The Chinese Journal of International Politics

The Chinese Journal of International Politics 2006 1(2):267-301; doi:10.1093/cjip/pol017

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Reproduced from the Science of International Politics, with kind permission of the authors and the Institute of International Studies, Tsinghua University.

The Evolution of Law of War

Sheng Hongsheng^*

* Corresponding author. Email: adamsheng{at}163.com

	Idea of Law of War

Top Idea of Law of... Vestiges of Law of... Law of War after... Law of War Safeguarded... New Developments in Law... Conclusion

 
It is generally concluded that since time immemorial war may have existed, but the nature of war is nonetheless an issue that continues to perplex humankind. In ancient times, each state had its own theories and perceptions of how the nature of war should be defined. For example, in ancient Greece, ‘waging war against barbarians is considered just’.¹ It was Saint Augustine (354–430 A.D.), a representative Christian figure in ancient Rome, and Saint Thomas Aquinas (1225–1274 A.D.), renowned Medieval theologian, who first put forward just war doctrine. To their mind there were so-called ‘three principles’ that govern the prerequisites for the initiation of war, namely, the authoritativeness of the initiator of war, just reasons for waging war, and the legitimate intentions of war.² Hugo Grotius later expanded upon the concept of just war, and it eventually became one of the sources of modern law of war. Inspired by natural law and elaborated upon by theologians, just war doctrine consistently held prestige within French legal writings, and when the 16th century ended, it was codified by Spanish jurists such as Francisco de Vitoria and Francisco Suárez. Just war doctrine regards war as neither a fortuitous event nor a simplistic fact, but a procedure through which to resolve international conflict. A just war must accord with four conditions: (1) in the name of justice—that is, a war can only be waged by a legitimate public authority, consequently private wars in the Middle Ages were condemned; (2) a just cause—that is, a reason predicated upon what is just, but also justifies the damages caused by war; (3) necessity—there are no other means by which justice can be achieved; and (4) appropriate conduct—that is, war must be conducted in a manner appropriate for the renewed restoration of order and peace.³

When discussing the laws of armed conflict, most Chinese international lawyers focus on the question of a just war versus an unjust war, but their Western counterparts do not. They do not judge the nature of war; their discussions are limited to the necessity for and manner of application of the laws of armed conflict. The view of the International Committee of the Red Cross (ICRC), a key initiator, promoter, and the guardian of international humanitarian law, on this question is that the purpose of international humanitarian law in protecting and assisting war victims is to constrain the damages and suffering caused by warfare. International humanitarian law, therefore, seeks to resolve the practical problems of armed conflict rather than the reasons for or legality of resorting to armed force. The provisions of international humanitarian law are applicable to all wars, regardless of causes or whether or not the actions taken by either or both sides are just. The standards by which aspects of armed conflict are assessed in international humanitarian law stem exclusively from humanitarianism—the so-called ‘law in time of war’. Nowadays, at times of international armed conflict, it is often difficult to determine which states are in violation of the United Nations Charter. Application of international humanitarian law does not involve condemnation of the transgressing Power at times of war, because the ensuing controversy, where all parties concerned would claim to be the victims of aggression, would put the law into a state of paralysis. Moreover, the purpose of international humanitarian law is to protect the victims of war and their basic rights, regardless of which side they are on. This is why it is necessary to differentiate ‘jus in bello’ (law in war), ‘jus ad bellum’ (law on the use of force) and ‘jus contra bellum’ (law on the prevention of war).⁴ To determine the nature of war has already exceeded the scope of the laws of armed conflict, in accordance with the ICRC. It is considered that the fundamental objective of the laws of armed conflict is to provide war victims with a minimum level of protection. International humanitarian law should be applicable to all belligerent parties, regardless of the origins of the conflict. The essence of this principle of universal application is in ancient international law. For example, ‘In history and international relations of ancient India, one will not find differences between believers and non-believers. Even when both are involved in a life-and-death struggle, no one will raise the question of whether it is a "just war" or an "unjust war". Dharma clearly states that during any time and under any circumstances, all belligerent parties must adhere to publicly acknowledged law of war. The universal application of such laws is an important contribution to international law made by ancient India’.⁵ Any difference in the respective treatment of belligerent parties, therefore, would negate the existing moral premise upon which international humanitarian law is based and, as such, is incompatible with the basic tenet of the laws of armed conflict.

Since its inception, the laws of armed conflict has been struggling to survive and develop within the narrow space between ‘the right of a State to resort to war’ and ‘the efforts by the laws of armed conflict to provide a minimum level of protection to war victims’—in other words, between the principles of ‘military necessity’ and ‘humanitarianism’. When commenting on the essence of war, Prussian military philosopher Carl von Clausewitz held that, ‘War is a kind of violent action, and the use of violence is without limits’.⁶ Restricted as it is by international politics, the laws of armed conflict have limited room to maneuvre. From a theoretical perspective, international law has abolished war, but a majority of wars or armed conflicts actually occurring do not adhere to the two circumstances under which the use of force is lawful, stipulated by the United Nations Charter. Today, the international community faces a dilemma between a State's right to resort to war and the idea of the law of war. Resorting to war remains a State's inherent right until it is officially renunciated, and the ultimate ideal of war, according to a general law concerning the use of armed force, is to eliminate an enemy while preserving oneself. The idea behind the laws of armed conflict, on the other hand, is to limit the brutality of war by providing impartial treatment and a minimum level of protection to all war victims, regardless of what side they are on. If international law could be considered as ‘weak law’, the laws of armed conflict as a branch of it are even more subtle and vulnerable. One clear instance is that in international relations, when acts that seriously contravene standard conduct under international law (e.g., aggression) occur, the situation will leave a State no remedial course of action other than individual or collective self-defense, rather than restoring its legal status prior to aggression the assistance by ‘international police’ or ‘international armed force’. The unique legal structure of the laws of armed conflict, however, differs from that of other laws by virtue of encompassing ‘assumptions’ (it states the conditions necessary for application of its norms); ‘procedures’ (basic requisites for standardized acts); but no ‘punishment’ (there are no provisions for standard legal consequences of violating the law aforementioned).⁷ The legal consequences of violating prohibitions set forth in the laws of armed conflict are instead left to international criminal law and international criminal justice. For instance, ‘The Hague Conventions of 1899 and 1907 as well as the Geneva Convention of July 27, 1929 regarding the Treatment of Prisoners of War, neither of the above contain provisions that penalize individuals for acts in violation of the treaties. Only Article 30 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, July 27, 1929, bears a brief provision in this regard’.⁸

As the means of regulating social conduct under extreme and unique circumstances, the entire philosophical foundation and legislative purposes upon which the laws of armed conflict are based—lie in the distinction between combatants and non-combatants (like civilians) or those no longer able to engage in warfare (such as prisoners of war, the wounded and the sick), thereby minimizing the gravity of violence to what is sufficient, to achieve the aim of war (regardless of the causes of war), and to the extent that enemy forces are weakened. As earlier elaborated upon, in general, the basic principles of the laws of armed conflict include: humanity, necessity, proportionality, distinction, prohibition of causing unnecessary suffering, and independence of ius in bello from ius ad bellum. The intrinsic flaws of the laws of armed conflict are obvious—it does not prohibit the use of violence; it is unable to protect all those affected by armed conflict; it is unable to distinguish how the law should be applied according to the aims of armed conflict; it is unable to prevent the defeat of one side by another during war—assuming that belligerent parties have rational reasons for going to war. To some extent, these demerits undermine the effectiveness and usefulness of the laws of armed conflict.

