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2/49

VOLUME

35, NUMBER

1, WINTER

1994

The Legitimation of Violence:

A Critical

History

of the

Laws of War

Chris af

Jochnick*

Roger Normand**

Who controls the past controls

the future;

who controls

the pre-

sent controls

the past.

George

Orwell,

1984

I.

INTRODUCTION

A The

Gulf

War and the Promise of

Law

The forty-three-day war waged against

Iraq by the

United

States-led

Coalition (the

Coalition )

enjoys a

reputation as

one of

the cleanest

and most legal

wars in history. Despite evidence of disastrous long-

term

consequences

for Iraqi civilians, the image persists

of

a new

kind

of

war,

a modern,

high-tech

operation that decimated

the

opposing

military with minimal damage

to the surrounding population. Coali-

tion leaders

bolstered

this

image by

repeatedly

invoking international

law

in

order

to condemn

Iraqi conduct and to praise the restraint

exhibited

by the Coalition forces both in the actual combat

and

in the

events

preceding

it.

2

* J.D., Harvard Law

School;

Director of

Projects, Center for

Economic Social

Rights.

J.D.,

Harvard

Law School; M.T.S.,

Harvard Divinity

School;

Director

of

Policy, Center

for

Economic

Social Rights.

We wish

to

thank

the

John

D.

and

Catherine T. MacArthur Founda-

tion for its generous

support. We also

thank

Professor Richard Falk,

Professor Henry Steiner,

Sarah Leah Whitson, and

Mike

Eisner for their helpful comments on

earlier

drafts

of

this

article.

Finally,

we are

grateful

to the participants in the Harvard Study

Team

and International Study

Team human rights missions

to

Iraq

and to the

many people

in the United

States,

Iraq, and

Jordan who made these missions possible.

1. Colonel Raymond

Ruppert, staff

judge advocate for U.S. Central Command

and

General

H.

Norman

Schwarzkopf's

personal

lawyer during the conflict,

declared the Gulf War the most

legalistic war

we've ever fought. Steven Keeva,

Lawyers in the

War

Room

A.B.A.

J.,

December

1991, at 52.

2. See

MIDDLE

EAsT

WATCH

NEEDLESS DEATHS IN THE

GULF WAR:

CIVILIAN

CASUALTIES

DURING THE

AIR

CAMPAIGN AND

VIOLATIONS OF

THE

L WS

OF

WAR,

75-78

1991).

ee

also

DEPARTMENT OF

DEFENsE CONDUCT OF

THE

PERSIAN GULF WAR:

FINAL REPORT TO CON-

GRass Appendix

0

(April 1992

[hereinafter D.O.D. REPORT].


3/49

Harvard nternational

Law

Journal

Vol. 35

There is a critical

unspoken

assumption that gives

rhetorical

power

to

the

idea

of

a

legal war-specifically, that

a

legal war is more

humane

than

an illegal

war. A legal war connotes

a

war that is proper and just,

rather

than a

war

that

merely

complies

with a

set of technical guide-

lines. That the Gulf

War

is considered

to

be the

most

legalistic

war

ever

fought

adds

to its

image

as

a

just

and

relatively

humane

war.

This Article

challenges the notion that the laws of war

serve to

restrain or humanize

war. Examination of the

historical

development

of these

laws

reveals

that

despite noble

rhetoric

to the

contrary,

the

laws of war have been

formulated deliberately to

privilege

military

necessity at the

cost

of

humanitarian values.

As a

result, the laws

of

war have

facilitated

rather than

restrained

wartime violence.

Through

law, violence has been legitimated.

Viewed

from

this perspective, the

Gulf War

does not represent

the

dawn

of

a

hopeful new

age

of

international

law,

3

but

rather the

con-

tinuation

and

even

the

intensification of a

historical

trend to legalize

inhumane military methods

and their consequences. By obscuring

bombing behind

the

protective

veil

of justice, the laws

of war may

have increased the destruction in

Iraq. Despite

the Coalition's reputa-

tion

for targeting only military

sites, most independent

studies

have

put

the

civilian

death

toll

at

over

100 000

4

3

Within the

political mainstream of the

United

States,

both

conservatives and liberals

held

high hopes that the post-Cold War international

cooperation

displayed during the Gulf War

heralded

what

former

Secretary

of State James A. Baker III termed one of

those

rare transforming

moments in history... an era which

is full of promise

James A.

Baker

III, Address

to the

Los

Angeles

World

Affairs Council (October

29,

1990), v il ble

in

LEXIS,

Nexis

Library, Fednew.

A

representative article

in the A.B.A. JOURNAL,

exhibiting this optimistic spirit, proclaimed,

There is now a greater worldwide interest in the rule of

law

than at

any

time in recent memory.

Keeva,

supra

note 1, at 59. Nicholas Rostow, currently Special Assistant to the President

for

National Security Affairs

and

Legal Adviser to

the

National Security

Council, commented,

If

the

Cold War

has

indeed ended,

the international legal

disputes

that were

such an

important

part

of

that

war

may also have come

to a

close .... The

profound

changes

of recent years

should

permit the world community to test the ideas for

world

public order set

forth in the U.N. Charter

and

the

effectiveness

of the United

Nations

itself. Nicholas Rostow,

The

International

Ue

of

Force

After the Cold War, 32 HAsv.

INT'L

L.J. 411, 411

(1991).

4.

Beth

Osborne

Daponte,

a

demographer

with

the

U.S.

Census Bureau, estimated that

after

the

war's conclusion, 111,000 Iraqi

civilians

died from

war-related

health

effects

by the end

of

1991. Many of

these

deaths

are attributable to

Allied

bombing of

Iraq's

electrical

generating

capacity,

which

was needed to

fuel Iraq's sewerage

and

water

treatment system. Study Shoss Iraqi

Post-War Deaths GreaterThan Initially Thought, PR Newswire, Aug. 17, 1993, available n

LEXIS,

Nexis Library,

PR

News

File.

The

Census

Bureau

initially dismissed Ms.

Daponte for

releasing

earlier

estimates of Iraqi

casualties

but

later

reinstated

her.

Ageniy Reinstates

Tabulator

of Iraqi

War

Deaths, N.Y. TIMEs,

Apr.

13, 1992,

at A14.

Ms. Daponte's estimates are supported

by a

range

of other

studies.

See e.g. Harvard

Study

Team,

Public

Health in

Iraq After

the ulf WIr (May

1991) (predicting

170,000 children

under

five

will

die in the coming year from delayed

effects

of

the Gulf

Crisis. ) (relevant pages

on

file

with

the

Harvard

nternational Law

Journal ;

International

Study

Team, Health and Welfare in IraqAfter

the

ulfCrisis: An In-Depth Assestnmnt

(Oct.

1991) (predicting that

thousands of Iraqi children would die of

malnutrition

and disease)


4/49

1994 / CriticalHistory of the

Laws

of War

This

analysis

of

the

Gulf War underscores

the difficulty

of using

law

to

humanize war,

but

does not condemn the

effort

itself.

The

require-

ments

of global

security

and prosperity

in

an

interdependent world

may

yet

lead countries

to develop laws that

impose effective

humani-

tarian limits on

the

conduct

of

war.

In

working to achieve

such

limitations,

however,

it is

important

to understand

how

past

legal

efforts

to regulate war have often come

to sanction the

behavior they

were ostensibly

designed to

prevent.

B

Outline

of the Argument

The

purpose of

this

argument is

to provide

a

more realistic under-

standing of

the

relationship between law and

war as a

first

step towards

more

effective

wartime protection

for civilians.

The argument

is

pre-

sented in

two articles.

This, the

first

Article,

analyzes

the

historical

development

of the laws of war and

demonstrates

that

they have

been

formulated, and in fact have served,

to legitimate ever

more

destructive

methods of

combat. The second

Article, which will appear

in

the

next

issue of the

Harvard

nternationalLaw

Journal applies

this

analysis

to

the Gulf War

and concludes with

suggestions for realizing the humani-

tarian sentiments underlying

the laws

of war.

