Chapter Two 

General Principles & Sources Of The Law

 

No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. To the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could have been.

Hannah Arendt, Eichman In Jerusalem: A Report On The Banality Of Evil (1963)

 

2.1 The Role Of History In Establishing General Principles

  The study of law is largely the study of history. The law of war is no different. Its history is one of repeated efforts to impose legal constraints on armed conflict by negotiations among military powers. Often those efforts failed to produce a treaty; the treaties that were produced were often less than fully effective. Over time, however,  they have produced, along with other sources, a body of law recognized as binding and effective by most of the major military powers.

    Much of the reading on this web site will involve, either directly or by citation, historical examples and analogies. For an in depth review of the historical bases for the law of war the interested reader should find Howard, Andreopolous & Shulman, The Laws Of War, Yale Univ. Press (1997).

   In the Prize Cases the United States Supreme Court cites Vatel for the proposition that there are "common laws of war" which are "maxims of humanity, moderation and honor [which] ought to be observed by both parties in every civil war..."  It is those "common laws" developed through practice, along with the concerted efforts of students, practitioners, and commentators on the law of war, which have developed into the source of our study here.

    In The Paquete Habana, the Supreme Court set out the underlying principles:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.


44 L.Ed 320 (1900).

Questions To Consider About The Role Of History

 

2.1.1 Does the "just war" See W. Hays Parks, Air War And The Law Of War, 32 Air Force Law Review 1,4 (1990) ) concept have any utility for analysis of the legality of armed conflict under the standards enunciated in the United Nations Charter?
2.1.2 Review Chapters 1-3 in The Laws Of War. Has the movement towards humanitarian limitations on means and methods of combat effectively prevented any death or suffering by either combatants or noncombatants, or has it merely shifted the means of inflicting those ills?

 

2.2 The Sources Of The Law Of War (Statute Of The ICJ)

    The law of war may be found in the same manner as other international law. Article 38 of the statute of the International Court of Justice lists five sources in descending order of value, see  Sir Hersch Lauterpacht, The Development of International Law by the International Court 26 (1958). They are international conventions (treaties), international custom as evidence of a general practice accepted as law, general principles of law recognized by civilized nations; judicial decisions; and the teachings of the most highly qualified publicists.  The reader interested in specific legal research may be aided by the following useful article: Linda Karr O'Connor, International And Foreign Legal Research: Tips, Tricks And Sources, 28 Cornell Int'l L. J. 417 (1995).

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.


Preamble to Hague Hague Convention IV (1907) (emphasis added).

We look to a number of sources to ascertain principles of international law, including international conventions, international customs, treatises, and judicial decisions rendered in this and other countries. See Malcolm N. Shaw, International Law 59 (1991) (citing article 38(1) of the Statute of the International Court of Justice); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir.1992) ("[I]n ascertaining and administering customary international law, courts should resort to 'the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators.' ") (quoting The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900)).

 

 Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1295  (11th Cir. 1999).

...the international community is a very peculiar one from the legal point of view. It lacks...comprehensive judicial institutions, It lacks developed legislative institutions, if indeed it has any at all. The system of law which applies within it is patronizingly described, in consequence of this or its retention of the institution of self-help as a primitive system. But it is not to be assumed...that this verdict is correct...It is essentially a society of States, and therefore of collectivities rather than of individuals. All or very nearly all of these collectivities already have legislatures, from which it must follow, at least, that the competence of an international legislature must in any event be restricted to that of something very like a confederation unless the autonomy of the national legislatures is very considerably trenched upon.


Clive Parry, The Sources Of Evidence In International Law, (Manchester Univ. Press, 1965) at 8.

 2.2.1 Treaties

        Since the 19th century the international community has increasingly valued treaty obligations as the most binding statement of international law. As early as 1902, Professor Pollock could note:

      There is no doubt that, when all or most of the Great Powers have deliberately agreed to certain rules of general application, the rules approved by them have very great weight in practice even among states which have never consented to them.

Pollock, Sources of International Law, 18 L. Q. Rev. 1418 (1902) cited in Whiteman, 1 Digest of International Law 70 (1963).