Recalling the history of human society, international battlefields, in some sense, were the cradle of international law.⁹ In other words, international law originated in warfare. The ancient Greek philosopher Plato believed that war is a normal condition between nations and that peace is a degenerate state.¹⁰ Marcus Tullius Cicero, great thinker of ancient Rome, denied the existence of the law of war¹¹, while other legal theorists were of the opinion that, ‘where there is society there is law’.¹² It is generally believed that ‘even wars have limits’,¹³ otherwise, in the realm of societal relations as unique as that of war, a state of legal vacuity and lawlessness is bound to emerge. Over the course of history, this school of thought has gradually become more widely accepted. War is a unique societal phenomenon wherein the belligerent parties involved make every effort to utilize violence without constraint. This type of ‘endless expansion of evil’ does not, in actuality, help to achieve the aim of war. Consequently, wars have given rise to various rules that limit the extent of violence in warfare and which have, in turn, created the logic upon which law of war emerged.

	Vestiges of Law of War in Ancient Times and Emergence of Modern Law of War

Top Idea of Law of... Vestiges of Law of... Law of War after... Law of War Safeguarded... New Developments in Law... Conclusion

 
International law originated in war, and vestiges of conduct norms relating to war can be found in almost every ancient civilization. In 546 A.D., during the Chunqiu Period of ancient China, feudal lords of various States organized the first conference ever on mibing (elimination of war) and qvbing (disarmament)¹⁴ in the State of Song. During the Warring States period, rules existed amongst all the seven feudal States (also known as the ‘Seven Powers’) regarding declaration of war, conclusion of a peace, favorable treatment for prisoners of war¹⁵, but also specific rules applicable in war, such as ‘non-pursuing a fleeing enemy army’, ‘no use of ruses’, ‘non-attacking on a mourning State’, ‘prohibition on surprise attack’, ‘no severely injuring’ and ‘no capture of the elderly’.¹⁶ Although these rules applied to each of the warring States, not all of them were strictly adhered. Sima Qian wrote about the Battle in Changping (250 B.C.) where the King of Qin defeated the State of Zhao. The Zhao nationals surrendered to the Qin army, yet the King of Qin immediately ordered the live burial of as many as 400,000 prisoners of war, violating the promise to spare their lives.¹⁷ Even so, it must be remembered that these rules and regulations were very primitive and hardly set in stone. Moreover, the feudal States at that time were not the same as States in the general sense because they did not constitute a true international community. When taking into consideration the particular situation of ancient China, it is open to question whether or not the rules observed can be construed as ‘international law’,¹⁸ but they can most certainly be seen as historical antecedents to the ancient law of war. In other areas of the world, in common with ancient China, there were a variety of rules regarding warfare. For example, in Egypt, Babylon, India, ancient Greece and Rome, there are documented records of rules of engagement in warfare, such as prohibition on using concealed, barbed or poisoned weapons, no attacking on fleeing, surrendered enemy forces, or those who put down their weapons, and prohibition on poisoning drinking water.¹⁹

In ancient times, war was generally regarded as a natural state. During the Middle Ages, it was the main feature of dispute over rights, and the use of armed forces during conflict was considered a kind of evidence which could be submitted to a court. If it were to be said that only the legality of war was considered in ancient times, on the same premise, (as related to the procedure through which war was declared) by the Middle Ages more and more attention was paid to demonstrating the justness of war. Feudal, separatist regimes caused extensive wars that, during the 11th and 12th centuries, engendered great, ongoing efforts to limit the expansion of warfare or even more to abolish war. A rule emerged step by step that war could be declared and conducted only by the head of State (the sole person entitled to do so), but that there must also exist legitimate and justified reasons for war. The reasons stipulated in the law were presumably for reasons of reclamation of rightful property and safeguarding the homeland. It was demanded that declaration of war was necessary and acknowledged. All men were eligible as combatants (fighters). During the initial wars of this era, there were no limitations on the means of warfare. It was with the onset of the use of guns and cannon that attempts to impose restrictions on them were made. In 1139, for example, at the Second Lateran Council, an attempt to prohibit the use of long-range catapults and crossbows was made, but this effort soon failed. The people of the Middle Ages also constantly sought to impose restrictions upon the time when war could be conducted, which resulted in the so-called ‘peace of God’ or ‘holiday of God’. The institution of neutrality also slowly developed throughout the Middle Ages. Between the 14th and 15th centuries, treaties containing provisions on neutrality were signed, the earliest being the one between the Duke of Lorraine and the Duke of Bavaria in 1322. Initially, neutrality meant one party's refusal to aid either of the belligerents; it was not until later that it included the stipulation stating an obligation that the neutral subject and the belligerents should not attack or cause breach of neutrality. Such neutrality means that a Neutral does not provide military assistance to either of the warring parties, but neither prohibits the army of either side from passage or stationing in neutral territory, nor prohibit from providing either side with diplomatic and other forms of non-military aid. As regards to law of war at sea institution related to prize and privateering also achieved a certain level of development. The focus of naval war was on destroying enemy trade and transport connections, and widespread plundering at sea gave impetus to the development of ‘prize law’. Lawful prize is defined along very broad lines. In addition to the prize of enemy ships and enemy goods, it includes prized ships and goods of neutral States. Prize law also prohibits the trading of goods with the enemy or transporting goods on behalf of (or to) the enemy. These stringent regulations were seldom met, but nevertheless exerted limitation upon maritime libertine conduct. In the 14th century, the ‘prize law’ was incorporated into ‘Maritime Code’. This code also includes a provision on returning what is captured; it states that prized ships must be returned to their rightful owners, and also that it is only at the point where prized ships have been taken to the port of the captor's native State or to the port of another ‘dependable location’ that the reality of the prize is acknowledged. The institution of privateering also gradually entered the ambit of internal law. In the 13th to 14th centuries, decrees were issued outlining a method of granting permits to privateers that would render them legitimate seafarers. The order, issued by Alfonso III (King of Aragon) in 1228, is considered to be the first-ever decree to address privateering. A century or so later when similar laws were in force in other States came the establishment of prize courts (for example, France's edict of 1373, and the English Parliamentary decree of 1414).²⁰ Warfare in the Middle Ages was extraordinarily brutal, yet rules governing warfare were still at a developmental stage. The works of many scholars give systematic descriptions of the rules of war, notably De Jure Belli ac Pacis (On the Law of War and Peace) by international law pioneer Hugo Grotius, in which he comprehensively summarizes the traditional concepts and rules of warfare, as well as those of the Middle Ages.