This

Article

is

divided into eight parts.

Part II

questions

the

tradi-

tional understanding

of

the

laws

of

war

as

a

restraint

on violence and

warns that

mystification of the law s

impact

adds

a

facade

of

legitimacy

to

existing wartime

practices,

undermining

more realistic

efforts to

limit war.

Parts

III-V sketch the

development of the laws

of war

from

ancient

times

through the

Hague Conferences

of 1899

and

1907.

These

sections argue that

the nineteenth century,

hailed

as

an

era

of

humani-

tarian progress

when war was subjected

to the

discipline

of legal

codification,

in fact firmly

established

the priority

of

military

over

humanitarian

concerns. Parts

VI

and

VII support this

contention by

reviewing

the actual

role

played

by

the

laws

of

war during the World

Wars and

the Nuremberg

Trials. This

review

demonstrates

how

the

rhetorical use

of law by all belligerents in the

World

Wars to justify

terror

attacks

against

civilians,

and the

refusal to

condemn

such

attacks

at Nuremberg, underscore the

law s capacity

to

legitimate

rather than

restrict

wartime violence.

relevant pages on file with the Harvard International

Law

Journal ;

Joint WHO/UNICEF Team

Report Visit

to Iraq Feb. 16-21 1991

U.N. SCOR, U.N. Doc.

S/22328

1991);

Alberto

Ascherio et

al.,

Special

Article:

Effect

of

the Gulf

War

on

Infant

and

Child

Mortality

in Iraq

327

NEw ENG. J. MED. 931

(1992);

.

Lee

A.

Haines, Health

osts

of the Gulf

War 303

BRiT. MED.

J. 3 3

(Aug.

3 1991).


5/49

Harvard

nternational

LawJournal

Vol. 35

II.

INTRODUCTION

TO

THE

LAWS OF WAR

A.

Background

Before examining traditional views of the relationship between

law

and war,

it

is necessary

to

become

familiar with

the

basic

terminology

and principles

behind

these

laws. International jurisprudence makes

a

distinction between laws governing the

resort to force

]us

ad belhm)

and laws regulating

wartime conduct

jus

in bello .5Jus in

belo is further

divided into the Geneva laws (the

humanitarian

laws ), which protect

specific classes of

war victims such

as prisoners of

war),

and

the Hague

laws (the

laws of

war ), which regulate the overall means and

methods

of

combat.

6

The

differences

between the Geneva

laws and

the Hague

laws reflect

the interests of

those nations that

dominated

the

international

confer-

ences

where

these

laws

were drafted.

7

While the Geneva laws are

characterized by strict,

non-derogable

prohibitions,

8

the Hague

laws

5.

See, e.g.,

SYDNEY

D. BAILEY,

PROHIBITIONS

AND

RESTRAINTS IN WAR 1972); GroFFREY

BEST

HUMANITY

IN

WARFARE:

THE MODERN HISTORY OF THE INTERNATIONAL L W OF ARMED

CONFLICTS

(1983).

Examples offjts

d bellum

include

the Pact of Paris,

or Kellogg-Briand Pact,

and

the

U.N.

Charter. The former

condemns

the use of war as an instrument

of

national

policy.

The

General Treaty for

the Renunciation

of

War, Aug. 27, 1928, art. 1, 46 Star. 2343, 94

L.N.T.S. 57 [hereinafter Kellog-Briand Pact].

The

latter

bars the

threat

or use of force against

any state. U.N. CHARTER art. 2, pars. 4.

6. The Hague

laws were drafted

at the

turn

of the

20th

century. See

Convention \ ith

Respect

to the Laws

and Customs

of

War

on Land,July 29,

1899, 32

Stat. 1803 1

Bevans 247 [hereinafter

1899

Hague

Convention]; Convention Respecting

the Laws

and Customs

of

Wat on Land,

Oct.

18

1907, 36 Star. 2277,

1 Bevans 631 [hereinafter 1907 Hague Convention].

The

Geneva laws

derive from

several

later treaties including: Convention for the Amelioration

of

the Condition of

the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S.

31; Convention for the Amelioration of

the

Condition

of Wounded, Sick

and

Shipwrecked

Members

of Armed Forces at Sea, Aug. 12, 1949,

6 U.S.T. 3217,

75 U.N.T.S. 85;

Convention

Relative to the Treatment of

Prisoners

of War, Aug. 12,

1949, 6

U.S.T. 3316, 75 U.N.T.S.

135;

Convention Relative

to the Protection of

Civilian Persons

in

Time

of

War, Aug. 12, 1949,

6

U.S.T.

3516, 75 U.N.T.S. 287. In 1977,

the

Geneva Conventions were

supplemented by

two

Additional Protocols: Protocol I

Additional to

the

Geneva

Conventions

of 12 August

1949,

Relating to the Protection of

Victims

of International

Armed Conflicts,

Dec. 12,

1977, 1125

U.N.T.S.

3,

16

I.L.M.

1391; Protocol

11 Additional to the Geneva

Conventions

of 12

August

1949,

Relating to

the

Protection of

Victims

of Non-International

Armed Conflicts,

Dec.

12,

1977, U.N. Doc. A/32/144. Protocol I modified provisions of

the

Hague laws

to restrict certain

customary practices. See

W.

Hays Parks, Air War and the

Law of War,

32 A.F

L.

REV. 1

94-225.

These modifications,

however, were rejected

by the United

States (which has refused to ratify

the

Protocol) and their

efficacy

has

yet

to be tested on the battlefield. See id at 222-24;

Leslie H.

Gelb,

War Law

Pact Faces

Objection

ofJoint

Chiefs, N.Y.

TIMES, July

22,

1985,

at

Al. The

Hague

Conventions

of

1899

and

1907

thus

remain

the driving

force behind

the current laws of

war.

The attempt

to

move beyond the

Hague laws,

represented

by the recent Protocols, will be

more

fully discussed in the subsequent Article.

7 See,

eg.,

C.P. Phillips, Air Wafare and Law, 21 GEo. WASH. L. REV. 395 1953); Parks,

supra note 6.

8.

The

effectiveness of

Geneva laws can

be attributed in

large part

to

the fact

that

they serve

the

interests of

the

more powerful nations. For instance, Geneva

laws prevent weaker

states

from


6/49

1994

CriticalHistory of the Laws of War

are

vaguely

worded

and

permissive,

enabling powerful

states

to

use the

latest

military technology with little regard for humanitarian conse-

quences.

9

This

Article focuses on

the

Hague laws; the

legal

regime

that

is least effective and at the same

time most critical to the protection

of

civilians (hereinafter, the

term laws

of

war will refer only to

the

Hague

laws).

The

common rationale for the

laws

of

war is the

desire

to humanize

war

by balancing

military necessity with

concerns

for

humanity. The

fundamental principles

behind

these laws, distinction and

proportion-

ality, revolve around the need

to maintain this balance.

10

The principle

of

distinction

requires belligerents to distinguish between

military and

civilian

targets, and to attack

only

the

former.

The principle

of

pro-

portionality

requires belligerents to refrain from causing damage

dis-

proportionate

to the military

advantage

to

be

gained.

It

is

important to

understand

that

the

development of these

legal

principles

did

not

introduce restraint

or

humanity into war. War has

long been limited largely by factors

independent

of

the law. For com-

plex military,

political, and economic reasons,

belligerents tend to use

the minimal

force

necessary

to

achieve their

political

objectives.

Force

beyond that

point-gratuitous

violence-wastes resources,

provokes

compensating

for military

disadvantage by

threatening to mistreat

enemy

soldiers

and civilians.

