Benjamin Franklin, in a letter to Jean-Baptiste Le Roy in 1789, said: “Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”
The phrase “nothing is certain except death and taxes” has endured, but I wonder why he didn’t also add “war”?
Wars have been reported for as long as memory has been recorded. There’s literally no time in recorded history when there hasn’t been a war between neighboring countries, tribes, or cities. Biblical wars are a huge part of the Old Testament.
Wars have served to define entire centuries and had the effect of altering the course of human history and national or regional borders in significant ways. The map of Europe over the centuries illustrates the consequences of invasions and wars including, perhaps most notably, the fall of the Roman Empire or the Moorish invasion of southern Europe.
No doubt because of the barbarity of war, even in the earliest historical records, there have been instances noted where efforts were made to create a structure for war and its conduct. In the Code of Hammurabi, King Hammurabi laid out a code of conduct for war: “I prescribe these laws so that the strong do not oppress the weak.”
Both the Bible and the Koran contain provisions for the conduct of war in a manner that protects noncombatants and the losing side. Deuteronomy 20:19-20 provides that no more trees should be cut down as would be needed for the conduct of a siege. Fruit trees were not to be cut down at all.
Christian writers, such as St. Augustine, have struggled with the idea of war and have found a way to provide support only for a “just” war. The result of St. Augustine’s early thinking and writing on the topic led the Roman Catholic Church to promulgate thoughts on how to define a “just war” and how to limit and restrict the impact on the lives and property of those not engaged in the fighting.
It wasn’t until the consequences of so-called modern warfare came into existence during the American Civil War did it occur to the leaders of the civilized world that they should actually start drafting and implementation of modern treaties on rules of war.
The first Geneva Convention came into existence in 1864, and it has served as the baseline document for the general topic of “humanitarian law.” Geoffrey Best, an English historian best known for his works on Winston Churchill during the World War II, considered the period from 1856 to 1909 as the “epoch of highest repute.”
During that time, positive legal or legislative foundational documents established the rules of open warfare, replacing prior religious provisions or “custom and practice” rules that were simply to be “understood” by the combatants. The laws of chivalry, for example, fell into the latter category.
When General William Tecumseh Sherman uttered the famous line that “War is hell,” he was speaking from firsthand observations of the barbarity and unrelenting chaos of war. Colin Powell, serving as U.S. secretary of state, said: “Hell can be defined simply as the furthest away you can get from what is good and right, the furthest away you can get from God; war is hell because whether we succeed or fail in our military objective, everybody finally loses a lot, even those who live through it.”
For those of you who’ve been involved in a war, declared or undeclared, as well as for those of you who haven’t been so engaged, the whole idea of having rules to govern something so inherently lawless and barbarous as war seems a patent absurdity.
However, from the beginning, there have been a number of underlying principles guiding the development of the rules of war:
Also, there should be:
Over the years, numerous national and international organizations have attempted to raise issues that have resulted in treaties covering various aspects of the war scenario, collectively identified as international humanitarian law. The Geneva Conventions and their various additions, supplements, and amendments may be the most often noted, but there are many others.
The Hague Convention, the Red Cross, and the Red Crescent have established rules of war, and are all fairly well known. But there are literally dozens of pacts that address more- or less-specific issues. A few examples include the Washington Naval Treaty of 1922, the Kellogg-Briand Pact of 1928, the League of Nations 1938 declaration for the Protection of Civilian Populations Against Bombing From the Air in Case of War, and the International Court of Justice’s 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons.
The United Nations alone has more than 30 separate “conventions” addressing everything from the use of “blinding laser weapons” to the use of “booby traps and other devices.” As a matter of internal policy, the United States has established the Military Code of Conduct as a means of focusing American soldiers and sailors on the need to avoid violations, and there have been prosecutions for violations over the years.
In every case, the effort is aimed at limiting something that seems, at its worst, to be inherently unlimitable. The examples of the provocations and their results are abundant from the sad images taken at Abu Graib prison to the scenes of civilian destruction in Ukraine to the horrifying Hamas attack on Israel on October 7, 2023, which slaughtered more than 1,000 Israeli citizens and the consequential reaction to that attack by the Israelis. Attempts to enforce the rules of war by the International Court of Justice have been spotty at best.
Many of the violations of the various rules of war have led to charges of crimes against humanity. Notably, a number of convictions have been obtained by the International Criminal Court resulting from the barbaric behavior in certain conflicts in this and the last century.
The International Court of Justice was established in 1945 and is now one of the key organs of the United Nations. It claims worldwide jurisdiction and currently has 193 member nations. While the United States does support the ICJ, it specifically has not joined it.
The arguments have been largely premised on the notion that the U.S. has the ability to prosecute its own citizens and members of the military for violations that would otherwise fall under the jurisdiction of the ICJ. Therefore, there’s no need to join or to place the fate of U.S. citizens in the hands of those who may be predisposed to find against the U.S. for political reasons. U.S. sovereignty is the issue.
The simple question you might have in mind is this: Why should we have rules of war when they appear to be frequently ignored and, even when not ignored, there are no serious consequences for violations?
The actual number of convictions for violations of the rules or crimes against humanity in the International Criminal Court is less than 20. Because the International Court of Justice isn’t a criminal court, its rulings are seen to be advisory. The recent ruling of the ICJ brought about by South Africa’s accusation against Israel for crimes against humanity in the war between Hamas and Israel makes the point. While the ruling suggests there may be a basis for the accusation, unless the ICJ attempts a prosecution, there’s no consequence beyond the court of public opinion.
War is hell, and trying to limit and constrain the exercise of a war machine is difficult, to say the least. However, it’s clear that in the face of chaos, civilized nations continue to do what they can to limit the most extreme consequences through treaties and agreements or self-imposed standards of conduct.
If there’s anything missing, there will be those who will attempt to address it, such as the anti-laser pact. Beyond that, developing a more robust way for the community of civilized nations to intervene and bring violations before the International Criminal Court would be an important development. The violence in Haiti that is currently consuming that country has set the stage for international intervention. But that’s a limited example since it’s an internal issue and not a war between nation states.
Violators must not only sense the threat of accountability, but there must also be accountability.
