A Legal Analysis of the Changes in War

• Author: Major Joseph B. Kelly
• Pages: 04

1. INTRODUCTION

In February 1958, the Department of the Army published a pamphlet entitled, "Bibliography on Limited War."' In the fare-word to this bibliography General Maxwell Taylor raised the fallowing questions;

I hope that studies of limited wars, pmmptsd and supported by this Bibiiography, will clarify OYI thinking jn sevo?~I reapeeta. For Instance, answers are urgently required to quentions like these:

What is the nature of limited war in the nuclear age, and how does it differ from those of the recent and distant past? . . . .

There is no shahcut to a single answer to these questions. The solution lies, rather, in a historical analysis of both the phenomenon of war and the laws by which states have sought to control it. A legal approach to this analysis, with its basic dig. tinetions between law and fact, can be particularly useful in answering General Taylor's questions.% Therefore, it is the purpose of this article to attempt a partial description of the difference between limited war today and the wars of the recent and distant past by contrasting the continual changing facts of war with the slower development of the legal rulea applicable to these facts. The ineffectiveness of many of the laws of war furnishes

* The opinions and eoncIu~ions presented herein are those of the ruthor and do not necenaarilv remesent the views of The Judee Advocate General's

* A diatinction at the antset between the law of w ~ r and the war itself

avoids the unnecessary complexities which arise when war IB considered as P legal condition in itself. For example, Quiney Wright's familiar deflnition of war 88 "the Legal condition which equally permit8 two or more hostile groups to eamy on a canput by wmed fore$," 1 Wright, A Stvdy of War 8 (1942). bnda to make more difficult an understanding of the distinction between law and fact. In an earlier article, Prmfeaaor Wrlght reasoned that where both belligerents disclaim an intention to make "war: "a state of war does not &at Until such time 88 third state8 recognize that it doea." Wnght, When Doer WW Eziat?, 26 Am. J. Int'l L. 362 at 36s (1832).John Baasett Moore, on the other hand, was critical of any attempt to plsee war "in B special legal category of ita own./' See Maore, The New Neutraltty Dofixad, 16 Army Ordnsnee 230 (1936). reprinted in 7 Moore, Collected Papem 43 (1844). See Green, The .?'.fure oi the "Wd'in Kovea, 4 Int'i L. Q. 462 (1951). and Pye, The Legal Stetus of the Korean Holtilitiss, 45 Gem. L. J. 48 (1856), for problems that are encountered in viewmg wor ~3 8 legal rather than B factual condition.

A00 89

JOSEPH

A LEGAL ANALYSIS OF THE CHANGES IN WAR*

BY MAJOR

MILITARY LAW REVIEWa valuable clue to the changing nature of war. This very ineffectiveness is often but R reflection of a change in the facts mhieh the particular rule assumed to exizt The contrast of law to facts will also assmt in Separating the meaningful from the irrelevant facts Of war. 11. THE FACT OF WAR

The historical analysis necessary to understand the drift of things today need not go back to ancient history. It IS only necessary to go back as far as the gear 1648 and the Treaty of Westphalia, the birth of the modern state spatem. because war has become primarily a contest between atates m this erstem To understand the changes in war Since 1648. a working factual definition of war must be obtained ujhich aill describe it as It ivad first employed by the new states. The Oxford-English Diitioniirv contains a definition of war which hdmirably describes it as it was first used. The definition has three elements. War 1s defined as: 1. A hostile contention 2. By means of armed forces 3. Carried on between states.'

1. FIRST ELEMEST-A HOSTILE COTTESTI0.V

   "Hostile contention" applies to the atmosphere in which war is waged. Von Clausewitz, in speaking of this element. terms it "conflict" and sees a hostile intention as it3 base. He further ob-Serves that since the Napoleonic Ware, hostile feeling has accompanied this intention, the feeling varyine with the importance and duration of the hostile interest Inrolsed. This century has furnished many examples of the presence of a hostile contention with the absence of actual hostilities Active resmence by one side is not essential to the creation of a state of mar. The absence of resistance an the part of Denmark did not alter the fact that Germany had made war on Denmark.

   Q

   12 Oxford-English Dictionary 78 (1833).'Intra-state civil WBTI have been omitted from this definiban because this article w~llbe confined to war a% part of che international polities be-tw... states.

