The Common Application of the Laws of War Within the NATO-Forces

• Author: Dr. Gunther Moritz
• Pages: 01

I. INTRODUCTION

The obligations of the alliance of the fifteen nations of the free world in the North Atlantic Treaty Organization (NATO),' in some respects, exceed the obligations of states within the framework of former military alliances. For example, the member states of the NATO-treaty have committed themselves, in peacetime, to assist each other in order to "maintain and develop their individual and collective capacity to resist armed attack."' Moreover the member states decided, in order to prepare an effective defense, to commence with the "establishment of ample integrated forces under unified command" for the defense of Western Europe.' Therefore, the Supreme Allied Commander Europe (SACEUR) commands forces of those West European countries which are members of NATO. These forces are under operational NATO-command as so-called "assigned forces." There are also other areas of command where integrated staffs have been established as well,

The close cooperation necessarily resulting from these obligations has raised many legal problems, problems which partly have been dealt with in the treaty itself, as well as in supplementary

* The apiniona and ~mclusims preeented herein m e those of the author and do not necessarily represent the vieus of The Judge Advocate Genersl'a Sehool or any ather governmental agency.

**Legal Inatruetor and Legs1 Adviaer to the "Command and General Stan College'' of the Geman Army, Hamburg, Germany; Legal Aasistant, International Law Section, Ministry of Defence, Federal Republic of Germany, 195659; LL.D., 1951, Univeraity of Tbbingen Law School.

North Atlantic Treaty, April 4, 1949, 63 Stat. 2241, T.I.A.S. No. 1964, 34 United Nation8 Treaty Series (U.N.T.S.) 243.

North Atlantic Treaty. mpva note 1, art. 3.

Communique Regarding the Creation of An Integrated Military Force for the Defense of Freedom in Europe, NATO Cauncil. lat Pt. of 5th Seas.. September 18, 1950, in New York; Cammvnique on An Integrated Force under Centralized Command for Western Europe, NATO Conncil, 5th Seas., September 26. 1960; Resolution to Implement Section IV of The Final Act of The London Nine-Power Conference (Octobsr 3, 19541, NATO Co~neil, October 22, 1956. Far texts of the sbove ~omrnuniquds and resolutions, seeU.S. DPp't of State, American Foreign Policy, 1950-1865, Basic Dmu. m e n b 1 . at 1474. 1493-96, ISOS, 160'7, 1608-12 (1957).*GO 1048 1

MILITARY LAW REVIEWtreaties: Great consideration has been given to the national law and the legal obligations of the member states within these treaty provisions, thus preventing any eanflieta between the tresty obligations of the member states towards the NATO treaty and their respective national law in time of peace. But the North Atiantie Treaty is also in accord with international law respecting those nations of the world community that are outside of the Treaty Organization, since the treaty is based on Chapter VII, Article 61 of the Charter of the United Nations, which article expressly resemes the right of collective self-defenae to each UN member state.m

A military alliance, developed through close peacetime cooperation, necessarily faces the task of preparing and planning for the eventuality of armed conflict. It is precisely within this field of planning that many factual and legal problems arise, mainly because of the inevitable influence of such planning on the national conditions and the national law of the member states, conditions and legal structures which differ in many ways within the NATO countries. Some of the difficulties may be overcome by conferring on ministries of defense the authority to conclude binding agreements in the form of so-called administrative agreements. This, for instance, is the task of the Miiitaw Agency for Standardization (MAS), which prepares agreements on the unification of equipment, as well as agreements in the operational and administrative fields. These are the so-called Standardization-Agreements (STANAGs) .* The STANAGs, being merely administrative agreements, are not subject to consideration by the legislative bodiea of the respective member-states. It is sufficient that the consent of the ministry of defense or of another authorized administrative agency is obtained. However, the constitutional, national, and municipal law of the member-states cannot be infiueneed by measures withiq the administrative field. Whenever national law is in question, this will be subject to a decision of the legislative bodies. NATO, as an alliance of sovereign states, therefore, can only recommend that the member-states adapt their

4 See, w., Agreement Between the Partipa to the North Atlantic Treaty Regarding the Status of Their Foreea, dune 18, 1851 [I8531 4 U.S.T.