        That binding quality of treaties has increased substantially since the Second World War, based in part on the example the Nuremberg Tribunal made of German government officials who routinely violated treaty obligations, and in part on the simple principle that to the extent treaties clarified signatories' duties, they made enforcement more likely than customary obligations. That extension was accelerated by general entry into force of the Vienna Convention on the Law of Treaties (German language version) in 1980. The increasing tendency to accord premiere status to treaties was nicely explained in a recent article:

        Traditionally, the formation of customary international law focused on tacit consent, manifested in state practice, and its relationship to the construction of customary international law. Expressions of state practice consistent with a developing norm represented clear indications of consent, when accompanied by the requisite opinio juris. The traditional view of customary international law considers participation in treaties as but one form of state practice, existing on equal footing with other forms. The more modern approach to the development of customary international law suggests a more principal role for such international instruments. In modern practice, ratification of treaties constitutes a higher form of state practice, and thus more forcefully suggests the establishment of customary international law.  Indeed, in certain contexts, treaties may directly declare customary international law or may serve to constitute its formation. It should be noted, however, that scholars continue to debate the circumstances under which it is appropriate to glean a rule of customary international law from treaty provisions. 


Joni S. Charme, The Interim Obligation Of Article 18, George Washington Journal of International Law and Economics (1992) (citations omitted).

The United States recognizes the Vienna Convention as a codification of customary international law. The United States Department of State considers the Vienna Convention "in dealing with day-to-day treaty problems" and recognizes the Vienna Convention as in large part "the authoritative guide to current treaty law and practice." Frankowska, supra, at 298 (quoting Assistant Legal Advisor for Treaty Affairs at the Department of State and Secretary of State Roger's Report to the President, Oct. 18, 1971, 65 Dep't St. Bull. 684, 685 (1971)). In addition, the Department of State has stated that where it has not recognized the Vienna Convention as codifying customary international law, it has adopted it as customary law going forward. See id. at 300.

United States courts have also cited the Vienna Convention as an authoritative codification of customary international law.

 

Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 308 (2nd Cir. 2000).

Questions To Consider About Treaties As A Source Of Law

 

2.2.1.1 Consider the analogy between the Anglo/American common law doctrine and the "common laws of war" in the Prize Cases. Compare it with that between civil law and the present status of treaty law. Has the underlying rationale for international law moved more towards one system or the other, or does it lie, as an hybrid, somewhere in between?
2.2.1.2 If treaties are a primary source for the laws regulating weapons and their use, when does the treaty move from a statement of the law to independent existence, such that it becomes irrevocable? Could, for example the ABM Treaty have ever obtained such binding effect that a party could not withdraw from its terms, even if the Treaty itself provided for denunciation? What effect would such a doctrine have on the willingness of nations to sign and ratify treaties? Is there any treaty that can not be denounced?

 

2.2.2 International Custom

    Custom is an important source of international law but proving its existence may be problematical.  In determining whether a valid and binding custom exists the parties must consider not only the amount of usage, but also its weight; that is, whether the custom asserted is practiced by nations with an interest in the matter, and just how much of an interest they really have?

 

     The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom 'as evidence of a general practice accepted as law'. In support of its contention concerning the existence of such a custom, the Colombian Government has referred to a large number of ... treaties .... It has cited conventions and agreements which do not contain any provision concerning the alleged rule ..... It has invoked conventions which have not been ratified by Peru, such as the Montevideo Conventions of 1933 and 1939. The Convention of 1933 has, in fact, been ratified by not more than eleven States and the Convention of 1939 by two States only.


     It is particularly the Montevideo Convention of 1933 which Counsel for the Colombian Government has also relied on in this connexion. It is contended that this Convention has merely codified principles which were already recognized by Latin-American custom, and that it is valid against Peru as a proof of customary law. The limited number of States which have ratified this Convention reveals the weakness of this argument, and furthermore, it is invalidated by the preamble which states that this Convention modifies the Havana Convention. Finally, the Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or-if in some cases it was in fact invoked-that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.

Asylum Case (Colombia / Peru) 1950 I.C.J. 266, 276 to 277.

    Consider the following two quotes from cases dealing with sources of international law and the evidence of its existence. One is from an English court at the beginning of the 20th century, the other from an international court at the century's end. What historical and legal developments contributed to the differing viewpoints expressed in these opinions?

