International Law Issues
The Just War Tradition that Grotius researched and articulated so carefully in his great corpus juris on international law began to be formally declared as positive law in the nineteenth century. In 1862 President Lincoln directed that a code of rules be developed for the conduct of the Civil War.
As a result, General Orders 100, known after its principal author as Lieber’s Code, was adopted in 1863 and became the first instance since Ancient Rome of a nation adopting a formal code of law to regulate its Army’s conduct toward enemy soldiers. Lieber’s Code also specified rules for the protection of innocents as well as the treatment of prisoners.
About the same time, Henry Dunant and a group of Genevese citizens founded the International Committee of the Red Cross; and in 1864, in Geneva, Switzerland, an international conference adopted the “Convention for the Amelioration of the Condition of the Wounded Armies in the Field.” Subsequent conventions held in Geneva in 1929 and 1949 addressed the treatment of prisoners, the protection of civilians, the treatment of sick and wounded, and the status of medical persons and facilities.
In 1868 representatives of various nations met in St. Petersburg, Russia, and adopted a declaration against the use of explosive bullets. The reasoning behind this declaration is significant.
The only legitimate object that states should endeavor to accomplish during war is to weaken the military force of the enemy: for this purpose, it is sufficient to disable the greatest number of men; this object would be exceeded by the employment of arms which uselessly aggravate the suffering of disabled men, or render their death inevitable; the employment of such arms would, therefore, be contrary to the laws of humanity.
This was important because, unlike Lieber’s Code, which was an internal document, this was an international agreement regulating the conduct of war and clearly acknowledging the principle that unnecessary harm is contrary to the “laws of humanity.” Both of these documents were incorporated into the international peace conferences held at The Hague in 1899 and 1907.
These agreements, to which almost every nation of the civilized world is a signatory, comprise much but not all of what is considered international law for the conduct of warfare. In addition to some more recent but less comprehensive agreements (that we will discuss in conjunction with relevant topics in later chapters), customary law still plays a significant role in Bellum legal, as the Preamble to the Fourth Hague Convention of 1907 states:
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.
This principle is reinforced in the Geneva Convention of 1949. Which does more than simply echo the 1907 agreement; it also adds that the denunciation of or withdrawal from this convention Thus international law has some of the characteristics of English common law in that it is grounded in custom and precedence as well as formal rules, much the way Grotius had argued.
Given this comprehensive tradition of Bellum justum dating back for nearly two millennia, and this impressive tradition of Bellum legally recognized at an international level for over a century, we must inquire into the reasons why mankind’s attempts to control both the initiation and the conduct of war have met with only limited success. Can it be, as Donald Wells argues, that “We have limited commitment to the laws of war precisely because of the military unwillingness to accept restrictions”? Or is it some more fundamental problem with the very notion of regulating the conduct of sovereign nations, as Paul Schillp argues:
The relations among nations with each other today can, in truth, only be characterized as anarchical… This is merely another way of saying that the relations of nations with each other are not subject to the law.
The first criticism of the laws of war is an objection to the content of the law: specifically, to such caveats to the humanitarian principles of jus in Bello as a military necessity or the obligation to obey superior orders. We will save our discussion of these topics for Section III. The second criticism aims at the very idea of calling a rule law in the absence of a common power to legislate formally and enforce compliance. This is the topic we will examine in this chapter.
Hugo Grotius’s advocacy of universal, natural laws and customs be highly controversial. Criticism of this view has its roots in a phi- that imposes legal as well as moral obligations on states continues to losophyphilosophy of law called positivism, which dates from the nineteenth Proponents of legal positivism argue that jurisprudence and ethics century and is still accepted in various forms by many today.
Are unrelated disciplines and that it is simply a contingent fact that Indeed, the relationship between moral and legal rules often seems they share a common language of obligations and prohibitions, rather arbitrary. For example, there are (or have been) laws that are clearly immoral, such as those regulating slavery, and apartheid.
Impressments, and certain religious observances and prohibitions. Likewise, some laws are amoral, such as those that mandate the use of seat belts, stipulate concrete vaults for burial, or require that a goat be sacrificed instead of two sheep. In certain cases, however, laws do formalize moral rules such as those that prohibit rape, murder, or selling alcohol on Sundays.
Read More: Hugo Grotius and justice war
And, finally, there are recognized moral rules that are not regulated by law, such as tipping a waiter for good service, not cutting in line at the supermarket, informing your date if you have AIDS and certain instances of keeping promises or telling the truth.
The Positivist avoids this confusion by excluding from the science of law all matters of an a priori, or metaphysical nature, such as moral obligations. Under the Positivist account, normative questions concerning which rules of conduct should be declared as de jure laws are distinct from purely analytic questions of jurisprudence proper.
Individual laws that prohibit certain behaviors might be thought of as functions that link specific behaviors to punishments. Ideally, a system of law is a fully contained, logically coherent system, where the role of the judiciary is analytic rather than judgmental. The requirement for a rule to be a law, then, is simply that it be declared by a duly constituted authority that has the power to force compliance.
We quickly see the importance of this conception of law to our enterprise. If the law is understood in the Positivist way, there are no international laws of war because rules cannot properly be considered laws when there is no recognized (or effective) common authority to enforce compliance or punish noncompliance. Even treaties must be considered as prescribing moral rather than legal obligations. Obligations that cannot be enforced are not really laws, but mere voluntary prescriptions like charity or friendliness. The problem is summed up in the following passage:
It is obvious that, in the present state of the world, no civil law exists between independent states-such nations having no common superiority. No common tribunal, and no common executive, can have no legal relations in the strict sense of the word legal.
