The Vanishing Law of War Reflections on Law and War in the 21st Century

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In 1952, Sir Hersch Lauterpacht, then the Whewell Professor of International Law at the University of Cambridge, opined in the British Yearbook of International Law that "if international law is the vanishing point of law, the law of war is at the vanishing point of international law." The renowned scholar, who later served on the International Court of Justice, was merely echoing Cicero's famous dictum that inter arma leges silent--in war the law is silent. Today, echoes of Luterpacht and Cicero pervade discourse on the law of war. Has post-World War II history merely confirmed their dismissive observations?

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This essay argues that the prevailing context of warfare has always informed attitudes towards the law of war; it is less the law in the abstract that matters, than the environment in which it is applied. Indeed, a half decade ago, how could Lauterpacht have come to any other conclusion? The carnage of the Second World War was still fresh in the minds of those contemplating the effectiveness of the law of war. Civilian deaths, estimated at nearly 50 million, had outstripped military casualties by a factor of nearly two to one. Particular groups, such as Jews, gypsies, and homosexuals, had been systematically slaughtered in death camps. Prisoners of war had suffered unthinkable conditions despite a 1929 Geneva Convention governing their treatment. Some four million died in captivity. Occupations had resulted in starvation, economic disaster, and widespread destruction of cultural property. The weapons of war, including incendiary and atomic bombs, had proven horrific.

International war crimes prosecutions followed at Nuremburg and Tokyo. Thousands more were tried in occupation or domestic courts. The conflict prompted a frenzied effort to codify the laws of war and human rights law. In 1948, the Universal Declaration of Human Rights and the Genocide Convention were adopted, the latter an extraordinary accomplishment given that the term "genocide" had only been coined in the previous decade. The following year, the International Committee of the Red Cross' effort to enhance norms applicable in armed conflict bore fruit with finalization of four conventions extending the protection of the sick and wounded on land and at sea, prisoners of war, and civilians (especially during occupation). In 1954, the Hague Cultural Property Convention was adopted.

Although, little "hard" law existed to govern the actual conduct of hostilities, this lacuna was remedied in 1977 by Additional Protocol I to the Geneva Conventions. Its counterpart, Additional Protocol II, was the first treaty expressly drafted to govern internal armed conflicts. The 1980 Convention on Conventional Weapons outlawed or regulated the use of weapons that had non-detectable fragments, anti-personnel land mines, booby-traps, incendiaries, and, eventually, blinding lasers. Subsequent treaties dealt with biological and chemical weapons. Codification of norms on an array of other topics, such as environmental …