The Modern Law of Land Warfare

By Morris Greenspan

This title is part of UC Press's Voices Revived program, which commemorates University of California Press’s mission to seek out and cultivate the brightest minds and give them voice, reach, and impact. Drawing on a backlist dating to 1893, Voices Revived makes high-quality, peer-reviewed scholarship accessible once again using print-on-demand technology. This title was originally published in 1959.

• Language: English
• Publisher: University of California Press
• Release date: Nov 15, 2023
• ISBN: 9780520345898

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THE MODERN LAW OF LAND WARFARE

MORRIS GREENSPAN

THE

MODERN

LAW

OF LAND

WARFARE

1959

UNIVERSITY OF CALIFORNIA PRESS

BERKELEY AND LOS ANGELES

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

© 1959 BY THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

PUBLISHED WITH THE ASSISTANCE OF A GRANT FROM THE FORD FOUNDATION

LIBRARY OF CONGRESS CATALOG CARD NUMBER: 59-5145 PRINTED IN THE UNITED STATES OF AMERICA DESIGNED BY JOHN B. GOETZ

To

Sophie, Ruth, and Jonathan

PREFACE

The purpose of this work is to present an accurate, comprehensive, and systematic statement of the international law of war on land as it exists today. The events of World War II and the wars, including the Korean war, which have followed; radical innovations in methods and instruments of warfare; a massive array of case law, most strikingly represented by the war-crimes trials of World War II; as well as great new conventions such as the four Geneva Conventions of 1949, have all rendered imperative the restatement of that law. It is essential that this considerable material be related in ordered form to the body of law previously existing, to form with it an integrated whole.

The law of war is still indispensable, because war still has its function in our society. With the promulgation of the United Nations Charter it was hoped and believed that the law of war belonged to an unregretted past, something that had no place in an ordered, peaceful, international society. Unfortunately, events have demonstrated that the function of war has not yet been replaced by adequately efficient legal procedures.

The function of war is to settle differences between nations which have not been settled by other means. This work sets out a number of circumstances where resort to war is legitimate under present international law. In addition, if a nation resorts to war contrary to international law, the rules of warfare apply equally to this illegal war. Even should the function of enforcing world order devolve entirely on the United Nations, the use of such force must necessarily be regulated by a body of law. As the creature of international law, the United Nations must uphold in its enforcement actions the existing international laws for the conduct of war.

The last decades have seen the creation of weapons unprecedentedly powerful. The fact that weapons are in existence which could effectively wipe out life on earth does not in itself do away with laws of warfare which mankind has painfully evolved through the centuries. On the contrary, the very existence of such weapons demands the tightening of such laws and the institution of measures to make sure that they are not evaded. Until international law evolves new criteria, the legality of newly discovered weapons can only be judged according to established principles of law. It is for the world community to make clear beyond any doubt the legal status of mass destruction and blind weapons, particularly nuclear weapons.

This work is offered as a practical text. It has been closely documented and is supported by authoritative references. My aim has been to state the law as clearly and as accurately as possible, avoiding partisan expression and viewpoint on my part. Where the law is doubtful, it is given so, and if my opinion is expressed there, it is set forth as an opinion, not as the law. No attempt has been made to reform any part of the law; that is the function of the world community. But an accurate statement of the law is a condition precedent to any attempt at reformation. While the book does not treat air and sea warfare separately, the laws of air and sea warfare are incorporated so far as they affect aspects of war on land. In fact, most of the law of air warfare is included, as well as new developments affecting all phases of warfare.

I wish to thank those who in any way contributed to the progress of this work. First and foremost, my thanks go to my dear wife, who alone made this work possible. My particular thanks also go to the following: to Miss Lucie E. N. Dobbie and Mr. Maxwell E. Knight of the University of California Press at Berkeley for their sustained interest in this work and to Mr. Knight for his valued editorial assistance in processing the manuscript for the press; to Mr. Claude Pilloud of the International Committee of the Red Cross, Geneva, for an interpretation of Article 68, second paragraph, of Geneva Convention IV, 1949; to the Library of Congress for the loan of several books and to Dr. Sergius Yakobson, chief of its Slavic Division, for a list of source materials on the Soviet Russian interpretation of the laws and usages of war; to the late Mr. A. Izgur, of Los Angeles, for some translation from the Russian; to the libraries of the University of California (Los Angeles) and the University of Southern California, Los Angeles County Law Library, Los Angeles City Central Library, and their staffs, with particular acknowledgments to Miss Hilda Gray and her staff in the Government Publications Room at the University of California, Los Angeles, and Mrs. I. O. Haberly of the University of Southern California library.

M. G.

M. G.

Los Angeles, California January, 1959

CONTENTS

CONTENTS

I THE PLACE OF LAW IN WAR

THE APPARENT CONTRADICTION OF LAW AND WAR

HOW LAW DEVELOPED IN WAR

THE SOURCES OF THE LAW OF WAR

THE SANCTIONS BEHIND THE LAWS OF WAR

THE NATURE OF INTERNATIONAL LAW

THE POLITICAL NATURE OF WAR

THE URGENT NEED FOR A NEW CONVENTION ON THE LAWS OF WAR

EFFECT OF THE CHARTER OF THE UNITED NATIONS ON THE LAWS OF WAR

DOES THE CHARTER OUTLAW WAR?

