D. Schindler – The Laws of Armed Conflicts. A Collection of Conventions, Resolutions and Other Documents (2004)

Автор: D. Schindler
Название книги: The Laws of Armed Conflicts (2004)
Формат: PDF
Жанр: Политология и Социология
Страницы: 1536
Качество: Изначально компьютерное, E-book

The long-awaited fourth edition of this classic collection reproduces the texts of conventions, draft conventions and resolutions on the law of armed conflicts which have been adopted since the codification movement started in the nineteenth century. Since the first edition appeared in 1973, and subsequent revised and completed editions in 1981and 1988 and a French edition in 1996, the number of texts has increased, due to the rapid development of this branch of international law. In order to give the reader access to all conventions and similar texts adopted since the nineteenth century, older conventions that in the course of time were replaced by newer ones (such as the Geneva Conventions adopted before 1949) have also been reproduced. All texts are introduced by a short explanatory note. A list of signatures, ratifications and accessions, as well as the texts of reservations of individual states, are attached to each convention. The book is fully indexed.

The present collection reproduces the texts of conventions, draft conventions
and resolutions on the law of armed conflicts which have been adopted since
the codification movement started in the nineteenth century. Its first edition
appeared in 1973.1 It was followed by two revised and completed editions in
1981 and 19882 and by a French edition in 1996.3 With each edition, the
number of texts has increased, due to the rapid development of this branch of
international law. While the first edition contained 71. the second had 80, the
third 87, the French edition has 107 and the present one 115. In order to give the
reader access to all conventions and similar texts adopted since the nineteenth
century, older conventions that in the course of time were replaced by newer
ones (such as the Geneva Conventions adopted before 1949) have also been
reproduced in all editions.
Developments up to World War I
Until the middle of the nineteenth century, only customary law regulated ques-
tions of warfare. Common traditions and practices of European states, military
manuals of national armies and bilateral agreements concluded in wartime
between belligerents (cartels, capitulations) contributed to the formation of
customary rules. It was only in the second half of the nineteenth century that
states started concluding mulilateral conventions. Several factors contributed
to this development.
First, the introduction of compulsory military service changed the nature of
warfare. Large national armies took the place of small professional forces
which had been subject to rigid discipline. Wars therefore were fought on a dif-
ferent scale from before. In this situation, a growing need was felt for a binding
and widely accessible codification of rules governing the conduct of war. The
Institute of International Law, in the preface to its Oxford Manual of 1880 (No.
3), which served this purpose, called for a clear set of rules to end the “painful
uncertainty” and the “endless accusations” experienced in recent wars. It
emphasized that such rules must be made known among all people.
Second, the number of victims greatly increased due to the enlargement of
armies and the improvement of arms technology. This was the decisive factor
for the foundation of the Red Cross and the adoption of the Geneva Convention of 1864 (No. 38), which, in turn, gave the impetus to the conclusion of further
conventions on the law of war.
Third, during the second half of the nineteenth century, a growing convic-
tion spread over the Western world that civilization was rapidly advancing and
that it was therefore imperative “to restrain the destructive force of war”
(Oxford Manual, No. 3, preface). The Declaration of St. Petersburg of 1868
(No. 9) states “that the progress of civilization should have the effect of allevi-
ating as much as possible the calamities of war”. Similarly, the preamble to the
Hague Conventions of 1899 and 1907 on the laws and customs of war on land
(Nos. 7 and 8) speaks of the “ever increasing requirements of civilization”.
Finally, the codification of the law of war was stimulated by the progress of
the codification of private law on the European Continent in the same period.
The first steps taken in view of the codification of the laws of war were the
Lieber Instructions of 1863 (No. 1) and the Geneva Convention of 1864 (No.
38). The codification movement reached its first and decisive peak at the two
Hague Peace Conferences of 1899 and 1907. Never since that time has it been
possible to adopt conventions on as many different aspects of the laws of war as
at these conferences. The conventions adopted in the following decades were
mainly intended to develop and refine rules embodied in earlier conventions
and to adapt them to changed circumstances.
Among the basic principles to be found in all conventions, mention should
first be made of the distinction between armed forces and civilians and between
military objectives and civilian objects. This distinction is essential for both the
question of who may take part in hostilities and the determination of the persons
and objects against which acts of war may be directed or which are to be pro-
tected. The Declaration of St. Petersburg of 1868 (No. 9) states that “the only
legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy”. Persons who do not take part or who
have ceased to take part in hostilities and civilian objects may not be attacked.
As to the means of warfare, the ruling principle remains “that the right of
belligerents to adopt means of injuring the enemy is not unlimited”4 and that it
is forbidden “to employ arms, projectiles and material of a nature to cause
unnecessary suffering”.5
The period between the two world wars
After World War I, a period of neglect of the laws of war set in, although the
war had given ample proof of the inadequacies of existing conventions. The