&

O.I.A. 1782, T.I.A.S. No. 2846, 188 U.N.T.S. 667; and Agreement on the Statui of the North Atlantic Treaty Organization, National Reprenentativea, and Internatimd Staff, September 20, 1851 [I9541 5 U.S.T. & O.I.A.

1087,

T.I.A.S. No. 2892, 200 UN.T.S. S.

See North Atlantic Treaty, supra note 1, arta. 1, 12, where erpreaa reference is mads to the P Y I P D S ~ ~ end p~meiples of the United Nations.e A STANAG is a written wreement concerning the idoption of similar miiitary equipment, emmunition, or supplies (material standardization), an well 8.3 the adontion of simila~ ooeratmnal. lodstic. end sdminiatrative

LAWS OF WAR WITHIN NATO

national law to meet the exigencies of the treaty and the organization. For the military field in its narrow sense, these recommendations, as a rule, are prepared by the Military-Committee. Questions other than of a strictly military nature are dealt with by several Council Committees, Working-groups, and Planning-boards. Sa far, important work has been done in these agencies in planning for the possibility of war, especially in the field of "Civil Defense."' As all the decisions of the Military Committees as well a8 the decisions of the Council committees have to be unanimous, a member-state, as a rule, will only give consent where it is certain that the decision will not be contrary to the national law or that a necessary amendment of the national law will meet no difficulties. The present legal position of the Federal Republic of Germany is somewhat different, in that the "Three Powers" (The United States of America, The United Kingdom of Great Britain and Northern Ireland, and the French Republic), aecording to the "Convention of the Relations between the Three Powers and the Federal Republic of Germany,"' still retain certain powers and rights for the protection and security of their forces in case of emergency.s These powers and rights will be retained until German emergency legislation (Notstandsgesetzgebung) is introduced.

In spite of all the difficulties, the initial planning of NATO for the possibility of an armed conflict has to cover all the fields which are essential for the common defense against armed attack and for the support of the defense effort. In regard to armed defense, this will mean that in the narrower field of actual warfare, there is involved not only the problem o* common emploment of forces with their equipment an2 supplies but also the problems of the scope of integrationxYof NATO-forces and the common application of the rule of law. It is to be expected that integrated forces in Some area8 cannot be subjected to their respective national law, but will be required to be subjected to unified legal provisions. This will, of course-as will be further explained in greater detail"4epend largely on the nature and on the extent

9 By 1062, there had slreedy been set up B Committee on "Civil Organiza-tion in Time of War." Committees on "Civil Defenae" and on "Refugeesand Evacueea" commenced Fork in February, 1963, and a "Medical Cammittee" was set up in September, 1054. Since 1866 theae activities have been coordinated under the sup~wisim of B high level grovp d i e d the "Senior Civil Emergency Planning Committee?' A "Pimning Rasrd for Ocean Ship. ping" has aim been Bet up.

'May 28, 1962 [I9621 6 U.S.T. & O.I.A. 4261, T.I.A.S. No. 3426.

S Convention on Reistionn. mpva note 8, arts. 2, 6.

10 Integration means the subordination of forces of different mTerBim 11 See text accompanying note 40 infra.

Ntea under a unifled command.

100 (10'8 3

of the integration. Mast of these legal questions will be problem8 of only internal importance to the member-states and the alliance itself, but one field of the application of law within the NATO-forces has a considerable external effect and therefore has to be regarded as of special importance. This is the field of the laws of war.,* This complex of problems has-as far as could be ascertained-hardly been discussed at all and has remained unknown to a great eatent.li

It is the object of this study to point out the problem and tomake proposals for its solution. In part 11, therefore. the problem itself will be discussed. In part 111 it will be shown that the present laws of war are handled differently within the NATO-states. Finally, in part IV an attempt will be made to find a solution to the problem.

11, THE PROBLEM

At B superficial glance, the common application of the laws of war within the NATO-forces may not appear to be a problem at all, since this question could be solved on the basis of international law and could be answered alone by international law which is binding uniformly on all nations in case of war. Moreover, it could be argued that this problem, if it really exists. has been salved without major difficulties in many former alliances. However, in response to these arguments, it should be pointed out (1) that the codified law of conventions and treaties is only binding on those nations which have ratified the respective eonventians, (2) that the opinions of various countries on the laws of war are in wide dispute, and (3) that the close cooperation and integration of the NATO forces, in contrast to former alliances. has raised new problems with...