The Modern Law of Land Warfare [Reprint 2020 ed.] 9780520345898

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THE MODERN LAW OF LAND WARFARE

MORRIS

GREENSPAN

THE MODERN LAW OF LAND WARFARE

959 UNIVERSITY 1

BERKELEY

AND

OF C A L I F O R N I A LOS

ANGELES

PRESS

UNIVERSITY OF CALIFORNIA PRESS BERKELEY AND LOS ANGELES, CALIFORNIA CAMBRIDGE UNIVERSITY PRESS, ENGLAND ©

1 9 5 9 BY THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

PUBLISHED WITH THE ASSISTANCE OF A GRANT FROM THE FORD FOUNDATION LIBRARY OF CONGRESS CATALOG CARD NUMBER:

59-5145

PRINTED IN THE UNITED STATES OF AMERICA DESIGNED BY J O H N B. GOETZ

To Sophie, Ruth, and Jonathan

PREFACE

T h e purpose of this work is to present an accurate, comprehensive, and systematic statement of the international law of war on land as it exists today. T h e events of World War II and the wars, including the Korean war, which have followed; radical innovations in methods and instruments of warfare; a massive array of case law, most strikingly represented by the war-crimes trials of World War II; as well as great new conventions such as the four Geneva Conventions of 1949, have all rendered imperative the restatement of that law. It is essential that this considerable material be related in ordered form to the body of law previously existing, to form with it an integrated whole. T h e law of war is still indispensable, because war still has its function in our society. With the promulgation of the United Nations Charter it was hoped and believed that the law of war belonged to an unregretted past, something that had no place in an ordered, peaceful, international society. Unfortunately, events have demonstrated that the function of war has not yet been replaced by adequately efficient legal procedures. T h e function of war is to settle differences between nations which have not been settled by other means. This work sets out a number of circumstances where resort to war is legitimate under present international law. In addition, if a nation resorts to war contrary to international law, the rules of warfare apply equally to this illegal war. Even should the function of enforcing world order devolve entirely on the United Nations, the use of such force must necessarily be regulated by a body of law. As the creature of international law, the United Nations must uphold in its enforcement actions the existing international laws for the conduct of war.

viii

Preface

T h e last decades have seen the creation of weapons unprecedentedly powerful. T h e fact that weapons are in existence which could effectively wipe out life on earth does not in itself do away with laws of warfare which mankind has painfully evolved through the centuries. On the contrary, the very existence of such weapons demands the tightening of such laws and the institution of measures to make sure that they are not evaded. Until international law evolves new criteria, the legality of newly discovered weapons can only be judged according to established principles of law. It is for the world community to make clear beyond any doubt the legal status of mass destruction and "blind" weapons, particularly nuclear weapons. This work is offered as a practical text. It has been closely documented and is supported by authoritative references. My aim has been to state the law as clearly and as accurately as possible, avoiding partisan expression and viewpoint on my part. Where the law is doubtful, it is given so, and if my opinion is expressed there, it is set forth as an opinion, not as the law. No attempt has been made to reform any part of the law; that is the function of the world community. But an accurate statement of the law is a condition precedent to any attempt at reformation. While the book does not treat air and sea warfare separately, the laws of air and sea warfare are incorporated so far as they affect aspects of war on land. In fact, most of the law of air warfare is included, as well as new developments affecting all phases of warfare. I wish to thank those who in any way contributed to the progress of this work. First and foremost, my thanks go to my dear wife, who alone made this work possible. My particular thanks also go to the following: to Miss Lucie E. N. Dobbie and Mr. Maxwell E. Knight of the University of California Press at Berkeley for their sustained interest in this work and to Mr. Knight for his valued editorial assistance in processing the manuscript for the press; to Mr. Claude Pilloud of the International Committee of the Red Cross, Geneva, for an interpretation of Article 68, second paragraph, of Geneva Convention IV, 1949; to the Library of Congress for the loan of several books and to Dr. Sergius Yakobson, chief of its Slavic Division, for a list of source materials on the Soviet Russian interpretation of the laws and usages of war; to the late Mr. A. Izgur, of Los Angeles, for some translation from the Russian; to the libraries of the University of California (Los Angeles) and the University of Southern California, Los Angeles County Law Library, Los Angeles City Central Library, and their

Preface

ix

staffs, with particular acknowledgments to Miss Hilda Gray and her staff in the Government Publications Room at the University of California, Los Angeles, and Mrs. I. O. Haberly of the University of Southern California library. Los Angeles, California January, 1959

M. G.

CONTENTS

PART

I

INTRODUCTION I. THE PLACE OF L A W IN WAR

T h e Apparent Contradiction of Law and War How Law Developed in War T h e Sources of the Law of War T h e Sanctions behind the Laws of War T h e Nature of International Law T h e Political Nature of War T h e Urgent Need for a New Convention on the Laws of War Effect of the Charter of the United Nations on the Laws of War Does the Charter Outlaw War? Individual Responsibility for War Crimes under the Charter Warfare with Uncivilized Peoples

PART

3

3 3 4 9 11 16 20 23 23 29 30

II

T H E C O M M E N C E M E N T OF W A R AND ITS PARTICIPANTS II. WAR BEGINS

Declaration of War Lawful and Unlawful War Treatment of Resident Enemy Aliens

35

35 39 44

xii

Contents

III. THE ARMED FORCES

Belligerents and Nonbelligerents Lawful Belligerents Regular Armed Forces Irregular Armed Forces T h e Levée en Masse Uncivilized Combatants

PART

53

53 55 58 58 62 64

III

T H E V I C T I M S OF W A R IV. THE WOUNDED, SICK, AND DEAD OF THE ARMED FORCES

Introductory T h e Provisions of Geneva Convention I, 1949 General Application of the Convention Supervision by Protecting Powers and Humanitarian Organizations T h e Wounded and Sick T h e Dead T h e Status of the Personnel Protection of Medical Units and Establishments Buildings and Material of Medical Units and Establishments Medical Transports T h e Distinctive Emblem of the Medical Services Execution of the Convention Repression of Abuses and Infractions of the Convention

67

67 68 68 70 72 76 77 82 85 86 88 92 92

V. PRISONERS OF WAR

Introductory T h e Provisions of Geneva Convention III, 1949 T h e Persons and Circumstances to which the Convention Applies Supervision by Protecting Powers and Humanitarian Organizations Protection of Prisoners of War; General Provisions Captivity Beginning of Captivity

95

95 96 96 102 102 105 105

xiii

Contents

Internment of Prisoners of War General Provisions T h e Quarters, Food, and Clothing of Prisoners of War Hygiene and Medical Attention Religious, Intellectual, and Physical Activities Discipline Rank of Prisoners of War Transfer of Prisoners of War after Arrival in Camp Labor of Prisoners of War Financial Resources of Prisoners of War Relations of Prisoners of War with the Exterior Relations between Prisoners of War and the Authorities Complaints of Prisoners of War Respecting the Conditions of Captivity Prisoner of War Representatives Penal and Disciplinary Sanctions General Provisions Disciplinary Sanctions Judicial Proceedings Termination of Captivity Direct Repatriation and Accommodation in Neutral Countries Release and Repatriation of Prisoners of War at the Close of Hostilities Exchange of Prisoners of War Death of Prisoners of War Information Bureaus and Relief Societies for Prisoners of War Execution of the Convention VI. T H E P R O T E C T I O N

O F C I V I L I A N PERSONS IN T I M E

108 108 m 113 114 115 116 117 118 121 126 129 129 129 131 131 134 138 142 142 145 148 148 150 152

OF W A R

A New Departure T h e Provisions of Geneva Convention IV, 1949 Persons and Circumstances to which the Convention Applies Supervision by Protecting Powers and Humanitarian Organizations

154

154 156 156 161

xiv

Contents

Protection of the Entire Populations of the Belligerents Status and Treatment of Protected Persons Provisions Applicable to All Protected Persons Regulations for the Treatment of Internees General Provisions Places of Internment Food and Clothing Hygiene and Medical Attention Religious, Intellectual, and Physical Activities Labor Regulations Personal Property, Financial Resources, and Identity Documents Administration and Discipline Relations with the Exterior Penal and Disciplinary Sanctions Transfer of Internees Deaths Release, Repatriation, and Accommodation in Neutral Countries National Information Bureaus and the Central Information Agency Execution of the Convention T h e Prevention and Punishment of the Crime of Genocide T h e Provisions of the Convention on Genocide, 1948

161 168 168 171 171 173 175 175 176 177 178 180 182 186 189 190 191 192 194 196 199

PART I V ENEMY T E R R I T O R Y A N D P R O P E R T Y VII. OCCUPATION OF TERRITORY, MILITARY GOVERNMENT, AND CIVIL AFFAIRS

A Survey What Occupation Is Conduct of the Occupation

20g

209 213 219

xv

Contents

Proclamations, Ordinances, Orders, and Instructions 219 Administration of Occupied Territory; General Principles 223 Various Aspects of Administration 227 Civil-Affairs Agreements for Liberated Areas 235 Addendum: Status of Foreign Armed Forces in Friendly Territory Not Under Their Occupation 237 Justice in Occupied Territories 240 Local Officials in Occupied Territory 260 Status of the General Population in the Occupied Territory 263 VIII. ENEMY PROPERTY

278

General Principles Regarding Its Treatment 278 Enemy Property Involved in Active Military Operations 281 Enemy Property in Occupied Territory 286 Public Property 287 Private Property 293 The Custodian of Enemy Property 305 Reparations 3og

PART

V

HOSTILE AND NONHOSTILE RELATIONS OF BELLIGERENTS IX. METHODS AND INSTRUMENTS OF WARFARE

The Principles Governing the Conduct of Warfare Whether Certain Means of Injury Are Permissible Ruses of War Propaganda Intelligence In General Espionage War Treason Bombardment, Siege, and Assault What Is Subject to Attack Warning of Bombardment Protected Buildings, Places, and Objects Conduct of a Siege

313

313 316 318 322 325 325 326 330 332 332 338 340 349

xvi

Contents A i r Warfare Instruments of Warfare T h e General Principle T h e Special Conventions Some Modern Weapons Considered T h e Standards of Assessment Fire Weapons Mines Guided Missiles Big Bombs T h e Atomic Bomb T h e Hydrogen Bomb

351 353 353 354 359 359 360 362 365 367 368 375

X . INTERCOURSE B E T W E E N B E L L I G E R E N T S

T h e Necessity for Nonhostile Relations Parlementaires and Flags of T r u c e Armistices Capitulations Cartels, Military Passports, Safe-conducts, Safeguards

PART

378

378 380 385 392 and 397

V I

T H E E N F O R C E M E N T OF T H E LAWS OF W A R XI. MEANS OF ENFORCEMENT OF THE L A W S OF W A R

In General Reprisals Hostages XII. T H E P U N I S H M E N T

403

403 407 413 O F W A R CRIMES

A Cardinal Development T h e Nuremberg Judgment Crimes Against Peace Crimes Against Humanity Conventional W a r Crimes Attempts, Incitement, Complicity, Membership in a Criminal Organization, Conspiracy T h e Guilty State of Mind Capacity

418

418 423 445 459 463 467 477 487

xvii

Contents T h e Pleas of Superior Orders and Necessity Duress T h e Plea of Superior Orders T h e Defense of Necessity War-Crimes Courts and T h e i r Procedure

PART

489 489 490 496 502

V I I

NEUTRALITY XIII. N E U T R A L I T Y IN P R E S E N T - D A Y W A R

Is Neutrality Still Possible? T h e Effect of the Covenant of the League of Nations T h e Effect of the Pact of Paris, 1928 T h e Effect of the Saavedra Lamas Treaty, 1933 General Position in Regard to Neutrality on the Outbreak of World W a r II T h e Effect of the United Nations Charter Neutralized States and Waterways Nonbelligerency Summary Undeclared W a r XIV. T H E L A W S O F N E U T R A L I T Y

515

515 516 517 519 522 522 527 529 531 531

IN L A N D W A R F A R E

T h e Scope of the Discussion T h e Inviolability of Neutral Territory T h e Use of Communications on Neutral Territory by Belligerents Intelligence on Neutral Territory Organization and Recruitment of Belligerent Forces on Neutral Territory T h e Supply of W a r Material to Belligerents from Neutral Territory Loans to Belligerents Internment of Belligerent Forces in Neutral Terri-

tory

Status of Escaped Prisoners of W a r on Neutral Territory T h e Sick and Wounded of Belligerents on Neutral Territory and the Status of Medical Personnel and Chaplains

532

532 534 541 544 545 547 553

553 561

562

xviii

Contents Accommodation of Prisoners of W a r Countries Information Bureaus to Be Instituted Powers Accommodation of Civilian Internees Countries T h e Status of Neutral Persons T h e Status of Neutral Aircraft and sonnel T h e Belligerent Right of Angary Reprisals between Belligerents W h i c h trals Remedies for Breach of Neutrality

PART

in Neutral 570 by Neutral 570 in Neutral 570 570 T h e i r Per581 581 Affect Neu583 584

VIII

T E R M I N A T I O N OF W A R XV. MEANS AND EFFECTS OF TERMINATION OF W A R

Introductory Treaty of Peace Subjugation Simple Cessation of Hostilities General Effects of Termination of W a r

PART

587

587 588 600 603 604

I X

A R M E D C O N F L I C T N O T OF AN INTERNATIONAL CHARACTER XVI. CIVIL AND COLONIAL WAR

619

APPENDICES

Appendix I.—Draft Agreement Relating to Hospital Zones and Localities (Annex I to Geneva Convention I, 1949)

631

Draft Agreement Relating to Hospital and Safety Zones and Localities (Annex I to Geneva Convention IV, 1949)

631

Appendix II.—Regulations Concerning Collective Relief (Annex III to Geneva Convention III, 1949)

635

Appendix III.—Model Agreement Concerning Direct Repatriation and Accommodation in Neutral Countries of Wounded and Sick Prisoners of War (Annex I to Geneva Convention III, 1949)

638

Appendix IV.—Regulations Concerning Mixed Medical Commissions (Annex II to Geneva Convention III, 1949)

644

Appendix V.—Draft Regulations Concerning Collective Relief (Annex II to Geneva Convention IV, 1949)

647

Appendix

650

VI.—The

Hague Rules of Air Warfare, 1923

List of Cases

671

List of Treaties

678

Bibliography

684

Index

699

ABBREVIATIONS

A.C. (preceded by date) . . . Law Reports, Appeal Cases, House of Lords, 1 8 9 1 - (Eng.). A.J.I.L. . . . American Journal of International Law. All E. R . (preceded by date) . . . All England Law Reports, 1936(Eng.). Ann. Dig. (date) . . . Annual Digest and Reports of Public International Law Cases (date indicates vol.). Annuaire . . . Annuaire de l'Institut de droit international. App. Div. (New York Supreme Court) . . . New York Appellate Division Reports, 1896-. At. (2d) . . . Atlantic Reporter, 2d Series, 1938- (U.S.). 1-2 Black . . . 66-67 United States [Supreme Court] Reports, 1 8 6 1 62. Br.MM.L. . . . (British) Manual of Military Law. chap, xiv . . . Amendments (No. 12), 1936 ( " T h e Laws and Usages of War on Land"). Pt. I l l . . . Part I I I (The Law of War on Land), 1958. Brit. Yr. Bk. of Int. Law . . . British Year Book of International Law. C.A. . . . Court of Appeal (Eng.). Ch. (preceded by date) . . . Law Reports, Chancery Division, 1 8 9 1 (Eng.). Commercial Cases (Com. Cas.) . . . Commercial Cases, 1895- (Eng.). Con v. . . . Convention 1 - 9 Cranch . . . 5 - 1 3 United States [Supreme Court] Reports, 1 8 0 1 1815. C. Rob. . . . Chr. Robinson's Admiralty Reports, 1798-1808, 6 vols. (Eng.). Ct. . . . Court Dist. . . . District Div. . . . Division D . L . R . . . . Dominion L a w Reports, 1 9 1 2 - (Canada). Dodson (Dods.) . . . Dodson's Reports, Admiralty, 1 8 1 1 - 1 8 2 2 , 2 vols. (Eng.). E.D. . . . Eastern District Eng. Reps. . . . English Reports, Full Reprint. 1220-1865, 178 vols.

xxii

Abbreviations

Entscheidungen . . . Entscheidungen des Oberprisengerichts in Berlin. f. (following a page number). . . . reference extends to one or more pages beyond the page indicated. Fauchille . . . Fauchille, Paul, Traité de Droit International Public. Fenwick . . . Fenwick, C. G., International Law. Fed. Rept. . . . Federal Reporter, 1880-1924, 300 vols. 2d . . . 2d Series, 1924-. Final Record . . . Final Record of the Diplomatic Conference of Geneva of 1949. At this conference, Committee I was assigned to Geneva Conventions I and II; Committee II, to Geneva Conv. I l l ; Committee III, to Geneva Conv. IV; the Joint Committee to articles common to the four conventions. French Manual . . . Manuel de Droit International à l'usage des officiers de l'armée de terre. F. Supp. . . . Federal Supplement, 1924-. Gen. Ass. . . . General Assembly Geneva Conv. I, 1949 . . . Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949. Geneva Conv. II, 1949 . . . Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949. Geneva Conv. I l l , 1949 . . . Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949. Geneva Conv. IV, 1949 . . . Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949. Hackworth . . . Hackworth, G. H., Digest of International Law. Hague Conv. I, 1907 . . . Convention for the Pacific Settlement of International Disputes, 1907. Hague Conv. II, 1907 . . . Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, 1907. Hague Conv. I l l , 1907 . . . Convention relative to the Opening of Hostilities, 1907. Hague Conv. IV, 1907 . . . Convention concerning the Laws and Customs of War on Land, 1907. Hague Conv. V, 1907 . . . Convention respecting the Rights and Duties of Neutral Powers and Persons in War on Land, 1907. Hague Conv. VI, 1907 . . . Convention relative to the Status of Enemy Merchant-ships at the Outbreak of Hostilities, 1907. Hague Conv. VII, 1907 . . . Convention relative to the Conversion of Merchant-ships into War-ships, 1907.

Abbreviations

xxiii

Hague Conv. VIII, 1907 . . . Convention relative to the Laying of Automatic Submarine Contact Mines, 1907. Hague Conv. IX, 1907 . . . Convention respecting Bombardment by Naval Forces in Time of War, 1907. Hague Conv. X , 1907 . . . Convention for the Adaptation of the Principles of the Geneva Convention to Maritime War, 1907. Hague Conv. XI, 1907 . . . Convention relative to Certain Restrictions on the Exercise of the Right of Capture in Maritime War, 1907. Hague Conv. XII, 1907 . . . Convention relative to the Establishment of an International Prize Court, 1907. Hague Conv. XIII, 1907 . . . Convention respecting the Rights and Duties of Neutral Powers in Maritime War, 1907. Hague Declaration XIV, 1907 . . . Declaration prohibiting the Discharge of Projectiles and Explosives from Balloons, 1907. Hague Regulations, 1907 . . . Regulations respecting the Laws and Customs of War on Land, annexed to Hague Convention IV, 1907. How. St. T r . . . . Howell, T.B., State Trials (1163-1820), 34 vols. (Eng.). Hyde . . . Hyde, C. C., International Law . . . I.L.R. (date) . . . International Law Reports (date indicates vol.). Int. . . . International K.B. or Q.B. (preceded by date) . . . Law Reports, Queen's and King's Bench, 1891- (Eng.). L.J.M.C. . . . Law Journal, Magistrates' Cases, 1831-1896 (Eng.). LI. L. Rep. . . . Lloyd's List Law Reports, 1919- (Eng.). L.R.T.W.C. . . . U.N. War Crimes Commission, Law Reports of Trials of War Criminals Mil. . . . Military Misc. (New York Supreme Court) . . . New York Miscellaneous Reports, 1892Moore, International Law Moore, J. B., International Law and Some Current Illusions. Moore P.C. . . . Moore, E. F., Privy Council Cases, 1836-1862, 15 vols. (Eng.). M.P.R. . . . Maritime Provinces Reports (Newfoundland Reports included since April 1, 1949), (Canada). N.D. (N. Div.) . . . Northern Division N.J. Eq. . . . New Jersey Equity Reports, 1830-1948. N.Y.S.2d . . . New York Supplement 2d Series, 1938-

xxiv

Abbreviations

Nuremberg Judgment . . . Nazi Conspiracy and Aggression, Opinion and Judgment. Off. Rees. . . . Official Records Oppenheim . . . Oppenheim, International Law. P. (preceded by date) . . . Law Reports, Probate, Divorce and Admiralty Division, 1891- (Eng.). Pa. Super. Ct. . . . Pennsylvania Superior Court Reports, 1895-. par. . . . paragraph Q.B. . . . See K.B. Rolin . . . Rolin, Le Droit Moderne de la Guerre. R.S.F.S.R. . . . Russian Socialist Federal Soviet Republic. Russ. and Jap. P.C. . . . Russian and Japanese Prize Cases. Schwarzenberger, I . . . Schwarzenberger, International Law, Vol. I. S.D. . . . Southern District Sess. . . . Session S.J. (Sol. Jo.) . . . Solicitors' Journal, 1856- (Eng.). Stat. . . . U.S. Statutes at Large, 1789-. Supp. or Suppl. . . . Supplement T.L.R. . . . Times Law Reports, 1884- (Eng.). Tokyo Judgment . . . International Military Tribunal for the Far East. Judgment. Trib. . . . Tribunal TWC . . . Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10. U.N. Sec.-Gen.'s Memo. . . . The Charter and Judgment of the Nürnberg Tribunal, History and Analysis. U.S. (law reports) . . . United States [Supreme Court] Reports, 1754-. U.S. Articles of War . . . Act of June 4, 1920, chap. II (41 Stat. 787; U.S.C., title 10, sees. 1471-1593), as amended and effective until Ma Y 31» W U.S.C. . . . United States Code. USCMA . . . Decisions of the United States Court of Military Appeals, 1951U.S. Law . . . The Law of Land Warfare, Dept. of the Army Field Manual FM 27-10, July 18, 1956. U.S. Rules . . . Rules of Land Warfare, War Dept. Field Manual FM 27-10, October 1, 1940. U.S. UCMJ . . . Uniform Code of Military Justice, United States, Act of May 5, 1950 (64 Stat. 107; U.S.C., title 50, sees. 551-736). WCT Series . . . War Crimes Trials, Wm. Hodge 8e Co., Ltd., London, 1948-. W.D. . . . Western District 1 - 1 2 Wheaton (Wheat.) . . . 14-25 United States [Supreme Court] Reports, 1816-1827.

PART I INTRODUCTION

I THE IN

PLACE

OF

LAW

WAR

THE APPARENT

CONTRADICTION

OF L A W A N D W A R A t first sight law and war are terms which negate each other. Law generally implies an orderly polity where human relationship and behavior are governed by inescapable rules. Normally, such rules both promote peace and require peace for their operation. T h e rule of law and the existence of peace have, therefore, come to be regarded as interchangeable expressions. War, on the other hand, appears to connote the abandonment of the restraint of rules of behavior in international intercourse, by substituting in their place reliance on brute force. No judicial consideration of rights and wrongs resolves the issue between warring nations. T h a t is decided by might alone. " T h e victor shall not be asked later on whether we told the truth or not. In starting and making a war, not the Right is what matters, but Victory," Hitler claimed. 1 What, therefore, has law to do with war, and war with law? H O W L A W D E V E L O P E D IN W A R In early historical times war was indeed waged with all the unalleviated cruelty of which human fiendishness is capable. So far as law had relation to such contests, they were governed only by the law of tooth 1 Speech of August 22, 1939, cited in Nuremberg Judgment, p. 32. [General note. Full bibliographical information on all citations in this work will be found in the bibliography. Where necessary, the list of abbreviations should also be consulted.]

4

The Place of Law in War

and claw or the law oi the jungle, that is, by no law at all as it is conceived in the science of jurisprudence. However, just as man developed in other ways, so did his conduct of war. Warfare remained basically as destructive as ever, even more so with the invention of still more deadly weapons and new methods. Nevertheless, those who conducted wars saw there were definite advantages in observing certain restraints based upon reason, provided the enemy did likewise. T h e laws of chivalry of the Middle Ages and the influence of Christianity also contributed to this mitigation. For instance, the white flag of truce came to be respected and those who conducted parleys under its cover. War became no less deadly, but wanton savagery lessened. Gradually such practices were so universally observed that they became usages or customs of warfare, hardening into rules of legal effect, so that their infringement was deemed a crime and offenders falling into enemy hands were punishable as war criminals. Trials of war criminals are by no means a modern concept. A noteworthy example took place in 1474, when one Sir Peter of Hagenbach was tried at Breisach, Germany, on crimes analogous to the "crimes against humanity" preferred at present-day Nuremberg. 2 By 1625, such rules had so crystallized that Grotius, the greatest though not the first in his field, the man who is regarded as the father of modern international law, was able to collate the writings of his predecessors and set them down in three volumes entitled De Jure Belli ac Pads Libri Tres (On the Law of War and Peace). This work of the Dutch savant is the cornerstone of modern international jurisprudence. War, like most other fields of human activity, today is regulated and contained by a body of laws. These laws, which form part of international law, it is the purpose of this work to consider. T H E SOURCES OF T H E L A W OF W A R What is called the modern law of war is derived from a number of sources. There are, first, the customs or usages of war generally accepted by the nations of the world, 3 which have been already mena Cited in The High Command Case (United States v. von Leeb, et al.) (1948), U.S. Military Tribunal, Nuremberg, TWC, X, 476. For a description of the case, see Schwarzenberger, I, 308-310. Like many of the accused in present-day war crimes trials. Sir Peter of Hagenbach pleaded superior orders in his defense. He was convicted. ' S u c h acceptance or consent may be express or tacit, including consent by conduct; see The Justice Case (United States v. Altstoetter, et al.) (1947), U.S. Military

The Place of Law in War

5

tioned. These can fittingly be compared to the common law of the Anglo-Saxon countries,4 a system of organic growth finding its origin in man's natural sense of reason and justice. Such customary rules spring from what Grotius called "the law of nature," which he defined in the first chapter of his work, under the title "What is War? What is Law?", as "a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity, and that in consequence, such an act is either forbidden or enjoined by the author of nature, God." 6 This primary source of international law lies, therefore, essentially in man's innate sense of justice, which forms a bottomless well to be drawn upon when other springs run dry. T h e next source lies in the treaties by which nations have agreed to be bound to each other. These may be termed the statute law of the nations; the law specifically enacted and reduced to signed documentary form. Particularly important are those treaties which have a great number of nations as parties (multilateral treaties), since their general acceptance demonstrates the generality of the principles which they contain. Examples are the Hague Conventions of 1899 and 1907, and the Geneva Conventions of 1929 and 1949. T h e latter half of the nineteenth century and the early part of the twentieth saw a determined effort by the leading states to mitigate the evils of war by agreeing to codes of rules regulating its conduct. These efforts reached their highest expression in the conferences conducted in Holland at T h e Hague in 1899 and 1907. T h e Hague Regulations ("The Regulations Respecting the Laws and Customs of War on Land") which were annexed to the fourth of the Hague Conventions of 1907, still form basically the modern soldier's vade mecum. Much of the regulations is merely the setting down of already existTribunal, Nuremberg, L.R.T.W.C., VI, 34-35, and authorities there cited. See also Oppenheim, I, 24; Moore, "Law and Organization," International Law . . . , p. 303. Acceptance by conduct of a rule of international law may be manifested even by "the failure of interested States to make appropriate objection to practical applications of it." Hyde, I, g, cited in the judgment in The Justice Case, above, at p. 35. For the basis of international law in the general consent of the states of the world, see below, p. 13. 4 Cf. Scott, ed., Texts of the Peace Conferences at The Hague, 1899 and 1907, pp. xi, xii. 5 Grotius (Kelsey trans.), Bk. I, p. 38; see also pp. 42 and 44 for the relationship of custom to the law of nature and the law of nations.

6

The

Place of Law

in

War

6

ing customs of war, and the regulations do not pretend to cover all contingencies. T h e authors of that convention were under no delusions concerning the imperfections in their joint labors and set on record the following declaration as a safeguard in cases not covered by the regulations formulated. In the preamble to the convention they state: According to the views of the High Contracting Parties, these provisions, the drafting of which has been inspired by the desire to diminish the evils of war, so far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants. It has not, however, been found possible at present to concert stipulations covering all the circumstances which arise in practice; On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in default of written agreement, be left to the arbitrary opinion of military commanders. Until a more complete code of the laws of war can be drawn up, the High Contracting Parties deem it expedient to declare that, in cases not covered by the rules adopted by them, the inhabitants and the belligerents remain under the protection and governance of the principles of the law of nations, derived from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience.' Therefore, where the enacted rules of war do not cover a particular case, the nations still have recourse to the first source discussed. T o this view the International Military T r i b u n a l which tried the major German war criminals at Nuremberg, 1 9 4 5 - 1 9 4 6 , has added its massive weight. In its judgment that court declared; " T h e law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. T h i s law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing." 8

•This was emphasized in numerous judgments in World War II cases, which, therefore, excluded application of the "general participation clause" (Art. 2) of Hague Convention IV, 1907 (see below, pp. 68-69) >n a PPtyi n g the Regulations. The Nuremberg Judgment, p. 83, stated: "by 1939 these rules . . . were regarded as being declaratory of the laws and customs of war." ' T h i s clause of the preamble is known as the de Martens clause after M. de Martens of Russia, its author at the first Hague Peace Conference, 1899; see Scott, ed., The Proceedings of the Hague Peace Conferences, Conference of 1899, pp. 547548, 554; Hull, The Two Hague Conferences . . . , pp. 219-220. M. de Martens was the president of the second commission at that conference, the commission in charge of the laws and customs of land warfare. 8 Nuremberg Judgment, p. 51; cf. Tokyo Judgment, p. 65.

The Place of Law in War

7

" T h e testimony of those who are skilled in it," 9 that is, the law of nations, is another source for establishing the terms of that law. Since the courts applying the laws of war have to find authoritative expression of them, inevitably Grotius and other distinguished international jurists are themselves cited in proof. T h e courts draw upon their writings when amplification and explanation are needed for the law bearing on an issue. In the same way, the labors and publications of the recognized international law associations, such as the Institut de Droit International, the International Law Association, and the American Institute of International Law, carry persuasive weight. Naturally, decisions of the world's great courts have contributed to the laws of war. Some such tribunals are international courts specifically set up to rule between states, as was the Permanent Court of International Justice at T h e Hague, and its present-day successor the United Nations' International Court of Justice, at the same place. Others are national courts whose decisions on international law command world-wide respect. Examples are the United States Supreme Court and the British prize courts. For instance, two recent judgments of the United States Supreme Court, Ex parte Quirin, et al. (The Case of the German Saboteurs)10 and In re Yamashita,11 were often cited by the various tribunals, including the Nuremberg Tribunal, which tried the German war criminals after World War II. Similar to the judgments of the permanent courts are the decisions of notable ad hoc international tribunals. Such was the oft-quoted award in the international arbitration which settled the Alabama dispute between the United States and Britain, and which arose from the American Civil War. A more modern instance is the judgment of the Nuremberg Tribunal. However, international law knows of no system of precedent corresponding to that which obtains under Anglo-Saxon systems of law. A decision rendered has no binding effect other than between the parties to that case. This is emphasized in Article 59 of the Statute of the International Court of Justice, which states: " T h e decision of the Court has no binding force except between the parties and in respect of that particular case." Other international courts, therefore, as well as the court which handed down the judgment, are free—under international law—to vary such a decision in a later case. This means that the intrinsic "Grotius (Kelsey trans.), Bk. I, p . 44. »(1942), 317 U.S. 1; 37 A.J.IX. 152. 1 1 (1946), 327 U.S. 1; 40 A.J.I.L. 432.

8

The Place of Law in War

merits of a judgment lend it authority, not just the standing of the tribunal which issued it. Such a precedent is termed persuasive; if another court thinks well of it, then it may adopt the same process of reasoning in rendering its own judgment. There is no compulsion, except that which arises from intellectual conviction. This view corresponds to that followed in the municipal (national) legal systems on the European continent. Finally, another source of international law lies in those general principles which are common to the legal systems of the nations of the world. 12 If murder is a crime condemned and punished by the laws of each separate state, then it would be curious indeed if murder were not so regarded and treated in the law governing the international community. A t the Nuremberg Trial "it was submitted by the Defense that international law is concerned with the action of sovereign states, and provides no punishment of individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State." 18 Grotius had already mentioned such a point of view. He quotes: "Cyprian declares: 'Murder committed by individuals is a crime; when accomplished by public authority it is called a virtue. Wicked deeds acquire immunity not on the plea that they are void of guilt but because their ruthlessness is on a grand scale.' Later he adds: 'The laws have come to terms with crimes; whatever is public begins to be permissible'." 14 T h e Nuremberg Tribunal firmly rejected such submissions by the defense (Nuremberg Judgment, p. 52), and so affirmed the proposition that murder is murder in all languages, not excluding the language used between nations. It is noteworthy that in the German war crimes trials following on the Nuremberg Trial, the counts alleging the charges contained such phrases as: " T h e acts and conduct of the defendants . . . constitute violations of the . . . general principles of criminal law as derived from the criminal law of all civilized nations." 1 5 12 History of the U.N. War Crimes Commission and the Development of the Lauis of War, p. 29. Cf. Art, 38 (IC) of the Statute of the International Court of Justice. 13 Nuremberg Judgment, p. 52. "Grotius (Kelsey trans.), Bk. Ill, p. 645. " See, for example, The Einsatzgruppen Case (United States v. Ohlendorf, et al.) (1947), U.S. Military Tribunal, Nuremberg, TWC, IV, 21.

The Place of Law in War

9

T H E S A N C T I O N S B E H I N D T H E L A W S OF W A R It is clear international law that however international war breaks out, and whether the waging of that war is justifiable or not, so long as a state of war exists the rules of war apply. "Even a war, illegal . . . is nevertheless . . . regulated by the laws of war. This rule of international law is firmly established and recognized by all leading international lawyers." 16 In conformity with the view which has remained unchallenged . . . Grotius lays down that the question of the justice or injustice of the war is irrelevant for the purpose of observing the rules of warfare as between the belligerents." 17 Assuming, therefore, that the laws of war apply to all types of warfare of an international character, how are such laws enforced? What "sanctions," to use the technical expression, may be imposed to ensure conformity with those norms? T h e combatant states are already at war, their reliance is on force; the war may have been entered upon by one or both parties in defiance of world opinion; what or who is to compel them to abide by any rules which may exist? In effect, each nation may be supposed to be a law unto itself in such circumstances, because there is no supernational authority to exercise police powers over them. It may be argued that the United Nations is such a power; that it exists not only to suppress illegal wars but to secure respect "for the obligations arising from treaties and other sources of international law," as stated in the preamble of the Charter. There are in fact a number of instances where wars may still be fought without contravening the terms of the Charter, as will be discussed later. 18 But whatever the circumstances of United Nations intervention in an international dispute, whether against an aggressor or to compel compliance with the rules of war, in the last resort the United Nations itself would be thrown back on military action under Chapters VII and V I I I of the Charter to coerce obedience. In such circumstances, the United Nations 1 8 Kunz, " T h e Chaotic Status of the Laws of War . . . 45 A.JJJL. 55, and the authorities there cited; see also Hyde, III, 1693; Oppenheim, II, 150, 174-175; Fauchille, II, par. 1005; Rolin, I, par. 17. Cf. the statement by the United Kingdom delegation at the Diplomatic Conference of Geneva, 1949, that it "was essential that war, even illegal war," should be so governed. Final Record, IIA, 426, 562: Report of Committee II. Article 2, common to all four Geneva Conventions, 1949, recognizes this principle; see below, p. 68. See also pp. 453-454, below, and U.S. Law 8b; Br.M.M.L., Pt. Ill, par. 634, n. 3. 17 Lauterpacht, " T h e Grotian Tradition in International Law," Brit. Yr. Bk. of Int. Law, XXIII (1946), 39. 18 Below, pp. 24-29.

io

The Place of Law in War

itself would become a belligerent, as happened in the Korean war, 1950-1953; a fact which the term "police action," 1 9 originally applied to that conflict, cannot obscure. If then the United Nations were a party to a war in its supernational role, how could it ensure that the enemy would abide by the recognized rules of warfare? Who would be the universal umpire in such wars? 20 It is further to be noted that, so far, the international community has not established a permanent international criminal court, with jurisdiction to try war criminals. The Nuremberg Tribunal was created only ad hoc. Such a permanent court is contemplated by the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on December 9, 1948, in Article VI and the annexed resolution which referred the matter for study by the International Law Commission. 21 However, a court of this nature has yet to come into existence. In practice, respect for the laws of war is compelled by several means. Such are reprisals, which in war consist of retaliatory actions, in effect a payment in kind, to force an offending party to conform to the rules of warfare. T h e fear alone of reprisals acts to a great extent as a deterrent. In the past, hostages have also been used for this purpose, but this practice is now obsolescent, if not obsolete. Individuals guilty of war crimes who fall into enemy hands may be tried and punished. The foregoing are all forcible means, but there also exist more pacific and subtle methods to compel adherence to law by an enemy careless of international rules. Complaints lodged with the enemy (under flags of truce or through a third, neutral, party) are the usual prelude to reprisals where satisfaction is not given. The complaints are sometimes transmitted specifically to neutral states, not necessarily to enlist their good offices or mediation, but to demonstrate to the world at large the evil ways of the enemy, and so to alienate neutral opinion. The sanction of world opinion is powerful, increasingly so with the development of psychological warfare and the fight for men's minds. The adverse effect of a belligerent's illegal actions upon world 19 T h e term used by the President of the United States, Mr. Truman, at his news conference, June 29, 1950; see below, p. 25. " F o r the necessity of compliance by United Nations forces with the laws of war in military action taken under the U.N. Charter, see below, pp. 24-26. 21 Human Rights and Genocide (U.S. Dept. of State Pub. 3643, 1949), pp. 61, 63. A draft statute for an International Criminal Court has been formulated by the U.N. Committee on International Criminal Jurisdiction, established by Resolution 489 (V) of the U.N. General Assembly, December 12, 1950; see 46 A.J.I.L., Supp., 1 f.

The Place of Law in War

11

opinion may be decisive, finally turning neutrals into participants in the struggle, as happened in the two world wars when the United States became alienated by German methods of warfare (such as the unrestricted submarine war of World War I) and finally intervened, rendering Germany's defeats inevitable. Neutral opinion is, in fact, not always content to wait for an invitation to express itself. International law recognizes that a neutral may offer its good offices or mediation of its own volition. 22 T h e sanctions of the laws of war, therefore, fall into two main groups. One, the application of retaliatory force and punishments; the other, the force of world opinion. T H E N A T U R E OF I N T E R N A T I O N A L L A W T h a t international law cannot be enforced in the same way municipal laws are brought to bear, brings up the root question: whether international law is law at all, or merely a set of pious aspirations. Can there be laws which are not administered and enforced by a dominant political authority? T h e difficulty in envisaging such a point of view was exemplified by the English school of jurists, which for a long time balked at accepting international law as true law. In this it was chiefly influenced by the writings of the nineteenth-century Englishman, John Austin, a disciple of Jeremy Bentham, the utilitarian philosopher. Austin, and those who followed him (the Positivist or Analytical School of Jurisprudence), conceived of law as general commands (or rules) laid down for the guidance of persons by politically sovereign authorities having power to enforce those commands, and to whom the members of the community were in the habit of obedience. They could not contemplate as law rules which were not backed up by the power of a political superior. T o this school of legal thought, international law has provided a perennial puzzle. Especially, as before the days of the League of Nations and United Nations there was no authority which could be regarded as supernational. T h e world called international law "law," regarded it as such, expected obedience to its rules—and yet where was the political superior, the sovereign, who would enforce those norms? So, instead of widening their conception of law to include a system which the world in general regarded as truly legal, they proceeded to fit international law to their preconceived ideas. Sir T . E. 22Br.M.M.L.,

Pt. Ill, par. 623.

12

The

Place

of Law

in

War

Holland, for instance, once even president of the Institut de Droit International, a leading association devoted to the study of that law, declared that international law "can indeed be described as law only by courtesy, since the rights with which it is concerned cannot properly be described as legal." 23 He also stated, " 'International law' is law only by analogy." 24 Holland reasoned in this manner: It is plain that if Law be defined as we have defined it, a political arbiter by which it can be enforced is of its essence, and law without an arbiter is a contradiction in terms. Convenient therefore as is on many accounts the phrase "International Law," to express those rules of conduct in accordance with which, either in consequence of their express consent, or in pursuance of the usage of the civilised world, nations are expected to act, it is impossible to regard these rules as being in reality anything more than the moral code of nations.20

Ideas have changed since Holland's day among many legal theorists in England, 26 and even in his time weighty English opinion was Holland, The Elements of Jurisprudence, 13th ed., p. 133. p. 135. xIbid., pp. 134-135. Cf. the following appraisal of the nature of the laws of war in The War Book of the German General Staff, at pp. 70-71: " T h e fact that such limitations of the unrestricted and reckless application of all the available means for the conduct of war, and thereby the humanization of the customary methods of pursuing war really exist, and are actually observed by the armies of all civilized States, has in the course of the nineteenth century often led to attempts to develop, to extend, and thus make universally binding these pre-existing usages of war; to elevate them to the level of laws binding nations and armies, in other words to create a codex belli; a law of war. A l l these attempts have hitherto, with some few exceptions to be mentioned later, completely failed. If, therefore, in the following work the expression 'the law of war' is used, it must be understood that by it is meant not a lex scripta introduced by international agreements; but only a reciprocity of mutual agreement; a limitation of arbitrary behavior, which custom and conventionality, human friendliness and a calculating egotism have erected, but for the observance of which there exists no express sanction, but only 'the fear of reprisals' decides." 23

24 Ibid.,

In Cater v. Sutter (1955), 51 A.J.I.L. 128, the Austrian Supreme Court rejected the argument that international law, including the Hague Convention on Land Warfare, has obligatory effect only to the extent to which it is respected in fact and that disregard of the Hague Convention by German authorities, as occurred in this case, made it legally inoperative. 26 See, for example, Allen, Law in the Making, pp. 22-25; Lauterpacht, "Kelsen's Pure Science of L a w " in Modern Theories of Law, pp. 125-129; Oppenheim, I, 3-15. Cf. Wheaton's Elements of International Law (6th Eng. ed., by Keith), I, 6, which, discussing the legal character of international law, states: " B u t Austin's definition, useful methodologically, has no general validity; customary law, despite its enormous importance, can be accommodated with it only by artifice, and what is more serious, it stresses the element of command in lieu of that of consent . . . T h e question of means of enforcement again can hardly be regarded as decisive of the definition . . ."

The Place of Law in War

13 27

prepared to hold that international law was true law, that is, rules of obligatory force. Today, most legal opinion throughout the world recognizes that international law is true law. Indeed, it would be difficult to hold otherwise since the world as a whole calls it law, regards it as law, accepts it as law, and expects it to be obeyed as law, even though the means of enforcing it are defective. Law is the expression of a social relationship and society itself must, therefore, be the final arbiter as to what it regards as law in those relationships.28 It is acknowledged that international law is still somewhat primitive and defective; that it corresponds very much to municipal (national) law in its early stages, before strong central governing bodies emerged.29 However, it is still law and must be obeyed as such, at the peril of the offender, as the war-crimes trials at Nuremberg and elsewhere after World War II demonstrated. The sanction exists in international law, as in other law, although the machinery for applying the sanction is at present uncertain and often tardy in operation.3« Grotius, in fact, recognizing the absence of an international governing body, declared that any sovereign power could punish offenses against international law, even when the offenses were directed neither against it nor its subjects. "The fact must also be recognized," he 27 See Hall, A Treatise on International Law, ist ed., p. 1; 8th ed., by Higgins, pp. 14-16. It may be noted that the first editions of both Holland's Jurisprudence and Hall's International Law were published in the same year (1880). See also Maine, International Law (1888), pp. 47-53, who stated: "From Austin's point of view International Law resembled morality more than law," but described Austin's criticisms "as very interesting and quite innocuous" and not "diminishing the dignity or imperative force of International L a w " in spite of defects in international law which Maine enumerates, particularly its lack of "a sanction or penalty." 28 See The Justice Case, above, L.R.T.W.C., VI, 34-38, for a discussion of the basis of international law in the general consent, express or tacit, of the states of the world, and the authorities there cited, including Hackworth, I, 1-4; Hyde, I, pp. 4, 5, 8, 9, 1 1 , 16, 17. See also, Oppenheim, I, 24; Schwarzenberger, Manual of Int. Law, p. 6; the case of the Lotus (1927), Judgments of the Permanent Court of International Justice, Series A, No. 10, at p. 18. See also above, pp. 4-5. 20 Kelsen, whose approach to jurisprudence is in principle the same as that of Austin, as Kelsen himself states (see Kelsen's General Theory of Law and State, p. xv), recognizes international law as true law, i.e., law in the same sense as national law, but primitive in its application in that it is characterized by self-help {ibid., pp. 328-341). 30 A Netherlands court, in holding that certain legislation promulgated by the Netherlands government in exile during World War II was applicable to Holland under German occupation, stated: " T h e temporary lack of sanctions did not exempt the citizens from their obligation of obedience to the law." Nederlands Beheersinstituut v. Robaver (1947), Dist. Ct., T h e Hague, Holland, Ann. Dig., 1947, Case No. 108; affirmed (1950), Holland Supreme Ct., Ann. Dig., 1949, Case No. 154.

14

The

Place

of Law

in

War

said, "that kings, and those who possess rights equal to those kings, have the right of demanding punishments not only on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever. . . . Truly it is more honorable to avenge the wrongs of others rather than one's own, in the degree that in the case of one's own wrongs it is more to be feared that through a sense of personal suffering one may exceed the proper limit or at least prejudice his mind." 3 1 In effect, therefore, Grotius regarded each sovereign power as a guardian of the whole of international law. This view accords with modern practice, 32 and in relation to war crimes has been termed the doctrine of universality of jurisdiction. 33 At the war-crimes trials after World W a r II in Germany and Japan, the judges who tried particular defendants were not necessarily from the nation injured by a particular accused's alleged criminal acts. It is agreed, for instance, that judges from neutral nations and even the vanquished powers could have been invited to sit in judgment at these trials. In fact, it is the complaint of some jurists regarding the Nuremberg Trial that this was not done. 34 A further and even more recent Grotius (Kelsey trans.), Bk. II, p. 504-505. This appears to have been the view taken by the Nuremberg Tribunal, see Nuremberg Judgment, p. 48. For comments on, and examples of, the application of this doctrine, see The Hadamar Trial (Trial of Klein, et al.) (1945), U.S. Military Commission, Wiesbaden, Germany, WCT Series, IV, p. xv of foreword by R. H. Jackson, Associate Justice, U.S. Supreme Ct., and pp. 4-5, 8-11 (arguments to the jurisdiction of the court). In this case, a U.S. military commission tried German nationals for war crimes committed during World War II against Polish and Russian nationals. See also The Peleus Trial (Trial of Eck, et al.) (1945), British Military Court, Hamburg, Germany, WCT Series, I, xvi of foreword by Sir David Maxwell Fyfe, English attorney-general during World War II. After World War II, U.S. military courts tried charges of war crimes against Germans even though the offenses were committed before the United States entered that war and although the victims of the crimes were not U.S. nationals, e.g., various of the crimes committed in concentration camps. One such case is Trial of Josef Remmele (1947), U.S. General Military Government Court, Dachau, Germany, L.R.T.W.C., XV, 44, where the accused was convicted on two violations of the laws and usages of war, committed against Czechoslovak and Russian nationals before the United States entered the war. See also Art. 49, par. 2, Geneva Conv. I, 1949, and note 91, p. 93, below, and corresponding articles in Geneva Convs. II, III, and IV, 1949; Cf. Art. 28, Hague Conv. for the Protection of Cultural Property in the Event of Armed Conflict, 1954. Reference may also be made to the "Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties," set up by the Preliminary Peace Conference at Paris, 1919, following World War I, 14 A.J.I.L. 121-124, respecting the jurisdiction of belligerents. 33 See L.R.T.W.C., I, 42. Cf. U.S. Law 507.; BrM.M.L., Pt. Ill, pars. 282, n. 2; 637. 31 See, for example, Kelsen, "Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?" Int. Law Quarterly 1 (1947), 170; Maugham, U.N.O. and War Crimes, pp. 27, 46. 31

32

The Place of Law in War

15

instance of the doctrine is contained in the articles 35 of the four Geneva conventions of 1949 which make provision for the punishment of "grave breaches" of those conventions. Each party to the conventions is placed under the obligation of punishing "grave breaches," irrespective of whether the injuries constituting the breaches were directed against it or its nationals. In other words, states neutral to a conflict are under a duty to punish breaches of the conventions. International law not only "regulates the rights which prevail between State and State," 3 6 but prescribes rights and liabilities for individuals. As the Nuremberg Tribunal made clear in its judgment: "It was submitted [by the defense] that international law is concerned with the actions of sovereign States, and provides no punishment for individuals, and further, that where the act in question is an act of State, those who carry it out are not personally responsible but are protected by the doctrine of the sovereignty of the State. T h a t international law imposes duties and liabilities upon individuals as well as upon States has long been recognized." 37 T h e same point of view was expressed after World War II by an American court in the war-crimes trial of the United States v. von Leeb, et al. ("The High Command Case"), in the following unambiguous terms: "It would be an utter disregard of reality and but legal shadow-boxing to say that only the state, the inanimate entity, can have guilt, and that no guilt can be attributed to its animate agents who devise and execute its policies." 38 T h e same court also stated: "It is self-evident that national policies are made by man. When men make a policy that is criminal under international law, they are criminally responsible for so doing. T h a t is the logical and inescapable conclusion." 39 T h e Supreme Court of the United States has declared: "From the very beginning of its history this court has recognized and applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals." 40 Also, "An important incident to the conduct of war is the adoption of measures by 85 Arts. 49, 50, Geneva C o n v . I, and the corresponding articles in the other three conventions. See also BrMM.L., Pt. I l l , par. 671, n. 2 (b) on the d u t y of neutral states not parties to these conventions to punish war crimes.

" H o l l a n d , op. cit., p. 133. '"Nuremberg Judgment, p. 52. 38

(1948), U.S. Military T r i b u n a l , Nuremberg,

"Ibid., p. 490. "Ex Parte Quirin,

TWC,

et al. (1942), 317 U.S. 1; 37 A.J.I.L.

X I , 508. 159.

16

The Place of Law in War

the military command not only to repel and defeat the enemy but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." 4 1 In 1921, the German Supreme Court at Leipzig in the case of the hospital ship Llandovery Castle, destroyed in World War I by a German submarine which fired on the survivors in the lifeboats, ruled that criminal international law was applicable to individuals and stated that "the rule of international law which is here involved is simple and is universally known." 42 It has been aptly stated: "The international legal order does not operate entirely and exclusively on the corporate entities of nations, but finally functions with reference to human beings of flesh and blood." « T H E P O L I T I C A L N A T U R E OF W A R It is because of the primitive nature of present-day international law and its ensuing imperfections that, tragic as it is, war is part of the human scene. In the absence of a world body whose rulings are accepted without question in all circumstances war still fulfils a function in the modern world; it is the ultimate arbiter when all other means of settling international disputes fail, whether it is termed a "police action" 44 by the United Nations, a border dispute between India and Pakistan or a plain old-fashioned war between states where action by the United Nations Security Council has been vetoed by one of its permanent members. See Article 27 (3) of the Charter. Indeed, war considered as an arbiter presupposes conflicting claims of right on either side, whereas war has also been conceived of as a means of implementing national policy by one state against another, without necessarily founding such policy on a claim of right. Von "•Ibid., 37 A.J.I.L. at pp. 159-160. See also In Re Yamashita (1946), U.S. Supreme Ct„ 327 U.S. 1; 40 A.J.I.L. 436. " 1 6 A.J.I.L. 704 at p. 721. a Keenan and Brown, Crimes against International Law, p. 123. T h e obligation to punish the individual perpetrators of international crimes is strongly emphasized in Art. 1 of the Draft Code of Offenses Against the Peace and Security of Mankind, formulated by the International Law Commission of the United Nations, as follows: "Offenses against the peace and security of mankind, as defined in this code, are crimes under international law, for which the responsible individuals shall be punished." See U.N. Gen. Ass. O f f . Recs., 9th Sess., Suppl., no. 9, A/26Q3 (1954), p. 10. " See below, p. 25.

The Place of Law in Clausewitz

War

defined war

17

thus:

"War

is n o t h i n g

but

a

continuation

of p o l i t i c a l intercourse w i t h an a d m i x t u r e of other means." p o i n t e d u p v o n Clausewitz's statement by declaring: tinuation means."

of

the

of

the i m p o r t a n t

same

policies

by

using

other

Lenin

45

" W a r is a con-

(namely,

forcible)

46

trials f o l l o w i n g W o r l d

War

II, the court g a v e the f o l l o w i n g description of the n a t u r e a n d

I n one

war-crimes

char-

acteristics of war: W e need not attempt a definition that is all inclusive and all exclusive. It is sufficient to say that war is the exerting of violence by one state or politically organized body against another. In other words, it is the implementation of a political policy by means of violence. Wars are contests by force between political units but the policy that brings about their initiation is made and the actual waging of them is done by individuals . . . T h e point we stress is that war activity is the implementation of a predetermined national policy. Likewise, an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or to a sense of the futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat . . . T h e initiation of war or an invasion is a unilateral operation. W h e n war is formally declared or the first shot is fired the initiation of the war has ended and from then on there is a waging of war between two adversaries. 47 It is true that in

1928 the T r e a t y for the R e n u n c i a t i o n

of

War,

variously k n o w n as the Paris pact, the K e l l o g g pact, or the

Kellogg-

B r i a n d pact, p u r p o r t e d to abolish war as an i n s t r u m e n t of

national

policy. 4 8

Sixty-three

themselves by tracting

nations,

including

this treaty. A c c o r d i n g

Parties

solemnly

declare, i n

all

leading

to its terms:

states,

"The

the names of

bound

High

their

Con-

respective

peoples, that they c o n d e m n recourse to w a r for the s o l u t i o n of

in-

ternational

of

na-

1);

and

controversies

tional p o l i c y "agree

that

and

renounce

it

as a n

instrument

in their relations w i t h one a n o t h e r " the settlement

of

(Article

all disputes or conflicts, of

whatever

n a t u r e or of w h a t e v e r origin they m a y be, w h i c h arise a m o n g shall never be sought e x c e p t b y pacific m e a n s " However,

the pact,

even

according

them,

(Article 2).

to its terms, d i d

not

abolish

Clausewitz, On War, p. 596. " Taracouzio, The Soviet Union and International Law, p. 314, citing Lenin, Sobranie Sochineniia (Collected Works), X V I I I , 97. 47 The High Command Case, above, L.R.T.W.C., X I I , 1, at pp. 68-69. I n T h e Brig Amy Warwick (1863), 2 Black, 635, at p. 666, the Supreme Court of the United States stated: " W a r has been well defined to be, ' T h a t state in which a nation prosecutes its right by f o r c e . ' " T h e definition was taken from Vattel, Droit des Gens, Bk. I l l , chap. i. 48 See also the Anti-War T r e a t y of Non-Aggression and Conciliation (the Saavedra Lamas treaty), signed at Rio de Janeiro, 1933, below, pp. 519-521. 46

18

The Place of Law in War

war, because without contravening its provisions war is legally permissible to its adherents in a number of situations. These are: in self-defense; by collective action under the United Nations Charter; 49 between parties to the pact and states which are not parties; and as against a party to the pact which resorts to war illegally contrary to the terms of the pact. It is noteworthy that even as the pact was coming into being, Britain as a party reserved its "freedom of action" relating to Article 1 in "certain regions of the world the welfare and integrity of which constitute a special and vital interest for our peace and safety." 60 Naturally, those states which did not adhere to the pact were not bound by its clauses. World War II demonstrated unmistakably that such pacific means as had been devised until then were ineffective in replacing war as an instrument of national policy. Even the formulation of the United Nations Charter in 1945 has not prevented the eruption of numerous wars. The list of outbreaks since 1945 is long and varied. T o mention some of the more prominent episodes: civil war in Greece with foreign assistance on both sides, conflict between India and Pakistan, the war between the Arab states and Israel, the Dutch-Indonesian war, British action in Malaya, French action in Indochina and Algeria, civil wars in China, Iran, Burma, the Philippines and Cuba, the Korean war, civil war in Hungary and Russian intervention, a further Israel-Egypt outbreak and Anglo-French conflict with Egypt. Most of these conflicts either were, or started out as, civil wars or revolts against ruling powers. The problem of war "not of an international character" is most thorny. Rules of war have been designed to apply between states, that is, sovereign entities. Civil and internal colonial wars were, until the Geneva Conventions of 1949, left almost entirely to the regulation of the national law of the states concerned. This meant in practice that rebels had no legal status—other than that of criminals. Unregulated, under these circumstances, civil wars have turned out to be the most bitter and savage kinds of armed conflicts. When, if ever, a rebel party succeeds in obtaining belligerent status, the rules of war finally come into full legal effect. This occurs in international law when the insurgents have in fact established themselves, and obtained recognition, as a belligerent community. T o qualify for recognition of this nature, such a community must first have acquired all characteristics of a state, including a responsible "Previously under the League of Nations Covenant. m Keith, ed., Speeches and Documents on International

Affairs, 1918-1937,

I, 157.

The Place of Law in War

19

government and territory. T h e responsibility of the government must be demonstrated internally by the orderliness of its administration, and externally by its willingness to accept the international obligations incumbent upon states, including observance of the rules of war. A l l the belligerent community lacks is the guarantee of permanence, which obviously depends upon the result of the conflict. Recognition as a belligerent may then be afforded by the parent state or by foreign governments, although difficulties may arise where belligerent recognition is granted by the one and not by the others or vice versa. In such cases, the recognition of belligerency is not binding on the state or states which have not granted recognition. 51 A foreign state should not grant recognition of belligerency unless its interests, or those of its nationals, are affected by the struggle. 52 Recognition of belligerency before the conditions are present which justify recognition constitutes an unwarrantable interference in the affairs of the state where the struggle is taking place and, as such, an international wrong against the parent state.53 No special form is laid down for recognition of belligerency, although this may be done by a third state by means of a formal declaration of neutrality. Where a third state grants recognition of belligerent status, it assumes the legal position of a neutral in regard to that conflict. 54 Naturally the mother state or lawful government will not be eager to grant belligerent status to rebels, because such recognition places a certain cachet of attainment on the revolt and admits the rebels to the first and lowliest rung in the community of nations. 55 For instance, other nations not involved acquire the status of neutrals, with corresponding obligations and rights. Usually the lawful government does not grant such belligerent recognition until forced by the pressure of events and the attitude of states outside the conflict. Oppenhcim, II, 200, 521-522. ^Ibid., 198; The Three Friends (1897), U.S. Supreme Ct. 166 U.S. 1; Scott, Cases, p. 830 at p. 839; United States v. The Ambrose Light (1885), 25 Fed. Rept. 408 (U.S. Dist. Ct., S.D. New York); Scott, Cases, p. 544 at p. 547 (where Lawrence, Handbook of Int. Law, is cited); Schwarzenberger, I, 367, citing Oriental Navigation Co. (1928), General Claims Commission between Mexico and the United States, dissenting opinion of Nielsen, American commissioner, 23 A.J.I.L. 435 at 440. 63 Oppenheim, II, 198; Fenwick, p. 146. For the rights and duties of neutrality, see Part VII, below. 65 See, The Three Friends, above, Scott, Cases, at p. 835, where it is stated: "And as agreeably to the principles of international law and the reason of the thing, the recognition of belligerency, while not conferring all the rights of an independent state, concedes to the government recognized the rights, and imposes upon it the obligations, of an independent state in matters relating to the war being waged, no adequate ground is perceived for holding that acts in aid of such government are not in aid of a state in the sense of the statute," i.e. the United States Neutrality Act. 111

20

The Place of Law in War

When the play of political circumstances has brought this about, the rules of war come into legal effect. T h e intermediate period is usually marked by excesses, justified by the lawful government under national law for the repression of the insurrection, and by the revolutionaries as countermeasures in reprisal. T h e question of the regulation of civil war assumes increasing importance due to the number of such wars in these days and the evident tendency to mask international war as such. Apart from the tragic nature of these conflicts, there is the inherent danger that they may overflow into widespread international war. Recognizing this, each of the four Geneva Conventions for the Protection of War Victims concluded in 1949, which are the latest in the series of Geneva Conventions, makes provision in similar terms for obligatory standards to be applied as a minimum in the case of "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." 56 These provisions will be discussed later. 57 Therefore, until the function of war is replaced by effective pacific means, until that most dangerous gap in world relations is bridged, war will remain: and if it does remain then it must be regulated by rules which command obedience—which is the purpose and function of the laws of war. T h e alternative is pure savagery. T H E U R G E N T NEED F O R A N E W C O N V E N T I O N O N T H E L A W S OF W A R For the laws of war to command respect and obedience they must be adequate for their function. It is essential that these rules should be applicable to the circumstances of modern warfare and clearly and closely defined in their application. Further, the more stringently war is regulated the less likely there will be recourse to it. In other words, the more onerous the terms upon which wars are fought, the better the prospect for peace and the pacific settlement of disputes. All this emphasizes the urgent need for a new conference on the laws of war to replace the Hague Conventions, which, opinion generally agrees, are not adequate today to deal with the revolutionary developments both in warfare itself and in matters affecting warfare which have occurred since those conventions were formulated. 58 See Art. 3 in each convention, below, p. 622. See below, pp. 621 f. Cf. Art. 19, Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, below, p. 622, n. 16. " F o r expression of such opinion, see, for example, Kunz, " T h e Chaotic Status of the Laws of War and the Urgent Necessity.for their Revision," 45 A.J.l.L. 38 f., 66

57

The

Place

of Law

in

War

21

T h e doubts a n d fears w h i c h hinder the calling of such a conference are illustrated by the views expressed in the U n i t e d International L a w C o m m i s s i o n in

Nations

1949.

T h e Commission considered whether the laws of war should be selected as a topic for codification. It was suggested that, war having been outlawed, the regulation of its conduct had ceased to be relevant. On the other hand, the opinion was expressed that, although the term "laws of war" ought to be discarded, a study of the rules governing the use of armed force—legitimate or illegitimate—might be useful. T h e punishment of war crimes, in accordance with the principles of the Charter and the judgment of the Nürnberg Tribunal, would necessitate a clear definition of those crimes and, consequently, the establishment of rules which would provide for the case where armed force was used in a criminal manner. T h e majority of the Commission declared itself opposed to the study of the problem at the present stage. It was considered that if the Commission, at the very beginning of its work, were to undertake this study, public opinion might interpret its action as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for maintaining peace.68 H o w e v e r , political reality indicates the necessity f o r a n e w f o r m u lation of the laws of w a r . A r m e d force is b e i n g used i n international relations;

the threat of a

third w o r l d w a r

has o v e r s h a d o w e d

w o r l d f o r a n u m b e r of years past and, since the I n t e r n a t i o n a l

the Law

C o m m i s s i o n expressed the foregoing opinions, the K o r e a n w a r broke out a n d once again demonstrated the pressing need f o r an authoritative restatement of such laws. If w a r comes in spite of all the reand " T h e New U.S. Army Field Manual on the Law of Land Warfare." 51 A.JJ.L. 393> 394-395; Fenwick, pp. 550-551; Oppenheim, II, 449-450; Rennell, British Military Administration . . . , pp. 343, 345; Lord Wright (chairman, U.N. War Crimes Commission), foreword, History of the U.N. War Crimes Commission . . . , p. vi; Korovin, " T h e Second World War and Int. Law," 40 A.J.I.L. 753-754; Trainin, "Questions of Guerrilla Warfare in the Law of War," 40 A.J.I.L. 552-553. German leaders in World War II used the pretext that the laws of war were obsolete and could, therefore, be disregarded. For example, "Seyss-Inquart carried out the economic administration of the Netherlands without regard for the rules of the Hague Convention, which he described as obsolete." Nuremberg Judgment, p. 155. Goebbels, the German propaganda minister, stated on April 19, 1945: "All the rules of warfare are obsolete and must be thrown overboard. All means are fair and permissible in the struggle against the terrible foe." 40 A.J.I.L. 581. See also the Nazi (German) conception of "total war" free from the restraints of international law. Nuremberg Judgment, pp. 56-57. It may be noted that, in spite of such professions, the Germans attempted to hide the evidence of their incredible crimes; see Count Three (A) of the Nuremberg Indictment, Trial of War Criminals, Documents (U.S. Dept. of State Pub. 2420, 1945), p. 43; Trial of Greiser (1946), Supreme National Tribunal of Poland, L.R.T.W.C., X I I I , 95 (Commission sent from Berlin to Chelmno Extermination Camp, Poland, "to see whether all traces had been properly removed" after the camp was closed by the Germans). 60 "U.N. Report of the International Law Commission, covering its First Session, April 12-June 9, 1949," UM. Gen. Ass. Off. Rees., 4th Sess., Suppl., no. 10, A/925 (June 24, 1949); 44 A.J.I.L., Suppl., 7.

The

22 sources of pacific settlement,

Place

of Law

in

War

then a r e g u l a t e d w a r is a lesser

evil

than a n u n r e g u l a t e d w a r . This

was

implicitly

recognized

by

the U n i t e d

Nations

A s s e m b l y at the time it created the I n t e r n a t i o n a l L a w

General

Commission,

because it then directed that b o d y to a) Formulate the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal and b) Prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in subparagraph (a) above.60 I n fact, a n e w conference o n the laws of w a r w o u l d n o t constitute a n admission of the f a i l u r e to abolish w a r . It w o u l d m e r e l y

tackle

the p r o b l e m of peace f r o m a different angle, p r o v i d i n g a n a d d i t i o n a l s a f e g u a r d f o r that d o m i n a n c e of l a w w h i c h , in the final analysis, is the o n l y w a y in w h i c h w a r c a n u l t i m a t e l y b e abolished. T h e strengthe n i n g of affirmative m e a n s to secure peace b y the d e v e l o p m e n t

of

pacific methods f o r the settlement of i n t e r n a t i o n a l disputes c a n proceed at the same time. T h i s w a s the p o i n t of v i e w of the D i p l o m a t i c C o n f e r e n c e of G e n e v a , 1949, which concluded

the f o u r n e w

Geneva

Conventions

for

the

P r o t e c t i o n of W a r V i c t i m s , a n d w h o s e F i n a l A c t w a s signed b y fiftyn i n e nations o n A u g u s t 1 2 , 1 9 4 9 . A l t h o u g h the p u r p o s e of the conference w a s to fill i n some of the g a p s in the l a w s g o v e r n i n g

war

which

the

were highlighted

by

the e x p e r i e n c e

of W o r l d

War

II,

conference stated its w i s h to affirm before all nations that, its work having been inspired solely by humanitarian aims, its earnest hope is that, in the future, Governments may never have to apply the Geneva Conventions for the Protection of War Victims; [and] that its strongest desire is that the Powers, great and small, may always reach a friendly settlement of their differences through cooperation and understanding between nations, so that peace shall reign on earth for ever."1 60 Resolution 177 (II) of November 21, 1947, see 44 A.J.I.L., Suppl., 8. Both these tasks have since been accomplished by the International Law Commission. See for (a), "Report of the International Law Commission, covering its Second Session, J u n e 5 - J u l y 20, 1950," U.N. Gen. Ass. Off. Rees., ;th Sess., Suppl., no. 12, A / 1 3 1 6 (1950), p. 11 f.; for (b), U.N. Document A/CN.4/48 of July 30, 1951, p. 31 f.; later amended in "Report of the International Law Commission, covering its Sixth Session, J u n e 3 - J u l y 28, 1954," U.N. Gen. Ass. Off. Rees., 9th Sess., Suppl., no. 9, A/2693 (1954); see 49 A.J.I.L., Suppl., 17-23. 61 Resolution 8 of the Diplomatic Conference of Geneva, 1949; see Geneva Conventions . . . (U.S. Dept. of State Pub. 3938, Gen. For. Pol. Series 34, 1950), p. 22. In the opening address of the conference, Max Petitpierre, Switzerland, who was shortly after elected president of the conference, stated: "In various quarters it has been claimed that to set up rules for warfare is to prepare for war. I need hardly say that this conception is completely mistaken. If it had been adopted by our

The Place of Law in War

23

T h e four conventions of the Conference relate to the sick, the wounded, prisoners of war, and civilian persons in time of war. T h e signatories include both members and nonmembers of the United Nations. Closely related in purpose and subject matter to these conventions is also the post-war Genocide Convention, adopted by the General Assembly of the United Nations on December 9, 1948. T h e need for the revision and modernization of the Hague Conventions is equally pressing.

EFFECT OF T H E C H A R T E R OF T H E NATIONS ON T H E

LAWS OF

D O E S THE CHARTER O U T L A W

UNITED

WAR

WAR?

T h e question arises whether the establishment of the United Nations has outlawed war and, therefore, done away with the rules of war. T h e first words of the preamble to the United Nations Charter state: "WE THE PEOPLES OF THE UNITED NATIONS DETERMINED t o s a v e

succeed-

ing generations from the scourge of war . . ." Article 1 declares: " T h e Purposes of the United Nations are: 1. T o maintain

international

peace and security . . ." Categorical directions are given by the Charter as to the manner in which disputes shall be settled between members of the United Nations. By Article 2 (3, 4), " A l l Members shall settle their interpredecessors, the Conventions of 1864, 1906 and 1929 would never have come into being. Experience has shown that, once a conflict has broken out, it is useless to attempt a reconciliation between the belligerents. It is, therefore, an imperative duty to establish Conventions in peacetime for the protection of war victims. Our recognition of this duty in no way prevents us from earnestly hoping that the nations of the world may be freed once and for all from the threat of war. . . . It is unfortunately true that the treaties of 1929 were repeatedly violated; but it must be admitted that as far as they were applied—and they were applied in no small measure—thousands of lives were saved by them. The idea of making war more humane should not be abandoned simply because it has not been possible to realize it as completely as was hoped. On the contrary, it should be pursued unceasingly in the hope that some day nations may abandon war as a means of settling differences." Final Record, IIA, 10. Cf. Jean S. Pictet, director of the International Committee of the Red Cross, who stated: "The Geneva Convention is one of the shrewdest blows ever struck at war, and the foundation of the Red Cross was nothing less than the condemnation of useless slaughter." See "The New Geneva Conventions for the Protection of War Victims," 45 A.J.I.L. 464. Further, "The Geneva Conventions start from the hypothesis that law is a primordial element of civilization. Their struggle is against war, which now threatens to annihilate entire peoples. Their aim is to safeguard respect for the human person, the fundamental rights of man and his dignity as a human being, in the hope that universal peace—the desire of all men of good will—may one day be established." Ibid., p. 475.

24

The Place of Law in War

national disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. A l l Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations." It would appear, therefore, that on the basis of the citations from the foregoing article no member of the United Nations shall have recourse to war under any circumstances. Furthermore, the injunction which is laid upon members is extended to nonmembers (irrespective of the consent of the latter) by Article 2 (6) which declares: " T h e Organization shall ensure that states which are not Members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security." Considering that the present total strength of the United Nations is eighty-two nations, 82 these are no idle words in relation to nonmembers, but can have positive significance if that overwhelming power is brought to bear. However, in spite of the firm expressions quoted from the Charter, later articles make it clear that war still has its place even under the Charter. Its use has been limited, but it can still be legally employed in a number of circumstances. T h e first instance arises under Article 42, which provides that the United Nations itself, through the Security Council, "may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security." T h i s is war, as the Korean conflict which began in the summer of 1950 clearly demonstrated. It is surely not to be argued that, because such forcible means are used at the behest of the world organization against what are branded as international outlaws, such a conflict should be conducted with no regard to the rules of war. T h a t would be a poor example on the part of the organization which is expected to set the standard of behavior for the world. 63 ® As of December 12, 1958. "Cf. T a u b e n f e l d , "International Armed Forces and the Rules of W a r , 45 A.J.I.L. 677; Stone, Legal Controls . . . , pp. 3 ! 5 - 3 l 6 - Resolution I of the intergovernmental conference which formulated the Convention on the Protection of Cultural Property in the Event of A r m e d Conflict, T h e Hague, 1954, stated: " T h e Conference expresses the hope that the competent organs of the United Nations should decide, in the event of military action being taken in implementation of the Charter, to ensure application of the provisions of the Convention by the armed forces taking part in such action"; see Final Act of the above conference, UNESCO, 1954. U.S. Law 8a provides specifically that the law of war is applicable to the exercise of armed force by the United Nations.

The Place of Law in War

25

By analogy with municipal criminal law the Korean war was initially termed a "police action";«4 that is to say an action by police against criminals. There are no niceties in such encounters in the national sphere, but it would be a serious error to treat international conflict on the same basis. There is a considerable difference between bringing to book a gang of bandits and collective action against a recalcitrant state.65 The opportunities for mischief are far greater in the latter connection, which makes it essential that every effort should be made to wage such an action according to the laws of warfare. This is for the benefit of all concerned, including the civilian population and United Nations soldiers. The uncertainty expressed in some quarters concerning the legal status of the Korean conflict was reflected in the conduct of that war which produced accusation and counteraccusation of violation of the laws of war. On the United Nations side there were charges of atrocities against prisoners of war and wounded, on the other side complaints of atrocities, bombing of the peaceful population and "bestial reprisals." 66 Cold-blooded mass murders of civilians have been alleged on both sides. Early efforts were made to secure the application of the recognized rules of war. On July 12, 1950, the secretary-general of the United Nations sent telegrams to the foreign ministers of both North and South Korea referring to the "gravely disturbing" reports of the shooting of prisoners and other inhuman acts and urging them to 64 President Truman on June 29, 1950, told his news conference that the United States was not at war, but was executing a U.N. police action. He termed the North Koreans bandits. Facts on File, X (1950), 204; New York Times, June 30, 1950, p. 1, col. g. However, on March 19, 1953, President Eisenhower told his press conference that a war, not a police action, was being fought in Korea. New York Times, March 20, 1953, p. 3, col. 4. Incidentally, the United States Federal Court at Los Angeles in the case of Weissman v. Metropolitan Life Insurance Company (1953), 112 F. Supp. 420 (U.S. Dist. Ct., S.D. Calif.); 48 A.J.I.L. 155 (see other cases there cited), held that the Korean conflict was a war. This action was a claim on an insurance policy for the death of the insured, killed while a member of the U.S. armed forces in Korea. T h e terms of the policy had excluded death while "in the military, naval or air forces of any country at war." In an earlier case, Harding v. Pennsylvania Mutual Life Insurance Co. (1952), Pennsylvania Superior Ct., 90 At. (2d) 589; 47 A.J.I.L. 153, it had been held that the Korean hostilities were neither a declared nor undeclared "war" within the terms of an insurance policy. 86 Cf. Moore, "Law and Organization," International Law . . . , p. 309, who described as a "vaulting illusion . . . that men in the mass, constituting a great nation, can be controlled with the same promptitude and effectiveness with which an individual, charged with a violation of law, can be arrested in the street and brought to justice." 86 See Royal Institute of International Affairs, Chronology of Int. Events and Documents, VI, 549, 571, 677, 768, entries of Aug. 8, and 17, Oct. 13, Nov. 29, 1950.

26

The Place of Law in War

accept the offer of the International Red Cross to cooperate with both governments in establishing measures for the application of the Geneva Conventions. 67 On July 13, 1950, it was learned that the governments of both North and South Korea had informed the United Nations Security Council that they would observe the Geneva Convention on the treatment of prisoners.68 However, in practice the position continued unsatisfactory. For instance, for a long time no lists of prisoners of war were exchanged under the Geneva Convention, so that relatives were left with the torture of uncertainty concerning the fate of their near ones. T h e civilian population of Korea suffered particularly from the manner in which the hostilities were conducted. 69 Nevertheless, by the time the armistice of July 27, 1953, had suspended hostilities in the Korean conflict, it was apparent that both sides had clearly recognized that a United Nations enforcement action, like other wars of an international nature, must be governed by the laws of war, 70 and both sides had adduced such rules in matters relating to the conduct of the conflict. In fact, as we have already stated, the legal position concerning war undertaken by the United Nations in its supernational role according to its obligations under the Charter is quite clear in international law. 71 Such conflicts are governed by the laws of war, even though the enemy is fighting an "illegal" or "unjustifiable" war. T h e alternative is anarchy. A second kind of war not illegal under the United Nations Charter could arise through the application of a veto in the Security Council under Article 27 (3) by one of the five permanent members, namely China, France, the U.S.S.R., the United Kingdom, and the United States.72 Such a veto would bar United Nations sanctions in a conflict. 73 T h e result would be a war outside the jurisdiction of the 67

Ibid.,

V I , 475, entry under relevant date.

"Ibid., V I , 467, entry under relevant date. ' " C h a r g e s and countercharges of violations of the laws of war and of war crimes during the Korean conflict were persistently m a d e b y b o t h sides t h r o u g h o u t the duration of the hostilities, and accusations of this nature relating to those hostilities were also made after the conclusion of the armistice of July 27, 1953. 70 Cf. T a u b e n f e l d , op. cit., 678-679, where the position of the U n i t e d forces in this respect is discussed. See also, Br.M.M.L., Pt. I l l , par. 7. 71

Nations

A b o v e , p p . 10 f.

However, although outside the jurisdiction of the U . N . Charter, such a war m i g h t be regarded as illegal under general international law; see below, pp. 41-42. 72

73 A r t . 27 (3) of the U . N . Charter does not permit a party to a dispute to exercise the veto in regard to decisions taken by the Security C o u n c i l for the settlem e n t of the dispute u n d e r C h a p t e r V I and A r t . 52 (3) of the Charter. I t w o u l d

The Place of Law in War

27

United Nations, regulated solely by the laws of war. In the same way, the position resulting from the application of the veto could also arise from a deadlock in the Security Council where the voting on the question of applying sanctions was even through the abstention of one or more members of the Council. O n November 3, 1950, the General Assembly passed a resolution providing for action by the Assembly when unanimity is lacking among the permanent members of the Security Council, but this resolution imposes no legal obligation on United Nations members.74 A third kind is mentioned in Article 51, which affirms "the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations." There is no doubt that nonmembers have a similar right under general international law. T h e right of self-defense under Article 51 lasts "until the Security Council has taken measures necessary to maintain international peace and security." Should no action be taken by the Security Council, for whatever reason, then once again we should have war unhindered by the United Nations. A n opinion has been expressed that, in addition to the right under Article 51, members still retain the broader right of self-defense under general international law. As for example, the right of defense against "imminent attack," whereas Article 51 applies only in the event of "armed attack." 75 If the Charter had intended to allow of so broad an interpretation it is difficult to understand why the words "if an armed attack occurs against a Member of the United Nations" were inserted. T h e Charter makes specific provision in Articles 34 and 35 for a situation where there is danger of "imminent attack," not actually launched. " T h e Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute" and "Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to appear, therefore, that a party to a dispute could not exercise the veto to prevent investigation of the dispute by the Security Council and recommendation by the latter of appropriate procedures or methods of adjustment. However, it has been pointed out that while a party to a dispute may not exercise the veto, a party to a situation which might lead to international friction or give rise to a dispute (see Arts. 34 and 35 of the Charter) may, apparently, exercise the veto. On the preliminary question whether the matter before the Security Council is a dispute or a situation it might be possible for the state involved to exercise the veto. See Goodrich and Hambro, Charter of the United Nations, pp. 224-227. 71 See below, pp. 42-43, on this resolution of the General Assembly. TCKunz, " T h e Chaotic Status . . . ," 45 A.J.I.L. 54. See also the discussion in Stone, Aggression and World Order, pp. 93-94, 98-100, 131.

28

The

Place of Law in

War

the attention of the Security Council or of the General Assembly." If in the meantime an actual attack is launched upon the member, Article 51 confers on that member the legal right of self-help until the Security Council steps in and takes control of the situation. T h e provisions of Articles 34, 35, and 51 are intended to obviate the necessity of so-called "preventive action" by a threatened member, and such a right does not exist for a member in this connection either under the Charter or independently of it. 76 A fourth kind comes under Articles 53 and 107 of the Charter. By those articles it is expressly provided that members may take individual or regional action against enemy states of W o r l d W a r II, unhindered by the Charter, provided such action is "taken or authorized as a result of that war or is "directed against renewal of aggressive policy on the part of any such state." Kelsen points out: "According to its wording, any action against ex-enemy states is permitted to any government if the action can be justified as a result of W o r l d W a r II . . . the decision of this question is left to the government which takes the action or authorizes another government to take it." 77 Articles 53 (1) and 107 refer to "measures against78 any enemy states" and "in relation to any [former enemy] state." T h a t is to say, the former enemy state is the target of the measures. W h e r e such measures are taken in relation to an enemy state, but actually against another United Nations member, as happened in the Berlin Blockade of 1948, then Articles 53 (1) and 107 do not withdraw the dispute from the jurisdiction of the Security Council, since in such case the dispute would be between members. A p a r t from the question of former enemy states, Article 53 (1) authorizes the Security Council in appropriate cases to use regional arrangements or agencies, permitted under Article 52, for enforcement action under its authority. T h i s is, of course, one method of action under Article 42. A number of regional arrangements have been entered into since the formulation of the Charter. Some examples are the Inter-American Treaty of Reciprocal Assistance, signed at R i o de Janeiro on September 2, 1947; the Western European T r e a t y , signed at Brussels, March 17, 1948; the North Atlantic Treaty, signed at Washington, A p r i l 4, 1949; and the Pacific ( A N Z U S ) Pact, signed at San Francisco, September 1, 1951. A fifth case of what is regarded as international war and yet would 79 See Kelsen, The Law of the United of Nations, pp. 165-169. " K e l s e n , Law of the U.N., p. 806. 78 Italics mine.

Nations,

p. 797; Jessup, A Modern

Law

The Place

of Law in War

29

fall outside the jurisdiction of the United Nations could be a civil war in which the rebel elements had achieved belligerent status and yet was not of a nature to justify United Nations intervention, being a matter "essentially within the domestic jurisdiction" of the state in question and not constituting a threat to international peace and security—Article 2 (7) of the United Nations Charter. 7 9

INDIVIDUAL

RESPONSIBILITY

UNDER T H E

CHARTER

FOR W A R

CRIMES

It has been alleged that the United Nations Charter establishes "only collective responsibility of states for violation of the Charter, not responsibility of individuals who in their capacity as organs of a state or in their capacity as organs of the United Nations have constituted by their own conduct the violation of the Charter. T h i s is of particular importance in respect of those violations of the Charter which have the character of an illegal use of force." Further, it is contended that for the principle of individual responsibility to apply it should have been inserted into the Charter "as a general rule applicable to the subjects and organs of all the Members of the United Nations a n d — t h r o u g h Article 2, paragraph 6 — t o all the other states of the world." 80 T h e relevant articles of the Charter reveal no reason why the United Nations may not take measures to punish individual war criminals in accordance with the general principles of international law. Article 39 states: " T h e Security Council . . . shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." Article 41 says: " T h e Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions . . ." A n d by Article 42, ". . . it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security." Included in such action is obviously the right possessed by all belligerents, to try and punish offenders against the laws of war. 8 1 T h e r e is no statement in any of these articles of the Charter limiting United Nations action to states as entities. Only Article 50 refers to a "state" " O n civil war, see also pp. 18-20, above, a n d chapter xvi, below. 80 Kelsen, Law of the U.N., p. 738. 81 Above, pp. 13 f. See also (7,5, Law 495, 49®. 5°5'. u - s - R u l e s BrM.M.L., Pt. Ill, par. 637.

346

(c), 356;

3°

The

Place of Law in War

as the object of preventive or enforcement measures, and this in an entirely different connection. It is interesting to observe, in fact, concerning the United Nations action in Korea, that soon after its commencement a North Korean officer captured by the Americans and identified as having taken part in the murder of 32 United States prisoners of war was held for trial as a war criminal. 82 W A R F A R E W I T H UNCIVILIZED PEOPLES In the past, the view has commonly been taken that the laws of warfare as laid down by international law apply only to warfare between civilized states.83 T h a t is, such laws have effect only where both parties to an international conflict understand them and are prepared to apply them. Accordingly, it has been considered that in warfare with states and independent tribes which do not understand those laws and are not prepared to apply them, the laws of warfare are not applicable, but in their place the commander of the opposing forces exercises his discretion by applying "such rules of justice and humanity as recommend themselves in the particular circumstances of the case." 84 However, when the laws and customs of war on land were formulated in the Hague Regulations, annexed to Hague Convention IV, 1907, at the Hague Conference of that year, the president of the commission which formulated them indicated that they should apply to war with less civilized peoples. 85 Indeed, if international law is true law as has been stated earlier, 86 and therefore applies throughout the 83 Chronology of Int. Events and Docs., VI, 571, entry of A u g . 17, 1950. In a report issued Oct. 28, 1953, the U.S. A r m y disclosed that in June, 1953, 34 war crimes cases arising out of the Korean conflict were ready for trial, b u t that the alleged perpetrators had to be released in the prisoner exchange following the armistice (July 27, 1953) in that conflict (United Press dispatch, Washington, O c t . 29, 1953). 88 Br.M.M.L., chap, xiv, par. 7; US. Rules 1; Fauchille, II, par. 1008, declares: "States engaged in struggles with peoples of a different civilization are p u t to the necessity of practicing a law of war appropriate to the moral state of their adversaries." 84

Br.M.M.L.,

chap, xiv, par. 7.

Scott, ed., The Proceedings of the Hague Peace Conferences, Conference of 1907, III, 84, where Beernaert, the president of the Second Commission stated: " G e n t l e men: W e have now come to the end of our tasks and I believe the Second C o m mission may rest satisfied with the result of its labors. T h e R e g u l a t i o n s on the laws and customs of war leave our hands revised, completed and improved in more than one point; the broad and generous spirit which presided over our deliberations in 1899 lives in our present labors. M a y it be possible, gentlemen, to live u p to the Regulations in all their provisions, better than ever before, even w i t h respect to the races we have been accustomed to consider as inferior to ours." 86

88

A b o v e , p. 13.

The Place of Law in War

31

length and breadth of the world, it is difficult to see why the least tutored of the world's inhabitants should be placed beyond its pale. T h e argument that compliance with the laws of war depends upon reciprocity would appear to be irrelevant. By analogy, municipal law is applicable indifferently to all inhabitants of a state irrespective of their standards of education and social coôperativeness. Further comparison may be made with civil and colonial wars, for which a minimum standard of conduct is now imposed by Article 3 in each of the four Geneva Conventions of 1949. It appears that a party to those conventions would be bound on humanitarian grounds to apply Article 3 irrespective of reciprocity on the part of the opposing party in such a conflict. 87 It will be seen later that the laws of war provide various legal means for the suppression and punishment of excesses committed by an enemy.88 Such means would be applicable against both civilized and uncivilized opponents. Certainly the widespread atrocities committed during World War II by apparently civilized states, some of which formed the subject matter of war-crimes trials, afford slight ground for any distinction between civilized and uncivilized states in the application of the laws of war. Further, considering the vast superiority of modern weapons, a more advanced state would undoubtedly not place itself at a disadvantage vis-à-vis primitive peoples in abiding by the laws of war. It cannot be argued seriously that in such wars a civilized commander could permit the shooting of prisoners of war, the maltreatment and mutilation of the enemy sick and wounded, the use of poison and the massacre of the civilian population, to quote a few examples of noncompliance with the laws of war. 89 A t any rate, there are few, if any, corners of the world today so remote that whole nations and completely independent tribes do not have some inkling of the laws of war. Incidentally, it may be observed that the two world wars showed no reluctance on the part of civilized states themselves to make use of all and any source of manpower, however primitive, against each other. In such situations, the states employing troops of this character have an obligation to afford them

See below, p. 624. See below. Part VI (The Enforcement of the Laws of War). One such means consists in reprisals. A state which institutes reprisals against uncivilized tribes or the forces of a state of backward civilization should not sink to the level of its foe by committing "acts of barbarity." Hyde, III, 1843. 89 Cf. Hyde, III, 1796, which refers to a "moral rather than a legal obligation" imposing restrictions on civilized states in such wars. 87

88

32

The

Place

of Law

in

War

instruction in the rules of civilized warfare, and ensure that they wage war according to such rules. 90 " A r t . i of Hague Conv. IV, 1907, states: " T h e Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land, annexed to the present Convention." See Fenwick, p. 556, for condemnation of Japan in regard to its employment during World War II of savage troops in the Pacific islands. Hyde, III, 1796, states that a civilized state should not employ in war troops incapable of military discipline and otherwise indisposed to heed the rules of war.

II WAR

BEGINS

D E C L A R A T I O N OF W A R T h e manner in which a state of peace is legally transformed into a state of war is the subject matter of Hague Convention III, 1907, that Relative to the Opening of Hostilities. This convention was signed, or acceded to, by twenty-seven nations, but apart from its contractual importance in binding them in their relations with each other this agreement also represents the accepted practice of nations followed since that time. T h e two most striking violations of these rules in modern times, the wars initiated without declaration in 1941 by Germany's attack on Russia on June 22, 1941, and Japan's attack on the United States at Pearl Harbor on December 7, 1941, incurred the universal condemnation of mankind and have been denounced as examples of supreme treachery. Both Germany and Japan were parties to Hague Convention III, as was the victim of the latter's aggression, the United States. It is not certain, however, whether Soviet Russia considered itself bound by Imperial Russia's signature of the convention, since it has never expressly recognized that signature and ratification. 1 Yet in spite of doubt concerning what Soviet Russia considered to be her legal contractual position in relation to the convention, Soviet Russia recognized the universal application of the rules set out by the convention by replying to the German attack with a formal declaration of war in accordance with the convention. T w o reasons are given in the preamble to the convention for the necessity of a formal declaration of war. 1See

Gsovski, Soviet Civil Law, p. 313.

S6

War Begins

i) First, "in order to ensure the maintenance of pacific relations, hostilities should not commence without previous warning." Naturally, if unheralded attacks are likely to explode from any quarter the consequent atmosphere of tension is more likely to conduce to a high level of military preparation than friendly relations free from the suspicion of wanton aggression. The existence of a clear-cut division between peace and war produced by the obligation to declare war also allows for the chance to settle international disputes in the interim period without recourse to force. A declaration of war involves a definite decision by the responsible authorities and lessens the chances of a drift into war. ii) Secondly the preamble states: "It is equally important that the existence of a state of war should be notified without delay to neutral powers." This is for the purpose of putting the neutrals on notice that from the date announced as the beginning of hostilities the state making the announcement has the rights of a belligerent and the neutral states acquire both the rights and obligations of neutrality. Notification does away with any quibbling on the side of the belligerent or the neutrals as to when their respective rights and obligations came into effect, and is also helpful to those neutral traders whose commercial activities may be radically affected as from that date. The terms of the convention follow closely the two reasons given. By Article 1, "The Contracting Powers recognize that hostilities between them must not commence without a previous and explicit warning in the form of either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war." No specific form for the declaration is laid down by the convention, but it is obvious that the gravity of such a proceeding demands that it should be presented in a form which will command credence in the state to which it is addressed. While Article 1 does not specify that the declaration or ultimatum must be in writing, it would appear from the terms of the article that they could hardly take a form other than written.2 An ultimatum consists in a peremptory warning by one state to another that unless certain stated conditions are complied with within a fixed time, a state of war will result between the parties. It demands a clear and categorical reply, and the absence of reply or a dilatory reply is taken to be equivalent to rejection.3 If the condition or conditions attached to the ultimatum are not complied with, a 2 3

See Hyde, III, 1696-1697, citing Westlake, International Fauchille, II, par. 1035.

Law, II, ad ed., p. 28.

War Begins

^

state of war results, but apart from that the convention imposes no obligation for a period of delay between notification of the declaration of war and the commencement of hostilities.4 However, since the cases in which resort to war may be made legally are now severely limited, 5 and in view of the obligation imposed by the United Nations Charter on parties to a dispute to seek first of all a solution by peaceful means (Art. 33), it is hardly possible today legally to make a sudden declaration of war and thus surprise an unprepared enemy, as was formerly the opinion. 6 By Article 2, " T h e existence of a state of war must be notified to the neutral powers7 without delay, and shall not be held to affect them until after the receipt of a notification, which may, however, be given by telegraph. Nevertheless, neutral powers may not rely on the absence of notification if it be established beyond doubt that they were in fact aware of the existence of a state of war." T h e onus of notification, therefore, lies on the belligerents, although provision is made in the second sentence for circumstances where notification is omitted. It may also be noted at this point that the rules concerning neutrality come into effect as soon as the neutral states become aware that a state of war exists between other powers, even though there has been no actual declaration of war.8 T h e necessity for a formal declaration of war has assumed particular significance in view of the modern concept of the crime of aggressive war, first formulated judicially in the judgment of the Nuremberg Tribunal under the jurisdiction conferred by Article 6 of the London charter which constituted the tribunal. Today, the very fact that a war is launched without formal declaration may furnish one of the elements of proof that such a war is a war of aggression and * Tokyo Judgment, pp. 986-989, draws "pointed attention to the defects of the Convention as framed. "It [the convention] permits of a narrow construction and tempts the unprincipled to try to comply with the obligation thus narrowly construed while at the same time ensuring that their attacks shall come as a surprise" (at pp. 988-989). See also on the same point, Hyde, III, 1697, and authorities there cited; Fauchille, II, par. 1025. 6 Above, pp. 17-18, 23 f. 6 U.S. Rules 15; Br.MM.L., chap, xiv, par. 8. 7 A state engaged as a belligerent in a war may yet be regarded as a neutral vis-à-vis a state which enters the conflict by declaring war on the allies of the first state, but not on that state itself. Fauchille, II, par. 1039. 8 See below, p. 531; also United States of America v. Pelly and Another (1899), 4 Commercial Cases, 100 (Queen's Bench, England); Evans, Leading Cases, p. 384. Castrén, The Present Law of War and Neutrality, p. 35, rejects the view that third States may fix the legal nature of an armed conflict by recognizing or not recognizing it as a state of war. Cf. Pompe, Aggressive War an International Crime, pp. 6-7, w h o also points out that "a competent collective organ of the States" may hold the conflict constitutes a war.

War Begins

38

as such a crime against peace.9 It is difficult to envisage circumstances where an innocent state waging a lawful war would be prevented from issuing a formal declaration of war in accordance with Hague Convention III. A third reason may, therefore, he added to the two given in the preamble to that convention. War must be declared in order to rebut the presumption of unlawful war. However, modern international law recognizes that a state of war may exist although there has been no official declaration to that effect. 10 All four Geneva Conventions for the Protection of War Victims, 1949, apply to a state of "undeclared war." 1 1 Further, since a state of war may exist before the declaration of war, the declaration is not necessarily conclusive for all purposes of the date when war commenced. 12 A unilateral declaration of war brings about a state of war irrespective of the attitude of the state to which it is addressed. A declaration of war is not a mere challenge, to be accepted or rejected, but denotes that a state of war exists between the states concerned. 13 Obviously, there is no necessity for such a declaration in a civil war which achieves the status of international war through recognition of the belligerency of the rebel element. 14 States at war with each other are not ipso facto at war with an ally of the opposing state. For instance, during World War II, the U.S.S.R. and Japan were for a long time not at war with each other although each was at war with allies of the other. 15 "See

Tokyo

Judgment,

pp. 985-986, although

the court

there did

not

necessary to deal with the charges based on the nondeclaration of war. Cf. berg Judgment, Chamber, Ann. 10

p. 46; In Dig.,

re Zuhlke

(1948), H o l l a n d , Spec. C t . of

at p. 1368; United Tenth

Cassation, 2d

U.S. Law

9. See also

(1813), 1 Dodson 242 (High C t . of A d m i r a l t y , G t . Brit.); Hudson,

Insurance

States of America

Co. v. Bennion

Circuit);

Insurance

Ann.

v. Pelly

and Another,

above; New

The Cases,

York

Dig.,

1946,

Case

No.

94;

Weissman

(see other cases there cited), (Korean conflict, commenced The

Life

(1946), 158 Fed. R e p t . 2d 260 (U.S. Circuit C t . of Appeals, v.

Metropolitan

Life

Co. (1953), 112 F. Supp. 420 (U.S. Dist. Ct., S.D. Calif.); 48 A.J.I.L.

declared war);

it

Nurem-

1948, Case N o . 123.

Hackworth, V I , 166-170; H y d e , III, pp. 1693-1694;

Eliza Ann

find

Fjeld

June 25,

1950, as

(1950), Prize C t . of Alexandria, E g y p t , I. L.

R.,

155 un1950,

Case N o . 108 (Israel not recognized as a state by E g y p t nevertheless has status of belligerent as regards Egypt). a

See Art. 2 in each of the four conventions, below, p. 68.

u

Société

Arbitral

Commerciale

Tribunal,

d'Oriente

Recueil

des

v. Turkey décisions

(No. 2) (1929), T u r k i s h - I t a l i a n des

Tribunaux

Arbitraux

Mixed

Mixtes,

IX

(1930), 612, 613; Hackworth, VI, 168; Schwarzenberger, I, 266-267; H y d e , III, 1695. 13

The

14

H y d e , III, 1698.

Eliza Ann,

16

C f . Re

A.B.

above.

(1945), C t . of A p p e a l

of

Athens, Greece, Ann.

Dig.,

1943-1945,

Case N o . 96, Greece not at war with H u n g a r y during W o r l d W a r I I a l t h o u g h latter state was an ally of G e r m a n y w i t h w h o m Greece was at war.

the

War Begins

39

LAWFUL AND UNLAWFUL WAR Present-day international law closely restricts the right to engage in war. T h e effects of the Paris pact of 1928 and the United Nations Charter have already been discussed. However, even wars not covered or not ruled out by these general instruments (or by particular treaties of nonaggression entered into by various states) may be ruled illegal by the general principle condemning aggressive war. Hague Convention III, that Relative to the Opening of Hostilities, was formulated at a time (1907) when to engage in war was considered an unfettered sovereign right of a state. In the absence of any specific contractual obligations it was in the discretion of any sovereign state to appeal to arms. Whether it did or not was purely a question of national expediency in its relations with other states. On the other hand, when Grotius wrote in 1625 he drew a profound distinction between just and unjust wars. In painstaking fashion he enumerated the causes of war which may be called justifiable, unjust, and doubtful. 16 Regarding those responsible for an unjust war he said: "Those persons are bound to make restitution who have brought about the war, either by the exercise of their power, or through their advice." 17 However, by the turn of the nineteenth century the doctrine of national sovereignty had done away with any legal distinction between just and unjust wars. Legally, they were on a par. 18 Moral condemnation was another matter. As one writer expresses it: "According to one opinion, war is neither a delict nor a sanction; any state that is not bound by special treaty to refrain from warring upon another state or to resort to war only under certain definite conditions may wage war against any other state on any ground, without violating general international law." 19 World War I began to reverse this trend. War had become so devastating and in its effects so all-embracing that the world community, increasingly closely-knit and cohesive, did not feel that the decision on war should remain in the unrestricted discretion of individual states. In 1919 this viewpoint found expression in the Covenant of the League of Nations, of which Article 11 reads: "Any war or threat " G r o t i u s (Kelsey trans.), Bk. II, pp. 170-185, 504-505, 546-565, 578-587. 17 Ibid., p. 719. 18 See Report of R . H. Jackson, associate justice, U.S. Supreme Ct., and representative and chief of counsel for the U.S. for the prosecution of the principal Axis war criminals, to the President of the U.S., released by the W h i t e House, June 7, 1945, Trial of War Criminals, Documents (U.S. Dept. of State Pub. 2420, 1945). P- 8 10 Kelsen, The Law of the United Nations, p. 707.

40

War Begins

of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations." T h e helm of international law was swung back towards the doctrines enunciated by Grotius. In the Treaty of Versailles, June 28, 1919, the word "aggression" was applied to the part of Germany and her allies in World War I. Article 231 of that treaty stated: " T h e Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies." T h e modern doctrine of aggressive war was beginning to take shape. T h e Treaty of Versailles incorporated the Covenant of the League of Nations. In the latter too the word "aggression" is used. Article 10 of the Covenant declares: " T h e Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League." Articles 12-17 provided various means under the League Covenant for defeating such aggression. T h e next landmark was the Paris pact of 1928, whose terms have already been considered.20 It was this treaty that the Nuremberg Tribunal relied upon so heavily in formulating its contention that the London charter, 1945, which declared aggressive war a crime was "not an arbitrary exercise of power on the part of the victorious Nations, but . . . the expression of international law existing at the time of its creation." 21 "After the signing of the Pact," said the tribunal in discussing the legal effect of the 1928 treaty, "any nation resorting to war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies, undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the Pact." 22 Later the tribunal added, " T h e construction which the Tribunal placed on the Pact of Paris [is] that resort to a war of aggression is not merely illegal, but is criminal." 23 A b o v e , chap. i. Judgment, 23 Ibid., p. 50. 23 Ibid., p. 52. 20

21Nuremberg

p. 48.

War Begins

41

Last in the great chain of multilateral treaties which determine the bounds between lawful and unlawful war is the United Nations Charter, 1945, which has as one of its specific purposes "the suppression of acts of aggression and other breaches of the peace" (Article 1). Upon the Security Council of the United Nations devolves the "primary responsibility for the maintenance of international peace and security" (Article 24) and in exercising that function the Security Council" shall determine the existence of . . . any act of aggression" (Article 39) and take the necessary steps to restore peace. Under the Charter, war is recognized to be lawful only in certain specific instances.24 Solely the just war is permitted. Such war has been aptly described in these terms: "War is in principle forbidden; it is permitted only as a reaction against an international delict and only when directed against the state responsible for this delict. Like reprisals, war has to be a sanction if it is not to be considered as a delict. This is the doctrine of bellum justum, just war." 2 5 There is little doubt that the United Nations Charter conforms to such a principle, and since that Charter has been accepted by the greatest part of the civilized world it can be stated categorically that the distinction between the lawful and the unlawful war or the just and unjust war has been completely reestablished at the present time. As Lord Wright, Chairman of the United Nations War Crimes Commission, has said: "The difference between a war of aggression and a just war is fundamental and the attempts to obscure it in comparatively recent times ought to fail and have failed." 26 A Soviet viewpoint has stressed the distinction in these terms: " A truly people's war is one for the basic interests of the people, for its rights, honor, freedom and independence. Such a war is a justifiable war, in contradistinction to an unjustifiable war, that is, a war directed to the seizure of foreign territories, to the enslavement and subjugation of peoples, to the destruction of their independence as a state." 2 7 T o sum up, a war of aggression may be defined as of today28 as a war, declared or undeclared, not permitted under the terms of the 24

Above, pp. 2 4 - 2 9 . Kelsen, op. cit., p. 707. Kelsen, in fact, bases the very nature of international law considered as true law upon the theory of bellum justum, that is, for international law to exist and give protection to the international community the employment of force must be a monopoly of the international community, w a r being forbidden in principle, and permitted only as a sanction, namely, a reaction of the international community against a delict. Kelsen, General Theory of Law and State, I, 340; Law and Peace in International Relations, p. 30. 25

26

History of the U.N. War Crimes Commission . . . , p. 16. T r a i n i n , "Questions of Guerrilla W a r f a r e in the L a w of W a r , " 40 A.J.I.L. " See also below, pp. 4 4 5 - 4 4 7 . 27

554.

42

War

Begins

United Nations Charter and, in cases not governed by the Charter, a war initiated as an instrument of national policy, 29 or in violation of international treaties, agreements, or assurances. 30 T h e essence of a war of aggression is that the resort to arms is sought by the aggressor. 31 A justifiable war, on the contrary, is essentially a shield against such aggression. T h e aggressive war is a crime, the just war is protection from the crime. T h e question naturally arises, who decides whether a war is just or not? It has been alleged that the absence of "a central impartial organ" to decide such questions "almost completely frustrates the application of the bellum justum principle." 3 2 It is true that no world criminal court is yet in existence, but human advancement has never yet waited for the perfect instrument before moving forward. Progress in most fields has been made in laborious stages, and in each phase the means most readily available have been adapted for use. T h e United Nations Charter has conferred on the Security Council the world function of determining the existence of any act of aggression and the measures of counteraction to be taken in consequence for the purpose of maintaining and restoring international peace and security (Article 39). For practical purposes, that is to say for the purpose of necessary action, therefore, the Security Council decides which war is just or unjust. Although the function of the Security Council is primarily executive, in this respect it may also be deemed to act in a quasijudicial capacity. T h e r e is a gap, however, in the web of world security which comes from the application of the veto by one of the permanent members upon action by the Security Council. T h e General Assembly of the United Nations has made an attempt to fill in this gap by what is known as the Uniting for Peace resolution. T h e Fifth Session of the 20 In the j u d g m e n t in The High Command Case (United States v. von Leeb, et al.) (1948), U.S. Military T r i b u n a l , Nuremberg, L.R.T.W.C., X I I , 1, the court stated: " W h e t h e r a war be l a w f u l , or aggressive a n d therefore u n l a w f u l under International L a w , is and can be determined only from a consideration of the factors that entered into its initiation. In the intent and purpose for w h i c h it is planned, prepared, initiated and waged is to be f o u n d its lawfulness" (p. 67). " T h e crime denounced by the law is the use of war as an instrument of national p o l i c y " (p. 70).

Art. 6 (a), N u r e m b e r g charter; Nuremberg Judgment, pp. 46-48. T h a t fact that a state is first to declare war u p o n another is not conclusive of the question as to which is the aggressor. See Tokyo Judgment, pp. 995-996, where a l t h o u g h the court f o u n d that the Netherlands was the first to declare war on Japan (December 8, 1941) and Japan did not declare war on the Netherlands until January 11, 1942, Japan was in fact the aggressor in that war, and that the Netherlands declared war in self-defense. 80 S1

" Kelsen, Law of the UJN., p. 708.

43

War Begins

General Assembly on November 3, 1950, resolved that where the Security Council fails to exercise its primary responsibility in such cases, "the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to members for collective measures, including in the case of a breach of the peace or acts of aggression the use of armed force where necessary, to maintain or restore international peace and security." A judgment of unjust war by the General Assembly in such cases would, however, not be binding, as such recommendations by the Assembly do not create legal obligations on the part of the members to carry them out. T h e individual members remain free to accept or reject such recommendations.33 It is provided in the Charter that the Security Council should take into consideration that disputes which are termed "legal" in nature "should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court" (Article 36). A "legal dispute" is one which can be settled purely on applicable legal considerations, but this would not refer to international disputes of a mixed legal and political nature or to one solely political in character. T h e latter would remain for the consideration of the Security Council. T h e International Court of Justice is not a criminal court and has, therefore, no power to award penal sentences, but in its civil jurisdiction as between states (and only states may be parties in cases before the court) 34 it can rule in legal disputes concerning "the existence of any fact which, if established, would constitute a breach of international obligation, [and] the nature or extent of the reparation to be made for the breach of an international obligation." 35 However, the court can act only when the parties agree to accept its jurisdiction. A state not bound, or unwilling, to submit to the competence of the court would remain outside its jurisdiction. And the court has no power to deal with individuals. In the absence of a permanent international criminal tribunal there is no reason why the United Nations, besides carrying out its executive function of safeguarding the peace, should not create ad hoc criminal tribunals of the type of the Nuremberg Tribunal to pass judicially upon states and individuals responsible for aggressive war. 36 33

Law

T u c k e r , " T h e Interpretation of W a r under Present International L a w , " Int. Quarterly 4 (1951), pp. 33-34; Stone, Aggression and World Order, p. 153.

Art. 34 (1) of the statute of the International C o u r t of Justice. *lbid., A r t . 36 (2C, d).

34

38

See a b o v e , p p .

14-15.

44

War

Begins

S u c h bodies w o u l d be as central and impartial as anything that m i g h t be created today.

TREATMENT

OF RESIDENT

ENEMY

ALIENS

T h e development of the conception of total w a r f a r e since the outbreak of W o r l d W a r I, a n d the resulting mobilization in w a r t i m e of all resources and energies of each belligerent state f o r the purposes of the conflict has served to give general force to a v i e w p o i n t previously regarded as controversial that every subject of one belligerent becomes an enemy

of every subject of

an opposing

belligerent. 3 7

B e f o r e 1 9 1 4 the tendency h a d been to regard w a r as chiefly a matter for, a n d confined to, the armed forces of the belligerents, as contrasted w i t h the populations at large of those states. I t was not the practice, therefore, to restrict the liberty of enemy subjects f o u n d on the territory of the other belligerent except for good reason. 3 8 Of course, although all individuals of a belligerent nation

may

become the enemies of those of the hostile state, the general distinc-

37 See Oppenheim, II, 169, which discusses the conflict that existed between the views of Continental and Anglo-American writers on this subject, the latter favoring the view that the private nationals of the opposing belligerents became enemies. However, it may be noted that in various Anglo-American court decisions, such authorities as Vattel, Grotius, and Burlamaqui are cited in support of the views laid down; Hyde, III, p. 1699 f.; BrM.M.L., chap, xiv, par. 1 1 ; The Julia (1814), 8 Cranch 181, 194, per Story J.; The Rapid (1814), 8 Cranch 155 (U.S. Supreme Ct.); Fenwick, Cases, at pp. 691, 692; Griswold v. Waddington (1819), 16 Johnson 438 at pp. 446-449 (Ct. of Errors, New York), per Chancellor Kent, re AngloAmerican War of 1812, citing Vattel (Bk. 3, chap, v, sec. 70), Grotius and Burlamaqui in support (at p. 447); Janson v. Driefontein Consolidated Mines Ltd. (1902), A.C. 484 (House of Lords, Gt. Brit.); Evans, Leading Cases, at p. 468, per Lord Halsbury, citing Vattel, loc. cit.; Daimler Company Ltd. v. Continental Tyre and Rubber Co., Ltd. (1916), 2 A.C. 307 at p. 328 (House of Lords, Gt. Brit.), per Lord Shaw of Dunfermline; Evans, Leading Cases, p. 473; Société Commerciale d'Oriente v. Turkey (No. 2), above, at pp. 613-614, where it was stated as a fundamental rule in international law that a declaration of war automatically brings about a state of war and makes the nationals of the belligerent countries enemies of each other. See also U.S. Law 25.

T h e state of war between the belligerent states does not automatically extend to their protectorates, although it would involve their colonies. See Schwarzenberger, I, 267; Oppenheim, II, 7th. ed., 238-239; Wheaton, I, 82. As for trust territories held under the provisions of the United Nations Charter, it would appear, according to Art. 84 of the Charter, that if the administering authority engages in an enforcement action on behalf of the United Nations that the trust territory would be involved in the war, but not otherwise. See Oppenheim, pp. 241-244. See also below, pp. 575-577, for further discussion of enemy character. 38 See U.S. Rules 19-21, where this principle is still maintained; also Hyde, III. 1722-1725.

War Begins

45

tion between the armed forces of a belligerent and those of its citizens w h o d o n o t take u p arms remains. T h e definition of those w h o constitute the armed forces w i l l be discussed in chapter iii; nationals w h o d o not come w i t h i n its scope have not the right to engage in the actual fighting, namely to k i l l and w o u n d enemies, nor, o n the other h a n d , may they be intentionally killed or w o u n d e d by the enemy. T h e experiences of W o r l d W a r II, in w h i c h m a n y of the civilian p o p u l a t i o n s suffered particularly severely, led to the f o r m u l a t i o n of the G e n e v a C o n v e n t i o n R e l a t i v e to the Protection of C i v i l i a n Persons in T i m e of W a r (Geneva C o n v e n t i o n IV) w h i c h was signed on A u g u s t 12, 1949, by sixty states. T h i s convention is n o w in force, a majority of the signatories have already ratified it, and the rules it contains in effect express the principles of international law as they now exist a n d accord w i t h those set o u t in the L o n d o n charter (i.e., the C h a r t e r of the International Military T r i b u n a l ) , 1945, the N u remberg J u d g m e n t , and the succeeding trials of the w a r criminals of W o r l d W a r II. U n d e r the general provisions of the convention, enemy aliens w h o find themselves in the hands of a hostile power, a n d even neutral aliens in belligerent hands where the neutral State has n o t n o r m a l d i p l o m a t i c representation i n the belligerent state, acquire the status of "protected persons," provided b o t h the states concerned have accepted the convention (Article 4). Furthermore, the c o n v e n t i o n applies w h e t h e r the state of w a r is declared or undeclared, a n d even if a state of w a r is not recognized by one of the parties (Article 2). T h e position of "aliens in the territory of a party to the conflict" is regulated by Section II of the convention. Protected persons in the territory of a belligerent have the followi n g rights: i) A l l those w h o desire to leave enemy territory at the o u t b r e a k of or d u r i n g the conflict shall be entitled to d o so, unless their departure is contrary to the national interests of the enemy state. 39 A p p l i cations to leave must b e dealt w i t h in accordance w i t h regularly "E.g., where states (such as the U.S.) have large numbers of resident aliens whose mass departure would cause considerable difficulties to that state; or the departure of y o u n g persons eligible for service in enemy forces. Final Record, I I A , 653-654. T h e persons and property of diplomatic personnel of a belligerent accredited to the enemy state must be protected by the latter after the outbreak of war and their departure safeguarded and facilitated when possible. T h e i r departure may be delayed by the enemy state until it is assured that its own diplomatic representatives accredited to the enemy are being allowed to leave. H y d e , II, 1250-1251.

War Begins

46

established procedures 40 and as rapidly as possible. Persons permitted to leave may take with them the necessary funds for their journey and a reasonable amount of their effects and articles of personal use. If refused permission to leave, the protected person is entitled to have the refusal reconsidered as soon as possible by an appropriate court or administrative board 4 1 of the detaining power. T h e protecting power (i.e., neutral state which has assumed the duty of safeguarding the interests of a belligerent in the territory of its opponent) is entitled to be furnished with the reasons for any refusals, unless reasons of security prevent it, or the persons concerned object, and also, as expeditiously as possible, with the names of all persons denied permission (Article 35). ii) Departures permitted must be carried out in satisfactory conditions as regards safety, hygiene, sanitation, and food. T h e states concerned may make special agreements relating to the practical details of such movements, and also concerning the exchange and repatriation of their nationals, although such special agreements shall not adversely affect the protected persons nor restrict the rights which this convention confers on them.42 All costs of the departures from the point of exit in the detaining power's territory are borne by the country of destination, or, in the case of accommodation in a neutral country, by the power whose nationals are benefited (Article 36). iii) Those confined pending proceedings or serving a sentence involving loss of liberty must be humanely treated during confinement. When released, they may ask to leave the territory, as described above (Article 37).43 iv) T h e situation of protected persons while in enemy hands shall 40

" W h a t really matters is that each case should be impartially considered, or re-

considered,

by

an

authority

comprising

several

persons,

and

not

merely

by

a

police official; whether such a body is part of the administration or the judiciary is of comparatively minor importance." Final

Record,

I I A , 823, R e p o r t of

mittee III. Such a body will consist of "a group of several persons which cases by a majority." Loc.

Comdecides

cit.

41

Loc.

cit.

42

Art. 7.

43

" T h e main idea underlying this Article was to prevent the national hatred of

aliens, which always appears at the beginning of a war, f r o m leading the prison authorities to subject detained enemy aliens to u n d u l y severe treatment."

Certain

forms of partial liberties, as bail or release on parole provided by the legislation of

countries

thorities

of

such the

as

the

United

belligerent

States,

power,

in

may

order

however to

enemy aliens in time of war. "It is [not] compulsory to

the

same

conditions

as

those

prevailing

be

provide

before

canceled

for

the

by

the

internment

to subject detained the

outbreak

of

auof

persons

hostilities;

certain liberal measures can be cancelled; the only principle w h i c h must be adhered to is that prisoners must

be humanely

inspired by the passions of war." Final Report of C o m m i t t e e III.

treated, Record,

to

measures

I I A , 655-656, 823-824,

and

not

subjected

including

War Begins

47

continue to be regulated, in principle, by the provisions concerning aliens in time of peace. They are entitled, in all circumstances, to respect for their persons, honor, family rights, religious convictions and practices, manners and customs. They must be humanely treated at all times, and especially protected against all acts or threats of violence, insults, and public curiosity. Women must be especially protected against any attack on their honor, in particular rape, enforced prostitution, or any form of indecent assault. Apart from special provisions relating to health, age, and sex, all protected persons must be treated with the same consideration, without any adverse distinction based, in particular, on race, religion, or political opinion. They are entitled in any case to the following rights: a) T o receive individual or collective relief that may be sent to them. b) If their health so requires, receive medical attention and hospital treatment to the same extent as the nationals of the enemy state. c) T o practice their religion and receive spiritual assistance from ministers of their faith. d) If residing in an area particularly exposed to the dangers of war, to be authorized to move from that area to the same extent as the nationals of the enemy state. e) Children under fifteen years, pregnant women, and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the enemy state (Articles 27, 38).

Article 23 (h) of the Hague Regulations, 1907, provides that it is particularly forbidden to declare abolished, suspended, or inadmissible the right of the subjects of the hostile party to institute legal proceedings. While some conflict of opinion has arisen between Anglo-American and Continental jurists concerning the interpretation of this provision, the former contending that it applied only to the inhabitants of occupied enemy territory, 44 even before Geneva Convention IV, 1949, the general practice admitted the right of a resident enemy alien to institute legal proceedings. 45 Certainly, if sued, an enemy alien had

" S e e Higgins, The Hague Peace Conferences, pp. 263-265; Hackworth, VI, 364365; Fauchille, II, pars. 1065, 1065 (1). "See, for example, Posselt v. D'Espard (1917), 87 N.J. Eq. 571 (Ct. of Chancery, New Jersey, U.S.A.); Fenwick, Cases, p. 685; Porter v. Freudenberg (1915), 1 K.B. 857 (Ct. of Appeal, Gt. Brit.); Fenwick, Cases, 682; Scott, Cases, at p. 571; Hackworth, VI, 367-382; Ex parte Kumezo Kawato (1942), 317 U.S. 6g (U.S. Supreme Ct.); Ann. Dig., 1941-1942, Case No. 145; In re Mary, Duchess of Sutherland, deceased; Bechoff and Co. v. Bubna (1915), 31 T . L . R . 248; Ibid., at 394 (C.A.); (1921) 65 S.J. 513 (English case where it was held that a person of enemy nationality resident in

48

War

Begins

46

a right to defend himself. T h e rights of an interned enemy alien in reference to legal proceedings to which he is a party in any court are set out in Article 1 1 5 of Geneva Convention IV, X949. 47 Reference to the property of protected persons was deliberately omitted from Article 38 of Geneva Convention I V , 1949, as a complex subject not coming within the terms of reference of the conference. 48 I n general, the private property of enemy aliens found within the territory of a belligerent must be respected and may not be confiscated, 49 alneutral country may sue in English courts since he was not carrying on business or residing in the enemy state); Cf. Spielmann v. Ministère Public and Barbier (1940), Tribunal Civil de la Seine (Judge in Chambers), France, Ann. Dig., 19191942 (Supp. Vol.), Case No. 140; Von Petersdorff v. Insurance Co. of North America (1944), 46 N.Y.S.id 651; 183 Misc. 907; Ann. Dig., 1943-1945, Case No. 111 (case in the City Court of New York, where it was held that an enemy alien under an order of deportation from the U.S., which made him a temporary, but not a transient, resident there, may sue); Lederer v. Kahn (1943), 39 N.Y.S.2d 696; 170 Misc. 586 (New York Supreme Ct.); Ann. Dig., 1943-1945, Case No. 112 (Haitian national in enemy occupied territory and therefore "technically an enemy alien" permitted to sue on condition that anything recovered by him in the judgment be "controlled by impoundment with an appropriate governmental agency"). Contrast, V/O Sovfracht v. N.V. Gebr. Van Udens Scheepvaart en Agentuur Maatschappij (1943), A.C. 203 (Nonenemy in enemy or enemy-occupied territory is an alien enemy at English common law so as to become incapable of suing as a plaintiff in an English court); Government of France v. Isbrandtsen-Moller Co., Inc. (1943), 48 F. Supp. 631 (U.S. Dist. Ct., S.D.N.Y.); Ann. Dig., 1943-1945, Case No. 113 (The government of a state occupied by the enemy is an "enemy alien" precluded from suing). The general principle expressed in numerous cases is that an enemy alien is entitled to maintain an action in the courts provided the enemy's ability to wage war is not thereby strengthened. See also McNair, Legal Effects of War, 2d ed., pp. 49-50; Hyde, III, 1714. In two Dutch cases, In re Zuhlke, above, and In re Rauter (1949), Ct. of Cassation (ist Chamber), cited in a note to Case No. 174, Ann. Dig., 1948, it was held that Art. 23 (h) of the Hague Regulations only related to rights of action in the sphere of private law, not to a constitutional guarantee or a principle of the criminal code. " See Porter v. Freudenberg, above, Hackworth, VI, 372 f. The right to defend includes the right to appeal. Ibid., Scott, Cases, at p. 574; Hackworth, VI, at pp. 377-379; Buxbaum, et al. v. Assicurazioni Generali (1942), 33 N.Y.S.2d 496; 34 N.Y.S.2d 480 (Supreme Ct. of New York); 36 N.Y.S.2d 191 (264 App. Div. 855) (Appellate Division, same court); Ann. Dig., 1941-1942, Case No. 155; In Telkes v. Hungarian National Museum (No. 11) (1942), 38 N.Y.S.2d 419 (265 App. Div. 192) (Appellate Div., N.Y. Supreme Ct.); Ann. Dig. 1941-1942, Case No. 169, it was held, in an action against an agency of an enemy State for moneys due under a contract of employment, that if such an agency exercised a governmental function the suit was not maintainable, by reason of the immunity from suit of a foreign Sovereign. "Below, pp. 185-186. For the rights of an internee subjected to criminal proceedings, see below, p. 51. 48 Final Record, IIA, 740. " Cf. Art. 23 (g), Hague Regulations, 1907, below, p. 278; see also Hyde, III, 1733-1740. So far as public property of an enemy within the territory of a belligerent is concerned, it would appear that a belligerent may confiscate such property, subject to certain exceptions such as diplomatic archives and property,

War Begins

49

though it is recognized that such property may be subjected to control during hostilities. Included in the description of private property is both tangible property and property of an intangible nature, such as debts owed by the subjects of the belligerent state to enemy aliens, as well as public debts owed by that state itself to enemy subjects.60 Article 46 (2), provides for the cancellation in accordance with the law of the detaining power of such restrictive measures affecting the property of protected persons, as soon as possible after the close of hostilities. 51 Where private enemy property is brought into the territory of a belligerent in time of war, it may not, as a rule, be confiscated.52 Where it is necessary or expedient as a result of the war for the state to take control of the private property of enemy nationals, the AngloAmerican practice of the two world wars has been to vest control and powers of dealing with the property in a custodian of such property. 53 This is a government department specially created to exercise such functions and is not to be confused with the custodian of enemy property in occupied enemy territory, a branch of military-government administration which is discussed later. v) Those who, as a result of the war, have lost their gainful employment, must be granted the opportunity to find paid employment. T h a t opportunity must be equal to that enjoyed by the enemy nationals, subject to security considerations and the provisions of paragraph vi below. Where methods of control are applied which result in the protected person being unable to support himself, especially if he is prevented for reasons of security 54 from finding paid employment on reasonable conditions, the enemy state must ensure the support of him and his dependents. They may also receive allowances from their home country, the protecting power, or relief societies (Article 39). vi) They may be compelled to work only to the same extent as the enemy nationals. Enemy aliens 55 cannot be compelled to do work works of art, treasures of historical and literary value, or a public debt owed by the belligerent state to the enemy state, although payment of principal and interest on such debt during the conflict would obviously be suspended. Hyde, III, 1732. M See Fauchille, II, pars. 1057, 1058. 61 See Art. 46 and comments, below, pp. 614-615. 52 Oppenheim, II, 315. B I n Great Britain called the Custodian of Enemy Property; in the U.S., the Alien Property Custodian. " E.g., the prohibition of employment of aliens in certain industries. Final Record, IIA, 825, Report of Committee III. K Neutral aliens are on the same footing as nationals of the belligerent in whose territory they are; this includes work in war industries. T h e Soviet delegation objected this was unjust and contrary to international law. Final Record, IIA,. 825, Report of Committee III.

50

War Begins 56

directly related to the conduct of military operations, and their compulsory work can only be that which is normally necessary to ensure the feeding, sheltering, clothing, transportation, and health of human beings. Protected persons compelled to work must have the benefit of the same working conditions and safeguards as the enemy nationals, particularly as regards wages, hours of labor, clothing, equipment, previous training, and compensation for occupational accidents and diseases. Where these rights are infringed, the protected persons shall be allowed to complain to the protecting powers and relief societies such as the International Committee of the Red Cross and the enemy national Red Cross Society (Article 40). vii) While the foregoing provisions have particular relation to the position of aliens who find themselves in the territory of a belligerent during a conflict, such protected persons also benefit by other provisions of the convention relating to protected persons in general, which will be discussed later.57 Protected persons in the territory of a belligerent are subject to the following measures of control: i) The enemy state may take such measures of control and security58 in regard to them as may be necessary as a result of the war. T o this extent the principle that peacetime provisions concerning aliens shall continue to apply to them is modified. However, no measure of control more severe than assigned residence or internment may be applied. If protected persons are required to leave their usual places of residence for assigned residence elsewhere, and as a result they are unable to support themselves, the detaining power must ensure their support and that of their dependents, and in regard to them shall be guided as closely as possible by the standards of welfare set down for internees in the convention59 (Articles 27, 41). Belligerents are, of course, entitled in the interests of security to expel aliens from such places as seaports, fortresses, and defended areas where special precautions are necessary, and from the actual or expected theaters of hostilities.60 ii) Internment and assigned residence may be ordered only if the security of the detaining power makes it absolutely necessary. If any 66

For a discussion of the meaning o£ this phrase, see below, pp. 2 7 1 - 2 7 2 . See in particular pp. 1 6 8 - 1 7 1 , below. T h e terms are synonymous. Final Record, IIA, 825. Note also the provisions of Art. 5, pars. 1, 3, below, pp. 158-159. 68 See below, pp. 171 f. BrMM.L., chap, xiv, par. 15; U.S. Rules 21; Cf. Art. 49, Geneva Conv. IV, 1949, dealing with occupied territories. 67

68

War Begins

51

person, acting through the protecting power, voluntarily demands internment, and his situation renders this step necessary, he must be interned (Article 42). iii) Those interned or placed in assigned residence are entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the detaining power. If the court or board does not release them, it must periodically, at least twice yearly, reconsider their cases as favorably as possible. 61 T h e detaining power must (unless the individual concerned objects) give to the protecting power as rapidly as possible the names of the internees, those subjected to assigned residence, and those released from either condition. Similarly, the decisions of the courts or boards must be notified to the protecting power (Article 43). iv) In applying the measures of control, the detaining power shall not treat refugees as enemy aliens exclusively on the basis of their de jure nationality, when in fact they do not enjoy the protection of any government (Article 44). This refers to such cases as the German refugees from Hitler Germany, who, though nominally of German nationality and therefore enemy aliens in the Allied countries, were in fact persecuted and stripped of protection by the German government. Under this convention the true status of such refugees will be considered rather than the nominal status.62 Where criminal proceedings are instituted against internees who are in the national territory of the detaining power, the provisions of Articles 71-76 of the present convention shall apply, by analogy (Article 126).63 Transfer of protected persons to another power (Article 45): i) They may be transferred by the detaining power only to a power which is a party to this convention, and which is willing and able, to the satisfaction of the detaining power, to apply this convention. After such transfer, responsibility for the application of the convention rests on the accepting power, while the protected persons are in its custody. It must be noted, however, that the Soviet Union and a number of associated states have objected to the freeing of responsi61 T h a t is, periodical reexamination "takes place automatically as soon as the interested person has applied once, without success, to the appeal authority." Final Record, IIA, 826, Report of Committee III. 02 Final Record, IIA, 826, Report of Committee III. "It sometimes occurs that there are refugees in a country A, whose nationality B is a result of their registration papers, although in fact they may no longer have any ties in that country, either because it has disowned them or because they themselves no longer wish to have any connection with it." Loc. cit. 63 For Art. 126, see also below, p. 189. Arts. 71 to 76 relate to the trial and detention of protected persons in occupied territory, see below, pp. 251-253.

52

War Begins

bility of the detaining power upon such a transfer. They have entered reservations to this effect to this article. 64 ii) If the accepting power fails to carry out the provisions of this convention in any important respect, the transferring power, upon being so notified by the protecting power, must take effective measures to correct the situation or request the return of the protected persons. Such request must be complied with. iii) In no circumstances must a protected person be transferred to a country where he may have reason to fear persecution for his political opinions or religious beliefs. iv) Protected persons must not be transferred to a power which is not a party to this convention. This provision, however, does not prevent their repatriation, or their return to their country of residence after the cessation of hostilities. v) T h e provisions in paragraphs i-iv do not constitute an obstacle to the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offenses against ordinary criminal law. vi) Deportation, that is to say expulsion, of protected persons is placed on the same footing as transfer of protected persons.65 This is to prevent transfers from taking place under the guise of "deportations." 66 T h e effect of the close of hostilities on the position of protected persons in the territory of a belligerent is laid down by Article 46, which is discussed in the chapter on termination of war. 67 64 See Geneva Conventions . . . (U.S. Dept. of State Pub. 3938, Gen. For. Pol. Ser. 34, 1950), p. 253, for reservation by U.S.S.R. " Final Record, IIA, 827, Report of Committee III. "Ibid., IIA, 809. 67 Below, pp. 614-615.

