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Citation: 35 Harv. Int'l. L. J.
49 1994
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VOLUME 35, NUMBER 1, WINTER 1994
The Legitimation of Violence:
A Critical History of the Laws of War
Chris af Jochnick*
Roger Normand**
Who controls the past controls the future; who controls the pre-
sent controls the past.
George Orwell, 1984
I. INTRODUCTION
A. The Gulf War and the Promise of Law
The forty-three-day war waged against Iraq by the United States-led
Coalition (the "Coalition") enjoys a reputation as one of the cleanest
and most legal wars in history.' Despite evidence of disastrous long-
term consequences for Iraqi civilians, the image persists of a new kind
of war, a modern, high-tech "operation" that decimated the opposing
military with minimal damage to the surrounding population. Coali-
tion leaders bolstered this image by repeatedly invoking international
law in order to condemn Iraqi conduct and to praise the restraint
exhibited by the Coalition forces both in the actual combat and in the
events
preceding
it.
2
* J.D., Harvard Law School; Director of Projects, Center for Economic & Social Rights.
** J.D., Harvard Law School; M.T.S., Harvard Divinity School; Director of Policy, Center for
Economic & Social Rights. We wish to thank the John D. and Catherine T. MacArthur Founda-
tion for its generous support. We also thank Professor Richard Falk, Professor Henry Steiner,
Sarah Leah Whitson, and Mike Eisner for their helpful comments on earlier drafts of this article.
Finally, we are grateful to the participants in the Harvard Study Team and International Study
Team human rights missions to Iraq and to the many people in the United States, Iraq, and
Jordan who made these missions possible.
1. Colonel Raymond Ruppert, staff judge advocate for U.S. Central Command and General
H. Norman Schwarzkopf's personal lawyer during the conflict, declared the Gulf War "the most
legalistic war we've ever fought." Steven Keeva, Lawyers in the War Room, A.B.A. J., December
1991, at 52.
2. See MIDDLE EAsT WATCH, NEEDLESS DEATHS IN THE GULF WAR: CIVILIAN CASUALTIES
DURING THE AIR CAMPAIGN AND VIOLATIONS OF THE LAWS OF WAR, 75-78 (1991). See also
DEPARTMENT OF DEFENsE, CONDUCT OF THE PERSIAN GULF WAR: FINAL REPORT TO CON-
GRass Appendix 0 (April 1992) [hereinafter D.O.D. REPORT].
Harvard International Law Journal / Vol. 35
There is a critical unspoken assumption that gives rhetorical power
to the idea of a legal war-specifically, that a legal war is more humane
than an illegal war. A legal war connotes a war that is proper and just,
rather than a war that merely complies with a set of technical guide-
lines. That the Gulf War is considered to be the most legalistic war
ever fought adds to its image as a just and relatively humane war.
This Article challenges the notion that the laws of war serve to
restrain or "humanize" war. Examination of the historical development
of these laws reveals that despite noble rhetoric to the contrary, the
laws of war have been formulated deliberately to privilege military
necessity at the cost of humanitarian values. As a result, the laws of
war have facilitated rather than restrained wartime violence. Through
law, violence has been legitimated.
Viewed from this perspective, the Gulf War does not represent the
dawn of a hopeful new age of international law,
3
but rather the con-
tinuation and even the intensification of a historical trend to legalize
inhumane military methods and their consequences. By obscuring
bombing behind the protective veil of justice, the laws of war may
have increased the destruction in Iraq. Despite the Coalition's reputa-
tion for targeting only military sites, most independent studies have
put the civilian death toll at over 100,000.
4
3. Within the political mainstream of the United States, both conservatives and liberals held
high hopes that the post-Cold War international cooperation displayed during the Gulf War
heralded what former Secretary of State James A. Baker III termed "one of those rare transforming
moments in history... an era which is full of promise .... James A. Baker III, Address to the
Los Angeles World Affairs Council (October 29, 1990), available in LEXIS, Nexis Library, Fednew.
A representative article in the A.B.A. JOURNAL, exhibiting this optimistic spirit, proclaimed,
"There is now a greater worldwide interest in the rule of law than at any time in recent memory."
Keeva, supra note 1, at 59. Nicholas Rostow, currently Special Assistant to the President for
National Security Affairs and Legal Adviser to the National Security Council, commented, "If
the Cold War has indeed ended, the international legal disputes that were such an important
part of that war may also have come to a close .... The profound changes of recent years should
permit the world community to test the ideas for world public order set forth in the U.N. Charter
and the effectiveness of the United Nations itself." Nicholas Rostow, The International Ue of Force
After the Cold War, 32 HAsv. INT'L L.J. 411, 411 (1991).
