PROTECTING FUNDAMENTAL HUMAN RIGHTS IN · PDF file1 PROTECTING FUNDAMENTAL HUMAN RIGHTS IN TIMES OF WAR – THE MEANS AND METHODS OF WARFARE Kevin Riordan * I Introduction The year

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PROTECTING FUNDAMENTAL HUMAN RIGHTS IN TIMES OF WAR – THE MEANS AND METHODS OF WARFARE

Kevin Riordan ∗

I Introduction

The year 2005 marks anniversaries of a number of important events in the history of the protection of human rights in times of war. It is, for example, 90 years since the term “crime against humanity” was first officially used. In that case the expression was used, largely for dramatic effect, in a protest to the Ottoman Empire about its treatment of the Armenian minority. 1 The expression was to be used again 30 years later in 1945, this time in a more legal sense, when the major allied powers signed the London Charter that established the International Military Tribunal at Nuremberg to try the “major war criminals” of the Third Reich. Ten years ago the expressions “crimes against humanity” and “war crimes” were again on our lips. This time in respect of the appalling massacre of Bosnian men and boys plucked from a United Nations safety zone at Srebrenica. 2

∗ The views expressed in this paper are the author’s and do not necessarily represent the views of the New Zealand Defence Force or the Government.

1 On 28 May 1915, the Governments of France, Great Britain and Russia issued a joint declaration denouncing the Ottoman Government’s massacre of the Armenians as constituting “crimes against humanity and civilization for which all the members of the Turkish Government would be held responsible together with its agents implicated in the massacres.”

2 See Prosecutorv Ratko Mladic Amended Indictment Case No. IT955/18I, which alleges that over 7,000 Bosnian Muslim prisoners captured in the area around Srebrenica were summarily executed from 1319 July 1995. Killings continued thereafter. From about 1 August 1995 through about 1 November

2 Human Rights Research

Even the swiftest scan of history shows us that throughout the world there has always been some form of armed conflict going on somewhere. Sometimes the conflict is between States, and sometimes people within a State are fighting each other. History also shows us that warfare has often been waged with great barbarity and cruelty causing immense suffering to warfighters and the helpless victims of war alike. Our current age is no different. Since the earliest times, however, humane people have set rules intended to minimise the suffering caused by war. This ongoing process has led to treaties being drawn up and agreed to by States in order to limit the means and methods of warfare and to protect all victims of armed conflict. Customary rules of international law have also developed over time and these rules regulate the conduct of warfare even when there is no treaty that applies.

This paper explores only one part of the Law of Armed Conflict and its effects in seeking to protect the fundamental human rights of persons affected by war, namely the rules governing the manner in which warfare is conducted (the “methods” of warfare) and the weapons used to prosecute it (the “means” of warfare). There are, of course, large overlaps between “pure” human rights law and LOAC. For example prohibitions against torture and inhumane treatment of persons in detention appear in both bodies of law. In recent times the distinction between the two areas has become less meaningful, particularly in respect of armed conflicts not of an international character. Indeed, LOAC is sometimes described as a type of “special law” (lex specialis) which arises to provide special protection of human rights when a state of armed conflict arises. 3

II Historical Background

That the conduct of war should be governed by certain laws is a concept of very ancient origin and is to be found in most civilisations. Provisions

1995, VRS units under the command and control of General Ratko Mladic participated in an organised and comprehensive effort to conceal the killings and executions of the Bosnian Muslims of Srebrenica by reburying, in isolated locations, bodies exhumed from mass graves.

3 International Court of Justice Advisory Opinion on the Legality of Use or Threat of Use of Nuclear Weapons [1996] ICJ Rep 95. The ICJ stated that in assessing a human right such as the right not to be arbitrarily deprived of life, the question must be determined by the applicable lex specialis, namely LOAC.

Protecting Fundamental Human Rights In Times Of War 3

relating to the conduct of warfare dealing with prohibited weapons and forbidden tactics are to be found in many places, including ancient Hindu and Buddhist texts.

Constraints on the use of force are to be found in Islamic Law too, and given the fact that there is, at present, much controversy surrounding Islamic fundamentalism in its extreme forms, I think it worthwhile to quote one of the most eloquent examples of a “soldier’s card” on the laws of war which is to be found in the address of Abu Bakr, the first Caliph, to the forces of the Syrian expedition on the morning of its departure, in which he said: 4

Stop, O people, that I may give you ten rules to keep by heart! Do not commit treachery, nor depart from the right path. You must not mutilate, neither kill a child or aged man or woman. Do not destroy a palmtree, nor burn it with fire and do not cut any fruitful tree. You must not slay any of the flock or the herds or the camels, save for your subsistence. You are likely to pass by people who have devoted their lives to monastic services; leave them to that to which they have devoted their lives. You are likely, likewise, to find people who will present to you meals of many kinds. You may eat: but do not forget to mention the name of Allah.

