Hague Law Interpreted

The Conduct of Hostilities under the Law of Armed Conflict

Stuart Casey-Maslen, Steven Haines

• Publisher: Hart Publishing
• Year: 2018
• Print ISBN:
  9781509943982
• Edition: 1
• eBook ISBN:
  9781509921232
• Topic: Law
• Subtopic: International Law
• Index: Law

Given the centrality of Hague Law to the lawful prosecution of warfare, the relative paucity of dedicated works is surprising. The general formulation of Hague Law rules is largely uncontroversial, but this clarity stands in stark contrast to their interpretation and practical application. How precisely, for instance, the fundamental rules of distinction and proportionality in attack are to dictate and constrain the planning and practice of warfare continues to be highly uncertain. This important new publication fills the gap in the literature. Offering a comprehensive assessment of Hague Law, it explores questions of definitions and accountability and navigates the substantive rules and their application to different types of warfare.

1

An Overview of the Normative Framework of Jus in Bello

I.Introduction

This chapter offers an overview of the normative framework of Hague Law. Section II summarises the fundamental rules on the conduct of hostilities, in particular the rules of distinction and proportionality in attack. Section III outlines the principles and rules that govern the use of weapons in the conduct of hostilities, defining and distinguishing means and methods of warfare and explaining the rules whereby the use of inherently indiscriminate weapons or of weapons that are of a nature to cause superfluous injury is unlawful.

Hague Law – together with Geneva Law, the other main branch of the law of armed conflict – is the mainstay of jus in bello, the collective set of international legal rules that governs acts occurring simultaneously during and in connection with an armed conflict. As noted in the Introduction to this book, Geneva Law governs the treatment of those ‘in the power’ of a party to a conflict, particularly aliens present in the territory of a party to an international armed conflict (IAC),¹ detainees (whether civilian or military, including prisoners of war) and any other persons hors de combat, notably the wounded, sick or shipwrecked.²

Hague Law derives its name from the city where most of its early rules were devised. In fact, though, the first modern treaty governing the conduct of hostilities was the 1868 Saint Petersburg Declaration, adopted, as its name suggests, not in The Hague but in that Baltic port city in northern Russia. The 1868 Declaration outlawed the use of exploding bullets against enemy personnel in warfare between states parties.³ Six years later, states met in Brussels, once more at the initiative of the Russian Czar, Alexander II, and drafted an International Declaration concerning the Laws and Customs of War.⁴ Although the 1874 Declaration never entered into force as binding international law, many of the provisions elaborated by the state representatives at the Brussels conference would formally become the letter of the law in a new treaty agreed at the end of the nineteenth century.

Indeed, as the International Committee of the Red Cross (ICRC) recalls, one of the purposes for which the First Hague Peace Conference of 1899 was convened was ‘the revision of the declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels, and not yet ratified’.⁵ Both the 1899 Hague Peace Conference and its 1907 sequel would adopt an array of international legal instruments governing the conduct of warfare between states, several of which remain in force and binding on the respective parties to this day. These include specific prohibitions on the use of ‘asphyxiating or deleterious gases’⁶ and expanding ‘dum-dum’ bullets,⁷ both adopted in 1899, as well as binding rules (‘regulations’) for warfare on land, adopted in 1899 and revised minimally in 1907.⁸ These regulations would be the central pillars of treaty-based Hague Law until the adoption, in 1977, of Additional Protocol I to the 1949 Geneva Conventions. Moreover, as the International Military Tribunal (IMT) held in 1946 with regard to 1907 Hague Convention IV, the rules laid down in the annexure had already attained customary law status by the outbreak of the Second World War:

The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing International Law at the time of their adoption … but by 1939 these rules … were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war.⁹

Section II of the Regulations annexed to both the 1899 Hague Convention II and 1907 Hague Convention IV is entitled ‘Hostilities’. Chapter I of Section II, which addresses the ‘means of injuring the enemy, sieges, and bombardments’, reads in part as follows:

Article 22.

The right of belligerents to adopt means of injuring the enemy is not unlimited.

Article 23.

