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 THE PROBLEM OF THE REVISION OF THE
LAW OF WAR'
By H. LAUTERPACHT, Q.C., LL.D., F.B.A.
IIlhewell Professor of InternationalLaw in the University of Cambridge

ON 2o April 1949 the International Law Commission decided, for various

reasons,' not to include the law of war in the list of topics which it selected
for study in pursuance of its tasks of codifying and developing inter-
national law. Yet it is significant that on 21 April-the very next day-
there opened at Geneva a Conference of sixty-one states which on 12
August adopted four Conventions3 revising, developing, and codifying a
very substantial part of the law of war-a historic and in many ways almost
a revolutionary piece of international legislation transcending in some
respects the achievements of the two Hague Conferences. One of these
Conventions deals with the relief of wounded and sick in armies in the
field. Another is devoted to the amelioration of the condition of wounded,
sick, and shipwrecked members of armed forces at sea. The third is an
imposing codification of the law relating to the treatment of prisoners of
var. While these three Conventions merely revise and expand-though
on a very considerable scale-treaties already in existence, the fourth Con-
vention, namely, that for the Protection of Civilians in Time of War,
covers in many respects entirely new ground not touched by the Hague
Conventions. Thus, for instance, although the Regulations attached to
Hague Convention No. IV respecting the laws and customs of war on land
protected the civilian population in occupied territory, they did so, in
Articles 42-56, in somewhat general outline. They did not concern them-
selves directly with the position of civilian enemy nationals in belligerent
territory.4 The Geneva Protection of Civilians Convention of I9 4 9-which
' The present article is based substantially on a lecture delivered in December 1952 in the
Faculty of Laws of the University of Paris.
I Thus Professor Scelle expressed the view, on that occasion, that as the Charter of the United
Nations had outlawed war there could no longer be any question of a law of war-although, in
his opinion, there was room for regulation of hostilities waged by an international police force.
The member from Soviet Russia urged that the Commission should categorically refuse to dis-
cuss war; that it should not even contemplatc the possibility of a third world war; and that it
should not transform itself into a legal general staff which would pursue its activities in concert
with the general staff of the North Atlantic Treaty Organization: Doc. A/CN. 4/SR. 6, pp. 12,
14, respectively.
3 Misc. No. 4 (1950) Cmd. 8033; United Nations Treaty Series, vol. 75.
4 It was contended by some governments and writers that Article 2 3 (h) of the Hague Regula-
tions, which forbade a belligerent 'to declare abolished, suspended, or inadmissible in a court of
law the rights and actions of the nationals of the hostile party', applied also to the territories of
the belligerents as distinguished from the territories occupied by them. This contention was
probably inaccurate. See Oppenheim, InternationalLaw, vol. i (7th ed., I948), § 554 (1 0).
 THE REVISION OF THE LAW OF WAR 361
will be here referred to as the Civilians Convention-goes a long way
towards filling these gaps. In addition to its main provisions formulated
in seventy-eight Articles, it has enacted in a further sixty-two Articles
detailed regulations concerning the treatment of interned persons both in
occupied and in national territory.
The changes introduced by these Conventions go beyond a mere exten-
sion of the categories of protected persons. With a stroke of the pen the
Civilians Convention abolished reprisals against the civilian population
and its property., The numerous decisions given by the various war crimes
tribunals on the legitimacy and the limits of such reprisals-interesting and
valuable as they are-merely clarify what, once that Convention is widely
ratified, will become a relic of the past. In a single Articlez consisting of six
words that Convention did away with such. customary rules as existed in
the matter of taking hostages in occupied territory and elsewhere. When the
Convention becomes generally accepted law there will no longer be occa-
sion for discussion whether hostages may be killed, or put on locomotives
to ensure the safety of trains, or merely imprisoned. The Convention pro-
tects not only some elementary rights of the individual-his life, honour,
family rights, and religious convictions-but also, within the limited scope
of its provisions, the no less fundamental right to non-discrimination on
account of race, religion, or political opinion.3 In stating expressly and
repeatedly4 that the inhabitants of occupied territory owe no duty of
allegiance to the occupant, it rejects the contradictory and objectionable
conception of so-called war treason, on the part of inhabitants of occupied
territory, which is punishable as a war crime., The Convention imposes
certain minimum obligations of humane treatment even in armed conflicts
which are not of an international character and even if the parties to the
conflict, which may not be states, are not parties to the Convention 6-an
interesting example of obligations being imposed upon entities which are
not normally subjects of international law.7 While the Hague Regulations
did not contain a single article relating to judicial criminal proceedings
The right of the occupant to resort to reprisals and collective punishments against inhabitants
of occupied territory was recognized, somewhat circuitously, in Article 50 of the Hague Regula-
tions, which provided as follows: 'No general penalty, pecuniary or otherwise, can be inflicted
on the population on account of acts of individuals for which it cannot be regarded as collectively
responsible.' On the other hand, the Civilians Convention of 1949 provides in Article 33, which
applies both within the territories of the belligerent and in occupied territory, that 'no protected
person [i.e., protected by the Convention] may be punished for an offence he or she has not
personally committed'; that 'collective penalties . . . are prohibited'; and that 'reprisals against
protected persons and their property are prohibited'.
z Article 34. 1 Article 27. 4 Articles 67 and 68.
5 See the passage in vol. ii of the 7th ed. (1952) of Oppenheim's InternationalLaw, p. 426,
amending the text of previous editions. 6 Article 3.
7 Similarly, Article i8 (2) of the Sick and Wounded Convention seems to address itself to
individuals. It lays down that 'the civilian population shall respect these wounded and sick, and
in particular abstain from offering them violence'.
362 THE REVISION OF THE LAW OF WAR
against inhabitants of occupied territory, the Civilians Convention devotes
fifteen elaborate Articles both to procedural safeguards: and to the sub-
stantive law on the subject. With regard to the latter the Convention
includes a remarkable provision which imposes obligations upon courts,
as distinguished from the Contracting Parties, to apply certain principles-
apparently in disregard, if necessary, of any law enacted by the occupant.
Thus it is laid down that the courts 'shall apply only those provisions of
law which were applicable prior to the offence, and which are in accordance
with general principles of law'.' In fact it might be said that this, in its
limited sphere, is a veritable universal declaration of human rights; unlike
the Declaration adopted by the General Assembly in December 1948, it is
an instrument laying down legal rights and obligations as distinguished
from a mere pronouncement of moral. principles and ideal standards of
conduct.
No account can be here attempted of the comprehensive changes and
innovations introduced by the other three Conventions, especially that
relating to the protection of prisoners of war. But reference may be made
to some of the significant provisions bearing upon the application and
enforcement of these Conventions. Thus the Parties to these Conventions
must observe them not only in respect of the states which have ratified
them or acceded to them but also in relation to belligerents who, without
prior ratification or accession, after the outbreak of the conflict accept and
apply their provisions. The general participation clause is expressly aban-
doned. Thus all four Conventions lay down that the states which are
parties to them shall remain bound by these Conventions in their mutual
relations even if one of the parties to the conflict is not a Party to the
Convention. Moreover, while any state bound by the Convention is entitled
to denounce it, such denunciation if made during a conflict does not take
effect until peace has been concluded. Although the authors of the Conven-
tions did not accept the wording of the more stringent plans put before them
with regard to violations of the Conventions-such violations are not ex-
pressly described in the Conventions as war crimes-they accepted most
of their substance. All Parties to the Conventions, whether belligerents or
neutrals, are bound to seek out persons alleged to have committed grave
breaches of the Conventions and to bring them for trial before their courts,
regardless of the nationality of the accused. 2 No more emphatic affirmation
of the principle of universality of jurisdiction with regard to the punishment
of war crimes could be desired.
