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Guide to Baxter’s Scholarship on Humanitarian Law

Detlev F.Vagts

A full listing of Richard Baxter’s writings would cover a broad range of international law, including such basic topics as treaties and the formation of customary law. They appeared in a wide variety of places—in law journals, popular magazines, congressional hearings, lectures at the Naval War College, the Harvard Law School and the Hague Academy. Many of his works are difficult to access at this time.

One of Baxter’s achievements is not reproduced here. He made a major contribution to the 1956 revision of FM 27—10, the Army manual on the Law of Land Warfare. However, that was an institutional publication and Baxter, one infers, did not agree with all of it.[1] He played a significant role in getting the 1956 project under way. The then extant version of the Manual dated to 1940 and had been overtaken by events in many respects. Baxter attended a conference in Cambridge, England and spurred on the American Society of International Law to support the project.[2] Though amended, the 1956 version guided many American officers over the years and remains the basic text.

As one turns one’s focus to his oeuvre on humanitarian law we find such wide- ranging pieces as his classic article on the life and work of Francis Lieber, the progenitor of modern humanitarian international law.[3] Much of his work can be grouped around two problem areas. The first was the issue of the applicability of humanitarian law during conflicts involving combatants who do not belong to a nation state. The other was the need to protect non-combatant civilians from death and injury during conflicts, an issue of critical importance during World War II that remains undeniably significant.

Despite the hope that World War II had been the war to end wars, a hope that discouraged many from studying the laws of war, conflicts persisted. In the Baxter period non-state conflicts arose in the context of what were called wars of national liberation.[4] The peoples of Dutch, English, French, and Portuguese colonies were rising to claim independence and nationhood. Their fighters did not operate like regular armies. They struck at moments of opportunity and then disappeared into the jungle or the forest or into the mass of the peaceful population. They wore no uniform and had no commanders who could be held responsible for violations of the laws of war. They committed acts regarded as treachery by orthodox observers and were ruthless about the losses suffered by their non-combatant fellow citizens. The long struggle of Algeria for independence from France incorporated all of these elements. Such fighters were basically guerillas, labeled by Baxter as “unprivileged combatants” not entitled to prisoner-of-war status if captured.[5]

Somewhat similar to those clashes was the long war in Vietnam which could be classified in various ways—as an interstate clash between the United States and Vietnam, as an uprising by the Viet Cong against the Western-oriented government of the Republic of Vietnam in Saigon, or as a mixture of the two. The United States and Republic of Vietnam armies fought against both uniformed regulars from the North and non-uninformed guerillas indigenous to the South. The other protracted struggle involving the United States was the Korean War of 1950-53, which was a confrontation between the armed forces of two states and entailed the establishment of a United Nations Command comprising large American forces and lesser but significant contributions by more than a dozen other countries as well as the army of the Republic of Korea. It terminated without a peace treaty.[6]

The United States avoided direct participation in the long lasting wars between Israel, the Arab states, and the population of the territories occupied by Israel.[7] Other hostilities did not involve the United States, such as those between India and Pakistan, between Iran and Iraq, and between the Communist and Nationalist armies of China. More complications were introduced by the new phenomenon of conflicts in which United Nations forces participated. Forces for Compliance with the Law of War (Chapter 7). As noted above, Baxter reacted forcefully to the idea that they are somehow exempt from compliance with law.

As of 2012 learning about the comparable set of issues is concentrated on “terrorism” and the battles waged by the United States to repel it. The concept of terrorism is difficult to define and one sees why Baxter took a skeptical look at terrorism (Chapter 10). Al Qaeda is an even stranger foe than guerillas since it often operates without appearing in public. Who is a member may be quite unclear and people may commit terrorist acts without being in any way organizationally connected with it. U.S. courts have treated the battle against Al Qaeda as a “war” for various purposes.[8] We have established military commissions designed after a World War II model.[9] The rules establishing them were hastily drafted and unclear in a manner that would have exasperated Baxter’s orderly mind. One of the puzzles they create is the question of what constitutes a violation of the laws of war, a prerequisite for a military prosecution.[10] Does conspiring to aid a terrorist amount to such an act? Baxter with his proclivity to adhere to established rules would probably not have thought so. We have denied terrorists prisoner of war status. Baxter would have been aghast at the cruelties inflicted by our agents at Abu Ghraib, Guantanamo, and elsewhere, as aghast as he was at the atrocities at My Lai in Vietnam.

