Legal Research

Laws of War

By Simon Fodden

It seems appropriate today, Remembrance Day, for a law blog to reflect for a moment on the laws of war. These seemingly prime examples of a contradiction in terms have taken a beating in recent years. The Economist, in an article entitled, “Unleashing the laws of war” published last year, gave a sad summary of fate in practice of these peculiar norms in an era of insurgencies, terrorism, ethnic violence, and superpower techno-war.

Yet much of the world continues to expand and refine the laws of war. I’m speaking now of the Hague and Geneva conventions, those legal limits to the conduct of war (jus in bello) — there are also legal justifications for engaging in war (jus ad bellum), something else again. The two Hague Conferences (1899 and 1907) and the various Geneva Conventions and Protocols (1864 to 2005) comprise something like 30 documents (most of which can be had via Yale’s Avalon Project in the Laws of War section). Even the official titles of some of these documents are enough to inspire a shudder of disgust:

• Hague IV – Prohibiting Launching of Projectiles and Explosives from Balloons : July 29, 1899 ?
• Declaration II – on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases; July 29, 1899 ?
• Declaration III – on the Use of Bullets Which Expand or Flatten Easily in the Human Body; July 29, 1899 ?
• 1928 – Geneva Protocol for the Prohibition of the Use in War of Asphyxiating Gas, and for Bacteriological Methods of Warfare; February 8

When today we hear about the applicability or a violation of “the Geneva Convention,” it’s the four conventions of 1949 and the six subsequent protocols and annexes that are meant. The International Committee of the Red Cross website has the text of these along with commentary on each. These relate, among other things, to:

• “the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field” and “at Sea” [1949],
• “the Treatment of Prisoners of War” [1949],
• “the Protection of Civilian Persons in Time of War” [1949],
• “the Protection of Victims of International Armed Conflicts” [1977], and
• “the Protection of Victims of Non-International Armed Conflicts” [2005].

One source of concern is the fact that although there are 194 state parties to the original 1949 convention, there are only 165 to the 1977 Protocol and 53 to the 2005 Protocol. Though the United States is a party to the 2005 Protocol, it is not a party to the more important 1977 Protocol, though it is a signatory (along with Iran, Pakistan, and Morocco). Canada is a party to both of these protocols.

It might be a fruitful exercise today if we all read the text of just one of these documents, not as lawyers, perhaps, seeking out ambiguities and arguments, but simply as citizens of the world, seeking ever more humane conduct, even during war.

Full post as published by Slaw.ca on November 11, 2010 (boomark / email).