The Freedom of Civilians of Enemy Nationality to Depart From Territory Controlled by a Hostile Belligerent

• Author: by Dr. Walter L. Williams. Jr
• Pages: 06

I. INTRODUCTION

The progressive development of international law pertaining to protection of civilians in armed conflict continues to be a matter of signficant interest to military lawyers and legal scholars. This arti-cle addresses an important aspect of that subject, the freedom of civilians of enemy nationaliiy to deparr from territorycontrolled bya hostile beiligerent. Neither dipiomatie discourse nor legal literature has focused on this topic in recent times. However, terminating hostile belligerent control over civilians ai the earliest practicable time has always been highly relevant to the humanitarian objectiveof protecting civilians in time of war. This is increasingly so in the cantextof modernarmedconflict.Indealingwiththisquiteeubstan-tial topic. this article assuredly does not present a full appraisal of the many questions involved. The discussion offers an impressionistic. exploratory inquiry only into certain issues and encourages future dialogue and contribution in developing definitive analysis useful both for governmental advisors and legal scholars. In keeping with theaimsofthelaivpertainingtoprotectionofciviliansInarmedconflict, theobservational perspective 1s that of a citizen of the world community recommending to decision-makers policies reflecting community aspirations and appropriate rules calculated io more effectively implement those policies.

'The opinion^ and conclusions exprensed hemn are those of the author and da not necessarily rewesent the vlem of The Judxe Advocate General's School. the De~srr-

The methodolog?' underlying this presentation emphasizes three aspects. The first IS a requirement for comprehensire factual analy%is of any particular instance of armed conflict. This analysis is contextual. viewing that conflict within the context of the existing global process of power in which states interact by various strategies to secure and maintain effective power positions in their relations. The second aspect IS trend analysis of the course of legal decision concerningtherightof civiliansofenemynationality todepart from territory contralled by a hostile belligerent. This is an analysis that. as regards past trends. properly considers the presenc and future effects of new conditions pertinent to the conduct of modern armed conflicts The third aspect 1s a policy-oriented analysis of trends of legal decision. an appraisal of trends in light of advocated \world community policies seeking the maximum protection of enemy civ-ilians in modern armed conflicts. It 1s suggested that only through such a methodology may one expect accurately to determine the present developments in the rules pertaining to the freedom of movement of enemy civilian3, to project those debelapments into the future. and to appraise the consequences of those developments.

11. THE CONTEXT OF MODERN ARMED CONFLICT INCREASED RISKS TO ENEMY CIVILIANS A. INCREASING RESORT TO ARMED FORCEIn addressing the subject of the freedom of enemr civilians to

depart from territory controlled by a hostile belligerent. the first proposition is that, unfortunately. the foreseeable trend in mternational relations suggests that armed conflict situations placing civ-ilians in grave risk will occur with increasing frequency. The trend over the last twenty years has been one of steady emion of legal constraints an the use ai armed force in International relations. Increasingly, prohibitions embodied in the United Nations Charter. other conventions, and customary international law receive lip s e w ice or are ignored. United Satians Security Council decisions and orders rendered under supposedly controlling authonty of Chapter

The Leea1 Regularionof International Caerciar (19611 European readers will flnd a direusrim in IleDowrl liif~rnofionrcl Lax ?oii.er and ?ol,cy 1 Cmfrcpo,rcrj Cnncrp+,on. dZ Hague Recuell der Cauri 137 (1963)

Sevenofthe Charterfrequentlyareviewed, at best, asrecommendatians or else are simply disregarded or even derided by some states. Despite the lessons of two world wars and bloody regional and binational struggles of this century. many states today seem bent on "national tribalism", enthusastically bashing their neighbors with modern "war clubs" of sophisticated weaponry. To paraphrase the Irish poet Yeats, the"center"simply isnot holding. Tocharteven the moresalient paint softhis trendor to analyze the variousexplanatory factors is beyond the scope of this discussion. It is merely noted that this increasing trend to resort to uniiateral use of armed force for both aggressive and defensive objectives occurs in the context of continued absence throughout the world community of the will to establish strongglobal and regional community agencies possessing the authority and the means to deter or to terminate impermissible uses of armed force in international relations. The bloody war between Iran and Iraq, the "serial" conflicts in Arab-Israeli relations, tragically evidenced recently in Lebanon, the spreading pattern of transbarder violence in Central America, the recent Argentine-British conflict over the Falklands, and the continuing Soviet violence in Afghanistan are merely more notorious instances of this trend. This is already a bleak picture, but it is suggested that this IS merely the early stage of a still more precipitous descent of much of the world down the deadly slope of death and destruction resulting from modern armed conflict.