Ill THE

ARMED

FORCES

BELLIGERENTS AND

NONBELLIGERENTS

T h e population of a belligerent state is divided into two broad classes, the armed forces and those who are not members of the armed forces. In the latter category is usually included the greater part of the general population. Only members of the armed forces have the right to engage in the actual fighting, that is, to kill, wound, or otherwise disable members of the opposing armed forces. Distinct duties, rights, and disabilities attach to each of the two classes, and it is a serious offense, in some cases punishable by death, 1 for a person who does not belong to the armed forces unlawfully to assume the quality of a combatant. 2 With the development of total war, the distinction between members of the armed forces and the general noncombatant population in a nation at war has tended to become obscured. In total war practically the whole population is engaged in some way or other in furthering the war effort; and with the intensification of air warfare and exposure to such weapons as atomic bombs, guided missiles, and the like, the noncombatant element in the state is subjected to many of the risks of death and injury to which the armed forces are liable. Symptomatic of the engagement of the whole population in war, World War II showed a significant rise in the importance of guerrilla warfare. Some nations, overrun and occupied by the Axis Powers, were only able to continue the war by the use of guerrillas 3 or resistance ' O n penalties for war crimes, see below, p. 422. See below, p. 466. ' T h e terms "guerrilla" or "partisan" have been used with varying connotations and cannot be described as terms of strict definition. Usually they connote irregular troops, often without uniforms and sometimes acting on their own authority and unrestricted initiative, who operate in small and detached bands behind 2

54

The

Armed

Forces

movements. Even a state such as the U.S.S.R., which still had its regular armies in the field, placed considerable reliance on its guerrilla elements which operated in the occupied parts of its territory. T h e Soviet Union in W o r l d W a r I I regarded its guerrilla forces as an integral part of its armed forces, 4 and one of its leading international jurists has claimed that "popular guerrilla warfare in the rear of an aggressor" is under the protection of international law. 5 He distinguishes, however, between guerrillas engaged in a " j u s t " war and those furthering an "unjust" aggressive war, declaring the latter are not protected. 6 T h e Germans and Japanese took a contrary view and denied that international law protected guerrillas. 7 T h e i r common practice was to shoot summarily captured guerrillas. Hitler's " C o m m a n d o " order of October 18, 1942, even "denied to Allied soldiers dropped for the purpose of committing sabotage or organising resistance in territory under German occupation the status of combatants and they [the Germans] refused to admit that the wearing of uniform made any difference." 8 the enemy's lines and within territory occupied by him. They engage in small harassing actions or skirmishes, avoiding open battle, and such warfare is known as "guerrilla warfare." See also Hyde, III, 1797. 4 Trainin, "Questions of Guerrilla Warfare in the Law of War," 40 A.J.I.L. 534. 6 Ibid., p. 561. 'Ibid., p. 562. * Ibid., p. 554; and see Nurick and Barrett, "Legality of Guerrilla Forces under the Laws of War," 40 A.J.I.L. 581. 8 Spaight, Air Power and War Rights, p. 314. In June, 1944, the German High Command excepted from the order troops in uniform in an immediate combat area, as far back as Corps Command reserves. For the full terms of the "Fuhrerbefehl" of October 18, 1942, see The Falkenhorst Trial (Trial of von Falkenhorst) (1946), Brit. Mil. Ct., Brunswick, Germany, WCT Series, VI, 250-255. It may be noted that in the case of Smulders and Piccinati v. Société Anonyme "La Royale Belge" (1943), Civil Ct. of Liège, Belgium, Ann. Dig., 1943-1947, Case No. 102, the court held in an action on a life insurance policy: "In an occupied country where partisan resistance has never actually ceased the attacking of officers in the uniform of the army of occupation must, in the absence of proof of an attempt to steal on the part of the aggressors, be regarded as an act of war not covered by the policy." It, therefore, would appear that although the partisans may not qualify as lawful belligerents, their actions may yet be acts of war. Cf. Cie D'Assur. La Nationale v. Vve. Cabanel (1946), Ct. of Appeal of Montpellier, France, Ann. Dig., 1946, Case No. 95 (Execution by the French resistance group, French Forces of the Interior, held act of war); Peeterbroek v. Assurances Générales de Paris (1946), Tribunal Civil de Huy, Belgium, Ann. Dig. 1946, Case No. 98; Van Hoeve de Feyter v. Fire Insurance Company of 1859 Ltd. (1947), Dist. Ct., Dordrecht, Holland, Ann. Dig., 1947, Case No. 81; Contrast, X v. Cie d'Assur. Z (1945), Tribunal Civil de Montelimar, France, Ann. Dig., 1946, Case No. 96; Cie Française pour l'Industrie v. Cie d'Assurance Le Phénix et L'Urbaine (1946), Trib. de Commerce de la Seine, France, and Compagnie d'Assurance La Paix v. Mathelin et Société des Transports d'Énergie du Centre (1945), Ct. of Appeal of Lyons, France, Ann. Dig., 1945, Case No. 97, which held acts of unrecognized combatants not "acts of war."

The Armed Forces

55

T h e question arises where to draw the line between the armed forces and the general noncombatant population in these days of the nation in arms. If any and every citizen capable of bearing arms is entitled to use them then the distinction between the soldier and the remainder of the population disappears. T h e result could only expose the civilian element, regardless of sex, to massacre. T h e enemy soldier, unable to distinguish his foe, aware that any man, woman, boy, or girl in civilian clothes might produce at any moment a concealed weapon to be used against him, would inevitably be disposed to treat soldier and civilian alike, indiscriminately. It is essential for the conduct of civilized warfare that a firm line be drawn between the armed forces and the rest of the population, so that the enemy soldier will know who can kill and wound him and therefore be subject to the like treatment; and which elements of the population have the rights and obligations of civilians, that is, not to be intentionally killed or wounded and, therefore, not to kill and wound. 9 LAWFUL BELLIGERENTS A line of demarcation between lawful and unlawful belligerents was drawn by Articles x, 2 and 3 of the Hague Regulations, 1907, and these provisions have now been supplemented by Article 4 of Geneva Convention III, 1949,10 Articles 13 and 14 of Geneva Convention I, 1949, 11 and Articles 13 and 16 of Geneva Convention II, X949.12 Together, these provisions now constitute the law on this subject. T h e Hague Regulations were annexed to Hague Convention IV, 1907, and the preamble to that convention stated clearly 13 that the categories of belligerents established by the regulations, especially the provisions of Articles 1 and 2, were not meant to be all-exclusive. "Unforeseen cases" which it contemplated might arise did in fact arise in " T h e principle embodied in this paragraph has been termed " t h e principle most f u n d a m e n t a l in character" of the modern rules of warfare. Moore, International Law and Some Current Illusions, p. 200. It is not believed that civilians giving w a r n i n g of the approach of enemy land forces, vessels or aircraft, e.g., "airspotters," by so doing compromise their civilian status. H y d e , III, 1800-1801. 10

C o n v e n t i o n Relative to the T r e a t m e n t of Prisoners of W a r .

Convention for the Amelioration of the Condition of the W o u n d e d in A r m e d Forces in the Field. 11

and Sick

" C o n v e n t i o n for the Amelioration of the Condition of W o u n d e d , Sick and Shipwrecked Members of A r m e d Forces at Sea. 13 A b o v e , p. 6. T h e preamble continued: " T h e y [the H i g h Contracting Parties] declare that it is in this sense especially that Articles 1 and 2 of the Regulations adopted must be understood."

The Armed

56

Forces

World War II, and were dealt with by the Axis powers in the arbitrary fashion which the preamble foresightedly condemned. As a result, Geneva Conventions I, II, and III, 1949, took pains to regulate the status of such unclassified belligerents. They did this by recognizing that specified new categories, as well as the old ones set out in the Hague Regulations, were entitled to the basic right of lawful combatants, namely to be treated as prisoners of war on capture by the enemy. In this rather indirect manner, the new categories have been recognized as lawful belligerents. T h e cited three Geneva conventions of 1949, part of the set of four 14 which were signed at the same time, bear the general title of Geneva Conventions for the Protection of War Victims. All four are now in force, a majority of the signatories have already ratified them, and the rules they contain set out the present-day norms of international law on the matters to which they relate. Between them, the Hague Regulations, 1907, and Geneva Conventions I, II and III, 1949, establish three main classes of recognized belligerents to which the laws, rights and duties of war apply (Article 1, Hague Regulations), and who become prisoners of war when they fall into the power of the enemy (Article 4A, Geneva Convention III, 1949; Articles 13 and 14, Geneva Convention I, 1949; Articles 13 and 16, Geneva Convention II, 1949). Each of these categories may be composed of combatants and noncombatants and whether combatant or noncombatant they have the right upon capture to be treated as prisoners of war (Article 3, Hague Regulations). T h e distinction between combatants and noncombatants within the armed forces must be taken to correspond to the distinction between fighting troops and troops in service units. T h e fighting troops of an army carry out the actual military operations, whereas the service troops minister to the needs of the former and supply their various requirements. T h e Hague Regulations do not define the elements in the two classes, but combatants would include infantry, cavalry, armored troops, and the like, whose function it is to engage with the enemy; as well as artillery, engineers, signals, and others, whose duty it is to support such action. Noncombatants would include personnel of the various "services," comprising (inter alia) medical, chaplains, veterinary, graves, pay, postal, labor, supply, transport, ordnance, provost, legal, and military-government units. Women in the armed forces would fall into the categories of combatants and noncombatants according to their duties and not according to their sex. 15 " A b o v e , p. 23. " Hyde, III, 1800.

The Armed Forces

57

The term noncombatant as used in the present connection to describe certain elements within the armed forces is, of course, to be distinguished from the term noncombatant as applied to the general population of a belligerent, that is, those who do not belong to its armed forces. Also to be distinguished are those noncombatant persons who accompany the armed forces without actually being members of them, such as war correspondents, supply contractors, and welfare workers, although, as will be seen later, such persons are entitled to be treated as prisoners of war on falling into the hands of the enemy, according to Article 4A (4), Geneva Convention III, 1949. 16 T h e functions of noncombatant elements within the armed forces do not ordinarily bring them into actual conflict with the enemy, but, except for medical personnel and chaplains, no objection can be raised to their employment as combat troops if need should arise. In any case, subject to these exceptions, as members of the armed forces they are legitimate objects of attack by the enemy, and are exposed to all the risks of death and injury resulting from lawful operations of war. Medical personnel and chaplains occupy a special status among noncombatants. They are not lawful objects of attack by the enemy, but must be respected and protected in all circumstances. However, they must accept the risks of accidental death or injury as a result of war operations. Obviously, they are not entitled to engage in combat, although they may use arms to protect themselves or the sick and wounded in their charge, if they are attacked unlawfully. 17 If they do engage in combat, except for the purposes mentioned, they lose the protection of their status; and if they engage in combat under cover of the duties which afford them protection, they are guilty of war crime. 18 Medical personnel and chaplains who fall into the hands of the enemy are not to be deemed prisoners of war, but-must be returned to their own side (Article 30, Geneva Convention I, 1949), except for those who are retained by the enemy to care for prisoners of war, in which case they are known as "retained personnel" and are endowed with special rights (Article 28, Geneva Convention I, 1949; Article 33, Geneva Convention III, 1949). T h e position of medical personnel and chaplains will be discussed more fully later in chapter iv. T h e three classes of lawful belligerents are as follows. 16

Below, p. 98. " S e e Art. 22 (1), Geneva Conv. I, 1949; Art. 35 (1), Geneva Conv. II, 1949. " S e e Art. 23 (£), Hague Regulations, 1907; and below, p. 466.

The Armed

58

Forces

R E G U L A R A R M E D FORCES

T h e forces in the first category constitute the regular army of a state, and under that designation are included militia and volunteer corps in countries where they constitute the army or form part of it—Article i, Hague Regulations; Article 4A (i), Geneva Convention I, 1949.19 T h e members of such forces are equally entitled to recognition whether they are volunteers, conscripts, nationals of the state, neutrals who have joined the army of a foreign belligerent, persons who joined before the war, persons who enlisted during war, men or women. Equally entitled to the status of recognized belligerents are members of regular armed forces who profess allegiance to a government or an authority not recognized by the power which takes them prisoner— Article 4A (3), Geneva Convention III, 1949.20 This would cover such cases as the armies of the governments in exile of World War II; the Free French followers of General de Gaulle; and, conversely, the armies of the puppet governments set up by the Axis Powers in place of the foregoing governments in exile. 21 IRREGULAR A R M E D FORCES

T h e second category consists of members of militias and volunteer corps, other than those classified under regular army, and includes members of organized resistance movements belonging to a party to the conflict, operating in or outside their own territory, even if this territory is occupied, subject to the proviso that in order to obtain recognition as lawful belligerents all irregulars must fulfill all of the following four conditions. i) They must be commanded by a person responsible for his subordinates. ii) They must have a fixed distinctive sign recognizable at a distance. iii) They must carry arms openly. iv) They must conduct their operations in accordance with the laws and customs of war. —Article 1, Hague Regulations, in conjunction with Article 4A (2), Geneva Convention III, 1949.22 Some explanation of the four conditions is necessary. " Cf., Art. 13 (1), Geneva C o n v . I, 1949; A r t . 13 (1), Geneva Conv. II, 1949. " A n d the corresponding provisions in Geneva C o n v . I, Art. 13 (3); Geneva C o n v . II, Art. 13 (3). 21 See also below, p. 627. " C o r r e s p o n d i n g to A r t . 4A (2) o£ Geneva Conv. I l l , 1949, are A r t . 13 (2), Geneva Conv. I, 1949, and Art. 13 (2), Geneva Conv. II, 1949.

The Armed Forces

59

i) T h e commander must be a person responsible for his subordinates, that is, his authority over those in his command must be effective. Conventionally, such a commander is commissioned (regularly or temporarily) by his government, and he and the members of his force wear the badges of their various ranks and carry identification papers and identity discs. However, state recognition of the commander and his troops is not essential,23 the commander may derive his leadership as a person of position and authority acknowledged by his subordinates 24 or he may be elected by his troops.25 ii) T h e requirement of the display of a fixed distinctive sign recognizable at a distance is usually fulfilled by the wearing of a military uniform. In fact, modern armies are dressed in protective colors in order to render them as inconspicuous as possible and so less of a target for enemy action. Yet, it is essential, for the reasons cited, that soldiers must be marked out from the general population. T h e modern rule may, therefore, be formulated as follows: Soldiers must be dressed in such a fashion that they are clearly distinguishable from the general population as members of the armed forces. Since that is the purpose of the rule, such a dress would satisfy it. Where a complete uniform is not worn, and this is sometimes not possible because of the poverty of the country, a sudden emergency, or other reasons, the fixed distinctive sign should be something which cannot be instantly taken off or assumed at will, thus enabling a combatant to appear a peaceful citizen one moment and a soldier the next. T h e sign should be part of the clothing or sewn to it. No specific distance is laid down at which the sign should be recognizable, but applying the test already outlined, which is to distinguish clearly between soldier and civilian, a soldier should be recognizable as such to the naked eye at the same distance at which it would be possible to distinguish a civilian. 26 It is not necessary to inform the enemy of the distinctive mark 23 BrM.M.L., chap, xiv, par. 22, which emphasizes that the Hague Regulations make no mention in them of state authorization. Rolin, I, par. 285, shows clearly from the discussions of the first Hague Conference on Art. 1 of the Hague Regulations, 1899, which is identical with Art. 1 of the 1907 regulations, that government authorization for the commander and his troops is not considered essential. On the other hand, Fauchille, II, par. 1070, states as the most important condition that belligerents must fulfill is recognition and authorization by their own government. However, it is difficult to see how the enemy can be prejudiced by lack of such recognition, provided such troops satisfy the four conditions laid down above. 11 E.g., General de Gaulle who commanded the Free French Forces in World War II. 26 Br.M.M.L., Pt. Ill, par. 91; Rolin, I, par. 285. 28 Rolin, I, par. 286. Uniform worn over civilian clothes is considered legitimate, though controversial, by BrM.M.L., Pt. I l l , pars. 96, n. 3; 331, n. 1.

6o

The Armed

Forces

adopted, but it may be advisable to do so to avoid misunderstandings. 27 iii) Arms must be carried openly. Irregular combatants may "be refused the rights of the armed forces if it is found that their sole arm is a pistol, hand-grenade, or dagger concealed about the person, or a sword stick, or similar weapon, or if it is found that they have hidden their arms on the approach of the enemy." 28 iv) Lastly, irregular forces must conduct their operations in accordance with the laws and customs of war. "It is especially necessary that they should be warned against employment of treachery, maltreatment of prisoners, wounded and dead, improper conduct towards flags of truce, pillage, and unnecessary violence and destruction." 29 In any case, there is clearly an obligation on all belligerents to instruct their forces in the laws and customs of war.30 T h e category of "organized resistance movements" was newly introduced into the ranks of lawful belligerents by Geneva Conventions I, II, and III of 1949, and, therefore, deserves further consideration. By this provision, 31 belligerent status is clearly granted to guerrilla forces complying with certain requisites, in this manner resolving the controversy regarding such forces which arose in World War II. T h e qualifications for recognition are that such forces must be: i) Organized. By their very nature, guerrilla forces must operate in small bands and act on their own initiative to a much greater degree than regular forces, but to obtain the protection afforded by the present provision it would appear that they should have a central organization and be subject to the discipline and directives of that central command. Disorderly bands operating on their own unrestricted initiative and responsibility are seemingly excluded from the protection of this provision, as are individual guerrillas acting on their own responsibility. ii) Belong to a party to the conflict. T h e provision does not say actually authorized by the government of that party. iii) Fulfill the four conditions of being commanded by a person responsible for his subordinates, wearing a fixed distinctive sign recogPt. Ill, par. 93; U.S. Law 64b. Pt. Ill, par. 94. 9 Br.M.M.L., chap, xiv, par. 27. Cf. ibid., Pt. Ill, par. 95. ""Art. 1 of Hague Conv. IV, 1907, states: "The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land, annexed to the present Convention." 81 Art. 4A (2), Geneva Conv. Ill: Art. 13 (2) in each of Geneva Convs. I and II, all of 1949. 27

Br.MM.L.,

28Br.M.M.L.,

The Armed

Forces

61

nizable at a distance, carrying arms openly, and conducting their operations in accordance with the laws and customs of war. 32 There is, therefore, an insistence (inter alia) on the necessity of some kind of uniform and that arms be carried openly, two provisions obligatory on irregular forces by Article 1 of the Hague Regulations which had been questioned by learned opinion in the Soviet Union in relation to guerrillas. 33 Guerrillas who do not comply with the provisions laid down may perform patriotic service for their country (just as espionage agents often do), yet such illegitimate hostilities come within the technical heading of war crimes, and their perpetrators must be prepared to take their punishment if captured. 34 T h e organized resistance movements may lawfully operate in or outside their own territory, even if this territory is occupied. This provision is to be contrasted with that governing the levée en masse, to be discussed next, which can only apply to the inhabitants of a nonoccupied territory (Article 2, Hague Regulations, 1907, repeated in Geneva Conventions I, II, and III, 1949). A distinction should be drawn between guerrilla warfare conducted 32 Cf. the opinion expressed by five U.S. military tribunals at Nuremberg, sitting in plenary session in chambers, April 26, 1948, on an application submitted on behalf of a person convicted by one of those tribunals, alleging a contradiction between the judgments of two of the tribunals regarding the requirements partisans must meet in order to receive protection under international law. See TWC, XV (Procedure, Practice and Administration), 1109-1110. T h e Netherlands Military Court of Appeal, Jan. 5, 1954, held permissible under the law of war a raid by a Dutch resistance group in 1945 on a private (Dutch, it would seem) merchant in occupied Holland, to obtain urgently needed money for resistance purposes. Nederlands Tijdschrift voor Internationaal Recht, II ( ] 955). 3 01 ~3°3; 5° A.J.I.L. 442. 113 Trainin, op. cit., at pp. 555-560. 34 See below, p. 466. It should be noted that the text discusses the status of lawful and unlawful combatants, i.e. persons who carry on the war as such, engaging in both offensive and defensive action. What, however, of the position of the peaceful population which is illegally attacked by the forces of a belligerent? Have they no right of self-defense, on pain of being condemned as illegal combatants against such illegal attacks, as they would have ordinarily against marauders and assassins in peacetime? Must they submit to being robbed, wounded, or killed merely because the illegal attacks are made by combatants in the service of the enemy? In this connection, it was stated in the Report of Committee II at the Diplomatic Conference of Geneva, 1949: "Nevertheless, [the Danish] Delegation asked that the Summary Record should mention that no objections had been raised, during the discussion in the Special Committee, against his view that Article [4, Geneva Conv. Ill, 1949] could not be interpreted in such a way as to deprive persons, not covered by the provisions of Article [4], of their human rights or of their right of selfdefense against illegal acts." Final Record, IIA, 562. See also Ibid., 481. Cf. Castrin, The Present Law of War and Neutrality, p. 67, on the right of self-defense of individual civilians against unlawful enemy acts.

62

The Armed

Forces

by irregular troops and guerrilla tactics executed in the rear of enemy lines by small bodies of regular troops.35 T h e latter operations do not constitute guerrilla warfare, and the troops engaged in them come under the classification of regular armed forces.36 THE Levée en Masse T h e inhabitants of a territory not under occupation who, on the approach of the enemy, 37 spontaneously take up arms to resist the invading troops, without having had time to organize themselves into regular armed units which fulfill the four conditions previously discussed,38 are entitled to be regarded as belligerents provided they carry arms openly and respect the laws and customs of war (Article 2, Hague Regulations, 1907; Article 4A (6), Geneva Convention III, 1949; Articles 13 (6) in each of Geneva Conventions I, and II, 1949). Such a popular manifestation is known as the levée en masse, or the spontaneous springing to arms of the mass of the population in defense of the country. In such circumstances, the inhabitant combatants are exempted from the first two of the four conditions which must be fulfilled by other irregular troops. T h a t is, the fact that in the levée en masse the inhabitants are not commanded by a person responsible for his subordinates, nor wear a fixed distinctive sign, does not deprive them of the status of lawful belligerents. They must, however, comply with the other two conditions, namely, carry arms openly and respect the laws and customs of war. Since the levée en masse is a spontaneous, unorganized movement, the rules concerning them should be generously interpreted. " T h e first duty of a citizen is to defend his country, and provided he does so loyally he should not be treated as a marauder or criminal." 39 Similarly, the United States Rules of Land Warfare state: "No belligerent has the right to declare that he will treat every captured man in arms of a levée en masse as a brigand or bandit." 40 However, the Rules add this qualification: "Certain classes of those forming part of a levée en masse cannot claim the privileges accorded [i.e., those of belligerents]. Amongst these are deserters from, or subjects of, the invading belliger® See Nurick and Barrett, op. cit., at pp. 555-560. •"See Hyde, III, 1798; U.S. Law 63 (Commandos and airborne troops); Br.M.M.L., Pt. Ill, par. 105. " T h i s includes occupied territory which the enemy has evacuated, or where it has lost effective control, and which it is seeking to reoccupy. Trial of Bauer, et al. (1945), French Mil. Trib., France, L.R.T.W.C., VIII, 18. 88 Above, p. 58. *> Br.MM.L., chap, xiv, par. 30. " R u l e 10.

The Armed Forces

63

ent, and persons who are known to have violated the laws and customs of war." 4 1 T h e British Manual has indicated that terms may be specially made for such persons.42 T h e levée en masse is lawful only for the inhabitants of a territory not under occupation. This may be contrasted with the position of organized resistance movements belonging to a party to a conflict, which may operate in or outside their own territory, even if this territory is occupied.*3 However, the latter privilege is accorded only to organized resistance movements, whereas the essence of a levée en masse is that it is unorganized. Further, the organized resistance movements must fulfill all four of the conditions set out earlier, 44 while the levée en masse need only comply with two of them. When is a territory considered occupied, so as to render illegal a levée en masse? This happens when the territory is actually placed under the authority of the hostile army (Article 42, Hague Regulations, 1907); that is, the occupation must be effective. If only a part of a territory is occupied, the inhabitants of the unoccupied parts are not prevented from lawfully taking part in a levée en masse. Where some of the inhabitants of a town or village rise in its defense on the approach of the enemy, all the inhabitants of the town or village may be considered legitimate enemies until the place is taken; 45 and if some inhabitants of a locality defend it, it might be justifiable to treat all males of military age as prisoners of war until their exact status is determined. 46 Just as other lawful irregular forces may do, the participants in a levée en masse may concert their operations with the regular armed forces or act independently. Where inhabitants have taken part in the levée en masse, they may be taken prisoners of war even after they have abandoned the fight and resumed civilian life. 47 When any troops, regular or irregular, are taken prisoner, any questions concerning their status as lawful belligerents must be left to the competent higher military authority. In cases of doubt the matter

Rule 11. Cf. BrMM.L., Pt. I l l , pars. 99, n. 1; 103. chap. xiv. par. 36. 43 Above, pp. 58, 61. 44 Above, p. 58. " BrMM.L., chap, xiv, par. 32; U.S. Law 65; but note provisions o£ Geneva Conv. IV, 1949, for protection of wounded, sick, aged, children, expectant mothers, and mothers of young children in operational areas, especially Arts. 13-17, see below, pp. 161-163. 46 BrMM.L., Pt. I l l , par. 100; U.S. Law 65. 41

aBrM.M.L.,

47

BrM.M.L.,

1949-

chap, xiv, par. 35; U.S. Law 65; Art. 4B

(1), Geneva Conv. I l l ,

64

The Armed

Forces

must be decided by a competent tribunal. Summary execution is absolutely forbidden. 4 8 UNCIVILIZED C O M B A T A N T S Savages and primitive peoples who do not understand the rules of civilized warfare or are not prepared to apply them should not be employed as troops in war. 49 T h e use of animals as combatants, such as dogs, has also been condemned on the grounds that they can cause wounds which are unnecessarily cruel and may devour disabled men. 50 "See Art. 5, Geneva Conv. Ill, 1949; Br.MM.L.,

Pt. Ill, par. 104; U.S.

>3" Hyde, III, 1796; Fenwick, p. 556; BrMM.L., m Fauchille, II, par. 1083.

chap, xiv, par. 38.

Rules

IV THE

WOUNDED,

SICK, AND

DEAD

OF T H E A R M E D

FORCES

INTRODUCTORY It was the pitiable plight of 40,000 wounded abandoned to die on the Italian battlefield of Solferino in 1859 that stirred generous sympathies and led to the conclusion of the first Geneva Convention in 1864. T h e conventions of 1906 and 1929 followed. The latest in the series of Geneva conventions aiding the wounded and sick in land war is the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949 1 (referred to in these pages as Geneva Convention I, 1949). This last convention replaces the Geneva Convention of 1929 (and the earlier ones) in relations between states which are, or which become, parties to it.2 The convention of 1949 is in force, 3 but a minority of states have still to ratify or accede to it.4 Technically, therefore, the earlier Geneva conventions still apply to a number of states in their relations with others. Hence, in dealing with the present convention it will be convenient to note the material variations between it and the 1929 convention. 1

Signed by 61 states. Art. 59, Geneva Conv. I, 1949. ' D a t e of coming into force, Oct. 21, 1950. 4 U p to and including May, 1958, 66 states had ratified or acceded to the convention. See Statements of Treaties and International Agreements, Nov. 1950-May 1958, U.N. Docs. S T / L E G / S E R . A / 4 5 - 1 3 5 , New York. Ratification and accessions have immediate force on armed conflict or occupation; see Art. 6a. Cf. Art. 61, Geneva Conv. II, 1949. 2

68

The Wounded, Sick, and Dead THE

PROVISIONS

OF GENEVA C O N V E N T I O N

I,

1949

GENERAL APPLICATION OF THE CONVENTION

i) The convention applies to all armed conflicts between parties to the convention, whether war had been declared or not, and even if one of the participants refuses to recognize a state of war.6 It also applies to partial or total occupations of the territory of a party, even if the occupation is not resisted. The parties undertake to respect and ensure respect for the convention in all circumstances, including those conflicts in which one or more of the participants are not parties to this convention. In the latter circumstances, parties are bound by the convention in their mutual relations; and also as regards nonparties, provided the latter accept and apply its provisions6 (Articles 1, 2). What is known as a "general participation clause" is, therefore, excluded. Such a clause (e.g.. Article 2, Hague Convention IV, 1907) renders a convention inapplicable even between belligerents who are contracting parties, where one or more belligerents are not parties to the convention. The present convention applies even if some belligerents in a war are not parties to the convention. In this respect, the present convention repeats and even extends a similar provision7 of the 1929 convention. "General participation clauses" inserted in multilateral international conventions have often substantially reduced the effectiveness of those conventions (an example in point is the Hague Convention IV, 1907) in that they have provided a ready excuse for 6 "It was a step forward in international law to say explicitly that, even if war was not recognized, the rules concerning the conduct of war should be applied." Final Record, IIB, 11, statement of Castberg, delegate from Norway. See also the statement of Leland Harrison, delegate from the United States: "The Convention would, therefore, be applicable to all cases of declared or undeclared war between states, parties to the Convention, and to certain armed conflicts within the territory of a state party to the Convention." Ibid,., p. 12. Cf. Tokyo Judgment, p. 1209 (in regard to the China "Incident"). 6 For a nonparty to accept and apply the provisions of the convention, it is necessary for it to make a declaration to that effect, either spontaneously, or by summons or invitation from the contracting state, or by intervention by an international body. No uniform procedure is laid down. T h e convention would be applicable as soon as the declaration was made; but it would cease to be applicable as soon as the declaration was clearly disavowed by the attitude of the noncontracting belligerent. A hypocritical declaration belied by the facts is not sufficient. If the nonparty declared itself not bound by the convention, the latter would, of course, not apply. Final Record, IIB, 108-109, 128, Reports of Joint Committee and its Special Committee. 7

Art. 25, Geneva Conv., 1929.

The

Wounded,

Sick, and Dead

69

nations wishing to ignore the terms of such conventions. Experience in both world wars has demonstrated this.8 ii) A party may withdraw from the convention, but such a denunciation, so called, of the treaty, made during a conflict in which the party is involved, cannot take effect until peace has been concluded and after operations connected with the release and repatriation of the persons protected by the convention have been terminated. Furthermore, the denunciation "shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience." In any case, the denunciation has effect only in respect of the party denouncing (Article 63). T h e extract cited from Article 63 is a new provision not contained in the 1929 convention, and serves to remind states that conventions such as the present only express in treaty form obligations which are already binding under international law derived from other sources. T h e words in the citation are drawn from the de Martens clause in the preamble to Hague Convention IV of 1907.9 iii) Neutral powers must apply by analogy the provisions of the convention to wounded, sick, medical personnel and chaplains of the armed forces of the parties to the conflict, 10 received or interned in their territory, as well as to any dead who may be found (Article 4). " T h e words 'received' or 'interned' shall apply, as regards the first, to the medical personnel and chaplains who are not necessarily to be interned, and as regards the second, to wounded and sick persons." 1 1 •See Nuremberg Judgment, p. 61. 9Final Record, IIB, 113; see also above, p. 6. 10 T h e term "Parties to the conflict" is used throughout the four Geneva conventions of 1949 (except for Art. 14, Conv. I, and Arts. 14 and 16, Conv. II) in preference to the term "belligerents" used in the earlier Geneva conventions. T h e reason for this is to make it clear that the provisions of the four conventions have effect independently of whether a party engaged in a conflict is technically a belligerent under the rules of international law and as such entitled to exercise belligerent rights. Recognition of technical belligerency has particular importance because it brings into effect the rights and obligations of neutrality under the laws of war. However, " T h e question of belligerency is completely outside [the] scope of the provisions and of the solutions proposed in the four Conventions." Final Record, IIB, 336. In this connection, the Diplomatic Conference of Geneva, 1949, also passed the following resolution (Resolution 10): " T h e Conference considers that the conditions under which a Party to a conflict can be recognized as a belligerent by Powers not taking part in this conflict, are governed by the general rules of international law on the subject and are in no way modified by the Geneva Conventions." Geneva Conventions . . . (U.S. Dept. of State Pub. 3938, Gen. For. Pol. Ser. 34, 1950), p. 22. u

Final Record,

IIA, 190. For further discussion of this article, see pp. 567-568.

The Wounded,

7°

Sick, and Dead

iv) For persons protected by the convention who have fallen into the hands of the enemy, the convention applies until their final repatriation (Article 5). v) In addition to the various agreements expressly provided for by the convention, parties may conclude other special agreements, but none that shall adversely affect the situation under the convention of the wounded and sick, medical personnel, and chaplains, nor restrict the rights it confers on them. 12 Wounded and sick, as well as medical personnel and chaplains, must continue to have the benefit of such special agreements as long as the convention is applicable to them, except where express provisions to the contrary are contained in those or later agreements, or where more favorable measures have been taken with regard to them by one or other of the belligerents (Article 6). vi) Wounded, sick, medical personnel, and chaplains may in no circumstances renounce in part or in entirety the rights secured to them by the present convention and by any special agreements (Article 7). vii) Forces put ashore from naval forces immediately become subject to the provisions of Geneva Convention I, 1949, instead of those of Geneva Convention II, 1949.13 In the case of hostilities between land and naval forces, Geneva Convention II only applies to forces on board ship; otherwise Geneva Convention I applies (Article 4, Geneva Convention II, 1949).

SUPERVISION BY P R O T E C T I N G P O W E R S AND HUMANITARIAN ORGANIZATIONS

i) T h e convention shall be applied with the cooperation and under scrutiny 14 of the protecting powers (i.e., neutral powers) whose duty it is to safeguard the interests of the parties to the conflict. For this purpose, the protecting Powers may appoint, apart from their diplou

T h i s qualification applies equally to the agreements expressly provided for in

Arts. 10, 15, 23, 28, 31, 36, 37, and 52 of the convention. Final R e p o r t of the Joint 1 3 1.e.,

Record,

IIB,

129,

Committee.

Geneva Convention for the Amelioration of the C o n d i t i o n of

Wounded,

Sick and Shipwrecked Members of A r m e d Forces at Sea. " T h e word 'forces' [in the article] must enumerated

be

taken

in Arts.

in

the

broadest

13, 36, and

37 of

possible Geneva

sense." I t Convention

includes II,

all

persons

1949. Ibid.,

IIA,

200, R e p o r t of Committee I. For the articles mentioned, see below, pp. 72-73, 81. ""The

fundamental

concept

was

that

the

Protecting

Power

could

not

give

orders or directives to the D e t a i n i n g Power. It was entitled to verify whether the Convention was applied and, if necessary, to suggest measures o n behalf of tected persons." Ibid.,

I I B , 110, R e p o r t of Special C o m m i t t e e of Joint

pro-

Committee.

The Wounded, Sick, and Dead

71

matic or consular staff, delegates from among their own nationals or the nationals of other neutral powers. Such delegates shall be subject to the approval of the power with which they are to carry out their duties. The parties to the conflict must facilitate to the greatest extent possible, the task of the representatives or delegates of the protecting powers. These representatives or delegates shall not in any case exceed their mission under the convention, and, in particular, must take account of the imperative necessities of security of the state in which they carry out their duties. On the other hand, their activities shall only be restricted as an exceptional and temporary measure when this is rendered necessary by imperative military necessities (Article 8). ii) The International Committee of the Red Cross or any other impartial humanitarian organization15 may (subject to the consent of the parties to the conflict concerned) undertake humanitarian activities for the protection and relief of the wounded, sick, medical personnel, and chaplains (Article 9). iii) The parties may at any time agree to entrust to an organization16 which offers all guarantees of impartiality and efficacy the duties which the convention lays on the protecting powers. Whenever the persons protected by the convention do not benefit or cease to benefit, no matter for what reason, from the activities of a protecting power or such organization, then the detaining power must request a neutral state or such an organization to undertake the functions of the protecting power. (The Soviet Union, a number of powers associated with it, and Portugal have raised objection to the last mentioned provision, and have reserved their rights in this connection. They insist that before a detaining power may make such a request, it must first obtain the consent of the government of whom the protected persons are nationals.)17 Where protection cannot be arranged in the fashion described in the first paragraph, the detaining power must request or accept the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions 18 of the protecting powers. 16

Not necessarily of an international character. Ibid., p. 1 1 1 . " T h e r e may be several such bodies. Ibid., p. 130, Report of Joint Committee. 17 See Geneva Conventions . . . , p. 252, for U.S.S.R. reservation. 18 I.e., not all tasks devolving on the protecting powers under the convention, but only those of a humanitarian character. Final Record, IIB, 130, Report of Joint Committee.

72

The

Wounded,

Sick, and Dead

However, any neutral power or humanitarian organization substituting for a protecting power is required to act with a sense of responsibility toward the belligerent whose dependents 19 are being protected, and must be required to furnish sufficient assurances that it is in a position to undertake the appropriate functions and discharge them impartially. 20 Where powers make special agreements, no derogation shall be made from the provisions set out if one of those powers is restricted, even temporarily, in its freedom to negotiate with the other power or its allies because of military events, particularly where its territory is occupied 2 1 (Article 10). iv) Where belligerents disagree about the convention, particularly about the application or interpretation of its provisions, the protecting powers are required to lend their good offices to settle the dispute. 22 Each protecting power may propose to the belligerents a meeting—possibly on neutral territory—of their representatives, in particular of the authorities responsible for the wounded, sick, medical personnel and chaplains. T h e belligerents are bound to give effect to such proposals. If necessary, the protecting powers may propose a person belonging to a neutral power or delegated by the International Committee of the R e d Gross, to take part in the meeting 23 (Article 11). T H E WOUNDED AND SICK24 i) Protected by the convention are the wounded and sick of the following categories: " T h e article used the term "Party to the conflict on which persons protected by the present Convention depend." This is not necessarily the power o£ which such persons are nationals. Loc. cit. 20 " T h e right to demand guarantees was likewise granted to the Detaining Power as well as to the Power, if any, on which the persons to be protected depended." A detaining power may have grounds for doubt arising subsequently in the case of a neutral power or a body which it had itself invited. Loc. cit. 21 This paragraph was added to render impossible agreements such as that between the Vichy government and the German government on the subject of French prisoners of war in Germany in World War IX. Loc. cit. 22 No duty of interpretation is conferred on the protecting power. Ibid., p. 131. 23 Resolution 1 of the Diplomatic Conference of Geneva, 1949, states: " T h e Conference recommends that, in the case of a dispute relating to the interpretation or application of the present Conventions which cannot be settled by other means, the High Contracting Parties concerned endeavour to agree between themselves to refer such dispute to the International Court of Justice." See Geneva Conventions . . . , p. 20. M T h e shipwrecked are protected by analogous provisions to those established by this convention, under the provisions of Geneva Convention II, 1949, which see. "Shipwreck" means shipwreck from any cause and includes forced landings at sea by or from aircraft. Art. 18, Geneva Conv. II, 1949.

The

Wounded,

Sick,

and

Dead

73

a) Members of the armed forces of a party to a conflict, as well as members of militias or volunteer corps forming part of such armed forces. b) Members of other militias and other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the four conditions mentioned earlier. (See in chapter iii, "Irregular Armed Forces.") c) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. d) Persons who accompany the armed forces without being members, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany. e) Members of crews, including masters, pilots, and apprentices, of the merchant marine and the crews of civil aircraft of the parties, who do not benefit by more favorable treatment under any other provisions in international law. f) Inhabitants of a nonoccupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war (Article 13). T h e convention, therefore, applies to the w o u n d e d a n d sick of the various classes of l a w f u l belligerents discussed earlier, 2 5 w i t h the addition of categories (d) a n d (e). T h e s e provisions are m u c h m o r e detailed than those c o r r e s p o n d i n g in A r t i c l e 1 of the 1 9 2 9

convention.

I n c l u d e d f o r the first time are resistance m o v e m e n t s , in category

(b),

a n d the forces referred to in category (c). T h e categories here enumerated are r e p r o d u c e d in A r t i c l e 1 3 of G e n e v a C o n v e n t i o n I I , 1 9 4 9 , 2 6 a n d i n A r t i c l e 4 A of G e n e v a C o n v e n t i o n I I I , 1 9 4 9 . 2 7 " I t is of course clearly understood that those not i n c l u d e d i n this e n u m e r a t i o n still r e m a i n protected, either b y other C o n v e n t i o n s , or simply b y the general principles of I n t e r n a t i o n a l L a w . "

28

ii) T h e e n u m e r a t e d w o u n d e d or sick persons are to b e respected a n d protected in all circumstances. 2 9 T h e y m u s t b e treated h u m a n e l y a n d cared f o r b y the belligerent in whose p o w e r they m a y be, w i t h o u t a n y adverse distinction f o u n d e d on sex, race, n a t i o n a l i t y , 26

religion,

Above, pp. 55 f. For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; which by Art. 13 also protects the shipwrecked members of Categories (a) to (f). "Shipwreck" is defined above, n. 24. 27 Relative to the Treatment of Prisoners of War. For further discussion of the various categories, see below, pp. 97 f. 28 Final Record, IIA, 191. See also Art. 16, Geneva Conv. IV, 1949, below, p. 162. 29 In view of the risk of accidental death or injury to which wounded and sick are inevitably exposed while remaining in the zone of battle, the practical necessity for their early removal to the rear is strongly urged. Hyde, III, 1871. 26

74

The

Wounded,

Sick,

and

Dead

political opinions, or any other similar criteria. 30 Any attempts upon their lives, or violence to their persons, is strictly prohibited; in particular, murder, extermination, subjection to torture or biological experiments. 31 They must not willfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created. Only urgent medical reasons must authorize priority in the order of treatment to be administered. Women must be treated with all consideration due to their sex. A belligerent compelled to abandon wounded and sick to the enemy must, so far as military considerations permit, leave with them a part of its medical personnel and material to assist in their care (Article 12). These provisions incorporate the experience of World War II and again are much fuller than the corresponding Article 1 of the 1929 convention. Certain offenses are specially mentioned, not to limit the generality of the provision, but because of the appalling atrocities of this nature committed during World War II. 32 Both the physical and moral integrity of the wounded and sick are protected. 33 T h e last paragraph of the article is designed to help wounded and sick when the medical service of the opposing side would be unable to cope with them. Although the obligation is imposed of respecting and protecting the wounded and sick, obviously if such persons continue active hostilities they are liable to be treated as active combatants and lose protection while so engaged. 34 iii) T h e wounded and sick of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them, subject to the special provisions set out in section ii above (Article 14). iv) A t all times and particularly after an engagement, belligerents must, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, and to ensure their adequate care. Whenever circumstances permit, an armistice or suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange, and 30 T h e foregoing is not intended to prohibit concessions, particularly with respect to food, clothing, and shelter, which take into account the different national habits and backgrounds of the wounded and sick. U.S. Law 215&. 31 T h i s does not apply to therapeutic treatments, whether medical or surgical. Final Record, IIA, 191, Report of Committee I; cf. Art. 13, Geneva Conv. I l l , 1949, below. T h e fact that a person is under sentence of death provides no justification for his use in medical experiments. The Medical Case (United States v. Brandt, et al. (1947), U.S. Mil. T r i b . , Nuremberg, TWC, II, 227. 32 See The Medical Case, above. 33 Final Record, IIA, 191. 34 See BrM.M.L., chap, xiv, par. 175; Art. 21 of present convention, below, p. 83.

The

Wounded,

Sick, and Dead

75

transport of the wounded left on the battlefield. Likewise, local arrangements may be concluded between the belligerents for the removal or exchange of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area (Article 15). Such removal and passage may also be effected by sea (Article 18, Geneva Convention II, 1949). v) T h e parties to a conflict must record as soon as possible any particulars which may assist in the identification of each wounded or sick or dead person of the opposing side falling into their hands. These records should if possible include: designation of the power on which he depends; army, regimental, personal, or serial number; full name; date of birth; any other particulars shown on his identity card or disc; date and place of capture or death; particulars on wounds or illness, or cause of death. As soon as possible this information shall be forwarded to the Prisoners of W a r Information Bureau, 35 which shall transmit the information to the power on which these persons depend through the intermediary of the protecting power and of the Central Prisoners of W a r Information Agency 3 6 (Article 16). vi) T h e military authorities may appeal to the charity of the inhabitants voluntarily to collect and care for, under their direction, the wounded and sick, granting persons who have responded to this appeal the necessary protection and facilities. Should the enemy take or retake control of the area, he shall likewise grant these persons the same protection and the same facilities. T h e military authorities shall permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality. T h e civilian population shall respect these wounded and sick, and in particular abstain from offering them violence. N o one may ever be molested or convicted for having nursed the wounded or sick. These provisions do not relieve the occupying power of its obligation to give both physical and moral care to the wounded and sick (Article 18). Article 5 of the 1929 convention insisted upon the necessity for military supervision in the collection and care of wounded and sick by the civilian population. T h e first paragraph in Article 18 of the present convention provides for directed collection and care, but 35

See Art. 122, Geneva Conv. I l l , 1949, below, pp.

86

See

ibid., Art.

123, below, p. 151.

150-151.

76

The

Wounded,

Sick, and Dead

the second paragraph permits the inhabitants spontaneously lect and care for the wounded and sick.37 THE

to col-

DEAD

i) It is the duty of the belligerents at all times, and particularly after an engagement, to take all possible measures without delay to search for the dead and prevent their being despoiled 38 (Article 15). ii) T h e belligerents shall record and transmit as soon as possible the particulars set out in section v above 39 under the heading " T h e Wounded and Sick" of any dead person of the adverse party falling into their hands. In addition, the parties to the conflict shall prepare and forward to each other through the Prisoners of War Information Bureau, certificates of death or duly authenticated lists of the dead. They shall likewise collect and forward through the same bureau one half of a double identity disc, last wills or other documents of importance to the next of kin, money and in general all articles of an intrinsic or sentimental value, which are found on the dead. These articles, together with unidentified articles, shall be sent in sealed packets, accompanied by statements giving all particulars necessary for the identification of the deceased owners, as well as by a complete list of the contents of the parcel (Article 16). iii) Belligerents shall ensure that burial or cremation of the dead, carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity, and enabling a report to be made. One half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the body. 37 " T h i s is a provision of exceptional importance, since it aims at ensuring that paratroops of the armed forces, for instance, or even resistants complying with certain specified conditions, shall not be deprived of all care. It frequently occurred during the last war that it was forbidden to render them any aid subject to extremely severe penalties. T h e new provisions ensure that no one, whether a doctor or anyone else, can ever be prosecuted or convicted simply for having rendered aid to the sick or wounded." Final Record, I I A , 184, 185, Report of Committee I to the Plenary Assembly of the Conference. 38 In Trial of Max Schmid (1947), U.S. Gen. Mil. Govmt. Ct., Germany, L.R.T.W.C., X I I I , 151, the accused, a German doctor, was convicted of the maltreatment of the dead body of a member of the U.S. Army. T h e accused severed the head from the body, bleached the skull, kept it on his desk for several months and eventually sent it to his wife as a souvenir. See also various convictions of Japanese war criminals for offenses against the dead, including cannibalism. Ibid., p. 152. s® Above, p. 75.

The

Wounded,

Sick, and Dead

77

Bodies must not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. T h e circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead. T h e belligerents must further ensure that the dead are honorably interred, 40 if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found. For this purpose the belligerents shall organize at the commencement of hostilities an official Graves Registration Service, to allow later exhumations and to ensure the identification of bodies, whatever the site of the graves, and the possible transportation to the home country. T h e s e provisions likewise apply to the ashes, which shall be kept by the Graves Registration Service until proper disposal in accordance with the wishes of the home country. A s soon as circumstances permit, and at the latest at the end of hostilities, these services shall exchange, through the Prisoners of W a r Information Bureau, lists showing the exact location and markings of the graves, together with particulars of the interred dead (Article 17). These provisions are much fuller than the corresponding provisions in Article 4 of the 1929 convention, and some are entirely new, particularly those in the second paragraph, concerning cremation. iv) T h e provisions of Geneva Convention I, 1949, are also applicable to dead persons landed from the sea (Article 20, Geneva Convention II, 1949). T H E STATUS OF THE PERSONNEL

Personnel aiding the wounded and sick fall into three main categories according to the rights they enjoy. i) T h e first category consists of two classes which have similar rights: a) Medical personnel exclusively engaged in the search for, or the collection, transport, or treatment of the w o u n d e d or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units a n d establishments, as well as chaplains attached to the armed forces (Article 24).41 b) T h e staff of national R e d Cross societies and that of other voluntary aid societies, d u l y recognized and authorized by their governments, w h o are employed on the same duties as the medical personnel above, provided the staff of such societies are subject to military laws and regulations. Each party to the convention must n o t i f y to the other (before actually e m p l o y i n g them) the names of the " S e e Trial of Max Schmid, above. 41 For the status of crews of medical aircraft, see below, p p . 87-88.

78

The

Wounded,

Sick, and Dead

societies which it has authorized, under its responsibility, to render assistance

to

the regular medical service of its armed forces (Article 26).

T h e personnel named in the two classes must be respected and protected in all circumstances. If they fall into the hands of the enemy, they are not to be deemed prisoners of war, but must be returned to their own side as soon as a road is open for their return and military requirements permit (Articles 24, 28, 30, Geneva Convention I, 1949; Article 4C, Geneva Convention III, 1949). Naturally, the enemy will not allow such medical personnel to return at a time when they could convey useful military information to their own side, but they should be returned as soon as circumstances permit. 42 Pending their return, they are entitled, at the very least, to benefit by all provisions of Geneva Convention III, 1949, on the treatment of prisoners of war. 43 In the meantime, they must continue to fulfill their duties under the orders of the enemy and shall preferably be engaged in the care of the wounded and sick of their own party to the conflict. O n their departure they must be allowed to take with them the effects, personal belongings, valuables, and instruments belonging to them (Article 30, Geneva Convention I, 1949). T h e y are no longer entitled to take with them their means of transport, which they were previously permitted to do under Article 12 of the 1929 convention. 44 Under new provisions introduced by the present convention, the enemy is, however, entitled to retain certain of the above-mentioned personnel to render medical services to the prisoners of war in the hands of the enemy. A l l those may be retained that the state of health, the spiritual needs, and the number of prisoners of war require, but only to that extent (Article 28). T h e 1929 convention (Article 12) had stated that such personnel might not be retained, in the absence of special agreement to the contrary. T h e retained personnel are not to be deemed prisoners of war, but they must at least benefit by all provisions of Geneva Convention III, as stated above. W i t h i n the framework of the military laws and regulations of the detaining power, and under the authority of its competent service, they must continue to carry out, in accordance with 42Cf. 43

U.S. Law

2 3 i b , 233b.

Below, pp. 96 f. T h e pay of the retained personnel will be governed

provisions of Geneva Convention III, 1949

by

the

(Arts. 60, 61, 62). " A l t h o u g h the C o m -

mittee wished to grant such personnel a privileged position, it proved

impossible

to retain in their favour the special pay, maintenance and quarters provided for in the 1929 Convention 44

(Article 13)." Final

Record,

IIA,

195.

For provisions of the present convention on medical transport, see below, pp.

86-88.

The Wounded,

Sick, and Dead

79

their professional ethics, their medical and spiritual duties on behalf of prisoners of war, preferably those of the armed forces to which they themselves belong. They shall further enjoy the following facilities for carrying out their medical or spiritual duties: 1. They shall be authorized to visit periodically the prisoners of war in labor units or hospitals outside the camp. T h e detaining power shall put at their disposal the means of transportation required. 2. In each camp the senior medical officer of the highest rank shall be responsible to the military authorities of the camp for the professional activity of the retained medical personnel. For this purpose, from the outbreak of hostilities, the belligerents shall agree regarding the corresponding seniority of the ranks of their medical personnel, including those of the national Red Cross societies and other voluntary aid societies mentioned in the second class of the present category. In all questions arising from their duties, this medical officer, and the chaplains, shall have, direct access to the military and medical authorities of the camp who shall grant them the facilities for correspondence relating to these questions. 3. Although retained personnel in a camp shall be subject to its internal discipline, they shall not, however, be required to perform any work outside their medical and religious duties. During hostilities the belligerents shall make arrangements for relieving where possible retained personnel, and shall settle the procedure of such relief. None of these provisions relieve the detaining power of the obligations imposed upon it with regard to the medical and spiritual welfare of the prisoners of war. That is, it cannot transfer its basic responsibility in these matters to the retained personnel by utilizing them to render such services to the prisoners of war (Articles 24, 26, 28, 30, Geneva Convention I, 1949; Articles 4C, 33, 35, Geneva Convention III, 1949). T h e selection of personnel whose retention is not indispensable for return to their own side must be made irrespective of any consideration of race, religion, or political opinion, but preferably according to the chronological order of their capture and their state of health. As from the outbreak of hostilities, the belligerents may determine by special agreement the percentage of personnel to be retained, in proportion to the number of prisoners and the distribution of that personnel in the camps (Article 31, Geneva Convention I, 1949). ii) T h e second main category consists of members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses, or auxiliary stretcher bearers, in the search

8o

The Wounded,

Sick, and Dead

for or the collection, transportation, or treatment of the wounded and the sick (Article 25; unless otherwise indicated, the articles in this chapter refer to Geneva Convention I, 1949). 45 They are entitled to the same respect and protection as the permanent medical personnel of the first category, if they are carrying out the duties named at the time when they come into contact with the enemy or fall into his hands. However, should they fall into the hands of the enemy they become prisoners of war, unlike the members of the first category. Nevertheless, as prisoners of war the enemy is under an obligation to employ them on their medical duties as far as the need allows (Articles 25 and 29). A n important change has, therefore, been made in the status of members of the second category by the present Convention. Under Article 12 of the 1929 convention they did not become prisoners of war, but were returned to their own side, and their status was assimilated in all respects under that convention to that of persons in the first category. T h e purpose of the change was to make a clear distinction between temporary and permanent personnel.46 iii) In the third main category are recognized aid societies of neutral countries which can lend the assistance of their medical personnel and units to a belligerent only with the previous consent of their own governments and the authorization of that belligerent. Such personnel and units must be placed under the control of that belligerent.47 " " I n certain armies, the Medical Service when necessary calls upon soldiers who are not permanently attached to their units, but have undergone special training as stretcher-bearers or medical orderlies. Thus they are sometimes combatants and sometimes medical personnel. This is the case, for example, in certain countries, of members of regimental bands, and in other countries of certain members of the armed forces specially designated in any particular unit. T h e Committee decided that the men concerned should enjoy protection in all its aspects when exercising their special functions. But it did not consider it advisable to give them the advantage of non-captivity. They will thus be prisoners of war, but, whenever possible, they will be allocated for medical duties in the camps. "There can be no question of guaranteeing the same measure of protection to any member of the armed forces who may give treatment to a wounded comrade when occasion arises. T h e great majority of soldiers in all armies at present receive adequate training in first aid; it would give rise to innumerable abuses to provide that all soldiers are entitled to immunity and protection on the field of battle whenever they perform the slightest act falling within the category of medical care." Final Record, IIA, 186, Report of Committee I to the Plenary Assembly. "Ibid., p. 127. Those who framed the present convention thought there was no justification for returning the temporary personnel on the same conditions as permanent personnel. Ibid., p. 195, Report of Committee I. " "Such units must scrupulously obey the Conventions in the same way as the belligerents themselves, and in other respects comply with orders given by the belligerents." Ibid., p. 188.

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Wounded,

Sick, and

Dead

81

T h e neutral government must notify its consent to the adversary of the state which accepts such assistance, and the latter is bound to notify its adversary before making use of it. In no circumstances is this assistance to be considered as interference in the conflict (Article 27). If members of this third category fall into the hands of the adverse belligerent they may not be detained. Unless otherwise agreed, they must be permitted to return to their own country, or if this is not possible, to the territory of the belligerent they were serving, as soon as a route for their return is open and miltary considerations permit. Pending their release they must continue their work under the direction of the belligerent in whose hands they are, preferably caring for the wounded and sick of the belligerent they were serving before taken. O n their departure, they must be allowed to take with them their effects, personal articles and valuables, instruments, arms, and, if possible, means of transportation belonging to them. A l l belligerents must secure to this personnel, while in their power, the same food, lodging, allowances, and pay as are granted to the corresponding personnel of their armed forces. T h e food shall in any case be sufficient in quantity, quality, and variety to keep them in a normal state of health (Article 32). N o members of this category, then, may be retained by their captors to care for the wounded and sick, as may be done with personnel of the first category. iv) It might be mentioned that religious, medical, and hospital personnel w h o fall into enemy hands at sea and are retained to serve the medical and spiritual needs of prisoners of war, are, on landing, subject to the same provisions as retained personnel on land (Article 37, Geneva Convention II, 1949). T h e religious, medical, and hospital personnel of hospital ships and their crews may not be captured during the time they are in the service of the hospital ship, whether or not there are wounded and sick on board (Article 36, ibid.). T h e right of retention, therefore, does not apply to persons coming within the protection of Article 36, but only to the personnel of vessels other than hospital ships. T h e crews of hospital ships, then, are protected from capture under Article 36. Obviously the immunity from capture granted to hospital ships (Article 22, ibid.) would be useless if its crew could be captured. 48 Personnel retained under Article 37 must be put ashore as soon as possible.

48 " W i t h o u t its crew, a hospital ship is useless, and the entire protection granted to its medical personnel becomes inoperative if the crew can be captured." Ibid., p. 203.

82

The Wounded, PROTECTION

OF

M E D I C A L U N I T S AND

Sick, and Dead

ESTABLISHMENTS

i) Fixed establishments and mobile medical units 49 of the Medical Service may in no circumstances be attacked, but must at all times be respected and protected by the belligerents. If they are captured, their personnel must be free to pursue their duties, so long as the capturing power has not itself ensured the necessary care of the wounded and sick in them.80 It is the duty of the responsible authorities to ensure that medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety (Article 19, Geneva Convention I, 1949). T h e protection afforded is against deliberate attack or attack which recklessly disregards their presence. Purely accidental damage, injury, and death to patients or personnel must be accepted as some of the risks of war. 51 ii) Military hospital ships (i.e., ships52 built or equipped by the powers specially and solely for assisting, treating, and transporting the wounded, sick, and shipwrecked) must not be attacked from the land, nor be captured, but shall at all times be respected and protected, on condition that their names and descriptions have been notified to the belligerents ten days before those ships are employed. T h e characteristics which must appear in the notification include registered gross tonnage, the length from stem to stern and the number of masts and funnels (Article 20, Geneva Convention I, 1949, in conjunction with Article 22, Geneva Convention II, 1949). Any hospital ship in a port which falls into the hands of the enemy shall be authorized to leave (Article 29, Geneva Convention II, 1949). Hospital ships used by national Red Cross societies, by officially recognized relief societies, or by private persons of a belligerent power have the same protection as military hospital ships, provided they have an official commission from that power, and the provisions concerning notification have been satisfied. These ships must be provided 19 " T h e terra 'medical units' could only be applied to actual A r m y Medical Services formations which, directly or indirectly, ensure the necessary care of the wounded and sick. T h e y therefore excluded those units or bodies which were only occasionally placed at the disposal of the Medical Service, such as Engineer Units employed in filling ponds, the removal of bushes and undergrowth, etc., in combating malaria." Ibid., p. 193. T h i s provision complements Art. 12, above, p. 74. Cf. U.S. Law 225b. 62 T h e vessel must be a ship, a clear distinction being drawn between hospital ships and lifeboats. Further, the ship must be properly equipped and not merely capable of rescue operations. Final Record, I I A , 202. 50

61

The Wounded,

Sick, and Dead

83

with certificates from the responsible authorities, stating that the vessels have been under their control while fitting out and on departure (Article 24, ibid.). Hospital ships used by national Red Cross societies, officially recognized relief societies, or private persons of neutral countries also have the same protection as military hospital ships, on condition they have placed themselves under the control of one of the warring powers, with the previous consent of their own governments and the authorization of the belligerent concerned, and proper notification has been made (Article 25, Geneva Convention II, 1949). Included in the protection of hospital ships are their lifeboats 53 (Article 26, ibid.). iii) Coastal rescue craft, whether owned by the state or officially recognized lifeboat institutions, must also be respected and protected, as far as operational requirements permit, 54 subject to the conditions set out in the first and third paragraphs of (ii) for state and privately owned vessels. T h e same applies as far as possible to fixed coastal installations used exclusively by these craft for their humanitarian missions (Article 27, ibid.). iv) Medical establishments ashore must not be bombarded or attacked from the sea (Article 23, ibid.). v) T h e protection afforded to fixed medical establishments and mobile medical units by the preceding provisions is lost when they are used to commit, outside their humanitarian duties, acts harmful to the enemy. 55 Before protection ceases, however, due warning must be given, naming in all appropriate cases a reasonable time limit, 56 and only after such warning has remained unheeded does protection lapse (Article 21, Geneva Convention I, 1949). vi) T h e following circumstances do not deprive a medical unit or establishment of protection: a) T h a t its personnel are armed, and use the arms to defend themselves or the wounded and sick in their charge. 68

Hospital ships lose their protection if "they are used to commit, outside their

humanitarian duties, acts h a r m f u l to the enemy." W a r n i n g must, however, be given before protection ceases. See Arts. 34, 35, Geneva Conv. II, 1949. 64

R e g a r d i n g this qualification it was stated: " A belligerent face to face w i t h an

o p p o n e n t in a restricted maritime area would find it difficult to tolerate the traffic of a large n u m b e r of very fast, small craft belonging to the adverse party." Record, 66

Final

I I A , 202, R e p o r t of Committee I.

See, f o r example,

G e r m a n y , L.R.T.W.C.,

Trial XIII,

of Hagendorf 146 (Firing

(1946), U.S. Intermediate from G e r m a n

ambulance

Govmt. bearing

Ct., Red

Cross insignia). al

T o permit the evacuation of the wounded, where circumstances allow the af-

fording of such a time limit. Final

Record,

I I A , 193.

The Wounded,

84

Sick, and Dead

b) T h a t in the absence of armed orderlies, it is protected by a picket, sentries, or an escort. c) T h a t small arms and ammunition taken from the wounded and sick and not yet handed to the proper service, are found in it. d) T h a t personnel and material of the veterinary service are found in it, without forming an integral part of it. e) T h a t its humanitarian activities or those of its personnel extend to the care of the civilian wounded or sick (Article 22). T h e first four circumstances were substantially contained in Article 8 of the 1929 convention, b u t the last is added b y the present convention. B y the first circumstance, it is seen that w h i l e medical personnel m a y not take part in combat they may be armed and use those arms to d e f e n d themselves and their patients. Such defensive action w o u l d usually be against marauders and the like, but, under the terms laid down, the arms could be used to repel an u n l a w f u l attack

on

them by enemy forces. 57 Obviously, however, it w o u l d be best for medical units and establishments to refrain from any use of

arms,

unless forced by sheer necessity. vii) N e w provisions of far-reaching importance are introduced

by

A r t i c l e 23 of the convention in the effort to shield war victims from the i m p a c t of war. T h e s e provide for the establishment of

hospital

zones and localities and m a y be compared with parallel provisions for hospital and safety zones and localities, and neutralized zones, under Articles 14 and 15 of G e n e v a C o n v e n t i o n I V , 1949, that on the protection of civilians. 6 8 T h e steps outlined may be taken in peacetime by parties to the convention, and in wartime by belligerents. T h e y m a y establish in their own territory and, if necessary, i n occupied areas, hospital zones and localities so organized as to protect the w o u n d e d and sick from the effects of war, as well as the personnel entrusted w i t h the organi67 See also Hyde, III, 1870-1871, footnote, which states the injunction in U.S. Rules 181 (b) that "although the sanitary personnel may carry arms for self-defense, they shall not employ such arms against the legitimate enemy forces," is believed to be too sweeping. V.S. Law 2236 now permits the use of arms for protection "against marauders and other persons violating the law of war," but not "against enemy forces acting in conformity with the law of war." 68 Although the provisions are new, the conception behind them is not. " T h e idea of these zones is not a new one, and as far back as 1870 Henry Dunant made vain attempts to persuade the Empress Eugénie to have a certain number of places neutralized and declared 'centres for the wounded.' Since that date, the idea has gradually spread, particularly in the international circles of the military medical services. It has in the fact always been possible to realize this aim simply by grouping together a greater or smaller number of medical establishments. But it is the first time that the notion of hospital zones and localities has been given concrete form in a Convention. T h i s rule is a sign of considerable progress and gives ground for hope." Final Record, IIA, 187, Report of Committee I.

The

Wounded,

Sick, and Dead

85

zation and administration of these zones and localities and with the care of the persons assembled in them. Upon the outbreak and during the course of hostilities, the parties may agree on mutual recognition of the hospital zones and localities created. They may for this purpose implement the provisions of the draft agreement 59 annexed to the present convention, with such amendments as they may consider necessary. T h e protecting powers and the International Committee of the Red Cross are invited by the convention to lend their good offices to facilitate the institution and recognition of these hospital zones and localities (Article 23). BUILDINGS AND M A T E R I A L U N I T S AND

OF

MEDICAL

ESTABLISHMENTS

i) T h e material of mobile medical units of the armed forces which fall into the hands of the enemy, shall be reserved for the care of the wounded and sick, and shall not intentionally be destroyed (Article 33). There is no obligation under the present convention for the enemy to restore such material, representing a change from the provisions of Article 14 of the 1929 convention, by which the enemy was obliged to restore under the same conditions laid down for the return of medical personnel, and as far as possible at the same time as the medical personnel, the equipment, stores, means of transportation and drivers employed, of mobile medical formations. ii) T h e buildings, material, and stores of fixed medical establishments of the armed forces remain, as in the 1929 convention, 60 "subject to the laws of war" when they fall into enemy hands. By this is meant that the captor has no obligation to restore such property to the other side. He can maintain possession of the buildings, and the material and stores become his property, subject to the proviso that neither the buildings, the material, nor the stores may be diverted from their humane purpose as long as they are required for the care of the wounded and sick. In case of urgent military necessity, however, a commander of forces in the field may make use of them for other than medical purposes, provided that he makes previous arrangements for the welfare of the wounded and sick who are nursed in such buildings. T h e material and stores may not be intentionally destroyed (Article 33). in) T h e real and personal property of aid societies which are 69 60

See A p p e n d i x I, below. Art. 15.

The

86

Wounded,

Sick, and Dead

admitted to the privileges of the 1949 convention shall be regarded as private property (the property of the armed forces is, of course, state property). However, the right of requisition of private property which the laws and customs of war recognize that belligerents may exercise must not be exercised in respect of such property of aid societies except in case of urgent necessity, and only after the welfare of the wounded and sick has been ensured (Article 34). MEDICAL

TRANSPORTS

i) Transports of wounded and sick, or of medical equipment, are entitled to the same respect and protection as mobile medical units. 61 When such transports or vehicles fall into enemy hands, they are "subject to the laws of war," becoming the property of the captor, on the condition that he must ensure the care of the wounded and sick in them (Article 35). T h e latter provision represents a complete change from the terms of Article 17 of the 1929 convention, by which medical transports or vehicles were to be restored under the same conditions laid down by that convention (Article 14) for the return of mobile medical formations. If military exigencies demanded, the captor before restoration could use the vehicles in the sector where they were intercepted, but only for medical requirements, and provided he took care of the wounded and sick in them.62 As in the earlier convention, the present convention provides that "civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law" (Article 35). Civilian inhabitants of occupied territory who have been requisitioned may not be retained as prisoners of war if they are captured while so engaged. T h e capturing side could, however, retain them temporarily or requisition their services, if it thought fit, instead of releasing them immediately. 63 T h e requisitioned means of transpor81

A b o v e , pp. 82 f.

82

" A number of rather important alterations have been m a d e to the

Conven-

tions. T h e s e alterations chiefly concern the material and vehicles of mobile medical units and the personnel in charge of ambulance

cars. If

this material

fell

into

enemy hands it was hitherto restored when the personnel was sent back. It seemed impossible to maintain this ruling because of the nature of modern warfare, and also because the whole of the personnel is not necessarily sent back." Final

Record,

I I A , 188, R e p o r t of Committee I. 63

Br.M.M.L.,

chap, xiv, par. 57, n. 4; see Art. 51, Geneva

limitations on the use of services obtained below, pp. 270 f.; also U.S. Law

236b.

by requisition

in

Conv. IV,

1949, for

occupied

territory,

The

Wounded,

Sick, and Dead

87

tation come under the provisions of Article 53 of the Hague Regulations, 1907.64 ii) Medical aircraft, that is, aircraft exclusively employed for the removal of wounded and sick65 and for the transportation of medical personnel and equipment, must not be attacked, but shall be respected by the belligerents, while flying at heights, times, and on routes specifically agreed upon between the belligerents. 66 They must bear, clearly marked, the red-cross emblem (or the red crescent, red lion and sun, in the countries using those emblems)67 on a white ground, together with their national colors, on their lower, upper, and lateral surfaces. They must also bear any other markings or means of identification that may be agreed upon between the belligerents. Unless agreed otherwise, flights over enemy or enemy-occupied territory 68 are prohibited. Medical aircraft must obey every summons to land. In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after examination, if any. In the event of an involuntary landing in enemy or enemy-occupied territory, the wounded and sick,69 as well as the crew of the aircraft shall be prisoners of war. T h e medical personnel must be accorded the rights previously described 70 (Article 36). A n imposed landing in enemy territory must, therefore, be distinguished from an involuntary landing. In the former the aircraft and its occupants must be allowed to resume flight after inspection by the enemy. Under the 1929 convention (Article 18), in the event of imposed or involuntary landings of medical aircraft on enemy terBelow, pp. 290-291, 296. And shipwrecked. Art. 39, Geneva Conv. II, 1949. "There was general agreement that in the present conditions of aerial warfare, the red cross on a white ground no longer constituted an easily recognizable emblem, and therefore no longer afforded effective protection. Aircraft at present speeds can only recognize each other by their shape; moreover, the most distinctive signs are quite unrecognizable at night, and a fortiori by wirelessly [sic] controlled projectiles. A new conception was therefore embodied in the Conventions; belligerents are required to agree between themselves on the routes to be followed by military aircraft, and also the altitude and times of flight. Aircraft will only be entitled to respect in so far as there has been previous agreement on these points." Final Record, IIA, 187, Report of Committee I. w F o r the Red Shield of David, used by Israel, see below, p. 88. 118 " T h e Committee was not prepared to give a precise definition of the notion of 'enemy territory, or enemy-occupied territory.' It did not regard as part of its business the definition of the rules applying to territorial waters or so-called battle zones." Final Record, IIA, 205, Report of Committee I. " S e e above, p. 87, n. 65. 70 Above, pp. 77 f. 64

05

88

The

Wounded,

Sick, and Dead

ritory not only were the medical personnel entitled to be returned to their own side, but also the pilot, mechanics, and wireless-telegraph operators were to be sent back subject to the condition that they were to be employed until the close of hostilities in the medical service only. T h e aircraft and material enjoyed the treatment accorded to other medical transports under Article 17 of that convention. 71 iii) T h e right of medical aircraft to fly over, and land on, neutral territory is discussed in chapter xiv. THE

DISTINCTIVE E M B L E M

OF THE M E D I C A L SERVICES

i) T h e emblem and distinctive sign of the Medical Service of armed forces is a red cross on a white ground. This is adopted as a compliment to Switzerland, the site of the Geneva Conventions, and is formed by reversing the federal colors of that country. However, also recognized are the emblems of the red crescent or the red lion and sun on a white ground when used by the countries which employ them in place of the red cross (Article 38). O n signing the convention, Israel gave notice that it would use the Red Shield of David as the emblem and distinctive sign of the medical services of her armed forces. 72 ii) T h e emblem must be displayed, under the direction of the competent military authority, on the flags, armlets, and on all equipment employed in the Medical Service (Article 39). iii) T h e personnel belonging to the first and third categories described earlier 73 must wear affixed to the left arm, a water-resistant armlet bearing the distinctive emblem, issued and stamped by the military authority. Such personnel, in addition to wearing an identity disc,74 shall also carry a special identity card bearing the distinctive emblem. This card shall be water-resistant, and of pocket size. It must be worded in the national language, mentioning at least the full name, date of birth, rank, and service number of the bearer, and stating in what capacity he is entitled to the protection of this convention. It must also bear a photograph of the owner and either his signature or fingerprints or both. It must be embossed with the stamp of the military authority. T h e identity card must be uniform throughout the same armed forces and, as far as possible, of a similar type in the armed forces of Above, Geneva 73 Above, "Above, 71

73

p. 86. Conventions . . . , p. 241. pp. 77-78, 80-81. p. 75.

The

Wounded, Sick, and Dead

89

all parties to the convention. 75 Belligerents must inform each other at the outbreak of hostilities of the model they are using. T h e cards should be made out, if possible, at least in duplicate, one copy being kept by the home country. In no circumstances may the personnel be deprived of their insignia, identity cards, or the right to wear the armlet. In case of loss they are entitled to receive duplicates of the cards and to have insignia replaced (Article 40). T h e personnel of the third category, 76 recognized aid societies from neutral countries, must be furnished with the described identity cards before they leave the neutral country to which they belong (Article These provisions are more detailed than those corresponding in the 1929 convention. T h e Diplomatic Conference of Geneva which formulated the 1949 convention recommends that states and national Red Cross societies take all necessary steps in peacetime to have medical personnel provided with the badges and identity cards prescribed, because such provisions were only partially observed during World War II, thus creating serious difficulties for many members of that personnel. 78 iv) T h e personnel of the second category 79 must wear, but only while carrying out medical duties, a white armlet bearing in its center the distinctive sign in miniature. This armlet must be issued and stamped by the military authority. T h e military identity documents carried by this personnel must specify what special training they have received, the temporary character of the duties they are engaged upon, and their authority for wearing the armlet (Article 41). v) T h e Red Cross flag, or its recognized equivalents, may be hoisted only over medical units and establishments entitled to be respected under the convention, and only with the consent of the military authorities. In mobile units, as in fixed establishments, the Red Cross flag may be accompanied by the national flag of the belligerent to whom they belong. (Under Article 22 of the 1929 convention it was 76 Geneva Conventions . . . , p. 53, where in Annex II to the convention a model identity card is shown. 76 Above, pp. 80-81. " T h e reason why identity cards must be furnished before they leave the neutral country is: " T h e y may indeed fall into the hands of the adverse Power before reaching the country to which they are bringing assistance: in this case, their position would be very uncertain if no official document attesting their status were in their possession." Final Record, IIA, 188, Report of Committee I. ™ Resolution 4 of the Diplomatic Conference of Geneva, 1949. Geneva Conventions . . . , p. SI. " A b o v e , pp. 79-80.

The Wounded,

9°

Sick, and Dead

obligatory for fixed medical establishments to display their national flag.) Nevertheless, medical units which have fallen into enemy hands must not fly any flag other than the Red Cross flag. So far as military considerations permit, the distinctive emblems indicating medical units and establishments must be made clearly visible to the enemy land, air, or naval forces, to obviate the possibility of any hostile action (Article 42). vi) T h e medical units belonging to neutral countries, authorized under the conditions previously discussed,80 must fly, along with the Red Cross flag, the national flag of the belligerent they are serving, if that belligerent elects to fly its flag over its medical units and establishments. They may also fly their own national flag on all occasions, unless the responsible military authorities issue orders to the contrary, and this applies even if they fall into the hands of the opposing belligerent (Article 43). Under Article 23 of the 1929 convention, only the Red Cross flag could be flown if they fell into enemy hands. vii) T h e emblem of the red cross on a white ground (or the recognized equivalents) may only be employed either in peace or war to indicate or protect the medical units, establishments, personnel, and material protected by this 1949 convention and other conventions dealing with similar matters (e.g., Geneva Conventions II and IV of 1949 and the earlier Geneva conventions). T h e national Red Cross and other voluntary aid societies described in the first category earlier 81 have the right to use the emblem for the purpose of obtaining the protection of the convention only within the framework of the preceding sentence. However, certain exceptions are permitted to the use of the emblem: a) National R e d Cross

(Red Crescent, R e d L i o n and Sun) societies may, in time

o£ peace, in accordance with their national legislation, make use of the n a m e and emblem of the R e d Cross for their other activities which are in conformity with the principles laid down by the International R e d Cross conferences. W h e n

those

activities are carried out in wartime, the conditions for the use of the e m b l e m shall be such that it cannot be considered as conferring the protection of the convention; the emblem shall be comparatively small in size and may not be placed on armlets or on the roofs of buildings. b) T h e International R e d Cross organizations and their authorized personnel shall be permitted to make use, at all times, of the emblem of the R e d Cross on a w h i t e ground. c) As an exceptional measure, in conformity with national legislation and with the express permission of one of the national societies, the e m b l e m may be employed in time of peace to identify vehicles used as ambulances and to mark the 80

A b o v e , pp. 80-81.

81

Art. 26 of the present convention, above, pp. 77-78.

The Wounded,

Sick, and Dead

91

position of aid stations exclusively assigned to the purpose of giving free treatment to the wounded or sick (Article 44).

T h e Diplomatic Conference of Geneva, 1949, noted that misuse has frequently been made of the Red Cross emblem, and recommends that states take strict measures to ensure that it (and the recognized equivalents) is used only within the limits prescribed by the Geneva Conventions, to safeguard its authority and protect its high significance. 82 viii) T h e hospital ships and coastal rescue craft described earlier 83 must be distinctively marked in the following fashion. All exterior surfaces shall be white, and one or more dark red crosses (red crescents, red lions and suns), as large as possible, shall be painted and displayed on each side of the hull and on the horizontal surfaces, so placed as to afford the greatest possible visibility from the sea and the air. All hospital ships must make themselves known by hoisting their national flag and further, if they belong to a neutral state, the flag of the belligerent whose direction they have accepted. A white flag with a red cross shall be flown at the mainmast as high as possible. Lifeboats of hospital ships, coastal lifeboats and all small craft used by the Medical Service shall be painted white with dark red crosses prominently displayed and shall, in general, comply with the identification system prescribed for hospital ships. T h e ships and craft, which may wish to ensure by night and in times of reduced visibility the protection to which they are entitled, must, subject to the assent of the belligerent controlling them, take the necessary measures to render their painting and distinctive emblems sufficiently apparent. 84 T h e belligerents must try to agree on the use of the most modern methods available to facilitate the identification of hospital ships. T h e described distinguishing signs can only be used, in peace or war, for indicating or protecting the ships mentioned, except as may be provided in any other international convention or by agreement between all belligerents concerned (Articles 43 and 44, Geneva Convention II, 1949). T h e Diplomatic Conference of Geneva, 1949, desirous of securing the maximum protection for hospital ships, expressed the hope that all parties to this convention would arrange that, whenever practica82 Resolution 5 of the Diplomatic Conference of Geneva, 1949. Geneva Conventions . . . , p. 21. 83 Arts. 22, 24, 25, and 27, Geneva Conv. II, 1949; above, pp. 82-83. 84 No particular system of lighting is prescribed. Final Record, IIA, 205, Report of Committee I.

g2

The

Wounded,

Sick, and Dead

ble, such ships shall frequently and regularly broadcast particulars of their position, route, and speed. 85 EXECUTION

OF THE

CONVENTION

i) Each party to a conflict, acting through its commander in chief, must ensure the execution of the provisions of the convention and provide for unforeseen cases in conformity with the general principles of the convention (Article 45). ii) Reprisals against the wounded, sick, personnel, buildings, or equipment protected by the convention are prohibited (Article 46).86 iii) T h e parties to the convention undertake in peace and in war to disseminate the text of the convention as widely as possible in their countries, in particular to include its study in military and civil instruction so that its principles may be known to the entire population, especially the armed fighting forces, the medical personnel, and the chaplains (Article 47). iv) Parties must communicate to one another through the Swiss Federal Council and, during hostilities through the protecting powers, the official translations of the convention, and the laws and regulations which they adopt to ensure its application 87 (Article 48). REPRESSION

OF ABUSES AND INFRACTIONS

OF THE CONVENTION

88

i) T h e states which are parties to the convention undertake to enact any legislation necessary to provide effective penal sanctions 89 for persons committing, or ordering to be committed, any grave breaches of the convention. Such grave breaches are defined as 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, willfully causing great 85 Resolution 7 of the Diplomatic Conference of Geneva, 1949. Geneva Conventions . . . , p. 22. 88 Reprisals are similarly forbidden against shipwrecked persons, and the personnel, vessels, and equipment protected by Geneva Conv. II, 1949 (Art. 47). 87 A recommendation was made that all countries using the same official language, which was neither French nor English, would agree to draw up a common translation of the conventions. Final Record, IIB, 112, Report of Special Committee of Joint Committee. 88 Similar provisions for the repression of abuses and infractions are contained in Geneva Conv. II, 1949; see Arts. 44, 45, 50-53. 89 Cf., Art. V of the Genocide Convention, 1948, from which the wording was borrowed. Final Record, IIB, 115.

The Wounded,

Sick, and Dead

93

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. 90 Each contracting party 91 is under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and to bring them, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand them over 92 for trial to another party concerned, providing such party has made out a prima facie case.93 Further, apart from the grave breaches mentioned above, each party must take the necessary measures for the suppression94 of all other acts contrary to the convention provisions. In all circumstances, the accused persons must benefit by safeguards of proper trial and defense, which shall not be less favorable than those provided by Article 105 and those following of Geneva Convention III, 1949, Relative to the Treatment of Prisoners of War 9 5 (Articles 49 and 50). These details concerning the definition and prosecution of grave breaches are entirely new to this Convention, 96 as are the provisions for the defense of the accused. 90 T h e convention does not deal with questions of "complicity, attempted violation, duress or legitimate defense or the plea 'by orders of a superior.' T h e s e should be left to the judges who would apply the national laws." Loc. cit. n T h i s includes not only contracting parties that are parties to the conflict, but also those who are neutral. " T h e principle of universality should be applied here. T h e Contracting Party in whose power the accused is, should either try him or hand him over to another Contracting Party. T h e President [of the Special Comm u t e of the Joint Committee, Bolla, Switzerland] was of the opinion that a neutral State did not violate its neutrality by trying or handing over an accused, under an international obligation." Ibid,., p. 116. Cf. Br.MM.L., Pt. I l l , pars. 282, n. 2; 671, n. 2. 62 T h i s term was used in preference to "extradition" because of the large variety of extradition laws and treaties. " T h e notion 'handing over' was a notion of customary international law in so far as it was extensively practised by States after the last war [World W a r II] in connection with the activities of the United Nations W a r Crimes Commission," Final Record, IIB, pp. 116-117. 83 Cf., the use of this term by the United Nations W a r Crimes Commission. "It meant there that the State asking for the accused to be handed over had to provide statements that would satisfy the Commission (or in this case the Detaining Power) that a finding of guilt to the charges against the accused was highly probable." Ibid., p. 117, Report of Special Committee of Joint Committee. M By this word "it was intended to signify that all necessary measures would be taken to prevent a recurrence of acts contrary to the Convention." Ibid., p. 133, Report of Joint Committee. 96 Below, pp. 140 f. 98 " T h e large-scale trial and punishment of Axis war criminals for major violations of the pre-existing Hague and Geneva Conventions, and of what now consti-

94

The

Wounded,

Sick,

and

Dead

ii) N o p a r t y to the c o n v e n t i o n w i l l b e a l l o w e d to absolve itself o r a n y other p a r t y of a n y liability w h i c h either of them m a y h a v e inc u r r e d in respect of such g r a v e breaches of the c o n v e n t i o n 9 7

(Arti-

cle 5 1 ) . iii) If a belligerent requests, a n i n q u i r y m u s t b e instituted

con-

c e r n i n g a n y alleged v i o l a t i o n of the convention. T h e p r o c e d u r e f o r such a n i n q u i r y is left to b e d e c i d e d b y the parties concerned, b u t failing agreement

they s h o u l d

choose a n

umpire who

will

decide

u p o n the p r o c e d u r e to b e f o l l o w e d . O n c e a v i o l a t i o n is established, the belligerents m u s t p u t a n e n d to it a n d repress it w i t h the least possible delay ( A r t i c l e 5 2 ) . T h e provision c o n c e r n i n g an u m p i r e is n e w . iv) T h e provisions of the 1 9 2 9 c o n v e n t i o n w i t h certain exceptions, the use of " R e d C r o s s " or " G e n e v a C r o s s " individuals,

( A r t i c l e 28) p r o h i b i t i n g ,

the e m b l e m o r designation

of

(or the recognized equivalents)

by

societies, firms or companies,

p u b l i c or private,

other

t h a n those entitled u n d e r the c o n v e n t i o n , are repeated in substance b y the present c o n v e n t i o n ; as are the restrictions o n the use of the Swiss coat of arms (Articles 5 3 a n d 54). tute the basic principles of the Civilian Convention, made it inevitable that the 1949 Conventions should deal with the trial and punishment of possible violations of the conventions." Yingling and Ginnane, " T h e Geneva Conventions of 1949," 46 A.J.I.L. 424. m " T h i s [article is] a logical consequence of the preceding Article. T h e State remained responsible for breaches of the Convention and could not refuse to recognize its responsibility on the ground that the individuals concerned had been punished. There remained, for instance, the liability to pay compensation." Final Record, I I B , 118, Report of Special Committee of Joint Committee. Further, the provision is "intended to render null and void, in advance, any contractual exemption by which a victor State could prevail upon the conquered State to cease to hold the victor responsible for any violations of the Conventions committed by the organs of the latter; any clauses of this kind might render useless the prosecution of individual guilty persons, for where a State has obtained a promise that it shall not be held responsible, it would be extremely difficult to condemn an individual agent acting under its orders. This provision was the only means of ensuring that the compulsory character of the prosecution, as proclaimed in the preceding Article, should continue in force. T h e scope of this Article is comparatively restricted. It does not cover special financial arrangements under which a State can finally liquidate a claim to damages by an agreed lump sum payment or a settlement in compensation." Ibid.., p. 133, Report of Joint Committee.

V P R I S O N E R S OF

WAR

INTRODUCTORY " T h e principles of general international law on the treatment of prisoners of war . . . since the 18th century . . . have gradually been established along the lines that war captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war. T h e principle was developed in accordance with the view held by all armies that it was contrary to military tradition to kill or injure helpless people." 1 So stated a high German officer of World War II in futile protest to his superiors against the barbarous decrees of the German high command for the treatment of Soviet prisoners of war. However, his words found vindication when the Nuremberg Tribunal which tried the major German war criminals approved his statement, and declared it correctly stated the legal position of prisoners of war; a position which exists independently of international conventions which bind contracting states individually, such as the Geneva Convention on the treatment of prisoners of war. T h e humane treatment of prisoners of war is, in fact, one of the chief characteristics of civilized warfare. T h e rules of international law forbid the massacre, enslavement or holding to ransom which once were the lot of war captives. T h e modern laws of war on the treatment of prisoners of war are now mostly contained in the Geneva Convention Relative to the Treatment of Prisoners of War, 1949 (referred to in these pages as 1 Statement of Admiral Canaris, head o£ the German counter-intelligence service, cited in Nuremberg Judgment, pp. 61-62.

Prisoners

96

of War

Geneva Convention III, 1949).2 T h i s convention was signed by sixtyone states and replaces the earlier Geneva Convention of 1929 on the same subject, in relations between the parties to the present convention. 3 However, until ratification a signatory is technically not bound by the convention, and although the convention has been in force since October 21, 1950, a minority of its signatories have still to deposit such ratifications 4 while other, nonsignatory, states have still to accede to the convention. It will, therefore, be convenient in discussing the present convention to note material variations between it and the earlier convention. In general, the present convention is much fuller and more detailed in its provisions than the earlier. However, as pointed out above, principles of general international law on the treatment of war prisoners exist independently of their codification in international conventions, which are an expression of such principles. T h e r e is no doubt that the world will expect the belligerents in any future war to comply with the norms laid down by so many nations in this most modern convention, which expresses the present standard in such matters, whether or not belligerents are parties to it. 5 T H E PROVISIONS OF G E N E V A C O N V E N T I O N III, 1949 THE

PERSONS AND

CIRCUMSTANCES

TO W H I C H THE CONVENTION

APPLIES

i) Just as Geneva Conventions I and II, 1949, which are concerned with the wounded, sick and shipwrecked, the present convention 2 By Art. 135, the convention is stated to be complementary to chapter ii of the H a g u e Regulations, 1907, b u t that whole chapter has been substantially incorporated in the present convention with the exception of some parts of Arts. 11 and 12. Some of the rules relating to the treatment of prisoners of war by neutral powers are contained in chapter ii of H a g u e Convention V, 1907, that respecting the Rights and Duties of Neutral Powers and Persons in W a r on L a n d ; see p. pp. 561 f., below. Geneva Convs. I and II also have provisions w h i c h relate to prisoners of war. 8 A r t . 134, Geneva Conv. I l l , 1949. 4 U p to and including May, 1958, 67 states had ratified or acceded to the convention. See Statements of Treaties and International Agreements, N o v . 1950May, 1958, U . N . Docs. S T / L E G / S E R . A / 4 5 - 1 3 5 , N e w York. In negotiations on prisoners of war during the Korean war, the N o r t h Koreans and Chinese Communists on the one side and the U n i t e d States on the United Nations side relied on provisions of Geneva C o n v . I l l , 1949, as did the U.S.S.R. i n debates of the United Nations at New York. Y e t the two former governments h a d not adhered formally to the convention and the two latter, although signatories of the convention, had not yet ratified it. Obviously, all these governments consider that the convention expresses binding law irrespective of treaty obligation. For immediate force of ratifications and accessions, see A r t . 141; cf. p. 67, n. 4. "See also A r t . 142, Geneva Conv. I l l , 1949.

Prisoners

of War

97

applies to all armed conflicts between parties to the convention, whether war has been declared or not, and even if one of the parties refuses to recognize a state of war. It also applies to all partial or total occupations of the territory of a party, even if the occupation is not resisted. T h e parties undertake to respect and ensure respect for the convention in all circumstances, including those conflicts in which one or more of the participants are not parties to this convention. In the latter cases, parties are bound by the convention in their mutual relations; and also as regards the nonparties, provided the latter in fact accept and apply its provisions (Articles 1 and 2).6 ii) Also as in Geneva Conventions I and II, 1949, a party may withdraw from the present convention, but such a denunciation, socalled, of the treaty, if made during a conflict in which the party is involved, cannot take effect until peace has been concluded and after operations connected with the release and repatriation of the persons protected by the convention have been terminated. Furthermore, the denunciation "shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience." 7 In any case, the denunciation has effect only in respect of the party denouncing (Article 142). T h i s article reminds states that the obligations of international law regarding prisoners of war must be met apart from the contractual bond voluntarily assumed by parties to the convention. Such a reminder was not contained in the corresponding provision (Article 96) of the 1929 convention. iii) T h e following categories become prisoners of war under the provisions of this convention when they fall into the power of the enemy: a) Members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. 8 8 See above, pp. 68-69, for discussion of the exclusion of a "general participation clause." 7 T h e extract cited is derived from the de Martens clause in the preamble to Hague Conv. IV, 1907. Final Record, IIB, 113. See also above, p. 6. 8 A n enemy alien in the territory of a belligerent w h o is interned purely in his civil capacity and in no sense as a member of the enemy forces participating in the war, is not entitled to be treated as a prisoner of war, in contradistinction to a civilian internee, merely because he possesses an inactive rank in the enemy forces, e.g., as a reserve officer. T h e same applies to such an enemy alien convicted and imprisoned for purely civil crimes. Hackworth, V I , 275.

Prisoners

98

of

War

b) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the four conditions mentioned earlier. (See in chapter iii, "Irregular Armed Forces.") c) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. 9 d) Persons who accompany the armed forces without actually being members, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units, or of services responsible for the welfare of the armed forces, provided they have received authorization from the armed forces which they accompany in the form of an identity card of the type laid down by the convention. 10 e) Members of crews (including masters, pilots, and apprentices) of the merchant marine 1 1 and the crews of civil aircraft of the parties to the conflict, w h o do not benefit by more favorable treatment under any other provisions of international law. 12 f) Inhabitants of nonoccupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war (Article 4A).

A l l classes of lawful belligerents previously discussed, 13 therefore, come within the scope of the convention, as do two categories of noncombatants, (d) and (e). T h e resistance movements referred to in See above, p. 58; below, p. 627. See model identity card in A n n e x I V A to present convention. Geneva Conventions . . . (U.S. Dept. of State Pub. 3938, Gen. For. Pol. Ser. 34, 1950), p. "5511 T h i s does not include coastal fishermen and persons engaged in petty local navigation, who are protected from capture by Art. 3, Hague Conv. XI, 1907, provided they take no part in hostilities. Vessels charged with religious, scientific, or philanthropic missions are likewise exempt from capture; Art. 4, ibid. 12 T h i s refers particularly to Hague Conv. XI, 1907, that Relative to certain Restrictions on the Exercise of the Right of Capture in Maritime W a r . Final Record, IIA, 562, Report of Committee II. Hague Conv. X I , 1907, provides that neutral nationals who are members of the crew of an enemy merchant ship captured by a belligerent are not made prisoners of war. However, a neutral captain or officer must give a formal promise in writing not to serve on an enemy ship while the war lasts (Art. 5). T h e captain, officers, and crew who are enemy nationals are not made prisoners of war, provided they give a written promise not to engage, while hostilities last, in any service connected with the operations of the war (Art. 6). T h i s promise includes "both service on board a ship of war as well as in the arsenals or land army or any other military or naval service." Higgins, The Hague Peace Conferences, p. 406. T h e foregoing provisions do not apply to ships taking part in hostilities (Art. 8). T h i s includes both direct or indirect participation and is a question of fact in each case. Higgins, op. cit., p. 406. However, this convention only applies between the contracting powers and then only if all belligerents in the conflict are parties to the convention (Art. 9). 13 Above, pp. 55 f. 8

10

Prisoners

of War

99

Category (b) are included for the first time, as are the forces comprised in Category (c). A l l categories here enumerated from Article 4A of the present convention are reproduced in corresponding articles of Geneva Conventions I and II, 1949 (Article 13 in each convention). iv) Further, likewise to be treated as prisoners of war under the present convention, are persons belonging, or having belonged, to the armed forces of an occupied country, if the occupying power considers it necessary by reason of such allegiance to intern them. T h i s the occupying power may do, even though it has originally liberated such persons while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment—Article 4B (1). 14 T h i s provision was not contained in the 1929 convention. 1 5 v) T h e wounded, sick, and shipwrecked of the categories contained in section iii w h o fall into enemy hands become prisoners of war, subject to the special safeguards laid down in Geneva Convention I, 1949 (Articles 14 and 12 of Geneva Convention I, 1949). 16 vi) Deserters from the enemy do not thereby lose their right to be treated as prisoners of war if they fall into the hands of the opposing side. 17 However, deserters and subjects of a belligerent w h o serve in the armed forces of the enemy cannot claim the status of prisoners of war w h e n they fall into the hands of their own country. 1 8 T h e y are traitors and liable to be punished as such. T h e s e persons, not being entitled to claim the privileges of lawful combatants, may be seized and punished even when they appear under a flag of truce. T e r m s may, however, be specially negotiated for them. 1 9 vii) Civil officials and diplomatic agents attached to the army will come under the description of persons accompanying the armed forces — s e e iii (d), above. It is contrary to usage, however, to take as pris14 See In re Siebers (1949), Special Ct. of Cassation, Holland, I.L.R., 1950, Case No. 127, and note thereto, for controversy regarding the status of such persons during W o r l d W a r II. 15 Art. 4B (2) of Geneva Conv. I l l , 1949, specifies that belligerent forces of the categories enumerated in Art. 4 who are interned by neutral or nonbelligerent powers shall be treated as prisoners of war; see below, pp. 555-557. M Above, pp. 73-74. 17 Br.M.M.L., chap, xiv, par. 56 (e); Fauchille, II, par. 1105. Not defectors, however; see Br.M.M.L., Pt. I l l , par. 126. 18 O n the other hand, a member of the armed forces of a belligerent who is captured by the enemy and who claims citizenship in the enemy state cannot object to being held as a prisoner of war. In re Territo (1946), 156 Fed. R e p t . 2d 142 (U.S. Circuit Ct. of Appeals, Ninth Circuit); Ann. Dig., 1946, Case No. 117. " O p p e n h e i m , II, 213, 214; Br.M.M.L., chap, xiv, par. 36. See Hyde, III, 1866.

loo

Prisoners of War

oners military attachés or diplomatic agents of neutral Powers who accompany the army of a belligerent, or are found within a captured fortress, provided they possess proper papers of identification and take no part in the hostilities. Their captors may order them out of the theater of war and, if necessary, hand them over to the ministers of their countries.20 viii) High civil functionaries such as the sovereign and members of the royal family of a monarchical state, the head of a republican state, and the ministers who direct the policy of a state are liable to be made prisoners of war whether accompanying an army or not. 21 ix) Civilian inhabitants of an occupied territory whose services are requisitioned, impressed, or hired by the occupying army, or who voluntarily perform such services, and are captured while so engaged, do not become prisoners of war. If they fall into the hands of the belligerent state of which they are nationals, they will naturally be treated according to the domestic law of that State; otherwise they may be retained temporarily, their services requisitioned, or they may be released, as is thought fit.22 x) When a hostage is accepted, so far as hostages are still permitted, he must be treated in all respects as a prisoner of war. 23 It is to be noted that the taking of hostages from among the civilian population is prohibited (Article 34, Geneva Convention IV, 1949). xi) As has been described,24 permanent medical personnel and chaplains attached to the armed forces do not become prisoners of war when they fall into enemy hands, but must be returned, with the exception of those required to minister to prisoners of war. The retained personnel are also not to be considered prisoners of war, although they must receive as a minimum the benefits and protection which the present convention confers on prisoners of war. Arrangements for their relief should be made by the belligerents concerned (Articles 4C and 33 of the present convention; Articles 24, 26, 28, 30, 31 of Geneva Convention I, 1949). xii) The provisions of the convention apply to prisoners of war from the time they fall into the power of the enemy25 until their final 20

Br.MM.L., chap, xiv, par. 58; U.S. Rules 77; Oppenheim, II, 279. BrM.M.L., chap, xiv, par. 57; U.S. Rules 76 (e). Br.MM.L., Pt. Ill, par. 19 n. 1, qualifies their status on capture as "not clear"; see also, ibid., par. 127. 22 Br.MM.L., chap, xiv, par. 57, n. 4. For the position of the civilian population in time of war, see chap, vi, below. ^ K u h n , " T h e Execution of Hostages," 36 A.J.l.L. 273, citing Hall, International Law, 5th ed., p. 418; U.S. Rules 76 h; BrM.M.L., chap, xiv, par. 461. 24 Above, pp. 77-79; 81, where the position in regard to capture of religious, medical and hospital personnel of hospital ships and their crews is also set out. 25 This term is wider than "captured." See Final Record, IIA, 237. U.S. Law 84b 21

Prisoners

of War

101 26

release and repatriation. Where there are any doubts concerning the status of captured persons who have committed belligerent acts, such persons must enjoy the protection of the convention, that is, be treated as prisoners of war, until a competent tribunal determines their actual status (Article 5). It is for a competent tribunal to decide the question, not the troops effecting the capture. Summary execution is absolutely forbidden. 27 xiii) In addition to various agreements expressly provided for by the convention, the parties may conclude other special agreements. However, no special agreement can adversely affect the situation under the convention of prisoners of war, nor restrict the rights it confers on them. 28 Prisoners of war must continue to have the benefit of such special agreements for as long as the convention itself is applicable to them, except where express provisions to the contrary are contained in those or later agreements, or where more favorable measures have been taken toward them by one or other of the belligerents (Art. 6). xiv) Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present convention, and by any special agreements (Article 7). 29 states: " A person is considered to have fallen into the power of the enemy when he has been captured by, or surrendered to members of the military forces, the civilian police, or local civilian defense organizations or enemy civilians w h o have taken him into custody." 28 " T h e r e is now therefore no further question of exceptions such as the 1929 Convention mentions in its first Article in relation to persons captured during operations on sea or by air." Final Record, I I A , 563, R e p o r t of Committee II. A r t . 1 of the Geneva (Prisoners of W a r ) Conv., 1929, stated: " T h e present Convention shall apply . . . (2) to all persons belonging to the armed forces of belligerents w h o are captured by the enemy in the course of operations of maritime or aerial war, subject to such exceptions (derogations) as the conditions of such capture render inevitable. Nevertheless these exceptions shall not infringe the fundamental principles of the present Convention; they shall cease from the moment when the captured persons shall have reached a prisoners-of-war c a m p . " Furthermore, the convention of 1949 applies to prisoners of w a r " u n t i l their final release and repatriation." (Italics mine.) T h e prisoners may, therefore, not be deprived of the protection of the convention by being released f r o m custody and arrested. 27

Br.M.M.L., chap, xiv, par. 37; U.S. Rules 13; U.S. Law 7 id. See footnote to corresponding article (Art. 6) of Geneva Conv. I, 1949, above, p. 70, n. 1 2 ; see also the rejection of the purported justification for the employment during W o r l d W a r II of French prisoners of war in G e r m a n armament industry in an alleged agreement between the V i c h y government of France and the G e r m a n government. The Krupp Case (United States v. Krupp, et al.) (1948), U.S. Mil. T r i b . , Nuremberg, L.R.T.W.C., X , 1 4 1 ; The High Command Case (United States v. von Leeb, et al.) (1948), U.S. Mil. T r i b . , Nuremberg, L.R.T.W.C., X I I , 105. 28

29 Prisoners of w a r may not give u p this status for another, e.g., become civilians or enlist in the captor's armed forces. Final Record, I I B , 1 7 - 1 8 . C f . US. Law 87b) Br.M.M.L., Pt. I l l , pars. 1 3 2 , n. 3 (b); 2 8 1 . B u t see A r t . 4 B (1), which contemplates demobilization of prisoners to civilian status in an occupied country during hostilities. Final Record, I I A , 4 3 1 - 4 3 2 , 562.

Prisoners

102

of

War

SUPERVISION BY PROTECTING POWERS AND HUMANITARIAN

ORGANIZATIONS

T h e present convention repeats in substance, and almost verbatim, the provisions in this regard of Geneva Convention I, 1949, which were discussed in chapter iv under this heading, but here with reference to prisoners of war (Articles 8, 9, 10 and 11). T h e Soviet Union, a number of associated powers, and Portugal make the same reservation to Article 10 of the present convention that they make to Article 10 (the corresponding provision) of Geneva Convention I. P R O T E C T I O N OF PRISONERS OF W A R ;

GENERAL

PROVISIONS

i) Prisoners of war are in the hands of the enemy power, not of the individuals or military units that have captured them; and that power is responsible for their treatment, irrespective of any individual responsibilities that may exist. Prisoners of war may only be transferred by the detaining power to a power which is a party to the convention and after the former power has satisfied itself of the willingness and ability of the latter to apply the convention. W h e n prisoners of war are transferred under such circumstances, the responsibility for the application of the convention rests with the accepting power while they are in its custody. If the latter fails to carry out the provisions of the convention in any important respect, the transferring power must, upon notification by the protecting power, take effective measures to correct the situation or must request the return of the prisoners of war. A n y such request must be complied with by the power to which it is addressed (Article 12). T h e provisions concerning transfer are new, and in regard to them the Soviet U n i o n and a number of associated powers have entered reservations to the effect that a transferring power is not freed from responsibility for application of the convention to prisoners while they are in the custody of the accepting power. 30 ii) Prisoners of war must at all times be humanely treated. 31 A n y 30 Geneva Conventions . . . , p. 253. Br.M.M.L., Pt. I l l , pars. 134, 135, points out that the detaining power must be one state, not a group of states. 31 " I t is the duty of all those on w h o m responsibility rests to secure proper treatment of prisoners and to prevent their ill-treatment by establishing and securing the continuous and efficient w o r k i n g of a system appropriate for these purposes. Such persons fail in this duty and become responsible for ill-treatment of prisoners if: (1) T h e y fail to establish such a system; (2) H a v i n g established such a system, they fail to secure its continued and efficient w o r k i n g . " Tokyo Judgment,

Prisoners

of War

103

u n l a w f u l 3 2 act or omission by the detaining power causing their death or seriously endangering their health is prohibited, and will be regarded as a serious breach 3 3 of the present convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental, or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation 3 4 and against insults 35 and public curiosity. Measures of reprisal against prisoners of war are prohibited (Article 13). T h e prohibition against mutilation of, and so-called experimentation on prisoners of war obviously reflects the experience of W o r l d W a r II, w h e n the atrocities of the Germans in this regard formed the subject of some of the postwar prosecutions of war criminals. 36 A commander is not entitled to kill his prisoners to preserve his own forces, even in cases of extreme necessity. Neither may he do so because they slow u p his movements, weaken his fighting force because they require a guard, consume supplies, or appear certain to be set free by their own forces. 37 pp. 29-32, cited in L.R.T.W.C., X V , 73. Hyde, III, 1847, points out that " f r o m the moment of capture until placed in an internment camp, as much as at any subsequent period o£ captivity, a prisoner is likely to be subjected to brutal treatment." T h i s most pertinent observation is amply confirmed by the experiences (inter alia) of World Wars I and II, and the Korean war. 32 Trial L.R.T.W.C., of Weiss and Mundo (1945), U.S. Gen. Mil. Ct., Germany, XIII, 149 (Lawful defense by guards against threatened attack by prisoner of war). " F o r the effect of such breaches, see Arts. 129, 130 of the present convention, below, pp. 152-153. 34 For the liability of the custodian of prisoners of war who releases them to be shot unlawfully, see The Jaluit Atoll Case (Trial of Masuda, et al.) (1945), U.S. Mil. Commission, Marshall Islands, L.R.T.W.C., I, 71; The Dreierwalde Case (Trial of Amberger) (1946), Br. Mil. Ct., Germany, ibid., 81; The Essen Lynching Case [Trial of Heyer, et al.) (1945), Br. Mil. Ct., Germany, ibid., 88. 35 Trial of Tanaka Chuichi, et al. (1946), Australian Mil. Ct., Rabaul, L.R.T.W.C., XI, 62 (Insult to religious feelings—cut off hair and beards of Indian prisoners of the Sikh religion, and forced one to smoke a cigarette—acts forbidden by the prisoners' religion). 30 See The Medical Case (United States v. Brandt, et al.) (1947), U.S. Mil. T r i b . , Nuremberg, TWC, I. 37 Br.M.M.L., Pt. I l l , par. 137; U.S. Law 85. The War Book of the German General Staff, pp. 97-98, claimed that prisoners "can be p u t to death in case of overwhelming necessity, when other means of precaution do not exist and the existence of the prisoners becomes a danger to one's own existence . . . only the duty of self-preservation and the security of one's own State can justify a proceeding of this kind." A notorious instance of W o r l d War II when surrendered prisoners were put to death by German troops was the "Malmedy Massacre" of U.S. prisoners of war in December, 1944, during the Battle of the Bulge, for which the per-

104

Prisoners of War

However, prisoners may be fired on if they offer violence to their guard or to any of the captor's forces or officials; if they attempt to engage in active hostilities in support of their own forces; or if they attempt to escape. Previous summons to desist and to surrender should be given if possible.38 iii) Prisoners of war may not be compelled to serve in the forces of the hostile power. Such compulsion constitutes one of the grave breaches of the present convention referred to in Article 130.39 Article 7 now prohibits prisoners of war from voluntarily enlisting in the enemy forces.40 iv) Prisoners of war are entitled in all circumstances to respect for their persons and their honor. Women must be treated with the regard due to their sex, and must benefit by treatment as favorable as that granted to men. Prisoners of war retain the full civil capacity they enjoyed at the time of their capture, and the detaining power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except so far as the captivity requires (Article 14). Prisoners of war, therefore, retain their civil legal rights, and are not as a class subject to legal disabilities either inside or outside their own country. 41 v) T h e detaining power is bound to provide free of charge for their maintenance and for the medical attention required by their state of health (Article 15). vi) All prisoners of war must be treated alike by the detaining power, without any adverse distinction based on race, nationality, religious belief, political opinions, or similar criteria, subject, howpetrators were afterward condemned tribunals,

sitting at

Dachau,

p. 137. See also Trial

of

Thiele

many, L.R.T.W.C.,

III, 56

surrounded,

wounded

killed

as war criminals b y

Germany; and

(German U.S.

see T e l f o r d

Steinert

United

Taylor,

States

Final

. . . ,

(1945), U.S. M i l . Commission,

troops h i d i n g from U.S. troops, and

prisoner.

military

Report

Accused

convicted

and

Ger-

closely

sentenced

to

death; commuted to life imprisonment); O p p e n h e i m , II, 271, where the opinion is expressed that where the safety of the capturing force is vitally imperiled b y

the

continued presence of prisoners of war, the latter, h a v i n g been disarmed, should be released. Cf. Fauchille, II, par. 1120; Rolin, I, pars. 300, 301. 38

BrM.M.L.,

39

See below, p. 153.

chap, xiv, par. 108a; see also A r t . 42, below, p. 116.

40

See above, note 29. A t t e m p t s by a detaining power to subvert a prisoner from

allegiance to his own power are prohibited; see BrM.M.L., 41

Cf.,

Art.

77,

below.

It

prisoner of war does not Re

Bellatato

United.

also

be

noted:

"The

alter his status as a member

(1946), C t . of Cassation, Italy, Ann.

States Ex

York, Ann.

may

Dig.,

Rel.

Hirshberg

v. Malanaphy

1947, Case N o . 95.

Dig.,

Pt. I l l , par. 281, n. 2 (b). fact of

that

a soldier

his national

1946,

Case

No.

is

a

forces." 129; cf.,

(1947), U.S. Dist. Ct., E . D .

New

Prisoners of War

105

ever, to allowances made by the convention in respect of rank, sex, state of health, age, or professional qualifications (Article 16). CAPTIVITY BEGINNING OF CAPTIVITY

i) Every prisoner, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or, failing this, equivalent information. If, on the other hand, a prisoner willfully does not give these particulars, he may render himself liable to a restriction of the privileges accorded to his rank or status.42 Each belligerent is required to furnish the persons under its jurisdiction who are liable to become prisoners of war with an identity card showing the owner's surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. T h e identity card may also bear the signature or fingerprints, or both, of the owner, as well as any other information the belligerent may wish to add concerning persons in its armed forces. As far as possible the card should measure 6.5 X 10 cm. and be issued in duplicate. T h e prisoner must show the card upon demand, but it may in no case be taken away from him. No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information. 43 Prisoners who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment. Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, must be handed over to the medical service. T h e identity of such prisoners shall be established by all possible means, short of those described in the foregoing paragraph. T h e questioning of prisoners must be carried out in a langauge which they understand (Article 17). T h e 1929 convention did not require a prisoner to give his date of birth, which has been added to facilitate identification. 44 T h e regulation concerning identity cards is also new. Although a prisoner is bound to give only the information set out in Article 17, his captors' For disciplinary sanctions, see below, pp. 134 £. See Trial of Killinger, et al. (1945), Br. Mil. Ct„ Germany, L.R.T.W.C., III, 67; Trial of Yoshio Makiiawa (1946), U.S. Mil. Commission, Shanghai, L.R.T.W.C., XV, 101. 44 Final Record, IIA, 250. 42 43

106

Prisoners

of War

right of interrogation is not limited to those matters. T h e prisoner is, however, not bound to answer any further questions. A prisoner is not to be punished for giving false information about his own army in reply to questions. 45 ii) T h e following articles must remain in the possession of prisoners of war: all effects and articles of personal use, except arms, horses, military equipment, and military documents; metal helmets, gas masks, and the like articles issued for personal protection; effects and articles used for their clothing and feeding, even if such effects and articles belong to their regulation military equipment; badges of rank and nationality, decorations, and articles having above all a personal or sentimental value. A t no time should prisoners of war be without identity documents. T h e detaining power must supply such documents to those who possess none. Sums of money carried by prisoners of war may not be taken away from them except by order of an officer, and after the amount and particulars of the owner have been recorded in a special register and an itemized receipt has been given, legibly inscribed with the name, rank, and unit of the person issuing the receipt. Sums in the currency of the detaining power, or which are changed into such currency at the prisoner's request, must be placed to the credit of the prisoner's account. 46 Articles of value may only be withdrawn from prisoners by the detaining power for reasons of security, and when withdrawn the same procedure as for money impounded must be applied, that is, order of an officer, entry in the special register, and receipt of acknowledgment. Such impounded articles of value and money in currency other than that of the detaining power which the owners have not asked to be converted into the latter's currency, must be kept in the custody of the detaining power and returned in their initial shape to the prisoners of war at the end of their captivity (Article 18). T h e present convention, then, draws a distinction, not previously applied, between the handling of two types of currency, namely, currency not that of the detaining power, and currency of that power, including foreign currency converted into the latter at the request of the owner. T h e first kind must be returned as received, the second is credited to the prisoner's account, which is subject to regulations which are dealt with later. 47 45 Br.MM.L.,

chap, xiv, pars. 60 (c), 147. See Art. 64, below, p. 124. " See "Financial Resources of Prisoners of War," below.

43

Prisoners

of War

107

Prisoners are not entitled to retain money and objects which are stolen, or property, other than that enumerated, which belongs to their government. 48 T h e captors are not responsible for personal belongings which the prisoners or the captors cannot take with them, and are abandoned. 49 Prisoners may be allowed on surrender to keep things liable to seizure. For example, officers may be permitted to keep their swords.50 iii) Prisoners of war must be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger. Only those who, owing to wounds or sickness, would run greater risks by being evacuated than by remaining where they are, may be temporarily kept back in a danger zone. Prisoners must not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone (Article 19). iv) T h e evacuation 51 of prisoners of war must always be effected humanely and in conditions similar to those for the forces of the detaining power in their changes of station. T h e latter power must supply them with sufficient food, drinkable water, necessary clothing, and medical attention, take suitable precautions to ensure their safety during evacuation, and establish as soon as possible a list of those who are evacuated. If during evacuation the prisoners of war must pass through transit camps, their stay in such camps must be as brief as possible (Article 20).®2 There is no mention in this convention of the provision of the 1929 convention (Article 7) which places a specific limit of 20 kilometers per day on an evacuation by foot except where the necessity for reaching water and food depots requires longer stages.

48

BrM.M.L.,

a

Ibid.., par. 140.

Pt. I l l , par.

Br.MM.L., 51

141, notes

1, 2.

chap, xiv, par. 65.

T h i s applies equally to evacuation by land or sea; see Trial

and

Mitsugu

Fukuda

(1947), Australian

of Kishio

Uchiyama

M i l . Ct., Singapore, L.R.T.W.C.,

X I , 80

(Inhumane treatment of prisoners of war on a voyage from Singapore to Japan). 62

For ill-treatment of prisoners of war during evacuation or transfer, see

of Heering prisoners

(1946), Brit. Mil. Ct., Germany, L.R.T.W.C., of

war

during

evacuation

with

sufficient food,

adequate

billets,

medical supplies, marched them excessive distances and actively ill-treated Trial

of Willi

Mackensen

Trial

X I , 79 (Failure to supply

(1946), Brit. M i l . Ct., G e r m a n y , ibid.,

p. 81

any

them);

(Ill-treat-

m e n t of prisoners of war on a forced march from Poland to Germany; prisoners h a d little

food, no cooking

facilities, no heating

in

billets,

no

medical

least thirty prisoners died, one was shot dead and one wounded); Trial Yamamoto,

et al.

(1946), Australian M i l . Ct., R a b a u l , L.R.T.W.C.,

supplies, of

at

Shoichi

X I , 80 (Long

forced marches of prisoners of war under difficult conditions w h e n sick and underfed, m a n y died).

io8

Prisoners of War I N T E R N M E N T O F PRISONERS O F W A R

General Provisions i) T h e detaining power may intern prisoners of war, imposing on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or, if the camp is fenced in, of not going outside its perimeter. However, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make this necessary, and except where the provisions of the convention permit this as a penal or disciplinary sanction 63 (Article 21). ii) Prisoners of war may be partially or wholly released on parole or promise, so far as is allowed by the laws of their own power. Such measures shall be taken particularly where this may contribute to the improvement of their state of health. No prisoner can be compelled to accept liberty on parole or promise. Upon the outbreak of hostilities, each belligerent must notify its opponents of its laws and regulations allowing or forbidding its own nationals to accept liberty on parole or promise. Prisoners of war who are paroled or who have given their promise in conformity with the laws and regulations so notified, are bound on their personal honor scrupulously to fulfill, both toward their own power and the power which captured them, the engagements of their paroles or promises. In such cases their own power is bound neither to require nor to accept from them any service incompatible with the parole or promise given 54 (Article 21). Before the present convention, the law relating to the parole of prisoners of war was contained in Articles 10, 11 and 12 of the Hague Regulations, 1907. These were the only articles of Chapter II of those regulations (i.e., the section dealing with prisoners of war) which were not superseded by the 1929 convention. T h e latter contained no provisions on parole. T h e present convention is stated55 to be complementary to Chapter II of the Hague Regulations, but it repeats in substance the provisions of Articles 10 and 11 of the Hague Regulations, although it does not See below, pp. 134 f. "Obviously, when parole is granted in contravention of the laws and regulations of the paroled prisoner's own power, such power may hold itself not bound by the terms of the parole in requiring services from the parolee; see generally on this point, Fauchille, II, par. 1137. " A r t . 135. 53

Prisoners

of War

109

state, as did the latter (in Article 11), that the hostile government is not bound to accede to the request of a prisoner to be set at liberty on parole. Obviously, however, since the granting of parole is discretionary on the part of the detaining power the position is not altered in regard to that unexpressed provision. Article 12 of the Hague Regulations is not repeated in the present convention, but must be considered still effective to the extent it has not been abrogated. T h i s article provides that prisoners of war liberated on parole and recaptured bearing arms against the government to which they had pledged their honor, or against the allies of that government, forfeit their right to be treated as prisoners of war, and may be put on trial before the courts. T h e words of Article 21 of the present convention (above) leave little doubt that breach of the scrupulous obligation of parole would still be considered a most serious offense. 86 However, concerning the right to be treated as prisoner of war upon recapture after breach of parole, the present convention in Article 85 makes it clear that prisoners of war prosecuted under the laws of the detaining power for acts committed before capture must retain, even if convicted, the benefits of the present convention. 67 Where such release is granted, the parole or promise should be in writing, drawn u p in duplicate in a language understood by the prisoner, and signed by him. It should state in clear unequivocal language exactly which acts the prisoner is obligated not to do, particularly whether he is interdicted only from active service against the enemy or whether indirect services are also forbidden. Otherwise doubt may exist on the extent of his obligations. 58 56 O p p e n h e i m , II, 302, states: "According to a customary rule of International L a w the penalty may be capital." Cf., Instructions for the G o v e r n m e n t of the Armies of the U n i t e d States in the Field, A p r i l 24, 1863 (General Orders N o . 100), prepared b y D r . Francis Lieber, which formed the foundation for the H a g u e Regulations of 1899 and 1907. Art. 124 of the Instructions states: "Breaking the parole is punished with death when the person breaking the parole is captured again." Scott, Texts of the Peace Conferences at The Hague, 1899 and 190J, p. 370. Fauchille, II, par. 1136, cites the opinion of Dudley-Field that, according to modern practice, the death penalty is not inflicted except where there are aggravating circumstances, b u t that close and rigorous confinement, not a m o u n t i n g to cruelty is substituted; R o l i n , I, par. 310, believes that the death penalty is too harsh. 67 "Certain Delegations wished to see introduced the provisions in the H a g u e Regulations which deprive prisoners of war released on parole of the benefit of the treatment stipulated for prisoners of war should they be recaptured bearing arms against the Power to w h o m they h a d given their word of honour. T h e majority of the Delegations, however, rejected this principle and adopted the present text." Final Record, I I A , 564, R e p o r t of Committee II; cf., U.S. Law 1856; Br.M.M.L., Pt. I l l , par. 248. 58 U.S. Rules 149; U.S. Law 186; BrM.M.L., Pt. I l l , pars. 245, 246; Fauchille, II, pars. 1 1 3 1 - 1 1 3 5 , where it is stated that the terms of the parole are strictly construed in regard to their application.

no

Prisoners of War

T h e Hague Regulations make no distinction between officers and other ranks in regard to release on parole. However, according to both (former) United States and British practice a noncommissioned officer or private soldier cannot give his parole except through a commissioned officer,59 although the United States Rules did allow an exception where an individual properly separated from his command had suffered long confinement without the possibility of being paroled through an officer.®0 T h e United States Rules further provided that commissioned officers could give their paroles only with the permission of a military superior as long as such superior is accessible;61 and that certain types of parole are not permitted nor are of any value, namely, paroling on the battlefield, paroling of entire bodies of troops after a battle, or dismissal of large numbers of prisoners with a general declaration that they are paroled. 62 T h e United states army field manual now forbids military personnel of the United States army to give their parole to a detaining power except where "the senior officer or non-commissioned officer exercising command authority" specifically authorizes such parole "for the specific purpose of permitting [the person paroled] to perform certain acts materially contributing to the welfare of himself or of his fellowprisoners. Such authorization will extend only for such a short period of time as is reasonably necessary for the performance of such acts." 63 It would appear that a soldier granted parole may withdraw his parole, provided that it is possible for the belligerent which has granted him parole to replace him in the same situation as those prisoners who have not been granted parole. 64 iii) Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness. Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries. Those interned in unhealthy areas, or where the climate is injurious for them, shall be removed as soon as possible to a more favorable climate. T h e detaining power must assemble prisoners of war in camps or 69

U.S. Rules

«"US.

Rules

™ U.S. Rules 62

U.S. Rules

150; Br.M.M.L.,

Pt. I l l , par. 246, n. 1.

150. 151. 152; cf., Fauchille, II, par. 1131, where the reason is stated that the

giving of parole is an individual 63

U.S. Law

act.

187. Examples given are for medical treatment and to allow a medical

officer or chaplain

to carry out

his

normal

duties. T h e

reference

to

command

authority must be interpreted under U n i t e d States military law, since international law places prisoners under the authority of the detaining power, not of prisoners: see p. 115, n. 72, above. 64

Rolin, I, par. 312.

fellow-

Prisoners of War

111

camp compounds according to their nationality, language, and customs, but they must not be separated from prisoners of war of the armed forces in which they were serving at the time of capture, unless they consent (Article 22). T h e present convention makes no use here of the term "races," whereas the 1929 convention (Article 9) spoke of avoiding, as far as possible, the bringing together in the same camp of different races. No prisoner may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone.65 nor may his presence be used to render certain points or areas immune from military operations. Prisoners shall have shelters against air bombardment and other hazards of war to the same extent as the local civilian population. Except for those engaged in protecting their quarters against such hazards, they may enter their shelters as soon as possible after the alarm has been given. Any other protective measures taken in favor of the civilian population must also apply to them. T h e detaining powers must give the powers concerned, through the protecting powers, all useful information regarding the geographical location of the prisoner camps. Whenever military considerations permit, the camps must be indicated in daytime by the letters P W or PG, placed so as to be clearly visible from the air. T h e Powers concerned may, however, agree on any other system of marking, but whatever method is adopted, such markings may only be used on prisoner of war camps (Article 23). v) Transit or screening camps of a permanent nature must be fitted out in similar fashion and condition as other prisoner of war camps, and the prisoners in them must be afforded the same treatment as in other camps (Article 24). THE

QUARTERS, F O O D , A N D C L O T H I N G

OF

PRISONERS O F W A R

i) Prisoners of war must be quartered under conditions as favorable as those for the forces of the detaining power who are billeted in the same area, making allowance for the habits and customs of the prisoners and in no case prejudicial to their health. This shall apply particularly to their dormitories as regards both total surface and minimum cubic space, the general installations, bedding, and blankets. Premises provided for their use, individually or collectively, must be entirely pro66 Trial of Tanabe Koshiro (1947), Netherlands Temporary Ct.-Martial, Macassar, N.E.I., L.R.T.W.C., XI, 1 (Ammunition depot established in immediate vicinity of prisoner of war camp).

112

Prisoners of War

tected from dampness and adequately heated and lighted, particularly between dusk and lights out. All precautions must be taken against fire danger. Separate dormitories must be provided for women in mixed camps (Article 25). ii) T h e basic daily food rations must be sufficient in quantity, quality, and variety to keep prisoners of war in good health, prevent loss of weight, or the development of nutritional deficiencies, and take into account their habitual diet. Prisoners who work must be supplied with such additional rations as are necessary for the labor on which they are employed. All shall have sufficient drinking water. T h e use of tobacco must be permitted. Prisoners shall, as far as possible, be associated with the preparation of meals, and may be employed for that purpose in the kitchens. They must be given the means of preparing, themselves, the additional food in their possession. Adequate premises must be provided for messing. Collective disciplinary measures affecting food are prohibited (Article 26). It is to be noted that in Article 25 a parallel is drawn between the accommodations of prisoners of war and troops of their captors, but no such comparison is made in connection with food. In this the present convention differs from the 1929 convention (Article 11) where it was stated that the food ration must be equivalent in quantity and quality to that of the depot troops of their captors. By contrast with the relative standard of the previous convention, the present convention sets up an absolute standard for food. iii) Clothing, underwear, and footwear must be supplied to prisoners of war in sufficient quantities by the detaining power, which must make allowance for the climate of the region where they are detained. Captured uniforms of enemy armed forces should, if suitable for the climate, be made available for the prisoners. T h e detaining power must assure the regular replacement and repair of the articles. In addition prisoners who work must receive appropriate clothing wherever demanded by the nature of the work (Article 27). iv) Canteens must be established in all camps, where prisoners may procure foodstuffs, soap, tobacco, and ordinary articles in daily use. T h e tariff must never exceed local market prices. Profits made by the camp canteens go for the benefit of the prisoners, and a special fund must be created for this purpose. T h e prisoners' representative 66 has the right to collaborate in the management of the canteen and of the fund. When a camp is closed down, the credit balance of the fund must be handed to an international welfare organization, to be em"See below, pp. 189 f.

Prisoners of War

113

ployed for the benefit of prisoners of war of the same nationality as those who contributed to the fund. After a general repatriation, such profits are kept by the detaining power, subject to any agreement to the contrary between the Powers concerned (Article 28). HYGIENE AND MEDICAL ATTENTION

i) T h e detaining power is bound to take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps and to prevent epidemics. Prisoners must have for their use, day and night, conveniences which conform to the rules of hygiene and are maintained in a constant state of cleanliness. In mixed camps, separate conveniences must be provided for women prisoners. In addition to furnishing baths and showers in the camps, the detaining power must provide prisoners with sufficient water and soap for their personal toilet and for washing personal laundry; together with the necessary installations, facilities and time for those purposes (Article 29). ii) Every camp must have an adequate infirmary, where prisoners may have required attention and appropriate diet. Isolation wards are, if necessary, to be set aside for cases of contagious or mental disease. Those suffering from serious disease, or whose condition necessitates special treatment, a surgical operation, or hospital care, must be admitted to any military or civilian unit where such treatment can be given, even if their repatriation is contemplated in the near future. Special facilities are to be afforded for the care of the disabled, in particular the blind, and for their rehabilitation, pending repatriation. Prisoners shall be attended, preferably, by medical personnel of their own belligerent power, and if possible, of their own nationality. They must not be prevented from presenting themselves to the medical authorities for examination. T h e detaining authorities must, on request, issue to every prisoner who has undergone treatment an official certificate indicating the nature of his illness or injury, the duration and the kind of treatment received. A duplicate of the certificate is to be forwarded to the Central Prisoners of War Information Agency. T h e costs of treatment, including any apparatus necessary for the maintenance of prisoners of war in good health, particularly dentures, other artificial appliances and spectacles, are to be borne by the detaining power (Article 30). iii) Medical inspections of prisoners of war must be held at least once a month, including the checking and recording of the weight of each prisoner. Their particular purpose is to check the general state of health, nutrition, cleanliness of prisoners, and detect contagious dis-

ii4

Prisoners

of War

eases, especially tuberculosis, malaria, and venereal disease. T h e most efficient methods available must be employed for this purpose, for example, periodic mass miniature radiography for the early detection of tuberculosis (Article 31). iv) Prisoners of war who are physicians, surgeons, dentists, nurses, or medical orderlies, but were not attached to the medical service of their own armed forces, may be required by the detaining power to exercise their medical functions in the interests of fellow prisoners who belong to their own power. Such medical personnel continue to be prisoners of war, but receive the same treatment as corresponding retained medical personnel. 67 T h e y must be exempted from any other work for which the detaining power may use prisoners of war 68 (Article 33). v) Members of the medical personnel and chaplains who are retained by the detaining power to assist prisoners are not themselves prisoners of war. T h e i r status and rights have already been discussed. Article 33 of the present convention repeats in substance on this score the provisions of Article 28 of Geneva Convention I, 1949. Article 35 (below) further expounds the rights of retained chaplains. Religious, Intellectual, and Physical Activities i) Prisoners of war must enjoy complete latitude in the exercise of their religious duties, including attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the military authorities. Adequate premises must be provided where religious services may be held (Article 34). ii) Chaplains who are retained by the enemy to aid prisoners of war, or who volunteer to remain with prisoners when the latter are taken into captivity, must be allowed to minister to them and to exercise freely their ministry among prisoners of the same religion, in accordance with their religious conscience. T h e y shall be allocated among the various camps and labor detachments containing prisoners belonging to the same forces, speaking the same language, or practising the same religion. T h e y are to enjoy the necessary facilities, including means of transportation, already discussed, 69 for visiting prisoners of war outside their camp. T h e y are free to correspond, subject to censorship, on matters concerning their religious duties with the ecclesiastical authorAbove, pp. 78-79. They are exempted from any other work permitted under Art. 49. For the labor of prisoners of war, see below. w Above, p. 79. m

68

Prisoners of War

115

ities in the country of detention and with international religious organizations. Letters and cards which they may send for this purpose shall be in addition to the quota provided for in Article 71 70 (Article 35)iii) Prisoners of war who are ministers of religion, without having officiated as chaplains to their own forces, shall be at liberty, whatever their denomination, to minister freely to the members of their community. For this purpose they shall receive the same treatment as retained chaplains, and shall not be obliged to do any other work (Article 36). iv) When prisoners of war do not have the assistance of a retained chaplain or of a prisoner of war minister of their faith, then a minister belonging to theirs or a similar denomination, or failing that a qualified layman if such a course is feasible from a confessional point of view, must be appointed to fill this office at the request of these prisoners. Such an appointment is subject to the approval of the detaining power, the agreement of the community of prisoners concerned, 71 and, whenever necessary, the approval of the local religious authorities of the same faith. T h e person thus appointed must comply with all regulations established by the detaining power in the interests of discipline and military security (Article 37). These provisions are new. v) While respecting the individual preferences of every prisoner, the detaining power is to encourage the practice of intellectual, educational, and recreational pursuits, sports, and games among prisoners, and ensure this by providing them with adequate premises and necessary equipment. Prisoners must have opportunities for taking physical exercise, including sports and games, and for being out of doors. Sufficient open spaces must be provided for this purpose in all camps (Article 38). Discipline i) Every prisoner-of-war camp must be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the detaining power. 72 This officer must have in his possession a copy of the present convention, ensure that its provisions 70

Below,

nI.e., 72

A

pp.

126-127.

the prisoners of the particular faith must give their approval as a body.

prisoner of war is not

under

the command

rank and is not subject to their orders as such. Rex

of

fellow-prisoners of

v. Werner

Supreme C t . (Appellate Div.), U n i o n of S. Africa, Ann. See also Art. 82, Geneva Conv. I l l ,

1949, below. U n d e r

Dig.,

and Another 1947,

higher (1947),

Case N o . 93.

their own national

law,

however, prisoners may be subject to the authority of fellow-prisoners of superior rank.

n6

Prisoners

of

War

are known to the camp staff and guard, and be responsible, under the direction of his government, for its application. Prisoners of war, except officers, must salute and show to all officers of the detaining power the external marks of respect provided for by the regulations applying in their own forces. Officer prisoners of war are bound to salute only officers of a higher rank of the detaining power, but must salute the camp commander regardless of his rank (Article 39). By the 1929 convention (Article 18) officer prisoners were also required to salute equals in rank. ii) T h e wearing of badges of rank and nationality, as well as of decorations, is to be permitted (Article 40). iii) In every camp the text of the present convention, its annexes, and the contents of any special agreement 7 8 must be posted in the prisoners' own language in places where all may read them. Copies must be supplied, on request, to prisoners w h o cannot have access to the posted copy. Regulations, orders, notices, and publications relating to the conduct of prisoners must be also posted similarly and copies handed to the prisoners' representative. 74 Every order and command addressed to prisoners of war individually must likewise be given in a language they understand (Article 41). iv) T h e use of weapons against prisoners of war, especially against those escaping or attempting to escape, constitutes an extreme measure, which must always be preceded by warnings appropriate to the circumstances (Article 42). 75 R a n k of Prisoners of W a r i) U p o n the outbreak of hostilities the belligerents must communicate to one another the titles and ranks in the various categories of those w h o may become prisoners of war under this convention, 7 6 in order to ensure equality of treatment between prisoners of equivalent rank. Titles and ranks subsequently created are similarly communicated. T h e detaining power must recognize promotions in rank accorded to prisoners of war and duly notified by the power to which the prisoners belong (Article 43). ii) Officers and prisoners of equivalent status (civilians w h o are accorded officer status) must be treated with the regard due to their rank and age. In their camps they are assigned the services of orderlies w h o 73

Art. 6, above, p.

