Abstract
The primacy of law in the making of strategy is raising fundamental questions about the utility of war and its acceptability as a tool of statecraft.
Full Article
In July 2022, Sergeant Vadim Shishimarin of the Russian army was convicted of murdering Oleksandar Shelipov on 28 February in Chupahivka in north-eastern Ukraine. The Russians knew that civilians might report their position and Shisihimarin was ordered to kill Shelipov, who was talking on his mobile phone while riding a bicycle. Shishimarin agreed at his trial that he was not required to follow an illegal order and so accepted that he had committed a war crime. He was sentenced to ten years’ imprisonment. By September 2022 the Ukrainians reckoned that they had evidence of about 70,000 Russian war crimes but Shishimarin’s offence, although widely reported, was hardly the most egregious of these. His unit had come under Ukrainian attack earlier in the day and was in a combat zone. In past wars deaths such as Shelipov’s might have been deemed the unavoidable collateral damage of war or the product of ‘military necessity’. However, none of the reports in the western press suggested such a plea had been entered in Shishimarin’s defence.
Since the 9/11 attacks in 2001, international law has exercised a growing influence on the political and strategic aspects of war’s conduct. For some powers at least, international humanitarian law shapes both how they use armed force and how they make the case for its employment to the court of international opinion. This is a significant change in how we think about war and how we debate its purposes, but it is one which is effectively hiding in plain sight. The international press commentary on the war in Ukraine focuses on Russian war crimes, including the killing of civilians by Russian ‘dumb’ bombs, as much as on the illegality of Russia’s invasion in defiance of the UN Charter which prohibits the state’s use of war except in cases of self-defence. Similarly, since 7 October 2023, the press has focused less on the tactics of how the Israeli Defence Force has fought its war in Gaza, despite the acknowledged difficulties of urban warfare, and more on whether it is breaching the laws surrounding war’s conduct (ius in bello). The IDF is accused of attacking hospitals, killing civilians and denying the population humanitarian aid. In both cases, Ukraine and Gaza, reporters may have little option but to focus on atrocities because both the Ukrainian armed forces and the IDF have exercised tight operational security and so have limited meaningful reporting on how their wars are being conducted. Whatever the reasons, the cumulative effect on how we think about war is profound. The literature addressing contemporary and future armed conflict focuses on technological innovation, on the roles of cyber, drones and artificial intelligence, but we are actually seeing war not through the prism of tactical and operational change but though ethics and the international law that flows from them. The primacy of law in the making of strategy is raising fundamental questions about the utility of war and its acceptability as a tool of statecraft.
At one level we should not be surprised. The ambition to bring war under the control of law has a long pedigree, dating back in its current incarnation to the conclusion of the Crimean War in 1856 and to the first Geneva Convention and the foundation of the International Red Cross after the battle of Solferino in 1859. Many jurists reflected the hopes of Enlightenment philosophers like Jean-Jacques Rousseau and Immanuel Kant that war itself might be abolished but in the first instance they focused on the principles of restraint and limitation within war – on ius in bello, not ius ad bellum (or the law governing the resort to war). By 1914, the state retained the sovereign right to go to war but thanks to the Hague conventions of 1899 and 1907 it was expected to observe certain rules in the waging of land war – at least when fighting another state. The treaty of Paris, concluded at the end of the Crimean War, addressed the laws of war at sea and abolished privateering, but made little progress thereafter. The declaration of London of 1909, which asserted the principle of the freedom of the seas, was not ratified by the host country. As a neutral, Britain stood to profit from the ability to trade in wartime but, if it were belligerent, it would lose the advantages that its navy – the largest in the world – would confer.
