15 Years Later: A History of the Forever War and the Laws of War (Part 2 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. His first post can be found here.]

In my first post I discussed the historical origins of the ideas underpinning the relationship between war and peace, and those rules regulating them – and demonstrated the risks that arise from prioritizing one field over another. This second post will bring the story forward to today.

The United Nations, ICRC, and IHL

The United Nations, like its predecessor the League of Nations, was initially also very skeptical about saying anything regarding the laws of war. Largely in line with the League’s Covenant, the UN Charter remained completely silent on this issue, mainly out of fear that it might undermine its wish to re-create stability between the Great Powers and lasting peace following the defeat of the Axis powers. In light of these attempts to ban most types of war (except of self defense), Jesús Yepes, the Colombian representative at the International Law Commission, said “it would certainly create an unfortunate impression on public opinion if the laws of war were included in the list of topics for codification.” Whereas some of its state representatives demanded the laws of war’s further development, the ILC as a whole finally removed the subject from its drafting agenda. This situation changed gradually only in the late 1950s – though arguably more so in the period directly afterwards.

At this time, certain prejudices or hostilities towards the laws of war started to slowly evolve, partly due to the UN Secretariat and the General Assembly’s progressive engagement with “reaffirming” and “developing” the Geneva Conventions, a terminology which had to prevent particular states from getting the impression they were trying to fundamentally revise the original treaties. This change in attention of the UN’s bureaucracy was a direct response to its most recent witnessing of violations and other legal defects that were exposed during the wars of the Cold War and decolonization, for instance in Algeria (see Fabian Klose’s article).

As a result of this change in attitudes towards the laws of war – a critical alteration which is badly in need of historical interpretation – there was a revival in interest, both intellectually as well as globally. The Carnegie Endowment for International Peace, originally skeptical about studying the topic, started to regularly publish reports about it. Similarly, the United Nations, like the ICRC, began preparing for the revision of the Geneva Conventions. In 1968, with the twenty years anniversary of its adoption of the Universal Declaration of Human Rights – and in light of its witnessing of forms of impunity in Vietnam and Palestine, the General Assembly accepted its so-called “Teheran Resolution,” demanding the recognition of human rights in wartime. Soon after, the UN Secretary-General published one of his famous reports, entitled “Respect for Human Rights in Armed Conflicts,” which helped to further stimulate the overall drafting process.

In other words, the UN, under the strong influence of its Human Rights Division led by the former wartime exile and Belgian jurist Marc Schreiber, broke almost completely with its original skepticism towards the idea of regulating warfare. Conversely, the ICRC, originally strictly limiting its focus to regulating war alone, gradually adopted certain elements of peace activism and universalism in its own rhetorical devices, mostly in light of pressures caused by the Cold War and decolonization.

While often neglected in the still booming human rights historiography, the Teheran Resolution constituted not just a major break in the UN’s own history, but it also showed the increasing overlap and cross-fertilization between originally quite separate – though far from distinct – initiatives and fields of international law. Around this period, Jean Pictet, one of the many influential drafters of the 1949 Geneva Conventions, coined the phrase of “international humanitarian law” (IHL), a term that incorporated different fields of law, including human rights law, “Geneva Law,” “Hague Law,” and possibly even the laws of peace, revealing the ever changing boundaries between these different legal realms. In 1970, he and others also helped to establish the International Institute of Humanitarian Law, in San Remo. At the same time, his organization, working closely together with (post-)colonial governments, felt forced to balance its humanitarian interests, which were informed by its fundamental principles of (Swiss) neutrality, independence, and impartiality (see Andrew Thompson’s article https://www.icrc.org/en/international-review/article/humanitarian-principles-put-test-challenges-humanitarian-action-during). Accordingly, it picked its battles strategically. Among other things, it expressed certain reservations when confronted with initiatives it saw as being ‘far too political’, for instance those demanding the end of ‘Western imperialism’, or certain racist regimes (Jim Crow laws, apartheid).

One example of this hesitant attitude of the ICRC can be seen in the fact that it kept a certain distance from particular peace movements, such as the World Peace Council that was under a strong Communist influence. In the 1950s, it attracted the attention of numerous activists, from Jean-Paul Sartre, Bertrand Russell to W.E.B. Du Bois, who sought to remove, as they claimed, the “causes” – e.g. colonialism, racism, marketism – rather than the “symptoms” of war – protecting hospitals in imperial wars. While being an observer at some of these Council’s meetings, the ICRC took a distance from the views at such gatherings, mainly out of fear they might potentially undermine its own (Swiss) humanitarian interests.

Still, in the wake of increasing superpower tensions and heated debates surrounding the topics of Third World-ism, peace activism, anti-racism, human rights, and civil liberties, the ICRC felt obliged to bring some of these efforts into line with its own ‘mental maps’, as it saw itself as a promotor of peace, for instance, although – as A.J.P. Taylor once noted – it preferred to see itself as pacifistic, rather than pacifist.

Take for example the ICRC’s application for the Nobel Peace Prize of 1963, which was sent by Pictet to his intermediary. In this document, it admitted forthrightly that it was often criticized for being “an obstacle to attempts to outlaw war,” or that in rendering war less atrocious it had made it “less detested.” While admitting that its work was not “completely pacifist,” it said that it essentially constituted “acts of peace,” thereby referring to its calls upon parties to abolish atomic warfare, to make a truce, or to create “inviolable areas” for wounded and sick soldiers where “fire and the sword had no place.” In addition to these examples, the ICRC further suggested that it had helped to bring about a so-called “advent of ethical ideas,” leading to a situation in which the “political and military interests of states (…) [are] no longer the only ones concerned.” In connection to this, it claimed that “its existence, its work, its attitude, [were] a living protest against the unleashing of material forces” – a clear reference to the recent Cuba Crisis and its threat of a nuclear Holocaust.

To sum up, at a time when the anniversary of the post-September 11th AUMF and the commencement of the “forever war” continues to attract popular and scholarly attention, it is worth remembering three lessons about its complicated relationship with especially the laws of war. First, by moving beyond overly simplistic dichotomies or anachronistic suppositions, the laws of war are about far more than just making war more humane. Its history has been shaped by a mosaic of ideas, both progressive and deeply conservative, as well as states, armies, national liberation movements, international organizations to humanitarians, including the ICRC.

Second, instead of being legal comrades in arms, advocates of the laws of war and those fighting against injustice and for peace have frequently been uncomfortable bedfellows. And, lastly, it is vital to remember that this relationship, featuring a history of major contradictions, paradoxes, potentials, and limits, is far less teleological, or unitary, than what many have said so far. Sometimes they, the work of the laws of war and that of peacemaking, overlap and work cooperatively, whereas at other times they operate completely independently, or even work in ways going directly against each other, with occasionally potentially dangerous implications in light of relatively new technological (e.g. drones, autonomous weapons), legal (such as the 9/11 AUMF, the responsibility to protect), and certain ideological developments (the rise of emergency doctrines).

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

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