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1 58 Levie on the Law of War 

65. See note 28 supra. In view of the fact that the 1949 Geneva Conventions clearly indicate that the 
activities of the Protecting Power and of the ICRC are complementary and not alternative (see Levie, note 
53 supra, at 394-96), it is difficult to understand why the resolution was phrased in the disjunctive. 

66. ICRC, Reaffirmation, at 7, where the following appears: 

". . . Thus the wars of Italy with Abyssinia in 1935, of Japan with China in 1937, of Germany with Poland 
in 1939, of Russia with Finland in the same year, and ofjapan with the United States in 1941, opened without 
a formal declaration of war." 
To the same effect see ibid., 87-88. 

67. Common Article 9/9/9/10 is the basic provision of the four 1949 Geneva Conventions relating to 
the activities of the ICRC. Paragraph 3 of common Article 10/10/10/11, concerning replacements and 
substitutes for Protecting Powers, permits the ICRC to offer its services to perform the humanitarian functions 
of the Protecting Power when there is no Protecting Power. This is probably the basis upon which the ICRC 
has acted in the post- 1949 Geneva Conventions era. One of its more successful recent efforts was in connection 
with the Honduras-Salvador conflict. 9 Int'l Rev. Red Cross 493-96 (1969), 10 ibid., 95-105 (1970). 

68. A/1120, para. 226. Italy suggested considering the possibility of "delegating authority to the 
International Red Cross, so that that body may, in the case of armed conflict, ensure that its own representatives 
are continually present in the belligerent countries throughout the duration of the conflict." Ibid., at 79 of the 
original United Nations document. A somewhat similar suggestion was made by the group of experts convened 
by the ICRC. ICRC, Reaffirmation 107. 

69. Le Comite International de la Croix-Rouge et le Conflit de Coree: Recueil des Documents, passim 
(2 vols., 1952); British Ministry of Defence, Treatment of British Prisoners of War in Korea 33-34 (1955). 

70. "The International Committee and the Vietnam Conflict," 6 Int'l Rev. Red Cross 399, 402-03 
(1966); St. Louis Post-Dispatch, Feb. 5, 1970, p. 2B, col. 1. 

71 . Strangely enough, it has apparently been permitted to function with virtually no restrictions in Israel 
for the protection of both prisoners of war and of civilians in the occupied territory. See, for example, 8 Int'l 
Rev. Red Cross 18-19 (1968); 9 ibid., 173-76, 417-19, 488, and 640. On the other hand, the United Nations 
has encountered some difficulty in making an investigation of the treatment of civilians in the occupied territory 
because of the Israeli position that the resolution calling for it was biased and one-sided. However, even the 
International Conference of the Red Cross found it necessary to express concern about the plight of these 
people. 9 Int'l Rev. Red Cross 613 (1969). 

72. The Report also makes a suggestion to this latter effect. A/7720, para. 217. It is entirely possible, 
however, that some States, notably Switzerland and Sweden, which did yeoman work as Protecting Powers 
during both World Wars, would not wish to shoulder these additional, and potentially controversial, problems. 
This would make the solution herein suggested all the more necessary. It might be appropriate to cover this 
eventuality by providing for a possible division of functions, where desired, the Protecting Power, if there be 
one, performing the traditional functions with respect to wounded and sick, prisoners of war, and civilians, 
and the substitute performing the function with respect to the conduct of hostilities. 

73. In ICRC, Reaffirmation 89-90, this is ascribed to the fact that many of the conflicts since 1949 have 
been of an internal nature; but what of Korea, the Yemen, Vietnam, the Middle East, etc.? In none of these 
conflicts has there been a Protecting Power. 

74. In A/7720, para. 216, it is suggested that a new organ be created which could "offer its services in 
case the Parties do not exercise their choice." For the reasons already advanced, it is not belived that any system 
other than one which operates automatically will constitute a solution to the problem. 

75. This calls for selection by one State, acceptance by the State so selected, and approval by the State 
on whose territory the Protecting Power is to operate. See Levie, note 53 supra, at 383. 

76. The Report {A/1120, para. 218) makes two suggestions with respect to the legal effect of the 
designation of a Protecting Power or of an international organ as a substitute therefor: (1) that the Protecting 
Power, or the substitute, should be considered as an agent of the international community and not merely of 
one belligerent State; and (2) that the designation, being solely humanitarian in purpose, should have no legal 
consequences. The first comment is already true under the 1949 Geneva Conventions, although the term 
"Parties to the Convention" is deemed appropriate rather than "international community" (sec Levie, note 
53 supra, at 382-83); and the second comment might well be accomplished by the use of a provision such as 
that appearing in the last paragraph of common Article 3 of the 1949 Conventions: "The application of the 
preceding provisions shall not affect the legal status of the Parties to the conflict." This provision was eventually 
applied during the French-Algerian conflict of the late 1950s and early 1960s. 

77. The ICRC experts were also of this opinion. ICRC, Reaffirmation 89 and 91. Had such an 
international body heretofore existed with such powers and duties, there could have been immediate 
investigations of allegations of such charges as the use of gas in the Yemen by the United Arab Republic, of 
bacteriological agents in Korea by the United Nations Command, etc. In this regard, see Joyce, Red Cross 



Major Inadequacies 159 

International 201 (1959). In fact, it is probably safe to say that under these circumstances many such allegations 
would never be made in the first place! 

78. The subject is there discussed at length. A/7720, paras. 216-225. Despite the cautious defense of the 
use of a political organization as a Protecting Power, made in the last paragraph cited, it would appear that, 
for the reasons heretofore stated (see text in connection with note 46 supra), the creation of a new, non-political 
body is basically the position taken by the Report. 

79. See note 57 supra. The reservations were justified. The article, in effect, authorizes the Detaining 
Power to unilaterally select a substitute for the Protecting Power. The reservations would merely require 
agreement on the part of the Power of Origin, as in the case of the selection of the Protecting Power itself. 
See note 75 supra. Of course, were it a Party to the new convention which we are discussing, it would have 
agreed in advance to the filling of the void by the ICEHRAC. 

80. I Final Record 201. Concerning this resolution, see the text in connection with note 45 supra. 

81. Once again, of course, the ICEHRAC would need a fairly large operational staff, including many 
specialists, to serve as its eyes and ears to collect and sift evidence. But this is no more than an administrative 
problem which should present no insurmountable difficulty. 

82. There is no reason whatsoever why, under appropriate legal safeguards (see note 76 supra), these 
provisions could not be made applicable to internal conflicts, and to conflicts of "national liberation," which 
are frequendy much more sanguinary than are international conflicts. "Nigeria/Biafra: Armed Conflict with 
a Vengeance," he. cit., note 64 supra. 

83. The question will undoubtedly be asked immediately why the present discussion concerning the 
elimination of chemical and biological weapons does not include nuclear weapons. That matter has been, and 
continues to be, one of the major subjects of discussion at the meetings of the nuclear powers themselves and 
at the meetings of the Conference of the Committee on Disarmament (formerly the Eighteen-Nation 
Committee on Disarmament). The status of these various discussions and the reason for the stalemate which 
has now existed for more than a decade is well known. It could not conceivably serve any useful purpose for 
this paper to make a proposal for the banning of nuclear weapons, with or without inspection. Probably only 
some scientific breakthrough will solve that problem. In the meantime we have what some call "the equilibrium 
of dissuasion." ICRC, Reaffirmation 50. 

84. The Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other 
Gases and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925 (94 L.N.T.S. 65; 25 
Am. J. Int'l L. Supp. 94 (1931)), uses the term "bacteriological." Because scientific developments since 1925 
have indicated the possible use in armed conflict of various living organisms (e.g, rickettsiae, viruses, and fungi), 
as well as bacteria, the more inclusive "biological" is now very generally used. In this regard see the Report 
of the Secretary-General based on the Report of the Group of Consultant Experts, United Nations Document 
A/7575/Rev. 1 , Chemical and Bacteriological (Biological) Weapons and the Effect of Their Possible Use 
(United Nations publication, Sales No.: E. 69, I. 24), paras. 17-18 [hereinafter cited as UN, CB Weapons], 
and Article I of the British Draft Convention, note 130 infra, which refers to "microbial and other biological 
agents." 

85. In the Foreword to the Report of the Secretary-General (see UN, CB Weapons, note 84 supra, at 
viii), U Thant quoted as follows from his 1968 Annual Report: 

"... The question of chemical and biological weapons has been overshadowed by the question 
of nuclear weapons, which have a destructive power several orders of magnitude greater than that of 
chemical and biological weapons. Nevertheless, these too are weapons of mass destruction regarded 
with universal horror. In some respects, they may be even more dangerous than nuclear weapons 
because they do not require the enormous expenditure of financial and scientific resources that are 
required for nuclear weapons. Almost all countries, including small ones and developing ones, may 
have access to these weapons, which can be manufactured quite cheaply, quickly and secredy in small 
laboratories or factories ..." 

86. A comparatively short list of some of the works in this area will be found in UN, CB Weapons, note 
84 supra, at 99. To that list should certainly be added McCarthy, The Ultimate Folly: War by Pestilence, 
Asphyxiation, and Defoliation (1969). 

87. Mention need be made of only two authoritative forums where numerous discussions of this subject 
have taken place: the United Nations, where it has been discussed at length both in the First Committee and 
in the General Assembly; and the United States Congress where Representative Richard D. McCarthy and 
others similarly concerned have not allowed the matter to pass unnoticed. See, for example, N.Y. Times, 
Nov. 19, 1969, p. 9, col 1. 

88. One author makes the rather pessimistic evaluation that this recent concern "is perhaps an index of 
the growing role of such weapons in military preparations." Brownlie, "Legal Aspects of CBW" in Rose (ed.), 
CBW: Chemical and Biological Warfare 141, 150-51 (1968). [This collection hereinafter cited as Rose, CBW]. 



LEVIE ON THE LAW OF WAR 



Michael N. Schmitt 

Leslie C. Green 

Editors 



INTERNATIONAL LAW STUDIES 
VOLUME 70 

NAVAL WAR COLLEGE 

NEWPORT, RHODE ISLAND 

1998 



Library of Congress Cataloging-in-Publication Data 

Levie on the law of war / Michael N. Schmitt, Leslie C. Green, 
editors. 

p. cm. — (International law studies; v. 70) 
Includes index. 

1. War (International law) I. Schmitt, Michael N., 1956- 
II. Green, L.C. (Leslie C.), 1920- . III. Series. 
KZ6385.L49 1997 
341.6— dc21 

97-49141 
CIP 



TABLE OF CONTENTS 

Page 

FOREWORD 

Rear Admiral James R. Stark iii 

ACKNOWLEDGMENTS . v 

INTRODUCTION 

Michael N. Schmitt 

Leslie C. Green vii 

Professor Howard Levie and the Law of War 

Richard J. Grunawalt xv 

I — The Nature and Scope of the Armistice Agreement 1 

II — Prisoners of War and the Protecting Power 29 

III — The Employment of Prisoners of War 53 

IV — Across the Table at Pan Munjom 89 

V — Maltreatment of Prisoners of War in Vietnam 95 



— Some Major Inadequacies in the Existing Law Relating to the 

Protection of Individuals During Armed Conflict 129 

Addendum 162 

VII — Civilian Sanctuaries: An Impractical Proposal 165 



II — International Law Aspects of Repatriation of Prisoners of War 

During Hostilities: A Reply 173 

IX — Weapons of Warfare 191 

Addendum 201 

X — The Falklands Crisis and the Laws of War 203 

XI — Criminality in the Law of War 215 

Addendum 225 



ii Contents 

XII — Means and Methods of Combat at Sea 227 

XIII — T\\e Status of Belligerent Personnel 'Splashed' and Rescued by a 

Neutral in the Persian Gulf Area 239 

XTV — Nuclear, Chemical, and Biological Weapons 247 

Addendum 267 

XV — Tlie Rise and Fall of an Internationally Codified Denial of the 

Defense of Superior Orders 269 

XVI — Submarine Warfare: With Emphasis on the 

1936 London Protocol 293 

XV11— The 1977 Protocol I and the United States 339 

XVIII — Prohibitions and Restrictions on the Use of 

Conventional Weapons 353 

Addendum 372 



l — Violations of Human Rights in Time of War as War Crimes . . . 373 

■The Law of War Since 1949 387 

XXI — Prosecuting War Crimes Before an International Tribunal .... 405 

XXII — The Statute of the International Tribunal for the Former Yugoslavia: 

A Comparison with the Past and a Look at the Future 413 



[ — Was the Assassination of President Lincoln a War Crime? . . . 437 

XXIV— War Crimes in the Persian Gulf 443 

XXV — Enforcing the Third Geneva Convention on the Humanitarian 

Treatment of Prisoners of War 459 

APPENDIX: Principal Publications of Professor Howard Levie . . 469 

INDEX 477 



FOREWORD 

The International Law Studies "Blue Book" series was initiated by the Naval 
War College in 1901 to publish essays, treatises and articles that contribute to 
the broader understanding of international law. In Levie on the Law of War, the 
series republishes selected essays of Howard S. Levie. 

Professor Levie has contributed to the articulation and development of the 
law of war for over half a century; initially as a judge advocate in the United 
States Army, next as a Professor at Saint Louis University School of Law, and 
then as a widely published and highly respected Professor Emeritus. In 1971 
Professor Levie began a long relationship with the Naval War College, when 
he occupied the Charles H. Stockton Chair of International Law. In authoring 
two volumes of the "Blue Book" series, Prisoners of War in International Armed 
Conflict and Documents on Prisoners of War, he revitalized the series and restored 
it to the forefront of scholarly works involving international law. Thus, it is 
fitting that we again turn to Professor Levie for this, the seventieth volume of 
the series. 

The editors' selection of articles from Professor Levie's voluminous works 
illustrate the breadth and depth of his scholarship, and evidence the profound 
impact he has had on the law applicable to armed conflict. We are pleased to 
be able to remind those who have long read Professor Levie, and acquaint those 
who are new to his writings, of the continued vitality of his work. While the 
opinions expressed in these writings are those of Professor Levie, and are not 
necessarily those of the United States Navy nor the Naval War College, one 
cannot quarrel with Professor Levie's commitment, as one of my predecessors, 
Vice Admiral James B. Stockdale noted in the Foreword to Prisoners of War, "to 
those principles of humanitarianism necessary to regulate an imperfect world." 

On behalf of the Secretary of the Navy, the Chief of Naval Operations and 
the Commandant of the Marine Corps, I extend to the editors our thanks in 
bringing together these outstanding examples of Professor Levie's work. To 
Professor Levie, I extend my gratitude for his many contributions to the Naval 
War College. His legacy at the College will be an enduring one. 



JAMES R. STARK 
Rear Admiral, U.S. Navy 
President, Naval War College 




Professor Howard S. Levie 



ACKNOWLEDGMENTS 

We extend our appreciation to the following publishers who, in order to 
honor Professor Levie, kindly granted permission to reprint materials originally 
appearing in their books and journals. Please note that any errors or omissions 
which have occurred in the reprint of these articles are the responsibility of the 
editors, not of the original publishers. 

The Akron Law Review for permission to reprint Prosecuting War Crimes Before 
an International Tribunal 

The American Bar Association Journal for permission to reprint Across the Table 
at Pan Munjom, an article published in Saint Louis University Magazine which 
originally appeared in the ABA Journal as Sidelights on the Korean Armistice 
Negotiations. 

The American Society of International Law for permission to reproduce the 
following articles (© The American Society of International Law): The Nature 
and Scope of the Armistice Agreement: Prisoners of War and the Protecting Power, The 
Employment of Prisoners of War, and International Law Aspects of Repatriation of 
Prisoners of War During Hostilities: A Reply. 

The Association of the Bar of the City of New York for permission to reprint 
Some Major Inadequacies in the Existing Law Relating to the Protection of Individuals 
During Armed Conflict from WHEN BATTLE IMAGES, HOW CAN LAW PROTECT, 
copyright© 1971. 

Boston University Law Review for permission to reprint Maltreatment of Prisoners 
of War in Vietnam, © Boston University Law Review, Boston University. 

Professor Alberto Coll for permission to reprint The Falklands Crisis and the Laws 
of War from THE FALKLANDS WAR: LESSONS FOR STRATEGY, DIPLOMACY 

and International Law. 

Combined Books, Inc., for permission to reprint Was the Assassination of 
President Lincoln a War Crime? from DR. MUDD AND THE LINCOLN 
ASSASSINATION: THE CASE UNOPENED. 

The Israel Yearbook on Human Rights for permission to reprint Civilian 
Sanctuaries: An Impractical Proposal and Violations of Human Rights in Time of War 
as War Crimes. 



vi Levie on the Law of War 

The Editorial Board of the Revue de Droit Militaire et de Droit de la Guerre 
for permission to reprint The Law of War Since 1949 and The Rise and Fall of an 
Internationally Codified Denial of the Defense of Superior Orders. 

The Saint-Louis- Warsaw Transatlantic Law Journal for permission to reprint 
War Crimes in the Persian Gulf 

St. John's University School of Law for permission to reprint Prohibitions and 
Restrictions on the Use of Conventional Weapons and TTie 1977 Protocol I and the 
United States. 

The Syracuse Journal of International Law and Commerce for permission to 
reprint Means and Methods of Combat at Sea and The Statute of the International 
Tribunal for the Former Yugoslavia: A Comparison with the Past and a Look at the 
Future, copyright © 1996, Syracuse Journal of International Law and Commerce. 

Transnational Publishers, Inc., for permission to reprint Criminality in the Law of 
War from INTERNATIONAL CRIMINAL LAW. 

The United States Air Force Academy Department of Law for permission to 
reprint Enforcing the Third Geneva Convention on the Humanitarian Treatment of 
Prisoners of War. 

The University of North Carolina Press for permission to reprint Weapons of 
Warfare from LAW AND RESPONSIBILITY IN WARFARE: THE VIETNAM 
EXPERIENCE, copyright ©1975, the University of North Carolina Press. 

The Virginia Journal of International Law Association for permission to reprint 
The Status of Belligerent Personnel 'Splashed' and Rescued by a Neutral in the Persian 
Gulf Area. 



INTRODUCTION 

It is a rare privilege in life to ascend to the top of one's chosen profession. 
Yet to do so, and then, upon reaching mandatory retirement age, successfully 
embark on a path that takes you to the pinnacle of still another is an extraordinary 
accomplishment. Professor Howard Levie is just such an individual. Rising to 
the rank of Colonel in the United States Army, he compiled an impressive 
military record while serving in an array of high-level legal positions, including 
Chief of International Law for the United States Army, and Staffjudge Advocate 
of the Southern European Task Force, European Command, and Sixth Army. 
Colonel Levie also had the rare opportunity to shape history, most notably 
through his participation in the Korean War Armistice talks. 

Following retirement from the Army, now "Professor" Levie went on to 
establish himself in academia as one of the masters of international law, 
particularly the law of armed conflict. A second retirement as Professor Emeritus 
from Saint Louis University only served to accelerate that process. He is as 
prolific today at 90 as he ever was; more importandy, his work continues to 
impact the direction the law of armed conflict takes — and is likely to take in the 
future. Indeed, as will become apparent, his own views continue to evolve even 
as this selection of his works is published. 

The defining characteristic of Professor Levie's work is this very duality; he 
is neither simply an academic in uniform, nor merely a soldier in academic robes. 
Too often, academics, including some who have served in the military, are 
divorced from the reality of the combat operations that law shapes. Their work 
is thought provoking, but of little real utility to the warfighter or policy maker. 
The view from the ivory tower is simply too distant. By the same token, as some 
military officers enter the halls of academia, their output tends to the anecdotal, 
rather than incisive. While there is merit in the "sea story" as the subject of 
scholarly contemplation, it cannot replace the critical thinking that characterizes 
true scholarship. These individuals aptly describe the fog of war, but do litde to 
clear it away. 

Professor Levie, by contrast, is as much the academic as soldier — and vice 
versa. Thus, he brings a synergism to his writings that sets them apart from so 
much else in the field. They are as relevant and useful at the Pentagon or Naval 
War College as they are at Oxford or Yale. Therein lies their uniqueness . . . 
and beauty. Perhaps it is fitting, then, that his selected works be edited by both 
a military officer and an academic. 

Professor Levie's writings appear in a variety of journals, not all of which are 
readily available. We thought, therefore, that it would be worthwhile to bring 
together in one volume those which we considered most valuable and thought 



vlii Levie on the Law of War 

provoking. We also thought it would be fitting recognition on the occasion of 
his 90th birthday in December 1997. 

Of course, any editor who must select 20 or so writings from a body of work 
that includes 10 books (several of which are multi-volume works) and over 75 
articles, and continues to grow, understandably approaches that task with some 
trepidation. In making our selection, we set two criteria for inclusion. First, we 
wanted to include articles which remained especially relevant, to produce a book 
which would be useful to today's, and tomorrow's, scholars and practitioners. 
To that end, we asked Professor Levie to prepare addenda to five chapters 
reflecting changes in the law since they were originally published. Second, we 
hoped to emphasize those topics in the law of war to which Professor Levie 
devoted his greatest attention, and upon which his international reputation is 
primarily based. Thus, there is a heavy emphasis on prisoners of war, the first 
subject to which he turned, and that which has been the focus of much of his 
work since. There are also a number of articles discussing the legal issues 
surrounding war crimes, an interest of Professor Levie's in which he has recendy 
invested significant effort. Given his long ties to the Naval War College, it should 
come as little surprise that we have also elected to include several articles dealing 
with naval warfare. The articles are presented chronologically, both because 
several pieces cut across subject-matter boundaries, and to emphasize the 
impressive temporal scope and developmental vector of his jurisprudence. As 
an aside, we also endeavored to remain true stylistically to the original articles, 
with the exception of converting foot notes to end notes. Thus, we only altered 
the original article when a clear editing error had been made. 

The opening piece, The Nature and Scope of the Armistice Agreement (1956), 
apdy meets these criteria for inclusion. Written while Professor Levie was on 
active duty, it reviews the history and development of the armistice as an 
instrument governing non-hostile relations between belligerents, concluding 
that formal peace treaties are being supplanted by armistices as the prevailing 
method of ending wars. Not unexpectedly, Nature and Scope was resorted to time 
and again by practitioners to help ascertain the status of relations between Iraq 
and Coalition States following cessation of hostilities in Operation Desert Storm. 
Indeed, it was referenced as late as 1997 by judge advocates considering the status 
of aircrew members that might fall into Iraqi hands while enforcing the no-fly 
zones of Operations Southern and Northern Watch. The scholarly treatment 
provided the topic in Nature and Scope is complemented neady by Across the Table 
at Pan Munjom (1965), an account of Professor Levie's own experiences as a 
negotiator in the Korean armistice talks. 

In Prisoners of War and the Protecting Power (1961), Professor Levie turns to a 
topic for which he has become best known, prisoners of war. Writing in the 
American Journal of International Law nearly four decades ago while still a 



Introduction ix 

military officer, he discusses the historical evolution and functioning of the 
institution of the Protecting Power, arguing that it deserves to play a central role 
in safeguarding prisoners from excesses by Detaining Powers. It is a theme to 
which he will return time and again. For instance, in Some Major Inadequacies in 
the Existing Law Relating to the Protection of Individuals During Armed Conflict 
(1971), he singles out the non-existence of a means for ensuring the presence of 
a Protecting Power in each State party to an armed conflict as one of four major 
lacunae in the law. Soon thereafter, in International Law Aspects of Repatriation of 
Prisoners of War During Hostilities: A Reply (1973), an extended comment on an 
article by Professor Richard Falk on repatriation, Professor Levie rejects the idea 
of releasing repatriated prisoners of war to "ad hoc and self-styled humanitarian 
organizations," as occurred on occasion during the Vietnam conflict. Instead, 
he argues, repatriation is best accomplished by Protecting Powers, or, in their 
absence, the International Committee of the Red Cross. He returns to the topic 
once more in the last work included in the book, Enforcing the Third Geneva 
Convention on the Humanitarian Treatment of Prisoners of War (1997). It is there 
that he labels it a "tragedy" that the sole use of Protecting Powers since the 1949 
Convention occurred during the Falklands War. 

As the tides just cited suggest, though the need for Protecting Powers is a 
pervasive call in Professor Levie's work, he delved into virtually every facet of 
the prisoner of war theme. For instance, in The Employment of Prisoners of War 
(1963), he outlines the Geneva Prisoners of War Convention limitations on the 
use of prisoner labor. In this piece, Professor Levie's "soldier" persona surfaces 
in his understanding of the need for balance in treatment of the subject, for while 
prisoner labor is certainly subject to abuse by a Detaining Power, productively 
occupying prisoners can actually enhance their morale. 

Of the articles reproduced here, Maltreatment of Prisoners of War in Vietnam 
(1968) offers the most wide ranging treatment of prisoner of war prescriptions. 
In it, Professor Levie takes on the contentious issue of the applicability of the 
Prisoners of War Convention to the Vietnam War. Was it an international armed 
conflict thereby requiring compliance by all Parties to the Convention, or was 
it a non-international armed conflict, in which case only the minimal protections 
of Common Article Three to the Geneva Conventions of 1949 would apply? 
What customary law applies to the treatment of those captured? What 
responsibilities does a belligerent have vis-a-vis maltreatment of prisoners by an 
ally? Professor Levie then surveys allegations of mistreatment by the United 
States, South Vietnam, North Vietnam, and the Vietcong. The piece retains its 
relevance, for the applicability of the Convention and the quality of treatment 
required to be accorded to prisoners were both issues that surfaced during the 
Gulf War, not only with regard to the treatment of Coalition prisoners held by 
the Iraqis, but also as to the treatment of Iraqi prisoners of war. 



x Levie on the Law of War 

Professor Levie has also devoted much of his effort to writing about war 
crimes and the appropriate enforcement regime for them. Criminality in the Law 
of War (1986) sets the stage by distinguishing between the treatment accorded 
prisoners for pre-capture and post-capture offenses. Also setting the stage is The 
Rise and Fall of an Internationally Codified Denial of the Defense of Superior Orders 
(1991). Superior orders — the claim that the accused committed a war crime 
because he was so ordered by a superior officer (or Government) and that refusal 
would have resulted in harsh punishment — is a purported defense that has been 
presented for as long as war crimes have been prosecuted. Upon review of its 
historical assertions and the largely unsuccessful efforts to codify a denial of the 
defense, Professor Levie concludes that "any defense counsel . . . would be 
professionally derelict if he failed to assert . . . that the rule denying availability 
of the defense of superior orders has been rejected as a rule of international law." 
It is a conclusion that draws into question the official US position, as stated in 
law of armed conflict manuals such as the Commander's Handbook on the Law 
of Naval Operations, that no such defense exists. 

Several of Professor Levie's more recent articles on the subject follow. In 
Violations of Human Rights in Time of War as War Crimes (1995), he emphasizes 
that the law of war includes much of what is in peacetime labeled "human 
rights," and that violations of human rights norms during armed conflict may 
subject the offender to punishment as a war criminal, as has been done in the 
case of the former Yugoslavia. Writing the same year, in Prosecuting War Crimes 
Before an International Tribunal, Professor Levie offers a primer on how to conduct 
a war crimes prosecution. How does one accumulate evidence or determine 
whom to charge? Which rules of evidence apply? The Statute of the International 
Tribunal for the Former Yugoslavia: A Comparison with the Past and a Look at the 
Future (1995) serves as the mechanism by which Professor Levie looks at how 
one war crimes tribunal has been set up to handle such matters. The article is a 
comprehensive description of the International Tribunal and its procedures; 
topics range from organizational structure and jurisdiction to rules of procedure 
and penalties. Having described an actual war crimes tribunal, in War Crimes in 
the Persian Gulf (1996) he conducts a retrospective analysis of war crimes 
committed by the Iraqis during the Gulf War, and oudines how a tribunal might 
have handled them had the political decision been taken to establish one. Finally, 
Was the Assassination of Abraham Lincoln a War Crime? (1995) is a fascinating look 
back in history at the question: "Is the murder of an individual committed in 
wartime by one or more individuals of the same nationality as the victim a war 
crime?" Given the contentiousness of events ranging from incidents of 
involvement in overseas assassination attempts cited by the Church Committee 
to speculation concerning US intentions regarding Saddam Hussein, the article 
remains timely despite its use of a case study over 100 years old. 



Introduction xi 

While Professor Levie may be best known as one of the world's most eminent 
prisoners of war and war crimes scholars, his contributions have ranged far more 
widely. Given his enduring affiliation with the United States Naval War College, 
it should come as little surprise that he has spent much time considering the law 
of naval warfare. We have selected three noteworthy pieces on the subject. 
Methods and Means of Combat at Sea (1988) is an excellent survey of the subject 
generally, serving as a primer on everything from the applicability of Protocol 
I Additional of 1977 and protection of the environment to exclusion zones and 
submarine warfare. He deals with the latter subject much more thoroughly in 
Submarine Warfare: With Emphasis on the 1936 Protocol (1993). It is an exhaustive 
study of the development of the laws of submarine warfare from the American 
Revolution through both world wars to the present. Finally, in The Status of 
Belligerent Personnel 'Splashed' and Rescued by a Neutral in the Persian Gulf Area 
(1991) he addresses the status of Iranian or Iraqi personnel who fell into the 
hands of US forces engaged in escort operations during the Iran-Iraq war. 
Finding that there was, despite occasional hostile incidents involving US forces, 
no state of armed conflict between the United States and either Iran or Iraq, 
Professor Levie concludes that they would not be entided to prisoner of war 
status under the Prisoners of War Convention, but that they would be entitled 
to basic humanitarian protections such as adequate food and water and being 
free from torture. 

We have included several articles dealing with specific weaponry which lies 
at the heart of current debates in the law of armed conflict community. Weapons 
of Warfare (1975) is an analysis of three types of "weapons" that created great 
controversy during the Vietnam War — lachrymatories, napalm, and herbicides. 
Finding the use of all three most likely legal during that conflict, Professor Levie 
goes on to urge, on practical and humanitarian grounds, against their use in 
future wars. In light of the Chemical, Conventional Weapons, and 
Environmental Modification Conventions, and Protocol I Additional to the 
Geneva Conventions, this piece, written over two decades ago, is particularly 
prescient. 

Two articles on the subject explore both extremes along the continuum of 
weaponry. Nuclear, Chemical, and Biological Weapons (1991) surveys the law 
applicable to each titled category, with special emphasis on naval warfare. 
Professor Levie concludes that while there is no per se prohibition on the use of 
nuclear weapons, the use of either biological or chemical weapons is legally 
proscribed. Ultimately, he notes that "one might almost regret our inability to 
turn back the clock to the nineteenth century, when nuclear, chemical, and 
biological weapons . . . were not even a gleam in a scientist's eyes." An addendum 
to the piece illustrates the extent to which his aspirations are slowly being realized 
in the Chemical and Biological Weapons Conventions, which outlaw the use 



xii Levie on the Law of War 

of either genre of weapons, and the 1996 holding of the International Court of 
Justice in the Nuclear Weapons Case, which finds the use of nuclear weapons 
generally contrary to international law, except in self-defense "in which the very 
survival of a State would be at stake." (The Court did not rule on the legality 
of use even in the latter circumstances.) 

At the other end of the continuum of weapons lie conventional weapons. 
Prohibitions and Restrictions on the Use of Conventional Weapons (1994) examines 
the Conventional Weapons Convention and its three annexed Protocols 
governing non-detectable fragments, land mines, and incendiaries, respectively. 
Despite initial US opposition to Protocol III (the US ratified I & II), Professor 
Levie argues that "it is an extremely humanitarian agreement which contains 
nothing irreparable of either a political or a military nature that warrants the 
refusal of the United States and other major military powers to accept it." 

Broader in its coverage of methods and means of warfare is The Law of War 
Since 1949 (1995), a sweeping survey of the major post-war instruments 
governing armed conflict — the Seabed Treaty, Bacteriological Convention, 
Environmental Modification Convention, Protocol I Additional, Conventional 
Weapons Convention, and Chemical Weapons Convention. It is a provocative 
piece in which he restates his support of Protocol III (concerning incendiaries) 
to the Conventional Weapons Convention, and then bemoans the fact that a 
convention to prohibit the existence of nuclear weapons is unlikely (even had 
the International Court found their use fully contrary to international law) due 
to the reality that a number of actual, or potential, possessors would fail to 
become Parties, "or would become Parties with the preconceived idea of 
violating their agreement and thereafter being in a position to hold the 
non-nuclear world hostage." 

Professor Levie's willingness to at times swim against the tide of official US 
positions is perhaps most evident in The 1911 Protocol I and the United States 
(1993). In this article he serially reviews those provisions of the Protocol which 
the US finds objectionable, setting forth why they are in fact not contrary to 
US interests, or in the case of those which are, explaining how concerns could 
be addressed with a very few understandings or reservations at the time of 
ratification. Given his credibility as an objective and insightful scholar, and his 
impressive credentials as an accomplished military officer, the article has proven 
expectedly influential, particularly in military circles. 

As should be apparent, Professor Levie has not shied away from forcefully 
expressing his opinion. That has certainly been the case with regard to Protocol I 
Additional and the weapons treaties. However, it is not a recendy emergent 
propensity on his part. For instance, in Major Inadequacies (1971), cited supra 
regarding Protecting Powers, he argues for a method by which an automatic 
determination that the law of armed conflict applies to a situation can be made, 



Introduction xiii 

cites the need for "a complete and total prohibition of the use in armed conflict 
of any and all categories of chemical and biological weapons," and laments the 
non-existence of a code governing aerial warfare. It was in the same year that 
he wrote Civilian Sanctuaries: An Impractical Proposal. In the article, Professor 
Levie takes issue with a proposal contained in two reports of the UN Secretary 
General (prepared at the request of the General Assembly) that civilian 
sanctuaries be established during armed conflict to ease the difficulty belligerents 
experience in discriminating civilians and civilian objects from legitimate 
military objectives. To Professor Levie, the proposal did not comport with 
reality; States would not be willing to set apart large areas in which any activity 
contributing to the war effort would be forbidden, nor willing to deprive 
themselves of the labor necessary for defense industries. In a worst case scenario, 
the areas could actually become a source of blackmail leverage for a nuclear 
nation facing total defeat. In its stead, Professor Levie argues for compliance (not 
new norms), codification of the law of air warfare, and creation of a system of 
sanctions against States (in addition to individuals) which violate the principle 
of military necessity. 

Finally, The Falklands Crisis and the Laws of War (1985) has been included in 
the collection as a capstone piece — a case study of sorts — that examines many 
of the principles discussed throughout the book, but in the context of a single 
conflict. In it, Professor Levie considers maritime exclusion zones, protection 
of fishing vessels and hospital ships, incendiary weapons, the role of protecting 
powers, treatment of civilians, prisoners of war, and mercenaries. The result is 
a classic Levie tour deforce. 

What was perhaps most gratifying in preparing Levie on the Law of War was 
the extent to which those involved found themselves distracted from the 
somewhat tedious editing process by the substantive brilliance of the articles. 
We almost unconsciously found ourselves reading when we should have been 
editing. Indeed, a recurring experience for all was rediscovering how relevant 
and perspicacious pieces that were in some cases decades old remained. It is our 
hope that others will share in that experience. 

When all is said and done, this book would not have been possible without 
the invaluable assistance of many friends at the Naval War College. Professor 
Jack Grunawalt, Director of the College's Oceans Law and Policy Department, 
provided encouragement throughout the project, enthusiastically agreeing to 
write the opening chapter about Professor Levie's distinguished careers. While 
funding was intermittendy problematic, Captains Ralph Thomas and Dan 
Brennock of the Center for Naval Warfare Studies ensured it never was for the 
editors, thereby giving us the much appreciated luxury of concentrating on the 
task at hand. Ms. Carole Boiani and Ms. Allison Sylvia of the College's 
Publications and Printing Division supervised the preparation of the manuscript, 



xlv Levie on the Law of War 

an oft onerous task that involved scanning less than optimally preserved articles, 
and then correcting the coundess errors that result from this "miracle 
technology." They did so with professionalism, speed, and most importantly, a 
seemingly inexhaustible supply of good spirits. We are indebted to our colleagues 
in the Oceans Law and Policy Department — Professor Grunawalt, Captain 
Thomas, Colonel Lou Reyna, Commander Jeff Stieb, and Lieutenant Colonel 
James Duncan — who willingly read page proofs to identify "typos" that had 
eluded our own proofreading efforts. Colonel Duncan was especially helpful as 
overall director of the International Law Studies series (Blue Books) in handling 
the mechanics of transforming a completed manuscript into a finished book. Of 
course, we would be horribly remiss if we failed to thank our families for their 
understanding support throughout. 

Of course, we owe our deepest debt of gratitude to Professor Levie. He 
allowed us full editorial control of the project, never once providing anything 
but the gendest of suggestions. In fact, upon reviewing the notional table of 
contents, he only recommended one addition, Across the Table at Pan Munjom, 
emphasizing that the decision on whether to include it was ours, not his. We 
did, as we should have in the first place, and the book benefited thereby. Indeed, 
our sole complaint is that as we were putting the collection together, Professor 
Levie continued to write high quality pieces that deserved to be included, 
thereby creating a dilemma of where to draw the line in a corpus of jurisprudence 
that grew as we worked. In fact, Enforcing the Third Geneva Convention was 
included at the final hour, forcing us to work with drafts because it was not 
actually published until our page proofs were in their last revision. Simply put, 
Professor Levie was an absolute joy to work with. 

We wish Professor Levie well as he continues to guide the rest of us to better 
understanding of the law of war. It was our great honor to serve as editors for 
this labor of love. 



Michael N. Schmitt, Lt Col, USAF Leslie C. Green, CM., LL.B., LL.D., F.R.S.C. 
Professor of International Law Stockton Professor of International Law 

United States Naval War College United States Naval War College 



Professor Howard Levie and the Law of War 

Professor Richard J. Grunawalt 

Once in a great while, someone conies along who makes a significant and 
lasting contribution to his or her chosen profession, a contribution that conies 
to define the paradigm of that calling. With respect to the development and 
articulation of the law of war, Professor Howard Levie is just such an individual. 
Soldier and scholar, patriot and humanitarian, Professor Levie has compiled a 
most remarkable record of achievement in furthering the understanding of, and 
compliance with, the law of war over the past six decades. 

Born in Wolverine, Michigan on 19 December 1907, Professor Levie moved 
to Baltimore, Maryland in 1912. Five years later, his family moved to New York 
City, where Howard graduated from Dewitt Clinton High School in 1924. 
Matriculating at Cornell University that year, Professor Levie was selected to 
participate in the "Junior Year in France" program (sponsored by the University 
of Delaware) and, in Paris, attended both the Cours de Civilisation at the Sorbonne 
and the Ecole Libre des Sciences Politiques during academic year 1926-27. (Howard 
was later to recount that among his instructors at the latter was Professor Pierre 
Laval, who became Premier of the Vichy Government during World War II 
and who was tried, convicted and executed by the French following the war 
for collaborating with the Nazis. Howard describes Professor Laval as, "an 
excellent teacher.") Returning to Ithaca, New York in 1927, Professor Levie 
entered Cornell Law School under a program that allowed him to combine his 
senior year as an undergraduate with his first year of law school. He was elected 
to Phi Beta Kappa that year and received a Bachelor of Arts degree the following 
Spring. In June 1930, he was awarded a Juris Doctor degree from Cornell Law 
School. 

The young attorney was admitted to the practice of law in New York State 
in June 1931 following a brief (six months) mandatory clerkship. He was engaged 
in the private practice of law in New York City from 1931 until he entered the 
United States Army through the Volunteer Officer Candidate program in 
September 1942. It was during that period that he met and married the lovely 
Blanche Krim in 1934. Shortly after Howard joined the Army, Blanche did the 
same, enlisting in the Women's Army Corps. 

Howard underwent basic training at Fort Eustis, Virginia, where, aged 35, 
he was 15 to 18 years older than most of his fellow soldiers. In December 1942, 
Private Levie reported to the Anti-Aircraft Artillery Officer Candidate School 
at Camp Davis, North Carolina. Commissioned a Second Lieutenant in March 
1943, he was assigned to Battery K of the 701st Coast Artillery Regiment at 
Camp Miles Standish, Taunton, Massachusetts, but soon relocated to Newport, 



xvi Levie on the Law of War 

Rhode Island where Battery K was tasked to provide anti-aircraft protection to 
the Navy torpedo factory on Goat Island. Although his war-time sojourn in 
Newport was short-lived, this assignment marked the beginning of what was to 
become in later years a close and enduring affinity to this lovely city by the sea. 

Having completed a course of instruction for "Triple A" battery officers at 
Fort Totten, New York, and one in photo-interpretation at Camp Richie, 
Maryland, Howard was directed to Camp Stoneman, Pittsburgh, California, for 
further transport to a "permanent station outside the continental limits of the 
United States, tropical climate." And "tropical climate" it turned out to be. 
Arriving in New Guinea in March 1944, Professor Levie was assigned to Staff 
Headquarters, Intermediate Section (responsible for all New Guinea). Promoted 
to First Lieutenant in November, he was subsequently reassigned to 
Headquarters, Army Forces, Western Pacific (AFWESTPAC) in Manila in July 
1945. On 2 September 1945, the Japanese surrendered in a ceremony aboard 
USS MISSOURI in Tokyo Bay. 

Following cessation of hostilities, AFWESTPAC became heavily involved in 
supervising the repatriation of British and American prisoners of war from China, 
Korea and Japan. It was this experience that helped prompt Howard's interest 
in the law applicable to prisoners of war; an interest that led to a life-time study 
of that discipline, to include the writing of two books and innumerable law 
review articles (many of which are reprinted in this collection). It was also this 
assignment that initiated Howard's long involvement in war crimes issues. 
Present at the arraignment of Japanese General Tomoyuki Yamashita before a 
U.S. Military Commission in Manila on 8 October 1945, Professor Levie 
became in later years, an internationally recognized authority on war crimes. 
Indeed, his book Terrorism in War: The Law of War Crimes (1993) is widely 
regarded as one of the best of the genre. 

In November 1945, Professor Levie was awarded the Bronze Star Medal for 
his service in the Southwest Pacific area and, more importantly (at least from 
Blanche's point of view), returned to the United States (terminating a 22-month 
separation). Blanche having recently been discharged from active duty, joined 
Howard in Washington, DC where he was assigned to the War Department 
General Staff as Executive Officer, Supply Control Branch, Requirements 
Division, Army Service Forces. A collateral duty as Recorder of the Board for 
a joint Army-Navy review of Alaskan defenses took Howard throughout the 
length and breadth of Alaska in June of 1946. 

In September 1946, Howard accepted a Regular Army commission in the 
Judge Advocate General's Corps with a date of commissioning backdated to 19 
December 1932 and in the rank of Captain backdated to 19 December 1942. 
The following January he was promoted to Major. 



Grunawalt xvii 

Major Levie began his service in the Judge Advocate General's Corps in 
March 1947 in the Legislative Branch of the Claims Division of the Office of 
the Judge Advocate General. In February 1949, he entered the Master of Law 
program at George Washington University School of Law. However, that effort 
was interrupted by his selection to attend the Army Command and General Staff 
College at Fort Leavenworth, Kansas. Following graduation in June 1950, Major 
Levie received orders to the Far East Command. The North Korean invasion 
of South Korea on the 25th of June 1950, and the re-designation of the Far East 
Command as the United Nations and Far East Command, was to have a 
substantial impact on Professor Levie's career. Promoted to Lieutenant Colonel 
in September 1950 while assigned to the Judge Advocate Division at General 
Headquarters in Tokyo, Howard became involved with the legal review for 
General MacArthur of several Japanese war crimes trials in which death sentences 
had been adjudged. It was in this period that he also became involved in the 
issue of the status of North Koreans captured by United Nations Command 
Forces. In March 1951, he was detailed to Korea to serve as Law Member of a 
General Court-Martial convened by General Mathew Ridgway, which tried 
several U.S. Army members for offenses involving the killing of North Korean 
soldiers and, in one case, North Korean civilians. 

In July 1951, Lieutenant Colonel Levie was reassigned to the staff of the 
United Nations Command Armistice Delegation. That delegation initially 
included Vice Admiral Turner Joy, U.S. Navy (Senior Delegate); Major General 
Henry Hodes, U.S. Army; Rear Admiral Arleigh Burke, U.S. Navy; Major 
General Lawrence Craigie, U.S. Air Force and Major General Paik Sun Yup, 
ROK Army. As detailed in Chapter IV of this volume, Howard played a major 
role in the drafting of the Korean Armistice Agreement. He completed his 
Korean assignment in June 1952 and returned to Japan. Thereafter, Howard 
served as Liaison Officer between the Judge Advocate Division at Command 
Headquarters (which had relocated to Yokohama) and other command elements 
that remained in Tokyo. He also participated in several important courts-martial 
cases, including that of Dorothy Krueger Smith, who was convicted of 
murdering her Army Colonel husband; the case reached the Supreme Court of 
the United States where it was overturned on jurisdictional grounds. 

Lieutenant Colonel Levie's next assignment was as Staff Judge Advocate at 
the Command and General Staff College at Fort Leavenworth, Kansas. While 
there, he and Blanche renewed many old acquaintances and Howard pursued 
further his interests in the law of war. That tour of duty commenced in March 
1953, but was cut short in September of the following year to permit Howard 
to assume the reins of the newly-established International Affairs Division of the 
Office of the Judge Advocate General in Washington as its first Chief. Shortly 
thereafter, he was promoted to the rank of Colonel. It was during this tour that 



xviii Levie on the Law of War 

Howard first met with such future international law luminaries as Richard Baxter 
(then in the Office of General Counsel, Department of Defense, and in later 
years a Judge of the International Court of Justice), Lou Henkin (then a foreign 
affairs officer at the State Department and subsequendy a Professor of Law at 
Columbia Law School and President of the American Society of International 
Law) and Monroe Leigh (then in the office of the General Counsel, Department 
of Defense, and later Counselor of the Department of State). Now firmly 
immersed in the practice of public international law, Howard was instrumental 
in building the International Affairs Division, with its International Law and 
War Crimes branches, into a front line authority on the law of war. It was also 
during this assignment that he first visited the Naval War College in Newport, 
Rhode Island, beginning a lifetime association with this institution. Another 
memorable event was his participation in the presentation of the four 1949 
Geneva Conventions for the Protection of Victims of War to the United States 
Senate for its advice and consent to their ratification. 

In July 1955, Colonel Levie had occasion to make a lengthy visit to Europe 
to assess various status of forces agreement (SOFA) issues with several NATO 
nations. While in Europe, he also attended the Academy of International Law 
at the Hague for which he received a Certificat d'Assiduite. In November 1955, 
Howard was again in Europe, this time to participate in NATO meetings 
regarding prisoner of war matters. 

Colonel Levie's Washington assignment also allowed him to renew his 
determination to obtain a Master of Law degree from George Washington Law 
School (with a specialization in international law). While studying under 
Professor Tom Mallison during that process, Howard authored a paper entitled 
''The Nature and Scope of the Armistice Agreement." Subsequently published 
in the American Journal of International Law (and included in this present work 
as Chapter I), that paper launched Professor Levie's life-long career as an 
articulate spokesman for, and commentator on, the law of war. Despite his 
frequent trips abroad and heavy work schedule as Chief, International Affairs 
Division, Howard earned his LL.M. degree in 1957. He also had occasion during 
this period to lecture on SOFA matters at a variety of fora, including the 
Washington Foreign Law Society, the Federal Bar Association, the National 
War College and the Judge Advocate General's School in Charlottesville, 
Virginia. 

In April 1958, Colonel Levie was transferred to the Southern European Task 
Force headquarters in Verona, Italy, as Staff Judge Advocate. During that tour 
of duty, he often was additionally tasked to support the U.S. Sending State Office 
for Italy in a variety of NATO SOFA matters. He also began a long and fruitful 
association with the International Society of Military Law and the Law of War, 
attending its first Congress in Brussels in May 1959. 



Grunawalt xix 

The next stop on Howard's distinguished military career was as Military Legal 
Advisor at the U.S. European Command (USEUCOM) Headquarters, then 
located in Paris, France. Arriving in Paris in December 1959, he was soon 
intensively involved in operational law matters for USEUOM, a number of 
which necessitated multiple visits to both NATO and non-NATO nations. 
Throughout this period, Howard further honed his law of war credentials. 

In June 1961, the Levies returned to the United States where Howard was 
assigned to Sixth Army Headquarters at the Presidio of San Francisco, California, 
as Staffjudge Advocate. He was to hold that position until January 1963, when, 
having reached the age of 55, he was required by law to retire from active service. 
On 31 January 1963, Howard retired in the rank of Colonel, United States 
Army. Awarded the Legion of Merit by an appreciative Army and a grateful 
nation, he returned to civilian life after 21 years of active military service. 

Professor Levie's retirement from the Army signaled not the end, but the 
renewal of his journey toward international renown as a law of war scholar. In 
September 1963, he joined the faculty of Saint Louis University Law School as 
an Associate Professor of Law (he was to become a full Professor with tenure 
just two years later). Although his first teaching assignment at the Law School 
was Commercial Transactions, he soon assumed responsibility for instruction of 
International Law. From September 1963, until his retirement from Saint Louis 
University in June 1976 at age 69 (pursuant to mandatory rules then in force at 
that institution), Howard wrote over 20 scholarly articles pertaining to the law 
of war (seven of which are reprinted in this present volume). While much of 
Howard's writings during his tenure at Saint Louis concerned prisoner of war 
and war crimes matters, he also had occasion to address a broad spectrum of law 
of war issues. It was also during this period that Howard and Blanche returned 
to Newport to spend a sabbatical year (academic year 1971-72) at the Naval 
War College where he was the Charles H. Stockton Professor of International 
Law. 

As the Stockton Chairholder, Professor Levie filled a Chair which had been 
held by some of the preeminent international legal scholars in the world. His 
predecessors included the legendary John Bassett Moore, one of the first judges 
on the Permanent Court of International Justice; Professor Manley O. Hudson, 
then of Harvard Law School, and later a judge on the International Court of 
Justice; Professor Hans Kelsen of the University of California at Berkeley; 
Professor Leo Gross of the Fletcher School of Law and Diplomacy; and Professor 
Oliver J. Lissitzyn of Columbia Law School. 

Professor Levie's retirement from Saint Louis University in 1977, and 
attainment of Professor Emeritus of Law status, once again marked both an end 
and a beginning. Indeed, 21 years of active military service and 14 years of law 
school teaching were but the prologue to this illustrious career. As we shall see, 



xx Levie on the Law of War 

Howard's most prolific and influential writing has occurred since 1977; some 
20 years later, Professor Levie continues to contribute to the development and 
articulation of the law of war. 

In 1977, the Levies established their permanent home in Newport. Howard 
resumed his teaching of international law within the Naval War College as 
lecturer in the International Law and Oceans Affairs program of the Naval Staff 
College (a role he continued, pro bono, for 20 years, teaching 40 consecutive 
classes, until voluntarily withdrawing from the program in July 1997 at age 89 
- much to the regret of the College); as the Lowry Professor in 1982-83; and as 
an Adjunct Professor of International Law from 1991 to the present. He 
continues to lecture in the Naval War College elective course on the Law of 
Combat Operations. For over a decade he provided instruction in the Geneva 
Conventions to military attorneys of all the services at the Naval Justice School. 
During 1984-1988, he was also lecturer in International Law at Salve Regina 
College. In addition, Howard has been an honored participant in various 
conferences and symposia on the law of naval warfare within the Naval War 
College. His enormous contribution to the Naval War College was formally 
recognized in October 1994 when Rear Admiral Joseph Strasser, President of 
the College, announced the establishment of the Professor Howard S. Levie 
Military Chair of Operational Law in the Joint Military Operations Department. 
Through this singular honor, Howard joined an elite listing of distinguished 
Americans for whom such Chairs have been established at the College, including 
Admirals Chester Nimitz, William Halsey , Arleigh Burke and Raymond Spruce, 
and Generals Tasker Howard Bliss and Colin Powell. As many readers of this 
volume can personally attest, Howard has also been a major contributor 
throughout these past two decades to the work of a wide variety of international 
and domestic organizations and societies concerned with the law of war. 

Levie on the Law of War is a compilation of 25 articles written by Howard over 
the course of his distinguished career. Selected by the editors to reflect the broad 
range of topics which he has addressed with great incisiveness, they represent 
some of the most influential of his works. However, it must be remembered 
that he is also the author or editor of an impressive array of books. His first was 
written during his tenure as the Stockton Professor of International Law at the 
Naval War College. Perhaps the finest treatise ever written on the law governing 
prisoners of war, Prisoners of War in International Armed Conflict, was published as 
volume 59 of the Naval War College International Law Studies (the "Blue 
Book") series. The book won international acclaim for its scholarship, including 
the 1982 Triennial Ciardi Prize of the International Society of Military Law and 
the Law of War. That monumental effort was supported by an exhaustive 
compilation of source materials (which he edited) entided Documents on Prisoners 



Grunawalt xxi 

of War. Published as volume 60 of the "Blue Book" series, Documents remains 
an essential resource for law of war scholars. 

The year 1979 also witnessed publication of the first of a multi-volume set 
edited by Howard recording the proceedings of the 1974-77 Geneva Diplomatic 
Conference which drafted the 1977 Protocol Additional to the Geneva 
Conventions of 12 August 1949, and Relating to the Protection of Victims of 
International Armed Conflicts (Protocol I). Entided Protection of War Victims, 
the fourth and final volume of which was published in 1981, this work was 
described by Ambassador George Aldrich, head of the U.S. Delegation to the 
Conference, as "an invaluable tool in interpreting and applying the new law 
developed by means of the Geneva Protocol." 

The second book authored by Howard was published in 1983. Entided The 
Status of Gibraltar, this work examines the historical background and status of 
the dispute between Great Britain and Spain over that strategically situated 
British Crown Colony, making extensive use of documents not previously 
analyzed in depth. As with all of his writings, Gibraltar reflects close attention to 
thoroughly researched sources and a balanced and honest appraisal of the issues. 

Just three years later (1986), Professor Levie's third book was published. A 
two-volume work entitled The Code of International Armed Conflict, it constitutes 
a comprehensive presentation of the entire law of war, both conventional and 
customary. Presented in the form of a code of that body of law, the book sets 
forth each rule, identifies its source (s) and presents cogent commentary on its 
meaning and application. A superb research tool, The Code of International Armed 
Conflict remains an essential part of any law of war collection. 

Howard next turned his attention to the critically important and intellectually 
challenging arena of non-international armed conflict. In 1987, he edited Tlie 
Law of Non-International Armed Conflict, which complements his earlier work 
Protection of War Victims, and which utilizes the same effective format. Providing 
the negotiating history of the 1977 Protocol Additional to the Geneva 
Conventions of 12 August 1949, and Relating to Non-International Armed 
Conflicts (Protocol II), this volume provides the reader with a clear 
understanding of, and appreciation for the complexities of law and policy 
inherent in the regulation of non-international conflict. 

1988 witnessed the publication of Howard's seventh book. Entided The Law 
of War and Neutrality: A Selective English-Language Bibliography, this work is 
remarkable for both its thoroughness and its organizational clarity. Once again, 
his attention to detail, coupled with his mastery of the subject, enabled Howard 
to produce a volume that no law of war research scholar should be without. 

Professor Levie's long association with the Naval War College and his study 
of the law of naval warfare kindled his interest in the legal aspects of mine warfare 
at sea, a subject that had not previously been comprehensively addressed in the 



xxii Levie on the Law of War 

literature. His book Mine Warfare at Sea, published in 1992, superbly fills that 
gap. Written in non-technical language, this very readable work provides an 
overall study of the military, legal, operational and technical history of mine 
warfare at sea. Rich with illustrations drawn from four hundred years of practice, 
Mine Warfare recounts how naval mines have been employed in warfare, how 
nations have attempted to regulate their use, and how such mines will likely be 
employed in the future. Complete with an exhaustive bibliography and extensive 
index, this book is also a "must have" volume on the law of war research scholar's 
shelf. 

Howard's incomparable book on violations of the law of war was published 
in 1993. Entitled Terrorism in War: The Law of War Crimes, it draws upon 
Howard's extensive experience in war crimes trials and his unequaled expertise 
in all matters pertaining to breaches of the Geneva Conventions and to other 
violations of the law of war. In the view of many scholars and practitioners in 
this field, Terrorism in War is the quintessential treatment of this subject in the 
literature, providing the reader, whether scholar or layman, with a 
comprehensive analysis of law of war crimes issues — past, present and future. 
Presented chronologically, the book examines the early history of war crimes 
and war crimes trials through the Gulf Crisis of 1990-91. It then focuses on 
procedural matters including jurisdiction, asylum and extradition, and trial 
procedures, before turning to the analysis of conventional war crimes, crimes 
against peace and crimes against humanity. The book concludes with an 
examination of the accused, their victims and their defenses. Of particular utility 
for research scholars is the inclusion in the appendices of key provisions of all 
relevant documents, from the Lieber Code of 1863 through the 1977 Additional 
Protocol I. It is in this magnificent work that one sees most convincingly the 
enormous contribution of Howard's scholarship to the articulation and 
enforcement of the law of war. 

In 1995, Howard took on yet another major tasking, the editing of volumes 
7 through 12 of Terrorism, Documents of International and Local Control. For those 
serious readers not familiar with this superb series, I commend it to you. Volume 
12, the last to be edited by Howard, is a veritable well-spring of information 
pertaining to contemporary practice and problems relating to terrorism, from 
the sentencingjudgment of the International Tribunal for the Former Yugoslavia 
in the Erdemovic case to the report of the Secretary of Defense concerning the 
bombing of Khobar Towers. Here again we see Howard's thoroughness and 
objectivity at work. 

Not one to rest on his many laurels, Howard Levie continues in his 
unrelenting quest to advance the cause of respect for the rule of law in armed 
conflict. Indeed, as this volume goes to press, Howard is nearing completion of 
yet another important treatise on the law of war. That book, entitled Capitalist 



Grunawalt xxiii 

and Communist Prisoners of War in Korea, draws on his extensive personal 
experience in the Korean War and its aftermath as a member of the Staff of the 
United Nations and Far East Command and legal advisor to the United Nations 
Command Armistice Delegation, and on his peerless expertise in the law 
applicable to prisoners of war. This eagerly awaited work will add to the 
enormous contribution of this incomparable scholar. 

I would certainly be remiss if I failed to mention what is perhaps the most 
significant achievement of Howard's long and illustrious career — his genius and 
great good fortune in marrying Blanche. From that date to this, Blanche has 
been an integral part of Howard's life work. Indeed, those of us who have had 
the privilege and pleasure of knowing the Levies over the years have come to 
appreciate that Howard is but one-half of an extraordinary team. Sixty three 
years following their exchange of marriage vows, Blanche remains the vivacious 
spirit of this incomparable duo. 

In the end, recounting selected highlights of Howard Levie's illustrious career 
as a lawyer, soldier and scholar does not do justice to either the man or his work. 
To those of us privileged to work with and learn from him, Howard is far more. 
He is the embodiment of knowledge and commitment in all matters pertaining 
to the law of war. Always open and objective, he nonetheless retains the enviable 
perspective of the long view. Indeed, this sense of perspective pervades his 
writing. All too acquainted with the brutal realities of war, Howard is a man of 
compassion — of resolute commitment to the development and enforcement of 
rules of normative behavior that mitigate, as much as possible, the suffering 
which war inevitably entails. Those acquainted with the Levies will surely 
appreciate the enormous influence of Blanche's humanity on Howard's 
profound compassion for the victims of war. Yet, he remains a realist, fully 
appreciative of the equation of military necessity and of the dictates of national 
security during conflict. He understands the plight of the victims of war and the 
hardship of the individual soldier engaged in its execution. The writings 
compiled in this volume reflect Howard's abiding sense of balance, of fairness, 
of reality. 

I will conclude these remarks with an anecdote that, to me, is the essence of 
Howard Levie. Upon completion of a typically erudite lecture on the 1949 
Geneva Conventions and the 1977 Protocols to a class of some thirty-five 
international naval officers attending the Naval War College, Howard was 
approached by an Eastern European officer who appeared to be somewhat 
distressed by what he had heard. That officer commented that he fully endorsed 
all that Howard had said, but was concerned that in the heat of batde he might 
not remember all that he had learned. The officer asked Howard what he should 
do in such a circumstance. Howard replied, "Commander, just do what you 
know is the right thing to do and you will not go wrong." That is also the 



xxiv Levle on the Law of War 

underlying message in all of Howard's writings on the law of war: whether 
national political leader or individual soldier — do what is right and hold 
accountable those that do not. 



I 



The Nature and Scope of the 
Armistice Agreement 

50 American Journal of International Law 880 (1956) 

I. Introduction 

For many centuries the armistice agreement has been the method most 
frequently employed to bring about a cessation of hostilities in international 
conflict, particularly where the opposing belligerents have reached what might 
be termed a stalemate. This practice has not only continued but has probably 
increased, during the present century. 

The first World War ended in an extended series of so-called armistice 

1 
agreements. During the twenty-one years which elapsed before the outbreak 

of the second World War there were really only two such agreements of any 

historical importance: that entered into in Shanghai on May 5, 1932, which 

brought about a cessation of hostilities in the Sino-Japanese conflict of that 

period; and that entered into at Buenos Aires on June 12, 1935, which ended 

hostilities between Bolivia and Paraguay over the Gran Chaco. 

The second World War also ended in an extended series of so-called armistice 

agreements; and in the comparatively short period of time since then, there 

have already been no less than ten major general armistice agreements concluded 

by belligerents. This increased importance in modern practice of the general 

armistice as an instrument leading to the restoration of peace has resulted in it 

having been likened to the preliminaries of peace (which it has, in fact, 

practically superseded), and even to a definitive treaty of peace. Under the 

circumstances, it appears appropriate to review the history and development of 

the general armistice as a major international convention concerned with the 

non-hostile relations of belligerents, as well as to determine its present status 

under international law. 

II. General Discussion 

What is the nature of a general armistice agreement, the war convention 
which has properly been termed "the most important and most frequentiy 
reached agreement between belligerents"? A general armistice is an agreement 



2 Levie on the Law of War 

between belligerents which results in a complete cessation of all hostilities for a 
specified period of time, usually of some considerable duration, or for an 
indeterminate period. It applies to all of the forces of the opposing belligerents, 
wherever they may be located. It may have a political and economic, as well as 
a military, character. 

This definition, while adequate to describe the nature of a general armistice, 
necessarily omits many peripheral but nevertheless important facets of the term 
defined, facets which it is essential should be borne in mind in any searching 
analysis of the problem. What is the legal basis of the general armistice? How 
does it come into being? Does it create a new juridical status between the 
belligerents? These are but a few of the more important of the many questions 
relating to this problem. 

As has already been noted, the armistice is a war convention. By definition a 
convention is an agreement; it is a contract; it is consensual. That this is all true 

of an armistice is fully established by reference to numerous international 

11 12 .13 

conventions, military manuals, and authors of texts of international law. 

Belligerents are free to enter into an armistice or to decline to do so. They are 

free to include in an armistice any provisions which they may desire, unfettered 

1 4 

by either legal restrictions or precedents, guided only by the necessities of war. 
As one author has apdy stated: 

The contractual field for an armistice is completely open. Here again "contracts 
take the place of law as between those who enter into them." 

It follows that there is no fixed rule or custom which prescribes what provisions 

should or should not be included in an armistice agreement. On the other 

hand, there are certain provisions which, as will be seen, are very generally 

included by the parties, not because of any legal compulsion, but rather because 

experience has proven that such provisions are of a nature to facilitate the purpose 

of the armistice and to insure against violations thereof. And whether the 

parties specifically provide therefor or not, an armistice does result in a complete 

cessation of active hostilities; that is, it results in a cease-fire. Without a 

cease-fire there would, by definition, be no armistice. 

Being a contract, it must be negotiated. Because a general armistice results in 

a cessation of all hostilities, and because it may contain political and economic 

as well as military provisions, it has political significance. It may, therefore, be 

made only on behalf of the sovereignty of the state. This sovereignty may be 

expressed by either of two methods: first, the armistice may contain a specific 

provision that it is to become effective only after ratification; or second, the 

representatives of the state designated to negotiate the armistice, and they may 

2 1 
be military or civilian or both, may be provided with full powers. Modern 



Armistice Agreement 3 

practice appears to prefer the latter method. There were no ratifications of the 

so-called Armistice Agreements reached during either World War I or World 

22 
War II. All of the armistice agreements reached under the aegis of the United 

Nations have been negotiated by representatives with full powers. None has 

23 
required ratification. 

While it cannot be disputed that a state has complete freedom in determining 

who will represent it in negotiating an armistice, there have been conflicting 

expressions of opinion as to the advisability of the selection of military personnel 

for this purpose. Gentili did not believe that the task of negotiating an armistice 

should be delegated to the military. He said: "Therefore the leaders in war should 

1-111 24 

handle matters which belong to war and not other matters." On the other 

hand, one modern writer states that "it is clear that, once the decision is made, 

25 
the actual negotiations should be conducted by the military organs." 

It cannot be said that there is any established modern practice in this regard. 
The Renville Truce Agreement (Netherlands-Indonesia) and the India-Pakistan 
Cease-fire Order and Truce x\greement were both negotiated by diplomatic 
representatives. The four Israeli-Arab Armistice Agreements were negotiated by 
the military on behalf of each of the Arab countries and by mixed 
civiHan-military delegations on behalf of Israel. The Korean Armistice 
Agreement was negotiated and signed exclusively by the military on both sides. 
And the three Agreements on the Cessation of Hostilities in Indochina were 
negotiated by both military and diplomatic representatives. As a matter of fact, 
with modern methods of communication, the question is no longer of very great 
importance inasmuch as the decision of the negotiator, whether he be military 
or civilian, will actually be made in each instance pursuant to instructions 
received direcdy from his home capital. Perhaps the best solution would be a 
"mixed team" consisting of members drawn both from the military and from 
the diplomatic corps, the practice followed by Israel in its negotiations with the 
Arab states, and by both sides in the Indo-Chinese negotiations. 

A matter of major legal interest is that of the juridical status which exists during 
the period while an armistice is in effect. Is it war, or peace, or some third status? 
While there has, on occasion, been some rather loose language used with regard 
to this question, it may be stated as a positive rule that an armistice does not 
terminate the state of war existing between the belligerents, either de jure or de 
facto, and that the state of war continues to exist and to control the actions of 
neutrals as well as belligerents. 

As long ago as the days when Greece and Rome were at the zenith of their 
power, it became accepted law that, although the indutiae (armistice or truce) 
resulted in a cessation of hostilities, it did not, as did the foedus (treaty of peace), 

result in a termination of the war. The early writers on international law 

• 30 
concurred in this conclusion. The great majority of contemporary writers 



4 Levie on the Law of War 

31 
likewise do so. Both the American and the British military manuals have 

uniformly taken the position that an armistice is merely a cessation of active 

hostilities and is not to be described as either a temporary or a partial peace. 

The rule stated above has received affirmative judicial approval on a number 

of occasions. Thus, the United States Supreme Court, confronted with the 

question of whether the 1918 Armistice had brought about a state of peace, 

ruled that "complete peace, in a legal sense, had not come to pass by the effect 

33 
of the Armistice and the cessation of hostilities."' Similarly, on November 3, 

1944, the French Court of Cassation stated that "an armistice convention 

concluded between two belligerents constitutes only a provisional suspension 

of hostilities, and cannot itself put an end to the state of war. 

A few years ago an incident occurred in the Security Council of the United 

Nations which has been misconstrued as indicating a rule contrary to that 

discussed immediately above. Subsequent to the execution of the 

Israeli-Egyptian General Armistice Agreement, Egypt continued to maintain its 

"blockade" of the Suez Canal insofar as Israel was concerned. Israel complained 

to the Security Council asserting that the four armistice agreements had, in effect, 

terminated the state of war between all of the belligerent parties. Egypt, on the 

other hand, contended that the state of war continued despite the armistice 

agreements and that the blockade was legal. The Security Council on 

• • • 35 

September 1, 1951, passed a resolution calling upon Egypt to lift its blockage. 

This action of the Security Council has been construed as indicating that a 

general armistice is a kind of de facto termination of war. It is considered more 

likely that the Security Council's action was based upon a desire to bring to an 

end a situation fraught with potential danger to peace than that it was attempting 

to change a long established rule of international law. By now it has surely 

become fairly obvious that the Israeli-Arab General Armistice Agreements did 

37 
not create even a de facto termination of the war between those states. 

One of the most frequent problems to arise with regard to the interpretation 

of a general armistice has been the determination of those acts which are 

permitted and those which are prohibited. There have been two very definite 

schools of thought on this problem. One school, long designated as the one with 

the weight of authority behind it, takes the position that during a general 

armistice a belligerent cannot legally do anything which the enemy would have 

wanted to and could have prevented him from doing but for the armistice. 

The other school, long designated as the one with the weight of reasoning as 

well as the weight of practice behind it, takes the position that during a general 

armistice the belligerents must refrain from doing only those acts which are 

expressly prohibited by it. This dispute is apparendy as old as history, and is 

now of historical significance only. Modern discussions of the subject point 

out the problem of enforcement and the invitation to charge and countercharge 



Armistice Agreement 5 

42 
inherent in what might be termed the classical approach. In recent years the 

belligerents have been prone to spell out with particularity all those specific acts 

43 
which are to be renounced during a general armistice. Whether or not this is 

more conducive to an atmosphere which will lead to a restoration of peace is 

probably debatable, with strong arguments to be made on either side. 

Nevertheless, the modern rule appears to be that belligerents may be presumed 

to have the right to do anything which is not specifically forbidden by the terms 

of the armistice agreement; and, conversely, that the doing of an act not 

specifically prohibited, even though the other side could have prevented it but 

for the agreement on the cessation of hostilities, cannot validly be made the basis 

for a complaint of violation or for the denunciation of the armistice. 

III. Provisions of Armistice Agreements 

Mention has already been made of the fact that the modern general armistice 
may, and frequently does, contain military, political, and economic provisions. 
An analysis of the various provisions of a number of general armistice agreements, 
using as models not only the post- World War II agreements of this category, 
but also a number of older ones, will disclose the direction which the armistice 
is taking in the dynamics of international law, and will permit the drawing of 
certain conclusions. 

Incorporated within the hundreds of armistice agreements which have been 
concluded over the course of centuries it is possible to discover provisions 
covering almost every conceivable topic. Many such provisions are probably no 
longer relevant under conditions of modern warfare; and many were apt only 
because of the situation pertaining to a particular conflict. With the foregoing, 
which are interesting for historical reasons but which have no particular present 
legal significance, it is not necessary to concern oneself. The present-day student 
of this problem will be concerned exclusively with the provisions which 
belligerents have, either consistently over the centuries, or at least in recent times, 
believed it appropriate to incorporate in armistice agreements concluded by 
them. 

In general, what matters should one expect to find included in a typical 
armistice agreement? Probably the most thorough and up-to-date answer to that 

question is contained in The Law of Land Warfare, the new Manual of the United 

46 
States Army. Summarized, the provisions suggested therein relate to: 

(1) Effective date and time; 

(2) Duration; 

(3) Line of demarcation and neutral zone; 

(4) Relations with inhabitants; 

(5) Prohibited acts; 



6 Levie on the Law of War 

(6) Prisoners of war; 

(7) Consultative machinery; 

(8) Miscellaneous politico-military matters. 

Any discussion of the contents of an armistice agreement must logically begin 
with a discussion of the suspension of hostilities. That subject disposed of, one 
may turn to those of the above-enumerated items which are of some particular 
current interest. 

A. Suspension of Hostilities 

As has already been remarked, an armistice per se, with or without a specific 
provision, results in a cessation of hostilities. Nevertheless, only on very rare 
occasions have the parties failed to include such a provision. 

The Truce of Ratisbonne, signed on August 15, 1684, on behalf of Leopold, 

Emperor of the Holy Roman Empire, and Louis XIV, King of France, did not 

specifically suspend hostilities. It contained a provision establishing a truce for 

twenty years from the date of ratification. For whatever significance it may 

have, it should be noted that we find the same parties entering into the Truce 

of Vigevano on October 7, 1696, only twelve years later, and this time with a 
. . . . ... 49 

specific provision for a suspension of hostilities. 

In April, 1814, Napoleon abdicated as Emperor and an armistice was entered 
into between the Allies and the French. While the brother of Louis XVIII had 
come to France as the representative of the King, there was considerable question 
as to the extent of control which he would be able to exercise over Napoleon's 
Grand Army. Accordingly, the armistice provided for a suspension of hostilities 
but only if "the commanding officers of the French armies and fortified places 
shall have signified to the allied troops opposed to them that they have recognized 
the authority of the Lieutenant General of the Kingdom of France." Although 
a somewhat similarly confused political situation existed in Italy in 1943, it was 
apparently considered unnecessary to include such a provision in the Armistice 
Agreement of September 3, 1943, between the United Nations forces and the 
government of Marshal Badoglio which had succeeded Mussolini. 

The Armistice Protocol signed by the Russians and the Japanese at 
Portsmouth on September 1, 1905, contained a clause prohibiting 
bombardment of enemy territory by naval forces, but no other provision with 
regard to the suspension of hostilities. It directed the two governments to order 
their military commanders to put the Protocol into effect. On September 13 an 
agreement was reached by the army commanders in Manchuria which 
specifically provided for the suspension of hostilities effective on September 16.' 
On September 18, a "Naval Protocol of Armistice" was signed by the navy 
commanders which, while it established a boundary line between the two fleets, 



Armistice Agreement 7 

54 
again did not specifically suspend hostilities. And the two army commanders 

in Korea were unable to reach an agreement prior to the exchange of ratifications 

of the peace treaty on September 25. 

On a number of occasions the United Nations has adopted, apparently 

without any reason therefor, terminology new to international law in its actions 

relating to armistice agreements. The Renville Truce Agreement uses the novel 

term "stand-fast and cease-fire."' The India-Pakistan Agreement provides for 

57 
a "cease-fire." The Israeli-Arab General Armistice Agreements adopt the 

procedure of omitting a specific provision for a suspension of hostilities — perhaps 

on the theory that this was unnecessary in view of the "truce" which had 

previously been imposed on the belligerents by the United Nations — and merely 

58 
established "a general armistice between the armed forces of the two Parties." 

The Korean Armistice Agreement reverted to standard procedure, providing 

59 
for "a complete cessation of all hostilities" in Korea. 

B. Effective Date and Time 

It has been stated that 

in armistices time is of the first consideration. The time of commencement and 

the moment of termination should be fixed beyond all possibility of 

60 
misconception. 

In the event that the armistice fails to specify an effective date and time, it is 
assumed that it is intended to become effective immediately upon signing. 
Because of difficulties in assuring the receipt of proper notification by all 
commands, or for other reasons, it has, on occasion, been deemed advisable to 
have the armistice become effective on a later date. For the same reason, the 
suspension of hostilities has on occasion been made effective at different times 
in different areas. In view of the nature of the elaborate communications 
systems with which the modern army is usually equipped, neither of these 
situations should any longer occur. 

The United States has been involved in at least one controversy with regard 
to the effective date of an armistice. The Protocol of Washington (United 
States— Spain) , which was signed on August 12, 1898, provided that 

upon the conclusion and signing of this protocol hostilities between the two 
countries shall be suspended, and notice to that effect shall be given as soon as 

possible by each Government to the commanders of the military and naval 

c 64 

forces. 



8 Levie on the Law of War 

The effective date of the suspension of hostilities was obviously not stated with 
sufficient precision. Spain later contended that the protocol had been effective 
from the date of signature. The United States took the position that this would 
render meaningless the latter part of the provision and that the suspension of 
hostilities had become effective only upon receipt of notification by the military 
and naval commanders in the field. More care in the drafting of the provision 
would have obviated this dispute, which involved the capitulation of Manila. 

The importance of clearly indicating the effective date and time of an armistice 
agreement appears to be a lesson well learned, for we find that the subject is fully 
covered in all of the post- World War II armistice agreements. Continued 
adherence to this practice will be at least a small step in minimizing the difficulties 
between belligerents which inevitably arise during any armistice. 

C. Duration 

Two types of provision with regard to duration are found in armistice 
agreements. Some specify a definite period. Thus, the Armistice of Nikolsburg 
and that of Shimonoseki provided for durations of four weeks and twenty-one 
days, respectively. The Armistice of Malmoe, concluded by the King of Prussia 
and the King of Denmark on August 26, 1848, provided for an armistice of 
seven months with automatic prolongation unless one month's advance notice 
was given by either party. And the agreement reached by the French and the 
Austrians in Vienna on July 13, 1809, provided for an armistice of one month, 
but with fifteen days advance notice of resumption of hostilities. Others 
provide for an indefinite duration or contain no provision whatsoever on this 
subject. Where this is the situation, the armistice remains effective until due 
notice of denunciation has been given by one of the belligerent parties. 

It has been said that "it is customary to stipulate with exactness the period of 
time during which hostilities are suspended." Although, prior to the twentieth 
century, armistice agreements, more frequendy than not, specified an exact 
duration, modern practice seems to be otherwise. No duration is specified in 
any of the major armistice agreements concluded since World War II. Thus, for 
example, the Renville Truce Agreement provides that it shall be considered 
binding unless, in effect, one party terminates it because of violations by the 
other party. The Israeli-Lebanese General Armistice Agreement provides that 
it "shall remain in effect until a peaceful settlement between the Parties is 
achieved." The Korean Armistice Agreement provides that it shall remain in 
effect until superseded by "an appropriate agreement for a peaceful settlement 
at a political level between both sides." Of course it may be argued that these 
two latter agreements are determinate, inasmuch as they remain in effect until 
an event certain. Perhaps so, but it can scarcely be said that there has been any 



Armistice Agreement 9 

stipulation with exactness as to the duration of the armistice under these 
circumstances. The Israeli-Lebanese General Armistice Agreement is seven years 
old and no "peaceful settlement" is in sight. And while the Korean Armistice 
Agreement is only three years old, the "peaceful settlement" mentioned therein 
looks equally remote. 

It has been stated above that where an armistice is of indeterminate duration, 
it remains effective until "due notice" of denunciation has been given. 
Sometimes an armistice specifies the period of advance notice of denunciation 
which is required. Thus, the second Thessaly Armistice entered into by the 

Greeks and the Turks on June 3, 1897, provided for 24 hours' notice of 

73 
resumption of hostilities. More often, it does not. Article 47 of the Declaration 

of Brussels admonished that "proper warning be given to the enemy, in 

74 
accordance with the conditions of the armistice"; and Article 36 of both of 

75 
the Hague Regulations (1899 and 1907) said approximately the same thing. 

The practical value of these provisions is dubious. It is precisely when there 

is no relevant condition in the armistice agreement that resort must be had to 

general international law. In this instance, conventional international law being 

lacking, resort must be had to custom — and custom says that "good faith requires 

that notice be given of the intention to resume hostilities." 

A number of authors have commented on Sherman's ire when the armistice 

which he had concluded with Johnston on April 18, 1865, was disapproved by 

President Johnson and Secretary Stanton, and upon his honor and fairness in 

78 
giving 48 hours' notice of resumption of hostilities to General Johnston. Of 

his ire there can be no doubt. ' Without attempting to detract from General 

Sherman's honor and sense of fairness, it is necessary to point out that the 

armistice itself provided for 48 hours' notice of resumption of hostilities. 

Actually, Sherman even referred to this provision of the armistice agreement in 

81 
giving the notice which it required. 

D. Demarcation Line and Neutral Zone 

A demarcation line between the two belligerent forces, frequently 
accompanied by a neutral zone, has long been a technique employed for the 

purpose of preventing incidents which, even though inadvertent, might lead to 

82 
a resumption of hostilities. The statement that a "neutral zone is actually the 

83 - 
only means there is of preventing violations of the armistice" is probably too 

strong and tends to overevaluate the neutral zone. A neutral zone is 

unquestionably a very great aid in preventing incidents. However, it is definitely 

not a cure-all. 

The last century provides a number of historical examples of the use of the 

demarcation line and the neutral zone in armistice agreements. In the Armistice 



1 Levie on the Law of War 

of Cintra (France— Allies) provision was made for the River Siandre to be the 

line of demarcation between the two armies with Torres Vidras as "no man's 

84 
land.'" The French-Austrian Armistice of Vienna of 1809 plotted a line of 

85 
demarcation from point to point, but did not provide for a neutral zone. " The 

Armistice of Nikolsburg required the Austrians to remain 2 ! /4 miles from a line 

of demarcation which had been previously established, thus creating a neutral 

zone entirely at the expense of the Austrians. And in the Greco-Turkish War 

of 1897 both the Armistice of Epirus and that of Thessaly provided for lines of 

demarcation. 

The post-World War II armistice agreements have, in the main, followed the 

long established tradition. The Renville Truce Agreement provided for both a 

line of demarcation and a demilitarized zone. Like so many other novelties in 

this document, the line of demarcation was designated "the status quo line" — a 

88 • 

term unique to this agreement! The Israeli-Lebanese General Armistice 

Agreement created a demarcation line and provided that only defensive forces 

• • . ,, 89 

would be permitted "in the region" of the line. This rather unusual 

arrangement was probably due to the fact that the demarcation line was the 

international boundary line between Lebanon and Palestine. 

The Korean Armistice Agreement contains a rather elaborate series of 

provisions establishing and regulating both a "Military Demarcation Line" and 

a "Demilitarized Zone." The same may be said of the agreements entered into 

at Geneva on July 20, 1954, between representatives of the 

Commanders-in-Chief of the French Union Forces in Indochina and of the 

91 
People's Army of Viet-Nam. 

It will be noted that the foregoing enumeration does not include the 

India-Pakistan Resolution for a Cease-Fire Order and Truce Agreement. In that 

agreement it was not necessary to create a demarcation line or a neutral zone, 

inasmuch as Pakistan agreed to withdraw her forces from the territory of the 

• 92 
State of Jammu and Kashmir. 

E. Relations with Inhabitants 

A number of different problems arise during an armistice with regard to the 
relations between the belligerents and the local inhabitants. These problems 
include the movement of civilians from the territory controlled by one 
belligerent to that controlled by the other, commercial intercourse between the 
two territories, etc. However, as will be seen, these problems are all interrelated. 

Article 50 of the Declaration of Brussels merely stated that it was within the 

power of the two belligerents "to define in the clauses of the armistice the 

93 

relations which shall exist between the populations." Article 39 of both of the 

Hague Regulations purported to extend the contractual freedom of the parties 



Armistice Agreement 1 1 

by specifically including therein "what communications may be held in the 

theatre of war with the inhabitants and between the inhabitants of one belligerent 

94 • ... 

State and those of the other." Neither of the foregoing provisions included 

Lieber's corollary to the effect that "if nothing is stipulated the intercourse 

remains suspended, as during actual hostilities." Both the Rules of Land 

Warfare and The Law of Land Warfare elaborate somewhat on Lieber, pointing 

out the necessity for a specific provision in the armistice, and then stating: 

Otherwise these relations remain unchanged, each belligerent continuing to 
exercise the same rights as before, including the right to prevent or control all 
intercourse between the inhabitants within his lines and persons within the enemy 
lines. 

It is probably also appropriate to point out here that Article 134 of the 1949 
Geneva Convention Relative to the Protection of Civilian Persons in Time of 

War, directs the belligerents, upon the close of hostilities, "to ensure the return 

• • 97 

of all internees to their last place of residence, or to facilitate their repatriation." 

From the foregoing it is clear that the official point of view is that the parties 
may include provisions concerning civilians in the armistice agreement, but that, 
failing such provisions, the condition of civilians remains unchanged from that 
existing during hostilities. The writers of texts on the subject are not quite so 
unanimous. The majority concur with the doctrines set forth above. At least 
one author believes that "liberty of movement [for the civilian population] is 
presumed if the armistice is general and is concluded for a sufficiendy long period 
of time." No justification has been found for that statement. Another states 
that it may be desirable to provide in the armistice for the relaxation of the 
prohibitions imposed on civilians — but he does not even hint that there is any 
presumption in the absence of specific provision. 

What has been the actual practice in this regard? Probably the most unusual 
suggestion was that made to the Estates General in 1608 by the French and 
British Ambassadors when they were attempting to use their good offices to 
terminate the hostilities in which the United Provinces were then engaged with 
Spain. They proposed armistice provisions which would not only have permitted 
commerce and communications between the territories controlled by the two 

belligerents, but also included what could only be characterized as a 

• 101 

most-favored-nation clause! This proposal, perhaps understandably, was not 

included in the Truce of Antwerp, which was eventually reached by the parties 

in 1609. 102 

The Armistice of Ulm, which was concluded on March 14, 1647, between 

Louis XIV and his allies on one side and the Elector Maximilian and his allies 

on the other side, authorized a complete resumption of commerce between the 

citizens of the two sides except for certain specified items such as saltpeter, 



1 2 Levie on the Law of War 

103 
powder, arms, etc. The Truce of Ratisbonne also reestablished commerce 

104 
between the two belligerents. Then, two and a half-centuries later, we find 

a somewhat similar provision in the Renville Truce Agreement, where Article 6 

specifies that "trade and intercourse between all areas should be permitted as far 

as possible. 

While the Korean Armistice Agreement contains no provision with regard 

to commercial intercourse, it does contain elaborate provisions for the 

movement of civilians who were in territory controlled by one belligerent and 

who were normally resident in territory controlled by the other. The 

Vietnamese Agreement went even a step further, permitting any civilian to cross 

over to the territory controlled by the other belligerent if he desired to go there 

to live, the only restriction being that the move had to be made during the 

107 
period allocated for troop withdrawals. The latter Agreement also provides 

108 
for the "liberation and repatriation" of all civilian internees held by either side. 

This bears some resemblance to the provision of the Geneva Civilian 

Convention to which reference has already been made. 

F. Prisoners of War 

The problem of prisoners of war has received extremely varied treatment in 
armistice agreements over the centuries and still remains one which can be most 
difficult of solution. 

The Armistice of Ulm provided for the release of all prisoners of war by both 
sides without the payment of ransom, this last proviso probably having been the 

most important feature of that agreement as far as the belligerents themselves 

110 
were concerned. Surprisingly enough, we find that the parties still considered 

it essential to specify a waiver of ransom in the armistice agreement concluded 

in 1814 after Napoleon's first downfall. However, the importance of the latter 

armistice from our point of view is twofold: It provided that all prisoners of war 

should be "immediately sent back to their respective countries"; and it provided 

for the appointment of commissioners by each side "in order to carry this general 

111 
liberation into effect." In the Armistice of Malmoe it was agreed that all 

prisoners of war would be "set free"; and a supplementary agreement stated 

112 
where they would be taken for "delivery to their officers." 

Article 20 of both of the Hague Regulations provided for the repatriation of 

prisoners of war only after "the conclusion of peace." As we have seen, this 

phrase is not applicable to an armistice. The 1929 Geneva Prisoner of War 

Convention changed this considerably, providing that an armistice must, in 

principle, contain stipulations regarding the repatriation of prisoners of war. 

It further provided that, if for some reason, the parties had been unable to include 

such a provision in their armistice, they would conclude a separate agreement 



Armistice Agreement 13 

on the subject as soon as possible and repatriate the prisoners of war with the 
least possible delay. The 1949 Geneva Prisoner of War Convention went still a 
step further, providing that prisoners of war should be "released and repatriated 
without delay after the cessation of active hostilities." and providing further that, 
failing such a provision in the armistice, each Detaining Power must establish 
and execute without delay a unilateral plan of repatriation. In view of the 
foregoing, and because of the experience in Korea, The Law of Land Warfare, 
unlike Lieber's Instructions and the Rules of Land Warfare, states that "if it is 
desired that prisoners of war and civilian internees should be released or 
exchanged, specific provisions in this regard should be made.""" 

Prior to the Diplomatic Conference which drafted the Conventions in 
Geneva in 1949 most writers on the subject took the position that the final 
answer to the question of the return of prisoners of war was for the treaty of 
peace, not for the armistice.*" They reasoned that to act otherwise would be 
to give an unwarranted advantage to the side which had lost the greater number 
of soldiers to the enemy and a corresponding disadvantage to the side which had 
been successful in capturing the larger number of prisoners of war. It was 
suggested that it would be appropriate to reach a separate agreement, after the 
armistice had been signed, under which prisoners would be exchanged in equal 
numbers and corresponding grades, thus avoiding any change in the relative 
r : i::ions of the belligerents. This is the procedure normally followed in cartels 
for the exchange of prisoners of war/* While there is much to be said for this 
position, it is not fully supported by history and. in the light of the quoted 
provisions of the 1949 Geneva Convention, it is not in conformity with the 
requirements of an international convention which has been so widelv accepted 
as already to be considered as constituting universal international law. This 
is not to say that the basic reason for the theory expressed above is not a valid 
one. \^ nen pnsoners of war are held by the two belligerent sides in such 
disproportionate numbers as was the case in Korea, there is no question but that 
total release and repatnation considerably changes the balance between the two 
sides, even where there is a provision, as there is in the Korean Armistice 
Agreement, against the employment in subsequent acts of war of pnsoners of 
war released and repatnated pursuant to an armistice agreement. 

The Renville Truce Agreement (which, it will be recalled, was signed on 
January 17, 1948, pnor to the drafting of the 1949 Geneva Convention and 
pnor even to the Stockholm Conference where the working draft of the 
subsequent pnsoner of war convention was prepared) contains the following 
significant provision: 

To accept the pnnciple of the release of pnsoners by each party and to 
commence discussions with a view of the most rapid and convenient 



1 4 Levie on the Law of War 

implementation thereof, the release in principle to be without regard to the 

122 
number of prisoners held by either party. 

The Israeli-Lebanese General Armistice Agreement provided for an 

123 
immediate exchange of all prisoners of war. ' The provisions of the Korean 

Armistice Agreement with regard to prisoners of war are too well known to 

require repetition here. Article 21 of the Agreement for the Cessation of 

Hostilities in Viet-Nam provided generally for the "liberation and repatriation 

of all prisoners of war." In elaborating on that provision the agreement states 

that prisoners of war will be "surrendered" to the other side — which would 

seem to indicate acceptance of the principle of "forcible repatriation." However, 

the agreement further provides that the side to which they have been surrendered 

will assist them in proceeding to the zone of their choice — which would seem 

to indicate a right of self-determination by the individual. It is extremely doubtful 

that any of these unfortunates were among the horde of refugees who moved 

1 96 

from the Communist to the non-Communist zone. 

The omission of the India-Pakistan Cease-Fire Order and Truce Agreement 
from the above discussion was not inadvertent. For some reason the United 
Nations Commission resolution which became the Agreement made no 
mention of this subject; and apparently neither of the parties ever suggested that 
it be included. 

G. Consultative Machinery 

Provisions in an armistice agreement for the establishment of commissions 
with various functions have a long history. Under the circumstances, it is 
somewhat strange to find that the subject had not been mentioned in the 
literature on the subject prior to the inclusion of a provision with regard thereto 
in The Law of Land Warfare. That provision reads as follows: 

Consultative machinery. It is generally desirable to provide for the establishment 
of a commission, composed of representatives of the opposing forces, to supervise 
the implementation of the armistice agreement. Additional commissions, 

composed of representatives of the belligerents or of neutral powers or both, may 

127 
be constituted to deal with such matters as the repatriation of prisoners of war. 

The armistice proposed by the ambassadors of France and Great Britain in 

128 
1608 has already been mentioned in another connection. 4 That document 

also contained a provision to the effect that in the event the parties were unable 

to agree concerning the continued occupation of certain villages and hamlets, 

some "notable persons" would be selected to decide the question. This provision 



Armistice Agreement 15 

was among those which the parties omitted from the Truce of Antwerp. 
However, the Truce of Ratisbonne established a commission to delimit frontiers 

so that in the future there may be no dispute to the prejudice of the truce herein 
agree upon. The said Commissioners shall work together to the end that if either 
party fails to make the promised restitutions, or to comply with any provision of 
this agreement, it will be entirely his own act. 

Similarly, the 1809 Vienna agreement provided for commissioners to be 
named by both sides for the purpose of supervising the execution of the 
agreement. And the Finnish-Russian Armistice of 1940 called for special 
representatives of the two sides to decide problems arising in the implementation 
of the agreement. 

All of the post- World War II armistice agreements establish commissions of 
one type or another for the purpose of either implementing or supervising the 
implementation of various provisions of the agreements. Thus, the Renville 
Truce Agreement made use of the Committee of Good Offices created by the 

United Nations and the Committee's military assistants for the investigation of 

132 
incidents, supervision of the withdrawal of troops, etc. The India-Pakistan 

133 
Agreement availed itself of the services of the United Nations Commission. 

The Israeli-Lebanese Agreement created a Mixed Armistice Commission and 

also provided for the use of the personnel of the United Nations Truce 

Supervision Organization. The Korean Armistice Agreement created a 

variety of organs, including a Military Armistice Commission, a Neutral Nations 

Supervisory Commission, a Committee for the Repatriation of Prisoners ofWar, 

Joint Red Cross Teams, a Committee for Assisting the Return of Displaced 

.... 135 
Civilians, and a Neutral Nations Repatriation Commission. Similarly, the 

Viet-Nam Agreement created a Joint Commission and an International 

r^ • • 136 

Commission. 

It is believed that on the basis of the foregoing consistent experience of recent 
years it may be assumed that the device of commissions made up of members 
of the belligerent forces and commissions made up of representatives of neutral 
nations, to which is assigned the mission of implementing and of supervising the 
implementation of the provisions of an armistice agreement, has become an 
accepted feature of such agreements. 

H. Political 

It has already been pointed out that one of the characteristics of an armistice 
is that it may contain political and economic, as well as military, clauses. " The 
Law of Land Warfare enumerates a number of categories of such clauses which 
may be contained in an armistice, including disposition of aircraft and shipping; 



1 6 Levie on the Law of War 

co-operation in the punishment of war crimes; restitution of captured or looted 
property; shipping, communications facilities and public utilities; civil 

administration; displaced persons; and the dissolution of organizations which 

138 
may subvert public order. * It is obvious that a number of these subjects would 

only be appropriate in an armistice such as most of those which were concluded 

during or at the end of the two world wars where the victors were dictating 

terms to the vanquished. Some, such as those relating to displaced persons, 

movement of civilians, commercial intercourse, etc., have already been 

discussed. Generally speaking, it may be stated that the scope of this type of 

provision is limited only by the ability of the belligerents to reach agreement 

with regard thereto. Numerous examples of such provisions may be found in 

the armistice agreements of the past decade which we have been examining 

u 139 

herein. 

I. Violations 

The question of denunciations has already been discussed in connection with 
armistice agreements of indefinite duration. Now it is appropriate to examine 
the problem of violations of an armistice agreement and denunciations in 
connection therewith. 

In his Instructions, Lieber stated that "if either party violates any express 
condition, the armistice may be declared null and void by the other." Article 
51 of the Declaration of Brussels also included a statement to the effect that a 

violation of an armistice gave the other party the right to terminate it ("le 

142 
denoncer"). It will be noted that under either of these rules a belligerent had 

the right to denounce an armistice for a violation of even a minor condition. 

An attempt was made to remedy this situation by Article 40 of both of the Hague 

Regulations which authorized a denunciation for a "serious violation," with the 

additional proviso that in cases of "urgency" the violation might warrant the 

recommencing of hostilities immediately. Clearly, the failure to define the 

term "serious violation" and the indefiniteness of the term "urgency" left a great 

deal to the discretion of the aggrieved party. After analyzing the applicable 

international conventions and the writers on the subject, one eminent author 

arrives at this conclusion: 

. . . Three rules may be formulated from this — (1) violations which are not serious 
do not even give a right to denounce an armistice; (2) serious violations empower 
the other party to denounce the armistice, but not, as a rule, to recommence 
hostilities at once without giving notice; (3) only in case of urgency is a party 
justified in recommencing hostilities without notice. 



Armistice Agreement 17 

Parties negotiating armistice agreements have apparently been loathe to 
include any reference therein with regard to the possibility of denunciation for 
violation, perhaps because they have preferred to rely on the rather vague rule 

1 46 

of international law. It is suggested that in these days of extremely detailed 
agreements it might be well to consider the advisability of specifying in the 
agreement which of its provisions are considered by the parties to be of such 
importance that a violation would be considered either "serious" or "urgent." 
One of the important problems with regard to violations is that of the violation 
of a provision of an armistice by an individual acting independently. Grotius 

stated that "private acts do not break a truce unless in addition there is a public 

147 
act, that is, through command or approval. This is the basic tenor of Article 

52 of the Declaration of Brussels and Article 41 of both of the Hague 

Regulations, all of which, in substance, provide that a violation by a private act 

only entitles the aggrieved side to demand that the individual offender be 

• • 148 

punished and, in an appropriate case, to demand compensation for damages. 

The Rules of Land Warfare defined the term "private individuals" as 
excluding members of the armed forces. The Law of Land Warfare reverses 
that position, stating that in the sense of Article 41 of the 1907 Hague 
Regulations a private individual is any person, including a member of the armed 
forces, who acts on his own responsibility. *"" It is believed that the Hague 
Regulation intended, like Grotius, to distinguish between official and unofficial 
acts, and that the definition appearing in the later manual is fully consonant with 
that distinction! The Law of Land Warfare states further that violations by 
individuals do not justify denunciation unless they are proved to have been 
committed with the knowledge and consent of their government or 
commander — and that consent may be inferred from a persistent failure to punish 
the offenders. 

As far back as the Armistice of Ulm in 1647 we find a provision to the effect 

that officers of either side who violated any provision of the armistice agreement 

152 
would be severely punished. Paragraph 13e of the Korean Armistice 

Agreement requires the commanders of the two sides to "insure that personnel 

of their respective commands who violate any of the provisions of this Armistice 

Agreement are adequately punished"; and Article 22 of the Viet-Nam 

Agreement is identical, except for minor differences which probably resulted 

during the course of translating from English to French and then back into 

• 153 i i 

English. It can logically be assumed that if the parties provide for the 

punishment of individual violators, they do not contemplate that such violations 

constitute a basis for denunciation. 

The emergence of the guerrilla or partisan as a potent force in modern warfare 

has emphasized this problem. Irregular forces are frequently difficult to control; 

but it is not unusual to find them specifically included, with the regular forces, 



1 8 Levie on the Law of War 

within the restrictions contained in the armistice. While this procedure is 
obviously appropriate, their frequent disregard of the orders of the commander 
of the organized military forces, who is responsible for insuring compliance with 
the provisions of the armistice, can become an acute problem insofar as violations 
of the armistice are concerned. 

J. Naval 

Authorities writing on the war conventions have, with rare exception, 
devoted little more than a sentence or two to the subject of the effect of a general 
armistice on naval warfare. ' ' They are, however, practically unanimous with 
regard to the few rules which they do enunciate. 

Naturally, a general armistice would impliedly include a prohibition against 
a naval bombardment or a naval battle, inasmuch as every general armistice 
includes a complete suspension of active hostilities. However, the problem is 
more difficult when the question involved is the maintenance of a naval blockade 
with its concomitant factors such as the right of visit and search, control over 
neutral vessels, seizure of contraband, taking of prizes, etc. 

One of the more recent works on this subject states: 

. . . During a general armistice, belligerents probably also have the right to capture 
vessels belonging to the enemy and to stop and visit neutral ships as well as to 
prevent them from breaking a blockade and from carrying contraband, unless 

otherwise agreed upon. The question is not, however, settled and the taking of 

157 
prize in particular may be considered as a hostile act. 

As a practical matter, it is difficult to see how a belligerent who continues the 
maintenance of a blockade during an armistice can avoid committing hostile 
acts. However, most writers are far more positive than the above quotation 
would indicate concerning the right of a belligerent to continue during a general 

armistice a naval blockade which had been previously established and concerning 

158 
which the armistice agreement makes no provision. There is some indication 

that modern thinking in this direction is premised on the equally modern 

doctrine which permits a naval blockade even in time of peace — the so-called 

159 ... . 

"pacific blockade." The limitation with regard to prizes noted above is 

undoubtedly based upon the statement made by one writer to the effect that 

such an act "is irreconcilable with a state of suspension of hostilities." It is 

apparent that the failure, in an appropriate case, to include within an armistice 

a clear provision with regard to naval blockade, and naval warfare generally, can 

be the cause of serious difficulties and, perhaps, even of the resumption of 

hostilities. Let us review some of the armistice agreements in which an 



Armistice Agreement 19 

attempt has been made to cover the subject and weigh the sufficiency or 
insufficiency of the provisions drafted for that purpose. 

The Truce of Antwerp (Spain-United Provinces) stated that "all acts of 

1 zro 

hostility of all nature on sea and on land shall cease." Such a clause would 

prohibit a pitched battle at sea or a naval bombardment of an enemy shore — but 

would it prohibit a blockade? The Armistice of Paris which followed Napoleon's 

1 6^ 
abdication in 1814 was more specific. It provided that the blockade of France 

would be lifted and that all prizes taken after various dates (which allowed for 

the time necessary for the news to reach different areas) would be restored. No 

difficulties should arise under such an armistice; nor under the somewhat similar 

provisions of the Armistice of Malmoe, which even went so far as to require 

the return of prizes legitimately taken and to provide for indemnification if prizes 

1 64 
and their cargoes could not be returned in kind. 

The Armistice of Versailles of 1871 (France-Germany) created a naval line 
of demarcation and provided for the restoration of all captures made after the 
conclusion of the armistice and before its notification. Again, this would seem 
to meet the requirements of precision and completeness essential to prevent 
disputes. 

The Armistice of Shimonoseki (Japan-China) adopted the opposite approach, 
specifically authorizing the seizure of any military sea movements. While this 
is, of course, entirely within the power of the parties, some act pursuant thereto 
may cause such a public reaction as to practically compel a government to resume 
hostilities — and, also, a government which is looking for an excuse to do so can 
avail itself of an incident thereunder as a basis for the resumption of hostilities. 

Neither the two original armistice agreements entered into on May 19, 1897 
(Epirus), and May 20, 1897 (Thessaly), in the Greco-Turkish War of that period, 
nor the amended agreements reached on June 3, contained any provisions 

1 67 

relating to the naval situation. On June 4 a supplementary agreement was 
concluded which lifted the Greek blockade, but prohibited Turkey from 
reinforcing her armies in Greece or bringing in any munitions, limiting her to 
revictualing her troops twice a week through designated Greek ports. These, 
and certain other naval provisions of the supplementary agreement were so 
indefinite as to be calculated to encourage disputes — which they did. 

It has already been noted that the Protocol of Portsmouth (Russia-Japan) 
prohibited bombardment of enemy territory by naval forces and that the 
subsequent "Naval Protocol of Armistice" established a boundary line between 

1 6S 

the two fleets. ' The Protocol of Portsmouth also provided that "maritime 
captures will not be suspended by the armistice." It is to be assumed that the 
Japanese were following the precedent which they had established in the 
Armistice of Shimonoseki. 



20 Levie on the Law of War 

The early post- World War II armistice agreements tended to follow the 
irregular pattern indicated above. The Renville Truce Agreement contains no 

reference to naval warfare or the sea — a strange situation for an armistice relating 

169 
to an island area. The Israeli-Lebanese General Armistice Agreement 

provided that "a general armistice between the armed forces of the two 

parties — land, sea and air — is hereby established" and that "no element of the 

land, sea or air military or para-military forces of either Party . . . shall commit 

170 
any warlike or hostile acts." We have already seen how identical provisions 

have caused grave disputes between Israel and Egypt with regard to their effect 

on Egypt's naval blockade. 

In the Korean Armistice Agreement the required precision and completeness 

on this subject were almost reached. Paragraph 12 of that Agreement called for 

a complete cessation of all hostilities, including naval hostilities; and paragraph 

15 provides: 

This Armistice Agreement shall apply to all opposing naval forces, which naval 
forces shall respect the waters contiguous to the Demilitarized Zone and to the 

land area of Korea under the military control of the opposing side, and shall not 

172 
engage in blockade of any kind of Korea. 

This is probably one of the most complete naval provisions ever included in an 
armistice agreement. However, the general descriptive statement concerning 
this armistice is qualified in view of the fact that in negotiating it an attempt to 
reach an agreement on the extent of the territorial waters was unsuccessful 
because the United Nations Command proposed the traditional three-mile limit, 
the Communists insisted on the twelve-mile limit, and the Republic of Korea 
had established the arbitrary "Rhee Line" which extends anywhere from 60 to 
200 miles from shore. According to unofficial accounts the United Nations 
Command has voluntarily imposed a twelve-mile limit on its personnel in order 
to avoid incidents. However, this has not been entirely successful. 

Finally, the Agreement on the Cessation of Hostilities in Viet-Nam is almost, 
though not quite, as complete as the Korean Armistice Agreement. Article 24 
provides that the agreement applies to all of the armed forces of either party and 
states that such armed forces "shall commit no act and undertake no operation 
against the other party and shall not engage in blockade of any kind in 
Viet-Nam." It also defines the territory of a party as including "territorial 
waters." France supports the three-mile definition of territorial waters and it is 
to be assumed that the state of Viet-Nam does likewise. It is equally to be assumed 
that the Viet-Minh will subscribe to the twelve-mile limit of territorial waters 
supported by the U.S.S.R. Accordingly, here, too, there is a possibility of 
dispute. 



Armistice Agreement 21 

The foregoing discussion has, it is believed, indicated the necessity of 
including in an armistice agreement specific and precise provisions with regard 
to naval warfare, blockades, etc. It should also have indicated that progress in 
the right direction has been made in recent years and that care on the part of 
the negotiators of future armistice agreements can quickly and simply eliminate 
the naval problem as a source of irritation during the often uneasy period of 
armistice. 

IV. Conclusion 

The general armistice is a living, dynamic war convention which, despite 
centuries of use, is still continuing in each decade to expand its scope and to 
increase the importance of its position among the agreements concerning the 
non-hostile relations of belligerents. The elaborate armistice agreements of 
recent years have, in effect, rendered the preliminaries of peace obsolete. It is 
not inconceivable that the formal treaty of peace will suffer the same fate and 
that wars will one day end at the armistice table. 

Notes 

1. All of these agreements may be found in Maurice, The Armistices of 1918, Appendices (London, 
1943). They are referred to in the text as "so-called armistice agreements" because each one was actually what 
one author has called a "capitulatory armistice, in which the victor imposes upon the vanquished conditions 
which are normally reserved for the treaty of peace." Burgos, Nociones de Derecho de Guerra 144 (Madrid, 
1955). 

2. U. S. Foreign Relations, Japan: 1931-1941 (Washington, 1943), Vol. I, p. 217. 

3. U. S. Foreign Relations, The American Republics: 1935 (Washington, 1953), Vol. IV, p. 73. This 
was termed a "Peace Protocol" and, in many respects, went beyond the normal scope of even a modern 
armistice. Neither of these two armistice agreements had any particular significance in the development of the 
general armistice as an important war convention. 

