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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Willravel

I love it when people bring college discussions onto the internet! I miss school.

Lybia started internal and quickly became international. It started as a small insurgency against the Gaddafi administration, then it grew, but when Gaddafi's attempts to quell the potential rebellion were particularly brutal (though no less brutal than what's going on in other countries right now, such as Bahrain). The ICC warned that Gaddafi might be committing crimes against humanity, and then the UN stepped in. It became international as soon as it moved from an ICC warning to the UN Security Council, imho.

Quantifying human suffering has got to be tricky business, particularly when you're being asked to draw a line between acceptable suffering and unacceptable suffering. The brilliance of the Hague and Geneva conventions is their lines err on the side of too much suffering in cases that might seem gray.
Wow, I've never considered this question before. I have absolutely no idea.

I'm going to need to read about this and ponder a bit. Great discussion topic, KirStang.

KirStang

Thanks for the kind comments Willravel.

I won't pretend to know more about Libya than I actually do--I'll defer to people who've been keeping closer tabs than I have (NYT and The Economist is all I read).

I just thought it was interesting. A student posed the question: "If war represents the breakdown of diplomacy--then isn't war basically the situation where law does not apply any more?"

To which the professor replied (with a cop out): "I think that's illogical...the law governs all war. All war is governed by law and the two are intertwined."

Which made me think about the positivist/natural law distinction.

If you consider every country as a sovereign, and international law as a series of treaties--especially since there is no police force to enforce laws like you would find in a traditional state(maybe except NATO/UN Sec. Council, but they aren't really 'police forces'). Then, a state should be able to declare war on another sovereign without need to comply with the limitations imposed by an international body. Of course, this isn't true if the state is party to a treaty that limits wars to just wars...

It's interesting also, where international bodies impose, through customary law, a 'just war' limitation on states that are not parties to treaties. In short, these international bodies are placing notions of universal human rights or, how war should be conducted, above the sovereignty of a nation.

Given that then, just how strong is sovereignty? Is that a notion that will be further eroded as the world becomes more international? This is especially interesting considering that States are ceding sovereignty in their Tort Claim Statutes..(i.e. Federal Tort Claims Act).

/rant.

I hope this topic takes off, as I find this particularly interesting.

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Plan9

Law is control.

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Whatever you can carry.

"You should not drink... and bake."

roachboy

There seems a pretty clear connection historically between these conventions and the spread of the doctrine of total war from Clausewitz into the real world.

Clausewitz famously defined war as the continuation of diplomacy by other means---the reverse of a state of exception---in the sense that there’s no logical suspension of all law. Rather, there’d be the creation of a separate legal space within which war was permissible. That’s kinda how I’d see at least the conventions that try to define war.

And the humanitarian conventions seem to me to follow from the declaration of the rights of man and the claim that there are universal rights. So an aspect of the 19th century republican (in the European sense) attempt to assimilate the French revolutionary tradition for itself. One of the better outcomes no less.

If you accept Clausewitz statement as an adequate definition of war, then it’d follow (I think anyway) that you’re tipped toward a positivist position. Personally, I think natural law is a misinterpretation of conventionally written axioms inside of positive legal documents, a misinterpretation that leads one to imagine that statements of prior right or precendent that set a law into motion indicate that those rights actually exist prior to or outside of the sentences that articulate them. They don’t exist until they are instituted. So there is no natural law except to the extent that it is elaborated as statements about some (imaginary) prior arrangement within positive law. But I digress.

Second—the notion of what is and is not international has functionally changed since 1945. the entire apparatus that was symbolized by Bretton Woods was designed to make international bodies that could limit problematic devolutions within nation-states. The motivation was fascism, obviously. The American interpretation of fascism was that it followed from currency crises. Whence the World Bank, IMF, Bretton Woods arrangement, etc. Currency collapse could trigger other stability problems—whence NATO et al (before they were diverted into cold war functions)…so national is a problematic term functionally since 1945. Except within the hegemon. So Americans like to pretend nations still exist. Particularly conservatives.

If the political logic of the post-1945 order was set up to prevent nation-states from collapsing and veering initially toward fascism and then later toward whatever other political viewpoint the united states and its pals decided not to like, then there are no civil wars. Unless the material interests of the dominant powers are not involved, so they are not inclined to act, so they don’t. Think Eastern Congo after 1994 as an example. So a civil war is an international war that the international community doesn’t care about stopping. I’m not sure that this is the legal definition of civil war, or the accepted understanding of the term in law---but it seems to be the case materially.