INDIVIDUAL RESPONSIBILITY FOR WAR CRIMES UNDER THE CHARTER

WARFARE WITH UNCIVILIZED PEOPLES

II WAR BEGINS

DECLARATION OF WAR

LAWFUL AND UNLAWFUL WAR

TREATMENT OF RESIDENT ENEMY ALIENS

III THE ARMED FORCES

BELLIGERENTS AND NONBELLIGERENTS

LAWFUL BELLIGERENTS

REGULAR ARMED FORCES

IRREGULAR ARMED FORCES

THE Levée en Masse

UNCIVILIZED COMBATANTS

IV THE WOUNDED, SICK, AND DEAD OF THE ARMED FORCES

INTRODUCTORY

THE PROVISIONS OF GENEVA CONVENTION I, 1949

GENERAL APPLICATION OF THE CONVENTION

SUPERVISION BY PROTECTING POWERS AND HUMANITARIAN ORGANIZATIONS

THE WOUNDED AND SICK245 246

THE DEAD

THE STATUS OF THE PERSONNEL

PROTECTION OF MEDICAL UNITS AND ESTABLISHMENTS

BUILDINGS AND MATERIAL OF MEDICAL UNITS AND ESTABLISHMENTS

MEDICAL TRANSPORTS

THE DISTINCTIVE EMBLEM OF THE MEDICAL SERVICES

EXECUTION OF THE CONVENTION

REPRESSION OF ABUSES AND INFRACTIONS OF THE CONVENTION 315

V PRISONERS OF WAR

INTRODUCTORY

THE PROVISIONS OF GENEVA CONVENTION ÏII, 1949

THE PERSONS AND CIRCUMSTANCES TO WHICH THE CONVENTION APPLIES

SUPERVISION BY PROTECTING POWERS AND HUMANITARIAN ORGANIZATIONS

PROTECTION OF PRISONERS OF WAR; GENERAL PROVISIONS

CAPTIVITY

BEGINNING OF CAPTIVITY

INTERNMENT OF PRISONERS OF WAR

General Provisions

THE QUARTERS, FOOD, AND CLOTHING OF PRISONERS OF WAR

HYGIENE AND MEDICAL ATTENTION

Religious, Intellectual, and Physical Activities

Discipline

Rank of Prisoners of War

Transfer of Prisoners of War after Arrival in Camp

LABOR OF PRISONERS OF WAR

FINANCIAL RESOURCES OF PRISONERS OF WAR

RELATIONS OF PRISONERS OF WAR WITH THE EXTERIOR

RELATIONS BETWEEN PRISONERS OF WAR AND THE AUTHORITIES

Complaints of Prisoners of War Respecting the Conditions of Captivity

Prisoner of War Representatives

Penal and Disciplinary Sanctions

TERMINATION OF CAPTIVITY

DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL COUNTRIES

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

EXCHANGE OF PRISONERS OF WAR

DEATH OF PRISONERS OF WAR

INFORMATION BUREAUS AND RELIEF SOCIETIES FOR PRISONERS OF WAR

EXECUTION OF THE CONVENTION

VI THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR

A NEW DEPARTURE

THE PROVISIONS OF GENEVA CONVENTION IV, 1949

PERSONS AND CIRCUMSTANCES TO WHICH THE CONVENTION APPLIES

SUPERVISION BY PROTECTING POWERS AND HUMANITARIAN ORGANIZATIONS

PROTECTION OF THE ENTIRE POPULATIONS OF THE BELLIGERENTS 547

STATUS AND TREATMENT OF PROTECTED PERSONS

PROVISIONS APPLICABLE TO ALL PROTECTED PERSONS

REGULATIONS FOR THE TREATMENT OF INTERNEES

General Provisions

Places of Internment

Food and Clothing

Hygiene and Medical Attention

Religious, Intellectual, and Physical Activities

Labor Regulations

Personal Property, Financial Resources, and Identity Documents

Administration and Discipline

Relations with the Exterior

Penal and Disciplinary Sanctions

Transfer of Internees

Deaths

Release, Repatriation, and Accommodation in Neutral Countries

NATIONAL INFORMATION BUREAUS AND THE CENTRAL INFORMATION AGENCY

EXECUTION OF THE CONVENTION

THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

THE PROVISIONS OF THE CONVENTION ON GENOCIDE, 1948

VII OCCUPATION OF TERRITORY, MILITARY GOVERNMENT, AND CIVIL AFFAIRS

A SURVEY

WHAT OCCUPATION IS

CONDUCT OF THE OCCUPATION

PROCLAMATIONS, ORDINANCES, ORDERS, AND INSTRUCTIONS

ADMINISTRATION OF OCCUPIED TERRITORY; GENERAL PRINCIPLES

VARIOUS ASPECTS OF ADMINISTRATION

CIVIL-AFFAIRS AGREEMENTS FOR LIBERATED AREAS

ADDENDUM STATUS OF FOREIGN ARMED FORCES IN FRIENDLY TERRITORY NOT UNDER THEIR OCCUPATION

JUSTICE IN OCCUPIED TERRITORIES

LOCAL OFFICIALS IN OCCUPIED TERRITORY

STATUS OF THE GENERAL POPULATION IN THE OCCUPIED TERRITORY

VIII ENEMY PROPERTY

GENERAL PRINCIPLES REGARDING ITS TREATMENT

ENEMY PROPERTY INVOLVED IN ACTIVE MILITARY OPERATIONS

ENEMY PROPERTY IN OCCUPIED TERRITORY972

PUBLIC PROPERTY

PRIVATE PROPERTY

THE CUSTODIAN OF ENEMY PROPERTY

REPARATIONS

IX METHODS AND INSTRUMENTS OF WARFARE

THE PRINCIPLES GOVERNING THE CONDUCT OF WARFARE

WHETHER CERTAIN MEANS OF INJURY ARE PERMISSIBLE

RUSES OF WAR

PROPAGANDA

INTELLIGENCE

IN GENERAL

ESPIONAGE

WAR TREASON

BOMBARDMENT, SIEGE, AND ASSAULT

WHAT IS SUBJECT TO ATTACK

WARNING OF BOMBARDMENT

PROTECTED BUILDINGS, PLACES, AND OBJECTS

CONDUCT OF A SIEGE 1225

AIR WARFARE

INSTRUMENTS OF WARFARE

THE GENERAL PRINCIPLE

THE SPECIAL CONVENTIONS

SOME MODERN WEAPONS CONSIDERED

THE STANDARDS OF ASSESSMENT

FIRE WEAPONS

MINES

GUIDED MISSILES

BIG BOMBS

THE ATOMIC BOMB

THE HYDROGEN BOMB

X INTERCOURSE BETWEEN BELLIGERENTS

THE NECESSITY FOR NONHOSTILE RELATIONS

PARLEMENTAIRES AND FLAGS OF TRUCE

ARMISTICES

CAPITULATIONS

CARTELS, MILITARY PASSPORTS, SAFE-CONDUCTS, AND SAFEGUARDS

XI MEANS OF ENFORCEMENT OF THE LAWS OF WAR

IN GENERAL

REPRISALS

HOSTAGES

XII THE PUNISHMENT OF WAR CRIMES

A CARDINAL DEVELOPMENT

THE NUREMBERG JUDGMENT

CRIMES AGAINST PEACE

CRIMES AGAINST HUMANITY

CONVENTIONAL WAR CRIMES

ATTEMPTS, INCITEMENT, COMPLICITY, MEMBERSHIP IN A CRIMINAL ORGANIZATION, CONSPIRACY

THE GUILTY STATE OF MIND

CAPACITY

THE PLEAS OF SUPERIOR ORDERS AND NECESSITY1864

DURESS

THE PLEA OF SUPERIOR ORDERS

THE DEFENSE OF NECESSITY

WAR-CRIMES COURTS AND THEIR PROCEDURE

XIII NEUTRALITY IN PRESENT-DAY WAR

IS NEUTRALITY STILL POSSIBLE?