4. See comment in note 1 above. These agreements may be found in 39 A.J.I.L. Supp. (1945) 88 
(Rumania); 93 (Bulgaria); and 97 (Hungary); 40 ibid. 1 (1946) (two with Italy). A number of other such 
agreements were entered into during the course of the war (Finland— U.S. S.R., 34 ibid 127 (1940); 
France- Germany, 34 ibid 173 (1940); France-Italy, 34 ibid. 178 (1940), etc.). The surrenders of Germany on 
May 7, 1945 (Exec. Agr. Ser., No. 502), and ofjapan on Sept. 2, 1945 (Exec. Agr. Ser., No. 493) do not fall 
within this category. See Zemanek, "Unconditional Surrender and International Law," in 26 The Annual, 
Journal of the A. A. A. 29 (1956). 

5. The Renville Truce Agreement (Netherlands-Indonesia), U.N. Doc. S/649, Jan. 17, 1948; 
Resolution for a Cease-fire Order and Truce Agreement (India-Pakistan), U.N. Doc. S/995, Sept. 13, 1948; 
the four Israeli-Arab General Armistice Agreements: U.N. Doc. S/1264/Rev. 1, Feb. 23, 1949 (Egypt); U.N. 
Doc. S/1296/Rev. 1, March 23, 1949 (Lebanon); U.N. Doc. S/1302/Rev. 1, April 3, 1949 Qordan); and 
U.N. Doc. S/1353/Rev. 1, July 20, 1949 (Syria); the Korean Armistice Agreement, U.N. Doc. S/3079, 
Aug. 7, 1953; and the three Agreements on the Cessation of Hostilities in Indochina: IC/42/Rev. 2, July 20, 
1954 (Viet-Nam); IC/51/Rev. 1, July 20, 1954 (Laos): and IC/52, July 21, 1954 (Cambodia). The Korean 
Armistice Agreement may also be found in 47 A.J.I.L. Supp. 186 (1953), and the three Indochinese agreements 
in Report on Indochina, U. S. Senate Committee on Foreign Relations, 83d Cong., 2d Sess., 1954, Committee 
Print, pp. 16—41. 

6. Rosenne, Israel's Armistice Agreements with the Arab States 27 (Tel Aviv, 1951); Zemanek, be. cit. 
30. 

7. Phleger, Proceedings of Annual Meeting of the American Society of International Law, 1955, p. 98; 
Sibert, "L'armistice dans le droit des gens," in 40 Revue generale de droit international public 714 (1933). 



22 Levie on the Law of War 

8. While any review of the historical development of the general armistice will necessitate some 
discussion, however limited, of the general armistice agreement over the centuries, emphasis will be placed 
on those of the last decade. 

9. Monaco, "Les conventions entre belligerents," in 75 Recueil des Cours de l'Academie de Droit 
International de La Haye 323 (1949, II). 

10. We are not here concerned with the local, or partial, armistice, the agreement between belligerents 
which has only a military character and which results only in a temporary armistice of limited scope. All 
references in the text to an "armistice" refer to a general armistice agreement. 

11. Art. 50, Declaration of Brussels of 1874, Recueil general des lois et coutumes de la guerre (Brussels, 
1943), p. 595; Art. 36, Regulations respecting the Laws and Customs of War on Land, annexed to Hague 
Convention No. II, July 29, 1899 (32 Stat. 1811, 2 Malloy, Treaties 2042); Art. 36, Regulations respecting 
the Laws and Customs of War on Land, annexed to Hague Convention No. IV, Oct. 18, 1907 (36 Stat. 2277; 
Malloy, op. cit. 2269). 

12. Par. 253, Rules of Land Warfare, U. S. Army, Basic Field Manual 27-10 (Washington, 1940); par. 
479, The Law of Land Warfare, U.S. Army, Basic Field Manual 27-10 (The Law of Land Warfare superseded 
the Rules of Land Warfare in July 1956); pars. 256, 258, and 270, British Army Manual of Military Law, 1929, 
Amendments No. 12 (1936), Ch. XIV, The Laws and Usages ofWar on Land; pars. 256, 258, and 270, British 
Army Manual of Military Law, 1951, Draft Section XIV, The Laws of War on Land (when published, The 
Laws of War on Land will supersede The Laws and Usages of War on Land). 

13. Basdevant, Cours de droit international public 176 (Paris, 1946); Calvo, Le droit international, Vol. 
rV, #2436 (5th ed., Paris, 1896); Clunet, "Suspension d'armes, armistice, preliminaires de paix," in 46 Journal 
du droit international prive 173 (1919); Fauchille, Traite de droit international public, Vol. II, p. 326 (8th ed. 
by Bonfils, Paris, 1921); Phillipson, Termination of War and Treaties of Peace 74 (New York, 1916); Robert, 
Des effets de l'armistice general 28 (Paris, 1906); Sibert, loc. cit. 662. 

14. Calvo, op. cit. But see Art. 75 of the 1929 Geneva Convention relative to the Treatment of Prisoners 
of War (47 Stat. 2021; Treaty Series, No. 846; 4 Malloy, Treaties 5224). 

15. Clunet, loc. cit. 174. 

16. Fauchille, op. cit. 326; Robert, op. cit.; Sibert, loc. cit. 685. 

17. The more important provisions of the "usual" armistice agreement, if such there be, are discussed 
in detail in Part III hereof. 

18. Art. 1 36, Lieber, Instructions for the Government of Armies of the United States in the Field (General 
Orders No. 100, April 24, 1863); Politis, "La guerre grecoturque," in 5 Revue de droit international public 
116, 135 (1898); Spaight, War Rights on Land 238 (London, 1911). 

19. Bernard, L'armistice dans les guerres internationales 53 (Geneva, 1947); Calvo, op. cit. #2437; 
Castren, The Present Law of War and Neutrality 129 (Helsinki 1954); Halleck, International Law Vol. II, 
p. 312 (3d ed. by Baker, London, 1893); Kluber, Droit des gens moderne de l'Europe # 277 (2d Ott ed. in 
French, Paris, 1874); Sibert, loc. cit. 669; Vattel, The Law of Nations, iii, XVI, 237 (Text of 1758, Classics of 
International Law, Washington 1916). Vattel states that "the conclusion of a general armistice is a matter of 
such importance that the sovereign is always presumed to have reserved it to himself." This undoubtedly refers 
to ratification, rather than negotiation. One of the few armistice agreements actually signed by sovereigns 
personally in modern times was that of Villafranca, which was signed by the Emperors Napoleon III of France 
and Francis Joseph of Austria on July 11, 1859. 

20. Lawrence, The Principles of International Law 565 (6th ed., New York, 1915), but see the 7th ed., 
1927, p. 556; 2 Oppenheim, International Law 550 (7th ed. by Lauterpacht, London, 1952). While par. 259 
of the Rules of Land Warfare stated categorically that a general armistice is always subject to ratification, par. 
483 of The Law of Land Warfare states that "if an armistice contains political terms, it must be made under 
authorization from the governments concerned or subject to approval by them." 

21. Clunet, loc. cit. 173; Fauchille, op. cit. 326; Wheaton, International Law 222 (7th ed. by Keith, 
London, 1944). Each of the four Israeli-Arab General Armistice Agreements (note 5 above) states in the 
preamble that the Parties have "appointed representatives empowered to negotiate and conclude an Armistice 
Agreement." 

22. Notes 1 and 4 above. However, the Protocol of Buenos Aires (note 3 above) suspending the Gran 
Chaco hostilities did require ratification. This was one of its numerous variations from the usual armistice of 
modern times. 

23. The four Israeli-Arab General Armistice Agreements specifically provided that they were not subject 
to ratification. The others were completely silent on the subject. 

24. De Jure Belli, h, X, 292 (Text of 1612, Classics of International Law, Oxford, 1933). This was 
apparently the feeling of at least a part of the British press during the Korean negotiations. See Frankenstein, 
L'Organisation des Nations Unies devant de Conflit Coreen 323 (Paris, 1952). 



Armistice Agreement 23 

25. Monaco, he. cit. 326. In discussing the preparations for the Armistice of Rethonde which brought 
World War I hostilities to an end on November 11, 1918, Maurice (op. cit. 34) makes the following amusing 
comment: "This latest American note did much to clear the air, but it did not entirely satisfy Marshal Foch, 
and there followed some interesting correspondence between him and his Government on the respective 
responsibility of statesmen and soldiers in making terms of armistice." 

26. Note 5 above. It is probable that the Arab states did not use diplomatic representatives because of 
their refusal to take any action which might, even remotely, imply recognition of the existence dejure of the 
state of Israel. 

27. Of course, this was not the case prior to the invention of wireless telegraphy. In August, 1808, Lt. 
General Sir Arthur Wellesley (later Lord Wellington) was successful in several engagements with the French 
in Portugal. The French Commander then approached Sir Arthur and his superiors with a request for an 
armistice. Agreement on an armistice extremely favorable to the French was reached at Cintra on Aug. 22, 
1808. Later, a "Definitive Convention for the Evacuation of Portugal by the French Army" was agreed upon. 
"Violent public clamour" ensued when the news reached England, where on the facts known, no justification 
could be perceived for having entered into a truly consensual agreement with what appeared to have been a 
defeated foe. As a result, Sir Arthur and his two superiors were subsequently compelled to face a Board of 
Enquiry. Stockdale, The Proceedings on the Enquiry into the Armistice and Convention of Cintra (London, 
1809). 

28. Oppenheim (op. cit. 546) states that during a general armistice "the condition of war remains between 
the belligerents themselves, and between the belligerents and neutrals, on all points beyond the mere cessation 
of hostilities." And in his International Law Codified (Trans, of 5th Ital. ed. by Borchard, New York, 1918), 
note, #1775, Fiore goes even further, cautioning that "both in the relations of public international law and 
in those of international law, during an armistice, however long protracted, the law of war, not the law of 
peace, must be applied." 

29. 2 Phillipson, The International Law and Customs of Ancient Greece and Rome 287, 289-290 
(London, 1911). 

30. Gentili, op. cit. ii, XII, 302-303; Grotius, Dejure Belli ac Pads iii, XXI, I-II (Text of 1646, Classics 
of International Law, Oxford, 1925); Pufendorf, Of the Law of Nature and Nations viii, VII, 3 (Text of 1688, 
Classics of International Law, Oxford, 1934). 

31. Benton, International Law and Diplomacy of the Spanish-American War 226 (Baltimore, 1908); 
Calvo, op. cit. #2339; Clunet, he. cit. 72; Fenwick, International Law 580 (3d ed., New York, 1952); McNair, 
Legal Effects of War 5 (Cambridge, 1948); Sibert, he. cit. 658; Spaight, op. cit. 245; Zemanek, he. cit. 31. 

32. Lieber, op. cit. Art. 142; par. 253, Rules of Land Warfare; par. 479, The Law of Land Warfare; par. 
266, Laws and Usages of War on Land; par. 266, Laws of War on Land (note 12 above). 

33. Kahn v. Anderson, Warden, 255 U.S. 1, 9 (1921). 

34. In re Suarez, Annual Digest of Public International Law Cases, 1943-1945 (ed. by Lauterpacht, 
London, 1949), p. 412. Suarez, a French newspaperman, was charged with "communicating with the enemy" 
during the German occupation of France. He contended that after the Armistice of Compiegne (June 22, 
1940) relations with German nationals no longer fell within the meaning of that term. The Court of Cassation 
disagreed with this contention and Suarez died before a French firing squad. In the editorial comments on this 
case Lauterpacht says: "This judgment is in full conformity with the classical theory of international law 
regarding the juridical nature of an armistice. . . . An armistice is only a provisional suspension by treaty of 
hostilities, a temporary pause in military operations between belligerents, leaving, moreover, the state of war, 
with all its juridical consequences, still in existence." 

35. Security Council, Sixth Year, Official Records, 558th Meeting, pars. 1-7. The resolution made no 
mention of the Treaty of Constantinople of 1888. 

36. Stone, Legal Controls of International Conflict 641, 644 (New York, 1954). 

37. On April 13, 1956, while Mr. Dag Hammarskjold, Secretary General of the United Nations, was in 
the Middle East pursuant to a Security Council Resolution of April 4, 1956, attempting to secure compliance 
with the General Armistice Agreements, Mr. David Ben-Gurion, Prime Minister of Israel, requested him to 
"ascertain whether their [Egypt's] readiness to undertake the full implementation of the General Armistice 
Agreement signifies that they no longer consider Egypt to be at war with Israel." New York Times, April 17, 
1956. For a further discussion of the problem of the naval blockade during an armistice, see section III J below. 

38. Bluntschli, Le droit international codifie #691 (Trans, from German into French, Paris, 1870); Calvo, 
op. cit. #2339; Fiore, op. cit. #\114; Hall, A Treatise on International Law 583 (7th ed. by Higgins, Oxford, 
1917); Vattel, op. cit. iii, XVI, 246; 2 Westlake, International Law 92 (2d ed., Cambridge, 1913); Wheaton, 
op. cit. 224; Winthrop, Military Law and Precedents 787 (2d ed. rev., Washington, 1920). 

39. Castren, op. cit. 130; Fauchille, op. cit. 330; Fenwick, op. cit. 580; Grotius, op. cit. iii, XXI, VII; 
2 Hyde, International Law Chiefly as Interpreted and Applied by the United States 283 (Boston, 1922); 



24 Levie on the Law of War 

Lawrence, op. cit. 558; Phillipson, op. cit. 63 (note 13 above); Spaight, op. cit. 235; par. 256, Rules of Land 
Warfare; par. 287e, The Law of Land Warfare; par. 282, Laws and Usages of War on Land; par. 282, Laws of 
War on Land (note 12 above). It is interesting to note that Spaight (op. cit.) criticized a statement in Lawrence 
(apparently in the latter's 5th edition) to the effect that "it is universally agreed that during an armistice a 
belligerent may do in the actual theatre of war only such things as the enemy could not have prevented him 
from doing at the moment when actual hostilities ceased"; and that, perhaps as a salutary effect of Spaight's 
criticism, the next edition of Lawrence's work (the 6th), published in 1915, four years after Spaight's book 
appeared, stated (at p. 566): "There is a controversy whether during an armistice a belligerent may do, in the 
actual theatre of war, only such things as the enemy could not have prevented him from doing at the moment 
when active hostilities ceased, or whether he may do whatever is not forbidden expressly, except, of course, 
attack the enemy or advance further into his territory. The weight of authority is in favor of the former 
alternative; but the weight of reasoning seems on the side of the latter, which has the decisive support of recent 
practices." The latest (1927) edition of Lawrence is consistent with its immediate predecessor (p. 558). 

40. Several hundred years before the birth of Christ the famous Philip of Macedon took advantage of a 
"truce" (we would call it a suspension of arms), which he had requested for the purpose of burying his dead, 
and withdrew to a more advantageous position. Gentili (op. cit. ii, XIII, 313) says "Philip did wrong"; Grotius 
(op. cit. iii, XXI, VII) maintains that "it is not inconsistent with a truce to withdraw with the army inland as 
we read in Livy that Philip did"; Vattel (op. cit. iii, XVI, 250) also sees no bad faith in such an act, though 
warning that it gives the enemy the right to renew the attack despite the suspension of hostilities; Winthrop 
(op. cit. 787) concurs in Gentili's position; while Maurice (op . cit. 32) points out that in October, 1918, the 
British and French felt it necessary to call President Wilson's attention to the fact that the mere evacuation of 
occupied territory by the Germans (which had been suggested as a provision of the armistice which was then 
under discussion) would not suffice, inasmuch as the enemy would then have the opportunity, among other 
things, of "retiring without loss on to new positions which he would have time to choose and fortify" — clear 
acceptance of the validity of Phillip's act. 

4 1 . The last reported incidents involving this problem occurred during the latter half of the 1 9th century. 
They clearly indicate that, as a matter of practice, belligerents have frequently taken actions during an armistice 
which were not specifically forbidden and which the enemy could have prevented at the moment when actual 
hostilities ceased. One of these incidents occurred during the Seven Weeks' War between Prussia and Austria. 
After the Armistice of Nikolsburg had been signed (July 26, 1866), Prince Frederick Charles, the Prussian 
commander, massed his troops in such a manner as to facilitate an attack on Pressburg, should the negotiations 
for peace fail, an action which the Austrians could, at least, have rendered difficult. This action brought no 
protest from the Austrians — and the Treaty of Prague (August 23, 1866) brought the war to an end. Similarly, 
after the Armistice of Adrianople had been signed (Jan. 31, 1878), bringing to a halt hostilities between the 
Russians and the Turks, the Russian commander, General Totleben, ordered his troops to erect a number of 
high observation posts from which a full view of the Turkish entrenchments could be obtained, an act which 
the Russians certainly could not have accomplished prior to the cessation of hostilities. The Turkish 
commander demanded that they be removed and threatened to open fire on them if this was not done. General 
Totleben refused to comply with this demand and complained to the Turkish Government which overruled 
its military commander and never questioned the right of the Russians to do as they had done. And again, 
during the Boer War, after the signing of the Armistice of Tugela Heights (Feb. 25, 1900), British artillery 
was moved to new positions and the British took other actions which the Boers had been in a position to 
prevent at the time the armistice was signed. All this was apparendy done with no protest on the part of the 
Boers. 

42. Bordwell, The Law of War between Belligerents 295 (Chicago, 1908); Phillipson, op. cit. 63-64 
(note 13 above); Spaight, op. cit. 235. 

43. For an example of this practice, see sub-pars. 13c and 13d of the Korean Armistice Agreement. The 
three Agreements on the Cessation of Hostilities in Indochina have many restrictive provisions identical with, 
or closely parallel to, those contained in the Korean Armistice Agreement. They also have additional provisions 
in this regard, such as those relating to "foreign troops," "military bases," and "military alliances." 

44. See discussion above. 

45. A number of the armistice agreements to which reference will be made were studied in somewhat 
esoteric documents which were approximately contemporaneous with the particular armistice itself. These 
documents, many of which are probably unique, are located in the Library of the International Court ofjustice 
at The Hague. Where this is so it will be indicated by a footnote stating "I.C.J. Library." 

46. Pars. 487-488, The Law of Land Warfare (note 12 above). 

47. See discussion above. 






Armistice Agreement 25 

48. Traite de Treve entre Le Serenissime et Tres-Puissant Prince Leopold, Empereur des Romains et 
L'Empire, d'une Part ET Le Serenissime et Tres-Puissant Prince Louis XrV Roy Tres-Chrestien de France 
et de Navarre d'autre Part, I.C.J. Library. 

49. Traite de Suspension d'Armes en Italie Conclu a Vigevano le Septieme Octobre 1696 (Paris, 1697), 
I.C.J. Library. 

50. I.C.J. Library. 

51. T.I.A.S., No. 1604; 40 AJ.I.L. Supp. 1 (1946); Dept. of State Bulletin, Nov. 11, 1945, p. 748. 

52. Takahashi, International Law Applied to the Russo-Japanese War 219 (New York, 1908). 

53. Ibid. 220. 

54. Ibid. 224. 

55. Ibid. 225. 

56. Par. 1, Renville Truce Agreement (note 5 above). 

57. Part IA, Resolution for a Cease-Fire Order and Truce Agreement (note 5 above). 

58. See, for example, Art. III(l), Israeli-Lebanese General Armistice Agreement. In view of the basic 
similarity between the four Israeli- Arab General Armistice Agreements all subsequent references to this group 
of agreements will be restricted to the Israeli-Lebanese General Armistice Agreement, which was drafted by 
eliminating unnecessary provisions from the prior Israeli-Egyptian agreement and which served as the model 
for the agreements later negotiated between Israel and its other Arab neighbors, Jordan and Syria. 

59. Par. 12, Korean Armistice Agreement (note 5 above). So, likewise, do the three Agreements on the 
Cessation of Hostilities in Indochina, which, in many instances, adopted verbatim the phraseology of the 
Korean Armistice Agreement. In view of the basic similarity between the three Agreements on the Cessation 
of Hostilities in Indochina, all subsequent references to this group of agreements will be restricted to the 
Agreement on the Cessation of Hostilities in Viet-Nam. 

60. Spaight, op. cit. 234. 

61. Oppenheim, op. cit. 554. 

62. The Armistice of Nikolsburg (Austria-Prussia) was signed on July 6, 1866, to be effective one week 
later, on Aug. 2 (Phillipson, op. cit. 65). The Truce of Brussels (Spain-United Provinces) was signed on March 
13, 1607, and did not take effect until May 5, 1607 (Discours, Paris, 1609, I.CJ. Library). 

63. The Armistice of Versailles, signed by France and Germany onjan. 28, 1871, provided for a cessation 
of hostilities on the date of the signing in the Paris area and three days later in the more remote areas of France 
(Clercq, Recueil des traites de la France (Paris, 1864-1872), Vol. X, pp. 410-414). Art. 11 of the Agreement 
on the Cessation of Hostilities in Viet-Nam (note 5 above), provides for a cessation of hostilities simultaneously 
throughout all of Viet-Nam and then, paradoxically, specifies different effective dates in different areas of the 
country because of the difficulty of transmitting orders down to the lowest combat echelons. Because of the 
comparatively primitive conditions existing in Indochina, a number of the provisions of these three agreements 
are throwbacks in history. 

64. Benton, op. cit. 228. Another instance of difficulties arising because of insufficient attention being 
paid to armistice provisions regarding time occurred during the Second Balkan War (1913). An armistice 
agreement was entered into while peace negotiations were being conducted. It became necessary to extend 
the duration of the armistice and, by error, an armistice which expired at noon was renewed only as of 1:00 
P.M. The threat of a resumption of hostilities for one hour was only overcome by direct appeal to the peace 
conference! 

65. Par. 1, Renville Truce Agreement; Art. VIII(l), Israeli-Lebanese General Armistice Agreement 
(notes 5 and 58 above); pars. 12 and 63, Korean Armistice Agreement; Arts. 11 and 47, Agreement on the 
Cessation of Hostilities in Viet-Nam (notes 5 and 59 above). Because the India-Pakistan Resolution for a 
Cease-Fire Order and Truce Agreement was actually only a resolution of the United Nations Commission, 
it was necessary for the parties to reach a supplementary agreement as to the effective date and time of the 
cessation of hostilities. This they did (par. 14, U.N. Doc. S/1196, Jan. 10, 1949). 

66. Note 62 above, and Ariga, La Guerre sino-japonaise 251 (Paris, 1896). 

67. Actenstiicke zur Schleswig-Holstein 'schen Frage. Waffenstillstand von Malmoe vorn 26 August 
1848 (Frankfurt am Main, 1848), I.C.J. Library. 

68. I.CJ. Library. 

69. Politis, he. cit. 130. 

70. Par. 10, Renville Truce Agreement. 

71. Art. VIII (2), Israeli-Lebanese General Armistice Agreement. 

72. Par. 62, Korean Armistice Agreement. 

73. Politis, loc. cit. 
14. Note 11 above. 
75. Ibid. 



26 Levie on the Law of War 

76. They appear to do no more than to reiterate the principles of Pacta sunt servanda. 

77. Spaight, op. cit. 234; Wheaton, op. cit. 225. Both par. 265b of the Rules of Land Warfare and par. 
487/) of The Law of Land Warfare (note 12 above) state that if the duration of an armistice is indefinite, "a 
belligerent may resume operations at any time after notice." 

78. See, for example, Spaight, op. cit. 

79. War of the Rebellion, Vol. XLVII, pp. 302, 334, 345. 

80. Ibid. 243 (Sherman to Grant and to Halleck). 

81. Ibid. 293 (Sherman to Johnston). 

82. Poliris, loc. cit. 136; Spaight, op. cit. 244. See also par. 265c, Rules of Land Warfare; par. 487c, The 
Law of Land Warfare; par. 289, Laws and Usages of War on Land; and par. 289, Laws of War on Land (note 
12 above). 

83. Robert, op. cit. 36. 

84. Note 27 above. 

85. Note 68 above. 

86. Note 62 above. 

87. Poliris, loc. cit. 130. Phillipson, op. cit. 69, says that these two armistice agreements omitted 
demarcation lines. However, that of Epirus provided for the Turks to occupy the right bank of the Arachtos 
River and for the Greeks to retire to the left bank; and that of Thessaly specified that a line of demarcation 
was thereafter to be plotted. This was done and a neutral zone 5 km. wide was established (Politis, loc. cit. 
136). 

88. Pars. 1 and 2, Renville Truce Agreement (note 5 above). 

89. Arts. 4 and 5, Israeli-Lebanese General Armistice Agreement (notes 5 and 58 above). 

90. Pars. 1-4, Korean Armistice Agreement. 

91. Art. 1, Agreement on the Cessation of Hostilities in Viet-Nam. 

92. Part IIA 1, India-Pakistan Resolution for a Cease-Fire Order and Truce Agreement. 

93. Note 11 above. 

94. Ibid. For a dispute as to the correctness of the above official translation of this article, see Spaight, op. 
cit. 232, note. 

95. Lieber, op. cit. Art. 141. 

96. Par. 265d, Rules of Land Warfare; par. 487 d, The Law of Land Warfare, loc. cit. 

97. T.I.A.S., No. 3365; 50 AJ.I.L. 724 (1956). 

98. Robert, op. cit. 28; Sibert, loc. cit. 700; Spaight, op. cit. 245. Sibert states that "civilians remain under 
the protection — extremely imperfect — of the laws of war." It is to be hoped that the Civilian Convention 
(note 97 above) will prove to have mitigated this criticism. 

99. Bluntschli, op. cit. #693. 

100. Hyde, op. cit. 285. 

101. ARTICLES de la TREFUE proposee par les AmbafFadeurs des Roys de France, & de la grand 
Britagne, en 1'afFemblee des Eftats Generaulx (Paris, 1608), I.C.J. Library. 

102. DISCOURS de ce qui s'est passe au Royaume D'Hongrie, sur le traitte de la paix, auec le Roy 
d'Espagne, & les serenissimes Princes Archiducs, & les Estats generaux des prouinces vries dudict pays (Paris, 
1609), I.C.J. Library. 

103. Traite entre Le Roy Louis XIV, La Reyne de Suede, etc., d'une Part ET L'Electeur Maximilian, 
etc., d'autre Part (Paris, 1689), I.C.J. Library. 

104. Note 48 above. 

105. Note 5 above. Strangely enough, this subject of commercial intercourse probably received more 
attention in former days than it does now. 

106. Par. 59, Korean Armistice Agreement. 

107. Art. 14(d), Agreement on the Cessation of Hostilities in Viet-Nam, loc. cit. For some statistics on the 
huge number of persons who took advantage of this provision, see Report on Indochina 8-9 (note 5 above). 

108. Ibid. Art. 21. 

109. Note 97 above. 

110. Note 103 above. 

111. Note 50 above. 

1 12. Note 67 above. 

113. Note 1 1 above. 

114. Note 14 above. 

115. Art. 118, 1949 Geneva Convention relative to the Treatment of Prisoners of War, T.I.A.S., No. 
3364; 47 AJ.I.L. Supp. 119 (1953). 



Armistice Agreement 27 

116. Par. 487/ The Law of Land Warfare. The details of the dispute with regard to the release and 
repatriation of prisoners of war which bogged down the Korean armistice negotiations for well over a year 
after agreement had been reached on all other matters is beyond the scope of this paper. It is suggested that, 
while the definitive discussion of that problem remains to be written, basic materials with regard thereto may 
be found in Charmatz & Wit, "Repatriation of Prisoners of War and the 1949 Geneva Convention," in 62 
Yale Law Journal 391 (1953); Gutteridge, "The Repatriation of Prisoners of War," in 2 International and 
Comparative Law Quarterly 207 (1953); Mayda, "The Korean Repatriation Problem and International Law," 
in 47 A.J.I.L. 414 (1953); Lundin, "Repatriation of Prisoners of War: The Legal and Political Aspects," in 39 
American Bar Association Journal 559 (1953); British White Paper, The Legal Aspects of the Repatriation of 
Prisoners of War, Cmd. 8793 (March, 1953); Department of State, Memorandum of Legal Considerations 
Underlying the Position of the United Nations Command Regarding the Issue of Forced Repatriation of 
Prisoners of War (1953); Baxter, "Asylum to Prisoners of War," in 30 British Year Book of International Law 
489 (1953); and Stone, op. cit. 661-665, 680-683. See also Garcia-Mora, International Law and Asylum as a 
Human Right, Ch. VII (Washington, 1956). 

117. Bernand, op. cit. 92; Politis, he. cit. 142; Robert, op. cit. 97. 

118. Robert, ibid. 99. 

119. Pars. 157-159, Rules of Land Warfare. 

120. The Final Act of the 1949 Geneva Conference had 59 signatories. Up to July 1, 1956, there had 
been notification of 42 ratifications and 10 adherences. The U. S. ratification became effective on February 2, 
1956. See 50 A.J.I.L. 724 (1956). 

121. Par. 52, Korean Armistice Agreement (note 5 above). 

122. Par. If, Renville Truce Agreement. 

123. Art. VI, Israeli-Lebanese General Armistice Agreement (notes 5 and 58 above). 

124. Pars. 51-58 and Annex, Korean Armistice Agreement. 

125. Notes 5 and 59 above. 

126. Note 107 above. 

127. Par. 487^, the Law of Land Warfare (note 12 above). 

128. Note 101 above. 

129. Note 48 above. 

130. Note 68 above. 

131. 34 A.J.I.L. Supp. 127, 131 (1940); Dept. of State Bulletin, April 27, 1940, p. 453. 

132. Arts. 4, 8, and 9, and par. 3 of the Annex, Renville Truce Agreement. 

133. Part ID, Resolution for a Cease-Fire Order and Truce Agreement. 

134. Art. VII, Israeli-Lebanese General Armistice Agreement (notes 5 and 58 above). 

135. Pars. 19-35, 36-50, 56, 57, and Annex, Korean Armistice Agreement (note 5 above). 

136. Pars. 30-33 and 34-36, Agreement on the Cessation of Hostilities in Viet-Nam (notes 5 and 59 
above). 

137. See discussion above. 

138. Par. 488, The Law of Land Warfare (note 12 above). 

139. Prohibition of sabotage, restrictions on propaganda radio broadcasts: par. 7, Renville Truce 
Agreement; local administration, guarantee of human and political rights, consultation on means of 
self-determination: Parts IIA3, IFB3, and III, India-Pakistan Resolution for a Cease-Fire Order and Truce 
Agreement; civil administration and relief in demilitarized zone, displaced persons, recommendation for the 
convening of a political conference: pars. 10, 59, and 60, Korean Armistice Agreement (note 5 above); civil 
administration and relief in demilitarized zone, political and administrative measures in regrouping zones, 
prohibition of foreign military bases, prohibition of military alliances: para. 8, 14, and 19, Agreement on the 
Cessation of Hostilities in Viet-Nam (notes 5 and 59 above). The Israeli- Arab General Armistice Agreements 
contain no such provisions, probably for the reason mentioned in note 26 above. 

140. See p. 8 above. 

141. Lieber, op. cit. Art. 136. For some reason, Art. 145 provides further that a "clear" breach of an 
armistice by one part)' releases the other. 

142. Note 11 above. 

143. Ibid. 

144. Wheaton, op. cit. 229. 

145. Oppenheim, op. cit. 556. 

146. An exception to this statement is par. 10 of the Renville Truce Agreement, which provides: "This 
agreement shall be considered binding unless one party notifies the Committee of Good Offices and the other 
party that it considers the truce regulations are not being observed by the other parts' and that this agreement 
should therefore be terminated." 



28 Levie on the Law of War 

147. Grotius, op. cit. iii, XXI, XIII. 

148. Note 11 above. 

149. Par. 269, Rules of Land Warfare (note 12 above). 

150. Par. 494b, The Law of Land Warfare (note 12 above). 

151. Ibid. par. 494c In general accord on this problem, see pars. 299 and 300, Laws and Usages of War 
on Land; and pars. 299 and 300, Laws of War on Land. 

152. Note 103 above. 

153. Note 5 above. 

154. The India-Pakistan Resolution for a Cease-Fire Order and Truce Agreement is stated to be applicable 
to "all forces, organized and unorganized." The Israeli-Lebanese General Armistice Agreement refers to 
"military or para-military forces of either Party, including non-regular forces." The Korean Armistice 
Agreement uses the more general term "all armed forces under their control, including all units and personnel 
of the ground, naval, and air forces." So does the Agreement on the Cessation of Hostilities in Viet-Nam. 

155. Rosenne, op. cit. 45. 

156. The exception is Rolin, Le droit moderne de la guerre (Brussels, 1920), in which an entire chapter 
(Vol. II, Ch. XVII, ##801-810) is devoted to "The application of the rules of armistice in maritime warfare." 

157. Castren, op. cit. 130. 

158. Oppenheim, op. cit. 547; Politis, he. cit. 134; Robert, op. cit. 52; Wheaton, op. cit. 229. Rolin {op. 
cit. #805) quotes Art. 72 of the Manuel des lois de la guerre maritime, drafted by the Institut de Droit 
International, as stating that "in the absence of a specific provision in the agreement, blockades in being at the 
time of an armistice need not be lifted." Rolin asserts, however, that no new blockades may be established, 
as the establishment of a blockade is an act of war. 

159. Oppenheim, op. cit. 144; Politis, loc. cit. 

160. Pillet, Les lois actuelle de la guerre 368 (Paris, 1901). 

161 . For a discussion of the problem arising from the indefiniteness of the provision of the Israeli-Egyptian 
General Armistice Agreement in this regard, see above. 

162. Note 102 above. 

163. Note 50 above. 

164. Note 67 above. 

165. Clercq, op. cit. 

166. Note 66 above. 

167. Politis, loc. cit. 116. 

168. See discussion and notes 52 and 54 above. 

169. Note 5 above. 

170. Notes 5 and 58 above. 

171. See discussion above. 

172. Note 5 above. 

173. Notes 5 and 59 above. 



II 

Prisoners of War and the Protecting Power 

55 American Journal of International Law 374 (1961) 



One of the more significant, but inadequately recognized, developments 
in the field of the law of war which has occurred during the past 
half-century is that with respect to the institution of the Protecting Power. 
Surprisingly little has been written, especially in English, either on the general 

subject of the Protecting Power or on the specific subject of the Protecting 

1 
Power and its relationship to the prisoner-of-war problem. This article will 

endeavor, to a necessarily limited extent, to fill that void, with the emphasis 

being placed on the gradual, but steady, expansion of the authority, 

responsibility, and functions of the Protecting Power in safeguarding the welfare 

of prisoners of war. 

The term Protecting Power is comparatively simple of definition. It is a state 

which has accepted the responsibility of protecting the interests of another state 

in the territory of a third, with which, for some reason, such as war, the second 

state does not maintain diplomatic relations. Because the protection is most 

frequendy rendered to nationals of the protected state found in the third state, 

the former is often referred to as the Power of Origin and the latter as the Power 

of Residence. For obvious reasons, in the case of prisoners of war the state by 

which they are held is known as the Detaining Power rather than as the Power of 

Residence. And while the term Power of Origin may be a misnomer in the case of 

certain prisoners of war, as, for example, those who were captured while serving 

in the armed forces of a state other than their own, it will be used herein for 

lack of a more appropriate term. 

I. Historical 

The earliest indication of what we now term the Protecting Power probably 
appeared in the Capitulations of the Ottoman Empire of the sixteenth century. 
Curiously enough, in those early days protection of non-nationals came about, 
not as a result of agreements reached with the Power of Residence by the Power 
of Origin, but as a result of agreements reached with the Power of Residence 
by the prospective Protecting Power itself, the latter having probably been 
primarily concerned with the resulting increase in its own prestige and influence 
in the territory in which it was acting and in the home territories of the protected 



30 Levie on the Law of War 

persons. At that period the Protecting Power was, and in the three succeeding 
centuries it remained, completely a creature of custom and usage, with no 
conventional basis, definition, or functions. As a result, the extent of the activity 
of Protecting Powers varied in different countries and even, with respect to 
different Protecting Powers, within the same country. The passage of time 
resulted in the passing of the initiative for the designation of a Protecting Power 
in a particular case from the Protecting Power to the Power of Origin, where 
it more properly belonged. It also resulted in the concept of the Protecting 
Power as an international institution becoming more and more firmly intrenched 
in international law and practice. In its present form, however, the Protecting 
Power dates back less than one century — and its codified form is of even more 
recent vintage. 

Most writers attribute the modern genesis of the Protecting Power to 
developments which occurred during the Franco-Prussian War (1870-1871). In 
that conflict, probably for the first time, all of the belligerents were represented 
by Protecting Powers in the territory of the enemy. England was charged with 
the protection of the French in Germany; and the United States, Switzerland, 
and Russia acted as Protecting Powers in France for the various German States. 
It may be said that the expansion of the functions of the Protecting Power during 
this conflict was, in large measure, due to two practices which originated during 
its course: that of expelling enemy consuls; and that of imposing stringent 
restrictions on enemy aliens. Unquestionably, each of these practices could and 
did contribute to the need for the enlargement of the functions of the Protecting 
Power. 

The precedents established during the Franco-Prussian War were adhered to 
in most subsequent international conflicts, many of which had, however, their 
own peculiar aspects. Thus, in the Sino-Japanese War (1894—1895) each side 
requested the United States to act as its Protecting Power and so we find the 
same state acting as the Protecting Power for each belligerent within the territory 
of the other. Similarly, Germany acted as the Protecting Power for both 
belligerents in the Italo-Turkish War (1911-1912) and in the Sino-Soviet War 
(1929) . Going to the other extreme, in the Greco-Turkish War (1 897), Germany 
acted as the Protecting Power for Turkey in Greece, while three other nations, 
England, France, and Russia, acted jointly for Greece in Turkey; in the 
Spanish-American War (1898), England acted as the Protecting Power for the 
United States, while France and Austria-Hungary acted joindy for Spain (it was 
during this conflict that, for the first time recorded, a belligerent, the United 
States, specifically requested neutral inspection of installations within which 
prisoners of war were being held); and during the Balkan Wars (1912-1913) 
France and Russia acted joindy as the Protecting Power for Montenegro. This 
practice of using more than one friendly state as a Protecting Power has since 



Protecting Power 31 

almost disappeared, although at one time during World War II Spain was acting 
as the Protecting Power for Japan in the continental United States, while Sweden 
acted for her in Hawaii, and Switzerland in American Samoa. 

The Boer War (1899-1902) may, perhaps, be considered to have been, at 
least to some extent, an exception to what was fast becoming a firmly established 
institution of international law. Early in that conflict the British requested the 
United States to represent their interests with the Boers. Apparently the consent 
of the Boers was not sought and they not only failed to designate a Protecting 
Power of their own, but, for all practical purposes, at first refused to recognize 
the right of the United States consular representatives to act on behalf of the 
British. Subsequendy the Boers did agree to permit the United States consuls in 
their territory to perform certain specific and limited functions with respect to 
British prisoners of war, upon the understanding that United States consuls in 
England would have similar privileges with respect to Boer prisoners of war held 
there. Thus, to a limited degree, the institution of the Protecting Power was 
recognized even here. 

The Russo-Japanese War (1904-1905) found the Protecting Powers once 
again exercising the full powers which it had become customary to allot to them. 
Perhaps as a result of the favorable experiences of the Sino-Japanese War, 
immediately upon the outbreak of hostilities Japan requested the United States 
to act on its behalf in Russia; while France was designated by Russia as its 
Protecting Power in Japan and Korea. And once again, but to an even greater 
extent than during the Spanish-American War, we find the representatives of 

the Protecting Powers concerning themselves with the welfare of prisoners of 

8 
war. 

Thus it can readily be seen that when World War I burst upon Europe, the 

designation of Protecting Powers by belligerents was a firmly established 

international custom, although the Protecting Power as an institution had yet 

to be the subject of international legislation. During the course of that conflict 

four definite items of progress occurred: first, it was during World War I that 

public opinion in the belligerent countries achieved an understanding of how a 

friendly neutral could represent, at times vigorously, an enemy belligerent and 

its nationals; second, the use of the Protecting Power as a means of safeguarding 

the welfare of prisoners of war, although at first somewhat restricted, was later 

10 
greatly extended and received rather general acceptance; third, the practice 

was adopted that when a neutral which had been acting as a Protecting Power 

itself became embroiled in the conflict, a successor Protecting Power would be 

11 • • 

designated to fill the vacuum; and finally, the Protecting Power received legal 

recognition in a number of international agreements entered into by various of 

the belligerents during the course of the hostilities in which, to a surprising 

extent, its functions were spelled out with some degree of definiteness. 



32 Levie on the Law of War 

The precedents established during World War I were destined to bear fruit. 

A draft prisoner of war convention prepared in 1921 by the International 

Committee of the Red Cross (hereinafter referred to as the ICRC), while 

contemplating the use of Protecting Powers for certain limited purposes, would 

have assigned to the ICRC the responsibility for establishing mobile 

commissions composed of neutrals charged with assuring that the belligerents 

were complying with the convention. This proposal was probably due to two 

factors: first, the failure of the states which had acted as Protecting Powers during 

World War I adequately to report their activities; and second, the belief that the 

duties involved in the effective protection of the rights of prisoners of war would 

1 "\ 
exceed the capacity of the diplomatic personnel of Protecting Powers. 

However, when the Diplomatic Conference convened in Geneva in 1929 and 

drafted the convention which subsequently received the ratification of the vast 

majority of states, the ICRC proposal was not adopted and, instead, the basic 

principle of the Protecting Power received general acceptance, the former 

Protecting Powers taking the position that all that was needed to assure their 

activities was that their role "be distinctly set out, and their task clearly 

defined." The Prisoner of War Convention drafted at that Conference thus 

became the first international agreement negotiated in time of peace to give 

official recognition to the institution of the Protecting Power. However, it 

did not create a new international concept. It did not make the use of the 

Protecting Power by belligerents obligatory. It did not affect the relationships 

which had previously existed between the Power of Origin, the Protecting 

Power, and the Detaining Power. It did give the relationship a formal and agreed 

status which it had not previously had. It may well be considered that the 

provisions of the 1929 Convention relating to Protecting Powers constituted 

the most important advance contained in that convention over the provisions 

of the regulations relating to prisoners of war contained in the Annex to the 

Fourth Hague Convention of 1907. The lessons learned during World War 

I had not been forgotten. 

The advent of World War II provided, all too soon, an opportunity for the 

implementation and testing of this novel international legislation. Most of the 

belligerents were represented by Protecting Powers and, in general, these found 

the provisions of the 1929 Convention relating to their activities extremely 

helpful. True, the designation and functioning of Protecting Powers on behalf 

of prisoners of war had previously become an almost universally accepted custom 

in international law. But it is necessary to bear in mind that, despite this, in the 

U.S.S.R. and Japan, neither of which nations was a party to the 1929 

Convention, there was either complete or substantial failure in the functioning 

1 o 

of the Protecting Powers. In general, the fact that such a large number of 
countries were parties to the World War II hostilities had two distinct but related 






Protecting Power 33 

results. In the first place, not only did the absence of strong neutrals present a 
problem in the selection of Protecting Powers, but it also meant that there was 
no large neutral world public opinion to be affected by violations of the 
convention, and the power of neutral public opinion in forcing compliance with 
a humanitarian convention cannot be overestimated. And in the second place, 
because of the small number of neutrals available to act as Protecting Powers, it 
frequently occurred that the same neutral was designated to act as the Protecting 
Power for two opposing belligerents. 

Once again wartime lessons were not forgotten and on August 12, 1949, just 

four years after the final termination of World War II, a new Prisoner of War 

19 
Convention was signed in which, as we shall see, the functions of the 

Protecting Power are identified and defined with even greater particularity than 

had been the case in the 1929 Convention. Since that time the hostilities in 

Korea have occurred. At the outbreak of those hostilities General Douglas 

MacArthur, as the commander of the United Nations Command, immediately 

announced that his forces would comply with the humanitarian principles of 

the 1949 Convention. In answer to a query made by the ICRC, the Foreign 

Minister of the so-called Democratic People's Republic of Korea sent a message 

to the Secretary General of the United Nations stating that its forces were 

"strictly abiding by principles of Geneva Conventions in respect to Prisoners of 

War." Unfortunately, the provisions of the convention relating to the 

Protecting Power were evidently not among the principles with which they 

were "strictly abiding" so that, despite all efforts expended in this regard, those 

22 
provisions were never implemented. 

From the foregoing brief historical survey it is apparent that prior to 1870 

only the precursors of the modern Protecting Power existed, and not the latter 

itself; that during the period from 1870 to 1914 the concept of the Protecting 

Power began to take form, particularly with respect to its relationship to the 

problem of the prisoner of war; and that during the period subsequent to 1914 

the form has become definite, the institution of the Protecting Power having 

become the subject of numerous bilateral and multilateral international 

agreements, culminating in the 1949 Geneva Conventions to which most of the 

23 
nations of the world are parties. It now becomes appropriate to analyze the 

form and the character which the Protecting Power received during this 

evolutionary process. 

II. The Modern Concept of the Protecting Power 

A Designation 

As will have been noted, Article 86 of the 1929 Convention was, to say the 
least, somewhat vaguely worded: 



34 Levie on the Law of War 

The High Contracting Parties recognize that the regular application of the present 
Convention will find a guaranty in the possibility of collaboration of the protecting 
Powers charged with safeguarding the interests of belligerents . . . (Italics added.) 

There is nothing mandatory here. There is no requirement here that a Protecting 
Power actually be designated or that, if designated, it be permitted to function 
as such by the Detaining Power. The comparable provision of the 1949 
Convention reads quite differently. Article 8 of this latter convention provides: 

The present Convention shall be applied with the cooperation and under the scrutiny of 
the Protecting Powers whose duty it is to safeguard the interests of the Parties to 
the conflict. . . . (Italics added.) 

It would appear that the designation of Protecting Powers has now become at 
least a moral obligation of the belligerent; and that, once designated, a Protecting 
Power has a duty not only to the Power of Origin, but also to the other parties 
to the conflict, to perform the functions which have been assigned to it by the 
1949 Convention. 

What are the qualifications required of a state before it may be designated as 
a Protecting Power? It must, first of all, be a state within the meaning of that 
term in international law. It must also, of course, be a neutral state — and it is 
advisable that it be one which can reasonably be expected to remain neutral, 
although this latter qualification has become more and more difficult to assure. 
And, finally, it must be a state which maintains diplomatic relations with both 
the requesting state (the Power of Origin) and the state in which it is being 
requested to operate (the Detaining Power). 

How does a state actually become a Protecting Power? The belligerent state 
desiring the services of a Protecting Power requests a neutral state which has the 
qualifications listed above to act on its behalf. If the latter is willing to assume 
the functions of a Protecting Power, it so notifies the requesting state. It must 
then obtain from the Detaining Power permission to function as the Protecting 

Power for the requesting state vis-a-vis and within the territory of the Detaining 

27 
Power. In other words, the actual designation of the Protecting Power is based 

upon the request of the Power of Origin and the consent of both the proposed 

Protecting Power and the Detaining Power. 

As we have seen, it has frequently occurred in the past that more than one 

state has been designated as the Protecting Power for a belligerent, and there is 

nothing in the 1949 Convention, nor in general international law, to preclude 

this practice. However, the advantages of the other extreme — one and the same 

Protecting Power for both belligerents — are many. Even a small nation, when 

acting as the Protecting Power for both sides, is in a unique position to obtain 

a general observance of the law of war by each belligerent on the basis of 



Protecting Power 35 

reciprocity. This was made quite apparent during World War II. when 
Switzerland acted as the Protecting Power for many of the belligerents on both 
sides of the conflict. Some of the advantages of this situation are summed up as 
folic" 5 

For uniformity and simplicity of administration it is obviously desirable for the 
protected power to entrust its interests in another country to only one protecting 
power, and in instances involving the protection of belligerent interests there are 
advantages to all concerned if both belligerents entrust their interests in the othe : 
territory to the same protecting power. . . . The expenence of World War II 
indicates that a more uniform administration and a higher standard of treatment 
of enemy interests by both belligerents result from a reciprocal protection of the 
interests of those belligerents bv the same protecting power throughout the 
territories under the control of each belligeren: " 

The limited number of states which would be available and competent to act as 
Protecting Powers in any future world conflagration would, in all probability, 
almost automatically bring about this result, just as it did during World War II. 
The delegates at the Diplomatic Conference which drafted the 1949 
Convention foresaw the possibility of numerous situations in which there would 
be no Protecting Power." ' They attempted to solve this problem by providing 
in Article 10 of the convention for the designation of "substitutes" for Protecting 
Powers. It must, however, be emphasized that the provisions of this article 
should not be considered as affecting the basic method of selecting either 
Protecting Power or successor Protecting Powers as long as the Power of Origin 
continues to exist. A successor Protecting Power, necessitated, perhaps, because 
the original Protecting Power has become a belligerent, is not a "'substitute' : : 
a Pro:e:~r:g Power within the meaning of Article 10, and its designation is 
governed by the same rules of international law as those which govern the 
designation of the original Protecting Power. " It must also be emphasized that 
a state or organization designated under the provisions of Article 10 is not a 
Protecting Power as that term is used generally in international law and as it is 
used specifically elsewhere in the 1949 Convention, but is merely a state or 
organization performing some or many of the functions allocated to Protecting 
Powers by the convention. 

B. Personnel 

Article 8 of the 1949 Convention provides that 

. . . the Protecting Powers may appoint, apart from their diplomatic and consular 
staff, delegates from amongst their own naaonals or the nationals of other neutral 



36 Levle on the Law of War 

Powers. The said delegates shall be subject to the approval of the Power with 
which they are to carry out their duties. 

It is obvious that the convention has accorded to the Protecting Power two 

sources of personnel for the execution of its functions: its diplomatic and consular 

33 
officers stationed within the territory of the Detaining Power; and others of 

its nationals and other neutral nationals specifically appointed for the purpose. 

We shall discuss each of these sources in turn. 

The normal and natural source of personnel for the execution of the functions 
of the Protecting Power is, of course, the diplomatic and consular personnel 
already assigned to and stationed in the territory of the Detaining Power. These 
officials, working under the ambassador, are experienced, they are known to 
the local officials, and, perhaps most important, they are already present within 
the area of operations. It is, of course, true that they already have their usual 
functions to perform; but many of these functions disappear or are seriously 
curtailed upon the advent of war (commercial, immigration, tourists, etc.). 
While any large-scale war of lengthy duration will undoubtedly make it 
necessary for the Protecting Power to supplement its regular diplomatic and 
consular staff within the territory of the Detaining Power, there will be 
numerous instances in which the Protecting Power will be able to perform its 
functions with only its normal complement of officials, at least for some 
considerable period of time and until the number of prisoners of war held by 
the Detaining Power makes a build-up of personnel essential. Of course, the 
term "diplomatic and consular staff' includes not only those officials of the 
Protecting Power who were already stationed within the territory of the 
Detaining Power at the time of the designation of the Protecting Power, but 
also any of its other diplomatic and consular personnel who may be sent to 
replace or supplement them. 

With the heavy commitments which Switzerland had during World War II, 
it would obviously have been impossible for it to have made even a pretense of 
performing its far-flung responsibilities as a Protecting Power without a 
considerable increase in its staffs in the territories of the many Detaining Powers 
where it had consented to function. To accomplish this purpose the Swiss 
Government recruited in Switzerland and sent to its various affected embassies 
and legations "camp inspectors," who had the function of periodically visiting 
prisoner-of-war camps and work areas to assure that there was compliance by 
the Detaining Power with the provisions of the 1929 Convention. This is 
typical of the second source of personnel the use of which is authorized by 
Article 8 of the 1949 Convention — the non-career national who is selected by 
the government of the Protecting Power solely for the purpose of assisting it in 
performing its functions. He may also be the national of another neutral, but 



Protecting Power 37 

normally the Protecting Power would resort to this type of selection only when 
it has exhausted its own manpower potential. Of course, a major source of 
non-career personnel is to be found among the nationals of the Protecting Power 
and of other neutral Powers who are residing within the territory of the 
Detaining Power when the use of additional personnel becomes necessary. The 
Protecting Power may sometimes find it more convenient, when it has exhausted 
the list of its own nationals residing in the territory of the Detaining Power, to 
use neutral nationals falling within this category before resorting to the policy 
: : recruiting its own nationals in its own territory and sending them to the 
territory of the Detaining Power. 

It will have been noted that these non-career, or auxiliary, personnel are 
subject to the approval of the Detaining Power. This has occasioned considerable 
discussion, both at and since the Diplomatic Conference. No objection can be 
perceived to this procedure. The diplomatic and consular personnel of the 
Protecting Power stationed within the territory of the Detaining Power must 
have the normal approval of the state to which they are accredited (agretnent, 
exequatur), required for all such personnel, and any one of them may, at any 
time, be declared persona non grata by that state, the Detaining Power. The writer 
finds himself in complete accord with the statement that 

... it appeared to be incompatible with international usage that the occasional, 
auxiliary and temporary staff recruited by the Protecting Power should enjoy a 
more favorable status than the usual diplomatic or consular staff. 

The fear has been expressed that a Detaining Power might arbitrarily refuse 
to approve any of the auxiliary personnel nominated by the Protecting Power 
and thereby make it impossible for the latter properly to perform its functions. 
But a Detaining Power so minded could also, and with equal ease, arbitrarily 
decline to grant the necessary agrement or exequatur to replacement or 
supplementary diplomatic or consular personnel of the Protecting Power. Either 
of these acts would constitute a violation of the spirit, if not the letter, of the 
convention. Until the contrary is afiirmatively established, it must be assumed 
that states parties to the convention will carry out their obligations in good faith. 

The restriction which we have just been discussing is logical from another 
standpoint. The individuals concerned will, in the performance of their 
functions, be required to do considerable traveling within a country at war. Any 
country at war must institute controls on the right to enter into and to travel 
within its territory. To tell it that it must accept anyone selected by the Protecting 
Power, even though it has good reason not to trust the particular individual, is 
to close one's eyes to the facts of life. And for this same reason, the Detaining 
Power must retain the right to declare members of the staff of the Protecting 



38 Levie on the Law of War 

Power persona non grata, whether the individual concerned has diplomatic, 
consular, or auxiliary status. 

It has been stated that the representatives of the Protecting Power engaged 
in performing its functions in the territory of the Detaining Power have a triple 
responsibility: to their own government; to the government of the Power of 
Origin; and to the government of the Detaining Power. If this is another way 
of saying that these individuals must be completely neutral and unbiased, it is 
correct. It would, however, be less controversial to state, as did William Jennings 
Bryan, that they are "representatives of a neutral power whose attitude toward 
the parties to the conflict is one of impartial amity." 

C. Functions 

Unfortunately, with only a very few exceptions, the drafters of the 1949 
Convention apparently found it necessary to avoid any attempt to specify in 
detail the functions of the Protecting Power. Most frequently these functions 
are expressed either in the form of duties of the Detaining Power or rights of 
the prisoners of war. Where a precedent had previously been established, it is 
set forth in appropriate detail. Where no precedent had previously been 
established, the problem is normally left to ad hoc decision. It was probably 
anticipated that such problems would be solved by the Protecting Power through 
the exercise by it of the basic power guaranteed to it, that of surveillance to 
insure that there is, at all times, full compliance with the provisions of the 
convention. Should the Protecting Power ascertain that there is a default in the 
performance of some particular provision, it is apparently assumed that it will 
find a means of procuring a correction of the situation, even though such means 
is not specified. 

Nevertheless, the convention does contain repeated references to the 
Protecting Power and a function may usually be implied in a particular instance 
merely from such a reference. It is difficult, indeed, to categorize these varied 
references to the Protecting Power. Extremely broad categories are required, 
and even then not every function will fall within them. Several not wholly 
successful efforts have been made to list these references on a functional basis. 
For the purposes of this discussion they will be considered under three general 
categories: powers and duties; liaison functions; and miscellaneous functions (the 
functions listed in each category do not purport to be all-inclusive). 

(1) Powers and Duties: 

The basic and overriding power granted to the Protecting Power by the 1949 
Convention is, of course, that contained in Article 8, the very first sentence of 
which states that the convention 



Protecting Power 39 

. . . shall be applied with the cooperation and under the scrutiny of the Protecting 
Powers whose duty it is to safeguard the interests of the Parties to the conflict. 

This provision has been termed, and rightlv so. "the keystone of the 
conventions. 

Strangely enough, the only extended debate on this extremely crucial article 
which took place at the Diplomatic Conference concerned the selection of the 
proper word to characterize the activities of the Protecting Power, and that 
debate occurred primarily as a result of difficulties of translation. The delegates 
at the Diplomatic Conference were agreed that the Protecting Power could not 
give orders or directives to the Detaining Power. The idea which it was desired 
to convey was that the authority of the Protecting Power would entitle it to 
verify whether the convention was being properlv applied and. if necessary, to 
suggest measures on behalf of prisoners of war. x In the draft text the words 
'"under the supervision of the Protectmg Power" were used in the English 
version and the words "sous le controle des Puissances yrc:-cc:>:ccs" in the French. 
This was acceptable to the French-speaking delegates but was opposed by those 
who were English-speaking. It eventually became apparent that the two groups 
were actually in agreement and that the seeming dispute had arisen because the 
word "controle''' in French is much weaker than either "control" or "supervision" 
in English. The English-speaking delegations were given a choice of a number 

of words to be used as a counterpart for the French word "controle" and 

42 

unammous agreement was ultimately reached on the word "scrutiny." 

The importance of Article S may. perhaps, be found to he in the very 
generahty of its phrasing. The fact that the entire convention "is to be "applied 
with the cooperation" of the Protectmg Power undoubtedly empowers the latter 
to make suggestions to the Detaining Power with a view to the improvement 
of the lot of the prisoner of war even with respect to areas m which no specific 
reference is made to the Protecting Power. Thus, a Protecting Power might 
suggest to. and seek to obtain the agreement of. the Detaining Power that certain 
specified types of offenses committed by prisoners of war be punished by 
disciplinary rather than judicial measures, even though Article S3 contains no 
reference to the Protecting Power. Similarly, the fact that the convention is to 
be applied "under the scrutiny" of the Protecting Power undoubtedly empowers 
it to investigate and to request reports from the Detaining Power in unspecified 
areas. Thus, a Protecting Power might seek from the Detaimng Power a 
complete report as to the reasons for delays in the delivery or dispatching of mail 
or for the prohibition of correspondence, even though Article 76, dealing with 
these subjects, contains no mention of the Protecting Power; again, it might 
seek a report from the Detaining Power as to the action taken with respect to 
a complaint made by a prisoner of war, through the Protecting Power, regarding 



40 Levie on the Law of War 

the conditions of his captivity, even though Article 78, which authorizes such 
complaints, does not specifically provide for such a report. 

Perhaps on only a slighdy lower level of importance than Article 8 is Article 
126 which empowers the representatives of the Protecting Power to visit all 
places where prisoners of war may be, themselves selecting the places they will 
visit and determining the frequency of the visits; to have access to all premises 
where prisoners are confined; to go to the place of departure, passage, and arrival 
of prisoners who are being transferred; and to interview prisoners and prisoners' 
representatives without witnesses. " The significant nature of these provisions 
is so patent as to make any discussion superfluous. 

Other powers and duties of the Protecting Power are, indeed, varied. For 
example, it is directed to lend its good offices to assist in settling disputes with 
respect to the application and interpretation of the convention (Article 11); it is 
authorized to inspect the financial records of individual prisoners of war (Article 
65); it may, in the interests of the prisoners, permit the Detaining Power to 
reduce below the specified minimum the number of communications which 
may be sent out each month by each prisoner (Article 71); it may, in the interests 
of the prisoners, propose a limit on the number of packages which a prisoner 
may receive (Article 72); it may itself take over the transport of capture cards, 
mail, packages, and legal documents, should military operations prevent the 
Detaining Power from fulfilling its obligations in this respect (Article 75); it has 
an unrestricted right to receive complaints from individual prisoners and from 
prisoners' representatives (Article 78); it has the right to inspect the record of 
disciplinary punishments (Article 96); and it has the duty to find counsel for a 
prisoner against whom judicial proceedings have been instituted, and the right 
to attend the trial (Article 105). 

(2) Liaison Functions: 

In its liaison capacity the Protecting Power is actually little more than a 
conduit. It serves merely as the means of relaying necessary communications 
between the Detaining Power and the Power of Origin. Protecting Powers are, 
not infrequently, the sole means readily available for the transmittal of messages 
between the two belligerents. And, of course, while a great many liaison 
functions are specifically set forth in the 1949 Convention, this is one area in 
which the Protecting Power may safely operate, even where the particular liaison 
mission which it undertakes is not among those enumerated in the convention. 

The Detaining Power is required to give to the Protecting Power for relay 
to the Power of Origin the geographical location of all prisoner-of-war camps 
so that the prisoners will not, as has happened, accidentally become the target 
of their own compatriots (Article 23). The reasons for any limitations placed by 



Protecting Power 41 

the Detaining Power on the amount of funds made available to a prisoner of 
war from advances of pay must be conveyed to the Protecting Power, 
presumably for transmittal to the Power of Origin (Article 60). The Detaining 
Power must advise the Protecting Power, for relay to the Power of Origin, of 
the rate of daily working pay which it has fixed (Article 62) . Transmittals of 
payments by prisoners of war to their own country are made by notification 
from the Detaining Power to the Power of Origin through the medium of the 
Protecting Power (Article 63). Notifications with respect to the status of the 
accounts of prisoners of war (Article 65) and of prisoners whose captivity has, 
for some reason, such as escape, death, or other means, terminated (Article 66), 
are also sent by the Detaining Power to the Power of Origin through the medium 
of the Protecting Power. Claims of prisoners for injury or disease arising out of 
assigned work are similarly transmitted (Article 68). Information with respect to 
the measures taken by the Detaining Power to enable prisoners to communicate 
with the exterior must be transmitted to the Power of Origin through the 
Protecting Power (Article 69). And the Protecting Power must be informed, 
presumably for the information of the Power of Origin, as well as for its own, 
of all offenses punishable by death under the laws of the Detaining Power (Article 
100). 

In several instances the convention provides for the exchange of information 
between the belligerents without specifying how this is to be accomplished. 
Unquestionably, these are areas in which, as noted above, the Protecting Power 
would feel qualified to intervene, even though it has no specific mandate. For 
example, Article 21 provides for an exchange of information between 
belligerents as to their respective laws and regulations on the subject of parole, 
and Article 43 provides for an exchange of information with respect to military 
titles and ranks, but neither of these articles states how the exchange is to be 
made. The Protecting Powers are available and competent to perform this liaison 
function; and it may be assumed that either the Detaining Powers would request 
their services for this purpose or the Protecting Powers would, themselves, offer 
their services for the transmittal of the required information. 

(3) Miscellaneous Functions: 

There are a number of references to the Protecting Power in the 1949 
Convention which cannot rightly be designated as powers or duties but which 
are likewise not precisely liaison functions. For lack of a more descriptive term, 
and because, for the most part, they bear little or no relationship to each other, 
they are here considered as miscellaneous functions. 

Thus, Article 12 provides that if a Detaining Power, to whom prisoners of 
war have been transferred by the original Detaining Power, fails to carry out the 



42 Levie on the Law of War 

provisions of the convention, the original Detaining Power will, upon being 
notified to that effect by the Protecting Power, either take measures to correct 
the situation or request the return of the prisoners concerned. And Article 58 
indicates, without specifically so providing, that some time after the outbreak 
of hostilities the Detaining Power and the Protecting Power will enter into an 
arrangement relating to the possession of money by prisoners of war. 

Again, Article 79 requires the Detaining Power to inform the Protecting 
Power of its reasons therefor whenever it refuses to approve a duly elected 
prisoners' representative; and Article 81 requires the Detaining Power to inform 
the Protecting Power of its reasons for dismissing a prisoners' representative. In 
neither of these articles is there any indication of the action it is contemplated 
that the Protecting Power will take when the required information is given to 
it. While the information might, in the exercise of the Protecting Power's liaison 
function and as a matter of routine, be passed to the Power of Origin, this action 
alone would have little significance. Under its right to scrutinize the application 
of the convention, the Protecting Power would probably, in an appropriate case, 
take issue with the Detaining Power's action with respect to the non-approval 
or the dismissal of a prisoners' representative. 

Further, Article 121 provides that the Detaining Power shall investigate and 
make a full report to the Protecting Power of every death or serious injury of a 
prisoner of war caused or suspected to have been caused by a sentry, another 
prisoner of war, or any other person, or where the cause of death is unknown; 
and that if guilt is indicated, the Detaining Power will prosecute the responsible 
persons. Certainly it is to be expected that the Protecting Power will forward 
the report of the incident to the Power of Origin; but it is equally certain that 
the Protecting Power would, on its own initiative, make demarches to the 
Detaining Power, if it felt that the investigation had been inadequate or that a 
prosecution indicated by the investigation had not taken place. 

It is believed that the foregoing short presentation of only a few types of 
provisions adequately establishes that the Protecting Power has certain functions 
which cannot exactly be fitted into either the category of powers or duties or 
the category of liaison functions, and that these miscellaneous functions can 
probably become whatever the particular Protecting Power desires them to be. 

(4) Limitations: 

Each of the four conventions drafted at the 1949 Diplomatic Conference 

45 
contains an article similar to Article 8 of the Prisoner of War Convention. 

However, in the Third and Fourth Conventions (Prisoner of War and Civilian 

Conventions, respectively) the Protecting Powers are merely admonished to 

"take account of the imperative necessities of security of the State wherein they 



Protecting Power 43 

carry out their duties," while in the First and Second (Wounded and Sick of 
Armed Forces in the Field — the "Red Cross Convention" — and Wounded, 
Sick and Shipwrecked at Sea, respectively), not only are they so admonished, 
but they are told in an oblique fashion that their activities may be restricted "as 
an exceptional and temporary measure when this is rendered necessary by 
imperative inilitary necessities." The importance of the distinction drawn 
between the two pairs of conventions was fully appreciated at the time of the 
drafting of the conventions and was the occasion for some spirited debate. While 
on its face the solution reached by the convention is plainly a victory for those 
who sought to exclude the possibility of any shackles being placed on the 
Protecting Power in the performance of its functions with respect to prisoners 
of war, it remains to be seen whether this result was actually attained. 

Assuming that the Detaining Power desires to impose the "exceptional and 
temporary" restrictions on visits of the Protecting Power which are authorized 
in Article 126 of the 1949 Convention, or the right to the even more extensive 
restrictions on the activities of the Protecting Power which is asserted by some 
states to exist, whether or not specified in the convention, how and by whom 
is the decision to be made as to whether "imperative military necessities" do, in 
fact, exist? There is one school of thought which takes the position that it would 
be illogical to permit the determination to be made by the Detaining Power 

itself, as it would be judging its own case, and which insists that only the 

48 
Protecting Power can validly make such a determination. While, from a strictly 

humanitarian point of view, there is much to be said in favor of this position, it 

cannot, as a practical matter, be justified. If, for example, the Detaining Power 

deems it essential to keep representatives of the Protecting Power temporarily 

out of an area, lest military movements noted therein inadvertendy lead to the 

disclosure of important impending military actions, there would be little logic 

in compelling it to advise the Protecting Power what and why it was so doing 

in order to permit the latter to determine whether imperative military necessities 

actually existed and whether the restriction was really justified. This is 

unquestionably a matter which will, in the course of events and through 

reciprocal actions of the belligerents, adjust itself inasmuch as time and 

experience will very quickly result in an informal mutual appreciation as to 

49 
where the line is to be drawn. 

D. Relationship to the ICRC 

The multifold operations of the ICRC are obviously not within the scope of 
this article. However, inasmuch as the functions of the Protecting Power and 
those of the ICRC often overlap insofar as prisoners of war are concerned, it 
appears appropriate to mention, at least briefly, some of the overlapping areas. 



44 Levle on the Law of War 

The basic safeguard to the activities of the ICRC is contained in Article 9 of 
the 1949 Convention, which specifies: 

The provisions of the present Convention constitute no obstacle to the 
humanitarian activities which the International Committee of the Red Cross or 
any other impartial humanitarian organization may, subject to the consent of the 
Parties to the conflict concerned, undertake for the protection of prisoners of war 
and for their relief. 

Despite a substantially similar provision in Article 88 of the 1929 Convention, 
the ICRC found, during World War II, that it was, at times, necessary to 
overcome the feeling of some belligerents that it was attempting to duplicate 
the functions of the Protecting Powers. Apparently it succeeded in convincing 
them that such was not the case. 

It has already been pointed out that Article 10 of the 1949 Convention 
contains provisions for the designation of "substitutes" for Protecting Powers 
under certain circumstances. The third paragraph of Article 10 provides that, 
failing such a "substitute," the Detaining Power shall request or accept 

. . . the offer of the services of a humanitarian organization, such as the International 
Committee of the Red Cross, to assume the humanitarian functions performed 
by Protecting Powers under the present Convention. 

It must be emphasized that when the ICRC is thus called upon to serve, it does 
so as a humanitarian organization and not as a Protecting Power which, by 
definition, it cannot be, inasmuch as it is not a state. 

In a number of areas the convention places the ICRC on the same plane as 
the Protecting Power. As we have seen, Article 126 is of major importance in 

its grant of authority to the Protecting Power to go wherever prisoners of war 

53 
are located. ' That article also specifies that "The delegates of the International 

Committee of the Red Cross shall enjoy the same prerogatives." A similar 

parallel is to be found in Article 56 dealing with the locations of, and visits to, 

labor detachments. And it is not surprising that we find the ICRC referred to 

along with the Protecting Power in Articles 72 and 75, for these two articles are 

among those relating to individual and collective relief shipments, a subject of 

particular interest to the ICRC and one with respect to which it has developed 

an unchallengeable expertise as a result of experience gained in innumerable 

conflicts. Most Protecting Powers would probably be more than willing to 

permit the ICRC to pre-empt the handling of this difficult and complicated 

function. 

Articles 79 and 81 authorize the prisoners' representatives to communicate 

with the ICRC as well as the Protecting Power. Here, however, it is believed 



Protecting Power 45 

that the purpose of each such authorization to communicate is fundamentally 
different. The creation of the position of prisoners' representative was first 
suggested during the Franco-Prussian War (1870—1871) and became a reality 
during World War I. The function for which it was originally created was to 
receive and distribute relief packages. However, over the course of time, the 
functions of the prisoners' representatives have been greatly expanded, and 
during World War II it was not unusual to find them involved in practically all 
of the problems of a prisoner-of-war camp. Thus, they were frequently used by 
the prisoners as the channel for the transmittal of complaints both to the 

Detaining Power and to the Protecting Power. The drafters of the 1949 

55 
Convention were fully aware of this development, and it appears that the steps 

which they took were intended to insure that the privileges accorded to the 

prisoners' representative would permit him to communicate with the delegates 

of the ICRC on problems relating to relief shipments and with the Protecting 

Power on this subject as well as on the myriad of other problems into which 

the prisoners' representative is now projected. 

It is probably safe to state that, while the allocation of functions by the 1949 

Convention between the Protecting Power and the ICRC is not always as clearly 

stated as it might have been, the fundamental differences between the two and 

between their methods of operation are such that conflicts between them would 

be extremely rare. 

III. Conclusion 

The past century has seen tremendous advances made in the concept of the 
Protecting Power as an instrument of international law, both in the role which 
it is called upon to play and in the prestige which it enjoys and which goes far 
in assisting it to perform the numerous functions which have now been assigned 
to it. It appears unquestionable that: 

The presence of the Protecting Powers today remains the sole means of putting 
a brake on the excesses of Detaining Powers, the sole element of moderation and 

of morality in the treatment of enemy persons, their belongings, and their interests: 

57 
this was noted and affirmed many times at Geneva. 

The results of the 1949 Diplomatic Conference reveal clearly that the nations 
of the world were generally prepared to accept a solid basis for the activities of 
the Protecting Power. It was conceded a mission of close observation of the 
application of the provisions of the Prisoner of War Convention drafted at that 
Conference, a mission which necessarily incorporates within it a right to call to 
the attention of the Detaining Power any failure of performance which it finds 
and to report any such failure of performance to the Power of Origin; a sizeable 



46 Levle on the Law of War 

expansion was made in its functions and, correlatively, in its power and authority; 
provision was made for substitutes for Protecting Powers in order to insure that 
prisoners of war would at all times benefit from the exercise of the functions of 
the Protecting Power, thus correcting the situation which had arisen all too 
frequendy during World War II; and the use of the institution of the Protecting 
Power was extended not only to the Red Cross Convention (Wounded and 
Sick of Armed Forces in the Field), but also to the convention which adapts the 
Red Cross Convention to maritime warfare (Wounded, Sick and Shipwrecked 
at Sea), and to the completely new Civilian Convention. These few examples 
alone demonstrate the great distance which has been traversed since 1907, when 
the prisoner-of-war provisions of the Regulations Respecting the Laws and 
Customs of War on Land were drafted at The Hague and contained no reference 
whatsoever to the Protecting Power. 

In many respects the provisions of the 1949 Geneva Conventions relating to 
the Protecting Power represent compromises. Positions reached solely in order 
to bring about agreement between opposing viewpoints can rarely be considered 
perfect and the present case is no exception. However, these provisions 
unquestionably represent a great step forward in the evolution of international 
law and would undoubtedly be viewed with amazement by those who drafted 
the first Red Cross Convention in 1864 or even by those who acted on behalf 
of the Protecting Powers as recendy as in 1914, at the beginning of World War 
I. 59 

The Protecting Power is now a generally accepted institution of international 
law. It is the subject of international agreements to which most of the states of 
the world are parties. There are clear indications that it has been weighed in the 
balance and not been found wanting, with the result that it has been, and in the 
future will continue to be, requested to assume numerous new functions on 
behalf of states at war. 

Notes 

1 . A fairly complete contemporary bibliography of published items would consist of the following: 
[Franklin, Protection of Foreign Interests (1946);Janner, La Puissance Protectrice en Droit International (1948; 
originally published in German); Siordet, The Geneva Conventions of 1949: The Question of Scrutiny (1953; 
originally published in French); and De la Pradelle, "Le Controle de l'Application des Conventions 
Humanitaires en cas de Conflit arme," in 2 Annuaire Francais de Droit International 343 (1956). The subject 
is, of course, dealt with, but in a more limited fashion, in the various general treatises and articles on the 1949 
Geneva Conventions such as De la Pradelle, La Conference Diplomatique et les Nouvelles Conventions de 
Geneve du 12 aout 1949 (1951); Yingling and Ginnane, "The Geneva Conventions of 1949," in 46 A.J.I.L. 
393 (1952); (Kunz, "The Geneva Conventions of August 12, 1949," in Law and Polities in the World 
Community 279 (Lipsky, 1953); and Pictet, Commentary on the Geneva Convention Relative to the 
Treatment of Prisoners of War (hereinafter referred to as Commentary) (1960). Modern texts on international 
law do litde more than paraphrase the provisions of the Geneva Conventions. See, for example, 2 Oppenheim 
(Lauterpacht), International Law 374-376 and 386 (7th ed., 1952), and Stone, Legal Controls of International 
Conflict 655, 658, 661, and 666 (1954). Many slightly older texts do not even include the term "Protecting 
Power" in their indices. See, for example, 2 Oppenheim (McNair), International Law (4th ed., 1926), and 



Protecting Power 47 

Wheaton (Phillipson), International Law (5th ed., 1916). It is to be hoped that this paucity of material does 
not indicate a continuation of the neglect of the law of war condemned by Kunz a decade ago. Kunz, "The 
Chaotic Status of the Laws of War and the Urgent Necessity for Their Revision," in 45 A.J.I.L. 37 (1951). 

2. A state is frequently called upon to represent certain specified interests of another state in the territory 
of a third, even though normal, peaceful relations exist between the two latter. Thus, in 1955 the United 
States was, in varying degrees, representing some 25 states in some 80 other states (United States Foreign 
Sendee Manual, Vol. 2, Consular Affairs, pars. 923.31-925.32. July 13, 1955). This peacetime practice 
unquestionably played an important part in the historical development of the present-day wartime concept of 
the Protecting Power. The Protecting Power, which is the subject of this article, must not be confused with 
the protecting state exercising powers over a protectorate. 

3. Isolated instances of this practice had occurred earlier. Thus, for example, we find that in the thirteenth 
century the Venetian Resident in Constantinople was charged with the protection of Armenians and Jews. 
The appearance of the Protecting Power has been attributed to a combination of three older institutions of 
international law: extra-territorialiry; the employment of foreigners as diplomatic and consular agents; and the 
use of personal good offices. Franklin, op. tit. 7. It is doubtful that the concept of the Protecting Power as it 
first appeared in the Turkish Capitulations had any more direct progenitor. 

4. Franklin, op. tit. 29 and 39; Eroglu. La Representation Internationale en vue de Proteger les Interets 
des Belligerants 10-12 (unpublished thesis (1949) graciously furnished to the writer by the Dean of the Faculty 
of Law of me Umversite de Neuchitel ; detailed information concerning the designation of Protecting P ewers 
in most of the conflicts mentioned herein may be found in this excellent srudy at pp. 10-29. 

5. Franklin, op. tit. 29. 

6. Flory, Prisoners of War 107-108 (1942). 

7. Franklin, op. tit. 68. 

8. Eroglu, op. tit. 23-24; Franklin, op. tit. 78-79. The latter states that on one occasion when an American 
Vice Consul was inspecting a prisoner-of-war camp he was permitted to sample the meal which was then 
being given to the Japanese prisoners of war. In view of all these precedents, it is particularly difficult to 
comprehend why the 1899 and the 1907 Hague Conferences, both of which were sponsored by the Tsar of 
Russia, while codifying many customary rules concerning the treatment of prisoners of war. continued the 
silence of previous international conventions with respect to the institution of the Protecting Power. 

9. Siordet, op. tit. 7. World War I saw more men taken prisoner than in any previous conflict; and it 
likewise saw them held in captivity for a longer period of time. Both of these factors had the effect of focusing 
attention on prisoners of war. It was undoubtedly this situation which led to the more general public acceptance 
of the idea of a wider use of the Protecting Power in the interests of prisoners of war. Pictet, Commentary 
93-94. 

10. Strangely enough, Germany, which had frequently acted as a Protecting Power, and the United States, 
which had not only frequently acted as a Protecting Power, but was probably the protagonist of the extension 
of the functions of the Protecting Power with respect to prisoners of war during the period prior to its own 
entry into World War I, were the two most important belligerents to resist the activities of Protecting Powers. 
At the beginning of the war Germany instituted rigid restrictions on visits by neutrals to its prisoner-of-war 
camps. By 1916 these restrictions had, due largely to the efforts of the United States, for the most part 
disappeared. Yet when the United States became a belligerent in 1917, the then Secretary of War took the 
position that Germany had no right to designate the Swiss to inspect American prisoner-of-war camps unless 
under treaty law. His position was apparently overruled by President Wilson and members of the Swiss Foreign 
Service were permitted to make such inspections. Flory, op tit. 108-109. 

11. Eroglu, op. tit. 27-28. 

12. For example, Art. VIII of the Final Act of the Conference of Copenhagen of Nov. 2. 1917 (photostatic 
copy on file in The Army Library. Washington. D.C.), to which Austria-Hungary, Germany, Rumania 
Russia were the belligerent parties, dealt with "Arrangements concerning the Admission of the Delegates of 
the Protecting Power ... on the Basis of Reciprocity"; An. XI of the Agreement between the British and 
Turkish Governments respecting Prisoners of War and Civilians, executed at Bern on Dec. 28, 1917 (111 
Brit, and For. State Papers 557-568), dealt with the subject of visits to prisoner-of-war camps by "representatives 
of the Protecting Powers"; and the Agreement between the United States of America and Germany 
Concerning Prisoners of War, Sanitary Personnel, and Civilians, executed at Bern on Nov. 11, 1918 (13 
A.J.I.L. Supp. 1 (1919); Foreign Relations of the United States. 1918, Supp. 2, p. 103), contains references 
to the Protecting Power in no less than 25 separate paragraphs. 

13. Rasmussen, Code des Pnsonniers de Guerre 56 (1931). 

14. Siordet, op. tit. 12. Twenty years and one World War later, we again find them urging that the 
Protecting Power be given the benefit of "well-defined and precise provisions." Final Record of the Diplomatic 
Conference of Geneva of 1949 (hereinafter referred to as Final Record), Vol. II B. p. 19. 



48 Levie on the Law of War 

15. The 1929 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter referred 
to as the 1929 Convention), 47 Stat. 2021; Treaty Series, No. 846: 27 AJ.I.L. Supp. 59 (1933). It is interesting 
to note that the companion convention drafted at the same Diplomatic Conference, The Geneva Convention 
for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field (better known as the 
1929 Geneva Red Cross Convention), 47 Stat. 2074; Treaty Series, No. 847; 27 AJ.I.L. Supp. 43 (1933), a 
direct descendant of the 1864 and 1906 Geneva Red Cross Conventions, continued to contain no reference 
to Protecting Powers, a situation which was only remedied 20 years later, after World War II. 

16. Art. 86 of the 1929 Convention reads as follows: 

"The High Contracting Parties recognize that the regular application of the present Convention will find 
a guaranty in the possibility of collaboration of the protecting Powers charged with safeguarding the interests 
of belligerents; in this respect, the protecting Powers may, besides their diplomatic personnel, appoint delegates 
from among their own nationals or from among the nationals of other neutral Powers. These delegates must 
be subject to the approval of the belligerent near which they exercise their mission. 

"Representatives of the protecting Power or its accepted delegates shall be permitted to go any place, 
without exception, where prisoners of war are interned. They shall have access to all places occupied by 
prisoners and may interview them, as a general rule without witnesses, personally or through interpreters. 

"Belligerents shall so far as possible facilitate the task of representatives or accepted delegates of the 
protecting Power. The military authorities shall be informed of their visit. 

"Belligerents may come to an agreement to allow persons of the same nationality as the prisoners to be 
permitted to take part in inspection trips." 

In addition, the Protecting Powers were specifically given such functions as: receiving complaints from 
prisoners of war (Art. 42); conferring with the representatives ("agents") of prisoners of war (Arts. 43 and 44); 
and assuring that prisoners of war who were subjected to judicial prosecutions were adequately protected (Arts. 
60, 62, 65, and 66). Evidence that the drafters of the convention were attempting merely to formalize and 
perpetuate an existing status, and not to create a new one, is found in the use in relation to the exercise of its 
functions by the Protecting Power of such terms as "mediation" (Art. 31) and "good offices" (Art. 87). 

17. Ch. 2 of the Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War 
on Land, 36 Stat. 2277; Treaty Series, No. 539; 2 AJ.I.L. Supp. 90 (1909). 

18. The U.S.S.R. took the position that, as it was a party to the Fourth Hague Convention of 1907, the 
Annex to which, it asserted, covered "all the main questions of the regime of captivity" (but not, as has 
previously been pointed out in note 8 above, the question of the designation or functions of the Protecting 
Powers), there was no need for it to consider an Italian proposal to apply reciprocally the provisions of the 
1929 Convention (Report of the International Committee of the Red Cross on its Activities during the Second 
World War (hereinafter referred to as ICRC Report), Vol. I, p. 412). Whilejapan stated its intention to "apply 
this Convention mutatis mutandis, to all prisoners of war" (ibid. 443), the Protecting Powers were never 
permitted to function in a manner even remotely resembling their manner of functioning in the territories" 
of most of the other belligerents. As a result of the foregoing, and of the disappearance of many Powers of 
Origin during the course of hostilities, the ICRC estimates that during World War II approximately 70% of 
all prisoners of war were deprived of the services of a Protecting Power. De la Pradelle, op. cit. 226. Thus, 
Germany denied the status of states to Poland, Yugoslavia, France and Belgium (after the 1940 armistices), 
Free France, and Italy (after Mussolini's overthrow in 1943), and refused to permit the intervention of 
Protecting Powers on behalf of their captured personnel. Pictet, "La Croix-Rouge et les Conventions de 
Geneve," in 76 Hague Academy Recueil des Cours 5, 87 (1950, I). 

19. The 1949 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter referred 
to as the 1949 Convention), 6 U.S. Treaties 3316; 75 U.N. Treaty Series 135 (I: 972); 47 AJ.I.L. Supp. 119 
(1953). There were signed, on the same day, three other conventions in which, for the first time in other than 
a prisoner-of-war convention, references were made to Protecting Powers: Art. 8 and others of the 1949 
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the 
Field (the successor to the 1929 Red Cross Convention mentioned in note 15 above), 6 U.S. Treaties 3114; 
75 U.N. Treaty Series 31 (I: 970); Art. 8 and others of the 1949 Geneva Convention for the Amelioration of 
the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U.S. Treaties 
3217; 75 U.N. Treaty Series 85 (I: 971); and Art. 9 and others of the 1949 Geneva Convention Relative to 
the Protection of Civilian Persons in Time of War, 6 U. S. Treaties 3516; 75 U.N. Treaty Series 287 (I: 973); 
50 AJ.I.L Supp. 724 (1956). This latter convention will undoubtedly prove of major importance in extending 
the functions of the Protecting Power in any future international conflict. 

20. References to the Protecting Power are contained in 36 of its 132 substantive articles (4, 8, 10, 11, 
12, 23, 56, 58, 60, 62, 63, 65, 66, 68, 69, 71, 72, 73, 75, 77, 78, 79, 81, 96, 98, 100, 101, 104, 105, 107, 108, 
120, 121, 122, 126, and 128) as well as in two of its Annexes The basic charter for the Protecting Power is 
contained in Art. 8, which reads: 



Protecting Power 49 

"The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting 
Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting 
Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals 
or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with 
which they are to carry out their duties. 

"The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or 
delegates of the Protecting Powers. 

"The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under 
the present Convention. They shall, in particular, take account of the imperative necessities of security of the 
State wherein they carry out their duties." 

21. Le Comite International de la Croix-Rouge et le Conflit de Coree: Recueil de Documents, Vol. I, 
p. 16 (1952). 

22. The UN. Command permitted the ICRC to perform its usual functions with respect to the 
Communist prisoners of war held by the UNC. Pictet, Commentary 546. As we shall see many of these 
functions parallel, or may be substituted for, those of a Protecting Power. Unfortunately, all efforts of the 
ICRC to act north of the batde line were repulsed by the Communists. Treatment of British Prisoners of War 
in Korea 33-34 (British Ministry of Defence, 1955). 

23. Up to the end of 1959 there had been 77 ratifications of, and accessions to, these conventions. 
International Committee of the Red Cross, Annual Report, 1959, at p. 45 (1959). These include all of the 
more important Powers except Canada and the Republic of China. The use of the institution of the Protecting 
Power has since been resorted to in the Convention for the Protection of Cultural Property in the Event of 
Armed Conflict, signed at The Hague on May 14, 1954 (249 U.N. Treaty Series 215 (I: 3511)), where it is 
adopted as a means of overseeing the protection of inanimate objects — which is, actually, merely a variation 
of the protection furnished historically by the Protecting Power, a very large part of its energies having once 
been directed towards the protection of the embassy buildings and diplomatic archives of the Protected Power. 

24. As was aptly stated by one author: "What happened was that an existing usage was taken, and 
transformed into a regulation. It was the organ which created the function." Siordet, op. cit. 3. 

25. It must at all times be borne in mind that the Protecting Power is not a general agent of the Power of 
Origin. In his book, The Present Law of War and Neutrality (1954), Castren defines the over-all relationship 
between these two Powers as follows (at p. 92): 

"The protecting Power does not act in its own name but rather as a kind of caretaker or intermediary. 
Nevertheless, it acts independently in so far as the State whose interests it protects cannot demand, but only 
request, it to perform certain services, and the protecting Power itself decides the way in which it discharges 
its mission. Nor may a belligerent give instructions to those organs of the protecting Power which carry out 
this mission. Instead, requests to the protecting Power have to be made through diplomatic channels. The 
protecting Power may refuse to act when compliance with a request would be contrary to its own interests 
or infringe the lawful right of the enemy State." 

26. Siordet states that the designation of a Protecting Power is no longer optional but is now "quasi 
obligatoire" ("De l'Application et du Controle des Conventions de Geneve de 1949," in 1956 Revue 
Internationale de la Croix-Rouge 464, 468); that it is now put in the "imperative form" (The Geneva 
Conventions of 1949: The Question of Scrutiny 36); and that in performing its mission the Protecting Power 
is no longer the special representative of one of the parties, but is "the representative of all the Contracting 
Parties to the Convention" (ibid.). 

27. This is the step which the United States apparently failed to take when it was requested to perform 
the functions of the Protecting Power for Great Britain during the Boer War. See discussion above. 

28. The 1 949 Convention contains no provisions with respect to the qualifications of a Protecting Power, 
the method of designation, etc., leaving these problems for setdement under general international law. 
Heckenroth, Les Puissances Protectrices et les Conventions de Geneve 62 and 224 (unpublished thesis, 
Universite d'Aix-Marseille, 1951). This solution will work until one belligerent arbitrarily elects to deny its 
consent to every neutral nominated by its enemy. In the light of the adamant refusal of the U.S.S.R. to permit 
any type of inspection to take place on its territory during peacetime, it seems unlikely that such activity would 
be permitted in time of war, even though the U.S.S.R. participated actively in the drafting of the 1949 Geneva 
Conventions and has ratified them, as have all of its satellites, without any reservations as to Art. 8. 

29. Franklin, op. cit. 164-165. A similar conclusion is reached in Pictet, Commentary 95-96, wherein this 
statement appears: 

"It became more and more common for these neutral Powers to find themselves responsible for 
representing the respective interests of two opposing Parties at one and the same time. This gave them additional 
authority, and incidentally altered their role; for once a Power represented the interests of two opposing 
belligerents, it became not so much the special representative of each of them, as the common agent of both, 



50 Levie on the Law of War 

or a kind of umpire. This enabled it to bring directly into play that powerful instrument, the argument of 
reciprocity, to obtain the improvements desired." 

In 1945 Switzerland alone represented 34 belligerents, and in many cases it represented opposing 
belligerents in the territory of each other. Eroglu, op. cit. 144-148. 

30. For some of these possible situations see Siordet, op. cit. 49-53; and Heckenroth, op. cit. 229-236. 

31. The French Delegation strongly urged that a provision be included in the 1949 Convention setting 
up an international body to perform the functions of Protecting Powers in the absence of the latter (Final 
Record, Vol. II B, p. 27; ibid., Vol. Ill, pp. 30-31). The substance of this proposal was included in Resolution 
2 adopted by the Diplomatic Conference (ibid., Vol. I, p. 361), but, as far as the writer has been able to ascertain, 
no steps have been taken, or are contemplated, to implement the resolution. The U.S.S.R. opposed both the 
original French proposal and the adoption of the resolution, stating as to the latter that it "sees no need to 
consider this question or to create such a body, since the problem of the Protecting Powers has been satisfactorily 
solved by the Conventions established in the present Conference." Declaration made by the Delegation of 
the U.S.S.R. at the time of the signing of the conventions. Ibid., Vol. I. n. 201. 

32. Pictet, Commentary 117-118. All of the Communist countries (and Portugal) made reservations to 
Art. 10 to the effect that they would not recognize as legal "requests by the Detaining Power to a neutral State 
or to a humanitarian organization, to undertake the functions performed by a Protecting Power, unless the 
consent of the Government of the country of which the prisoners of war are nationals is obtained." While 
there is a not unnatural tendency to view with suspicion this position taken almost uniquely by the U.S.S.R. 
and its satellites (see, for example, Brockhaus, "Sowjetunion und Genfer Kriegsgefangenen-Konvention von 
1949," 2 Ost-Europa Recht 286, 291 (1956)), it appears to have a valid basis. If there is an existing Power of 
Origin, not only is its consent to the designation of a Protecting Power to act on its behalf essential, but it has 
the right to make the selection itself in the first place! And the statements made at the Diplomatic Conference 
by Soviet representatives Morosov (Final Record, Vol. II B, pp. 29 and 351) and Sokirkin (ibid., p. 347) make 
it clear that they merely desired to limit specifically the right of the Detaining Power to select a substitute for 
the Protecting Power to those cases where there is no existing Power of Origin — a limitation as to which 
there should have been no dispute. It is to be hoped that by overruling the Soviet thesis the Diplomatic 
Conference did not establish the proposition that a Detaining Power may, on its own, select and designate a 
substitute for a Protecting Power even though there is a Power of Origin in being. 

33. Neither the 1929 Convention nor the working (Stockholm) draft used at the Diplomatic Conference 
includes the term "consular" in specifying the authorized representatives of the Protecting Power. The 
authorization for the Protecting Power to use this category of personnel as representatives was proposed by 
Australia and was unanimously approved. Final Record, Vol. II B, p. 58. 

34. Janner, op. cit. 52. 

35. Siordet, op. cit. 21. A provision of the working (Stockholm) draft used at the Diplomatic Conference 
would have required the Detaining Power to give "serious grounds" for any refusal to approve the nomination 
of a non-career individual by the Protecting Power. Final Record, Vol. I, p. 13. This proposal was equally 
lacking in logic, since a state need give no reasons for refusing to agree to the assignment to a post in its territory 
of a member of the diplomatic or consular service of the Protecting Power or for declaring such an individual 
persona non grata. The provision was deleted at Geneva. Ibid., Vol. II B, pp. 58 and 110. 

36. De la Pradelle, "Le Controle de 1 'application des Conventions Humanitaires en cas de Conflit arme," 
in 2 Annuaire Francais de Droit International 343, 344 (1956). 

37. Letter of Instructions of Secretary of State William Jennings Bryan, dated Aug. 17, 1914 (9 A.J.I.L. 
Supp. 118 (1915)). See also, Franklin, Op. cit. 114; United States Foreign Service Manual, Vol. 2, Consular 
Affairs, pars. 924.1 and 931. 

38. "It is not the function of the Protecting Power to command or to overrule; it is its function to observe, 
to comment, to make representations, and to send reports to the outside world. If we are faced with an 
unscrupulous belligerent, the presence of the Protecting Power and the ability of the Protecting Power to 
examine what is going on and to observe is the only preventive measure which we have." Statement of 
Quentin-Baxter, representative of New Zealand, at the 1949 Diplomatic Conference, Final Record, Vol. II 
B, p. 344. 

39. Thus, Heckenroth, op. cit. 135, and Janner, op. cit. 52, have each listed seven separate categories of 
functions of the Protecting Power, but the lists coincide with respect to only four functions! Still a third 
functional listing appears in Pictet, Commentary 98-99. 

40. Yingling and Ginnane loc. cit. 397. In the British Army Manual of Military Law (Part III, The Law 
of War on Land, 1958) 92, the Protecting Power is termed "the principal organ, apart from the Contracting 
Parties themselves, for ensuring the observance of the Convention." Part III of the Manual was largely the 
work of the late Sir Hersch Lauterpacht. 

41. Final Record, Vol. II B, p. 110. 



Protecting Power 51 

42. Ibid.; Siordet, op. cit. 24-25. 

43. The right of visitation granted by Art. 126 is reiterated in Arts. 56 (labor detachments), 98 (prisoners 
undergoing disciplinary punishment), and 108 (prisoners undergoing judicial punishment). 

44. Pictet, Commentary 571. 

45. See note 19 above. 

46. A similar restriction is contained in Art. 126 of the 1949 Convention with respect to visits to places 
where prisoners of war may be. This is the only area in which the 1949 Convention specifically permits the 
activities of the Protecting Power to be restricted by the Detaining Power. While it is, of course, a very 
important one, it is not believed that a Detaining Power could really justify the imposition of such a restriction 
except in very rare cases, such as prohibiting visits to extremely forward collecting points during the actual 
course of an attack. 

47. The proponents of the distinction between the two pairs of conventions argued that it was "obvious 
and reasonable that the activities of a Protecting Power in sea warfare and on the field of battle must be 
restricted, "but that as to the Prisoner of War and Civilian Conventions" "the vital force which animates those 
rules and gives them effect is the presence of the Protecting Power." Final Record, Vol. II B, p. 344. The 
pessimism which may be apparent in the text is occasioned by the fact that the U.S.S.R. took the position 
that, even without such a restrictive limitation in the convention, it would exist in fact. Ibid. 345. 

48. Pictet, Commentary on the Geneva Convention for the Amelioration of the Condition of the 
Wounded and Sick of Armed Forces in the Field 101 (1952). Even there it is admitted that "this is precisely 
what it [the Protecting Power] would, in such a case, be debarred from doing. It will only be possible to show 
after the event whether or not the restriction was justified." In Pictet, Commentary, published 8 years later, 
a much more realistic approach is taken (at p. 611): 

"If they are to justify the prohibition of visits, military necessities must be imperative. Whether they are 
or not is a matter for the Detaining Power alone to decide and the right of supervision of the Protecting 
Powers is restricted by this exercise of sovereignty. Such a decision must not be lightly taken, however, and 
any prohibition of visits must be an exceptional measure." 

49. In Pictet, Commentary, he. cit., the following remedial procedure is suggested: 

"The Protecting Powers and the International Committee will have the right to bring the temporary 
nature of the prohibition to the notice of the Detaining Power and, after a certain length of time, to request 
it to raise all restrictions. Moreover, the Protecting Power will be able to check afterwards whether the 
prohibition of visits has been used by the Detaining Power to violate the Convention. In any case, it is not in 
the interests of the Detaining Power to misuse this reservation, because it would very soon be suspected of 
deliberately violating the Convention by evading supervision by qualified witnesses." 

50. As stated in the ICRC Report, Vol. I, p. 39: 

"Despite partial overlapping, the functions of the Protecting Power are fundamentally dissimilar in kind 
and extent [from those of the ICRC]. The Protecting Power is the mandatory of one or both belligerents, 
with competency to protect the rights and interests of the States from which it derives authority. The 
Committee is concerned exclusively with humanitarian tasks; its functions are not limited to those which are 
guaranteed by law, but embrace such enterprises in the interests of humanity as appear essential, or which are 
justified through a request made by a belligerent." 

51. Ibid. 

52. In Pictet, Commentary 119, the following statement appears: 

"The Convention in this case [paragraph 3 of Article 10] no longer uses the words 'undertake the functions 
performed by a Protecting Power,' but speaks only of 'humanitarian functions.' The distinction is logical. 
There is no longer any question of a real substitute, and a humanitarian organization cannot be expected to 
fulfil all the functions incumbent on a Protecting Power by virtue of the Conventions." See also Final Record, 
Vol. II B, pp. 61 and 63. 

53. See above. 

54. ICRC Report, Vol. I, pp. 342-343. At that time a prisoners' representative was known as a "man of 
confidence." In the 1929 Convention they were called "agents." 

55. See, for example, Art. 78, wherein specific provision is now contained permitting individual 
complaints to be transmitted to the Protecting Power either directly, as had been provided in Art. 42 of the 
1929 Convention, or through the medium of the prisoners' representative. Although Art. 42 of the 1929 
Convention, the predecessor of Art. 78 of the 1949 Convention, made no mention of the ICRC as an 
authorized recipient of complaints from prisoners of war, the ICRC took the position that "it is, according 
to the spirit of the [1929] Convention, undoubtedly meant to be placed, in this respect, on the same footing 
as the Protecting Powers." ICRC Report, Vol. I, p. 341. This conclusion is subject to dispute and, in view 
of the fact that Art. 78 of the 1949 Convention again omits all reference to the ICRC, it would, in interpreting 
that article, now be even more difficult to accept the ICRC position. Certainly, if such had been the intention 



52 Levie on the Law of War 

of the drafters, they could easily have attained their objective by merely including the ICRC in the article, 
along with the Protecting Power, as they did in a number of other articles. Their failure to do so in the light 
of the announced ICRC position strongly militates against the ICRC interpretation. 

56. Castren, op. cit. 95; Pictet, Le Droit International et l'Activite du Comite International de la 
Croix-Rouge en temps de Guerre 25 (1943). It is more probable that, as in World War II, it will be the 
Detaining Power which will object where activities of the ICRC appear to duplicate those being performed 
by the Protecting Power. That the ICRC does not consider the Protecting Power to be a rival, but rather 
another means of making the life of a prisoner of war a little less miserable, is apparent from the communication 
sent by its President early in the Korean conflict in which he said: "The International Committee views, in 
the activities of the 'Protecting Powers,' a forceful instrument for insuring full implementation of the Geneva 
Conventions and an always desirable corollary to the activities which the Committee itself undertakes." Le 
Comite International de la Croix-Rouge et le Conflit de Coree: Recueil de Documents, Vol. I, p. 32. 

57. Heckenroth, op. cit. 229. 

58. Ibid. 222. 

59. In Pictet, Wounded and Sick Commentary 101-102, the following statement appears: "As it stands, 
Article 8 is not perfect, far from it. But we have to consider the huge advance which it represents in international 
humanitarian law. We have to realize that, to achieve this much, the diplomats assembled in Geneva had to 
cope with divergent opinions; they had to reconcile the claims of the sovereignty of their respective countries 
with the claims of humanity; and they had to harmonize two opposed conceptions of the role of the Protecting 
Power, viewed by some as their agent (of whom one demands the maximum), by others as the agent of the 
enemy (to whom one accords the minimum )." 






Ill 

The Employment of Prisoners of War 

57 American Journal of International Law 318 (1963)* 



From the days when the Romans first came to appreciate the economic 
value of prisoners of war as a source of labor, and began to use them as 

1 
slaves instead of killing them on the field of batde, until the drafting and 

adoption by a comparatively large number of members of the then family of 
sovereign states of the Second Hague Convention of 1899, no attempt to 
regulate internationally the use made of prisoner-of-war labor by the Detaining 
Power had been successful. The Regulations attached to that Convention 
dealt with the subject in a single article, as did those attached to the Fourth 
Hague Convention of 1907 which, with relatively minor changes, merely 
repeated the provisions of its illustrious predecessor. A somewhat more extensive 
elaboration of the subject was included in the 1929 Geneva Convention relative 
to the Treatment of Prisoners of War (hereinafter referred to as the 1929 
Convention). And, although still far from perfect, the provisions concerning 
prisoner-of-war labor contained in the 1949 Geneva Convention relative to the 
Treatment of Prisoners of War (hereinafter referred to as the 1949 Convention) 
constitute an enlightened attempt to legislate a fairly comprehensive code 
governing the major problems involved in the employment of prisoners of war 
by the Detaining Power. The purpose of this study is to analyze the provisions 
of that code and to suggest not only how the draftsmen intended them to be 
interpreted, but also how it can be expected that they will actually be 
implemented by Detaining Powers in any future war. 

While there are very obvious differences between the employment of workers 
available through a free labor market and the employment of prisoners of war, 
even a casual and cursory study will quickly disclose a remarkable number of 
similarities. The labor union which is engaged in negotiating a contract for its 
members is vitally interested in: (1) the conditions under which they will work, 
including safety provisions; (2) their working hours and the holidays and 
vacations to which they will be entitled; (3) the compensation and other 
monetary benefits which they will receive; and (4) the grievance procedures 
which will be available to them. (Of course, in each industry there will also be 
numerous items peculiar to that industry.) Because of the uniqueness of 

* Reprinted in 23 MIL. L. REV. 41 (1964). 



54 Levie on the Law of War 

prisoner-of-war status, the 1949 Diplomatic Conference which drafted the latest 
prisoner-of-war convention felt it necessary, in negotiating for the benefit of 
future prisoners of war, to continue to cover certain items in addition to those 
listed above, such as the categories of prisoners of war who may be compelled 
to work (a problem which does not normally exist for labor unions in a free 
civilian society, although it may come into existence in a total war economy); 
and, collateral to that, the specific industries in which they may or may not be 
employed. Inasmuch as these latter problems lie at the threshold of the utilization 
of prisoner-of-war labor, they will be considered before those enumerated 
above. 

Before proceeding to a detailed analysis of the labor provisions of the 1949 
Convention, and how one may anticipate that they will operate in time of war, 
it seems both pertinent and appropriate to survey briefly the history of, and the 
problems encountered in, the utilization of prisoner-of-war labor during the 
past century. That period is selected because its earliest date represents the point 
at which cartels for the exchange of prisoners of war had ceased to have any 
considerable importance and yet belligerents were apparently still unaware of 
the tremendous potentiality of the economic asset which was in their hands at 
a time of urgent need. 

The American Civil War (1861-1865) was the first major conflict involving 

large masses of troops and large numbers of prisoners of war in which exchanges 

1 1 

were the exception rather than the rule. As a result, both sides found 
themselves encumbered with great masses of prisoners of war; but neither side 
made any substantial use of this potential pool of manpower, although both 

suffered from labor shortages. At This was so, despite the statement in Lieber's 

13 
Code that prisoners of war "may be required to work for the benefit of the 

captor's government, according to their rank and condition," and despite the 

valiant efforts of the Quartermaster General of the Union Army, who sought 

unsuccessfully, although fully supported by Professor Lieber, to overcome the 

official reluctance to use prisoner-of-war labor. The policy of the Federal 

Government was that prisoners of war would be compelled to work "only as 

an instrument of reprisal against some act of the enemy." 

In 1874 an international conference, which included eminent representatives 

from most of the leading European nations, met in Brussels at the invitation of 

the Tsar of Russia "in order to deliberate on the draft of an international 

agreement respecting the laws and customs of war." This conference prepared 

a text which, while never ratified, constituted a major step forward in the effort 

to set down in definitive manner those rules of land warfare which could be 

considered to be a part of the law of nations. It included, in its Article 25, a 

provision concerning prisoner-of-war labor which adopted, but considerably 

amplified, Lieber's single sentence on the subject quoted above. This article was 






Employment of Prisoners 55 

subsequently adopted almost verbatim by the Institute of International Law 
when it drafted Articles 71 and 72 of its "Oxford Manual" in 1880; and it 
furnished much of the material for Article 6 of the Regulations attached to the 
Second Hague Convention of 1899 and the same article of the Regulations 
attached to the Fourth Hague Convention of 1907. 

Despite all of these efforts, the actual utilization of prisoner-of-war labor 
remained negligible during the numerous major conflicts which preceded World 
War I. This last was the first modern war in which there was total economic 
mobilization by the bellige rents; and there were more men held as prisoners of 
war and for longer periods of time than during any previous conflict. 

Nevertheless, it was not until 1916 that the British War Office could overcome 

17 
opposition in the United Kingdom to the use of prisoner-of-war labor; and 

after the entry of the United States into the war, prisoners of war held in this 

country were not usefully employed until the investigation of an attempted mass 

escape resulted in a recommendation for a program of compulsory 

prisoner-of-war labor, primarily as a means of reducing disciplinary problems. 

When the belligerents eventually did find it essential to make use of the 

tremendous prisoner-of-war manpower pools which were available to them, 

the provisions of the Regulations attached to the Fourth Hague Convention of 

1907 proved inadequate to solve the numerous problems which arose, thereby 

necessitating the negotiation of a series of bilateral and multilateral agreements 

between the various belligerents during the course of the hostilities. Even so, 

the Report of the "Commission on the Responsibility of the Authors of the 

War and on Enforcement of Penalties," created by the PreHminary Peace 

Conference in January, 1919, listed the "employment of prisoners of war on 

unauthorized works" as one of the offenses which had been committed by the 

20 
Central Powers during the war. 

The inadequacies in this and other areas of the Fourth Hague Convention of 

1907, revealed by the events which had occurred during the course of World 

• 21 
War I, led to the drafting and ratification of the 1929 Convention. It was this 

Convention which governed many of the belligerents during the course of 

22 
World War II; but once again international legislation based on the experience 

gained during a previous conflict proved inadequate to control the more serious 

and complicated situations which occurred during a subsequent period of 

hostilities. Moreover, the proper implementation of the provisions of any 

agreement must obviously depend in large part upon the good faith of the parties 

thereto — and belligerents in war are, perhaps understandably, not motivated to 

be unduly generous to their adversaries, with the result that frequently decisions 

are made and policies are adopted which either skirt the bounds of legal propriety 

or actually exceed such bounds. The utilization of prisoner-of-war labor by the 

Detaining Powers proved no exception to the foregoing. Practically all prisoners 



56 Levle on the Law of War 

24 
of war were compelled to work. To this there can be basically no objection. 