The preceding pages elaborate at some length the theme of the importance
of these Conventions, and of the innovations which they introduce, for the
Article 67.
See, e.g., Articles 129 and 130 of the Prisoners of War Convention.
 THE REVISION OF THE'LAW OF WAR 363
reason that-surprising as this may seem at first sight-they probably
cover as much as two-thirds of the traditional law of war (as distinguished
from the law of neutrality). It is useful-in fact it is one of the purposes of
the present article-to draw attention to this result of the Geneva Con-
ventions of 1949. For there may be a tendency, when we speak of the neces-
sity for the revision of the law of war, to leave out of account the fact that
these four Conventions have already revised a very substantial part of the
law of war, and that they have not only revised it but have also expanded
it in many respects out of all recognition.'
II
The significance of the achievement of the Geneva Conventions of 1949
is not in any way diminished by the fact that the part of the law of war
which they cover is of a humanitarian character. For, although we may not
always realize it, this is the main feature of practically all the rules of war-
fare covered by the Hague Regulations. A possible-though by no means
obvious-exception may be found in such matters as spies, ruses of war,
treatment of public enemy property and the somewhat procedural rules
relating to non-hostile intercourse of belligerents, e.g. armistices, capitula-
tions, and flags of truce. But even in these instances the humanitarian pur-
pose of the rules in question is not altogether absent in so far, for example,
as they aim at facilitating the care of wounded and the collection of the
dead, at rendering possible a semblance of peaceful contact between the
belligerents, and at bringing about the cessation of hostilities. Neither is
the humanitarian purpose absent from the rules relating to the treatment
of private enemy property and to devastation. For property is not merely
an economic asset; it may be a means of livelihood. The same humani-
tarian purpose is also the governing factor in relation to most aspects of the
regulation of the law of sea warfare, such as the restriction of the right of
capture of small fishing craft, of postal correspondence, and of vessels
engaged in charitable or scientific missions, or the rules which seek to
restrict bombardment from the sea, or those intended to safeguard the
lives of passengers and crews of merchant vessels. This is also essentially
the character of those laws of war-such as the prohibition of dum-dum
bullets, of weapons causing unnecessary suffering and rendering death
inevitable, and of poisonous and asphyxiating gases-which consist in the
limitation of the freedom of the belligerents in the choice of weapons and
instruments of war. We shall utterly fail to understand the true character
of the law of war unless we realize that its purpose is almost entirely
I See, e.g., the article by Dr. Kunz entitled 'The Chaotic Status of the Laws of War and
the Urgent Necessity for their Revision', in American Journalof InternationalLaw, 45 (195 I),
pp. 37-61. See also Downey in Proceedingsof the American Society of InternationalLaw (1949),
pp. xoz-8.
364 THE REVISION OF THE LAW OF WAR
humanitarian in the literal sense of the word, namely, to prevent or mitigate
suffering and, in some cases, to rescue life from the savagery of battle and
passion. This, and not the regulation and direction of hostilities, is its
essential purpose., Rules of warfare are not primarily rules governing the
technicalities and artifices of a game. They have evolved or have been
expressly enacted for the protection of actual or potential victims of war.
Accordingly, such a statement as 'the new Geneva Conventions of August
12, 1949, deal only with the protection of the victims of war' z would appear
to show less than full appreciation of the realities of the legal situation.
In fact, it is probable that the rules of warfare as applied in the First and
Second World Wars cannot be related to any overriding legal principle or
principles other than those which are of a humanitarian origin or com-
plexion. In any event, apart from them, there are probably at present no
overriding, universally or generally agreed, juridical principles of the law
of war. Consider, for example, what some have regarded in the past as the
most fundamental principle of the law of war, namely, the distinction
between combatants and civilians, a distinction based in turn on the pro-
position, put forward by Portalis and some other continental writers, that
war is a contest between state and state only and between the armed forces
of the belligerents. This view was not shared in the United States, in
England, or in some other countries. In any case, whatever may have been
the original merits of that distinction, the phenomenon of total war has
reduced it, in most respects, to a hollow phrase. The growth of the numbers
of combatants forming part of the armed forces of the belligerents; the in-
crease in the number of non-combatants engaged in work of direct military
importance, coupled with the growing obliteration of the distinction between
work which is and work which is not of direct military importance; the
growth of the offensive and destructive power of aircraft; the part played
in modern war by the economic weapon, which renders practically im-
possible, in this respect, a differentiation between civilians and combatants
-all these factors have combined to render unreal the traditional contro-
versy as to who are the subjects of the relation of war. Moreover, in so far
as the 'continental' doctrine implied that the laws of war are binding not
upon individual human beings but only upon the metaphysical entity of the
state, that doctrine must be regarded as a relic of the past.
There is only one principle in this sphere which has remained un-
challenged by civilized states and which must remain undisputed as a
The Preamble to the Hague Convention of 1907 respecting the Laws and Customs of War
on Land refers, in the first place, to the desire of the Contracting Parties to serve, even in the
extreme case of war, 'the interests of humanity and the ever progressive needs of civilization'.
In the same Preamble it is stated that in matters not expressly provided for by the Convention
the inhabitants and belligerents remain under the protection of the principles of international
law 'as they result from the usages established among civilized peoples, from the laws of humanity,
and the dictates of public conscience'. 2 Kunz, loc. cit., p. 59.
 THE REVISION OF THE LAW OF WAR 365
dictate both of law and of humanity. That unchallenged principle is
embodied in the rule that non-combatants, whether in occupied territory
or elsewhere, must not be made the object of attack unrelated to military
operations and directed exclusively against them. At the same time it is
controversial, at least practice has made it controversial, whether the
civilian population as such is entitled to protection, i.e. whether the
belligerent is bound to desist from attacking, for the reason that they con-
tain or are in the vicinity of a considerable number of civilians, objects whose
destruction he considers to be of importance for the success of a single
operation or of the strategy of the war as a whole. In the matter of aerial
bombardment the practice of belligerents has not followed any such prin-
ciple-although at the beginning of the Second World War it seemed to have
received a measure of recognition by both sides. Explicit, though qualified,
declarations were made to that effect in September 1939 by the govern-
ments of the United Kingdom and France as well as by the government of
Germany. The former issued a declaration proclaiming their intention to
conduct hostilities with a firm desire to spare the civilian population by
confining aerial bombardment to 'strictly military objectives in the nar-
rowest sense of the word'. As the war progressed, the protection of the
civilian population from aerial bombardment became largely nominal.
