an intention to make war. A nation attacked can elect to treat an attack as a state of war regardless of the intention of the attacker. The legal status of war ceases by agreement, usually in the form of a peace treaty; by a unilateral declaration by one of the parties accepted de facto by the other; by a complete subjugation; or by simple cessation of hostilities accompanied by a tacit agreement that the war is over.

b. Modern State of War and the UN Charter. 44 Since World War II, states have avoided formal declarations of war. This reflects a shift in the legal basis on which states claim to have resorted to war as an instrument to settle disputes. Following World War I, and even more particularly since World War II when the UN Charter came into existence, states have not claimed a right to declare war to achieve political aims. Recognizing existing limits on any state's right to resort to armed conflict, conflicts have been justified as exercises of each state's right of individual or collective self-defense against aggression or subversion. This is in marked contrast to previous eras, in which states recognized and exercised a right to resort to war. Although international law may prohibit aggressive war, armed conflict has not disappeared. Thus, the law of armed conflict retains its importance. Moreover conflicts have been terminated by a variety of arrangements, political or otherwise, termed armistice agreements, truces and cease fires, other than the formal peace treaties of earlier times. "Cease fire," was originally descriptive of a simple military order to stop firing. International usage, particularly UN practice, has made the term broader and in some contexts synonomous with an armistice. An "armistice," which was originally a mutually-agreed suspension of military operations, has evolved into a functional substitute for a peace treaty. Peace treaties, although used frequently prior to World War II and concluded with most of the belligerents of that war, have since then not been widely used to establish a de jure end to armed conflicts. In part, the reason for this is that their use implies the

existence of a state of war-a condition which states have declined to apply to their armed conflicts.

c. Application of the Law of Armed Conflict. 45 The law of armed conflict applies to an international armed conflict regardless of whether a declared "war" exists. This rule, necessitated by the law's humanitarian purpose and disuse of the legal status of war in international contexts, is confirmed by international agreement and consensus. Moreover, relevant international law protects certain war victims, such as PWs or civilians in occupied areas, even though active armed conflict has ceased. International armed conflicts are regulated whatever the level of conflict. However, the international community has not regarded a few sporadic acts of violence, even between states, as indicating a state of armed conflict if the parties themselves do not regard a state of armed conflict as existing. Generally, the international community has encouraged broad application of the law of armed conflict to as many situations as possible to protect the victims of conflicts.

d. Internal Conflicts. 46 The law of armed conflict does not generally apply to conflicts occurring solely within the territory of a state between persons who are nationals of ❘ that state. Yet the difference between an internal and international conflict is frequently subject to international dispute. More importantly, the policy of protecting the victims of conflict should also apply in an internal conflict. Recognizing these factors, customary international law provides that insurgents in internal armed conflicts may attain the legal status of belligerents or lawful combatants. This occurs when there is a general civil war involving sustained armed conflict and control by the insurgents of a significant portion of national territory. The law of armed conflict applies to all combatants in such a situation imposing obligations and rights equally. Moreover, even in internal armed conflict of intensity less than that required for recognition of such belligerency, Article 3, common to the 1949 Geneva Conventions for the Protection

of War Victims, prescribes certain basic legal standards to be applied in all noninternational armed conflicts.

1-6. Observance of the Law.47 The law of armed conflict developed from an amalgam of social, political and military considerations. The primary basis for the law, and the principal reason for its respect, is that it generally serves the self-interest of everyone subject to its commands. Because of the lack of effective international mechanisms to prevent war, armed conflicts have occurred. Equally, violations of the law of armed conflict have occurred including violations of the latest formal international consensus on the law-the 1949 Geneva Conventions. Violations that do occur are likely to be highly publicized. They may even tend to obscure the routine compliance, observance and enforcement of international law that does exist. It, nevertheless, remains true and highly significant that much of the law of armed conflict has not been violated and has been observed during periods of armed conflict by all participants. Since compliance is commonplace, it is little reported.

