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The laws of war and moral judgment*

Published online by Cambridge University Press:  26 October 2009

Terry Nardin
Terry Nardin
Affiliation:
Associate Professor in Political Science, State University of New York at Buffalo
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Extract

Reflection on the laws of war seldom fails to produce misgivings. On the one hand, it seems clear that practices as ugly as those of warfare must be regulated, if only to secure society against the emergence of unchecked brutality. Yet when the rules that have been devised toward this end are examined, doubt is cast upon even this cheerless justification by the extent of the violence and destruction with which they are compatible. The laws of war seem to condone the use of force in pursuit of indefensible policies, as well as to allow a degree of suffering by those affected by war that is often disproportionate to the apparent advantages to be had from fighting. Even the few restraints the laws do require are frequently ignored. The result is scepticism concerning every aspect of the laws of war: their effectiveness, their legal validity (and thus their very existence as rules of law) and their defensibility in terms of the requirements of morality from which they appear so often to deviate. Such scepticism is only strengthened by reflection on the vagaries of criminal enforcement and punishment, which at times are not only ineffective, but also introduce their own special injustices. It is a scepticism well expressed in the observation that if international law is at the vanishing point of law, then the laws of war are at the vanishing point of international law. The excesses of present-day warfare have given particular impetus to one aspect of this attitude toward the laws of war, that based upon doubts concerning their moral adequacy.

Information

Type
Research Article
Information
Review of International Studies , Volume 3 , Issue 2 , July 1977, pp. 121 - 136
Copyright
Copyright © British International Studies Association 1977

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References

page 121 note 1. Lauterpacht, H., ‘The Problem of the Revision of the Law of War’, British Yearbook of International haw, xxix (1952), p. 382Google Scholar.

page 124 note 1. The view that the laws of war can be regarded as protecting human rights in armed conflicts is one that has received particular emphasis in resolutions of the U.N. General Assembly, and is defended by Draper, G. I. A. D., ‘The Relationship Between the Human Rights Regime and the Law of Armed Conflicts’, Israel Yearbook on Human Rights, i (1971), pp. 191–207Google Scholar.

page 125 note 1. The Monist, lvi (1972), pp. 1–19.Google Scholar

page 125 note 2. Taylor, Telford, Nuremberg and Vietnam: An American Tragedy (Chicago, 1970)Google Scholar. Wasser-strom's views were initially presented in the form of a review of this book that appeared in The New York Kevieiv of”Books (03 June 1971), pp. 8–13Google Scholar. All references to Wasserstrom are to the later version of his essay (see p. 125, n. 1, supra).

page 126 note 1. Wasserstrom, , op. cit. p. 1Google Scholar

page 126 note 2. Taylor, , op. cit. p. 40Google Scholar.

page 126 note 3. Ibid. p. 41.

page 127 note 1. Wasserstrom, , op. cit. p. 19Google Scholar.

page 128 note 1. Taylor, , op. cit. p. 36Google Scholar; Wasserstrom, , op. cit. p. 4Google Scholar.

page 128 note 2. Taylor, , op. cit. pp. 142–3Google Scholar; Wasserstrom, , op. cit. pp. 6–7Google Scholar.

page 130 note 1. Taylor, , op. cit. p. 35Google Scholar.

page 130 note 2. Ibid. p. 36.

page 130 note 3. Taylor's use of this and other examples is examined by Marshall Cohen, ‘Morality and the Laws of War’, in Held, Virginia, Morgenbesser, Sidney and Nagel, Thomas (eds.), Philosophy, Morality, and International Affairs (New York, 1974), pp. 71–88Google Scholar.

page 131 note 1. The Rules ofhand Warfare (Washington, D.C, 1917), p. 14Google Scholar.

page 131 note 2. Cohen, , op. cit. p. 79Google Scholar. Cohen also notes that if Taylor's view that mutual violations invalidate a rule or principle is correct, then from the fact that both sides in the Second World War committed acts that exceeded the requirements of military necessity one might conclude that the latter principle has itself ceased to form a valid part of the laws of war. Taylor does not, however, press his view of the relationship between efficacy and validity to this conclusion.

page 132 note 1. Kalshoven, Frits, Belligerent Reprisals (Leyden, 1971), p. 364Google Scholar.

page 133 note 1. Wasserstrom is more cautious, arguing only that it would count against the moral defensibility of the laws of war ”if part of the idea of a war crime is, as some of the literature surely suggests it is, that an offense ceases to be an offense once the practice becomes uniform”. Op, cit. p, 13, emphasis added.

page 134 note 1. These facts are amply documented in the official history of the bombing offensive by Webster, Sir Charles and Frankland, Noble, The Strategic Air Offensive Against Germany, 1939–1945, 4 vols. (London, 1961)Google Scholar.

page 134 note 2. Taylor, , op. cit. p. 143Google Scholar, helps to perpetuate this myth when he writes that in bombing German cities the Allies were ”attacking a functioning part of the German war machine with a weapon that could not discriminate among those in the target area”. The same misconception is reflected in the claim of Bishop, Joseph, Justice Under Fire (New York, 1974) at p. 267Google Scholar, that ”the massive bombings of Hamburg and Frankfort, though they necessarily inflicted enormous suffering on civilians, were not in my opinion, war crimes, for the RAF had no other way to knock out such legitimate targets as arms factories, submarine pens, and transportation networks”.