In the late 16 th and 17 th centuries a number of great European scholars and jurists also turned their minds to the subject of laws governing the right to go to war, and to the conduct of war once engaged. 5 These writings influenced the minds of statesmen and soldiers from this point on – though unfortunately not always their actions. Although the 17 th –18 th centuries are replete with examples of kindness and restraint being displayed to non combatants – there are also many and notorious examples of gross atrocity. We must be careful, however, not to view this phenomenon through 21 st

century eyes. For example, no one from the Middle Ages through to well into the modern period would have thought of a war crimes trial for soldiers engaged in the sacking of a besieged city that had not surrendered itself to

4 AJM Tabari Ta’rikh alRusul wa alMuluk, I, (publisher unknown, 1850) 253.

5 Most notable amongst these are Gentilis 15521608, Ayala 154884, Suarez 15481617, de Vittoria 14831546 and Grotius 15831645. Grotius is generally credited with writing the first complete text on LOAC and his book De jure Belli ac Pacis is still regarded as a major authority.


the attackers – simply because this was not regarded, then, as a war crime. As Keen describes it: 6

In a city taken by storm almost any licence was condoned by the law. Only churches and churchmen were technically secure, but even they were not often spared. Women could be raped, and men killed out of hand. All of the goods of the inhabitants were regarded as forfeit.

The legal distinction between the brutal treatment that could be meted out to a town which stubbornly held out and forced the enemy to take it by assault, as compared to the milder treatment given to a town that capitulated in a timely manner, surprisingly survived until well into the 19 th century and was only formally abolished in the Hague Conventions of 1899. 7 What we discover, therefore, is a picture of haphazard and all too slow development of legal norms. But this is also equally true of the development of the common law that is the basis of our domestic legal system. We should not be surprised that the torture of enemy civilians to extract their property was regarded as unremarkable in an age in which torture was routinely used by the state, domestically, in respect of relatively minor criminal offences.

The 1860s saw a marked and rapid shift in the value of human sentiment relating to what was, and what was not, acceptable in warfare. While the war that gave rise to the Geneva Conventions was being prosecuted with vigour by Austrians, Italians and Frenchmen in Europe, in America too, war was on its way. The slaveowning states of the rural South were moving towards the creation of a confederacy that would attempt to break itself away for the dominance of the industrial North. What is often described as the first instance of a binding code for the conduct of an armed force in armed conflict was drawn up by Professor Francis Lieber at the commencement of the American Civil War in response to the fear of US President Abraham Lincoln that the war, which would necesCode was embodied as law by order of President Lincoln in 1863 and was derived from the practices regarded by

6 M H Keen The Laws of War in the Late Middle Ages (Routledge and Kegan Paul, London, 1965) 121.

7 Annex to Convention II The Hague, 29 July 1899. Regulations Respecting the Laws and Customs of War on Land, art 28: “The pillage of a town or place, even when taken by assault is prohibited.”


the principal European Powers as binding upon their own forces in time of conflict. 8

Meanwhile, at the other extreme of the earth war clouds were also gathering. The tensions between the land policies of the colonial Government and certain of the Māori tribes pushed to the point where war broke out in a number of places in New Zealand throughout the 1860s.

Even while early steps towards codifying a law of war were happening in the Northern Hemisphere, similar concerns to mitigate the effects of warfare had resulted in attempts to set rules for at least one part of the conflict in New Zealand. Quite independently, in each of these conflicts, humane individuals were giving significant thought to the development and implementation of rules for the conduct of hostilities and for the protection of victims of war.

Henare Taratoa was a lay preacher and chief of the Ngati Raukawa who had been educated by the Church Missionary Society. On 28 March 1864 he drafted a letter on behalf of Rewi Purirake addressed to the Colonel commanding colonial forces at Potiriwhi, District of Tauranga. It contained the following Māori “rules for the fight”:

Rule 1. If wounded, or captured whole, and the butt of the musket or hilt of the sword be turned to me, he will be saved.

Rule 2. If any Pakeha, being a soldier by name, shall be travelling unarmed and meets me, he will be captured, and handed over to directors of the law.

Rule 3. The soldier who flees, being carried away by his fears, and goes to the house of the priest with his gun (even though carrying arms) will be saved. I will not go there.

Rule 4. The unarmed Pakehas, women and children, will be spared.

At the battle of Gate Pa in 1864 these rules for the conduct of warfare were generally observed by the Māori forces. Although, inevitably, there were ups and down in observation of respect for human rights on both sides, the recognition that warfare was not a freeforall in which any excess was permissible is itself a remarkable development. One historian even goes so

8 Francis Lieber Instructions for the Government of the Armies of the United States in the Field (24 April 1863).


far as to describe the Māori as “among the bravest and perhaps the most chivalrous opponents against whom the British soldier ever had to fight.” 9

As the century passed into the age of modern warfare, however, it became apparent that chivalry alone was neither a complete nor effective guard against inhumanity. During the early stages of the Russian Campaign of World War II, German Admiral Canaris, head of military intelligence, advised his superiors that to kill or injure prisoners of war was, regardless of the state of treaty law, contrary to the principles of customary international law. To this Field Marshal Keitel replied: 10

The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. I therefore approve and back the measures.

