It has been recognized since earliest times that some restraints should be observed during armed conflict. Already in the Old Testament* there are instances of limitations set by God. Sun Tzu* maintained that in war one should attack the enemy armies, and that “the worst policy is to attack cities. Attack cities only when there is no alternative.” In ancient India it was considered that war should be conducted on a basis of equality between the opponents: “A car warrior should fight a car warrior. One on horse should fight one on horse. Elephant riders must fight with elephant riders, as one on foot fights a foot soldier.” According to Homer*, the ancient Greeks considered that the use of poison on weapons was forbidden by the gods; and among the city states, temples and priests and embassies could not be attacked. The Romans were more regular and disciplined soldiers than those of any other ancient nation. They did not, as a rule, lower themselves to indiscriminate massacre and unrestrained destruction.
By the seventh century some of these principles had spread to the Islamic world. The leading Islamic statement on the law of nations written in the ninth century to some extent reflects principles laid down in the Old Testament, with its ban on the killing of women, children, the old and the helpless. Moreover, a prisoner of war should not be killed, but he may be ransomed* or set free. But, prisoners might be killed if it were considered advantageous in conducting a war however, this would not be so if the prisoners converted to Islam.
By the Middle Ages the power of the Church was such that it was able to forbid Christian knights from using certain weapons as hateful to God. Thus, in 1139, the Second Lateran Council condemned the use of the crossbow and arc*, a view that matched the concept of chivalry* which regarded such weapons as disgraceful, since they could be used from a distance enabling a man to strike without the risk of himself being struck. In fact, the feudal knights were aware of what they knew as the “law of chivalry,” a customary code of chivalrous conduct that controlled their affairs and which was enforced by specially appointed arbitrators* or, in the case of England and France, by Courts of Chivalry. However, these limitations only covered those who shared the code of chivalry, such as knights of noble birth, and did not cover common soldiers.
It was not only through the military codes or the rules of chivalry that basic rules for the conduct of war were developing. During the Crusades*, religious hatred tended to lead to the total destruction of the enemy. However, by the twelfth century, the Knights of the Order of St. John had established a hospital in Jerusalem for the care of the sick as well as for injured soldiers. In 1552, French Commander François de Guise ordered the French army doctor Amboise Para to take care of the abandoned wounded soldiers of the enemy and to make arrangements for their transport back to their army.
The first international agreement aimed at limiting the conduct of armed conflict was drawn up at the end of Crimean War in 1856. In terms of its contents, a more important agreement was the Geneva Convention* of 1864 for the proper treatment of the wounded in armies in the field, signed only a year after the founding conference of the Red Cross. The 1864 Convention was revised by the latter Geneva Conventions of 1906, 1929 and 1949. The contents of the Geneva Conventions include the protection of the sick and the wounded in the field, prisoners of war, as well as the civilian population. However, the Geneva Conventions, collectively known as the Geneva Law, are related to the humanitarian treatment of people, soldiers and civilians, even in the midst of armed conflict.
In contrast to the Geneva Law is the law concerning the means and methods of conducting actual military operations in armed conflict. This is generally known as the Hague Law. The Hague Law has evolved mainly through the disarmament conferences, which were held at the invitation of Russian Emperor in 1899 and 1907. In 1899, 26 countries met at The Hague and adopted Conventions concerning the ban of gas weapons as well as certain methods of military operations such as attacking civilian population and denial of quarter*.
At the time of the Hague Conferences both in 1899 and 1907, it was not understood that aerial warfare might be of major significance. However, the role played by aircraft during World War I made it clear that some rules were necessary to regulate aerial conflict. As a result, a commission of legal experts met at The Hague in 1922 to agree on the Rules of Air Warfare. These rules were never put into any international treaty and are, as such, not legally binding. To be a legally binding international law, the agreement between countries has to be in a form of a treaty signed and approved by representatives of these countries. Alternatively, there is international customary law, which is not a written treaty but an unwritten law made of generally accepted state practices around the world. Any other rule is just a political declaration or a moral recommendation although it may sometimes be influential and widely supported by peoples around the world.
So how does the ambiguity of international customary law affect a contemporary issue of the laws of war such as nuclear weapons? What is the legal status of nuclear weapons? Are they prohibited or not? There are treaties regulating the use of particular weapons such as biological and chemical weapons, but as yet there is no established law concerning the use of nuclear weapons, though there are treaties directed against the testing of such weapons and limiting the number of such weapons. Consequently, there are various legal opinions on this issue.
During World War II, it became clear that the Laws of Geneva and Hague as they existed were inadequate in relation to the new methods of conducting war that widely involved civilian populations, and to the newly invented weapons such as the atomic bomb. Therefore, the rules of armed conflict did not correspond to the new methods of modern war. Nevertheless, if a case were brought before a court, the legality of such new methods of war had to be evaluated based on the existing law. In 1963, in an opinion on the use of atomic bombs in Hiroshima and Nagasaki, the District Court of Tokyo held that even though the rules of Air Warfare were not written in a treaty they had become international customary law by the start of the World War II, and the indiscriminate aerial bombardment on an undefended city was perceived to be contrary to the rules of international customary law.
Another opinion was offered by the International Court of Justice (ICJ). In 1996, unanimously held that “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4 of the United Nations Charter* and that fails to meet all the requirements of Article 51 [relating to self-defense], is unlawful.” Nevertheless, it went on to hold that in the current state of international law, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.
In general, in the absence of any specific treaty or international customary law relating to a particular weapon and restricting or controlling its use, the employment of such weapons is subject to the general rules of the law of armed conflict. The question of the legality of such weapons should be decided in accordance with those rules, particularly those concerning unnecessary suffering and proportionality. In view of the effects of a nuclear explosion, the long-term nature of its radioactive fallout, and the existence of treaties banning the use of poison or other biological weapons, it might be expected that nuclear weapons would fall under the ban on those weapons causing unnecessary suffering and adversely affecting the environment. However, some schools of international lawyers hold that war employing nuclear weapons to prevent new nuclear powers from emerging would be reasonable in some circumstances.
The debate over the legal status of nuclear weapons continues to dominate contemporary international politics. The inability of international conferences to come up with an agreed resolution on the rules of conflict and disarmament has led in recent years to a growing grassroots movement on the part of war-weary populations. More and more, the frontline work of disarmament and weapons control has been carried out by NGOs around the world. Whether successful or not, these organizations have been crucial in bringing the issue of peace to world attention, and making the issue of arms control part of an international public debate.
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