101.

" B e l o w , pp. 129 f. 76

See also above, p. 104.

76

A r t . 4, above, pp. g7 f.

Prisoners

of

War

117

are soldier prisoners of the same armed forces and, as far as possible, who speak the same language. These orderlies shall be assigned in sufficient numbers, taking into account the rank of the officers and prisoners of equivalent status they serve. Such orderlies shall not be required to perform any other work. Supervision of the mess by the officers themselves shall be facilitated in every way (Article 44). Under the 1929 convention (Article 22) officers and persons of equivalent rank procured their food and clothing from the pay disbursed to them by the detaining power. T h e present convention provides that food and clothing must be supplied to them directly by the detaining power.77 No distinction is, therefore, made in the manner in which officers and other ranks obtain their food and clothing. Foodstuffs and some other articles can be purchased by all ranks in the camp canteens. iii) Prisoners of war other than officers and prisoners of equivalent status must be treated with the regard due to their rank and age. Supervision of the mess by the prisoners themselves must be facilitated in every way (Article 45). Transfer of Prisoners of War after Arrival in Camp i) In deciding on the transfer of prisoners, the detaining power must take into account the interests of the prisoners themselves, more especially so as not to increase the difficulty of their repatriation. Transfers78 must always be effected humanely and in conditions not less favorable than those under which the forces of the detaining power are transferred. Climatic conditions to which the prisoners are accustomed must be taken into account, and the conditions of transfer must in no case be prejudicial to their health. During transfer they must have sufficient food, drinking water, clothing, shelter, and medical attention to keep them in good health. The detaining power must also take adequate precautions to ensure their safety during transfer, especially where it is made by sea or air, and must draw up a complete list of all transferred prisoners before their departure (Article 46).79 These are new provisions introduced by this convention. ii) Sick or wounded prisoners of war must not be transferred as long as their recovery may be endangered by the journey, unless their " A r t s . 26, 27, 28; above, p. 1 1 2 . " T h i s applies equally to evacuation by land or sea; see Trial of Kishio Uchiyama and Mitsugu Fukuda, above. T o r ill-treatment of prisoners during evacuation or transfer, see note 52, above.

n8

Prisoners of War

safety imperatively demands it. By a new provision, if the combat zone draws closer to a camp, the prisoners of war in the camp must not be transferred unless their transfer can be carried out in adequate conditions of safety, or unless they are exposed to greater risks by remaining on the spot than by being transferred (Article 47). iii) In the event of transfer, prisoners must be officially advised of their departure and new postal address, in time for them to pack their luggage and inform their next of kin. T h e y must be allowed to take with them their personal effects, correspondence, and parcels. T h e weight of such baggage may be limited, if the conditions of transfer so require, to what each prisoner can reasonably carry, and must not exceed a maximum of twenty-five kilograms per head. Mail and parcels addressed to their former camp must be forwarded to them without delay. T h e camp commander, in agreement with the prisoners' representative, 80 must take any measures needed to ensure the transport of the prisoners' community property and excess luggage they are unable to take with them. T h e detaining power bears the costs of transfers (Article 48). LABOR OF PRISONERS OF WAR

i) T h e detaining power may use the labor of prisoners of war who are physically fit, taking into account their age, sex, rank, and physical aptitude, and with a view particularly to maintaining them in a good state of physical and mental health. Noncommissioned officers can only be required to do supervisory work, but those not so required may ask for other suitable work, which shall, as far as possible, be found for them. Officers and persons of equivalent status may in no circumstances be compelled to work, but if they ask for suitable work, it shall be found for them as far as possible (Article 49). ii) Besides work connected with camp administration, installation, or maintenance, prisoners may be compelled to do only work of the following classes: (a) agriculture; (b) industries connected with the production or extraction of raw materials; manufacturing industries except metallurgical, machinery, and chemical; public works and building operations which have no military character or purpose; 81 (c) transportation and handling of stores not military in character or purpose; 80

Below, pp. 129 f.

81

T h e q u a l i f y i n g phrase " w h i c h have no military character or purpose"

only Trial

to " p u b l i c works and b u i l d i n g operations." Final of Tanabe

Koshiro,

Record,

IIA,

applies

343. In

the

above, the accused was convicted of e m p l o y i n g prisoners

of war in b u i l d i n g an a m m u n i t i o n depot.

Prisoners of War

119

(d) commercial business; arts and crafts; (e) domestic service; (f) publicutility services having no military character or purpose. Where these provisions are infringed, prisoners must be allowed to exercise their right of complaint 82 (Article 50). In the present convention the work a prisoner may do is specified, while in the 1929 convention (Article 31) the work he must not do was specified, that is, the work must have no direct connection with the operations of war, in particular the manufacture or transportation of arms or munitions, or transportation of material destined for combatant units. 83 T h e present rule does not alter the old prohibition but gives an affirmative answer to the kind of work a prisoner may do. iii) Prisoners must be granted suitable working conditions, especially as regards accommodation, food, clothing, and equipment, which are not inferior than those enjoyed by nationals of the detaining power employed in similar work, and which take climatic conditions into account. In areas where the prisoners are employed, the detaining power must ensure that its national legislation concerning the protection of labor, especially the regulations for the safety of workers, are applied. T h e prisoners shall receive training, and means of protection suitable to the work they will have to do which are similar to those provided nationals of the detaining power. With the exceptions set out in the next paragraph (Article 52), prisoners may be submitted to the normal risks run by these civilian workers. Conditions of labor shall never be rendered more arduous by disciplinary measures (Article

50-

iv) Unless he volunteers, no prisoner of war may be employed on unhealthy or dangerous labor. No prisoner may be assigned to labor which members of the detaining power's own forces would regard as humiliating. T h e removal of mines or similar devices is considered as dangerous labor (Article 52). In The High Command Case the court held that the use of prisoners of war "by combat troops in combat areas for the construction of field fortifications and otherwise to constitute dangerous employment under the conditions of modern war." 84 T h a t is, the locality of the See Art. 78, below, p. 129. T h e production of freight cars by prisoners of war was considered to be that of military equipment in The Flick Case (United States v. Flick, et al.) (1947), U.S. Mil. Trib., Nuremberg, L.R.T.W.C., IX, 20. Dangerous work for prisoners of war, such as on field fortifications, loading ammunition, and mine clearing, is prohibited by international law and constitutes a war crime. In re von Lewinski (called von Manstein) (1949), Brit. Mil. Ct., Germany, Ann. Dig., 1949, Case No. 192, at pp. 516-518. 84 The High Command Case (1948), above, L.R.T.W.C., XII, 91-92. 83 M

Prisoners of War

120

employment as well as its intrinsic nature has a bearing on determining its dangerous nature. In another instance, a Japanese lieutenant was convicted of employing prisoners of war in work on an airstrip subject to aerial bombardment. 85 Loading ammunition has been judicially held dangerous work, as well as mine-clearing.86 v) T h e duration of daily labor, including the time of the journey coming and going, must not be excessive, never exceeding that permitted for civilian nationals of the detaining power employed in the district on the same work. T h e prisoners must be allowed a rest of not less than one hour in the middle of the day, but if the workers of the detaining power are entitled to a longer rest, then the prisoners must get the same rest as the other workers. In addition, they must be allowed a rest of twenty-four consecutive hours every week, preferably on Sunday or on the day of rest of their own country. Each prisoner who has worked for one year shall be granted a rest of eight consecutive days with working pay for that period. Where the prisoners are employed on piece work or work of a similar nature, the working period must not be rendered excessive by such methods of labor (Article 53). vi) Those who sustain accidents or contract a disease in connection with their work, must receive the care required by their condition. T h e detaining power must also deliver to each of them a medical certificate enabling them to submit their claims to their own power, and send a duplicate to the Central Prisoners of War Information Agency 87 (Article 54). Any obligation to compensate a prisoner of war injured at work lies, therefore, on the prisoner's own power. 88 Under the 1929 convention (Article 27) the onus lay on the detaining power. vii) Medical examinations at least once a month shall verify the fitness for work of prisoners, and shall have particular regard to the nature of the work they are required to do. If any prisoner considers himself incapable of working, he must be permitted to appear before the medical authorities of his camp. Physicians or surgeons may recommend that those who are, in their opinion, unfit for work be exempted (Article 55). viii) T h e organization and administration of labor detachments shall be similar to those of prisoner-of-war camps. Every labor detachment remains under the control and administration of a prisoner-of86

XII,

Trial

of Kazuhiko

Imamura

(1947), Australian Mil. C t „ R a b a u l ,

101.

M

The

87

Art. 123, below, p. 151.

High

Command

Case, above, p. 98. See also note 83 above.

88

See Art. 68, below, p.

125.

L.R.T.W.C.,

Prisoners of War

121

war camp. T h e military authorities and commander of the camp are responsible, under the direction of their government, for the observance of the convention provisions in labor detachments. T h e camp commander must keep an up-to-date record of the labor detachments dependent on his camp, and communicate it to the delegates of the protecting power, International Committee of the R e d Cross or of other relief agencies who may visit the camp (Article 56). ix) T h e treatment of prisoners of war who work for private persons must not be inferior to that provided for other prisoners of war by this convention. T h i s applies whether or not such private persons are responsible for guarding and protecting the prisoners. T h e detaining power, the military authorities, and the commander of the camp to which the prisoners belong are entirely responsible for the maintenance, care, treatment, and payment of the working pay 89 of prisoners working for private persons; and these prisoners have the right to remain in communication with the prisoners' representatives in that camp (Article 57).

F I N A N C I A L RESOURCES O F PRISONERS O F W A R

i) O n the outbreak of hostilities, and pending an arrangement with the protecting power, the detaining power may determine the maximum amount of money in cash or similar form that prisoners may have in their possession.90 Excess amounts, which were properly in their possession and were taken or withheld from them, must be placed to their account, together with any monies deposited by them, and cannot be converted into other currency without their consent. If prisoners are permitted to purchase services or commodities outside the camp against payment in cash, such payments shall be made by the prisoner himself or the camp administration, which will charge them to the accounts of the prisoners concerned. T h e detaining power establishes the necessary rules in this respect (Article 58). ii) Cash taken from prisoners at the time of capture 91 which is in the currency of the detaining power must be credited to their separate 88 T h e detaining power is solely and directly responsible for paying it, even if the prisoners are employed in private undertakings. Final Record, IIA, 557. See also Art. 62, below. " T h i s is especially directed to preventing escapes. Final Record, IIA, 567. T h e articles on the financial resources of prisoners of war "were drawn up in such a way that prisoners shall have enough money to meet their current needs, including their everyday wants, without being enabled to enrich themselves as compared with their fighting comrades." Ibid. " S e e Art. 18, above, p. 106-107.

122

Prisoners of War

accounts. 92 Also to be credited to the prisoners' separate accounts are amounts in other currencies taken from them at capture which, at the request of the particular prisoners, have been converted into the currency of the detaining power (Article 59). iii) T h e detaining power must grant all prisoners a monthly advance of pay, 93 the amount of which is fixed by conversion into its currency from Swiss francs, of the following amounts: Category I: Prisoners ranking below sergeants—eight Swiss francs. Category II: Sergeants and other noncommissioned officers, or prisoners of equivalent rank—twelve Swiss francs. Category III: Warrant officers and commissioned officers below the rank of major, or prisoners of equivalent rank—fifty Swiss francs. Category IV: Majors, lieutenant-colonels, or prisoners of equivalent rank—sixty Swiss francs. Category V: General officers, or prisoners of equivalent rank—seventy-five Swiss francs.

However, the belligerents may by agreement modify these amounts. Further, if the amounts would be unduly high compared with the pay of the detaining power's own armed forces, or for any reason seriously embarrass the detaining power, then, pending such a special agreement, the detaining power shall continue to credit the prisoners' accounts with the stated amounts, but may temporarily limit the amounts actually made available for the prisoners' own use to sums which are reasonable. But Category I shall never be given less than the amount the detaining power gives to the members of its own armed forces. T h e reasons for any limitations must be given without delay to the protecting power (Article 60). These provisions represent substantial changes from the rules of the 1929 convention. Under the latter there was no obligation to allow pay, other than working pay, to ranks below that of officer. Furthermore, the present convention introduces flat rates for each category of soldier which are universally applicable to all belligerents, whereas the 1929 convention (Article 23) provided that officer prisoners should get the same pay as officers of corresponding rank in the detaining power's forces, although such pay could not amount to more than that to which they were entitled in their own armed forces. O u t of their pay, under the earlier convention (Article 22), officers and persons of equivalent status had to procure their food and clothing. iv) Supplementary pay may be forwarded to prisoners by their own See Art. 64, below. T h e term "advance of pay" is used to show that the amount is part only of the amount paid to them in their army. Final Record, IIA, 556, 557. M

93

Prisoners

of War

123

power, and this must be accepted for distribution by the detaining power on the conditions that all prisoners belonging to the first power and in the same category receive the same amounts, and that the money is placed to their separate accounts at the earliest opportunity in accordance with the provisions of Article Such supplementary pay does not relieve the detaining power of any of its obligations under this convention (Article 61). T h i s provision is new. v) Prisoners of war must be paid a fair working rate by the detaining authorities directly. 95 T h e rate is fixed by those authorities, but shall at no time be less than one-fourth of one Swiss franc for a full working day. T h e detaining power must inform prisoners, and the prisoners' power through the intermediary of the protecting power, of the rate of daily working pay it has fixed. W o r k i n g pay must likewise be paid by the detaining authorities to prisoners permanently detailed to duties or to a skilled or semi-skilled occupation in connection with the administration, installation, or maintenance of camps, and to the prisoners required to carry out spiritual or medical duties on behalf of their comrades. T h e working pay of the prisoners' representative, 96 his advisers if any, and of his assistants, shall be paid out of the f u n d maintained by canteen profits; 97 the scale of such pay being fixed by the prisoners' representative and approved by the camp commander. If there is no such fund, the detaining authorities must pay these prisoners a fair working rate of pay (Articles 54 and 62). Under the 1929 convention (Article 34) prisoners engaged on work in connection with the administration, internal arrangement, and maintenance of camps did not receive pay for such work. T h e rate of pay of prisoners employed on other work was to be fixed by agreements between the belligerents. Pending the conclusion of such agreements, work for the state was to be paid at the same rate which the detaining power's soldiers received for the same work, or, if there were n o such rates, according to a tariff corresponding to the work executed; work for other public administrations or private individuals to be paid for on conditions to be settled in agreement with the military authorities. vi) Prisoners of war are permitted to receive remittances of money addressed to them individually or collectively. Every prisoner must have at his disposal the credit balance of his account, within the limits fixed by the detaining power, which shall make such payments as are " Below. 96 This applies also to working pay of prisoners employed in private undertakings; see Art. 57 and note 89, above. M Below, pp. i2g £. " S e e Art. 28, above, pp. 112-113.

124

Prisoners of War

requested. Subject to financial or monetary restrictions which the detaining power regards as essential, prisoners may also have payments made abroad,98 priority being given to dependents. In any event, and subject to the consent of their own government, prisoners may have payments made in their own country. For this the detaining power sends to the prisoners' power through the protecting power a notification giving the necessary particulars concerning the prisoners, the beneficiaries of the payments, and the amount of the sums to be paid expressed in the detaining power's currency. The notification must be signed by the prisoners and countersigned by the camp commander. The detaining power debits the prisoners' account by a corresponding amount, placing the sums debited to the credit of the prisoners' own power. Model regulations concerning the notification are contained in Annex V " of the convention as a guide to the detaining power (Article 63). vii) The detaining power must hold an account for each prisoner of war, showing at least the following: a) T h e amounts due to him or received by him as advances of pay, as working pay, or derived from any other sources; the sums in currency of the detaining power taken from him; the sums taken from him and converted at his request into the currency of that power. b) T h e payments made to the prisoner in cash, or in any similar form; payments on his behalf and at his request; payments made by the prisoner in his own country, as set out in section vi above, detailing the sums transferred (Article 64).

viii) Every item entered in the account of a prisoner of war must be countersigned or initialed by him, or by the prisoners' representative acting on his behalf. The prisoners must at all times be afforded reasonable facilities for consulting and obtaining copies of their accounts, which may likewise be inspected by the representatives of the protecting powers at the time of visits to the camp. When prisoners are transferred from one camp to another, their personal accounts must follow them. They shall be given certificates for any other monies standing to the credit of their accounts. The belligerents may agree to notify to each other at specific intervals through the protecting power, the amount of the accounts (Article 65). ix) On termination of captivity, through the prisoner's release or repatriation, the detaining power must give him a statement signed by an authorized officer of that power showing the credit balance then due. The detaining power must also send through the protecting " This would include purchases abroad. Final Record, m Geneva Conventions . . . , p. 161.

IIA, 568.

Prisoners of War

125

power to the prisoners' own government lists giving all appropriate particulars of all prisoners of war whose captivity has been terminated by repatriation, release, escape, death, or any other means, and showing the amount of their credit balances. These lists shall be certified on each sheet by an authorized representative of the detaining power. Any of these provisions may be varied by agreement between any two belligerents. The prisoner's own power is responsible for settling with him any credit balance due to him from the detaining power on his release (Article 66). x) Advances of pay under Article 60 are considered as made on behalf of the prisoners' own power. Such advances, as well as payments made by the latter power in its own country on behalf of its war prisoners in the hands of the enemy under Article 63, and payments by the same power under Article 68 (compensation for injury or disability sustained while working as prisoner of war, or for prisoners' personal property impounded or lost by the detaining power) will form the subject of arrangements between these powers at the close of hostilities (Article 67). xi) Any claim by a prisoner for compensation for any injury or other disability arising out of work shall be referred to the prisoner's own power, through the protecting power. In accordance with Article 54, 100 the detaining power must provide the prisoner with a statement showing the nature of the injury or disability, the circumstances in which it arose and particulars of medical or hospital treatment given for it. This statement will be signed by a responsible officer of the detaining power and the medical particulars certified by a medical officer. Any claim by a prisoner for compensation in respect of personal effects, monies or valuables impounded under Article 18 1 0 1 and not forthcoming on his repatriation, or in respect of loss due to the fault of the detaining power or its servants, is likewise referred to his own power. Nevertheless, any such personal effects required for use by prisoners while in captivity must be replaced at the expense of the detaining power. The detaining power must provide the prisoner with a statement showing all available information why his property has not been restored to him, and a copy to his own power through the Central Prisoners of War Information Agency 102 (Article 68). 100

Above, p. 120. Above, pp. 106-107. 102 See Art. 123, below, p. 151. 101

126

Prisoners RELATIONS OF PRISONERS OF WAR WITH THE

of War

EXTERIOR

i) As soon as prisoners of war have fallen into its power, the detaining power must inform both them and the power to which they belong, through the protecting power, of the measures taken to carry out the provisions of this heading, and of any later modifications of such measures (Article 69). ii) Immediately upon capture, or not more than one week after arrival at a camp, including a transit camp, also in case of sickness, transfer to hospital or another camp, every prisoner must be enabled to write to his family and also to the Central Prisoners of W a r Information Agency 1 0 3 a card similar if possible to the model annexed to the convention, 104 informing his relatives of his capture, address, and state of health. These cards must be forwarded as rapidly as possible (Article 70). iii) Prisoners must be allowed to send and receive letters and cards. If the detaining power deems it necessary to limit the number of letters and cards sent, this number shall not be less than two letters and four cards monthly, exclusive of the mentioned capture cards and shall conform as closely as possible to the models annexed to the convention. 105 Further limitations may be imposed only if the protecting power is satisfied that it would be in the interests of the prisoners because of difficulties of translation caused by the detaining power's inability to find sufficient linguists to carry out the necessary censorship. (Too many letters could choke the censorship offices, resulting in delays, perhaps lost letters.) Limitations on correspondence addressed to prisoners of war may be ordered only by their own power, possibly at the request of the detaining power. A l l mail must be conveyed by the most rapid method at the disposal of the detaining power; it may not be delayed or retained for disciplinary reasons. Prisoners without news for a long period, those unable to receive news from their next of kin or to give them news by the ordinary postal route, and those at a great distance from their homes shall be permitted to send telegrams, the fees being charged against the prisoners' accounts with the detaining power or paid in the currency at their disposal. T h e same applies to cases of urgency. Loc. cit. See model capture card, A n n e x I V B to the convention. Geneva . . . , p. 156. 103

104

Conventions

106 See model correspondence card and letter, Annex I V C to the convention. pp. 157, 158.

Ibid.,

Prisoners

of War

127

As a general rule, the correspondence of prisoners shall be written in their native language, but the belligerents may allow correspondence in other languages. Sacks containing prisoner mail must be securely sealed and labeled to indicate clearly their contents, and must be addressed to offices of destination (Article 71). T o reduce the often prohibitive cost of telegrams the Diplomatic Conference of Geneva, 1949, requested the International Committee of the Red Cross to prepare a series of short numbered specimen messages which would be transmitted by their numbers. 106 iv) Prisoners shall be allowed to receive individual parcels or collective shipments containing, in particular, foodstuffs, clothing, medical supplies, religious, educational or recreational articles, including books, devotional articles, scientific equipment, examination papers, musical instruments, sports outfits, and materials allowing them to pursue their studies or their cultural activities. Such shipments do not free the detaining power from its obligations under this convention. T h e only limits which may be placed on these shipments shall be those proposed by the protecting power in the interests of the prisoners themselves, or by the International Committee of the Red Cross or any other organization giving assistance to the prisoners, on their own shipments only, because of exceptional strain on transport or communications. Powers may make special agreements regarding the conditions for sending individual parcels and collective relief, but they may not delay the receipt of relief supplies by prisoners. Books may not be included in parcels of clothing and foodstuffs. Medical supplies should, as a rule, be sent in collective parcels (Article 72). v) In the absence of special agreements between powers on the conditions for the receipt and distribution of collective relief shipments, the rules annexed to the convention shall be applied. 107 Special agreements shall not restrict the right of prisoners' representatives to take possession of collective relief shipments intended for prisoners, and distribute or dispose of them in the interests of the prisoners. Nor shall they restrict the right of representatives of the protecting power, the International Committee of the Red Cross or any other relief organization responsible for forwarding collective shipments, to supervise their distribution to the recipients (Article 73). vi) Relief shipments are exempt from import, customs, and other dues. Correspondence, relief shipments, and authorized remittances of money addressed to or from prisoners through the post office, whether directly or through the national Prisoners of W a r Information Bu100 107

Resolution 9. Ibid., p. 22. Annex III to the convention; see Appendix II, below.

128

Prisoners

of

War

reau or the Central Prisoners of W a r Information Agency, 1 0 8 are exempt from any postal dues, both in the countries of origin and destination and in intermediate countries. If relief shipments cannot be sent through the post (e.g., because of weight), the cost of transportation is borne by the detaining power in the territories under its control. Other powers which are parties to this convention bear the cost of transportation in their territories. A n y costs of transportation other than those exempted above which are not regulated by special agreements between powers are charged to the senders. T h e parties to the convention shall endeavor to reduce the rates for telegrams to and from prisoners of war (Article 74). 109 vii) Should military operations prevent powers from fulfilling their obligations to ensure the transportation of the shipments referred to in Articles 70, 71, 72, and 77, the protecting powers concerned, the International Committee of the R e d Cross, or any other organization approved by the belligerents may undertake to ensure the conveyance of such shipments. For this purpose the parties to the convention must endeavor to supply them with means of transportation and grant the necessary safe-conducts. Such transports may also be used to convey: (a) correspondence, lists, and reports exchanged between the Central Prisoners of W a r Information Agency and the national Prisoners of W a r Information bureaus; (b) correspondence and reports relating to prisoners of war which the protecting powers, the International Committee of the R e d Cross, or any other body assisting the prisoners exchange either with their own delegates or with the belligerents. Belligerents are not precluded from arranging other means of transportation if they prefer, and protecting them by mutually agreed safeconducts. In the absence of special agreements, the costs of transportation are borne proportionally by the belligerents whose nationals are benefited (Article 75). viii) Censoring prisoner correspondence must be done as quickly as possible, and only by the sending and receiving states, once each. Consignments to the prisoners shall not be examined under condi108

See Arts. 122, 123, below, pp. 1 5 0 - 1 5 1 .

109

See also Resolution 9 of the Diplomatic

The

Universal

Postal

Convention,

1952, Art.

Conference of Geneva, 37,

provides

that

1949, above.

correspondence,

parcel post, insured letters and boxes, and postal money orders addressed to, or sent by, prisoners of war and interned civilians are e x e m p t from postal charges. T o enjoy these

"Service

des

(Prisoners of W a r Service) or "Service des Internés"

(In-

franking privileges

prisonniers de guerre"

the

article must

bear

the

notation

ternees Service) which may be followed b y a translation. US. US.

Treaties

. . . Series No. 2800, p. 188.

Law

150b; see also

Prisoners of War

129

tions exposing the goods to deterioration. Except for written or printed matter, examination must be in the presence of the addressee or of a fellow prisoner delegated by him. Delivery of consignments must not be delayed under pretext of difficulties of censorship. Any prohibition of correspondence ordered by the belligerents, for military or political reasons, must only be temporary and of as short a duration as possible (Article 76). ix) T h e detaining powers must provide facilities for the transmission, through the protecting power or the Central Prisoners of War Information Agency, of instruments, papers, or documents intended for prisoners or dispatched by them, especially powers of attorney and wills. They must facilitate the preparation and execution of such documents for prisoners, in particular allowing them to consult a lawyer and taking the necessary measures for the authentication of their signatures (Article 77). RELATIONS BETWEEN

PRISONERS OF W A R

AND THE

AUTHORITIES

Complaints of Prisoners of War Respecting the Conditions of Captivity Prisoners have the right to make requests regarding their conditions of captivity to the military authorities in whose power they are. Also they have the unrestricted right to apply to the representatives of the protecting powers, either through their prisoners' representative or directly if necessary, to draw their attention to any points concerning their conditions of captivity on which they may have complaints. These requests and complaints are not to be considered part of the correspondence quota. 110 They must be transmitted immediately. Even if recognized to be unfounded, they may not give rise to any punishment. Prisoners' representatives may send periodic reports on the situation in the camps and the needs of the prisoners to the representatives of the protecting powers (Article 78). Prisoner of War Representatives i) In all places where there are prisoners of war, except in those where there are officers, the prisoners shall freely elect by secret ballot every six months, and also in the event of vacancies, prisoners' representatives entrusted with representing them before the military authorities, the protecting powers, the International Committee of the 110

See Art. 71, above.

130

Prisoners of War

Red Cross, and any other organization which may assist them. These representatives are eligible for reelection. In camps for officers and persons of equivalent status, or in mixed camps, the senior officer prisoner must be recognized as the camp prisoners' representative. In camps for officers he shall be assisted by one or more advisers chosen by the officers; in mixed camps his assistants shall be chosen from among those who are not officers, and elected by them. Officer prisoners of the same nationality shall be stationed in labor camps, to carry out the camp administration duties for which the prisoners are responsible. Such officers may also be elected as prisoners' representatives, but his assistants must be chosen from those who are not officers. T h e detaining power must approve every elected representative before he has the right to commence his duties, and must inform the protecting power of the reason for any refusal to approve. T h e representative must have the same nationality, language, and customs as those he represents. Thus prisoners distributed in different sections of a camp according to nationality, language, or customs must have their own representative for each section (Article 79). Changes from the 1929 convention (Article 43) are the insistence on secret ballot every six months in elections by soldier prisoners; the election of the assistants in the officers' camps; that in mixed camps the assistants must be other ranks chosen by the other ranks; and the obligation of the detaining power to give the reason to the protecting power for refusal to approve an elected prisoner. It will be noted that officer prisoners stationed in labor camps do not become representatives unless elected. ii) Prisoners' representatives shall further the physical, spiritual, and intellectual well-being of prisoners. In particular, any system of mutual assistance which prisoners may decide to organize among themselves comes within the province of a representative, in addition to the special duties 111 which other convention provisions entrust to him. Prisoners' representatives are not to be held responsible, simply by reason of their duties, for any offenses committed by prisoners of war (Article 80). iii) Prisoners' representatives must not be required to perform any other work, if the accomplishment of their duties is thereby made more difficult. (Under Article 44 of the 1929 convention they could m S e e Arts. 28, 48, 57, 62, 65, 73, 77, 78, 79, 80, 81, 96, 98, 104, 107, 113, and 126. T h e representatives are in no sense limited to the special duties enumerated. Final Record, IIA, 28g.

Prisoners of War

131

only have their work as representatives deducted from any compulsory period of labor.) They may appoint from among the prisoners such assistants as they may require. 112 All material facilities must be granted to them, particularly a certain freedom of movement necessary for the accomplishment of their duties, such as inspection of labor detachments, receipt of supplies, etc. They shall be permitted to visit premises where prisoners are detained, and every prisoner has the right to consult freely with his representative. T h e representatives shall likewise be accorded all facilities for communication by post and telegraph with the detaining authorities, the protecting powers, the International Committee of the Red Cross and delegates, the Mixed Medical Commissions, 113 and the bodies which assist prisoners of war. Representatives of labor detachments shall enjoy the same facilities for communication with the representatives of the principal camp. Such communications must not be restricted, nor considered part of the correspondence quota 114 of prisoners. Representatives who are transferred must be allowed a reasonable time to acquaint their successors with current affairs. In case of dismissal, the reasons must be communicated to the protecting power (Article 81). Penal and Disciplinary Sanctions General Provisions.11B—(i) A prisoner of war is subject to the laws, regulations, and orders of the armed forces of the detaining power. 113

Final

" I n view of the extent of the duties for which the spokesman [is] responsible." Record,

IIA,

289. Such

assistants must be

distinguished

f r o m the

elected

advisers or assistants provided for in Article 79, to w h o m they will be supplementary in the nature of executive or administrative help. T h e provide

for the election

of

assistants in camps composed

convention does not

solely

of

other

ranks.

In such a camp the elected prisoners' representative will choose his assistants. 113

See Art. 112, below, pp. 143-144.

114

Art. 7 1 , above.

116

"The

Committee

introduced

three new principles a m o n g

the general

provi-

sions. T h e first repeated in its general form an appeal to the indulgence of authorities of

the D e t a i n i n g

Power w h e n

deciding

the

question

of

whether

offense should be the subject o£ judicial or disciplinary action. In the

1929

the an text,

this principle referred only to offenses connected with escape. T h e second principle is that in general prisoners should be judged by military courts and in all cases by courts offering essential guarantees of independence and impartiality. T h e principle allows the judge to lighten

the sentence at his discretion, by

last

drawing

his attention to the fact that the accused prisoner is not a national of the D e t a i n i n g Power, and is not b o u n d to it by any tie of allegiance." Final R e p o r t of Committee II.

Record,

I I A , 570,

Prisoners

132

of War

T h a t power is justified in taking judicial or disciplinary measures with respect to any offense committed by a prisoner of war against such laws, but no proceedings or punishments are allowed which are contrary to the provisions set out here under the heading of "Penal and Disciplinary Sanctions." If any law of the detaining power declares punishable acts committed by a prisoner of war, which would not be punishable if committed by a member of that power's forces, such acts shall entail disciplinary punishments only (Article 82). T h e provision contained in the last sentence is new. ii) In deciding whether proceedings concerning an alleged offense shall be judicial or disciplinary, the detaining power must ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures (Article 83). T h e more serious offenses are dealt with by judicial proceedings, that is, they involve trial by a court. Minor infractions are termed disciplinary and are handled summarily. iii) A prisoner of war shall be tried only by a military court, unless the existing laws of the detaining power expressly permit the civil courts to try a member of the detaining power's own armed forces with respect to the particular offense alleged against the prisoner. In no circumstances shall a prisoner be tried by a court which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defense provided for in Article 105 116 (Article 84). These provisions apply equally to prisoners of war charged with war crimes. 117 iv) Prisoners of war prosecuted under the laws of the detaining power for acts committed before capture shall retain, even if con116

Below, p p . 140-141.

U7

T h e corresponding Article 63 in the Geneva

(Prisoners of War)

Convention,

1929, stated: " A sentence shall only be pronounced on a prisoner of war b y same

tribunals

and

in

accordance

with

the

same

procedure

as in

the

the

case

of

persons belonging to the armed forces of the Detaining Power." T h i s was interpreted

by

war-crimes

tribunals

only

to

apply

to

offenses committed

while

a

prisoner of war, and not to violations of the laws of war committed before capture. In re Yamashita p. 442; L.R.T.W.C.,

(1946), U.S. Supreme Ct., 327 U.S. at p. s i ; 40 A.J.I.L.

I V , at pp. 46-47; Tokyo

approved the j u d g m e n t in In re Yamashita U.S. M i l . Commission, R o m e , L.R.T.W.C., Trial

(Trial

L.R.T.W.C.,

of

Weiss,

X I , 9-10;

et Trial

T r i b . , Strasbourg, L.R.T.W.C., Cassation); Trial L.R.T.W.C.,

of Rauter

al.)

(1945),

of

Robert

Judgment,

on this point; The I, 22; The

Gen.

Mil.

Wagner

Dachau Ct.,

U.S.

Dostler

Case (1945),

Concentration Zone

(1946), French

of

Camp

Germany,

Permanent

III, 42-43, ruling of the Court of A p p e a l (1949), Netherlands Special C t . of Cassation,

X I V , at pp. 1 1 6 - 1 1 8 .

at

pp. 27-28, w h i c h expressly

Mil.

(Cour de Holland,

Prisoners

of War

133 118

victed, the benefits of the present convention (Article 85) —even when they are charged and convicted with offenses against the laws and customs of war and sentenced on the basis of the principles of Nuremberg. 119 The Soviet Union and a number of associated states have entered a reservation to this article to the effect that they do not consider themselves bound to extend the application of the convention to prisoners of war convicted under the law of the detaining power, in accordance with the principles of the Nuremberg trial, for war crimes and crimes against humanity, it being understood that persons convicted of such crimes must be subject to the conditions obtaining in the country in question for those who undergo their punishment. 120 v) No prisoner may be punished more than once for the same act or on the same charge (Article 86). vi) Prisoners of war may not be sentenced by the military authorities or courts of the detaining power to any penalties except those provided for members of that power's armed forces committing the same acts. (See, however, the disciplinary punishments provided for at the end of Article 82, above.) When fixing the penalty the authorities and courts shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the detaining power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. They can reduce the penalty provided for an offense, and are not bound to apply the minimum penalty, where such is prescribed. Collective punishment for individual acts, corporal punishment, imprisonment in premises without daylight and, in general, any form of 118 A prisoner of w a r may be prosecuted by the detaining power for a civil crime committed before the outbreak of war. Hackworth, V I , 288. Such a prisoner would, however, retain the benefits of the present convention. ™ Final Record, I I A , 570, R e p o r t of Committee II. " I t was also pointed out in support of the decision of the majority that a mature legislation, such as a national legislation, clearly defines that anyone who breaks the law remains, without prejudice to his punishment, under the benefit of such legislation." Ibid., 5 7 1 . " " S e e under Reservations, Geneva Conventions . . . , p. 2 3 2 f. In Case of Kappler (1952), Supreme Mil. T r i b . , Italy, 48 A.J.I.L. 96-98, the court was "of the opinion that crimes against the laws and usages of war were outside the scope of Article 8 5 . " T h e modern view of the treatment to be accorded prisoners of war, the court said, contemplates the protection of those w h o have observed the laws and usages of war, b u t not a privileged status for those w h o violated such laws and usages before capture. Defendant, a former member of the G e r m a n armed forces, was captured by the Allies and turned over to Italy for trial for mass slaughter of civilians. T h e court also rejected the defendant's contention that as a prisoner of w a r of the British he could not be tried by Italy for offenses committed before his capture.

134

Prisoners of War

torture or cruelty are forbidden. No prisoner may be deprived of his rank by the detaining power, or prevented from wearing his badges (Article 87).121 vii) Prisoners of any rank undergoing disciplinary or judicial punishment must not be subjected to more severe treatment than that applied in respect of the same punishment to members of the armed forces of the detaining power of equivalent rank. A woman prisoner shall not be awarded or sentenced to a punishment more severe, or treated while undergoing punishment more severely, than a woman member of the detaining power's armed forces dealt with for a similar offense. Prisoners who have served disciplinary or judicial sentences may not be treated differently from other prisoners of war 122 (Article 88). T h e provisions regarding women prisoners are new. Disciplinary Sanctions.—(i) T h e disciplinary punishments applicable to prisoners of war are the following: a) A fine not exceeding fifty per cent of the advances of pay123 and working pay 131 which a prisoner of war would otherwise receive during a period of not more than thirty days. b) Discontinuance of privileges granted over and above the treatment provided for by the present Convention. c) Fatigue duties not exceeding two hours. This must not be applied to officers. d) Confinement.

In no case must disciplinary punishments be inhuman, brutal, or dangerous to health (Article 89). This article is a limitative enumeration of the various forms of disciplinary punishments. Punishment by restriction of rations, permitted by Article 55 of the 1929 convention, is no longer permissible. 125 ii) T h e duration of any single punishment must not exceed thirty days. Any period of confinement awaiting the hearing or the award of punishment must be deducted from an award. T h e maximum of thirty days may not be exceeded, even if the prisoner is answerable for several acts at the same time when he is awarded punishment, whether such acts are related or not. T h e period between pronouncement of an award and its execution must not exceed one month. When a prisoner is awarded a further disciplinary punishment, at least three 121 In Case of Kappler, above, the Supreme Military Tribunal, Italy, held that Art. 87 did not apply to crimes committed before capture. 122 But see provision for special surveillance of prisoners punished for attempted escape, Art. 92, below. 123 Art. 60. 121 Art. 62. 136 Final Record, IIA, 571, Report of Committee II.

Prisoners of War

135

days must elapse between the execution of any two of the punishments, if the duration of one of these is ten days or more (Article 90). iii) T h e escape of a prisoner of war is deemed to have succeeded when: a) he has joined the armed forces o£ his own power, or those of an allied power; b) he has left the territory under the control of the detaining power, or of an ally of that power; c) he has joined a ship flying the flag of his own power, or of an allied power, in the territorial waters of the detaining power, the ship not being under the lastnamed's control.

Prisoners of war who have made good their escape in the sense described above and who are recaptured are not liable to any punishment with respect to their previous escape 126 (Article 91). iv) A prisoner who attempts to escape and is recaptured before he has made good his escape is liable only to a disciplinary punishment, even if it is a repeated offense. O n recapture he must be handed over without delay to the competent military authority. Prisoners punished as a result of an unsuccessful escape may be subjected to special surveillance, notwithstanding the provision of Article 88 which requires that prisoners who have served their sentences may not be treated differently from other prisoners of war. Such surveillance must not affect the state of their health, must be undergone in a prisoner-ofwar camp, and must not entail the suppression of any safeguard granted them by the convention (Article 92). It is legally permissible to shoot at a prisoner of war who is attempting to escape if that is the only reasonable way of preventing the escape. T h e prisoner must be properly warned to stop and surrender before he is fired at. 127 If possible he should merely be disabled from escaping and not killed. 1 2 8 T h e prisoner, however, may only be fired at while attempting to escape, not after recapture. H e may not be fired at to deter him from making an attempt to escape when the attempt only exists in intention, nor where the prisoner is escaping to save his life from guards who have shown an intention to murder him. 1 2 9 It will be noted that Article 92 prescribes only disciplinary punish126

B u t see Art. 93 for offenses other than the actual escape committed

during

the escape. 127

See A r t . 42, above, p. 116. Also, the case of Korber

T r i b . , G e r m a n y , L.R.T.W.C.,

XIII,

121

(1946), French Mil. G o v m t .

(Accused G e r m a n frontier guard o n

the

German-Swiss border); Fauchille, II, par. 1128. 128

The

Dreieruialde

Case, above, at pp. 86-87.

129

The

Milch

(United

L.R.T.W.C.,

Case

States v. Milch)

(1947), U.S. M i l . T r i b . ,

V I I , at p. 61, and the cases there cited.

Nuremberg,

Prisoners

136

of War

ment for unsuccessful escape, without distinguishing between individual escapes and mass escapes of prisoners of war. A t the Nuremberg T r i a l of the major German war criminals of W o r l d W a r II, the tribunal stated in reference to fifty officers of the British Royal A i r Force who escaped from a German prison camp and were, in March, 1944, shot on recapture on the direct orders of Hitler: "It was not contended by the defendants that this was other than plain murder, in complete violation of international law." 130 It is obvious, therefore, that a view previously expressed in some quarters that a conspiracy among prisoners for a collective or general escape can be rigorously punished, even with death in grave cases, 131 is certainly without any validity today. v) Escape or attempt to escape, even if it is a repeated offense, shall not be deemed an aggravating circumstance (that is, increase the penalty) if the prisoner of war is subjected to trial by judicial proceedings for an offense committed during his escape or attempt to escape. In conformity with the principle of taking disciplinary measures rather than judicial, wherever possible, 132 offenses committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, 1 3 3 such as offenses against public property, theft without intention of self-enrichment, the drawing up or use of false papers, or the wearing of civilian clothing, 134 shall occasion disciplinary punishment only. 1 3 5 Prisoners 130

Nuremberg

131

See Fauchille, II, par.

Judgment,

N o . 100, of 1863

A r t . 83, above.

133

In Rex

v. Kaehler

and Stolski

A p p . Div., Canada); Ann. tion to the Geneva dictum

1129, where

Art. 77

(2) of

the

U.S. General

Orders,

(the "Instructions" prepared by Dr. Francis Lieber), is cited.

132

obiter

p. 58.

Dig.,

(1945), 3 D . L . R . 272 (Supreme C t . of Alberta,

1943-1945,

Case N o .

(Prisoners of War) Convention,

134, a case decided in rela1929, the court stated in an

that a prisoner of war w h o killed a sentry in endeavoring to escape

incurred criminal liability. T h e

court refuted an obiter

effect in a decision by a police magistrate in Rex

dictum

v. Krebs Dig.,

(Magistrate's Court of R e n f r e w C o u n t y , Ontario); Ann.

to the

contrary

(1943), 4 D . L . R .

553

1943-194;,

No.

Case

137. However, the decision of the A l b e r t a court would not appear to have reference to prisoners of war held under conditions of battle. Fauchille, II, par. 1128, states the stabbing of a guard for the purpose of escape is a crime susceptible of punishment. 134

The

wearing

of

civilian

clothes

by

an

escaping

prisoner

of

war

does

not

deprive h i m of the protection of the Prisoner of W a r conventions. T h i s was also international law and practice before the present Air Power 135

"In

and

order

War Rights, to

prevent

(1949) convention;

p. 372, citing instances from W o r l d W a r the

Detaining

Power

from

punishments for certain breaches of minor importance

inflicting normally

see Spaight, II.

unduly associated

escapes, as an indirect form of penalizing the latter, it was decided

to

severe with

mention

such breaches explicitly, and to provide that they should only involve disciplinary punishment." Final

Record,

I I A , 5 7 1 , R e p o r t of Committee II.

Prisoners

of War

137

w h o aid or abet an escape or attempt to escape are liable on this count to disciplinary punishment only (Article 93). vi) If an escaped prisoner of war is recaptured, his own power must be notified of this according to the procedure laid d o w n in Article !22,136 jf notification of his escape has been made (Article 94). vii) A prisoner of war accused of an offense against discipline must not be kept in confinement pending the hearing unless a member of the detaining power's armed forces would be so kept if he were accused of a similar offense, or if it is essential in the interests of camp order and discipline. A n y such period in confinement awaiting disposal of a disciplinary offense must be reduced to an absolute m i n i m u m and must not exceed fourteen days. T h e provisions of Articles 97 and 98 (see below) apply to such confinement (Article 95). viii) Acts which constitute offenses against discipline must be investigated immediately. W i t h o u t prejudice to the competence of courts and superior military authorities, disciplinary punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or by a responsible officer w h o replaces h i m or to w h o m he has delegated his disciplinary powers. In no case may such powers be delegated to a prisoner of war or be exercised by a prisoner of war (a new provision obviously stemming from abuses in W o r l d W a r II). Before any disciplinary award is pronounced, the accused must be given precise information regarding the offenses of which he is accused, and given an opportunity of explaining his conduct and of defending himself. H e shall be permitted, in particular, to call witnesses and to have recourse, if necessary, to the services of a qualified interpreter. T h e decision shall be announced to the accused and to the prisoners' representative. 1 3 7 T h e camp commander must maintain a record of disciplinary punishments, which must be open to inspection by representatives of the protecting power (Article 96). ix) Prisoners of war shall in no case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment there. A l l premises for disciplinary punishments must conform to the sanitary requirements set forth in Article 25. 138 A prisoner undergoing punishment shall be enabled to keep himself in a state of cleanliness, in conformity with Article 29. 139 138

Below, pp.

137

T h e s e are the m i n i m u m safeguards for the prisoner's defense. Final

150-151.

I I A , 571, R e p o r t of Committee II. 118

A b o v e , pp.

138

A b o v e , p. 113.

111-112.

Record,

138

Prisoners of War

Officers and their equivalents must not be lodged in the same quarters as noncommissioned officers or men. Women must be confined in separate quarters from male prisoners and be under the immediate supervision of women (Article 97). x) A prisoner undergoing the disciplinary punishment of confinement shall continue to enjoy the benefits of the provisions of the convention except so far as these are necessarily rendered inapplicable by the mere fact that he is confined. In no case may he be deprived of the benefits of the provisions of Articles 78 (requests and complaints regarding his conditions) and 126 (right of inspection of place of confinement and interview of prisoners by representatives or delegates of the protecting powers and of the Red Cross).140 He cannot be deprived of the prerogatives attached to his rank; must be allowed to exercise and stay in the open air at least two hours daily; be allowed, on his request, to be present at the daily medical inspections. He shall receive the medical attention his state of health requires and, if necessary, be removed to the camp infirmary or to a hospital. Reading and writing, sending and receiving letters must also be permitted. However, parcels and remittances of money may be withheld until completion of the punishment, being entrusted to the prisoners' representative, who will hand over to the infirmary perishable goods in the parcels (Article 98). Judicial Proceedings.—(i) No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the detaining power or by international law, in force at the time the act was committed. 141 No moral or physical coercion may be exerted on him to induce him to admit himself guilty of the act of which he is accused. He may not be convicted without having had an opportunity to present his defense and the assistance of a qualified advocate or counsel (Article 99). ii) Prisoners of war and the protecting powers must be informed as soon as possible of the offenses punishable by the death sentence under the laws of the detaining power. No other offenses shall thereafter be made punishable by the death penalty without the concurrence of the prisoners' own power. T h e death sentence cannot be pronounced on a prisoner of war unless the attention of the court has, in accordance with Article 87, been particularly called to the fact that since the accused is not a national of the detaining power he is not bound to it by any duty of allegiance, and that he is in its power 140

For A r t . 78, see above, p. 129; for Art. 126, see below, p. 152.

ia

Nullum

crimen

sine

lege.

Prisoners of War

139

as the result of circumstances independent of his own w i l l 1 4 2 (Article 100). These provisions are new. iii) If the death penalty is pronounced on a prisoner of war, the sentence must not be executed before the expiration of a period of at least six months from the date when the protecting power receives, at an indicated address, the detailed communication provided for in Article 107 143 (Article IOX). iv) A prisoner of war can be validly sentenced only by the same courts and according to the same procedure as apply to members of the detaining power's armed forces, and provided the convention provisions now being discussed under the general heading of "Penal and Disciplinary Sanctions" have been observed (Article 102). v) Judicial investigations must be conducted as rapidly as circumstances permit, so that the trial takes place as soon as possible. A prisoner of war must not be confined while awaiting trial unless a member of the detaining power's armed forces would be so confined if accused of a similar offense, or if essential for national security. In no circumstances must this confinement exceed three months. Such a period must be deducted from any sentence of imprisonment passed, and taken into account in fixing any penalty. T h e provisions of Articles 97 and 98 144 also apply to a prisoner of war confined awaiting trial (Article 103). Under the 1929 convention (Article 47) the period in confinement while awaiting trial was deducted only if such deduction were permitted for members of the detaining power's own forces. Here the deduction is obligatory without qualification. If a prisoner is not brought before a court for trial within three months he must be released from confinement. However, such a prisoner may still be brought up for trial at a later date; "they may even be accommodated in other camps so as to avoid all possibilities of obtaining false witnesses." 145 vi) When the detaining power has decided to institute judicial proceedings in any case, it must notify the protecting power as soon as possible, giving at least three weeks' notice before the trial opens. T h e three weeks is reckoned from the day such notification reaches the protecting power at the address previously indicated by it to the de142 Above, p. 133. A death sentence mandatory by law for a particular offense could be reduced to a lesser penalty by the court under the provisions of Art. 87. 143 See below. 144 Above. 145 Final Record, IIA, 572, Report of Committee II.

140

Prisoners

of War

taining power. T h e notification must include the following information: a) Full name of the prisoner of war, rank, army, regimental, personal or serial number, date of birth, profession or trade if any; b) Place of internment or confinement; c) Specification of the charge(s) on which he is to be arraigned, giving legal provisions applicable; d) Designation of the court which will try the case, date and place fixed for opening the trial.

T h e same communication must be made by the detaining power to the prisoners' representative. A t the opening of the trial, if no evidence is submitted that the notification was received by the protecting power, the prisoner, and his prisoners' representative at least three weeks before, then the trial cannot take place but must be adjourned (Article 104).146 vii) T h e prisoner is entitled to assistance by one of his prisoner comrades, 147 to defense by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. T h e detaining power must advise him of these rights in due time before the trial. Where the prisoner does not exercise a choice, the protecting power must find him an advocate or counsel and shall have at least one week for this purpose. T h e detaining power shall deliver, at the request of the protecting power, a list of persons qualified to defend. Failing a choice by either prisoner or protecting power, the detaining power must appoint a competent defense advocate or counsel. 148 T h e defense advocate must have at least two weeks before the trial opens, as well as the necessary facilities to prepare the defense. H e may, in particular, freely visit the accused and interview him in private. He may confer with any witnesses for the defense, including prisoners of war. T h e facilities must continue until the term of appeal or petition has expired. Particulars of the charge on which the prisoner is to be arraigned, as well as the documents which are generally communicated to the " " T h e corresponding article in the Geneva (Prisoners of War) Convention, 1929, i.e., Art. 60, was held to apply only to judicial proceedings in respect of offenses committed while a prisoner of war. In re Yamashita, above, 327 U.S. at p. 24; 40 A.J.I.L., at p. 444; L.R.T.W.C., IV, at pp. 48-49. T h e present article (104) is not so limited; see Art. 85, above. 117 A new provision. 148 Where counsel is chosen by the prisoner or the protecting power, it is considered that the expenses of defense will be borne by the protecting power, but not where defense counsel is selected by the detaining power. Final Record, IIA, 572, Report of Committee II.

Prisoners

of War

141

accused under the laws in force in the detaining power's armed forces, must be communicated both to the accused, in a language he understands, and to his defense advocate or counsel in good time before the trial opens. T h e representatives of the protecting power are entitled to attend the trial unless, exceptionally, it is held in camera in the interests of state security. If so, the detaining power shall advise the protecting power accordingly (Article 105). viii) Every prisoner has, in the same manner as members of the detaining power's armed forces, the right of appeal or petition from any sentence pronounced upon him, in order to have the sentence quashed or revised, or the trial reopened. H e must be fully informed of his right to do so and of the time limit upon this (Article 106). ix) A n y judgment and sentence on a prisoner of war must be immediately reported to the protecting power in the form of a summary communication, which indicates whether he has the right of appeal with a view to quashing the sentence or reopening the trial. T h i s communication shall likewise be sent to the prisoners' representative, and to the accused in a language he understands, if sentence was not pronounced in his presence. T h e detaining power must also immediately communicate to the protecting power the decision of the prisoner to use or waive his right of appeal. Furthermore, if a prisoner is finally convicted 1 4 9 or if he is sentenced to death in the first instance the detaining power must as soon as possible address to the protecting power a detailed communication containing: a) the precise wording of the finding and sentence; b) a summarized report of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution and the defense; c) notification, where applicable, of the establishment where the sentence will be served.

These communications to the protecting power shall be sent to the address previously made k n o w n to the detaining power (Article 107). x) Sentences pronounced on prisoners after a conviction has become enforceable shall be served in the same establishments and under the same conditions as for members of the detaining power's own armed forces. These conditions shall conform to the requirements of health and humanity. A woman prisoner of war on w h o m such a sentence has been pronounced shall be confined in separate quarters under the supervision of women. Prisoners of war sentenced 149 I.e., where the whole proceedings, including any appeals, are Final Record, IIA, 572, Report of Committee II.

terminated.

Prisoners

142

of War

to a penalty depriving them of their liberty must, in any case, retain the benefit of the provisions of Article 78 (requests and complaints regarding their conditions) and 126 (right of inspection of places of confinement and interview of prisoners by representatives or delegates of the protecting powers and of the R e d Cross). 150 Furthermore they shall be entitled to receive and dispatch correspondence, to receive at least one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state of health, and the spiritual assistance they may desire. Penalties to which they may be subjected shall be in accordance with the provisions of Article 87 which forbid collective punishment for individual acts, corporal punishment, imprisonment in premises without daylight and, in general, any form of torture or cruelty (Article 108).

T E R M I N A T I O N OF

CAPTIVITY

DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL COUNTRIES

i) Belligerents are bound to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel. N o such prisoner may, however, be repatriated against his will during hostilities. T h e following shall be repatriated direct: a) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished. b) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment, and whose mental or physical fitness seems to have been gravely diminished. c) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.

T h r o u g h o u t the duration of hostilities, the belligerents must endeavor, with the cooperation of the neutral powers concerned, to arrange for the accommodation in neutral countries of the following sick and wounded prisoners: a) Wounded and sick whose recovery may be expected within one year of the date of wound or beginning of illness if treatment in a neutral country might increase the prospects of a more certain and speedy recovery. b) Prisoners of war whose mental or physical health, according to medical 150

For Art. 78, see above, p. 129; for Art. 126, below, p. 152.

Prisoners

of War

143

opinion, is seriously threatened by continued captivity, b u t whose

accommodation

in a neutral country might remove such a threat.

T h e conditions for repatriation from the neutral countries, and the status of prisoners of war accommodated in those countries, shall be fixed by agreement between the powers concerned. In general those prisoners who belong to the following categories should be repatriated: 1) Those whose state of health has deteriorated so as to fulfill the conditions laid down for direct repatriation (see above). 2) Those whose mental or physical powers remain, even after treatment, considerably impaired. T h e belligerents may also, with the cooperation of neutral powers, conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity. If no special agreements 151 are concluded between belligerents to determine the cases of disablement or sickness entailing direct repatriation or accommodation in a neutral country, such cases must be settled in accordance with the principles laid down in the model agreement concerning direct repatriation and accommodation in neutral countries of wounded and sick prisoners of war 1 5 2 and in the regulations concerning mixed medical commissions 153 annexed to the present convention (Articles 109 and 110). ii) T h e detaining power, the prisoners' own power, and a neutral power agreed upon by the two former powers, shall endeavor to con elude agreements which will enable prisoners of war to be interned in that neutral's territory until the close of hostilities 154 (Article 111). iii) U p o n the outbreak of hostilities, mixed medical commissions shall be appointed to examine sick and wounded prisoners of war, and to make all appropriate decisions regarding them. T h e appointment, duties, and functioning of these commissions shall be in conformity with the provisions of the regulations annexed to the present convention. 1 5 5 However, prisoners of war who, in the opinion of the medical authorities of the detaining power are manifestly seriously 161

On

April

11,

1953, during

the Korean

war,

the opposing

forces signed

agreement for the exchange of sick and wounded prisoners under the

an

provisions

of Arts. 109 and 110. 152

A n n e x I to the convention; see A p p e n d i x III, below.

153

A n n e x II to the convention; see A p p e n d i x IV, below.

is* " T h i s decision . . . aims at ensuring a reasonable standard of living for all prisoners of war, in the event of the Detaining Power being u n a b l e for any reason, to comply with the m i n i m u m standards regarding the treatment of prisoners of war laid d o w n in the Convention." Final 156

See n. 153, above.

Record,

I I A , 365.

144

Prisoners

of

injured or seriously sick, may be repatriated without having to examined by a mixed medical commission (Article 112). iv) Besides those wounded and sick prisoners of war designated the medical authorities of the detaining power, those belongng the following categories are entitled to present themselves for amination by the mixed medical commissions:

War

be by to ex-

a) Wounded and sick proposed by a physician or surgeon of their nationality, or national of a belligerent allied to their power, who exercises his functions in the camp. b) Wounded and sick proposed by their prisoners' representative. c) Wounded and sick proposed by their own power, or by an organization giving assistance to the prisoners which is recognized by that power.

Prisoners of war who do not belong to these three categories may nevertheless present themselves for examination by the mixed medical commissions, but shall be examined only after those in the categories. T h e physician or surgeon of the same nationality as the prisoners and the prisoners' representative concerned must be permitted to be present at the examination (Article 113). T h e provision in the last sentence is new. v) Prisoners who meet with accidents have the benefit of the convention provisions concerning repatriation or accommodation in a neutral country, unless the injury is self-inflicted (Article 114). vi) A prisoner on whom a disciplinary punishment has been imposed and who is eligible for repatriation or accommodation in a neutral country may not be kept back on the plea that he has not undergone his punishment. Prisoners detained in connection with a judicial prosecution or conviction who are designated for repatriation or accommodation in a neutral country may benefit by such measures before the end of the proceedings or the completion of the punishment, if the detaining power consents. T h e belligerents shall communicate to each other the names of those who will be detained until the end of the proceedings or the completion of the punishment (Article 115). vii) T h e cost of repatriating prisoners or transporting them to a neutral country shall be borne, from the frontiers of the detaining power, by the prisoners' own power (Article 116). viii) No repatriated person may be employed on active 158 military service (Article 117). " " T h e y may, however, be employed in the administrative or auxiliary services of their armies, e.g., pay offices or welfare work. Final Record, IIA, 374-375, 573.

Prisoners

of

War

145

RELEASE AND REPATRIATION OF PRISONERS OF WAR AT THE CLOSE OF HOSTILITIES

i) Prisoners of war must be released and repatriated without delay after the cessation of active hostilities. In the absence of such a stipulation in any agreement between the belligerents terminating hostilities, or where there is no agreement, each detaining power must establish and execute without delay a plan of repatriation conforming to this principle. T h e measures adopted must be brought to the knowledge of the prisoners of war. T h e costs of repatriation are to be equitably apportioned between the detaining power and the prisoners' own power on the following basis: a) If the two powers are contiguous, the latter p o w e r bears the costs f r o m the frontiers of the d e t a i n i n g power. b) If n o t contiguous, the detaining power bears the costs of transportation over its o w n territory as far as its frontier or its p o r t of e m b a r k a t i o n nearest to the latter power's territory. T h e two powers are to agree on the e q u i t a b l e a p p o r t i o n m e n t of the r e m a i n i n g costs of the repatriation, but the process of c o n c l u d i n g such agreement is not in any circumstances to justify any delay in repatriation

an

(Article

118).

Article 118 "lays down the principle that prisoners of war shall be released and repatriated without delay at the end of active hostilities. A proposal which would authorize the postponement of the repatriation of prisoners when the material situation of their country may make such postponement desirable was rejected." 1 5 7 T h e United Kingdom delegation to the Diplomatic Conference of Geneva, 1949, had submitted a proposal to allow the detaining power to delay repatriation, if, in the abnormal conditions which might prevail immediately after the conclusion of war, such a measure was justified on grounds of national security or in the interests of the prisoners themselves. It was suggested that in countries with a high degree of industrial development, where industry had been disrupted as a consequence of defeat, the return of large numbers of men might cause serious unemployment, which might in turn lead to economic, social, and political upheavals. T h e United Kingdom proposal was not accepted. 158 T h e Austrian delegation to the same conference had proposed a new article to be inserted between Articles 118 and n g , as follows: 157 168

Ibid., Ibid.,

p. 573, R e p o r t of C o m m i t t e e II. p p . 337, 449-450.

146

Prisoners

of

War

"Subject to the provisions of the following paragraph prisoners of war shall be repatriated to the country whose nationals they are at the time of their repatriation. "Prisoners of war, however, shall be entitled to apply for their transfer to any other country which is ready to accept them." 1 5 9 T o the last paragraph the Austrian Delegation later suggested the following addition: " I n that case, the Detaining Power shall not be required to meet the expenses of repatriation." 1 6 0 T h e Delegation explained the proposed article in the following terms: " T h e r e would be two exceptions to the general rule that prisoners should be repatriated to their own country, namely, where the territories of the country of origin had come under the jurisdiction of a foreign government, and where the conditions of life had so changed that the prisoner no longer wished to return to his home country and was able to settle in the territory of another State." 1 6 1 Later the same Delegation explained further that the proposal had "two objects: (1) A prisoner of war whose original status had changed during the time of his captivity should not be repatriated to the country of which he had been a national at the time of his capture. For example, a soldier from Prague w h o was an Austrian at the outbreak of the first W o r l d W a r and was a Czech at its end should not be repatriated to Austria b u t to Czechoslovakia. (2) Prisoners of war must have the option of not returning to their country if they so desire." 1 6 2 T h e United K i n g d o m delegation objected to the proposed article on the ground that the detaining power w o u l d have to bear the expense of sending the prisoner to any part of the world where he wished to go, 1 6 3 while the U.S.S.R. delegation, with the approval of the U.S.A. delegation, objected that the second paragraph of the proposed article "could be used to the detriment of the prisoners themselves and of their country," 1 6 4 and "that a prisoner of war might not be able to express himself with complete freedom while he was in captivity. Furthermore this new provision might give rise to the exercise of undue pressure on the part of the Detaining Power." 1 6 5 Ibid.,

p. 324.

"» Ibid.,

p. 462.

iaIbid., les

Ibid.,

163

Ibid.,

164

Loc.

lxIbid.,

p. 324. p. 462. p. 324. cit, p. 462. See also below, pp. 611 £., on the question of voluntary repatria-

tion of prisoners of war. T h e Foreign Relations C o m m i t t e e of the U n i t e d

States

Senate considering ratification of the 1949 Geneva Conventions agreed w i t h the execu-

Prisoners

of War

147

T h e article proposed by Austria "was rejected by a large majority." ii) Repatriation must be effected in conditions similar to those laid down by the convention for the transfer of prisoners of war, 1 6 6 but taking into account the provisions of Article 1 1 8 , in section i, above, and the provisions now following. O n repatriation, any articles of value impounded from prisoners on capture, 1 6 7 and any foreign currency not converted into the detaining power's currency, shall be restored to them. W h e r e such are, for any reason whatever, not restored on repatriation, they must be dispatched to the detaining power's national Prisoners of W a r Information Bureau 1 6 8 which must forward them to the powers concerned. T h e prisoners must take with them their personal effects and any correspondence and parcels which have arrived for them. T h e weight of such baggage may be limited by the conditions of repatriation to what each can reasonably carry, but at least twenty-five kilograms must be authorized for each prisoner. T h e other personal effects are left in charge of the detaining power which shall have them forwarded as soon as it has concluded an agreement to this effect with the prisoners' own power on the conditions of transport and payment of costs. Prisoners against whom criminal proceedings for an indictable offense are pending may be detained until the end of such proceedings and, if necessary, until completion of the punishment. T h e same applies to prisoners already convicted for an indictable offense. T h e names of such prisoners must be communicated to the other power. B y agreement between the powers who have been involved in the conflict, commissions shall be established to search for dispersed prisoners of war and to ensure their repatriation with the least possible delay (Article 119). tive branch of the United States government that "article 1 1 8 [of Geneva Convention III] does nothing to change accepted principles of international law under which asylum is applicable to prisoners of war. [The committee] finds nothing in the [conventions] which will compel the United States forcibly to repatriate prisoners of war who fear political persecution, personal injury, or death should they return to their homeland. T h a t article, being intended for the benefit and well-being of prisoners of war, will permit the United States to continue the policy of nonenforceable repatriation, while at the same time leaving it free, where necessary, to refuse requests for asylum." See committee report, Congressional Record, 84th Cong., 1st sess., 101:8 (July 6, 1955), 9969; also Baxter, " T h e Geneva Conventions of 1949 before the U.S. Senate," 49 A.J.I.L. 554. Cf. U.S. Law 199, below, p. 614, n. 118. 1M A r t s . 46-48; above, pp. 1 1 7 - 1 1 8 , m Above, pp. 106-107. 168 Art. 122, below.

Prisoners of War

148 E X C H A N G E O F PRISONERS O F

WAR

i) T h e exchange of prisoners, 169 as distinct from repatriation and accommodation in neutral countries, will now rarely be carried out except by agreement between governments concerned. T h e rule generally observed is to exchange man for man, rank for rank, disability for disability, with added condition for added condition (for instance, not to serve for a certain period). A condition often made is that those exchanged shall not participate as soldiers in the war, that is they are paroled in effect. In exchange it may be agreed to make due allowance if denominations differ or if there is no exact equivalent, as for instance a number of persons of inferior rank may be substituted for one of superior rank. 170 ii) According to United States practice, no exchange shall be made except after complete capture, and after an accurate account of the prisoners and a list of the captured officers have been taken. 171 iii) There is no obligation, apart from agreement, to exchange prisoners. It is merely an act of convenience to both belligerents. Such agreements for exchange are known as cartels. 172 All that is needed is a simple statement, agreed to by the commanders, which has been arrived at by parlementaires 173 (emissaries of the belligerents who cross the enemy lines under the flag of truce) or the exchange of letters. For exchanges on a large scale commissioners are usually appointed, and in such cases commanders ought not as a rule to act without having previously reported to their government. iv) T h e United States Rules declare that, according to the unwritten law of war, spies, war traitors, and war rebels are not exchanged. T h e exchange of such persons would require a special cartel, authorized by the government, or by the chief commander of the army in the field when at a great distance from the government. 174 D E A T H O F PRISONERS O F

WAR

i) Wills of prisoners of war shall be drawn up so as to satisfy the laws of their country of origin, which must inform the detaining power of these requirements. A t the request of the prisoner, and in Br.MM.L., Pt. Ill, pars. 249, 250; U.S. Rules 159-160; U.S. Law 197. Fauchille, II, par. 1139, states it is illegal for a prisoner to attribute a lower rank to himself in order to gain an advantage for his country in the exchange. 171 U.S. Rules 157. Below, p. 397. ™ Below, pp. 380 f. 174 U.S. Rules 160. 1W

170

Prisoners

of War

149

all cases after death, the will must be transmitted without delay to the protecting power, and a certified copy sent to the Central Prisoners of W a r Information Agency. Death certificates, in the form laid down by the convention, 1 7 5 or lists certified by a responsible officer, of all persons w h o die as prisoners of war must be forwarded as rapidly as possible to the national Prisoners of W a r Information Bureau. T h e s e documents shall show the particulars of identity from the dead prisoner's identity card, 1 7 6 the date and place of death, and of burial, the cause of death and all particulars necessary to identify the graves. T h e burial or cremation must be preceded by medical examination of the body to confirm death, to enable a report to be made and, where necessary, establish identity. T h e r e must be honorable burial, if possible according to the rites of the deceased's religion, the graves must be respected, suitably maintained, and marked for identification. Wherever possible, those from the same power shall be interred in the same place. Burial must be in individual graves, unless unavoidable circumstances require the use of collective graves. Bodies may be cremated only for imperative reasons of hygiene, on account of the deceased's religion, or in accordance with his expressed wish. T h e fact of cremation and the reasons must be stated in the death certificate. I n order that graves may always be found, all particulars of burials and graves must be recorded with a Graves Registration Service established by the detaining power. Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shall be transmitted to their own power. Responsibility for the care of these graves and for records of any later moves of the bodies rests on the power controlling the territory; the same applies to the ashes, which shall be kept by the Graves Registration Service until proper disposal in accordance with the wishes of the home country (Article 120). T h e provisions of the 1929 convention (Article 76) were meager by comparison with the foregoing provisions. By the earlier convention wills were received and drawn u p and death certificates prepared under the same conditions as for soldiers of the detaining power. T h e present convention has different provisions on these points. T h e precautions concerning cremation are to be noted. T h e y correspond to the provisions in Geneva Convention I, 1949 (Article 17). 177 ii) Every death or serious injury of a prisoner of war caused or 175 1,6 177

A n n e x I V D to the convention. Geneva Art. 17, above, p. 105. Above, pp. 76-77.

Conventions

. . . , p. 159.

Prisoners

15°

of War

suspected to have been caused by a sentry, another prisoner, or any other person, and death from unknown cause shall be immediately followed by an official inquiry by the detaining power. T h e protecting power must be immediately informed, and a report including statements taken from witnesses, especially those who are prisoners of war, shall be forwarded to that power. If the inquiry indicates guilt, the detaining power must take all measures to prosecute those responsible (Article 121). These provisions are new. INFORMATION FOR

BUREAUS

PRISONERS O F

AND R E L I E F

SOCIETIES

WAR

i) U p o n the outbreak of a conflict and in all cases of occupation, each belligerent must institute an official information bureau for prisoners of war within its power. Neutral or nonbelligerent powers which have received in their territory persons liable to be made prisoners of war 1 7 8 must establish a similar bureau for such persons. T h e bureau must be provided with necessary accommodation, equipment, and staff. It may employ prisoners of war under the conditions laid down by the convention for work by them. 179 Each belligerent must, within the shortest possible time, give its bureau the information specified below, regarding its prisoners of war. Neutral and nonbelligerent powers do likewise with regard to the persons in their hands. Each bureau shall immediately forward such information by the most rapid means to the powers concerned, through the intermediary of the protecting powers, and to the Central Prisoners of W a r Information Agency, for rapid notification of the next of kin. T h e information shall include, so far as available to the bureau and bearing in mind that no form of coercion may be used to secure information from prisoners, 180 each prisoner's surname, first names, rank, army, regimental, personal or serial number, place and date of birth, his power, the first name of his father and maiden name of his mother, name and address of the person to be informed, and the address to which correspondence for the prisoner may be sent. T h e bureau must receive from the various departments concerned information about transfers, releases, repatriations, escapes, admissions to hospital, and deaths, which it shall transmit as above. Similarly, the 178

See above, pp. 97 f.

1,9

See above, pp. 1 1 8 f.

140

See Art. 17, above, p. 105.

Prisoners

of War

151

state of health of the seriously ill or seriously wounded shall be supplied regularly, each week if possible. T h e bureau is responsible for replying to all inquiries sent to it about prisoners of war, including those who have died in captivity, and will make any inquiries necessary to obtain the information. T h e bureau's written communications must be authenticated by a signature or seal. T h e bureau is further charged with collecting all personal valuables, including sums not in the detaining power's currency and documents of importance to the next of kin, left by prisoners repatriated or released, escaped or dead, and shall forward them to the powers concerned. Such articles are to be sent in sealed packets, accompanied by statements giving particulars of the identity of the person to whom they belonged, and by a list of the contents. Other personal effects of such prisoners shall be transmitted under arrangements agreed upon by the belligerents (Article 122). ii) A Central Prisoners of War Information Agency shall be created in a neutral country, if necessary on the proposition of the International Committee of the Red Cross. T h e function of the agency shall be to collect all the information it may obtain through official or private channels respecting prisoners of war, and transmit it as rapidly as possible to the prisoners' country of origin or their power. It must receive all facilities from the belligerents for effecting such transmissions, and financial aid should be provided by all belligerents and parties to the convention (Article 123). iii) T h e national Information Bureau and the Central Information Agency enjoy free postage for mail, all exemptions provided for in Article 74, 181 and, so far as possible, exemption from telegraphic charges or, at least, greatly reduced rates (Article 124). iv) Subject to essential security or other reasonable measures, religious organizations, relief societies or any other organization assisting prisoners of war shall receive from the detaining powers, for themselves and accredited agents, all necessary facilities for visiting the prisoners, for distributing relief supplies and material, from any source, intended for religious, educational, or recreative purposes, and for assisting in organizing leisure within the camps. Such societies may be national or international, but the detaining power may limit the number allowed to operate in its territory, provided adequate relief to all prisoners is not hindered. T h e special position of the 181

Above, pp. 127-128.

itj2

Prisoners

of

War

International Committee of the Red Cross in this field is to be recognized and respected. As soon as the relief supplies or material are handed to the prisoners, or shortly after, receipts for each consignment, signed by the prisoners' representative, shall be forwarded to the relief society or organization making the shipment. Similar receipts must be furnished at the same time by the administrative authorities responsible for guarding the prisoners (Article 125). EXECUTION OF THE

CONVENTION

i) Representatives or delegates of the protecting powers must be permitted to go to all places where prisoners of war may be, particularly places of internment, imprisonment, and labor; have access to all premises occupied by them; go to places of departure, passage, and arrival of prisoners transferred; and interview prisoners, particularly the prisoners' representatives, without witnesses, either personally or through an interpreter. They must have full liberty to select the places they wish to visit, the duration and frequency of visits may not be restricted, and visits may only be prohibited for reasons of imperative military necessity as an exceptional and temporary measure. Compatriots of the prisoners may be permitted to take part in the visits, by agreement between the detaining power and the prisoners' power. T h e delegates of the International Committee of the Red Cross have the same prerogatives, subject to approval of their appointment by the detaining power (Article 126). ii) T h e parties to the convention undertake both in peace and war to disseminate the text of the convention as widely as possible in their countries, in particular to include its study in military and civil instruction so that its principles are known to their armed forces and the entire population. Military or other authorities assuming responsibilities in time of war for prisoners of war must possess the text of the convention and be specially instructed as to its provisions (Article 127). iii) Parties must also communicate to one another through the Swiss Federal Council and, during hostilities, through the protecting powers, the official translations of the convention, and the laws and regulations they adopt to ensure its application (Article 128). iv) Parties undertake to enact any domestic legislation necessary to provide effective penal sanctions 182 for persons committing, or 182

See note to Art. 49, Geneva Conv. I, 1949, above, chap, iv, n. 89.

Prisoners

of War

153

ordering to be committed, any grave breaches of the convention. Such grave breaches 183 are defined as 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, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile power, or willfully depriving him of the rights of fair and regular trial prescribed by the convention. 1 8 4 Each contracting party 1 8 5 is under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches and to bring them, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand them over 1 8 6 for trial to another party concerned, providing such party has made out a prima facie187 case. Further, apart from the grave breaches, each party must take the necessary measures for the suppression 188 of all other acts contrary to the convention provisions. In all circumstances, the accused persons must benefit by safeguards of proper trial and defense, which shall not be less favorable than those provided by Article 105 and those following 1 8 9 (Articles 129 and 130). T h e s e provisions were not contained in the 1929 convention. v) N o party to the convention will be allowed to absolve itself or any other party of any liability which either of them may have incurred in respect of grave breaches of the convention 1 9 0 (Article 131). vi) If a Belligerent requests, an inquiry must be instituted concerning any alleged violation of the convention, in a manner to be decided between the interested parties. Failing agreement on such procedure, the parties should choose an umpire to decide on the procedure to be followed. Once a violation is established, the belligerents must put an end to it and repress it with the least possible delay (Article 132). ""See note to Art. 50, Geneva Conv. I, 1949, above, chap, iv, n. go. See under "Penal and Disciplinary Sanctions," above. 185 See note to Art. 49, Geneva Conv. I, 1949, above, chap, iv, n. 91. 186 See note to Art. 49, Geneva Conv. I, 1949, above, chap, iv, n. 92. 187 See note to Art. 49, Geneva Conv. I, 1949, above, chap, iv, n. 93. 188 See note to Art. 49, Geneva Conv. I, 1949, above, chap, iv, n. 94. Above, pp. 140 f. 190 See note to Art. 51, Geneva Conv. I, 1949, above, chap, iv, n. 97.

VI THE

PROTECTION

OF C I V I L I A N IN T I M E

OF

PERSONS WAR

A NEW DEPARTURE World War II brought to a head the need to regulate by law the treatment of civilian populations in time of war. T h e ruthless application of the doctrine of total war by the Axis powers inflicted vast losses and suffering on the civilian populations of powers against which they waged war. Heightening this cosmic tragedy were the devilish theories of race superiority which demanded the extermination of whole groups of civilian populations and made the hitherto unknown word of "genocide" a household term in the course of a few years. Such shocking crimes compelled the attention of international lawyers to the necessity for creating a comprehensive body of law to deal with such evils, which had hitherto been accorded cursory treatment in a few articles of the Hague Regulations. 1 It is now realized that the laws of war should concern themselves as much with the civilian populations involved as with the armed forces conducting the hostilities. Out of this grave and pressing need were born two post-World War II conventions. These are the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (Geneva Convention IV, 1949) 2 and the Convention on the Prevention and 1 T h e International Committee of the Red Cross submitted a Draft Convention for the Protection of Civilians in 1934, which however, had not been signed when war broke out in 1939; see Pictet, " T h e New Geneva Conventions for the Protection of War Victims," 45 A.J.I.L. 473; Final Record, I, 147. 2 To widen further the protection for civilian populations, the International Committee of the Red Cross, with the help of experts designated by national Red

Protection of Civilians in War

155

Punishment of the Crime of Genocide (Genocide Convention), adopted by the General Assembly of the United Nations on December 9, 1948. Both conventions are now in force,3 having been ratified by the number of nations required by the terms of each convention, but a fair number of nations have still to ratify or accede to them.4 Until it does, a nation is, technically, not bound, since the conventions are contractual in nature. However, the conventions merely express in treaty form standards of conduct which are already binding, apart from the conventions, on the community of nations "by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience." 5 Already, some years before these two conventions came into being, the Nuremberg International Military Tribunal and later war-crimes tribunals had punished war criminals for just such offenses as are defined in the conventions.6 The Charter of the International Military Tribunal (the London Charter, 1945) setting out such crimes, was stated in the Nuremberg Judgment to be "the expression of international law existing at the time of its [the charter's] creation." 7 Further, in dealing (inter alia) with crimes against civilians, the tribunal rejected defense pleas based on the "general participation clause" in Article 2 of the Hague Convention IV, 1907, which argued that the Hague Regulations annexed to that convention did not apply during the late war because some of the belligerents were not parties to the convention. "By 1939," the tribunal stated, "these rules Ikid down in the Convention were recognized by all civilized nations and Cross societies, in 1956 formulated Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, which it published with a commentary in September of that year. T h e rules were particularly aimed against indiscriminate bombing of the civilian population and the use of weapons with uncontrollable effects. T h e objectives of these rules were approved by the X l X t h International Red Cross Conference, meeting at New Delhi, India, Oct.Nov., 1957, which resolved to transmit the rules to governments for their consideration. "Geneva Conv. IV came into force Oct. ai, 1950; the Genocide Conv., 1948, on Jan. is, 1951. 1 U p to and including May, 1958, 67 states had ratified or acceded to Geneva Conv. IV. See Statements of Treaties and International Agreements, Nov., 1950May, 1958, U.N. Docs. S T / L E G / S E R . A / 4 5 - 1 3 5 , New York. Ratifications and accessions have immediate force on armed conflict or occupation; see Art. 157. For ratifications of the Genocide Convention, see below, note 160. 6 Art. 158, Geneva Conv. IV, 1949. T h e extract cited here from Art. 158 is derived from the de Martens clause of the preamble to Hague Convention IV, 1907. Final Record, IIB, 1 1 3 . See also above, p. 6. 6 See, for example, Art. 147, Geneva Conv. IV, 1949; Art. II, Genocide Conv., 1948. 7 Nuremberg Judgment, p. 48.

156

Protection

of Civilians

in

War

were regarded as being declaratory of the laws and customs of war," 8 that is, such rules existed independently of any contractual obligations under the Hague Convention, 1907. It may well be, that any future tribunals trying defendants charged with war crimes of the kind set out in Geneva Convention IV, 1949, and the Genocide Convention, 1948, will equally reject technical pleas based on contractual grounds, and regard the two conventions as declaratory of the laws and customs of war now existing. T h e Genocide Convention, it is to be noted, applies to time of peace as well as time of war. 9 In the following discussion of the two conventions, the section of Geneva Convention IV which is specifically concerned with the position of civilians in occupied territory will be left for the chapter on occupation. 1 0 T h e general provisions now set out, however, apply equally to such occupied populations. T h e section of that same convention which deals with the position of aliens in the territory of a belligerent was discussed earlier. 1 1 Geneva Convention IV, 1949, is by Article 154 expressed to be supplementary to Sections II and I I I of the Hague Regulations, 1899 and 1907, although, in effect, certain of the convention provisions replace some of the Hague Regulations. Because of the complexity of the subject matter, the wording of Article 154 is cautious and does not attempt to define the respective fields of the convention and regulations, nor establish which takes precedence. T h e position appears to be: " I n case of divergencies in the interpretation of the two texts, the difficulty should be settled according to recognized principles of law, in particular according to the rule that a later law superseded an earlier one." 1 2 T H E PROVISIONS OF GENEVA C O N V E N T I O N I V , 1949 PERSONS AND CIRCUMSTANCES WHICH

THE C O N V E N T I O N

TO

APPLIES

i) A s the other three Geneva Conventions of 1949, the present convention's introductory provisions state that the convention 1 3 shall Ibid.., p. 83. " A r t . I, Genocide Conv., 1948. 10 Below, pp. 263 £. u Above, pp. 44 £. 8

Final Record, I I A , 787; see also ibid., pp. 675, 811, 846, Report of Committee III. " S i g n e d by 60 states.

M

Protection

of Civilians in War

157

apply to all armed conflicts which may arise between parties to the convention, whether war has been declared or not, and even if one of the participants refuses to recognize a state of war. It also applies to all partial or total occupations of the territory of a party, even if the occupation is not resisted. T h e parties undertake to respect and ensure respect for the convention in all circumstances, including those conflicts in which one or more of the participants are not parties to this convention. In the latter cases, parties to the convention are bound by it in their mutual relations; and also as regards the nonparties, provided these in fact accept and apply its provisions (Articles l and 2). There is, therefore, no "general participation clause" 14 in this convention. ii) A party may withdraw from the convention, but such a denunciation of the treaty, if made during a conflict in which the party is involved, cannot take effect until peace has been concluded and after operations connected with the release and repatriation of the persons protected by the convention have been terminated. Furthermore, the denunciation "shall in no way impair the obligations which the parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience." 15 In any case, the denunciation has effect only in respect of the party denouncing (Article 158). iii) Persons protected by the convention are those civilians who, "at a given moment and in any manner whatsoever," find themselves in the event of a conflict or occupation in the hands of a party to the conflict or occupying power of which they are not nationals. 16 T h e following persons are not considered as protected under this convention: a) Persons protected by Geneva Conventions I, II, and III, 1949. T h a t is, members of the armed forces and assimilated categories, and the w o u n d e d , sick, and shipwrecked b e l o n g i n g to those forces and categories. b) N a t i o n a l s of a state not b o u n d by the convention. Hungary has objected to this provision as contrary to the h u m a n i t a r i a n principles w h i c h the c o n v e n t i o n is

14

For the m e a n i n g of this term, see above, p. 68. See above, p. 155. 10 " T h e negative form of the phrase in the hands of a [party to the conflict or occupying] Power of which they are not nationals makes it unnecessary to m e n t i o n stateless or denationalized persons and so forth, to w h o m the I.R.O. [International R e f u g e e Organization] M e m o r a n d u m drew the attention of the Conference; stateless persons, etc., not being nationals of the D e t a i n i n g or Occupying Power are ipso jure protected persons," Final Record, IIA, 814, R e p o r t of C o m m i t t e e III. 15

Protection

158

of Civilians

in

War

17

intended to uphold. However, although such nationals may not be protected by the convention, they are protected by international law apart from the convention. 18 c) Nationals of a neutral state who are in the territory of a belligerent, and nationals of a cobelligerent state, while their own state has normal diplomatic representation 19 with the belligerent. However, neutrals in occupied territory are protected. 20 A r t i c l e s 1 3 to 2 6 of the c o n v e n t i o n do, h o w e v e r , a p p l y to a greater r a n g e of persons than is i n c l u d e d in the f o r e g o i n g definition of protected persons, c o v e r i n g the w h o l e p o p u l a t i o n s of the countries

in

conflict ( A r t i c l e 4). iv) W h e r e

a belligerent is satisfied that a n i n d i v i d u a l

protected

person in its territory is definitely suspected of, or e n g a g e d in, activities hostile to the security of the state, that person shall n o t b e entitled to c l a i m such rights a n d privileges u n d e r the c o n v e n t i o n

as

w o u l d , if exercised i n his f a v o r , b e p r e j u d i c i a l to the security of that state. 2 1 A n i n d i v i d u a l protected person d e t a i n e d i n o c c u p i e d territory as 17

Geneva Conventions . . . , (U.S. Dept. of State Pub. 3938, Gen. For. Pol. Ser. 34, 1950), p. 240. 18 See above, 154-156. 19 " 'Normal diplomatic representation' should be understood to mean that which functions in peace time comprising at least one diplomatic representative accredited to a Ministry of Foreign Affairs." Final Record, IIA, 814, Report of Committee III. 20 T h e following distinction was drawn in the convention between neutrals in the home territory of a belligerent and those in occupied territory: "When considering neutrals, we drew a distinction between those in the territory of a belligerent and those in an occupied country; in the first case, protected persons are only those whose home country is not represented diplomatically in the normal way; in the second case, on the contrary, all neutrals enjoy protection since, in their case, diplomatic representatives are accredited to the occupied State, but not to the Occupying Power; the protection afforded is therefore much less effective. Co-belligerents are far less likely to incur hardship through any measures the Occupying Power might take regarding them, their diplomatic representatives do not lose their authority and it is consequently unnecessary to protect them." Final Record, IIA, 814, Report of Committee III. 21 "Many Delegations have felt the fear that, under cover of the protection offered by our Convention, spies, saboteurs or other persons dangerous to the State may be able to abuse the rights which it provides for them. T h e Delegations have considered it their duty to prevent the guarantees of the Convention acting to the advantage of surreptitious activities . . . Owing to the very great difficulty in tracking down these underground activities, it is intended to allow the State a free hand in its defense measures without imposing any obligations under the Convention other than the duty to ensure humane and legal treatment . . . T h e wording of this Article will perhaps be criticised as being almost too elastic. It must however be pointed out that threats to security can take so many different forms that it is hardly possible to give a more exact definition of the 'rights and privileges' which may be withdrawn. It has in any case been specified that the elasticity of the wording must not be taken as a justification of any arbitrary action and that the provision would only apply in the case of serious and definite suspicions." Final Record, IIA, 814-815, Report of Committee III.

Protection

of Civilians in War

159

a spy or saboteur, or person under definite suspicion of activity hostile to the security of the occupying power, shall, where absolute military security so requires, be regarded as having forfeited rights of communication under the convention. 22 These persons must nevertheless be treated with humanity, and if tried shall not be deprived of the rights of fair and regular trial prescribed by the convention. 23 They must also be granted the full rights and privileges of a protected person under the present convention at the earliest date consistent with the security of the state or occupying power (Article 5).24 Here again Hungary raised serious objections, alleging that according to the terms of the article mere suspicion could deprive persons of protection under the convention, rendering any hope of realizing the fundamental principles of the convention illusory. 25 There is indeed little doubt that this article could form a pretext for avoiding compliance with terms of the convention, but, it must be stressed, the article applies to "individual protected persons," so that any attempt to deprive large groups of protected persons of their rights under this convention would immediately arouse the suspicion of bad faith on the part of the state concerned. Still, in individual cases much is left to the good faith of a belligerent, a quality which is often unable to support any considerable strain in time of war, especially where a discretion may be exercised. Use could also be made of the article to hinder any protection that might be afforded by the protecting powers. Yet, on the other hand, unlawful confinement of a protected per" I n occupied territory the fact that a national of the O c c u p i e d Power harbors resentment against the O c c u p y i n g Power is likewise insufficient [to justify the application of this provision]. Moreover, there can be no question of collective measures; the charges must be individual. In this case, the rights which the person may forfeit are more restricted to communication with third parties; their forfeiture is equivalent to placing the accused in solitary confinement. If this second paragraph deals with military security, whereas the first paragraph deals with the security of the state, the reason is that occupied territory is ruled by a military government which exercises its powers in conformity with the laws and customs of war laid down in the H a g u e Conventions." Ibid., p. 815. T h e rights of communication are set o u t in Arts. 25, 30, 101, 106, and 107. Br.M.M.L., Pt. I l l , pars. 570, n. 2; 573, n. 1; 574, n. 1, appear to go further than Art. 5, par. 2, justifies. 22

23 See A r t . 38, above, ritory; and Arts. 7 1 - 7 5 , territory. If prosecuted, ducted trial. BrM.M.L.,

p. 47, for rights of protected persons in belligerent's terbelow, pp. 250 f., for rights of protected persons in occupied any person, protected or not, is entitled to a properly conPt. I l l , par. 562, n. 2.

31 " T h e third paragraph defines w h a t was left somewhat v a g u e by the first two paragraphs. It confirms the obligations of the state as regards h u m a n e treatment and correct penal procedure; it does nothing to weaken the force of the prohibition of torture or brutal treatment." Final Record, I I A , 815, R e p o r t of Committee III. 25

Geneva

Conventions

. . . , p. 240.

i6o

Protection

of Civilians

in War

son constitutes a grave and punishable breach of the convention. 26 v) T h e convention applies from the outset of any conflict or occupation mentioned in Article 2.27 It ceases to apply in the territory of the belligerents on the general close of military operations. 28 In occupied territory, however, it continues to apply for one year after the general close of military operations and then ceases, but even then the occupying power, to the extent it exercises the functions of government in that territory, is bound for the duration of the occupation by the provisions of certain Articles. 29 Further, where release, repatriation or reestablishment 30 of protected persons takes place after such dates, they must in the meantime continue to benefit by the convention (Article 6). vi) In addition to various agreements expressly provided for by the convention, the parties may conclude other special agreements. However, no special agreement can adversely affect the situation of protected persons, as defined by the convention, nor restrict the rights it confers on them. 31 Protected persons must continue to have the benefit of such special agreements for as long as the convention itself is applicable to them, except where express provisions to the contrary are contained in those or later agreements, or where more favorable measures have been taken with regard to them by one or other of the belligerents (Article 7). vii) Protected persons may in no circumstances renounce in part or entirety the rights secured to them by the convention or any such special agreements (Article 8). ""See Arts. 147, 148, below, pp. 195-196; and Art. 29, for responsibility of the state, below, p. 169. 27 "Occupation" includes not only occupation during war, but sudden occupation without war as provided in Art. 2. Final Record, IIA, 815, Report of Committee III. x These words mean "when the last shot has been fired." They were used rather than "conclusion of hostilities" to avoid any confusion in countries such as France, which determine "the conclusion of hostilities" by decree, which automatically repeals all internal war legislation. Loc. cit. M Namely, Arts. 1-12, 27, 29-34, 47, 49, 51, 52, 53, 59, 61-77, 143. 30 T h e term " 're-establishment' . . . relates to protected persons who cannot be repatriated, because, for example, they would be liable to persecution in their own country (Article [45], fourth paragraph) or because their homes have been destroyed. This implies that they will have to be settled in new homes." Final Record, IIA, 816, Report of Committee III. " See footnote to corresponding Art. 6, Geneva Conv. I, 1949, above, p. 70. In The Milch Case (United States v. Milch) (1947), U.S. Mil. Trib., Nuremberg, L.R.T.W.C., VII, at pp. 38, 46, the court rejected the purported justification for the employment during World War II of French forced labor on German war work in Germany in an alleged agreement between the Vichy government of France, and Germany.

Protection

of Civilians

in War

161

SUPERVISION BY PROTECTING POWERS AND HUMANITARIAN ORGANIZATIONS

T h e present convention repeats in substance, and almost verbatim, the provisions in this regard of Geneva Convention I, 1949,32 which have already been discussed, 33 but now with reference to protected persons (Articles 9-12). T h e Soviet Union, a number of associated powers, and Portugal make the same reservation to Article 11 of the present convention that they make to Article 10 (the corresponding provision) of Geneva Convention I. Also, Article 11 provides that its provisions shall extend and be adapted to nationals of a neutral state who are in occupied territory or who find themselves in the territory of a belligerent state in which their own state has not normal diplomatic representation. PROTECTION OF THE ENTIRE POPULATIONS OF THE BELLIGERENTS

34

i) As was indicated earlier, 35 the provisions under this heading afford protection not only to the persons who are defined as protected under Article 4, but cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion, or political opinion, 36 and are intended to alleviate the sufferings caused by war (Article 13). ii) In peace time, the parties to the convention and, after the outbreak of hostilities, the belligerents, may establish in their own territory and, if the need arises, in occupied areas, hospital and safety " Geneva Convs. II and III, 1949, have similar provisions. A b o v e , pp. 70-72. 84 " T h e s e Articles are applicable to the w h o l e of the populations of countries in conflict; they thus concern not only the relations between a given State and aliens b u t also the relations between a given State and its o w n nationals. V a r i o u s Delegations criticised this principle, as they consider it inconsistent to impose on contracting States, in an international treaty, duties towards their o w n nationals. It cannot be denied the regulations set forth in Part II [i.e., the articles u n d e r the present heading] are not in entire agreement with the traditional view of international law. It should not be forgotten that the scope of that law is g r a d u a l l y b e c o m i n g wider. T h e International Declaration of the R i g h t s of M a n is in itself evidence in support of this contention." Final Record, I I A , 816, R e p o r t of Committee III. " A b o v e , p. 158. " T h i s enumeration is illustrative not limitative. Final Record, I I A , 816, R e p o r t of C o m m i t t e e III. 33

162

Protection

of Civilians

in War

zones and localities so organized as to protect from the effects of war wounded, sick, and aged persons, children under fifteen, expectant mothers, and mothers of children under seven. O n the outbreak and during the course of hostilities, parties may conclude agreements on mutual recognition of the zones and localities they have created. For this purpose they may implement the provisions of the draft agreement 37 annexed to the convention, with any necessary amendments. T h e protecting powers and the International Committee of the Red Cross should lend their good offices to facilitate the institution and recognition of these zones and localities (Article 14). These provisions parallel provisions relating to the wounded and sick of the armed forces contained in Geneva Convention I, 1949 (Article 23),38 and the draft agreements annexed to the two conventions are also substantially the same. Together with Article 15 (below) which provides for the establishment of neutralized zones, these provisions represent a new and important attempt to shield the young, the helpless, and the citizen who has no part in the war. iii) Any belligerent may propose to the adverse party either directly, 39 or through a neutral state or humanitarian organization, the establishment, in the regions where fighting is taking place, of neutralized zones intended to shelter from the effects of war the following persons, without distinction: a) wounded and sick combatants or noncombatants; b) civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.

Any agreement must be in writing, signed by representatives of the belligerents, and shall include the geographical position of the zone, its administration, food supply, supervision, and the beginning and duration of the neutralization (Article 15). iv) T h e wounded, sick, infirm, and expectant mothers must be particularly protected and respected. As far as military considerations allow, each belligerent must facilitate steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment (Article 16). v) T h e belligerents must endeavor to conclude local agreements for Annex I to the convention; see Appendix I, below. Above, pp. 84-85. aB Direct proposals may be made through diplomatic or military channels indifferently. Final Record, IIA, 817, Report of Committee III. Such agreements may be concluded either by the governments or by subordinate military commanders. U.S. Law 254b. 87

38

Protection

of Civilians in War

163

the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children, and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment 40 on their way to such areas (Article 17). Previously there was no rule of law obliging the commander of an investing force to permit any noncombatants to leave the besieged locality, even when a bombardment was about to begin. 41 O n the contrary, they were often not permitted to leave, as a means of bringing pressure on the defenders to surrender. As for entry into a besieged area, it was the absolute right of the investing commander to forbid all communication between it and the outside. 42 T h e present article is an attempt to mitigate the rigors of the previous practice. vi) Civilian hospitals organized to give care to the wounded, sick, infirm, and maternity cases may in no circumstances be the object of attack, but must be respected and protected by the belligerents at all times. Belligerent states must provide civilian hospitals with certificates showing that they are civilian hospitals and that the buildings they occupy are not used for any purpose which would deprive them of protection. 43 These hospitals shall be marked with the red cross on a white ground, or the recognized equivalents used by certain countries, but only if so authorized by the state.44 The belligerents must, so far as military considerations permit, take the necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land, air and naval forces to obviate the possibility of any hostile action. It is recommended that such hospitals be situated as far as possible from military objectives (Article 18). This article makes more comprehensive and extends Article 27 of the Hague Regulations which states that in sieges and bombardments all necessary steps must be taken to spare hospitals, as far as possible. Article 27 provided that these (and other) protected buildings should

" T h i s includes bedding for the wounded and sick. Ibid., p. 818. 41 U.S. Rules 51, 55; Br.M.M.L., chap, xiv, par. 125. See also below, p. 349, n. 140. 42 U.S. Rules 57; Br.M.M.L., chap, xiv, par. 132. For further discussion of topic, see below, under " C o n d u c t of a Siege."

this

" T h e circumstances under which protection ceases are given in Art. 19. States may delegate the actual issuing of the certificates to a proper authority within the state, the state itself remaining entirely responsible. Final Record, I I B , 469. 44 T h i s qualification is to prevent misuse of the emblem, and "is in no way [to] be understood in a restrictive sense. It was obvious that a State w o u l d have no reason for refusing recognition to any establishment w h i c h was, in fact, a hospital." Ibid.., I I A , 702.

164

Protection of Civilians in War

be indicated by distinctive and visible signs, to be notified beforehand to the enemy. That article, however, did not specify the nature of such signs. The present convention fills that gap in relation to hospitals. However, it may be remarked that "marking is doubtless of a declaratory and not of a constitutive nature," 45 in other words, buildings known to be hospitals must be respected and protected irrespective of whether or not they are marked. The present article will also in effect replace Article 5 (2) of Hague Convention IX, 1907, concerning bombardment by naval forces in time of war, which requires for the purpose of protection from such bombardment that (inter alia) hospitals and places where sick and wounded are collected should be indicated by visible signs consisting of large stiff rectangular panels divided diagonally into two painted triangular portions, the upper portion black, the lower portion white. However, it is to be noted that under the provisions of Article 18 the red cross, etc., can only be displayed if authorized by the state, whereas under Article 5 of Hague Convention I X the duty of displaying the black-and-white panels devolves on the inhabitants themselves without reference to state authorization. Independent action by local inhabitants must presuppose the absence of state authority locally, even in a delegated form. vii) Where civilian hospitals are used to commit, outside their humanitarian duties, acts harmful to the enemy,46 their protection ceases, but only after due warning has been given, naming a reasonable time limit in all appropriate cases, and after such warning has remained unheeded. The fact that sick and wounded of the armed forces are nursed there, or that there are present small arms and ammunition taken from such combatants and not yet handed to the proper service, shall not be considered acts harmful to the enemy (Article 19) 47 viii) Personnel regularly and solely engaged in the operation and administration of civilian hospitals,48 including those engaged in 16

Ibid., p. 8 1 8 , R e p o r t of Committee I I I . " " T h i s expression . . . covers not only acts of warfare proper, but any activity characterizing combat action, such as setting u p observation posts, or the use of the hospital as a liaison center for fighting troops." Loc. cit. " " T h e hard-and-fast distinction between military and civilian hospitals drawn under the 1929 Convention will thus be abolished. T h i s is a welcome simplification as it frequently happens that specialized services (radioscopy etc.) are shared by members of the forces and by civilians." Final Record, I I A , p. 8 1 9 , R e p o r t of Committee I I I . 48 T h i s w o u l d include not only personnel in direct contact with the w o u n d e d and sick, but the hospital personnel as a whole including such persons as cooks on the regular staff. Loc. cit.

Protection

of Civilians

in War

165

the search 49 for, removal, transport, and care of wounded and sick civilians, the infirm, and maternity cases, must be respected and protected. In occupied territory and zones of military operations, such personnel shall be recognizable by an identity card certifying their status, bearing the holder's photograph and embossed with the stamp of the responsible authority; and also by a stamped, waterresistant armlet bearng the red-cross emblem (or equivalents) on a white ground, worn on the left arm while carrying out their duties. T h i s armlet shall be issued by the state. Other personnel engaged in the operation and administration of civilian hospitals are also entitled to respect and protection and to wear the armlet while engaged on such duties. T h e i r identity cards shall state the duties on which they are employed. T h e management of each hospital shall hold at the disposal of the competent national or occupying authorities an up-to-date list of such personnel (Article 20). ix) Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians, the infirm, and maternity cases, shall be respected and protected in the same manner as civilian hospitals. 60 T h e y shall be marked, with the consent of the state, by displaying the red cross (or equivalents) (Article 21). x) Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm, and maternity cases, or for the transport of medical personnel and equipment, shall not be attacked, but shall be respected while flying at heights, times, and on routes specifically agreed upon between belligerents. They may be marked with the red-cross (or equivalent) emblem. Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited. Such aircraft shall obey every summons to land. In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after examination, if any (Article 22). B 1 x) Each convention party must allow free passage 52 of all consignments of medical and hospital stores and objects necessary for M E.g., "hospital personnel who, in the event of catastrophes or of fire, explore ruins with the object of saving victims." Loc. cit. 00 See Art. 18, above. 51 These provisions may be compared with those for medical aircraft in Art. 36, Geneva Conv. I, 1949. 62 "Free passage" as used here means "free passage through an economic blockade." Final Record, IIA, 763.

Protection

i66

of Civilians in War

religious worship intended only for civilians 53 of another party, including those of its adversary. Similar free passage must be permitted for all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases. Such free passage is, however, subject to the condition that the party permitting it is satisfied there are no serious reasons for fearing: a) that the consignments may be diverted f r o m their destination. b) that the control may not be effective, or c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of such consignments for goods which

would

otherwise be provided or produced by the enemy, or through the release of such material, services, or facilities as would otherwise be required for the production of such goods.

T h e party permitting may also impose a condition that the consignments be distributed under the local supervision of the protecting powers. T h e consignments must be forwarded as rapidly as possible, and the party permitting 54 has the right to prescribe the technical arrangements under which passage is allowed (Article 23). Thi^article has particular reference to blockade, and the conditions stated obviously allow of a wide latitude on the part of the blockading power whether to allow the passage of the consignments. 55 However, while a great deal is left to the good faith of that power, good faith must be exercised. Regarding the third condition, while the passage of consignments of the goods mentioned will practically always release materials, services, and facilities for other purposes, it must be noted that they may only be stopped by the blockading power if it has serious reasons for fearing that as a result a definite advantage may accrue to the military effort or economy of the enemy. A definite advantage can only be construed as a marked and substantial advantage, one which stands out in relation to the enemy's whole war effort or economy, otherwise the article must be a mere nullity. 56 M

I.e.,

Ibid., p.

"the whole of the populations of the countries in conflict"

(Article

13).

636. Excluded are "medicaments intended for enemy forces, e.g., medica-

ments intended to combat malaria in certain territories peculiarly exposed to this disease." Ibid., p. 820, R e p o r t of C o m m i t t e e III. 64 I.e., the party enforcing the blockade. Ibid., p. 636.

Ibid., p.

M

See remarks,

59

T h e U n i t e d K i n g d o m representation speaking on behalf of a power particularly

820, Report of Committee III.

interested in questions concerning blockade

and counter-blockade

(ibid., p.

635)

stated "that the main question considered by a blockading Power in relation the passage of supplies, would

be whether

those supplies would, or would

be of ultimate benefit to the war effort of an opposing belligerent." See also,

Br.M.M.L.,

Pt. I l l , par. 35, n. 1.

Ibid.,

to

not,

p. 637.

Protection

of Civilians in War

167

xi) T h e belligerents must ensure that children under fifteen, orphaned or separated from their families 57 as a result of the war, are not left to their own resources, and that their maintenance, exercise of their religion, and education are facilitated. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition. T h e belligerents shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of (the children's) protecting power, if any, 58 and under due safeguards for the observance of the principles stated at the beginning of this paragraph. Furthermore, they must endeavor to arrange for children under twelve to be identified by wearing identity discs, or by some other means (Article 24). xii) A l l persons in the territory of a belligerent, including occupied territory, must be enabled to give news of a strictly personal nature to members of their families, wherever they may be, and to receive news from them. T h e correspondence must be forwarded speedily and without undue delay. 59 If as a result of circumstances it becomes difficult or impossible to exchange family correspondence by the ordinary post, belligerents must apply to a neutral intermediary, such as the Central Information Agency for protected persons,60 and decide in consultation with it how to ensure the fulfillment of their obligations under the best possible conditions, in particular with the cooperation of the national Red Cross societies. If the belligerents deem it necessary to restrict family correspondence, such restrictions shall be confined to the compulsory use of standard forms containing twenty-five freely chosen words, and at least one form may be dispatched each month (Article 25). xiii) Each belligerent must facilitate inquiries made by members of families dispersed by the war, with the object of renewing contact and of meeting, if possible. In particular they shall encourage the work of organizations engaged on this task, provided they are acceptable to it and conform to its security regulations (Article 26). T h i s is wider than children separated from "their parents." Ibid., p. 820. " W h e n the children in question are nationals of the country in which they are, they have no Protecting Power." Loc. cit. 59 Not necessarily by air. Final Record, IIA, 821. 60 See Art. 140, below, p. 94. 67

68

Protection

i68

of Civilians

in

War

STATUS AND T R E A T M E N T OF PROTECTED PERSONS PROVISIONS APPLICABLE TO A L L PROTECTED PERSONS

i) Protected persons are entitled in all circumstances to respect for their

persons,

honor,

family

rights, 6 1

religious

convictions

and

practices, 62 and their manners and customs. 83 T h e y shall at all times be h u m a n e l y treated, a n d protected especially against threats or acts of violence, insults a n d p u b l i c curiosity. W o m e n shall be especially protected against any attack on their honor, i n particular rape, enforced prostitution, 6 4 or any f o r m of indecent assault. E x c e p t for the provisions relating to their state of health, age, and sex, all protected persons shall be treated w i t h the same consideration by the belligerent in whose power they are, w i t h o u t any adverse distinction based, in particular, on race, religion, or political o p i n i o n . The

belligerents may, however, take such measures of control

security

in regard

result of the war

to protected

persons

as may

be

necessary

and as a

(Article 27). 65

61 An unusual example of an offense against family rights was the forced separation of babies from their mothers shortly after birth, which appeared as incidental to even graver charges of homicide in The Velpke Baby Home Trial (Trial of Gerike, et al.) (1946), Brit. Mil. Trib., Germany, WCT Series, VIII; see introduction, p. xlvi. ""Some World W a r II examples of offenses against religious rights are: (1) Trial of Zuehlke (1948), Netherlands Special Court of Cassation, L.R.T.W.C., XIV, at p. 146, where it was held, " T h i s Court . . . is of the opinion that the refusal to allow spiritual assistance to someone under sentence of death does . . . in itself definitely constitute a crime, both a war crime and a crime against humanity." (2) T h e Polish Supreme National T r i b u n a l declared as a crime under international law, "Repression, genocidal in character, of the religion of the local population by mass murder and incarceration in concentration camps of Polish priests including bishops; by restriction of religious practices to the minimum; and by the destruction of churches, cemeteries and the property of the Church." Trial of Greiser (1946), L.R.T.W.C., XIII, 112. (3) "Forced conversion to any other faith" is declared a war crime by Art. 3 (3) of the Yugoslav War Crimes Law of August 25, 1945; see L.R.T.W.C., X V , 208.

"Denationalization is a war crime; see Report of 1919 Commission on Responsibilities. History of the U.N. War Crimes Commission . . . , p. 34. T h e crime of denationalization need not necessarily also constitute genocide. For some examples of forced Germanization, see The RuSHA Case (United States v. Greifelt, et al.) (1948), U.S. Mil. Trib., Nuremberg, L.R.T.W.C., XIII, at pp. 21, 22, 23. 64 For a World War II case of enforced prostitution, see Trial of Washio Awochi (1946), Netherlands T e m p . Ct.-Martial, L.R.T.W.C., XIII, 122. 66 Compare this article with Art. 4 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome, Nov. 4, 1950, by members of the Council for Europe, which states: " N o one shall be held in slavery or servitude." T h i s provision applies equally "in time of war or other public emergency threatening the life of the nation" (Art. 15). In the Trial of Zuehlke, above, at p. 145, the court held that illegal detention in the nature

Protection

of Civilians

in War

169

T h i s article replaces, in effect, the first paragraph of Article 46 of the Hague Regulations, 1907, although the latter remains technically still in force. 66 T h i s provision states: "Family honor and rights, individual life, and private property, as well as religious convictions and worship must be respected." 67 T h e last sentence of the present article "does not re-establish arbitrary governmental power, it deals only with such persons as really constitute a danger for the security of the State and it leaves intact the general prohibitions imposed by the humanitarian principles of the Convention." 68 ii) T h e presence of a protected person may not be used to render certain points or areas immune from military operations (Article 28). T a k i n g this article in conjunction with Articles 33 and 34, discussed below, which prohibit reprisals against protected persons and the taking of hostages, such practices known as "prophylactic reprisals," whereby prominent inhabitants are placed on the engines of trains in occupied territory to ensure the lines of communication against attack by the inhabitants of that territory, 69 are definitely illegal. T h e use of hostages to prevent legitimate hostilities by the enemy, as for example, as a screen for forces, was an illegal act even before the present convention. 70 iii) T h e belligerent in whose hands protected persons may be is responsible for the treatment accorded to them by its agents, 71 irrespective of any individual responsibility which may be incurred (Article 29). iv) Protected persons must have every facility for making application to the protecting powers, the International Committee of the Red Cross, the national Red Cross Society of the country where they of persecution on racial or religious grounds was a crime against h u m a n i t y as an " i n h u m a n e act" under Art. 6 (c) of the Nuremberg charter. Ill treatment of prisoners was also dealt with as a crime against h u m a n i t y and a war crime; loc. 80

cit. See Art. 154 of the convention, above, p. 156.

87 T o break u p families by unreasonable and u n l a w f u l separation of their m e m bers, including deportation, constitutes a violation of family honor and rights. H y d e , III, 1900. 98Final

Record,

I I A , 821, Report of Committee III.

See U.S. Rules 359; Br.MMJL., 70 O p p e n h e i m , II, 460, 461.

60

chap, xiv, pars. 462, 463; ibid., Pt. I l l , par. 651.

71 I.e., persons employed by the state; b u t occupied power which continue to function local authorities handed certain powers by I I A , 822, R e p o r t of Committee III. However, actions, irrespective of state responsibility.

not, for example, the courts of the under the occupation (Art. 64), or the occupying power. Final Record, individuals are responsible for their

170

Protection

of Civilians

in War

may be, as well as to any organization that might assist them. These various organizations must be granted all facilities for that purpose by the authorities, within the bounds set by military or security considerations. Apart from the visits of the delegates of the protecting powers and the International Committee of the Red Cross, 72 the detaining or occupying powers shall facilitate as much as possible visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons (Article 30). v) N o physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or third parties (Article 31). T h i s article replaces, in effect, Article 44 of the Hague Regulations, 1907, which although technically still in force 73 states: " A belligerent is forbidden to compel the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defence." vi) T h e contracting parties are prohibited from taking any measure of such character 74 as to cause physical suffering or extermination of protected persons in their hands. 75 T h i s prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, 76 but also to any other measures of brutality whether applied by civilian or military agents (Article 32).77 vii) N o protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is See Art. 143, below, under "Execution of the Convention." " S e e Art. 154; note 66, above. " T h e intent of the malefactors does not afford them a defense. Final Record, IIA, 719. 75 T h e term "in their hands" was inserted to preclude any interpretation that the article regulates the conduct of military operations or encroaches on the sphere of the Hague Regulations. It applies only to protected persons in the control of the state in question and not to protected persons in the hands or under the control of some other state or government. That means with respect to a particular government the article protects aliens in its home territory and the inhabitants of any territory which that state may be occupying. Ibid., IIB, 407-410. 76 For human fiendishness under the guise of medical experiments and research, see The Medical Case (United States v. Brandt, et al.) (1947), U.S. Mil. Trib., Nuremberg, TWC, I; Trial of Hoess (1947), Supreme National Tribunal of Poland, L.R.T.W.C., VII, 11 (Hoess was commandant of the Auschwitz concentration camp). 77 Compare this article with Art. 3, Convention for the Protection of Human Rights and Fundamental Freedoms, above, which states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." This provision applies equally "in time of war or other public emergency threatening the life of the nation" (Art. 15). 73

Protection

of Civilians

in War

171

prohibited. Reprisals against protected persons and their property are prohibited (Article 33). Reprisals by way of collective penalties, a practice hitherto considered legal when not excessive nor exceeding the degree of violence committed by the enemy, 78 are now definitely illegal. Collective penalties other than those in the nature of reprisals were previously banned in the sense of Article 50 of the Hague Regulations, 1907: " N o collective penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which it cannot be regarded as collectively responsible." T h e provisions of Article 33 of the present convention are, however, much more comprehensive and far-reaching and, in effect, replace Article 50 of the Hague Regulations. T h e latter, by Article 47, also expressly forbade pillage. Illegal arrest and detention is a war crime, as are indiscriminate mass arrests for the purpose of terrorizing the population. 7 9 viii) T h e taking of hostages is prohibited (Article 34). T h i s categorical prohibition puts an end to former practices of taking hostages from the civilian population for various purposes, such as ensuring against unlawful acts by the enemy forces or people, to ensure proper treatment of wounded and sick left behind in hostile localities, to protect the lives of prisoners who have fallen into the hands of irregular troops or whose lives have been threatened, to protect lines of communication by placing hostages on the engines of trains in occupied territory, and to ensure compliance with requisitions and contributions. 80 N o civilian hostages may now be taken for any purpose. REGULATIONS FOR T H E T R E A T M E N T OF INTERNEES

General Provisions i) T h e Belligerents must not intern protected persons except as an absolutely necessary measure of control for imperative reasons of See BrM.M.L., c h a p , xiv, pars. 458, 459; U.S. Rules 358. " S e e Trial of Becker, et al. (1947), French Mil. T r i b . , France, L.R.T.W.C., VII, 67. See also below, p. 417. In Trial of Motomura, et al. (1947), N e t h e r l a n d s T e m p . Ct.-Martial, Macassar, L.R.T.W.C., X I I I , 143, the court stated: " U n l a w f u l mass arrests are to be understood as arrests of groups of persons firstly on the g r o u n d of w i l d rumors a n d suppositions, a n d secondly w i t h o u t definite facts a n d indications b e i n g present with regard to each person w h i c h w o u l d j u s t i f y his arrest." Mass arrests contain " t h e elements of systematic terrorisation, f o r n o b o d y , even the most innocent, was any longer certain of his liberty, a n d a person once arrested, e v e n if absolutely innocent, c o u l d no longer be sure of h e a l t h a n d l i f e . " 80 See U.S. Rules 358, 359; Br.M.M.L., chap, xiv, pars. 461-464; also b e l o w , u n d e r "Hostages." 78

172

Protection

of Civilians in War

security, or where such person voluntarily demands internment and his situation renders this necessary, or as a punishment for a simple offense against the occupying power. Decisions must be made in accordance with the convention provisions which also provide for review, appeal, and notification to the protecting power 81 (Article 79)ii) Internees retain their full civil capacity and can exercise such attendant rights as may be compatible with their status (Article 80). T h a t is, the fact that they are interned does not add any legal disability which did not affect them before the internment. For instance, they have the same contractual capacity in internment that they had before. However, internment, by its very nature, may limit the exercise of their rights by internees. iii) Belligerents who intern protected persons are bound to provide free of charge for their maintenance, and to grant them the medical attention their state of health requires. 82 No deduction can be made from the allowances, salaries, or credits due to the internees for the payment of these costs. T h e detaining power must pay for the support of those dependent on the internees who are without adequate means of support or are unable to earn a living 83 (Article 81). Civilian internees, like prisoners of war, are in the power of the government which detains them. T h e responsibility for their care, therefore, rests on that government. 84 iii) T h e internees must be accommodated, as far as possible, according to their nationality, language, and customs. Those who are nationals of the same country must not be separated merely because they have different languages. Members of the same family, in particular parents and children, must be lodged together in the same place of internment for the duration of their internment, except when temporary separation is necessitated for reasons of employment, health, or to enforce penal and disciplinary sanctions.85 Internees may request that their children who are left at liberty without parental See Arts. 41, 42, 43, above, pp. 50-51; Arts. 68, 78, below, pp. 247-248, 253-254. In the case of In re Kondo Shuichi (1946), Temp. Ct.-Martial, Batavia, Netherlands East Indies, Ann. Dig., 1946, Case No. 171, an internment camps medical officer was sentenced to death for withholding essential medical aid and necessary medicines from civilian internees and for other maltreatment resulting in deaths of internees. 83 Cf. Art. 39, par. 2. 81 Tokyo Judgment, p. 28. 85 See Arts. 117-126, below, under "Penal and Disciplinary Sanctions." T h e grounds stated in Art. 82 are the sole grounds which could justify the temporary separation of families in internment. Final Record, IIA, 836, Report of Committee III. 81

83

Protection

of Civilians in War

173

care86 shall be interned with them. Wherever possible, the same family must be housed in the same premises, with separate accommodation from the other internees, together with facilities for leading a proper family life (Article 82). Places of Internment i) T h e detaining power must not set up places of internment in areas particularly exposed to the dangers of war. It must give the enemy powers, through the intermediary of the protecting powers, all useful information regarding their geographical location. Whenever military considerations permit, the internment camps87 must be indicated by the letters 1C, placed so as to be clearly visible in the daytime from the air, although powers may agree on any other system of marking. N o place other than an internment camp shall be marked as such (Article 83). ii) Internees must be accommodated and administered separately from prisoners of war and from persons deprived of liberty for any other reason88 (Article 84). iii) A l l necessary and possible measures must be taken by the detaining power to ensure, from the outset of internment, that the protected persons are accommodated in buildings and quarters affording every possible safeguard of hygiene and health, and providing efficient protection against the rigors of the climate: and the effects of the war. Permanent places of internment must never be situated in unhealthy areas or districts with a climate injurious to the internees. If a protected person is temporarily interned in such an area or district, he must be removed to a more suitable place of internment as rapidly as possible. T h e premises shall be fully protected from dampness, and adequately heated and lighted, in particular between dusk and lights out. T h e sleeping quarters shall be sufficiently spacious and well ventilated, with suitable bedding and sufficient blankets, taking account of the climate, and the age, sex, and state of health of the "I.e.,

where both parents or the sole surviving parent are interned. Loc.

cit.

" T h e word " c a m p " is used intentionally in contradistinction to mere " 'places of internment' . . .

it

being regarded as unreasonable

to require

the

marking,

for

example, of places where internees are kept merely in temporary custody p e n d i n g transfer to a place of permanent internment, or the marking of hospitals or institutions simply because internees are being treated there." Loc. 88

use

If, for example, states attacked without parts

of

existing

available. Final

Record,

prisons

until

more

cit.

warning have, in the emergency, suitable

internment

I I A , 836-837, R e p o r t of C o m m i t t e e III.

premises

to

become

174

Protection

of Civilians

in War

internees. T h e r e must be sanitary conveniences for day and night use which conform to the rules of hygiene and are constantly maintained in a state of cleanliness. T h e internees shall be provided with sufficient water and soap for their daily personal toilet and for washing their personal laundry, together with the necessary installations and facilities. Showers or baths must be available. T h e necessary time shall be set aside for washing and for cleaning. ' Whenever it is necessary, as an exceptional and temporary measure, to accommodate women internees who are not members of a family unit in the same place of internment as men, the provision of separate sleeping quarters and sanitary conveniences for the use of women is obligatory (Article 85). iv) T h e detaining power must place at the disposal of interned persons, of whatever denomination, premises suitable for the holding of their religious services (Article 86). v) Canteens shall be installed in every place of internment, except where other suitable facilities 89 are available, to enable internees to make purchases, at prices not higher than local market prices, of foodstuffs and articles of everyday use (including soap 90 and tobacco) which increase their personal well-being and comfort. Profits made by the canteens are credited to a welfare fund 9 1 to be set u p for each place of internment, and administered for the benefit of the internees attached to that particular place of internment. T h e Internee Committee 9 2 has the right to check the management of the canteen and the fund. W h e n a place of internment is closed down, the balance of the welfare fund must be transferred to the welfare fund of a place of internment for internees of the same nationality, or, if there is no such place, to a central welfare fund administered for the benefit of all internees remaining in the custody of the detaining power. After a general release, the profits are kept by the detaining power, unless there is an agreement to the contrary between the powers (Article 87). vi) In places of internment exposed to air raids and other hazards of war, shelters adequate to ensure protection must be installed. In 89 .E.g., if internees have access to, and the facilities to purchase from, local shops. Ibid., p. 837. 90 E.g., soap of a particular kind, of the internee's own choice, in contradistinction to that provided by the detaining power under Art. 85. T h i s is not intended to allow the internee a greater ration than that which applies to the general population. Loc. cit. 81 T h e welfare fund is not limited to monies obtained from canteen profits. Loc. cit. ea See Art. 10a, below.

Protection

of Civilians in War

175

case of alarms, the internees must be free to enter such shelters as quickly as possible, except for those who remain to protect their quarters against those hazards. Any protective measures taken in favor of the population must also apply to them. All due precautions against danger of fire must be taken in places of internment (Article 88). Food and Clothing i) Daily food rations must be sufficient in quantity, quality, and variety to keep internees in a good state of health and prevent the development of nutritional deficiencies. Account is also to be taken of their customary diet. They shall also be given the means to prepare for themselves any additional food in their possession. Sufficient drinking water must be supplied, and the use of tobacco permitted. Internees who work shall receive additional rations in proportion to the kind of labor they perform. Expectant and nursing mothers, and children under fifteen years must be given additional food, in proportion to their physiological needs (Article 89). ii) When taken into custody, internees must be given all facilities to provide themselves with the necessary clothing, footwear, and change of underwear, and, later, to procure further supplies if required. Those that do not have sufficient clothing, taking climate into account, and are unable to procure any, shall have it provided to them free of charge by the detaining power. Clothing supplied by the detaining power and the outward markings placed on the internees' own clothes must not be ignominious nor expose them to ridicule. Workers must receive suitable working outfits, including protective clothing, whenever the nature of their work so requires (Article 90). Hygiene and Medical Attention i) Every place of internment must have an adequate infirmary, under the direction of a qualified doctor, where internees may have the attention they require, as well as an appropriate diet. Isolation wards shall be set aside for contagious or mental diseases. Maternity cases and internees suffering from serious diseases, or whose condition requires special treatment, surgical operation, or hospital care, must be admitted to any institution where adequate treatment can be given. They shall receive care not inferior to that provided for the general population. Internees shall, for preference, have the attention of medical personnel of their own nationality. They may not be prevented

176

Protection

of Civilians in War

from presenting themselves to the medical authorities for examination. Upon request, the medical authorities of the detaining power must issue to every internee who has undergone treatment an official certificate showing the nature of his illness or injury, and the duration and nature of the treatment given. A duplicate certificate is to be forwarded to the Central Information Agency for protected persons.93 Treatment is free of charge to the internee, and this includes the provision of any apparatus necessary for the maintenance of good health, particularly dentures, other artificial appliances, and spectacles (Article 91). ii) Medical inspections of internees shall be made at least once a month. Their purpose shall be, in particular, to supervise their general state of health, nutrition, and cleanliness, and to detect contagious diseases, especially tuberculosis, malaria, and venereal diseases. T h e inspections shall include, in particular, the checking of each internee's weight and, at least once a year, radioscopic examination (Article 92). Religious, Intellectual, and Physical Activities i) Internees must enjoy complete latitude in the exercise of their religious duties, including attendance at the services of their faith, on condition they comply with the disciplinary routine 94 prescribed by the detaining authorities. Interned ministers of religion shall be allowed to minister freely to the members of their community. For this purpose they shall be equitably allocated among the various places of internment in which there are internees speaking the same language and belonging to the same religion. Where such ministers are too few in number, the detaining power shall provide them with the necessary facilities, including means of transport, for moving from one place to another, and they shall be authorized to visit any internees in hospital. Ministers shall be at liberty to correspond on matters concerning their ministry with the religious authorities in the country of detention and, as far as possible, with the international religious organizations of their faith. Such correspondence is not part of any correspondence quota allowed to internees,95 but it is subject to censorship and temporary suspension for military or political reasons.96 Art. 140, below, p. 94. " F o r the exercise of their religious duties. " S e e Art. 107, below. " S e e Art. 11 a, below. 98

Protection

of Civilians in War

177

Where there are too few or no ministers of their faith at the disposal of the internees, the local religious authorities of the same faith may appoint, in agreement with the detaining power, a minister of the internees' faith or, if such a course is feasible from a denominational point of view, a minister of similar religion or a qualified layman. T h e latter shall enjoy the facilities granted to the ministry he has assumed. Persons so appointed must comply with all regulations laid down by the detaining power in the interests of discipline and security (Article 93). ii) T h e detaining power must encourage intellectual, educational, and recreational pursuits (including sports and games) among internees, while leaving them free to take part in them or not. In taking all practicable measures to ensure such exercises, it shall, in particular, provide suitable premises for them, and sufficient open spaces shall be set aside in all places of internment for physical exercise, sports and outdoor games. Special playgrounds shall be reserved for children and young people. All possible facilities must be granted to internees to continue their studies or to take up new subjects. T h e education of children and young people must be ensured, and they shall be allowed to attend schools either within or outside the place of internment (Article 94). Labor Regulations i) T h e detaining power must not employ internees as workers, unless they so desire. Prohibited is employment which, by Articles 4097 or 51,98 protected persons not in internment may not be compelled to perform." In the main this refers to work which is directly related to the conduct of military operations or would involve them in the obligation of taking part in military operations. Also prohibited is work of a degrading or humiliating character. After a working period of six weeks internees are free to give up work at any moment, subject to eight days notice. In spite of the above provisions, the detaining power has the right to employ interned doctors, dentists, and other medical personnel in their professional capacity on behalf of their fellow internees, to employ internees for administrative and maintenance 87

See above, pp. 49-50.

98

See below, pp. 270-271.

"I.e.,

Arts. 40 and 51 provide that protected persons not in internment may not

be compelled to perform certain types of work, b u t d o not prevent them

from

volunteering for such work. However, internees are in all

from

performing such work. Final

Record,

cases prohibited

I I A , 838, R e p o r t of C o m m i t t e e III.

178

Protection

of Civilians

in War

work in places of internment, to detail them for work in the kitchens or other domestic tasks, and to require them to undertake duties connected with the protection of internees against aerial bombardment or other war risks. N o internee may, however, be required to perform tasks for which he is, in the opinion of a medical officer, physically unsuited. T h e detaining power is entirely responsible for all working conditions, medical attention, payment of wages, and for ensuring that all employed internees receive compensation for occupational accidents and diseases. T h e standards prescribed for the working conditions and compensation must be in accordance with the national laws and regulations, and with the existing practice. T h e y shall in no case be inferior to those obtaining for work of the same nature in the same district. Wages for work done will be determined on an equitable basis by special agreements concluded between the internees, the detaining power and, if the case arises, employers other than the detaining power, having due regard to the detaining power's obligation to provide for free maintenance of internees and for the medical attention required by their state of health. Internees permanently detailed for the categories of work above mentioned must be paid fair wages by the detaining power. T h e i r working conditions and scale of compensation for occupational accidents and diseases must not be inferior to those applicable to work of the same nature in the same district (Article 95). ii) A l l labor detachments must remain part of and dependent upon a place of internment. T h e detaining power's competent authorities and the commandant of the place of internment are responsible for the observance in a labor detachment of the provisions of the present convention. T h e commandant must keep an up-to-date list of the labor detachments subordinate to him and communicate it to the delegates of the protecting power, of the International Committee of the Red Cross, and of other humanitarian organizations who may visit the places of internment (Article 96). Personal Property, Financial Resources, and Identity Documents i) Internees must be permitted to retain articles of personal use. Monies, cheques, bonds, and the like, and valuables in their possession may not be taken from them except in accordance with established procedure. Detailed receipts must be given for them and the amounts paid into the account of the internee as provided under

Protection

of Civilians in War

179

Article 98 (below). Such amounts may not be converted into any other currency unless legislation in force in that territory so requires or the internee consents. Articles which have above all a personal or sentimental value may not be taken away. A woman internee may not be searched except by a woman. On release or repatriation internees must be given all articles, monies, or other valuables taken from them during internment and receive in currency the balance of any credit to their accounts (kept in accordance with Article 98), with the exception of any articles or amounts withheld by the detaining power because of its legislation in force. 100 For property so withheld the owner shall receive a detailed receipt. Family or identity documents in the possession of internees may not be taken away without receipt. A t no time may they be left without identity documents. If they have none, they shall be issued with special documents drawn up by the detaining authorities, which will serve as their identity papers until the end of their internment. Internees may keep on their persons a certain amount of money, in cash or in the shape of purchase coupons, to enable them to make purchases (Articles 97). ii) All internees must receive regular allowances, sufficient to purchase goods and articles, such as tobacco, toilet requisites, and the like. T h e allowances may take the form of credits or purchase coupons. In addition, the internees may receive allowances from their own power, the protecting powers, aid organizations, or their families, as well as the income on their property in accordance with the law of the detaining power. T h e amount of allowances granted by the internees' own power must be the same for each category of internees (e.g., infirm, sick, pregnant women), but may not be allocated by that power nor distributed by the detaining power on a discriminatory basis founded, in particular, on race, religion, or political opinion. 101 T h e detaining power must open a regular account for every internee, to which shall be credited the allowances named above, wages earned, remittances received, and such sums taken away from him as the law in force in the territory of internment makes available. Internees shall be granted all facilities consistent with that territory's law to make remittances to their families and other dependents. They may draw from their accounts the amounts necessary for their personal This takes account o£ the effects of wartime and immediate postwar legislation. p. 839. 101 See discriminations prohibited by Art. 27, above.

