Comments of Colonel Howard S. Levie, U.S.A. (Ret.)
Saint Louis University School of Law
Exactly eleven years ago today, on Friday, April 24, 1953, our speaker, who was then masquerading under the alias of Major Baxter, made the following statement at the Society’s annual meeting:
Those who are most scornful ofthe attempts which the law ofwar makes to mitigate human suffering in war inevitably point to the barbarities which were practiced in the second World War. These accusations overlook the extent to which states did comply with the law of war... .We should not be dismayed if this last legal restraint—this “last-ditch” law— sometimes does not appear as efficacious as we might wish it to be.
I am sure that you will all agree that, although he may have no other virtues, he does have the virtue of consistency!
At that occasion eleven years ago the then Major Baxter pointed out that the day was the 90th anniversary of Francis Lieber’s General Orders No. 100, “Instructions for the Government of the Armies of the United States in the Field.” Today then is the 101st anniversary of that memorable event in the codification of the law of war. It is only right that we should, on a date made so significant by Professors Lieber and Baxter, pause and give consideration to the problem of the extent to which there actually is “compliance during hostilities” with the rules of international law pertaining thereto, rules which have developed over many centuries and which have, during the past century, been the subject of numerous international conferences and codifications, some of which, such as Geneva and The Hague, constitute international legislation of the most far-reaching nature, while others, such as Brussels and Oxford, although merely academic exercises, nevertheless had a very real effect on things to come.
Shortly after World War I a number of writers in the field of international law, such as the anonymous author of the article in the 1920-1921 British Year Book of International Law, took the position that war was an event which would no longer occur in an orderly world and that, therefore, research and work in the law of war was wasted effort. We all know how valid was that prophecy. Unfortunately, the end of World War II brought forth the same arguments and in 1949 a majority of the International Law Commission declared itself opposed to the study of the law of war because “it was considered that if the Commission, at the very beginning of its work, were to undertake this study, public opinion might interpret its action as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for maintaining peace.” Fifteen years and approximately forty or fifty wars later the subject is still not on the agenda of the International Law Commission.
Professor Baxter’s talk, which I can only describe as being typical of the thoughtful, penetrating, and invaluable contribution to international law which we have long since come to expect from him, bears the subtitle “Reciprocity, SelfRestraint and the Laws of War—Lessons from Recent Experience.” When I was originally invited to be a commentator here today and had not yet seen the “subtitle” of the talk, I gave some thought to the subject and at that time it occurred to me that there were four possible reasons why nations and individuals comply with the laws of war: 1. Self-restraint or respect for law; 2. Reciprocity, including fear of retaliation or reprisals; 3. Fear of ultimate personal sanctions; and 4. Fear of mobilizing adverse world opinion.
I must confess that the Hague provision for the payment of compensation for violations of the law of war did not seem sufficiently important to be included in my list.
I am very much afraid that in all too many cases none of these reasons is adequate. Very few holds were barred on either side in the hostilities between Nazi Germany and the U.S.S.R.; and the treatment received by our prisoners of war in North Korean and Chinese Communist hands is only too well known, and this despite the fact that we held more than ten times the number of prisoners that they did. Here I am afraid that I must disagree with Professor Baxter’s evaluation of the comparative treatment received by U. N. prisoners from North Koreans and Chinese Communists. Treatment by the former was bad from lack of resources; treatment by the latter was worse and with malice aforethought.
I am not at all sure that there is basically much difference between self-restraint and reciprocity. A nation at war probably exercises self-restraint not only because of respect for the law but also because of the fear of being subjected to reciprocal action. During World War I, Imperial Germany weighed the advantages and disadvantages of self-restraint and decided in favor of the initiation of the use of poison gas because it believed that it would be advantageous to it to do so. In World War II, Nazi Germany undoubtedly went through the same thought processes before deciding against the initiation of the use of poison gas because it determined that it would be disadvantageous to it to do so. The extent to which the Allies could or would reciprocate was undoubtedly the determining factor in each instance.
Several years ago Judge Jessup said:
It is generally asserted, particularly by those who have not devoted much study to the history of the laws of war, that it is quite a futile exercise to seek for any regulation of warfare ....