There was a popular preoccupation with rules relating to war itself in the era preceding the entry of gunpowder based arms into warfare. As human society entered the era of firearms, advanced science and technology accelerated the advent of new means of war (and weaponry), their increased killing potential considerably intensified the brutality of war. In order to limit the means and methods of warfare, the conduct of all warring entities was standardized, thereby decreasing the destructive gravity of war. After much hard work on the part of the international community, a series of international instruments were formulated at the end of the 19th century, one of them was the Declaration of Paris in 1856, and the compilation of the laws of armed conflict entered a new phase. After the Declaration of St. Petersburg in 1869, The Hague Peace Conferences of 1899 and 1907 and their respective conventions, the Geneva Protocol of 1925, the Geneva Convention of 1929, the four Geneva Conventions of 1949 and the two Additional Protocols of 1977, the laws of armed conflict had progressively developed into the most accomplished branch within the system of international law. As commented upon by a Western scholar, ‘In the last years of the 19th century, legal empiricism and the perception of national sovereignty had occupied the dominant position within the idea of international law. This led to the widespread codification of law of war, which is the earliest area of international law where codification was achieved’.²¹

French Enlightenment philosopher Jean Jacques Rousseau is one of the earliest Western scholars to analyse the nature of war from a theoretical standpoint. In his book, The Social Contract of 1762, he points out that: ‘War is not between individuals, it is between States. In war, the accidental enmity among individuals that occurs is not because they are acting in their capacity of an individual, but in that of a citizen. They are not acting as elements of their State but rather as its protectors’.²² Also, as affirmed by an Italian scholar, ‘Already in the Ordinance for the Government of the Army, published in 1386 by King Richard II of England, limits were established to the conduct of hostilities and—on pain of death—acts of violence against women and unarmed priests, the burning of houses and the desecration of churches were prohibited. Provisions of the same nature were included in the codes issued by Ferdinand of Hungary in 1526, by Emperor Maximilian II in 1570 (humanitarian rules are found in Articles 8 and 9) and by King Gustavus II Adolphus of Sweden in 1621. Article 100 of the Articles of War decreed by Gustavus II Adolphus established that no man should ‘tyrannise over any Churchman, or aged people, Men or Women, Maydes or Children’.²³ Providing needed humanitarian aid to war victims and compiling widely accepted humanitarian norms is a phenomenon whose origins are in remote antiquity. There are specific references to the concept in various philosophical writings emanating from different cultures and in the speeches of enlightened monarchs. Contemporary notions of humanitarianism originate in ‘A Memory of Solferino’, written by Henri Dunant in 1862, and the founding of the International Committee of the Red Cross.²⁴ Much of the development of the laws of armed conflict occurred under the influence of humanitarian ideals, manifest in the series of international conferences that took place at the end of the 19th century, which acted as impetus towards the compilation of the laws of armed conflict. Notable provisions of the 1856 Declaration of Paris are: privateering is, and remains, abolished; the neutral flag covers enemy goods, with an exception of war contraband; neutral goods, with the exception of war contraband, are not liable to prize under the enemy flag; in order to be binding, blockades must be effective, that is, they must be maintained by forces sufficient to prevent access to the enemy coast. The two Hague Peace Conferences had a great impact upon the formation of laws of war. The First Hague Peace Conference of May 18, 1899 convened at The Hague in the Netherlands with 26 participating States, was so-called because its official purpose was ‘to limit arms and to safeguard peace’. The Second Hague Peace Conference of 1906–1907 called by Russia and the US drew on the experience and lessons of the 1899 conference, and convening States concentrated on the issue of laws of war. The treaty that was adopted during this conference replaced the decision reached at the 1899 Peace Conference. The Second Hague Peace Conference passed the Declaration on Prohibiting the Launching of Projectiles and Explosives from Balloons, Final Act, as well as 13 other conventions. The areas and issues covered by these aforementioned instruments are extensive but fall under two categories: (1) adjustment of laws concerning peaceful settlement of international disputes (the first and second conventions); and (2) procedures for the opening of hostilities (the third convention), laws and customs of war on land (the fourth and fifth conventions) and rules concerning the conducting of naval war (the sixth to thirteenth conventions). The Third Hague convention stipulates that, ‘unless there is advanced and explicit warning’, hostilities cannot commence. The Contracting Powers recognize that warning can take the form of either a reasoned declaration of war or an ultimatum. Under this reservation clause, the humanitarian stipulations of each of the remaining conventions suffered huge limitations. In cases of laws and customs of war on land, the most important clause within the annex to the Fourth Hague Convention is the distinction between ‘combatant’ and ‘non-combatant’. Civilians have the right to take up arms in resistance (but on the condition that ‘arms must be openly carried and the laws and customs of war must be respected’). In addition, any person captured by the enemy enjoys the rights applicable to prisoners of war. The legal status of a prisoner of war is stipulated in great detail (Article 4): ‘Prisoners of war are in the power of the hostile government and not in the power of the individual or the corps that captured them. They must be treated humanely. All their personal belongings, with the exception of arms, horses and military papers, remain their property.’ Prisoners of war utilized in labor, ‘must be done so according to their rank and aptitude’, and ‘officers are excepted’. This kind of labor should not be ‘excessive’ and should be paid a wage. The wage, ‘should be paid according to the same standards as those of soldiers in the national army’. Officers taken prisoner shall receive, ‘the same pay as officers of corresponding rank within the state where they are detained’. The soldiers and others accompanying and serving the army in an official capacity, mobile medical units, hospital and medical personnel shall all receive humane treatment and protection from all belligerent states. When captured, they shall be treated according to the standards of international law.²⁵ Provisions regarding the methods of war include: prohibition on the destruction or confiscation of enemy property, ‘unless the destruction or confiscation in question is required by the necessities of war, and where there are no alternatives’; prohibition on killing those that have surrendered and declaring that ‘no quarter will be given’ (Article 23). The conventions request that commanding officers take all possible measures to protect cultural and historical landmarks as well as medical facilities (Article 27). The pillage of a town or place, even when taken by assault, is prohibited (Article 28). During occupation, the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the State (Article 43); private property cannot be confiscated (Article 46); pillage is formally forbidden (Article 47), but ‘if, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound’ (Article 48); no contribution shall be collected except under a written order, (Article 51); nothing more than the enemy's ready money, reserve funds, bonds and other property used for war can be confiscated (Article 53); The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied State. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct (Article 55). With regard to laws governing neutrality, the Fifth Hague Convention of 1907 stipulates that, the territory of neutral Powers is inviolable (Article 1). Belligerents are likewise forbidden to: (a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea; (b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages (Article 3); Every measure of restriction or prohibition taken by a neutral Power in regard to the matters referred to in Articles 7 and 8 must be impartially applied by it to both belligerents, and ‘A neutral Power must see to the same obligation being observed by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus’ (Article 9). In addition, the use of force by a neutral Power in resisting attempts to violate its neutrality shall not be regarded as a hostile act. In terms of naval war, there are eight Hague conventions with related provisions. The main problems addressed include: the conversion of merchant ships into warships; the status of enemy merchant ships at the outbreak of hostilities; the laying of submarine mines and the bombardment by naval force; application of the Geneva Convention principles to naval war; the issue of injured and sick persons; the exercising of the right to prize; the creation of an international prize court and the rights and obligations of neutral Powers during naval war; etc. These conventions carry a series of supplemental provisions pertaining to the peculiarities of naval war, but they are essentially in line with the basic principles underlying the conventions regarding war on land. During the London Naval Conference of 1908–1909, the Hague Conventions were supplemented and written into the Declaration concerning the Laws of Naval War adopted at the Conference. This declaration settled the issues of blockades, legal norms regarding wartime embargoes and the procedure for neutral Powers in aiding belligerents. The declaration also touched upon other more concrete issues, such as the changing of flags on ships, the difference in nature between the cargo of neutral Powers and that of the enemy, convoys and indemnities, etc. These rules were very successful and remained effective through the entire 20th century. Although many States signed the Declaration of London, it was not ratified by a number sufficient to make it go into effect officially.²⁶

The key points within this entire stage of development of the laws of war indicate that, on the one hand, States refused to give up their right to resort to war, and on the other hand, new inventions and achievements in science and technology in the wake of the industrial revolution were rapidly applied to military affairs. The brutality arising from war increased in tandem with the increased killing potential of weapons. At the same time, under the influence of natural law which states that ‘the validity of international law is rooted in human rationality and conscience’, humanism and idealistic notions of international politics gained the upper hand, spurring the development of the laws of war of antiquity into a consummate modern system.