Consequently. the increasing number of instances of armed conflict necessarily will subject great numbers of civilians to risks of death, injury, and other deprivations. Thus, the maximum deveiopment of and adherence to the rules of armed conflict pertaining to protection of civilians, including the principle of freedom of enemy civilians to depart from territory controlled by a hostile belligerent, become every more compelling.

2. SPECIFIC ADVERSE FACTORS IN MODERN ARMED CONFLICTS

   Concurrently, as the tragic increase in international armed canflict brings grave risks to larger numbers of civilians, certain features of present and future conflicts Suggest that the intensity of those risks likewise will increase. Briefly and with primary focus an enemy civilians present in territory controlled by a hostile belligerent. some of those adverse factors will be discussed

   I. Dewlopmrnt or Modern Weaporiru and the Problem qi2lowinerit IVifhiri Territory Coxtrolled by a Hostile Beil$errn! a. Deteiopmenf in Nodwn Weaponry

   One important factor is the dynamic developments in military weaponry. With the enormously increased destructive range and speed of modern weapon systems, the risks to civilians ~n or in the proximity of target areas have increased enormously. Even if sufficient time exists to reiocate civilians, and time often wii1 be Insufficient, the security of rear areas of combat zone3 or ather locations may be mast 11Iusor.y. The fluidity of modern combat and the consequenceaafhumanormechanicaierror inuseof,~,~aponsystemjmay substantiaiiy endanger civilians relocated to supposedly safer areas. Especially for smaller states, the entirety of national territory may constitute one iarge combat zone.

   2. .Mawment ll'ithui Twntory Controlled bU a Hosttie Be!!igerrnt

      With this expectation that civilians wiil encounter increasing difficulty in avoiding damage from modern military weaponry. the extent to which the humanitarian law of armed conflict requires hostile beliigerents to relocate enemy civilians to safer areas or to permit them to move to safer areas should be examined. In appraisingthe situation of enemy civilians present in terntor)- controlled by a hostile belligerent, tmo categories are considered: those mho are in the hostile belligerent's oivn territory and those in territory occupied by the hostile beiligerent. As regards the first group, the 1949 Genera Convention Relative to the Protection of Civilian Persons in Time of Rare ("Civilian Canvention") presently offers meager legal protection from exposure to modern weaponry. If a hostile beiligerenthasrefusedtopermit enemycivilianstodepartfromIts territory. the Cirilian Convention does not require the Detaining Power to relocate those civilians to a particularly safe location. .4s regards interneea. enemy ciwiians held under close custody of the Detaining Power. the duty of the Detaining Power is merely to aroid the piacement internment camps in areas "par!ieii!arl!i mposrd to the dangersof war."3 Thedifference between thenegativedutynottaset up an internment camp in close proximity to a military target and the affirmative duty ropiace internees in a particularly safe iocatlon, such as many miles from the anticipated zone of conflict. is seif-evident. As regards enemyciviiians not interned but still not allowed to depart from the beliigerent's territory. the Ci~ilian Convention

      provides no duty of safe location whatsoever beyond "national treatment." If enemycivilians reside in an area ''particularly exposed" to thedangersofwar,theyhavetherighttomoveframthatarea"tathesame extent as the nationals of the States concerned."? Thus, if the hostile belligerent prevents its own nationals from moying, enemy civilians have no right to moye. Although not free to depart the belligerent's territory if they wish, enemy civilians can be forced to accept exactly the...