Iraq's threats

to

mistreat

Coalition civilians

and

P.O.W.s,

ultimately

abandoned after strong

international condemnation,

represented

just

such an

attempt to

overcome its

relative

military

weakness. ee John Kifner, Confrontation in the

Gulf,

N.Y

TIMES

Aug. 19 1990 1, at

1. The

desire

of powerful

nations

to deter such

practices, in addition to the public

outrage

against

the

Holocaust and related atrocities,

led to the prohibitions

protecting

war victims embodied

in

the

Geneva Conventions.

See

g.,

Convention orhe Amelioration of

he Condition of the

Wounded

and

Sick in Armed

Forces

in the Field, Aug. 12, 1949, supra note

6

art.

3, 6 U.S.T. at 3116-18

75 U.N.T.S.

at 32-34;

Convention

for

the Amelioration of the Condition of Wounded,

Sick

and

Shipwrecked Members of Armed

Forces at Sea, Aug. 12, 1949, supra

note

6, art.

3, 6 U.S.T.

at

3220-22 75 U.N.T.S. at 86-88; Convention Relative

to the

Treatment

of Prisoners of War, Aug.

12,

1949, supra

note 6,

art. 3,

13 6 U.S.T. at

3318-20

3328, 75

U.N.T.S. at

136-38

146;

Convention

Relative to

the

Protection

of

Civilian

Persons

in

ime

of

War, Aug. 12,

1949,

su r

note

6,

art.

3

6 U.S.T. at

3518-20

75

U.N.T.S.

at 288-90.

9. See William V. O'Brien, The

Meaning

of Military

Necessity in International

Law, I

WORLD

POLtrY 109

(1957) [hereinafter

O'Brien, Military

Necessity];

Myres S. McDougal Florentino P.

Feliciano,

International

Coercionand WorldPublic

Order:.

The General

Principlesof the Law of War, 67

YALE L J

771,

810

(1958).

10. See generally JE N PscrEr, DEVELOPMENT

AND PRINCIPLES

OF

INTERNATIONAL HUMANI-

TARIAN

LAw (Nijhoff Publishers ed.

trans., 1985)

(1982).

11.

This reflects the traditional understanding,

articulated by

Karl

von

Clausewitz,

that

war

is the

extension

of

politics

by other means.

As such,

the

rules

of politics

apply

in war, albeit in

modified form:

The smaller

the

sacrifice we demand

from

our adversary, the

slighter

we may

expect his

efforts to be to refuse it to us. The

slighter,

however,

his

effort the

smaller need our own

be. Furthermore, the less

important our political

object,

the less

will

be the

value

we attach

to

it and the

readier we shall

be to

abandon it.

KARL VON

CLAUSEWTZ ON WAR 9

O.J.Marthijs Jolles

trans., 1943). See also

PicEr, supra

note 10 at 31.


7/49

Harvard

International

Law

Journal

/

Vol.

35

retaliation,

invites

moral

condemnation,

and

impedes post-war

rela-

tions

with

the

enemy nation.

12

These

concepts

are

embodied

in the

time

honored

military

concept

of

'economy

of

force',

of

which,

ac-

cording

to former

Chairman

of

the Joint

Chiefs

of Staff,

General

George

S.

Brown,

[the

law

of

'proportionality'

is simply

a

legal

restatement. 13

The

crucial question

then

becomes

whether

the

laws of

war

actually

limit

military

conduct

beyond

the

inherent

restraints

dictated

by

nar-

row military

self-interest.

And

if not,

what

purpose

do they

serve?

B.

The Role

of Law in

War

To most,

law and

war

occupy

mutually

exclusive

terrain.

As Cicero

wrote, interarma

silent

leges

(in time of

war

the

law is

silent).

14

Law

implies

order

and restraint;

war

epitomizes

the

absence

of both.

It

is

precisely

when

the

legal

system fails

that conflict

turns

to violence.

12.

One

military

commentator

has noted, It

is

very

dubious whether

most of

the atrocities

committed

and threatened

in

recent

wars have not

been military

blunders.

Atrocities

em itter

and

threats

frighten

the

enemy population

into

prolonged

resistance.

Decent treatment

of pris-

oners

encourages

surrender.

ERNST H. FEILCHENFELD,

PRISONERS

OF WAR

97 (1948).

This

point

is borne

our by

a

cursory

examination

of World

War

II.

German

treatment

of

civilians

in

occupied

territory

during

World

War

II

spurred

active

resistance, making

these areas

harder

to

control.

See

McDougal

&

Feliciano,

supra

note

9,

at 812.

The history of terror bombing

an d

oppressive

occupation

policies

reveals

that

these

policies

are

frequently

counterproductive.

ee e.g.,

ALEXANDER

DALsN,

GERNMA

ULE IN

RussIA,

1941-1945

70-75

(1957); William

V. O'Brien,

Legitimate

Military

Necessity

in

Nuclear

War,

2

WORLD

POLITY

35

56-58 (1960).

ut see

THiu

UNITED

STATES

STRATEGIC

BOMBING

SURVEY,

SUMMARY

REPORT

EUROPEAN

WAR),

at

11-12

in THE

UNITED

STATES STRATEGIC

BOMBING

SURVsYS

(Air

University

Press

ed.,

1937

(1945)

[hereinafter

BOMBING

SURVEY)

(stating

that

studies

show

that the

morale of

the

German

people

deteriorated

under

aerial attack

owever,

dissatisfied

as

they

were

with

the

war,

the

German

people

lacked

either the

will

or

the

means to make

their

dissatisfaction

evident. )

13. DEPARTiENT

OF

THE

AIR

FORCE,

JUDGE

ADVOCATE

GENERAL

ACTIVITIES:

INTERNA-

TIONAL LAW-THE

CONDUCT OF

ARMED

CONFLICT

AND AIR

OPERATIONS

1-12

(1976) Sre

also

McDougal

& Feliciano,

supra

note

9, at 811-13;

W.T.

Mallison, Jr.,

he Laws

of War

ad t

Juridical

Control

of

Weapons

of

ass

Destruction

in

General

and

Limited

Wars

36

GEO

WASH.

L.

REV. 308,

314-315

(1967); JEAN

PICTET,

HUMANITARIAN

LAW AND

THE

PROTECTION

OF WAR

VI sS 30

(1975).

Robert

E Osgood offers the

following definition

of the

principle

of economy

of force:

It

prescribes

that

in

the

use of

armed force

as an

instrument

of

national

policy

no greater

force should

be

employed

than

is necessary

to

achieve

the

objectives

toward which

it

is

directed;

or

stated

in

another

way, the

dimensions

of military

force

should

be proportionate

to

the

value

of the

objectives

at

stake.

ROBERT

E OSGOOD,

LIMITED

WAR: THE

CHALLENGE

TO

AMERICAN

STRATEGY

18

(1957). This

principle

coincides

almost

exactly

with

the principle

of military

necessity,

which

has

provided

the

foundation

for

the

laws

of

war.

Military

necessity

onsists

in

all

measures

immediately

indispensible

and

proportionate

to

a legitimate

military

end,

provided

they are

not prohibited

by

the

laws

of

war

or by the natural

law,

when taken

on

the decision of a

responsible

commander,

subject

to

judicial

review.

O'Brien,

Military

Necessity,

supra

note

9,

at

138.

14. Quoted

in

QUINCY WRIGHT,

A

STUDY

OF

WAR 863

(1965)

(citation

omitted).


8/49

1994

Critical

istory

of the

Laws

of War

Law may act to deter war, but it

has no

practical

role

once

the fighting

has

begun.

1

5

Yet, attempts

to regulate war

are

as old as war itself. From

ancient

societies

until

today, nations

have

purported to

limit the conduct of

war

with

legal

codes. Proponents

of such

efforts assume that

bringing

war

within

the

bounds

of

rational

rules

may

somehow

humanize

war

and

contain its

brutalities.