	Law of War after World War II

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The two World Wars were catastrophic events in human society. All the belligerent Powers that engaged in these wars violated the laws of armed conflict. At the end of World War II, and in order to adapt to changing circumstances, representatives of a large number of States converged in Geneva, on the recommendation of the ICRC, for a diplomatic conference wherein to deliberate on the formulation and regulation of new laws on wartime conduct. On August 12, 1949, 63 States signed the new Geneva Conventions which went into force on October 1, 1950. They are collectively called the Four Geneva Conventions of 1949 Relative to the Protection of War Victims, including the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (First Geneva Convention); the Geneva Convention for the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (Second Geneva Convention); the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949 (Third Geneva Convention) and the Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Fourth Geneva Convention). The first convention (the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field) was first signed in 1864. In 1906 and 1929, the convention was twice revised and supplemented. In 1949, it was revised for the third time, and now contains 64 articles and two annexes in total. Its main contents cover: affirmation that under any circumstances, the sick and wounded of any belligerent party shall receive impartial and humane treatment; prohibition on the killing, torturing and subjection to biological experimentation of the sick and wounded, or knowingly not giving medical aid or care; the principle that sick and injured persons as well as medical units, medical buildings, medical supplies and medical personnel (marked by the emblem of a red cross on a white background or a red crescent) are inviolable. The second convention (the Geneva Convention for the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea) contains 63 articles and an annex. It is a revision of and supplement to the Tenth Hague Convention of 1907. The characteristics of naval war are incorporated into this convention; it stipulates that the wounded, the sick, medical ships, medical units and their personnel, equipment and vessels must be protected. The convention applies to naval troops only; ground troops should adhere to the rules and regulations of the First Geneva Convention of 1949. The third convention (the Geneva Convention relative to the Treatment of Prisoners of War) contains 143 articles and 5 annexes. It is a revision of and supplement to the eponymous convention of 1929. Finally, the fourth convention (the Geneva Convention relative to the Protection of Civilian Persons in Time of War) is a new convention that comprizes a total of 159 articles and 3 annexes. Its provisions stipulate that: civilians in the power of a belligerent party to the conflict shall receive protection and humane treatment; unfortified cities, towns and villages shall not be destroyed; peaceful inhabitants shall not be killed, coerced, abused or exiled; the person, family, dignity, property, religious beliefs, and social customs of civilians must be respected. The principles and rules included within the Four Geneva Conventions of 1949 are as follows: (1) each convention is applicable not only to all openly declared wars but also to all armed conflicts; in the event of either or both sides’ denying the existence of a state of war, the conventions nonetheless apply. (2) Each convention between the contracting Powers is binding, and when one or more States on one side of a conflict that are not signatories to the treaty accept and use the convention, the convention is then binding among those States and the States that are party to the convention, thus eliminating the restriction imposed by the so-called general participation clause that was previously stipulated within treaties regarding law of war. (3) Each convention is not only applicable to armed conflict that is international in nature, but also to armed conflict that is not international in nature (such as civil wars) and guarantees that the victims of war receive a minimum protection. The main contents of the conventions state that: ‘First, those who do not actually engage in hostilities, including the troops who put down their arms, those who are sick, wounded, or have lost their ability to fight due to internment or some other reason, must be treated humanely under all circumstances and cannot be discriminated against on the basis of race, skin color, religious beliefs, gender, upbringing, wealth or other such factors. Under no circumstances, therefore, may the following actions be taken towards the aforementioned people: (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 people. Second, the sick and wounded shall be collected and cared for (Article 3 common to the Four Geneva Conventions of 1949).

After the signing of the Four Geneva Conventions of 1949, international armed conflicts (especially the occurrence of national liberation movements) exposed faults and failings within them. In order to supplement the Four Geneva Conventions of 1949, the ICRC adopted a resolution at the 21st International Conference of the Red Cross in 1969, at which the plan to add two Protocols²⁷ was drafted. From 1974 to 1977, the Swiss government convened four ‘diplomatic conferences regarding the renewal and development of international humanitarian law applicable in armed conflict’. On June 10, 1977, representatives of all the relevant States gathered together in Geneva and signed the Protocols Additional to the Four Geneva Conventions of 1949 (its full name being ‘Protocols Additional to the Four Geneva Conventions of August 12, 1949’). They are Protocol Additional to the Four Geneva Conventions of August 12, 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I) and the Protocol Additional to the Four Geneva Conventions of August 12, 1949 relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), effective as of 7 December 1978. The first Protocol contains 102 articles and 2 annexes, and is supplementary to the Four Geneva Conventions of 1949 regarding protection for civilians, war victims and combatants, etc. Its main contents include: (1) expansion of the scope of situations to which the convention is applicable to include armed conflicts over colonial domination, alien occupation and racist regimes (Article 1.4), and establishing the legality of such actions (in the spirit of the Charter of the United Nations and the 1970 Declaration on Principles of International Law). If combatants in these situations fall into enemy hands, they should have the same prisoner-of-war status as is applicable in an international armed conflict. (2) Relaxation of the standards regarding the reclassification of guerrilla fighters as legal combatants (Article 43). In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. (Article 44.3). Protocol I also stipulates that: ‘A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed’ (Article 44.4). 3) It places further restrictions on the methods and means of warfare (Articles 35 to 38), the most important provision of which restates the principle that, ‘in any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited’, wherein the phrase ‘armed conflict’ replaces that of ‘war’ as appearing in the annex of the Fourth Hague Convention; Prohibition on the use of weapons, projectiles and methods of warfare of a nature that will cause superfluous harm or unnecessary suffering; prohibition on the use of methods or means of warfare that will cause widespread, long-term and severe damage to the natural environment. Also, as regards the research, development, acquisition or adoption of any new weapon, means or method of warfare, a High Contracting Party is obliged to determine whether or not they—that is, the weapon, means or method—are prohibited by this Protocol or by the laws of war. (4) Increasing the number of provisions regarding the protection of unoccupied territories and civilians, and strengthening protection of civilians. The second Protocol contains 28 articles and includes the basic substance of the first Protocol, but is simple and rather brief; it does not contain that pertaining to ‘the methods and means of warfare’. It is noteworthy that Protocol II was the first international treaty to make law of war providing for the protection of war victims applicable to armed conflict not of an international character (such as civil wars). On one hand, it developed and supplemented Article 3 common to the Four Geneva Conventions of 1949, with regard to the scope of application; but on the other, it also states that, ‘This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts’ (Article 1). In order to prevent the invocation of this Protocol by other States so as to intervene in the internal affairs of a High Contracting Party, the Second Protocol stipulates that, ‘None of the rules in this Protocol shall be invoked as justification for directly or indirectly intervening, for any reason, in the internal or external affairs of the High Contracting Party, within whose territory the armed conflict occurs’ (Article 3). Also noteworthy is the growing importance of the Martens Clause as new weaponry and methods of warfare is under rapid development. In terms of legislation, its formulation utilizes a process of ‘inclusive’ (rather than a process of ‘enumeration’ or a process of ‘elimination’), making it clear that whether or not international treaties have yet to create a rule, ‘Populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the law of humanity and the requirements of the public conscience’. This principle was written into the Fourth Hague Convention of 1907 and Protocol I. In addition, it was decided during the drafting of the first Protocol at the 1977 diplomatic conference that the status of the Martens Clause be raised to a substantive norm, rather than a paragraph in the preamble of the 1973 draft. This act indicates the immense significance of the Martens Clause.²⁸ Upon closer examination, it is apparent that the Martens Clause is tremendously important in its utilization of customary law, which emphasizes the importance of customary law in the regulation of armed conflicts.²⁹ Certain Western scholars believe that even the most complete law cannot encompass all possible situations. The more specific situations for application of a law that are enumerated, the greater the risks are of oversights. Whilst it is impossible to invoke specific provisions in the Four Geneva Conventions of 1949 to solve problems, the Martens Clause would function as a ‘safety valve’.³⁰