100

Ibid.,

180

Protection

of Civilians in War

expenses, within the limits fixed by the detaining power. They shall at all times be afforded reasonable facilities for consulting and obtaining copies of their accounts. A statement of accounts shall be furnished to the protecting power on request, and accompany the internee on transfer (Article 98). Administration and Discipline i) Every place of internment must be put under the authority of a responsible officer, chosen from the regular military forces or the regular civil administration of the detaining power. 102 T h e officer in charge of such place must have in his possession a copy of the present convention in the official language, or one of the official languages, of his country and shall be responsible for its application. T h e staff in control of internees shall be instructed in the provisions of the convention and of the administrative measures adopted to ensure its application. 103 T h e text of the convention and texts of special agreements concluded under the convention must be posted inside the place of internment, in a language which the internees understand, or shall be in possession of the Internee Committee. 104 Regulations, orders, notices, and publications of every kind shall be communicated to the internees and posted inside the places of internment, in a language which they understand (Article 99). ii) T h e disciplinary regime in places of internment must be consistent with humanitarian principles, and in no circumstances include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimization. Identification by tattooing or imprinting signs or markings on the body is prohibited. In particular, prolonged standing and roll calls, punishment drill, military drill, and maneuvers, or the reduction of food rations, are prohibited (Article 100). Notorious evils of German and other Axis concentration camps of World War II are dealt with in this Article. iii) Internees have the right to present to the authorities in whose power they are, any petition with regard to the conditions of internment to which they are subjected. They also have the right to 1 0 a For Penal and Disciplinary Sanctions, see under that heading (Arts. 117-126), below. 1 0 s T h e intention of the article is that the staff of internment establishments should be given clear instructions as to what the convention means, in terms of camp administration, rather than that they should know the law. Final Record, IIA, 839, Report of Committee III. 101 See Art. 102.

Protection

of Civilians

in War

181

apply without restriction through the Internee Committee (see the next article) or, if they consider it necessary, direct to the representative of the protecting power, in order to indicate to them any points on which they may have complaints to make with regard to the conditions of internment. Such petitions and complaints must be transmitted forthwith without alteration 1 0 5 and, even if the latter are recognized to be unfounded, may not occasion any punishment. Periodic reports on the situation in places of internment and as to needs of the internees, may be sent by the Internee Committee to the representatives of the protecting powers (Article 101). iv) In every place of internment, the internees shall freely elect by secret ballot every six months the members of a committee empowered to represent them before the detaining and the protecting powers, the International R e d Cross Committee, and any other organization which may assist them. T h e members are eligible for reelection. Elected internees enter upon their duties after their election has been approved by the detaining authorities. T h e reasons for any refusals or dismissals must be communicated to the protecting powers (Article 102). v) T h e Internee Committee is charged with furtherinng the physical, spiritual, and intellectual well-being of the internees. Should the internees decide, in particular, to organize a system of mutual assistance among themselves, this organization would be within the competence of the committees in addition to the special duties entrusted to them under other provisions of the convention (Article 103). vi) Members of Internee Committees shall not be required to perform any other work, if that renders the accomplishment of their duties more difficult. T h e y may appoint from among the internees such assistants as they may require. A l l material facilities must be granted to them, particularly a certain freedom of movement necessary for the accomplishment of their duties (visits to labor detachments, receipt of supplies, and the like). T h e y shall likewise be accorded all facilities for communication by post and telegraph with the detaining authorities, the protecting powers, the International Committee of the R e d Cross and their delegates, and with the organizations which give assistance to internees. T h o s e Internee Committee members in labor detachments shall enjoy similar facilities 100 I.e., the requests and complaints may not be altered; matters in the communications which are neither requests nor complaints are subject to the detaining power's general right of censorship. Final Record, IIA, 840, Report of Committee III. Cf. U.S. Law 308b.

182

Protection

of Civilians in War

for communication with their Internee Committee in the principal place of internment. Such communications must not be limited, nor considered as forming part of any correspondence quota allowed to internees. 106 Members of Internee Committees who are transferred shall be allowed a reasonable time to acquaint their successors with current affairs (Article 104). Relations with the Exterior i) Immediately upon interning protected persons, the detaining powers must inform them, the power to which they owe allegiance, and their protecting power 107 of the measures taken for executing the provisions under this heading. 108 Later modifications must be similarly communicated to the parties concerned (Article 105). ii) As soon as interned, or at the latest not more than one week after arrival in a place of internment, and likewise in cases of sickness or transfer to another place of internment or to a hospital, every internee must be enabled to send direct to his family and also to the Central Information Agency for protected persons109 an internment card similar, if possible, to the model annexed to the convention, 110 informing his relatives of his detention, address, and state of health. T h e cards shall be forwarded as rapidly as possible and may not be delayed in any way (Article 106). iii) Internees must be allowed to send and receive letters and cards. If the detaining power deems it necessary to limit the number of letters and cards sent by each internee, that number shall not be less than two letters and four cards monthly, which shall be drawn up so as to conform as closely as possible to the models annexed to the convention. If limitations must be placed on the correspondence addressed to internees, they may be ordered only by the internees' own power, possibly at the request of the detaining power. T h e letters and cards must be conveyed with reasonable dispatch, and may not be delayed or retained for disciplinary reasons. Internees who have been a long time without news, or who find it impossible to receive news from their relatives, or to give them news by the ordinary postal route, as well as those who are at a 10"

See Art. 107.

Notification to the protecting power is intended to a p p l y particularly to cases where the internee is of no nationality or of uncertain nationality. Final Record, I I A , 840, R e p o r t of C o m m i t t e e I I I . 107

108

Arts.

109

See A r t . 140, below. A n n e x I I I (I) to the convention. Geneva

110

105-116. Conventions

. . . , p. 228.

Protection

of Civilians in War

183

considerable distance from their homes, shall be allowed to send telegrams, the charges being paid for by them in the currency at their disposal. T h e same applies in cases recognized to be urgent. As a rule internees' mail shall be written in their own language, but the belligerents may authorize correspondence in other languages (Article 107). iv) Internees are allowed to receive, by post or any other means, individual parcels or collective shipments containing in particular foodstuffs, clothing, medical supplies, as well as books and objects of a devotional, educational, or recreational character which may meet their needs. These shipments in no way free the detaining power from its obligations under the convention. If military necessity requires the quantity of such shipments to be limited, notice must be given to the protecting power, the International Red Cross Committee, or any other organization giving assistance to the internees and responsible for forwarding the shipments. 111 T h e conditions for the sending of individual parcels and collective shipments shall, if necessary, be the subject of special agreements between powers, which may in no case delay the receipt by the internees of relief supplies. Parcels of clothing and foodstuffs may not include books. 112 Medical relief supplies shall, as a rule, be sent in collective parcels (Article 108). v) In the absence of special agreements between the belligerents regarding the conditions for the receipt and distribution of collective relief shipments, the regulations annexed to the convention shall be applied. 113 Such special agreements shall not restrict the right of Internee committees to take possession of collective relief shipments intended for internees, to undertake their distribution, and to dispose of them in the interests of the recipients. Nor shall the agreements restrict the right of representatives of the protecting powers, the International Committee of the Red Cross, or any other organization giving assistance to internees and responsible for the forwarding of collective shipments, to supervise their distribution to the recipients (Article 109). vi) Relief shipments for internees are exempt from import, customs, m It was not thought necessary to provide in the convention for the situation where some internees were getting too many relief parcels and others too few, as it was assumed that the distributing bodies would realize in any case that the arrangements which had to be made to correct such a state of affairs were in the interest of the internees in general. Final Record, IIA, 840, Report of Committee III. n a S o as not to be held up by censorship. Ibid., 841. 113 A n n e x II of the convention; see A p p e n d i x V, below.

184

Protection

of Civilians

in War

and other dues. A l l matter sent by mail, including relief parcels sent by parcel post and remittances of money, addressed from other countries to internees or dispatched by them through the post office, either direct or through the national Information bureaus 1 1 4 and the Central Information Agency for protected persons, 115 are exempt from postal dues both in the countries of origin and destination and in intermediate countries. T o this end, in particular, 1 1 6 the exemption provided by the Universal Postal Convention, 1947, and by the agreements of the Universal Postal Union in favor of civilians of enemy nationality detained in camps or civilian prisons shall be extended to the other interned persons protected by the present convention. 1 1 7 Countries not signatory to those agreements are bound to grant freedom from charges in the same circumstances. T h e cost of transporting relief shipments which are intended for internees and which, because of their weight or any other cause, cannot be sent through the post office, are borne by the detaining power in all the territories under its control. Other powers which are parties to the present convention bear the cost of transport in their territories. Costs connected with the transport of relief shipments which are not covered by the foregoing provisions are charged to the senders. T h e convention parties shall endeavor to reduce, so far as possible, the charges for telegrams sent by or addressed to internees (Article 110). vii) Should military operations prevent the powers concerned from fulfilling their obligation to ensure the conveyance of the mail and relief shipments provided for in Articles 106, 107, 108 (above) and Article 113 (below), the protecting powers concerned, the International Red Cross Committee, or any other organization duly approved by the belligerents may undertake such conveyance by suitable means. For this purpose, the convention parties must endeavor to supply them with such transport, and to allow its circulation, u 4 See

Art. 136, below. See Art. 140, below. 118 T h e words "in particular" are inserted to show that this sentence does not derogate from the right of internees to free mail within the territory where they are detained, since the international postal conventions and agreements only deal with international postal traffic. Final Record, IIB, 459. 117 Since the exemption granted by the postal convention and agreements referred to applied only to civilian enemy internees, the exemption is extended by the present article to the other interned persons protected by the present convention, i.e., nationals of a neutral state and stateless persons. Ibid., pp. 458-459. For the exemption under the Universal Postal Convention of 1952, see above, chap, v, note 109. 115

Protection

of Civilians in War

185

especially by granting the necessary safe-conducts. 118 Such transport may also be used to convey: a) correspondence, lists, and reports exchanged between the Central Information Agency for protected persons and the national Information bureaus; b) correspondence and reports relating to internees which the protecting powers, the International Red Cross Committee, or any other organization assisting the internees exchange with either their own delegates or with the belligerents.

Any belligerent may, however, arrange other means of transport, if it so prefers, and for safe-conducts for such transport, under mutually agreed conditions. T h e costs occasioned by the use of the above transport are borne, in proportion to the importance of the shipments, by the belligerents whose nationals are benefited (Article 111). viii) T h e censoring of correspondence addressed to or from internees must be done as quickly as possible. Examination of consignments for them shall not be carried out under conditions that will expose the goods to deterioration. It must be done in the presence of the addressee, or of a fellow internee delegated by him. T h e delivery to them of individual or collective consignments must not be delayed under the pretext of difficulties of censorship. Any prohibition of correspondence by the belligerents for military or political reasons shall be only temporary and its duration as short as possible (Article 112).

ix) T h e detaining powers must provide all reasonable facilities for the transmission, through the protecting power or the Central Information Agency for protected persons, or as otherwise required, 119 of wills, powers of attorney, letters of authority, or any other documents for or from internees. They must facilitate the execution and authentication in legal form of such documents on behalf of internees, in particular by allowing them to consult a lawyer (Article x) T h e detaining power must afford internees facilities to enable them to manage their property, provided this is not incompatible with the conditions of internment and the law which is applicable. For this purpose, it may give them permission to leave the place of internment in urgent cases and if circumstances allow (Article 114). xi) If an internee is a party to proceedings in court, the detaining For safe-conducts, see below, pp. 397 f. """Generally speaking, provisions in the wills of internees are intended to be carried out in the country of detention." Final Record, IIA, 841, Report of Committee III. 118

186

Protection of Civilians in War

power shall, if he so requests, cause the court to be informed of his detention and shall, within legal limits, ensure that all necessary steps are taken to prevent him from being prejudiced by his internment as regards the preparation and conduct of his case or the execution of any judgment of the court 1 2 0 (Article 115). xii) Every internee must be allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible. Also as far as possible, internees shall be permitted to visit their homes in urgent cases, particularly death or serious illness of relatives (Article 116). Penal and Disciplinary Sanctions i) Subject to the provisions discussed under the present heading, the laws in force 1 2 1 in the territory in which they are detained continue to apply to internees who commit offenses during internment. If general laws, regulations or orders declare acts committed by internees to be punishable while the same acts are not punishable when committed by persons who are not internees, such acts entail disciplinary punishments only. N o internee may be punished more than once for the same act, or on the same count (Article 1x7). ii) T h e courts or authorities shall in passing sentence take into account as far as possible the fact that the defendant is not a national of the detaining power. They shall be free to reduce the penalty prescribed for the offense with which the internee is charged and, to this end, are not obliged to apply the minimum sentence prescribed. Imprisonment in premises without daylight and, in general, all forms of cruelty are without exception forbidden. Internees who have served disciplinary or judicial sentences must not be treated differently from other internees. T h e duration of preventive detention undergone by an internee must be deducted from any disciplinary or judicial penalty involving confinement. Internee committees must be informed of all judicial proceedings instituted 130 " T h e obligations of the Detaining Power should be limited to giving the Court such additional information as the Court would require in order to come to a proper decision in relation to the affairs of an internee. This requirement is common both to occupied territory and the territory of a belligerent." Ibid., p. 842. T h e right of an interned enemy alien to institute a suit during his internment was upheld in the English courts in Schaffenius v. Goldberg (1916), 1 K.B. 284 (Ct. of Appeal, England); Evans, Leading Cases, p. 39a; cf., Ex parte Kumexo Kawato (1942), 3 1 7 U.S. 69 (U.S. Supreme Ct.); Ann. Dig. 1941-1942, Case No. 145. 121 This makes allowance for the fact that an occupying power has power to legislate in certain matters. Final Record, IIA, 842.

Protection

of Civilians

in War

187

against internees whom they represent, and of their result (Article 118). iii) T h e disciplinary punishments applicable to internees are: a) A

fine not exceeding 50 per cent of the wages 122 which

the internee

would

otherwise receive 123 during a period of not more than thirty days. b) Discontinuance of privileges granted over and above the treatment provided for by the present convention. c) F a t i g u e duties, not exceeding two hours daily, in connection with the maintenance of the place of internment. 134 d) Confinement.

In no case shall disciplinary penalties be inhuman, brutal, or dangerous for the health of internees. Account shall be taken of the internee's age, sex, and state of health. T h e duration of any single punishment shall not exceed a m a x i m u m of thirty consecutive days, even if the internee is answerable for several breaches of discipline when his case is dealt with, whether such breaches are connected or not (Article 119). iii) Internees recaptured after having escaped or w h e n attempting to escape 125 are liable only to disciplinary punishment in respect of this act, even if it is a repeated offense. Internees so punished may be subjected to special surveillance, on condition that such surveillance does not affect the state of their health, that it is exercised in a place of internment and that it does not entail the abolition of any of the safeguards granted by the present convention. T h i s rule does, however, constitute an exception to the provision requiring that internees w h o have served sentences shall not be treated differently from other internees. 126 Internees who aid and abet an escape or attempt to escape are liable to disciplinary punishment only on this count (Article 120). iv) Escape or attempt to escape, even if a repeated offense, must not be deemed an aggravating circumstance in cases where an internee 122 123

N o t the allowances mentioned in Art. 98; loc. cit. See Art. 95, above.

124 N o t the hours which an internee m i g h t work for an employer, since this would specially penalize those internees w h o chose to work (work for all internees is, in principle, voluntary), and could discourage internees f r o m taking u p employment. Final Record, I I A , 843, R e p o r t of Committee III. 125 T h i s article obviously implies that the detaining power may use force to restrain internees from escaping. T h e escaping internee may not be fired at if h e could be arrested w i t h o u t bloodshed. Trial of Albert Wagner (1946), French Gen. M i l . T r i b . , Germany, L.R.T.W.C., X I I I , 119. Certainly the civilian internee will not be in a less favorable position than prisoners of war in regard to the circumstances under which firearms may be used against h i m to prevent his escape; see above, p. 135. 125

See Art. 118, above.

i88

Protection

of Civilians

in War

is prosecuted for offenses committed during his escape. T h e belligerents must ensure that the competent authorities exercise leniency in deciding whether punishment inflicted for an offense shall be disciplinary or judicial, especially for acts committed in connection with an escape, whether successful or not (Article 121). A n aggravating circumstance is one which increases the punishment for an offense. Disciplinary offenses are minor offenses dealt with summarily; judicial offenses are tried by a court. v) Acts which constitute offenses against discipline shall be investigated immediately. T h i s rule shall be applied, in particular, in cases of escape or attempt to escape. Recaptured internees shall be handed over to the competent authorities as soon as possible. In offenses against discipline, confinement awaiting trial shall be reduced to an absolute minimum for all internees, and shall not exceed fourteen days. Its duration shall be deducted from any sentence of confinement. T h e provisions of Articles 124 (premises for disciplinary punishments) and 125 (essential safeguards during detention) shall apply to internees who are in confinement awaiting trial for offenses against discipline (Article 122). vi) Without prejudice to the competence of courts and higher authorities, disciplinary punishment may be ordered only by the commandant of the place of internment, or by a responsible officer or official who replaces him, or to whom he has delegated his disciplinary powers. Before any disciplinary punishment is awarded, the accused must be given precise information regarding the offenses charged, and given an opportunity to explain his conduct and defend himself. He is permitted, in particular, to call witnesses and to have recourse, if necessary, to the services of a qualified interpreter. T h e decision must be announced in the presence of the accused and of a member of the Internee Committee. T h e period between award of a disciplinary punishment and its execution must not exceed one month. W h e n an internee is awarded a further disciplinary punishment, a period of at least three days must elapse between the execution of any two of the punishments, if the duration of one is ten days or more. A record of disciplinary punishments must be maintained by the commandant of the place of internment and be open to inspection by representatives of the protecting power (Article 123). vii) Internees are not to be transferred to penitentiary establishments (such as prisons, penitentiaries, convict prisons) to undergo disciplinary punishment. T h e premises in which disciplinary punishments are undergone must conform to sanitary requirements; in

Protection

of Civilians

in War

i8g

particular, be provided with adequate bedding. Those undergoing punishment must be enabled to keep themselves clean. W o m e n must be confined in separate quarters from men and be under the immediate supervision of women (Article 124). viii) Internees awarded disciplinary punishment shall be allowed to exercise and stay in the open air at least two hours daily. T h e y shall be allowed, if they request, to be present at the daily medical inspections. T h e y shall receive the attention their state of health requires and, if necessary, be removed to the infirmary of the place of internment or to a hospital. They will be permitted to read and write and send and receive letters; but parcels and remittances of money may be withheld until the completion of their punishment. In the meantime such consignments shall be entrusted to the Internee Committee, who will hand over perishable goods to the infirmary. N o internee given a disciplinary punishment may be deprived of his rights to send and receive correspondence 127 or of the benefit of visits from representatives or delegates of the protecting powers, the International Red Cross, and, in some instances, of his compatriots 128 (Article 125). ix) T h e provisions of Articles 71 to 76, which relate to the trial and detention of protected persons in occupied territory, 129 apply, by analogy, to proceedings against internees who are in the national territory of the detaining power (Article 126). 130 Transfer of Internees i) Transfer shall always be effected humanely. As a general rule, it shall be carried out by rail or other means of transport, and under conditions at least equal to those obtaining for the forces of the detaining power in their changes of station. If, as an exceptional measure, such removals have to be effected on foot, they may not take place unless the internees are in a fit state of health, and may not expose them to excessive fatigue. T h e detaining power must supply them during transfer with drinking water and food sufficient in quantity, quality, and variety to maintain them in good health; and also with the necessary clothing, adequate shelter and the necessary medical attention. It must take all suitable precautions to ensure their safety during transfer, and See Art. 107, above. See Art. 143, below. 128 Below, pp. 250-253. 130 See also above, p. 51. 127

128

igo

Protection

of Civilians

in War

shall establish before their departure a complete list of all internees transferred. Sick, wounded or infirm, and maternity cases must not be transferred if the journey would be seriously detrimental to them, unless imperatively demanded by their safety. If the combat zone draws close to a place of internment, the internees must not be transferred unless their removal can be carried out in adequate conditions of safety, or unless they are exposed to greater risks by remaining on the spot than by being transferred. W h e n deciding on the transfer of internees, the detaining power shall take their interests into account and, in particular, shall not do anything to increase the difficulties of repatriating them or returning them to their own homes (Article 127). ii) In the event of transfer, internees shall be officially advised of their departure and new postal address, in time for them to pack their luggage and inform 1 3 1 their next of kin. T h e y are allowed to take with them their personal effects, and correspondence and parcels which have arrived for them. T h e weight of such baggage may be limited if the conditions of transfer so require, but not to less than twenty-five kilograms per internee. Mail and parcels addressed to their former place of internment shall be forwarded to them without delay. It is the duty of the commandant of the place of internment to take, in agreement with the Internee Committee, any measures needed to ensure the transport of the internees' community property and the luggage the internees are unable to take with them (Article 128). Deaths i) T h e responsible authorities must receive for safe-keeping the wills of internees. In the event of death a will must be transmitted without delay to the person previously designated by the deceased internee. Death of internees must be certified by a doctor, and a death certificate made out showing the causes of death and the conditions under which it occurred. A n official record of the death, duly registered, shall be drawn up in accordance with the procedure in force in the territory where the place of internment is situated, and a certified copy of such record transmitted without delay to the protecting power and the Central Information Agency for protected persons 132 (Article 129). m/.e.,

"despatch a notification to." Final

III. w

See Art. 140, below.

Record,

I I A , 844, R e p o r t of C o m m i t t e e

Protection

of Civilians

in War

191

ii) T h e detaining authorities have to ensure that those w h o die while interned are honorably buried, i£ possible according to the rites of their religion, and that their graves are respected, maintained, and marked so that they can always be recognized. Burial shall be in individual graves unless unavoidable circumstances require the use of collective graves. Bodies may be cremated only for imperative reasons of hygiene, or on account of the deceased's religion, or in accordance with his expressed wish. If the body is cremated, the fact and reasons must be given in the death certificate. T h e ashes will be retained for safe-keeping by the detaining authorities and transferred as soon as possible to the next of kin on their request. As soon as circumstances permit, and not later than the close of hostilities, the detaining power shall forward lists of graves to the powers of the deceased internees, through the national Information bureaus. 1 3 3 Such lists shall include all particulars necessary for the identification of the deceased and the exact location of their graves (Article 130). iii) Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee, or any other person, as well as any death of unknown cause shall be immediately followed by an official inquiry 1 3 4 by the detaining power, and the evidence of any witnesses taken. T h e protecting power must be immediately informed, and a report including the evidence taken from witnesses shall be prepared and forwarded to that power. If the inquiry indicates guilt, the detaining power must take all necessary steps to ensure the prosecution of those responsible (Article 131). Release, Repatriation, and Accommodation in Neutral Countries i) Each interned person must be released by the detaining power as soon as the reasons which necessitated his internment no longer exist. T h e belligerents shall, moreover, during the hostilities endeavor to conclude agreements for the release, repatriation, return to places of residence, or accommodation in a neutral country of certain classes of internees, in particular children, pregnant women, and mothers with infants and young children, wounded and sick, and internees w h o have been detained for a long time (Article 132). See A r t . 136, below. 134 "X{ l e phrase 'official enquiry' would include a criminal prosecution, i.e., that where criminal prosecution is undertaken on the facts revealed on preliminary investigation, there need not be any other 'official enquiry.' " Final Record, IIA, 133

844.

1Q2

Protection

of Civilians

in

War

ii) Internment must cease as soon as possible after the close of hostilities. 135 Internees in the territory of a belligerent against whom penal proceedings are pending for offenses not exclusively subject to disciplinary penalties may be detained until the close of such proceedings and, if circumstances require, until the completion of the penalty. T h e same applies to internees previously sentenced to a punishment depriving them of liberty. By agreement between the detaining power and the powers concerned, committees may be set up after the close of the occupation of territories to search for dispersed internees (Article 133). iii) T h e convention parties shall endeavor, on the close of hostilities or occupation, to ensure the return of all internees to their last place of residence, or to facilitate their repatriation (Article 134). iv) T h e detaining power bears the expense of returning released internees to the places where they were residing when interned, or, if it took them into custody while they were in transit or on the high seas, the cost of completing their journey or return to their point of departure. Where a detaining power refuses permission to reside in its territory to a released internee who previously had his permanent domicile there, it shall pay the cost of his repatriation. If, however, the internee elects to return to his country on his own responsibility or in obedience to his government, the detaining power need not pay the expenses of his journey beyond the point of his departure from its territory. It does not pay the costs of repatriation of an internee who was interned at his own request. If internees are transferred to another Power, 136 the transferring and receiving Powers shall settle their shares of the foregoing costs by agreement. These regulations shall not prejudice special agreements which may be concluded between belligerents concerning the exchange and repatriation of their nationals in enemy hands (Article 135). NATIONAL INFORMATION BUREAUS AND THE CENTRAL INFORMATION AGENCY

i) On the outbreak of a conflict and in all cases of occupation, each belligerent must establish an official information bureau responsible for receiving and transmitting information about the protected persons in its power. Each belligerent shall, within the shortest possible period, give its bureau information of any measure taken by it con135 T h i s does not imply that no person could be interned after the close of hostilities. Loc. cit. 138 Art. 45, above, pp. 51-52.

Protection

of Civilians in War

193

cerning any protected persons who are kept in custody 137 for more than two weeks, who are subjected to assigned residence, or who are interned. Its relevant departments shall promptly provide the bureau with information of all changes pertaining to these protected persons, as for example transfers, releases, repatriations, escapes, admittances to hospitals, births, and deaths (Article 136). ii) Each national bureau shall immediately forward information concerning protected persons by the most rapid means to the powers of whom those persons are nationals, or to powers in whose territory they resided, through the intermediary of the protecting powers and the Central Information Agency mentioned below. 138 T h e national bureaus shall also reply to all inquiries received regarding protected persons. They shall not transmit information which might be detrimental to a protected person or his relatives, 139 although such information may not be withheld from the Central Information Agency. T h e last-named, upon being notified of the circumstances, 140 must take the precautions indicated in Article 140. Communications in writing by any bureau must be authenticated by a signature or a seal (Article 137). iii) T h e information received and transmitted by the bureau shall be such as to make it possible to identify the protected person exactly and to advise his next of kin quickly. T h e information concerning each person shall include, at least his full name, place and date of birth, nationality, last residence, distinguishing characteristics, first name of father, maiden name of mother, the date, place, and nature of the action taken with regard to him, address at which correspondence may be sent to him, and name and address of the person to be informed. Likewise, information regarding the state of health of internees who are seriously ill or seriously wounded shall be supplied regularly and if possible every week (Article 138). iv) Each national Information Bureau is responsible for collecting 117

T h i s includes "detention in connection with criminal or quasi-criminal charges

as well as detentions for political reasons—whether

effected by State or

authorities or, for example, by 'political' police." Final

Record,

Federal

I I A , 845, R e p o r t

of Committee III. 138

See Art.

140.

" " T h i s includes the cases provided for in Arts. 35 and 43 where the protected person may object to the information about him there specified being forwarded to the protecting power. Final 140

Record,

I I A , 845.

It is "the d u t y of the National Bureaux to n o t i f y the Central A g e n c y of any

reasons, including the expressed wishes of the person concerned which m i g h t h e l p the Central Agency to decide whether or not further transmission w o u l d be detrimental to the protected person's relatives" (or to the person w h o m the information concerns). Loc.

cit.

194

Protection

of Civilians in War

all personal valuables left by protected persons within its jurisdiction, 141 in particular those who have been repatriated, released, escaped, or died. It shall forward the valuables to those concerned, either directly, or, if necessary, through the Central Agency. T h e articles will be sent in sealed packets accompanied by statements giving identity particulars of the person to whom they belonged, and by a complete list of the contents of the parcel. Detailed records shall be maintained of the receipt and dispatch of such valuables (Article 139)v) A Central Information Agency for protected persons, in particular for internees, will be created in a neutral country, if necessary on the proposition of the International Committee of the Red Cross to the powers concerned. This agency may be the same as the Central Prisoners of War Agency. 142 T h e function of the agency is to collect all information of the type set forth in Article 136 (above) which it may obtain through official or private channels and to transmit it as rapidly as possible to the countries of origin or residence of the persons concerned, except where such transmissions might be detrimental to the persons to whom the information relates, or to their relatives. 143 T h e agency must receive from the belligerents all reasonable facilities for effecting such transmissions. Parties to the convention, especially those whose nationals benefit by the services of the agency, should afford it needed financial aid. These provisions concerning the Central Agency in no way restrict the humanitarian activities of the International Committee of the Red Cross and of the relief societies described in Article 142 (below) (Article 140). v) T h e national Information bureaus and the Central Information Agency enjoy free postage for all mail, the exemptions provided for in Article no, 1 4 4 and so far as possible exemption from telegraphic charges or, at least, greatly reduced rates 145 (Article 141). EXECUTION OF THE

CONVENTION

i) Subject to essential security or other reasonable measures, the representatives of religious organizations, relief societies, or any other See Art. 136, above, for such protected persons. See Art. 123, Geneva Conv. I l l , 1949, above, p. 151. 143 Cf., Art. 137 and explanatory footnote, above. 144 Above. 146 " T o reduce the chances of any breakdown in notification arrangements— through inability on the part of the Central Agency, for example, to meet full charges—[there is] a moral obligation to attempt to make special arrangements." Final Record, IIA, 845, Report of Committee III. 1,1

143

Protection

of Civilians

in War

195

organizations assisting the protected persons must receive from the detaining powers, for themselves or their accredited agents, all facilities for visiting the protected persons, for distributing relief supplies and material from any source intended for educational, recreational, or religious purposes, or for assisting them in organizing their leisure time within the places of internment. Such societies or organizations may be national or international, but the detaining power may limit the number allowed to operate in its territory, provided adequate relief to all protected persons is not hindered. T h e special position of the International Committee of the R e d Cross in this field is to be recognized and respected (Article 142). ii) Representatives or delegates of the protecting powers must be permitted to go to all places where protected persons are, particularly places of internment, detention, and work, have access to all premises occupied by them, and be able to interview them without witnesses, either personally or through an interpreter. T h e y shall have full liberty to select the places they wish to visit; the duration and frequency of visits may not be restricted, and visits may be prohibited only as an exceptional and temporary measure for reasons of imperative military necessity. Compatriots of the internees may be permitted to take part in the visits, by special agreement amongst the powers concerned. T h e delegates of the International R e d Cross Committee have the same prerogatives, subject to approval of their appointment by the power governing the territories where they will carry out their duties (Article 143). iii) T h e parties to the convention undertake to disseminate in peace and war the text of the convention as widely as possible in their countries and, in particular, to include its study in military and civil instruction so that its principles are known to the entire population. A n y civilian, military, police, or other authorities w h o in war time assume responsibilities regarding protected persons must have the text of the convention and be instructed in its provisions (Article 144). iv) Parties must also communicate to one another through the Swiss Federal Council and, during hostilities through the protecting powers, the official translations of the convention, and the laws and regulations they adopt to ensure its application (Article 145). v) Parties undertake to enact any legislation necessary to provide effective penal sanctions 146 for persons committing, or ordering to be committed, any grave breaches of the convention. Such grave breaches are defined as those involving any of the following acts, if committed against persons or property protected by the convention: w i l l f u l kill116

See note to Art. 49, Geneva C o n v . I, 1949, above, p. 92, n. 89.

196

Protection of Civilians in War

ing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body and health, unlawful deportation, 147 transfer or unlawful confinement, compulsory service in the forces of a hostile power, willful deprivation of the rights of fair and regular trial prescribed by the convention, taking of hostages and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. 148 Each contracting party 149 must search for persons alleged to have committed or ordered such grave breaches and to bring them, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand them over 150 for trial to another party concerned, providing such party has made out a prima facie151 case. Further, apart from the grave breaches, each party must take the necessary measures for the suppression 152 of all other acts contrary to the convention provisions. In all circumstances, the accused must benefit by safeguards of proper trial and defense, which shall not be less favorable than those provided by Article 105 and those following of Geneva Convention III, 1949 153 (Articles 146 and 147). vi) No party to the convention will be allowed to absolve itself or any other party of any liability which either of them may have incurred concerning grave breaches of the convention 154 (Article 148). vii) If a belligerent requests, an inquiry must be instituted concerning any alleged violation of the convention, in a manner to be decided between the interested parties. Failing agreement on such procedure, the parties should choose an umpire to decide. Once a violation is established, the belligerents must put an end to it and repress it with the least possible delay (Article 149). T H E P R E V E N T I O N AND P U N I S H M E N T OF T H E C R I M E OF GENOCIDE The inhuman racial doctrines of the German government in World War I I demanded the destruction of entire human groups, some 147

"Deportation could be legal if based on aliens legislation." Final Record, 118, Report of Special Committee of Jt. Committee. 148 See note to Art. 50, Geneva Conv. I, 1949, above, chap, iv, note 90. " ' S e e note to Art. 49, Geneva Conv. I, 1949, above, chap, iv, note 91. 100 Ibidabove, chap, iv, note 92. lsl Ibid., above, chap, iv, note 93. Ibid., above, chap, iv, note 94. 153 Above, pp. 140 f. 164 See note to Art. 5 1 , Geneva Conv. I, 1949, above, chap, iv, note 97.

IIB,

Protection

of Civilians

in

War

197

national, others ethnical, racial, or religious. Such policies resulted in the extermination of many millions of innocent civilians. Mass annihilation was not unknown in the earlier and more barbarous stages of the history of mankind, but, by the present century, so unthinkable had such crimes become that no word existed to describe such enormities. It was necessary during W o r l d W a r I I to coin the word "genocide" to fill this unimagined gap in human expression. 155 T h e charter of the International Military T r i b u n a l which was signed in London on August 8, 1945, authorized that tribunal, by Article 6, to try and punish persons who, either individually or as members of organizations, committed crimes of this nature. Such crimes offend both the laws of war and of humanity. On these counts, 1 5 6 among others, the major German war criminals were convicted by the International Military Tribunal at Nuremberg, and succeeding Nuremberg military tribunals dealt similarly with perpetrators of lesser rank. 1 5 7 T h e problem of preventing and punishing genocide became a special concern of the newly founded United Nations. On December 1 1 , 1946, the General Assembly adopted unanimously a special resolution, 96 (I), on this subject. 1 5 8 T h e preamble describes the nature and effects of genocide in these terms: Genocide is a denial of the right of existence of entire human groups, as homocide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, political and other groups have been destroyed entirely or in part. The punishment of the crime of genocide is a matter of international concern. 1ES The word was coined by Dr. Raphael Lemkin, a Polish scholar and attorney now in the United States; see Lemkin, Axis Rule in Occupied Europe, chap, ix, "Genocide," pp. 79-95. The term is compounded from the ancient Greek word genos (race, tribe) and the Latin derivation cide (killing). Ibid., p. 79. ^ Count Three (A) of the Nuremberg indictment charged against the accused: "They conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups, particularly Jews, Poles and Gypsies and others." Trial of War Criminals, Documents (U.S. Dept. of State Pub. 2420, 1945), p. 39. 157 See, for example, The Einsatzgruppen Case (United States v. Ohlendorf, et al.) (1947), U.S. Mil. Trib., Nuremberg, TWC, IV; The RuSHA Case, above; TWC, IV, V; The Justice Case (United States v. Altstoetter, et al.) (1947), U.S. Mil. Trib., Nuremberg, TWC, III; The Pohl Case (United States v. Pohl, et al.) (1947), U.S. Mil. Trib., Nuremberg, TWC, V. See also Trial of Goeth (1946), Supreme Nat. Trib. of Poland, Cracow, L.R.T.W.C., VII, 1. 168 General Assembly Resolutions, Oct. 23-Dec. 15, 1946, U.N. Doc. A/64/Add.i ('947). PP- 188-189.

Protection

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War

T h e General Assembly then went on to affirm, "that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices—whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds —are punishable." T h e resolution invited the member states to enact the necessary legislation for the prevention and punishment of genocide and then went on to provide for the preparation, under the aegis of the United Nations, of a convention on the crime. T h e Genocide Convention was duly formulated and adopted unanimously by the General Assembly on December 9, 1948. Of the nineteen articles which the convention contains, the first nine are of a substantive character, and the remaining ten relate to procedure. T h e convention came into force, according to its terms, 159 on January 12, 1951. By that time, twenty-eight states had deposited their ratifications or accessions to the convention. This number includes members of the United Nations and nonmembers, and one of the great powers, France, is among them. 180 Some states have attached reservations 161 to their signatures, ratifications, or accessions, while in various other states which have signed the convention but not yet deposited their ratifications, including the United States of America, internal difficulties both legal and political have delayed ratification. 162 169

See Art. X I I I . By May, 1958, 55 states, including the U.S.S.R. and the Federal Republic of Germany (with application to land Berlin), plus the Belgian Congo and the trust territories of Ruanda-Urundi (through the instrumentality of Belgium) had deposited their ratifications or accessions with the Secretariat of the U.N. See Statements of Treaties and International Agreements, Jan., 1951-May, 1958, U.N. Docs. S T / L E G / S E R . A / 4 7 - 1 3 5 , New York. 161 T h e U.N. General Assembly by resolution of November 16, 1950, requested the International Court of Justice at the Hague to give an advisory opinion on the legal effects of such reservations to the Genocide Convention and also invited the U.N. International Law Commission to study the question of reservations especially as regards multilateral conventions. T h e International Court of Justice handed down its advisory opinion on May 28, 1951, to the general effect that the reserving state may still be regarded as a party to the convention if the reservation is compatible with the object and purpose of the convention. Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15. 102 See, for example, the resolution of the American Bar Association, Sept. 7, 1949, which while opposing ratification of the Genocide Convention by the United States, on the ground that it raises important constitutional problems and does not resolve them in a manner consistent with the United States form of government, condemns genocide. Cited in Finch, " T h e Genocide Convention," 43 A.J.I.L. 733. Finch objects that the convention approaches genocide as an individual crime and not as persecutions instigated by governments, stating: " T h e Genocide Convention should deal only with mass killings and destruction of peoples which can only happen with official approval or complicity." Ibid., pp. 733-734. 160

Protection

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199

However, the standards of national and individual behavior in war set by the convention are already part of international law, independently of the agreement of individual states,163 and, as previously demonstrated, the whole history of the past decade had already condemned the crimes defined by the convention as among the most serious known to international law, even before the convention came into being. T h e convention applies both in time of peace and of war, 164 although we are here concerned only with its relation to the laws of war.

T H E PROVISIONS OF T H E C O N V E N T I O N O N GENOCIDE, 1948 i) T h e preamble states the considerations influencing the parties in agreeing to the convention. These are the declaration made by the General Assembly in its resolution 96 (I), that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world; the recognition that at all periods of history genocide has inflicted great losses on humanity; and the conviction that, in order to liberate mankind from such an odious scourge, international cooperation is required. It has been correctly stated that "the heart of the convention is its recognition of the principle that the prevention and punishment of genocide requires international cooperation. However, the convention does not substitute international responsibility for state responsibility. It leaves to states themselves the basic obligation to protect entire human groups in their right to live. On the other hand it is lesThe

International C o u r t of Justice at the H a g u e referring to Resolution 96

(I) of Dec.

11,

1946, on genocide, by

the U . N .

General Assembly,

stated:

"The

first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized b y civilized nations as b i n d i n g on States, even without any conventional obligation." Reservations on

Genocide,

L.R.T.W.C.,

Advisory

Opinion,

above,

p.

23.

In

The

to the

Justice

Convention Case,

above,

VI, 48, the court described "genocide [as] the prime illustration of a

crime against h u m a n i t y under Control Council L a w N o . 10, w h i c h b y reason of its m a g n i t u d e and its international repercussions has been recognized as a violation of common international law." A f t e r citing the General Assembly resolution above, the court stated: " W e approve and adopt its [the General Assembly's] conclusions. Whether

the

crime

against

humanity

is the

product

of

statute

or of

common

international law, or, as we believe, of both, we find no injustice to persons tried for such

crimes. T h e y

are chargeable

with

the

wrong and were punishable w h e n committed." 1M

Art. I.

knowledge

that

such

acts

were

200

Protection

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designed to insure international liability where state responsibility has not been properly discharged." 1 6 5 ii) The parties confirm that genocide, whether committed in peace or war, is a crime under international law which they undertake to prevent and to punish (Article I). iii) In the convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group;1™ e) Forcibly transferring children of the group to another group (Article II).1*7

In succinct expression, the basic purpose of the convention is the prevention of the destruction of a human group as such. 188 T h e distinction between homicide and genocide is that in the former the individual is the victim, in the latter, the group. Whether a homicide punishable under municipal law is also genocide punishable under international law depends on the intent of the perpetrator. Where the malice is confined to the individual whose life is taken, the crime is homicide simpliciter, but if the intent is to destroy the individual as part of one of the human groups specified above, then the crime is not only homicide but also genocide. 169 le6 Report of the U.S. Acting Secretary of State to the President (Senate Executive O, 8ist Cong., ist sess., June 16, 1949), Human Rights and Genocide (U.S. Dept. of State Pub. 3643, 1949), at p. 65. Certain of the medical experiments carried out by the Germans in Auschwitz camp during World War II were preparatory to carrying out the crime of genocide; they were aimed at finding the most appropriate means to lower or destroy the reproductive power of certain groups (Jews, Poles, Czechs, and other nonGerman groups). Trial of Hoess, above, L.R.T.W.C., VII, at pp. 25-26; see also Trial of Greiser, above, L.R.T.W.C., XIII, at pp. 99, 101 (Measures taken by Germans to reduce births within the Polish population). 187 Cf. Art. 2 (10) of the Draft Code of Offenses Against the Peace and Security of Mankind, drafted by the U.N. International Law Commission, which repeats the acts specified in the present article. U.N. Gen. Ass. Off. Recs., 9th Sess., Suppl., no. 9, A/2693 (1954), p. 11. It was said of The RuSHA Case, above: "As can be seen the offences enumerated in Article 2 of this Convention [the Genocide Convention] cover practically the entire field tried in this case. T h e most conspicuous instances are abortions, punishments for sexual intercourse, preventing marriages and hampering reproduction, and the measures taken for forced Germanization, including the kidnapping or taking away of children and infants, the deportation and resettlement of populations, and the persecutions of Jews." L.R.T.W.C., XIII, 39-40. 168 Report of the U.S. Acting Secretary of State to the President, Human Rights and Genocide, above, at p. 64. 169 Cf. Lemkin, op. cit., p. 79: "Genocide is directed against the national group

Protection

of Civilians

in

War

201

In listing the various kinds of groups against which genocide may be committed, the article makes no mention of political groups. As such, therefore, the latter cannot claim protection under the convention, but the distinction between political groups and those enumerated in the convention may be so narrow as to involve a close scrutiny of the real intent of those proceeding against a political group.170 With regard to paragraph (c) of the present article, the following observation is in point: According to Lemkin 171 genocide does not necessarily mean the immediate destruction of a nation or of a national group, except when accomplished by mass killings o£ all its members. It is intended to signify also a coordinated plan of different actions aiming at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves. T h e objectives of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion and the economic existence of national groups, the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide has two phases: one, the destruction of the national pattern of the oppressed group, for which the word "denationalization" was used in the past;" 2 the other, the imposition of the national pattern of the oppressor.1™

iv) The following acts shall be punishable according to Article III: a) b) c) d) e)

Genocide; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide.

v) Persons committing any of these acts shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals (Article IV). Any guilty person may, therefore, be punished for this crime, and official position—even that of head of a state—affords no immunity. as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group." 170 Persecution on political grounds in execution of or in connection with crimes against peace and war crimes is a crime against humanity; Art. 6 (c), Charter of Int. Mil. Trib. of Nuremberg. 171 See Lemkin, op. cit., pp. 79-95. 173 Lemkin states that he "believes, however, that this word [denationalization] is inadequate because: (1) it does not connote the destruction of the biological structure; (2) in connoting the destruction of one national pattern, it does not connote the imposition of the national pattern of the oppressor; and (3) denationalization is used by authors to mean only deprivation of citizenship." Lemkin, op. cit., pp. 79-80. ™ Notes on Trial of Goeth, above, L.R.T.W.C., VII, 7-8.

202

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Genocide may be committed by an individual or by a group, and the group may be composed of private citizens, government officials or both. All are equally punishable. vi) T h e parties undertake to enact, in accordance with their constitutions, legislation to give effect to the provisions of the present Convention and, in particular, to provide penalties for guilty persons (Article V). T h e responsibility for dealing with offenses against the convention lies in the first instance on the state concerned. Constitutional difficulties in bringing into effect such legislation have arisen in some states, and has delayed ratification by those states. A n example is where the constitution of a state guarantees immunity from judicial process to the head of the state. In such case, implementation of the convention will require amendment of the constitution. However, to take the instance of a head of state, the Nuremberg Judgment has already demonstrated that immunity from judicial process granted by a state constitution will not protect that head of state nor the state officials from international justice. T h e charter of the Nuremberg Tribunal, by Article 7, expressly provided that the official position of the defendants, whether as heads of state or responsible officials in government departments, was not to be considered as freeing them from responsibility or mitigating punishment. vii) Persons charged with any of the specified acts shall be tried by a tribunal of the state in the territory of which the act was committed, or by "such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction" (Article VI). T h e chief weakness of the Genocide Convention is revealed by this article. T h e problem is, how effectively to punish genocide. It is obvious that genocide on any large scale can only be committed by, or with the connivance of, a state or states, and the agency of the state officials. In such cases, to expect the state to punish the crime is to require the murderer to sit upon his own homicide. In other words, there must be some effective international means of enforcing the convention. T h e present article refers vaguely to an international penal tribunal, but, in fact, there is no international criminal court in existence. It is, of course, possible to create ad hoc tribunals such as the Nuremberg Tribunal to deal with particular crimes, but this means is far from satisfactory, to be used where none other is available. T h e most obvious objection which may be raised against such courts is

Protection

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203

that, usually created after a bitter conflict, their purpose is to deal out victor's justice, that is, revenge. T o implement the convention most effectively, it is, therefore, necessary to create a permanent international criminal court. This was realized by the United Nations General Assembly at the time it adopted the convention, because at the same time it adopted the following resolution: 174 The

General

Assembly, Considering

that

the discussion

of

the convention

on

the prevention and punishment of the crime of genocide has raised the question of the desirability and possibility of having persons charged with genocide tried by a competent international tribunal, Considering that, in the course of

development

of the international community, there will be increasing need of an international judicial organ for the trial of certain crimes under international law, Invites

the

International L a w Commission to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions; Requests the International L a w Commission in carrying out this task to pay attention to the possibility of establishing a criminal chamber of the International Court of Justice.

Such a criminal court is, however, still far from realization. In bringing it into being it will also be necessary to provide for the effective execution of its judgments. viii) T h e specified acts shall not be considered political crimes for the purpose of extradition. T h e parties pledge to grant extradition in accordance with their laws and treaties (Article VII). Guilty parties will, therefore, be unable to avoid extradition on the plea that their crimes were political. ix) Any contracting party may call on the United Nations to take such action under the Charter as they consider appropriate for the prevention and suppression of the specified acts (Article VIII). T h e Preamble of the Charter states a determination "to reaffirm faith in fundamental human rights, and in the dignity and worth of the human person." Further, among the purposes of the United Nations is "to achieve international cooperation in . . . promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." 1 7 5 There can be no doubt that genocide can constitute a threat to international peace and security, especially when it is committed with the connivance, active or passive, of state authority. As such a threat, the crime would become the subject for action by the Security Coun174

A n n e x B to resolution of Dec. g, 1948; see Human

™ U . N . Charter, A r t . 1

(3).

Rights

and Genocide,

p. 63.

204

Protection

of Civilians

in War

cil and General Assembly. United Nations action would not be barred by Article 2 (7) of the Charter, because crimes affecting the peace and security of the world cannot be classed as "matters which are essentially within the domestic jurisdiction of any state." Genocide on any scale also concerns the Economic and Social Council of the United Nations, which has the function and power to make "recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all." 1 7 6 It may report such matters to the General Assembly and the Security Council. T h e threat of intervention by the United Nations would constitute a salutary deterrent against feared genocide in an armed conflict to which the United Nations was not already a party. x) Disputes between the parties relating to the interpretation, application, or fulfillment of the present convention, including those relating to the responsibility of a state for genocide or other of the specified acts, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute (Article IX). Reservations to this article have been made by the U.S.S.R., the Ukrainian S.S. Republic, the Byelorussian S.S. Republic, Czechoslovakia, Bulgaria, and the Philippines to the effect that the agreement of the parties is essential for the submission of each dispute to the International Court. 1 7 7 Also the United States has stated that it does not construe this article as meaning that a state can be held liable in damages for injury inflicted by it on its own nationals, but that if such a meaning is intended by the article the United States makes a reservation to such an interpretation. 178 xi) Any party may at any time, by notifying the secretary-general of the United Nations, extend the application of the present convention to all territories for whose foreign relations that party is responsible (Article XII). T h e states mentioned in the preceding section, other than the United States and the Philippines, have also made reservations regarding this article, with which they have announced their disagreement. T h e y state that all provisions of the convention should extend to nonselfgoverning territories, including trust territories. A t the time of the adoption of the convention, the General Assembly of the United Nations resolved as follows: Ibid., Art. 62 (2). See 44 A.J.I.L. 127-128; 45 A.J.I.L., Suppl., pp. 11-12. ""Statement of the U.S. representative on December 2, 1948, before the Legal Committee of the U.N. Gen. Assembly, when voting in favor of the Genocide Convention. Human Rights and Genocide, p. 70. 178 177

Protection

of Civilians

in War

205

" T h e General Assembly recommends that parties to the Convention on the prevention and punishment of the crime of genocide which administer dependent territories, should take such measures as are necessary and feasible to enable the provisions of the Convention to be extended to those territories as soon as possible." 1 7 9 Members of the United Nations administering nonselfgoverning territories undertake to ensure for the peoples of those territories "just treatment, and their protection against abuses," 1 8 0 and their policy in respect of such territories "must be based on the general principle of good-neighborliness." 1 8 1 As for territories held by members under United Nations trust, one of the basic objectives of the trusteeship system under the Charter is "to encourage respect for human rights and for fundamental freedoms for all without any distinction as to race, sex, language or religion." 1 8 2 17B 180 181 183

Annex C to resolution of Dec. 9, 1948; see ibid., p. 63. U.N. Charter, Art. 73 (a). Ibid., Art. 74. Ibid., Art. 76 (c).

VII OCCUPATION

OF

TERRITORY,

MILITARY

GOVERNMENT,

AND CIVIL

AFFAIRS

A SURVEY D u r i n g W o r l d W a r II, vast territories were occupied by the armies on both sides. T h e problems of military occupation, which had previously received scant attention from those engaged in warfare, now assumed an aspect of prime importance. 1 In these days when war is as much a struggle for men's minds as physical combat, it has become apparent that the conduct of a military occupation may well be a determining factor in securing victory for a belligerent. It has been stated that the enormities committed by the A x i s Powers during W o r l d W a r II in the territories under the control of their armed forces contributed much to their ultimate defeat. 2 N o t only during that war, but also for many years afterward immense populations and tracts of land continued under military rule. Naturally, those powers whose actions were guided by compliance with the rules of international law looked to that source to ascertain the principles which applied in dealing with their responsibilities. T h e y found the rules in point were few, and those chiefly contained in section iii of the Hague Regulations, 1907, a matter of fifteen short articles (Articles 42 to 56). If the rules were scanty, the organization for administering them 1 For deficiencies in the study of belligerent occupation and the lack of interest in this field between the two world wars, see Feilchenfeld, The International Economic Law of Belligerent Occupation, pp. 3-4. 3 See, for example, Slover, "Military Government—Where Do W e Stand T o d a y ? " in Connor and Friedrich, eds., Military Government, p. 193.

Occupation

210

of

Territory

was often nonexistent. 3 In the British and American armies the necessity for such a branch in their armed forces came somewhat as a surprise and an afterthought. Personnel was hastily improvised and thrown into the task, in many cases with no or little training for it, and hazy ideas of how to perform it. It was not surprising in those circumstances, with onerous, complicated, and multifarious duties suddenly thrust on them that the personnel protested somewhat bitterly the lack of guidance afforded by the few existing rules of international law on these matters, and the parallel paucity of useful material to be found in the text books on international law. 4 A frantic search for precedents ensued, and the little that was available of fairly recent date chiefly related to the occupation of the Rhineland after World W a r I and (for colonial territories) that of Palestine during and after the same conflict. However, it is apparent that most difficulties under which this staff labored concerned the practical application of the principles outlined in the Hague Regulations. T h e principles themselves were perfectly clear, and once the lack of foresight and planning in applying them practically had been remedied by adequate directives, manuals of instruction, and training of personnel, the Hague rules worked quite successfully on the whole where any serious attempt was made to put them into effect. T h e Hague Regulations were closely consulted by the British and American occupation authorities. W h e n the first enemy territories were occupied by the British forces in W o r l d W a r II, that is, the Italian colonies of Eritrea and Somalia, the instructions to the military administrators of those territories commenced with the following words: " T h e Military Administrator is charged with full administrative power within the occupied territory, which shall be exercised in accordance with Section III of the Regulations respecting the Laws and Customs of W a r on Land contained in an Annexe to the Hague Convention, 1907." 5 These instructions became a model for other territories. 6 It was recognized both during and after W o r l d W a r II that the 3 Cf., H y d e , III, 1908, w h o similarly points out the lack of training and special organization for its task of the U n i t e d States occupation army w h i c h administered part of the R h i n e l a n d after the armistice, 1918. 4 See, for examples of such criticism, T a y l o r and Braibanti, Administration of Occupied Areas, p. 8; Rennell, British Military Administration of Occupied Territories in Africa 1941-194J, pp. 343, 345; and, for a Russian point of view, Korovin, " T h e Second W o r l d W a r and International L a w , " 40 A.J.I.L. 753. 5 6

Rennell, op. cit., Loc. cit.

116.

Occupation

of Territory

211

Hague Regulations needed amplification and some modification, and work along such lines was carried out in Geneva Convention IV, 1949, which relates to the protection of civilians in time of war. T h e convention expressly states, however, that it is supplementary to sections ii and iii of the Hague Regulations, 7 which are, therefore, still in full effect except where modified by the convention of 1949. T h a t the Hague Regulations should have been preserved after the mature deliberation, incorporating the experience of two world wars, involved in preparing the convention of 1949 is ample refutation of the criticism that the Hague Regulations are archaic and cannot be applied to the conditions of modern warfare. Geneva Convention IV, 1949, reflected the bitter experiences of the civilian populations in the territories occupied by the Axis Powers in W h o l e W a r II. A whole section of thirty-two articles specifies the position of civilians in occupied territories, but most of the other provisions of the convention are also applicable to those civilians. 8 O n the whole, the effect of the convention of 1949 is to spell out in greater detail the rights which the Hague Regulations conferred in principle. W o r l d W a r II also focused attention on the need to establish specific, permanent branches within the armed forces, staffed by properly trained personnel, to deal with and execute the functions of military occupation. For instance, the United States army now maintains military government units, instructed and exercised in those functions. N o longer can this hitherto obscure branch of military science be treated haphazardly. In these days, when military occupations may be conducted on a vast scale and endure for many years, the manner in which they are discharged may not only determine whether a victory is consolidated, but also whether a future war may be avoided. T h e part that wise military government may fulfill in securing the initial victory has already been touched upon. Military government may be applied not only in enemy territory but in allied or domestic territory also. 9 W h e r e the latter territories are recovered by armed action from enemy occupation or from rebels treated as belligerents, it is recognized that military necessity may ' A r t . 154, Geneva Conv. IV, 1949. 8 See above, pp. 156 f. "In neutral territory too, when occupied by a belligerent in the course of a war. Feilchenfeld, op. cit., p. 8. In Auditeur Militaire v. Reinhardt, et al. (1923), Mil. Ct. of the Belgian Army of Occupation in Germany, Ann. Dig., 1923-1924, Case No. 239; Hackworth, VI, 386, it was held: "Legally there can be a military occupation even in cases where there is no war properly so-called; there is nevertheless an occupatio bellica." This case arose during the Belgian peacetime occupation of part of the German Rhineland following World War I.

212

Occupation

of

Territory

require the establishment of military government (or its modified version, "civil affairs") if the governments of the territories are absent or unable to function properly. Such areas are known as "liberated territories." Military administration may also be set up where such territories are threatened by the enemy, but not actually occupied by him. T h e consent of the existing or prior governments of the territories is not essential for the establishment of these occupation administrations; military necessity may dictate otherwise. 10 Military government is, of course, to be distinguished from martial law. T h e former is regulated by international law and is the temporary rule imposed upon territory wrested from an enemy in warfare. Martial law, on the other hand, is governed by municipal law and is the temporary rule of the domestic population, when necessity demands, through the military forces of the state. 11 T h e basis of all military government lies in the necessity for the occupying force to exercise the functions of civil government and to restore and maintain public order and safety where the occupying force has substituted its authority for that of the sovereign or previous government, or where the previous government is absent or unable to function properly. This is an obligation imposed by international law. 12 There is a distinction between military government and "civil affairs." Military government is "the supreme authority exercised by an armed occupying force over the lands, properties, and inhabitants of an enemy, allied or domestic territory." 13 On the other hand, the term "civil affairs" which came into common use on the Allied side during World War II denotes "the assumption by the responsible commander of an armed occupying force of a degree of authority less than the supreme authority assumed under military government, over enemy, allied, or domestic territory. T h e indigenous governments would be recognized by treaty, agreement, or otherwise as having a certain authority independent of the military commander." 14 WU.S. Civil Affairs Military Government, FM 27-5, OPNAV P22-1115, pp. 3, 4, 5; Connor and Friedrich, op. cit., p. 131. Public Prosecutor v. X (Eastern Java) (1948), Temp. Ct.-Martial, Surabaya, Netherlands E. Indies, Ann. Dig., 1948, Case No. 176 (Commander of Allied military force occupying territory reconquered from common enemy does not derive powers to issue military ordinances for the territory from the ordinary laws in force there, but directly from the generally recognized principles of war). u S e e U.S. Rules 6. In a broad sense, martial law is any law administered by military authority; see Hyde, III, 1910-1912. 12 U.S. Civil Affairs Mil. Govmt., pp. 3, 4; U.S. Rules 281; Art. 43, Hague Regulations, 1907; see also Dicey, Law of the Constitution, p. 541. 13 U.S. Civil Affairs Mil. Govmt., pp. 2, 3. llLoc. cit.

Occupation

of Territory

213

Civil affairs is obviously a type of administration more suited to "friendly" occupied territories, where greater cooperation can be expected from the inhabitants. Such were the administrations set up by the Allied forces in World War I I in the allied territories of France, Belgium, Luxembourg, the Netherlands, and Norway. Civil-affairs agreements were concluded with those governments. With Italy, however, first an enemy and then a cobelligerent, a civil-affairs agreement was made only after the Allied peace treaty with that country. 16 In considering the law on military occupation the dual nature of such an occupation must be borne in mind. Its primary objective is to further the purpose of the war in which the occupying forces are engaged and to ensure the maintenance and security of those forces; yet at the same time the occupant is bound to provide for the interests and welfare of the civilian population of the occupied territory as laid down by international law. W H A T O C C U P A T I O N IS Military occupation is always a question of fact. T h e Hague Regulations state (Article 42): "Territory is considered occupied when it is actually placed under the authority of the hostile army. T h e occupation extends only to the territory where such authority has been established and can be exercised." It follows that in an effective occupation the previous government in the territory has been rendered incapable of exercising there its governmental authority, and that the occupying force has substituted its own authority for it. Furthermore, the occupation only extends to the area of the territory where such conditions prevail. 16 A state may be partly occupied and partly free. Enemy troops may operate in a district without occupying it. Invasion is not necessarily coincident with occupation. Raiding parties, flying columns, reconnoitering detachments, flank guards, and the like may move through an area without occupying it. An occupant sets " Coles, "Civil Affairs Agreements for Liberated Territories," in Connor and Friedrich, op. cit., p. 1 3 1 . 18 A n occupant's authority is restricted to persons and property inside the occupied territory. "It does not bestow authority over persons irrespective of their domicile or residence." Feilchenfeld, op. cit., p. 87; see also ibid., p. 131 f. However, both third powers and the legitimate sovereign of the occupied territory are obliged to recognize the validity of measures taken inside the territory by the occupant which are in accord with international law. See ibid., pp. 1 3 9 - 1 4 2 ; also below, pp. 606-607; and Kent Jewelry Co. v. Kiefer (1952), 119 N.Y.S.2d 242 (Supreme Ct. of New York); 47 A.J.I.L. 503 (Effect given in the United States to U.S. occupation decrees in Germany in determining the validity of an assignment made in the U.S. zone of occupation in Germany).

214

Occupation

of

Territory

up some form of administration in the territory, an invader merely passing through it does not. Effective military occupation arises when the organized resistance has been overcome in the area and the troops in possession have established their authority to such an extent that they are in a position to assert that authority within a reasonable time in any part of the occupied area. T h i s does not mean that occupying troops must be stationed in every corner of the territory. T h e prerequisite is that they can make their authority felt when and where it is required; 1 7 the means and methods employed for this purpose, provided they are not unlawful, are immaterial, and will obviously bear a close relation to the type of territory and population. 1 8 In an occupied area there may still be forts or defended areas which have not capitulated to the occupying forces. Provided they are contained, so that they cannot interfere with the effective assertion of authority in the remainder of the territory, their presence does not render the occupation of the remainder less valid. For practical purposes, a military occupation may be divided into two phases. T h e first is the combat or wake-of-battle phase, which begins as soon as the area comes into control of the occupying or liberating force. "In active combat areas Civil Affairs/Military Government is necessarily limited to the most essential functions in conformity with the military situation. Such functions are usually directly exercised over the civilian population by the combat units of which Military Government troops will be a part. . . . Tactical commanders with the advice of their C A / M G staff officers will control the civilian population within the zone of operation without regard to political boundaries." 19 T h e second, or occupational, phase occurs when the tide of battle has receded well beyond the occupied territory, conditions there are fairly well settled, and administration becomes the main problem rather than battle. T h e military administrators now assume the dominant role in the territory in place of the field commanders. These administrators can then constitute a separate command in which the chain of command will be direct from higher to lower civil affairs or military government personnel. In such circumstances, "Local C A / M G officers will not be responsible to tactical unit commanders stationed in the area with regard to the administration of C A / M G activities, 17 The Hostage Case (United States v. List, et al.) (1948), U.S. Mil. Trib., Nuremberg, L.R.T.W.C., X I V , at p. 56. " S e e Hyde, III, 1882; von Glahn, The Occupation of Enemy Territory, pp. 28-29, for discussion on the employment of air forces for such purposes. 19 U.S. Civil Affairs Mil. Govmt., p. 37.

Occupation

of

Territory

215

but will report direct to higher CA/MG officers." 20 A garrison of combat troops forming a command distinct from the military administration will usually maintain the military security of the area. The occupational phase may itself change still further in character, as will be seen later,21 after the termination of active hostilities in the general war. Military occupation must be distinguished from subjugation, where a territory is not only conquered, but annexed by the conqueror. 22 In subjugation, not only do the invaders claim actual possession of the territory but also sovereignty over it. The nature of subjugation will be discussed more fully later,23 but it should be noted here that calling an occupation by the name of subjugation will not avail the occupant as a means of evading the obligations of an occupant imposed by international law. This plea was attempted by the defense before the Nuremberg Tribunal, which stated in its judgment that so long as there was an army in the field attempting to restore occupied countries to their true owners such territories could not be considered subjugated.24 However, the same ruling was cited in a later war-crimes judgment 20

l.oc. cit. Below, p. 225. On this distinction, see, for example, Schwarzenberger, I, 142, citing Ottoman Debt Arbitration (1925), Ann. Dig., 11)25-1926, Case No. 57. 23 Below, pp. 600 f. 24 Nuremberg Judgment, p. 83. See also Fauchille, II, par. 1159; Trial of Robert Wagner, et al. (1946), L.R.T.W.C., III, 23, heard before a French military tribunal. Wagner was the head of the civil government of Alsace during the German occupation in World War II. He was charged (inter alia) with the recruitment of French citizens in Alsace to serve against France. He attempted to justify such recruitment by claiming that Alsace had been annexed by Germany when the recruitment took place. This plea was rejected by the court and by the Court of Appeal (Cour de Cassation); Bindels v. Administration des Finances, Belgium, Cour Militaire at Liège (1946), Cour de Cassation (1947), Ann. Dig., 1947, Case No. 17; Trial of Greiser (1946), Supreme National Tribunal of Poland, L.R.T.W.C., XIII, 110-112, where the court held that the incorporation of the western Polish territories into the German Reich during World War II was criminal. The court expressed the opinion that a "criminal invasion" of another state's territory did not confer lawful rights to that territory. This judgment was delivered before the Nuremberg Judgment. Cf., the same position taken by the Polish Supreme National Tribunal in Trial of Buhler (1948), L.R.T.W.C., XIV, 46. On the other hand, the court in The Hostage Case, above, L.R.T.W.C., VIII, 59, stated: "We desire to point out that International Law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory. There is no reciprocal connection between the manner of the military occupation of territory and the rights and duties oi the occupant and population to each other after the relationship has in fact been established. Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject." Usurpation of sovereignty during a military occupation is declared a crime by Australian, Netherlands, and Chinese laws. L.R.T.W.C., XV, 131. 21

22

Occupation

2l6 (The

Justice

Case)

of

Territory

to support the view that the laws of belligerent

occupation apply only to an occupation during the course of actual warfare, and that once the enemy has been totally defeated those laws do not apply to the ensuing occupation. 28 In fact, the court ap* The Justice Case (United States v. Alstoetter, et al.) (1947), U.S. Mil. Trib., Nuremberg, L.R.T.W.C., VI, 28-31; TWC, III, 960-964. T h e court in this case held that the laws of belligerent occupation did not apply in regard to the occupation of Germany, following its unconditional surrender of May 8, 1945. This view was based on the complete disintegration of the German central government, the complete occupation of all Germany, and the fact that there were no longer any opposing German forces in the field. Yet in the Berlin Declaration of June 5, 1945, the Allied Powers, while assuming "supreme authority with respect to Germany," expressly disclaimed "annexation of Germany." T h e German state, therefore, did not cease to exist, although its government had disintegrated, and the Allied Powers merely exercised de facto authority, of a temporary nature, over that territory, that is, the authority exercised by an occupant. In Rex v. Bottrill; Ex parte Kuechenmeister (1947), 1 K.B. 41 (Court of Appeal, England); Ann. Dig., 1946, Case No. 132, a certificate from the British secretary of state for foreign affairs on the status of Germany was produced, which after referring to the Berlin Declaration, June 5, 1945, stated: "(2) T h a t in consequence of this declaration, Germany still exists as a State and German nationality as a nationality, but the Allied Control Commission are the agency through which the government of Germany is carried on. (3) No treaty of peace or declaration by the Allied Powers having been made terminating the state of war with Germany, His Majesty is still in a state of war with Germany, although, as provided in the declaration of surrender, all active hostilities have ceased." In United States ex rel. Kessler v. Watkins (1947), 163 Fed. Rept. 2d 140 (U.S. Circuit Ct. of Appeals, Second Circuit), Ann. Dig., 1947, Case No. 8, the court affirmed the continued existence of the German state after the unconditional surrender of World War II. That the German state never ceased to exist is further borne out by President Truman's proclamation of Oct. 24, 1951, terminating "the state of war between the United States and the Government of Germany." The recital of the proclamation states: "Whereas it has nevertheless been considered desirable to bring the existing state of war with Germany to a close and remove Germany from its present enemy status, thus eliminating certain disabilities affecting German nationals." See also, Quincy Wright, " T h e Status of Germany and the Peace Proclamation," 46 A.J.I.L. 299 f. Cf., Occupation of Germany Case (Zürich) (1945), Ct. of Appeal of Zürich, Switzerland, Ann. Dig., 1946, Case No. 86, where the court held in a civil action which involved the determination of whether Germany had ceased to exist as a state, that Germany had not ceased to so exist, since, although there was complete occupation of German territory and complete suppression of German resistance and Germany's allies, the occupying authorities had shown no intention to annex the bulk of that territory. "In other words, annexation does not come about, in spite of the definite termination of the war, before the issue of a declaration of annexation or the conclusion of a cessionary peace treaty. . . . If there be no annexation, the present position can only be one of belligerent occupation even though the factual requisites of debellatio [complete defeat of a belligerent] exist in an objective sense" (at pp. 189-190). In Grahame v. The Director of Prosecutions (1947), Control Commission Ct. of Crim. Appeal, Brit. Zone of Control, Germany, Ann. Dig., 1947, Case No. 103, the court claimed: " T h e Military Government of Germany is unprecedented in its nature . . . [the occupation authorities] are neither mere de facto authorities set up by a belligerent occupant with limited powers nor are they ruling the occupied territory adversely to any existing German Government, for there is no other German Government.

Occupation

of

Territory

217

pears to have misconceived the N u r e m b e r g J u d g m e n t u p o n this point. T h a t j u d g m e n t indicated that the doctrine of subjugation

involves

not merely military conquest b u t also v a l i d a n n e x a t i o n in order to avoid the application of the laws of w a r in occupied territory. 2 8 I t is n o w provided specifically by G e n e v a C o n v e n t i o n

IV,

1949

(Article 6) that the terms of the convention continue to a p p l y to occupied territory despite the general close of military operations in a conflict. 2 7 Further, b y A r t i c l e 4 7 , protected persons in occupied territory "shall not be deprived, in any case or in any m a n n e r whatsoever, of the benefits of the present Convention . . .

by any annexa-

tion by the [ O c c u p y i n g Power] of the whole or part of the occupied territory." T h e convention also applies " t o all cases of partial

or

total occupation of the territory of a H i g h C o n t r a c t i n g Party, even if the said occupation meets w i t h n o armed resistance."

28

T h e effect of military occupation, therefore, is to place the actual (de facto)

r u l i n g authority in the hands of the occupant. H i s rights

are, however, only temporary not permanent. T h e y are incidental to w a r a n d for the purposes of war. T h e legal (de jure)

sovereignty still

remains vested where it was before the territory was occupied, although obviously the legal sovereign is u n a b l e to exercise his r u l i n g powers in the occupied territory. 2 9 N o t only m a y there be n o

annexation

For these reasons we cannot agree that they are restricted by the limitations placed by the Hague Convention on a belligerent occupant." Followed by the same court in Dalldorf, et al. v. Director of Prosecutions (1949), Ann. Dig., 1949, Case No. 159. Cf., Br.M.M.L., Pt. I l l , par. 499, n. 2. 28 See also Oppenheim, II, 466-468; Feilchenfeld, op. cit., 119-124. 27 See above, p. 160. Cf., Hyde, III, 1905, where it was indicated, even before the Geneva Conventions of 1949, that the Hague Regulations of 1907 "would seemingly be applicable" to an occupation brought about by an armistice marking a cessation of hostilities. This is illustrated by the United States occupation of part of the Rhineland after the armistice terminating World War I hostilities; ibid., pp. 19061908. 28 Art. 2, Geneva Conv. IV, 1949, above, p. 157. T h e convention, therefore, applies to an occupation effected when no state of war exists between the parties: cf., the German occupation of Austria, 1938, and the major part of Czechoslovakia, 1939. 29 However, during the occupation of Belgium by Germany in World War I, the legal Belgian government published, outside the occupied territory, a decreelaw, April 8, 1917, penalizing the giving of aid to the enemy, malicious denunciation to the enemy, etc. After the occupation, the Belgian courts held that this decree applied to a person in the occupied territory at the time it was published, because of the legal sovereignty of the Belgian government over the occupied territory. Auditeur Militaire v. Van Dieren (1919), Conseil de Guerre of Brabant, confirmed by Mil. Ct. of Brussels, Hackworth, VI, 386. Cf., Re Hoogeveen, et al. (1944), Ct. of Cassation, Belgium, Ann. Dig., 1943-1945, Case No. 148 (A World War II case of similar effect); Public Prosecutor v. Reidar Haaland (1945), Supreme Ct. (App. Div.), Norway, Ann. Dig., 1943-1945, Case No. 154 (Decree of government in exile imposing death penalty for acts of treason and ill-treatment of Norwegian patriots valid for the occupied territories, but only enforceable there after the

2i8

Occupation

of

Territory

while the war continues, but the territory may not be set up as an independent state, nor even, it is stated, divided into two administrative districts for political purposes.30 end of the occupation); Public Prosecutor v. Lian (1945), Supreme Ct., Norway, Ann. Dig., 1943-1945, Case No. 155 (Decree of the government in exile prohibiting Norwegian citizens from acquiring property confiscated by the occupant); Ferrovie dello Stato v. S.A.G.A. (1946), Ct. of First Instance of Venice, Italy, Ann. Dig., 1946, Case No. 147 (Held, legislation of legitimate government of Italy applied also to the parts of Italy under enemy occupation); Nederlands Beheersinstituut v. Robaver (1947), Dist. Ct., T h e Hague, Holland, Ann. Dig., 1947, Case No. 108; affirmed (1950), Supreme Ct., Holland, Ann. Dig., 1949, Case No. 154 (Decree of Netherlands government in exile held applicable to occupied Holland). In Kauhlen Case (1920), Ann. Dig., 1919-1922, Case No. 323, arising out of World War I, the Belgian Ct. of Cassation held that a decree-law of the Belgian government issued while the Belgian territory was under German occupation and providing for the punishment of malicious denunciation to the enemy was applicable to a member of the German army of occupation. On the other hand, in a case arising from World War I, the Ct. of Appeal at Brussels stated that where new laws were enacted by the legal authority in an attempt to combat the military occupant and to injure his power, they were not capable of application in districts where a military occupation had been established. De Nimal v. De Nimal (1919), Hackworth, VI, 395; Ann. Dig., 1919-1922, Case No. 3 1 1 . A Belgian decree of Dec. 10, 1916, forbidding trading between Belgian and German nationals was held to have no force in occupied territory. Herwyn v. Muller (1922), Belgian-German Mixed Arbitral Tribunal, Hackworth, VI, 398. Cf., Occupation of Cavalla Case (1930), Ann. Dig., 1929-1930, Case No. 292, where the Court of Thrace, Greece, held that a Greek government decree of World War I was not valid in Greek territory under enemy occupation at the time of the decree. In State of the Netherlands v. Federal Reserve Bank of New York (1951) 99 F. Supp. 655 (U.S. Dist. Ct., S.D.N.Y.); 46 A.J.I.L. 149, the court held regarding the effect of the decrees of a government in exile that they were good outside occupied territory, but had no force or effect in occupied territory. T h e court referred to the fact that the Belgian authorities diverged somewhat from this theory in cases resulting from World War I, but stated: "Even the Belgian theory recognized that hostile measures, aimed at combatting the occupant and hampering his rule, were not applicable in those regions occupied by the enemy." However, this decision was reversed by the U.S. Court of Appeals which held: " T h e legitimate sovereign should be entitled to legislate over occupied territory insofar as such enactments do not conflict with the legitimate rule of the occupying power. . . . In view of the vagueness of Article 43 [of the Hague Regs.], it may occasionally be difficult in a particular case to determine where the occupant's authority ends and that of the absent sovereign begins." Ibid. (1953), 201 Fed. Rept. 2d 455 (U.S. Ct. of Appeals, Second Circuit). See also Re X.Y. (1945), Council of State, Greece, Ann. Dig., 1943-1945, Case No. 147 (enactment of Greek government in exile). In British and Polish Trade Bank A.G. v. N.V. Handelmaatschappij Albert de Bary and Co. (1954), Ct. of Appeal of Amsterdam, Holland, 50 A.J.I.L. 441-442, it was held that during the belligerent occupation of the Netherlands a Dutch bank validly paid a debt owed to a Danzig bank under the compulsion of a German occupation ordinance, even though the ordinance had been declared null by the Netherlands government as contrary to international law. See also McNair, Legal Effects of War, pp. 368-383, on the legal effect of the decrees of a displaced legitimate government where the whole or part of its territory is occupied by the enemy. 80 Oppenheim, II, 342. But see von Glahn, op. cit., pp. 96-266 (new, temporary boundaries for administrative districts).

Occupation

of Territory

219

T h e actual moment when an occupation comes into being is a question of fact to be determined in accordance with the principles laid down for an effective occupation. T h e moment may be difficult to fix with any accuracy, so some latitude should be allowed in its determination. 3 1 Usually a proclamation will be issued by the occupant stating the fact of occupation, the extent of territory affected, and the date when it came into being, among other matters. Provided the date given bears a reasonable relationship to the facts, it would be regarded as the time when the occupation began. Once an occupation has started, it must be maintained effectively if it is to be regarded as valid. If the occupant evacuates the territory, is driven out, or ceases to maintain effective control for any reason, and the legitimate government is able to resume its authority and functions, occupation ceases.32 Should the occupant move on the main body of his troops in continuance of the war, the existence of the occupation is not affected if the remaining force exercises effective control. Rebellion in the territory or the operations of guerrilla bands do not affect the validity or continuity of the occupation, unless the legitimate government is effectively reestablished or the occupant fails to suppress such challenges to its authority. C O N D U C T OF T H E PROCLAMATIONS, AND

OCCUPATION

ORDINANCES,

ORDERS,

INSTRUCTIONS

Military occupation introduces an entirely new government, even though only de facto, to a territory. Since the function of a government is to rule, it must make its will known to the inhabitants. T h a t will is not unfettered and must be exercised in accordance with international law. 33 T h e usual practice is for the occupant to commuCf. Br.M.M.L., Pt. Ill, par. 506. See Trial of Bauer, et al. (1945), French Mil. Trib., France, L.R.T.W.C., VIII, at pp. 17-19. 33 A good deal of misconception has gathered about the statement of the Duke of Wellington that martial law, i.e., the law administered by an occupation commander, is "the will of the general who commands the army." This utterance was explained by him as meaning that although the general in command possessed supreme power he was "bound to lay down distinctly the rules and regulations according to which his will was to be carried out." In regard to his own practice in governing a population under martial law "by his own will," he stated that "he declared that the country should be governed according to its own national laws, and he carried into execution that will. He governed the country strictly by the laws of the country; and he governed it with such moderation, he must say, that political servants and judges who at first had fled or had been 31

32

220

Occupation

of

Territory

nicate his will to the population of the territory by proclamations. Such proclamations lay down the law of the occupation, generally stating principles and leaving the details to be filled in by accompanying or subsequent ordinances or regulations. As soon as possible after an occupation begins, the theater commander or an authorized subordinate should issue to the inhabitants a proclamation informing them of the fact of occupation, the extent of territory affected, and the obligations, liabilities, duties, and rights of the population under the military administration. Such a proclamation is not actually mandatory in international law, but obviously represents the most convenient way of introducing the new regime and all that it implies to the population affected, and is the common practice. 34 This proclamation should be brief, in simple terms, disseminated as widely as possible and published both in the languages of the occupant and those of the inhabitants. Naturally, the actual contents will vary according to the prevailing circumstances. In enemy territory the tone employed will be firm, though it should not be vindictive; in allied or nonhostile areas the proclamation will be more friendly, and may be supported by a manifesto from the legitimate government calling on officials and inhabitants to cooperate with the occupant. Generally, the following points will be covered in the initial proclamation. Declaration of the occupation; the extent of area affected; purpose and policy of the occupation; the extent to which the civil administration will be affected (in hostile areas, the declaration of the supremacy of the military authority of the occupant); that local laws and customs will continue in force unless and until abrogated; that local officials will continue in office; that those engaged in public utilities and other essential services carry on their regular tasks; treatexpelled, afterwards consented to act under his direction. The judges sat in the courts of law, conducting their judicial business and administering the law under his direction." Speech of the Duke of Wellington, Debate on Affairs in Ceylon, House of Lords, April 1, 1851, Hansard's Pari. Deb., 3d Series, CXV (1851), 880881, cited by Moore, International Law and Some Current Illusions, pp. 290-291, who comments (at p. 291): "It is thus evident that when, in discussing martial law, we refer to the 'will' of the commanding general, we refer to regulated and not to arbitrary action, so that even in the theatre of war, where the military commander is supreme, the idea of law does not disappear." » U.S. Civil Affairs Mil. Govmt., p. 56; U.S. Rules 278; Br.M.M.L., Pt. Ill, par. 504. Occupation law may be issued by the occupying state, not necessarily by the military commander of the occupying forces, since the latter derives his authority from the former. Atty.-General for Israel v. Sylvester (1949), Supreme Ct., Israel, Ann. Dig., 1948, Case No. 190.

Occupation

of Territory

221

ment of the inhabitants, giving assurance that persons who obey the occupant's instructions have nothing to fear and will be duly protected in their persons, property, family rights, religion, and occupation—on the other hand that offenders will be punished; that inhabitants continue at or resume their usual occupations unless directed to the contrary. 35 Following the first proclamation and as soon as practicable, the occupant should issue a detailed set of rules in the form of proclamations or ordinances regulating the conduct of the population. These will include the various acts regarded as war crimes if committed by persons not recognized as lawful belligerents under international law, 36 and the punishment for such acts. T h e effect of these penal provisions must not be retroactive. 37 Proclamations or ordinances will also set up the judicial machinery for dealing with offenses against the occupation, creating various grades of military tribunals, their jurisdiction and procedure. Military tribunals with jurisdiction over the civilian population will not normally be set up in territory under the control of a friendly government. 38 If an occupation is of any substantial duration, the occupant will find it necessary to legislate on a large number of matters by proclamation or ordinance, so that in time a body of proclamation law will be formed. It will help both the occupant and the population, therefore, if publication is made in a convenient and standard format from the beginning, so that reference to and assembly of material is easy. In character, all proclamations and ordinances should be brief and concise, especially the proclamations. Offenses should be clearly and simply stated, together with the punishments. Legal terminology should be avoided, since technical expressions may be difficult to render in translation. Publication should be made both in the languages of the occupant and those of the inhabitants. Translations should be clear, simple, and accurate. T h e use of too general language should be avoided; if at all possible, offenses should be defined specifically and not lumped together in a general prohibition which might mean anything or everything. Careful and skillful drafting will do a great deal toward ensuring stability in a territory, by enabling the inhabitants to know exactly where they stand in relation to the

U.S. For 37 Art. 38 U.S. 35

38

Civil Affairs Mil. Govmt., pp. 57, 58, 59. categories of lawful belligerents, see above, pp. 55 f. 65, Geneva Conv. IV, 1949. Civil Affairs Mil. Govmt., p. 63.

222

Occupation

of

Territory

occupant. This will also lessen the need for subsequent amendments to published military legislation, and so avoid that jungle of occupation law which too often results, through whose tangled growths even the military administrators themselves are hard put to trace a path. As in most aspects of military government, careful planning from the outset will eliminate much unnecessary trouble later. Proclamations or ordinances are customarily issued in the name of the theater commander or by authorized subordinate officers. Where an occupation is stabilized in a particular area, such legislation will normally be issued in the name of the military governor or administrator. Publication to the population may be by any practicable method, such as by posting notices, publication in newspapers, broadcasting, and the like. Every effort should be made to obtain as wide publication as possible, since an uninstructed population can hardly comply with the laws of which it is ignorant. An essential objective of an occupation is to restore and ensure public order and safety; not to meet the pleas of unwitting offenders with the legal maxim that ignorance is no excuse. Article 65 of Geneva Convention IV, 1949, provides that the penal provisions enacted by the occupying power shall not come into force before they have been published and brought to the knowledge of the inhabitants 39 in their own language. T h e effect of these penal provisions must not be retroactive. Undoubtedly, the occupant will issue an official gazette in which all such official notices will be published. This will remain the permanent legislative and administrative record of the occupation and it should be carefully compiled and published from the beginning. Its pages will be continually referred to by administrators, judges, lawyers, all types of officials, merchants—occupiers and occupied alike. Occupation officers administering particular localities in the territory are usually given authority to issue detailed orders and instructions relating to their own districts. Every effort should also be made to keep records of such orders and instructions, whether written or oral. 89

Penal provisions must be b o t h published and b r o u g h t to the knowledge of the

inhabitants. Verbal, radio, or loud-speaker announcement would come only the heading of bringing to the knowledge of the inhabitants, and not publication. Final "The

penal

Record,

provisions

under

constitute

I I A , 833, R e p o r t of Committee III. U.S. Law 4356 states:

referred

to

in

the

foregoing

article

[Art.

65]

must

be

promulgated in written form. It is not sufficient that they be announced by radio or loudspeakers." N o t e also the requirement concerning language. It is u n l a w f u l for an occupant to attempt to replace the l a n g u a g e of the area with his own; see von G l a h n , op. cit., pp. 59, 64.

Occupation

of Territory

ADMINISTRATION GENERAL

223 OF

OCCUPIED

TERRITORY;

PRINCIPLES

Article 43 of the Hague Regulations states: " T h e authority of the power of the State having passed de facto into the hands of the occupant, the latter shall do all in his power to restore, and ensure, as far as possible, public order and safety, respecting at the same time, unless absolutely prevented, the laws in force in the country." Where hostile territory is occupied, all functions of the enemy government—legislative, executive, or administrative; general, provincial, or local—cease, or continue only with the sanction, express or implied, of the occupant. In their place the invader sets up his own administration. No matter what name he applies to his government, whether it is termed military or civil, the circumstances in which it arose alone determine its true nature and as a military occupant he is bound by the relevant rules of international law. In general, since he is legally only temporarily in possession of the territory for the purposes of the war he should exercise only the power necessary for those purposes, plus the maintenance of order and safety, and the proper administration of the area.40 Naturally, the occupant will suspend or amend laws which are essentially political in nature, and political or constitutional privileges, as well as laws which adversely affect the welfare and safety of his command. Examples are laws relating to recruiting for the enemy forces, the right to bear arms, the right of assembly, the right to vote, freedom of the press, and the right to travel freely in the territory or leave it. 41 In allied or domestic territory, the extent of control by the military would depend on the circumstances prevailing at the time of entry, but in general such control would be much less extensive than that practiced in enemy countries. After the initial combat phase of the occupation, provided there was an effective indigenous government capable of operating, responsibility for the civil administration would usually be turned over to it. T h e Hague Regulations state (in Article 43) that the occupant shall respect "unless absolutely prevented, the laws in force in the country." This means that, on the whole, the civil and penal laws of the occupied 40 Br.MM.L., Pt. I l l , par. 510. Westlake, International Law, II, 2d ed., points out that the word "safety" in Art. 43 does not render adequately "vie publique" in the original French, which describes the social and commercial life of the country. 41 For the right of protected persons who are not nationals of the power whose territory is occupied to leave that territory, see Art. 48, Geneva Conv. IV, 1949, below, p. 267.

Occupation of Territory

224 42

territory continue in effect. T h e occupant may, however, alter or suspend any of the existing laws or promulgate new ones, if demanded by the exigencies of war. 43 Those exigencies may, in fact, demand a great deal. If a war is fought in proclaimed defense of democracy, for the freedom of humanity, and to protect the dignity of man, against states bent on crushing such ideals and whose own internal organization rejects such concepts, it surely cannot be claimed that, having occupied such a territory in the course of the war, the occupant should be bound to continue to enforce the very institutions against which he was fighting. Obviously the exigencies of the war will in that case demand that such institutions be eliminated, since, to put it on a purely military basis, the glaring contradictions apparent in such a course might well cause an alarming deterioration in the morale and fighting efficiency of the occupant's forces. Changes in fundamental institutions should be avoided unless absolutely necessary, and military occupation should not be used as an excuse for exercising rights that only a peace treaty can confer. However, too exaggerated a respect for enemy institutions should not hinder action in proper cases. International law allows a reasonable latitude in such circumstances, and there is no need to wait for years, as sometimes happened in World W a r II, before a law repugnant to human decency was abrogated in territory under occupation. It is recognized, for instance, that discriminatory laws based on race, color, creed, or political convictions will be repealed as soon as at all possible.44 It has been alleged in adverse criticism of Article 43 of the Hague Regulations that it is "archaic" and was not applied in occupations resulting from World W a r II, because although it prohibits an occupying belligerent from adopting policies which would cause fundamental changes in the institutions of the occupied country, yet the prime purpose of the occupation of Germany and Japan was to change drastically certain basic institutions. 45 However, to appraise correctly modern occupations of enemy countries, they may, for the purpose of considering this criticism, be divided into two stages. First there is the stage while the war still continues. During this a

Br.MM.L., Pt. Ill, par. 523; U.S. Rules 286; U.S. Law 370. T h e occupant of a territory where extraterritorial privileges were enjoyed by a foreign state may not curtail those privileges except in cases of necessity. Hyde, II, 871. 48 T h e term "laws in force" includes not only legislative enactments, but decrees and rules issued by the executive power of the occupied country. Fauchille, II, par. 1166 (3). " U.S. Civil Affairs Mil. Govmt., p. 15; U.S. Law 371 c. 46 For example, Taylor and Braibanti, op. cit., p. 8; Korovin, op. cit., p. 753.

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period all efforts of the occupant are bent to achieving victory in the general war, and the conduct of the occupation is designed to assist in this process by strengthening the war effort in various ways. Even at this time the exigencies of war may compel the occupant to change fundamental institutions in the occupied country, as has been discussed. But such changes are imposed by the needs of the war and are made for the sole purpose of bringing the war to a successful conclusion. T h e second stage begins with the termination of actual hostilities and may continue until a peace treaty is signed. In these days, for a variety of reasons a postwar occupation may continue for many years before a peace treaty is concluded. T h e occupant is in the meantime forced to continue to administer the country, not on a wartime basis, but in conditions which, for practical purposes, are those of peace. However, human existence demands organic growth, and it is impossible for a state to mark time indefinitely. Political decisions must be taken, policies have to be formulated and carried out. Where wars have been fought on ideological bases, as happened in World War II in the struggle of democracy against totalitarianism, the final defeat of a totalitarian belligerent can only mean that its rulers are completely toppled from power. When the victor moves in he has to fill a governmental vacuum. He has the choice of continuing the evil institutions and policies of the defeated government (German or Japanese in the criticism cited) or of setting the feet of such nations on a more wholesome path. Faced by such a decision, the victors could do no other than carry out the policies for which the war was fought. For Germany and Japan after World War II, this meant the elimination of the institutions upon which rested the totalitarianism of those states. If, in those circumstances, the victors are not "absolutely prevented" (to use the words of Article 43 of the Hague Regulations) from respecting those institutions, then those words have no sensible meaning. T o do otherwise would be to win the war, but lose the peace.46 " " T h e U n i t e d States Initial Post-Surrender Policy for Japan," A u g . 29, 1945, sent to General M a c A r t h u r , supreme commander of the A l l i e d Forces in the Pacific, stated the ultimate objectives as: " T o insure that Japan will not again become a menace to the U n i t e d States or to the peace and security of the world . . . to bring about the eventual establishment of a peaceful and responsible government which will respect the rights of other states . . . it is not the responsibility of the A l l i e d Powers to impose on Japan any form of government not supported by the freely expressed will of the people." T o achieve the two basic objectives four means were laid down: (1) L i m i t a t i o n of Japan's sovereignty to the four main islands; (2) complete disarmament and demilitarization, plus the total elimination of the influence of militarism from her political, economic, and social life and the vigorous

226

Occupation

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A r t i c l e 4 3 of the H a g u e R e g u l a t i o n s is, therefore, by no means archaic, and its principles were followed in the postwar occupations of G e r m a n y and J a p a n after W o r l d W a r I I . T h i s point of view is supported by Article 64 of G e n e v a C o n v e n t i o n I V , 1949, w h i c h states concerning the penal legislation of an occupied area: " T h e penal laws of the occupied territory shall remain in force, w i t h the exception that they m a y be repealed or suspended by the Occ u p y i n g Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration a n d to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to f u n c t i o n in respect of all offenses covered by the said laws. " T h e O c c u p y i n g P o w e r may, however, subject the population of the occupied

territory

to provisions w h i c h are essential to enable

the

O c c u p y i n g P o w e r to fulfil its obligations under the present C o n v e n t i o n , to maintain the orderly government of the territory, a n d to ensure the security of the O c c u p y i n g Power, of the members a n d property suppression of institutions expressive of the spirit of militarism and aggression; (3) encouragement of the Japanese people to develop a desire for individual liberties and respect for fundamental human rights and to form democratic and representative organizations; (4) the opportunity for the Japanese people to develop for themselves an economy which will permit the peacetime requirements of the population to be met. " T h e Basic Post-Surrender Policy for J a p a n " adopted by the Far Eastern Commission, June 19, 1947, followed this directive. P. H. Taylor states that during the first four months of the occupation the four freedoms were concretely put into practice. In addition to firm guarantees of civil rights and liberties, other specific accomplishments included the emancipation of Japanese women, the freeing of political prisoners, freedom of political parties, freedom of thought and research, and promotion of trade unionism based on the right of collective bargaining. The new constitution transferred sovereignty from the emperor to the people and gives the latter a comprehensive bill of rights. There was decentralization of government and land reform was promoted. Taylor, " T h e Administration of Occupied Japan," in Connor and Friedrich, op. cit., pp. 141, 146. "In any contemporary occupation two distinct objectives are intermingled. . . . The dual objectives of suppressing potential resurgence of enemy military might and evoking changes in the cultural milieu are not easily separated." Braibanti, " T h e Role of Administration in the Occupation of Japan," in Connor and Friedrich, op. cit., p. 158. Concerning Italy, it has been stated: "By the time the war in Italy was over, there was an entire program of economic and social reconstruction in operation. The directives from the Army and the ACC [Allied Control Council] . . . now provided for the restoration of economic life, for the elimination of Fascist institutions, for the maintenance of public security and for the handling of political parties and partisan movements. General Alexander, through Proclamation 7, issued in July 1943, dissolved Fascist organisations and also reinstated some preFascist institutions, and among them was the Italian General Confederation of Labor." Fisher, "Allied Military Government in Italy," in Connor and Friedrich, op. cit., pp. 116, 117. See also Br.M.M.L., Pt. I l l , par. 510, n. 1.

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of Territory

227

of the occupying forces or administration, and likewise of the establishments and lines of communication used by them." Since the aims and provisions of this convention are humanitarian, 47 designed to protect the individual without discrimination both in his dignity and existence, it is obvious that Article 64 gives an occupant authority to do away with institutions, fundamental or not, in the occupied territory which conflict with the operation of such principles. On the other hand, the same convention safeguards the population of the occupied territory against attempts by the occupant to deprive them of the benefits which they already enjoy, and which are in conformity with the principles of the convention, by changing the institutions or government of the territory. It equally forbids such a course whether taken by direct action or in the form of a civilaffairs agreement between the occupant and the indigenous authorities or as a consequence of annexation of the territory. Article 47 of the convention reads: "Protected persons48 who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory." 49 V A R I O U S A S P E C T S OF ADMINISTRATION

Problems of finance are a prime concern to all administrators in all times, but the military administrator is particularly affected because an occupation is usually not self-supporting financially. It is often necessary for the occupying state to make up from its own pocket a deficit between revenue and expenditure. Financial administration of an occupied country is therefore usually conducted, at least during the period when war still continues, on the basis of authorizing only those expenditures which are essentially necessary for the proper government of the area and which will help to maintain its security, and to avoid disbursements which can safely be postponed for the " See Resolution 8 of the Diplomatic Conference of Geneva, 1949, Geneva Conventions . . . , (U.S. Dept. of State Pub. 3938, Gen. For. Pol. Ser. 34, 1950), p. gz. 48 For definition of "protected persons," see above, pp. 157-158. 49 " T h e restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed directly by the occupant. Acts induced or compelled by the occupant are nonetheless its acts." U.S. Law 366. Cf. Br.M.M.L., Pt. I l l , par. 518, n. 2.

228

Occupation

of

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period of the occupation. T h a t is, the occupation is usually conducted on what is sometimes termed "a care and maintenance" basis. When the occupant takes over the financial administration of the country, together with the rest of its administration, all existing fiscal laws remain in effect. Article 48 of the Hague Regulations lays down that if the occupant collects the taxes, dues, and tolls payable to the state in the occupied territory, he must do so, as far as possible, in accordance with the legal basis and assessment in force at the time, and is in consequence bound to defray the expenses of the administration of the occupied territory to the same extent as was the national government. T h e occupant is not entitled to create or levy new taxes, as that is the prerogative of only the legitimate sovereign of the territory. 50 It will be seen later, however, that the occupant may recoup himself for any deficit in revenue by levying a contribution from the population. 51 Local or municipal taxation comes within the foregoing rules. It may be observed, however, that where the law governing a municipality gives it authority to increase the rate of local taxation the occupant may invoke such a provision. T h e obligation laid upon the occupant to follow the legal basis and assessment in force at the time of occupation, applies only as far as is possible. If, owing to the flight or noncooperation of local officials, this course cannot be followed, both the United States and British manuals suggests that it is good practice to allot the total sum of taxes usually paid among the districts, towns, communities, and parishes and require the local authorities to collect it as a head (capitation) tax. 52 First charge on the monies collected are the expenses of the administration of the occupied territory, as indicated in the Hague Regulations, and any surplus may be used to defray the cost of the occupying army. T h e Hague Regulations are designed to prevent exorbitant demands on the inhabitants of the occupied area. Neither taxes nor contributions may be used to enrich the occupant, but must be applied solely to the costs of administering the territory and the maintenance of the occupying army. m Br.M.M.L., chap, xiv, par. 372; Rolin, I, par. 495; Hyde, III, 1887, points out that while a statement to the effect that the occupant could exercise such powers was contained in the United States Rules of Land Warfare of 1934 (Rule 295), the statement was not repeated in the 1940 edition of those rules. However, the 1956 edition ( T h e Law of Land Warfare) now states: "Unless required to do so by considerations of public order and safety, the occupant must not create new taxes." U.S. Law 426b. Cf. Br.M.M.L., Pt. I l l , par. 529. See also below, note 54.

See below, pp. 303-304. Br.M.M.L., chap, xiv, par. 371; U.S. Rules II, par. 1190. 51

62

294; U.S. Law 426a; cf., Fauchille,

Occupation

of Territory

229

Article 48 refers to "taxes, dues, and tolls payable to the State." Local dues or rates, on the other hand, collected by local authorities may only be used by the occupant for the purposes for which they are raised. He may, of course, supervise the spending of such monies and prevent its hostile use. Incidentally, inhabitants of the territory who contribute money to their legitimate government to enable it to prosecute the war, or who divert public funds for this purpose, may be punished for war treason to the occupant. 5 3 Although the occupant may not increase taxes (and this customs dues in force when the occupation came into effect 54 ) prevents him from reducing or waiving such levies. 55 He may some taxes or dues politically unsound or unsupportable, or other reasons.

includes nothing consider bad for

T h e occupant will not usually pay the debts of the displaced legitimate government. 56 T h i s would apply to all types of government obligations, including government securities such as treasury bills, treasury drafts, payment orders and the like, outstanding bills owed by the former government, and unpaid salaries and pensions. T h e reason for this is that by honoring enemy governmental obligations the occupant might unwittingly help to bolster enemy credit, strengthen the enemy's general war effort, and involve the occupying state in unknown liabilities. 57 ra

Br.M.M.L., chap, xiv, par. 370. Apparently the manner in which customs dues are levied and the method of collection might be varied, provided the incidence of the dues is not materially altered, e.g., ad valorem dues might be substituted for specific dues and categories might be regrouped. See also on customs duties, Hyde, III, 1887. Feilchenfeld, op. cit., p. 49, states that Art. 48, Hague Regs., would not seem to exclude taxation increases, "particularly such changes as have been made desirable through war conditions, or, in the case of an extended occupation, general changes in economic conditions." Further, he appears to be of the opinion that the occupant may introduce new taxes and customs duties in cases where they are necessary to safeguard the welfare of the territory and therefore maintain public order. Cf. U.S. Law 4266; Br.MM.L., Pt. Ill, par. 529. œ Cf., Feilchenfeld, op. cit., p. 83. The occupant is not liable to pay taxes levied in the occupied territory for the occupied state. Société des Nouvelles Vedettes de Dinard v. Administration des Douanes (1944), Tribunal de Paix of St. Malo, France, Ann. Dig., 1943-1945, Case No. 153 (German forces in occupation of France not liable to pay French customs tolls on troops transported by French steamship company). 56 Hyde, III, 1897, suggests: "It is not unreasonable for the occupant to endeavor to defray from available funds within its reach that belong to the territorial sovereign, debts due by it to foreign or domestic creditors." 67 For a discussion of the question of debts owed by the occupied state, see Feilchenfeld, op. cit., pp. 67-69. Concerning the occupant's position regarding debts owed to the occupied state, see pp. 290-291. Obviously an occupant himself may incur debts while administering the territory, but he cannot validly M

230

Occupation of Territory

The occupant will certainly exercise close supervision and control of all major aspects of life in the occupied territory. Where the local officials are prepared, and allowed, to continue at their posts, the function of the military administrators will mostly be supervisory, otherwise the occupant himself will have to take over the conduct of the necessary departments. The economic life of the territory will engage the close attention of the invaders, both from the standpoint of making the country self-supporting and that of supplying their own forces. However, the occupant must not employ economic measures for the purpose of enriching himself at the expense of the occupied territory. He may exercise rigid control over the entire economy of the territory, including its currency (the occupant may substitute his own or a new currency for the local currency), 58 banking, commodities, prices, and rationing. Industry and manufacturing facilities may be developed, commerce and trade regulated (including any restrictions on hours and places of trading). Maximum agricultural production may be burden the legitimate government with his debts. Feilchenfeld, op. cit., p. 69. However, it might be equitable for a legitimate government which has retaken possession of the territory to satisfy such debts where the consideration for the debt constitutes a benefit to the legitimate government. Cf. the judgment in Triborgh (Tilburg) v. State of the Netherlands (1949), Supreme Ct., Holland, Ann. Dig., Case No. 162. 68 Cf. Aboitiz and Co. v. Price (1951), 99 F. Supp. 602 (U.S. Dist. Ct., Utah), 46 A.J.I.L. 152, which held Japanese occupation currency in the Philippines legal. " T h e power of the Military Governments established in occupied enemy territory to issue military currency in the exercise of their governmental power has never been seriously questioned"—Haw Pia v. China Banking Corp. (1948), Supreme Ct., Republic of the Philippines, 43 A.J.I.L. 822. Also Eisner v. United States (1954), 1 1 7 F. Supp. 197 (U.S. Ct. of Claims), 48 A.J.I.L. 503 (Military government has power to establish a rational monetary system as in collapsed Germany). Contrast, Ko Maung Tin v. U Gon Man (1947), High Ct., Burma, Ann. Dig., 1947, Case No. 104, which held that in Burma, "the Japanese Military Authorities acted in excess of their authority under international law, in issuing a system of currency parallel to the currency established by the lawful government." Followed in Dooply v. Chan Taik (1950), Sup. Ct. of the Union of Burma, 45 A.J.I.L. 381, where Japanese military notes were held "not . . . lawful money. They were no better than tokens which were given and had value as media of exchange so long as the occupation lasted." During World War II, it was the common practice on both sides to issue occupation currencies in territories occupied by them. See also on occupation currencies, Feilchenfeld, op. cit., pp. 70-81. U.S. Law 430 states: " T h e occupant may also institute exchange controls, including clearing arrangements, in order to conserve the monetary assets of the occupied territory. Such measures must not, however, be utilized to enrich the occupant or otherwise circumvent the restrictions placed on requisitions, contributions, seizures, and other measures dealing with property. Intentional debasement of currency by the establishment of fictitious valuation or exchange rates, or like devices, as well as failure to take reasonable steps to prevent inflation, are violative of international law." Cf. Br.M.M.L., Pt. I l l , par. 5 3 1 .

Occupation

of Territory

231

encouraged by various means, including land reforms. 59 Restrictions or conditions may be placed on all commercial relations with the territory; or existing restrictions (such as customs tariffs) may be removed. 60 In pursuance of its obligation to ensure, as far as possible, public order and safety,61 the occupant will establish an efficient police force, fire department, jails and prisons service; and collect arms, ammunition, explosives and weapons of war of all descriptions left behind in the wake of war. If necessary, the inhabitants may be called on to perform police duties, assist the regular police to maintain public order, and help to put out fires.62 However, Geneva Convention IV, 1949 (Article 51) forbids the occupying power to compel protected persons to employ forcible means to ensure the security of the installations where they perform compulsory labor. Public health and sanitation is another responsibility of the occupant. Geneva Convention IV, 1949, states: " T o the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics. Medical personnel of all categories shall be allowed to carry out their duties. "If new hospitals are set up in occupied territory and if the competent organs of the occupied State are not operating there, the occupying authorities shall, if necessary, grant them the recognition provided for in Article 18.63 In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel and transport vehicles under the provisions of Articles 20 and 21.64 "In adopting measures of health and hygiene and in their implementation, the Occupying Power shall take into consideration the moral and ethical susceptibilities of the population of the occupied territory" (Article 56). " T h e Occupying Power may requisition civilian hospitals only temporarily and only in cases of urgent necessity for the care of U.S. Civil Affairs Mil. Govmt., p. 24. Br.M.M.L., Pt. I l l , par. 530. 61 Art. 43, Hague Regulations, 1907. 63 BrM.M.L., Pt. I l l , par. 545; see also Art. 51, Geneva Conv. IV, 1949; Art. 52, Hague Regs., 1907. 63 See above, p. 163. Art. 18 provides for the protection of civilian hospitals. 64 See above, pp. 164-165. Art. 20 provides for the protection of personnel of civilian hospitals; Art. 21 similarly for civilian medical transport. 60

80

232

Occupation

of

Territory

military wounded and sick, and then on condition that suitable arrangements are made in due time for the care and treatment of the patients and for the needs of the civilian population for hospital accommodation. " T h e material and stores of civilian hospitals cannot be requisitioned so long as they are necessary for the needs of the civilian population" (Article 57). By Article 55,65 the occupying power has the duty of ensuring the medical supplies of the population to the fullest extent of the means available to it, bringing in the necessary stores if the resources of the occupied territory are inadequate. Medical supplies may not be requisitioned except for use by the occupation forces and administration personnel and then only if the requirements of the civilian population have been taken into account. T h e protecting power may verify the state of the medical supplies in the territory. T h e obligation of maintaining some form of postal service in the occupied territory is now imposed by Article 25, Geneva Convention IV, 1949, which requires that all persons in occupied territory must be enabled to give news of a strictly personal nature to members of their families wherever they may be, and to receive news from them. Such correspondence must be forwarded speedily. If circumstances render it difficult or impossible to exchange family correspondence by the ordinary post, the belligerents must decide in consultation with a neutral intermediary (such as the Central Information Agency for protected persons) how to ensure the fulfillment of their obligations under the best possible conditions, particularly with the cooperation of the national Red Cross societies. If it is deemed necessary to limit family correspondence, the restrictions shall be confined to the compulsory use of standard forms containing twenty-five freely chosen words, and to a limitation of one such form sent per month. 66 Usually the occupant maintains the civil postal services of the occupied territory, but, subject to the cited requirements of Geneva Convention IV, 1949, may limit or prohibit telegraphic and postal correspondence, particularly if local officials refuse to cooperate. T h e occupant may, and almost certainly will, impose censorship on correspondence. He may also fix his own postal rates and is not bound by rates prevailing before the occupation, although he should remember that postage rates are not taxation but charges for service. It will also be necessary to bring the occupying government within " S e e below, pp. 274-275, for this article, which also imposes on the occupant the obligation of ensuring the food supplies of the population. " S e e also above, p. 167.

Occupation

of Territory

233

the scope of international postal agreements in regard to postal relations with foreign countries. Obviously the circumstances of a military occupation do not allow for freedom of the press. T h e occupant is not required to observe existing laws regarding the press; he may impose a censorship on it, 67 may prohibit it entirely or prescribe regulations for publication and circulation especially in unoccupied parts of the country and in neutral countries. 68 In a modern war it is hardly likely that an occupant would do away with the press and so deprive himself of one of the most effective means of information and propaganda in relation to the population. Telegraphs, telephones, cables, wireless transmitters, radio broadcasting facilities and other civilian communications come under the control of the occupant. Regardless of whether they belong to the enemy state or are privately owned, the occupant may use them for the duration of the occupation. 6 9 Submarine cables connecting an occupied territory with a neutral territory must not be seized or destroyed, except in case of absolute necessity. 70 But apparently this only applies to that part of the cable on land or in territorial waters; is could be cut or worked beyond territorial waters. 71 T h e occupant exercises authority over all means of transportation within the territory, both public and private, seizing and utilizing them or regulating their operation. 7 2 Similar control and supervision will be exercised by the occupant over public-utility services of all kinds. T h i s includes port facilities and operations, as well as the port area. Water, fuel, and lighting may be made the subject of restrictions where necessary. One of the usual methods of exercising control over the population is to issue identity cards to all inhabitants. Movement by civilians within the territory is restricted, and only allowed outside defined areas by a system of passes. Road blocks are set up at various points to enforce such regulations. Certain areas may be entirely closed to the inhabitants living outside them. Entry and exit from the territory is strictly regulated. Curfews are often imposed, especially in the early days of the occupation. " As on other means o£ communication, including radio, theater, motion pictures and television; cf., U.S. Law 377; Br.MM.L., Pt. Ill, par. 532. 08 Br.M.M.I.., Pt. Ill, par. 533; U.S. Law 377. 68 Art. 53, Hague Regulations, 1907; see also below, p. 296. 70 Art. 54, Hague Regulations, 1907. 71 Br.M.M.L., Pt. Ill, par. 597, n. 2, citing Hague Conference, 1907, Actes, III,

'3-

72

Art. 53, Hague Regulations, 1907, see also below, pp. 290-291, 296.

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Occupation

of

Territory

Religious convictions and practices must be respected in all circumstances. Public worship must be permitted. 73 T h e occupying power must permit ministers of religion to give spiritual assistance to the members of their religious communities. It must also accept consignments of books and articles required for religious needs and facilitate their distribution in the occupied territory. 74 In countries where the clergy is paid by the state, their salaries must be continued, if the occupant collects taxes.75 On their part, the clergy must not use their position to incite resistance, unrest, or revolt among the population. Such conduct will render them liable to prosecution. 76 In these days of ideological warfare, the supervision of education is an important function of the occupant. Schools and educational establishments must be permitted to continue their work, but teachers must not indulge in political talk and activity detrimental to the occupant, under the guise of education. Totalitarian states have used schools extensively to spread their doctrines. T h e occupant may revise textbooks, check curricula, and investigate the records of the instructors in order to prevent subversive or harmful instruction. Schools that will not submit to this control may be closed. This applies as much to private schools and institutions as to public schools.77 Article 50 of Geneva Convention IV, 1949, states that the occupying power must, with the cooperation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and education of children. Should the local institutions be inadequate for this purpose, the occupying power must make arrangements for the maintenance and education, if possible by persons of their own nationality, language, and religion, of children who are orphaned or separated from their parents as a result of the war and who cannot be adequately cared for by a near relative or friend. Public welfare is another facet of administration with which the occupant is charged. He will provide relief in cash or kind where necessary; assist in the distribution of civilian relief supplies; supervise public and private institutions for the care of children, the poor, the physically and mentally handicapped, and the aged; reestablish local charitable and relief institutions to maintain the opera73

Art. 46, H a g u e Regulations, 1907; A r t . 27, Geneva C o n v . I V , 1949.

" A r t . 58, Geneva Conv., I V , 1949. 75

Art. 48, H a g u e Regulations,

76

Br.M.M.L.,

77Ibidpar.

1907.

Pt. I l l , par. 536. 537; U.S. Civil Affairs Mil.

Govmt.,

pp. 26, 27.

Occupation

of Territory

835

tion of such institutions. 78 Various provisions for relief, laid down by Geneva Convention IV, 1949, where the whole or part of the population of an occupied territory is inadequately supplied, will be discussed later. 79 Complete records and reports of all fields of civil affairs and military government should be kept, as they provide essential data for use at peace conferences, trials before claims commissions, investigative bodies, and for historical purposes. 80 Treatment of enemy property in occupied territory is discussed later. 81 It may be noted here that officers and soldiers of the occupant must not make use of their position or power in the occupied territory for private gain, not even for commercial transactions otherwise legitimate. 82 CIVIL-AFFAIRS AGREEMENTS FOR LIBERATED AREAS

Where friendly territories are occupied in the course of military operations, the military administrators can expect a high degree of cooperation from the local inhabitants. T o obtain the highest degree of cooperation, the administration should be based on the consent of the governed rather than on the strict letter of international law, which in this instance merely recognizes rights derived from effective forcible control. 88 T h e former was the course followed in W o r l d W a r II by the Allies, who concluded what were known as "civil-affairs agreements" with allied governments in such circumstances. These agreements were made with Norway, the Netherlands, Belgium, Luxembourg, and France; the agreement with Norway forming the pattern for the rest. Such civil-affairs agreements proved highly successful in practice, furnishing both the Supreme Allied Command and the liberated areas with clear understandings of their rights and obligations. In content, the agreements provided, first, for a military phase in areas affected by military operations, during which the Supreme Allied Commander could take whatever measures the military situation made necessary. In a second phase, as soon as the military situation permitted, responsibility for the civil administration would be U.S. Civil Affairs Mil. Govmt., p. 27. See Arts. 59-63, below, pp. 275-277. 80 U.S. Civil Affairs Mil. Govmt., p. 27. 81 Below, chapter viii. 82 U.S. Rules 328. 83 Above, pp. 211 f. re

79

236

Occupation

of

Territory

turned over to the various indigenous governments, subject to such special arrangements as might be required in areas of vital importance to the Allied forces. T o maintain liaison at the headquarters of the Supreme Allied Commander, the various Allied governments whose territories were affected were to appoint accredited military missions. D u r i n g the military phase the Supreme Allied Commander was to make the fullest possible use of the advice and assistance of the civil affairs officers of these missions and of loyal local authorities. A t the same time the indigenous governments were to reorganize or reestablish their administration and judicial services, communicating their instructions through the appropriate members of their military missions. Special provisions in the agreements related to courts and the administration of justice. Allied service courts and authorities had exclusive jurisdiction over all members of their forces. T h e latter could, however, be arrested for offenses against local law by the local police and held until they could be handed over to the appropriate Allied service authority. T h e same provisions operated in reverse for persons subject to the exclusive jurisdiction of the local authorities w h o committed offenses against the occupying Allied force, although the Supreme Allied Commander had power to bring to trial before a military court any person alleged to have committed offenses against Allied military forces. Machinery was to be set u p for mutual assistance in investigations, arrests, and trials. T h e r e was to be speedy trial by indigenous courts of persons alleged to have committed offenses against the persons, property, or security of the Allied Expeditionary Force. Members of the Allied forces and organizations, their employees and persons accompanying them were to be exempt from all direct taxes, whether from state or local authorities. Allied property was not to be sold in the liberated areas except with the concurrence of the governments concerned. T h e Supreme Allied Commander had the power to requisition civilian labor, billets, and supplies and make use of lands, buildings, transportation and other services for the military needs of his command; where possible, all requisitions were to be made through the indigenous authorities. Allied claims commissions were to examine and dispose of any claims for damage and injury from enemy action or operations against the enemy. 84 W i t h Italy, first an enemy and then a cobelligerent in W o r l d W a r II, a civil-affairs agreement was concluded after the peace treaty. 84 Coles, "Civil Affairs Agreements for Liberated Territories," in Connor Friedrich, op. cit., pp. 131, 138.

and

Occupation

of

Territory

237

ADDENDUM S T A T U S OF F O R E I G N A R M E D FORCES IN F R I E N D L Y T E R R I T O R Y NOT

UNDER T H E I R

OCCUPATION

Distinguished from belligerent occupation of friendly territory is the position of troops of a belligerent which are present in time of war on the territory of an ally or friendly state, not as an occupying force, but by invitation or consent. T h e status of such troops is, of course, not governed by the laws of belligerent occupation, but some reference may usefully be made at this point to the law relating to the jurisdiction which such troops may exercise while in the territory of the friendly power, and the jurisdiction which that power may exercise over them. T h e law on the point is somewhat beclouded by controversy. It does appear to be clear, however, that by consenting to the presence of such troops on its territory, the friendly power tacitly agrees to renounce some exercise of local sovereignty over them. 85 W h a t is in doubt is the extent of this tacit renunciation. T h e r e is general agreement that the local sovereign cedes territorial jurisdiction over the following offenses committed by such foreign troops 86 on his soil, even when the offenses are perpetrated against 86 The Schooner Exchange v. M'Faddon, et al. (1812), Supreme Ct. of the United States, 7 Cranch 116 at 139-140; Evans, Leading Cases, p. 232, at pp. 235-236; Chung Chi Cheung v. The King (1939), A . C . 160 at p. 176 (Judicial Committee of the Privy Council, England); Ann. Dig., 1938-1940, Case No. 87, at pp. 270-271; Manuel v. Ministère Public (1943), C o u r d'Assises, and M i x e d Ct. of Cassation, (1943), Egypt, Ann. Dig., 1943-1945, Case No. 42, at p. 157; Wright v. Cantrell Supreme Ct. of New S. Wales, Australia, Ann. Dig., 1943-194;, Case No. 37, at p. 134M A foreign merchant seaman is not entitled to jurisdictional immunity, neither is a deserter from foreign armed forces who was not stationed before his desertion in the country where he committed an offense, and is without real connection with those forces in that country. Holder v. Ministère Public (1944), M i x e d Ct. of Cassation, Egypt, Ann. Dig., 1946, Case No. 38. On the other hand, a deserter from foreign troops stationed in such country is still regarded as belonging to such troops. Péricléos v. Ministère Public (1944), Mixed Ct. of Cassation, Egypt, Ann. Dig., 1946, p. 92. In Chow Hung Ching v. The King (1948), High Ct., Australia, 45 A.J.I.L. 379, it was held that two civilian employees of the Chinese army, subject to Chinese military law and discipline under the control of Chinese army officers, sent to collect war surplus goods in Australian mandated territory in time of peace (1946), were not immune from prosecution in the Australian courts as members of the armed force of a friendly foreign power admitted by consent to the territory, for assaulting a native while off duty. In United States v. Weiman (1953), 3 U S C M A 216 (U.S. Ct. of Mil. Appeals), it was held that Polish nationals, recruited in the American zone of occupation in Germany and brought to France for service as members of a labor service company with the forces of the United States in

238

Occupation

of

Territory

his own population: disciplinary offenses, purely military offenses, offenses committed within the military establishments, camps, quarters, or lines of the foreign troops, and offenses committed outside those areas by troops on duty at the time under orders from their military superiors.87 Troops on duty are considered to form an integral part of the corps or unit to which they belong although detached on such duty. 88 In the foregoing cases, the foreign military authorities are entitled to exercise sole jurisdiction over their troops, unless they agree, expressly or impliedly, to allow the territorial courts to assume jurisdiction. 89 However, in regard to other cases opinion is divided and, apparently, international law provides no settled rule. 90 France, were subject to the U.S. Uniform Code of Mil. Justice while in France working for the armed forces, such jurisdiction not being excluded by the U.S. treaty with France. 87 Manuel v. Ministère Public, above; Ministère Public v. Tsoukharis (1943), Mixed Ct. of Cassation, Egypt, Ann. Dig., 1943-1945, Case No. 40; In re Gilbert (Admiral Ingram Camp Case) (1944), Supreme Fed. Ct., Brazil, Ann. Dig., 1946, Case No. 37 (Brazilian citizen shot by U.S. sentry at entrance to U.S. military camp in Brazil. Held, military courts of U.S. had jurisdiction in respect of the alleged offense of the sentry); Liwanag v. Hamill (1956), Philippine Supreme Ct., 50 A.J.I.L. 693-694 (Although by agreement Philippine law continues to be in force in U.S. bases in that country, except as otherwise specified, the enforcement of that law within the bases is left to American officers); King, "Jurisdiction over Friendly Foreign Armed Forces," 36 A.J.I.L. 539, and "Further Developments concerning Jurisdiction over Friendly Foreign Armed Forces," 40 A.J.I.L. 257. T h e various authorities are discussed at some length in the above-mentioned cases and articles. See also Art. 399 of the Code of Private International Law (known as the Bustamente Code), annexed to the Convention on Private International Law, adopted at Habana, Feb. 20, 1928, at the Sixth International Conference of American States, as follows: "Nor are the penal laws of the State applicable to offenses committed within the field of military operations when it authorizes the passage of an army of another contracting State through its territory, except offenses not legally connected with the said army." Hudson, International Legislation, IV, 2323. 88 Manuel v. Ministère Public, above; Ministère Public v. Tsoukharis, above; Ministère Public v. Triandafilou (1942), Ct. of Cassation, Egypt, Ann. Dig., 19191942 (Supp. Vol.), Case No. 86, sailor on official mission (service commandé). 88 See Chung Chi Cheung v. The King, above (Murder of captain of Chinese Customs cruiser by member of the crew in Hong Kong territorial waters tried by British court at Hong Kong with the implied consent of the Chinese authorities); Gounaris v. Ministère Public (1943), Mixed Ct. of Cassation, Egypt, Ann. Dig., 1943-1945, Case No. 41; Anne, et al. v. Ministère Public (1943), Mixed Ct. of Cassation, Egypt, ibid., Case No. 33. w See the varying opinions expressed by the courts of different countries in the following cases: Anne, et al. v. Ministère Public, above; Reference re Exemption of United States Forces from Canadian Criminal Law (1942), Supreme Ct., Canada, Ann. Dig., 1943-1945, Case No. 36; Wright v. Cantrell, above; Ministère Public v. Tsoukharis, above; Gounaris v. Ministère Public, above; Manuel v. Ministère Public, above; In re A.F. (1945), Tribunal Correctionel of the Isle of Chios, Greece, Ann. Dig., 1943-1945, Case No. 43. In United States v. Sinigar (1955), 6 USCMA 330, 50 A.J.I.L. 960, the U.S. Ct. of Military Appeals stated: "Where . . . a soldier belonging to a foreign garrison leaves his camp, post or station, not on duty but

Occupation

of Territory

239

T h e basis for the exclusion of the jurisdiction of the local sovereign has been succinctly stated as follows: "A State which admits to its territory an armed force of a friendly foreign Power impliedly undertakes not to exercise any jurisdiction over the force collectively or its members individually which would be inconsistent with its continuing to exist as an efficient force available for its Sovereign." 91 T h e same grounds were originally stated in larger terms in the judgment of the United States Supreme Court in The Schooner Exchange v. M'Faddon, et al?2 which has provoked much of the legal discussion on this topic. T h e court stated: "A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. T h e grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops, during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require." 93 However, there has been no general acceptance of the view that there is an implied waiver of all jurisdiction. Considering the admitted basis upon which the jurisdiction of the local sovereign is excluded, it would at least appear logical that the friendly foreign troops should come under the exclusive criminal jurisdiction of their own military authorities in matters which concern or would affect the efficient exercise of their military duties. It is clearly incompatible with the efficient functioning and discipline for recreation and pleasure, and commits an offense, the local authorities are competent to punish him." n Wright v. Cantrell, above, at p. 134. " A b o v e , 7 Cranch at 139-140; Evans, Leading Cases, pp. 235-236, judgment of Chief Justice Marshall. 98 Following this authority is the U.S. Supreme Ct. decision in Wilson, Secretary of Defense, et al. v. Cirard (1957), 354 U.S. at p. 529, which states: " A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction. The Schooner Exchange v. M'Faddon, 7 Cranch 116, 136."

240

Occupation

of

Territory

of a military force, especially in time of war, that a completely extraneous authority should be able to interfere with and exercise control over its members in matters affecting its essential purpose and duties. T o permit such interference and control w o u l d nullify the very reason for the presence of the troops on foreign soil, namely, as an effective military force. O n the other hand, there appears to be no reason why the local sovereign should not retain civil jurisdiction over the friendly foreign troops in his territory in regard to purely personal actions not connected with their military duties, so long as the pursuit of such actions does not materially interfere with those duties. 94 In any case, the military courts of most forces, such as courts-martial, are not usually competent to deal with civil claims concerning members of their forces. However, it is clear that the territorial courts should entertain no civil claims concerning the performance of official duties by members of the visiting force. 95 T h e remedy there is by claim through diplomatic channels against the state to which the force belongs. In practice, the relations between the members of the visiting force and the host country are usually regulated in detail by agreement between the two states, and this is the most satisfactory way to avoid friction in those relations, since, as has been shown, the implication to be drawn from international law in such matters is often not free from controversy. 96 JUSTICE IN O C C U P I E D

TERRITORIES

T h e manner in which justice is administered in the occupied territory sets the standard of the administration, which will accordingly be " S e e Wright v. Cantrell, above (Action for defamation); Guebali v. Colonel Mei (1943), Civil T r i b u n a l of Cairo, Egypt, Ann. Dig., 1943-1945 (Action for possession of a house). See also, Capellani v. London and Lancashire Insurance Company, Ltd. (1947), Mixed Ct. of Appeal, Egypt, Ann. Dig., 1947, Case No. 32 (Claim for death of husband, killed by car driven by member of British armed forces; widow subrogated to latter in respect of latter's claim under a policy of motor car insurance, for purpose of determining civil liability of the assurers). 96 See, for example, Henon v. Egyptian Government and British Admiralty (1947), Civil T r i b . of the Mixed Cts., Egypt, Ann. Dig., 194"], Case No. 28; Gallant v. West (1955), 36 M.P.R. 14 (Supreme Ct. of Newfoundland, Canada); 49 A.J.I.L. 412 (Commander of U.S. air base in Newfoundland sued for libel by hotel owner. Held, foreign forces under their own commands in Newfoundland by arrangement, entitled to be treated on same footing as the country's [Canada's] own forces). See also, King, "Jurisdiction . . . " 36 A.J.I.L. 564, and "Further Developments . . . ," 40 A.J.I.L. 268. 96 C/., Rouse and Baldwin, " T h e Exercise of Criminal Jurisdiction under the N A T O Status of Forces Agreement," 51 A.J.I.L. 29 f.

Occupation

of Territory

241

largely judged on that basis. In all circumstances, justice should be impartial, prompt, and efficient. Most matters dealt with by the courts will have no material relation to the war in progress. In these matters, the peacetime standards of justice recognized by civilized humanity should prevail and be applied. W h e r e legal process relates to the exceptional situation created by the presence of the occupation régime and the war effort in which it is engaged, the rules of international law should be strictly observed; 97 and in dealing with crimes which concern that situation the occupant should, in dispensing justice, bear in mind that he is dealing with people w h o are not his nationals and bear him no allegiance, tempering his decisions to that extent. As stated previously, 98 the Hague Regulations (Article 43) require the occupant to respect, unless absolutely prevented, the laws in force in the country occupied. 9 9 T h i s follows from the principle that the occupant exercises only de facto authority in the territory while the legal sovereignty still remains with the true owner. Additionally, the same regulations, in Article 23 (h), particularly forbid the occupant to declare abolished, suspended, or inadmissible the right of the subjects of the hostile party to institute legal proceedings. 100 In general, therefore, the civil and penal laws of the territory continue to be valid, and the local courts usually continue to exercise jurisdiction over the inhabitants except for crimes affecting the stability and security of the occupation regime itself, the occupation forces, or the war effort of the occupant. T h e civil and criminal laws

87 An example of the abuse of judicial process in occupied territory is provided by Trial of Robert Wagner, et al., above. Wagner, head of the German occupation administration in Alsace during World War II, was convicted of complicity in premeditated murder by a French military war-crimes tribunal for abuse of legal process in the occupation courts resulting in judicial murder. He was found to have dictated or ordered sentences in those courts (at p. 40). See also The Justice Case, above, L.R.T.W.C., VI, 62; TWC, III, 1063, and passim. In 0verland's Case (1943), Dist. Ct. of Aker, Ann. Dig., 1943-1945, Case No. 156, a Norwegian court in occupied territory refused to base its decision on legislation of the occupant which was obviously in contradiction to Art. 43, Hague Regs. 88 Above, pp. 223-224. 99 Among the offenses against the law governing the occupation of enemy territory committed by Germany in World War II was that it abolished local courts "and set up courts manned by members of the Nazi totalitarian régime and system. These laws of occupation were cruel and extreme beyond belief and were enforced by the Nazi courts in a cruel and ruthless manner against the inhabitants of the occupied territories, resulting in grave outrages against humanity, against human rights and morality and religion, and against international law." "The Justice Case," above, TWC, III, 1060-1061. 100 See above, pp. 47-48.

242

Occupation

of

Territory

of the occupant's home territory do not as such apply or extend to the occupied territory. 101 Neither may the inhabitants of occupied territory be deprived of their rights under international law and subjected solely to the occupant's domestic law by forcibly deporting them to the occupant's home territory. This was made clear even before Geneva Convention IV, 1949, was formulated. T h e infamous German Nacht und Nebel (Night and Fog) Decree of February 7, 1942, under which persons in occupied territories were spirited away to Germany for trial or punishment, was illegal although the accused were tried or punished on German soil according to German law. 102 Similarly, in a warcrimes trial before a British miiltary court, the judge advocate stated of persons in occupied territory: "Quite obviously if it is wrong to show lack of respect to their family life and individual life in their own country, you cannot get out of that obligation simply by taking them to your country and ill-treating them there." 1 0 3 T h e same principle was illustrated in numerous other war-crimes trials, such as The Belsen Trial10* and The Hadamar Trial,105 which related to crimes committed in concentration camps on German soil against persons from occupied territories, among others. T h e protection which international law affords to persons forcibly deported from occupied territories to the home territory of the occupant also extends to the children of those persons born to them while they are held in the occupant's home territory. In The Velpke Baby Home Trial, the German accused were convicted of war crimes against the infants of Polish nationals deported to forced labor in Germany, even though the children were born in Germany. 106 Civil litigation will usually be left almost entirely to the operation 101 See, for example, Hackworth, VI, 400, citing War Services Law (Czechoslovakia Case (1928), Supreme Administrative Court of Czechoslovakia, Ann. Dig., 192J1928, Case No. 378. Cf., The Case of Nai (1947), Supreme Court of the U.S.S.R., 43 A.J.I.L. 190 (Soviet military occupation of Germany. Soviet zone military tribunal held that a private German national in Germany was not subject to the Soviet Criminal Code. Decision affirmed by the Russian Supreme Court). 1M Nuremberg Judgment, p. 6a; The Justice Case, above, TWC, III. 103 The Rühen Baby Home Trial (Trial of Tyrolt, et al.) (1946), Brit. Mil. Ct., Helmstedt, Germany; cited by Brand in Introduction to The Velpke Baby Home Trial (Trial of Gerike, et al.) (1946), Brit. Mil. Ct., Germany, WCT Series, VII, xxxvi. 101 The Belsen Trial (Trial of Kramer, et al.) (1945), Brit. Mil. Ct., Germany, WCT Series, II. 106 The Hadamar Trial (Trial of Klein, et al.) (1945), Brit. Mil. Ct., Germany, WCT Series, IV. 100 The Velpke Baby Home Trial, above.

