Conduct of War

“5. Peoples are to observe certain specified restrictions in the conduct of war” (LP: 37)

“The Purposes of the United Nations are:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;”

Art. 1 (1) of the Charta of United Nations (1945) The conduct of the parties at war must encompass all the previous “principles”. It should treat everyone decently, according to the circumstance. Rawls gives also a theoretical account on jus in bello. He underlines six principles:

1. The aim of a just war is a just and lasting peace, especially with the people’s present enemy.

2. Well-ordered peoples do not wage wars against each other.

3. In the conduct of war, well-ordered peoples must carefully distinguish three groups: the outlaw state’s leaders and officials, its soldiers, and its civilian population.

4. Well-ordered peoples must respect, so far as possible, the human rights of the members of the other side, both civilians and soldiers.

5. Well-ordered peoples are by their actions and proclamations to foreshadow during the war the kind of peace they aim for and the kind of relations they seek.

6. Practical means-end reasoning must always have a restricted role in judging the appropriateness of an action or policy. (LP: 94-97)

These are largely familiar from Immanuel Kant´s sketch, Perpetual Peace. The aim of war is said to be just and lasting peace. Thus Rawls is set on finding the principles of the violent conduct that would lead to durable peace out of the right reasons, i.e. not out of the balance-of-powers. When concluding peace, all the parties must think it to be the right solution and all need to be satisfied with their position.

In order for this to be achieved war has to have educative purpose. Human rights need to be respected as much as possible in their most extended system; the responsibility for the causes and conduct of

war need to be split between the political leaders and the civilians, and only first are to be held accountable. Consequently, actions of war are to be conducted in such a manner as to disadvantage leadership while protecting civilians as much as possible. Furthermore, even in times of war public reason needs to be practiced, in the sense that the aims and reasons for war need to be clearly and publically stated.

Rawls is explicit on the fact that between well-ordered peoples there would be no war. Provisions that are to regulate the reasons for the possible war and the conduct in ware are directed to yet well-ordered peoples. Hence, it is a valuable guideline for the conduct of states if they have as their aim their own well-orderedness and durable peace.

Legal Interpretation

In defending the acts of Milo in an internal armed conflict in Rome, Cicero pleaded that the laws are silent in arms “inter arma silent enim leges” (Cicero 4.11). It is still questionable whether law has any force in regulating behavior in exceptional, anarchic and violent situation as wars. This skepticism is fortified with the fact that all international law prohibits armed conflicts in any case. Hence the problem with the law in war is how to restrict human behavior in a situation which itself neglects the law; or how to restrict human behavior when individual or collective survival is endangered.

The law of war is usually known as International Humanitarian Law (IHL). As the name says its focal-point is human rights protection. Modern International Humanitarian Law (IHL) is said to have been created in 1864 when the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was adopted.⁶⁸ The basic purpose of the international law in war or international humanitarian law is to regulate a common understanding of violent acts during the war and to establish that human beings, no matter whether they are enemies or allies, deserve protection. In the report of the International Committee of the Red Cross, How does Law Protect in War? (2011), we read that as early as 3000 BC, there existed rules protecting certain categories of victims of armed conflicts and regulations limiting or prohibiting the use of certain means and methods of warfare (Sassòli, Bouvier, Quintin 2011: §3). However, the purpose of these rules was not the protection of some humanitarian cause but an economic gain. The rules included, for example, the prohibition to poison wells or to kill

68 The first convention was followed by three more: Second Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1906; Third Convention relative to the Treatment of Prisoners of War, 1929; Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949. All four together are referred to simply as the Geneva Convention. The 1949 conventions have been modified with three amendment protocols: First relating to the Protection of Victims of International Armed Conflicts (1977); second relating to the Protection of Victims of Non-International Armed Conflicts (1977); third relating to the Adoption of an Additional Distinctive Emblem (2005). To the international Humanitarian Law, also count the two Hague Conventions (1899 and 1907) which mostly dealt with the permissible and impermissible violence in war.

prisoners of war. The farmer’s goal was the exploitation of conquered territories, while the latter’s was the exploitation of prisoners as slaves. Nevertheless, the effect was humanitarian and was present in non-European societies, e.g. African societies, as well. The triggering point for the modern IHL dates back to the battle of Solferino, a battle in northern Italy between French, Italian and Austrian forces in 1859. A Geneva businessman, Henry Dunant, horrified by the suffering of the soldiers published a short book, A Memory of Solferino (1862), where he delineates the horrors of the war but also gives his recommendations on how to deal with the possibility of similar conflicts in the future. He invited States

“to formulate some international principle, sanctioned by a Convention inviolate in character” and giving legal protection to wounded soldiers in the field (Sassòli, Bouvier, Quintin 2011: §3, 3).

Dunant’s proposal found a positive echo in Europe. A few months after the publication of his book, a small committee, the precursor of the International Committee of the Red Cross, was founded in Geneva. Soon, the committee persuaded the Swiss Government to convene a diplomatic conference.

This conference was held in Geneva in August 1864 and adopted the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. For the first time, States agreed–

in an international treaty open to universal ratification – to limit their own power in favor of the individual;

in addition, for the first time, war was subject to written, general law. Ever since there have been a growing number of treaties, battlefield caudexes. The development of modern humanitarian law, or law of war conduct, has evolved along the following two lines:

a) Categorization of victims protected by the humanitarian law

b) Categorization of situations protected by humanitarian law (not just international but also national conflicts fall under it)

The second line was then further elaborated in the Hague Law, the provisions of which relate to limitations or prohibitions of specific means and methods of warfare. These two branches of law were merged with the adoption of Protocols II and I in 1977.

Meanwhile, international law in war grew into a large bulk of battlefield codes and unilateral or multilateral treaties and conventions. These however do not differ from what Rawls, or even Kant suggested. Rawls’ principles hence do not give a direction for solving the paradoxes of international law in war—it just affirms its importance.