Revolutions in International Law: The Legacies of 1917

Posted on June 14, 2024 by Luke Ford

Amanda Alexander writes in this 2022 book:

Lenin at Nuremberg: Anti-Imperialism and the Juridification of Crimes against Humanity

The Nuremberg trials stand as a pivotal moment in any history of international law, international humanitarian law, international criminal law and international human rights.1 As Teitel writes, ‘the trials at Nuremberg represented a unique historical crossroads for the three legal orders that form the humanity law framework’.2 By introducing crimes
against humanity into international law, the trials are said to have contributed to the creation of a new normative order, aimed at protecting vulnerable humanity.3 For prosecuting individuals for these and other war crimes, they are presented as an example of the rationality and calm procedure of international law overcoming violence, power and the baser instincts of revenge.

These accounts of international criminal or international humanitarian law relate what could be described as a liberal or Enlightenment narrative of international law. International law, in these narratives, embodies the enlightened values of rationality, legality and humanity – and the Nuremberg trials represent an important moment in the (slow) movement towards the advancement and realisation of these values….

This approach to the Nuremberg trials not only places the International Military Tribunal (IMT) in an Enlightenment narrative about international law, it also looks to the trials to tell this narrative. The pedagogical role of the Nuremberg trials, and other war crimes trials, has been noted by a number of observers.6 Such trials are expected to relate an accurate, impartial history while demonstrating enlightened values through the ‘civilised institutional drama of a trial at law’.7 Mark Osiel termed such trials ‘liberal show trials’.8

…The Nuremberg trials therefore have an important place in any account of the advancement of humanitarian, liberal values in international law. Yet, when held up against these expectations, the Nuremberg trials often seem to fall short – both as a legal institution and as an historical account. The Nuremberg trials bear the stain of victors’ justice and they stir doubts about retrospective law.9 The trials were uninspiring;10 they relied too much on documentary evidence and listened too little to the voices of victims.11 Most importantly, crimes against humanity, observers note, were oddly limited.12 Under the Charter, they had to be linked to crimes against peace or war crimes.13 As a result, the IMT told a distorted history.14

In this chapter, I suggest that the IMT falls short when assessed according to these measures because it did not just tell the expected Enlightenment narrative and it did not intend to prosecute crimes against humanity in the way we understand them now. Rather, I will argue that the way the crimes were codified and then described at the
trials shows that another narrative was also at work. This was an antiimperial narrative that drew on Marxist theory and was given a practical impetus by the Bolshevik Revolution. It spread, in a diluted form, to ‘advanced opinion’ throughout the West.15 The Marxist approach described war, even European wars, as the result and expression of
imperialism. Imperialism was an economic institution, and its depredations were depicted primarily in economic terms. Aggressive, imperialist war was, in this narrative, the worst crime – the crime that led to all the other horrors of war. An international legal regime that condoned imperialist war was, therefore, so ethically misguided that it should be changed.

…There are lingering doubts about the legality of the new crimes that the IMT introduced – crimes against peace and crimes against humanity.25 Both lacked a clear pedigree in
international law…

…The exclusion of Allied crimes meant a partial historical account.31 The ‘peculiarity’32 of the decision to link crimes against humanity to crimes against peace, and the odd focus on aggressive war,33 meant that the prosecution had to distort the history of the persecution of the German Jews before the war, making it appear as part of the preparations for aggressive war.34 Indeed, as scholars have pointed out, the IMT did not relate the history of crimes that we now associate with the Second World War.35 It was not, in the main, a history of the Jewish Holocaust nor a record of the victims of the war. Victims’ voices were seldom heard in a trial that prioritised the probative value of
documentary evidence.36 These choices undermined the ability of the IMT to write a history that emphasised the value of humanity. They also made for a ‘boring’ trial37 that failed to produce the ‘compelling’ liberal narrative that Osiel expects war crimes trials to strive for.