That result was not due merely to the reciprocal adoption of the practice
of reprisals. It was due to the general acceptance of a notion of military
objective capable of an enlargement so vast as to lose in fact any legally
relevant content. In the end both governments' and writers of recognized
authority on the subject were prepared to admit-and to fortify their con-
clusion by argument-the legality of both strategic and tactical bombing of
centres of civilian population.2
Yet, it is submitted, it may be unprofitable to inquire whether the prac-
tice of aerial bombardment in the form and to the extent which it assumed
at the end of the Second World War was in accordance with international
law. Those who maintain that it violated international law must undertake
the exacting task of proving that absolute respect for the life of the enemy
civilian is a rule so fundamental, so overriding, and so uncontroversial as
to render immune from direct military attack objects and localities whose
destruction the belligerent considers vital for his purpose. The fact is that
in the matter of aerial bombardment there is no rule firmly grounded in
the past on which we can place reliance-for aerial bombardment is a new
I On 9 February 1944 Lord Cranbome declared in the House of Lords, on behalf of the
British Government, as follows: 'It may well be . . . that these great German war industries
can only be paralysed by bringing the whole life of the cities in which they are situated to a
standstill, making it quite impossible for the workmen to carry on their work.... It is, I suggest,
a full justification for our present bombing campaign': House of Lords Deb., vol. 130, col. 753.
2 See Spaight, 'Legitimate Objectives in Air Warfare', in this Year Book, 21 (1944), PP.
158-64, and Air Poer and War Rights (3rd ed., I947), pp. 267-73.
366 THE REVISION OF THE LAW OF WAR
weapon which raises new problems. With regard to new weapons generally,
past experience merely suggests that, although belligerents have often
yielded to considerations of humanity and chivalry in matters which did
not affect the supreme purpose of the war, they have refused to follow them
when they threatened to assume the complexion of a decisive limitation of
their freedom of action bent upon achieving victory.
To assert, therefore, that the practice of aerial bombardment as it was
resorted to by both sides during the Second World War was according to
international law illegal-which, in the circumstances, would mean that
it constituted a war crime'-is to assume a legal rule based on the doctrine
that the law of war provides for the absolute protection of the civilian
population (as distinguished from the protection of civilians against attack
directed individually or exclusively against them) and that such protection
remains in its full legal vigour in an age of total warfare and the perfection
both of aircraft and of ground and other defences against aerial attack. Yet
is it not probable that we are here in the presence of what is no more than
a postulate? Article 25 of the Regulations attached to Hague Convention
No. IV prohibited 'attack or bombardment, by whatever means, of towns,
villages, habitations, or buildings, which are not defended'. The expression
'by whatever means' included presumably bombardment from the air. But
it is doubtful whether bombardment from the air was, at the Second
Hague Conference, in the minds of the authors of the revised Convention.
In essence the prohibition of bombarding undefended localities gave ex-
pression at that time-when the range of artillery was limited-to the law
of conservation of military energy, seeing that a locality which was not
defended was, as a rule, open to occupation by the belligerent and that to
bombard it meant to waste effort and ammunition.2 From this point of
view there are no undefended places in relation to air warfare, in particular
when a locality is provided with anti-aircraft defences. With regard to
defended places, while some inadequate provision was made for sparing
buildings devoted to art, charity, religion, and science, and historic monu-
mentsI writers and military manuals expressed the view, fully substantiated
by practice, that 'destruction of private and public buildings through bom-
bardment has always been and is lawful, as it is one of the means of
impressing upon the authorities the advisability of surrender'. 4
Hague Convention No. IX of 1907 relating to naval bombardment, in
It is of interest to note that Article 6 (b) of the Charter of the International Military Tribunal,
which defined war crimes submitted to the jurisdiction of the Tribunal, did not refer directly to
aerial bombardment-although it is probable that such reference was intended by the words
'wanton destruction of cities, towns or villages'. No conviction was recorded against any of the
accused in connexion with a charge of indiscriminate bombing of the civilian population.
' See the Consultation of M. W. Royse in La Protectiondes populationsciviles contreles bombarde-
ments, consultationsjuridiques (Geneva, 19Zo), p. 88.
I Article 27. 4 See British Manual of Military Law, paragraph 122.
 THE REVISION OF THE LAW OF WAR 367
addition to permitting bombardment in case of non-compliance with a
legitimate request for requisitions, abandoned to a large extent the test of
'defence' and substituted for it that of the presence of military objectives.
These could be bombarded regardless of the presence of civilian popula-
tion-though the Convention imposed a semblance of safeguards in the
matter of previous notice and of certain categories of buildings. The Hague
Rules of Aerial Warfare of 1923 relating to aerial bombardment were based
on the test of military objective and its location. If situated within the zone
of military operations-a term of some elasticity-military objectives could
be bombarded regardless of the presence of large numbers of civilians. The
category of military objective, it will be noted, was so widely drawn as to
make most centres of population liable to aerial attack. It included, for
instance, 'lines of communication or transportation used for military pur-
poses'. In areas outside military operations the bombardment of military
objectives was prohibited if it involved indiscriminate harm to the civilian
population. That prohibition was based on the assumption that bombard-
ment from the air, in face of powerful anti-aircraft defences and having
regard to the unavoidable large margin of error in aiming and to the radius
of the effect of the blast even in the absence of error, can be discriminatory.
It assumed-incorrectly, as events proved-that governments would accept
or act upon a rule which would make it possible for the belligerent to
gain immunity for objectives of the highest military value by resorting
to the device of placing them in centres of population outside the zone of
military operations.
The Hague Rules were not ratified and were not acted upon during the
Second World War-or after it. They were based on the principle formu-
lated by John Bassett Moore, when introducing the American proposals,
in the following orthodox wording: 'Among the elementary principles
which the development of modern rules of warfare, running through
several centuries, has been designed to establish and to confirm, the
principle most fundamental in character, the observance of which the
detailed regulations have largely been designed to assure, is the distinction
between combatants and non-combatants, and the protection of non-
combatants against injuries not incidental to military operations against
combatants." It may or may not be relevant to inquire whether this was
the principle underlying the practice of the belligerents, including that of
the United States, during the Second World War. It is more relevant to
recall that that practice has not been stigmatized by any considerable body
of opinion as unlawful and criminal. It must be a matter for serious reflec-
tion-and an appeal to such reflection is one of the objects of the present
article-whether the authority of international law and the prospects of any
' The Collected Papers of John Bassett Moore, vol. vi (1944), P. 153.
368 THE REVISION OF THE LAW OF WAR
effective future regulation of this and similar vital questions might not be
better served by the acknowledgement that the rule as formulated in 1923
by Moore did not even at that time, and does not at present, form part of
generally recognized international law.'
There is one principle bearing on the subject under discussion which was
embodied in the Hague Rules of 1923 and the essential correctness of
which seems unimpeachable, namely, that it is unlawful to resort to bomb-
ing of the civilian population for the mere purpose of terrorization. For in
this case the civilian population becomes the direct object of attack regard-
less of any connexion with a military objective. Admittedly, the practical
importance of that exception is of limited value. In most cases centres of
civilian population will in any case constitute centres of communication or
contain or be located in the vicinity of some objectives which the attacking
belligerent will claim to be of military importance. In these cases the
terrorization of the civilian population, however real in intention and effect,
can plausibly be represented as being incidental to attack upon military
objectivesz Moreover, terrorization of the civilian population as a whole,
independently of military objectives, and aiming at producing utter chaos,
disorganization, and eventual rebellion as a means of defeating the enemy,
has occasionally been represented as constituting in itself a legitimate
military purpose. It is not necessary to dwell here upon these anarchic
emanations of the doctrine of total war. It may be difficult to refute them
with the help of mere logic. They may not be altogether alien to the
practice-though not the avowed principle-of strategic bombing which is,
at least in theory, directed against military objectives, however widely
I When in 1930 the International Committee of the Red Cross asked a number of lawyers and
military experts whether it was possible to formulate precisely rules of international law pro-
tecting the civilian population outside the area of artillery fire against bombardment of any sort
or to render these rules more effectual, Jonkheer van Eysinga in giving a negative reply to that
question described it as a task both positive and highly beneficial to humanity to make public
opinion aware of the fact that the protection of the civilian population against aerial attack is
not realizable in practice (La Protection des populations civiles contre les bombardements. Consulta-
tions juridiques (1930), p. 221). This was also the view of some technical and military experts.
