Wars are inevitable in a world where people have different views and ideologies in almost all aspects of life. It is often ironic that countries and international organizations would want to impose laws on war because, by its nature, war is a lawless event. However, the world, through consensus, compromises, and a desire for human posterity, has formulated laws to govern wars. The law of war, in international legal terms, refers to a public international law that stipulates acceptable and unacceptable behavior during physical conflicts between warring factions (Alexander 111). Such laws outline different metrics or justifications that people or countries could use to declare war on another party. They also specify the modalities through which opposing parties should use to treat victims of war, what types of weapons could be used in the conflict, and how to negotiate terms of surrender (International Committee of the Red Cross 6).
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The law of war is considered a special sub-branch of law because of the wide scope of issues it addresses, and the possible severity of the kinds of repercussions parties may suffer because of it (Alexander 110-113). The purposes of the laws of war are common throughout most international treaties addressing interstate conflicts. Some of the most common themes underlying the formulation of the laws of war are a desire to see wars achieve only those goals that cause wars in the first place and the will to end wars as soon as possible (International Committee of the Red Cross 6). Another purpose of formulating these laws is a will by warring factions to exclude people (civilians and innocent people) who are not engaged in the wars from their adverse effects (International Committee of the Red Cross 5-7). To the extent that these goals are commonly desired among different states, the true purpose of the laws of war is to mitigate the hardships associated with conflict, by protecting combatants and non-combatants from unnecessary suffering, safeguarding human rights (especially to those who fall victim to wars), and speeding the process of restoring peace (Liivoja 1157).
Throughout history, the laws of war have evolved to assume different and dynamic shapes. Such is the case with changing legislation and treaties binding countries and regions if they go to war. This paper explores the main drivers for the changes in legislation by reviewing historical records explaining the issue, through a review of the works of international lawyers, historians, and academicians. Additionally, in this paper, we focus on the views of two researchers, Witt and Hull, by evaluating their opinions regarding the main reasons for the evolution of the laws of war. We critically analyze their findings and explain which is one is superior, in the greater context of understanding which historical or contemporary issues had a greater effect on the evolution of the laws of war. However, before delving into these details, it is first important to understand the main drivers for the changes in the laws of war throughout history.
What were the Main Drivers for a Change of the Law of War throughout History?
Many wars fought in the past, and that exist today partly occurred because of religious differences. Before 1648, religious principles and differences regulated and influenced many wars. Stated differently, religion was not only a reason why people had to go to war but were also a doctrine that guided the actions of fighters, by defining their limitations and delimitations in combat (Bartels 42). According to Dorn, the Mahabharata, and the Torah (Old Testament) are among the earliest sources of the laws of war (22).
The book of Deuteronomy also highlights other sources of the law of war, which permeated throughout most countries that practiced Christianity. This book forbade warring parties from cutting trees during wars and often required aggressors to offer a peaceful solution to their enemies before besieging them (Dorn 16). The same religious excerpt outlines how soldiers should treat the women of their victims. It stipulates that the victors should not use them as slaves, or objects of sexual gratification. The Pax Dei movement is another religious doctrine that influenced the laws of war by defining what type of treatment Christians could expect during wars (Dorn 16). Such doctrines attracted the attention of the church regarding the types of weapons that people could use during wars.
Islam also regulated warfare in different parts of the world where people practiced it. For example, religion regulated how war prisoners should be treated. It forbade the victors from burning their houses or from executing their victims (Bartels 42-43). Several Islamic doctrines also prevented warring parties from mutilating the bodies of their victims or killing women and children. They also forbade people from cutting down trees (especially those that bore fruits) or destroying places of worship (Bartels 42-43). Most of these religious doctrines focused on the moral issues surrounding wars and refrained from tackling political, or legal, issues surrounding the same. However, in the late 16th century, a new force of political considerations emerged as a regulator of war, especially with the inception of the concept of sovereign states. A contemporary of Shakespeare, Alberico Gentili, affirms this fact through the emergence of international law, as an independent legal discipline that regulates global conflicts/wars (Bartels 42-43).