The

history

of

war, however, reveals that

the

development

of a

more

elaborate legal

regime

has proceeded apace

with

the

increasing

savagery

and

destructiveness

of

modern

war.

16

Nonetheless,

succeeding

generations continue to

call for

more

laws,

without

examining, or

even

understanding, the nature of the

legal

structure upon which

they

place

their

humanitarian hopes.

This

apparent

paradox

may

be

explained,

albeit in

simplified

form,

by the

different interests

and

motives

of

those

who

call

for

laws of

war

and those who formulate and

implement

such

laws. To

the

general

public,

the

laws

of

war should

address

our

humanitarian aspirations

and impose some

form

of

restraint,

even if

minor, on

the forms

that

war may

legitimately

take. Perhaps the

foremost

international

jurist of

his time,

Hersch

lauterpacht

makes this

clear:

We

shall utterly fail

to

understand

the

true character

of

the law

of

war

unless

we

are

to

realize

that its purpose is almost entirely

humanitarian in the

literal

sense of the

word, namely to prevent

or

mitigate

suffering

and, in

some

cases,

to

rescue life

from

the

savagery of battle and passion.

This, and

not

the

regulation

and

direction

of

hostilities,

is

its

essential

purpose.'

7

Given this

motivation,

it is

not

surprising

that public agitation for

legal regulation

tends

to be

renewed

on

the heels of war.'

8

As Michael

15.

General

MacArthur

was fond of

saying, You

can't

control

war;

you can

only abolish it.

Phillips, supra note 7 at

421. Most scholars

dispute

this

simplistic

division between law and war.

War need not be viewed as distinct from peace, but

rather, [i]t

is more

realistic in the light of

the

complex

and multifarious nature

of

international

conflict

to regard war

as

the upper extremity

of

a

whole scale of international conflict

of

ascending

intensity

and

scope.

OsGooD,

supra

note

13,

at

20. See also

Philip

C.

Jessup, Should International

Law

Recognize

an

IntermediateStatae Between

Peaceand War?

48 Ams

J. INT L L. 98 (1954). Accordingly, it makes little sense

to

speak

of

an

abstract point beyond which there is no law. See generally DAviD KENNEDY,

INTERNATIONAL

LEGAL

STRUCTURES 417-482 (1986).

16.

See eg. WRIGHT sUpra

note

14

at 370-71 (noting

the

increasing severity

of war ; BEsT,

supra note

5,

at

57-59.

17.

Hersch Lauterpacht,

The Problem

of

the Revision of the Law of War 1952

BRIT.

Y.B.

INT L

L. 360 363-64. Similarly,

Josef

L. Kunz

emphasizes

that the

whole

law

of

war, including

the

norms

regulating its actual conduct, is

humanitarian in

character; it is

in

the

truest

sense

a part

of the law for

the

protection of

human rights.

Josef

L. Kunz,

The

Laws of War 50 Am'. J. INT L

L.

313, 322

(1956).

18. See

WRIGHT supra

note 14

at 1079 (cataloguing the

peace movements

following

conflicts

from

ancient

times

through World War I).


9/49

Harvard nternationalLawJournal

Vol 35

Walzer

comments, [wlar is so awful

that

it makes us cynical about

the

possibility of

restraint,

and

then it is so much

worse

that it makes

us indignant at

the

absence of restraint.

19

Thus,

the

Hague

Peace

Conferences followed a half century of intensifying conflict

among the

emerging

European

nation-states in the

nineteenth century; the League

of

Nations and Kellogg-Briand Pact (which

unsuccessfully

sought

to

ban war

outright) followed World War I; the

Geneva

Conventions

followed World War II;

and

the 1977 Protocols to these Conventions

followed the Vietnam

War.

Yet the noble sentiments that

prompted

this expansive body of

laws

have only

selectively penetrated the substance

of the laws themselves.

Notwithstanding public pressure

to limit the horrors of

war, the

diplomats who negotiated the laws and the soldiers who implemented

them structured a

permissive

legal

regime. Despite the

humanitarian

rhetoric, military

concerns

have

dictated the substantive content

of

the

laws

of war.

National

governments, conceiving their sovereign

interests

narrowly,

have

proven unwilling

to accept

any

restrictions,

legal

or otherwise

on

their

ability

to deploy

the

level of

military power they deem necessary

to uphold national security.

20

The structured impotence

of the laws

of

war

illustrates a

variation

of the prisoners' dilemma : what

makes

sense for the

world,

collectively, appears

different when

viewed through

the prism of national self-interest.

C

The

Legitimating

Role of Law

While the

laws

of

war

impose

no

substantive

restraints

on pre-ex-

isting

customary military practices

they nevertheless

have an

impact

on war.

The mere

belief

that

law places

humane limits on war,

even

if

factually

mistaken,

has

profound

consequences for the way

people

view

war and therefore the way

that war is

conducted.

The credibility of

laws of

war

lends unwarranted legitimacy to

customary military

prac-

tices.

Acts sanctioned

by

law

enjoy a

humanitarian

cover

that helps

shield them

from criticism. As

one

commentator warned [p~recisely

because aggression

in its crudest form

is now

so

universally

con-

demned, many of the assaults that

are

made will be dressed

up in some

more

respectable

garb

...

[Blecause public

opinion

is

itself

so

con-

19.

MICHAEL

WALzER

JUST AND UNJUST WANS:

A MoRAL

ARGUMENT WITH

HisTOrIcAL

ILLUSTRATIONS 46

(2d

ed.

1992).

20.

Summarizing

this frequently-stated

concern, one military historian has

noted

that [ ]n

the simplest terms, nations do

not

legislate self-denying restrictions on those weapons

and

techniques

that they

judge

their survival to depend upon. Townsend Hoopes, Conments

n

W

AND RESPONSIBILITY

N

WARFARE:

THE

VIETNAM EXPERIENCE

142

(Peter

D.

Trooboff ed.,

1975 [hereinafter LAw

AND RESPONSIBIMTY].


10/49

1994

/

Critical

History

of

the

Laws of

War

fused, aggression may secure its fruits without paying

the

deserved

penalty in international

goodwill.

21

The respectable garb with

which

belligerents

have dressed their assaults is precisely the laws

themselves. By legitimating conduct, the

laws serve

to promote

it.

Law

legitimates

conduct on two levels. Because people generally

view compliance

with

the

law

as

an

independent

good,

acts

are

validated by simply

being

legal. In particular, sovereign conduct that

complies

with the

law will

appear

more legitimate than that which

violates it.

22

Nations

acknowledge the power of this form of legitima-

tion

by seeking

to

explain

their actions

by reference

to

law.

23

According

to a

former

Legal

Advisor

to the U.S.

State

Department, [llegal

justification

is

part

of

the

over-all

defence

[sicl

of

a

public

decision.

24

Proponents

of Critical Legal

Studies

( CLS )

25

identify a

deeper sense

of

legitimation.

26

They argue

that

law functions ideologically to both

reinforce shared

values and

to

impress upon people

a sense of obli-

gation to the existing

order.

27

More than simply supporting or deter-

ring a

particular

act, law influences

the public

perception

of

an

act

by

imbuing it with the psychic trappings of lawfulness.

In

this way,

law

helps

condition people to

accept

the

prevailing

distribution of

social

and political

power,

which in

turn

reinscribes

its

hierarchies

into

the

law. These effects are by their

nature

hidden;

the

contingent, malleable

power

relations

that

produce

law are made

to

seem natural,

neutral,

and inevitable.

28

In

essence, this legitimation theory involves a two

21. EVAN LUARD, PEACE AND OPINION 53

(1962).

See

generally id.

at

51-68.

22. See

generally

ROGER

FISHER

INTERNATIONAL

CONFLICT

1969);

Louis HENKIN,

How

NATIONS

BEHAVE

(1968); Thomas M. Franck, Legitimacy in

the InternationalSystem

82

Am.

J.

INT'L L.