But during the course of their employment many of the protective provisions 

of the 1929 Convention (and of the Fourth Hague Convention of 1907 which 

it complemented) were either distorted or simply disregarded. 

The leaders of Hitler's Nazi Germany were aware of its shortage of labor and 
appreciated the importance of the additional pool of manpower afforded by 
prisoners of war as a source of that precious wartime commodity. Nevertheless, 
for a considerable period of time they permitted their ideological differences 
with the Communists to overcome their common sense and urgent needs. 
And in Japan, which, although not a party to the 1929 Convention, had 
committed itself to apply its provisions, those relating to prisoner-of-war labor 
were among the many which were assiduously violated. 

Like the other belligerents, the United States found an urgent need for 
prisoner-of-war labor, both within its home territory and in the rear areas of the 
embatded continents. One study even goes so far as to assert that the use of 
Italian prisoners of war in the Mediterranean theater was the only thing which 
made it possible for the United States to sustain simultaneously both the Italian 
campaign and the invasion of Southern France, thereby hastening the downfall 
of Germany. ' Similarly, it was found that in the United States the use of 
prisoners of war for work at military installations, and in agriculture and other 

authorized industries, served to release both Army service troops and civilians 

28 
for other types of work which were more directly related to the war effort. 

While the benefits of prisoner-of-war labor to the Detaining Power are 

patent, benefits flowing to the prisoners of war themselves as a result of their use 

in this manner are no less apparent. The reciprocal benefits resulting from the 

proper use of prisoner-of-war labor is well summarized in the following 

statement: 

The work done by the PW has a high value for the Detaining Power, since it 
makes a substantial contribution to its economic resources. The PW's home 
country has to reckon that the work so done increases the war potential of its 
enemy, maybe indirecdy; and yet at the same time it is to its own profit that its 
nationals should return home at the end of hostilities in the best possible state of 

health. Work under normal conditions is a valuable antidote to the trials of 

29 
captivity, and helps PW to preserve their bodily health and morale. 

During the close reappraisal of the 1929 Convention which followed World 
War II, the provisions thereof dealing with the labor of prisoners of war were 
not overlooked; and the Diplomatic Conference which met in Geneva in 1949 
redrafted many of those provisions of the 1929 Convention in an effort to plug 
the loopholes which the events of World War II had revealed. It is the 1949 
Convention resulting from this work which will be used in the review and 



Employment of Prisoners 57 

analysis of the rights and obligations of belligerents and prisoners of war in any 
future conflict insofar as prisoner-of-war labor is concerned. 

Categories of Prisoners of War Who May be Compelled to Work 

In general, Article 49 of the 1949 Convention provides that all prisoners of 
war, except commissioned officers, may be compelled to work. However, this 
statement requires considerable elaboration and is subject to a number of 
limitations. 

a. The Detaining Power is specifically limited in that it may compel only 
those prisoners of war to work who are physically fit, and the work must be of 
a nature to maintain them "in a good state of physically and mental health." In 
determining physical fitness, it is prescribed that the Detaining Power must take 
into account the age, sex, and physical aptitude of each individual prisoner of 
war. It may be assumed that these qualities are to be considered not only in 
determining whether a prisoner of war should be compelled to work but also 
in determining the type of work to which the particular prisoner of war should 
be assigned. For example, women (and it must be accepted that in any future 
major war there will be many female prisoners of war) should not be given tasks 
requiring the lifting and moving of heavy loads; and, frequendy, men who are 
physically fit to work may not have the physical aptitude for certain jobs by 
reason of their size, weight, strength, age, lack of experience, et cetera. It 
would appear that the provisions of Article 49 of the 1949 Convention require 
the Detaining Power, within reasonable limits, to assure the assignment of the 
proper man to the job. 

Moreover, under the provisions of Articles 31 and 55 of the 1949 Convention, 
the determination of physical fitness must not only be made by medically 
qualified personnel and at regular monthly intervals, but also whenever the 
prisoner of war considers himself physically incapable of working. It should be 
noted that the first of the cited articles is a general one which requires the 
Detaining Power to conduct thorough medical inspections, monthly at a 
minimum, primarily in order to supervise the general state of health of the 
prisoners of war and to detect contagious diseases; while the second, which calls 
for a medical examination at least monthly, is intended to verify the physical 
fitness of the prisoner of war for work, and particularly for the work to which 
he is assigned. It is evident that one medical examination directed 

simultaneously towards both objectives would meet the obligations thus 

32 
imposed upon the Detaining Power. 

The provision of Article 55 which authonzes a pnsoner of war to appear 

before a medical board whenever he considers himself incapable of working has 

grave potentialities. It can be expected that well-organized prisoners of war, 

intent upon creating as many difficulties as possible for the Detaining Power, 



58 Levie on the Law of War 

will be directed by their anonymous leaders to report themselves en masse and 
at frequent intervals as being incapable of working and to request that they be 
permitted to appear before the medical authorities of the camp. Is the Detaining 
Power to be helpless, if thousands of prisoners of war, many more than can be 
examined by available medical personnel, all elect at the same time to claim 
sudden physical unfitness and to demand physical examinations? Where the 
Detaining Power has good grounds for believing that such is the situation, and 
this will normally be quite apparent, it would undoubtedly be justified in 
compelling every prisoner of war to work until his turn for examination is 
reached in regular order with the complement of medical personnel which had 
previously been adequate for the particular prisoner-of-war camp. Thus the act 
of the prisoners of war themselves in attempting to turn a provision intended 
for their protection into an offensive weapon, illegal in its inception, would 
actually result in their causing harm to the very people it was intended to 
protect — the truly physically unfit prisoners of war. 

The suggestion has been made that the medical examinations to determine 

physical fitness for work should preferably be made by the retained medical 

33 
personnel of the Power upon which the prisoners of war depend. ' This 

suggestion is based upon the fact that Article 30, in providing for the medical 

care and treatment of prisoners of war, states that they "shall have the attention, 

preferably, of medical personnel of the Power on which they depend and, if 

possible, of their nationality." However, there is considerable difference between 

permitting the medical personnel of the Power on which the prisoner of war 

depends to render medical assistance when he ill or injured, and permitting such 

personnel to say whether or not he is physically qualified to work. It is not 

believed that any Detaining Power would, or that the Convention intended that 

it should, permit retained medical personnel to make final decisions in this 

regard. 

b. In his Instructions, Lieber gave no indication that the labor of all prisoners 
of war, regardless of rank, was not available to the Detaining Power in some 
capacity. However, Article 25 of the Declaration of Brussels and Article 71 of 
the "Oxford Manual" both provided that prisoners of war could only be 
employed on work which would not be "humiliating to their military rank." 
The Second Hague Convention of 1 899 reverted to Lieber's rather vague phrase, 
"according to their rank;" and the Fourth Hague Convention of 1907 went a 
step further, adding to the foregoing phrase the words "officers excepted," 
thereby giving a legislative basis to a practice which had, in fact, already been 
followed. 

Both the 1929 Convention and the 1949 Convention are much more specific 
in this regard, the latter amplifying and clarifying the already more detailed 
provisions of its predecessor. While the first paragraph of Article 49 of the 1949 



Employment of Prisoners 59 

Convention authorizes the Detaining Power to utilize the labor of "prisoners 
of war," the second paragraph of that article specifies that non-commissioned 
officers (NCOs) may only be required to do supervisory work, and the third 
paragraph states that officers may not be compelled to work. It thus becomes 
clear that, as used in the first paragraph of this article, the term "prisoners of 
war" is intended to refer only to enlisted men below the non-commissioned 
officer grade. 

During World War II several problems arose with respect to the identification 
of non-commissioned officers for labor purposes. In the first place, many NCOs 
had had their identification documents taken from them upon capture (probably 
for intelligence purposes) and were thereafter unable to establish their 

"IS 

entitlement to recognition of their grade. On the other hand, a number of 
individuals apparently claimed NCO grades to which they were not actually 

entitled, probably in order to avoid hard labor as well as to be entitled to the 

37 
higher advances in pay. In a number of respects the 1 949 Convention attempts 

to obviate these problems. Thus, Article 21 of the 1929 Convention provided 

only that, upon the outbreak of hostilities, the belligerents would communicate 

to one another the tides and ranks in use in their armies in order to assure 

"equality of treatment between corresponding ranks of officers and persons of 

equivalent status." This was construed as Hmiting the requirements of this 

exchange of information to the ranks and tides of commissioned officers. Article 

43 of the new Convention makes it clear that information is to be exchanged 

concerning the ranks and tides of all persons who fall within the various 

38 
categories of potential prisoners of war enumerated in the Convention. 

Further, during World War II the military personnel of each belligerent carried 

such identification documents, if any, as that belligerent elected to provide to 

its personnel. In addition, as just noted, it was not unusual for capturing personnel 

to seize these documents for whatever intelligence value they might have, 

leaving the prisoner of war with no official identification material. The 1949 

Convention attempts to rectify both of these defects. In Article 17 it provides 

for an identification card containing, as a minimum, certain specified material 

concerning identity; prescribes the desirable type of card; provides that it be 

issued in duplicate; and states that while the prisoner of war must exhibit it upon 

the demand of his captors, under no circumstances may it be taken from him. 

This article, if complied with by the belligerents, should do much to eliminate 

the problem of identifying non-commissioned officers, which existed during 

World War II and which undoubtedly resulted in many incorrect decisions. 

Two other problems connected with the labor of non-commissioned officers 

are worthy of comment. On occasions disputes may arise as to the types of work 

which can be construed as falling within the term "supervisory." The drafters 



60 Levie on the Law of War 

of the 1949 Convention made no attempt to solve this problem. There is much 
merit in the solution offered by one authority, who says: 

The term "supervisory work" is generally recognized as denoting 

administrative tasks which usually consist of directing the other ranks; it obviously 

39 
excludes all manual labor. 

The other problem relates to the right of a non-commissioned officer, who 
has exercised the privilege given him under both conventions to request work 
other than supervisory, thereafter to withdraw his request. During World War 
II different practices were followed by the belligerents. Thus Germany gave 
British non-commissioned officers the right to withdraw their requests; while 
the policy of the United States was not to grant such requests for non-supervisory 
work in the first place, unless they were for the duration of captivity in the 

A 1 

United States. It has been urged that, inasmuch as a non-commissioned officer 
is free to undertake non-supervisory work, he should be equally free to 
discontinue such work, subject to the right of the Detaining Power to provide 

him with such employment only if he agrees to work for a fixed term, which 

42 
may be extended upon his request. This appears to be a logical and practical 

solution to the problem, although it is probably one to which not every 

belligerent will subscribe. 

Officers cannot be required to do even supervisory work unless they request 

it. Once they have done so, the problems relating to their labor are very similar 

to those relating to the voluntary labor of non-commissioned officers, except 

that they were apparently rather generally permitted to discontinue working 

whenever they decided to do so. In general, the labor of officers has not caused 

43 
any material dissension between belligerents. 

c. Scattered throughout the 1949 Convention are a number of other 

provisions specifically limiting the work which may be required of certain 

categories of enemy personnel, prisoners of war or others, held by a Detaining 

Power. Thus, medically trained personnel who, when captured, were not 

assigned to the medical services in the enemy armed forces and who are, 

therefore, ordinary prisoners of war, may be required to perform medical 

functions for the benefit of their fellow prisoners of war; but if they are so 

required, they are entitled to the treatment accorded retained medical 

personnel and are exempted from any other work (Article 32). The same rule 

applies to ministers of religion who were not serving as such when captured 

(Article 36). Prisoners of war assigned to provide essential services in the camps 

of officer prisoners of war may not be required to perform any other work 

(Article 44). And prisoners' representatives may likewise not be required to 

perform any other work, but this restriction applies only "if the accomplishment 



Employment of Prisoners 61 

of their duties is thereby made more difficult" (Article 81). While these various 
provisions are not of very great magnitude in the over-all prisoner-of-war 
picture, they can, of course, be of major importance to the particular individuals 
involved. 

Types of Work Which Prisoners of War May Be Compelled to Perform 

The types of work which prisoners of war may be compelled to perform and 
the industries to which they may be assigned have generated much controversy. 
Long before final agreement was reached thereon at the 1949 Geneva 
Diplomatic Conference, the article of the Convention concerned with the 
subject of authorized labor was termed "the most disputed article in the whole 
Convention, and the most difficult of interpretation." Unfortunately, it 
appears fairly certain that the agreements ultimately reached in this area are 
destined to magnify, rather than to minimize or eliminate, this problem. 

The early attempts to draft rules concerning the categories of labor in which 
prisoners of war could be employed merely authorized their employment on 
"public works which have no direct connection with the operations in the 
theater of war," or stated that the tasks of prisoners of war "shall have nothing 
to do with the military operations." The insufficiency of these provisions 
having been demonstrated by the events of World War I, an attempt at 
elaboration was made in drafting the comparable provisions (Article 31) of the 
1929 Convention, in which were included not only prohibitions against the 
employment of prisoners of war on labor having a "direct relation with war 
operations," but also against their employment on several specified types of work 
("manufacturing and transporting arms or munitions of any kind, or . . . 
transporting material intended for combatant units"). 

During World War II these latter provisions proved no more successful than 
their predecessors in regulating prisoner-of-war labor. The term "direct relation 
with war operations" once again demonstrated itself to be exceedingly difficult 
to interpret in a total war in which practically every economic resource of the 
belligerents is mobilized for military purposes. So each belligerent attempting 
to comply with the labor provisions of the 1929 Convention found itself required 
to make a specific determination in all but the very few obvious cases as to 
whether a particular occupation fell within the ambit of the prohibitions. As 
could be expected, there were many disputed decisions. 

In drafting a proposed new convention aimed at obviating the many 
difficulties which had arisen during the two world wars, the International 
Committee of the Red Cross attempted a new approach to the prisoner-of-war 
labor problem. Instead of specifying prohibited areas in broad and general terms, 
as had been the previous practice, leaving to the belligerents, the Protecting 
Powers, and the humanitarian organizations the decision as to whether a specific 



62 Levie on the Law of War 

task was or was not prohibited, it decided to list affirmatively and with 
particularity the categories of labor in which Detaining Powers would be 

permitted to employ prisoners of war, at least impliedly prohibiting their use in 

52 
any type of work not specifically listed. ' The International Red Cross 

Conference held at Stockholm in 1948, to which this new approach was 

proposed, accepted the idea of affirmatively specifying the areas in which 

prisoners of war could be required to work; but, instead of the enumeration of 

specifics which the Committee had prepared, the Conference substituted general 

terms. ' The Committee was highly critical of this action. At the 1949 

Diplomatic Conference the United Kingdom proposed the substitution of the 

original proposal in place of that contained in the draft adopted at Stockholm, 

and it was this original text, with certain amendments which will be discussed 

later, which ultimately became Article 50 of the 1949 Convention. While 

there is considerable merit to the new approach, the actual phraseology of the 

article leaves much to be desired. 

An analysis of the various provisions contained in Article 50 of the 1949 

Convention and, to the extent possible, a delimitation of the areas covered, or 

probably intended to be covered, by each category of work which a prisoner of 

57 
war may be "compelled" to do, and the problems inherent in each, is in order. 

(1) Camp Administration, Installation or Maintenance. This refers to the 
management and operation of the camps established for the prisoners of war 
themselves; in other words, broadly speaking, it constitutes their own 
"housekeeping." Early in World War II the United States divided all 

prisoner-of-war labor into two classes: class one, that related to their own camps; 

58 
and class two, all other. This distinction still appears to be a valid one. It has 

been estimated that the use of prisoners of war in the United States for the 

maintenance and operation of their own camps and of other military 

installations constituted their major utilization. While this is believed to be 

somewhat of an overstatement, it can be assumed that a very considerable portion 

of them will always be so engaged. However, it can also be assumed that in any 

future major conflict demands for prisoner of- war labor will be so great that 

shortages will exist, requiring that the administration of prisoner-of-war camps 

be conducted on an extremely austere basis. 

(2) Agriculture. This field of prisoner-of-war utilization, with its collateral field 
of food processing, combines with camp administration to account for the labor 
of the great majority of employed prisoners of war. There are no restrictions 
imposed by the Convention on the employment of prisoners of war in 
agriculture, the fact that the product of their labor may eventually be used in 
the manufacture of a military item or be supplied to and consumed by combat 
troops being too remote to permit of, or warrant, restrictions. 



Employment of Prisoners 63 

(3) Production or Extraction of Raw Materials. This category of authorized 
compulsory employment includes activities in such industries as mining, logging, 
quarrying, et cetera. It is one of the areas in which problems are constandy arising 
and in which there are frequent disagreements between belligerents as well as 
between Detaining Powers and Protecting Powers or humanitarian 
organizations. Thus, after the conclusion of World War II the International 
Committee of the Red Cross reported that it was called upon to intervene more 
frequently with respect to prisoners of war who worked in mines than with 
respect to any other problem. 

Inasmuch as the utilization of prisoners of war in this field has been, and 
continues to be, authorized, the problems which arise usually relate to the 
physical ability of the particular prisoner of war to participate in heavy and 
difficult labor of this nature, and to working conditions, including safety 
precautions and equipment, rather than to the fact of the utilization of prisoners 
of war in the specific industry. The first of these problems has already been 
reviewed and the latter will be discussed at length in the general analysis of that 
specific problem. 

(4) Manufacturing Industries (except Metallurgical, Machinery, and Chemical). In 
modern days of total warfare and the total mobilization of the economy of 
belligerent nations, it has become increasingly impossible to state with 
positiveness that any particular industry does not have some connection with the 
war effort. Where the degree of such connection is the criterion for determining 
the permissibility of the use of prisoners of war in a particular industry, as it was 
prior to the 1949 Convention, problems and disputes are inevitable. In this 
respect, by authorizing compulsory prisoner-of-war labor in most manufacturing 
industries and by specifically prohibiting it in the three categories of industries 
which will be engaged almost exclusively in war work, the new Convention 
represents a positive and progressive development in the law of war and has 
probably eliminated many potential disputes. 

During World War II the nature of the item manufactured and, to some 
extent, its intended ultimate destination determined whether or not the use of 
prisoners of war in its manufacture was permissible. Thus, in the United States 
it was determined that prisoners of war could be used in the manufacture of 
truck parts, as these had a civilian, as well as a military, application; but that they 
could not be used in the manufacture of tank parts, as these had only a military 
application. Under the 1949 Convention neither the nature nor the ultimate 
destination nor the intended use of the item being manufactured is material. All 
motor vehicles fall within the category of "machinery" and prisoners of war 
therefore may not be used in their manufacture. On the other hand, prisoners 
of war may be used in a food processing or clothing factory, even though some, 



64 Levie on the Law of War 

or perhaps all, of the food processed or clothing manufactured may be destined 
for the armed forces of the Detaining Power. 

Two sound bases have been advanced for the decision of the Diplomatic 
Conference to prohibit in its entirety the compelling of prisoners of war to work 
in the metallurgical, machinery, and chemical industries: first, that in any general 
war these three categories of industries will unquestionably be totally mobilized 
and will be used exclusively for the armaments industry; and second, that 
factories engaged in these industries will be key objectives of enemy air (and 
now of enemy rocket and missile) operations and would, therefore, subject the 
prisoners of war to military action from which they are entided to be isolated. 
The Diplomatic Conference apparently balanced this total, industry-wide 
prohibition of compulsory labor in the three specified industries against the 
general authorization to use prisoners of war in every other type of 
manufacturing without requiring the application of any test to determine its 
relationship to the war effort. 

It should be borne in mind that the prohibition under discussion is directed 
only against compelling prisoners of war to work in the specified industries. (As 
we shall see, by inverted phraseology, subparagraphs b, c, and f of Article 50 also 
prohibit the Detaining Power from compelling them to do certain other types 
of work where such work has "military character or purpose.") The question 
then arises as to whether they may volunteer for employment in those industries. 
Based upon the discussions at the Diplomatic Conference, it clearly appears 
that the prohibitions contained in Article 50 are not absolute in character and 
that a prisoner of war may volunteer to engage in the prohibited employments, 
just as he is affirmatively authorized by Article 52 to volunteer for labor which 
is "of an unhealthy or dangerous nature." The problem will, of course, arise of 
assuring that the prisoner of war is a true volunteer and that neither mental 
coercion nor physical force has been used to "persuade" him to volunteer to 
work in the otherwise prohibited field of labor. However, the fact that this 
particular problem is difficult of solution (and that the possibility undoubtedly 
exists that some prisoners of war will be coerced into "volunteering") cannot 
be permitted to justify an incorrect interpretation of these provisions of the 
Convention, as to which the indisputable intent of the Diplomatic Conference 
is clearly evidenced by the travaux preparatoires . 

(5) Public Works and Building Operations Wliich Have No Military Character or 
Purpose. With respect to this portion of the subparagraph, it is first necessary to 
determine the meaning to be ascribed to the phrase "military character or 
purpose." This is no easy task. Because the term defies definition in the 
ordinary sense, it will be necessary to define by example. Moreover, the 
discussions at the Diplomatic Conference, unfortunately, provide little that is 
helpful on this problem. 



Employment of Prisoners 65 

A structure such as a fortification clearly has, solely and exclusively, a "military 
character." Conversely, a structure such as a bowling alley clearly has, solely and 
exclusively, a civilian character. The fortification is intended for use in military 
operations; hence it has not only a "military character" but also a "military 
purpose." The bowling alley is intended for exercise and entertainment; hence 
it does not have a "military purpose," even if some or all of the individuals using 
it will be members of the armed forces. 

These examples have been comparatively black and white. Unfortunately, as 
is not unusual, there is also a large gray area. This is especially true of the term 
"military purpose." A structure will usually be clearly military or clearly civilian 
in character; but whether its purpose is military or civilian will not always be so 
easy of determination. A sewer is obviously civilian in character, and the fact 
that it is to be constructed between a military installation and the sewage disposal 
plant does not give it a military purpose. On the other hand, a road is likewise 
civilian in character, but a road leading only from a military airfield to a bomb 
dump would certainly have a military purpose. And a theater is civilian in 
character, but if it is a part of a military school installation and is to be used 
exclusively or primarily for the showing of military training films, then it, too, 
would have a military purpose. However, a theater which is intended solely for 
entertainment purposes, like the bowling alley, retains its civilian purpose, even 
though the audience will be largely military. 

To summarize, if the public works or building operations clearly have a 
military character, prisoners of war may not be compelled to work thereon; if 
they do not have a military character, but are being undertaken exclusively or 
primarily for a military use, then they will usually have a military purpose and 
again prisoners of war may not be compelled to work thereon; while if they do 
not have a military character and are not being built exclusively or primarily for 
a military use, then they have neither military character nor purpose, and 
prisoners of war may be compelled to work thereon, even though there may be 
incidental military use. 

Having determined, insofar as is possible, the meaning of the phrase "military 
character or purpose," let us apply it to some of the problems which have 

heretofore arisen. Although the use of compulsory prisoner-of-war labor in the 

72 
construction of fortifications has long been considered improper, after World 

War II a United States Military Tribunal at Niirnberg found "uncertainty" in 

the law, and held such labor not obviously illegal where it was ordered by 

superior authority and was not required to be performed in dangerous areas. 

Under the 1949 Convention such a decision would clearly be untenable. A 

fortification is military in character and the use of compulsory prisoner-of-war 

labor in its construction is prohibited, no matter what the circumstances or 

location may be. The same is, of course, true of other construction of a uniquely 



66 Levie on the Law of War 

military character such as ammunition dumps, firing ranges, tank obstacles, et 
cetera. On the other hand, bush clearance and the construction of firebreaks in 
wooded areas far from the battle fronts, the digging of drainage ditches, the 
building of local air-raid shelters, and the clearing of bomb rubble from city 
streets are typical of the categories of public works and building operations 
which have neither military character nor purpose. 

If the foregoing discussion has added but little light to the problem, it is hoped 
that it has, at least, focused attention on an area which can be expected to produce 
considerable controversy; and here, too, the problem will be further complicated 
by the question of volunteering. 

(6) Transportation and Handling of Stores Which Are Not Military in Character or 
Purpose. Article 31 of the 1929 Convention prohibited the use of prisoners of 
war for "transporting arms or munitions of any kind, or for transporting material 
intended for combatant units." The comparable provisions of the 1949 
Convention clarify this in some respects and obscure it in others. 

The former provision created problems in the determination of the point of 
time at which material became "intended" for a combatant unit and of the nature 
of a "combatant unit." These problems have now been eliminated, the ultimate 
destination of the material transported or handled no longer being decisive. 

Creating new difficulties is the fact that the problem of the application of the 
amorphous term "military in character or purpose" is presented once again. 
Apparently a prisoner of war may now be compelled to work in a factory 
manufacturing military uniforms or gas masks or camouflage netting, as these 
items are neither made by the three prohibited manufacturing industries nor is 
their military character or purpose material; but once manufactured, a prisoner 
of war may not be compelled to load them on a truck or freight car, as they 
probably have a military character and they certainly have a military purpose. 
Conversely, prisoners of war may not be compelled to work in a factory making 
barbed wire, inasmuch as such a factory is in the metallurgical industry; but they 
may be compelled to handle and transport it where it is destined for use on farms 
or ranches, as it would have no military character or purpose. Surely, the 
Diplomatic Conference intended no such inconsistent results, but it is difficult 
to justify any other conclusions. 

Just as was determined with respect to public works and building operations, 
it is extremely doubtful that the ultimate destination or intended use of the stores 
is, alone, sufficient to give them a military character or purpose. Thus, agriculture 
and food processing are, as has been seen, authorized categories of compulsory 
labor for prisoners of war. The food grown and processed obviously has no 
military character; and the fact that it will ultimately be consumed by members 
of the armed forces, even in a battle area, does not give it a military purpose. 
Accordingly, prisoners of war may be compelled to handle and transport such 



Employment of Prisoners 67 

stores. The same reasoning would apply to blankets and sleeping bags, to tents 
and tarpaulins, to socks and soap. 

In this general category, again, the prohibition is only against compulsion, 
and the prisoner of war who volunteers may be assigned to the work of 
transporting and handling stores, even though they have a military character or 
purpose. And, once again, the problem will arise of assuring that the prisoner of 
war has actually volunteered for the work to which he is assigned. 

(7) Commercial Business, and Arts and Crafts. It is doubtful whether very many 
prisoners of war will be given the opportunity to engage in commercial business. 
The prisoner-of-war barber, tailor, shoemaker, cabinetmaker, et cetera, will 
usually be assigned to ply his trade within the prisoner-of-war camp, for the 
benefit of his fellow prisoners of war as a part of the camp activities and 
administration. However, it is conceivable that in some locales they might be 
permitted to set up their own shops or to engage in their trades as employees of 
civilian shops owned by citizens of the Detaining Power. 

That prisoners of war will be permitted to engage in the arts and crafts is 
much more likely. No prisoner-of-war camp has ever lacked artists, both 
professional and amateur, who produce paintings, wood carvings, metal objects, 
et cetera, which find a ready market, through the prisoner-of-war canteen, 
among the military and civilian population of the Detaining Power. However, 
normally this category of work will be done on spare time as a remunerative 
type of hobby, rather than as assigned labor. 

(8) Domestic Service. The specific inclusion of this category of labor merely 
permits the continuation of a practice which was rather generally followed 
during World War II and which has rarely caused any difficulty, inasmuch as 
domestic services have, of course, never been construed as having a "direct 
relation with operations of war." As long as the domestic services are not required 
to be performed in an area where the prisoner of war will be exposed to the fire 
of the combat zone, which is specifically prohibited by Article 23 of the 1949 
Convention, the type of establishment in which he is compelled to perform the 
domestic service, and whether military or civilian, is not material. 

(9) Public Utility Services Having No Military Character or Purpose. This is the 
third and final usage in Article 50 of the term "military character or purpose." 
Its use here is particularly inept, inasmuch as it is difficult to see how public 

utility services such as gas, electricity, water, telephone, telegraph, et cetera, can, 

77 
under any circumstances, be deemed to have a military character. With respect 

to military purpose, the conclusions previously reached are equally applicable 

here. If the utility services are intended exclusively or primarily for military use, 

they will have a military purpose and the Detaining Power is prohibited from 

compelling prisoners of war to work on them. Normally, however, the same 



68 Levie on the Law of War 

public utility services will be used to support both military and civilian activities 
and personnel and will not have a military purpose. 

(10) Unhealthy, Dangerous, or Humiliating Labor. Article 52 of the 1949 
Convention contains special provisions with respect to labor which is unhealthy, 
dangerous, or humiliating. These terms are not defined and it may be anticipated 
that their application will cause some difficulties and controversies. Nevertheless, 
the importance of the provision cannot be gainsaid. 

Employing a prisoner of war on unhealthy or dangerous work is prohibited 
"unless he be a volunteer." Assigning a prisoner of war to labor which would be 
considered humiliating for a member of the armed forces of the Detaining Power 
is prohibited. No differences can be perceived to have resulted from the use of 
the verb "employed on" in the first instance and "assigned to" in the second. 
Accordingly, it is believed that the omission of the clause "unless he be a 
volunteer" in the case of "humiliating" labor would preclude a prisoner of war 
from volunteering for labor which is considered to be of a humiliating nature 
and that such a clause would be mere surplusage. However, this is probably not 
so. 

Article 32 of the 1929 Convention forbade "unhealthful or dangerous work." 
In construing this provision the United States applied three separate criteria: 
first, the inherent nature of the job (mining, quarrying, logging, et cetera); 
second, the conditions under which it was to be performed (under a tropical 

sun, in a tropical rain, in a millpond in freezing weather, et cetera); and third, 

• 78 

the individual capacity of the prisoner of war. These criteria would be equally 

relevant in applying the substantially similar provisions of Article 52 of the 1949 

Convention. 

It is quite apparent that there are criteria available for determining whether 
a particular job is unhealthy or dangerous and is, therefore, one upon which 
prisoners of war may not be employed. Nevertheless, there will undoubtedly 
be some borderline cases in which disputes may well arise as to the utilization 
of non-volunteer prisoners of war. However, there unquestionably will be more 
jobs in clearly permissible categories than there will be prisoners of war available 
to fill them. Accordingly, the Detaining Power, which is attempting to handle 
prisoners of war stricdy in accordance with the provisions of the Convention, 
can easily avoid disputes by not using prisoners of war on labor of a controversial 
character. 

The third paragraph of Article 52 specifies that "the removal of mines or 
similar devices shall be considered as dangerous labor." By this simple statement 

the Diplomatic Conference, after one of its most heated and lengthy 

80 
discussions, made it completely clear that the employment of prisoners of war 

on mine removal is prohibited unless they are volunteers. The compulsory use 

of prisoners of war on this type of work was one of the most bothersome 



Employment of Prisoners 69 

problems of prisoner-of-war utilization of World War II, particularly after the 
termination of hostilities. 

The application of the prohibition against the assignment of prisoners of war 

to work considered humiliating for members of the armed forces of the 

81 
Detaining Power should cause few difficulties. Certainly the existence or 

non-existence of a custom or rule in this regard in the armed forces of the 

82 
Detaining Power should rarely be a mater of controversy. It is probable that, 

in the main, problems in this area will arise because the standard adopted is that 

applied in the armed forces of the Detaining Power rather than that applied in 

the armed forces of the Power upon which the prisoners of war depend. While 

this decision was indubitably the only one which the Diplomatic Conference 

could logically have reached, it is not unlikely that prisoners of war will find this 

difficult to understand and that there will be tasks which they consider to be 

humiliating, even though the members of the armed forces of the Detaining 

Power do not, particularly where the prisoners of war come from a nation having 

a high standard of living and are held by a Detaining Power which has a 

considerably lower standard. 

Conditions of Employment 

We have so far considered the two aspects of prisoner-of-war labor which 
are peculiar to that status: who may be compelled to work; and the fields of 
work in which they may be employed. Our discussion now enters the area in 
which most nations have laws governing the general conditions of employment 
of their own civilian citizens — laws which, as we shall see, are often applicable 
to the employment of prisoners of war. 

General Working Conditions. Article 51 of the Convention constitutes a fairly 
broad code covering working conditions. Its first paragraph provides that: 

Prisoners of war must be granted suitable working conditions, especially as 
regards accommodation, food, clothing and equipment; such conditions shall not 
be inferior to those enjoyed by nationals of the Detaining Power employed in 
similar work; account shall also be taken of climatic conditions. 

These provisions, several of which derive directly from adverse experiences of 
World War II, are, for the most part, so elementary as to require little exploratory 
discussion. However, one major change in basic philosophy is worthy of note. 
The 1929 Convention provided, in Articles 10 and 11, that the minimum 
standard for accommodations and food for prisoners of war should be that 
provided for "troops at base camps of the detaining Power." This standard was 
equally applicable to working prisoners of war. Article 25 of the 1949 
Convention contains an analogous provision with respect to accommodations 



70 Levie on the Law of War 

for prisoners of war generally — but the quotation from Article 51 given above 
makes it abundantly clear that, as to the lodging, food, clothing, and equipment 
of working prisoners of war, the minimum standard is no longer that of base 
troops of the Detaining Power, but is that of "nationals of the Detaining Power 
employed in similar work. " While this represents a continuation of adherence 
to a national standard, it is probable that the new national standard will be higher 
than the one previously used, inasmuch as workers are frequendy a favored class 
under wartime conditions. 

With regard to a somewhat similar provision contained in the second 
paragraph of the same article, less optimism appears to be warranted. This 
paragraph, making applicable to working prisoners of war "the national 
legislation concerning the protection of labor and, more particularly, the 
regulations for the safety of workers," was the result of a proposal made by the 

U.S.S.R. at the Diplomatic Conference, which received the immediate support 

84 
of the United States and others. This support was undoubtedly premised on 

the assumption that, if adopted, the proposal would increase the protection 

afforded to working prisoners of war. Second thoughts indicate that this 

provision may constitute a basis for reducing the protection which it was 

intended to afford prisoners of war engaged in dangerous employments. The 

International Committee of the Red Cross has found it necessary to point out 

that national standards may not here be applied in such a way as to reduce the 

minimum standards established by the Convention. " It now appears 

unfortunate that the Diplomatic Conference adopted the U.S.S.R. proposal 

rather than the suggestion of the representative of the International Labor 

Organization that it be guided by the internationally accepted standards of safety 

for workers contained in international labor conventions then already in being. 

Moreover, the safety laws and regulations are not the only safety measures which 

are tied to national standards. The third paragraph of Article 51 requires that 

prisoners of war receive training and protective equipment appropriate to the 

work in which they are to be employed "and similar to those accorded to the 

87 
nationals of the Detaining Power."' This same paragraph likewise provides that 

prisoners of war "may be submitted to the normal risks run by these civilian 

workers." Inasmuch as the test as to what are "normal risks" is based upon the 

national standards of the Detaining Power, this provision, too, would appear to 

be a potential breeding ground for disagreement and dispute, particularly as the 

"normal risks" which civilian nationals of the Detaining Power may be called 

upon to undergo under the pressures of a wartime economy will probably bear 

little relationship to the risks permitted under normal conditions. 

The reference to the climatic conditions under which the labor is performed, 

contained in the portion of Article 51 quoted above, is one of the provisions 

88 
deriving from the experiences of World War II. The 1929 Convention 



Employment of Prisoners 71 

provided, in Article 9, that prisoners of war captured "where the climate is 
injurious for persons coming from temperate climates, shall be transported, as 
soon as possible, to a more favorable climate." It is well known that in a large 
number of cases this was not done. The 1949 Convention contains a somewhat 
similar general provision (in Article 22) concerning evacuation; but it was 
recognized that, despite the best of intentions, belligerents will not always be in 
a position to arrange the immediate evacuation of prisoners of war from the 
areas in which they are captured. Accordingly, the Diplomatic Conference 
wrote into the Convention the quoted additional admonition with respect to 
climatic conditions and prisoner-of-war labor. It follows that, where a Detaining 
Power cannot, at least for the time being, evacuate prisoners of war from an 
unhealthy climate, whether tropical or arctic, it must, if it desires to utilize the 
labor of the prisoners of war in that area even temporarily, make due allowances 
for the climate, giving them proper clothing, the necessary protection from 
the elements, appropriate working periods, et cetera. 

Article 51 of the 1949 Convention concludes with a prohibition against 
rendering working conditions more arduous as a disciplinary measure. In other 
words, the standards for working conditions, be they international or national, 
established by the Convention may not be disregarded in the administration of 
disciplinary punishment to a prisoner of war, and it is immaterial whether the 
act for which he is being punished occurred in connection with, or completely 
apart from, his work. Thus, a Detaining Power may not lower safety standards, 
avoid requirements for protective equipment, lengthen working hours, 
withhold required extra rations, et cetera, as punishment for misbehavior. On 
the other hand, "fatigue details" of not more than two hours a day, or the 
withdrawal of extra privileges, both of which are authorized as disciplinary 
punishment, undoubtedly could be imposed, as they obviously do not fall within 
the terms of the prohibition; and the extra rations to which prisoners of war are 
entided under Article 26, when they are engaged in heavy manual labor, could 
undoubtedly be withheld from a prisoner of war who refuses to work, inasmuch 
as he would no longer meet the requirement for entitlement to such extra rations. 

In the usual arrangement contemplated by the Convention for the utilization 
of the labor of prisoners of war, the prisoners, each working day, go from their 
camp to their place of employment, returning to the camp upon the completion 
of their working period. However, another arrangement is authorized by the 
Convention. Thus, where the place at which the work to be accomplished is 
too far from any prisoner-of-war camp to permit the daily round trip, a so-called 
"labor detachment" may be established. These labor detachments, which were 
widely used during World War II, are merely miniature prisoner-of-war camps, 
established in order to meet more conveniently a specific labor requirement. 
Article 56 of the 1949 Convention requires that it be organized and administered 



72 Levie on the Law of War 

in the same manner as, and as a part of, a prisoner-of-war camp. Prisoners of 
war making up a labor detachment are entided to all the rights, privileges, and 

protections which are available under the Convention to prisoners of war 

92 
assigned to, and living in, a regular prisoner-of-war camp. However, the fact 

that local conditions render it impossible to make a labor detachment an exact 

replica of a prisoner-of-war camp does not necessarily indicate a violation of the 

Convention. As long as the provisions of the Convention are observed with 

respect to the particular labor detachment, it must be considered to be properly 

constituted and operated. 

One other point with respect to labor detachments is worthy of note. While 
Article 39 requires that prisoner-of-war camps be under the "immediate 
authority of a responsible commissioned officer belonging to the regular armed 
forces of the Detaining Power," there is no such requirement as to labor 
detachments. Although each labor detachment is under the authority of the 
military commander of the prisoner-of-war camp on which it depends, who 
will, of course, be a commissioned officer, there appears to be no prohibition 
against the assignment of a non-commissioned officer as the immediate 
commander. In view of the large number of labor detachments which will 
probably be established by each belligerent, it is safe to assume that the great 
majority of them will be under the supervision of non-commissioned officers. 

A situation under which the utilization of prisoner-of-war labor will usually, 
although not necessarily, require the establishment of labor detachments is where 
they are employed by private individuals or business organizations. This is the 
method by which most of the many prisoners of war engaged in agriculture will 
probably be administered. During World War II, prisoners of war performing 
labor under these circumstances were frequendy denied the basic living standards 
guaranteed to them by the 1929 Convention. Article 57 of the 1949 Convention 
specifically provides, not only that the treatment of prisoners of war working 
for private employers "shall not be inferior to that which is provided for by the 
present Convention," but also that the Detaining Power, its military authorities, 
and the commander of the prisoner-of-war camp to which the prisoners belong, 
all continue to be responsible for their maintenance, care, and treatment; and 
that these prisoners of war have the right to communicate with the prisoners' 
representative in the prisoner-of-war camp. It remains to be seen whether the 
changes made in the provisions of the applicable international legislation will be 
successful in accomplishing their purpose. 

One problem which may arise in the use of prisoner-of-war labor by private 
employers is that of guarding the prisoners of war. Frequendy, the Detaining 
Power will provide military personnel to guard such prisoners of war. When it 
does so, the problems presented are no different from those which arise at the 
prisoner-of-war camp itself. If paroles have been given to and accepted by the 



Employment of Prisoners 73 

prisoners of war concerned, there are likewise no problems peculiar to the 
situation. But suppose that civilian guards are used. What authority do they 
have to compel a prisoner of war to work if he refuses to do so? Or to prevent 
a prisoner of war from escaping? And to what extent may they use force on 
prisoners of war? 

If a prisoner of war assigned to work for a private employer refuses to do so, 
the proper action to take would unquestionably be to notify the military 
commander of the prisoner-of-war camp to which he belongs. The latter is in 
a position to have an independent investigation made and to impose disciplinary 
or judicial punishment, if and as appropriate. 

If a prisoner of war assigned to work for a private employer who is not 
provided with military guards attempts to escape, the authority of the civilian 
guards is extremely limited. That they may use reasonable force, short of firearms, 
seems fairly clear. That the guards may use firearms to prevent the escape is 
highly questionable. Detaining Powers would be well advised not to assign 
any prisoner of war to this type of labor, where he is to be completely unguarded 
or guarded only by civilians, unless the prisoner of war has accepted parole, or 
unless the Detaining Power has evaluated the likelihood of attempted escape by 
the particular prisoner of war and has determined to take a calculated risk in his 
case. 

It would not be appropriate to leave the subject of conditions of employment 
without at least passing reference to the possibility of special agreements in this 
field between the opposing belligerents. Strangely enough, despite the fact that 
prisoner-of-war labor has been the subject of special agreements (or of attempts 
to negotiate special agreements) between opposing belligerents on a number of 
occasions during both World War I and World War II, and despite numerous 
references elsewhere in the 1949 Convention to the possibility of special 
agreements, nowhere in the articles of the Convention concerned with 
prisoner-of-war labor is there any reference made to this subject. Nevertheless, 
such agreements, provided that they do not adversely affect the rights of prisoners 
of war, may be negotiated under the provisions of Article 6 of the Convention, 
as well as under the inherent sovereign rights of the belligerents. 

Working Hours, Holidays, and Vacations. Article 53 of the 1949 Convention 
covers all aspects of the time periods of prisoner-of-war labor. As to the duration 
of daily work, it provides that (1) this must not be excessive; (2) it must not 
exceed the work hours for civilians in the same district; (3) travel time to and 
from the job must be included; and (4) a rest of at least one hour (longer, if 
civilian nationals receive more) must be allowed in the middle of the day. 

It thus appears that the new Convention contains the same prohibition as its 
predecessor against daily labor which is of "excessive" duration. Here, again, we 
have the application of the national standard, and in an area in which such 



74 Levie on the Law of War 

standard had proved to be disadvantageous to prisoners of war during World 

99 
War II. The Greek Delegation to the Diplomatic Conference attempted to 

obtain the establishment of an international standard — a maximum of eight hours 

a day for all work except agriculture, where a maximum of ten hours would 

have been authorized. This proposal was overwhelmingly rejected. As has 

already been pointed out with regard to other problems, where a national rather 

than an international standard has been adopted, very few nations at war could 

afford to grant to prisoners of war more favorable working conditions than those 

accorded their own civilian citizens. With respect to hours of daily work, it 

must be noted, too, that the limitations contained in the article cannot be 

circumvented by the adoption of piece work, or some other task system, in lieu 

of a specific number of working hours. The Convention specifically prohibits 

102 
rendering the length of the working day excessive by the use of this method. 

The provision for a midday rest of a minimum of one hour is new and is only 
subject to the national standard if the latter is more favorable to the prisoner of 
war than the international standard established by the Convention. It may be 
necessary for the Detaining Power to increase the midday rest period given to 
prisoners of war, if its own civilian workers receive a rest period in excess of 
one hour, but it may not, under any circumstances, be shortened to less than 
one hour. 

Article 53 further provides that prisoners of war shall be entided to a 24-hour 
holiday every week, preferably on Sunday "or the day of rest in their country 
of origin." Except for the quoted material, which was adopted at the request of 
Israel but which should be of equal importance to the pious Moslem, a similar 
provision was contained in the 1929 Convention. This provision is not subject 
to national standards, whether or not the national standard is more liberal. 
And finally, this same article grants to every prisoner of war who has worked 
for one year a vacation of eight consecutive days with pay. This provision is new 
and is of a nature to create minor problems, as, for example, whether normal 
days of rest are excluded from the computation of the eight days, what activity 
is permitted to the prisoner of war during his "vacation," and what he may be 
required to do during this period. However, despite these administrative 
problems, the provision should prove a boon to every person who undergoes a 
lengthy period of detention as a prisoner of war. 

Compensation and Other Monetary Benefits. The 1929 Convention provided, 
in Article 34, that prisoners of war would be "entitled to wages to be fixed by 
agreements between the belligerents." No such agreements were, in fact, ever 

concluded. The comparable provision of the 1949 Convention (Article 62) 

105 
provides for "working pay" in an amount to be fixed by the Detaining Power, 

which may not be less than one-fourth of one Swiss franc for a full working 



Employment of Prisoners 75 

1 0f\ 

day. The amount so fixed must be "fair" and the prisoners of war must be 
informed of it, as must the Protecting Power. 

With regard to the establishment by the Detaining Power of a "fair working 
rate of pay," several matters should be noted. First, no basis can be seen for 
attempting to determine what is "fair" by endeavoring to compare the "working 
pay" of prisoners of war with the wages of civilian workers. There are too many 
diverse and unequal factors involved; and the extremely nominal minimum 
set by the Convention is clearly indicative of the fact that there was no intention 
on the part of the Diplomatic Conference to establish any such relationship. 
Second, while there appears to be nothing to preclude a Detaining Power from 
establishing a fair basic "working rate of pay," and then providing for amounts 
in addition thereto for work requiring superior skill or heavier exertion or greater 
exposure to danger, or as a production incentive, no authority exists for 
establishing different working rates of pay for prisoners of war of different 
nationalities who have the same competence and are engaged in the same types 
of work. And finally, the rate established as "fair" may not thereafter be 
administratively reduced by having a part of it "retained" by the camp 
administration. The authority for this procedure, which was contained in Article 
34 of the 1929 Convention, has been specifically and intentionally deleted from 
the 1949 Convention. 

There is one provision of the new Convention which could render this entire 
subject moot. An individual account must be kept for each prisoner of war. All 
of the funds to which he becomes entitled during the period of his captivity, 
including his working pay, are credited to this account and all of the payments 
made on his behalf or at his request are deducted therefrom (Article 64). Under 
Article 34 of the 1929 Convention it then became the obligation of the 
Detaining Power to deliver to the prisoner of war "the pay remaining to his 
credit" at the end of his captivity. Under Article 66 of the 1949 Convention, 
upon the termination of the captivity of a prisoner of war, it will be the 
responsibility of the Power in whose armed forces he was serving at the time of 
his capture, and not of the Detaining Power, to settle any balance due him. Under 
these circumstances, there appears to be little reason why a Detaining Power 
should not be extremely generous in establishing its "fair working rate of pay." 
In effect, it will, for the most part, merely be creating a future liability on the 
part of its enemy! This factor may result in the negotiation of agreements 
between belligerents fixing mutually acceptable "working rates of pay," despite 
the lack of a specific provision for such agreements in the 1949 
Convention — agreements which, as has been noted, were not reached under 
the 1929 Convention where there was specific provision for them. 

A number of changes have been embodied in the 1949 Convention with 
regard to the types of work which entitle a prisoner of war to working pay. Of 



76 Levie on the Law of War 

major importance is the fact that, while Article 34 of the 1929 Convention 
specifically provided that "prisoners of war shall not receive wages for work 
connected with the administration, management and maintenance of the 
[prisoner-of-war] camps," Article 62 of the present Convention is equally 
specific that prisoners of war "permanently detailed to duties or to a skilled or 
semi-skilled occupation in connection with the administration, installation or 
maintenance of camps" will be entided to working pay. This article also contains 
a specific provision under which non-medical service medical personnel (Article 
32), and retained medical personnel and chaplains (Article 33) are entided to 
working pay. And while the prisoners' representative and his advisers are, 
primarily, paid out of canteen funds, if there are no such funds, these individuals, 
too, are entitled to working pay from the Detaining Power. Finally, because 
enlisted men assigned as orderlies in officers' camps are specifically exempted 
from performing any other work (Article 44), it appears that they should be 
entided to working pay from the Detaining Power. 

What of the prisoner of war who is the victim of an industrial accident or 
contracts an industrial disease and is thereby incapacitated, either temporarily or 
permanently? Does he receive any type of compensation, and, if so, what, when, 
from whom, and how? 

The Regulations attached to the Second Hague Convention of 1899 and to 
the Fourth Hague Convention of 1907 were silent on this problem. The 
multilateral prisoner-of-war agreement negotiated at Copenhagen in 1917 
adopted a Russian proposal which placed upon the Detaining Power the same 
responsibility in this regard that it had towards its own citizens; but the 
British-German agreement, which was negotiated at The Hague in 1918, 
provided merely that the Detaining Power should provide the injured prisoner 
of war with a certificate as to his occupational injury. The procedure adopted 
at Copenhagen was subsequently incorporated in Article 27 of the 1929 

Convention, and in 1940, after some abortive negotiations with the British, 

111 
Germany enacted a law implementing this procedure. The United States 

112 
subsequently established this same policy, but the United Kingdom 

considered that it was only required to furnish the injured prisoner of war all 

113 
required medical and other care. 

Inasmuch as no payments were ever, in fact, made to injured prisoners of war 

114.. 
by the Detaining Powers after their repatriation, it is not surprising that in 

drafting the pertinent provisions of the 1949 Convention the Diplomatic 

Conference replaced the 1929 procedure with one more nearly resembling that 

115 
which had been adopted by the British and Germans at The Hague in 1918. 

It may actually be asserted that there is little difference between the previous 

practice and the present policy. 



Employment of Prisoners 77 

The procedure established by the 1949 Convention is contained in the 
somewhat overlapping provisions of Articles 54 and 68. When a prisoner of 
war sustains an injury 7 as a result of an industrial accident (or incurs an 
industrial disease), the Detaining Power has the obligation of providing him 
with all required care, medical, hospital, and general maintenance during the 
period of his disability and continuation in the status of a prisoner of war. 
The only other obligation of the Detaining Power is to provide the prisoner 
of war with a statement, properly certified, "showing the nature of the injury 
or disability, the circumstances in which it arose and particulars of medical 
or hospital treatment." Also, a copy of this statement must be sent to the 
Central Prisoners of War Agency. This latter action insures its permanent 
availability. 

If the prisoner of war desires to make a claim for compensation while still in 
that status, he may do so, but his claim will be addressed, not to the Detaining 
Power, but to the Power on which he depends and will be transmitted to it 
through the medium of the Protecting Power. The Convention makes no 
provision for the procedure to be followed beyond this point, probably for the 
reason that the problem is a domestic one which would be inappropriate for 
inclusion in an international convention. Nevertheless, it may well be that, in 
the long run, the present policy, by transferring responsibility to the Power upon 
which he depends, upon the repatriation of the prisoner of war, will prove of 
more value to the disabled prisoner of war than the apparently more generous 
policy expressed in the 1929 Convention. 

Grievance Procedures. In general, any prisoner of war who believes that the 
rights guaranteed to him by the 1949 Convention are, in any manner 
whatsoever, being violated in connection with his utilization as a source of labor, 
would have the right to avail himself of any of the channels of complaint 
established by the Convention: to the representatives of the Protecting Power 
(Articles 78 and 126); to the prisoners' representative (Articles 78, 79, and 81); 

and, perhaps, to representatives of the International Committee of the Red Cross 

119 
(Articles 9, 79, 81, and 126). Nevertheless, the Diplomatic Conference felt 

it advisable to include in Article 50 (which lists the classes of authorized labor) 

a specific provision permitting prisoners of war to exercise their right of 

complaint, should they consider that a particular work assignment is in a 

prohibited industry. It is somewhat difficult to perceive the necessity for this 

provision or that it adds anything to the general protection otherwise accorded 

to the prisoner of war by the appropriate provisions of the Convention. In fact, 

the clanger always exists that by this specific provision the draftsmen may have 

unwittingly diluted the effect of the general protective provisions in areas where 

no specific provision has been included. 



78 Levie on the Law of War 

Conclusion 

Utilization of prisoner-of-war labor means increased availability of manpower 
and a reduction in disciplinary problems for the Detaining Power, and an active 
occupation, better health and morale, and, perhaps, additional purchasing power 
for the prisoners of war. It is obvious that both sides will have much to gain if 
all of the belligerents comply with the labor provisions of the 1949 Convention. 

On the whole, it is believed that these labor provisions represent an 
improvement in the protection to be accorded prisoners of war in any future 
conflict. True, they contain ambiguities and compromises which can serve any 
belligerent which is so minded as a basis for justifying the establishment of policies 
which are contrary to the best interests of the prisoners of war detained by it 
and which are probably contrary to the intent of the drafters. However, it must 
be assumed that nations which have ratified or adhered to the 1949 Geneva 
Convention Relative to the Treatment of Prisoners of War, many of which 
were likewise involved in its drafting, will, to the maximum extent within their 
capabilities, implement it as the humanitarian charter which it was intended to 
be. And, in any event, two factors are always present which tend to call forth 

this type of implementation: the presence of the Protecting Power and the 

120 • ■ 

doctrine of reciprocity. Information as to the interpretation and 

implementation of the Convention by a belligerent is made known to the other 

side through the Protecting Powers and thus becomes public knowledge with 

the resulting effect, good or bad, on world public opinion. Policies which, while 

perhaps complying with a strict interpretation of the Convention, are obviously 

overly restrictive in an area where a more humanitarian attitude appears justified 

and could easily be employed, will undoubtedly result in the adoption of an 

equally or even more restrictive policy by the opposing belligerent. Such 

retorsion can easily lead to charges of reprisals, which are outlawed, and thus 

create a situation which, whether or not justified, can only result in harm to all 

of the prisoners of war held by both sides. While there were nations which, 

during World War II, appeared to be disinterested in the effect that their 

treatment of prisoners of war was having on the treatment received by their own 

personnel detained by the enemy, it is to be hoped that in any future war, even 

121 
one which represents the "destruction of an ideology," at the very least, 

concern for the fate of its own personnel will cause each belligerent to apply the 

doctrine pacta sunt servanda scrupulously in establishing policies which 

implement, among others, the labor provisions of the Geneva Prisoner of War 

Convention of 1949. 

Notes 

1. Davis, "The Prisoner of War," 7 A.J.I.L. 521, 523 (1913). 



Employment of Prisoners 79 

2. 32 Stat. 1803; U. S. Treaty Series, No. 403; 1 A.J.I.L. Supp. 129 (1907). 

3. The Detaining Power is the state which holds captured members of the enemy armed forces in a 
prisoner-of-war status. The Power in whose armed forces they were serving at the time of capture is known 
as the "Power upon which they depend." 

4. Part of Art. 76 of Professor Francis Lieber's famous General Orders No. 100, April 24, 1863, 
"Instructions for the Government of the Armies of the United States in the Field," had dealt with this subject 
unilaterally; and provisions with respect thereto had likewise been included in Art. 25 of the Declaration 
drafted at the Brussels Conference of 1874 (2 U. S. Foreign Relations (1875) 1017; 1 A.J.I.L. Supp. 96 (1907)), 
and in Arts. 71 and 72 of the "Oxford Manual" drafted by the Institute of International Law in 1880 (Annuaire 
de l'lnstitut de Droit International, 1881-1882). While these efforts unquestionably influenced in material 
degree the decisions subsequently reached at the international level, none of them constituted actual 
international legislation. 

5. Art. 6 thereof (cited note 2 above) reads: 

"The State may utilise the labour of prisoners of war according to their rank and aptitude. Their tasks 
shall not be excessive, and shall have nothing to do with military operations. 

"Prisoners may be authorised to work for the public service, for private persons, or on their own account. 

"Work done for the State shall be paid for according to the tariffs in force for soldiers of the national 
army employed on similar tasks. 

"When the work is for other branches of the public service or for private persons, the conditions shall 
be settled in agreement with the military authorities. 

"The wages of the prisoners shall go towards improving their position, and the balance shall be paid 
them at the time of their release, after deducting the cost of their maintenance." 

6. 36 Stat. 2277; U. S. Treaty Series, No. 539; 2 A.J.I.L. Supp. 90 (1908). 

7. 47 Stat. 2021; U. S. Treaty Series, No. 846; 27 A.J.I.L. Supp. 59 (1933). 

8. 6 U. S. Treaties 3316; T.I.A.S., No. 3364; 75 U. N. Treaty Series 135 (1:972); 47 A.J.I.L. Supp. 
119(1953). 

9. Arts. 49 through 57 and Art. 62 are the basic articles of the 1949 Convention relating to the subject 
of prisoner-of-war labor. Mention will also be made of a number of other articles which touch on the subject. 

10. The author does not believe in the inevitability of major wars in the future, but he does believe, as 
did the 59 states which sent representatives to the Diplomatic Conference in Geneva in 1949 and the 87 states 
which have since either ratified or adhered to the four Conventions for the Protection ofWar Victims produced 
at that Conference, that, human nature being what it is, the outlawing of war and the existence of a state of 
peace are insufficient reasons for the apathy and attitude of complete disregard of the development of the law 
of war which has characterized many experts in the field of international law. Fortunately, there is evidence 
that a change in this attitude has occurred in recent yean. 

11. A general cartel governing the exchange of prisoners of war was entered into in 1862 (the Dix-Hill 
Cartel, July 22, 1862, War of the Rebellion, Series II, Vol. rV, p. 266 (1899)), but it was not observed to any 
great degree by either side. Lewis and Mewha, History of Prisoner of War Utilization by the United States 
Army, 1776-1945 (hereinafter referred to as Lewis, History), pp. 29-30 (1955). 

12. Lewis, History 27, 41. For a vivid fictional, but factually accurate, picture of this waste of manpower 
in the South, with its resulting evils to the prisoners of war themselves, see Kantor, Andersonville (1955). 

13. Note 4 above. 

14. Lewis, History 37, 38-39. 

15. Preamble, Declaration of Brussels, note 4 above. 

16. Note 4 above. 

17. Belfield, "The Treatment of Prisoners ofWar," 9 Transactions of the Grotius Society 131 (1924). 

18. Lewis, History 57. This was not the case in France, where the American Expeditionary Force had 
started planning for prisoner-of-war utilization even before any were captured, the established policy there 
being that all except officers would be compelled to work. Ibid. 59-62. 

19. See, for example, the Final Act of the Conference of Copenhagen, executed by Austria-Hungary, 
Germany, Rumania, and Russia on Nov. 2, 1917 (photostatic copy on file in The Army Library, Washington, 
D. C); the Agreement between the British and Turkish Governments respecting Prisoners of War and 
Civilians, executed at Bern on Dec. 28, 1917 (111 Brit, and For. State Papers 557); the Agreement between 
France and Germany concerning Prisoners of War, executed at Bern on April 26, 1918 (ibid. 713); and the 
Agreement between the United States of America and Germany Concerning Prisoners of War, Sanitary 
Personnel, and Civilians, executed at Bern on Nov. 11, 1918 (U. S. Foreign Relations, 1918, Supp. 2, p. 103; 
13 A.J.I.L. Supp. 1 (1919)). This latter Agreement contained a section of eleven articles (41-51) relating to 
prisoner-of-war labor. 

20. 14 A.J.I.L. 95, 115 (1920); History of the United Nations War Crimes Commission 35 (1948). 



80 Levle on the Law of War 

21. Note 7 above. The "Final Report of the Treatment of Prisoners of War Committee," published in 
30 International Law Association Reports 236 (1921), had contained a set of "Proposed International 
Regulations for the Treatment of Prisoners of War." 

22. As the U.S.S.R. was not a party to this Convention, it considered that its relations with Germany 
and the latter's allies on prisoner-of-war matters were governed by the Fourth Hague Convention of 1907. 
Report of the International Committee of the Red Cross on its Activities during the Second World War 
(hereinafter referred to as ICRC Report), Vol. I, p. 412. (No mention was made by the U.S.S.R. of the 
situation created by the si omrtes clause contained in that Convention.) Japan, which was likewise not a party 
to the 1929 Convention, nevertheless announced its intention to apply that Convention mutatis mutandis on 
a basis of reciprocity. Ibid. 443. 

23. "The international instruments regulating the treatment of prisoners of war were drawn up on the 
basis of the experience gained in the war of 1914-1918 and did not contemplate the wholesale and systematic 
use which many countries have since made of captive labor." Anon., "The Conditions of Employment of 
Prisoners of War: The Geneva Convention of 1929 and its Application," 47 International Labour Review 
169 (Feb., 1943). 

24. In February, 1944, only 60% of the prisoners of war in the United States were being employed; by 
April, 1945, that figure had increased to more than 93%. Lewis, History 125. In Germany "the mobilisation 
of prisoner labour has been organised as part of the general mobilisation of man-power for the execution of 
the economic programme." Anon., "The Employment of Prisoners of War in Germany," 48 International 
Labour Review 316, 318 (Sept., 1943). 

25. Thus, it has been stated that the improved feeding of Russian prisoners of war by the Nazis in 1942 
was instituted in order to obtain an adequate labor performance, and "must be assessed as a tactical sacrifice of 
dogma for the sake of short-range benefits to the warring Reich." Dallin, German Rule in Russia 423 (1957). 
In the Milch Case (U. S. v. Erhard Milch), 2 Trials of War Criminals before the Nuernberg Military Tribunals 
under Control Council Law No. 10 (hereinafter referred to as Trials) 782, the Military Tribunal quoted a 
1943 statement of Himmler who, in speaking of the Russian prisoners of war captured early in the war, 
deplored the fact that at that time the Germans "did not value the mass of humanity as we value it today, as 
raw material, as labor." 

26. "The policy of the Japanese Government was to use prisoners of war and civilian internees to do 
work direcdy related to war operations. "Judgment of the International Military Tribunal for the Far East 1082 
(mimeo., 1948). 

27. Lewis, History 199. 

28. Fairchild and Grossman, The Army and Industrial Manpower 194 (1959). 

29. 1 ICRC Report 327. See also Pictet, Commentary on the Geneva Convention relative to the 
Treatment of Prisoners of War (hereinafter referred to as Pictet, Commentary) 260 (1960); Flory, Prisoners 
of War 71 (1942); Girard-Claudon, Les prisonniers de guerre en face de revolution de la guerre 151 
(unpublished thesis, Universite de Dijon, 1949); Feilchenfeld, Prisoners of War 47 (1948). Art. 49 of the 1949 
Convention specifically states that the utilization of prisoner-of-war labor is "with a view particularly to 
maintaining them in a good state of physical and mental health." 

30. During World War II the Nazi use as miners of prisoners of war who did not have the necessary 
physical aptitude for this type of work and who were inexperienced was a constant source of trouble. The I. 
G. Farben Case (U. S. v. Krauch), 8 Trials 1 187. The ICRC Delegate in Berlin finally proposed to the German 
High Command that prisoners of war over 45 years of age be exempted from working as miners, but this 
proposal was rejected by the Germans on the ground that the 1929 Convention made no reference to age as 
a criterion of physical qualification for compulsory labor. 1 ICRC Report 329-331. This situation has now 
been rectified. 

31. The procedures followed in the United States during World War II were as follows: 
"Prisoners of war ... are given a complete physical examination upon their first arrival at a prisoner of 

war camp. At least once a month thereafter, they are inspected by a medical ofFicer. Prisoners are classified by 
the attending medical officer according to their ability to work, as follows: (a) heavy work; (b) light work; (c) 
sick, or otherwise incapacitated — no work. Employable prisoners perform work only when the job is 
commensurate with their physical condition." MacKnight, "The Employment of Prisoners of War in the 
United States," 50 International Labour Review 47 (July, 1944). 

Major MacKnight's statement was based, at least in part, upon the U. S. War Department's Prisoner of 
War Circular No. 1, Regulations Governing Prisoners of War, sec. 87 (Sept., 1943), which was, in turn, taken 
from Art. 48 of the 1918 U. S. -German Agreement, note 19 above. 

32. Art. 31 speaks of "medical inspections," while Art. 55 uses the term "medical examinations." (A 
similar variation is found in the French version of the 1949 Convention.) It does not appear that any substantive 



Employment of Prisoners 81 

difference was intended by the draftsmen, particularly inasmuch as Art. 31 considerably amplifies the term 
"inspection," making it clear that much more than a mere visual inspection was intended. 

33. Pictec, Commentary 289. Capturedmedicalservicepersonnelarenotprisoners of war and are entitled 
to be repatriated as soon as possible. Arts. 28 and 30, 1949 Geneva Convention for the Amelioration of the 
Condition of the Wounded and Sick in Armed Forces in the Field. 6 U. S. Treaties 3114; T.I-A.S., No. 3362; 
75 U. N. Treaty Series 31 (1:970). However, the Detaining Power may temporarily retain some of these 
individuals to provide needed medical attention to prisoners of war, primarily those belonging to the armed 
forces of the Power to which the medical service personnel themselves belong (Art. 33). When so employed 
they are known as "retained medical personnel." 

34. Similarly, the function of determining whether a prisoner of war should be repatriated for medical 
reasons is not allocated to the retained medical personnel, but is the responsibility of the medical personnel of 
the Detaining Power and of the Mixed Medical Commissions (Art. 112). 

35. During the Russo-Japanese War (1904-1905) the Japanese exempted officer prisoners of war from 
the requirement to work. Ariga, La guerre russo-japonaise au point de vue de droit international 114 (1907). 
But compare Takahashi. who s:aced that Japan did not impose labor on any Russian prisoners :: ,: 
International Law Applied to the Russo-Japanese War 125 (1908). 

36. The ICRC states that 26,000 German non-com missioned officer prisoners of war, whose iden:.~ 
papers had been taken from them in England, were compelled to work while interned in the United States 
because of their inability to prove their status. 1 ICRC Report 339. The German General Staff urged Ge rman 
non-commissioned officer prisoners of war to work, probably in order to avoid the deterioration, both phy; ical 
and mental, which comes to the completely inactive prisoners of war. Ibid . 

37. Early in 1945 the U. S. military authorities discovered that many German prisoners ::" war had false 
documents purporting to prove non-commissioned status. They thereupon required all German prisoners : :" 
war who claimed to be non-commissioned officers to produce proof of such status in the form of a "soldbuch" 
or other official document. Thousands were unable to do so and were reclassified as privates. A Brief History 
of the Office of the Provost Marshal General, World War II, 516 (rnirneo., 1946). To some extent these may 
have been the same prisoners of war referred to in the preceding note. 

38. It appears to the writer that the U. S. Army has created problems for itself in this respect by the 
establishment of a "specialist" classification of enlisted men who, although grouped in the same statutory grades 
as non-commissioned officers, are specifically stated not to be such. U. S. Army Regulations 600-201, June 
20, 1956. The strict interpretation of the term "non-commissioned officers" contemplated by the U.S.S.R. 
is evidenced by its expressed desire to limit non-commissioned officer labor exemption privileges to regular 
army ("re -enlisted") personnel. Final Record of the Diplomatic Conference of Geneva of 1949 (hereinafter 
referred to as Final Record), Vol. IIA, pp. 348, 361, 566. 

39. Pictet, Commentary 262. 

40. Sec. 59, German Regulations, Compilation of Orders No. 13, May 16, 1942. The apparent 
magnanimity of this provision is somewhat nullified by the last two sentences thereof, which indicate that "the 
employment of British non-commissioned officers has resulted in so many difficulties that the latter have by 
far outweighed the advantages. The danger of sabotage, too, has been considerably increased there: 

41. U. S. War Department Technical Manual 19-500, Enemy Prisoners of War. Q::. 5, 1944, Ch. 5, 
Sec. I, para. 4c. A draft revision of this Manual, which is currently under consideration in the Department of 
die Army, provides that "a non-commissioned officer may, at any time, revoke his voluntary request for 
work." 

42. Pictet, Commentary, loc. cit. The Commentary continues with the statement that "during the Second 
Wodd War, however, prisoners of war were so~e::~es more :: less :rmpe„ei :c sign ■ :cr.:ri;: ::: sn 
indefinite period which bound them throughout their captivity; that would be absolutely contrary to the 
present provision. " The present writer confesses himself unable to identify the portion of Art. 49 of the 1949 
Convention which so provides, or to deterrnine wherein, in this respect, it differs from the provisions of the 
1929 Convention.. 

43. 1 ICRC Report 337-338. 

44. Note 33 above. 

45. Statement of Mr. William E. Gardner (U.K.), UA Final Record 442. In a statement in a similar vein, 
Brig. Gen. Joseph V. Dillon, then the Proves: Marshal General of the U. S. Air Force, and a member of the 
U. S. Delegation at Geneva, later wrote: 

"Perhaps no section of the Convention gave rise to more debate and expressions of differences c: view 
than that dealing with 'Labour of Prisoners of War.' At the outset, it appeared that all that could be agreeu 
upon was the fact that the 1929 treatment of the subject was inadequate and ambiguous." "The Genesis of 
the 1949 Convention Relative to the Treatment of Prisoners : 5 Miami Law Quarterly 40, 51 (1950). 

46. Baxter, Book Review, 50 A.J.I.L. 979 (1956). 



82 Levie on the Law of War 

47. Art. 25, Declaration of the Conference of Brussels (1874), note 4 above; Art. 71, "Oxford Manual" 
(1880), note 4 above. 

48. Art. 6, Second Hague Convention of 1899, notes 2 and 5 above. The only changes incorporated in 
Art. 6, Fourth Hague Convention of 1907, note 6 above, were periphrastic in nature. 

49. "What constituted a direct relation with war operation was a matter of personal opinion or, indeed, 
guess." Dillon, for. cit. note 45 above, at 52. Similarly, in the I. G. Farben Case (U. S. v. Carl Krauch), 7 Trials 
1, the Military Tribunal said (8 ibid. 1189): 

"To attempt a general statement in definition or clarification of the term 'direct relation to war operations' 
would be to enter a field that the writers and students of international law have found highly controversial...." 

50. Flory, "Vers une nouvelle conception du prisonnier de guerre?" 58 Revue generale de droit 
international public 58 (1954); Janner, La Puissance protectrice en droit international d'apres les experiences 
faites par la Suisse pendant la seconde guerre mondiale 54 (1948; original in German); Feilchenfeld, op. cit. 
note 29 above, at 13. 

51. The United States found it necessary to establish a Prisoner of War Employment Review Board, 
which was called upon to make a great number of decisions in this area. Mason, "German Prisoners of War 
in the United States," 39 A.J.I.L. 198 (1945). Postwar researchers have collated lists which include literally 
hundreds of occupations as to which specific decisions were made. Lewis, History 146-147, 166-167, 203; 
Tollefson, "Enemy Prisoners of War," 32 Iowa Law Review 51, note on 62 (1946). 

52. Draft Revised or New Conventions for the Protection of War Victims 82-83 (Art. 42) (XVIIth 
International Red Cross Conference, Stockholm, 1948). 

53. "... work which is normally required for the feeding, sheltering, clothing, transportation and health 
of human beings ..." 1 Final Record 83. It is of interest that this was substantially the policy which had been 
followed by the United States in interpreting the provisions of Art. 31 of the 1929 Convention. MacKnight, 
loc. cit. note 31 above, at 54. 

54. Remarks and Proposals submitted by the International Committee of the Red Cross (Diplomatic 
Conference, Geneva, 1949) 51-52. 

55. Art. 50 reads: 

"Besides work connected with camp administration, installation or maintenance, prisoners of war may 
be compelled to do only such work as is included in the following classes: 

(a) agriculture; 

(b) industries connected with the production or the extraction of raw materials, and manufacturing 
industries, with the exception of metallurgical, machinery and chemical industries; public works and building 
operations which have no military character or purpose; 

(c) transport and handling of stores which are not military in character or purpose; 

(d) commercial business, and arts and crafts; 

(e) domestic service; 

(/) public utility services having no military character or purpose. 

"Should the above provisions be infringed, prisoners of war shall be allowed to exercise their right of 
complaint, in conformity with Article 78." 

56. In its Report to the Plenary Assembly of the Diplomatic Conference, Committee II (Prisoners of 
War) characterized this article as one which "clarifies [it] by a limitative enumeration of the categories of work 
which prisoners may be required to do." 2A Final Record 566. On the contrary, the expression "military 
character and purpose" used in subparas. b, c, and/, of Art. 50, is almost indefinable. As to these subparagraphs, 
the basic problem, which existed when the words "war operations" were used, remains unchanged. Pictet, 
Commentary 266. 

57. The difficulties experienced in selecting the appropriate verb to be used in the opening sentence of 
Art. 50 were typical of the over-all drafting problem. The following terms were contained in or suggested for 
the various texts, beginning with the original ICRC draft, which was submitted to the 1948 Stockholm 
Conference, and continuing chronologically through the various drafts, amendments, and discussions, until 
final approval of the article by the Plenary Assembly: "obliged to" (note 52 above); "required to" (1 Final 
Record 83); "obliged to" (3 ibid. 70); "employed on" (2A ibid. 272); "engaged in" (ibid, at 470); "obliged to" 
(ibid, at 344); "compelled to" (2B ibid. 176); and "compelled to" (Art. 50, note 55 above). 

58. Par. 77, Prisoner of War Circular No. 1, note 31 above. Para. 78 of the same Circular contained the 
following informative enumeration: 

"78. Labor in class one is primarily for the benefit of prisoners. It need not be confined to the prisoner 
of war camp or to the camp area. Class one labor includes: 

"a. That which is necessary for the maintenance or repair of the prisoner of war camp compounds 
including barracks, roads, walks, sewers, sanitary facilities, water pipes, and fences. 



Employment of Prisoners 83 

"b. Labor incident to improving or providing for the comfort or health of prisoners, including work 
connected with the kitchens, canteens, fuel, garbage disposal, hospitals and camp dispensaries. 

"c. Work within the respective prisoner companies as cooks, cook's helpers, tailors, cobblers, barbers, 
clerks and other persons connected with the interior economy of their companies. In apportioning work, 
consideration will be given by the company commander to the education, occupation, or profession of the 
prisoner." 

59. The utilization of prisoner-of-war labor for the operation and maintenance of military installations 
occupied by the armed forces of the Detaining Power does not fall within the classification of camp 
administration referred to in the Convention. While many such uses would probably come within the category 
of domestic services (cooks, cook's helpers, waiters, kitchen police, etc.), which are authorized, it would seem 
that many others are no longer permitted. (Employment in the Prisoner of War Information Bureau maintained 
by the Detaining Power is specifically authorized by Art. 122.) 

60. Fairchild, op. tit. note 28 above, at 190. See also MacKnight, loc. tit. note 31 above, at 57. 

61. In the spring of 1940 more than 90% of the Polish prisoners of war held by the Germans were 
employed in agriculture; and while this figure later dropped considerably, it always remained extremely high. 
Anon., "The Employment of Prisoners of War in Germany," note 24 above, at 317. In the United States, 
even though more than 50% of the man-months worked in industry by prisoners of war were performed in 
agricultural work, the demands for such labor could never be fully met. Lewis, History 125-126. An exception 
to the foregoing occurred in Canada, where the great majority of prisoners of war were used in the lumbering 
industry. Anon., "The Employment of Prisoners of War in Canada," 51 International Labour Review 335, 
337 (March, 1945). 

62. Pictet, Commentary 266. It is interesting to note that the enumeration originally prepared by the 
ICRC (note 52 above), which was ultimately restored to the Convention at the behest of the U.K. Delegation 
to the Conference, did not include agriculture as a separate item. A member of the U.S. Delegation urged 
that it be specifically listed, and his proposal was adopted without discussion or opposition. 2A Final Record 
470. 

63. 1 ICRC Report 329. For a specific example, see note 30 above. Unfortunately, little data is available 
concerning the activities of Protecting Powers in this regard, as they rarely publish any details of their wartime 
activities, even after the conclusion of peace (Levie, " Prisoners of War and the Protecting Power, " 55 A.J.I.L. 
374, 378 (1961)). An unofficial report of Swiss activities as a Protecting Power during World War II is contained 
injanner, note 50 above. 

64. The source of some of the wording and punctuation of subpara. (b) of Art. 50 is somewhat obscure. 
As submitted by Committee II (Prisoners of War) to the Plenary Assembly of the Diplomatic Conference, it 
read: 

". . . manufacturing industries, with the exception of iron and steel, machinery and chemical industries 
and of public works, and building operations which have a military character or purpose" (2A Final Record 
585-586). Although this portion of Art. 50 was approved by the Plenary Assembly without amendment, in 
the Final Act of the Conference (which is, of course, the official, signed version of the Convention), the same 
provision reads: 

"... manufacturing industries, with the exception of metallurgical, machinery and chemical industries; 
public works and building operations which have no military character or purpose" (1 Final Record 254). 
These changes in wording and punctuation (made in the English version only) represent a considerable 
clarification and should eliminate many disputes which might otherwise have arisen. However, it would be 
interesting to know their origin! 

65. Lewis, History 77. After World War II one of the U. S. Military Tribunals at Nuernberg held: 

". . . as a matter of law that it is illegal to use prisoners of war in armament factories and factories engaged 
in the manufacture of airplanes for use in the war effort." The Milch Case (U. S. v. Erhard Milch), note 25 
above, at 867. The decision would, in part, probably have been otherwise had the defense been able to show 
that the airplanes were intended exclusively for civilian use. 

66. Pictet, Commentary 268-269. 

67. As indicated in note 57 above, the decision to use the words "compelled to" in the first sentence of 
Art. 50 was reached only after the consideration and rejection of numerous alternatives. Words such as 
"prisoners of war may only be employed in" were strongly urged because they would preclude the Detaining 
Power from using pressure to induce prisoners of war to "volunteer" for work which they could not be 
compelled to do (2A Final Record 343); and words such as "prisoners of war may be obliged to do only" 
("compelled to do only") were just as strongly urged on the very ground that the alternative proposal would 
preclude volunteering (ibid, at 342). The proponents of the latter position were successful in having their 
phraseology accepted by the Plenary Assembly. 



84 Levie on the Law of War 

68. See Levie, "Penal Sanctions for Maltreatment of Prisoners of War," 56 A.J.I.L. 433, at 450, note 71 
(1962). The ICRC appears to be inconsistent in asserting that the prohibition against prisoners of war working 
in these industries is absolute (Pictet, Commentary 268), but that prisoners of war may volunteer to handle 
stores which are military in character or purpose (ibid, at 278), work which the Detaining Power is likewise 
prohibited from compelling prisoners of war to do. The statement that the absolute prohibition of Art. 7 
against the voluntary renunciation of rights by prisoners of war was necessary "because it is difficult, if not 
impossible, to prove the existence of duress or pressure" (ibid, at 89) is, of course, equally applicable to all of 
the prohibitions of Art. 50, but the Diplomatic Conference obviously elected to take a calculated risk in this 
regard insofar as prisoner-of-war labor is concerned. 

69. In his article (note 45 above, at p. 52), General Dillon showed considerable restraint when he said 
merely that many delegations believed that the phrase "will create some difficulty in future interpretations. " 
He had been much more vehement at the Diplomatic Conference! (2A Final Record 342-343.) 

70. The test is whether it is intended for military use, and not whether it is intended for use by the 
military. A bowling alley or a tennis court or a clubhouse might be intended, perhaps exclusively, for use by 
the military, but such structures certainly have no military use perse and, therefore, they do not have a "military 
purpose." 

71. The foregoing position closely resembles the legal interpretation of the phrase in question proposed 
by the present author and approved by The Judge Advocate General of the United States Army in an 
unpublished opinion written in 1955 (JAGW 1955/88). It differs from the ICRC position, which is that 
"everything which is commanded and regulated by the military authority is of a military character, in contrast 
to what is commanded and regulated by the civil authorities." Pictet, Commentary 267. 

72. Flory, op. cit. note 29 above, at 74. 

73. The High Command Case (U. S. v. Wilhelm von Leeb), 1 1 Trials 534. No such uncertainty existed 
in the minds of the members of the Tribunal with respect to the use of prisoners of war in the construction 
of combat zone field fortifications. Ibid. 538. 

74. Lewis, History 89. 

75. Sec. 738, German Regulations, Compilation of Orders No. 39, July 15, 1944. 

76. Pictet, Commentary 267-268, where a distinction is justifiably drawn between clearing debris from 
city streets and clearing it from an important defile used only for military purposes. 

77. In Pictet, Commentary 268, the statement is made that these public utility services have a military 
character "in sectors where they are under military administration." The present writer finds it impossible to 
agree that the nature of the administration of these public services can determine their inherent character. If 
this were possible, then public utility services administered by the military authorities in an occupied area, as 
is normally the case, would be military in character, even though originally constructed for and then being 
used almost exclusively by the civilian population of the occupied territory. 

78. Lewis, History 112; MacKnight, loc. cit. note 31 above, at 55. The latter continues with the following 
statement: 

"... The particular task is considered, not the industry as a whole. The specific conditions attending 
each job are decisive. For example, an otherwise dangerous task may be made safe by the use of a proper 
appliance, and an otherwise safe job rendered dangerous by the circumstances in which the work is required 
to be done. Work which is dangerous for the untrained may be safe for those whose training and experience 
have made them adept in it." The third criterion mentioned in the text has already been discussed above. 

79. In determining whether an industry was of a nature to require special study, The Judge Advocate 
General of the United States Army rendered the following opinion in 1943: 

". . . If in particular industries the frequency of disabling injuries per million man-hours is: 

"a. Below 28.0 — prisoner-of-war labor is generally available therein; 

"b. Between 28.0 and 35.0 — the industry should be specifically studied, from the point of view of 
hazard, before assigning prisoner-of-war labor therein; 

"c. Over 35.0 — prisoner-of-war labor is unavailable, except for the particular work therein which is 
not dangerous. . . ." 

80. Those interested in the history and background of this problem and the debate at the Diplomatic 
Conference are referred to the following sources: 1 ICRC Report 334; 3 Final Record 70-71 ; 2A ibid. 272-273, 
443-444, 345; 2B ibid. 290-295, 298-299; Pictet, Commentary 277-278. 

81. "This rule has the advantage of being clear and easy to apply. The reference is to objective rules 
enforced by that Power and not the personal feelings of any individual member of the armed forces. The 
essential thing is that the prisoner concerned may not be the laughing stock of the those around him." Pictet, 
Commentary 277. 

82. Although prohibitions against the use of prisoners of war on humiliating work were contained in 
Art. 25 of the Declaration of Brussels and Art. 71 of the Oxford Manual (note 4 above), there was no similar 



Employment of Prisoners 85 

provision in the 1929 Convention. Nevertheless, during World War II the United States recognized the 
prohibition against the employment of prisoners of war on degrading or menial work as a "well settled rule 
of the customary law of nations" (MacKnight, he. cit. note 31 above, at 54), and even prohibited their 
employment as orderlies for other than their own officers (Lewis, History 113). While this latter type of work 
is prohibited for personnel of the U. S. Army, it is believed that the prohibition is based upon policy rather 
than upon the "humiliating" nature of an orderly's functions. Apparently this is settled policy for the United 
States, as the same rule is found in the draft of the new directive on the subject of prisoner-of-war labor which 
is being prepared by the U. S. Army. 

83. In addition, Art. 25 prescribes specific minimum standards for accommodations; Art. 26 provides for 
such additional rations as may be necessary because of the nature of the labor on which the prisoners of war 
are employed; and Art. 27 provides that prisoners of war shall receive clothing appropriate to the work to 
which they are assigned. It has been asserted that not only must the living conditions of prisoner-of-war laborers 
not be inferior to those of local nationals, but also that this provision may not "prevent the application of the 
other provisions of the Convention if, for instance, the standard of living of citizens of the Detaining Power 
is lower than the minimum standard required for the maintenance of prisoners of war." Pictet, Commentary 
271. While the draftsmen did intend to establish two separate standards (2A Final Record 401), at least as to 
clothing, it is difficult to believe that any belligerent will provide prisoners of war with a higher standard of 
living than that to which its own civilian citizens have been reduced as a result of a rigid war economy. 

84. Ibid. 275. 

85. Pictet, Commentary 271-272. 

86. 2A Final Record 275. 

87. It could be argued that a proper grammatical construction of the provision of the Convention makes 
only the protective equipment and not the training subject to national standards. However, this is debatable, 
and, even if true, it would merely result in the application of an international standard in the very area where 
the national standard would probably be highest. 

88. The Judgment of the International Military Tribunal for the Far East (note 26 above, at 1002) 
mentioned "forced labor in tropical heat without protection from the sun" as one of the atrocities committed 
against prisoners of war by the Japanese. The motion picture, "The Bridge on the River Kwai," graphically 
portrayed the problem. 

89. Art. 27 of the 1949 Convention specifically mentions that, in issuing clothing to prisoners of war 
(without regard to the work at which they are employed), the Detaining Power "shall make allowance for 
the climate of the region where the prisoners are detained. " 

90. Art. 89 of the 1949 Convention contains an enumeration of the punishments which may be 
administered to a prisoner of war as a disciplinary measure for minor violations of applicable rules and 
regulations. 

91. At the Diplomatic Conference Mr. B.J. Wilhelm, the representative of the International Committee 
of the Red Cross, stated that experience had indicated that the majority of all prisoners of war were maintained 
in labor detachments. 2A Final Record 276. This is confirmed by the series of articles which had appeared in 
the International Labour Review during the course of World War II. See 47 International Labour Review 
169, note 23 above, at 187 (general); 48 ibid. 316, note 24 above, at 318 (Germany); Anon., "The Employment 
of Prisoners of War in Great Britain," 49 ibid. 191 (Feb., 1944); and MacKnight, he. cit. note 31 above, at 49 
(United States). 

92. In addition to the requirements of Art. 56 for the observance of the present Convention in labor 
detachments, specific provisions as to these detachments are contained in Arts. 33 (medical services), 35 
(spiritual services), and 79 and 81 (prisoners' representatives), among others. 

93. For example, Art. 25 provides that the billets provided for prisoners of war must be adequately heated. 
The fact that the parent prisoner-of-war camp has central heating, while the billets occupied by the men of 
the labor detachment have separate, but adequate, heating facilities, does not constitute a violation of the 
Convention. 

94. This latter provision is included in order to enable them to register a complaint concerning their 
treatment, should they believe that it is below Convention standards. Of course, complaints may also be made 
to the representatives of the Protecting Power, who may visit these detachments whenever they so desire 
(Arts. 56 and 126), but these latter are not always immediately available, while the prisoners' representatives 
are. During World War II, both Great Britain and the United States provided for inspections by their own 
military authorities of the treatment of prisoners of war who were working for private employers. Anon., 
"The Employment of Prisoners of War in Great Britain," note 91 above, at 192; Mason, he. cit. note 51 
above, at 212. 

95. Members of the U. S. Armed Forces may not accept parole, except for very limited purposes. Code 
of Conduct, Exec. Order No. 10631, Aug. 17, 1955, 20 Fed. Reg. 6057; The Law of Land Warfare, FM 



86 Levie on the Law of War 

27-10, U. S. Army, July, 1956, sec. 187. The British rule is substantially similar. Manual of Military Law, Part 
III, The Law of War on Land, 1958, sec. 246, note 1. 

96. In Pictet, Commentary 296, the argument is made, and with considerable merit, that escape is an 
act of war and that only military personnel of the Detaining Power are authorized to respond to this act of 
war with another act of war — the use of weapons against a prisoner of war. This theory finds support in the 
safeguards surrounding the use of weapons against prisoners of war, especially those involved in escapes, found 
in Art. 42 of the 1949 Convention. 

97. See, for example, the World War I agreements listed in note 19 above, and Lauterpacht, "The 
Problem of the Revision of the Laws of War," 29 Brit. Yr. Bk. of Int. Law 360, 373 (1952). 

98. By becoming parties to the Convention they have given up their sovereign right to enter into special 
agreements adversely affecting the rights guaranteed to prisoners of war by the Convention. 

99. Statement of Mr. R.J. Wilhelm, the representative of the International Committee of the Red Cross, 
2A Final Record 275. 

100. 2B ibid. 300. 

101. The Conference of Government Experts called by the ICRC in 1947 had originally considered 
setting maximum working hours, but finally decided against it as being "discrimination in favour of PW, which 
would not be acceptable to the civilian population of the DP." Report on the Work of the Conference of 
Government Experts 176 (1947). As stated in Anon., "The Conditions of Employment of Prisoners of War," 
note 23 above, at 194: 

"The prisoner cannot expect better treatment than the civilian workers of the detaining Power.... His 
fate depends upon the extent to which the standards of the country where he is imprisoned have been lowered 
through the exigencies of the war." 

102. During World War II, many countries used the piece or task-work method of controlling 
prisoner-of-war labor. Pictet, Commentary 282; Anon., "The Employment of Prisoners of War in Canada," 
note 61 above, at 337. In the United States the piece-work system was used, but to control pay rather than 
work hours. Lewis, History 120-121. As long as the pay does not drop below the minimum prescribed by the 
Convention, there would appear to be no objection to this procedure. 

103. Nor was it subject to national standards in the 1929 Convention, but the Germans refused to accord 
prisoners of war a weekly day of rest on the ground that the civilian population did not receive it. Janner, 
op.cit. note 50 above. 

104. Pictet, Commentary 313; ICRC Report 286. 

105. Actually, Art. 62 refers to "working rate of pay" twice and to "working pay" four times, while Arts. 
54 and 64 refer only to "working pay." The term "indemnite de travail" is used in the French version of all 
of these articles and the difference in English appears to be an error in drafting. The report of the Financial 
Experts at the 1949 Diplomatic Conference (2A Final Record 557) states: 

"It appeared that the expression 'wages' was inappropriate and might give the impression that prisoners 
of war while fed and housed at the cost of the Detaining Power were in addition being remunerated for their 
work at a rate corresponding to the remuneration of a civilian worker responsible for maintaining himself and 
his family out of his wages. For this reason, it was decided to substitute the terms 'working pay' wherever this 
was necessary." 

106. The inadequacy of the minimum set by the Convention, which amounts to approximately six cents 
a day in money of the United States (approximately 5 d. in British money), is illustrated by the fact that almost 
a century ago, in 1864, during the American Civil War, the Federal Government set the rate of prisoner-of-war 
pay at ten cents a day for the skilled and five cents a day for the unskilled! Lewis, History 39. During World 
War II the United States paid prisoners of war 80 cents a day. Ibid, at 77. Under the incentive of the piece-work 
system it was possible to increase this to $1.20 a day. Ibid, at 120. 

107. For some of these differences, see the quotation in note 105 above, and Mojonny, The Labor of 
Prisoners of War 24 (unpublished thesis, Indiana University, 1954). For a contrary view, see Pictet, 
Commentary 115. 

108. During World War II the Germans habitually paid Soviet prisoners of war as little as one-half of the 
amount paid to prisoners of war of other nationalities. Dallin, note 25 above, at 425. Art. 16 of the 1949 
Convention specifically prohibits "adverse distinction based on race, nationality, religious belief or political 
opinions, or any other distinction founded on similar criteria." 

109. This was the policy followed by the United States during World War II. Prisoner of War Circular 
No. 1, note 31 above, sec. 85. 

110. Flory, op. cit., note 29 above, at 79-80. The prisoner-of-war agreement concluded between France 
and Germany in 1915 had still a different approach: it provided that, upon repatriation, prisoners of war who 
had suffered industrial accidents would be treated as wounded combatants. Rosenberg, "International Law 
Concerning Accidents to War Prisoners Employed in Private Enterprises," 36 A.J.I.L. 294, 297 (1942). 



Employment of Prisoners 87 

111. Lauterpacht, loc. cit. note 97 above. Lauterpacht labels the negotiations as "elaborate" and as 
"concerning the relatively trivial question of the interpretation of Article 27." 

112. Prisoner ofWar Circular No. 1, note 31 above, sees. 91 and 92; MacKnight, loc. cit. note 31 above, 
at 63. 

113. Lauterpacht, loc. cit. 

114. E.g., Lewis, History 156. 

115. In the British Manual of Military Law, op. cit. note 95 above, sec. 185, note 1, the statement is made 
that during the World War II negotiations the United Kingdom "considered that its domestic workmen's 
compensation legislation was too complex and so bound up with the conditions of free civilian workmen as 
to make it impracticable to apply it to prisoners of war." That position has become no less valid with the 
passing of the years since the end of that war. 

116. Arts. 40 and 95 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in 
Time of War (6 U. S. Treaties 3516; 75 U.N. Treaty Series 287 (1:973); 50 A.J.I.L. Supp. 724 (1956)) place 
upon the Detaining Power the additional burden of providing compensation for occupational accidents and 
diseases. The variation between the two conventions was noted by the Co-ordination Committee of the 
Diplomatic Conference (2B Final Record 149), but Committee II, to which had been assigned the 
responsibility for preparing the text of the prisoner-of-war convention, determined that such a provision was 
not necessary for prisoners of war (2 A Final Record 402). 

117. The suggestion has been made that, "since under Article 51, paragraph 2, he [the prisoner of war] 
is covered by the national legislation [of the Detaining Power] concerning the protection of labour," a prisoner 
of war disabled in an industrial accident or by an industrial disease would, while still a prisoner of war, be 
entitled to benefit from local workmen's compensation laws. Pictet, Commentary 286-287. It is believed that 
the application of this general provision of the Convention has been restricted in this area by the specific 
provision on this subject. 

118. Anon., "The Conditions of Employment of Prisoners of War." note 23 above, at 182; Pictet, loc. 
cit. 

119. The availability of the latter as a channel of complaint is not clearly defined. Levie, "Prisoners of 
War and the Protecting Power," loc. cit. note 63 above, at 396. 

120. The activities of the International Committee of the Red Cross are likewise a major deterrent to the 
improper application of the Convention. 

121. Statement of German General Keitel, quoted in the "Opinion and Judgment of the International 
Military Tribunal," 41 A.J.I.L. 172, 228-229 (1947). 



IV 

Across The Table At Pan Mun Jom 



38 Saint Louis University Magazine 10 (March 1965)' 



In July 1951 the writer, then an Army legal officer stationed in Tokyo, was 
suddenly ordered to an undisclosed destination in Korea, for an undisclosed 
purpose, for about two weeks. In view of what was being discussed at great 
length over the radio and in the press, it was not difficult to conclude that the 
assigned mission was to help negotiate with the North Korean and Chinese 
Communists for an armistice to end fighting in Korea. One year later the writer 
was the last of the original staff to return to Tokyo, and there still was no 
agreement with the Communists on such an armistice. In fact, that agreement 
was not reached until July, 1953, two years rather than two weeks after the 
opening of the talks! 

To write with purported authority on the basis of experiences which occurred 
more than a decade ago would be presumptuous in most areas of human conduct. 
Not so with respect to the negotiating techniques employed by the Communists. 
In this regard they all wear the same old school tie, whether they are Russian 
or Chinese, Bulgarian or North Korean. A perusal of both official and unofficial 
reports concerning negotiations with Communists conducted yesterday, a year 
ago, or a decade ago, will quickly reveal the use of some or all of the definitely 
non-diplomatic methods early adopted by Soviet negotiators. Subsequently they 
have been developed and refined until they have become standard operating 
procedure for any self-respecting Communist who is given the task of 
negotiating with representatives of a "decadent" capitalistic system. 

Without attempting to be a psychiatrist, it is safe to say that one of the first 
things which impressed the United Nations Command (UNC) personnel at the 
armistice negotiations was that, without exception, every Communist 
representative, from senior delegate to substitute interpreter, suffered from an 
inferiority complex. This "chip-on-the-shoulder," "I'm-as-good-as-you-are" 
attitude is undoubtedly one of the many things which makes negotiations with 
Communists so difficult. Perhaps Soviet successes in space and Chinese nuclear 
successes will mitigate this, but psychiatrists will probably agree that a complete 

* Revised and reprinted from Sidelights on the Korean Armistice Negotiations, 48 
American Bar Association Journal 730 (1962). 



90 Levie on the Law of War 

change in this mental attitude will require many more successes and a 
considerable period of time. 

The publicly expressed Communist opposition to the use of helicopters by 
the UNC representatives was unquestionably motivated by their inability to 
provide a helicopter lift for their own personnel. When the UNC put in gravel 
walks around its side of the conference area at Pan Mun Jom, the Communists 
immediately put in gravel walks on their side. When the UNC lined the sides 
of its walks with rocks, they lined the sides of their walks with bricks and painted 
them white. When the UNC planted small fir trees in its area, they planted big 
ones in theirs. When the UNC installed green sentry boxes to protect its military 
police from the weather, they countered with sentry boxes for their guards which 
were painted like barber poles — until jokes by the Western correspondents 
caused them to reconsider and repaint. Similarly, it was undoubtedly this 
inferiority complex which caused the almost hysterical demands that the UNC 
negotiators stop referring to the Communist side as "North Korean 
Communists" and "Chinese Communists" and give them their "rightful' names, 
"Democratic Peoples' Republic of Korea" and "Chinese Peoples' Volunteers." 

Another characteristic which appears to be endemic among Communists is 
a complete lack of a sense of humor and an accompanying marked inability to 
be on the receiving end of a joke. The incident of the sentry boxes which has 
just been mentioned was one example of this. Another involved a ten-year-old 
Korean boy who one day followed the UNC convoy into the neutral zone. He 
was arrested by the Communists who claimed that he was a spy for the United 
Nations Command. The UNC liaison officers demanded and obtained his return 
and the Western press treated the whole thing as a huge joke, making numerous 
references to the ten-year-old "master spy." There were no further attempts by 
the Communists, except behind the bamboo curtain, to capitalize on that 
particular incident. Similarly, when a small anti-epidemic team of the Republic 
of Korea Army inadvertently drove its truck into the neutral zone the 
Communists, in returning the men to the UNC liaison officers, labeled the 
incident a "very serious violation" of the agreement creating the neutral zone. 
The Western press wrote humorous stories about the "invasion of the neutral 
zone by soldiers armed to the teeth with DDT spray guns," and nothing further 
was heard about the matter from the Communists. 

When the meetings began at Kaesong, the Communists did everything 
possible to create the impression that they were the hosts and that the UNC 
personnel were the visiting suppliants. Communist guards armed with 
sub-machine guns swarmed around the entire conference area. Packages of 
Chinese cigarettes and decanters of Chinese wine were on the conference table. 
And the Communists attempted to dictate who could be included in the UNC 
party and refused to pass a UNC convoy which included news correspondents. 



Pan Mun Jom 91 

Within twenty-four hours General Matthew B. Ridgway. the UNC 

Commander, ordered the conferences halted and laid down the terms upon 
which he would permit them to be resumed. The Communists quickly agreed. 
This was the first of a number ot occasions upon which an immediate display 
of a firm and irrevocable intent brought quick acquiescence from the 
Communists. Not only the armed guards but the cigarettes and wine 
disappeared. It is perhaps appropriate to add that none of the UNC personnel 
had ever availed themselves of the Commumst "hospitality" and that when, 
more or less intentionally, Amencan cigarettes were left overnight on the 
conference table, they would be found untouched the following day. 

Until the advent ot the Communist era, the agenda was something upon 
which agreement was normally reached during the first few minutes of a 
diplomatic conference if not before hand. Now, reaching an agreement on the 
agenda sometimes has become harder than reaching agreement on substantive 
matters. This is primarily because of the Communists' attempt to tnck the other 
side into concessions by means of the wording on agenda items. 

For example, both sides were agreed at the very outset that there should be 
an item concerned with the selection of a military demarcation line, a dividing 
line between the opposing military forces once the cease-fire became effective. 
The UNC delegation proposed that this subject be included under the rubric 
"Establishment of a military demarcation line." The Communists refused to 
accept this proposed terminology, submitting as a counter-proposal the phrase 
"Establishment of the thirty-eighth parallel as a military demarcation line." 
Obviously, after agreement on such wording for the agenda item, there would 
have been little need tor substantive discussions. Any attempt to discuss locating 
the military demarcation line at a point other than at the thirty- eighth parallel 
would have met with an immediate complaint by the Communists that the 
discussion was not within the framework of the mutually accepted agenda and 
with absolute refusal to take part in negotiations which would "violate" the now 
sacrosanct agenda. Here, again, the UNC refused to make any concession and 
the Communists eventually accepted the UNC-proposed terminology which 
thus permitted the substantive discussions to cover a whole range of suggested 
demarcation lines with the battle line finally being agreed upon for that purpose. 
Parenthetically, it is interesting to recall that while it took many months to get 
the Commumsts to abandon the thirty-eighth parallel, some months thereafter, 
when the UNC suggested using that line for determining which civilian refugees 
would be entitled to be sent to the other side, the Commumsts asserted that the 
UNC was attempting to revive the "obsolete" thirty-eighth parallel. 

It is comparatively simple to trace the continuity over the years of the use ot 
the agenda technique by the Commumsts. The problem of China has, of course, 
plagued the United Nations since early in 1950. The difference between the 



92 Levie on the Law of War 

traditional approach to the establishment of an agenda item and the Communist 
approach is well illustrated by the two items inscribed on the agenda of the 
Sixteenth Session of the General Assembly in 1961. The item proposed by New 
Zealand, worded so as to permit complete discussion of all aspects of the problem, 
was: "Question of the representation of China in the United Nations." The 
item proposed by the USSR (which was then still acting as Communist China's 
sponsor in the United Nations), was: "Restoration of the lawful rights of the 
Peoples' Republic of China." 

The use of tactful language in international negotiations is merely evidence 
of bourgeois decadence in so far as the Communists are concerned. 
(Khrushchev's shoe-pounding performance at the 1960 meeting of the United 
Nations General Assembly, which so astounded most non-Communist 
representatives, was probably considered to be quite normal by the 
representatives of the satellite nations.) Any proposal that they made was 
invariably labeled "fair and reasonable." Just as invariably, any proposal made by 
the UNC was labeled "absurd and arrogant." Libelous statements about the 
United States, the Republic of Korea and the Republic of China were the 
Communist order of the day. Every UNC action was characterized as 
"barbarous" and "criminal" and every UNC statement as "deceitful" and a 
"fabrication." It was obvious that all of this was part of a strategy aimed at making 
the UNC negotiators lose their tempers, the theory probably being that when 
emotionally disturbed, unintended statements might be inadvertently made. But 
whatever the theory, the plan failed to work as the UNC representatives, naive 
as some of them may have been when the negotiations began, quickly came to 
appreciate what was being attempted and had no difficulty in avoiding the pitfall 
which had been so carefully prepared for them. In fact, the Communists soon 
found it necessary to completely reverse their tactics and to attempt to induce 
reciprocity by purported loss of temper on their side, loss of temper which could 
be turned on and off like water from a faucet. After a few polite but patently 
amused requests that they stop yelling across the table, this tactic was more or 
less abandoned, especially when one of the UNC staff officers pointed out that 
yelling in Chinese or Korean served no useful purpose since it was in a language 
he did not understand. 

Major General (later General) Henry I. Hodes, one of the original members 
of the United Nations Command Delegation and the senior member of the first 
UNC sub-delegation (the other was Rear Admiral Arleigh. A. Burke, later an 
Admiral and Chief of Naval Operations), had a faculty for rubbing his 
Communist counterpart, Chinese Major General Hsieh Fang, the wrong way. 
The informal sub-delegation meetings on the military demarcation line had 
come to a complete halt. After both sides had maneuvered for some time with 
no perceptible progress being made, General Hodes suggested that a coin be 



Pan Mun Jom 93 

tossed to determine who would "break the ice." Hsieh Fang indicated great 
astonishment that General Hodes would be willing to let such an important 
matter be determined by the toss of a coin. To him the negotiatory technique 
employed was a matter of the utmost importance. General Hodes was just 
interested in getting the discussions moving. On another occasion, Hsieh Fang 
attempted to indicate his low regard for the United Nations Command 
Delegation by referring to Admiral Joy (almost a Chinese name) as "your Senior 
Delegate, whose name I do not recall." General Hodes answered him by 
referring to the Communist Senior Delegate and adding the phrase "whose name 
I trust you do recall." That ended that interchange very quickly. 

When the UNC negotiators had no objection to something proposed by the 
Communists they would unhesitatingly so state. Not so the Communists. They 
would concede that their views were generally the same as those expressed by 
the UNC representative, or that they could see no reason why agreement should 
not be reached on the matter under discussion. It was just plain impossible to 
get them to say a simple "yes." Naturally, there was much speculation on the 
UNC side that this difficulty arose because the Communist representatives were 
not permitted on their own initiative to agree on even a minor administrative 
matter. No such difficulty was encountered when it came to getting them to 
say no. 

Over the course of time both sides became very reticent about the manner 
in which they proposed compromises. The UNC negotiators soon found that 
if they offered a compromise position somewhere between the announced 
positions of the two sides, the Communists would reject it out of hand, but that 
for all subsequent negotiations the two extremes were the original Communist 
position and the UNC compromise proposal. The UNC negotiators evened the 
score when the Communists made a proposal calling for agreement to a demand 
made by UNC on one matter in return for UNC agreement to a Communist 
demand on an entirely unrelated matter. The UNC accepted the Communist 
concession on its demand and declined to agree to the Communist demand on 
the other matter. It worked — but only once. 

The Communists were either amazingly unimaginative or severely restricted 
when it came to administrative matters. Every suggestion without exception for 
expediting the progress of the negotiations was made by the UNC 
representatives. And that wasn't because they jumped the gun, either. On a 
number of occasions the UNC representatives would ask the Communists for 
a suggestion as to how some administrative matter should be handled. The 
Communists would come right back and ask for the UNC opinion. It would 
be given to them, and the next day they would agree to it, usually with some 
minor and unimportant modification made just to show that they had had a 
hand in reaching the decision. Incidentally, Navy Lieutenant Horace G. 



94 Levie on the Law of War 

Underwood, the senior UNC interpreter, stated that he had found it necessary 
to adopt the policy of intentionally inserting at least one fairly obvious error in 
all interpretations on which agreement was required, because then the 
Communists would be satisfied when they corrected the error, whereas, if there 
was no error, they invariably proposed some change in substance. More 
inferiority complex? 

If any reader of this article should ever have the necessary but exhausting 
chore of negotiating with representatives of a Communist nation, he 
undoubtedly will encounter many of the techniques discussed here. For it is safe 
to say that Communist negotiating techniques are as immutable as the laws of 
nature. 






V 

Maltreatment of Prisoners of War In Vietnam 



48 Boston University Law Review 323 (1968)' 



After the adoption of the Southeast Asia (Gulf of Tonkin) Resolution by 
the Congress of the United States in August, 1964, there was a substantial 
increase in the American military presence in South Vietnam and consequent 
and parallel increases in the range and extent of belligerent activities. In 
accordance with its customary practice, the International Committee of the Red 
Cross (hereinafter referred to as the ICRC) thereupon addressed a letter to the 
several parties to the conflict, pointing out that they had all ratified or adhered 
to, and were bound by, the 1949 Geneva Conventions for the Protection of 
Victims of War. The ICRC reminded the parties of their specific obligations 
under the Conventions, and requested information as to the measures being 
taken by each of them to conform to the duties devolving upon them. 

