Book Reviews

• Pages: 07

NEW RULES FOR VICTIMS

OF ARMED CONFLICTS*

Bathe, Michael, Karl Josef Partsch, and Waldemar A. Soli. .Vew Rules for Victims ofArmed Conflicts: Commentary on. the Two 1977 Protocols Additional to the Geneta Comntions oi1.949. The Hague, Boston. London: Martinus Kijhoff Publishers, 1982. Pages: XXI, 746. Index. Price: $145.00.

Publisher's address: Kluwer, Boston, Inc., 190

Old Derby Street, Hingham, Massachusetts 02043.

Reaiewed by Major X Wayne Elliott'*

Perhaps no event in recent years has prompted more discuseion' in the area of international law and the law of war than the 1917 Protocols to the Geneva Conventions of 1949.2 The Protocols, some argue. will significantly affect the ability of the U.S. military to carry out its mission. Others argue exactly the opposite-that any effect of the Protocols on U.S. military operations will be minimal and that the "humanitarian" considerations of the Protocols outweigh any slight restriction on military operations. For the lausyer.

MILITARY L.4W REVIEW [VOL. 100

the commander, or the soldier. these are important considerations. An~potentialrestrictionon theabilityof aforce tofight-andaina war ahauld be considered m detail. The book under review8 will significantly aid anyone who has a need to resolve questions as to the effect or intent of the Protocols.

Treaties, like many other contracts. are often the result of seem-ingly endless negotiations, involving diverse parties? the end result of which is a compromise, Such a compromise necessarily leaves questions as to exactly what the drafters intended. To find that Intent. international law like its domestic counterpart. permits the examination ofthedipiamaticnegotiatingrecard."In thelawofwar. this tool 1s particularly important. The negotiations over a treat? governing the conduct of hostilities are replete with the reflection of various political arguments. To sort through the political exhortations of the drafters can be exhausting, to do less can lead to a misunderstanding of the drafters' intent. The authors of this book, delegates to the conference themselves. have provided a succinct commentary an the negotiations for each article. In doing 80 they render a service to those who must work with the 1971 Protocols.

The book begins by proriding a short history of the events leading to the convening of the diplomatic conference. Three factors, Indicative of the need for a revision of the law were considered of special Importance. First. themethodsand meansafnagingirar. haregone essentially neglected since the Hague Regulations of 1907.E Secondly.

W Bathe, K Parrieh, & R Soli 6eiv Ruleifor Victims of Armed Canflicti (1982) TheProtocolrare the resultoffaurdraftingjeiJionJ beginningin 1974 and ending

*A~rtlele3Zaf the Tre~Won

Treaties entitled 'Suoslementarg Meansaf Interorefa

[hereinafter cited as Pratacols]in 19ii Each d e b s m had delegations from oierane hundred countries

19831 BOOK REVIEWS

even though the 1949 Geneva Conventions'added many legal protectionsfor the civilian population, warfare since 1949 has increasingly affected the civilian population. Thirdly, warfare since 1949 has tended to be a different type of conflict than the "traditional" World War I1 type. Warfare in recent years has been characterized by insurgent forces and guerilla tactics. In short, the old rules simply did not fit such new types of conflicts. That the nature of conflicts had changed was recognized by thedelegates. However, theexact extent and typeofnewrulestobeapplied tasuchconflictscausedconsiderable difficulty. Thus the first few pages of the book provide an introduction to the problem. This portion of the book outlines the difficulties inherent in organizing a conference to deal with so importantanissueaswar.Aninitia1 questionfor theconferencewas exactly what type of conflict should be covered. There was a fear that a treaty which attempted to rewrite the 1949 Conventions might actuallyreduee the scopeofthose protections.~

Essentially, therewas a determination that the end product of the negotiations not be biased politically: the result had to be one on which the various political entities and systems could agree. For the person with a question concerning the history and spirit of the Protocol negotiations, the introduction ta the book is an excellent research tool. The introduction provides the framework in which the negotiations took place, and equally important, the spirit, goals, and intent of the conferees.

