Comments of Professor Gordon B. Baldwin

Chair of International Law, Naval War College

Professor Baxter’s remarks relating to securing individual compliance with the rules of war suggest several observations. In the first situation he describes, concerning a war between a law-defying and a law-abiding state, it is assumed that individuals in the law-defying state have actual knowledge that the law-abiding state makes meaningful distinctions between war crimes and justifiable conduct. How can this knowledge be created? What mechanisms are available to create in the mind of this susceptible individual the belief that there are war crimes and the misconduct will be adjudicated fairly? Baxter’s analysis requires us to conclude that the problem of communication is a major one, and that we must not neglect publicizing our own belief in the efficacy of the laws of war.

The remaining six situations in his paper illustrate occasions where the most effective sanctions behind the laws of war are the tactical and strategic advantages to be obtained by adherence. To these we should devote more attention.

The fear of retaliation and the expectation of reciprocity may be based upon a tactical analysis. General Bradley reports in his memoirs how concerned the commanders of Overlord were that the Germans might use gas against the Normandy bridgehead. No gas was used by either side presumably because neither side believed that any decisive military advantage could be gained.

The expectation of humane treatment of prisoners of war may induce surrender, or at least discourage last-ditch defenses. The Nazis’ brutality during the Russian campaigns of 1941-1942 had the effect of encouraging rather than discouraging resistance.

Adherence to the rules of war may, moreover, reinforce the discipline of an armed force. Napoleon once remarked, “Nothing will disorganize an army more or ruin it more completely than pillaging.” By retaining the right to pillage, subject only to his own direction, he was able to use the army more effectively as a political arm of the nation.

Professor Baxter’s reference to the writings of S. L. A. Marshall is instructive. In his book Men Against Fire, Marshall reveals the difficulty American infantrymen in World War II had in killing. Medical Corps psychiatrists discovered that an appreciable number of soldiers feared the act of killing more than the risk of being killed. The soldier confronts two opposing sets of demands. On the one hand the nation demands that he kill in its service; on the other hand the dictates of his upbringing suggest that he should not kill. Perhaps compliance with the laws of war will help to reconcile the two commands.

With respect to the value of reparations, Professor Baxter correctly shows that to expect compensation for breaches is unrealistic. This, however, is not a problem peculiar to international law. There is no adequate measure for much ofthe damage that the law seeks to compensate. Reparations retain some measure of value in that they illustrate acceptance of state responsibility and may lend useful publicity to a nation’s adherence. Their value as a symbol of compliance should be noted.

Although Professor Baxter’s suggestion that the General Assembly “confirm in a resolution the humanitarian provisions of the Geneva Conventions of 1949” is worth support, we should remember that the decisionmakers in our armed forces are not easily reached by such pronouncements. I remain skeptical of the value of much military instruction given to sleepy soldiers by bored instructors and accordingly am not at all impressed by Mr. Forman’s assurances of hours of compulsory instruction throughout the armed forces’ educational complex. International law instruction deserves more considered treatment. The Naval War College’s extensive program, totaling about 1/18th of the year’s curriculum, has impressed me, although I perhaps betray the bias of my profession in urging that the amount of total time devoted to it be doubled. I say this because military education is education in the management of violence and law is itself an element in the management. Law contributes to power because the extent to which power is effective—is persuasive—varies, depending, among other factors, upon its legitimacy. It is my assumption that given two equal amounts of naked force, that force which is exercised legitimately, with a view toward compliance with international law, is more likely to be accepted and is less likely to be resisted.