Having at last completed this study of IHL's place and functions in international affairs, I take the opportunity to return, in more adventurous spirit, to the question with which Part III has been largely concerned: Why is so much of today's IHL so badly observed? Part III's answer, as will have emerged plainly enough from its pages, is mainly that much of it is unsuited to the circumstances in which it has to operate, and unable in any case to operate whenever a warring party has no interest in helping it to do so, which unhappily often happens. That answer, so far as it goes, may be thought sufficient. But I wonder whether it goes far enough. It seems to me that beyond the first question lies a second one. If some of the law is virtually inoperable, and if some parties have little interest in observing it, why have the nations of the world joined to construct and to applaud an extensive, portentous, and peremptorily worded apparatus of humanitarian law which some parts of their decision-making collective minds must tell them they cannot or will not observe? If all this law is in some measure no more than aspirational, 'normative' standard-setting--if it is what is called soft law-- can it be a good idea that so much of it should claim to be hard? Does it weigh upon the States parties to it any more heavily than human rights law, the instruments of which many States evidently sign or accede to with no serious intention or expectation of having to do anything about them? In what sense can the States subscribing to it be said to be serious about it?

I find it difficult to escape the conclusion that in some sense they are not. The evidence available to support this depressing conclusion tends however to be of a different order from what has served as evidence in support of argument so far. Some of it is circumstantial evidence and some is not evidence in the forensic or scholarly sense at all but is simply reasonable speculation, informed guesswork. However, I don't see why that should block the investigation of significant matters which would otherwise escape comment. I believe my hypotheses are reasonable--they certainly seem to explain things that cannot be explained otherwise--but I cannot prove them, I cannot produce the quantity of annotated evidence which scholars rightly demand, and I therefore give this part of the book the modest description of an essay and present it as an Epilogue. Readers may nevertheless consider it worth while to remember that I have been living with this subject and practitioners of it for twenty years, and to give my swan-song a fair hearing.


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War and Law since 1945


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