After the First World War, the efforts to outlaw war itself were renewed and in 1928 the Kellogg-Briand pact gave them effect for the first time. As a result, when the Nuremberg trials opened after the Second World War, the International Military Tribunal levelled the charge against Germany’s leaders that they had waged aggressive war in contravention of the Kellogg-Briand pact. It neglected, at least for the time being, junior figures who (like Shishimarin) were accused of war crimes committed during the course of the war. Moreover, because the crimes only reached the courts after the fighting was over, some saw the Nuremberg trials as ‘victors’ justice’. No charges, for example, were brought against Britain’s political leaders or the Royal Air Force for the night-time area bombing of German cities, despite the fact that they had killed German civilians and destroyed their homes. Bomber Command ’s response to such accusations rested on the arguments that after the fall of France in 1940 Britain had no other option if it was to take the war to Germany and that it was technically impossible to carry out precision attacks as the navigational aids and the aiming devices available at the time were not equal to the task. In other words, the defences of military necessity and, if need be, of unavoidable collateral damage (assuming that the targets were legitimate military targets like factories and railway marshalling yards) were deemed sufficient. Today detailed evidence of war crimes is being collected while the conflict is ongoing and before the war’s outcome is known. Moreover, it rests on the assumption that precision is technically achievable. Nor does international law today rely solely on the belligerents for its implementation. The founding charter of the United Nations, with its prohibition of aggressive war, permitted the use of war only in cases of self-defence. Under the Rome statute of 2002 the United Nations established the International Criminal Court in the Hague as a court of last resort, so enabling the international community to act if states fail to regulate their own behaviour. Germany is not today a direct party to the war in Ukraine, even if it is now the second largest donor of support to Ukraine after the United States, but in November 2023 it declared its intent to prosecute senior Russian officers for crimes against humanity under the principle of ‘universal jurisdiction’.
Russia breached both the Kellogg-Briand pact and the United Nations Charter when it first attacked Ukraine in 2014 and did so even more grievously and openly in 2022. However, the illegitimacy of a state’s resort to war does not deprive those who fight on its behalf of the rights of combatants. They must be treated as prisoners of war if they surrender and be returned home when the war is over. They also have obligations – especially that which requires them to distinguish between combatants and non-combatants. The presumption underpinning international humanitarian law is that war will be used with discrimination and discipline. How we judge Shishimarin’s actions may be best illustrated by asking the hypothetical question of how we might judge a Ukrainian soldier caught in comparable circumstances. How will the law respond to a Ukrainian attack, say in Crimea or more directly in Russia itself, which results in the deaths of Russian civilians – even if those deaths are defensible as a collateral consequence of striking a legitimate target? In November 2023, as the snow fell for the first time that winter in Kyiv, Ukraine braced itself for renewed Russian attacks on its critical national infrastructure and on its energy supplies. President Zelensky promised retaliation if that happened. But is revenge a sufficient legal defence for attacks on critical national infrastructure, even if Russia started this war? Can Russian civilians become legitimate targets, although Ukrainian civilians are not?
The distinction between the law governing the resort to war and the law affecting war’s conduct is being eroded – not by lawyers, who remain keen to preserve it, but by the press, by on-line media and by the accompanying political rhetoric. Because Russia’s war is illegal, it is presumed that the way in which its armed forces fight is also illegal. It may often be so and may well be proved by due process in, for example, the International Criminal Court, but legally one is not the consequence of the other. The advent of precision guided munitions, directed by intelligence, satellite, target acquisition and reconnaissance (ISTAR) systems of extraordinary accuracy and speed, has reshaped the narrative. The presumption of greater accuracy increase the presumption of malign intent if civilians are killed. It is assumed they must have been deliberately chosen as targets because they could have been spared if due diligence had been observed. Although Russia was using ‘dumb’ bombs without such precision in 2022, its so-called ‘glide bombs’ adopted in 2023 have heightened their responsibility.
