THE LAW OF WAR
Law of war, that part of international law dealing with the inception, conduct, and termination of warfare. Its aim is to limit the suffering caused to combatants and, more particularly, to those who may be described as the victims of war—that is, noncombatant civilians and those no longer able to take part in hostilities. Thus, the wounded, the sick, the shipwrecked, and prisoners of war also require protection by law.
The laws of war have found it difficult to keep up with rapid changes wrought by the development of ever-newer weapons and more technologically advanced warfare, with their attendant damage to the natural environment. It therefore becomes important constantly to supplement (but not to abolish) earlier treaties. This article shows how such a process of supplementation has been carried out.
The law of war has also been taken to include limitations placed upon states on their use of armed force. No system of law can prevent a state (or, indeed, an individual) from using force in self-defense, and the limitations of this concept are also discussed in this article.
Until the 20th century there existed no principle of international law that limited the right of states to go to war. War was seen as an integral part of state sovereignty to be entered into for political reasons. There were, however, attempts to distinguish wars that were considered “just” from those which were “unjust.”
This was a Christian doctrine formulated by, among others, St. Augustine, but it was an extremely flexible one, enabling a state to describe its war as just at its own discretion. As a corollary, the enemy state would therefore be fighting an unjust war, and its soldiers could be treated in any manner by the state claiming to be fighting a just war.
It was more than likely that all states involved in a single conflict would claim to be fighting for a just cause and would show an attendant lack of concern for the protection of those unable, through wounds or capture, to defend themselves.
The development of modern weapons that could cause unnecessary suffering to combatants, and the great strides made in battlefield medical care, led to a growing awareness that international cooperation was required to protect the wounded and sick. Henri Dunant, a Swiss citizen and founder of the Red Cross, was preeminent in leading a number of states to conclude the first Geneva Convention in 1864 to protect the wounded and sick.
But the first attempt to codify the laws of war was drafted by Francis Lieber, a college professor in New York City. Promulgated to Union forces by President Abraham Lincoln during the American Civil War, the Lieber code was to have a profound effect on subsequent codifications of the laws of war.
In 1868 the Declaration of St. Petersburg prohibited the use of explosive projectiles weighing less than 400 grams, while in 1899 two major treaties were concluded at The Hague, one concerning asphyxiating gases and another concerned with expanding bullets. The second Hague conference, in 1907, proved to be a milestone, producing 13 separate treaties.
In 1925 the Geneva Gas Protocol was signed, prohibiting the use in war of asphyxiating, poisonous, or other gases and of bacteriological methods of warfare. This was followed in 1929 by two further Geneva Conventions, dealing with the wounded and sick and with prisoners of war.
Following World War II yet another conference produced the four 1949 Geneva Conventions dealing, respectively, with the wounded and sick on land, with the wounded, sick, and shipwrecked at sea, with prisoners of war, and with civilians.
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.
Judicial decisions are also a source of the international laws of war. The International Military Tribunals at Nürnberg and Tokyo following World War II laid down many general principles that became widely accepted, but, in fact, following that conflict a large number of other tribunals were conducted by individual states to try those charged with war crimes. In addition, a Japanese court, in the case of Shimoda v. Japan (1955), dealt with the legality in international law of the atomic bombing of Hiroshima and Nagasaki.
Legally defining war
Two particular matters that were not referred to by either treaty were the meaning of the word war and the limits of any right of self-defense. The term war remained subjective, giving states liberty to withhold the term from their military adventures if they were so minded. (For example, in the fighting over Manchuria between Japan and China from 1937 to 1941, the Japanese refused to call the conflict a war.) As a concept, the term was left with little significance after the United Nations Charter of 1945, in article 2(4), prohibited “the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” Moreover, all the Geneva Conventions apply to armed conflicts, whether or not they are officially called wars. In the Falkland Islands conflict in 1982, for example, the United Nations Security Council (in Resolution 502) condemned the Argentine invasion of the islands as a breach of the peace, even though neither Argentina nor the United Kingdom had declared war. Upon capture by the enemy, combatants were entitled to the treatment prescribed by the third Geneva Convention of 1949.
In 1974, General Assembly Resolution 3314 defined and gave some examples of aggression. Article 3 gave, as examples, invasion or attack by armed forces of a state, military occupation, bombardment against the territory of another state, blockade of ports or coasts, action of a state in allowing its territory to be used for preparing an act of aggression against a third state, and the sending of armed bands, groups, irregulars, or mercenaries to carry out acts of armed force against another state.