The Peace of Westphalia
After the peace of Westphalia agreement, signed in 1648, countries accepted the concept of sovereign states in global politics (Bartels 44-45). This development brought a paradigm shift in the formulation of the law of war. Stated differently, there was a shift from relying on religious reasoning to rational reasoning, as a basis for formulating codes of war. As Alexander observes, people shifted from moral reasoning to find “enlightened” reasons to fight each other (111). The main outcome of this process was the creation of the concept of “necessity.” In other words, there was general acceptance that war was justifiable if it was “necessary.” Similarly, international laws changed to accommodate this fact, granting the use of excessive force if it was necessary to do so. This philosophy started appearing in major academic and social works, such as that of Samuel von Pufendorf (a post-Westphalian writer) in his work titled, “On the duty of man and citizen” (Bartels 45). Through his work, he drew attention to the need to respect prudential limits during wars. This work (and many others) also drew our attention to a paradigm shift in how people perceive acts of violence as “necessary.”
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The peace of Westphalia was integral to the application of international law because this law is implemented on the premise that there are two or more sovereign parties. In other words, different countries had to meet certain criteria, such as those outlined as a prerequisite for UN membership, to become legitimate aggressors or legitimate enemies. By doing so, they would be subject to the law of war (Bartels 45).
Technological change is a significant driver for the change of laws of war throughout history. Particularly, advances in military technology created a need to change the rules governing war because of new consequences of using such weapons. In the contemporary world, the development of weapons of mass destruction and the accumulation of deadly nuclear arsenal, by some of the world’s major powers, are testaments to the need for an evaluation of the kinds of weapons that could be used in wars. Indeed, these weapons can wipe out cities or even countries at a time. In fact, according to Liivoja (1157), some developers of these military technologies are the true advocates of change of laws because they understand the deadly effects of military technological change on modern warfare, and their possible effects on societies.
What were the Main Reasons for Changes in the Law of War?
Witt based his arguments on a review of Lincoln’s war policies during the American civil war (1). According to his analysis, in the article titled, “The laws of War in American History,” some of the laws of war practiced by Lincoln in the 1800s significantly affected the rules of modern warfare, as we know them today (3). For example, he says that Lincoln prohibited the use of poisonous gases and torture during the civil war (Witt 359). Such policies remain in effect today through the Geneva Convention of 1949 (Solis 91). A disregard of this prohibition could come with serious consequences for parties that violate it. More recently, the alleged use of chemical weapons in Syria in 2017, by the Syrian government on its people, highlights the seriousness of such violations because international organizations and the US consider imposing serious consequences on the Syrian regime. This recent event shows us the link between Lincoln’s prohibitions of the 1800s and today’s laws of war.
Similarly, the recent war in Libya that saw the ouster and the death of long-serving ruler, Muammar Gaddafi, also draws a link between one of Lincoln’s prohibition law, which demanded the separation of civilians from combatants, as a law of war. Gaddafi failed to observe this distinction and, according to some observers, was at fault. Therefore, the “no-fly zone policy” imposed by the UN on Libya was justifiable. It led to the ouster of the long-serving ruler. There are many more comparisons to make between today’s wars and Lincoln’s war code outlined by Witt (359). A common theme in this analysis is humanitarian issues that Lincoln recognized and wished to implement, as part of his war code. Witt supports this argument by saying that the code was both a humanitarian shield and a tool for dispensing justice on those who were on the wrong and on those who wanted to harm innocent civilians (218). Broadly, Lincoln’s code of war during the American civil war outlines a specific set of rules of engagement that focused on upholding humanitarian values as precedence for protecting human rights. Generally, this precedence outlawed torture, destruction of property, the use of poisonous gas on enemies, and cruelty on civilians, combatants and innocent people (Witt 359). These principles are enshrined in today’s laws of war and are the basis for the evolution of war in many western societies.
