AUGUST 2 — The first attempt to codify the laws of war is said to have been made by Francis Lieber, then a professor at Columbia College in New York. Lieber prepared what became known as the “Lieber Instructions”, also known as the Lieber Code (the Code), during the American Civil War, which were revised by a board of officers and promulgated by President Abraham Lincoln in 1863.
Article 101 of the Code stated as follows:
“While deception in war is admitted as a just and necessary means of hostility, and is consistent with honourable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is difficult to guard against them.”
So, while deception in war was “consistent with honourable warfare”, it was not lawful to use treachery to injure, let alone kill, an enemy. Treachery comprised a breach of confidence by the attacker in a situation where the victim had reason to trust that attacker. (See Michael N. Schmitt, “Assassination in the Law of War”)
Article 148 stated as follows:
“The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.”
Assassination was clearly banned — as far back as in 1863, if not earlier.
The Code was binding only on the forces of the United States but corresponded to a great extent to the laws and customs of war existing at that time. Not surprisingly, it influenced the further codification of the laws of war and the adoption of similar regulations by other states, as well as forming the origin of the project of an international convention on the laws of war presented to the Brussels Conference in 1874.
The Conference was initiated by Czar Alexander II of Russia during which delegates of 15 European States met in Brussels to examine the draft of an international agreement concerning the laws and customs of war submitted to them by the Russian Government.
The Conference adopted the draft with minor alterations. However, since not all the governments were willing to accept it as a binding convention it was not ratified.
Article 13(b) of the Brussels Declaration, as it was called, provided that “murder by treachery of individuals belonging to the hostile nation or army” was “especially forbidden.”
The Declaration influenced the next major codification attempt, the Institute of International Law’s 1880 Oxford Manual, where Article 8(b) outlawed any “treacherous attempt on the life of an enemy; as for example keeping assassins in pay or by feigning surrender”.
Twenty-five years after its promulgation, the Code — and the Declaration, among others —became the stimulus for the adoption of the Hague Conventions of 1899 and 1907 on the laws and customs of war.
The 1899 Hague Convention (II) succeeded where the Declaration failed — a ratified convention on the laws and customs of war.
Article 23(b) of the 1899 Convention put it in no uncertain terms that “it is especially prohibited to kill or wound treacherously individuals belonging to the hostile nation or army.” The provision survived unchanged in the 1907 Convention.
Both Conventions have been regarded as being declaratory of the laws and customs of war. (See Michael N. Schmitt, “Assassination in the Law of War”)
Seventy years after the Hague Convention (IV), came the 1977 Protocol Additional (I) to the Geneva Conventions of 1949. The 1949 Conventions provide specific rules to safeguard combatants, or members of the armed forces, who are wounded, sick or shipwrecked, prisoners of war, and civilians, as well as medical personnel, military chaplains and civilian support workers of the military.
Article 37 of the 1977 Protocol considers acts during an armed conflict that were previously labelled assassination as “perfidy.” It says as follows:
“It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.”
The perfidy prohibition — formerly the assassination prohibition — is customary in character, and therefore binding on all States.
Last but not least, it must be stated that the Statute of the International Criminal Court includes “[k]illing or wounding treacherously individuals belonging to the hostile nation or army” in international armed conflict, as well as “[k]illing or wounding treacherously a combatant adversary” in non-international armed conflict, a war crime [Articles 8(2)(b)(xi) and 8(2)(e)(ix), respectively].
All of the above come to this: the killing of Hamas leader Ismail Haniyeh in Iran is treacherous and a war crime.
Ever wonder why Israel has been silent over the killing? Israel will remain silent, not just for strategic reasons.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