4. Beth Osborne Daponte, a demographer with the U.S. Census Bureau, estimated that after
the war's conclusion, 111,000 Iraqi civilians died from war-related health effects by the end of
1991. Many of these deaths are attributable to "Allied bombing of Iraq's electrical generating
capacity, which was needed to fuel Iraq's sewerage and water treatment system." Study Shoss Iraqi
Post-War Deaths Greater Than Initially Thought, PR Newswire, Aug. 17, 1993, available in LEXIS,
Nexis Library, PR News File. The Census Bureau initially dismissed Ms. Daponte for releasing
earlier estimates of Iraqi casualties but later reinstated her. Ageniy Reinstates Tabulator of Iraqi War
Deaths, N.Y. TIMEs, Apr. 13, 1992, at A14. Ms. Daponte's estimates are supported by a range
of other studies. See, e.g., Harvard Study Team, Public Health in Iraq After the Gulf WIr (May
1991) (predicting "170,000 children under five ... will die in the coming year from delayed
effects of the Gulf Crisis.") (relevant pages on file with the Harvard International Law Journal);
International Study Team, Health and Welfare in Iraq After the Gulf Crisis: An In-Depth Assestnmnt
(Oct. 1991) (predicting that thousands of Iraqi children would die of malnutrition and disease)
1994 / Critical History of the Laws of War
This analysis of the Gulf War underscores the difficulty of using law
to humanize war, but does not condemn the effort itself. The require-
ments of global security and prosperity in an interdependent world
may yet lead countries to develop laws that impose effective humani-
tarian limits on the conduct of war. In working to achieve such
limitations, however, it is important to understand how past legal
efforts to regulate war have often come to sanction the behavior they
were ostensibly designed to prevent.
B. Outline of the Argument
The purpose of this argument is to provide a more realistic under-
standing of the relationship between law and war as a first step towards
more effective wartime protection for civilians. The argument is pre-
sented in two articles. This, the first Article, analyzes the historical
development of the laws of war and demonstrates that they have been
formulated, and in fact have served, to legitimate ever more destructive
methods of combat. The second Article, which will appear in the next
issue of the Harvard International Law Journal, applies this analysis to
the Gulf War and concludes with suggestions for realizing the humani-
tarian sentiments underlying the laws of war.
This Article is divided into eight parts. Part II questions the tradi-
tional understanding of the laws of war as a restraint on violence and
warns that mystification of the law's impact adds a facade of legitimacy
to existing wartime practices, undermining more realistic efforts to
limit war. Parts III-V sketch the development of the laws of war from
ancient times through the Hague Conferences of 1899 and 1907. These
sections argue that the nineteenth century, hailed as an era of humani-
tarian progress when war was subjected to the discipline of legal
codification, in fact firmly established the priority of military over
humanitarian concerns. Parts VI and VII support this contention by
reviewing the actual role played by the laws of war during the World
Wars and the Nuremberg Trials. This review demonstrates how the
rhetorical use of law by all belligerents in the World Wars to justify
terror attacks against civilians, and the refusal to condemn such attacks
at Nuremberg, underscore the law's capacity to legitimate rather than
restrict wartime violence.
(relevant pages on file with the Harvard International Law Journal); Joint WHO/UNICEF Team
Report, A Visit to Iraq, Feb. 16-21, 1991, U.N. SCOR, U.N. Doc. S/22328 (1991); Alberto
Ascherio et al., Special Article: Effect of the Gulf War on Infant and Child Mortality in Iraq, 327
NEw ENG. J. MED. 931 (1992); . Lee & A. Haines, Health Costs of the Gulf War, 303 BRiT. MED.
J. 303 (Aug. 3, 1991).
II. INTRODUCTION TO THE LAWS OF WAR
A. Background
Before examining traditional views of the relationship between law
and war, it is necessary to become familiar with the basic terminology
and principles behind these laws. International jurisprudence makes a
distinction between laws governing the resort to force (]us ad belhm)
and laws regulating wartime conduct (jus in bello).5Jus in belo is further
divided into the Geneva laws (the "humanitarian laws"), which protect
specific classes of war victims (such as prisoners of war), and the Hague
laws (the "laws of war"), which regulate the overall means and methods
of combat.
6
The differences between the Geneva laws and the Hague laws reflect
the interests of those nations that dominated the international confer-
ences where these laws were drafted.
7
While the Geneva laws are
characterized by strict, non-derogable prohibitions,
8
the Hague laws
5. See, e.g., SYDNEY D. BAILEY, PROHIBITIONS AND RESTRAINTS IN WAR (1972); GroFFREY
BEST, HUMANITY IN WARFARE: THE MODERN HISTORY OF THE INTERNATIONAL LAW OF ARMED
CONFLICTS (1983). Examples offjts ad bellum include the Pact of Paris, or Kellogg-Briand Pact,
and the U.N. Charter. The former condemns the use of war as an instrument of national policy.
The General Treaty for the Renunciation of War, Aug. 27, 1928, art. 1, 46 Star. 2343, 94
L.N.T.S. 57 [hereinafter Kellog-Briand Pact]. The latter bars the "threat or use of force against
... any state." U.N. CHARTER art. 2, pars. 4.
