alongside the Bible

beneath his pillow when he slept.7

 

 

The Catholic Church arose out of the ruins of the Roman Empire, and

its theologians contributed to the development of the law of war

the concept of the just war.8 The Church admonised its subjects

that unjust war was no more than robbery on a majestic scale.9 A

just war was one whose aim was "to avenge injuring, that is when

that people or city against whom war is to be declared has

neglected either to redress injuries done by its subjects, or to

restore what they have wrongfully seized."10

 

 

The Middle Ages concept of the "law of arms" developed concurrently

with the "just war concept."11 The law of arms was broader than the

present law of war, for it governed discipline within armies and

other internal administrative matters as well as regulated the

battlefield conduct of soldiers toward their enemies.12 It

applied, moreover, whenever Christians fought one another, whether

in international war or in conflicts that would today appear more

analagous to internal wars.13 The detailed rules of the law of

arms were based on a code of chivalry and their influence was such

that one scholar has commented: "The notion of a law of nations

was preceded and prepared for by the chivaleric ideal of a good

life of honor and loyalty."14

 

 

The Treaty of Westphalia in 1648, which ended the Thirty Years War,

is celebrated as the birthdate of the modern state system. During

the Thirty Year War Grotius, considered the father of international

law, published his Rights of War and Peace.15 At least one

historian believes that this book was inspired by Grotius'

"humanitarian desire to ameliorate the practices which he had

witnessed during the Thirty Years War."16 Grotius work sets out a

legal framework within which states could work. Since warfare had

been the midwife to this new international order, it is not

surprising that the law of war was the first branch of

international law to develop.17

 

 

Grotius advocated a policy of minimum destruction; detailed

application of the principle: soldiers could not attack churches

and temples, burn fields or raze horses; the protection of non-

combatants; enumerated the categories of those entitled to

protection: children, women, men whose kind of life is repugnent

to arms; sparing the lives of enemy soldiers who surrender.18

 

 

Grotius principles were accepted as customary international law.

Military commanders began to practice them. By the mid nineteenth

century these principles had begun appearing in military manuals.19

Even before 1850, states had embodied them in treaties20, which

Grotius had recognized as a method of regulating conduct in war.21

 

 

B. The Codification of the Law of War

 

 

Diplomatic representatives of 12 nations agreed in 1864 to the

first Geneva Convention for the Amelioration of the Condition of

the Wounded in Time of War.22 The Treaty was ratified and adhered

to by 54 states. It was replaced by the 1906 Geneva Convention and

the 1929 Geneva Convention as between parties to those

instruments.23

 

These initial conventions dealth with: (1) the protection of

hospitals, their staff, medical equipment and supplies; (2)

protection for numbers of the civilian population who had taken

sick and wounded into their homes; (3) the right of reputation.

 

 

The first attempt to regulate treatment of prisoners of war through

an international convention was made at Brussels in 1874. Although

the Brussels Declaration never transfored into a convention, the

provisions for capture, internment and treatment of prisoners of

war did find themselves in later agreements.

 

 

Several Peace Conferences at Hague were held, most notable were the

Hague Peace Conference of 1899 which adopted the 1864 Geneva

Convention to moral warfare and the 1907 Hague Regulations which

required that "every prisoner is bound to declare, if questioned on

this point, his true name and rank."24

 

 

Figure I-1 is a diagram of the most significant developments in the

law of war. Those pacts, conventions, treaties etc. that deserve

further analysis will be discussed in later chapters.

Click here to view image

 

Chapter 1 Footnotes

1 H. Wheaton, LAW OF NATIONS, 14 (1845)

2 C. Phillipson, II International Law and Customs of Ancient

Greece and Rome, 221 (1911)

  1. Id. at 208-209
  2. Plato, The Republic, 171-172 (MacDonald, ed 1945)

5 C. Phillipson, supra n. 2 at 280

6 Baldwin, New Look at the Law of War: Limited War and FM 27-10,

4 Mil L., Rev. 1, 14 (1959)

7 J. Bond, The Ruler of Riot, Internal Conflict and the Law of

War, 12 (1974)

8 Id. at 12

9 St. Augustine, The City of God, 169 (J. Healy trans. 1931)

10 Id. at 231

11 J Bond, supra at 13

12 M. Keen, The Laws of War in the Late Middle Ages, 239 1965)

13 Id. at 240

14 Huizinga, The Political and Military Significance of Chivalric

Ideas in the Late Middle Ages, MEN AND IDEAS, 203 (1960)

15 J. Bond, supra at 15

16 Q. Wright, A STUDY OF WAR, 334 (Abridged ed. 1964)

17 J. Bond, supra at 16

18 H. Grotius, Rights of War and Peace, 361-367 (A. Campbell

trans. 1901)

19 PICTET, International Humanitarian Law, 6, International

Revision of the Red Cross, 456, 466 (1966)

20 Note, International Law Documents, 1950-1951, 1 (1952)

21 H. Grotius

22 22 Stat. 940; T.S. 377; 1 Bevans 7; 2 Treaties (Malloy) 1903

23 J. Bond, Supra at 20

24 A. Higgins, The Hague Peace Conferences, 59 (1909)

 

II. HOSTILITIES

The law surrounding the actual conduct of hostilities has for its

object the prevention of an injury to the enemy which is considered

unnecessary in subduing him. This branch of the law of war is not

designed to handicap a belligerent in the protection of its

legitimate interests; it is humanitarian in nature.

 

 

A. Commencement of Hostilities

 

 

There are three possible ways of commencing hostilities or

inaugurating a state of war. These are: (1) By unilateral

declaration of war;1 (2) by a conditional declaration of war which

becomes operative when the conditions are in existence, or

conversely if it is in the nature of an ultimatum when the

conditions of the ultimatum are not met;2 (3) by committing hostile

acts of force.3

 

 

Since nothing in the rules requires that any period of time elapse

between a declaration of war and the commencement of hostilities,

only that such a declaration be made, the element of surprise is

still legally permissible.4 In his autobiography, Japanese foreign

minister Togo discusses in detail the conferences in his own office

to determine how much time was required before Japan could commence

hostilities after the United States received the Japanese

declaration of war. It was finally decided the that Convention

required that a sufficient time elapse between the declaration and

the commencement of hostilities for the United States government to

inform its military commands of the state of war; in this case,

approximately one-half hour. In fact, the actual declaration of

war by Japan was received by the U. S. government in Washington

sixty-six hours after the attack.5 Unfortunately, the Toyko

tribunal permitted its consideration of aggressive war to preclude

a determination of any violation of Hague Convention III.

 

A failure by a party to the Hague Convention to observe its

provisions in beginning hostilities without declaration of war,

does not make the hostilities subsequently conducted any less

subject to the Hague Convention.6

 

The date of the beginning of a war has far reaching effects on

international and municipal law. In international law, the moment

a state of war exists, diplomatic relations are broken,7 commercial

transactions cease to be valid between enermy citizens,8 warships of

each belligerent are entitled to visit and search vessels of any

flag on the high seas,9 ets. In municipal law, the applicability

of issuance contracts may depend on the date of the beginning of

the war.10

 

B. Weapons

 

1. The Declaration of St. Petersburg and the Hague Conventions of

1907 have attempted to control the use of weapons in warfare. The

general rules they have codified or envisioned still serve as the

norm against which the legality of new weapons must be measured.

Their provisions regarding weapon employment are depicted in Table

II-1.

 

 

2. Poisonous Weapons

 

 

Poisoned weapons are prohibited. The poisoned spear, arrow, or

bullet are prohibited beacuse the spear, arrow and bullet are or

have been legitimate weapons in their own right. The poison adds

little to their effectiveness. The suffering produced by the

poison is unnecessary, the weapon itself already placed the victim

hors de combat.

 

 

Toxic chemical agents and nuclear explosives on the other hand are

not prohibited. Here the poison, if it can be called that, is

either an after effect of the use of the weapon or an essential

part of the weapon itself.

 

 

3. Fire

 

 

The Germans in World War I brought fire into the arsenal of modern

weapons with the introduction of flamethrowers. Despit an early

attempt to outlaw these weapons after World War I, they are today

considered to be legitimate against targets requiring their use.11

The same is true of napalm.

4. Nuclear Weapons

 

 

The provisions of international conventional and customary law that

may control the use of nuclear weapons are (a) Article 23(a) of the

Hague Regulations prohibiting poison and poisoned weapons, (b) the

Geneva Protocal of 1925 which prohibits the use not only of

poisonous or other gases but also of "analogus liquids, materials

or devices", (c) Article 23(c) of the Hague Regulations which

prohibits weapons calculated to cause unnecessary suffering, and

(d) the 1868 Declaration of St. Petersburg which lists as contrary

to humanity those weapons which "needlessly aggrevate the

sufferings of disabled men or render their death inevitable."12

 

It has been asserted that even if these four provisions are

applicable to nuclear weapons they are inadequate to control them

without new specific prohibition.13

 

 

5. Toxic Chemical Agents

 

 

The United States, unlike a majority of the industrial states of

the world, is not a party of any treaty which forbids it from

resorting to the use of toxic chemical agents in the event of

war.14 The Hague Conference Resolution of 1899, which forbids "the

use of projectiles the sole object of which is the diffusion of

asphyxiating or delerious gases," was passed over the objections of

the United States delegation.15

 

6. Small Arms, Including Shotguns

 

 

The United States is a signatory to Hague Convention IV of 1907,

Respecting the Laws and Customs of War on Land, which provides, in

Article 23(e) of the Annex, that it shall be unlawful "To employ

arms, projectiles or materials calculated to cause unnecessary

suffering."16 Accordingly, the use of the shotgun depends upon the

motive of the shot employed and its effect on a soft target. The

use of an unjacketed lead bullet is now considered a violation of

the laws of war. The use of shotgun projectiles sufficiently

jacketed to prevent expansion or flattening upon penetration of a

human body and shot cartridges with chilled shot regular in shape

would not constitute violations of the laws of war.17

 

C. Bombardments and Sieges

 

 

1. Provisions in Hague Convention IV, 1907 on Bombardments and

Sieges

 

 

In 1907 the delegates at the Second Hague Conference dealt with

bombardment and seiges in three articles. These articles are still

in effect.