THE EFFECT OF THE COVENANT OF THE LEAGUE OF NATIONS

THE EFFECT OF THE PACT OF PARIS, 1928

THE EFFECT OF THE SAAVEDRA LAMAS TREATY, 1933

GENERAL POSITION IN REGARD TO NEUTRALITY ON THE OUTBREAK OF WORLD WAR II

THE EFFECT OF THE UNITED NATIONS CHARTER

NEUTRALIZED STATES AND WATERWAYS

NONBELLIGERENCY

SUMMARY

UNDECLARED WAR

XIV THE LAWS OF NEUTRALITY IN LAND WARFARE

THE SCOPE OF THE DISCUSSION

THE INVIOLABILITY OF NEUTRAL TERRITORY

THE USE OF COMMUNICATIONS ON NEUTRAL TERRITORY BY BELLIGERENTS

INTELLIGENCE ON NEUTRAL TERRITORY

ORGANIZATION AND RECRUITMENT OF BELLIGERENT FORCES ON NEUTRAL TERRITORY

THE SUPPLY OF WAR MATERIAL TO BELLIGERENTS FROM NEUTRAL TERRITORY

LOANS TO BELLIGERENTS

INTERNMENT OF BELLIGERENT FORCES IN NEUTRAL TERRITORY

STATUS OF ESCAPED PRISONERS OF WAR ON NEUTRAL TERRITORY

THE SICK AND WOUNDED OF BELLIGERENTS ON NEUTRAL TERRITORY, AND THE STATUS OF MEDICAL PERSONNEL AND CHAPLAINS

ACCOMMODATION OF PRISONERS OF WAR IN NEUTRAL COUNTRIES

INFORMATION BUREAUS TO BE INSTITUTED BY NEUTRAL POWERS

ACCOMMODATION OF CIVILIAN INTERNEES IN NEUTRAL COUNTRIES

THE STATUS OF NEUTRAL PERSONS

THE STATUS OF NEUTRAL AIRCRAFT AND THEIR PERSONNEL

THE BELLIGERENT RIGHT OF ANGARY

REPRISALS BETWEEN BELLIGERENTS WHICH AFFECT NEUTRALS

REMEDIES FOR BREACH OF NEUTRALITY

XV MEANS AND EFFECTS OF TERMINATION OF WAR

INTRODUCTORY

TREATY OF PEACE

SUBJUGATION

SIMPLE CESSATION OF HOSTILITIES

GENERAL EFFECTS OF TERMINATION OF WAR

XVI CIVIL AND COLONIAL WAR

Appendix I DRAFT AGREEMENT RELATING TO HOSPITAL ZONES AND LOCALITIES (ANNEX I TO GENEVA CONVENTION I, 1949) (See Article 23 of that convention.) DRAFT AGREEMENT RELATING TO HOSPITAL AND SAFETY ZONES AND LOCALITIES (ANNEX I TO GENEVA CONVENTION IV, 1949) (See Article 14 of that convention.)

Appendix II REGULATIONS CONCERNING COLLECTIVE RELIEF (ANNEX III TO GENEVA CONVENTION III, 1949) (See Article 73 of that convention.)

Appendix III MODEL AGREEMENT CONCERNING DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL COUNTRIES OF WOUNDED AND SICK PRISONERS OF WAR (ANNEX I TO GENEVA CONVENTION III, 1949) (See Article 110 of that convention.)

Appendix IV REGULATIONS CONCERNING MIXED MEDICAL COMMISSIONS (ANNEX II TO GENEVA CONVENTION III, 1949) (See Article 112 of that convention.)

Appendix V DRAFT REGULATIONS CONCERNING COLLECTIVE RELIEF (ANNEX II TO GENEVA CONVENTION IV, 1949) (See Article 109 of that convention.)

Appendix VI THE HAGUE RULES OF AIR WARFARE, 1923

LIST OF CASES CITED IN TEXT AND FOOTNOTES

LIST OF TREATIES CITED IN TEXT AND FOOTNOTES

BIBLIOGRAPHY OF WORKS REFERRED TO IN THE TEXT AND FOOTNOTES

INDEX

I

THE PLACE OF LAW

IN WAR

THE APPARENT CONTRADICTION OF LAW AND WAR

At first sight law and war are terms which negate each other. Law generally implies an orderly polity where human relationship and behavior are governed by inescapable rules. Normally, such rules both promote peace and require peace for their operation. The rule of law and the existence of peace have, therefore, come to be regarded as interchangeable expressions.

War, on the other hand, appears to connote the abandonment of the restraint of rules of behavior in international intercourse, by substituting in their place reliance on brute force. No judicial consideration of rights and wrongs resolves the issue between warring nations. That is decided by might alone. The victor shall not be asked later on whether we told the truth or not. In starting and making a war, not the Right is what matters, but Victory, Hitler claimed.1

What, therefore, has law to do with war, and war with law?

HOW LAW DEVELOPED IN WAR

In early historical times war was indeed waged with all the unalleviated cruelty of which human fiendishness is capable. So far as law had relation to such contests, they were governed only by the law of tooth and claw or the law of the jungle, that is, by no law at all as it is conceived in the science of jurisprudence. However, just as man developed in other ways, so did his conduct of war. Warfare remained basically as destructive as ever, even more so with the invention of still more deadly weapons and new methods. Nevertheless, those who conducted wars saw there were definite advantages in observing certain restraints based upon reason, provided the enemy did likewise. The laws of chivalry of the Middle Ages and the influence of Christianity also contributed to this mitigation. For instance, the white flag of truce came to be respected and those who conducted parleys under its cover. War became no less deadly, but wanton savagery lessened.

