IHL in Perspective: Kriegsraison vs. Humanitarian Feelings?

In 405 BC, during the Peloponnesian war, the Spartan admiral Lysander attacks the strategic city of Lampsacus. His forces manage to capture three thousand enemy fighters, Athenians and allied forces – including the Athenian General Philocles – in the legendary Battle of Aegospotami, thus effectively bringing to a close “a war which, in length, and the incredible variety of its incidents and fortunes, surpassed all its predecessors”.¹

Lysander gathers the allies in an assembly and asks them to deliberate on how the prisoners should be treated. Since the Athenians had decreed to cut off the right hand of every man taken alive – and upon the orders of Philocles himself, had thrown overboard the crews of two triremes captured in combat – the Spartans are clearly not well-disposed to humane treatment. Probably tired of what must have appeared an endless conflict, and upon hearing many other stories of Athenian atrocities, the assembly resolves to put to death all prisoners. As to Philocles, Lysander first asks him what he deserves to suffer for having prompted barbarous practices towards other Greeks, and then has his throat slit.

Plutarch suggests that the assembly declaring the Athenians guilty should be understood as a sort of tribunal, and he reports that the Athenian prisoner of war was actually asked, “what punishment he thought he deserved for having advised his fellow-countrymen to treat the Greeks so outrageously”. Before being led to his execution, Philocles despondently advises Lysander not to play the prosecutor in a case where there was no judge.²

In the early hours of 1 November 1911, Giulio Gavotti, a 29-year old Italian lieutenant stationed in Libya during the Italian-Turkish war, flies off towards the oasis of Ain Zara on his Etrich Taube monoplane aircraft. He is determined, as he intimates in a letter to his father, to make history. When he is about one kilometre from his objective, he spots two encampments, which he describes as “Arab tents”. While still controlling the craft with one hand, Gavotti pulls out a leather box, unties the knot securing its lid, and carefully pulls out one orange-sized bomb, placing it on his lap. Having triggered the detonator, he throws the bomb outside the airplane with his right hand just before reaching the two camps, aiming at the bigger of the two. He follows the trajectory for a few seconds. The bomb disappears and Gavotti finally sees a darkish puff in the midst of the smaller camp. He carries out two more strikes with as many explosive devices, with no discernible additional effect. Content with having achieved his objective, he flies back, thus bringing to a close the first airplane bombing in human history.³ Guernica, Coventry, Hamburg, and Hiroshima would follow.

The “trial” of Philocles has been followed throughout history by countless attempts to secure punishment for individuals involved in breaches of the standards and laws related to armed conflict and to humanitarian protection – from Peter von Hagenbach and Napoleon Bonaparte pertubateur du repos du monde to Henry Wirtz, Harry “Breaker” Morant, Hermann Goering, William Calley, Ratko Mladić, Charles Taylor and many others. Gavotti’s “historical” deeds, needless to say, were never considered for punishment. It is maybe only in the last seventy years – or perhaps just since Antonio Cassese presided over the Tadić Jurisdiction Decision for the ICTY Appeals Chamber in 1995 – that we have attempted to answer the question impulsively but poignantly posed by Philocles at the end of the fifth century BC: what is the basis for the right to adjudicate violations of the laws of war by others?

Principle of distinction; targeting and conduct of hostilities; treatment of those hors de combat and punishment for serious violations of the laws of war: areas (under-)regulated over the past centuries with the results we constantly witness, leaving us often disheartened.

The law of war and, even before that, the ethics of how to wage war and react to violations appear to be intrinsic deep-seated needs of most of humankind, somehow counterbalancing the impulse to exploit ingenuity and technical knowledge to gain military advantage. Several other factors are at play, of course, and in a world where combatants, civilians, and terrorists vie for the attention of the public, and increasingly of lawyers, States and other groups often put forward diverging interests and views, and therefore do not aspire to clear and practical concepts.

While discussions on the origins and development of IHL remain current, a consistent theme through the centuries is the tension inherent in establishing rules aimed at regulating the ever-evolving ability to inflict harm and suffering on fellow humans: technological advance pursued through incalculable resources poured into the development of warfare is to be governed by constantly aging principles and rules. Although it might not be completely accurate to state that the law of war is always one generation late in respect of novel technologies and new brands of warfare, from indiscriminate bombings to suicide bombers, the constant question is: what exactly should be regulated, and how? If even a small truck or a suicide vest can be lethal weapons that “explode the limits of the law”,⁴ how are we to regulate such violations?

