Yakubovska N.O.
ПОД- СЕКЦИЯ 17. Международное публичное право.
Yakubovska N.O.
PhD, Associate Professor,
National University “Odessa Academy of Law”
LAW OF WAR: AT THE VANISHING POINT OF INTERNATIONAL LAW
The history of human civilization – is a history of wars. Any war causes deaths, sufferings, crippled fates, orphaned children... War by definition is a violation of all norms of humanity, human and divine laws. But wars are waging...
The centuries-old practice of has wars promoted the formation of a group of international legal norms, which is called differently – the law of war, the law of armed conflict, international humanitarian law – but usually understood as a branch of international law that regulates the “military activities and defines duties and responsibilities of participants and nonparticipants in conflict situations with the (usual) intention of preventing unnecessary suffering” [1, p. 5].
Unfortunately, the existence of such branch of international law, as the law of war, does not mean that mankind rejected the wars or going to do so in the near future. The fragile nature of the law of war was perfectly rendered by Professor Hersch Lauterpacht in the following words: “[i]f 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” [2, p. 382].
And this is a fairly common opinion. In fact, isn`t it better to try to put an end to wars but not to create some rules of their waging? As “the primordial duty” of international law is to ensure that “there shall be no violence among states” [3, p. 64]. And modern international law does contain a general prohibition on the use of force in international relations. Thus, why do we need rules to regulate armed conflicts if the war is prohibited?
If do not doubt the expediency of existence of such an area of international law as the law of war it is not out of place to challenge its effectiveness. It is not the news that the law of war is constantly violated. “No other area of international law is as vulnerable as law of war to the alternative charges of being either a naive moralist utopia or a blatant apology for state practice” [4, p. 225]. The law of war is the weakest area of international law, as “its mission, strictly speaking, is impossible” [5, p. 11]. And it could be explained by very nature of international law, enforcement of which is made by its actors.
The opinion that attempts to regulate conduct during armed conflict in fact legitimize the wars, making them more acceptable, also could be found in literature. As was said by Sydney Bailey, “the more war is subject to restrains, the more “thinkable” it becomes” [6, p. 6]. In the book “Of War and Law” David Kennedy wrote: “The laws of force provide the vocabulary not only for restraining the violence and incidence of war – but also for waging war and deciding to go to war…. [L]aw no longer stands outside violence, silent or prohibitive. Law also permits injury, as it privileges, channels, structures, legitimates, and facilitates acts of war” [7, p. 167].
Thus, according to David Kennedy, international law “in its attempt to subject war to its rule, has been absorbed by it and has now become but another war instrument” [7, p. 32]. Thus, maybe the law of war does positive harm, and had therefore should be abolished?
Quite often the law of war is criticized for its “obsoleteness” and inability to regulate the “new wars” as modern armed conflicts “are somewhat removed from the armed conflicts envisaged by the authors of the four 1949 Geneva Conventions and their accompanying Protocols of 1977” [8, p. 17]. Thus, the law of war was originally designed to regulate hostilities between the states or organizations with functions similar to the state armed forces. In such conflicts the parties pursue their goals by trying to defeat the enemy`s armed forces. But in the “new wars” the states ceases to be the sole and principal actors. “In the ‘new wars’, in contrast, warfare is no longer an instrument of politics, but it is itself politics” [9, p. 234]. Instead of defeating the enemy in a military sense and thus gaining a political victory, the aim of these conflicts is usually to change the ethnic composition of the region or country. Victims among civilians are no longer a “byproduct” of the war, but the end in itself. And modern law of war cannot provide its main purpose – to protect the civilian population, as this type of conflict differs from the wars, which law of war has been created to regulate. Such fundamental difference in social context of “old wars” and “new wars” resulted to almost complete disregard for international humanitarian law in contemporary armed conflicts.
Thus, the main reasons for criticism of the law of war, verging on the assumption that it is high time for it to disappear, are, first, the prohibition of war by international law and thus believes that the very existence of the law of war is illogical; secondly, the ineffectiveness of the law of war because of the very nature of international law; thirdly, the law`s of war inability to regulate the conduct of the parties of “new wars” because of its archaism.
Each of these views has some validity. However, one must be realistic. Wars will not disappear from the history of mankind. And if we do not have the possibility to eliminate them, international law should consider wars as an existing fact and take care of the softening of its most serious characteristics and harmful effects.
In determining my attitude to the law of war I follow the logic of the International Committee of the Red Cross, which tries to develop the rules of international humanitarian law. People who work there pragmatically think that the character of wars is changing, but they do not disappear. Consequently, the international humanitarian law cannot disappear. It rather should evolve in order to restrict the violence by certain limits, to protect civilians, prisoners, wounded, sick, etc. Therefore, the international humanitarian law should not be perturbed by the legality or illegality of armed conflict, it should not try to find out who is waging “fair” war and who is waging “aggressive” war, etc. It must pursue its primary goal – to help the victims of conflict.
Of course, the law of war is not always observed. But in this case we can draw an analogy with the criminal codes of the states. They are also violated quite often. However, the need for their existence is not disputed. The same is true to the law of war. Especially today, when so many powerful and sophisticated means of destruction are invented. And only the law of war could prevent its use.
When people like Hersch Lauterpacht, who piously believed in the law of war and stood up for it, expresses thoughts about its vanishing, one involuntarily put to doubt – is law of war is really working well, whether it works at all? To my opinion, looking through the history, the law of war continues to offer, in general, an adequate legal framework to regulate the conduct of participants in armed conflicts, as almost all international wars and some civil wars starting from the 18th century were softened by law of war. Of course, it is always desirable to soften wars more. Surely, violence happens even when the parties are trying to behave well. But I strongly believe that it would be worse if the law of war were not there. And it is not vanishing as little by little the states show more interest in its improvement and observance.
Literature:
1. Stephanie Carvin, Prisoners of America's wars: from the early republic to Guantanamo Columbia (New York: Columbia University Press, 2010)
2. Hersch Lauterpacht, ‘The Problem of the Revision of the Law of War’ (1952) BRIT. Y.B. INT’L L.
3. Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933)
4. Nicolas Lamp, ‘Conceptions of war and paradigms of compliance: the “new war” challenge to international humanitarian law’ (2011) J.C. & S.L., 16(2)
5. Geoffrey Best, Humanity in warfare: the modern history of the international law of armed conflicts (Routledge, 1983)
6. Sydney Dawson Bailey, War and Conscience in the Nuclear Age (New York: St. Martin`s Press, 1987)
7. David Kennedy, Of war and law (Princeton University Press, 2006)
8. Dino Kritsiotis, ‘International Humanitarian Law and the Disintegration of States’ (2001) Israel yearbook on human rights, Vol. 30
9. Nicolas Lamp, ‘Conceptions of war and paradigms of compliance: the “new war” challenge to international humanitarian law’ (2011) J.C. & S.L., 16(2)