prevailing opinion was that a revision of the laws of war would undermine con-
fidence in the League of Nations and the new methods of preventing war. Only
the Geneva Convention on wounded and sick was revised in 1929 (No. 45) and
completed by a convention on prisoners of war (No. 46). Moreover, two rudi-
mentary protocols on the prohibition of the use of poisonous gases (Geneva Protocol of 1925, No. 13) and on submarine warfare (London Protocol of 1936,
No. 87) were adopted. Further attempts to regulate new problems, especially air
warfare and the protection of civilians against modern means of warfare,
remained unsuccessful (see Nos. 27, 28, 47). Thus, when World War II broke
out, the laws of armed conflicts could not cope with the horrors of war which
surpassed those of World War I.
Developments after World War II
World War II was followed by a similar period of neglect. When in 1949 the
International Law Commission of the United Nations selected the topics for
codification, the majority of the Commission declared itself opposed to the
study of this subject. It was considered that if the Commission, at the very
beginning of its work, were to undertake this study, public opinion might inter-
pret its action as showing lack of confidence in the efficiency of the means at
the disposal of the United Nations for maintaining peace.6
In the same year, however, on the initiative of the ICRC, the Geneva
Conventions were revised and an additional convention on the protection of
civilian persons in time of war was adopted (Nos. 49–52). Although the United
Nations kept aloof from this enterprise, its efforts for an international guarantee
of human rights, especially the Universal Declaration of Human Rights,
adopted on 10 December 1948, left their imprint on the 1949 Conventions.
They had the effect that the traditional law of war was gradually transformed
into a human rights oriented law. The Conventions of 1949 speak of the
“rights” of the protected persons instead of only imposing obligations on the
belligerents. Moreover, the terms “law of war” and “law of armed conflicts”
were slowly replaced by the new term “international humanitarian law”.
The Hague Conventions of 1899 and 1907, dealing mainly with the conduct
of hostilities, remained unchanged. This caused a growing discrepancy between
the revised Geneva Conventions and the outdated Hague Conventions.
However, on the initiative of UNESCO, a Hague Convention on the protection
of cultural property in the event of armed conflict was adopted in 1954 (No.
71). In 1956, the ICRC, recognizing that the 1949 Conventions did not afford a
sufficient protection to the civilian population against indiscriminate warfare,
drafted “Rules for the limitation of the dangers incurred by the civilian popula-
tion in time of war” (No. 30) with a view to having them adopted by an interna-
tional conference. They were approved by the International Red Cross
Conference of New Delhi in 1957, but remained virtually without any response
from governments. This discouraged the ICRC from taking further steps until
the United Nations gave a fresh impetus in 1968.
Between the 1960s and the 1980s
It was not until the mid-1960s that a new interest in the law of armed conflicts
became apparent. It was brought about by the armed conflicts in Vietnam, the
Middle East and Nigeria–Biafra and by the struggles of peoples against colo-
nial and alien domination and racist regimes. Beginning in 1968, the UN
General Assembly periodically adopted resolutions demanding that wars of national liberation be regarded as international armed conflicts and freedom
fighters treated as prisoners of war (see No. 54). Also in 1968, the International
Conference on Human Rights in Teheran, convened by the United Nations, and
the United Nations General Assembly adopted resolutions under the title
“Respect for human rights in armed conflicts”, requesting the Secretary-
General to take steps (a) to secure the better application of existing humanitar-
ian conventions, and (b) for the adoption of additional humanitarian
international conventions to ensure the better protection of civilians, prisoners
and combatants in all armed conflicts and the prohibition and limitation of the
use of certain methods and means of warfare (Nos. 32 and 33). A remarkable
aspect of these resolutions was that they linked the development of the law of
armed conflicts with the international protection of human rights. In the fol-
lowing year, the International Red Cross Conference in Istanbul invited the
ICRC to work out proposals for the completion of humanitarian conventions.
The ICRC, in 1971 and 1972, convened two conferences of government experts
and prepared two draft protocols additional to the Geneva Conventions of
1949. A Diplomatic Conference convened by the Swiss Federal Council held
four sessions in Geneva between 1974 and 1977. On 8 June 1977, it adopted the
two Protocols Additional to the Geneva Conventions (Nos. 56 and 57).
The two Protocols filled lacunae that had been strongly felt for years. In the
first place, they contain provisions on the protection of the civilian population
against effects of hostilities, provisions for which efforts had been undertaken
in vain since the early 1920s. Secondly, the basic principles of the Hague
Conventions of 1899 and 1907 on the conduct of hostilities were reaffirmed
and developed, a fact particularly important in view of the considerable age of
these conventions and the many new states that had no part in their elaboration.
Thirdly, Protocol II brings more elaborate rules on non-international conflicts.
The minimum rules embodied in Article 3 common to the Geneva Conventions
of 1949 proved to be insufficient in view of the great number of internal con-
flicts and the magnitude of their humanitarian problems.
The Protocols of 1977 were supplemented by the United Nations
Convention on prohibitions or restrictions on the use of certain conventional
weapons, adopted in Geneva on 10 October 1980 (No. 20). In 1976, the UN
General Assembly had already adopted a Convention on the prohibition of mil-
itary or any hostile use of environmental modification techniques (No. 18).