Occupation

of

Territory

243

of the indigenous courts, providing of course that the local judges and magistrates continue to exercise their duties and the legal machinery remains intact. 107 Should those officials have fled and the legal mechanism be gravely impaired as a result of the military operations, it will then be for the occupant to set the courts in operation again and provide personnel to run them, if necessary using his own officers and nationals for that purpose. T h e last course will always be avoided where possible, because it is usually most difficult for the occupant to find sufficient personnel within his own ranks who are skilled enough in the laws of the occupied country to take over such onerous responsibilities. 108 Also this would mean a diversion of manpower needed for tasks more germane to his war effort. In general, therefore, the occupant will content himself with a supervisory role over civil litigation, ensuring that the local courts are administering efficient justice and reviewing their decisions. Legislation promulgated by the occupant affecting civil matters will be applied by the local courts. W h e n an occupation begins, a moratorium is usually declared by the occupant, and this will normally apply to all civil litigation for the recovery of debts, as well as prohibiting all transactions of real estate for the time being. T h e purpose is to prevent forced sales and wild speculation in land in times of panic and instability. T h e restriction will be removed when conditions are more settled. T h e occupant is much more concerned with criminal law than civil law since he is particularly charged by the Hague Regulations with restoring and ensuring public order and safety, as far as possible, 109 and is also concerned with repressing offenses directed against himself and his forces. T h e provision of the Hague Regula107 In S.A.C.A. v. Lazzi and the Ministry of the Interior (1948), Ct. of Cassation (United Sections), Italy, Ann. Dig., 1949, Case No. 158, it was held that, notwithstanding the fact of Allied military occupation, the activities of the Italian civil administration of the occupied territories could be reviewed by the Italian courts. Such administration remained Italian. 108 Greek courts have held that the Bulgarian occupant was entitled to apply his own civil law and procedure to maintain public order and keep society alive where the Greek legal officials withdrew en masse. Thrace (Notarial Services) Case (1949), Ct. of Appeal of T h r a c e , Greece, Ann. Dig., 1949, Case No. 167; In re P. (Komotini Case) (1948), Ct. of First Instance of Rhodope, Greece, Ann. Dig., 1948, Case No. 187. However, although the Greek officials may have fled, it is difficult to conceive that Greek legal texts were not available for use by the Bulgarian occupant. 109 Art. 43. T h e duty is laid by the Hague Regulations on the occupant, not the inhabitants. Engelen v. Belgian State (1949), Ct. of Cassation (Second Chamber), Belgium, Ann. Dig., 1949, Case N o . 169.

844

Occupation

of

Territory

tions has n o w been greatly e x p a n d e d in relation to penal legislation by

Geneva

Convention

IV,

1949, w h i c h

lays d o w n

the

following

rules: " T h e penal laws of the occupied territory shall remain in force, w i t h the exception that they m a y be repealed or suspended by the Occupying

Power

in

cases where

they

constitute

a

threat

to

its

security or an obstacle to the application of the present Convention. Subject to the latter consideration 1 1 0 a n d to the necessity for ensuring the effective administration of j u s t i c e , 1 1 1 the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said l a w s . 1 1 2 " T h e O c c u p y i n g P o w e r m a y , however, subject the population of the occupied territory to provisions w h i c h are essential to enable the O c c u p y i n g P o w e r to fulfil its obligations u n d e r the present C o n v e n tion, to m a i n t a i n

the orderly government of the territory, a n d

to

ensure the security of the O c c u p y i n g P o w e r , 1 1 3 of the members a n d 110 "E.g., where the courts are corrupt or unfairly constituted." Final Record, IIA, 833, Report of Committee III. 111 "E.g., where during the hostilities preceding the occupation judicial administration has collapsed and the Occupying Power must consequently set up its own courts to ensure that offenses against the local laws may be properly tried." Ibid., 833112 Cf., In re X. (1920), Ct. of Appeal of Nancy, France, Ann. Dig., 19/9-/922, Case No. 334; Hackworth, VI, 397, a World War I case of a defendant acquitted of infanticide by a court established in the name of the German empire in an occupied region of France. She was prosecuted on the same charge after the war before the French courts, which held that the decision by the German court was of no effect in France, since the legally constituted court was suppressed and infanticide came within the latter's jurisdiction. Also Occupation Tribunals Case (1949), Supreme Ct., Austria, Ann. Dig., 1949, Case No. 175 (Judgments of tribunals of occupant regarded as foreign judgments and right of Austrian State to prosecute not merged therein). And see various cases cited in Feilchenfeld, op. cit., p. 149. In Maung Hli Maung v. Ko Maung Maung (1946), High Ct. (Appellate Civil), Burma, Ann. Dig., 1946, Case No. 141, it was held concerning the Japanese occupation of Burma that the occupant could reorganize the preexisting courts in the occupied territory by setting up a new court, provided the court "did not purport to exercise any jurisdiction that had not been exercised before, nor exercise it in any new way" (at p. 346). See also below, p. 246, n. 121. 113 In Zabrovsky (Eliezer) v. General Officer Commanding Palestine, Representing the Commander-in-Chief, Middle East (1945), Palestine Supreme Ct., sitting as High Ct. of Justice, Ann. Dig., 1943-1945, Case No. 17, a resident of Palestine, then administered by Britain under a League of Nations mandate, was deported from Palestine to Eritrea, an Italian colony then under British occupation. There he was detained by an order, dated Oct. 14, 1945, of the chief administrator of Eritrea, under an occupation enactment (Proclamation No. 54) which purported to authorize that officer to arrest and detain any person whom he had reasonable belief to be, or to have recently been concerned, either inside or outside the occupied territory, in activities prejudicial to public safety or to the safety of the British or any of the Allied armed forces, or for the preparation or instigation of such

Occupation

of

Territory

245

property of the o c c u p y i n g forces or administration, and likewise of the establishments and lines of communication used by them"

(Article

64). L a w s w h i c h conflict with the application of the convention

may,

therefore, be repealed or suspended, and the o c c u p a n t may introduce and enforce legislation essential to the f u l f i l l m e n t of his obligations under the convention. T h i s provision gives the occupant authority to reform the penal laws of the territory where they conflict w i t h

the

basic h u m a n rights and dignity of m a n assured by the convention. 1 1 4 Such reforms need not necessarily be connected w i t h the security of the occupant and that of his forces. " T h e penal provisions enacted by the O c c u p y i n g Power shall not come into force before they have been published

and

brought

to

the knowledge of the i n h a b i t a n t s 1 1 5 in their o w n language. T h e effect of these penal provisions shall not be retroactive"

(Article 65).

" I n the event of a breach of the penal provisions promulgated by it by virtue of the second paragraph of Article 64, the O c c u p y i n g Power may h a n d over the accused to its properly constituted, non-political m i l i t a r y 1 1 6 courts, on condition that the said courts sit i n the occupied country.117 country"

Courts

118

In Article

of

appeal

shall

preferably

sit

in

the

occupied

(Article 66). 27 the convention

requires

that protected persons

be

an act. It is difficult to see on what authority under the law of belligerent occupation an occupying power may receive and detain in the occupied territory dissident elements forcibly deported there from a distant land which happens to be ruled by the same power, on the pretexts set out in the proclamation. T h e purpose of such action can hardly be to maintain the security of the occupying power in the occupied territory; further, the detention order here was made well after all hostilities in World W a r XI had ceased. See also ibid. (1947), Judicial Committee of the Privy Council, Britain, Ann. Dig., 1947, Case No. 22. 111 "E.g., where laws providing for racial discrimination make it impossible for Article [27] to be applied in the territory." Final Record, IIA, 833, Report of Committee III. 115 See above, p. 222, n. 39. 116 Not civil courts, which were rejected because they might lead to the extension to the occupied territory of part of the civil legislation of the occupying power, and are more likely to be political in character than military courts. Final Record, IIA, 833, Report of Committee III. 117 T h e term "occupied country" is used because the term "occupied territory might well comprise several countries" (loc. cit.). Under the infamous Nacht und Nebel Erlass (Night and Fog Decree), Feb. 7, 1941, the Germans secretly transferred to Germany for trial and punishment persons in occupied territories who offended against the Reich or German forces. No information concerning such persons was afterward allowed to reach relatives or friends, the purpose being to create anxiety in their minds. Nuremberg Judgment, p. 62; "The Justice Case," above, TWC, III, 1038 f. 118

See preceding note.

246

Occupation

of

Territory

treated with the same consideration, without any adverse distinction based, in particular, on race, religion, or political opinion. 119 "The courts shall apply only those provisions of law which were applicable prior to the offence, and which are in accordance with the general principles of law, 120 in particular the principle that the penalty shall be proportionate to the offence. 121 They shall take into u9

Above, pp. 168-169. " " A difficult problem concerning the administration of justice in occupied territory is whether during the occupation the local (municipal) courts of the territory can pass on the validity of enactments promulgated by the occupant and measures taken by him. T h e question has been termed controversial and decisions can be found favoring either point of view. See Ann. Dig., 1919-1942 (Supp. Vol.), p. 287; ibid., 1949, pp. 503-506; I.L.R., 1950, pp. 4 1 1 - 4 1 8 . Logically, it would appear that since the occupant is limited by international law in his power to rule the occupied territory, the local courts are entitled to refuse to apply laws and measures which are patently beyond his powers under international law. However, the circumstances of an occupation do not permit the courts of the conquered territory to prescribe to the conqueror the extent of his powers. Apparently, the most practicable course for the courts to adopt is the middle road of declining jurisdiction in a case where they are required to apply a law which is patently beyond the power of the occupant to enact (cf., the opinion of Rolin, I, par. 451), and leave to the occupant the sole responsibility for enforcing the law, if he persists in that course. An instance where a local court appears to have adopted a middle road without declining jurisdiction is In re Lecoq, et al. (1944), Conseil d'État, France, Ann. Dig., 1943-1945, Case No. 161, where the French administrative tribunal was deemed to remain competent to determine the legality of measures taken by the French local authorities, even where those measures were taken on the direction of the occupation authorities, "but only if and so long as such determination does not involve the interpretation of acts of an international nature, and does not touch upon the rights of the occupying Power." Cf., Requisition of Private Property (Austria) Case (1949), Constitutional Ct., Austria, Ann. Dig., 1949, Case No. 188; Billeting of Troops Case (1950), same court, I.L.R., 1950, Case No. 135. 121 A crime committed by a person in occupied territory may result in charges being brought against him both in the military courts of the occupant and in the local tribunals. For instance, a civilian accused of armed robbery could be tried by the military courts for unlawful possession of arms under enactments of the occupant, and by the local courts for armed robbery under pre-occupation law. In such case, it would be the duty of each tribunal to take account of any punishment levied in the other court to avoid duplication of punishment. However, it is recognized that the punishments will not necessarily coincide, since the seriousness of the crime may vary when looked at from the standpoint of the security of the occupant and the interest of the general population. In the same way, the plea of res judicata will not always be an effective answer to prosecution in an occupation court after judgment in a local court, and vice versa. However, the doctrine of res judicata, which is obviously one of the "general principles of l a w " mentioned in Art. 67, will clearly apply to bar further proceedings before a military or local court where one of those courts has already rendered judgment on what are, in effect, the same charges. In this connection, "the necessity for ensuring the effective administration of justice," referred to in Art. 64, would certainly entitle an occupant to avoid duplicity of jurisdiction in cases falling within the competence of both types of court by assigning particular cases to the exclusive jurisdiction of one such court. This was the practice followed, for example, during World War I I by British occupation authorities in the Middle East. For the attitude of French

Occupation

of

Territory

consideration

the fact that

Occupying Power" The

occupant

retroactive, 1 2 3

247 the accused is not a national

122

(Article 67).

is,

therefore,

barred

from

making

of

penal

and such laws must comply generally w i t h

the laws

accepted

standards of justice. I n particular, it is enjoined that the penalty must be proportionate to the offense. T h i s last refers to the fact that, in dealing w i t h offenses w h i c h affect the occupying power a n d its forces, the

military

courts

assess

their

punishments

with

the

deterring such offenses. T h a t is the function of military

object

of

courts—to

deter, so that the w a r effort of the occupant will continue u n i m p e d e d . T h e occupation government is only temporary a n d its military justice is not concerned, at least primarily, with long-range views. I t has little regard for retributive or reformative punishments;

indeed the w a r

crimes it punishes m a y have been actuated b y the highest patriotic and altruistic motives. Its punishments will be p r o m p t a n d e x e m p l a r y . The

provision

of

the

foregoing

article

is,

therefore,

designed

to

ensure that such punishments are not u n d u l y severe, a n d do bear a reasonable relationship to the actual offenses w h i c h have been committed. "Protected persons w h o commit an offence w h i c h is solely intended to h a r m

the O c c u p y i n g Power, b u t w h i c h does not constitute

attempt on the life or limb of members of the o c c u p y i n g

an

forces 1 2 4

or administration or the installations used by them, shall be liable courts under German occupation in World War II on the question of res judicata in regard to cases triable in both types of court, see Ann. Dig., 1919-1942 (Supp. Vol.), pp. 279-282. See also above, p. 244, n. 1x2. 122 Cf., Art. 118. Cf., Art. 1 1 (2), Universal Declaration of Human Rights, adopted by the U.N. General Assembly, Dec. 10, 1948, as follows: "No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed." Human Rights and Genocide (U.S. Dept. of State Pub. 3643, 1949), p. 30. T h e declaration itself, however, does not constitute a statement of legal obligation, but serves only as a common standard to be achieved by all peoples of all nations. This provision of the declaration is incorporated as Art. 7 (1) in the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome, Nov. 4, 1950, by 13 nations (including the United Kingdom, France, the German Federal Republic [i.e., West Germany], Italy, and Turkey), members of the Council for Europe. Art. 7 (2) states: "This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations." By Art. 15, Art. 7 applies equally "in time of war or other public emergency threatening the life of the nation." 45 A.J.I.L. 27-28. 121 This covers cases where the occupying forces may include allies serving under the command of the occupying power. Final Record, IIA, 834, Report of Committee III.

Occupation

248

of

Territory

125

to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. T h e courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period. " T h e penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences 126 were punishable by death under the law of the occupied territory in force before the occupation began. " T h e death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance. "In any case, the death penalty may not be pronounced against a protected person who was under eighteen years of age at the time of the offence" (Article 68). 12 t T h e general purpose of this article conforms with the principle in the preceding article that punishment for offenses against the occupying power and its forces should be proportionate to the offense committed. T h e right to impose the death penalty is restricted to three types of offenses only, instead of being applicable to a wide variety of offenses, in the discretion of the courts, as was generally the previous practice in proclamations issued in occupied territory. For the death penalty to be imposed two conditions must be satisfied. First, the 125 Penalties such as fines are not precluded; U.S. Law 438c; BrM.M.L., Pt. Ill, par. 566, n. 3. 128 "Such offences" refers to all three types of offenses. 127 Cf., this article with Art. 2, Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, cited above, which states: "(1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of the sentence of a court following his conviction for a crime for which this penalty is provided by law. (2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary—(a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection." Art. 2 applies equally "in time of war or other public emergency threatening the life of the nation . . . except in respect of deaths resulting from lawful acts of war" (Art. 15). 45 A.J.I.L. 24-25, 28.

Occupation

of Territory

249

protected persons must be proved guilty of an offense falling within at least one of the three categories: espionage, 128 serious acts of sabotage against the occupant's military installations, or intentional offenses causing the death of one or more persons. Secondly, the offense must have been punishable by death under the law of the occupied territory in force before the occupation began. T h e standard for the death penalty is, therefore, set by the laws which prevailed in the territory before the occupation, and renders the justice dispensed conformable with what is recognized locally as just. In some countries the death penalty does not apply in peace time, but provision is made for its application in war time. If the laws having effect in war time provide the death penalty for an offense coming within the three categories enumerated, then presumably the occupant would also be entitled to apply the death penalty in such a case, because such wartime law would be part of the general law of the occupied territory in force before the occupation began. O n signing the present convention, the United States, the United Kingdom, Canada, New Zealand, and the Netherlands entered reservations in similar terms to the effect that they reserve the right to impose the death penalty in accordance with the provisions of Article 68, paragraph 2, regardless of whether the offenses named there are punishable by death under the law of the occupied territory at the time the occupation begins. 129 In other words, those states reserve the right to apply the death penalty to offenses in the three categories, whether or not such a penalty could have been applied in the territory before the occupation. 1 3 0 Argentina entered a general reservation to Article 68. " I n all cases, the duration of the period during which a protected person accused of an offence is under arrest awaiting trial or punishment shall be deducted from any period of imprisonment awarded (Article 69). 128 It is apparent that the terra "espionage" is here used in its wider sense to include related acts of war treason (see below, pp. 330 f.), and not solely according to the definition of Art. 29, Hague Regulations, 1907, which applies only to acts committed in the zone of operations of a belligerent and not to acts in occupied territory outside the zone of operations. 120 For U.S. reservation, see Genocide Conventions . . . , p. 239. Cf., U.S. Law 438 b. 130 In the discussion of Art. 68, par. 2, at the Diplomatic Conference of Geneva, 1949, a number of delegations "felt that the restriction of the death penalty to cases punishable by the death penalty under the law of the occupied Power at the outbreak of hostilities was illogical in that the question to be dealt with fell under the laws and customs of war and bore no connection with national legislation." Final Record, IIA, 834, Report of Committee III.

85°

Occupation

of

Territory

"Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war. "Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory, except for offences committed after the outbreak of hostilities, or for offences under common law committed before the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time of peace" 1 3 1 (Article 70).

Notwithstanding the first paragraph of this article, New Zealand has reserved the right to take necessary action to ensure the punishment of offenses against the peace and security of mankind. 132 " N o sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial. 133 1X1 T h e second paragraph of this article was explained by the chairman of the committee which drafted the text. T h e provision protects refugees against the government of which they are nationals. A real refugee, i.e., a man who flees his country because he does not like the government, the political system, religion, "or whatever it is," and who does not commit any offense must be protected. On the other hand, two categories of persons who have fled their country may be arrested and deported to their own country to be placed on trial. There is, first, "the man who flees from his country and, after the outbreak of hostilities, commits acts against his country—such as giving propaganda talks on the radio," that is, "the category of traitors." Secondly, there is the man who commits a crime against common law (i.e., "normal" criminal offenses, as opposed to political offenses) before the outbreak of hostilities and flees his country to avoid the consequences of his acts. He may be arrested and deported if the law of the occupied country permits or justifies extradition for this kind of offense in time of peace. T h e condition contained in the last sentence applies only to the second category and not to the first. Final Record, IIB, 480. 132 Geneva Conventions . . . , p. 244. Cf., Art. 10, Universal Declaration of Human Rights, 1948, cited above, as follows: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." Human Rights and Genocide, p. 30. See also The Justice Case, above, TWC, 1046, where the court condemned the trials under the German Night and Fog Decree (above, note 117). Such trials were secret, the accused were often denied the right to introduce evidence, have counsel 01 counsel of their own choice. No indictment was served in many cases and no public record of the cases was kept. In Trial of Susuki Motosuke (1948), Netherlands Temp. Ct.-Martial, Amboina, L.R.T.W.C., XIII, 126, the court convicted the accused for executing without fair trial a Dutch subject who had voluntarily joined the Japanese army and had committed an offense against the Japanese military code. The court held that the execution was not a war crime, but "the common law criminal offense of 'intentional incitement to murder by abuse of authority'." T h e court, therefore, purported to exercise authority over offenses committed by the

Occupation

of

Territory

251

"Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them and shall be brought to trial as rapidly as possible. 134 T h e Protecting Power shall be informed of all proceedings instituted by the Occupying Power against protected persons in respect of charges involving the death penalty or imprisonment for two years or more; it shall be enabled, at any time, to obtain information regarding the state of such proceedings. Furthermore, the Protecting Power shall be entitled, on request, to be furnished with all particulars of these and of any other proceedings instituted by the Occupying Power against protected persons. 135 " T h e notification to the Protecting Power, as provided for in the second paragraph above, shall be sent immediately, and shall in any case reach the Protecting Power three weeks before the date of the first hearing. Unless, at the opening of the trial, evidence is submitted that the provisions of this Article are fully complied with, the trial shall not proceed. T h e notification shall include the following particulars: a) description of the accused; b) place of residence or detention; c) specification of the charge or charges (with mention of the penal provisions under which it is brought); d) designation of the court which will hear the case; e) place and date of the first hearing" (Article 71).

"Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence. "Failing a choice by the accused, the Protecting Power may provide him with an advocate or counsel. When an accused person has to occupying force against a member of its own forces (therefore, technically an "enemy subject") who was at the same time an inhabitant of the occupied territory. m "In cases of arrest, suspicions must be verified by a serious enquiry, and the arrested person given an opportunity to defend himself against the suspicions directed against him. . . . If there is no enquiry, or if it is unnecessarily delayed, or, in general, if the detention is unnecessarily prolonged, there is ground for a claim [against the occupant]." The Chevreau Claim (1931), Franco-British Arbitration, 27 A.J.I.L. at p. 160. Cf. U.S. Law 5506. 136 A national of a neutral or cobelligerent state who is arrested in occupied territory must be given the opportunity to communicate with the consul of his country if he requests it. The Chevreau Claim, above, loc. cit.; Schwarzenberger, I, 291 n. Cf., U.S. Law 550b.

252

Occupation

of

Territory

meet a serious charge and the Protecting Power is not functioning, the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel. "Accused persons shall, unless they freely waive such assistance, be aided by an interpreter, both during preliminary investigation and during the hearing in court. They shall have the right at any time to object to the interpreter and to ask for his replacement" (Article 72). "A convicted person shall have the right of appeal provided for by the laws applied by the court. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so. " T h e penal procedure provided in the present Section 136 [i.e. the penal procedure laid down in the foregoing articles] shall apply, as far as it is applicable, to appeals. Where the laws applied by the Court make no provision for appeals, the convicted person shall have the right to petition against the finding and sentence to the competent authority of the Occupying Power" (Article 73). "Representatives of the Protecting Power shall have the right to attend the trial of any protected person, unless the hearing has, as an exceptional measure, to be held in camera in the interests of the security of the Occupying Power, which shall then notify the Protecting Power. A notification in respect of the date and place of trial shall be sent to the Protecting Power. 137 "Any judgment involving a sentence of death, or imprisonment for two years or more, shall be communicated, with the relevant grounds, as rapidly as possible to the Protecting Power. T h e notification shall contain a reference to the notification made under Article 71, and, in the case of sentences of imprisonment, the name of the place where the sentence is to be served. A record of judgments other than those referred to above shall be kept by the court and shall be open to inspection by representatives of the Protecting Power. Any period allowed for appeal in the case of sentences involving the death penalty, or imprisonment for two years or more shall not run until notification of judgment has been received by the Protecting Power" (Article 74). "In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve. 136 Sec. iii of Part III of the convention. This section is entitled, "Occupied Territories," and comprises Arts. 47-78. 137 So that the protecting power may be aware of trials for lesser offenses besides the more serious offenses for which notification is provided by Art. 71. Final Record, IIA, 835, Report of Committee III.

Occupation

of Territory

253

" N o death sentence shall be carried out before the expiration of a period of at least six months from the date of receipt by the Protecting Power of the notification of the final judgment confirming such death sentence, or of an order denying pardon or reprieve. " T h e six months period of suspension of the death sentence herein prescribed may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying authorities in respect of such death sentences" (Article 75). "Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. 138 T h e y shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country. " T h e y shall receive the medical attention required by their state of health. " T h e y shall also have the right to receive any spiritual assistance which they may require. " W o m e n shall be confined in separate quarters and shall be under the direct supervision of women. "Proper regard shall be paid to the special treatment due to minors. "Protected persons w h o are detained shall have the right to be visited by delegates of the Protecting Power and of the International Committee of the R e d Cross, in accordance with the provisions of Article 143. 139 "Such persons shall have the right to receive at least one relief parcel m o n t h l y " (Article 76). "Protected persons w h o have been accused of offences or convicted by the courts in occupied territory, shall be handed over at the close of the occupation, with the relevant records, to the authorities of the liberated territory" (Article 77). Outside the ordinary legal process, the most stringent security controls which the occupant may levy against the inhabitants are limited by the convention as follows: "If the Occupying Power considers it necessary, for imperative 138

T h i s does not preclude the appearance of convicted persons before the appeal

courts outside the occupied

territory, or the possibility of their receiving

treatment outside the territory. Loc. 139

cit.

A b o v e , p. 195. B u t note Art. 5, pars. 2, 3, above, p. 159.

health

Occupation

254 reasons of

security,

to

take safety measures

of

Territory

concerning

protected

persons, it m a y , at the most, subject them to assigned residence or to internment. "Decisions regarding such assigned residence or internment

shall

be m a d e according to a regular procedure to be prescribed by the O c c u p y i n g Power in accordance w i t h the provisions of the present C o n v e n t i o n . 1 4 0 T h i s procedure shall include the right of appeal for the parties concerned. A p p e a l s shall be decided w i t h the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent b o d y 1 4 1 set u p by the said Power. "Protected

persons m a d e subject to assigned residence a n d

thus

required to leave their homes shall enjoy the f u l l benefit of A r t i c l e 39 of the present C o n v e n t i o n "

(Article 78).

A r t i c l e 3 9 provides for the p a i d e m p l o y m e n t or support of persons subjected to security controls. 1 4 2 T r o o p s of the o c c u p y i n g power will, naturally, not be subjected d u r i n g the period of the occupation to the jurisdiction of the local courts nor will local law, as such, apply to t h e m . 1 4 3 T o do so w o u l d 140

The articles particularly applicable are 41, 42, 43, 68, 78, and 79; see above, pp. 50-51, 247-249, 171-172. 141 U.S. Law 433ft states: " 'Competent bodies' to review the internment or assigned residence of protected persons may be created with advisory functions only, leaving the final decision to a high official of the Government." 143 Above, p. 49. 113 See, for example, In re S.S. Member Ahlbrecht (1947), Special Ct. of Cassation, Holland, Ann. Dig., 1947, Case No. 92 and appended note (After the occupation, local courts of competent jurisdiction may try and punish members of the military and civil services of the enemy for offenses against the laws and customs of war, i.e., international law. The local courts may, after the occupation, try under local law troops and officials of the occupant who, during the occupation, committed crimes in the territory in a nonofficial capacity and also its own nationals who enlisted in the enemy occupation forces). Cf., Schwarzenberger, International Law and Totalitarian Lawlessness, p. 61. In Public Prosecutor v. X. (1940), Supreme Ct. (Appellate Div.), Norway, Ann. Dig., 1919-1942, Case No. 100, it was held during the occupation of Norway, that the troops of the occupying power were, under Norwegian law, entitled to the protection of the Norwegian courts in regard to acts committed outside the actual theater of war or warlike operations, "not only against violation of property, but also against threats, libel and slander, etc." In Kauhlen Case (1920), Ann. Dig., 1919-1922, Case No. 323, which arose out of World War I, the Court of Cassation, Belgium, held that a decree-law issued by the Belgian government while Belgian territory was under German occupation which provided for the punishment of malicious denunciation to the enemy, was applicable to a member of the German army of occupation. In Holdowanski v. Holdowanski (1956), 3 All E.R. 457 (Probate Div., England), it was held that the lex loci can be used for the marriage of occupation troops unless "impossible or objectionable to the conscience." In N. v. Belgian State and Officier de ¡'État Civil of the Commune of Uccle (1949), Civil Ct. of Brussels, Belgium, Ann-

Occupation of Territory

255

be paradoxical, since their status in international law derives from conquest. They are subject to their own internal military law and jurisdiction, and are tried according to their own disciplinary code. Where judicial proceedings are required, they will be tried by courts-martial and not by the military courts set up by the occupant to deal with offenses by the civilian population. 144 However, it is usually necessary that occupation troops should comply with various regulations imposed on the local population by the military administration, for example, regulations concerning traffic control, disposal of army material to civilians, currency, exchange, banking, price-fixing, and other economic matters. Since proclamation law would not apply to the troops, it would be necessary to incorporate such regulations in the military code by some such method as issuing to the troops local military orders corresponding to the proclamation law. Civilians employed by the army or accompanying it could be tried by the military courts of the occupant, as they are subject to the law of the occupied territory. 145 This is the case whatever their nationality, and whether they are recruited inside or outside the territory. It would, however, be inadvisable to try them by the Dig., 1949, Case No. 170, it was held that the marriage in occupied Belgium of a Belgian woman to a German officer by a German military court according to German law was invalid since the occupant was not absolutely prevented from respecting Belgian marriage law. In re ho Dolce (1952), 106 F. Supp. 455 (U.S. Dist. Ct., W.D.N.Y.); 47 A.J.I.L. 150, is an unusual case. There, the Italian government sought the extradition from the United States on charges of homicide and robbery, of a former American soldier who was charged with committing the offenses against an American officer during World War II, while both were members of a U.S. army mission operating in German-occupied territory in northern Italy. At the time of the alleged offenses both the United States and Italy were at war with Germany, and while a state of war still technically existed between Italy and the U.S., hostilities had ceased between them and the former had become a cobelligerent of the latter. T h e request for extradition was denied, the court holding that in view of the German occupation "certain of [the Italian Government's] rights were given up, ceded, severed or abandoned by that sovereign for the time." However, in spite of the refusal, on Nov. 6, 1953, an Italian (Novara) court tried, convicted, and sentenced in absentia the former American soldier and a former American officer on the charge of murdering the American officer, who was in command of them at the time of the alleged offense. At the same time, the court acquitted three Italians charged with participating in the murder (Associated Press dispatch, Nov. 6, 1953, from Italy, published in Los Angeles Times, Nov. 7, 1953). 144 Br.M.M.L., Pt. I l l , par. 522. 146 See, for example, In re Friess and Ronnenberger (1947), Ct. of Cassation (Chambre Criminelle), France, Ann. Dig., 1947, Case No. 80 (German civilian subjects residing in France during the German occupation of World War II, who came to France with the German army of occupation, subject to French law by virtue of their residence on French territory).

256

Occupation

of

Territory

indigenous courts which continue to function. Usually the occupant will have a choice of trying such persons either by court-martial under the military code, or by the military courts of the occupation under local law, including proclamation law. 146 The families of members of the occupation forces, who are civilians accompanying the latter in the occupied territory, may equally be tried under such local law, which in their case would be administered by the military courts.147 Officials of the former administration who are retained in their employment will be tried either by the military or local courts, not by courts-martial.148 Viewing as a whole the legal system operative in an occupied territory, a layer of proclamation law is superimposed on the law existing before the occupation, and both types of law are binding on all courts of the territory, whether they are military courts of the occupant or the indigenous courts of the country. In occupied 146 Cf., United States Military Government v. Coldner (1949), U.S. Mil. Govmt. Ct. of Appeals, U.S. Zone of Germany, Ann. Dig., 1949, Case No. 161 (U.S. civilian in U.S. zone of occupation in Germany, but not accompanying the occupying forces, tried under U.S. Mil. Govmt. ordinance). 147 See, for example, Madsen v. Kinsella (1950), 93 F. Supp. 319 (U.S. Dist. Ct., S.D.W.Va.); 45 A.J.IX. 375; affirmed U.S. Ct. of Appeals, Fourth Circuit (1951), 188 Fed. Rept. 2d 272; affirmed U.S. Supreme Ct. (1952), 343 U.S.' 341. Here, an American civilian citizen, the wife of an American air-force officer, living with her husband in the U.S. occupation zone of Germany at the time of the offense charged (1949), was tried and convicted under the German Criminal Code by a U.S. (military) occupation court in 1950 for the murder of her husband. T h e conviction was upheld by the courts in the United States. Per Moore, D.J.: " W h e n an American citizen (not a member of the A r m e d Forces) enters a foreign country, he becomes amenable to the laws of that country, and is triable by its courts, whose procedure may or may not be in conformity with American concepts of justice and fair p l a y " (93 F. Supp. at p. 323). Per Parker, chief judge, Ct. of Apps., Fourth Circuit: " A n d we think it equally clear that the occupation courts had authority to try appellant for the murder under the law of Germany. It is general law that local criminal law in an occupied area continues to bind civilians unless changed by the occupying power" (188 Fed. Rept. 2d at p. 274). However, the U.S. army field manual now takes the following position: "Military and civilian personnel of the occupying forces and occupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of the local courts of the occupied territory unless expressly made subject thereto by a competent officer of the occupying forces or occupation administration. T h e occupant should see to it that an appropriate system of substantive law applies to such persons and that tribunals are in existence to deal with civil litigation to which they are parties and with offenses committed by them" (US. Law 374). 148 In Landwehr v. Director of Prosecutions (1950), Control Commission Ct. of Appeal, Germany (Brit. Zone), Ann. Dig., 1950, Case No. 132, a member of the legislative assembly of the occupied territory claimed immunity from criminal proceedings in the occupant's courts as such a member. Held, he had no such immunity in the occupant's courts.

Occupation

of Territory

257

colonial territories, the result may be a legal system of some complexity, combining in effect as many as three different systems of law. T h i s occurred in the Italian African colonies occupied during W o r l d W a r II, where there existed side by side the proclamation law of the Allied occupation forces, the Italian law of the displaced colonial administration, and the native law on which the Italian law itself had been superimposed and for which it made provision. T h e courts under the occupation correspond to the types of law which are in force. First, there are the military courts of the occupant. Under Anglo-American practice these usually consist of three classes. T h e r e are general military courts, with authority to impose any lawful sentence including death; intermediate military courts, with authority to impose any lawful sentence except death, imprisonment in excess of ten years, or a fine in excess of 10,000 dollars; summary military courts, with authority to impose any lawful sentence except death, imprisonment in excess of one year, or a fine in excess of 1,000 dollars. General military courts are usually composed of five members, intermediate military courts of three, and summary military courts of one member. However, the number of members sitting on a court may be varied where there is a shortage of personnel. It is advisable that one member of each court should be a lawyer or have had legal training, and after the hostilities stage of the occupation civilian lawyers on duty with the occupying administration often serve on such courts. 149 However, in outlying and sparsely populated areas it is often necessary to confer summary court jurisdiction on the local military-government administrative officer in order that large numbers of petty cases may be dealt with expeditiously. T h e military courts try civilian offenders against the proclamations, ordinances, and regulations issued by the occupying forces, as well as those cases where it is considered inadvisable that the indigenous courts should take jurisdiction, such as trial of nationals of the occupying power and of its allies. As indicated earlier, 150 military tribunals will not normally try local inhabitants in territory controlled by a friendly government unless required by military necessity. 1 5 1 A l t h o u g h military occupation courts may be given jurisdiction for war crimes of the kind that were tried by the Nuremberg T r i b u n a l after W o r l d W a r II, including crimes against peace, violations of 119 160 151

U.S. Civil Affairs Above, p. 236. U.S. Civil Affairs

Mil.

Govmt.,

pp. 65, 66.

Mil.

Govmt.,

p. 63.

258

Occupation

of

Territory

the laws and customs of war, and crimes against humanity, it is usually considered advisable to establish special courts for the trial of persons charged with such crimes. 152 T h e second kind of courts in the occupied territory are the indigenous courts of the country. Provided the circumstances of the occupation have not interrupted the efficient operation of those courts, the greater part of criminal justice in the territory will be administered by them, comprising those violations of its laws which do not affect the security or interest of the occupying forces. 153 T h e y may also try certain offenses against proclamation law, at the discretion of the occupant, where local judges could sit upon such offenses without conscientious objection. 1 5 4 In colonial territories, in addition to the courts of the former ruling power there may be native courts staffed by native personnel. These courts usually exercise a limited jurisdiction over the native population. Under the occupation they would continue to exercise their former functions, and if the judicial machinery of the previous colonial administration was extensively disrupted by the events leading to the occupation (if, for example, the former judges and court officials had fled) such native courts could, with an extended jurisdiction, fill the gap. It is the duty of the occupant to establish courts of his own where the courts which formerly existed in the country cease to exist. 155 In such circumstances, the military courts of the occupant would have to undertake to enforce not only the proclamation law, but also the preexisting law of the territory. 156 T h i s is a situation which the ™>Ibid., p. 64. " " S e e , for example, Re

C.

(1942), C t . of A p p e a l of Brussels, Belgium, Ann.

Dig.,

' 9 4 3 - ' 9 4 5 ' Case N o . 159. 164

A contravention of a l a w f u l order of the occupant may be recognized b y the

local courts as constituting circumstances aggravating a crime committed the preexisting law of the territory. Andriange C t . of Cassation, Belgium, Ann.

Dig.,

v. Algoret:

1943-194;,

against

Case of Delhaxhe

Case N o . 160, attempted

(1944), burglary

in premises blacked out under regulations of the occupant. 165

T h e same power may

be exercised regarding courts which

unfairly constituted." U.S. Law u®

Br.M.M.L.,

"are

corrupt

Pt. I l l , par. 525; Fauchille, II, par. 1169; Cf., Endricci

mayer

(1946),

"where

it

was

Ct.

of

held

Appeal that

or

3736. of

courts

Trent,

Italy,

set

by

up

Ann.

the

Dig.,

German

1946,

v.

Case

occupying

Eisen-

No.

152,

authorities

in the Italian territory of Bolzano w h i c h were staffed b y G e r m a n judges and applied Italian law were courts l a w f u l l y established according to international L.

v. N.

(Bulgarian

Greece, Ann.

Dig.,

ritory occupied

Occupation

of

Greece)

(1947),

Ct.

of

Appeal

of

law";

Thrace,

1947, Case N o . 110 (Courts staffed b y Bulgarians in Greek ter-

by Bulgaria). However, in

C t . of Cassation, U n i t e d

Penal

the case of

Sections, 49 A.J.I.L.

Condarelli

(1952),

Italian

262, effect was denied

to

a

decision of the C t . of A p p e a l of Asmara, Eritrea, created b y the British occupation

Occupation

of

Territory

259

occupant would normally attempt to avoid except as a last resort, since it would mean undertaking a task and allotting personnel for a purpose remote from his essential war effort. T h e type of procedure which the military courts will employ for their proceedings is mainly within the discretion of the occupant. In British occupation courts the practice has been to use an adapted form of English criminal procedure. On the other hand, the United States military-government manual states: Experience has demonstrated that in administering justice in an occupied area, it is desirable to follow forms of judicial procedure which are generally similar to the forms of procedure to which the people are accustomed. T h u s , in Europe, the rules governing procedure in military-government courts incorporated features of continental practice. T h e rules of evidence employed permit the introduction of any evidence which is material or relevant to the issues. T h e limitation imposed by the Constitution of the United States upon the trial of criminal cases in this country do not apply to military government tribunals in occupied areas; and the only limitations which need be considered in preparing procedural rules for such courts are that the accused should be assured of a fair hearing, that he should receive notice of the charges in advance of trial, be given an opportunity to prepare his defense, be granted the right of counsel, have the right to call witnesses in his own defense, and be permitted to cross-examine witnesses produced by the prosecution. Adequate provision should be made for the review or administrative examination of cases tried in military government tribunals by Civil Affairs/Military Government staff of the military governor. 157

authorities in that Italian colony, on the ground that the creation of the court was in excess of the powers of a belligerent occupant. Cf., Case of Solazzi and Pace (1953), Ct. of Cassation (Penal), Italy, 4g A.J.I.L. 423. In Nicolo v. Creni (1952), Ct. of Cassation, Italy, 48 A.J.IZ,. 166, although the T r e a t y of Peace between the Allied and Associated Powers and Italy, in force Sept. 15, 1947, provides in Art. 23 that Italy renounce all right and title to Italian territorial possessions in Africa, the court held it had jurisdiction to hear an appeal taken in 1950 from a decision of the Court of Appeals of T r i p o l i , Libya, rendered Nov. 25, 1949, since the Italian judicial organs were still operative temporarily in L i b y a and their decisions retained the character of Italian judicial actions and, as such, subject to review by the Italian Court of Cassation. "For purposes of the power of a higher court to review, the important thing is not the fate [of] the territory [where] a decision was rendered, b u t the nationality of this decision." Cf., Sarris v. Ahmed Ubed (1950), Italian Ct. of Cassation, United Penal Sections, 49 A.JJ.L. 268-269, where the court held it h a d jurisdiction to hear an appeal from an Eritrean court. " D u r i n g the transitory regime the excolonies remained under foreign occupation, and the powers of the occupants did not differ from those of belligerent occupants." Followed in Farrugia v. Nuova Compagnia Generate Autolinee (1951), Italian Ct. of Cassation, Civil Section III, 49 A.JJ.L. 269 (Appeal from Ct. of Appeals of Tripoli). B u t Italian judicial jurisdiction in Eritrea was held to be terminated as of Sept. 15, 1952, when the Ethiopia-Eritrea federation was proclaimed. Passi v. Sonzogno (1953), Italian Ct. of Cassation, United Sections, 49 A.JJ.L. 584. m U.S. Civil Affairs Mil. Govmt., p. 66.

260

Occupation

of

Territory

T h e rules as to procedure laid down by Geneva Convention IV, 1949, have been noted earlier. 158 LOCAL OFFICIALS IN OCCUPIED TERRITORY

Local officials in territory occupied by a hostile power are beset by the quandary of not desiring to aid the war effort of that power and yet at the same time of not harming the welfare of their own fellow nationals by a wholesale abandonment of their posts which would completely dislocate the machinery of government. In resolving this problem it is often found that, while the political heads of the occupied area may take refuge in flight, local officials usually continue at their duties and so ensure without serious interruption at least the essential services necessary for the health and safety of the population. Sufficient officials should in fact remain on hand to ensure the safety of life and property in the interim period, until the occupant is able to take over. Such would include judges, magistrates, police, and sanitary services. On the side of the occupant, it is in his interest that he should be able to take over the machinery of government in efficient working order. He will, therefore, encourage most officials to remain at their duties, at any rate until he is able to make changes without impairing the effective administration of the area. T h e occupying power has the right to remove public officials from their posts. This is specifically recognized by Article 54 of Geneva Convention IV, 1949. It also has the corollary right to install officials. On the other hand, should public officials and judges abstain from fulfilling their functions for reasons of conscience, Article 54 bars the occupant from altering their status or in any way applying sanctions or measures of coercion or discrimination against them. It may simply remove them from office. It is not a hostile act for an official to resign after having taken service under the occupant or having continued in it. 169 However, there are circumstances where the occupant, forced by military necessity, may compel officials to exercise their functions even against their will. 160 Under provisions of Geneva Convention IV, 1949, and the Hague Regulations, 1907,161 enemy officials may be Arts. 71-75, above, p p . 250-253. Br.MM.L., chap, xiv, par. 400; ibid., Pt. I l l , par. 582. 160 " I t m i g h t be necessary for certain of these officials or judges to be compulsorily employed, to carry out the duties which are provided for in the second paragraph of Article [51]." Final Record, I I A , 829, R e p o r t of C o m m i t t e e III. 161 Arts. 51, 54, Geneva Conv. IV, 1949; Arts. 23, 52, H a g u e Regulations, 1907. 1Ea 159

Occupation

of Territory

261

compelled to work only if this is necessary for the needs of the army of occupation, for the public-utility services, or for the feeding, sheltering, clothing, transportation, or health of the p o p u l a t i o n of the o c c u p i e d country. T h e y may not be compelled to undertake any work w h i c h w o u l d oblige them to take part in military operations. 1 6 2 T h e w o r k shall be carried o u t only in the occupied territory where their services have been requisitioned, a n d they shall, as far as possible, be kept in their usual places of employment. T h e general policy of the occupant toward officials in the territory will, of course, be determined, under the limitations of international law, by his military purposes and war objectives. Offices a n d departments w h i c h he considers unnecessary or detrimental to his administration m a y be suspended or discontinued; new ones may be created. Existing legislative bodies will usually be suspended in enemy territory since supreme legislative power is vested in the military governor or administrator o n behalf of the occupant. H i g h - r a n k i n g political officers a n d other administrators of the enemy w i l l usually be removed f r o m office. Such w o u l d include the n o m i n a l a n d actual heads of the national government, cabinet ministers, and heads of the principal political divisions. Officials w h o are considered unreliable or untrustworthy will be discharged, as well as those w h o d o not p e r f o r m their duties satisfactorily. Subordinate officials and those in local g o v e r n m e n t will usually be retained in their posts. 1 6 3 T h e o c c u p a n t need n o t i n q u i r e into the credentials of officials f o u n d in authority at the m o m e n t of occupation. 1 6 4 C o m p l e t e disruption of the governmental machinery is more likely in colonial territories than in metropolitan areas. W h e r e a colonial administration has c o m m a n d e d little support f r o m the native population, its collapse may render the position of its officials u n t e n a b l e so that most of them may take to flight before the invaders. I n such circumstances, the o c c u p a n t will have to r e b u i l d the administration, staffing it w i t h his o w n officers and suitable personnel f r o m the local p o p u l a t i o n . 182 T h e primary duty of a public servant is toward his country and he "must refrain from exercising his functions if the occupant should attempt to impose on him tasks which are incompatible with [such duty]." Schillings v. Administration des Finances (1948), Belgian Ct. of Cassation, Ann. Dig., 1948, Case No. 173. Public servants are required "not only to maintain public administration and to prevent injury to Belgian nationals, but, in particular, to do nothing which could prejudice the activities of patriots engaged in the struggle against the enemy." Schwind v. Belgian State (1948), Ct. of Cassation, Belgium, cited in Ann. Dig., 1948, Case No. 173. 103 104

See generally on these matters, U.S. Civil Affairs Mil. Br.M.M.L., chap, xiv, par. 399.

Govmt.,

pp. 11-13.

262

Occupation

of

Territory

In general, however, the officers of the occupant's administration will confine themselves to supervisory roles in government rather than take over the actual operation of the machinery of government. Such a policy is more satisfactory to both the occupant and the occupied. As far as practicable, therefore, the administration personnel will usually deal with the civilian population of the occupied territory through the local officials it has retained or appointed. Replacements for those officials will in general be drawn from the local population. It is forbidden to force the inhabitants of occupied territory to swear allegiance to the hostile power (Article 45, Hague Regulations, 1907), and this prohibition applies equally to the local officials who continue in office or are appointed by the occupant. However, those officials may be required to take an oath to perform their official duties conscientiously, on pain of dismissal. But since even this oath may arouse objection among the officials and the inhabitants, it will usually be advisable not to require an oath but to ask for an assurance that they will loyally fulfill the service confided to them and will place no obstacle in the way of the occupying force. 165 T h e occupant may not compel local officials to carry on their functions in his name. 166 Usually the local (indigenous) courts will conduct their proceedings in the name of the legitimate sovereign, but in a dispute as to where the legitimate sovereignty lies it would be correct for them to use a neutral formula such as "In the name of the L a w " when pronouncing judgments. 167 Apart from any question of oaths, local officials owe strict obedience to the occupant and are accountable under the law of the territory for their actions. Acts to the disadvantage or damage of the occupying army may be punished under proclamation law, and offenses against the ordinary law of the land under the provisions of the ordinary law. In addition to the regular legal process, the occupying power may, 1 131

Article 5 of Hague Convention I X , 1907, did specify the sign to be placed on protected buildings and places in case of naval bombardment. According to this provision: "It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large stiff rectangular panels divided diagonally into two painted triangular portions, the upper portion black, the lower portion white." In view of the fact that the Hague Regulations do not prescribe a specific symbol as a sign of protection from bombardment, in cases other than those governed by the Geneva Conventions and the Hague Convention for the Protection of Cultural Property, 1954, the buildings and places listed in Article 27 of the regulations may be indicated by the sign specified for naval bombardment. 1 3 3 T h i s standpoint was taken in Article 25 of the Hague Air Warfare Rules, 1923, as follows: " T h e marks . . . shall be, in the case of buildings protected under the Geneva Convention, the red cross on a white ground, and in the case of other protected buildings, a large rectangular panel divided diagonally into two pointed [sic] triangular portions, one black and the other white." T h e article specified that the use of such marks to indicate other buildings, objects, or places than those enumerated is to be deemed an act of perfidy. T h e marks are required to be visible by day to aircraft, and "a belligerent w h o desires to secure by night the protection for the hospitals and other privileged buildings above mentioned must take the necessary measures to render the special signs referred to sufficiently visible." 1 3 4 T h e question of protection from night bombardment poses Art. Art. 133 U.S. 134 Art. 131

132

23. 14. Law 466; see also Br.M.M.L., chap, xiv, par. 302 and n. 3. 25, Hague Rules of Air Warfare, 1923.

348

Metkàds,

Instruments

of

Warfare

particular difficulty, especially in view of the practice of "blackingo u t " territory liable to attack. T h e illumination of protected places will obviously aid in the identification of targets that may be located in the vicinity, yet no illumination at all will expose such places to damage. Identification of a target by radar also poses difficulties. 135 Zones of protection around historical monuments, established under Article 26 of the H a g u e A i r Warfare Rules, 1923, are identified by marks fixed by the state concerned and notified to other powers. T h e marks on the monuments themselves must be those laid down by Article 25 of the same rules, as indicated above. T h e marks should be clearly visible from aircraft by day or night. Under the Roerich pact, buildings and objects protected by that agreement may be identified by a flag consisting of a red circle with a triple red sphere in the circle on a white background. T h e H a g u e Convention for the Protection of Cultural Property in the Event of A r m e d Conflict, 1954, provides that cultural property under special protection by the convention shall be marked with a distinctive emblem in the form of a shield, pointed below, per saltire blue and white (i.e., a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royalblue triangle above the square, the space on either side being taken u p by a white triangle—Articles 10 and 16. Repeated three times in a triangular formation (one shield below), the distinctive emblem shall identify: (a) immovable cultural property under special protection; 1 3 6 (b) the transport of cultural property under the conditions specified in Articles 12 and 13 of the convention; (c) improvised refuges for cultural property under the conditions detailed in Article 11 of the convention regulations—Articles 10 and 17 (i). 13 ? Used alone, the distinctive emblem identifies, under Article 17 (2): 13E In the discussion on the protection of hospital ships at the Diplomatic Conference of Geneva, 1949, a United Kingdom delegate stated: "I am told that attack by craft on other craft is made by means of radar picking up the target, and for radar no markings on a ship will give any warning at all of its character." Final Record, IIB, 491. 188 T h e distinctive emblem may not be placed on any immovable property unless at the same time there is displayed an authorization duly dated and signed by the competent authority of the party to the convention—Art. 17 (4). ^ T h e placing of the emblem and its degree of visibility are left to the discretion of each party. It shall, however, be clearly visible in daylight from the air as well as from the ground. From the ground it shall be visible (a) at regular intervals sufficient to indicate clearly the perimeter of a center containing monuments under special protection; (b) at the entrance to other immovable cultural property under special protection—Art. so, Regulations.

Methods,

Instruments

of Warfare

349

(a) cultural property not under special protection; (b) the persons responsible for duties of control (see Articles 3 to 8 of the convention regulations) and the personnel engaged in the protection of cultural property. Such persons may wear an armlet bearing the distinctive emblem, issued and stamped by the competent authorities—Article 21 (1), Regulations—and shall carry the special identity card mentioned below—Article 21 (2), Regulations; (c) the identity cards mentioned in Article 21 of the Regulations. Parties to the present convention who are also parties to Hague Convention I X , 1907, or to the Roerich pact, 1935, shall substitute the emblem of the convention for those of the other two conventions, 138 in cases covered by the present convention—Article 36 (1). CONDUCT OF A SIEGE

139

Before the conclusion of Geneva Convention IV, 1949, it was asserted 140 that there was no rule of law which compelled the commander of an investing force to allow all noncombatants, including women, children, aged, sick, wounded, subjects of neutral powers, or temporary residents, to leave the besieged locality, even when a bombardment was about to begin. Whether or not they would be permitted to leave was deemed to be within the discretion of the commander, w h o could fix the conditions. Refusal to allow noncombatants to leave and making them endure the hardships and privations of the combatants, was considered a means of exercising pressure on the authorities to surrender. 1 4 1 T h e position in this respect has now been modified by Article 17 of Geneva Convention IV, 1949, which states: " T h e Parties to the conflict shall endeavor to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas." T h e r e appears to be little reason why it Above. Fauchille, II, pars. 1092, 1093, draws a distinction between blockade and siege. Blockade is characterized as the investment of a place and the severance of all communications between it and the outside, in order to compel its surrender t h r o u g h lack of supplies a n d food, whereas siege, w h i l e also an investment, is c o m b i n e d with attacks and siege works so as to enable the place to be taken by assault, w i t h out w a i t i n g for the defenders to surrender by reason of famine. 140 U.S. Rules 51; Br.M.M.L., chap, xiv, par. 125. Surprisingly, in repeating this assertion, Br.MM.L., Pt. I l l , par. 292, makes no m e n t i o n of Art. 17, Geneva Conv. I V , 1949. 188

189

la

Br.M.M.L., chap, xiv, par. 125.

350

Methods,

Instruments

of

Warfare

should not be possible to conclude such local agreements in most cases, because the provision certainly withdraws from the discretion of a commander any right to use the presence of the wounded, sick, and others enumerated, or the absence of medical and religious care, in order to bring pressure for surrender. O n the contrary, it is his duty to agree to the removal of such people and the passage of such help, if that is at all possible. Further, Article 23 of the same convention requires free passage for the consignments specified there, but subject to the conditions laid down. 1 4 2 Neutrals and temporary residents may still be denied permission to leave the besieged area, b u t the diplomatic agents of a neutral power, because of personal immunity, should not be prevented from leaving before hostilities begin. Consular officers of a neutral power are probably also entitled to the same privilege of withdrawing. However, permission to leave cannot be claimed by either category while hostilities are in progress, although they should be allowed to depart by the besieging commander as soon as circumstances allow it. If they remain voluntarily, they must undergo the same treatment as the other inhabitants. 1 4 3 Persons w h o may be living in a zone between the besieging and besieged forces are treated as inhabitants of the besieged area. If circumstances and conditions allow, the besieging commander should allow them to withdraw within the lines of the besieged force. 1 4 4 Private persons attempting to leave or enter a besieged place without having obtained the necessary permission are liable to be fired on. T h e y may be sent back, or detained and tried as suspected persons. T h e besieging force commander has the right, except to the extent it is now modified by Article 17 of Geneva Convention IV, 1949, to forbid all communication between the invested locality and the outside world. It is uncertain, however, whether this applies also to communications from diplomatic envoys of neutral powers to their governments. Where the besieged commander attempts to expel noncombatants from within his lines to conserve his resources, it is considered a lawful, although extreme, measure for the besiegers to drive them back to hasten the surrender. 1 4 5 Further, subject to agreement, it is not 142 For the terms of Article 23, see above, pp. 165-166. See also U.S. Law 44 for the modifications introduced by Arts. 17 and 23. 143 U.S. Law 44b; Br.M.M.L., Pt. I l l , par. 293. 144 O r elsewhere out of the battle area. BrMM.L., Pt. I l l , par. 294. 146 Br.M.M.L., Pt. I l l , par. 2g6; U.S. Law 44a; see also The High Command Case (United States v. von Leeb, et al.) (1948), U.S. Mil. T r i b . , Nuremberg, L.R.T.W.C.j X I I , at p. 84, judgment on von Leeb.

Methods,

Instruments

of Warfare

351

necessary to cease or relax fire because women and children are sent out of the lines in order to get them to a place of safety, or to seek pity, but fire must not be intentionally opened in their direction. 1 4 6 However, as stated earlier, it is the duty of an investing commander to endeavor to conclude agreements for the removal from besieged or encircled areas of wounded, sick, infirm, the aged, children, and maternity cases. 147 He should not, therefore, oppose the removal of these for the deliberate purpose of bringing pressure on the enemy to surrender. " T h e giving over to pillage of a town or place, even when taken by assault, is forbidden" (Article 28, Hague Regulations, 1907). Pillage in war is forbidden under all circumstances, whether in the heat of battle or whether committed with more cold-blooded deliberation. T h e r e are various injunctions against pillage in the laws of war. 1 4 8 AIR

WARFARE

N o authoritative body of rules exists to regulate air warfare in the same manner that the Hague Regulations apply to land warfare. T h e necessity for such a body of rules has been seen for a long time, and in consequence of a resolution of the Washington Conference on the Limitation of Armaments of 1921-1922 1 4 9 a commission of jurists was appointed to consider the problem. T h i s commission met at T h e Hague and between December, 1922, and February, 1923, drafted a set of rules. T h e commission consisted of delegates of the British Empire, the United States, France, Italy, Japan, and the Netherlands, but the draft code was not even adopted by the limited number of states whose delegates sat on the commission. 150 T h e code, which is known BrM.M.L., Pt. I l l , par. 297; U.S. Rules 56. Art. 17, Geneva Conv. IV, 1949. 148 See, for example, Art. 46, Hague Regulations, 1907; Arts. 16, 33, Geneva Conv. IV, 1949; Art. 7, Hague Conv. I X , 1907. 149 T h e resolution was adopted by the parties to the Washington Conference, namely, the United States, the British Empire, France, Italy, and Japan, who engaged to constitute a commission to consider (1) whether existing rules of international law adequately covered "new methods of attack or defense resulting from the introduction or development, since T h e Hague Conference of 1907, of new agencies of warfare"; (2) if they did not, "what changes in the existing rules" ought in consequence to be adopted as part of the laws of nations. It was later agreed between the parties substantially to confine the work of the commission to the two subjects of aircraft and radio. Moore, "Rules of Warfare: Aircraft and Radio," International Law and Some Current Illusions, pp. 185-186. 160 Upon particular occasions some governments have announced their intention to act in accordance with the provisions of the draft code, or that they have been operating under those provisions. See Oppenheim, II, 409, 413; Hackworth, VI, 257. 146

117

Methods,

352

Instruments

of

Warfare

as the Hague Rules of A i r Warfare, 1923, has, therefore, no binding authority in international law, but since it constitutes the chief existing guide to the rules of air warfare, it has strong persuasive authority. T h e same commission also drafted the Hague Rules for the Control of Radio in T i m e of War, 1923. T h i s code did not gain acceptance either by the nations represented on the commission or by other nations. These rules are, therefore, not binding. 1 5 1 However, although there is no authoritative code which has special applicability to air warfare, this form of warfare is, in effect, only a particular means of conducting hostilities, and as such is subject to the general rules of warfare as they exist today. It cannot be alleged that belligerents possess complete freedom of action in air warfare. Article 62 of the Hague Rules of Air Warfare, 1923, expressed the general legal position as follows: E x c e p t in so far as special rules are here laid down, and except also so far as the provisions of C h a p t e r V I I 1 5 2 of these R u l e s or international conventions that

maritime

law and

procedure

are applicable,

aircraft personnel

indicate

engaged

in

hostilities come under the laws of war and neutrality applicable to land troops in virtue of the custom and practice of international law and of various declarations and conventions to w h i c h the states concerned are parties.

A n analogy may be drawn in this respect between the law governing aerial warfare and the law of maritime warfare. Just as later the nations were unable to reach binding agreement on a body of rules applicable to air warfare, so the powers participating in the Hague Conference of 1907 failed to adopt a general convention covering the rules of martime warfare. In the absence of a general code for the conduct of sea warfare corresponding to the Hague Regulations, the powers agreed in the Final Act 1 6 3 of the International Peace Conference at T h e Hague, 1907, that the principles of the land warfare rules should be applied as far as possible to sea warfare. Illustrating the uncertainty and lack of definition in relation to the rules of air warfare is the fact that no charges concerning air warfare, including indiscriminate air bombardment, were brought against the accused at the Nuremberg T r i a l of the major German war criminals, and the tribunal made no rulings on air warfare. Further, " N o records of trials in which allegations were made of the illegal conduct of air 141

T h e "General R e p o r t " of the Commission of Jurists w h i c h m e t at the H a g u e ,

1922-1923, is set out in Moore, op. cit., pp. 210-288. T h e report is dated Feb. 19, 1923. Part I contains the rules relating to radio; Part II, the rules of aerial warfare. Moore served as president of the commission. 162I.e.,

Arts. 49-62.

Fourth "Voeu" 69.

of the Final A c t . Higgins, The

Hague

Peace

Conferences,

p.

Methods,

Instruments

of Warfare

353

warfare have been brought to the notice of the United Nations W a r Crimes Commission." 1 5 4 In the present work air warfare is only discussed in relation to the law of land warfare. However, for convenience of reference the Hague Rules of A i r Warfare, 1923, are added in an appendix. 1 6 5

INSTRUMENTS

OF

WARFARE

T H E GENERAL PRINCIPLE

It has already been pointed out that belligerents do not have an unlimited right to choose the means of i n j u r i n g the enemy. 1 5 6 T h e limitation of weapons is governed by the principle set forth in the Declaration of St. Petersburg, 1868, that the only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy; that for this purpose it is sufficient to disable the greatest possible number of men; and that this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable. 1 5 7 T h i s principle has found expression in a number of special conventions relating to particular weapons, as well as in the H a g u e Regulations themselves. Article 23 (e) of the Hague Regulations, 1907, expressed the principle as a general rule of war in the following terms: " I n addition to the prohibitions provided by the special Conventions, it is particularly forbidden to employ arms, projectiles, or material calculated to cause unnecessary suffering." Examples of weapons and missiles prohibited under the general rule are poison and poisoned weapons, 1 5 8 lances with barbed heads, irregularly shaped bullets, projectiles filled with broken glass, the scoring of the surface of bullets, the filing off of the end of their hard case, the smearing on them of any substance likely to inflame a wound, 1 5 9 and the use of chain shot, crossbar shot, red-hot balls, and the like, in cannons. 190 O n the other hand it is stated that the pro164L.R.T.W.C., XV, 110, which also states: "It should be added however that the 'deliberate bombardment of undefended places' is declared a war crime by the Australian, Netherlands and Chinese laws." ^ A p p e n d i x VI, below. " " A r t . 23, Hague Regulations, 1907. 157 Above, pp. 315 f. ^Specifically prohibited by Art. 23 (a), Hague Regulations, 1907. Br.MM.L., chap, xiv, par. 42; U.S. Rules 34. 100 Oppenheim, II, 272; Fauchille, II, par. 1082.

354

Methods,

Instruments

of

Warfare

hibition is not intended to apply to the use of explosives contained in artillery projectiles, mines, rockets, aerial torpedoes, or hand grenades. 161 In World War I, Germany protested the use of shotguns by American troops, on the contention that such arms and ammunition were inhumane. T h e protest was based on Article 23 (e) of the Hague Regulations. T h e United States rejected the complaint. 162 A British and French viewpoint appears to admit the use of small shot, at any rate by irregular troops raised in haste to oppose an invader, in default of regulation ammunition. T h e same opinion allows the use of "cutting tools which are available in the country," in default of bayonets in the same circumstances; although saws and tools of a like nature are rejected as weapons on the ground that they would cause unnecessary suffering. 163 THE

SPECIAL

CONVENTIONS

T h e special conventions referred to in Article 23 of the Hague Regulations consist of five international declarations which prohibit the use of specified weapons of war. One of these, Hague Declaration XIV, 1907, on the discharge of projectiles from balloons, is today a complete nullity, as has been indicated. 164 T h e other declarations, although by their terms binding only between contracting powers, are so universally recognized that, like the Hague Regulations, 1907, they must be regarded as binding the community of nations independently of treaty obligation. 165 T h e four declarations are the Declaration of St. Petersburg, 1868, the Hague Declaration Respecting Expanding Bullets, 1899, the Hague Declaration Respecting Asphyxiating Gases, 1899, and the Geneva Gas Protocol, 1925. T h e Declaration of St. Petersburg, 1868, prohibits the employment by military and naval troops of any projectile weighing less than 400 grams (approximately 14 ounces), which is either explosive or charged with fulminating or inflammable substances. In air warfare, however, free use has been made of incendiary bullets during both Br.MM.L., chap, xiv, par. 42; U.S. Rules 34; U.S. Law 34b. Fcnwick, p. 558; Spaight, Air Power and War Rights, p. 197; Hackworth, VI, 271-272. 183 BrM.M.L., chap, xiv, par. 42 n., citing the French Manual, 1893, p. 14. 164 Above, p. 332. iac See Spaight, op. cit., p. 198, for this view on the 1868 and 1899 Declarations, and the Hague Regulations, 1907; and Nuremberg Judgment, p. 248, for a similar view on the Hague Regulations, 1907. 161 1M

Methods,

Instruments

of Warfare

355

world wars, and while the use of explosive bullets was rarer in W o r l d W a r I, in W o r l d W a r II they too were freely used. 166 T h e legal position today with regard to the employment of such ammunition by or against aircraft appears to be that contained in the Hague Air Warfare Rules, 1923, which states: " T h e use of tracer, incendiary, or explosive projectiles by or against aircraft is not prohibited. T h i s provision applies equally to States which are parties to the Declaration of St. Petersburg, 1868, and to those which are not" (Article 18). 167 T h e "tracer" bullet should be distinguished from the other two types of bullet, since it cannot be considered an infringement of either the Declaration of St. Petersburg or of the later Hague Declaration, 1899, on expanding bullets. 168 Its purpose is to enable the firer to see the path "traced" by his bullet and so correct his marksmanship. It is not intended to operate as an incendiary bullet, and, except for the illumination it gives off, ordinarily differs in no way in its effect from the standard type of machine-gun bullet. T h e H a g u e declaration on expanding bullets prohibited "the use of bullets which expand or flatten easily in the human body, such as bullets w i t h a hard envelope which does not entirely cover the core, or is pierced with incisions." These bullets are generally known as " d u m d u m " 1 6 9 bullets. T h e H a g u e Declaration Respecting Asphyxiating Gases, i8gg, prohibited "the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases." T h i s prohibition obviously applied only to a particular use of such gases, namely from projectiles; and on a strict interpretation of the declaration it could be argued that projectiles emitting gases which had other purposes than the diffusion of harmful gases did not come within its scope, nor did gases released into the wind from containers. W o r l d W a r I saw the widespread use of poison gas by both sides, after its initial employment by Germany. Included in the list of war crimes prepared by the 1919 Commission on the Responsibility of the Authors of the W a r and on Enforcement of Penalties, constituted by the Allied Powers at the preliminary peace conference in Paris, 1919, was "(26) Use of deleterious and asphyxiating gases." 1 7 0 Article 171 of the T r e a t y of Versailles, 1919, stated: " T h e use of asphyxiating, op. cit., pp. 208-213. See also Oppenheim, II, 410-411; BrM.M.L., Pt. I l l , par. 109, n. 1. i e s Spaight, op. cit., pp. 205-206. 169 A f t e r the British arsenal in India, near Calcutta, where they were first made. Fenwick, p. 558. 1 6 0 Spaight,

im

1,0

14 A.J.I.L. 115.

Methods,

356

Instruments

of

Warfare

poisonous or other gases a n d all a n a l o g o u s liquids, materials or devices b e i n g p r o h i b i t e d , their m a n u f a c t u r e a n d i m p o r t a t i o n are strictly f o r b i d d e n in G e r m a n y . " A

similar provision w a s c o n t a i n e d in other

peace treaties w h i c h c o n c l u d e d W o r l d W a r I , 1 7 1 a n d in the T r e a t y of B e r l i n , 1 9 2 1 , b e t w e e n the U n i t e d States a n d G e r m a n y . Following

the conclusion of W o r l d W a r

I further

consideration

was g i v e n to p r o h i b i t i n g this f o r m of w a r f a r e . A t the

Washington

C o n f e r e n c e of 1 9 2 1 — 1 9 2 2 , a treaty w a s signed o n F e b r u a r y 6, 1 9 2 2 , b y the U n i t e d States, the B r i t i s h E m p i r e , F r a n c e , Italy, a n d J a p a n cont a i n i n g a provision ( A r t i c l e V ) p r o h i b i t i n g " t h e use in w a r of a s p h y x i ating, poisonous or other gases, a n d all a n a l o g o u s liquids, materials, or devices."

172

This

treaty n e v e r c a m e i n t o effect because of

non-

ratification by F r a n c e . I n 1 9 2 5 , h o w e v e r , the P r o t o c o l f o r the P r o h i b i t i o n of the U s e in W a r of A s p h y x i a t i n g , Poisonous or other Gases, a n d of B a c t e r i o l o g i c a l M e t h o d s of W a r f a r e was signed at G e n e v a . T h i s protocol n o t o n l y p r o h i b i t e d the use of gases in w a r in terms practically identical those used in the W a s h i n g t o n treaty, b u t e x t e n d e d the

to

prohibition

to bacteriological m e t h o d s of w a r f a r e . T h e protocol stated: T h e undersigned Plenipotentiaries, in the name of their respective Governments: Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world; and Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and T o the end that this prohibition shall be universally accepted as part of International Law, binding alike the conscience and practice of nations; Declare: That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration. T h e High Contracting Parties will exert every effort to induce other States to accede to the present Protocol. m

A r t . 135, Treaty of St. Germain, 1919, with Austria; Art. 82, Treaty of Neuilly, 1919 with Bulgaria; Art. 119, Treaty of Trianon, 1920, with Hungary; Art. 176, Treaty of Sèvres, 1920, with Turkey (this treaty was replaced by the Treaty of Lausanne, 1923, which did not contain such a provision). 172 T h e article continued, "having been justly condemned by the general opinion of the civilized world and a prohibition of such use having been declared in treaties to which a majority of the civilized powers are parties . . . " Hackworth, VI, 269-270. See also Art. V of the Convention on the Limitation of Armaments, signed by the Central American republics at Washington, Feb. 7, 1923, which stated "the use in warfare of asphyxiating gases, poisons, or similar substances as well as analogous liquids, materials or devices is contrary to humanitarian principles and to international law." Hackworth, VI, 270; Hudson, International Legislation, II, 945-

Methods, Instruments of Warfare

357

T h e protocol was ratified or acceded to by forty states, including the United Kingdom, the U.S.S.R., France, Germany, Italy, and China. 173 The United States and Japan signed, but did not ratify 1 7 4 the protocol. However, although the U.S. army field manual, The Law of Land Warfare, states that "the United States is not a party to any treaty, now in force, that prohibits or restricts the use in warfare of toxic or nontoxic gases . . . or of bacteriological warfare," 1 7 6 the manual is careful not to make the positive claim that the United States is entitled to use such weapons. 176 It may also be noted that, as a result of proposals by the president of the United States, Hoover, the General Commission of the Disarmament Conference of 1932, convened by the League of Nations, condemned by resolution as prohibited methods of warfare the use of gas, bacteriological, and incendiary warfare. 177 In fact, the whole practice of warfare since the end of World War I has been such as to place gases in the category of illegal weapons. T h e use of poison gas by Italy 178 in its hostilities against Ethiopia, 1935-1936, aroused the horror and repugnance of the world. Both Italy and Ethiopia were parties to the Geneva gas protocol, 1925. In World War II, gases were, in general, not used in combat, 179 although the Germans made terrible use of poison gas for the purpose of destroying civilian populations in occupied territories by means of gas chambers and gas wagons. 180 However, the opposing belliger173 T h e People's Republic of China (Communist China) on July 16, 1952, announced on the Peiping radio its adherence to the Geneva Protocol on gas and germ warfare. New York Times, July 17, 1952, p. 1, col. 1. " • T h e U.S. Senate "refrained from giving its advice and consent to the ratification." U.S. Law 38. 175 U.S. Law 38. 176 See reports by the U.S. Naval W a r College (1935) and an earlier report of the General Board of the United States Navy condemning the use of poison gas as contrary to international law. T h e report of the former similarly condemned bacteriological warfare. Hyde, III, 1820. 177 Resolution of July 23, 1932. See Wheeler-Bennett and Heald, eds., Documents on International Affairs (1932), p. 180; Oppenheim, II, 104, 275. See also the resolutions of the Council of the League of Nations of May 14, 1938, and Sept. 30, 1938, in which, following on communications from the Chinese government, the Council "recalls that the use of toxic gases is a method of war condemned by international law, which cannot fail, should resort be had to it, to meet with the reprobation of the civilised world." League of Nations Official Journal, 19th Year (1938), Part I, p. 378; Part II, p. 881. 1,8 See speech of Haile Selassie I, emperor of Ethiopia, in League of Nations Assembly debate, June 30-July 4, 1936. Keith, Speeches and Documents on International Affairs 1918-1937, II, 85-86. " " According to Spaight, op. cit., pp. 193-194, there were no authenticated cases of its use in combat. 180 Nuremberg Judgment, pp. 64-65.

35»

Methods,

Instruments

of

Warfare

ents stood ready to engage in gas warfare should the enemy attempt to seize an unlawful military initiative in this regard. 181 T h e United Kingdom, France, and the U.S.S.R. (among other nations) in adhering to the protocol had expressly made reservations to the effect that they would cease to be bound by the protocol toward an enemy whose armed forces, or those of his allies, failed to respect the prohibitions laid down in the protocol. Probably the fact that the two sides were so equally balanced in regard to gas warfare, with little military advantage to be gained by its use, helped restrain its use in combat in World War II. It is obvious, however, that neither side was prepared to incur the inevitable odium that would attach to the open and admitted use of gas warfare. Both in World War II and the Korean war, allegations of the use of poison gas have been regarded as slanders by the party accused, and as such hotly refuted. Clearly, if gas warfare is a legal weapon of war, allegations of its use in combat could not in themselves bear a slanderous connotation. T h e attitude of the United States has been in this respect no different from that of the nations which are bound by treaty. 182 Further, the United States, not a party to the Geneva Protocol, 1925, which prohibited both gas and bacteriological warfare, has repeatedly denied as propaganda allegations that its forces in the Korean conflict have engaged in bacteriological warfare. 183 Obviously, quite apart from treaty obligations, bacteriological warfare is regarded as a disgraceful and impermissible weapon, 184 whose proven use would bring down on the user the merited obloquy of mankind. 1 8 1 Spaight,

op. cit., pp. 195-196. See, for example, statement of the U.S. secretary of state (Dean Acheson) at the U.N. General Assembly, Oct. 16, 1952: " W e will not commit aggression with chemical weapons or bacteriological weapons, which we have been falsely and slanderously accused of using." U.S. Dept. of State Bulletin, X X V I I (Oct. 27, 1952), 641. O n Oct. 26, 1953, Dr. Charles Mayo, member of the U.S. delegation to the U.N., speaking before Committee I (Political and Security) of the General Assembly, referred to allegations that American forces had engaged in germ warfare in the Korean war as a "vicious slander . . . upon our national honor, upon the dignity of our soldiers." Ibid., X X I X (Nov. 9, 1953), 647. 183 T h e s e allegations were repeatedly made by the North Korean and (Communist) Chinese governments in the first half of 1952 and later. 184 See also Fauchille, II, par. 1084. Following W o r l d W a r II, 12 former members of the Japanese army were convicted (inter alia) of preparing and using bacteriological weapons against the Mongolian People's Republic in 1939 and against China on occasions during 1940, 1941, and 1942. T h e weapons included those of typhoid, paratyphoid, cholera, anthrax, and plague. Trial of Otozoo, et al. (1949), Russian Mil. Trib., Khabarovsk, U.S.S.R., Materials on the Trial of Former Servicemen of the Japanese Army . . . T h e accused were convicted although Japan did not ratify the Geneva Protocol, 1925 (see above). 182

Methods,

Instruments

of

Warfare

359

Gas and bacteriological warfare may be regarded as particular instances of infringements against the general prohibition of poison or poisoned weapons in war. Article 23 (a) of the Hague Regulations, 1907, states: "In addition to the prohibitions provided by the special Conventions, it is particularly forbidden to employ poison or poisoned weapons." Some instances of the application of this rule have previously been considered. 185 T h e use of smoke for smoke screens concealing movements and operations could not be considered an infringement of the law against gas warfare. 186

SOME

THE

MODERN

WEAPONS

STANDARDS O F

CONSIDERED

ASSESSMENT

T h e period since the outbreak of World War I has seen the development of many novel weapons and projectiles, some of them of enormous destructive power. This process was accelerated during World War II, with the introduction of such fearsome instruments of warfare as the flying bomb (the V-i), the long-range rocket (the V-2), and culminated in the atomic bomb, of which two were dropped in August, 1945, on Hiroshima and Nagasaki in Japan, devastating those cities and setting off throughout the world reverberations of awe and consternation which have still to die down. It is obviously desirable that the community of nations should come to general agreement on the admissibility of particular weapons about which controversy has arisen, but in the absence of such agreement the existing rules of war form a guide. Such weapons can be assessed according to the existing rules of war applicable to weapons generally or to weapons of a similar kind. It was mentioned that, in general, weapons must not be used which uselessly aggravate the sufferings of disabled men, or render their death inevitable; 187 nor may poison nor poisoned weapons be employed. 188 Added to these principles, it must be borne in mind that indiscriminate bombardment of the civilian population is prohibited, 189 so that weapons which must necessarily have that effect Above, p. 317. In 1935, the United States Naval W a r College considered the use of smoke screens and tear gas not in the category of prohibited acts. Hyde, III, 1820. T e a r gases cause the eyes to smart and water, but are otherwise harmless. Above, pp. 353 f. » l m Above, pp. 317, 359. 18B Above, pp. 335 f. 185

180

360

Methods,

Instruments

of

Warfare

when used are also illegal. By applying these standards and the special conventions, an assessment can be made of the legality of specific modern weapons. It may be noted here that the use of radar to identify targets can only be considered legal if it allows for discrimination between military and nonmilitary objectives. 190 FIRE

WEAPONS

Fire has always constituted a concomitant to warfare, b u t the only specific conventional rule in modern warfare which relates to the use of fire is the prohibition in the Declaration of St. Petersburg, 1868, against the employment by military or naval troops of any projectile weighing less than 400 grams which is charged with fulminating or inflammable substances. T h i s prohibition implies that it is unlawful to employ fire as a direct means of disabling or killing in war. 1 9 1 O n the other hand, whatever the objections to using fire as a weapon against human beings, it may lawfully be employed to destroy military objectives of a material nature such as fortifications, buildings, stores, equipment, and the like. Probably this distinction is responsible for the apparent legality of the use of incendiary projectiles by or against aircraft, 1 9 2 such bullets being regarded as primarily intended for the destruction of the aircraft rather than the men inside it. A m o n g the more recent weapons, however, are some of an antipersonnel nature designed to kill or w o u n d by fire. T r u e they can also be used to destroy inanimate objectives, but it is the legality of their direct use against troops which is here being considered. O n e of these weapons is the flame thrower, used during and since W o r l d W a r I. In fact its use is stated to be prohibited in a number of the peace treaties which concluded W o r l d W a r I, 1 9 3 and various authorities 100

O n the use of radar to identify a target, see also above, p. 348 and note

(135).

Cf., the condemnation of red-hot cannon balls as a weapon of war; see above, p. 353. See also Br.M.M.L., Pt. I l l , par. 109, n. 1. 182 Above, pp. 354-355. See "General Report," Moore, op. cit., p. 238, which states regarding Art. 18, Hague Rules of Air Warfare, that the use of incendiary bullets is necessary to destroy lighter-than-air craft and also refers to the impracticability of an airman changing the ammunition he is using while in flight, to accord with his target. See also Oppenheim, II, 410-411. 193 Art. 135, Treaty of St. Germain, 1919, between the Allied and Associated Powers and Austria, states: " T h e use of flame throwers, asphyxiating, poisonous or other gases, all similar liquids, materials or devices being prohibited, their manufacture and importation are strictly forbidden in Austria." Cf., Art. 82, T r e a t y of Neuilly, 1919, with Bulgaria; Art. 119, T r e a t y of Trianon, 1920, with Hungary; Art. 176, Treaty of Sèvres, 1930, with T u r k e y (replaced by T r e a t y of Lausanne, 1923, which did not contain such a provision). 191

Methods,

Instruments

of

Warfare

361

have condemned the weapon as unlawful. 194 T h e use in the Korean war (by United Nations forces) of napalm (jellied gasoline) bombs 195 and the objections raised in various quarters against such use invite a reconsideration of the lawfulness of all fire weapons when used against the military forces of the enemy. 196 T o burn a man to death or disable him by burning must in all circumstances cause the victim agonizing pain and suffering. Burning can never offer an instantaneous and comparatively painless death such as may be afforded by a bullet or shell fragment. It is true that the latter too may inflict wounds which result in a horrible and lingering death. But such a consequence is not inevitable, while it is inevitable when fatal wounds are inflicted by burning. Fire weapons, therefore, appear to have the two characteristics which identify illegal weapons in the Declaration of St. Petersburg, 1868. They uselessly aggravate the sufferings of disabled men and render their death inevitable. In addition, fire bears a close relationship to certain types of gases and analogous liquids, materials, or devices, condemned by the Geneva Protocol, 1925. For instance, the blister group of war gases—mustard gas, Lewisite gas, and ethyldichlorarsine (dick)—are so named because they produce blisters on the body, both internally and externally, which can produce death. T h e choking group of gases—phosgene, diphosgene, chlorine, and chloropicrin—kill by their asphyxiating effect. Fire, too, can cause death by extensive damage to the skin and tissues of the body; it can also kill by asphyxiation. 194 Spaight, op. cit., p. 197, declared that flame throwers "have been added to the weapons of war without giving rise to any suggestion that they should be declared illegitimate." Actually, Oppenheim, II, 272, had stated: " T h e r e is no doubt that this practice is unlawful because it causes 'unnecessary injury'." Cf., W h e a t o n , II, 750: " W h o l l y inexcusable as causing needless suffering, was the use of flame projectors to throw burning liquid on the enemy." Garner, International Law and the World War, I, 287, refers to protests against the lawfulness of this weapon. See Hyde, III, 1819, for a description of another fire weapon of W o r l d W a r I known as "oil cans" or "boiling oil," consisting of projectiles which were containers of a highly inflammable substance which burst on concussion and scattered fire over a wide area. 195 T h i s type of bomb was first developed and used in W o r l d W a r II. It belongs to the solid-oil type of bomb, which when exploded scatters small, fiercely burning lumps of the jelly which stick firmly on contact with an object. For a description of solid-oil types of bombs, see Prentiss, Civil Defense in Modern War, p. 74-78. 166 U.S. Law 36 states: " T h e use of weapons which employ fire, such as tracer ammunition, flame throwers, napalm, and other incendiary agents, against targets requiring their use is not violative of international law. T h e y should not, however, be employed in such a way as to cause unnecessary suffering to individuals." Cf. Br.M.M.L., Pt. I l l , par. 110, n. 1.

362

Methods,

Instruments

of Warfare

A corrosive spray, bahned by the terras of the Geneva Protocol, 1925, would not be essentially dissimilar in its effects on the human body from fire sprayed by a flame thrower. It may, therefore, reasonably be argued that if the one is not lawful, neither is the other. In fact, it has already been noted that the General Commission of the Disarmament Conference of 1932, convened by the League of Nations, condemned the use of incendiary warfare at the same time it condemned the use of gas and bacteriological warfare. 197 Judged on the considerations which have been adduced, it would appear that fire should not be employed as an antipersonnel weapon, although it may lawfully be used against other material objectives. Incidentally, a napalm bomb dropped from an aircraft does not appear to come within the technical description of an incendiary projectile permissible under Article 18 of the Hague Air Warfare Rules, 1923.198 On the other hand, incendiary bombs in general may be used from aircraft to destroy by fire material objectives, as distinguished from human objectives. However, a fire weapon such as that used by the Japanese in World War II, consisting of balloons carrying small incendiary bombs together with small fragmentation antipersonnel bombs, which they sent drifting over the United States from across the Pacific in late 1944 and early 1945, must be accounted illegal. Such a weapon is indiscriminate in its effects since the sender has no means of assuring exactly where it will land. 199 MINES

T h e mine is an old instrumentality of warfare, which in various developed forms has been freely employed both on land and at sea in present-day warfare. For the purpose of the present discussion, mines may be divided into two main classes: observation or controlled mines, which are exploded by direct human agency, and automatic contact mines which are fired by contact. Into the first class fall mines from which wires lead to a human operator, who may activate them at will by an electric current. Such mines are safe until exploded in this fashion. There can be no objection from the legal standpoint to the employment of such a weapon, since it is controlled in its use and differs little in its effect from that 187 Resolution of July 23, 1932. See Wheeler-Bennett and Heald, eds., Documents on International Affairs (1932), p. 180. See also above, p. 357. T h e United States was a party to this conference. 198 Above, p. 355. l w F o r a description of this weapon, see Wilbur, "Those Japanese Balloons," The Reader's Digest LVII (August, 1950), 23.

Methods,

Instruments

of Warfare

363

of a shell fired from a cannon. 200 Observation or controlled mines as a class may, therefore, be considered a valid means of warfare. Similarly no legal objection can be offered to the use of automatic contact mines as a defensive weapon. These are mines which are discharged when persons step on them or vehicles pass over them, according to the type used. Such mines may be used to protect a defensive position or by a retiring force to delay pursuit by the enemy. It is as an offensive weapon, however, that such mines would be open to objection, as, for instance, when laid by a raiding force in enemy territory, since generally there would be no way of ensuring that they would not injure or kill persons and destroy vehicles protected by the law from attack. Mines used in this fashion are indiscriminate in their effects, and may as easily explode under a civilian, an ambulance, or a civilian passenger train, as under a soldier, a tank, or a train carrying troops. Mines in the nature of booby traps are, in general, to be condemned, since usually they are indiscriminate in dealing out death and injury. T h i s also applies to their use by a retiring force. For instance, if a mine were attached by retreating troops to the electric lighting system in a house so as to be exploded if the light switch were pressed, the victims might be the returning inhabitants. Also to be condemned, and for the same reasons, are explosive objects in the guise of trinkets and valuables, scattered behind the enemy's lines by airplanes, such as those taking the form of fountain pens and watches which are designed to explode when used. Such contrivances are more nearly related to the devices of an assassin than the arms of a soldier, and can have little effect in weakening the resistance of the enemy, which is the object of war. Mines detonated by a timing mechanism would, on the whole, appear to be governed by the same considerations as those discussed for automatic mines. 201 However, such mines could be used legitimately in offensive operations by a raiding party for the purpose of destroying a fortified position after giving the party time to get clear. Some consideration should also be devoted to the use of mines at sea, since they are freely used to protect territorial waters, including port areas, as well as to obstruct the enemy in the use of his own 200 Hyde, III, 1939, n., citing U.S. Naval War College, International Topics and Discussions, 1914, p. 107. 201 Fauchille, II, par. 1086, condemns delayed-action mines left behind by retreating German forces in World War I which, many days or even weeks afterward, exploded and killed innocent persons. He cites the instance of such a mine which exploded at a French bridge (pont de Guise) more than a month after the armistice of Nov. 11, 1918, killing 15 persons and wounding 25.

Methods,

of

Warfare

territorial waters. M i n e s at sea are of three general classes:

observa-

5^4

Instruments

tion mines; anchored a u t o m a t i c contact mines w h i c h are attached to h e a v y weights, can b e p l a c e d at any r e q u i r e d d e p t h b e l o w face, a n d w h i c h are e x p l o d e d

automatically

the sur-

b y contact w i t h

heavy

bodies such as ships; a n d u n a n c h o r e d a u t o m a t i c contact mines w h i c h also e x p l o d e b y contact. 2 0 2 T h e last category w o u l d i n c l u d e the m a g netic mines used b y the G e r m a n s i n W o r l d W a r I I , w h i c h themselves

by electromagnetic

devices to ships, before

attached

exploding.203

T h e considerations discussed c o n c e r n i n g observation mines o n l a n d a p p l y also to such mines at sea. N o legal o b j e c t i o n can be offered to them, a n d they are i n n o c u o u s to p e a c e f u l s h i p p i n g . T h e

rules con-

c e r n i n g a u t o m a t i c s u b m a r i n e contact mines are, however, dealt w i t h in H a g u e Convention V I I I , hibitions.

Today,

these

1907, w h i c h contains the f o l l o w i n g pro-

prohibitions

will

be

equally

applicable

to

mines l a i d b y aircraft as w e l l as by seagoing vessels. It is forbidden: 1. T o lay unanchored automatic contact mines, unless they be so constructed as to become harmless one hour at most after those who laid them have lost control over them; 2. T o lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings; 3. T o use torpedoes which do not become harmless when they have missed their mark [Article 1]. It is forbidden to lay automatic contact mines off the coasts and ports of the enemy, with the sole object of intercepting commercial navigation [Article a]. It has been p o i n t e d o u t that this rule is of little effect since it m a y easily

be

avoided

by

a l l e g i n g some other

intention

than

that

pro-

h i b i t e d i n the article. 2 0 4 W h e n anchored automatic contact mines are employed, every possible precaution must be taken for the security of peaceful navigation. T h e belligerents undertake to provide, as far as possible, for these mines becoming harmless after a limited time has elapsed, and, where the mines cease to be under observation, to notify the danger zones as soon as military exigencies permit, by a notice to mariners, which must also be communicated to the Governments through the diplomatic channel [Article 3].206 Neutral Powers which lay automatic contact mines off their coasts must observe the same rules and take the same precautions as are imposed on belligerents. T h e neutral Power must give notice to mariners in advance of the places where See Higgins, The Hague Peace Conferences, p. 328; U.S. Rules 62. Hyde, III, 1937. 204 Higgins, op. cit., p. 337; U.S. Rules 64. 205 Higgins, op. cit., p. 343, points out that "the proviso that danger zones shall be notified 'as soon as military exigencies allow' is of little value," and stresses the peril to neutral shipping. 202 203

Methods,

Instruments

of

Warfare

365

a u t o m a t i c contact mines have been laid. T h i s notice must be c o m m u n i c a t e d

at

once to the G o v e r n m e n t s t h r o u g h the diplomatic c h a n n e l [Article 4]. A t the close of war, the C o n t r a c t i n g Parties undertake to d o their utmost

to

remove the mines w h i c h they have laid, each Power r e m o v i n g its o w n mines. As regards anchored automatic contact mines laid by one of the belligerents off the coast of the other, their position must be notified to the other party by the P o w e r w h i c h laid them, and each P o w e r must proceed w i t h the least possible delay to remove the mines in its o w n waters [Article 5].

A t the time the convention was concluded it was expressed to be b i n d i n g only on the contracting powers, and was subject to a "general participation clause," that is, the convention was b i n d i n g only if all belligerents engaged in a conflict were parties to the convention. However, the rules laid d o w n by the convention m a y today be regarded as expressing the law generally applicable, irrespective of contractual obligation. 2 0 6 N o specific provisions were contained in the convention concerni n g mine-laying in straits, i n c l u d i n g those connecting the h i g h seas, since it was difficult to express a general rule for all straits. It was, therefore, clearly understood that the existing situation concerning straits was not changed by the convention, subject to the consideration that " t h e technical conditions established by the R e g u l a t i o n s should be of general application." 207

GUIDED MISSILES

R e c e n t years have seen the development of m a n y types of rocket projectiles. N o legal objection can be taken to this f o r m of p r o p u l s i o n for missiles, and it has, indeed, been adapted for use in the f o r m of artillery and f r o m aircraft. However, the legality of the long-range rocket requires further consideration. In W o r l d W a r II, the G e r m a n s used the V-2 rocket, by w h i c h a warhead w e i g h i n g about a- ton was discharged f r o m the g r o u n d into the stratosphere, w i t h a range of a h u n d r e d to a h u n d r e d and fifty miles, traveling in descent at a speed greater than that of sound. 2 0 8 " A s used by the Germans in 1944-45 it was simply a crude instrument of random b o m b a r d m e n t , utterly lacki n g in precision, and its military value was nil." 209 Such a w e a p o n of indiscriminate b o m b a r d m e n t is illegal for the See Treaties Governing Land Warfare, T M 27-251, foreword, p. iii. Higgins, op. cit., p. 340, citing the report of Streit to the H a g u e Conference, 1907. Streit was the reporter of the subcommittee of the T h i r d C o m m i t t e e of the conference w h i c h dealt w i t h the question of submarine mines. ™ Spaight, op. cit., pp. 214-215. Ley, Rockets, Missiles and Space Travel, p . 391, gives an o p e r a t i o n a l range of 180-190 miles for the V-2. 308 Spaight, op. cit., p. 215. 206

207

366

Methods,

Instruments

of

Warfare

following reasons. Since it cannot be aimed with any precision so as to strike within even a specific, limited target area, this weapon cannot discriminate between legitimate military objectives and targets immune from bombardment. T h e missile is launched in the general direction of enemy territory, the only certainty being that it is bound to strike somewhere, without warning, on enemy soil. Even if it were directed against an area occupied solely by enemy forces, those launching the long-range rocket would have no idea whether it might strike such forbidden targets as medical units and establishments protected under Geneva Convention I, 1949. A t its stage of development in W o r l d W a r II, the only real use for this weapon was the terrorization of the enemy civilian population and the consequent disruption of civilian life in enemy territory—which were precisely the reasons why the Germans employed this arm. Both as an indiscriminate ("blind") weapon and as a weapon to terrorize the civilian population, the long-range rocket employed by the Germans in W o r l d W a r II is illegal under the laws of war. 2 1 0 Since W o r l d W a r II, the United States and the U.S.S.R. have made particular efforts to develop long-range ballistic (rocket) missiles. These weapons are being designed for varying distances, with main attention apparently concentrated on intermediate-range ballistic missiles, capable of traveling some 1,500 miles, and intercontinental ballistic missiles, ranging some 5,000 miles. In the latter half of 1957, the two countries claimed successful launchings of both these types. In addition, the U.S.S.R. had launched two small artificial moons (October—November, 1957), which maintained orbits in space, foreshadowing the development of space platforms which could be used militarily for such purposes as reconnaissance, communications and propaganda media, for j a m m i n g enemy radio and television, and also as firing platforms for missiles. Penetration to the moon and other planets for similar purposes is also envisaged. Legally, rockets of great range, whether fired from earth or from space, would be subject to the same considerations as those governing the earlier discussion of the V-2, particularly regarding selectivity and accuracy. If such a rocket is developed into a weapon of precision, then its legal status would be essentially that of other forms of artillery. For this it w o u l d be necessary "that its fall within a definite, circumscribed target area could be assured." 2 1 1 However, the great range at which such a weapon would be employed makes extremely 210 For the rules o£ bombardment, see above under "Bombardment, Siege and Assault." 2 U Spaight, op. cit., p. 215.

Methods,

Instruments

of Warfare

367

difficult the assurance that the target against w h i c h it might be employed w o u l d be indeed a permissible (military) objective. If the rocket were fitted with a nuclear warhead, its legality w o u l d also be governed by the considerations affecting nuclear weapons (atomic and hydrogen) shortly to be discussed. As has been stated, " I t would be n o harm if the long-range rocket were banned by international agreement, which could provide also some system of international inspection to ensure that the b a n was not evaded." 2 1 2 T h e objections against the V-2 rocket also apply to another weapon of the Germans in W o r l d W a r II, the flying bomb, k n o w n as the V - i . It has been described as "another abominable projectile w h i c h might well be prohibited at the same time [as the V-2]. It is, again, a w e a p o n which cannot really be aimed at all. It is, and was always meant to be, a weapon of retaliation, and in retaliation the rules of war are broken down." 2 1 3 In recent years the pilotless bomber has been developed to the degree that it is now capable of traveling 5,000 miles. 2 1 4 Powered by an air-breathing engine, its speed is less than that of a rocket missile. However, the legal considerations applicable to rocket missiles will also apply to this weapon. Incidentally, the use in air combat of the aircraft itself as a projectile, as for instance to ram an enemy aircraft, is a legitimate practice. 2 1 5

BIG

BOMBS

D u r i n g W o r l d W a r II, the size of bombs used for air bombardment was steadily increased. Examples were the 4,ooo-pound bomb, which 212

Loc.

cit.

mer of and

At

the U . N . disarmament

1957, both

the

U.S.S.R.

subcommittee meetings during

the U n i t e d States (with made

proposals

to

ban

the

support

long-range

of

the

Britain and

missiles.

On

sum-

France)

Oct.

7,

1957,

Khrushchev, proposed, in a press interview with an American newsman, the international control of space missiles. Associated Press dispatch, Washington, O c t . 8, 1957. O n mittee

in

Oct. New

10, 1957, the U n i t e d York

missiles. Associated

an

inspection

States proposed system

Press dispatch, N e w

to the U . N .

to guarantee

York,

Oct.

peaceful

10, 1957. N o

Political use

Com-

of

space

agreement

fol-

lowed on these various proposals. MSpaight, 214

test

op. cit.,

p. 215.

In a general press release, N o v . 15, 1957, the U.S. Air Force stated that on a flight,

Oct. 31, 1957, the "Snark" intercontinental

guided

missile (a pilotless

bomber) carried a warhead to a tiny target 5,000 miles from its launching, h i t t i n g "with unprecedented 210

Spaight, op.

cit.,

accuracy." pp. 1 5 1 - 1 5 2 . Aircraft without h u m a n occupants and

loaded

with explosives which were guided into a target by remote control exercised

by

radio and television were used both during W o r l d W a r I I and in the later Korean war, 1950-1953.

368

Methods,

Instruments

of

Warfare

216

was the most commonly used big bomb, the 8,ooo-pound bomb ("the block-buster"), the i2,ooo-pound bomb (the "Tallboy"), and the 22,ooo-pound bomb which was used on March 14, 1945, on the viaduct at Bielefeld, Germany. T h e last-named measured 2 5 ' 3 " in length and 3 ' i o " in diameter. It made a crater 120 feet in diameter and 35 feet deep. 2 1 7 Yet, although such bombs were of enormous destructive power, the range of their destruction was not so disproportionate compared to the objectives against which they were aimed as to arouse doubts of their legality. THE ATOMIC

BOMB

T h e legal status of the atomic bomb is far different from that of even the most powerful of the conventional bombs used in World War II. T h e vast extent and comprehensiveness of the destruction which it inflicts, as well as other and continuing effects produced by its use have distinguished it from any engine of destruction previously known to mankind. T h e United States communiqué which followed the dropping of the first atomic bomb on J a p a n at Hiroshima on August 6, 1945, described the destruction in these terms: T h e heart of the city had been wiped out with such awful thoroughness that it was as though some giant bulldozer had swept across the buildings and houses. . . . T h e photographs show that four and one-tenth square miles 218 of the city's built-up area of six and nine-tenths square miles were completely destroyed by the atom bomb mission. 210

These consequences were the result of the use of one single bomb. 220 Since that time further intensive research has been concentrated upon this type of weapon by various countries throughout the world. While the nature of such research has been kept secret, it is obvious that further development of the destructive nature of the bomb must result in devastation even greater than occurred at Hiroshima, and will exceed the estimates of damage set out below. 2 2 1 218

Spaight, op. cit., p. 2 1 9 . Ibid., p. 127. T h e U.S. Strategic Bombing Survey, The Effects of Atomic Bombs on Hiroshima and Nagasaki, p. 3, states that 4.4 sq. m. were almost completely burned out at Hiroshima. 219 Communiqué issued at Guam, Aug. 8, 1945, by General Carl Spaatz, commanding the Strategic A i r Forces in the Pacific; cited by Spaight, op. cit., p. 273. 220 Of approximately 20 kilotons, namely, an energy release equivalent to 20,000 tons of T N T . The Effects of Atomic Weapons, p. 13. T h e bomb was exploded at a height of about 1,850 feet in the air. The Effects of Nuclear Weapons, p. 85. 221 " I t has been stated that since the war there have been significant improvements in atomic bombs. These improvements have resulted in more powerful 217

218

Methods,

Instruments

of Warfare

369

T h e explosion of an atomic bomb causes damage chiefly in three ways: from air blast; from thermal radiation and incendiary effects; and from nuclear radiation. Based upon the experience gathered from the explosion in August, 1945, of the two atomic bombs at Hiroshima and Nagasaki, and from some experimental explosions, estimates have been made of the extent and nature of the various kinds of damage. T h e radius and area of the effects are estimated from what is known as ground zero, which is the point on the ground where the b o m b explodes or the point on the ground directly below the point where the bomb explodes in the air. Damage from air blast will, according to the Japanese experience, result in the virtually complete destruction of all structures to a radius of approximately a half-mile from ground zero, corresponding to an area of about three-quarters of a square mile. Severe damage, that is, major structural damage that would result in the collapse or liability to collapse of buildings, will occur to a radius slightly more than one mile from ground zero (4 square miles). Moderate damage, sufficient to render the structure unusable until repaired, will take place u p to a radius of one and five-eights of a mile (8 square miles); partial damage to a radius of two miles (12 square miles); and finally light damage, mostly plaster damage and window breakage, to a radius of eight miles or more, extending the damage area to 200 square miles. However, the light damage might extend over considerably greater distances where meteorological conditions at the time of the detonation favor this, as for instance under conditions which provide a temperature inversion in the lower atmosphere. 222 T h e r m a l radiation would, according to experience in Japan, lead to more or less serious skin burns within a radius of about 10,000 feet from ground zero, on those exposed "to radiation from a nominal atomic bomb, on a fairly clear day." 223 As for incendiary effects, these may vary as they do not present any characteristic features. While the blast at Hiroshima and Nagasaki was the same, the total area severely damaged by fire at Hiroshima was about 4.4 square miles, which was about four times as great as that so affected at Nagasaki. "It can be seen, however, that the atomic bomb is bombs and in a more efficient use of the valuable fissionable material." Robert F. Bacher (head of Physics Department, California Institute of Technology), " T h e Hydrogen Bomb," in The H Bomb, p. 154. 222 The Effects of Atomic Weapons, pp. 134-136. 223 Ibid., p. 200. A "nominal atomic bomb" is one similar to those used at Hiroshima and Nagasaki, i.e., with an energy release approximately equal to that of 20 kilotons (20,000 tons) of T N T ; ibid., p. 13.

370

Methods,

Instruments

of Warfare

unique in the overwhelming nature of its destructiveness, and this is particularly true as far as incendiary effects are concerned." 224 Air blast and fire also result from the explosion of conventional bombs, although not on the immense scale of the atomic bomb. Nuclear radiation, however, is something new in warfare. Such radiation can neither be seen, heard, smelled, felt, nor tasted. It consists of streams of fast-flying particles or waves from the shattered atoms which penetrate the human body and can cause illness and death. T h e two types of radiation which are most material to warfare in that they can travel farthest and have the most penetrative effect are gamma rays, which are waves of energy, and neutrons, which are nuclear particles with no electrical charge. " T h e median lethal range of the gamma radiation from the nominal atomic bomb is about 4,200 feet. Thus a large proportion of human beings exposed to the initial gamma rays within 4,200 feet of an atomic explosion would die from radiation sickness." 225 As for the lethal range of neutrons, this has been stated in the following terms: "Neutrons from an atomic bomb would be lethal to unshielded persons at distances not greater than half a mile from ground zero." 226 T h e initial nuclear radiations are, however, not the only ones which may result from an atomic burst. More lasting effects may be produced by the radioactive contamination of the area following the explosion. Such radioactive contamination may render the area uninhabitable for a long time. T h e extent and duration of the contamination would depend upon a variety of circumstances, particularly the height from the ground at which the bomb exploded, the nature of the terrain and the meteorological conditions prevailing at the time. Radioactive contamination is produced by the direct deposition of fission products as a result of an atomic explosion, by neutroninduced activity i.e. activity caused by the interaction of neutrons with matter penetrated), and by the fall-out from the explosion. T h e phenomenon known as "the fall-out" 227 occurs when the dirt particles in the cloud thrown up by the explosion become contaminated with radioactivity. When the disturbance of the explosion subsides, the contaminated dirt particles gradually fall back to earth. Similarly, where the burst is over water the drops of water thrown up could 224

Ibid., Ibid., 226 Ibid., 227 Ibid.,

225

p. 212. p. 236. p. 224. pp. 33-35.

Methods,

Instruments

of Warfare

371

become contaminated, especially salt water. A burst in moist air might later precipitate radioactive rain. 228 T h e danger of radioactive contamination of an area is greatest in a low air burst, a surface explosion, or an underground or underwater burst. Concerning a low air burst it has been stated: After an air burst at low altitude an area, small compared with the damage area due to the bomb, near the explosion center would be uninhabitable because of the radiation hazard. Nevertheless, calculations show that a vehicle travelling at a moderately high speed could cross the contaminated ground about fifteen minutes after the explosion without the occupants being greatly harmed. It would probably be six hours or more before it would be safe to walk across the area; but to stay for any length of time would, of course, be out of the question, unless proper shielding were available. T h e great amount of radioactive dust in the air after a low-altitude explosion would require special precautions to prevent entry of the active material into the system.229

Contamination of the air by the radioactive cloud would also be a hazard to aircraft. 230 T h i s consideration of the nature and effects of the atomic bomb reveals only too clearly the characteristics of this weapon as hitherto demonstrated. T h e great extent and awful thoroughness of the destruction wrought by the bomb make impossible in its use any discrimination between military and nonmilitary objectives within the range of its effects. 231 If such distinctions, which go to the very root of the modern law of war, as the differentiations between noncombatants and combatants and targets which may be attacked and those which may not be attacked are to be maintained, it is essential that lawful weapons should be sufficiently selective in their effects to allow for such differentiation. This is definitely not the case with the atomic bomb in its revealed forms. It might be argued that, for practical purposes, there is little difference between the devastation produced by target-area bombing and that of the atomic bomb. T h e r e are, however, essential differences between the two. First, target-area bombing is a method of attack, not a weapon, and any objections to its legality go to the manner in which the weapons used are employed, not to the weapons themselves. Secondly, target-area bombing is a controlled attack over a selected area, in which the bombardment is limited to an area proportionate to the target which is sought. A n authority Ibid,., pp. 266, 274. Ibid., p. 270. 230 Ibid., p. 266. 231 Cf., Castrin, The Present 228

220

Law

of War and Neutrality,

p. 206.

372

Methods,

Instruments

of

Warfare

who claims that target-area bombing is legal but atomic bombing is not has expressed the difference in these terms: " T h e area included in the assault [in target-area bombing] is not out of proportion to that which the actual objectives occupy. In atom bombing the disproportion is immense." 2 3 2 A third difference lies in the effects of nuclear radiation, produced only by the atomic bomb. Many persons exposed to nuclear radiation are inevitably condemned to lingering and painful deaths. 233 It has already been noted that of the persons exposed within a radius of up to about 4,200 feet from the point of explosion of the bomb, a large proportion would die from radiation sickness. 234 T h e effects of the atomic bomb, therefore, offend against the principles laid down by the Declaration of St. Petersburg, 1868, in that they uselessly aggravate the sufferings of disabled men or render their death inevitable. Following on the initial nuclear radiation, radioactive contamination may render the area of the explosion uninhabitable for a long time. Such contamination has the virtual effect of poisoning the whole area; not merely the food and water in it, but the land itself and even the very air above it. So far-reaching indeed are the effects of radiation that the harm it inflicts may extend beyond its living victim to his unborn children and remoter descendants, because it is known to be one of the factors which can affect heredity. 235 In view of such characteristics, the atomic bomb is indictable on yet another count, namely that it offends the law against the employment of poison or poisoned weapons 236 or that it is contrary to the principle of the Geneva Protocol, 1935. It will be recalled that the Geneva Protocol, 1925, not only condemned the use in war of "asphyxiating, poisonous or other gases," but also of "all analogous liquids, materials and devices." Nuclear ^ S p a i g h t , op. cit., p. 274. 233 U.S. Strategic Bombing Survey, op. cit., pp. 18-20. At p. 19: "There is reason to believe that if the effects of blast and fire had been entirely absent from the bombing, the number of deaths among people within a radius of one-half mile from ground zero would have been almost as great as the actual figures and the deaths among those within one mile would have been only slightly less. T h e principal difference would have been in the time of the deaths. Instead of being killed outright as were most of these victims, they would have survived for a few days or even 3 or 4 weeks, only to die eventually of radiation disease." 234 See above. 235 The Effects of Atomic Weapons, pp. 363-365; The Effects of Nuclear Weapons, pp. 494-497; 499 (effects on reproductive organs); U.S. Strategic Bombing Survey, op. cit., p. 19 (effects on reproduction). 230 Art. 23 (a), Hague Regulations, 1907.

Methods,

Instruments

of Warfare

373

radiation, both in its initial effects and as radioactive contamination, may well be held to come within the latter phrase. Even if technically it cannot be placed in the category of a gas, radioactivity as a poisonous weapon may be condemned by inference or analogy on the basis of the principles contained in the Geneva Protocol, 1925. 237 T h e legal objections which apply to the radioactive effects of the atomic b o m b would naturally also apply to radiological warfare as such. Radiological warfare may be described as "the employment for military purposes of radioactive material with the object of contaminating persons, objects or areas." 238 As for the atomic bomb, radiological effects are only part of its harmful purpose. T h e atomic bomb, therefore, may be classed as "an indirect weapon of radiological warfare, for its main purpose is to cause physical destruction, the radioactive contamination being a secondary consideration." 239 However, the possibility exists that radioactive substances may be used by themselves alone to constitute a weapon of war; and not merely as one of the several effects produced by a weapon such as the atomic bomb. It has been suggested that, as a direct weapon, radiological warfare would most probably take "the form of emitters of penetrating gamma radiation for which protective clothing and gas masks would be ineffective." 240 W o r l d opinion is united on the necessity for eliminating the atomic bomb as a weapon of warfare, and since the end of W o r l d W a r II the United Nations has devoted considerable effort to the achievement of an international convention which would specifically outlaw not only the atomic b o m b itself but atomic weapons in general. Such an agreement would have the effect of recording in specific terms what is at present a matter for legal deduction. Pursuing this objective, the General Assembly of the United Nations on January 22, 1946, adopted a resolution establishing a Commission on Atomic Energy. T h e commission was in particular charged with making specific proposals for (a) the exchange between all nations of basic scientific information for peaceful ends; (b) the control of atomic energy to the extent necessary to ensure its use only for peaceful purposes; (c) the elimination from national armaments of atomic weapons and of all other major weapons adaptable Spaight, op. cit., p. 276. Cf., Castrén, op. cit., p. 207. The Effects of Atomic Weapons, p. 287. However, a nuclear b o m b exploded "at low altitudes [causing] radioactive contamination over large areas that are beyond the range of physical damage" may be envisaged as a direct weapon of radiological warfare. See The Effects of Nuclear Weapons, p. 428. 239 The Effects of Atomic Weapons, p. 428. 240 Ibid., p. 288. 237

238

374

Methods,

Instruments

of

Warfare

to mass destruction; and (d) effective safeguards by inspection and other means to protect complying states against the hazards of violations and evasions. 341 U p to the present time, the United Nations efforts toward prohibiting atomic weapons by international agreement as expeditiously as possible342 have not been successful. While the member states are united on the absolute necessity for prohibiting the use of such weapons, mutual distrust and suspicion between the major powers, particularly the United States and the U.S.S.R., have so far prevented agreement on the means to achieve this end. On December 13, 1950, the General Assembly by resolution recognized "the inability to date to achieve agreement among nations on the elimination of atomic weapons under a system of effective international control of atomic energy," and the Atomic Energy Commission has now ceased to exist as a separate body, but has been merged with the United Nations Commission for Conventional Armaments. 243 In the absence of a specific agreement between the nations on the use of atomic weapons, or the emergence of a new customary rule, such weapons can only be judged on the basis of the existing laws of war. 244 Considered thus, the atomic bomb has the illegal characteristics which have been discussed. T h e same objections which apply to its use in the strategic bombardment of industrial targets and the like, may apply equally to its use against purely military concentrations, such as large military encampments or large bodies of troops assembled before a general attack. Here again the vast area which the bomb devastates makes impossible any discrimination between permissible and nonpermissible targets within that area, while the effects of nuclear radiation would still offend in the manner previously described. 241

For the terms of reference of the commission, see Yearbook

of the U.N.,

1946-

*947> P- 65. 212 See U.N. General Assembly resolution of Dec. 14, 1946, requesting the Security Council to expedite the matter; ibid., p. 446. " " A s some means of remedying the resulting stalemate, the International Committee of the R e d Cross has prepared Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in T i m e of W a r , which the X l X t h International Conference of the R e d Cross, meeting at New Delhi, India, Oct.-Nov., 1957, resolved to transmit to governments for their consideration. Art. 14 reads: " W i t h o u t prejudice to the present or future prohibition of certain specific weapons, the use is prohibited of weapons whose h a r m f u l effects—resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents—could spread to an unforeseen degree or escape, either in space or in time, from the control of those w h o employ them, thus endangering the civilian population. T h i s prohibition also applies to delayed-action weapons, the dangerous effects of w h i c h are liable to be felt by the civilian population." M C f . Br.M.MX., Pt. I l l , pars. 107, n. 1 (b); 113.

Methods,

Instruments

of Warfare

375

It is relevant to consider here the legality of the use of atomic energy in the form of tactical weapons, such as atomic artillery. Atomic shells and artillery pieces capable of firing them have now been in existence for some years. While tactical weapons of this nature may be devised which can be used in a more discriminating fashion than the atomic bomb, by confining their destruction to an area not disproportionate to that occupied by a legitimate target, 246 the effects of nuclear radiation would be open to the same legal objections made regarding the atomic bomb. A l l atomic weapons (weapons creating destruction by the release of atomic energy) hitherto revealed are open to these objections. It may be noted that the terms of reference of the United Nations Atomic Energy Commission directed it to make proposals not only for the elimination of the atomic bomb, but for the elimination of atomic weapons in general. 246

T H E HYDROGEN

BOMB

T h e same terms of reference (of the United Nations Atomic Energy Commission) also require specific proposals for the elimination "of all other major weapons adaptable to mass destruction." Since this United Nations resolution was adopted, there has been developed the most dire weapon of them all—the hydrogen bomb. A t least three countries—the United States, the U.S.S.R. and the United K i n g d o m — already possess this weapon. 247 T h e theory behind the hydrogen bomb 248 is, in effect, the duplication on earth of the fundamental source of energy in the ^Referring to an "atomic artillery piece" that can shoot "conventional as well as atomic shells," the then U.S. Army chief of staff (General J. Lawton Collins) is reported to have stated: "We now have the gun, and we want our field commanders to have the capability of placing powerful atomic explosives safely and accurately close to our lines in darkness or in bad weather if it ever should become necessary." Speech at Los Angeles, May 16, 1952, reported in Los Angeles Daily News, same date. U.S. Law 35 expresses the following opinion: "The use of explosive 'atomic weapons,' whether by air, sea or land forces, cannot as such be regarded as violative of international law in the absence of any customary rule of international law or international convention restricting their employment." 247 T h e United States, the U.S.S.R., and the United Kingdom have all exploded devices in the nature of the hydrogen bomb; see press reports of such experiments by the United States at Eniwetok Atoll in the mid-Pacific, Nov. 1, 1952, and Bikini Atoll, March 1, 1954; the announcement on Aug. 8, 1953, by Malenkov, premier of the U.S.S.R., that the United States no longer had a monopoly in this field, followed by reports of the test explosion of a hydrogen bomb in the U.S.S.R. on Aug. 12, 1953; the report of the United Kingdom hydrogen bomb test, May 15, 1957, at the Christmas Island testing area in the Pacific. 848 See, for example, The Effects of Nuclear Weapons, pp. 4-5, 16-17.

376

Methods,

Instruments

of

Warfare

sun and stars. T o accomplish such a release of energy it is necessary to achieve the fusion of atomic nuclei of an element such as hydrogen. Such a fusion would transform hydrogen nuclei into another element — h e l i u m — a n d at the same time release huge amounts of energy. T h e release of energy in the atomic bomb, on the other hand, is achieved by the fission (or splitting) of atomic nuclei. A fusion of nuclei in the hydrogen bomb could only be achieved in the face of a tremendously high temperature, comparative to that found in the interior of the sun. Such a temperature can be created by exploding an atomic bomb as part of the hydrogen bomb. T h e atomic bomb would, therefore, set off or "trigger" the larger explosion of the hydrogen bomb. T h e size of the latter explosion would be determined only by the amount of heavy hydrogen (deuterium or tritium) present in the bomb. T h e hydrogen b o m b has been called an open-ended w e a p o n — the more of such materials in the bomb, the greater the explosion. Unlike the atomic bomb where there is a "critical size," the hydrogen b o m b can contain any amount of material, provided only that such material can be produced and shaped into a manageable form of weapon. T h e probable effects of the explosion of a hydrogen b o m b have been described by the scientist w h o discovered the mechanism of energy liberation in the sun, and w h o was one of the scientists chiefly responsible for the creation of the atomic bomb. 2 4 9 His conclusions may be summarized as follows. T h e power of the hydrogen b o m b would be essentially unlimited and would increase according to the amount of heavy hydrogen contained in it. Assuming for the sake of argument an energy release a thousand times greater than the Hiroshima bomb 2 5 0 the bomb would have the following effects: 1) Almost complete destruction of buildings from blast u p to a radius of ten miles. 251 2) Heat radiation in the form of flash burn which would be lethal u p to twenty miles or more. 2 5 2 3) Instantaneous nuclear radiation in the form of gamma rays and 249 Hans A. Bethe, professor of physics at Cornell University, formerly director of theoretical physics at the Los Alamos Laboratories during W o r l d W a r II. 260 T h e bomb in the example would be one of 20 megatons, i.e., have an energy release equivalent to 20,000,000 tons of T N T . T h e Hiroshima bomb, approx. 20 kilotons, was exploded in the air at about 1,850 feet. 251 See charts, fig. 6.41a, The Effects of Nuclear Weapons, pp. 248-249. 252 A 20-megaton bomb exploded in the air could cause third-degree burns up to a radius of about 25 miles. Ibid., p. 299, chart, fig. 7.47. A 1-megaton bomb will cause skin burns of various degrees to exposed persons up to 12 miles. For bombs of higher energy, the effective damage range is greater. Ibid., p. 32.

Methods,

Instruments

of

Warfare

377

neutrons whose lethal range w o u l d not be m u c h greater than those p r o d u c e d by the atomic bomb, although the hydrogen b o m b w o u l d emit a m u c h greater n u m b e r of them. 2 5 8 4)

Persistent

radioactivity

resulting

from

the

fission

products

f o r m e d in the b o m b itself and from the radioactive nuclei f o r m e d by the neutrons emitted by the bomb. a) The hydrogen bomb would produce at least as many fission products as the atomic bomb because it is set off by an atomic bomb. The amount of radioactive contamination in the bombed area would vary according to the height at which the bomb was detonated; little contamination resulting from an explosion high up, much from one detonated on the ground.254 b) The main increase in radioactive effect would be due to the neutrons emitted by the hydrogen bomb. The radioactive nuclei formed on the ground would contaminate the center of the bombed area for some time, but probably not for very long. On the other hand, the case of the bomb could be so designed as to be rendered highly radioactive by the explosion and in the ensuing disintegration its radioactive atoms carried by the wind over a large area of the bombed country might be very dangerous, especially if a very large bomb or several bombs were exploded.256 Professor A l b e r t Einstein warned: public

horizon

as probably

an

" T h e H - b o m b appears on the

attainable

goal. . . .

If

successful,

radioactive poisoning of the atmosphere, a n d hence annihilation of any life on earth, has been brought within the range of possibilities."

technical

256

It is obvious that all legal objections against the atomic

bomb

a p p l y w i t h even greater force to the hydrogen b o m b as described. H o w e v e r , it has been disclosed that a " c l e a n " hydrogen b o m b is being developed free f r o m radioactive fall-out. 2 5 7 Such a development w o u l d eliminate legal objection to this particular feature of the bomb. 263 The initial gamma radiation from a 20-megaton bomb would be lethal to a radius of 21/2 miles. Ibid., p. 352, fig. 8.39. 264 The fall-out from the thermonuclear device tested at Bikini Atoll by the United States on March 1, 1954, a burst close to the surface of a coral island, caused substantial contamination over an area of more than 7,000 sq. m. Ibid., p. 27. 255 Bethe, " T h e Hydrogen Bomb," in The H Bomb, pp. 58-62. 259 Introduction to The H Bomb, p. 14. His warning has since been reinforced by the great number of protests throughout the world against the dangers resulting merely from the testing of nuclear bombs, e.g., the petition against such testing signed by 2,000 American scientists, including 3 Nobel Prize winners, announced in the press, June 3, 1957. Cf., the evidence presented on the same day to a U.S. Senate-House Atomic Energy Subcommittee studying fall-out dangers. Associated Press dispatch, Washington, June 3, 1957. ^President Eisenhower at his news conference in Washington, June 26, 1957. Cf., the press reports of "negligible" radioactive fall-out from the British hydrogen bomb tests in the Pacific of May 15, May 31, and Nov. 8, 1957.

X INTERCOURSE BETWEEN

BELLIGERENTS

T H E NECESSITY F O R N O N H O S T I L E R E L A T I O N S War severs all normal intercourse between the belligerents. A t the national level diplomatic relations are broken off, and so far as individuals are concerned, the contending states usually forbid as a serious crime unauthorized communications, even though innocent in nature, between persons under their control and those in enemy territory. 1 For a member of their armed forces to hold such communication is deemed a yet graver offense, even though here again no treachery or espionage is alleged. 2 When enemy territory is occupied, normal communication between it and unoccupied enemy territory is also prohibited. However, although the threads which in time of peace connect civilized states are snapped between belligerents, all communication between them does not cease. Modern war, in fact, demands frequent communication between the warring powers and "hostile armies are in frequent intercourse with one another." 3 It would, indeed, be 1 See, for example, the British Trading with the Enemy Act, 1939, Sec. I (2a), which forbids "any commercial, financial or other intercourse or dealings with, or for the benefit of, an enemy." Cf., U.S. Code, Title 50, Appendix, Sees. 2, 3 (the U.S. Trading with the Enemy Act, Oct. 6, 1917, as amended). A neutral protecting power may not use its diplomatic staff in the territory of a belligerent as an intermediary to communicate information from the enemy sovereign to enemy nationals in that territory. If it desires to communicate such information, the protecting power should transmit it to the government of that belligerent, which will judge whether the information should be communicated to the enemy nationals within its jurisdiction. Hyde, III, 1703. 8 See, for example, Art. 104 (2), U.S. UCMJ; the British Army Act, 1955, Sec. 25 (2); Penal Code of the R.S.F.S.R., Art. 193 (26), applicable to the Red Army. a The War Book of the German General Staff, p. 117.

Intercourse

Between

Belligerents

379

surprising in the complex conditions of modern civilization and in view of the close links which ordinarily bind together the various parts of the globe, if the incidence of a state of war could completely isolate the belligerents from each other. T h e prime connecting link between them is, of course, the rule of international law, which governs their relationship and intercourse in time of war as well as in time of peace. Certain relations are enjoined upon the belligerents by such law, as for instance the agreements contemplated by the four Geneva conventions relating to the sick, wounded, and shipwrecked of the armed forces, prisoners of war, and civilian persons in time of war, which have been discussed earlier. 4 Further, in addition to the agreements expressly provided for by international law, the belligerents may, if they so desire and the motives of humanity or convenience move them, conclude special agreements. Such agreements may be concluded in time of peace to take effect in case of war, or during the war itself. Nonhostile contact between belligerents may be established by indirect and direct means. Negotiations may be conducted through third parties, such as the neutral protecting powers who are charged with the duty of safeguarding the interests of parties to the conflict in enemy territory; or contact may be established directly by such means as radio, or by the traditional method of a "parlementaire" under a flag of truce. 5 T h e arrangements ordinarily concluded between opposing armies through such contact fall under the headings of armistices, capitulations, passports, safe-conducts (including licenses to trade), safeguards, and cartels. Common to all nonhostile relations between belligerents is the absolute necessity for the observance of the most scrupulous good faith by the parties, both in the negotiations themselves and in carrying out any agreements which may be concluded. Not only may such relations not be used as a cover for treachery, but no advantage of any kind should be taken which is not intended to be granted ' S e e Art. 6, in each of Geneva Convs. I, II, and III, 1949, and Art. 7, Geneva Conv. IV, 1949, as well as the other provisions to which such articles make reference. " " I n current practice, radio messages to the enemy and messages dropped by aircraft are becoming increasingly important as a prelude to conversations between representatives of the belligerent forces." U.S. Law 458. In prolonged negotiations between belligerents, the parties may set aside a neutralized area for the negotiations, taking measures to define the area and secure its immunity. U.S. Law 468. C/., the prolonged armistice negotiations at Panmunjom, Korea, during the Korean war, 1950-1953.

380

Intercourse Between

Belligerents

by the other side.6 It is only upon a basis of absolute good faith that nonhostile relations between belligerents are possible at all. 7 P A R L E M E N T A I R E S A N D F L A G S OF T R U C E "A person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who presents himself under a white flag. He is entitled to inviolability, as also the trumpeter, bugler or drummer, the flag-bearer and the interpreter who might accompany him" (Article 32, Hague Regulations, 1907). Parlementaires are, in fact, the agents usually employed by armies in the field to establish open personal contact with the opposing forces. Through them communications may be made and negotiations started, ranging from minor matters to the most weighty. In the latter case it may be necessary for the parlementaires, after establishing contact, to arrange for the appointment of other agents or plenipotentiaries to carry on negotiations. Since any soldier in an army may be faced with a parlementaire from the enemy, it is necessary that all ranks should be properly acquainted with the correct treatment to be afforded to these emissaries and the mode in which they should be received. T h e parlementaire must present himself under the cover of a white flag. Traditionally this has the character of a flag of truce. T h e only legal significance of the white flag when exhibited by enemy troops is that it indicates a desire to open communication with the opposing forces.8 Frequently the purpose of the communication is to negotiate for surrender, and, therefore, the hoisting of the white flag by individual soldiers or small bodies of men in the course of an engagement has, in practice, come to have that significance. 9 T h e exact reason for raising the flag can, however, only be determined by communication with the enemy, which may be by word of mouth or by unequivocal gestures. During World War II there were precedents for the use of aircraft painted white to convey parlementaires. 10 It has been suggested that * Br.M.M.L., Pt. I l l , par. 387; U.S. Law 453; Oppenheim, II, 421. ' S e e also above, p. 319. 8 Br.M.M.L., Pt. I l l , par. 394; U.S. Rules 223; U.S. Law 458. 9 See preceding note. 1 0 Spaight, op. cit., p. 134, citing that General MacArthur directed white for the airplane carrying the Japanese representatives for surrender in August, 1945; and Admiral Mountbatten gave a similar order to the Japanese envoys w h o flew to Rangoon, August 26, 1945, in which case the planes were white with green crosses on the wings.

