15 Years Later: A History of the Forever War and the Laws of War (Part 1 of 2)

by Boyd Van Dijk

[Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He holds degrees in History and Political Science from the University of Amsterdam and Columbia University. He is currently working on a new international history of the Geneva Conventions of 1949.]

Fifteen years ago, the longest war in American history began. Following the 9/11 attacks the United States Congress passed an Authorization to Use Military Force (AUMF). Shortly after, the Bush Administration decided to question the relevance of the 1949 Geneva Conventions, a position recently re-endorsed by the Republican presidential candidate. Since then, consecutive US governments have used that AUMF to justify their effective continuation of the so-called “War on Terror.” Armed operations, from drone strikes to special operations, have taken place in areas across the globe, most recently in Syria and Iraq as to fight ISIS, a terrorist organization originating in a period long after 9/11. Some have, therefore, spoken of a ”forever war.”

In two provocative and historically-rich contributions for Dissent and Just Security, Harvard Law professor Samuel Moyn asked whether our preoccupation with making war more humane (“hygienic”) has perhaps led to this outcome of endless fighting. By contrast, constitutional lawyer David Cole has (rightfully) pointed out that most civil liberties activists have actually done both: they have criticized Washington’s track record of endless war and its violations of the laws of war. There is “little evidence,” he notes, which could show that their concerns about making wars less inhumane have led to a softening of their criticisms towards the US government’s continuing effort to wage war. Clearly, this debate has a certain resonance with the ongoing controversies surrounding the tension between retribution and peace – think of the ICC’s intervention in Sudan, or that of Human Rights Watch in Colombia most recently.

Strikingly, however, both experts seem to have a very selective – and problematic – understanding of the historically ambiguous, yet constantly changing relationship between the two fields of international law in wartime – jus in bello and jus ad bellum. In this post, adhering to Moyn’s call for a new history of this forever war and its relationship with those laws and principles regulating its conduct, I will shed light on this often misunderstood history by arguing that it is far more contradictory, if not paradoxical, and definitely less uniform than what is commonly assumed.

Lieber and Belligerent Equality

While referring to the genesis of the Red Cross movement in the 1860s and seeking to challenge particularly certain triumphalist accounts, Moyn defines the laws of war as essentially a tradition that seeks to make war more humane. However, to quote the Austrian-American jurist Joseph Kunz, this movement owed less to professors, statesmen, or humanitarians, than to soldiers, such as Francis Lieber. A war veteran, first, and a legal scholar at Columbia College, second, Lieber prepared the well-known and influential code governing the conduct of Union soldiers during the US Civil War. In contrast to those narratives built upon the founding fathers of the Red Cross seeking to alleviate the suffering of (certain) victims of war, Lieber, another early advocate of the laws of war in the nineteenth century, held the view that one could allow for forms of suffering to occur so as to end wars and injustice – slavery, for instance – quickly. In line with this maxim, President Lincoln, trying to increase pressure on the South’s slave regime, decided to halt the exchanges of prisoners of war with his enemy, causing a major inflation of the death toll in the war’s already overcrowded POW-camps.

It is important not to forget that Lieber’s idea, instrumentalizing the laws of war by making them dependent upon a just – or unjust – cause, combined with a comparatively strong if not distinct notion of military necessity, has been subsequently endorsed by many other jurists. In the 1940s, the Allied prosecutors at the Tokyo War Crimes Trials – as well as those in Nuremberg, were focused less on crimes in war than on war itself as crime (see this piece by Moyn). They argued that, since aggressive war was prohibited by the 1928 Kellogg-Briand Pact, the death of any soldier by the invader was a murder, rather than a legal act of war. Similarly, a few years later, when discussing the revision of the Hague and Geneva Conventions, an Israeli delegate, a survivor of the Shoah, and a soldier too, noted that:

“Up to the last war combatants alone were involved in the event of conflict. That was no longer the case during the Second World War [when] a belligerent power [i.e. Nazi Germany] was manifestly bent on exterminating a whole people, massacring women and children in cold bold. What should a people do in such circumstances? Should it not rightly and dutifully seek to defend itself?”

Like many members of certain national liberation movements, later Communist states, or other Jewish survivors, including Raphael Lemkin, the godfather of the Genocide Convention, the Israeli delegate demanded lowering the law’s threshold for those acting against genocidal and/or racist rule. In doing so, he questioned the doctrine of so-called ‘belligerent equality’, which means that the laws of war apply equally to everyone regardless of the (in-)justice of his or her cause. If accepted, the denial of this principle might give, for instance, irregulars having a just cause (e.g. fighting occupation, or a war of national liberation) the right to target civilians with enemy ties indiscriminately, to take them hostage, or to use ‘human shields’ when fighting in an asymmetrical war.