The ‘measures’ in question led to the deaths of thousands of Soviet prisoners of war in German hands. Keitel’s words were, perhaps, more prophetic than he thought. The ideology that the conduct of military operations was regulated only by internally governing rules of chivalry was, indeed, destroyed. The result was the first really serious attempt at implementing international war crimes trials by the means of numerous postwar trials popularly subsumed within the titles “Nuremberg” and “Tokyo”. The London Charter of 1945 established the jurisdiction of the International Military Tribunal at Nuremberg to try:

1. crimes against peace: planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties;

2. war crimes: violations of the laws or customs of war including murder, illtreatment, deportation to slave labour of civilians, murder or illtreatment of prisoners of war, or persons on the seas, killing of hostages, plunder of property, wanton destruction of cities, or devastation not justified by military necessity;

3. crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against any

9 Ian Hay The King’s Service – An Informal History of the British Infantry Soldier (Methuen & Co, London, 1938) 177.

10 Judgement of the International Military Tribunal for the Trial of German Major War Criminals (Nuremberg) [1946] Cmd 6964.


civilian population, or persecutions on political, racial or religious grounds.

Jurisdiction over the same crimes was established for the International Criminal Tribunal for the Far East. 11 Before the creation of the Nuremberg and Tokyo Tribunals, neither crimes against peace nor crimes against humanity had formerly been defined as crimes under international law. This latter class of crimes is complementary to (and to a large degree overlaps) the subject matter of war crimes jurisdiction.

LOAC had from it earliest beginning sought to protect certain classes of civilians from attack. But there was no principle in that body of law which protected civilians from their own governments or leaders. As Winston Churchill was supposed to have remarked “the problem with Mr Hitler is not that he is a Nazi at home, but that he didn’t stay at home”. As long as a tyrant did not cross an international border, the law, it seems, did not have much to say on the subject. In the wake of World War II, such crimes came to be regarded as “ergo omnes” – breaches of law that affected all of mankind.

As can be seen from the jurisprudence of the ad hoc tribunals for Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court (discussed in part below) that once clear distinction between “International Humanitarian Law” (grave breaches of which are known as war crimes), and “International Human Rights Law” (very grave breaches of which may constitute crimes against humanity), 12 now bears very little practical weight for the commander on the ground. Most defendants since Nuremberg have faced charges under both classes of crime.

III Fundamental Principles

The influence of the Nuremberg and Tokyo trials gave greater impetus to the development and dissemination of detailed rules for the conduct of armed

11 UNGA Res 95(1), 11 Dec 1946, art 6 of the charter sets out the offences over which the tribunal had jurisdiction.

12 Rome Statute of the International Criminal Court, art 7 defines various criminal acts as being crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. There is no requirement that the acts take place in the context of a war.


conflict. Respect for the “rules and customs of war” was no longer regarded as a matter of discretion to be left to the conscience of the commander, but as a body of law that was enforceable and for which individuals could face individual criminal liability. The rationale for such rules was inextricably linked with the development of societal regard for human rights. Armed conflicts, it is now reasoned, do not last forever. It is in the interests of everyone to bring such conflicts to a rapid conclusion. The degeneration of conflicts into brutality and savagery will inevitably hinder the restoration of peace. The constraints on the means and methods of warfare seek to achieve certain basic aims, in particular:

a. The protection of persons who do not take a direct part in the conflict from the effects of war;

b. The reduction (as much as possible) of the suffering, loss and damage caused by armed conflict;

c. Safeguarding the fundamental human rights of all persons, including those who fall into captivity;

d. Facilitation of the restoration of peace by not resorting to treachery or other prohibited methods of warfare.

Development of these rules engages a series of principles foremost amongst which is the notion that military necessity must be tempered against the dictates of humanity.

IV Military Necessity

Military necessity is not the same thing as the 19 th century German doctrine paraphrased as Kriegsraeson geht vor Kriegsmanier, much favoured by the students of the Prussian General Karl von Clausewitz. This theory held that any measure was justified in order to defeat the enemy. 13 Clausewitz disavowed any general role for the law in either the decision to go to war, or the conduct of it. Modern LOAC, on the other hand, holds that a State involved in armed conflict is justified in using such lawful force as is necessary to bring about the submission of the enemy at the earliest possible moment and with the least possible cost to itself in lives and resources.

13 Karl von Clausewitz (translated by JJ Graham) On War (Kegan Paul, Trench, Trubner and Co, London, 1908).


The principle of military necessity accepts the realities of armed conflict. It allows for whatever lawful force is necessary and can be operationally justified in combat to make the enemy submit. Military necessity does not justify violation of LOAC – military necessity is a part of LOAC.

The natural corollary is that only those acts of destruction which are necessary to achieve the military objective are justified. Unnecessary acts of violence which are motivated by spite or revenge or profit do not enjoy the protection of LOAC. The means and methods of defeating the enemy are not unlimited.