Gradually such practices were so universally observed that they became usages or customs of warfare, hardening into rules of legal effect, so that their infringement was deemed a crime and offenders falling into enemy hands were punishable as war criminals. Trials of war criminals are by no means a modern concept. A noteworthy example took place in 1474, when one Sir Peter of Hagenbach was tried at Breisach, Germany, on crimes analogous to the crimes against humanity preferred at present-day Nuremberg.²

By 1625, such rules had so crystallized that Grotius, the greatest though not the first in his field, the man who is regarded as the father of modern international law, was able to collate the writings of his predecessors and set them down in three volumes entitled De Jure Belli ac Pads Libri Tres (On the Law of War and Peace). This work of the Dutch savant is the cornerstone of modern international jurisprudence.

War, like most other fields of human activity, today is regulated and contained by a body of laws. These laws, which form part of international law, it is the purpose of this work to consider.

THE SOURCES OF THE LAW OF WAR

What is called the modern law of war is derived from a number of sources. There are, first, the customs or usages of war generally accepted by the nations of the world,³ which have been already mentioned . These can fittingly be compared to the common law of the Anglo-Saxon countries, 4 a system of organic growth finding its origin in man’s natural sense of reason and justice.

Such customary rules spring from what Grotius called the law of nature, which he defined in the first chapter of his work, under the title What is War? What is Law?, as a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity, and that in consequence, such an act is either forbidden or enjoined by the author of nature, God. 5

This primary source of international law lies, therefore, essentially in man’s innate sense of justice, which forms a bottomless well to be drawn upon when other springs run dry.

The next source lies in the treaties by which nations have agreed to be bound to each other. These may be termed the statute law of the nations; the law specifically enacted and reduced to signed documentary form. Particularly important are those treaties which have a great number of nations as parties (multilateral treaties), since their general acceptance demonstrates the generality of the principles which they contain. Examples are the Hague Conventions of 1899 and 1907, and the Geneva Conventions of 1929 and 1949.

The latter half of the nineteenth century and the early part of the twentieth saw a determined effort by the leading states to mitigate the evils of war by agreeing to codes of rules regulating its conduct. These efforts reached their highest expression in the conferences conducted in Holland at The Hague in 1899 and 1907. The Hague Regulations (The Regulations Respecting the Laws and Customs of War on Land) which were annexed to the fourth of the Hague Conventions of 1907, still form basically the modern soldier’s vade mecum.

Much of the regulations is merely the setting down of already exist ing customs of war,6 and the regulations do not pretend to cover all contingencies. The authors of that convention were under no delusions concerning the imperfections in their joint labors and set on record the following declaration as a safeguard in cases not covered by the regulations formulated. In the preamble to the convention they state:

According to the views of the High Contracting Parties, these provisions, the drafting of which has been inspired by the desire to diminish the evils of war, so far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.

It has not, however, been found possible at present to concert stipulations covering all the circumstances which arise in practice;

On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in default of written agreement, be left to the arbitrary opinion of military commanders.

Until a more complete code of the laws of war can be drawn up, the High Contracting Parties deem it expedient to declare that, in cases not covered by the rules adopted by them, the inhabitants and the belligerents remain under the protection and governance of the principles of the law of nations, derived from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience.7

Therefore, where the enacted rules of war do not cover a particular case, the nations still have recourse to the first source discussed.

To this view the International Military Tribunal which tried the major German war criminals at Nuremberg, 1945-1946, has added its massive weight. In its judgment that court declared; The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing. 8

The testimony of those who are skilled in it, 9 that is, the law of nations, is another source for establishing the terms of that law. Since the courts applying the laws of war have to find authoritative expression of them, inevitably Grotius and other distinguished international jurists are themselves cited in proof. The courts draw upon their writings when amplification and explanation are needed for the law bearing on an issue. In the same way, the labors and publications of the recognized international law associations, such as the Institut de Droit International, the International Law Association, and the American Institute of International Law, carry persuasive weight.

Naturally, decisions of the world’s great courts have contributed to the laws of war. Some such tribunals are international courts specifically set up to rule between states, as was the Permanent Court of International Justice at The Hague, and its present-day successor the United Nations’ International Court of Justice, at the same place. Others are national courts whose decisions on international law command world-wide respect. Examples are the United States Supreme Court and the British prize courts.

For instance, two recent judgments of the United States Supreme Court, Ex parte Quirin, et al. (The Case of the German Saboteurs) 10 and In re Yamashita,11 were often cited by the various tribunals, including the Nuremberg Tribunal, which tried the German war criminals after World War II.

Similar to the judgments of the permanent courts are the decisions of notable ad hoc international tribunals. Such was the oft-quoted award in the international arbitration which settled the Alabama dispute between the United States and Britain, and which arose from the American Civil War. A more modern instance is the judgment of the Nuremberg Tribunal.

However, international law knows of no system of precedent corresponding to that which obtains under Anglo-Saxon systems of law. A decision rendered has no binding effect other than between the parties to that case. This is emphasized in Article 59 of the Statute of the International Court of Justice, which states: The decision of the Court has no binding force except between the parties and in respect of that particular case.

Other international courts, therefore, as well as the court which handed down the judgment, are free—under international law—to vary such a decision in a later case. This means that the intrinsic merits of a judgment lend it authority, not just the standing of the tribunal which issued it. Such a precedent is termed persuasive; if another court thinks well of it, then it may adopt the same process of reasoning in rendering its own judgment. There is no compulsion, except that which arises from intellectual conviction. This view corresponds to that followed in the municipal (national) legal systems on the European continent.

Finally, another source of international law lies in those general principles which are common to the legal systems of the nations of the world.12 If murder is a crime condemned and punished by the laws of each separate state, then it would be curious indeed if murder were not so regarded and treated in the law governing the international community.