…”crimes against humanity, has, from the very beginning, caught the imagination of international lawyers as laying down, prima facie, a set of novel principles of law. The
provisions relating to crimes against humanity have been acclaimed as ‘a revolution in international criminal law’. Others have described it as an innovation inconsistent with international law…”

…Crimes against peace were equally problematic. The UK90 and French91 delegations at the London Conference stated clearly that they did not consider aggression or crimes against peace to be part of international law.

…the initiation of a war was not deemed an international crime at the time…

…Sir David Maxwell Fyfe: “I have been approached by various Jewish organizations and should like to satisfy them if possible. I have in mind only such general treatment of the Jews as showed itself as a part of the general plan of aggression…”

…Robert Jackson: “The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was a part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities.”

…that aggressive war was criminal, that there could be unjust, unlawful wars, did entail a significant change to international law. It was, however, a justified change; it meant leaving behind an imperial era where colonisation was acceptable and acknowledging the injustice of colonial wars. This would change the international order from an unethical order to a better one. The similarity of these sentiments in US thought and Soviet literature shows that the idea of a crime against peace was not just a bizarre obsession urged by Robert Jackson. Rather it was a widespread sensibility, found in Marxist and Western anti-imperial literature, that informed the way war could be described, understood and condemned.

…This was the story, the story of aggressive, imperialist war, that was presented at the Nuremberg trials. Once the trial began, the Soviet, English and US prosecution stifled any of their doubts about crimes against peace. Together, they agreed on the legal provenance of aggression.

…Aggressive war was, the Soviets, British and Americans insisted, the central and principal crime from which the other crimes stemmed.

…it was unwavering in its efforts to fit the events of the Nazi period into an overarching story of aggressive war. Nor was this just any aggressive war that the court described – it was an aggressive colonial war, and the crimes it produced were shown to be the consequences of imperialism…

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Battle: A History Of Combat And Culture by John A. Lynn

Posted on June 14, 2024 by Luke Ford

Here are some highlights from this 2009 book:

Clausewitz begins with violence, hatred, and enmity, which he believes “mainly concerns the people,” for here he labels what is clearly the most novel and pressing matter of the day. 89 The French Revolution changed war from an affair of kings to an affair of peoples and transformed men in the ranks from hirelings to citizen soldiers. Clausewitz recognized this as the most critical watershed in the warfare of his day. The German reformers, Clausewitz among them, pressed the Prussian monarchy to enlist its people in the struggle against Napoleon. They identified popular commitment as the missing, and consequently the most urgently sought, element in the Prussian capacity for war. Therefore, Fichte’s attempt to rally patriotic feelings worked hand in hand with Scharnhorst’s concrete reforms. Art and politics mutually reinforced each other. Not long after Clausewitz returned to Berlin in 1807, he pleaded for the program of Romanticism: “A genuine need of our time [is] to return from the tendency to rationalize to the neglected riches of the emotions and of the imagination.” 90
In On War, Clausewitz’s concern for human psychology comes out repeatedly in his overriding emphasis on the human will. War is ultimately a “contest of wills” and the bloody cost of battle is simply a means to break the enemy’s will: “rather a killing of the enemy’s spirit than of his men.” 91 While will can mean political will, a rational choice, it also involves the passions of enemy peoples. After defining “the power of resistance,” as resulting from two factors, means and will, he made it clear that “subtleties of logic do not motivate the human will.” 92
Clausewitz linked chance and genius in a striking manner. The Military Enlightenment recognized the role chance could play, but sought to reduce it to a minimum, particularly by eschewing battle. Clausewitz found chance unavoidable and advocated battle, a theater where chance could dominate the stage.