In the trial of German General Wilhelm List by an American Military Tribunal at Nuremberg, the court even went so far as to spell out the obvious extreme conclusion of the fact that gaining a military advantage does not justify breaches of LOAC: “… the rules of International Law must be followed even if it results in the loss of a battle or even a war. Expediency or necessity cannot warrant their violation”. 14

V Humanity

The countervailing concept of humanity holds that not even war releases us from the most basic of obligations in respect of our fellow human beings. It forbids the infliction of suffering or destruction not necessary for the accomplishment of legitimate military purposes. Respect for the principle of humanity has resulted in the banning of certain weapons which are indiscriminate or which cause unnecessary suffering or superfluous injury. It establishes protections for those who are outofbattle (hors de combat) due to wounds, sickness or shipwreck. It establishes protections for prisoners of war and for civilians. It establishes rules for the protection of the cultural heritage of mankind and the natural environment in which all mankind lives and survives. It can be argued that the principle of humanity existed in the development of the law of armed conflict, long before human rights made its way into the legal lexicon of international law at all.

14 Trial of Wilhelm List and Others (The Hostages Trial) (1949) 8 Law Reports of Trials of War Criminals (Case No. 47) 66. See, however, the nuclear weapons advisory opinion of the ICJ, which seems to concede, in part, that different rules do apply to the choice of the weapons when the life of the state itself is in jeopardy. International Court of Justice Advisory Opinion on the Legality of Use or Threat of Use of Nuclear Weapons [1996] ICJ Rep 95.


VI Distinction

The principle of distinction (sometimes referred to as “identification” or “targeting”) is the mechanism by which the principle of humanity is given practical effect. The principle requires commanders to distinguish between legitimate military objectives and civilian objects when conducting military operations, particularly when selecting targets. In the conduct of military operations, precautions must also be taken to spare the civilian population, civilians and civilian objects. It is now not enough to leave such matters to chance.

VII Proportionality

It is an unfortunate fact that incidental injury to civilians or damage to civilian property is sometimes inevitable when attacking a military objective. This is particularly so when the enemy use civilians to shield their operations or place military objectives in close proximity to civilian objects. In planning an attack a commander is required to balance the overall benefit of the military action proposed, against the collateral or incidental damage that may occur as a result. The target of the attack must always itself be a legitimate military objective. Even where the object of the attack is legitimate, an attack may be unlawful if the destruction that it is likely to cause to civilians, civilian property, cultural property, or to the environment, is disproportionate to the overall military benefit anticipated. This principle is generally referred to as “proportionality.”

VIII The Duties of the Modern Commander

The duties of commanders who must plan or decide upon an attack increased considerably after the coming into force of Geneva Protocol I, 15 and have continued to increase as the number of treaties grows year by year and the development of customary international law changes the nature of the law year by year (if not day by day) without formal notification. The modern commander must:

a. do everything feasible to verify that the objectives to be attacked are military objectives and are not:

15 Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977).


(1) civilians or civilian objects; or

(2) subject to special protection (e.g. because the object is protected cultural property, is a hospital or medical unit, is a civil defence organisation, contains dangerous forces, contains the property or personnel of the United Nations, etc)

b. take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects; and

c. not launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of these effects, which would be excessive in relation to the concrete and direct military advantage

d. unless circumstances do not permit, give effective advance warning of:

(1) attacks which may affect the civilian population 16

(2) the use of weapons such as remotely delivered mines 17 and booby traps 18 which may affect the civilian population.

An attack must be cancelled or suspended if it becomes apparent that:

a. the objective is not a military one;

16 Geneva Protocol I, art 57(2)(c). Conventional Weapons Convention provides that warnings must be given for certain uses of mines, boobytraps and similar devices.

17 Conventional Weapons Convention Protocol II (Amended), art 6(4) provides that effective advance warning shall be given of any delivery or dropping of remotelydelivered mines that may affect the civilian population unless circumstances do not permit.

18 Conventional Weapons Convention Protocol II (Amended), art 7(3)(b) provides that it is prohibited to use booby traps and other devices in any city, town, village or other area containing a similar concentration of civilians in which combat between ground forces is not taking place or does not appear imminent unless … measures are taken to protect civilians from their effect, e.g. posting sentries, issuing of warnings or the provision of fences.


b. the objective is subject to special protection; or

c. the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of these effects, which would be excessive in relation to the concrete and direct military advantage.

Where there is a choice between different military objectives which, if attacked, will produce the same military advantage, the one which is expected to result in the least incidental damage must be chosen. 19

At least in theory such obligations could mean that the risk of producing disproportionate losses in one tiny corner of the battlefield (let us say, a mountain pass) could paralyse an entire army. The New Zealand Declaration of Understanding on Ratification of Geneva Protocol I states, however, that New Zealand understands that the military advantage anticipated from an attack is intended to refer to the attack as a whole and not from isolated or particular parts of that attack and the term “military advantage” involves a number of considerations, including the security of attacking forces. “Concrete and direct military advantage anticipated” means a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved.