Ironically, as a typical example of the Arendt-ian boomerang effect, this very same principle was re-addressed in the 1970s, when the Additional Protocols were being discussed, by certain delegates who criticized the Israeli occupation of Palestine – and wished to let go of this belligerent equality principle. Around the same period, the Communist North Vietnamese even argued, loosely based upon Lenin’s revolutionary ideas of just and unjust wars, that, as they considered themselves as victims of aggression by the United States, they were not bound to give POW rights to captured US personnel (‘war criminals’), a radical position they (unsuccessfully) defended at the Protocols’ negotiating table. Since then, a similar critique – though originating from a very different legal-intellectual starting point – has been raised by certain revisionist political theorists, such as Jeff McMahan and Cécile Fabre of All Souls College, who have questioned Michael Walzer’s embrace of belligerent equality and/or legitimate authority. Again, it shows the great diversity and constantly changing set of ideas underpinning the relationship between these two legal domains in wartime – jus ad bellum and jus in bello.

The Great War

Like the 1970s, the period up to the Great War witnessed a great deal of interest in the laws of war, a discipline then still highly Eurocentric, very strictly defined, or consciously left vague in light of certain dominant state interests (see the then ratified law’s silence on blockading).

During these years, the laws of war received extensive study by jurists and soldiers alike. Established by the “men of 1873” [http://www.cambridge.org/jo/academic/subjects/law/public-international-law/gentle-civilizer-nations-rise-and-fall-international-law-18701960] following an initiative supported by Lieber, the Institut de Droit International promoted the development of the laws of war. Numerous publications in various languages were published on this topic. Exemplary of this growing interest in the laws of war were the Hague Conventions of 1899 and 1907: the majority of their provisions do not affect the field of peacemaking – aggressive war was still considered lawful, but rather with the regulation of warmaking. As some would complain later, the “moral forces” of this era were “diverted” from the former to the latter – a Moyn-ian criticism avant la lettre.

With the outbreak of savagery on the “civilized” European continent in August 1914 (see my contribution https://muse.jhu.edu/article/627404), the tide slowly turned in favor of those critics. At the end of World War I, many (and especially jurists themselves) claimed that rules for warfare were useless because they will be broken; war can only be abolished, not regulated. Their attention then shifted to alternative plans in order to “end all wars,” such as collective security and “peace through justice,” culminating in the League of Nations’ Covenant and the 1928 Kellogg-Briand Pact (see here), even though neither of these instruments banned war, nor reprisals, altogether – an element which is often forgotten in anthologies describing their history.

By banning certain types of war, the study of the laws regulating the conduct of war lost its appeal almost entirely. Various law schools removed the subject from their curricula; the Institut de Droit International and l’Académie de droit international de La Haye banned it too, although only for a brief period of time. Neither did the legal specialists of the League of Nations put much interest in it, except with regard to regulating gas warfare – framed as part of the still far more popular project of disarmament – that was finally covered by the Geneva Protocol, signed in 1925. As a result of this lack of interest, contrasting with contemporaries’ growing appetite for the effort to taboo war itself by means of codifying law, the ICRC faced increasing criticisms as well as competition (e.g. from the American-dominated League of Red Cross Societies working exclusively in peacetime) in the interwar period. Or, as the Cambridge legal scholar Hersch Lauterpacht would later note, “if international law [was], in some ways, at the vanishing point of law, the law of war [was], perhaps even more conspicuously, at the vanishing point of international law.”

So what? Most importantly, it forced the ICRC, as well as its partners like the Belgian military physician Jules Voncken, of the International Committee of Military Medicine and Pharmacy, to pick its battles very carefully – with sometimes devastating results. For example, in the 1920s, it chose to first solve the allegedly “easier” question of regulating military imprisonment, which led to the acceptance of the POW Convention in 1929, as opposed to that of civilians in occupied territory, a matter which was for the first time seriously addressed only in the 1930s when the international system was breaking down rapidly.

What was the effect of this legal lacuna? Above all, it left civilians during the Second World War extremely vulnerable. In turn, this, a lack of comprehensive but strong codified protections for civilians, made it more challenging for Allied war crimes tribunals after 1945 to condemn those atrocities perpetrated against this group of victims. Particularly telling in this regard was the verdict of the (in-)famous Hostages Trial, held from 1947 to 1948. Its judges had to admit that the Nazis’ vicious counterinsurgency policies, featuring the taking of hostages, reprisal killings, and the summary executions of partisans, were mostly lawful considering the existing law’s permissiveness on these points – a warning from history especially for those wishing to prioritize one field over another. As important, the verdict revealed too how jurists’ perceptions of the idea of military necessity, or that of the boundaries between what is considered humane or savage, changed quite radically over time, both materially as well as in scope.

Monday, my second post will further reflect upon these and other questions, such as how the ICRC, as the guardian and promoter of the Geneva Conventions, struggled during the Cold War with questions of peace and injustice.

http://opiniojuris.org/2016/10/07/15-years-later-a-history-of-the-forever-war-and-the-laws-of-war-part-1-of-2/

5 Responses

  1. Hello,

    This is clearly a very thoughtful post, and I’m looking forward to printing it out and reading it closely. One line jumped out to me, so I thought I would ask about it.

    You refer to “Lieber’s idea, instrumentalizing the laws of war by making them dependent upon a just – or unjust – cause.” Witt makes a similar claim, but I find it hard to accept. Article 67 of the Lieber Code states that

    “The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant.”

