Arguably in any war, collateral damage in the form of human lives and the displacement of humanity is the most tragic, and most in need of attention of the international community. From an international perspective, the operative law with regard to victims of war is international humanitarian law.
by Dr. Ruwantissa Abeyratne in Montreal
“Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” – Sun Tzu (512 B.C.)
It was arguably the greatest known orator of human history – Cicero – to whom is ascribed the maxim Inter arma enim silent leges, which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero’s time, has taken on a new flavour across the world: from Syria to Iraq; from Afghanistan to Yemen, finally settling down at Ukraine’s doorstep. This essay is not political, nor is it exploratory of the reprehensibility of the parties involved in the chaos and mayhem that is occurring in Ukraine with the invasion of Russia. Rather, it discusses some fundamental norms pertaining to the disruption of peace and the laws that might protect those who pay the ultimate price.
As Sun Tzu said in his Art of War, all war is based on deception. The aggressor justifies his actions and the victims of aggression reject all explanations offered. The latter seek refuge in what is euphemistically termed the “rules based international order built on the tenets of international law”. So what are these laws? And how effective are they?
At the apex of this “international order” is the United Nations, which, as this essay was being written was engaged in heated discussions and debate on the crisis in Ukraine. The United Nations Charter makes States fundamentally promise to settle their disputes by peaceful means and to refrain from the use of threat or force against each other. The power and influence of this document has been so great that the law of the Charter, the wide acceptance of that law by governments and peoples, and authority of the United Nations and world opinion behind the law and other political reactions (stronger because war has been outlawed) can claim substantial credit for the fact that the world has avoided major was since 1945.
Jurists will argue on the legitimacy of this international move by the member States of the United Nations which are generally guided by the United Nations Charter, Article 2.4 of which provides that all Members must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. As a counter argument is the compelling need to protect persons who are attacked by a regime to quell a peaceful protest. Emmerich de Vattel published his magnum opus The Law of Nations in 1758 when the Seven Years War was taking place in Europe. The war began when Frederick the Great invaded Augustus III’s Saxony. The book had a great impact on Augustus III who appointed Vattel to the Privy Council in 1759, and made him chief adviser of the Government of Saxony on foreign affairs. Vattel defines war as “that State in which we prosecute our right by force.” saying that public war – between States – is “that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order” . He goes on to say ““finally, as we are not bound to grant even an innocent passage except for just causes, we may refuse it to him who requires it for a war that is evidently unjust, —as, for instance, to invade a country without any reason, or even colourable pretext”.
Vattel opines “ it is the commercial interests of states that, in the absence of a civitas maxima, support the maintenance of the international order. Thus, the role of neutral states, according to Vattel, is to sustain international trade in the face of interstate conflict”. Consequently, Vattel maintains that neutral trade cannot be sacrificed to the interests of belligerents and notes that “it is certain, as they have no part in my quarrel, they are under no obligation to renounce their commerce for the sake of avoiding to supply my enemy with the means of carrying on the war against me.” Things have moved on since then and economic and commercial sanctions have become a tool of remonstrance which ultimately and inexorably adversely affect both the aggressor and the defender or his allies.
Arguably in any war, collateral damage in the form of human lives and the displacement of humanity is the most tragic, and most in need of attention of the international community. From an international perspective, the operative law with regard to victims of war is international humanitarian law. This limb of law is also known as the law of war, the laws and customs of war or the law of armed conflict. Basically, international humanitarian law encompasses four limbs, the first being that persons who are not, or are no longer, taking part in hostilities must be respected, protected, and treated humanely. They must be given appropriate care, without any discrimination. Secondly, captured combatants and other persons whose freedom has been restricted are required to be treated humanely.
They should be protected against all acts of violence, in particular against torture and if they are brought to trial they have the right to enjoy the fundamental guarantees of a regular judicial procedure. Thirdly, the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. No superfluous injury or unnecessary suffering must be inflicted. Finally, in order to spare the civilian population, armed forces are required at all times to distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Neither the civilian population as such nor individual civilians or civilian objects should be the target of military attacks.
Within these four precepts, international humanitarian law is entrenched as the legal corpus comprised of the Geneva Conventions and the Hague Conventions as well as subsequent treaties, case law, and customary international law. The Geneva Conventions consist of four treaties formulated in Geneva, which set the pace in Standards for international law as applicable to humanitarian concerns. The fourth Convention, which relates to the protection of civilians during times of war in the hands of an enemy and under any occupation by a foreign power, provides in Article 3 that even where there is not a conflict of international character the parties must as a minimum adhere to minimal protections that should be accorded to certain categories of persons.
These persons are described as: non-combatants, who usually are civilians, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause. Article 3 also requires these persons to be in all circumstances treated humanely, with the following prohibitions: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b)taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Article 4 defines a person protected by the Geneva Conventions as one who, at a given moment and, in any manner, whatsoever, finds himself, in case of a conflict or occupation, in the hands of a Party to the conflict or occupying power of which he or she is not a national. However, it explicitly excludes nationals of a State which is not bound by the Convention and the citizens of a neutral state or an allied state if that state has normal diplomatic relations within the State in whose hands they are.
The term “war” is no longer used in its traditional restrictive sense of a conflict involving international dimensions. In the modern sense, war is any prolonged state of violent, large-scale conflict involving two or more groups of people and is now considered to include non-international armed conflicts as referred to in Article 3 of the fourth 1949 Geneva Convention. Also, humanitarian law does not apply only to victims of wars between international actors. Victims of non-State actors are also entitled to the protection of these laws.
This essay closes with two quotes relevant to the current context by Sun Tzu “Move swift as the Wind and closely-formed as the Wood. Attack like the Fire and be still as the Mountain…The supreme art of war is to subdue the enemy without fighting.” By no means should laws be silent in times of war. When handing down his dissenting judgment in the International Court of Justice in the 1996 Lockerbie Case Justice Weeramantry quoted Mr. Martens, the delegate of Czar Nicholas II, at the 1899 Peace Conference “ If from the days of antiquity to our own time people have been repeating the Roman adage 'Inter arma silent leges', we have loudly proclaimed, 'Inter arma vivant leges'. This is the greatest triumph of law and justice over brute force and the necessities of war."
Post a Comment