Does this make sense within a legal theory/law school discussion context?
I’ve not been to law school so am not sure….

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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite

KirStang

Actually that's some pretty insightful analysis...it's been a while since I've read Clausewitz, but that's a good point. If we accept war as a simple extension of diplomacy, instead of a break in diplomacy, then it would make sense to place all these limitations on war.

Also interesting on the natural law bit--that natural law is not so natural, but simply generally understood norms that have not been properly codified or expressed.

Finally, funny in that 'non international armed conflicts' are just basically wars that the international powers don't care about.

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aceventura3

I found the contents quoted in the article cited below interesting:

Read more: Qaddafi Forces Reportedly Shooting at Civilians From Roofs of Mosques - FoxNews.com

On one hand we have NATO who has taken on a responsibility to enforce international law and save civilians complaining about a counter-tactic to the way they have enacted the No Fly Zone. It is like they are saying the enemy isn't playing fair. But, who are they saying that to? They are the law enforcement, what are they complaining about? Why not fix it? The whole concept behind international law regarding war is based on the willingness and ability to enforce the law. If either is missing these laws are not worth the paper they are written on.

Also, it seems pretty clear that a warring party in a desperate situation has every incentive to violate international law if gives them an advantage over the other party that is willing to constrain themselves to international law. Win the war, explain it later is better than getting defeated. Laws involving war is for academics, warriors know better.

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"Democracy is two wolves and a sheep voting on lunch."
"It is useless for the sheep to pass resolutions on vegetarianism while the wolf is of a different opinion."
"If you live among wolves you have to act like one."
"A lady screams at the mouse but smiles at the wolf. A gentleman is a wolf who sends flowers."

filtherton

I think that law governs war the same way that it governs everything else. Which is to say, law is only relevant when there are able representatives around to enforce it. Just like law only governs the speed limit on the highway when there's a cop around.

EventHorizon

I'm going to agree with Mr. Clausewitz and say that war is just the continuation of politics through other means. nobody goes to war to indiscriminately level every building and kill every human in the way. violence is a very interesting means of international politics because as soon as politicians agree that violence is the answer and the generals take over, no amount of cleverness from their words is going to take back the people they've killed. going to war is a massive undertaking of imposing one's will upon another through physical force.

some would argue that abandoning words for weapons is the barbarian's way of solving problems, but its effective. all niceties and diplomacy aside, at the end of the day you're either dead or you're not. the difference being how you handled a situation presented to you. Like the Red Baron said: there is a fine line between cleverness and cowardice.

should noncombatants be killed? this might sound cold, but it all depends on the desired effect of whoever is doing the killing. the people/group/country responsible for those deaths need to be willing to accept the consequences, diplomatic, violent, or otherwise from doing exactly that but look at Gen. Lemay. he was a racist genocidal war criminal but there was some genius in the simplicity of his war strategy: kill enough of them and they'll stop fighting. so what'd he do? firebombed swaths of Japan. did the deaths of hundreds of thousands of noncombatants demoralize leadership? believe it. Lemay was the goddam Voldemort of the skies and he did terrible terrible things, but he was really good at it.

tl;dr: if you're going to go to war, be prepared to get alot more than you originally thought you were going to get.

---------- Post added at 02:02 PM ---------- Previous post was at 01:50 PM ----------

also, Starship Troopers (the book) taught me more about war theory than clausewitz, mao, and Sun Tzu (for more interesting stuff through read Boyd, FM 3-24, and Douhet). if you want to learn about how to kill people with more of an effect than just providing more worm food, check out as many different theorists as you can.

---------- Post added at 02:04 PM ---------- Previous post was at 02:02 PM ----------

dammit roach you beat me to it

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Does Marcellus Wallace have the appearance of a female canine? Then for what reason did you attempt to copulate with him as if he were a female canine?

Quote:

Originally Posted by canuckguy Pretty simple really, do your own thing as long as it does not fuck with anyone's enjoyment of life.

ASU2003

http://punditkitchen.files.wordpress...3184618391.jpg


"That terminator is out there. It can't be bargained with. It can't be reasoned with. It doesn't feel pity, or remorse, or fear. And it absolutely will not stop, ever, until you are dead."

It's even more scary when I have the same attitude (if I were in a war situation), and I have helped done some small part in producing these autonomous machines...

KirStang

To be deliberately provocative....

Should there be laws governing Libya's civil war? Is the Libyan army justified in using cluster bombs on Misrata (against the rebels). May Libya bomb Misrata to demoralize the city, and try to force the rebels to capitulate?