6. The Hague laws were drafted at the turn of the 20th century. See Convention \'ith Respect
to the Laws and Customs of War on Land,July 29, 1899, 32 Stat. 1803, 1 Bevans 247 [hereinafter
1899 Hague Convention]; Convention Respecting the Laws and Customs of Wat on Land, Oct.
18, 1907, 36 Star. 2277, 1 Bevans 631 [hereinafter 1907 Hague Convention]. The Geneva laws
derive from several later treaties including: Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S.
31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135;
Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6
U.S.T. 3516, 75 U.N.T.S. 287. In 1977, the Geneva Conventions were supplemented by two
Additional Protocols: Protocol I Additional to the Geneva Conventions of 12 August 1949,
Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125
U.N.T.S. 3, 16 I.L.M. 1391; Protocol 11 Additional to the Geneva Conventions of 12 August
1949, Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12,
1977, U.N. Doc. A/32/144. Protocol I modified provisions of the Hague laws to restrict certain
customary practices. See W. Hays Parks, Air War and the Law of War, 32 A.F L. REV. 1, 94-225.
These modifications, however, were rejected by the United States (which has refused to ratify the
Protocol) and their efficacy has yet to be tested on the battlefield. See id at 222-24; Leslie H.
Gelb, War Law Pact Faces Objection ofJoint Chiefs, N.Y. TIMES, July 22, 1985, at Al. The Hague
Conventions of 1899 and 1907 thus remain the driving force behind the current laws of war.
The attempt to move beyond the Hague laws, represented by the recent Protocols, will be more
fully discussed in the subsequent Article.
7. See, eg., C.P. Phillips, Air Wafare and Law, 21 GEo. WASH. L. REV. 395 (1953); Parks,
supra note 6.
8. The effectiveness of Geneva laws can be attributed in large part to the fact that they serve
the interests of the more powerful nations. For instance, Geneva laws prevent weaker states from
are vaguely worded and permissive, enabling powerful states to use the
latest military technology with little regard for humanitarian conse-
quences.
9
This Article focuses on the Hague laws; the legal regime that
is least effective and at the same time most critical to the protection
of civilians (hereinafter, the term "laws of war" will refer only to the
Hague laws).
The common rationale for the laws of war is the desire to humanize
war by balancing military necessity with concerns for humanity. The
fundamental principles behind these laws, distinction and proportion-
ality, revolve around the need to maintain this balance.
10
The principle
of distinction requires belligerents to distinguish between military and
civilian targets, and to attack only the former. The principle of pro-
portionality requires belligerents to refrain from causing damage dis-
proportionate to the military advantage to be gained.
It is important to understand that the development of these legal
principles did not introduce restraint or humanity into war. War has
long been limited largely by factors independent of the law. For com-
plex military, political, and economic reasons, belligerents tend to use
the minimal force necessary to achieve their political objectives." Force
beyond that point-gratuitous violence-wastes resources, provokes
compensating for military disadvantage by threatening to mistreat enemy soldiers and civilians.
Iraq's threats to mistreat Coalition civilians and P.O.W.s, ultimately abandoned after strong
international condemnation, represented just such an attempt to overcome its relative military
weakness. See John Kifner, Confrontation in the Gulf, N.Y TIMES, Aug. 19, 1990, 1, at 1. The
desire of powerful nations to deter such practices, in addition to the public outrage against the
Holocaust and related atrocities, led to the prohibitions protecting war victims embodied in the
Geneva Conventions. See, ag., Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, Aug. 12, 1949, supra note 6, art. 3, 6 U.S.T. at 3116-18,
75 U.N.T.S. at 32-34; Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, supra note 6, art. 3, 6 U.S.T. at
3220-22, 75 U.N.T.S. at 86-88; Convention Relative to the Treatment of Prisoners of War, Aug.
12, 1949, supra note 6, art. 3, 13, 6 U.S.T. at 3318-20, 3328, 75 U.N.T.S. at 136-38, 146;
Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, supra
note 6, art. 3, 6 U.S.T. at 3518-20, 75 U.N.T.S. at 288-90.
9. See William V. O'Brien, The Meaning of "Military Necessity" in International Law, I WORLD
POLtrY 109 (1957) [hereinafter O'Brien, Military Necessity]; Myres S. McDougal & Florentino P.
Feliciano, International Coercion and World Public Order:. The General Principles of the Law of War, 67
YALE L.J. 771, 810 (1958).
10. See generally JEAN PscrEr, DEVELOPMENT AND PRINCIPLES OF INTERNATIONAL HUMANI-
TARIAN LAw (Nijhoff Publishers ed. & trans., 1985) (1982).
11. This reflects the traditional understanding, articulated by Karl von Clausewitz, that war
is the extension of politics by other means. As such, the rules of politics apply in war, albeit in
modified form:
The smaller the sacrifice we demand from our adversary, the slighter we may expect his
efforts to be to refuse it to us. The slighter, however, his effort, the smaller need our own
be. Furthermore, the less important our political object, the less will be the value we attach
to it and the readier we shall be to abandon it.