At the end of the Second World War, the United Nations Charter stipulated each member State's responsibility to settle international disputes peacefully, thereby theoretically eliminating the legality of using force. There are nevertheless two exceptional situations; the first is self-defense. Article 51 of the United Nations Charter provides that: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until such time as the Security Council takes the measures necessary to maintain international peace and security’. The word ‘inherent’ is used to indicate that ‘self-defense’ is a State's innate and unalienable right. Another situation is that United Nations Security Council authorizes or undertakes enforcement action according to the United Nations Charter. Article 42 of the United Nations Charter stipulates that: ‘Should the Security Council consider that measures provided for in Article 41 are inadequate or have proved to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security’. On the other hand, the development of international relations has given rise to three specific situations’ elevation to the status of ‘international armed conflict’—that is, armed conflict involving fighting against colonialism, foreign occupation and racist regimes. The expansion of the area to which the laws of armed conflict are applicable has deep and profound political and historical underpinnings. After the Second World War, national liberation movements abounded. States which had been colonized by the West undertook, one after another, various measures (including armed conflict) to achieve independence. At the same time, former suzerains were reluctant to relinquish their vested interests, and did all they could to maintain their former privileges. Fighting between the two factions became more and more intense. Burgeoning numbers of independent States requested protection of their legal rights under international law, which led to the gradual emergence of a situation where the laws of armed conflict were made applicable to civil wars. In actuality, the three situations described in Protocol I to which the laws of armed conflict are also applicable represent and rooted in factual occurrences. For example, ‘anti-colonialism’ is in reference to Angola, which at the time was a former colony of Portugal; ‘foreign occupation’ is in reference to the relations between Israel and Pakistan; and ‘racist regimes’ is in reference to apartheid in South Africa. Developed States of the West and third-world States had very different perceptions as to the handling of these problems. At the time the ICRC conferences were held, fighting between each of the factions was extremely intense. In essence, the application of the laws of armed conflict in civil wars and other similar conflicts is to avoid a situation where there exists a state of legal vacuity and lawlessness. One of the unique characteristics of human society lies in its organization. Even in an extreme situation of anarchy such as war, there still exists a need for regulations of conduct. According to traditional law of war, treaties are only binding between signatory States. This is the so-called ‘general participation clause’. However, as it is difficult for either belligerents of internal conflicts to attend international conferences and express their positions towards the laws of armed conflict. The laws of armed conflict should be applicable to all parties of a domestic conflict, regardless of whether or not each of the parties has signed or accessed at an international convention. In this respect, the provisions of the laws of war are similar to the effects of international customary law. If it is possible to establish a rule as applicable under international customary law, it will also apply to all States that have not ratified either the First or Second Protocol and to armed conflicts not of an international nature.³¹

International law provides protection for war victims of both international and non-international armed conflicts, but they are plainly differentiated by their unequal levels, that for war victims of international conflicts being comprehensive and all-encompassing, while protection of war victims of non-international conflicts is lacking. During non-international armed conflicts, there is no concept of a ‘protected persons’. The laws of armed conflict only provide a minimum protection for war victims.³² Protocol II expands the scope of protection offered to war victims under law of war to include non-international armed conflict (such as civil wars), but, at the same time, restrictions are imposed upon internal warfare, such as ‘this Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature’ (Article 1.2). Also, Protocol II is applicable only to ‘armed conflicts within the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations, and to implement this Protocol’.³³ Some Western scholars hold that the partial territory referred above can generally be understood to mean 30% or more of a State's territory. Nonetheless, new provisions contained in the Statute of the International Criminal Court adopted in 1998 during Diplomatic Conference in Rome (also known as the Rome Statute of the International Criminal Court) raised the standards for application of the laws of armed conflict to those of civil war. Article 8, paragraph 2 of the Rome Statute of the International Criminal Court regarding its jurisdiction over war crimes stipulates that: ‘Paragraph 2 (e) applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups’.³⁴ This stipulation further complicates the situation because the term ‘protracted’ describes a key time factor that is difficult to analyse quantitatively. In addition, because the number of States that accessed to Protocol II and the Rome Statute of the International Criminal Court are limited, they are far less universal than the Four Geneva Conventions of 1949 and Protocol I.³⁵ It is consequently still unclear as to whether or not this portion of international regulations has become a part of international customary law.³⁶ Certain scholars might indicate that any violation of provisions within Protocol II is now within the jurisdiction of the International Tribunal of Rwanda. However, because this practice is sparse on an international level, it is unlikely that the cumulative number of occurrences and repeated practice would elevate the status of Protocol II to that of international customary law. In direct contrast, ‘the basic principles of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide have been recognized by the International Court of Justice as international customary law’.³⁷ Moreover, ‘Without a doubt, after 1946, crimes against humanity had already developed into a part of International Customary Law, a point that was clearly and undoubtedly confirmed during the judgment of the Tadic trial by the International Criminal Tribunal for the Former Yugoslavia. The Statute of the International Criminal Tribunal for Rwanda established crimes against humanity as a separate category of offence, thereby severing its relationship to war crimes. Article 1 of the November 26, 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity reiterates Article 6 of the Nuremberg Charter regarding crimes against humanity, but adds the phrase ‘whether committed in time of war or in time of peace’.³⁸