 

 

Article 25. The attack or bombardment, by whatever

means, of towns, willages, dwellings or buildings

which are undefended is prohibited.

Article 26. The officer in command of an attacking

force must, before commencing a bombardment, except in

cases of assault, do all in his power to warn the

authorities.

 

 

Article 27. In sieges and bombardments all necessary

measures must be taken to spare, as far as possible,

buildings dedicated to religion, art, science, or

charitable purposes, historic monuments, hospitals and

places where the sick and wounded are collected

provided they are not being used at the time for

military purposes. It is the duty of the besieged to

indicate the presence of such buildings or places by

distinctive and visible signs, which shall be notified

to the enemy beforehand.

2. Bombardments in Modern Warfare

 

"Open Cities" are cities open to enemy occupation. If the enemy

can enter at any time it wishes then there is no need to bombard

it. An example was Paris in World War II. The city was declared

undefended not only in the sense that no forces protected it, but

also in the sense that no resistance would be offered to the

impending German entry.

 

 

Defense of a locality by troops against the assaults of their

opponent render the locality subject to bombardments. Factories

producing munitions and military supplies, ports and railroads

being used for the transportation of military supplies, and other

places devoted to the support of military operations or the

accomodation of troops may be attacked and bombarded even though

they are not defended.18

 

 

Of concern today is not whether the target is defended or

undefended under Article 25, IV Hague Convention but rather (1)

whether a huge city is itself a legitimate target because of the

effect its destruction will have on the enemy's will to resist,19

and (2) conceding the legitimacy of a certain target whether the

weapon used is either so inaccurate or so powerful that it will

destroy a lot more than its legitimate target.20

 

 

Two measures have been adopted in order to mitigate the effect upon

noncombatants of the massive bombardments. The first is prior

notice of the bombardment.21 The second is the creation of small

neutralized areas wherein certain civilians may seek refuge.22

 

3. Sieges

 

 

Article 17 of the 1949 Geneva Convention for the Protection of

Civilian Persons in Time of War provides:

 

 

The Parties of the conflict shall endeavor to conclude

local agreements for the removal from besieged or

encircled areas, of wounded, such inferior and aged

persons, children and maternity cases, and for the

passage of ministers of all religions, medical personnel

and medical equipment on their way to such areas.

 

 

Concerning property in besieged areas, the commander must, so far

as possible, spare buildings devoted to religion, art, science and

charity, hospitals and places where the sick or wounded are

collected, provided they are not used at the same time for

military purposes. To enable the attacking forces to spare such

buildings, signs must be placed to indicate their presence and the

besieger notified beforehand.23

 

 

D. Stratagems

 

 

Ruses of war and the employment of measures necessary for

obtaining information about the enemy and the country are

considered permissible.24 Specifically forbidden are the improper

use of a flag of truce, of the national flag, or of the military

insignia and uniform of the enemy as well as the distinctive badges

of the Geneva Convention.25 These rules have been interpreted to

forbid the feigning of surrender so as to secure an advantage over

the opposing belligerent and to broadcast to the enemy that an

armistice has been reached when no such armistice has been reached.

Additionally, the ruses of shooting behind the cover of a wounded

man and playing dead in order to attack the enemy when he is off

guard have been held by international law authorities to be

unlawful.26

E. Espionage

 

 

Articles 29, 30 and 31 of the Regulations annexed to Hague

Convention IV of 1907 govern espionage in time of war. Article 29

defines a spy as (1) a person who (2) acting clandestinely or on

false pretenses, (3) obtains or endeavors to obtain information (4)

in the zone of operations of a belligerent with the intention of

communicating it to the hostile party. The spy may be either a

civilian or a member of the armed forces.

 

 

Traditionally the punishment for spying has been harsh, involving

in most cases the death sentence. Article 30, HR affords one

safeguard. It provides that "a spy taken in the act shall not be

punished without previous trial." Article 31, HR, provides that "a

spy who, after rejoining the army to which he belongs, is

subsequently captured by the enemy, is treated as a prisoner of

war, and incurs no responsibility for his previous acts of

espionage."

 

Because of the wording of this Article, it has been interpreted to

apply only to military spies. A civilian is still liable to

punishment if recaptured after he has returned to his own lines.27

 

 

F. Reprisal

 

 

Reprisal exists in the law of war in order to give that law a

sanction.28 In order to be considered a lawful reprisal, an act

must have the following characteristics: (1) it must be an

unlawful act,(2) it must be done for the purpose of compelling the

other belligerent to observe the laws of war, (3) it must not be

done before other means have been exhausted, (4) it must be done

only under the orders of a commander and after consultation with

the highest available military authority which time permits, (5) it

must be committed against enemy personnel or property, (6) it must

be proportional to the original wrong, and (7) not all enemy

personnel and property are legitimate objects of reprisal (those

traditionally protected, i.e., POW's, sick, wounded, etc., are

exempt).29

TABLE II-1

The Declaration of St. Petersburg (1868)

Considering that the progress of civilization should have the

effect of alleviating as much as possible the calamities of war;

That the only legitimate object which States should endeavor to

accomplish during war is to weaken the military forces of the

enemy;

That for this purpose it is sufficient to disable the greatest

possible number of men;

That this object would be exceeded by the employment of arms which

would needlessly aggravate the sufferings of disabled men, or

render their death inevitable;

That the employment of such arms would, therefore, be contrary to

the laws of humanity;

The Contracting Parties engage mutually to renounce, in case of war

among themselves, the employment by their military or naval troops

of any projectile of a weight below 400 grammes (nearly fourteen

ounces avoirdupois), which is either explosive or charged with

fulminating or inflammable substances.

Annex to Hague Convention IV, 1907

Article 22--The right of belligerents to adopt means of injuring

the enemy is not unlimited.

Article 23--In addition to the prohibitions provided by special

Conventions, it is especially forbiddin:

a. To employ poison or poisoned weapons;

b. To kill or wound treacheroulsy individuals belonging to

the hostile nation or army.

c. To employ arms, projectiles, or material calculated to

cause unnecessary suffering.

Chapter II Footnotes

1 Article 1, Hague Convention III, 1907

2 Id.

3 Stone, Legal Controls of International Conflict, 310 (1954)

4 Article 1, Hague Convention III supra

5 Judgment, International Military Tribunal for the Far East,

p. 989

6 Wright, "When Does War Exist?", 26 AM J. Int'l L. 362 at 363

7 Lautergracht,m Oppenhiems' International Law, 7th Edition 301

(1952)

8 Id. at 319

9 Colombos, International Law of the Sea, 4th Ed 688 (1961)

10 Cf. West v Palmetto State Life Ins Co., 25 S.E. 1d 475 (sup Ct

N.C. 1943)

11 FM27-10 (1956) para 36

12 See Aprait, Air Power and War Rights, 3d ed (New York: Longmans

1947) pp 275-277 for arguments that nuclear weapons of the

kind used in Japan were covered by the 1868 Declaration and

the 1925 Geneva Protocal

13 Stone Legal Controls of International Conflict 344 (1954),

Kung, "The Chaotic Status of the Laws of War" (1951), 45 Am J.

Int'l L, 37

14 DA PAM 27-161-2 pg 44 (1962)

15 "Instructions to the United States Delegates to the Hague

Conference, April 18, 1899," Foreign Relations, 1899 pp

511, 512

16 2 Malby, Treaties 2285

17 DA PAN 27-161-2 supra at 46

18 FX 27-10 supra at para 40

19 Stone, supra at 631

20 Report of the Commission of Experts for the Legal Protection of

Civilian Populations and Victims of War from the Dangers of

Aerial Warfare and Blind Weapons (Reported in International

Committee of the Red Cross, 1954)

21 FM 27-10 supra at para 43b

22 1949 Geneva Convention for the Protection of Civilian

Population Article 14 (1) and 15 (1)

23 H.R., Article 27

24 H.R., Article 24

25 H.R., Article 23(f)

26 Spaight, supra at 2169-172

27 Lauterpacht, supra at 424, 425

28 DA PAM 27-161-2 supra at 64

29 ID. at 67

III. PRISONER OF WAR

 

A. The 1949 Geneva Prisoner of War Convention

 

1. Who may become POW's

 

 

Article 4 of the 1949 Geneva Convention Relative to the Treatment

of Prisoners of War sets forth the categories of persons who are

entitled as a matter of right to treatment as prisoners of war and

to the protection of the Convention. They may be grouped generally

into two classes, military and civilian.

 

 

The military group includes members of the regular armed forces of

a party to the conflict and members of resistence movements who

meet certain criteria. In order to be afforded POW status, the

resistance movement members are required to have four distinctive

signs required of militia and volunteer corps under Article I of

the 1907 Hague Regulations:

 

 

(1) Be commanded by a person responsible for his

subordinates;

 

 

(2) Have a fixed distinguishable emblem recognizable at a

distance;

 

 

(3) Carry arms openly;

 

(4) Conduct their operations in accordance with the laws and

customs of war.

It is improbable that many members of underground forces will meet

these four requirements. The very "openness" which they suggest

would run counter to the cloak of secretiveness under which many

resistance movements operate.

 

 

2. The Protecting Power

 

 

The Protecting Power is a neutral state selected by a party to the

conflict to look after its interest either in the territory of its

enemy or in its own territory which has been occupied by its enemy.

Such selection is usually subject to the approval both of the

opposing belligerent and the selected Protecting Power. During

World War II toward the end of the war, Switzerland and Sweden

between them were acting as Protecting Power for practically all

the belligerent states. The function of the Proecting Powers are

contained in 36 of the 1949 Geneva Conventions's 143 Articles.

 

 

The International Committee of the Red Cross has traditionally

devoted its energies to the care and protection of prisoners of

war. In order to prevent a usurpation of their role by the

Protecting Power, the drafters or the 1949 POW Convention preserved

to the ICRC all the rights that organization has enjoyed in the

past.1 The result is that functions of the ICRC and Protecting

Power overlap in some instances.

 

3. The Prisoner of War Representative

 

 

The PW Representative is a prisoner who handles the distribution of

relief supplies and acts as the prisoners representative before the

Detaining Power and the Protecting Power. Under the 1949

Convention he is the senior officer in camps where there are all

officers or in mixed camps of officers and enlisted. In camps

composed exclusively of enlisted men the POW representative is

elected in a democratic election every six months.2 Thus, in an all

enlisted camps the POW representative is not necessarily the senior

enlisted man present.