…The critical Clausewitzian concept of “friction” constitutes a special role for chance. As early as 1812, in a piece written for his charge, the crown prince, Clausewitz turned to a mechanical metaphor, so appropriate in the early stages of the Industrial Revolution: “The conduct of war resembles the working of an intricate machine with tremendous friction, so that combinations which are easily planned on paper can be executed only with great effort.” 94 In On War, he defined friction as “the force that makes the apparently easy so difficult.” 95 This is essential, because, “Everything in war is very simple, but the simplest thing is difficult.” (This is surprisingly similar to Napoleon’s statement that “The art of war is a simple art and everything depends upon execution.” 96 ) All things that complicate action in war, that go wrong or come up unexpectedly, constitute friction. “[T]his tremendous friction, which cannot, as in mechanics, be reduced to a few points, is everywhere in contact with chance, and brings about effects that cannot be measured, just because they are largely due to chance.” In another striking metaphor, Clausewitz compares “action in war” to “movement in a resistant element”: “Just as the simplest and most natural of movements, walking, cannot easily be performed in water, so in war it is difficult for normal efforts to achieve even moderate results.” If general friction arises from the multitude of practical problems involved in military operations and from chance, it also results from lack of knowledge of the enemy, of the battlefield, etc., and generally from war’s unavoidable uncertainty and confusion, the fog of war. “War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty.”

…[Peter] Paret would have us accept that Clausewitz did not impose himself and his own intellectual construct on reality but simply penetrated and portrayed the truth of it all. But this contention seems at odds with the character of his work; in fact, it runs counter to the very nature of intellectual endeavor. If Clausewitz must be seen as a product of his time and circumstance, his current popularity is worth pondering.

…In a violent response to the 1923 earthquake, Japanese police and mobs tortured and slew 6,000 Koreans resident in Japan — a display of vicious, mindless racism.

…the Japanese believed Americans to be soft, self – indulgent, and incapable of serious sacrifice; therefore, Americans would tire and withdraw from a contest with the far tougher and committed Japanese. 87 In what ranks as a monumental misperception, just before the battle of Midway, Mitsuo Fuchida, the air commander of the raid on Pearl Harbor and again to command at Midway, wrote a report dismissing the Americans as lacking the will to fight. 88 Without this prejudiced and fatally incorrect conviction, Japanese war plans did not make sense, since Tokyo always realized that the advantages of numbers in manpower and materiel always rested with the United States.
This certainty of spiritual superiority also led to doctrinal miscalculations.

…ask if racism played a role in defining American strategy and doctrine. Should we find evidence there, we might conclude that the conflict was, indeed, a race war. But the evidence does not exist. When war broke out, the United States applied a strategic blueprint that it had been drafting for over three decades. These plans were not dictated by racial bigotry but by geographical and technological imperatives. The same can be said for crucial elements of doctrine.

…From the start, the United States planned to take on Japan in a naval campaign rather than committing to a great and costly land war in Asia.

…the Marine Corps had guessed right and prepared for the kind of fighting that awaited it on Pacific islands. The preparation of the peacetime Corps is one of the great success stories of prewar planning and training, but it had little to do with defining the enemy as specifically Japanese. No derogatory assumptions about the Japanese influenced these plans. It is true that Americans made some mistakes that can be ascribed to racial stereotyping, such as dismissing the quality of Japanese aircraft before the rude awakening, but these were peripheral to the prosecution of the war.

…most Americans in combat fought for and with their comrades rather than against their enemies. In fact, there is little evidence to demonstrate that combat effectiveness under fire improves with strong hatred.

…This chapter closely follows the work of Kenneth M. Pollack. In his Arabs at War (2002), Pollack identifies the general ineffectiveness of Arab armies, seeks explanations in a number of possible failings, and concludes that the primary weaknesses have historically been in tactical leadership, information management, technical skills and weapons handling, and maintenance. He claims that these failings have been typical of “every single Arab army and air force between 1948 and 1991.” 3 It will be enough for this chapter if these generalizations fit the case study of Egypt — and they do. Above all, Egyptian shortcomings in Pollack’s categories of tactical leadership and information management proved most damaging. Pollack’s argument is all the more convincing because the high command of the Egyptian army itself reached similar conclusions.

…campaign plans ought to build upon the particular character of the army for which they are intended.