There is an essential difference, as to certainty and definiteness, between municipal law and a system or body of rules in regard to international conduct, which, so far as it exists at all (and its existence is assumed by the phrase "international law"), rests upon a consensus of civilized States, not expressed in any code or pact, nor possessing, in case of dispute, any authorized or authoritative interpreter; and capable, indeed, of proof, in the absence of some express international agreement, only by evidence of usage to be obtained from the action of nations in similar cases in the course of their history.


West Rand Central Gold Mining Company v The King, 2 K.B. 391 [1905].

    A large number of customary rules have been developed by the practice of States and are an integral part of the international law relevant to the question posed. The "laws and customs of war" - as they were traditionally called - were the subject of efforts at codification undertaken in The Hague (including the Conventions of 1899 and 1907), and were based partly upon the St. Petersburg Declaration of 1868 as well as the results of the Brussels Conference of 1874. This "Hague Law" and, more particularly, the Regulations Respecting the Laws and Customs of War on Land, fixed the rights and duties of belligerents in their conduct of operations and limited the choice of methods and means of injuring the enemy in an international armed conflict. One should add to this the "Geneva Law" (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims of war and aims to provide safeguards for disabled armed forces personnel and persons not taking part in the hostilities. These two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. 


The Nuclear Weapons Advisory Opinion, I.C.J. (1996) 35 I.L.M. 809, 827

    According to Brownlie, custom requires a "general recognition among States of a certain practice as obligatory," and its elements include international duration, uniformity and consistency of practice, generality of the practice, and a sense of legal obligation. Ian Brownlie, Principles Of Public International Law (4th Ed. 1990) at 4-7. That "sense of legal obligation," is reflected in Article 38's reference to "general practice accepted as law."

For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention. In considering the instances of the conduct above described, the Court has to emphasize that, as was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts concerned 'amount to a settled practice', but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.


Nicaragua v United States.

    Schwartzenberger limits customary law to two elements: a general practice of States and acceptance by the States of its obligatory nature. Georg Schwartzenberger, A Manual Of International Law, (6th Ed. 1976) at 26.

    Since the end of the Second World War, although treaties have gained primacy, customary law has continued as a source of international law, including the law of war. Indeed, the International Court of Justice, in the Corfu Channel Case (summary) (U.K. v. Albania) Judgment stated:

It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State,  provided that the passage is innocent...


1949 I.C.J. Reports 4 at 28.

Questions To Consider About International Custom As A Source

 

2.2.2.1 Can a treaty ever become international customary law if one or two great powers are the only non-signatories? If, for example, all nations except the United States ban the use of a particular weapon like land mines, can the U.S. military continue to deploy mines as a defensive weapon along the Korean Demilitarized Zone?  If those weapons become technically illegal does it make a difference if they are deployed only for defensive means? If they are not illegal because a single superpower is non-signatory does international practice have any meaning as a source of law? Consider the moral and political pressures in this example.
2.2.2.2 Suppose a great power "changes its mind?" Does that change eliminate international custom? If so, is there such a thing as predictability in international law? Are the Nuremberg convictions for crimes against peace and crimes against humanity still valid?
2.2.2.3 How does the theory of custom differ from the essential concept that the common law is derived from a sort of Jungian mass of ideas and practices?
2.2.2.4 Consider the history of the laws of war under Islamic law. See also, Chapter 3.1. Do the underlying principles differ, and if so, in what manner?

 

2.2.3 General Principles

    Hudson says the phrase "general principles of law recognized by civilized nations" in Article 38 of the ICJ Statute must be given a larger context then just the general principles which could be derived from treaties and custom. He believes the language:

...empowers the Court to go outside the field in which States have expressed their will to accept certain principles of law...and to draw upon principles common to various systems of municipal law or generally agreed upon among interpreters of municipal law.

Manley O. Hudson, The Permanent Court Of International Justice, 1920-1942, cited in I Whiteman, Digest Of International Law at 92 (1963).

