Implementation of International Humanitarian Law in Future Wars
Doswald-Beck, Louise, Naval War College Review
ANY ATTEMPT TO LOOK INTO THE FUTURE is fraught with difficulty and the likelihood that much of it will be wrong. If someone in 1898 had tried to foresee issues relating to the implementation of the laws and customs of war in the twentieth century, it is highly unlikely that he could have foreseen many of the major developments that have characterized warfare in this century and, therefore, the difficulties of implementation that these created. At best, he could have based his attempt on trends, in particular the development of mechanization at that time. Today, putting aside the possibility of dramatic events like a catastrophic nuclear war, or unforeseeable fundamental changes in the nature of warfare or the organization of international society, the most one can hope to do is extrapolate from present trends and see how these could affect the implementation of the law in the future. In so doing one may assume that human nature will not change, although the organization of society and of international relations could well do so.
International humanitarian law is implemented on three levels, namely, by the individual undertaking an act during an armed conflict, by the society for which he is acting, and finally by the efforts of the international community. Generally speaking, laws that reflect the values of a society, or at least the interests of those in a position to enforce the law, have a good chance of being implemented.
This article analyzes the main factors that help or hinder the implementation of international humanitarian law-that is, the likelihood that in a particular combat situation its regulations will be observed or its violation punished.1 It first examines those factors that helped such law develop in customary practices and analyzes whether they continue to be present and what the prospects might be for the future based on present trends. The changes in international society that appear to be taking place and the effect these may have on implementation are then examined. Finally, the article considers certain mechanisms for implementation. In that respect, this author does not assume that we should speak of implementation of the law in the next century as it stands now but assumes that changes and developments will take place in order to reflect developments in technology, methods of warfare, and society. The article therefore considers implementation of the major principles of international humanitarian law that reflect its basic purpose as we understand it today-the limitation of means and methods of warfare, and the protection of persons in the power of hostile authorities, in order to limit the destructiveness and suffering of war.
Factors Historically Aiding Implementation
In past centuries, various circumstances have tended to favor the implementation* of humanitarian law restrictions on the conduct of warfare. First, since rules reflected existing general practice, their implementation was not particularly difficult, as efforts were limited to keeping in line the occasional individual who behaved differently from others in his society. It is noteworthy that prior to the attempts to codify the law in the late nineteenth century, the laws and customs of war were an articulation of the methods of warfare common to professional armies of that time. Nonprofessional groups were not expected to conform to this law, and they were therefore also not entitled to the privileges that were enjoyed by professional armies, especially prisoner-of-war status. The protection of the civilian population was assured largely by methods of combat rather than any strict rule. The lack of such regulation is evidenced by the fact that civilians did suffer greatly during sieges; they could even be forced back into the besieged city if they tried to escape.2 On the other hand, by the eighteenth century the practice in the Middle Ages whereby a city's population could be punished for resisting capture was considered dishonorable and uncivilized. …