« ПредыдущаяПродолжить »
The prohibitory effect of the law of war is not minimized by "military necessity” which has been defined as that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. Military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed with consideration for the concept of military necessity.
b. Binding on States and Individuals. The law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces.
The law of war is derived from two principal sources :
a. Lawmaking Treaties (or Conventions), such as the Hague and Geneva Conventions.
6. Custom. Although some of the law of war has not been incorporated in any treaty or convention to which the United States is a party, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law.
Lawmaking treaties may be compared with legislative enactments in the national law of the United States and the customary law of war with the unwritten Anglo-American common law. 5. Lawmaking Treaties
a. Treaties to Which the United States 18 a Party. The United States is a party to the following conventions pertinent to warfare on land: (1) Hague Convention No. III of 18 October 1907, Relative
to the Opening of Hostilities (36 Stat.2259, Treaty Series
538), cited herein as H. III. (2) Hague Convention No. IV of 18 October 1907, Respecting
the Laws and Customs of War on Land (36 Stat. 2277; Treaty Series 539), cited herein as H. IV, and the Annex thereto, embodying the Regulations Respecting the Laws and Customs of War on Land (36 Stat. 2295; Treaty Series
539), cited herein as HR. (3) Hague Convention No. V of 18 October 1907, Respecting
the Rights and Duties of Neutral Powers and Persons in Case of War on Land (36 Stat. 2310; Treaty Series 540), cited herein as H. V.
1 United States Statutes at Large,
(4) Hague Convention No. IX of 18 October 1907, Concerning
Bombardment by Naval Forces in Time of War (36 Stat.
2351; Treaty Series 542), cited herein as H.IX.
Adaptation to Maritime Warfare of the Principles of the
cited herein as H.X.
ers of War of 27 July 1929 (47 Stat. 2021; Treaty Series
846), cited herein as GPW 1929. (7) Geneva Convention for the Amelioration of the Condi
dition of the Wounded and Sick of Armies in the field of 27 July 1929 (47 Stat, 2074; Treaty Series 847), cited herein
as GWS 1929. (8) Treaty on the Protection of Artistic and Scientific Insti
tions and Historic Monuments of 15 April 1935 (49 Stat. 3267; Treaty Series 899), cited herein as the Roerich Pact. Only the United States and a number of the Ameri
can Republics are parties to this treaty. (9) Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the field of
12 August 1949 (T. I. A. S.2 3362), cited herein as GWS. (10) Geneva Convention for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (T. I. A. S. 3363), cited
herein as GWS Sea. (11) Geneva Convention Relative to the Treatment of Prison
ers of War of 12 August 1949 (T. 1. A. S. 3364), cited
herein' as GPW. (12) Geneva Convention Relative to the Protection of Civilian
Persons in Time of War of 12 August 1949. (T. I, A. S.
3365), cited herein as GC. b. Effect of the Geneva Convention of 1949. GWS replaces the previous Geneva Wounded and Sick Conventions of 22 August 1864, 6 July 1906, and 27 July 1929 in relations between parties to GWS (see GWS, art. 59). GWS Sea replaces Hague Convention No. X of 18 October 1907, for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906 in relations between parties to GWS Seå (see GWS Sea, art. 58). GPW replaces GPW 1929 in relations between parties to GPW (see GPW, art 134); in relations between parties to H. IV and the corresponding convention of 1899 and which are also parties to GPW, it is complementary
2 Treaties and Other International Acts Series.
to Chapter II of the HR (see GPW, art. 135). GC, in relations between parties to H. IV and the corresponding convention of 1899, is supplementary to Sections II and III of the HR (see GO, art. 154). 6. Custom
Evidence of the customary law of war, arising from the general consent of States, may be found in judicial decisions, the writings of jurists, diplomatic correspondence, and other documentary material concerning the practice of States. Even though individual States may not be parties to or otherwise strictly bound by H. IV and GPW 1929, the former convention and the general principles of the latter have been held to be declaratory of the customary law of war, to which all States are subject.
The Preamble to the HR specifically provides :
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. Similarly, a common article of the Geneva Conventions of 1949 (GWS, art. 63; GWS Sea, art. 62; GPW, art. 142; GC, art. 158) provides that the denunciation of (withdrawal from) any of the Geneva Conventions of 1949, * * * shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.
