The Laws of War: Are they in Jeopardy?

I have been grappling with the issue of the ‘laws of war’ for nearly two decades, when I first began my studies and wrote a paper on the ‘Democratization of the Laws of War,’ and somewhat unwittingly anticipated the chaos of international conflict. At the time I was a young grad student with very little real world experience, so it comes as a complete surprise that the (I assumed) over the top conclusion to my paper is playing out in my lifetime. A flashback:

‘It is in the interests of democracies to ensure that their international legal order is not challenged, that warfare does not become so prolific that it undermines the essential component of Section VII of the UN Charter outlawing war. Should this happen, it is most likely that a realization of the inadequacy of the rules pertaining to warfare will land in the spotlight. As Lauchterpacht (1952) wrote, “if international law is … the vanishing point of law, the law of war is even more conspicuously the vanishing point of international law.”

Democracies and their ability to extend their influence into the shaping of the international sphere have not changed how war is fought – the means will always remain in the hands of the combatants themselves – but have changed how war is viewed, and for what purposes war is fought. This has not been translated into the laws of war, but are inherently understood in them – it was in the interest of their survival that states ‘created’ these laws, and as such will always be interpreted in such a way as to serve their interests and preserve their legitimacy.’

Western democracies drafted the Geneva and Hague conventions, and as they dictated international relations at that time, their laws ruled. They would become the norm which other states were expected to follow (at least in terms of inter-state conflict, blind eyes constantly being turned away from the internal actions of non-democratic states). Helpfully, the Hague and Geneva Conventions had their roots (very likely unknowingly) in Islamic law. Yes, many will be surprised by this. However, anyone who has taken time to learn about Islam knows that at its heart it is a religion of compassion. It is therefore unsurprising, although very interesting, that more than a millennium before the codification of the Geneva Conventions, most of the fundamental categories of protection which the Conventions offer could be found, in a basic form, in Islamic teachings. Islamic norms emphasize restraint and stress the importance of not doing more harm than is necessary to accomplish the goal at hand. You can read more about this in an excellent series of essays by Heba Aly here.

So, despite what global media and unnamed public figures may have you believe, the teachings of Islam and Western liberal democracy are not fundamentally in conflict when it comes to norms in warfare. Thus, we should not look to the ‘East-West’ confrontation as the source of the increasing disregard for the laws of war (on both sides, frankly), but to something else.

‘Norms, especially global norms, are exceedingly fragile things. The more players who conform to a norm, the stronger it gets. The more players who flout it, disregard it, will see it begin to lose that ever so subtle effect on the mind that is the basis of its power. When a norm is flouted and consequences do not follow, the norm begins to die.’ (Sina Odugbemi, “Authoritarianism Goes Global: the Rise of the Despots and their Apologists“)

I believe that accurately and succinctly sums its up. Authoritarianism is on the rise across the globe, whether in Eastern Europe or Southeast Asia, with hints of it in the US and Australia in relation to the impunity among public officials’ oratory and actions, and a disregard for human rights and the flouting of international conventions on such, respectively. According to CIVICUS, in 2015, significant violations of civic space were recorded in over 100 countries, up from 96 in 2014. People living in these countries account for roughly 86% of the world’s population. This means that 6 out of 7 people live in states where their basic rights to freedom of association, peaceful assembly and expression are being curtailed or denied. No single region stands out; truly, this is a worldwide trend, a global clampdown.

Why is authoritarianism on the rise? There are many reasons, but very likely at the heart (although I am not an expert on this issue) is the pursuit of power, greed and pervasive inequality (not just in terms of incomes but in terms of opportunity, respect and rights). Thus, global ‘norms’ are increasingly reinterpreted or ignored outright depending on need, and there is a general feeling among the public that chaos is beginning to reign. As I noted in my original essay on the subject some 15 years ago, the states who drafted these laws and promoted and enforced these norms need them to be adhered to in order to legitimately claim global moral leadership. Without these norms, their leadership is in jeopardy. Which is why we see so much discussion and lobbying around the need to work harder to reinforce and apply the Hague and Geneva conventions, despite the unbelievably challenging contexts in which this is supposed to happen. Western leaders are trying to apply the conventions to conflicts and war whose nature and dynamics could not possibly have been understood or even envisioned through the prism of Anglo-Saxon thought a century ago.

The process can even seem futile to some. The most poignant statement came from a refugee from Syria, “Syria is a war without law.” This is the truth, and the reality of the precariousness of the global norms on conflict and war.

So, is the norm failing?

I would not go so far to say that it is. I would say that it is in jeopardy, but the situation is a complex one. It is not an issue of black or white. The ideas which underpin the conventions and norms are still wholeheartedly embraced by the general public globally. There are those leaders who pay lip service to it, and those actors who would spin it to suit their needs. There are indeed psychopaths terrorizing the people who live in conflict countries, and who still terrorize those in post-conflict countries. There are those who still fight in line with the conventions, and those that have never even heard of them. There are those in leadership positions who would turn a blind eye, and others who encourage brutality as a way to demonstrate ‘who’s in charge.’

If we refer back to the story of the Syrian refugee, above, the most important take away is that people know what is right and what is wrong when it comes to war. It does not take much to terrorize people by completely disregarding norms we have generally come to expect as a given. In fact, it doesn’t take many people to do so. Kim Jong Un is one person. Riek Machar is one person. Hitler was one person. If leaders don’t disregard norms, their followers do not either. On the whole, there are not so many people disregarding the norms and Conventions. The problem is that those people have followers who they entice to do so. The bigger problem is that there always will be leaders like that, and people willing to follow them.

In theory, the laws of wars still exist. In practice, the have to continue to exist wherever possible. There is no viable alternative (or, rather, no viable alternative has been presented), and the world simply cannot exist in an environment of chaos and brutality. Wherever possible, actions in conflict or in regards to conflict must lead by example. Some examples of this can be read here. Whether as a civilian or elected official, or anyone in between, unless you can provide a viable alternative to the existing norms, however precarious they currently are, morally, there is no other choice. Unless you want to risk the consequences.

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