These obligations are weighty ones and must be met, not in the contemplative quiet of a law library, but amid the noise, dirt, horror and uncertainty of a modern battlefield. It is an environment in which the prospect of individual criminal liability is no less real for the decisionmaker than the prospect of his or her own capture, injury or death, along with the knowledge of the consequences of cataclysmic failure through defeat or massive loss of life even in victory. Decisionmaking is dependent upon the quality of the information available to the commander at the time. The law will not “second guess” the commander’s decision if it transpires that a target reasonably believed to be a legitimate military objective turns out to be in fact a civilian object. As the New Zealand declaration of understanding on ratifying Geneva Protocol I makes clear:

… military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their

19 Geneva Protocol I, art 57(3).


assessment of the information from all sources which are reasonably available to them at the relevant time.

These types of considerations had very real resonance for World War II German General Lothar Rendulic. Amongst the other charges for which Rendulic stood trial at Nuremberg were allegations relating to the destruction of civilian property and infrastructure in occupied Finnmark province of Norway. Rendulic carried out the destruction solely to slow down the advance of a feared Russian invasion which, as it happened, never occurred. The American Military Tribunal found that Rendulic’s claim of military necessity had to be judged against the commander’s knowledge of the strategic situation at the time, not the true situation as it later emerged. Rendulic’s knowledge was based in part on Allied disinformation. The court said: 20

… we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal.

He was acquitted of that charge.

The political and public relations effects of a mistaken attack may still be extremely damaging even if it is not, strictly speaking, unlawful.

The commander must also, to the maximum extent feasible:

a. endeavour to remove the civilian population, individual civilians and civilian objects under his or her control, from the vicinity of military objectives; 21

b. avoid locating military objectives within or near densely populated areas; and

20 Trial of Wilhelm List and Others (The Hostages Trial) (1949) 8 Law Reports of Trials of War Criminals (Case No. 47) 68.

21 Geneva Protocol I, art 58 – this provision is expressly without prejudice to Geneva Convention IV, art 49 which provides that the inhabitants of occupied territory must be protected from unwarranted evacuations and transfers. Such obligations cannot be used as a pretext for “ethnic cleansing”.


c. take other necessary precautions to protect the civilian population, individual civilians and civilian objects under his or her control, against the dangers resulting from military operations.

IX Protecting the Environment

Until the modern period war was generally conducted with little regard for its effect on the environment, although examples do exist of orders prohibiting needless destruction of forests both in early texts and more recently. Indeed General Freyberg issued special orders prohibiting the needless destruction of trees during the Italian campaign.

The available means and methods of modern war, however give rise to the prospect of environmental catastrophe. The setting fire to the oil wells of Kuwait by Iraqi Armed Forces in 1991 is an example of the potential for widespread, long term and serious damage to the natural environment needlessly caused in the course of armed conflict. The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (En Mod Convention) prohibits the hostile use of techniques for changing, through deliberate manipulation of natural processes, the dynamics, composition or structure of the earth, including its animal and plant life, the earth’s crust, the earth’s water surface, the atmosphere, or outer space. The convention came into force on 5 October 1978 and was ratified by New Zealand on 7 September 1984.

There is also a general obligation in Geneva Protocol I to protect the natural environment against widespread, longterm and severe environmental damage. 22 Methods or means of warfare which cause such damage and thereby prejudice the health or survival of the population are prohibited. 23 It is also prohibited to make an attack upon the natural environment by way of reprisal. 24 Not surprisingly the International Court of Justice upheld this general obligation to protect the natural environment in the Nuclear Weapons Case and reaffirmed the prohibition of methods and means of

22 G A Art Res 47/37 of 25 November 1992 states that destruction of the environment, not justified by military necessity, is clearly contrary to international law.

23 Geneva Protocol I, art 55(1).

24 Geneva Protocol I, art 55(2) provides that attacks upon the environment by way of reprisals are prohibited.


warfare which are intended, or may be expected, to cause such damage and a prohibition of attacks against the natural environment by way of reprisals.

The Rome Statute of the International Criminal Court Art 8.2(b)(iv) provides that intentionally launching an attack in the knowledge that such an attack will cause widespread, long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage to be anticipated is a war crime. There is, however, no equivalent provision in respect of armed conflict not of an international character.

The Conventional Weapons Convention Protocol III Art (2)(4) also provides that it is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are, themselves, military objectives.

X Starvation Tactics

“Starvation tactics” are those activities which are intended to prevent the civilian population from having access to the essentials of life, such as food or water. They were once a fundamental aspect of all military operations and were, for example, practised with great diligence by Major General Trevor Chute in his 1867 expedition of destruction against all Māori pa sites and villages in his path between Wanganui and New Plymouth. 25 Even in those times the tactics of destroying kumara patches, digging up of crops and killing livestock in the certain knowledge that civilians would starve to death over the winter, was viewed as repugnant by some commanders. Colonel Sir James Alexander, for example, who fought under the rather more humane command of General Cameron in 1861, greatly disliked the practice of scorched earth policies: “Occupation and patrolling might have achieved the same object, and in a way were more worthy of a civilised people, and many deaths of cold and hunger spared.” 26 The prohibition does not apply to the interdiction of logistic support for enemy forces. Where the greatest difficulty arises is when a fortified or besieged position contains both combatants and civilians. British and Colonial forces soon recognised

25 Dick Scott Ask that Mountain (Heinemann/Southern Cross, Auckland, 1975) 22.

26 Sir James Alexander Incidents of the Maori War 18601861 (Richard Bently, London, 1863) 309.


that Māori pa sites, although tactically strong, were logistically weak. Māori concepts of a fair fight may have prohibited starving out a garrison; European concepts did not. Modern LOAC does not allow such tactics to be employed if the end result will be the starvation of a civilian population. The prohibition against the deliberate starvation of the civilian population as a method of warfare is absolute, regardless of motive. Starvation of the civilian population cannot be used as a device to put pressure on the resources of besieged or encircled forces.