 

 

In addition to these duties listed above, the POW representative

shall further the physical, spiritual and intellectual well-being

of the prisoners of war.3 The specific duties of the POW

representatives are listed in Table III-1.

 

 

4. Penal and Disciplining Sanctions Against Prisoners of War

 

 

The general rule is that a prisoner of war shall be subject to the

laws, regulations and orders in force in the armed force of the

Detaining Power.4

 

 

There are three major exceptions to this rule. Article 83 GPW is

the general leniency clause. it encourages the Detaining Power to

adopt, whenever possible, disciplining rather than judicial

measures against POWs. The rationale behind this provision is that

the POW often acts from honorbable motives of patriotism. Under

such circumstances the criminal intent is lacking. Article 87(2)

repeats, in adjudging the sentence, this plea for leniency.

Article 87(3) and (4) forbid corporal punishment, imprisonment in

premises without daylight, all forms of torture and curelty, and

the deprivation of rank regardless of the authorization of such

sentence under the law or the Detaining Power.

 

 

5. Escape

 

The prevention of escape is one of the major concerns of the

Detaining Power. This has been an area of abuse by many

belligerents in the past. Not only have escapes and attempts to

escape been treated harshly, but the excuse of "attempting to

escape" has beeen used to cloak the murder of POW's.5

 

 

The 1949 Geneva POW Convention sought to control the punishment for

escapes by three measures, (1) the downgrading of the offense, (2)

controlling the uses of firearms, and (3) clarification of the

penalties for any offense committed during the escape.

 

 

First the act of escape or attempt to escape was declared to be a

disciplinary offense only.6 By so categorizing it the punishment

for the act is limited to fines, withdrawal of certain privileges,

extra fatigue duty, or imprisonment, all not to exceed 30 days.7

 

Second, the use of firearms to prevent an escape is considered an

extreme measure, which shall always he preceded by warnings

appropriate to the circumstances.8

 

 

Third, it is not uncommon that certain acts otherwise unlawful will

be done to further the escape, such as the destruction of property,

the theft of vehicles or boats, and the assault on guards. The

Convention provides that offenses committed by prisoners of war

with the sole intention of facilitating their escape such as the

breaking of walls, tunnelling, theft without intention of self-

enrichment such as transportation or clothing as disguise, the

drawing up of false papers, the wearing of civilian clothing, etc.,

shall occasion disciplining punishment only.9 This leniency does

not apply to any acts which entail any violence to life or limb10

A POW is subject to the laws of the Detaining Power.11 He is not

free to commit acts of violence against his captors as he was

before capture.

 

 

A successful escape has certain legal consequences. First, it is

defined as one in which the POW has left the territory under the

control of the Detaining Power or an ally of the Detaining Power,

joined his own or allied forces, or joined his own or allied ships,

which may be in the territorial waters of the Detaining Power.

Secondly, if the escapee is recaptured after a successful escape,

he is not subject to disciplining punishment for the escape or for

acts not entailing violence of life or limb committed during the

escape.12 This freedom from judicial process is based on the

notion that offenses committed in connection with an attempt to

escape are devoid of criminal intent. This exemption does not

apply to acts of violence in the escape.

 

 

B. The Code of Conduct

 

 

The Korean War focused attention upon problems faced by all

prisoners of war and upon the conduct of the very small number of

American prisoners who did not resist Communist interrogation and

indoctrination techniques successfully. As a result, The Code of

Conduct was promulgated by the President as Executive Order 10631,

17 August 1955. At the time of its publication three bodies of law

were and still are governing the conduct of the POW. These are the

Geneva Convention of 1949 on Prisoners of War, the law of the

Detaining Power and the law of the prisoner's own country.13 The

Code of Conduct should be analyzed in the light of all three legal

systems.

 

 

Under the 1949 Geneva Prisoners of War Convention, Article 17(1)

and the Code of Conduct, Article V(1), a prisoner of war is

required to disclose his name, rank, service number, and date of

birth. The requirement under Article V(2), Code of Conduct is that

he will evade answering further questions concerns primarily the

initial questioning. A prisoner may still communicate with the

enemy regarding his individual health or welfare as a prisoner of

war and when appropriate, on routine matters of camp

administration.14 The reason for requiring silence during initial

questioning is threefold. First, experience has shown that many

POW's are frightened and as a consequence tell everything they

know. Second, other POW's who do not intend to disclose military

information are tricked into doing so when they attempt to match

wits with skillful and clever interrogators. Finally, such

seemingly innocent procedures as personal history statements are

employed not so much to gain military information as to make a tool

of the POW for future use.15

 

 

Article IV(3), Code of Conduct places the senior POW "in command".

This is an attempt to build strength among the prisoners and a

sense of authority for prisoner hierarchy. It was noted above that

the POW representative should perform these tasks and he may not

necessarily be the senior POW. Under these circumstances if the

senior POW "takes command" under the Code of Conduct his functions

and responsibilities are not those of the POW representative.

 

 

The entire Code of Conduct is set forth in Table III-2. Article

III(1)CC deals with resistance by all means available. For such

resistance the municipal law of the Detaining Power cannot legally

impose any punishment. However, punishment can be given for

failure to obey lawful orders of the captor or for hostile acts

committed against the captor.

 

 

Should a POW violate the Code of Conduct he may be liable under the

municipal law of his own country. For example, Article 104,

Uniform Code of Military Justice prohibits aiding the enemy. The

UCMJ continues to apply to American servicemen after their capture.

Table III-1

 

Specific duties of the POW representative

 

(1) Relief activities

Art. 73(2) Prisoners' representative may take possession and

distribute collective relief shipments intended for

POWs.

Art. 125(4) He shall sign and forward receipts for shipments from

relief societies.

Annex III, Specific duties of prisoners' representative in regard

Arts. 1-6 the handling and distribution of relief supplies.

(2) Relations with fellow POWs

Art. 48(3) Right to remain in communication with POWs working for

private employers.

Art. 78(2) POWs have a right to complain to the Protecting Power

either directly or through their prisoners'

representative.

Art. 80(2) Duty to supervise any system of mutual assistance

organized by the POWs themselves.

Art. 81(3) Every POW has right to consult freely with his

representative.

Art. 98(5) Right to hold in trust parcels and money withheld from

POWs serving sentences to confinement.

Art. 113(1) Right to present wounded and sick for examination by

the Mixed Medical Commission.

Art. 113(2) Right to be present at the examination conducted by

the Mixed Medical Commission.

(3) Relations With Protecting Power

Art. 78(4) Right to send periodic reports to the Protecting

Power.

Art. 126(1) Right to speak privately with delegates of the

Protecting Power.

 

(4) Relations With Detaining Power

Art. 28(2) Collaboration in the management of the canteen and the

special fund.

Art. 62(3) The working pay of the prisoners' representative shall

be paid out of the fund maintained by canteen profits.

Art. 81(1) Prisoners' representatives shall not be required to

perform any other work. If the accomplishment of

their duties is thereby made more difficult.

Art. 41(2) Copies of regulations, orders, and publications of the

Detaining Power shall be handed to the prisoners'

representative.

Art. 65(1) Items entered in the financial account of a POW shall

be initialed by him or by the prisoners'

representative on his behalf.

Art. 96(4) Decisions as to disciplinary punishment shall be

announced to the prisoners' representative.

Art. 104(3) Notification of judicial proceedings against a POW

shall be communicated to the prisoners'

representative.

Art. 107(1) Sentence pronounced upon a POW shall be communicated

to the prisoners' representative.

Art. 81(4) Detaining Power shall furnish the representative with

facilities for communication with the Protecting

Power, ICRC, and the Mixed Medical Commission.

Annex V Notifications of money sent by POWs to their own

country shall be countersigned by the prisoners'

representative.

Table III-2 Code of Conduct

 

Art. I. "I am an American fighting man. I serve in the forces

which guard my country and our way of life. I am prepared to give

my life in their defense."

Art. II. "I will never surrender of my own free will. If in

command I will never surrender my men while they still have the

means to resist."

Art. III. "If I am captured I will continue to resist by all means

available. I will make every effort to escape and aid others to

escape. I will accept neither parole nor special favors from the

enemy."

Art. IV. "If I become a prisoner of war, I will keep faith with

my fellow prisoners. I will give no information or take part in

any action which might be harmful to my comrades. If I am senior,

I will take command. If not, I will obey the lawful orders of

those appointed over me and will back them up in every way."

Art. V. "When questioned, should I become a prisoner of war, I

am bound to give only name, rank, service number and date of birth.

I will evade answering further questions to the utmost of my

ability. I will make no oral or written statements disloyal to my

country and its allies or harmful to their cause."

Art. VI. "I will never forget that I am an American fighting man,

responsible for my actions, and dedicated to the principles which

made my country free. I will thrust in my God and in the United

States of American."

 

Footnotes Chapter III

1 Article 9, Geneva Convention 1949

2 Article 79(1), GPW

3 Article 80, GPW

4 Id. Article 82(1)

5 DA PAM 27-161-2 International Law, p. 91

6 Article 92(1), GPW

  1. Article 89(1), GPW

8 Article 42, GPW

9 Article 93)2), GPW

10 Id.

11 Article 82(1), GPW

12 Article 91(2), GPW

13 DA PAM 27-161-2, p. 96

14 Report by the Secretary of Defense's Advisory Committee on

Prisoners of War, 29 July 1955, p. 22

15 DA PAM 27-161-2, p. 96

IV WOUNDED, SICK AND SHIPWRECKED

 

 

The first Geneva Convention was an international agreement enacted

for the purpose of improving conditions of sick and wounded

soldiers in the field. The first Convention was originally adopted

in 1864.1 It was replaced in 1906,2 1929,3 and again in 1949. The

1949 Geneva Conventions are four in number, the first dealing with

the wounded and sick in the field,4 the second with wounded, sick

and shipwricked at sea,5 the third with prisoners of war, and the

fourth with civilians.

 

 

A. Persons Protected by the 1949 Geneva Conventions

 

 

The following six distinct categories of personnel who are wounded,

sick or shipwrecked6 shall be respected and protected in all

circumstances:7

 

 

(1) Members of the armed forces of a party to the conflict as well

as members of volunteer corps of militias forming part of that

force.

