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4. Hostilities: All Is Not Fair
- Temple University Press
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4 Hostilities All Is Not Fair T he laws of war will allow the enemy’s water supply to be bombed, or the enemy to be drowned in it, but they will not allow putting poison into that water. The enemy can be made to die of thirst or drowned but cannot be killed by an undetectable poison. Odd though it may seem, there is a reasonable basis for this distinction. Here we consider this and related limitations on hostilities. Protecting Powers Before studying the specific details of international law that affect hostilities , we must note the role of “protecting powers.” The Geneva Conventions (1949) clarified the status of a nation or organization designated a “protecting power” as ordinarily a neutral nation “whose duty it is to safeguard the interests of the Parties to the conflict.”1 If the belligerents want to communicate with each other about reported violations of the Conventions or such matters as the status of POWs, civilians, religious leaders, and buildings of general cultural importance, they can ask the protecting power to assist. Although the protecting power is usually a nation, the International Committee of the Red Cross (ICRC) has accepted some aspects of this role and carried out various humanitarian functions, including visiting and inspecting and delivering mail and food packages to POW camps. The officials of the ICRC are (always, it seems) Swiss citizens and have an impressive record of neutrality. There is some expectation that the ability of the ICRC or another protecting power to inspect POW camps will help keep the camps running on a humanitarian basis. Respect for the ICRC is based on the fear that they will publish an embarrassing report on conditions in a POW camp. Is fear of publicity a serious fear? Apparently it is, based on the reported efforts to clean up problems before such visits. Every nation seems to care about being regarded positively by the rest of the world and seems to have “a decent respect for the opinion of mankind” (as our Declaration of Independence put it). This is fortunate because the power of publicity is one of the main forces that keep nations respectful—fearful—of the agreements that they have signed. We turn to some of the details of these agreements. The Hague Rules and Some History The Hague Convention (18 October 1907) is the international textbook on how to fight a war. Schoolteachers, of course, have noticed that textbooks are not always read, or understood, or believed. However, what are known as “The Hague Rules” (in the “Annex to the Convention” of 1907) consist of fifty-six “Articles” that are generally taken to be the written codification of the “Laws and Customs of War on Land.”2 The Hague Rules did not just suddenly appear, waiting to be signed by the original forty-two states. The 1907 Convention was preceded by two earlier major “International Declarations ” in the nineteenth century, and those also followed earlier efforts. The United States was rather prominent among the participants in those earlier movements. As mentioned earlier, a Treaty of Friendship and Trade was concluded in 1785 between Prussia and the United States. Benjamin Franklin, for the United States, and Frederick II, for Prussia, used it to lay down rules for the protection of the wounded and prisoners. Although written in a time of peace between the two countries, the treaty was an effort to set up rules to be followed during war, It was a groundbreaking statement, said to have “very closely foreshadowed the provisions of the Geneva Conventions ,” as mentioned earlier.3 At this stage, however, it was only a treaty between two nations and not an international law expected to apply to all nations. The next development, and one of the most significant in this brief history , was the Lieber Code. As noted earlier, Francis Lieber produced, and President Lincoln ordered the Army to follow, the most impressive code that had guided any military force up to that time. At the initiative of “the Imperial Cabinet of Russia” in 1868, an international military commission assembled in St. Petersburg and signed a declaration “Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight.” The agreement is printed on less than one page. It declared: 66 / Chapter 4 [3.226.254.255] Project MUSE (2024-03-29 01:04 GMT) That the only legitimate object which States should endeavour to accomplish during war is to...