Law and War

Law and War

January 20, 1995

The Thomas Center, Fuqua School of Business

Duke University


About the Speakers. John Norton Moore is the Walter L. Brown Professor of Law at the University of Virginia School of Law and directs the University=s Center for National Security Law and the Center for Oceans Law & Policy. He chaired the American Bar Association=s Standing Committee on Law and National Security for five terms. He is the author or editor of eighteen books and over 140 articles and served for two decades on the editorial board of the American Journal of International Law. Leslie Green is University Professor Emeritus and Honorary Professor of Law at the University of Alberta. He has written extensively on a variety of aspects of international law and especially on the law of armed conflict, his most important works in the field being Essays on the Modern Law of War (1984) and The Contemporary Law of Armed Conflict (1993), which was based on the draft he prepared for the Canadian Department of Defence for its Manual of War Law. Ruth Wedgwood is Professor of Law at Yale University Law School, and Senior Fellow and Director of the Project on International Organizations and Law at the Council on Foreign Relations. She has written on proportionality in the use of force, the national security decision making process, the law of war crimes, and the law of the United Nations. James P. Terry is a colonel in the United States Marine Corps. He has served as Legal Counsel to the Chairman of the Joint Chiefs of Staff since June 1992. His career includes service in Vietnam as well as more than twenty years as a military lawyer. He has also written numerous articles on military law and policy including AThe Evolving U.S. Policy for Peace Operations, 19 Southern Illinois University (1994), and AOperation Desert Storm: Stark Contrasts in Compliance with the Rule of Law, 41 Naval Law Review (1993). Yoram Dinstein is President of Tel Aviv University, where he is also Professor of International Law and Yanowicz Professor of Human Rights. He has written extensively on subjects relating to international law, human rights, and laws of armed conflict. He is the founder and editor of the Israel Yearbook on Human Rights (20 volumes of which have been issued in English since 1971). His other publications include a six-volume treatise (in Hebrew) on international law. His latest book in English is War, Aggression and Self-Defence (2nd edition, 1994.)

Conference Proceedings. With slightly over ninety persons in attendance, John Norton Moore led off the conference with a presentation entitled “Democracy, Deterrence and War: Toward a New Paradigm in War Avoidance and Foreign Policy.” Moore opened by cautioning that many of our traditional assumptions about war causation and avoidance are easily undermined due to the wide variation in the empirical record and welter of different theoretical explanations. Scholars face a confusing taxonomy of civil wars, international struggles, and low intensity conflicts with little that would enable them meaningfully to compare these struggles. Further complicating our study of war is the fact that many of its perceived causes are not necessarily linked. Equally disappointing are our traditional theories of war avoidance, whose weaknesses seem to outweigh their merits. For example, while military strength is one component of deterrence, analyses focusing on the creation of a balance of power often fail to consider elements of deterrence such as communications between governments, the role of government structures, and expectations of authorities in other countries. Moore argued that, despite these problems, the United States has consistently sought to follow the Holy Grail of war avoidance in pursuit of its foreign policy goals.

In addition to war avoidance, the most important United States foreign policy objectives have been the promotion of human rights, the protection of our own environment and the global environment, and economic development. To achieve these four goals, the United States should do all in its power to foster the creation of stable democracies worldwide. Democracy, Moore suggested, would check the aggression in the nature of man that is so often magnified by totalitarianism. Governments with a system of checks and balances preventing the concentration of power not only tend to avoid wars, but are also unlikely to engage in the crime of democide??the mass slaughter of a nation’s population by its own government. Drawing upon the work of Rudolph J. Rummel, Moore noted that, during the twentieth?century, nearly 80 percent of mass deaths have resulted from democide conducted by totalitarian states while war can account for only 19.6 percent of instances involving massive loss of life.

In addition to the protection and promotion of human rights, democratic structures would assist our foreign policy goal of economic development. Politically open societies subscribing to the rule of law and market allocation of resources grow at dramatic rates, thus ensuring a healthy economic climate. Lastly, in terms of our goal of war avoidance, healthy democratic states would be less likely to engage in aggression. In a survey of more than 350 conflicts occurring between 1815 and 1991, Moore noted that only a tiny minority were caused by democracies behaving in an aggressive manner. Indeed, despite the best efforts of collective security or the use of third parties to settle disputes, the major conflicts of the twentieth?century appear consistently to fit the picture of a non?democratic regime deciding to wage war.