705

(1988).

23. See

HENKIN,

sipra

note 22, at

31-41.

24.

Abram

J

Chayes,

The

uban

Missile

Crisis in INTERNATIONAL LAW: A CONTEMPORARY

PERSPECTIVE

340,

344

(Richard A. Falk et

al.

eds., 1985). Chayes's reflections

on this

crisis

emphasize

the importance

of

legitimating U.S.

conduct under

international law.

25. For background reading on critical legal thought, see generally TH POLITICS O LAW: A

PROGRESSIVE CRITIQUE (David Kairys ed., 1982); CRITICAL LEGAL STUDIES (Allan C. Hurchin-

son ed.,

1989).

26

See

generallyRobert

W.

Gordon,

Critical

Legal

Histories 36

STAN. L. REV.

57 93-95

(1984).

27

This

perspective

maintains

that

law legitimates certain acts not

only

on

a

concrete and

conscious level, but more

importantly

on a deeper, psychic

level

where people's beliefs are formed

and molded,

the

legal system is

an important public

arena

through

which the State attempts-

through

manipulation

of symbols, images and ideas-to legitimize

a

social

order

that most

people

find alienating and inhumane. Peter Gabel & Paul Harris, BuildingPower and

Breaking Images:

Critical

Legal

Theory and

the

Practice of

Law

11 N.Y.U. REV.

L.

& SOC.

CHANGE 369,

370

(1982-83).

28. CIS

uses the

term reification to describe the

process whereby

belief

in law

limits

one's

ability

to analyze

or

even perceive

the

social injustice of existing institutional arrangements by

investing

these

institutions with

a

quality of inevitability: [Ilaw, like religion and television

images, is one of these

clusters

of

belief

hat convince

people that

all the

many hierarchical

relations in

which they

live

and work

are natural

and necessary. Robert

W. Gordon, New

Developments

in

Legal

Theory in

THE

POLITICS O

LAW: A PROGRESSIVE

CRITIQUE,

supra

note 25,


11/49

Harvard

nternationalLaw

Journal Vol.

35

stage

process in which law

is internalized as belief and

belief leads

to

compliance.

Whereas

national

law

legitimates the

domestic

social

order

the

international legal regime reflects

and reifies

the status rights and

obligations

of

states.

29

Here

again law operates to shape

discourse

and

lends credence

and inevitability

to existing arrangements.

30

In the

context

of

war, the basic fact that nations

purport

to respect

the

rule

of law

helps

protect the entire structure of war-making

from

more

fundamental challenges.

While

the

laws themselves speak to

sovereign

nations

their psycho-social

effects

are visited

upon

the public at

large.

A

critical understanding

of

international

law

compels a

reevaluation

of

the

role of

law

in deterring

wartime

atrocities. By endorsing military

necessity without substantive limitations

the laws of

war

ask only that

belligerents

act in

accord with

military self-interest.

31

Belligerents

who

meet this

hollow

requirement receive in return

a powerful rhetorical

tool to protect their controversial conduct from

humanitarian chal-

lenges.

3

2

The notion that

humanitarian

rhetoric

can

subvert its

stated

purpose

raises several important

questions: How

does the legal

hierarchy

of

at 287. See also

Peter

Gabel Jay

1A

Feinman ontract

Law as Ideology

in

THE PouTrcs

LAW:

A PROGRESSIVE CRITIQUE,

supra note 25 at 172-78.

29. Customary

practices which

generally include

the

power of sovereign

nations to control

the

day-to-day

lives

of

their inhabitants, are harder to challenge when

ratified

by law.

A

quick

look at

the 'rules' of

international law

shows why governments love international law

International law

confers

authority

to control

entry

and

exit,

to establish

police

control,

to

determine

economic structure,

to tax,

to regulate, and to

reinforce

in many

other ways the power

and legitimacy of government. Phillip R. Trimble, Review Essay:

International aw

World

Order

andCritical

Legal Studies

42 STAN

L. REv. 811 833 (1990).

30. International

law

legitimates

the

hierarchies

through which power is presently

distributed:

In

a society

in

which power is

the

overriding consideration

it is the primary function

of law

to

assist

in

maintaining the

supremacy

of force

and

the hierarchies

established

on the basis

of

power and to

lend to

such a system the

respectability and

sanctity of law.

In a variety of

ways, international law serves these purposes.

GEORG SCHWARZENBERGER, POWER POLITICS: A STUDY OF INTERNATIONAL SoCIETY

203

1951).

31.

Hays

Parks, Special Assistant

for

Law and War Matters

in

the

Office of

the Judge Advocate

General

of the

U.S. Army, underscores this point:

Lots

of

people came out

of

Vietnam

thinking

things were illegal when

they

were not

It

has

been very important to get commanders to

realize

that there's

a crucial distinction

between political

decisions and

the law.

I've given hundreds of lectures on how we

could

have

done in Vietnam

everything we

did

in Iraq,

but

that policy, not law, restricted us.

Keeva, supra

note

1

at

56-57.

The Department

of

Defense concluded at the end of the

Gulf

War: Adherence to

the law

of

war impeded neither Coalition

planning

nor

execution; Iraqi

violations

of

the law

provided

Iraq no advantage.

D.O.D. REPORT,

supra note

2, at

632.

32. The effectiveness

of

the law in this

respect

has not

been lost on military lawyers. One

journalist, after

interviewing many

of

the Pentagon's top lawyers following the

Gulf

War,

concluded

that

the commanding officers

have

come to realize

that,

as in the

relationship

of

corporate

counsel

to

CEO, the

JAG's

(military

law officer's]

role

is not to

create obstacles,

but

to

find legal ways

to

achieve his

client's

goals--even

when those goals are to blow things up and

kill people.

Keeva,

supra note 1, at 59 .


12/49

1994

Critical

History

of

the Laws

of War

sovereign

over individual

interests

affect

the perception

of war?

How

does

legal

language

influence

popular

attitudes

towards

wartime

vio-

lence?

How does

the

law s

sanction

affect

public

support

for

military

conduct?

Do

these

effects

translate

into more

or less

public

pressure

on

belligerents

to

adhere

to

humanitarian

standards?

These

questions

have

no

clear,

empirically

based answers.

33

However

the

importance

of public

support for

war

coupled

with

the

growing

stature

of

international

legal

rhetoric,

validates

the search

for a critical

understanding

of the

legitimating

effects of

law.

Moreover,

the

capacity

of

the laws

of war

to

subvert

their

own

humane

rhetoric

carries

an

implicit

warning for

future

attempts

to

control

wars:

the promotion

of

supposedly

humane

laws

may

serve

the

purposes

of unrestrained

vio-

lence

rather

than

of humanity.

III. THE

LAWS

OF

WAR

IN

HISTORY

A. The

Continuity

of Past

and Present

Laws

of

War

1.

The

Modern

View

Modern

legal scholars

generally

adhere

to the view

that

past

societies

conducted

wars

without

law,

leaving

the strong

free

to devastate

the

weak.

3

4

According

to

this view,

as civilization

progressed

through

the

Enlightenment, the

laws

of

war balanced

the traditional

demands

of

military

necessity

with

developing

considerations

of

humanity.

This

process

culminated

in the

codification

of

the

modern

laws

of war

in

the

nineteenth

century,

which

supposedly

achieved

a decisive

humani-

tarian advance

from

earlier

custom

and practice,

bringing

the

horrors

of

war

under

the

rule

of

law.

3

5

This standard

view

denies

and

distorts

the

historical

record.

In

fact,

belligerents

throughout

history

have

created

and

recognized

war

codes.

These

laws,

like

the

modern

laws

of

war failed

to impose

humanitarian

33. The

effects

of

legitimation

are

almost

impossible

to measure.

See

Alan

Hyde,

The Concept

of Legitimation

in the

Sociology of

Law

1983

Wis.

L.

REv.