In the same article he states that:
... The rules governing the treatment of prisoners of war... rest on self-interest, although the movement for their adoption had a humanitarian motivation. . . .1
This very self-interest makes it all the more difficult to understand why, in 1941, when tens of thousands of Russians had already been captured by the Nazis, the U.S.S.R. gave such a cold reception to the proposal of the International Committee of the Red Cross that it agree to take certain reciprocal measures with regard to prisoners of war.
I believe that we are safe in assuming that, in the future, personal sanctions will continue to be imposed for violations of the law of war. But as Professor Baxter pointed out, such sanctions are imposed only after the war is over—when there is a victor and a loser—and when the individual violator has been found. At the time of the violation of the laws of war the violator rarely expects to be on the losing side— and if he is not, he need fear little. Undoubtedly, knowledge of the inevitability of the imposition of sanctions would tend to increase individual compliance with the laws of war during the course of hostilities, but it is extremely doubtful that even the unusual provisions of the four 1949 Geneva Conventions in this regard will, in fact, have much effect as far as the victor is concerned.
Until recently I would almost automatically have included world opinion as one of the forces which impels a nation to comply with the laws of war during the course of hostilities. However, I recently had occasion to read an article by Fred Charles Ikle which appeared in Foreign Affairs several years ago, and this caused me
51 A.J.I.L. 760, 761 (1957).
to pause and reconsider the weight to be assigned to world public opinion in the area of compliance with the laws of war. Although Mr. Ikle was writing in another field—arms control—what he had to say is equally applicable to our subject. Here is what he said, appropriately modified to apply to the context of this discussion:
“World opinion” is such an amorphous concept that one finds it difficult to determine just how it can injure a violator [of the laws of war] ... One reason world opinion is so important is that its memory is so short. If the world’s reaction cannot be translated immediately into substantive political or military changes damaging to the violator, it will lose all force.
About 80 years earlier, General von Moltke, in a letter to Professor Bluntschli, had made this statement concerning the then recent Oxford Manual:
. . . What neutral State would ever take up arms for the sole reason that two powers being at war, the “laws of war” had been violated by one or both of the belligerents? For offences of that sort there is no earthly judge.
Of course, this is all the more true when you have a world at war, with perhaps Switzerland, Sweden, and Cambodia representing the entire neutral world opinion! Mr. Ikle concludes that “the reaction of world public opinion” would not constitute a sufficiently powerful sanction to prevent violations of international obligations. I have, alas, arrived at the conclusion that it is impossible to challenge his statement. Of course, world public opinion will undoubtedly be effective in many small brush fires, but here there are even more powerful and effective sanctions available. We will hear more on this subject this afternoon.
I hope that what I have said will not appear to have placed me among those who feel that codifying and extending the laws of war is a useless gesture. On the contrary, on the whole, as Professor Baxter has ably demonstrated, for whatever the reason, the laws of war are very largely effective; and even if their effectiveness were only minute, the effort expended would still be worth while!
Discussion from the floor was then opened.
Mr. Mohammed K. Nawaz, speaking to Mr. Baxter’s suggestion of a United Nations General Assembly resolution declaring certain principles of the laws of war, called attention to practical difficulties. He observed that the view that General Assembly resolutions were not binding was too simplistic, and referred to the need for distinctions as to the legal effects of General Assembly resolutions. He noted especially the force of General Assembly resolutions under Article 17 of the Charter on budgetary matters. He asked Mr. Baxter to explain how General Assembly resolutions of the type mentioned by him can be held to be binding on Member states of the United Nations.
Mr. Baxter declared that there was a fifty-minute and a fifty-second answer to the question, and he would try to give the latter. First, one might give the jurisdictional answer and say that the question would be dealt with at the afternoon session on “Public Opinion as a Force toward Compliance,” by Mr. Krzysztof Skubiszewski of the University of Poznan. The answer on the merits might be that an agreement by 113 states, if not creative of a legal obligation, was powerful evidence of the views and practice of states. Such an agreement might therefore reflect the state of customary law. Mr. Baxter also believed that a General Assembly resolution of the character he had outlined might help to clarify the legal situation in United Nations operations and in civil conflicts.
