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close this bookLaw in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)
close this folderThe Laws of War: Problems of Implementation in Contemporary Conflicts
close this folderIV. General Issues
View the document1. Woodrow Wilson's Dilemma in 1914
View the document2. Successors' Responses to illegal Acts of Previous Regimes
View the document3. One Alternative Vision

1. Woodrow Wilson's Dilemma in 1914

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.

2. Successors' Responses to illegal Acts of Previous Regimes

The ways in which violations of fundamental norms in many internal situations are handled, including by successor regimes, illustrates the complexity of the whole subject of enforcement. Sometimes such violations lead to judicial processes, but often they do not.

Terrible crimes occurred in South Africa in the apartheid years, and in many South American states in the 1970s, and Ethiopia in the 1980s. In these countries, successor regimes have taken very different approaches to the question of whether to prosecute. Decisions not to do so are naturally contested, but they reflect some serious considerations: that it is hard to pinpoint individual responsibility and invidious to select out a few for trial; that there were some mitigating circumstances at the time; that the quiescence or positive co-operation of those with overall political responsibility for the offences may be needed if the successor regime is to survive; that those who have lost power, privileges or jobs are perceived by the public to have suffered enough already; or that trials might reopen old wounds.

Similar considerations frequently apply as regards violations of the laws of war, m conflicts between as well as within countries. Decisions to prosecute, or not to prosecute, are frequently the outcome of complex political processes and calculations. We are very far from anything approaching a system where it can be taken for granted that offences will be the subject of trials.

3. One Alternative Vision

There are some grounds for scepticism about the idea that international bodies can apply a criminal law analogy to major violations of international norms. The idea that acts deemed to be crimes can and should be tried and punished in courts is a feature of all national legal systems, but its application on the international plane, as a means of enforcing the laws of war, is problematic. This is not to say that such efforts should not be made, but rather than they should not be seen as the sole or even principal means of implementation. Events in some major conflicts of the past two decades confirm the difficulties of the criminal law approach.

One might well therefore ask: What is the point in international norms, including the laws of war, if there cannot be a vigorous and consistent effort at international enforcement? Alfred Rubin has expressed one alternative vision of what the law is and how it may be implemented:

"International law is not a criminal law system; it is more akin to constitutional law, where enforcement rests on political counterpressures and foreseeable middle- and long-term reactions. A militarily organized movement that commits atrocities is likely to lose allies, unify its enemies, waste its energy in daring strikes of dubious military or political value, and ultimately turn on itself".

While this view of law may itself be tinged with too much optimism, it does highlight the truth that the means by which international norms are upheld are far more complex and wide-ranging than what is provided for in the conventions.