Yet it is probable that, so far as the formulation of a legal rule is concerned, an affirmative answer
to the question as put could have been given with little or no hesitation. For it is possible to
formulate precise rules of international law which would give the desired protection. It is possible,
for instance, to go much farther than the Hague Rules of 1923 and to lay down the precise rule
that no centres of population may be bombarded outside a fifty mile radius of the actual front
line regardless of the existence of military objectives. This would solve the problem-if govern-
ments were willing to accept that solution. The same applies-though with much greater tech-
nical difficulty-to selecting specific and rigidly limited purely military objectives which may
o
be bombed outside the area of operations. But the very question put in 193 by the International
Committee of the Red Cross implied that already at that time the state of international law on
the subject was doubtful.
' This, for instance, was the assertion put forward by Germany in regard to the aerial bombard-
ment of Warsaw on 23 September 1939 and of Rotterdam on 14 May 1940. No such assertion,
apparently, was made in connexion with the destruction on 6 April 1941 of the larger part of
Belgrade in 'operation Punishment' (as named by the German High Command), follow, ing upon
the refusal of Yugoslavia to become an ally of Germany.
 THE REVISION OF THE LAW OF WAR 369
conceived. Nevertheless 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 licence and depravity of force. If stark
terror and panic dissolving all bonds of organized life are an object at which
the belligerent can legitimately aim, there is no reason why he should stop
short of murdering the inhabitants of occupied territory-for such action is
certain to create terror both in the occupied territory and in territory
which he threatens to occupy. Nor is there any reason why any isolated
hamlet or peaceful township should not be harassed, attacked, and obliter-
ated-for that is clearly calculated to put the entire population of the
territory of the adversary in a state of disorganizing fear. It is clear that
admission of a right to resort to the creation of terror among the civilian
population as being a legitimate object per se would inevitably mean the
actual and formal end of the law of warfare. For that reason, so long as the
assumption is allowed to subsist that there is a law of war, the prohibition of
the weapon of terror not incidental to lawful operations must be regarded as
an absolute rule of law.
III
If the legal position with regard to aerial bombardment is unhappily such
as is described above, then the principal considerations there adduced are
also relevant to the question of the legality of the use of the atomic weapon.
It has been maintained by a high authority on the subject that while the
bombing of the civilian population, when incidental to attack upon legiti-
mate military objectives, however widely conceived, may still be within the
borderline of legality inasmuch as it permits of some rough differentiation,
this is not so with regard to the atomic weapon, the use of which must
therefore in all circumstances be regarded as unlawful.' The validity of the
distinction may be doubted. It has been rightly suggested that the havoc
wrought by a concentrated attack by a large number of aircraft may be as
vast and indiscriminate as that created by an atomic bomb. The distinction
has no more validity than that which, by reference to the probable radius
of devastation, considers resort to the atomic bomb to be legal as dis-
tinguished from the use of the hydrogen bomb. In the present state of the
law--or absence of law-the only non-controversial and legally relevant
reason for distinguishing between the atomic weapon and aerial bombard-
ment, apart from the absolute prohibition of mere terrorization, would be
that the use of the atomic weapon may be contrary to the conventional
rules of international law prohibiting the use of weapons which cause un-
necessary suffering or render death inevitable or which, because of the
Spaight, Aii Power and War Rights (3rd ed., 1947), PP. 273-7.
B3306 Bb
370 THE REVISION OF THE LAW OF WAR
resulting general contamination, in effect amount to a use of poisonous and
asphyxiating gases.' However, by comparison, these aspects of atomic war-
fare as well as the question of recourse to the atomic weapon against purely
military objectives such as battleships, armed formations, and military
installations distant from inhabited localities, constitute a secondary aspect
of the problem of atomic warfare as compared with the obliterating force
and destructiveness of its use in relation to the civilian population.
With regard to that major aspect of the problem we are thus driven to
the conclusion that the position may not be essentially different from that
with regard to aerial bombardment affecting the civilian population,
namely, that the question of its legality is not capable of a categorical
answer. If the answer is to be given in terms of existing law, it cannot be
given in an unqualified negative except, perhaps, in so far as the practical
impossibility of discrimination brings atomic warfare within the orbit of
the absolute prohibition of terrorization.
It would thus appear that the total elimination or limitation, as a matter
of law, of the use of the atomic weapon cannot be accomplished by way of
a restatement of an existing rule of law. Such a restatement denying the
legality of the use of the atomic weapon must, of necessity, be based on
controversial deductions from supposedly fundamental principles estab-
lished in conditions vastly different from those obtaining in modern-total
and scientific-warfare. Such a restatementwould be bound to ignore, or
brand as illegal and criminal, recent practice as generally followed. In fact,
it is submitted that it must be a matter for serious consideration by govern-
ments or by bodies such as the International Committee of the Red Cross,
which may deem it their duty to promote acceptance of the prohibition of
the use of the atomic weapon, whether it is necessary for this purpose to
insist that its use either in general or in so far as it affects indirectly the
civilian population is already illegal. If that were so, an express prohibition
would be unnecessary. It is probable that the help which international
lawyers can render on this issue is that of testifying not to any present
illegality of the use of the atomic weapon, but to the absence of any clear
rule laying down that it is illegal. The idea of bringing about international
agreement for the prohibition or limitation of the use of the atomic weapon
is prompted by moral and humanitarian considerations of such a compelling
character that any effort in that direction is not likely to receive a notable
accession of strength from controversial assertions as to the present illegality
of the use of the atomic weapon either in general or against the civilian
population.

' It has been suggested by Sir George Thomson-in InternationalAffairs, 26 (1950), p. 467-
that permanent contamination is produced only following upon the explosion of the atomic
bomb under water.
 THE REVISION OF THE LAW OF WAR 371
However, the fact that the prohibition or limitation of the use of the
atomic weapon may not follow inescapably from any existing legal rule or
principle does not necessarily mean that the international lawyer has no
contribution to offer on this weighty issue. In the absence of a clearly
applicable rule of law he must recognize that the issue-in particular in
view of its formidable political implications-is predominantly of a political
nature. Nevertheless, he is not, as a lawyer, precluded from adducing con-
siderations which, although not of a legal character, are not irrelevant for
the formation of the law of the future. This applies especially to considera-
tions of humanity which, as we have seen, underlay so much of the tradi-
tional law of war. The Judgment of the International Court of Justice in the
Corfu Channelcase shows that, inthe absence of contrary practice, such con-
siderations are not altogether irrelevant also in the sphere of the law of
peace. There the Court held that among the reasons imposing upon the
coastal state the duty to notify other states of the existence of minefields
within its territorial waters were 'elementary considerations of humanity,
even more exacting in peace than in war'.' So long as the international
lawyer succeeds in not confusing the existing legal position with factors
which may legitimately be taken into account in shaping the law, it is
within his province to urge that those factors are, to that extent, important
and relevant.