KARL VON CLAUSEWTZ, ON WAR 9 (O.J. Marthijs Jolles trans., 1943). See also PicEr, supra
note 10, at 31.
retaliation, invites moral condemnation, and impedes post-war rela-
tions with the enemy nation.
12
These concepts are embodied in the
"time honored military concept of 'economy
of force'," of which, ac-
cording to former Chairman of the Joint Chiefs of Staff, General
George S. Brown, "[the law of 'proportionality' is simply a legal
restatement."13
The crucial question then becomes whether the laws of war actually
limit military conduct beyond the inherent restraints dictated by nar-
row military self-interest. And if not, what purpose do they serve?
B. The Role of Law in War
To most, law and war occupy mutually exclusive terrain. As Cicero
wrote, "inter arma silent leges" (in time of war the law is silent).
14
Law
implies order and restraint; war epitomizes the absence of both. It is
precisely when the legal system fails that conflict turns to violence.
12. One military commentator has noted, "It is very dubious whether most of the atrocities
committed and threatened in recent wars have not been military blunders. Atrocities embitter,
and threats frighten the enemy population into prolonged resistance. Decent treatment of pris-
oners encourages surrender." ERNST H. FEILCHENFELD, PRISONERS OF WAR 97 (1948). This
point is borne our by a cursory examination of World War II. German treatment of civilians in
occupied territory during World War II spurred active resistance, making these areas harder to
control. See McDougal & Feliciano, supra note 9, at 812. The history of terror bombing and
oppressive occupation policies reveals that these policies are frequently counterproductive. See e.g.,
ALEXANDER DALsN, GERNMA' RULE IN RussIA, 1941-1945 70-75 (1957); William V. O'Brien,
Legitimate Military Necessity in Nuclear War, 2 WORLD POLITY 35, 56-58 (1960). But see THiu
UNITED STATES STRATEGIC BOMBING SURVEY, SUMMARY REPORT (EUROPEAN WAR), at 11-12
in THE UNITED STATES STRATEGIC BOMBING SURVsYS (Air University Press ed., 1937) (1945)
[hereinafter BOMBING SURVEY) (stating that "studies show that the morale of the German people
deteriorated under aerial attack .... However, dissatisfied as they were with the war, the German
people lacked either the will or the means to make their dissatisfaction evident.")
13. DEPARTiENT OF THE AIR FORCE, JUDGE ADVOCATE GENERAL ACTIVITIES: INTERNA-
TIONAL LAW-THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS 1-12 (1976) Sre also
McDougal & Feliciano, supra note 9, at 811-13; W.T. Mallison, Jr., The Laws of War ad the
Juridical Control of Weapons of Mass Destruction in General and Limited Wars, 36 GEO. WASH. L.
REV. 308, 314-315 (1967); JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR
VICsS 30 (1975).
Robert E. Osgood offers the following definition of the principle of economy of force:
It prescribes that in the use of armed force as an instrument of national policy no greater
force should be employed than is necessary to achieve the objectives toward which it is
directed; or stated in another way, the dimensions of military force should be proportionate
to the value of the objectives at stake.
ROBERT E. OSGOOD, LIMITED WAR: THE CHALLENGE TO AMERICAN STRATEGY 18 (1957). This
principle coincides almost exactly with the principle of "military necessity," which has provided
the foundation for the laws of war. "Military necessity consists in all measures immediately
indispensible and proportionate to a legitimate military end, provided they are not prohibited
by the laws of war or by the natural law, when taken on the decision of a responsible commander,
subject to judicial review." O'Brien, Military Necessity, supra note 9, at 138.
14. Quoted in QUINCY WRIGHT, A STUDY OF WAR 863 (1965) (citation omitted).
Law may act to deter war, but it has no practical role once the fighting
has
begun.
15
Yet, attempts to regulate war are as old as war itself. From ancient
societies until today, nations have purported to limit the conduct of
war with legal codes. Proponents of such efforts assume that bringing
war within the bounds of rational rules may somehow "humanize" war
and contain its brutalities. The history of war, however, reveals that
the development of a more elaborate legal regime has proceeded apace
with the increasing savagery and destructiveness of modern war.
16
Nonetheless, succeeding generations continue to call for more laws,
without examining, or even understanding, the nature of the legal
structure upon which they place their humanitarian hopes.
This apparent paradox may be explained, albeit in simplified form,
by the different interests and motives of those who call for laws of war
and those who formulate and implement such laws. To the general
public, the laws of war should address our humanitarian aspirations
and impose some form of restraint, even if minor, on the forms that
war may legitimately take. Perhaps the foremost international jurist of
his time, Hersch lauterpacht makes this clear:
We shall utterly fail to understand the true character of the law
of war unless we are to realize that its purpose is almost entirely
humanitarian in the literal sense of the word, namely to prevent
or mitigate suffering and, in some cases, to rescue life from the
savagery of battle and passion. This, and not the regulation and
direction of hostilities, is its essential purpose.'
7
Given this motivation, it is not surprising that public agitation for
legal regulation tends to be renewed on the heels of war.'
