Limitation on warfare

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The limitation of war has been a key concern of all the nation states policies for many years, and a sizable literature has grown up dealing primarily with the dilemma of how to achieve a national objective in the face of an armed challenge without allowing the conflict to escalate into general nuclear war. The result has been a more or less generally accepted set of types of limitations designed to facilitate control of war.

The First Hague Conference was held in 1899 and the Second Hague Conference, in 1907. Along with the Geneva Conventions, the Hague Conventions were among the first formal statements of the laws of war and war crimes in the body of secular International law. A third conference was planned for 1914 and later rescheduled for 1915, but never took place due to the start of World War I. The German international law scholar called the assemblies the “international union of Hague conferences” and saw them as a nucleus of an international federation that was to meet at regular intervals to administer justice and develop international law procedures for the peaceful settlement of disputes, asserting “that a definite political union of the states of the world has been created with the First and Second Conferences.” 

Method and means of warfare

International law draws a line of demarcation between the combatants and civilians, they also limit the method and means used to wage war and attack only legal target. The treaties which limit the above said are Hague convention of 1907, 1977 and additional protocol to the Geneva Convention and series of agreement on specific weapons. The ICRC was a great help to implement these laws. In simple words international humanitarian law prohibits the use of certain weapons, and the way the allowed weapons are used and unnecessary suffering to innocent civilians. The Ottawa convention of 1977 prohibits the use of anti personnel mines, 2003 protocol on explosive remnants of war (an addition to 1980 UN convention on certain conventional weapons) 2008 Dublin Treaty banning cluster bombs IHL limits the use of “acceptable” conventional weapons and banned unaccepted weapons .there are certain rules over misuse of flags of identification and treatment of mercenaries. It also regulates the other means and method of armed conflict in addition with certain rules to demilitarized areas and non defended areas.

In conflict combatants are intended to harm the other military combatant without causing any harm to civilians and unnecessary damage to their properties. Here lies the point of distinction and demands a clear definition of persons and object that should be legally targeted. Persons, who are not combatant, are civilians and should not be attacked and if they directly took part as an individual or in a group then they are legal target of attacks.

 As far as objects are concerned civilians are not targeted, only military objects are targeted and they are define through a two pronged test. The object to be attacked must by nature, location, purpose contribute effectively in military action. IHL includes a number of corollaries for the protection of civilians. In the conflict generally combatants are distinguish by their uniforms, while they are engaged in a military operation preparatory to an attack or attack. It prohibits indiscriminate attacks and provides the principle of proportionality.

Finally in the conflict some more objects needs protection like cultural objects, temples (all the place of worship) historical monuments and objects which are meant for the survivorship of civilians. Means and methods of warfare with the potential to cause widespread, long-term and severe damage to the environment are prohibited as they threaten the health and survival of the civilian population.

International humanitarian law or the law of armed conflict is the law which regulates the conduct of arms conflict. It comprises of two conventions i.e. Geneva and Hague, which also includes various subsequent treaties and relevant customary laws and cases. It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare in relation to each other and to protected persons[1], usually meaning civilians.

Serious violations of international humanitarian law are called war crimes. International humanitarian law, jus in bellum[2] regulates the conduct of forces when engaged in war or armed conflict. It is distinct from jus ad bellum[3] which regulates the conduct of engaging in war or armed conflict and includes crimes against peace and of war of aggression. Together the jus in bellum and jus ad bellum comprise the two strands laws of war governing all aspects of international armed conflicts. The treaties bound the nation moreover there are many customary unwritten rules of war which could be explored at trials of Nuremberg war.

International humanitarian law operates on the basis of division between international armed conflict and those relevant armed conflict which are not of an international nature. Thus this split is highly criticised.

