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Pam 27-161-1

agement and the Rules of Hostilities. The Conflict Man- shown in faure 1 above. 8
agement aspects of the Law of War consist of those legal e. The purpose of this brief analysis of the interrelation-
concepts and principles developed for the purpose of ship of the various aspects of international law has been to
eliminating or substantially reducing conflict within the in- alert the reader to the fact that sound legal advice on inter-
ternational community. Of primary concern here are national legal matters is dependent on the attorney's ap-
specific provisions of the U.N. Charter and the concepts of preciation of the broad range of international legal norms.
self-defense and intervention. 4 If these norms, for one A working knowledge of the Law of Peace is the first step
reason or another, fail to prevent the occurrence of con- in thislearning process.
flict, the other aspect of the Law of War then comes into 1-2. The Original Development of International Law.
play-the Rules of Hostilities. Of major importance here a. The Peace of Westphalia. International law is basically a
are the 1907 Hague Regulations and the 1949 Geneva product of Western European civilization. 9 Beii a law
Conventions, those treaty rules and regulations applicable between sovereign states, international jurisprudence did
to the actual conduct of combat and the concurrent not, indeed could not, arise until the modem nation-state
humanitarian safeguards. 5 The customary Law of War system came into existence. The birth of this system is
may sometimes be looked to in areas where no &led convenientlyascribed to the Peace of Westphalia of 1648,
concepts have been formulated. Publications dealing with by which the Thirty Years' War was concluded. 10 It was,
the Law of War available to the military attorney include in a sense, the constitution for the states that, almost to
DA Pam 27-161-2, International Law, Volume II this day, comprise the map of Europe. 11
(1962); DA Pam 27-1, Treaties Governing Land War- 6. International law did not develop gradually. It arose
fare (1956) ;and FM 27-10, The Law of Land Warfare rather suddenly to fill a definite need created by the fairly
(1956). 6 abrupt change in the composition of European political
(2) The Law of Peace. As the second major area of society which resulted from the Thirty Years' War. 'Ihis is
public international law, thisgenerally comprises 75 to 90 not to say, however, that earlier ages did not contribute
percent of the content of most intemational law courses significantly to the formulation of international law. Early
taught in law and graduate schools. Often viewed by many jurists in the field drew heavily on the practice of prior
military attorneys as a "nice to know--but hardly rele- civilizations where rules regulated the existing intercom-
vant" aspect of their professional responsibilities, the munity relations. 12 Major contributions toward establish-
various elements of this area of intemational jurispm- ing a viable system of international norms were made by
dence provide the basic framework upon which both the the Hebrews, Greeks, Romans, and several individuals in
Law of War and international jurisdictional arrangements the Middle Ages. 13
are based. 7 It is this framework of the law with which this 1-3. The Theories and Schools of International Law in
publication deals. Each of the chapters contained herein the State System. a. Theories. Following the disintegra-
will focus on one of the elements of the Law of Peace tion of the Holy Roman Empire, but prior to the Peace of
Westphalia, the Renaissance widened man's intellectual
4. For a brief but well reasoned discussion of these basic Conflict horizon and the discovery of the New World stimulated
management concepts, see J. McHugh, Forcible Ser-He@ in Interna- the imagination of philosophers as well as of explorers.
tional Law, Naval War College Review, Nov-Dec, 1972,at 61.
5. Annex to Hague Convention No. IV Respecting the Laws and Vitoria, a Spanish theologian whose lectures were
Customs of War on Land, Oct. 18,1907.36 Stat, 2277,T.S. No. 539,2 published in 1557 after his death, sought to apply the prin-
Malloy, Treaties 2269;Geneva Convention for the Amelioration of the ciples of international morality to the problems of the na-
Condition of the Wounded and Sick in Armed Forces in the Field, Aug. tive races of the Western Hemisphere. In another and
12, 1949, [I9551 3 U.S.T. 3114,T.I.A.S. No. 3362, 75 U.N.T.S. 31;
Geneva Convention for the Amelioration of the Condition of earlier treatise he formulated, in clearer terms than had
Wounded, Sick, and Shipwrecked Members of the Armed Forces at 8. See page 1-1,supra.
Sea, Aug. 12, 1949, (19551 3 U.S.T. 3217, T.I.A.S. No. 3363, 75 9. Thisfact has had a great impact on the contemporary view of the
U.N.T.S. 85; Geneva Convention Relative to the Treatment of socialist and evolving states toward international law. See section III,
Prisoners of War, Aug. 12, 1949, [I9551 3 U.S.T. 3316,T.I.A.S. No. p. 1-13,irlfra.
3364,75U.N.T.S. 135and Geneva Convention Relative to the Protec- lo. The Thirty Years' War, beginning in 1618, was a confused
tion of Civilian Persons in Time of War,Aug. 12,1949, [I9551 3 U.S.T. struggle of religious and political objectives. Beginnii as a domestic
3516,T.I.A.S. No. 3365, 75 U.N.T.S. 287. struggle between over 350 individual German states, the war rapidly
6. These are only a few of the publications dealing with the Law of engulfed, for a variety of reasons, the m Jor states of Europe. Emally,
War available to the military attorney. Materials sWtcally designed to when the participants had exhausted their resources, the war was termi-
assist in the teaching of the Hague and Geneva Conventions are also nated by the Peace of Westphalia of 1648.This agreement consisted of
available. the two treaties of Osnabruck and Munster, to which all of the leading
7. International jurisdictional arrangements are an aspect of public Christian states of Europe were parties.
international law of particular importance to the militaryattorney. These 11. C. Eagleton, International Government5 (3d ed. 1957); C. Fen-
arrangements speak to the jurisdiction to be exercised over military wick, International Law 14-15(4th ed. 1965).
forces stationed overseas and generally occur in the fonn of Status of 12. J. Brierly. The Law of Nations 1-2(6th ed. 1963).
Forces Agreements, Military Assistance Advisory Group (MAAG) 13. For an excellent analysis of the influence of earlier civilizations
Agreements, and Military Miion Agreements. This subject will be on the development of international law, see A. Nussbaum, A Concise
dealt with in detail in chapters 4 and 5, idm. History of The Law of Nations (2d ed. 1954).