 

 

(2) Members of other volunteer corps such as organized resistance

movements who operate inside or outside their own territory

provided they fill the following four conditions:

 

 

(a) Commanded by a person responsible for his subordinat's

actions and conduct

(b) Carry arms openly

 

 

(c) Wear a fixed distinctive insignia recognizable at a

distance

 

 

(d) Conduct their operations in accordance with the rules and

customs of war.

 

 

(3) Members of regular armed forces who profess allegiance to a

Government not recognized by the Detaining Power.

 

 

(4) Persons not belonging to but accompanying the armed forces

such as reporters, photographers, and technicians, provided they

have proper authorization from the armed forces they accompany.

 

 

(5) Members of crews of the merchant marine and the crews of civil

aircraft of the Parties to the conflict.

 

 

(6) Inhabitants of non-occupied territory, who, on the approach of

the enemy, spontaneously take up arms to resist the invading

forces, without having had time to form themselves into regular

armed units, provided they carry arms openly and respect the laws

and customs of war.

B. Treatment

 

The wounded, sick and shipwrecked of a belligerent who fall into

enemy hands are prisoners of war, and the provisions of

international law concerning prisoners of war apply to them.8

 

 

At all times and particularly after an engagement, parties to the

conflict must, without delay, take all possible measures to search

for and collect the wounded and sick at sea and in the field and to

protect them against pillage and ill-treatment, to insure their

adequate care, and to search for the dead, and prevent their being

despoiled.9

 

Parties to the conflict must prepare and forward to each other

through the Prisoner of War Information Bureau, certificates of

death or duly authenticated lists of the dead.10 Other Articles

deal with graves, identification of the dead, etc.

 

 

Hospitals, hospital ships, medical personnel and medical supplies

are covered in detail by specific Articles. Basically, they are

protected unless they are used to commit, outside their

humanitarian duties, acts harmful to the enemy.

 

Footnotes Chapter IV

 

1 For the text of the Convention, see Malloy's Treaties, II, p.

1903

  1. Geneva Convention of 1906 for the Amelioration of the Condition

of the Wounded of the Armies in the Field. For the text of

the Convention see Malloy's Treaties, II, p. 2183

3 Geneva Convention of 1929 for the Amelioration of the Condition

of the Wounded and Sick of Armies in the Field. 47 Stat 2074;

Treaty Series 20.847; Malloy, Treaties, IV, p. 5209

4 Geneva Convention of 1949 for the Amelioration of the Conditions

of the Wounded and Sick in Armed Forces in the Field, 6 U.S.

Treaties and other Int'l Agreements, p. 3114, 1955,

hereinafter cited as GWS

5 Geneva Convention of 1949 for the Amelioration of the Conditions

of Wounded, Sick, and Shipwrecked Members of Armed Forces at

Sea, 6 U.S. Treaties and other Int'l Agreements, p. 3217, 1955

hereinafter cited as GWS Sea

6 The term "shipwrecked" means shipwreck for any cause and

includes forced landings at sea by or from aircraft (GWS Sea,

Article 12(1))

7 GWS, Article 13; GWS Sea, Article 13

8 GWS, Article 14; GWS Sea, Article 16

9 GWS, Article 16(1); GWS Sea, Article 19(1)

10 GWS, Article 16(3); GWS Sea, Article 19(3)

 

V. CIVILIAN PERSONS

 

 

Prior to the Geneva Convention of 1949 Relative to the Protection

of Civilian Persons in Time of War, there was little protection in

international law for civilians. Only one convention, the 1907

Hague Regulations addressed these people.1 The reason for this

lack of attention to civilians was largely a function of the nature

of war prior to World War II. The Hague Regulations of 1907 were

drawn up at a time when hostilities were confined to the area close

to the front, and when wide-spread guerrilla warfare was not

common. Total war, which exposed the civilian population of whole

countries to the same danger as the armed forces, required more

detailed provisions to meet these new dangers.2

 

 

The Convention applies to all cases of declared war or of any other

armed conflict which may arise between two or more of the High

Contracting Parties, even if the state of war is not recognized by

one of them.3

 

 

Of the 159 articles in the Convention, only one (Article 3) applies

to civil war, however since 1949 civil wars have been the chief

vehicle of international conflict. The Convention, through this

article, requires certain fundamental standards of behavior in

cases of "armed conflict not of an international character," such

as a civil war. The peculiar situation of civil war is discussed

in detail in Chapter VII.

Article 4 of the Convention specified the principal groups

protected. They are enemy nationals who, at a given moment and in

any manner whatsoever, find themselves, in the case of a conflict

or occupation, in the hands of (1) a Party to the conflict or (2)

an Occupying Power of which they are not nationals.

 

 

The helpless,4 persons in besieged or encircled areas,5 children6

and the family7 unit are discussed in various articles and require

particular protection and respect.

Article 4 protects those people who find themselves in the hands of

a party to a conflict or occupation who are not among those

protected classes in the preceeding paragraph. These people are

protected unless they are (1) nationals of a state not bound by the

convention, or (2) nationals of a co-belligerent state having

normal diplomatic representation in the state in whose hands they

are, or (3) nationals of a neutral state having representation as

in (2) if the neutral nationals are in the territory of the

belligerent. If they are in occupied territory, then they remain

entitled to protection.

 

 

Article 6 provides that for protected persons generally, the

Convention begins to apply from the outset of any conflict or

occupation, and ceases to apply, in the territory of parties to the

conflict, on the general close of military operations. In the case

of occupied territory, the convention applies in full for one year

after the general close of military operation. Article 4(1)

manages to circumvent, in part, a reliance on the fact of

occupation in order to afford protection to civilian persons who:

 

...at a given moment and in any manner whatsoever,

find themselves in case of a conflict or occupation,

in the hands of a Party to the conflict or occupying

Power of which they are not nationals.

 

Footnotes Chapter V

 

1 1907 Hague Regulations, Articles 44, 45, and 46

2 Commentary, IV Geneva Convention Relative to the Protection of

Civilian Persons in Time of War, ed. PICET, (Geneva:

International Committee of the Red Cross, 1958), p. 3

3 Article 2(1) Geneva Convention Relative to the Protection of

Civilian Persons in Time of War, hereinafter cited as GC

4 Article 16, GC

  1. Article 17, GC

6 Article 24, GC

7 Article 25, GC; Article 26, GC

VI OCCUPATION

 

 

A. Definition

 

 

In order to hold both civilian and military populations accountable

for the fulfillment of any rights or duties imposed upon them by

treaty and customary law, the precise point in time when occupation

responsibilities commence and terminate must be known. The precise

moment is often blurred by the speed and mobility of modern armed

forces, the rise of "resistance movements" and the lapse of time

between cessation of fighting and the signing of an agreement

ending the war.1

 

 

Once occupation commences international law attributes certain

power to the occupier that it would not otherwise possess. A

complicated trilateral set of legal relations springs up between

the occupier, the ousted sovereign and the inhabitants of the

occupied area. It is therefore essential to know when occupation

commences.2

 

 

Article 42 of the Hague Regulations of 1907 provides the only

conventional definition of "occupation." It provides:

 

Territory is considered occupied when it is actually placed

under the authority of the hostile army. The occupation

extends only to the territory where such authority has been

established and can be exercised.

 

Article 43 of the Hague Regulations addresses the transfer of

power:

 

 

The authority of the legitimate power having in fact

passed into the hands of the occupant, the latter

shall take all the measures in his power to restore

and revive as far as possible, public order and

safety, while respecting unless absolutely prevented,

the laws in force in the country.

 

 

B. Civilian Persons in Occupied Areas

 

 

The occupying power has certain rights over and obligations toward

the population of the enemy territory which it occupies. The

question that follows is what obligations, if any, do the

inhabitants owe to the Occupying Power.

 

 

The 1949 Geneva Civilian Convention is silent on the duties of

civilians. The duties of civilians are found in the 1907 Hague

Regulations and customary law. Some authorities conclude that

civilians in occupied areas do have a legal duty to respect the

laws of the Occupying Power so long as the Occupying Authority

performs its obligations under Article 43 of the Hague Regulations

to "restore and insure as far as possible public order and safety,

while respecting, unless absolutely prevented, the laws in force in

the country."3 Others believe that there is no legal duty owed to

the Occupying Power.4

The military authorities in occupied areas have the right not only

to perform the police functions within their area, but also to

protect their own security. This security becomes difficult when

the civilians participate in guerrilla warfare.5

 

 

C. Control of Civilians in an Occupied Area

 

 

1. Violence. Protected persons are entitled, in all

circumstances, to respect for their persons, their honor and their

family rights. They shall at all times be humanely treated, and

shall be protected especially against all acts of violence or

threats thereof.6

 

 

2. Coercion. No physical or moral coercion shall be exercised

against protected persons, in particular to obtain information from

them or from their parties.7

 

 

3. Brutality. The Occupying Power is prohibited from causing

physical suffering or extermination of protected persons in his

hands.8

 

 

4. Punishment for acts of others. No protected person may be

punished for an offense he or she has not personally committed.9

Attacks against the civilian population or civilians by way of

reprisals are prohibited.10 The taking of hostages is specifically

prohibited.11

 

 

5. Deportation. Mass deportation, as well as individual

deportation of protected persons from the occupied territory to the

territory of the Occupying Power or to that of any other country

are prohibited, regardless of the motive.12

 

 

D. Permissible Methods of Control

 

 

The occupant may withdraw from individuals the right of change

their residence, restrict freedom of internal movement, forbid

visits to certain districts, prohibit emigration and immigration,

and require that all individuals carry identification documents.13

Notwithstanding this, the Occupying Power shall not detain

protected persons in an area particularly exposed to the dangers of

war unless the security of the population or imperative military

reasons so demand.14

 

 