Different Interpretations of Law
Unlike Witt, Hull explored the evolution of the laws of war by analysing the conduct of different states during the First World War. According to her, the realities of war are not often far away from the frontlines (Hull 12). She focused her analysis on the different interpretations of the law of war by different factions fighting in the world war. Particularly, she reminds us that Britain (and its allies) and Germany (and its allies) operated using different sets of laws of war during the First World War, thereby leading to widespread bloodshed and disregard for human rights (Price 1-3). Germany operated on the premise that military necessities were primary considerations before all others (Price 1-3). Comparatively, Britain operated on the premise that a regard for the rules of law preceded military concerns. In Hull’s analysis, both parties subjected different aspects of the war to different legal interpretations (3). For example, the wanton destruction of property and the loss of lives committed by Germany in Belgium was a sign to Britain, and its allies, that the country did not respect the existing customary laws of war (Hull 16). However, according to the Germans, their actions were justifiable because they were “military necessities.” German military experts and scholars who argued that international conventions on war should not circumscribe military strategies or concerns further voiced this view (Price 1-3).
These different interpretations of the law were largely responsible for the widespread destruction and bloodshed that characterized the First World War. Furthermore, it led to the escalation of hostilities in a way that could have been otherwise prevented if there was a mutual interpretation of the rules of war. Notably, as Price (1-3) points out, the pursuit of state power and wild security concerns were largely responsible for the different interpretations of the laws of war and the unwarranted escalation of conflict. Since different parties read from different scripts regarding the interpretation of the laws of war, it was necessary to overhaul the laws of war again. Subsequent changes to these laws led to the formulation of the Geneva Convention, which guides the actions of different states in war (International Committee of the Red Cross 6).
Whose Argument is better and Why?
From the above analogy, we find that historians highlighted humanitarian concerns and misinterpretations of law, as some of the main reasons for a change of the law of war. I believe that the humanitarian argument is more valid than the argument focusing on different interpretations of law because the latter argument is mostly ego-driven and is bordering on fostering, or supporting, imperialistic tendencies by some of the world’s major powers. For example, if we were to narrow down on Hull’s analogy of the first world war, we find that Germany contravened international laws of war because it was pursuing an imperialistic agenda (16).
Furthermore, it was motivated by greater security concerns to attack Belgium. Such motivations are often selfish and individualistic. In my view, this is part of the problem surrounding the implementation of international laws of war today because major world powers often consider their personal interests when making important decisions about war. Comparatively, humanitarian concerns are without such issues because they focus on one common theme binding all parties – humanity (International Committee of the Red Cross 3). Indeed, there is no reason to commit atrocious acts on innocent people, or civilians, during wars, or to cause unnecessary suffering to people who are largely innocent and helpless during conflicts. This view closely resembles that explained by Witt, through his analysis of the Lincoln’s code (359). It is further enshrined in the Universal Declaration of Human Rights, which bind many UN member nations.
The humanitarian view of the law of warfare is mostly concerned with moderating the conduct of armed conflict and mitigating the suffering that may ensue from it. This is different from the Hague law of war, which is mostly concerned, with streamlining the modalities of wars. Nonetheless, this point of view does not mean that the modalities or war are irrelevant; instead, it shows that the humanitarian concerns and the concerns surrounding modalities of war may overlap in protecting the greater interest of posterity for humanity. However, one of them (humanitarian) is of greater value, if both concerns were to be compared.
What do Historians agree on?
Motivated by historical and contemporary concerns, many international lawyers and historians agree that the evolution of the law of war has focused on two issues. The first one is the humanization of the law of war and the second one is characterized by the story of imperialism and oppression. Many historians also agree that the law of war has mostly existed to limit the destruction of human societies that could occur because of war. As Alexander observes, the jurists, the knights of the middle ages and even the ancients agree that the laws of war have been set up to limit the destruction of war (111-112). This finding is not only limited to western historians, because other countries in the East, such as China, Japan and India, also formulated their own sets of laws to govern warfare (Alexander 111-112). Despite the universality of the concerns that wars could cause serious damages to human societies, there have been significant setbacks in the implementation of the laws of war throughout history. International lawyers say that the formulation of the lieber code was among the first major efforts to provide a unique set of humanitarian principles governing warfare, which all nations should subscribe to (Alexander 111-112). Such attempts have significantly reduced misinterpretations of the laws of war in many regions of the world. The Red Cross was founded based on the realization of the need for these changes and the importance of humanitarian interventions during wars (International Committee of the Red Cross 7). Most of the principles governing it are safeguarded in the 1907 Hague Convention and the 1949 Geneva Convention (International Committee of the Red Cross 8). Others are stipulated in the 1977 Additional Protocols (Alexander 111-112).