Two historical streams: The Law of Geneva and The Law of The Hague

 Modern international humanitarian law comprise of two streams which are as follows:

1. Law of Hague: Which is also known as law of war which came into existence from number of international treaties and conventions relating to war, particularly Hague convention of 1899 and 1907 and Geneva convention of 1863 both draws a conclusion these are the branches of jus in bellum i.e. international law regarding acceptable practices while engaged in armed conflict and war. It determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm. In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives, the main aim is to overcome the enemy state and it could be achieve by disabling the enemy combatants Thus, the distinction between combatants and civilians, the requirement that wounded and captured enemy combatants must be treated humanely, and that quarter must be given, some of the pillars of modern humanitarian law, all follow from this principle

2. Geneva or Humanitarian law: The massacre of civilians in the midst of armed conflict has a long and dark history.  There are few live examples like massacres of Kalingas’ by Asoka in India, some 100020 Hindus by Muslim troops of Timur, or crusader massacre of Jews. The essential points seem to be these that in battle and towns taken by force, combatants and non-combatants were killed and property was destroyed or looted.

Codification of Humanitarian norms

 The law of Geneva is directly inspired by principle of humanity which relate to those who were not the part of war by providing the legal basis for protection and humanitarian carried out by non partial humanitarian i.e. ICRC. The main focus was found in Geneva Convention which was amended later by adding certain provisions of warfare and addressing civil war.

Basic rules of IHL

• Persons hors de combat[4] and those not taking part in hostilities shall be protected and treated humanely.
• It is forbidden to kill or injure an enemy who surrenders or who is hors de combat
• .The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the “Red Cross,” or of the “Red Crescent,” shall be required to be respected as the sign of protection.
• .Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
• No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
• Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare.
• Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives

Example-Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a Red cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that, being considered the flag of truce, indicates an intention to surrender or a desire to communicate. In either of case, the persons protected by the Red Cross or the white flag are expected to maintain neutrality, and they may not engage in warlike acts themselves; in fact, engaging in war activities under a white flag or a red cross is itself a violation of the laws of war. The ICRC is the only institution explicitly named under international humanitarian law as a controlling authority. The legal mandate of the ICRC stems from the four Geneva Conventions of 1949, as well as its own Statutes.

Violations and punishment

During war punishment should be specific deliberate and limited. Combatants who encroach certain laws of war may lose the protection but should be treated as human and gifted with the title of prisoners of war but only after facing the competent tribunal of war, in case of trial they shall not be deprived of the rights of fair and regular trial.

Spies and terrorist are only protected with laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. Countries that have signed the UN Convention against Torture[5] have committed themselves not to use torture on anyone for any reason.

After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of Law.

International organisations

Council of Europe Parliamentary Assembly

In a recommendation adopted in 1979, the Council of Europe Parliamentary Assembly expressed its keen disappointment at the fact that none of its member states has ratified and that it has been signed only by France and recommended that the Committee of Ministers, should  invite member governments to sign and ratify the European Convention on the non-applicability of statutory limitation to crimes against humanity and war crimes of 1974, invite member governments to take whatever steps may be necessary to ensure that neither the application of statutory limitation nor the implementation of any other legal measures should enable crimes against humanity and other very serious crimes to escape punishment.

Resolution adopted in 1984 the council of Europe parliamentary assembly called upon the members of the states to support the declaration adopted by UN to set forth the principles of “enforced disappearance is a crime against humanity which … is not subject to limitation“.

Resolution adopted in 1993 recommend to invite member states which have not yet sign and ratify the 1974 convention on non applicability of statutory limitation to crime against   humanity.

In the year 1979 presentation made by the assembly on the statutory limitations of war crimes against humanity prepared by legal committee were able to draw conclusion for the above said that there is no statutory limitation applying to war crimes including World War II crimes against humanity in Austria, Denmark, France, Ireland, Italy, Liechtenstein, the Netherlands and the United Kingdom. In the Federal Republic of Germany the statutory limitation period for Second World War crimes will expire on 31 December 1979, but there will be no statutory limitation for future crimes. In Luxembourg, the situation is reverse. There is statutory limitation in Belgium, Greece, Malta, Norway, Portugal, Spain, Sweden, Switzerland and Turkey. But in Switzerland there is a proposal for the abolition of this limitation.