    Hudson's analysis is generally accepted by commentators with certain caveats, See, e.g., Brownlie, supra, at 19. Nations, like many municipal legislators, are reluctant to allow jurists to wander too far in the fields of theoretical contemplation lest the results be unworkable or unacceptable to international society. Despite that limitation, however, it is clear that courts can derive at least certain principles to deal with previously uncontemplated international delicts. A number of the Nuremberg principles are good examples of the existence and legitimacy of that practice. 

   Lauterpacht says that development of the law of war has been determined by three general principles:

bulletA belligerent is justified in applying compulsion and force of any kind, to the extent necessary for the realization of the purpose of the war, with the least possible expenditure of casualties, resources and money (this is effectively the doctrine of "military necessity);
bulletBased on the principle of humanity kinds and degrees of violence which are not necessary for the purpose of war are not necessary to a belligerent (the doctrine of "unnecessary suffering"); and
bulletChivalry which demands a certain amount of fairness in offense and defense, and a certain mutual respect between the opposing forces.

   British Manual of Military Law, Part III, §3, page 2.

    Another general principle is the doctrine of "proportionality" which prohibits the use of force disproportional to the objective sought. 

    Those four general principles transcend treaty law and custom and are widely recognized as minimum standards which form a foundation for all rational systems for legal regulation of armed conflict.

    So, what is chivalry? 

    Examine this quote from a U.S. Naval officer captured by the Spanish in Cuba during the Spanish American War, as he discusses a visit to his cell by a Spanish Admiral:

The admiral left with the salutations and the courteous manner that would have marked a visit to a friendly admiral on his flagship. "Ah," I thought, "this admiral commanding the Spanish naval forces has taken the pains to put on the uniform for official visits, and has come at the very earliest moment to visit a young lieutenant of the enemy in prison. Surely chivalry is not yet dead.

Richmond Pearson Hobson, The Sinking Of The Merrimac, ,  at 148. The Century Company (New York, 1899).

    Here is an interesting discussion of chivalry by the "knights of the air" in World War One:

In the world of relentless hunters and driven men was there any place for the chivalry so often associated with aerial combat? Strangely enough there was, though there has been considerable dispute about the forms it took and the frequency with which it manifested itself. General Poro wrote that the aviators were rightly called "the knights of the skies," for among them knightly forms and gestures were far more common than in any of the other services; Silvio Scaronji, on the other hand, has written that chivalry rarely made an appearance in the air war...

What sometimes passed for chivalry was simply the aviators' way of observing the rules of war. Rather than passing names of the enemy airmen killed or taken prisoner to the International Red Cross for transmission to the other side, they simply dropped message, usually over an enemy airfield...In time this custom led to others; when an enemy aviator had been buried, photos of the funeral were sometimes dropped; on other occasions letters from captured airmen were transmitted this way...

The general respect held for airmen of the opposing side was reflected in the messages of condolence or even the funeral wreaths dropped when an enemy aviator of note had been killed.

Lee Kennett, The First Air War 1914-1918, at 171.The Free Press (New York, 1991).

    Compare that World War One standard with a comment from a British fighter pilot in World War Two:

One of the ME. 109s began circling him. 'I was alarmed. He was near enough for me to see his face. I felt...he would shoot me...But he behaved very well. The noise of his aircraft was teriffic. He flew round me...then he suddenly...waved to me.' And the chivalrous German fighter pilot then dived for home.

John was lucky. He was fair game for the that Luftwaffe pilot. Even [Air Marshal Sir Hugh] Dowding thought so. On 'the ethics of shooting at aircraft crews who have baled out,' it was his opinion that 'Germans descending over England were perspective prisoners and should be immune, while British pilots descending over England were still potential combatants. German pilots were perfectly entitled to fire on our descending airmen.'

Peter Townsend, Duel Of Eagles at 278. Castle Books (Edison N.J., 2003).

