Hague Land Warfare Regulations
The Hague Land Warfare Ordinance ( HLKO ) is the annex to the second Hague Agreement of 1899 “regarding the laws and customs of land warfare” adopted during the first peace conference in The Hague , which was re-adopted in 1907 as the fourth Hague Agreement in a slightly amended version at the follow-up conference has been. It is the most important of the Hague Conventions that arose in the context of these conferences and thus, alongside the Geneva Conventions, an essential part of international humanitarian law . In the event of war, the Hague Land Warfare Regulations contain stipulations on the definition of combatants , on dealing with prisoners of war , on restrictions on the choice of means of waging war , on the sparing of certain buildings and facilities of social and societal importance, on dealing with spies , for surrender and ceasefire agreements as well on the conduct of an occupying power in an occupied territory . For dealing with injured and sick soldiers, the Hague Land Warfare Regulations refer to the first Geneva Convention in the versions of 1864 and 1906.
The main text of the associated agreement comprises five (1899) and nine (1907) articles, in which, along with other procedural aspects, the applicability and implementation are regulated. The Hague Land Warfare Regulations as an annex to this are significantly more extensive with 60 (1899) and 56 (1907) articles and contain the stipulations on the laws and customs of land warfare. Fifty-one states became party to the 1899 version and 38 states joined the 1907 version. A total of 53 countries have acceded to at least one of the two versions. The Netherlands is the depositary of all Hague Conventions .
The Hague Land Warfare Regulations are still valid contract law for the contracting parties and their successor states in their relations with one another. In addition, its principles have been customary international law for several decades . They are therefore also binding for states and non-state parties to the conflict that have not explicitly acceded to the agreement. In addition, essential parts of the Hague Land Warfare Regulations were expanded and specified in the four Geneva Conventions of 1949, their two additional protocols from 1977 and the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts of 1954. The Hague Land Warfare Regulations are thus, in addition to their importance under customary law, also the historical starting point for essential contractual parts of current international humanitarian law.
Legal historical development
The Brussels Conference of 1874
The first attempt to lay down rules for warfare in the form of an international treaty was the Brussels Conference of 1874 . Ten years earlier, with the Geneva Convention of 1864, a binding agreement had been concluded for the first time, which obligated warring states to treat and care for wounded soldiers. At that time, war was still regarded as a justified means of resolving interstate conflicts if there was a reason for war, a right to war referred to as “ ius ad bellum ” was considered undisputed. In addition, there was a general belief that the near future would bring a number of inevitable wars. The success of the Geneva Conference of 1864 resulted in many leading personalities in politics and the military in Europe, however, that - also from a military point of view - a regulation and “humanization” of the war through a “ ius in bello ”, a right in Wars that would make sense.
From July 27 to August 27, 1874, on the initiative of the Russian Tsar Alexander II, a conference was held in Brussels , in which representatives from a total of 15 European countries took part. The Russian international law expert Friedrich Fromhold Martens had prepared a draft convention consisting of 71 articles for this conference. The delegates present at the conference finally adopted a declaration based on this proposal “On the Laws and Customs of War”, which consisted of 56 articles. However, it was not ratified by any country in the following years and thus never achieved the status of an international treaty. On the one hand, this was due to the character and evaluation of the conference itself. It was organized by the Russian government unilaterally and without prior consultation with other states and ultimately served more to present the European royal family than to the serious undertaking of concluding an agreement that was binding under international law . The meaning and purpose of the conference were therefore partly unclear, so that the participating countries, for various reasons, were mostly skeptical or even negative about the conference. On the other hand, most of the smaller countries feared that the rules contained in the Brussels Declaration would unilaterally serve the interests of the great powers.
The Institut de Droit international (Institute for International Law), founded a year before the Brussels Conference, attempted to solve these problems by publishing an Oxford Manual on the rules of land war under the title “Manuel des lois de la guerre sur terre” in 1880 published by the Geneva lawyer Gustave Moynier . It was essentially a summary of the Brussels Declaration of 1874, the Geneva Convention of 1864 and some other customary regulations. The manual was intended to serve as a template for corresponding legal regulations in the national law of the individual states, but was almost completely ignored in this regard.
