& 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)
A Note To The Reader: This interactive text contains hyperlinks
both to complete copies of important document found at other sites and to
abridged versions of the same document on this site. Those abridged versions are
noted after the first link as "abridged." They have been provided for
the convenience of the reader interested in substantive versions of treaties but
absent information regarding such matters as structure of secretariats and
provisions for entry into effect. The text is color coded as follows:
A Note To The Law Of War
Student: Particularly relevant sections of underlying case readings are yellow
highlighted. The student is, however, expected to at least be familiar
with the entire reading. Where the case title is highlighted, as in Yamashita,
the student is expected to read carefully the entire case.
A Note to German Students:
To facilitate your understanding I have included German language texts of
treaties where available. The hyperlink will be identified by the words "German
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). Even in ancient Greece there was recognition that laws
of armed conflict were an issue, even if there was a failure to abide by
existing laws of war. There is a certain brutal realpolitik which was
articulated by some governments when Durant wrote in 1939, and and which still
resonates in some of the discussions we will see below regarding treatment of
and dealing with "illegal enemy combatants>":
the Lacedaemonian Phoebidas, despite a treaty of peace, treacherously
seizes upon the citadel of Thebes, and the Spartan king Agesilaus is
questioned about the justice of this action, he replies: "Inquire only if
it is useful; for whenever an action is useful to our country is right."
Time and again truces are violated, solemn promises are broken, envoys are
slain. Perhaps, however, the Greeks differ from ourselves not in conduct
but in candor; our greater delicacy makes it offensive to us to preach
what we practice.
Custom and religion among the Greeks exercised a very modest restraint
upon the victor in war. It is a regular matter, even in civil wars, to
sack the conquered city, to finish off the wounded, to slaughter or
enslave all on unransomed prisoners and all captured noncombatants, to
burn down the houses, the fruit trees, and the crops, to exterminate the
livestock, and to destroy the seed for future sowings. At the opening of
the Peloponnesian War the Spartans torture as enemies all Greeks whom they
find on the sea, whether allies of Athens or neutrals; at the battle of
Aegospotami, and my which closes the war, the Spartans put to death three
thousand Athenian prisoners -- almost the selected best of Athens’
Will Durant, The Life of Greece, The Story of Civilization II,
Simon and Schuster (New York, 1939) at pp. 295-296.
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
|2.1.1 Does the "just war"
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
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
Preamble to Hague Hague Convention IV (1907)
|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).
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
Clive Parry, The Sources Of Evidence In International Law (Manchester Univ.
Press, 1965) at 8.
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
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
220.127.116.11 Consider the analogy between the Anglo/American common law
doctrine and the "common laws of war" in the
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?
18.104.22.168 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
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 cannot 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
| 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
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 .
| 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.
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)
|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
To Consider About International Custom As A Source
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
22.214.171.124 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?
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?
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?
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:
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
Manley O. Hudson, The Permanent Court Of International Justice,
1920-1942, cited in Whiteman, Digest Of International Law Vol. I at 92
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
Lauterpacht says that development of the
law of war has been determined by three general principles:
|A 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);|
|Based 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|
|Chivalry which demands a certain amount of fairness in
offense and defense, and a certain mutual respect between the opposing
British Manual of Military Law, Part III, §3,
Two other general principles are 1) the doctrine of
"proportionality" which prohibits the use of force disproportional to
the objective sought, and 2) "distinction" which prohibits targeting civilians
(although collateral damage to civilians as a result of attacks on a legitimate,
proportional and necessary military target are legal although regrettable), and
which requires combattants to distinguish themselves from non-combattant
Those five 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?
“... chivalry is a dangerous word. It can be used to
describe the concept of the soldier as an individual whose vocation in a
Christian society was to defend in arms the cause of faith and justice.
The standards such a vocation would set are obviously high ones, and if
observed, would fully entitle the soldier’s calling to the very high
respect which it certainly enjoyed in the Middle Ages. To be a soldier
then was to be noble, for "arms ennoble a man, whoever he may be". But as
often chivalry is the word used to describe not the ideals but the social
rituals of the military nobility, their passion for blazonry, tournaments,
and courtly romance.... It would be a reasonable enough,... to conclude
that chivalrous ideals had little to do with the conduct of campaigns...
unless, that is, some such law as the law of arms prescribed a formal
minimum of humane and rational behavior.... There are certain indications
that there may have been just such a formal minimum. In the Hundred Years
War soldiers, and not always soldiers of the highest character, frequently
made contracts with aliens or enemies which they swore to observe on the
faith of the knighthood. A very large number of these contracts involved
financial obligations, to fight at given wages, or to pay ransom, or to
surrender for its inconsideration for named sums. Even a hardened
materialist need not question the significance of chivalrous oaths, when
inducements of this nature were involved. Their currency reminds us of
another factor too. Soldiering in this period had assumed many of the
characteristics of a large scale commercial venture.
M. H. Keen, The Laws of War in the Late Middle Ages,
, at 3. Routledge & Kegan Paul (London, 1965).
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:
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
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 First World War standard with a comment from a
British fighter pilot in the Second World War:
|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
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
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
|126.96.36.199 Posit a general principle of international law, not now
recognized, but which might reasonably be derived from the law of a recognized
|188.8.131.52 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
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
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
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 the Second World War 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
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 forbidden in 1949 by Article 34 of the Geneva Civilians Convention ("The
taking of hostages is prohibited"). Why do you think recognized laws of war
changed in such a short time? If the Civilians Convention had not been ratified
would the law have remained static?