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§ 1. Formation and development of the international humanitarian law about the forbidden methods and weapons of war in XIX - the beginning of XX centuries

The international humanitarian law (further - MGP) is one of the oldest arches of the international legal norms constituting separate branch of international law.

The question of a periodization of history MGP is represented difficult enough as there are no conventional criteria on which it could be carried out.

So, V.J.Kalugin has offered the following variant of a periodization of development MGP: laws and customs of conducting war in antiquities, laws and customs of war of the Middle Ages, MGP during new and newest time. And the author subdivides last period into the law of arms from XVIII century before Diplomatic conference of 1864, the right of the armed

Conflicts to 1864 before Diplomatic conference of 1949 and MGP since 1949 on the present время1. There are also other approaches of scientists to periodization MGP [2 [3] '

In comparison with other branches of international law, regular codification and forward development MGP by means

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The conclusions of multilateral treaties have begun for a long time.

Fundamental unity MGP is based on the basic human values divided by all cultures. Humanitarian laws of conducting war and the international custom have an ancient origin, their roots leave for millenia deep into histories of many cultural traditions, including Chinese, Greek-Roman, Japanese, Muslim and modern European (for example, it is known, that already in an ancient Indian historical monument - Laws Ману1 - the positions contained, concerning restrictions in ways of conducting war). Within centuries numerous religious and philosophical ideas fed these roots, expressed attempts of human consciousness whenever possible to soften cruelty of war and the terrifying sufferings connected with it [4 [5] [6] [7].

The question, concerning justice of wars and legal rules of their conducting, has been put in XVII century to the Dutch scientists Gugo Grotsiem. In its opinion, war can be considered fair only at observance of certain conditions: «It is necessary, that from both parties war was led voleju those who in the state is invested by the Supreme power, and then — that

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Known ceremonies »were observed. So,"ceremonies", that is rules of conducting war, he considered:

1) the humane relation to civilians, in particular to women, old men and children, and also clerics and the persons equal to them (to monks, etc.), to science officers, teachers, dealers and farmers;

2) prohibition of the deprivation of life captured, encumbrance by their heavy works, and also unmerciful punishment of such persons;

3) prohibition of unreasonable destructions;

4) prohibition of destruction of cultural values, etc.

The modern humanitarian law is a consequence of long process normotvorchestva, the beginning to which was necessary in the end of XIX century when there was an aspiration to codification of laws and customs of war. As a result of MGP became one of most kodifitsirovannyh branches international права1.

As marks F.Bjunon, for this purpose rather volume case of the right two kinds of norms are characteristic: right G aagi which positions are directed on restriction or prohibition of concrete methods and means of conducting military actions, and the right of Geneva, putting the primary goal protection of victims of confrontations [8 [9] [10]:

«Laws and customs of war» as them traditionally name, were object of efforts on the codification, undertaken in the Hague (including Conventions 1899 and 1907), and were based partly on the Petersburg declaration of 1868, and also at the Bruxelles conference of 1874.

It «the Hague right», especially Position about laws and customs of the land warfare, being the appendix to the Convention on laws and customs of the land warfare from October, 18th, 1907, established the rights and duties of belligerent parties at carrying out of military actions by them and limited a choice of methods and means of causing of damages to the opponent during the international confrontation. To it it is necessary to add «the Geneva right» (Conventions 1864, 1906, 1929 and 1949) which provides protection of victims of war and it is directed on granting of guarantees by the wounded man and the patient from among military men and to the persons who are not participating in

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Military actions ».

So, after the lapse of time many conditions and the rules developed by scientists, diplomats and military men of different years, have found legal fastening in the international treaties devoted to conducting of war, and them

Infringement has been recognised by criminal [11].

Methods of conducting military actions are understood as an order of use of certain means with a view of suppression of armies of an adversary and drawing to it of losses at the most minimum admissible level.

Depending on various criteria methods of conducting war share on forbidden and permitted, directed against lawful participants, victims of confrontations or civil objects.

It is accepted to understand the weapon, combat material and other means applied by armed forces during a confrontation for maintenance of defeat of the opponent as weapons of war.

It is necessary to notice, that at war during armed conflicts should choose such methods and means of suppression and destruction of forces of an adversary which will not contradict norms and principles MGP and will not bring bolshego a damage, than that is demanded by performance of the put fighting problems.

In 1863 thanks to efforts Anri Djunana and its colleagues the International committee of the help has been created by the wounded man who became subsequently the International Committee of the Red Cross (MKKK). Same year the international conference in Geneva signing of the Convention on improvement of a fate of wounded men and sick soldiers during overland войны2 became which result has been assembled. The big aspiration of the states to improve the given convention have led to convocation of one more Geneva conference which has taken place in 1906 where the convention added with new positions from 33 articles has been accepted.