Other General Assembly resolutions, notably Resolution 2625 of 1970 (the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations), stress the prohibition on the use of force contained in article 2
Vietnam, a nation in Southeast Asia on the eastern edge of the Indochinese peninsula, had been under French colonial rule since the 19th century.
During World War II, Japanese forces invaded Vietnam. To fight off both Japanese occupiers and the French colonial administration, political leader Ho Chi Minh—inspired by Chinese and Soviet communism—formed the Viet Minh, or the League for the Independence of Vietnam.
Following its 1945 defeat in World War II, Japan withdrew its forces from Vietnam, leaving the French-educated Emperor Bao Dai in control. Seeing an opportunity to seize control, Ho’s Viet Minh forces immediately rose up, taking over the northern city of Hanoi and declaring a Democratic Republic of Vietnam (DRV) with Ho as president.
Seeking to regain control of the region, France backed Emperor Bao and set up the state of Vietnam in July 1949, with the city of Saigon as its capital.
Both sides wanted the same thing: a unified Vietnam. But while Ho and his supporters wanted a nation modeled after other communist countries, Bao and many others wanted a Vietnam with close economic and cultural ties to the West.
In 1955, however, the strongly anti-communist politician Ngo Dinh Diem pushed Emperor Bao aside to become president of the Government of the Republic of Vietnam (GVN), often referred to during that era as South Vietnam..
The Viet Cong
With the Cold War intensifying worldwide, the United States hardened its policies against any allies of the Soviet Union, and by 1955 President Dwight D. Eisenhower had pledged his firm support to Diem and South Vietnam.
With training and equipment from American military and the CIA, Diem’s security forces cracked down on Viet Minh sympathizers in the south, whom he derisively called Viet Cong (or Vietnamese Communist), arresting some 100,000 people, many of whom were brutally tortured and executed.
By 1957, the Viet Cong and other opponents of Diem’s repressive regime began fighting back with attacks on government officials and other targets, and by 1959 they had begun engaging the South Vietnamese army in firefights.
Gulf of Tonkin
A coup by some of his own generals succeeded in toppling and killing Diem and his brother, Ngo Dinh Nhu, in November 1963, three weeks before Kennedy was assassinated in Dallas, Texas.
The ensuing political instability in South Vietnam persuaded Kennedy’s successor, Lyndon B. Johnson, and Secretary of Defense Robert McNamara to further increase U.S. military and economic support.
In August of 1964, after DRV torpedo boats attacked two U.S. destroyers in the Gulf of Tonkin, Johnson ordered the retaliatory bombing of military targets in North Vietnam. Congress soon passed the Gulf of Tonkin Resolution, which gave Johnson broad war-making powers, and U.S. planes began regular bombing raids, codenamed Operation Rolling Thunder, the following year.
In contrast to the air attacks on North Vietnam, the U.S.-South Vietnamese war effort in the south was fought primarily on the ground, largely under the command of General William Westmoreland, in coordination with the government of General Nguyen Van Thieu in Saigon.
Westmoreland pursued a policy of attrition, aiming to kill as many enemy troops as possible rather than trying to secure territory. By 1966, large areas of South Vietnam had been designated as “free-fire zones,” from which all innocent civilians were supposed to have evacuated and only enemy remained. Heavy bombing by B-52 aircraft or shelling made these zones uninhabitable, as refugees poured into camps in designated safe areas near Saigon and other cities.
Even as the enemy body count (at times exaggerated by U.S. and South Vietnamese authorities) mounted steadily, DRV and Viet Cong troops refused to stop fighting, encouraged by the fact that they could easily reoccupy lost territory with manpower and supplies delivered via the Ho Chi Minh Trail through Cambodia and Laos. Additionally, supported by aid from China and the Soviet Union, North Vietnam strengthened its air defenses.
Between July 1966 and December 1973, more than 503,000 U.S. military personnel deserted, and a robust anti-war movement among American forces spawned violent protests, killings and mass incarcerations of personnel stationed in Vietnam as well as within the United States.
Bombarded by horrific images of the war on their televisions, Americans on the home front turned against the war as well: In October 1967, some 35,000 demonstrators staged a massive Vietnam War protest outside the Pentagon. Opponents of the war argued that civilians, not enemy combatants, were the primary victims and that the United States was supporting a corrupt dictatorship in Saigon.
By the end of 1967, Hanoi’s communist leadership was growing impatient as well, and sought to strike a decisive blow aimed at forcing the better-supplied United States to give up hopes of success.
