Hostname: page-component-78c5997874-s2hrs Total loading time: 0 Render date: 2024-11-15T02:26:04.099Z Has data issue: false hasContentIssue false
  • English
  • Français

International Armed Forces and the Rules of War

Published online by Cambridge University Press:  20 April 2017

Howard J. Taubenfeld
Howard J. Taubenfeld*
Affiliation:
Of the New York Bar
Get access Rights & Permissions [Opens in a new window]

Extract

There is general international acceptance at the present time of many limitations placed on the conduct of the forces of states engaged in armed conflict. It is generally agreed, for example, that prisoners of war must be treated humanely; that wounded, sick and shipwrecked members of armed forces must receive special attention; and that the position of noncombatants and persons in occupied territory must be safeguarded. Limitations on the use of gases and submarines, among others, have been widely accepted. The rules are recognized as binding even in the event of an illegal war and are accepted, at least to some extent, even by nations and groups not parties to the treaties and conventions which have sought to set forth general limitations.

Type
Research Article
Information
American Journal of International Law , Volume 45 , Issue 4 , October 1951 , pp. 671 - 679
Copyright
Copyright © American Society of International Law 1951

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See Geneva Conventions of Aug. 12, 1949, U. S. Department of State Publication No. 3938 (1950). Conventions designed to replace all other conventions concerned with these matters were signed by some 59 nations, including all major Powers.

2 Nussbaum, A Concise History of the Law of Nations (1947), pp. 242-244, 265-266.

3 Reports and Resolutions on the Subject of Article 16 of the Covenant, Report by the Secretary-General, League of Nations Doc. A. 14. 1927. V., p. 84.

4 For example, the Chinese Communist Army handbook has provided since 1928: Rule 8, “Do not maltreat captives.” Lieberman, New York Times Magazine Section, Dec.10, 1950, p. 52. See also infra, notes 28 through 31.

5 See Grob, The Relativity of War and Peace (1949), p. 332.

6 Reports and Resolutions, op.cit. (supra, note 3), at p. 17.

7 Ibid., at p. 87.

8 Oppenheim, International Law (6th ed., Lauterpacht, 1950), Vol. 2, p. 508; Reports and Resolutions, op. cit. (supra, note 3), at pp. 67, 69.

9 Reports and Resolutions, op. cit. (supra, note 3), at pp. 24-26

10 Art. 2(5). Senator Connally's report to the United States Senate concerning participationby the United States in the United Nations contains this statement:

“Preventive or enforcement action by these forces (set up under Article 43) upon the orders of the Security Council would not be an act of war but would be international action for the preservation of the peace and for the purpose of preventing war.” (U. S.Senate, 79th Cong., 1st Sess., Rept. No. 717.)

11 “1 . All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

“ 2.Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.”

12 See footnote 22 infra. President Truman has stated that the United States was not at war but was only engaged in a “police action” for the United Nations. New York Times, June 30, 1950, p. 1, col. 5.

13 “Uniting for Peace,” U. N. General Assembly, Doe. A/1481 (Nov. 4, 1950).

14 Professor Jessup states:

“It is a mistake to assume that the acceptance of the concept of international police forces and their use against an ‘outlaw’, with its consequent abolition of the concept of ‘war’ in a legal sense, eliminates the necessity for the legal regulation of the rights and duties of those who are active participants in the struggle and of those who for geographical or other reasons are not called on to take an active part.” A Modern Law of Nations (1948), p. 188.

15 Grob, op. cit. (supra, note 5), pp. 231, 288, 303.

16 E.g.: Hague Convention with Respect to the Laws and Customs of War on Land,Scott, Texts of the Peace Conferences at The Hague 1899 and 1907, p. 49; this JOURNAL, Supp., Vol. 2 (1908), p. 90.

17 Art. 2 of each of the four conventions signed at Geneva on Aug. 12, 1949 (The Geneva Conventions of Aug. 12, 1949. U. S. Department of State Publication No. 3938,1950).