At war should lead military actions in strict conformity with a principle of restriction of methods at war in a choice and conducting means войны1, for the first time formulated in a preamble of the Petersburg declaration of 1868: «the Unique lawful purpose which the states during war should have, consists in easing of military forces of the opponent» [12 [13] [14].

In the Project of the international declaration on laws and customs of war of 1874 position that «laws of war do not recognise behind unlimited authority belligerent parties in a choice of means of drawing each other harm» (item 12) has been formulated. At the same conference for the first time were

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The forbidden methods and weapons of war are formulated.

And distinctions between unlawful methods and means of conducting military actions at that time it was not spent.

Later, on the First (1899) and the Second (1907) world Conferences was especially underlined the fact of insufficiency of simple transfer of unlawful means in connection with creation of new types of weapon and uses by their field armies.

Actually position about restriction of belligerent parties of the conflict in a choice of methods and weapons of war has been fixed in the form of the following formula: «at war do not use the unlimited right in a choice of means of drawing of harm to the enemy» (item of XXII Convention on laws and customs of the land warfare from October, 18th, 1907) [15]

It is known, that both Conferences of the world have been assembled at the initiative of Russia. It is remarkable, that else in the circular of Russian government from August, 12th, 1898 the reference to representatives of all powers accredited in Petersburg contained, to prosecute a subjects on warning facilities of armed conflicts between the people. In it main objectives future конференции: have been planned... First, by mutual and peaceful discussion of state differences and conditions of restriction of arms to warn war and, secondly, by means of an exchange of opinions to find out those conditions at which the arisen war could be put in the narrowest frameworks from the point of view of humanity and the general advantage of the people »2.

The role of the Second conference of the world which was passing in the Hague from June, 2nd till October, 5th, 1907, in formation and further development MGP sees in an interconnection of its results results of previous First conference of the world which was passing from May, 6th till July, 17th, 1899 after which end of the state-participant have signed three conventions is better:

1) About the peace resolution of disputes;

2) About laws and customs of the land warfare;

3) About application to sea war of the beginnings of the Geneva convention on August, 10th (22), 1864

And also three declarations:

- About prohibition to throw shells and explosives from balloons or by means of other similar new ways;

- About prohibition to use the shells having unique appointment - to extend suffocating or harmful gases;

- About prohibition to use the bullets easily developed or

Flattened in human теле1.

Thus, in the end of XIX century the forbidden methods of conducting war have been defined. However positions of the accepted conventions did not solve all complex of the problems connected with cardinal restrictions of application of military force as by contracts creation in Europe two groupings of the imperialistic states - the future participants of the First World War by then has been issued.

At the Second Hague conference of 1907 the Russian project of the international convention on laws and customs of war was considered. Three earlier accepted conventions have been as a result reviewed and is formulated ten new. Among them the most significant became:

- About the peace permission of state differences - I;

- About opening of military actions - III;

- About laws and customs of the land warfare, with entering into its structure

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The appendix «Position about laws and customs of the land warfare» - IV.

All Hague conventions of 1907 (except for XII - Conventions on establishment of the International prize-winning chamber which have not become effective) are recognised by the majority of the states of the world, are operating and keep the force as the conventional international legal certificates which have fixed usual rules (norm) of conducting of war on the sea and on a land.

Besides, item of XXV IV Hague convention of 1907 contains an interdiction for attack or bombardment by any way of not protected cities, settlements, dwellings or structures.

Kasaemo methods of conducting military actions, norms MGP categorically forbid destructions of civil objects, and also [16 [17] objects which are necessary for a survival of civilians (for example, not protected settlements, cities, structures or dwellings, hospitals, the transport used by the population, water sources, stocks of a foodstuff, etc.).

Protection and the control for «constructions and the installations containing dangerous forces» is in a special way regulated: dams, dams, atomic power stations and other. The listed objects should not be subjected attacks of the enemy party even when they represent «military objects if such attack can cause liberation of dangerous forces and the subsequent heavy losses among civilians» [18].

The analysis of the maintenance of the conventions accepted at the Second conference of the world, eloquently testifies that they were the accumulator of the ideas which have found in subsequent contractual fastening in a number of international legal documents - sources MGP that is acknowledgement of further progressive development MGP.