   6 Van Clauaeaits, On War (Jollea trans1 1943)

   Since Clausewlti's period, Ideologies. particularly nationalism, hare become impartant factors ~n the eroirfh of the hoanle feehnpa engendered dunng wara.

   i During the n.ar ~rlrnei triale following IVor!d IVar 11, various German leaders w8r.e found gnilty of "aging aerreirive war spainst Denmark,Luxembourg and Csechaslouakia, despite rhe B

   thoae eauntriea. 1 Trial of The Maio? War CrLions1 Mllifsiy Tribunal at Nvrembsre 194.98.90 *'O 6OID

   CHANGES IN WAR

2. SECOND ELEMENT-BY MEANS OF ARMED FORCES

   This element has two distinct aspects, the individuals who comprise the forces and the arms used by them. Legal definitions of "armed forces" generally tend to restrict the term to the formal organized farces of the state BS distinguished from the civilian population. The firi three Geneva Conventions of 1949 contain the classic requirements for any armed force on land. They require that the members be organized, wear a distinctive sign, carry arms openly, and fight in accordance with the laws of war..' Therefore, the "armed force" must have an open, recognizable characteristic about it. However, the armed forces actually used by the states do not always fit this definition. Guerrilla and partisan armies are changing the recognizable characteristic previously possessed by the armed forces.8

   The second aspect of this second element concerns the weapons which inflict injury upon the enemy. The infiictian of injury is profoundly influenced by the advancement of science. Hostilities become more frightful as new arms are developed. Here in this awect of war has occurred the revolution which, more than any other single factor, has raised the question in General Taylor's mind.I0

3. THIRD ELEMENT-CARRIED ON BETWEEN STATES

   It is this third element which most concerns the practitioner of international law. The hostile contention by means of armed forces is carried an between states. The ancient phenomenon of

   Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Auglat 12, 1343, art. 13 [I0561 6U.S.T. & O.I.A. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31 (hereinafter cited BQ GWS) i Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Amed Farces at Sea. August 12, 1840, art. 13 [1056] 6 U.S.T. & O.I.A. 3211, T.I.A.S. No. 3363, 76 U.N.T.S. 86 (hereinafter cited as GWS Sea) ; Geneva Convention Relative to the Protection of Prisoners of War, August 12, 1843, art. 4 [I3561 6 U.S.T. & O.1.A. 3316, T.I.A.S. No. 3364, 15 U.N.T.S. 136 (hereinafter cited 8s GPW).e The dimevlty of identifiestion ha8 d m raised problems in sea warfare. In justifying unrestricted aubmarine warfare in the Pacific in World War 11, the U.S. Navy Department made the follawing announcement: "[Tlhe conditions under which Japan employed h8r so-called merchant shipping were such that It would be impossible to distinguish between 'merchant ships' and Japanese Army and Navy aurihsriea." Quoted m the Washingtan Sun.day Star, Feb. 3, 1946, 5 A, p. 7. See Tucker, The Law at War and Nsutrolity at Sea, 50 International Law Studies, U.S. Naval War College, at 4143 (1957), for B further dinevssian of this problem.

   1O"Thia massive rwolution wrought by nuclear weapona ieems to have overwhelmed the thinking of strsteeiats and statesmen dike, scattering in its wake trrdltland concepts of international behavior.'' Biiajoe, Un'ncon-vsntional Wartwe in the Nuclear ET., Orbis, Fall, 1060, p. 323.

   war has been adopted by the modern states. It is within the framework of the nation-state system that war must now be studied and its underlying nature understood."

   1. we7 and Politics

   Hoffman Nickerson defines war as "the use of organized force between two human groups pursuing contradictory policies, each group seeking to impme ita policy upon the other."'z Such a definition is broader than war 88 it will here be analyzed because the "human groups" mas not be states. However, Mr. Nickerson's definition is important in one aspect. It makes war a technique for furthering a policy. Karl von Clsusewitz was closer to the nature of war in the state system when he wrote, "War is nothing but a continuation of political intercourse by other means."" In this descriptive definition is the heart of the nature of war. It is the logical continuation of other forms of political intercourse that have preceded it in time.

   2. War and the Struggle fov Power

   It is necessary to look at these states in their relations with one another to see the proper position of war in that relationship. States in the state system are engaged in a constant struggle for power." The power each state seeks is the ability to determine the behavior of other states.'* The methods of infiuencing these other states are persuasion, compromise, barter, and coercion. Persuasion is comm~nly exemplified by propaganda. Diplomacy is a form of compromise. Barter is essentially economic pressure. War is the application of force in coercion.

   Because of the absence of a higher authority, the power Struggle is the very life of states. Their survival rest4 upon their

   The p m m t natmn.rtate system is B wioty of independent sovereign atstes acknowledging no higher temporal authority than themselves. It is P primitive society ruled by a pnmitive law. The idea of B...