    The first clause seems to reject any legal jus ad bellum in favor of the idea that war is a sovereign prerogative. The second clause invokes the regular war tradition, which historically contrasted and competed with the just war tradition. And the last clause suggests the independence of legal jus in bello from moral jus ad bellum.

    My understanding is that the Lieber Code purported to identify legal rules binding on both sides, Union and Confederacy. What was lawful for the Union was lawful for the Confederacy. Indeed, in principle, it would have been lawful for the Confederacy to free slaves in Union territory (whether they would have done so is a different matter). So I’m not persuaded that Lieber made the laws of war dependent on a just or unjust cause.

    You’ve clearly given these issues a great deal of thought. Do let me know what I’m missing.

    Thanks in advance, and looking forward to a close read,

    Adil

  2. Thanks for a very interesting post. Lots to say, but let me begin with a follow up to Adil’s post and a very detailed comment. Unlike Adil, I agree with you and Witt that Lieber’s Code is an admixture of ius in bello and ius ad bellum (I acknowledge this here: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e2126), but I think we disagree on the particulars and the wider implications of this conclusion.

    You say: “In line with this maxim, President Lincoln, trying to increase pressure on the South’s slave regime, decided to halt the exchanges of prisoners of war with his enemy, causing a major inflation of the death toll in the war’s already overcrowded POW-camps.”

    This is an oversimplification. Lincoln’s decision had little to do with military necessity and harsh wars ending suffering. It was tit for tat retaliation for specific law of war violations (why this matters is explained here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2781681), rather than a general approach to waging war. It was a perfectly legal and legitimate – by their standards – method of enforcing the laws of war.

    You may also be overestimating the relevance of the Code to military practice in 1861-1865 – it is fairly uncontroversial that military commanders ignored the Lieber Code, whether it be art. 67 cited by Adil in support of his argument or art. 29 which supports your conclusion (‘the more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief’).

    Which is why I think it is something of an anachronism to draw this conclusion: “It is important not to forget that Lieber’s idea, instrumentalizing the laws of war by making them dependent upon a just – or unjust – cause…” That may make sense from the perspective of 2016, but does the sharp distinction on which your comment is premised – the separation of ius ad bellum and ius in bello – reflect the realities of 1863? In that sense, I agree with Adil’s remark that you may be overstating your case. Can we fault Lieber for something that was taken for granted in 1863? And, crucially, if this is an anachronism, how would this influence the broader narrative you are trying to unpack?

    In short, my guess is you may be overestimating the importance of the Lieber Code and misinterpreting specific wartime events to suit your own narrative… Mind you, my comments are narrowly tailored to the specific events I highlighted. Your post is fascinating and I look forward to hearing your thoughts about this…

  3. Thank you for these two terrific responses. You both really forced me to reflect upon my own post. This is what a true debate should be about – thanks also to the editors of OJ.

    Let me first discuss the powerful response from Adil – and then commented upon by Patryk himself. Leaving aside the issues of the recognition of belligerency, insurgency, or that of the South itself – which each had an impact upon the larger question of legitimate authority/belligerent equality, what I meant to say is that the Lieber Code, and its interpretation by others, including Lincoln, somewhat blurs the distinction between both fields in wartime – jus in bello and jus ad bellum. (I hope we can also have a discussion about the implications of including the increasingly popular term of ‘jus post bellum’.) I believe both John and Patryk have shown this element quite clearly in their respective contributions – thank you for bringing them up, Patryk.

    In addition to these studies, I also recognize a broader sense of the law’s instrumentalizing in favor of a ‘higher cause’ – eg. ‘humanity’, anti-slavery, ‘sharp wars’, etc. It is an element that features prominently in a great variety of other legal-intellectual currents too – see Arendt’s criticisms. At the same time, this configuration of the Code has only an intellectually superficial similarity with those other doctrines discussing the relationship between just war theory and the laws of war. I am thus far from trying to make a claim that the Code should be understood as being at the root of those later attempts blurring that distinction. Nor have I sought to make any general claim about the Code’s application throughout time – here I fully agree with Patrick’s comments. Rather, I have tried to limit my post’s argument to showing the Code’s distinct – and military – origins, its ‘early’ blurring of the distinction between both legal realms, and its importance for the law’s future development.

    Thanks again for bringing up some of these problems of my post. I am sure we still have a lot more to talk about.

  4. Thanks Boyd. Best of luck with the project.

  5. Of course, it is always hard to interpret Lieber, because the Code has many different angles to it.

    But in terms of the instrumental point that Witt makes, I don’t think Lieber’s “instrumentalization” requires the collapse of jus ad bellum and jus in bello. Rather, it just means that the permissibility of tactics in war requires that they be tied to the war aim–whatever that war aim. This is Witt’s point. This doesn’t collapse or mix ad bellum with in bello. In fact, just the reverse. It means that in bello is independent of ad bellum because a tactic can be legitimate under jus in bello if it is necessary to win an unjust war. This is exactly the scheme we have today. Even unjust aggressors under jus ad bellum can fight wars that comply with jus in bello.

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