The Hague Peace Conferences of 1899 and 1907
Of 18 May 1899 to 29 July 1899, the Dutch Queen was then invited by Wilhelmina in The Hague , the first Hague Peace Conference held, attended by 108 representatives of 29 States. The Russian Tsar Nicholas II initiated this conference . The Russian economy was immensely burdened by the arms race with Germany and England; The Tsar probably hoped that successful negotiations would alleviate this burden. The general public in European countries showed considerable interest in the run-up to the conference. This was especially true for the peace movement organized in various societies and initiatives under the leadership of Bertha von Suttner , but also for various religious groups and in some cases also simple popular initiatives at the level of municipalities and cities, which addressed theirs in countless resolutions and appeals Governments turned and approved the convening of the conference. The participants of the conference were presented with collections of around 100,000 signatures from Belgium and around 200,000 signatures from the Netherlands, which supported the conference's concerns in the area of arms limitation and non-violent conflict resolution.
A circular from the Russian government in December 1898 explicitly named the revision and acceptance of the Brussels Declaration as the objectives of the conference. Friedrich Fromhold Martens was instrumental in organizing the Hague Peace Conference and was President of the Committee on the Rules and Customs of War during the conference. Since the convention “regarding the laws and customs of land war”, which was later adopted by the conference and which contained the Hague Land War Regulations in its annex, was based almost entirely on the Brussels Declaration of 1874 and thus on Martens' draft, he is considered the spiritual father of the Hague Land Warfare Regulations and thus as the founder of the Hague branch of international humanitarian law.
A second important agreement in addition to the Convention “on the Laws and Customs of War on Land” that was concluded in this context was a convention “on the application of the principles of the Geneva Convention of August 22, 1864 to naval warfare”. Three further resolutions of the conference concerned a five-year ban on the use of projectiles and explosives from the air, a ban on the use of asphyxiating or poisonous gases, and a ban on the use of deformable projectiles . The convention "on the laws and customs of land warfare", consisting of five articles in the main text and 60 articles on the implementing provisions in the appendix, gradually acceded 51 states as contracting parties, of which 25 as signatory states of the agreement on July 29, 1899 France , the United Kingdom , Russia and the USA were also the German Empire and Austria-Hungary among the signatory states. Both became a contracting party on September 4, 1900, and Switzerland joined the agreement on June 20, 1907. The entry into force of the Hague Land Warfare Code established three fundamental principles in international humanitarian law:
- even in an armed conflict there is at no point in time a completely unlawful space or a situation without any laws,
- there are restrictions on the means of waging war and
- Civilians, other non-combatants and civil institutions are to be spared as far as possible.
The initiative for the Second Hague Peace Conference in 1903 came from a petition by the American Peace Society. The petition was followed by a resolution by the State of Massachusetts Senate and House of Representatives . This contained a request to the US Congress to instruct the American President to invite the governments of the world to establish a regular congress on various questions of the common good. At the meeting of the Inter-Parliamentary Union in St. Louis in 1904 , this idea was taken up in the form of a recommendation to make the problems that had not been resolved at the conference of 1899 the subject of a follow-up conference. This came about three years later on the initiative of the then US President Theodore Roosevelt , although it was officially convened again by the Russian Tsar. In contrast to the ideas of the United States, which again provided for negotiations on disarmament and arms limitation at the conference, the Russian side's proposals were limited to improvements in the area of peaceful resolution of international disputes and humanitarian law.
During the second Hague Peace Conference from June 15 to October 18, 1907, the convention “Regarding the Laws and Customs of War on Land” was only slightly revised. Seventeen parties to the 1899 version - Argentina , Bulgaria , Chile , Colombia , Ecuador , Greece , Italy , Korea , Montenegro , Paraguay , Persia , Peru , Serbia , Spain , the Ottoman Empire , Uruguay and Venezuela - did not, however, sign the revised version. The German Empire and Austria-Hungary, like Switzerland, France, Great Britain, Russia and the USA, were among the signatory states on October 18, 1907. For the German Reich and Austria-Hungary the agreement came into force on January 26, 1910, and for Switzerland on July 11, 1910.
