8
Methods and Means

Combatants, Non-Combatants, and Civilians

Restraint in the conduct of armed conflict being the purpose of laws and customs of war, wherever and whenever they are found, it follows as surely as night follows day that their basic principle must be the banning of methods and means which, if used, would negate that aim. War being the violent and inherently escalating thing that it is, the total absence of restraint can only lead to degrees of mutual slaughter and destruction which civilized societies have, on the whole, wished to avoid. 1 The adage, 'all's fair in love and war', gives as egoistic and unbalanced an idea of relations between the sexes as of relations between States and other politically purposive warring parties. Reckoning precisely what is fair and what is not fair has, indeed, often been a problem; the more so for having as its Siamese twin the problem of reckoning what to do if fair fighting promises defeat. Such however are among the problems which would-be fair fighters and their consciences have always had to live with. Laws and customs of war developed none the less, and in the earliest years of their codification bred this ungainly first statement of their fundamental principle: 'The right of belligerents to adopt means of injuring the enemy is not unlimited.'2

In that and in all its subsequent appearances, statement of the principle is immediately followed by short lists of deeds and devices singled out for particular prohibition, perhaps giving to the uninitiated the impression that it is to those methods and means alone, or (at any event) to them above all others, that this fundamental principle of limitation applies. The historic fact is very much otherwise. The statement of that fundamental principle concerning what violence could be done to 'the enemy' came long, long

____________________
1
Such use of the word 'civilized' begs questions and raises hackles but I see no way to avoid it, nor do I see how to avoid the risk of offending readers content to describe as civilized, societies which believe it proper to fight wars of extermination.
2
Article 22 of the 1907 Hague Regulations, which in Article 35 of AP1, 1977, becomes, 'In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.' Its first appearance as an independent article appears to have been in the 1874 Brussels Project of an International Declaration concerning the Laws and Customs of War: 'Art. 12. The laws of war do not recognize in belligerents an unlimited power in the adoption of means of injuring the enemy.' This seminal document is printed in Schindler and Toman, 25-34.

-253-

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