War and Peace: Of Law, Lawlessness, and Sovereignty

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Abstract

Laws of war have been carefully defined by individual nations' own codes of law as well as by supranational bodies. Yet the international scene has seen an increasing movement away from traditionally declared war toward multinational peacekeeping missions geared at containing local conflicts when perceived as potential threats to their respective regions' political stability. While individual nations' laws governing warfare presuppose national sovereignty, the multinational nature of peacekeeping scenarios can blur the lines of command structures, soldiers' national loyalties, occupational jurisdiction, and raise profound questions as to which countries' moral sense/governmental system is to be the one upheld. Historically increasingly complex international relations have driven increasingly detailed internationally drafted guidelines for countries' interactions while at war, yet there are operational, legislative, and moral issues arising in multinational peacekeeping situations which these laws do not address at all. The author analyzes three unique peacekeeping operations in light of these legislative voids and suggests systematic points to consider to the end of protecting the peacekeepers, the national interests of the countries involved, operational matters, and clearly delineating both the objective and logical boundaries of a given multinational peacekeeping mission.

Introduction

War and peace -- at opposite ends of the relational continuum and yet inextricably linked: Historically, military presence has been utilised for the express purpose of keeping the peace (or at least the status quo of cease-fire) since the Versailles armistice of 1918. Do the laws of war apply to multinational peacekeeping operations? Can they? Should they? What special points of legislation are needed to accommodate the unique factors of peacekeeping operations? The purpose of this paper is to show the completeness of the codified laws of war in addressing many possible situations as well as to reveal areas which are still today completely unaddressed. It traces the development of thought on international law and rules of warfare from Classical and mediaeval times. It follows these thoughts' ultimate incorporation in modern-day laws and shows how their basic tenets still set the tone of today's international relations. Then it summarises Korea, Liberia, and the breakup of Yugoslavia - with analysis of the facets of international law, rules of warfare, and legal quirks encountered in each scenario. It concludes that we very much need legislation especially tailored to peacekeeping, and it explores the operational/technical and legal differences between war and peacekeeping and recommends specific points which such legislation should accommodate. To work, any laws governing war and peacekeeping must absolutely ensure a universal standard of conduct (among the peacekeepers; toward civilians, neutral realms, prisoners and wounded from either side of the conflict, toward bordering nations' rights, toward violators of any of the established international rules of civility), establish predictable lines of command, allow for operational flexibility as demanded by developments, enforce the peacekeepers' neutrality, ensure the recognition of the contingent-contributing nations' sovereignty, and protect the human rights of the peacekeepers themselves.

Historic Overview

Since recorded history, warfare has permeated the development of civilisations. While war was viewed as an instrument for self-protection and/or advancement of one's culture and boundaries, schools of thought actually devoted to war in any formal sense grew gradually. Although the Romans were known for their cruelty in enslaving captured soldiers (or enemy princes) for labor (if they did not execute them), they generally practiced civility toward the vanquished civilian populations and facilitated mechanisms of bringing these new areas into the citizenry of Rome. And indeed it is the Western tradition of thought which has been carried forward to this day, and lines of thought on international law can be traced back to Classical times. During the Migrations of the Peoples, military advances were typically accompanied by pillaging the civilian populations, properties, and countryside. Particularly Ghengis Khan was notorious for his ravages; in the more westerly parts of un-Romanised Northern Europe, the Vikings practiced the same indiscriminate killings and pillaging toward the civilian populations of their vanquished. Philosophically one can argue that the concepts of international law can be traced back to the Classical cradle of Western civilisation.

Since the days of Greece and Rome, warfare has been (aside from conquest tool) considered a subset of the state's right to self-preservation. Then the timeframe between the fall of Rome and Italy's Renaissance was bridged by the Roman Catholic Church fathers who wrote on the human condition and on the chivalric duties of the Christian soldier. This period also gave birth to the concept of "just war". Subsequently, with the Renaissance's gradual secularisation of the concepts of statehood and crossnational relations along with views on human rights and statehood, three fundamental schools of thought arose -- today they still form the philosophical basis of international law. Machiavelli believed that the state had an inherent right and need to protect itself from the surrounding chaos of other, disorderly, civilizations. He saw war as a function of self-preservation. According to Hugo Grotius, on the other hand, war is a function of international law -- to regulate international behavior and the standards by which the international society exists. A universal honor code unspokenly defines crossnational codes of conduct. In the thinking of Hobbes, Rousseau, and Kant, man is naturally self-seeking and subjects himself to government to avoid the cycle of mutual destruction. These three schools of thought disagree on the level to which an international society exists or whether its existence should be acknowledged as a conduct-defining code. However, they do share the natural law concept of certain human rights such as individual liberty and safety, the concern for the greater good, and a desire for the injection and maintenance of civility in relations among states and in instances of war - a trait still seen in all recent multinational peacekeeping missions and international diplomacy in general.

Today's Laws of War - Their Meaning and Realm of Jurisdiction

National Level: Laws of war, in the purest sense, address national defense and govern the nations' conduct while at war. Our Title 50 (War and national defense) endeavors to accommodate every possible nuance of encounter in which our armed forces might find themselves. Yet the law confines itself to justice within the military (at war as well as peace), proper conduct toward nations with which the US are at war, and to emergency legislation -- it is clearly tailored to the United States at war.

International level: The Hague and Geneva Conventions take great care to emphasise human rights and civility in the event of conflict. They aim to balance each nation's right to self-defense with the need to regulate behavior among nations. These Conventions, enforceable under UN auspices, mandate:

* Protection of immunity from attack for neutral territories

* Full protection of neutrality for war hospitals, humanitarian aid stations, and their personnel

* Protection of civilians, cultural and private property, and merchant vessels

* Humane treatment of war prisoners

* Respect for fundamental human rights

* Fair trials for war crimes

* Distinctions between belligerents and spies

Origins Of International Law And Laws Of War

Greece and Rome (900 BC - 476 AD): Empires were built on and maintained through use of military force. Both Classical Athens and Rome originated as city states with the romantic ideal of purity on the part their respective citizens. Within a century however, each had progressed to a sense that virtue had to be exported to surrounding "barbarians" and that its own population needed to be protected from the uncivilised influences of the neighboring peoples of lesser intellect, refinement, and social/cultural development.

Middle Ages (476 - 1400 AD): In the chaos which ensued all over Europe following the official fall of the Roman Empire in 476 AD, the virtues of literacy, scholarship, and higher thought were upheld by the Church fathers who wrote extensively on the condition of man. St. Augustine wrote on the duties of the Christian soldier -- rules which spelt out moral conduct and humane treatment of prisoners and vanquished. The character of the Holy Roman Empire was marked by the notion that war was a necessary means of protecting the Christian lands from he surrounding heathen nations and their corrupting influences. War was also viewed as the papal instrument of spreading the Gospel -- the distortion of moral and spiritual conviction and crossing into senseless cruelty and plundering found ample manifestation during the Crusades. A double standard governed the "rules of warfare" in that Christian nations at war endeavored to abide by basic chivalric codes while no concern for any human rights was shown toward populations of the non-Christian countries. In many respects this was a period of many extremes, one in which profound exploration of human nature, rights, and spirituality existed side by side with unchecked cruelty of war that was unrestrained by any rules of morality or regard for human rights. And yet …