Such questions become even more pressing with the advent of autonomous weapons and cyber-warfare, both in relation to “pure” cyberwar, and in its interaction with more traditional conflict mechanics. What happens, for instance, in terms of the regime applicable to the shipwrecked under Geneva Convention II following a cyber-virus disabling the warship, or in relation to collateral casualties due to jamming GPS signals, or – again – in terms of the responsibilities towards persons in occupied territories if their well-being (such as access to water and food) is left to completely automated mechanisms? How do internationally recognized protective emblems apply to cyberspace, for instance to servers of hospitals and of other critical civilian or cultural institutions? How is one to track and determine criminal responsibility? And, when considering breaches: how much value should courts and tribunals assign to open-source material gathered through the internet or to electronically generated conclusions?⁵

Frictions and doubts on the battlefield and in the offices of policy-makers do not stem – as is often assumed – from a clear-cut juxtaposition between a cold, rational mind striving for concessions in favour of military necessity on the one side, and warm, irrational feelings and lofty, protective principles on the other. In March 1945, Winston Churchill wrote a surprisingly honest text (which he, however, officially withdrew a few days later, replacing it with milder words):

[i]t seems to me that the moment has come when the question of bombing the German cities simply for the sake of increasing the terror, though under other pretexts, should be reviewed. Otherwise, we shall come into control of an utterly ruined land. […] The destruction of Dresden remains a serious query against the conduct of Allied bombing. […] I feel the need for more precise concentration upon military objectives, such as oil and communications behind the immediate battle-zone, rather than on mere acts of terror and wanton destruction, however impressive.⁶

Considerations of strategic relevance, in the broadest sense, at times inspire moderation from (increasingly) needless acts of violence, while various irrational pressures, stemming from sentiments of vengeance and self-righteousness or even from the perceived need to appease a tired or anxious public, can instead choke restraint and fuel brutality. Rational thinking may often lead to a considered decision that actually respects the rules of warfare – though, of course, this is not always the case. Public moods or ill-formed advice not grounded in facts and dispassionate analysis, on the contrary, may persuade decision-makers to pursue acts of violence that fall beyond the realm of what is lawful and proper (while, again, public sentiments and expert advice can instead prompt vastly different actions in other circumstances).

It is thus important to escape the false dichotomy of a Kriegsraison supposedly by definition in conflict with aspirational humanitarian feelings. The tensions in this context are much more complex and heterogeneous than our instincts may suggest, and trying to artificially simplify them is misleading.

Lex Lata vs Lex Ferenda: Back to the Future with the Martens Clause?

Where do the elucubrations by scholars and lawyers leave us? This volume provides a vast panoply of research and reflections that is valuable, arguably indispensable, for practitioners and academics alike. The editors have courageously chosen to tackle an array of topics covering substantive, procedural, and more abstract issues. Several of these entries show the challenges faced by IHL, and the significance of international judicial institutions being parts of a wider system that is having a significant impact on IHL as applied by military and civilian actors around the world, both at the policy level and “on the ground”. Others explore the ever-expanding contours of IHL, with, for instance, cyber-warfare and the growing preoccupation with environmental protection in times of armed conflict. Permeating these themes is the continued – and increasing – need for training in IHL, which, even amidst some resistance, fosters behavioural changes and reinforces the prohibition of certain types of conduct, together with continued ICRC vigilance as well as IHL enforcement by international, regional, hybrid, and domestic institutions.

In a mere couple of decades, a major shift has occurred in international relations and public opinion: when grave crimes are reported – as they more and more often are, in this age of information and 24/7 news cycles – one of the questions cried out is when and how can the suspects be brought to justice. We are witnessing a slow but decisive change in ethos: the assumption that serious violations of IHL ought to be at least investigated (with the aim of identifying perpetrators) by a growing network of domestic and supranational institutions.⁷ Such a belief is, all considering, a rather novel one, a notion that has not traditionally accompanied conflicts and violence in the past but which is, instead, taking vigorous root today due to the multifaceted – and still fragile – developments since the end of the Cold War. The accountability of States, groups, and individuals for violations thus becomes not merely part of the international discourse, but is expected to be consistently upheld in practice, on the battlefield, as well as in the offices far away from the field where policies are devised, implemented, and litigated.

Not all, of course, is well in IHL development and enforcement. The tensions highlighted above and the tortuous historical paths that led us to the current stage of (under-)development of IHL, leave us here, with a lex lata that is deficient, constantly criticized, and manipulated, yet which nevertheless survives at the delicate intersection with war, human rights, law enforcement, and other areas. And with a strong pull for a persistent improvement of the plight of victims de lege ferenda, which on occasion enables certain actors – and at times single individuals – to expand protections and ensure some degree of certainty, while contending with pushbacks, doubts, and criticisms. We are increasingly hearing not just the plights of Lysander and Philocles, in other words, but also those of the victims, their families, and their communities, and the developing law should reflect this new ability to listen, and build upon, a diverse set of voices.