Mr. Ved Nanda took issue with the equation he thought had been made between wars of national liberation and guerrilla wars. He noted that the Spanish Civil War and many civil conflicts in Latin America and the Middle East were not wars of national liberation. He thought compliance involved special problems in different types of conflicts. He believed that a United Nations General Assembly resolution would be beneficial because it would formalize the expectations of the world community.
Mr. Forman acknowledged that not all wars of national liberation involved terrorism. The American Civil War and many civil wars in Latin America, for example, did not involve terrorism as a policy. On the other hand, however, guerrilla operations today frequently do employ terrorism as a policy when, for instance, guerrillas come into a village and hang the mayor or other officials in order to cow the population and establish a center of operations.
Professor Julius Stone wished to associate himself with the views of Mr. Baxter and also Mr. Nawaz on General Assembly resolutions. He thought there was a distinction between General Assembly resolutions so far as they purported to impose obligations on Members and so far as they purported to bind the General Assembly itself. He himself took the view that peace-keeping forces need not be viewed legally as organs of the General Assembly. He thought that, in the case of peace-keeping operations, the General Assembly was generally co-ordinating the activities of volunteering states within its functions as regards international peace and security. The General Assembly might lay down self-denying ordinances with regard to this co-ordinating action which contributed to peace-keeping operations. It might lay down rules for itself and for the Secretary General in relation to selection of the Member states to contribute contingents. Even if the enforcement of discipline within a contingent remained with the contributing state, a General Assembly resolution might be an important instrument of influence and persuasion by the Secretary General on the participating states, to help make that discipline effective.
Professor William V. O’Brien inquired whether Mr. Forman took the view that the laws of war apply to any entity involved in a material war and whether such a view was a reason for holding that a General Assembly resolution was not necessary.
Mr. Forman thought that rather than go into the legal question of the powers of the General Assembly, the question he was raising was whether General Assembly action was necessary. He noted that the various war crimes trials, international and national, had relied more on general, humanitarian obligations than on specific treaties. He believed that the conduct of wars of national liberation would not be affected by a General Assembly resolution, and questioned whether the recent massacres of Watusis in East Africa would have been affected by a General Assembly resolution.
Professor O’Brien saw in Mr. Baxter’s paper a reflection of the latter’s jurisprudential attitude toward the laws of war. He thought Mr. Baxter took the view that the law is definite and strict. Professor O’Brien said emphasis might be laid either on general principles or specific obligations.
Mr. Miguel A. Marin called attention to the fact that the United Nations has seldom used the word “war” but has generally employed the term “hostilities.” He therefore drew particular attention to a statement of the United Nations Unified Command in Korea that the forces of the Command would apply the laws of war and would treat prisoners of war in accordance with the Geneva Convention.
Mr. James O. C. Jonah noted that war crimes trials were trials of individuals and sometimes organizations, as at Nuremberg. He had had no military experience himself, and he had often asked himself how an individual could resist superior orders, how an individual could face a commander who gave an illegal order. He was of the view that individuals were not subjects of international law. Until they were, he did not see how responsibility could be put on an individual. Mr. Jonah also noted that the discussion had centered on the laws of war. He asked how a distinction might be made between war crimes and crimes against peace or crimes against humanity.
Dr. Charles G. Fenwick recalled that he had long been in controversy with Professors Kunz, Baxter and others over the revision of the laws of war. He was opposed to any revision. Stress should be laid on prevention. He declared that, in an atomic age, the Hague Conventions were archaic, and he questioned whether revision of them was possible. The only force left was humanitarian principles or decent Christian feeling. That part of the old law was still valid.
Professor Lawrence Jarett assured the meeting that future officers of the United States merchant marine, many of whom became naval reserve officers, were instructed in the international law of the sea, including the laws of naval warfare, at the United States Merchant Marine Academy at Kings Point, New York. At the critical moment when his ship was sinking, a merchant marine officer would at least know whether the attack had been illegal!
Admiral Powers observed that the United States Coast Guard Academy also taught international law.
Mr. John H. E. Fried pointed out that “emergency,” that is, the fear of losing the war, cannot justify violations of international law. As, for example, emphasized in the Krupp judgment, war is an irrational method of solving problems, and the law of war would become meaningless if it could be suspended in the very situation for which wars are fought. Incidentally, he thought that there seems to exist little historical evidence that last-minute violations really changed the ultimate out- come—which, in any case, is often greatly at variance with the outcome on the battlefield; this is again demonstrated by developments since World War II. Because war is no longer considered an acceptable arbiter, military victory may become increasingly less decisive.