Moore’s contention that democracies do not initiate wars drew the greatest criticism during the lively panel discussion that followed. Pointing to the Mexican and Spanish?American Wars, Yoram Dinstein questioned the assertion that democratic nations are always the defender and totalitarian states the aggressor in international conflicts. Moore responded to this criticism by arguing that such counter-examples are few in number and should not bury the usefulness of the data underpinning his survey. While conceding that democracies can use force in an aggressive manner, Moore argued that the majority of the wars occurring between 1816 and 1991 indicate that totalitarian regimes are far more likely to force an outbreak of war. Aside from Dr. Dinstein’s contention that Moore had ignored wars launched by democracies, panel members also found Moore’s America-centrism disturbing. Canadian Leslie Green raised the point that what is in the best interest of the United States may not necessarily be in the interest of other democracies. Nor might other nations share our concept of what democracy is, a point countered by Moore’s argument that the democratic ideal is worldwide and not peculiarly American.

Following Moore’s presentation, Leslie C. Green spoke on “Enforcing the Law in International and Non?International Conflicts.” Dr. Green opened with a review of efforts by nations throughout history to check abuses by their armed forces during wartime. Although codes of military conduct have lengthy histories, as indicated by their inclusion in the biblical book of Deuteronomy, it was not until the end of the nineteenth?century that the first international codification of the laws of war appeared. Prior to conventions held in 1899 and 1907, laws regarding war crimes drew upon customary rather than treaty law. The years following the world wars witnessed increased efforts, such as the 1929 Geneva Convention and the Genocide Convention of 1948, to define what was and was not permissible during war. The height of this trend to create worldwide standards of conduct arrived during the late 1970s in an international movement to try war criminals who had participated in multi?national conflicts. However, punishment and enforcement of these conventions has too frequently been left to individual nations due to the lack of international tribunals.

In his concluding remarks Dr. Green pointed to several troubling aspects of international attempts to circumscribe the actions of individual soldiers. Foremost of these concerns is that there is no clear law governing internal wars of liberation and whether or not civil wars are struggles subject to international codes of conduct. Given that enforcing the law of war is often left up to individual nations, a danger exists that, in the wake of a civil war, successful rebels will turn war crimes trials into acts of vengeance hidden behind an international code of conduct concerning humanity.

In the panel discussion that followed, Dr. Dinstein seconded Green’s concern about the lack of law covering unconventional military conflict. Equally troublesome, according to Dinstein, is the fact that international tribunals have not effectively handled the distinction between an international conflict and a civil war and thus determined what is permissible and what is not in these struggles. Joining the discussion over jurisdiction, Yale’s Ruth Wedgwood urged that international courts, rather than being concerned with individual crimes–whether committed during multi?national or internal conflicts–should be reserved for massive, organized crimes.

Ruth Wedgwood, in her presentation “Current Controversies in the Law of War,” pointed to several troubling issues. Chief among these are the dangers involved when combatants disguise themselves as civilians and thus endanger the civilian population, the use of land mines, and the issue of who determines losses in warfare. In her remarks, Professor Wedgwood argued that a soldier disguised as a civilian should not be subject to summary execution since this practice endangers true civilians caught up in searches for guerrillas. Rather, we should treat captured guerrillas as prisoners of war with all the rights attaching to this status.

Professor Wedgwood=s arguments about captured guerrillas received considerable attention from Yoram Dinstein in the discussion that followed. While maintaining that distinctions between combatants and civilians are necessary and that we should do everything possible to draw this line clearly, Dinstein argued that Third World nations do not care about conventions regarding this matter and that abuses will continue in these states, much to the consternation of the developed world. As to Professor Wedgwood’s fear that land mines not removed after the end of a conflict will continue to kill and maim noncombatants and that we should therefore seek to limit their use, Dinstein again maintained that the Third World will not respect First World conventions on this matter. Agreeing with Wedgwood that mines should be either capable of self?destruction after a certain period or remain under the control of the forces laying them, Dinstein contended that Third World states are neither able to afford such sophisticated weaponry nor are they willing to give up weapons they can produce and use cheaply. As for prohibiting the use of land mines, should the First World prove willing to do this, there is no guarantee that underdeveloped nations would follow suit.

Professor Wedgwood’s remarks on determining the proportionality of losses, which she treated as a decision strongly influenced by politics, drew an equally lively response from Dinstein and from Colonel Terry, both of whom argued that losses in warfare must be determined by military leaders rather than politicians or lawyers. Although political leaders are understandably concerned with the scale of troop losses, proportionality must be tied to the target and how that target is linked to the end of the campaign. Colonel Terry repeatedly pointed out that the military’s determination of the size of forces to be used and selection of targets is consistently undertaken with a minimization of casualties in mind. Professor Wedgwood responded that as long as the Department of Defense remains under civilian control, political issues, such as proportionality, will continue to intrude into the military’s decisions.