On January 31, 1968, some 70,000 DRV forces under General Vo Nguyen Giap launched the Tet Offensive (named for the lunar new year), a coordinated series of fierce attacks on more than 100 cities and towns in South Vietnam.
Taken by surprise, U.S. and South Vietnamese forces nonetheless managed to strike back quickly, and the communists were unable to hold any of the targets for more than a day or two.
My Lai Massacre
The next few years would bring even more carnage, including the horrifying revelation that U.S. soldiers had mercilessly slaughtered more than 400 unarmed civilians in the village of My Lai in March 1968.
After the My Lai Massacre, anti-war protests continued to build as the conflict wore on. In 1968 and 1969, there were hundreds of protest marches and gatherings throughout the country.
On November 15, 1969, the largest anti-war demonstration in American history took place in Washington, D.C., as over 250,000 Americans gathered peacefully, calling for withdrawal of American troops from Vietnam.
The anti-war movement, which was particularly strong on college campuses, divided Americans bitterly. For some young people, the war symbolized a form of unchecked authority they had come to resent. For other Americans, opposing the government was considered unpatriotic and treasonous.
As the first U.S. troops were withdrawn, those who remained became increasingly angry and frustrated, exacerbating problems with morale and leadership. Tens of thousands of soldiers received dishonorable discharges for desertion, and about 500,000 American men from 1965-73 became “draft dodgers,” with many fleeing to Canada to evade conscription. Nixon ended draft calls in 1972, and instituted an all-volunteer army the following year.
When Did the Vietnam War End?
In January 1973, the United States and North Vietnam concluded a final peace agreement, ending open hostilities between the two nations. War between North and South Vietnam continued, however, until April 30, 1975, when DRV forces captured Saigon, renaming it Ho Chi Minh City (Ho himself died in 1969).
More than two decades of violent conflict had inflicted a devastating toll on Vietnam’s population: After years of warfare, an estimated 2 million Vietnamese were killed, while 3 million were wounded and another 12 million became refugees. Warfare had demolished the country’s infrastructure and economy, and reconstruction proceeded slowly.
In 1976, Vietnam was unified as the Socialist Republic of Vietnam, though sporadic violence continued over the next 15 years, including conflicts with neighboring China and Cambodia. Under a broad free market policy put in place in 1986, the economy began to improve, boosted by oil export revenues and an influx of foreign capital. Trade and diplomatic relations between Vietnam and the U.S. resumed in the 1990s.
In the United States, the effects of the Vietnam War would linger long after the last troops returned home in 1973. The nation spent more than $120 billion on the conflict in Vietnam from 1965-73; this massive spending led to widespread inflation, exacerbated by a worldwide oil crisis in 1973 and skyrocketing fuel prices.
Roots of the international law of war..
Law by treaty
In ancient times war was not subject to any control other than that exercised by the combatants themselves, and any limitations that they might have placed on their own actions on the battlefield would have been due to military necessity rather than any belief that to attack civilians or to kill prisoners of war was wrong—let alone illegal.
The Viking invaders in the 11th century, for instance, knew no concept of sparing the civilian population from attack or pillage, and they did not generally protect and release captured enemy combatants. And there was no reason why they should: no treaties prohibiting brutal acts in battle had been negotiated between states, nor had there developed a uniform practice among states that considered themselves civilized to avoid such conduct.
In order for such norms to develop, there had to come into existence a belief shared by a number of independent states that some limits should be placed on the methods and means of war among themselves—especially if wars were to be fought between Christian states. (Crusades against the infidel were not controlled by any similar concern.)
In the Middle Ages in Europe the precepts of Christianity began to provide vague guidelines of conduct on the battlefield. In 1625 Hugo Grotius wrote On the Law of War and Peace (De Jure Belli ac Pacis), in which he explored the basic principles of the humanitarian treatment of the victims of war.
f civilians were to enjoy any protection, it would also become necessary clearly to distinguish them from the combatants. This could come only with the development of a professional army wearing a distinctive uniform and taking upon itself a code of chivalry.
Certain actions would then become unchivalrous and would lead to heavy sanction from brother soldiers. Chivalry, however, did not protect the common soldier or the ordinary civilian, for whom notions of chivalry were considered inappropriate. Protection by rule of law for the lower orders had to await the acceptance of principles of humanity that took a distinctive form in the 19th century.