Until 7 October 2023 the tensions that followed from the conflation of ius ad bellum with ius in bello remained more implicit than explicit. The Hamas attack on Israel breached both forms of law: it was an act of aggression and it deliberately killed non-combatants with extraordinary and provocative brutality. By rising to the provocation, Israel is relying on the legality of its decision to go to war to justify how it is now fighting that war. The enforcement of the right to respond to attack does not legitimise illegal ways of fighting. That does not make obeying the laws of war easy, especially in the close-quarter combat of urban warfare. As in Mariupol in 2022, the expectation that there will be no collateral damage and no civilian deaths in Gaza is fanciful. There is no time for reflection in fighting house to house and cellar to cellar, and more often than not the sole option is to kill or be killed. But that does not apply to the use of artillery fire or aerial bombardment, when the opportunities for consideration and deliberation are more evident. The charge that Israel is killing innocent civilians in Gaza, if proven, will be a breach of ius in bello. Those powers in the ‘west’, like the United States, Germany and the United Kingdom, who have supported Ukraine and now back Israel, are today caught between a rock and a hard place. In Israel’s mitigation, they say that some civilian casualties in war are inevitable, especially in densely populated area, but that is not a mitigation that they will grant Russia because its resort to war was unjust.
This erosion of the distinction between ius ad bellum and ius in bello has not crept up on us unawares. George W. Bush’s global war on terror opted not to accord belligerent rights to Al Qaeda and Taliban fighters because they were terrorists (a description President Zelensky uses of Russians) – as Abu Ghraib and Guantánamo Bay testified. Nor were they given the right to trial accorded to criminals. Instead, they were deprived of any legal status. When Obama and Trump shifted the emphasis of intervention from ‘boots on the ground’ to the use of drones in targeted attacks, they executed terrorists without trial – and sometimes pre-emptively. They also applied armed force in sovereign states, including Pakistan and Yemen, with whom the United States was not at war – so breaching ius ad bellum, while simultaneously proving that they were ready to inflict collateral damage and to kill civilians (a breach of ius in bello) if need be. The United States justified its actions less through the prism of international law and more through the reinterpretation if US laws.
In November 2001, the US Air Force Deputy Judge Advocate General, Charles Dunlap, coined the term ‘lawfare’ to describe the exploitation of the laws of war as a weapon of war, but he attributed its use to America’s enemies. Today, American legal scholars like Orde Kittrie argue that ‘lawfare’ is used by the United States itself (as well as by Israel). When legal arguments have such political and international purchase, the effort to manipulate them according to the desires of the belligerent can undermine international law itself. The consequence is that any power may struggle to legitimise its use of armed force, even if the resort to war is justified as a response to aggression.
Since 2009 both the United States and the United Kingdom have rationalised their foreign and security policies as a defence of ‘the rules-based international order’, not as means to support and sustain international law. The shift reflects the west’s increasingly weak position in the courts of global opinion when it uses or backs the use of armed force. In 1990-91 the United States carefully orchestrated its response to Iraq’s invasion of Kuwait with successive United Nations Security Council Resolutions but in 2003 it invaded Iraq without any UNSC resolution. In 2011, Britain, France and the United States exceeded the mandate given them by the United Nations to protect civilians in Benghazi by effecting regime change in Libya. For some, the United States talks the talk but it does not walk the walk. It has not ratified the UN Charter on the Law of the Sea and it is not a state party to the International Criminal Court. A rules-based international order, in which the west makes the rules and then decides which it will obey and which not, cannot hold. Indeed, it is not holding, as the successive motions in the United Nations General Assembly condemning Russia’s invasion of Ukraine, show. A majority of states have supported the motions, but a stubborn and consistent minority has abstained or supported Russia. As they include both China and India, they speak for half the world’s population.
The distinction between ius ad bellum and ius in bello may be irrecoverable, however powerful the protestations of international lawyers. The separation they make between a state (as the party that goes to war) and the individual (as the person who does the fighting) is at odds with the democratic idea that citizens have political agency. A recent report – that some Ukrainian and western officials want to treat all Russian combatants, even if they have deserted and fled Russia, as responsible for Russia’s war – makes that point. So does the determination of many Israelis to hold all Palestinians accountable for the atrocities committed by Hamas – which is, after all, Palestine’s party of government even if it is regarded as a terrorist organisation by the United States and its allies. But if we want to enforce international humanitarian law and the legal presumption against the use of war, we need to use the vocabulary of international law, which has global legitimacy, not that of an international order regulated and defined by one dominant power.