Because sovereign states recognize no authority outside of their own will, they are free to adopt whatever rules they choose: and, of course, they can abrogate them whenever it is in their interests to do so. What is called “international law,” proponents of this position argue, should more properly be called “international morality.”
There are several ways jurists have responded to the Positivist argument. Some claim that formal sanctions are not a necessary condition for the efficacy of laws. In primitive societies, for example, taboos may be obeyed without question for such long periods that their purpose is completely lost.
And as Freud notes: “Taboo is a command of conscience,” where conscience is defined as “the inner perception of objections to definite wish impulses that exist in us; [and] the emphasis is put upon the fact that this rejection does not have to depend on anything else, that it is sure of itself.
The legal Positivist would have to argue that primitive societies that have no need for and, hence, no formal sanctions also have no laws. This seems unreasonable. Grotius, quoting Plato, responds that laws can have informal sanctions that serve the same purpose as formal ones enforced by the state: but he denies any essential relationship between moral rules and laws. According to Hart’s account, the rules that are operative in primitive societies are primary or “pre-legal.”
These rules can be thought to constitute a legal system only after a formal structure of secondary rules is in place that governs the way primary rules are introduced, eliminated, varied, and the facts relating to their violation conclusively determined. Moreover, members of such societies often make no distinction between moral and legal obligations. As Hart puts it:
In a primitive society] there might be nothing corresponding to the clear distinction made, in more developed societies, between legal and moral rules. When this early stage is passed, and the step from the prelegal into the legal world is taken, the means of social control now includes a system of rules containing rules of recognition. Adjudication, and change, this contrast between legal and other rules hardens into something definite.
In “advanced” legal systems moral questions are restricted to the secondary rules that specify procedures for how laws are recognized, adjudicated, and changed. Legal questions are strictly concerned with “is there a law that is relevant to this case?” Sanctions do not play the same crucial role in Hart’s formulation of legal positivism (compared to earlier ones such as Austin’s) because Hart believes that most group members willingly follow the group’s rules.
In fact, one’s personal psychological identity is derived, at least in part, from membership in a community or group that is defined by the rules that it recognizes or that bring it into existence. These members of a community have what Hart calls an internal point of view toward their society’s rules, This means that they view violations of the group’s rules as sufficient reason for incurring punishment and/or group hostility-that is, the rules themselves provide a reason for behaving in certain ways and punishing those who do not because they are my rules.
In advanced societies, this internal point of view consists of identification with the system of secondary rules-such as a constitution. In other words, when people derive some of their personal identity from their status as citizens of a particular nation, the rules passed by that nation’s constituting document are, in a way, each person’s rules. A system of secondary rules is not necessary for primitive societies because members live in an intimate relationship with the primary rules.
Those who have an external point of view, on the other hand, are motivated to follow the rules because of the threat of sanction: they require predictable punishment or group hostility as a sufficient reason for not violating a rule.
There will always be some members of a community or group. Hart notes, that will view the rules as an imposition and will follow them only when coerced. Because of their external point of view pun- they view the rules as “your rules that I must follow to avoid punishment.” Hence, sanctions are necessary so that “those who would voluntarily submit to the restraints of law shall not be mere victims of the malefactors who would…reap the advantages of respect for law on the part of others without respecting it themselves.”
Hart’s view has considerable appeal. It establishes an evolutionary link between morality and positive law, while at once insisting on the ideal objectivity of the latter. Moreover, Hart provides an explanation for at least a prima facie obligation to obey the law based on one’s personal identity as a member of a group, the domain of which is defined in terms of those who view the rules as their own.
Finally, heart notes that even though there is generally a common disposition among the members of a group to obey the group’s rules, sanctions are required as a guarantee that those who voluntarily obey cannot be taken advantage of by those who do not obey.
Before we explore just how Hart’s concept of law helps us considerably in our attempts to understand international law, let us examine critically one aspect of Hart’s account that has proved problematic.
A key aspect of Hart’s theory is that while the mere presence of laws tends to obligate those who are subject to them, they are void of any essential moral content.
An articulate and persistent critic of Hart’s version of legal positivism has been Ronald Dworkin Dworkin argues that the meaning of law extends beyond a literal interpretation of the meaning of the words that express the law, much the way a literal meaning of a poem often fails to capture the poet’s intent.
And, in fact, the legal debates that occur in appellate courts often concern this quest for “real” or intended, rather than literal, meanings. Working cites several case examples, one of which will suffice to elucidate his point.
Elmer murdered his grandfather to inherit the grand- father’s estate. Elmer was caught, tried, and convicted. The deceased man’s daughters, who would have been entitled to the inheritance had Elmer died before his grandfather, sued. They argued that Elmer should not enjoy the fruits of his crime and that the inheritance should go to them. The will in question had been legally executed and there was nothing in the state statutes that would allow for any deviation from the letter of the will. Nevertheless, the court upheld the suit and denied Elmer the inheritance.
Judge Earl, writing for the majority, argued thus:
A thing that is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing that is within the letter of the statute is not within the statute unless it is within the intention of the makers.