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Fighting by the rules: Instructing the armed forces in humanitarian law

Published online by Cambridge University Press:  13 January 2010

Françoise J. Hampson
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Extract

It is commonly accepted that education in human rights may be one of the most effective tools in promoting the observance of those rights. Those whose profession entails the exercise of power over others have an obvious need to know the limits of their power and members of the armed forces represent just such a group. Their acts engage the responsibility of their State under human rights treaties, wherever those acts are committed. Some instruction in human rights law, particularly non-derogable rights, is therefore necessary but the body of rules which imposes the greatest prohibitions and restraints on the conduct of armed forces is humanitarian law. That term is used here as including both “The Hague law”, which imposes limits on the means and methods of warfare, and “Geneva law”, which seeks to protect certain victims of the conflict, such as the wounded and sick in the field, the wounded, sick and shipwrecked at sea, prisoners of war and civilians living under belligerent occupation. The latter body of rules was updated in 1977 by the addition of two Protocols which extended the range of protection by incorporating elements of “The Hague law”. The 1949 Geneva Conventions have been ratified by 166 States and Hague Convention IV, with which we shall principally be dealing, was held by the Nuremberg Tribunal to represent customary international law. To all intents and purposes then, every State is bound by the two bodies of rules. In addition, the 1977 Protocols are binding on those States which have ratified them.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 29 , Issue 269 , April 1989 , pp. 111 - 124
Copyright
Copyright © International Committee of the Red Cross 1989

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References

* This article first appeared in the Nordic Journal on Human Rights, Vol. 6, Pt. 1 (1988)Google Scholar. The author is most grateful to the Journal for its permission to reproduce the article in English.

1 The test is one of the effective exercise of jurisdiction; it does not depend on the territory in which the alleged breach of human rights law was committed. Burgos v Uruguay (R 12/52) HRC 36, 176; de Caseriego v Uruguay (R 13/56) HRC 36, 185 under the International Covenant on Civil and Political Rights (ICCPR); Cyprus v Turkey, 8007/77, 13 D & R 85 under the European Convention on Human Rights (ECHR).

2 Human rights treaties provide that there are certain rights from which no derogation is possible; in other words they apply even in wartime. These include the prohibition of torture and cruel, inhuman and degrading treatment or punishment and protection of the right to life (subject to an exception in the case of lawful acts of war under the ECHR); see Article 4 ICCPR and Article 15 ECHR.

3 For texts of the relevant Conventions, see Roberts, & Guelff, , Documents on the Law of War, Clarendon Press, Oxford, 1982.Google Scholar

4 Dissemination, 08 1987, ICRC, p. 11.Google Scholar

5 Article 27 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 1929, was framed in identical terms.

6 Article 47, 1st Geneva Convention; Article 48, Ilnd Geneva Convention; Article 127, IIIrd Geneva Convention; Article 144, IVth Geneva Convention.

7 Article 25.

8 Article 83.

9 Article 82.

10 Draper, G.I.A.D., “The place of laws of war in military instruction” (Lecture), Royal United Service Institutional Journal (London), Vol. III, 08 1966, pp. 189–192 CrossRefGoogle Scholar; Dieter, Fleck, “The employment of legal advisers and teachers of law in the armed forces”, International Review of the Red Cross (ICRC), No 145, 04 1973, p. 173.CrossRefGoogle Scholar

11 Draper, , op. cit., note 10, p. 193.Google Scholar

12 McGowan, J. J., “Training in the Geneva and Hague Conventions: A Dead Issue?”, Revue de Droit Pénal Militaire et de Droit de la Guerre, XIV-1-2, 1975, pp. 51–55.Google Scholar