    Note this general comment at the beginning of discussion about a chivalrous German officer, Captain Karl Friedrich Max von Muller:

The First World shattered the illusions of European societies about the nature  of conflict in general, and of war with the Germans in particular.  In August 1914, the Kaiser's nation set about its purposes with a ruthlessness that shocked its foes. German atrocities towards civilians in Belgium and France were exaggerated by propaganda, yet were bloody enough in reality, involving the authorised murder of several hundred unarmed people. Later came Germany's introduction of poison gas, air bombardment of civilians, and a U-boat campaign against unarmed merchant shipping. Germans, in their turn, argued that the Allied naval blockade imposed greater suffering upon civilians than any policy initiated by Berlin. Compassion for the foe was among early casualties of the conflict, together with scruples about methods of destroying him. In a war of national survival, almost every old ideal about humanity in warfare was snuffed out. Though the Franco-Prussian and Boer wars had scarcely been notable for chivalry, the twentieth century set a new pattern for the behavior of combatants, from which surviving warriors of the old era recoiled,

Max Hastings, Warriors: Portraits From The Battlefield at 111. Vintage Books, 2007. Given Hastings' comments, was there any chivalry left to be incorporated in FM 27-10? What was it?

Questions To Consider About General Principles

 

2.2.3.1 Posit a general principle of international law, not now recognized, but which might reasonably be derived from the law of a recognized State.
2.2.3.2 Before the Nuremberg trial of major German war criminals was it reasonable for the members of the Nazi leadership to expect some form of retribution for their conduct? British Prime Minister Winston Churchill initially argued for summary execution. Why do you think he changed his mind and accepted the necessity of a trial fairly conducted under previously articulated procedural standards?

 

2.2.4 Judicial Decisions, Commentators and Treatises

       While the concept of stare decisis does not apply to international law (See Article 59 of the Statute of the ICJ, judicial opinions and teachings of highly qualified commentators are subsidiary means for determining the law under Article 38. Despite Article 59, however, there does appear an increasing tendency on the part of international courts to seek "precedential" guidance. See, e.g. the Tadic Opinion. In addition, a number of I.C.J. cases have had "decisive influence on general international law. Brownlie, supra at 20.

2.3 Central Role Of U.N. Charter, Geneva And Hague Conventions

   The reader interested in practical aspects of the law of war can still expect to find primary guidance in the norms enunciated by the Charter of the United Nations, and the various Hague and Geneva conventions. They largely represent codification of the fundamental principles above discussed, and those principles provide additional philosophical guidance. The law, though, is rapidly developing, and careful research of emerging norms is always necessary.

   In the event of any legal disparity, however, the United Nations Charter effectively represents international constitutional law. The nation or individual departing from those norms does so at peril. In the final analysis, if those rule of law factors discussed in the last chapter have any validity they must be predictable and hence, binding. Whether the community of nations has reached or will achieve that standard is an issue worthy of academic study, international legislative efforts and considerable expenditure of resources.

Questions To Consider About Central Treaties

 

2.3.1 Consider the implications of U.N. Charter primacy in relation to national constitutions. If a war crimes tribunal created by the Security Council indicted a member of the armed forces of the United States would that defendant lose constitutional rights otherwise unalienable? Can this conflict be resolved in some other fashion? See, Evan Wallach, Extradition To The Rwandan War Crimes Tribunal: Is Another Treaty Required? 3 U.C.L.A. Journal Of International Law And Foreign Affairs 59 (1998).

2.3.2 In the Hostages Case the taking and execution of civilian hostages by German military personnel in World War Two was, in itself, held legal. G. Brand, The War Crimes Trials And The Laws Of War, 26 British Yearbook of International law 414, 426 (1949). Similarly, the United States Army at least considered similar action in its draft plans for the occupation of Germany:

The taking of hostages is a further means of enforcing obedience to the terms of Surrender or compliance with the laws of War. It will in no case be resorted to without the prior authority of the Supreme Commander. The execution of hostages is not regarded with favour and will never be carried out in the absence of authority of the Supreme Commander.

See, Measures Which May Be Taken To Enforce The Terms Of Surrender Or In The Event Of No Surrender To Compel The Enemy To Comply With The Laws Of War, Top Secret Appendix F, 42 at paras 8(b) and (c), National Archives Of The United States, Records Of USGCC, Record Group 260, Stack 390, Row 40, Compartment 17, Shelf 3, Box 17, Folder 4.

   The taking and execution of civilian hostages was forbade in 1949 by Article 34 of the Geneva Civilians Convention ("The taking of hostages is prohibited"). Why do you thing recognized laws of war changed in such a short time? If the Civilians Convention had not been ratified would the law have remained static?

 

E-Mail Us