Law implies order and restraint and can act to deter war, whereas war means the absence of both. Efforts to regulate war are as old as war itself. Nations have always strived to limit the conduct of war with legal codes right from the ancient times. Proponents of such efforts assume that bringing war within the bounds of rational rules may somehow “humanize” war and control its brutalities. History reveals us that the development of a more elaborate legal regime has preceded apace with the increasing savagery and destructiveness of modern war. It also supports the view that ancient wars were lawless and had legal codes with humanitarian provisions similar to the modern laws of war. Nevertheless, the two World Wars lacked features of humanitarian law. They saw the law subverted to the dictates of battle, reduced to a propaganda battlefield where belligerents organized attacks and counter-attacks. Ultimately, the law failed to protect civilians from horrifying new weapons and tactics. Both the World Wars exhibited the inadequacy of the existing laws of war to prevent the frequent commission of wartime atrocities.
Today, International humanitarian law (IHL) provides a distinction between laws governing the resort to force (jus ad bellum) and laws regulating wartime conduct (jus in bello). Jus in bello is further divided into ‘the humanitarian laws’ (the Geneva laws), which protect specific classes of war victims such as prisoners of war and ‘the laws of war’ (the Hague laws), which regulate the overall means and methods of war. It is noteworthy, that the Geneva laws served the interests of the more powerful nations.
The ‘humanitarian laws’ and the ‘laws of war’ displays the interests of those nations that dominated the international conferences where these laws were drafted. The Humanitarian laws are characterized by strict prohibitions, whereas the Hague laws are vaguely worded and permissive with less regard for humanitarian consequences. It is important to understand that with the development of these legal principles, war has long been limited largely by factors independent of the law. For complex military, political, and economic reasons, belligerents tend to use the minimal force necessary to achieve their political objectives.
A detailed understanding pertaining to that requires an in-depth knowledge of the role of law in deterring wartime atrocities. By sanctioning military necessity, the laws of war ask that only belligerents act in accord with military self-interests. Belligerents who meet this requirement receive in return a powerful platform to convince and to protect their controversial conduce from humanitarian challenges. Moreover, the capacity of the laws of war to subvert their own humane rhetoric carries an implicit warning for future attempts to control wars, the promotion of supposedly humane laws may serve the purposes of under strained violence.
Rousseau rightly quotes: “the aim of war is to subdue a hostile state, a combatant has the right to kill the defenders to that state while they are armed; but as soon as they lay down their arms and surrender, they cease to be either enemies or instruments of the enemy; they become simply men once more, and no one has any longer the right to take their lives. War gives no right to inflict any more destruction than is necessary for victory.” In this way, Rousseau turned to reason as the basis for the law of war. The modern laws of war however claim precedent in the chivalric practices of medieval era. A more in-depth view of this era, however, finds the same coexistence of law and atrocities.
It is very crucial that the laws of war should be revised and re-codified from time to time taking into consideration the provisions under the Charter of the settlement of international disputes, which prohibits use of force. War not only affects the combatants but also the civilians and in most of the cases, the nature of the war is such that observance of the rules of war becomes impossible. Hence, there is a need for enforcement of human rights during war more specifically for protecting the civilian population. Where power prevails over law, it is the fundamental function of law to help in asserting the authority of power. In a varied and distinct ways, International humanitarian law aptly serves that purpose.
Author is a doctoral scholar at the Faculty of Law, University of Münster, Germany
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