Intercourse

Between

Belligerents

381

aircraft of this color may be recognized as fulfilling this function and also for other occasions where immunity from attack is claimed. 1 1 Since the bearer of the flag of truce is an agent for the forces to which he belongs, he must be authorized by the commander of those forces to enter into communication with the enemy. Steps should be taken to make it clear to the enemy that the parlementaire has that authority, as by ceasing fire and other offensive action when the white flag is displayed. Where the hoisting of the white flag precedes the dispatch of the parlementaire, the latter should be sent promptly thereafter. T h e enemy is under no obligation to cease firing when the white flag is raised, 12 but fire must not be intentionally directed on the person bearing it or those near him. 1 3 If the parlementaire or members of his party are accidentally killed or wounded through presenting themselves during an engagement, there is no ground for complaint. Only in extreme urgency should he be sent while an action is being fought. 1 4 Except for such a contingency, the parlementaire should wait for a suitable moment before presenting himself to the enemy, as for example during a pause in the action, or he should skirt the danger zone. A n attempt to send a parlementaire at night would constitute a dangerous and uncertain venture, since, unless clearly illuminated, it would be difficult for the enemy to see the white flag. T h e parlementaire must carry with him as his credentials a written authorization signed by the commander of his force. 1 5 H e may be accompanied on his mission by not more than three persons, namely a trumpeter, bugler, or drummer; a flagbearer; and an interpreter. If more than three accompany him, written authorization for the extra persons should be obtained beforehand. 1 6 However, the parlementaire may proceed alone, carrying the white flag by himself, or with fewer than three companions. It is advisable that at least a trumpeter, bugler, or drummer should be with him in order to make his status known as quickly as possible to the enemy and so avoid danger to himself. T h e parlementaire's party is entitled to inviolability in the same manner as the parlementaire himself. Loc. cit. Where a flag is displayed to attacking aircraft as a sign of surrender, such aircraft are under no obligation to cease their attack where they are not in a position to accept effectively the surrender or implement it through their ground forces. See Hyde, III, 1776-1777, and authorities there cited. 13 BrM.M.L., Pt. I l l , par. 396; U.S. Rules 225; U.S. Law 461; Fauchille, II, pars. 1241-1242. 14 Br.M.M.L., Pt. I l l , par. 396; Fauchille, II, par. 1241. 15 Br.M.M.L., Pt. I l l , par. 393, 402; U.S. Rules 226, 231; U.S. Law 462. 18 Br.M.M.L., Pt. I l l , par. 400; U.S. Rules 230. 11

12

38a

Intercourse Between

Belligerents

" T h e commander to whom a parlementaire is sent is not obliged in every case to receive him. He may take all steps necessary in order to prevent the parlementaire from taking advantage of his mission to obtain information. In case of abuse, he has the right temporarily to detain the parlementaire" (Article 33, Hague Regulations, 1907). A commander has a right to decide when and where he will receive a parlementaire from the enemy. There may be cogent reasons why a parlementaire should not be allowed to approach the opposing positions at the time he presents himself. A secret movement may be in process, or it may be inadvisable to allow him to approach a besieged locality because of the state of its defenses. A commander may also declare the formalities and conditions under which he will receive a parlementaire, besides the hour and place for his appearance. However, a belligerent may not make a general declaration beforehand that he will refuse to receive parlementaires, or even that he will not receive them for a limited period. 17 A n exception to this rule arises where such measures are taken as reprisals for abuses of the flag of truce. Furthermore, the parlementaire need not be allowed to repeat his visits unnecessarily. " T h e observance of certain forms in the reception of envoys is of the greatest importance, as a parley may serve as a cloak for obtaining information or for the temporary interruption of hostilities and the like . . . These forms are also important because their non-observance, as experience shows, gives rise to recrimination and charges of violation of the usages of war." 18 T h e manner in which the parlementaire should conduct himself and the forms to be observed in his reception are as follows: T h e parlementaire is usually selected as a person well acquainted with the rules pertaining to his function, and as conversant with the language of the enemy. He is generally, though not necessarily, a soldier, usually an officer. If the outposts of the two sides are at some distance from each other he will probably proceed by vehicle or on horseback. Otherwise he may approach on foot. In either case he will approach slowly. When he arrives near enough to be seen and heard, the trumpet, bugle, or drum should be sounded or the loud-speaker used, and the white flag waved in order to attract the attention of the enemy. T h e parlementaire and his escort should now advance at a slow pace toward the enemy outpost, obeying any challenge from it and follow17

Br.MM.L., Pt. III, par. 398; U.S. Rules 829; U.S. Law 464. War Book of the German General Staff, pp. 119-120.

aThe

Intercourse Between Belligerents

383

ing any directions that may be signaled or given by any party sent out to meet them. The parlementaire will then proceed to the point of admittance indicated to him, following such route as may be specified. He has no right to choose any particular point at which to enter the enemy's lines. If the point-indicated is some distance away, he may be provided with an escort on the way. Whenever possible, it is advisable that he should be furnished with such an escort. If the enemy is not prepared to receive the parlementaire and he is signaled or ordered to retire, he must do so immediately. If he does not obey within a reasonable time, he may be fired on or made prisoner.19 While retiring in obedience to the instruction, he must not be fired on intentionally or molested in any other way. An action need not be broken off, however, in order to allow him to retire and if he or members of his party are accidentally killed or wounded in the course of withdrawal the enemy cannot be blamed.20 When the parlementaire is received, he and his party should dismount at the point indicated for admittance. While the party waits for him, the parlementaire will proceed alone on foot to the officer on duty, or the highest in command, at that post and state his mission. His party should not attempt to enter the lines with him and must obey any instructions or signals given to them by the enemy.21 If the mission deals with less important matters the officer at the place of admission may have authority to deal with them himself, but usually the matters will have to be referred to higher military quarters, in which case the parlementaire will have to wait until their decision arrives. Both sides must observe the greatest courtesy in their intercourse. Conversation between them should be highly circumspect, information should not be asked for nor given, and the discussion of military matters avoided until the proper moment arrives. The parlementaire will be treated with all the honors due to his rank and furnished with an escort where this is deemed necessary for his protection. The parlementaire cannot demand as of right to pass the outposts or to be conducted into the presence of the commanding officer.22 If his message is written it may be transmitted to the commanding officer, the officer receiving it from the parlementaire giving the latter w

Br.M.MX., Pt. Ill, par. 405. Loc. cit. U.S. Rules 231 (e); BrM.M.L., Pt. Ill, par. 406. 22 Br.MM.L., Pt. Ill, par. 407; U.S. Rules 231 (h).

x

21

384

Intercourse

Between

Belligerents

a receipt for it. If his message is verbal, he may be required to reduce it to writing or to deliver it orally to a designated person. A l l necessary steps may be taken to prevent the parlementaire from taking advantage of his mission to obtain information. 23 However, what the enemy permits to be seen may afterward be reported by the envoy to his own side. If he is allowed to enter the enemy's lines or is taken to the rear, he may be blindfolded and sent by a circuitous route. T h e parlementaire must be permitted to return to his own army with the same formalities and precautions as govern his arrival. 24 T h e same applies if he is not prepared to wait while his mission is being considered by the enemy. However, should the parlementaire or his party have seen or obtained knowledge of anything which might harm the enemy, or if their immediate departure would coincide with the movement of enemy troops and so reveal the maneuver to them, the enemy has a right to detain them until the observation made or the communication received can do no harm, but for no longer. 25 If the parlementaire abuses his position, the enemy commander has the right to detain him temporarily. In more serious cases, it is provided: " T h e parlementaire loses his rights of inviolability if it is proved in a positive and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treason" 2 6 (Article 34, Hague Regulations, 1907). T h e parlementaire may then be put on trial. Where a parlementaire, or member of his party, is detained or is the subject of any other action by the enemy, the opposing side must be informed immediately. 27 It has previously been noted that, in the absence of special terms, inviolability does not attach to deserters and subjects of a belligerent who serve in the armed forces of the enemy when they appear under a flag of truce. 28 T h e improper use of a flag of truce is particularly forbidden by Art. 33, Hague Regulations, 1907. Fauchille, II, par. 1244; Br.M.M.L., Ft. I l l , par. 411; U.S. Rules 231 (f). 26 Fauchille, II, par. 1244; Br.M.M.L., Pt. I l l , par. 412; U.S. Rules 232; U.S. Law 465. " " A l t h o u g h a parlementaire cannot in strictness commit an act of treason as regards the enemy, the word treason has been maintained in the Hague Rules because in some penal codes the instigator of an act of treason is considered an accessory—(Hague Conference, 1899, p. 147)." Br.M.M.L., chap, xiv, par. 231 n. 27 Fauchille, II, par. 1245; Br.M.M.L., Pt. I l l , par. 414; U.S. Rules 232; U.S. Law 465. 28 Above, p. gg. 23 24

Intercourse

Between

Belligerents

385

the H a g u e Regulations. 2 9 In addition to examples cited earlier, 30 it is an abuse for a force w h i c h sends a parlementaire not to halt cease fire while

its envoy

is advancing

and

and b e i n g received by

the

enemy. Similarly, it is w r o n g to make use of the flag of truce in order to make the enemy believe that a parlementaire is about to be sent when, in fact, there is n o such intention, and then use the protection accorded to the flag by the enemy to carry out operations under its cover. 3 1 T h e side i n j u r e d by abuse of the flag of truce is entitled to resort to reprisals to compel adherence by the enemy to the rules of warfare. 3 2

ARMISTICES It is sometimes convenient for both sides d u r i n g the course of a war to agree

to a m u t u a l

cessation of active military

operations

for a

period in one or more sectors. Such agreements are k n o w n generically as armistices (the term is also applied to the period of cessation of hostilities), and while

they are consensual

in nature

they are

also

governed by the laws of war. T h e H a g u e Regulations, 1907, devote six articles to the subject of armistices, a m o n g which are the following: A n armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not defined, the belligerent parties may resume operations at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of the armistice [Article 36]. An armistice may be general or local. T h e first suspends the entire military operations of the belligerent States; the second between certain portions of the belligerent armies only and within a fixed zone [Article 37]. An armistice must be notified officially and in good time to the competent authorities and to the troops. Hostilities are suspended immediately after the notification, or at the time fixed [Article 38]. It rests with the contracting parties to settle, in the terms of the armistice, the relations which may be allowed in the theater of war with, and between, the civil populations [Article 39]. A n armistice, therefore, is a temporary cessation of active hostilities arrived

at

by

mutual

agreement

between

the

belligerents. 3 3

Since

Art. 23 (f), Hague Regulations, 1907; above, p. 320. Above, pp. 320-321. 31Br.M.M.LPt. I l l , pars. 415, 416; U.S. Rules 234; U.S. Law 467. 32 Br.M.M.L., Pt. I l l , par. 417. Captured offenders may be tried for war crime. 33 In World War I, the Allied Powers recognized the Polish Army as "an autonomous, allied and co-belligerent (or belligerent) army. T h i s army was under the supreme political authority of the Polish National Committee with headquarters 29

30

386

Intercourse Between

Belligerents

the suspension of active operations is only temporary and the state of war continues between the parties during the armistice, an armistice must be distinguished from a peace treaty, which puts an end to the state of war. However, a general armistice often precedes the termination of a war by providing for a cessation of all military operations pending the negotiation of a peace treaty.34 Armistices have often been described by various other expressions, such as truces, and in the same way the various kinds of armistice have been classified under differing names. T h e Hague Regulations divide armistices into general and local, to which may be added suspensions of arms as a particular kind of local armistice. Since a general armistice formally suspends all warlike operations of the belligerents, whether military, naval, or aerial, such an armistice is both political and military. Because of its inherent political importance, only the belligerent governments or their commanders in chief have the authority to conclude a general armistice, and such an agreement must usually be ratified by the governments concerned. 85 General armistices are often negotiated by diplomatic representatives. Should a government not ratify an armistice agreed upon by its commander in chief, hostilities may at once be resumed without in Paris." However, since Germany had not recognized the belligerent status of this army, Poland could not be considered as having tacitly adhered, and, therefore, a contracting party, to the armistice agreement of Nov. 11, 1918. That armistice had been concluded between Germany and "the Allied and Associated Powers." Case concerning certain German Interests in Polish Upper Silesia (The Merits). Judgment of May 25, 1926, Perm. Ct. of Int. Justice, Series A, No. 7, pp. 27-28. This judgment stated (loc. cit.): "At the time of the conclusion of [the Armistice], Poland was not recognized as a belligerent by Germany; it is, however, only on the basis of such recognition that an armistice could have been concluded between those two Powers. . . . In the Court's opinion, there has been no subsequent tacit adherence or accession on the part of Poland to the Armistice Convention . . . the [instrument] in question makes no provision for a right on the part of other States to adhere to [it]." " A s for example, the Armistice of Nov. 11, 1918, in World War I. On termination of a state of war by the Israel-Arab General Armistice Agreements, 1949, see Selak, "A Consideration of the Legal Status of the Gulf of Aqaba," 52 A.J.I.L., 669, 681-684. For the effect of "unconditional surrenders," such as those of Germany and Japan at the end of World War II, see Br.M.M.L., Pt. Ill, par. 461. xBrM.M.L., Pt. I l l , par. 424. U.S. Law 483 omits the blanket necessity for ratification contained in the previous (1940) edition of the manual (U.S. Rules 259) and substitutes: "If an armistice contains political terms, it must be made under authorization from the governments concerned or subject to approval by them." Levie, " T h e Nature and Scope of the Armistice Agreement," 50 A.J.I.L. 880, points out (at p. 883) that the common modern practice is to provide representatives, military or civilian, at general armistice negotiations with full powers, obviating the necessity for ratification of the armistice agreement. T h e four Israel-Arab General Armistice Agreements, 1949, specifically provided they were not subject to ratification. Ibid.., p. 883, note.

Intercourse

Between

Belligerents

387

breach of faith, 36 provided due notice is first given to the enemy. A local armistice suspends operations between certain portions only of the belligerent forces and within a specified zone or radius of the general theater of war. Local armistices have also been termed partial, especially when they concern considerable sections of the belligerent forces and of the area in which the war is being waged, as opposed to mere suspensions of arms.37 Examples of local or partial armistices are those concluded for the military forces only, for the naval forces only, for the cessation of hostilities in the colonies only, and between some but not all belligerents engaged in the war. A commander in chief is presumed to be competent to conclude a local armistice. Ratification of the agreement by the respective governments is not necessary in this case, although such ratification may be specially provided for in the agreement. If the commander has exceeded the powers delegated to him by his own government in concluding such an agreement, the validity of the agreement is not affected as far as the enemy is concerned, although the commander would be answerable to his own government. A minor form of local armistice is the suspension of arms, which is an armistice of brief duration generally concluded between local commanders. Its purpose is to arrange some pressing matter of local military importance, such as to collect the wounded, bury the dead, exchange prisoners, permit conferences or enable a commander to communicate with his government or superior officer to obtain instructions. Such agreements are often arrived at between commanders of detachments. Every commander of a force is presumed in relation to the enemy to be competent to conclude a suspension of arms, and no ratification by superior authority is required. A suspension of arms applies only to the troops commanded by the officers between whom the agreement is made. Generally, in concluding an armistice an officer can only be presumed to have authority to deal with matters which come under his command. Even in its widest sense, an armistice can only arrange matters which fall within the conduct of the war. Matters which involve permanent changes in political relationships, as for instance the permanent cession of territory, do not come within the ambit of an armistice, but should properly be dealt with in a peace treaty. N o special form is laid down by international law for an armistice agreement. This must be decided by the parties. A n armistice agree* BrMM.L., Pt. Ill, par. 424. 87 Ibid., par. 425; Oppenheim, II,

434.

388

Intercourse

Between

Belligerents

m e n t may be oral or written, but it is obvious that since this concerns an arrangement between hostile parties it is eminently desirable to reduce the agreement to w r i t i n g for the purpose of m a i n t a i n i n g a record a n d a v o i d i n g unnecessary disputes regarding it. I n fact, except in the most m i n o r cases of suspensions of arms, w r i t i n g m a y be regarded as a necessity for armistice agreements. F o r the same reasons, the agreement should be formulated w i t h the greatest possible precision and clarity, advisably in the languages of b o t h sides, each side retaining copies in all languages used. T h i s is all the more desirable because an armistice agreement must b e observed w i t h the utmost strictness and neither side should attempt to place an arbitrary m e a n i n g on any of its provisions. T h e parties are b o u n d by the agreement as soon as it is signed, 3 8 or if it is an oral agreement as soon as it is complete. T h e various provisions of the agreement come into effect at the times agreed o n in the terms. It has already been noted that ratification is necessary for certain kinds of armistice. T h e armistice must be notified officially and in good time by the parties to the authorities competent to take action u p o n it a n d to the troops. W h e r e the armistice provides for the immediate cessation of hostilities, the hostilities are suspended immediately after such notification, otherwise hostilities cease at the time fixed by the agreement. 3 9 Different times for the b e g i n n i n g of the armistice may be fixed for the different sectors. A notification of armistice proceeding f r o m the enemy need not be believed, since this may be a ruse. 40 T h e armistice begins at the m o m e n t it is signed, unless another time is agreed u p o n for the commencement. It is, therefore, advisable that the h o u r and date w h e n the signing of the agreement was completed should be recorded u p o n it. A n armistice may be for a definite or indefinite period. If its duration is not defined, then a party may resume operations at any time provided the notice agreed u p o n has first been given; or, if n o specific notice has been laid d o w n , sufficient notice has been given 38 See W . . . et M . . . v. L'État (1920), T r i b u n a l S u p é r i e u r of C o l m a r , France, H a c k w o r t h , V I , 418; Ann. Dig., 79/9-/922, Case N o . 304, w h i c h related to the armistice of N o v . 11, 1918. T h e court h e l d that G e r m a n y was b o u n d f r o m the time of signature to carry o u t her engagements u n d e r the armistice, even t h o u g h the armistice provided that hostilities were to cease six hours a f t e r the signing. T h e G e r m a n military authorities were, therefore, h e l d n o t to retain f u l l capacity to sell certain unsawed w o o d d u r i n g the period of six hours. T h i s w o o d came u n d e r the description of military e q u i p m e n t w h i c h A r t . 6 of the Armistice Convention stipulated should be h a n d e d over to the Allies. 30 A r t . 38, H a g u e Regulations, 1907. >0 Br.M.M.L., chap, x i v , par. 272.

Intercourse

Between

Belligerents

389

so that the resumption does not take the enemy by surprise. 41 If the duration of the armistice is fixed, and a further period of notice is not required by the agreement, then hostilities may be resumed without notice when the term of the armistice expires. W h e r e the armistice is for hours, then the agreement should state their exact number. A n armistice for a number of days expires at midnight on the last day, no matter what time it began on the first day. A n armistice for a complete number of days terminates at the same hour on the last day as it began on the first day. 42 T h e r e appears to be no general agreement as to whether an armistice from one specified date to another includes the first day or the last, or indeed, either. 43 O n e opinion holds that an armistice begins on the first day named and expires at the midnight preceding the beginning of the last day named, 44 but this is refuted by others. T o avoid misunderstandings, the exact hour and date of both beginning and end of the armistice should always be stated in the agreement. It is also suggested that, especially in a short armistice, the parties should agree on some signal to indicate its beginning and ending, as by each party raising a flag and keeping it raised until the armistice ends, then lowering the flags simultaneously. 45 A n armistice may be prolonged and amended by agreement between the parties. D u r i n g the armistice, the troops governed by the agreement must not engage in any offensive measures, or in any actions or movements which the enemy might have been able to prevent if there were no armistice. N o t h i n g must occur which could be construed as a continuation of hostilities, and generally the status quo must be observed except so far as any variation is introduced by the terms of the agreement. Such actions, therefore, as attempts to gain ground or to push on with siege works are forbidden. 4 6 O n the other hand, the forces involved are permitted to do everything, not expressly forbidden, which betters or strengthens their Art. 36, Hague Regulations, 1907; see also Br.MM.L., Pt. Ill, par. 437. Br.MM.L., Pt. Ill, par. 440, n. 2. Fauchille, II, par. 1251, states that the days of an armistice must be counted from hour to hour. 43 See Fauchille, II, par. 1251; Rolin, I, par. 431. " T h i s is the view expressed both in Br.M.M.L., chap, xiv, par. 279, n. 7; and The War Book of the German General Staff, p. 145. 45 Br.M.M.L., Pt. Ill, par. 441. 46 Ibid., par. 443; Fauchille, II, par. 1253. In regard to a general armistice, Levie, op. cit., at pp. 886, 888, takes the view that, according to the weight of reasoning and practice, during such an armistice belligerents must refrain from doing only those acts which are expressly prohibited by it. On prosecutions for war crimes, see below, p. 593, n. 30. 41

42

3go

Intercourse Between

Belligerents

position in anticipation of the resumption of hostilities after the armistice expires. Thus, for example, troops may be trained, fresh forces recruited, arms and ammunition manufactured, food supplies brought up, troops shifted within the lines, and reinforcements obtained. Whether fortifications may be repaired or a besieged fortress revictualed are matters which should be settled in the armistice agreement, since the legal position is doubtful in the absence of agreement. 47 Espionage need not be discontinued during the armistice, and such activities remain governed by the general laws of war. If no provision is made in the armistice agreement regarding the relations in the theater of war between the belligerent forces and the civil population and between the civil populations themselves,48 each contracting party continues to exercise the same rights as before the armistice, in other words, as though there were no armistice.49 Among such rights is that of preventing or controlling intercourse with inhabitants inside the enemy's lines. T h e situation in occupied territory during an armistice remains unchanged from that during hostilities.80 It will be recalled that it is expressly provided by Articles 7 and 47 of Geneva Convention IV, 1949, that no agreement shall adversely affect the situation of protected persons in occupied territory, nor restrict their rights under the convention. 51 T h e armistice agreement besides delimiting the lines occupied by the opposing troops should advisably provide for a rteutral zone between the two forces. This zone should be sufficiently wide to prevent conflict between them, and no persons belonging to those forces should be allowed to enter the zone except as parlementaires or as members of their parties, or by special agreement for such purposes as the collection of the dead and wounded. If necessary, territory should be evacuated in order to create the neutral zone. Such lines and zone may be marked on maps attached to the armistice agreement. In a suspension of arms it may be sufficient to fix a line of demarcation between the two forces instead of a zone. Provision should also be made in armistice agreements for communication between the two sides, as by a fixed road. A n y serious violation of the armistice b y one of the parties gives the other party the r i g h t of denouncing it, and even, in cases of urgency, of recommencing

hos-

tilities immediately [Article 40, H a g u e Regulations, 1907]. " S e e Fauchille, II, pars. 1254-1256; R o l i n , I, pars. 425-428. " S e e A r t . 39, H a g u e Regulations, 1907, above, p. 385. " R o l i n , I, par. 429. M

Br.M.MX.,

51

See above, pp. 160, 267. N o t e the provisions of Art. 134, Geneva C o n v . IV, 1949,

Pt. I l l , par. 447.

above, p. 192, regarding the return and repatriation of

internees.

Intercourse Between Belligerents

391

A violation of the terms of the armistice by individuals acting on their own initiative only entitles the injured party to demand the punishment of the offenders and, if there is occasion for it, compensation for the losses sustained [Article 41, Hague Regulations, 1907].

An armistice, like all nonhostile relations between belligerents, demands the observance of the most scrupulous good faith by the parties. 52 T h e agreement must be strictly observed not only in the letter but also in the spirit. A serious violation of the armistice by one of the parties gives the injured party the right to denounce the armistice and, where giving formal notice of the termination would involve delay redounding to the substantial advantage of the violator, of recommencing hostilities with or without denunciation. However, except in the most urgent and serious cases, there should always be a delay between denunciation and resumption of hostilities. It would be an act of perfidy to denounce an armistice on a specious pretext for the purpose of catching the enemy off guard. 63 Violations include a deliberate advance, seizure of any point outside a party's lines, pushing works beyond the line of demarcation between the two forces, or utilizing the armistice to withdraw troops from an unfavorable position commanded by the enemy, but not of troops out of sight of the enemy unless this has been expressly forbidden. 54 In general, any violation of an express condition of the armistice would constitute a grave breach. Where violations of the armistice are committed by individuals, whether soldiers or civilians, acting on their own initiative, the party to which they belong cannot be held responsible for their actions, except to the limited extent provided by Article 41 above, and there is no justification for denunciation of the armistice and a renewal of hostilities. However, the guilty persons should be punished by their own party and the injured party is entitled to demand such punishment, together with compensation for any losses sustained.55 63 See pp. 379-380. Note the use which has been made in recent years of neutral military commissions to supervise armistices, e.g., the armistice of June 12, 1935, between Bolivia and Paraguay; Hyde, III, 1790-1791; the armistice of July 87, 1953, between the United Nations forces and the North Korean and Chinese forces; while the mixed armistice commissions which supervise the Armistice Agreements, concluded between February and July, 1949, between Israel and the Arab states, contain representatives of the United Nations. Cf„ U.S. Law which also states the desirability of setting u p consultative machinery in the form of commissions, composed of representatives of the opposing forces, to supervise the implementation of an armistice agreement. 63 Fauchille, II, par. 1258; 5r.Af.MX., Pt. I l l , pars. 455, 458, 459; U.S. Rules 867. H B r . M . M X . , chap, xiv, par. 295, and note. M

F a u c h i l l e , I I , p a r . 1258; Br.M.M.L.,

P t . I l l , par. 457; U.S. Rules 270.

392

Intercourse

Between

Belligerents

O n the other hand, a party may be held to be fully responsible for the acts of individuals if it is shown to have favored or approved their behavior. T a c i t approval of violations committed by individuals may be inferred from a persistent failure to punish such infractions. Even though a party does not approve, yet is demonstrably powerless to prevent repeated abuses by individuals, the injured party may have no other recourse, after due protest, than to denounce the armistice. Troops captured while breaking an armistice must be treated as prisoners of war. Should the breach have been committed by ignorance or accident, it is usual to return the prisoners to their own side. 56 Officers and their troops who commit acts of hostility in ignorance of the fact that an armistice has been concluded are not punishable for those acts, but prisoners and property taken must be restored. 57 Neither the state nor particular individuals incur any responsibility for injury to life and property inflicted in such actions, unless they have been guilty of negligence or bad faith in announcing the armistice. In the latter cases, the party responsible, whether the state or an individual, may be held accountable. 58 Soldiers who break an armistice on their own initiative and are captured while so doing may be tried and punished by the captor authorities for the offense, as may subordinate officers acting on their own initiative who order such violations. 59 However, it is usually more convenient to hand them over to their own commander for punishment. 60 T h e r e is no obligation to return deserters who come over during an armistice. 61 CAPITULATIONS T h e law on this topic is chiefly governed by the customary rules of war since the Hague Regulations contain only the following article on this subject: Capitulations agreed upon between the contracting parties must take into account the rules of military honor. Once settled, they must be scrupulously observed by both parties [Article 35, Hague Regulations, 1907]. Br.MM.L., Pt. I l l , par. 448. Fauchille, II, par. 1252. 68 Br.M.M.L., Pt. I l l , par. 443. 68 U.S. Rules 270. «'Br.M.M.L., Pt. I l l , par. 457. 61 Br.MM.L., Pt. I l l , par. 448. 56 57

Intercourse Between Belligerents

393

Capitulations are agreements between commanders of opposing forces for the surrender of a body of troops, of a fortress or other defended place, or of a particular area of the zone of operations. In the last case, they are also sometimes termed evacuations. Capitulations are surrenders upon specified terms, as opposed to simple surrenders, without conditions. 62 T h e intention to capitulate is customarily indicated by the display of a white flag, following which negotiations are initiated by means of parlementaires. However, the opposing force may take the first step by inviting the surrender. A commander is presumed, so far as the enemy is concerned, to have authority to agree to a capitulation. Whether he has actually exceeded the authority delegated to him by his own government in making such an agreement is a matter between him and his government 63 and does not affect the validity of the agreement in relation to the enemy. However, his presumed authority does not extend beyond the forces and territory under his command. For the avoiding of misunderstandings, the capitulation agreement should always state to what extent detached forces and outlying defenses are included in the surrender of the main body. 64 In the same way, the commander granting conditions of capitulation cannot be presumed to be competent to grant terms beyond those which can be carried out by the forces under his command. It is, therefore, important for both parties before concluding a capitulation to make sure that the opposing commander has the necessary authority. Since capitulations are purely military agreements and relate only to the conflict then in being they should not contain political terms or those which would confer rights or duties extending beyond the period of the war. For instance, a commander cannot be presumed to have authority to agree to the permanent cession of territory, or that the troops surrendering will never again bear arms against the forces of the opposing state.65 112

A l s o termed "unconditional surrenders." See note 34, above.

63

See, for example, Sec. 24 (1 a, 2), British A r m y Act, 1955; A r t . 99 (2), U.S. U C M J ;

for provisions of the French military code, see Fauchille, II, pars. 64

Br.M.M.L.,

Pt. I l l , par. 466; Trial

of Cassation, L.R.T.W.C., 86

BrM.M.L.,

Pt.

Ill,

of Rauter

1259-1262.

(1949), Netherlands Special

Ct.

X I V , at p. 125. par.

464;

Fauchille,

II,

par.

1263;

Rolin,

I,

par.

413,

points out that it is not always easy to establish a distinction between engagements of a political character and those not of this character. I n Trial pp.

of Rauter,

125-126, the court held that the surrender of the Netherlands

Germans

on

May

14,

1940,

by

the

Netherlands

commander

in

above,

forces to chief,

the

General

Winkelman, and the Instrument of Capitulation signed b y h i m on the following

Intercourse

394

Between

Belligerents

A n agreement containing stipulations in excess of the authority which the enemy may validly assume the commander to have can only be binding if ratified by the governments of both parties, 66 in other words it is voidable (may be affirmed or repudiated). Otherwise no ratification of a capitulation agreement is necessary unless expressly required by the terms of the agreement. Where the surrender of a body of troops or a place is arranged by the political authorities of the belligerents rather than by the military, the parties can, of course, introduce political stipulations. Capitulation agreements in excess of the evident authority of a contracting officer and made in the mere hope of subsequent ratification by his government are known as "sponsions." T h e parties should beware of being placed in a disadvantageous position as the result of nonratification. T h e rules concerning capitulations apply equally to the surrender of small detachments or even of individual soldiers where the surrender is made upon stipulated terms.87 N o specified form is laid down for a capitulation agreement. It may be oral or in writing, but just as in armistices the agreement should, wherever possible, be in writing to avoid disputes and to maintain a record. T h e terms should be precisely stated, avoiding ambiguity. T h e details of the surrender, including those of time and procedure should allow of no misunderstanding. Usually the terms are set out in a series of articles, while detailed regulations for carrying out the agreement and such matters as local administration are attached to the convention and in an appendix. Naturally, the actual terms are a matter for bargaining between the two parties and may vary widely in different situations. In all circumstances, however, the Hague Regulations require that the day (May 15) "contains not a single provision which lays obligations on the Netherlands population with regard to the occupant or which would oblige the Netherlands government to anything more than to acknowledge this happening as a lawful capitulation" (p. 125). T h e court also distinguished between a capitulation in the nature of an agreement, and one in the nature of orders to the defeated force from the victorious force. T h e court emphasized that in this case the commander in chief of the Netherlands forces had ordered the surrender without any agreement with the Germans, and that the capitulation instrument was signed subsequently (p. 126). T h e court also made it clear with regard to territory occupied as a result of a capitulation that once the terms of the capitulation have been carried out, and the state of war passes into one of military occupation, the capitulation does not continue to govern the relationship between the occupant and the occupied territory, which then comes under the rules of war governing a military occupation (p. 126). 68 67

Br.M.M.L., Br.MM.L.,

Pt. I l l , par. 464. Pt. I l l , par. 471.

Intercourse

Between

Belligerents

395

contracting parties must take into account the rules of military honor. 68 This means that the terms must contain nothing which is personally degrading to the surrendering force 89 or impose conditions such as those which would require the troops to fight against their own country or perform acts which their country's laws or their terms of service forbid. 70 A capitulation agreement usually includes the following terms: 71 i) Provisions for the cessation of hostilities if these have not already been suspended during the preliminary negotiations. T h e date, hour, and minute of cessation should be specified. ii) Determination of the fate of the capitulating troops and of any persons who have assisted them. In all circumstances the captured troops must, at least, be treated as prisoners of war, 72 whether or not the surrender is unconditional, or "at discretion" as it is sometimes termed. However, the terms of the capitulation may provide milder treatment than captivity for those troops. It may be agreed, for instance, that the defeated force simply evacuate the place or territory. If withdrawal is allowed with "honors of war," this is usually construed to include the right to march with colors displayed, drums beating, bayonets fixed and swords drawn, although the precise details of what is intended should be stated in the agreement. 73 Other conditions might provide that the troops shall be released on parole, that officers shall be entitled to retain and wear their side arms or be entitled to other privileges during captivity. T h e surrender might even be made conditional on the situation being changed by the arrival of a relieving force within a specified time. 74 Where the inhabitants have assisted the surrendering troops either as combatants or in other capacities, the capitulation may provide that they shall not be punished by the victors. iii) T h e disarming of the troops and the place, the handing over of forts, arms, and material, and the locating of any mine defenses. Such matters may often conveniently be dealt with by committees composed of members from both forces. It may be stipulated that the capitulating force should give a pledge to guarantee that it will carry out its part of the capitulation, as by handing over immediately particular forts or positions. Art. 35, above. Fenwick, p. 579. 70 The War Book of the German General 71 See also U.S. Law 475. 72 Art. 4, Geneva Conv. Ill, 1949. 78 Br.M.M.L., Pt. Ill, par. 475. 74 Ibid., par. 318. 88 ,9

Staff,

pp. 138, 139.

396

Intercourse Between

Belligerents

A commander who foresees that he will be compelled to surrender may justifiably destroy his fortifications, arms, and stores to prevent them from falling into enemy hands, providing he does so before he signs the capitulation. However, once the capitulation is signed he has no right to engage in any such destruction, damage, or injury, unless the conditions of the agreement allow him to do so. 75 iv) Arrangements for the care of the sick and wounded. v) T h e evacuation and taking over of the surrendered place or territory. Details of time and arrangements should be fixed with precision. In the conditions for handing over the civil administration it may be stipulated that civil officials are free to leave and that they may take with them the civil archives. T h e defeated force may be allowed to take with it the military archives. Special provision may also be made to safeguard the rights, position, and property of the civil population. T h e Hague Regulations require that once the terms of the capitulation are settled they must be scrupulously observed by both parties. A serious breach of the agreement entitles the injured party to renew hostilities immediately without further notice, may justify reprisals, constitutes an international delinquency on the part of the belligerent government which authorizes it, and a war crime on the part of the responsible persons, if committed on their own initiative. 76 75 The Scuttled U-Boats Case (Trial of Grumpelt) (1946), Brit. Mil. Ct., Germany, L.R.T.W.C., I, 55. 76 Oppenheim, II, 433. In Trial of Eisentrager (alias Ehrhardt), et al. (1947), U.S. Mil. Commission, Shanghai, China, L.R.T.W.C., XIV, 8, the accused, German nationals, were charged with violation of the German unconditional surrender constituted by the "act of military surrender" dated May 8, 1945, and the Declaration Regarding the Defeat of Germany, June 5, 1945, by continued military activity in association with the Japanese armed forces against the United States. T h e following points appear from the conviction: (1) "It was sufficient proof of mens rea [guilty intent] on the part of the accused if it was proved that the accused were aware of the surrender and thus must have been aware of the fact that their activities were violations of its terms. How these terms had been communicated to them is immaterial" (p. 16); (2) "There can be no doubt that the law is settled on the point that members of the armed forces of a belligerent whose entire armed forces have surrendered must abstain from all hostilities wherever they may find themselves on the date of such surrender and that by cooperating with an allied belligerent and a fortiori by joining the forces of such belligerent, they violate the terms of surrender and thus commit a war crime" (p. 21); (3) All the accused were civilians, although some were engaged in a German military agency. However, all nationals of the surrendered belligerent, not merely members of its armed forces, are bound by the terms of surrender and "all such nationals must wherever they find themselves at the time of such surrender refrain from activities which are either considered to be military activities or contrary to the terms of the surrender" (pp. 21-22); (4) T h e court stated: "A careful reading of the (surrender) instrument and consideration of its implications can lead to but one inescapable conclusion, namely that the armed forces of Germany had been overwhelmed, that

Intercourse

Between

Belligerents

397

Where a party formally refuses to carry out any term, the other party may denounce the whole agreement. An agreement obtained by breach of faith may be canceled. Where a capitulation is signed in ignorance by the parties that a general armistice has already been concluded the capitulation is null and void, unless the armistice was only to come into effect from the time the different forces were notified. 77 CARTELS, M I L I T A R Y PASSPORTS, SAFE-CONDUCTS, A N D SAFEGUARDS i) T h e term "cartel" is used in a wider and a restricted sense. In its wider sense it means an agreement between belligerents to allow some nonhostile intercourse which the war would otherwise prevent, as for example communication by post or trade in certain commodities. In a strictly military sense, a cartel is an agreement between belligerents for the exchange of prisoners of war. A cartel ship is one engaged in the exchange of prisoners of war or which carries official communications to the enemy. A ship of this nature is inviolable, but must not engage in hostilities, nor be armed except for a signal gun. 78 ii) A commander 70 may issue documents permitting particular enemy persons or neutrals, or the property of such persons, to travel unmolested within or through the area occupied by his forces. Such documents are termed military passports or safe-conducts and these terms have often been used interchangeably. However, the name applied to the document is not important provided the terms on which the document is issued are explicitly stated in it. Such documents are Germany as a nation had been defeated and that as a nation it was surrendering unconditionally to the will of the victor. In doing so the instrument at once became b i n d i n g on all persons. T h i s was a capitulation not of a mere fortress or a mere army or two; it was unconditional of all forces under G e r m a n control and carried with it all people of the G e r m a n nation" (p. 22); (5) W i t h one exception all accused possessed diplomatic status, but "it seems that the court h e l d by implication that their status did not protect them in any way if they were guilty of a violation of the terms of surrender" (p. 22). For w h a t the court regarded as military activities, see at p. 22. T w o cases of breach of armistice or capitulation by soldiers of a capitulating force w h o continued hostilities in behalf of rebel forces fighting against the l a w f u l authorities were Trial of Mizuo Katsuno (1947), and Trial of Minoru Hatada (undated), both cases tried b y T e m p o r a r y Courts Martial in the Netherlands East Indies. Convictions were recorded in each case. L.R.T.W.C., X V , 132. 77Br.M.M.L., 78

Br.M.M.L.,

Pt. I l l , par. 485; H y d e , III, 1781, 2058. Pt. I l l , par. 498; H y d e , III, 1782.

O r , of course, his superior authorities.

398

Intercourse

Between

Belligerents

good only within the area occupied by the army whose commander has granted them. 80 A military passport may be described as a document issued under the authority of a commander of belligerent forces enabling named persons already within the area occupied by his forces to travel unmolested within that area, subject to the conditions named in the passport. A safe-conduct is a similar document issued to persons outside the area occupied by the commander who grants it, enabling them to enter, pass through, or remain in that area, as for example, to enter or leave a besieged place. A safe-conduct may also be issued for goods, in which case the goods specified may be carried unmolested to or from designated places, according to the conditions laid down in the document. 81 Such safeconducts are also described as licenses or licenses to trade. 82 Where an enemy subject is granted a license to trade, his goods are protected from seizure so long as he complies with the terms of his license. T h e terms "pass" and "permit" are often used in place of military passport and safe-conduct. However, the two former terms are sometimes used to indicate the contrast between a general permission (pass) and a permission confined to a particular occasion (permit). 83 Passports and safe-conducts for individuals are nontransferable. T h e y extend only to the persons named and do not include their companions unless they are also named. A n exception to this is stated to be the case of diplomatists of neutral states, whose usual entourage is assumed to be included even though the members are not specifically named. 84 O n the other hand, a safe-conduct for goods may be transferred from one person to another, unless it is specified in the document that a particular individual is to accompany the goods. T h e goods covered by the transferred safe-conduct will remain the same. Documents of the nature under discussion issued by arrangement with the enemy, as in all nonhostile intercourse with the enemy must be honored by strict observance in good faith, according to the terms of the arrangement. 85 T h e documents are binding not only on the issuing authority but on his successors. Arrangements concluded with neuFauchille, II, par. 1246. See Art. 111, Geneva Conv. IV, 1949, for the granting o£ safe-conducts for mail and relief shipments provided for by the convention. 83 Fauchille, II, par. 1246, U.S. Rules 240; U.S. Law 456a, where the term "licence to trade" is applied to "a continuing right for a prescribed period, or until further orders, to engage in the prescribed trade." 83 BrM.M.L., Pt. Ill, par. 490. 84 The War Book of the German General Staff, p. 140. 86 Above, pp. 379-380. 80 81

Intercourse Between

Belligerents

399

tral powers for the granting of such documents must also be strictly observed. However, the issuing authority or his superiors are at any time entitled to revoke passports or safe-conducts for good reasons connected with the military situation, and are not bound to state such reasons. Yet such revocation must never be used for the purpose of securing the persons or goods covered by the documents, and where revocation is made they must always be granted a safe exit. A document granted for a limited period is valid only during that period. 86 Passports or safe-conducts may also be revoked where the persons covered by them violate their terms or are guilty of other wrongful behavior. Should the circumstances warrant it, as for example an offense against the security of the state, the person suspected may be detained and his case investigated. 87 iii) T h e term "safeguard" is used in two related senses. T h e first describes a detail of troops posted by their commanding officer with orders to protect a person or persons or certain property. Where such a guard is posted by arrangement with the enemy, those who compose it are inviolable by the enemy, and if the place where they are performing their duty is occupied by the enemy, the components of the safeguard, together with their baggage and arms, must be returned to their own forces as soon as military exigencies permit. Bona fide safeguards who have been posted without previous arrangement with the enemy should, nevertheless, be treated in the same fashion. 88 "Safeguard" is also used to mean a written order by a commander granting protection to an enemy subject or enemy property, and left with the persons concerned or posted on the property. 89 In it an advancing commander usually requests the commander succeeding him to continue the protection granted. Forcing a safeguard is punishable as a serious crime.90 Br.MM.L., chap, xiv, par. 333; U.S. Rules 239. Br.MM.L., chap, xiv, par. 334; U.S. Rules 239. 88 Fauchille, II, par. 1247; Br.MM.L., chap, xiv, par. 336; U.S. Rules 242. 89 Such a safeguard is also termed "dead," as contrasted with a "live" safeguard where a guard is posted. Fauchille, II, par. 1247. M See, for example, Art. 102, U.S. UCMJ; Sec. 6 (26), British Army Act, 1928; cf. Sec. 29 (3), British Army Act, 1955. w

87

XI M E A N S OF

ENFORCEMENT

OF T H E L A W S OF W A R

IN G E N E R A L The nature of the sanctions for the enforcement of the laws of war was briefly indicated in the introductory part of this work. 1 The present part will discuss in greater detail the means for securing that the laws of war are obeyed both by the states and persons engaged in the conflict, and that infractions are punished. The fact that infringements of the laws of war have been committed by elements of the forces of a belligerent does not, of course, mean that the belligerent necessarily approves of such breaches of legitimate warfare. Such a belligerent should, wherever possible, be afforded an opportunity of repairing or repressing breaches for which its forces are responsible before other means of enforcement are adopted.2 The attention of the belligerent should, therefore, be drawn to the violations by a complaint transmitted to the opposing party to the conflict. Such a complaint could be sent directly by a parlementaire under a flag of truce, or through the intermediary of a neutral state prepared to lend its good offices. Certain rules governing warfare expressly require belligerents to prosecute persons, including members of their own forces, who offend against those rules. Such are Article 56 of the Hague Regulations, 1907, which prohibits seizure, destruction, or willful damage of certain types of property in occupied territory;3 and Articles 4g and 50 1

Above, pp. 9 - 1 1 . Cf., the inquiry procedure concerning alleged violations of the Geneva Conventions of 1949, laid down in an article common to the four conventions—Art. 52, Conv. I; Art. 53, Conv. II; Art. 132, Conv. Ill; Art. 149, Conv. IV. "Above, p. 289. 2

404

Means

of

Enforcement

of Geneva Convention I, 1949,4 which provide for the punishment of offenders against that convention, and correspond to similar provisions in the other three Geneva Conventions of 1949. However, the duty of a belligerent to punish members of its forces who commit offenses against the laws of war is plain 5 whether or not a particular rule contains a provision to that effect. Obviously, a belligerent is responsible for the manner in which its forces conduct warfare. This was stated in so many words by Article 3 of Hague Convention IV, 1907, to which the Hague Regulations are annexed: "[The belligerent party] shall be responsible for all acts committed by persons forming part of its armed forces." 6 T h e same article also requires the payment of compensation in a proper case: "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation." In other words, where damage is caused as a result of the violation of the rules of war, the belligerent responsible must pay compensation. This principle is considered to apply to any violation of the rules of warfare, not only to the rules contained in the Hague Regulations, 1907, and also whether the damage is inflicted on the enemy and his nationals or on neutrals. 7 A n obligation to pay compensation is also implicit in an article in each of the four Geneva conventions of 1949, which states: " N o High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article." 8 T h e breaches referred to are the grave breaches specified in each convention. 9 Besides, Article 24 (5) of the Hague Rules of Air Warfare, 1923, provides that a belligerent state is liable 4

5

Cf., £7.5. Law 507b.

Above, pp. 92-94. See also Art. V, Genocide Conv., 1948. 8 "It should further not be forgotten that a belligerent has a corresponding duty to punish its own subjects who commit war crimes. In the late war [World War II] there were well-known cases in which British personnel were tried by British courts for war crimes committed against the enemy." Maxwell Fyfe, British attorney-general during World War II, in foreword to The Peletis Trial (Trial of Eck, et al.) (1945), Brit. Mil. Ct., Germany, WCT Series, I, xvi. See also Art. 29, Geneva Conv. IV, 1949. 7 See Oppenheim, II, 463. See Hyde, II, 968, for discussion of the responsibility of a belligerent for acts of private individuals and bandits unattached to the armed forces or any public service, who perpetrate lawless acts as a consequence of a state of war. According to Hyde, responsibility would appear to depend on the failure of the belligerent "to make diligent use of the means at its disposal to deter misconduct or punish offenders." 8 See Art. 51, Conv. I; Art. 52, Conv. II; Art. 131, Conv. Ill; Art. 148, Conv. IV. See also explanatory footnote, above, p. 94, n. 97. 9 See Arts. 50, 51, 130, and 147, of Geneva Convs. I, II, III, and IV, respectively.

Means

of

Enforcement

to pay compensation for injuries to person or property caused by the violation by its officers or forces of the provisions of the article concerning aerial bombardment. 1 0 A recent example of the obligation of a state to pay compensation for war crimes for which it is responsible is the agreement on reparations signed at L u x e m b o u r g Federal Republic of Germany

on September

10,

1952, between

the

(Western Germany) and Israel. T h i s

agreement, together with the appended protocols, provides for the payment by Western Germany to Israel of 3,450,000,000 marks ($822,000,000 or £287,000,000) to make good, within the limits of its capacity, the material damage caused by the "unspeakable criminal acts [which] were perpetrated against the Jewish people during the National Socialist régime of terror."

11

Provision was also made here 12

and in the contractual agreements between Western Germany and the three occupying powers, signed at Bonn, May 26, 1952, 13 for individual compensation and restitution to persons persecuted because of their political convictions, race, faith, or ideology. Where a belligerent does not, of its own accord, take steps to remedy breaches of the laws of war committed by its forces, or deliberately engages in illegitimate warfare, obedience to the laws of war may be compelled by several means. Such means, it will be recalled, fall into two main groups—those which come under the heading of retaliatory force and punishments, and those which are the expression of the force of world opinion. 10 See Appendix VI, below. T h e Netherlands delegation to the commission of jurists at the Hague which framed the Rules of Air Warfare, 1923, proposed: " T h e belligerent Party, who, intentionally or through negligence, violates the provisions of the present rules is liable to pay compensation in case damage is caused as a result of such violation. Such Party will be responsible for all acts committed by members of his armed forces." T h e proposal also provided for arbitration in case the dispute was not otherwise settled. " T h e Commission approving the principle of indemnity decided to incorporate the proposal in its general report, so as to bring it to the attention of the governments." "General Report" of the Commission of Jurists at the Hague, 1923, in Moore, International Law and Some Current Illusions, pp. 287-288. T h e same report also contemplated "the imposition of punishment on persons who are guilty of breaches of the laws of aerial warfare." Ibid.., p. 288. u Preamble to the agreement. For the agreement and appended protocols, see U.N. Treaty Series, CLXII, 205 f., Reg. no. 2137. u Protocol I. 13 See, in particular, chaps. 3 and 4, Convention on the Settlement of Matters Arising out of the War and the Occupation, one of three related conventions attached to the Convention on Relations between the Three Powers and the Federal Republic of Germany, 1952. U.S. Senate, 82d Cong., 2d sess., Executives Q and R (June 2, 1952), pp. 43-53. T h e three related conventions are commonly termed the German Contractual Agreements. See also below, pp. 588-589. T h e Three Powers are the United States, the United Kingdom, and France.

406

Means of

Enforcement

T h e latter consist in enlisting the pressure of world opinion to compel the offending belligerent to conform with the rules of warfare. Therefore, besides using a neutral state as a medium for transmitting a protest, complaints may be lodged with neutral states to make them aware of the illegalities committed by the enemy, since all states, whether parties to the conflict or not, have an interest in the maintenance of international law. Such complaints may request the good offices,14 mediation, or even intervention of the neutral states to secure compliance with the laws of war, or may have the effect of inducing neutral states to take such steps on their own initiative. 15 Even apart from diplomatic action, the publicizing in neutral countries of illegalities on the part of a belligerent may in itself cause the offending belligerent to remedy those evils for fear of alienating neutral opinion. A belligerent cannot ordinarily afford to ignore world opinion, whether from the standpoint of not adding to its enemies or from the adverse effect which knowledge of universal condemnation may have on the morale of its own forces. While the use of good offices and mediation by a neutral state are friendly acts, intervention stands on a different footing. Intervention is, in effect, an attempt to compel a belligerent to comply with the dictates of the intervening state, which means in the present case compliance with the laws of war. Obviously, only a neutral state more powerful than the offending belligerent, or a powerful combination of neutral states, would risk such action, since the belligerent may choose to regard the intervention as an unfriendly act and a casus belli. In connection with the topic of intervention the position of the United Nations should be considered. 16 It has already been noted that in certain cases war may still legally be waged under the terms of the United Nations Charter, apart, that is to say, from the application of forcible means by the United Nations itself. 17 However, it cannot reasonably be argued that if such a "legal" war were to be waged, the United Nations should merely stand by and take no interest in it. T h e preamble of the Charter expresses the determination of the United Nations to establish "conditions . . . under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained." Surely this would apply equally 14 Note the conciliation procedure through protecting powers under Art. 11 in each of Geneva Conventions I, II, III, 1949, and Art. 12, Geneva Conv. IV, 1949. 16 On the right of neutral states to intervene in order to vindicate the laws of war, see Stowell, Intervention in International Law, pp. 45-51, 125-126, 137. 16 See also above, pp. 9-10. " A b o v e , pp. 2&-2g.

Means

of Enforcement

407

to the obligations which a belligerent owes under the laws of war, as well as to those which apply in peace time. Further, Article 1 (1) of the Charter states as the first purpose of the United Nations the maintenance of international peace and security. Such a purpose must not only include the prevention of war, but arresting the spread of a conflagration which is already in being and which, under the terms of its Charter, it has been powerless to prevent. Such a "legal" war must be strictly confined within its legal bounds, and since the commission of blatant illegalities by a belligerent contrary to the laws of war can only have the effect of intensifying and spreading the conflict, it would seem that the Security Council has a right to intervene in such circumstances either under Articles 33 (2) and 36,18 or, if necessary, under Articles 41 1 9 and 43.20 Where the Security Council failed to take the necessary action, the General Assembly could take up the matter under the terms of its Resolution of November 3, 1950.21 Consideration will now be given to the sanctions which come under the head of retaliatory force and punishments. These consist of reprisals, the taking of hostages and the punishment of war crimes. REPRISALS Reprisals in effect constitute a warning to the enemy in the form of retaliatory actions to desist from illegal acts of warfare and comply with the laws of war. 22 Reprisals are illegitimate acts of warfare, not 18 These articles provide for the use of negotiation, inquiry, mediation and the like in seeking a solution. " T h i s article provides for measures not involving the use of armed force, such as complete or partial interruption of economic relations and means of communication and severance of diplomatic relations by members of the United Nations. 20 This article provides for the use of armed forces by the United Nations, including demonstrations and blockades. 21 The gist of this resolution was that "if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to members for collective measures, including in the case of a breach of the peace or acts of aggression the use of armed force when necessary, to maintain or restore international peace and security." 22 The Netherlands Special Court of Cassation claimed that the illegal act of launching and waging a war of aggression entitled the state attacked to resort to "acts of retaliation," to which the aggressor state could not answer with legitimate reprisals. Trial of Ranter (1949), L.R.T.W.C., XIV, 136. If by such "acts of retaliation" the Netherlands court implied that the state attacked could resort to illegal means of war in reply to the aggression, then such a view is contrary to the generally accepted concept that even war illegal in origin must be conducted according to the rules of war. See above, p. g. Such illegal acts of warfare would, therefore, entitle even an aggressor state to execute reprisals.

408

Means

of

Enforcement

for the purpose of indicating abandonment of the laws of war, but, on the contrary, to force compliance to those laws. If they do constitute a form of payment in kind, it is not for purposes of spite, revenge, or even punishment, but as a clear indication by the belligerent against which the illegalities have been directed that it will not tolerate such abuses, will not be placed at a disadvantage by the enemy's use of illegal methods, and that it would be to the benefit of both sides if the war were conducted according to international law. T h e law on the subject of reprisals is mainly of a customary nature. T h e text of the Hague Regulations contains no reference to reprisals, because a previous failure at the Brussels Conference of 1874 to regulate them discouraged the reopening of the subject. However, it will be seen that Geneva Conventions I I I and IV, 1949, contain important provisions concerning reprisals. T h e necessity for precise rules regulating the use and nature of reprisals has long been recognized by those interested in maintaining the rule of law in warfare, since the doctrine of reprisals in its present somewhat obscure and undefined state provides the chief loophole for the evasion, violation, and nullification of the laws of war. 23 Reprisals in time of war are admissible, under the conditions to be discussed, for any act of illegitimate warfare on the part of the enemy; 24 an unscrupulous enemy, therefore, seeking for pretexts to conduct illegal warfare finds in reprisals a ready means for achieving its object, by claiming justification on that score. 23 T h e Laws of War on Land recommended for adoption by the Institute of International Law at Oxford, Sept. 9, 1880—the "Oxford Manual"—stated: "Part Third. Penal Sanction. If any of the foregoing rules be violated, the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are. 84. Offenders against the laws of war are liable to the punishments specified in the penal, or criminal law. This mode of repression, however, is only applicable when the person of the offender can be secured. In the contrary case, the criminal law is powerless, and, if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law, no other resource remains than a resort to reprisals. Reprisals are an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty. They are also at variance with the rule that each belligerent should conform to the rules of war, without reciprocity on the part of the enemy. This necessary rigor, however, is modified to some extent by the following restrictions: 85. Reprisals are formally prohibited in all cases in which the injury complained of has been repaired. 86. In all cases of serious importance in which reprisals appear to be absolutely necessary, they shall not exceed, in kind or degree, nor in their mode of application, the exact violation of the law of war committed by the enemy. They can only be resorted to with the express authority of the general in chief. They must conform, in all cases, to the laws of humanity and morality." Scott, ed., Texts of the Peace Conferences at The Hague, 1899 a n £ * z9°7> PP- 399" 400. 21

Oppenheim, II, 447.

Means

of Enforcement

409

A n example of the use of such a pretext is found in Hitler's notorious " C o m m a n d o " order in W o r l d W a r II, the "Fuhrerbefehl" of October 18, 1942. T h i s blatantly illegal order, which required the summary execution of soldiers in uniform taken prisoner on commando operations, begins with the purported justification that: "For some time now our opponents have been using in the prosecution of war, methods which do not conform with the international agreements of Geneva." 25 T h e experience of the two world wars has shown how the observance of the laws of war has been lost in a welter of reprisal and counterreprisal. As has been stated: " T h e institution of reprisals which, though designed to ensure the observance of the rules of war, have systematically been used as a convenient cloak for disregarding the laws of w a r . " 2 8 Incidentally, two other loopholes which were formerly considered to allow escape from the strict observance of the laws of war, namely the doctrine of military necessity 27 and the plea of superior orders, 28 have now been so interpreted as to preclude their use as a means of evasion. T h e vagueness which surrounds the rules of reprisal still constitutes, however, a major obstacle to the effective enforcement of the laws of war. T h e question arises, against which persons and property reprisals may be instituted. By a provision of Article 13 of Geneva Convention III, 1949, "measures of reprisal against prisoners of war are prohibited." 29 Reprisals are also prohibited against wounded, sick, shipwrecked personnel; buildings; vessels; or equipment protected by Geneva Conventions I (see Article 46) and II (see Article 47). In addition, important new provisions in Article 33 of Geneva Convention IV, 1949, extend protection against reprisals to those civilian persons w h o are most exposed to reprisals. In the latter connection, Article 50 of the Hague Regulations, 1907, provided, with regard to occupied territory: " N o collective penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which it cannot be regarded as collectively responsible." T h i s article was, however, stated by those w h o formulated it to be "without prejudice to the question of re25 For the terms of this order, see The Falkenhorst Trial (Trial of von Falkenhorst) (1946), Brit. Mil. Ct„ Germany, WCT Series, VI, 250-255. 20 History of the U.N. War Crimes Commission . . . , p. 29; see also Oppenheim, II, 447, 450. 37 Above, pp. 313-314. 38 Below, pp. 490 f. 29 Cf. Art. 2, Geneva (Prisoners of War) Convention, 1929. Also forbidden is "collective punishment for individual acts." Art. 87, Geneva Conv. Ill, 1949.

410

Means of

Enforcement

prisals." 30 Article 33 of Geneva Convention IV, 1949, on the contrary, not only categorically forbids collective penalties under all circumstances against civilian persons protected by the convention but prohibits reprisals against them and their property in the following terms: " N o protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited . . . Reprisals against protected persons and their property are prohibited." Protection under this article is afforded both in the territories of the belligerents and in occupied territories. It will be recalled that "persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." 3 1 Nationals of a state which is not bound by the convention are not protected by it, neither are neutrals and nationals of a cobelligerent state whose own states have normal diplomatic representation in the state in whose hands they are.32 Therefore, by a process of subtraction it will be seen that, in the case of a belligerent bound by the convention, the potential subjects of any reprisals it may execute are members of the enemy armed forces other than prisoners of war, wounded, sick, shipwrecked, and protected personnel; and those enemy civilian nationals who do not come within the definition of protected persons, namely, those nationals still living in enemy territories which have not fallen under the control of the opposing belligerent, and, of course, their property.33 Noncombatants not protected by a specific rule of law are not exempted from being the subject of reprisals. Reprisals may be legitimately carried out against the enemy even though they incidentally affect neutrals. 34 Illegal acts of warfare justifying reprisals may be committed by the enemy government, its military commanders, or more doubtfully, by individuals whom it is impossible to apprehend, try, and punish. 35 30

Br.M.M.L.,

chap, xiv, par. 452 and note, citing report (i.e., the R o l i n

Report)

of the committee which drew u p the Convention respecting the Laws and Customs of W a r on L a n d

presented

1899, p.

Case

151). In

to the H a g u e

of Kappler

Conference,

(1952), Supreme

1899

(Hague

Mil. T r i b . ,

Conference,

Italy, 48

96-98, the court held that permissible collective sanctions under Art. 50,

A.J.I.L. Hague

Regulations, did not include the taking of life. 81 82 33

Art. 4, Geneva Conv. I V , 1949; see above, pp.

N o t e prohibition of reprisals against cultural property, p. 345.

MSee 86

157-158.

Ibid. below, p. 583.

Br.M.M.L.,

Pt. I l l , par. 643; U.S. Rules

358(c). Fauchille, II, par.

tends that reprisals may not be carried out on fellow citizens of

1025, con-

noncombatant

Means

of Enforcement

411

However, since reprisals are an extreme measure only to be used as an unavoidable last resort, every endeavor should first be made to regulate the matter by other means, unless the circumstances are so urgent that the safety of the troops demands immediate drastic action. 36 In any case, before any further steps are taken the fact that an infraction of the laws of war has been committed should always be definitely established. Normally, every effort should then be made to find and punish the actual offenders. If this is unsuccessful, a complaint should be addressed to the enemy, as described earlier,37 specifying the violation and requiring the enemy to punish the offenders and ensure against any recurrence of the offense. Even if all these measures are without result, the belligerent which has suffered the injury should still consider whether the enemy "is not more likely to be influenced by a steady adherence to the laws of war on the part of his adversary." 38 It has already been pointed out that experience has shown that instead of compelling adherence to the laws of war, reprisals have often formed the pretext for their wholesale abandonment. Only in exceedingly grave cases should there be resort to reprisals. individuals who have committed infractions of the laws of war, since the civilian population lacks the corporate solidarity of a military force which is necessary to influence the wrongdoers. He cites Pillet, Le Droit de la Guerre, I, p. 289, in support. Martial law over the civilian population is suggested in such circumstances. Previously, Fauchille had pointed out that in order for reprisals to accomplish their purpose, they must be of such a nature as to make an impression upon those who have the power to cause the illegal conduct to cease. Ibid., par. 1024. In Trial of Rauter (1949), above, L.R.T.W.C., X I V , 129-138, the Netherlands Special Court of Cassation drew a distinction between "genuine" reprisals and "so-called" reprisals. It held that "genuine" reprisals can only be instituted as between states in respect of illegal acts committed by the organs of a state, whereas "so-called" reprisals, instituted in respect of acts committed by individuals for w h o m the state is not responsible, are not permissible. T h e reason given being that by Art. 50, Hague Regulations, 1907, no collective penalties can be inflicted on the population on account of acts for which it cannot be regarded as collectively responsible (see above). Cf., Case of Kappler, above. However, the general view regarding reprisals does not appear to coincide with the view held by the Dutch court. T h e object of reprisals is to ensure the observance of the rules of war by all those committing illegal acts of war in the interest of the enemy. T h e primary test as to whether reprisals are admissible appears, therefore, to be whether they will in fact influence those committing illegal acts of warfare to conform with the rules of war, and not whether the individuals committing illegal acts of war are actually authorized by their state. However, since the subjects of reprisals are now so severely limited, reprisals must almost invariably be directed against illegal acts committed by organs of state. 38 See also Hyde, III, 1841. " A b o v e , at the beginning of this chapter. See also Fauchille, II, par. 1023. 88 BrM.M.L., chap, xiv, par. 457.

412

Means

of

Enforcement

T h e grave nature of reprisals and what they imply makes it necessary that they should only be instituted on the orders of a commander constituting the highest accessible military authority, and never on the initiative of individual soldiers. 39 Exceptionally, reprisals may be ordered by a subordinate commander where immediate action is demanded as a matter of military necessity. 40 However, it must be borne in mind that "hasty or ill-considered action may subsequently be found to have been wholly unjustified, subject the responsible officer himself to punishment as for a violation of the laws of war, and seriously damage his cause." 4 1 Indeed the last sentence emphasizes the extreme care and investigation which should precede an act of reprisal, because reprisals are in themselves illegal acts of warfare and, as such, war crimes in the absence of justification. T h e form which reprisals take is a matter within the discretion of the party instituting them, and is not laid down by any rule of law. A reprisal, therefore, need not be identical with the offense which provoked it, although the two acts are generally of a similar nature in order to bring the matter forcibly to the attention of the offender. However, a reprisal must not be excessive nor exceed the degree of violation committed by the enemy. 42 Reprisals must be public, because they are aimed "at changing the adversary's conduct and forcing him to keep to the generally accepted rules of warfare." 43 Acts of torture, cruelty, or treachery, could not be regarded as reprisals. 44 T h e manner in which a reprisal is carried out has a bearing on its legality. 45 Innocent persons cannot be executed as a reprisal. 46 Since reprisals are carried out because the guilty parties among the enemy cannot be apprehended, tried, or punished, it is obvious that usually reprisals are taken against persons w h o are themselves guilty of no offense. T h i s is because reprisals are coercive in nature and not a means of punishment. T h e actual offenders against the laws of war 39Br.M.M.L., II, par. 1023.

Pt. I l l ,

par. 645;

U.S.

Rules

358 (b);

U.S.

Law

497d;

Fauchille,

40 U.S. Rules 358 (b); U.S. Law 497b; H y d e , III, 1843, points out that a state instituting reprisals against uncivilized tribes or the forces of a state of backward civilization should not sink to the level of its foe by c o m m i t t i n g "acts of barbarity." a

U.S. Rules

43

U.S. Rules 358 (e); U.S. Law 497«; Br. M.M.L.,

358 (b). Pt. I l l , par. 648.

Trial of Bruns, et al. (1946), Supreme C t . of N o r w a y , L.R.T.W.C., 19; Fauchille, II, par. 1021. a

See previous Trial of von V I I I , at pp. 6 - 7 M i l . Ct., Venice, 44

16

46

III, at p .

note. Mackensen and Maelzer (1945), Brit. M i l . Ct., R o m e , L.R.T.W.C., ( T h e Ardeatine C a v e Massacre); Trial of Kesselring (1947), Brit. L.R.T.W.C., V I I I , at pp. 12-14.

See below, under "Hostages."

Means of Enforcement

415

still remain liable to punishment for war crimes, even though reprisals have been taken against their crimes. Justifiable reprisals do not entitle the enemy to institute counterreprisals. "Under international law, as in domestic law, there can be no reprisal against reprisal. T h e assassin who is being repulsed by his intended victim may not slay him and then, in turn, plead selfdefense." 47 Reprisals which have achieved their object must be at once discontinued, that is, when the enemy gives satisfaction for his illegal acts.48 HOSTAGES It would seem that little basis still remains in international law for the taking and holding of hostages as guarantees for the observance of the laws of war by the enemy. It has already been noted that "measures of reprisal against prisoners of war are prohibited." 49 Regarding civilian persons in war time, Article 34 of Geneva Convention IV, 1949, states categorically: " T h e taking of hostages is prohibited." 50 This injunction applies equally to protected persons 51 in the territories of belligerents and to those in occupied territories. Similarly, reprisals against protected persons and their property are prohibited. 62 If hostages can still be taken, therefore, they can only be taken from civilian nationals of a belligerent state which is not bound by Geneva Convention IV, 1949. Some purposes for which hostages have been taken in the past have previously been described, 53 but the practice of taking hostages has not been favorably looked upon in modern times, well before Geneva Convention IV, 1949, was formulated, 54 and may be regarded as obso47 Judgment in The Einsatzgruppen Case (United States v. Ohlendorf, et al.) (1948), U.S. Mil. Trib., Nuremberg, TWC, IV, 493. See also Trial of Rauter, above, L.R.T.W.C., XIV, 134-135. Br.M.M.L., chap, xiv, par. 460. " A r t . 13, Geneva Conv. Ill, 1949. 60 See also above, p. 1 7 1 . 61 Defined above, pp. 1 5 7 - 1 5 8 . 62 Art. 33, Geneva Conv. IV, 1949, which also provides: " N o protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited." 63 Above, p. 1 7 1 . " S e e , for example, Br.MM.L., chap, xiv, par. 461; Hyde, III, 1902-1903; Fauchille, II, par. 1146 (1); also Lord Wright, chairman of the U.N. W a r Crimes Commission, in foreword, L.R.T.W.C., VIII, ix-x, citing Melen, " L a question des otages à la lumière du droit," Revue de Droit International, de Sciences Diplomatiques et Politiques, X X I V (1946), 17-25.

414

Means of

Enforcement

lescent, if not obsolete. 55 It has been suggested that to ensure the observance of treaties, armistices, and other agreements depending on good faith between belligerents, it is preferable to resort to territorial guarantees instead of taking hostages.56 T h e Hague Regulations do not mention hostages, but Article 50 forbids collective penalties on the population of occupied territories for the acts of individuals for which it cannot be regarded as collectively responsible. 57 Where hostages are taken they must be treated in all respects as prisoners of war. 58 They may be held in captivity, but must not be put to death, even for violations of the laws of war committed by the enemy. 59 T h e judgment in The Hostage Case (United States v. List, et al.),60 one of the Nuremberg war-crimes trials, incurred considerable criticisms61 because it held that: "Hostages may be taken in order to guarantee the peaceful conduct of the populations of occupied territories and when certain conditions exist and the necessary preliminaries have been taken, they may, as a last resort be shot." 62 This surprising judgment was stated to be "based fundamentally on a theory of collective responsibility . . . provided it can be shown that the population generally is a party to the offense, either actively or passively." 63 T h e court indeed stated that every available method should be used to restore order and tranquillity before hostages are taken and that there should be "meticulous compliance" with the following "safeguards." These are: "There must be some connection between the 66 66

See U.S. Law 497g; Br.M.M.L., See note 54, above.

Pt. I l l , par. 650.

m A b o v e , p. 00. T h e article was regarded as being " w i t h o u t prejudice to the question of reprisals." Arts. 46, 52, H a g u e Regulations, 1907, also h a v e some bearing on the question of hostages.

K u h n , " T h e Execution of Hostages," 36 A.J.I.L. 273, citing Hall, International Law, 5th ed., by A t l a y , p. 418; Br.M.M.L., chap, xiv, par. 461; U.S. Rules 359; see also above, p. 100. 69 K u h n , loc. cit.; Br.MM.L., chap, xiv, par. 461; O p p e n h e i m , XI, 347; R o l i n , II, 336; Trial

of Rauter,

above, L.R.T.W.C.,

X I V , at pp. 137-138; Br.MM.L.,

Pt.

III, pars. 554, n. 2 (b); 650. 80 U.S. Mil. Ct., TWC, X I . J u d g m e n t was rendered Feb., 1948. 61 See T e l f o r d T a y l o r , Final Report to the Sec. of the Army on the Nuernberg War Crimes Trials under Control Council Law No. 10, p. 207 ( T a y l o r was chief of counsel for war crimes at those trials); W r i g h t , in foreword, L.R.T.W.C., VIII, viixi; Re Neubacher (1949), Special Ct. of Cassation, H o l l a n d , Ann. Dig., 1949, at p. 548, in note to In re Rauter, above, Ann. Dig., 1949, Case N o . 193; In re Burghoff (1949), same court, Ann. Dig., 1949, Case N o . 195; BrM.M.L., Pt. I l l , par. 650, n. 1. " The "Loc.

Hostage cit.

Case, above, p. 1249. Italics mine.

Means

of Enforcement

415

population from whom the hostages are taken and the crime committed. . . . T h e number of hostages shot must not exceed in severity the offenses the shooting is designed to deter . . . [and] must be based on the order of a competent court-martial." 64 T h e court later distinguishes between hostages and so-called "reprisal prisoners," that is, prisoners taken in reprisal after an offense has been committed, in which case there must be "a previous proclamation that if a certain type of act is committed, a certain number of reprisal prisoners will be shot if the perpetrators cannot be found." 65 Such reprisal prisoners, the court held, may be shot as a last resort, but only if the "population as a whole is a party to the offense, either actively or passively"; must not "exceed in severity the unlawful acts it is designed to correct"; and there must be "a judicial finding that the necessary conditions exist and the essential steps have been taken to give validity to such action." 66 However, the court was not always prepared to insist upon a judicial inquiry and felt that necessity did away with the requirement of a judicial finding, stating: " T h e only exception [namely] necessity . . . requires immediate reprisal action to accomplish the desired purpose and which would otherwise be defeated by the invocation of judicial enquiry." 67 W h i l e the court upheld the right to shoot hostages and "reprisal prisoners," it pointed out: " I t is not shown that a single hostage or reprisal prisoner has been killed by A l l i e d forces throughout the course of the late war." 68 It is a most pertinent reflection u p o n the court's judgment that if there is indeed a legal right to execute hostages and so-called reprisal prisoners, then in the course of a long, world-wide, hardly contested war, one side made no use whatever of such a purported right when there must have been numerous occasions when such a right could have been exercised. In contrast with this judgment, a French military court convicted as war criminals members of various German units who, in reprisal for activities of the French resistance movement, killed a number of innocent French civilians. 69 T h e Netherlands Special Court of Cassation similarly condemned the killing of innocent inhabitants in reprisal for activities Ibid., pp. 1250-1251. p. 1252. T h e distinction between hostages and "reprisal prisoners" appears to be that the former are held as a safeguard against the commission of offenses by the population, that is, before the commission of the offenses, while the latter are seized in reprisal for the commission of such offenses. M Ibid., p. 1253. 67 Loc. cit. " Ibid., p. 1317. ® Trial of Holstein, et al. (1947), French Mil. Trib., France, L.R.T.W.C., VIII, at pp. 26-29. 84

mIbid.,

416

Means of

Enforcement

of the Dutch resistance movement. 70 In a British military court, the judge advocate stated in his summing-up: " T h e killing of hostages or reprisal prisoners is a violation of the rules and usages of war and is murder." 7 1 In fact, with the judgment in The Hostage Case may fittingly be contrasted the simultaneous declarations of President Franklin Roosevelt and Prime Minister Winston Churchill on October 25, 1941, condemning the execution of innocent hostages in reprisal for attacks on Germans. Said President Roosevelt: "Civilized peoples long ago adopted the basic principle that no man should be punished for the deed of another." 72 T h e judgment in The Hostage Case is all the more surprising because the charter of the International Military Tribunal which sat at Nuremberg (the London charter, 1945) plainly stated in Article 6: " T h e following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility . . . (b) War Crimes: Namely, violations of the laws or customs of war. Such violations shall include . . . killing of hostages . . ." 73 T h e Nuremberg Tribunal stated in its judgment that "the crimes defined by Article 6, Section (b), of the Charter were already recognized as war crimes under international l a w , " 7 4 condemned the practice of killing hostages,76 and found a number of the defendants guilty on counts which included this charge. 76 Further, the court in The Hostage Case took its jurisdiction from Control Council Law No. 10 for Germany, which according to its terms was expressed to give effect (inter alia) to the charter of the International Military Tribunal; which incorporated the charter as an integral part of that law (Article I); and stated specifically in Article II: "1. Each of the following acts is recognized as a crime: . . . (b) War Crimes . . . killing of hostages." 77 In view of all these considerations, the judgment in The Hostage Case that hostages 70 In re "Silbertanne" Murders (1946), Special Ct. of Cassation, Holland, Ann. Dig., 1946, Case No. 170; see also Trial of Rauter (1949), L.R.T.W.C., XIV, at pp. 137138, where the Netherlands Special Ct. of Cassation condemned the killing of hostages; Re Neubacher, above; In re Burghoff, above. 71 In re von Lewinski (called von Manstein) (1949), Brit. Mil. Ct., Germany, Ann. Dig., 1949, Case No. 192, at pp. 518-520. Cf. Br.MM.L., Pt. I l l , par. 554, n. 2 (b). 73 History of the U.N. War Crimes Commission . . . , p. 88. 73 Trial of War Criminals, Documents (U.S. Dept. of State Pub. 2420, 1945), p. 16. 74 Nuremberg Judgment, p. 83; see also at p. 48.

Ibid., pp. 57, 63. "Including Keitel, Rosenberg, Frank, Seyss-Inquart; see Nuremberg pp. 118, 123, 124, 155. " F o r the terms of this law, s^e The Hostage Case, above. 75

Judgment,

Means of Enforcement

417

and so-called reprisal prisoners may legally be put to death under the laws of war must be regarded as unfounded in law. 78 T h e United States army field manual, The Law of Land Warfare, now states categorically in paragraph 497g: " T h e taking of hostages is forbidden (GC, art. 34). T h e taking of prisoners by way of reprisal for acts previously committed (so-called 'reprisal prisoners') is likewise forbidden. (See GC, art. 33.)" 79 Some mention should be made of what are known as "prophylactic reprisals," the chief example of which is the use of hostages to ensure the safety of lines of communication in occupied territory against attack or sabotage by the local population, by such means as placing prominent inhabitants on the locomotives of trains passing through such territory.80 Numbers of jurists have condemned this practice. 81 T h e British Manual of Military Law has described this as not a commendable practice, pointing out that the lives of the hostages are exposed not only to illegal acts of train wrecking by private enemy individuals, but also to the lawful operations of raiding parties of the armed forces of the enemy.82 This criticism acquires considerably greater force from the recognition which Article 4A (2) of Geneva Convention III, 1949, has conferred on organized resistance movements operating inside or outside their own territory as lawful belligerents. Since hostages may not be used against lawful acts of warfare, it is evident that "prophylactic reprisals" should not be applied in modern warfare. Hostages may in no circumstances, including those of reprisal, be used to prevent the enemy from carrying on lawful hostilities, as for example, by using them as a screen in front of advancing columns to prevent the enemy from attacking. 83 Indiscriminate mass arrests to terrorize the population, whether described as the taking of hostages or not, is a war crime.84 78 See also the criticism of this judgment by Wright, in foreword, L.R.T.W.C., VIII, pp. vii-xi; in The High Command Case (United States v. von Leeb, et al.) (1948), L.R.T.W.C., XII, at pp. 84-85, another U.S. military tribunal at Nuremberg expressly took care not "to approve or disapprove the conclusion of law" set out in The Hostage Case as to the permissibility of killing hostages and so-called "reprisal prisoners." Br.M.M.L., Pt. Ill, par. 650, n. 1 states: " T h e judgment . . . was not a correct statement of the law of war even at that time." " B y "GC," the manual refers to Geneva Convention IV, 1949. 80 For other examples of "prophylactic reprisals," see Fenwick, p. 581; Spaight, War Rights on Land, pp. 466-470. 81 See Fauchille, II, par. 1143, and publicists there cited; also Rolin, II, par. 486. 83 Br.M.M.L., chap, xiv, par. 463. Cf. Br.M.M.L., Pt. Ill, par. 651. w K u h n , " T h e Execution of Hostages," 36 A.J.I.L. 272, citing Spaight, op. cit., pp. 406, 467-468; Oppenheim, II, 460-461; Fauchille, II, par. 1143. 84History of the UJN. War Crimes Commission . . . , p. 492. See also above, pp. 170-171.

XII THE

PUNISHMENT

OF W A R

CRIMES

A CARDINAL DEVELOPMENT The subjection of warfare to the rule of law is impressively illustrated by the importance laid in recent years, particularly during and after World War II, on the punishment of war crimes, and the rapid development of the law on this subject. When the feeble efforts made after World War I to bring war criminals to justice (and the scanty results of those endeavors)1 are compared with the systematic and stupendous labors expended in the prosecution of war crimes after World War II, the progress in this vital field is apparent. By March, 1948, more than 2,000 trials in Europe and the Far East arising out of World War II were noted by the United Nations War Crimes Commission;2 the defendants included major and so-called minor offenders (the distinction is between leaders whose enormities had "no particular geographical location" 3 and those less highly placed, and is not intended to indicate that the crimes committed by "minor" offenders were trivial); the courts of numerous countries participated and the trials were held in many parts of the world. This intense legal activity focused on the subject of war crimes did a great deal to explore and demarcate this hitherto somewhat obscure field. Conceptions of law recently vague were more closely defined, and a body of case law sprang up. While such decided cases do not 1

See Hackworth, VI, 279-280. History of the U.N. War Crimes Commission . . . , App. IV, pp. 515-518. The commission had records of 1,911 of those trials; see Lord Wright, chairman of the U.N. War Crimes Commission, in foreword, L.R.T.W.C., XV, xvi. "Nuremberg Judgment, p. 1. 2

Punishment

of War Crimes

419

constitute binding precedents in international law, because that law recognizes no such system of precedent, 4 they constitute useful guideposts. A m o n g the conceptions o£ law which underwent a thorough reevaluation was the fundamental one of what constitutes war crimes. World W a r II finally crystallized legal ideas which had slowly been taking shape between the two world wars. Together with war crimes in a more restricted sense which had long been recognized by the laws of war were classed two other broad categories of offenses against international law, namely crimes against peace and crimes against humanity. In its restricted or conventional 5 meaning, the term "war crimes" had been used to denote violations of the laws or customs of warfare whether committed by members of the enemy armed forces or by civilians. T h a t is, the term was limited first, to acts committed in the conduct of a war already in being, without reference to the origin and nature of the war, and, secondly, only to acts constituting violations of a particular body of rules. T h e term had no reference to any possible crimes committed by bringing about or waging an unlawful war; or to crimes which, while technically not offending against the laws and customs of war, were committed in furtherance of other war crimes. However, even before World War II definitions had been applied to war crimes which were broad enough in scope to be used today to cover not only war crimes in the more limited sense, but also the later categories. 6 W a r crimes may be generally defined as those illegal actions in relation to the inception or conduct of warfare for which there may be either state 7 or individual responsibility or both, and which may be visited on the individual offenders by capture, trial, and punishment. Individuals responsible may be either soldiers or civilians. While in the main, war crimes are morally reprehensible and often of the vilest nature, some are crimes only in a technical sense. T h a t is, although they are punishable under international law, no moral baseness can be alleged against those committing such actions; for instance, in espionage or war treason committed from high patriotic motives. However, the existence of such motives does not debar the See above, pp. 7-8. T h e description used in Art. 5 (b), Charter of the Int. Mil. T r i b . for the Far East, 1946. "E.g., BrM.M.L., chap, xiv, par. 441: " T h e term 'War Crime' is the technical expression for such an act of enemy soldiers and enemy civilians as may be visited by punishment or capture of the offenders." 7 For what state responsibility implies, see above, pp. 403 f. 4 5

420

Punishment

of War

Crimes

enemy from inflicting severe punishment for such offenses or even from imposing the death penalty. W a r crimes fall into the following main categories: A. Crimes against peace: the planning, preparation, initiation, or waging of a declared or undeclared war of aggression, or a war otherwise in violation of international law, or a war in violation of international treaties, agreements, or assurances.8 B. Conventional war crimes: violations of the laws or customs of war. These include, but are not limited to, murder, ill-treatment or deportation to slave labor or for any other unjustifiable 9 purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns, or villages; devastation not justified by military necessity; illegitimate hostilities committed by persons who are not members of the armed forces; espionage and war treason; marauding. 1 0 C. Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during war, or persecutions on political, racial, or religious grounds, when such acts or persecutions are carried out in execution of or in connection with any crimes against peace or any other war crime. 1 1 D. Genocide: any of the following acts committed in time of war 1 2 with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group. 1 3 8 See Art. 6 (a), charter of the Int. Mil. T r i b . , 1945; Art. 5 (a), charter of the Int. Mil. T r i b . for the Far East, 1946; Nuremberg Judgment, pp. 48-54. • A r t . 49, Geneva Conv. I V , 1949, states in its second paragraph the exceptional circumstances under w h i c h evacuation may be justifiable. 10 See Art. 6 (b), charter of Int. Mil. T r i b . , 1945; Art. 5 (b), charter of Int. M i l . T r i b . for Far East, 1946; BrM.M.L., chap, xiv, par. 442; ibid., Pt. I l l , pars. 625, 626; US. Rules 347, 348, 350, 352-353; US. Law 80, 81, 502, 504; O p p e n h e i m , II, 450; Nuremberg Judgment, p. 83. 1 1 Art. 6 (c), charter of Int. Mil. T r i b . , 1945; Art. 5 (c), charter of Int. Mil. T r i b . for Far East, 1946; Nuremberg Judgment, p. 84. 12 Genocide is a crime whether committed in time of war or peace; see Art. I, Genocide Conv., 1948.

" A r t . II, Genocide C o n v . 1948, above, p. 200; C o u n t T h r e e , V I I I (A), N u r e m berg Indictment, see Trial of War Criminals, Documents (U.S. D e p t . of State P u b . 2420, 1945), p. 39; Nuremberg Judgment, p p . 66-67, 79^84.

Punishment

of War

Crimes

481

E. Acts which constitute: Conspiracy to commit any of the foregoing categories of war crimes; direct incitement to commit such crimes; attempts to commit such crimes; or complicity in the commission of such crimes.14 W a r crimes are crimes against international law; 1 6 they are, therefore, punishable whether or not they are in violation of the domestic law of any particular country. 16 "Individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law." 1 7 The obligation of a state to punish those of its own nationals who commit war crimes has already been mentioned. 18 It is recognized that, in the absence of an international criminal court exercising effective authority over all states, it may well be difficult to ensure the punishment of war crimes committed by the nationals of a victorious state unless that state is prepared to exercise its authority to this end. However, the fact that such persons might escape punishment may in no way be alleged as a bar to the trial and punishment of nationals of the vanquished state. 19 In common with other systems of law, the law of war, which is part " A r t . 6, charter of Int. Mil. Trib., 1945; Art. 5, charter of Int. Mil. T r i b . for Far East, 1946; Art. I l l , Genocide Conv., 1948; Nuremberg Judgment, pp. 54-56; "Report of U.N. Int. Law Commission formulating the principles of international law recognized by the Nuremberg Charter and Judgment," V.N. Gen. Ass. Off. Rees., $th Sess., Suppl., no. 12, A / 1 3 1 6 (1950), pp. 124-127. Cf., U.S. Law 500. " T h e r e is a distinction in international law between acts which are illegal without being criminal and those which are criminal. Among the criteria determining criminality are the explicit branding of an act as criminal, express provision for punishment of perpetrators, actual punishment in practice, or the existence in the international community of an intention to brand particular acts as criminal under international law. Nuremberg Judgment, pp. 50-52; U.N. Sec.-Gen.'s Memo., The Charter and Judgment of the Nürnberg Tribunal, History and Analysis, U.N. Doc. A/CN.4/5 (1949), pp. 45-46. 18 It may be noted here that in municipal law, as contrasted with international law, the general practice followed in European Continental municipal courts trying war crimes is that an accused person can be convicted only if it is shown that he violated not only the laws and usages of war, but also specific provisions of the municipal law of that country; cf., the provisions in French, Norwegian, Polish, Danish, and Luxembourg law. L.R.T.W.C., X V , 31 f. "Nuremberg Judgment, p. 53; "Report of U.N. Int. Law Commission . . . ," (see note 14), p. 12; see also Arts. 6 (c), 7, 8, charter of Int. Mil. Trib., 1945; Arts. 5 (c), 6, charter of Int. Mil. Trib. for Far East, 1946; Art. IV, Genocide Conv., 1948. 18 Above, pp. 403-404. 18 Fenwick, p. 672. This basic proposition is, of course, common to municipal legal systems, and was restated in the judgments of various of the war-crimes trials following World War II.

422

Punishment

of War Crimes

of international law, "is not static, but by continual adaptation follows the needs of a changing world." 20 T o ascertain at any particular time, therefore, which acts constitute crimes against the laws and customs of war, it is necessary to ascertain the actual content of those laws and customs at that time 2 1 —the object of this work in relation to the present day. Although each of the foregoing categories of war crimes will now be considered in greater detail, it will be for the purpose of elucidating general principles rather than the exhaustive reenumeration of all laws and customs of warfare set out elsewhere in this work. T h e penalties for war crimes are not graded as punishments are in municipal legislation for domestic crime. A l l war crimes are, therefore, in principle punishable by the death penalty, 22 except so far as the imposition of death in occupied territory has been restricted by Article 68 of Geneva Convention IV, 1949.23 T h e degree of severity of the penalty actually imposed in a particular case will, however, lie in the discretion of the court, the death penalty only indicating the range of its discretion. T h e court will be governed by the circumstances of each individual case.24 Corporal punishment is not permitted in any form. 25 T h e purpose of war-crimes punishment is, in the main, deterrent, 26 but it is specifically provided that in occupied territory the penalty shall be proportionate to the offense, and shall take into consideration the fact that the accused is not a national of the occupying power. 27 Where a sentence of imprisonment is pronounced, the term imposed need not take into consideration, and be limited by, any probability of the prisoner being released at the end of the war. No right to such release can be claimed, 28 although it is provided that protected persons accused of offenses or convicted by the courts in occupied territory shall be handed over at the close of the occupa-

20 Nuremberg Judgment, p. 51. See, for example, the Draft Code of Offenses against the Peace and Security of Mankind, formulated by the U.N. International Law Commission, in accordance with General Assembly Resolution 177 (II), par. (b). t/JV. Gen. Ass. Off. Recs., pth Sess., Suppl., no. 9, A/2693 (1954), p. 11. 21 U.N. Sec.-Gen.'s Memo, (see note 15), p. 62. 22 Br.MM.L., Pt. Ill, par. 638; U.S. Rules 457; U.S. Law 508. 23 Above, pp. 247-249. 24 U.S. Law 508 states: " T h e punishment imposed for a violation of the law of war must be proportionate to the gravity of the offense." ®Br.M.M.L., Pt. Ill, par. 638; U.S. Law 508. 28 Br.M.M.L., chap, xiv, par. 450; U.S. Rules 457. " A r t . 67, Geneva Conv. IV, 1949; above, pp. 246-247. 28 Br.M.M.L., Pt. Ill, par. 641; U.S. Rules 357; U.S. Law 508; Oppenheim, II, 456; see also Wheaton, II, 7th ed., 623.

Punishment

of War Crimes

423

tion, with the relevant records, to the authorities of the liberated territory. 29 T H E NUREMBERG JUDGMENT There can be no doubt that the keystone in the striking development of the laws of war on the subject of war crimes which took place as a result of World War II is constituted by the judgment delivered by the International Military Tribunal sitting at Nuremberg, which tried the major German war criminals. There, on October 1, 1946, after a trial which lasted for more than nine months, 30 the court signed a judgment immense in its scope, ruling on crime in war in all its major aspects. Within its scope were crimes against peace (that is, the crimes implicit in unlawful war), crimes against humanity, violations of the laws and customs for the conduct of war, and the criminal responsibility of individuals for the various classes of offenses enumerated. It is, therefore, important to determine the weight which can be attached to this decision. T h e International Military Tribunal was constituted by, and derived its jurisdiction from, the Agreement for the Establishment of an International Military Tribunal, and the annexed Charter of the International Military Tribunal, signed at London, August 8, 1945, on behalf of the United States, France, the United Kingdom, and the Soviet Union, "acting in the interests of all the United Nations and by their representatives duly authorized thereto." 3 1 Of the four judges, each party appointed one, and an alternate, of its nationality. Nineteen other United Nations governments adhered to this agreement. Following on the judgment, the United Nations General Assembly on December 11, 1946, adopted Resolution 95 (I): The

General

Assembly,

Recognizes

the obligation laid upon it by Article 13, para-

graph 1, sub-paragraph a, of the [United Nations] Charter, to initiate studies and make recommendations for the. purpose of encouraging the progressive development of international law and its codification; Takes

note

of the Agreement for the establishment of an International Military

Tribunal for the prosecution and punishment of the major war criminals of the European Axis signed in London on August 8, 1945, and of the Charter annexed thereto, and of the fact that similar principles have been adopted in the Charter Art. 77, Geneva Conv. IV, 1949; above, p. 253. T h e London Agreement for the Establishment of an International Military Tribunal, to which the charter of the tribunal is annexed, was signed Aug. 8, 1945; the indictment was presented on Oct. 18, 1945; the trial began Nov. 20, 1945; evidence and speeches of counsel were completed on Aug. 31, 1946; the judgment is dated Oct. 1, 1946. 31 Preamble to agreement. 20

30

424

Punishment

of War

Crimes

of the International Military Tribunal for the trial of the major war criminals in the Far East, proclaimed at Tokyo on 19 January 1946; Therefore, Affirms the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunalf Directs the Committee on the codification of international law established by the resolution of the General Assembly of 11 December 1946, to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal. 83

In a further resolution, 177 (II) of November 2 1 , 1947, the General Assembly directed the newly formed United Nations International L a w Commission to: "(a) Formulate the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal and (b) Prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above." ßoth the foregoing tasks were completed by the International L a w Commission; the first in 1950, 84 the second in 1951. 3 5 A second trial of prime importance, that of the major Japanese war criminals at Tokyo, 1946-1948, "confirmed and reinforced the massive achievements of the Nuernberg Tribunal" in its contribution to "the science and practice of international law, to the orderly processes of world society, and to the cause of peace." 3 6 As stated in the General Assembly resolution of December 1 1 , 1946, the Charter of the International Military Tribunal for the Far East, that is, the charter of the court which tried those war criminals, followed the principles of the charter of the Nuremberg Tribunal. T h e charter of the Tokyo Tribunal was proclaimed on January 19, 1946, by the supreme commander for the Allied Powers in the Pacific, who was 83 33

188.

Italics mine. Gen. Ass. Resolutions, Oct. 23-Dec. 15, 1946, U.N. Doc. A/64/Add.i (1947), p.

34 Report of International Law Commission, 2d Sess. (June 5 - J u l y 29, 1950), f/JV. Gen. Ass. Off. Rees., 5th Sess., Suppl., no. 12, A / 1 3 1 6 (1950), pp. 1 1 f. 36 International Law Commission, 3d Sess. (May 16-July 27, 1951), U.N. Doc. A/CN.4/48 of July 30, 1951, pp. 31 f. This draft code is "limited to offenses which contain a political element and which endanger or disturb the maintenance of international peace and security." It does not deal with conflicts of legislation, jurisdiction in international criminal matters, piracy, traffic in dangerous drugs, traffic in women and children, slavery, counterfeiting currency, damage to submarine cables, etc. Ibid., p. 33. This draft code was later modified to meet representations of various governments. See, Report of International Law Commission, 6th Sess. (June 3-July 28, 1954), U.N. Gen. Ass. Off. Rees., 9th Sess., Suppl., no. 9, A/2693 (1954); 49 A.J.I.L., Suppl., pp. 17-23. M

Keenan and Brown, Crimes Against International Law, p. 1.

Punishment

of War Crimes

425

appointed to that post by the President of the United States, with the consent and approval of the United Kingdom, China, and the Soviet Union. 37 T h e Tokyo charter was an implementation of the Instrument of Surrender of Japan, signed in Tokyo Bay, September 2, 1945, by which Japan accepted the provisions of the Potsdam Declaration of July 26, 1945, requiring that "stern justice shall be meted out to all war criminals." 38 T h e Moscow Agreement, of December 27, 1945, specifically authorized the supreme commander, on behalf of the Allied Powers, to implement the terms of the Instrument of Surrender. 39 T h e Tokyo Tribunal consisted of eleven judges, each of different nationality, nominated by their respective countries. Nine judges were from nations which were signatories of the terms of surrender, namely, Australia, Canada, China, France, the United Kingdom, the Netherlands, New Zealand, the Soviet Union, and the United States; the other two were from India and the Philippines, which, while not signatories of the terms, had been at war with Japan. T h e judgment of this tribunal, delivered in November, 1948, is generally "consistent with, and corroborative of, that of the Nuremberg Tribunal." 40 T h e London agreement of August 8, 1945, together with the annexed charter of the Nuremberg Tribunal, were formulated for the express purpose of trying and punishing only the major German war criminals. In fact, no more than one such trial was held, although Article 22 of the charter had made allowance for trials following the first one. T h e principles of the London agreement and charter were, however, carried into general effect against war criminals in Germany other than those described as major, by Control Council Law No. 10 for Germany, enacted on December 20, 1945. T h e purposes of this law, as described in the preamble, were to give effect to the terms of the Moscow Declaration of October 30, 1943,41 to the London agreement of August 8, 1945, and annexed charter, and to establish a uniform legal basis in Germany (i.e., in all four occupation zones) for the prosecution of war criminals and 37

Ibid.,

p. 188, n. 2.

Art. 10 of declaration. T h e Potsdam Declaration was signed b y C h i n a , U n i t e d Kingdom, and the U n i t e d States, and later adhered to by the U.S.S.R. See generally on the establishment and constitution of the T o k y o T r i b u n a l , Tokyo Judgment, pp. 2 - 7 . 38

See I I B (5). U.S. Treaties and Other International Acts Series, N o . 1555, p. 6. U . N . Sec.-Gen.'s Memo., p. 83. T h e French, D u t c h , and I n d i a n judges dissented from the j u d g m e n t on all material points. Ibid., p. 86. 38 40

41

Declaration on German Atrocities, released Nov. 1, 1943.

426

Punishment

of War

Crimes

other similar offenders, other than those dealt with by the International Military Tribunal. T h e Moscow Declaration on German atrocities in occupied Europe, it may be noted, stated that German war criminals would be sent back to the countries where their crimes were committed in order that they might be punished according to the laws of those liberated countries, and was interpreted to apply to "localized offenses or atrocities against persons or property, usually of civilians of countries formerly occupied by Germany." 4 2 T h e British occupying authorities chose to proceed in the main by Royal Warrant 4 3 against war criminals in their zone, instead of under Control Council L a w No. 10. T h e jurisdiction of the military courts set up under the Royal Warrant was limited to violations of the laws and usages of war only. Jurisdiction over crimes against peace and crimes against humanity was not granted to those courts, although other courts established in the British Zone did exercise such jurisdiction. 44 In the French Zone of Germany, Article 1 of Ordinance No. 36 gave military government tribunals in that zone of occupation power to try all the crimes set out in Control Council L a w No. 10, including war crimes, crimes against peace, and crimes against humanity. 4 5 T h e United States in its zone took full advantage of Control Council L a w No. 10, which it implemented by establishing military tribunals 46 to try the crimes set out in that law. 4 7 Those military tribunals "Report of Mr. Justice Jackson, chief of U.S. Counsel for the Prosecution of the Principal Axis War Criminals, to the president of the United States, released June 7, 1945. Trial of War Criminals, Documents (above, n. 13), p. 2. 13 Dated June 14, 1945; Army Order 81/1945. " British Control Commission courts established under Ordinance No. 68 of the British zone, in force Jan. 1, 1947, were given jurisdiction to try all war crimes specified in Control Council Law No. 10, namely, crimes against peace, crimes against humanity, membership of criminal organizations, as well as offenses against the laws and customs of war. For example, a Control Commission court tried members of the staff of the Esterwegen penal camp on charges which included crimes against humanity. Many of the political prisoners in that camp had been Belgians. History of the U.N. War Crimes Commission . . . , pp. 463-464. British Ordinance No. 47 concerning crimes against humanity, in effect Aug. 30, 1946, made applicable to the British zone the provisions of Art. I l l (id), Control Council Law No. 10, by which the German courts could exercise jurisdiction in crimes against humanity committed by Germans against other Germans and stateless persons. Ibid., p. 463. " L.R.T.W.C., III, 101-102. 46 Under Ordinance No. 7 (Organization and Powers of Certain Military Tribunals), Military Government, Germany, U.S. Zone. These tribunals were held to be courts of an international character and hence their judgments and sentences not subject to review by U.S. courts. Flick v. Johnson (1949), 174 Fed. Rept. 2d 983 (U.S. Ct. of Appeal, D.C.); 44 A.J.I.L. 187. However, in regard to The Pohl Case (United States v. Pohl, et al.) (1947), tried by one of those tribunals, the U.S. District Court for the District of Columbia issued temporary orders restraining the

Punishment

of War Crimes

427

conducted an important series of twelve trials in Nuremberg between October, 1946, and April, 1949, which were in the nature of a balanced program of trials of defendants representing all major segments of the T h i r d Reich. 48 Classed by subject matter and described by their popular names, the twelve trials are: the medical unit, namely the Medical and Milch cases; the legal unit, namely The Justice Case; the ethnological unit (Nazi racial policy), namely the Einsatzgruppen, RuSHA, and Pohl cases; the economic unit, namely the Flick, I. G. Farben, and Krupp cases; the military unit, namely the High Command and Hostage cases; the political and government unit, namely The Ministries Case.*9 T h e general effect of those trials was to uphold further and reinforce the principles set out in the Nuremberg Judgment. In assessing their significance and influence, U.S. Brigadier General Telford Taylor, chief of counsel for those trials states that the International Military Tribunal was based on enduring principles and not on temporary political expedients, and that those principles were reaffirmed in Control Council Law No. 10, and applied and refined in the twelve judgments under that law in the three-year period, 1947-1949. He points out that although the international political situation underwent revolutionary changes during those years, the principles of Nuremberg continued to be applied. 50 T h e U.S. military commissions in the Far East were also given jurisdiction to try all three types of crime defined in Article 6 of the charter of the Nuremberg Tribunal—war crimes, crimes against peace, and crimes against humanity. 51 Further, the condemnation at Nuremberg of crimes against humanity has since also been reinforced by the Genocide Convention, 1948,82 while its condemnation of crimes against peace finds a counterpart in the provisions of the United Nations Charter for the suppression of acts of aggression.53 execution of persons convicted and sentenced to death in that case. See TWC, 1192-1198. " T h e crimes are set out in Art. II.

XV,

" T e l f o r d T a y l o r , Final Report to the Sec. of the Army Crimes Trials under Control Council Law No. 10, p. 74. " S e e TWC, I-XV. t0 T e l f o r d T a y l o r , op. cit., p. 107.

War

on the Nuernberg

61 Regulations of G H Q , U.S. A r m e d Forces, Pacific, of Sept. 24, 1945, and Dec. 5, 1945, cited in History of the U.N. War Crimes Commission . . . , p. 215. 52 A b o v e , pp. 196 f. 63 See, Statement of Purposes of the U n i t e d Nations, Art. 1 (1), U . N . Charter. N o t e also that the peace treaties w i t h Italy, R u m a n i a , Bulgaria, H u n g a r y , and Finland, signed in Paris, Feb. 10, 1947, all provide for the apprehension and surrender for trial of persons accused of crimes against peace and h u m a n i t y , as well

428

Punishment

of War

Crimes

T h e Nuremberg trial and judgment of the major German war criminals was, therefore, not an isolated phenomenon, but the first comprehensive affirmation in judicial form of developments in the laws of war which have been taking shape ever since World War I, 54 and have been proceeding at an accelerated pace as a result of World War II. The principles represented in that massive judgment may now be regarded as firmly rooted in international criminal law and the laws of war, in spite of strong criticism which both the tribunal and its judgment have incurred from various quarters, including some jurists of high standing. In discussing the validity of that criticism, some reference should be made to the manner in which the case against the German leaders was prepared and the trial was conducted. T h e case involved the most laborious preparation, whose scope was described by U.S. Supreme Court Justice Robert H. Jackson, who acted as United States chief of counsel at the trial, as follows: W e must now sift and compress within a workable scope voluminous evidence relating to a multitude of crimes committed in several countries and participated in by thousands of actors over a decade of time. T h e preparation must cover military, naval, diplomatic, political, and commercial aggressions. T h e evidence is scattered among various agencies and in the hands of several armies. T h e captured documentary evidence—literally tons of orders, records, and reports—is largely in foreign languages. Every document and the trial itself must be rendered into several languages. A n immense amount of work is necessary to bring this evidence together physically, to select what is useful, to integrate it into a case, to overlook no relevant detail, and at the same time and at all costs to avoid becoming lost in a wilderness of single instances. 66

T h e spirit in which the prosecution was undertaken is exemplified by other statements from the same report: W e could execute or otherwise punish them without a hearing. B u t undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would violate pledges repeatedly given, and would not set easily on the American conscience or be remembered by our children with pride. The only other course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times and the horrors we deal with will permit, and upon a record that will leave our reasons and motives clear.m

Again, "We must see that it [the trial] is fair and deliberative and not discredited in times to come by any mob spirit. Those who have as conventional war crimes; see, for example, Art. 45 (1) of the Italian peace treaty. History of the U.N. War Crimes Commission . . . , p. 211; U.S. Treaties and Other International Acts Series, No. 1648. 64 See below, pp. 432 f. 66 Report of Mr. Justice Jackson, Trial of War Criminals, Documents (above, n. 13), P- u . 66Ibid., p. 3. Italics mine.

Punishment

of War Crimes

429

regard for the good name of the United States as a symbol of justice under law would not have me proceed otherwise." 67 In fact, no criticism can properly be directed against the manner in which the trial was actually conducted. This is admitted by those who have attacked various aspects of the judgment. For example, one such critic has stated: "I listened to some of the evidence given at Nuremberg and I have read all the published records of the Trial; and I should like to record my testimony as to the fairness and courtesy with which prisoners and witnesses were treated, and my personal conviction that the sentences pronounced on the evidence called or submitted were justified by the Charter and in accordance with ethical ideas of justice as generally accepted in this country." 58 Another adverse critic has referred to "the fairness, the infinite patience, and the latitude allowed to the Defence by the President, Lord Justice Lawrence," and cites as a " 'neutral' opinion . . . typical of all the rest" the following statement from the Swiss newspaper Der Bund (Berne) of August 23, 1946: "One may say that the accused have received, without exception, all the legal assistance (Rechtsbeistand) conceivable and that the interests of all of them were looked after (:wahrgenommen) in a most conspicuous manner." 59 All this must be taken into consideration in judging whether, as has been alleged in some quarters, this trial and judgment were merely an example of retribution meted out by the victors to the vanquished. 60 In assessing the quality of justice dispensed by any tribunal, it is essential to take into account the spirit in which the proceedings were conducted. Criticism of the tribunal has been directed against its jurisdiction and composition, the validity of the charges of crimes against peace and humanity, the charge of conspiracy, and the rulings of the tribunal on the pleas of superior orders and immunity of heads of states. With regard to the jurisdiction of the tribunal, it has already been pointed out 81 that it is clear law that any sovereign power has the right to punish offenses against international law, even when the offenses are directed neither against them nor their subjects. 62 Cer67

Ibid.,

p. 12.

Viscount M a u g h a m , formerly lord chancellor of Britain, in preface to Morgan, The Great Assize, p. vii. See also M a u g h a m , U.N.O. and War Crimes, p. 62. m Morgan, op. cit., p. 4. 68

*°See, for example, L o r d Crimes, p. 128.

H a n k e y in postscript

to M a u g h a m ,

U.N.O.

and

War

A b o v e , pp. 1 3 - 1 5 . See also the case of the 5.S. "Lotus" (1927)» Judgments of the Perm. C t . of Int. Justice, Series A, No. 10, at p. 19, which states regarding "international law as it stands at present" that: "Far f r o m laying down a general prohibition to the effect 61

62

430

Punishment

of War

Crimes

tainly, what each of the powers represented in the tribunal could have done singly they could do jointly. 63 In addition, the charter constituting the tribunal "was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world." 64 T h e tribunal, therefore, also derived its powers from what is known as an "act of state," and the validity of its jurisdiction from this source has been freely admitted by its critics. 65 Charges of war crimes have traditionally been tried by military courts, 66 although they may be tried by some other tribunal of competent jurisdiction designated by the belligerent concerned. 87 T h e courts set up by an occupying power are also termed military courts. However, although the Nuremberg Tribunal was termed "Military," it is obvious that in origin, scope, and personnel it was not limited by that appellation to trying conventional offenses against the laws and customs of war, but was an international criminal court exercising jurisdiction in a much broader sense. 68 It may be noted incidentally that, of the judicial personnel, only the Russian judges held military rank. Regarding the composition of the tribunal, it has been objected that the judges were composed only of representatives of the victor that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable." Wheaton, I, 269, states: " T h e judicial power of every independent State, then, extends with the qualifications mentioned . . . to the punishment of piracy and other offenses against the common law of nations, by whomsoever and wheresoever committed." See also Pompe, Aggressive War an International Crime, pp. 354-355. 68 Cf., Nuremberg Judgment, p. 48; Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, March 29, 1919, following World War I, 14 A.J.I.L. 122-124. 64 Nuremberg Judgment, p. 48. 66 Maugham, U.N.O. and War Crimes, p. 51. See also Morgan, op. cit. 68 Fyfe, in foreword to The Peleus Trial (Trial of Eck, et al.) (1945), Brit. Mil. Ct., Germany, WCT Series, I, xv-xvi, citing the Birkenhead Committee of 19181919; L.R.T.W.C., XV, 23, and examples there cited. m U.S. Rules 356; Br.M.M.L., chap, xiv, par. 449. 68 "Concededly, the International Military Tribunal, established under the London Agreement, was a court of international character." Flick v. Johnson, above; 44 A.J.I.L. 187. Concerning the Tokyo Tribunal, the U.S. Supreme Court stated: "We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. . . . T h e military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers." Koki Hirota, et al. v. Douglas MacArthur (1948), 69 Sup. Ct. 157; 43 A.JJ.L. at p. 170. See also on the Tokyo Tribunal, Keenan and Brown, op. cit., pp. 9-10.

Punishment

of War

Crimes

431

countries, that there were none from neutral or vanquished countries, and that the court did not, therefore, truly represent the international community. 69 International law certainly does not require that a court set up by a belligerent or belligerents to try war criminals should contain representation from the defeated or neutral countries, although such representation may be desirable on the face of it. 70 In practice, however, it might well be difficult to find neutral states which are prepared to abandon their neutrality to the extent of appointing such judicial representatives, and those judges, if appointed, may more reflect an attitude of political neutrality than of judicial impartiality. 71 T h e difficulty of finding truly neutral judges is also especially difficult in these days of ideological conflict. T h e mere fact that a state abstains from taking part in a conflict is no guarantee that its sentiments do not incline to one side or the other. 72 As for judges from the defeated belligerents, the trifling results of the trial of German nationals by German courts at Leipzig after World War I, and the tenderness displayed by German "denazification tribunals" 73 to those who appeared before them after World War II, are too fresh in memory to do other than cast doubt on the capacity and willingness of such judges to deal out even-handed justice and judge dispassionately the misdeeds of their countrymen. 74 89 Maugham, U.N.O. and War Crimes, pp. 27, 46, 105; Hankey in ibid., pp. 124125; Kelsen, " W i l l the Judgment in the Nuremberg T r i a l Constitute a Precedent in International Law?" Int. Law Quarterly, 1 (1947), 153. 70 Cf., Schwarzenberger, I, 312. 71 Lord W r i g h t stated: "Neutral judges were in fact not available." Foreword, L.R.T.W.C., X V , ix. 72 A t the T o k y o Trial, the defense objected to judges from the victorious nations "because such judges would be partial, unfair, and biased, so that the defendants could not possibly receive a fair trial." O n the other hand, the same defense objected to judges from such nations as India and the Philippines because those nations were not signatories of the Potsdam Declaration, or the Japanese Instrument of Surrender. Keenan and Brown, op. cit., p. 38. 73 Established in the U.S. occupation zone of Germany under the denazification law of March 5, 1946 ( T h e Law for the Liberation from National Socialism and Militarism); and in the British zone under Ordinance 69, effective Dec. 31, 1946, for the trial of members of the organizations declared criminal by the Nuremberg T r i b u n a l . T h e tribunals had power to award u p to 10 years imprisonment. History of the U.N. War Crimes Commission . . . , pp. 320, 464. For a tabulation of denazification statistics compiled as of the end of July, 1947, see Plischke, "Denazification L a w and Procedure," 41 A.J.I.L. 826. 74 See Fyfe, foreword to The Peleus Trial, p. xvii; see also the comments of the Netherlands Special Court of Cassation on experience having shown "that many a belligerent State, and especially Germany, proved to be insufficiently inclined to live u p to its international obligations towards its opponent with regard to the punishment of members of its own forces who had violated the rules of war to the prejudice of the opponents." Trial of Rauter (1949), L.R.T.W.C., X I V , 114. See also Hyde, II, 953-954, on the reluctance of the domestic tribunals of a belligerent to impugn its conduct of a war.

432

Punishment of War Crimes

On the other hand, where the judges are drawn from the victor countries, the very fact that their judgment may be impugned on this ground alone by those sympathetic to the accused is often sufficient to induce those judges to lean backward in order to avoid this imputation, as the various Nuremberg trials amply demonstrate.75 It may also be noted that in municipal law, criminal justice is invariably administered by representatives of the state which has been wronged by the accused's criminal actions.76 The chief criticism against the Nuremberg Tribunal and Judgment has been that there were no such offenses in international law as "crimes against peace," and that, therefore, none of the defendants should have been tried or convicted on such charges. In fact, as has already been indicated,77 the distinction between lawful and unlawful war has existed for centuries and only became obscured in comparatively recent times. Since World War I the wrongfulness of wars of aggression has been increasingly stressed in international relations, as the tribunal illustrated in its judgment with a wealth of example.78 It matters not that some of the treaties cited were never ratified and therefore never became legally binding on their parties. They were not adduced for that purpose, but to show the intention of the world community to brand aggressive war as an international crime.79 It may be noted that the term "war guilt" had been in common use since World War I. The former German Kaiser had been accused personally in that connection; and the question of where the guilt lay for World War I had been in continuous debate between Germany and the Allied Powers before the outbreak of World War II, Hitler being one of the chief protagonists in refuting that Germany was the guilty party as set out in the Treaty of Versailles, 1919. 80 It 76 See, for example, the recognition of the "grave responsibility" of a court composed of judges from one of the victor states in The Flick Case (United States v. Flick, et al.) (1947), U.S. Mil. Trib., Nuremberg, TWC, VI, 1189. 76 A n example of the inconsistency of the critics' arguments was the claim by some that the United States and Russia were in no position to condemn the German leaders of aggressive war, in view of the United States' declaration of strict neutrality at the beginning of World W a r II, and the allegation that the Soviet agreement with Germany just before the outbreak made Russia an accomplice of the aggression on Poland. Such an attitude is certainly not in accord with the thesis that the judges should have been drawn even from Germany itself. 77

Above, pp. 39 f. Nuremberg Judgment, pp. 49-52. T h e Tokyo Tribunal stated: "Aggressive war was a crime at international law long prior to the Declaration of Potsdam." Tokyo Judgment, p. 27. 79 Nuremberg Judgment, pp. 52-53. " S e e Art. 231 of that treaty. 78

Punishment

of War Crimes

433

cannot be said that Hitler and his associates were unaware that there could be guilt in connection with an unjustified war. A binding contractual obligation on the part of Germany not to engage in aggressive war was constituted by the Kellogg-Briand pact (Pact of Paris) of 1928, to which that country was a party and which it had ratified. But even apart from any legal obligation arising from treaty, it was obvious by the time World War II began that aggressive war was regarded by the world at large as an international crime in the fullest sense of that term. At that stage, it is certain that no state would have dared to claim in so many words its right to engage in a war of aggression. This is illustrated by the two most notorious cases of aggression preceding the German aggressions which led up to World War II, namely that of Japan against China in Manchuria in 1931, and that of Italy against Ethiopia in 1935. In the first case, Japan claimed that its aim was "to ensure the peace of the Orient and thereby contribute to the cause of peace throughout the world," and that the action of its army fell "within the just limits of self-defence." 8 1 In the second case, Italy informed the Council of the League of Nations that "the warlike and aggressive spirit in Ethiopia had succeeded in imposing war against Italy," and that, as a result of the aggression of the Ethiopian government, the Italian government found itself obliged to take the necessary measures of defense.82 In similar fashion, the Germans under Hitler justified their aggressions by putting forward reasons of a like nature.83 As Hitler said to his military chiefs on August 22, 1939, just before his aggression against Poland: "I shall give a propagandist cause for starting the war—never mind whether it is plausible or not. The victor shall not be asked later on whether we told the truth or not. In starting and making a war, not the Right is what matters, but Victory." 84 No clearer indication of the way the world regarded aggressive war can be given than the attempts of the guilty parties to cover up the true nature of their actions. They well knew that aggressive war was wrong, as illustrated by Hitler's remark "not the Right is what matters." They also knew perfectly well that once they had engaged in 81 Telegram from the Japanese minister of foreign affairs to the secretary-general of the League of Nations announcing Japan's withdrawal from the League, March 27, 1933. Keith, ed., Speeches and Documents on International Affairs 1918-19}7, I, 268, 270. 82 Oct. 3, 1931; Keith, ed., op. cit., II, 66. 83 See Nuremberg Judgment, pp. 16-46. 84 Ibid., p. 32.

434

Punishment

of War Crimes

aggressive war their only real salvation lay in victory and that it would go hard with them in the event of defeat. Hitler's words indicate plainly that in the event of defeat he realized that he and his associates would have to answer personally for their actions. Only in victory was there immunity. If aggressive war had not been a crime at the time Hitler made his statement, then obviously he could not have contemplated that he and his associates would have to answer for it in the event of defeat. T o suggest, therefore, that the category of crimes against peace had been newly invented by the London charter and the Nuremberg Judgment is to ignore the history of the preceding three decades. It is clear that the Nuremberg Judgment merely expressed in judicial form what the world community already regarded as law. 85 T h e maxim that there can be no punishment without a preexisting law (Nullum crimen sine lege, nulla poena sine lege) could have no application in this case, and the law applicable was in no sense retrospective (ex post facto). Such submissions were properly rejected by the tribunal. 86 In its judgment, the tribunal made it evident that it applied the law as it already existed. While it acknowledged it was bound by the provisions of the London charter, which specified various crimes against peace, the tribunal stated categorically that the charter was "not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law." 87 85 " B y the time the Nazis came to power it was thoroughly established that launching an aggressive war or the institution of war by treachery was illegal and that the defense of legitimate warfare was no longer available to those who engaged in such an enterprise." Report of Mr. Justice Jackson, Trial of War Criminals, Documents, p. 9. 80 Nuremberg Judgment, p. 49. Cf., " T h e interests of justice . . . do not tolerate that extremely serious violations of the generally accepted principles of international law, the criminal . . . character of which was already established beyond doubt at the time they were committed, should not be considered punishable on the sole ground that a previous threat of punishment was lacking." Trial of Rauter, above, L.R.T.W.C., X I V , at p. 120. 87 Nuremberg Judgment, p. 48. Cf., Tokyo Judgment, p. 23: "In our opinion the law of the Charter is decisive and binding on the Tribunal . . . T h e foregoing expression of opinion is not to be taken as supporting the view, if such view be held that the Allied Powers or any victor nations have the right under international law in providing for the trial and punishment of war criminals to enact or promulgate laws or vest in their tribunals powers in conflict with recognized international law or rules or principles thereof. In the exercise of their right to create tribunals for such a purpose and in conferring powers upon such tribunals belligerent powers may act only within the limits of international law."

Punishment

of War

Crimes

435

T h e tribunal then proceeded to consider "the state of international law in 1939, so far as aggressive war is concerned." In arriving at its conclusions on aggressive war, it pointed out that "international law is not the product of an international legislature," and that "the law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. T h i s law is not static, but by continual adaptation follows the needs of a changing world." 88 It may indeed be wondered why, if there were no such crimes as those against peace as the critics state, the defendants were ever proceeded against on those charges. Some of those same critics freely admit that the defendants who were convicted were properly found guilty on charges of very heinous offenses quite apart from the crimes against peace alleged against them. 89 No one defendant was convicted solely of crimes against peace. T h e charges of crimes against peace were, therefore, not essential to the conviction of the defendants. If the purpose of the charges of crimes against peace was the political one of demonstrating that the responsibility for the disastrous World W a r II lay on Germany and the shoulders of the accused individually, those who laid the charges had no reason to believe that the tribunal would deal with those charges other than in a purely judicial spirit and upon a strictly legal basis. Admittedly, the tribunal was bound by the charter, but the charter provisions were not followed blindly. T h e y were subjected to careful judicial scrutiny before they were finally approved by the tribunal. T h e simple reason why the defendants were tried and convicted on charges of crimes against peace is that such crimes were known to international law, were punishable, and that the defendants had committed offenses of that nature. T h e attitude of the prosecution in preferring those charges is clearly expressed by the U.S. chief of counsel in a report which he made while the trial was still in preparation: T h e legal position which the United States will maintain, being thus based on the common sense of justice, is relatively simple and non-technical. W e must not permit it to be complicated or obscured by sterile legalisms developed in the age of imperialism to make war respectable. Doubtless what appeals to men of good will

Nuremberg Judgment, p. 51. See also above, p. 6. Maugham, V.N.O. and War Crimes, p. 61; Morgan, op. cit., pp. 5, 40. Morgan states that the " m o r a l " guilt of the defendants, as opposed to the "legal" guilt, was established on the disputed counts of conspiracy, crimes against peace, and crimes against humanity (at p. 5). 88 89

436

Punishment

and common sense as the crime which comprehends of making unjustifiable war.""

of War

all lesser crimes, is the

Crimes crime

It was the vindication of this principle which was sought at the trial, and in pursuing this purpose certainly no injustice was inflicted upon the accused. It may be noted that the tribunal limited the crime of conspiracy to conspiracy to commit crimes against peace. It took this view by construing the terms of the charter. However, even this limited application of the crime of conspiracy has been attacked on the ground that conspiracy is an Anglo-American legal conception and is not universally recognized in other legal systems.91 T h e objection, however, is not one of substance, because even if the Continental legal systems do not recognize the crime of conspiracy to the same degree as the countries which apply Anglo-Saxon law, all systems of law recognize the criminal responsibility of those who conceive, plan, organize, order, or instigate criminal activities which are carried into effect. It matters not whether the crime is charged as conspiracy or as some other offense; the essence is the criminality of the activities designated. T h e validity of the charges of crimes against humanity has been attacked on the basis that, except where such crimes are conventional war crimes, that is, violations of the laws and customs of war, they are matters which come solely within the domestic jurisdiction of the states concerned, and cannot be adjudicated under international law. It is true that the two categories of crimes against humanity and war crimes overlap, and that in many cases crimes against humanity are also war crimes. For instance, the indictment at the Tokyo Trial did not charge the two classes of crimes separately, but included them in the same counts under one general head. 92 However, the conception of crimes against humanity as formulated in the charter was designed to cover inhumane acts committed in execution of or in connection with crimes against peace or conventional war crimes which do not fall within the latter category. T h e category of crimes against humanity in the charter was clearly 90 Report of Mr. Justice Jackson, Trial of War Criminals, Documents, p. 8. Italics mine. 81 B u t see, for example, Art. 265, French Code Pénal: "Any association formed, whatever its duration or the numbers of its members, and any undertaking arrived at for the purpose of preparing or committing crimes against persons or against property, constitutes a crime against the public peace." Various war criminals were convicted under this provision by French military tribunals; see L.R.T.W.C., VI, 106. 83 See G r o u p T h r e e of the indictment. Trial of Japanese War Criminals, Documents (U.S. Dept. of State Pub. 2613, Far Eastern Series 12, 1946), pp. 60-62.

Punishment

of War

Crimes

437

derived f r o m the p r e a m b l e to H a g u e C o n v e n t i o n I V , 1907, that concerning the laws a n d customs of war on land, w h i c h states: Until a more complete code of the laws of war can be drawn up, the High Contracting Parties deem it expedient to declare that, in cases not covered by the rules adopted by them, the inhabitants and the belligerents remain under the protection and governance of the principles of the law of nations, derived from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience. 93 In

fact,

crimes

against

humanity

have

long

been

a

matter

i n t e r n a t i o n a l concern, even w h e n they h a v e b e e n u n c o n n e c t e d

of

with

i n t e r n a t i o n a l war. T h e nature of these crimes, enormities usually on the g r a n d

scale, 94 has b e e n such as to take t h e m o u t of the

mere

See also Report of Mr. Justice Jackson, Trial of War Criminals, Documents, which states: " O u r people felt that these were the deepest offenses against that International Law described in the Fourth Hague Convention of 1907 as including the "laws of humanity and the dictates of the public conscience" (p. 6). Delineating the legal charges to be preferred against the Nazi leaders, the report sets out: "(b) Atrocities and offenses, including atrocities and persecutions on racial or religious grounds, committed since 1933. T h i s is only to recognize the principles of criminal law as they are generally observed in civilized states. T h e s e principles have been assimilated as part of International Law at least since 1907. T h e Fourth Hague Convention provided that inhabitants and belligerents shall remain under the protection and rule of "the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience" (pp. 7-8). 93

94 See The Justice Case (United States v. Altstoetter, et al.) (1947), U.S. Mil. T r i b . , Nuremberg, L.R.T.W.C., VI, 47, 49-50. In that case the court stated: " W e hold that crimes against humanity as defined in Control Council L a w 10 must be strictly construed to exclude isolated cases of atrocities or persecutions whether committed by private individuals or by a governmental authority. As we construe it, that section provides for the punishment of crimes committed against German nationals only where there is proof of conscious participation in systematic governmentally organized or approved procedures, amounting to atrocities and offenses of that kind specified in the act and committed against populations or amounting to persecutions on political, racial or religious grounds" (p. 47).

A similar concept of war crimes had previously been expressed by the U.N. W a r Crimes Commission: "Isolated offenses do not fall within the notion (of crimes against humanity). As a rule systematic mass action, particularly if it can be shown to be authoritative, will be necessary to transform a common crime, punishable merely under municipal law, into a crime against humanity which thus becomes also the concern of International Law. Only crimes which either by their magnitude and savagery or by their great number or by the fact that a similar pattern is applied at different times and places, endanger the international community, or shock the conscience of mankind, warrant intervention by States other than that on whose territory the crimes have been committed, or whose subjects have become their victims." L.R.T.W.C., XIII, 136. Cf., In re Ahlbrecht (No. 2) (1949), Special Court of Cassation, Holland, Ann. Dig., 1949, Case N o . 141. However, under the continuing development of the concept of crimes against humanity, it is possible for a single act to constitute such a crime. T h i s has already been pointed out in connection with the Genocide Conv., 1948, where, under the terms of that convention, a single act could be construed as the crime of genocide, and, therefore, a crime against humanity; above, p. 200.

438

Punishment

of War

Crimes

domestic jurisdiction of the state w h i c h has tolerated or encouraged the excesses. T h e y too closely affect the stability of the civilized w o r l d . T h e r e have been numerous cases d u r i n g the nineteenth a n d twentieth centuries where the shocking treatment by a state of its o w n subjects m o v e d other states to intervene on " g r o u n d s of h u m a n i t y , "

95

as for

instance, in the massacre of Christians in A r m e n i a a n d Crete u n d e r 1891-1896,96

the O t t o m a n empire, in A r m e n i a n s in 1 9 1 5 ,

97

a n d further massacre of

the

a n d the persecution and massacre of the J e w s

u n d e r tsarist Russia, 1 8 8 2 and 1 9 0 3 . 9 8 Intervention by other states was the only machinery the existing state of international law provided, in the absence of an international criminal court of justice. T h e

term

"crimes against h u m a n i t y

1919

a n d civilisation"

was used by

the

Commission on Responsibilities in its report of M a r c h 29, 1 9 1 9 , to the Preliminary Peace C o n f e r e n c e of Paris in relation to such enormities as the massacre of A r m e n i a n s d u r i n g W o r l d W a r I by T u r k e y and Germany.99 T h e interest of the c o m m u n i t y of nations in the prevention

and

p u n i s h m e n t of the crime of genocide, a signal e x a m p l e of a crime against

humanity,

was

discussed

earlier, 1 0 0

and

resulted

in

the

G e n o c i d e C o n v e n t i o n of 1948. It is notable that the convention b y its terms indicates that genocide was a crime u n d e r international law

86 See generally on "humanitarian intervention," Stowell, Intervention in International Law, pp. 51-277; Rolin, I, pars. 165-168. Copious examples of humanitarian intervention by one state as against another state to prevent the latter from committing atrocities against its own subjects, and authorities for such action, are cited in The Justice Case, above, L.R.T.W.C., VI, 45-48. T h e court pointed out that Germany under Hitler itself applied this principle: "Hitler expressly justified his early acts of aggression against Czechoslovakia on the ground that the alleged persecution of the racial Germans by the government of that country was a matter of international concern warranting intervention by Germany . . . the principle invoked by Hitler was one which we have recognized, namely that governmentally organized racial persecutions are violations of international law" (at p. 48). T e n w i c k , p. 242. "Stowell, op. cit., pp. 80-82, citing diplomatic intervention by the United States. See also declaration of May 28, 1915, by France, United Kingdom, and Russia denouncing the Armenian massacres as "crimes against humanity and civilization" for which all members of the Turkish government would be held responsible as well as its agents implicated in the massacres. History of the U.N. War Crimes Commission . . . , p. 35. "Stowell, op. cit., pp. 74-79. "History of the U.N. War Crimes Commission . . . , p. 35. 100 Above, pp. 196 f. See also The Justice Case, above, L.R.T.W.C., VI, 48, where genocide is described as "the prime illustration of a crime against humanity . . . which by reason of its magnitude and its international repercussions has been recognized as a violation of common international law."

Punishment

of War

Crimes

439

before the convention came into being, and that it was such a crime whether committed in time of peace or war. 1 0 1 T h e definition of crimes against humanity adopted by the charter may, therefore, be regarded as a restricted one in view of the limitation of such crimes to those committed "in execution of or in connection with" crimes against peace and conventional war crimes. T h e restriction was no doubt motivated by the fact that the accused were being prosecuted solely as war criminals. As a result, the tribunal excluded from its consideration many "revolting and horrible" crimes which were not satisfactorily proved to have been done in execution of or in connection with the other two categories of crimes within its jurisdiction. 102 However, the restriction was "deliberately omitted" 103 in the definition of crimes against humanity contained in Article I (c) of Control Council Law No. 10 for Germany; 1 0 4 the law which was designed to apply the principles of the Nuremberg charter to the trial of war criminals and other similar offenders in Germany, with the exception of those dealt with by the International Military Tribunal. 1 0 5 Certainly no other issue than that of jurisdiction could be raised in connection with crimes against humanity, because the offenses specified in Article 6 (c) of the charter are criminal by all standards of civilized humanity. However, as has been seen, there is ample warrant for regarding such offenses as crimes against international law, and it would indeed be strange if actions of that nature were to be considered as matters solely within the domestic jurisdiction of the state concerned. 101 See Art. I, Genocide Conv., 1948, above, p. 200. In that article, the contracting parties "confirm" that genocide is a crime against international law, whether in peace or war. 102 Nuremberg Judgment, p. 84. 103 The Justice Case, above, TWC, III, 974 (judgment). T h i s case was tried under Control Council Law No. 10. 101 Art. I (c) reads: "Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts, committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated." C/., Art. 2 (11), D r a f t Code of Offenses against the Peace and Security of Mankind, formulated by the U.N. Law Commission: " I n h u m a n acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, Teligious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities." T h e acts enumerated are punishable whether or not they are committed in connection with other offenses defined in the draft code. U.N. Gen. Ass. Off. Recs., 9th Sess., Suppl., no. 9, A/2693 (1954), p. 10. 106

See above, p. 425.

44o

Punishment

of War

Crimes

In regard to objections which have been leveled against the rulings of the tribunal on the pleas of obedience to superior orders and the immunity of heads of states, the critics are divided amongst themselves. O n e strong critic of certain aspects of the judgment has nothing but praise on this score, stating that the tribunal "laid down sound law on two hitherto somewhat debatable, or rather debated, questions." 106 H e points out that the plea of superior orders "was long ago rejected by all international lawyers of repute as bad in law," 107 and that "there was no authority for it in International L a w . " 108 T h e German Military Penal Code (Militarstrafgesetzbuch) itself, section 47, stated: "If the criminal law is violated by the execution of an order in the course of service, the commanding superior is alone responsible therefor. However, the subordinate obeying is liable for participating, i. if he has exceeded the order given, or 2. if it was known to him that the order concerned an action the purpose of which was to commit a general or military crime or misdemeanour. If the guilt of the subordinate is minor, his punishment may be suspended." 1 0 9 T h a t is, even under German military law superior orders offers no defense when the subordinate w h o acts in conformity with those orders "knows that his superiors have ordered him to do acts which involve a civil or military crime or misdemeanour." 1 1 0 In such case the subordinate may be punished as an accomplice. T h e loo Morgan, The 107

Ibid.,

Great Assize, p. 8.

p. 3.

lxIbid.,

pp. 12-13. M o r g a n

traces superior orders as a defense to the

German

Military Code (Militärstrafgesetzbuch), from which, h e states, O p p e n h e i m BrM.M.L.,

amended in April, 1944. U.S. Rules amended in Nov., 1944. In The

347 also took the same position u n t i l it was

Hostage

U.S. M i l . T r i b . , Nuremberg, L.R.T.W.C., plea of

derived

chap, xiv, par. 443, which supported the defense of superior orders until

superior orders:

"We

think

Case

(United

States v. List,

et al.) (1948),

V I I I , 51, the court stated regarding

Professor

Oppenheim

espoused

a

the

decidedly

minority view." As late as 1948, the Netherlands Special C o u r t of Cassation (Court of Appeal) held there was no general rule of international law excluding the defense of superior orders. Trial

of Zuehlke

(1948), L.R.T.W.C.,

X I V , 149. T h i s view

does not correspond with general opinion on international law

(ibid., p. 151), and,

in fact, the law as actually applied by the court conformed to the general

view

(ibid., pp. 149-151). In the law applicable to the Netherlands East Indies, as distinct from metropolitan D u t c h law, superior orders did not in themselves constitute a defense. Art.

1, N.E.I. Statute Book Decree N o . 45 of

1946; see L.R.T.W.C.,

XI,

98-99109

A d o p t e d in 1872 and amended slightly in 1940; see L.R.T.W.C.,

110

The

Case of the Dover

Castle

(Case

of Karl

the G e r m a n Supreme Ct., German

War Trials,

The

et al.)

Peleus

Trial

(Trial

of Eck,

Neumann)

X I I , 72-73.

(1921), J u d g m e n t of

C m d . 1450 (1921), A p p . V , cited in

(1945), Brit.

Mil.

