The Contemporary Law of Armed Conflict (Melland Schill Studies in International Law)

414 Pages·2000·22.61 MB·English

by  L. C. Green

For Lilian
whose patience and encouragement have been beyond measure
'Elephant riders must fight with elephant riders,
as one on foot fights a foot soldier'
(Ramayana, Sanskrit epic, c. 3rd C. B.C.)
Attached to force are certain self-imposed imperceptible limitations hardly worth
mentioning, known as international law and custom but they scarcely weaken it
... Kind-hearted people might... think there was some ingenious way to disarm
or defeat an enemy without too much bloodshed, and might imagine that is the
true goal of the art of war. Pleasant as it sounds, it is a fallacy that must be
exposed: war is such a dangerous business that the mistakes which come from
kindness are the very worst.
Clausewitz, On War, 1832
Decisions were impacted by legal considerations at every level. [During the Gulf
War] the law of war proved invaluable in the decision-making process.
General Colin Powell, US Army
Chairman, Joint Chiefs of Staff
The contemporary law
of armed conflict
Melland Schill Studies in International Law
Series editor Professor Dominic McGoldrick
The Melland Schill name has a long-established reputation for high standards of
scholarship. Each volume in the series addresses major public international law
issues and current developments. Many of the Melland Schill volumes have become
standard works of reference. Interdisciplinary and accessible, the contributions are vital
reading for students, scholars and practitioners of public international law,
international organisations, international relations, international politics,
international economics and international development.
The contemporary law
of armed conflict
second edition
L. C. Green
Juris Publishing
MANCHESTER
UNIVERSITY PRESS
Copyright © L. C. Green 1993, 2000
The right of L. C. Green to be identified as the author of this work has been asserted by him
in accordance with the Copyright, Designs and Patents Act 1988.
First edition published 1993 by Manchester University Press
Reprinted 1996, 2000
This edition published by
Manchester University Press
Oxford Road, Manchester M13 9NR, UK
www.manchesteruniversitypress.co.uk
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
ISBN 0 7190 5600 4 hardback
0 7190 5601 2 paperback
First published in the USA and Canada by Juris Publishing, Inc.
Executive Park, One Odell Plaza, Yonkers, NY 10701
Library of Congress Cataloging-in-Publication Data applied for
ISBN 1-929446-03-9 hardback
This edition first published 2000
12 11 10 09 08 07 06 05 04 14 13 12 11 10 9 8 7 6 5
Typeset in Times
by Northern Phototypesetting Co. Ltd, Bolton
Printed in Great Britain
by Biddies, www.biddles.co.uk
Contents
Foreword Gillian M. White page xiv
Preface and acknowledgements XV
Preface to the second edition xvi
Series editor's preface xvii
Abbreviations xviii
The legality of war and the law of armed conflict
War defined 1
Criminalising war: Napoleon 3
Criminalising war: the Treaty of Versailles 4
Criminalising war: the League of Nations 5
The Pact of Paris 7
The United Nations Charter 8
The London/Nuremberg Charter 10
The Nuremberg Judgment 11
The United Nations and the concept of aggression 13
The law of war 15
The law in nascendi 16
Humanitarian law 17
The history and sources of the law of armed conflict
The position in antiquity 20
The Middle Ages and chivalry 23
Precursors of Geneva 25
War: a public activity 28
The first modern codes 29
Inter-state concern begins 30
Precursors of Hague Law 31
The Hague Law 33
The Declaration of London 36
vii
Contents
War in the air 37
Gas as a weapon 39
World War II 40
The Nuremberg Judgment and Principles 41
The Genocide Convention 42
The Geneva Conventions, 1949 43
Common Article 3 44
Grave breaches and war crimes 45
Humanitarian law and civilian protection 46
Geneva updated 50
Generality of the law 52
3 International and non-international armed conflict
Classic position 54
The impact of Protocol I, 1977 55
The significance of customary law 57
Non-international conflicts 59
Protocol II, 1977 61
Aggression 62
Self-determination and national liberation 63
Defining a non-international conflict 65
Intervention and non-international conflicts 67
Educating the fighter in the field 69
4 Hostilities: their commencement, effects and termination
The problem of the status mixtus 70
Are declarations of war necessary? 72
The effect of the United Nations Charter 73
Effects of the outbreak of hostilities 75
Nationals in enemy territory 77
The position of merchant vessels and aircraft 79
Operation of the laws of armed conflict 80
Termination of the conflict 82
Significance of an armistice 84
5 Inter-belligerent relations
Enemies and adverse parties 87
Belligerents and enemy nationals 88
Relations between belligerent forces 90
Parlementaires 91
Capitulation and surrender 94
Passports and safe-conducts 96
Safeguards 97
Cartels 97
Safety zones 98
viii