8
As Michael
15. General MacArthur was fond of saying, "You can't control war; you can only abolish it."
Phillips, supra note 7, at 421. Most scholars dispute this simplistic division between law and war.
War need not be viewed as distinct from peace, but rather, "[i]t is more realistic in the light of
the complex and multifarious nature of international conflict to regard war as the upper extremity
of a whole scale of international conflict of ascending intensity and scope." OsGooD, supra note
13, at 20. See also Philip C. Jessup, Should International Law Recognize an Intermediate Statae Between
Peace and War?, 48 Ams. J. INT'L L. 98 (1954). Accordingly, it makes little sense to speak of an
abstract point beyond which there is no law. See generally DAviD KENNEDY, INTERNATIONAL
LEGAL STRUCTURES 417-482 (1986).
16. See, eg., WRIGHT, sUpra note 14 at 370-71 (noting the increasing severity of war); BEsT,
supra note 5, at 57-59.
17. Hersch Lauterpacht, The Problem of the Revision of the Law of War, 1952 BRIT. Y.B. INT'L
L. 360, 363-64. Similarly, Josef L. Kunz emphasizes that "the whole law of war, including the
norms regulating its actual conduct, is humanitarian in character; it is in the truest sense a part
of the law for the protection of human rights." Josef L. Kunz, The Laws of War, 50 Am'. J. INT'L
L. 313, 322 (1956).
18. See WRIGHT, supra note 14 at 1079 (cataloguing the peace movements following conflicts
from ancient times through World War I).
Walzer comments, "[wlar is so awful that it makes us cynical about
the possibility of restraint, and then it is so much worse that it makes
us indignant at the absence of restraint."
19
Thus, the Hague Peace
Conferences followed a half century of intensifying conflict among the
emerging European nation-states in the nineteenth century; the League
of Nations and Kellogg-Briand Pact (which unsuccessfully sought to
ban war outright) followed World War I; the Geneva Conventions
followed World War II; and the 1977 Protocols to these Conventions
followed the Vietnam War.
Yet the noble sentiments that prompted this expansive body of laws
have only selectively penetrated the substance of the laws themselves.
Notwithstanding public pressure to limit the horrors of war, the
diplomats who negotiated the laws and the soldiers who implemented
them structured a permissive legal regime. Despite the humanitarian
rhetoric, military concerns have dictated the substantive content of the
laws of war.
National governments, conceiving their sovereign interests narrowly,
have proven unwilling to accept any restrictions, legal or otherwise, on
their ability to deploy the level of military power they deem necessary
to uphold national security.
20
The structured impotence of the laws of
war illustrates a variation of the "prisoners' dilemma": what makes
sense for the world, collectively, appears different when viewed through
the prism of national self-interest.
C. The Legitimating Role of Law
While the laws of war impose no substantive restraints on pre-ex-
isting customary military practices, they nevertheless have an impact
on war. The mere belief that law places humane limits on war, even if
factually mistaken, has profound consequences for the way people view
war, and therefore the way that war is conducted. The credibility of
laws of war lends unwarranted legitimacy to customary military prac-
tices. Acts sanctioned by law enjoy a humanitarian cover that helps
shield them from criticism. As one commentator warned, "[p~recisely
because aggression in its crudest form is now so universally con-
demned, many of the assaults that are made will be dressed up in some
more respectable garb .... [Blecause public opinion is itself so con-
19. MICHAEL WALzER, JUST AND UNJUST WANS: A MoRAL ARGUMENT WITH HisTOrIcAL
ILLUSTRATIONS 46 (2d ed. 1992).
20. Summarizing this frequently-stated concern, one military historian has noted that "[1]n
the simplest terms, nations do not legislate self-denying restrictions on those weapons and
techniques that they judge their survival to depend upon." Townsend Hoopes, Conments, in LAW
AND RESPONSIBILITY IN WARFARE: THE VIETNAM EXPERIENCE 142 (Peter D. Trooboff ed.,
1975) [hereinafter LAw AND RESPONSIBIMTY].
fused, aggression may secure its fruits without paying the deserved
penalty in international goodwill."
21
The "respectable garb" with
which belligerents have dressed their assaults is precisely the laws
themselves. By legitimating conduct, the laws serve to promote it.
Law legitimates conduct on two levels. Because people generally
view compliance with "the law" as an independent good, acts are
validated by simply being legal. In particular, sovereign conduct that
complies with the law will appear more legitimate than that which
violates it.
22
Nations acknowledge the power of this form of legitima-
tion by seeking to explain their actions by reference to law.
23
According
to a former Legal Advisor to the U.S. State Department, "[llegal
justification is part of the over-all defence [sicl of a public decision.
24
Proponents of Critical Legal Studies ("CLS")
25
identify a deeper sense
of legitimation.
26
They argue that law functions ideologically to both
reinforce "shared values" and to impress upon people a sense of obli-
gation to the existing order.