The further development after 1907
The Hague Land Warfare Regulations remained unchanged in the version adopted in 1907. The majority of the contracting parties joined it before the First World War . Between the two world wars, only Finland (1918), Poland (1925) and Ethiopia (1935) became contracting parties; after the Second World War the Dominican Republic (1958), Belarus (1962), the Fiji Islands (1973) and South Africa ( 1978). In addition to Finland, Ethiopia and Poland, Liberia (1914) is one of the countries which, as a party to the 1907 version, had not acceded to the 1899 version. The main reason for the hesitant acceptance in the interwar period and after the Second World War was the fact that the provisions of the Hague Land Warfare Regulations proved extremely inadequate in both world wars. During the First World War, this was particularly true of the fate of prisoners of war, while during the Second World War, the civilian population in particular suffered from the ruthless waging of war. In addition, the so-called all -participation clause , which regulated the validity of the Hague Land Warfare Regulations, significantly restricted its acceptance by the warring powers.
Due to the above-mentioned shortcomings, a number of the provisions contained in the Hague Land Warfare Regulations have been expanded and specified in newly concluded agreements or in revised versions of the Geneva Conventions. From December 11, 1922 to February 6, 1923, an international legal commission of 52 experts discussed the international law regulation of the areas of telecommunications and air warfare that have been relevant since the First World War . However, a 62-article draft on air warfare law (“Hague Air War Rules”) did not become legally binding due to a lack of ratifications. None of the addressed governments followed the recommendation to sign the agreement. The reasons for this were probably the unwillingness to allow legal limits to be set in a crucial sector of the defense, as well as the conviction that relevant content was already covered by the land warfare order.
With the Geneva Protocol of 1925, the prohibition on the use of toxic substances contained in Article 23 of the Hague Land Warfare Regulations was explicitly confirmed and extended to include bacteriological weapons . In 1929, the Geneva Convention on the Treatment of Prisoners of War was a separate treaty for the treatment of prisoners of war, which was revised and expanded in 1949. Despite this new convention, the Hague Land Warfare Regulations were of particular importance with regard to the treatment of prisoners of war during the Second World War. With the Soviet Union and Japan , two main powers of the war had not acceded to the Geneva Prisoner of War Convention of 1929, but were parties to the Hague Land Warfare Regulations.
After the Second World War, the 1949 Geneva Agreement “on the protection of civilians in times of war” created an independent set of rules for the treatment of civilians, which in many areas goes far beyond the requirements of the Hague Land Warfare Regulations. In particular, the restriction that the rules contained in the Hague Land Warfare Regulations for dealing with civilians only applied to an occupying power in an occupied area no longer existed with the Geneva Agreement. The all-participation clause was no longer included in the Geneva Conventions of 1929 and 1949. Essential parts of the Hague Land Warfare Regulations, which contained restrictions on the choice of means of waging war, finally came into the legal framework of the Geneva Conventions with Additional Protocol I of 1977 "on the protection of the victims of international armed conflicts". The aspect of the protection of cultural property in armed conflicts, which is only rudimentarily contained in the Hague Land Warfare Regulations, was implemented in a much expanded form in 1954 in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict .
In addition, an important step in the development of the Hague Land Warfare Regulations was the acceptance of the validity of the principles formulated in it as customary international law . Even if no exact date can be determined for this, this legal opinion was explicitly confirmed for the first time in 1946 in a decision by the International Military Court of Nuremberg . This means that the principles of the Hague Land Warfare Order are also binding for states and non-state parties to the conflict that have not acceded to the agreement themselves. The Rome Statute for the International Criminal Court , which was passed on July 17, 1998 and entered into force on July 1, 2002, defines in Article 8 war crimes in international conflicts as “serious violations of the Geneva Conventions of August 12, 1949” and “serious violations of the Laws and Customs Applicable in International Armed Conflict within the established framework of international law ”. These include violations of important provisions of the Hague Land Warfare Regulations.
Main text of the convention
The main text of the Hague Convention “On the Laws and Customs of War on Land” in the versions of 1899 and 1907 in five and nine articles, respectively, contains some general formulations and implementing provisions.