a. Political. 48 Clausewitz noted that wars are a continuation of politics by other means. Although states have formally renounced war as a means of achieving political aims, armed conflict has remained a fact of life in the international community. However, the application of military force has never been an end in itself. In many respects, the overall political context has increased in importance in recent years although that political context has always influenced the means of destruction or tactics used in warfare. Violations of the law of armed conflict have been recognized as counterproductive to the political goals sought to be achieved. For example, they may arouse public opinion and induce neutrals to become involved in the conflict on the adversary's side, such as the entry of the United States into World War I. Violations are likely also to stiffen enemy resistance, enhance antagonisms on both sides and prevent successful negotiation of the differ

ences which precluded peaceful relations. Thus, mutual and reciprocal self-interest is an underlying basis of the law of armed conflict, although reciprocity is not a formal condition for all obligations. For example, if a state expects and hopes that its captured prisoners will be treated humanely, that state's self-interest requires self compliance by that state and its allies with the law of armed conflict and humane treatment of the prisoners it captures. Nevertheless a state must treat its prisoners humanely regardless of the conduct of the other state. Violations that do occur often arise from inaccurate perceptions of self-interest blurred by the passions of the moment, from unauthorized individual acts by combatants, or simply from lack of due diligence to prevent violations.

b. Military. 49 The law of armed conflict has been shaped with a recognition of the concept of "military necessity." Hence "necessity" cannot be claimed as a defense to violations of absolute prohibitions included in the law of armed conflict, for example, killing of prisoners of war. More importantly, various military doctrines, such as accuracy of targeting, concentration of effort, maximization of military advantage, conservation of resources, avoidance of excessive collateral damage, and economy of force are not only fully consistent with compliance with the law of armed conflict but reinforce its observance. Use of excessive force is not only costly and highly inefficient and to be avoided for those reasons-it may also be a waste of scarce resources. It also might, depending on the situation, involve a violation of the law of armed conflict, with its attendant counterproductive political consequences. Conversely, conduct which violates the law of armed conflict frequently is found to be of marginal military advantage. Examples include attacks directed against the civilian population. As the Chairman of The Joint Chiefs of Staff, observed,

We recognize that wanton destruction and unnecessary suffering are both violations of these military developed legal principles and counterproductive to the

political military goals of the Nation. The law of "proportionality" is simply a legal restatement of the time honored military concept of "economy of force." 50

c. Humanitarian. 51 Humanitarian considerations underlie the law of armed conflict. For example, the requirements of uniforms and markings exist not only to assure combatants that enemy targets and not their own are being attacked, but to reinforce the protections secured to civilian populations and civilian objects. PWs, wounded and sick, and the civilian population although the

inevitable victims of war are sought to be protected to the maximum extent possible. The international community has sought to identify situations in armed conflicts in which humanitarian principles can be invoked to protect such victims and to limit the destruction of enemy property without sacrificing material military advantages. For example, if an adversary represents no military threat because he is hors de combat, no military advantage is secured by treating him in an inhumane manner. The Geneva Conventions themselves are very predominantly humanitarian in nature although political and military considerations are also relevant.

1 On the general subject of this chapter, see Bishop, International Law, Cases and Materials 900 (3rd ed. 1971); 2 Oppenheim's International Law (7th ed. Lauterpacht 1952); Stone, Legal Controls of International Conflict (1973); Mc Dougal and Feliciano, Law and Minimum World Public Order (1961); 2 Schwarzenberg, International Law, International Courts The Law of Armed Conflict (1968). On the application of law in civil war, see The International Law of Civil War (Falk ed. 1971).

