Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

Neither the purpose nor effect of the jus in bello was to forbid the robust use of force. Although the laws of war always included a humanitarian element--as early as the 1580s, Spanish publicist Balthazar Ayala noted that the "intentional killing of innocent persons ... is not allowable in war"--they were originally developed to benefit soldiers and were shaped by the imperatives of military necessity. The balance between military necessity and humanitarian considerations was struck using the principles of "distinction" (only combatants and military objectives may be targeted for attack) and "proportionality" (the use of force must balance military necessity against the likely damage to civilians or civilian objects).

The overall result was a set of rules that were accepted as a positive good by all civilized states. These rules can be broadly summarized as follows: (1) only sovereign states have the right to make war; (2) civilians cannot be deliberately attacked; (3) combatants can be attacked either en masse or individually; (4) quarter is to be granted when sought; (5) lawful combatants, when taken prisoner or otherwise incapacitated by wounds, are to be accorded the respect and privileges due prisoners of war (POWs); and (6) while all forms of force can be deployed in combat, certain weapons designed to cause unnecessary suffering are proscribed.

This code was tested to the breaking point during the world wars, but its general outline survived and was incorporated into the four Geneva Conventions of August 12, 1949. (3) Like customary jus in bello, the Geneva Conventions neither sought nor purported to interfere with the ability of states to prosecute an armed conflict successfully, and their application did not depend upon the justice of the cause at issue. As explained by the International Committee of the Red Cross (ICRC) in its commentaries on these treaties,

   the application of the Convention does not
   depend on the character of the conflict.
   Whether a war is 'just' or 'unjust', whether it
   is a war of aggression or of defense, the protection
   and care due to the wounded and sick
   are in no way affected.

The reasoning behind the practical nature of both customary law and the Geneva Conventions was obvious: a humanitarian "law" that impeded the ability of states to defend their vital interests would, in practice, amount to nothing but a series of pious aspirations. Traditional norms did, therefore, favor established states.

Efforts to change this began after World War II and were dramatically accelerated in the 1960s and 1970s, in part because of hostility to American involvement in Vietnam. They involved an odd alliance of human rights activists, supporters of "national liberation" movements and Third World governments. While all had different agendas, these groups shared one overarching objective: a desire to "reform" traditional jus in bello norms in ways which would benefit "progressive" non-state entities and handicap traditional state-sponsored military establishments.