In particular it is prohibited to:

a. attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, e.g., food, crops, livestock, drinking water, irrigation, etc., with the intention of causing starvation of civilians; 27 or

b. impede relief supplies provided for under the Geneva Conventions.

The Rome Statute of the International Criminal Court Art 8(2)(b)(xxv) provides that using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions, is a war crime.

XI The Galic Case

Many of these considerations came into clear perspective in the case of General Stanislav Galic who was commander of the Bosnian Serb Sarajevo Romanija Corps that encircled and besieged the city of Sarajevo in 1992. Galic’s actions, and those of the subordinates for whom he had responsibility, in the conduct of that siege led him to be tried and convicted of a number of offences including violations of the Laws or Customs of War by means of “acts of violence, the primary purpose of which is to spread terror among the civilian population, as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949) under Article 3 of the Statute

27 Geneva Protocol I, art 54 provides that starvation of civilians as a method of warfare is prohibited. Geneva Protocol II, art 14 provides that in armed conflict not of an international character starvation of the population is prohibited.


of the Tribunal.” He was also found guilty of crimes against humanity comprising murder and other inhumane acts. 28

An interesting feature of the Galic case is the role played by international military observers in the service of the United Nations. This group of officers had, amongst its number, some New Zealand officers, including Lt Col James Cutler, who was to later give evidence against Galic in his trial at The Hague. These United Nations observers had to contend on a daily basis with both the distressing human consequences and personal dangers of almost ceaseless shelling and sniping of the civilian population and in particular objects such as hospitals, houses and markets. 29 In the course of their duties these professional officers from many nations had frequent opportunity and cause to complain to Galic about the tactics and practices of his troops. This included the use of rapid fire antiaircraft guns to systematically destroy civilian housing, the preset “registration” of artillery targets such as food markets, bakers’ shops and water pumps, firing upon the property and personnel of the United Nations, sniping against individual civilians, cuttingoff essential supplies and utilities, and then refusing to allow those services to be reestablished.

The fact that Galic had been repeatedly warned that his actions were illegal, in particular by other professional soldiers, played a significant part in the consideration of the court. Galic was found guilty of war crimes and crimes against humanity and was sentence to 20 years imprisonment. His case is currently under appeal.

XII Prohibitions and Restrictions Relating to Weapons

As noted above, the right of parties to the conflict to choose methods or means of warfare is not unlimited. This means that the use in armed conflict of certain weapons and munitions has been banned outright so that they may not be used in any circumstance and may not be manufactured, stockpiled or transferred, even in times of peace. Other weapons are subject to restrictions as to use.

28 Prosecutor v Stanislav Galic Case (5 December 2003) No. IT9829T (Trial Chamber I).

29 Interview with Lt Col James Cutler (Retired), former United Nations Military Observer (Kevin Riordan, 5 August 2005).


Until recently, most prohibitions of weapons under LOAC have related to weapons which were already obsolete, such as barbed lance heads, or which had seldom delivered a material advantage to those who used them. If one seeks a good history of mankind’s attempt to ban its own creations a useful place to start is the attempt to ban the most powerful of all weapons – the Nuclear Weapons case before the International Court of Justice in The Hague.

One of the more satisfying judgements is the dissenting opinion of Judge Weeremantry. Unlike many international lawyers, he does not limit his analysis to the Western tradition of knightly chivalry, but seeks guidance from the practices and beliefs of all of the great civilisations. He identifies a common thread by which the just and wise forego the use of weapons which are either too cruel, or too deadly. Even he, however, was a little mistaken in one case, on the question of motive. In referring to the Christian tradition, he cites the Second Lateran Council of 1139 as an illustration of the prohibition of a weapon which was “too cruel to be used in warfare”, the crossbow. This he tells us was condemned as “deadly and odious to God”. The Pope’s objection to the weapon, which went largely unheeded, did not derive as Judge Weeremantry suggests from issues such as unnecessary suffering, superfluous injury or indiscriminacy (in the sense that we think of that term). It was simply that a cross bow could punch a bolt through the armour of a knight, thus enabling a foot soldier (a commoner) to kill a man at arms (a knight or a lord). When the church condemned the weapon as “striking it knew not who”, the criticism was not that it might hit civilians or other noncombatants, but rather that it might strike knights.

The march of technology through the next few centuries produced ever better and more deadly weapons, but scarcely was there ever any thought of eschewing a weapon on the grounds that it was too deadly. As Montaigne had observed: “the clatter of arms drowns the voice of the law.” 30 The race of technological development could, perhaps, be best summed up in a mock jingoistic piece of poetry by Hillaire Belloc:

Whatever happens we have got, the Maxim gun

30 Michel de Montaigne Essays III, i.


and they have not.