2 For discussion, see Introduction to chapter 2, "Hague Conventions of 1907," in AFP 110-20, at 2-1; and chapter 5, paragraph 5-2, this publication. 3 The principles common to the law of armed conflict discussed elsewhere in the publication, for example, include military necessity, humanity and chivalry (chapter 1, paragraph 1-3); lawful and unlawful combatants (chapter 3); the basic immunity of noncombatants including civilians, particularly the principle of distinction and proportionality (chapters 3 and 5); the rule against unnecessary suffering (chapter 6); prohibition of treachery (chapter 8); the concept of the military objective (chapter 5); enforcement measures (chapter 10); and criminal responsibility (chapter 15); as well as the rules and principles of the Geneva Conventions protecting wounded and sick, PWs and civilians (chapters 1114). Different applications of those principles will be discussed in all chapters.

4 Geneva Convention Relative to the Protection of Prisoners of War, 6 UST 3316; TIAS 3364 (1956), [herein GPW] (discussed chapter 3, this publication). The persons so named are:

(1) members of armed forces, militias and volunteer corps forming part of such armed forces.

(2) members of other militias, corps and organized resistance movements belonging to a Party to a Conflict, who meet certain requirements.

(3) inhabitants of nonoccupied territory who spontaneously take up arms to resist invading forces and who are required to carry arms openly and obey the laws and customs of war.

5 Modern textbooks of broad scope and great utility to the military lawyer include Bishop, International Law, Cases and Materials (3rd ed. 1971); Brownlie, Principles of Public International Law (1973); Friedmann, Lissitzyn and Pugh, International Law (1969); O'Connell, International Law, 2 Volumes (1970). Principal U.S. Digests include Hackworth, Digest of International Law, 7 Volumes (19401943); Whiteman, Digest of International Law, 15 Volumes with index (1963-1973) [herein Whiteman]. 61 Hackworth, supra note 5, at 1. "Austinian" refers to the system of jurisprudence developed in 1 Austin, The Province of Jurisprudence Determined 2, 128 (1861).

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

For material on the sources of international law, the Digests which reflect practice, such as the U.S. Digests of Hackworth and Whiteman, as well as standard sources cited, supra note 5, should be consulted.

11 1 Whiteman, at 1-2.

12 See authorities supra note 5.

13 One type of centralized law enforcement mechanism is the United Nations system which includes the UN General Assembly, Security Council and other principal organs such as the International Court of Justice. Affiliated with the UN are various specialized agencies, some of which play a central enforcement role in various functional or specialized areas. As listed in Bishop, supra note 1, at 225, these include the International Labor Organization; Food and Agricultural Organization; UN Educational, Scientific and Cultural Organization; the International Bank for Reconstruction and Development (and its companions, the International Development Association and the International Finance Corporation); International Monetary Fund; International Civil Aviation Organization; Universal Postal Union, International Telecommunications Union, World Meteorological Organization; and the

International Maritime Consultative Organization. Closely allied to the UN is the International Atomic Energy Agency-a key organization under the Treaty on the Non-Proliferation of Nuclear Weapons (see chapter 6, this publication). There are large numbers of other organizations which are regional or have less than universal membership.

14 Insofar as international law is based on custom or general principles this may be particularly true. Yet, much of international law is expressed in elaborate treaty commitments which are fairly precise in form, such as the 1949 Geneva Conventions for the Protection of War Victims. These are discussed in chapters 11 through 14, this publication.

15 The pressures to observe international law, in the context of the law of armed conflict, are examined in depth later, particularly paragraphs 1-6 and 15–2, this publication.

16 This remains true because of the heavy influence of state practice in the formation of the law as examined in paragraphs 1-6, 5-2 and 15-2, this publication.

17 See paragraphs 1-6 and 15-2, this publication. 18 Chapter 10, this publication.

19 Air Force News Release, Tuesday, November 4, 1975, Speech by The Honorable John L. McLucas, Secretary of the Air Force.