Ct., Germany,

Series, I, A p p . X , p. 187. T h e

1940 amendment of Sec. 47 of the G e r m a n

Penal

word

Code,

L.R.T.W.C.,

substituted X I I , 72-73.

the

"general"

for

"civil"

in

the

WCT

Military

provision;

see

Punishment

of War Crimes

441

subordinate may also "be held responsible if he has gone beyond the orders given to him." 1 1 1 T h e responsibility of a subordinate who carries out an obviously illegal order was further emphasized by the German Supreme Court in two cases which arose out of World War I. Both involved submarine warfare. In one case, that of the Llandovery Castle (Case of Dithmar and Boldt), two German officers were sentenced for carrying out an illegal order of a German submarine commander to fire on the survivors of a torpedoed hospital ship who had taken refuge in lifeboats, as a result of which several lifeboats were sunk and their occupants killed. 112 In the other case, that of the Dover Castle (Case of Neumann), the accused, a German submarine commander, was acquitted on a charge of sinking a British hospital ship on the orders of the German Admiralty since the court held that he was of the opinion that those orders "were legitimate reprisals." 1 1 3 In the war-crimes trials which arose out of World War II, many accused, both military and civilian, offered the defense of superior orders; but, even before the Nuremberg Tribunal had delivered its judgment, war-crimes courts refused to accept such pleas as a justification for obviously illegal acts. T h e judgments of two British military courts which derived their authority from Royal Warrant, and not from the London charter, will serve as examples. In The Peleus Trial (Trial of Eck, et al.), where judgment was delivered on October 20, 1945, the court held that the orders of a submarine commander did not excuse his subordinates for the obviously illegal act of firing on and killing the survivors of a torpedoed merchant ship, who were then on rafts or clinging to wreckage. 114 In The Falkenhorst Trial (Trial of von Falkenhorst), where judgment was given on August 1, 1946, it was held that the orders of Hitler, the German head of state, did not excuse the German commanding general in Norway for issuing obviously illegal orders to the members of his command not to accept or give quarter in regard to Allied soldiers, sailors, or airmen taking part in commando operations, and, further, to kill them after capture. 115 T h e accused, Falkenhorst, was found guilty on such charges, even though there was some pretended attempt in Hitler's orders to him (the "Fuhrerbefehl" of October 18, The Case of the Dover Castle, above, p. 186. The Case of the Llandovery Castle (Case of Dithmar and Boldt) (1921), German Supreme Ct., German War Trials, Cmd. 1450 (1921), App. VI, cited in The Peleus Trial, above, WCT Series, I, App. IX; Hudson, Cases, p. 1393. 118 The Case of the Dover Castle, above, p. 187. m Above. 115 Brit. Mil. Ct., Germany, WCT Series, VI. m

132

442

Punishment

of War Crimes

1942) to claim that they were in the nature of reprisals for illegal acts of warfare by the enemy. It may also be noted that in an article intended to justify the murder of Allied pilots by German mobs, Goebbels, Hitler's propaganda minister, wrote in his newspaper, the official Nazi publication, the Völkischer Beobachter, on May 28, 1944: " T h e pilots cannot validly claim that as soldiers they obeyed orders. No law of war provides that a soldier will remain unpunished for a hateful crime by referring to the orders of his superiors, if these orders are in striking opposition to all human ethics, to all international customs in the conduct of war." 1 1 6 T h e accused at Nuremberg had no reason to complain of the tribunal's ruling on the plea of superior orders. (For further discussion of the plea of superior orders, see below, under that heading.) As for the immunity of heads of states and their immediate agents, diplomatic and military, 117 Morgan points out that this immunity does not apply in time of war, 118 illustrating this by reference to the noted Swiss-German international jurist Bluntschli, 119 and to Chief Justice Marshall's judgment in the classic case of The Schooner Exchange v. M'Faddon, et al.120 This case was in fact the authority relied upon by the United States representatives on the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, constituted by the Preliminary Peace Conference, Paris, 1919, following World War I, for their dissent from the commission's conclusion 121 that chiefs of states and their agents are liable to criminal prosecution for offenses against the laws and customs of war or the laws of humanity. 122 Ibid., Introduction, x x x i x - x l ; The High Command Case (United States v. von Leeb, et al.) (1948), U.S. Mil. Trib., Nuremberg, L.R.T.W.C., XII, 73. 117 "The fact that a person w h o committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him f r o m responsibility- under international law." Principle III, "Principles of International Law Recognized in the C h a r t e r of the Nürnberg T r i b u n a l and in the J u d g m e n t of the T r i b u n a l , " formulated by the U.N. International Law Commission, U.N. Gen. Ass. Off. Rees., ;th Sess., Suppl., No. 12, A/1316 (1950), p. 12. Morgan, op. cit., pp. 16-17; s e e a l s o W r i g h t , in foreword, History of the U.N. War Crimes Commission . . . , p. vii. 119 Bluntschli, Das moderne Völkerrecht der Civilisirten Staten, par. 596, where Lieber's American Instruction 50 is cited in support of the view that the enemy sovereign and his minister of foreign affairs may be made prisoners of war. Bluntschli states that since these persons have brought about the war, o r at least decided upon it, it is only just that they should be rendered responsible for it and share its dangers. 120 (1812), Supreme Ct. of the U.S., 7 Cranch 116. m See commission's conclusion on personal responsibility, 14 A.J.I.L. 117. 1 2 2 See 14 A.J.I.L. 135-136. T h e U.S. representatives on the commission were

Punishment

of War Crimes

443

However, the United States representatives confined their dissent "to a head of a state actually in office and engaged in the performance of his duties. They do not apply to a head of a state who has abdicated or has been repudiated by his people." 123 T h e dissent was further confined "to liability of the head of a state for violations of positive law in the strict and legal sense of the term. They are not intended to apply to what might be called political offences and to political sanctions. These are matters for statesmen, not for judges, and it is for them to determine whether or not the violators of the treaties guaranteeing the neutrality of Belgium and Luxemburg should be subjected to a political sanction." 124 Concerning The Schooner Exchange v. M'Faddon, et al, while it was there held that a sovereign who enters foreign territory "with the knowledge and license of its sovereign" is exempt from arrest or detention within that territory, the court stated there was no settled rule of that nature where a sovereign entered "without the consent of that other, expressed or implied," but rather that in such case he placed "a romantic confidence in [the] magnanimity" of the other sovereign not to exercise such jurisdiction. Later in the judgment, the court said plainly that where an army enters foreign territory without express consent, the persons composing that army have no immunity from the jurisdiction of the sovereign whose territory they have violated. In any case, the court clearly indicated that the immunity of sovereigns from foreign jurisdiction was implicitly a reciprocal arrangement between persons of "perfect equality and absolute independence" impelled by a common interest "to mutual intercourse, and an interchange of good offices with each other." It is obvious, therefore, that the basis for the personal immunity of a sovereign is destroyed when he unlawfully attacks the territory of another foreign sovereign, since by no stretch of the imagination can such an action be regarded as a form of mutual intercourse or an interchange of good offices.125 Robert Lansing, the chairman, and James Brown Scott, technical delegate. For contemporary disagreement with the dissent of the U.S. representatives, see Garner, "Punishment of Offenders against the Laws and Customs of W a r , " 14 A.J.I.L. 92-94. See also Garner, International Law and the World War, II, 488-498, in favor of the criminal responsibility of chiefs of state. 128 14 A.J.I.L. 136. ™Ibid. 125 The Schooner Exchange v. M'Faddon, et al. (1812), above, 7 Cranch, at 137, 138, 140; Evans, Leading Cases, pp. 233, 234, 236. Hyde, III, 2410-2411, footnote, points out that Chief Justice Marshall in his judgment in that case "in discussing the reasons for the immunity from local jurisdiction of a foreign sovereign, addressed himself to the inquiry why in fact States had waived their right of jurisdic-

444

Punishment

of War

Crimes

In an important Polish war-crimes case heard before the Supreme National T r i b u n a l of Poland, where judgment was delivered earlier than in the Nuremberg Judgment, the accused submitted unsuccessfully that his acts "were acts of State for which he could only be responsible before a court of his own State and not of another State, as in the latter event this would be contrary to international law." 126 It may also be recalled that following W o r l d W a r I the Treaty of Versailles, 1919, Article 227, provided for the trial of the former German Kaiser "for a supreme offence against international morality and the sanctity of treaties," although he was not brought to trial because of the refusal of the Dutch government, which had granted him asylum, to surrender him. T h e r e are no binding precedents in international law, as has been previously mentioned. 127 So far as the Nuremberg Judgment is a precedent, therefore, it is persuasive. T h e authority of a persuasive precedent must depend upon its own intrinsic merits; that is, on how far its reasoning and the principles it expresses convince other tribunals that they should apply the decision in their own judgments. T h e r e is little doubt that in any future trial of war criminals the Nuremberg Judgment must carry great weight, not only on its own merits as a full, conscientious judgment of unparalleled scope issued by a unique tribunal representative of the greatest part of civilized mankind, but also because the judgment has since been followed and confirmed in a long line of important war-crimes trials, by resolutions of the United Nations General Assembly, by the labors of the United Nations International Law Commission, and the incorporation of various of its principles in multilateral international convention, rather than to one touching the question whether the acts of such an individual were essentially non-justiciable." In Ulen and Co. v. Bank Gospodarstwa Krajowego (National Economic Bank) (1940), 24 N.Y.S.ad 201 (Supreme Ct. of New York, A p p . Div.); Ann. Dig., 1938-1940, Case N o . 74, it was held (per Close J.); " T h e immunity of the domestic sovereign is based on the historic principle that no court has power to command the King. The Parlement Beige (1880), 5 L.R.P.D. 197. T h e immunity of the foreign sovereign rests on a somewhat different theory. It is founded on an implied consent on the part of all sovereigns, as a matter of comity, to a relaxation of the complete jurisdiction which each naturally enjoys within his own territory. The Schooner Exchange v. M'Faddon, 7 Cranch 116, 11 U.S. 116, 136, 3 L.Ed. 287. Theoretically, therefore, the immunity of the domestic sovereign is a matter of favor granted voluntarily by the domestic government." ™ Trial of Greiser (1946), L.R.T.W.C., X I I I , 117; judgment delivered July 7, 1946. See also Trial of Buhler (1948), Polish Supreme National T r i b u n a l , L.R.T.W.C., X I V , 39; In re von Lewinski (called von Manstein) (1949), Brit. Mil. Ct., Germany, Ann. Dig., 1949, Case No. 192, at pp. 523-524. 127 Above, pp. 7-8.

Punishment

of War Crimes

445

tions such as the Genocide Convention, 1948, and the Geneva Conventions for the Protection of War Victims, 1949. 128 In another sense, the political sense, the nations which lent their names and authority to the Nuremberg and T o k y o tribunals will be hard put to deny the validity of those judgments in future war-crimes trials. T h i s was clearly emphasized by the President of the United States in his address to the United Nations General Assembly on October 23, 1946, when he said, " I remind you that twenty-three Members of the United Nations have bound themselves by the Charter of the Nürnberg Tribunal to the principle that planning, initiating or waging a war of aggression is a crime against humanity for which individuals as well as States shall be tried before the bar of international justice." 1 2 9 CRIMES AGAINST PEACE T h e various offenses at present recognized as crimes against peace are chiefly set out in Article 6 (a) of the charter of the Nuremberg Tribunal and in the judgment of that tribunal. Article 6 (a) recognizes any of the following acts as crimes against peace: 1. Planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances. Each of the actions specified constitutes a separate and distinct crime, namely, the planning forms one offense, the preparation another, the initiation and waging yet two other crimes against peace. 2. Participation in a common plan or conspiracy for the accomplishment of any of the foregoing crimes against peace. N o definition of "a war of aggression" is given in either the charter 128 See the articles in each of these Geneva conventions on penal sanctions for persons responsible for grave breaches of that convention, e.g., Arts. 146, 1 4 7 , Geneva Conv. I V , 1949. 129 President T r u m a n at the 34th plenary meeting, Verbatim Record of the General Assembly, Off. Rees., ist Sess., 2d pt. (Oct. 2j-Dec. 16, 1946), p. 684, cited in U . N . Sec.-Gen.'s Memo., The Charter and Judgment of the Nürnberg Tribunal, History and Analysis, p. 1 1 . Cf., " T h e law of the T o k y o case . . . should especially be followed and respected by the eleven prosecuting nations because of their reliance upon it to prove the guilt of J a p a n ' s former leaders." Keenan and Brown, Crimes Against International Law, p. 160; " A s the members of the U n i t e d Nations affirmed the principles recognized by the Charter of the N u r e m b e r g T r i b u n a l and the J u d g m e n t of the T r i b u n a l in a resolution passed by the General Assembly in 1946, it may also be held that they will be estopped in f u t u r e from contesting the criminal character of aggressive w a r . " Schwarzenberger, I, 264.

446

Punishment

of War

Crimes

of the Nuremberg Tribunal or that of the Tokyo Tribunal. Neither do the Nuremberg and Tokyo judgments expressly define aggressive war, although they do illustrate in the acts of the defendants examples of aggressive war. T h e Tokyo Judgment stated in regard to the wars of aggression which Japan launched against Britain, the United States, and the Netherlands on December 7, 1941, that "they were unprovoked attacks, prompted by the desire to seize the possessions of these nations. Whatever may be the difficulty of stating a comprehensive definition of 'a war of aggression,' attacks made with the above motive cannot but be characterized as wars of aggression." 1 3 0 T h e Nuremberg Judgment appeared to make a distinction between "acts of aggression" such as the German seizure of Austria and Czechoslovakia in 1938 and 1939, and a "war of aggression" such as that against Poland which began on September 1, 1939. 1 3 1 T h e nature of the distinction would appear to be that "acts of aggression" encounter little or no armed resistance. 132 T h e Toyko Tribunal, however, did not differentiate between acts of aggression and wars of aggression, 133 and, in any case, the Nuremberg Judgment made it clear in its judgments on the individual offenders that acts of aggression are equally crimes against peace, as did later war-crimes trials. 134 A definition of aggressive war has been given earlier in this work in discussing lawful and unlawful war. 1 3 5 130

Tokyo Judgment, p. 994; U.N. Sec.-Gen.'s Memo., p. 85. On the nature of aggression, and the difficulty (or desirability) of defining it comprehensively, see Pompe, Aggressive War an International Crime, particularly chap, ii, pp. 3 9 - 1 1 5 ; Kelsen, Collective Security under International Law, U.S. Naval War College, International Studies X L I X , 69-86; Stone, Aggression and World Order, passim. m Nuremberg Judgment, p. 16. 132 U.N. Sec.-Gen.'s Memo., p. 49. Ibid., p. 85. m S e e The Ministries Case (United States v. von Weizsaecker, et al.) (1949), U.S. Mil. Trib., Nuremberg, TWC, X I I , 354, where Weizsäcker was convicted of crimes against peace in connection with the seizure of Bohemia and Moravia in 1939. 185 Above, pp. 41-42. T h e Draft Code of Offenses against the Peace and Security of Mankind gives this definition, not intended to be exhaustive: "Article 2. T h e following acts are offenses against the peace and security of mankind. (1) Any act of aggression, including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective selfdefense or in pursuance of a decision or recommendation by a competent organ of the United Nations." U.N. Doc. A/CN.4/48 of July 30, 1951, p. 35; U.N. Gen. Ass. Off. Rees., pth Sess., Suppl., No. 9, A/2693 (1954), p. 1 1 . Georges Scelle, French member of the International Law Commission gave the following definition of aggression: "Aggression is an offense against the peace and security of mankind. This offense consists in any resort to force contrary to the provisions of the Charter of the United Nations, for the purpose of modifying the state of positive international law in force or resulting in the disturbance of public order." UJM. Doc. A/CN.4/48, above, p. 30. Cf., the U.S.S.R. Conventions for the Definition of Aggression, concluded J u l y 3, 1933, with Afghanistan, Esthonia, Latvia, Persia, Poland,

Punishment

of War

Crimes

447

A s for a w a r in violation of international treaties, agreements, or assurances, the term "assurances" has been understood by the U n i t e d N a t i o n s International L a w Commission as i n c l u d i n g any pledge or guarantee of peace given by a state, even u n i l a t e r a l l y . 1 3 6 T h e U n i t e d N a t i o n s General Assembly, in Resolution 3 8 0

(V) of

N o v e m b e r 1 7 , 1950, has stated that any aggression " i s the gravest of all crimes against peace a n d security throughout the w o r l d . " T h e charter and j u d g m e n t of the N u r e m b e r g T r i b u n a l

m a k e it clear that all

stages in the bringing about of a criminal w a r constitute

separate

crimes against peace, from the p l a n n i n g stage to the actual w a g i n g of the war. C o n c e r n i n g the law as to the " c o m m o n p l a n or conspiracy" to engage in u n l a w f u l war, the charter does not define conspiracy. H o w e v e r , the concept of conspiracy is well k n o w n to A n g l o - S a x o n law where it is Rumania, and Turkey, which in Art. II gave the definition: " T h e aggressor in an international conflict, with due consideration to the agreements existing between the parties involved in the conflict, will be considered the State which will be the first to commit any of the following acts: 1. Declaration of war against another State; 2. Invasion by armed forces, even without a declaration of war, of the territory of another State; 3. An attack by armed land, naval or air forces, even without a declaration of war, upon the territory, naval vessels, or aircraft of another State; 4. Naval blockade of the coasts or ports of another State; 5. Aid to armed bands formed on the territory of a State and invading the territory of another State, or refusal, despite demands on the part of the State subjected to attack, to take all possible measures on its own territory to deprive the said bands of any aid and protection." Keith, ed., Speeches and Documents on International Affairs 1918-1937, I, 281-282. Colombia in signing the Convention to Coordinate, Extend and Assure the Fulfillment of the Existing Treaties between the American States, concluded at the Pan-American Conference for the Maintenance of Peace, Buenos Aires, 1936, included this definition in a reservation: "That State shall be considered as an aggressor which becomes responsible for one or several of the following acts: (a) That its armed forces, to whatever branch they may belong, illegally cross the land, sea or air frontiers of other States. When the violation of the territory of a State has been effected by irresponsible bands organized within or outside of its territory and which have received direct or indirect help from another State, such violation shall be considered equivalent, for the purposes of the present article, to that effected by the regular forces of the State responsible for the aggression; (b) That it has intervened in a unilateral or illegal way in the internal or external affairs of another State; (c) That it has refused to fulfill a legally given arbitral decision or sentence of international justice. No consideration of any kind, whether political, military, economic or of any other kind, may serve as an excuse or justification for the aggression here anticipated." 31 A.J.I.L. Suppl., 62. la ® Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal," in Report of International Law Commission covering its 2d sess., June 5-July 29, 1950. Gen. Ass. Off. Rees., 5th sess., Suppl., No. 12, A / i 3 i 6 (1950), p. 115.

44

8

Punishment

of War

Crimes

defined as an agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. 137 Both the Nuremberg and T o k y o judgments on conspiracy conform to this definition, although only in the latter judgment is an actual definition of conspiracy given. 138 According to the Nuremberg Tribunal, "the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and of action. . . . T h e T r i b u n a l must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan." 139 T h e tribunal held that it is not necessary to establish "a single master conspiracy" 140 between the accused, but that to prove conspiracy it is sufficient to establish "the common planning to prepare and wage war" by the defendants, which may be "continued planning with aggressive war as the objective." 1 4 1 T o sum u p the elements which must be present for planning to constitute a criminal conspiracy, there must be common planning, which must result in one or more concrete plans, and the objective of the plan or plans must be the preparation and waging of unlawful war. 1 4 2 T h e crime of conspiracy is complete as soon as the conspirators have arrived at their agreement, and without further implementation. Criminal conspiracy to wage aggressive war need not have as its objective a particular war of aggression. It is sufficient if the conspirators agree upon "the use of aggressive war as a general instrument of policy." 1 4 3 T h e planning of a specific war in furtherance of the conspiracy forms a separate crime against peace. T o be a party to the conspiracy it is not necessary that each conspirator should share in the plan to the same degree. Common planning can exist where there is a complete dictatorship. 144 A plan in the execution of which a number of persons participate is still a plan, even though conceived by only one of them; and those who execute the plan do 137 Cf., Archbold, Pleading, Evidence and Practice in Criminal Cases, $zd ed. by Butler and Garcia, p. 1442; Wharton, Criminal Law, 12th ed. by Ruppenthal, II, sec. 1602. 138 See below. 139 Nuremberg Judgment, pp. 54-55. In The Krupp Case (United States v. Krupp, el al.) (1948), U.S. Mil. Trib., Nuremberg, L.R.T.W.C., X, at 117, the court emphasized the necessity for a concrete plan in order to constitute the crime of conspiracy to commit a crime against peace, and therefore refused to convict the accused in relation to the so-called "Krupp conspiracy."

See preceding note. See preceding note. 142 U.N. Sec.-Gen.'s Memo., pp. 52-53. ™Ibid., p. 55. 144 Nuremberg Judgment, p. 55. 110 141

Punishment

of War

Crimes

449

not avoid responsibility by showing that they acted under the direction of the man who conceived it. Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats, and businessmen. When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing. T h a t they were assigned to their tasks by a dictator does not absolve them from responsibility for their acts. T h e relation o£ leader and follower does not preclude responsibility here any more than it does in the comparable tyranny of organized domestic crime.146

Individual responsibility as a member of the conspiracy may, therefore, be said to accrue when a person who has knowledge of its aims 146 contributes materially to the formulation of a definitive plan to wage unlawful war.147 Parties to the conspiracy may include those who participated in its inception and those who adhered later. This was made clear by the definition of conspiracy in the judgment of the Tokyo Tribunal, which stated: A conspiracy to wage aggressive or unlawful war arises when two or more persons enter into an agreement to commit that crime. Thereafter, in furtherance of the conspiracy, follow planning and preparation for such war. Those who participate at this stage may be either original conspirators or later adherents. If the latter adopt the purpose of the conspiracy and plan and prepare for its fulfillment they become conspirators.148

On the crime of conspiracy to commit crimes against peace, the Nuremberg Tribunal convicted "only those defendants who belonged to Hitler's inner circle and who with knowledge of his concrete aggressive plans had intimately collaborated with him." 149 These were Goring, "the planner and prime mover in the military and diplomatic preparation for war which Germany pursued," 150 Hess, Ribbentrop, 146 Ibid., pp. 55-56. A conspiracy to wage aggressive war may have among its parties the rulers of a number of states. T h e Tokyo indictment alleged: " A conspiracy among the accused, joined in by the rulers of other aggressive countries." Trial of Japanese War Criminals, Documents (U.S. Dept. of State Pub. 2613, Far Eastern Series 12, 1946), p. 46. 148 T h e necessity for guilty knowledge was stressed at the trial of the major Japanese war criminals in the acquittal of Matsui on the charge of conspiracy, and the conviction of Sato on that charge. Tokyo Judgment, pp. 1180, 1 1 9 1 . 147 U.N. Sec.-Gen.'s Memo., p. 53. 148 Tokyo Judgment, pp. 32-33; also pp. 1185, 1 1 9 0 - 1 1 9 1 (convictions of Muto and Sato); see also U.N. Sec.-Gen.'s Memo, p. 83. 149 See note 147, above. 150 Nuremberg Judgment, p. 109. Greiser was convicted by the Supreme National Tribunal of Poland as "one of the chief instruments . . . in the gradually unfolding plan for aggressive war on a world scale," and the court referred to "the conspiratory understanding" between him and Hitler. Greiser was formerly president of the Senate of the Free City of Danzig and deputy gauleiter. T h e dispute over this city formed the pretext for the German attack on Poland. T h e court stated: "In the plans of Hitler and his fellow conspirators, Danzig was to be the 'sally port'

Punishment

45°

of

War

Crimes

R o s e n b e r g , Keitel, J o d l , N e u r a t h , a n d R a e d e r . T h e strictness which

the

tribunal

limited

the scope of

the c r i m e of

with

conspiracy

a n d the degree of p a r t i c i p a t i o n w h i c h it r e q u i r e d f o r c o n v i c t i o n is seen b y the f a c t that n o n e of the other d e f e n d a n t s w e r e

convicted

o n this c h a r g e a l t h o u g h all of them w e r e a m o n g the most p r o m i n e n t figures

in H i t l e r ' s regime, m a n y of them R e i c h m i n i s t e r s . 1 5 1

B e f o r e passing o n to the discussion of other crimes against peace (such as p l a n n i n g , p r e p a r a t i o n , initiation, a n d w a g i n g of illegal war), elements of c r i m i n a l i t y in all such crimes m i g h t b e indicated, as stated b y the j u d g m e n t i n The Leeb,

et al.),

High

Command

Case

(United

States v.

w h i c h w a s tried in 1 9 4 7 - 1 9 4 8 b e f o r e a U n i t e d

von

States

m i l i t a r y t r i b u n a l at N u r e m b e r g u n d e r C o n t r o l C o u n c i l L a w N o .

10:

We are of the opinion that as in ordinary criminal cases, so in the crime denominated aggressive war, the same elements must all be present to constitute criminality. There first must be actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war. But mere knowledge is not sufficient to make participation even by high ranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it shall be in a position to shape or influence the policy 15 ® that brings about its initiation or its continuance after initiation, either by furthering, or by hindering or preventing it. If he then does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy. If a defendant did not know that the planning and preparation for invasions and wars in which he was involved were concrete plans and preparations for aggressive wars and for wars otherwise in violation of international laws and treaties, then he cannot be guilty of an offense. If, however, after the policy to initiate and wage aggressive war were formulated, a defendant came into possession of knowledge that the invasions and wars to be waged, were aggressive and unlawful, then

through which the avalanche of Hitler's armed might would roll to conquer the territory of the Polish State and to destroy utterly the Polish element, in order to make it a German 'Lebensraum' for ever." Trial of Greiser (1946), L.R.T.W.C., X I I I , at 104-105; see above, note 126. 151 C/., for example, The Farben Case (United States v. Krauch, et al.) (1948), U.S. Mil. Trib., Nuremberg, TWC, VIII, 1 1 2 5 - 1 1 2 8 , where the court similarly acquitted leading German industrialists who had supported Hitler in rearming Germany and in waging war, on charges of conspiracy to commit crimes against peace, on the ground that they were not makers of policy. u 'Cf., U.N. Sec.-Gen.'s Memo., p. 56. That a person occupies an executive post does not mean that he may not be in a position to influence policy. This is illustrated by Tokyo Judgment, p. 1177, in the case of Koiso: " I t is urged in his defense that in forwarding proposals and plans to Tokyo he did so merely as Chief-of-Staff [of the Kwantung Army] and that such action did not import his personal approval. In view of his knowledge of the aggressive plans of Japan the Tribunal cannot accept this plea. He went beyond the scope of the normal duties of a Chief-of-Staff in advising on political and economic matters to further those plans."

Punishment

of War

Crimes

451

he will be criminally responsible if he, being on the policy level, could have influenced such policy and failed to do so. If and as long as a member of the armed forces does not participate in the preparation, planning, initiating, or waging of aggressive war on a policy level, his war activities do not fall under the definition of crimes against peace. It is not a person's rank or status, but his power to shape or influence the policy of his state, which is the relevant issue for determining his criminality under the charge of crimes against peace. International law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war. But we do not find that, at the present stage of development, international law declares as criminals those below that level who, in the execution of this war policy, act as the instruments of the policy makers. Anybody who is on the policy level and participates in the war policy is liable to punishment. But those under them cannot be punished for the crimes of others. The misdeed of the policy makers is all the greater in as much as they use the great mass of the soldiers and officers to carry out an international crime; however, the individual soldier or officer below the policy level is but the policy makers' instrument, finding himself, as he does, under the rigid discipline which is necessary for and peculiar to military organization."3 T h e court further stated: After war is initiated, and is being waged, the policy question then involved becomes one of extending, continuing or discontinuing the war. The crime at this stage likewise must be committed at the policy making level. . . . l w The acts of commanders and staff officers below the policy level, in planning campaigns, preparing means for carrying them out, moving against a country on orders and fighting a war after it has been instituted, do not constitute the planning, preparation, initiation, and waging of war or the initiation of invasion that international law denounces as criminal.11® In another case where crimes against peace were charged before a United States military tribunal under Control Council L a w No. 10, 168 The High Command Case, above, TWC, XI, 488-489; cf„ Trial of Greiser, above, L.R.T.W.C., XIII, 70, where the accused, convicted of crimes against peace, was apparently on the "policy level" (see at pp. 104-105, 108-110). Although the court at one point described him as "one of the chief instruments" for Hitler's aggressive war (p. 104), it also referred to "the conspiratory understanding between the two men" (p. 105). In Trial of Takashi Sakai (1946), Chinese War Crimes Mil. Trib., Nanking, China, L.R.T.W.C., XIV, 1, the accused, a Japanese army commander, was convicted (inter alia) of crimes against peace. Although the court described him as "one of the leaders who were instrumental in Japan's aggression in China" (p. 5), it is not clear whether the court regarded him as being on the "policy level." If the court purported to convict him solely on the ground that "he had conducted military operations which formed part of a war of aggression" (p. 4), this decision would run counter to the general current of authority in regard to crimes against peace. See Wright, in introduction to L.R.T.W.C., XIV, xi; and below. 154

The High Command Case, above, TWC, XI, 4go. p. 491.

lxIbid.,

Punishment

452 The Ministries court held:

Case (United

of War

States v. von Weizsaecker,

Crimes

et al.), the

Our task is to determine which, if any, of the defendants, knowing there was an intent to so initiate and wage aggressive war, consciously participated in either plans, preparations, initiations of those wars, or so knowing, participated or aided in carrying them on. Obviously, no man may be condemned for fighting in what he believes is the defense of his native land, even though his belief be mistaken. Nor can he be expected to undertake an independent investigation to determine whether or not the cause for which he fights is the result of an aggressive act of his own government. One can be guilty only where knowledge of aggression in fact exists, and it is not sufficient that he have suspicions that the war was aggressive.168

In convincing Weizsäcker, a government official, on the charge of crimes against peace in connection with the German seizure of Bohemia and Moravia, the court applied the foregoing principles as follows: He was not a mere bystander, but acted affirmatively, and himself conducted the diplomatic negotiations both with the victim and the interested powers, doing this with full knowledge of the facts. Silent disapproval is not a defense to an action. While we appreciate the fact that von Weizsaecker did not originate the invasion, and that his part was not a controlling one, we find that it was a real and necessary implementation of the program." 7

Commenting on The Ministries Case, Brigadier General Telford Taylor, has pointed out that, "the Tribunal took pains to confine its judgment on the question of 'crimes against peace' within the traditional limits of criminal law; no defendant was convicted on this ground merely because of his position or because of his pursuit of the normal functions of a diplomat or civil servant." 1 5 8 It may be added that it was in this sense that Article II, 2 (f) of Control Council Law No. 10 was interpreted. T h a t provision had stated with reference to crimes against peace that a person was deemed to have committed such a crime "if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country." Telford Taylor pointed out that this provision was interpreted so as not to render automatically guilty anyone who held high position, but rather as one of the factors to be taken into account together with all other circumstances, "in 158 (i949). TWC, XIV, 337; cf., Tokyo Judgment, p. 1180 (Acquittal of Matsui on charge of waging aggressive war, since it was not proved he had knowledge of the criminal character of the war). "" The Ministries Case, above, TWC, XIV, p. 354. 148 Telford Taylor, Final Report . . . , p. 216. See also, The High Command Case, above, L.R.T.W.C., XII, 66.

Punishment

of War Crimes

453

determining the degree of an individual's participation in 'crimes against peace,' as well as the extent of his guilty knowledge." 159 It has already been stated that even though a war may be unjustifiable, the rules of warfare still apply between the belligerents. 160 It is equally clear that legal acts of warfare do not become illegal because they are performed in furtherance of a criminal war of aggression. 161 As the judgments in The High Command Case and The Ministries Case clearly show, persons engaged in a war of aggression who are below "the policy level" are not personally tainted with the guilt of their superiors. So long as persons below "the policy level" conduct their activities according to the rules of warfare they personally are free from guilt in connection with the war. Only if they commit offenses against humanity, or violations of the laws and customs of war can they be held accountable. 162 T h e judgment of the Tokyo Tribunal is in accord with this viewpoint. There the prosecution attempted to claim that deaths caused by acts of warfare in pursuance of a war of aggression are murder. T h e indictment at Tokyo contained a number of counts of murder, alleging unlawful killings as a result of the aggression of the defendants. 163 In stating the basis for those charges, the prosecution declared, "It is the well-recognized law of every civilized community that one who engages in a criminal act is fully and personally responsible for the natural and probable consequences of that act. . . . T h e taking of human life without legal justification is, and has been recognized from the dawn of history, as murder. . . . In the 169 Telford Taylor, op. cit., p. 229, footnote. C/., U.N. Sec.-Gen.'s Memo., p. 57. In The Farben Case, above, TWC, VIII, 1125-1128, the court acquitted on charges of crimes against peace leading German industrialists, described earlier, on the ground they were not makers of policy. "Their participation was that of followers and not leaders." Ibid., p. 1126. 190 Above, p. 9. 1 and R (June 2, 1952), pp. 5, 6-7. See also the preamble and Arts. 7 and 10 of the convention. Ibid., pp. 9, 12, 13. 6 Convention on the Settlement of Matters Arising Out of the War and the Occupation; Convention on the Rights and Obligations of Foreign Forces and Their Members in the Federal Republic of Germany; Finance Convention. Art. 8 of the Convention on Relations provided that the three related conventions would enter into force simultaneously with the Convention on Relations, i.e., on ratification of all four conventions, plus an added condition (see Art. 1 1 , Convention on Relations). " T h e state of war between the two countries officially ended when ratifications of the peace agreement were exchanged in Tokyo, Dec. 12, 1956. T h e U.S.S.R. had refused to sign the Peace Treaty with Japan, signed at San Francisco, Sept. 8, 1951, by most of the other Allied Powers. The peace agreement of Oct. 19, 1956, consists of a declaration ending the state of war and agreements on fishing rights, commerce, navigation, and sea-rescue arrangements, all signed on that date. It was reported the agreements would result in the immediate repatriation of more than a thousand Japanese prisoners of war and the return of many fishermen seized in Soviet-controlled waters. The agreement was not a final peace treaty because the two governments could not agree on the ownership of certain former Japanese islands, occupied by the U.S.S.R. since the war. New York Times, Dec. 12, 1956, p. 2, col. 4; ibid., Dec. 13, 1956, p. 3, cols. 1 and 2. 7 In some degree, the armistice of Nov. 1 1 , 1918, closing the hostilities in World War I, fulfilled this function. 8 Above, p. 386. 9 See also above, pp. 385-386; Schwarzenberger, I, 372, citing Ahmed Emin Bey v. Great Britain (1927), British-Turkish Mixed Arbitral Tribunal, Recueil des Décisions des Tribunaux Arbitraux Mixtes, VII, at p. 922.

5go

Termination

of War

peace must take, but in practice the treaty is invariably made in written form, 10 as is obviously required by a matter of such importance. It is also clearly desirable that its terms should be expressed as simply and as accurately as possible, to avoid later disputes. 11 Treaties of peace, like other treaties, are concluded by the duly accredited representatives of the states concerned. T h e power to make treaties, including peace treaties, is deemed by international law to lie in the heads of states. However, the relevant provisions of the constitution of each state govern the treaty-making powers of those who exercise such functions on its behalf, and the greater part of legal opinion takes the view that a peace treaty concluded or ratified in excess of the constitutional powers of those entrusted with these functions is not binding on the state concerned. 12 It is, therefore, advisable for a state negotiating a peace treaty to verify the constitutional powers of those acting on behalf of the other side. 18 A head of state who is a prisoner of war would not appear to be competent to make peace. 14 In common with other treaties, peace treaties require ratification. T h e question therefore arises whether the state of war comes to an end with the signing of the peace treaty, or upon its ratification. T h e determining factor is the intention of the parties as deduced from the treaty. Where there is no contrary intention, peace begins when the peace treaty is signed. 15 T h e terms of the treaty may, however, provide Oppenheim, II, 471. Hyde, III, 2401-2402. u Oppenheim, II, 473; Fenwick, Int. Law, pp. 433-437. 12 T h e ability of those acting on behalf of a state which is a party to peace negotiations to bring into effect any terms agreed upon is also a matter to be considered by the negotiators on the other side; see Hyde, III, 2392. " Oppenheim, II, 473. " S e e the award of Lieber, umpire, in Ignazio Torres v. The United States (1868), which arose out of the peace treaty of Guadalupe Hidalgo, Feb. 2, 1848, between the U.S. and Mexico, Moore, International Arbitrations, IV, at pp. 3800-3801; Oppenheim, II, 473-474; Wheaton, II, 1205-1206; also Phillipson, Termination of War and Treaties of Peace, pp. 188-190. Fauchille, II, par. 1706, points out that unless an armistice or preliminaries of peace have already been concluded, hostilities come to an end as soon as the treaty of peace is concluded and signed, without waiting for ratification. Pitt Cobbett, Cases on International Law, II, 5th ed. by Walker, p. 302, states: "When a war is terminated by a Treaty of peace, all acts of hostility are prohibited as from the date of its signature, unless some other time is expressly agreed (The Thetis [1801], 1 Pistoye et Duverdy, 148); and this even though the Treaty itself may be subject to ratification." It may be noted that the Treaty of Peace with Japan, signed at San Francisco, 1951, provided, Art. i, that the state of war between Japan and the Allied Powers would be terminated on the date the treaty came into force. Under Art. 23, the treaty came into force on ratification by Japan and a majority of states named, but only for states which had ratified. 10 u

Termination

of War

591

that active hostilities should cease on a future date, or even on different dates in different theaters of war. 16 It is well understood, however, that peace is not complete until the peace treaty is ratified, and that the ratifying authority has the power to refuse ratification, unless it has debarred itself beforehand from exercising that power. 17 If a peace treaty is not ratified hostilities may be resumed, the unratified treaty having the effect of an armistice. 18 T h e requirement of the observance of the utmost good faith in the nonhostile relations of belligerents demands that the party intending to restart hostilities should give proper warning of his intention, as in resumption after an armistice. 19 T h e content of a treaty of peace will naturally be determined by the nature and circumstances of the war which it concludes, by the bargaining position of the parties at the termination of hostilities, and by commitments into which they have entered during preliminary negotiations. 20 However, the treaty provisions usually deal, among other things, with the date of termination of war, territorial questions, the withdrawal of occupation forces, the revival of prewar treaties between the parties, the resumption of diplomatic relations, indemnities and reparations, the settlement of monetary and property claims of the parties and their nationals arising out of the war, the prosecution of war crimes and other offenses arising out of the war, immunity for acts committed without legal authority during the war, the release and return of prisoners of war. Some peace treaties may be far-reaching and of wide scope, as was the Treaty of Versailles, concluded June 28, 1919, which incorporated the Covenant of the League of Nations; others may deal with the bare essentials required for a return to a state of peace. A peace treaty, however, may not contain terms which are illegal under international law, such as a clause aimed at the destruction of a national group and, therefore, an agreement to commit the crime of genocide. 16 Pitt Cobbett, op. cit., p. 302, states: "Moreover, if, even before the expiry of the period or periods agreed, authentic notice reaches a naval or military commander, it is now commonly agreed, in spite of some previous divergence of opinion, that he ought to abstain from further acts of war. This, however, is subject to the reservation that he is not bound to accept such notice unless it comes directly or indirectly through his own Government." 17 Award in Ignazio Torres v. The U.S., above; see Hackworth, VI, 429 f., for British and U.S. judgments to the effect that, in the absence of contrary provision, peace is not concluded until the peace treaty is finally binding on the belligerents, i.e., when ratifications have been exchanged. 18 Oppenheim, II, 474; Phillipson, op. cit., p. 190. 19 See above, p. 390-391. T o r discussion of the effects of negotiations preceding a peace treaty, see Hyde, III, 2393-2401.

592

Termination

of War

T h e payment of indemnities or reparations is often included in the terms of a peace treaty, especially when the war has ended victoriously for one side. Such payments may bear a relationship to the losses suffered by that side as a result of a conflict which it did not seek, or they may respresent an arbitrary sum imposed as the spoils of victory or as a punishment of the defeated state. T h e modern tendency has been to require payment for loss and damage actually suffered, but to relate the actual amount of such payment to the resources of the defeated state and its capacity to pay. T h e term "reparations" has been used in this connection. 21 Even apart from express provision in the peace treaty for payment of indemnities or reparations, it will be recalled that compensation is payable in a proper case for violation of the rules of warfare. 22 In general, although this last obligation extends beyond the termination of the war, 23 a state may provide in the peace treaty for the extinguishment or restriction of its liability in this connection. 24 However, each of the four Geneva conventions of 1949 says that "no High Contracting Party shall be allowed to absolve itself or any other High Contracting Party" in respect of those breaches of the Conventions which are specified as "grave breaches." 25 T h e meaning of this clause regarding absolvement was stated by those responsible for establishing the conventions, as follows: " T h e State remained responsible for breaches of the Convention and could not refuse to recognize its responsibility on the ground that the individuals concerned had been punished. There remained, for instance, the liability to pay compensation." 26 Further, this provision is intended to render null and void, in advance, any contractual exemption by which a victor State could prevail upon the conquered State to cease to hold the victor responsible for any violations of the Conventions committed by the organs of the latter; any clauses of this kind m i g h t render useless the prosecution of

individual

guilty persons, for where a State has obtained a promise that it shall not be held responsible, it w o u l d be extremely difficult to condemn an individual agent acting 21 See, for example, Part V I I I (Arts. 231-234, and A n n e x I) of the T r e a t y of Versailles, 1919, w h i c h established an inter-Allied commission, called the R e p a r a tion Commission, to determine the a m o u n t of damage for which compensation should be paid b y Germany, as a consequence of W o r l d W a r I; also A r t . 14, T r e a t y of Peace with Japan, 1951. See also chap, viii, above, under "Reparations." 22

A b o v e , pp. 403-405.

O p p e n h e i m , II, 477. Schwarzenberger, I, 375-376, and case there cited, Polyxène Plessa v. (1928), G r e c o - T u r k i s h M i x e d A r b i t r a l T r i b u n a l , Recueil des Décisions des naux Arbitraux Mixtes, V I I I , at p. 227. 23

24

Turkey Tribu-

See A r t . 51, Conv. I; Art. 52, Conv. I I ; Art. 131, Conv. III; Art. 148, Conv. I V . Final Record, I I B , 118, R e p o r t of Special Committee of Joint Committee. See also above, p. 94. 26

28

Termination

of War

593

under its orders. T h i s provision was the only means of ensuring that the compulsory character of the prosecution, as proclaimed in the preceding Article, should continue in force. T h e scope of this Article is comparatively restricted. It does not cover special financial arrangements under which a State can finally liquidate a claim to damages by an agreed l u m p sum payment or a settlement in compensation. 27

A treaty of peace obviously binds only the parties to it, that is, the belligerents concerned. It cannot bind neutrals w h o may have claims against those belligerents arising out of the war. 28 It has been customary in the past for a treaty of peace to provide an express amnesty for all persons who have committed wrongful acts in pursuance of the war against the opposing side. However, even without the insertion of an amnesty clause, one of the effects of the reestablishment of a state of peace and, therefore, of a treaty of peace which contains no stipulation to the contrary, is (subject to limitations which will be discussed) to confer immunity, in relation to the former enemy, upon the belligerents, members of their armed forces, and their nationals generally, for all wrongful acts which they may have committed against the enemy in prosecution of the war. 29 As a consequence of such immunity, charges of war crimes may not be further pursued by the former enemy after the treaty of peace comes into effect, even against persons under arrest. 30 Proceedings pending against war criminals must be discontinued, but those already convicted of such crimes may not, as of right, claim their release. 31 It is provided, however, that protected persons w h o have Final Record, IIB, 133, Report of Joint Committee. See also above, p. 94, n. 97. Hyde, II, 953. 29 See, for example, Oppenheim, II, 476; Wheaton, II, 7th Eng. ed., 623; Fenwick, Int. Law, p. 668; Phillipson, op. cit., p. 244; Hall, International Law, 8th ed. by Higgins, p. 680, which points out that "the effects of the informal establishment of peace are identical with those general effects flowing from the conclusion of a treaty which are necessarily consequent upon the existence of a state of peace." 30 However, in the period between the cessation of hostilities and the reestablishment of peace, whether by treaty or by proclamation, i.e., while the formal state of war continues, international law does not restrict the prosecution of war crimes. In re Yamashita (1946), 327 U.S. 12, 13 (U.S. Supreme Ct.); 40 A.J.I.L. 432; L.R.T.W.C., IV, 42, per Chief Justice Stone. 31 Above, p. 422. Phillipson, op. cit., p. 248, claims that an amnesty clause intended to condone all violations of the law of war should also liberate those war criminals already tried and convicted. T h e Treaty of Peace with Japan, 1951, provided: "Article 11. Japan accepts the judgments of the International Military T r i b u n a l for the Far East and other Allied War Crimes Courts both within and outside Japan, and will carry out the sentences imposed thereby upon Japanese nationals imprisoned in Japan. T h e power to grant clemency, to reduce sentences and to parole with respect to such prisoners may not be exercised except on the decision of the Government or Governments which imposed the sentence in each instance, and on the recommendation of Japan. In the case of persons sentenced by the International Military T r i b u n a l for the Far East, such power may not be 27

28

594

Termination

of War

been accused of offenses or convicted by the courts in occupied territory, shall be handed over at the close of the occupation, with the relevant records to the authorities of the liberated territory.32 The judgment of the International Military Tribunal for the Far East indicates that not all agreements terminating hostilities between states have the effect of an amnesty. Certainly agreements of this nature which do not amount to treaties of peace will not have such an effect. In the Tokyo case, the tribunal found that Japan had been guilty of aggressive war against the U.S.S.R. in the Lake Khassan area bordering on Manchuria, July-August, 1938, and similarly with regard to the hostilities which occurred in the Nomonhan (Outer Mongolia) district, May-September, 1939. 33 However, the defense at the trial contended that, since the fighting was in each case settled by an agreement between the two governments, such matters could not be reopened, that is, the accused could not be charged with aggressive war in connection with those hostilities. According to the court's findings, the Lake Khassan fighting had been concluded by an agreement signed August 10, 1938, while in regard to the Nomonhan fighting the two parties had on June 9, 1940, agreed upon the boundaries between Outer Mongolia and Manchuria. After these two specific agreements, a general settlement was made in the Neutrality Pact between Japan and the U.S.S.R. in April, 1941. The court held: In none of the three agreements on which the Defence argument is based, was any immunity granted nor was the question of liability, criminal or otherwise, dealt with. The Tribunal is therefore of the opinion that these agreements afford no defence to the criminal proceedings being taken before this International Tribunal. In a matter of criminal liability whether domestic or international it would be against the public interest for any tribunal to countenance condonation of crime either expressly or by implication." exercised except on the decision of a majority of the Governments represented on the Tribunal, and on the recommendation of Japan." Treaty of Peace with Japan (U.S. State Dept. Pub. 4561, Far Eastern Series 54, 1952), p. 5. 83 Art. 77, Geneva Conv. IV, 1949; see above, pp. 253, 422-423. " Tokyo Judgment, pp. 834, 840. ™Ibid., pp. 840-841. There can be no doubt, however, that a court would be bound by an amnesty conferred as a result of a peace treaty. Incidentally, municipal law may also provide for a general amnesty which binds courts within its jurisdiction, e.g., Acts of Indemnity, which have the effect of freeing persons to whom they apply from liability for having broken the law, and which are usually passed after wars and civil disturbances to protect officials, including military men, who, during such events, have bona fide in the interest of the country performed illegal acts. Dicey, Law of the Constitution, pp. 47, 229, 547; see Brocklebank Limited v. The King (1925), 1 K.B. 52 (Ct. of Appeal, England), a British case where it was held on appeal that the British Indemnity Act, 1920, passed following World War I, was a bar to a claim regarding an illegal act committed by an official of the Crown in carrying out his wartime duties.

Termination A

of

595

War

qualification to the amnesty effect of a peace treaty has

now

been introduced by the provisions in each of the f o u r G e n e v a conventions of 1 9 4 9 that parties to the treaties shall not be a l l o w e d to absolve either themselves or any other parties to the treaties in respect of

" g r a v e breaches"

of

those conventions. 3 5

The

interpretation

of

those provisions has already been discussed, a n d it w o u l d , therefore, a p p e a r that not only does the conclusion of peace provide n o imm u n i t y for persons guilty of such grave breaches, b u t that the terms of a peace treaty cannot confer i m m u n i t y u p o n such persons. T h i s is the more understandable because all parties to the Conventions, w h e t h e r or not involved in the w a r , have the duty to seek out a n d punish persons guilty of such offenses. 3 6 T h e i m m u n i t y conferred b y the conclusion of peace does not release a belligerent f r o m liability to pay compensation for d a m a g e caused by violations of the laws of war, as has already been noted. 3 7 N e i t h e r does the amnesty, in the absence of express provision to the contrary, tie the hands of a party to the terminated conflict in

prosecuting

former enemy nationals for so-called ordinary offenses committed during the w a r against its m u n i c i p a l law, that is, offenses w h i c h can in no real sense be considered as directed to the prosecution of the w a r and, as such, not of a political character. 3 8 N o r are civil actions, inc l u d i n g those for debt, barred by the amnesty. 3 9 " See above. •"See Art. 49, Conv. I; Art. 50, Conv. II; Art. 129, Conv. I l l ; Art. 146, Conv. IV. See also Br.MM.L., Pt. I l l , par. 641, n. 1. " Above. 1,8 See L.R.T.W.C., XV, 25; Schwarzenberger, International Law and Totalitarian Lawlessness, p. 61; Phillipson, op. cit., p. 247; Wheaton, II, 7th Eng. ed., 623, where as examples of ordinary crimes are given the murder of a warder or fellow prisoner by a prisoner of war. The distinction between political and ordinary offenses has been appositely stated in a French decision "based . . . on national and international practice" in the law of extradition. "In brief, what distinguishes the political crime from the common crime is the fact that the former only affects the political organization of the state, the proper rights of the state, while the latter exclusively affects rights other than those of the state. The fact that the reasons of sentiment which prompted the offender to commit the offense belong to the realm of politics does not in itself create a political offense. The offense does not derive its political character from the motive of the offender but from the nature of the rights it injures." In re Giovanni Gatti (1947), Ct. of Appeal of Grenoble (Chambre des Mises en Accusation), Ann. Dig., 1947, Case No. 70; see also, Denmark (Collaboration with the Enemy) Case (1947), Supreme Ct., Brazil, Ann. Dig., 1947, Case No. 71; In re Barratini (1936), Ct. of Appeal, Liège, Belgium, Ann. Dig., 1938-1940, Case No. »59, a case on extradition, where the court stated: " A political offense is one which, in essence, is directed against the political régime or which, though normally constituting an ordinary crime ('crime de droit commun"), assumes the character of a political crime because the aim of the author of the crime was to injure the political régime." *" Oppenheim, II, 477; Fenwick, Int. Law, p. 668.

596

Termination

of War

Further, the amnesty does not operate to protect nationals against punishment for war crimes by their own government, but only against proceedings by the former enemy. In the same way, unless express protection has been conferred by the terms of the peace treaty, a belligerent may punish those of its nationals or subjects w h o have offended against its municipal law by adhering to the cause of the enemy, as for example, traitors and deserters. 40 T h e terms of a peace treaty may expressly exclude or restrict the amnesty which, under customary international law, the conclusion of peace would otherwise bring about. In such a case, the prosecution of former enemy nationals for war crimes could continue after the conclusion of peace, so far as the terms of the treaty allowed. A m o n g recent examples of peace treaties which contained such stipulations are the Treaty of Versailles, 1919, which provided for the trial, among others, of the former German emperor; 4 1 and the peace treaties signed at Paris on February 10, 1947, concluding W o r l d W a r II between the Allied and Associated Powers and Italy, Rumania, Bulgaria, Hungary, and Finland. 4 2 T h e conclusion of peace obviously terminates the military occupation of enemy territory, and occupation forces are then ordinarily withdrawn from such territory where it remains under the sovereignty of its former owner. However, the peace treaty may provide for the continued occupation of all or part of the territory for a period as a guarantee for the fulfillment of the terms of the peace treaty. T e r m s

Oppenheira, II, 476; Fauchille, II, par. 1700. See Part VII, Penalties, of the Treaty of Versailles, 1919. Art. 227 of the treaty arraigned the ex-Kaiser "for a supreme offense against international morality and the sanctity of treaties." 42 Treaties of Peace with Italy, Roumania, Bulgaria, Hungary, and Finland, Pari. Pubs., 1946-1947, Vol. X X I V (Accounts and papers, vol. 10), Cmd. 7022, Misc. No. 1 (1947), pp. 18, 80, 106, 119, 140; L.R.T.W.C., IV, 77; X V , 26; History of the U.N. War Crimes Commission, p. 211. As an example, Art. 45 of the peace treaty with Italy, stated: "1. Italy shall take all necessary steps to ensure the apprehension and surrender for trial of: (a) Persons accused of having committed, ordered or abetted war crimes and crimes against peace and humanity; (b) Nationals of any Allied or Associated Power accused of having violated their national law by treason or collaboration with the enemy during the war. 2. A t the request of the United Nations Government concerned, Italy shall likewise make available as witnesses persons within its jurisdiction, whose evidence is required for the trial of the persons referred to in paragraph 1 of this Article. 3. Any disagreement concerning the application of the provisions of paragraphs 1 and 2 of this Article shall b e referred by any of the Governments concerned to the Ambassadors in R o m e of the Soviet Union, of the U.K., of the U.S.A., and of France, who will reach agreement with regard to the difficulty." Similar provisions were contained i n the other peace treaties. 40 41

Termination

of War

597

of this nature were included in the T r e a t y of Versailles, w h i c h provided, as a guarantee for the execution of the treaty by G e r m a n y , that G e r m a n territory west of the R h i n e , together w i t h the bridgeheads, should be occupied by A l l i e d and Associated troops for fifteen years f r o m the c o m i n g into force of the treaty. 43 T h e treaty also provided (Article 430) for the reoccupation of the territory even after the fifteen years if G e r m a n y refused to carry o u t the w h o l e or part of her obligations u n d e r the treaty w i t h regard to peace. W h i l e a treaty of peace may provide for guarantees to ensure the f a i t h f u l performance of its terms, even in the absence of such guarantees the rule of performance in good faith applies to peace treaties as it does to treaties in general. T h e rule that a peace treaty must be performed in good faith is applicable even t h o u g h it is recognized that the parties are rarely in an equal b a r g a i n i n g position. 4 4 A war w h i c h has ended in a virtual stalemate may leave the parties free to negotiate on equal terms, b u t where the conflict has ended in a decisive victory for one side the terms of peace imposed o n the defeated side may be regarded as the price p a i d by the latter for the reestablishment of peace. Such a conclusion is c o m p a t i b l e w i t h the f u n d a m e n t a l nature of war, w h i c h is the use of force to compel the settlement of outstanding differences between states. 46 From the standpoint of international law, therefore, there w o u l d appear to be no difference between the b i n d i n g effect of a treaty of peace arrived at as a result of negotiation a n d one imposed u p o n a defeated state w h i c h merely h a d the option to accept or refuse the terms presented to it. 4 6 W h e t h e r an imposed treaty of a harsh nature is wise is, of course, not a legal b u t a political question affecting the f u t u r e relations of the states on either side, since a state w h i c h feels that the terms of the treaty are unjust may well endeavor to seek a revision as soon as it is able. It may be noted that ambiguities i n a 13 Art. 428, T r e a t y of Versailles, 1919. See generally, Part X I V , Guarantees, of the treaty.

" See Fenwick, Int. Law, p. 440, and the authorities there cited, including Grotius, Vattel, W . E. Hall, and T . J. Lawrence; also Schwarzenberger, I, 373-376, section "Peace Treaties and the Principle of Reciprocity," w h i c h cites the O p i n i o n on the Lusitania cases (1923), of the M i x e d Claims Commission between Germany and the U n i t e d States, 18 A.J.I.L. at p. 373 (Any intention to impose vindictive or punitive provisions in a peace treaty must be clearly expressed and must not be inferred), and Polyxene Plessa v. Turkey, above, Recueil.. . . , V I I I , 224, where it was held improbable, considering the particular circumstances, that the peace treaty (Treaty of Lausanne, 1923) required the victorious state to compensate the defeated state or its nationals for legal acts of warfare such as requisition. 46

A b o v e , p. 16.

46

See note 44, above.

598

Termination

of War

peace treaty are construed against the party which was responsible for its terms and in favor of the other party. 47 However, a legal question is whether a treaty of peace imposed by an aggressor on the victim of an illegal war is binding on the latter. T o take the view that such a treaty is binding would, in effect, be to force the victim of an illegal war to condone its illegality, and to confirm to the aggressor the fruits of his aggression when he was successful in that enterprise. It is indeed difficult to conceive that international law supports such a viewpoint. In the absence of direct precedents on the effect of such a peace treaty, some guidance on this question is furnished by the manner in which the nations of the world have in the past two decades regarded gains won by aggression. For the evaluation of such guidance, it should be remarked that, normally, while only contracting states are b o u n d by a treaty of peace, third states should respect its provisions. 48 A t the time of the occupation of South Manchuria by Japan, U n i t e d States Secretary of State Stimson in a communication dated January 8, 1932, to the Chinese and Japanese governments warned that the United States government "does not intend to recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of A u g u s t 27, 1928, to which treaty both C h i n a and Japan, as well as the U n i t e d States, are parties." 49 T h i s statement of principle became k n o w n as the Stimson Doctrine. O n March 11, 1932, the Assembly of the League of Nations followed the lead of the United States by declaring "that it is incumbent upon the members of the League of Nations not to recognize any situation, treaty, or agreement which may be brought about by means contrary to the Covenant of the League of Nations or the Pact of Paris." 50 T h e American republics took a similar stand in 1932 on the war between Bolivia and Paraguay, and at conferences in 1933, 1936, and ig38. B1 Article 2 of the Saavedra Lamas treaty, 1933, is to the same effect. 52 Neither the annexation of Ethiopia by See Schwarzenberger, X, 376, and cases there cited. " Fauchille, II, par. 1707. 4" Keith, Speeches and Documents on International Affairs 1918-1937, I, 256. 60 Assembly resolution. League of Nations, Official Journal, Special Supplement, no. 101 (193a), p. 87; Fenwick, Int. Law, p. 360. T h e United States was, of course, not a member of the League of Nations. 61 At Montevideo, Buenos Aires, and Lima, respectively; see Fenwick, Int. Law, pp. 360-361. 6a "They [the contracting states] declare . . . that they will not recognize any territorial arrangement which is not obtained by pacific means, nor the validity of the occupation or acquisition of territories that may be brought about by force of arms." 47

Termination

of War

599

Italy in 1936, nor that of Austria by Germany in 1938, cases of blatant aggression, received the recognition of the community of nations. In 1940, the Meeting of Foreign Ministers of the American Republics at Habana declared "force can not constitute the basis of rights, and they condemn all violence whether under the form of conquest, of stipulations which may have been imposed by the belligerents in the clauses of treaty, or by any other process." 63 It would, therefore, appear by analogy with the commonly expressed opinion and attitude of the community of nations that a state which is the victim of aggression should be entitled to denounce a peace treaty imposed upon it by force, as soon as it is in a position to exercise a free choice. In this sense, a parallel may be drawn between these circumstances and the position under Anglo-American law of a person induced to enter into a contract by duress. He is entitled to denounce the contract as soon as he is free from the duress, or affirm it then, at his option. In other words, the contract is voidable. A distinction must be drawn between acts whose validity is affected by the illegality of the war, and acts committed in the conduct of an illegal war. As has been pointed out previously, even an illegal war is governed by the rules of warfare. 54 Actions performed by an aggressor in accordance with the rules of warfare will, therefore, retain their validity after the termination of the war and must be recognized as legal even if the aggressor is defeated.®5 In this way, dispositions of property made by the aggressor in accordance with the laws of war will still retain their validity on his defeat. It would be logical to assume that the owners of property who have suffered loss as a result of such dispositions, although unable to disturb the dispositions would be entitled to include those losses in the reparations claimed against the aggressor state in the peace settlement. Breach of a treaty of peace by one of the parties gives the other party the right to abrogate the treaty; that is, the treaty is voidable. T h e same rule governs treaties in general, and, according to most writers on international law, it is for the injured party to judge whether the breach of the treaty is sufficiently grave to justify the cancellation of the treaty. The view that breaches of essential and nonessential stipulations equally give rise to a right to abrogate the treaty, is, however, controversial.56 If the peace treaty is violated through nonperformance 63 64 65 M

Fen wick, Int. Law, p. 361. See above, pp. 9, 452-454. See also below, pp. 605-607. See Oppenheim, I, 853-854; II, 480; Fenwick, Int. Law, p. 452.

600

Termination

of

War

of its conditions within a stipulated period, the injured party may resume hostilities, which are considered a continuation of the same war. Hostilities resulting from a breach of the treaty after the stipulated period would be considered a new war. 5 7 Cancellation of a peace treaty because of breach of its provisions must be exercised within a reasonable time of the breach, otherwise the treaty continues in effect. 58 Further, before denouncing a peace treaty for nonperformance or delay in execution, the complaining state should, unless otherwise empowered by the treaty, first insist upon its execution and only proceed to cancel it after refusal or continued nonperformance. 5 9 International law also recognizes a right of reprisals by the injured state to compel the delinquent state to the faithful performance of the peace treaty. Reprisals of this nature consist in acts, otherwise illegal, such as the seizure of property of the offending state or occupation of part of its territory, as a pledge for the fulfillment of the treaty. 60 Acts of warfare committed by the forces of a belligerent in ignorance that a peace has been concluded must be repaired by restoring as far as possible the status quo existing at the time of conclusion of peace. A n y territory taken in such circumstances must, therefore, be returned, prisoners of war released, and contributions levied in occupied territory repaid. Compensation must be paid for damage suffered. N o criminal responsibility is incurred by persons committing acts of war under such circumstances. 61

SUBJUGATION T h e subjugation of the enemy state puts an end to the war. In that event, the enemy's utter defeat (which is known as debellatio) and the disintegration of its government is followed by the annexation of its Oppenheim, II, 480. Loc. cit. s9 Fauchille, II, par. 1708 (1). 80 Ibid.., par. 1709. Rolin, I, par. 105, describes reprisals in this sense as comprising all the acts contrary to law by which a state replies, without declaring war, to a violation of law of which it is the victim on the part of another state, or which has been committed against one of its population. Such reprisals must be distinguished from reprisals in war, of which the purpose is to compel adherence by the enemy to the laws of war. 81 Oppenheim, II, 475; Hyde, III, 2415-2416; The Mentor (1799), 1 C. Rob. 179 (High Ct. of Admiralty, England); Scott, Cases pp. 1097-1098; The John, BritishAmerican Claims Commission of 1853. Report of Commission (1856) 427; Scott, Cases, pp. 1102-1107; Pitt Cobbett, op. cit., II, 298-302 (with a note on The Mentor). 67

58

Termination

of War

601

territory and its extinction as independent state. In other words, the defeated state is swallowed u p by the victorious state, and the former ceases to exist as an international personality. 62 Subjugation must be distinguished from mere occupation. 6 3 Occupation of hostile territory during war gives the occupant de facto, that is, actual, authority over the territory, but does not transfer to him the legal sovereignty of the territory. T h e legal, or de jure, title to the occupied area remains where it was vested before the territory was occupied. O n the other hand, subjugation embraces not merely the occupation of the territory of a state, but its actual annexation, so that the legal title to the territory passes to the conqueror. However, it should be borne in mind that subjugation means utter, irretrievable defeat, and the doctrine of subjugation could not be considered to apply "so long as there was an army in the field attempting to restore the occupied countries to their true owners." 6 4 A continuance of the warfare by the allied forces of the occupied state, or by its own forces outside its territory, would, therefore, prevent the application of the doctrine of subjugation. T h e Nuremberg Judgment also referred to the question "whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive w a r . " 6 5 In the circumstances of the case before it, the tribunal did not consider it necessary to decide that question. However, in view of the considerations discussed in relation to a treaty of peace imposed as a result of illegal war, it would equally appear that subjugation resulting from illegal war could not convey a valid title to the aggressor in regard to territory obtained in this manner. 6 6 It will also be remembered that Article 2 (4) of the U n i t e d Nations Charter requires that "all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Nevertheless, however faulty the title acquired by the aggressor state to the territory it had absorbed, such annexation would appear to terminate the war, if no effective opposition remained in the field or was put in motion to contest the annexation. T h u s , although the 82 Subjugation, in itself, is not genocide, since, although a nation may lose its political independence, it does not necessarily lose its national identity. "'See above, pp. 215-218. 04 Nuremberg Judgment, p. 83; above, p. 215. See also Oppenheim, II, 467; Hyde, III, 2390; Br.M.M.L., Pt. I l l , par. 512, n. 1. 65 Nuremberg Judgment, p. 83. 66 See also Schwarzenberger, Manual of International Law, pp. 50-51.

602

Termination

of War

nations in general refused to recognize the annexation of Ethiopia in 1936 because of Italy's aggression,67 that annexation appears to have terminated the war, 1935-1936, between the two states, since the Ethiopian resistance had been destroyed and the League of Nations offered no effective opposition to the annexation, even withdrawing economic sanctions against Italy. 68 Subjugation derives purely from the act of conquest 69 and is, therefore, a unilateral action on the part of the victorious power, requiring no element of consent by the defeated belligerent, which, indeed, passes out of existence. As such, subjugation must be distinguished from cession, where the personality of the defeated state survives the debacle and territory is yielded up by its own act in agreement with the conqueror, even though the cession represents an agreement executed under duress. Cession, therefore, ends the war by other means than subjugation. Once a state has been subjugated, further resistance on the part of the inhabitants of the subjugated state becomes unlawful, even if animated by patriotic motives, and members of the subjugated population who commit acts of warfare are liable to punishment as criminals. This is in accordance with the general principle that termination of war puts an end to the lawful character of acts of warfare. 70 However, if the persons who keep on resisting are large in number, they may constitute a de facto government, as well as a continuing force in the field. In that case, the state could not be considered subjugated, and the members of such forces still resisting would possess the status of lawful combatants. Among the tests applicable for determining whether or not the government of the vanquished state had disintegrated, and, therefore, whether further resistance was lawful, are the number in the resisting armed forces, their cohesion as combatant forces, and the responsibility and authority of the officials 07 Art. 10, League of Nations Covenant, stated: " T h e Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled." Ethiopia was a member of the League. 68 Fenwick does, however, raise a query as to whether the war was actually terminated, or whether the annexation did not in fact amount to temporary military occupation in view of the Ethiopian emperor's resistance, the nonrecognition of many states, and the subsequent restoration of Ethiopian independence. Fenwick, Int. Law, p. 661, note. 69 Conquest, in itself, does not amount to subjugation, although the latter results from conquest. T o conquer the enemy is to overpower him and occupy his territory, but annexation may not follow. See Oppenheim, 466-467. ro Above, p. 587.

Termination

of War

603

composing the purported government. It has been pointed out with some truth that political and military reasons, rather than legal considerations, may decide the status of such forces in a doubtful case.71 SIMPLE CESSATION OF HOSTILITIES War may end simply by both sides ceasing hostilities in tacit acquiescence to the termination of the war, and without any formal or specific arrangement between them for that purpose. Naturally, this manner of ending war leaves all matters relating to the termination to be settled by implication of law. From the legal standpoint, therefore, this is not a satisfactory method for terminating a war, since many matters which normally would be settled by a treaty of peace are left unsettled and in doubt, while third states are uncertain whether they still have the status of neutrals. Among the matters left in doubt is the date when the war is deemed to have terminated. In these circumstances, a party to the conflict may signify the end of the war, so far as it is concerned, by a unilateral declaration to that effect issued or enacted under its own municipal law. This declaration would, of course, not bind the other parties to the conflict. 72 An instance of such a declaration is the statement whereby the Soviet government terminated, in relation to Russia, World War I. 73 In some cases, such declarations have been followed at a later date by formal " S e e Nurick and Barrett, "Legality of Guerrilla Forces under the Laws of War," 40 A.J.I.L. 58a. 72 See Arnold, et al. v. Ellison, et al., Appellants (1928), 96 Pa. Super. Ct. 118, 124 (Superior Ct. of Pennsylvania); Hackworth, VI, 434. " O n Feb. 10 (Jan. 28 in the old Russian calendar) 1918, at the first peace conference at Brest-Litovsk, as follows: "We cannot sanction violence. We are stopping hostilities, but we are forced to desist from signing a (formal) Peace Treaty." On the same day, the following signed declaration was transmitted by the Soviet government to the combined Allied delegations: "In the name of the Council of People's Commissaries, the Government of the Russian Federated Republic informs the governments and peoples at war with us, as well as allied and neutral nations, that while refusing to sign a rapacious treaty, Russia, for her part, declares the present war with Germany, Austria-Hungary, Turkey and Bulgaria at an end. Simultaneously orders are being issued for demobilization of the Russian armies." Taracouzio, The Soviet Union and International Law, p. 340. Other instances of declarations terminating war are the Joint Resolution of the U.S. Congress, July 2, 1921, ending the war with Germany and Austro-Hungary. 42 Stat. 105-107; Hackworth, VI, 430-431; the Joint Resolution of the U.S. Congress, Oct. 19, 1951, approved by the president, ending the war with Germany as of that date (65 Stat. 451), and proclaimed by the president, Oct. 24, 1951. Proc. 2950, 16 Fed. Reg. 10915; 46 A.J.I.L. 12; the decree, Sept. 15, 1919, by the president of the Chinese Republic reestablishing peace with Germany after World War I. See British and Foreign State Papers, CXVIII, 105, 106; League of Nations Treaty Series, IX, 283, 284.

604

Termination

of

War

treaties of peace. 74 Where no date for the termination of a war is fixed, the date would be inferred from facts denoting the resumption of peaceful relations between the two states. When a war is terminated merely by cessation of hostilities, without a treaty of peace, most legal opinion takes the view that the parties in effect indicate by this that they are prepared to let matters between them stand as they exist at the time they desist from hostile operations. 75 In the place of a peace treaty, therefore, the future relationship between the parties is governed in general by the position which exists at the time of cessation of hostilities. In other words, what is known as the rule of uti possidetis76 applies between them, which means that each party retains such real and personal property of the other party as he already holds, and the other party is deemed to have abandoned such property. Each side may, therefore, annex enemy territory which remained under his occupation at the time hostilities ceased. Outstanding questions between the parties which cannot be solved under this rule must remain unsettled until solved by other means. However, in the same way that doubt was expressed earlier concerning the title of an aggressor state to gains obtained in a peace treaty imposed upon the victim state, 77 so it is to be doubted that the aggressor state could obtain undisputed title to its gains as the mere result of a war terminated without a treaty of peace. T h e rule of uti possidetis must, therefore, be deemed to be qualified to this extent and the victim is entitled to claim restitution or reparation from the aggressor for such unlawful gains. 78 G E N E R A L E F F E C T S OF T E R M I N A T I O N OF W A R i) T h e following pages will discuss some effects which are common to every termination of war. T h e chief effect is, of course, to restore 74 E.g., the Treaty of Rapallo, April 16, 1922, between the U.S.S.R. and Germany (the Peace Treaty of Brest-Litovsk, March 3, 1918, between the same parties was denounced by Russia on Nov. 13, 1918); the Treaty of Berlin, Aug. 25, 1921, between the U.S. and Germany; treaty of Aug. 24, 1921, between the United States and Austria; treaty of Aug. 29, 1921, between the United States and Hungary. These treaties of the United States contained reference to the U.S. Congress Joint Resolution of July 2, 1921, terminating the war, and the U.S. president's proclamation of the treaty with Germany referred to July 2, 1921, as the date of termination. Hyde, III, 2388. See also the peace agreements between Germany and China, May 20, 1921. 76 See Oppenheim, II, 465-466; Fenwick, Int. Law, pp. 661-662; Hyde, III, 2416; for the rule of uti possidetis, see also below, under "General Effects of Termination of War." 78 Ibid. " A b o v e , pp. 598-599; see also Hyde, III, 2417. 78 Ibid.

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peace between the former belligerents. As a result, the relations between the parties cease to be governed by the law of war, and acts justified only by the existence of a state of war cease to be lawful. Reference has already been made to this. 79 Of other effects to be considered, some are implied in the absence of express provision to the contrary, others allow of no derogation. ii) A t the termination of war, and also during war, where territory, persons, and movable property captured by the enemy are returned, the original sovereign is deemed by international law to recover his former rights over the returned territory, persons, and property. T h i s is known as the doctrine of postliminium, a term derived from the jus postliminii of R o m a n law. 80 As applied to occupied territory which is returned to its legitimate sovereign, 81 this doctrine means that the latter automatically reassumes full authority and responsibility for the recovered territory. It has been pointed out earlier that occupation does not deprive the displaced sovereign of his legal right to the territory, which remains vested in him throughout the occupation, 8 2 although during that period the actual authority is exercised by the occupant. U p o n return of the territory to the legitimate sovereign the state of affairs before occupation revives. T h e legitimate sovereign not only reacquires his former rights to property over which the occupant exercised temporary authority, but also to recovered public property, such as movable property susceptible of military use, 83 to which the occupant had acquired legal title under the laws of belligerent occupation. 84 However, it would appear that the laws passed during the occupation either by the occupying power or by " p u p p e t " governments set up by him continue in effect in the territory after the occupation ceases until repealed by the legitimate sovereign, provided such laws do not exceed

Above, p. 587. Postliminium under R o m a n law has been described as "the recovery of rights by a person returned from captivity, or the recovery of rights over a person or thing recovered from hostile possession." Poste, Gai Institutiones Juris Civilis (Institutes of Roman Law by Gaius), 4th ed. by Whittuck, p. 80. 81 Postliminium does not apply where the occupied territory is reoccupied, not by the original sovereign, but by a third state such as an ally of that sovereign. T h e occupied territory would then remain under the rulership of the state actually occupying it, until the territory is handed back to the original sovereign. See Feilchenfeld, The International Economic Law of Belligerent Occupation, pp. 7, 14583 Above, p. 217. 83 Above, pp. 290-291. 84 See Hyde, III, 2419-2420. 79

80

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the legislative powers conferred on an occupant by the laws of war, and, in addition, are for the benefit of the population of the territory.85 Puppet governments set up by the occupant in the occupied territory are regarded as no more than "organs" of the occupant, and, therefore, possessing only the same restricted legislative powers as the occupant himself. 88 The revival of the former state of affairs in the territory does not affect the validity of acts performed by the occupant according to the laws of war during the period of his occupation. 87 Accordingly, dispositions of property in the territory by the occupant which are consonant with the laws of belligerent occupation still retain their validity under the renewed rule of the legitimate sovereign and must be recog86 See In re G. (1945), Criminal Ct. of Heraklion (Crete), Greece, Ann. Dig., 19431945, Case No. 151; In re Law 900 of 1943 (1944), Areopagus (Ct. of Cassation), Greece, Ann. Dig., 1943-1945, Case No. 152, and notes to these cases. " See preceding note. 87 See, for example. United States v. Rice (1819), 4 Wheat. 246 (U.S. Supreme Ct.); Scott, Cases, pp. 707-708, per Story J., at p. 708: " T h e doctrines respecting the jus postliminii are wholly inapplicable to [such] case"; German Military Courts in Greece Case (1945), Ct. of Appeal of Athens, Greece, Ann. Dig., 1943-1945, Case No. 149 (Greek post-occupation courts had no jurisdiction to try offenses already tried by the German military courts during the occupation, whose decisions are regarded by the Greek courts as res judicatae). However, in Re A. (1945), Crim. Ct. of Heraklion (Crete), Ann. Dig., 1943-194Case No. 162, the court held that an amnesty for ordinary offenses against the preexisting law of the occupied territory, granted by the occupant to ensure the security of his forces, i.e., to prevent the formation of partisan groups by convicted persons who had escaped from justice, was valid during the occupation, but was extinguished simultaneously with it. After the end of the occupation, therefore, a person who had benefited from the amnesty could be compelled to serve the remainder of his sentence. In Ellin Anak Masing v. The King (1948), Sarawak Supreme Ct., Ann. Dig., 1948, Case No. 193, an appeal against a death sentence was pending at the time the Japanese occupation took place. In the absence of civil courts, a Japanese police officer imposed a sentence of 10 years imprisonment. Held: not a competent court and sentence not in accordance with Sarawak law. In The King v. Maung Hmin, et al. (1946), High Ct. of Judicature, Burma, Ann. Dig., 1946, Case No. 139, and Abdul Aziz v. The Sooratee Bara Bazaar Co. Ltd. (1946), High Ct. (Appellate Civil), Burma, Ann. Dig., 1946, Case No. 140, the postoccupation validity of decisions rendered during the occupation by courts legitimately constituted and administered by the occupant was upheld. Similarly, U San Wa v. U Ba Thin (1947), High Ct. (App. Civil), Burma, Ann. Dig., 1947, Case No. 106 (Legality of Supreme Court of Burma established by Japan during its occupation, and of the decrees and orders of that court); Chan Kam Chuen v. Leung Ho Wai Chun (1947), Hong Kong Supreme Ct., Ann. Dig., 1947, Case No. n g (Grant of letters of administration by Japanese occupation court held valid in spite of slight variations from the procedure adopted by Hong Kong courts in normal times). L. v. N. (Olive Oil Case) (1948), Aegean Ct. of Appeal, Greece, Ann. Dig., 1948, Case No. 186 (Emergency decree of Italian occupant on Samos modifying existing legislation valid, and private rights acquired under it must be respected by legal sovereign after the occupation). See also Hyde, III, 1885; and above, p. 599,

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nized by him. 88 O n the other hand, the authority of the occupant does not extend beyond the period of the occupation, and any such extension he may have attempted is invalid. Therefore, uncollected contributions imposed by the occupant may no longer be demanded, 89 contracts and leases regarding public lands in the occupied territory are not valid beyond the period of the occupation, 90 and officials he has appointed may be dismissed without compensation when the occupation has terminated, even though their appointments were for a longer term. 91 Debts incurred by the occupant do not bind the legitimate government. 92 It may also be observed that the validity of acts of the occupant according to international law does not necessarily protect a national of the occupied territory from prosecution under national law after the termination of the occupation for assisting the occupant in regard to those actions. 93 Acts of the occupant during the occupation which are not consonant with the laws of war may be impugned when the legitimate sovereign takes over authority in the territory, 94 and property unlawfully disposed of by the occupant may be recovered from the persons who have received or purchased it, without paying them compensation.®5 Apart from those matters regarding persons, territory, and property returned from hostile jurisdiction which are governed by international law, the status of the returned individuals and private rights in the territory and property recovered are regulated by municipal law. T h e provisions of municipal law in this regard may be referred to as postliminium under municipal law, and will, of course, vary accord88 E.g., Chop Sun Cheong Loong, et al. v. Lian Teck Trading Co. (1947). Malayan Union, Supreme Ct., Ann. Dig., 1948, Case No. 192 (Japanese Custodian of Enemy Property lawfully rented property of absent owner, creating a monthly tenancy which continued after the occupation). 89 Fauchille, II, par. 1698. " A n example of an invalid contract of this nature, which arose out of the Franco-Prussian War, 1870, is given in Oppenheim, II, 483 n. See also above, p. 288. m See, for example, Anastasio v. Ministero Dell'Industria E Del Commercio (1946), Council of State, Italy, Ann. Dig., 1946, Case No. 150. 82 See above, p. 229. "In re Policeman Vollema (1947), Special Ct. of Cassation, Holland, Ann. Dig., 1947, Case No. 116; In re van Kampen (1947), same court, ibid., Case No. 117. " S e e , for example, In re S. (1944), Areopagus (Ct. of Cassation), Greece, Ann. Dig., 1943-1945, Case No. 150; Hongkong and Shanghai Banking Corp. v. Luis Perez-Samanillo, Inc. and Register of Deeds of Manila (1946), Ct. of First Instance, Manila, Philippines, Ann. Dig., 1946, Case No. 157 (Wrongful cancellation of mortgage by occupant). See also above, p. 244, n. 112. "•See, for example, Delville v. Servais (1945), Ct. of Appeal of Liège, Belgium, Ann. Dig., 1943-1945, Case No. 157; Secret v. Loizel (1945), Tribunal Civil of Péronne, France, Ann. Dig., 1943-194;, Case No. 164. See also above, p. 300, n. 106.

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ing to the legislation of each individual state. O n the other hand, the effects of postliminium under international law are common to all states. A n example of the operation in their respective spheres of the rules of international and municipal law in regard to postliminium is as follows. Geneva Convention IV, 1949, provides by Article 77: "Protected persons who have been accused of offenses or convicted by the courts in occupied territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory." Once those persons have been handed over, their legal position, that is, whether their trials will be proceeded with or their sentences enforced, will then be determined by the municipal legislation of the restored sovereign. T h e doctrine of postliminium does not apply where the actual legal title to the conquered territory (not merely the de facto authority) passes from the original sovereign, as by cession or annexation, and afterward is recovered by him. In that event, the interposition of a period of legal sovereignty by the conqueror bars the application of the doctrine, and the condition of things before the sovereignty to the territory was lost does not automatically revive when it is recovered. Postliminium does not apply, therefore, after an interregnum. 9 6 iii) In dealing with termination of war by simple cessation of hostilities, it was noted that the postwar relationship between the parties is governed by the application of the rule uti possidetis,97 T h i s means, in effect, that the dividing line between the former belligerents is drawn as it existed at the conclusion of hostilities. Each party retains the property of the other, whether territory or movable belongings, which is in its possession at that time, and obtains legal title to such property. T h e same principle of uti possidetis applies to all terminations of war, however ended, where no provision to the contrary is made between the parties. Therefore, if the war is concluded by a treaty of peace which fails to determine the disposition of captured territory and other property, the party in possession of the property becomes its legal owner, which means in the case of territory that he assumes sovereignty over it. 98 It is obvious, however, that treaties of peace will usually make detailed provision for such matters. iv) T h e provisions in Geneva Convention III, 1949, relating to the Oppenheim, II, 483-484. " Above. "See, for example, Oppenheim, II, 475-476: Fenwick, Int. 96

Law,

p. 665.

Termination

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release and repatriation of prisoners of war at the close of hostilities have been referred to e a r l i e r . " Article 118 states in part: Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph. In either case, the measures adopted shall be brought to the knowledge of prisoners of war.

Article 119, states: By agreement between the Parties to the conflict, commissions shall be established for the purpose of searching for dispersed prisoners of war and of assuring their repatriation with the least possible delay.

Other provisions of Articles 118 and 119 relate to the apportionment of the costs of the repatriation, the conditions under which the repatriation shall be effected, the disposition of articles of value, currency, and effects of the prisoners undergoing repatriation, and the status of prisoners against whom criminal proceedings are pending or who have already been convicted. T h e r e can be no doubt that the principle of speedy release and repatriation of prisoners of war when hostilities have ceased is an established principle of international law, irrespective of the treaty obligations of particular states. In this connection it may be useful to recall that Article 20 of the Hague Regulations, 1907, stated: " A f t e r the conclusion of peace, the repatriation of prisoners of war shall be carried out as quickly as possible." W h i l e Article 75 of the Geneva (Prisoners of War) Convention, 1929, stated: W h e n belligerents conclude an armistice convention, they shall normally cause to be included therein provisions concerning the repatriation of prisoners of war. If it has not been possible to insert in that Convention such stipulations, the belligerents shall, nevertheless, enter into communication with each other on the question as soon as possible. In any case, the repatriation of prisoners shall be effected as soon as possible after the conclusion of peace. Prisoners of war w h o are subject to criminal proceedings for a crime or offence at common law may, however, be detained until the end of the proceedings, and, if need be, until the expiration of the sentence. T h e same applies to prisoners convicted for a crime or offence at common law. B y agreement between the belligerents, commissions may be instituted for the purpose of searching for scattered prisoners and ensuring their repatriation. " A b o v e , pp. 145-147.

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T h e 1949 convention, of course, replaces the 1929 convention in the relations of states which have adhered to the former, 100 and represents the principles of law now in force. 101 It is, therefore, of interest to note two significant differences between the wording of Article 118 of the 1949 convention, and that of Article 75 of the 1929 convention. First, the later convention requires the release and repatriation of the prisoners "without delay," while the earlier convention used terms which allowed the detaining power much wider latitude in determining when the prisoners shall be repatriated, namely, "the repatriation of prisoners shall be effected as soon as possible." 102 Obviously, the 1949 convention is much more stringent in its requirement than the 1929 convention. T h e term "without delay" can only be interpreted to mean that the prisoners must be released and repatriated no later than it takes to effect the physical arrangements for this purpose. 103 Further, it would appear from the terms of the 1949 convention that the belligerents may not by agreement arrange for the repatriation of the prisoners at a date later than that justified by the words "without delay," since by Article 6: "No special agreement shall adversely affect the situation of prisoners of war, as defined by the present Convention, nor restrict the rights which it confers upon them." 104 Clearly, release and repatriation, as required by the convention, are among the rights of prisoners of war. Secondly, the earlier convention provides for repatriation "after the conclusion of peace," while the 1949 convention uses the term "after the cessation of active hostilities." There is an obvious distinction between the two phrases, since in most modern wars active hostilities cease a long time before the peace treaty is concluded. In fact, as stated earlier, actual hostilities in a war are usually terminated by a general armistice between the belligerents, pending the negotiation of a peace treaty. 105 It is reasonable to assume, therefore, that the meaning of the term "after the cessation of active hostilities" is, that as soon as it is clear active hostilities have been permanently halted and will not be resumed, the belligerents must release and repatriate without delay their prisoners of war, even though no treaty of peace has as yet been concluded. However, it would equally appear that where active 100 Art. 134, Geneva Conv. Ill, 1949. 101 "Repatriation of Prisoners of War," 46 A.J.I.L. 508. 1M Italics mine. ""See also above, pp. 145-147, which refers to the discussions of the Diplomatic Conference of Geneva, 1949, when Art. 118 was under consideration. 104 Above, p. IOI. 105 Above, p. 588.

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hostilities had been halted, as by a general armistice, but there was substantial reason to believe that the hostilities might yet be revived, Article 1 1 8 would not apply, unless the parties agreed to the release and repatriation of prisoners either in the armistice agreement or otherwise. 106 T h e question arose during the armistice negotiations to end the Korean war whether a detaining power had a right to refuse to repatriate prisoners of war who objected to repatriation on political or ideological grounds. In other words, has the detaining power a right to grant, or arrange for, political asylum under such circumstances? T h e United Nations command supported such a point of view, whereas their opponents, the North Koreans and (Communist) Chinese, rejected it. T h e latter relied on the terms of Articles 1 1 8 and 1 1 9 of Geneva Convention III, 1949, apparently on the grounds that these articles expressed established international law in this regard independently of treaty obligation, since neither the government of North Korea nor the People's Republic of China had formally adhered to this convention. 107 However, in the agreement on the exchange of prisoners of war signed by both sides on J u n e 8, 1953» as a preliminary to the conclusion of an armistice, the North Koreans and Chinese yielded to the United Nations viewpoint to the extent that they agreed that a commission drawn from five neutral nations " " T h e armistice agreement suspending hostilities in the Korean war, signed July 27, 1953, at Panmunjom, Korea, made express provision (Art. Ill) for the exchange of prisoners of war held by either side. U.S. Department of State Bulletin, X X I X (Aug. 3, 1953), 137-138. 101 On July 13, 1950, the governments of North and South Korea, in answer to a plea from the U.N. secretary-general, informed the U.N. Security Council they would observe the Geneva Convention on the treatment of prisoners of war. Royal Institute of International Affairs, Chronology of International Events and Documents, VI, 467, entry of date. Which Geneva convention was apparently not specified. On Dec. 13, 1951, according to a United Press dispatch of that date from Panmunjom, Korea, where a joint subcommittee from both sides was discussing an exchange of prisoners of war, the U.N. representative reminded the North Korean representative that the latter's foreign minister had cabled the U.N. command in 1950 as follows: "I have the honor of informing you that the people's army of the democratic people's republic of North Korea strictly observes the principles of the Geneva Convention concerning prisoners of war." To this reminder, the North Korean representative is reported to have stated: "We did not say we observed the convention as a whole." The People's Republic of China on July 16, 1952, announced on the Peiping radio its adherence, with reservations, to the Geneva Convention on the treatment of prisoners of war. New York Times, July 17, 1952, p. 1, col. 1; ibid., July 25, 1952, p. 1, col. 3. However, it was not until 1957 that these two governments did in fact formally accede to the four Geneva Conventions of 1949, the Chinese accession (with reservations) to take efEect June 28, 1957; the North Korean accession (with reservations) to take efEect Feb. 27, 1958. U.N. Statement of Treaties and Int. Agreements, Feb., 1957, and Oct., 1957, U - N - Docs. ST/LEG/SER.A/120 and 128.

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should take custody of all prisoners of war unwilling to be repatriated when an armistice was signed. Representatives from each side were to be allowed to attempt to persuade the reluctant prisoners to consent to repatriation. If such persuasion failed after ninety days, the disposition of those prisoners still refusing repatriation was to be referred to a political conference of both sides to be held three months after an armistice was signed; those still remaining after another thirty days to the Neutral Nations Repatriation Commission. 108 These provisions were incorporated in the armistice suspending hostilities in the Korean war, signed at Panmunjom, Korea, July 27, 1953.109 Until the issue of voluntary repatriation was raised in the Korean armistice negotiations, it would have appeared that a detaining power could not have refused to repatriate prisoners of war on the ground that the prisoners were unwilling for any reasons to return, or that it would not be in the prisoners' own interests to return them. Arguments of this nature were considered and rejected at the Diplomatic Conference of Geneva of 1949, when the convention was being framed. 110 Certainly the fact that a prisoner might be liable to severe punishment on return to his own side has not previously been considered a bar to repatriation. 111 It has always been well recognized that upon return of a prisoner to his own side the circumstances of his capture and his conduct as a prisoner of war may be inquired into, and that he may be punished, even with death, for offenses against the laws of his own country in this connection. 112 Further, if it be urged that sharply held differences between political ideologies in the modern world render it intolerable that prisoners of war should be compelled to return to a country whose regime is totally repugnant to them, it 108 Signed at Panmunjom, Korea. See text in U.S. Department of State Bulletin, X X V I I I (June 22, 1953), 866-868. 108 Art. I l l (b). Ibid., X X I X (Aug. 3, 1953), 137. 110 See note 103, above. 111 Fauchille, II, par. 1140, describes as a delicate question whether prisoners of war who have deserted from the other side can be restored to liberty without returning them to their own state. 112 E.g., British law provides for a court of inquiry into the circumstances of his capture and the conduct of a recovered prisoner of war. The King's Regulations for the Army . . . 1940, par. 775; R u l e 124, (Army Act) Rules of Procedure, 1926; R u l e 4 (16), Board of Inquiry (Army) Rules, 1956. Punishable by death under the British Army Act, 1928, is a prisoner w h o "voluntarily serves with or voluntarily aids the enemy"—Sec. 4 (5) [Sec. 24 (ic, 2), Act of 1955]; punishable by penal servitude is a soldier on active service w h o "is taken prisoner, by want of due precaution, or through disobedience of orders, or wilful neglect of duty, or having been taken prisoner fails to rejoin His Majesty's service when able to rejoin the same"—Sec. 5 (3) [Sec. 28, Act of 1955]. See also, Art. 105 (Misconduct as a prisoner), U.S. UCMJ.

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should be borne in mind that the 1949 convention was framed at a time w h e n such differences were already acute throughout the world, and yet the convention made no allowance for refusal of repatriation under such circumstances. However, recent developments may ultimately have the effect of modifying the preexisting law upon this subject, by allowing prisoners of war to refuse repatriation on political or ideological grounds. A m o n g such developments are the prolonged controversy on this matter 1 1 3 in the armistice negotiations for ending hostilities in the Korean war, the fact that some recognition of this principle was contained in the previously mentioned agreements of June 8 and July 27, 1953, between the parties to that conflict, and the further circumstance that many states have now expressed themselves against the forced repatriation of prisoners of war in such case. 114 O n the other hand, it is too early to state that the preexisting law has already been changed in this regard, 1 1 5 especially in view of the strenuous opposition to the United Nations' viewpoint offered by a substantial number of States, which include major powers (the U.S.S.R. and the People's Republic of China). 1 1 « Also, it is clear that unless the nature and extent of such an exception to the general rule requiring the repatriation of prisoners of war at the close of hostilities were strictly defined and the exception subjected to adequate safeguards, it might seriously prejudice the operation of the general rule. 1 1 7 In this connection it would be necessary to resolve the question whether prisoners of war could insist on refusing repatriation on the grounds described, even though the detaining power was unwilling Lasting well over a year. U.N. General Assembly Resolution 610 (VII) of Dec. 3, 1952, which embodied the revised Indian plan for the resolution of the impasse in the Korean armistice negotiations on the question of the voluntary repatriation of prisoners of war, "Affirms that force shall not be used against prisoners of war to prevent or effect their return to their homelands and that they shall at all time be treated humanely in accordance with the specific provisions of the Geneva Convention and with the general spirit of the Convention." General Assembly Resolutions, Oct. 14-Dec. 21, 1952, Gen. Ass. O f f . Recs., yth Sess., Suppl., no. 20, A/2361 (1953), p. 3. See also, No. I l l of the Proposals in the resolution; ibid., p. 4. This resolution was adopted in plenary session by a vote of 54 members to 5 (the so-called Soviet bloc of states), with 1 abstention (Nationalist China). U.S. Department of State Bulletin, XXVII (Dec. 15, 1952), 963. 113

114

U 6 Potter, op. cit., 46 A.J.I.L. 509. See also Br.M.M.L., Pt. I l l , par. 263, n. 1, for a discussion of the present legal position, which it qualifies as "far from certain." 118 However, some 350 U.N. prisoners of war held, Jan. 1954, by the North Korean and Chinese (Communist) forces who refused repatriation were not obliged by their captors to accept repatriation and were, in fact, granted asylum by those countries. 117 Any attempt to intimidate prisoners into refusing repatriation is illegal; see Art. 13, Geneva Conv. Ill, 1949; above, pp. 102-103. Also illegal is any attempt to coerce prisoners into stating their political beliefs; see Art. 17, ibid,.; above, p. 105.

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to allow them to remain any longer in its territory, and, indeed, wished to return them to their own country. 118 The provisions of Geneva Convention III, 1949, apply to prisoners of war "from the time they fall into the power of the enemy and until their final release and repatriation." 1 1 9 Irrespective of the conclusion of hostilities, therefore, prisoners of war remain subject (inter alia) to the penal and disciplinary regulations of the convention so long as they continue in the hands of the detaining power. 120 Article 119 provides with regard to the release and repatriation of prisoners of war at the close of hostilities: "Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offence." 1 2 1 It follows that release and repatriation may not be postponed of prisoners accused or convicted of disciplinary offenses, or offenses which could be tried only in a court of summary jurisdiction under the law of the detaining power. Prisoners accused or convicted in judicial proceedings under the convention could be detained until those proceedings were completed, and until any sentence was served; although the detaining power may, in its discretion, discontinue the proceedings and remit any punishment. v) The effect of the close of hostilities on the position of enemy aliens and other protected persons 122 resident in the territory of a belligerent is stated by Article 46 of Geneva Convention IV, 1949: In so far as they have not been previously withdrawn, restrictive measures taken regarding protected persons shall be cancelled as soon as possible after the close of hostilities. Restrictive measures affecting their property shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities.181 138 U.S. Law 199 states: " A Detaining Power may, in its discretion, lawfully grant asylum to prisoners of war who do not desire to be repatriated." "» Art. 5, Geneva Conv. III. " " S e e Prisoners of War (Brest Litovsk) Case (1921), German Reichsgericht in Criminal Matters, Ann. Dig., 1919-1922, Case No. 300: " U p to the time when they are handed over to their home State or its plenipotentiaries prisoners of war preserve their character as such." 131 Cf., corresponding provision in Art. 75, Geneva (Prisoners of War) Convention, 1929; above, p. 609. " " O n the position of resident enemy aliens in the territory of a belligerent in time of war, see above, chap, ii, under "Treatment of Resident Enemy Aliens." For the meaning of "protected persons," see Art. 4, Geneva Conv. IV, above, p. 45. m T h e second paragraph of Art. 46 was proposed to the Diplomatic Conference of Geneva, 1949, by an Italian delegate (Maresca), who stated: " T h e amendment is

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In general, therefore, the termination of hostilities returns aliens resident in the territory of a belligerent, whether enemy aliens or otherwise, to the normal status of aliens resident there in time of peace. based on the fundamental principles of international law, according to which the private property of persons who are abroad must be respected, although it may be subject to control during hostilities. This amendment is in harmony with the fundamental principles of the Hague Convention for the protection of enemy property, particularly as regards Articles 23G, 40 and 46. Our amendment also meets certain requirements of fair dealing which nobody can disregard. . . . The amendment is also drafted in flexible terms, since it provides that the restitution of property shall be in accordance with the national legislation of the countries where the property in question is situated and subject to the conditions specified by such legislation. . . . This Article could not in any way hamper the freedom of action of the countries in which the property is situated when peace is concluded, for if these States then consider that it is essential to utilize such means for settling their debit and credit balances, they can introduce a clause into the preliminary payment agreement to the effect that restitution of such property shall be deferred to a subsequent date. This, therefore, merely constitutes an exception, which is not in itself an obstacle." Final Record, IIB, 415.

XVI CIVIL

AND

COLONIAL

WAR

T h e present chapter is an addendum to the main body of this work, whose purpose it has been to set out the laws governing the conduct of international war, that is, war between states or civil war where the rebel elements have achieved belligerent status. Except where such status has been accorded, as described earlier, 1 civil war has been regarded as a domestic matter for the state where the struggle is taking place. T h e Charter of the United Nations too, it will be recalled, excluded from the authority of that Organization "matters which are essentially within the domestic jurisdiction of any State." 2 In the past, therefore, the manner in which civil war was conducted has not been governed by the laws of war under international law. However, in considering civil war or colonial war in relation to international law, there is known to international law a status which falls short of belligerency, and is described as the status of insurgency. T h e view is held that although a foreign State may not be justified in recognizing the rebels as belligerents, owing to the absence of the conditions which must be present before such recognition may be afforded, the circumstances may warrant the lesser step of recognition of insurgency. T h e conception in international law of the status of insurgency and its effects is not too well defined, and there is some controversy as to whether it actually exists in law. 3 In effect, it appears to consist in the recognition, whether formally or informally, by a foreign government of the fact that a condition of political revolt exists in a particular See above, pp. 18-20. Art. 2 (7), U.N. Charter; but see below the Soviet viewpoint that Art. 2 of the Charter brings colonial and civil wars within the purview of international law. ' Schwarzenberger, I, 367; and Manual of International Law, p. 105. 1

2

Civil and Colonial

620

War

4

state. T h e nature of the status of insurgency was described by the United States Supreme Court in the case of The Three Friends, a vessel which was seized in 1896 by the United States government for forfeiture under the terms of the United States Neutrality Act. 5 T h e reason for the seizure was that the vessel was fitted out and armed in the United States to be employed in the revolt then proceeding in Cuba against the king of Spain, a government with which the United States was then at peace. T h e Supreme Court stated in its judgment: T h e distinction between recognition of belligerency and recognition of a condition of political revolt, between recognition of the existence of war in a material sense and of war in a legal sense, is sharply illustrated by the case before us. For here the political department 6 has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing before, at the time and since this forfeiture is alleged to have been incurred. 7

Recognition of insurgency entitles the insurgents to exercise, but only in relation to the state affording recognition, some of the rights of a belligerent within the territory and territorial waters which are the scene of the war, but not outside that area. Therefore, the rebels may prevent supplies from abroad destined for the legitimate government from entering the territory where the war is being waged, but without the right of confiscation or destruction of foreign property. 8 They may not exercise the right of visit and search on foreign ships on the high seas.9 Both the legitimate government and the insurgents may lawfully requisition the property of foreigners on the same footing as from nationals, to the same extent as in international war, provided full compensation is paid. 10 T h e view has also been taken that recogni4 See Hyde, I, 202-204; Wilson, Handbook of International Law, 3d ed., p. 45. Wilson states: " T h e admission of this fact [i.e., insurgency] is by such domestic means as may seem expedient. . . . In the parent state the method of conducting the hostilities may be a sufficient act of admission, and in a foreign state the enforcement of a neutrality law" (at p. 43). 6 T h e proceedings were brought under sec. 5283 of the Revised Statutes. ' Of the U.S. government. 7 The Three Friends (1897), 166 U.S. 1, at 63-64 (U.S. Supreme Ct.); Scott, Cases, p. 840. 8 See Hyde, III, 2184-2187; Fenwick, pp. 147-148, 176. 8 See preceding note. 10 Georges Pinson Case (1928), Franco-American Mixed Claims Commission, Ann. Dig., 1927-1928, Case No. 370; Schwarzenberger, I, 369; Hackworth, VII, 1 7 0 - 1 7 1 ; for the responsibility of a state for acts of insurgents in that state, see Hyde, II, 979-989. Recognition of insurgency in another state implies, on the part of the recognizing state, that it deems the lawful sovereign unable to control the acts of the insurgents and, therefore, not responsible for damages the insurgents may inflict on foreigners; ibid., pp. 982-983. See also Banco de Bilbao v. Sancha and Rey (1938), 2 K.B. 176 (Ct. of Appeal, England), Ann. Dig., 1938-1940, Case No. 29

Civil and Colonial

War

621

tion of insurgency constitutes an expression of a belief by a foreign power that the insurgents should not be executed as rebels if captured by the legitimate government. 11 However, as stated earlier, international law in the past has not generally been concerned with civil and colonial wars until they have developed the character of international conflicts. Nevertheless, international law is showing an increasing interest in the problem of civil and colonial war, because experience has demonstrated, especially in recent years,12 that such wars may gravely threaten international peace and security, and may contain the seeds of international conflict of calamitous dimensions. This is particularly true where the opposing sides of the civil or colonial war represent differing political ideologies and, therefore, invite the interest and support of great powers which are sympathetic to those special viewpoints. T h e concern and interest of the community of nations in this problem were reflected at the Diplomatic Conference of Geneva, 1949, by the introduction of international provisions for the regulation of the conduct of civil and colonial war into the four Geneva conventions, for the protection of war victims, established by the conference. Indeed, the Soviet delegation to that conference expressed the view that the effect of Article 2 of the Charter of the United Nations had already brought the regulation of colonial and civil wars within the purview of international law. 13 T h e provisions concerning the regulation of "armed conflict not of an international character" are contained in Article 3 in each of the four Geneva conventions of 1949. Each article is expressed in indentical terms. T h e purpose and scope of the article, as intended by those who framed its text, was stated at the conference as follows: T h e provisions embodied in Article [3] are intended to constitute a complete and exhaustive code o£ the obligations assumed by the Contracting States in the (The decrees of the de jure government had no effect in the territory controlled by the authority recognized de facto). 11 Fenwick, p. 147. 12 Above, pp. 25 f. " G e n e r a l Slavin (U.S.S.R.) at the second meeting of the Joint Committee of the conference, in the discussion on Art. 3, Geneva Conv. I, an article common to the four conventions (see text), stated: " T h e United Kingdom Delegation has alluded to the fact that colonial and civil wars were not regulated by international law . . . the jurists themselves were divided in opinion on this point, some were of the view that civil war was regulated by international law. Since the creation of the Organization of the United Nations, this question seemed settled. Article 2 of the Charter provided that Member States must ensure peace and world security. They could therefore not be indifferent to the cessation of hostilities, no matter the character or localization of the conflict. Colonial and civil wars therefore came within the purview of international law." Final Record, IIB, 14.

622

Civil and Colonial

War

event of non-international conflicts; apart from this text, no other Article of the four Conventions applies to civil wars. Where the term "Parties to the conflict" is used in other Articles of the Convention, it should always be understood as referring to Parties to an international conflict. Where it refers to Parties to a noninternational conflict, Article [3] enumerates the only obligations by which they are bound, and by which States which are not Parties to the conflict are also bound. T h e question of belligerency is completely outside this scope of the provisions and of the solutions proposed in the four Conventions." T h e last sentence makes it clear that the provisions laid down by Article 3 apply to all cases of civil war where the rebels have not yet been recognized as possessing belligerent status. Further, the application of the rules of Article 3 to a conflict does not confer belligerent status on the parties to the conflict. T h i s is made clear by the final sentence of Article 3, which is given below. 1 5 T h e terms of Article 3 are as follows: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) 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 similar criteria. T o this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. T h e Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. T h e application of the preceding provisions shall not affect the legal status of the Parties to the conflict.18 " B o l l a , delegate from Switzerland. Final Record, IIB, 336. T h e numeral "3" is interpolated, since he referred to Art. aA, which was the original number of Art. 3. See also above, p. 69, n. 10. 16 See also below, p. 625. 18 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, contains the following provision: "Article 19. Conflicts

Civil

and

Colonial

War

623

So far as the provisions of Article 3 do constitute an international code for the regulation of civil war, it is obviously very sketchy, setting forth only a bare minimum of humanitarian

requirements.

However, it cannot be said that, in matters not covered by these provisions, the manner in which internal warfare is conducted lies within the unrestricted discretion of the parties to the conflict. There has long been a right of humanitarian intervention by third states in a civil war where cruelties not permitted by the laws of international warfare are practiced in a systematic manner. 17 It is obvious, for instance, that third states would feel compelled to intervene to prevent the use of poison gas or bacteriological warfare in a civil war. Intervention on "grounds of humanity" by third states in the internal affairs of other states was discussed earlier in connection with crimes against humanity. 18 It will be noted that Article 3 binds each party to an armed noninternational conflict to apply the provisions of the article, where the conflict takes place in the territory of one of the parties to the conventions. Since the rebel elements are manifestly not parties to the conventions, and, indeed, are without personality in

international

law, their obligation to observe Article 3 must be based on one or both of the following contentions. Either the rebels are bound because the original adherence of the legitimate government to a convention containing the article binds all its subjects even though some

Not of An International Character. 1. In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property. 2. The parties to the conflict shall endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. 3. The United Nations Educational, Scientific and Cultural Organization may offer its services to the parties to the conflict. 4. The application of the preceding provisions shall not affect the legal status of the parties to the conflict." "See Stowell, Intervention in International Law, pp. 125-139 ("Uncivilized Warfare"). He cited such authorities as Hall, Sheldon Amos, and Heffter, in support of the right of intervention (p. 126). See also the intervention of Great Britain, France, and Austria, 1832, to protest Russian atrocities in suppressing the Polish uprising (ibid., p. 113), and United States intervention in Cuba, 1898, against Spain, "to put an end to the shocking treatment which the military authorities were inflicting upon the non-combatant population in their futile efforts to suppress the insurrection" (at pp. 120-122). Oppenheim, II, 150 n., states that in civil war "it has been found necessary to regularise and humanise hostilities either by express recognition of belligerency, or by tacit observance of the rules of warfare as established by International Law." Cf., Wilson, op. cit., p. 41: "As regards relations of insurgents and parent state, it may be said that they must so far as possible, observe the rules of civilized warfare." M

Above, pp. 437 f.

624

Civil and Colonial War

of them may later rebel against that government,19 or the article is regarded as setting forth established law independently of contractual obligation. Support for the latter contention will be found in the very content of the article, as well as the fact that the weight of world opinion subscribes to these provisions. Sixty-one States, great and small, signed one or more of the conventions. Quite apart from any question of obligation, the rebels may obviously announce their voluntary adherence to the terms of the article. In any case, it would appear that a contracting party to the Geneva Conventions, 1949, is bound to apply the provisions of Article 3 irrespective of reciprocity on the part of the opposing party in an internal conflict. This obligation is based on humanitarian grounds.20 Sanctions for breach of the provisions of the article are provided in the conventions.21 It is noteworthy that "grave breaches" of the conventions are punishable, not only by the state which has suffered the injuries, but by third states not involved in the conflict.22 The discussions on Article 3 when it was formulated at the Diplomatic Conference of Geneva, 1949, offer some explanation on certain terms used in the text of the article, and, therefore, of the ambit of Article 3 and its application to particular circumstances. i) Most important in the interpretation of Article 3 is the meaning of the expression "armed conflict not of an international character," since this term governs the cases to which the article applies. No definition of the term is given in the convention,23 but the following points appear from the discussion at the conference: 19 Such a point of view was expressed by a Greek delegate (Agathocles) to the Diplomatic Conference of Geneva, 1949, and concurred in by Siordet, delegate of the International Committee of the Red Cross. Final Record, IIB, 94. 50 See the discussion on this point at the 1949 conference. Ibid., pp. 94, 335, in particular. 21 Arts. 49 and 50 in Geneva Conv. I; see above, pp. 92-93. There are corresponding articles in the other three conventions. 22 See above, p. 93, and n. 91. T h e report of the Joint Committee of the conference states, regarding Art. 3, that the text of the article "imposes obligations only on the parties to the conflict, and that neutrals are not bound by the Convention in the case of a purely internal conflict." Final Record, IIB, 129. However, in construing the provisions for enforcing the convention, the previously existing right of humanitarian intervention noted above (by third states in a civil war where cruelties, not permitted by the laws of war, are practiced) must be taken into account. T h a t doubt remained on how far the rest of the convention applied in noninternational conflict, is shown by Argentina's reservation on signing the conventions: "With the reservation that Article 3, common to all four Conventions, shall be the only Article, to the exclusion of all others, which shall be applicable in the case of armed conflicts not of an international character." Geneva Conventions . . . (U.S. Dept. of State Pub. 3938, Gen. For. Pol. Ser. 34, 1950), p. 243. 28 Portugal made the following reservation to Art. 3: " A s there is no actual definition of what is meant by a conflict not of an international character, and as,

Civil

and

Colonial

625

War progress.24

a) For the article to apply, an armed conflict must be actually in b) "An armed conflict, as understood in this provision, implies some form o£ organization among the parties to the conflict." 26 c) The expression "not of an international character" in relation to "armed conflicts" certainly includes civil war, wars of resistance, and wars of liberation, but not banditry or riots.2® ii) There was some dispute at the conference as to whether prisoners of war, that is, persons captured by the opposing side, were included in the term "members of the armed forces who have laid down their arms" in subparagraph (1) of the article. 27 However, it is obvious that prisoners of war are included among the persons referred to in the paragraph, since reference is also made to "those placed hors

de combat

by sickness, wounds, detention, or any other

cause." iii) T h e provisions of Article 3 are designed primarily to regulate relations between the parties to an internal conflict, and not the position of so-called "neutrals," that is, third states, in regard to the conflict. It was made clear at the conference that the obligations imposed by the article are, therefore, laid only on parties to such strife and not on the neutral states.28 T h e same point is also emphasized by the ultimate paragraph of the Article, which states: " T h e application of the preceding provisions shall not affect the legal status of the parties to the conflict." T h i s clearly indicates that the observance of the article does not confer belligerent status on the parties to the conflict, and, therefore, does not confer the status of a neutral, as it is understood in international conflict, on third states.29 in case this term is intended to refer solely to civil war, it is not clearly laid down at what moment an armed rebellion within a country should be considered as having become a civil war, Portugal reserves the right not to apply the provisions of Article 3, in so far as they may be contrary to the provisions of Portuguese law in all territories subject to her sovereignty in any part of the world." Ibid., p. 246. 24 Final Record, IIB, 335; statement of Bolla, Swiss delegate. 26 Loc. cit. 28 Loc. cit. 27 Bolla took the view that prisoners of war were included (Final Record, IIB, 336); Winkler, delegate from Czechoslovakia, that they were not (at p. 334). 28 The report of the Joint Committee of the conference stated: "In the course of the discussion it was made clear that, in spite of the term 'the High Contracting Parties' which appears at the beginning of the Article, this text imposes obligations only on the Parties to the conflict, and that neutrals are not bound by the Convention in the case of a purely internal conflict." Final Record, IIB, 129. But see note 82, above. w "The Convention must be applied even where the opposing parties were not recognized as belligerents." Castberg, delegate from Norway, in Final Record, IIB, 11. Not only are the provisions applied "independently of the legal status of the

626

Civil and Colonial War

In general, a third state is obligated to refrain from intervention in the internal affairs of another state, and, therefore, in a civil war in another state.30 T h i s principle is affirmed in Article 2 (7) of the United Nations Charter which excludes United Nations intervention "in matters which are essentially within

the domestic

jurisdiction

of any state," and does not require U n i t e d Nations members to submit such matters to settlement under the Charter. A l t h o u g h

there

have been numerous examples in the past of intervention on humanitarian grounds by third states in the internal or colonial conflicts of another state, as well as intervention to abate a state of chronic civil war which constituted an international nuisance, 31 it would appear that such matters would now come within the purview of the United Nations so far as they constituted a threat to international peace and security. Article 2 (4) of the U n i t e d Nations Charter strictly enjoins members from "the threat or use of force against the territorial integrity or political independence of any State." Attempts have been made by jurists to regulate in detail the position of third states in regard to civil war in another state, 32 but no universally

accepted body

of rules has resulted. T h e

Sixth

Inter-

national Conference of American States meeting at H a b a n a in 1928 adopted the Convention on the Duties and Rights of [Neutral] States in the Event of Civil Strife, 33 which has been ratified by the U n i t e d States, among other states. Article 1 of the convention provides: T h e contracting States bind themselves to observe the following rules with regard to civil strife in another one of them: (1) T o use all means at their disposal to prevent the inhabitants of their territory, nationals or aliens, from participating in, gathering elements, crossing the boundary or sailing from their territory for the purpose of starting or promoting civil strife, (a) T o disarm and intern every rebel force crossing their boundaries, the expenses of internment to parties to the conflict [but] this status would not be affected by the application of the Convention." Report of Special Committee of the Joint Committee, ibid., p. 120. M See, for example, Stowell, op. cit., pp. 108 n., 321 f., 345 f. Hyde, III, 2331, points out that so long as recognition of belligerency is withheld, "the outside State appears to find itself burdened with the obligation to make endeavor not to permit the insurgents to commit any acts within, or make any use of, its territory which that State could not properly tolerate were it a neutral in a war between foreign countries. T h e obligation of prevention in relation to a military expedition about to depart from the national domain is perhaps illustrative." 81 See Stowell, op. cit., pp. 51-62, 86-139; Fenwick, pp. 242-243. 33 T h e Institute of International Law in 1900 adopted a set of rules relating to the rights and duties of foreign states in such circumstances. See Annuaire, XVIII, 227-229; Scott, ed., Resolutions of the Institute of International Law, pp. 157-159. In 1927, the International Commission of Jurists of American States drafted the convention later adopted by the International Conference of American States in 1928; see text of draft in 22 A .J.I.L., Spec. Suppl., 267. »•See Malloy, Treaties . . . , IV, 4725 f.

Civil and Colonial

War

627

be borne by the State where public order may have been disturbed. T h e arms found in the hands of rebels may be seized and withdrawn by the government of the country granting asylum, to be returned, once the struggle has ended, to the State in civil strife. (3) T o forbid the traffic in arms and war material, except when intended for the government, while the belligerency of the rebels has not been recognized, in which latter case the rules of neutrality shall be applied. (4) T o prevent that within their jurisdiction there be equipped, armed or adapted for warlike purposes any vessel intended to operate in favor of the rebellion. 34 T h e recognition of insurgency described earlier 3 5 implies a k i n d of neutrality regarding the civil conflict on the part of the recognizing state, since the latter allows the insurgents to exercise i n relation to it some of the rights w h i c h a belligerent m a y exercise in regard to a neutral state. Before leaving the subject of civil war, reference should be m a d e to the status of the armed forces of subject nations w h i c h seize the opportunity of international war i n w h i c h their rulers are engaged to liberate

themselves from that rule. E x a m p l e s are the

Czechoslovak

and Polish armies d u r i n g W o r l d W a r I, w h i c h a l t h o u g h

composed

(partially in the latter case) of persons technically enemy

nationals,

were recognized by Great Britain a n d other A l l i e d Powers as allied and cobelligerent armies. 36 I n the past the general v i e w has been that recognition of this nature in n o way binds the enemy to recognize the status Article 4 A

conferred, 3 7 b u t

this position

(3) of G e n e v a C o n v e n t i o n

has n o w

III,

been

altered

1949. A c c o r d i n g

by

to that

provision, "members of regular armed forces w h o profess allegiance to a government or an authority not recognized b y

the

Detaining

Power" become prisoners of war. 38 Members of revolutionary armies of the type described taking part in international war must, therefore, be treated

as l a w f u l belligerents

on falling into

the hands of

the

enemy. 34 Jessup, A Modern Law of Nations, p. 185, characterizes this convention as a "partial acceptance" of "the principle of mutual assistance to suppress internal disturbances of the magnitude of revolution or civil war." In May, 1919, in view of the long-continued civil strife in China, twelve neutral powers, including the United States, Great Britain, France, Japan, Russia, and Italy, agreed through their diplomatic representatives in Peking to restrict shipments from their countries to China of arms and munitions of war, and material destined exclusively for their manufacture, until the establishment of a government whose authority should be recognized throughout the country. Hackworth, VII, 628. 35 Above, pp. 619-621. 36 See Schwarzenberger, I, 369-370; Oppenheim, II, 200-201; Hyde, I, 154-155. 37 Oppenheim, loc. cit., implies that the enemy may be bound by such recognition. 38 See above, pp. 58, 97-99.

APPENDICES

Appendix I DRAFT AGREEMENT

RELATING

HOSPITAL ZONES AND (ANNEX

I TO

TO

LOCALITIES

GENEVA

CONVENTION

I,

1949)

(See Article 23 of that convention.) DRAFT

AGREEMENT

RELATING

TO

HOSPITAL AND S A F E T Y ZONES AND LOCALITIES

(ANNEX

CONVENTION

IV,

I TO

GENEVA

1949)

(See Article 14 of that convention.)

Article

1

Hospital (and safety zones)* shall be strictly reserved for the persons mentioned in Article 23 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (and in Article 14 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949) and for the personnel entrusted with the organization and administration of these zones and localities and with the care of the persons therein assembled. Nevertheless, persons whose permanent residence is within such zones shall have the right to stay there. * Variations of the second draft agreement from the first are contained in parentheses.

Appendix

632

I

Article 2 No person residing, in whatever capacity, in a hospital (and safety zone) shall perform any work, either within or without the zone, directly connected with military operations or the production of war material. Article 3 The Power establishing a hospital (and safety zone) shall take all necessary measures to prohibit access to all persons who have no right of residence or entry therein. Article 4 Hospital (and safety zones) shall fulfil the following conditions: (a) They shall comprise only a small part of the territory governed by the Power which has established them. (b) They shall be thinly populated in relation to the possibilities of accommodation. (c) They shall be far removed and free from all military objectives, or large industrial or administrative establishments. (d) They shall not be situated in areas which, according to every probability, may become important for the conduct of the war. Article 5 Hospital (and safety zones) shall be subject to the following obligations: (a) The lines of communication and means of transport which they possess shall not be used for the transport of military personnel or material, even in transit. (b) They shall in no case be defended by military means. Article 6 (of the Agreement annexed to Geneva Convention I) Hospital zones shall be marked by means of red crosses (red crescents, red lions and suns) on a white background placed on the outer precincts and on the buildings. They may be similarly marked at night by means of appropriate illumination.

Appendix

I

633

Article 6 (of the Agreement annexed to Geneva Convention IV) Hospital and safety zones shall be marked by means of oblique red bands on a white ground, placed on the buildings and outer precincts. Zones reserved exclusively for the wounded and sick may be marked by means of the Red Cross (Red Crescent, Red Lion and Sun) emblem on a white ground. They may be similarly marked at night by means of appropriate illumination. Article 7 The Powers shall communicate to all the High Contracting Parties in peacetime or on the outbreak of hostilities, a list of the hospital (and safety zones) in the territories governed by them. They shall also give notice of any new zones set up during hostilities. As soon as the adverse Party has received the above-mentioned notification, the zone shall be regularly established. If, however, the adverse Party considers that the conditions of the present agreement have not been fulfilled, it may refuse to recognize the zone by giving immediate notice thereof to the Party responsible for the said zone, or may make its recognition of such zone dependent upon the institution of the control provided for in Article 8. Article 8 Any Power having recognized one or several hospital (and safety zones) instituted by the adverse Party shall be entitled to demand control by one or more Special Commissions, for the purpose of ascertaining if the zones fulfil the conditions and obligations stipulated in the present agreement. For this purpose, members of the Special Commissions shall at all times have free access to the various zones and may even reside there permanently. They shall be given all facilities for their duties of inspection. Article 9 Should the Special Commissions note any facts which they consider contrary to the stipulations of the present agreement, they shall at once draw the attention of the Power governing the said Zone to these

634

Appendix

I

facts, and shall fix a time limit of five days within which the matter should be rectified. They shall duly notify the Power who has recognized the zone. If, when the time limit has expired, the Power governing the zone has not complied with the warning, the adverse Party may declare that it is no longer bound by the present agreement in respect of the said zone. Article

10

Any Power setting up one or more hospital (and safety) zones, and the adverse Parties to whom their existence has been notified, shall nominate or have nominated by the Protecting Powers or by other neutral Powers, the persons who shall be (Substitute for the last five words:—persons eligible to be) members of the Special Commissions mentioned in Articles 8 and 9. Article

11

In no circumstances may hospital (and safety zones) be the object of attack. They shall be protected and respected at all times by the Parties to the conflict. Article

12

In the case of occupation of a territory, the hospital (and safety zones) therein shall continue to be respected and utilized as such. Their purpose may, however, be modified by the Occupying Power, on condition that all measures are taken to ensure the safety of the persons accommodated. Article

13

The present agreement shall also apply to localities which the Powers may utilize for the same purposes as hospital (and safety) zones.

Appendix II REGULATIONS COLLECTIVE (ANNEX

III

CONCERNING RELIEF

TO

CONVENTION

GENEVA III,

1949)

(See Article 73 of that convention.)

Article

i

Prisoners' representatives shall be allowed to distribute collective relief shipments for which they are responsible, to all prisoners of war administered by their camp, including those who are in hospitals, or in prisons or other penal establishments.

Article

2

T h e distribution of collective relief shipments shall be effected in accordance with the instructions of the donors and with a plan drawn up by the prisoners' representatives. T h e issue of medical stores shall, however, be made for preference in agreement with the senior medical officers, and the latter may, in hospitals and infirmaries, waive the said instructions, if the needs of their patients so demand. W i t h i n the limits thus defined, the distribution shall always be carried out equitably.

Article

3

T h e said prisoners' representatives or their assistants shall be allowed to go to the points of arrival of relief supplies near their camps,

636

Appendix

II

so as to enable the prisoners' representatives or their assistants to verify the quality as well as the quantity of the goods received, and to make out detailed reports thereon for the donors. Article

4

Prisoners' representatives shall be given the facilities necessary for verifying whether the distribution of collective relief in all subdivisions and annexes of their camps has been carried out in accordance with their instructions. Article

5

Prisoners' representatives shall be allowed to fill up, and cause to be filled u p by the prisoners' representatives of labour detachments or by the senior medical officers of infirmaries and hospitals, forms or questionnaires intended for the donors, relating to collective relief supplies (distribution, requirements, quantities, etc.). Such forms and questionnaires, duly completed, shall be forwarded to the donors without delay. Article

6

In order to secure the regular issue of collective relief to the prisoners of war in their camp, and to meet any needs that may arise from the arrival of new contingents of prisoners, prisoners' representatives shall be allowed to build up and maintain adequate reserve stocks of collective relief. For this purpose, they shall have suitable warehouses at their disposal; each warehouse shall be provided with two locks, the prisoners' representative holding the keys of one lock and the camp commander the keys of the other.

Article

7

W h e n collective consignments of clothing are available, each prisoner of war shall retain in his possession at least one complete set of clothes. If a prisoner has more than one set of clothes, the prisoners' representative shall be permitted to withdraw excess clothing from those with the largest number of sets, or particular articles in excess of one, if this is necessary in order to supply prisoners who are less well provided. He shall not, however, withdraw second sets of under-

Appendix

II

637

clothing, socks or footwear, unless this is the only means of providing for prisoners of war with none. Article

8

T h e High Contracting Parties, and the Detaining Powers in particular, shall authorize, as far as possible and subject to the regulations governing the supply of the population, all purchases of goods made in their territories for the distribution of collective relief to prisoners of war. T h e y shall similarly facilitate the transfer of funds and other financial measures of a technical or administrative nature taken for the purpose of making such purchases. Article

9

T h e foregoing provisions shall not constitute an obstacle to the right of prisoners of war to receive collective relief before their arrival in a camp or in the course of transfer, nor to the possibility of representatives of the Protecting Power, the International Committee of the R e d Cross, or any other body giving assistance to prisoners which may be responsible for the forwarding of such supplies, ensuring the distribution thereof to the addressees by any other means that they may deem useful.

Appendix I I I MODEL DIRECT AND

AGREEMENT

CONCERNING

REPATRIATION

ACCOMMODATION

IN N E U T R A L

COUNTRIES

OF W O U N D E D A N D S I C K

PRISONERS

OF W A R (ANNEX I TO

GENEVA

CONVENTION

III,

1949)

(See Article 110 of that convention.)

I. Principles for Direct Repatriation and Accommodation in Neutral Countries A. Direct Repatriation T h e following shall be repatriated direct: 1) All prisoners of war suffering from the following disabilities as the result of trauma: loss of a limb, paralysis, articular or other disabilities, when this disability is at least the loss of a hand or a foot, or the equivalent of the loss of a hand or a foot. Without prejudice to a more generous interpretation, the following shall be considered as equivalent to the loss of a hand or a foot: a) Loss of a hand or of all the fingers, or of the thumb and forefinger of one hand; loss of a foot, or of all the toes and metatarsals of one foot.

Appendix

III

639

b) Ankylosis, loss of osseous tissue, cicatricial contracture preventing the functioning of one of the large articulations or of all the digital joints of one hand. c) Pseudarthrosis of the long bones. d) Deformities due to fracture or other injury which seriously interfere with function and weight-bearing power. 2) All wounded prisoners of war whose condition has become chronic, to the extent that prognosis appears to exclude recovery—in spite of treatment—within one year from the date of the injury, as, for example, in case of: a) Projectile in the heart, even if the Mixed Medical Commission should fail, at the time of their examination, to detect any serious disorders. b) Metallic splinter in the brain or the lungs, even if the Mixed Medical Commission cannot, at the time of examination, detect any local or general reaction. c) Osteomyelitis, when recovery cannot be foreseen in the course of the year following the injury, and which seems likely to result in ankylosis of a joint, or other impairments equivalent to the loss of a hand or a foot. d) Perforating and suppurating injury to the large joints. e) Injury to the skull, with loss or shifting of bony tissue. f) Injury or burning of the face with loss of tissue and functional lesions. g) Injury to the spinal cord. h) Lesion of the peripheral nerves, the sequelae of which are equivalent to the loss of a hand or foot, and the cure of which requires more than a year from the date of injury, for example: injury to the brachial or lumbosacral plexus median or sciatic nerves, likewise combined injury to the radial and cubital nerves or to the lateral popliteal nerve (N. peroneous communis) and medial popliteal nerve (N. tibialis); etc. T h e separate injury of the radial (musculospiral), cubital, lateral or medial popliteal nerves shall not, however, warrant repatriation except in case of contractures or of serious neurotrophic disturbance. i) Injury to the urinary system, with incapacitating results. 3) All sick prisoners whose condition has become chronic to the extent that prognosis seems to exclude recovery—in spite of treatment —within one year from the inception of the disease, as, for example, in case of: a) Progressive tuberculosis of any organ which, according to

Appendix

640

b) c)

d)

e)

f)

g)

h)

i)

III

medical prognosis, cannot be cured or at least considerably improved by treatment in a neutral country. Exudate pleurisy. Serious diseases of the respiratory organs of non-tubercular etiology, presumed incurable, for example: serious pulmonary emphysema, with or without bronchitis; chronic asthma; 1 chronic bronchitis 1 lasting more than one year in captivity; bronchiectasis; 1 etc. Serious chronic affections of the circulatory system, for example: valvular lesions and myocarditis,1 which have shown signs of circulatory failure during captivity, even though the Mixed Medical Commission cannot detect any such signs at the time of examination; affections of the pericardium and the vessels (Buerger's disease, aneurisms of the large vessels); etc. Serious chronic affections of the digestive organs, for example: gastric or duodenal ulcer; sequelae of gastric operations performed in captivity; chronic gastritis, enteritis or colitis, having lasted more than one year and seriously affecting the general condition; cirrhosis of the liver; chronic cholecystopathy;1 etc. Serious chronic affections of the genito-urinary organs, for example: chronic diseases of the kidney with consequent disorders; nephrectomy because of a tubercular kidney; chronic pyelitis or chronic cystitis; hydroephrosis or pyonephrosis; chronic grave gynaecological conditions; normal pregnancy and obstetrical disorder, where it is impossible to accommodate in a neutral country; etc. Serious chronic diseases of the central and peripheral nervous system, for example: all obvious psychoses and psychoneuroses, such as serious hysteria, serious captivity psychoneurosis, etc., duly verified by a specialist; 1 any epilepsy duly verified by the camp physician; 1 cerebral arteriosclerosis; chronic neuritis lasting more than one year; etc. Serious chronic diseases of the neuro vegetative system, with considerable diminution of mental or physical fitness, noticeable loss of weight and general asthenia. Blindness of both eyes, or of one eye when the vision of the

1 The decision of the Mixed Medical Commission shall be based to a great extent on the records kept by camp physicians and surgeons of the same nationality as the prisoners of war, or on an examination by medical specialists of the detaining power.

Appendix

k)

1) m)

n) o)

p)

q) r)

641

III

other is less than 1 in spite of the use of corrective glasses; d i m i n u t i o n of visual acuity in cases where it is impossible to restore it by correction to an acuity of i/2 in at least one eye; 1 other grave ocular affections, for example: glaucoma, iritis, choroiditis; trachoma; etc. Auditive disorders, such as total unilateral deafness, if the other ear does not discern the ordinary spoken word at a distance of one metre; 1 etc. Serious affections of metabolism, for example: diabetes mellitus requiring insulin treatment; etc. Serious disorders of the endocrine glands, for example: thyrotoxicosis; hypothyrosis; Addison's disease; Simmonds' cachexia; tetany; etc. Grave and chronic disorders of the blood-forming organs, Serious cases of chronic intoxication, for example: lead poisoning, mercury poisoning, morphinism, cocainism, alcoholism; gas or radiation poisoning; etc. Chronic affections of locomotion, with obvious functional disorders, for example: arthritis deformans; primary and secondary progressive chronic polyarthritis; rheumatism with serious clinical symptoms; etc. Serious chronic skin diseases, not amenable to treatment, Any malignant growth.

s) Serious chronic infectious diseases, persisting for one year after their inception, for example: malaria with decided organic impairment, amoebic or bacillary dysentery with grave disorders; tertiary visceral syphilis resistant to treatment; leprosy; etc. t) Serious avitaminosis or serious inanition.

B. Accommodation in Neutral Countries T h e following shall be eligible for accommodation in a neutral country: 1) All wounded prisoners of war who are not likely to recover in captivity, b u t who might be cured or whose condition might b e considerably improved by accommodation in a neutral country. 1 The decision of the Mixed Medical Commission shall be based to a great extent on the records kept by camp physicians and surgeons of the same nationality as the prisoners of war, or on an examination by medical specialists of the detaining power.

64?

Appendix

III

2) Prisoners of war suffering from any form of tuberculosis, of whatever organ, and whose treatment in a neutral country would be likely to lead to recovery or at least to considerable improvement, with the exception of primary tuberculosis cured before captivity. 3) Prisoners of war suffering from affections requiring treatment of the respiratory, circulatory, digestive, nervous, sensory, genito-urinary, cutaneous, locomotive organs, etc., if such treatment would clearly have better results in a neutral country than in captivity. 4) Prisoners of war who have undergone a nephrectomy in captivity for a non-tubercular renal affection; cases of osteomyelitis, on the way to recovery or latent; diabetes mellitus not requiring insulin treatment; etc. 5) Prisoners of war suffering from war or captivity neuroses. Cases of captivity neurosis which are not cured after three months of accommodation in a neutral country, or which after that length of time are not clearly on the way to complete cure, shall be repatriated. 6) All prisoners of war suffering from chronic intoxication (gases, metals, alkaloids, etc.), for whom the prospects of cure in a neutral country are especially favourable. 7) All women prisoners of war who are pregnant or mothers with infants and small children. T h e following cases shall not be eligible for accommodation in a neutral country: 1) A l l duly verified chronic psychoses. 2) All organic or functional nervous affections considered to be incurable. 3) All contagious diseases during the period in which they are transmissible, with the exception of tuberculosis. II. General Observations 1) T h e conditions given shall, in a general way, be interpreted and applied in as broad a spirit as possible. Neuropathic and psychopathic conditions caused by war or captivity, as well as cases of tuberculosis in all stages, shall above all benefit by such liberal interpretation. Prisoners of war who have sustained several wounds, none of which, considered by itself, justifies repatriation, shall be examined in the same spirit, with due regard for the psychic traumatism due to the number of their wounds.

Appendix

HI

643

2) All unquestionable cases giving the right to direct repatriation (amputation, total blindness or deafness, open pulmonary tuberculosis, mental disorder, malignant growth, etc.) shall be examined and repatriated as soon as possible by the camp physicians or by military medical commissions appointed by the Detaining Power. 3) Injuries and diseases which existed before the war and which have not become worse, as well as war injuries which have not prevented subsequent military service, shall not entitle to direct repatriation. 4) T h e provisions of this Annex shall be interpreted and applied in a similar manner in all countries party to the conflict. T h e Powers and authorities concerned shall grant to Mixed Medical Commissions all the facilities necessary for the accomplishment of their task. 5) T h e examples quoted under (I) above represent only typical cases. Cases which do not correspond exactly to these provisions shall be judged in the spirit of the provisions of Article 1 1 0 of the present Convention, and of the principles embodied in the present Agreement.

