The Double-Edged Sword: Religious Influences on International Humanitarian Law

Article excerpt

[International humanitarian lawyers tend to relegate the role of religion to one of the historical sources of international law. This article demonstrates the way in which religion has an ongoing and complex relationship with international humanitarian law. By examining the role that religion has played both historically and in modern conflicts the author argues that even a secular lawyer who is committed to humanitarian norms has good reason to develop a better understanding of the power of religion if humanitarian law is to prosper in many cultural contexts. By examining religious teachings on the nature of humanity and the rules of war, and considering the religious influence on legal compliance and leadership, the article demonstrates that religious influence is double-edged. While religion can both undermine and support humanitarian law, the author concludes that closer engagement with religious teachings and leaders' can be beneficial even for secular proponents of humanitarian law.]

CONTENTS

I   Introduction
II  The Nature of Humanity
      A Common Humanity
      B Divided Humanity
III Respect for International Humanitarian Law Norms
      A Support for International Norms
      B Undermining of International Norms
IV  Compliance
      A A Motive for Compliance
      B Justification for Noncompliance
V   Symbolism and Leadership
VI  Conclusion

I INTRODUCTION

In an analysis of the way in which major textbooks on international law have changed their emphasis on religion (1) over time, Professor Mark Janis concludes that by 1905, when Oppenheim published his classic International Law, (2) religion no longer played the important role that it had in earlier texts: '[r]ather, religion was part of the history of international law, something that once had mattered'. (3) A similar fate has befallen the treatment of religion in the major modern texts on international humanitarian law. (4) The clear link between religious teachings, such as the just war doctrine, and the development of the modern law on armed conflict means that most textbooks refer to religion as one of the historical sources of the modern law. (5) But the standard approach of most international humanitarian law books is to deal with religion in an early chapter on history or sources and to thereafter neglect the subject of religion altogether.

Yet even if religion is often distinguished from law in Western legal and political philosophy, and largely ignored in legal writing, (6) no such division can be neatly maintained in the real world. This is particularly the case in many parts of the world that are divided by armed conflict, where law and religion are often deeply intertwined and religion may play a more meaningful and significant role in influencing behaviour than does law.

The place of religion in the international legal system, or indeed any legal system that purports to be secular, is likely to be controversial and complex. The Enlightenment fear of the irrational passion and divisiveness of religion continues to discourage any overt discussion of the relationship between law and religion. And when religion is discussed in a context such as international humanitarian law, it is described either as an unmitigated good or as wholly evil. (7) Some writers focus only on the positive aspects of a particular religious tradition and dismiss any negative role played by that religion as a misinterpretation of its true meaning. (8) Other writers choose only to focus on the more dangerous and divisive aspects of religion. (9)

What position then might a secular international lawyer, committed to a law that restrains the worst abuses committed in times of conflict, take with respect to religion? In a leading article on developments in international humanitarian law, Theodor Meron came to the conclusion that a range of factors was moving international humanitarian law away from its roots in strict reciprocity and towards a system based more on humane values and human rights law. …