18 Supra, note 3.

19 U. S. Department of State Publication No. 3938 (1950).

20 In the Advisory Opinion concerning Reparations for Injuries Suffered in the Service of the United Nations, rendered by the International Court of Justice on April 11, 1949 (I. C. J. Reports, 1949, p. 174), it is said, at page 179:

“Practice—in particular the conclusion of conventions to which the Organization is a party—has confirmed this character of the Organization, which occupies a position in certain respects in detachment from its Members...

“...the Court has come to the conclusion that the Organization is an international person....it is a subject of international law and capable of possessing international rights and duties...”

21 Summary Record, International Law Commission, U. N. Doc. A/CN. 4/SR. 6 (April 20, 1949), p. 13.

22 The writer believes that the Korean action is a lawful United Nations operation closely assimilated to that envisaged after the conclusion of Article 43 agreements; that the actions taken by the Security Council in this matter were legal and that, in any case, the forces in Korea fighting under the Unified Command, with the approval of the overwhelming majority of Members, are conducting what they consider to be a bona fide “United Nations action” and are consequently acting as if it were, which is sufficient for the purposes of this study. Nevertheless, since the legality of the original Security Council resolutions has been questioned; since some Members are actively opposing the action taken; and, more important, since the Council resolution (U. 8. Doc. 8/1588, Jul 7, 1950) creating a Unified Command further confused the issue by merely recommending that Members providing forces “make such forces...available to a unified command under the United States”and by requesting the United States“to designate the commander of such forces” and “ to provide the Security Council with reports,” and by leaving it in the discretion of the Unified Command as to whether the United Nations flag was to be used—all this evidencing a wide delegation of its powers by the Security Council to one Member—the writer feels that the value of Korean intervention as a legal precedent has been weakened. (Italics added.)

23 New York Times, Oct. 11, 1950, p. 8, col.5.

24 E.g., payment to Switzerland for bombardment damages to Swiss territory in World War II . Grob, op. cit.(supra, note 5), at pp. 236-237.

25 If the United Nations is bound by the rules of war and it has sufficient standing to make treaties, bring claims, etc., there seems no reason why, at least until it approaches the status of a true government, claims could not be presented against it before its own organs for illegal damages resulting from a legitimate action undertaken by it, whether such damages arise from injuries caused, products requisitioned or other cause. See opinion cited in note 20, supra. It would further appear that if the United Nations is legally liable, the Member whose citizens committed the act complained of should not usually be solely responsible for the entire cost of reparation.

26 Jessup, A Modern Law of Nations (1948), p. 158.

27 Scott, op. cit. (supra, note 16), at pp. 204-205, this JOURNAL, Supp., Vol. 2 (1908), p. 90.

28 Nussbaum, op. cit. (supra, note 2), at p. 247.

29 Ibid.

30 Patch, Prisoners of War (1942), p. 95.

31 U. S. War Dept. Communiqué of Jan. 24, 1942, New York Times, p. 2,col. 2.

32 Security Council, Official Records, 497th Meeting (Sept. 7, 1950), p. 15.

33 It should be noted that the position of the U. S. S. R. is that the United States is fighting an ordinary war of aggression in Korea and that the United States is of course bound by the rules of war agreed to by it, as “These provisions [Art. 25] of the fourth and [Art. 1] ninth Hague Conventions are in full force today, and the armed forces of the United States are obliged to observe them.” Y. Malik, Security Council, Official Eecords, 497th Meeting (Sept. 7, 1950), p. 9. See note 22 supra.

34 New York Times, July 5, 1950, p. 2, col. 7.

35 Ibid., July 14, 1950, p.3, col.4 (no Red Cross observers have been permitted to observe Communist forces in action nor have prisoners been properly reported).

36 Security Council, Document S/1756 (Sept. 4, 1950), pp. 6, 7.

37 Security Council, Document S/1834 (Oct. 5, 1950), p. 5.

38 Security Council, Document S/1860 (Oct. 21, 1950), p. 9.

39 Security Council, Document S/1883 (Nov. 3, 1950), p. 5.