13 Furet, M.-F., Martinez, J.-C. & Dorandev, H., La guerre et le droit, Ed. Pedone, A., Paris, 1979, p. 212 Google Scholar; Bolongo, L., “Les conseillers juridiques dans les forces armées: Leur rôle et les conditions de leur efficacité”, Revue de Droit Pénal Militaire et de Droit de la Guerre, XXII-3/4, 1983, pp. 343–355 Google Scholar; Verri, P., “Institutions militaires; le problème de l'enseignement du droit des conflits armés et de l'adaptation des règlements à ses prescriptions humanitaires”, in Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet, Swinarski, C. (Ed), Nijhoff/ICRC, 1984, pp. 603–606 Google Scholar; Report of the House Armed Services Investigation Subcommittee Investigation of the My Lai Incident, 91st Cong., 2d Sess. 6 (1970)Google Scholar cited in McGowan, , op. cit., note 12, p. 51.Google Scholar

14 The preamble to Hague Convention IV in the famous “Martens clause” provides that “… the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience” (emphasis added).

15 Draper, , op. cit., note 10, discussion at p. 195.Google Scholar

16 e.g. Reports of the Special Rapporteur of the Commission on Human Rights (A/40/843, A/41/778 & A/42/667).

17 Report of the Independent Counsel in International Human Rights on the Human Rights Situation in Afghanistan, Washington, 11 18, 1987.Google Scholar

18 See, for example, common Article I to the four Geneva Conventions of 1949; McGowan, , op. cit., note 12, at p. 52.Google Scholar

19 Roberts, & Guelff, , op. cit., note 3, p. 466.Google Scholar

20 On the role of a chaplain, provided he has the right personal qualities, see Arthur, M., Above All, Courage, Sphere, London, 1986, pp. 197–8Google Scholar. On the effective reinforcement of inhibitions, see the attitude of soldiers faced with the possibility of having to fire at unarmed women at Greenham Common in Parker, T., Soldier, Soldier, Coronet, London, 1987, p. 239 and pp. 246–252 Google Scholar.

21 Walzer, M., Just and Unjust Wars: A Moral Argument with Historical Illustrations, Pelican, London, 1980, p. 322 Google Scholar (footnote omitted); see also McGowan, , op. cit., note 12, pp. 54–55.Google Scholar

22 See texts referred to in notes 16 and 17.

23 The Seventh Day: Soldiers Talk About the Six Day War, London, 1970, p. 132 Google Scholar, cited in Walzer, , op. cit., note 20, p. 310.Google Scholar

24 Williams, W. L., “The Law of War and “Personnel infrastructure”: A proposed inquiry into maximizing the contributions of nonlawyer officers and of military instruction in support of the law of war”, Revue de Droit Pénal Militaire et de Droit de la Guerre, XV-1–2, 1976, pp. 19–30 Google Scholar; Mulinen, F. de, “Instruction et application du droit de la guerre”, Revue Militaire Suisse, No 7/8, juillet-août 1979, pp. 325–327 Google Scholar.

25 e.g. In a recent exercise throughout the UK the British armed forces protected strategic installations against attacks from Spetznaz “troops” who had entered the country clandestinely. When any of the “infiltrators” were captured, the detaining troops had to determine their status. This depended on whether they thought the Geneva Conventions applicable (i.e. was there an armed conflict) and whether those captured were entitled to combatant status and therefore to prisoner-of-war status on capture.

26 Dye, D. A., Platoon, based on a screenplay by Oliver Stone, Grafton, London, 1987, p. 143 et seq.Google Scholar

27 Article 49, Ist Geneva Convention; Article 50, IInd Geneva Convention; Article 129, IIIrd Geneva Convention; Article 146, IVth Geneva Convention; see also Articles 85–87, Protocol I.

28 Verri, P., op. cit., note 13 at pp. 608–9Google Scholar shows that the questioning of the content of the actual rules causes the armed forces to question the applicability of any rules. This would lead to the abandonment of even those limitations which are consistent with military necessity, such as proportionality.

29 Best, G., Humanity in Warfare, Methuen, London, 1983, p. 391.Google Scholar

30 Schwarzenberger, G., International Law as applied by International Courts and Tribunals, Vol. II—The Law of Armed Conflict, Stevens, London, 1968, pp. 10–13.Google Scholar

31 e.g. Protocol I, Articles 35, 44, 48–58.