Theoretically speaking, violations of ‘provisions of a prohibitive nature’ of the laws of armed conflict led to respective culpability. The development of international regulations concerning the penalty for war crimes has, however, long been extremely deficient. The development of international criminal law—the general terms for the substantive and procedural laws that regulate international crimes and penalty—after the Second World War greatly strengthened the efficacy of the laws of armed conflict. This law primarily includes principles, rules, and institutions that focus on the prevention and punishment of international crimes at international plain and on mutual assistance and cooperation to achieve international criminal justice. It has recently been commonly acknowledged within the Western law circle, however, that international crime has become subdivided into the main categories of ‘war crimes’, ‘crime against humanity’, ‘crime of genocide’, and of the other most heinous offences,³⁹ while all other types of international crimes are left to domestic jurisdiction. In the situation where warfare is considered to be a State's intrinsic right, an action will be considered a war crime only if it violates widely recognized laws and customs of war. This type of action, such as killing and looting of soldiers that have lost their ability to fight due to injury or sickness or who have already put down their arms, not only violates international law but typically also violates the municipal criminal law of the transgressor's home State. Prior to the Second World War, laws concerning the legal responsibilities of those in violation of law of war were scattered amongst various treaties. Article 56 of Annex to the Hague Convention of 1907 stipulates that anyone engaging in willful damage to priceless historical monuments or works of art shall be punished according to law; Articles 28 to 30 of the 1929 Geneva Convention that ameliorated the treatment of the sick and wounded also includes provisions on the punishment for misuse of the Red Cross emblem and for any conduct that violates the convention (such as abuse of the sick and wounded and injury to medical personnel). Article 3 of the Washington Treaty of 1922 stipulates that any person in the service of any Power that violates the humane rules of existing law concerning the attack, seizure and destruction of merchant ships, whether or not such person is under orders of a superior, shall be deemed to have violated the laws of war, and shall be liable to trial and punishment as if for an act of piracy, and may be brought to trial before the civil or military authorities of any Power within the jurisdiction of which he may be found.

If it were to be said that the two Hague Peace Conferences took the formerly sparse and diffuse principles and rules of warfare that existed as a result of conventional use and turned them into the foundations for law of war, then it was the Four Geneva Conventions of 1949 and the two Additional Protocols of 1977 that were drafted after the Second World War that served to further codify and finalize law of war. Law of war developed from principles and rules limiting the methods and means of war, to protecting war victims into the most complete branch within the international legal system. Moreover, owing to changes in international politics, the range of situations to which the principles and rules of the law of war are applicable expanded to include internal armed conflict, and as a result prevented the state of lawlessness that arises from civil war. The practices of the international criminal justice system in punishing war crimes also ‘caused important changes in the international responsibilities of States and their public officials’.⁴⁰

	Law of War Safeguarded and Supplemented by International Criminal Justice

Top Idea of Law of... Vestiges of Law of... Law of War after... Law of War Safeguarded... New Developments in Law... Conclusion

 
Over the course of history, violations of law of war (the laws and customs of warfare) have been common occurrences, yet the international community was for a very long period of time incapable of punishing transgressors according to the law. In the aftermath of the First World War, the victorious States called for the trial and punishment of the German Emperor Kaiser Wilhelm II and other war criminals. The Treaty of Versailles of 1919 stipulated that Wilhelm II and other members of the German armed forces were in severe violation of law of war and must be turned over for trial either at an international court or at a mixed tribunal.⁴¹ The contracting States, however, did not want to set this kind of precedent, and used the Dutch government's refusal to extradite Wilhelm II as an excuse to leave the situation unresolved. Germany, in the meantime, used ‘national pride’ as a reason not to handover other war criminals. On 8 August, 1945, the Soviet Union, the United States, the United Kingdom and France, acting under the provisions of the Moscow Declaration of 1944, agreed to establish an International Military Tribunal, and in London signed the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (the ‘London Agreement’) and also the additional Charter of the International Military Tribunal. The London Agreement stipulated the jurisdiction, organization and mission of the International Military Tribunal, while the Charter of the International Military Tribunal stipulated the organization, trial and judgment procedures of the court. Article 6 of the Charter lists the categories of war crimes: (a) ‘crimes against peace’, namely, planning, preparation, initiation or waging of a war or aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) ‘war crimes’, namely, violations of the laws or customs of war. Such violations include but are not limited to the murder, ill-treatment or deportation of forced labor or any other purpose of civilian population of or in occupied territory; the murder or ill-treatment of prisoners of war or persons of the sea, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) ‘crimes against humanity’, namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the State where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. International trials for major fascist German war criminals were organized in Nuremberg, Germany in accordance with the London Agreement and the Charter of the International Military Tribunal. The Nuremberg Trials by the International Military Tribunal were held from November 10, 1945 to October 1, 1946 and sentenced a total of 12 accused to death by hanging, seven accused to imprisonment, and also declared the Nazi Party Directorate, the Gestapo (Nazi secret police) and the SA (private army of the Nazi Party) criminal organizations. Empowered by the Allied Nations, on 19 January, 1946 the supreme command of the allied forces issued the Charter of the International Military Tribunal for the Far-East, the content of which was essentially the same as that of the Charter of the International Military Tribunal for Europe. It states that the International Military Tribunal for the Far-East comprizes the representatives of 11 States—China, the Soviet Union, the United States, the United Kingdom, France, Holland, India, Canada, New Zealand, the Philippines, and Australia. The tribunal put major Japanese war criminals on trial in Tokyo from April 1946 to November 1948, sentencing seven of them to death by hanging and 18 to imprisonment. The Charters of the International Military Tribunals and the Trials of Nuremberg and Tokyo had a profound impact on the development of law of war. The principles included in the Charter of the International Military Tribunal for Europe were unanimously affirmed in Resolution 95 (I) of December 11, 1946 of the United Nations General Assembly. Certain Italian scholars believe that the General Assembly of the United Nations’ affirmation of the provisions of the London Charter is characteristic of customary law.⁴² In 1950, International Law Commission of the United Nations formulated the ‘Principles recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal’ through resolution 177 (II) of the General Assembly, stating that: (1) any person who commits an act which constitutes a crime under international law is personally responsible and as such is liable to punishment; (2) that the act is not in violation of internal law within the host State does not exempt responsibility for it under international law; (3) the status of the defendant does not exempt him from responsibility under international law; (4) that the act was an order by the government or superior does not exempt it from responsibility under international law; (5) any person charged with a crime in violation of international law has a right to a fair trial; (6) the crimes in violation of international law are crimes against peace, war crimes and crimes against humanity; (7) collaboration in the foregoing crimes is a crime under international law. To this, Italian scholar Edoardo Greppi comments: ‘Many judgments were passed during the Nuremberg Trials (as well as the less influential Tokyo Trials), and from the perspective of precedence law these judgments have largely influenced the formation of individual criminal responsibility under international law’.⁴³ After the Nuremberg and Tokyo Trials, further trials of war criminals were held in the national courts of other States such as the Soviet Khabarovsk Trials and China's Shenyang, Nanjing and Taiyuan Trials. The General Assembly of the United Nations adopted a resolutions in 1967 and 1968 stipulating that war criminals do not have a right to seek asylum nor do legal prescriptions apply to them (such as periods of prescription in a statute of limitations).