The control of civilians by judicial administration and process is

covered in Articles 64 through 77 of the Convention. In essence,

these Articles permit the Occupying Power to subject the population

of the occupied territory to penal laws which are essentially (1)

to enable the Occupying Power to fulfill its obligations under the

treaty, (2) to enable the Occupying Power to maintain the orderly

government of the territory, (3) and to insure the security of the

Occupying Power.15 The existing laws of the occupied territory

should, as far as possible, be respected by the Occupying Power.16

In case of breaches of laws and ordinances the Occupying Power may

hand over the accused inhabitant to its properly constituted,

nonpolitical military court. This court must sit in the occupied

country.17 The accused shall be brought to trial as rapidly as

possible. At the trial the accused shall have the following

rights: (1) to present evidence, (2) to call witnesses, (3) to be

assisted by counsel of his own choice, and (4) to be aided by an

interpreter.18

 

 

E. Property in Occupied Areas

 

 

It is especially forbidden to destroy or siege the enemy's

property, unless such destruction or siezure be imperatively

demanded by the necessities of war.19 Pertaining to occupied

territory the Geneva Convention holds that any destruction by the

Occupying Power of real or personal property belonging individually

or collectively to private persons, or to the State, or to other

public authorities, or to social or co-operative organizations, is

prohibited, except where such destruction is ordered absolutely

necessary by military operations.20 Civilian objects shall not be

the objects of reprisals or attacks.21

 

 

Certain property requires special attention. The real property of

the occupied State is considered to belong to that State. The

Occupying Power is simply the administrator of that property and

has a duty to safeguard it.22 Municipal property, on the other

hand, is considered as private property and may be requisitioned or

siezed. However, it is cannot be confiscated. State archives and

public records may be siezed, but the Occupying Power must exercise

every means to prevent their loss or destruction while in his

possession.24 Cultural buildings and places of worship may not be

used to support military efforts, be objects of reprisals or be

destroyed.25 The practice of the United States has been to use

religious buildings, shrines and consecrated places of worship only

for aid stations and medical installations provided that a

situation of emergency requires such use.26

Footnotes Chapter VI

 

1 DA PAM 27-161-2, p. 159

2 Stone, Legal Controls of International Conflict (N.Y.:Rinehart,

1954) p. 694

3 Id. at pp 723-726

4 Baxter, "The Duty of Obedience to the Belligerent Occupant," 27

British Year Book of International Law 235 (1950); Von Glahn,

The Occupation of Enemy Territory (Minneapolis; Univ. of MN

Press, 1957) pp 45-48

5 DA PAM supra at p. 165

6 Article 27, GC

7 Article 31, GC

8 Article 32, GC

9 Article 33(1), GC

10 Protocol I to the Geneva Conventions of 12 August 1949, Article

51(6) signed by the United States on 12 Dec. 1977

11 Article 33(3), GC

12 Article 49(1), GC

13 FM-27-10, para 375

14 Article 49, GC

15 Article 64(2), GC

16 Article 43, Hague Regulations

17 Article 66, GC

18 Article 71, 72 GC

19 Article 23(g), Hague Regulations

20 Article 53, GC

21 Article 52, Protocol I Geneva Convention

22 Article 55, Hague Regulations

23 Article 56, HG

24 DA PAM supra at p. 183

25 Article 53, Protocol I, GC

26 DA PAM supra at p. 184

 

 

VII THE CHANGING METHODS OF WAR SINCE 1945--THE LEGAL IMPLICATIONS

 

 

Virtually all of the law of land warfare, as it applies in civil

war, may be found in those provisions of the 1949 Geneva Convention

pertaining to "conflicts not of an international character". This

phrase would possibly include the plethora of "unconditional" wars

from Algeria to El Salvador that have plagued the international

scene for the past forty years. Evidence of the increasing

incidence of internal war is probably as recent as the latest

newscast. Internal conflict is not limited to the developing

nations.1 The bitter fighting in Northern Ireland and the Free

French movement in Quebec are prime examples. Even Vietnam and the

Middle East, the conflicts that most closely fit the traditional

model of "international war", are routed in internal conflicts and

continue to demonstrate aspects of internal warfare.

 

 

In internal conflicts government forces often abandon as

ineffective conventional methods of warfare and have themselves

adopted those methods usually identified with rebel or insurgent

groups. Guerilla warfare is the pervasive mode of contemporary

conflict. All parties fight in dispersed or mobile groups; conduct

surprise attacks, ambushes, and sabotage; and use terror.2

 

 

This chapter will deal with the applicability in internal conflicts

of the principles and laws discussed in previous chapters. There

are two major implications: Internal War as an International Event

and Humanity in Warfare.

 

A. Internal War as an International Event

 

 

This inquiry focuses on the international repercussions of one

particular kind of activity which can be--and increasingly seems to

be--a mode of far-reaching and rapid change within societies:

namely, political violence, by which is meant the use of force,

legitimately (by incumbents) or otherwise (by insurgents), to

control political behavior and accomplish political objectives.

There is a compelling symmetry to the proposition that the more

intense and enduring an internal war, the greater will be its

effects upon the international system.3 Internal strife might

escalate to an international conflict because of intervention by

other nations. This intervention is most often in the form of

rendering belligerent assistance to one of the parties to the

conflict, but might also be in the form of good faith attempts to

settle the conflict through unilateral or multinational peace

keeping forces or simply negotiations. Additionally, the

dimensions and duration of the civil conflict may affect the

position of outside parties.

 

 

Traditional law has purported to provide certain rules of conduct

to be observed by the community of nations in respect to a civil

war. Since 1949, international law has also sought to promote a

minimum standard of conduct by the parties to the hostilities. The

identification of a major conflict as either a civil or

international war is essential to the correct application of the

relevant legal norms. Two main factors operate that make it

difficult to appraise a conflict as simply "internal". In the

first place, the international community (and parties themselves)

may be divided as to whether the territory concerned is a political

unit or state, or two. In the second place, it may be claimed that

what appears ostensibly as a civil war is in fact violence fomented

from outside. Should this be so, different considerations of both

law and policy will ensue.4

 

 

Labeling a conflict as an internal war, rather than an

international conflict, entails legal consequences for the status

of waring parties, the rights of third parties to participate or

remain neutral, and the modalities of the conflict.

 

 

B. Humanity in Warfare

 

 

The importance of Article 3 of all four of the 1949 Geneva

Conventions merits its quotation in full:

 

 

In the case of armed conflict not of an international

character occurring in the territory of one of the

High Contracting Parties, each Party to the conflict

shall be bound to apply, as a minimum, the following

provisions;

 

(1) Persons taking no active part in the

hostilities, including members of armed forces who

have laid down their arms and those placed hors de

combat by sickness, wounds, detention, or any other

cause, shall in all circumstances be treated humanely,

without any adverse distinction founded on race,

colour, religion or faith, sex birth or wealth, or any

similar criteria.

 

 

To this end, the following acts are and shall remain

prohibited at any time and in any place whatsoever

with respect to the above-mentioned persons;

 

 

(a) violence to life and person, in particular,

murder of all kinds, mutilation, cruel treatment

and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular,

humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of

executions without previous judgment pronounced

by a regularly constituted court affording all

the judicial guarantees which are recognized as

indispensable by civilized peoples.

 

 

(2) The wounded and sick shall be collected and

cared for. An impartial humanitarian body, such as

the International Committee of the Red Cross, may

offer its services to the Parties to the conflice.

The Parties to the conflict should further endeavor to

bring into force, by means of special agreements, all

or part of the other provisions of the present

Convention.

 

 

The application of the proceeding provision shall not

affect the legal status of the Parties to the

conflict.

 

 

Article 3 was adopted as a compromise. The delegates to the 1949

Diplomatic Conference were faced with the problem of defining and

establishing the rights of insurgent combatants without striking at

the roots of national sovereignty and national security. Article 3

was approved by many delegates on the grounds that such provisions

would seriously hamper the ability of a de jure government to

maintain law and order when confronted by a disorder, anarchy and

banditry.

 

 

A close reading of Article 3 indicates that the contracting parties

to the Convention assume extremely limited obligations and are

pledged only to ensure the observance of certain fundamental human

rights.

 

It is significant that the legitimate government's obligations to

apply minimum standards during a civil war in no way confers upon

the insurgent any recognition as a belligerent. The implicit right

of the de jure government to consider the rebels nothing more than

common criminals is one of the most controversial aspects of

Article 3. The classification of the rebel as a belligerent or

common criminal lies in the definition of "armed conflict not of an

international character". Several conditions were discussed as

part of proposed amendments, which although they are in no way

mandatory, constitute convenient criteria,5 they are:

 

 

(1) That the Party in revolt against the de june

Government possesses an organized military force, an

authority responsible for its acts, acting within a

determinate territory and having the means of

respecting and ensuring respect for the Convention.

 

 

(2) That the legal Government is obligated to have

resource to the regular military forces against

insurgents organized as military and in possession of

part of the national territory.

 

 

(3) (a) That the dejune Government has recognized the

insurgents as belligerents; or

(b) That it has claimed for itself the rights of

a belligerent; or

(c) That it has accorded the insurgents

recognition as belligerents for the purposes

only of the present Convention; or

 

(d) That the dispute has been admitted to the

agenda of the Security Council or the General

Assembly of the United Nations being a threat

to international peace, a breach of the

peace, or an act of aggression.

 

 

(4) (a) That the insurgents have an organization

purporting to have the characteristics of a

State.

(b) That the insurgent civil authority exercises

de facto authority over the population within

a determinate portion of the national

territory.

(c) That the armed forces act under the direction

of an organized authority and are prepared to

observe the ordinary laws of war.

(d) That the insurgent civil authority agrees to

be bound by the provision of the Convention.

 

The absence of the above criteria does not mean that Article 3 is

not applicable in cases where armed strife breaks out in a country.

Each situation is determined by the peculiar events that exist at

the outbreak of hostilities.

 

 

The attempt to define "armed conflict not of an international

character" is a continuous problem. The Second Proposed Protocal

of 1977 to the Geneva Convention of 1949 complements and

supplements the 1949 Conventions. Signed by 102 Parties, it deals

with the protection of victims of non-international armed

conflicts. It says in part that:

Rebellions and civil ware are considered at best 'non-

international' and may be covered by Article I of the

Second Protocal. The scope of the Second Protocal is

no more than

(1) ...all armed conflicts which are not covered by

Article I of the First Protocal...and which take

placein the territory of a High Contracting Party

between its armed forces and dissident armed forces or

other organized armed groups which, under responsible

command, exercise such control over a part of its

territory as to enable them to carry out sustained and

concerted military operations and to implement this

Protocal.