…Attrition warfare depends on superiority in manpower and materiel to batter an enemy into submission, and is usually costly. In contrast, maneuver warfare maximizes effect by movement, with the goal of achieving greater results at far less sacrifice of blood. Maneuver warfare probes, discovers, and exploits; it seeks advantage and strikes, ideally by attacking an enemy’s vulnerability with one’s own hardest and sharpest edge.

…Maneuver requires tactical flexibility and improvisation guided by accurate and timely intelligence, and Arab military culture, Pollack insists, repeatedly found these abilities to be elusive.

… The special character of Egyptian military culture, and the value of harmonizing technology and tactics with it, argues for the absolute necessity to appreciate the uniqueness of the different militaries. Concepts of a universal soldier and ideas of weaponry as dictating a single best way to fight seem naïve.

…”Arab armies and air forces did not suffer in combat because they lacked ammunition, food, water, fuel, lubricants, medical supplies, repair tools, spare parts, or other combat necessities.”

…Arab artillery pieces were often the best available, but they were poorly coordinated and commanded. Even successes, as in 1973, reveal core weaknesses in artillery usage, as we shall see. Arab tank crews usually were poor marksmen and maneuvered ineptly. Fighter pilots could not defeat technologically inferior enemy aircraft.

…Many critics of U.S. foreign policy charge that specific American actions, such as a virtual blank check for Israel, have alienated much of the Moslem world, and there is a great deal of truth to this accusation. However, these critics go on to argue that the U.S. could end the threat of extreme Islamic terrorism simply by reversing such policies. However, no matter what the origins of Moslem resentment, once it was transformed from political/rational to cultural/religious, the adoption of more enlightened policies by the United States, although valuable in the long run, would probably not diminish the terrorist threat soon.

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The “Good War”: Preparations for a War against Civilians

Posted on June 14, 2024 by Luke Ford

Senior Lecturer Amanda Alexander writes in 2016:

This article argues that the narratives told about the Great War helped to establish the bombardment of civilians during World War II as an ethical, military and legal possibility. It shows that the literary representation of the Great War was antagonistic towards civilians, suggesting that a fairer war would affect the entire nation. Military strategists accepted this premise and planned for a future war that would be directed against civilian populations. International lawyers also adopted this narrative and, constrained by it and their disciplinary conventions, found it hard to posit any strong legal or ethical objections to aerial bombardment.

World War II is often described, by historians and lawyers, as a “Good War.” The inverted commas are used deliberately and ironically. They signal an unwillingness to naively accept the appellation; a sophisticated understanding of the moral complexity of the war. Yes, the cause was just. Yet, it is felt, there were deeply problematic aspects to the Allied campaign. Chief amongst these was the indiscriminate bombardment of civilian populations during the war.2 Commentators today point to Dresden, Hiroshima, and Nagasaki as testimony to the brutality and inhumanity of Allied tactics – they speak against the “goodness” of the war.3 Indeed, for historians, one of the troubling questions about the war is why Britain and the United States were so ready to use these tactics.

To a modern international lawyer, these acts were also crimes against the laws of war. Lawyers have asked how and why the law broke down at this time and these questions have affected their faith in the strength of their discipline.5 The failure of the post-war tribunals to prosecute and punish these crimes further compromises the claims of international law. For many lawyers, the lack of attention given to aerial bombardment seems to undermine the legitimacy of those trials,6 exposing them as victors’ justice and a mockery of international justice at its inception.7

I will argue that the reason that aerial bombardment was accepted so readily was that it was not universally seen, in the interwar period, as a defilement of the idea of a good war, nor as illegal. Although there was some argument that bombardment of civilians was immoral or illegal, there was also a strong cultural narrative that suggested that a war against civilians could be an appropriate way of waging war. The story of the Great War that was established toward the end of the 1920s was strongly antagonistic towards civilians. It blamed non-combatants for sending young men out to be sacrificed while they remained (unfairly) safe from the horrors of war. The same account can be seen in the work of military strategists and it was deployed by the leaders of the nascent air forces. International lawyers, imbued with this cultural narrative and discomfited by the failures of their discipline, were unable to posit any strong legal, or even moral, prohibition on the bombardment of non-combatants. In this way, the hostility towards civilians left aerial bombardment as an unsettled legal problem and a military possibility that was eventually embraced.