379,

426

(1983)

(arguing

that

[rthe

concept

of

legitimation

has

no

clear

operational

meaning,

nor

agreed[-]

upon

empirical

referent. ).

But

see

Gordon,

supra

note 26,

at 92

n.85

(recognizing

legitimation

as

a

general

explanatory

tool).

34. See

e.g.

RICHARD

I.

MILLER

THE

LAW OF

W R (1975).

Jean Pictet,

a

prominent

scholar

with

the

International

Committee

of

the Red

Cross

noted

that [i]n

the

earliest

human

societies,

what

we call

the

law of

the

jungle generally

prevailed;

the

triumph

of the

strongest or

most

treacherous

was followed

by monstrous

massacres and

unspeakable

atrocities.

PicrEr,

supra

note

10,

at

6.

35.

See e.g.

PicrEr

supra

note

10,

at

25-27;

HILAIRE

MCCOUBREY,

INTERNATIONAL

Hu-

MANITARIAN

LAw

1-21

(1990);

GUZ HERCZEGH,

DEVELOPMENT

OF INTERNATIONAL

HUMANI-

TARIAN

LAW 56-83

(Lajos

Czank

ed.

Sandor

Simon

trans., 1984);

ROBERT

EMMErT

MOFFIT,

MODERN

WAR

AND

THE

LAWS OF

WAR

(1973).


13/49

Harvard

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Law

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/ Vol.

35

limits

on military

action.

By

ignoring

these consistent

historical

trends,

the

modern

view

falsely

promotes

the

present

laws

of

war

as

a

humanitarian

break from

the

savage

past.

2. Ancient

Legal

Codes

A

cursory

review

of

history

contradicts

the

view

that

ancient

wars

were

lawless.

36

Ancient

societies

had

legal

codes with

humanitarian

provisions

similar

to those

found

in

the modern

laws of

war,

including

requirements

that

belligerents

distinguish

between

combatants

and

civilians,

spare

prisoners

of

war,

and

avoid inflicting

undue

suffering.

37

However,

these

legal

standards

failed

to

prevent

the frequent

commis-

sion

of

wartime

atrocities.

38

B.

Laws

of

War

Before

the

Modern

Era

The

modern

laws

of

war

claim

precedent

in

the

chivalric

practices

ofMedieval

Christian

Europe.

A more

critical

view

of

this

era, however,

finds

the

same

coexistence

of

law

and

atrocities.

39

The

development

of

the

just

war

doctrine

in

the

Middle

Ages

dovetailed

neatly with

the

standard

medieval

practice

of

slaughtering

the

enemy.

40

Only

when its

36.

See ag.

WRIGHT,

supra

note 14,

at 101 65

37.

In

the

second

millennium

B.C.,

the

wars

between Egypt and

Sumeria

were

governed by

a complex

set of

rules

obligating

belligerents

to

distinguish

combatants

from civilians

and

providing

procedures

for declaring

war,

conducting

arbitration,

and

concluding

peace

treaties.

See

generally

PicrET

supra

note

10, at

7-8;

1

THE

L W

OF WAR:

A DocubIsNTARY

HISTORY,

3-15

(Leon

Friedman

ed., 1972)

[hereinafter

DOCUMENTARY

HISTORY].

The Hindu

civilization

in

India

produced

the Book

of Mann

whose

regulations

of land

warfare

parallel much

of the

Hague

regulations

of

1907

on

the

laws

and

customs

of

war. Its

provisions

prohibit

use

of

weapons

that

cause

undue

suffering

and

killing

of unarmed

combatants

and

civilians:

let him

not

strike...

one who

is

naked, nor one

who

is disarmed,

nor

one

who

looks

on without

taking

part in the

fight.

Id at

3 (quoting

Book of

Manu

bk.7,

art. 92).

Chinese

warlords

adhered to

a customary

framework

of chivalric

rules designed

to

spare

the

innocent,

including

civilians

and

prisoners

of

war.

See

SUN

Tzu,

THE ART

OF

WAR

76 (Samuel

B. Griffith

trans.,

1963).

The

Israelites

also

recognized

clearly

prescribed

laws

of

war.

See

Deuteronomy

20:13-17

(King James). Ancient Greeks

and

Romans

also followed

customary

laws of

war.

See

DOCUMlENTARY

HISTORY,

spra

at

5.

38.

See

3 HUGO

GRoTIUs,

THE

RIGHTS

OF

WAR

AND

PEa.CE 323-33,

359-64

(A.C.

Campbell,

trans., 1901)

1625); Wright,

supra

note

14, at

872-75.

39.

As

the

Church

grew to

exercise state

power

in Europe,

it

abandoned

its

early commitment

to pacifism.

See e.g.

WiLmL M

BELCHOR BALis,

THE LEGAL

POSITION

OF

WAR: CHANGES

IN

ITS

PRACTCE

AND

THEORY

FROM

PLATO

TO

VATTEL

58-59

(Garland

Publishing,

Inc. 1973)

1937).

40.

See

e.g.

Arthur

Nussbaum

Just

War A Legal

Concept

42

MICH. L.

REv.

453,

455-467

(1943); Joachim

von Elbe, The

Evolution

of the Concept

oftheJnst War

in International

Law

33

AMt.

J.

INT L

L.

665

(1939).

Thomas

Cajetan,

master

general

of the

Dominicans,

held

that,

injuries

caused

not

only to

the combatants

but

even

to other

members

of the

state

against

which

one

is

waging a

just

war,

are free

of

guilt

.... One

is

not

obliged to determine

if

some

citizens

are

unjust

and

others

innocent,

because the

whole

state

is presumed

to be the

enemy

and it

is for

this

reason

that the

whole state

is condemned

and

ravaged.

PiCTET,

supra

note

10,

at 15.

Fighting

under

the

banner

of

a

just

war, the

Crusaders

committed

regular massacres

of


14/49

1994 / Critical

History of the Laws

of War

political

and economic

interests were at

risk did the

Church

attempt

to regulate conduct

during war.

For example, in 1139,

the Church

intervened to protect its

patron class, wealthy knights and

nobles,

denouncing

the crossbow as deadly

and odious to God because

it

was

used

by

peasants

to

cut

down

knights

and

nobles

at

long

range.

41

Although the modern

view deplores

an

overt

license

to

massacre,

it

nonetheless

claims

romanticized

chivalric ideals,

such as justice

and

mercy,

as its humanitarian

ancestors.

42

This view

obscures the fact

that

chivalric rules

actually

served to

protect the lives and

property of

privileged knights

and nobles,

entitling them to

plunder and kill

peasant soldiers, non-Christian

enemies,

and civilians of

all religions

and

ethnicities.

4

3

The

laws of

war

remained tied

to religious

particularism

until the

Enlightenment, when

a

prominent

group of jurists and

theologians,

the publicists, helped shift the

source

of

legal

authority

from

God

to reason.

44

In

De ure Belli

ac

Pacis

Libri

Tres

a three-volume

work

on

the

laws of war, Hugo Grotius

concluded that

the practice of states

reflected

natural

law

through

the reasoned

judgment

of

men.

45

Most

important from the

modern perspective,

he insisted

that war

should

be

governed by a

strict

set of laws.

4 6

Grotius

maintained that

violence

beyond

that necessary to secure the military

goal was not

justified, and

that suffering should

be

minimized

within the parameters of

mill-

infidels.

See generallyMAjID KHADDURI,

WAR AND

PEACE IN THE LAW

OF

ISLAM

(1955);

JAMES

A.

BRUNDAGE, MEDIEVAL

CANON

L W

AND THE

CRUSADER (1969).

41. See

MYREs S.

McDOUGAL

FLORENTINO

P.

FEUCIANO,

LAW

AND MINIMUM WORLD

PUBLIC ORDER:

THE LEGAL REGULATION

OF

INTERNATIONAL

COERCION 615

(1961) (citation

omitted).

