A legal minefield

Genocide: - War and Law since 1945 - Child Soldiers:
March 3, 1995

There are those who question the very logic of a concept of the laws of war. War is such a violent and terrible undertaking that it seems beyond the calm rational structure of a legal code. In the minds of others such a regime suggests the complex customs of ancient knights with their code of chivalry. Cynics claim prosecutions for war crimes are always of the vanquished by the victor and that this makes for an unjust form of legislation.

The laws of war are different from domestic laws, and also from the normal range of international law. There is no single legislature to agree the rules of war and no standing police force to catch the law- breakers. Yet no state can afford to ignore the international consensus on the laws of war, whether as the aggressor nation or the defending power. Nor is it possible to cobble together a suitable set of rules as each war breaks out. Soldiers need guidance as to the legality of their actions, and they need long training so that the implications of the rules of war become second nature. The planners need to procure military equipment many years before it is delivered into service. It could be less than sensible to invest both time and money in the development of a weapon system, if its use would be a criminal act in the eyes of the world community. Political leaders need also to be aware of the constraints of the international laws of war.

Again, the sceptic may laugh. A leader intent on war is unlikely to be constrained by the customs of the world community on the laws of war. A military scientist who discovers a more effective way of incapacitating the opposition will be able to persuade the arms manufacturers to invest in his new weapon. The military man will not wish to fight with one hand tied behind his back. These books assuage some of these doubts. The first explains the development and current compass of the laws of war, and highlights the failures as well as the successes. The other two give graphic examples of the inhumanity and needless catastrophe that flow from lack of observance of even the most basic humanitarian laws.

Geoffrey Best is not a lawyer by training but a historian, and his book, War and Law Since 1945, is a description of the development of the thinking, practice and effectiveness of laws about conflict. Indeed, he makes it clear that lawyers should read the book for pleasure, but not as a preparation for academic examinations on international law.

The spread of international agreement on humanitarian law has been mainly a 20th-century phenomenon. Reflecting this (and his title) only one chapter is allocated to events up to 1945. He dates the codification of the laws and customs of war from the regulation of maritime commerce in wartime, which was dealt with in 1856. Land warfare codes followed in quick succession, and by the turn of the century a set of such regulations was annexed to the Hague Conventions. In parallel, work was developed on codification of practices for the sick and wounded. International agreement on simple humanitarian arrangements was agreed in the Geneva Convention of 1864.

The third pillar of such laws was to be the question of the involvement of non-combatants in war. Here Best describes why the development of a legal framework seems to have been rather less tidy. While the St Petersburg declaration of 1868 indicated that the only legitimate object in war was the weakening of the military forces of the enemy, there was no explicit ban on attacking civilians.

The test of these new humanitarian laws was to come with the First World War. While many of the rules were broken, or bent beyond recognition, it was a war in which the belligerents all presumed the validity of the laws of war, and could thus accuse one another of contraventions. Yet, largely, the humanitarian rules for care of the injured and prisoner of war procedures worked well. The Red Cross gained greater influence through its work, and was able to take on an agreed role in later conventions. The horrors of that war, however, meant that the thrust of the interwar period was the prevention of war rather than the patching-up of the laws of war. Best makes the point that if the League of Nations is to be criticised for not having done more to reaffirm and reinforce the law of war, one must remember it had the higher aim of making such laws redundant.

Despite such hopes, wars continued and the next major test of the laws of war came with the Second World War. In this, Best judges, perhaps over-generously, that the core principles of restraint and discrimination for the sake of humanity were observed not badly when men had the will and space to observe them. He deduces two lessons from this period: first, the willingness to risk extra losses for humanitarian principle is rare; and second, the prospect of war trials has little effect on the actions of belligerents.

The second part of the book turns to the reconstruction of the laws of war between 1945 and 1950. The birth of the United Nations organisation was the key event. Best makes the point that the laws of war would have continued to operate without the UN, but the UN Charter was the hub of the postwar reconstruction of the international legal apparatus. He paints a fascinating picture of the development of humanitarian law. The difficulties of negotiation over a large range of conventions are well documented in the book. A good example is the push to define the distinction between combatant and non-combatant in a war: a problem that continues in modern warfare.

More successful was the development in 1949 of a comprehensive prisoner-of-war convention. The 143 articles and five annexes provided a complete code of conduct for the handling of POWs. This has been a useful and important agreement. While there have been transgressions against the code in recent times, world opinion is quick to condemn them, as seen in the Gulf War.

In the final part, covering the period from 1950, Best's examples are comprehensive. He sketches the increasing concern over the use of napalm as a legitimate weapon in Korea, in Algeria, Angola, Mozambique and, of course, in Vietnam. This is one illustration of the difficulties of agreeing humanitarian law. Similarly, limitations on the use of mines have become an issue as more civilian casualties occur long after wars have ceased.

In the epilogue, Best gives a personal and subjective assessment of the place of international humanitarian law in the scheme of inter-state relationships today. He describes how, over 20 years of study, he has moved from being impressed by the moral and religious seriousness of the underlying ideas to a much more critical position. He now has a much more limited expectation of the efficacy of international humanitarian law.

In his wide-ranging treatise, Best makes only a passing mention of the UN Genocide Convention of 1948. He faults it, as with other aspects of humanitarian law because of difficulty of enforcement. George Andreopoulos, in his edited collection of papers on all aspects of genocide, reprints the convention in full, and his contributors examine the strengths and weaknesses. The case studies include the use of chemical weapons by the Iraqis against the Kurds, East Timor after the Indonesian invasion, and Cambodia under the Khmer Rouge. These are useful examples to explore both the definition of genocide and the utility of international law. As is often the case with such conference collections, the conclusion is provided in the editor's introduction. Andreopoulos does not disagree with Best's views on the limited effectiveness of such legislation. He does, however, offer the hope that the international community is now showing a willingness to rethink its approach towards a people-centred security regime rather than a state-centred system. This carries with it a need to be prepared to carry out UN-sponsored intervention to police humanitarian illegal acts.

For the reader, who has by now become thoroughly depressed over the inadequacies of international humanitarian law, the third volume, Child Soldiers, offers little comfort. Again, an area which is mentioned briefly by Best is expanded into a detailed appraisal of the international law relevant to children in armed conflict, and the impact of such law. What makes this volume different is that the analytical prose is interspersed with photographs that would move the hardest heart. Each young child, weighed down with the trappings of modern weapons, makes a convincing argument for the need for a more effective international humanitarian law regime.

Guy Goodwin-Gill and Ilene Cohn are perhaps less forceful in their conclusions. They argue for more research and upgrading of the law. They see the wider understanding of the laws about children in armed conflict, coupled with more monitoring and reporting, as being the way forward. I doubt Best would feel this was enough.

These books clearly show the need for laws of war, and also the difficulties in both agreeing those laws and enforcing them. Each highlights the lack of adherence when times get difficult, as they always do in war. That said, as Best admits, international humanitarian law makes war less terrible than it would be without it. For regular military men, it provides an important template for conduct in war. Increasingly, it provides a basis for judgement by the world's media. When an atrocity occurs, it is judged as such against the customs of humanitarian law. With sufficient international outrage, an ad hoc intervention may be mounted by the UN to restore the area to a tolerable state. This surely is the current development in the path to a more effective rule of international humanitarian law.

Air Marshal Sir Timothy Garden is Commandant of the Royal College of Defence Studies and a former Assistant Chief of the Air Staff.

Genocide:: Conceptual and Historical Dimensions

Editor - George J. Andreopoulos
ISBN - 0 8122 3249 6
Publisher - University of Pennsylvania Press
Price - £32.95
Pages - 265pp

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