Wars of Law

Unintended Consequences in the Regulation of Armed Conflict

Tanisha M. Fazal

• Publisher: Cornell University Press
• Year: 2018
• Print ISBN: 9781501751998
• eBook ISBN: 9781501719806
• Topic: Politics & International Relations
• Subtopic: International Law
• Index: Politics & International Relations

In Wars of Law, Tanisha M. Fazal assesses the unintended consequences of the proliferation of the laws of war for the commencement, conduct, and conclusion of wars over the course of the past one hundred fifty years.

Fazal outlines three main arguments: early laws of war favored belligerents, but more recent additions have constrained them; this shift may be attributable to a growing divide between lawmakers and those who must comply with international humanitarian law; and lawmakers have been consistently inattentive to how rebel groups might receive these laws. By using the laws of war strategically, Fazal suggests, belligerents in both interstate and civil wars relate those laws to their big-picture goals.

Why have states stopped issuing formal declarations of war? Why have states stopped concluding formal peace treaties? Why are civil wars especially likely to end in peace treaties today? In addressing such questions, Fazal provides a lively and intriguing account of the implications of the laws of war.

1

THE PROLIFERATION AND CODIFICATION OF THE LAWS OF WAR

In this chapter, I trace the development of international humanitarian law since its initial codification in the mid-nineteenth century. This body of law has changed dramatically in both quantity and quality. At the close of the Napoleonic Wars in the early nineteenth century there were no multilateral treaties on the law of war. The customary law of the day was such that prisoners taken in war were routinely shot, and brutality against civilian populations was common both inside and outside western Europe.¹ That the laws of war were tacit, not codified, made sense in a world where state boundaries and sovereignty were often unsettled. Indeed, the law was used in part to distinguish bandits and warlords from legitimate rulers.² Today, by contrast, over seventy law of war treaties and conventions are listed in the treaty database of the International Committee of the Red Cross (ICRC).³ Most of these conform with the ICRC’s mission of protecting victims of war. All these laws are state-centric, with a primary focus on the regulation of interstate rather than civil war; parties to the treaties are exclusively states.

In this historical overview of the laws of war, I focus on the process of the making of international humanitarian law. After laying out the basic history of the laws of war, I analyze the changing composition of the lawmakers present at the creation of modern international humanitarian law. I show that representation of the military in these lawmaking efforts has declined over time. I then approach the history of international humanitarian law from the angle of armed non-state actors. Via a content analysis of major international humanitarian law documents, I show that the framers of international humanitarian law were more concerned with avoiding conferring legitimacy on rebel groups than they were with trying to bind the in bello behavior of these groups. Combined, the changing composition of lawmakers and the consistent inattention to rebel group behavior explain how the changing nature of IHL bears directly on how—and which—actors opt to try to evade or instead to engage positively with this body of international law.

A Brief History of the Laws of War

For most of human history, the laws of war were informal or agreed to on an ad hoc basis. The ancient Greeks, for example, had an informal understanding amongst themselves that “[h]ostilities are sometimes inappropriate: sacred truces, especially those declared for the celebration of the Olympic games, should be observed,” and, moreover, that prisoners of war should be ransomed rather than executed.⁴ Cicero was famously skeptical of the power of law in the context of war, but even he recognized the need for some regulation of warfare. He exhorted the ancient Romans to treat prisoners of war well, and to offer some mercy to civilian populations.⁵ Sun Tzu likewise urged kind treatment of captured soldiers, and argued that a skillful leader “captures cities without laying siege to them,” to avoid causing undue suffering of the civilian population.⁶ The ancient Greeks and Romans limited the application of these restrictions to their cultural cousins; pagans and barbarians did not receive the same consideration.⁷

The first western efforts at codification of the laws of war were made in the Middle Ages, by writers such as Aquinas and by representatives of the Christian Church. The Church had manifold, and sometimes conflicting, interests in regulating war. One was to apply Christian values of fairness and humanitarianism to the realm of warfare. Another was to limit where these values applied. The laws of war were clearly meant to apply to conflicts between and among Christians. Just as clearly, however, they were often not applied to non-Christian peoples, whose “barbarism” arguably justified the infliction of atrocities upon them, often in the name of civilizing native peoples and lands.⁸ A third, extremely pragmatic reason for the Church’s support of a system of laws to regulate war was that such a system protected the Church itself.⁹ Its priests were among the earliest classes of protected peoples. Moreover, as the largest landowner in Europe, the Church was deeply interested in propagating and disseminating a set of rules that would protect its wealth in land, art, and sacred buildings.