Secondly, although the law may be impotent, for a time, to provide a
complete solution of problems of a predominantly political complexion,
that does not necessarily mean that the law can play no part at all in meeting
the resulting situation. Thus if, for the reasons stated, a radical solution by
way of a general prohibition of aerial bombardment and of the atomic
weapon should prove impossible for a time, a practical alleviation of the
problem may be achieved not through a differentiation between legitimate
and illegitimate objectives, but by methods which make such a differentia-
tion irrelevant. These methods include the provision of safety zones and
localities such as are foreshadowed in the Geneva Civilians Convention of
1949. The Articles of the Convention on the subject are of an optional
character, and much perseverance and statesmanship may be required to
induce governments to accept binding obligations in the matter and to agree
to and undertake a measure of preparatory action in time of peace. Bodies
such as the International Committee of the Red Cross, whose devotion to
humanitarian ends lifts them above the realm of dialectics, can effectively
meet the objection that such arrangements detract from the reality of the
legal prohibition of war; that any regulation of warfare in this and other
spheres is deceptive because unlikely to be observed; that it lulls our con-
sciences by palliating the minor evil while leaving the major evils such as
ILC.J. Reports, 1949, p. 22.
372 THE REVISION OF THE LAW OF WAR
those of atomic warfare and war itself without a remedy; and that it removes
a powerful deterrent of war by creating the illusion that it can be humanized
and made bearable. For it is occasionally maintained that the very pos-
sibility of the use of a weapon fraught with consequences fatal to the sur-
vival of civilization may in itself provide the most powerful deterrent
against yet another general conflagration. It is similarly asserted that the
absence of such a deterrent may, correspondingly, become one of the con-
tributory causes of war with the ensuing increased danger of the use of the
atomic weapon by the belligerents, notwithstanding any legal prohibition,
as a measure of supreme retaliation against an actual or alleged aggressor
or otherwise by way of reprisals. These are matters of speculation. Argu-
ments of this kind apply to most other humanitarian rules of the law of
war-which means practically to the entire law of war. Upon analysis, the
view which underlies that argument is that if only the restraints which that
law imposes upon the belligerents were removed the resulting savagery of
the struggle would be likely to render it a condition so terrifying as to make
governments pause before embarking upon war. Such reasoning opposes
what is no more than a controversial possibility to what in the light of
conscience and foresight is a categorical imperative, namely, that there must
be no cessation or abatement of effort to save life, to diminish suffering, and,
to protect the dignity of man whenever the promotion of these ends even
remotely depends upon human will. That imperative could be disregarded
only if it could be conclusively shown that it can be obeyed only at the clear
risk of increasing the danger of war. No such conclusive proof is in the
nature of things possible.
The same consideration applies to the apprehension that unless aerial
bombardment of and the use of the atomic weapon against centres of
population are prohibited, all other humanitarian restraints of war must,
by comparison, appear negligible or futile. In the words of a former Presi-
dent of the Permanent Court of International Justice, who was also Presi-
dent of the International Committee of the Red Cross at the time when
the Conventions of 1949 were being prepared, 'human life and human
dignity are not values which can be measured in terms of figures and
statistics'.' The provisions, or some of the provisions, of the four Geneva
Conventions may-and that is sufficient-be capable of application even
if humanity is subjected to the ordeal of atomic warfare and even if the
conduct of the war should again be characterized by lawlessness rather
than by scrupulous observance of the law. For, as the Second World War
showed, the one does not necessarily exclude the other. 'Thus the treatment
of Russian prisoners of war by Germany was unprecedented in modern
IMax Huber, 'Le droit des gens et I'humanitd', in Revue internationale de la Croix Rouge,
August 1952, p. 669.
 THE REVISION OF THE LAW OF WAR 373
times in its brutality and its planned disregard for human life-the excuse,
wholly unfounded in law, being that Russia was not a party to the Geneva
Convention of 1929 relating to prisoners of war.' Yet at the same time
Germany conducted elaborate negotiations with the United Kingdom con-
cerning the relatively trivial question of the interpretation of Article 27
of that Convention regarding the compensation payable to prisoners of
war injured in the course of their employment.2 In September 1940 she
enacted a law providing for the application of the German insurance
regulations to prisoners of war who suffered injury in connexion with their
work.
For this reason it is to be hoped that governments and the International
Committee of the Red Cross will proceed in any case with extracting every
possible measure of effectiveness from the beneficent but essentially
optional provisions of the four Geneva Conventions in matters such as
safety zones and localities with respect to which further action is required
to make them operative. Such action can be pursued pari passu with any
efforts which may be practicable to bring about international agreement
in the matter of new weapons such as the atomic weapon, pilotless aircraft,
projectiles diffusing inflammatory material, and chemical and bacterio-
logical warfare. It is true that in the past the efforts of the International
Committee of the Red Cross have been limited to the humanitarian aspects
of the law of war as distinguished from rules governing the conduct of
hostilities and the instrumentalities of war. However, as suggested, the
borderline between humanitarian and other rules is unsubstantial. With
insignificant exceptions all rules of warfare are ultimately of a humanitarian
character. Moreover, there would appear to be no reason why in the matter
of weapons of war the initiative should not be shared with-or taken by-
the Royal Government of the Netherlands which is the depositary of the
Hague Conventions.
IV
It has been suggested that in the matter of aerial bombardment and
atomic warfare there is little that legal principle as deduced from generally
acknowledged law and practice can supply as a reason for prohibiting or
drastically limiting the use of these instrumentalities of war. This is also
the position with regard to other aspects of the law of war which have
' The International Military Tribunal at Nuremberg and various other war crimes tribunals
affirmed expressly, in relation to the treatment of prisoners of war, that numerous provisions of
the Hague and Geneva Conventions were merely declaratory of existing international law. See,
e.g., the German High Command Trial (Wilhelm von Leeb and Others): War Crimes Trials, 12
(949), p. 86; the Krupp Trial, ibid., p. 133.
2 The British Government acted on the view that the provisions of the Convention were fully
satisfied if prisoners of war were provided with accommodation, clothing, food, and medical or
hospital treatment in respect of injuries arising out of their work. This, it was believed, was in
fact treatment equivalent to that received by British workmen under British legislation.
374 THE REVISION OF THE LAW OF WAR
drawn their strength from the traditional distinction between combatants
and non-combatants-in particular the rules relating to attack upon mer-
chant vessels on the high seas and the law of contraband and blockade.