…Until the Additional Protocols to the Geneva Conventions were drafted in the 1970s, there were no rules to prevent the starvation of civilians, no consensus about illegality of area bombardment, no agreement about the usefulness or meaning of a principle of proportionality.9 Moreover, as I have argued, it was only in the 1990s that these principles were actually accepted as customary international law, binding on everyone.

The Great War introduced, for the first time, a large contingent of educated, scholarly men, steeped in the motifs and themes of a classical education, to battle.14 Siegfried Sassoon, Robert Graves, Wilfred Owen, Isaac Rosenberg and Erich Maria Remarque are the best known of these war writers; their work has been established as the canon of war literature.15 Their poetry and memoirs replaced traditional tales about honorable and patriotic warfare with a new story of disillusionment and betrayal, horror and pointlessness. They portrayed a war where young men were sacrificed by the “Old Men,” their patriotic fathers and mothers, wives and sweethearts.

…It was at this time, the end of the 1920s, that “the disillusioned trench soldier emerged as the ‘authentic’ voice of the Great War.” From this moment on, their narrative pushed out the other accounts and became the only possible story about the war. Indeed, Watson shows that other experiences of the war had to be recast in these terms to be accepted as legitimate accounts of the Great War.

…In this now ascendant narrative, one of the most common themes was the juxtaposition of the trench poet’s pity and love for fellow soldiers with antagonism towards the
non-combatant population.

…The rest of the world, however, seemed to care little for the soldier’s suffering. The trench poets felt that non-combatants were indifferent to the plight of soldiers.

…Yet, the trench poets did not reserve their dislike only for these militant examples of womanhood. Their work displays a more general hostility towards women.35 Gilbert describes a disgust for the feminine that acted as a counterpoint to the love between soldiers.36 Others have pointed out that the war, and the vulnerability that men felt at the front, threatened traditional gender roles and created animosity towards women.

…The trench poets felt that these non-combatants were incapable of understanding the reality of the war. When they returned home they could not communicate with or feel
comfortable with their families.

…As a result, soldiers expressed a desire to bring the war home, to make the “smugfaced crowds”41 understand and take responsibility for their support of the war….The military strategists of the interwar period also had a narrative that they told about the last war…

…The strategists shared, with the poets, a willingness to replace this foolish “cannon-fodder” war with a war against the civilian population – for both strategic and moral reasons. It should be remembered, the strategists pointed out, that the purpose of war was to enforce a policy or, as Liddell Hart put it, to subdue the enemy’s will to resist, with the least possible human and economic loss to itself.53 The destruction of the opposing armed forces was “only one means, and not necessarily the best one, to the attainment of that goal.”54 If that could be achieved in a more effective way – such as by bringing the war to the people – then that was the method that should be used. And now the weapon was available to do this: “Aircraft enables us to jump over the army which shields the enemy government, industry and people, and so strike direct and immediately at the seat of the opposing will and policy.”

…consistent narrative was maintained by the military thinkers about the complicity of the non-combatant population in war, and the appropriateness and possibilities of bringing the war home to them.

…All this work and progress in [1920s] international law may well justify the interpretation of the period, overall, as one of utopian energy and enthusiasm. It is interesting, however, that very little of this effort was directed towards the position of civilians in warfare. …those idealist international lawyers, with an interest in warfare, tended to focus their energy on the maintenance of peace rather than the regulation of warfare. They considered that their job was to help prevent war… Lawyers accepted, willingly or unwillingly, a vision of totalitarian war, conflating the people, the nation and the state.