Replies were received from all of the parties concerned. The United States 
advised that it "has always abided by the humanitarian principles enunciated in 
the Geneva conventions and will continue to do so." Specifically, it affirmed 
that it was "applying the provisions of the Geneva Conventions [in Vietnam] 
and we expect the other parties to the conflict to do likewise." ' The Republic 
of Vietnam (hereinafter referred to as South Vietnam) assured the ICRC that it 
was "fully prepared to respect the provisions of the Geneva Conventions and 
to contribute actively to the efforts of the International Committee of the Red 
Cross to ensure their application." 

The reply received from the Democratic Republic of Vietnam (hereinafter 
referred to as North Vietnam) was the usual propaganda tirade which appears 
to be endemic in Communist documents, thus making it rather difficult to isolate 
any truly responsive portions. However, the letter did state that North Vietnam 
would "regard the pilots who have carried out pirate-raids, destroying the 
property and massacring the population of the Democratic Republic of 
Vietnam, as major [war] criminals caught in flagrante delicto and liable for 
judgment in accordance with the laws of the Democratic Republic of Vietnam, 
although captured pilots are well treated."' The National Liberation Front 
(hereinafter referred to as the NLF), the political arm of the Vietcong, flady 

* Reprinted in 2 THE VIETNAM WAR AND INTERNATIONAL LAW 361 (Richard Falk 
ed., 1969). 



96 Levle on the Law of War 

refused to apply the Conventions, stating that it "was not bound by the 
international treaties to which others beside itself subscribed. . . . [T]he NLF, 
however, affirmed that the prisoners it held were humanely treated and that, 
above all, enemy wounded were collected and cared for." 

This article has well-defined limitations in scope. It will be concerned solely 
with some of the instances of maltreatment of prisoners of war which constitute 
violations of several of the more important humanitarian provisions of the 1949 

Geneva Prisoner-of-War Convention, or of customary international law, which 

10 
appear to have occurred during the course of the fighting in Vietnam. 

Unfortunately, the positions taken by North Vietnam and the NLF necessitate 

at least some discussion of the problems created by their attitude toward 

compliance with the humanitarian aspects of the law of war and by the question 

of the applicability of the Convention under the circumstances which exist in 

Vietnam. 

I. Past Communist Practice With Respect to the Treatment 

of Prisoners of War 

Inasmuch as the long list of States which have ratified or adhered to the 1949 
Geneva Conventions contains all of the Communist countries, including the 
major sponsors of North Vietnam and the NLF, viz the USSR and the People's 
Republic of China, it is obvious that the refusal of North Vietnam and the NLF 
to consider themselves bound by even the limited humanitarian provisions 
enumerated in Article 3 of the Convention cannot be because these provisions 
are in any manner contrary to the Communist concept of the law of war. The 
only alternative is to assume that they consider that it is in their own self-interest 
not to be under any of the constraints imposed by a requirement to comply with 
these purely humanitarian aspects of the law of war. However, one engaged in 
armed hostilities, even as a rebel in a civil war, cannot thus divest himself of the 
requirement to comply with those portions of the law of war which constitute 
a part of the customary rules of international law recognized by all civilized 
nations — and, as we shall shortly see in more detail, the provisions of Article 3 
of the Convention, for the most part, fall within this category. 

A. The USSR during World War II 

During World War II, the USSR acknowledged that it was bound by the 

15 
1907 Hague Regulations " and the 1929 Geneva Wounded-and-Sick 

\(\ 
Convention, and took the position that the provisions of these two agreements 

covered "all the main questions of captivity." Based upon this statement the 

ICRC assumed that there would be, among other things, exchanges of lists of 

prisoners of war and of mail and relief packages, and that its delegates would be 



Maltreatment of Prisoners 97 

permitted and enabled to enter Russia and to inspect prisoner-of-war camps 

located in that country. This was also the assumption of the enemies of the 

USSR. Despite continuous efforts on the part of the ICRC, however, none of 

18 
these things ever eventuated. One author ascribed this negative policy adopted 

by the USSR to the alleged "official Soviet position, that any soldier who fell 

into enemy hands was ipso facto a. traitor and deserved no protection from his 

government." 

B. North Korea 

During the Korean hostilities the North Korean Government announced that 
its forces were "strictly abiding by principles of Geneva Conventions in respect 
to Prisoners of War"; and in the lengthy dispute during the armistice 
negotiations regarding "forced repatriation" of prisoners of war, the North 

Korean and Chinese Communists relied very heavily on certain articles of the 

21 
1949 Convention. Despite this, only two lists of American prisoners of war, 

totalling just 110 names, were ever sent to the Central Tracing Agency of the 

ICRC in Geneva (in August and September 1950, shordy after hostilities began), 

death marches occurred, prisoners of war were inadequately fed, and mail was 

allowed only on an irregular basis (usually to serve some propaganda purpose). 

Repeated efforts, which continued even during the course of the armistice 

negotiations, were unsuccessful in obtaining permission for the ICRC to send 

22 
a delegate into North Korea to inspect the prisonerof-war camps located there. 

C. North Vietnam 

Now, in Vietnam, we have a third instance of a Communist regime (North 
Vietnam) which has agreed to be bound by a humanitarian war convention but 
which, when the conditions arise under which the convention is to be applied, 
declines to comply with its provisions. North Vietnam persists in refusing to 
provide the names of persons held as prisoners of war, refusing to permit 
correspondence between the prisoners of war and their families, and refusing to 
permit the neutral ICRC delegates to inspect the prisoner-of-war camps so as 
to be able to determine whether the prisoners of war are, in fact, receiving the 
humane treatment to which they are entitled and which that regime long ago 

committed itself to provide. Similarly, the NLF refuses to consider itself bound 

23 
in any way, even by the limited provisions of Article 3 of the Convention. 

It would seem, at this point, to be fairly well established that the Communist 

countries, while ready to become parties to humanitarian war conventions, are 

not ready to comply with their provisions, for they are either not concerned 

about obtaining reciprocal treatment for their captured personnel, or, possibly, 



98 Levie on the Law of War 

they may assume that by their present method they will still obtain humane 
treatment for Communist personnel without any need to reciprocate — which 
is what has actually occurred in both Korea and Vietnam. Unfortunately, the 
result of this procedure can only be that eventually the other side in international 
armed conflicts, and the established government in civil armed conflicts, will 
refuse to apply the Convention until confirmation of the fact that it is being 
applied by the Communist side. Although this procedure certainly would leave 
much to be desired from the immediate humanitarian point of view, it might, 
in the long run, prove to be more humanitarian to the greater number of persons. 
Of course, the argument would undoubtedly be made, in opposition to such a 
procedure, that the obligation to comply with the Convention does not depend 
upon reciprocity, but upon the undertaking made to all the other parties thereto, 

and also that the Convention creates individual rights which may not be 

25 
withdrawn because of the failure of one side to comply. While this may well 

be true, it is unquestionably going to be increasingly difficult to persuade a 

country engaged in armed conflict with a Communist country, or an established 

government engaged in civil strife with a Communist uprising, that it must give 

Communist prisoners of war the benefits of the Convention while its own 

captured personnel do not even receive the minimum benefits of customary 

international law. They will undoubtedly tend to take the position that there 

must be a point at which the refusal of the Communist side to comply with the 

provisions of the Convention releases the other side from its obligations 

thereunder. 

II. Does Article 2 of the 1949 Convention Apply in Vietnam? 

Whether the fighting which is taking place in Vietnam constitutes an 
international armed conflict or a civil war has been the subject of considerable 
dispute. It is the official position of the United States that what is taking place 

in Vietnam is an international armed conflict. ' This position has received 

28 
support from unofficial sources. Opponents of United States participation in 

the Vietnamese hostilities assert that it is a civil war. Before proceeding to a 

discussion of specific instances of the improper treatment of prisoners of war, 

let us examine the law applicable under the various possibilities. 

The first paragraph of Article 2 of the 1949 Convention provides that: 

[T]he present Convention shall apply to all cases of declared war or of any other 
armed conflict which may arise between two or more of the High Contracting 
Parties, even if the state of war is not recognized by one of them. (Emphasis added). 

The meaning of the quoted provisions is clear; and at no time since the drafting 
of the Convention in 1949 has any state indicated the existence of any question 






Maltreatment of Prisoners 99 

with respect to that meaning. In fact, it is among those provisions of the 

Convention which have been given both uniform interpretation and general 

, 30 
approval. 

The only specific legal excuse ever advanced by North Vietnam for its 

insistence that the Convention is not applicable, and that persons captured by it 

are not entided to the humanitarian protections afforded by the Convention, 

has been that there is no "declared war." It is surely beyond dispute that there 

is an "armed conflict" in Vietnam between two or more of the parties to the 

Convention. Under these circumstances, the fact that there has been no 

declaration of war, or that a state of war is not recognized as existing, is 

completely irrelevant to the requirement to apply the Convention. There is, 

then, no validity whatsoever to the sole legal reason put forward by North 

Vietnam to justify its refusal to apply the Convention by which it voluntarily 

elected to be bound a number of years before the armed conflict in Vietnam 

32 
reached its present status. The wording used in drafting the first paragraph of 

Article 2 leaves no doubt that it was the intent of the Diplomatic Conference 

which approved it that the Convention be applicable in every instance of the 

use of armed force in international relations — and, beyond any shadow of doubt, 

this intent was attained. It appears equally clear that the refusal of North Vietnam 

to apply the Convention under the circumstances which exist in 

Vietnam — whether or not the United States is "waging a war of 

33 
aggression" — constitutes a blatant disregard of an international obligation, 

freely accepted. 

III. Does Article 3 of the Convention Apply in Vietnam? 

34 
Article 3 of the Convention is sometimes referred to as a "convention in 

35 -36 

miniature," or as a "mini-convention." The draftsmen attempted to include 

in a single article those basic humanitarian provisions which render 

prisoner-of-war status somewhat less horrendous than it inherently is — thus, in 

a relatively simple manner, calling to the attention of the participants in a 

non-international armed conflict the specific humanitarian rules which control 

their actions from the very outset. ' Unfortunately, even this minunum 

approach has frequently proven unsuccessful. 

The idea of including in an international convention a provision regulating 

civil wars was extremely novel. While the ICRC had been aiming for such 

an extension of the Geneva-type Conventions for many years, it was not 

successful in this respect until the 1949 Diplomatic Conference. The main 

objection voiced during the discussions in committee and in the plenary sessions 

of the Diplomatic Conference was that under a number of the proposals the 

established government would seemingly be required to apply the Convention 

even in cases of brigandage. The other problem that had to be solved was the 



1 00 Levie on the Law of War 

determination as to which provisions of the Convention should in an appropriate 
case be applied. 4 ' The compromise ultimately adopted left the term "armed 
conflict not of an international character" undefined — which, in effect, was a 
determination to make the term as broad and all-encompassing as possible. On 
the other hand, the minimum provisions which the parties to the armed conflict 
are obligated to apply are enumerated at length, rather than providing for the 
application of the entire Convention (as the working draft had done) or of all 
provisions falling within certain broad categories (as the USSR had proposed). 

What is the effect of Article 3 of the Convention on the parties to an "armed 
conflict not of an international character?" As far as the established government 
is concerned, if it is a party to the Convention it is bound by the provisions of 
Article 3 just as much as it would be bound by all of the provisions of the 
Convention in an armed conflict of an international character. And the same 
is true of third states which intervene to support either side in a civil war. 

The foregoing has caused comparatively few legal problems. Where 
problems arise, however, is with respect to the obligation of the insurgents. 
How, it will be asked, can the action of the established government in becoming 
a party to the Convention, an action perhaps taken many years before the 

rebellion was even contemplated, now be held to bind the insurgents ? ' This 

48 • 

is the position taken by the NLF. While it may have some minimum legal 

basis — this is the most that can be said for it — there are a number of valid legal 

theories under which a finding that the insurgents are bound by the provisions 

49 
of Article 3 can be fully justified. 

• -50 

While Soviet legal writers do not specifically state that insurgents are bound 

by the provisions of Article 3, that is certainly the only logical conclusion which 

can be drawn from their writings. Thus, their widely distributed textbook states: 

[T]he Soviet delegation secured the [1949 Diplomatic] Conference's recognition 
of a number of important humane clauses which were included in the new 
Conventions. For example, the obligatory character of the application during 
armed conflicts which are not of an international character of such principles as 
the humane treatment of persons not taking a direct part in military operations or 
who have ceased to take part in these operations as a result of sickness, illness or 
captivity, was recognized .... 

It has been said that the established government cannot be prejudiced by 
applying Article 3, "for no Government can possibly claim that it is entitled to 

make use of torture and other inhuman acts prohibited by the Convention as a 

52 
means of combating its enemies." It would certainly seem that this argument 

is equally applicable to the insurgent party, for how can armed conflict be 

conducted with different rules controlling the actions of the two contending 

sides ? 



Maltreatment of Prisoners 101 

Finally, there is much merit in a further statement made in the official ICRC 
interpretation of Article 3 of the Convention to the effect that: 

If an insurgent party applies Article 3, so much the better for the victims of the 
conflict. No one will complain. If it does not apply it, it will prove that those who 
regard its actions as mere acts of anarchy or brigandage are right .... 

Certainly, any insurgent force or alleged "national liberation movement" which 
does not comply with the provisions of Article 3 requiring humane treatment, 
and prohibiting violence, murder, torture and maltreatment of prisoners of war 
falls within the category of brigands and terrorists. 

What if, despite the foregoing, insurgents take the position that they are not 
bound by the provisions of Article 3, and this position gains acceptance? Except 

for the rare case such as Algeria, where the insurgents themselves sought 

55 ■ 

application of the Convention, Article 3 will become a dead letter. Unusual, 

indeed, would be the government willing to grant captured insurgents the 

benefits flowing from Article 3 while knowing that its own personnel, when 

captured, are tortured, otherwise maltreated and slaughtered. Although the 

requirement for granting these benefits to captured insurgents is stated to be 

absolute, and not to be dependent upon reciprocity, once again it will be 

extremely difficult to convince any governtnent and its people that such a 

unilateral compliance should be expected of them. 

We may then be in a position in which there is no applicable international 

legislation governing the actions of the insurgents and we would, therefore, have 

need to resort to the customary law of war. What are the customary rules 

accepted by the civilized nations of the world? Are they binding upon insurgents? 

IV. The Pertinent Customary Law of War 

In the opinion rendered by the Nuremberg International Military Tribunal 
(hereinafter referred to as IMT), which all Communist nations seemingly regard 
as a revelation second only to those of Marx, Engels and Lenin (and, it is to be 

assumed, of Mao in China), it is stated that by 1939 the 1907 Hague 

57 58 

Regulations were "declaratory of the laws and customs of war."' It is also 

there confirmed that an individual is not held as a prisoner of war for purposes 

of revenge or punishment, but merely to prevent him from further participation 

in the conflict and that he is, therefore, a helpless person whom it is contrary to 

military tradition to kill or injure. One of the subsequent Nuremberg Military 

Tribunals, in deciding The High Command Case, correctly construed the IMT 

opinion as holding that by 1939 both the 1907 Hague Regulations and the 1929 

Geneva Prisoner-of-War Convention "were binding insofar as they were in 

substance an expression of international law as accepted by the civilized nations 



1 02 Levie on the Law of War 

of the world." Every military force engaged in armed conflict, whether or not 
international in character, and whether representing an old or a new state, an 
established government or an insurgent party, is bound to comply with these 
established rules of the "civilized nations of the world." Failure to do so places 
that military force, and the political organization which it represents and from 
which it takes its orders and policies, in direct violation of the foregoing 
principles enunciated at Nuremberg. 

The Tribunal in The High Command Case did not limit itself to the general 
statement that the 1907 Hague Regulations and the 1929 Geneva 
Prisoner-of-War Convention now represented customary law. Inasmuch as 
there were obviously provision in those two Conventions dealing with details 
which could not be construed as customary law, the Tribunal assumed the task 
of designating exactly which provisions of the two agreements did fall within 
that category. It proceeded to review the specific provisions of each of the two 
Conventions and found that those provisions requiring humane treatment of 
prisoners of war, and those protecting them from acts of violence, insults, public 
curiosity, corporal punishment and acts of cruelty, were "an expression of the 
accepted views of civilized nations." 

Of course, the Tribunal in The High Command Case was concerned only with 
those aspects of the law accepted by civilized nations of the world under which 
violations had been proven in the case before it. Its list is not, therefore, 
all-inclusive. Some writers have extended it to include the four groupings listed 
in Article 3 of the Convention, probably on the extremely plausible theory 
that in rejecting both the ICRC and USSR proposals the Diplomatic 
Conference had selected for inclusion in Article 3 (to be binding on both sides 
in a civil war) only those humanitarian principles which already had received 
demonstrable acceptance by the civilized nations of the world. It also appears 
that both the Tribunals and the writers have definite ideas with respect to the 

imposition upon prisoners of war of vicarious punishment in the form of 

i 68 
reprisals. 

Do these customary rules of warfare apply to insurgents? There seems little 

doubt that they do, even though the rules have so frequendy been honored only 

in the breach. The Soviet textbook states that "the laws and customs of war 

apply not only to armies in the strict sense of the word, but also to levies, 

69 
voluntary detachments, organised resistance movements and partisans. " Under 

existing circumstances, where every insurgent movement other than one which 

is avowedly anti-Communist immediately becomes a "national liberation 

movement" enjoying full Communist support, further citation of authority 

would appear to be redundant. 

From the foregoing, it may be properly concluded that apart from any 

international legislation represented by the Hague or Geneva or other 



Maltreatment of Prisoners 103 

Conventions, minimum customary law requires that prisoners of war be treated 
humanely; forbids the use against them of all forms of violence including corporal 
punishment, torture, cruelty and killing; and protects them from insults and 
public curiosity. With this in mind, we may now proceed to an examination of 
the incidents reported to have occurred or to have been threatened in Vietnam, 
applying the provisions of the Convention generally, those of Article 3, or 
customary international law where appropriate. 

V. Charges Made Against the United States 

It has already been pointed out that the United States responded-prompdy to 

the ICRC letter concerning the application of the Geneva Conventions in 

.71 
Vietnam and committed itself to apply the 1949 Convention. This 

commitment was thereafter adopted by the various nations which have furnished 

military forces to support South Vietnam and it has been reiterated on several 

appropriate occasions. Although, strangely enough, no report has been found 

of a Vietcong or North Vietnamese charge of improper treatment of their 

captured personnel by United States niilitary forces in Vietnam, there has been 

one charge of improper action in this respect made in the United States. 

As early as 1964, when American personnel were serving in Vietnam solely 

as advisers to South Vietnamese military units, reports began to reach the United 

States of the maltreatment of Vietcong prisoners of war by members of the South 

Vietnamese combat forces. American photographers and newsmen were 

present during these episodes and, presumably, American military personnel 

were also present. Photographs of this nature continued to appear in the 

American press from time to time during 1965 and occasionally, although much 

more rarely, during subsequent years. In a few instances American personnel 

were pictured standing by while the maltreatment of the prisoners of war 

occurred. These incidents apparently took place either at the scene of the 

fighting or during evacuation from it. 

Humanitarian reaction to these clear indications of violations of the 

77 
Convention quickly appeared in the United States. ' The legal problem 

presented by these incidents, in view of the nature of the United States position 

in Vietnam, is whether the United States had a duty or was in a position to do 

more than remonstrate with the South Vietnamese authorities. 

There is no provision in the Convention making a contracting party 

responsible for violations committed by one of its allies against prisoners of war 

captured and held by that ally. A search of the Final Record of the 1949 

Diplomatic Conference which drafted the Convention has failed to bring to 

79 

light even a suggestion to this effect made by any delegation. ' The reasons for 
this lacuna are obvious. To have included such a provision would have created 
vicarious responsibility for a situation which, in the great majority of cases, could 



1 04 Levie on the Law of War 

not be remedied by the state so held responsible. Moreover, no state would 
willingly accept a responsibility which could well bring it into sharp conflict 
with one or several of its allies during the course of a life-or-death struggle. 

There was, then, no legal duty imposed upon the United States by the 1949 
Convention to ensure that South Vietnamese troops did not maltreat personnel 
captured by them. Of course, it is equally clear that the United States (and every 
other contracting party) is under a moral obligation to exert all its influence to 

bring about full compliance with the relevant provisions of the Convention by 

• -80 

any other party engaged in armed conflict. 

When units of the United States armed forces were committed to combat a 

new situation arose, because, unlike the earlier period just mentioned, the 

United States itself then began to take prisoners of war. These prisoners were 

turned over to the South Vietnamese for detention in prisoner-of-war camps. 

At first, the transfer of custody was made in the field immediately upon capture. 

But apparently because most of the incidents of maltreatment occurred at this 

time and in this area, in mid-1966 the United States changed its procedure. 

Thereafter, prisoners of war captured by United States units were evacuated to 

divisional headquarters and from there directly to the rear-area prisoner-of-war 

camps maintained by the South Vietnamese. The United States 

Commander-in-Chief in Vietnam has stated categorically that "these prisoners 

are not being mistreated. They are handled in accordance with the provisions 

tiis 

83 



82 
of the Geneva Conventions." There is no evidence to indicate that his 



statement is not correct, nor have any claims been made which contradict it. 
Of course, even after prisoners of war captured by United States forces reach 
the camps and are turned over to the custody of the South Vietnamese, the 
United States remains under a contingent responsibility for their humane 
treatment in accordance with the provisions of the Convention. 

VI. Charges Made Against South Vietnam 

There appears to be little doubt that at least well into 1966 South Vietnamese 
combat troops regularly maltreated captured enemy personnel by using threats, 
torture, and other acts of violence in order to obtain intelligence information. 
These acts were and remain direct violations of the law of war, whether 
considered from the point of view of the entire Convention, Article 3, or 
customary international law. The combined pressure of the ICRC and the 
United States (and, perhaps, of other allied countries) has apparently gradually 
made itself felt, at least at the official level. The Government of South Vietnam 
has complied with the Convention by a liberal interpretation of the provisions 
of Article 4 defining the categories of persons entided to prisoner-of-war status, 
by supplying lists of persons detained as prisoners of war to the Central Tracing 
Agency of the ICRC, by disseminating to its troops information concerning 



Maltreatment of Prisoners 105 

the duties imposed upon captors by the Convention and by other methods of 
instruction of its troops, and by permitting unlimited inspection visits to the 
prisoner-of-war camps by delegates of the ICRC. ' The fact that reports of 
further instances of maltreatment of prisoners of war by South Vietnamese 
combat troops have become more sporadic probably indicates that the campaign 
of education has had some degree of success. However, it may also mean that 
South Vietnamese combat commanders have been able to conceal most of such 
incidents from those who might report them. 

To summarize: while the South Vietnamese Government has now 
substantially complied with the obligations which the Convention imposes upon 
it, during the course of a period extending over several years there was apparently 
an officially countenanced practice of the use of torture on newly-captured 
prisoners of war by South Vietnamese combat troops for the purpose of 
extracting information from them. The South Vietnamese Government appears 
now to accept the fact that such conduct constituted a direct and major violation 
of the Convention and, therefore, in 1966 instituted a campaign of education 
which seems to have been at least partially successful in putting an end to this 
grossly illegal practice. However, instances of maltreatment of newly-captured 
prisoners of war by South Vietnamese combat troops continue to be reported. 
The individuals responsible for such incidents, both soldiers who commit the 
actual violence and commanders who permit and even encourage these acts, are 
guilty of violations of the Convention and of the customary law of war. 

VII. Charges Made Against North Vietnam 
A. Parading Prisoners of War 

With respect to the North Vietnamese treatment of American prisoners of 

- i 91 

war we have only the information which they have seen fit to disclose. 

However, even this limited source of information has revealed one major 
violation of the Convention and the threat of what was asserted to be another. 
While this latter was apparently prevented by an unprecedented mobilization of 
world opinion by the United States, it will be discussed below in section VII B. 
On July 6, 1966, presumably to whip up local support for the trial of captured 
American pilots as "war criminals,'' the North Vietnamese authorities caused 
these men, handcuffed in pairs, to be paraded through the crowd-lined streets 

of Hanoi. Word of the incident was broadcast by Radio Hanoi and press 

94 95 

releases and photographs were issued by the official North Vietnamese press 

agency. 

The United States Government immediatelv charged that this constituted a 

violation of the Convention. The ICRC clearly was of the same opinion, for 

on July 14, 1966, it drew the attention of the North Vietnamese Government 



1 06 Levie on the Law of War 

to the fact that the Convention specifically prohibited the subjection of prisoners 
of war to public curiosity. ' The North Vietnamese did not deny the occurrence 
of the incident; they merely called attention to their previous communications 
concerning the nonapplicability of the Convention. 

In May, 1967, Agence France Presse (the French news agency) reported from 
Hanoi that three captured American pilots, one of whom was apparently 
suffering from an injury, "were paraded through angry, shouting crowds" on 

the streets of Hanoi and were later "put on display" at the International Press 

• 99 
Club in Hanoi. Once again the United States Government immediately 

charged that this constituted a "flagrant violation" of the Convention and stated 

that it was sending a protest to North Vietnam through the ICRC. 

Over a century ago Francis Lieber's first codification of the customary law of 

war included a statement to the effect that prisoners of war were not to be 

101 
subjected to any "indignity." The 1929 Geneva Prisoner-of-War 

102 
Convention, " the predecessor of the Convention with which we are here 

concerned, had (in its Article 2) a prohibition against subjecting prisoners of war 

to "insults and public curiosity." In interpreting this provision in the course of 

World War II, the Judge Advocate General of the Army said: "The 'public 

curiosity' against which Article 2 . . . protects them is the curious and perhaps 

103 
scornful gaze of the crowd. ..." During World War II a group of American 

prisoners of war was marched through the streets of Rome by the Nazis as a 

propaganda measure. After the war the Nazi commander responsible for the 

march was tried and convicted of the war crime of failing to protect prisoners 

104 
of war in his custody from insults and public curiosity. The International 

Military Tribunal for the Far East, the Pacific counterpart of the International 

Military Tribunal of Nuremberg fame, included in its opinion a heading entitled 

"Prisoners of War Humiliated" and listed thereunder various episodes in which 

prisoners of war had been marched down city streets and exhibited to jeering 

. 105 

crowds, specifically labeling such treatment as a violation of the law of war. 

It has already been noted that the Military Tribunal which heard The High 

Command Case at Nuremberg found that the protection of prisoners of war from 

insults and public curiosity was a part of the customary law of war recognized 

by civilized nations. 

Both Articles 3 and 13 of the Convention contain provisions which prohibit 

the exhibiting of prisoners of war by parading them through city streets; and it 

would appear that this rule has most probably attained the status of being part 

107 
of the customary law of war. It follows that the actions of North Vietnamese 

authorities on the two occasions mentioned (and on other less well publicized 

occasions) were violations of the Convention and of the customary law of 

108 
war. 



Maltreatment of Prisoners 107 
B. War Crimes Trials 

It will be recalled that in answering the letter from the ICRC in August, 

1965, North Vietnam referred to captured American pilots as "major [war] 

criminals caught in flagrante delicto and liable for judgment in accordance with 

109 
the laws of the Democratic Republic of Vietnam. ' ' Many statements of similar 

import were subsequently made by the North Vietnamese. By mid-July, 

1966, press dispatches from Communist newsmen in Hanoi were mentioning 

111 
that trials were definitely planned and tension began to build in the United 

112 
States. It was then that the United States mounted a diplomatic offensive 

which resulted in the intervention of personages from around the world, 

including those who sided with the United States position in Vietnam, those 

113 
who opposed it, and those who were neutral. On July 23, 1966, the North 

Vietnamese Government announced the appointment of a committee "to 

114 
investigate United States 'war crimes'" and then, on that same day, North 

Vietnam President Ho Chi Minh took advantage of a cabled inquiry from the 

Columbia Broadcasting System to state that there was "no trial in view" for the 

American pilots. A few days later Ho was quoted as saying that the "main 

criminals" were not captured pilots, "but the persons who sent them 

there — Johnson, Rusk, McNamara — these are the ones who should be brought 

to trial." For ten days in July, 1966, there was excitement and debate on this 

subject throughout the world, with claims, counterclaims, and citation of legal 

authorities and purported legal authorities for and against the trial. 

Actually, the statement and allegations made by the North Vietnamese in 
their August 31, 1965, letter to the ICRC and frequendy thereafter pose two 
interwoven questions concerning the captured American pilots: (1) are they 
entided to the status of prisoners of war? and (2) do the North Vietnamese have 
the right to try them for alleged war crimes ? It will be appropriate to discuss 
these two questions in the order stated. 

The captured pilots are all members of the United States Navy and Air Force. 
They were captured when forced to eject from their planes while flying combat 
missions over North Vietnam. They were wearing American flight uniforms 
when captured and made no attempt to hide their identity. (Of course, this series 
of statements includes a number of assumptions — but they all appear to be 
reasonable ones and there is no indication that any one of them is really disputed.) 
These facts being accepted, the American pilots are entided prima facie to 

prisoner-of-war status under the 1907 Hague Regulations, the 1929 Geneva 

1 18 
Prisoner of- War Convention, and the 1949 Geneva Prisoner-of-War 

1 19 
Convention. In fact, it would be difficult to imagine a more clear-cut case 

of entitlement to such status. 



1 08 Levie on the Law of War 

The North Vietnamese apparently do not contest the facts stated and assumed 

above, but they attempt to avoid the conclusion which necessarily flows from 

1 20 
these facts by asserting that the Convention does not apply to "war criminals." 

The syllogism would be: war criminals are not entitled to the protection of the 

Convention; American pilots are war criminals; therefore, American pilots are 

not entitled to the protection of the Convention. Both the major and the minor 

premises of that syllogism are incorrect. The North Vietnamese position 

therefore necessitates a brief review of the events preceding and following the 

approval of Article 85 of the Convention by the 1949 Diplomatic 

r c 121 

Conference. 

When the war in the Pacific ended in 1945, General Yamashita, who had 

commanded the unsuccessful Japanese defense of the Phillipine Islands, was 

charged with a number of war crimes and was brought to trial before an 

American Military Commission in Manila. His counsel contended that he was 

entided to all of the trial protections contained in the 1929 Prisoner-of-War 

Convention. These protections were denied to him and on appeal to the United 

States Supreme Court (after his conviction and death sentence) the denial was 

affirmed on the ground that the trial protections contained in that Convention 

122 
applied only to trials for post-capture — not pre-capture — offenses. 

In the preparatory work which preceded the 1949 Diplomatic Conference, 

the ICRC convened a group of "Government Experts" who recommended, as 

one variation from the 1929 Convention, a provision that prisoners of war 

prosecuted for pre-capture offenses should enjoy the benefits of the Convention 

until convicted after a regular trial. When this was submitted to the XVIIth 

International Red Cross Conference at Stockholm in 1948, where the final draft 

which was to be the working draft for the 1949 Diplomatic Conference was 

prepared, it was decided to change the provision drafted by the Government 

Experts so that prisoners of war would continue to benefit by the provisions of 

123 
the Convention even after conviction of a pre-capture offense. 

At the Diplomatic Conference, the USSR proposed an amendment to the 

draft provision under which once a prisoner of war had been convicted of a war 

crime (apparendy this meant a conventional war crime) or a crime against 

. . 124 • • 

humanity, he could be treated as an ordinary criminal. ' This was, in effect, a 

return to the recommendation made by the Government Experts. General 

Slavin, chief delegate of the USSR, stated to the committee charged with the 

preparation of the Prisoner-of-War Convention, that the USSR proposal 

applied only to prisoners of war who had been convicted. 4 The committee's 

report to the Plenary Meeting called attention to the difference of approach 

represented by the Stockholm draft and the USSR proposal, and stated that the 

great majority of the committee considered that even after a prisoner of war had 

been convicted of a pre-capture violation of the laws and customs of war, he 



Maltreatment of Prisoners 1 09 

1 ?& 
should continue to enjoy the protection of the Convention. The Diplomatic 

Conference rejected the Soviet proposal and approved the Stockholm draft 

127 
provision. 

The effect of Article 85 of the Convention was, then, to change the rule 

128 
expounded in Yamashita and other similar cases. Now a prisoner of war retains 

the benefits of the Convention from the moment of capture to the moment of 

release and repatriation. If, while in captivity, he is tried and convicted of a 

pre-capture violation of the law of war he is entided to all the judicial safeguards 

of the Convention. 

The USSR and all of the other Communist countries, both those present at 

the Diplomatic Conference in Geneva and those which subsequently adhered 

130 
to the Convention, have made reservations to Article 85. This fact caused 

some concern to the United States Senate when it was asked to give its advice 

and consent to the ratification of the Convention by the President. In its report 

to the Senate the Committee on Foreign Relations said: 

[I]n the light of the practice adopted by Communist forces in Korea of calling 
prisoners of war "war criminals," there is the possibility that the Soviet bloc might 
adopt the general attitude of regarding a significant number of the forces opposing 
them as ipso facto war criminals, not entitled to the usual guaranties provided for 
prisoners of war. As indicated above, however, the Soviet reservation expressly 

deprives prisoners of war of the protection of the convention only after conviction 

131 
in accordance with the convention. 

When North Vietnam advised the Swiss Government of its adherence to the 
four 1949 Geneva Conventions in June 1957, the communication included a 
reservation to Article 85 reading as follows: 

The Democratic Republic of Vietnam declares that prisoners of war prosecuted 
for and convicted of war crimes or crimes against humanity, in accordance with 

the principles laid down by the Nuremberg Court of Justice shall not benefit from 

132 
the present Convention, as specified in Article 85. 

Having made this reservation, it must be assumed that the North Vietnamese 

authorities fully understood its meaning — and it is difficult to find any real 

133 
ambiguity in it so far as the present problem is concerned. The American 

pilots have not been "prosecuted and convicted." Under Article 85 of the 

Convention and the North Vietnamese reservation to it, they are entitled to the 

benefits of the Convention until prosecution and conviction for war crimes or 

crimes against humanity have occurred. The North Vietnamese contention that 

the American pilots are "war criminals" and not entitled to the protection of 

the Convention is, therefore, without merit. It is, in and of itself, a major 



1 1 Levie on the Law of War 

violation of the Convention to arbitrarily deny prisoner-of-war status to 
individuals entitled to that status. If the North Vietnamese desire to comply with 
the international commitment which they have made by voluntarily adhering 
to the Convention, they are under an obligation to recognize that American 
pilots captured while flying combat missions over North Vietnam are entitled 
to the status of prisoners of war and to the protections provided by the 
Convention which flow from that status. 

The first question posed above, are American pilots entitled to the status of 
prisoners of war, must be answered in the affirmative. This leads us to the second 
question, do the North Vietnamese have the right to try them for alleged war 
crimes? 

In the discussions which took place in connection with the drafting of Article 
85, it was at no time suggested by any delegation that prisoner-of-war status 
should protect an individual from prosecution for an alleged pre-capture offense 
which constituted a violation of the law of war. In fact, all of the parties who 
engaged in the discussion apparently assumed that this was the rule. As we have 
just seen, the only dispute on this subject concerned the regime under which 
the detaining power would be entitled to place the individual after his trial and 
conviction for a pre-capture offense. Under the circumstances, there seems to 
be little doubt that the second question posed, do the North Vietnamese have 
the right to try the American pilots for war crimes alleged to have been 
committed prior to capture, should also be answered in the affirmative. 

However, this answer requires amplification, because standing alone it is 
subject to misconstruction. In the first place, the right to try a prisoner of war 
for an offense which he is alleged to have committed prior to capture does not 
mean that there is a right to treat him prior to trial and conviction in the manner 
in which he might be treated after trial and conviction. (This, of course, is 
inherent in the discussion and resolution of the first question on this subject 
discussed immediately above.) In other words, a prisoner of war retains the status 
of prisoner of war, and all the protections incident thereto, at least until he has 
been finally convicted. 

In the second place, while it appears that the North Vietnamese charge against 

the American pilots is that they have been guilty of bombing nonmilitary targets, 

135 
such as civilian residential areas, * at this stage in the development of the law 

of war, there may be considerable doubt expressed as to whether even 

"target-area" bombing, a much more indiscriminate and inhumane act than that 

apparently charged against the American airmen, is a violation of international 

law. During World War II both sides engaged in this type of warfare. No one 

who lived through that period or has read its history could have forgotten the 

German bombing of such targets as Warsaw, London, Coventry and Rotterdam, 

and the Allied bombing of Berlin, Essen, Cologne and Tokyo. No political 



Maltreatment of Prisoners 1 1 1 

leader, no military commander, and no airman was ever convicted of anv alleged 
war crime arising out of these activities. One will look in vain in the opinions 
of the LY1T or of the LMTFE for any reference to such activities as constituting 
a war crime. For more than ten years the ICRC has been endeavoring., so far 
with not even a modicum of success, to evolve a convention which would 
protect the civilian populations in time of war and which would be acceptable 
to the governments. ' This proposed Convention, in its Article 10, specifically 
forbids target-area bombing. The fact that it is considered necessary to include 
such a prohibition in a new draft international convention on the law of war 
would seem to indicate rather conclusively that no such prohibition is presently 
included therein. And, as has been stated, if target-area bombing is not 
definitely oudawed, then certainly the lesser charge which appears to have been 
levelled against the American pilots does not come within a prohibited category. 

In the third place, we have moved far along the road from the era of vicarious 
punishment to a point where individuals are pumshed only for their own acts. 
While evidence, such as "confessions," might be available to the North 
Vietnamese with respect to some of the airmen, what of the others ? Why is the 
charge of being a war criminal levelled against every captured American airman 
held by the North Vietnamese? " Certainly, there is no evidence available to 
them that every captured American airman participated in bombing or other 
attacks on purely Chilian targets. Some of the airmen were probably shot down 
on their first missions before they could drop a bomb. Some were probably 
flying in unarmed reconnaissance planes, perhaps as photographers. Some were 
probably flying fighter protection armed only with air-to-air weapons. These, 
and probably many others, are within categories against whom no legitimate 
war-crimes charge can be laid, even assuming that it can against the others. 

Finally, there arises the problem of whether prisoners of war accused of 
pre-capture war crimes can be or should be tried during the course of hostilities. 
On this subject the author has previously said: 

While there was never any concrete proposal made at the Diplomatic 
Conference that trials of prisoners of war for pre-capture offenses should be 
postponed until the cessanon of hostilities, the matter was the subject of 
inconclusive discussion during the debate on Article 85. two delegates (Lamarle 
of France and Slavin of the U.S.S.R.) expressing the opinion that such trials should 
not be put offuntil the close of hostilities, and one delegate (Gardner of the United 
Kingdom) expressing the opposite view. The International Committee of the Red 
Goss has long taken the posiuon that, if such a trial is conducted during the course 
of hostiliaes, an accused does not have a fair opportunity to produce all of the 
evidence which might be available to disprove or lessen his responsibility. 

As we have already seen, a number of pnsoners of war were tried for alleged 
pre-capture offenses during the course of World War II. The patent unfairness of 



1 1 2 Levle on the Law of War 

these trials glaringly reveals the danger of trials for pre-capture offenses conducted 
during the course of the war. 

To summarize: captured American airmen are entitled to the status of 
prisoners of war until such time as they have been prosecuted and convicted of 
pre-capture violations of the law of war; while they may legally be tried during 
the course of hostilities, there are serious practical objections to such a procedure; 
and, if they are tried, they must be afforded all of the judicial safeguards contained 
in the Convention. 

VIM. Charges Made Against the Vietcong 

Very little information is available as to how many prisoners of war, American 
or South Vietnamese, are held by the Vietcong; even less is known as to how 
they are being treated. However, there is reason to know that they do hold some 
American prisoners of war — and that there have been at least two identical 
instances of major violations of the law of war in the treatment of prisoners by 
the Vietcong. 

As we have seen, despite Vietcong insistence to the contrary, the generally 

accepted position appears to be that insurgents such as the Vietcong are bound 

• 143 
by the provisions of Article 3 of the Convention; and that, in any event, they 

1 44 
are at a minimum bound by the customary law of war. Specifically, it appears 

to be well established that customary international law prohibits the use of 

violence and acts of cruelty against prisoners of war and, in all probability, also 

• 145 
prohibits making them the objects of reprisals. 

On April 9, 1965, a Vietcong terrorist was tried, convicted and sentenced to 

death by a South Vietnamese court. At that time the Vietcong announced that 

if the sentence of execution was carried out, Gustav C. Hertz, a kidnapped 

146 
civilian American aid officer, would be shot. The terrorist was apparently not 

executed. Whether or not the threat against Hertz was the reason for the 

clemency shown the terrorist has not been disclosed. 

On June 22, 1965, another Vietcong terrorist was executed by a South 

Vietnamese firing squad in Saigon after he had been tried, convicted and 

sentenced for acts of terrorism by a South Vietnamese special military court. 

Three days later both Radio Hanoi and the Liberation Radio announced that 

an American soldier held as a prisoner of war by the Vietcong (Sergeant Harold 

G. Bennett) had been executed in reprisal for the execution of the Vietcong 

148 
terrorist. The United States labeled the act as "murder"; and a statement 

released by the Department of State said that "people around the world cannot 

help but be appalled and revolted by this show of wanton inhumanity." 

On September 22, 1965, three more Vietcong terrorists were executed in Da 

Nang after a trial, conviction and death sentence by a South Vietnamese court. 



Maltreatment of Prisoners 113 

Four days later, on September 26, the Liberation Radio announced that the 
Vietcong had retaliated by the executions of two American prisoners of war, 
Captain Humbert R. Versage [Versace] and Sergeant Kenneth M. Roraback. 

Once again the United States labeled these reprisal executions as "murder" and 

• 151 
as violations of the Convention. It filed a protest with the ICRC which was 

152 
transmitted to and rejected by the NLF. 

A "reprisal" is defined as an otherwise illegal act committed by one side in 
an armed conflict in order to put pressure on the other side to compel it to 
abandon a course of illegal acts which it has been committing and to comply 
with the law of war. For a reprisal (a normally illegal act) to be legal there 
are three requirements: the act of the state against which it is directed must have 
been illegal; it must not be directed against an individual who, by the law of 
war, is specifically protected against reprisals or against acts of the nature that the 
contemplated reprisal will take; and it must be directed against the state which 
first violated the law of war. 

Were the alleged acts of reprisal of the Vietcong mentioned above valid 
applications of the rules governing reprisals? The first requirement for a valid 
reprisal is that the act or acts against which it is directed have been illegal. The 
acts against which these reprisals were directed were the June 22 and September 
22, 1965, executions of the Vietcong terrorists. Were those executions illegal? 
According to the newspaper accounts, in each instance the individuals had been 

tried, convicted and sentenced by a South Vietnamese court in accordance with 

154 
the law of South Vietnam. While the National Liberation Front called the 

155 
June 22 execution "[a] crime of bloodthirsty men" and presumably feels the 

same about the September 22 execution, it has never indicated in what way the 

executions constituted a crime — other than the implication that it is a crime to 

try, convict and execute a Vietcong apprehended in the course of committing 

what was probably a Vietcong approved and ordered act of terrorism. 

The reprisals, then, failed to meet the first requirement for a valid reprisal, 

that it be called forth by an illegal act by the other side. Now let us examine the 

second requirement for a reprisal to be valid under the law of war — that it not 

be directed against a specifically protected person. Shortly after the Second 

Hague Peace Conference of 1907 the German War Office issued a War Book 

which escaped general attention until some years later. During the course of 

World War I, it became well known and widely condemned because of its 

emphasis on the the principle of military necessity and its disregard for the 

customary and conventional law of war. Concerning reprisals against prisoners 

of war the War Book said: 

As regards the admissibility of reprisals, it is to be remarked that these are 
objected to by numerous teachers of international law on grounds of humanity. 



1 1 4 Levie on the Law of War 

To make this a matter of principle and apply it to every case, exhibits however, 
"a misconception due to intelligible but exaggerated and unjustifiable feelings of 
humanity, of the significance, the seriousness and the right of war. It must not be 
overlooked that here also the necessity of war, and the safety of the State are the 
first consideration, and not regard for the unconditional freedom of prisoners from 
molestation." 

That prisoners should only be killed in the event of extreme necessity, and that 
only the duty of self-preservation and the security of one's own State can justify 
a proceeding of this kind is today universally admitted. 

Thus, even a directive which was subjected to almost universal condemnation 
limited reprisals against prisoners of war to cases of "extreme necessity," 
self-preservation, and the security of the State. 

World War I so vividly demonstrated the inhumanity of reprisals against 
helpless prisoners of war that restrictions on the use of this procedure were 

incorporated into a number of agreements reached by the belligerents for the 

157 
protection of prisoners of war during the course of those hostilities. * A specific 

provision completely prohibiting reprisals against prisoners of war was thereafter 

158 
included in the 1929 Convention. 

Writing in 1942, an American scholar stated that "it seems reasonable to 

assume that reprisals, with prisoners of war as the objects, are permissible within 

159 
limits in customary international law. ' ' A few years later the legality of reprisals 

against civilian hostages was considered at great length in The Hostage Case, a 

decision by one of the Nuremberg Military Tribunals. The Tribunal said: 

It is a fundamental rule of justice that the lives of persons may not be arbitrarily 
taken. A fair trial before a judicial body affords the surest protection against 
arbitrary, vindictive, or whimsical application of the right to shoot human beings 
in reprisal. It is a rule of international law, based on these fundamental concepts 
of justice and the rights of individuals, that the lives of persons may not be taken 
in reprisal in the absence of a judicial finding that the necessary conditions exist 
and the essential steps have been taken to give validity to such action. . . . We 
have no hesitancy in holding that the killing of members of the population in 
reprisal without judicial sanction is itself unlawful. 

Inasmuch as members of the general public had not then been recognized as 
specially protected persons, it would appear that, a fortiori, everything the 
Tribunal said about the protections to which civilians were entitled would apply 
to prisoners of war. 

In considering the opinion quoted above, another Nuremberg Military 
Tribunal, which would probably not have permitted reprisal executions under 
any circumstances, stated in its opinion in The High Command Case: 



Maltreatment of Prisoners 115 

In the Southeast Case [Hostage Case], United States v. Wilhelm List, et al., 
(Case No. 7), the Tribunal had occasion to consider at considerable length the 
law relating to hostages and reprisals. It was therein held that under certain very 
restrictive conditions and subject to certain rather extensive safeguards, hostages 
may be taken, and after a judicial finding of strict compliance with all preconditions 
and as a last desperate remedy hostages may even be sentenced to death. It was 
held further that similar drastic safeguards, restrictions, and judicial preconditions 
apply to so-called "reprisal prisoners." If so inhumane a measure as the killing of 
innocent persons for offenses of others, even when drastically safeguarded and limited, is ever 
permissible under any theory of international law, killing without full compliance with all 
requirements would be murder. If killing is not permissible under any circumstances, then a 
killing with full compliance with all the mentioned prerequisites still would be murder. 

... In the instance of so-called hostage taking and killing, and the so-called 
reprisal killings with which we have to deal in this case, the safeguards and 
preconditions required to be observed by the Southeast judgment were not even 
attempted to be met or even suggested as necessary. Killings without compliance 
with such preconditions are merely terror murders. If the law is in fact that hostage 
and reprisal killings are never permissible at all, then also the so-called hostage and 
reprisal killings in this case are merely terror murders. 

And in reviewing the overall war crimes program which followed World War 
II and the law which evolved from it, the United Nations War Crimes 
Commission, in publications issued in 1947 and in 1949, stated without 
equivocation that the killing of prisoners of war without due cause violated both 
customary and conventional international law. 

Undeniably, then, there are compelling arguments to support the position 
that reprisals against prisoners of war are prohibited by customary international 
law. But even if one is unwilling to accept these arguments, certainly customary 
international law does specifically prohibit all acts of cruelty and violence against 
prisoners of war, — who are, therefore, protected persons in so far as this type 
of treatment is concerned. And with equal certainty it can be stated that in all 
civilized countries killing is an act both of cruelty and of violence. Hence, killing 
a prisoner of war as a reprisal constitutes cruelty and violence against a person 
who is protected from such treatment by customary international law. The 
reprisals, then, also failed to meet the second requirement for a valid reprisal, 
that they not be directed against a protected person. 

The third requirement for a legal reprisal under international law is that it be 
directed against the state which had first violated the law of war. The "crime" 
charged by the NLF as the basis for the reprisal was, beyond dispute, an act of 
the South Vietnamese authorities, and not of the American authorities. The 
alleged acts of terrorism were committed within the territorial jurisdiction of 
South Vietnam, the culprits were tried by South Vietnamese courts which 
reached the decisions finding guilt and ordered the death sentence imposed, and 



1 1 6 Levie on the Law of War 

the executions were carried out by the South Vietnamese authorities. If reprisals 
were justified, and no ground for them has so far come to light, under the law 
of war they should have been directed against the state which had by its alleged 
illegal conduct created the need for and the right to take reprisals. This was 
obviously not done — and the reason why it was not done is equally obvious. 

To summarize: to be authorized by international law, reprisals, which are 
otherwise illegal acts, must meet certain specific conditions. The undisputed 
facts clearly disclose that the Vietcong had no legal justification for taking reprisals 
and, moreover, that the reprisals were taken against prisoners of war who were 
protected persons under customary international law and against whom reprisals, 
especially of a cruel or violent character, were specifically prohibited both by 
international legislation binding upon the Vietcong and by customary 
international law. Under these circumstances, the reprisals taken against the 
American prisoners of war were nothing less than murder and constituted war 
crimes for which, pursuant to the Nuremberg principles upon which the 
Communists so heavily rely, those who ordered the executions and those who 
carried them out are all subject to penal sanctions. 

IX. Conclusion 

A number of conclusions have been reached in the course of this discussion. 
To recapitulate: 

1. There is no legal justification for the position taken by the North 
Vietnamese that they are not bound by the 1949 Geneva Prisoner-of-War 
Convention. At the very least, they are bound by the provisions of Article 3 
thereof. 

2. While there is some legal basis for the position taken by the NLF that it 
is not even bound by the provisions of Article 3 of the Convention, on balance 
the decision probably should be that it is so bound. In any event, it is bound by 
the customary law of war. 

3. A state which is a party to hostilities is not legally responsible when an ally 
violates the provisions of the Convention, but it is morally bound to attempt to 
persuade its ally to conform to the obligations accepted by adhering to the 
Convention. It does have a contingent responsibility for the proper treatment 
of prisoners of war captured by its armed forces and turned over to the custody 
of an ally for detention. 

4. Torture or other maltreatment of prisoners of war in order to obtain 
intelligence information from them, or for any other reason, or for no reason, 
constitutes a serious violation of the Convention. 

5. Parading prisoners of war before a hostile populace constitutes a violation 
of the prohibition, contained in conventional and customary international law, 



Maltreatment of Prisoners 117 

against subjecting them to insults, public curiosity and humiliating and degrading 
conduct. 

6. Even under a reservation to Article 85 of the Convention, such as that 
made by North Vietnam, it is a serious violation of the Convention to deny 
captured enemy personnel prisoner-of-war status on the ground that they are 
war criminals prior to their prosecution and conviction of a pre-capture war crime 
by a trial court in which they have been accorded all of the required judicial 
safeguards. 

7. There is no legal impediment to the trial of a prisoner of war for an alleged 
pre-capture war crime while hostilities are still being conducted. However, as 
noted immediately above, such a prisoner of war continues to be entided to all 
of the protection of the Convention, including the judicial safeguards therein 
contained. 

8. Reprisals against prisoners of war are prohibited by the Convention and, 
probably, by customary international law. In any event, a reprisal which includes 
a corporal act, such as killing, against a prisoner of war is prohibited by Article 
3 of the Convention and by customary international law, both of which prohibit 
cruelty and acts of violence against prisoners of war. 

And finally, although the application of the Convention is presumably not 
dependent upon reciprocity, persistent and regular refusal by the Communist 
nations to be bound by it during actual cases of armed conflict in which they 
are involved may compel other countries to give second thoughts to the doctrine 
which requires compliance without reciprocal compliance. 

Notes 

1. P.L. 88-408, 79 Stat. 384, approved August 10, 1964 

2. The International Committee of the Red Cross is a century-old humanitarian organization composed 
entirely of Swiss citizens which maintains a strictly neutral status in all armed conflicts, offering its services 
equally to both sides. Since 1864 it has been the motivating force behind the series of humanitarian "Geneva" 
Conventions. Its status and activities in wartime are officially recognized and formalized in the 1949 Geneva 
Conventions, note 4 infra. 

3. This letter, dated June 11, 1965, was sent to the governments of the United States, the Republic of 
Vietnam (hereinafter referred to as South Vietnam), and the Democratic Republic of Vietnam (hereinafter 
referred to as North Vietnam). The ICRC stated therein that it would "endeavor to deliver it also to the 
National Liberation Front." 60 Am. J. Int'l L 92 (1966), 4 Int'l Legal Mat. 1171 (1965). 

4. There are four of these Conventions. Our concern here will be solely with the 1949 Geneva 
Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 
135 [hereinafter referred to as the Convention]. The United States ratified this Convention on August 2, 1955. 
6 U.S.T. 3316, T.I A.S. No. 3364, 213 U.N.T.S. 383. South Vietnam adhered to it (as the State of Vietnam) 
on Nov. 14, 1953 (181 U.N.T.S. 351). North Vietnam adhered to it on June 28, 1957 (274 U.N.T.S. 339). 
Ratifications and adherences by other States involved in Vietnam, either directly or indirecdy, are as follows: 
Republic of the Philippines, Oct. 6 1952 (141 U.N.T.S. 384); USSR, May 10, 1954 (191 U.N.T.S. 367); 
Thailand, Dec. 29, 1954 (202 U.N.T.S. 332); People's Republic of China, Dec. 28, 1956 (260 U.N.T.S. 
442); Australia, Oct. 14, 1958 (314 U.N.T.S. 332); New Zealand, May 2, 1959 (330 U.N.T.S. 356); and the 
Republic of Korea, Aug. 16, 1966 (55 Dep't State Bull. 694 (1966)). 

5. Concerning the Prisoner-of-War Convention, the ICRC letter, supra note 3, said: "In particular 
the life of any combatant taken prisoner, wearing uniform or bearing an emblem clearly indicating his 



118 Levie on the Law of War 

membership in the armed forces, shall be spared, he shall be treated humanely as a prisoner of war, lists of 
combatants taken prisoner shall be communicated without delay to the International Committee of the Red 
Cross (Central Information Agency), and the delegates of the ICRC shall be authorized to visit prison camps." 
The items so specified clearly indicate that the ICRC considered the armed conflict in Vietnam to be of an 
international character. Indeed, the tenor of the letter leaves no doubt on this score. 

6. 53 Dep't State Bull. 447 (1965), 4 Int'l Legal Mat. 1173 (1965), 5 Int'l Rev. of the Red Cross 477 
(1965). 

7. 4 Int'l Legal Mat. 1174 (1965), 5 Int'l Rev. of the Red Cross 478 (1965). As we shall see, these 
promises have not been fully carried out. 

8. 5 Int'l Legal Mat. 124 (1966), 5 Int'l Rev. of the Red Cross 527 (1965) (emphasis added) 

9. 5. Int'l Rev. of the Red Cross 636 (1965). The final assertion was undoubtedly included because of 
the charge frequendy advanced by American combat troops that the Vietcong made a practice of shooting 
enemy wounded found on the battlefield. N.Y. Times, Dec. 1, 1965, at 1, col. 8. 

10. We will not be concerned with violations of the technical provisions of the Convention; nor will 
we be concerned with the violations of a number of the more important humanitarian provisions of the 
Convention which have undoubtedly occurred, but as to which there is a paucity of acceptable facts presently 
available. 

11. The Republic of Malawi adhered to the four 1949 Geneva Conventions on Jan. 5, 1968, becoming 
the 117th Party to those Conventions. Letter to the author from the Swiss Federal Political Department, Jan. 
31, 1968. 

12. See note 34 infra. 

13. For arguments supporting this position, see the remarks of General Nikolai Slavin, chief of the Soviet 
delegation at the 1949 Diplomatic Conference which drafted the Conventions. Final Record of the Diplomatic 
Conference of Geneva of 1949, Vol. IIB, at 13-14 [hereinafter referred to as Final Record]. 

14. See text in connection with notes 65-67 infra. 

15. Regulations attached to Hague Conventions No. IV of 1907 Concerning the Laws and Customs of 
War on Land, 36 Stat. 2277, T.S. No. 539, 100 Brit. For. & State Papers 338. 

16. 1929 Geneva Convention for the Amelioration of the Condition of Wounded and Sick of Armies 
in the Field, 47 Stat. 2074, T.S. No. 847, 118 L.N.T.S. 303. 

17. 1 Report of the International Committee of the Red Cross on its Activities during the Second World 
War 412 (1948) [hereinafter referred to as ICRC Report]. To the same effect see Trainin, Hitlerite 
Responsibility under Criminal Law 40 (1945). 

18. ICRC Report 404-436. 

1 9. Dallin, German Rule in Russia 420 (1957). A rumor to this general effect caused the German Embassy 
in Ankara, where the negotiations were being carried on, to raise the question with the ICRC delegate. ICRC 
Report 415. Many persons continue to believe that most of the Soviet soldiers who were repatriated to Russia 
from prisoner-of-war camps at the end of World War II were either executed or were sent to Siberia and that 
the knowledge of the fate which awaited them was the cause of the wave of suicides which occurred in the 
camps after the fall of Germany. Some sought and obtained asylum in Switzerland. Castren, The Present Law 
of War and Neutrality 165 (1954). 

20. Le Comite International de la Croix-Rouge et le Conflit de Coree: Recueil de Documents 16 (1952). 

21. Hermes, Truce Tent and Fighting Front 141, 145 (1966); Vatcher, Panmunjom 116 (1958). 

22. British Ministry of Defence, Treatment of British Prisoners of War in Korea 3-34 (1955); Vatcher, 
Panmunjom, photograph opposite 114 (1958), Joyce, Red Cross International 200-201 (1959). 

23. See text in connection with notes 8 and 9 supra. 

24. Although not engaged in armed conflict with a Communist opponent, the French indirectly followed 
this course of action during the civil war in Algeria with the result that the Provisional Government of the 
Algerian Republic, the political arm of the rebellion, not only committed itself to apply the 1949 Geneva 
Conventions, but considered it appropriate to actively seek French compliance. Algerian Office, White Paper 
on the Application of the Geneva Conventions of 1949 in the Franco-Algerian Conflict (1960). The White 
Paper cites (at 13) a newspaper article by Professor Roger Pinto, of the Faculty of Law of the University of 
Paris, giving as one reason for the French reluctance to apply the Conventions "the absence of reciprocity in 
respect to the humanitarian rules." 

25. This argument is particularly applicable to Article 3 dealing with armed conflict not of an international 
character, note 34 infra, inasmuch as a proposed provision requiring reciprocity, which had been included in 
the working draft, was intentionally deleted by the 1949 Diplomatic Conference. Castren, Civil War 86 (1966); 
Coursier, L'Evolution du Droit International Humain, 99 Hague Recueil des Cours 357, 395 (1960); Pinto, 
Les Regies du Droit International Concernant la Guerre Civile, 114 Hague Recueil des Cours 451, 530 
(1965). 



Maltreatment of Prisoners 119 

26. Under the third paragraph of Article 2, parties to the Convention are not bound with respect to 
another parrs' to the conflict which is not a party to the Convention unless "the latter accepts and applies the 
provisions thereof." Under these circumstances it is somewhat difficult to accept the contention that a party 
to the Convention is absolutely bound when the other party to the conflict is a party to the Convention, even 
though the other parrs - patendy flaunts it and does not es-en purport to apply its prosisions. Such a construction 
merely encourages adherences by states svhich has-e no intention of es T er complying with the Convention. Is 
this, perhaps, ss'hat has occurred? 

At the Hearings held to determine svhether the Senate should give its adsice and consent to the ratification 
of the 1949 Conventions by the President, the then General Counsel of the Department of Defense, Wilbur 
M. Brucker. testified: "Should war come and our enemy should not comply ssith the cons T entions, once we 
both had ratified — ss'hat then ss'ould be our course of conduct? The ansss-er to this is that to a considerable 
extent the United States svould probably go on acting as it had before, for, as I pointed out earlier, the treaties 
are very largely a restatement of hosv sve act in war anyway. 

"If our enemy shoss-ed by the most flagrant and general disregard for the treaties, that it had in fact thrown 
off their restraints altogether, it ss-ould then rest ssith us to reconsider ss-hat our position might be." Hearings 
on the Geneva Cons-entions for the Protection of War Victims Before the Senate Comm. on Foreign 
Relations, 84th Cong., 1st Sess., at 11 (1955). 

27. Meeker, The Legality of U.S. Participation in the Defense of Viet-Nam, 54 Dep't State Bull. 474, 
477 (1966). In a speech delis-ered to the Foreign Policy Association on Nov. 14, 1967, Secretary of State Rusk 
ridiculed those ss-ho take the position that the fighting in Vietnam is "just a cisil svar." 57 Dep't State Bull. 
735, 740 (1967). Of course, his argument svas based largely upon the ground that North Vietnamese Army 
units had been committed to the fighting in South Vietnam; \s-hile those svho argue that it is a civil svar drasv 
the opposite conclusion from this same fact! Secretary Rusk does strengthen his argument by pointing to the 
post-World War II problem of the bifurcated States svhich appear in each instance to have become two separate 
sovereignties: Germany, Korea, and Vietnam. 

28. Moore, Underwood &c McDougal, The Las\-fulness of United States Assistance to the Republic of 
Vietnam 32 (unpublished ms., Yale Lasv School, May 1966); Moore, The Lass-fulness of Military Assistance 
to the Republic of Vietnam, 61 Am J. Ind L. 1, 2 (1967); Johnson, Aquinas, Grotius and the Vietnam War, 
16 Quis Custodiet? 69, 67, 70 (1967); Kutner, "International" Due Process for Prisoners of War, 21 U. Miami 
L. Rev. 721, 730 (1967). Many of those svho support the official position do not find it necessary to reach 
the question of the nature of the conflict. Deutsch, The Legality of the United States Position in Vietnam, 52 
A.B.A.J. 436 (1966). In Partan, Legal Aspects of the Vietnam Conflict, 46 BUT. Rev. 281, 299 (1966), the 
author discusses the problem but reaches no conclusion. See also, the ICRC letter, notes 3 and 5 supra. 

29. Fried (ed.), Vietnam and International Lasv 63 (1967); Falk, International Lasv and the United States 
Role in the Viet Nam War, 75 Yale L.J. 1122, 1127 and passim (1966); Standard, United States Intervention 
in Vietnam is not Legal, 52 A.B.A.J. 627, 630 (1966); Wright, Legal Aspects of the Viet-Nam Situation, 60 
Am. J. Int'l L. 750, 756 (1966). Standard appears to argue from a conclusion already reached ss'hen, after 
pointing out the State Department position, he says: "It is hardly open to dispute that the present conflict in 
South Vietnam is essentially a cisil ss-ar." Certainly, Messrs. Rusk and Meeker (the latter the Legal Adviser of 
the Department of State) svould dispute it! And Kutner, supra note 28, just as easily reaches the opposite 
conclusion, stating: "Considering Communism's commitment to the success of all svars of 'national liberation' 
and the participation of United States military on a large, escalating scale, it \s-ould be unrealistic to consider 
the conflict as purely domestic. " The dispute on this question clearly indicates the correctness of the statements 
that "the disiding line between international and internal s\ r ar is often exceedingly tenuous" (Greenspan, 
International Law and its Protection for Participants in Unconventional Warfare, 341 Annals 30, 31 (1962)) 
and that "all international svar is, to some extent, cisil ss-ar, and all cisil svar, international ss r ar." Pinto, supra 
note 25, at 455 (translation mine). 

30. See Stone, Legal Controls of International Conflict 313 n.85 (Rev. ed. 1959), svhere the follosving 
appears: ". . . Art. 2, para. 1, of the resised Prisoners of War Cons-ention, 1949, declaring its prosisions 
applicable not only to declared svar but also to 'any armed conflict . . . es-en if a state of svar is not recognized' 
by a belligerent Contracting Party, is a welcome recognition of the need to place the point beyond doubt." 
And in Pictet. Commentary on the Geneva Convention Relative to the Treatment of Prisoners of War 22-23 
(1960) [hereinafter referred to as Commentary], it is stated: "By its general character, this paragraph deprives 
belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There 
is no need for a formal declaration of svar, or for the recognition of the existence of a state of svar, as preliminaries 
to the application of the Cons-ention. The occurrence of de facto hostilities is sufficient. 

"... Any difference arising between tsvo States and leading to the intervention of members of the armed 
forces is an armed conflict ssithin the meaning of Article 2, es-en if one of the Parties denies the existence of 
a state of svar." And, finally, in Institute of Lasv, Academy of Sciences of the USSR, International Lasv 420 



1 20 Levie on the Law of War 

(ca. 1960) [hereinafter referred to as Soviet International Law], this statement is made: "The absence of a formal 
declaration of war does not deprive hostilities which have in fact begun, of the character of war from the point 
of view of the need to observe its laws and customs. The Geneva Conventions of 1949 require that their 
signatories apply these Conventions, which are a component part of the laws and customs of war, in the event 
of a declaration of war or in any armed conflict, even if one of the parties to the conflict does not recognize 
the existence of a state of war." 

31. A news article from Cairo which appeared in the N.Y. Times, Feb. 12, 1966 at 12, col. 3, stated: 
"The sources quoted the [North Vietnamese] Ambassador as having rejected the American contention that 
United States airmen captured in attacks on North Vietnam should be treated as prisoners of war under the 
terms of the Geneva conventions. 

He was reported to have told influential Egyptians that this was impossible "because this is a case where 
no war has been declared" by either country. 

32. It will have been noted that the Convention provision quoted in the text states that the Convention 
is applicable in an armed conflict between two or more High Contracting Parties even if a state of war is not 
recognized by one of them. In Vietnam a state of war, in the legal sense, is not recognized by any of the parties 
involved. 52 Dep't State Bull. 403 (1965). Does this remove the armed conflict in Vietnam from the reach of 
Article 2? To answer this question in the affirmative would seem to be direcdy contrary to the intent of the 
Article and to the object and purpose of the Convention. The ICRC states that it does not avoid Article 2. 
Pictet, supra note 30, at 23. Lauterpacht believed that it was the intention of the draftsmen to make the 
Convention applicable even if a state of war was not recognized by "one or both of them." 2 Lauterpacht's 
Oppenheim, International Law 369 n.6 (7th ed. 1952). 

33. One of the major purposes of the provision was to preclude a State from indulging in the excuses 
put forward by Japan during the China Incident and by Nazi Germany during World War II as a basis for not 
applying earlier humanitarian conventions: that there had been no declaration of war, that legally a state of 
war did not exist, that the existence of a state of war was not recognized, that the armed conflict was only a 
"police action," etc. See the Judgment of the International Military Tribunal for the Far East 1008-09 (mimeo. 
1949) [hereinafter referred to as IMTFE Judgment], Latyshev; The 1949 Geneva Conventions Concerning 
the Protection of Victims of War, 7 The Soviet State and Law 121 (1954) (original in Russian). 

34. Article 3 states: 

In the case of armed conflict not of an international character occurring in the territory of one 
of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the 
following provisions: 

(1) Persons taking no active part in the hostilities, including members of armed forces who 
have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any 
other cause, shall in all circumstances be treated humanely, without any adverse distinction founded 
on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever 
with respect to the above-mentioned persons: 

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment 
and torture; 

(b) taking of hostages; 

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment; 

(d) the passing of sentences and the carrying out of executions without previous judgment 
pronounced by a regularly constituted court affording all the judicial guarantees which are recognized 
as indispensable by civilized peoples. 

(2) The wounded and sick shall be collected and cared for. 

An impartial humanitarian body, such as the International Committee of the Red Cross, may 
offer its services to the Parties to the conflict. 

The Parties to the conflict should further endeavor to bring into force, by means of special 
agreements, all or part of the other provisions of the present Convention. 

The application of the preceding provisions shall not affect the legal status of the Parties to the 
conflict. 

35. Statement of Mr. Morosov (USSR), Final Record, supra note 13, Vol. IIB, at 325-26; Pictet, 
Commentary, supra note 30, at 34. 

36. Pictet, The XXth International Conference of the Red Cross: Results in the Legal Field, 7 J. Int'l 
Comm'n Jurists 3, 15 (1966). 

37. "[F]uture generations may consider it a sad commentary on our times that the nations of the world 
thought it necessary in these conventions to provide that in case of an internal conflict, murder, mutilation, 






Maltreatment of Prisoners 121 

torture and other cruel treatment should not be practiced on prisoners and other noncombatants...." Yingling 
& Ginnane, The Geneva Conventions of 1949 in 46 Am. J. Int'l L. 393, 396 (1952). 

38. Greenspan, supra note 29, at 40; Note, The Geneva Conventions of 1949: Application in the 
Vietnamese Conflict, 5 Va. J. Int'l L. 243, 249 (1965). 

39. Pictet, supra note 36; de la Pradelle, Le Controle de L' Application des Conventions Humanitaires 
en cas de Conflit Arme, 2 Annuaire Francais de Droit International 343, 364 (1956). 

40. Pictet, Commentary, supra note 30, at 28-34. 

41. Id. at 32. During the debate General Slavin (USSR) made the following statement: "[T]he United 
Kingdom Delegation had alluded to the fact that colonial and civil wars were not regulated by international 
law, and therefore that decisions in this respect would be out of place in the text of the Conventions. This 
theory was not convincing, since though the jurists themselves were divided in opinion on this point, some 
were of the view that civil war was regulated by international law. Since the creation of the Organization of 
the United Nations this question seemed settled. Article 2 of the Charter provided that Member States must 
ensure peace and world security. . . . Colonial and civil wars therefore come within the purview of international 
law." Final Record, supra note 13, Vol. IIB, at 14. 

42. The Stockholm (working) draft would have made the entire Convention applicable. Id., Vol. I, at 
73. The provisions of the draft article proposed by the USSR would have obligated each party to an armed 
conflict not of an international character to implement all of the provisions of the Convention which guarantee 
"humane treatment of prisoners of war" and "the application of all established rules for the treatment of 
prisoners of war." Id., Vol. Ill, Annex 15, at 28. 

43. In construing the provision which was adopted, Pictet, Commentary, supra note 30, at 42, states: 
"In the case of armed conflict not of an international character . . . the Parties to the conflict are legally only 
bound to observe Article 3, and may ignore all the other Articles. . . ." 

44. Id. at 37; Note, The Geneva Conventions of 1949: Application in the Vietnamese Conflict, 5 Va. 
J. Int'l L. 243, 248 (1965). 

45. Pinto, supra note 25, at 529. Pinto says: "When the parties to the civil war receive foreign assistance, 
the assisting States have a strict obligation to comply with and to require compliance with Article 3. . . . Thus 
the United States and the Democratic Republic of Vietnam are equally responsible for the application of 
Article 3 in the civil war on the territory of South Vietnam." (Translation mine). 

46. Of course, established governments have not infrequently failed to comply with their obligations 
under Article 3 — but this was not necessarily because they considered Article 3 invalid per se. See note 24 
supra. As a matter of fact, when the French finally agreed to permit the ICRC to function in Algeria, it was 
specifically stated that this action was taken "in accordance with Article 3 of the Geneva Conventions." 
LeClercq, L' Application du Statut du Prisonnier de Guerre depuis la Convention de Geneve de 1949, in 43 
Revue de Droit International et de Droit Compare 35, 45 (1966). 

47. In Yingling & Ginnane, supra note 37, at 396, the authors, both lawyer-members of the United 
States delegation to the 1949 Diplomatic Conventions, said: "Insofar as Article 3 purports to bind the insurgent 
party to the conflict to apply its provisions, its legal efficacy may be doubted." 

48. See text in connection with note 9 supra. 

49. For a discussion of the several theories which have been advanced for holding a rebel organization 
bound by the provisions of Article 3, even though it had never itself agreed to be bound, see Note, The 
Geneva Convention and the Treatment ofPrisoners of War in Vietnam, 80 Harv. L. Rev. 851, 856-58 (1967). 
See also Lauterpacht, The Limits of the Operation of the Law of War, 30 Brit. Y.B. Int'l L. 206, 213 (1953), 
where that noted authority said: "The effect of these provisions [relating to armed conflict not of an 
international character] is to subject the parties to a civil war — including the party which is not a recognised 
belligerent — to important restraints of the law of war. . ." 

50. The correct jargon, of course, would be "national liberation movements." 

51. Soviet International Law, supra note 30, at 410; and see the further quotation from this textbook in 
note 69 infra. 

52. Pictet, Commentary, supra note 30, at 38 (emphasis in original). He also states: "What Government 
would dare to claim before the world . . . that, Article 3 not being applicable, it was entitled to leave the 
wounded uncared for, to torture and mutilate prisoners and take hostages? No Government can object to 
observing, in its dealings with enemies, whatever the nature of the conflict between it and them, a few essential 
rules which it in fact observes daily, under its own laws, when dealing with common criminals." Id. at 36-37. 
Unfortunately, experience shows that some governments do just what is described, but without any such bald 
admission 

53. Several years ago the suggestion was made that in any armed conflict in which United Nations forces 
were involved, they should not be bound by the law of war, but their opponent should be. The reaction to 



1 22 Levie on the Law of War 

this proposal was violent and caustic, and properly so. See Bothe, Le Droit de la Guerre et les Nations Unies 
(1967). 

54. Pictet, Commentary, supra note 30, at 37-38. Of course, if they are mere brigands, they are not 
entitled to the protection of the Convention. 

55. It is essential to bear in mind that the last paragraph of Article 3 specifies that the fact that a party 
complies with the provisions of the Article "shall not affect the legal status of the Parties to the conflict." This 
provision was obviously included in order to permit the established government to comply with Article 3 
without recognizing the existence of a state of belligerency with the insurgents. Paradoxically, in Algeria it 
was the insurgents themselves who called attention to this provision of the Article. Algerian Office White 
Paper, supra note 24, at 17-18. 

56. See note 25 supra; Pictet, Commentary, supra note 30, at 35, Draper, The Geneva Conventions of 
1949 at 114 Hague Recueil des Cours 59, 96 (1965). 

57. See note 15 supra. 

58. Nazi Conspiracy and Aggression: Opinion and Judgment 83 (1947). 

59. Id. at 61-62. In speaking of Nazi violations of the law of war, the IMT said (at 57): "Prisoners of 
war were ill-treated and tortured and murdered, not only in defiance of the well-established rules of 
international law, but in complete disregard of the elementary dictates of humanity. ..." 

60. United States v. von Leeb et al., 10 Trials of War Criminals Before the Nuernberg Military Tribunals 
1 (1948) [hereinafter cited as Trials]. This opinion carries over into Vol. 11 of the series. 

61. 1929 Geneva Convention Relative to the Treatment of Prisoners of War, 47 Stat. 2021, T.S. No. 
846, 118L.NT.S. 343. 

62. United States v. von Leeb et al., 10 Trials 1 at 11 Trials 532-34 (1948). 

63. Note, The Geneva Convention and the Treatment of Prisoners of War in Vietnam, 80 Harv. L. 
Rev. 851, 858 (1967). A well known French expert in this field has said: "These obligations [enumerated in 
Article 3] correspond to those which the domestic public law of civilized States recognizes, even in cases of 
insurrection, riot or civil war. . . . The summary execution of prisoners is prohibited." Pinto, supra note 25, 
at 532 (translation mine). 

64. United States v. von Leeb et al., 10 Trials 1 at 11 Trials 535-38. But see Draper, supra note 56, at 
90, where he states: "Undoubtedly, the prohibition of murder, mutilation or torture is absorbed in the 
customary prohibitions of the law of war. On the other hand the taking of hostages, outrages upon personal 
dignity, the passing of sentences by irregular tribunals, unfairly conducted, are not yet prohibited by the 
customary law of war. . . ." 

65. See note 34 supra. 

66. See text in connection with notes 42 and 43 supra. 

67. Pictet, Commentary, supra note 30, at 39 and 141; Smith, The Geneva Prisoner of War Convention: 
An Appraisal, 42 N.Y.U.L. Rev. 880, 889 (1967); Pinto, supra note 63. 

68. See text in connection with notes 156-163 infra. 

69. Soviet International Law, supra note 30, at 423. Elsewhere (at 407) the statement is made that "the 
laws and customs of war must be observed in any armed conflict." 

70. It is not unusual to find, after hostilities have ended, that many incidents (or at least many of the 
more gory details thereof) which have been reported during the course of hostilities, were basically figments 
of the imagination: perhaps a minor incident which has been built up out of all proportion to the actual facts 
by the addition of horrendous details, perhaps an entirely imaginary incident conceived by a public relations 
officer or a reporter when headline news was lacking. However, the major violations to be discussed herein 
are in the nature of admissions against interest: actions constituting, or allegedly constituting, violations by the 
United States and the South Vietnamese, reported by the American news media, and actions constituting, or 
allegedly constituting, violations by the North Vietnamese and the Vietcong, reported by Radio Hanoi and 
the Liberation Radio, or by other sources in Hanoi. (As the alleged violation mentioned in note 9 supra does 
not meet this criterion, it will not be discussed. It is, however, one of the most heinous violations not only of 
the Convention, but also of the customary law of war). 

71. See text in connection with note 6 supra. 

72. Joint Communique of the Honolulu Conference, Feb. 8, 1966, at 54 Dep't State Bull. 304, 305 
(1966), Joint Communique of the Manila Summit Conference, Oct. 25, 1966, at 55 Dep't State Bull. 730, 
731 (1966), Text of Communique of the Washington Meeting, April 21, 1967, at 56 Dep't State Bull. 747, 
749 (1967). The nations involved in the latter two meetings were Australia, New Zealand, the Philippines, 
South Korea, South Vietnam, Thailand, and the United States. 

73. That incidents of maltreatment of prisoners of war by American personnel have occurred is beyond 
dispute. There will never be a war fought in which there are not, at the very least, isolated instances of 
maltreatment of prisoners of war on both sides. The general moral environment in which the individual soldiers 



Maltreatment of Prisoners 1 23 

have been raised may be judged, and the training which they have received while in military service may be 
measured, by the frequency with which such incidents occur. While Clergy and Laymen Concerned About 
Vietnam in their book, In the Name of America (issued in February, 1 968 after this article had been substantially 
completed), allocates a chapter of 45 pages to the reprinting of published items about the maltreatment of 
prisoners of war, there is only an occasional, and frequently misleading, indication (usually based on hearsay) 
of such misconduct by American troops. The weakness of the "evidence" quoted to support the organization's 
thesis of misconduct is, in itself, extremely persuasive of the inaccuracy of the conclusion reached by one of 
the commentators (at 23) that "these combat practices are so widespread in their occurrence as to suggest that 
their systematic commission is a direct result of decisions reached at the highest levels of civilian and military 
command." When Ambassador Harriman sent the ICRC a Department of Defense report on the methods 
used by the several military services of the United States to disseminate information concerning the 
requirements of the Conventions, the ICRC President replied: "We are convinced that in the context of the 
war in Vietnam the U.S. Forces are devoting a major effort to the spread of knowledge on the Geneva 
Conventions." Letter from Samuel A. Gonard to W. Averell Harriman, January 5, 1968, on file in the 
Department of State. 

74. A series of photographs and extracts from news stories recording maltreatment of prisoners of war 
by the South Vietnamese which had appeared in a number of respected American publications were collected 
and published in a brochure entitled What are we tied to in Vietnam? by Massachusetts Political Action for 
Peace, Cambridge, Mass. (1964). 

75. St. Louis Post-Dispatch, Oct. 22, 1965, at 3B; id. Nov. 3, 1965, at 2A; id. April 27, 1966, at 2A; id. 
Feb. 9, 1968, at IB. 

76. Id. Dec. 30, 1965, at 1A. Photographs indicating kind and generous treatment by American personnel 
have also appeared (id. Mar. 5, 1966, at 2A, Mar. 6, 1966 at 12A), but these are suspect as they are self-serving 
and could easily have been posed for an enterprising photographer. 

77. The brochure referred to in note 74 supra is a good example of this reaction. 

78. A letter to the editor of the N.Y. Times from the Chairman of the University Committee on 
Problems of War and Peace at the University of Pennsylvania said: "Responsible American journalists have 
frequently reported the torture of Vietcong prisoners by their South Vietnamese captors. Because of these 
reports W. W. Rostow, chairman of the foreign policy research division of our State Department, was asked 
. . . 'why does the United States not abide by the Red Cross Convention in the treatment of Vietcong 
prisoners?' His reply was that the United States does not take prisoners in Vietnam, and that we were merely 
advisers to the South Vietnamese Government, which bore the responsibility for dealing with prisoners. 

Because of this immoral apathy, and narrow legalistic position taken by our State Department, neither the 
United States nor the South Vietnamese, nor the Vietcong, nor the North Vietnamese are committed to 
adhere to any of the 'sanctions established by international law for the protection of war prisoners.'" N.Y. 
Times, June 30, 1965, at 36, col. 5. The writer of the letter erred in both his assumptions and his conclusions, 
but he certainly raised the moral issue. 

79. This problem did arise in one context at the Diplomatic Conference — in connection with Article 
12, which concerns custody of prisoners of war transferred from one ally to another. Under Article 12 the 
transferring state retains some residual power with respect to prisoners of war it transfers, because it can request 
return of the prisoners to its custody where the transferee state is guilty of violating the Convention in their 
regard. Article 12 requires that this procedure be followed where the Protecting Power finds violations of the 
Convention and the Detaining Power does not correct them. The Communist countries have all reserved as 
to this Article, insisting that the capturing power remain fully responsible for any maltreatment suffered by 
prisoners of war at the hands of the transferee Detaining Power. See, for example, the USSR reservation made 
at the time of signing (75 U.N.T.S. 135, 460) and maintained at the time of ratification (191 U N.T S. 367). 

80. "The major United States effort, besides setting up its own procedures, has been to persuade the 
South Vietnamese to go along. [South Vietnamese] Government officials, once openly hostile to the 
convention, now grudgingly accept the American position. Much remains to be done, however, to persuade 
the average South Vietnamese soldier to stop using torture. Each soldier will soon be shown a training film 
prepared with American help. Most have already received booklets outlining the proper treatment of 
prisoners." N.Y. Times, July 1, 1966, at 6, col. 3. See also Pinto supra note 45. 

81. "United States ofmcials are quietly putting into effect an important change in their handling of 
prisoners of war. Vietcong and North Vietnamese fighters captured on the battlefield will no longer be turned 
over to the South Vietnamese Army immediately after the fighting has died down. Instead, they will be sent 
to American divisional headquarters and kept in American hand [sic] until they can be transferred to new 
Vietnamese prisoner-of-war compounds. . . . The system has been adopted to enable the United States to 
meet its responsibilities under Article 12 of the Geneva Convention of 1949 governing the treatment of 
prisoners of war. The article requires the country turning prisoners over to another country to guarantee their 



1 24 Levie on the Law of War 

well-being." N.Y. Times, July 1, 1966, at 6, col. 3. The current official directive establishing this procedure 
is United States Military Assistance Command, Directive No. 190-3, April 6, 1967. 

82. 55 Dep't State BuU. 336, 338 (1966). 

83. As stated in note 73 supra, there have without doubt been some acts of maltreatment of prisoners of 
war by American personnel. Thus, it was reported that in the trial by court-martial of Captain Howard B. 
Levy there was defense testimony that American Special Forces ("Green Beret") personnel maintained a 
"permissive policy toward the torture of Vietcong prisoners by the South Vietnamese" and that a bounty of 
$10 was paid to the Montagnards for every right ear brought in. N.Y. Times, May 25, 1967, at 2, col. 3. In 
view of the hearsay nature of the testimony, and the partisan context in which it was given, it does not fall 
within the criterion adopted for this article. For another incident of alleged maltreatment see St. Louis 
Post-Dispatch, Feb. 9, 1968, at IB, col. 1. 

84. See note 79 supra. The United States has officially acknowledged its contingent responsibility. Dep't 
State Vietnam Information Note, No. 9, Prisoners of War, Aug. 1967, at 3. It maintains small detachments 
of American military police at each South Vietnamese prisoner-of-war camp, apparently to ensure that its 
responsibility is being met. 

85. See text in connection with note 74-76 supra. When the ICRC considered that there was sufficient 
evidence to warrant raising the issue with the South Vietnamese authorities, the latter responded by conveying 
to the ICRC "a file on atrocities attributed to NLF forces. It also invited the Committee to investigate the 
plight of Vietnam prisoners held by the Democratic Republic of Vietnam." ICRC, The International 
Committee and the Vietnam Conflict, 6 Int'l Rev. of the Red Cross 399, 405 (1966) [hereinafter referred to 
as ICRC, Vietnam]. It does not appear that there was a denial of maltreatment by the South Vietnamese; 
rather there was a defense of tu quoque aimed at the Vietcong and the North Vietnamese. Whatever the merit 
of the cross-complaint, it is no excuse for violating the Convention. 

86. Id. at 404-05; 7 id. 188. For the categories of persons being given prisoner-of-war status, see para. 
4, United States Military Assistance Command, Directive No. 20-5, Sept. 21, 1966. 

87. E.g., 7 Int'l Rev. of the Red Cross 189 (1966). 

88. 6 id. 141 (1966); 7 id. 188 (1967). See also note 80 supra. 

89. 5 id. 300, 470, and 481 (1965); 6 id. 98, 405, 542, and 597 (1966); 7 id. 125 126, 188, 189, and 246 
(1967). For a report of an unofficial and unauthorized visit by an American newsman to Pleiku, one of the 
largest prisoner-of-war camps maintained by the South Vietnamese, see Gershen, A Close-Up Look at Enemy 
Prisoners, Parade, Dec. 10, 1967, at 10. These ICRC inspection visits to the camps which have uniformly 
included private and unsupervised consultations with selected prisoners of war designated by the ICRC 
delegate, do not appear to have brought to light any instances of major violations of the Convention once 
that captured personnel had reached the camps. 

90. Wyant, Barbarity in Vietnam Shocks U.S., St. Louis Post-Dispatch, Feb. 9, 1968, at IB, col. 1. The 
televised shooting of a just-captured Vietnamese by the head of the South Vietnamese National Police during 
the attack on Saigon early in 1968 served to highlight this problem. 

91. The sources of this information have included broadcasts over Radio Hanoi, information released 
by the official North Vietnamese press agency, and an occasional dispatch from foreign reporters based in 
Hanoi. Information in depth, the complete accuracy of which is questionable, has been disseminated through 
the medium of newsmen from other Communist countries. East German journalists and photographers were 
the source of the material used in the article, U.S. Prisoners of War in North Vietnam, Life, Oct. 20, 1967, 
at 21-33. These East German sources likewise provided the motion picture material purchased and televised 
by NBC late in 1967. Information concerning the treatment of South Vietnamese prisoners of war by the 
North Vietnamese is of insufficient reliability for discussion. 

92. See text in connection with notes 109-1 15 infra. 

93. N.Y. Times, July 8, 1966, at 3, col. 1. 

94. Id. July 13, 1966, at 1, col. 7, and 5, col. 1. 

95. Id. July 8, 1966, at 3. 

96. Id. at 3, col. 1. 

97. ICRC, Vietnam, supra note 85, at 404. Art. 13 of the Convention requires the protection of prisoners 
of war "against insults and public curiosity." Para. 1 (c) of Art. 3, quoted at note 34 supra, prohibits "outrages 
against personal dignity, in particular, humiliating and degrading treatment." 

98. For the first of these communications, see text in connection with note 8 supra. The new reply also 
stated that "the policy of the Government of the DRVN [Democratic Republic of Vietnam] as regards enemy 
captured in time of war is a humane policy. " (Emphasis added). The ambiguous italicized words could be interpreted 
as meaning "we have a policy of being humane to prisoners of war captured during a war, but this is not a 
war and, therefore, there is no obligation on our part to be humane"! 

99. N.Y. Times, May 9, 1967, at 15, col. 1. 



Maltreatment of Prisoners 1 25 

100. 56 Dep't State Bull. 825 (1967). 

101. Instructions for the Government of the Armies of the United States in the Field, General Orders 
No. 100, Apr. 23, 1863, Art. 75. 

102. See note 61 supra. 

103. 2Bull.JAG299(1943). 

104. Trial of Lt. Gen. Kurt Maelzer, 11 Law Reports of Trials of War Criminals 53 (1946) [hereinafter 
cited War Crimes Rep.]. 

105. IMTFE Judgment, supra note 33, at 1092-95 and 1030-31. 

106. See text in connection with note 64 supra. 

107. As we have seen, in so far as North Vietnam is concerned there are strong arguments for the position 
that the entire Convention is applicable and, that at a minimum, Article 3 of the Convention (note 34 supra) 
is certainly applicable despite the untenable position to the contrary taken by North Vietnam. It is therefore, 
not even necessary to find that this particular humanitarian rule has attained the status of being a part of the 
customary law of war in order to find that it is binding on North Vietnam. 

108. It has been mentioned that in the parade conducted on July 6, 1966, the prisoners were handcuffed 
in pairs. During the World War II commando raid on Dieppe the manacling of German prisoners of war by 
Canadian troops was itself challenged by the German Government as a violation of the law of war and resulted 
in a series of reprisals and counter-reprisals. For differing versions of this affair see British War Office, The 
Law of War on Land (Part III of the Manual of Military Law) 53 n.2(a) (1958); Castren, The Present Law of 
War and Neutrality 159 (1954); and ICRC Report, supra note 17, at 368-70. 

109. See text in connection with note 8 supra. 

110. N.Y. Times, Sept. 30, 1965, at 1, col. 6 and at 3, col. 3; id. Feb. 12, 1966, at 12, col. 3; id. July 13, 
1966, at 1, col. 7 and at 5, col. 1. An ICRC report stated: "The [North Vietnamese] Red Cross and the 
authorities of the DRVN have made known to the ICRC that the captured American pilots are treated 
humanely, but that they cannot, however, be considered as prisoners of war. The DRVN Government is in 
fact of the opinion that the bombing attacks constitute crimes for which these prisoners will have to answer 
before the courts and that the Third Geneva Convention (prisoners of war) is consequently not applicable to 
them...." ICRC, Vietnam, supra note 85, at 403. 

111. N.Y. Times, July 15, 1966, at 1, col. 3 and at 3, col. 1; id. July 19 1966, at 3, col. 1; id. July 20, 
1966, at 1, col. 8. The bombing of Hanoi and Haiphong had begun in June, 1966. 

112. Between July 15 and July 25, 1966, the newspapers in the United States carried several stories on 
this subject every day. Questions were asked of the President and statements were made which indicated that 
any trials, convictions, and executions would be followed in short order by severe retaliatory action by the 
United States. Id. July 19, 1966, at 3, col. 3; id. July 21, at 14, col. 2. 

113. Neutrals who sought to dissuade the North Vietnamese from their proposed course of action included 
U Thant, the Secretary General of the United Nations (id. July 17, 1966, at 8, col. 3), the Pope (id. July 21, 
1966, at 1, col. 5), and the ICRC (id. July 23, 1966, at 2, col. 6). Americans opposed to the war in Vietnam 
who interceded with the North Vietnamese included Norman Thomas, The National Committee for a Sane 
Nuclear Policy (id. July 20, 1966, at 1, col. 8) and the so-called Senate "doves," spearheaded by Senator Frank 
Church of Idaho (id. July 16 1966, at 1, col. 1 and at 3, col. 2). Many competent observers of the international 
scene consider that this latter appeal was probably the most effective on Communist pragmatism. 

114. Id. July 24, 1966, at 1, col. 1. 

115. Id. July 25, 1966, at 1, col. 8. 

116. Id. July 26, 1966, at 3, col. 2. 

117. Supra note 15, Art. 1. 

118. Supra note 61, Art. 1. 

119. Supra note 4, Art. 4. 

120. N.Y. Times, May 9, 1967, at 15, col. 1. This is also the only logical interpretation which can be 
placed on the letter of Aug. 31, 1965, from the North Vietnamese Government to the ICRC, note 8 supra. 
See also the ICRC report quoted in note 110 supra. 

121. Article 85 of the Convention reads as follows: "Prisoners of war prosecuted under the laws of the 
Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present 
Convention." 

122. Matter of Yamashita, 327 U.S. 1, 21, 22, 24 (1946). This position was adopted generally by war 
crimes tribunals and national courts after World War II. 4 War Crimes Rep. 78 (1948). At least one noted 
Soviet legal writer took the same position, stating: "On account of these inhuman crimes committed by him, 
Ritz ceased to be a soldier even before he was seized by units of the Red Army, and consequently did not 
become a war prisoner when he was seized. ..." Trainin, Hitlerite Responsibility under Criminal Law 88 
(1945). 



1 26 Levle on the Law of War 

123. Statement ofRJ. Wilhelm representing the ICRC. Final Record, supra note 13, Vol. IIA, at 318-19. 

124. The proposed amendment stated: "Prisoners of war convicted of war crimes and crimes against 
humanity under the legislation of the Detaining Power, and in conformity with the principles of the 
Nuremberg Trial, shall be treated in the same way as persons serving a sentence for a criminal offence in the 
territory of the Detaining Power." Id. at 319. 

125. Id. at 321. In a statement made to the Plenary Meeting, General Skylarov, another Soviet delegate, 
said that under the Soviet proposal prisoners of war guilty of war crimes or crimes against humanity, "once their 
guilt has been established and they have been sentenced by a regular court, " should no longer enjoy the benefits of 
the Convention. Id. Vol. IIB, at 303 (emphasis added). 

126. Id. Vol. IIA, at 570-71. In supporting the Soviet proposal in the discussion at the Plenary Meeting, 
the delegate from Czechoslovakia pointed out that "it concerns those prisoners of war who have been 
convicted" (id. Vol. IIB, at 305) and the Bulgarian delegate stated that "it is assumed that sentence has already 
been pronounced" and that "we are dealing with war criminals convicted as such." (Id. at 307). 

127. Id. at 311. The Soviet proposal was rejected by a vote of 8-23-7. The only change made by the 
Diplomatic Conference in the Stockholm (working) draft was the substitution of the word "retain" for the 
word "enjoy" in the English version. 

128. Yingling & Ginnane, supra note 37, at 410; Public Prosecutor v. Oie Hee Koi et al., [1968] 2 W.L.R. 
715, 727. 

129. Pictet, Commentary, supra note 30, at 425. Those safeguards are found in Arts. 84-88 and 99-108, 
inclusive, of the Convention. After World War II several Japanese commanders were tried and convicted of 
being responsible for unfair trials of captured American airmen. Trial of Lt. Gen. Shigeru Sawada, 5 War 
Crimes Rep. 1 (1948); Trial of Lt. Gen. Harukei Isayama, id. at 60; Trial of Gen. Tanaka Hisakasu, id. at 66. 
The IMTFE reviewed and condemned, by implication, the Japanese trials and executions of American airmen. 
IMTFEJudgment, supra note 33, at 1024-31. In its "Notes on the Case" dealing with United States v. Alstotter 
et al. (The Justice Case), 6 War Crimes Rep. 1, 103 (1948), the United Nations War Crimes Commission 
enumerated the requirements for a fair trial, its conclusions being drawn from a number of sources and 
representing customary international law. 

130. The reservation to Article 85 made by the USSR at the time of signature (75 U.N.T.S. 135, 460) 
and maintained at the time of ratification (191 U.N.T.S. 367) states: "The Union of Soviet Socialist Republics 
does not consider itself bound by the obligation, which follows from Article 85, to extend the application of 
the Convention to prisoners of war who have been convicted under the law of the Detaining Power, in 
accordance with the principles of the Nuremberg trial, for war crimes and crimes against humanity, it being 
understood that persons convicted of such crimes must be subject to the conditions obtaining in the country 
in question for those who undergo their punishment." In response to an inquiry concerning the meaning of 
the foregoing reservation, the Soviet Foreign Ministry said, in a note dated May 26, 1955, to the Swiss Federal 
Council, that: "[T]he reservation . . . signifies that prisoners of war who, under the laws of the USSR have 
been convicted of war crimes or crimes against humanity must be subject to the conditions obtaining in the 
USSR for all other persons undergoing punishment in execution of judgments by the courts. Once the sentence 
has become legally enforceable, persons in this category consequently do not enjoy the protection which the 
Convention affords." Pictet, Commentary, supra note 30, at 424 (emphasis added). 

131. Senate Comm. on Foreign Relations, Geneva Conventions for the Protection of War Victims, S. 
Exec. Rep. No. 9, 84th Cong., 1st Sess. 28-29 (1955). For some of the factors which caused Senate 
perturbation, see Levie, Penal Sanctions for Maltreatment of Prisoners of War, 56 Am. J. Int 1 L. 433, 443 
n.37 (1962). 

132. The original adherence, including the reservations, was in the Vietnamese language. It was 
accompanied by a French translation. Letter to the author from the Swiss Federal Political Department, Jan. 
31, 1968. The French translation includes the words "poursuivis et condamnes" — "prosecuted and convicted." 
274 U.N.T.S. 340 (emphasis added). 

133. It has been suggested, for example, that the "and" in the words "prosecuted for and convicted of 
might have been intended to be read disjunctively. Note, The Geneva Convention and the Treatment of 
Prisoners of War in Vietnam, supra note 63, at 862. Under this interpretation it is said that a prisoner of war 
could be deprived of the benefits of the Convention by the mere filing of a charge against him alleging a war 
crime or a crime against humanity. But "et" is not given a disjunctive intendment in French, and if "et" or 
"and" were to be construed disjunctively this would mean that a prisoner of war prosecuted but not convicted 
(prosecuted and acquitted) could still be denied the benefits of the Convention because one of the two 
alternatives possible under the disjunctive construciton would have been met — he would have been 
prosecuted. This obviously does not make sense! 

134. The argument might be made that absent the Convention we are relegated to customary international 
law — and that this is what the courts applied in Matter of Yamashita, 327 U.S. 1, and other similar cases. But 



Maltreatment of Prisoners 1 27 

as we have already seen in so far as North Vietnam is concerned, it is undeniable that the Convention is 
applicable (see text in connection with notes 27-33 supra) and, that in any event at a minimum, Article 3 is 
applicable (see text in connection with notes 34-45 supra). Para. 1(d) of Art. 3 (note 34 supra) specifies the 
protections to be accorded persons charged with offenses. 

135. See Dep't State Memorandum to the International Committee of the Red Cross, Entitlement of 
American Military Personnel Held by North Viet Nam to Treatment as Prisoners of War, etc., July 13, 1966. 
Charges that the use of napalm bombs is a violation of the law of war have also been heard with some frequency. 
An Indian scholar has said, in this regard: "[Djuring the Second World War and during the hostilities in Korea 
the use of flame-throwers and of napalm and incendiary bombs appear to have been regarded as legal." Singh, 
Nuclear Weapons and International Law 151 (1959). While the question may not be free from doubt, it is 
certainly sufficiently controversial to preclude unilateral decision by the North Vietnamese with respect thereto. 

136. During the course of the July, 1966, excitement Senator Thomas J. Dodd of Connecticut, who had 
been a member of the prosecution at Nuremberg, issued a statement in which he pointed out: "No Luftwaffe 
pilot, or Luftwaffe commander for example, was brought to trial because of his participation in the bombing 
of London despite the fact that London bombings were directed primarily at the civilian population...." 112 
Cong. Rec. 16, 224 (daily ed., July 25, 1966). 

137. After several years of preparatory drafting by the ICRC, the Draft Rules for the Limitation of the 
Dangers Incurred by the Civilian Population in Time of War were published and distributed in 1956 so that 
they could be discussed and acted upon at the XlXth International Red Cross Conference in New Delhi in 
1957. They were discussed at New Delhi, and they have been the subject of much discussion since then, but 
their status as an unofficial proposal has not changed. 

138. The commentary to Art. 10 states, in part: "It was ... to prevent target area bombing from being 
accepted as a regular practice, or even condoned, that the ICRC felt it desirable to insert the relevant rule in 
Article 10 and thus to lay emphasis on the prohibition of indiscriminate bombing." Id. at 91. 

139. One expert in this field takes the rather paradoxical position that target-area bombing was legal during 
World War II, and so remains, but that indiscriminate bombing is a violation of the law of air warfare. Spaight, 
Air Power and War Rights 271, 272, and 277 (3d ed. 1947). 

140. It has been intimated that the North Vietnamese take the position that as the United States is guilty 
of making "aggressive war," the airmen are all guilty of crimes against peace. This is the category of war crime 
specified in Article 6(a) of the London Charter of the International Military Tribunal, which reads: "Crimes 
against peace: Namely, planning, preparation, initiation, or waging a war of aggression, or a war in violation 
of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the 
accomplishment of any of the foregoing." Nazi Conspiracy and Aggression: Opinion and Judgment 3 (1947). 
Article 5(a) of the IMTFE differs only in minor respects. IMTFE Judgment, supra note 33, Annex 5-A, at 21. 
Apart from the trials of the major Nazi leaders by the IMT and by some of the Nuremberg Military Tribunals 
and of the major Japanese leaders by the IMTFE, no one has ever been tried for this war crime which, obviously, 
can only be committed by those who have the power to make war, and not by those who do the fighting. In 
United States v. von Leeb et al., 10 Trials 1, at 11 Trials 489 (1948), the Military Tribunal said: "If and as long 
as a member of the armed forces does not participate in the preparation planning, initiating or waging of 
aggressive war on a policy level his war activities do not fall under the definition of Crimes against Peace. It 
is not a person's rank or status, but his power to shape or influence the policy of his State, which is the relevant 
issue for determining his criminality under the charge of Crimes against Peace." This is the real meaning of 
the announcement by Ho Chi Minh that no trials of American airmen were then contemplated, but that Rusk, 
McNamara and Johnson were in a different category. See text in connection with note 116 supra. 

141. One American sailor, Apprentice Seaman Douglas Hegdahl, who fell overboard from his ship and 
some hours later was rescued by North Vietnamese fishermen and made a prisoner of war, is apparendy 
receiving exactly the same treatment as the alleged war criminals — no mail, no relief packages, no visits by the 
ICRC, etc. 

142. Levie, supra note 131, at 461-62. A footnote to the last sentence quoted points out that when trials 
are postponed until after the cessation of hostilities the deterrent effect of widespread publicity is lost. Id. at 
462 n.115. 

143. See text in connection with notes 47-56 supra. Certainly, the 59 nations which drafted and signed 
the Convention and the 117 which have ratified or adhered to it had no qualms about the validity of Article 
3. Only Portugal made a reservation to that Article at the time of signing, but its reservation did not question 
the validity of Article 3 and was not maintained on ratification. 

144. See text in connection with notes 57-70 supra. 

145. See text in connection with notes 64-68 supra, and 156-163 infra. 

146. N.Y. Times, June 22, 1965, at 6, col. 1. 



1 28 Levie on the Law of War 

147. Id. at 1, col. 7. He had been apprehended in Saigon while attaching a fuse to a bomb which was to 
have exploded five minutes later. 

148. Id. June 25, 1965, at 1, col. 6; id. June 26, 1965, at 1, col. 8 and at 2, col. 7. 

149. 53 Dep't State Bull. 55 (1965). The statement also said that "these Communist threats to intimidate, 
of course, will not succeed." Subsequent events have revealed that this portion of the statement was incorrect! 

150. N.Y. Times, Sept. 28, 1965 at 1, col. 1. 

151. 53 Dep't State Bull. 635 (1965). 

152. ICRC, Vietnam, supra note 85, at 411. Despite the American statement concerning no intimidation, 
supra note 149, no Vietcong terrorist has been executed since September, 1965, and when three Vietcong 
terrorists were convicted and sentenced to be executed on November 17, 1967, they were given a last minute 
reprieve by South Vietnamese Premier Nguyen Can Loc. N.Y. Times, Nov. 17, 1967. 

153. 2 Lauterpacht's Oppenheim, International Law 561 (7th ed. 1952). An example of a legitimate act 
of reprisal is given in United States Army Field Manual 27-10, The Law of Land Warfare 177 (1956), where 
it is stated: "For example the employment by a belligerent of a weapon the use of which is normally precluded 
by the law of war would constitute a lawful reprisal for intentional mistreatment of prisoners of war held by 
the enemy." 

154. N.Y. Times, June 22, 1965, at 6, col. 1; and id., Sept. 28, 1965, at 1, col. 1. It should be borne in 
mind that at no time have the Vietcong or the NLF ever contended that the executed Americans had committed 
any act warranting execution or that their executions were pursuant to the sentence of a court. 

155. N.Y. Times, June 26, 1965, at 2, col. 7. 

156. Morgan, The German War Book 74 (1915). 

157. See, e.g., para. 20 of the Anglo-German Agreement of July 2, 1917 (111 Brit. & For. State Papers 
257, 263); Art. XXI of the Anglo-Turkish Agreement of Dec. 28, 1917 (id. at 557, 566); and para. 42 of the 
Franco-German Agreement of Apr. 26, 1918 (id. at 713, 721). 

158. Supra note 61, Article 2. It is repeated in Article 13 of the 1949 Convention. 

159. Flory, Prisoners of War 44 (1942). 

160. United States v. List et al., 11 Trials 757, 1252-53 (1948). This case is sometimes referred to as The 
Southeast Case. 

161. United States v. von Leeb et al., 11 Trials 528 (1948) (emphasis added). 

162. Notes on The Dreierwalde Case, 1 War Crimes Rep. 86 (1947); Digest of Laws and Cases, 15 War 
Crimes Rep. 99 (1949). In the former the statement is made that "the killing of prisoners of war constituted 
a war crime under the customary International Law even before the promulgation and ratification of the 
Conventions of 1907 [Hague] and 1929 [Geneva]." (Emphasis added). 

163. See text in connection with note 64 supra. 

164. "According to the existing international law, reprisals against an ally of an enemy-state for acts of the 
enemy-state are not permissible as they are not directed against the state responsible for the act. Reprisals, 
therefore, may, according to the existing rules of the laws of war, only be employed against the responsible 
state." Moritz, The Common Application of the Laws of War Within the NATO-Forces, 13 Mil. L. Rev. 1 
(July 1961). To the same general effect, see United States v. List et al. (The Hostage Case), 11 Trials 1270 
(1948). 






VI 

Some Major Inadequacies in the Existing 

Law Relating to the Protection of Individuals 

During Armed Conflict 

When Battle Rages, How Can Law Protect? 7 
14th Hammarskjold Forum, John Carey ed., 1971 



I 



n a book published in 1954 the author said: "By 1907 the proportion of the 
laws of war embodied in general convention(s) far exceeded, and still exceeds 
to this day, that of the law of peace." What he failed to mention was that, apart 
from the 1925 Geneva Protocol concerning gas and bacteriological warfare, 
the conventional law of war relating to the conduct of hostilities dated (and still 
dates) from 1907; and that there was not (and is not) a single piece of 
international legislation dealing specifically with what might well be considered 
a fairly important aspect of modern warfare — war in and from the air! 