War Crimes

War crimes are the serious violation of laws applicable in armed conflict which give rise to criminal responsibility such as murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labour camps, the murder or ill-treatment of prisoners of war, the killing of prisoners, the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity. Similar concepts, such as perfidy, have existed for many centuries as customs between civilized countries, but these customs were first codified as international law in the Hague Conventions of 1899 and 1907. The modern concept of a war crime was further developed under the auspices of the Nuremberg Trials based on the definition in the London Charter that was published on August 8, 1945

Article 22 of The Hague IV (“Laws of War: Laws and Customs of War on Land (Hague IV); October 18, 1907”) states that “The right of belligerents to adopt means of injuring the enemy is not unlimited and over the last century many other treaties have introduced positive laws that place constraints on belligerents (see International treaties on the laws of war). Some of the provisions, such as those in The Hague, the Geneva, and Genocide Conventions, are considered to be part of customary international law, and are binding on all. Others are only binding on individuals if the belligerent power to which they belong is a party to the treaty which introduced the constraint.

Prisoner of War

A prisoner of war is a person whether civilian or combatant is held in a custody during or after in the armed conflict. Capture states hold them for legitimate or illegitimate reasons as they exploit them for their labour, to recruit or even conscript them as their own combatants, to collect military and political intelligence from them, and to indoctrinate them in new political or religious beliefs. 

Hague and Geneva Conventions

 Chapter II of the Annex to the 1907 Hague Convention covered the treatment of prisoners of war in detail. These were further expanded in the Third Geneva Convention of 1929, and its revision of 1949.

Article 4 of the Third Geneva Convention protects captured military personnel, some guerrilla fighters and certain civilians. It applies from the moment a prisoner is captured until he or she is released or repatriated. One of the main provisions of the convention makes it illegal to torture prisoners and states that a prisoner can only be required to give their name, date of birth, rank and service number (if applicable).

However, nations vary in their dedication to following these laws, and historically the treatment of POWs has varied greatly. During the 20th century, Imperial Japan and Nazi Germany (towards Russian POW) were notorious for atrocities against prisoners during World War II. The German military used the Soviet Union’s refusal to sign the Geneva Convention as a reason for not providing the necessities of life to Russian POWs; and the Soviets similarly killed Axis prisoners or used them as slave labour. North Korean and North and SouthVietnamese forces routinely killed or mistreated prisoners taken during those conflicts.

Qualifications

For the status of prisoner of war, captured service members must be lawful combatants entitled to combatant’s privilege. To qualify under the Third Geneva Convention, a combatant must have conducted military operations according to the laws and customs of war, be part of a chain of command, wear a “fixed distinctive marking, visible from a distance” and bear arms openly.

Thus, uniforms and/or badges are important in determining prisoner-of-war status; and francs-tireurs[6], terrorists, saboteurs[7], mercenaries[8] and spies do not qualify. In practice, these criteria are rarely interpreted strictly. Guerrillas, for example, usually do not wear a uniform or carry arms openly, but captured guerrillas are often granted POW status.

The criteria are applied primarily to international armed conflicts; in civil wars, insurgents are often treated as traitors or criminals by government forces, and are sometimes executed. However, in the American Civil War, both sides treated captured troops as POWs, presumably out of reciprocity, although the Union regarded Confederate personnel as separatist rebels.

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity

On the 26th of November, 1968, the  Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity was adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 2391 (XXIII). Pursuant to the provisions of its Article VIII (90 days following the deposit of the tenth ratification), it came into force on 11 November 1970.