In 1993, the United Nations Security Council adopted S/RES/827 (1993) that established an International Criminal Tribunal for the Former Yugoslavia wherein to prosecute the persons responsible for serious violations of international humanitarian law since 1991 in the territory of the former Yugoslavia. In 1994, the United Nations Security Council passed Resolution 935 (1994) establishing International Criminal Tribunal for Rwanda wherein to prosecute the persons responsible for genocide and other serious violations of international humanitarian law in the territory of Rwanda, and also to prosecute the Rwandan citizens responsible for genocide and other serious violations of international humanitarian law in the territory of States neighboring Rwanda between January 1, 1994 and December 31, 1994. The International Tribunal for Rwanda was also the first court to bring into its of jurisdiction acts in violation of Article 3 common to the Four Geneva Conventions of 1949 and Protocol II.⁴⁴

On the one hand, the establishment of these ad hoc international tribunals and their judgments spurred the development of law of war, but on the other hand, they prompted a series of contentious legal theories. For instance, during the Nuremberg Trials, the defendants raised a series of defense stating that their acts had not violated international law in effect at the time of the Second World War, and that the trials held by the International Military Tribunal were in violation of the fundamental principle of legality (nullum crimen sine lege). The argument was that in actuality, the trail was ex post facto,⁴⁵ and the law should never bear retroactivity. Also, that the operation of the International Military Tribunal was concerned only with the actualization of the so-called ‘victor's justice’, since many actions undertaken by the armed force of the Allied Powers should also be considered unlawful (such as the bombing of the Dresden by the British air force). Justice Pal, the Indian Judge of the Tokyo Tribunal, would have acquitted all the defendants on the ground that there had been no individual criminal responsibility under international law.⁴⁶

The theoretical problems discussed above embody academic significance and also important practical implications. Deliberately evading the situation rather than finding reasons to refute these arguments would make them highly detrimental to the development of the laws of armed conflict and international criminal law. An analysis of those issues by the defendants of the Nuremberg and Tokyo Trials will, by means of well-formed arguments and meticulous explanations, produce answers to them. From a theoretical perspective, neither the Nuremberg Trials nor the Tokyo Trials violated the basic principle of nullum crimen sine lege. Although international law at the time lacked obvious and concrete written penal code norms, as stated in the judgment of the Nuremberg International Military Tribunal: ‘To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished’. The ruling also analyses the Kellogg–Briand Pact signed in Paris in 1928 (also known as the Pact of Paris) that renounces war, and to which Germany, Italy and Japan were all signatories. The ruling states that, ‘In the opinion of the Tribunal, the solemn renunciation of 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’.⁴⁷ In this sense, rather than violating the principle of legality, the Nuremberg International Military Tribunal actually spurred the development of international criminal law. Furthermore, the judgments of the Nuremberg Tribunal and the subsequent Tokyo Tribunal have been affirmed by the United Nations General Assembly as well as the United Nations International Law Commission. As to the charge of ‘crimes against humanity’ in the Nuremberg rulings, Professor Bassiouni maintains that such charges in international criminal law can arise from analogy, and that are not in violation of the principle of nullum crimen sine lege.⁴⁸

The relationship between international criminal law and the principle of nullum crimen sine lege must be approached from the following perspectives in order to arrive at an objective, practical and convincing conclusion. First of all, it is impossible for provisions of statutory law to address all the various societal situations that require legal redress. According to ‘general principles of law’ and the judicial practice of each State, law can be developed in the course of trials and judgments. For example, both ‘marital rape’ and ‘male rape’ are not stipulated in penal code, but came out through judicial practice in Western States. The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda determined that ‘thrusting a piece of wood into the sexual organ of a woman as she lies dying is rape’ (Akayesu Case), ‘forced penetration of the mouth which is a humiliation and degrading attack on human dignity can be considered rape (Furundzija Case) and forcing two men to perform fellatio on one another could constitute rape (Celebici Case).⁴⁹ This ruling does not violate the principle of nullum crimen sine lege. Secondly logically deducting a concrete law to apply to a particular case from an abstract legal principle is permitted in internal law of most States. Moreover, the diversity that has emerged within the existing form of the law is manifest in the existence of statutory law as well as customs. It is submitted that the key to determining and judging the legality of certain charges and penalties lies in whether or not they can satisfy political legitimacy. What should be noted is that, should any dispute as to whether or not the international trials held at the end of World War II adhere to the principle of nullum crimen sine lege arise, it is the development of post-war international criminal law that has already sorted out the problem. This argument could find supporting evidence from International Covenant on Civil and Political Rights, in which Article 15 Paragraph 1 states that: ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, 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 when the criminal offence was committed. If, subsequent to committing the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby’. The second clause, however, states that: ‘Nothing in this article shall 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 the community of nations’.⁵⁰ On a separate issue, ‘the Draft Code of Crimes against the Peace and Security of Mankind, drawn up by the International Law Commission of the United Nations, had major impact on the development of the concept of individual criminal responsibility. In the drafts of 1951 and 1954, Article 1 states that, "offences against the peace and security of mankind are crimes under international law, for which the responsible individuals shall be punished". In the text of the 1996 draft, Article 1 states that, "crimes against the peace and security of mankind are crimes under international law and punishable as such, whether or not they are punishable under national law". Moreover, according to Article 2, "A crime against the peace and security of mankind entails individual responsibility" ’.⁵¹ What should be explained is that although these draft codes do not bear binding force, on a certain level they do reflect the future direction and trend of international criminal legislation.

The legality of the International Criminal Tribunal for the Former Yugoslavia, owing to its establishment by the United Nations Security Council, is questionable and is repeatedly challenged by defendants. During the 1995 Tadic Trial, the defendant maintained that the Tribunal was illegally created and as such had no right to conclude judgment upon him. When, at his hearing in July 2001, former Serbian and Yugoslavian President Slobodan Milosevic was asked to plead guilty, he also pointed out the illegality of the court's existence because it had not been established by the General Assembly of the United Nations.⁵² Aside from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, establishment of an International Tribunal for East Timor is also proposed.

Contrary to what many scholars believe, the range of issues to which international criminal law can be applied is shrinking rather than expanding. The four crimes that fall under the jurisdiction of the International Criminal Court comprize the crime of genocide, crimes against humanity, war crimes and crimes of aggression. Only those most heinous crimes that endanger the welfare of the international community fall under the adjustment of international criminal law, whilst these less severe offences are left to each respective State's domestic jurisdiction. International Criminal Law by a Thai scholar also focuses exclusively on the crime of genocide, crimes against humanity, war crimes and crimes of aggression.⁵³

Moreover, it is worthwhile to notice that an important development should be mentioned here in relation to the practice of codifying international law: there is a growing connection between humanitarian law and human rights law. Indeed, some recently adopted provisions of humanitarian law appear clearly influenced by human rights rules and standards of protection. The Rome Statute refers to concepts like ‘personal dignity’, the prohibition of ‘humiliating and degrading treatment’, ‘judicial guarantees’, the prohibition of ‘persecution’ (as ‘intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’), discrimination and apartheid. These concepts have all been established in the main instruments adopted by the UN for the protection of the rights of the individual. However, the principle of humanity is at the core of international humanitarian law and forms the basis of all the developments.⁵⁴

