1

1 For background discussion of the GC Convention, see Draper, The Red Cross Conventions (1958); Greenspan, Soldier's Guide to the Law of War (1969); ICRC, Commentary to the Fourth Convention Relative to the Protection of Civilian Persons in Time of War (Pictet ed. 1958); Mc Dougal and Feliciano, Law and Minimum World Public Order 732 (1961); US Army, FM 27-10, Law of Land Warfare (1956); 2 Schwarzenberger, International Law, International Courts, The Law of Armed Conflict (1968); as well as sources supra, chapter 11, note 1. For a discussion from the vantage point of the Vietnam War, see Bond, "Protection of NonCombatants in Guerrilla Wars," 12 Wm. & Mary L. Rev. 787 (1971).

2 Excluding matters of detail, Article 4 defines two broad classes of protected persons: (1) enemy nationals within the national territory of each of the parties to the conflict and (2) the whole population of occupied territories (aside from nationals of occupying powers). ICRC, Commentary, supra note 1, at 46. Part II of the Convention, however, is much broader and protects generally the whole population of the countries in conflict physically in the territory of a party to the conflict including neutrals, alien enemies not in one's control and a State's own nationals (Article 13). Part III, Section 1. protects classes (1) and (2) above (enemy nationals in one's own and in occupied territories). Part III, Section 2, is designed to protect class (1) above, (enemy nationals in one's territory). Part III, Section 3, is designed to protect all persons (aside from occupying nationals) in occupied territory. Article 64, of the Draft ICRC Protocol I of 1973, would also extend protections of Part I and Part III of the GC Convention to stateless persons and certain refugees.

3 Part II, GC, applies to protect civilians in general from the consequences of armed conflict, supra note 2. Chapter 5 on aerial bombardment is accordingly directly relevant. Various provisions of the 1973 ICRC Draft Protocol I to the 1949 Geneva Conventions also directly relate to effective protection of the civilian population. For example, Articles 61 and 62 of the 1973 ICRC Draft Protocol expand significantly the obligations of parties to supply humanitarian relief.

4 GC, Part III, Section I. This Section, in view of its broad applicability to the protected persons under Article 4, contains general principles of Geneva Law. Article 27 and Articles 31 through 34 were at one time proposed for inclusion in a preamble but ultimately were included in the text.

ICRC, Commentary, supra note 1, at 200. Article 28 confirms the general principle discussed in chapter 5 prohibiting use of civilians to immunize areas from military operations. The prohibition of reprisals in Article 33 is discussed in chapter 10. It should be noted that Articles 64 through 69 of the 1973 ICRC Draft Protocol contain several protective guarantees supplementary to this Section.

5 GC, Part III, Section II. See also Kelsen, Principles of International Law 196 (2nd rev ed Tucker 1966); McDougal and Feliciano, "International Coercion and World Public Order: The General Principles of the Law of War," 67 Yale L. Rev. 840 (1958). International law has always provided protective guarantees to aliens abroad under the general principles of State responsibility. Bishop, International Law, Cases and Materials (3rd ed 1971); and O'Connell, International Law 941 (2nd ed 1970). The principles of State responsibility for protection of aliens have been derived over time from adjudications and international claims and are also reinforced in bilateral contexts by Friendship, Commerce and Navigation (FCN) treaties.

6 GC, Part III, Section III. The obligations during occupation are discussed extensively in FM 27-10, supra note 1, and other sources, supra note 2.

7 See, for example, chapter 3 on combatants, chapter 9 as regards spies and saboteurs.

8 For authoritative discussion, see US Army FM 27-10, supra note 1, and ICRC Commentary, supra note 1, at 614. Other discussion is found in standard sources such as Greenspan, Modern Law of Land Warfare (1959); Mc Dougal and Feliciano, Law and Minimum World Public Order (1961); and Schwarzenberger, supra note 1. On the 1907 Hague Regulations as customary law, see authorities cited in chapters 1 and 5.

9 The Justice Trial", United States v. Alstoetter, was the inspiration for the movie "Judgment at Nuremberg." This trial, concerning a war crimes trial of Nazi lawyers, judges and ministry of justice officials for offenses relating to the operation of criminal law in occupied territories during World War II, provides the background for the necessity of Articles 64 through 68. These GC provisions would be further strengthened by Article 65, ICRC Draft Protocol I to the 1949 Geneva Conventions which provides other guarantees of a fair trial.

10 GC, Part III, Section IV. Internees include not only protected persons in areas of occupation, but also enemy aliens and other classes of persons referenced in Article 4 in the territory of parties to a conflict who are detained or interned.

15-1. Introduction. This chapter examines state obligations to observe and enforce the law. It also surveys individual criminal responsibility for acts violating the law of armed conflict, particularly violations of the 1949 Geneva Conventions. The nature of command responsibility and US enforcement techniques are discussed. Normally states impose criminal responsibility against their own personnel pursuant to national means of enforcement for breaches of military discipline. International criminal responsibility was imposed in the post-World War II war crimes trials. In addition national enforcement is common against adversary personnel not qualified as lawful combatants.

15-2. State Responsibility:

1

a. Pressures for observance. The armed forces of a state act on behalf of its government and its citizens; cruelties and excesses during armed conflict may weigh heavily on the conscience of governmental leaders and citizens. Moreover, every nation is sensitive, to some degree, to the reaction of others to its policies; the good will and support of other governments and peoples are important in the overall conduct of foreign policy and achievement of national goals. Reciprocity is a critical factor. If a state fails in the first instance to insure respect for basic humanitarian rights-its conduct provokes violations by an adversary. Moreover, international standing to complain about violations by an adversary is seriously compromised. Civilian loyalties may be at stake and compromised by excesses and cruelty. History demonstrates also that the successful negotiation or termination of hostilities may be prolonged or complicated by antagonisms and alienation heightened by atrocity violations. The political context, in which all armed conflict occurs, prominently features propaganda asserting adversary violations of law and basic

humanitarian norms. Unfortunately, states, particularly during periods of active armed conflict, often fail to perceive accurately their own national self-interests. Violations then occur as deliberate state policy or through failure to take adequate preventive measures. State responsibility exists in both cases. 2

b. State Obligations. Many failures to observe the law of armed conflict do not arise from formal state policy. In fact, states customarily take elaborate steps to demonstrate the legitimacy of their acts under international law or, at minimum, to deny or conceal violations. 3 States, however, have important customary and treaty obligations to follow the law not only as national policy but to ensure its implementation, observance and enforcement by its own combatant personnel. For example, Article 1, Hague IV, requires parties to issue instructions in conformity with the Hague Regulations. Article 3 concerns a state's obligation to pay compensation for acts committed by its Armed Forces which violate the Hague Regulations. The 1949 Geneva Conventions contain a variety of such obligations. States are required to enact domestic legislation necessary to provide effective penal sanctions for persons who commit or order any grave breach of the 1949 Geneva Conventions. 5 Grave breaches are defined:

GWS and GWS SEA

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. (Art. 50.