Essay: Hague Convention

The law on Hague as a branch of International Humanitarian Law sets limits to the conduct of military operations. Its rules are intended to prevent or at least reduce death or destruction, as far as the hard reality of war allows. They establish the rights and duties of belligerents in the conducts of operations and limit the choice of means to injure the enemy. The law of Hague has a wider field than the law of Geneva but also possess a humanitarian character, though less specific, because the principal is to attenuate the evils of war and violence which is unnecessary for the purpose of war to weaken the resistance of the adversary.
It is however pertinent to note that the law of Hague and the law of Geneva which are the major branches of IHL draw their names from the cities where each of them was initially codified. It has been said that the law of The Hague originates in reason rather than sentiment, in mutual interest rather than philanthropy. The law of Hague is addressed directly to the high command of the armed forces, to commanders of military formations and to members of general staff since its rules exert a direct influence on the planning and execution of military operations in war while humanitarian law relating to the protection of the wounded and the sick, POWs and civilians in occupied territory is the responsibility of services in the rear and of the civilian authoritarians.
The 1899 Conference also adopted the Martens Clause, a clause adopted to resolve a stalemate at the conference regarding the status of resistance fighter who take up arms against an occupying authority. It first appeared in the preamble of the Hague Convention as follows:
In cases not covered by the Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of International Law derived from established customs, from the principle of humanity and from the dictates of public conscience.
This clause testifies to the completeness of humanitarian protection; in the absence of an explicit rule of certain type of conduct, it may not be assumed that such contract is permitted. On the contrary, a solution must be found that, like IHL in general, meets the requirement of human behavior.
The Hague Regulations have governed many wars in the 20th century and some of their provisions are still in force. They determined the rights and duties of belligerents in the combatants, and they limited the choice of weapons.
Some resolutions confirmed three essential principles of IHL which must be observed by all governments or other groups in armed conflicts. The three principles can be summarized as follows:
1. The rights of parties to the conflict to adopt means of injuring the enemies is not unlimited;
2. It is prohibited to launch attacks against the civilian population;
3. A distinction must be made at all times between persons taking part in the hostilities and members of the civilian population, to the effect that the latter be spared as much as possible.
The confirmation of these principles by the UN laid the ground work for development of IHL by the Diplomatic Conference of 1974 – 1977. Both protocols relating to international armed conflicts and Protocols II relating to non-international armed conflicts.
In reinforcing a principle of the law of armed conflicts which states that:
In any armed conflict, the right of the parties to the conflict to choose methods and means of warfare is not unlimited.
This basic rule is supplemented as follows:
It is prohibited to employ weapons, projectiles and material and methods of warfare of a nation to cause superfluous injury or unnecessary suffering.
Also, it is prohibited to employ methods or means of warfare which are intended or maybe expected to cause widespread, long terms and severe damage to the environment.
Among the prohibited method of combats are perfidy described as acts inviting the confidence of an adversary to lead him to believe that he is entitled to or is obliged to accord, protection under rules of international law applicable in armed conflict with intent to betray that confidence. The misuse in military operations of recognized distinctive emblems, in particular the Red Cross or Red Crescent is reprehensible not because of an individual member of the enemy armed forces, may be adversely affected, but also because such conduct generally destroys confidence in the emblem.
Furthermore, the use of weapons or ammunitions which have indiscriminate effects such as non-detectable fragments, mines and booby-traps and incendiary weapons were prohibited.
Finally, with regards to civilian objects, attacks against historic monuments, works or art or places of workshop which constitutes the cultural or spiritual is prohibited. Objects indispensable to the survival of the civilian population such as foodstuffs, livestock or drinking installations, thereby stressing that “starvation of civilians as means of warfare is prohibited”
1.5. Customary International Law JJJJJJJ
Customary International Law is also an important source of law. It consists of unwritten rules, created by the practice of States, carried out in the belief that they are under a legal obligation to behave in that way. The same rule can sometimes be found in a treaty and form part of customary law.
The Statute of the International Court of Justice describes customary international law as “a general practice accepted as law”. It is widely agreed that the existence of a rule of customary international law requires the presence of two elements, namely State practice (usus) and a belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law.
1.5.1. States Practice
State practice must be looked at from two angles: firstly what practice contributes to the creation of customary international law (selection of State practice); and secondly whether this practice establishes a rule of customary international law (assessment of State practice). Both physical and verbal acts of States constitute practice that contributes to the creation of customary international law. Physical acts include, for example, battlefield behavior, the use of certain weapons and the treatment afforded to different categories of persons. Verbal acts include military manuals, national legislation, national case-law, instructions to armed and security forces, military communiques during war, diplomatic protests, opinions and regulations, pleadings before international tribunals, statements in international fora, and government positions on resolutions adopted by international organizations. This list shows that the practice of the executive, legislative and judiciary organs of a State can contribute to the formation of customary international law.
