|Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)|
|The Laws of War: Problems of Implementation in Contemporary Conflicts|
|IV. General Issues|
The question of whether non-belligerent states should take an active role in seeing to the implementation of treaty-based humanitarian rules is not a new one. Countless such issues arose in two world wars. Such a case arose in August 1914, when the Counselor for the US State Department raised with the Secretary of State the question of whether, in view of the bombardment of Antwerp by a German military balloon, the United States should make a formal protest. He prepared two possible drafts, the first on the limited ground of endangering the lives of American citizens, and the second on the general ground of a violation of 1907 Hague Convention IV:
"The other draft based on the general ground of violation of the usages of civilized warfare would undoubtedly accord with the almost universal indignation expressed by the press of this country, which I believe in this case represents general public opinion. However strong may be the inclination to express abhorrence of such deeds, if we begin to make protests general in nature as to violations of civilized and humane methods of slaughter where are we going to stop"?
One week later President Wilson made a clear decision on this issue:
"My Dear Mr. Secretary:
I have thought a great deal about the matter of protest with regard to the dropping of the bombs and my present judgment is that we do not know in sufficient detail the actual facts and that we ought to be very slow to make formal protests, chiefly because we shall no doubt be called upon by every one of the belligerents before the fighting is over to do something of this kind and would be in danger of becoming chronic critics of what was going forward. I think the time for clearing up all these matters will come when the war is over and the nations gather in sober counsel again.
Cordially and faithfully yours, Woodrow Wilson"
Such an approach, largely influenced by the US anxiety to remain neutral, was hard to justify then, and would be hard to justify today. Yet the sense that making general protests about violations of the laws of war could be a difficult and complex business, full of pitfalls, and easier to start than stop, still rings true today.
A possible weakness of Woodrow Wilson's response is his assumption that when a war is over, matters relating to the laws of war can be cleared up: frequently they are quietly dropped as part of a settlement. Amnesties and waiving of legal claims are still very much part of statecraft. Thus in 1990, when the UK and Argentina restored full diplomatic relations, they dropped all claims between the two arising out of the 1982 Falklands War. In the Russian Federation in 1995, the negotiation of military and political agreements over Chechnya necessitated the Russians dropping their previous call for the arrest of the Chechen leader Dzhokar Dudayev.