27
More than simply supporting or deter-
ring a particular act, law influences the public perception of an act by
imbuing it with the psychic trappings of lawfulness. In this way, law
helps condition people to accept the prevailing distribution of social
and political power, which in turn reinscribes its hierarchies into the
law. These effects are by their nature hidden; the contingent, malleable
power relations that produce law are made to seem natural, neutral,
and inevitable.
28
In essence, this legitimation theory involves a two
21. EVAN LUARD, PEACE AND OPINION 53 (1962). See generally id. at 51-68.
22. See generally ROGER FISHER, INTERNATIONAL CONFLICT (1969); Louis HENKIN, How
NATIONS BEHAVE (1968); Thomas M. Franck, Legitimacy in the International System, 82 Am. J.
INT'L L. 705 (1988).
23. See HENKIN, sipra note 22, at 31-41.
24. Abram J. Chayes, The Cuban Missile Crisis, in INTERNATIONAL LAW: A CONTEMPORARY
PERSPECTIVE 340, 344 (Richard A. Falk et al. eds., 1985). Chayes's reflections on this crisis
emphasize the importance of legitimating U.S. conduct under international law.
25. For background reading on critical legal thought, see generally THE POLITICS OF LAW: A
PROGRESSIVE CRITIQUE (David Kairys ed., 1982); CRITICAL LEGAL STUDIES (Allan C. Hurchin-
son ed., 1989).
26. See generally Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 93-95 (1984).
27. This perspective maintains that law legitimates certain acts not only on a concrete and
conscious level, but more importantly on a deeper, psychic level where people's beliefs are formed
and molded, "the legal system is an important public arena through which the State attempts-
through manipulation of symbols, images and ideas-to legitimize a social order that most people
find alienating and inhumane." Peter Gabel & Paul Harris, Building Power and Breaking Images:
Critical Legal Theory and the Practice of Law, 11 N.Y.U. REV. L. & SOC. CHANGE 369, 370
(1982-83).
28. CIS uses the term "reification" to describe the process whereby belief in law limits one's
ability to analyze or even perceive the social injustice of existing institutional arrangements by
investing these institutions with a quality of inevitability: "[Ilaw, like religion and television
images, is one of these clusters of belief ... that convince people that all the many hierarchical
relations in which they live and work are natural and necessary." Robert W. Gordon, New
Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, supra note 25,
stage process in which law is internalized as belief and belief leads to
compliance.
Whereas national law legitimates the domestic social order, the
international legal regime reflects and reifies the status, rights, and
obligations of states.
29
Here again, law operates to shape discourse and
lends credence and inevitability to existing arrangements.
30
In the
context of war, the basic fact that nations purport to respect the rule
of law helps protect the entire structure of war-making from more
fundamental challenges. While the laws themselves speak to sovereign
nations, their psycho-social effects are visited upon the public at large.
A critical understanding of international law compels a reevaluation
of the role of law in deterring wartime atrocities. By endorsing military
necessity without substantive limitations, the laws of war ask only that
belligerents act in accord with military self-interest.
31
Belligerents who
meet this hollow requirement receive in return a powerful rhetorical
tool to protect their controversial conduct from humanitarian chal-
lenges.
32
The notion that humanitarian rhetoric can subvert its stated purpose
raises several important questions: How does the legal hierarchy of
at 287. See also Peter Gabel & Jay 1A. Feinman, Contract Law as Ideology, in THE PouTrcs OF
LAW: A PROGRESSIVE CRITIQUE, supra note 25, at 172-78.
29. Customary practices, which generally include the power of sovereign nations to control
the day-to-day lives of their inhabitants, are harder to challenge when ratified by law. "A quick
look at the 'rules' of international law shows why governments love international law ....
International law . . . confers authority to control entry and exit, to establish police control, to
determine economic structure, to tax, to regulate, and to reinforce in many other ways the power
and legitimacy of government." Phillip R. Trimble, Review Essay: International aw, World Order,
and Critical Legal Studies, 42 STAN. L. REv. 811, 833 (1990).
30. International law legitimates the hierarchies through which power is presently distributed:
In a society in which power is the overriding consideration it is the primary function of law
to assist in maintaining the supremacy of force and the hierarchies established on the basis
of power and to lend to such a system the respectability and sanctity of law. In a variety of
ways, international law serves these purposes.
GEORG SCHWARZENBERGER, POWER POLITICS: A STUDY OF INTERNATIONAL SoCIETY 203
(1951).
31. Hays Parks, Special Assistant for Law and War Matters in the Office of the Judge Advocate
General of the U.S. Army, underscores this point:
Lots of people came out of Vietnam thinking things were illegal when they were not ....
It has been very important to get commanders to realize that there's a crucial distinction
between political decisions and the law. I've given hundreds of lectures on how we could
have done in Vietnam everything we did in Iraq, but that policy, not law, restricted us.
Keeva, supra note 1, at 56-57. The Department of Defense concluded at the end of the Gulf
War: "Adherence to the law of war impeded neither Coalition planning nor execution; Iraqi
violations of the law provided Iraq no advantage." D.O.D. REPORT, supra note 2, at 632.