At the Nuremberg Trial it was submitted by the Defense that international law is concerned with the action of sovereign states, and provides no punishment of individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. 13

Grotius had already mentioned such a point of view. He quotes: Cyprian declares: ‘Murder committed by individuals is a crime; when accomplished by public authority it is called a virtue. Wicked deeds acquire immunity not on the plea that they are void of guilt but because their ruthlessness is on a grand scale? Later he adds: ‘The laws have come to terms with crimes; whatever is public begins to be permissible’. 14

The Nuremberg Tribunal firmly rejected such submissions by the defense (Nuremberg judgment, p. 52), and so affirmed the proposition that murder is murder in all languages, not excluding the language used between nations. It is noteworthy that in the German war crimes trials following on the Nuremberg Trial, the counts alleging the charges contained such phrases as: The acts and conduct of the defendants … constitute violations of the … general principles of criminal law as derived from the criminal law of all civilized nations. 15

THE SANCTIONS BEHIND THE LAWS OF WAR

It is clear international law that however international war breaks out, and whether the waging of that war is justifiable or not, so long as a state of war exists the rules of war apply. Even a war, illegal … is nevertheless … regulated by the laws of war. This rule of international law is firmly established and recognized by all leading international lawyers. 16 17 18 19 20 21 22 In conformity with the view which has remained unchallenged … Grotius lays down that the question of the justice or injustice of the war is irrelevant for the purpose of observing the rules of warfare as between the belligerents." 23

Assuming, therefore, that the laws of war apply to all types of warfare of an international character, how are such laws enforced? What sanctions, to use the technical expression, may be imposed to ensure conformity with those norms? The combatant states are already at war, their reliance is on force; the war may have been entered upon by one or both parties in defiance of world opinion; what or who is to compel them to abide by any rules which may exist? In effect, each nation may be supposed to be a law unto itself in such circumstances, because there is no supernational authority to exercise police powers over them.

It may be argued that the United Nations is such a power; that it exists not only to suppress illegal wars but to secure respect for the obligations arising from treaties and other sources of international law, as stated in the preamble of the Charter. There are in fact a number of instances where wars may still be fought without contravening the terms of the Charter, as will be discussed later.24 But whatever the circumstances of United Nations intervention in an international dispute, whether against an aggressor or to compel compliance with the rules of war, in the last resort the United Nations itself would be thrown back on military action under Chapters VII and VIII of the Charter to coerce obedience. In such circumstances, the United Nations itself would become a belligerent, as happened in the Korean war, 1950-1953; a fact which the term police action, 25 originally applied to that conflict, cannot obscure.

If then the United Nations were a party to a war in its supernational role, how could it ensure that the enemy would abide by the recognized rules of warfare? Who would be the universal umpire in such wars?26

It is further to be noted that, so far, the international community has not established a permanent international criminal court, with jurisdiction to try war criminals. The Nuremberg Tribunal was created only ad hoc. Such a permanent court is contemplated by the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on December 9, 1948, in Article VI and the annexed resolution which referred the matter for study by the International Law Commission.27 However, a court of this nature has yet to come into existence.

In practice, respect for the laws of war is compelled by several means. Such are reprisals, which in war consist of retaliatory actions, in effect a payment in kind, to force an offending party to conform to the rules of warfare. The fear alone of reprisals acts to a great extent as a deterrent. In the past, hostages have also been used for this purpose, but this practice is now obsolescent, if not obsolete. Individuals guilty of war crimes who fall into enemy hands may be tried and punished.

The foregoing are all forcible means, but there also exist more pacific and subtle methods to compel adherence to law by an enemy careless of international rules. Complaints lodged with the enemy (under flags of truce or through a third, neutral, party) are the usual prelude to reprisals where satisfaction is not given. The complaints are sometimes transmitted specifically to neutral states, not necessarily to enlist their good offices or mediation, but to demonstrate to the world at large the evil ways of the enemy, and so to alienate neutral opinion. The sanction of world opinion is powerful, increasingly so with the development of psychological warfare and the fight for men’s minds.

The adverse effect of a belligerent’s illegal actions upon world opinion may be decisive, finally turning neutrals into participants in the struggle, as happened in the two world wars when the United States became alienated by German methods of warfare (such as the unrestricted submarine war of World War I) and finally intervened, rendering Germany’s defeats inevitable.

Neutral opinion is, in fact, not always content to wait for an invitation to express itself. International law recognizes that a neutral may offer its good offices or mediation of its own volition.28

The sanctions of the laws of war, therefore, fall into two main groups. One, the application of retaliatory force and punishments; the other, the force of world opinion.

THE NATURE OF INTERNATIONAL LAW

That international law cannot be enforced in the same way municipal laws are brought to bear, brings up the root question: whether international law is law at all, or merely a set of pious aspirations. Can there be laws which are not administered and enforced by a dominant political authority?

The difficulty in envisaging such a point of view was exemplified by the English school of jurists, which for a long time balked at accepting international law as true law. In this it was chiefly influenced by the writings of the nineteenth-century Englishman, John Austin, a disciple of Jeremy Bentham, the utilitarian philosopher.

Austin, and those who followed him (the Positivist or Analytical School of Jurisprudence), conceived of law as general commands (or rules) laid down for the guidance of persons by politically sovereign authorities having power to enforce those commands, and to whom the members of the community were in the habit of obedience. They could not contemplate as law rules which were not backed up by the power of a political superior.

To this school of legal thought, international law has provided a perennial puzzle. Especially, as before the days of the League of Nations and United Nations there was no authority which could be regarded as supernational. The world called international law law, regarded it as such, expected obedience to its rules—and yet where was the political superior, the sovereign, who would enforce those norms?

So, instead of widening their conception of law to include a system which the world in general regarded as truly legal, they proceeded to fit international law to their preconceived ideas. Sir T. E.