7. Force of the Law of War
a. Technical Force of Treaties and Position of the United States. Technically, each of the lawmaking treaties regarding the conduct of warfare is, to the extent established by its terms, binding only between the States that have ratified or acceded to, and have not thereafter denounced (withdrawn from), the treaty or convention and is binding only to the extent permitted by the reservations, if any, that have accompanied such ratification or accession on either side. The treaty provisions quoted in this manual in bold-face type are contained in treaties which have been ratified without reservation, except as otherwise noted, by the United States.
These treaty provisions are in large part but formal and specific applications of general principles of the unwritten law. While solemnly obligatory only as between the parties thereto, they may
be said also to represent modern international public opinion as to how belligerents and neutrals should conduct themselves in the particulars indicated.
For these reasons, the treaty provisions quoted herein will be strictly observed and enforced by United States forces without regard to whether they are legally binding upon this country. Military commanders will be instructed which, if any, of the written rules herein quoted are not legally binding as between the United States and each of the States immediately concerned, and which, if any, for that reason are not for the time being to be observed or enforced.
6. Force of Treaties Under the Constitution. Under the Constitution of the United States, treaties constitute part of the "supreme Law of the Land” (art. VI, clause 2). In consequence, treaties relating to the law of war have a force equal to that of laws enacted by the Congress. Their provisions must be observed by both military and civilian personnel with the same strict regard for both the letter and spirit of the law which is required with respect to the Constitution and statutes enacted in pursuance thereof.
c. Force of Customary Law. The unwritten or customary law of war is binding upon all nations. It will be strictly observed by United States forces, subject only to such exceptions as shall have been directed by competent authority by way of legitimate reprisals for illegal conduct of the enemy (see par. 497). The customary law of war is part of the law of the United States and, insofar as it is not inconsistent with any treaty to which this country is a party or with a controlling executive or legislative act, is binding upon the United States, citizens of the United States, and other persons serving this country. 8. Situations to Which Law of War Applicable
a. Types of Hostilities.' War may be defined as a legal condition of armed hostility between States. While it is usually accompanied by the commission of acts of violence, a state of war may exist prior to or subsequent to the use of force. The outbreak of war is usually accompanied by a declaration of war (see par. 20).
Instances of armed conflict without declaration of war may include, but are not necessarily limited to, the exercise of armed force pursuant to'a recommendation, decision, or call by the United Nations, in the exercise of the inherent right of individual or collective selfdefense against armed attack, or in the performance of enforcement measures through a regional arrangement, or otherwise, in conformity with appropriate provisions of the United Nations Charter.
6. Customary Law. The customary law of war applies to all cases of declared war or any other armed conflict which may arise between the United States and other nations, even if the state of war is not recognized by one of them. The customary law is also applicable to all cases of occupation of foreign territory by the exercise of armed force, even if the occupation meets with no armed resistance.
c. Treaties. Treaties governing land warfare are applicable to various forms of war and armed conflict as provided by their terms. The Hague Conventions apply to "war.” Common Article 2 of the Geneva Conventions of 1949 states:
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. (GWS, GWS Sea, GPW, GC, art. 2.)
d. Special Case of Civil Wars. See paragraph 11. 9. Applicability of Law of Land Warfare in Absence of a Declaration
of War As the customary law of war applies to cases of international armed conflict and to the forcible occupation of enemy territory generally as well as to declared war in its strict sense, a declaration of war is not an essential condition of the application of this body of law. Similarly, treaties relating to "war" may become operative notwithstanding the absence of a formal declaration of war. 10. When Law of Land Warfare Ceases To Be Applicable
The law of land warfare generally ceases to be applicable upon:
a. The termination of a war by agreement, normally in the form of a treaty of peace; or
b. The termination of a war by unilateral declaration of one of the parties, provided the other party does not continue hostilities or otherwise decline to recognize the act of its enemy; or
c. The complete subjugation of an enemy State and its allies, if prior to a or b; or
d. The termination of a declared war or armed conflict by simple cessation of hostilities.
However, certain designated provisions of the Geneva Conventions of 1949 (see GC, art. 6; par 249 herein) continue to be operative, not