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Australia and the Development of International Humanitarian Law

Published online by Cambridge University Press:  24 January 2025

J. G. Starke Q.C.
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Abstract

International humanitarian law is a subject of universal importance and relevance. Since 1974, the problems of restatement and development have engaged the attention of the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts.

In this article, Professor J. G. Starke, Q.C. surveys developments in international humanitarian law over the last quarter century and examines in detail Australia's contribution to those developments. The process by which the idea of “laws of war” has come to be superseded by the concept of international humanitarian law is outlined, while reference is also made to the principal sources of international humanitarian law. Australia's interest in international humanitarian law since World War II is discussed, as is the background to the present continuing Geneva Conference and proceedings at its first three sessions in 1974, 1975 and 1976. The contribution of Australia to the work of the Geneva Conference is thoroughly examined. In particular, the stance of the Australian government on various issues before the Conference is set forth in detail. The article also assesses Australia's contribution to the development of international humanitarian law.

Type
Research Article
Information
Federal Law Review , Volume 8 , Issue 1 , March 1977 , pp. 1 - 14
Copyright
Copyright © 1977 The Australian National University

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Footnotes

*

One of Her Majesty's Counsel, of the N.S.W. and A.C.T. bars; Professor of Humanitarian Law, International Institute of Humanitarian Law, San Remo, Italy; Member, Panel of International Arbitrators, International Court of Justice; Editor, Australian Yearbook of International Law; Editor, Australian Law Journal.

References

1 For a statement of the steps which led to the Geneva Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts in 1974-1976, and incidentally to the acceptance of the expression “international humanitarian law”, see the Introduction (pp. 1-2) to the Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (International Committee of the Red Cross, Geneva, June 1973); Baxter, , “The Law of War” in Bos (ed.), The Present State of International Law and Other Essays (1973) 121-124CrossRefGoogle Scholar; and Baxter, , “Humanitarian Law or Humanitarian Politics? The 1974 Conference on Humanitarian Law” (1975) 16 Harvard International Law Journal 1, 4-9Google Scholar.

2 See Mayda, , “The Korean Repatriation Problem and International Law” (1953) 47 American Journal of International Law 414CrossRefGoogle Scholar.

3 Cf. note by Levie, (1973) 67 American Journal of International Law 512.

4 See I.C.J. Reports, 1973, 347.

5 Draper, , “Human Rights and the Law of War” (1972) 12 Virginia Journal of International Law 326, 337 (italics added)Google Scholar.

6 Draper, op. cit., 339. The primary humanitarian object of the “laws of war” had been frequently stressed in the writings of the late Sir Hersch Lauterpacht; see, e.g., Lauterpacht, E. (ed.), International Law; Collected Papers of Hersch Lauterpacht (1975) Vol. 2, 39.Google Scholar For a plea that the Universal Declaration of Human Rights of 1948 should be applicable in time of war, see Dunbar, , “The Legal Regulation of Modern Warfare” (1954) 40 Transactions of the Grotius Society 83Google Scholar.

7 See (1975) 49 A.L.J. 5.

8 Now Sir Nigel Bowen, Chief Judge of the Federal Court of Australia, and formerly Chief Judge in the Equity Division of the Supreme Court of New South Wales.

9 News Release No. M/78, Department of Foreign Affairs, dated 22 December 1971.

10 News Release No. M/30, Department of Foreign Affairs, dated 4 April 1972.

11 Baxter, , “Humanitarian Law or Humanitarian Politics? The 1974 Conference on Humanitarian Law” (1975) 16 Harvard International Law Journal 1, 11Google Scholar. See also (1975) 49 A.L.J. 299.

12 Deputy Secretary of the Attorney-General's Department of the Common- wealth of Australia. The notes on Australia's contribution to the debates of the Geneva Conference are based on roneoed minutes of the proceedings of the first three sessions of the Conference (in 1974, 1975 and 1976), recording statements by Australian delegates, and kindly made available to the writer by the Department of Foreign Affairs. For accounts of the first session, see Baxter, op. cit., and of the second and third sessions of the Conference in 1975 and 1976, see (1975) 49 A.L.J. 298 and (1976) 50 A.L.J. 370 respectively