In

the 10th

and 11th

centuries, the

Church issued a number of

Peace

of

God

proclamations prohibiting,

fbr example, attacks upon

priests

or

their guests,

seizure of

ecclesias-

tical

lands, and combat on Christian

holidays. See DOCUMENTARY

HISTORY,

supra note

37, at 9.

42. See

eg.

Johan Huizinga, The

Political

and Military

Signifiance

of

Chivalric

deas

in the Late

Middle

Ages in

MEN

AND

IDEAS

196

(James

Holmes

Hans

van Marie

trans., 1984); Waldemar

A. Solf,

Protectionof

Civilians

Against the Effects

of

Hostilities

Under

Customary

International

Law

and

Protocol

1 1

AM.

U.

J.

INT L L.

&

POL'Y

117,

119 (1986).

43.

See M.H.

KEEN,

THE

L WS OF WAR IN

THE LATE

MIDDLE AGES 50 (1965);

G.D.

SQUIBB,

THE

HIGH

COURT

OF

CHIVALRY

(1959). In effect, the code

of

chivalry

created

a

guild

of

warriors

with legal

authority

to pillage. One noted historian

of the Middle

Ages concludes that

beneath

the high

idealism

of chivalric

honor.... t]he occasional

feat

of

arms

is

a

diversion from the

more

serious business

of pillage

and destruction, and chivalry

owes

more

to the

pen

than

the

sword. RICHARD

BARBER, THE KNIGHT

AND CHIVALRY 210

(1974).

44. See eg.

I N BROWNLIE,

INTERNATIONAL

LAW

AND

THE

USE

OF

FORCE

BY

STATES 3-18

(1963); Juuus

STONE,

LEGAL

CONTROL

OF INTERNATIONAL

CONFLICT 3-18

(1954);

David

Kennedy, Primitive

Legal

Scholarship

27 HARV.

INT L

L.J. 1 (1986).

The

early publicists, like the

Spanish

Dominican

Francisco de

Vitoria,

continued to

use the

justwar framework but

univer-

salized its principles. FRANCISCO DE

VITORIA,

DE INDIs ET E

JURE BELLI REFLECTIONES

(James

Scott

ed.

Ernest Nys trans., Carnegie

Institution

of

Washington 1917)

(1557).

45.

See

H. Lauterpacht,

The

Grotian Tradition In International

Law 1946

BRIT. YB. INT L L.

1,

15;

George

G.

Wilson,

Grotius:

Law

of

War

and

Peace 35

AM. J.

INT L

L. 205 (1941).

46. GROTIUS,

supra note 38, at 291.


15/49

Harvard

InternationalLawJournal Vo 35

tary requirements.

47

A century

later,

Jean-Jacques

Rousseau reaffirmed

these

principles, stressing

that the nature of things required bellig-

erents to distinguish combatants from

non-combatants and limit at-

tacks

to

armed

enemies.

4

8

The modern

view hails the publicists for laying

the

foundation

of

the

laws

of

war, a

triumph of

reason over barbarity.

49

But the

triumph

was

in word

only.,

The enlightened

theories of the publicists did

no t

influence

the

practice

of

emerging European nation-states

busily en -

gaged in the imperial

conquest,

massacre,

and

enslavement

of millions

in the Americas,

Africa,

and

Asia. The modern view,

holding

that

the

work

of the

publicists

divides

a lawless age of warfare from the

modern

age of legal restraint,

serves to mystify and

legitimate

the current

legal

regime. A more

accurate portrayal would

place the

laws

of war within

a historical continuum of unsuccessful

attempts to

limit

wartime con-

duct.

IV. THE

TRIUMPH OF CODIFICATION

IN

THE

NINETEENTH CENTURY

A.

The

Advent

ofModern War

Until the

nineteenth century, the residual remains of chivalry,

the

non-binding theoretical treatises

of

the

publicists, and the slow accre-

tions

of

customary restraints

derived from

state practice

comprised

the

legal framework governing

conduct in

war.

However,

the

changing

nature of warfare, spurred

by technological advancement

and height-

ened

rivalries

between

newly consolidated

nation-states,

revealed

the

impotence of

these

restraints

and

compelled

their

revision.

50

The

French

Revolutionary

and Napoleonic wars

heralded

the

dawn of an

47.

Grotius conceded

that

any act required by

military

necessity was per

s

legal.

For

emmple,

Grotius

wrote that

military

necessity

would permit

a belligerent

to injure property

and

persons

of

an enemy

population

and

even

to kill

those who had surrendered

unconditionally. Sce i

at

328-30.

48. Rousseau turned to

reason as the basis for the law:

Since

the aim of war is

to

subdue

a

hostile state,

a

combatant has the

right

to

kill the

defenders of that

state

while they are armed;

but

as soon as

they

lay

down

their

arms

an d

surrender, they cease

to

be

either

enemies

or

instruments of

the enemy; they become simply

men

once more, and no one

has

any longer

the

right to

take

their lives

.

[M7Jar

gives

no right

to

inflict any more destruction

than is

necessary

for victory. These

principles were

not invented by Grotius,

nor

are they

founded

on

the authority of

the

poets; they

are derived

from the nature of things; they

are based

on

reason.

JEAN-JACQuES ROUSSEAU THE

SOCI L

CONTR CT

57 faurice Cranston

ed.

trans., Penguin

Books

1968) 1762).

49. See ag. F~iTS KAISHOVEN

CONSTRAINTS ON THE WAGING

OF

WAR 1987);

Picr r

supra note 10 at 49-58.

50. See ag. WRIGHT sRpra note 14,

at

338-46;

O'Brien,

Military

Necessity

stpra

note

9 at

109.


16/49

994 /

Critical

History

of the

Laws

of War

epoch of 'unbridled

ferocity'.

51

The

birth

of the

nation-at-arms,

in

which

entire

populations

and

industrial

bases

were

mobilized

in sup-

port

of the war

effort, blurred

the

combatant/non-combatant

distinc-

tion

and

jeopardized

any

civilian

claims

to

immunity.

5

2

The

unfolding

of these

developments

during

the heyday

of

legal

positivism

led

to international

conferences

aimed at

codifying

the

laws

and

customs

of

warfare.

Before

examining

the

fruits

of

these

confer-

ences,

it

is helpful

to

understand

the contemporaneous

theoretical

debate

over

codifying

the

laws

of war.

B.

Kreigsraison

or

the

Rule

of Law?

Much

opposition

to codification

came

from

supporters

of a doctrine

called

kreigsraison,

associated

primarily

with

German

statesmen

and

officers. Advocates

of

kreigsraison

argued

that

the

demands

of military

necessity

should

always

override

the

obligations

of international

law.

53

While

some

even

lauded

war

as a good

in

itself,

54

most

argued

that

a

ruthless

war

was

quicker

and

therefore

more

humane.

55

The moderate

proponents

of kreigsraison

reasoned

that

such tactics

were

consistent

with

law 99 times

out

of

100,

and in

the rare

case

when

survival

or

victory

required

violating

law,

it

was

unreasonable

and

unrealistic

to

prohibit

such

violations.

56

In

the words

commonly

attributed

to

Ger-

51.

PicrEr

sitpra note 10

at

24

(quoting

French Field

Marshall

Foch).

52. The

19th

century

saw the

end of

kreigsspeil, or

play war,

as

von

Clausewitz

derisively

termed

the dynastic

jousting between

small

professional armies

that occurred

between

1648

and 1792.

O'Brien, Military

Neressity,

supranote 9, at

132.

In modern

wars,

enormous

conscript

armies

replaced

the

small

ranks of

professionals,

and casualty

rates

skyrocketed

for non-combat-

ants. Those

who

remained

at

home

were no

longer

safe from war's

destructive

reach.

See

WRIGHT,

supra note 14,

at

291-328.

53.