Besides the prohibitions provided by special Conventions, it is especially prohibited:

(a)To employ poison or poisoned arms;

(b)To kill or wound treacherously individuals belonging to the hostile nation or army;

(c)To kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion;

(d)To declare that no quarter will be given;

(e)To employ arms, projectiles, or material of a nature to cause superfluous injury;

(f)To make improper use of a flag of truce, the national flag or military ensigns and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;

(g)To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.¹⁰

These provisions were not entirely new – many were to be found in the spirit or the letter of the earlier 1874 Brussels Declaration¹¹ and even the 1863 Lieber Code, a set of instructions drafted during the American Civil War by Francis Lieber, a professor at Columbia College in New York, and approved by President Abraham Lincoln.¹² For instance, the language of the superfluous injury rule in Article 23(e) of the 1899 Hague Convention II Regulations was derived from Article 13(e) of the Brussels Declaration, but found its inspiration in the Lieber Code, which instructed the Union forces:

Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted …¹³

Notable by its absence from either set of Regulations (as had also been the case in the abortive 1874 Brussels Declaration and the subsequent 1880 Oxford Manual, a text drafted by non-governmental experts)¹⁴ is an unequivocal and explicit prohibition on attacking civilians.¹⁵ This is surprising given that already in the preamble to the 1868 St Petersburg Declaration it had been observed that ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’.¹⁶ The 1863 Lieber Code had even observed, while affirming that a ‘citizen or native of a hostile country’ is ‘an enemy’,¹⁷ that

as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.

Nonetheless, as Solis points out, the Code did not consider it unlawful to starve civilians, ‘so that it leads to the speedier subjection of the enemy’.¹⁸

The 1899 and 1907 Hague Regulations did explicitly prohibit ‘attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended’,¹⁹ a prohibition corresponding in part to the immunity from attack of civilian objects, but this omits critical elements of the far broader rule of distinction that Hague Law has recognised for decades. This fundamental omission would not be formally rectified by treaty law until 1977.

In the intervening period, the most significant law of armed conflict treaties to be concluded were the four 1949 Geneva Conventions, which were drafted and adopted in the aftermath of the Second World War.²⁰ As their name indicates, the four Conventions are composed almost entirely of Geneva Law, offering protection in IAC to, respectively: wounded and sick members of the armed forces on land and in the air; wounded, sick and shipwrecked members of armed forces at sea; prisoners of war; and civilians, particularly those in occupied territories or ‘aliens’ on the territory of an enemy. The scarce provisions in the four Conventions that may relate to the conduct of hostilities concern primarily the immunity from attack of medical aircraft, ships, hospitals and other similar facilities. Thus, for example, the following extracts from the Geneva Conventions I, II, and IV stipulate:

Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict.

Hospital ships entitled to the protection of … Geneva Convention [II] … shall not be attacked from the land.

…

Medical aircraft … shall not be attacked, but shall be respected by the belligerents …²¹

Military hospital ships … may in no circumstances be attacked or captured, but shall at all times be respected and protected …

Establishments ashore entitled to the protection of … Geneva Convention [I] shall be protected from bombardment or attack from the sea.²²

Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.²³

In armed conflicts not of an international character, a legal notion introduced to the law of armed conflict for the first time by Article 3 common to the four 1949 Geneva Conventions (‘Common Article 3’), it was specified inter alia that:

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

It is generally (though not universally) agreed that Common Article 3 only concerns persons in the power of a party to a non-international armed conflict (NIAC) and does not regulate the conduct of hostilities.²⁴ Rogers, however, suggests a slight nuance of the accepted position, arguing that while indeed Common Article 3 does not deal directly with the conduct of hostilities, ‘the principle of civilian immunity can be inferred’ from the prohibition of ‘violence to life and person’ of anyone taking no active part in hostilities, a prohibition that, according to the language of Common Article 3, applies ‘at any time and in any place whatsoeve...

Table of contents

• Cover
• Title Page
• The Authors
• Contents
• Table of Cases
• Table of Legislation
• Introduction
• 1. An Overview of the Normative Framework of Jus in Bello
• 2. Defining an Armed Conflict
• 3. Identifying Situations of Hostilities
• 4. The Rule of Distinction in Attack: Objects
• 5. The Rule of Distinction in Attack: Persons
• 6. The Rule of Proportionality in Attack
• 7. The Rule of Precautions in Attack
• 8. The Superfluous Injury Rule
• 9. Warfare on Land
• 10. Aerial Warfare
• 11. Naval Warfare
• 12. Armed Conflict in Space
• 13. Cyberwarfare
• 14. Terrorism and the Law of Armed Conflict
• 15. Promoting Respect for Hague Law
• Index
• Copyright Page