Leiden Safety and Security Blog

Has international law undermined regulation of warfare?

Has international law undermined regulation of warfare? Signing of the first Geneva convention

“War is a mere continuation of politics by other means”, or so it has been famously written by Carl von Clausewitz. This implies that the way political actors engage in war is predicated on very rationalist premises. In reality, political elites and ordinary people opt for political violence for less rational reasons. For instance, once emotional underpinnings take over in a conflict, the victim may not remain content and restrained, leading to a possible retaliation and escalation. How savage the war can become has also been reflected in a popular motto among American soldiers, “kill ‘em all – let God sort them out” that dates to the thirteenth-century papal crusades. This motto is hardly an exception, as the history has been replete with examples of political violence that do not serve any political ends, but are simply instigated by emotional undertakings, undisciplined soldiers, and even worse, pure ruthlessness. When such violence does serve political ends, as is often the case with ethnic cleansing, such barbaric practice is palliated by other political measures.

In response to this scourge of war, legal measures have been implemented to limit its callousness. The first Geneva Convention, for example, mandated humane treatment of wounded and the protection for medical personnel. The Hague Convention prohibited the use of poisons, killing of prisoners, looting of towns and property by occupying forces, among other things. The Geneva Convention of 1949 deals with treatment of prisoners and civilians, as well as the rights and responsibilities of occupying powers. Subsequently, other treaties emerged to improve protections for individuals during armed conflict.

The problem, however, is that despite the benefits of having institutions and legal measures in place to regulate callousness in warfare, states are no longer willing to play the game legally, and the question is why?

One possible answer has been offered by Tanisha M. Fazal in her study on why states no longer declare war. Her main argument is that formal declarations of war have almost disappeared from the international arena due to the rise of the codified law of governing belligerent conduct (jus in bello) that creates significant costs for states that do declare war. In other words, belligerents that declare war are automatically responsible for adhering to jus in bello. The problem is that adherence to the full set of treaties and conventions is extremely costly. For example, the US military currently spends hundreds of millions of dollars to ensure maximal compliance with the jus in bello, yet it has still failed on many accounts. Failure to comply inflicts reputational costs, media scrutiny, and makes individuals liable for war crimes. The 1998 Rome Statute makes individuals, including state leaders, liable for war crimes and has given a reason for countries such as China, Russia and the United States not to be a party to the statute for the fear of liability in how their own wars are conducted.

Unfortunate consequence, or a moral hazard of sorts, has been that states, to avoid scrutiny, are increasingly fighting ambiguous wars. According to George Lakoff and Elisabeth Wehling, private military contractors, such as Blackwater, made the Iraq war possible because they gave the US government a lot of flexibility and very little accountability in facilitating its military operations. Others have followed, for instance, Russia with its “Wagner” group in Syria, and more radical contractors such as Malhama Tactical. No wonder that analysts such as Stefan Hedlund highlight an increase in “deviations from tradition”, where parties responsible for aggression and war conduct are no longer recognized as such, leading to denial of responsibility, violations of international law, and no obligation to reconstruct and reconciliate. In short, with a rise in private military actors, enforceable rules seem to be “doomed”.

Yet, there is inherent paradox in the way states frame their wars. On the international front, there is an increasing reluctance to hold any responsibility towards others, which results in bypassing of formal declarations of war, or even refraining from the use of that term altogether. On the domestic front, there is an increasing tendency to broaden powers of law enforcement in the name of hunting down terrorists, which inevitably entails using the term ‘war’ (such as ‘war on terror’).

Either way, we find ourselves in a difficult conundrum. Individual rights, both in international conflicts and at the domestic front, are being infringed upon due to the way wars are being framed. It is simply all too expected to see lawyers frantically trying to find ways to regulate how new wars are playing out. However, even with new regulations, the core issue will remain unaddressed: has over-legalization of war instigated the very behavior it sought to regulate? Or perhaps states are inherently driven to seek anarchy when they cannot engage in politics by any means save the ‘other’.

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