20 See generally 10 Whiteman chapters 29, 30. On historical analysis of its application in civil war, see The International Law of Civil War, supra note 1. 21 For example, ... [T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more ... Parties, even if the state of war is not recognized by one of them." (Art 2, in all 1949 Geneva Conventions). States are also bound to apply the Conventions in relations between themselves although one Power in conflict may not be a Party (there are in fact only a few states not Parties, notably the Republic of China). Avoidance of declarations of war, a significant factor in state practice since WW II, stems from the United Nations Charter, and the Kellogg-Briand Peace Pact, Renunciation of War As An Instrument of National Policy, 27 Aug 1928, 46 Stat. 2343; TS 796; 2 Bevans 732; 94 LNTS 57 (1929), found in AFP 110-20, at 11-7. All US Defense Agreements are collective self defense arrangements. See, for example, AFP 110-20, at 3-1. Also, Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, G.A. Res. 2625 (XXV) of 24 Oct 1970, discussed in relation to force, 12 Whiteman 39 (an elaboration of certain principles of the UN Charter, not a revision or amendment thereof). On 14 December 1974, the General Assembly adopted by consensus a Definition of Aggression. For US views accepting the definition, see 72 State Dept. Bull., 155 (3 Feb 1975), and Rovine, "Contemporary Practice of the

United States," 68 Am. J. Int'l. L. 720, 735 (1974). Authority of US Armed Forces to engage in armed conflict, under US domestic law, is a matter of US Constitutional law, not international law. War Powers Resolution, 50 U.S.C. § 1541; P.L. 93-148 (1973).

22 See authorities supra note 21; US Army, FM 27– 10, Law of Land Warfare 7 (1956) [herein FM 2710]; DOD Directive 5100.77, 5 Nov 1974, (Para V A.).

23 See statement of Secretary of State Dulles, commenting on the Korean War, in 39 State Dept. Bull. 604 (1958), reprinted 10 Whiteman 41-42. In Vietnam, the US position was that the conflict was international (N. vs S. Vietnam) whereas Hanoi regarded the conflict solely as a civil war in which there was unlawful US intervention. For discussion and authorities, see chapter 13, particularly footnote 2. A collection of Articles on the debate is found in Am. Soc'y. Int'l. L., The Vietnam War and International Law (3 Vols. 1968-1972). On historical application of the law of armed conflict in civil war, see International Law of Civil War, supra note 1. 24 In the past there has been, on occasion, differing international views on this subject and some differing practice particularly during World War II. The position expressed here represents the view of the US, the International Committee of the Red Cross, that adopted by the 1949 Geneva Conventions, as well as the 1907 Hague Regulations and Conventions. Clearly the law of armed conflict does not authorize aggression-nor does it condemn aggression-it exists independently of the causes of the conflict and applies regardless of the causes. For discussion, see US Naval War College, "The Law of War and Neutrality at Sea," 1955 International Law Studies, 3, 6, 8-9 (1957); Lauterpacht, "The Limits of the Operation of the Law of War," 30 Brit. Y. B. Int'l. L. 206, 212-73 (1953); “The Hostage Case," 11 US Trials of War Criminals Before the Nuremberg Military Tribunals 1246-47 (1948), reprinted 10 Whiteman 55; Taylor, "The Concept of Justice and the Laws of War," 13 Colum. J. Transnat'l. L. 189, 199 (1974); Carnegie Endowment for Int'l Peace, Report of the Conference on Contemporary Problems, The Law of Armed Conflicts 47 (1970).

25 See Restatement, Foreign Relations Law of the United States (2d) § 140 (1965); on the relationship between national (municipal) law and international law, see 1 Whiteman 103; Bishop, supra note 1; Friedmann, et al., supra note 5, at 100; 1 O'Connell, supra note 5, at 38; Brownlie, supra note 5, at 32.

26 See for example Ware vs. Hylton, 3 US (3 Dall.) 199 (1796); Foster vs. Neilson, 27 US (2 Pet.) 252; 314 (1829); Asakura vs. City of Seattle, 265 US 332, 341 (1924).

27 10 U.S.C. § 801-940 (1970).