Researchers also agree that the evolution of the law of war has followed a narrow prism of imperialism and oppression by some dominant and major world powers (Price 3). This ideology is opposed to the history of compassion and civilization that led to the birth of humanitarian law in wars. Stemming from post-colonial and critical methodologies, some historians have demonstrated that western greed and imperialism have often trampled over humanitarian concerns (Hull 12; Price 3). Such acts have often exposed civilians to unnecessary suffering and created excuses for the legitimization of human suffering in some countries, or communities. Thus, historians agree that many of the international treaties of war have largely been based on a careful balance between pragmatism and compromise. The 1907 Hague convention highlighted this problem because it did not challenge the use of military strategies over humanitarian concerns, thereby exposing large cohorts of people to human suffering during wars (Alexander 111-112). The Nuremberg tribunal was another case of a misguided application of the law of war because it failed to prosecute people who were accused of committing atrocious acts, despite the existence of sufficient evidence to do so (Alexander 111-112). Nonetheless, the balance between humanitarian and military concerns characterizes the main areas where researchers agree that the evolution of the law of war converge.
What do Historians disagree on?
Although historians agree that the nature of war is changing, they disagree on the nature and extent of such types of change. For example, Lamb (123) says that different states today are grappling with the problem of determining an agreed set of rules of war to govern all societies. Slaughter, another historian, delves into the same argument by saying that she does not foresee a possibility of major ground invasions characterizing future conflicts (Lamb 123). Some historians, such as Bobbit and Slaughter, agree on the fact that wars may change and become an affair of states, as opposed to national communities (Lamb 123). They explore this issue further by saying that the decoupling of states and the national community may alter the essence of war and make it a prerogative of governments, and not necessarily the people that they represent (Lamb 123). Relative to this remark, Slaughter talks about the “individualization of war” (Lamb 123). While some historians say that today’s type of war (terrorism, insurgencies and others) are a type-four war, some scholars, such as Freedman, say these types of wars have existed for a long time in history (Liivoja 1159). The key point to understand here is that the researchers do not claim that war, in itself is new; instead, their arguments differ based on whether change is an integral part of war.
The disputes in the nature of change come from a clash between the observance of humanitarian principles, during wars, and the respect for codes of warfare that have existed in the past. For example, Alexander says that international lawyers may bolster any claim they have about humanitarian principles of war by tracing its application to a historical event (111-112). Indeed, international lawyers could claim that a legislative piece of humanitarian law is valid only if it subscribes to a long tradition of its implementation. However, some lawyers and historians could also use the same analogy to claim the invalidity of certain tenets of the humanitarian law, if they stem from a long tradition of oppression. Using such arguments, they could attack, or change, the law of war. Thus, the history of the law of war does not only inform it, but has led to its change.
At the onset of this paper, we explained the purpose of the law of war as being focused on minimising the effects of conflicts between states. Throughout history, we have found evidence of different interpretations of these laws and the changing interests of different states that have led to the evolution of these laws. Particularly, we examined the views of Hull and Witt in their analysis of the main reasons for the evolution of these laws. Witt’s views emerged as the superior analogy because humanitarian concerns are dotted all over different treaties and conventions that guide warfare today. Furthermore, many jurisdictions around the world are often concerned with how wars affect societies and human welfare. Such concerns are more poignant in international doctrines surrounding warfare. They have also characterized the evolution of the law of war since the Lincoln era. The opposite view, which presupposes that the laws of war have evolved because of imperialistic tendencies and the quest to oppress some societies, are also credible, but are overshadowed by the widespread influence of humanitarian issues in global political issues surrounding historical and contemporary wars.
Religion and the treaty of Westphalia provided us with a historical account of the main drivers of changes in laws because they explained where societies drew their inspiration to minimize the effects of war and where modern laws of wars stem from. While these concerns were prevalent in early history, today’s inspirations to change laws of war are mostly influenced by technological advances. The development of weapons of mass destruction and the accumulation of deadly nuclear arsenal, by some of the world’s major powers, are some representations of technological advances in military warfare that have preoccupied the attention of many global political players today. Based on the rapid advancements of such technology, a future where technological changes will significantly determine the evolution of the laws of war is probable.
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