Baxter took a deep interest in weaponry, old and new, and in the ways it could be controlled so as to minimize injury to non-combatants. He wrote about poison gas, its use during World War I and the 1925 Geneva Convention that outlawed its use.[11] Nuclear warfare also drew his attention. He addressed the devastation of civilian homelands during World War II, in particular through area bombing, that caused demands for a revisiting of those issues. Meeting in Geneva the nations produced Additional Protocols to the 1949 Geneva Conventions in 1977. Along with George Aldrich, Baxter participated actively in the negotiations.[12] Although the United States did not ratify them it has regarded important portions of them as representing customary international law binding on all nations. As a result Air Force operations during the two Gulf wars were carefully planned and monitored so as to minimize civilian losses. Technical advances making weaponry more precise helped. Baxter would have been gratified to see the intense involvement of lawyers in the targeting process in those wars and in the fighting in Afghanistan.

At the end of his career Baxter took part in creating a collective writing—the judgment in the Tehran Embassy case in the World Court.[13] The opinion was joined by all the Western judges. Baxter must have been embarrassed by the failure of the clumsy American attempt to rescue the hostages by force.

In all ofhis writings Baxter displayed a straightforward, economical style. He was always realistic and unsentimental in appraising the claims of contending parties. He could sense what restrictions different countries and armies could be persuaded to accept. He drew upon an intimate knowledge of military affairs built upon his service in the United States Army. Although he could not predict developments any more than the rest of us he was constantly aware of change as in his “Perspective— The Evolving Laws of Armed Conflicts” (Chapter 13). This volume constitutes the only published collection of Baxter’s writings on the law of war available to the armed forces, government leaders, scholars, and the public. They are as important and timely now as when they were written.

  • [1] We have on file an early typewritten draft dated March 1, 1954, which we could furnish to anyinterested scholar.
  • [2] On this history see Donald A. Wells, The Laws of Land Warfare: A Guide to the U.S. ArmyManuals 11, 18-20,176-78 (1992).
  • [3] “The First Modern Codification of the Law of War; Francis Lieber and General Order No. 100”.The works and legacy of Francis Lieber have recently been re-examined in John Fabian Witt, Lincoln’sCode: The Laws of War in American History (2012).
  • [4] “The Geneva Conventions of 1949 and Wars of National Liberation” (Chapter 15); The GenevaConventions of 1949 and Wars of National Liberation, International Terrorism and Political Crimes(Item 187).
  • [5] “So-Called ‘Unprivileged Belligerency’ Spies, Guerrillas and Saboteurs” (Chapter 2).
  • [6] “Armistices and Other Forms of Suspensions of Hostilities” (Chapter 17). For a recent study ofthe end of wars see Note, “The End of Al Qaeda? Rethinking the End of the War on Terror”, 110Colum. L. Rev. 1865 (2010).
  • [7] “The Law of War in the Arab-Israeli Conflict: On Water and on Land” (Chapter 9).
  • [8] Hamdan v. Rumsfeld, 553 U.S. 557 (2006); compare Boumediene v. Bush, 553 U.S. 773 (2008)(detention of “terrorist” suspects).
  • [9] Ex parte Quinn, 317 U.S. 1 (1942).
  • [10] To extend military jurisdiction to other crimes would violate the constitutional guarantees of theright to trial by jury. See Detlev Vagts, “Military Commissions: Constitutional Limits on their Role inthe War on Terror”, 102 Am. J. Int’l L. 573 (2008).
  • [11] “Legal Aspects of the Geneva Protocol of 1925” (with Thomas Buergenthal) (Chapter 8); “LegalAspects of the Geneva Protocol of 1925 in The Control of Chemical and Biological Weapons” (Item137). The United States is now committed by treaty to destroying all of its stock of such weapons.
  • [12] See George Aldrich, “The Laws of Land Warfare”, 94 Am J. Int’l L. 42 (1980).
  • [13] United States Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980 I.C.J.Rep. 3.
 
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