…[J.M. Spaight, the leading authority on air warfare] went even further, making an argument that the entire economic life of a nation should be considered a target… Even after World War II, Spaight still found himself able to state that at least nothing had happened in that war that was as bad as the “loss of the flower of the generation” in World War I.

…International lawyers, between the wars, agreed on a certain story about the laws of war. They knew that there was little protection for non-combatants and little could be expected; nations would not sacrifice military utility for humanitarian reasons. They considered that what law did exist was unsettled, complicit in the depredations of war or likely to be set aside as soon as war began… They knew that international law did little to actually protect civilians… Law would only be used where it facilitated military interests. …lawyers felt that any law that did exist was likely to be disregarded in a war, since there was nothing except the fear of reprisals that might stop military staff bent on winning a war.136 Lawyers expressed a general belief in the weakness of their discipline.

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A Short History of International Humanitarian Law

Posted on June 14, 2024 by Luke Ford

What makes for an expert in human rights? Someone who other human rights experts accept as an expert. To get in the game, you first have to speak the code and nod to Human Rights Watch and Amnesty International and other exciting utopian schemers making grand pronouncements about proportionality.

International humanitarian law is a 1990s construct created by utopians who needed an exciting cause that need not make any difference in the real world. The International Criminal Court, an impotent institution, is a great place for these dreamers to strut their stuff. Playing dress-up doesn’t have to end in childhood.

Professor Amanda Alexander writes in 2015:

This article questions the conventional histories of international humanitarian law, which view international humanitarian law as the heir to a long continuum of codes of warfare. It demonstrates instead that the term international humanitarian law first appeared in the 1970s, as the product of work done by various actors pursuing different ends. The new idea of an international humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions. Nevertheless, many of the provisions of the Protocols remained vague and contested, and their status, together with the humanitarian vision of the law they outlined, was uncertain for some time. It was only at the end of the 20th century that international lawyers, following the lead of human rights organizations, declared Additional Protocol I to be authoritative and the law of war to be truly humanitarian. As such, this article concludes that international humanitarian law is not simply an ahistorical code, managed by states and promoted by the International Committee of the Red Cross. Rather, it is a relatively new and historically contingent field that has been created, shaped and dramatically reinterpreted by a variety of actors, both traditional and unconventional.

…. It was only at the very end of the 20th century that practitioners of international humanitarian law, following the example set by human rights organizations, suddenly accepted the authority of Additional Protocol I and, with it, a humanitarian vision of the ius in bello. This shift can be seen in both the newly confident use of the term ‘international humanitarian law’ to describe all of the laws of war and a renovated understanding of the content of this law – an understanding that is exemplified in the changing interpretation of the principle of proportionality.

…Prior to the 1960s, the term ‘international humanitarian law’ was not used to describe a field of law, and even when the term started to be used in the 1960s it still denoted quite a different understanding of the law to its current incarnation.

…the 1974 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, but its actual rules were contested throughout the Conference and continued to be questioned even after the Conference concluded. …the Diplomatic Conference was an unwieldy gathering, consisting of around 700 delegates.110 These delegates separated into conflicting factions, which expressed different views about what international humanitarian law was and should be. The background of the Yom Kippur War, the Vietnam War and the decolonization struggles shaped these views and lent them urgency. The Third World and, nominally, the Eastern Bloc thought international humanitarian law should protect guerrilla fighters and obstruct imperialist forces. The ICRC and most Western states hoped to recognize guerrillas and provide them
with a modicum of protection in order to encourage guerrillas to follow the laws of war, while still maintaining a clear distinction between combatant and civilian. Some states argued that the principle of discrimination should prohibit the use of certain modern weapons;113 others insisted that it could not do so. Many delegations, especially those from the Eastern Bloc and Third World, considered that international humanitarian law should not contain a principle of proportionality, claiming that it gave military commanders an unlimited right to decide to launch an attack if they thought there would be military advantage. In response, Australia, the United Kingdom and the USA argued that the principle of proportionality should be retained. States, they pointed out, were not going to abandon bombardment – all the law could reasonably hope to do was to govern it.