Speaking on “Issues of Operational Law,” James Terry argued that current crises such as Somalia and Haiti have presented the United States with more opportunities to commit its forces and more challenges than ever before seen. While this situation results in part from the disappearance of the bipolar world and the need to intervene in areas formerly under the influence of the Soviet Union, much of our involvement in these regions is the result of a revitalized United Nations. Colonel Terry argued that if the United States is to secure a position of leadership in military and peacekeeping operations conducted by the newly energized United Nations, a number of conditions would have to be met. Foremost among these, argues Terry, is the need to ensure that participating countries send capable troops, both in terms of their armament and training. Not only should the troops offered be of the highest caliber, but, in accepting aid, the United Nations can afford to be far more selective than it has been previously. Equally important is the need to develop a creditable decision?making process that knows when to say no and admit failure. Without these reforms, the wedge driven between the President and Congress by failed United Nations operations will only continue to widen.

Despite failures such as Somalia, there have been successes, the most notable of which were the interventions in Haiti and Kuwait during the fall of 1994. The movement into Kuwait last September proved not only that the United States was capable and committed, but that timely reactions to halt possible aggression are critical and that maintaining regional coalitions are essential to success. At the same time, Haiti provided evidence of the U.S. commitment to ensure that there is a realistic end point to U.N.-sponsored military actions.

Agreeing with Terry that U. S. leadership is crucial to the success of a United Nations sponsored operation, John Norton Moore argued in the panel discussion that a re?invigorated U. N. is a promising tool in war avoidance. To make it effective, it is necessary to have a clear picture of the United Nation’s role in deterrence, and to make the U. N. more involved in the pre?commitment of military forces and more selective as to where to intervene. Moore agrees with Terry that a timely reaction is crucial to winning and, once committed, the United Nations should strive to win quickly (a point that received further support from Yoram Dinstein).

Further support for Terry’s argument came from Leslie Green, who seconded the use of the right forces as peacekeepers. Referring to the failed Somali intervention, Green urged that we make sure that the peacekeepers are carefully schooled in the culture of the country to which they will be sent. Additional cautions were added by Ruth Wedgwood, who strongly suggested that future peacekeeping operations would be unsuccessful unless prior plans exist for multi?national forces. As no planning body currently exists within the U. N. to handle this task, Wedgwood argued that these plans should be drawn up by the United States.

Closing the conference, Yoram Dinstein spoke on “The Legal Lessons of the Gulf War.” Reminding his audience that major wars serve not only as a crucible for laws devised during peacetime, but also create new laws governing areas that previously had not received much attention, Professor Dinstein proceeded to discuss several lessons learned from the Gulf War. The first hurdle overcome was the determination by the United Nations that a “threat to the peace” existed in sense set out in the Security Council’s charter. This seemingly easy task was complicated by the charter’s sketchy definition of such a threat. Having decided that a threat did indeed exist, the Security Council proceeded cautiously and imposed economic sanctions backed with a naval blockade against Iraq. As events unfolded, the classic model of a clearly delineated blockade would change as Iraqi ships began using Jordanian Red Sea ports. Faced with this evasion of the sanctions, the Security Council turned the blockade into a worldwide net that included the closure of the neutral Jordanian port of Aqaba.

Not only did the Gulf War challenge the U.N.’s definition of a blockade, it also tested the belief that the nation attacked should have the right to determine how far a war of self?defense can be carried. In this case, the United States rather than Kuwait decided when to halt the Gulf War. Yet for all its challenges to conventions drawn up in time of peace, the Gulf War did affirm the wisdom of the U. N.’s Article 51, which allows other nations to come to the aid of the country under attack should the Security Council issue a call for collective self?defense. In reviewing this point, Dinstein cautioned his listeners that the United States cannot become the world’s policeman and should exercise restraint, since Article 51 expressly prohibits the unilateral use of force.

Professor Dinstein’s contention that, contrary to U.N. Resolutions 660 and 678, the United States?led forces could have pressed their offensive to Baghdad sparked spirited discussion from the panel. Both James Terry and Leslie Green argued that the U.S. was hamstrung by these resolutions and was forced to halt after liberating Kuwait, a position adamantly rejected by Dinstein. Additional discussion focused on the weakness of economic sanctions. During his presentation, while reviewing the steps taken against Iraq, Dinstein had alluded to the restraints imposed against Southern Rhodesia, noting that, after thirteen years, these restrictions provided the world with its only successful case of economic sanctions. John Norton Moore echoed Dinstein’s skepticism about economic sanctions, asserting that they are hardly worth pursuing without some credible accompanying threat of force.

Joshua McKaughan, Rapporteur.