(2) This Protocal shall not apply to situations of

internal disturbances and tensions, such as riots,

isolated and sporadic acts of violence and other acts

of a similar nature, as not being armed conflicts.

 

Footnotes Chapter VII

 

1 Q. Wright, A Study of War, 56 (Abridged ed. 1964)

 

2 D. Bindschedler-Robert, The Law of Armed Conflict, 38 (1970)

 

3 James N. Rosenau, "Internal War as an International Event",

International Aspects of Civil Strife, 46 (1964)

 

4 R. Higgins, The Future of the International Legal Order,

Vol III, 85 (1971)

 

5 Final Record of the Diplomatic Conference of Geneva of

1949, Vol. II-B, p. 121

 

 

VIII SOME SPECIFIC CONFLICTS

 

Modern conflicts are often of a mixed civil and international

character, in that a civil war leads to or is accompanied by

assistance and participation by outside states. The existing law

provides no clear rules as to whether the law ordinarly regulating

international conflicts is to govern conflicts of this mixed

character and if so, to what degree. Moreover the applicability of

the law governing international war may be-obscured by uncertainty

about whether the conflict is civil or international.

 

 

This chapter discusses some civil conflicts that have occurred

since 1945. The law of war was applied or not applied, as the case

may be, based upon several unpredictable factors, including: world

attention, international involvement in the instigation of or

settlement of the dispute, the personalities and popularity of the

leaders of the recognized government and the length of the civil

strife.

 

 

Cypress --1974

 

 

In 1974, Cypress was in the midst of a civil war between Greek and

Turkish factions on the island. There was a grave danger that

foreign intervention, which had already assumed substantial

proportions, would bring about a full scale international conflict.

A United Nations combat force was established, which was directed

to comply with the humanitarian principles of the conventions in

their entirety.1 The function of this United Nations force was the

maintenance of peace and the restoration of normal conditions in

Cypress.2 The situation which had begun as a civil strife

escalated into an international war and was considered by the

United Nations to be sufficiently dangerous to threaten the

maintenance of international peace and security and thus fell

within the competence of the General Assembly, the United Nations

Charter and the Security Council.

 

 

This incident is illustrative of the problems of applying the law

war to situations where a civil war becomes an international war.

Greece, in assisting the recognized government in Cypress, was

governed by international law in its dealings with the rebels;

however, the government of Cypress was governed by civil law. The

Turkish government was governed by international law in dealing

with the Greek and Cyperian governments. Turkey'a legal

relationship with the rebels is uncertain although the argument

could be made that Turkey's assistance to the rebels could be dealt

with under Cypress' civil law.

 

 

Of particular note in this conflict was Turkey's treatment of

prisoners of war, the wounded and sick.

 

 

As noted above, the Turks were obligated to perform their

humanitarian duties under Article 3 of the Geneva Convention of

  1. The Turkish Cypriates also were required to adhere to these

standards since they sought to be recognized as the rightful

government. Turkey's adherence to these international standards

appears to have been sporadic at best and non-existent at worst.

 

 

Legal historian and analyst Richard I. Miller made the following

observations:3

 

The prisoner of war in an international conflict

unless he is a ranking officer is treated as a common

criminal. Turkish wounded and sick always receive

preferential treatment and enemy wounded and sick are

ignored. On the other hand, the wounded and sick

would be readily exchanged. The application of GPW

Article 3 in an internal conflict is remote. If the

Turks are pressed for labor, they will use prisoner

labor. Conditions of internment are grim. Food,

clothing and shelter should not meet even minimum

standards unless there is substantial international

pressure for compliance and inspection. The

application of group punishment is probable. The

enemy has no claim to rights. The application of

torture depends upon the whim of the local commander.

Outside of the Turkish legal community, there is not

likely to be any high regard for the commitments to

international law.

These observations of Turkey's performance in the 1974 invasion of

Cypress and its aftermath are especially enlightening in view of

the fact that Turkey was one of the parties to all four Geneva

Conventions of 1949 and signed without reservation.

 

 

Dominican Republic -- 1965

 

 

Armed conflict in the Dominican Republic began on April 24, 1965,

when a group of young officers, calling themselves

Constitutionalists, rebelled against the provisional administration

of President Donald Reid Cabral. It was substantially terminated

on May 25, 1965, by a cease-fire imposed by military intervention

in the name of the Organization of American States. In the seven

weeks following the cease-fire, however, there were 900 cease-fire

violations, resulting in over 200 casualties.

 

 

The central government in the Dominican Republic had undergone the

assination of its dictator of 31 years in 1961, a coup which

deposed the dictator's successor in 1962, a countercoup that

deposed the previous military junta later that year, a democratic

election which elected a president with a wide majority in 1963, a

military coup which removed that President in September 1963, and

finally the presidency was given to Foreign Minister Cabral in

1965. Cabral had called for new elections in September 1965, but

the violence broke out in April.

The police force of the capital city of Santo Domingo was the

principal military target of the Constitutionalists. Public order

rapidly disintegrated and armed mobs terrorized the city with

indiscriminate shooting, pillage and arson. On 28 April 1965 the

Loyalist Command notified the U.S. Embassy that American lives were

in danger and U.S. citizens could not be protected. President

Johnson ordered the landing of 400 U.S. Marines to assist in the

evacuation of 2,400 U.S. citizens and other foreign nationals. The

United States rapidly built up its forces to over 20,000 within the

next few days as a prelude to a multilateral peacekeeping operation

by the regional organization.

 

 

The United States landed armed forces in the Dominican Republic as

a humanitarian intervention in a civil conflict. To Loyalists and

Constitutionalists, foreign intervention did not change the

character of the conflict. The legality of the United States

intervention was defended under the rules of customary

international law that permit any state to protect the lives and

liberties of its citizens abroad in conformity with civilized

standards.

 

 

As a signatory of all four Geneva Conventions of 1949, the

recognized government of the Dominician Republic was obligated to

adhere to the Article 3 provision concerning humanity in warfare.

Both sides claimed widespread deprevations of life, liberty and

personal security.

The Inter-American Commission on Human Rights, an organ of the

Organization of American States reported serious violations of the

law. It reported the arrest and imprisonment of thousands of

persons, the bulk of them political prisoners held without cause,

without charges and without hearings.

 

 

The conditions in all prisons were reported to be substandard. The

Inter-American Human Rights Commission assisted by an investigating

and review board by the Government of National Reconstruction kept

up steady pressure for proper hearings, trials, improved sanitary

and medical facilities, and treatment of the sick and wounded in

detention. The OAS flew in a group of criminologists in July to

investigate charges of murder in the prison, assassinations and

kidnappings.

 

 

The most significant atrocity was called the Hacienda Honar case.

Seventeen prisoners were executed by the Loyalists. Allegations

were made that the Loyalists had an established policy of

prosecuting the elimination of adversaries, executing them

precipatately without trial, and leaving the bodies abandoned so

that the fate of the victims would serve as a lesson and on

exemplory warning to the people. In an unconfirmed charge, the

Loyalists accused the Constitutionalists of killing a dozen

captives in cold blood and or beheading an officer and parading his

head through the rebel area on a pole.

Women and children were not immune to the widespread slaughter.

The official death toll for the three months after the civil war

began was 2,850 Dominicans and 28 United States troops. Most of

the dead Dominicans were civilians. In addition to the loss of

life, there was rampant destruction of property and the country's

economy was crippled.

 

 

Since the location of the hospitals was well known to the local

combatants, they were spared direct attack. The lack of medical

supplies, food, water and electricity in the early days of the war

was significant. The U.S. Marines brought medical supplies, etc.,

and alleviated this situation.4

 

 

Malaysia -- 1957-1960

 

 

In Malaysia, during the Malaysian conflict, the British judge

advocate wanted the Communist terrorists guerrillas and spies to be

treated as criminals. The military personnel and those responsible

for administering policy urged that they be treated as POWs in

accordance with the Geneva Conventions in order to encourage

surrender. In the best English tradition, both points of view

were reconciled by creating two categories: captured enemy

personnel (CEP), who were to be treated as criminals, and

surrendered enemy personnel (SEP) who were to be treated as

prisoners of war. As the name implied, the prisoners who

surrendered prior to capture would be entitled to the more

favorable SEP treatment. In practice, the classification was most

often dependent upon the post-captive attitude of the prisoner.

Those prisoners whose ideological orientation was toward Communism

would be classified CEP. Those who could be prevailed upon to

support the local government would be classified SEP. There was

great disparity in treatment for both groups. Neither

classification complied with the Geneva Prisoner of War

Conventions. SEPs were subjected to propaganda and neither

released or repatriated at the end of hostilities. The SEP were

proselytized and then exploited by the government. The CEP were

detained, tried, and sentenced to long term prison terms that were

not commuted at the end of hostilities. The Malaysians used

prisoners of war for all kinds of labor.

 

 

The Article 3 provisions of the Geneva Conventions of 1949 were not

closely adhered to. In addition to the above violations, the

English high commissioner regularly imposed collective punishment

on "bad villages".5

 

 

The Lebanese Civil War --1958

 

 

In some ways, Lebanese politics resemble those of many American

cities. The population of about two million is roughly comparable

to that of Philadelphia; its religious and ethnic divisions (seven

major religious sects, and a large number of Americans in the city

of Beirut) might be compared to an American urban mixture of

Italians, Irish, Blacks, Jews and Puerto Ricans; the various

communities tend to compete, not always on equal terms, for public

works, patronage, and educational benefits. The factions don't

necessarily limit their external discords and maneuver for power to

political activity. Periods of outright violence have become the

norm in vocalizing dissent.

 

 

Lebanon is a country and not just a city, even if a third of the

population does live in Beirut. Machine politics in the city

operate differently from machine politics in rural areas; the city

is the natural area of demogagues, the country of semi-feudal

landowner. The ambitious politician and the dissatisfied minority

cannot look beyond the confines of the local scene to find an

appropriate outlet -- not, at least, without internationalizing

Lebanon's problems. The parlimentary democracy and rule of law

that the country has enjoyed cannot rest on the support of anyone

but the tiny population of Lebanon itself. Conversely, however,

this situation offers a standing invitation for outsiders to become

involved, usually disruptively.