Holland, for instance, once even president of the Institut de Droit International, a leading association devoted to the study of that law, declared that international law can indeed be described as law only by courtesy, since the rights with which it is concerned cannot properly be described as legal. 29 He also stated, ‘International law’ is law only by analogy. 30 31

Holland reasoned in this manner:

It is plain that if Law be defined as we have defined it, a political arbiter by which it can be enforced is of its essence, and law without an arbiter is a contradiction in terms. Convenient therefore as is on many accounts the phrase International Law, to express those rules of conduct in accordance with which, either in consequence of their express consent, or in pursuance of the usage of the civilised world, nations are expected to act, it is impossible to regard these rules as being in reality anything more than the moral code of nations.32 33

Ideas have changed since Holland’s day among many legal theorists in England,34 and even in his time weighty English opinion was prepared to hold that international law was true law,35 that is, rules of obligatory force. Today, most legal opinion throughout the world recognizes that international law is true law. Indeed, it would be difficult to hold otherwise since the world as a whole calls it law, regards it as law, accepts it as law, and expects it to be obeyed as law, even though the means of enforcing it are defective. Law is the expression of a social relationship and society itself must, therefore, be the final arbiter as to what it regards as law in those relationships.36

It is acknowledged that international law is still somewhat primitive and defective; that it corresponds very much to municipal (national) law in its early stages, before strong central governing bodies emerged.37 However, it is still law and must be obeyed as such, at the peril of the offender, as the war-crimes trials at Nuremberg and elsewhere after World War II demonstrated. The sanction exists in international law, as in other law, although the machinery for applying the sanction is at present uncertain and often tardy in operation.38

Grotius, in fact, recognizing the absence of an international governing body, declared that any sovereign power could punish offenses against international law, even when the offenses were directed neither against it nor its subjects. The fact must also be recognized, he said, that kings, and those who possess rights equal to those kings, have the right of demanding punishments not only on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever. … Truly it is more honorable to avenge the wrongs of others rather than one’s own, in the degree that in the case of one’s own wrongs it is more to be feared that through a sense of personal suffering one may exceed the proper limit or at least prejudice his mind. 39

In effect, therefore, Grotius regarded each sovereign power as a guardian of the whole of international law. This view accords with modern practice,40 and in relation to war crimes has been termed the doctrine of universality of jurisdiction.41 At the war-crimes trials after World War II in Germany and Japan, the judges who tried particular defendants were not necessarily from the nation injured by a particular accused’s alleged criminal acts. It is agreed, for instance, that judges from neutral nations and even the vanquished powers could have been invited to sit in judgment at these trials. In fact, it is the complaint of some jurists regarding the Nuremberg Trial that this was not done.42 43 A further and even more recent instance of the doctrine is contained in the articles⁴⁴ of the four Geneva conventions of 1949 which make provision for the punishment of grave breaches of those conventions. Each party to the conventions is placed under the obligation of punishing "grave breaches/’ irrespective of whether the injuries constituting the breaches were directed against it or its nationals. In other words, states neutral to a conflict are under a duty to punish breaches of the conventions.

International law not only regulates the rights which prevail between State and State,45 but prescribes rights and liabilities for individuals. As the Nuremberg Tribunal made clear in its judgment: It was submitted [by the defense] that international law is concerned with the actions of sovereign States, and provides no punishment for individuals, and further, that where the act in question is an act of State, those who carry it out are not personally responsible but are protected by the doctrine of the sovereignty of the State. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. 46

The same point of view was expressed after World War II by an American court in the war-crimes trial of the United States v. von Leeb, et al. (The High Command Case), in the following unambiguous terms: It would be an utter disregard of reality and but legal shadow-boxing to say that only the state, the inanimate entity, can have guilt, and that no guilt can be attributed to its animate agents who devise and execute its policies. 47 The same court also stated: It is self-evident that national policies are made by man. When men make a policy that is criminal under international law, they are criminally responsible for so doing. That is the logical and inescapable conclusion. 48

The Supreme Court of the United States has declared: From the very beginning of its history this court has recognized and applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. 49 Also, An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. 50

In 1921, the German Supreme Court at Leipzig in the case of the hospital ship Llandovery Castle, destroyed in World War I by a German submarine which fired on the survivors in the lifeboats, ruled that criminal international law was applicable to individuals and stated that the rule of international law which is here involved is simple and is universally known. 51 52

It has been aptly stated: The international legal order does not operate entirely and exclusively on the corporate entities of nations, but finally functions with reference to human beings of flesh and blood. 43

THE POLITICAL NATURE OF WAR

It is because of the primitive nature of present-day international law and its ensuing imperfections that, tragic as it is, war is part of the human scene. In the absence of a world body whose rulings are accepted without question in all circumstances war still fulfils a function in the modern world; it is the ultimate arbiter when all other means of settling international disputes fail, whether it is termed a police action 53 by the United Nations, a border dispute between India and Pakistan or a plain old-fashioned war between states where action by the United Nations Security Council has been vetoed by one of its permanent members. See Article 27 (3) of the Charter.

Indeed, war considered as an arbiter presupposes conflicting claims of right on either side, whereas war has also been conceived of as a means of implementing national policy by one state against another, without necessarily founding such policy on a claim of right. Von Clausewitz defined war thus: War is nothing but a continuation of political intercourse with an admixture of other means. ⁵⁴ Lenin pointed up von Clausewitz’s statement by declaring: War is a continuation of the same policies by using other (namely, forcible) means. 55

In one of the important war-crimes trials following World War II, the court gave the following description of the nature and characteristics of war:

We need not attempt a definition that is all inclusive and all exclusive. It is sufficient to say that war is the exerting of violence by one state or politically organized body against another. In other words, it is the implementation of a political policy by means of violence. Wars are contests by force between political units but the policy that brings about their initiation is made and the actual waging of them is done by individuals … The point we stress is that war activity is the implementation of a predetermined national policy. Likewise, an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or to a sense of the futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat … The initiation of war or an invasion is a unilateral operation. When war is formally declared or the first shot is fired the initiation of the war has ended and from then on there is a waging of war between two adversaries.56

It is true that in 1928 the Treaty for the Renunciation of War, variously known as the Paris pact, the Kellogg pact, or the KelloggBriand pact, purported to abolish war as an instrument of national policy.57 Sixty-three nations, including all leading states, bound themselves by this treaty. According to its terms: The High Contracting Parties solemnly declare, in the names of their respective peoples, that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another (Article 1); and agree that the settlement of all disputes or conflicts, of whatever nature or of whatever origin they may be, which arise among them, shall never be sought except by pacific means (Article 2).

However, the pact, even according to its terms, did not abolish war, because without contravening its provisions war is legally permissible to its adherents in a number of situations. These are: in self-defense; by collective action under the United Nations Charter;58 between parties to the pact and states which are not parties; and as against a party to the pact which resorts to war illegally contrary to the terms of the pact. It is noteworthy that even as the pact was coming into being, Britain as a party reserved its freedom of action relating to Article i in certain regions of the world the welfare and integrity of which constitute a special and vital interest for our peace and safety.59

Naturally, those states which did not adhere to the pact were not bound by its clauses.