In the preamble, the convention already contains a principle known as Martens' clause . For situations in armed conflicts that are not expressly regulated by written international law, this specifies the standards of custom , conscience and humanity for the evaluation of actions and decisions. This clause was proposed by Friedrich Fromhold Martens during the Hague Peace Conference of 1899 as a compromise solution to the issue of the treatment of civilians who take part in combat operations. However, it has since been included in a number of other agreements and is now considered an important principle of international humanitarian law.
Article 1 obliges the contracting parties to apply the provisions contained in the annex to their armed forces as rules of conduct. The stipulation on validity contained in Article 2, also known as the all-participation clause , states that the provisions of the Convention apply in the event of war between two or more contracting parties and are only binding as long as all parties involved in the conflict have acceded to the agreement. The entry into the war of a country that is not a party to the convention invalidates its validity for all participating states. The aim of including such a clause was to prevent a twofold legal situation with regard to the obligations of the Convention. This could arise from the participation of a smaller country that would not be a party to the convention. Based on the experiences with the wars of the time, in which two conflicting parties with only a few states on both sides usually participated, such a regulation was considered sensible. In the two world wars in particular, however, it turned out to be extremely problematic with regard to the acceptance of the Hague Land Warfare Regulations.
Articles 3 and 5 in the versions of 1899 and 1907 respectively designate the Netherlands as depository power of the agreement. Articles 5 and 8 respectively contain provisions for the termination of the agreement by a contracting party.
Regulations of the Annex
The appendix to the Hague Convention “Regarding the Laws and Customs of War on Land” contains in the versions of 1899 and 1907 in 60 and 56 articles, respectively, the actual provisions on the rules and customs of war on land.
Article 1 lays down the validity of the laws, rights and duties of war for members of the army, militias and volunteer corps under the conditions that (1) someone is at their head who is responsible for his subordinates, (2 ) they wear a permanent and recognizable badge, (3) they wield their weapons openly and (4) they observe the laws and customs of war. For the first time in military history, the article contained an internationally binding definition of combatants . In Article 2, the population of unoccupied areas is also granted combatant status if they have not had time to organize themselves in accordance with the provisions of Article 1. In addition, civilians at war must obey the laws and customs of war and, according to the 1907 version, wield their weapons openly.
Articles 4 to 20 lay down various principles for the treatment of prisoners of war. These are to be treated humanely in accordance with Article 4. Prisoners of war may be used to work (in the version of 1907 with the exception of officers). The capturing party is responsible for the maintenance of the prisoners of war (Article 7) and treats the prisoners of war as their own troops with regard to food, clothing and accommodation. Prisoners of war are subject to the laws, regulations and orders of the state in whose power they are (Article 8). You can be disciplined for a failed escape attempt , but not if you are captured again after a successful escape. According to Article 9, prisoners of war are obliged to state their name and rank on request.
War correspondents , journalists , sutlers , suppliers as well as other persons not directly belonging to the army are entitled to treatment as prisoners of war if they can legitimize themselves by an identity card from the military authority of their home country (Article 13). Each party involved in the conflict is obliged to set up an information point about the prisoners of war (Article 14). Officers prisoner of war are entitled to payment of their wages (Article 17), in the version from 1899 in an amount corresponding to the requirements of their home country, in the version from 1907 analogous to the officers of the same rank in the country in which they are held. The government of the home country is obliged to reimburse the relevant costs. After a peace agreement, the prisoners of war are to be released “within the shortest possible time” (Article 20).
Article 21 refers to the Geneva Convention for the treatment of the sick and wounded. Article 23 prohibits a number of means of waging war. These stipulations include, for example, a ban on the use of poisonous substances , a ban on taciturn killing or wounding, a ban on killing or wounding an enemy who has surrendered, as well as a ban on orders not to pardon and a ban on Guns and projectiles that cause unnecessary suffering. The abuse of the parliamentary flag, the national flag and uniforms of the opponent as well as the symbols of the Geneva Convention are also prohibited . The 1907 version also contains a ban on forcing members of the opposing party to engage in acts of war against their own country.