If not, then why not?

---------- Post added at 08:43 PM ---------- Previous post was at 08:30 PM ----------

What you've espoused is basically the principle of proportionality--that the amount of collateral damage must be proportional to the strategic/military value of the target.

Finally, it's also worth it to note that, in international law today, firebombing of Japan would be in direct contravention of Article 51 of Protocol I to the 1949 Geneva Convention: (Promulgated in 1977)

However, note that the USA is not a party to Additional Protocol I, but may still be subject to liability since Protocol I may have attained 'customary law' status (hence if the USA decides to bomb Iran in to submission--such actors may be legally liable).

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roachboy

1. I’m not sure that the law that’s being discussed here “authorizes” war or merely recognizes that they happen—and that it’s possible for the international community (however that’s constituted) to pass judgments on the reasons given for them.
Assuming that the international community cares about this or that particular case. Which isn’t given in advance.

Are there cases where the international community has acted to stop a war because of the grounds provided?

Most actions that I know of are done on humanitarian grounds.


2. As for Libya: it’s pretty obviously international now. Oil, baby. And lots of it. The international community tends to get more interested when large amounts of publicly important resources are at stake. When resources that are important to corporate interests are at issue, as has been the case in Eastern Congo, for some reason the international community is less interested. (a basic element used in the production of micro-processing chips. I’ll play by the rules of a pub discussion and not look it up. I don’t remember which one.)

And it’s not real clear that the period before the UN resolution was one of civil war either. Depends on the information you access and what you think it means.

That the international community is the position of limiting a nation-state’s sovereign ability to inflict damage on its own citizens is not in question—of course it can. That the international community might fuck up while trying to figure out how to co-ordinate actions is also given—but that has no bearing on the capacity of the international community in principle. It does bear on the adequacy of existing institutions, however.

I think NATO may find its functions coming under question if the situation in Libya turns out the be the trap that Gadhafi’s folk are saying it is (with all the caveats about bluster and posturing in place). It wouldn’t surprise me to see people agitating for a new, more co-ordinated transnational enforcement mechanism with some actual teeth.


Of course, the limitation on this—the obstacle to its being set up---is the metropole itself. Countries like the US are too vain (and wacky, in the American case) to countenance the possibility (much less the reality) that their actions would be judged beyond the pale. Arguably the Bush Administration would have been so judged with its adventures into war crimes torturous and extraordinarily rendered.

American conservatives committed to “realist” positions on international policy really detest international law and so would have you believe that every action is a referendum not on the organizational abilities of the international community to limit national sovereignty, but on the legal framework itself. That’s a political statement and not a legal one, and is, in my view, just another form of dangerous gas.


3. The extension of humanitarian law into the micro-management of soldiers’ actions on the ground is interesting and complicated and has been getting to be a more and more pressing issue as a function of Afghanistan….the conflict in a “low-intensity conflict” situation between military personnels’ attempts to insure their own safety/well-being as over against that of civilians to not get shot up.

I’m not sure there’s an easy answer for this one. I can see an argument that establishing and maintaining humanitarian law that limits the right of military people to do just anything to maintain their own safety can function as a moral limit that can on its own have a positive effect---if the desired goal is to limit civilian casualties. But I can also see why plan 9 posted the Heinlein quote above.

I was initially thinking that humanitarian law was easier to apply back in the days before low-intensity conflict became the de facto strategic center of military operations---but that’s not true. The doctrine of total war obviates any distinction between military and civilian. Whether that’s acceptable or not depends on who’s doing it. The only real war crime is losing a war.

Then I was thinking: what about the military actions before total war became fashionable? Things weren’t a whole lot better if you were a civilian and armies were stomping about nearby---they were like locusts descending on your food supplies and probably weren’t always chivalrous with the ladies. But civilians weren’t often massacred. This is not to say that there was a rigid divide military-civilian. At the same time, the geographies of war were different. More limited.

I dont imagine it's great to be a civilian in any war situation...

(btw i wrote this earlier today...sorry about all the caps: i found the op interesting and so it was easiest to write on a word processing platform and flip back and forth between it and the op. after a few minutes, i stopped trying to fight the authoritarian capitalization thing)

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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite

KirStang

I also want to add that, although this seems mastubatory and an academic exercise, such questions govern the treatment of Terrorists and the legal justifications of pursuing them and trying them (i.e. the Unlawful combatant issue).

Whoops. This was supposed to be an edit to my post above. Very interesting stuff in this thread.

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