32. The effectiveness of the law in this respect has not been lost on military lawyers. One
journalist, after interviewing many of the Pentagon's top lawyers following the Gulf War,
concluded that the commanding officers "have come to realize that, as in the relationship of
corporate counsel to CEO, the JAG's (military law officer's] role is not to create obstacles, but
to find legal ways to achieve his client's goals--even when those goals are to blow things up and
kill people." Keeva, supra note 1, at 59.
sovereign over individual interests affect the perception of war? How
does legal language influence popular attitudes towards wartime vio-
lence? How does the law's sanction affect public support for military
conduct? Do these effects translate into more or less public pressure
on belligerents to adhere to humanitarian standards?
These questions have no clear, empirically based answers.
33
However,
the importance of public support for war, coupled with the growing
stature of international legal rhetoric, validates the search for a critical
understanding of the legitimating effects of law. Moreover, the capacity
of the laws of war to subvert their own humane rhetoric carries an
implicit warning for future attempts to control wars: the promotion of
supposedly humane laws may serve the purposes of unrestrained vio-
lence rather than of humanity.
III. THE LAWS OF WAR IN HISTORY
A. The Continuity of Past and Present Laws of War
1. The Modern View
Modern legal scholars generally adhere to the view that past societies
conducted wars without law, leaving the strong free to devastate the
weak.
34
According to this view, as civilization progressed through the
Enlightenment, the laws of war balanced the traditional demands of
military necessity with developing considerations of humanity. This
process culminated in the codification of the modern laws of war in
the nineteenth century, which supposedly achieved a decisive humani-
tarian advance from earlier custom and practice, bringing the horrors
of war under the rule of law.
3 5
This standard view denies and distorts the historical record. In fact,
belligerents throughout history have created and recognized war codes.
These laws, like the modern laws of war, failed to impose humanitarian
33. The effects of legitimation are almost impossible to measure. See Alan Hyde, The Concept
of Legitimation in the Sociology of Law, 1983 Wis. L. REv. 379, 426 (1983) (arguing that "[rthe
concept of legitimation . . . has no clear operational meaning, nor agreed[-] upon empirical
referent."). But see Gordon, supra note 26, at 92 n.85 (recognizing legitimation as a general
explanatory tool).
34. See, e.g., RICHARD I. MILLER, THE LAW OF WAR (1975). Jean Pictet, a prominent scholar
with the International Committee of the Red Cross, noted that "[i]n the earliest human societies,
what we call the law of the jungle generally prevailed; the triumph of the strongest or most
treacherous was followed by monstrous massacres and unspeakable atrocities." PicrEr, supra note
10, at 6.
35. See, e.g., PicrEr, supra note 10, at 25-27; HILAIRE MCCOUBREY, INTERNATIONAL Hu-
MANITARIAN LAw 1-21 (1990); GUZA HERCZEGH, DEVELOPMENT OF INTERNATIONAL HUMANI-
TARIAN LAW 56-83 (Lajos Czank ed. & Sandor Simon trans., 1984); ROBERT EMMErT MOFFIT,
MODERN WAR AND THE LAWS OF WAR (1973).
limits on military action. By ignoring these consistent historical
trends, the modern view falsely promotes the present laws of war as a
humanitarian break from the "savage" past.
2. Ancient Legal Codes
A cursory review of history contradicts the view that ancient wars
were lawless.
36
Ancient societies had legal codes with humanitarian
provisions similar to those found in the modern laws of war, including
requirements that belligerents distinguish between combatants and
civilians, spare prisoners of war, and avoid inflicting undue suffering.
37
However, these legal standards failed to prevent the frequent commis-
sion of wartime atrocities.
38
B. Laws of War Before the Modern Era
The modern laws of war claim precedent in the chivalric practices
of Medieval Christian Europe. A more critical view of this era, however,
finds the same coexistence of law and atrocities.
39
The development of
the "just war" doctrine in the Middle Ages dovetailed neatly with the
standard medieval practice of slaughtering the enemy.
40
Only when its
36. See, ag., WRIGHT, supra note 14, at 101-65.
37. In the second millennium B.C., the wars between Egypt and Sumeria were governed by
a complex set of rules obligating belligerents to distinguish combatants from civilians and
providing procedures for declaring war, conducting arbitration, and concluding peace treaties. See
generally PicrET, supra note 10, at 7-8; 1 THE LAW OF WAR: A DocubIsNTARY HISTORY, 3-15
(Leon Friedman ed., 1972) [hereinafter DOCUMENTARY HISTORY]. The Hindu civilization in
India produced the Book of Mann, whose regulations of land warfare parallel much of the Hague
regulations of 1907 on the laws and customs of war. Its provisions prohibit use of weapons that
cause undue suffering and killing of unarmed combatants and civilians: "let him not strike...
one who is naked, nor one who is disarmed, nor one who looks on without taking part in the
fight." Id. at 3 (quoting Book of Manu bk.7, art. 92). Chinese warlords adhered to a customary
framework of chivalric rules designed to spare the innocent, including civilians and prisoners of
war. See SUN Tzu, THE ART OF WAR 76 (Samuel B. Griffith trans., 1963). The Israelites also
recognized clearly prescribed laws of war. See Deuteronomy 20:13-17 (King James). Ancient Greeks
and Romans also followed customary laws of war. See DOCUMlENTARY HISTORY, spra at 5.