Shordy after the end of World War I an anonymous article appeared in the 
prestigious British Yearbook of International Law the thesis of which was that, the 
League of Nations having been established, it would be a "disastrous mistake" 
for the governments of member nations to use this new machinery to codify (or 
expand?) the law of war; and that the past failure of international law to provide 
viable solutions to the problems of peace was, at least in part, due to the 
preoccupation of writers and statesmen with the law of war and their consequent 
neglect of the law of peace. Two arguments were advanced: first, that inasmuch 
as war had been abolished, there was no longer anything for the law of war to 
regulate; and second, that in any event there was no point in wasting time and 
energy on rules of war because such rules would only be broken. These 
arguments did not go unchallenged; but that they prevailed with the majority 
of statesmen and international lawyers of the day is evident from the fact that 
the Third Hague Peace Conference, which had not been convened because of 
the advent of World War I, was never called into session and, despite the 
tremendous technological advances demonstrated during that war, the 
Regulations attached to the Fourth Hague Convention of 1907 continued to 
be the latest expression of States with respect to the conduct of hostilities. 
Thus it was these Regulations, drafted in 1907, prior to the advent of such 
weapons as the tank and the airplane, weapons which had completely 



1 30 Levie on the Law of War 

revolutionized warfare, which constituted the basic rules governing hostilities 
during World War II. 

It could easily be assumed that the events of World War II would have caused 
a less antagonistic attitude towards efforts to modernize the law of war. 
However, such was not the case. In a statement which could have been written 
by our anonymous post-World War I author and his adherents, the International 
Law Commission made the following decision at its 1949 organizational 
meeting: 

"18. The Commission considered whether the laws of war should be selected as 
a topic for codification. It was suggested that, war having been outlawed, the regulation 
of its conduct had ceased to be relevant. On the other hand, the opinion was expressed 
that, although the term 'laws of war' ought to be discarded, a study of the rules 
governing the use of armed force — legitimate or illegitimate — might be useful. . 
. . The majority of the Commission declared itself opposed to the study of the 
problem at the present stage. It was considered that if the Commission, at the very 
beginning of its work, were to undertake this study, public opinion might interpret its action 
as showing lack of confidence in the efficiency of the means at the disposal of the United 
Nations for maintaining peace. " (Emphasis added.) 

As a result of that decision, and despite strong arguments in support of the need 

to modernize the law of war advanced by many of the leading international 

13 • i • 

lawyers, the Commission has, more than twenty years later, never of its own 

volition considered any aspect of the law of war. At the present time, then, we 

are compelled to apply to wars being fought in the eighth decade of the 20th 

century rules governing the conduct of hostilities which were drafted in the first 

decade of that century. Just imagine the chaos if we were using the traffic 

regulations of that earlier horse-and-buggy decade to regulate today's traffic! 

Imagine Broadway and Forty-second Street with no traffic lights, no traffic 

policemen, no stop signs, and a five-mile per hour speed limit! But such are the 

rules under which the world community of nations, by its ostrich-like attitude, 

has permitted and continues to permit wars to be fought. 

Like the anonymous writer after World War I and like the International Law 

Commission after World War II, the United Nations itself has long been 

extremely reluctant to exert any effort toward modernizing the law of war for 

fear that public opinion might interpret such action as lack of confidence in that 

organization's ability to maintain the peace. But more recently there is 

evidence that the General Assembly is becoming increasingly realistic in its 

approach to this problem and that humanitarian considerations are, at long last, 

having an effect. The International Conference on Human Rights, meeting in 

Teheran in May 1968, adopted a resolution which requested the General 

Assembly to invite the Secretary-General to study 



Major Inadequacies 131 

"the need for additional humanitarian international conventions or for possible 
revision of existing Conventions to ensure the better protection of civilians, 
prisoners and combatants in all armed conflicts and the prohibition and limitation 
of the use of certain methods and means of warfare." 

This Resolution, in turn, resulted in the adoption by the General Assembly of 

Resolution 2444 (XXIII); the preparation of the study Respect for Human Rights 

19 
in Armed Conflict by the Secretary-General; and the adoption by the General 

Assembly on December 16, 1969, of Resolution 2597 (XXIV), the pertinent 

operative portions of which read as follows: 

1. Requests the Secretary-General to continue the study initiated by resolution 
2444 (XXIII), giving special attention to the need for protection of the rights 
of civilians and combatants in conflicts which arise from the struggles of peoples 
under colonial and foreign rule for liberation and self-determination and to 
the better application of existing humanitarian international conventions and 
rules to such conflicts; 

2. Requests the Secretary-General to consult and cooperate closely with the 
International Committee of the Red Cross in regard to the studies being 
undertaken by that body on this question; 



5 . Decides to give the highest priority to this question at the twenty-fifth session 
of the General Assembly; 

6. Invites the Secretary-General to present a further report on this subject to the 

20 
General Assembly at its twenty-fifth session. 

As it will have been noted from the foregoing, there is another powerful force 
at work in this area — the International Committee of the Red Cross (ICRC). 

Even during the arid period in the codification of the so-called "Hague" law of 

22 
war after World War I, the ICRC was successful in obtaining the convening 

of a diplomatic conference in Geneva in 1929 which not only redrafted the 1906 

23 
Geneva Convention, but also drafted the first convention dealing exclusively 

24 i 

with the subject of prisoners of war. And in 1949, just shortly after the 

International Law Commission had reached its decision not to include the law 

of war on its agenda, another diplomatic conference was convened at Geneva 

at the instance of the ICRC and, based on many years of preparatory work by 

2S 
the ICRC, it drafted and adopted four humanitarian conventions, including 

the first ever to deal exclusively with the protection of civilians. Moreover, 

when Resolution 2444 (XXIII) was adopted by the General Assembly, its basis 



1 32 Levie on the Law of War 

was a resolution which had been adopted at the XXth International Conference 
of the Red Cross at Vienna in 1 965; and at the XXIst International Conference 

of the Red Cross, held in Istanbul in September 1969, a number of relevant 

28 
resolutions were adopted. Assuredly, with the General Assembly and the 

ICRC acting together in a concerted effort to reach the identical goal, the 

prospect for the revision and modernization of the law of war may now be 

viewed with some minimum degree of optimism. Of course, there is a long 

international road to travel from proposals, to draft convention, to diplomatic 

conference, to signed convention, to ratification by a sufficiently large number 

of States, including the great powers, to make any such revision and 

29 
modernization meaningful; but the very willingness of the General Assembly 

to acknowledge that the problem exists is "a giant step forward for all mankind." 

It is perhaps appropriate to mention at this point a suggestion which has been 

offered in order to make work in this area more palatable to those who have 

heretofore opposed it. This suggestion is that the term "armed conflict" be used 

as a substitute for the word "war" in the context of rules governing hostilities. 

It will be recalled that in the 1949 decision of the International Law Commission 

not to enter this field, those who opposed that decision suggested that the term 

30 
"laws of war" be discarded. The same suggestion is to be found in the ICRC's 

proposals and practice and is stated to be based upon the need "to take account 

31 
of the deep aspiration of the peoples to see peace installed."' And the Report, 

A/7720, makes the same suggestion, but apparently for the perhaps more logical 

reason that "armed conflict" is a considerably more all-inclusive term, and 

32 
therefore less subject to dispute, than is "war." Whatever the motivation, such 

a change appears to be essentially one of semantics, and there does not appear 

to be any substantive objection to it. Moreover, if it will reduce opposition to 

the project for the revision and modernization of the applicable law, it will have 

33 
served a useful and beneficial purpose. Accordingly, the balance of this paper 

will use the terms "armed conflict," "rules of armed conflict," and "law of armed 

conflict," and, except where speaking historically, will pointedly refrain from 

the use of such antiquated terms as "war," "rules of war," and "law of war"! 

Assuming then that the time is approaching when affirmative steps will be 

taken to revise and modernize the law of armed conflict, the question is presented 

as to the specific areas in which such revision and modernization is needed. Any 

attempt to answer that question completely would probably necessitate a listing 

which would cover many pages and explanatory matter which would fill many 

tomes. This paper, as its title indicates, will be limited to several matters 

considered to be the major inadequacies relating to the protection of individuals 

during armed conflict which presently exist and require correction. They are: 



Major Inadequacies 133 

1. The non-existence of and the need for a method for the automatic 
determination that a particular inter-State relationship requires the application 
of the law of armed conflict; 

2. The non-existence of and the need for a method which will ensure the 
presence in the territory of each party to an armed conflict of a Protecting 
Power or an international body with adequate authority to police compliance 
with the law of armed conflict; 

3. The non-existence of and the need for a complete and total prohibition of the 
use in armed conflict of any and all categories of chemical and biological agents; 
and 

4. The non-existence of and the need for a complete code governing the use of 
air power in armed conflict with emphasis on the outright prohibition of any 
type of bombing which has as its basic target the civilian population. 

In the discussion of each of these inadequacies in the present law governing 
armed conflict, an effort will be made to show the nature of the particular 
inadequacy and why it exists and to suggest possible remedies, with the caveat 
that the suggested remedies are not intended to exclude other, possibly more 
practical and practicable, solutions. In view of the very nature of the inadequacies 
discussed, there would appear to be little need to advance arguments as to why 
each is deemed of sufficient import to be considered a major inadequacy 
requiring a remedy. 

1. The non-existence of and the need for a method for the automatic determination 
that a particular inter-State relationship requires the application of the law of armed conflict. 

One of the major inadequacies of the present law of armed conflict is that 
there is in existence no method for the automatic issuance of an authoritative 
and effective determination that the relationship between two or more States 
has reached a point where that law should be applied. 

Under Article 1 of the Third Hague Convention of 1907 hostilities were 
instituted by a "reasoned declaration of war or ... an ultimatum with conditional 

declaration of war"; and under Article 2 of that Convention the belligerents had 

35 
the duty to notify neutrals of the existence of a state of war. Of course, were 

these provisions uniformly complied with by States, the problem under 

discussion would not exist. Unfortunately, more often than not they have been 

honored in the breach. In 1914, just seven years after they had become a part 

of international legislation, Germany attacked Belgium without a declaration of 

war and started a policy which has been followed all too frequendy since then. 



1 34 Levie on the Law of War 

Moreover, a number of nations have denied the applicability of the law of war 
by the use of subterfuge or perversion of the facts. Thus, the Sino-Japanese 
conflict of the late 1930s was designated by Japan as a "police action" which, it 
was claimed, did not bring the law of war into effect; and in numerous other 
cases the applicability of the provisions of the 1907 Hague and of the 1929 
Geneva Conventions was rejected on the mere basis of a denial of the existence 
of a state of war — despite clear and undeniable evidence to the contrary. 
Concerning this situation the ICRC later said: 

"... Since 1907 experience has shown that many armed conflicts, displaying all 
the characteristics of a war, may arise without being preceded by any of the 
formalities laid down in the Hague Convention. Furthermore, there have been 
many cases where Parties to a conflict have contested the legitimacy of the enemy 
Government and therefore refused to recognize the existence of a state of war. In 
the same way, the temporary disappearance of sovereign States as a result of 
annexation or capitulation has been put forward as a pretext for not observing one 
or other of the humanitarian Conventions. It was necessary to find a remedy to 
this state of affairs ..." 

As the problem had thus long been recognized, in preparing the so-called 
Stockholm draft conventions (the working papers for the 1949 Diplomatic 
Conference which drafted the four 1949 Geneva Conventions) the ICRC 
attempted to solve it by proposing the employment of a phrase making each 
Convention applicable "to all cases of declared war or any other armed conflict 
which may arise between two or more of the High Contracting Parties, even if 
the state of war is not recognized by one of them." This proposal was adopted 
by the Diplomatic Conference without change and without debate. 

A great feeling of accomplishment was engendered by the acceptance of this 
supposedly all-inclusive phrase by the Diplomatic Conference. The same ICRC 
study quoted above said of it: 

"By its general character, this paragraph deprives belligerents, in advance, of the 
pretexts they might in theory put forward for evading their obligations. There is 
no need for a formal declaration of war, or for the recognition of a state of war, 
as preliminaries to the application of the Convention . . . The occurrence of de 
facto hostilities is sufficient . . . Any difference arising between two States and 
leading to the intervention of members of the armed forces is an armed conflict 

within the meaning of Article 2, even if one of the Parties denies the existence of 

. . f " 39 

a state ot war. . . . 

Unfortunately, it has not uniformly worked out this way in practice. Thus, 
for example, in Vietnam, where thousands of planes have been shot down, tens 
of thousands of human beings have been killed, and millions of rounds of 






Major Inadequacies 135 

ammunition have been expended, the position has been taken by North Vietnam 
that the humanitarian conventions governing armed conflict, to which she long 
ago acceded, do not apply. 

Thus, after World War II it was considered necessary to evolve a method 
which would make it impossible for States to engage in armed conflict and 
attempt to justify non-compliance with the then law of war by denying the 
existence of a state of war through some subterfuge such as labelling it a "police 
action," alleging the lack of a declaration of war, etc. Now, once again, it is 
necessary to seek a method which will make it impossible for States to engage 
in armed conflict and attempt to justify non-compliance with the present (or 
future) law of armed conflict by advancing the same or new subterfuges, such 
as labelling the armed conflict as "legitimate self-defense," or as "assistance to 
an ally in an internal conflict," or as "assistance to peoples engaged in a national 
liberation movement aimed at throwing off the yoke of imperialism," etc. 
And contriving new phrases of limitation will probably be no more successful 
in solving the problem than they have in the past as they would merely serve as 
a basis for future evasions of a different type. 

It is suggested that a true and effective solution could be attained by assigning 
the power to make a determination as to the existence of a state of armed conflict 
to a pre-selected international body; by making the decision reached by that 
body as to the existence of a state of armed conflict binding on the States direcdy 
involved, as well as on all other Parties to the Convention; and by providing for 
the automatic imposition of total sanctions whenever this body determines that 
its decision is not being respected by a State party to the armed conflict in that 
such State has, despite such decision, continued to deny the applicability of the 
law of armed conflict, or any part of it, or is, in fact, violating such law. 

At the 1949 Diplomatic Conference two proposals were made which can be 
related to this problem. The Greek representative suggested that the existence 
of a state of belligerency should be decided by the Security Council of the United 
Nations. He later amplified this proposal by explaining that he had meant that 

such recognition of belligerency should be given by a majority of the countries 

43 
represented on the Security Council. A French proposal, which was actually 

concerned with the problem of a substitute for the Protecting Power, would 

have established on a permanent basis, immediately upon the Conventions 

becoming effective, a "High International Committee for the Protection of 

Humanity," consisting of thirty members elected by the Parties to the 

Convention from nominations made by the Parties, by the Hague "International 

[Permanent] Court of Arbitration," and by the "International Red Cross 

Standing Committee." Nominations were to be made from 



1 36 Levle on the Law of War 

"amongst persons of high standing, without distinction of nationality, known for 
their moral authority, their spiritual and intellectual independence and the services 
they have rendered to humanity — " 

"In particular, they may be selected from amongst persons distinguished in the 
political, religious, scientific and legal domains, and amongst winners of the Nobel 
Peace Prize — " 

While this proposal was not incorporated into the Conventions, it was the 
subject of a resolution adopted by the Diplomatic Conference which 
recommended that consideration be given as soon as possible to the advisability 
of setting up an international body to perform the functions of a Protecting 
Power in the absence of such a Power. 

These two proposals are mentioned here because they suggest alternative 
methods of attempting to solve our problem: one by the use of an established 
political body; the other by the use of a new body created specifically for the 
purpose and which is made as neutral and apolitical as it is possible to do in these 
days of hypernationalism. 

The suggested use of the Security Council (or, indeed, of any political body) 
is not considered to be a feasible solution. That body is composed of the 
representatives of States, voting on the basis of decisions reached in Foreign 
Offices, decisions which are made on the basis of self-interest and political 
expediency, and which are not necessarily consonant with the facts. It is 
inconceivable, for example, that the Security Council would ever reach a 
decision, over the opposition of North Vietnam (and, more important, of the 
Soviet Union), that the situation in Vietnam demands the application of the 
humanitarian conventions which govern the law of armed conflict. 

On the other hand, a specially constituted body of perhaps twenty-five 
individuals, each of whom is of sufficient personal international stature to be 
above politics and would act as an individual and as his or her moral and ethical 
principles dictated, detached and unaffected by instructions, could well 
constitute an acceptable and effective international body. The provisions for the 
selection of the members of this body (the "International Commission for the 
Enforcement of Humanitarian Rights during Armed Conflict" — ICEHFJ\.C) 
would be sufficiendy restrictive to ensure the choice of the type of individual 
described, without regard to nationality, race, religion, color, or geographical 
distribution. The ICEHP<AC would be selected as soon as the constitutive 
convention had become effective and would be a permanent body, perhaps 
self-perpetuating. Any Party to the convention, whether or not itself involved, 
could, at any time, request a determination by ICEHFLAC as to whether the 
relationship between two or more States was such as to call into effect the 
application of the law of armed conflict; the States involved would be invited 



Major Inadequacies 137 

to present any facts or arguments they desired but would not otherwise 
participate in the decision-making process; an affirmative decision would 
immediately be binding not only upon the States involved, but on all of the 
other Parties to the Convention; and a subsequent finding by ICEHRAC that 
its decision was not being complied with would automatically, and without 
further action of any kind, require the application of complete economic and 

communications sanctions against the violating State by all of the other Parties 

49 
to the Convention. 

To many this proposal will undoubtedly appear Utopian, idealistic, and 

impractical. However, upon reflection this reaction may appear somewhat less 

valid. There are today more than one hundred States which are not presendy 

involved in the type of armed conflict under discussion. Each and every one of 

them considers that should it become involved in such activities in the future, 

it would be on the side of the angels — so the provisions of any such convention 

would naturally apply in its favor and against the opponent. Moreover, to what 

will it have agreed? Merely that a neutral, internationally-created body, which 

it helped create, may determine that a situation in which that State unexpectedly 

finds itself calls for the application of the humanitarian law of armed conflict. 

What would that mean to it? Only that it could not kill, or otherwise maltreat, 

protected persons such as the sick and wounded, prisoners of war, and civilian 

noncombatants, and that it could not have recourse to certain prohibited 

methods of conducting hostilities. Can any State advance the argument that it 

refuses to ratify such a convention because it does not wish its sovereign power 

of action limited in these respects, it wishes to retain the unfettered ability to 

kill and maltreat these people at will and that it wishes, for example, to retain 

50 
the possibility of using weapons which have been banned? Moreover, once 

such a convention is drafted and presented for signature and ratification, the 

moral and humanitarian pressure to bring about ratifications would be 

tremendous and there would be an excellent possibility of its general 

acceptance. While certain States which have adopted obsolete attitudes 

magnifying national sovereignty might well oppose such a proposal from 

beginning to end, it is predictable that they would participate, albeit reluctantly, 

in the diplomatic conference which was convened to draft such a convention 

and would eventually, rather than risk international opprobrium, become Parties 

to it. 

This, then, is the suggested remedy to the problem of establishing a method 

for the automatic determination that an existing situation necessitates the 

application of the law of armed conflict. While it would, it is true, entail a 

somewhat broader delegation of authority than States have heretofore been 

willing to make, it is believed that the time is past when States may argue 

"national sovereignty" as an excuse for refusing to participate in the creation of 



1 38 Levie on the Law of War 

an international institution the sole function of which will be to limit the illegal 
and nonhumanitarian conduct of hostilities in armed conflict. 

2. The non-existence of and the need for a method which will ensure the presence in 
the territory of each State party to an armed conflict of a Protecting Power or an international 
body with adequate authority to police compliance with that law. 

Another major inadequacy in the old law of war and in the present law of 
armed conflict is that there has never been an "umpire" with sufficient authority 
to oversee the application of the law, to investigate alleged or possible violations, 
to determine the facts with respect thereto, and to take the necessary action to 
ensure the correction of the default. 

For many centuries there has existed in customary international law an 
institution known as the Protecting Power. By the time of the Spanish- American 

War (1898), the traditional functions of that Protecting Power had come to 

53 
include some aspects of the protection of prisoners of war. During World War 

I a number of formal agreements were entered into confirming the existence of 

the Protecting Power and its activities with respect to prisoners of war, which 

54 
had until then rested entirely on custom, and specifying a number of functions. 

Subsequendy, in Article 86 of the 1929 Geneva Prisoner-of-War Convention 

this institution received formal recognition in a general multilateral treaty 

concerned with ensuring humanitarian treatment for one class of victims of war. 

The four 1949 Geneva Conventions reaffirm the Protecting Power as an 

international humanitarian institution. There is now, therefore, binding 

international legislation establishing the Protecting Power as an international 

institution during time of armed conflict and specifying a number of its duties 

and powers with respect to the protection of wounded and sick, prisoners of 

war, and civilian noncombatants. Unfortunately, the provision concerning the 

original designation of Protecting Powers by belligerents is less than clear, 

apparently relying on customary international law in this respect, although a 

great deal of time, effort, and controversy were expended at the 1949 Diplomatic 

Conference with respect to the designation of replacements and substitutes for 

57 
an original Protecting Power. In any event, although there have probably been 

close to one hundred armed conflicts of various sorts and sizes since the end of 

World War II, the institution of the Protecting Power has not once during that 

58 
period been called into being. While the Report advances a number of possible 

59 
reasons for this failure, ' it is believed that many of them are completely 

irrelevant and that, for the most part, the failure to secure the designation of 

such a Power has resulted from the fact that the States involved did not wish to 

have on their territory a neutral presence concerned with the problem of the 



Major Inadequacies 139 

extent to which there was compliance with the provisions of the specifically 
humanitarian conventions governing the law of armed conflict. 

The failure of the Protecting Power as an institution and the need for some 
effective system of supervision appears to be very 7 generally admitted. Thus in 
answer to the Secretary General's inquiry concerning the preparation of his 
Report, India stated that it believed that the solution to the problem "would 
perhaps be found more through the complete implementation of the existing 
conventions than through the search for new legal instruments." And the 
response of the United States acknowledged "a strongly held conviction that 
steps are urgendy needed to secure better application of existing humanitarian 
international conventions to armed conflicts." Similarly, the Report states that 

"there would be pressing need for measures to improve and strengthen the present 
system of international supervision and assistance to parties to armed conflicts in 
their observance of humanitarian norms of international law. ..." 

And another organization concerned with preserving humanitarian rights 
said, with respect to the Protecting Power: 

"Certainly it is time that this valuable international custom was revived in the 
modem context of armed conflicts. An initiative of this kind by the United Nations 
would set a precedent as a means of lessening the brutality of conflicts, and would 
accord with the aim expressed in the Charter. ..." 

And, finally, Resolution XI of the XXIst International Conference of the Red 
Cross "calls upon all parties to allow the Protecting Power or the International 
Committee of the Red Cross free access to prisoners of war and to all places of 
their detention." Further, it should be borne in mind that nowhere in either 
customary 7 or conventional international law is there any rule which would 
authorize the Protecting Power, even if it were designated and functioning, to 
supervise the compliance of a belligerent with that area of the law of armed 
conflict governing the conduct of hostilities. 

Although, as has been stated, no Protecting Power has been designated in 
any armed conflict which has occurred since World War II, on a number of 
occasions the ICRC has been permitted to perform its humanitarian functions. 
Perhaps because of this, the Report calls it the most effective private organization 
concerned with respect for human rights in armed conflict, ascribes this to "its 
history, past experience, and its established and well deserved reputation of 
impartiality," and recommends its strengthening. But not even the ICRC has 
been uniformly successful in having its services accepted. Thus, while it was 
permitted to perform humanitarian functions in the prisoner-of-war camps 
maintained in South Korea during the period of hostilities in that country 



1 40 Levie on the Law of War 

(1950-53), it was never permitted in North Korea where, as a result, there was 

69 
no "guardian" of the Conventions; similarly, while it has functioned in South 

Vietnam over a considerable period of time, it has never been permitted in North 

70 
Vietnam; and its trials and tribulations in Biafra and Nigeria are too recent to 

require elaboration. 

There is, then, a double need in this area: (1) a need to devise a method which 

will ensure the existence of a "third" presence, either a Protecting Power or 

some substitute therefor, on the territory of each State party to an armed conflict; 

and (2) a need to grant to that Protecting Power, or the substitute therefor, 

adequate authority to ensure compliance with all of the law of armed conflict, 

... 72 
including that relating to the conduct of hostilities. The provisions of the 1949 

Geneva Conventions for the designation of Protecting Powers have not been 

73 
at all effective and those relating to substitutes for Protecting Powers have 

been only partially successful. It is apparent, then, that the only real solution 

would be, once again, to have a provision in a convention which would, in 

appropriate cases, automatically trigger action by ICEHFA.C. Thus the 

convention creating that institution could provide that, when the existence of 

a state of armed conflict is acknowledged by the States involved, or when a 

decision to that effect has been reached by ICEHRAC in accordance with the 

other provisions of the convention, and no Protecting Powers have been 

75 

designated in accordance with customary international law within one week 

thereafter, ICEHP^AC would automatically begin to function in the capacity of 
a substitute for the Protecting Power, with all the rights and duties which have 
been, or which may be, granted to such Powers. And such rights and duties 
should include the supervision of the application of all of the law of armed 
conflict and should not be restricted to the protections afforded under the 1949 
Geneva Conventions. After all, a human being, combatant or noncombatant, 
suffers just as much, or is just as dead, be his improper treatment due to a violation 
of those conventions or to the use of dum-dum bullets (in violation of the 1899 

Hague Declaration), or the use of poison (in violation of the 1907 Hague 

77 
Regulations), or the use of gas (in violation of the 1925 Geneva Protocol), etc. 

In many respects the foregoing proposal parallels suggestions contained in the 

7R 

Report. Nor is it believed that the U.S.S.R. and the other Communist 
countries would necessarily oppose such a solution merely because they made 
reservations to Article 10/10/10/11, and because the Soviet Union made a 

statement indicating that it did not consider Resolution 2 of the 1 949 Diplomatic 

80 
Conference necessary. Events subsequent to 1949 have demonstrated the need 

for an institution capable of performing the functions of the Protecting Power 

and competent to take such functions upon itself immediately when the need 

Ml 

therefor becomes apparent. It is believed that only in this fashion will the world 
community of nations provide a satisfactory and effective method of ensuring 



Major Inadequacies 141 

in every case of armed conflict the presence of an impartial agency with the 
function of making certain that the law of armed conflict is fully and properly 
applied. 

3. The non-existence of and the need for a complete and total prohibition of the use 
in armed conflict of any and all categories of chemical and biological agents. 

A third major inadequacy in the existing law relating to the protection of 
individuals during armed conflict is the lack of a comprehensive and generally 
accepted ban on the use as weapons of all types and categories of both chemical 
and biological agents. 

While there is probably no real equal to the disaster that would descend upon 
this earth should an all-out nuclear war occur, potentially the use of other 

uncontrollable methods of mass destruction could be almost equally disastrous 

83 . 84 

for mankind. Dozens of chemical agents, and numerous biological agents, 

all with varying degrees of lethality, that have been determined to be the most 

"useful" are now included in the arsenals of a number of nations for possible use 

85 
in the event of armed conflict. Hundreds of books and articles have been 

ozr 07 

written and millions of words have been spoken on the subject. For the 
most part they have been concerned with the questions of whether there is today 
any customary rule of international law which prohibits the use of chemical 
agents in armed conflict and whether biological agents fall within the 
well-established prohibitions against the use of "poisons" and against the use of 
weapons which cause "unnecessary suffering"; but also, in more recent days, 
with the inhumanity of these weapons and the highlighting of the moral and 
ethical basis for the universal acceptance by nations of a strict and all-inclusive 

ban on the use in armed conflict of any and all types of both chemical and 

88 
biological agents. 

A very brief history of the attempts to ban the use of chemical (and 

bacteriological) agents as weapons will probably serve to clarify the current 

problem as well as the suggestion for solving it. Chemical warfare of differing 

varieties has existed for centuries. Although the 1868 Declaration of St. 

90 . 

Petersburg actually dealt with explosive bullets, it is often cited as the beginning 

of the attempt to ban the use of chemical agents in armed conflict because of a 

preambular clause which deplored "the employment of arms which uselessly 

aggravate the suffering of disabled men, or render their death inevitable." 

Chemical agents, it is contended, fall within this classification. 

The 1899 Hague Peace Conference adopted a number of provisions which 

are said to have indirectly, or which did direcdy, ban the use of chemical agents. 

Thus the Regulations attached to the Second Hague Convention drafted by 

that Conference stated that the right of belligerents to adopt means of injuring 



1 42 Levle on the Law of War 

the enemy was not unlimited (Art. 22) and they especially prohibited the 
employment of poison or poisoned weapons (Art. 23a) and of arms, projectiles, 
or material of a nature to cause unnecessary suffering (Art. 23e). In addition, a 
Declaration concerning the Prohibition of Using Projectiles the Sole Object of 
which is the Diffusion of Asphyxiating or Deleterious Gases was drafted. While 
this Declaration was not repeated at the 1907 Hague Peace Conference, the 
provisions of the Regulations attached to the Fourth Hague Convention of 
1907 were identical with those cited from its 1899 predecessor. 

World War I saw the use of gas introduced by Germany, followed thereafter 
by its use by the Allies. The Treaty of Versailles contained an article which stated 
that the "use of asphyxiating, poisonous or other gases and all analogous liquids, 
materials or devices being prohibited, their manufacture and importation are 
strictly forbidden in Germany." Nevertheless, it would be an exaggeration to 
say that when the Treaty of Versailles was signed in 1919 there was in existence 
any generally accepted rule of international law prohibiting the use of chemical 
agents in armed conflict. In 1922 the five great maritime nations of that time 
(France, Italy, Japan, the United Kingdom, and the United States) drafted and 
signed the Treaty of Washington relating to the use of submarines and noxious 
gases which contained a provision that, the use of "asphyxiating, poisonous or 
other gases, and all analogous liquids, materials or devices, having been justly 
condemned by the general opinion of the civilized world and a prohibition of 

such use having been declared in treaties to which a majority of the civilized 

. . 95 

Powers are parties," the signatories "declare their assent to such prohibition." 

While this treaty never became effective (France failed to ratify it because of the 

provisions relating to submarines), it constituted an important landmark in the 

law of armed conflict. And three years later, at the Conference which met in 

Geneva to establish controls on international trade in munitions, a Protocol 

was drafted which contained wording lifted bodily from the Treaty of 

Washington and, in addition, contained an agreement "to extend this 

prohibition to the use of bacteriological methods of warfare." As of October 

30, 1969, there were 68 States parties to this 1925 Geneva Protocol. The great 

majority, however, have ratified it with reservations which make it applicable 

only as regards other States which are also Parties to it; and which make it 

inapplicable in the event it is violated by the enemy. 

Gas was subsequently used by Italy against Ethiopia in the 1935-36 war. 

Italy admitted this use in the League of Nations and unsuccessfully attempted to 

justify it as a reprisal for other alleged violations of international law by Ethiopia. 

Japan used gas against China in their hostilities of the late 1930s; and the Soviet 

Union contended that Japan used bacteriological agents against China in the 

1930s. This was never established by acceptable evidence and, so far as appears, 

there was no use in armed conflict of either chemical or bacteriological weapons 



Major Inadequacies 143 

by any belligerent during World War II. During the Korean hostilities the 
Soviet Union, Communist China, and North Korea all contended that the 

United States forces in the United Nations Command had used bacteriological 

102 
weapons. The United States denied this and demanded an investigation 

which was refused. It is interesting to note that in an official book published in 

Moscow in 1967 no mention is made of these allegations, although the charge 

against the Japanese is reiterated and the use of defoliants in Vietnam is strongly 

criticized. The charge was also made, and apparently verified by the ICRC, 

104 
that Egypt used a chemical agent against the Royalists in the Yemen. Egypt 

denied the charge and invited an investigation. As in the case of the similar 

demand made by the United States in Korea, no such investigation ever took 

place. 

The ICRC Draft Rules contain a blunt and broad prohibition against the use 

105 
of "incendiary, chemical, bacteriological, radioactive or other agents"; on a 

number of occasions the General Assembly has adopted resolutions calling for 

strict observance of the "principles and objectives" of the 1925 Geneva Protocol 

and inviting non-Parties to accede to it; and on at least one occasion it has 

declared the use of chemical and biological agents of warfare "as contrary to the 

107 
generally recognized rules of international law, as embodied in the Protocol." 

Some writers also urge that the use of these weapons is prohibited by customary 

108 
international law. It appears however that, particularly in the fight of recent 

developments, this is a sterile approach to the problem. 

When the 1925 Geneva Protocol was sent to the United States Senate for its 

advice and consent to ratification, this was refused; and accordingly, the United 

109 
States is not presendy a Party to the Protocol. As a result, the United States 

has long taken the position that, while it will not be the first user of the weapons 

prohibited by that international agreement, it "is not a party to any treaty, now 

in force, that prohibits or restricts the use in warfare of toxic or nontoxic gases, 

of smoke or incendiary materials, or of bacteriological warfare." Although 

the United States has not used any toxic chemical, or any bacteriological agent, 

since the Protocol became effective as between the Parties to it, the fact that it 

refused to ratify the Protocol has not only caused it to have problems in the 

111 
diplomatic field, but has also undoubtedly deterred a number of other States 

from becoming Parties to it. 

On November 25, 1969, President Nixon made an announcement of major 

112 
importance concerning this subject. This announcement included: 

1 . A reaffirmation of the renunciation by the United States of the first use of 
lethal chemical weapons; 

2. An extension of this renunciation to the first use of incapacitating chemicals; 



1 44 Levie on the Law of War 

3. An intention to resubmit the 1925 Geneva Protocol to the Senate for its advice 
and consent to ratification; 

4. Renunciation by the United States of the use of lethal biological agents and 
weapons; 

5. Confining biological research to defense measures; 

6. Disposing of all stocks of bacteriological weapons; and 

7. Associating the United States with the principles and objectives of the United 

1 13 
Kingdom Draft Convention on biological weapons. 

It is assumed that this action by the United States, its prospective ratification of 
the 1925 Geneva Protocol, and its expressed willingness to become a party to a 
convention banning biologicals will lead the way to the goal which the United 

Nations General Assembly has long sought to reach — universal acceptance of 

114 
prohibitions on chemical and biological agents and weapons. Unfortunately, 

it appears that there is still one major problem which requires solution — the 

status of the use of certain types of chemical agents. For while diplomats, 

scientists, and international lawyers are, for the most part, in general agreement 

that lethal gases and all biologicals either are, or should be, prohibited by the 

law of armed conflict, there is no such concordance with respect to: the so-called 

non-lethal gases, such as tear gas (CS); incendiaries, such as napalm; and 

defoliants. Moreover, the use of all of these weapons by the United States in 

Vietnam has considerably exacerbated this problem. 

The difference of opinion with respect to both the legal and the moral aspects 

of the problem of the use of non-lethal or incapacitating chemicals such as tear 

gas (lachrymatories) is evidenced by the division among the group of experts 

convened by the ICRC: 

"... Some [experts] . . . wondered whether the employment against the enemy 
of chemical agents involving no serious danger for health might not in the final 
issue be of a more humanitarian character than many other means of warfare. The 
employment of means such as police gases (lachrymatory and others) is admitted 
on the national level: why could they not a fortiori be admitted against the 
enemy?" 

"Other experts, on the contrary, considered that the prohibition in the 1925 
Geneva Protocol should be taken as covering all gases, including those not direcdy 



poisonous, in virtue of the deliberately broad terms of this prohibition in the 
Protocol . . ." 






Major Inadequacies 145 

In 1930 the United Kingdom took the position that the use of smoke did not 
violate the Protocol but that the use of tear gas did; but recendy a spokesman 
for that country stated that today's tear gas is less harmful to man than was the 
1930 smoke; that it is used widely for domestic purposes for riot control; and 
that its use is not prohibited by any international convention. 

Apart from the fact that even a non-lethal, incapacitating gas will occasionally 
cause a fatality, there are two major objections voiced against their use in armed 
conflict: first, that as a practical matter the legality of their use becomes extremely 

debatable when its purpose is "to enhance the effectiveness of conventional 

117 
weapons," "to force persons from protective covering to face attack by 

1 1 o 

fragmentation bombs "; and second, and more important, that the use of any 
chemical, albeit non-lethal, results inevitably in escalation: "except perhaps 

when they are first used, non-lethal chemical weapons are unlikely to have much 

119 
effect except to set the stage for more deadly CBW operations." 

The second chemical weapon in the controversial area is napalm — an 

120 
extremely effective weapon and hence one which is much feared, and much 

121 
denounced. Once again there is no general agreement as to whether this 

chemical weapon is prohibited by the Protocol. And because the answer to 

this question is even more difficult to ascertain than is that with respect to 

lachrymatories, the position has been taken that it may be used, but only in a 

123 
discriminating manner. The suggestion is made in A/7720 that in measures 

of control and disarmament incendiary weapons such as napalm should be 

considered separately from chemical and biological weapons and that a new 

124 
convention is needed to clarify the situation; a suggestion which is probably 

an admission that this is presently a gray area of the law. 

Prior to Vietnam defoliants had never been used in warfare. As a result, there 

is no real experience upon which scientists can base their opinions as to the 

125 
ecological effects of their use. Here, as in the case of napalm, the suggestion 

has been made that the legality of their use depends upon the purpose or target: 

while it might be permissible to use them on a forest area used by combat troops, 

it would not be permissible to use them on farm lands raising crops to feed the 

civilian population. Apart from the fact that it would frequently be all but 

impossible to make the correct determinations, if the use of defoliants does 

change the ecology, then it would appear that the purpose or target should not 

be the determining factor in reaching a decision on their use. 

Because the use of non-lethal, or incapacitating, chemical agents will 

inevitably lead to the use of other, more lethal, chemical agents; because napalm 

can cause both asphyxiation and unnecessary suffering; because defoliants may 

well change the entire ecology of an area and could lead to the starvartion of 

the civilian population; because of these and many other reasons, it is believed 

that to be successful any prohibition on the use of chemical weapons in armed 



1 46 Levie on the Law of War 

conflict must comprise all types of chemical agents, including those just 
mentioned. It is on this basis that it is urged that there is a vital humanitarian 
need for a universally accepted understanding that the prohibition of the use in 

armed conflict of chemical agents includes any and all categories of such agents, 

127 
not excluding incapacitating gases, incendiaries, and defoliants. 

There is comparatively little dispute on the need for a far-reaching prohibition 

on the use of biologicals in armed conflict. As has been noted, there is general 

agreement that, like a nuclear war, a biological war would constitute a disaster 

128 
to all mankind, belligerent and neutral, combatant and noncombatant. One 

grave problem in this area is that even a small, comparatively undeveloped nation 

could conceivably mass the necessary resources to enter this field — and there is 

considerable dispute as to whether an inspection system, even if adopted, could 

function effectively. The United Kingdom Draft Convention on the subject 

of biological weapons does not provide for inspections except in the context of 

130 
a specific complaint. " But, while every effort should most certainly be made 

to devise means of ensuring against the illegal production and storage of 

biological agents of military relevance by any nation, large or small, industrial 

or undeveloped, this should not be permitted to unduly delay agreement on a 

treaty completely outlawing the use in armed conflict of any and all biological 

agents. 

4. The non-existence of and the need for a complete code governing the use of air power 
in armed conflict with emphasis on the outright prohibition of any type of bombing which 
has as its basic target the civilian population. 

The airplane was first successfully flown in 1903, just shordy prior to the 
Second Hague Conference of 1907; it developed into a military weapon of 
sizable proportions during World War I; during the between-wars period it 
became obvious that it was a major military weapon; during and since World 
War II technological advances in this field have been such that its importance 
in the military arsenal is now unequalled (except for the nuclear ballistic missile); 
and yet its use in armed conflict remains essentially unregulated! 

In 1917, while the airplane was still in swaddling clothes, exponents of the 
use of air power had already evolved the theory that 

"the day may not be far off when aerial operations with their devastation of enemy 

lands and destruction of industrial and populous centres on a vast scale may become 

131 
the principal operations of war." 

While strategic bombing was probably not the "principal operation" of World 
War II, it certainly played a most important role in that war and will do so again 



Major Inadequacies 147 

in any future non-nuclear armed conflict — and perhaps even in one involving 
the use of nuclear weapons. 

As in the case of the discussion of chemical and biological weapons, while it 
is unproductive to argue about whether or not the strategic bombing of World 
War II violated international law, a brief survey of what has transpired in the 
past will prove helpful in approaching the problem from the point of view of 
the future. When the Second Hague Peace Conference met in 1907 the balloon 
was more than a century old and had already been used for military purposes, 
while the airplane had been successfully flown for the first time only four years 
before. The Conference adopted a Declaration prohibiting bombing "from 
balloons or by other new methods of a similar nature" and Conventions 

which included restrictions on land bombardment and naval bombardment. 

135 
Article 25 of the Regulations on the Laws and Customs of War provided: 

"The attack or bombardment by whatever means, of towns, villages, dwellings, or 
buildings which are undefended is prohibited." (Emphasis added.) 

The records of the Conference indicate that the words "by whatever means" 

1 36 

were included in the article in order to cover air bombardment. And Article 

137 
2 of the Convention on Naval Bombardment excluded from the prohibition 

against the bombing of undefended places "military works, military or naval 

establishments, depots of arms or war materiel, workshops or plants which could 

be utilized for the needs of the hostile fleet or army." The argument has been 

advanced, not without justification, that this provision provides a basis for the 

air bombardment in the "hinterland" of objectives such as those enumerated. 

This was the extent of the efforts which had been made to control the use of 

air power when World War I began; and during its course the airplane became 

a full-fledged weapon. However, apart from a few incidents its use was restricted 

to the battlefield and, usually, to air-to-air duels. In view of the technological 

progress made and foreseen, it is indeed strange that although a number of efforts 

were made in the between-wars period to obtain an international agreement on 

139 
such matters as air bombardment none was successful. The most authoritative 

140 
of these failures was the drafting of the 1923 Hague Rules of Air Warfare. 

Two articles of those Rules are particularly relevant: Article 22, which would 

have prohibited aerial bombardment which was "for the purpose of terrorizing 

the civilian population ... or of injuring noncombatants"; and Article 24, which 

would have limited it to specified military objectives in the vicinity of the zone 

of land operations and then only if it would result in a distinct military advantage 

and if it could be accomplished without "indiscriminate" bombing of the civilian 

population. These two articles were intended: (1) to preserve the traditional 

distinction between combatant and noncombatant; and (2) to limit the allowable 



1 48 Levle on the Law of War 

military objectives to those in the area of the combat zone — the so-called 
"occupation bombardment" because it is normally preliminary to physical 
occupation. 

In a discussion of air bombardment in the House of Commons on June 21, 
1938, Prime Minister Chamberlain made the following statement: 

"I think we may say that there are, at any rate, three rules of international law or 
three principles of international law which are as applicable to warfare from the 
air as they are to war at sea or on land. In the first place, it is against international 
law to bomb civilians as such and to make deliberate attacks upon civilian 
populations. That is undoubtedly a violation of international law. In the second 
place, targets which are aimed at from the air must be legitimate military objectives 
and must be capable of identification. In the third place, reasonable care must be 
taken in attacking these military objectives so that by carelessness a civilian 
population in the neighborhood is not bombed." 

When World War II erupted in September 1939, President Roosevelt 
immediately sent the belligerents a plea against the bombing of civilian 
populations. The British, French, and Germans all replied that their planes were 
instructed to attack military objectives only. In March 1940 the ICRC made 
an appeal to the belligerents "to confirm general immunity for peaceful 
populations, to define their military objectives, and to refrain from indiscriminate 
bombardments and reprisals." Once again the belligerents responded 
affirmatively — but continued to act as they felt necessary. The estimate has 
been made that while World War I caused 10 million deaths, of which 500,000 
were civilians, World War II caused 50 million, of which 24 million were 
civilians; and that half of the civilian deaths (12 million) were caused by air 

144 • /- 

raids! It is worthy of note, too, that such air attacks were not specifically 
included in the definition of war crimes in the Charter of the International 
Military Tribunal and that there were no post-war trials based on a charge of 
indiscriminate bombardment of the civilian population. Nevertheless, 
Spaight takes the position that "nothing that has happened in the second world 

1 46 
war has shaken the legal objection to indiscriminate bombing." 

It is apparent from the foregoing that the attempt to control aerial 

bombardment juridically has been based on analogy to two classical principles 

of land and sea warfare: (1) the distinction between combatant and 

147 
noncombatant; and (2) the restricting of lawful targets to military objectives. 

Much of the humanitarian law regulating armed conflict which has been 

accepted during the past century has been based upon the distinction between 

combatant and noncombatant. The airman who has crashed and been 

hospitalized, the sailor who has been rescued from the sea by the enemy after 

his ship has been sunk, the soldier who has been captured on the field of 



Major Inadequacies 149 

battle — all of these have been removed from combatant status and are therefore 
entided to the humanitarian protection afforded by international law. But they 
are but a comparatively small percentage of the overall group of noncombatants, 
the vast majority of whom are simply civilians, persons who are not a part of 
the armed forces of a belligerent. It is with these latter that we are presendy 

concerned. The distinction between combatant and civilian has been termed, 

148 
and properly so, "the fundamental principle of the law of war." But air warfare 

in general, and strategic bombing in particular, has tended to blur that 

distinction and its validity has been questioned. 

Let us take three examples. First, a city of 500,000 population located in the 
"hinterland" (deep inside the country and far from the scene of actual land 
combat) has no factories making any product in support of the country's war 
effort. Is the city a proper target for air bombardment? Second, suppose that this 
same city has in its midst a factory employing 1000 workers making a very 
important instrument of war. Is the factory, or the city, a proper target for air 
bombardment? And third, suppose that the same city has within its area a number 
of factories making important instruments of war, and employing the entire 
work force of the city. Are the factories, or is the city, a proper target for air 
bombardment? 

Under the classical rules discussed and enumerated above, to bomb the city 
with no war production factories would be terror bombing, pure and simple, 
and would be a violation of the law of armed conflict. It would be an attack on 
a non-military objective which could be of no military advantage to the attacker 
except the possible demoralization of the enemy civilian population. With 
respect to this type of activity Lauterpacht has said: 

". . . it is in that prohibition, which is a clear rule of law, of intentional 
terrorization — or destruction — of the civilian population as an avowed or obvious 
object of attack that lies the last vestige of the claim that war can be legally regulated 
at all. Without that irreducible principle of restraint there is no limit to the license 
and depravity of force. ..." 

Even the proponents of more "liberal" rules of air bombardment do not assert 
the legality of bombing of this type. 

What of the large city with only one small factory in which is made a product 
of value to its country's war-effort? Certainly the bombing and destruction of 
such a factory would meet the test of resulting in a distinct military advantage 
to the attacker. It would not meet the test of being located in the zone of 
operations — but is that test, originally established when only cities in the zone 
of land operations could be reached by artillery bombardment, a valid test to be 
applied to air bombardment which can reach anywhere in the world? Moreover, 
it would meet the test of the requirements for naval bombardment. It would 



1 50 Levle on the Law of War 

probably not meet the test of being located where the bombing can take place 
without clanger to the civilian population. However, it appears that practice 
during and since World War II would permit the factory to be subjected to air 
attack. As the Report points out, in recent armed conflicts belligerents have 
frequendy made accusations of attacks upon non-military objectives and the 
enemy belligerent has denied the fact without either side questioning the 
propriety of the distinction as to types of objectives. 

Finally, what of the large city with many factories and most of the work force 
engaged in the war effort? Let us assume that in time of armed conflict 40% of 
the population constitute the work force — but that still means that 60% of the 
civilian population, 300,000 people of this city, is made up of women, children, 
aged, sick, etc. Must the attacker pick out individual targets, the real military 
objectives? Or may he blanket the entire city with bombs, thus ensuring that all 
of the plants are destroyed — but also ensuring that a large part of the population, 
worker and nonworker, is likewise destroyed? Spaight would answer this latter 
question in the affirmative. He says: 

". . . There are in any given enemy city thousands of civilians, of 'noncombatants' 
in the old sense, but there are also thousands who cannot be called 'noncombatants' 
in any true meaning of the term. The former suffer inevitably because the latter 
have, quite properly, to be prevented from pursuing their lethal activities. It is a 
tragedy of juxtaposition which is not entirely without precedent. Noncombatants 

have often suffered in bombardments by land and naval forces, but their suffering 

154 
has never been held to make the bombardment illegal. ..." 

And he repeatedly asserts that so-called "target-area bombing" is an "established 
usage" and that it "cannot be considered to offend against the principles of the 
international law of war." " The problem which then confronts us is that we 

~ 1 S6 

have returned to the doctrine of "total war," war as fought centuries ago: 
when the besieged city fell, all of its inhabitants were slaughtered and the city 
itself was put to the torch. 

The Report makes the suggestion with respect to strategic bombing 
conducted on a target-area basis that "(it) would seem that measures to examine 
the effects of this kind of military operations within their legal context may now 
be desirable, and the question of defining limits might be usefully studied." 
With this modest proposal there can be no possible dispute. The question which 
then presents itself is, what are possible solutions to the problem? And, which 
of these possible solutions offers the greatest amount of protection to the civilian 
population? 

Air bombardment could, of course, be limited to areas where combat is 
actually taking place — the old concept of the "zone of operations." This, in 
effect, means tactical bombing, and would preclude strategic bombing. While 



Major Inadequacies 151 

this would, in large part, solve the problem, it is extremely doubtful that it would 
be possible to secure the agreement of Governments to such a stringent rule. 
Moreover, even if the agreement of Governments were obtained, it is doubtful 

that there would be compliance with such a rule in practice. 

159 
The Report proposes the establishment of safety zones, apparendy similar to, 

but much larger than, the hospital zones referred to in Annex I to the First and 

160 

Fourth Geneva Conventions of 1949. Presumably there would be no bombing 

whatsoever permitted within the safety zones and no restrictions on bombing 

elsewhere. While this might work for small groups and in small areas, it appears to 

be totally impractical for the protection of tens or hundreds of millions of civilians. 

The logistic problem alone would be insurmountable; and with thousands of square 

miles within a safety zone, the unlawful use of such areas for the protection of 

important military matters would probably be inevitable. 

The Draft Rules prepared by the ICRC and submitted to the XlXth 

1 61 
International Conference of the Red Cross at New Delhi in 1957 contain a 

number of provisions intended to provide maximum protection for the civilian 

population. An examination of the various provisions of these Draft Rules makes 

it clear why they were received by the Governments with a "crushing silence." 

While they are, as would be expected, as humanitarian as it would be possible 

to draft such rules, they are also impractical to the point where it is extremely 

doubtful that any armed force would be able to comply with them in time of 

armed conflict. While this, as we shall see, is not true of all of these Draft Rules, 

a much more practical set of general principles was drafted by the ICRC for 

consideration by its group of experts in 1968. These principles would limit air 

bombardment to identified military objectives; would place upon the attacker 

the duty to use care in attacking the identified military objective; and would 

apply the principle of proportionality as between the identified military objective 

and any possible harm to the civilian population. '"" These principles would 

clearly prohibit target-area bombing; but there does not appear to be any reason 

why such an important rule should not be specifically set out. 

It is clear now, as it has been in the past, that no rule has as yet been conceived 

which will give full protection to the civilian population and yet will be 

acceptable to Governments. However, if man can devise instruments to send a 

spaceship to the moon and have it land within a matter of yards from its target, 

man can certainly devise, if he has not already done so, instruments which will 

put a bomb exactly on target. On the basis of this premise, the following rules 

on aerial bombardment are suggested: 

1. Terror Bombing Prohibited. Attacks directed against the civilian population, 
as such, whether with the object of terrorizing it, or for any other reason, are 
prohibited. 



1 52 Levie on the Law of War 

2. Target-Area Bombing Prohibited. It is forbidden to attack, as a single 
objective, an area including several military objectives at a distance from one 
another where members of the civilian population are located between such 
military objectives. 

3. Military Objectives. 

(a) Before bombing a military objective, the attacking force must have 
sufficiently identified it as such. 

(b) In bombardments against military objectives, the attacking force must 

take every possible precaution in order to avoid inflicting damage on the civilian 

i 166 

population. 

(c) To constitute a military objective a target must fall within one of the 
categories listed in the annex hereto. 

It is believed that these rules will, under present and foreseeable technological 
standards, provide a maximum of protection to the civilian population, while 
placing acceptable limitations on the scope of strategic bombing. 

Conclusion 

Armed conflict is, by its very nature, unhumanitarian. However, 
humanitarian rules, properly applied, can do much to mitigate this situation. It 
is believed that were the proposals made herein to be adopted as part of the law 
of armed conflict, they would go far to provide additional needed protection 
for both combatant and civilian noncombatant. 

As has been stated, this paper represents an attempt to deal with only some of 
the present major inadequacies of the law of armed conflict; and their selection 
and priority must be ascribed to the personal predilections of the author. There 
are a number of other areas which might well have been included and which 
may well be considered by some to have equal, or even greater, importance. 
These might include: enforcement of the law of armed conflict; combat at sea, 
particularly submarine warfare; the status of guerrillas and partisans; the use of 
starvation as a weapon; etc. The selection made of the subjects to be discussed 
should certainly not be considered as in any way denigrating the importance to 
the cause of humanitarianism in armed conflict of many other such subjects. 



Major Inadequacies 153 

APPENDIX 1 
Twenty-third session 
Agenda item 62 

RESOLUTION ADOPTED BY THE 
GENERAL ASSEMBLY 

[on the report of the Third Committee (A/7433)] 

2444 (XXIII). Respect for human rights in armed conflicts 

The General Assembly, 

Recognizing the necessity of applying basic humanitarian principles in all armed conflicts, 
Taking note of resolution XXIII on human rights in armed conflicts, adopted on 12 May 1968 
by the International Conference on Human Rights, 

Affirming that the provisions of that resolution need to be implemented as soon as possible, 

1. Affirms resolution XXVIII of the XXth International Conference of the Red Cross held at 
Vienna in 1965, which laid down, inter alia, the following principles for observance by all 
governmental and other authorities responsible for action in armed conflicts: 

(a) That the right of the parties to a conflict to adopt means of injuring the enemy is not 
unlimited; 

(b) That it is prohibited to launch attacks against the civilian population as such; 

(c) That 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; 

2. Invites the Secretary-General, in consultation with the International Committee of the Red 
Cross and other appropriate international organizations, to study: 

(a) Steps which could be taken to secure the better application of existing humanitarian 
international conventions and rules in all armed conflicts; 

(b) The need for additional humanitarian international conventions or for other appropriate 
legal instruments to ensure the better protection of civilians, prisoners and combatants in all armed 
conflicts and the prohibition and limitation of the use of certain methods and means of warfare; 

3. Requests the Secretary-General to take all other necessary steps to give effect to the provisions 
of the present resolution and to report to the General Assembly at its twenty-fourth session on 
the steps he has taken; 

4. Further requests Member States to extend all possible assistance to the Secretary-General in 
the preparation of the study requested in paragraph 2 above; 

5. Calls upon all States which have not done so to become parties to the Hague Convention 
of 1899 and 1907, the Geneva Protocol of 1925 and the Geneva Conventions of 1949. 

1 748th plenary meeting, 
19 December 1968. 
FOOTNOTES 

1. See Final Act of the International Conference on Human Rights (United Nations publication, 
Sales No.: E. 68. XIV.2), p. 18. 

2. Carnegie Endowment for International Peace, The Hague Convention and Declarations 
1899-1907 (New York: Oxford University Press, 1918). 

3. League of Nations, Treaty Series, vol. XCIV (1929), No. 2138. 

4. United Nations, Treaty Series, vol. 75 (1950), Nos. 970-973. 



1 54 Levie on the Law of War 

Notes 

1. Stone, Legal Controls of International Conflict 335 (1954, reprinted 1959). The statement that the 
codified law of war still exceeds the law of peace is probably now no longer true in view of the perhaps 
unanticipated success of the International Law Commission in securing the acceptance of a number of its draft 
conventions such as those on the Law of the Sea, Diplomatic Immunities, Consular Relations, and Treaties. 

2. See note 84 infra. To a limited extent it might be considered that the 1954 Hague Convention for 
the Protection of Cultural Property in the Event of Armed Conflict (249 U.N.T.S. 215) also falls in this 
category; but, of course, it attempts to protect property, not people. 

3. International Committee of the Red Cross, Reaffirmation and Development of the Laws and 
Customs Applicable in Armed Conflict 6 (1969) [hereinafter cited as ICRC, Reaffirmation]. This document 
is a report submitted to the XXIst International Conference of the Red Cross, held in Istanbul in September 
1969. 

4. It has at times been suggested that the condition for the termination of the 1907 Hague Declaration 
Prohibiting the Discharge of Projectiles and Explosives from Balloons (36 Stat. 2439, 2 Am. J. Int'l L. Supp.216 
(1908)) has never occurred and that, therefore, the Declaration is still in force. In view of the practice of nations 
prior to, during, and since World War II, there would appear to be little merit to such an argument. Moreover, 
the United States and the United Kingdom are the only major powers which ratified it. 

5. "The League of Nations and the Laws of War," 1920-21 Brit. Ybk. Int'l L. 109, 114-15. 

6. Ray, Commentaire du Pacte de la Societe des Nations 528 (1930). 

7. Constantopoulos , "Les raisons de la crise du droit de la guerre," 7 Jahrbuch fur Internationales Recht 
22, 25 (1957). In this regard, see note 11 infra. 

8. Writing in 1931 one author pointed out that neither the Pact of the League of Nations, nor the 
Kellogg-Briand Pact of 1928, could guarantee that there would be no future wars. Rasmussen, Code des 
Prisonniers de Guerre 72 (1931). And commenting on the 1934 Monaco Conference, de la Pradelle said: 

"... Doctors and lawyers denounced the conspiracy of silence which, lest public opinion be frightened, 
had been adopted in official circles and which consisted of not speaking about the laws of war." (Translation 
mine.) 
La Conference Diplomatique et les Nouvelles Conventions de Geneve du 12 aout 1949, at 13 (1951). 

9. 36 Stat. 2277; 2 Am. J. Int'l L. Supp. 90 (1908). 

10. It is true that occasional attempts to further codify some limited aspects of the law of war were made, 
despite the inhospitable atmosphere. Thus, naval conferences were held in Washington in 1922 and in London 
in 1930 and 1936. However, these conferences, which were not even always successful in producing an 
effective result, merely scratched the surface of the work which needed to be done. 

11. It is essential to bear in mind that to a considerable extent the existing law of war was observed during 
World War II. True, there were many well publicized violations of that law, the so-called "conventional war 
crimes." But see Baxter, "The Role of Law in Modern War," 1953 Proc. Am. Soc. Int'l L. 90, 92 where the 
following appears: 

"Those who are most scornful of the attempts which the law of war makes to mitigate human suffering 
in war inevitably point to the barbarities which were practiced in the second World War. These accusations 
overlook the extent to which states did comply with the law of war, the advantage of a fixed standard against 
which to measure the conduct of those who were the most flagrant in the violation of all international law, 
and the subsequent vindication of the validity of the norms of international law through the imposition of 
sanctions in the war crimes proceedings. ..." 

12. Report of the International Law Commission to the General Assembly on the Work of the First 
Session, 1949 Ybk. Int'l L. Comm'n 281. And the International Law Commission did not stand alone. See, 
for example, the position of Scelle, set forth in Francois, "Reconsideration des principes du droit de la guerre," 
47 (I) Annuaire de l'lnstitut de Droit International 491, 493 (1957); and Fenwick's comment on Baxter, 
"Forces for Compliance with the Law of War," 1964 Proc. Am. Soc. Int'l L. 82, 97. 

13. See, for example, Kunz, "The Chaotic Status of the Laws of War and the Urgent Necessity for their 
Revision," 45 Am. J. Int'l L. 37 (1951); Lauterpacht, "The Problem of the Revision of the Law of War," 29 
Brit. Ybk. Int'l L. 360 (1952); Coudert, Francois and Lauterpacht, "La revision du droit de la guerre," 45 (I) 
Annuaire de l'lnstitut de Droit International 555 (1954); Jessup, "Political and Humanitarian Approaches to 
Limitation of Warfare," 51 Am. J. Int'l L. 757, 759 (1957); Accioly, "Guerre et neutralite en face du droit des 
gens contemporain" in Melange Basdevant 1-2, 7 (1960); and Pictet, "The Need to Restore the Laws and 
Customs Relating to Armed Conflict," Rev. Int'l Comm'n Jur., No. 1 (March 1969), 22, 37. 

1 4. Actually, the 1 907 Hague Regulations (note 9 supra) were in large part a comparatively minor revision 
of the Regulations attached to the 1899 Second Hague Convention, 32 Stat. 1803; 1 Am. J. Int'l L. Supp. 
129 (1907). 



Major Inadequacies 155 

15. The following very apt statement appears in Pictet, "The XXth International Conference of the Red 
Cross: Results in the Legal Field," 7 J. Int'l Comm'njur., 3, 11 (1966): 

"... whereas the ruined cities [of World War II] have been rebuilt, the States have done nothing to 
restore the Hague Rules, which vanished under the same ruins . . . While the techniques of offensive action 
have taken giant strides forward, the only rules which can be invoked date from 1907. Such a situation is 
flagrant in its absurdity." 

The Secretary-General's Report on Respect for Human Rights in Armed Conflict, A/7720, para. 131, is to 
the same effect, stating that military-technical developments "have brought major changes which the authors 
of existing international instruments could not envisage." And that many governments share the belief that 
affirmative action is needed in this area is demonstrated by a number of the answers received by the 
Secretary-General in response to his inquiry regarding the preparation of A/7720. See the replies of Finland 
(at 76 of the original United Nations document); Hungary (at 77); Morocco (at 82); Norway (at 82); and 
Romania (at 85). This Report is, of course, the basis for this paper and for the Fourteenth Hammarskjold 
Forum of the Association of the Bar of the City of New York. It will be referred to simply as "the Report" 
or as A/7720, and will be cited as A/7720. 

16. This reluctance on its part, and a similar reluctance on the part of the various subsidiary organs of 
the United Nations, is noted in A/7720, para. 19. 

17. Resolution XXIII of the International Conference on Human Rights, Teheran, April-May 1968 
(United Nations publication, Sales No.: E. 68. XIV 2), at 18. 

18. See Appendix 1 hereto. 

19. See note 15 supra. 

20. It will be noted that operative paragraph 1 has now been given a somewhat different emphasis, an 
emphasis of a type which has tended to permeate all United Nations actions in recent years. It is to be hoped 
that this will not be to the detriment of a revision and modernization of the general law of war which, of 
course, is, or should be, largely applicable in both international and internal conflicts. 

21. "Powerful" in the sense that it has strong support from people all over the world who are acquainted 
with and who welcome its methods and objectives. Apart from its dedication to humanitarian endeavors, the 
ICRC has found that "belligerents necessarily consider this law [of war] as a single whole, and the inadequacy 
of the rules relating to the conduct of hostilities has a negative impact on the observance of the Geneva 
Conventions." ICRC, Reaffirmation 8. 

22. It has been the practice to refer to the rules governing the conduct of hostilities as "Hague" law and 
to the rules governing the treatment of people (wounded and sick, prisoners of war, civilians) as "Geneva" 
law. See, for example, Pictet, note 13 supra, at 23. There is no merit to such a distinction. The 1899 and the 
1907 Hague Regulations dealt with, inter alia, prisoners of war and military occupation. Those subjects are 
now covered in whole or in part by the Third and Fourth 1949 Geneva Conventions, respectively (see note 

25 infra). And the 1925 Geneva Gas Protocol (see note 84 infra) as well as the ICRC's Draft Rules (see note 

26 infra) are both concerned with permissible weapons, methods of attacks, etc., subjects which are basic to 
the Hague Regulations. Were it not for the 1954 Hague Cultural Convention (see note 2 supra), it might well 
be assumed that, the Netherlands no longer having the neutral status which it enjoyed prior to World War 
II, the nations of the world prefer to discuss subjects dealing with hostilities in still-neutral Switzerland. In any 
event, whether it is "Hague" law governing the conduct of hostilities or "Geneva" law governing the treatment 
of persons, its ultimate objective is humanitarian in nature. 

23. This new version was the 1929 Geneva Convention for the Amelioration of the Conditions of the 
Wounded and Sick in Armies in the Field, 47 Stat. 2074; 118 L.N.T.S. 303; 27 Am. J. Int'l L. Supp. 43 (1933). 

24. The 1929 Geneva Convention Relative to the Treatment of Prisoners of War, 47 Stat. 2021; 118 
L.N.T.S. 343, 27 Am. J. Int'l L. Supp. 59 (1933). 

25. The 1949 Geneva Convention for the Amelioration of the Conditon of the Wounded and Sick in 
Armed Forces in the Field (the "First" Convention), 6 U.S.T. 3114; 75 U.N.T.S. 31; the 1949 Geneva 
Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of 
Armed Forces at Sea (the "Second" Convention), 6 U.S.T. 3217; 75 U.N.T.S. 85; the 1949 Geneva 
Convention Relative to the Treatment of Prisoners of War (the "Third" Convention), 6 U.S.T. 3316; 75 
U.N.T.S. 135; 47 Am. J. Int'l L. Supp. 119 (1953); and the 1949 Geneva Convention Relative to the Protection 
of Civilian Persons in Time of War (the "Fourth" Convention), 6 U.S.T. 3516; 75 U.N.T.S. 287; 50 Am. 
J. Int'l L. Supp. 724 (1956). Regarding this achievement Spaight is reported to have said: 

"The historians of the future will be puzzled by the conclusion of three [sic] new Geneva Conventions 
in 1949, and the failure of the powers who agreed to them to do anything to regulate those methods of war 
which, if continued, will make the humanitarian provisions of those Conventions read like hypocritical 
nonsense." 

Quoted in Dunbar, "The Legal Regulation of Modern Warfare," 40 Trans. Grot. Soc. 83, 91 (1955). 



1 56 Levie on the Law of War 

26. This is the Fourth Convention, note 25 supra. Of course, even the ICRC is not always immediately 
successful in its humanitarian efforts. In 1957 it presented to the XlXth International Conference of the Red 
Cross, meeting in New Delhi, its Draft Rules for the Limitation of the Dangers Incurred by the Civilian 
Population in Time of War. The Conference adopted a resolution requesting the ICRC to transmit the Draft 
Rules to the Governments. To quote the ICRC Director-General: 

"[T]heir replies took the form of a crushing silence, with the exception of a few well-disposed countries. 
The great powers, in particular, remained silent . . ." 
Pictet, note 15 supra, at 12. 

27. Operative subparagraphs 1 (a), (b), and (c) of A/RES/2444 (XXIII) were taken verbatim from the 
Red Cross resolution which is itself cited in the opening part of operative paragraph 1 of the United Nations 
resolution. The General Assembly omitted a fourth paragraph of the Red Cross resolution which stated "that 
the general principles of the Law of War apply to nuclear and similar weapons." 

28. See Resolutions X, XI, XII, XIII, XIV, XVII, and XVIII, 9 Int'l Rev. Red Cross 613-19 (1969). 
Of particular relevance is the following extract from Resolution XIII, in which the Conference 

"requests the ICRC on the basis of its report [ICRC, Reaffirmation] to pursue actively its efforts in this 
regard with a view to: 

1. proposing, as soon as possible, concrete rules which would supplement the existing humanitarian law, 

2. inviting governmental, Red Cross and other experts representing the principal legal and social systems in 
the world to meet for consultations with the ICRC on these proposals, 

3. submitting such proposals to Governments for their comments, and 

4. if it is deemed advisable, recommending the appropriate authorities to convene one or more diplomatic 
conferences of States parties to the Geneva Conventions and other interested States, in order to elaborate 
international legal instruments incorporating those proposals." 

29. As of October 15, 1969, just over 20 years from the date on which they were signed, the four 1949 
Geneva Conventions had 125 ratifications and accessions. 9 Int'l Rev. Red Cross 646 (1969). (The data 
contained in note 49 of A/7720 is incorrect. That contained in Annex IIB of A/7720 is correct.) It should be 
observed that all of the great powers are Parties to these Conventions. It is interesting to note that the practice 
of Governments is apparently contrary to the decision of the International Law Commission discussed in the 
text in connection with note 12 supra. Ratifications and accessions to these "war" conventions far exceed 
those to any of the conventions drafted by the Commission, as important as these latter are. 

30. See text in connection with note 12 supra. 

31. ICRC, Reaffirmation 11 

32. Para. 21. 

33. As further evidence of the post-World War II antipathy to the use of the word "war," it might be 
noted that, apart from Article 107 referring to World War II, it is not used anywhere in the Charter of the 
United Nations; instead we find such terms as "international disputes," "breaches of peace," "acts of 
aggression," etc. Universal adoption of the term "armed conflict," a term already familiar to those acquainted 
with the four 1949 Geneva Conventions and the 1954 Hague Cultural Convention, will certainly result in 
uniformity of language — even if some who are less able to accept new ideas will, for a time, have to think 
twice and then say "Oh, you mean the law of war!" 

34. This problem is, of course, also of major importance with respect to internal conflict (civil war) and 
the question of the application of one of the so-called "common" articles (Article 3) of the 1949 Geneva 
Conventions. 

35. 36 Stat. 2259; 2 Am. J. Int'l L. Supp. 85 (1908). 

36. "... Thus the wars of Italy with Abyssinia in 1935, of Japan with China in 1937, of Germany with 
Poland in 1939, of Russia with Finland in the same year, and of Japan with the United States in 1941, opened 
without a formal declaration of war." 

2 Lauterpacht-Oppenheim, International Law 292-93 (7th ed., 1952). But there were a number of cases of 
compliance during both World War I (ibid., at 294, footnote 2) and World War II (ibid., at 295, footnote 3). 

37. Pictet (ed.), Commentary on the 1949 Geneva Convention Relative to the Treatment of Prisoners 
of War 19-20 (1960) [hereinafter cited as Pictet, Third Commentary]. 

38. I Final Record of the Diplomatic Conference of Geneva of 1949, at 47 [hereinafter cited as Final 
Record]. This is the first paragraph of common Article 2 and is, therefore, identical in Article 2 of each of the 
four 1949 Geneva Conventions. It is also employed in Article 18 (1) of the 1954 Hague Cultural Convention, 
supra note 2. 

39. Pictet, Third Commentary 22-23. 

40. Levie, "Maltreatment of Prisoners of War in Vietnam," 48 B.U.L. Rev. 323, 330 (1968); Note, 
"The Geneva Convention and the Treatment of Prisoners of War in Vietnam," 80 Harv. L. Rev. 851 , 858-59 
(1967). 



Major Inadequacies 157 

41. ICRC, Reaffirmation 94. 

42. It is obvious that this proposal jumps squarely into the problem of the enforcement of the law of 
armed conflict which is, without question, another area requiring major action. 

43. IIB Final Record 11 and 16. Further amplification of the proposal, which was clearly required, was 
not forthcoming and its adoption was not pressed. 

44. Annex 21, III Final Record 30. 

45. Resolution 2, I Final Record 361. So far as is known, this resolution has never been implemented. 

46. In addition, it might be noted that the Security Council undoubtedly already has the power to make 
such a decision; that it has heretofore, in effect, made such a decision, but always in the context of a call for 
a cessation of the armed conflict so found to exist (e.g, S/RES/233 (1967), adopted June 6, 1967, in which 
the Security Council states its concern "at the outbreak of fighting" in the Middle East and calls for "a cessation 
of all military activities in the area"); and that it has not, and probably will not, ever exercise such power in 
the context of the proposal under discussion as to do so would be an admission of its inability to eliminate 
completely the breach of the peace involved. 

47. To gain support at the outset and to ensure complete impartiality, it might be denied jurisdiction 
over fact situations existing at the time of its creation. 

48. The General Assembly has, on a number of occasions, called upon its Members "to make effective 
use of existing facilities for fact-finding" (e.g., A/RES/2330 (XXII)). The present proposal would, in effect, 
merely create a new specialized fact-finding body and provide for certain results to flow automatically if 
specified facts are found. It is a variation and expansion of the Commission of Inquiry originally created by 
the First Hague Convention of 1899 (32 Stat. 1779; 1 Am. J. Int'l L. Supp. 107 (1907) and applied for the 
first time in the Dogger Bank Incident (Scott, Hague Court Reports 403 (1916)). 

49. Of course, many additional details of creation and operation would necessarily be included in any 
convention establishing such a body; but these appear to be unnecessary for the purposes of this paper. 
However, it should be mentioned that, as in the case of the Protecting Power in the 1 949 Geneva Conventions, 
provision would have to be made for the ICEHRAC to use, when needed, an operational staff. 

50. While it is true that the provision for automatic economic and communications sanctions goes even 
somewhat beyond the comparable provisions of the Charter of the United Nations, it is suggested that the 
majority of law-abiding States have come to realize that there will always be a few delinquents among them 
and that only the absolute knowledge of automatic, effective, and universal sanctions will tend to keep the 
delinquent States in line. (The sanctions against Rhodesia can scarcely be described with those adjectives!) 

51. Certainly, the 125 ratifications of and accessions to the 1949 Geneva Conventions, which were 
drafted before many of the acceding States were even in existence as members of the international community, 
were not obtained merely because of an overwhelming urge on the part of nations to be Parties to it; they 
were obtained because of moral and humanitarian pressures and because few nations were willing to be pointed 
at as not having accepted these great humanitarian expressions. 

52. Can there be any great doubt that President Nixon's announcement concerning his intended actions 
with respect to chemical and biological warfare (see section 3 infra) was motivated not only by humanitarian 
considerations but also by the increasing feeling of isolation which the United States was being compelled to 
endure in this respect, as well as diplomatic pressure from friends, resolutions of the General Assembly, 
resolutions of the ICRC, etc.? 

53. Levie, "Prisoners of War and the Protecting Power," 55 Am J. Int'l L. 374, 376 (1961). 

54. Ibid., 377-78. 

55. See note 24 supra. 

56. The basic article relating to the Protecting Power is one of the common articles, Article 8/8/8/9. 
References to this institution appear throughout the Conventions. See Levie, note 53 supra, at 380-81, where 
there is a list of 36 articles in the Prisoner-of-War Convention containing references to the Protecting Power. 

57. Common Article 10/10/10/11 covers this latter subject. The U.S.S.R. and the other Communist 
countries all reserved to these articles. 

58. A/7720, para. 213. 

59. Ibid. 

60. It is probable that the United States has not even attempted to secure the designation of a Protecting 
Power in Vietnam because such action would appear to constitute a legal recognition not only of North 
Vietnam as a State, but also, and perhaps more important, of the existence of a state of war. 

61. A/7720, at 78 of the original United Nations document. 

62. Ibid., it 91. 

63. Ibid., para. 215. See also para. 203. 

64. "Nigeria/Biafra: Armed Conflict with a Vengeance," Rev. Int'l Comm'n Jur., No. 2 (June 1969) 
10, 13. 



1 58 Levie on the Law of War 

65. See note 28 supra. In view of the fact that the 1949 Geneva Conventions clearly indicate that the 
activities of the Protecting Power and of the ICRC are complementary and not alternative (see Levie, note 
53 supra, at 394-96), it is difficult to understand why the resolution was phrased in the disjunctive. 

66. ICRC, Reaffirmation, at 7, where the following appears: 

". . . Thus the wars of Italy with Abyssinia in 1935, ofjapan with China in 1937, of Germany with Poland 
in 1939, of Russia with Finland in the same year, and ofjapan with the United States in 1941, opened without 
a formal declaration of war." 
To the same effect see ibid., 87-88. 

67. Common Article 9/9/9/10 is the basic provision of the four 1949 Geneva Conventions relating to 
the activities of the ICRC. Paragraph 3 of common Article 10/10/10/11, concerning replacements and 
substitutes for Protecting Powers, permits the ICRC to offer its services to perform the humanitarian functions 
of the Protecting Power when there is no Protecting Power. This is probably the basis upon which the ICRC 
has acted in the post- 1949 Geneva Conventions era. One of its more successful recent efforts was in connection 
with the Honduras-Salvador conflict. 9 Int'l Rev. Red Cross 493-96 (1969), 10 ibid., 95-105 (1970). 

68. A/1120, para. 226. Italy suggested considering the possibility of "delegating authority to the 
International Red Cross, so that that body may, in the case of armed conflict, ensure that its own representatives 
are continually present in the belligerent countries throughout the duration of the conflict." Ibid., at 79 of the 
original United Nations document. A somewhat similar suggestion was made by the group of experts convened 
by the ICRC. ICRC, Reaffirmation 107. 

69. Le Comite International de la Croix-Rouge et le Conflit de Coree: Recueil des Documents, passim 
(2 vols., 1952); British Ministry of Defence, Treatment of British Prisoners of War in Korea 33-34 (1955). 

70. "The International Committee and the Vietnam Conflict," 6 Int'l Rev. Red Cross 399, 402-03 
(1966); St. Louis Post-Dispatch, Feb. 5, 1970, p. 2B, col. 1. 

71 . Strangely enough, it has apparently been permitted to function with virtually no restrictions in Israel 
for the protection of both prisoners of war and of civilians in the occupied territory. See, for example, 8 Int'l 
Rev. Red Cross 18-19 (1968); 9 ibid., 173-76, 417-19, 488, and 640. On the other hand, the United Nations 
has encountered some difficulty in making an investigation of the treatment of civilians in the occupied territory 
because of the Israeli position that the resolution calling for it was biased and one-sided. However, even the 
International Conference of the Red Cross found it necessary to express concern about the plight of these 
people. 9 Int'l Rev. Red Cross 613 (1969). 

72. The Report also makes a suggestion to this latter effect. A/7720, para. 217. It is entirely possible, 
however, that some States, notably Switzerland and Sweden, which did yeoman work as Protecting Powers 
during both World Wars, would not wish to shoulder these additional, and potentially controversial, problems. 
This would make the solution herein suggested all the more necessary. It might be appropriate to cover this 
eventuality by providing for a possible division of functions, where desired, the Protecting Power, if there be 
one, performing the traditional functions with respect to wounded and sick, prisoners of war, and civilians, 
and the substitute performing the function with respect to the conduct of hostilities. 

73. In ICRC, Reaffirmation 89-90, this is ascribed to the fact that many of the conflicts since 1949 have 
been of an internal nature; but what of Korea, the Yemen, Vietnam, the Middle East, etc.? In none of these 
conflicts has there been a Protecting Power. 

74. In A/7720, para. 216, it is suggested that a new organ be created which could "offer its services in 
case the Parties do not exercise their choice." For the reasons already advanced, it is not belived that any system 
other than one which operates automatically will constitute a solution to the problem. 

75. This calls for selection by one State, acceptance by the State so selected, and approval by the State 
on whose territory the Protecting Power is to operate. See Levie, note 53 supra, at 383. 

76. The Report (A/1120, para. 218) makes two suggestions with respect to the legal effect of the 
designation of a Protecting Power or of an international organ as a substitute therefor: (1) that the Protecting 
Power, or the substitute, should be considered as an agent of the international community and not merely of 
one belligerent State; and (2) that the designation, being solely humanitarian in purpose, should have no legal 
consequences. The first comment is already true under the 1949 Geneva Conventions, although the term 
"Parties to the Convention" is deemed appropriate rather than "international community" (see Levie, note 
53 supra, at 382-83); and the second comment might well be accomplished by the use of a provision such as 
that appearing in the last paragraph of common Article 3 of the 1949 Conventions: "The application of the 
preceding provisions shall not affect the legal status of the Parties to the conflict." This provision was eventually 
applied during the French- Algerian conflict of the late 1950s and early 1960s. 

77. The ICRC experts were also of this opinion. ICRC, Reaffirmation 89 and 91. Had such an 
international body heretofore existed with such powers and duties, there could have been immediate 
investigations of allegations of such charges as the use of gas in the Yemen by the United Arab Republic, of 
bacteriological agents in Korea by the United Nations Command, etc. In this regard, see Joyce, Red Cross 



Major Inadequacies 159 

International 201 (1959). In fact, it is probably safe to say that under these circumstances many such allegations 
would never be made in the first place! 

78. The subject is there discussed at length. A/7720, paras. 216-225. Despite the cautious defense of the 
use of a political organization as a Protecting Power, made in the last paragraph cited, it would appear that, 
for the reasons heretofore stated (see text in connection with note 46 supra), the creation of a new, non-political 
body is basically the position taken by the Report. 

79. See note 57 supra. The reservations were justified. The article, in effect, authorizes the Detaining 
Power to unilaterally select a substitute for the Protecting Power. The reservations would merely require 
agreement on the part of the Power of Origin, as in the case of the selection of the Protecting Power itself. 
See note 75 supra. Of course, were it a Party to the new convention which we are discussing, it would have 
agreed in advance to the filling of the void by the ICEHRAC. 

80. I Final Record 201. Concerning this resolution, see the text in connection with note 45 supra. 

81. Once again, of course, the ICEHRAC would need a fairly large operational staff, including many 
specialists, to serve as its eyes and ears to collect and sift evidence. But this is no more than an administrative 
problem which should present no insurmountable difficulty. 

82. There is no reason whatsoever why, under appropriate legal safeguards (see note 76 supra), these 
provisions could not be made applicable to internal conflicts, and to conflicts of "national liberation," which 
are frequendy much more sanguinary than are international conflicts. "Nigeria/Biafra: Armed Conflict with 
a Vengeance," he. cit., note 64 supra. 

83. The question will undoubtedly be asked immediately why the present discussion concerning the 
elimination of chemical and biological weapons does not include nuclear weapons. That matter has been, and 
continues to be, one of the major subjects of discussion at the meetings of the nuclear powers themselves and 
at the meetings of the Conference of the Committee on Disarmament (formerly the Eighteen-Nation 
Committee on Disarmament). The status of these various discussions and the reason for the stalemate which 
has now existed for more than a decade is well known. It could not conceivably serve any useful purpose for 
this paper to make a proposal for the banning of nuclear weapons, with or without inspection. Probably only 
some scientific breakthrough will solve that problem. In the meantime we have what some call "the equilibrium 
of dissuasion." ICRC, Reaffirmation 50. 

84. The Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other 
Gases and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925 (94 L.N.T.S. 65; 25 
Am. J. Int'l L. Supp. 94 (1931)), uses the term "bacteriological." Because scientific developments since 1925 
have indicated the possible use in armed conflict of various living organisms (e.g, rickettsiae, viruses, and fungi), 
as well as bacteria, the more inclusive "biological" is now very generally used. In this regard see the Report 
of the Secretary-General based on the Report of the Group of Consultant Experts, United Nations Document 
A/7575/Rev. 1 , Chemical and Bacteriological (Biological) Weapons and the Effect of Their Possible Use 
(United Nations publication, Sales No.: E. 69, I. 24), paras. 17-18 [hereinafter cited as UN, .CB Weapons], 
and Article I of the British Draft Convention, note 130 infra, which refers to "microbial and other biological 
agents." 

85. In the Foreword to the Report of the Secretary-General (see UN, CB Weapons, note 84 supra, at 
viii), U Thant quoted as follows from his 1968 Annual Report: 

"... The question of chemical and biological weapons has been overshadowed by the question 
of nuclear weapons, which have a destructive power several orders of magnitude greater than that of 
chemical and biological weapons. Nevertheless, these too are weapons of mass destruction regarded 
with universal horror. In some respects, they may be even more dangerous than nuclear weapons 
because they do not require the enormous expenditure of financial and scientific resources that are 
required for nuclear weapons. Almost all countries, including small ones and developing ones, may 
have access to these weapons, which can be manufactured quite cheaply, quickly and secredy in small 
laboratories or factories ..." 

86. A comparatively short list of some of the works in this area will be found in UN, CB Weapons, note 
84 supra, at 99. To that list should certainly be added McCarthy, The Ultimate Folly: War by Pestilence, 
Asphyxiation, and Defoliation (1969). 

87. Mention need be made of only two authoritative forums where numerous discussions of this subject 
have taken place: the United Nations, where it has been discussed at length both in the First Committee and 
in the General Assembly; and the United States Congress where Representative Richard D. McCarthy and 
others similarly concerned have not allowed the matter to pass unnoticed. See, for example, N.Y. Times, 
Nov. 19, 1969, p. 9, col 1. 

88. One author makes the rather pessimistic evaluation that this recent concern "is perhaps an index of 
the growing role of such weapons in military preparations." Brownlie, "Legal Aspects of CBW" in Rose (ed.), 
CBW: Chemical and Biological Warfare 141, 150-51 (1968). [This collection hereinafter cited as Rose, CBW]. 



1 60 Levie on the Law of War 









89. For a short but comprehensive history of the use or alleged use of chemicals in warfare, from the 
Peloponnesian Wars to Korea, see Kelly, "Gas Warfare in International Law," 9 Mil. L. Rev. 3-14 and passim 
(1960). 

90. Declaration of St. Petersburg of 1868 Renouncing the Use, in Time of War, of Explosive Projectiles, 
1 Am. J. Int'l L. Supp. 95 (1907). 

91. See note 14 supra. 

92. 1 Am. J. Int'l L. Supp. 157 (1907). The United States did not sign or ratify this Declaration. 

93. See note 9 supra. 

94. Article 171, Treaty of Versailles, 3 Malloy (Redmond), Treaties, 3331, 3402; 13 Am. J. Int'l L. Supp. 
151, 230 (1919). While the United States did not ratify this Treaty, it did ratify the Treaty of Berlin (42 Stat. 
1939; 16 Am. J. Int'l L. Supp. 10 (1922)), which incorporates by reference Article 171 of the Treaty of 
Versailles. 

95. 3 Malloy (Redmond) Treaties 3116; 16 Am J. Int'l. Supp. 57 (1922). 

96. A/7720, para. 53. 

97. See note 84 supra. 

98. A/1120, note 31 and Annex II, Tables I and II. 

99. This latter reservation preserves the right to use chemical and bacteriological agents as a reprisal for 
their first use by the enemy. Some writers would not even permit this use; and there is no doubt that an alleged 
reprisal can be the excuse for a first strike. 

100. Spaight, Air Power and War Rights 192-93 (3d ed., 1947). 

101. Meselson, "Ethical Problems: Preventing CBW," in Rose, CBW 163. 

102. As the former Assistant Secretary of Defense, Carter Burgess, later said: 
"It has been reported that following the Korean conflict there were no flies in China. Allegedly, the 

'germ warfare' propaganda of the Red Chinese was so effective that it incited a universal attack on these insects 

by the Chinese people." 

"Foreword: Prisoners of War," 56 Col. L. Rev. 676 (1956). 

103. Viney, "Research Policy: Soviet Union," in Rose, CBW 130,133. 

104. Meselson, "CBW in Use: The Yemen," in Rose, CBW 99 and 101. 

105. See note 26 supra. 

106. See, for example, A/RES/2162B (XXI), 5 December 1966; A/RES/2454A (XXIII), 20 December 
1968; and A/RES/2603B (XXIV), 16 December 1969. 

107. A/RES/2603A (XXTV), 16 December 1969. 

108. See, for example, Brownlie, note 88 supra, at 143-44, and O'Brien, "Biological/Chemical Warfare 
and the International Law of War," 51 Geo. L.J. 1, 36 (1962). 

109. There are 68 Parties to the 1925 Geneva Protocol after 45 years, compared to 125 Parties to the 
1949 Geneva Conventions after 20 years. 

110. U.S. Army Field Manual 27-10, The Law of Land Warfare, para. 38 (1956). While there is no explicit 
denial of the existence of a customary prohibition, this appears inherent in the tenor of the phraseology used. 
For an elaboration of the United States position, see 10 Whiteman, Digest of International Law, 455-56 (1968). 

111. See note 52 supra. 

112. N.Y. Times, Nov. 26, 1969, p. 16, col. 1; 61 Dept. State Bull. 541 (1969). 

113. On February 14, 1970, President Nixon ordered the destruction of all toxins which had been 
produced for weapons purposes. St. Louis Post-Dispatch, Feb. 15, 1970, p. 1, col. 1. These apparendy had 
been overlooked in the original announcement. 

114. It would almost seem as though, after years of exploiting the fact that the United States had not 
ratified the Protocol, the Soviet Union is now determined to place roadblocks in the announced intention of 
the United States to accept a prohibition on the use of biological weapons. In addition to its usual adamant 
objection to any treaty calling for verification procedures, it is now apparently insisting on a new agreement 
which would replace the 1925 Protocol and simultaneously ban both chemical and biological weapons, rather 
than retaining the old agreement and supplementing it with a new treaty prohibiting biological weapons as 
proposed by the British and accepted by the United States. St. Louis Post-Dispatch, Feb. 17, 1970, p. 2A, col. 
1. This latter dispute appears to be one of procedure, rather than substance, and the Soviet approach might 
well afford the opportunity for the necessary clarifications discussed immediately below. 

115. ICRC, Reaffirmation 58. See also A/7720, para. 201. 

116. N.Y. Times, Feb. 3, 1970, p. 3, col. 6. 

117. UN, CB Weapons, para. 20. 

118. Meselson, "Ethical Problems: Preventing CBW," in Rose, CBW 163, 167. 

119. Ibid. See also UN, CB Weapons, para. 374. 

120. Sidel, "Napalm," in Rose, CBW 44, 46. 



Major Inadequacies 161 

121. Ramundo, Peaceful Coexistence 138-39 (1967). It was recently reported that a suit had been filed 
against the Dow Chemical Co., formerly the chief manufacturer of napalm for the United States armed forces, 
alleging that Dow had supplied the United States with "various types of chemical, biological, bacteriological, 
incendiary and asphyxiatory weapons" and asking that it be designated a "war criminal." St. Louis 
Post-Dispatch, Feb. 3, 1970, p. 2A, col. 4. There is a certain resemblance to The Zyklon B Case, 1 L. Rep. 
Tr. War Crim. 93. 

122. ICRC, Reaffirmation 61-62, A/7720, paras. 198-99. 

123. ICRC, Reaffirmation 62-63; Brownlie, note 88 supra, at 150. The U.S. Army Field Manual 27-10, 
The Law of Land Warfare (1956) states (at para. 18) that while its use is not violative of international law, it 
should not be employed in such a way as to cause unnecessary suffering. 

124. A/7720, para. 200. See also Sidel, note 120 supra. 

125. Galston, "Defoliants," in Rose, CBW 62; UN, CB Weapons, para. 311. The scientific problem is 
not far removed from the current problem in the United States arising out of the use of DDT and other 
pesticides. 

126. Nor has it been satisfactorily established that defoliants will not in time adversely affect human health. 

127. ". . . The tremendous capabilities of modern weapons of mass destruction, however, make the 
objective of their effectively sanctioned abolition much more urgent than was weapons abolition at the time 
of the Hague Conference." 

Mallison, "The Laws of War and the Juridical Control of Weapons of Mass Destruction in General and 
Limited Wars," 36 Geo. Wash. L. Rev. 308, 321 (1967). 

128. UN, CB Weapons, para. 375; ICRC, Reaffirmation 57; Meselson, note 101 supra, at 169. See also 
the U Thant statement, note 85 supra; and Mallison, note 127 supra at 324. 

129. Malek, "Biological Weapons," in Rose, CBW 48, 56; Humphrey, "Ethical Problems: Preventing 
CBW," ibid., at 157, 159. The Stockholm International Peace Research Institute is currently engaged in a 
project to determine "whether it is technically possible to discover production of biological agents on a scale 
of military relevance." 

130. Revised Draft Convention for the Prohibition of Biological Methods of Warfare," A/7720, at 87 of 
the original United Nations document; N.Y. Times, Nov. 26, 1969, p. 16, col. 5. 

131. Memorandum presented to the British War Cabinet on August 17, 1917. Quoted in "Air Power," 
1 Enc. Brit. 449, 450 (1970). 

132. The possible use of nuclear weapons, whether delivered by ballistic missiles or by bombers, merely 
emphasizes the gravity of the problem under discussion. 

133. Lauterpacht, note 13 supra, at 365-66. 

134. See note 4 supra. 

135. Regulations attached to the Fourth Hague Convention of 1907, note 9 supra. 

136. Stone, note 1 supra, 621, footnote 91. 

137. Ninth Hague Convention of 1907 Concerning Bombardment by Naval Forces in Time of War, 36 
Stat. 2351; 2 Am. J. Int'l L. Supp. 146 (1908). 

138. Tracer bullets were used, apparently without objection from either side, despite the 1868 Declaration 
of St. Petersburg (note 90 supra) which outlawed explosive and incendiary projectiles. Apparently it is generally 
accepted that this prohibition does not apply to aircraft. See Article 18 of the Hague Air Rules, note 140 infra. 

139. Spaight, note 100 supra, at 41-42 and 244-50. The disillusioned will say that successful weapons are 
never outlawed and seldom restricted in their use. 

140. 17 Am. J. Int'l L. Supp. 245 (1923); 32 Am. J. Int'l L. Supp. 12 (1938); Greenspan, The Modern 
Law of Land Warfare 650 (1959). These Rules were drafted by an eminent Commission of Jurists convened 
by resolution of the Conference at which the Treaty of Washington, note 95 supra, was drafted. 

141. Quoted in Spaight, note 100 supra, at 257. These limitations on air bombardment were included in 
a resolution adopted by the Assembly of the League of Nations on September 28, 1938. Ibid., at 258. 

142. Actually, the Germans had already bombed Warsaw, obliterating much of it. 

143. Pictet, note 13 supra, at 30. After the Germans had disregarded the principles of the military objective 
and of the protection of the civilian population in Norway, the Netherlands, and Belgium in April-May 1940, 
the British announced that they reserved to themselves "the right to take any action which they consider 
appropriate in the event of the bombing by the enemy of civilian populations." Spaight, note 100 supra, at 
264-266. 

144. Pictet, note 13 supra at 30. 

145. Lauterpacht, note 13 supra, at 366, footnote 1. Of course, in a somewhat parallel situation, where 
both sides had followed substantially the same course of conduct, unrestricted submarine warfare, the 
International Military Tribunal refused to assess any punishment on this score against German Admiral Doentiz. 

146. Spaight, note 100 supra, at 277. And he does not stand alone. Pictet, note 13 supra, at 39. 



1 62 Levie on the Law of War 

147. The former use of the term "undefended"as a basis for determining that an area is not subject to 
attack appears to have lost significance — and properly so. 

148. Lauterpacht, note 13 supra, at 364. 

149. A/7720, para. 131. 

150. ICRC, Reaffirmation 39; Spaight, note 100 supra, at 43-44 and 47. 

151. Lauterpacht, note 13 supra, at 369. See also Pictet, note 13 supra, at 38; and "Nigeria/Biafra: Armed 
Conflict with a Vengeance," note 64 supra, at 10-11. The Report, A/7720, para. 144, points out that terror 
bombing "is more frequently than not counterproductive." 

152. See Spaight, note 100 supra, at 43. 

153. A/7720, para. 140-141. Of course, for propaganda purposes, even if every bomb dropped by an 
attacking airplane landed in the middle of a tank park, the enemy will mention only the deaths of a woman 
and her two children — who had had the misfortune to pick that time to hawk botded pop to the tank crews. 

154. Spaight, note 100 supra, at 47. Other apt quotations from this authoritative, but frequendy 
controversial, work are (at 43): 

"The position was that, for the first time, belligerents had at their disposal an instrument enabling them 
to strike not only at the user of armaments but at the makers of armaments. The possession of such an 
instrument had the effect of calling in question the hitherto accepted distinction between armed forces 
and civilians, between combatants and noncombatants. ..." 

"It was a praiseworthy principle in the circumstances of the pre-air age of war, but it was not one 
which could survive the arrival of the bombing aircraft. For, objectively considered, it was not a logical 
principle. ..." 

155. Ibid. 254,270,271. 

156. Meyrowitz "Reflections on the Centenary of the Declaration of St. Petersburg," 8 Int'l Rev. Red 
Cross 611, 620-21 (1968). 

157. A/7720, para. 143. 

158. Unfortunately, as stated by one author, "(i)t is far easier to moralize about air attacks on civilians, 
and to offer soothing verbal solutions, and to dismiss target area bombing as probably unlawful, than to frame 
rules for mitigation of human suffering with some hope of belligerent observance amid the realities of war." 
Stone, note 1 supra, at 627. 

159. A/7720, paras. 145-150. 

160. Note 25 supra. 

161. Note 26 supra. 

162. ICRC, Reaffirmation 73. 

163. Based on Article 6 of the ICRC Draft Rules and Article 22 of the Hague Air Rules. 

164. Based on Article 10 of the ICRC Draft Rules. 

165. Based on one of the ICRC principles. 

166. Based on one of the ICRC principles. 

167. Based on Article 7 of the ICRC Draft Rules and on a proposal of the Institut de Droit International. 



Some Major Inadequacies in the Existing Law Relating to the 
Protection of Individuals During Armed Conflict 

Addendum 

This Working Paper for the 14th Hammarskjold Forum conducted by the 
Association of the Bar of the City of New York was written in 1970. Since that 
time there has been no change in the status of the first problem mentioned, the 
absence of "a method for the automatic determination that a particular State 
relationship requires the application of the law of armed conflict." Article 1 of 
the 1907 Convention (II) Relative to the Opening of Hostilities requires a "previous 
and explicit warning, in the form either of a declaration of war, giving reasons, 



Major Inadequacies 163 

or an ultimatum with conditional declaration of war." This provision has become 
a nullity. Article 2 of the four 1949 Geneva Conventions for the Protection of War 
Victims provides that these Conventions become applicable "in all cases of 
declared war or of any other armed conflict which may arise between two or 
more of the High Contracting Parties, even if the state of war is not recognized 
by one of them." The lack of value of this provision was demonstrated during 
the hostilities in Vietnam where the North Vietnamese disregarded it by merely 
asserting that all captured American personnel were war criminals captured in 
flagrante delicto. There have been innumerable international armed conflicts since 
1970 but in not one instance has there been a formal declaration of war or any 
other affirmative action indicating that the international law of war was deemed 
applicable. The last known compliance with the cited provision was when the 
Soviet Union declared war on Japan on 8 August 1945 during World War II. 

The second item discussed was "the need for a method which will ensure the 
presence in the territory of each State party to an armed conflict of a Protecting 
Power or an international body with adequate authority to police compliance 
with that law." The international community had an opportunity to correct this 
defect but failed miserably, The Diplomatic Conference which met in Geneva 
from 1974 to 1977 before completing the 1977 Protocol Additional to the Geneva 
Conventions of 8 August 1949, and Relating to the Protection of Victims of International 
Armed Conflicts (Protocol I) drafted provisions (Article 5 thereof) which once again 
mean that there will usually be no Protecting Power and no substitute for a 
Protecting Power. (The United States has not as yet ratified that Protocol.) In the 
conflict in Korea there were no Protecting Powers. The International 
Committee of the Red Cross (ICRC) offered its services to both sides. The 
United Nations Command (UNC) accepted the offer and the ICRC made over 
100 inspections of UNC prisoner of war facilities. The North Koreans and the 
Chinese Communists never even deigned to answer the ICRC's offers. There 
is nothing in the 1977 Protocol I which, will change that situation as every action 
is dependent upon the willingness of the Party to the conflict. Thus, if the system 
for designating a Protecting Power fails, as it probably will, a sort of lottery 
system may be instituted, but its value is dubious; and the ICRC may offer its 
services as a substitute, but the functioning of the ICRC as such a substitute "is 
subject to the consent of the Parties to the conflict" — a consent which countries 
like North Korea and the People's Republic of China, and a number of other 
nations, will not give. 

The third item discussed was "the need for a complete and total prohibition 
of the use in armed conflict of any and all categories of chemical and biological 
weapons." An addendum to the article entided Nuclear, Chemical and Biological 
Weapons in this collection updates the subject. 



1 64 Levie on the Law of War 

The final item discussed in that paper was "the need for a complete code 
governing the use of air power in armed conflict with emphasis on the outright 
prohibition of any type of bombing which has as its basic target the civilian 
population." Some progress has been made in this area. Article 51(2) of the 1977 
Additional Protocol /prohibits making the civilian population the object of attack, 
Articles 54(2) and 56 thereof contain provisions aimed at protecting the civilian 
population from attack. Article 2(1) of the Protocol on Prohibitions or Restrictions 
on the Use if Incendiary Weapons (Protocol HI to the 1980 Convention on Prohibitions 
or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to 
be Excessively Injurious or to have Indiscriminate Effects) specifically prohibits attacks 
on the civilian population by incendiary weapons; and Article 2(2) thereof 
prohibits attacks on a military objective located within a concentration of 
civilians by air delivered incendiary weapons. (The United States has not as yet 
ratified this Protocol, although it has ratified the. convention and Protocols I and 
II thereof.) 






VII 

Civilian Sanctuaries: An Impractical Proposal 

1 Israel Year Book of Human Rights 335 (1971) 



Certainly, one should always take a positive stance with respect to any 
practical and workable proposal aimed at increasing the protections 
afforded the civilian population in time of armed conflict. Despite that premise, 
which is basic to any consideration of the law of armed conflict, or perhaps 
because of the restrictive adjectives "practical and workable" which have been, 
and must be, used, it appears necessary to cast a negative vote with respect to a 
well-intentioned, but impractical, proposal first made by the Secretary-General 
of the United Nations in 1969 and greatly elaborated upon by him in 1970. 

On December 19, 1968, by Resolution 2444 (XXIII), the General Assembly 
of the United Nations requested the Secretary-General to study and prepare a 
report on the subject of "Respect for Human Rights in Armed Conflict." He 
did so, his staff producing A/7720, November 20, 1969 (hereinafter referred to 
as the "1969 Report"). On December 16, 1969, by Resolution 2597 (XXIV), 
the General Assembly requested the Secretary-General to continue his study and 
to submit a further report on the same subject. Once again he did so, his staff 
producing A/8052, September 18, 1970 (hereinafter referred to as the "1970 
Report"). 

In the 1969 Report eight paragraphs (145-52) were devoted to the subject 
of "civilian refuges or sanctuaries." In March, 1970, during the course of a Panel 
which included the United Nations official actually responsible for the 
preparation of that Report — the Director of Human Rights Division of the 
United Nations Secretariat, the present writer, in passing, questioned the 
practicality of the proposal for large-scale civilian sanctuaries. This adverse 
comment, which really did not rise to the category of criticism, may well have 
inadvertently contributed to the fact that the 1970 Report expanded the 
coverage on the subject from eight to forty-three paragraphs (45-87). It is the 
purpose of this paper to demonstrate the impracticality of the proposal for such 
civilian sanctuaries and the actual lack of need for such a device if there is 
compliance with already well-established norms of the law of armed conflict, 
perhaps amplified in the light of currendy available and foreseeable methods of 
conducting such conflict. 



1 66 Levie on the Law of War 

Some discussion in depth of the proposal contained in the two Reports is 
essential for an understanding of the problem. The basic proposal was originally 
advanced in the following language: 

The difficulties which are attendant on arriving at a practically useful definition 
of what constitutes a legitimate military objective have led to the consideration 
of other solutions which might effectively increase the protection afforded to 
civilians in armed conflicts. One method might be to gather and place under 
shelter as large a part of the civilian population as possible, especially women, 
children, the elderly, the sick and those who do not participate in the armed 
conflict, nor contribute in any way to the pursuit of military operations. This 
might be achieved by adopting and developing, on a larger scale than provided at 
present, a system of safety zones which would offer special protection and even 
immunity from attack. 

The purpose of the proposal for large-scale civilian sanctuaries was 
subsequendy more clearly drawn when the 1970 Report stated: 

The civilian sanctuaries would therefore be established to draw the attention 
of the belligerents to the presence in a given area of persons whom they are already 
obligated to respect, protect or refrain from injuring. In effect, refuges or 
sanctuaries might assist in facilitating the observance by the belligerents of the 
obligations incumbent upon them. 

Both of the Reports recognized the need for numerous safeguards in order 
to ensure the successful operation of the civilian sanctuaries and to prevent their 
misuse. These safeguards were gathered together into the following four 
propositions: 

1 . The necessity for the designation and recognition of civilian sanctuaries in 

4 
peacetime before hostilities have aroused animosity and suspicion; 

5 

2. Restrictions on the selection and use of such sanctuaries; 

3. Special identification markings for the sanctuaries and the personnel serving 
in them; and 

4. A system of control and verification. 

It appears to the present writer that the mere enumeration of these few 
requirements, which is far from exhaustive, demonstrates the lack of feasibility 
of the proposal. 



Civilian Sanctuaries 167 

The idea of civilian sanctuaries did not emerge full-blown from the 

8 • 
Secretary-General's brow. It is not even the application of existing ideas and 

norms to a totally new concept. It is merely the elaboration and extension of an 

existing system of protection, which was designed for comparatively small groups 

of individuals and for comparatively small areas of real estate, to potentially very 

large segments of the population and potentially enormous portions of the land 

mass of a belligerent nation. As the 1969 Report points out, the doctrine of 

the "open city," which has been elsewhere defined as "an undefended city, open 

10 
to occupation by enemy forces without harm to the inhabitants," originated 

in the customary law of war and was codified in the Fourth Hague Convention 

11 
of 1907. Thus, the entry of the Germans into Paris in June, 1940, during 

World War II, has been termed "a classical example of the application of the 

12 
[1907] Hague Rules of Land Warfare." During that same War, the "open 

city" doctrine failed to provide protection to the civilian populations in the cases 

• 13 

of Belgrade, Zagreb, and Ljubliana in 1941 and in the case of Rome in 1943. 

Three very small neutralized zones were apparendy established in Jerusalem in 

1948, but these probably did not result from an application of the "open city" 

doctrine. 

Elaborating on earlier Geneva Conventions, each of the four 1949 

Conventions provides for protected areas of one character or another: hospital 

zones; prisoner of war camps; neutralized zones; and internment camps. 

19 
The 1954 Hague Convention contains provisions setting up an elaborate 

system for the protection of areas containing cultural monuments. And, finally, 

the so-called Draft Rules disseminated by the International Committee of the 

Red Cross in 1956 have a number of provisions on the subject of sanctuaries. 

In summary, various types of protected zones for different categories of 

noncombatants, emerging from the "open city" doctrine, have existed for a 

considerable period of time. All of these protected zones have been restricted 

to comparatively small land areas, perhaps a few thousand square yards or meters, 

at most a few square miles or kilometers, intended to afford protection to a city 

and its civilian population, to a hospital, its patients, and staff, to a prisoner of 

war or internment camp and its inmates, to a museum and its attendants. The 

Secretary-General's proposal would greatly enlarge this concept. It proposes 

protected zones on a grand scale: not thousands of square yards or meters, but 

thousands and hundreds of thousands of square miles or kilometers; not the 

noncombatant personnel of a hospital, or of an internment camp, or of a 

museum, or even of a city, but a very large part of the population of the nations 

engaged in hostilities. Laudable and idealistic as the proposal obviously is, it 

unfortunately appears to be completely impractical in the world in which we 

live. 