The London Protocol of 1930, which prohibited the sinking of merchant
vessels without warning and without provision having been made for the
safety of the passengers and crews, was intended to give expression to the
time-honoured principle of immunity of non-combatants. It remained a
dead letter during the Second World War. While 'murder of persons on
the high seas' figured prominently in the Nuremberg indictment, no
sentences were imposed under this head for the reason, inter alia, that un-
restricted submarine warfare was waged by some of the Allies in certain
theatres of war. The problem involved is deeper than that raised by the
arming of merchant vessels for defensive purposes and by the interplay of
the operation of reprisals. It touches upon the reality of any solution
grounded primarily in the distinction between combatants and non-
combatants. The same applies, even more emphatically, to the law of
contraband which was essentially based upon the assumption of the validity
of that distinction. Its unreality was apparent even before the First World
War. The artificial character of the ensuing compromises-such as that
limiting the application of the doctrine of continuous voyage to articles of
absolute contraband-was largely responsible for the fact that the un-
ratified Declaration of London was not acted upon, although at the begin-
ning of the war an attempt was made to put it into operation., If the practice
followed by both sides to the conflict is evidence of the legal position, then
the traditional law on the subject, derived as it was from the notion of a
legally relevant distinction between military and civilian needs, no longer
exists. The practice of two world wars was based on the view that no such
sacrosanctity attaches to the civilian population at large as to make illegal
the effort to starve it alongside the military forces of the enemy as a means
of inducing him to surrender. According to the accepted practice in war
on land the civilian population in a beleaguered fortress enjoys no such
immunity.z The definition of economic warfare officially adopted in the
terms of reference of the Ministry of Economic Warfare set up in Great
Britain at the outbreak of the Second World War illustrates this aspect of

' For a neutral-Swiss-assessment of the inadequacy of the Declaration of London in the

light of modem conditions see Duttwyler, Der Seekrieg und die Wirtschaftspolitik des neutralen
Staates (1945), pp. 13-31.
- See, for instance, the provisions of the British Manual of Military Law-which in this re-
spect is expressive of the generally accepted view-that if the commander of a besieged locality
attempts to expel the non-combatants in order to conserve his stores, it is lawful for the besieging
force to drive them back with the view to hastening surrender (paragraph 129). This rule was
upheld by the United States Military Tribunal in the German High Command Trial (War Crimes
Trials, 2 (949), p. 84) where the Tribunal said: 'We might wish the law were otherwise, but
we must administer it as we find it'.
 THE REVISION OF THE LAW OF WAR 375
the situation: 'Economic warfare is a military operation, comparable to the
operations of the three Services in that its object is to defeat the enemy,
and complementary to them in that its function is to deprive the enemy of
the material means of resistance'.' The list of articles of absolute contra-
band, which in the First World War occupied several pages of the London
Gazette, was reduced to about one-eighth of that length. But its brevity
was only matched by its comprehensiveness. Food, foodstuffs, and cloth-
ing were proclaimed to be conditional contraband--a distinction without a
substantial difference seeing that even in the First World War judicial
decisions, departing from the provisions of the Declaration of London,
applied the doctrine of continuous voyage to articles of conditional contra-
band. The result was that only a few categories of goods, such as medical
supplies, tobacco, some fancy goods, and articles intended for the use of
the ship in which they were found, remained as 'free goods'. The German
list of articles of absolute contraband as proclaimed in September 1939 was
almost a literal reproduction of the British list. It is of little consequence
that the list thus published was given the complexion of retaliatory measures.
In view of this there can be no question here of revising-or resuscitating-
the law with the help of legal arguments drawn from the obsolete armoury
of the past. The possibility must be envisaged that total war has irrevocably
removed the foundations of a substantial part of this branch of the law and
that juristic-or even political-efforts to give them a new lease of life may
be in vain. Cases, though relatively few in number, bearing upon prize law
were decided during and after the Second World War, but they were
largely of a procedural and technical character and have tended to confirm
rather than to cast doubt upon the disappearance of the traditional law.
There is no real advantage in simplifying the fundamental difficulty, which
springs from the entirely new phenomenon of the 'total' character of
modern war, and in asserting that the fate which has befallen the law of
contraband is due to the lawlessness of the belligerents. Such an approach
may stultify the usefulness of exponents of international law. The danger
of that contingency materializing may be gauged from the following pas-
sage in a paper contributed in 1912 by John Bassett Moore, an international
lawyer of justly great reputation. Commenting on the fact that the Declara-
tion of London left unsolved the question of contraband, he said: 'it will
remain so either until, by an inconceivable relapse into primitive sixteenth-
century conditions, all commerce with belligerents is forbidden, or until
innocent articles of universal use, such as provisions, which, even when con-
sumed by military men, are consumed by them as human beings rather than
as soldiers, are, in conformity with the traditional contention of the United
' As cited in Medlicott, History of the Second World War, The Economic Blockade, vol. i (1952),
P. 17.
3.76 THE REVISION OF THE LAW OF WAR
States, put beyond reach of capture on loose and interested surmises."
Yet that inconceivable relapse became a fact in the two world wars in which
the United States participated as an active ally of the belligerents applying
the measures in question; while the pathetic character of the reference to
the innocuous nature of provisions consumed by members of the armed
forces as human beings rather than as soldiers reveals the inescapable and
2
obvious limitations of legal dialectics.
At the same time, though efforts to revive the traditional law may be
altogether out of keeping with the character of modern war, there may be
room for conventional relaxations, of a humanitarian character, of belli-
gerent control over the passage of certain categories of goods to his
adversary. Such attempts were made in Article 23 of the Geneva Civilians
Convention relating to the passage of consignments of medical and hospital
stores and objects necessary for religious worship intended only for
civilians, as well as of consignments of essential foodstuffs, clothing,
and
tonics intended for children under fifteen, expectant mothers, and maternity
cases. Article 59 of that Convention relating to the passage of certain goods
to occupied territory is in the same category. The somewhat nominal
character of certain of these Articles, qualified as they are by elastic pro-
visions to be applied at the discretion of the belligerent,3 is a reminder of
the difficulties of effective regulation even in this limited sphere. Here, as
elsewhere, before speaking in general terms of the revision of the law of
war, we may be well advised to take into account the possibility that the
foundations of the traditional law, and with it the substance of the law it-
self, have disappeared in respect of this branch of law and that the limits
of any future legal regulation of the subject may have to be very nar-
rowly drawn. This does not mean that, because of its limited scope, such
'Contraband', Address delivered before the American Philosophical Society on 2 February
1912 and reprinted in The Collected Papers of John Bassett Moore, vol. vi (944), p. 58.
1 The melancholy reflection prompted by Mr. Moore's statement is accentuated by a footnote,
apparently appended by the Editor of the Collected Papers, stating that 'the comment and
forecast thus made in 1912 were remarkably verified in and after August, 1914, when, although
the Declaration of London had not become legally operative, attempts were made to apply it, in
whole or in part, provisionally as a modus vivendi' (op. cit., p. 59, n. i). Actually these attempts,
which never amounted to a full acceptance of the Declaration, were abandoned in the course of
the war. It is of interest, in this connexion, to note the studied moderation of the American pro-
test, in September 1916, against the British Maritime Rights Order-in-Council of 7 July 1916.
The protest stated that the rules enumerated in the Order were 'at variance with the law and
practices of nations in several respects'. It is reported that the then American Secretary of State
drew the attention of President Wilson to the unwisdom of adopting drastic language which the
United States would find inconvenient if it were to become a belligerent. See Morissey, The
American Defence of Neutral Rights, 1914-19r7 (193o), p. 140.
