Hannah Arendt said ‘No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. To the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could have been.’ The study of law of war is largely the study of history of war. Law of war tries repeatedly to impose legal constraints on armed conflict by negotiations among military powers. Article 38 of the statute of the International Court of Justice lists five sources in descending order of value, they are: international conventions (treaties); international custom as evidence of a general practice accepted as law; general principles of law recognized by civilized nations; judicial decisions; and the teachings of highly qualified publicists. Since the 19th century, there are increasingly valued treaty obligations. , Professor Pollock wrote : ‘There is no doubt that, when all or most of the Great Powers have deliberately agreed to certain rules of general application, the rules approved by them have very great weight in practice even among states which have never consented to them.’ Binding quality of treaties has increased substantially since the Second World War. It was accelerated by the ‘Vienna Convention on the Law of Treaties ‘in 1980. Joni S. Charme wrote in ‘The Interim Obligation Of Article 18’; The United States Department of State considers the Vienna Convention "in dealing with day-to-day treaty problems" and recognizes the Vienna Convention as in large part "the authoritative guide to current treaty law and practice. ‘ Will Durant, in ’The Life of Greece, the Story of Civilization II ‘wrote: Custom and religion among the Greeks exercised a restraint upon the victor in war. It is a regular matter, even in civil wars, to sack the conquered city, to finish off the wounded, to slaughter or enslave all captured noncombatants, to burn down the houses, to burn down the fruit trees and the crops, to exterminate the livestock, and to destroy the seed for future sowings. Preamble to Hague Convention IV 1907 says: ‘We look to a number of sources to ascertain principles of international law, including international conventions, international customs, treatises, and judicial decisions rendered in this and other countries. Custom is an important source of international law but proving its existence may be problematical. The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. There is an essential difference, as to certainty and definiteness, between municipal law and a system or body of rules in regard to international conduct, which, so far as it exists at all rests upon a consensus of civilized States, not expressed in any code or pact, nor possessing, in case of dispute, any authorized or authoritative interpreter; and capable, indeed, of proof, in the absence of some express international agreement, only by evidence of usage to be obtained from the action of nations in similar cases in the course of their history. ‘According to Ian Brownlie, ‘custom requires a general recognition among States of a certain practice as obligatory, and its elements include international duration, uniformity and consistency of practice, generality of the practice, and a sense of legal obligation.’ Judicial opinions and teachings of highly qualified commentators are subsidiary means for determining the law under "precedential" guidance. The law of war primary guidance lies in the norms enunciated by the Charter of the United Nations, and the various Hague and Geneva conventions. The law is rapidly developing and careful research of emerging norms is necessary. Lauterpacht says that the law of war is determined by three general principles: 1. A belligerent is justified in applying compulsion and force of any kind, to the extent necessary for the realization of the purpose of the war, with the least possible expenditure of casualties, resources and money. This is the doctrine of military necessity. 2. Based on the principle of humanity, the doctrine of "unnecessary suffering" 3. Based on the principle chivalry which demands a certain amount of fairness in offense and defense, and a certain mutual respect between the opposing forces. What is chivalry? It can be used to describe the concept of the soldier as an individual whose vocation was to defend in arms the cause of faith and justice valiantly and generously.
Posted on: Wed, 11 Sep 2013 17:06:41 +0000
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