“In times of war, the law falls silent”
UN Security Council Chamber in New York City.
Throughout the history of humanity, and all around the globe, civilizations have always oscillated between periods of peaceful prosperity and between darker times, often characterized by war as a main factor entailing the collapse of the social order or of the economic and political structures in place at the time. War, as the ultimate act of obtaining the object of ones interest, was approached in a consequentialist perspective. At least, Hugo Grotius, in his famous essay On the laws of war and peace published in 1625, argued that “in war, all things necessary to the ends are lawful”[1]. Supposedly, nothing except the strict natural reason of the individuals was ruling the way wars were conducted, and all means, even the most atrocious ones, were tolerated as long as they would have contributed to end a conflict. How have things evolved? Since the end of the 19th century, a new body of law, the international humanitarian law, has emerged. Its primary purpose is to provide a legal framework to regulate the conduct of the armed conflicts[2]. The international humanitarian law is mostly codified in one major series of convention, the “Geneva Conventions”, respectively binding for 195 countries, and its two additional protocols, binding for 170 and 165 countries. These legal bases constitute the mains rules on the protection of civilians in times of war and in the restriction of the means and methods of warfare[3].
Our modern society is endowed with that dense legal framework, but is this latter really followed and applied? Is it practically and reasonably applicable? With regards to contemporary examples such as the war on terrorism and its implications or the use of chemical weapons in Syria, the purpose of this essay will be to acknowledge the fact that “in times of war, the law falls silent”, assertion that I mostly agree with. I will firstly establish and demonstrate that, in its infamous “war on terrorism”, the government of the United States of America have violated international human rights several times, especially considering the treatment endured by the prisoners of war (POW) in the Guantanamo bay detention camp but also by focusing on the “drone war” in Pakistan and its consequences on the civilian population. Secondly, I will try to counterbalance my previous conclusion by showing that even if the existing legal framework is not always applied or is often interpreted in some ways to circumvent it, the recent case of Syria and the dismantling of the Syrian government chemical arsenal still provide a concrete example of the application and enforcement of international humanitarian law.
Shortly following the terrorist attacks which struck the United States of America on the 11 September 2001, the Congress voted a law baptised “Patriot Act” during the month following these tragic events. This new set of rules provided a wide range of “legal tools” justifying things such as solitary confinement or the creation of the status of “unlawful combatant”[4]. I will personally argue that this excessive reaction constituted, in regard with the idea that the law falls silent in times of war, a breach of not only the Geneva Conventions, but also of the UN Convention against torture and other cruel, inhuman or degrading treatment or punishment. In fact, it is this legal basis that justifies the current treatment inflicted in Guantanamo Bay detention camp on the so called “unlawful combatants”, whose legal status is elaborated by military tribunals and does not make them officially prisoners of war and consequently does not include them neither in the category of “combatant” nor in the one of the “Non-combatants” established in the articles three and four of the third Geneva convention [5]. In this particular case, the government decided to create a separate legal basis, but in some other cases, judges and international lawyers simply interpreted the existing conventions arbitrarily. This happened for example with the previously mentioned UN convention against torture, for which the United States of America elaborated numbers of reservations based on their own interpretation of the convention, narrowing for example the definition of torture. Another concrete example of the reinterpretation of the law following the interests of the state in times of war would be the “US policy standard and procedures for use of force in counter-terrorism”, in which the customary international humanitarian law rules 11, 14 and 70 elaborated by the International Committee of the Red Cross have been minimally narrowed in order to justify drones strikes with the “near certainty that no non-combatants will not be injured or killed”[6]. Moreover, some claims that the current Obama administration is engaged in an “Orwellian contortion of language, which assumes that anyone in the area of a drone strike must be “up to no good” and therefore a militant”[7].
In short, Martti Koskenniemi was right when telling in his book From apology to utopia that “international law is what international lawyers make of it”. I argue that this point of view is particularly relevant in times of war, and as I tried to show above, the application of international humanitarian law is always controversial and representative of the crystallization of national interests, making its application sometimes utopic and almost impossible in some cases.
