Alex de Waal
- War and Law since 1945 by Geoffrey Best
Oxford, 434 pp, £25.00, October 1994, ISBN 0 19 821991 1
- Mercy under Fire: War and the Global Humanitarian Community by Larry Minear and Thomas Weiss
Westview, 247 pp, £44.50, July 1995, ISBN 0 8133 2567 6
The ‘law of war’ is a paradox, an exercise by turns noble and futile. ‘A remedy must be found,’ Grotius wrote, ‘for those who believe that in war nothing is lawful, and for those for whom all things in war are lawful.’ Geoffrey Best, in his magnificent exposition of the modern pursuit of legal restraint on warfare, opens with another aphorism, from Hersch Lauterpacht: ‘If international law is, in some ways’ at the vanishing-point of law, the law of war is, perhaps even more conspicuously, at the vanishing-point of international law.’
The remarkable thing is that Grotius’s remedy does exist. Despite the obvious obstacles to any form of humanity in warfare, there are modest but genuine successes in legislating for, and achieving, restraint in the way that soldiers conduct war. As Best shows, generals and their lawyers take the laws of war very seriously indeed. International protocols and internal military guidelines give much latitude to commanders on the ground. This may make the law appear feeble, sometimes to the point of vacuity, but it is also its realism.
Chief among the paradoxes of the law of war is that it cannot be enforced. The moral opprobrium that has surrounded the use of poison gas is an exception that proves the rule; another is the fact that the first post-Nuremberg trials of military commanders for war crimes have only begun this year, in Ethiopia. In prolonged and desperate wars, generals (and politicians – it is foolish to believe that the ‘military mind’ is any more brutal than the civilian) repeatedly rewrite the moral rules to give themselves more latitude. Impunity is the order of the day – but so is a concern for basic humanity. To compound the irony, it is the beguiling possibility of the humanitarian writ at last being enforced, either by the United Nations or by powerful member states at the UN’s invitation, that has led directly to the law of war being undermined.
A year ago, the American Secretary of State, Warren Christopher, put his first-class legal brain to work trying to re-interpret the 1948 Genocide Convention in order to extricate the US Government from its clear duty ‘to prevent and punish the crime of genocide’ in Rwanda. The State Department directed its staff to say only that ‘acts of genocide may have been committed’. When this piece of legal chicanery was derided in the press, the State Department changed its line: the Genocide Convention merely ‘enabled’ signatories to act, rather than imposed a duty on them.
Something similar, if more insidious, is happening to the Geneva Conventions of 1949, the masterpiece of the laws of war – or ‘international humanitarian law’, as its proponents now prefer to call it. The change in terminology is more than the abandonment of monosyllables. Best is worried: ‘the fact is the word “humanitarian” has come to carry a slippery mixture of meanings and applications which facilitate ambiguous and manipulative uses.’ The usage ‘international humanitarian law’ – or worse still, ‘IHL’ – is not merely anodyne, it obscures the central tension between military necessity and humane conduct. ‘Humanitarianism’ has never been legally defined: the closest we get is knowing what it is not, as in the ruling by the International Court of Justice in The Hague that US aid to the Nicaraguan Contras was not ‘purely humanitarian’. Larry Minear and Thomas Weiss respond that ‘humanitarianism is simply what the International Committee of the Red Cross does.’