Undefended cities, villages, apartments or buildings must not be attacked (Article 25). In the event of sieges and attacks, religious and scientific institutions as well as buildings that serve the arts or charity , as well as historical monuments and hospitals , are to be spared as far as possible (Article 27). The besieged are obliged to mark such facilities accordingly. Cities and settlements must not be looted (Article 28). Articles 29 to 31 regulate the handling of spies, Articles 32 to 34 regulate the special status and protection of parliamentarians. More detailed provisions on surrender and an armistice are contained in Articles 35 to 41.
Articles 42 to 56 lay down rules governing the conduct of an occupying power on occupied enemy territory. An occupier is obliged, among other things, to restore and maintain public order and public life (Article 43). The population of an occupied territory must not be compelled to engage in acts of war against their own country (Articles 44 and 45 in the versions of 1899 and 1907, respectively). In accordance with Article 44 of the 1907 version, it is also forbidden to force the population of an occupied territory to disclose information about one's own army or its means of defense. Confiscation of private property is prohibited, as is looting (Articles 46 and 47). Collective punishment against the population for the acts of individuals is prohibited (Article 50).
Articles 57 to 60 of the 1899 version regulate the treatment of internees and wounded by neutral states. They are not included in the 1907 version.
Implementation in practice
Penalty for violations
The Hague Land Warfare Regulations do not contain any stipulations on sanctions for persons or groups of persons for violations of the rules it contains. Only Article 3 of the associated agreement in the version of 1907 prescribes a generally formulated obligation to pay damages in the event of a breach by a contracting party. Serious violations have been punishable in Germany since 2002 on the basis of the International Criminal Code, in particular through to VStGB. In Switzerland , corresponding regulations are contained in the Military Penal Act passed in 1927 , currently in the 2004 version. In Austria , the Federal Constitutional Law and Criminal Code form the legal basis for the criminal liability of violations of the rules of the Hague Land Warfare Code. In the GDR, Section 93 of the Criminal Code of January 12, 1968 regulated the criminality of war crimes and Section 84 of the Criminal Code a corresponding exclusion of the statute of limitations.
After the First World War, the German National Assembly passed a law on December 18, 1919 for the prosecution of war crimes and war crimes in order to prosecute criminal offenses “committed by a German at home and abroad during the war up to June 28, 1919 against enemy nationals or property committed ". For a total of around 900 people who were accused of war crimes by the Allies, the Reich government undertook to bring them to justice instead of extraditing them. In total, investigations had been initiated in around 1,500 cases by 1927. However , there were only 17 legal proceedings before the Reichsgericht in Leipzig , ten of which ended with a conviction and seven with an acquittal. The maximum imposed sentence of five years was for a looting conviction . One case involving the shooting of captured French soldiers resulted in a major being sentenced to two years' imprisonment for negligent homicide . For bodily harm or serious bodily harm , there were sentences between six and ten months. The record of the Leipzig trials is generally viewed as a failure to effectively prosecute war crimes after the First World War. The parties to the conflict justified the use of chemical warfare agents for gas warfare by interpreting the prohibitions contained in Art. 23 of the Hague Land Warfare Code. According to this point of view, the ban on toxic substances in Art. 23a would not apply to projectiles that release poison, but only to poisoning water, food or soil, for example. The prohibition of weapons, projectiles or substances which cause unnecessary suffering, as formulated in Art. 23e, was countered by the need for chemical warfare agents to achieve potential military advantages.
The legal basis for a conviction of violations in the context of the Second World War was above all the London Statute of the International Military Tribunal of Nuremberg, passed on August 8, 1945 . This defined war crimes in Art. 6 as violations of the laws and customs of war and named among other things the murder or abuse of civilians and their deportation for forced labor, the murder and abuse of prisoners of war, the killing of hostages, the looting of public and private property and Measures that were not justified by military necessity. In contrast to the Leipzig trials after the First World War, the Nuremberg International Military Court primarily served to prosecute senior officials from politics, the military and business. In the Nuremberg trial of the main war criminals , as the first and most important of the Nuremberg trials, a total of 16 of the 24 defendants were found guilty of war crimes. In all of these cases, however, the guilty verdict was made in unison with other charges, such as crimes against peace or crimes against humanity . None of the defendants was charged with war crimes alone, or accordingly convicted on this point only. The total punishment in the cases in question ranged between death sentences and imprisonment sentences of 15 or 20 years. However, it is difficult to give an exact weighting according to the individual charges.