As long ago as the St Petersburg Declaration of 1868, 31 however, it was agreed that that the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy. This aim can be lawfully accomplished by “disabling” the armed forces of the enemy, but would be exceeded by the employment of arms which “uselessly aggravate the sufferings of disabled men, or render their death inevitable”. The employment of such arms was regarded as being “contrary to the laws of humanity.” Although Geneva Additional Protocol I Art 35(1) provides that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, it was left to the Conventional Weapons Convention and other specific weapons treaties to deal with particular weapons.

There are now numerous weapons which are either banned outright, or which have restrictions placed upon their use. There are, essentially, three grounds upon which international law has sought to ban particular weapons, namely that they are:

a. of a nature to cause superfluous injury or unnecessary suffering; 32

b. indiscriminate in their effect; 33 or

c. intended or likely to cause widespread, longterm and severe damage to the natural environment. 34

31 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight (Saint Petersburg, 29 November / 11 December 1868).

32 Hague Reg, art IV provides that it is prohibited to employ arms, projectiles or material calculated to cause unnecessary suffering. Geneva Protocol I, art 35(2) provides that it is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Convention Weapons Convention Preamble states that it is a principle of international law that prohibits the employment in armed conflict of weapons, projectiles and material and methods of warfare, of a nature to cause superfluous injury or unnecessary suffering. Rome Statute of the International Criminal Court, art 8(2)(b)(xx).

33 Geneva Protocol I, art 51(4)(b) provides that it is prohibited to use means and methods of warfare which cannot be directed at specific military objectives or cannot be limited and therefore are of a nature to strike both military objectives and civilians or civilian objects without distinction.


Not surprisingly there are some weapons that are all three.

The use of the words “superfluous injury” or “unnecessary suffering” recognise that the inherent nature of all weapons is to cause some degree of injury and suffering. LOAC provides, however, that weapons which unnecessarily aggravate suffering or render death inevitable should be banned.

Although the general proposition is clear enough, its application to the banning of any particular weapons by extrapolation has always proved problematic. Indeed recent history on the subject illustrates that States will only eschew the use of a particular weapon when it is dealt with specifically in a treaty, rather than by general application of principle. It is for this very reason that the Rome Statute of the International Criminal Court Art 8(2) (b) (xx) provides that employing weapons, projectiles and methods of warfare which are indiscriminate will be a crime within the jurisdiction of the court:

… provided that the weapon is the subject of a comprehensive prohibition and is listed in an annex to the statute. Such annex will be brought into effect by an amendment of the Rome Statute of the International Criminal Court by review conference 7 years after the statute comes into force.

34 Geneva Protocol I, art 35(3) provides that it is prohibited to employ methods or means of warfare which are intended, or may be expected to cause widespread, longterm and severe damage to the natural environment. En Mod Convention art I provides that it is prohibited to use environmental modifications techniques having widespread, longlasting or severe effects as the means of destruction, damage or injury to any other State party. Rome Statute of the International Criminal Court, art 8(2)(b)(iv) provides that intentionally launching an attack in the knowledge that such an attack will cause widespread, longterm and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage to be anticipated is a war crime. There is no equivalent provision in respect of armed conflict not of an international character. International Court of Justice Advisory Opinion on the Legality of Use or Threat of Use of Nuclear Weapons [1996] ICJ Rep 95, paragraph 3033. The court found that States must take environmental considerations into account when assessing what is necessary and proportionate. Environmental factors are properly taken into account in the implementation of LOAC.


The process of banning weapons inevitably involves the balancing of their military necessity against the humanitarian concerns expressed above. When a State bans a weapon such as the antipersonnel mine, it does so in the knowledge that it will require its forces not to use such weapons, even in their moment of greatest fear or danger or when faced with insurmountable odds. Even, in fact, at the cost of their own lives. Such an important consideration obviously requires States to analyse the availability and feasibility of more humane or discriminate alternatives, as well as their tactics, in order to judge the military necessity of such weapons.

In 1995 the General Assembly of the United Nations and the World Health Organisation sought an advisory ruling on the legality of nuclear weapons. The International Court of Justice held that “... the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law”. However the Court found that in view of the current state of international law, and of the elements of fact at its disposal, the Court could not conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence, in which the very survival of a State would be at stake. The New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987 s.5(a) and s.14, however, provides that a person who has control over a nuclear explosive device within the New Zealand Nuclear Free Zone, or in the case of a servant or agent of the Crown, anywhere in the world, is liable on conviction or indictment to imprisonment for a term not exceeding 10 years. It follows that the use, or threat of use, of such weapons is, for members of the New Zealand Armed Forces, unequivocally unlawful. 35

In addition to the rather obvious example of nuclear weapons, the following weapons are also prohibited for use by New Zealand Service members:

a. explosive 36 or expanding bullets for small arms (dumdum bullets): 37

35 See also Shimoda Case Tokyo District Court 1964, reprinted in (1996) 32 ILR 626 in which the Tokyo District Court found nuclear weapons to be unlawful.