 

 

The political system rests on two somewhat contradictory

principles: liberal democracy on the one hand, and a predetermined

division of roles among the religious communities on the other.

 

The constitution provides that government posts should be spread on

a reasonable basis among the communities. By rigid custom, the

President of the Republic must be a Moronite Catholic, the Prime

Minister a Sunni Moslem and the Speaker of the Chamber of Deputies

a Shi'ite Moslem. Historically, the Christian groups tend to hold

an advantage as a legacy of their traditional predominence and

their higher educational level; while Shi'ite Moslems, who populate

the most backward rural areas, have been considerably

underrepresented.6

 

 

This division of duties and appointment of power has been the key

to what little stability has existed in Lebanon over the past three

decades. This balance of power is also the breeding ground for the

disagreement among factions as to Lebanon's leanings in

international affairs. The Christians attach the strongest

importance to the continued independence of the country from her

predominantly Moslem neighbor, Syria. Conversely, most Lebanese

Moselms, especially the Sunnic, feel more kinship with their

co-religionists in Syria and other Arab countries than with the

Lebanese Christians.

 

 

Without going into great detail, it is sufficient to say that the

political balance of power became upset for a variety of reasons in

1957 and 1958. Politicians became bitterly divided. These

feelings on both sides (Christians and Moslems) were especially

stimulated by the proclamation by the United States of the

Eisenhower Doctrine early in 1957, and by the sudden merger of

Syria and Egypt in the United Arab Republic in early 1958. The

Eisenhower Doctrine stated in part that:

 

 

The United States regards as vital to the national

interest and world peace the preservation of the

independence and integrity of the nations of the

Middle East. To this end, if the President determines

the necessity thereof, the United States is prepared

to use armed force to assist any such nation or group

of nations requesting assistance against armed

aggression from any country controlled by

international communism.

 

 

Economic and military aid would be granted, in other words to the

Middle Eastern governments that were judged to be responsive to the

determination of the United States to defend them against the

designs of the Soviet Union; and if they were attacked, American

troops would be available for their defense as well.

 

 

In Lebanon President Chamoun and Foreign Minister Malik welcomed

the Eisenhower Doctrine enthusiastically. This brought a storm of

criticism from the opposition to the Chamoun regime. A session of

parliment endorsed the government's action by a vote of 30 to 1,

but only after seven Deputies had resigned their seats in protest.

This was soon followed by the formation of a group calling itself

the United National Front, including political figures of all the

major sects, Christian as well as Moslem, who were united in a

common antipathy to Chamoun. These events signalled the beginning

of the Lebanese crisis, although more than another year was to pass

before the outbreak of violence.7

The civil war began with the murder of an opposition journalist on

9 May 1958. The crime was promptly charged to the government and

at once the opposition leaders called for a national strike.

Within days, barricades had been erected against the authorities in

the cities, the interior areas of the country, which were mostly

Moslem, were being patrolled by armed rebels. Rebels who had

previously demanded that Chamoun simply not seek another term, were

now calling for his immediate resignation. There were repeated

acts of violence in the cities and a series of pitched battles

between rebel irregulars and government gendarmes and armed

civilian supporters in the countryside. The ground work had been

laid for a potentially highly explosive situation.

 

 

The government in Beirut was determined to crush the rebels.

President Chamoun appealed to the American Ambassador for armed

intervention; the decision was made in Washington to accede to the

request.8 Two months after the outbreak of civil war, the United

States intervened. The United States forces provided a "presence"

in the country. At one point there were over 14,000 United States

troops in Lebanon and the U. S. forces far outnumbered the Lebanese

government forces. The U.S. presence provided stability, but it

was the acumen of General Chehab the leader of the Lebanese forces,

that ultimately provided the catalyst that defused the situation.

 

 

The key to overcoming the fighting was the Lebanese army, a small

force of perhaps eight thousand men, who had little combat

experience and whose duties heretofore had been largely ceremonial.

Given the modest scale of manpower and armaments involved in the

rebellion, the army would have had no difficulty in suppressing it

had its commander chosen to do so. The latter, however, was

inspired in his conduct at least as much by his own astute

political judgment as by his desire to exercise his battalions,

General Faud Chehab, a Maronite Lebanese patriot and the descendant

of an ancient family of mountain princes who had once governed the

country, took the view that it could not properly be the role of

the army to protect the government against its domestic opponents.

More than this, Chehab was actually conscious of the fact that the

army itself was composed of Moslem and Christian officers and men,

and that an ultimate test of its loyalty might only cause it to

fall apart into factions, thereby destroying the unity and

independence of the state once and for all. He therefore evaded

Chamoun's repeated "suggestion" that he suppress the insurrection,

limiting himself to patrolling the fringes of some of the rebel

held territory and preventing the rebels from marching on the

government's central offices, the international airport, military

installations and other selected key points. With this judicious

and uniquely Lebanese behavior, General Chehab progressively

emerged as the most eligible compromise candidates to succeed

Chamoun as President.9

 

 

Chehab's tactics enabled him to avoid completely the issue of how

to deal with the rebels. The rebels who were detained were treated

as violators of civil law. POW status and standards for the care

and treatment of the wounded and sick were not established.

Lebanon survived the civil war and reverted to its old ways of

compromise politics, communal tolerance, and chaotic, relaxed,

prosperous and happy living -- that was 25 years age.

Laos -- 1953-1960

 

In April 1953 when Vietminh troops crossed the border into Laos,

driving back the French and Laotian forces who were stationed in

the north-easter provinces of Phong Saly and Sam Neua, they

brought with them fighting units of the Pathet Lao, a national

resistance organization which had been established under Prince

Souphanouvong early in 1950. This was the beginning of a civil war

in Laos that has continued, on and off, ever since. The insurgent

Pathet Lao were well-disciplined and orderly. They proceeded to

put into practice the methods of population control which they had

been taught by the Vietminh. The royal government was on the verge

of a serious collapse in internal security, but obsessed as the

French were with the Vietminh, who had retreated to their base in

Tongking with the advent of the rainy season, they nearly missed

the significant impact of the Pathet Lao in their country.

 

In July 1953 talks began that would ultimately lead to the removal

of all restrictions on Laotian soverneignity. In October 1954 Laos

became a completely independent state.

 

The hostilities in Vietnam, Cambodia and Laos were the principle

items of discussion at the 1954 Geneva Conference. The Final

Declaration of the Conference took note of the individual

arrangements to end hostilities in these countries. It contained

clauses calling on the members of the conference to respect the

sovereignity and territorial integrity of Laos and to oversee the

unification of the country. The greatest obstacle which stood in

the way of the commission during its work was the dispute between

the royal government and Pathet Lao about the interpretation of

the Agreement on the Cessation of Hostilities in Laos and, in

particular, Article 14.

 

This article stipulated that, after regrouping in each of the

provinces of Laos, those fighting units of the Pathet Lao who did

not choose to be demobilized locally should be moved into the

provinces of Phon Saly, and Sam Neua, pending a political

settlement. The Pathet Lao read this to mean that, until the

modalities of their reintegration into the national community had

been agreed on, they were entitled to exclusive control over the

two provinces which they had, in any case, administered--one

wholly, the other to a large extent--since 1953. The royal

government held a different opinion. As far as they were

concerned, Laos was a sovereign, unified state and that it had been

the intention of the Geneva Conference that they, the generally

recognized government, would resume the administration of Sam Neua

and Phong Saly after the cease-fire.10

 

In 1954, after the assination of the Defense Minister and the

appointment of a new Prime Minister who had no desire to compromise

and reconcile with the Pathet Lao, the cease fire was repeatedly

broken. The new Prime Minister, Katay Don Sasonith, directed his

army to take over the two rebellious provinces if necessary by

force, and began making preparations for holding a general

election. The fighting units of the Pathet Lao reacted

predictably, nearly always having the better of the exchanges.

 

On Christmas Day, 1955, elections were held in all provinces but

the two rebellious provinces which were subject to the dispute. A

settlement did not come until 12 November 1957 when a government of

National Union was formed which included two Pathet Lao ministers.

Fourteen months later the situation deteriorated again. The

government sought a military solution against the Pathet Lao and

arrested its key leaders. They were treated as traitors, not

prisoners of war.

 

Throughout these hostilities over seven years the position of the

government was to treat the Pathet Lao as insurgents and common

criminals. Yet, due to the international attention given to the

Laotian situation and the attempts to compromise, settle and defuse

the situation by the Geneva Convention and United Nations, the Laos

govenment adhered to the rules of the 1949 Geneva Convention. The

humanitarian aspects of Article III, GC 1949 were followed whenever

possible.

 

The Congo -- 1960-1964

 

The civil war in the Congo posed one of the most challenging tests

for the United Nations in its peacekeeping role. The situation

which originally gave rise to U.N. action appeared relatively

simple. In the immediate aftermath of independence, granted on 30

June 1960, a meeting took place among soldiers of the Congolese

Force Publique in Leopoldville. There was rioting, looting, and

raping of women. The officers of the force, who were entirely

Belgian, wer incapable of restoring discipline. Belgium flew in

two paratroops who it hoped would restore order and supervise the

evacuation of Belgian and other European nationals. Meanwhile all

Belgian officers were dismissed from the Force Publique by the new

government and replaced by Congolese. Discipline remained poor for

the next two years.

On 10 July 1960 the Congolese leaders appealed to the United

Nations for help in the form of technical military assistance. The

purpose of the U.N. military assistance was to remove the Belgian

troops. Within weeks ther were 15,000 U.N. troops in the Congo.

For the next two years there remained approximately 20,000 U.N.

troops in the Congo. The last U.N. troops were withdrawn in 1964.

 

When first dispatched, the U.N. Force was intended to expel the

Belgian troops, but there was also a charter to help restore law

and order. This charter was necessary to provide stability in a

country that had achieved its independence in the course of less

than a year. Among the civilian and military leaders there were

very few college graduates; there was no government machine and

there were no African officers in the Army. Political divisions

were developing in the young country.