The term

derives from

the German

phrase kreigsraison

gebt

vor

kreigsmanier,

which

translates

as

the

necessities

of

war are

prior to

the

customs

of war. See,

e.g., BEsT,

supra note

5,

at

145-75; O'Brien, Military

Necessity,

supra note

9

at

118-28.

54.

According

to Prussian

Field Marshal

von

Moltke,

perpetual

peace

is a dream,

and not

even a beautiful dream. War

is

an element of the divine order

of

the world.

In

it

are

developed

the

noblest

virtues

of man:

courage

and

self-denial, fidelity

to duty

and the

spirit

of sacrifice

Without war,

the

world

would

stagnate

and lose

itself

in

materialism.

BaST,

supra

note

5,

at

145

(quoting

von

Moltke).

55. The

1902

German

Army

manual

on

land warfare

asserted

that certain

severities

are

indispensible

to

war, and

that

humanity

was

best

served

by

the ruthless

application

of

them.

THE WAR

BOOK OF

THE GERu eNs

GENERAL

STAFF

72

(J.H. Morgan trans.,

1915)

[hereinafter

THE WAR

BOOK].

In a similar

vein,

Prussian

General

von

Hartmann

wrote

a

series

of influential

articles

in

which

he derided

the

growing

humanitarian

trend

in the laws

of

war,

asserting

that

strict

enforcement

of military

discipline

and

efficiency

ultimately

achieved

the

most

humane

results.

See

O'Brien,

Military

Necessity,

supra

note

9

at 121;

BEST,

supra note

5, at 145.

56.

Lueder,

one

of

Germany's

foremost

jurists,

wrote

that

necessity

was

almost

always com-

patible

with

law,

but in

the

rare

case

of

conflict, when the

circumstances

are

such

that the

attainment

of the object

of

the

war

and

the

escape from extreme

danger would

be hindered

by

observing

the

limitations

imposed

by

the

laws

of war, necessity

must

triumph.

4 HOLTZEN-

DORFF S HANDBUCH

255,

reprinted in

2 JOHN

WSTLAKE,

INTERNATIONAL

L W

115

(1907).


17/49

arvard

InternationalLaw

Journal

Vol.

man

Chancellor von

Bismarck,

What

leader

would allow his

country

to be

destroyed

because

of international

law?

Kreigsraison

provoked

a storm

of

condemnation

from

contemporary

international

law

scholars

who

deplored

its

apparent

scorn

of

their

cherished

belief

in the humanizing

force

of positive

law.

57

Accordingly,

these

scholars

were

outraged when, three

years

after

the

first

Hague

Conference,

Germany

produced

an

army

manual

steeped

in

the spirit

of

kreigsraison.

One

passage

that

sparked

particular

concern read

as

follows:

A war

conducted

with energy

cannot

be

directed

merely

against

the combatant

forces

of

the Enemy

State and

the

positions

they

occupy,

but

it will

and

must

in

like

manner seek

to

destroy

the

total

intellectual and material

resources

of the

latter.

Humanitar-

ian

claims,

such

as the protection

of

men

and

their

goals,

can only

be

taken

into

consideration

in

so

far

as

the nature

and

object

of

war

permit.

5

8

Ironically,

the

German

manual

accurately

described

the very

prac-

tices

that would

come

to dominate

modern

wars

conducted

within

the

laws

of

war.

Thus,

while

the codification

of the

laws

of war

represented

a

formal

rejection

of

kreigsraison

it

did

not

signify

a substantive

ad-

vance

towards

the

humanitarian

goal

of

restraining

war

conduct. The

distinction

paramount

in

the

minds

of legal

scholars

between

kreigsraison

and

the

laws

of

war

disappears

in the actual

practice

of war.

The

elasticity

of

the

term

military

necessity

under

the

laws

of war

has

enabled

belligerents

to legally

justify virtually

any

conduct

other-

wise

available

to

proponents

of

kreigsraison.

9

Lueder

gave two

reasons

for

his

position:

first, the

right

of states

to

self-preservation

is

prior

to

all obligations

under

international

law;

and

second,

law should

reflect the practical

reality

that

military

commanders

will

always

choose

to

violate the

law if

necessary

to

avoid

defeat.

See

O'Brien,

Military

Necessity

supra

note 9

at 122. Following

a similar

line of

reasoning, Alphonse

Rivier,

a

noted

Swiss

jurist, contended

that

when

its

survival

was

at stake,

a

state was actually

obliged,

for the salvation

of its

country,

to violate the

rights

of

another

state.

id at 124.

57. JAMES

W.

GARNER,

STUDIES

IN

GOVERNMENT

AND

INTERNATIONAL

L W

261 66

(1943);

STONE

supra

note 44,

at

352-54.

58. THE

WAR

BOOK,

supra

note

55

at 68. Many

European

law

scholars

complained

that

the

German

war

manual

ignored

the

Hague

Conventions,

to

which

Germany

was

bound

by

agree-

ment:

It

is quite

clear that the

authors

of

the

German manual

regard

military

effectiveness rather

than

considerations

ofhumanity

the

test

of

the

legitimacy

of

an instrument

or

measure.

GARNER,

supra note

57

at 262.

See also

STONE

supra

note

44,

at

352.

59.

International

law scholars

feared

that

kreigsraison

would

justi y

ny

military

act

a

com-

mander

viewed

as helpful

rather

than

as

actually

necessary.

GARNER supra

note

57

at

264;

STONE

supra note

44,

at

352.

Codification

of

the

laws

of war

has not

overcome this

problem:

military

necessity

has proven

to be an

elastic concept

in the hands

of diplomats

and

officers,

who

have

often

interpreted

it

to

mean

mere

utility.

See

infra part

VLE.2.


18/49

1994 CriticalHistory of the Laws of War

Some would

argue that even if kreigsraison

reaches the same result

as

law

in almost all concrete situations,

it

creates

an atmosphere

permissive of atrocities.

60

The merit of

this argument depends on

whether the

mere

existence of humanitarian-sounding laws, void of

substantive restraints, influences

belligerents to conduct

more

humane

wars. If so, then the laws of war constitute a humanitarian

advance

over

kreigsraison.

But if,

instead, the existence of law enables belliger-

ents to suppress opposition to

wartime

conduct by cloaking such

conduct in legal

legitimacy, or

if

the law

has sidetracked humanitarian

advocates

from pursuing their agenda

by

other, more effective tactics,

then the triumph

of law over

kreigsraison has been costly.

C. The Lieber Code

The

United

States

Civil War

gave

birth

to

the

first

modern

codifica-

tion of the laws of

war

to be officially adopted

by

a warring belliger-

ent.

61

The Lieber Code, which

Lieber

modestly

described

as

short

but

pregnant and weighty like some stumpy

Dutch woman

when in the

family way

with coming twins,

6

2 provided a

blueprint

for similar

international efforts in the latter half

of

the century, and has been

widely praised as

a

humanitarian milestone

for

implementing the

rule

of

law

in

an

actual

war.

6

3

Despite

the widespread praise for its

humaneness,

Lieber s

document

subjects

all

humanitarian

provisions

to

derogation

based

on an

open-

ended

definition

of

military necessity, and asserts, in the spirit of

kreigsraison that [the more vigorously wars

are pursued,

the better it

is for humanity. Sharp wars are

brief.

4

The practices

that

Lieber

explicitly condoned under his definition of

military necessity included,

for

example,

starvation of civilians,

bombardment

of civilians

without

60. Even those who admitted that kreigsraison and the rule of

law would

tend to

reach

identical results still

bitterly

opposed

the

former approach. Typical is O'Btien's assertion that

the

kreigsraisonview is dangerous

in

its tendency rather

than

in any avowed intention

to

induce

lawlessness. O'Brien,

Military

Necessity

supra note 9 at 127.

61. President Abraham

Lincoln officially

signed the Lieber Code for the use of the

Documents

September Reading