Page images
PDF
EPUB

FOOTNOTES

1 For discussion, see ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Rules Relative to Behavior of Combatants at 16 (1971); Greenspan, Modern Law of Land Warfare 54, 329 (1959); US Army, FM 2710, Law of Land Warfare, para. 73-75 [herein FM 27-10]; 10 Whiteman, Digest of International Law 150 (1968).

2 2 Oppenheim's International Law 422 (Lauterpacht ed. 1952).

3 FM 27-10, para. 77; McDougal and Feliciano, Law and Minimum World Public Order 556 (1959); Stone, Legal Controls of International Conflict 563 (1959). The classifications of combatants and noncombatants are discussed in depth in chapter 3. 4 Article 4, GPW.

[blocks in formation]

the offenses referred to therein are punishable by death under the law of the occupied territory at the time the occupation begins." GC, 6 UST 3516, at 3694; TIAS 3365 (1956), also noted at AFP 110-20, at 1-101.

8 See authorities, supra notes 1 and 3.

9 Article 4(A)(2), GPW. For discussion, see chapter 3.

10 See British Military Manual, The Laws of War on Land, para. 634 (1958); and Whiteman, supra note 1, at 179 and 190.

11 Greenspan, supra note 1, at 62; Mc Dougal and Feliciano, supra note 3, at 557; FM 27-10, para. 74; Baxter, "So Called 'Unprivileged Belligerency': Spies, Guerillas and Saboteurs," 26 Brit. Y. B. Int'l. L. 323 (1951). PWs may use civilian clothes without incurring any penal responsibility as discussed in chapter 7.

12 For a more detailed discussion of the importance of the uniform, including requirements for aircrew members, see chapter 7.

13 Articles 5 and 68 GC; Article 30, HR; ICRC Conference, supra footnote 1, at 17; FM 27-10, paragraph 81.

[blocks in formation]

10-1. Introduction:

Chapter 10

ENFORCEMENT MEASURES

a. Background.' This chapter discusses various means to enforce compliance with the law of armed conflict against other states. As discussed previously in paragraph 1-6, a state's own enlightened self-interest is the primary factor supporting observance of the law. Various military, political and humanitarian considerations reinforce a nation's obligation to follow the law of armed conflict. These include the law's compatibility with traditional military doctrines, such as economy of force, and the necessity of discipline for an effective armed force. Evolved from state practice and treaties reflecting an international consensus, the law incorporates minimum standards of civilization. Yet, under the intense pressures of armed conflict, violations occur. Important secondary enforcement measures are then relied upon to redress past grievances, stop continuing violations or deter future violations. Various enforcement measures are discussed in this chapter. They include publication and protest, demands for compensation, the role of protecting powers and international humanitarian organizations, UN sanctions, criminal responsibility and reprisals.

b. Reciprocity.2 The most important relevant treaties, the 1949 Geneva Conventions for the Protection of War Victims, are not formally conditioned on reciprocity. Parties to each Convention "undertake to respect and to ensure respect for the present Convention in all circumstances" under Article 1 common to the Conventions. The Vienna Convention On the Law of Treaties, Article 60(5), also recognizes that the general law on material breaches, as a basis for suspending the operation of treaties, does not apply to provisions protecting persons in treaties of a humanitarian character. Yet reciprocity is an implied condition in other rules and obligations including generally the law of armed

conflict. It is moreover a critical factor in actual observance of the law of armed conflict. Reciprocity is also explicitly the basis for the doctrine of reprisals. Additionally, a few obligations, such as those contained in the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, are even formally conditioned on reciprocal adherence.

10-2. Publication and Protest.3 In the event of a clearly established violation, an injured party may publicize the facts with a view to influencing other states and world public opinion against an offending adversary. Military struggles frequently are in furtherance of an international political struggle. The support of other governments and peoples may be critically important in achieving national goals. Atrocities, real or alleged, may be prominently featured in the political struggle for international support. The newspaper campaigns by various belligerents in the United States prior to US entry into World War I are an example. If the facts are not well known, protest may be combined with demands for thorough investigation by disinterested international groups. The 1949 Geneva Conventions, for example, recognize that at the request of a party to a conflict an inquiry may be instituted concerning any alleged violations of the Conventions. The Conventions also recognize that once a violation has been established, the parties to the conflict must put an end to it and repress it with the least possible delay. Other secondary enforcement measures, such as demands for compensation or threats of reprisal, are frequently combined with any protest.

International law permits wide discretion in the choice of secondary enforcement techniques dependent upon the extent and

type of violations. However, the actual employment of techniques is regulated in a variety of ways. Various practical considerations are also relevant. For example, secondary enforcement measures should avoid adversely impacting on the attitudes of states not participating in the conflict. They should be designed to avoid unwanted escalation. Enemy morale and the will to resist must not be strengthened by their use.

10-3. Compensation. States have important customary and treaty obligations to observe the law of armed conflict, as a matter of national policy, and to insure its implementation, observance and enforcement by its own armed forces. Under international law, states which violate their obligations are responsible, in appropriate cases, for payment of monetary damages to compensate states for injuries suffered. This principle applies to law of armed conflict violations. State responsibility to compensate victims of violations is an important feature in enforcement measures. Claims for compensation are frequently combined with protests about violations.

The 1907 Hague Convention IV, confirming this principle, states,

A belligerent party which violates the provisions of the said Regulations (HR) shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. Article 3, Hague IV.

Thus, the violater state's obligation to compensate for violations of the Hague Regulations applies regardless of whether the acts constituting violations were authorized by competent authorities of the violator state. Article 12, of the 1949 GPW Convention, provides in a comparable provision, inter alia,

Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

Article 29, GC, similarly provides,

The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred.

However, as a general rule, in the absence of some cause for fault such as inadequate supervision or training, no obligation for compensation arises on the part of a state for other violations of the law of armed conflict committed by individual members outside of their general area of responsibility.

10-4. Protecting Powers-International Humanitarian Organizations. The 1949 Geneva Conventions provide for a disinterested state to act as a protecting power. The Conventions are to be applied with the cooperation and under the scrutiny of protecting powers. Their duty is to safeguard the interest of the parties to the conflict. States are obliged to facilitate, to the greatest extent possible, the task of protecting power representatives. Additionally, states may entrust to an impartial international organization, such as the International Committee of the Red Cross (ICRC), the duties incumbent on protecting powers under the Conventions. On some occasions, states are obliged to accept the services of such humanitarian organizations in the performance of humanitarian functions assigned to protecting powers. Although the protecting powers provisions in the 1949 Geneva Conventions have not proved effective in recent conflicts, continuing efforts are being made to overcome reasons for this failure. More significantly, international humanitarian organizations, such as the ICRC, have played a highly significant role in attempting to ensure observance of the law." However, their efforts are frequently little publicized because of a traditional emphasis on quiet diplomacy.

10-5. United Nations Procedures. Under the United Nations Charter, the Security Council is empowered to take measures not involving the use of armed force and to take armed actions to maintain international

« PreviousContinue »