For example, in the Geneva report on application prohibition on war of suffocating, poisonous or other similar gases and bacteriological means of 1925, the Geneva conventions from August, 12th, 1949 about protection of victims of war, Additional reports to them I, II 1977 and Additional report III 2005, the Hague convention on protection of cultural values of 1954 and reports to it (Report 1954 and Second additional report 1999) Conventions on prohibition of manufacture and accumulation of stocks bacteriological (biological) and toksinnogo the weapon and about their destruction of 1972, the Convention on prohibition or restriction of application of concrete kinds of the usual weapon which can be considered putting excessive damages and having not selective action, 1980 and reports to it, the Convention on prohibition of working out, manufacture, accumulation and application of the chemical weapon and its destruction of 1993, the Convention on prohibition of application, accumulation of stocks, manufactures and transfers of antipersonnel mines and about their destruction of 1997, the Roman statute of the International criminal court of 1998 and so on - that is in all basic documents, concerning applications of methods and weapons of war.

Thus, the Second conference of the world of 1907 has had the big influence on the further perfection of norms on restriction of application of methods and weapons of war [19].

At the same time founders of the first international legal certificates about rules of conducting war understood, that is far not all questions, concerning maintenance of protection of armed forces of belligerent parties and civilians it is possible to resolve to the full. For definition of norms of conducting military actions great value the well-known reservation of known Russian international lawyer F.F.Martensa (1845-1909) that «in case of presence of" blanks »in legal acts the general principles of international law should operate has, laws of humanity and the requirement of public consciousness» 2.

Reservation Martensa has appeared so successful, that has entered into preambles of the Hague conventions 1899 and 1907, and then in item 1 (item 2) of Additional report I 1977: «Until that time when possibility to publish fuller code of laws of war will be presented, High Contracting parties consider pertinent to testify, that in the cases which have been not provided by decisions accepted by them, the population and at war remain under ohranoju and action of the beginnings of international law as they follow from the customs established between the formed people, from laws of humanity and

Requirements of public consciousness »1.

According to Z.Pikte, the main principles containing in the given reservation, it is possible to compare in a sense with «the skeleton of a live organism giving a support in unforeseen situations; they give full representation about whole and are easy for understanding...» [20 [21] [22]

Besides, F.Martens in the project of the Convention on laws and customs of the land warfare in the third chapter entitled «Means of drawing of harm to the enemy: permitted and unlawful», has formulated following position: «laws of war do not recognise behind unlimited authority belligerent parties in a choice of means to drawing

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Each other harm ».

As it was already marked, frequently in international legal certificates about unlawful methods and means of conducting military actions it is spoken in one context, without any differentiations. So, for example, in item of XXIII Hague position of 1907 it is a question as of the forbidden methods («to declare, that will be given nobody of mercy» (the item, and about the forbidden weapons of war («to use poison and the poisoned weapon» (the item.

In turn, absence of such differentiation has narrowed a circle of possibilities of law enforcement bodies in a question of qualification of the armed actions at war at application of the forbidden methods by them and weapons of war. In connection with development of scientific and technical progress in the at war states there was a possibility to bypass certain norms-interdictions by means of more perfect means.

For the purpose of an exception of such actions, there was a question of standard fastening of criteria of unlawful means of conducting military actions, at the introduction into the contradiction with which application of any new type of weapon would become illegal. However in practice to realise conceived during a life it has appeared uneasy enough for the reason that the establishment and acceptance of such restrictions in international legal certificates appreciably lagged behind creation and perfection of new generations of the weapon and combat material.

Having analysed norms MGP about restriction or prohibition of application of some weapons of war, it is possible to come to conclusion, that they contain a number of requirements by which belligerent parties should be guided in the generalised kind:

- Philanthrophy requirements stand above requirements of the parties in the course of war conducting;

- The states in military actions should be guided by the unique purpose which consists in easing of forces of the opponent;

- For achievement of this purpose in war it is enough to put out of action the greatest number of people, and it is not so obligatory to destroy them;

- Use of the weapon causing unjustified sufferings to the enemy or doing his death inevitable admits to the lawful purpose of conducting war contradicting;

- Application of the above-stated weapon contradicts philanthrophy requirements.

However approaches of the states, military, diplomats, scientific to definition of excessiveness of conducting war of harm put by concrete means and causings of excessive sufferings by them disperse.

The considerable contribution to specification of the list of the forbidden methods and weapons of war have brought the basic researches spent at the initiative of the International committee of the Red Cross [23].

So, throughout almost century the new certificates directed on regulation of laws and customs of war were accepted by the international community, operating rules were improved. For example, taking into account sad experience of the First World War, Geneva report 1925 it was forbidden to apply on war «suffocating, poisonous or other similar gases and bacteriological means» 1.