He also called attention to honor as a force making for respect for the laws ofwar. In the nuclear age it is especially important that breaches of the law be not considered honorable, but result in ostracism. In this respect it is regrettable that, for example, General Kesselring, although convicted as a war criminal by a British court, could become president of the German War Veterans Association.
On the matter of superior orders, he considered it imperative that everything be done to prevent the giving or execution of illegal orders to deploy or use nuclear weapons. He suggested a United Nations treaty imposing on the parties an obligation to make their own provisions regarding the giving and execution of such orders as widely known as possible.
Mr. Parvez Hassan asked what might be done in the case of a clear violation of the laws of war by a United Nations peace-keeping force.
Mr. Jerome Silber referred to Mr. Forman’s remarks regarding terrorism in guerrilla warfare and the reluctance ofgovernments to take any action which might imply recognition of insurgents. The final paragraphs of Article III of the 1949 Geneva Conventions eliminated the legal problem of recognition of insurgents. He also called attention to the fact that Mao Tse-tung sometimes advised guerrillas to treat the peasants under their control well as evidence that, in certain circumstances, there might be another policy besides terrorism.
Mr. Baxter stated that several persons had mentioned that reprisals may be one of the means of securing compliance with the law of war. The fact is, however, that a common provision of the four Geneva Conventions of 1949 forbids reprisals against protected persons, including the wounded and sick, prisoners of war, and civilians. This prohibition applies for the most part to persons under the control of the enemy and thus by implication permits the taking of reprisals against military personnel and civilians not yet within the power of the enemy (notably in combat). Since very few restraints are in any event placed upon the use of violence in combat, the fact that reprisals may still legitimately be used by a belligerent against persons outside its lines offers very little scope for securing compliance with the law of war. Moreover, past experience has proven that the use of reprisals only lowers the standard of compliance by providing what purports to be a legal justification for what is actually a violation of the law.
Mr. Baxter expressed surprise that someone with such fastidious taste for facts as Mr. Forman should content himself with the regulations and reports of bureaucracy. Mr. Baxter’s assertion about the ignorance of United States personnel concerning the contents of the Geneva Conventions of 1949 was based on conversations with officers and on a survey made by an officer amongst his colleagues in a branch of the Army which is intimately concerned with these conventions.
Mr. Forman’s observations about guerrilla operations in civil war are ones with which Mr. Baxter found himself in substantial agreement. One of the merits of attempting to universalize the restrictions of the law bearing on some of the conduct in which guerrillas engage is that a declaration of the type mentioned would in itselfbe a weapon in the ideological warfare against this type ofcombat. As it is now, guerrilla warfare causes totally unnecessary suffering to great numbers of civilians, as well as to the relatively few military persons who fall into enemy hands.
There are admittedly great difficulties about the true juridical effect of a declaration giving application to certain principles of the law of war in all types of armed conflict. As pointed out by Professor Stone, such a declaration will both form part of the internal law of the United Nations and in another respect will confirm existing customary international law. More than this, however, such a declaration will also express the sense of the Members of the United Nations that the basic principles of the law should be extended to civil conflict and to actions by United Nations forces.
A question had been asked about the responsibility of the United Nations for violations of international law by members of national contingents. The ultimate responsibility, of course, rests with the United Nations, but, since disciplinary control remains with the national contingents, only they may carry out the trial and punishment of members of these forces. The United Nations does not presently have powers commensurate with its responsibilities.
Mr. Baxter made it plain that he had no quarrel with the principle that persons who have committed violations of the law of war should be prosecuted as war criminals. It is important, even as is being done in Germany, to press forward with these prosecutions. What he meant to emphasize, however, is that sanctions such as these may be slow in bringing about respect for the law in future hostilities and that there are other forces besides the conventional criminal and civil sanctions which make for some degree of compliance with international law. We must take account of the full range of methods available to secure obedience to this important body of humanitarian law.
The session thereupon adjourned at 11:50 o’clock a.m.