1 68 Levie on the Law of War 

The problems involved in obtaining acceptance of and in implementing the 

proposal appear to this writer to be insurmountable. Can anyone believe that 

today's nations and their governments could reach agreement, even in 

peacetime, either on a bilateral or on a multilateral basis, exempting large 

portions of their respective territories from all types of attack in the event of 

22 
war? Can anyone believe that such nations would remove from, and prohibit 

the subsequent introduction into, the zones so designated of every type of 

industry and activity which could in any way contribute to a war effort? Can 

anyone believe that in this age of nuclear weapons and "quick" wars, a nation 

would, at the outset of hostilities, be in a position to devote the necessary energy, 

manpower, and equipment to the task of moving millions of its civilians into 

the neutralized zones? Can anyone believe that nations at war would be in a 

position to devote the necessary energy, manpower, and equipment to the task 

of providing logistic support for millions of its citizens who would necessarily 

be nonproductive insofar as the war effort is concerned? Can anyone believe 

that, human nature being what it is, the worker who stays on his job in support 

of the war effort can be successfully separated from his wife and children? Can 

anyone believe that any nation at war will voluntarily and actually deprive itself 

of an urgendy needed resource by moving into a neutralized zone a great mass 

27 
of potential labor, even though it be women, children, and the elderly? Can 

anyone believe that today's nations will accept "a system of control and 

verification" in the persons of foreign observers stationed within their territory 

in time of war? Can anyone believe that the huge areas involved, the 

impossibility of really effective control and verification, and the pressures of 

wartime requirements, would not result in massive evasions of the restrictions 

and improper usage of the neutralized zones? Can anyone believe that the 

nations of today would accept any such proposal without an escape clause such 

as the "imperative military necessity" clause of the 1949 Geneva Conventions? 

Can anyone believe that a nuclear nation, envisioning the eventuality of defeat, 

would not use the neutralized zones as a basis for blackmail? These are but a few 

of the many questions raised by the Secretary-General's proposal, to each and 

every one of which this writer would give a negative answer. 

Is there an alternative to the Secretary-General's proposal for large-scale 

civilian sanctuaries for the protection of the civilian population? There most 

certainly is, and it is not only more feasible, but it is much more likely to be 

acceptable to the community of nations. That alternative is as follows: 

First, full-scale application of and compliance with the already existing 
restrictions on allowable military objectives, modernized as necessary to meet 
present-day requirements. What is needed is not new norms, but compliance 
with existing norms. For example, target-area bombing certainly violated the 






Civilian Sanctuaries 169 

principle of the military objective, but it was used by both sides so generally 
during World War II that the principle practically ceased to exist. It must be 
revived. Again, and perhaps somewhat peripherally, the Protecting Power is 
already available to do all that the Secretary-General would have a 
Commissioner-General or Observer-General do during time of actual 
hostilities — but in not one of the scores of hostilities which have occurred since 
the end of World War II has this extremely valuable international institution 
been called into action. 

Second, the law of air warfare, if any now exists, should be elaborated upon 

31 
and codified The extreme reluctance of nations to establish recognized and 

accepted international rules in this very vital area is really incredible. For 

example, all governments express horror at the mere suggestion that any other 

nation, then engaged in hostilities, has resorted to "terror bombing" — the 

bombing of nonmilitary objectives and of the civilian population in order to 

destroy enemy morale and to bring an adversary to its knees on the home front 

when it has not been possible to do so on the battlefront. The 1923 Hague Rules 

32 
of Air Warfare and the ICRC's 1956 Draft Rules specifically proposed such 

33 
a prohibition, but many years later that proposal is still in limbo. Here, too, 

World War II practices have, unfortunately, probably negated the principle of 

the military objective. 

Third, the initiation of some system of effective sanctions against belligerents 
who violate the principle of the rnilitary objective. Such a system of sanctions 

has been drafted and accepted with respect to individual violators of the 1949 

34 
Geneva Conventions. There is no reason why some such system cannot be 

devised for nation violators as well as individual violators of the principle of the 

military objective, once that principle has been resurrected. 

In summary, it is suggested that the existing law of armed conflict, elaborated 

as may be necessary, particularly in the area of air warfare, if complied with (and 

with additional methods to be established for enforcing compliance), can provide 

the civilian population with the protection which it requires and to which it is 

already entitled under existing norms; and that it can do this much more readily 

than can the elaborate and impractical proposal advanced by the 

Secretary-General of the United Nations in his 1969 and 1970 Reports on 

35 
"Respect for Human Rights in Armed Conflict." 

Notes 

1 . Levie, "Some Major Inadequacies in the Existing Law Relating to the Protection oflndividuals during 
Armed Conflict," Working Paper for the Fourteenth Hammarskjold Forum, When Battle Rages, How Can Law 



1 70 Levie on the Law of War 

Protect? (Carey ed. 1 97 1 ). The present writer's comments concerning the proposal are contained in the Working 
Paper (at page 27) and in the comments (at page 70). 

2. Para. 145 of the 1969 Report. As already mentioned in the text, and as will be enlarged upon later 
in this paper, the writer considers that the difficulty is not in defining legitimate military objectives, but in 
securing compliance with existing prohibitions against attacks on what would generally be conceded (except, 
of course, by the attacker) to be nonmilitary objectives. Lists of legitimate military objectives, such as those 
contained in Hague Convention No. IX of 1907, art. 2, 2 Am. J. Int'l L. 146 (Suppl. 1908), could easily be 
brought up-to-date by a list such as that contained in the Draft Rules for the Limitation of the Dangers Incurred 
by the Civilian Population in Time of War (hereinafter referred to as Draft Rules), which were disseminated 
by the International Committee of the Red Cross (ICRC) in 1956. 

3. Pa r a. 56 of the 1970 Report. It has been suggested that civilian sanctuaries may actually be defined 
affirmatively (the identification of those areas which are free from attack) or negatively (the identification of 
those areas which are subject to attack, all nonlisted areas being protected). Stillman, "Civilian Sanctuary and 
Target Avoidance Policy in Thermonuclear War," 392 The Annals 116, 121-22 (1970). This is really but 
another way of stating the proposition set out in the preceding note. 

4. Para. 149 of the 1969 Report; para. 53 of the 1970 Report. 

5. Para. 150 of the 1969 Report; paras. 55 and 58 of the 1970 Report. 

6. Para. 151 of the 1969 Report; para. 71 of the 1970 Report. This is not really a safeguard in the same 
sense as the others. 

7. Para. 152 of the 1969 Report; paras. 80 and 82 of the 1970 Report. 

8. Nor from the brow of the Director of the Human Rights Division! 

9. Para. 146. 

10. Stillman, op. cit. supra note 3, at 117. 

11. Regulations Attached to the Hague Convention No. IV of 1907, art. 25, 2 Am. J. Int'l L. 90, 97 
(Supp. 1908). 

12. Stillman, op. cit. supra note 3, at 118. 

13. Ibid. For some reason the author omits any reference to the declaration of Manila as an open city in 
1942. 

14. Desmet, Les lieux de refuge comme moyen de protection des populations civiles contre les bombardements aeriens 
4 (unpublished ms., 1961). Similarly on at least two occasions prior to World War II arrangements were made 
restricting attacks against specific portions of urban areas: the northeast quarter of Madrid in November 1936 
and the "Jacquimot Zone" in Shanghai in August 1937. Id. at 3-4. Castren, The Present Law of War and Neutrality 
176-77 (1954). 

15. 1949 Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the 
Field, art. 23 and Annex I, 75 U.N.T.S. 31; 1949 Geneva Convention for the Amelioration of the Condition 
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 23, 75 U.N.T.S. 85; and 1949 
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 14 and Annex I, 50 
Am. J. Int'l L. 724 (Suppl. 1956). 

16. 1949 Geneva Convention Relative to the Treatment of Prisoners of War, art. 23, 47 Am. ]. Int'l L. 
119 (Suppl. 1953). 

17. Art. 15, Civilians Convention, op. cit. supra note 15. 

18. Art. 83, Civilians Convention, op. cit. supra note 15. 

19. 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 
249 U.N.T.S. 240. This Convention and art. 15, Civilians Convention, supra note 15, supplied most of the 
ideas which are included in the Secretary-General's proposal. Understandably, the Report was compelled to 
concede the existence of substantial differences between the protection of cultural property and the protection 
of the civilian population. See para. 79 of the 1970 Report. 

20. Op cit. supra note 2. 

21. In its para. 54, the 1970 Report admits that, desirable as it would be to shelter all "those civilians 
taking no part in the hostilities and in no way contributing to the war effort," as a practical matter this would 
be impossible "due to limitation of accomodation and other circumstances." 

22. Para. 150 of the Report points out that "the demarcation of certain territories as safety zones should 
not entail any military benefits, direct or indirect, for any of the parties to the conflict." It is difficult to conceive 
of any demarcation of protected territory which a putative enemy would not consider benefit-giving to its 
disadvantage. 

23. To say the least, any such effort would result in a complete dislocation of the normal civilian economy. 

24. Para. 150 of the 1969 Report would compound this problem as it states that "the safety zones . . . 
would not be centres of important means of communication or transport." 

25. The comment contained in the previous note is equally applicable here. 






Civilian Sanctuaries 171 

26. Experience during World War II in such countries as the United Kingdom demonstrated the difficulty 
inherent in attempting to separate families. 

27. In modern warfare labor is almost as essential as armaments; and every individual, male or female, 
young or old, capable of aiding in the overall productive effort is an asset whose productivity will be demanded 
and required by the warring nation. 

28. Para. 82 of the 1970 Report refers to "the inspectors and experts with . . . immunity and access to 
the area concerned, . . . the right of communication, including the use of a special code whenever 
necessary ..." In the light of the conspicuous lack of success encountered during the past two decades in 
attempting to negotiate even the simplest means of on-the-ground verification during peacetime, this proposal 
appears to be particularly naive and unrealistic. The frequent inability of the ICRC to function (North Korea 
and North Vietnam are but two pertinent examples) is an index of what could be expected if, indeed, such a 
provision could be successfully negotiated. 

29. In an area of hundreds or thousands of square miles, it would certainly not be too difficult to establish 
many covert facilities which would actually produce war materials, entirely apart from the fact that many such 
items have valid nonmilitary uses. And who is to say that a civilian school for, say, garage mechanics is not 
producing trained personnel for the military forces? 

30. Each of the 1949 Geneva Conventions, op. tit. supra notes 15 and 16, contains common Art. 8 which 
provides, in part: 

. . . They [the representatives of the Protecting Power] shall, in particular, take account of the 
imperative necessities of security of the State wherein they carry out their duties. Their activities shall 
only be restricted as an exceptional and temporary measure when this is rendered necessary by 
imperative military necessities. 
A similar restriction also appears in other provisions of these Conventions. The 1954 Hague Cultural 
Convention, op. tit. supra note 19, refers, in art. 11(2), to "exceptional cases of unavoidable military necessity." 

31. On this subject, see the thought-provoking article of DeSaussure, "The Laws of Air Warfare: Are 
There Any?" 23 Naval War College Rev., No. 6, at 35 (1971); reprinted in 5 The International Lawyer 529 
(1971). See also Levie, op. tit. supra note 1, at 21-29. 

32. 17 Am. J. Int'l L. 245 (Suppl. 1923); 32 id. 12 (1938); Greenspan, The Modern Law of Land Warfare 
650 (1959). 

33. Art. 6, Draft Rules, op. tit. supra note 2. 

34. Arts. 49, 50, 129, 146, 1949 Geneva Conventions, op. tit. supra notes 15 and 16. 

35. The present writer is not alone in doubting the wisdom and practicality of civilian sanctuaries as 
proposed by the Secretary-General. See, for example, Stillman, op. tit. supra note 3, at 117, 121, and 123; 
Bindschedler-Robert, "A Reconsideration of the Law of Armed Conflict," The Law of Armed Conflict 20-21 
(Carnegie End., 1971); and Rubin, "Informal Summary of Personal Reactions to U.N. Doc. A/8052" (ms., 
Am. Soc. Int'l L., 1971). In the discussion following the presentation of this paper at the Symposium, Colonel 
Draper indicated that the proposal had met with a rather tepid reception at the ICRC's Conference of 
Government Experts held in Geneva in May— June, 1971. 



VIII 

International Law Aspects of Repatriation of 
Prisoners of War During Hostilities: A Reply 

67 American Journal of International Law 693 (1973)* 



I 

In the July 1973 issue of the Journal, there appeared an article with the above 
title written by Professor Richard Falk, in which he, in effect, advanced the 
thesis that the release of prisoners of war for repatriation during the course of 
hostilities in Vietnam to an ad hoc and self-styled "humanitarian organization" 
(which admittedly consisted solely of individuals who were vocal opponents of 
the United States participation in those hostilities) either constituted a valid and 
forward-looking interpretation of the provisions of the Geneva Convention of 
1949 relative to the Treatment of Prisoners of War (hereinafter referred to as 
"the 1949 Convention") or indicated the need for revision of that instrument. 
The subject appears to be one which calls for an analysis in considerably greater 
depth than the treatment provided in the article by Professor Falk. 

In this article, I shall discuss, independently of the facts alleged and the 
arguments advanced in the article by Professor Falk, the legal aspects involved 
in (1) the release and repatriation during the course of hostilities of prisoners of 
war who do not come within the mandatory provisions of Article 109 et seq. of 
the 1949 Convention (in other words, those who are not so "seriously 
wounded" or so "seriously sick" as to be entided to release and repatriation as 
a matter of right); and (2) the use of an "impartial humanitarian organization" 
to accomplish this purpose. Thereafter, I shall point out some of the areas in 
which I agree or disagree with the proponent of this procedure. 

II 

Historically, there have been three major methods employed by Detaining 
Powers for the release and repatriation during the course of hostilities of 
able-bodied prisoners of war — ransom, exchange, and parole. The ransom of 
captured military personnel, which reached its peak in its application to chivalry 

* Reprinted in THE VIETNAM WAR AND INTERNATIONAL LAW 340 (Richard Falk 
ed., 1976). 



1 74 Levie on the Law of War 

in medieval times, had, for all practical purposes, disappeared by the end of the 
seventeenth century. It was replaced by exchange when continental armies 
became national and professional and when obtaining the release of captured 
military personnel became accepted as the responsibility of the sovereign. 
Exchange was man-for-man and grade-for-grade (with tables of "equivalent 
values") so that, at least in theory, it would not result in any change in the relative 

A 

military strengths of the two sides. Exchange still existed as late as the American 
Civil War, but it ceased to be a really effective procedure during that conflict. 

Parole is the third method of effectuating the release and repatriation of 
prisoners of war during the course of hostilities. Under this procedure, the 
prisoner of war agrees to certain conditions that will govern his conduct upon 
his release from a confined status. It has proven relatively unimportant as a 
method of procuring the release and repatriation of prisoners of war during the 
course of a conflict. Historically, it developed primarily into a method of 
permitting the prisoner of war more freedom within the territory of the 
Detaining Power, rather than of procuring his release and repatriation. 
Moreover, Article 21(2) of the 1949 Convention, like its predecessors, 
specifically contemplates that Powers of Origin may prohibit their captured 
military personnel from giving or accepting parole; a number of countries, 
including the United States, the United Kingdom, and France, have traditionally 
restricted the right of their military personnel to give or accept parole. 

Article 72 of the Geneva Convention of 1929 Relative to the Treatment of 

8 
Prisoners of War (hereinafter referred to as "the 1929 Convention") suggested 

the possibility of agreements between belligerents for the repatriation during 

hostilities of "able-bodied prisoners of war who have undergone a long period 

of captivity." A similar but somewhat more extensive provision was included 

in the 1949 Convention. Article 109(2) provides that the Parties may "conclude 

agreements with a view to the direct repatriation or internment in a neutral 

country of able-bodied prisoners of war who have undergone a long period of 

captivity." This provision may be considered as an attempt to encourage the 

belligerents to adopt one of these procedures (and to give neutral states and 

others a basis for proposing them), rather than as a legal authorization to do so, 

inasmuch as no such authorization was needed in order to enable belligerents 

lawfully to enter into such agreements. Article 6(1) of the 1949 Convention 

specifically contemplates the conclusion of special agreements by the Parties 

concerning prisoner-of-war matters, subject only to the limitations that any such 

agreement may not "adversely affect" the prisoners of war to whom it purports 

to apply and that it may not "restrict the rights" elsewhere conferred upon them 

by the Convention. Paragraph 2 of the same article contemplates that a Party 

may unilaterally give prisoners of war more favorable treatment than is required 

by the 1949 Convention itself. Certainly, an agreement for the repatriation of 



Aspects of Repatriation 1 75 

longtime, able-bodied prisoners of war during the course of hostilities would 
not fall within the ambit of either of the limitations mentioned above; and it 
would in any event be more favorable treatment than required by the 1949 
Convention. Moreover, the Detaining Power could justifiably assert that 
individuals so repatriated would be barred from further participation in the 
hostilities against it. 

Unfortunately, despite the fact that World War II saw many prisoners of war 

held in captivity for periods in excess of five years, apparently no belligerent 

13 
sought to implement Article 72 of the 1929 Convention. And in none of the 

many armed conflicts which have occurred since the end of World War II (and 

since the 1949 Convention became effective) has there been an agreement for 

the repatriation of able-bodied prisoners of war prior to the cessation of 

hostilities. However, it is not really difficult to understand why neither of the 

substantially similar provisions of the two Prisoner-of-War Conventions has ever 

been implemented by belligerents. Any bilateral agreement providing for the 

repatriation during hostilities of able-bodied prisoners of war would merely be 

a new name for the old procedure of exchange, a procedure which fell into 

disuse because, despite its man-for-man and grade-for-grade aspects, it inevitably 

turned out to be more advantageous for one side than for the other. Indeed, 

this same factor has even militated against the repatriation during the course of 

hostilities of seriously wounded or sick prisoners of war. 

It being accepted that releases and repatriations during the course of hostilities 
of longtime, able-bodied prisoners of war are within the contemplation of 
existing international law, despite the failure of any belligerent state to do so as 
a matter of practice, let us move to the next problem. What are the qualifications 
required of a body for it to fall within the category of organizations empowered 
to perform the humanitarian functions which the 1949 Convention authorizes 
for the benefit of prisoners of war? 

Article 8 of the 1949 Convention is the basic article establishing the Protecting 
Power with its manifold humanitarian and other functions. However, Article 
9 of that Convention specifically provides that humanitarian activities for the 
benefit of prisoners of war may also be performed by the International 
Committee of the Red Cross (the ICRC) or by "any other impartial 
humanitarian organization." The organization and operations of the ICRC are 
widely known and have received well-merited recognition throughout the 1949 
Convention. The precise nature of the organizations which fall within the 
meaning of the term "any other impartial humanitarian organization" is 
considerably less clear. 

Article 88 of the 1929 Convention, which was the direct progenitor of Article 
9 of the 1949 Convention, did not include the possibility of the intervention of 
any "humanitarian organization" other than the ICRC for the purpose of 



1 76 Levie on the Law of War 

furnishing assistance to prisoners of war. That possibility received recognition 
for the first time in a proposal made by the Italian representative during a meeting 

of a committee of the Diplomatic Conference which drafted the 1949 

19 
Convention. The Italian proposal to add the words "or any other impartial 

humanitarian body" after the reference to the ICRC in the original draft of the 

article received the strong support of the Director-General of the International 

Refugee Organization (IRO) who pointed out that, in view of the existing 

collaboration between governments and the IRO, "it would seem opportune 

to extend the provisions of Article 8 [now Article 9 of the 1949 Prisoner-of-War 

Convention], to enable governments to avail themselves of its services in case 

20 
of necessity.'" The proposal was adopted by the Joint Committee of the 

Diplomatic Conference after a debate in which the representative of the United 

States had supported the use for humanitarian purposes of "welfare organizations 

of a non-international character" and the Committee had rejected a Burmese 

proposal to narrow the Italian proposal to "any other internationally recognized 

21 
impartial humanitarian body."' It was approved at a Plenary Meeting of the 

Diplomatic Conference without debate. 

The foregoing is the substance of the travaux preparatoires concerning the 

addition of the words "or any other impartial humanitarian organization" to 

23 
Article 9 of the 1949 Convention. " In attempting to elucidate the precise 

meaning of these words, it is therefore necessary to look elsewhere for help. The 

ICRC's discussion of the matter in a 1960 publication is extremely helpful. 

The humanitarian activities authorized must be undertaken by the International 
Committee of the Red Cross or by any other impartial humanitarian organization. 
The International Committee is mentioned in two capacities — firsdy on its own 
account . . .; and secondly, as an example of what is meant by "impartial 
humanitarian organization. ..." 

The organization must be humanitarian; in other words it must be concerned with 
the condition of man, considered solely as a human being, regardless of his value 
as a military, political, professional or other unit. It must also be impartial. Article 
9 does not require it to be international.... Furthermore, the Convention does not 
require the organization to be neutral, but it is obvious that impartiality benefits 
gready from neutrality. 

In order to be authorized, the organization's activities must be purely humanitarian 
in character; that is to say they must be concerned with human beings as such, 
and must not be affected by any political or military consideration. Within those 

limits, any subsidiary activity which helps to implement the principles of the 

24 
Convention is not only authorized but desirable under Article 9. . . . 



Aspects of Repatriation 1 77 

There are, then, three basic requirements for an organization's qualifying as 
"any other impartial humanitarian organization" within the meaning of Article 
9 of the 1949 Convention: first, it must be impartial in its operations; second, it 

must be humanitarian in concept and function; and third, it must have some 

25 
institutional, operational, and functional resemblance to the ICRC. Negatively, 

it need not be international in creation and it need not be neutral in origin. 

What is meant by "impartial"? An "impartial" organization is one which, as 

an institution, is unbiased and unprejudiced, fair and equitable to both sides in 

its operations, one which neither by act nor by statement gives any indication 

that it prefers one side over the other. The mere fact of being established and 

27 
based in a neutral country does not of itself make an organization "impartial." 

Conversely, the mere fact of being established and based in a belligerent country 

does not necessarily indicate a lack of "impartiality." While, as a practical matter, 

it will undoubtedly be most difficult to identify an organization which is not 

"neutral" in location but which is accepted as "impartial," this is neither a 

paradox nor an impossibility. Such an organization will usually be one which 

operates exclusively in the territory of its own nation, preparing material 

assistance for dispatch through neutral relief channels, such as the ICRC, to the 

prisoners of war of its own nationality held by the enemy; and, more relevandy, 

it will be one which is permitted to and does provide material assistance to enemy 

prisoners of war held in the territory of its own nation. It is, however, almost 

inconceivable that an organization which is established and based in the territory 

of one belligerent will be permitted to function in the territory of an opposing 

belligerent, no matter how impartial and humanitarian its reputation and its 

operations. ' Wartime public opinion alone would be a sufflciendy powerful 

force to prevent an "enemy" organization from functioning freely in the territory 

of the other side — except under the most unusual circumstances. 

The meaning of the term "humanitarian" is considerably less controversial 
and its application presents far fewer problems. As stated by the ICRC in the 
excerpts quoted above, "humanitarian" denotes "concerned with the condition 
of man, considered solely as a human being." In the context of the prisoner of 
war, a "humanitarian organization" is one which has the objective of protecting 
and improving the welfare of the prisoner of war and the conditions under which 
he exists. Certainly, this is, and has long been, a major objective of the ICRC, 
and, as we have seen, the ICRC serves as a model for identifying the 
organizations which come within the meaning of Article 9 of the 1949 
Convention. 

Finally, the entity seeking to bring itself within that provision — or which one 
of the belligerents seeks to bring within that provision — must be an 
"organization" and as such it must have some institutional, operational, and 
functional resemblance to the ICRC. An individual does not qualify. A small, 



1 78 Levie on the Law of War 

ad hoc loose-knit group consisting of individuals who have joined together for 
a specific and limited purpose and which is obviously destined to have a limited 
life span does not qualify. There must be some institutional basis, some 

operational experience and tradition, which clearly establishes it as an 

32 
organization that is both impartial and humanitarian. An established religious 

organization could probably qualify institutionally even though it had not been 

previously engaged in prisoner-of-war welfare activities. A national Red Cross 

Society could probably qualify institutionally as could an organization which has 

operated in the field of relief from natural disasters. An international organization, 

7/X 

such as the United Nations or the Organization of American States, or an 

agency thereof, such as the UN High Commissioner for Refugees or the OAS 

Council, could probably qualify institutionally. The possibilities are almost 

limidess. 

One additional facet of the designation of "impartial humanitarian 

organizations" requires mention. Article 9 of the 1949 Convention makes the 

activities of the ICRC or of any other impartial humanitarian organization 

"subject to the consent of the Parties to the conflict concerned." In the debate 

on the proposed amendment to the draft article which contemplated the 

35 
activities of impartial humanitarian organizations other than the ICRC, the 

representative of France pointed out that "the activities of humanitarian bodies 

were always subordinated to approval by Parties to the conflict. "' The provision 

of the 1949 Convention has been interpreted, and properly so, as requiring the 

consent of all the Parties "upon which the possibility of carrying out the action 

37 
contemplated depends."' This is why it is inconceivable that even a universally 

recognized humanitarian organization, if established and based in the territory 

of one belligerent, would be able to function in the territory of the other. 

An organization obviously cannot function if it does not have the permission 
and approval of the sovereign of the territory in which it proposes to operate 
(normally, this would be the Detaining Power); it legally cannot, and certainly 
should not, function if it does not also have the permission and approval of the 
other sovereign concerned (normally, this would be the Power of Origin). 

To summarize: 

(1.) An adequate legal basis exists in international law for the release and 
repatriation of longtime, able-bodied prisoners of war during the course of 
hostilities (Article 109(2)). 

(2.) While the legal basis for such action contemplates a consensual 
arrangement, the 1949 Convention not only permits but encourages unilateral 
action which is more favorable to the prisoners of war than is required by the 
Convention itself (Article 6(2)). 

(3.) Bilateral release and repatriation of longtime, able-bodied prisoners of 
war during the course of hostilities, as provided in the 1949 Convention (Article 



Aspects of Repatriation 1 79 

109(2)), is actually a return to the historic procedure of exchange with the added 
limitation against the further use of the repatriated prisoners of war "on active 
military service" (Article 117). 

(4.) Either the International Committee of the Red Cross or "any other 
impartial humanitarian organization" may perform humanitarian activities for 
the welfare of prisoners of war provided that the appropriate Parties to the 
conflict give their consent (Article 9) . 

(5.) An "impartial humanitarian organization" within the meaning of Article 
9 of the 1949 Convention is one which is unbiased and unprejudiced, fair and 
equitable to both Parties concerned, one which neither by act nor by statement 
gives any indication that it prefers one side over the other; one which has the 
humanitarian objective of protecting and improving the welfare of the prisoners 
of war and the conditions under which they exist in their status as captives; and 
one which is truly an "organization," a status measured, in the final analysis, by 
its institutional, operational, and functional resemblance to the ICRC. 



From the foregoing general discussion of the legal aspects of the release and 
repartriation during hostilities of longtime, able-bodied prisoners of war through 
the intervention of humanitarian organizations, it is obvious that Professor Falk 
and I are in substantial agreement on the merit of such releases and repatriations 
from a humanitarian point of view. He suggests the need for "flexible" 
interpretation, or, alternatively, revision of the 1949 Convention in order to 
accomplish his basic purpose. This is unnecessary because the provisions of 
Article 109(2) of the 1949 Convention specifically cover exacdy the contingency 
with which he is concerned, thereby making "flexible"" interpretation or 
revision unnecessary. 

We part company completely when he attempts to enlarge the scope of the 
term "impartial humanitarian organization" so as to bring within its ambit a 
group such as the self-styled "Committee of Liaison with Families of Servicemen 
Detained in North Vietnam" (hereinafter referred to as the "Committee of 

Liaison") the members of which were far more concerned with anti-war 

43 
propaganda than with the welfare of prisoners of war. The Committee of 

Liaison was anything but "impartial"; it was more strongly motivated by political 

than by humanitarian considerations; and its existence as an "organization" 

within the meaning of the 1949 Convention was, at the very least, debatable. 

To put the matter in proper perspective, it will be helpful to summarize briefly 

the events which are the basis for the legal thesis with which we are dealing. 

The process really began in October-November 1967 when the Viet Cong 

released three captured American soldiers in Phnom Penh, Cambodia, to 

Thomas E. Hay den, an American identified by the press as being the 



1 80 Levie on the Law of War 

45 
representative of "anti-war groups" in the United States. * Then in February 

1968 the Democratic Republic of Vietnam (DRV) released three American 

pilots in Hanoi to the Rev. Daniel Berrigan and Howard Zinn, also identified 

by the press as representatives of "anti-war groups." Some months later, in 

July- August 1968, the DRV released three more American pilots in Hanoi, this 

time to Mrs. Robert Scheer, Vernon Grizzard, and Stuart Meacham, once again 

47 
identified by the press as representatives of "anti-war" groups. In August 1969 

the DRV released three American servicemen in Hanoi, this time to Rennard 

C. Davis and David Dellinger, who were identified as representing the "National 

Mobilization Committee to End the War in Vietnam." Finally, in September 

1972, there occurred the release of three American pilots in Hanoi to Mrs. Cora 

49 
Weiss, David Dellinger, Professor Falk et al. Thus, the DRV made the first 

release of three captured American servicemen in February 1968; the second in 

August 1968; the third in August 1969; and the fourth and last in October 1972. 

The first two of these releases were made to well-known anti-war individuals; 

the latter two were made to two different anti-war groups. Each was attended 

with great publicity over an extended period of time. Each involved the release 

of only a token number of prisoners of war. Each involved prisoners of war who 

could only have been selected for release for reasons other than their physical 

condition or length of confinement, the grounds mentioned in the 1949 

Convention for releases and repatriations during the course of hostilities. 

The cablegram sent by the "escort group" to the President of the United 

States from Hanoi (which was, perhaps not unexpectedly, immediately 

broadcast by Hanoi radio) displayed either remarkable presumption, remarkable 

52 
ignorance, or remarkable naivete. ' The four "guidelines" laid down for the 

benefit of the U. S. Government by the Committee of Liaison warrant individual 

comment, particularly in the light of the claim being advanced that the 

Committee of Liaison was an "impartial humanitarian organization." 

The first paragraph of the cablegram demanded that the three prisoners of 

war released by the DRV to the Committee of Liaison for repatriation to the 

United States "shall proceed home with us and representatives of their families 

in civilian aircraft." The DRV could have made a case for insisting upon the 

use of civilian aircraft up to the territorial limits of the United States; but that it 

would omit such a major requirement from its public statement, and then 

privately so advise the members of the escort groups seems, to say the least, rather 

odd. " On the other hand, if the use of civil aircraft and the designation of 

authorized fellow passengers was a condition asserted on the initiative of the 

escort group, the group demonstrated that it, and the Committee of Liaison 

which it represented, were anything but "impartial." Moreover, despite the 

obvious mental reservations displayed by members of the escort group, it is a 

universal rule of military law that upon his departure from the territory and 



Aspects of Repatriation 1 81 

control of the enemy (whether by release, escape, or any other method), a 
prisoner of war has the duty to report at once to the first available authorities of 
his country. Members of anti-war groups frequendy display a singular inability 
to recognize that the relationship between a member of the military service and 
the military authorities has evolved over the centuries as a result of the dictates 
of necessity and differs considerably from the relationship between a civilian and 
the civilian authorities. 

The second paragraph of the cablegram called for the granting of a 30-day 
"furlough" to the three prisoners of war being released and repatriated. How 
such a completely internal, administrative matter could possibly have been 
deemed to be within the purview of either the DRV or of an "impartial 
humanitarian organization" is exceedingly difficult to perceive. It was just 
about as much the business of either the DRV or the Committee of Liaison as 
it would have been to lay down a condition that the men were to receive 
automatic promotions or to be entitled to additional pay for the period during 
which they had been prisoners of war. The members of the escort group seem 
to have labored under the impression that their first contact (except for 
Dellinger) with the problem of returned prisoners of war offered a subtle 
occasion to educate the military services about the process of repatriation. They 
were apparendy unmindful of the fact that thousands of prisoners of war had 
been repatriated by the armed forces after World War II and the Korean War. 

The third paragraph of the cablegram demanded a "complete medical 
checkup at the hospital of their choice, civilian or military." Once again the 
Committee of Liaison pronounced itself on an internal, administrative matter 
in an area in which the military services have had far more experience than the 
members of the escort group. The members of the Committee again 
demonstrated an unwillingness to accept the fact that the three prisoners of war 
continued to be members of the military service, subject to military control and 
discipline, and were not just civilian members of the general public and 
"proteges" of the Committee of Liaison. Moreover, despite the demand for a 
medical checkup in a hospital made in the cablegram, the escort group later 
apparently realized that this would completely remove their "proteges" from 
their control and, as they approached the United States, their medical judgment 
changed. "[I]t was clear to the escort group . . . that there was no immediate 
need for medical surveillance."" However, once they were back in the United 
States they had to concede that "the pilots preferred, or at least were unwilling 
to contest, the Government's insistence on a medical checkup under military 
auspices." 

The fourth paragraph of the cablegram prescribed that the three men being 
repatriated "shall do nothing further to promote the American war effort in 
Indochina." As we have seen, Article 117 of the 1949 Convention contains an 



1 82 Levie on the Law of War 

ambiguous prohibition against a repatriated prisoner of war's being "employed 
on active military service." Like the United States, the ICRC interprets this 
to prohibit taking part "in armed operations against the former Detaining Power 
or its allies." Certainly, any reasonable interpretation of Article 1 17 is far from 

the broad ban which the "impartial," anti-war Committee of Liaison sought to 

62 
impose. 

The fact that the Committee of Liaison opposed U. S. participation in the 
hostilities in Vietnam is apparently considered one of the more decisive 
arguments in establishing both its "impartiality" and its "humanitarianism." 
Conversely, it is at least implied that support of U. S. participation in the 
hostilities in Vietnam establishes a lack of "impartiality" and "humanitarianism." 
Thus, the "National League of Families of American Prisoners and Missing in 
Southeast Asia," an organization all of whose members were relatives of 
servicemen either known to be prisoners of war or missing in action and whose 
goal was "to achieve better treatment for Americans held captive and to learn 
the status of those missing in action," is dismissed as being one of the "groups 
that also proclaim their humanitarian purposes, despite their commitment to 
Mr. Nixon's war policies." ' While there is merit to the conclusion that the 
"National League" did not qualify as an "impartial humanitarian organization" 
within the meaning of Article 9 of the 1949 Convention, this is not because of 
its failure to oppose U.S. participation in the Vietnamese conflict, but because, 
as in the case of the Committee of Liaison, there is no basis for concluding that 
it was the type of organization envisaged by the draftsmen of the 1949 
Convention. 

The failure of the U.S. Government to oppose Dellinger's application for 

leave to travel with the escort group when he was free on bail pending an appeal 

is construed as evidence of an implied consent by the United States to the 

activities of the Committee of Liaison. The fact that the U.S. Government 

fn 
did not "interfere with its activities," or "make an objection" to the 

Committee, and that "the North Vietnamese initiative was not repudiated," 

are also cited as evidence that the United States agreed to and concurred in the 

activities of the Committee of Liaison and that "it was a consensual process." 

In other words, it is contended that the failure of the U.S. Government to 

interfere with and to prevent the repatriation in 1972, just as it had taken no 

action to interfere with or prevent the earlier repatriations, constituted a legal 

acceptance of the Committee of Liaison as an "impartial humanitarian 

organization." That contention does not even appear to warrant discussion. 

The argument advanced with respect to the proper interpretation of Articles 

9 and 10 of the 1949 Convention is also without validity. Despite the fact that 

Article 9 is so specific in requiring the consent of both Parties to an armed conflict 

before the ICRC or an impartial humanitarian organization may undertake 



Aspects of Repatriation 1 83 

72 
activities for the protection or relief of prisoners of war, the argument is made 

that the language of both Articles 9 and 10 is "ambiguous with regard to whether 

the belligerent [belligerents?] must agree to the designation of a humanitarian 

organization"; and the conclusion is reached that it is "most reasonable" to 

interpret Article 10(2) "as giving the Detaining Power, North Vietnam, the 

capacity to deal with an organization like the Committee of Liaison." 

The DRV is at least a de facto state and its "capacity to deal" with the 

Committee of Liaison, or any other group, cannot be doubted; but to use this 

circumstance to establish that the Committee of Liaison is, therefore, an 

"impartial humanitarian organization" which may be unilaterally designated by 

the DRV as a substitute for the Protecting Power is quite another matter. The 

attempt to attain this result is, in effect, based upon the following reasoning: 

Article 10(2) of the 1949 Convention provides that if there is no Protecting 

Power and if no organization offering all guarantees of impartiality and efficacy 

to perform the duties of the Protecting Power has been designated to perform 

those duties under Article 10(1), "the Detaining Power shall request a neutral 

State, or such an organization, to undertake the functions" of the Protecting 

Power. In acceding to the 1949 Convention, the DRV made a reservation to 

Article 10 stating that it would not "recognize as legal" such a request by the 

Detaining Power "unless the request has been approved by the State upon which 

the prisoners of war depend." A substantially similar reservation to Article 10 

had been made by the USSR and the Soviet bloc countries upon signing the 

Convention in 1949 and in their subsequent ratifications. The reason given 

by the USSR for the reservation was the belief that "the Government of the 

country to which the protected persons belong [cannot be prevented] from 

taking part in the choice of the substitute for the Protecting Power." In 

recommending that the Senate give its advice and consent to the ratification of 

the 1949 Convention by the United States, the Department of State advised the 

Senate of its opposition to the USSR and similar reservations. This opposition, 

according to Falk, 

seems to confirm the United States view that the Detaining Power had the 
capacity, even the duty, to designate an impartial humanitarian organization and 
that such designation would be determinative at least in the absence of objection 

from the country whose men are detained that the organization is not "impartial" 

79 
or not "humanitarian." 

Thus, based upon the DRV reservation to Article 10 of the 1949 Convention 
and the earlier stated objection of the Department of State to the DRV-type 
reservation to that article, the conclusion is reached that a Detaining Power may 
unilaterally designate an "impartial humanitarian organization" to perform 
functions with respect to prisoners of war. 



1 84 Levie on the Law of War 

In the first place, it must be borne in mind that Article 10 deals, not with the 
activities of the "impartial humanitarian organization" referred to in Article 9, 
but with the activities of Protecting Powers and of "substitutes" for Protecting 
Powers. It seems incredible that the contention would be made that the 
Committee of Liaison, a small group of completely inexperienced individuals, 
whose only common thread was opposition to U.S. participation in the hostilities 
in Vietnam, could possibly qualify as an organization "offering guarantees of 
impartiality and efficacy to perform the duties of the Protecting Power," — which 
are the requirements set forth in Article 10(1) for an organization that may be 
designated under Article 10(2). 

In the second place, the DRV, like the USSR and the Soviet bloc countries 
at the 1949 Diplomatic Conference, made its reservation to Article 10 because 
it considered that the article improperly reduced the right of the Power of Origin 
to participate in the selection of a substitute for the Protecting Power. Inasmuch 
as the DRV became a Party to the 1949 Convention only on the condition that 
no neutral state or humanitarian organization could be designated by a Detaining 
Power to act as a substitute for the Protecting Power without the consent of the 
Power of Origin, it is certainly inverse reasoning to claim that this established 
the right of the DRV acting as a Detaining Power, unilaterally so to designate 
the Committee of Liaison, without the consent of the United States, the Power 
of Origin. 

In the third place, instead of referring to the suggestion made in a letter written 
by Secretary Dulles to the Senate Foreign Relations Committee concerning the 

attitude which the United States should take with respect to the Soviet bloc 

81 
reservations, it would have been more appropriate to refer to the position 

actually and officially taken by the United States in connection with ratification 

of the 1949 Convention: 

Rejecting the reservations which States have made with respect to the Geneva 
Convention relative to the treatment of prisoners of war, the United States accepts 

treaty relations with all parties to that Convention, except as to the changes 

82 
proposed by such reservations. 

In other words, while the United States has treaty relations with any state which 
has ratified or acceded to the 1949 Convention with a reservation to Article 10, 
those treaty relations are subject to the changes made by the reservation, which 
means that neither the United States nor the reserving state, when acting as a Detaining 
Power, may designate a neutral Power or a humanitarian organization as a 
substitute for the Protecting Power without the approval of the Power of 
Origin. 

One basic question remains. Why did they do it? Why did the North 
Vietnamese unilaterally release these randomly-selected, token-size groups of 



Aspects of Repatriation 185 

prisoners of war for repatriation? Were the North Vietnamese more 
humanitarian-minded than the belligerents of World War I? Of World War II? 
Of Korea? Were they inspired to do what they did because of empathy for the 

men released and repatriated? All of these questions carrv their own negative 

84 

responses. 

The Vietnam War was unlike past conflicts. Previous wars had not seen the 

establishment and proliferation of anti-war groups which functioned openly, 

85 
seeking publicity that was not always easy for them to obtain. The release of 

token numbers of prisoners of war to these groups for repatriation at rather 

lengthy intervals served, on each occasion, as a major propaganda device, one 

which for a number of days gave the North Vietnamese and the particular 

anti-war group large-scale newspaper, television, and radio coverage. Had the 

releases been purely humanitarian in nature, the prisoners of war selected for 

release would have been those who were the most seriously wounded or sick, 

or those who had been the longest in prisoner-of-war status; but neither of these 

87 
valid criteria was used in the selection process. 

The significance for the future of what transpired in the concluding months 
of American participation in the war in Vietnam is not great. In an all-out armed 
conflict, one which is a "war" both under international law and in an American 
constitutional sense, private repatriations by civilians will probably not be 
practical, because the members of the antiwar group in any belligerent country 
participating in such an event would undoubtedly find themselves spending at 
least the balance of the period of hostilities in close confinement after having 
been tried and convicted of treason or of communicating with the enemy. 
Second, as a practical matter, with the limitations which would exist on wartime 
travel, particularly across international borders, it would probably be all but 
impossible for an "escort group" to accomplish its function. Third, and most 
important, with the close censorship of the news media which is maintained 
during wartime, there would be litde or no propaganda value in releasing 
token-sized groups of prisoners of war for repatriation as the Power of Origin 
could completely control the amount of publicity, if any, which the event would 
be allowed within its territory, the place where the impact of the propaganda is 
actually desired. Without the publicity which releases and repatriations are 
designed to generate, the motive for such action by a belligerent withers on the 
vine. 

In conclusion, while there are both legal and humanitarian bases for the release 
and repatriation, or internment in neutral countries, during the course of 
hostilities of longtime, able-bodied prisoners of war, this highly laudable purpose 
can best be accomplished through resort to the established and recognized 
faculties of the Protecting Power and the International Committee of the Red 



1 86 Levle on the Law of War 

Cross, rather than through the use of partisan, ad hoc groups which have 
extremely limited public acceptance and recognition. 

Notes 

1. 67 AJIL 465 (1973) (hereinafter cited as Falk). 

2. 6UST3316;75UNTS 135; 47 AJIL Supp. 119(1953). 

3. One author asserts that "[fjaint though unmistakeable traces of it [ransom] survive even into Napoleon's 
war, ..." Lewis, Napoleon and His British Captives 43 (1962). See also, Levie, The Nature and Scope of 
the Armistice Agreement, 50 AJIL 880, 897 (1956). Perhaps it may be said to have reappeared momentarily as a 
result of the sequel to the Bay of Pigs episode. 

4. When, for some reason, a formal exchange could not be made, a prisoner of war might be released 
and repatriated in a temporary parole status until his counterpart had been repatriated and the formal exchange 
had thus been completed. Lewis, supra note 3, at 45. 

5. The occasional procedure mentioned in the previous note was substantially the system adopted as a 
general procedure in the rather ineffectual Dix-Hill Cartel during the American Civil War. Lewis & Mewha, 
The History of prisoner of War Utilization by the United States Army, 1776-1945, at 29-30 
(1955); Murphy, Prisoners of War: Repatriation or Internment in Wartime 2-3 (1971). 

6. The release and repatriation on temporary parole mentioned in note 4, supra, was the exception rather 
than the rule; and the Dix-Hill Cartel, in attempting to make it the rule, failed to accomplish the intended 
result to the satisfaction of either side. 

7. See, for example, U.S. Army Field Manual 27-10, The Law of Land Warfare, para. 187a (1956); 
Article III, Code of Conduct for Members of the Armed Forces, Exec. Order No. 10631, Aug. 18, 1955, 3 CFR, 
1954-1958 Comp., at 266; United Kingdom, The Law of War on Land, Being Part III of the Manual 
of Military Law, para. 246, n. 1 (1958); Code: de Justice Militaire, Armeede Terre, Art. 235 (Dalloz, 
1963). 

8. 47 Stat. 2021; 2 Bevans 932; 27 AJIL SUPP. 59 (1933). 

9. On Dec. 9, 1970, the UN General Assembly adopted a Resolution in which it: 

Urges compliance with Article 109 of the Geneva Convention of 1949 . . . which provides for 

agreements with a view to the direct repatriation ... of able-bodied prisoners of war who have 

undergone a long period of captivity. (A/RES/ 1676 (XXV) (1970)). 

In Havens, Release and Repatriation of Vietnam Prisoners, 57 ABAJ 41 , 44 (1971), the author argues that after 
18 months as a prisoner of war an individual should be entitled to release and repatriation. However, he cites 
no authority for this interpretation of the provisions of the 1949 Convention. 

10. Article 109(3) prohibits the involuntary repatriation of sick and injured prisoners of war during the 
course of hostilities. Normal rules of treaty interpretation would seem to make this provision inapplicable to 
the repatriation during hostilities of able-bodied prisoners of war unless it can be said that as a result of the 
settlement reached in Korea in 1953, supported by a number of resolutions of the UN General Assembly, a 
norm of international law has evolved which prohibits the involuntary repatriation of prisoners of war under 
any circumstances. 

11. Although both the 1929 and the 1949 Conventions contemplate that such repatriations will be 
accomplished under agreements between the Parties, there is certainly no reason why one Party cannot elect 
to take such action unilaterally if it so desires. Article 6(2) of the 1949 Convention specifically mentions this 
possibility and Article 118(2) of that Convention, dealing with post-hostilities release and repatriation, 
specifically provides for, and even requires, unilateral action if no agreement covering the subject is reached 
by the belligerents. Pakistan initiated this unilateral action in November 1972 with respect to the Indian 
prisoners of war it then held. NY Times, Nov. 28, 1972, at 1, c. 2. 

12. Article 117 of the 1949 Convention provides that "[n]o repatriated person may be employed on active 
military service." This provision is, of course, quite ambiguous. Pictet (ed.), Commentary ON THE Geneva 
Convention Relative to the Treatment of Prisoners of War 538-39 (1960) (hereinafter cited as 
Pictet, Commentary). U.S. military authorities have construed Article 1 17 as only prohibiting the repatriated 
serviceman from participating in combat against the former Detaining Power and not as requiring his complete 
separation from the military service. American Prisoners of War in Southeast Asia, 1971, Hearings before the 
Subcomtn. on National Security Policy and Scientific Developments of the House Comm. on Foreign Affairs, 92d Cong., 
1st Sess., 350 (1971) (hereinafter cited as 1971 Hearings). 

13. Although the Report of the International Committee of the Red Cross on its Activities 
During the Second World War (September 1 , 1939 — June 30, 1947) (1948) includes a 21 -page discussion 
of the numerous repatriations of seriously wounded and seriously sick prisoners of war in Europe (Vol. I, at 



Aspects of Repatriation 1 87 

373-93), it does not even mention any proposal by a belligerent or neutral state or a humanitarian organization 
to implement Article 72 of the 1929 Convention. 

14. Probably no armed conflict which has occurred since 1945 (except for those involving the French in 
Vietnam, Korea, and the later Vietnamese conflict) has really continued for a long enough time for any prisoner 
of war to be considered as having "undergone a long period of captivity." 

15. The Dix-Hill Cartel, supra notes 5 and 6, failed because in the early years of the American Civil War 
the equal exchange of able-bodied prisoners of war favored the Union, while later in the conflict it favored 
the Confederacy, Lewis & Mewha, supra note 5, at 30. Of course, this criticism is not true of internment in 
a neutral country, the alternative provided for in Article 109(2). 

16. See Lindsay (ed.), Swiss Internment of Prisoners of War 3 (1917): 

The fear expressed by France [in February 1915] that under the system of exchange wounded soldiers 
would be returned to Germany who could still be of military service [an amputee could work in a 
depot, thus relieving an able-bodied solider], was common to other belligerents. . . . 

17. Levie, Prisoners of War and the Protecting Power, 55 AJIL 374 (1961). 

18. Ibid., at 394-96. See also I ICRC REPORT, supra note 13, at 11-29. 

19. Fourth Meeting of the Joint Committee, Final Record of the Diplomatic Conference of 
Geneva of 1949, Vol. ILB, at 18, 21 (hereinafter cited as Final Record). 

20. Annex 24, Final Record, Vol. Ill, at 32. 

21. Final Record, Vol. IIB, at 60 (emphasis added). 

22. Article 7/8/8/8, ibid., at 346. 

23. At some point in the deliberations the word "body" was changed to "organization" but this author 
was unable to pinpoint the event in the Final RECORD, a result not unique to this particular matter. 

24. Pictet, Commentary, 107-08. 

25. Both the phrasing of the provision of the 1949 Convention and the doctrine of ejus dem generis indicate 
the validity of the conclusion reached by the ICRC that it was to be considered "as an example of what is 
meant by 'impartial humanitarian organization'." 

26. No matter how politically remote its policymakers and other members may be from the cause of the 
war and from the belligerents, they will, of course, inevitably have individual prejudices with respect to any 
armed conflict that may be in progress. However, if the organization is to be able to maintain its aura of 
"impartiality," even these individual preferences must be both suppressed and concealed because of the human 
difficulty of ascribing "impartiality" to an organization whose policymakers and other members have publicly 
expressed individual preferences and prejudices. 

27. During the hostilities in Korea the Chinese charged, with the support of the USSR, and totally without 
justification and solely for political reasons, that the ICRC was a "capitalist spy organization." United Kingdom, 
Ministry of Defence, Treatment of British Prisoners of War in Korea 33-34 (1955). The actions of 
the North Vietnamese during the hostilities in Vietnam would seem to indicate a similar attitude. Falk, The 
American POWs; Pawns in Power Politics, The Progressive, March 1971, at 13, 16. Under the circumstances, 
it is unexpected, indeed, to find the USSR communicating to the Secretary-General of the United Nations 
its belief in the need for the ICRC to undertake additional tasks relating to the protection of human rights in 
armed conflict and omitting any suggestion for the use of "other impartial humanitarian organizations" for 
this purpose. Report of the Secretary-General, Respect for Human Rights in Armed Conflict, UN Doc. A/8052, 
Sept. 18, 1970, at 119, 120. 

28. During World War II, the Young Men's Christian Association, the National Catholic Welfare 
Conference, and other similar organizations, were permitted, in varying degrees, to supplement the 
humanitarian work of the ICRC on behalf of enemy prisoners of war held in the United States. Rich (ed.), 
A Brief History of the Office of the Provost Marshal General, World War II, at 489-91 (mimeo., 1946). Some of 
these organizations might, upon investigation, qualify under Article 9. While their orientation was, for the 
most part, primarily religious, they normally offered humanitarian assistance to all enemy prisoners of war, 
without regard to their origin, nationality, or religion. Of course, religious supplies furnished by them were 
limited to those of their own denomination. 

29. When the representative of the United States at the 1949 Diplomatic Conference supported the 
proposed change in the draft of Article 9 and referred to "welfare organizations of a non-international 
character," he unquestionably had in mind the operation of such organizations in their own country, based 
upon the experience in the United States during World War II mentioned in the previous note. 

30. There could certainly be little dispute that, during World War II, it would have been impossible for 
the American Red Cross, or the YMCA, or the National Catholic Welfare Conference, all 
American-established and based humanitarian organizations, to have obtained permission to function in 
Germany or Japan, or for the German or Japanese Red Cross to have obtained permission to function in the 



1 88 Levie on the Law of War 

United States. The same was indubitably true of the American Red Cross, the Red Cross of the Republic of 
Vietnam, and the Red Cross of the Democratic Republic of Vietnam (DRV) during the hostilities in Vietnam. 

31. No matter how humanitarian may have been H. Ross Perot's motives, his misguided activities on 
behalf of the American prisoners of war then held in North Vietnam could not have been considered as falling 
within any provision of the 1949 Convention. 

32. The "institutional basis" and the "operational experience and tradition" need not necessarily have 
been prisoner-of-war oriented, or even war-oriented. 

33. Some official action previously taken by the international organization might have called in question 
its impartiality but it would not affect its "institutional" qualifications. 

34. It can be assumed that the People's Republic of Korea and the Democratic Republic of Vietnam 
would rely on this provision in justification of their right to refuse to allow the ICRC to perform its customary 
humanitarian functions within their territories. Whether they did indeed act on the basis of law is another 
question. 

35. See text in connection with notes 19-23, supra. 

36. Final Record, Vol. IIB, at 60. 

37. Pictet, Commentary, 109. 

38. Supra note 30. If Switzerland were a belligerent, the ICRC would undoubtedly find itself refused 
permission to function in the territory of that country's enemy, despite the century-old tradition of impartial 
humanitarianism which the ICRC enjoys. It could, of course, continue to perform those humanitarian 
functions which might be performed in Switzerland. 

39. This is why the reservation made to Article 10 of the 1949 Convention by the USSR and the other 
Communist countries (including, subsequently, the DRV) and objected to by the Western countries, appears 
to have a valid basis. Levie, supra note 17, at 385, n. 32. That article provides that if there is no Protecting 
Power, and for some reason, a new Protecting Power cannot be designated, the Detaining Power may request 
the services of a neutral state or of a humanitarian organization such as the ICRC to perform the functions of 
the Protecting Power. The Communist reservation properly makes the consent of the Power of Origin 
necessary for the designation of such a substitute. (For a more detailed discussion of the reservation to Article 
10, see text at pp. 182-84.) 

40. "Observations" Nos. (1) and (4), Falk, at 477. 

41. See text at pp. 174—75 and note 9, supra, 

42. Mrs. Cora Weiss, co-chairman with David Dellinger of this Committee, testified as follows with 
respect to this group: 

The Committee of Liaison was established on January 15, 1970, after three women including myself, 

of Women Strike for Peace, returned from a trip to North Vietnam. In our announcement of formation 

and purpose, we stated that the purposes of the committee were (1) to facilitate communication 

between prisoners and their families; and (2) to inquire on behalf of families regarding the status of 

their missing relatives. 

1971 Hearings 230. An "Information Sheet" issued by the Committee of Liaison during the month of its 

inception stated that it had been established "at the request of the North Vietnamese." The Information Sheet 

goes on to give assurances that the Committee of Liaison "is not in any sense representing the government of 

North Vietnam." Ibid., 532. 

43. Falk, 473-74. 

44. The significance of mentioning a time period instead of an exact date is discussed in note 86, infra. 

45. The men released were Sgt. Edward R. Johnson, Sgt. Daniel L. Pitzer, and Sgt. James E. Jackson. 
N.Y. Times, Nov. 13, 1967, at 2, c. 6. On three subsequent occasions the Viet Cong released a total of six 
additional American servicemen in the field, allowing them to return to U.S. military control without the 
benefit of an escort. 

46. The men released were Maj. Norris M. Overly, USAF, captured in Sept. 1967; and Capt. Jon D. 
Black, USAF, and Lt. (j.g.) David P. Matheny, USN, both captured in Oct. 1967. N.Y. Times, Feb. 17, 1968, 
at l,c. 8. 

47. The men released were Maj. James F. Low, USAF, captured in Dec. 1967; Capt. Joe V. Carpenter, 
USAF, captured in Feb. 1968; and Maj. Fred N. Thompson, USAF, captured in March 1968. N.Y. Times, 
Aug. 5, 1968, at 15, c. 1. 

48. The men released were Lt. Robert F. Frishman, USN, captured in Oct. 1967; Seaman Douglas B. 
Hegdahl, captured in April 1967; and Capt. Wesley L. Rumble USAF, captured in April 1968. N.Y. Times, 
Aug. 5, 1969, at 1, c. 2. 

49. Lt. (j.g.) Markham L. Gartley, USN, had been captured in Aug. 1968; Lt (j.g.) Morris A. Charles, 
USN, had been captured in Dec. 1971; and Maj. Edward K. Elias USAF, had been captured in April 1972. 
David Dellinger was once again one of the emissaries selected by the DRV to receive the release of the three 



Aspects of Repatriation 1 89 

prisoners of war, but this time it was not in his capacity as a member of the "National Mobilization Committee," 
but in his parallel capacity as a member of the Committee of Liaison. N.Y. Times, Sept. 17, 1972, at 3, c.4. 

50. Only Frishman could be said to have had a physical condition which might have warranted his release 
and repatriation on medical grounds. Gartley, who had been a prisoner of war for more than four years, 
certainly qualified as a "longtime" prisoner of war. Hegdahl had been a prisoner of war for 28 months, Frishman 
for 22 months, and Rumble for 16 months. All of the other men released and repatriated by the DRV had 
been prisoners of war for less than one year (actually, for periods of between 4 and 9 months). 

51. Falk, 467, 471-72. Falk seems to have been surprised that no answer was received from the U.S. 
Government by the Committee of Liaison to this and other messages sent from Hanoi. Ibid., 467. It is difficult 
to believe that he really expected answers. 

52. While the cablegram does state that the conditions it contained were "[i]n accordance with the 
expressed expectations of the North Vietnamese Government," Falk indicates clearly that its contents were 
developed by the "escort group" as an outgrowth of internal discussions which took place in Hanoi with 
respect to the group's "responsibilities" (ibid., 466-67) and that the releases by the DRV were, in fact, 
unconditional. Ibid., 471. 

53. It is, of course, possible that the desire of the Committee of Liaison to retain "custody" of the three 
men and to travel by civilian, rather than military, aircraft, could have been motivated by the publicity 
anticipated from a press conference and reception planned for their arrival at Kennedy Airport. Ibid., 468. 

54. Ibid., 471. 

55. The use of the term "furlough" shows a practical ignorance of contemporary military vocabulary. It 
was never applicable to officers and disappeared from the military lexicon shortly after World War II. Only a 
certain antiquarian interest would have prompted the three officers to request a "furlough." 

56. Was the granting of 30-day "furloughs" one of the "expressed expectations of the North Vietnamese 
Government"? See note 52, supra. 

57. For example, after Korea some 4,400 prisoners of war were released and repatriated. Each was put 
through a processing which had been well organized beforehand and which included preliminary 
hospitalization and medical examination injapan, return to the United States when medically approved, further 
hospitalization either in Hawaii or in the military hospital nearest to his home, complete medical examination 
and treatment, and extended leave as soon as medical clearance was granted. 

58. Falk, 471-72. Elsewhere reference is made to "reported abuses in relation to prior treatment" and the 
suggestion is advanced that there should be "a preliminary medical examination, perhaps under neutral auspices" 
(ibid., All, emphasis added). Incredible as it may seem, these two quotations refer to the treatment of repatriated 
prisoners of war in military hospitals in the United States! 

59. Ibid., 472. Here and elsewhere throughout the article statements appear implying that anything done 
for the benefit of repatriated prisoners of war in the United States occurred solely because of public pressure 
by the escort group and in spite of strong governmental (or military service) predilections to the contrary. 
This, of course, disregards the fact that everything done for these men, as well as those who preceded and 
followed them, evolved from a refinement of the procedures for repatriated prisoners of war applied after 
World War II and Korea. 

60. Supra note 12. 

61. Pictet, Commentary, 539. 

62. If one of these men had resigned from the military service and had then gone on a speaking tour in 
support of U.S. participation in the hostilities in Vietnam, he clearly would not have violated Article 117 of 
the 1949 Convention; but he would have violated the broader prohibition of the fourth "guideline." 

63. Falk, 473-74. 

64. 1971 Hearings 25. 

65. Falk, 474 and n. 13. (In the cited note, the activities of the "National League of Families" are equated 
to the activities of H. Ross Perot.) 

66. Ibid., 474. 

67. Ibid. 

68. Ibid., 475. 

69. Ibid., All. 

70. Ibid. 

71. Ibid. 

72. See text supra at pp. 700-01. 

73. Falk, 474. 

74. Ibid. 

75. 274UNTS339. 



1 90 Levie on the Law of War 

76. See note 39 supra. The USSR reservation provides for "the consent of the Government of the country 
of which the prisoners of war are nationals." 191 UNTS 367. Either wording refers, of course, to the Power 
of Origin. 

77. Final Record, Vol. IIB, at 347. 

78. Geneva Conventions for the Protection of War Victims, Hearing before the Senate Comm. on Foreign Relations, 
84th Cong., 1st Sess., on Executives D, E, F, and G, 82d Cong., 1st Sess., at 62 (1955). 

79. Falk, 475. 

80. Ibid. 

81. Ibid., n. 17. 

82. 6 UST 3316, 3514; 213 UNTS 383. 

83. Pilloud, Reservations to the 1949 Geneva Conventions 5 (1958). 

84. A number of questions, basically along this same line, appear in the Falk article, at 477 and 478. They 
are not answered except by the statement that "North Vietnamese motivations are of no account." Ibid., 478. 

85. When the Viet Cong made the first prisoner-of-war release, in Nov. 1967, Nguyen Van Hieu, the 
VC representative in Phnom Penh, Cambodia, where it took place was quoted as follows: 

Mr. Hieu said that the soldiers were being released in cooperation with American opponents of the 
United States involvement in the Vietnam war in the expectation that they would be able to contribute 
usefully to the United States peace movement. 

N.Y. Times, Nov. 13, 1967, at 2, c. 6. This revealing statement was not repeated on the occasion of the 

subsequent releases. 

86. Some evidence of this can found in the fact that with each release of prisoners of war there would be 
a great fanfare when the announcement of the proposed release was made, or when the escort group set off 
for Hanoi, or when it arrived in Hanoi — and then there would be an unexplained delay of a number of days 
while the publicity, of course, continued. For example, in the second 1968 release the delay was "pretty close 
to three weeks" (1971 Hearings 222) and in the 1972 release of which Falk gives us a blow-by-blow description 
the unexplained delay was from Sept. 17 to 24 (Falk, 466). While it is true that a Gallup poll conducted in 
Feb. 1970 revealed that a majority of Americans did not believe the glowing statements made by the members 
of the escort groups upon their return to the United States, a surprising number of Americans apparently did 
believe them — and even if the number had been much smaller, the propaganda value to the DRV far 
outweighed the cost, which was negligible. 

87. Actually, it is probable that no criteria were used. See note 50 supra. In the July- Aug. 1968 release the 
three pilots released had been prisoners of war for only four to seven months. Note 47 supra. Concerning the 
selection of these three individuals, one witness before the House Subcommittee testified: 

When Thompson, Low and Carpenter were brought together at the time of their release, they tried 
to figure out why they had been selected. They determined, as many others have since determined, 
that the obvious conclusion was that none of them had been held very long, all were in apparent good 
health, they were not debilitated or injured, nor had they been subjected to extremes of brutality. And, 
too, each had been penned up separately, in a solitary cell, barred from learning all they might otherwise 
have learned about the general condition of the prison camps or the general condition or treatment 
of other prisoners. 

As Major Thompson says, "We were safe bets to release. People would see and say, 'Maybe they do 
take good care of their prisoners'." 
1971 Hearings 387. 



Weapons of Warfare 



Law and Responsibility in Warfare 153 (Peter D. Trooboffed., 1975) 



Any analysis of the legality of using lachrymatories, napalm, and herbicides 
(defoliants) should not, in my view, be confined to determining their 
status under the 1 925 Geneva Protocol and customary international law. As I 
have urged elsewhere, we should concern ourselves with the future, not just the 
past. I will, therefore, attempt here not only to examine the existing law 
regarding these weapons, but also to look ahead to what this country's policy 
should be toward their use in armed conflicts. 

Lachrymatories 

3 
CS , the modern-day lachrymatory or tear gas , is a sensory irritant that harasses 

and incapacitates by causing a copious flow of tears. While it may sometimes 

cause irritation, and even blistering, of the skin and, occasionally, nausea and 

vomiting, the symptoms will usually quickly disappear when the victim is 

A 

removed from the contaminated area. The incapacity caused by tear gas is said 
to be "a temporary, reversible disability with few, if any, permanent effects."" 
It is used by most of the police forces of the world for domestic riot-control 
purposes. Its great advantage over older tear gases, and others currendy available 
such as CN, is the speed with which it incapacitates — about five seconds after 
exposure. CS is, of course, only a modern version of tear gas, which has long 
been available in other forms. 

Strangely enough, it may truthfully be said that the United States introduced 
the use of CS in hostilities in Vietnam for humanitarian reasons. One of the first 
uses of CS, in September 1965, actually accomplished this purpose. A Viet Cong 
force was holed up in a tunnel. The United States commander believed that 
there were also quite a few civilian noncombatants, women, and children in the 
tunnel. He decided to use CS and succeeded in flushing out about four hundred 
people, including seventeen armed Viet Cong, without inflicting any injuries 

"7 

or causing any deaths. A second use of CS that might be termed "humanitarian" 
was in helicopter missions to remove the wounded from the field of combat and 
to rescue downed fliers. In these cases the surrounding area was saturated with 



1 92 Levie on the Law of War 

CS in order to hold down small-arms fire against the helicopter during the course 
of its pickup mission. 

However, CS proved so effective for these purposes that its use was quickly 
extended to include numerous methods of delivery, both by air and on the 
ground, and many types of combat operations. Among the combat uses in 
Vietnam listed by various students of the matter are: 

Defensive operations: 

1 . Defending perimeters (to repulse attacks on outposts and other fortified areas); 

2. Covering the removal of troops by helicopter (an extension to defensive 
combat operations of the original humanitarian purpose of removing the 
wounded and rescuing downed fliers); and 

3. Responding to the ambush of convoys (the ambushing troops, who, being 
unseen, were not good targets for small arms, were frustrated by the use of 
CS covering wide areas on both sides of the road). 

Offensive operations: 

1. Flushing the enemy from tunnels, caves, bunkers, fortifications, etc. (this 
considerably reduced the number of friendly casualties); 

2. Covering the landing of troops by helicopter (an extension to offensive combat 
operations of the original humanitarian purpose); 

3. Contaminating an area and thus denying its use to the enemy (while CS is not 
particularly persistent, during dry spells it can be stirred up by the movement 
of a vehicle for some period of time); and 

4. Reconnoitering enemy troop positions (CS forced concealed troops to reveal 
their position). 

Thus we find CS not being employed for humanitarian purposes to reduce 
the number of casualties, particularly of noncombatants. Instead, it was being 
used in conjunction with small-arms and artillery fire and with high-explosive 
and antipersonnel bombs. The individual driven from his place of safety by the 
tear gas thus became the victim of the conventional weapon. One commentator 
believes that developing these uses for tear gas, far from having a humanitarian 
result, actually increased the number of casualties among noncombatants. He 
concludes that tear gas forced noncombatants from cover, exposing them to 
weapons from which they would otherwise have been protected. 

Was there anything illegal about the use of these combat procedures? Only 
if there is some norm of international law, either contractual or customary, 
prohibiting the use of tear gas in international armed conflict. The questions that 
then arise are: Do the prohibitions of the 1925 Geneva Protocol include a ban 
on the use of incapacitating gases, such as tear gas? And, if so, has this ban become 



Weapons of Warfare 1 93 

a pan of customary international law, binding on nations such as the United 
States that were not parties to the Protocol during the hostilities? 

On both of these questions there is a sharp difference of opinion among the 
writers. There are those who believe that, because of the discrepancy in wording 

between the English and French versions of the Protocol, or for other reasons, 

■ 12 

tear eases such as CS are not included in the treatv ban. There are others who 

are iust as certain that they are. 

Even if one assumes that tear gases are included within the prohibitions of 
the Protocol, that, of course, merely establishes a contractual ban. It does not 
necessarily mean that there was a norm of customary international law binding 
on the United States, then not yet a party to the Protocol. There is just as 
sharp a division of thought among the experts as to whether there is a norm of 
customary international law prohibiting the use of tear gas in international armed 
conflict. The positions taken in the writings on the customary law raise three 
questions that, in my view, remain unanswered. 

1. If the Protocol itself is so indefinite that many articles have been written 
interpreting it both as banning the use of tear gas in international armed conflict 
and as not covering incapacitating gases such as tear gas, how can it be said to 
constitute the basis for, or represent the codification of, a norm of customary 
international law on the subject? 

2. If there is a norm of customary international law banning the use of 

incapacitating gases, such as tear gas, in international armed conflict, what is the 

significance of the many reservations to the Protocol making the ratifications 

applicable only with respect to other parties to the Protocol? Are the resenting 

states not saying that they are free from any ban on the use of any gas, including 

incapacitating gases, in hostilities with nonparties? If they are not saying that, 

what are thev saving; in the reservations": 

16 17 

3. ^v%Tiat do writers such as Lauterpacht and Stone ' mean when they say 

that the prohibition on the use of gas (which would presumably include tear 
gases) is binding upon "practically all States"? How can a rule of customary 
international law be binding only on practically all states? 

Setting aside the unresolved legal problems, what are the practicalities that 
have motivated nations and international lawyers to find that international law. 

bv treatv and bv rule of custom, prohibits the use in international armed conflict 

-18 
of a comparatively harmless gas such as CS? The answer appears to be that 

there exists a well-founded fear that unless all gases, including the incapacitating 

gases, are considered barred, nations will build up their production capabilities 

and their reserves and these will not be limited to incapacitating gases. ' This 

20 

did, of course, occur." Furthermore, it is feared that if some gases are not 

included in the ban, it will be difficult, if not impossible, to draw a clear line 

21 

between the lawful and the unlawful. If tear gases are allowed because of their 



1 94 Levie on the Law of War 

nonpermanent effect, why not, for example, a psychochemical that gives the 
victim temporary hallucinations, or a gas that painlessly immobilizes the victim 
for a number of hours? Finally, there exists the fear that any use of gas, even an 
agent that is generally admitted to be only temporarily incapacitating, will 
inevitably escalate into more extensive gas warfare. We have seen that the use 
of CS in Vietnam started out with a narrow humanitarian purpose and expanded 
into a major operational combat weapon. While the escalation fortunately did 
not go any farther, that possibility was always present. 

On the basis of the available materials, I am frankly unable to say that the 
United States was bound during the Vietnam War by any rule of international 
law prohibiting the use of tear gas in international armed conflict. I am 
convinced, however, that morally and politically the United States would be 
well advised to adopt and follow a policy of self-denial. This country should 

adopt a policy of no first use of tear gas just as it has announced such a policy 

23 
for other gases. While the original use of CS in Vietnam may have had a 

humanitarian basis, the varied combat uses subsequently adopted were actually 

antihumanitarian in nature and result. The United States has isolated itself 

politically in this area. It has also created the possibility that the use of tear gas 

in some future conflict will gradually escalate into full-fledged gas warfare. The 

advantages derived from the use of tear gas in Vietnam, even assuming that such 

use was completely in accordance with international law, were not worth the 

price that had to be paid. 

Napalm 

Fire has, of course, been used as a weapon since time immemorial. Military 
forces relied heavily on flamethrowers during World War I and even more so 
during World War II. Similarly, magnesium and white-phosphorous fire bombs 
were widely employed during World War II both in Europe and in the Far East. 

Napalm was first developed and used during World War II. At no time 
during either world war did a substantial or authoritative voice challenge the 
legality of using fire as a weapon in international armed conflict. When napalm 
was used extensively for the first time, in Korea, cries of outrage were heard. 
But these protests came almost exclusively from the side whose troops were 
receiving it and were unable to reciprocate in kind. During the Vietnam War 
these protests grew in volume, and they had support from elements throughout 
the world. 

Napalm is a gelled gasoline. The word itself is an acronym for the two 
ingredients that were thought to constitute the thickener that is added to the 
gasoline to produce the gel. ' It is an extremely effective weapon and 






Weapons of Warfare 1 95 

undoubtedly the most valuable incendiary now available. Napalm is greatly 
feared, and its use causes far more panic than other weapons. 

For these reasons, the United Nations Group of Consultant Experts on 
Chemical and Bacteriological (Biological) Weapons stated that napalm should 
be classified with high-explosive weapons, rather than with asphyxiating or 
poisonous gases. Resolution XXIII of the International Conference on 

Human Rights, adopted in Tehran on 12 May 1968, contained a preambulary 

27 
clause classifying napalm bombing with chemical warfare. This portion of the 

resolution was omitted from General Assembly Resolution 2444 (XXIII), which 

resulted from the Tehran conference. 

In a report to the International Conference of the Red Cross, held in Istanbul 

in 1969, the International Committee of the Red Cross (ICRC) noted that 

napalm is a weapon that "can be very effective, while remaining precise in its 

consequences"; and that "napalm and incendiary weapons in general are not 

specifically prohibited by any rule of international law.'" Some members of 

the Group of Experts convened by the ICRC expressed the opinion that napalm 

falls within the coverage of the 1925 Protocol because it can cause asphyxia by 

air deprivation. Others "considered such an assimilation difficult" and concluded 

... 29 
that it is the use to which the weapon is put that determines its legality. Napalm 

has also been condemned as causing unnecessary suffering in violation of the 

1907 Hague Regulations. 

I do not believe that, at present, there is any rule of international law that 

prohibits the use of napalm upon selected targets, but there is, as I have argued 

previously, a strong humanitarian basis for urging total prohibition. However, 

as a practical matter, a meaningful agreement probably will not be reached to 

ban a weapon as effective as napalm has proved itself to be. As an alternative, I 

concur in the proposal that the Secretary-General of the United Nations have 

prepared, with the assistance of qualified consultant experts, a report on napalm 

similar to the one on chemical and bacteriological (biological) weapons. Such 

a report would examine whether it is necessary to limit or prohibit the use of 

napalm in international armed conflict. If either of these types of action is agreed 

upon, the report would serve as a basis for drafting an international convention 

on napalm. 

Herbicides (Defoliants) 

Herbicides (defoliants) are agricultural chemicals that poison or desiccate the 
leaves of plants, causing them either to lose their leaves or to die. When 
herbicides cause leaf fall, whether they kill the plant or not, they are known as 
defoliants. While the first actual use of herbicides in armed conflict was probably 
during the Vietnam War, they are far from a new weapon. In 1945 the United 



1 96 Levle on the Law of War 

States had already developed herbicides known as LN agents, which were stated 
to be effective against plants, but not injurious to animals or humans. Some 
consideration was given to their use against the gardens that supplied food to 
the Japanese military on Pacific islands that the Allied forces bypassed in their 
advance toward Japan. But no such action was actually taken. Herbicides have, 
of course, had considerable use as weed-control agents. 

As in the case of CS, the passage of time brought about a major change in 
the nature of the use of herbicides in Vietnam. While the original use was to 
defoliate jungle growths in order to open up to view enemy infiltration routes, 
a number of other uses were soon found. Crop destruction subsequently assumed 
some importance, although it never displaced defoliation as the primary use. 
By 1 968 the extent of the use of herbicides was limited only by the availability 
of supplies. ' Some of the uses to which herbicides were put in Vietnam 
included: 

1 . Defoliating enemy infiltration routes — to open them to view; 

2. Defoliating friendly base perimeters — to prevent sneak attacks; 

3. Defoliating lines of communication, including river banks — to prevent 
ambushes; 

4. Defoliating enemy base areas — to make his troops move; and 

5. Destroying crops — to make the enemy divert his combat efforts to food 

37 
procurement and supply. 

Once again, there is a sharp division of opinion among the experts on the 
applicability of the 1925 Geneva Protocol to herbicides. Some believe that the 

Protocol includes a ban on antiplant chemicals. They concede that the evidence 

38 
to support this finding is comparatively weak. Their strongest argument is not 

the legislative history, which they heavily rely upon. It is rather the practical, 

not legal, point that, as in the case of incapacitating gases, it is impossible to draw 

a clear line between what is prohibited and what is not. As a result, unless nations 

39 
consider all herbicides as banned, the possibility of escalation is ever present. 

Other writers find no prohibition in the 1925 Geneva Protocol or in 

. 40 

customary international law against the use of herbicides. They are particularly 

certain of this conclusion if defoliation has a valid military purpose and if crop 

destruction is limited to crops destined for consumption by the military. It is, 

perhaps, appropriate to note two arguments that have been advanced in support 

of this basic thesis. The validity of each has been attacked. 

The first is that because herbicides are widely used domestically to control 

weeds and other unwanted vegetation, the Protocol (and, presumably, 

customary international law) cannot possibly have been intended to apply to 

them. * This argument is correctly met with the response that evidence of 

domestic use is irrelevant for these purposes. * There is nothing to prevent 






Weapons of Warfare 1 97 

nations from banning the use as a weapon in international armed conflict of 
chemicals that may be permitted within the boundaries of many of these same 
nations. On the other hand, the weakness of this particular argument 
concerning domestic use of herbicides may not be relied upon to support the 
view that herbicides are within the reach of the Protocol or of customary 
international law. 

The second argument sometimes advanced against Protocol coverage of 
herbicides is that it could not have been intended to prohibit the use of herbicides 
because their military use was unknown in 1925. This is challenged as being of 
no legal significance if the prohibition falls within the objectives that the parties 

4S 

were attempting to achieve by the Protocol. A similar reply was advanced 
long ago with respect to Protocol coverage of nuclear weapons. I had difficulty 
in accepting this view in the context of nuclear weapons. It is equally difficult 
to support it in this context. The acceptance of such an interpretation could 
virtually convert a treaty prohibiting the use of certain gases in international 
armed conflict into a treaty banning war. Salutary as this result might be, I scarcely 
believe that a legal justification can be found for it. And, of course, if the Protocol 
is inapplicable, it cannot represent the codification of a norm of customary 
international law outlawing herbicides. 

One of the major practical arguments advanced against the use of herbicides 
is ecological in character. The report of the United Nations group of consultant 
experts stated that there had been no scientific evaluation of the long-term 
ecological changes caused by herbicide spraying. They were able to estimate 
that twenty years will be needed to regenerate the mangrove forests along the 
river banks in Vietnam. Another scientist warns that "when we intervene in 
the ecology of a region on a massive scale we may set in motion an irreversible 
chain of events." ' One nonscientist writer in the field coined the word 
"ecocide" in asserting that a recent scientific study indicated that permanent 
damage had been done to "future generations [in Southeast Asia] and the very 

49 

nature of the earth." 

The United States heeded the admonitions of the environmentalists and 
substantially phased out its herbicide-spraying program in Vietnam. When it did 
so, it sought acceptable substitutes that would accomplish the same missions. 
Two seemingly noncontroversial methods were adopted: plows that tore up the 
vegetation along roads and trails to reduce ambushes, and concussion bombs 
that, by exploding horizontally, destroyed vegetation without cratering. The 
environmentalists, concerned only with their "thing," attacked the use of these 
new technologies. Perhaps they will soon make the side effects of war so 
unpopular that they will succeed where the statesman and the international 
lawyer have long labored in vain — they will make it impossible for wars to be 
fought by denying all weapons to their military forces. 



1 98 Levie on the Law of War 

I am inclined to conclude that international law does not prohibit the use of 
herbicides so long as such use does not violate any of the general norms of the 
laws of war. This means that the destruction caused by herbicides must have a 
valid military purpose and that a food crop that is sprayed has to be identifiable 
as being grown for the use of the military. However, this is a weapon the ultimate 
effects of which are not now really predictable. It is one that may cause a 
complete upsetting of the life cycle of a treated area. Ultimately, the use of such 
a weapon may be as destructive to mankind as a nuclear or biological war. It 
appears not only that the United States was well advised to phase out its use of 
this weapon, but also that it should cut off the supply to South Vietnam in order 
to eliminate completely the use of herbicides in that country. With its ratification 
of the Geneva Protocol of 1925, the United States has now taken the first step 
by voluntarily renouncing the first use of herbicides, with certain minor 
exceptions. 

Notes 

1. The United States was not a party to the 1925 Geneva Protocol at the time of the Vietnam War. 
President Nixon submitted it to the Senate for its advice and consent to ratification on 19 August 1970 (U.S., 
Congress, Senate, Foreign Relations Committee, Committee Print: Message by President Richard M. Nixon of 
August 19, 1970, and Report by Secretary of State William P. Rogers, 91st Cong., 2d Sess., 1970; 63 Dep't State 
Bull. 273 [1970]). Because of a disagreement as to coverage, the Senate had not acted on the Protocol for four 
years. 

On 5 August 1974, by a 315-70 vote, the House of Representatives passed House Res. No. 1258, declaring 
the sense of the House that the United States should ratify the 1925 Geneva Protocol and that "the President 
and the Congress should resolve the position of the United States on the future status of herbicides and tear 
gas so that the Senate may move toward ratification...." 120 Congressional Record H 7651-56, 7673 (daily ed. 
5 August 1974). See U.S., Congress, House, Committee on Foreign Affairs, Ratification of the Genera Protocol 
of 1925, H. Rep. 93-1257, 93d Cong., 2d Sess., 1974. The Protocol has now been ratified by the United 
States and will soon enter into force for it. For an account of the Senate action leading to its advice and consent 
to ratification, see Introduction, p. 17 and n. 37. 

2. Howard Levie, "Some Major Inadequacies in the Existing Law Relating to the Protection of 
Individuals During Armed Conflict," in When Battle Rages, How Can Law Protect?, ed. John Carey, 
Hammarskjold Forum Series, no. 14 (Dobbs Ferry: Oceana Publications, for the Association of the Bar of the 
City of New York, 1971), p. 18. 

3. Contrary to the statement that appears in Seymour Hersh, Chemical and Biological Warfare: America's 
Hidden Arsenal (New York: Doubleday & Company, 1969) p. 51, the "S" in CS does not stand for "super." 
The name is derived from its codevelopers, B. B. Corson and R. W. Staughton, as reported in Stewart 
Blumenfeld and Matthew Meselson, "The Military Value and Political Implications of the Use of Riot Control 
Agents in Warfare," in The Control of Chemical and Biological Weapons, ed. A. Alexander et al. (New York: 
Carnegie Endowment for International Peace, 1971), p. 68 (hereafter cited as Control of Chemical and Biological 
Weapons). 

4. U.N., CB Weapons, paras. 44 and 153. 

5. Ibid., para. 147. In Blumenfeld and Meselson, "Military Value," in Control of Chemical and Biological 
Weapons, p. 69, the statement is made that "for CS the difference between an incapacitating exposure and one 
that might produce serious lasting effects is quite large, a factor of many thousands." 

6. A frequently quoted statement is that made by the United States representative (James M. Nabrit, Jr.) 
during a debate in the United Nations General Assembly on 5 December 1966. He said: "It would be 
unreasonable to contend that any rule of international law prohibits the use in combat against an enemy, for 
humanitarian purposes, of agents that Governments around the world commonly use to control riots by their 
own people" (Documents on Disarmament [Washington, D.C.: United States Arms Control and Disarmament 



Weapons of Warfare 1 99 

Agency, 1966], p. 801). A much-publicized domestic use of CS was in the riot at the Attica Correctional 
Facility in New York during 1971 (see New York Times, 14 September 1971, p. 1). 

7. Blumenfeld and Meselson, "Military Value," in Control of Chemical and Biological Weapons, pp. 67-68. 

8. Ibid., pp. 71-75. See also testimony of Matthew Meselson, Senate Subcommittee on Refugees, 
Hearings on War-Related Civilian Problems in Indochina, 92d Cong., 1st Sess., April 1971, pp. 133-37; Professor 
Meselson's testimony and preliminary report, Herbicide Assessment Commission, American Association for 
the Advancement of Science, "The Effects and Use of Herbicides in Vietnam," U.S., Congress, Senate, Foreign 
Relations Committee, Hearings on Geneva Protocol of 1925, 92d Cong., 1st Sess., March 1971, pp. 353-77; and 
testimony of Admiral Lemos, U.S., Congress, House, Subcommittee on National Security Policy and Scientific 
Developments of the House Committee on Foreign Affairs, Hearings on Chemical-Biological Weapons, 91st 
Cong., 1st Sess., November and December 1972, pp. 225-28. 

9. George Bunn, "Banning Poison Gas and Germ Warfare: Should the United States Agree?" [1969] 
Wis. L. Rev. 405-6. Ann Van Wynen Thomas and A.J. Thomas, Jr., Legal Limits on the Use of Chemical and 
Biological Weapons (Dallas: Southern Methodist University Press, 1970), p. 149, find that "the tear gas remains 
a nonlethal agent. The actual killer is the fragmentation bomb." 

10. Meselson testimony, Hearings on Geneva Protocol of 1925, pp. 353-57. The House Committee on 
Foreign Affairs recommended in its report on H. Res. No. 1258 that the Senate consider exercising its 
Constitutional prerogative to ratify the 1925 Geneva Protocol without the interpretation made by the 
Administration that the treaty does not cover herbicides and tear gas (House Foreign Affairs Committee, 
Geneva Protocol of 1925, p. 4). See also testimony of Professor Richard R. Baxter, U.S., Congress, House, 
Subcommittee on National Security Policy and Scientific Developments, Committee on Foreign Affairs, 
Hearings on U.S. Chemical Warfare Policy, 93d Cong., 2d Sess., 7 May 1974, pp. 139-40. 

11. The English version of the Protocol uses the words "asphyxiating, poisonous or other gases." The 
word "other" has been interpretated by some writers to include gases that are not asphyxiating or poisonous. 
The French version of the Protocol uses the words "gaz asphyxiants, toxiques ou similaires." The word 
"similaires" has been interpreted by some writers to limit the coverage to gases that are "asphyxiants" or 
"toxiques." For an excellent discussion of this problem in semantics see Henri Meyrowitz, Les Armes biologiques 
et le droit international (Paris: Editions A. Pedore, 1968), pp. 38-45. 

12. See, for example, "Report by Secretary of State William P. Rogers to President Richard M. Nixon, 
11 August 1970," 63 Dep't State Bull 273, 274 (1970); Greenspan, Modem Law of Land Warfare, p. 359. 

13. See, for example, Oppenheim, International Law, ed. Lauterpacht, p. 344, n. 1; Richard R. Baxter and 
Thomas Buergenthal, "Legal Aspects of the Geneva Protocol of 1925," in Control of Chemical and Biological 
Weapons, p. 14 (also published in 64 A.J. I. L. 853, 866 [1970]). In 1930 the British government expressed 
the opinion that the use of tear gas was banned by the Protocol (Oppenheim, International Law, ed. Lauterpacht, 
p. 344, n. 1). In 1970 it reversed its stand (New York Times, 3 Feb. 1970, p. 3). 

14. Baxter and Buergenthal, "Legal Aspects," in Control of Chemical and Biological Weapons, p. 3. 

15. For authorities supporting the existence of such a norm, see ibid., p. 32, n. 8; contrary, see Denise 
Bindschedler-Robert, "A Reconsideration of the Law of Armed Conflicts," in Law of Armed Conflicts. 

16. Oppenheim, International Law, ed. Lauterpacht, p. 344. 

^17. Stone, Legal Controls, p. 556. 
18. While some of the extreme antiwar organizations insisted that they had identified cases in which 
individuals had been killed by CS, the more responsible scientists do not agree. See notes 4 and 5 above. 
Moreover, CS has been used in literally hundreds of cases of domestic disturbances with no deaths being 
charged to it. 

19. Bunn, "Banning Poison Gas," p. 404. Unfortunately, even a specific ban on the use of tear gas in 
international armed conflict would have no effect in this area because of its use for domestic riot-control 
purposes throughout the world. 

20. Stone, Legal Controls, p. 556-57. 

21. Bunn, "Banning Poison Gas," p. 404. 

22. Matthew Meselson, "Ethical Problems: Preventing CBW," in CBW: Chemical and Biological Warfare, 
ed. Steven Rose (Boston: Beacon Press, 1969) p. 167. In World War I tear gas was used as early as 1914. It 
did not prove effective and it was followed in 1915 by the more effective lethal gases. 

23. 61 Dep't State Bull. 541 (1969). With several stated exceptions, the United States has now done this. 
See Introduction, p. 17 and n. 37. 

24. Victor Sidel, "Napalm," in CBW, ed. Rose, p. 45. 

25. Ibid., p. 44. 

26. U.N., CB Weapons, para. 19. See also Sidel, "Napalm," in CBW, ed. Rose; and Baxter and 
• Buergenthal, "Legal Aspects," in Control of Chemical and Biological Weapons, p. 33, n. 10. 

27. 8 Int'l Rev. Red Cross 473 (1968). 



200 Levie on the Law of War 

28. ICRC, Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflict: Report to the 
Twenty -first International Conference (Geneva: ICRC, 1969), p. 61. To the same effect see, for example, Ian 
Brownlie, "Legal Aspects of CBW," in CBW, ed. Rose, p. 150, and Van Wynen Thomas and Thomas, Legal 
Limits, p. 185. 

29. ICRC, Reaffirmation and Development, pp. 61-62. 

30. This contention is based upon the provisions of art. 23(e) of the Hague Regulations. 

31 . I have previously recommended that the use of napalm in international armed conflict be prohibited. 
See Levie, "Some Major Inadequacies," in When Battle Rages, ed. Carey, pp. 20-21. (In so doing, I erroneously 
classified napalm as a chemical weapon. This was, however, irrelevant to the recommendation.) 

32. This suggestion was made in the report of the U.N. Secretary-General, Respect for Human Rights in 
Armed Conflict, U.N. Doc. A/8052 (1970), para. 126. Since the foregoing was written, the U.N. General 
Assembly has made such a request of the Secretary-General in G.A. Res. 2852, 28 U.N. GAOR Supp. 29, 
p. SO, U.N. Doc. A/8429 (1971); the Secretary-General appointed a group of government experts, which, 
incidentally, did not include a representative of the United States, and the experts prepared and filed a Report 
(Report of the Secretary-General, Napalm and Other Incendiary Weapons and All Aspects of Their Possible Use, 
U.N. Doc. A/8803/Rev. 1 [1973]). The final paragraph of that report states: "193. ...[I]n view of the facts 
presented in the report, the group of consultant experts wishes to bring to the attention of the General Assembly 
the necessity of working out measures for the prohibition of the use, production, development and stockpiling 
of napalm and other incendiary weapons." A finding of "the necessity of working out measures for the 
prohibition for the use, production, development and stockpiling of napalm" would appear to confirm the 
conclusion reached in the text that there is currently no rule of international law that prohibits the use of 
napalm upon selected targets. 

33. Judge Advocate General Myron C. Cramer to the Secretary of War, SPJGW 1945/164, March 1945, 
Memorandum concerning Destruction of Crops by Chemicals, 10 Int'l Leg. Mat. 1304 (1971). 

34. Bunn, "Banning Poison Gas," pp. 408-9. 

35. David E. Brown, "The Use of Herbicides in War: A Political/Military Analysis," in Control of Chemical 
and Biological Weapons, pp. 39-40. 

36. It has been estimated that "vertical visibility improves in sprayed areas by 60 to 90 percent and ground 
visibility by a lesser amount" (Brown, "Use of Herbicides," in Control of Chemical and Biological Weapons, p. 
46). See also John Constable and Matthew Meselson, "The Ecological Impact of Large Scale Defoliation in 
Vietnam," 56 Sierra Club Bull. 4 (1971). 

37. Testimony of Admiral Lemos, Hearings on "Chemical-Biological Weapons," pp. 239-30. 

38. See, for example, Baxter and Buergenthal, "Legal Aspects," in Control of Chemical and Biological 
Weapons, p. 16. 

39. Arthur Galston, "Defoliants," in CBW, ed. Rose, p. 62. 

40. Bunn, "Banning Poison Gas," p. 407; Cramer, SPJGW 1945/164, supra. 

41 . Bindschedler-Robert, "Reconsideration," in Law of Armed Conflicts, p. 36. To the same effect see U.S. 
Army Field Manual 27-10, para. 37(b). 

42. Continuing with the quotation cited in note 6 above, Mr. Nabrit said: "Similarly, the Protocol does 
not apply to herbicides, which involve the same chemicals and have the same effects as those used domestically 
in the United States, the Soviet Union and many other countries to control weeds and other unwanted 
vegetation" (Documents on Disarmament, p. 801). 

43. Baxter and Buergenthal, "Legal Aspects," in Control of Chemical and Biological Weapons, p. 14. 

44. The legality of the use of shotguns in international armed conflict was the subject of controversy during 
World War I. See Oppenheim, International Law, ed. Lauterpacht, p. 340, n. 4. Certainly, no one would contend 
for their legality in international armed conflict solely because they are legal for hunting in most countries. 

45. Baxter and Buergenthal, "Legal Aspects," in Control of Chemical and Biological Weapons, p. 15. 

46. See, for example, Georg Schwarzenberger, The Legality of Nuclear Weapons (London: Stevens & Sons, 
1958), pp. 37-38. 

47. U.N., CB Weapons, para. 311. Of course, had the trees been uprooted and destroyed by high explosive 
shells or aerial bombs, the regrowth period would probably have been equally long. Strangely, no one wept 
for the millions of coconut palms destroyed by gunfire and aerial bombs in the Pacific during world War II. 

48. Galston, "Defoliants," in CBW, ed. Rose, p. 63. 

49. Fred Warner Neal, "The Nazis Had Their Nuremberg, Americans Will Have Their — Election," 1 1 
War/Peace Report 16 (August-September 1971) (review of Albert Speer, Inside the Third Reich [New York: 
Macmillan, 1970]). The report to which Warner refers is Stanford Biology Study Group, The Destruction of 
Indochina (1970). 

50. New York Times, 29 August 1971, p. 8. 

51. Sec note 23 above and Introduction, p. 17 and n. 37. 



Weapons of Warfare 201 

Weapons of Warfare 
Addendum 

At the time that this article was written in 1970, the United States, after half 
a century, had finally ratified the 1925 Geneva Gas Protocol although it was not 
yet in force for this country. However, many of the questions of law with respect 
to the use of the weapons referred to in the basic article continue to exist. 
Discussions of some of the developments in these matters will be found in the 
articles entided "Nuclear, Chemical, and Biological Weapons" and 
"Prohibitions and Restrictions on the Use of Conventional Weapons" in the 
present collection. 

In 1976 the General Assembly of the United Nations adopted the Convention 
on the Prohibition of Military or any Other Hostile Use of Environmental Modification 
(better known as the ENMOD Convention). This Convention entered into force 
on 5 October 1978. The United States is a Party. 



The Falklands Crisis and 
the Laws of War 

The Falklands War: Lessons for Strategy, Diplomacy and 
International Law 64 (Alberto R. Coll and Anthony C. Arend eds., 1985) 



One week before the Argentine surrender at Port Stanley, the 
well-respected British news journal, The Economist, published an article 
captioned "War Laws — Made To Be Broken." After discussing a number of 
provisions of the laws of war which the writer, obviously not an expert in the 
field, thought had been violated during the course of the hostilities, he ended 
up with this alarming conclusion: "These, and no doubt other matters not yet 
to appear, will be the subject of anguished inquiry, once the fighting ends." 
Despite such contentions, the laws of war were more widely observed in the 
Falklands crisis than in any other conflict since World War II. This essay will 
analyze several law-of-war problems that arose during the hostilities, and will 
illustrate the degree to which both belligerents succeeded in observing legal 
norms of combat without any significant military disadvantage. 

Maritime Exclusion Zone 

The Argentine invasion of the Falkland Islands began on 2 April 1982. Great 
Britain broke off diplomatic relations that same day; but it was not until 7 April 
1982, five days later, that Great Britain took its first real retaliatory step, 
announcing that as from 12 April 1982 it was establishing a "maritime exclusion 
zone" 200 miles around the Falkland Islands, and that any Argentine warships 
and naval auxiliaries thereafter within that zone "will be treated as hostile and 
are liable to be attacked by British forces." On the following day Argentina 
responded by establishing a 200-mile defense zone off its coast and around the 
Falklands. 

When the British announcement was made the impression was given, and it 
was generally understood, that the British nuclear submarine Superb was on 

* The facts presented in this essay were drawn primarily from Christopher Dobson, 
THE FALKLANDS CONFLICT (1982), and from press reports contained in such 
publications as THE ECONOMIST, U.S. NEWS & WORLD REPORT, TIME, the NEW 
YORK TIMES, and others for the period of 1 April to 1 July 1982. 



204 Levie on the Law of War 

station in that area and this was undoubtedly the major reason for the failure of 
the Argentine fleet to emerge from its base at Puerto Belgrano, south of Buenos 
Aires. There were later complaints that the press, as well as the Argentines, had 
been intentionally misled when it was discovered that the Superb was at its base 
in Scotland. However, this was a perfectly valid and successful piece of 
"disinformation" by the British. 

Since the 1856 Declaration of Paris it has been a settled rule of maritime 
warfare that a blockade, in order to be binding, must be effective; that is, the 
blockading belligerent must be able to enforce its announced blockade. The 
British declaration was not really a blockade, as merchant ships and neutral vessels 
were not barred from the exclusion zone; it only applied to enemy naval vessels. 
It was, therefore, nothing more than a gratuitous warning to the Argentine naval 
forces. A state of armed conflict certainly existed between Argentina and Great 
Britain and, hence, the armed forces of each, including naval vessels, were, apart 
from some limitations not here applicable, subject to attack wherever found. In 
any event, if, by disinformation, a belligerent can convince the enemy (and 
neutrals) that there is an effective blockade in existence, then there is an effective 
blockade. 

On 23 April the British informed the Argentine government that "any 
approach on the part of Argentine warships, submarines, naval auxiliaries or 
military aircraft which would amount to a threat to interfere with the mission 
of British forces in the South Adantic would encounter the appropriate 
response." At the same time it stated that "all Argentine vessels, including 
merchant vessels or fishing vessels apparently engaged in surveillance of or 
intelligence gathering activities against British forces in the South Adantic, would 
also be regarded as hostile." Then on 30 April the British extended their maritime 
exclusion zone to include "any ships and any aircraft" found therein. This was 
now a true blockade — and, presumably, there were now British submarines on 
station in the area prepared to enforce the declaration. So far as is known, only 
one Argentine support ship, the Formosa, managed thereafter to reach the 
Falkland Islands. A number of military cargo aircraft were also successful in 
reaching their destination before the British carriers arrived in the area. It is 
interesting to note that sometime after the hostilities had ended a United Press 
International dispatch from Buenos Aires quoted an Argentine general as saying 
that the British air and sea blockade "was a success, a total success." 

On 2 May the Argentine cruiser, General Belgrano, was sunk by a British 
submarine with a loss of almost 400 lives. The exact location of the Belgrano at 
the time of the attack has not been officially disclosed, but there have been 
suggestions that it was about 35 miles outside the maritime exclusion zone. 
Certainly, a cruiser of a belligerent has no right to consider itself immune from 
enemy attack because it is on the high seas beyond the range of a proclaimed 



The Falklands Crisis 205 

maritime exclusion zone. Great Britain justified its action by pointing out that 
the cruiser was a threat to its picket ships, frigates, and destroyers, and that it had 
previously advised the Argentine government of the establishment of a defensive 
zone around units of the British fleet which the Belgrano had disregarded. 
Sympathy for the Argentine loss, and the feeling that the British had somehow 
been "unfair," were quickly dissipated when, two days later, on 4 May anExocet 
missile fired by an Argentine plane hit and sank the British destroyer Sheffield 
with a loss of about twenty lives. 

On 7 May the British extended their war zone to 12 miles off the Argentine 
coast. This blockade was completely effective, made so by the Argentine fear 
that if its fleet sortied from its base it would be the victim of the British nuclear 
submarines which were now, beyond any doubt, patrolling the waters off the 
coast of Argentina outside the twelve-mile limit. However, on 1 5 May the 
Soviet Ambassador in London advised the British government that the Soviet 
Union considered the British blockade to be unlawful because it "arbitrarily 
proclaimed(ed) vast expanses of the high seas closed to ships and craft of other 
countries," citing the 1958 Convention on the High Seas as the basis for its 
claim. Of course, a blockade always denies the use of part of the high seas to 
other countries. While the Soviet Union might have questioned the extent of 
the blockaded area as excessive, if the blockade was effective (and there seems 
little doubt that it was), it was a valid blockade under the 1856 Declaration of 
Paris, to which Russia was one of the original parties. 

Fishing Vessels 

In 1900 the United States Supreme Court held that by customary 
international law fishing vessels were exempt from seizure by enemy naval forces 
in time of war. In 1907 this rule was incorporated into the Hague Convention 
No. XI. Article 3 (1) of that Convention says, in part, that "[vjessels used 
exclusively for fishing along the coast . . . are exempt from capture." Paragraph 
2 of that same article goes on to qualify that provision by stating that "[t]hey 
cease to be exempt as soon as they take any part whatsoever in hostilities." As 
we have already seen, on 23 April 1982 the British government informed the 
Argentine government that, among other things, "fishing vessels apparently 
engaged in surveillance or intelligence gathering activities" would be regarded 
as hostile. This statement was really unnecessary as it was merely another 
declaration of the British intention to apply existing law. 

On 9 May 1982 the Argentine fishing vessel Narwal was attacked by British 
forces and was so severely damaged that she sank on the following day. At the 
time of the attack she was about 60-70 miles within the British maritime 
exclusion zone, shadowing British fleet units. According to one report: "She 
was not armed but she was a spy ship with an Argentine Navy Lieutenant 



206 Levie on the Law of War 

Commander on board sending back information about the [British] fleet's 
movements."" The Argentines have not denied that allegation. That being so, 
the Narwal had lost her immunity and was legally subject to the treatment which 
she received. 

Hospital Ships 

Shordy after hostilities in the Falklands began, the British government 
requisitioned the SS Uganda, a vessel previously used for education cruises for 
schoolchildren, converting it into a hospital ship. There were allegations that en 
route to the South Adantic the Uganda carried combat troops. If such allegations 
are true, this was a violation of articles 30 (2) and 33 of the Second Geneva 
Convention of 1949 on the treatment of sick and wounded sailors. While extra 
medical personnel may be carried on hospital ships, combat troops may not be. 
The fact that after the combat troops were debarked the vessel was used 
exclusively for proper purposes does not change the situation. When a hospital 
ship is used for improper purposes it ceases permanendy to be entided to the 
immunity granted to such ships. During both World Wars there were numerous 
claims of the misuse of hospital ships and rejection of their subsequent 
entidement to immunity. It appears that such claims are inevitable and that, all 
too often, they will be justified. 

The Economist (5 June 1982, p. 20) asserted that by bringing the Uganda into 
Falkland Sound at night to pick up wounded and shipwrecked Argentine soldiers 
the British "may have breached" the provision that hospital ships must "be 
situated in such a manner that attacks against military objectives cannot imperil 
their safety." The reporter or editor who wrote that article was obviously not 
very familiar with the laws of war. He cited the First Geneva Convention of 
1949, which is concerned with land warfare, not sea warfare; and the provision 
he quoted relates to the placement of medical establishments and units on land, 
not to hospital ships. Article 18 (1) of the Second Convention makes it 
mandatory that " [ a]fter each engagement, Parties to the conflict shall, without 
delay, take all possible measures to search for and collect the shipwrecked, 
wounded and sick." This is presumably what the Uganda was doing in the Sound, 
and it is one of the humanitarian functions of every hospital ship. 

Incendiary Weapons 

Among the Argentine material captured by the British on the Falkland Islands 
was a large supply of napalm, one of the most effective incendiary weapons in 
military arsenals. This caused a great deal of critical comment in the British press. 
Actually, even under the provisions of Protocol III of the still unratified 1980 
Conventional Weapons Convention, incendiaries such as napalm are not 



The Falklands Crisis 207 

outlawed, only their mode of use is restricted; and since those restrictions are all 
directed towards the protection of civilians, it does not appear that they would 
have been violated by Argentine use against British combat troops. 

Protecting Powers 

Diplomatic relations between Argentina and Great Britain were broken off 
on 2 April 1982, immediately after the news of the Argentine landings on the 
Falklands reached London. Shortly thereafter Great Britain requested the Swiss 
government to act as its Protecting Power vis-a-vis Argentina, presumably 
pursuant to Common Article 8/8/8/9 of the four 1949 Geneva Conventions, 
while the Argentine government requested Brazil to act in that capacity on its 
behalf. Even though they performed no major functions in the military area, 
this is of extreme importance in view of the fact that it was the first clear-cut 
instance of the use of Protecting Powers since World War II, despite the 
innumerable international armed conflicts which have occurred in the interim. 
There were, for example, no Protecting Powers in either Korea or Vietnam, 
and there do not appear to be any in the Iran-Iraq War. 

Civilians 

Civilians presented on the whole a physical rather than a legal problem. 
However, there were a number of rules of the laws of war which came into 
play. When resistance at Port Stanley ended on 2 April, Governor Rex Hunt 
(in full ceremonial dress with a white-plumed Napoleon-style hat), his wife, and 
his family were escorted to an Argentine Air Force plane and flown to 
Montevideo, Uruguay. The British Antarctic Survey Team's civilian scientists, 
based at Grytviken, on South Georgia, were also repatriated by the Argentines 
after a short delay. LADE, the airline which had been operated by the Argentine 
Air Force between Port Stanley and Commodoro Pdvadavia, in South 
Argentina, continued to fly after the Argentine takeover. While eighty to one 
hundred British subjects who were living on the islands as civilian employees of 
the British government elected to avail themselves of this method of departure 
with their families, only twenty-one "Kelpers" so elected; and when members 
of the Anglo-Argentine community in Argentina proposed that a neutral ship 
be sent to the islands to evacuate the 300 children to the mainland, it was the 
Falkland Islanders, not the Argentine government, who rejected the proposal. 

Article 35(1) of the Fourth Geneva convention of 1949 authorizes the 
departure of protected persons (civilians) from the territory of a party to the 
conflict. On the basis of the Argentine claim of sovereignty over the Falkland 
Islands and their dependencies, this article would have been applicable. 
However, if we adopt the thesis of British sovereignty, then the departure of 



208 Levie on the Law of War 

those who left the islands was an act of grace by Argentina since article 48 of 
that Convention, relating to occupied territory, only requires the Occupying 
Power to permit the departure of protected persons who are not nationals of 
the power whose territory is occupied — and all but thirty of the Falkland 
Islanders and other residents were British nationals. (The other thirty were 
Argentines.) One British subject, William Luxton, was deported, probably 
because he was considered to be a subversive influence; several others were 
apparently placed in a detention center at Fox Bay. Article 41 (1) of the Fourth 
Convention states that the only measures of control which the Occupying Power 
may adopt with respect to protected persons are assigned residence and 
internment. Deportation is specifically prohibited by article 49 (1) of the 
Convention but it may be assumed that Mr. Luxton preferred it to internment. 
Article 42 (1) of the Convention authorizes internment if the security of the 
Occupying Power makes it necessary — a decision which, of course, is a 
subjective one made by that power. Accordingly, the action of the Argentines 
in this respect was within the purview of and in accordance with the provisions 
of the Convention. 

There were estimated to be 17,000 British passport-holders in Argentina 
when hostilities commenced on 2 April 1982. The Argentine government 
announced that it would guarantee the safety of these individuals. Nevertheless, 
on 5 April the British government broadcast a radio message recommending 
that they leave the country. How many did so is unknown but there is no 
evidence that the Argentine government made any effort to prevent them from 
exercising the right granted to them by article 35 of the Fourth Convention, 
mentioned above, to leave the territory of a party to the conflict. 