Further treaties followed, including the 1954 Hague Convention on the Protection of Cultural Property, the 1977 United Nations Convention on Military or Any Other Hostile Use of Environmental Modification Techniques, and the two 1977 Protocols to the Geneva Conventions of 1949, extending the terms of the conventions to wars of national liberation and civil wars.
Law by custom
The laws of war are to be found not only in treaties entered into by states but also in customary international law, which is found in the actual practice of states and in the belief (called opinio juris: “opinion of the law”) that that practice is in conformity with international law. Much of this customary international law has found its way into the various conventions described above.
Therefore, it may properly be argued that, although a particular state is not a party to a certain treaty, it is nevertheless bound by the principle of customary international law codified in that treaty. Further, a treaty may have such wide acceptance that it can be said to reflect the practice of all states, and it may then bind all states as reflecting customary international law.
As an example of this approach, the International Military Tribunal at Nürnberg in 1946 decided that the fourth Hague Convention of 1907, concerning the laws and customs of war on land, reflected customary international law; hence, its principles bound Germany even though some states, which were at war with Germany, were not parties to it.
Some areas of the laws of war are not covered by treaty provisions, making it necessary to turn to other sources of international law. However, it may be that a particular point has never arisen before. In this case the Martens Clause, which first appeared in one of the 1899 Hague Conventions (and has been repeated in virtually every major treaty since), avoids any lacuna in the law by providing the following:
The Covenant of the League of Nations in 1920 attempted to restrict, but not to prohibit, recourse to war. It provided that states should seek to settle their disputes peacefully by referring them to arbitration, judicial settlement, or to the Council of the League. The parties to the Covenant agreed that they would in no case resort to war until three months after the award by the arbitrators, the judicial decision, or the report by the council.
It was not until the Kellogg–Briand Pact of 1928 that 63 states party to it renounced war as an instrument of national policy. This treaty was relied upon by the Nürnberg tribunal in establishing not only that there was an international crime of waging aggressive war but that international law also imposed individual liability
The Security Council of the UN is empowered by article 39 of the Charter to determine the existence of any threat to the peace, breach of the peace, or act of aggression. It may make recommendations or decide what measures (including the use of armed force) shall be taken. In practice, the Security Council often is unable to act because of the veto power possessed by its permanent members (the United States, the United Kingdom, the Soviet Union,
France, and China), and it is unable to take action through the use of armed force because none of the agreements between individual states and the UN envisaged by the Charter were ever made.
The Vietnam War was a long, costly and divisive conflict that pitted the communist government of North Vietnam against South Vietnam and its principal ally, the United States. The conflict was intensified by the ongoing Cold War between the United States and the Soviet Union. More than 3 million people (including over 58,000 Americans) were killed in the Vietnam War, and more than half of the dead were Vietnamese civilians. Opposition to the war in the United States bitterly divided Americans, even after President Richard Nixon ordered the withdrawal of U.S. forces in 1973. Communist forces ended the war by seizing control of South Vietnam in 1975, and the country was unified as the Socialist Republic of Vietnam the following year.
Did you know? According to a survey by the Veterans Administration, some 500,000 of the 3 million troops who served in Vietnam suffered from post-traumatic stress disorder, and rates of divorce, suicide, alcoholism and drug addiction were markedly higher among veterans.
When Did the Vietnam War Start?
The Vietnam War and active U.S. involvement in the war began in 1954, though ongoing conflict in the region had stretched back several decades.
After Ho’s communist forces took power in the north, armed conflict between northern and southern armies continued until the northern Viet Minh’s decisive victory in the Battle of Dien Bien Phu in May 1954. The French loss at the battle ended almost a century of French colonial rule in Indochina.
The subsequent treaty signed in July 1954 at a Geneva conference split Vietnam along the latitude known as the 17th Parallel (17 degrees north latitude), with Ho in control in the North and Bao in the South. The treaty also called for nationwide elections for reunification to be held in 1956
In December 1960, Diem’s many opponents within South Vietnam—both communist and non-communist—formed the National Liberation Front (NLF) to organize resistance to the regime. Though the NLF claimed to be autonomous and that most of its members were not communists, many in Washington assumed it was a puppet of Hanoi.
A team sent by President John F. Kennedy in 1961 to report on conditions in South Vietnam advised a build-up of American military, economic and technical aid in order to help Diem confront the Viet Cong threat.
Working under the “domino theory,” which held that if one Southeast Asian country fell to communism, many other countries would follow, Kennedy increased U.S. aid, though he stopped short of committing to a large-scale military intervention.
By 1962, the U.S. military presence in South Vietnam had reached some 9,000 troops, compared with fewer than 800 during the 1950s.