Such reflections on the changing face of war and the applicable law make us therefore increasingly aware of the dire need to provide a modern reading and maybe a partially new significance to the all-important – though at times much maligned – Martens clause. The “principles of humanity” and the “dictates of public conscience”, which are applicable even when positive law has not yet “caught up” with new developments, require some deep reflection, a veritable soul-searching, within the international community, especially at a time of momentous changes in technology and ethos. Such soul-searching may be particularly challenging at a time when not only objective realities are often disputed by “alternate facts”, but also when wide differences of perspective and worldviews threaten the very notion that humankind ultimately does possess common principles of humanity and a recognizable shared public conscience. After all, if States, non-State actors, NGOs, individuals, and other relevant actors are unable to agree on common and shared values, then IHL, which relies heavily on opinio juris and on a shared resolve to adhere to humanitarian protection standards, may be in danger of losing its ability to foster compliance and increase its effectiveness. IHL’s universal application is – must be – premised on some degree of common understanding in relation to the values and rules applicable to armed conflicts, and the ideals espoused by Martens in his formulation starkly illustrate that the IHL edifice, if it is to withstand, ought to be built on shared foundations.

However one interprets the Martens clause, a fundamental question is how we understand, in a post-modern, splintered world, the expressions “humanity” and “public conscience”, for these are the foundations of any meaningful discourse on the protections due in all cases that are not explicitly covered by positive law. Humanitarian consciousness must be furthered even more carefully in a divided, yet connected, world.⁸ There are no easy solutions to this conundrum, but one can envision ways in which modern participatory trends and technology may be harnessed to achieve a better, more comprehensive and open “inclusive process of deliberation conducted at multiple levels in as broad a community as possible”⁹ to implement this exercise of human intellect in moral and legal argument.

Technology is often considered a risk to compliance with IHL because of the law’s struggle to keep up and match the former’s unforeseen (and unforeseeable) developments for strategy, tactics, yield, and striking capacity. However, new tools offered by technology should not be conceptualized always and necessarily as a risk, but also as a means to make us better able to truly listen to various voices and to enrich and improve our deliberative process. There are voices suggesting the use of modern technology to promote a better understanding of the needs and experiences coming from the whole network of subjects touched by armed conflict, so as to minimize the deficit of contribution to the laws of war (in a broad sense) from those who are often the most affected by conflicts. In fact, information networks and the admittedly primitive attempts to foster grass-roots movements through communication technologies, together with the ability to exchange information almost anywhere in the world, can provide a basis for comprehensive and inclusive debates on how to nurture a true conscience of humankind, at least in some areas. Technology could assist in developing a more shared appreciation of cultural diversity’s impact on the common understanding of the terms “humanity”, in both its connotations of “humankind” and “humanness”.¹⁰

A resolve to undertake such an attempt to ensure a proper deliberative process that is honestly participatory, and not manipulative, would go a long way towards dispelling the worst reservations about new technologies and challenges, giving new hope to these concepts. There are undoubtedly a lack of political will, ingrained old habits on how international law develops, and long-standing practices and prejudices vis-à-vis non-State actors’ contributions to the development of the common law of humankind – not to mention recent biases against international law as a whole. Such impediments make it hard to create a potent counter-narrative in defence of civilians and other protected interests. However, a widening participatory process to establish and interpret the rules and the laws of war might be one means of fighting against the dilution of humanitarian consciousness and mustering stronger political resolve to ensure compliance as well as interpretative tools that constantly adapt so that the existing framework still makes sense in the face of technological and other developments.

Indeed, if the front is truly nowadays “everywhere and nowhere at the same time”, and “war is both omnipresent and absent”,¹¹ then what we need is an ever-present and pervasive conscience of humankind to assess and evaluate every damaged home, all remotely operated weapons, each decision to strike at the hearth of the enemy with “shock and awe”, every war-hospital casualty, every bridge targeted. In a world where traditional Western dominance and influence are gradually losing ground, it seems all the more important to establish an inclusive and structured forum for constructive debate and to achieve consensus on the ground rules and principles, leading the way to the future. Binding future generations to an inclusive deliberative process on how the Martens clause and its corollaries should be interpreted in the face of evolving technologies might yield positive results that are simply not achievable only through traditional inter-governmental negotiations and judicial determinations.

Good will is not sufficient; knowledge is key – and shared knowledge even more important. A more dynamic and responsive understanding starts with knowledge of IHL, and – in a sense – is characterized by how we define ourselves in relation to IHL and other areas of both law and ethics linked to the use of force.