In the Preamble of the convention, the state parties recalled the resolutions of the General Assembly of the United Nations 3 (I) of 13 February 1946 and 170 (II) of 31 October 1947 on the extradition and punishment of war criminals, resolution 95 (I) of 11 December 1946 affirming the principles of international law recognized by the Charter of the International Military Tribunal, Nurnberg, and the judgement of the Tribunal, and resolutions 2184(XXI) of 12 December 1966 and 2202(XXI) of 16 December 1966 which expressly condemned as crimes against humanity the violation of the economic and political rights of the indigenous population on the one hand and the policies of apartheid on the other, resolutions of the Economic and Social Council of the United Nations 1074 D (XXXIX) of 28 July 1965 and 1158 (XLI) of 5 August 1966 on the punishment of war criminals and of persons who have committed crimes against humanity and noted, that none of the above mentioned  solemn declarations and conventions  provided for a period of limitation for war crimes or convinced effective punishments for the same. The state parties also noted that these declarations and conventions did not even provide for the protection of human rights and fundamental freedoms or restored the international peace and security. The state parties therefore recognized a need for an effective implementation of international law on war crimes and a limitation period for crimes against humanity thus agreeing upon the articles of the convention on Non applicability of statutory limitations to war crimes and crimes against humanity.

The Article 1(b) of the convention lays down that,” No statutory limitation shall apply to the following crimes, irrespective of the date of their commission, Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid,[9] and the crime of genocide[10]as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.” Likewise ,the article 3 of this convention lays down that ,”The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention”. There are total 11 articles to this convention on the non applicability of statutory limitations to war crimes and crimes against humanity.

The 1972 Biological and Toxin Weapons Convention (BWC)

The Biological and Toxin Weapons Convention or BWC, or The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction prohibits the development, production, stockpiling and acquisition of these weapons, and supplements the prohibition on use of biological weapons contained in the 1925 Geneva Protocol. It was opened for signature on 10th April 1972 and came into force on 26th March 1975. As of June 2000, it had 144 states parties (not counting Taiwan), including the five permanent members of the United Nations Security Council, plus a further 18 signatory states. The United Kingdom, the United States and the Russian Federation are the depositaries of the Convention.

Article I of the BWC reads as follows: “Each state party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes [emphasis added]; (2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.” Those emphasized words set out the general purpose criterion that the treaty uses to define its scope: the device whereby peaceful applications of pathogens[11], are not obstructed by the BWC.

Article II is the disarmament provision of the BWC, requiring the destruction of banned items, or their conversion to peaceful purposes, within 9 months of entry into force. Article III is the non-transfer provision whereby, implicitly, states parties undertake to establish export controls on items that might not otherwise satisfy the general purpose criterion. . In Article VII states parties undertake to provide assistance to any state party endangered by treaty violation. Article VIII in effect reaffirms the Geneva Protocol. States parties reviewed the operation of the BWC in 1980, 1986, 1991 and in 1996. During these Review Conferences, states parties reaffirmed that the scope of the Convention extended to new scientific and technological developments, and they also instituted voluntary confidence-building data-exchanges in order to enhance transparency and strengthen the BWC. Nevertheless, the BWC still has important limitations, notably a lack of provision for an international mechanism for monitoring compliance.

Other Instruments

ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)

Article 7 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Non-applicability of statutory limitations”, provides: “No statutory limitation shall apply to crimes against the peace and security of mankind.” 

Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Violations of International Human Rights and Humanitarian Law (2000)

Article 6 of the 2000 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law provides: “Statutes of limitations shall not apply for prosecuting violations of international human rights and humanitarian law norms that constitute crimes under international law.” 

Article 7 of the 2000 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law provides:
Statutes of limitations for prosecuting other violations or pursuing civil claims should not unduly restrict the ability of a victim to pursue a claim against the perpetrator, and should not apply with respect to periods during which no effective remedies exist for violations of human rights and international humanitarian law norms. 