The bombing was not limited to Vietnam; from 1964-1973, the United States covertly dropped two million tons of bombs on neighboring, neutral Laos during the CIA-led “Secret War” in Laos. The bombing campaign was meant to disrupt the flow of supplies across the Ho Chi Minh trail into Vietnam and to prevent the rise of the Pathet Lao, or Lao communist forces. The U.S. bombings made Laos the most heavily bombed country per capita in the world.
In March 1965, Johnson made the decision—with solid support from the American public—to send U.S. combat forces into battle in Vietnam. By June, 82,000 combat troops were stationed in Vietnam, and military leaders were calling for 175,000 more by the end of 1965 to shore up the struggling South Vietnamese army.
Despite the concerns of some of his advisers about this escalation, and about the entire war effort amid a growing anti-war movement, Johnson authorized the immediate dispatch of 100,000 troops at the end of July 1965 and another 100,000 in 1966. In addition to the United States, South Korea, Thailand, Australia and New Zealand also committed troops to fight in South Vietnam (albeit on a much smaller scale).
Vietnam War Protests
By November 1967, the number of American troops in Vietnam was approaching 500,000, and U.S. casualties had reached 15,058 killed and 109,527 wounded. As the war stretched on, some soldiers came to mistrust the government’s reasons for keeping them there, as well as Washington’s repeated claims that the war was being won.
The later years of the war saw increased physical and psychological deterioration among American soldiers—both volunteers and draftees—including drug use, post-traumatic stress disorder (PTSD), mutinies and attacks by soldiers against officers and noncommissioned officers.
Reports of the Tet Offensive stunned the U.S. public, however, especially after news broke that Westmoreland had requested an additional 200,000 troops, despite repeated assurances that victory in the Vietnam War was imminent. With his approval ratings dropping in an election year, Johnson called a halt to bombing in much of North Vietnam (though bombings continued in the south) and promised to dedicate the rest of his term to seeking peace rather than reelection.
Johnson’s new tack, laid out in a March 1968 speech, met with a positive response from Hanoi, and peace talks between the U.S. and North Vietnam opened in Paris that May. Despite the later inclusion of the South Vietnamese and the NLF, the dialogue soon reached an impasse, and after a bitter 1968 election season marred by violence, Republican Richard M. Nixon won the presidency.
Nixon sought to deflate the anti-war movement by appealing to a “silent majority” of Americans who he believed supported the war effort. In an attempt to limit the volume of American casualties, he announced a program called Vietnamization: withdrawing U.S. troops, increasing aerial and artillery bombardment and giving the South Vietnamese the training and weapons needed to effectively control the ground war.
In addition to this Vietnamization policy, Nixon continued public peace talks in Paris, adding higher-level secret talks conducted by Secretary of State Henry Kissinger beginning in the spring of 1968.
The North Vietnamese continued to insist on complete and unconditional U.S. withdrawal—plus the ouster of U.S.-backed General Nguyen Van Thieu—as conditions of peace, however, and as a result the peace talks stalled.
Kent State Shooting
In 1970, a joint U.S-South Vietnamese operation invaded Cambodia, hoping to wipe out DRV supply bases there. The South Vietnamese then led their own invasion of Laos, which was pushed back by North Vietnam.
The invasion of these countries, in violation of international law, sparked a new wave of protests on college campuses across America. During one, on May 4, 1970, at Kent State University in Ohio, National Guardsmen shot and killed four students. At another protest 10 days later, two students at Jackson State University in Mississippi were killed by police.
By the end of June 1972, however, after a failed offensive into South Vietnam, Hanoi was finally willing to compromise. Kissinger and North Vietnamese representatives drafted a peace agreement by early fall, but leaders in Saigon rejected it, and in December Nixon authorized a number of bombing raids against targets in Hanoi and Haiphong. Known as the Christmas Bombings, the raids drew international condemnation.
Psychologically, the effects ran even deeper. The war had pierced the myth of American invincibility and had bitterly divided the nation. Many returning veterans faced negative reactions from both opponents of the war (who viewed them as having killed innocent civilians) and its supporters (who saw them as having lost the war), along with physical damage including the effects of exposure to the toxic herbicide Agent Orange, millions of gallons of which had been dumped by U.S. planes on the dense forests of Vietnam.
In 1982, the Vietnam Veterans Memorial was unveiled in Washington, D.C. On it were inscribed the names of 57,939 American men and women killed or missing in the war; later additions brought that total to 58,200.