KirStang

So we had an interesting discussion in class today:

International law regarding war has two branches: Jus ad Bellum and jus in bello. The goal of such laws is to limit some of the more horrific aspects of organized violence. The Hague conventions, most notably in 1899 and 1907 regulate the means and methods of war, and the Geneva conventions of 1864, 1906, 1929 and 1949 are designed to address humanitarian concerns--for example, prohibit the indiscriminate bombing of civilians and treating surrendered soldiers properly, as well as distinguishing between combatants and civilians.

In sum, these laws (a) address the legality of war (did this nation legally enter in to war with another nation?) and (b) how a nation may obliterate their enemies. (Ban on hollowpoints, chemical weapons, radiological weapons, proportionality in collateral damage).

But in here lays a subtle contradiction that bothers me. War represents a breakdown of diplomacy and other means of pressure. The old maxim inter arma enim silent leges (in war, the laws fall silent) seem to apply here. For example, when the basic prohibition against killing another human being falls away, and when the goal is to kill/incapacitate other humans as quickly as possible, it seems contradictory to limit the means of killing.

On the other hand, given the horrific nature of war, it would seem unjust to suspend universal notions for the sake of victory. In international law, there's a universal customary prohibition against torture and any such acts, even done as a 'state action' against a State's own people, and torture is considered a prosecutable offense, even if the State is not a party to any international treaty or body. Thus, it would seem appalling to permit war to operate as a blanket free-for-all.

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This is particularly interesting in this day and age--especially where in International Law, wars are distinctly defined as 'international' (within the reach of international bodies of law) and 'internal' (to which only Common Article 3 of the Geneva convention applies). However, in the past, a civil war (in the former Yugoslavian Republic) was deemed 'international' since a neighboring country provided payroll, logistical and command support.

To this I ask, is the Libyan war 'internal' or 'international?' Should a sovereign have the unlimited means to defend it's existence (i.e. China) or should sovereigns be limited in what they can do(i.e. Libya)? If a sovereign is limited, what overarching principle governs a sovereigns actions? (Since international bodies *generally* tend to lack police powers).

Finally, does law *give* authority to start a war (positivist law argument)--or do states inherently have the right to declare war (natural type law argument)?

There are more interesting observations regarding humanitarian law and how it expects servicemembers to assume more risk (Sniper in Church--should we permit the shelling of the building, at the risk of hurting innocent civilians--or should we demand that soldiers fire and maneuver in to the church--thus causing a larger loss of life to soldiers, but at the reduced collateral damage to civilians?--This was reflected in Humanitarian Watches criticism of the 1999 NATO bombings in Yugoslavia. In that scenario, since NATO could not take out Surface to Air Missiles, all planes were to conduct sorties at 15,000 feet and above, thus enhancing the safety of pilots, but causing the misidentification of targets, including the infamous bombing of the Chinese Embassy.)

Discuss...

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