Church doctrine regarding jus in bello—laws regulating conduct during war—was folded into the medieval chivalric code. Although the code of knights was a precursor to modern international humanitarian law and the word “chivalry” today has positive connotations, it did not approach current standards of humanitarianism.¹⁰ As argued by scholars such as Helen Kinsella, the chivalric code perpetuated and sometimes exacerbated existing inequalities of race, class, and gender. It was meant to preserve a very specific system of social order. The code principally governed behavior among the knightly class. Rules regarding gentle treatment of prisoners of war, for example, did not apply to the foot soldiers who often bore the brunt of fighting.

Jurists such as Francisco de Vitoria, Emmerich de Vattel, and Hugo Grotius brought the laws of war from an ad hoc series of rules developed on the battlefield into a more theoretical and systematized realm. In the sixteenth century, Vitoria, a Spanish philosopher, took the position that militaries could target civilians only if it served military purposes, such as deterring other towns or boosting soldiers’ morale. This position was moderated in the seventeenth century by Grotius, a Dutch jurist, and in the eighteenth century by Vattel, a Swiss jurist, both of whom argued for additional restrictions on military treatment of civilian populations.

While the writings of these legal scholars constitute, in a sense, the initial codification of the laws of war, the application of these rules on the battlefield remained generally informal, with the occasional exception of bilateral arrangements between belligerents.¹¹ The laws of war were largely customary, identified by state practice and the norms of the day, rather than by positive law embedded in international agreements.¹² By the mid-nineteenth century, however, the landscape of international law had altered dramatically. Martti Koskenniemi argues that it was the rise of international law as a recognized profession that led to a proliferation of international laws. Increasingly, such laws began to be codified in multilateral treaties.¹³

The first law of war codified in a multilateral agreement was the 1856 Declaration of Paris Respecting Maritime Law. The 1856 declaration is short, comprising just four main parts:

1. Privateering is, and remains, abolished;
2. The neutral flag covers enemy’s goods, with the exception of contraband of war;
3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy’s flag;
4. Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.¹⁴

The minimalism of the declaration favored belligerent rights, in that belligerents could board and inspect neutral ships to look for contraband. The rights of neutral states were protected only to the extent that contraband was not found upon their ships. Notably, the declaration did not define contraband, effectively leaving the definition to the belligerents themselves, who, not surprisingly, took a very broad view of the question.¹⁵ According to Stephen Neff, the premier modern scholar of neutrality rights:

[A] belligerent right [of blockade] which had once been very tightly constricted had now become, in the eyes of some, breathtakingly broad. Where the law of blockade had once entitled belligerents to do nothing more—or less—than capture neutral ships which penetrated the physical line formed by a blockading squadron, it was now being invoked to allow belligerents to capture cargoes being carried on neutral ships between neutral ports, at indefinitely large distances away from the line of the blockade—even if the ship carrying the cargo never at any time encountered the blockading squadron.¹⁶

The next multilateral treaty in the realm of the law of war similarly benefited belligerents. The 1864 Geneva Convention on the Amelioration of the Condition of the Wounded on the Field of Battle was the brainchild of Henri Dunant, the founder of the International Committee of the Red Cross. In 1859, Dunant had been in pursuit of a business concession when he followed Napoleon III to the battlefield at Solferino during the Austro-Sardinian War. Dunant’s desire for profit appears to have been quickly supplanted by the desire to ameliorate the suffering he observed on the battlefield. What most struck Dunant was not the brutality of fighting itself, but the lack of medical evacuation and care for the fallen:

If there had been enough assistance to collect the wounded in the plains of Medola and from the bottom of the ravines of San Martino, on the sharp slopes of Mount Fontana, or on the low hills above Solferino, how different things would have been! There would have been none of those long hours of waiting on June 24, hours of poignant anguish and bitter helplessness, during which those poor men of the Bersagliere, Uhlans and Zouaves struggled to rise, despite their fearful pain …; and there would never have been the terrible possibility of what only too probably happened the next day—living men being buried among the dead!¹⁷

From Solferino, Dunant traveled back to his native Switzerland to raise funds for an organization that would “protect the lives and dignity of victims of armed conflict.”¹⁸ Thus was born the International Committee of the Red Cross, which has since been at the forefront of the development of modern international humanitarian law.

The 1864 Red Cross Convention was the ICRC’s first effort to bring the nations of the world to agreement on a basic law of war.¹⁹ The convention focused on an issue that was principally a coordination problem for belligerents: creating space and time for the war wounded to be evacuated from a battlefield. The founders of the ICRC knew that theirs was a steep hill to climb, but they also knew that it was a win-win proposition for all involved. Although state militaries had previously made efforts to improve their medical evacuation practices,²⁰ many of these services had atrophied over time and were no longer functional.²¹ It would be a net improvement for all parties if their wounded could be removed from the battlefield and receive prompt medical attention. The wounded could no longer contribute to the battle, and thus returning them to their forces for medical treatment was a tactically neutral move. At the same time, each party to conflict greatly preferred for its own wounded to receive treatment. Knowing that they could receive medical care if wounded would boost soldiers’ morale as well as the support for war on the home front.²²

The ICRC solved the problem caused by states’ lack of organizational capacity by proposing to do the work of evacuation and medical treatment itself. States, however, were opposed to the notion of having a third-party presence on the battlefield.²³ The problem was solved by identifying ambulances, military hospitals, medical personnel treating the wounded, and local civilians treating the wounded as neutral parties to the conflict. The famous “red cross” designation had been born.²⁴

Thus the first two codified laws of war were written in ways that favored belligerent rights. But the tenor of the laws of war was about to change. Whereas previously written laws facilitated war, the Hague Conventions of 1899 began to constrain belligerents in their warfighting, a historical turning point in the codification of the laws of war.

Originally conceived by Russia’s Tsar Nicholas II as a conference on disarmament—which would have been to Russia’s advantage, but benefited few other states at the time—the convening of powers in 1899 at The Hague instead took a curious detour.²⁵ Three of the 1899 Hague Conventions—the first codified rules for land warfare—cover (1) conflict resolution, (2) land warfare generally, and (3) maritime warfare; a fourth—including three declarations—restricts the use of specific weapons such as expanding bullets.

Convention II, “with respect to the Laws and Customs of War on Land,” restricts how civilian populations may be treated in times of war. The convention stipulates that “the right of belligerents to adopt means of injuring the enemy is not unlimited” (Article 22), and declares that “it is especially prohibited…. [t]o employ arms, projectiles, or material of a nature to cause superfluous injury” (Article 23). Further, “The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited” (Article 25). The convention also formally prohibits pillage (Section 2, Article 47) and, more generally, imposes a series of limitations on the rights of military occupiers (Section 3).

Although the customary laws of war as outlined by jurists such as Grotius and Vattel made important distinctions between combatants and civilians in specifying standards of fair treatment, the Second 1899 Hague Convention was the first positive...

Table of contents

• Acknowledgments
• Declaring War and Peace
• 1. The Proliferation and Codification of the Laws of War
• 2. International Recognition, Compliance Costs, and the Formalities of War
• 3. Declarations of War in Interstate War
• 4. Compliance with the Laws of War in Interstate War
• 5. Peace Treaties in Interstate War
• 6. Declarations of Independence in Civil Wars
• 7. Secessionism and Civilian Targeting
• 8. Peace Treaties in Civil War
• Evasion, Engagement, and the Laws of War
• Notes
• References
• Index