The negotiation and adoption of resolutions by international organisations or conferences, together with the explanations of vote, are acts of the States involved. It is recognized that, with a few exceptions, resolutions are normally not binding in themselves and therefore the value accorded to any particular resolution in the assessment of the formation of a rule of customary international law depends on its content, its degree of acceptance and the consistency of related State practice. The greater the support for the resolution, the more importance it is to be accorded although, decisions of international courts are subsidiary sources of international law, they do not constitute State practice. This is because, unlike national court, international courts are not State organs. Decisions of international courts are nevertheless significant because a finding by an international court that a rule of customary international law exists constitutes persuasive evidence to that effect.
In addition because of the precedential value of their decisions, international courts can also contribute to the emergence of a rule of customary international law by influencing the subsequent practice of States and international organizations.
The practice of armed opposition groups, such as codes of conduct, commitments made to observe certain rules of IHL and other statements, does not constitute State practice as such. While such practice may contain evidence of acceptance of certain rules in non-international armed conflicts, its legal significance is unclear and, as a result, was not relied upon to prove the existence of customary international law. State practice has to be weighed to assess whether it is sufficiently ‘dense’ to create a rule of customary international law.
To establish a rule of customary international law, State practice has to be virtually uniform. Different States must not have engaged in substantially different conduct. The jurisdiction of the international court of justice shows that contrary practice which, at first sight, appears to undermine the uniformity of the practice concerned, does not prevent the formation of a rule of customary international law as long as this contrary practice is condemned by other States, they are not of a nature to challenge the existence of the rule in question. States wishing to change an existing rule of customary international law have to do so through their official practice and claim to be acting as of right.
Also, for a rule of general customary international law to come into existence, the State practice concerned must be both extensive and representative. It does not, however, need to be universal; a ‘general’ practice suffices. No precise number or percentage of States is required. One reason it is impossible to put an exact figure on the extent of participation required is that the criterion is in a sense qualitative rather than quantitative. This means that it is simply a question of how many States participate in the practice, but also which States.
Similarly, States whose population is in need of humanitarian aid are “specially affected” just as are States which frequently provide such aid. With respect to any rule of IHL, countries that participate in an armed conflict are “specially affected” when their practice examined for a certain rule was relevant to that armed conflict. Although there may be specially affected States in certain areas of IHL, it is also true that all States have a legal interest in requiring respect for IHL by other States, even if they are not a party to the conflict.
It is pertinent to note that customary rules are binding on all States regardless of whether the State ratified a treaty setting out the same rule. Examples of customary norms include prohibition of slavery, prohibition of torture, prohibition of genocide, prohibition of indiscriminate attacks against the civilian population etc.
The main advantage of customary rules is that they are binding on all States. However, while treaty rules are clear and it is straight forward to determine what States are bound by a particular treaty, it is harder to determine whether a particular rule has attained customary law status as well as what its precise content is. To identify “general” practice on the other hand statements of third States on the behavior of belligerents and on a claimed norm in diplomatic form have to be considered. Similarly, Military manuals are even more important, because they contain instructions by States restraining their soldiers’ actions, which are somehow “statements against interest.” Too few States, generally Western States, have however sophisticated manuals available to the public to consider their contents as evidence for general practice in the contemporary international community. In addition, some of them are claimed to reflect policy rather than law. For all these reasons, particular consideration has to be given in the field of IHL to treaties as a source of customary international law-in particular to the general multilateral codification conventions and the process leading to their elaboration and acceptance.
Taking an overall view of all practice it may, for example, be found that a rule of the two 1977 Additional Protocols corresponds today to customary law binding on all States and belligerents, either because it codified (stricto sensu) previously existing general international law; it translated a previously existing practice into a rule, because it combined, interpreted, or specified existing principles or rules, because it concluded the development of a rule of customary international law or finally because it was catalyst for the creation of a rule of customary IHL through subsequent practice and multiple consent of States to be bound by the treaty. It is therefore uncontroversial that most, but clearly not all rules of the two 1977 Additional Protocols today provide a formulation for parallel rules of customary international law.
Although, IHL is a branch widely codified in widely accepted multilateral Conventions, customary rules remain important to protect victims on issues not covered by treaties, when non-parties to a treaty are involved in a conflict, where reservations have been made against the treaty rules, because international tribunal prefers-rightly or wrongly-to apply customary rules and because in some legal systems, only customary rules are directly applicable in domestic law.
The comprehensive study recently completed by the ICRC clearly demonstrated that the great majority of the rules of the Geneva Conventions and the Additional Protocols have now acquired a customary nature. The study also leads to the conclusion that most of the rules on the conduct of hostilities – initially designed to apply solely to international armed conflicts – are also applicable to customary rules in non-international conflicts, thus considerably expanding the law applicable in those situations. Given the time consuming nature and other difficulties of treaty-making in an international society with more than 190 members and the rapidly evolving needs of war victims for protection against new technological and other inhuman phenomena.
As elements of customary international law, the four principles of distinction, military necessity, proportionality and humanity which will be further examined in the subsequent paragraphs complement and underpin the various international humanitarian instruments and apply to all States, except to those that persistently object to them. These principles, however, are not based on a separate source of international law, but on treaties, customs or general principles of law. On one hand, they can and must often be derived from the existing rules, expressing those rules’ substance and meaning. On the other hand, they inspire existing rules, make those rules understandable and have to be taken into account when interpreting those rules.