Appendix IV REGULATIONS

CONCERNING

MIXED MEDICAL (ANNEX

II T O

CONVENTION

COMMISSIONS

GENEVA III,

1949)

(See Article 112 of that convention.)

Article

1

T h e Mixed Medical Commissions provided for in Article 1 1 2 of the Convention shall be composed of three members, two of whom shall belong to a neutral country, the third being appointed by the Detaining Power. One of the neutral members shall take the chair. Article 2 The two neutral members shall be appointed by the International Committee of the Red Cross, acting in agreement with the Protecting Power, at the request of the Detaining Power. They may be domiciled either in their country of origin, in any other neutral country, or in the territory of the Detaining Power. Article 3 The neutral members shall be approved by the Parties to the conflict concerned, who shall notify their approval to the International Committee of the Red Cross and to the Protecting Power. Upon such notification, the neutral members shall be considered as effectively appointed.

Appendix

IV

645 Article 4

Deputy members shall also be appointed in sufficient number to replace the regular members in case of need. They shall be appointed at the same time as the regular members or, at least, as soon as possible. Article 5 If for any reason the International Committee of the Red Cross cannot arrange for the appointment of the neutral members, this shall be done by the Power protecting the interests of the prisoners of war to be examined. Article 6 So far as possible, one of the two neutral members shall be a surgeon and the other a physician. Article 7 The neutral members shall be entirely independent of the Parties to the conflict, which shall grant them all facilities in the accomplishment of their duties. Article 8 By agreement with the Detaining Power, the International Committee of the Red Cross, when making the appointments provided for in Articles 2 and 4 of the present Regulations, shall settle the terms of service of the nominees. Article 9 T h e Mixed Medical Commissions shall begin their work as soon as possible after the neutral members have been approved, and in any case within a period of three months from the date of such approval. Article

10

The Mixed Medical Commissions shall examine all the prisoners designated in Article 1 1 3 of the Convention. They shall propose re-

646

Appendix

IV

patriation, rejection, or reference to a later examination. Their decisions shall be made by a majority vote. Article

11

The decisions made by the Mixed Medical Commissions in each specific case shall be communicated, during the month following their visit, to the Detaining Power, the Protecting Power and the International Committee of the Red Cross. The Mixed Medical Commissions shall also inform each prisoner of war examined of the decision made, and shall issue to those whose repatriation has been proposed, certificates similar to the model appended to the present Convention. Article

12

The Detaining Power shall be required to carry out the decisions of the Mixed Medical Commission within three months of the time when it receives due notification of such decisions. Article

13

If there is no neutral physician in a country where the services of a Mixed Medical Commission seem to be required, and if it is for any reason impossible to appoint neutral doctors who are resident in another country, the Detaining Power, acting in agreement with the Protecting Power, shall set up a Medical Commission which shall undertake the same duties as a Mixed Medical Commission, subject to the provisions of Articles 1, 2, 3, 4, 5 and 8 of the present Regulations. Article

14

Mixed Medical Commissions shall function permanently and shall visit each camp at intervals of not more than six months.

Appendix V DRAFT

REGULATIONS

CONCERNING (ANNEX

II T O

CONVENTION

COLLECTIVE

RELIEF

GENEVA IV,

1949)

(See Article 109 of that convention.)

Article

i

The Internee Committees shall be allowed to distribute collective relief shipments for which they are responsible, to all internees who are dependent for administration on the said Committee's place of internment, including those internees who are in hospitals, or in prisons or other penitentiary establishments. Article 2 The distribution of collective relief shipments shall be effected in accordance with the instructions of the donors and with a plan drawn up by the Internee Committees. The issue of medical stores shall, however, be made for preference in agreement with the senior medical officers, and the latter may, in hospitals and infirmaries, waive the said instructions, if the needs of their patients so demand. Within the limits thus defined, the distribution shall always be carried out equitably. Article 3 Members of Internee Committees shall be allowed to go to the railway stations or other points of arrival of relief supplies near their

648

Appendix

V

places of internment so as to enable them to verify the quantity as well as the quality of the goods received and to make out detailed reports thereon for the donors. Article 4 Internee Committees shall be given the facilities necessary for verifying whether the distribution of collective relief in all subdivisions and annexes of their places of internment has been carried out in accordance with their instructions. Article 5 Internee Committees shall be allowed to complete, and to cause to be completed by members of the Internee Committees in labour detachments or by the senior medical officers of infirmaries and hospitals, forms or questionnaires intended for the donors, relating to collective relief supplies (distribution, requirements, quantities, etc.). Such forms and questionnaires, duly completed, shall be forwarded to the donors without delay. Article 6 In order to secure the regular distribution of collective relief supplies to the internees in their place of internment, and to meet any needs that may arise through the arrival of fresh parties of internees, the Internee Committees shall be allowed to create and maintain sufficient reserve stocks of collective relief. For this purpose, they shall have suitable warehouses at their disposal; each warehouse shall be provided with two locks, the Internee Committee holding the keys of one lock, and the commandant of the place of internment the keys of the other. Article 7 T h e High Contracting Parties, and the Detaining Powers in particular, shall, so far as is in any way possible and subject to the regulations governing the food supply of the population, authorize purchases of goods to be made in their territories for the distribution of collective relief to the internees. They shall likewise facilitate the transfer of funds and other financial measures of a technical or administrative nature taken for the purpose of making such purchases.

Appendix

V

649 Article 8

T h e foregoing provisions shall not constitute an obstacle to the right of internees to receive collective relief before their arrival in a place of internment or in the course of their transfer, nor to the possibility of representatives of the Protecting Power, or of the International Committee of the Red Cross or any other humanitarian organization giving assistance to internees and responsible for forwarding such supplies, ensuring the distribution thereof to the recipients by any other means they may deem suitable.

Appendix V I T H E OF

H A G U E

AIR

RULES

W A R F A R E ,

1923

( T h e Rules of Aerial Warfare, 1 9 2 3 , Drafted by a Commission of Jurists at T h e Hague, December, 1 9 2 2 February,

1923.)1

C H A P T E R APPLICABILITY:

I

CLASSIFICATION AND

Article

MARKS

1

The rules of aerial warfare apply to all aircraft, whether lighter or heavier than air, irrespective of whether they are, or are not, capable of floating on the water. Article 2 The following shall be deemed to be public aircraft: a) Military aircraft. b) Non-military aircraft exclusively employed in the public service. All other aircraft shall be deemed to be private aircraft. Article 3 A military aircraft shall bear an external mark indicating its nationality and military character. 1

These rules are not binding, since they were never adopted by the powers concerned. They are, however, of strong persuasive authority; see above, pp. 3 5 1 -

352-

Appendix

651

VI Article 4

A public non-military aircraft employed for customs or police purposes shall carry papers evidencing the fact that it is exclusively employed in the public service. Such an aircraft shall bear an external mark indicating its nationality and its public non-military character.

Article 5 Public non-military aircraft other than those employed for customs or police purposes shall in time of war bear the same external marks, and for the purposes of these rules shall be treated on the same footing, as private aircraft.

Article 6 Aircraft not comprised in Articles 3 and 4 and deemed to be private aircraft shall carry such papers and bear such external marks as are required by the rules in force in their own country. These marks must indicate their nationality and character.

Article 7 The external marks required by the above articles shall be so affixed that they cannot be altered in flight. They shall be as large as is practicable and shall be visible from above, from below and from each side.

Article 8 The external marks, prescribed by the rules in force in each State, shall be notified promptly to all other Powers. Modifications adopted in time of peace of the rules prescribing external marks shall be notified to all other Powers before they are brought into force. Modifications of such rules adopted at the outbreak of war or during hostilities shall be notified by each Power as soon as possible to all other Powers and at latest when they are communicated to their own fighting forces.

Appendix

652

Article

VI

9

A belligerent non-military aircraft, whether public or private, may be converted into a military aircraft, provided that the conversion is effected within the jurisdiction of the belligerent State to which the aircraft belongs and not on the high seas.

Article

10

N o aircraft may possess more than one nationality.

CHAPTER GENERAL

II

PRINCIPLES

Article

11

Outside the jurisdiction of any State, belligerent or neutral, all aircraft shall have full freedom of passage through the air and of alighting.

Article

12

In time of war any State, whether belligerent or neutral, may forbid or regulate the entrance, movement or sojourn of aircraft within its jurisdiction. 2

CHAPTER

III

BELLIGERENTS

Article

13

Military aircraft are alone entitled to exercise belligerent rights. 3 2 I.e., irrespective of treaty obligations in time of peace. "General Report" of the Commission of Jurists at the Hague, Feb. 19, 1923, cited in Moore, "Rules of Warfare: Aircraft and Radio," International Law and Some Current Illusions, p. 232. " I.e., not privateers. Ibid., p. 234.

Appendix

655

VI Article

14

A military aircraft shall be under the command of a person duly commissioned or enlisted in the military service of the State; the crew must be exclusively military.

Article

15

Members of the crew of a military aircraft shall wear a fixed distinctive emblem of such character as to be recognizable at a distance in case they become separated from their aircraft.

Article

16

No aircraft other than a belligerent military aircraft shall engage in hostilities in any form. The term "hostilities" includes the transmission during flight4 of military intelligence for the immediate use of a belligerent. No private aircraft, when outside the jurisdiction of its own country, shall be armed in time of war.

Article

iy

The principles laid down in the Geneva Convention, 1906, and the Convention for the adaptation of the said Convention to Maritime War (No. X of 1907) shall apply to aerial warfare and to flying ambulances, as well as to the control over flying ambulances exercised by a belligerent commanding officer. In order to enjoy the protection and privileges allowed to mobile medical units by the Geneva Convention, 1906, flying ambulances must bear the distinctive emblem of the Red Cross in addition to the usual distinguishing marks. 4 "When the flight has been completed, the individual concerned will be within the jurisdiction of some State, and there the control of the transmission of information will be subject to the regulations of that State. It will not be affected by the provisions of this article." Ibid., pp. 235-236. Cf., with this article, Art. 6 (1). Hague Rules for the Control of Radio in T i m e of War, formulated by the same commission; above, p. 544, n. 46.

Appendix

654

VI

C H A P T E R IV HOSTILITIES

Article

18

The use of tracer, incendiary, or explosive projectiles by or against aircraft is not prohibited. This provision applies equally to States which are parties to the Declaration of St. Petersburg, 1868, and to those which are not.

Article

ip

The use of false external marks5 is forbidden.

Article

20

When an aircraft has been disabled, the occupants when endeavoring to escape by means of parachute must not be attacked in the course of their descent. Article

21

The use of aircraft for the purpose of disseminating propaganda shall not be treated as an illegitimate means of warfare. 6 Members of the crews of such aircraft must not be deprived of their rights as prisoners of war on the charge that they have committed such an act.

Article

22

Aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of a military character, or of injuring non-combatants is prohibited. 5 I.e., "marks of nationality or character." "General Report," above, Moore, op. cit., p. 239. ' "It does not follow that propaganda of all kinds is thereby validated. Incitements to murder or assassination will, for instance, still be considered illegitimate forms of propaganda." Ibid., pp. 239-840.

Appendix

VI

655 Article 25

Aerial bombardment for the purpose of enforcing compliance with requisitions in kind or payment of contributions in money is prohibited. Article 24 1) Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent. 2) Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots;7 factories constituting important and wellknown centres engaged in the manufacture of arms, ammunition, or distinctively military supplies; lines of communication or transportation used for military purposes. 3) The bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph 2 are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment. 4) In the immediate neighborhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings, or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population. 5) A belligerent State is liable to pay compensation for injuries to person or to property caused by the violation by any of its officers or forces of the provisions of this article. Article 25 In bombardment by aircraft all necessary steps must be taken by the commander to spare as far as possible buildings dedicated to ' " T h e word 'depots' is intended to cover all collections of supplies for military use which have passed into the possession of the military authorities and are ready for delivery to the forces. 'Distinctively military supplies' in the succeeding phrase is intended to cover those which by their nature show that they are certainly manufactured for military purposes." Ibid., p. 842.

Appendix

656

VI

public worship, art, science, or charitable purposes, historic monuments, hospital ships, hospitals, and other places where the sick and wounded are collected, provided such buildings, objects or places are not at the time used for military purposes. Such buildings, objects and places must by day be indicated by marks visible to aircraft. T h e use of marks to indicate other buildings, objects or places than those specified above is to be deemed an act of perfidy. T h e marks used as aforesaid shall be in the case of buildings protected under the Geneva Convention the red cross on a white ground, and in the case of other protected buildings a large rectangular panel divided diagonally into two pointed [iz'c] triangular portions, one black and the other white. A belligerent who desires to secure by night the protection for the hospitals and other privileged buildings above mentioned must take the necessary measures to render the special signs referred to sufficiently visible. 8 Article

26

T h e following special rules are adopted for the purpose of enabling States to obtain more efficient protection for important historic monuments 9 situated within their territory, provided, that they are willing to refrain from the use of such monuments and a surrounding zone for military purposes, and to accept a special régime for their inspection. 1) A State shall be entitled, if it sees fit, to establish a zone of protection round such monuments situated in its territory. Such zones shall in time of war enjoy immunity from bombardment. 2) T h e monuments round which a zone is established shall be notified to other Powers in peace time through the diplomatic channel; the notification shall also indicate the limits of the zones. 10 T h e notification may not be withdrawn in time of war. 3) T h e zone of protection may include, in addition to the area actually occupied by the monument or group of monuments, an outer 8

" B y night, however, the use of lights to make the special signs visible is optional,

because experience has shown that such lights may serve as guides to night-flying aircraft and thereby be of service to the enemy."

Ibid.,

p. 244.

' " T h e words 'historic m o n u m e n t ' in this article are used in a broad sense. T h e y cover all monuments w h i c h by reason of their great artistic value are historic today or will become historic in the future." 10

Ibid.,

p. 245.

"If no question is raised with regard to the monuments notified, other States

will be regarded as h a v i n g accepted the demand for the protection of

monuments

f r o m bombardment, and the i m m u n i t y will then rest on the basis of agreement."

Ibid., p. 246.

Appendix

VI

657

zone, not e x c e e d i n g 500 meters ference of the said area. 4) M a r k s clearly visible f r o m be e m p l o y e d for the purpose of ent airmen of the limits of the

in width, measured f r o m the circumaircraft either by day or by night w i l l ensuring the identification by belligerzones. 1 1

5) T h e marks on the m o n u m e n t s themselves w i l l be those defined in A r t i c l e 25. T h e marks employed for indicating, the surrounding zones will be fixed by each State adopting the provisions of this article, a n d w i l l be notified to other Powers at the same time as the monuments and zones are notified. 6) A n y abusive use of the marks indicating the zones referred to in p a r a g r a p h 5 w i l l be regarded as an act of perfidy. 7) A State a d o p t i n g the provisions of this article must abstain f r o m using the m o n u m e n t a n d the surrounding zone for military purposes, or for the benefit in any way whatever of its military organization, or from c o m m i t t i n g w i t h i n such m o n u m e n t or zone any act w i t h a military purpose in view. 8) A n inspection committee consisting of three neutral representatives accredited to the State a d o p t i n g the provisions of this article, or their delegates, shall be a p p o i n t e d for the purpose of ensuring that no violation is committed of the provisions of paragraph 7. O n e of the members of the committee of inspection shall be the representative (or his delegate) of the State to w h i c h has been entrusted the interests of the opposing belligerent.

Article

27

A n y person o n b o a r d a belligerent or neutral aircraft is to b e deemed a spy only if acting clandestinely or o n false pretences he obtains or seeks to obtain, w h i l e in the air, i n f o r m a t i o n w i t h i n belligerent jurisdiction or in the zone of operations of a belligerent w i t h the intention of c o m m u n i c a t i n g it to the hostile party.

Article

28

Acts of espionage committed after leaving the aircraft by members of the crew of an aircraft or by passengers transported by it are subject to the provisions of the L a n d W a r f a r e Regulations. 11 The mere absence of marks gives enemy aviators no right to bombard the zone in question "if it had been duly determined and notified." Loc. cit.

658

Appendix

VI

Article 29 Punishment of the acts of espionage referred to in Articles 27 and 28 is subject to Articles 30 and 31 of the Land Warfare Regulations. 12

CHAPTER V MILITARY AUTHORITY OVER ENEMY AND NEUTRAL AIRCRAFT AND PERSONS ON BOARD

Article 30 In case a belligerent commanding officer considers that the presence of aircraft is likely to prejudice the success of the operations in which he is engaged at the moment, he may prohibit the passing of neutral aircraft in the immediate vicinity of the forces or may oblige them to follow a particular route. 13 A neutral aircraft which does not conform to such directions, of which it has had notice issued by the belligerent commanding officer, may be fired upon.

Article

3/

In accordance with the principles of Article 53 of the Land Warfare Regulations, neutral private aircraft found upon entry in the enemy's jurisdiction by a belligerent occupying force may be requisitioned, subject to the payment of full compensation. 14

Article 32 Enemy public aircraft, other than those treated on the same footing as private aircraft, shall be subject to confiscation without prize proceedings. u I.e., a spy must not be punished without previous trial, and if he succeeds in rejoining his own army must not, on subsequent capture, be made responsible for his previous acts as a spy. "General Report," above, Moore, op. cit., p. 249. 13 "The present provision only authorizes a commanding officer to warn off aircraft during the duration of the operations in which he is engaged at the time." Ibid., p. 250. 11 "It is not unreasonable that neutral owners of property should receive payment for their property at once, as they are not concerned with the peace which will be ultimately concluded." Ibid., p. 251.

Appendix

VI

659

Article

33

Belligerent non-military aircraft, whether public or private, flying within the jurisdiction of their own State, are liable to be fired upon unless they make the nearest available landing on the approach of enemy military aircraft. Article

34

Belligerent non-military aircraft, whether public or private, are liable to be fired upon, if they fly (1) within the jurisdiction of the enemy, or (2) in the immediate vicinity thereof and outside the jurisdiction of their own State, or (3) in the immediate vicinity of the military operations of the enemy by land or sea. Article

35

Neutral aircraft flying within the jurisdiction of a belligerent, and warned of the approach of military aircraft of the opposing belligerent, must make the nearest available landing. Failure to do so exposes them to the risk of being fired upon. Article

6

W h e n an enemy military aircraft falls into the hands of a belligerent, the members of the crew and the passengers, if any, may be made prisoners of war. T h e same rule applies to the members of the crew and the passengers, if any, of an enemy public non-military aircraft, except that in the case of public non-military aircraft devoted exclusively to the transport of passengers, the passengers will be entitled to be released unless they are in the service of the enemy, or are enemy nationals fit for military service. If an enemy private aircraft falls into the hands of a belligerent, members of the crew who are enemy nationals or who are neutral nationals in the service of the enemy, may be made prisoners of war. Neutral members of the crew, who are not in the service of the enemy, are entitled to be released if they sign a written undertaking not to serve in any enemy aircraft while hostilities last. 16 Passengers are en"C/., Art. 5, Hague Conv. XI, 1907 (Relative to certain Restrictions on the Exercise of the Right of Capture in Maritime War), which states: "When an enemy merchant-ship is captured by a belligerent, such of its crew as are nationals of a

660

Appendix

VI

titled to be released unless they are in the service of the enemy or are enemy nationals fit for military service, in which cases they may be made prisoners of war. Release may in any case be delayed if the military interests of the belligerents so require. 16 T h e belligerent may hold as prisoners of war any member of the crew or any passenger whose service in a flight at the close of which he has been captured has been of special and active assistance to the enemy. T h e names of individuals released after giving a written undertaking in accordance with the third paragraph of this article will be notified to the opposing belligerent, who must not knowingly employ them in violation of their undertaking. Article

37

Members of the crew of a neutral aircraft which has been detained by a belligerent shall be released unconditionally, if they are neutral nationals and not in the service of the enemy. If they are enemy nationals or in the service of the enemy, they may be made prisoners of war. Passengers are entitled to be released unless they are in the service of the enemy or are enemy nationals fit for military service, in which cases they may be made prisoners of war. Release may in any case be delayed if the military interests of the belligerent so require. 17 T h e belligerent may hold as prisoners of war any member of the crew or any passenger whose service in a flight at the close of which he has been captured has been of special and active assistance to the enemy. neutral State are not made prisoners of war. T h e same rule applies in the case of the captain and officers, likewise nationals of a neutral State, if they give a formal promise in writing not to serve on an enemy ship while the war lasts." "It was adopted there only for the officers of a merchant vessel, because the officers are highly trained men. In the case of aircraft, it is reasonable to extend it to all the members of the crew." Ibid., p. 854. ™ "Immediate release of persons who cannot be made prisoners of war may not in all cases be feasible. T h e fact that military exigencies may necessitate a temporary delay in according release does not prejudice the right to such release in due course." Ibid., p. 255. Persons so detained, or because they are required as witnesses in prize-court proceedings, should not be confined or treated as prisoners unless there is good reason to believe they intend to flee. Spaight, Air Power and War Rights, p. 418; Oppenheim, II, 721. 17 Ibid.

Appendix

VI Article

38

Where under the provisions of Articles 36 and 37 it is provided that members of the crew or passengers may be made prisoners of war, it is to be understood that, if they are not members of the armed forces, they shall be entitled to treatment not less favorable than that accorded to prisoners of war. CHAPTER VI BELLIGERENT DUTIES TOWARDS N E U T R A L STATES AND N E U T R A L DUTIES TOWARDS BELLIGERENT STATES

Article Belligerent aircraft are bound to respect the rights of neutral Powers and to abstain within the jurisdiction of a neutral State from the commission of any act which it is the duty of that State to prevent. Article

40

Belligerent military aircraft are forbidden to enter the jurisdiction of a neutral State. Article

41

Aircraft on board vessels of war, including aircraft-carriers, shall be regarded as part of such vessels. Article

42

A neutral government must use the means at its disposal 18 to prevent the entry within its jurisdiction of belligerent military aircraft 1 9 and to compel them to alight if they have entered such jurisdiction. A neutral government shall use the means at its disposal to intern any belligerent military aircraft 20 which is within its jurisdiction after M Cf., Art. 25, Hague Conv. XIII, 1907. "General Report," above, Moore, op. cit., P- 25919 T h i s does not refer to aircraft in distress. " T h e prohibition in the article is aimed at those w h o enter in violation of the rights of the neutral State." Ibid,., P- 25920 Including its equipment and contents. Loc. cit. " T h e only exceptions to the obligation to intern an aircraft are those arising under articles 17 and 41." "General

Appendix

66?

VI

having alighted for any reason whatsoever, together with its crew and the passengers, if any. Article 43 The personnel of a disabled belligerent military aircraft rescued outside neutral waters and brought into the jurisdiction of a neutral State by a neutral military aircraft and there landed shall be interned.21 Article 44 The supply in any manner, directly or indirectly, by a neutral government to a belligerent Power of aircraft, parts of aircraft, or material, supplies or munitions required for aircraft is forbidden. Article 45 Subject to the provisions of Article 46, a neutral Power is not bound to prevent the export or transit on behalf of a belligerent of aircraft, parts of aircraft, or material, supplies or munitions for aircraft. 22 Article 46 A neutral government is bound to use the means at its disposal: 1) to prevent the departure from its jurisdiction of an aircraft in a condition to make a hostile attack against a belligerent Power, or carrying or accompanied by appliances or materials the mounting or utilisation of which would enable it to make a hostile attack, if there is reason to believe that such aircraft is destined for use against a belligerent Power. 2) to prevent the departure of an aircraft the crew of which includes any member of the combatant forces of a belligerent Power. 3) to prevent work upon an aircraft designed to prepare it to depart in contravention of the purpose of this article. On the departure by air of any aircraft despatched by persons or companies in neutral jurisdiction to the order of a belligerent Power, Report," above, Moore, op. cit., p. g6o. For the present-day position of medical aircraft over neutral territory, see Art. 37, Geneva Conv. I, 1949, and Art. 40, Geneva Conv. II, 1949, which are articles in similar terms; above, pp. 564 f. 21 Cf., Arts. 15 and 17, Geneva Conv. II, 1949. 23 Cf., Art. 7, Hague Conv. V. 1907; Art. 7, Hague Conv. XIII, 1907; above, pp. 548-549-

Appendix

VI

663

the neutral government must prescribe for such aircraft a route avoiding the neighbourhood of the military operations of the opposing belligerent, and must exact whatever guarantees may be required to ensure that the aircraft follows the route prescribed. Article

47

A neutral State is bound to take such steps as the means at its disposal permit to prevent within its jurisdiction aerial observation of the movements, operations or defences of one belligerent, with the intention of informing the other belligerent. This provision applies equally to a belligerent military aircraft on board a vessel of war. 23 Article

48

T h e action of a neutral Power in using force or other means at its disposal in the exercise of its rights or duties under these rules cannot be regarded as a hostile act.24 CHAPTER

VII

VISIT AND SEARCH, C A P T U R E AND

Article

CONDEMNATION

49

Private aircraft are liable to visit and search and to capture by belligerent military aircraft. Article

50

Belligerent military aircraft have the right to order public nonmilitary and private aircraft to alight in or proceed for visit and search to a suitable locality reasonably accessible.25 Refusal, after warning, to obey such orders to alight or to proceed " T h e general declaration of neutrality of the American republics, approved at Panama, Oct. 3, 1939, provides: "(f) . . . Belligerent military aircraft transported on board warships shall not leave these vessels while in the waters of the American republics." Hackworth, VII, 556. * Cf., Art. 10, Hague Conv. V, 1907; Art. 26, Hague Conv. XIII, 1907; above, pp. 536-£37* "If no place can be found which is reasonably convenient of access, the aircraft should be allowed to continue its flight." "General Report," above, Moore, op. cit., p. «71.

664

Appendix

VI

to such a locality for examination exposes an aircraft to the risk of being fired upon. 26 Article

51

Neutral public non-military aircraft, other than those which are to be treated as private aircraft, 27 are subject only to visit for the purpose of the verification of their papers. Article 52 Enemy private aircraft are liable to capture in all circumstances. Article A neutral private aircraft is liable to capture if it: a) resists the legitimate exercise of belligerent rights; 28 b) violates a prohibition of which it has had notice issued by a belligerent commanding officer under Article 30; c) is engaged in unneutral service;29 d) is armed in time of war when outside the jurisdiction of its own country; e) has no external marks or uses false marks; f) has no papers or insufficient or irregular papers; g) is manifestly out of line between the point of departure and the point of destination indicated in its papers and, after such enquiries as the belligerent may deem necessary, no good cause is shown for the deviation. The aircraft, together with its crew and passengers, if any, may be detained by the belligerent, pending such enquiries; h) carries, or itself constitutes, contraband of war; 30 26 " I t is essential to recognize the principle that force must only be employed to the extent which is reasonably necessary." Loc. cit. 27 With regard to state-owned aircraft used for commercial purposes, the commission of jurists stated: " T h e principle has already been recognized that such aircraft must be treated upon the same footing as private aircraft. Their subjection to the exercise of the right of visit and search and capture must, therefore, be assured." "General Report," Moore, op. cit., p. 272. 28 Mere flight, i.e., the act of fleeing, does not in itself give rise to a right to capture the aircraft. Ibid., pp. 272-273. 29 Cf., Arts. 45 and 46, of the Declaration of London, 1909; also Art. 16, second par., of the present rules. Ibid., p. 274. 30 " T h e term 'contraband of war," will bear the same meaning as it has in maritime warfare." Ibid., p. 275.

Appendix

VI

665

i) is engaged in breach of a blockade duly established and effectively maintained; 31 k) has been transferred from belligerent to neutral nationality at a date and in circumstances indicating an intention of evading the consequences to which an enemy aircraft, as such, is exposed. Provided that in each case, except (k), the ground for capture shall be an act carried out in the flight in which the neutral aircraft came into belligerent hands, i.e., since it left its point of departure and before it reached its point of destination. Article 54 T h e papers of a private aircraft will be regarded as insufficient or irregular if they do not establish the nationality of the aircraft and indicate the names and nationality of the crew and passengers, the points of departure and destination of the flight, together with particulars of the cargo and the conditions under which it is transported. T h e logs must also be included. Article 55 Capture of an aircraft or of goods on board an aircraft shall be made the subject of prize proceedings, in order that any neutral claim may be duly heard and determined. Article 56 A private aircraft captured upon the ground that it has no external marks or is using false marks, or that it is armed in time of war outside the jurisdiction of its own country, is liable to condemnation. A neutral private aircraft captured upon the ground that it has disregarded the direction of a belligerent commanding officer under Article 30 is liable to condemnation, unless it can justify its presence within the prohibited zone. In all other cases, the prize court in adjudicating upon any case of capture of an aircraft or its cargo, or of postal correspondence on board an aircraft, shall apply the same rules as would be applied to 81

The

reference here is to blockade in the maritime

sense (Chapter

I of

the

Declaration of L o n d o n , 1909). It w o u l d be necessary for the blockading belligerent "to render his blockade effective in the air space above the sea as well as o n surface itself."

Ibid,., p p .

875-276.

the

666

Appendix

VI

a merchant vessel or its cargo or to postal correspondence on board a merchant vessel. Article 57 Private aircraft which are found upon visit and search to be enemy aircraft may be destroyed if the belligerent commanding officer finds it necessary to do so, provided that all persons on board have first been placed in safety and all the papers of the aircraft have been preserved. Article 58 Private aircraft which are found upon visit and search to be neutral aircraft liable to condemnation upon the ground of unneutral service, or upon the ground that they have no external marks or are bearing false marks, may be destroyed, if sending them in for adjudication would be impossible or would imperil the safety of the belligerent aircraft or the success of the operations in which it is engaged. Apart from the cases mentioned above, a neutral private aircraft must not be destroyed except in the gravest military emergency, which would not justify the officer in command in releasing it or sending it in for adjudication. Article 59 Before a neutral private aircraft is destroyed, all persons on board must be placed in safety, and all the papers of the aircraft must be preserved. A captor who has destroyed a neutral private aircraft must bring the capture before the prize court, and must first establish that he was justified in destroying it under Article 58. If he fails to do this, parties interested in the aircraft or its cargo are entitled to compensation. If the capture is held to be invalid, though the act of destruction is held to have been justifiable, compensation must be paid to the parties interested in place of the restitution to which they would have been entitled. Article 60 Where a neutral private aircraft is captured on the ground that it is carrying contraband, the captor may demand the surrender of any

Appendix

VI

667

absolute contraband on board, or may proceed to the destruction of such absolute contraband, if sending in the aircraft for adjudication is impossible or would imperil the safety of the belligerent aircraft or the success of the operations in which it is engaged. After entering in the log book of the aircraft the delivery or destruction of the goods, and securing, in original or copy, the relevant papers of the aircraft, the captor must allow the neutral aircraft to continue its flight. T h e provisions of the second paragraph of Article 5g will apply where absolute contraband on board a neutral private aircraft is handed over or destroyed. C H A P T E R VIII DEFINITIONS

Article

61

T h e term "military" throughout these rules is to be read as referring to all branches of the forces, i.e., the land forces, the naval forces, and the air forces. Article

62

Except so far as special rules are here laid down, and except also so far as the provisions of Chapter V I I 3 2 of these Rules or international conventions indicate that maritime law and procedure are applicable, aircraft personnel engaged in hostilities come under the laws of war and neutrality applicable to land troops in virtue of the custom and practice of international law and of the various declarations and conventions to which the States concerned are parties. 33 " Chapter VII comprises Arts. 49-62. " " R e g a r d must be had to the last paragraphs of the Convention to which the Land Warfare Regulations are attached, that cases not provided for are not intended, for want of a written prohibition, to be left to the arbitrary judgment of military commanders. In all such cases the population and the belligerents are to remain under the protection of the rule of the principles of the law of nations, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience." "General Report," Moore, op. cit., p. 884. T h e reference is to the preamble of Hague Conv. IV, 1907.

CASES, TREATIES, A N D BIBLIOGRAPHY

LIST AND

OF C A S E S C I T E D FOOTNOTES

A., Re (1945), 606 A.B., Re (1945), 38 A.F., In re (1945), 238 T h e Abbaye Ardennes Case. See Trial of Meyer (1945) T h e Abeille No. 24 (1941), 298 Aboitiz and Co. v. Price (1951), 230 Administration of Waters and Forests v. Falk (1927), 288 Ahlbrecht, In re S.S. Member (1947), 254 Ahlbrecht (No. 2), In re (1949), 437 T h e Alabama Claims Arbitration (1872), 7, 549, 584 T h e Almelo Trial (Trial of Sandrock, et al-) (1945)' 328, 331 Altstoetter, et al.. United States v. See T h e Justice Case Amberger, Trial of. See T h e Dreierwalde Case T h e Ambrose Light, U.S. v. (1885), 19 Anastasio v. Ministero Dell'Industria E Del Commercio (1946), 607 Andersen v. Christensen and the State Committee for Small Allotments (1947). 3°o Andriange v. Algoret: Case of Delhaxhe (1944). 258 T h e Anglo-Mexican (1918), 577 T h e Anichab and Other Craft (1919), 298 Anne, et al. v. Ministère Public (1943), 238

IN

TEXT

Arnold, et al. v. Ellison, et al., Appellants (1928), 603 T h e Attiliô Regolo And Other Vessels (1945). 55 1 Auditeur Militaire v. Reinhardt, et al. (1923), 211 Auditeur Militaire v. Van Dieren (1919), 217 Auditeur-Général Près La Cour Militaire v. Muller, et al. (1949), 466 Awochi, Washio, Trial of (1946), 168 Aziz, Abdul, v. T h e Sooratee Bara Bazaar Co. Ltd. (1946), 606 Back, Trial of (1945), 487 T h e Baltica (1857), 577 Banco de Bilbao v. Sancha and Rey (1938), 620 Barratini, In re (1936), 595 Bauer, et al., Trial of (1945), 62, 219 Baus, Trial of (1947), 295 T h e Beaton Park (1946), 551 Becker, et al., Trial of (1947), 171, 471 Bellatato, Re (1946), 104 T h e Belsen Trial (Trial of Kramer, et a l ) (1945)> 242. 267, 465, 485-486, 510, 5" Beni-Madan Rzini Case (1924). See Spanish Zone of Morocco Claims (1924) Besednjak, In re (1948), 531 Best, et al., In re (1950), 489 Billeting of Troops Case (1950), 246

672 Bindels v. Administration des Finances (1946) and (1947), 215 Bommer, Trial of (1947), 293, 294, 487 Bottrill, Rex v.; Ex Parte Kuechenmeister (1947), 216 Bouquet and Co. (Amsterdam) v. Slom (Breskens) (1947), 272 The Brig Amy Warwick (1863), 17 British and Polish Trade Bank A.G. v. N.V. Handelmaatschappij Albert de Bary and Co. (1954), 218 Brocklebank Limited v. The King (1925), 594 Bruns, et al., Trial of (1946), 412 Buck, et al., Trial of (1946), 486, 504 Buhler, Trial of (1948), 215, 444, 476, 486 Burghoff, In re (1949), 416 Buxbaum, et al. v. Assicurazioni Generali (1942), 48 C„ Re (1942), 258 Canadian Criminal Law, Reference Re Exemption of United States Forces from (1942), 238 Capellani v. London and Lancashire Insurance Company, Ltd. (1947), 240 Cater v. Sutter (1955), 12 Chan Kam Chuen v. Leung Ho Wai Chun (1947), 606 Chemacid, S.A. v. Ferrotar Corporation (1943). 577 The Chevreau Claim (1931), 251 Chop Sun Cheong Loong, et al. v. Lian Teck Trading Co. (1947), 607 Chow Hung Ching v. The King (1948), 237 Chüichi, Tanaka, et al., Trial of (1946), 103 Chung Chi Cheung v. The King (1939), 237, 238 Chusaburo, Yamamoto, Trial of (1946), 484, 487 Cie D'Assurance La Nationale v. Veuve Cabanel (1946), 54 Cie des Chemins de Fer du Nord v. German State (1929), 297, 300 Cie Française pour l'Industrie v. Cie d'Assurance Le Phénix et L'Urbaine (1946), 54 Coenca Bros. v. Germany (1927), 340, 538 Colorni v. Ministry of War (1950), 291 The Commandant Émaille (1941), 298 Compagnie d'Assurance La Paix v. Mathelin et Société des Transports d'Énergie du Centre (1945), 54

List

of

Cases

Condarelli, Case of (1952), 258 The Cristina (1938), 551 The Cysne (1930), 583 The Dachau Concentration Camp Trial (Trial of Weiss, et al.) (1945), 132, 4 % 510 Daimler Company Ltd. v. Continental Tyre and Rubber Co., Ltd. (1916), 44 Dalldorf, et al. v. Director of Prosecutions (1949), 217 D'Escury v. Levensverzekerings-Maatschappij Utrecht, Ltd. (1948), 264 De Nimal v. De Nimal (1919), 218, 264 Delville v. Servais (1945), 300, 607 Denmark (Collaboration with the Enemy) Case (1947), 595 Dominic v. Public Prosecutor (1947), 265 Dooply v. Chan Taik (1950), 230 The Dostler Case (1945), 132 Dover Castle, The Case of the (Case of Neumann) (1921), 440, 441, 495 The Dreierwalde Case (Case of Arnberg«) (1946), 103, 135 Dudley and Stephens, Rex v. (1884), 500 Egyptian Delta Rice Mills Co. v. Comisaria General de Abastecimientos Y Transportes de Madrid (1943), 551 Egyptian Government v. Palestine State Railways Administration (1942), 551 The Einsatzgruppen Case (United States v. Ohlendorf, et al.) (1947), 8, 197, 267, 413, 427, 501 Eisenträger (alias Ehrhardt), et al., Trial ° f ('947). 396. 5°° Eisner v. U.S. (1954), 230 The Eliza Ann (1813), 38 Ellin Anak Masing v. The King (1948), 606 Emin Bey, Ahmed, v. Great Britain (1927), 589 Endricci v. Eisenmayer (1946), 258 Engelen v. Belgian State (1949), 243 Enkelstroth, In re (1948), 466 Esau, Trial of (1949), 296 The Essen Lynching Case (Trial of Heyer, et al.) (1945), 103 État Français v. Établissements Monmousseau (1948), 288 The Falkenhorst Trial (Trial of von Falkenhorst) (1946), 54, 409, 441, 490, 493. 494 The Farben Case (United States v.

List

of

Cases

Krauch, et al.) (1948), 294, 295, 427, 45°. 453. 46o. 489. 497. 498. 499. 500 Farrugia v. Nuova Compagnia Generale Autolinee (1950), 259 Fernandez v. Howard (1955), 295 Ferrovie dello Stato v. S.A.G.A. (1946), 218 Fischer and Leist, T r i a l of (1947), 476 T h e Fjeld (1950), 38 T h e Flick Case (United States v. Flick, et al.) (1947), 119, 427, 432, 460-461, 470, 474, 475, 486, 488, 496-497. 499500, 511 Flick v. Johnson (1949), 426, 430 France, Government of, v. IsbrandtsenMoller Co., Inc. (1943), 48 T h e Fred Neumann (1946), 298 Friess and Ronnenberger, In re (1947), 255 Fuerstein, et al., T r i a l of (1948), 500 Fullriede, et al. (Putten Reprisals Trial), In re (1949), 461, 494 G., In re (1945), 606 Gallant v. West (1955), 240 Gatti, Giovanni, In re (1947), 595 Geering, R e x v. (1849), 485 T h e General Armstrong (1852), 538 General Devastation (Germany) Case (1947). 453 Genocide, Reservations to the Convention on, Advisory Opinion of International Court of Justice (1951), 198, •99 Gerbsch, T r i a l of (1948), 267, 487 German Interests in Polish U p p e r Silesia, Case concerning certain (1926), 386 German Military Courts in Greece Case (1945), 606 Gilbert (Admiral Ingram C a m p Case), In Re, 238 Giovannini v. Renzi (1947), 301 Glenroy, M.V., Part Cargo Ex, H.M. Procurator-General v. M.C. Spencer, Controller of Mitsui and Co., Ltd. (1945). 577 Goeth, T r i a l of (1946), 197, 200 Goldenberg et Fils v. Germany (1928), 302 T h e Goulfar II (1940), 298 Gounaris v. Ministère Public (1943), 238 Graff, et al., In re (1950), 474 Grahame v. T h e Director of Prosecutions (1947), 216 T h e " G r a t i t u d i n e " (1801), 499 Gross-Brauckmann, In re (1948), 333

673 Greifelt, et al., United States v. See T h e R u S H A Case Greiser, T r i a l of (1946), 21, 168, 200, 444, 450, 451, 471, 492 Griswold v. Waddington (1819), 44 Guebali v. Colonel Mei (1943), 240 Guilmain et Arcos v. Office des Séquestres (1948), 280 Haaland, Reidar, Public Prosecutor

v.

(1945). 217 T h e Hadamar T r i a l (Trial of Klein, et al ) (1945). 14. 242 Hagenbach, Sir Peter of (1474), 4 Hagendorf, T r i a l of (1946), 83, 321 Hangobl, Josef, T r i a l of (1945), 318 Hans, T r i a l of (1947), 504 Harding v. Pennsylvania Mutual L i f e Insurance Co. (1952), 25 Hardman, William, Case of (1913), 577 Hatada, Minoru, T r i a l of (194?), 397 Haw Pia v. China Banking Corp. (1948), 230 Heering, T r i a l of (1946), 107 Heinemann, In R e (1946), 267 Hénon v. Egyptian Government and British Admiralty (1947), 240 Herder, von, v. Public Prosecutor (1946), 544 Herwyn v. Muller (1922), 218 Heyer, et al., T r i a l of. See T h e Essen Lynching Case T h e High Command Case (United States v. von Leeb, et al.) (1948), 4, 15, 17, 42, 101, 119, 120, 279, 280, 350, 417, 427, 442, 450-451, 452, 453, 463, 480, 483, 491, 492-493, 494, 497-498, 505 Hinrichsen, In re (1950), 300 Hirota, Koki, et al. v. Douglas MacArthur (1948), 430 Hirshberg v. Malanaphy, United States Ex. Rei. (1947), 104 Hoess, T r i a l of (1947), 170, 200 Hoffmann, In re (1948), 466 Holder v. Ministère Public (1944), 237 Holdowanski v. Holdowanski (1956), 254 Holstein, et al., T r i a l of (1947), 415 Holzer, et al., T r i a l of (1946), 500 Hong-Kong and Shanghai Banking Corporation v. Luis Perez-Samanillo, Inc. and Register of Deeds of Manila (1946), 607 Hoogeveen, et al., R e (1944), 217 T h e Hostage Case (United States v. List, et al.) (1948), 214, 215, 280, 286, 414 f., 427, 440, 482, 483, 486, 487, 495

List of Cases

674 Imamura, Kazuhiko, T r i a l of (1947), 120 T h e Indian Chief (1801), 577 Israel, Attorney-General for, v. Sylvester (1949), 820 J.W., Mrs., v. Republic of Latvia (1953), (1955). 551 T h e Jaluit Atoll Case (Trial of Masuda, et al.) (1945), 103 Janson v. Dreifontein Consolidated Mines Ltd. (1902), 44 Jepsen, et al., T r i a l of (1946), 500 Johansen v. Gross (1948), 297 T h e John (1856), 600 Josephberg, et al. v. Markham, Alien Property Custodian (1945), 576 T h e Julia (1814), 44 Juragua Iron Company, Ltd. v. U.S. (1909), 280, 576, 579, 580 T h e Justice Case (United States v. Altstoetter, et al.) (1947), 4, 13, 197, 199, 216, 241, 242, 245, 250, 330, 427, 437, 43 8 . 439- 453. 462-463, 466, 474, 476, 485. 5°4. 505. 5°6 Kaehler and Stolski, R e x v. (1945), 136 Kandiliotes v. T h e Commonwealth, et al. (1945). See Polites v. T h e Commonwealth, et al. Kappler, Case of (1952), 133, 134, 410, 411 Karmatzucas v. Germany (1926), 302 Katsuno, Mizuo, T r i a l of (1947), 397 Kauhlen Case (1920), 218, 254 Kawato, Kumezo, E x parte (1943), 47, 186 Kent Jewelry Co. v. Kiefer (1952), 213 Kesselring, T r i a l of (1947), 412 Kessler v. Watkins, United States E x Rel. (1947), 216 Killinger, et al., T r i a l of (1945), 105 Kiriadolou v. Germany (1930), 340 Kniest, In re (1949), 466 K o M a u n g T i n v. U Gon Man (1947), 230 Korber, Case of (1946), 135 Koshiro, T a n a b e , T r i a l of (1947), i n , 118 Köster v. Banco Minero de Bolivia (1954), 551 Kostoris v. Meinl (1949), 301, 302 Kotra, et al. v. Czechoslovakia (1934), 263 Krauch, et al., United States v. See T h e Farben Case Krebs, R e x v. (1943), 136

T h e K r u p p Case (United States v. K r u p p , et al.) (1948), 101, 279, 294, 296, 427, 448, 466, 488, 489, 496, 497, 498499. 5 0 1 L.

v. N. (Bulgarian Occupation of Greece) (1947), 258 L . v. N . (Olive O i l Case) (1948), 606 L . M . v. Swiss Banks (1948), 305 Lages, In re (1950), 466 L a n d w e h r v. Director of Prosecutions (1950), 256 Latza, et al., T r i a l of (1948), 265, 504 L a w 900 of 1943, In re (1944), 606 Lecoq, et al., In re (1944), 246 Lederer v. K a h n (1943), 48 Leeb, von, et al., United States v. See T h e H i g h C o m m a n d Case Lewinski, von (called von Manstein), In re ('949). »'9. 272, 280, 416, 444, 480, 482 L e x , T r i a l of (1946), 471 T h e Lhasa (1941), 298 Lian, Public Prosecutor v. (1945), 218 Liebehenschel, et al., T r i a l of (1947), 472-473, 476 Lingenfelder, T r i a l of (1947), 289 Lippert, In re (1950), 466 List, et al., United States v. See T h e Hostage Case Liwanag v. Hamill (1956), 238 Llandovery Castle, T h e Case of the (Case of Dithmar and Boldt) (1921), 16, 441, 498 L o Dolce, In R e (1952), 255 Lorenzo v. Gobierno (1941), 583 Lotus, S.S., T h e Case of the (1927), 13, 429 Lusitania Cases (1923), 597 Mackensen, von, and Maelzer, T r i a l of (1945). 412 Mackensen, Willi, T r i a l of (1946), 107 Madsen v. Kinsella (1950), (1951), (1952), 256 Makin v. Att.-Gen. for New South Wales (1894), 485 Makizawa, Yoshio, T r i a l of (1946), 105 Maltoni v. Companini (1947), 301, 302 Manstein, von, In re (1949). See Lewinski, von Manuel v. Ministère Public (1943), 237, 238 Masao, Baba, Lt. Gen., T r i a l of (1947), 478

List of Cases Masuda, et al., Trial of. See T h e Jaluit Atoll Case Maung Hmin, et al., T h e King v. (1946), 606 Maung Hli Maung v. Ko Maung Maung (1946), 244 Mazzoni v. Finanze dello Stato (1927), 308 T h e Mauthausen Concentration Camp Case (1946), 469 T h e Medical Case (United States v. Brandt, et al.) (1947), 74, 103, 170, 427. 475. 481-482, 494 T h e Mentor (1799), 600 Mexico, Republic of, v. Hoffman (1945), 551 Meyer, Trial of (The Abbaye Ardennes Case) (1945), 5 1 1 T h e Milch Case (United States v. Milch) (1947)> '35- 160, 268-269, 427, 463, 477, 481, 485, 495 Ministero Della Marina v. Commercial Bank of Greece, et al. (The Attiki) (1943). 578 Ministero Della Marina v. Montagu (The Ljubica) (1943), 298 Ministero Della Marina v. P. Uljott, et al. (The Wawa) (1943), 298 Ministre de la Marine v. Cie FrancoTunisienne d'Armement (1946), 583 T h e Ministries Case (United States v. von Weizsaecker, et al.) (1949), 427, 446, 452, 453, 470 Moehle, Trial of (1946), 490 Mortier v. Lauret (1947), 300 Motomura, et al., Trial of (1947), 171, 494 Motosuke, Susuki, Trial of (1948), 250 N. v. Belgian State and Officier de l'État Civil of the Commune of Uccie (1949), 254 Nai, Case of (1947), 242 T h e Natzweiler Trial (Trial of Zeuss, et al., including Rohde) (1946), 504, 510 Nederlands Beheersinstituut v. Robaver [Rotterdamsche Bank, Ltd.] (1947), (1948), (1950), 13, 218 New York Life Insurance Co. v. Bennion (1946), 38 Netherlands, State of, v. Federal Reserve Bank of New York (1951), (1953), 218 Neubacher, Re (1949), 414, 416 Nicolo v. Creni (1952), 259

675 T h e "Nigretia" (1905), 559 T h e Nuremberg Trial and Judgment (Trial of Goring, et al.) (1946), 3, 6, 7, 8, 14, 15, 21, 22, 38, 40, 42, 69, 95, 136, 155. 197. 202, 215 f., 242, 245, 279, 304. 354» 357. 416, 420, 421, 422, 423445, 446, 448, 449, 454-457, 460, 4 6 1 462, 464, 465, 468, 471, 472, 473-474. 475, 476, 482-483, 485. 487. 492, 495498, 505 f., 5 1 1 , 518, 539, 601 Occupation of Cavalla Case (1930), 218 Occupation of Germany Case (Zurich) (1945), 216 Occupation Tribunals Case (1949), 244 Oenning and Nix, Trial of (1945), 487 Ohlendorf, et al., United States v. See The Einsatzgruppen Case Onori v. State of Hungary (1953), 551 Oriental Navigation Co. (1928), 19 Otozoo, et al., Trial of (1949), 358 Ottoman Debt Arbitration (1925), 215 0verland's Case (1943), 241 P. v. A.G. K. and P. (1948), 291 P. (Batavia), Mr., v. Mrs. S. (Bandoeng) (1947), 262 P. (Komotini Case), In re (1948), 243 "Parfums Tosca" v. Peschaud and the Public Prosecutor (1929), 576, 577 T h e Parlement Belge (1880), 444 Passi v. Sonzogno (1953), 259 Peeterbroek v. Assurances Générales de Paris (1946), 54 T h e Peleus Trial (Trial of Eck, et al.) (1945). H> 44. 430. 431. 44°. 44 1 T h e Pellworm (1922), 538 Pelly and Another, U.S.A. v. (1899), 37, 38 Pericleos v. Ministère Public (1944), 237 Petersdorff, von, v. Insurance Co. of North America (1944), 48 Pinson, Georges, Case (1928), 620 Plessa, Polyxène, v. Turkey (1928), 592, 597 T h e Pohl Case (United States v. Pohl, et al.) (1947), 197, 273, 426, 427, 475. 482 Polites v. T h e Commonwealth, et al.; Kandiliotes v. T h e Commonwealth, et al. (1945), 574 Porter v. Freudenberg (1915), 47, 48 Posselt v. D'Espard (1917), 47 T h e Primavera (1916), 298 Prisoners of War (Brest-Litovsk) Case (1921), 614

676 Prudential Assurance Co. Ltd. v. Woermann Linie A.G. and Deutsche OstAfrika Linie (1947), 533 Quirin, et al., Ex parte (The Case of the German Saboteurs) (1942), 7, 15, 477. 508 The Ramava (1941), 551 The Rapid (1814), 44 Rauer, Karl, Major, et al., Trial of (1946), 481 Rauter, Trial of (or In re Rauter) (1949), 48, 13s, 265, 266, 267, 393, 407, 411, 413, 414, 416, 431 Remmele, Josef, Trial of (1947), 14 Requisition of Private Property (Austria) Case (1949), 246 Rice, United States v. (1819), 606 Rieger, Karl (1948), 329 The Roechling Case (1948), (1949), 294, 456-457. 4 8 3. 497. 5°2 Rohde, et al., Trial of, (1946). See The Natzweiler Trial Rosenberg v. Fischer (1948), 305 The Rühen Baby Home Trial (Trial of Tyrolt, et al.) (1946), 242, 267, 484-485 The RuSHA Case (United States v. Greifelt, et al.) (1948), 168, 197, 200, 270, 427, 466 Russian Trade Delegation v. Société Française Industrielle et Commerciale des Petroles (Group Malopolska) (1940). 551 Rust, Trial of (1948), 300 S., In re (1944), 607 S.A.C.A. v. Lazzi and the Ministry of the Interior (1948), 243 SFNR v. Vogt and Raab-Karcher (1951), 297 Saki, Takashi, Trial of (1946), 451, 478 The Salmonpool (1940), 298 Sar-ris v. Ahmed Ubed (1950), 259 Sawada, et al., Trial of (1946), 462, 502, 5°4 Schaffenius v. Goldberg (1916), 186 Schiffahrt-Treuhand v. Procurator-General (1953). 298 Schmid, Max, Trial of (1947), 76, 77 Schillings v. Administration des Finances (1948), 261 The Schooner Exchange v. M'Faddon, et al. (1812), 237, 239, 442-443. 444 Schwind v. Belgian State (1948), 261

List

of

Cases

The Scuttled U-Boats Case (Trial of Grumpelt) (1946), 396 Secret v. Loizel (1945), 301, 607 Shipbuilding Yard "Gusto," In re (1947), 272 Shuichi, Rondo, In re (1946), 172 Siebers, In re (1950), 99 "Silbertanne" Murders, In re (1946), 416 Sinigar, United States v. (1955), 238 Skorzeny, et al., Trial of (1947), 321 Slubicki v. Commissioners of Police of the Canton of Berne (1942), 555 Smulders and Piccinati v. Société Anonyme "La Royale Belge" (1943), 54 Société Commerciale d'Oriente v. Turkey (No. 2) (1929), 38, 44 Société des Nouvelles Vedettes de Dinard v. Administration des Douanes (1944), 229 Solazzi and Pace, Case of (1953), 259 Soubrouillard v. Kilbourg (1948), 302 Spanish Zone of Morocco Claims (1924), 280 Spielmann v. Ministère Public and Barbier (1940), 48 Steane, Rex v. (1947), 500 Stephens, Rex v. (1866), 477 The Stigstad (1919), 583 Stratton's Case (1779), 496 Stucher, Trial of (1947), 468 Sutherland, Mary, Duchess of, deceased, In re; Bechoff and Co. v. Bubna (1915), 47. 577 Tanfani v. Carletti (1949), 301, 302 Telkes v. Hungarian National Museum (No. 11) (1942), 48 Territo, In re (1946), 99 The Thetis (1801), 590 Thiele and Steinert, Trial of (1945), 104 Thrace (Notarial Services) Case (1949), 243 The Three Friends (1897), 19, 620 The Tokyo Trial and Judgment (Trial of Araki, et al.) (1948), 6, 37, 38, 42, 68, 102, 132, 172, 424-425. 43°. 43 1 . 432. 434. 445. 446, 449. 450. 452. 453455. 456, 47 6 . 47 g . 480, 481, 482, 483. 486, 487, 489, 509, 510, 511, 532, 594 Torres, Ignazio, v. The United States (1868), 590, 591 Triandafilou, Ministère Public v. (1942), 238 Triborgh (Tilburg) v. State of the Netherlands (1949), 230

List

of

Cases

Tsoukharis, Ministère Public v. (1943), 238 U San Wa v. U Ba Thin (1947), 606 Uchiyama, Kishio, and Mitsugu Fukuda, Trial of (1947), 107, 117 Ulen and Co. v. Bank Gospodarstwa Krajowego (National Economic Bank) (1940), 444, 551 Union Bridge Company Case (1924), 578 United States Military Government v. Goldner (1949), 256 V / O Sovfracht v. N.V. Gebr. Van Udens Scheepvaart en Agentuur Maatschappij (1943), 48, 576-577 Van Der Giessen, In re (1948), 290 Van Hoeve De Feyter v. Fire Insurance Company of 1859 Ltd. (1947), 54 Van Huis, In re (1946), 264 Van Kampen, In re (1947), 607 Vandyke v. Adams (1942), 576 The Velpke Baby Home Trial (Trial of Gerike, et al.) (1946), 168, 242, 267, 466, 468, 483-484 Victoria Nyanza, In the matter of certain craft captured on the (1919), 297-298 Vollema, In re Policeman (1947), 607 W . . . et M . . . v. L'État (1920), 388 Wagner, Albert, Trial of (1946), 187 Wagner, Robert, Trial of (1946), 132, 215, 241, 502 War Services Law (Czechoslovakia) Case (1928), 242 Watson v. R.C.A. Victor Co., Inc. (1934), 550 Weiman, U.S. v. (1953), 237 Weizsaecker, von, et al., United States v. (1949). See The Ministries Case

677 Weiss and Mundo, Trial of (1945), 103, 487 Weiss, et al., Trial of (1945). See The Dachau Concentration Camp Trial Weissman v. Metropolitan Life Insurance Company (1953), 25, 38 Werner and Another, Rex v. (1947), 115 White, J. G., Engineering Corp., et al. v. Canadian Car and Foundry Co. (1940), 577 Wielen, et al., Trial of (1947), 486, 510 Wilson, Secretary of Defense, et al. v. Girard (1957), 239 Worp, In re Contractor (1946), 271 Wright v. Cantrell (1943), 237, 238, 239, 240 X v. Cie d'Assurance Z (1945), 54 X., In re (1920), 244 X., Public Prosecutor v. (1940), 212, 254 X (Eastern Java), Public Prosecutor v. (1948), 212 X.Y., Re. (1945), 218 Yamamoto, Shoichi, et al., Trial of (1946), 107 Yamashita, Trial of, and In re (or Application of), (1945), (1946), 7, 16, 132, 140, 477, 478 f., 593 Young v. United States (1878), 576, 578579 Zabrovsky (Eliezer) v. General Officer Commanding Palestine, Representing the Commander-in-Chief, Middle East (1945), 244 The Zamora (1916), 582 Zuelke, Trial of (or In re Zuhlke) (1948), 38, 48, 168, 440, 453, 493 The Zyklon B Case (Trial of Tesch, et al.) (1946), 464

L I S T OF T R E A T I E S C I T E D IN T E X T A N D F O O T N O T E S

Agreement for the Establishment of an International Military Tribunal, London, 1945: 423, 425, 430, 503 Anti-War Treaty of Non-Aggression and Conciliation [the Saavedra Lamas Treaty], Rio de Janeiro, 1933: 17, 515, 519 f., 530, 531, 532. Arts. 1: 519; 2: 519, 598; 3: 520; 17: 520 Berlin Declaration (Regarding the Defeat of Germany), 1945: 216, 396 Berlin, Treaty of, 1921: 356, 604 Brest-Litovsk, Peace Treaty of, 1918: 604 Convention Concerning the Status of Aliens, Habana, 1928. Arts. 3: 573; 4: 573 Convention for the Protection of H u m a n Rights and Fundamental Freedoms, Rome, 1950. Arts. 2: 248; 3: 170; 4 (1): 168; 7 (1): 247; 7 (2): 247, 467; 15: 170, 247 Conventions for the Definition of Aggression [U. S. S. R.], 1933. Arts. I I : 446; I I (5): 458 Convention on International Civil Aviation, Chicago, 1944. Arts. 1: 535; 2: 535 Convention on Limitation of Armaments of Central American States, Washington, 1923. Art. V: 356 Convention on Maritime Neutrality, Habana, 1928. Art. 22: 537 Convention on Private International Law, Habana, 1928, with annexed Code of Private International Law (Bustamente Code): 238 Convention on Relations between the Three Powers and the Federal Republic of Germany, Bonn, 1952: 405, 588. Arts. 8: 589; 11: 589 Convention on the Duties and Rights of States in the Event of Civil Strife, Habana, 1928. Art. 1: 626 Convention on the Settlement of Matters Arising out of the War and the Occupation, Bonn, 1952: 405, 589 Convention to Coordinate, Extend and Assure the Fulfillment of the Existing Treaties between the American States, Buenos Aires, 1936: 447. Art. 6: 521 Declaration of Lima, 1938: 521 Declaration of London, 1909. Chap. I : 665. Arts. 23: 548; 25: 548; 27: 548; 45: 664; 46 : 664 Declaration of Panama, 1939: 521 Declaration of St. Petersburg, 1868 (Renouncing the Use, in Time of War, of

List of

Treaties

679

Explosive Projectiles under 400 Grammes Weight): 315, 353, 354, 355, 360, 361, 372, 654 Declaration on the Suez Canal by Egypt, 1957: 529 Final Act of the Second International Peace Conference, T h e Hague, 1907: 352, 547, 572 Final Act of the Diplomatic Conference of Geneva, 1949: 22 General Declaration of Neutrality of the American Republics, Panama, 1939 (in Final Act of the Consultative Meeting of Foreign Ministers of the American Republics): 521, 663 Geneva Convention, 1864 (For the Amelioration of the Condition of Soldiers Wounded in Armies in the Field): 23, 67 Geneva Convention, 1906 (For the Amelioration of the Condition of the Wounded and Sick in Armies in the Field): 23, 67, 653, 656 Geneva Conventions, 1929: 5, 23 Geneva Conventions for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 1929: 67. Arts. 1: 73, 74, 569; 4: 77; 5: 75; 8: 84; 12: 78, 80; 13: 78; 14: 85, 86; 15: 85; 17: 86, 88; 18: 87; 22: 89; 23: 90; 25 : 68; 26: 480; 28: 94 Geneva Convention Relative to the Treatment of Prisoners of War, 1929: 96. Arts. 1: 101; 2: 409; 6: 281; 7: 107; 9: 111; 11: 112; 18: 116; 22: 117; 23: 122; 27: 120; 31: 119; 34: 123; 43: 130; 44: 130; 47: 139; 55: 134; 60: 140; 63: 132; 75: 609f.; 76: 149; 77: 324; 96: 97 Geneva Conventions, 1949 (For the Protection of War Victims): 5, 18, 22-23, 524, 532, 611, 621. Arts. 2: 38, 45, 68, 97, 157, 160, 217, 531; 3: 20, 31, 621 f. Geneva Convention I, 1949 (For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field): 67 f., 366. Arts. 1: 68; 2: 68 [See also under Geneva Conventions, 1949]; 3: see under Geneva Conventions, 1949; 4: 69, 161, 567, 568, 569; 5: 70; 6: 70, 101, 160, 379, 568; 7: 70; 8: 71, 525; 9: 71, 161; 10: 70, 72, 161; 11: 72, 161, 406; 12: 74, 99, 161, 569; 13: 55, 56, 73, 99, 161; 13 (1): 58; 13 (2): 58, 60; 13 (3): 58; 13 (6): 62; 14: 55, 56, 69, 74, 99; 15: 70, 75, 76; 16: 75, 76, 282; 17: 77, 149; 18: 75; 19: 82, 341, 342; 20 : 82, 341; 21: 74, 83, 341; 22: 84, 341; 22 (1): 57; 23 : 70, 84-85, 162, 285, 342, 347, 631; 24: 77, 78, 79, 100; 25: 80; 26: 78, 79, 90, 100; 27 : 81, 89, 546; 28: 57, 70, 78, 79, 100, 114, 568; 29: 80; 30: 57, 78, 79, 100, 568; 31: 70, 79, 100; 32: 81, 568; 33: 85; 34 : 86; 35 : 86; 36 : 70, 87, 165; 37 : 70, 525, 564-565, 566, 567, 662; 38: 88, 321: 39: 88, 321; 40: 89, 321; 41: 89, 321; 42 : 90, 321, 346; 43 : 90, 321; 44: 91, 321; 45 : 92; 46: 92, 409; 47 : 92; 48: 92; 49: 14, 15, 93, 152, 153, 195, 196, 403, 465, 468, 503, 504, 595, 624; 50: 15, 93, 153, 196, 403, 404, 465, 468, 624; 51: 94, 153, 196, 404, 592, 595; 52 : 70, 94, 403; 53: 94; 54 : 94; 59: 67; 62: 67; 63 : 69. Annex I: 85, 342, 631 f. Geneva Convention II, 1949 (For the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea). Arts. 2: see under Geneva Conventions, 1949; 3: see under Geneva Conventions, 1949; 4: 70, 568; 5: 568; 6 : 379, 568; 8: 525; 11: 406; 12: 72; 13: 55, 56, 70, 73, 99; 13 (1): 58; 13 (2): 58, 60; 13 (3): 58; 13 (6): 62; 14: 69; 15: 566-567, 662; 16: 55, 56, 69; 17: 566-567, 569, 662; 18: 75; 20: 77; 22: 81, 82, 91, 341; 23: 83, 341; 24: 83, 91, 341; 25: 83, 91, 341, 546; 26: 83, 341; 27: 83, 91, 341; 29: 82; 34: 83, 341; 35: 83, 341; 35 (1): 57; 36: 70, 81; 37: 70, 81; 39: 87; 40 : 525, 566, 662; 43: 91; 44 : 91, 92; 45 : 92; 47 : 92, 409; 50: 92, 465, 503, 595; 51: 92, 404, 465; 52: 92, 404, 592, 595; 53: 92, 403; 61: 67 Geneva Convention III, 1949 (Relative to the Treatment of Prisoners of War): 26, 95 f. Arts. 1: 97; 2: 97 [See also under Geneva Conventions, 1949]; 3: see under Geneva Conventions, 1949; 4: 55, 61, 266, 395, 565; 4A: 56, 73, 98; 4A (1): 58; 4A (2): 58, 60, 417; 4A (3): 58, 627; 4A (4): 57, 556; 4A (5): 556; 4A (6): 62; 4B (1): 63, 99, 101-102; 4B (2): 99, 525, 529, 530, 555-556, 558, 560, 574; 4C: 78, 79, 100; 5: 64, 101, 133, 614; 6: 101, 116, 379, 557, 610; 7: 101, 104;

68o

List of

Treaties

8: 102, 525; 9: 102; 10: 102; 11: 102, 406; 12: 102; 13: 74, 103, 317, 409, 413, 613; 14: 104; 15: 104; 16: 105; 17: 105, 149, 150, 613; 18: 106, 121; 19: 107; 20: 107; 21: 108-109, 559, 560; 22: 111, 559; 23: 111, 559; 24: 111, 559; 25: 112, 137, 559; 26: 112, 117; 27: 112, 117; 28: 113, 117, 123, 130; 29: 113, 137; 30: 113; 31: 114; 32: 114; 33: 57, 79, 100, 114; 34: 114; 35: 79, 114, 115; 36: 115; 37: 115; 38: 115, 559; 39: 116; 40: 116; 41: 116; 42: 104, 116, 135; 43: 116; 44: 117; 45: 117; 46: 117; 47: 118; 48: 118, 130; 49: 114, 118; 50: 119; 51: 119; 52: 119; 53: 120; 54: 120, 123, 125; 55: 120; 56: 121; 57: 121, 123, 130; 58: 121; 59: 122; 60: 78, 122, 134; 61: 78, 123; 62: 78, 123, 130, 134; 63: 124, 125; 64: 106, 122, 123, 124; 65: 124, 130; 66: 125; 67: 125; 68: 125; 69: 126; 70: 126, 128; 71: 127, 128, 129, 131; 72: 127, 128; 73: 127, 130, 635; 74: 127, 151; 75: 128; 76: 129; 77: 104, 128, 129, 130; 78: 129, 130, 138, 142; 79: 130, 131; 80: 130; 81: 130, 131; 82: 132, 133; 83: 132, 136; 84: 132, 502; 85: 109, 133, 140, 502; 86: 133; 87: 134, 138, 139, 142, 409, 489; 88: 134; 89: 134; 90: 135; 91: 135, 558; 92: 134, 135, 558; 93: 135, 137; 94: 137; 95: 137; 96: 130, 137; 97: 137, 138, 139; 98: 130, 137, 138, 139; 99: 138; 100: 139; 101: 139; 102: 139; 103: 139; 104: 130, 140; 105 : 93, 141, 153, 196, 506; 106: 141; 107: 130, 139, 141; 108: 142; 109: 143, 570; 110: 143, 570, 638; 111: 143, 570; 112: 131, 144, 570, 644; 113: 130, 144, 570, 645; 114: 144, 570; 115: 144, 570; 116: 144, 570; 117: 144, 570; 118: 145, 147, 609 f.; 119: 145, 147, 609 f.; 120: 149; 121: 150; 122: 75, 128, 147, 151, 282, 324, 570; 123: 75, 120, 125, 128, 151; 124: 151; 125: 152; 126: 130, 138, 142, 152; 127: 152; 128: 152; 129: 103, 153, 465, 503, 595; 130: 103, 104, 153, 404, 465; 131: 153, 404, 592, 595; 132: 153, 403, 525; 134: 96; 135: 96; 141: 96; 142: 96, 97. Annex I : 143, 638 f.; II: 143, 644 f.; I l l : 127, 635 f. Geneya Convention IV, 1949 (Relative to the Protection of Civilian Persons in Time of War): 45, 154 f., 211, 242, 263, 265, 465, 577, 611. Arts. 1: 157, 160; 2: 45, 157, 160, 217 [See also under Geneva Conventions, 1949]; 3: 160 [See also under Geneva Conventions, 1949]; 4 : 45, 158, 160, 263, 266, 410, 572, 575, 579; 5: 50, 159, 160, 253; 6: 160, 217; 7: 46, 160, 371, 390; 8: 160; 9: 160, 525; 10: 160; 11: 160; 12: 160, 406; 13: 63, 158, 166, 264; 14: 63, 84, 158, 162, 264, 285, 342, 347, 488, 631; 15 : 63, 84, 158, 162, 264, 285, 342; 16: 63, 73, 158, 162, 264, 351; 17: 63, 158, 163, 264, 349, 350, 351; 18: 158, 163, 164, 165, 231, 264, 281, 341, 342; 19: 158, 163, 164, 264, 341; 20: 158, 165, 231, 264; 21: 158, 165, 231, 264; 22: 158, 165, 264; 23: 158, 166, 264, 350; 24: 158, 167, 264, 269, 488; 25: 158, 159, 167, 232, 264; 26: 158, 167, 264; 27: 47, 50, 160, 168, 179, 245, 274, 283, 286, 478; 28: 169, 268; 29: 160, 169, 404; 30: 159, 160, 170; 31: 160, 170, 265, 272, 286, 325; 32: 160, 286, 478; 33: 160, 169, 171, 293, 304, 351, 409, 410, 413, 489; 34: 100, 160, 169, 171, 341, 413; 35: 46, 193, 267, 341, 572, 575; 36: 46, 575; 37: 46, 575; 38: 47, 159, 575; 39: 49, 172, 254, 575; 40: 50, 177, 575; 41: 50, 172, 254, 575; 42: 51, 172, 254, 575; 43: 51, 172, 193, 254, 575; 44: 51, 575; 45 : 51, 160, 192, 575; 46: 49, 50, 575, 614; 47: 160, 217, 227, 252, 267, 390, 579; 48: 223, 252, 267, 579; 49: 50, 160, 252, 268, 286, 420, 579, 580; 50: 234, 252, 269, 579; 51: 86, 160, 177, 231, 252, 260, 265, 271, 274, 579; 52: 160, 252, 579; 53: 160, 252, 278, 286, 287, 314, 579; 54: 252, 260, 579; 55: 232, 252, 274, 276, 286, 291, 295, 300, 302, 303, 579; 56: 231, 252, 276, 286, 579; 57: 232, 252, 300, 302, 579; 58: 234, 252, 579; 59: 160, 235, 252, 276, 579; 60: 235, 252, 274, 579; 61: 160, 235, 252, 274, 579; 62: 160, 235, 252, 274, 579; 63: 160, 235, 252, 277, 579; 64: 160, 169, 226-227, 245, 248, 252, 331, 579; 65: 160, 221, 222, 245, 248, 252, 579; 66: 160, 245, 252, 503, 579; 67: 160, 247, 252, 422, 579; 68: 160, 172, 248-249, 252, 254, 328, 331, 422, 579, 580; 69: 160, 249, 252, 579; 70: 160, 250, 252, 579; 71: 51, 159, 160, 251, 252, 260, 329, 579; 72 : 51, 159, 160, 252, 260, 329, 579; 73: 51, 159, 160, 252, 260, 829, 579; 74: 51, 159, 160, 252, 260, 329, 506, 579; 75: 51, 159, 160, 253, 260, 329, 579; 76: 51, 160, 252, 253, 329, 579; 77: 160, 252, 253, 329, 421, 594, 608; 78: 172, 252, 254, 263, 579, 580; 79: 172, 254; 80: 172; 81: 172; 82: 83: 173; 84: 173; 85: 174; 86: 174; 87: 174; 88: 175; 89: 175; 90: 175; 91: 92: 176; 93: 177; 94: 177; 95: 178, 187; 96: 178; 97: 179; 98: 179, 180; 99: 100: 180; 101: 159, 181; 102: 174, 181; 103: 181; 104: 182; 105: 182; 106:

252, 579, 173; 176; 180; 159,

List of

Treaties

182, 184; 107: 159, 176, 182, 183, 184, 189; 108: 182, 183, 184; 109: 182, 183, 647; 110: 182, 184; 111: 182, 185, 398; 112: 176, 182, 185; 113: 182, 184, 185; 114: 182, 185; 115: 48, 182, 186; 116: 182, 186; 117: 180, 186; 118: 180, 187, 247; 119: 180, 187; 120: 180, 187; 121: 180, 188; 122: 180, 188; 123: 180, 188, 194; 124: 180, 188, 189; 125: 180, 188, 189; 126: 51, 180, 189; 127: 190; 128: 190; 129: 190; 130: 191; 131: 191; 132: 191, 570; 133: 192; 134: 192, 390, 610; 135: 192; 136: 184, 191, 193, 194; 137: 193, 194; 138: 193; 139: 194; 140: 167, 176, 182, 184, 190, 193, 194, 525; 141: 194; 142: 194, 195, 286; 143: 160, 170, 189, 195, 253, 286; 144: 195; 145: 195; 146: 196, 286, 445, 463, 465, 503, 595; 147: 155, 160, 196, 286, 404, 445, 463, 465; 148: 160, 196, 404, 592, 595; 149: 196, 403; 154: 156, 169, 170, 211, 271; 157: 155; 158: 155, 157, 263. Annex I: 162, 342, 631 f.; II: 183, 647 f. Geneva Gas Protocol, 1925 (Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare): 354, 356 f., 361, 572-573 Genocide Convention, 1948: 22, 154 f., 198 f., 427, 445. Preamble: 199. Arts. I: 156, 199, 200, 420, 439, 463; II: 155, 200, 420, 437, 463, 478; III: 201, 468; IV: 201; V: 92, 202, 404; VI: 10, 202; VII: 203; VIII: 203; IX: 204; XII: 204; XIII: 198 Guadalupe Hidalgo, Peace Treaty of, 1848: 590 Hague Conventions, 1899: 5, 20 Hague Conventions, 1907: 5, 20, 23, 464 Hague Convention I, 1907 (For the Pacific Settlement of International Disputes): 584 Hague Convention III, 1907 (Relative to the Opening of Hostilities): 35 f., 39. Preamble: 36. Arts. 1: 36; 2: 37 Hague Convention IV, 1907 (Concerning the Laws and Customs of War on Land): 5, 12, 344. Preamble: 6, 55, 69, 97, 313, 437, 459, 667. Arts. 1: 32, 60; 2: 68, 155; 3 : 280, 290, 404, 580. Annex: Regulations Respecting the Laws and Customs of War on Land: 5, 30, 109, 210, 211, 217, 263, 265, 354, 408, 657. Arts. 1: 55, 56, 58, 59, 61, 321, 480; 2: 55, 61, 62; 3: 55, 56; 4 : 479; 10: 108; 11: 96, 108-109; 12: 96, 108-109; 20: 609; 22: 314; 23: 260, 265, 271, 272, 324, 325, 353, 354; 23 (a): 314, 317, 324, 353, 358, 572; 23 (b): 317, 320, 324; 23 (c): 317; 23 (d): 318; 23 (e): 315, 353, 354; 23 (f): 57, 320, 325, 385; 23 (g): 48, 278, 279, 281, 285, 287, 314, 615; 23 (h): 47, 48, 241; 24: 318, 320, 325, 331; 25: 332f., 334, 337; 26: 338; 27: 163, 284, 340, 343, 346, 347; 28: 351, 479; 29: 249, 325, 326 f., 330; 30: 325, 328, 658; 31: 325, 329, 331, 658; 32: 170, 380; 33: 382, 384, 388; 34: 384; 35: 392, 395, 396; 36: 385, 389; 37: 385; 38: 385; 39: 385; 40: 390, 615; 41: 391; 42: 63, 209, 213; 43: 209, 218, 223 f., 231, 241, 243, 266, 295, 480; 44: 170, 209, 265, 272, 325; 45: 209, 262, 264; 46: 169, 209, 234, 283, 293, 294, 351, 414, 478, 479, 484, 615; 47: 171, 209, 293, 479; 48: 209, 229, 234, 263, 290, 304; 49: 209, 304, 580; 50: 171, 209, 304, 409, 410, 411, 414; 51: 209, 304; 52: 209, 231, 260, 265, 270, 271, 272, 275, 294, 296, 300 f., 414, 580; 53: 87, 209, 233, 290-291, 294, 296 f., 304, 308, 580, 658; 54: 209, 233, 291, 297, 543; 55: 209, 287, 288, 304, 307; 56 : 209, 289, 292, 304, 307, 403 Hague Convention V, 1907 (Concerning the Rights and Duties of Neutral Powers and Persons in War on Land): 96, 515, 532 f. Arts. 1: 534; 2: 534, 536, 541, 549, 565; 3: 536, 541; 4: 536, 545; 5: 536, 537, 541, 545, 546, 584; 6: 546; 7: 543, 548, 662; 8: 542, 543; 9: 543, 552; 10: 536, 584, 663; 11: 554, 556, 559, 560; 12: 555, 558, 560, 569; 13: 561; 14: 562-563, 565; 15: 567; 16: 571, 572; 17: 546, 571, 572, 573; 18: 534, 572, 573; 18 (a): 549, 553; 19: 582; 20: 532 Hague Convention VIII, 1907 (Relative to the Laying of Automatic Submarine Contact Mines): 364 f. Arts. 1: 364; 2: 364; 3: 364; 4: 365, 538; 5: 365 Hague Convention IX, 1907 (Respecting Bombardment by Naval Forces in Time of War): 334. Arts. 1: 333, 338, 339; 2: 333, 339; 3: 305, 338; 4: 338; 5: 164, 284, 343, 347, 349; 6: 339; 7: 351 Hague Convention X, 1907 (For the Adaptation of the Principles of the Geneva Convention to Maritime War): 653. Art. 15: 567 Hague Convention XI, 1907 (Relative to Certain Restrictions on the Exercise of the

682

List of

Treaties

Right of Capture in Maritime War). Arts. 1: 578; 2: 578; 3: 98, 299, 341; 4: 299, 341; 5: 98, 659; 6: 98; 8: 98, 299; 9: 98 Hague Convention X I I I , 1907 (Respecting the Rights and Duties of Neutral Powers in Maritime War): 515, 532 f. Preamble: 532; Arts. 1: 534; 2: 534; 5: 541; 6: 548; 7: 549, 662; 8: 549, 550; 9: 535; 10: 534-535; 11: 535; 18: 545; 19: 551; 24: 559; 25: 537, 541, 661; 26: 537, 663 Hague Convention XIV, 1907 (Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons): 332 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954: 24, 285, 343 f. Arts. 1 (a): 344; 1 (b): 344; 1 (c): 344; 4: 344; 4 (1): 345 ; 4 (2): 290, 345; 4 (3): 345; 4 (4): 345; 5: 289; 7 (2): 345; 8 (6): 344; 10: 348; 11 (2): 290, 345; 11 (3): 345; 12: 345, 348; 13: 345, 348; 14: 345; 15: 345; 16: 348; 17 (1): 348; 17 (2): 348; 17 (4): 348; 18 (1): 344; 18 (2): 344; 18 (3): 344; 19: 20, 622; 21: 345; 28: 346; 33 (3): 344; 36: 344; 36 (1): 349. Regulations for the Execution of the Convention. Arts. 3: 349; 4: 346, 349; 5: 349; 6: 346, 349; 7: 349; 8: 349; 11: 348; 12: 344; 20: 348; 21 (1): 349; 21 (2): 349. Protocol: See Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 1954. Hague Declaration Respecting Asphyxiating Gases, 1899: 315, 354, 355 Hague Declaration Respecting Expanding Bullets, 1899: 315, 354, 355 Hague Regulations, 1899 (Respecting the Laws and Customs of War on Land). Annex to Hague Convention II, 1899 (With Respect to the Laws and Customs of War on Land): 109, 344. Arts. 1: 59; 59: 563 Hague Regulations, 1907. See Annex to Hague Convention IV, 1907 Instrument of Surrender of Japan, 1945: 425 In ter-American Treaty of Reciprocal Assistance, Rio de Janeiro, 1947: 28 International Court of Justice, Statute of the, 1945. Arts. 34: 43; 36: 43; 59: 7 International Telegraphic Convention of St. Petersburg, 1875. Arts. 7: 543; 8: 543 International Treaty Regarding the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact), Washington, 1935: 284, 343, 344, 348, 349 International Wireless Telegraph Convention, 1906: 541 Israel-West Germany Agreement on Reparations, Luxembourg, 1952: 405 Israeli-Arab Armistice Agreements, 1949: 386 Kellogg Pact, or Kellogg-Briand Pact. See Renunciation of War, Treaty for the, 1928 Lausanne, Treaty of, 1923: 356, 360, 597 League of Nations, Covenant of the, 1919: 18, 515, 518, 520, 522, 527, 591, 598. Arts. 10: 40, 516, 602; 11: 39; 12-15: 40; 16: 40, 517; 17: 40, 517 London Agreement, 1945. See Agreement for the Establishment of an International Military Tribunal Moscow Agreement, 1945: 425 Moscow Declaration on German Atrocities, 1943 : 426, 502 Neuilly, Treaty of, 1919. Art. 82 : 356, 360 North Atlantic Treaty, Washington, 1949: 28 Neutrality Pact between Japan and the U.S.S.R., 1941: 594 Pacific [ANZUS] Pact, San Francisco, 1951 (Tripartite Security Treaty): 28 Pact of Paris. See Renunciation of War, Treaty for the, 1928. Peace Agreement between Japan and the U.S.S.R., Moscow, 1956; 589 Peace Agreements between Germany and China, Peking, 1921: 604 Peace Treaty between United States and Austria, 1921: 604 Peace Treaty between United States and Hungary, 1921: 604 Peace Treaty with Bulgaria, Paris, 1947: 427, 596 Peace Treaty with Finland, Paris, 1947: 427, 596 Peace Treaty with Hungary, Paris, 1947: 427, 596 Peace Treaty with Italy, Paris, 1947. Arts. 16: 531; 45: 428, 596

List of

Treaties

683

Peace Treaty with Japan, San Francisco, 1951: 589. Arts. 1: 590; 11: 593; 14 : 592; 23: 590 Peace Treaty with Rumania, Paris, 1947: 427, 596 Potsdam Declaration, 1945. Art. 10: 425 Protocol for the Protection of Cultural Property in the Event of Armed Conflict, T h e Hague, 1954: 289, 343, 344, 346. Arts. 1: 346; 2: 346; 3: 309, 346; 4 : 346; 5: 346 Protocol Relating to Military Obligations in Certain Cases of Double Nationality, T h e Hague, 1930. Art. 1: 572 Rapallo, Treaty of, 1922: 604 Renunciation of War, Treaty for the, Paris, 1928 [Pact of Paris; Kellogg Pact; Kellogg-Briand Pact]: 17, 39, 40, 433, 515, 517 f., 530, 531, 532, 598. Arts. 1: 17, 18; 2: 17 Roerich Pact, 1935. See International Treaty Regarding the Protection of Artistic and Scientific Institutions and Historic Monuments Saavedra Lamas Treaty. See Anti-War Treaty of Non-Aggression and Conciliation, 1933 St. Germain, Treaty of, 1919. Art. 135: 356, 360 Sèvres, Treaty of, 1920. Art. 176: 356, 360 State Treaty for the Re-establishment of an Independent and Democratic Austria, Vienna, 1955: 528 Telecommunication Convention, Atlantic City, 1947. Arts. 29: 542; 30: 542; 41: 322; 45: 322; 47: 322 Trianon, Treaty of, 1920. Art. 119: 356, 360 United Nations, Charter of the, San Francisco, 1945: 10, 18, 29, 39, 41, 42, 406, 515, 520, 522 f., 530, 531, 532, 540. Preamble: 9, 23, 406. Chaps. VI: 26; VII: 9; VIII: 9. Arts. 1: 23, 41, 528; 1 (1): 407, 427; 1 (3): 203; 2: 37, 619, 621; 2 (3): 23; 2 (4): 23, 457, 601, 626; 2 (5): 522, 527; 2 (6): 24, 29, 457, 522, 527; 2 (7): 29, 204, 524, 619, 626; 24: 41; 25: 522; 27 (3): 16, 26, 523; 33: 37, 584; 33 (2): 407; 34: 27, 28; 35: 27, 28; 36: 43, 407; 39: 29, 41, 42, 526; 40: 526; 41: 29, 407, 526; 42: 24, 28, 29, 526; 43 : 407, 526; 50: 29; 51: 27, 28, 523; 52: 28; 52 (3): 26; 53: 28; 53 (1): 28, 523; 62 (2): 204; 76 (a): 205; 74: 205; 73 (c): 205 ; 84: 44; 103: 527; 107: 28, 523. Statute of the International Court of Justice. See International Court . . . Universal Declaration of Human Rights, 1948: 161. Preamble: 504. Arts. 10: 250, 504; I I (2): 247 Universal Postal Convention, Paris, 1947: 184 Universal Postal Convention, Brussels, 1952. Art. 37: 128, 184 Versailles, Treaty of, 1919: 515, 591. Arts. 171: 355; 227: 444, 596; 231: 40, 432; 231-234 and Annex I : 592; 428: 597; 430 : 597. Covenant of the League of Nations. See League of Nations . . . Vienna, Treaty of, 1815: 527 Washington Conference Treaty, 1922 (To Prevent the Use in War of Noxious Gases and Chemicals). Art. V: 356 Washington, Treaty of, 1871: 549 Western European Treaty, Brussels, 1948: 28

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INDEX

INDEX

Accident, defense to war crime, as, 486487 Act of state, 430 Affidavit evidence. See War crimes, trial of Aged, protection of, 161-162, 342, 349 Aggression: acts of, 41, 446 gains, recognition of, 598-599, 604 war of, 40 f. See also Peace, crimes against; War, illegal; War, just and unjust declaration, without, 37-38 defined, 41-42, 446-447 law in 1939 re, 433"436 neutrality in, 516 policy makers in, 450-454, 456 propaganda of, 458 valid acts of aggressor in. See War, illegal Agreements, special: belligerents, between, 379 civil and colonial wars, in, 622, 623, n. 16 civilians, on, 46, 160, 183, 191, 195, 570 neutral territory, interned forces in, re, 558, 568 prisoners of war, on, 101, 128, 143, 558, 610 wounded, sick, on, 70, 568 Aid societies. See also Neutral aid societies medical personnel of, 77-78, 79, 80-81 property of, 85-86, 569

Air warfare: commission of jurists on, 351-352 ramming in, 367 rules of, 352, 544, n. 46, 650-667 rules of land war apply to, 352, 667 Aircraft: belligerent rights of, 652 bombardment from, 332 civil, crews of neutral territory, internment in, 556, 565 prisoners of war, as, 98 wounded and sick, 73, 565 disabled, attack on, 318 espionage from, 328, 657-658 marking of, 87, 165, 654, 664 military, civilian crews of neutral territory, internment in, 556, 565 prisoners of war, as, 98 wounded and sick, 73, 565 neutral supply of, 549, 550 private, visit, search, and capture of, 663-667 propaganda, used for, 324, 654 Aircraft carriers, neutral waters, in, 536, n. 14 Alien Property Custodian, 49 Aliens. See also Enemy aliens; Neutrals; Protected persons expulsion of, by belligerents, 50 Allied territories. See Friendly territories Allies of states at war, status of, 38 Altmark, case of the, 535, n. 6, 561-562

Index

7 406, 526 impartiality, duty of, 543 intervention re law of war violations, 406 loans by, 553 medical personnel of belligerents in, 69, 562 f. mines, sea, used by, 364 neutral persons distinguished from, 533. 570-57 1 opinion, expression of, by, 574-575. See also Neutral opinion; Neutrals prisoners of war, internment in, 142143 retaliation against belligerents by, 583 third force, as a, 520-521 war crimes, jurisdiction re. See Universality of jurisdiction

711 Neutral states (Cont'd) war material, supply of, by, 548, 550558 wounded and sick of belligerents in, 69, 562 f. Neutral territorial waters: inviolability of, 534-535 passage of, 534-535, 561-562 Neutral territory: air observation from, 544 aircraft, belligerent, in, 554 base, belligerent, in, 542, 545, 554 intelligence, belligerent, in, 544-545 interned forces in escape of, 558 finances of, 558 maintenance of, 558 parole of, 559-560 places of confinement of, 558-559 property of, 560 treatment of, 69, 554 f., 567-569 internment in categories exempt from, 556, 567, n. 141 inviolability of, 534-540 defense of, 536-538 prisoners of war, escaped, in, 561 recruiting for belligerents in, 545547 solicitation of war funds in, 553 training belligerent forces in, 547 transit to landlocked belligerent through, 537, n. 15 troops, belligerent, received in, 5 5 3 560 prisoners of war of, 561-562, 564, 567, n. 141 violations of prevention of, 539-540 redress for, 538 war factories, belligerents of, in, 553 wounded and sick of belligerents in, 69. 562-5 6 9 costs of, 569 medical aircraft, from, 565 passage of, 563-566 personnel and material accompanying, 69, 564, 565 sea, landed from, 566-567 treatment of, 567-569 Neutrality: breach of, remedies for, 584 civil war, in, 524 concept of Hague Conventions, 1907, in, 5 1 5 516

712 Neutrality (Cont'd) concept of (Cont'd) modern, summarized, 531 World War II, at outbreak of, 522 declarations of, 533, 547 duties of, 533, 537-538, 543 Geneva Conventions, 1949, under, 524525 Korean war, in, 525-526 League of Nations Covenant, under, 516-517 limited, 530 national laws on, 532-534, 547, 552, 553. 571 Paris pact, 1928, under, 517-519 proclamations of. See Neutrality, declarations qualified, 530 rights and duties of, generally, 533 Saavedra Lamas treaty, under, 51952i undeclared war, in, 531 United Nations Charter, under, 522526, 527-528 unjust war, in, 516 violations of duty to prevent, 537-538 duty to resist, 537 World War II, in, 516, n. 8, 521-522, 529 Neutralized states, 443, 526, n. 52, 527528 Austria, status of, 526, n. 52, 528 Switzerland, 527-528 violation of, 443 Neutralized zones, 162, 342-343, 521 Neutrals. See also Neutral; Neutral states belligerent's territory, in departure, right of, 45-46, 572 services, requisition of, 571-573, 575 status of, 575-578 transient, 577-578 compensation from belligerents to, 578, 580 conscription by belligerents of, 571573 defined, 571 enlisting in belligerent forces, 58, 546, 57i espionage by, 329 intelligence, communication of, by, 544 loans and credits by, 534, 553, 573 munitions, export of, by, 534 neutral states distinguished from, 533, 570-57 1

Index Neutrals (Cont'd) occupied territories, in arrest of, 251, n. 135 contributions from, 304, 580 departure, right of, 267, 579 deportation of, 580 expulsion of, 580 requisitions from, 303, 580, 581-582 status of, 263-264, 579-581 transient, 580 opinion, expression by, 574. See also Neutral opinion; Neutral states protected persons, as, 158, 161, 575 railway material of, seizure, 583 reprisals affecting, 410, 583 siege, departure from, 349, 350 status of, 570 f. loss of, 571 war material, supply of, by, 548-553, 573 zone of operations, in, 578 Neutrons, effects of, 370 New Zealand, treaty reservations by, 250 News, appliances for transmission of, enemy, 291, 296 Night and Fog Decree. See Nacht und Nebel Nomonhan (Outer Mongolia) hostilities, 594 Nonbelligerency: Geneva Convention III, 1949, in, 529, 556, 574 meaning of, 529-530 Noncombatant population, 55 self-defense by, 53 Noncombatants, hostilities by, 53 Nuclear bombs, testing of, protested, 377, n. 256 Nuclear radiation, 372, 377 legality of, 372-373, 375 Nuclear warheads, in rockets, 367 Nuremberg, trials at, by United States, 427 Nuremberg Judgment: authority of, legally and politically, 444-445 criticisms of, 428-445 principles of, 22, 133, 421, ns. 14, 17 Nuremberg trial: conduct of, 429 duration of, 423 preparation of, 428 Nuremberg Tribunal: charter of humanity, crimes against, in, 439

Index N u r e m b u r g T r i b u n a l (Cont'd) c h a r t e r of ( C o n t ' d ) i n t e r n a t i o n a l l a w , as expression of, 434 peace, crimes against, in, 445 p r i n c i p l e s of, 22, 133, 421, ns. 14, 17 c o m p o s i t i o n of, 423, 430-432 c o n v i c t i o n s b y , 449-450 e s t a b l i s h m e n t o f , 423 e v i d e n c e , r u l e s of, 506-507 j u r i s d i c t i o n o f , 429-430 p r o c e d u r e o f , 505 f. O c c u p a n t . See also C i v i l affairs; M i l i t a r y government; Occupation; Occupied territory a u t h o r i t y of, e x t e n t , 213, n. 16 debts of, p a y m e n t , 229, n . 57, 607 i n h a b i t a n t s , d u t y to, 265 laws a n d acts of, p o s t - o c c u p a t i o n val i d i t y , 605-607 laws of h o m e t e r r i t o r y o f , 241-242 legislative p o w e r of, 2 1 7 - 2 1 8 , 223, 264, n . 175 o r d i n a n c e s of, 221 p r o c l a m a t i o n s of, 220-222, 468 r e q u i s i t i o n by, 275 r u l e r de facto, 217, 241 O c c u p a t i o n , 209 f. See also C i v i l affairs; Military government; Occupant; Occ u p i e d territory; P r o t e c t e d persons a d m i n i s t r a t i o n o f , p r i n c i p l e s , 223-227 a d m i n i s t r a t i o n officers. See O c c u p a t i o n , personnel a p p e a l courts, 245, 259 censorship postal, 232 press, 233 c h i l d r e n , care a n d e d u c a t i o n o f , 234, 269 civilians a c c o m p a n y i n g a r m y of status of, 255 trial o f , 255-256 close of m i l i t a r y o p e r a t i o n s , a f t e r , 217 collective penalties, 409-410, 414 c o l o n i a l territories, of a d m i n i s t r a t i o n of, 261 l a w a n d courts of, 256-257, 258 c o m m e n c e m e n t , d a t e of, 219 c o m m u n i c a t i o n s , 233 c o n d u c t o f , as f a c t o r i n v i c t o r y , 211 contributions a p p l i c a t i o n of, 304 a u t h o r i z a t i o n of, 304 e x o r b i t a n t , 304 f o r e i g n n a t i o n a l s , b y , 304, 580

7!3 Occupation (Cont'd) c o n t r i b u t i o n s (Cont'd) levy of, 228, 303 r u l e s for, 304 courts d u t y to establish, 258-259 j u r i s d i c t i o n o f , 244, 246, 257-259 local, j u r i s d i c t i o n o f , 241, 246, 258, 262 p e r s o n n e l o f , 243 types o f , 257-259 w a r crimes, o n , 257-258 c r i m i n a l l a w a n d a d m i n i s t r a t i o n , 243 f. c r i m i n a l p r o c e d u r e , 250-253, 259 a p p e a l a n d p e t i t i o n , 252 charges, n o t i f i c a t i o n o f , 251 defense, 251-252 c u r r e n c y , 230 customs dues, 229, 231 debts of d i s p l a c e d g o v e r n m e n t , 229 d i s c r i m i n a t o r y laws, r e p e a l o f , 224, 227 district officers, o r d e r s of, 222 d u a l n a t u r e of, 213 e c o n o m i c a d m i n i s t r a t i o n , 230 e d u c a t i o n , 234 effective, 213 financial a d m i n i s t r a t i o n of, 227-230 f o o d s u p p l i e s o f , 274-275, 295, 301-302 goods, s u p p l y of, 274-275 j u d g m e n t s , r e c o r d of, 252 justice c i v i l affairs a g r e e m e n t s o n , 236 s t a n d a r d s o f , 240-241, 246 l a b o r , c o n t r o l o f , 273-274 l a n d r e f o r m s , 230 laws, local, v a l i d i t y of, 241 legal p r o c e e d i n g s of i n h a b i t a n t s , 241 legal systems, 256-257 l e g i s l a t i o n p e n a l , 244-245 p u b l i c a t i o n o f , 245 legislative b o d i e s u n d e r , 261 l i t i g a t i o n , civil, d u r i n g , 241, 242-243 m a i n t e n a n c e of, 219 m e d i c a l supplies, 232, 275, 295, 3 0 1 302 m i l i t a r y courts, 245, 246, 257-258 p e n a l t i e s o f , 247-249 p r o c e d u r e of, 250-253, 259-260 m i l i t a r y g o v e r n o r or a d m i n i s t r a t o r , 222 m o r a t o r i u m , 243 official gazette, 222 officials, local a p p o i n t m e n t o f , 260 c o m p u l s i o n of, 260-261 c o n t i n u a n c e of, 260

714 Occupation (Cont'd) officials, local (Cont'd) functioning of, 26a oaths of, 262 obedience of, 262 place of employment of, 261 removal of, 260 salaries of, 263 security measures against, 263 trial of, 256 peace treaty, effect of, on, 596-597 penal laws, 226-227 personnel chain of command, 214-215 private gain of, 235 role of, 26a training of, a 10, 2 1 1 phases of, 214, 224-225 postal service, 232-233 precedents, 210 press, 233 public health and sanitation, 231 public order and safety, 231 property expropriation for, 296 public utility services, 233 public welfare, 234 records, 235 relief schemes, 275-277 religious activities, 234 rules of amendment of, 2 1 1 World War II, in, 209-211 security forces, 215 security measures, 233. See also Protected persons social security regulations, 274 subjugation distinguished from, 215 taxes application of, 228 creation and collection of, 228 increase of, 229 local, 229 reduction and waiver of, 229 termination of, 596-597, 605-608 national law on, 607-608 trade unions, 273-274 troops, law applicable to, 254 Occupied territory, 209 f. See also Occupant; Occupation annexation of, status of inhabitants on, 217, 267 communication with, 378 cultural property in. See Cultural property deportation into, 244, n. 1 1 3 , 268 deportees from, 242, 267-269

Index Occupied Territory (Cont'd) divisions, political, of, 218 firearms in, licensing of, 299-300 fiscal laws of, 228 Geneva Conventions, 1949, general application to, 68, 97, 157 inhabitants of. See also Protected persons employment of, 270-273 deportation of, 242, 267-269 information from, 170, 265, 272 military employment of, 265, 270272 oaths of allegiance by, 262, 264, n. 176 obedience to occupant by, 264 protection of, generally, 156, 263264 resistance, right of, 265-266 self-defense of, 266-267 law, retroactive, in, 245, 246 legislative authority over, 217-218, 223, 264 prisoner of war internees in, 99 property in. See also Cultural property; Enemy property; Property; Railroads abandoned, 306, 308 expropriation for public order and safety of, 296 private, treatment and wrongful sale of, 293-294. See also Requisitions private, movable, 296-303, 305 private, real, treatment of, 294296 public institutions, of, 289-292, 307 state, custody of, 306-307 state, movable, appropriation of, 290-293 state, real, 287-288 treatment of, 278, 288 f., 315 protected persons in. See Protected persons relief supplies to, 275-277 resistance movements in, 58, 61, 265266 sovereign, legal, of, 217 restoration of, 605-608 status of, 217-218, 264, n. 175 spies and saboteurs in, detention of, 159 wages in, 273 Officials, civil, as prisoners of war, 99100 "Oil cans," a fire weapon, 361, n. 194

Index Orders of a superior. See Superior orders Organizations, liability of, for war crimes, 466. See also Criminal organizations O x f o r d Manual, on reprisals, 408, n. 23 Palestine, occupation of, 210 Panama Canal, neutralized character of, 528 Parachutists, attack on, 318 Parastatal enterprises, occupied territories, in, 292-293, 307 Parastatal institutions. See also Enemy property, state-owned partly Italian law on, 292 occupied territories, in, British directive on, 293 Paris, preliminary peace conference at, 1919. 355 Paris pact, 1928: neutrality under, 517-519 parties to, 17, 517 war under, 17-18, 517-518 Parlementaires: abuse of position by, 384 aircraft conveying, 380-381 authorization of, 381 capitulations, in, 393 combat, during, 381 companions of, 381 complaints by means of, 403 credentials of, 381 defined, 380 detention of, 384 information obtained by, 384 inviolability of, 380, 384 night, at, 381 reception of, 380, 382-384 refusal to receive, 382, 383 return of, 384 selection of, 382 Parole. See Neutral territory, interned forces; Prisoners of war Parties to the conflict, meaning of, 69, n. 10 Partisan resistance, as war, 54, n. 8 Pass, 398 Passports, military, 397, 399 Peace, crimes against. See also Aggression; W a r crimes; War, illegal; War, just and unjust conspiracy to commit, 436, 445, 447450, 476 defined, 420, 445 elements of, 450-454 international law offenses, as, 432-436

7»5 Peace (Cont'd) preparation of, 454-455 planning of, 447, 454-455 punishment of, 250 suggested offenses of, 457-458 threats of illegal war as, 457 waging illegal war, 456 Peace and security of mankind, offenses against, draft code of, 22, 422, n. 20, 424 attempts, complicity, incitements, 468 conspiracy, 477 conventional war crimes, 464, n. 212 humanity, crimes against, 439, 459, n. 185 peace, crimes against, 457-458 superior orders, on, 493, n. 344 Peace treaties: amnesty effect of, 593-596 armistices distinguished from, 386, 589 authority to conclude, 590 breach of, 599-600 commencement of peace under, 59059i construed, 597-598 content of, 591 form of, 589-590 guarantees in, 597 ignorance of, warfare in, 600 illegal terms of, 591 imposed, 597-599 indemnities in, 592-593 neutrals not bound by, 593, 598 occupied territories, on, 596-597 performance of, 597 ratification of, 590, 591 reparations in, 309, 592-593 Permanent Court of Arbitration, T h e Hague, 584, n. 220 Permanent Court of International Justice, 7 Permit, 398 Persecutions, as crimes against humanity, 460 Philippines, treaty reservation by, 204 Pillage, prohibited, 170-171, 284, 293, 35 1 Planets, law of war applied to, 536 Plundering, 294, n. 81 Poison, use of, 314, 317, 324, 353, 359 atomic bombs as, 372 Poisoned weapons, use of. See Poison "Police action," war as, 10, 16, 25 Political groups, genocide on, 201 Populations, entire, protection of, 158, 161-167, a®4

716 Portugal, treaty reservations by, 102, 161, 624, n. 23 Postal dues: internees, civilian, of, 184 prisoner of war agencies, of, 151 prisoners of war, of, 127-128 protected persons, agencies for, of, 194 Postliminium: doctrine of, 605-608 interregnum bars, 608 national law, under, 608 Preliminaries of peace, 588-589 Preventive war, 27-28 preventive action re neutral state distinguished from, 540 Prisoners, civil and colonial wars, in, 622 Prisoners of war: accounts of, 124-125 armistice, troops breaking, as, 392 asylum, right of, 613-614 badges and decorations of, 116 belongings of, 106-107, 125, 281 books to, 127 burial of, 149 camps discipline of, 115-116 hygiene of, 113 marking of, 111 canteens for, 112-113 capture cards, 126 categories of, 97-100 chaplains for. See Chaplains civil capacity of, 104 clothing of, 112 close of hostilities, status after, 614 compensation claims by, 125 complaints of, 119, 129 correspondence of, 126-129 censorship of, 128-129 cremation of, 149 death certificates of, 149 death of, inquiry into, 149-150 detaining power, responsibility of, 102 disciplinary offenses, disposal of, 137 discipline of, applicable laws, 131-132 education of, 115 enemy forces, service in, of, 104, 153 enlisted men, treatment of, 117 enlistment in enemy forces of, 104, 153 escape of, 135-137, 561 assisting, 136-137 attempted, 135 connected offenses, 136 conspiracy for, 136 mass, in, 136 neutral territory, to, 561

Index Prisoners of War (Cont'd) escape of (Cont'd) notification of recapture, 137 prevention of, 135 evacuation from combat zone of, 107 exchange of, 148, 397 food rations of, 112 Geneva Convention I, 1949, application to, 70 German treatment (World War II) of, 95 hostages as, 100, 414 hygiene of, 113 identification of, 105 Information Agency and Bureaus. See Central; Prisoners of W a r Information injured, repatriation of, 144 injury of, inquiry into, 149-150 internment of, 99, 108 f. neutral territory, in, 143, 570 places of, 110-111 judicial proceedings against, 138-142 appeal and petition from sentence, 141 charge, 140 defense, 140 notifications of, 139-140, 141 pre-trial procedure, 139 protecting powers in, 139-140, 141 sentence, 138-139, 141-142 labor detachments of, 120-121, 131 labor of, 118-121 legal documents of, 129, 148-149 maintenance of, 104 medical aid for, 78 t., 104, 113 costs of, 113 medical inspections of, 113-114 medical personnel retained for. See Medical personnel, retained medically trained, employment of, 114 ministers of religion, 115 mixed medical commissions for, 131, 143-144 money of, 106-107, 121-122 occupied territories, internees in, as, 99 offenses of before capture, 132-133 own country, against, 612 proceedings for, choice of, 132 officers, treatment of, 116-117 other ranks, treatment of, 117 parcels to, 127 parole of, 108-110 capitulations, in, 395

Index Prisoners of War (Cont'd) pay advances of, 122, 125 supplementary, 122-123 working, 123 political beliefs of, 613, n. 1 1 7 postal and other dues, exemption from, 127-128 prisoners' representatives choice of, 129-130 labor detachments, in, 131 reports of, 129 rights and duties of, 112, 129, 130, 137, 140, 141 status of, 1 3 0 - 1 3 1 working pay of, 123 protection of, 102 f., 315, 3 1 7 - 3 1 8 bombardments, against, 1 1 1 punishments of, 1 3 1 - 1 3 2 , 133-134, 135, 136- 137. I38"i39. 141-142See also Prisoners of war, judicial proceedings applicable laws on, 1 3 1 - 1 3 2 disciplinary, 134, 137-138 quarters of, 1 1 1 - 1 1 2 questioning of, 105-106, 613, n. 1 1 7 recreation of, 1 1 5 relatives of, notifications to, 126, 15015a release at close of hostilities of, 145147, 609-613 relief shipments, collective, to, 127, 128 religious activities of, 78 f., 1 1 4 - 1 1 5 remittances to and from, 123-124 repatriated, military employment of, 144 repatriation of accused or convicted, 144, 147, 609, 613 close of hostilities, at, 145-147, 609613 refusal by, 142, 146, 613 Korean armistice, in, 6 1 1 - 6 1 3 long captivity, because of, 143 wounded and sick, 142-144 reprisals against, 103, 3 1 7 - 3 1 8 , 409, 410, 413 requests of, 129 retained personnel for. See Medical personnel, retained rights of, no renunciation, by, 101 rules, notification to, 1 1 6 saluting by, 116 screening camps for, 1 1 1 search for, 609

717 Prisoners of War (Cont'd) shipments to, examination of, 129 subversion of, 10, n. 40 telegrams of, 126, 128 titles and ranks of, 116 tobacco, use of, 1 1 2 transfer of camp, from, 1 1 7 - 1 1 8 power, another, to, 102 transit camps, in, 107, 1 1 1 treatment of, 95-96, 102 f., 483 trial of. See also Prisoners of war, disciplinary; judicial courts, 132 fair, right of, 153 weapons, use of, against, 1 1 6 wills of, 148-149 women, quarters of, 1 1 2 wounded and sick. See also Wounded and sick neutral countries, accommodation in, of, 142-144, 570 repatriation of, 142-144 transfer from camp, 1 1 7 - 1 1 8 Prisoners of War Information Bureaus, national: duties of, 75, 76, 77, 127-128, 149, 1501 5 1 , 282 establishment of, 150, 570 neutral states, in, 570 Prize courts, British, 7 Projectiles. See also Rockets explosive, 315, 354-355, 360 incendiary, 354-355. 36o> 3 ß 2 Propaganda: aggressive wars, of, 458 means of warfare, as, 323-325 Property. See also Cultural property; Enemy property; Occupied territory, property in belligerents of, requisition by neutral states, 582-583 captured, recovery of, 309-310 destruction and seizure of compensation for, 280, 283, 290, 295, 296, 300, 404-405, 578, 580, n. 206, 582-583 unlawful, 93, 196, 290, 315, 403, 578 neutral, requisition under right of angary of, 581-582 presumption of public ownership of, 292 Protected persons. See also Civilians; Occupied territory annexed territory, in, 217, 267 assigned residence of, 50-51, 254

Index

7i8 Protected persons (Cont'd) belligerent's territory, in close of hostilities, effect of, on, 614 control of, 50-51 departure, right of, 45-46 depcitation of, 52 detention, under, 46 employment and support of, 49-50, 575 extradition of, 52 internment of, 50-51 property of, 48-49, 194, 614-615 rights of, 45-50, 614-615 ti a nster of, 51-52 coercion of, 170 collective penalties on, 170, 410 definition of, 157-158 duration of protection of, 160 enemy forces, service in, of, 196 family rights of, 47, 168 hostages, as, 171, 196, 413 identification of, 193 ill-treatment of, 170 Information bureaus, national, for, 184, 191, 192-194. See also Central information from, 170, 265, 272, 325 internment of, 171 f., 254. See also Internees, civilian neutrals as, 158, 161, 575, 579, 580 occupied territories, in. See also Occupied territory, inhabitants of armistice affecting, 3go death sentence, execution of, 252253 departure, right of, 267 deportation of, 267-269 detention, in, at end of occupation, 253. 422-423, 594, 608 duration of protection, 160 employment of, 270-273 enemy forces, service in, 270 espionage by. See Spies imprisoned, 249, 253 offenses before occupation by, 250 offenses by, penalties for, 247-249, 328-329, 422 rights of, no deprivation of, 227, 267 transfer of, 267-269 treatment, impartial, of, 245-246 trial of. See Occupation, criminal procedure war treason by, 331. See also Spies protecting powers for. See also Protecting powers applications to, 169-170

Protected persons (Cont'd) relief organizations for. See also Relief organizations applications to, 169-170 reprisals against, 171, 410 rights of, no renunciation by, 160 security measures against, 158-160, 168, 253-254, 263 status of, 45 f., 168 f. loss of, 158-160 treatment of, 168 f. responsibility for, 169 trial, fair, deprivation of, 196 valuables, personal, of, 178-179, 193194 war areas, in, 268 Protecting powers, 525. See also Neutral states belligerent's territory, duties in, 46, 50, 51, 378, n. 1 cultural property convention, 1954, under, 345 death sentences, notification to prisoners of war, on, 138-139 protected persons, on, 252-253 Geneva Convention I, 1949, under, 70-72, 75, 85, 525 Geneva Convention III, 1949, under, 102, 126, 127, 128, 129, 130, 131, 138, 139-140, 141, 152, 525, 556-558 Geneva Convention IV, 1949, under, 46, 50, 51, 161, 166, 169-170, 178, 181, 182, 183, 184, 188, 190, 193, 195, 232, 251, 252, 253, 525 good offices of, 72, 379, 526 neutral territory, in, 556-558 neutrals, of, 161 occupied territories, duties in, 232, 251, 252, 253, 274, 275, 276, 302 PSychological-warfare units, 323 P u p p e t governments, 227, n. 49, 605-606 armies of, 58 laws of, 605-606

Quarter, grant of, 318

Radar, target identification by, Radio. See also Wireless distress calls by, 321. 579, n. intelligence transmitted by, 45, 46, 653 propaganda weapon, as, 323 war, in, commission of jurists 352

348, 360 190 544, ns.

on, 351-

Index Radio installations, neutral, in zone of operations, 579, n. 190 Radio operators, superior orders of, 495, n. 351 Radio stations: bombardment of, 334, n. 86 mobile, 542, n. 36, 544, n. 46 neutral territory, in, 542, 543 war time, in, operation of, 579, n. 190 Radioactive contamination: atomic bombs, from, 370-371, 372, 373 genetic effects of, 372 hydrogen bombs, from, 377 Radiological warfare, 373 Railroads. See also Angary; Train neutral, material of requisition, 582 seizure, 583 occupied territories, in profits of, 300, n. 103 rolling stock and tracks of, 287, n. 48, 297 Rebels. See Armed conflict not of an international character; Belligerent status; Civil war; Colonial war; Insurgency Receipts, for war material seized, 300 Reconnaissance, 326 Red crescent, 88. See also Red Cross, emblem Red Cross: emblem, 88-91 display of, 88-91, 346-347 permitted use of, 90-91, 94, 319, 321 flag, use of, 89-90, 320 International Committee of the civil and colonial wars, in, 622 civilians, aid for, 50, 169-170, 178, 181, 183, 184, 195, 253, 275, 276, 374. n. 244 civilians, draft rules protecting, 374, n. 244 good offices by, 72, 85, 162 prisoners of war, aid for, 127, 128, 129-130, 131, 151, 152 reports of, as evidence, 509 sick, wounded, and personnel, aid for, 71 Red Cross Societies, national, 50, 169, 232, 276-277. See also Relief organizations personnel of, 77-78, 79, 546 Red lion and sun, 88. See also Red Cross, emblem Red Shield of David, 88. See also Red Cross, emblem

719 Refugees: enemy nationality, of, treatment, 51 occupied territories, in, offenses of, 250 Relief organizations. See also Red Cross belligerent's territory, in, 50 civilians, for, 161, 169-170, 194-195 prisoners of war, for, 102, 151-152 wounded, sick, and personnel, for, 71, 75 Religious convictions, respect for: dead, re, 77, 149 internees, civilian, re, 174, 176 occupied territories, in, 174, 176, 234 prisoners of war, re, 1 1 4 - 1 1 5 , 149 protected persons, re, 47, 174, 176, 234 Religious institutions, enemy, property of, 289-290, 340-341, 343 Religious personnel, of armed forces. See also Chaplains capture at sea of, 81 Religious rights, invasion of, 466 Reparation Commission, after World War I, 592 Reparations: industrial facilities as, 30g occupied territories, in, property seized as, 309 peace treaty, in, 309, 592-593 "Reprisal prisoners," 415 Reprisals, 10, 407-413 authority for, 412 capitulations, breach of, for, 396 cultural property, against, 345, 410, 33 discontinuance of, 413 flag of truce, abuse of, for, 385 form of, 412 "genuine," 411, n. 35 illegal war in, 407, n. 22 pretext for, as, 408-409 individuals, acts of, for, 410 meaning of, 10, 407 neutrals, affecting, 410, 583 occupied territories, in inhabitants, against, 171, 409-410 inhabitants, by, 267 peace treaty, to enforce, 600 prisoners of war, against, 103, 3 1 7 318, 409, 410, 413 procedure before, 411 property, enemy, against, 284 prophylactic, 169, 417 protected persons, against, 171, 410 reprisals, against, 413

Index

720 Reprisals (Cont'd) shipwrecked, against, 92, 409, 410 "so-called," 411, n. 35 subjects of, 409-410 uncivilized peoples, against, 31, 412, n. 40 wounded, sick, etc., against, 92, 409, 410 Requisitions. See also Angary; Railroads bombardments enforcing, 338 insurgents, by, of foreign property, 620 naval forces, by, 305, 338 occupied territories, in, 275, 294, n. 81, 306, 308, 345, 581-582 authority for, 302 foreign nationals, from, 303, 580, 581-582, 658 payment for, 302-303 procedure for, 303 rules for, 300-303 provisions, of, from enemy civilians, 286 Rescue craft, coastal, 83 identification of, 91 installations of, 83 Residence, assigned, of protected persons, 50-51, 254 Resistance, wars of, 54, n. 8, 625. See also Armed conflict not of an international character Resistance movements, 58. See also Governments not recognized; Guerrillas legality of, 60-62, 417 occupied territories, in, 58, 61, 265266, 289 prisoner of war status of, g8, 99 wounded and sick of, 73 Ressortissant, 572, n. 167 Retained medical personnel. See Medical personnel Retroactive {ex post facto) law, 245, 246, 434, 467, n. 233 Rhineland, occupation (World W a r I) of, 210 Rocket projectiles: legality of, 365 long-range, 359, 366 nuclear warheads, with, 367 River craft, in occupied territories, seizure of, 297 Roerich pact, property protected by, marking of, 348 Roosevelt, F. D., on hostages, 416 Ruses of war: lawful, examples of, 319-322 unlawful, examples of, 320

Ruses of W a r (Cont'd) use of, 318-322 Russia. See Soviet Russia

S.S., a criminal organization, 474, 482, n. 294 Saavedra Lamas treaty, neutrality under, 519-521 Saboteurs, occupied territories, in: detention of, 159 punishment of, 248 uniformed troops as, 54 Safe-conducts, 397, 399 civilian internee shipments, for, 185 prisoner of war shipments, 128 goods, for, 398 Safeguards, 399 Safety zones and localities: establishment of, 161-162, 342 marking of, 347 Sanctions, for laws of war, 9, 403 f. Saws, as weapons, 354 Scelle, on aggression, 446, n. 135 Science, works of, enemy, 289, 307, 34034' Scorched earth policy, 285, n. 37 Securities, realiazble, of enemy state, 290 Self-defense: Paris pact, 1928, under, 518 United Nations members, of, 27-28, 523 war crimes, in plea of, 487 Ships. See also Boats; Hospital ships; Vessels merchant enemy, crews of, g8, n. 12 neutral, crews of, 659, n. 15 occupied territories, in, seizure of, 297 religious, scientific, philanthropic missions, on, 98, n. 11, 299 requisition under right of angary of, 581-583 Shipwreck, meaning of, 72 Shipwrecked: neutral territory, landed in, 566-568 neutral vessels and aircraft, on board, 566, 567 prisoners of war, as, 99 protection of, 72, 162 reprisals against, 92, 409, 410 Shotguns, 299, 354 Sick. See W o u n d e d Siege: blockade distinguished from, 349 evacuation during, 163, 349-350

Index

721

Siege (Cont'd) passage of medical and religious aid during, 163, 349-350 property protected in, 284, 340-341, 346 Sign, distinctive, of irregular armed forces, 59-60 Slave labor, 269, 273, 497, 498 Smoke screens, 359 Solferino, battle of, 67 Somalia, British occupation of, 210 Sovereignty, usurpation of, 215, n. 24 Soviet Russia: civil and colonial war, on, 621 declaration of war by, 35 repatriation of war prisoners, on, 613 treaty reservations by Geneva Convention I, 1949, to, 71 Geneva Convention III, 1949, to, 102, 133 Geneva Convention IV, 1949, to, 161 Geneva Gas Protocol, 1925, to, 358 Genocide Convention, 1948, to, 204 Space missiles, 367, n. 212 Space platforms, 366, 536 Space satellites, of belligerents, 536 Spanish Civil War, 1935-1939, 324 Spears, 299 Spies. See also Espionage; Intelligence; War treason definitions of, 326-327 exchange of, 148 immunity of, 329, 658, n. 12 occupied territories, in detention of, 159 punishment of, 248, 328-329 own country, against, 329 treatment of, 329 uniformed soldiers as, 327-328 Spoliation, offense of, 294, n. 81, 310 Sponsions, 394. See also Capitulations State, heads of. See Heads of state Stimson Doctrine, 598 Straits: mines in, 365 neutralized character of, 528-529 Subjugation, 600-603 aggression, by, 601-602 cession distinguished from, 602 conquest distinguished from, 602, n. 69 nature of, 600-601 occupation distinguished from, 601 resistance after, 602-603 Subversion, as means of war, 324

215,

Suez Canal, 528-529 Superior orders: obedience to, by soldiers, 492-493, 501 plea of, 409, 490-496 court rulings on, 441 mitigation, as, 490-496 moral choice, test of, 493-494, 498 necessity, personal, defense of, compared with, 501-502 Nuremberg Tribunal, to, 440-442 war crimes, as defense to, 490-496 transmission of, as war crime, 495, n. 35i Supply contractors: prisoners of war, as, 98 wounded and sick, 73 Suspensions of arms, 74-75, 386, 387 Swords, 299 Surrenders. See also Capitulations defended places, of, 338 simple, 386, n. 34, 393 Switzerland, a neutralized state, 527-528 Systematic conduct: evidence of, 485-486 group, members of, by, 486 "Tallboy" bomb, 368 Target-area bombing, 335-337 atomic bombs compared with, 371-372 Taylor, Telford, on Nuremberg trials, 427. 452 Tear gas, 359, n. 186 Telegraphic charges: internees, civilian, of, 184 prisoner of war agencies, of, 151 prisoners of war, of, 126, 128 protected persons, agencies for, of, 194 Telegraphic secrecy in World War I, 543, n. 38 Telegraphic Union, International Bureau of, note of, on secrecy, 543 Terrorist activities, 458 Tokyo Judgment: authority of, 445, n. 129 Nuremberg Judgment affirmed by, 425 Tokyo Tribunal: constitution of, 424-425, 430, n. 68 evidence, rules of, 509-510 procedure of, 508 Torpedoes, 364 Total war, 53, 154 Town: assault, taken by, 284, 351 open, 332 Trade unions, occupied territories, in, 273-274

722 Trading with the Enemy Act: British, 576, n. 182 United States, 576, n. 183 Train wrecking, 318 Traitors. See also Defectors; Deserters; War traitors; War treason peace treaty terms re, 596 unwarranted prosecution as, 330, n. 69 Transportation: enemy, seizure of, 291, 296 requisitioned, capture of, 86 Treachery, use of, 317, 319, 320, 324 Treaties, as source of law of war, 5-6 Troops: foreign, in friendly territories. See Friendly territories private gain by, 235, 282 propaganda, engaged in, 325 Trophies, war, 282 Truce: flag of, 380 deserters under, 99, 384 improper use of, 320-321, 325, 384385 meaning of, 386 Truman, on Nuremberg Tribunal charter, 445 Trust territories, 205 UNESCO, cultural property, protection of, by, 343, 344, 623, n. 16 Ultimatum, 36-37 Uncivilized peoples, war with, 30-32, 412, n. 40 Undefended places: bombardment of, 332 f., 338, 339 meaning of, 332 Uniforms: enemy, use of, 320-321 irregular armed forces, of, 59-60 United Kingdom, treaty reservations by Geneva Convention IV, 1949, to, 249 Geneva Gas Protocol, 1925, to, 358 United Nations, 11 Charter of civil and colonial war re, 28-29, 619, 621, 626 ex-enemy states (World War II), action against, under, 28, 523 neutrality under, 522-526, 527-528 neutralized state re, 527 regional arrangements under, 28 violations by individuals of, 29 war legal under, 24-29, 41, 523-524 Commission for Conventional Armaments, 374

Index United Nations (Cont'd) Commission on Atomic Energy, 373, 375 Committee on International Criminal Jurisdiction, 10, n. 21, 505, n. 400 enforcement action by, 9-10, 24-26 regional agencies, through, 28 General Assembly embargo by, 529 Nuremberg principles, on, 22, 423424 recommendations of, 43 repatriation of war prisoners, on, 613, n. 114 Uniting for Peace resolution of, 27, 42-43. 407. 523 genocide, action against, by, 203 International Law Commission, 21-22, 421, ns. 14, 17, 422, n. 20, 424, 444, 447 intervention re violations in war by, 406-407 Korean war, in, 9-10, 340, 525-526 members, obligations in enforcement actions of, 521, 525 nonmembers, neutrality of, 522-523 purpose of, 203 Security Council aggression, duty re, 41 deadlock in, 27, 523 just or unjust war determined by, 42 veto on action by, 16, 26-27, 42, 523 United Nations Conference, San Francisco, 1945, 527, n. 54 United Nations War Crimes Commission, records of, 418 United States: Instructions to Armies in the Field (General Orders No. 100), 1863, 109, n. 56, 442, n. 119 Lend-Lease Act, 519, 584 military commissions Far East, in, 427 procedure of, 505 military tribunals, Nuremberg, procedure of, 505 neutrality in World War II of, 518-519 neutrality legislation of, 534, 547, 552, 553. Senate-House Atomic Energy Subcommittee, on fall-out, 377, n. 256 Supreme Court, 7 treaty reservations by Geneva Convention IV, 1949, to, 249 Genocide Convention, 1948, to, 204

Index Uniting for Peace resolution. See United Nations General Assembly Universal Postal Union, 184 Universality of jurisdiction, 14-15, 93, 153, 196, 429-430, 503, 554, n. 89. See also War crimes, jurisdiction Usages of war. See Customs Uti possidetis, rule of, 604, 608 V - i bomb, 359, 367 V-2 rocket, 359, 365, 367 Vessels protected from capture, 98, n. 11, 299. See also Boats; Hospital ships; Ships Volunteer corps: prisoners of war, as, 97 status of, 58 wounded and sick of, 73 War: ancient, 3-4 conduct of, basic principles, 313 commencement of, date, 38 customs of, 4-5 declaration of. See Declaration defined, 17 function of, 16, 20, 315, 353, 363 ideological, 225, 323 illegal. See also Aggression; Peace, crimes against; War, just and unjust initiation of, 455 regulation of, 9, 453-454, 599 valid acts of aggressor in, 599 instrument of national policy, as, 1617 just and unjust, 39 f., 432. See also War, illegal determination of, 42 neutrality in, 516 occupation, effect on, 266, n. 181 Soviet view, a, 41 object of, 281, 314, 315 partisan resistance as, 54, n. 8, 625 restraints in, development of, 4 since 1945, 18 termination of, 587 f. cessation of hostilities, by, 603-604 declaration, by, 603 effects of, 604-613 peace treaty, by, 588-600 subjugation, by, 600-603 undeclared, 38, 45, 68, 97, 157, 344 neutrality in, 531 usages of, 4-5 waging, right of, 39 f.

723 War correspondents, 73, 98 War crimes. See also Aggression; Biological experiments; Criminal organizations; Genocide; Humanity, crimes against; Peace, crimes against abuse of confidence, 295, n. 83 amnesty for, 593-596 air warfare, re, 352-353 arrests, illegal, 171, 417 attempted, 421, 468, 469 capitulations, breach of, 396 categories of, 420-421 compensation for, 404-405, 580, 592593- 595 complicity in, 421, 468, 469, 470-471, 510 conspiracy to commit, 421, 436, 471, 476-477 conventional civilians, against, 465 civilians, by, 464 defined, 419, 420, 463-464 examples of, 465 f. location of, 464-465 conviction for, personal guilt necessary, 488-489 courts, 10, 93, 132-133, 153, 196, 430432, 502-511 judges of, 14, 423, 425, 430-432. 5°4 defenses to, 421, 486-487, 490-502, 593 £• defined, 419 denunciations as, 470-471 deportation of civilians, 268-269, 461, n. 191 enslavement, 269, 273, 497, 498 hostages, killing of, 416 incitement to, 421, 468 jurisdiction re, 14-15, 93, 153, 196, 403-404, 421, 429-430, 503, 554, n. 89 labor, forced, 269, 273, 497, 498 noncombatant, hostilities by, 53 property, destruction and seizure of, 93, 196, 280, 294 punishment of, 420, 422, 508. See also War crimes, jurisdiction United Nations, by, 29 World War X crimes, 418, 431 World War II crimes, 418 f. religious rights, invasion of, 466 reprisals, unlawful, 415-417 slave labor, 269, 273, 497, 498 transmitting illegal orders, 495, n. 351 treacherous acts. See Treachery treason, unwarranted prosecution for, 330, n. 69

Index

724 W a r crimes (Cont'd) trial of, 10, 93, 132-133, 153, 196, 430,

43*. 5 ° 2 - 5 1 1 . 593-596 appeal and review of, 508, 511 burden of proof in, 510-511 contumacy in, 506 defense counsel in, 507 evidence in, 469, 506-507, 508-511 in absentia, 506, n. 404 in camera, 506, n. 403 judgments in, 507, 511 judicial notice in, 507 procedure, 93, 153, 502-511 venue, 426, 502-503 witnesses, privilege of, 510 victorious belligerent side, of, 403-404, 421. See also W a r crimes, jurisdiction W a r criminals, 449-450, 452, 461, 462, 482 major and minor, 418 W a r guilt, 432 W a r material: meaning of, 296, 548, n. 67 occupied territories, in, privatelyowned, 296-300 W a r traitors, exchange of, 148 W a r treason, 327, 330-332, 467. See also Espionage; Intelligence; Spies; W a r traitors acts of, 467 assisting, 331-332 immunity for, 329, 331 meaning of, 330 punishment of, 331 trial of, 331 Warships, belligerents, of: escape of war prisoners from, 561-562, 567, n. 141 fitting-out in

neutral

territory

of,

549 Washington Conference on Limitation of Armaments, 1921-1922, 351, 356 Water: contamination of, 316-317 deprivation of, 316 Weapons. See also Atomic; Bacteriological; Bombs; Bullets; Fire; Gas; Hydrogen; Mines; Napalm; Projectiles; Radiological; Rocket blind, 366

Weapons (Cont'd) causing needless suffering, 315,

316,

359 legality of, principles, 359-360 limitations on, 353 mass destruction, of, elimination

373-374. 375

of,

Welfare services for armed forces, status of, 73, 98 Wellington, Duke of, on occupation law, 219. 33 Wireless. See also R a d i o telegraphy stations, neutral, use by belligerents of, 541 Women: armed forces, of, wounded and sick, 74 pregnant. See Mothers, expectant prisoners of war punishment of, 134, 138, 141 treatment of, 104 protected persons, imprisonment of, 253 protection of, 47, 168 spies, 329 war crimes of, 487 war traitors, 331 W o r l d W a r I, armistice, restitution of captured property in, 310 W o u n d e d and sick. See also Neutral territory; Prisoners of war armed forces, of abandoned, care of, 74 categories protected by Geneva Convention I, 1949, 72-73 identification of, 75 inhabitants, care by, of, 75-76 prisoners of war, 74, 99, 562, n. 127,

564 protection of, 73-76, 163, 315, 349, 396, 622 removal by sea of, 75 reprisals against, 92, 409, 410 rights of, no renunciation by, 70 search for, 74-75 capitulations, in, 396 civil and colonial wars, in, 622 civilian, 163, 349, 396, 622 Wright, Lord, on aggression, 41 Zone fire, 336, n. 91 Zone of security, neutral, 521