International acceptance and participating organizations
The International Criminal Court based in The Hague by the entry into force of the Rome Statute the possibility of war crimes to prosecute as its basis in international law since 1 July 2002 under certain conditions. Article 8 of the Rome Statute also contains corresponding references in the definition of war crimes to “serious violations of the laws and customs applicable within the established framework of international law in international armed conflict”, including violations of important provisions of the Hague Land Warfare Code . However, the International Criminal Court only becomes active with regard to criminal prosecution if there is no adequate national jurisdiction or if it is unable or unwilling to prosecute the offenses concerned. However, for various reasons the International Criminal Court is not recognized by a number of countries. These include the USA, Russia, the People's Republic of China, India, Pakistan and Israel.
Relationship with the Geneva Conventions
Within international humanitarian law, in addition to Hague law, whose central component is the Hague Land Warfare Regulations, the Geneva law formulated in the Geneva Conventions also developed . Based on its historical origins, this primarily regulates how to deal with so-called non - combatants , i.e. people who are not involved in the fighting in the event of an armed conflict. These are wounded, sick and captured soldiers and civilians. In contrast, the Hague Law mainly contains provisions on permissible means and methods of warfare and thus above all rules for dealing with the people involved in the fighting, the combatants. However, essential parts of Hague Law have been integrated into Geneva law as part of the further development of international humanitarian law. In addition, the separation of these two areas with regard to the treatment of combatants and non-combatants was not strict and consistent from the start.
The Geneva Conventions III and IV stipulate in Articles 135 and 154, respectively, that the rules contained in them should supplement the corresponding sections of the Hague Land Warfare Regulations. A similar stipulation was also contained in Article 89 of the Geneva Prisoners of War Convention of 1929. How this should be done in individual cases on the basis of generally applicable principles of interpretation such as lex posterior derogat legi priori (“the later law takes precedence over the earlier”) and lex specialis derogat legi generali (“the special norm takes precedence over the general law”) remains open .
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- German Red Cross (Ed.): The Geneva Red Cross Agreement of August 12, 1949 and the two additional protocols of June 10, 1977 as well as the Agreement on the Laws and Customs of Land War of October 18, 1907 and Annex (Hague Land Warfare Regulations). 8th edition. Writings of the German Red Cross, Bonn 1988.
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- Michael Reisman: The Laws of War: A Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict. Vintage Books / Random House, Inc., New York 1994, ISBN 0-67-973712-X .
- Adam Roberts, Richard Guelff: Documents on the Laws of War. 3rd edition. Oxford University Press, Oxford and New York 2000, ISBN 0-19-876390-5 .
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- International Committee of the Red Cross (Ed.): Rules of international humanitarian law and other rules relating to the conduct of hostilities. Collection of treaties and other instruments. ICRC, Geneva 2005, ISBN 2-88-145014-8 .
- Karma Nabulsi: The Modern Laws of War from 1874 to 1949. In: Traditions of War. Occupation, Resistance and The Law. Oxford University Press, Oxford and New York 1999, pp. 4-19, ISBN 0-19-829407-7 .
- International agreement of July 29, 1899 on the laws and customs of land warfare (with regulations) in the official Swiss translation
- International Humanitarian Law - Hague Convention II 1899 English version, with list of contracting parties
- Agreement of October 18, 1907 regarding the laws and customs of land warfare (with regulations) in the official Swiss translation
- International Humanitarian Law - Hague Convention IV 1907 English version, with list of contracting parties
- Agreement on the laws and customs of land warfare (Hague Land Warfare Regulations), October 18, 1907 , in: 1000dokumente.de
- Search for Hague Land Warfare Regulations in the catalog of the German National Library
- Search for Hague Land Warfare Regulations in the German Digital Library
- Search for "Haager Landkriegsordnung" in the SPK digital portal of the Prussian Cultural Heritage Foundation