Looking at the system of armed conflict law in its entirety, certain Western scholars believe that aside from the ‘law of Geneva’ (or Red Cross Law) and the ‘law of The Hague’ the so-called ‘law of New York’ also need to be taken into account. According to two Dutch scholars, everything that the United Nations has achieved towards the development of the laws of war since its establishment may also be referred to as ‘law of New York’. The purpose of these laws is five-fold: (1) to facilitate the establishment of the principles relating to the punishment of war crimes; (2) to appeal for the prohibition of or limitations upon the use of nuclear weapons as well as certain conventional weapons; (3) to urge the respect of human rights during armed conflict; (4) to protect the person and rights of women and children as well as the right of reporters to report during warfare; and (5) to raise the status of national liberation movements to that of international armed conflict, and also to advocate that combatants and guerrilla forces also enjoy prisoner-of-war status. The Dutch scholars also believe that the ‘law of the Hague’, the ‘law of Geneva’ and the ‘law of New York’ are like three distinct tributaries slowly merging. While they remain distinct, their relationship with international criminal law has been growing closer since the 1990s.⁵⁵ Yet, this characterization of law of war is the belief of a minority only, and has yet to be widely accepted. There is no actual consensus among Western academic circles on this issue. For example, some British scholars (like Mr Dino Kritsiotis of Nottingham University) believes that the formulation of the ‘law of New York’ was based on a political agenda, and its success is as a result of its unconventional nature and public appeal. Certain prerequisites must exist in order for a new legal system to be created, according to a leading scholar of international law. Since the end of World War II, relations between States have rapidly developed, creating a number of new areas within the international community that are in need of legal redress. At the same time, the number of international organizations has also increased sharply, and new branches of international law have also appeared in rapid succession. With regard to the standards and qualifications necessary for the establishment of a new field within international law, Professor Liang Xi, a well-known Chinese publicist, holds that, ‘each specialized field must have developed into an independent branch of international law with its mature system’.⁵⁶ In the 1980's, an international lawyer in the Soviet Union once suggested two criteria through which to classify branches of international law: the first one is the issue that law is attempting to cope with (i.e., special areas of international law and the purpose behind the international legal norms used to regulate international relations in these particular areas); the second is the means of regulation. For the latter, international lawyers always use three criteria that must be contained unique principles that make up any new branch of international law: States’ interest in regulating a particular type of societal relations (as clearly expressed during the act of compiling), the important international implications of each societal relationship, and sufficient norms of international law.⁵⁷ Whether or not a certain group of international regulations satisfy qualifications necessary to become a new branch of law, or the threshold to become a new subdivision of international law, the aforementioned criteria can seemingly determine.

For a long time, the principles and rules of law of war remained only as superficial responses to moral necessities that lacked coercive strength needed to ensure their enforcement. Positivists who emphasized that ‘the validity of international law lies in the will of States’, whose perspective has long held dominant position on this issue. The advent of international criminal law marked a breakthrough from traditional stereotype of law of war, providing the strongest guarantee by virtue of criminal law with coercive enforcement to implement law of war.

	New Developments in Law of War

Top Idea of Law of... Vestiges of Law of... Law of War after... Law of War Safeguarded... New Developments in Law... Conclusion

 
Over the last 10 years, law of war has undergone many new changes. In October 1995, the Vienna Diplomatic Conference issued the Protocol on Blinding Laser Weapons (the Fourth Protocol of the 1980 Convention on Certain Conventional Weapons), prohibiting both the use and transfer of laser weapons, one of whose combat specific functions is to cause permanent blindness. The Protocol also requires States to take all appropriate precautions, including training of armed forces, to avoid causing permanent blindness by the lawful use of other laser systems. The use of land mines is the focus of the Second Protocol Additional to the Geneva Convention of October 10, 1980, on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the regulations of which became more inclusive with the passing of the Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices in Geneva on May 3, 1996. In addition, from December 3 to 4, 1997, the representatives of 121 States converged in Ottawa to sign the Convention on the Prohibition on the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, which completely banned the use of land mines. This convention also includes provisions on demining, providing aid to victims of land mines. Another new development in law of war is that of San Remo Manuel on International Law Applicable to Armed Conflicts at Sea. Developed by the International Institute of Humanitarian Law under the direction of the ICRC, the San Remo Manual received world-wide recognition, and its significance was evident in the resolutions of the 26th International Conference of the Red Cross and Red Crescent held in Geneva in 1995. The passing of the Rome Statute of the International Criminal Court on 17 July, 1998 was also an important step in ensuring that all States abide by international humanitarian law. The newly established International Criminal Court was given jurisdiction over all war crimes, regardless of whether committed during international armed conflict or non-international armed conflict. Eventually, the most recent development in law of war relates to the means of war. In December 2001, the scope of the ‘Geneva Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects of October 10, 1980’ was extended. In the past, this Convention had only covered situations of international armed conflict, but Second Review Conference amended Article 1 to include situations of non-international armed conflict.⁵⁸

The type of warfare in the early 21st century had an important impact on the laws of armed conflict. The terms ‘formality of warfare’ and ‘type of warfare’ are often used to characterize broadly the unique aspects of a war or armed conflict, but both phrases simply describe the basic features of war. War and armed conflict are generally characterized from two perspectives: the first one is based upon the relationship between the belligerents. For instance, when armed conflict erupts between the forces of two States, it is called ‘international war’ or ‘international armed conflict’; when armed conflict breaks out between government and anti-government forces, it is called an ‘internal war’ or ‘non-international armed conflict’; when armed conflict erupts between one State and non-governmental armed forces in another State, it is called a ‘natives’ war’ or ‘war against terrorism’. This perspective stresses the subject of warfare. The second way to classify a war is according to the kinds of weapons and tactics employed in hostilities. For example, a war fought predominantly by aircraft is called an ‘aerial war’; when information systems are used as weapons it is called ‘warfare of information’; when space-based weapons are used it is called a ‘space war’; and when nuclear weapons are mainly used it is called a ‘nuclear war’. This perspective stresses the means of warfare. Of course, there are other perspectives from which to characterize the generalities of any particular war, but the aforementioned two are most prevalent. The former perspective looks at the political relations in war, while the latter focuses on the impact of science and technology on warfare.

From the above classifications it can be seen that the formality of war is influenced by two factors, first, changes in political relations, and secondly developments in military technology. Judging by situations at the turn of the millennium, these two factors are both undergoing great changes. In terms of international politics, the onset of severe terrorism led to a war on terror. Such conflicts between a State or a group of States, and a non-State actor, or armed conflict between two terrorist groups, are all unprecedented forms of war. In terms of military technology, the swift and drastic development of modern high-technology led to rapid and successive emergence of new weapons, such as information systems weapons and space-based weapons. Other newly developed weapons include mini nuclear weapons and genetic weapons, the use of which will lead to the rise of warfare of information, space war and nuclear war on small scale.

The impact of changing forms of war on the laws of armed conflict is inevitable, as legal norms’ purpose is to regulate conduct of combatants, the means and methods of war. The laws of armed conflict will change and develop in line with the changes and developments in international political relations and military technology that occurred during the early part of the 21st century.

Although new developments in the means and methods of war have expanded the central components of warfare as well as the scope of application of the principles and rules of law of war, they still face new challenges in the new century. The establishment and operation of the International Criminal Court have allowed the enforcement mechanism of law of war to diversify and flourish, but have also created a latent corrosive force that threatens each State's judicial sovereignty.

	Conclusion

Top Idea of Law of... Vestiges of Law of... Law of War after... Law of War Safeguarded... New Developments in Law... Conclusion

 
The reasons underlying the development of law of war are based on the fact that every State that fights a war is bent on using the maximum amount of force in order to achieve its aims. Wars consequently and invariably cause irreparable harm to human lives and welfare. The self-perpetuating philosophy that ‘an eye for an eye’ is nothing more than a magnification of