The book then proceeds to an article by article analysis. Two will be considered here. Article I is entitled "General Principles and Scope of Application." The article has been the subject of some discussion~becauseit purports, in Paragraph4, to extend the protections of the full law of war to "armed conflicts in which people are fighting against colonial domination and alien occupatm and against racist regimes in the exercise of their right of self-determination." Obviously, the language has political overtones, yet it purports to establish a regime of law. The authors put aside the

'Geneva Conventionfor the Profeetion of War Victims (Armed Foreesin the Field),

Aug. 12,1949.3 U S T. 3114 TI A S So 3362,75 U ?.IT

S. 31,Geneva Conventions

for thePratectionofW~rVietimn(Armed

ForeesatSea) An=. 12,1949 3U.S T.3217,T 1.A 8. Na 3363, 15 CS.T S 85: Geneva Convention for the Protection of War Vietims (Prisoners of War). Aug. 12, 1949. 3 U S T 3316 T 1.A.S. So. 3364, 75Ll N T S 135: Geneva Convention for Protection of War Victim civilian^ Persona). Aug. 12.1949.3U.S.T.3516,T.I.AS 3365.75U.N.T.S.287

8Bathe. mpra note 3. at 10*See, P g, DePrue, AmrndedFmtAnic!i io the F m f DrqitProtoca!Addzho,io! iothe Geneva Cowdenttans 0/1840-Its Impaet Cpon Human%tomon Conatraw& an Govern-~ n g

Armed Conillif. 75 Mil L. Rev. il 11377).

political retoric and rely instead on the legal argument. €or Instance, the concept of "armed conflict" is defined by the authors essentially asaconflict whichexceedsriot,sporadicactsafviolence, andsimilar actions normally considered criminal. Further, the conflict must be such that it requires the use of the armed farces rather than the police to put douw the uprising. In defining "racist regimes," the authors conclude that the key point 1s "the absence of the participation of the entire population-for reasons of race and color-in the political process.''1o The key to the definition is, therefore. the struc-tureofastate'selectionlaws."Alienoccupatian,"isintended toapply only in cases wherein a "High Contracting Party"occupie8 a portion of a "on-High Contracting party, or in "territories with a controrersial international status."" The population of the occupied territory must alsobe fightingfor"se1f-determination."Theauthors conclude that the language of Paragraph 4, Article I. was chosen with two actual conflicts in mind-South Africa and Palestine.'z Given that limited field of application. perhaps this paragraph is actually less radical than many assume,

Of particular mportance to the military lawyer Is Article 82.13 "Legal Advisors in Armed Forces "This idea, new to the lair. of war, was first introduced by the Red Cross Experts' Conference in 1971. The Red Crass provision would hare established the place of the lawyer in the military hierarchy and would have explained in detail their "supervisory functions regarding military instructions and breaches of international lau,,''l& Opposition to this proposal came mainlrfrom Brazilwhich argued that itwastooambitiousfor many states. Several states stressed that "legal advisors should assist and not control."16 Article 82 is, therefore. a compromise. First. only High Contracting Parties are obligated to have legal advisors "at ail times Thus insurgent or rebel movements are considered ather "Parties to the conflict," and need have legal advisors only after the

Bathe, ~upro

note 3 af j0-lid at izIsid-SProloeali. lrtiele 82-Legal adrisers in armed farces

The High Can~raetingPartl.satall tlmel,andthePartleila rhecanfllef ID lime ai armed conflict, shall ensure that legal adrners are avahlable when nece~~aii,to advise mlllta~icommandersafthe appropriate lejd on the application of the Conrentionn and fhls Protoeai and on the appropriate msti~~tion

VI be given to the armed forcer on fhls rublect

"Bathe, euupio note 3 ati99.

I=rd B I 500.166

''armed conflict" begins.16 Secondly, the requirement is only that legal advisors be available "when necessary." Under the Red Cross draft these legal advisors must have been "qualified"; this requirement has been deleted. The fact that the military commander is distinguishedfromthe legal advisor should insurethat"thefunctian of the latter cannot be taken over by military vice-commanders without any professional qualifications."17 The authors correctly point out that the article raises a number of probiems. One problem is theappropriatelevel for the legal advisor, Should the legaladvisor beatbrigade,division, corps,oratlowerlevelssuchasbattalionandcompany? Secondly, if thecommander fails to follow theadviceofthe legal advisor, who is responsible? If the legal advisor gives erroneous advice. who is responsible? Though the questions are raised, there are no answers. The discussion of Article 82, at least, provides some background concerning this new requirement In the law of war.

Protocol I1 deals with "nominternational conflicts." Having decided that the protections of Protocol I would apply in anti-colonial mars of national liberation, the delegates provided in Protocol I1 a lesser degree of protection for those involved in other non-international conflicts. One reason for this lesseningofthe protectionwas a belief that placing too high a standard on the parties to such conflicts might indirectly aid the rebel movements, while, at the same time, impairing the...