International Humanitarian Law and the Gods of War: The Story of Athena versus Ares
Durham, Helen, Melbourne Journal of International Law
[This piece reflects upon the fundamental nature of international humanitarian law and explores issues surrounding the embrace of this legal regime by the humanitarian sector. By delving into images of the ancient Greek gods of war--the reasonable Athena who is linked to international humanitarian law and the bloodthirsty Ares who represents lawless war--it is argued that an in-depth understanding of the pragmatic military nature of international humanitarian law will add value to advocacy on the use of this highly specialised regime. Without acknowledging the 'warring' nature of international humanitarian law, as well as the contradiction of using armed force 'for good', implicit assumptions within the humanitarian dialogue on these topics cannot be challenged. This piece identifies the change in attitude to views on the merit of using the military for humanitarian action as well as the increasing use by many non-governmental organisations of the international humanitarian law framework, and examines the reasons why this has occurred. It then moves to an analysis of ancient Greek attitudes to different warring methods and the resonance that these myths still hold today. The piece notes the importance of maintaining the distinction between the laws which regulate the use of force (jus ad bellum) and those which regulate the conduct of hostilities (jus in bello) and concludes by urging all actors involved in international humanitarian law to continually clarify their perspective on the laws of war.]
In late 2006, I was invited to San Francisco to be part of a workshop on aerial bombardment and civilians. The workshop's aim was to look broadly at historical instances of warfare from the air and, in particular, the events which occurred in Hiroshima and Nagasaki during World War II. Most who attended were military historians and I knew that their 'mind frame' would not be focused on the traditional international humanitarian law doctrine that I was used to. Thus I was excited to be explaining these principles in a different environment.
What I was not expecting was the extremely 'robust' and highly critical written response to my paper, in particular from a well-respected moral ethicist, on what I believed was a mere articulation of the legal principles in this area. Commenting on the paper's explanation of the complex legal description of 'military objectives' (found in art 52(2) of Additional Protocol I (1)), the reviewer included statements like 'if they are right, then this is a major moral defect in the law' and 'people who think this way cannot be taken seriously when they profess a moral concern for the lives of the innocent'. Whilst not all participants were as direct, a general level of cynicism at the potential impact of international humanitarian law on warring factions and unease with its terms and concepts was palpable for the duration of the event.
The experience made me reflect deeply on what I had passionately pursued for most of my professional life. Had I moved so far over to the 'dark side' that terms of my craft such as 'military necessity' tumbled from my tongue and pen without a second thought? Did I think within a lawyer's restrictive paradigm tempered only by what was 'palatable' to the military? Was the term 'humanitarian' at all compatible with laws about war? Was I in a no-man's-land between condoning killing (according to the moral ethicist) and being a 'tree hugger' (according to the military)?
I came to international humanitarian law as a humanitarian interested in ensuring better protection for civilians during the most violent times societies can endure. In my role with various elements of the Red Cross/Crescent Movement and as an academic, I have spent the last ten years justifying international humanitarian law and arguing that it is worthwhile, does make a difference, and has significant value. I genuinely believe in international humanitarian law and am able to strongly advocate its virtues to governments, militaries, students and the humanitarian sector at large. …