World War II demonstrated unmistakably that such pacific means as had been devised until then were ineffective in replacing war as an instrument of national policy. Even the formulation of the United Nations Charter in 1945 has not prevented the eruption of numerous wars. The list of outbreaks since 1945 is long and varied. To mention some of the more prominent episodes: civil war in Greece with foreign assistance on both sides, conflict between India and Pakistan, the war between the Arab states and Israel, the Dutch-Indonesian war, British action in Malaya, French action in Indochina and Algeria, civil wars in China, Iran, Burma, the Philippines and Cuba, the Korean war, civil war in Hungary and Russian intervention, a further Israel-Egypt outbreak and Anglo-French conflict with Egypt.

Most of these conflicts either were, or started out as, civil wars or revolts against ruling powers. The problem of war not of an international character is most thorny. Rules of war have been designed to apply between states, that is, sovereign entities. Civil and internal colonial wars were, until the Geneva Conventions of 1949, left almost entirely to the regulation of the national law of the states concerned. This meant in practice that rebels had no legal status—other than that of criminals. Unregulated, under these circumstances, civil wars have turned out to be the most bitter and savage kinds of armed conflicts.

When, if ever, a rebel party succeeds in obtaining belligerent status, the rules of war finally come into full legal effect. This occurs in international law when the insurgents have in fact established themselves, and obtained recognition, as a belligerent community. To qualify for recognition of this nature, such a community must first have acquired all characteristics of a state, including a responsible government and territory. The responsibility of the government must be demonstrated internally by the orderliness of its administration, and externally by its willingness to accept the international obligations incumbent upon states, including observance of the rules of war. All the belligerent community lacks is the guarantee of permanence, which obviously depends upon the result of the conflict.

Recognition as a belligerent may then be afforded by the parent state or by foreign governments, although difficulties may arise where belligerent recognition is granted by the one and not by the others or vice versa. In such cases, the recognition of belligerency is not binding on the state or states which have not granted recognition.60 A foreign state should not grant recognition of belligerency unless its interests, or those of its nationals, are affected by the struggle.61 Recognition of belligerency before the conditions are present which justify recognition constitutes an unwarrantable interference in the affairs of the state where the struggle is taking place and, as such, an international wrong against the parent state.62 No special form is laid down for recognition of belligerency, although this may be done by a third state by means of a formal declaration of neutrality. Where a third state grants recognition of belligerent status, it assumes the legal position of a neutral in regard to that conflict.63

Naturally the mother state or lawful government will not be eager to grant belligerent status to rebels, because such recognition places a certain cachet of attainment on the revolt and admits the rebels to the first and lowliest rung in the community of nations.⁶⁴ For instance, other nations not involved acquire the status of neutrals, with corresponding obligations and rights. Usually the lawful government does not grant such belligerent recognition until forced by the pressure of events and the attitude of states outside the conflict.

When the play of political circumstances has brought this about, the rules of war come into legal effect. The intermediate period is usually marked by excesses, justified by the lawful government under national law for the repression of the insurrection, and by the revolutionaries as countermeasures in reprisal.

The question of the regulation of civil war assumes increasing importance due to the number of such wars in these days and the evident tendency to mask international war as such. Apart from the tragic nature of these conflicts, there is the inherent danger that they may overflow into widespread international war.

Recognizing this, each of the four Geneva Conventions for the Protection of War Victims concluded in 1949, which are the latest in the series of Geneva Conventions, makes provision in similar terms for obligatory standards to be applied as a minimum in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. ⁶⁵ These provisions will be discussed later.⁶⁶

Therefore, until the function of war is replaced by effective pacific means, until that most dangerous gap in world relations is bridged, war will remain: and if it does remain then it must be regulated by rules which command obedience—which is the purpose and function of the laws of war. The alternative is pure savagery.

THE URGENT NEED FOR A NEW

CONVENTION ON THE LAWS OF WAR

For the laws of war to command respect and obedience they must be adequate for their function. It is essential that these rules should be applicable to the circumstances of modern warfare and clearly and closely defined in their application. Further, the more stringently war is regulated the less likely there will be recourse to it. In other words, the more onerous the terms upon which wars are fought, the better the prospect for peace and the pacific settlement of disputes. All this emphasizes the urgent need for a new conference on the laws of war to replace the Hague Conventions, which, opinion generally agrees, are not adequate today to deal with the revolutionary developments both in warfare itself and in matters affecting warfare which have occurred since those conventions were formulated.67

The doubts and fears which hinder the calling of such a conference are illustrated by the views expressed in the United Nations International Law Commission in 1949.

The Commission considered whether the laws of war should be selected as a topic for codification. It was suggested that, war having been outlawed, the regulation of its conduct had ceased to be relevant. On the other hand, the opinion was expressed that, although the term laws of war ought to be discarded, a study of the rules governing the use of armed force—legitimate or illegitimate—might be useful. The punishment of war crimes, in accordance with the principles of the Charter and the judgment of the Nürnberg Tribunal, would necessitate a clear definition of those crimes and, consequently, the establishment of rules which would provide for the case where armed force was used in a criminal manner.

The majority of the Commission declared itself opposed to the study of the problem at the present stage. It was considered that if the Commission, at the very beginning of its work, were to undertake this study, public opinion might interpret its action as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for maintaining peace.68

However, political reality indicates the necessity for a new formulation of the laws of war. Armed force is being used in international relations; the threat of a third world war has overshadowed the world for a number of years past and, since the International Law Commission expressed the foregoing opinions, the Korean war broke out and once again demonstrated the pressing need for an authoritative restatement of such laws. If war comes in spite of all the re sources of pacific settlement, then a regulated war is a lesser evil than an unregulated war.

This was implicitly recognized by the United Nations General Assembly at the time it created the International Law Commission, because it then directed that body to

a) Formulate the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal and

b) Prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in subparagraph (a) above.69

In fact, a new conference on the laws of war would not constitute an admission of the failure to abolish war. It would merely tackle the problem of peace from a different angle, providing an additional safeguard for that dominance of law which, in the final analysis, is the only way in which war can ultimately be abolished. The strengthening of affirmative means to secure peace by the development of pacific methods for the settlement of international disputes can proceed at the same time.