In 1929 in Geneva diplomatic conference where two international documents have been accepted has taken place: the Convention on improvement of a fate of wounded men and patients in field armies and the Convention on the reference with the prisoners of war [24 [25] [26] [27], supplementing positions of the Geneva conventions 1864 and 1906

But the most considerable changes in area MGP have occurred after the Second World War termination, to occurrence of modern international law. During military actions in 1939-1945 fascist aggressors roughly broke norms of the Hague conventions. Besides big legal "blanks" and defects in the field of the right of confrontations have come to light.

The idea of working out of Conventions of 1949 was put forward in February, 1945, i.e. even during war. Horrors of war and absence of the convention giving protection to civilians, have shown, it was how much important to eliminate a blank in business of protection of this category of persons. The idea was not new; so, already in 1934 at XV International conference of the Red Cross which were passing in Tokyo, MKKK has presented the concept project about position and protection of civilians - the citizens of the enemy power who are in territory of one of belligerent parties or occupied

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It of territory.

The diplomatic conference, taken place on April, 21st - on August, 12th, 1949 in Женеве1 and in which work representatives of 57 states have taken part, became the major mark in progressive development MGP. Upon termination of the given conference were the Final act on which the text of four conventions on protection of victims of confrontations was applied is signed:

1. The Geneva convention of 1949 on improvement of a fate of wounded men and patients in field armies (the Convention I 1949);

2. The Geneva convention of 1949 on improvement of a fate of wounded men, patients and persons, cast-away, from structure of armed forces on the sea (the Convention II 1949);

3. The Geneva convention of 1949 on the reference with prisoners of war (the Convention III 1949);

4. The Geneva convention of 1949 on protection of civilians during war (the Convention IV 1949);

The specified documents have considerably expanded sphere of action MGP. The general for all four conventions of item 3 became the present break in the named area as it has extended principles of the Geneva conventions and to not international confrontations.

Besides, «the Geneva right», unlike «the right of the Hague», the established rule of carrying out of military operations, has included the rights and interests of the military men who have failed, and also the persons who are not taking part in military actions.

In particular, the Geneva conventions of 1949 for the first time «forbid discrimination of the wounded men sick, prisoners of war, civilians to racial signs, colour of a skin, religion, political convictions, to use wounded men and patients for carrying out of medical experiences. In them norms about a legal protection the guerrilla, participants of resistance» 1 and so on for the first time have been fixed. However such distinction is gradually erased and created the complex mixed international law reflecting laws and customs of modern war [28 [29] [30].

Thus, two directions of the right, applicable in confrontations, - «the right of the Hague» and «the right of Geneva» - became so closely interconnected, that as it is considered, they have gradually formed the uniform difficult system known today as MGP. And positions of Additional reports 1977 reflect and

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Confirm uniform and many-sided character of this right.

The basic role of Russia in codification of laws and customs of conducting war is doubtless. Also the contribution Russian mezhdunarodnopravovoj sciences in formation of positions which regulate conducting military actions is obvious. Traditions and a peace orientation of Russian political thought have received the reflexion and the further development in works of international lawyers of second half XIX - the beginnings of XX centuries in which terrible cruelty of war and necessity of its replacement was marked by pacific means of the permission of state differences. Russian scientists also aspired legal means to limit cruelty of war, having put a limit for use of especially ruthless and inhumane means of violence and having forbidden its most severe forms.

Such visible scientists as F.F.Martens, D.A.Milyutin, B.E.Nolde, M.A.Taube, A.N.Mandeltam, V.M.Gessen and others took part in preparation and carrying out important for formation MGP of conferences (Petersburg 1868, Bruxelles 1874, Hague 1899 and 1907, London 1908-1909) and have brought the essential contribution to acceptance on them

Of some basic norms.

Therefore it is possible to approve, that, both working out of some positions in the theory, and the practical activities, concerning preparation and carrying out of various international conferences, Russian scientists promoted process of fastening by international law of many progressive norms, including in the field of МГП1. By the Czechoslovak lawyer G.Mentserom it has been fairly noted: «Suppressing

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The majority of rules of war has arisen in the end of XIX - the beginning of XX centuries »

On the basis of the above-stated it is possible to draw a conclusion, that MGP has rich history and has passed the big way from ancient custom before positions of the Geneva conventions of 1949 - bases modern MGP.

The international community constantly aspires to improve already existing norms directed on regulation of actions of belligerent parties in a confrontation, and also to accept the new international legal certificates directed on softening of severity of war that testifies to progressive character of development MGP. [31 [32]

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A source: Smirnova Alain Nikolaevna. PROGRESSIVE DEVELOPMENT of NORMS of the INTERNATIONAL HUMANITARIAN LAW About the FORBIDDEN METHODS And WEAPONS OF WAR. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2017

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