Iodernizing The Law of War

• Author: R. R. Baxter
• Pages: 04

In these days, curiously little attention is given to the philosophy of war, even in military circles, u-here one might expect there to be at least some slight interest in the subject. The usual analyais of a state's objectives in war-as distinguished from the objectives of a particular state-goes no further than the unassailable proposition that a State should fight a war in such a nay that it will win the war. Only slight reflection on this assertion should persuade one that it gives rise to a number of questions. What should a state engaged in armed conflict aith another state actually seek to accomplish? What costs are tolerable in the course af seeking to prevail over the enemy? What sort of conduct, what attitude toward the enemy, is best calculated to bring about SUCC~SS in war? What, indeed, does the word "win" mean? Can a short-term victory be followed by what is properly ~ e e n in the long term ae a loss of the conflict? One is reminded of the injunction uttered during the Second World War-that we must not win the war but lose the peace.

Victory, it is fairly clear, does not necessarily mean the complete destruction, the decimation, of the enemy. Indeed, the best possible outcome for a state technically at war would be that this state would impose its will upon another state with na loss of life or destruction of property an either side, &ply through the threat of overwhelming force. Thus the use of farce or the threat of force may look to minimal destruction and casualties for the adversary. Presumably, a state waging aar will also, in its own self-interest, seek to minimize the losses to itself. As the result all-out war may not be in the interest of a belligerent, either in so far as it involves excessive destruction of the human and material resources of the enemy or in so far as it may mean full commitment of all of the resources of the belligerent. The limited or economical use of force, involving the minimum use of military resources by a belligerent and minimal destruction of

*SiYth Annual Edward H. Young lecture on Military Legal Education, delivered at The Judge Advocate General's School on August 25 1977 The opinions ox-pressed are thaw of the author snd do nut necessarily repreaeni the s i e w of The Judge .?.dvocate Genera79 School or an; ather garernmenid agents*'Profes3or of Law. Harrard Uniierslt) The writer w a ~ a member of the UnitedStates Delegation to the filrrt three seisiond of the Diplamatic Conference on In-ternarions1 Humanlfarla" Law.

MILITARY LA\+' REVIEW [VOL. 18

the enemy's people and property, should in most instances be a desirable concommitent of victory or perhaps even an element of the

If the all-out use of force is not necessary to victory. it follows that any employment of force m excess of what is actually needed is wateful and unnecessary. At this paint a principle of the proper conduct of warfare meece and merges with one of the principal concepts of the law of iiar-the prohibition of unnecessary destruction. When that prohibition E seen in human terms. it show itself as a prohibition on the causing of unnecessary suffering. This basic rule of humanitarianism and governing pnneiple of the use of force in the national interest find expression in the same principle that no more destruction and no more suffering must be inflicted upon the adversary than are necessary to bring the conflict to a successful outcome.

Principles slip easily off the tongue. The difficulty comes in giving expression to them in the form of rules that will govern specific cases. States hare attempted to give erpresaion to this basic principle through the humamtarian law of war. evolving in its treaty form from the first Red Cmss Convention of 1864.' What is necessary in war and what conduet can be prohibited as unnecessarily destruethe and unnecessarily productive of human suffering are not eaa? to define, and reasonable minds ma> well differ about such questions. It is inentable that considerations other than those of humanity should intrude themselves into the Ian-making process In the course of debate about such matters, a state sill naturally pursue ita own national adiantage If It is a "have-not" state in the military sense, it may seek to place limits on the arms of the armed forces of "have" stater. The "have-not" state ~ 1 1 1 also seek a preferred pwition for its own personnel and mode of xarfare, which the "have" state w-111naturallr resist. Moreover. the very comine toeether in a conference, like the Diplomatic Conference on International Humanitarian Lax, which concluded its endeavors in June of this year, offers an opportunity to seek diplomatic and political adrantager through manipulation of the process. Conferences acquire a certain life of their o m and become games pla>ed for their own sake Considerations of humanity became caught up in what I have elsexhere described ad humamtarian politics.2