…Guerrillas, who had previously been denied protection, could now qualify as combatants.123 Civilians were defined for the first time in Article 50 and given a raft of
unprecedented protection. In addition to the new codification of the principles of proportionality and discrimination, Protocol I demanded that precautions be taken to protect civilians, banned reprisals against civilians and civilian objects and prohibited the starvation of civilians, which had previously been allowed under the laws of war.

…Many states refused to sign or, having signed, did not ratify Additional Protocol I. The list included India, Indonesia, Iran, Iraq, Israel, Malaysia, Morocco, Pakistan, the Philippines, Singapore, Sri Lanka, Sudan, Thailand, the USA, and the Soviet Union.131 Despite the optimism of the US delegation,132 President Ronald Reagan announced in 1987 that the USA would not ratify Additional Protocol I, describing it as ‘fundamentally and irreconcilably flawed’.

…described the Protocol as confusing, impracticable, inconsistent with the evolution of the laws of war and detrimental to the protection of civilians.139 The Protocol’s dual humanitarian aims of protecting civilians and non-traditional combatants, Parks claimed, were manifested in such an impractical way that it was unworkable and, ultimately, regressive. By blurring the distinction between civilian and combatant, the Protocol endangered civilians. It was also dangerous, Parks argued, because it moved the traditional onus for the protection of civilians from the defender, who should have control over civilians, to the attacker, who would not…

[Re the 1991 Gulf War]… It amounted to nothing more than a prohibition on the direct or negligent targeting of civilians.162 The US campaign, commentators agreed, satisfied this low threshold. Even the most distressing events, such as the destruction of the electricity system that resulted in hundreds of thousands of civilian deaths, were legal.

…Law, international lawyers felt in the early 1990s, could not prevent the horrors of war.166 All it really did was to legalize them…

The attention of the international legal community was focused instead on the ethnic conflicts in Yugoslavia and Rwanda and the attempts of the newly functional UN Security Council to respond to these events – authorizing peacekeeping operations aimed at helping beleaguered civilians, setting up ad hoc tribunals for Rwanda and Yugoslavia and beginning work towards an International Criminal Court.

These conflicts and the new tribunals changed the focus, the constitution and the sensibility of international legal scholarship. Suddenly, there was an institutional
environment established to enforce international humanitarian law. International humanitarian law was no longer just a ‘pseudo code’. Instead, it became seen as a real option for study, research and work – an exciting and tangible pursuit. A new cohort of academics entered international law and started producing a large body of literature. This literature was quite different to the sceptical and pessimist work of the early 1990s, which was dominated by military lawyers and a military perspective. The literature that emerged over the 1990s was developed by a larger group of academics and practitioners, often drawn to the field by humanitarian concerns. Their work was concerned with the victims of warfare and the crimes committed against them – crimes against humanity, crimes of sexual violence and genocide. The victims of landmines were also a high profile issue during these years.170 International lawyers, discussing these issues, employed a humanitarian vocabulary, which was appropriate in these contexts, and they were open to human rights values in a way that their predecessors were not…

… Lawyers, almost without exception, would acknowledge that France, Turkey and the USA were not parties to the Protocol, but then they would simply state that the ‘provisions of the Protocol are universally accepted as customary international law and are binding authorities on all nations’. How did lawyers come to such a straightforward conclusion, which was so different to the debates that had taken place less than a decade earlier? A glance at their footnotes will reveal, almost without exception, a reference to HRW [Human Rights Watch] or Amnesty International.