3 Thus the obligation of the belligerent to permit free passage of the goods referred to in
Article 23 is subject to the condition that he is satisfied that there are no serious reasons for fearing
that the consignments may be diverted from their destination, that the control may not be
effective, or that a definite advantage may accrue to the military efforts or economy of the enemy
through the substitution of such consignments for goods which would otherwise be provided or
produced by him.
 THE REVISION OF THE LAW OF WAR 377
regulation is of negligible importance and that the lawyer is .justified in
abstaining from lending his assistance in achieving it.

V
Similar considerations apply, from a different point of view but with the
same result, to that part of the law of war which is connected in some
respects with the question of contraband, namely, the law of neutral rights
and duties. In so far as the law of the Hague Conventions on the subject
was based, in the matter of supplies and loans to belligerents, on a clear
distinction between the neutral state and its citizens, that law is in some
respects out of date having regard to the fact-which is now the typical
phenomenon--of the exercise by the neutral state of complete control over
the economic life of its territory. Thus, in the words of an arbitral award
rendered in 1945,' fuelling is a right which belligerent warships may
exercise in a neutral port according to and within the limits of Hague Con-
vention No. XIII. However, if the distribution of fuel is taken over by the
neutral state, what are its obligations in the light of the traditional law
according to which the neutral state as such must not itself-as dis-
tinguished from its subjects-add to the military supplies of either belli-
gerent? Although revision of the law of neutrality in this sphere would
perhaps raise no insurmountable difficulty, it is probable that even with-
out express revision the established law of neutrality could be applied by
way of a reasonable interpretation of its basic provisions in the light of new
conditions. If that is so, an attempt at formal revision would be both un-
necessary and, by conjuring up political difficulties inherent in all efforts
at codification, would endanger its very purpose.
From a wider point of view there may be weighty objection to a renewed
attempt at codification of the law of neutrality, on the traditional basis of
the absolute equality of the belligerents, in a world placed, however
imperfectly, under a legal system of collective security. There is, in principle,
no room for neutrality as an undisputed right of states which are bound by
the obligations of collective enforcement of peace. It is true that under the
Charter of the United Nations there are contingencies in which neutrality
is legally admissible-in particular, in cases in which there has been a
failure of the legal machinery provided for ascertaining the fact of aggres-
sion and for bringing about enforcement action. However, it may be im-
proper to regard that contingency as typical and to devote special effort
to making provision for its regulation. Also, even if-because of the require-
ment of unanimity of the permanent members of the Security Council-
there has been a failure to ascertain formally the fact of aggression and to
The Attilio Regolo and Other Vessels: Annual Digest and Reports of Public InternationalLaw
Cases, 14947, Case No. 137.
378 THE REVISION OF THE LAW OF WAR
suppress it through enforcement action of the United Nations, there still
remains the right of individual states to determine for themselves that a
violation of the Charter has taken place and to deny the benefits of im-
partial conduct to the state waging an aggressive, i.e. an illegal, war. This
they may do in particular in cases in which, following upon inaction of the
Security Council rendered impotent by disagreement among its per-
manent members, the General Assembly has given the weight of its moral
authority to the finding that a state has been guilty of an act of aggression.,
With the prohibition of aggressive war-and that prohibition has now be-
come part of the law notwithstanding the imperfections of its enforce-
ment-the traditional law of neutrality conceived as an attitude of absolute
impartiality has undergone a profound change. It may be too early to
translate that change into precise legal rules. It is probably too late to
impart a complexion of urgency to the attempt to give more precision and
vitality to the old law of neutrality regardless of the changes brought about
by parallel developments in the law. Undoubtedly, most of the rules of
warfare, intended as they are to secure a minimum of humanity and good
faith in the relations of belligerents, operate regardless of the legality of the
war. This does not necessarily apply to rules of neutrality.z It would there-
fore appear doubtful whether the law of neutrality is at present a fit sub-
ject for revision or codification.

Conclusions
It is now convenient to formulate the main conclusions, both negative
and positive, of this article. In their negative aspect these conclusions are
that the occasion for and the prospect of codification of the law of war, by
way of development or restatement of existing rules and principles, can be
of but modest dimensions. In the first instance, the possible scope of the
revision of the law of war has been considerably reduced by the simple but

See the so-called 'Uniting for Peace' Resolution adopted by the General Assembly on 3
November 1950 (Doc. A/1481) which provides for appropriate action by the General Assembly
in cases in which the Security Council, because of the lack of unanimity of the permanent
members, fails to exercise its primary responsibility for the maintenance of international peace
and security. From the point of view of the paramount purpose of the United Nations to en-
force peace, that Resolution, 'though not binding, may be considered to provide authorization
for action aiming at fulfilling the major purpose of the Charter' (Oppenheim, InternationalLaw,
vol. ii (7th ed. by Lauterpacht, 1952), p. 176, n. x.
2 The writer of the present article has submitted elsewhere: (a) that a state waging an unlawful
war does not obtain or validly transmit title with respect to property acquired in connexion with
the conduct of war-regardless of whether such title is otherwise acquired in accordance with
the law of war-and that this principle applies in particular to title claimed to have been acquired
by requisition, by other forms of appropriation of public and private enemy property, or by
condemnations in prize; (b) that it is open to and in proper cases incumbent upon neutral states,
especially if bound by collective obligations to enforce the peace, to discriminate against a state
Nvaging an unlawful war and to deny to it and to its transferees title to such property (Festschrift
ftir Hans Kelsen (1953)).
 THE REVISION OF THE LAW OF WAR 379
outstanding fact that a large part of the law of war-by far its larger part-
has been revised, developed and codified on an imposing scale by the four
Geneva Conventions of 1949. Secondly, it may be difficult to speak of
revision of the law of war in respect of questions in which there is no agreed
law to revise. This applies to some of the principal aspects of the law of
war, such as aerial bombardment, atomic warfare, the conduct of war at
sea in relation to merchant vessels, and the law of contraband-in all of
which the distinction, traditionally regarded as fundamental, between
combatants and civilians is either indisputably relevant or, in any case,
already underlay the law as it was presumed to exist at the time of the Hague
Conferences of 1899 and 1907. Thirdly, in view of the absence of agreement
in these spheres on the importance attaching to the distinction between
combatants and non-combatants and of the radical change in the character
of war in scope and method, the creation of new law is substantially a
matter of political decision not necessarily related to any existing generally.
recognized legal principles. Fourthly, it may not be conducive to the pro-
gressive international regulation, on a humanitarian basis, of these questions
to represent them as being governed by any recognized rules of inter-
national law. The law on these subjects must be shaped-so far as it can
be shaped at all-by reference not to existing law but to more compelling
considerations of humanity, of the survival of civilization, and of the
sanctity of the individual human being. This means that the part of the
lawyer in shaping it must be confined within narrow limits. Fifthly, it is
doubtful whether reasons of propriety permit, in the formative period of
the United Nations, the codification or revision of the law of neutral rights
and duties. Having regard to these considerations, it may be advisable to
keep in check any tendency to strident admonitions upon the necessity to
revise the law of war.
On the other hand-and these are the positive conclusions emerging
from this article-there are at least three spheres, of limited compass, in
which tasks both urgent and practicable claim the attention of the lawyer.
