How the Development of International Society
Differed from the Legislators' Expectations
The purpose of Part III of this book is to examine and to evaluate the workings since about 1950 of the arrangements for the legal restraint of warfare which, as described in Part II, by then were seemingly completed. Those arrangements have not worked well. The best that can be said for them is that they have intermittently and patchily worked to some extent, and that the record of their observance in our own times may, after all, not be worse than it has often been in the past. What has gone wrong? This Entr'acte offers some explanations.1 The arrangements hopefully made between 1945 and 1950 have had to struggle for survival in circumstances of extraordinary difficulty, and (as has been indicated) they entered the world bearing a variety of birth defects. But that is not the sum of their misfortunes and difficulties. Like much else that had its launching just after the Second World War, the reconstructed laws of war were born under a fateful star. Their genes were adapted to another world than that in which they had to make their way.
The genetic image is the more appropriate in that, beneath all the other troubles that came their way, those laws were in major respects regressive. Promoted as making possible the better restraint of warfare, they were founded in assumptions about war as it had been rather than war as it was about to be. There were two sets of assumptions: the one legal, the other political.
Little need now be added to what has already been said about the former. The legal assumptions, unsurprisingly, came straight from the international law of war as it had developed and hardened over the previous three centuries. It took for granted that what that body of law was most likely to be able to control was war between States; States, the very bodies for whom modern international law (as hitherto viewed) exclusively existed, and by whom exclusively it was made. To this major assumption the post-war reconstruction added two minor amendments. The exclusive tendencies of the old term 'war' were replaced by the open-ended implications of a new term 'armed conflicts', and the door was opened to the application of the____________________