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History of the law of war on land
Published online by Cambridge University Press: 27 April 2010
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- Research Article
- Information
- International Review of the Red Cross , Volume 82 , Issue 838: Revue Internationale de la Croix-Rouge International Review of the Red Cross , June 2000 , pp. 339 - 350
- Copyright
- Copyright © International Committee of the Red Cross 2000
References
1 In the translation of M. Z. Kahn (1971).
2 Reprinted in Schindler, D. and Toman, J., The Laws of Armed Conflicts, 3rd ed., Martinus Nijhoff Publishers/Henry Dunant Institute, Dordrecht/Geneva, 1988Google Scholar (hereinafter cited as Schindler/Toman), p. 3. See also M. Deltenre, Recueil général des lois et coutumes de la guerre, Les Éditions Ferd. Wallens-Pay, 1943 (texts in French, Flemish, German and English).
3 Lieber Code, Section III, Articles 49 to 80.
4 Schindler/Toman, p. 275.
5 Schindler/Toman, p. 279.
6 Schindler/Toman, p. 285.
7 Schindler/Toman, p. 25.
8 In 1880, the Institute of International Law completed the drafting of the Oxford Manual on the Laws of War on Land (Schindler/Toman, p. 35). This was, of course, an unofficial document, but, like the unratified Brussels Project, its importance in the drafting of subsequent conventions on the law of war cannot be overestimated.
9 Schindler/Toman, p. 70. The clause was repeated in a somewhat extended form in the 1907 Hague Convention IV and in the 1977 Additional Protocol I.
10 Schindler/Toman, p. 202. This Declaration was to be in force for only five years. However, at the 1907 Second International Peace Conference its effective ness was extended to “the close of the Third Peace Conference“. Ibid. As that Conference has never taken place (it was to have convened eight years after the end of the 1907 Second Peace Conference, but World War I broke out before that date was reached), it has been argued that the Declaration is still in force; moreover, since it prohibited the discharge of projectiles and explosives from balloons “or by other new methods of a similar nature”, it is sometimes argued that bombing by aircraft violates this Declaration. Needless to say, no nation has accepted this argument.
11 Schindler/Toman, p. 105. Germany violated this Declaration by using gas projectiles in Poland in 1915 during World War I. When the Germans initiated the use of chlorine at Ypres in 1916, the claim was made that it was not a violation of the Declaration because no projectiles were used, the gas having been contained in barrels which were opened to allow the wind to carry the gas to the Allied lines. Nevertheless, that act initiated general gas warfare, a type of warfare which resulted in over 1,000,000 casualties during World War I.
12 Schindler/Toman, p. 109. This Declaration was the prohibition of dumdum bullets. Infra, notes 26 and 27.
13 Schindler/Toman, p. 63.
14 Supra, note 9. The other two Declarations adopted at the 1899 International Peace Conference had no time limits.
15 Schindler/Toman, p. 301.
16 Schindler/Toman, p. 325. This Convention was in force during World War II, but a number of the belligerents were not parties to it.
17 Schindler/Toman, p. 373. All but four or five small nations with no armies are party to this Convention.
18 In World War I the provisions of the 1907 Hague Regulations with respect to prisoners of war had been found so inadequate in coverage that a number of bilateral and multilateral agreements on the subject had been negotiated by the belligerents during the hostilities.
19 Schindler/Toman, p. 339. The same Diplomatic Conference drafted the 1929 Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field and the 1929 Convention for the Amelioration of the Wounded, Sick and Shipwrecked at Sea (Schindler/Toman, pp. 373 and 401, respectively) which were widely adopted.
20 Schindler/Toman, p. 423. Once again, all but a handful of small nations with no armies are party to this Convention. It should be noted that the 1949 Convention relative to the Protection of Civilian Persons in Time of War (Schindler/Toman, p. 495), the first convention devoted exclusively to the protection of civilians in time of war, was also drafted at that time.
21 North Korea, unwilling to take any action recognizing the ICRC, sent its reply to the Secretary-General of the United Nations, stating that it “is strictly abiding by principles of Geneva Convention in respect to Prisoners of War.” As is well known, this was anything but the case!
22 UNGA Res. 2444 (XXIII) of 19 December 1968, reprinted in Schindler/Toman, p. 263.
23 Schindler/Toman, p. 621. The United States has not ratified this Protocol, both because in its opinion it makes colonial wars international and because it abolishes the requirements for the recognition of a legitimate combatant.
24 Schindler/Toman, p. 689. Prior to the drafting of this Protocol the only international humanitarian law provision with respect to non-international (civil) wars had been Article 3 of the 1949 Geneva Conventions.
25 David used a sling and a stone in his encounter with Goliath and, having rendered him unconscious or dead, proceeded to cut off his head. The use of the sling and the stone as a weapon of war was legitimate — and would probably be legitimate today. However, if Goliath was only unconscious, the act of cutting off his head would today be an inhumane act, and a war crime. If Goliath was dead, then David also committed what today would be a war crime, the maltreatment of the dead body of an enemy. See Jeffries, James H., “Law of war trivia”, Proc. U.S. Naval Inst., Vol. 114, June 1988, p. 57Google Scholar.
26 Schindler/Toman, p. 101.
27 Schindler/Toman, p. 109. — The British are alleged to have used dumdum bullets in South Africa and the Russians are alleged to have used them in their war with the Japanese. Both sides are alleged to have used them during World War I. Even today instances will be found where individual soldiers pierce the ends of their bullets with a knife, thus in effect making them dumdum bullets.
28 While the 1925 Geneva Protocol included a ban on bacteriological weapons, this fact was rarely noted and the Protocol was always referred to as a “gas” Protocol.
29 Reference to nuclear weapons has been omitted because, while there are treaties on this subject, there is no multilateral international convention banning their use, nor is there likely to be one in the foreseeable future. The recent nuclear tests by India and Pakistan are indicative of the comparatively uncontrolled status of this weapon.
30 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, Schindler/Toman, p. 137.
31 Schindler/Toman, p. 179.
32 Elsewhere, the present author has suggested a Convention banning mines other than those requiring several tons of pressure to explode them. This would make them useful as protection against tanks, but would prevent their activation by contact with or the proximity of civilians. Another possible requirement is that every mine that is laid be required to contain a timed self-deactivation mechanism.
33 35 I.L.M. 1206 (1996).
34 36 I.L.M. 1907 (1997).
35 Schindler/Toman, p. 105.
36 Schindler/Toman, p. 877.
37 Schindler/Toman, p. 115. Although this Protocol was very widely accepted, the United States did not ratify it until 1975, fifty years later!
38 32 I.L.M. 800 (1993).
39 Whether other States will accept the ratification by the United States remains to be seen, as it contains a multitude of reservations, including one with regard to the prohibition of the use of herbicides. Moreover, Article XXII of the Convention specifically prohibits all reservations.