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

By Schmitt, Michael N. | Harvard International Review, Spring 2009 | Go to article overview

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


Schmitt, Michael N., Harvard International Review


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 modification, continued throughout the remainder of the century, and the first war crimes tribunals since the war, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, were created through UN Security Council mandate.

Despite this extraordinary record of accomplishment, in the 21st century a nagging sense that Lauterpacht was right after all pervades public opinion. Who has not heard, for instance, of Guantanamo or Abu Ghraib? Who has not seen the tragic images of civilian casualties and destroyed civilian property in Afghanistan, Iraq, Lebanon, Gaza, Congo, Darfur, or East Timor? Many believe that if the law of war has not vanished altogether, it is at least not measuring up to the task at hand. Has it proven nothing more than a hypocritical triumph of form over substance?

There is equally an impression that the law of war is ill-suited to meet the demands of new forms of warfare, particularly transnational terrorism, in which it is ignored as a matter of course by one side to the conflict. …

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