32 See also Draper, , op. cit., note 10, p. 194.Google Scholar

33 US Department of the Army Field Manual (FM) 22–100, Military Leadership, 4–2 (1973), cited in Williams, , op. cit., note 23 at p. 27 Google Scholar; see also generally, Karsten, P., Law, Soldiers and Combat, Greenwood Press, London, 1978.Google Scholar

34 Verri, , op. cit., note 13 at p. 609 Google Scholar implies that where the other party to a conflict does not apply the rules of humanitarian law, which arises perhaps most commonly where it is fighting for an ideology, the first party cannot be expected to do so. Draper, , op. cit., note 10, at p. 194 Google Scholar argues convincingly against this position. Experience in such conflicts (e.g. Vietman, Algeria and wars of colonial independence) suggests that if a State cannot win by fighting according to the rules, it will not be able to win at all.

35 McGowan, , op. cit., note 12, p. 55.Google Scholar

36 Draper, , op. cit., note 10, discussion, p. 195.Google Scholar

37 Williams, , op. cit., note 23, p. 29.Google Scholar

38 It must, however, only be undertaken by adequately informed personnel. Verri, , op. cit., note 13, at p. 607 Google Scholar cites an unfortunate example of a soldier asking a question about humanitarian law and being told to sit down and be quiet because the officier was not sufficiently well-informed to answer his question.

39 Williams, , op. cit., note 23, p. 29.Google Scholar

40 It is said that the one member of the British Army Legal Service who was sent to provide advice in the South Atlantic conflict did not reach the islands until Port Stanley had been recaptured by the British because the transport of other personnel and equipment had a higher priority. It is not known whether the lack of a qualified lawyer made a material difference to the implementation and enforcement of the Geneva Conventions.

41 The legal adviser is to advise commanders at the appropriate level on the application of the Conventions and Protocol and on the appropriate instruction to be given to the armed forces. The advisers are to be available both in peace-time and during armed conflicts. It is not clear whether the adviser is to proffer advice or only to give it on request. His role in relation to the investigation of possible breaches of the Conventions and Protocol is not clearly defined. The military commanders would not appear to be bound by the advice given. The relationship between the commander and the legal adviser, almost certainly of lower rank, will need to be developed in peace-time if it is to work well during a conflict. In both Israel and the Federal Republic of Germany, the independence of the legal adviser is assured by making him militarily accountable to the commander but accountable in matters of law to his commanding officer in the legal service. See generally, Shefi, D., “The status of the legal adviser to the armed forces: His functions and powers”, Revue de Droit Final Militaire et de Droit de la Guerre, XXII–3/4, 1983, p. 259 Google Scholar; Moritz, G., “Legal Advisers in Armed Forces—Position and functions”, Recueils de la Société Internationale de Droit pénal militaire et de Droit de la Guerre, Bruxelles, 1982, p. 483 Google Scholar; Draper, G.I.A.D., “Role of Legal Advisers in Armed Forces”, IRRC, No 202, 01–02 1978, p. 6 CrossRefGoogle Scholar; Green, L. C., “The Role of Legal Advisers in the Armed Forces”, 7 Is Ybk HR (1977) p. 154 Google Scholar; Fleck, D., “The employment of legal advisers and teachers of law in the armed forces”, IRRC, No. 145, 04 1973, p. 173.CrossRefGoogle Scholar

42 Verri, , op. cit., note 13, pp. 610–611.Google Scholar

43 Compare the provision of courses in military law in university courses in Israel; Shefi, , op. cit., note 40, p. 264 Google Scholar, with Levie's experience in the USA during and after the Viet Nam war; Levie, H. S., “Teaching Humanitarian Law in Universities and Law Schools”, 31 American University Law Review, (1982), No. 4, p. 1005.Google Scholar

44 See generally, “Under the Presidency of Mr. Alexandre Hay: the ICRC from 1976 to 1987 — Controlled expansion”, IRRC, 11–12 1987, pp. 621–630.CrossRefGoogle Scholar