Argentina claimed in a television broadcast that the British were guilty of 
"indiscriminate bombing" of Port Stanley as a result of which two civilians were 
killed and four were wounded. Inasmuch as more than 10,000 members of the 
Argentine military forces were crowded into the area of that small town (normal 
population: 1,050), with somewhere between 250 and 600 civilians who had 
remained in their homes, the civilian casualties appear to have been remarkably 
light. Certainly, the British bombardment and bombing of the Argentine 
personnel and positions in Port Stanley cannot be said to have violated any 
provision of the 1907 Hague Regulations on Land Warfare, 1907 Hague 
Convention No. IX on Naval Bombardment, or the as-yet inapplicable 1977 
Protocol I. The residents of Port Stanley were British nationals and were the 
persons on whose behalf the British forces had traveled 8,000 miles to fight and 
there is no reason to believe that the British commanders did not exercise the 
utmost caution on their behalf. Thus, when, on 13 June 1982, the International 
Committee of the Red Cross (ICRC) proposed the creation of a "neutral zone" 
for the protection of the civilians still in Port Stanley, the British immediately 



The Falklands Crisis 209 

agreed. The Argentines did so on the following day and the ICRC announced 
that it had arranged for such a zone. 

Prisoners of War 

Article 13 (1) of the Third Geneva Convention of 1949 provides that 
; '[p]risoners of war must at all times be humanely treated." Although there were 
undoubtedly individual cases in which this provision was violated during the 
hostilities in the Falkland Islands, on the whole the treatment of prisoners of 
war, first by the Argentines and later by the British, more closely resembled the 
Russo-Japanese War of 1904-5 than either World War I, World War II, Korea, 
or Vietnam. In this respect, as in others, the war was fought as a "gendemen's 
war." Thus, although article 118 of the Third Convention merely requires the 
release and repatriation of prisoners of war "without delay after the cessation of 
active hostilities," the Royal Marines captured on both the Falkland Islands and 
on South Georgia were repatriated almost immediately by the Argentines. So 
also were two Royal Air Force technicians captured at the airfield at Port Stanley, 
men who were able to provide the British with valuable intelligence 
information. 

When the British began to take prisoners of war, first on South Georgia and 
then on the Falkland Islands, they followed the pattern established by the 
Argentines of promptly repatriating them. In fact, the practice was so regular 
and so prompt that it aroused the ire of the Royal Navy when the entire crew 
of the Argentine submarine Santa Fe, captured by the British at South Georgia, 
was quickly returned to Argentina. As one report stated, "to give the Argentines 

A 

back a fully trained crew of submarine specialists seemed the height of folly." 

We have seen that article 118 of the Third Convention requires the 
repatriation of prisoners of war "without delay after the cessation of active 
hostilities." Despite this clear provision, India held Pakistani prisoners of war for 
over two years after the complete cessation of active hostilities, from December 
1971 to March-April 1974, allegedly because there was no guarantee that 
hostilities would not break out again, but actually as political hostages in an effort 
to compel Pakistan to recognize Bangladesh. Contrary to the procedure followed 
by India, which flagrantly violated the Convention provision, Great Britain 
began the repatriation of Argentina prisoners of war immediately after the final 
surrender of the Argentine forces on the Falklands. At first the British sought to 
obtain a statement from Argentina acknowledging the cessation of active 
hostilities. Even though such an acknowledgment was not forthcoming, the 
British quickly repatriated over 10,000 prisoners of war, retaining about 550 
officers, including the Argentine commander on the Falklands, General 
Menendez. Within a month, despite the Argentine government's refusal to 



21 Levie on the Law of War 

admit to a complete cessation of hostilities, the remaining prisoners of war were 
returned by the British. 

There were some instances in which it has been suggested that the provisions 
of the Third Convention may have been violated. When the Royal Marines at 
Port Stanley surrendered they were required to He on the ground, face down, 
under guard while they were being searched for weapons. Photographs were 
made of that scene. It has been implied that the taking of those photographs 
violated article 13(2) of the Convention which requires that prisoners of war be 
protected against "insults and public curiosity." Inasmuch as hundreds of 
photographs have been taken and published in every war of the moment of 
surrender, hands held high in the air, and full-faced, with no complaints by the 
belligerents, and inasmuch as it is impossible to recognize any particular 
individual in the Falklands picture, there is at least a reasonable doubt that the 
photograph violated article 13 (2) of the Convention. 

One Argentine naval sub-officer was shot and killed while a prisoner of war, 
while apparently attempting to sabotage the captured submarine Santa Fe. The 
British immediately informed the Argentine government of the incident through 
the medium of the International Committee of the Red Cross and instituted a 
Court of Inquiry, presumably pursuant to article 121 of the Third Convention. 
The Argentine government was advised of the result reached by that court, 
which exonerated the British guard, and apparendy it was satisfied that justice 
was done. 

As in all modern armed conflicts, land mines were used in the Falklands in 
great profusion; at the end of hostilities, their removal became a major problem. 
Article 7 of Protocol II to the as yet unratified 1980 Conventional Weapons 
Convention contains provisions for the recording of the location of minefields. 
Apparently, as is not unusual in modern warfare, this was not done in many 
instances by the Argentines, with the result that the locating and removal of the 
numerous buried mines became a slow, painstaking, and dangerous procedure. 

After World War II large numbers of captured German soldiers were retained 
in France for the purpose of removing mines, and a substantial number were 
killed or injured in the process. As a result, article 52(1) of the Third Convention 
specifically provides that only prisoners of war who volunteer for the task may 
be employed on labor which is of a dangerous nature, and the third paragraph 
of that article provides that the removal of "mines and similar devices" is to be 
considered dangerous. It has been asserted that captured Argentine soldiers were 
"ordered" to clear minefields near Goose Green. If this was so, it constituted a 
clear violation of the provisions of the Convention. If they were volunteers, it 
did not. 

Article 117 of the Third Convention provides that "[n]o repatriated person 
may be employed on active military service." While the meaning of this phrase 



The Falklands Crisis 21 1 

is subject to numerous interpretations there can be no doubt that it precludes 
the use of repatriated personnel in actual combat. There are charges that some 
Royal Marines, captured by the Argentines on South Georgia and repatriated 
to Great Britain, were subsequently included in the British Task Force. If this 
was so, it was a violation of the provisions of the Convention. 

One interesting episode occurred with respect to prisoners of war. When 
Captain Alfredo Astiz, the commander of the Argentine forces on South 
Georgia, surrendered to the British forces on 22 April 1982, he and the 
commander of the Santa Fe, the Argentine submarine which had been captured 
that morning, were entertained at dinner by the British officers. Subsequently, 
it was alleged that Captain Astiz was the infamous "Captain Death," one of the 
most sadistic of the government's interrogators during the suppression of the 
guerrilla movement in Argentina some years before. Sweden wanted to question 
him concerning eyewitness reports that he had shot a young Swedish girl. France 
wanted to question him concerning the disappearance of two French nuns. This 
raised an interesting question of law. The offenses were alleged to have occurred 
in Argentina long before the beginning of the hostilities between Argentina and 
Great Britain. Assuming that they constituted violations of article 3 of the Fourth 
Convention, dealing with non-international armed conflicts, can a Detaining 
Power in a subsequent international armed conflict turn over a prisoner of war 
to a third state, a party to the Conventions, for possible trial and punishment? 
The British answered that question in the negative, rejecting the Swedish and 
French requests. Whether that decision was correct remains an open question. 
After being taken to Great Britain, where he was subjected to what has been 
described as a "token" interrogation, Captain Astiz was repatriated. 

Mercenaries 

One of the most difficult problems which confronted the Diplomatic 
Conference drafting the 1977 Protocol I involved proposals seeking to eliminate 
the use of mercenaries. Under the definition now contained in article 47 of that 
instrument, one of the requirements for categorizing an individual as a mercenary 
is that he "is motivated to take part in the hostilities essentially by the desire for 
private gain and, in fact, is promised by or on behalf of a Party to the conflict, 
material compensation substantially in excess of that promised or paid to 
combatants of similar ranks and functions in the armed forces of that Party." 

The Gurkha Rifles have been part of the British Army for well over 100 
years. They are recruited from an ethnic group which lives in what is now Nepal. 
During World War II there were 100 battalions of Gurkhas in the British Army; 
today there are five such battalions. When it became known that the 7th Gurkha 
Pdfles was being sent to the Falklands, Argentina protested to Nepal. Whether 
that protest was based on the allegation that the Gurkhas were serving the British 



21 2 Levle on the Law of War 

as mercenaries, or was made merely because they were Nepalese citizens, is not 
known. The Gurkhas are certainly motivated by the desire for private gain. They 
serve the required number of years, and then retire in Nepal as relatively 
prosperous citizens. However, inasmuch as they receive a considerably smaller 
pay than do British soldiers, it is doubtful that they come within the definition 
of mercenaries. 

Neutrals and Neutrality 

Prior to World War II, during hostilities there was a dichotomy under which 
all states in the world community were either belligerents or neutrals, with 
well-established rules applicable to each status. At various times in the course of 
World War II, Italy and Spain, and perhaps others, announced that they were 
"non-belligerents." That term can be defined best by saying: "I hope that you 
win, and I will do everything I can to help you, except fight." During the 
Anglo-Argentine hostilities in the Falkland Islands, the United States did not 
officially use the term "non-belligerent," but that was undoubtedly its status. 
After Secretary Haig failed in his peacemaking efforts, the United States 
announced its support of Great Britain which included a willingness to supply 
any military aid short of direct involvement of American combat forces. On 29 
April 1982 the United States Senate adopted a resolution in which it declared 
that "the United States cannot stand neutral." Five days later, on 4 May, the 
United States House of Representatives adopted a similar resolution in which 
it expressed "full diplomatic support of Great Britain in its efforts to uphold the 
rule of law." In the course of the war the United States furnished the British 
with a secure method of communication with its nuclear submarines in the war 
zone, weather information, aviation fuel, use of the airfield on Ascension Island, 
ammunition and missiles, and KC-135 tanker planes. A request for AWACS 
was refused because it would have involved American airmen in the hostilities. 
Whether the United States acted in accordance with the rules of neutrality which 
existed prior to World War II is, at the very least, questionable. 

There was speculation that, despite the strong anticommunist stance of the 
Argentine junta, it was receiving aid of various kinds from the Soviet Union. It 
can be assumed that if the Soviet Union considered the granting of such aid to 
be in its own interests, it would not have found it impossible to overlook the 
ideological differences. The USSR abstained on, but did not veto, United 
Nations Resolution 502, calling for Argentina to withdraw its forces from the 
Falkland Islands. The Soviets also employed surface vessels and planes from 
Angola and Cuba for surveillance of the British Task Force as it sailed towards 
the South Adantic. This, however, may have been routine since Soviet ships 
and planes do this with respect to all naval movements of Western powers; there 
is no hard evidence that the USSR passed the information so obtained to the 






The Falklands Crisis 213 

Argentines. In fact, it has been suggested, with a good deal of reason, that had 
the Soviet Union been doing so the Narwal would never have been sent on the 
suicidal spy mission in which it was engaged when it was sunk by the British. 

Implications for the Laws of War 

In some important respects, the Falklands crisis offers much hope for the 
continued viability of the laws of war. Despite the intense nationalistic rivalries 
underlying it, the conflict illustrates that states can wage conventional warfare 
in compliance with the laws of war without thereby giving adversaries a 
substantial military advantage. But, on the other hand, one must be mindful of 
the peculiar qualities of the Falklands War that made it possible for the laws of 
war to exert their restraining influence. First, this was a limited war, fought for 
limited ends with limited means. For both parties the end was quite 
specific — control of a particular territory. This was not an abstract, hazy goal, 
but rather a concrete, easily recognizable objective. The means, too, were 
limited. The adversaries restricted their operations to the disputed territory, and 
refrained from military actions against the enemy's homeland; had it not been 
conducted otherwise, the war would have been much more violent and 
destructive and could have released the kind of political frenzy and hatred that 
weaken the observance of the laws of war. Second, the adversaries, despite 
obvious differences in political regimes, saw themselves as members of the same 
civilization, and shared many cultural affinities and bonds — some stretching over 
centuries. This helps to explain why the war was in many respects a "gendemen's 
war." Third, the conflict was brief. It is difficult to predict how well the laws of 
war would have been observed had this been a protracted struggle, filled with 
the usual weariness and mounting frustration against the enemy. It is an open 
question whether further conflicts that lack all these special characteristics will 
have as encouraging a record on the observance of the laws of war as did the 
Falklands War of 1982. 

Notes 

1. The Paquete Habana, 175 U.S. 677 (1900). 

2. Christopher Dobson, The Falklands Conflict (London: Hodder & Stoughton, 1982), p. 104. 

3. The Uganda may have been confused with the Canberra (New York Times, 28 May 1982, p. A8:4). In 
a letter dated 8 October 1982 Captain L. W. L. Chelton, R.N., Chief Naval Judge Advocate of the Royal 
Navy, advised the author that no British hospital ship carried combat troops to the South Atlantic; and that 
members of the International Committee of the Red Cross, carried thereon, could verify this. 

4. Dobson, The Falklands Conflict, pp. 156-7. 

5. The British were legally entitled to use the Ascension airfield under an agreement, "Use of Wideawake 
Airfield in Ascension Island by United Kingdom Military Aircraft," signed at Washington, 29 August 1962 
(13 UST 1917, TIAS 5148, 449 UNTS 177). 



XI 

Criminality in the Law of War 



1 International Criminal Law 233 (M. Cherif Bassiouni ed., 1986) 



There are two completely different aspects of the subject of criminality in 
the law of war insofar as prisoners of war are concerned — offenses 
committed before capture (pre— capture offenses or war crimes); and offenses 
committed after capture (post— capture offenses). Many of the rules applicable 
are similar or identical, but some are different. The two aspects of the problem 
are certainly worthy of separate treatment. They will be so treated and in the 
order mentioned. 

Pre— capture Offenses (War Crimes) 

Historical 

By offenses committed before capture we normally refer to violations of the 
law of war committed against the nationals, civilian or military, or the property, 
of the Capturing Power or of one of its allies. Despite a rather widespread 
misunderstanding on the subject, there was nothing new about the war crimes 
trials conducted after World War II except their numbers and the broad range 
of the offenses charged. One author has given considerable publicity to a case 
which occurred in 1474 in which an ad hoc international tribunal tried one Peter 
von Hagenbach for various crimes committed while he was in command of 
what might be termed a military occupation, although the war was yet to come. 
Hagenbach pleaded that he had only obeyed the orders of his master, the Duke 
of Burgundy. His defense was rejected, he was found guilty, and he was 
executed. 

After the termination of hostilities in the American Civil War (1861-1865), 
a conflict which had most of the characteristics of an international war, the 

Federal authorities conducted a number of trials of individuals for offenses 

2 
committed against Union prisoners of war during the course of the conflict. 

During the pacification of the Philippines which followed the acquisition of 

those islands by the United States as a result of the Spanish- American War (1 898) , 

a number of American officers were tried by American Army courts-martial for 

violations of the law of war. (This is another area where there is a good deal 



21 6 Levie on the Law of War 

of misunderstanding. While these men were tried for violations of specific 
provisions of the American Army's "Articles of War," the offenses for which 
they were tried were also violations of the law of war and their trials would have 
been denominated "war crimes trials" if they had been tried by an enemy, or 
an international court.) And at about this same period the British Army not only 
tried some of its own personnel for violations of the law of war committed 
during the hostilities in the Boer War (1899-1902), but the Treaty of 
Vereeniging (1902) which ended that conflict specifically provided for British 
courts-martial for certain Boers who had allegedly committed acts "contrary to 
the usages of war." 

After the end of World War I a "Commission on the Responsibility of the 
Authors of the War and on the Enforcement of Penalties" created by the 
Versailles Peace Conference recommended criminal prosecution for all persons, 
without distinction of rank, "who have been guilty of offenses against the laws 
and customs of war or the laws of humanity." The Peace Conference 
implemented that recommendation with Articles 228-230 of the Treaty of 
Versailles by which Germany recognized the right of the Allies to conduct trials 
for violations of the laws and customs of war and promised to hand over the 
individuals requested for trial by a requesting Ally. Public opinion prevented a 
weak German government from complying with those provisions and 
agreement was reached for trials to be conducted by the Supreme Court of 
Leipzig. The results of the twelve trials which were conducted were so 
unsatisfactory to the former Allies that they dropped the matter. This episode 
convinced most students of the problem that the Versailles solution to the 
problem was not a viable one. (The so-called "war crimes trials" conducted by 
the Federal Republic of Germany itself since the end of World War II do not 
disprove that conclusion. For the most part they have involved the trials of 
Germans for offenses against Germans, where no nationalism is involved; and 
when they were begun sufficient time had elapsed for a change of public attitude 
and a cooling of wartime patriotism.) 

Codification 

All that has been mentioned up to this point was in the realm of the customary 
law of war. In a 1906 Convention for the protection of the wounded and sick 
there was a provision by which the Parties agreed, if their laws were then 
insufficient, to seek from their legislatures 

"the necessary measures to repress, in time of war, individual acts of robbery or 
ill treatment of the sick and wounded of the armies, as well as to punish, as 
usurpations of military insignia, the wrongful use of the flag and brassard of the 



Criminality 217 

Red Cross by military persons or private individuals not protected by the present 
convention." 

This was, of course, a call for national legislation to provide for the 
punishment of certain specific war crimes. Little was done to implement this 
provision; but the 1929 version of this Convention went even further when the 
Parties agreed therein to seek from their legislatures 



"the necessary measures for the repression in time of war of any act contrary to 



the provisions of the present Convention." 



(For some reason there was no comparable provision in the prisoner-of-war 
convention drafted at the same time by the same Diplomatic Conference.) 

The first real international codification in this area, if such it can be called, 
was the 1945 London Charter drafted and signed by France, Great Britain, the 

Soviet Union, and the United States, to which 19 other states subsequently 

1 1 
adhered. It was, of course the basis for the Nuremberg Trial. A number of the 

other war crimes trials in Germany which followed World War II were based 

on an adaptation of the London Charter by the four Powers governing occupied 

12 
Germany, issued either jointly or severally. However, most of the several 

thousand war crimes trials which followed World War II, both in Europe and 

in the Pacific, were based on the customary law of war and were conducted by 

courts established by individual states. It was not until the drafting of the four 

1949 Geneva Conventions for the Protection of War Victims that we find true 

codification in this area of international law. Those Conventions contained two 

articles which, with appropriate and understandable differences, were common 

to all of them. The articles contained in the 1949 Third (Prisoners-of-War) 

Convention read as follows: 

Article 129 

The High Contracting Parties undertake to enact any legislation necessary to 
provide effective penal sanctions for persons committing, or ordering to be 
committed, any of the grave breaches of the present Convention defined in the 
following Article. 

Each High Contracting Party shall be under the obligation to search for persons 
alleged to have committed, or to have ordered to be committed, such grave 
breaches, and shall bring such persons, regardless of their nationality, before its 
own courts. It may also, if it prefers, and in accordance with the provisions of its 
own legislation, hand such persons over for trial to another High Contracting 
Party concerned, provided such High Contracting Party has made out a prima facie 
case. 



21 8 Levie on the Law of War 

Each High Contracting Parties shall take measures necessary for the suppression 
of all acts contrary to the provisions of the present Convention other than the 
grave breaches defined in the following article. 

In all circumstances, the accused persons shall benefit by safeguards of proper 
trial and defense, which shall not be less favourable than those provided by Article 
105 and those following of the present Convention. 

Article 130 

Grave breaches to which the preceding Article relates shall be those involving 
any of the following acts, if committed against persons or property protected by 
the Convention: wilful killing, torture or inhuman treatment, including biological 
experiments, wilfully causing great suffering or serious injury to body or health, 
compelling a prisoner of war to serve in the forces of a hostile Power, or wilfully 
depriving a prisoner of war of the rights of fair and regular trial prescribed in this 
Convention. 

If you analyze the provisions of these two articles you will find that the Parties 
to these Conventions have: 

a. specifically established a number of substantive penal offenses which they have 
characterized as "grave breaches" of the Conventions; 

b. agreed to universal jurisdiction (of Parties to the Conventions) over those 
offenses; 

c. indicated that trials for "grave breaches" of the Conventions will be conducted 
by national courts; 

d. agreed that they will either themselves try any accused found in their territory 
or will extradite that accused to any other Party concerned who makes out a prima 

facie case (aut dedere aut punire); and 

e. guaranteed a fair trial for any person accused of having committed such a grave 
breach. 

The procedural rules relating to the trials and punishment of prisoners of war 
contained in the 1949 Third (Prisoner-of-War) Convention, set forth in some 
detail below in the discussion of post-capture offenses, would be equally 
applicable with respect to pre-capture offenses. However, it is probably 
appropriate to mention here that although Article 85 of the 1949 Third Geneva 
Convention provides that prisoners of war prosecuted for pre-capture offenses 
"retain, even if convicted, the benefits of the present Convention," a number 



Criminality 219 

of states have made reservations to that article, insisting upon the right to treat 
such individuals as common criminals after they have been finally convicted and 
while they serve their sentences. 

In 1977 a Protocol I to the 1949 Geneva Conventions was signed which 

17 
elaborated considerably on the provisions quoted above. Articles 11, 75(2), 

and 85 of this Protocol repeat many of the offenses listed in the 1949 Geneva 

Conventions. They also add to the list contained in the Conventions a number 

of offenses which cannot be considered as being established penal offenses; rather, 

they are offenses more closely related to the conduct of war. These offenses 

include such matters as making the civilian population the object of attack; or 

the launching of an attack against an installation known to contain dangerous 

forces, such as a nuclear generating plant; or attacking an undefended locality; 

or attacking an individual who is hors de combat; etc. 

Although the Diplomatic Conference which drafted this Protocol was unable 

to reach agreement on the question of the defense of "superior orders," it did 

agree on provisions making superiors responsible for the acts of a subordinate 

"if they knew, or had information which should have enabled them to conclude 
in the circumstances at the time, that he was committing or was going to commit 
such a breach and if they did not take all feasible measures within their power to 
prevent or repress the breach." 
(Article 86(2)) 

It also agreed on provisions making it the duty of a commander who is aware 
that persons under his control 

"are going to cornrnit or have committed a breach of the Conventions or of this 
Protocol, to initiate such steps as are necessary to prevent such violations of the 
Conventions or this Protocol, and, where appropriate, to initiate disciplinary or 
penal action against violators thereof." (Article 87(3)). 

Presumably, should the commander fail to comply with the foregoing provisions 

18 
of Article 87(3), he would be punishable under Article 86(2), above. 

Article 88 of the 1977 Protocol I is entitled "Mutual assistance in criminal 

matters;" and Article 89 is entided "Co-operation." As is not unusual in this 

area, where politics determine policy, these articles express pious statements 

rather than positive rules: 

"The High Contracting Parties shall afford one another the greatest measure of 
assistance in connection with criminal proceedings in respect of grave breaches;" 
(Article 88(1)). 



220 Levle on the Law of War 

"... when circumstances permit, the High Contracting Parties shall co-operate 
in the matter of extradition;" (Article 88(2)). 

"... The provisions of the preceding paragraphs shall not, however, affect the 
obligations arising from the provisions of any other treaty of a bilateral or 
multilateral nature which governs or will govern the whole or part of the subject 
of mutual assistance in criminal matters;" (Article 88(3)). 

"... the High Contracting Parties undertake to act, joindy or individually, in 
co-operation with the United Nations." (Article 89). 

On the other hand, Article 75 of the 1977 Protocol I, entitled "Fundamental 
guarantees," does affirmatively set forth the whole gamut of protections to which 
a person charged with an offense "related to the armed conflict" or "arising out 
of the hostilities" is to be afforded. Thus, he is entided to be informed of the 
reason for his arrest. He is to be tried by "an impartial and regularly constituted 
court respecting the generally recognized principles of regular judicial 
procedure;" and those "generally recognized principles of regular judicial 
procedure" are enumerated at length. Suffice to say that if they are applied by 
a truly impartial court (if any court trying enemy military or civilian personnel 
in time of war can be such!), no accused could complain that he had not had a 
fair trial. 

Mercenaries 

There is one aspect of the 1977 Protocol I which requires special 
mention. Article 47 of that document defines the term "mercenary" and 
provides that 

A mercenary shall not have the right to be a combatant or a prisoner of war. 

The drafting of such a provision and its inclusion in the 1977 Protocol I was, 
of course, a matter within the discretion of the Diplomatic Conference. 
However, what is bothersome is that all attempts to provide in that article that 
if the individual alleged to be a mercenary was tried as an illegal combatant, he 

would be entitled to proper trial safeguards, to the "Fundamental guarantees" 

19 
of Article 75 of the Protocol, a privilege accorded to the members of liberation 

movements who fail to comply with certain provisions of the Protocol and thus 

become, in effect, illegal combatants. Numerous aspects of the trial of the 

mercenaries in Angola appear to warrant considerable pessimism with respect 

to the fairness of the trials that these individuals will receive. 



Criminality 221 

Conclusion 

Apart from the weakness of the provisions calling for international 
cooperation in the prosecution of pre-capture offenses, including the extradition 
of persons charged with such offenses, the 1949 Geneva Conventions and the 
1977 Protocol I establish a number of substantive offenses and provide for the 
trials of persons accused of having committed those offenses, at the same time 
granting them all of the safeguards necessary to assure a fair trial. Any problems 
which may arise in the future with respect to the trial and punishment of persons 
alleged to have committed war crimes will not be because of a lack of applicable 
law, substantive or procedural, but because such law is disregarded or because 
of the improper manner in which it is applied. 

Post-Capture Offenses 

Introduction 

There has never been any question but that a Detaining Power has the right 
to try enemy personnel in its hands for offenses committed during the period of 
internment. The problems which have arisen in this regard are usually 
concerned with the actions of the Detaining Power in making penal offenses 
out of acts committed by prisoners of war, when the same acts would not be 
penal offenses if committed by its own personnel; in trying enemy personnel 
before specially constituted "hanging" courts; in denying to enemy personnel 
the safeguards of trial accorded to its own personnel; and in adjudging sentences 
against enemy personnel in excess of the sentences which could be adjudged 
against its own personnel found guilty of committing the same acts. 

When the matter of a convention on prisoners of war was under review after 
World War I, the Xth International Conference of the Red Cross recommended 

that "An international code of disciplinary and penal sanctions applicable to 

22 
prisoners of war should be included in this Convention." That 

recommendation suffered the not-unusual fate of attempts to expand the 

international criminal law field — it was not accepted by the subsequent 

conferences on the subject. However, over the course of the years the offenses 

committed during the period of detention for which prisoners of war may be 

punished, and the procedures by which they may be punished for those offenses, 

have become highly institutionalized and, if there is compliance with the 

provisions of the latest and currendy applicable set of rules in this regard, those 

contained in the 1949 Third (Prisoner-of-War) Convention, there should be 

no valid cause for complaint either by the person convicted and punished, or 

by his Protecting Power, or by his Power of Origin. 



222 Levie on the Law of War 

Substantive Offenses 

The Convention has reached a very simple solution to the problem of the 
specific substantive offenses for which prisoners of war may be punished: 

1. Article 82(1) of the 1949 Third Convention makes them subject to the 
"laws, regulations and orders in force in the armed forces of the 
Detaining Power" and authorizes the Detaining Power to take 
appropriate action for violations of those laws, regulations and orders. 

2. Article 82(2) of that Convention provides that if any law, regulation or 
order of the Detaining Power makes an act committed by a prisoner of 
war punishable when that same act committed by a member of its own 
forces would not be punishable, the maximum allowable punishment 
is to be disciplinary, not penal, in nature. 

By this means the Convention has, with respect to penal matters, equated the 
prisoner of war to the member of the armed forces of the Detaining Power. It 
has, moreover, accepted the fact that there will necessarily be some special rules 
of conduct promulgated by the Detaining Power which will be uniquely 
applicable to prisoners of war — but it has placed severe limitations on the 
punishment which may be imposed for violations of those special rules of 
conduct. 

Procedural Rules 

General: a. A prisoner of war must be tried by the same court, either military 
or civilian, that would try a member of the armed forces of the Detaining Power 
for the particular offense charged (Article 84(1)); 

b. The trial court must be one which affords the prisoner-of-war accused 
"the essential guarantees of independence and impartiality as generally 
recognized" (Article 84(2)); 

c. Double jeopardy (non bis in idem) is specifically prohibited (Article 86); 

d. The penalty assessed against a prisoner of war may not exceed that provided 
for in respect of members of the armed forces of the Detaining Power (Article 
87(1)). 

Disciplinary sanctions: a. This is a type of punishment for minor offenses 
which may be imposed administratively by the camp commander or his delegate 
(Article 96(2)). There is probably an equivalent type of administrative 
punishment in the armed forces of most nations; 



Criminality 223 

b. The accused must be advised of the charge and must be given an 
opportunity to defend himself (Article 96(4)); 

c. The allowable punishments are limited to a monetary fine, discontinuance 
of any privileges normally allowed by the Detaining Power above those granted 
by the Convention, fatigue duties not exceeding two hours daily, and a 
maximum of 30 days confinement (Articles 89 and 90(2)); 

d. The punishment must not be inhuman, brutal or dangerous to the health 
(Article 89(3)); 

e. There are a number of provisions establishing norms for any confinement 
awarded as a disciplinary punishment (Articles 88, 97 and 98); 

f. It is here that violations of the offenses unique to prisoners of war 
mentioned above will be punished; for example, there are several provisions 
with respect to attempted escapes which, when unsuccessful, are punishable by 
disciplinary sanctions only (Articles 91-94, inclusive). 

Judicial proceedings: a. The offense for which a prisoner of war is to be 
tried must have been such in the law of the Detaining Power or in international 
law at the time of its commission (no ex post facto laws) (Article 99(1)). Logically, 
this provision should have been in the general provisions, with the prohibition 
against double jeopardy; 

b. Lists of the offenses punishable by the death sentence must be exchanged 
as soon as possible after the outbreak of hostilities and additions to those lists 
may not be thereafter made without the agreement of the two belligerents 
involved (Article 100); and when a death sentence is adjudged, it may not be 
executed until six months after notice of its imposition has been given to the 
Protecting Power (Article 101); 

c. Mental or physical coercion in order to extort a confession is specifically 
prohibited (Article 99(2)); 

d. The Protecting Power must be notified of an impending trial three weeks 
in advance (Article 104(1)) and must, except in rare cases involving state security, 
be permitted to attend the trial (Article 105(5)); proof of the notification is 
jurisdictional (Article 104(4)); 

e. The accused is entided to particulars of the charge and other documents 
in a language which he understands; to be represented by counsel of his own 
choice, or one provided by the Protecting Power, or one provided by the 
Detaining Power; to confer with counsel freely and privately; to confer with 
and to call witnesses; to have the services of an interpreter (Article 105); and to 
have a full opportunity to present his defense (Article 99(3)); 

f. The punishment which may be imposed upon conviction is limited to that 
which could be imposed upon a member of the armed forces of the Detaining 
Power convicted of the same offense (Article 87(1)); 



224 Levie on the Law of War 

g. The accused is entitled to the same rights of appeal as a member of the 
armed forces of the Detaining Power (Article 106); 

h. There are a number of provisions establishing norms for any confinement 
adjudged by the court (Articles 88 and 108). 

Conclusion 

Under the able guidance of the International Committee of the Red Cross, 
in the course of drafting the 1949 Third Convention the 1949 Diplomatic 
Conference modernized the provisions of the 1929 Geneva Prisoner-of-War 
Convention with respect to the trial and punishment of prisoners of war for 
offenses committed while in that status. Although there has, fortunately, been 
no occasion to test the application of these provisions on a wide scale they do 
appear to ensure fair and just treatment for prisoners of war accused of 
post-capture offenses. Once again, it may be stated that any problems which 
may arise will not be because of a lack of applicable law, substantive or 
procedural, but because such law is disregarded or because of the improper 
manner in which it is applied. 

Notes 

1. G. Schwarzenberger, International Law as Applied by Courts and Tribunals, 462-466 (1968). 

2. H. Levie, Prisoners of War in International Armed Conflict 343-344 (1979). See, e.g., "United States v. 
Henry Wirz," Documents on Prisoners of War 46 (H. Levie, ed., 1979) (hereinafter Levie, Documents). 

3. See, e.g., The Law of War: a Documentary History, I, 799-829 (L. Friedman, ed., 1972). 

4. One such incident has recendy been given wide publicity in the Australian morion picture "Breaker Morant." 

5. Article 4, Treaty of Vereeniging, Pretoria, 31 May 1902, 191 Parry, Consolidated Treaty Series 232; 
Levie, Documents, 66. 

6. 14 Am. J. Int'l L. 95 (1920); Levie, Documents, 158. The recommendation was limited to "persons 
belonging to enemy countries." 

7. Treaty of Peace between the Allied and Associated Powers, of the One Part, and Germany, of the 
Other Part, Versailles, 28 June 1919, 255 Parry, Consolidated Treaty Series 188; Levie, Documents, 165. 

8. See, generally, C. Mullins, The Leipzig Trials (1921). It is worthy of note that in one trial the German 
Court said: 

"Patzig's order does not free the accused from guilt. It is true that according to the Military Penal 
Code, if the execution of an order in the ordinary course of duty involves such a violation of the law 
as is punishable, the superior officer issuing such an order is alone responsible. However, the subordinate 
obeying an order is liable to punishment, if it was known to him that the order of the superior involved 
the infringement of civil or military law. This applies in the case of the accused. Military subordinates 
are under no obligation to question the order of their superior, and they can count upon its legality. 
But no such confidence can be held to exist, if such an order is universally known to everybody, 
including also the accused, to be without any doubt whatever against the law. This happens only in 
rare and exceptional cases. But this case was precisely one of them, for in the present instance, it was 
perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else but 
a breach of the law. . . ." 
The Llandovery Castle Case, ibid., 130-131. 

9. Article 28(1), Convention for the Amelioration of the Condition of the Wounded and Sick in Armies 
in the Field, Geneva, 6 July 1906, 222 Parry 144, The Laws of Armed Conflicts 233 (D. Schindler &J. Toman, 
eds., 1981) (hereinafter Schindler/Toman). 

10. Article 29(1), Convention for the Amelioration of the Condition of the Wounded and Sick in Armies 
in the Field, Geneva, 27 July 1929, 118 U.N.T.S. 303; Schindler/Toman, 257. 






Criminality 225 

11. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 
82 United Nations Treaty Series 280; Levie, Documents, 276. Although the Court which heard the Tokyo 
Trial was international in membership, it was created by a Special Proclamation of General MacArthur, acting 
as the Supreme Commander for the Allied Powers. Schindler/Toman 823; Levie, Documents. 312. 

12. Control Council Law No. 10, 20 December 1945, Trial of War Criminals before the Nuremberg 
Military Tribunals, 1, xvi (hereinafter T.W.C.); Levie, Documents, 304. For a typical implementing order, see 
Ordinance No. 7 of the Military Government of Germany, U.S. Zone of Occupation, 18 October 1946, 
T.W.C., I, xxiii, Levie, Documents, 364. 

13. See generally the fifteen volumes issued by the United Nations War Crimes Commission entitled Law 
Reports of Trials of War Criminals (1947-1949). 

14. Common Articles 49/50/129/146 and 50/51/130/147, 1949 Conventions for the Protection of War 
Victims, 75 U.N.T.S. 31/85/135/287; Schindler/Toman, 305-333-355-427. 

15. There is, however, disagreement as to whether Article 146(2) is itself an extradition treaty or is effective 
only when the two States involved have a general extradition treaty. 

16. The North Vietnamese reservation stated: 

"The Democratic Republic of Vietnam declares that prisoners of war prosecuted for and convicted of 
war crimes or crimes against humanity, in accordance with the principles laid down by the Nuremberg 
Court of Justice shall not benefit from the present Convention as specified in Article 85." (Emphasis 
added.) (The original French translation furnished to the depositary by the North Vietnamese used the 
words "poursuivis et condamnes" — prosecuted and convicted. 274 United Nations Treaty Series 340.) 
Despite the foregoing, the North Vietnamese took the position that upon capture all American prisoners of 
war were immediately war criminals and, therefore, not entitled to any of the benefits of the 1949 Third 
(Prisoner-of-War) Convention, a denial which would, presumably, include the provisions thereof with respect 
to trial safeguards. 

17. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection 
of Victims of International Armed Conflicts (Protocol I), Schindler/Toman, 551; Levie, Documents, 824. 

18. This represents a return to the doctrine of the responsibility of the commander expounded in In re 
Yamashita, 327 U.S. 1, Levie, Documents, 294 and 319, which had appeared to be on its way to oblivion. 

19. The Nigerian delegate, the main proponent of the provisions which became Article 47 of the 1977 
Protocol I, stated that mercenaries would not be denied the protection of the fundamental guarantees of Article 
75 and of the 1949 Geneva Conventions generally. Official Records of the Diplomatic Conference on the 
Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, XV, 192 
(par. 16). However, statements by the delegates of other supporters of the article, and their adamant refusal to 
include any specific mention of Article 75 does not augur well in this regard. This was the obvious feeling of 
many of the delegates. See, e.g., id., 191 (par. 14), 193 (par. 23), 194 (par. 25); 195 (par. 28); etc. 

20. See Note, "The Laws of War and The Angolan Trial of Mercenaries: Death to the Dogs of War," 9 
Case W. Res. J. Int'l L. 323 (1977). 

21. Many of the provisions with respect to this time period will likewise be found, mutatis mutandis, in 
Articles 64-77 (civilian population in occupied territory) and 117-126 (civilian internees) of the 1949 Fourth 
(Civilians) Convention. 

22. International Committee of the Red Cross, Commentary on the Geneva Convention Relative to the 
Treatment of Prisoners of War 407 (Pictet, ed., 1960). 

23. Persons who do not benefit from more favorable treatment under the 1949 Third or Fourth 
Conventions would fall within the purview of the protective provisions of Article 75 of the 1977 Protocol I. 



Criminality in The Law of War 

Addendum 

After the end of World War II in 1945 the victorious Allied Powers 
established International Military Tribunals for the trials of the major German 
and Japanese war criminals, as well as many other tribunals and military 
commissions for the trials of other persons who were deemed guilty of having 
violated the law of war. Hundreds of such trials were conducted. (Probably the 



226 Levie on the Law of War 

last of those trials were those of Klaus Barbie, decided on 4 July 1987, and of 
Paul Touvier, decided on 20 April 1994, both by French Cours d' Assises. In 
October 1 997 proceedings were instituted in a Bordeaux court charging Maurice 
Papon, once a member of post-war French cabinets, with responsiblity for the 
deaths of 1,090 French Jews during World War II.) 

Despite the many international wars which have taken place since 1945 and 
the many violations of the law of war which have been committed during the 
course of those conflicts, there has not been a single war crimes trial arising out 
of violations of the law of war which had occurred during those conflicts. (The 
United States tried William Calley and others for violations of the law of war at 
My Lai, in Vietnam, but at the time these were not considered to be true war 
crimes trials because the United States was trying its own personnel. Why this 
should make a difference is difficult to understand.) 

For subsequent developments in this area, see The Statute of the International 
Tribunal for the Former Yugoslavia: A Comparison with the Past and a Look at the 
Future (page xx hereof) and War Crimes in the Persian Gulf in the present 
collection. In August 1996 the Congress enacted, and on 21 August 1996 the 
President approved, the War Crimes Act of 1996, an amendment to Tide 18 of 
the United States Code, which reads as follows: 

Chapter 118— WAR CRIMES 
§2401. War crimes 

(a) OFFENSE. Whoever, whether inside or outside the United States, 
commits a grave breach of the Geneva Conventions, in any of the circumstances 
described in subsection (b), shall be fined under this tide or imprisoned for life or 
any term of years, or both, and if death results to the victim, shall also be subject 
to the penalty of death. 

(b) CIRCUMSTANCES. The circumstances referred to in subsection (a) are 
that the person committing such breach or the victim of such breach is a member 
of the Armed Forces of the United States or a national of the United States (as 
defined in section 101 of the Immigration and Nationality Act). 

(c) DEFINITIONS. As used in this section, the term 'grave breach of the 
Geneva Conventions' means conduct defined as a grave breach in any of the 
international conventions relating to the laws of warfare signed at Geneva 12 
August 1949 or any protocol to any such convention, to which the United States 
is a party. 

Under this statute the Calley Case would now be considered to be a war crimes 
case. 



XII 

Means and Methods of Combat at Sea 

14 Syracuse Journal of International Law and Commerce 121 (1988) 



It is strange indeed that an individual whose only military experience has been 
with land forces and who has only once been aboard a warship (and that was 
to be present at a ceremony where the ashes of a deceased naval officer were 
strewn at sea) should be asked to present a paper on the subject of "Means and 
Methods of Combat at Sea" to this Round Table. In view of the fact that there 
are a great number of naval experts present, I cannot even believe that it was 
intended to be a case of the blind leading the blind! If this had been scheduled 
to be the first paper delivered I would have assumed that the organizers of this 
Round Table were motivated by the desire to lay a groundwork in this area at 
the lowest possible technical level and then work up to the more esoteric 
problems. However, in view of the sequence of the programming, that 
explanation likewise seems to be ruled out. Fortunately I am in a position to 
state without fear of challenge that because of limitations of time and space, I 
will only be able to specify the modern methods or means of conducting warfare 
at sea with respect to which there appear to be legal problems, without 
attempting to offer any solutions to those problems. 

It will be recalled that the Final Act of the 1907 Hague Peace Conference 
included the statement of a wish that its successor conference prepare regulations 
relative to the laws and customs of naval warfare. Of course, because of the 
outbreak of World War I, that conference never took place and the series of 
Hague Peace Conferences was brought to an end. Subsequent efforts to fill the 
lacunae in the law of naval warfare through conventional means, such as the 1909 
Declaration of London, were, for one reason or another, unsuccessful, with the 
result that, apart from the much-disregarded 1936 London Proces-Verbal on 
submarine warfare, the law of naval warfare consists basically of the 1856 
Declaration of Paris, the several conventions on the subject adopted in 1907, 
the 1949 Second Geneva Convention, and customary international law. 

The 1977 Protocol I 

An important preliminary question concerns the extent, if any, to which 
Article 49 of the 1977 Protocol I makes the provisions of that Protocol 
applicable to warfare at sea. It unquestionably applies to naval bombardments of 



228 Levie on the Law of War 

land targets, the subject of the 1907 Hague Convention IX Concerning 
Bombardment by Naval Forces in Time of War. Does it also apply generally 
to other methods and means of conducting warfare at sea? One commentator, 
Dr. Elmar Rauch, asserts with considerable vigor that this protocol "regulates 
the conduct of hostilities and the pertinent treaty provisions apply to any land, 
air, or sea warfare." Another commentator, Professor Frits Kalshoven, is equally 
categorical in asserting that "[t]his goes to show once again that the Diplomatic 
Conference, carefully avoided taking up, in particular, the matter of naval 
warfare proper." 

When Dr. Rauch presented his thesis to a Committee of the International 
Society for Military Law and the Law of War at Garmisch in September 1985, 
it generated considerable controversy. At the risk of oversimplification, I shall 
quote the two paragraphs of the article of the Protocol relied upon by Dr. Rauch 
and a very small part of the relevant activities at the Diplomatic Conference and 
then let you draw your own conclusions: 

Article 49 -Definition of attacks and scope of application 

3. The provisions of this Section apply to any land, air or sea warfare which may 
affect the civilian population, individual civilians or civilian objects on land. They 
further apply to all attacks from the sea or from the air against objectives on land 
but do not otherwise affect the rules of international law applicable in armed 
conflict at sea or in the air. 

4. The provisions of this Section are additional to the rules concerning 
humanitarian protection contained in the Fourth Convention, particularly in Part 
II thereof, and in other international agreements binding upon the High 
Contracting Parties, as well as to other rules of international law relating to the 
protection of civilians and civilian objects on land, at sea or in the air against the 
effects of hostilities. 

When Article 49, then draft Article 44, was being discussed in the Working 
Group of Committee III of the Diplomatic Conference, the words "on land" 
at the end of what is now the first sentence of paragraph 3 were the subject of 
considerable debate. The following statement with respect thereto is contained 
in the report of the Working Group: 

Discussions in the Working Group showed almost complete agreement that it 
would be both difficult and undesirable in the time available to try to review and 
revise the laws applicable to armed conflict at sea and in the air. Moreover, it was 
clear that we should be careful not to revise that body of law inadvertendy through 
this article. The solution was found by combining the ICRC text with a sentence 






Combat at Sea 229 

which stated clearly that, except for attacks against objectives on land, the law 
applicable to armed conflict at sea or in the air is unaffected. 

Several delegates wish it recorded that they remain dissatisfied with this draft. 
They object to the phrase 'on land' in the first sentence and to the second sentence 
as a whole. These delegates would prefer to have this section of the Protocol affect 
the law applicable to the conduct of warfare at sea or in the air to the extent that 
provisions of this Section would be more favorable to civilians than the existing 
law. 

The additional sentence referred to is, of course, the second sentence in 
Paragraph 3 (then paragraph 1). At the meeting of Committee III which took 
place immediately after the submission of that report, the following occurred: 

The term 'on land' was adopted by 56 votes to one, with 7 abstentions. The part 
of the second sentence beginning with 'but do not' . . . and ending with ... 'or 
in the air' was adopted by 56 votes to one, with nine abstentions. 

Paragraph 1 of Article 44 was adopted by 60 votes to none, with 7 abstentions. 



The Report of Committee III, Second Session, adopted the wording of the 

12 
report of the Working Group almost verbatim and the Plenary Meeting 

adopted the article without discussion. I now ask you: did the Diplomatic 

Conference make the provisions of the 1977 Protocol I generally applicable to 

warfare at sea? 

Blockade 

For centuries a naval blockade for the purpose of cutting off supplies to the 
enemy, like a land siege, has been an accepted method of conducting naval 
warfare and the supplies so cut off have frequently included foodstuffs. This has 
been true whether foodstuffs have been considered to be absolute contraband, 

conditional contraband, or not contraband. The unratified 1909 Declaration of 

15 
London (which itself stated that it corresponded with generally recognized 

principles of international law) listed foodstuffs as conditional contraband. The 

imposition of the "long distance" blockade by the United Kingdom during 

World War I was intended to bring Germany to its knees by starving the civilian 

population and it is alleged to have caused the deaths by malnutrition of half a 

million German noncombatants. When, during the last year of World War 

II, the United States instituted a blockade of Japan primarily by mining the waters 

around that country, it actually called the mining program "Operation 

Starvation." 



230 Levie on the Law of War 

Article 3 of the Resolution of the General Assembly on the Question of 

Defining Aggression includes in its list of acts qualifying as acts of aggression, 

18 
"regardless of a declaration of war": "(c) The blockade of the ports or coasts 

of a State by the armed forces of another State." 

One well-known commentator on the subject has stated: 

The 'blockade of the ports or coasts' of another State was another listed 
indicator of aggression, but what precisely constituted a 'blockade . . . was 
deliberately left vague.' 

Does this provision of the resolution purport to constitute an attempt to 

eliminate the blockade completely, as a method of conducting warfare at sea? 

Does this mean that even after there is no question but that hostilities have 

erupted between two or more nations and after the Security Council has been 

unable to obtain a cease fire, and the two sides are attacking each other wherever 

they are in contact and are bombing each other wherever targets are available, 

the imposition of a blockade by one of the participants in the dispute would be 

an act of aggression? Did the Committee which drafted the definition of 

aggression consider that, among other things, it was recommending a material 

change in the law of warfare at sea? Or was the banning of blockades a 

prohibition on the use of this type of force to bring pressure to bear on a nation 

during peacetime, such as that used by Germany, Great Britain, and Italy against 

Venezuela in 1902? 

21 
Article 54(1) of the 1977 Protocol I states: "Starvation of civilians as a 

• 22 

method of warfare is prohibited." Does this mean that naval blockades may 

no longer prevent foodstuffs from reaching enemy ports? The 1975 Report of 

23 
the Committee charged with this matter by the Diplomatic Conference stated: 

"The fact that the paragraph [Article 54(1)] does not change the law of naval 

blockade is made clear by Article 44, paragraph 1 [Article 49(3)]." 

The Australian delegation was even more specific in its explanation of its 

vote. It said: 

The Australian delegation wishes to place on record its view that Article 48 [now 
Article 54] does not prevent military operations intended to control and regulate 
the production and distribution of foodstuffs to the civilian population, and that 
it does not affect existing legal rule concerning the right of military forces to 
requisition foodstuffs. Moreover, in the view of my delegation, nothing in Article 
48 direcdy or indirecdy affects existing rules concerning naval blockade. 

Dr. Rauch disagrees with the foregoing interpretations of Article 54(1) of the 
1977 Protocol I, taking the position that under that provision of the Protocol 



Combat at Sea 231 

25 
there is an absolute prohibition of a naval blockade of foodstuffs. It remains 

to be seen how belligerents will interpret it. 

Mine Warfare 

The only conventional law with respect to the subject of mine warfare at sea 
is the 1907 Hague Convention No. VIII Relative to the Laying of Automatic 
Submarine Contact Mines. Inasmuch as that Convention repeatedly refers to 
"automatic contact mines," there is a dispute on the question of its applicability 
to the modern "influence mines" (magnetic, pressure, acoustic, etc.), which do 
not require contact with the target in order to explode. Some commentators 

believe that the Convention is equally applicable to the various influence 

27 
mines. Others believe that the wording of the Convention is so restrictive that 

• • -28 

mines other than those specified are not subject to its provisions. Professor 

O'Connell has taken the position that while influence mines are not specifically 

covered by the Convention, the practice of belligerents has been such as to bring 

them within its purview. Influence mines are frequendy bottom or ground 

mines, which He on the seabed unmoored. If the Convention is applicable to 

them, the question which arises is whether, under Article 1(1) of the 

Convention, they must disarm themselves one hour after they have been 

planted — a requirement which would make them practically useless. In view of 

the validity of the dispute, this appears to be one area where new laws with 

respect to the conduct of warfare at sea might prove useful. 

During the drafting of the 1907 Hague Convention No. VIII the Netherlands 
sought to have included therein a provision which would have prohibited the 
laying of mines barring passage through a strait connecting two open seas. This 
proposal was rejected and all that was done in this regard was to include in the 
Commission report a statement that there was no intention to change the law 
relating to straits without stating what that law was. During both World Wars 
straits were mined, and with such success that it is deemed unlikely that any 
restriction on this practice would be acceptable to most nations now or in the 
foreseeable future. 

One comparatively recent development in naval weapons systems is the 

"torpedo mine." It is an anti-submarine weapons system consisting of a torpedo 

32 
inserted into a mine casing. It is deployed like an ordinary mine in deep water 

in the vicinity of routes traveled by enemy submarines. It has the ability to detect 

and classify submarine targets while surface ships will pass over it without 

triggering the torpedo. At the present time it is moored but suggestions have 

been made that it be used as a bottom or ground mine, buried in the seabed for 

concealment purposes, and not moored. Two legal problems would then arise 

with respect to this weapon: first, it might be argued that under the provisions 

of Article 1(1) of the 1907 Hague Convention No. VIII such a weapon should 



232 Levie on the Law of War 

disarm itself one hour after being deployed. On the other hand, it is actually 
unarmed and inactive while lying on the seabed; the torpedo only becomes 
activated, armed, and sent on its way when it receives the signal of the approach 
of a target — a submarine. The second problem is that under Article 1(3) of the 
Convention a torpedo which misses its mark must become harmless. When 
released, the encapsulated torpedo would be no different from any other 
torpedo. Presumably the fact that it would sink to the bottom of the sea at the 
end of an unsuccessful run would meet the Convention's requirement although 
it is probable that all torpedoes can be and are programmed to disarm themselves 
when they miss their target. 

One final aspect of mine warfare is worthy of mention. In 1972 the Seabed 
Arms Control Treaty came into effect. This Treaty prohibits emplacing or 
emplanting any nuclear weapons or any other types of weapons of mass 
destruction on the seabed beyond a twelve-mile coastal zone. The same 
restriction exists as to any facilities for storing, testing, or using such weapons. 
The coastal State, whether belligerent or neutral, may emplace or emplant any 
type of mine, conventional or nuclear, within its twelve-mile zone, subject, 
presumably, to notification, and, in appropriate cases, to the right of innocent 
passage. Other States are limited to the employing or emplanting of conventional 
mines beyond the twelve-mile zone. A belligerent may, of course, lay 
conventional mines within the territorial waters of its enemy provided that it is 
not the "sole object" of such mines to intercept commercial vessels. May it lay 
nuclear mines in those waters subject only to that same limitation? 

The Natural Environment 

There is one aspect of the conduct of war at sea to which little attention has 
been paid and which could prove catastrophic for mankind — that is, the effect 
of such warfare on the natural environment. What will happen to the live natural 
resources of the sea if supertankers carrying hundreds of thousands of tons of 
crude oil are torpedoed and sunk? Or if off-shore pumping facilities are attacked 
and left discharging their product into the sea? What will happen to those natural 
resources and to mankind itself if nuclear submarines and other nuclear warships 
are destroyed by shells, missiles, mines, or torpedoes? Or if a warship, surface or 
submarine, carrying weapons with nuclear warheads is so destroyed? While there 
are "fail-safe" devices intended to protect against harm arising from these two 
latter eventualities, not only will there be instances where they cannot operate, 
but events have demonstrated the undependability of such devices. I have no 
solution for this problem nor, unfortunately, can I envision any rules in this 
regard which would be generally acceptable to states. Even if the provisions 
of the 1977 Protocol I are deemed to be applicable to warfare at sea, it does not 
appear that its Articles 35 and 55 thereof will solve the problem. For example, 






Combat at Sea 233 

no torpedo mine is programmed in such a way as to limit its attacks to 
conventional submarines. And with the desperate need for oil of every 

belligerent during wartime, no nation can realistically be expected to provide 

35 
in its rules of engagement a prohibition against attacks on tankers. 

Missiles 

The development and use of missiles with conventional warheads, such as 
Exocet, should not create any major legal problems. As in land warfare, they are 
nothing more than modern artillery, even when they are used over the horizon. 
Of course, if missiles from the sea are used against land targets their use is subject 
to the provisions of the 1907 Hague Convention No. IX Concerning 
Bombardment by Naval Forces in Time of War and the 1977 Protocol 1. 
However, if they are used against targets at sea they are subject to no prohibitions 
or restrictions not imposed on the use of a warship's guns. One commentator, 
writing in 1972, questioned whether naval surface-to-surface missiles were 
"sufficiently discriminating to ensure that the distinction between military targets 

on the one hand, and civilian and neutral targets on the other, can be 

38 
maintained." However, while a missile, like any other projectile, may hit an 

innocent victim and thus create an international incident, this would not appear 

to affect the legal status of missiles as a means of conducting warfare at sea. 

Exclusion Zones 

Naval warfare may take place anywhere that ships may sail except in the 
territorial seas or internal waters of neutral states. This, of course, includes the 
high seas. The right of neutral vessels and aircraft to use the high seas, even 
during wartime, cannot be denied — but, legally or illegally, certain limitations 
have frequendy been placed on that right by belligerents. One such limitation 
which has had many names is probably now best known as an "exclusion zone." 
One commentator, Commander Fenrick, has defined this term as follows: 

An exclusion zone, also referred to as a military area, barred area, war zone or 
operational zone, is an area of water and superadjacent air space in which a party 

to an armed conflict purports to exercise control and to which it denies access to 

39 
ships and aircraft without permission. 

Exclusion zones, under various names, were notified in both World Wars, 
frequendy under the guise of reprisals. After World War II the International 
Military Tribunal (IMT) at Nuremberg found German Admiral Doenitz guilty 
of a violation of the 1936 London Proces- Verbal (Protocol I) holding: 



234 Levle on the Law of War 

The order of Doenitz to sink neutral ships without warning when within these 

[operational] zones was, therefore, in the opinion of the Tribunal, a violation of 

41 
the protocol. 

It will be noted that the Tribunal referred only to the sinking without warning 
of neutral ships within these zones. The effect of such an order directed solely at 
enemy merchant vessels is left unstated. During the 1982 Falklands/Malvinas 
War the establishment of exclusion zones proliferated with the British 

A *X 

announcing four and the Argentines announcing three. The most extensive 
such zone announced by the British was its Total Exclusion Zone (TEZ) of 28 
April 1982, effective 30 April 1982. The core of that announcement was to the 
effect that: 

Any ship and any aircraft, whether military or civilian, which is found within the 
zone without authority from the Ministry of Defence in London will be regarded 
as operating in support of the illegal occupation [of the Falkland Islands] and will 
therefore be regarded as hostile and will be liable to be attacked by British forces. 

So far as is known, the Soviet Union was the only neutral to protest this 
action — perhaps out of pique because a British spokesman had made reference 
to "Soviet spy ships trailing the British forces inside the Zone." 

Exclusion zones of a sort have been announced by both Iran and Iraq in their 
long-running war. 5 That complicated situation, with both sides in violation of 
international law at least as frequently as they are in compliance with it, is better 
not used either as a precedent or as an indication of the practice of states. 

In his study of exclusion zones Commander Fenrick makes the following 
proposal: 

It is suggested that if belligerents use exclusion zones they should publicly declare 
the existence, location and duration of the zones, what is excluded from the zone, 
and the sanctions likely to be imposed on ships or aircraft entering the zone without 
permission, and also provide enough lead time before the zone comes into effect 
to allow ships to clear the area. 

Doesn't that sound very much like a blockade? 

I pose the following questions: Are exclusion zones a legal method of 
conducting warfare at sea? If not, are there any possible limiting factors which 
could make them legal? 

Submarine Warfare 

48 
Part IV of the 1930 London Naval Treaty contains two rules with respect 

to the method of conducting submarine warfare: first, they must conform to the 



Combat at Sea 235 

rules applicable to surface vessels: and, second, except in certain limited and 
specified cases, they are prohibited from sinking a merchant vessel without first 
having placed passengers, crew, and ship's papers in a place of safety — which 
does not include the ship's boats unless in proximity to land or another vessel. 
There were eleven parties to these provisions, including France, Italy, Japan, the 
United Kingdom, and the United States. The provisions were repeated in the 
1936 Proces- Verbal ' to which thirty-seven additional States, including 
Germany and the Soviet Union, had acceded prior to the outbreak of World 
War II. 

As we have already seen, the International Military Tribunal (IMT) found 
that, while in command of the German submarine force during World War II, 
Admiral Doenitz had issued orders which violated the provisions of the 1936 
Proces- Verbal. However, the Tribunal did not assess punishment for this offense 
because of evidence that both the British and the United States navies had 
followed substantially similar procedures. In other words, three of the major 
naval Powers of the time had completely disregarded the provisions of the law 
of naval warfare restricting the methods of conducting submarine warfare. The 
Tribunal apparently considered that, despite this, the 1936 Proces-Verbal 
continued to be binding international law of naval warfare. Can it really be 
believed that in any future conflict involving naval powers, submarine warfare 
will be conducted in a manner other than it was in World War II? Can it be 
believed that the reiteration of the provisions on the conduct of submarine 
warfare in a new treaty, or the drafting of new restrictive provisions on this 
method of conducting naval warfare, would be other than a useless gesture? 

Conclusions 

The methods and means of conducting warfare at sea that have been developed 
since the end of World War II are unquestionably numerous. For some, no new 
conventional law is necessary. For a few, it would probably be helpful to have new 
conventional law to replace the customary law which has evolved or the complete 
lack of law governing their use. For still others, the likelihood of agreement on a 
viable solution appears to be completely unattainable. It is believed that more harm 
than good could result from the drafting by the large majority of non-maritime 
powers, and the attempted imposition on the maritime powers, of prohibitions and 
restrictions on methods and means of conducting warfare at sea which the latter 
powers would refuse to accept. 

Notes 

1 . 1 J.B. Scott. The Proceedings of the Hague Peace Conferences: the Conference of 1 907, 
at 679, 689(1920). 



236 Levie on the Law of War 

2. Declaration Concerning the Laws of Naval Warfare, signed at London, 26 February 1909; D. 
Schindler & J. Toman, The Law of Armed Conflict 755 (2d rev. ed. 1981) [hereinafter Schindler & 
Toman]. 

3. Proces-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the London Naval 
Treaty of 1930, signed at London, 6 November 1936 [hereinafter Proces-Verbal], in SCHINDLER & Toman, 
supra note 2, at 795. 

4. Declaration Respecting Maritime Warfare, signed at Paris, 16 April 1856, in SCHINDLER & TOMAN, 
supra note 2, at 699. 

5. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked 
Members of Armed Forces at Sea, signed at Geneva, 12 August 1949, in Schindler & Toman, supra note 
2, at 333. 

6. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection 
of Victims of International Armed Conflicts (Protocol I), signed at Geneva, 10 June 1977, 16 I.L.M. 1391 
(1977) [hereinafter 1977 Protocol I]; Schindler & Toman, supra note 2, at 551. 

7. Schindler & Toman, supra note 2, at 723. 

8. Rauch, The Protocol Additional to the Geneva Conventions. . .and the United Nations 
Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare 17, 57-66 (1984). 
Dr. Rauch goes on to say that this is why no major military power has ratified the Protocol. The validity of 
that statement is questionable. 

9. F. Kalshoven, Constraints on the Waging of War 87-88 (1987). 

10. XV Official Records of the Diplomatic Conference on the Reaffirmation and 
Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 
1974-1977, 327 (17 vols., 1978) [hereinafter Official Records]; 3 Levie, Protection of War Victims: 
Protocol I to the 1949 Geneva Conventions 93 (4 vols., 1979-1981) [hereinafter Levie]. 

11. XIV Official Records, supra note 10, at 217; 3 Levie, supra note 10, at 94. 

12. XV Official Records, supra note 10, at 267; 3 Levie, supra note 10, at 95, 96. 

13. VI Official Records, supra note 10, at 205; 3 Levie, supra note 10, at 107. 

14. It should perhaps be noted at this point that Article 49 para. 4, which was originally para. 3, was 
adopted by Committee III at its meeting on 21 March 1974 (XIV Official RECORDS, supra note 10, at 85, 
88; 3 Levie, supra note 10, at 85, 88), while the second sentence of paragraph 3, then paragraph 1, was not 
even drafted by the Working Group until almost a year later in February 1975 (XV Official Records, supra 
note 10, at 327; 3 Levie, supra note 10, at 93) and was not adopted by Committee III until 25 February 1975 
(XIV Official Records, supra note 10, at 217, 218; 3 Levie, supra note 10, at 94). If either can be said to 
modify the other, then the second sentence of the present paragraph 3, being the later in date, modifies the 
present paragraph 4. Frankly, the present commentator sees no relationship between paragraph 4 and the 
problem under discussion but it has been brought into the dispute by others. 

15. Schindler & Toman, supra note 2. 

16. Rauch, supra note 8, at 86-87. 

17. Meacham, Four Mining Campaigns, Naval War C. Rev., June 1967, at 96-97. 

18. Resolution 3314 (XXIX) of the General Assembly of the United Nations, 14 December 1974, GA. Res. 
3314 (XXIX), 29 U.N. GAOR Supp. (No. 31) at 142, U.N. Doc. A/9631. 

19. Ferencz, The United Nations Consensus Definition of Aggression: Sieve or Substance, 10 J. Int'L & ECON. 
701, 712 (August/December 1976). 

20. After hostilities had broken out in the Falklands/Malvinas Islands in April 1982 and Argentina had 
refused to comply with the Security Council Resolution 502, which called for a cease fire and the withdrawal 
of Argentine troops from the Falklands, the United Kingdom, on 7 April 1982, established a maritime exclusion 
zone (MEZ) around the Islands. Argentina contended that this MEZ was a blockade and that it violated the 
resolution on aggression. (Of course, a basic question beyond the scope of this paper is the legal effect of a 
resolution of the General Assembly.) 

21. See 1977 Protocol I, supra note 6. 

22. While the United States does not at the present time intend to become a party to the 1977 Protocol 
I, at a meeting of the American Society of International Law held in Boston in April 1987, a representative 
of the Office of the Legal Adviser of the Department of State stated that the provision quoted in the text was 
one of those "that we believe should be observed and in due course recognized as customary law even if they 
have not already achieved that status." See U.S. Senate, Treaty Doc. 100-2, 29 January 1987. 

23. XV Official Records, supra note 10, at 279; 3 Levie, supra note 10, at 245. 

24. VI Official Records, supra note 10, at 220; 3 Levie, supra note 10, at 257. 

25. Rauch, supra note 8, at 94. He is incorrect in referring to the quotation from the Report as a "statement 
of the rapporteur." It was a statement made in the Committee's Report drafted by the Rapporteur, but reviewed 



Combat at Sea 237 

with meticulous care by the Committee before it was approved. XIV Official RECORDS, supra, note 10, at 
424-42. However, it could be argued with some justification that a naval blockade, with the consequent 
reduction in the food supplies available to the civilian population resulting in malnutrition and starvation, 
violates Article 49(3) of the 1977 Protocol I because it unquestionably does "affect the civilian population, 
individual civilians or civilian objects on land." 

26. SCHINDLER & TOMAN, supra note 2, at 715 (English); 205 Parry's T.S. 331 (1980) (French). Article 1 
of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II to the 
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be 
Excessively Injurious or to Have Indiscriminate Effects), 19 I.L.M. 1524, 1529, specifies that it "does not apply to 
the use of anti-ship mines at sea or in inland waterways." 

27. Rauch, supra note 8, at 116. See also J.S. Cowie, Mines, Minelayers and Minelaying 171-172 
(1949); Tucker, The Law of Naval Warfare, in 50 International Law Studies 304 n.49 (1957). 

28. F. Kalshoven, Belligerent Reprisals 133-134 (1971); F. Kalshoven, Constraints on the 
Waging of War 32 (1987); see also]. Stone, Legal Controls of International Conflict 584-585 (2d 
rev. ed. 1959). 

29. D.P. O'Connell, The International Lawofthe Sea 1 138-1 139 (LA. Shearer ed. 1984) The conclusion 
is reached that although influence mines are not covered by the Convention, the "generic principle" established by it 
"has rigidified in recent times so as to encompass the influence as well as the anchored contact mine." Id. 

30. 3 Scott Annex 12, supra note 1, at 663. 

31. Id. at 286. But see Corfu Channel Case [1949] I.C.J. 22. 

32. There is some disagreement as to whether this weapon system should be treated as a torpedo, or as a 
mine. See Rauch, supra note 8, at 117; see also L.E. Prima Deep Threat, 26 Sea Power 41, 46 (May 1983). 
It is, of course, both. It is a mine while it lies in wait and a torpedo when it is triggered to seek its target. The 
United States Navy version of this device is called "CAPTOR", a contraction of "enCAPsulated TORpedo." 

33. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction, 
11 February 1971, 10 I.L.M. 146 (1972). 

34. States have heretofore drafted the 1911 Seabed Arms Control Treaty prohibiting the emplacement of 
nuclear weapons on the seabed and the ocean floor. See supra note 33; see also Convention on the Prohibition of 
Military or Any Other Hostile Use of Environmental Modification Techniques, signed at Geneva, 18 May 1977, 16 
I.L.M. 88; Schindler & Toman, supra note 2, at 131; and supra note 16, at arts. 35 and 55 of the 1977 
Protocol I. However, it is extremely doubtful that any belligerent would find any of these rules to be applicable 
to the problems raised, at least in so far as its own actions were concerned. 

35. A number of tankers have been hit by rockets or missiles in the Red Sea in the conflict between Iran 
and Iraq without any sinkings. Whether this is due to the construction of the tankers or to the nature of the 
projectiles used is unknown. Such a result could not be expected in a war involving major naval Powers with 
state-of-the-art missiles, rockets, torpedoes, mines, bombs, and shells. 

36. Schindler & Toman, supra note 7. 

37. 1977 Protocol I, supra note 6. 

38. D.P. O'Connell, The Legality of Naval Cruise Missiles, 66 Am. J. intl L. 785, 786 (1972). The recent 
incident involving the U.S.S. Stark in the Persian Gulf would seem to indicate that the problem of target 
identification still exists. See also Truver, The Legal Status of Submarine Launched Cruise Missiles and International 
Law, 103 Naval Inst. PROC. 82 (August 1977) and Parks, Submarine Launched Cruise Missiles and International 
Law: A Response, 103 Naval Inst. Proc. 120 (1977). 

39. Fenrick, The Exclusion Zone Device in the Law of Naval Warfare, 1986 Can. Y.B. Int'l L. . (As this 
volume of the Yearbook is not yet available, page references are to the manuscript kindly furnished by the 
author. The quotation in the text appears at page 3 of that manuscript.) 

40. See Proces-Verbal, supra note 3. 

41. Opinion and Judgment of the International Military Tribunal, Nuremberg, 1 October 1946, reprinted 
in 1 Trial of Major War Criminals 221, 313 (1948). 

42. Fenrick, supra note 39, at 22. 

43. Id. at 30. 

44. Id. at 32. The British policy statement of 7 May 1982 was not an extension of the TEZ. Id. at 33. 

45. Argentina protested the original United Kingdom "military exclusion zone" as being a violation of 
the General Assembly resolution which defined aggression. See supra note 20. 

46. Fenrick, supra note 39, at 41-49. 

47. Id. at 55. 

48. Treaty for the Limitation and Reduction of Naval Armaments, signed at London, 22 April 1930,112 
L.N.T.S. 65; 25 A.J.I.L. 63 (Supp. 1931). 

49. See Proces-Verbal, supra note 3. 



XIII 

The Status of Belligerent Personnel 

"Splashed" and Rescued by a Neutral 

in the Persian Gulf Area 

* 
31 Virginia Journal of International Law 611 (1991) 



When a neutral country such as the United States has a rather sizeable 
naval force in a confined area for the protection of vessels flying its 
flag, it is inevitable that components of that force will, at times, find themselves 
in armed confrontation with ships and military aircraft of belligerents in that 
area. In the Iran-Iraq war, ships and military aircraft frequendy attacked the 
tankers that the U.S. Navy had been sent to the Persian Gulf to protect, or even 
attacked components of the U.S. Navy itself. There are several discrete examples 
of just such confrontations. 

On August 10, 1987, a U.S. Navy fighter plane fired two missiles at an Iranian 
plane which had violated the "bubble" announced by the Navy as a measure of 
self-protection. And on August 25, 1987, a U.S. destroyer fired across the bows 
of two small unidentified vessels which were approaching the tankers that the 
destroyer was escorting. On April, 18, 1988, in retaliation for the damaging of 
an American warship, United States armed forces attacked and destroyed two 
Iranian oil platforms (which were also used as anti-aircraft platforms) and U.S. 
naval vessels engaged in a subsequent encounter with Iranian vessels, all of which 
resulted in heavy Iranian casualties. However, as the individuals on the platforms 
were given warning of the attacks which were about to take place, and Iranian 
tugboats were permitted to engage in rescue work without impediment by the 
U.S. forces, no Iranians were rescued from the sea by the latter. 

The first two incidents terminated with no damages, no casualties and no 
individuals in custody. The third incident terminated with both Iranian casualties 
and "splashed" personnel, but again with no individuals in custody. The question 
these examples pose concerns the status of the members of the crews of such 
ships or aircraft when they are disabled, sunk or shot down by the U.S. forces 

* This article is a revision of remarks delivered at the 82nd Annual Meeting of the 
American Society of International Law Panel on Neutrality, the Rights of Shipping and 
the Use of Force in the Persian Gulf War, 23 April 1988. See Levie, Remarks, 82 Proc. 
Am. SOC'Y INTL L. 597 (1988). 



240 Levie on the Law of War 

while they are engaged in such attacks, or while they are committing other illegal 
acts against U.S. flagged merchant shipping, or warships, or planes, and when 
they are thereafter rescued from the sea by those forces. I refer to "ships" rather 
than "warships" because there exists a considerable question regarding the status 
of some of the Iranian warships involved. 

Article 14 of the 1910 Convention for the Unification of Certain Rules with 
Respect to Assistance and Salvage at Sea states that it does not apply to "ships 
at war." However, article 11(1) of the same Convention provides that: 

Every master is bound, so far as he can do so without serious danger to his 
vessel, her crew and passengers, to render assistance to everybody, even though an 
enemy, found at sea in danger of being lost. 

This humanitarian rule should be and in fact was complied with by the U.S. 
naval forces in the Persian Gulf. For example, an Iraqi pilot whose plane had 
been shot down by the Iranians was rescued from the sea by a component of 
the U.S. naval forces. Shortly thereafter he was turned over to the Iraqi 
authorities. On the night of September 21-22, 1987, an Iranian vessel, later 
identified as the Iran Ajr, was observed by a U.S. Army helicopter equipped with 
night- vision sensors to be laying mines in the Gulf in the vicinity of U.S. naval 
vessels and an anchorage used by them and the tankers they were there to protect. 
When the minelayer disregarded the radio orders of the helicopter to discontinue 
its minelaying activity, the helicopter opened fire on the Iranian vessel and 
rendered it dead in the water. Twenty-six Iranian seamen and three bodies 
were subsequendy rescued from the sea by a component of the U.S. naval 
forces. Similarly, on October 8, 1987, when a U.S. helicopter flying over the 
waters of the Persian Gulf was fired upon by a gunboat, it returned the fire. Four 

wounded Iranians and the bodies of two others were recovered from the sea by 

7 
a component of the U.S. naval forces. Were the individuals who were rescued 

after these incidents prisoners of war? While the question is moot at the moment 

as all of the individuals were quickly repatriated through the agency of the 

government of Oman, it is one which may require a hard decision at some time 

in the future. 

Common article 2 of the 1949 Geneva Conventions Relative to the 

Treatment of War Victims is the article concerned with the circumstances under 

9 
which those Conventions are to be applied. It provides that: 

[T]he present Convention shall apply in all cases of declared war or of any other 
armed conflict which may arise between two or more of the High Contracting 
Parties, even if the state of war is not recognized by one of them. 



Splashed and Rescued 241 

A number of years ago the International Committee of the Red Cross (ICRC) 
produced lengthy, and what have subsequently become authoritative, 
commentaries with respect to each of the four 1949 Geneva Conventions. Each 
of these commentaries contains a substantially identical statement with respect 
to common article 2. The pertinent portions of the Commentary on the 1949 
Geneva Convention Relative to the Treatment of Prisoners of War state that: 

Any difference arising between two States and leading to the intervention of 
members of the armed forces is an armed conflict within the meaning of Article 
2, even if one of the Parties denies the existence of a state of war. It makes no 
difference how long the conflict lasts, how much slaughter takes place, or how 
numerous are the participating forces; it suffices for the armed forces of one Power 
to have captured adversaries falling within the scope of Article 4. Even if there 
has been no righting, the fact that persons covered by the Convention are detained is 
sufficient for its application. The number of persons captured in such circumstances 
is, of course, immaterial. 

This will be an acceptable interpretation of the provisions of common article 
2 in the great majority of cases. However, in some respects, and under some 
circumstances, it may be too all-encompassing. When Major Arthur D. 
Nicholson of the United States Army was shot and killed by a Russian soldier 
in the Potsdam area on March 25, 1985, and his sergeant-driver was held prisoner 
at gunpoint for a number of hours, he certainly constituted a person "covered 
by the Convention" who was "detained." But was there an "armed conflict" 
between the Soviet Union and the United States? Were the provisions of the 
Prisoner-of-War Convention applicable to the sergeant? When Lieutenant 
Robert 0. Goodman of the United States Navy was shot down by the Syrian 
Army on December 4, 1983, and was taken into custody by the Syrians and held 
for one month before being released, once again there was certainly a person 
"covered by the Convention" who was "detained." But was there an "armed 
conflict" between Syria and the United States? Were the provisions of the 
Prisoner-of-War Convention applicable to the lieutenant? The original 
announcements made by both U.S. officials and the Syrians appeared to assume 
that he was a prisoner-of-war. However, the United States appeared to have 
changed its position. President Reagan later stated: "I don't know how you have 
a prisoner of war when there is no declared war between nations. I don't think 
that makes you eligible for the Geneva Accords." 

Although an isolated incident of the use of force between two nations may 
be considered by one or both of them to be indicative of the existence of an 
armed conflict between them, usually the nations involved will wish to keep 
their options open and will not consider that such an incident has initiated an 



242 Levie on the Law of War 

armed conflict — unless the very purpose of the incident was to serve as a basis 
for such a claim. 

The first question to be decided, then, is whether there is an armed conflict 
between the parties. The ICRC takes the position that such incidents as those 

which occurred in the Persian Gulf in September and October 1987 constitute 

17 
armed conflict and bring the Convention into play. I do not agree with that 

conclusion. But even assuming arguendo that the ICRC position is correct, this 

alone will not always solve the problem. 

Article 4 of the 1949 Geneva Prisoner-of-War Convention specifies the 
categories of persons who are entitled to the status of prisoners of war. First 
among these categories are "[m] embers of the armed forces of a Party to the 
conflict as well as militias or volunteer corps forming part of such armed 
forces." The Iranians who were recovered from the sea by the U.S. Navy on 
September 22, 1987, were apparently members of the Iranian navy and the vessel 
was an Iranian warship. ' If there was an armed conflict and if the 
Prisoner-of-War Convention was applicable, they would unquestionably come 
within the coverage of the quoted provision and would be entided to the 
protection afforded by the Convention. 

Suppose, however, that they had been members of the "Revolutionary 
Guards" — the individuals who appear to compose the crews of the so-called 

"gunboats" which attack any and every ship found in the Persian Gulf, without 

. 20 

regard to the flag that it flies or the cargo that it carries. Do such individuals 

fall within the category of persons entided to prisoner-of-war status when they 

are rescued by U.S. naval forces from the waters of the Persian Gulf into which 

they have been precipitated by action of those same armed forces? Or are they 

illegal combatants who are not entitled to the benefits of that status? While we 

really know very little about the organization of the Revolutionary Guards, it 

would appear that they are, at a minimum, members of a militia or volunteer 

corps forming part of the Iranian armed forces. Under these circumstances, and 

under the ICRC interpretation of the Convention provision, they, too, are 

entitled to the status of prisoners of war if they fall into the hands of another 

power during a period of armed conflict. It is very possible that they have been 

guilty of violations of international law inasmuch as they have, without warning, 

attacked unarmed, neutral vessels. But this does not affect their entitlement to 

prisoner-of-war status. It only means that they could be subjected to trial and 

punishment for their illegal acts — an unlikely event. 

My conclusion, then, is that occasional incidents do not constitute a state of 

war, or even of armed conflict, if there is a difference, between the United States 

and Iran or Iraq. Therefore, none of the Iranians who have been, or who are 

likely to be, "splashed" and rescued by United States forces in the Persian Gulf 

have been, or will be, entided to prisoner-of-war status. It must be borne in 



Splashed and Rescued 243 

mind, however, that a decision that there is no armed conflict and that an 
individual is, therefore, not entided to prisoner-of-war status only means that 
he is not entided to the protection of all of the specific provisions of the 1949 
Geneva Prisoner-of-War Convention. It does not mean that he is unreservedly 
at the mercy of the power in whose custody he finds himself. He is still entitled 
to all of the protection of general humanitarian law. For example, he must receive 
any necessary medical care, he may not be denied adequate food and water, he 
may not be tortured or otherwise maltreated, he may not be treated as a hostage, 
etc. 

One final aspect of the problem is worthy of mention. It is not beyond the 
realm of possibility that some American military personnel serving in the Persian 
Gulf will, in the future, fall into the power of the Iranian regime. It will 
undoubtedly be recalled that the holding of hostages is not an unknown 
phenomenon to that regime. It is devoutly to be hoped that the precedent that 
the United States has established of immediate repatriation will contribute to 
making it politically inexpedient for Iran to hold such American personnel as 
hostages, as might otherwise have occurred. 

Addendum 

Even disregarding the perennial Arab-Israeli controversies, during the past 
decade international crisis has followed international crisis in the Middle East in 
general, and in the Persian Gulf in particular. Iran and Iraq fought a bloody war 
from 1980 to 1988, a war which necessitated the establishment of a naval 
presence in that area by half a dozen nations in order to protect neutral merchant 
shipping. During 1984, the mystery of the mines in the Red Sea posed grave 
difficulties for Egypt and its Suez Canal and necessitated a multilateral force to 
clear the mines from the sea. During the 1980s there was rarely a moment when 

the internecine conflict in Lebanon was not costing lives, with international 

21 
interventions on a number of occasions. Then, on 2 August 1990, less than 

two years after the Iran-Iraq conflict had come to an inconclusive halt, Iraq, 

under Saddam Hussein, invaded, occupied, and annexed its neighbor, Kuwait, 

bringing down upon its head the wrath of the great majority of the members of 

the international community, including most of the fifteen members of the 

Security Council of the United Nations. Military forces from thirty nations 

concentrated in Saudi Arabia and when non-military actions such as economic 

blockades proved ineffective in inducing Saddam Hussein to recognize the error 

of his actions, the Security Council authorized Kuwait and its cooperating 

"coalition" states "to use all necessary means to uphold and implement 

Resolution 660 (1990) and all subsequent relevant resolutions" if Iraq had not 

22 
complied with the mentioned resolutions by 15 January 1991. ' This was, of 



244 Levie on the Law of War 

course, a euphemistic way of authorizing the use of armed force while avoiding 
the need for any unpalatable words. 

Aerial bombardment began shortly after the deadline. Inevitably, coalition 
planes were shot down and crew members became prisoners of war of the Iraqis. 
In this instance there was no question with respect to the applicability of the 
1949 Geneva Prisoner-of-War Convention. Although Iraq became a party to 
this Convention in 1956, she paid as little attention to its provisions in this 
conflict as she had during the Iran-Iraq War. In the other direction there was 
a fairly substantial number of Iraqis who elected to become prisoners of war 
rather than fight for Saddam Hussein. The ground war started late in February 
and within a matter of days the number of Iraqi prisoners of war in the custody 
of the members of the coalition reached the tens of thousands. Delegates of 
the ICRC immediately began visiting these prisoners of war, a process which 
thereafter continued without interruption. 

When Iraq capitulated and agreed to comply with the provisions of the 
previous Security Council resolutions, Security Council Resolution 686 (1991), 
set forth the requirements to be imposed on Iraq in order to warrant a cease fire. 
The resolution contained the following provision: 

3. Further demand that Iraq: 

(c) Arrange for immediate access to and release of all prisoners of war 
under the auspices of the International Committee of the Red Cross and return 
the remains of any deceased personnel of the forces of Kuwait and the Member 
States cooperating with Kuwait pursuant to resolution 678 (1990). . . . 

On March 6, 1991, Iraq released thirty-five prisoners of war, asserting that 

27 
that was all she held. ' Shortly thereafter the coalition commenced the 

incremental repatriation of the Iraqi prisoners of war who had expressed a desire 

for repatriation. That process was to continue until all Iraqi prisoners of war 

who desired repatriation were back in Iraq. 

Notes 

1. N.Y. Times, Aug. 11, 1987, at Al, col. 6. 

2. N.Y. Times, Aug. 25, 1987, at Al, col. 6. 

3. N.Y. Times, April 19, 1988, at Al, col. 6. 

4. 1910 Convention for the Unification of Certain Rules with Respect to Assistance and Salvage at Sea, 
37 Stat. 1658, 1672 (1910) (emphasis added). 

5. N.Y. Times, Sept. 22, 1987, at Al, col. 6. 

6. N.Y. Times, Sept. 23, 1987, at Al, col. 6. 

7. N.Y. Times, Oct. 9, 1987, at Al, col. 6. Although it has not been possible to ascertain whether the 
individuals in this latter group were Iranian naval personnel or members of the so-called "Revolutionary 
Guards," they were probably the latter. When queried on this point at the time of the first incident, the 
Administration spokesperson stated that the United States did not consider this question to be important. N.Y. 
Times, Sept. 25, 1987, at A8, col. 6. 



Splashed and Rescued 245 

8. After the September repatriation had been accomplished, the ICRC, which had been an observer at 
the turnover, delivered a note to the United States authorities in which it was asserted that "such situations 
and their consequences fell within the scope of the Geneva Conventions." 27 Int'l Rev. Red Cross 650 (No. 
261, November-December 1987). 

9. See 6 U.S.T. 3316, 3318, T.I.A.S. No. 3364, 75 U.N.T.S. 135, 136. 

10. Of course, neither the United States nor Iran recognized the existence of a state of war between them. 
During the early 1950s, when the Netherlands and Indonesia were engaged in hostilities over what was then 
Dutch New Guinea, the Netherlands took the position that the Convention was not applicable because both 
countries chose to consider that a state of war did not exist. F. Kalshoven, Constraints on the Waging of War 
27 (1987). 

11. HI Commentary on the Geneva Convention Relative to the Treatment of Prisoners of War 23 (J. 
Pictet ed. 1960) (emphasis added). Concerning the problem that arises when neither side recognizes the 
existence of a state of war, the Commentary further states: 

What would the position be, it may be wondered, if both the Parties to an armed conflict were 
to deny the existence of a state of war? Even in that event it would not appear that they could, by tacit 
agreement, prevent the Convention from applying. It must not be forgotten that the Conventions 
have been drawn up first and foremost to protect individuals, and not to serve State interests. 

12. N.Y. Times, Mar. 26, 1985, at Al, col. 6. 

13. N.Y. Times, Jan. 8, 1984, § 4, at 1, col. 1. 

14. N.Y. Times, Dec. 30, 1983, at A8, col. 1. 

15. N.Y. Times, Dec. 21, 1983, at A22, col. 6. It should be noted that the President made a major error 
in each of these two short sentences. He erred by implying that a "declared war" was a prerequisite for bringing 
the Convention into effect. He further erred in referring to the "Geneva Accords," the title given to the 
agreements that ended the French war in Indochina in 1954, instead of to the "Geneva Prisoner-of-War 
Convention." 

16. Typical of the latter type of incident was the "attack" on the German radio station by "Polish" troops 
which created the basis for Hitler going to war with Poland in 1939. 

17. See supra note 8. A representative of the ICRC has informed the author that the note did not refer 
to the specific incident but was a general note sent to all countries having naval forces in the Persian Gulf. 

18. See supra note 9; 6 U.S.T. at 3319, T.I.A.S. at 3364, 75 U.N.T.S. at 138. 

19. Letter of President Reagan to Congress, 24 September 1987, 87 Dep't of State Bull. 44 (No. 2128, 
Nov. 1987). 

20. This probably describes the Iranians involved in the October 1987 and the April 1988 incidents. 

21 . L.A. Times, Apr. 17, 1990, at A21 , col. 1 . Approximately forty thousand members of the Syrian Army 
have been in Lebanon for fifteen years and are still there. 

22. U.N. Doc. S/RES/678 (1990), reprinted in 29 I.L.M. 1565 (1990). 

23. See supra note 9. 

24. After obvious physical maltreatment, Iraq presented several of the pilots on television, a violation of 
article 13 of the Convention. With respect to Iraqi (and Iranian) treatment of prisoners of war during their 
conflict, see Prisoners of War in Iran and Iraq: The Report of a Mission Dispatched by the Secretary-General, 
U.N. Doc. S/16962, 22 February 1985, para. 51-158, 271-294. 

25. N.Y. Times, Feb. 25, 1991, at A14, col. 1; N.Y. Times, Feb. 26, 1991, at A14, col. 1; N.Y. Times, 
Feb. 28, 1991, at A10, col. 1. 

26. U. N. Doc. S/RES/686 (1991), reprinted in 30 I.L.M. 569 (1991). 

27. N.Y. Times, Mar. 6, 1991, at A14, col. 5. 

28. Bulletin of the International Committee of the Red Cross, April 1991, at 1, col. 2. 



XIV 

Nuclear, Chemical, and Biological Weapons 

The Law of Naval Operations 331 

(Naval War College International Law Studies No. 64, 

Horace B. Robertson ed., 1991) 

Introduction 

Chapter 10 of The Commander's Handbook on the Law of Naval Operations 
is concerned with nuclear, chemical, and biological weapons. While the 
extent that the use of these weapons, other than nuclear, will impinge on naval 
warfare (except in connection with naval surface and naval air bombardment of 
land objectives, riverine operations, etc.) is probably fairly limited, the draftsmen 
of the Handbook have deemed it appropriate to include a full chapter on these 
subjects — and righdy so. In addition to discussing the evolution and present 
status of the applicable rules of the international law of war with respect to each 
of those categories of weapons, this commentary will discuss the extent to which 
those rules affect naval warfare qua naval warfare and the extent to which they 
affect the operations of naval units against objectives on land. 

Nuclear Weapons 

When the first atom bomb exploded over Hiroshima on August 6, 1945, it 
began a new (and perilous) era for the planet Earth. It also began a controversy 
which has yet to be resolved to the satisfaction of a great many people. 

Not unexpectedly, sometime after the facts with respect to the nature of the 
atom bomb and the extent of the casualties and damage inflicted at Hiroshima 
and Nagasaki became generally known, an issue was raised as to the legality or 
illegality of the use of the atom bomb — and, subsequently, the same issue was, 
of course, raised as to the use of its far more powerful and devastating successors. 

In the discussion which follows it must be borne in mind that while there are a 

2 
number of conventions placing various types of restrictions on nuclear weapons, 

3 
there is no convention which specifically outlaws their use. In light of the 

complete failure of all of the practically endless efforts undertaken since 1945 to 

accomplish this result, to argue that the use of such weapons is prohibited by 

inference derived from the provisions of international agreements dating from 



248 Levie on the Law of War 

1868, from 1899, or from 1907, appears to be the equivalent of tilting at 
windmills. In view of the foregoing this writer concurs with the statement 
contained in the Handbook to the effect that, "There are no rules of customary 
or conventional international law prohibiting nations from employing nuclear 

A 

weapons in armed conflict." Nevertheless, a brief analysis of the arguments pro 
and con appears to be warranted. 

The 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, 
of Explosive Projectiles Under 400 Grammes Weight contained a number of 
humanitarian preambular clauses: 

That the only legitimate object which States should endeavour to accomplish 
during war is to weaken the military forces of the enemy; 

That for this purpose it is sufficient to disable the greatest possible number of 
men; 

That this object would be exceeded by the employment of arms which uselessly 
aggravate the sufferings of disabled men, or render their death inevitable; 

That the employment of such arms would, therefore, be contrary to the laws 
of humanity. 

During the course of the drafting of what became the 1899 Hague Convention 
(II) With Respect to the Laws and Customs of War on Land and its annexed 
Regulations, several provisions were included which have often been cited as 
affecting the subject under discussion. These provisions were: 

Art. 22. The right of belligerents to adopt means of injuring the enemy are not 
unlimited. 

Art. 23. In addition to the prohibitions provided by special Conventions, it is 
especially forbidden: 

(a) To employ poison or poisoned weapons; . . . 

(e) To employ arms, projectiles, or material of a nature to cause superfluous 
injury; . . . 

The cognate provisions of the 1907 Hague Convention (IV) Respecting the 
Laws and Customs of War on Land and its annexed Regulations are essentially 
identical with those quoted above. 

Realizing, however, that these and the other provisions that were to be 
included in the Regulations could not possibly cover all of the contingencies that 



NBC Weapons 249 

might arise during the course of a war, the Russian representative at the 1899 
Peace Conference, Martens, a noted international lawyer, proposed, and the 
Conference agreed, that a paragraph be included in the preamble which would 
read: 

Until a more complete code of the laws of war is issued, the High Contracting 
Parties think it right to declare that in cases not included in the Regulations 
adopted by them, populations and belligerents remain under the protection and 
empire of the principles of international law, as they result from the usages 
established between civilized nations, from the laws of humanity, and the 
requirements of the public conscience. 

Assuming that these preambular provisions are law-making in nature, a 
number of questions arise. Did the use of the atomic bombs in 1945 weaken 
the miHtary forces of the enemy? Did it uselessly aggravate the sufferings of 
disabled men, or render their death inevitable? Did it exceed the limits which 
a belligerent may adopt as a means of injuring the enemy? Did it constitute the 
use of "poison"? Did it represent the employment of a weapon "calculated to 
cause unnecessary suffering"? Did it constitute a failure to give the populations 
and belligerents "the protection and empire of the principles of international 
law, as they result from the usages established between civilized nations, from 
the laws of humanity, and the requirements of the public conscience" to which 
they were entitled? And, most important, if one or more of these questions is 
answered in the affirmative, does the particular principle apply if the alternative 
would have resulted in a million American military casualties and an even greater 
number of Japanese casualties, military and civilian? In other words, was the 
principle of proportionality applicable? While all of those questions have been 
posed here with respect to Hiroshima and Nagasaki, they will likewise have to 
be asked — and answered — before any future use of nuclear weapons. 

Literally hundreds of books and articles have been written on both sides of 
the questions posed and it is doubtful that any proponent of either side of the 
argument has been successful in convincing anyone who disagrees with his 
position that it is correct and that the other person's position is incorrect. The 
present writer does not propose to draw himself into that quagmire. Suffice it 
to say that nuclear weapons are with us and at the present time there does not 
appear to be any possibility that they will disappear, at least in the foreseeable 
future. Under those circumstances we can only hope that neither side will make 
the mistake of using them and thus bring an end to civilization, and to life itself, 
on this planet. 

There is, of course, an area of nuclear warfare in which navies would play an 
important role. A preemptive first strike by one side might possibly eliminate 
much of the other side's land-based nuclear deterrent force — but it could not 



250 Levie on the Law of War 

reach the deployed naval-based force, the submarines of which are the 
ever-mobile carriers of nuclear ballistic missiles. Thus, this potential naval 
retaliatory force, maintained by both parties involved in the eyeball-to-eyeball 
confrontation which has more or less existed since shortly after the end of World 
War II, is a major factor in the policy of deterrence. Moreover, the strength and 
speed of these nuclear-powered and nuclear-armed submarines are reputedly 
such that there are experts who believe that they can only be destroyed by nuclear 
weapons, such as nuclear-armed depth charges or nuclear-armed torpedoes. If 
such is the case, the use of these latter nuclear weapons becomes almost inevitable 
as during a period of active hostilities, whether we call it war or armed conflict, 
no nation and no navy is going to permit enemy nuclear-powered submarines 
armed with nuclear ballistic missiles to roam the seas unchallenged. 

One problem which arises is whether successful conventional-weapons 
attacks on nuclear-powered and nuclear-armed submarines (and surface vessels) 
would adversely affect the waters of the oceans and the air of the atmosphere. 
While the United States has lost two nuclear submarines with no such adverse 
effects, this is far from conclusive as the two crews would probably have shut 
down the nuclear reactors and any nuclear weapons aboard the submarines 
would not have been armed; accordingly, the amount of radioactivity released 
by each of those vessels would have been minimal. How much environmental 
damage would be caused by the sinking of a nuclear armed and nuclear-powered 
submarine with its reactor in operation appears to be a relative unknown. 
Moreover, should a war reach the nuclear stage, it is a virtual certainty that any 
naval engagement would include the use of nuclear weapons against the 
opposing enemy fleets. When this occurs the extent of the contamination of the 
oceans and of the atmosphere is incalculable as nuclear explosions would be 
taking place both in the atmosphere and in the water and nuclear-powered ships 
would be sunk with their reactors in operation. Of course, should a war reach 
the nuclear stage, such matters would be a small, and comparatively unimportant, 
part of the overall picture. 

The ballistic missiles carried by nuclear-powered submarines, referred to 
above, would, of course, if used, be directed against objectives on land. It is 
doubtful, but not inconceivable, that in a nuclear war a naval bombardment of 
objectives on land might include nuclear-armed shells and missiles. However, 
should a war reach that stage, the results of any such bombardment would be 
miniscule compared to the results that could be expected from landbased nuclear 
ballistic missiles, from the nuclear ballistic missiles released from below the 
surface of the seas, and from the nuclear weapons dropped from the air. 

It is probably necessary to conclude that if and when an armed conflict 
approaches the nuclear stage, law will play a very small role in determining the 
actions of the belligerents. 



NBC Weapons 251 

Chemical Weapons 

Chemical warfare agents have been defined as "chemical substances, whether 

gaseous, liquid, or solid, which might be employed because of their direct toxic 

1 1 
effects on man, animals and plants." 

The earliest formal international attempt to prohibit the use of chemicals in 

warfare occurred at the 1899 Hague Peace Conference which drafted and 

adopted a Declaration stating, "The Contracting Parties agree to abstain from 

the use of projectiles the sole object of which is the diffusion of asphyxiating or 

12 
deleterious gases." This Declaration was of unlimited duration. All of the major 

European Powers, including France, Germany, Russia, and the United 

Kingdom, signed and ratified it. The United States neither signed nor ratified 

it. 

The 1899 Declaration was in force during World War I. Despite this, 

Germany used gas against the Russians in Poland in January 1915. The gas was 

delivered by artillery shells but, because of the sub-zero weather, had little effect 

13 
and the incident passed almost unnoticed. The first major, and 

well-documented, use of gas occurred in France, on April 22, 1915, when the 

Germans opened containers of compressed chlorine, permitting a favoring wind 

1 4 
to blow the gas towards the Allied Ypres salient. The success of the operation 

far exceeded expectations and before the war was brought to an end more 

than three years later many other chemical weapons were being used by both 

sides and were being delivered by artillery, mortars, projectors, etc. The Treaty 

of Versailles, which legally terminated World War I as between Germany and 

the Allies, contained the following provision: 

Art. 171. The use of asphyxiating, poisonous or other gases and all analogous 
liquids, materials or devices being prohibited, their manufacture and importation 
are stricdy forbidden in Germany. 

The same applies to materials specially intended for the manufacture, storage 
and use of the said products or devices. 

The 1922 Washington Conference on the Limitation of Armaments, 
consisting of representatives of France, Italy, Japan, the United Kingdom, and 
the United States, drafted a treaty which was primarily concerned with 
submarine warfare but which included the following provisions: 

Art. 5. The use in war of asphyxiating, poisonous or other gases, and all 
analogous liquids, materials or devices, having been jusdy condemned by the 
general opinion of the civilized world and a prohibition of such use having been 
declared in treaties to which a majority of the civilized Powers are parties, 



252 Levle on the Law of War 

The signatory Powers, to the end that this prohibition shall be universally 
accepted as a part of international law binding alike the conscience and practice 
of nations, declare their assent to such prohibition, agree to be bound thereby as 
between themselves and invite all other civilized nations to adhere thereto. 

To become effective this treaty required the ratification of all of the participants 
in the Conference. France refused to ratify it because of objections to some of 
the provisions with respect to submarine warfare. Accordingly, the treaty never 
entered into force. However, three years later another conference, this one 
concerned with international trade in weapons and ammunition, drafted the 
1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, 
Poisonous or Other Gases, and of Bacteriological Methods of Warfare. While 
much of its wording was taken almost verbatim from the prior draftings, its 
importance warrants the setting forth of its operative provisions in their entirety: 

Whereas the use in war of asphyxiating, poisonous or other gases, and of all 
analogous liquids, materials or devices, has been jusdy condemned by the general 
opinion of the civilized world; and 

Whereas the prohibition of such use has been declared in Treaties to which 
the majority of Powers of the world are Parties; and 

To the end that this prohibition shall be universally accepted as a part of 
International Law, binding alike the conscience and the practice of nations; 

Declare: 

That the High Contracting Parties, so far as they are not already Parties to 
Treaties prohibiting such use, accept this prohibition, agree to extend this 
prohibition to the use of bacteriological methods of warfare and agree to be bound 
as between themselves according to the terms of this declaration. 

Strange to relate, while the United States had ratified the Washington Treaty, 
with its provision prohibiting the use of poisonous gases, just two years earlier, 
and was the chief proponent of the 1925 Geneva Protocol, it did not ratify the 
latter until 50 years later, in 1975! 

Many of the states which have ratified the 1925 Geneva Protocol have done 
so with a so-called "first use" reservation. Typical of those reservations is that 
of the United Kingdom: "The said Protocol shall cease to be binding on His 
Britannic Majesty toward any Power at enmity with him whose armed forces, 

or the armed forces of whose allies, fail to respect the prohibitions laid down in 

20 
the Protocol."' It does not appear that this "first use" reservation has ever been 

invoked despite the not-infrequent use of the prohibited gases. For example, 



NBC Weapons 253 

Italy, a party to the Protocol (as was Ethiopia), admittedly used poison gas in its 
1935-1936 war with Ethiopia. Japan, although a party to the 1899 Declaration, 

did not ratify the Protocol until after World War II. On June 5, 1942, President 

21 
Roosevelt warned the Japanese against the use of poisonous gas. While at that 

time Japan denied using such gas in China, it has never officially denied such 

use since the end of the war. Egypt, a Party to the 1925 Protocol (as was the 

Yemen Arab Republic), is alleged to have used gas in the civil war in Yemen. 

Iraq, also a party to the Protocol (as is Iran), has been accused of using gas in its 

recent war with Iran. In none of these cases is there evidence of retaliation in 

kind, probably because the victim of the gas attack was not in possession of a 

stock of chemical weapons. 

During World War II Hider on occasion considered the use of chemical 

weapons against England. However, he apparendy realized, or his military 

advisers were able to convince him, that Germany's opponents were well able 

to reply in kind and that, in the long run, the use of such weapons would be 

self-defeating to Germany. On June 5, 1943, President Roosevelt warned 

Germany that the use of chemical weapons by any Axis country against any one 

of the United Nations would result in "swift retaliation in kind," specifying that 

the targets would be "munition centers, seaports, and other military objectives 

throughout the whole extent of the territory of such Axis country.'" With the 

possible exception of Japanese use in China, chemical weapons were not used 

by any belligerent during World War II. 

The General Assembly of the United Nations has adopted a number of 

27 
resolutions on the subject of chemical warfare. A resolution adopted in 1968, 

among other things, requested the Secretary-General to prepare, with the 

assistance of experts, a report on chemical and bacteriological (biological) 

weapons. This report, which was submitted to the General Assembly in 1969, 

found that "because of the scale and intensity of the potential effects of their use, 

they are considered as w 

the following statement: 



29 
they are considered as weapons of mass destruction." The report contained 



The general conclusion of the report can thus be summed up in a few lines. 
Were these weapons ever to be used on a large scale in war, no one could predict 

how enduring the effects would be, and how they would affect the structure of 

30 
society and the environment in which we live. 

Upon the receipt of that report the General Assembly adopted a resolution to 
the effect that the 1925 Geneva Protocol "embodies the generally recognized 
rules of international law prohibiting the use in international armed conflict of 
all biological and chemical methods of warfare." Of course, this merely 
represented the political judgment of those nations which voted in favor of the 
resolution. 



254 Levie on the Law of War 

The need to maintain a supply of chemical weapons for use in retaliation 
against a violator of the provisions of the 1925 Geneva Protocol, or any other 
"first user," has created the longtime problem of finding a safe method for the 
disposition of overage gas, with leaky containers adding to the difficulties of the 
possessor. One technical advance in this field, the so-called "binary" gases, will 
considerably alleviate this problem. These gases consist of two non-toxic 
chemicals which only become toxic when mixed, an action which is 
accomplished while, for example, an artillery shell is in flight. A representative 
of the Chemical Corps of the United States Army listed the advantages of binary 
weapons as including "improved safety during production, transportation and 
storage; no requirement for high-cost toxic production facilities; and simplified 
low-cost demilitarization procedures." 

A number of problems have arisen with respect to the interpretation of the 
1925 Geneva Protocol. One such problem is whether it includes within its 
prohibitions the use of smoke, sometimes a major weapon in naval warfare, and 
the use of riot control agents, such as lachrymatories, or tear gas. The argument 
against the use of smoke, that it at least temporarily incapacitates due to a type 
of asphyxia, is weak and is not very frequently advanced. Originally the British 

interpreted the provisions of the 1925 Geneva Protocol as covering 

33 
lachrymatories. However, deeming it an essential weapon for use in Northern 

Ireland, in 1970 the British Government took the position that "CS and other 

34 
such gases" were not prohibited by the 1925 Geneva Protocol. Practically all 

governments use lachrymatories domestically for the suppression of such events 

as riots and other civil disturbances. Nevertheless, the propriety of their use in 

armed conflict remains a matter of dispute. 

A further problem of interpretation is whether the Protocol includes within 

its prohibitions the use of herbicides. This problem arose during World War II 

when the question was raised as to whether it would be in accordance with 

international law to use "crop-destroying chemicals" on the gardens being 

grown by Japanese units located on by-passed islands of the Pacific. Although 

the Judge Advocate General of the Army found no legal impediment to such 

action, no action was taken, probably because it would have been a waste of 

resources. During the hostilities in Vietnam herbicides were used extensively, 

both for crop destruction and as a defoliant. When the issue was raised in the 

Senate during the consideration by that body of the 1925 Geneva Protocol, the 

General Counsel of the Department of Defense arrived at the same conclusion 

37 
the Army had reached in 1945. ' Nevertheless, as will be noted below, the 

United States has renounced the first use of herbicides except for certain 

38 
extremely limited purposes. 

Another such problem of interpretation is whether incendiary weapons are 

within the prohibitions of the Protocol. The United States has long taken the 



NBC Weapons 255 

position that there is no rule of international law prohibiting the use of incendiary 
weapons. At a conference of experts convened in 1969 by the International 
Committee of the Red Cross, some of the experts were of the opinion that the 
use of incendiary weapons, and particularly napalm, was prohibited by the 1925 
Geneva Protocol because, by burning the oxygen, it "causes a sort of asphyxia." 
Others took the position that incendiary weapons were not prohibited but were 
subject to "discriminating" use. The ICRC concluded that "more extensive 
studies should be made of the consequences of incendiary weapons in order to 
reach a clear legal solution as to their employment." The U.N. Report with 
respect to chemical and bacteriological (biological) weapons, published that same 
year, contains the following relevant statement: 

We also recognize that there is a dividing line between chemical agents of 
warfare, in the sense in which we use the terms, and incendiary substances, such 
as napalm and smoke, which exercise their effects through fire, temporary 
deprivation of air or reduced visibility. We regard the latter as weapons which are 
better classified with high explosives than with the substances with which we are 
concerned. They are therefore not dealt with further in this report. 

Studies were subsequently made by a group of experts appointed by the 

Secretary-General of the United Nations, by the Stockholm Peace Research 

Institute (SIPRI), and by the ICRC itself in 1973, in 1974, and in 1976; and 

probably by other organizations and institutions. The U.N. experts found it 

appropriate "to bring to the attention of the General Assembly the necessity of 

working out measures for the prohibition of the use, production, development 

and stockpiling of napalm and other incendiary weapons" — a clear indication 

of their understanding that there was no such prohibition then extant. The 

author of the SIPRI report stated that "there was never any positive indication 

that the intention of the [1925] Geneva Protocol was to prohibit incendiaries." 

The ICRC studies were inconclusive. Finally, the subject was discussed by 

the Ad Hoc Committee on Conventional Weapons of the Diplomatic 

Conference on the Reaffirmation and Development of International 

45 
Humanitarian Law Applicable in Armed Conflicts and the Diplomatic 

Conference adopted a resolution in which it recommended the convening of a 

conference to draft agreements on certain conventional weapons. Such a 

conference was held in 1980 and resulted in, among others, a Protocol on 

Prohibitions or Restrictions on the Use of Incendiary Weapons. This Protocol 

does not prohibit the use of incendiaries; it merely places certain restrictions on 

the manner in which they may be used. The sum total to be derived from the 

foregoing survey is, of course, that incendiary weapons do not come within the 

purview of the prohibitions of the 1925 Geneva Protocol or, for that matter, of 

any other international agreement on the law of war. 