International case laws on Limitation on warfare and war crimes

Argentina:

In the Priebke case in 1995 dealing with the question of the possible extradition of the accused to Italy for acts committed during the Second World War (Ardeatine caves massacre), Argentina’s Court of Appeal found that, under the terms of Argentine legislation, the charge of homicide was prescribed and therefore the extradition request should be rejected.  
The Supreme Court revoked the decision of the Court of Appeal and allowed the extradition, stating that the fact that Priebke was required for trial in Italy established prima facie[12] the crime of genocide “for killing 75 Jews out of 335 dead”. It added that “the classification of offences as crimes against humanity does not depend on whether the requesting or requested States agree with the extradition process, but instead on the principles of jus cogens[13] of international law” and that “there is no prescription for crimes under this law”.  
One of the Court magistrates referred to the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity and concluded that the Argentine Republic’s practice undeniably contributed to the development of an international custom that favoured the non-applicability of statutory limitations, and that express acceptance of such non-applicability through adherence to or ratification of the Convention was not the only means of determining the existence of  jus cogens. In his opinion, Argentina’s Executive and Legislative Branches had already expressed their agreement with the contents of the text, which had already been approved by both the Argentine Senate, and House of Deputies.

Other magistrates also found that Priebke’s conduct had all the characteristics of crimes against humanity committed against civilians and prisoners of war in wartime, and that this classification was in line with the principles of jus co gens, and that such crimes were not subject to limitations.  

However, other judges casting dissenting votes found that, since the crimes were homicides in terms of Article 62 of the Argentine Penal Code, the time limit after which prescription would apply had already elapsed. They found that even if the acts were to be considered crimes against humanity.

Conclusion

Edward Thompson asserted, in his famous essay ‘Notes on extremists: the last stage of civilisation’, that there is no dialectic in the arms race. The dialectic of war is therefore seen, at its simplest, as leading to an opposition between war and society. War grows out of society; feeds upon the enormous growth of productive resources brought about by industrial capitalism, and will ultimately destroy not only that particular system but every form of human society. Given all that we know of the murderous, genocides and ultimately exterminates dangers of modern warfare, it is right to ask of anyone who proposes the use of military force whether this can possibly be legitimate. We need to ask – whether it is a case of the Falklands Task Force or a PLO attack on Israel, or whatever – not only whether the political goals are legitimate in themselves, but whether there is any other means of furthering them, and whether the means proposed will really achieve what is intended without causing new problems which will outweigh any positive results. We need to ask all states, and non-state organisations, which maintain military forces and use them whether their policies and actions are contributing to the overriding goal of eliminating the danger of extremist war. This approach gives us, we hope, a standpoint for action which is relevant to the character of our age and the overriding danger which war now poses to human society.

“Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars… Hate cannot drive out hate: only love can do that.” –Martin Luther King Jr.

1.  Protected person is a minor or incapacitated person for whom a court has appointed a conservator
2.  Jus in bellum: standards by which a country can conduct war and the actions during the war should be just and fair
3. Jus ad bellum : The unlimited right to start, initiate, and wage war, and use force against another state
4. Hors de combat: outside of combat
5. United Conventions against Torture: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations Convention against Torture), 1984, Article 1-16.
6. Francs-tireurs: literally “free shooters” – was used to describe irregular military formations deployed by France during the early stages of the Franco-Prussian War (1870–1871). It is sometimes used to refer more generally to guerrilla fighters who operate outside the laws of war
7. Saboteurs: someone who commits sabotage or deliberately causes wrecks
8. Mercenaries: A professional soldier hired to serve in a foreign army
9. Apartheid: (in South Africa) A policy or system of segregation or discrimination on grounds of race
10. Genocide: The deliberate killing of a large group of people, esp. those of a particular ethnic group oration
11. For example in vaccine production
12. Prima facie:  Based on the first impression; accepted as correct until proved otherwise
13. Jus Co gens: “Latin meaning “compelling law.” This “higher law” may not be violated by any country. For example, genocide or slave trade may be considered to go against jus co gens.

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Source by Akanksha Sharma

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