Lawyers interpreted the principle of discrimination much more strictly; they narrowed the class of acceptable targets and permissible weaponry. As for proportionality, it was no longer considered a permissive principle. The NGO reports interpreted it strictly – more strictly even than the vague, pragmatic words of Article 51 would necessarily require. They stated that the principle of proportionality placed a duty on combatants to choose a means of attack that avoided or minimized damage to civilians. They also insisted that no military benefit could justify high amounts of civilian casualties. For lawyers adopting the NGOs’ approach, this meant that much of the campaign was judged to fail the test of proportionality. Aerial bombardment was disproportionate, any weaponry besides precision-guided munitions was disproportionate187 and the destruction of bridges or other infrastructure used by civilians was disproportionate. To all intents and purposes, any attack that did not put the protection of civilians ahead of military objectives was disproportionate.

…The fact that HRW’s interpretation of international humanitarian law was considered authoritative at the end of the 1990s, but not at the beginning of the decade, was largely due to the willingness of international lawyers and academics to accept and repeat their pronouncements. It has long been noted that academics have an unusually important role in the determination of international law…

…authority, the ability to discuss international humanitarian law and to be heard, can depend less on who speaks than on how they speak about the law. A sufficient grasp of legal language and conventions can allow a practitioner of international humanitarian law to intimate expertise and speak authoritatively about the field.

…A scientist, Thomas Kuhn wrote, could not work outside a paradigm and do science. It seems that an international lawyer must, similarly, conform to a paradigm for their work to be considered legitimate

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Discourse, Reality, and the Culture of Combat

Posted on June 14, 2024 by Luke Ford

Historian John A. Lynn wrote in 2005:

Historians need to differentiate between the reality of war and die way in which a culture conceives of war: between the concrete and the conceptual. At die conceptual pole, the term ‘discourse’ signifies the complex of assumptions, perceptions, expectations, and values regarding conflict, violence, and armed struggle. Discourse does not necessarily assume an ideal of war, as it often encompasses elements that are far from ideal. As demonstrated by the highly conventional style of warfare practised by the classical Greeks, a discourse can exert great influence in shaping reality. Sometimes, however, the discourse does not match die contemporary weaponry and logistics, and must adjust. During die First World War, romanticized conceptions of warfare perished in the trenches of 1915. A feedback loop circulates between discourse and reality, even though the two are never identical.

A particular society and culture can produce different discourses, defined by class, gender, or profession. Thus, during the Middle Ages, the aristocracy idealized and lauded chivalric violence, the peasantry feared it because they became its unwilling victims, and the Church condemned it as sin, except on crusade. Since the rise of general staffs, military professionals have systematized their discourses in theory and doctrine. This has never been clearer than in the masterful, but culturally specific, work of Karl von Clausewitz, which has influenced military conceptions of warfare for over one hundred and sixty years. The tensions between conflicting discourses and the discord between the dominant discourse and reality make for some of the most interesting questions to be answered by military history.

If a society produces a discourse on violence, central to its value system but unable to be matched with the reality of war, it may devise a perfected reality that conforms with its ideal discourse, if only for the élites.

…When one side interprets the enemy’s actions as improper conduct of war, it may exchange its own dominant discourse for an alternative that justifies a reality stripped of constraints. This is most easily done when cultures collide in battle, as they did in the Pacific in the Second World War. Each side came to see the other as uncivilized and to be treated with unbridled brutality.

…The racist views of the Japanese held by US troops only registered at the peripheries of combat: the reluctance to take prisoners, the treatment of those taken, and the abuse of the dead. Racism determined neither US miHtary doctrine nor the US strategy that culminated in the use of the atomic weapons.

…Bodi the chosen case studies and the theory challenge the claim made by Victor Davis Hanson, John Keegan, and Geoffrey Parker that one can trace a definably Western way of war back to classical Greece. Hanson insists that an unbroken 2,500-year tradition based originally on Greek practice explains not only why Western forces have overcome great odds to defeat their adversaries but also their uncanny ability to project power well beyond the shores of Europe and America.

…Claims of continuity in the West become less tenuous as analyses of cultural discourse rather than as statements about the reality of war. Western literature kept alive stories of classical commanders and conquests and preserved some classical studies of warfare, but the memory of the classical past was used selectively, often as metaphor.

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