The four sessions, covering as many years, of the Diplomatic Conference and the two preliminary Conferences of Government Experts convened under the auspices of the International Committee of the Red Cross had as their objective the modernization of the law of war on and affecting land. It dealt with bath the law af land war. fare and the law of aerial bombardment. One of the mast remark. able accomplishments of the Conference was agreement on a number of rules for this aspect of the law of air warfare, which has heretofore been derived by inference from outmoded treaties, such as the Hague Regulations3 and the Hague Convention of 1901 on Xaval Bombardment.'

Such is the velocity af change in the nature of aar and the manner of ivaging war that the Geneva Conventions of 1545 had by the 1970s become in need of supplementation and, to a certain degree, af modification. I shall not dwell here on the specific events that precipitated the movement for change. Interest on the part of the human rights camtitueney xithin the United Nations, pressure exerted by the United Nations in the form of a threat to move into what had heretofore been the preserve of the International Committee of the Red Cross. and the accumulated concerns of the I.C.R.C. itself all played a part.

At the outset, when the United Nations and the I.C.R.C. were seeking out inadequacies in the existing law and of aspects of warfare that required regulation. it was by no means clear what modernization entailed. There \\-as simply a generalized sense that something ought to be done. Only the I.C.R.C. had some sense of ,,-hat matters called far attention; the protection of the civilian population from bombardment uaa perhapa the most important of these concerns. Ai states began ta consider what would be desirable modifications of the law in their own interests, a number of areas of primary concern emerged. such as better implementation of the existing Conventions, the need faor legal safeguards in noninternational armed conflicts, and the application of the law of war to ''w~rs of national liberation.'' The I.C.R.C.. with the help of government experts. identified what these areas were and then proceeded to draft two Protocols to the Geneva Conventions of 1549,5 one dealing

Regulations Annexed to Hague Canvention No. IV. Respecting the Lars and Cuifamr of Usr on Land. Oet 16, 1807, 36 Stat 2277. 2206 [hereinafter cited ad Hapue Regularion~l

'

Hague Convention IX Concerning Bombardment by Savai Forces in Time of

" Gene58 Conrention for the hmeliorafmn of the Condition af the Wounded and

war. ocr la. 1907. 36 stat. 2351, T.S x0 642

nith international and the other uith nomnteiflicte.6 The? could hate taken the course of pi'i'ather short protocols dealing with specific problem- that called for new laii--a protocol on Implementation, a protocol on better medical evacuation from the battlefield-but chase to draft more general instruments that could w i y well be described ai the Fifth an ihtli Geneia Conventions In preparing x ell-rounded treatie 1.C.R.C vas enabled to incorporate a number of new duti privileges which they in particular wanted to add to the e. Geneva Conventions.

There \$ere seveml gentlemen's agreement.- about hoe the prac-ese of modernization was to take place First. it 1\16 agreed *ub silentio that there sauld be supplementation but no modification -in the sense of opening up the bodies-of the Geneia Conrentions of 1949. Supplementation does inidre change. and ceitainly the ex-tension of both the Protocols nnd the Genera Conventions of 1Y49 to iuars of national liberation did modify the earlier treaties. It also seemed to be generally understood that there uould be no tampering with the general protection of the wounded and sick and of pnsmers of war Finally. the Conference settled into the vmv, not without some struggle, that It ought not to get into the matter of naval warfare and the protection of civilian persons and property at sea.'

One can understand the work of the Conference on International

on the Reaffirmation and Development of I cable In .Aimed Conflict. Baric Texts (197

and Commentary (19731

Proroeal I air 49 ~ a r a

3 oraridei'

Protocol Additional t o the Genera Conienfioni of Aug 12 IqG and Relating to the Pmfemm of Vietimi of...