256 Levie on the Law of War 

The 1980 Protocol provides that it is prohibited "to make the civilian 
population, individual civilians or civilian objects the object of attack by 
incendiary weapons." (Of course, the law of war generally prohibits such attacks 
by any weapon!) Such a prohibition, and the accompanying restrictions on the 
use of air-delivered and other types of incendiary weapons intended to 
implement that prohibition, would obviously have no effect on naval 
engagements at sea. However, they would be applicable with respect to naval 
bombardments of land targets, either by warships or by aircraft, and with respect 
to the use of incendiaries by marines ashore. 

Now let us see where the United States stands generally on the question of 
chemical warfare. It has already been mentioned that the United States did not 
ratify the 1899 Declaration and that the 1925 Geneva Protocol was not ratified 
by it until 1975. During that 50-year interim period the position of the United 
States with respect to chemical warfare was well summed up in the predecessor 
to the Handbook, which contained the following statement: 

The United States is not a party to any treaty now in force that prohibits or 
restricts the use in warfare of poisonous or asphyxiating gases or of bacteriological 
weapons. Although the use of such weapons frequently has been condemned by 
states, including the United States, it remains doubtful that, in the absence of a specific 
restriction established by treaty a state legally is prohibited at present from resorting to their 
use. However, it is clear that the use of poisonous gas or bacteriological weapons 

may be considered justified against an enemy who first resorts to the use of these 

rr ,-.48 

weapons, [rootnotes omitted) 

The United States has almost uniformly taken the position that there is no 
customary law prohibiting the use of these weapons. During the hostilities in 
Vietnam the United States used two controversial types of chemical weapons - 
tear gas and herbicides. Tear gas was originally used for humanitarian 
purposes but its utility as a non-lethal gas quickly became apparent and it was 
widely used for a number of purposes. 4 ' This created considerable discussion 
both in the United States and elsewhere in the world with the result that on 
November 25,1969, President Nixon issued a statement in which he said that 
he was resubmitting the 1925 Geneva Protocol to the Senate for its advice and 
consent to ratification and that the United States "Reaffirms its oft-repeated 
renunciation of the first use of lethal chemical weapons" and "Extends this 
renunciation to the first use of incapacitating chemicals." 

After extensive hearings and further commitments by the Executive Branch, 
the Senate gave its advice and consent to the ratification of the 1925 Geneva 
Protocol and President Ford ratified it on January 22, 1975. The ratification 
was deposited, and the Protocol became binding on the United States, on April 



NBC Weapons 257 

10, 1975. On April 8, 1975, President Ford signed Executive Order 11,850 
which provides: 

The United States renounces, as a matter of national policy, first use of 
herbicides in war except use, under regulations applicable to their domestic use, 
for control of vegetation within U.S. bases and installations or around their 
immediate defensive perimeters, and first use of riot control agents in war except 
in defensive military modes to save lives such as: 

(a) Use of riot control agents in riot control situations in areas under direct and 
distinct U.S. military control, to include controlling rioting prisoners of war. 

(b) Use of riot control agents in situations in which civilians are used to mask 
or screen attacks and civilian casualties can be reduced or avoided. 

(c) Use of riot control agents in rescue missions in remotely isolated areas, of 
downed aircrews and passengers, and escaping prisoners. 

(d) Use of riot control agents in rear echelon areas outside the zone of 
immediate combat to protect convoys from civil disturbances, terrorists and 
paramilitary organizations. 

Fortunately, since the issuance of that Executive Order, the United States has 
not been involved in any armed conflict which would make its application 
appropriate. However, the Handbook, issued in 1987, further illuminates the 
United States position with respect to the use of chemical weapons. It will be 
recalled that its predecessor, The Law of Naval Warfare, stated that it would be 
difficult to hold that use of such weapons was prohibited by customary 
international law. In a complete turnabout, the Handbook says: 

The United States considers the prohibition against first use of lethal and 
incapacitating chemical weapons to be part of customary international law and, 
therefore, binding on all nations whether or not they are parties to the 1925 Gas 
Protocol. 

It will be interesting to record the reactions to this position of states which are 

still not parties to the 1925 Protocol and which have not committed themselves 

58 
in the General Assembly of the United Nations. 

As we shall see, there is in existence a Convention which supplements the 

1925 Geneva Protocol by prohibiting the development, production, and 

stockpiling of biological agents and their delivery weapons. Although separate 

proposals made in 1 962 by both the Soviet Union and the United States included 

similar provisions with respect to chemical weapons, both the United 



258 Levie on the Law of War 

Kingdom and the United States later insisted on separating chemical weapons 
from the others. As a result, despite fairly continuous efforts, the only restriction 
on chemical weapons at the present time is the 1925 Geneva Protocol which 
prohibits use only. 

In 1984 then Vice President Bush went to Geneva to attend a meeting of the 
Conference on Disarmament (CD) and to table a United States proposal which 
sought to accomplish for chemical weapons what had already been accomplished 
for biological weapons. It has since been under consideration in the CD, which 
subsequendy drafted and studied a 1 987 revision. In January 1 989 a conference 
hosted by the French Government in Paris adopted a resolution calling for 
reaffirmation of the 1925 Geneva Protocol and stressed "the necessity of 
concluding, at an early date, a convention on the prohibition of the 
development, production, stockpiling and use of all chemical weapons and on 
their destruction." In July 1989 the United States and the Soviet Union 
reached agreement on the key remaining issues and currendy (December 
1989) the CD is working on a May 1989 version with changes made up to 
15 October 1989. In view of the insistence of the United States on 
"anywhere-anytime" inspections, it is of interest to know that the Soviet Union 
has agreed to permit "surprise inspections" and that it is now the United States 
which has a problem in this respect in view of the Fourth Amendment to the 
Constitution, prohibiting "unreasonable searches and seizures." 

The wheels of diplomacy grind slowly (witness the years of discussion of the 
1982 U.N. Law of the Sea Convention and of the 1977 Protocols ), so there 
is still the possibility that in the not-too-distant future there will be agreement 
on a Convention which will prohibit the development, production and 
stockpiling of chemical agents and their delivery systems, as well as providing 
for the destruction of all such chemical agents now in the arsenals of parties to 
such a Convention. 

Bacteriological (Biological) Weapons 

70 
Bacteriological (biological) weapons have been defined as "living 

organisms, whatever their nature, or infective material derived from them, which 

are intended to cause disease or death in man, animals or plants, and which 

depend for their effects on their ability to multiply in the person, animal or plant 

attacked." International restrictions on the use of biological weapons present 

far fewer legal problems than do those on the use of chemical weapons. In fact, 

the legal situation is so clear that the major problem is, once again, that of 

ensuring compliance. 

It will be recalled that by the declaration contained in the 1925 Geneva 

Protocol the Parties agreed "to extend the prohibition [against the use of 

poisonous gas] to the use of bacteriological methods of warfare." ' The League 



NBC Weapons 259 

of Nations Disarmament Conference discussed the matter and attempted, albeit 
unsuccessfully, to draft a treaty which would have prohibited the production 
and stockpiling of both chemical and biological weapons. During World War 
II considerable scientific research was done on biological weapons. However, 
no such weapons were used by either side, with one possible exception. The 
Soviet Union has long contended that during World War II the Japanese had a 
unit called "Bacteriological Detachment 731" located at Harbin in China and 
that this unit had conducted bacteriological experiments on several thousand 
Chinese, Koreans, Russians, and, perhaps, Americans. When the war ended, 
many of the senior officers of this unit were taken into Soviet custody and in 
December 1949 twelve of them were tried by a Soviet court at Khabarovsk, 
were found guilty of engaging in bacteriological warfare, and received sentences 

of confinement in a labor correction camp for terms varying from two to 

73 
twenty-five years. In 1982 the Japanese Government acknowledged that such 

a unit had existed during the war. Assuming that the Soviet charges are correct, 

it would appear that the activities of the Japanese unit never passed the 

experimental stage, that it never reached the stage of actual use of biologicals 

against enemy military forces as a weapon of war. 

In 1962 the Soviet Union tabled at the meeting of the Eighteen Nation 

Disarmament Committee (ENDC) a proposal for general and complete 

disarmament which included the following provision: "The prohibition, and 

destruction of all stockpiles, and the cessation of the production of all kinds of 

weapons of mass destruction, including atomic, hydrogen, chemical, biological 

75 
and radiological weapons." 

A few weeks later the United States submitted its counterproposal with a 
provision which called for "Elimination of all stockpiles of nuclear, chemical, 
bacteriological, and other weapons of mass destruction and cessation of the 
production of such weapons." 

In view of the close similarity of the two proposals, it would seem that 

agreement with respect at least to chemical and biological weapons could have 

77 
been quickly attained. However, such was not the case. There were those 

who took the position that chemical and biological weapons should not be joined 

in the same treaty as there was experience with chemical weapons, but none 

with biologicals. While the relevance of this argument is far from clear, it was 

sufficient to delay the affirmative action which might otherwise have been taken. 

Finally, in 1969 the United Kingdom submitted a proposal which called for a 

complete ban on "microbial or other biological agents," but made no mention 

of chemical weapons. When, in 1971 , the United States and the Soviet Union 

79 
tabled identical drafts relating to biologicals only, the result was a foregone 

conclusion. Using that draft as a working document the Conference of the 

Committee on Disarmament (CCD, which had replaced ENDC) produced a 






260 Levie on the Law of War 

Convention on the Prohibition of the Development, Production and 

Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their 

t^ 80 T 

Destruction. Its most important provision states: 

Art. 1. 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; 

(2) Weapons, equipment or means of delivery designed to use such agents or 
toxins for hostile purposes or in armed conflict. 

It also contains provisions requiring each State Party to destroy all of the items 
specified in Article 1 within nine months of the Convention coming into force 
(presumably, for the State concerned); and an undertaking not to transfer to any 
recipient, or to encourage the manufacture of, any of the prohibited items. 

It is thus evident that States Parties to the 1925 Geneva Protocol and to the 
1972 Bacteriological Convention are prohibited from developing, manufacturing, 
stockpiling, acquiring, retaining, or using biological weapons In view of the coverage 
of the Convention, nations have not made "first use" reservations. The two 
international agreements were intended to, and should eliminate biologicals 
from the arsenals of all such Parties and should mean that in any future war, large 
or small, limited or unlimited, conventional or unconventional, biologicals 
would not be a factor. Unfortunately, events have already demonstrated that 
these expectations will not be met. 

A catastrophe occurred in Sverdlovsk in the Soviet Union in 1980 in which 
more than 1,000 people died as a result of what appears to have been anthrax 

poisoning, although Soviet officials claimed that the deaths had been caused by 

81 
meat contaminated by hoof-and-mouth disease. In addition, the United States 

has contended that the Soviet Union, either direcdy or through surrogates, has 

used biological (as well as chemical) weapons in Southeast Asia and in 

82 
Afghanistan. ' If, as is generally believed, the Sverdlovsk incident involved 

anthrax, and if, as the United States contends, biologicals have been used by the 

Vietnamese in Kampuchea and Laos and by the Soviet Union in Afghanistan, 

then the Soviet Union is manufacturing and using biologicals contrary to the 

provisions of the two agreements to which it is a party. Unfortunately, the 1925 

Geneva Protocol contains no provision for verification and the only provision 

for verification contained in the 1 972 Convention is a meaningless one providing 

for resort to the Security Council. 



NBC Weapons 261 

The predecessor to the Handbook, published at a time when the United States 
was not a party to the 1925 Geneva Protocol and when the 1972 Bacteriological 
Convention had not yet been drafted, stated: 

The United States is not a party to any treaty now in force that prohibits or 
restricts the use in warfare . . . of bacteriological weapons. Although the use of 
such weapons frequendy has been condemned by states, including the United 
States, it remains doubtful that, in the absence of a specific restriction established 
by treaty, a state legally is prohibited at present from resorting to their use. 
[Footnotes omitted.] 

This was probably a fair statement of the United States position until November 

25, 1969, when President Nixon, on behalf of the United States, renounced the 

84 
use of biological weapons by this country. Three months later he included 

toxins in this renunciation. " Then this country became a party to the 1972 

Bacteriological Convention and in 1975 it finally ratified the 1925 Geneva 

Protocol with its ban on the use of biologicals. Once again, however, it appears 

that the Handbook may be going too far when it asserts: 

The United States considers the prohibition against the use of biological 
weapons during armed conflict to be part of customary international law and 
thereby binding on all nations whether or not they are parties to the 1925 Gas 
Protocol or the 1972 Biological Weapons Convention. 

Can it be that while at a particular point in time a principle may not necessarily 
be a binding rule of customary international law, it becomes such as soon as the 
United States ratifies a treaty containing that principle? Certainly, the United 
States did not consider itself bound by any rule of customary international law 
prohibiting the use of biologicals when it issued its military manuals in 1955 and 
1956; nor did it consider itself so bound at any time thereafter, even when (and 
until) President Nixon made his 1969 and 1970 statements unilaterally 
renouncing the use of biologicals and toxins. Would the 50 or more nations 
which are not parties to the 1925 Geneva Protocol and the 50 or more nations 
which are not parties to the 1972 Bacteriological Convention agree with the 
quoted statement? Or is this statement, and the similar one with respect to 
chemical weapons quoted above, inserted in order to convince non-parties that 
they might just as well ratify the agreements as they are bound by them in any 
event? 

In view of the mobility of naval forces, it has always been considered unlikely, 
but not impossible, that naval vessels at sea will have to meet the problem of 
defending themselves against an attack using biological (or chemical) weapons. 
Should such an attack occur, for example by guided missiles which succeed in 



262 Levie on the Law of War 

penetrating the vessel's defenses and dispense the lethal item, the attack would 
have a devastating effect because air-intake systems would quickly disseminate 
it throughout the interior of the vessel, or because concurrent high-explosive 
ordnance would have pierced the shell of the ship. Items such as masks, special 
clothing, etc., available for the protection of the individual members of the crew, 
would greatly impede the functioning of the crew, even if there was time to 
don them. In addition, naval vessels, naval guns and naval aircraft might well be 
among the weapons systems used for the delivery of biologicals against land 
targets, should biologicals ever be used in wartime. Thus, in a field trial, a ship 
sailing 1 6 kilometers offshore travelled a distance of 260 kilometers parallel to 
the coastline discharging a harmless powder. The resulting aerosol covered an 
area of over 75,000 square kilometers. Had the material disseminated been a 
biological "depending on the organism and its degree of hardiness, areas from 
5,000 to 20,000 square kilometers could have been effectively attacked, infecting 
a high proportion of unprotected people in the area." 

Conclusions 

There is no law in force, conventional or customary, which prohibits the use 
of nuclear weapons. However, there can be no winners, but only losers, no 
victors, but only vanquished, in the event of a nuclear war. Whether or not a 
war in which nuclear powers are involved becomes a nuclear war will depend 
upon the wisdom and leadership of the political leaders of those powers and 
upon the extent to which the desire to win the war outweighs a reluctance to 
bring disaster not only upon the enemy, but also upon their own people and 
upon the peoples of neutral nations. 

Chemical and biological weapons, like nuclear weapons, are weapons of mass 
destruction. Once released they are beyond the control of the user and, like 
nuclear weapons, their effects can come back to haunt the user. The use of 
certain chemicals can have widespread, long-lasting, and severe consequences 
for the environment and for the populations. This is even more true with respect 
to the use of many biologicals. The use of either of these types of weapons is 
prohibited by an international agreement to which more than two-thirds of the 
nations of the world community are parties. The very existence of biological 
weapons is prohibited by an international agreement with a similar amount of 
participation. Hopefully, there will, in due course, be an identical prohibition 
with respect to chemical weapons. 

In view of the tremendous lethal and destructive capabilities of nuclear, 
chemical, and biological weapons one might almost regret our inability to 
turn the clock back to the nineteenth century, when nuclear, chemical, and 
biological weapons, as we now know them, were not even a gleam in a 
scientist's eyes. 



NBC Weapons 263 
Notes 

1. The Commander's Handbook on the Law of Naval Operations, Naval Warfare Publication 9 (NWP 9) 
(1987) [hereinafter cited as Handbook], It replaces the Law of Naval Warfare, Naval Warfare Information 
Publication 10-2 (NWIP 10-2) (1955). 

2. See, e.g., Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, 
August 5, 1963, United States Treaties and Other International Agreements [hereinafter U.S.T.], v. 14. p. 1313, 
T.I.A.S. No. 5433, United Nations Treaty Series [hereinafter U.N.T.S.], v. 480, p. 43, reprinted in International 
Legal Materials [hereinafter I.L.M.], v. 2., p. 883 (1963); Treaty on Principles Governing the Activities of States 
in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 
U.S.T., v. 18, p. 2410, T.I.AS. No. 6347, U.N.T.S., v. 610, p. 205, I.L.M., v. 6, p. 386 (1967); Treaty on 
the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the 
Seabed and the Ocean Floor and in the Subsoil Thereof, Feb. 11, 1971, U.S.T., v. 23, p. 701, T.I.A.S. No. 
7337, I.L.M., v. 10, p. 145 (1971). The Handbook, par. 10.2., lists six multilateral treaties and a number of 
bilateral treaties on the subject. 

3. Resolutions of the General Assembly of the United Nations, such as Res. 1653 and Res. 2936 (United 
Nations, General Assembly, Official Records: Resolutions adopted by the General Assembly during its Sixteenth Session 
19 September 1961-23 February 1962, Resolution 1653, A/5100 (New York: 1962), p. 4 and id., Twenty-Seventh 
Session 19 September-19 December 1972, Res. 2936, A/8730 (New York: 1973), p. 5) are nothing more than 
pious, and sometimes self-serving, declarations having no legal significance. 

4. Handbook, par. 10.2.1. In Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World 
Public Order (New Haven: Yale University Press, 1961), p. 659, the authors state, "The continuing attempts, 
however, by various governments and groups to 'outlaw' nuclear weapons tend to sustain the impression that 
such weapons are regarded as permissible pending the achievement of agreement to the contrary." 

5. American Journal of International Law (Supp.) [hereinafter A.J.I.L. (Supp.)], v. 1, p. 95 (1907); Dietrich 
Schindler and Jiri Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other 
Documents, 3rd ed. (Dordrecht, Netherlands: Martinus NijhofF Publishers, 1988), p. 101 [hereinafter cited as 
Schindler & Toman]. The United States is not a party to this Declaration and apparently does not consider 
that it has become customary international law. In the U.S. Army's FM 27-10, The Law of Land Warfare 
(Washington: U.S. Govt. Print. Off., 1956), par. 34, there is a list of various illegal weapons. Those covered 
by this Declaration are not included in that list. Nevertheless it would be difficult to quarrel with the quoted 
preambular provisions. 

6. U.S. Statutes at Large, v. 32, p. 1803, reprinted in A.J.I.L. (Supp.), v. 1, p. 129 (1907). 

7. U.S. Statutes at Large, v. 36, p. 2277, reprinted in A.J.I.L. (Supp.), v. 2, p. 90 (1908). Unfortunately, 
when the Department of State made its official translation from French to English in 1907, the translators did 
not refer back to the 1899 translation, with the result that there are some small but unimportant differences 
in wording between the two English versions. 

8. See supra notes 6 and 7. When preparing the working document for the Diplomatic Conference which 
was to meet in 1974 in an attempt to bring the 1907 Hague Convention (IV) and the 1949 Geneva Conventions 
up to date, the International Committee of the Red Cross [hereinafter referred to as ICRC] included a version 
of the Martens clause in the preamble. Official Records of the Diplomatic Conference on the Reaffirmation and 
Development of International Humanitarian Law Applicable in Armed Conflicts (Bern: Federal Political Department, 
1978), v.l, part III, p. 3 [hereinafter Official Records]. The Diplomatic Conference moved this provision to a 
more prominent place, as Article 1(2) of the 1977 Protocol Additional to the Geneva Conventions of 12 
August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I). Official 
Records, v. 1, part I, p. 126, reprinted in I.L.M., v. 6, p. 1396 (1977), and Schindler & Toman, supra note 5, 
p. 621 at p. 628 [hereinafter cited as Protocol I]. 

9. There were an estimated 80,000 casualties at Hiroshima and 65,000 at Nagasaki. The potential 
casualties referred to in the penultimate question were the estimates of what would occur in the event of armed 
landings on the home islands ofjapan. These estimates appear, among other places, in Henry L. Stimson, "The 
Decision to Use the Atomic Bomb," Bulletin of Atomic Scientists, v. 3, no. 2, p. 40 (1947), and in Winston S. 
Churchill, The Second World War, v. VI, Triumph and Tragedy (Boston: Houghton Miflin, 1953), p. 638, where 
he estimates one million American dead and one-half million British dead. 

10. Such an engagement would, of course, be fought in an area isolated from the civilian population and 
civilian objects — but the reactor accident at Chernobyl, in the Ukraine, in April 1986 demonstrated the distance 
which radioactivity can travel. It was detected in the Scandinavian countries a few days after it had occurred 
(Serge Schmemann, "Soviet Announces Nuclear Accident at Electric Plant," New York Times, April 29, 1986, 
p. Al:6) and was subsequently detected as far west as the United Kingdom (Francis X. Clines, "Chernobyl 
Cloud Keeps Welsh Lamb Off Table," id., July 3, 1986, p. Al:2). In addition, one recent newspaper article 



264 Levie on the Law of War 

states that "many studies indicate the radiation released by a nuclear anti-aircraft missile would disable the radar 
gear on which the U.S. surface navy increasingly relies, and the shock waves sent through the sea from a 
nuclear antisubmarine rocket could disable any U.S. subs in the area." Boston Globe, Dec. 18, 1989, p. 3:8. 

11. United Nations, Chemical and Bacteriological (Biological) Weapons and the Effects of Their Possible Use: 
Report of the Secretary -General, A/7575/Rev. 1 (New York: 1969), par. 19 [hereinafter cited as U.N. Report]. 
There are many types of poisonous and asphyxiating gases (choking, blister, nerve, blood, etc.) and many 
different such gases within each type (chlorine and phosgene are both choking gases; mustard and lewisite are 
both blister gases). Nerve gases were developed by Germany before World War II but, happily, were never 
used. Since then even more effective nerve gases have been developed. 

12. A.J.I.L. (Supp.), v. 1, p. 157 (1907); Schindler & Toman, supra note 5, p. 105. 

13. SLA. Marshall, World War I (New York: American Heritage, 1971), p. 157. 

14. Id., pp. 163-66. Actually, the reason for the rather unusual method of delivery was that the amount 
of gas that could be delivered by the available types of artillery shells was so small that they could only be used 
for very limited objectives. The effect of gas as an offensive weapon was probably not fully appreciated because 
of the lack of results three months earlier in Poland. 

15. It has sometimes been argued that the German action at Ypres did not violate the 1899 Declaration 
because no projectiles were used. The Commission on the Responsibility of the Authors of the War and on 
Enforcement of Penalties established by the Diplomatic Conference, which was drafting the Treaty of 
Versailles, refused to accept this thesis and listed the use of poison gas as one of the war crimes committed by 
Germany during the course of the war. See A.J.I.L. (Supp.), v. 14, p. 115 (1920). 

16. According to the U.N. Report, supra note 11, par. 3, during World War I "gas casualties numbered 
about 1,300,000, of which about 100,000 were fatal." 

17. A.J.I.L. (Supp.), v. 13, p. 151 at p. 230 (1919). 

18. Treaty Relating to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, A.J.I.L. 
(Supp.), v. 16, p. 59 (1922); Schindler & Toman, supra note 5, p. 877 at p. 878. 

19. U.S.T., v. 26, p. 571, T.I.A.S. No. 8061, League of Nations Treaty Series [hereinafter L.N.T.S.], v. 94, 
p. 65, Schindler & Toman, supra note 5, p. 115. 

20. L.N.T.S., v. 94, p. 69; Schindler & Toman, supra note 5, p. 126. As of January 1, 1989, there were 
135 parties to the 1925 Geneva Protocol, of which 50 had made reservations, many of the "first use" variety. 
U.S. Department of State, Treaties in Force -January 1, 1989, pp. 311-12. 

21. "Warning to Japan Regarding the Use of Poisonous Gases," Department of State Bulletin, June 6, 1942, 
v. 6, p. 506. 

22. "Tokyo Denies Using Gas," New York Times, June 9, 1942, p. 2:3. 

23. A list of the "Instances and Allegations of CBW, 1914-1970" will be found in Stockholm International 
Peace Research Institute, The Problem of Chemical and Biological Warfare, v. 1, The Rise of CB Weapons 
(Stockholm: Stockholm International Peace Research Institute, 1971), pp. 125-230. 

24. In a conference with a number of American officials and military officers in October 1941 concerning 
a possible German landing in England, Churchill said, "The enemy may use gas, but if so it will be to his own 
disadvantage, since we have arranged for immediate retaliation and would have admirable concentrated targets 
in any lodgments he might make on the coast. Gas warfare would also be carried home to his own country." 
Winston S. Churchill, 77ie Second World War, v. Ill, 77ie Grand Alliance (Boston: Houghton Miflin, 1950), p. 
425. See also Marjorie M. Whiteman, Digest of International Law (Washington: U.S. Govt. Print. Off., 1968), 
v. 10, pp. 464-65. 

25. "Use of Poison Gas," Department of State Bulletin, June 12, 1943, v. 8, p. 507. 

26. Lynwood B. Lennon, "Defense Planning for Chemical Warfare," in Matthew Meselson, ed., Chemical 
Weapons and Chemical Arms Control (New York: Carnegie Endowment for International Peace, 1978), p. 1; 
Barton J. Bernstein, "Why We Didn't Use Poison Gas in World War II," American Heritage, August-September 
1985, p. 40. 

27. E.g., United Nations, General Assembly, Official Records: Resolutions adopted by the General Assembly 
during its Twenty-First Session 20 September-2- December 1966, Res. 2162 B, A/6316 (New York: 1967), pp. 
10-11. 

28. United Nations, General Assembly, Official Records: Resolutions adopted by the General Assembly during 
its Twenty-Third Session 24 September-21 December 1968, Res. 2454 A, A/7218 (New York: 1969), p. 11. 

29. U.N. Report, supra note 11, par. 369. 

30. Id., par. 375. 

31. United Nations, General Assembly, Official Records: Resolutions adopted by the General Assembly during 
its Twenty-Fourth Session 16 September -11 December 1969, Res. 2603 A, A/7630 (New York: 1970), p. 16. 
The vote was 80-3-36 with the United States casting one of the three negative votes. United Nations Office 
of Public Information, 1 969 Yearbook of the United Nations (New York: 1970), p. 30. 



NBC Weapons 265 

32. U.S. Congress, House, Committee on Foreign Affairs, Subcommittee on National Security Policy 
and Scientific Developments, U.S. Chemical Warfare Policy, Hearings, 93rd Cong., 2nd Sess. (Washington: 
U.S. Govt. Print. Off.,, 1974) , p. 29. 

33. Memorandum on Chemical Warfare Presented to the Preparatory Commission for the Disarmament Conference 
by the Delegation of the United Kingdom, Cmd. 4, no. 3747 (1930). 

34. Anthony Lewis, "Britain Asserts CS Gas is not Banned," New York Times, Feb. 3, 1970, p. 3:6. "CS 
was the tear gas originally used by the United States in Vietnam. It has been the standard tear gas used by 
police throughout the world. Presumably the term "other such gases" as used by the British refers to CS-1 
and CS-2, the later versions of CS. 

35. Judge Advocate General Myron C. Cramer to the Secretary ofWar, SPJGW 1945/164, March 1945, 
"Memorandum concerning Destruction of Crops by Chemicals," I.L.M., v. 10, p. 1304 (1971). It should be 
borne in mind that at the time this memorandum was written, the United States was not a party to the 1925 
Geneva Protocol. 

36. Howard S. Levie, "Weapons of War," in Peter D. Trooboff, ed., Law and Responsibility in Warfare 
The Vietnam Experience (Chapel Hill, N.C.: University of North Carolina Press, 1975), p. 153 at p. 158 
[hereinafter cited as Trooboffj . 

37. Letters from the General Counsel, Department of Defense, to the Chairman, Senate Committee on 
Foreign Relations, April 5, 1971, reprinted in I.L.M., v. 10, pp. 1300 and 1303 (1971). 

38. See Executive Order 11,850, infra note 55 and accompanying text. 

39. The predecessor to the Handbook, supra note 1, stated, "Weapons of chemical types which are at times 
asphyxiating in nature, such as white phosphorus, smoke, and flame throwers, may be employed." The Law of 
Naval Warfare (NWIP 10-2), par. 612a (emphasis added), reprinted in the appendix to Robert W. Tucker, 
Naval War College International Law Studies, 1955: The Law of War and Neutrality at Sea (Washington: U.S. 
Govt. Print. Off., 1957), p. 410. To the same effect, see the U.S. Army's Field Manual, The Law of Land 
Warfare, FM 27-10 (1956), par. 36. 

40. ICRC, Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflict: Report to the 
XXIst International Conference of the Red Cross (Geneva: 1969), pp. 61-62. 

41. U.N. Report, supra note 11, par. 19. 

42. United Nations, Department of Political and Security Council Affairs, Napalm and Other Incendiary 
Weapons and All Aspects of their Possible Use: Report of the Secretary -General, A/8303/Rev.l (New York: 1973), 
par. 193. See also United Nations Secretariat, Respect for Human Rights in Armed Conflicts: Existing Rules of 
International Law Concerning the Prohibition or Restriction of Use of Specific Weapons, A/9215 (New York: 1973), 
v. 1, pars. 20-21 and 59-86. 

43. Stockholm International Peace Research Institute, Incendiary Weapons (Cambridge, Mass.: 
Massachusetts Institute of Technology Press, 1975), p. 24. 

44. ICRC, Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects: Report on the Work 
of Experts (Geneva: 1973), pars. 182-223; Conference of Government Experts on the Use of Certain Conventional 
Weapons: Lucerne, 1974 (Geneva: 1975), pars. 43-117; Conference of Government Experts on the Use of Certain 
Conventional Weapons: Lugano, 1976 (Geneva: 1976), pars. 9-12 and 104-112. 

45. Official Records, supra note 8, v. 16, passim. 

46. Id., v. 1, part 11, p. 52. 

47. United Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which 
May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects: Final Report of the Conference to the 
General Assembly, A/CONF.95/15 (1980), Annex I, Appendix D, Protocol on Prohibitions or Restrictions 
on the Use of Incendiary Weapons (Protocol III), Schindler & Toman, supra note 5, p. 190. The United States 
has, as yet, taken no steps towards the ratification of the Convention to which this Protocol is attached. 

48. The Law of Naval Warfare (NWIP 10-2), supra note 39, par. 612b (emphasis added). The footnote to 
that statement is even more definite, stating, "[I]t is difficult to hold that the use of these [chemical] weapons 
is prohibited to all states according to customary international law." 

49. "Almost" because of such occasional statements like that contained in the 1945 Memorandum of the 
Judge Advocate General of the Army, supra note 35, to the effect that, "An exhaustive study of the source 
materials, however, warrants the conclusion that a customary rule of international law has developed by which 
poisonous gases and those causing unnecessary suffering are prohibited. " 

50. "Controversial" because, as we have seen, there is no general agreement as to whether lachrymatories 
and herbicides are included within the prohibitions of the 1925 Geneva Protocol. 

51. Stewart Blumenfeld and Matthew Meselson, "The Military Value and Political Implications of the 
Use of Riot Control Agents in Warfare," in Carnegie Endowment for International Peace, The Control of 
Chemical and Biological Weapons (New York: 1971), pp. 64, 67-68. 



266 Levie on the Law of War 

52. Howard S. Levie, "Weapons of Warfare," in Trooboff, supra note 36, p. 154. During the conflict in 
Vietnam the North Vietnamese took the position that all chemical warfare, including both tear gas and 
herbicides, was prohibited by international law. Nguyen Khac Vien, ed., Chemical Warfare, Vietnamese Studies 
No. 29 (Hanoi: 1971), passim. They appear to have departed from this position in recent years, at least insofar 
as it applies to their own use of both chemical weapons and toxins. U.S. Department of State, Chemical Warfare 
in Southeast Asia and Afghanistan: Report to the Congress from Secretary of State Alexander M Haig, Jr., Special 
Report No. 98, March 22, 1982; U.S. Department of State, Chemical Warfare in Southeast Asia and Afghanistan: 
An Update: Report from Secretary of State George P. Shultz, Special Report No. 104, November 1982. 

53. "Statement by President Nixon," Department of State Bulletin, Dec. 15, 1969, v. 61, p. 541. A correction 
to this statement containing omitted paragraph appears at Department of State Bulletin, March 2, 1970, v. 62, 
p. 272, reprinted in A.J.I.L., v. 64, p. 386 (1970). 

54. For a brief summary of the legislative history of this action, see "Introduction," in Trooboff, supra note 
36, pp. 242-43, note 37. The U.S. ratification included the typical "first use" reservation. 

55. Gerald R. Ford, Executive Order 11,850, "Renunciation of Certain Uses in War of Chemical 
Herbicides and Riot Control Agents," Federal Register, April 8, 1975, p. 16,187, reprinted in I.L.M., v. 14, p. 
794 (1975). 

56. See supra note 48 and accompanying text. 

57. Handbook, supra note 1, par. 10.3.2.1. 

58. It will be recalled that U.N. Resolution 2603 A, supra note 31, was adopted with three votes against 
(including the United States) and 36 abstentions. 

59. See infra note 80. 

60. See infra text accompanying notes 75 and 76. 

61. "Bush, in Geneva, Offers Chemical Arms Ban," New York Times, Apr. 19, 1984, p. A13:l; "U.S. 
Proposes Banning Chemical Weapons," Department of State Bulletin, June 1984, v. 84, p. 40. 

62. Draft of April 27, 1987, 1987 Arms Control Reporter 704.D.105. 

63. 1989 Arms Control Reporter, 704.B.338.2. 

64. Robert Pear, "U.S. and Moscow Settle Key Issues on Chemical Arms: Agree on Ban in 10 Years, 
but Constitutional Questions Are Raised by Accord on Surprise Inspections," New York Times, July 18, 1989, 
p. Al:6. This sudden agreement may well have been prompted by the public reaction to the construction by 
a West German chemical concern at Rabta, Libya, of a plant capable of manufacturing large quantities of 
mustard gas. 1989 Arms Control Reporter, 705.B.339-354.2. 

65. "Oudine of the Rolling Text and Principal Remaining Issues — 1 May 1989," 1989 Arms Control 
Reporter, 704.D. 131-137. 

66. "Changes of the Rolling Text and Principal Remaining Issues — 15 October 1989," id., 704 3 139 
144. 

67. Pear, "U.S. and Moscow Settle Key Issues on Chemical Arms," supra note 64. For a discussion of the 
constitutional problem, see, Dennis S. Aronowitz, Legal Aspects of Arms Control Verification in the United States 
(Dobbs Ferry: Oceana Publications, 1965), pp. 104-14. 

68. United Nations Convention on the Law of the Sea (New York: United Nations, 1983), Sales No. 
E.83.V.5. The negotiation of this Convention took from 1973 to 1982; Protocols Additional to the Geneva 
Conventions of 12 August 1949 and Relating to the Protection of Victims of Armed Conflicts, I L S., v. 16, 
p. 1391 (1977), Schindler & Toman, supra note 5, pp. 621 and 689. The negotiation of these Protocols took 
from 1974 to 1977, preceded by several years of preliminary negotiations. 

69. In September 1989 an International Government-Industry Conference Against Chemical Weapons 
consisting of representatives of more than 65 Governments and of the world's major chemical manufacturers, 
meeting in Canberra, Australia, endorsed a chemical warfare convention and sought ways to assist in bringing 
the Geneva negotiations to a successful conclusion. Department of State, GIST, November 1989. On 
September 23, 1989, at Jackson Hole, Wyoming, the Soviet Union and the United States signed an Agreement 
Regarding a Bilateral Verification Experiment and Data Exchange Related to Prohibition of Chemical Weapons, reprinted 
inl.L.S., v. 28, p. 1438. 

70. For the sake of brevity, the broader term "biological" is hereinafter used alone. It is intended to include 
toxins. 

71. U.N. Report, supra note 11, par. 17. 

72. See supra text accompanying note 19. 

73. Materials on the Trial of Former Servicemen of the Japanese Army Charged with Manufacturing and Employing 
Bacteriological Weapons (Moscow: Foreign Languages Publishing House, 1950). 

74. Henry Scott Stokes, "Japan Looks at Grisly Side of its Past," New York Times, July 13, 1982, p. A3:l. 
See also John W. Powell, "Japan's Biological Weapons, 1930-1945," Bulletin of Atomic Scientists, Oct. 1981, 
v. 37, pp. 44-52; "Japan's Biological Weapons, 1930-1945: An Update," Bulletin of Atomic Scientists, Oct. 1982, 



NBC Weapons 267 

v. 38, p. 62. The Germans may well have engaged in similar experimentation or employment during World 
War II, but, if so, the usage was not for military purposes, their victims being German or Jewish civilians. 

75. United States Arms Control and Disarmament Agency, Documents on Disarmament (Washington: U.S. 
Govt. Print. Off, 1962), p. 104 [hereinafter cited as Documents on Disarmament]. 

76. Id., p. 279. 

77. One might question the seriousness of the two proposals as far as they related to nuclear weapons. 

78. Documents on Disarmament, supra note 75, pp. 324-25 (1969). 

79. Documents on Disarmament, supra note 75, pp. 456-57 (1971). 

80. U.S.T., v. 26, p. 583, T.I.A.S. No. 8062, reprinted in I.L.M., v. 11, p. 310 (1972). This Convention 
was opened for signature in Washington, London and Moscow on April 10, 1972. As of January 1, 1989, 110 
states had either ratified or acceded to it, including all of the major powers. U.S. Department of State, Treaties 
in Force -January 1, 1989 (Washington: U.S. Govt. Print. Off., 1989), pp. 28-85. 

81. Bernard Gwertzman, "Soviet Mishap Tied to Germ- War Plant," New York Times, March 19, 1980, 
p. Al:6; Bernard Gwertzman, "Soviet Lays Outbreak of Illness to Bad Meat not Germ- War Plant," id., March 
21, 1980, p. Al:l; "Soviet Now Mentioning Foot and Mouth Disease," id., March 27, 1980, p. All.l. 

82. See Department of State Special Reports, supra note 52. 

83. The Law of Naval Warfare, supra note 39, par. 612B. The Army's The Law of Land Warfare, supra note 
39, par. 38, is to the same effect. 

84. Statement of President Nixon, "Chemical and Biological Defense Policies and Programs," November 
25,1969, Weekly Compilation of Presidential Documents, December 1,1969, Department of State Bulletin, December 
15, 1969, v. 61, p. 541. (A correction to this statement containing omitted paragraphs appears at id., March 
2, 1970, v. 62, p. 272.) 

85. White House Press Release, "U.S. Renounces Use of Toxins as a Method of Warfare," February 14, 
1970, Department of State Bulletin, March 2, 1970, v. 62, p. 226. 

86. Handbook, supra note 1, par. 10.4.2. 

87. U.N. Report, supra note 11, pars. 39-41. Chemical weapons used in the same way would have to be 
disseminated in much greater quantities and, even so, would cover a considerably smaller area. However, the 
result would still be devastating and would establish beyond doubt that they are, indeed, weapons of mass 
destruction. 



Nuclear, Chemical, and Biological Weapons 
Addendum 

In 1971 there was drafted a Treaty on the Prohibition of the Emplacement of Nuclear 
Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor 
and the Subsoil Thereof. The United States is a Party to this Treaty. 

In 1972 the United Nations Committee on Disarmament drafted a Convention 
on the Prohibition of the Development, Production and Stockpiling of Bacteriological 
(Biological) and Toxin Weapons and on their Destruction which was approved by the 
General Assembly of the United Nations. The United States has ratified this 
Convention, as have the great majority of other States. All types of 
bacteriological and biological weapons are now completely banned and each 
State is given nine months from the date of the entry into force of the 
Convention within which to destroy all such weapons in its stockpile. 
(Presumably this means nine months after the Convention enters into force for 
a particular country.) The Convention itself entered into force on 26 March 
1975. As is not unusual, Iraq is believed to continue to possess such weapons 



268 Levie on the Law of War 

and has placed constant difficulties in the way of the United Nations inspectors 
who have attempted to ascertain whether it is complying with the terms of the 
1991 Security Council Resolution (S.C. Res. 687) requiring their destruction, 
as well as that of chemical weapons. 

In 1993 the General Assembly of the United Nations approved a Convention 
on the Prohibition of the Development, Production, Stockpiling and Use of Chemical 
Weapons and on Their Destruction. This Convention supplements the 1925 Geneva 
Gas Protocol which merely prohibited "use." Once again, Iraq is believed to 
continue to possess such weapons and has placed constant difficulties in the way 
of the United Nations inspectors who have attempted to ascertain whether it is 
complying with the terms of Security Council Resolution 687. (The United 
States Senate gave its advice and consent to the ratification of this treaty on 24 
April 1997, despite the vehement opposition of Senator Jesse Helms, Chairman 
of the Senate Foreign Relations Committee, and President Clinton ratified it 
on 25 April 1997. Unfortunately, the ratification includes a number of 
"understandings," many of which will not coincide with the interpretations of 
other Parties to the Convention.) 

On 15 December 1994 the General Assembly of the United Nations adopted 
a resolution in which it requested the International Court of Justice to provide 
an advisory opinion on the question: "Is the threat or use of nuclear weapons 
in any circumstances permitted under international law?" The Court decided 
unanimously that "There is in neither customary nor conventional international 
law any specific authorization of the threat or use of nuclear weapons" and by 
a vote of eleven to three that "There is in neither customary nor conventional 
international law any comprehensive and universal prohibition of the threat or 
use of nuclear weapons as such." However, a further holding of the Court, on 
which the vote was seven to seven, decided by the President's casting vote, 
states: 

It follows from the above mentioned requirements 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, in view of the current state of international law, and of the elements 
of fact at its disposal, the Court cannot 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. 






XV 

The Rise and Fall of an Internationally 

Codified Denial of the 

Defense of Superior Orders 

30 Revue De Droit Militaire Et De Droit De La Guerre 183 (1991) 

Introduction 

As long as there have been trials for violations of the laws and customs of 
war, more popularly known as "war crimes trials", the trial tribunals have 
been confronted with the defense of "superior orders" — the claim that the 
accused did what he did because he was ordered to do so by a superior officer 
(or by his Government) and that his refusal to obey the order would have brought 
dire consequences upon him. And as along as there have been trials for violations 
of the laws and customs of war the trial tribunals have almost uniformly rejected 
that defense. However, since the termination of the major programs of war 
crimes trials conducted after World War II there has been an ongoing dispute 
as to whether a plea of superior orders should be allowed, or disallowed, and, if 
allowed, the criteria to be used as the basis for its application. Does international 
action in this area constitute an invasion of the national jurisdiction? Should the 
doctrine apply to all war crimes or only to certain specifically named crimes? 
Should the illegality of the order received be such that any "reasonable" person 
would recognize its invalidity; or should it be such as to be recognized by a 
person of "ordinary sense and understanding"; or by a person of the "commonest 

understanding"? Should it be "illegal on its face"; or "manifestly illegal"; or 

l 
"palpably illegal"; or of "obvious criminality"? An inability to reach a generally 

acceptable consensus on these problems has resulted in the repeated rejection of 

attempts to legislate internationally in this area. Consequendy, the continued 

existence of an international rule denying superior orders as a defense to a charge 

of violating the laws and customs of war appears to be in jeopardy — if it has not 

already ceased to exist. 

More than five centuries ago, when one Peter von Hagenbach was tried by 

an "international" tribunal for maltreating, and permitting his subordinates to 

maltreat, the inhabitants of the town of Breisach while he was in command of 

what might be termed a military occupation (although the war did not begin 



270 Levie on the Law of War 

until thereafter), his defense was that his actions were in compliance with the 
orders of his master, the Duke of Burgundy. Even though complete obedience 
to the commands of one's liege lord was a way of life in the fifteenth century, 
and even though human life, particularly of civilians, was not respected then as 
it is today, von Hagenbach was found guilty and he was sentenced to death. 

Similarly, in 1865, at the conclusion of the American Civil War, when 
Captain Henry Wirz, the erstwhile Confederate commander of the notorious 
prisoner-of-war camp at Andersonville, Georgia, was tried before a federal 
Military Commission for the maltreatment of the prisoners of war in his custody, 
one of his defenses was "superior orders." In his personal summation Wirz said: 

I think I may also claim as a self-evident proposition that if I, a subaltern officer, 
merely obeyed the legal orders of my superiors in the discharge of my official 
duties, I cannot be held responsible for the motives that dictated such orders. 

Against this claim the prosecutor asserted: 

I know that it is urged that during all this time he was acting under General 
Winder's orders, and for the purpose of argument I will concede that he was so 
acting. A superior officer cannot order a subordinate to do an illegal act, and if a 
subordinate obey such an order and disastrous consequences result, the superior 
and the subordinate must answer for it. General Winder could no more command 
the prisoner to violate the laws of war than could the prisoner do so without 
orders. The conclusion is plain, that where such orders exist both are guilty. . . . 

And notwithstanding his earnest appeal, made to you in his final statement, 
begging that he, a poor subaltern, acting only in obedience to his superior, should 
not bear the odium and punishment deserved, with whatever force these cries of 
a desperate man, in a desperate and terrible strait, may come to you, there is no 
law, no sympathy, no code of morals, that can warrant you in refusing to let him 
have all justice, because the lesser and not the greater criminal is on trial. 

Wirz was found guilty and he was sentenced to death. 

It is interesting to note that in the first (1906) edition of his now famous and 

7 
standard work on international law, Oppenheim said: 

If members of the armed forces commit violations by order of their Government, 
they are not war criminals and cannot be punished by the enemy; the latter can, 
however, resort to reprisals. In case members of forces commit violations ordered 
by their commanders, the members may not be punished, for the commanders 
are alone responsible, and the latter may, therefore, be punished as war criminals 
on their capture by the enemy. 



Superior Orders 271 

That statement, or one closely resembling it, appeared in the subsequent 
editions of Oppenheim's treatise, with its various editors, including the first 
edition (the 5th) edited by Lauterpacht. In the next (6th) edition Lauterpacht 
reversed himself and in the 7th edition, the last that he edited (and the last 

edition of the second volume that has appeared to date), the following rule is 

10 
set forth: 

253. The fact that a rule of warfare has been violated in pursuance of an order 
of the belligerent Government or of an individual belligerent commander does 
not deprive the act in question of its character as a war crime; neither does it, in 
principle, confer upon the perpetrator immunity from punishment by the injured 
belligerent. A different view has occasionally been adopted in military manuals, 
and by writers, but it is difficult to regard it as expressing a sound legal principle. 
Undoubtedly, a Court confronted with the plea of superior orders adduced in 
justification of a war crime is bound to take into consideration the fact that 
obedience to military orders, not obviously unlawful, is the duty of every member 
of the armed forces and that the latter cannot, in conditions of war discipline, be 
expected to weigh scrupulously, the legal merits of the order received; that rules 
of warfare are often controversial; and that an act otherwise amounting to a war 
crime may have been executed in obedience to orders conceived as a measure of 
reprisals. Such circumstances are probably in themselves sufficient to divest the 
act of the stigma of a war crime. . . . However, subject to these qualifications, the 
question is governed by the major principle that members of the armed forces are 
bound to obey lawful orders only and that they cannot therefore escape liability 
if, in obedience to a command, they commit acts which both violate unchallenged 
rules of warfare and outrage the general sentiment of humanity. 

The Preliminary Peace Conference which met at Versailles in 1919 to draft 

a treaty of peace with Germany at the end of World War II established a 

Commission on the Responsibility of the Authors of the War and on Enforcement of 

Penalties with the task of inquiring into and reporting upon, among other things, 

the degree of responsibility for breaches of the laws and customs of war. In its 

report the Commission listed thirty-two types of violations of the laws and 

customs of war and, concerning the defense of superior orders, its report 

1 1 
unanimously stated: 

We desired to say that civil and military authorities cannot be relieved from 
responsibility by the mere fact that a higher authority might have been convicted 
of the same offence. It will be for the court to decide whether a plea of superior 
orders is sufficient to acquit the person charged from responsibility. 

Article 228 of the Treaty of Versailles which actually ended World War I for 
many of the belligerents required the German Government to hand over to the 



272 Levie on the Law of War 

Allied Governments for trial "all persons accused of having committed an act in 

12 
violation of the laws and customs of war." In the face of the public opinion 

prevailing in Germany at that time no Government could have survived 

compliance with such a requirement and so it was subsequendy agreed that the 

individuals named would, instead, be tried by the Supreme Court of Leipzig. 

The trials were a fiasco; but in one of them, involving the trial of two officers 

who had obeyed the order of their commanding officer to fire upon the lifeboats 

of a hospital ship which their submarine had torpedoed, the German Court said: 

It is true that according to the [German] Military Penal Code, if the execution 
of an order in the ordinary course of duty involves such a violation of the law as 
is punishable, the superior officer issuing such an order is alone responsible. 
However, the subordinate obeying an order is liable to punishment, if it was 
known to him that the order of the superior involved the infringement of civil or 
military law. This applies in the case of the accused. It is certainly to be urged in 
favour of the military subordinates that they are under no obligation to question 
the order of their superior officer, and they can count upon its legality. But no 
such confidence can be held to exist, if such an order is universally known to 
everybody, including the accused, to be without any doubt whatever against the 
law. 

The accused were found guilty by the Court and were sentenced to 
imprisonment for a term of years. 

While the 1922 Treaty of Washington never came into force because of the 
failure of ratification by France, it is of interest to note that Article 3 thereof stated: 

The Signatory Powers, desiring to ensure the enforcement of the humane rules 
of existing law declared by them with respect to attacks upon and the seizure and 
destruction of merchant ships, further declare that any person in the service of any 
Power who shall violate any of those rules, whether or not such person is under 
orders of a governmental superior, shall be deemed to have violated the laws of 
war and shall be liable to trial and punishment as if for an act of piracy and may 
be brought to trial before the civil or military authorities of any Power within the 
jurisdiction of which he may be found. 

Although the inter-war period (1919-1939) was far from free of international 
hostilities, the subject of war crimes trials appears to have been raised, or even 
written about by the students of the subject, on comparatively few occasions. 

World War II and its Aftermath 

All during the course of World War II there had been statements made by 
the Allies that there would be trials for those major war criminals who had 



Superior Orders 273 

plunged the world into catastrophic war and for those individuals who had 
otherwise violated international law. A private conference of British and 
European jurists from occupied countries which met in Cambridge in 
November 1941 established a committee to draft rules and procedures to govern 
war crimes trials. The sub-committee on superior orders concluded that 

generally speaking, the codes of law of the respective countries recognize the plea 
of superior orders to be valid if the order is given by a superior to an inferior 
officer, within the course of his duty and within his normal competence, provided 
the order is not blatandy illegal. The conclusion reached was that each case must 
be considered on its own merits, but that the plea is not an automatic defence. 

The London International Assembly, established by the League of Nations 

Union of Great Britain, adopted a resolution which included the following with 

20 
respect to the defense of superior orders: 

(a) That an order given by a superior to an inferior to commit a crime violating 
international law was not in itself a defence, but that the Courts were entided to 
consider whether the accused was placed in a 'state of compulsion' to act as 
ordered, and acquit him or mitigate the punishment accordingly; 

(b) That such exculpating or extenuating circumstances should in all cases be 
disregarded in two types of cases: when the act was so obviously heinous that it 
could not be committed without revolting the conscience of an average human 
being; and when the accused was, at the time of the offence, a member of an 
organization whose membership implied the execution of criminal orders. 

The United Nations Commission for the Investigation of War Crimes (later the 
United Nations War Crimes Commission) was established in London on 20 
October 1943 by 17 of the States at war with Germany and Japan. (The Soviet 

Union was not represented at this meeting, nor did it later participate in the 

21 
activities of the Commission.) Its Legal Committee concluded that a general 

understanding between the victorious belligerent nations on the subject of 

superior orders was desirable and stated that it believed the following rule to be 

22 
consistent with international law: 

The defence of obedience to superior orders shall not constitute a justification 
for the commission of an offence against the laws and customs of war, if the order 
was so manifesdy contrary to those laws or customs that, taking into account his 
rank or position and the circumstances surrounding the commission of the offence, 
an individual of ordinary understanding would have known that such an order 
was illegal. 



274 Levle on the Law of War 

This recommendation did not meet with unanimous support and the 

Commission's Enforcement Committee eventually recommended that the 

23 
Commission submit the following statement to the Governments: 

The Commission has considered the question of 'superior orders'. It finally 
decided to leave out any provision on the subject. . . . The Commission considers 
that it is better to leave it to the court itself in each case to decide what weight 
should be attached to a plea of superior orders. But the Commission wants to 
make it clear that its members unanimously agree that in principle this plea does 
not of itself exonerate the offenders. 

Finally, in March 1945, the Commission itself adopted the following 
position: 

Having regard to the fact that many, if not most, of the members States have 
legal rules on the subject, some of which have been adopted very recendy, and 
that in most cases these rules differ from one another, and to the further 
consideration that the question how far obedience to the orders of a superior 
exonerates an offender or mitigates the punishment must depend on the 
circumstances of the particular case, the Commission does not consider that it can 
usefully propound any principle or rule. 

The Commission unanimously maintains the view . . . that the mere fact of 
having acted in obedience to the orders of a superior does not of itself relieve a 
person who has committed a war crime from responsibility. 

Early in 1945 the United States prepared a draft of a proposal for an 
international military tribunal to try the major German war criminals. Paragraph 
11 of that proposal stated: 

The fact that a defendant acted pursuant to order of a superior or government 
sanction shall not constitute an absolute defense but may be considered either in 
defense or in mitigation of punishment if the tribunal before which the charges 
are being tried determines that justice so requires. 

That proposal was submitted to the representatives of the Provisional French 
Government, the Soviet Union, and the United Kingdom at San Francisco in 
April 1945, together with a later draft in which a paragraph concerning trial 
procedures contained a sub-paragraph stating that any agreement on the matter 
should include a provision which could, 

(c) except as the court in its discretion shall deem appropriate in particular cases, 
exclude any defense based upon the fact that the accused acted under orders of a 
superior officer or pursuant to state or national policy. 



Superior Orders 275 

Then, on 14 June 1945, the United States distributed a revision of its draft 
proposal, a document which later became the working paper for the London 

Conference which met to draft the definitive Charter of the International 

27 
Military Tribunal. Paragraph 1 5 of that revision stated: 

In any trial before an International Military Tribunal the fact that a defendant 
acted pursuant to order of a superior or government sanction shall not constitute 
a defense per se, but may be considered either in defense or in mitigation of 
punishment if the tribunal determines that justice so requires. 

In a further Revised Draft submitted by the United States on 30 June 1945, 

28 
during the course of the London Conference, the relevant paragraph now read: 

17. The fact that a defendant acted pursuant to order of a superior or to 
government sanction shall not constitute a defense per se, but may be considered 
in mitigation of punishment if the Tribunal determines that justice so requires. 

29 
A Soviet proposal which was tabled at the Conference on 2 July 1 945 stated: 

ARTICLE 29 

Carrying Out of an Order 

The carrying out by the defendant of an order of his superior or government 
shall not be considered a reason excluding his responsibility for the crimes set out 
in Article 2 of this Statute. In certain cases, when the subordinate acted blindly in 
carrying out the orders of this superior, the Tribunal has right to mitigate the 
punishment of the defendant. 

A drafting subcommittee was then created by the Conference. The provision 

which it drafted on the question of superior orders varied litde from that set 

30 
forth in the last revision proposed by the United States: 

8. The fact that the defendant acted pursuant to order of a superior or the 
Government sanction shall not free him from responsibility but may be considered 
in mitigation of punishment if the Tribunal determines that justice so requires. 

In what was apparendy the only real discussion of superior orders which took 
place at the London Conference, the following occurred: 

General Nikitchenko: In article 7 [8?] of the Charter I do not propose any 
change but would like to point out two considerations. Would it be proper really 
in speaking of major criminals to speak of them as carrying out some order of a 



276 Levie on the Law of War 

superior? This is not a question of principle really, but I wonder if that is necessary 
when speaking of major criminals. 

Sir David Maxwell Fyfe: There are two points: first, they have already said they 
were just doing what Hider said they should do; and secondly, in international 
law, certainly in some cases, superior orders were a defense, but in the sixth and 
seventh editions of Oppenheim it appears that they aren't a defense. If we don't 
make it clear, we may have some trouble on it. 

General Nikitchenko: There is a misunderstanding. I wasn't against disallowing 
orders of a superior as a defense, but I thought that in regard to major criminals 
it would be improper to say that superior orders could be used in mitigation of 
punishment. 

Sir David Maxwell Fyfe: It seems to me difficult. Suppose someone said, he 
was threatened to be shot if he did not carry out Hider's orders. If he wasn't too 
important, the Tribunal might let him off with his life. It seems to be a matter for 
the Tribunal. 

In one of the German cases on trial which were such a farce after the last war 
they did say that superior orders were no defense but could be taken into account 
on mitigation. That has been the general rule on superior orders in international 
law books. 

General Nikitchenko: If the other heads of the delegations consider it best, we 
have no intention of pressing it. In general, it should be considered in mitigation; 
we think it is proper. 

* * * * 

Judge Falco: Is it necessary to indicate to the Tribunal the reason for mitigation? 
If we say simply that orders are not a defense, it would seem to be left to the 
tribunal to say that they may be in mitigation. 

Mr Justice Jackson: That is about what we proposed originally — not an absolute 
defense but a mitigation. 

Sir David Maxwell Fyfe: The important part is that it should not be an absolute 
defense. 

Judge Falco: That is the important part. Must we add that that is the reason for 
the Tribunal to consider mitigation? 



Superior Orders 277 

With some minor editing the Article 8 set forth above became Article 8 of 
the Charter of the International Military Tribunal which later sat in Nuremberg. 
As finally adopted it stated: 

Article 8. The fact that the Defendant acted pursuant to order of his 
Government or of a superior shall not free him from responsibility, but may be 
considered in mitigation of punishment if the Tribunal determines that justice so 
requires. 

In applying that rule at the Nuremberg Trial the International Military 
Tribunal said: 

The provisions of this Article are in conformity with the law of all nations. 
That a soldier was ordered to kill or torture in violation of the international law 
of war has never been recognized as a defense to such acts of brutality, though, as 
the Charter here provides, the order may be urged in mitigation of the punishment. 
The true test, which is found in varying degrees in the criminal law of most nations, 
is not the existence of the order, but whether moral choice was in fact possible. 

Another statement in that judgment was to effect that 

When they [certain of the defendants] with knowledge of his [Hider's] aims, 
gave him their cooperation, they made themselves parties to the plan he had 
initiated. They are not to be deemed innocent because Hitler made use of them, 
if they knew what they were doing. That they were assigned to their tasks by a 
dictator does not absolve them from responsibility for their acts. The relation of 

leader and follower does not preclude responsibility here any more than it does 

35 
in the comparable tyranny of organized domestic crime. 

In considering whether the General Staff and the High Command of the 
Germany armed forces should be found to be criminal organizations, the 
Tribunal said: 

Many of these men have made a mockery of the soldier's oath of obedience 
to military orders. When it suits their defense they say they had to obey; when 
confronted with Hider's brutal crimes, which are shown to have been within their 
general knowledge, they say they disobeyed. 

On 20 December 1945 the Allied Control Council for Germany, consisting 
of military representatives of the Occupying Powers, the same four nations 
which had drafted the London Charter of the International Military Tribunal, 
promulgated Allied Control Council Law No. 10, setting forth the basis for the 
trials in Germany of war criminals other than those to be tried by the 



278 Levie on the Law of War 

37 
International Military Tribunal. ' The provisions of Article 11(4) (b) of that Law 

with respect to superior orders were substantially the same as those of the London 

Charter: 

The fact that any person acted pursuant to the order of his Government or of 
a superior does not free him from responsibility for a crime, but may be considered 
in mitigation. 

38 
In The Hostage Case the Tribunal, convened pursuant to Law No. 10, held: 

Implicit obedience to orders of superior officers is almost indispensable to every 
military system. But this implies obedience to lawful orders only. If the act done 
pursuant to a superior's orders be murder, the production of the order will not 
make it any less so. It may mitigate but it cannot justify the order. We are of the 
view, however, that if the illegality of the order was not known to the inferior, 
and he could not reasonably have been expected to know of its illegality, no 
wrongful intent necessary to the commission of a crime exists and the inferior will 
be protected. But the general rule is that members of the armed forces are bound 
to obey only the lawful orders of their commanding officers and they cannot escape 
criminal liability by obeying a command which violates international law and 
outrages fundamental concepts of justice. 

In effect, here the Tribunal was saying that if the subordinate did not know 
and could not be expected to know that the order was illegal, there was no 
criminal intent, no mens rea, and the subordinate would not be guilty. The 
opinion in The Einsatsgruppen Case is to the same effect, the Tribunal there having 
said: 

Those of the defendants who admit participation in the mass killings which are 
the subject of this trial, plead that they were under military orders and, therefore, 
had no will of their own. As intent is a basic prerequisite to responsibility for 
crime, they argue that they are innocent of criminality since they performed the 
admitted executions under duress, that is to say, superior orders. The defendants 
formed part of a military organization and were, therefore, subject to the rules 
which govern soldiers. It is axiomatic that a military man's first duty is to obey. If 
the defendants were soldiers and as soldiers responded to the command of their 
superiors to kill certain people, how can they be held guilty of crime? That is the 
question posed by the defendants. The answer is not a difficult one. 

The obedience of a soldier is not the obedience of an automaton. A soldier is 
a reasoning agent. He does not respond, and is not expected to respond, like a 
piece of machinery. It is a fallacy of wide-spread consumption that a soldier is 
required to do everything his superior officer orders him to do.... The fact that a 
soldier may not, without incurring unfavorable consequences, refuse to drill, 
salute, exercise, reconnoiter, and even go into batde, does not mean that he must 



Superior Orders 279 

fulfill every demand put to him. In the first place, an order to require obedience 
must relate to military duty. An officer may not demand of a soldier, for instance, 
that he steal for him. And what the superior officer may not militarily demand of 
his subordinate, the subordinate is not required to do. Even if the order refers to 
a military subject it must be one which the superior is authorized, under the 
circumstances, to give. 

The subordinate is bound only to obey the lawful orders of his superior and if 
he accepts a criminal order and executes it with a malice of his own, he may not 
plead superior orders in mitigation of his offense. If the nature of the ordered act 
is manifesdy beyond the scope of the superior's authority, the subordinate may 
not plead ignorance to the criminality of the order. If one claims duress in the 
execution of an illegal order it must be shown that the harm caused by obeying 
the illegal order is not disproportionally greater than the harm which would result 
from not obeying the illegal order. 

In High Command Case, the Tribunal before which that case was tried quoted 
a 1944 statement of Goebbels, the Nazi Propaganda Minister, in which he had 
said: 

It is not provided in any military law that a soldier in the case of a despicable 
crime is exempt from punishment because he passes the responsibility to his 
superior, especially if orders of the latter are in evident contradiction to all human 
morality and every international usage of warfare. 

As would be expected, that statement was made in his official capacity as 
Minister of Propaganda and referred to alleged acts of Allied troops. It was not 
intended as a statement of German military law, nor as an admonition to the 
German soldier. 

Concerning the act of an intermediate headquarters in passing down to its 

subordinate commands an order received from higher headquarters, the Tribunal 

42 
in High Command Case went on to say: 

Military commanders in the field with far reaching military responsibilities 
cannot be charged under international law with criminal participation in issuing 
orders which are not obviously criminal or which they are not shown to have 
known to be criminal under international law. Such a commander cannot be 
expected to draw fine distinctions and conclusions as to legality in connection 
with orders issued by his superiors. He has the right to presume, in the absence 
of specific knowledge to the contrary, that the legality of such orders has been 
properly determined before their issuance. He cannot be held criminally 
responsible for a mere error in judgment as to disputable legal questions. 

It is therefore considered that to find a field commander criminally responsible 
for the transmittal of such an order, he must have passed the order to the chain of 



280 Levie on the Law of War 

command and the order must be one that is criminal on its face, or one which he 
is shown to have known was criminal. 

In a digest of the laws applied by various courts which conducted war crimes 
trials after World War II the United Nations War Crimes Commission said: 

The plea of superior orders has been raised by the Defence in war crimes trials 
more frequendy than any other. The most common form of the plea consists in 
the argument that the accused was ordered to commit the offence by a military 
superior and that under military discipline orders must be obeyed. A closely related 
argument is that which claims that had the accused not obeyed he would have 
been shot or otherwise punished; it is sometimes also maintained in court that 
reprisals would have been taken against his family. 

It has often been said that an accused is entided under international law to obey 
commands which are lawful or which he could not reasonably be expected to 
know were unlawful. The question, however, arises whether these commands 
must be lawful under municipal law or international law; ... the legality under 
municipal law of the accused's acts does not free him from liability to punishment 
if those acts constitute war crimes, and it seems to follow that the plea of having 
acted upon orders which were legal under municipal law must also fail to constitute 
a defence. On the other hand, if the order is legal under international law, it is 
difficult to show how an act committed in obedience to it could be illegal under 
that system.... The true test in practice is whether an order, illegal under 
international law, on which an accused has acted was or must be presumed to 
have been known to him to be so illegal, or was obviously so illegal ("illegal on 
its face" to use the term employed by the Tribunal in the High Command Trial) 
or should have been recognised by him as being so illegal. 

The provisions contained in Article 8 of the London Charter denying superior 
orders as a defense and limiting its application to mitigation of punishment were 
followed by many of the laws enacted and orders issued after the conclusion of 
World War II which were concerned with the trials of violators of the laws and 
customs of war. Thus, the Charter attached to the Special Proclamation creating 
the International Military Tribunal for the Far East (1MTFE), issued on 19 January 

1946 by General Douglas MacArthur as Supreme Commander for the Allied 

44 
Powers (SCAP), included the following provisions: 

Article 6. Responsibility of Accused. Neither the official position, at any time, 
of an accused, nor the fact that an accused acted pursuant to order of his 
government or of a superior shall, of itself, be sufficient to free such an accused 
from responsibility for any crime with which he is charged, but such circumstances 
may be considered in mitigation of punishment if the Tribunal determines that 
justice so requires. 



Superior Orders 281 

None of the judges of the IMTFE, concurring or dissenting, found it necessary 

to advert to the quoted provision of its Charter either in the lengthy judgment 

45 
or in the other opinions. 

As we have already seen, Article 8 of the London Charter was also the source 

for the cognate provision of Allied Control Council Law No. 10 and for similar 

provisions issued in other occupied territories. 

United Nations 

On 11 December 1946 the General Assembly of the United Nations 

unanimously adopted a resolution the first operative paragraph of which stated 

47 
that the General Assembly: 

Affirms the principles of international law recognized by the Charter of the 
Nuremberg Tribunal and the judgment of the Tribunal. 

Another operative paragraph charged its Committee on Codification (later 
changed to the International Law Commission) with the formulation of those 
principles, either in the context of a code of offenses against the peace and 
security of mankind or of an international criminal code. When the International 
Law Commission had prepared its first draft in complying with the task assigned 
to it of "formulating" the principles of international law recognized in the 
London Charter and in the Judgment of the Nuremberg Tribunal, its Principle 
IV read as follows: 

The fact that a person acted pursuant to order of his Government or of a superior 
does not relieve him from responsibility under international law, provided a moral 
choice was in fact possible to him. 

The overall document received a mixed reception in the Sixth Committee 
of the General Assembly, the result of which was the preparation of a draft 

49 r 

resolution, later adopted by the General Assembly, referring it to member 
States for comment, a process which had early evolved in the United Nations 
as a method of indefinite postponement. 

The following year, in accordance with the directive received from the 
General Assembly, the International Law Commission began to work on a Draft 
Code of Offences Against the Peace and Security of Mankind. Article 4 of the first 
draft text prepared by the Special Rapporteur, J. Spiropoulos, stated: 

The fact that a person charged with a crime defined in this code acted under 
the orders of a government or a superior may be taken into consideration either 
as a defence or in mitigation of punishment if justice so requires. 



282 Levie on the Law of War 

This proved unacceptable to the Commission which modified the 

51 
Rapporteur's proposal to read: 

The fact that a person charged with an offence defined in this Code acted 
pursuant to order of his government or of a superior does not relieve him from 
responsibility, provided a moral choice was in fact possible to him. 

In its commentary on this Article the Commission said: 

Principle IV of the Commission's formulation of the Nuremberg principles, 
on the basis of the interpretation given by the Nuremberg Tribunal to article 8 
of its Charter, states: "The fact that a person acted pursuant to order of his 
Government or of a superior does not relieve him from responsibility under 
international law, provided a moral choice was in fact possible to him." 

The observations on principle IV, made in the General Assembly during its 
fifth session, have been carefully studied; no substantial modification, however, 
has been made in the drafting of this article, which is based on a clear enunciation 
by the Nuremberg Tribunal. The article lays down the principle that the accused 
is responsible only if, in the circumstances, it was possible for him to act contrary 
to superior orders. 

The International Law Commission's Draft Code did not meet with any 
greater acceptance in the General Assembly than had its formulation of the 
Nuremberg Principles and the project was shelved for some time. When it was 

once again taken up by the Commission in 1954, Article 4 was redrafted to 

* * 52 
state: 

The fact that a person charged with an offence defined in this Code acted 
pursuant to an order of his Government or of a superior does not relieve him of 
responsibility in international law if, in the circumstances at the time, it was possible 
for him not comply with that order. 

This time the Commission's commentary stated: 

Since some Governments had criticized the expression 'moral choice', the 
Commission decided to replace it by the wording of the new text above. 

However, on the recommendation of its Sixth Commission, the General 
Assembly postponed all action on the draft Code until a decision had been 
reached on the definition of aggression. " This did not occur until 1974 and the 
Draft Code of Offences Against the Peace and Security of Mankind did not reappear 
on the agenda of the International Law Commission until 1981. During its 1984 
session it once again started to have annual discussions on the subject. Most of 



Superior Orders 283 

its time has been spent on the question of the offenses to be included and through 
1986 the problem of superior orders had not been reached for discussion. As a 
result, today, almost forty years later, the efforts of the International Law 
Commission to "formulate" the Nuremberg Principles and to draft a code of 
offenses against the peace and security of mankind have still not been successful. 
On the same day that it adopted the resolution on the "formulation" of the 
Nuremberg Principles and the drafting of a code of offenses, the General 

Assembly adopted another resolution which requested the Economic and Social 

54 
Council to draw up a convention on genocide. The Council, in turn, 

requested the Secretary-General to collate the comments received and to prepare 

55 
a draft convention on the subject. Article V of his draft provided: 

Command of the law or superior orders shall not justify genocide. 

No provision on the subject of superior orders appears in the convention as 
eventually drafted and adopted. 

Other International Efforts to Codify the Rule 

We have seen the actions taken by the United Nations General Assembly, 
and by its subordinate bodies, concerning the codification of the rule with respect 
to the non-availability of the defense of superior orders in international criminal 
trials. Now let us review the efforts of other international bodies on this subject. 

In 1948 the XVIIth (Stockholm) International Red Cross Conference 
recommended that the International Committee of the Red Cross (ICRC) draft 

provisions for the repression of breaches of the humanitarian conventions which 

• 57 
were then in the process of evolution and which ultimately became the four 

58 
1949 Geneva Conventions for the Protection of War Victims. The ICRC complied 

with that resolution and, with the help of a small group of recognized experts, 

• 59 
drafted a number of separate provisions on the subject, one of which provided: 

ARTICLE 40 (a) 

The fact that the accused acted in obedience to the orders of a superior or in 
pursuance of a law or regulation shall not constitute a valid defence, if the 
prosecution can show that in view of the circumstances the accused had reasonable 
grounds to assume that he was committing a breach of this Convention. In such 
a case the punishment may nevertheless be mitigated or remitted, if the 
circumstances justify. 



With respect to this proposed provision the ICRC said 



60 



284 Levie on the Law of War 

It establishes, within prescribed limits, the responsibility of offenders; it rejects 
the principle, recognized in various military penal codes, that orders received from 
a superior exculpate the subordinate who has carried them out. 

The text proposed does not, however, go as far as the Declaration of London 
of August 8, 1945, which, in the case of 'war crimes', only admitted the plea of 
superior orders as a possible extenuating circumstance, the executor of the order 
bearing full responsibility. 

The suggested text appears to the ICRC to be an acceptable compromise 
between obedience to orders, — an essential prerequisite of military 
discipline, — and the moral duty to oppose any patent atrocity, such as the massacre 
of defenceless women and children. 

It should be noted that the onus of proof lies on the prosecution. This is 
important in view of the fact that certain legislations called upon the accused to 
prove that he was not guilty. 

The experts debated whether, even in the case of flagrant participation in such 
violations, the threat of death were not sufficient to constitute a legal excuse for 
obeying superior orders. No concession of this kind was however made, as every 
latitude is left to the judge to mitigate or remit punishment. This power of 
discretion seems the best practical solution to the conflict on this point between 
English and Continental conceptions of law. 

The few bits of legislative history which are available on this subject, 
particularly the report of its Special Committee, indicate that the 1949 
Diplomatic Conference discarded the forgoing provision on the following 
basis: 

[N]or could general agreement be reached at this stage regarding the notions 
of complicity, attempted violation, duress or legitimate defense or the plea 'by 
orders of a superior'. These should be left to the judges who would apply the 
national laws. 

The Diplomatic Conference is not here to work out international penal law. 
Bodies far more competent than we are have tried to do it for years. 

As a result, no provision with respect to superior orders appears in the 1949 
Geneva Conventions. 

In 1971 the ICRC convened a Conference of Government Experts to 
consider the drafting of a protocol to the 1949 Geneva Conventions which, 
among other things, would remedy some of the defects in those Conventions 
which had surfaced over the years. One of the conclusions reached by 
Commission IV of that first conference was to the effect that: 

556. A number of shortcomings in the Conventions should be remedied. They 
concerned, in particular, the question of superior orders. That problem had not 
been provided for in the Conventions, and it was necessary to specify precisely 



Superior Orders 285 

under what conditions an accused person could plead that he had received orders 
from a superior, as a justification for his commission of an act forbidden by the 
Conventions. In order to remedy that deficiency it would be necessary to be 
guided by the work of the United Nations which itself took as a basis the principles 
laid down by the Nuremberg tribunal. 

Apparently the ICRC felt that there was more justification in the decision of 
the 1949 Diplomatic Conference than in the recommendation of the 1971 
Conference of Government Experts and when it prepared a draft Protocol to 
the 1949 Geneva Conventions for consideration by various other preliminary 
conferences which it was about to convene, that draft included the following 
rather innocuous paragraph in its Article 75: 

2. The High Contracting Parties shall determine the procedure to be followed 
for all application of the principle under which a subordinate is exempted from 
any duty to obey an order which would lead him to commit a grave breach of 
the provisions of the Conventions and of the present Protocol. 

In its Commentary on that provision the ICRC said: 

In particular, it [the ICRC] considered that the basic question of superior orders 
should be setded at the national level, in a manner consistent with the guidelines 
laid down in the Judgment of the Nuremberg Tribunal, namely, that it should be 
possible for soldiers to refuse to obey an order which, if carried out, would 
constitute a serious infraction of humanitarian rules. The military regulations of 
some countries already contain a provision regarding superior orders and 
submission to rank, whereby superiors must only issue orders which conform to 
international law and subordinates are relieved from the obligation to obey an 
order which would be contrary thereto and which would cause them to commit 
a crime or an offence. 

The summary of the discussions of this article that took place at the 1972 
(Second) Conference of Government Experts, convened by the ICRC to review 
and propose changes in the draft Protocol which the ICRC had prepared, 
indicates some of the problems that have been encountered in the efforts to 
legislate internationally in this area. It states: 

4.123. A number of experts approved the introduction of a provision on 
superior orders, such as proposed in draft Article 75, § 2 of the ICRC text. . . . 
The language of that paragraph did not, however, seem sufficiendy clear and a 
number of amendments were proposed. It was pointed out that attempts had been 
made in several national legislations to give a satisfactory formulation of the defence 
of superior orders, a concept recognized by the Charter and the Judgment of the 



286 Levie on the Law of War 

International Military Tribunal at Nuremberg; but so far it had appeared 
impossible to find a formula that would really cover all situations and on which 
agreement would be general. It would not be right to limit the scope of the defence 
to grave breaches only (as the 1CRC draft did). According to one expert, it should 
be stipulated that the subordinate not merely had the right, but was obliged, to 
disobey the unlawful order. Some experts, however, were of a completely opposite 
view and demanded the deletion of the proposed paragraph. They laid emphasis 
on the necessity to respect the exigencies of military discipline, and they pointed 
out that it would be difficult in time of armed conflict to permit soldiers to decide 
whether to obey or not. It was equally considered that the approach to this question 
should be far more general and that the principles recognized by the Nuremberg 
Tribunal, the Draft Code of Offences Against the Peace and Security of Mankind 
should be taken into account. 

Actually, there were five separate proposals on the subject of superior orders, 
none of which was adopted by the Conference. The ICRC thereupon took 
it upon itself to include the following provisions in the Draft Additional Protocol 
I prepared by it for use as the Working Document of the Diplomatic Conference 
which the Swiss Government had already agreed to host beginning in April 
1974: 67 

ARTICLE 77. — Superior orders 

1 . No person shall be punished for refusing to obey an order, of his government 
or of a superior which, if carried out, would constitute a grave breach of the 
provisions of the Conventions or of the present Protocol. 

2. The fact of having acted pursuant to an order of his government or of a 
superior does not absolve an accused person from penal responsibility if it be 
established that, in the circumstances at the time, he should have reasonably known 
that he was committing a grave breach of the Conventions or of the present 
Protocol and that he had the possibility of refusing to obey the order. 

/TO 

The ICRC's Commentary on that provision stated: 

It was pointed out that this provision might put soldiers in an extremely difficult 
position, as they were compelled by military laws and regulations to obey orders 
issued to them. That is the reason why it was thought necessary to add to the 
sentence "he should have reasonably known that he was committing a grave 
breach" the words "and that he had the possibility of refusing to obey the order." 

These provisions fared no better in the Diplomatic Conference which drafted 
the 1 977 Protocol I than had the comparable provision proposed by the ICRC 
in 1949 fared in the earlier Diplomatic Conference. Fortunately for the 
researcher, the action on these provisions is better documented than was that of 



Superior Orders 287 

its 1949 predecessor. After considerable debate in Committee I during the 1976 
and 1977 sessions of the Diplomatic Conference, a roll call vote was taken in 
that Committee to make the basic determination as to whether an article on 
superior orders should be included in the Protocol which was being drafted. 
That roll call resulted in a favorable vote of 34/9/35. To implement that 
decision the following article was subsequendy approved by the Committee by 
a vote of 38/22/1 5: 

Article 77. — Superior orders 

1. The High Contracting Parties undertake to ensure that their internal law 
penalizing disobedience to orders shall not apply to orders that would constitute 
grave breaches of the Conventions and this Protocol. 

2. The mere fact of having acted pursuant to an order of an authority or a 
superior does not absolve an accused person from penal responsibility, if it be 
established that in the circumstances at the time he knew or should have known 
that he was committing a grave breach of the Conventions or of this Protocol. It 
may, however, be taken into account in mitigation of punishment. 

The breadth of the differing views of the various delegations was indicated 

72 
by the fact some twenty-five of them found it necessary to explain their votes. 

Those explanations fell into three general categories: the proposed article either 

did, or did not, draw the necessary balance between compliance with 

humanitarian law and military discipline; the proposed article either did, or did 

not, draw an adequate distinction between national and international law; and 

the proposed article properly, or improperly, limited its coverage to "grave 

breaches" of the 1949 Geneva Conventions and of the Protocol. Thereafter, 

with a minimum of discussion, the article was taken up by the Plenary Meeting 

on 30 May 1977 and resulted in a vote 36/25/25. As the Conference rules 

required a two-thirds majority for the inclusion in the 1977 Protocol I, the vote 

constituted a rejection of the article on superior orders. (Although abstainers 

were not considered as voting, the 36 affirmative votes out of 61 votes cast 

amounted to only 59% of the total. To have been included in the 1977 Protocol 

I, 41 of the 61 votes cast were required.) 

Conclusion 

There has been no international activity in this area since the rejection by the 
Diplomatic Conference in 1977 of the provision adopted by the Committee of 
that Conference. The current discussions in the International Law Commission 
appear to have completely eliminated any reference to the subject; and the 
present author is inclined to believe that even if the Commission were to adopt 
a provision, perhaps similar to that contained in its 1954 draft of Code of Offences 



288 Levie on the Law of War 

Against the Peace and Security of Mankind, it is doubtful that such a provision would 
receive the approval of the Sixth (Legal) Committee of the General Assembly 
or that it would be included in any convention submitted to the nations for 
adoption. In other words, it appears unlikely that there will be any internationally 

"7 A 

approved provision on the subject of superior orders in the foreseeable future. 

Where does that leave the matter? On two occasions specific proposals for 
provisions of major humanitarian conventions on the law of war which would 
have placed limitations on the availability of superior orders as a defense have 
been rejected by large, representative, Diplomatic Conferences. An organ of the 
United Nations eliminated such a proposal from the draft of the Genocide 
Convention prepared by its Secretary-General. Two specific proposals drafted 
by the International Law Commission which included provisions on the subject 
of superior orders have met with less than enthusiasm from the General Assembly 
of the United Nations. Although this latter was not necessarily directed against 
the proposed provisions with respect to superior orders, but might have been 
directed against other parts of the documents submitted by the Commission, the 
fact remains that in the more than forty years which have elapsed since the 
completion of the war crimes trials after World War II, there has been no 
successful drafting of such a provision by any international body — and there is 
none in sight. Unless applicable national law provides otherwise, any defense 
counsel in a future war crimes trial would be professionally derelict if he failed 
to assert to the trial court that the rule denying the availability of the defense of 
superior orders has been rejected as a rule of international law and that such a 
defense is available to an individual charged with the commission of a violation 
of the law of war. 

Notes 

1. For studies in depth of many of these aspects of the problems, see: L'Obeissance Militaire au regard des 
Droits Penaux Internes et du Droit de la Guerre, V. Recueils de la Societe Internationale de Droit Penal Militaire 
et de Droit de la Guerre (1971); Y. Dinstein, The Defence of 'Obedience to Superior Orders' in International Law 
(1965) (hereinafter cited as Dinstein); L.C. Green, Superior Orders in National and International Law (1976); and 
N. Keijer, Military Obedience (1978). 

2. Throughout the discussion which follows it must be borne in mind that there are two totally opposing 
points of view of the problem of obedience to the order of a superior: the point of view of the armed force 
which alleges the commission of a war crime against it by a member of the enemy armed force (this will usually 
be similar to the international point of view); and the point of view of the armed force of which the individual 
who allegedly received and complied with the illegal order is a member (the primary concern here will be 
with the problem of military discipline). 

3. 2 Schwarzenberger, International Law as Applied by Courts and Tribunals 462-466 (1968). 

4. United States v. Henry Wirz, H.R. Ex. Doc. No. 23, 40th Cong., 2nd Sess., 706 (1867). 

5. Idem at 773 and 778. 

6. /<fem at 808. 

7. 2 Oppenheim, International Law: A Treatise 264 (1st ed., 1906). As far as it goes, this statement closely 
resembles the provision of the German Military Penal Code quoted by the Court in The Llandovery Castle 
Case. See text in connection with note 14, infra. 

8. 2 Oppenheim, International Law: A Treatise 453-455 (H. Lauterpacht, ed., 5th ed., 1935). 



Superior Orders 289 

9. 2 Oppenheim, International Law: A Treatise 453-455 (H. Lauterpacht, ed., 6th ed., 1940). An article 
by Lauterpacht entided "The Law of Nations and the Punishment of War Crimes", 21 Brit. Y.B. Int'l L. 58, 
69_74 (1944) sets forth the reasons for his new position. 

10. 2 Oppenheim, International Law: A Treatise 568 (H. Lauterpacht, ed., 7th ed., 1952). 

11. 14 A.J.I.L. 95, 117(1920). 

12. Treaty of Peace between the Allied and Associated Powers, of the One Part, and Germany, of the Other Part, 
signed at Versailles, 28 June 1919, 112 B.F.S.P. 1; 225 Perry T. S. 188; 2 Treaties and Other International 
Agreements of the United States of America, 1776-1949, at 43 (C. Bevans, ed.). 

13. See, generally, C. Mullins, The Leipzig Trials (1921). 

14. The Llandovery Castle Case, 2 Ann. Dig. 436 (1923-1924); 16 A.J.I.L. 708, 721-722 (1922). In a prior 
case (The Dover Castle, 2 Ann. Dig. 429 (1923-1924); 16 A.J.I.L. 704 (1922), the same court had acquitted an 
accused charged with sinking a British hospital ship because he had honesdy believed that the order which he 
obeyed was justified as a lawful reprisal for the misuse of such vessels. 

15. One author interprets this decision to lay down the rule that, under German national law, "a 
subordinate may count on the legality of the orders received by him; but when it is known to one and all, the 
subordinate himself not excluded, that the order is unlawful, we encounter an exception to the rule, and the 
subordinate can rely no longer on the alleged legality of the order." Dinstein, supra note 1, at 16. 

16. Treaty Relating to the Use of Submarines and Noxious Gases in Warfare signed at Washington, 6 February 
1922, 25 L.N.T.S. 202; 16 A.J.I.L. (Supp.) 57 (1922). 

17. A notable exception to the foregoing statement is E. Colby, "War On Crimes," 23 Mich. L. Rev. 
482-511,606-634(1925). 

18. See, for example, the Declaration of St. James, London, 13 January 1942 (United Nations War Crimes 
Commission, History of the United Nations War Crimes Commission and The Development of the Laws of War 89-90 
(1948) (hereinafter cited as United Nations History); 144 B.F.S.P. 1072; the statement made at Moscow in 1943 
(For. Rel. of the U.S., 1943, Vol. 1, General, at 768-769); the agreement reached at Yalta in 1945 (Department 
of State), The Conference of Malta and Yalta, 1945, at 975, 979 (1955); and the Potsdam Communique (154 
B.F.S.P. 366, 467). Germany also had plans for trials with respect to war crimes allegedly committed by its 
enemies. A. de Zayas, Die Wehrmacht Untersuchungsstelle (1979) (published in English under the tide The 
Wehrmacht War Crimes Bureau, 1 939-1945. 

19. United Nations History, supra note 18, at 98. 

20. Idem at 275. 

21. Idem at 112-113 and 158-159. It should be borne in mind that here the term "United Nations" refers 
to the nations at war with Germany and Japan. The United Nations Organization was not yet in existence. 

22. Mem at 279. 

23. Idem at 280. 

24. Loc. cit. 

25. Report of Robert H.Jackson, United Nations Representatives to the International Conference on Military Trials 
22, 24 (1949) (hereinafter cited as Jackson). 

26. Idem at 28, 33. 

27. Idem at 55, 58. 

28. Idermt 119, 124. 

29. Idem zt 165, 181. 

30. Idem at 194, 197. 

31. Idem at 367-368. 

32. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, with the 
Charter of the International Military Tribunal Attached, signed at London, 8 August 1945, 82 U.N.T.S. 279. 
Nineteen other States subsequently adhered to this Agreement. 

33. Judgment of the International Military Tribunal, Nuremberg, 30 September-1 October 1946, 1 Trial of 
Major War Criminals 171, 224 (1947) (hereinafter cited as T.M. W.C.); Nazi Conspiracy and Aggression: Opinion 
and Judgement 53-54 (1947) (hereinafter cited as Nazi Conspiracy). 

34. 1 T.M. W.C., supra note 33, at 226; Nazi Conspiracy, supra note 33, at 55-56. 

35. In setting forth the reasons for the findings of guilty with respect to Field Marshal Wilhelm Keitel and 
Colonel General Alfred Jodl, the Tribunal referred to Article 8 and then made a passing reference to the fact 
that the provisions of that Article precluded resort to the defense of superior orders. As to each of these accused 
it specifically found nothing in mitigation. 1 T.M. W. C, supra note 33, at 2981 and 325; Nazi Conspiracy, supra 
note 33, at 118-119 and 151. 

36. 1 T.M.W.C., supra note 33, at 278-279; Nazi Conspiracy, supra note 33, at 107. The General Staff and 
the High Command were found not to be criminal organizations. 1 T.M.W.C., supra note 33, at 276-279; 



290 Levle on the Law of War 

Nazi Conspiracy, supra note 33, at 105-107. The Soviet member of the Tribunal dissented from this finding. 1 
T.M.W.C, supra note 33, at 359-364; Nazi Conspiracy, supra note 33, at 183-188. 

37. 1 The Law of War: A Documentary History 908, 909 (L. Friedman, ed., 1972); Documents on Prisoners of 
War 304, 305 (H. Levie, ed., 1979) (hereinafter cited as Documents). This Law was further implemented by 
the heads of military government in the four zones of occupation. Provisions to the same effect as that of 
Allied Control Council Law No. 10 will, for example, also be found in the regulations issued by the U.S. 
Commanders in the Mediterranean and in China. See United Nations War Crimes Commission, 1 Law Reports 
ofTriab of War Criminab 120 (1947) (hereinafter cited as Law Reports). 

38. The Hostage Case (United States v. Wilhelm List et al.), 1 1 Trials of War Criminals 1230, 1236 (1950). 

39. The Einsatzgruppen Case (United States v. Otto Ohlendorfet al.), 4 Idem at 411, 470-471 (1950). 

40. In a study in considerable depth of this problem, one international law scholar has made a proposal 
for a rule which parallels the reasoning of the Tribunals in these cases. His proposed rule is as follows: 

The fact that a defendant acted in obedience to superior orders shall not constitute a defence per 
se, but may be considered — in conjunction with other circumstances — within the scope of an 
admissible defence based on lack of mens rea. 

Dinstein, supra note \, at 252. A perusal of the opinions of the three judges of the United States Court of 
Military Appeals in the case of United States v. William L. Calleyjr. [22 C.M.A. 534, 48 C.M.R. 19 (1973); 
habeas corpus granted 382 F. Supp. 650 (1974), rev'd 519 F. 2d 184 (1975), cert. den. 425 U.S. 911 (1976)] 
will reveal some of the difficulties encountered in attempting to establish the scale by which the knowledge 
of the illegality of the order is to be measured. 

41. The High Command Case (United States v. Wilhelm von Leeb et al), 11 Trials of War Criminals 462, 509 
(1950). 

42. Idem*t5\\. 

43. 15 Law Reports, supra note 37, at 157-158 (Emphasis in original.) 

44. Special Proclamation by the Supreme Commander for the Allied Powers, 19January 1946, 4 Treaties and Other 
International Agreements of the United States of America, 1 77 6-1 949, at 20, 23 and 27, 28 (C. Bevens, ed., 1970); 
Documents, supra note 37, at 312. The amendment of this Charter on 26 April 1946 did not affect this provision. 

45. See The Tokyo Judgment (B. Roling and C. Ruter, eds., 2 Vols., 1977). 

46. See note 37, supra, and the text in connection therewith. For other representative examples, see 3 Law 
Reports, supra note 37, at 93, 96 (France); idem at 81, 85 (Norway); 4 idem at 125,129 (Canada); but see 1 1 idem 
at 86, 99 (Netherlands). In his much cited book, published during the course of World War II, Professor 
Trainin left no doubt that in the Soviet Union superior orders would not be a defense when the order "is not 
a military order but an incitement to crime." A.N. Trainin, Hitlerite Responsibility under Criminal Law 90 (c. 
1945). In addition, the official Soviet position at the 1945 London Conference unquestionably fully supported 
the inclusion of Article 8 in the Charter of the International Military Tribunal. See pp. 9-10, supra note 25, at 
61,62. 

47. G.A. Res. 94(1), 11 December 1946; 2 B. Ferencz, An International Criminal Court 127 (1980) 
(hereinafter cited as Ferencz); 1 J. Djonovich, United Nations Resolutions 175 (hereinafter cited as Djonovich). 

48. Formulation of the Nuremberg Principles, (1950) Y.B. Int'l L. Comm'n 374; 2 Ferencz, supra note 47, at 
235, 237; Documents, supra note 37, at 559, 560. 

49. G.A. Res. 488 (V), 12 December 1950; 2 Ferencz, supra note 47, at 312; 3 Djonovich, supra note 47, 
at 151. 

50. [1951] 2 Y.B. Int'l L. Comm'n 43, 60; 2 Ferencz, supra note 47, at 331. 

51. [1951] 2 Y.B. Int'l L. Comm'n 123, 137; 2 Ferencz, supra note 47, at 335-336; 45 A.J.I.L. (Supp.) 123, 
132(1951). 

52. [1951] 2 Y.B. Int'l L. Comm'n 123, 137; 2 Ferencz, supra note 47, at 462-463. 

53. G.A. Res. 897 (IX), 4 December 1954; 2 Ferencz, supra note 47, at 467; 5 Djonovich, supra note 47, 
at 166. See also G.A. Res. 1 186 (XII), 1 1 December 1957; 2 Ferencz, supra note 47, at 497; 6 Djonovich, supra 
note 47, at 243. 

54. G.A. Res. 96 (I), 11 December 1946; 2 Ferencz, supra note 47, at 127, 1 Djonovich, supra note 47, at 
175. 

55. Draft Convention on Genocide, U.N. Doc. A/362 (25 August 1947); 2 Ferencz, supra note 47, at 131. 
The United States commented that the article should include the provision on mitigation of punishment 
contained in the London Charter. U.N. Doc. 402/Add.2 (30 September 1947); 2 Ferencz, supra note 47, at 
143, 145. 

56. Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (III), 9 December 
1948; 78 U.N.T.S. 277; 2 Ferencz, supra note 47, at 174; 2 Djonovich, supra note 47, at 238. An attempt by 



Superior Orders 291 

the Soviet Union to have the Sixth Committee restore this provision was rejected by a vote of 15 for, 28 
against, and 6 abstaining. Y.B. of the U.N., 1948-1949, at 954-955. 

57. International Committee of the Red Cross, Report of the Seventeenth (Stockholm) International Red Cross 
Conference 94 (1948). 

58. 1949 Geneva Conventions for the Protection of War Victims, Geneva, 12 August 1949, 75 U.N.T.S. 
31/85/135/287; 6 U.S.T. 3114/3217/3316/3516; 157B.F.S.P. 234/262/284/355. 

59. Revised and New Draft Conventions for the Protection of War Victims: Remarks and Proposals Submitted by 
the International Committee of the Red Cross 19, 34, 64, 85 (February 1949). 

60. Idem at 21-22. 

61 . Swiss Federal Political Department, Fourth Report of the Special Committee of the Joint Committee, 
12 July 1949, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. IIB, at 115 (n.d.). Article 40 was 
among those discussed by the Special Committee during the 29th-33rd Meetings but the term "superior 
orders" was not mentioned at any time. Idem at 85-91. 

62. International Committee of the Red Cross, Report on the Work of the Conference of Government Experts 
on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (First Session) 

(August 1971). 

63. International Committee of the Red Cross, Conference of Government Experts on the Reaffirmation and 
Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session), Basic Texts, 25 

(January 1972). 

64. International Committee of the Red Cross, Conference of Government Experts on the Reaffirmation and 
Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session), Commentary (Part 
One) 155 (January 1972). 

65. International Committee of the Red Cross, Report on the Work of the Conference of Government Experts 
on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Second 

Session) Vol. 1, 188 (July 1972). 

66. Idem at 189 (§ 4.126). 

67. International Committee of the Red Cross, Draft Additional Protocols to the Geneva Conventions of August 
12, 1949, at 25 (June 1973). 

68. International Committee of the Red Cross, Commentary on the Draft Additional Protocols to the Geneva 
Conventions of August 12, 1949, at 97 (October 1973). 

69. 1977 Protocol Additional to the Geneva Conventions of August 12,1949, and Relating to the 
Protection of Victims of International Armed Conflicts (Protocol I), Swiss Federal Political Department, Official 
Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable 
inArtned Conflicts (Geneva 1974-1977), Vol. I, Part 1, at 115 (1978) (hereinafter cited as Official Records) ; U .N . 

Doc. A/32/144, 15 August 1977, Annex I; 16 I.L.M. 1391. 

70. Official Records, supra note 69, at 381, 387; Protection of War Victims: Protocol I to the 1949 Geneva 

Conventions (Supplement) (H. Levie, ed., 1985) 22-23 (hereinafter cited as Protection). The Communist bloc 
voted solidly in favor of including such a provision, as did Belgium, Canada, France, Ireland, Japan, 
Netherlands, Norway, Portugal, and the United States; while Australia, India, New Zealand, Pakistan, and 
Switzerland voted against it. Denmark, the Federal Republic of Germany, Italy, and the United Kingdom 
abstained, as did a majority of the Third World countries. 

71. Official Records, supra note 69, at 392; Protection, supra note 70, at 26. 

72. Official Records, supra note 69, at 399-415; Protection, supra note 70, at 26-36. 

73. Official Records, supra note 69, at 329-339; Protection, supra note 70, at 38-45. There was no roll-call 

vote in the Plenary Meeting. After its rejection by the Plenary Meeting, nine countries, including Canada, 
Spain, and the United States, explained their votes. VI Official Records, supra note 69, at 329-340; Protection, 
supra note 70, at 39-45. 

74. Subsequent to writing the foregoing statement the author learned that the International Law 
Commission had not included a provision on superior orders in its latest Draft Code of Crimes [sic] Against the 
Peace and Security of Mankind. SeeS. McCaffrey, "The Fortieth Session of the International Law Commission," 
83 AJ.I.L. 153, 155 (January 1989). 



XVI 

Submarine Warfare: With Emphasis on the 
1 936 London Protocol 

The Law of Naval Warfare: Targeting Enemy Merchant Shipping 28 

(Naval War College International Law Studies No. 65, 

Richard J. Grunawalt ed., 1993) 



Parti 
Early History of the Submarine 

Although the idea of a submersible boat dates back at least to the early 
seventeenth century, and a number of efforts to perfect such a vessel had 
occurred over the subsequent years, it was not until the latter part of the 
eighteenth century that realistic attempts began to be made in this respect. 
During the American Revolution David Bushnell devised a one-man 
submersible known as the American Turtle. Its several attacks against British 
warships were, for one reason or another, all unsuccessful. Then in 1 797 Robert 
Fulton, who had been demonstrating his version of the submersible to the French 
Navy, submitted a proposal to the French Directory for the construction and 
the use by his "Nautulus Company" of a submarine against the ships of the 
British Navy. Paragraph Six of that proposal stated: 

And whereas fire Ships or other unusual means of destroying Navies are 
Considered Contrary to the Laws of war, and persons taken in such enterprises 
are liable to Suffer death, it will be an object of Safety if the Directory give the 
Nautulus Company Commissions Specifying that all persons taken in the Nautulus 
or Submarine Expedition Shall be treated as Prisoners of War, And in Case of 
Violence being offered the Government will Retaliate on the British Prisoners in 
a four fold degree. 

It can thus be seen that even in its earliest form, and even when it was to be 
directed solely against warships, the submarine was a controversial weapon. 
Fulton was unable to sell his idea to the French Government. Subsequently, he 
was equally unsuccessful in selling it to the British. 

From the very beginning of the idea of a vessel that would travel under the 
water instead of on the water, it was accepted that if it could be successfully 



294 Levie on the Law of War 

developed it would be an asset to small nations, nations which could not afford 
large standing navies. It was assumed that, because of its anticipated short range, 
it would be used primarily for coastal defense. It is, therefore, not surprising to 
find that during the American Civil War the Confederacy developed and built 
this type of vessel to be used against the blockading warships of the Union Navy. 
It was called a David and altogether the Confederate Navy probably constructed 
more than a dozen of them. It was not truly a submersible, because, being 
propelled by a steam engine, it had to have a constant source of air. Accordingly, 
it moved with its deck awash and an open hatch — not exacdy a recommended 
method for safe navigation, and one which resulted in a number of sinkings 
during its trials, with the loss of most of the members of the crews. However, 
on October 5, 1863, one of these boats attacked and damaged the U.S.S. New 
Ironsides. The Confederates also built a true submersible, called the Hunley, 
propelled by eight members of the crew turning a crankshaft which ran down 
the center for most of the length of the vessel and which was connected to a 
propeller. Its claim to fame is that on February 17, 1864 it sank the U.S.S. 
Housatonic-znd itself] It may be said that the David and the Hunley ushered in the 
era of the submarine in warfare — even though at this point the Confederate 
Navy appeared to lose interest in submersibles. 

In the quarter century which followed, numerous other inventions were 
being developed, and tested, in various countries, particularly in France, a 
country which had early exhibited great interest in such a weapon, even though 
it had rejected Fulton's proposal. The first really successful submersible, the 
forerunner of the submarine of today, was built by John P. Holland, an 
Irish-American who, after he had constructed several models, succeeded in 
selling the latest version of the Holland to the United States Navy in 1900, the 
first that it had acquired. At that same period both the United States Navy and 
the Royal Navy placed orders with Holland for the construction and delivery 
of additional submarines; while a number of continental nations were placing 
similar orders with Holland and other inventors. Even Admiral von Tirpitz, 
head of the German Navy, was eventually convinced that the submarine was 

o 

no longer solely a weapon of coastal defense. 

The 1899 Hague Peace Conference 

When, on December 30, 1898, the Ministry of Foreign Affairs of Imperial 
Russia issued its proposed agenda for the 1899 Hague Peace Conference, one 
item thereof stated: 

4. Prohibition of the use in naval battles of submarine or diving torpedo-boats or 
of other engines of destruction of the same nature; 



Submarine Warfare 295 

When the matter was discussed in the Second Subcommission of the First 
Commission of the Conference on May 31, 1899, the German representative 
indicated that "if all the other governments agreed not to adopt vessels of this 
kind, Germany would join in this understanding"; and the Italian and Japanese 
delegates concurred in that statement; the United States delegate indicated that 
his Government "wishes to preserve full liberty ... to use submarine torpedo 
boats or not"; the delegate of Austria-Hungary gave his personal opinion that 
"this new invention . . . may be used for the defense of ports and roadsteads and 
render very important services"; the French delegate stated that "the submarine 
torpedo [boat] has an eminendy defensive purpose, and that the right to use it 
should therefore not be taken from a country"; the British delegate thought that 
"his country would consent to the prohibition in question if all the great Powers 
were agreed on this point. It would concern itself little as to what decision the 
smaller countries reached"; the Dutch delegate and the delegate of Sweden and 
Norway believed that "the submarine torpedo [boat] is a weapon of the weak, 
and does not think its use can be prohibited." 

In his report the Rapporteur of the Subcommission said 

After an exchange of personal views on the question of submarine torpedo boats 
which enabled several delegates ... to formulate very clear and precise ideas 
regarding the future of this weapon, it is shown that, according to the declarations 
made by a majority of the delegates, a prohibition of the boats in question must 
be considered as very unlikely, at least for the time being. 

His prognostication was confirmed when a vote on the proposal to ban the 
submarine was taken in the First Commission and resulted in five votes (Belgium, 
Bulgaria, Greece, Persia, and Siam) for the prohibition with reservations; five 
votes (Germany, Great Britain, Italy, Japan, and Rumania) for the prohibition 
on condition of unanimity; and nine votes (Austria-Hungary, Denmark, France, 

Netherlands, Portugal, Spain, Sweden and Norway, Turkey, and the United 

12 
States) in the negative. Russia, Serbia, and Switzerland abstained. That ended 

all efforts to ban the submarine at the 1899 Hague Peace Conference. It should 

be borne in mind that at this point in time most naval experts still considered 

that the submarine was a weapon to be used for coastal defense, particularly by 

13 
the smaller and weaker nations which did not have strong navies. Litde or no 

consideration was given to the fact that the submarine might be valuable as a 

commerce destroyer and on the high seas. Moreover, having failed to ban the 

submarine, inexplicably, no attempt was made to obtain even minimum 

.14 
restnctions on its operations. 



296 Levie on the Law of War 

The 1907 Hague Peace Conference 

During the period between the Hague Peace Conferences of 1899 and 1907, 
the major international event in the military area was the Russo-Japanese War 
(1904-1905). No submarines participated in this conflict but, as one author has 
pointed out, even a few Russian short-range submarines could have done enough 
damage to the Japanese to have caused the latter to lift the blockade of Port Arthur 
and even a few of the longer-ranged ones could have effectively impeded the landing 
of Japanese troops in Korea. At that time, however, neither Japan nor Russia had 
any submarines in their navies. That situation would soon change. 

The Russian agenda for the 1907 Second Hague Peace Conference called for 

the "framing of a convention relative to the laws and customs of maritime 

• -17 

warfare," but contained no specific mention of the submarine. ' When the 

Fourth Commission of that Conference met for the first time on June 24, 1907, 

its President, de Martens of Russia, said: "We must now do for naval warfare 

what the Second Commission of the last Peace Conference did for land 

18 
warfare." While the Conference did draft a number of conventions with 

respect to war at sea, some good and some not so good, the possibility of drafting 

rules with respect to the use of submarines was not even a subject of discussion. 

Although there is a tendency on the part of writers to refer to the inability of 

both of those Hague Peace Conferences to reach agreement on restrictions on 

19 
the use of submarines, the present author could find only one passing reference 

to the subject in the proceedings of the 1907 Conference. During the lengthy 

discussion of the United States proposal to exempt all private property from 

capture or seizure at sea the Belgian delegate said: 

A torpedo-boat or a submarine can annihilate in a few moments a magnificent 
vessel representing an enormous outlay and a thousand lives. In 1899 Russia 
proposed that the employment of such engines of destruction be given up, just as 
the poisoning of arms and of springs had been prohibited, and most of the Powers 
seemed ready to adhere to the proposal provided it were accepted unanimously. 
But unfortunately I do not now see any indication among us of such an idea. 

No further mention of submarines could be found. It will, however, be appropriate 
to point out that Article 3 of the 1907 Hague Convention No. VI provided that if 
an enemy merchant ship were to be destroyed "provision must be made for the 
safety of the persons on board as well as the security of the ship's papers."' 

1909 Declaration of London 

Article I of this Declaration stated that "the rules contained in the following 
Chapters correspond in substance with the generally recognized principles of 
international law." As the Declaration was intended to be all-inclusive insofar 



Submarine Warfare 297 

as restrictions on maritime trade during the course of a war were concerned and 

as it contained no special rules with respect to submarines, it must be assumed 

23 
that there were at that time still no such rules. That being the case, submarines 

would be bound by the general rules applicable to all warships. Customary 

international law prescribed that, while a warship could be attacked without 

warning, a merchant vessel was a noncombatant which could only be attacked 

after warning and which could only be sunk under e