 

Officially the U.N. was impartial in the internal political

conflicts of the country that it was helping, but it did take steps

to assist the President such as closing the airport to prevent the

arrival of dissident forces in Leopoldville and closing the radio

station. These efforts proved t be in vain because a military

coup took over the govenment on 14 September 1960. This coup is

sometimes said to have been inspired by the CIA.11 Whether or not

this was true, the new regime certainly had the support of the

United States govenment.12 By 21 February 1961, the U.N. force

had been given the additional mission of "use of force, if

necessary, in the last resort to prevent the occurrence of civil

war."13

 

The President had been arrested and detained at the time of the

coup. Shortly thereafter he was turned over to the forces of his

most bitter enemy in whose hands he was executed. This brought

about bitter fighting.

 

Thoughout the next four years, a series of government leaders came

to power, cities developed their own governments and leaders (who

were usually the leaders of dissident factions within the country),

and in June 1964 the final U.N. forces left.

The U.N. force had a responsibility to apply the international

conventions. The Congo had not signed the Geneva Convention of

1949, because it was not an independent country in 1949. Instead,

the U.N. chose to rely on customary international law.14 Because

of their later developed activist role, the United Nations Congo

operation vitiated whatever remote possibility there might have

been for the U.N. to be regarded as a neutral. Many Africans found

themselves unable to distinguish between United Nations forces and

white mercenaries who were retained by the Belgians. There were

even Congolese accusations of looting by U.N. forces.15

 

Under the customary law imposed, dissidents were tried by military

courts and summarily sentenced. Several ministers who were

believed to be disloyal to the Prime Minister were tried and

publicaly executed after an attempted assassination. Torture,

coercion and degradation of prisoners of war was common. It was

not officially encouraged or condoned, but nevertheless it is

customary, less as a method of extracting information than as an

appropriate response to evil.

 

It was most unlikely that POWs would be feel, sheltered, and

clothed at a standard equivalent to the Detaining Power. The two

principal reasons are: (1) the perennial shortage of facilities of

all sorts in Africa, and (2) the personal aninus borne by captors

against prisoners. Medical treatment was most often performed by

members of the family or tribal relations of the combatants, not

government forces. This was largely a function of the local

customs and culture.

 

In practice there was total disregard for the Geneva Conventions,

this was in large part due to the lack of knowledge of the

conventions. If an African treated prisoners well, it would not be

because of compassion or reciprocity from the enemy. it would be

because of the personalities of the prisoners and his prison

commandant.

 

Yemen -- 1962-1970

 

The conflict began with the overthrow on 26 September 1962 of the

Imam Mohamed al Badr of Yemen by a group of officers headed by

Brigadier Abdullah Sallal. The Egyptian army moved in behind the

revolutionary movement to support the newly proclaimed republic.

Saudi Arabia at the same time began to support the tribes of

northern and eastern Yemen who remained loyal to the Iman, or who

were at least responsive to the money and arms sent to them by the

Saudis.17

 

The U.N. involvement was mostly in the 1962-1964 timeframe during

which the U.N. attempted to bring about a settlement and deter

foreign intervention. These attempts were not successful.

At the time of the coup, the Kennedy Administration was 18 months

old and new American administration welcomed and recognized the

new republic which, under the protection of President Nasser, laid

claim to liberal ideas. The previous government had leanings

toward Russia and China.

 

The new Republic stated that they would "know Yemen's international

obligations, including all treaties concluded by previous

governments, and abide by the Charters of the United Nations and

the Arab League."18

 

The conflict was characterized by mass bombings done as reprisals

for air attacks by the opposing forces. These bombings and air

attacks were almost always against military targets. There were

also claims of massacres in the Royalist-held territory by the

Egyptians. These claims were never substantiated by the U.N.

forces. The U.N. forces established check points at the borders to

check the flow of arms and military supplies.

 

The U.N. forces also investigated complaints that the Egyptians

forces in Yemen used poison gas.19

 

El Salvador -- 1980-1984

 

The background of the El Salvador civil war will not be discussed.

Another paper for this symposium will deal exclusively with the

history and military/political situation. This paper will simply

address the legal issues.

 

Simple stated, Article 3 of the Geneva Conventions of 1949 applies

in El Salvador. El Salvador is a signatory to the conventions.

The question is: does the government adhere to the law?

 

The "death squads" are the most visible violations of human rights.

The ambush and execution of rebel sympathizers is a gross violation

of the law. The official government position is that these

executions are being carried out by mysterious agents of the ultra

right and do not have government backing; others disagree.20 The

deaths have not been linked solely to political activists but have

included foreign nationals, and archbishop, nuns, journalists and

labor advisors.

 

The carnage is not linked solely to one side. There are confirmed

incidents of peasants, who worked for military and civilian

officials being murdered and strung like slaughtered deer from

branches.21

 

Since 1979, the death squads have killed thousands of people; after

a two-year lull, they sprang back into action in the summer of

1983, killing, kidnapping and threatening prominent moderators in

an attempt to roll back land reform and thwart any government plans

to negotiate with leftist guerrillas.

Most western observers believe that if the government is not

supporting this activity, then it certainly is not doing enough to

reduce or prevent it. The failure of the government to take action

is not only contrary to their obligations under the Geneva

Conventions and their own civil law, but also is the basis for a

rapidly deteriorating support for strong military assistance from

the United States.

 

Footnotes Chapter VIII

 

1 Richard I. Miller, The Law of War, 18 (1975)

2 Ibid at 26

3 Ibid at 261, 262

4 Ibid at 201-212

5 Ibid at 258-261

6 Malcom Kerr, "The Lebanese Civil War,"

The International Regulation of Civil Wars, 67 (1972)

7 Ibid at 73

8 Ibid at 77

9 Ibid at 75

10 John Main, "The Civil War in Laos,"

The International Regulation of Civil Wars, 96 (1972)

11 Hoskyns, C., The Congo Since Independence, Oxford 1965, p. 201

12 Evan Luard, "The Civil War in the Congo," The International

Regulation of Civil Wars, 112 (1972)

13 Id.

14 Miller, op cit, p. 302

15 Id. at 264

16 Id. at 266

17 Dana Adams Schmidt, The Civil War in Yemen, The International

Regulation of Civil Wars, 125 (1972)

18 Id. at 127

19 Bailey, Sydney D., Prohibitions and Restraints in War, 132

(1972)

20 Dickey, Christopher, "Behind the Death Squads", the New

Republic, 16, 26 Dec 1983

21 Rolling Stone, "War Games: Duel in the Jungle" 57, 24 Nov

1983

SELECTED BIBLIOGRAPHY

 

The sources cited in this bibliography were the primary source

documents for this paper. The bibliography is annotated to enable

the reader to quickly judge the value of a particular publication

as a source of further information.

 

 

LAWS

 

 

o The Geneva Conventions of 1949

This is the principle source of the law of war

in civil war. Article 3 of all four Conventions

is the only international law of civil war.

o The Code of Conduct for United States Servicemen

o Hague Convention III, 1907

o 1977 Proposed Amendments to the 1949 Geneva Conventions

 

 

TREATISES

 

 

o Grotius, Rights of War and Peace (1901)

Old but useful in studying the background of the

law of war.

o Lauterpacht, Oppenhiem's International Law, 7th Ed. (1952)

A general treatises on international law which

covers all aspects of the law of war.

o Malloy's Treaties II

The complete text of all 1949 Geneva Conventions

o Pictet, International Humanitarian Law, 6th International

Review of the Red Cross (1966)

This is the "bible" on humanity in warfare and

the law of civil war. This publication should

be the starting point for any study of the law

of war since the 1949 Geneva Conventions.

o Wheaton, Law of Nations (1845)

A good historical perspective.

 

 

BOOKS

 

 

o Bailey, Sydney D., Prohibitions and Restraints in War, London:

Oxford University Press, 1972

An excellent analysis of the development of

human rights in warfare from the early Church to

1970.

o Best, Geoffrey, Humanity in Warfare, New York: Columbia

University Press, 1980

An extensive analysis of the law's development

with particular attention to human rights. Good

interpretation of the 1949 Conventions.

o Black, Cyril E. and Falk, Richard A., The Future of

International Legal Order, Volume III, Conflict Management,

Princeton: Princeton University Press, 1971

o Bond, James E., Internal Conflict and the Law of War,

Princeton University Press, 1974

Good analysis of current discussions on the

attempts to apply the law of war to civil

conflicts.

o Carnegie Endowment, The Law of Armed Conflicts, New York,

Carnegie Endowment for International Peace, 1971

Very scholarly discussion of the issues of

contemporary warfare.

  • Department of the Army, International Law, Volume II,

Washington: United States Army, 1962

This Department of the Army Pamphlet is an

outstanding source of information. Most of the

information in Chapters II-VII concerning the

nuts and bolts of the law of war and Geneva

Conventions was taken directly from this

publication. It is an invaluable research tool

and handy reference. Although it is over twenty

years old, it is current in its interpretations

of the law.

o Howard, Michael, Restraints on War, Oxford: Oxford

University Press, 1979

Contains several essays on the law of war, with

the thrust being a historical perspective.

o Luard, Evan, The International Regulation of Civil Wars, New

York: New York University Press, 1972

Excellent references for the law as applied in

specific conflicts. This was a principle source

document for Chapter VIII of this paper.

o Miller, Richard I., The Law of War, Lexington: Lexington

Books, D. C. Heath Company, 1965

Excellent reference for the law as applied in

specific conflicts. This was a principle source

document for Chapter VIII of this paper.

o Moore, John N., Law and Civil War in the Modern World,

Baltimore: The Johns Hopkins Press, 1974

A series of essays dealing with intervention in

internal conflicts.

  • Rosenau, James, N. International Aspects of Civil Strife,

Princeton: Princeton University Press, 1964

A series of essays dealing with intervention in

internal conflict.

o Thienel, Philip M., The Legal Status of Participants in

Unconventional Warfare, Washington: The American

University, 1961

Good analysis of the law of war regarding

insurgents. Includes excerpts of the Geneva

Conventions of 1949.

 

 

PERIODICALS

 

 

o New Republic, "Behind the Death Squads" by Christopher Dickey,

62-63, Feb. 24, 1984

o Newsweek, "Warning the Death Squads", 64, Nov. 21, 1983

o Newsweek, "Another Warning to the Death Squads", 83, Dec. 5,

1983

o Rolling Stones, "War Games: Duel in the Jungle", 57, Nov. 24,

1983



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One Billion Americans: The Case for Thinking Bigger - by Matthew Yglesias