In the first instance, although with regard to some major, and perhaps the
most important, aspects of warfare agreed legal regulation is still a matter
of the future, it is possible to subject to law what may be called the humani-
tarian fringe of the problems involved. Some of the provisions of the Geneva
Conventions of 1949 have shown the direction in which such efforts may
feasibly be attempted. Reasons have been given why it may not be per-
missible to treat these possibilities lightly-however limited they may be in
their scope and precarious in their operation.
Secondly, with regard to the Geneva Conventions of 1949, which embody
the major part of the law of war, the lawyer is confronted with the task of
incorporating, in a systematic manner, their stupendous positive achieve-
380 THE REVISION OF THE LAW OF.WAR
ment in military manuals, in textbooks, and in international law generally.
This task, which is far from being one of mere exposition, must be ac-
complished in a critical spirit.. For the Conventions, beneficent as they are,
abound in gaps, compromises, obscurities and somewhat nominal pro-
visions resulting from the inability of the parties to achieve an agreed
effective solution-occasionally to the point of the English and French
texts laying down divergent rules., Sustained scientific effort directed

It may be useful to adduce some illustrations of the tasks which lie ahead in this respect. Thus,
for instance, according to the English translation of Article 5 (2) of the Civilians Convention,
certain protected persons-such as alleged spies, saboteurs, and other persons suspected of
activity hostile to the Occupying Power-shall be regarded, 'where absolute military necessity so
requires', as having forfeited the rights of communication provided for in the Convention. The
English text of the third paragraph of that Article proceeds to lay down that 'in case of trial' such
persons shall not be deprived of the rights of fair and regular trial prescribed by the Convention.
The expression 'in case of trial' seems to suggest a departure from the fundamental rule of the
Convention that a trial is invariably required. The French text of this paragraph uses the expres-
sion en cas de poursuite. The writer understands that the discrepancy is due to the fact that it
proved impossible to reconcile the conflicting views on the subject. With regard to some other
questions the absence of agreement has manifested itself in reservations such as those relating
to Article 68 (2) of the Civilians Convention bearing on infliction of the death penalty in occupied
territory, or Article 85 of the Prisoners of War Convention relating to the treatment of convicted
war criminals. The important Articles of the Sick and Wounded Convention relating to the
internment of medical personnel and the retention of medical stores, although they do not in fact
constitute a regression from the corresponding provisions of the Convention of 1929, represent a
compromise the implications of which are not wholly clear. According to the later Convention,
while detained medical personnel shall not be considered as prisoners of war, they seem to have
been subjected to those provisions of the Prisoners of War Convention which accrue to their benefit.
The same element of only partially resolved compromise characterizes the provisions of that
Convention relating to the buildings and material of fixed medical establishments (Article 33).
The Convention contains no rules concerning reimbursement of the Protecting Power for its
expenses, which, in a prolonged war, may be heavy. In Resolution 2 attached to the Final Act
the Conference recommended for future consideration the question of the advisability of setting
up an international body to take the place of the Protecting Power in case no Protecting Power
should be available-one of the reasons of that contingency being, apparently, the possibility
that owing to the general spread of hostilities there may be no state left to accept that r6le. The
need to clarify the Convention applies also to such apparently minor matters as the protection
of property of prisoners of war. While Article 18 of the Prisoners of War Convention embodies a
measure of protection in this respect, the divergent practice of various states seems to reveal the
desirability of more specific regulation. Thus the regulations issued in the United States by the
War Department permit members of the armed forces to buy articles from prisoners of war (for
the text of the relevant circular see Downey in American Journalof InternationalLaw, 44 (1950),
p. 506). On the other hand, British military personnel are liable to punishment under military
law for trafficking with prisoners of war by way of purchase, sale or barter-a rule which com-
mends itself having regard to the obvious inequality in the bargaining capacities of the parties.
In "95 1, following upon a series of meetings, experts appointed by the Governments of Sweden,
Norway, and Denmark issued a statement putting on record their agreement as to the interpreta-
tion of a number of Articles of the various Geneva Conventions of 1949. Thus, departing some-
what from the letter of Article 18 (3) of the Sick and Wounded Convention, they agreed that a
state does not act unlawfully if it punishes as traitors nationals who have voluntarily accepted
appointments and served in the medical service of the enemy. With regard to work performed by
the civilian population and officials in occupied territory they agreed on the interpretation of the
somewhat obscure provisions of paragraph 2 of Article 51 of the Civilians Convention in relation
to Articles 31-34, paragraph 2 of Article 54, and Articles 67 and 68. They affirmed that a state
threatened by invasion is entitled to order its public officials and judges to leave the threatened
area notwithstanding any difficulties which an order of this nature may cause to the occupying
Power.
 THE REVISION OF THE LAW OF WAR 381
towards the clarification and expansion of the Conventions may in itself
add to their authority as the most comprehensive codification of the law of
war yet in existence.
Finally, in the matter of those parts of the law of war which are not
covered or which are not wholly covered by the Geneva Conventions, diverse
problems will require clarification. These include such questions as the
implications of the principle, which has been gaining general recognition,
that the law of war is binding not only upon states but also upon indivi-
duals-i.e. both upon members of the armed forces and upon civilians; the
changed character of the duties of the Occupant who is now bound, in
addition to ministering to his own interests and those of his armed forces,
to assume an active responsibility for the welfare of ffhe population under
his control; the consequences, with regard to appropriation of public
property of the enemy, of the fact that property hitherto regarded as private
and primarily devoted to serving the needs of private persons, is subjected
in some countries to complete control by the state; the resulting necessity
for changes in the law relating to booty; the emergence of motorized war-
fare with its resulting effects upon the factual requirements of occupation
and the concomitant duties of the inhabitants; the advent of new weapons
such as flame-throwers and napalm when used against human beings-a
problem which may be postponed, but not solved, in manuals of land war-
fare by the suggestion that it raises a question primarily in the sphere of
aerial warfare; the problems raised by the use of aircraft to carry spies and
so-called commando troops; the limits, if any, of the subjection of air-
borne and other commando forces to the rules of warfare, for instance, in
relation to the treatment of prisoners of war; the reconciliation of the
obviously contradictory principles relating to espionage said to constitute
a war crime on the part of spies and a legal right on the part of the bel-
ligerent to employ them; the humanization of the law relating to the
punishment of spies and of so-called war treason; the prohibition of
assassination in relation to so-called unarmed combat; authoritative clari-
fication of the law relating to the punishment of war crimes, in particular
with regard to the plea of superior orders and the responsibility of com-
manders for the war crimes of their subordinates; the regulation, in this
connexion, of the question of international criminal jurisdiction; the
elucidation of the law, at present obscure and partly contradictory, relating
to ruses and strategems, especially with regard to the wearing of the uni-
form of the enemy; the effect of the prohibition or limitation of the right of
war on the application of rules of war, in particular in hostilities waged
collectively for the enforcement of international obligations; and many.
others. In all these matters the lawyer must do his duty regardless of
dialectical doubts-though with a feeling of humility springing from the
382 THE REVISION OF THE LAW OF WAR
knowledge that if international law is, in some ways, at the vanishing point
of law, the law of war is, perhaps even more conspicuously, at the vanishing
point of international law. He must continue to expound and to elucidate
the various aspects of the law of war for the use of armed forces, of govern-
ments, and of others. He must do so with determination though without
complacency and perhaps not always very hopefully-the only firm hope
being that a world may arise in which no such calls will claim his zeal.