However, the recent denunciation and dismantling of the Syrian government’s chemical weapons arsenal might appear as a glimmer of hope for the enforcement of international humanitarian law. In fact, after Russia’s persistent veto against any intervention from the UN Security Council in the “Syrian case”, the permanent member of this latter, in partnership with the Organisation for the prohibition of chemical weapons, finally reached an agreement on the 14th September 2013[8]. Approximately one year later, the major part of the Syrian arsenal was destroyed[9]. Regarding the fact that, as Harold Hongju Koh underlined, the Syrian government was deliberately and indiscriminately using chemical weapons against civilians in a way that was threatening a century-old ban[10], this accord appears to me as crucial for the restrictions of means and methods of warfare but also for the protection of civilians, often seen as collateral damages. Using chemical weapons might appear an interesting solution for modern armies, especially regarding their psychological impact and their efficacy, but it seems to be that, broadly speaking, a major part of the world has now accepted that the military necessities were not permitting everything, and that some limits were not to be crossed.
To sum up, I will briefly reintroduce the two main points of this essay which central purpose was to elaborate whether or not “in times of war, the law falls silent”. Firstly, the war on terror, the justification of the use of torture and the repetition of approximated drone strikes in Pakistan constitutes a violation of both the Geneva Conventions and the customary international humanitarian law rules established by the International Committee of the Red Cross. The U.S had adopted a “the end justify the means” policy which overpasses the current “jus in bello” rules, and even if my aim is not to make the trial of this particular country, I simply underline that its hegemonic position, its veto right in the U.N. security council and its great power statutes render it nearly invulnerable to any international sanctions for these numerous controversies. Secondly, even if my previous conclusion seems to be pessimistic, the recent example of the dismantling of the Syrian chemical weapons arsenal has shown that humanity and law still had its place in the modern asymmetrical armed conflicts.
In conclusion, I argue that international humanitarian law might be one of the greatest creations of the 20th century, but in trying to shape the behaviour of human individuals and their reason in times of war, its purpose becomes so arduous to put into practice that it often does fall silent…
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Etienne Vioget (UNIL – Université de Lausanne)
Written as part of an evaluation during the 2015 London School of Economics Summer School course International Law: contemporary issues.
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SOURCES (chronologically organised)
[1] Hugo Grotius, On the laws of war and peace, Book 3: chapter 1, 1625
[2] Malcolm D. Evans (Ed), International Law (4th Ed, 2014), pp. 821
[3] INTERNATIONAL COMITTEE OF THE RED CROSS, Status of the protocols additional to the Geneva conventions: ICRC statement to the united nations, 2010, https://www.icrc.org/eng/resources/documents/statement/united-nations-protocols-additional-statement-2010-10-18.htm, page consulted the 08.08.2015
[4] Ignacio Ramonet, “Antiterrorisme”, Le Monde diplomatique, March 2004
[5] BBC NEWS, Q&A: Geneva and the war on terror, http://news.bbc.co.uk/1/hi/world/americas/4879942.stm, page consulted the 09.08.2015
[6] OFFICE OF THE PRESS SECRETARY, Fact sheet: U.S policy standards and procedures for the use of force in counterterrorism operations outside the united states and areas of actives hostilities, https://www.whitehouse.gov/the-press-office/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism, page consulted the 09.08.2015
[7] Michael Boyle, « Obama’s Drone Wars and the Normalization of Extrajudicial Murder », The Guardian, 11 June 2012
[8] BBC NEWS, Q&A: Syria chemical weapons disarmament deal, http://www.bbc.co.uk/news/world-middle-east-23876085, page consulted the 09.08.2015
[9] Bendavid Naftali, « Removal of Chemical Weapons From Syria Is Completed », The Wall Street Journal, 23 June 2014
[10] Harold Koh, “Syria and the Law of Humanitarian Intervention: Part 2”, 02.10.2013