This was the point of view of the Diplomatic Conference of Geneva, 1949, which concluded the four new Geneva Conventions for the Protection of War Victims, and whose Final Act was signed by fifty- nine nations on August 12, 1949. Although the purpose of the conference was to fill in some of the gaps in the laws governing war which were highlighted by the experience of World War II, the conference stated its wish

to affirm before all nations that, its work having been inspired solely by humanitarian aims, its earnest hope is that, in the future, Governments may never have to apply the Geneva Conventions for the Protection of War Victims; [and] that its strongest desire is that the Powers, great and small, may always reach a friendly settlement of their differences through cooperation and understanding between nations, so that peace shall reign on earth for ever.70

The four conventions of the Conference relate to the sick, the wounded, prisoners of war, and civilian persons in time of war. The signatories include both members and nonmembers of the United Nations. Closely related in purpose and subject matter to these conventions is also the post-war Genocide Convention, adopted by the General Assembly of the United Nations on December 9, 1948.

The need for the revision and modernization of the Hague Conventions is equally pressing.

EFFECT OF THE CHARTER OF THE UNITED

NATIONS ON THE LAWS OF WAR

DOES THE CHARTER OUTLAW WAR?

The question arises whether the establishment of the United Nations has outlawed war and, therefore, done away with the rules of war. The first words of the preamble to the United Nations Charter state: WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war.. Article 1 declares: The Purposes of the United Nations are: 1. To maintain international peace and security …"

Categorical directions are given by the Charter as to the manner in which disputes shall be settled between members of the United Nations. By Article 2 (3, 4), All Members shall settle their inter national disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.

It would appear, therefore, that on the basis of the citations from the foregoing article no member of the United Nations shall have recourse to war under any circumstances.

Furthermore, the injunction which is laid upon members is extended to nonmembers (irrespective of the consent of the latter) by Article 2 (6) which declares: The Organization shall ensure that states which are not Members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security. Considering that the present total strength of the United Nations is eighty-two nations,71 these are no idle words in relation to nonmembers, but can have positive significance if that overwhelming power is brought to bear.

However, in spite of the firm expressions quoted from the Charter, later articles make it clear that war still has its place even under the Charter. Its use has been limited, but it can still be legally employed in a number of circumstances.

The first instance arises under Article 42, which provides that the United Nations itself, through the Security Council, may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. This is war, as the Korean conflict which began in the summer of 1950 clearly demonstrated. It is surely not to be argued that, because such forcible means are used at the behest of the world organization against what are branded as international outlaws, such a conflict should be conducted with no regard to the rules of war. That would be a poor example on the part of the organization which is expected to set the standard of behavior for the world.72

By analogy with municipal criminal law the Korean war was initially termed a police action;64 that is to say an action by police against criminals. There are no niceties in such encounters in the national sphere, but it would be a serious error to treat international conflict on the same basis. There is a considerable difference between bringing to book a gang of bandits and collective action against a recalcitrant state.73 74 The opportunities for mischief are far greater in the latter connection, which makes it essential that every effort should be made to wage such an action according to the laws of warfare. This is for the benefit of all concerned, including the civilian population and United Nations soldiers.

The uncertainty expressed in some quarters concerning the legal status of the Korean conflict was reflected in the conduct of that war which produced accusation and counteraccusation of violation of the laws of war. On the United Nations side there were charges of atrocities against prisoners of war and wounded, on the other side complaints of atrocities, bombing of the peaceful population and bestial reprisals. 75 Cold-blooded mass murders of civilians have been alleged on both sides.

Early efforts were made to secure the application of the recognized rules of war. On July 12, 1950, the secretary-general of the United Nations sent telegrams to the foreign ministers of both North and South Korea referring to the gravely disturbing reports of the shooting of prisoners and other inhuman acts and urging them to accept the offer of the International Red Cross to cooperate with both governments in establishing measures for the application of the Geneva Conventions.76

On July 13, 1950, it was learned that the governments of both North and South Korea had informed the United Nations Security Council that they would observe the Geneva Convention on the treatment of prisoners.77

However, in practice the position continued unsatisfactory. For instance, for a long time no lists of prisoners of war were exchanged under the Geneva Convention, so that relatives were left with the torture of uncertainty concerning the fate of their near ones. The civilian population of Korea suffered particularly from the manner in which the hostilities were conducted.78 Nevertheless, by the time the armistice of July 27, 1953, had suspended hostilities in the Korean conflict, it was apparent that both sides had clearly recognized that a United Nations enforcement action, like other wars of an international nature, must be governed by the laws of war,79 and both sides had adduced such rules in matters relating to the conduct of the conflict.

In fact, as we have already stated, the legal position concerning war undertaken by the United Nations in its supernational role according to its obligations under the Charter is quite clear in international law.80 Such conflicts are governed by the laws of war, even though the enemy is fighting an illegal or unjustifiable war. The alternative is anarchy.

A second kind of war not illegal under the United Nations Charter could arise through the application of a veto in the Security Council under Article 27 (3) by one of the five permanent members, namely China, France, the U.S.S.R., the United Kingdom, and the United States.81 Such a veto would bar United Nations sanctions in a conflict.⁸² The result would be a war outside the jurisdiction of the United Nations, regulated solely by the laws of war. In the same way, the position resulting from the application of the veto could also arise from a deadlock in the Security Council where the voting on the question of applying sanctions was even through the abstention of one or more members of the Council. On November 3, 1950, the General Assembly passed a resolution providing for action by the Assembly when unanimity is lacking among the permanent members of the Security Council, but this resolution imposes no legal obligation on United Nations members.83

A third kind is mentioned in Article 51, which affirms the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations. There is no doubt that nonmembers have a similar right under general international law. The right of self-defense under Article 51 lasts until the Security Council has taken measures necessary to maintain international peace and security. Should no action be taken by the Security Council, for whatever reason, then once again we should have war unhindered by the United Nations.

An opinion has been expressed that, in addition to the right under Article 51, members still retain the broader right of self-defense under general international law. As for example, the right of defense against imminent attack, whereas Article 51 applies only in the event of armed attack. 84 If the Charter had intended to allow of so broad an interpretation it is difficult to understand why the words if an armed attack occurs against a Member of the United Nations were inserted.

The Charter makes specific provision in Articles 34 and 35 for a situation where there is danger of imminent attack, not actually launched. "The Security Council may investigate any dispute, or any situation which might