201 COMBAT RESTRAINTS Howard S. Levie Combat restraints fall into two sepa­ must have recourse to custom. At the rate and distinct categories: (1) Re­ first successful codification in 1899, in straints on the use of particular weap­ order to leave no doubt in this respect, ons, such as the prohibitions on the use it was agreed that the preamble of the of dumdum bullets and poison gas; and convention being drafted should include (2) restraints on the actions that may be a provision (which has become known taken during the course of combat, such as the deMartens Clause, after its au­ as the prohibitions on the denial of thor) to the effect that apart from the quarter and on the shooting of civilian rules codified in the Regulations then noncombatants. The discussion which being adopted, "populations and follows will be concerned solely with belligerents remain under the protection this latter type of restraints on permis­ and empire of the principles of ihterna­ sible combat actions. tional law, as they result from the Most of these restraints, of both usages established between civilized categories, have their origin in custom nations, from the laws of humanity, and which has evolved over long periods of the requirements of the public con­ time. Many of these customs have been science. ,,5 codified, primarily at The Hague in There are, of course, a very large 18991 and 19072 and at Geneva in number of restraints on the actions that 19293 and 1949.4 However, they have may be taken during the course of not all been codified and, accordingly, combat. The four specific areas of com­ there are still some rules for which we bat restraints which will be discussed 202 are: (1) Military necessity; (2) reprisals; a century since Lieber formulated it in (3) protection of civilian noncombat­ 1863. The present U.S. Army Manual ants; and (4) protection of prisoners of states that military necessity "justifies war. those measures not forbidden by inter­ national law which are indispensable for Military Necessity. Inasmuch as this securing the complete submission of the doctrine is really an excuse for non­ enemy as soon as possible.,,9 (Emphasis compliance with combat restraints, its added.) It goes on to call attention to importance as an introduction to any the fact that "military necessity has discussion of such restraints is obvious. been generally rejected as a defense for Over 100 years ago, in 1863, Francis acts forbidden by the customary and Lieber defined this term as follows: conventional laws of war inasmuch as "Military necessity, as understood by the latter have been developed and modern civilized nations, consists in the framed with consideration for the con­ necessity of those measures which are cept of military necessity." The British indispensable for securing the ends of Army Manual is substantially to the 1 the war, and which are lawful according same effect. 0 to the modern law and usages of iwar.,,6 The subject of military necessity as a (Emphasis added.) Note that the last defense for illegal combat actions was clause requires that all actions taken considered in a number of war crimes because of military necessity must be cases after World War II. Attention has lawful actions. Contrary to the fore­ already been invited to the statement of going, The German War Book, published the International Military Tribunal. In early in this century, adopted the doc­ the case of United States v. Krupp, the trine of "Kriegsraeson," which is, in U.S. Military Tribunal said: effect, the doctrine that the end justifies In short, these rules and cus­ the means: "Humanitarian claims such toms. of warfare are designed as the protection of men and their specifically for all phases of war. goods can only be taken into considera­ They comprise the law for such tion insofar as the nature of the war permits.,,7 That this was the Nazi policy emergency. To claim that they can be wantonly-and at the sole during World War II is indicated by the discretion of anyone belligerent­ following statement found in the disregarded when he. considers his opinion of the International Military own situation to be critical means Tribunal: nothing more or less than to There can be no doubt that the majority of [the war crimes com­ abrogate the laws and customs of war entirely. 11 mitted during World War II by the Germans] arose from the Nazi Similarly, in United States v. List, an­ conception of "total war," with other U.S. Military Tribunal held: which the aggressive wars were Military necessity permits a bel­ waged. For in this conception of ligerent, subject to the laws of "total war," the moral ideas war, to apply any amount and underlying the conventions which kind of force to compel the com; seek to make war more humane plete submission of the enemy are no longer regarded as having with the least possible expendi­ force or validity. Everything is ture of time, life and money .... made subordinate to the over­ The rules of international law mastering dictates of war. 8 must be followed even if it results U.S. military doctrine has not in the loss of a battle or even a changed during the period of more than war. ,,12 (Emphasis added.) 203 As a practical matter, there are still having committed a war crime. (A num­ many who would agree with the impli­ ber of the individuals responsible for an cations of Bismarck's query: "What incident of this nature at Malme'dy, 15 head of government would allow his including SS Colonel Joachim Peiper, state and its citizenry to be conquered were convicted of war crimes and sen­ by another state just because of interna­ tenced to death. 1 6 While they were not tionallaw?,,13 While this may appear to executed, they spent 13 years in jail­ put the problem at the civilian political and in July 1976, Peiper while living in level and to remove responsibility from the South of France was assassinated by 1 the military commander, that is not revenge seekers. 7 The massacre of 1 always true. In any event, it must be Poles in the Katyn Woods 8 may have borne in mind that when a chief of state been of the same nature. So also was decides that military necessity requires Napoleon's massacre of more than the violation of affirmative rules of the 3,500 Arabs in Jaffa in 1799.19 ) law of armed conflict he will not there­ The law of armed conflict now spe­ after be held accountable alone: Those cifically prohibits the taking of civilians who pass down or execute his illegal as hostages. In another example, resis­ orders in this respect may likewise be tance groups in the rear are destroying adjudged war criminals. 14 It might also railroad tracks, blowing up trains, and be noted that, prior to the advent of the ambushing truck routes, thus critically nuclear age (and, perhaps, even since interfering with essential supply of that event), it was rare, indeed, that the troops in combat. The local commander illegal application of the rule of military orders the random taking of civilian necessity would make the difference hostages, some to be carried· in the between victory and defeat. trains and trucks being attacked, and Now let us attempt to apply the others to be executed at the ratio of 10 restrictions on the doctrine of military civilian hostages for each soldier of his necessity to specific factual situations. command who is killed by the irregu­ The law of armed conflict specifi­ lars. Is this order legal? No.- The rule cally protects prisoners of war from prohibiting the taking of civilian maltreatment. For example, an armored hostages was drafted and adopted with unit has just captured a large number of full knowledge of the existence of the prisoners of war. It receives urgent doctrine of military necessity and over­ orders to move forward to participate in rides it insofar as the use of hostages is ~ attack which is taking place some concerned. To take hostages in the miles away. What does it do with its manner and for the purposes indicated prisoners of war? It cannot take them would violate an affirmative rule of the along. It has no personnel available to law of armed conflict and the partici­ guard them and no facilities for sending pants in such an episode would be guilty 2 them to the rear. Does military neces­ of having committed a war crime. 0 sity permit the shooting of these POWs? No. The rule protecting them from Reprisals. Reprisals are acts of re­ maltreatment, including death, was taliation, in the form of conduct which drafted and adopted with full knowl­ would otherwise be illegal, committed edge of the existence of the doctrine of by one side in an armed conflict in military necessity and overrides it in­ order to put pressure on the other side sofar as the treatment of prisoners of to compel it to abandon a course of war is concerned. To shoot them would illegal action which it has been follow­ violate an affirmative rule of the law of ing and to return to compliance with armed conflict and the participants in the law of armed conflict. such an episode would be guilty of It has sometimes been argued that 204 reprisals lead, not to redress of the that reprisals may only be directed wrong previously committed, but to against enemy combatants and against new breaches. Nations have, in theory, enemy property not protected by a admitted this to be a fact by agreeing to specific rule of the law of armed con­ prohibit reprisals against various cate­ flict.