36 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight (Saint Petersburg, 29 November / 11 December 1868).

37 Declaration (IV, 3) concerning Expanding Bullets (The Hague, 29 July 1899).


b. poison or poison weapons; 38

c. bacteriological weapons; 39

d. weapons that injure through the use of fragments that are not able to be detected by xray; 40

e. chemical weapons; 41

f. nuclear weapons; 42

g. antipersonnel mines; 43 or

h. laser weapons designed to cause permanent blindness. 44

The following weapons may be used only as indicated:

a. Antivehicle landmines (sometimes referred as “mines other than antipersonnel mines”) may only be used when placed in close proximity to military objectives. Their exact location is to be recorded, and warning signs posted when the tactical situation demands. 45

38 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907) art 23(a)

39 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (Opened for Signature at London, Moscow and Washington, 10 April 1972).

40 Protocol on NonDetectable Fragments (Protocol I) (Geneva, 10 October 1980).

41 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Paris, 13 January 1993).

42 New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987.

43 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction (18 September 1997) (Ottawa Convention).

44 Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention) (13 October 1995).

45 Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996).


b. Incendiary devices (flamethrowers, napalm etc.) may only be used against military objectives that are clearly separated from civilians and civilian objects. 46

c. Naval mines must be anchored and become harmless as soon as the mooring is broken. Appropriate precautions must be taken for the security of neutral shipping. Unanchored mines must become harmless one hour after being out of control of the tactical commander; 47

d. Torpedoes must become harmless after failing to hit their target. 48

e. It is prohibited to booby trap any internationallyrecognised protective emblems (such as the Red Cross); the sick, wounded or dead persons; burial or cremation sites; medical facilities, medical equipment, supplies or medical transport; children’s toys or articles associated with children; food or drink; kitchen utensils or appliances (except in military establishments); religious objects; historic monuments, works of art or places of worship; and animals or their carcasses. 49

Most explosive weapons have a propensity, in certain circumstances, to produce “blinds” or “duds” – projectiles that have been fired but have not exploded. Similarly, when forced to do so by the tactical situation, a force may have to leave explosives and ammunition behind when it shifts its position. Both situations create the risk of a significant humanitarian problem. This has led to the drafting of a further Protocol to the Conventional Weapons Convention (Protocol V) dealing with Explosive Remnants of War (ERW). It provides that States parties or parties to an

46 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) (Geneva, 10 October 1980).

47 Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines (The Hague, 18 October 1907).

48 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (12 June 1994) Rule 79 provides that it is prohibited to use torpedoes which do not sink or otherwise become harmless when they have completed their run.

49 Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996).


armed conflict must take all feasible precautions in the territory under their control affected by ERW to protect the civilian population, individual civilians and civilian objects from the risks and effects of ERW. Feasible precautions are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military consideration. These precautions include warnings, risk education to the civilian population, marking, fences and monitoring of territory affected by ERW. New Zealand has signed this protocol and is considering its ratification at the time of this paper. 50

Further work continues on the question of restrictions on the use of anti vehicle mines and on submunitions (such as “cluster bombs”).

XIII Dissemination by the Armed Forces

NZDF has an advanced Law of Armed Conflict training programme which trains all Armed Forces personnel to respect LOAC, including the Four Geneva Conventions of 1949 and the two Additional Protocols of 1977, the Chemical Weapons Convention, the Antipersonnel Mines Convention, the Conventional Weapons Convention, and other laws of armed conflict derived from treaty law and customary international law. This programme includes elements on the general protection of human rights. In addition to a routine programme of instruction, refresher lectures are provided for personnel deploying overseas on peace support operations. NZDF is also actively involved in the dissemination of International Humanitarian Law to foreign armed forces students studying in New Zealand.

It is no overstatement to say that when internal controls have broken down within a society there is often simply no other effective guarantor of human rights of the affected population than the armed forces of the world community. New Zealand Service members have often been highly effective in this role and it is with pride that I conclude this presentation with a tribute to those of our young Service members whom I have seen on operations throughout the world giving practical effect to human rights by their example, by their character and with common sense and instinctive respect for humanity which is, ultimately, of more value than the provisions of any treaty.

50 Conventional Weapons Convention Protocol V, art 5(1).


As we move deeper into the second century of “modern” LOAC we must face the prospect that New Zealand Service members may be called upon again, as they have in the past, to fight in the defence of this country. As the horrors of Srebrenica show only too well, it is perhaps too early to conclude that barbarity in warfare is a thing of the past. As a nation with a deep interest in the international rule of law, it is fitting that New Zealand plays an important role in the development of International Law in a way that ensures that the fundamental human rights of persons affected by war are protected top the greatest extent possible by deriving the correct balance between military necessity and humanity.


Documents

PROTECTING FUNDAMENTAL HUMAN RIGHTS IN · PDF file1 PROTECTING FUNDAMENTAL HUMAN RIGHTS IN TIMES OF WAR – THE MEANS AND METHODS OF WARFARE Kevin Riordan * I Introduction The year