38. See 3 HUGO GRoTIUs, THE RIGHTS OF WAR AND PEa.CE 323-33, 359-64 (A.C. Campbell,
trans., 1901) (1625); Wright, supra note 14, at 872-75.
39. As the Church grew to exercise state power in Europe, it abandoned its early commitment
to pacifism. See, e.g., WiLmLAM BELCHOR BALis, THE LEGAL POSITION OF WAR: CHANGES IN
ITS PRACTCE AND THEORY FROM PLATO TO VATTEL 58-59 (Garland Publishing, Inc. 1973)
(1937).
40. See, e.g., Arthur Nussbaum, Just War-A Legal Concept, 42 MICH. L. REv. 453, 455-467
(1943); Joachim von Elbe, The Evolution of the Concept ofthe Jnst War in International Law, 33 AMt.
J. INT'L L. 665 (1939). Thomas Cajetan, master general of the Dominicans, held that, "injuries
caused not only to the combatants but even to other members of the state against which one is
waging a just war, are free of guilt .... One is not obliged to determine if some citizens are
unjust and others innocent, because the whole state is presumed to be the enemy and it is for
this reason that the whole state is condemned and ravaged." PiCTET, supra note 10, at 15.
Fighting under the banner of a "just war," the Crusaders committed regular massacres of
political and economic interests were at risk did the Church attempt
to regulate conduct during war. For example, in 1139, the Church
intervened to protect its patron class, wealthy knights and nobles,
denouncing the crossbow as deadly and "odious to God" because it was
used by peasants to cut down knights and nobles at long range.
41
Although the modern view deplores an overt license to massacre, it
nonetheless claims romanticized chivalric ideals, such as justice and
mercy, as its humanitarian ancestors.
42
This view obscures the fact that
chivalric rules actually served to protect the lives and property of
privileged knights and nobles, entitling them to plunder and kill
peasant soldiers, non-Christian enemies, and civilians of all religions
and ethnicities.
43
The laws of war remained tied to religious particularism until the
Enlightenment, when a prominent group of jurists and theologians,
the "publicists," helped shift the source of legal authority from God
to reason.
44
In De jure Belli ac Pacis Libri Tres, a three-volume work on
the laws of war, Hugo Grotius concluded that the practice of states
reflected natural law through the reasoned judgment of men.
45
Most
important from the modern perspective, he insisted that war should
be governed by a strict set of laws.
4 6
Grotius maintained that violence
beyond that necessary to secure the military goal was not justified, and
that suffering should be minimized within the parameters of mill-
"infidels." See generally MAjID KHADDURI, WAR AND PEACE IN THE LAW OF ISLAM (1955); JAMES
A. BRUNDAGE, MEDIEVAL CANON LAW AND THE CRUSADER (1969).
41. See MYREs S. McDOUGAL & FLORENTINO P. FEUCIANO, LAW AND MINIMUM WORLD
PUBLIC ORDER: THE LEGAL REGULATION OF INTERNATIONAL COERCION 615 (1961) (citation
omitted). In the 10th and 11th centuries, the Church issued a number of "Peace of God"
proclamations prohibiting, fbr example, attacks upon priests or their guests, seizure of ecclesias-
tical lands, and combat on Christian holidays. See DOCUMENTARY HISTORY, supra note 37, at 9.
42. See, eg., Johan Huizinga, The Political and Military Signifiance of Chivalric Ideas in the Late
Middle Ages, in MEN AND IDEAS 196 (James Holmes & Hans van Marie trans., 1984); Waldemar
A. Solf, Protection of Civilians Against the Effects of Hostilities Under Customary International Law and
Protocol 1, 1 AM. U. J. INT'L L. & POL'Y 117, 119 (1986).
43. See M.H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 50 (1965); G.D. SQUIBB,
THE HIGH COURT OF CHIVALRY (1959). In effect, the code of chivalry created a guild of warriors
with legal authority to pillage. One noted historian of the Middle Ages concludes that "beneath
the high idealism of chivalric honor.... t]he occasional feat of arms is a diversion from the
more serious business of pillage and destruction, and chivalry owes more to the pen than the
sword." RICHARD BARBER, THE KNIGHT AND CHIVALRY 210 (1974).
44. See, eg., IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 3-18
(1963); Juuus STONE, LEGAL CONTROL OF INTERNATIONAL CONFLICT 3-18 (1954); David
Kennedy, Primitive Legal Scholarship, 27 HARV. INT'L L.J. 1 (1986). The early publicists, like the
Spanish Dominican Francisco de Vitoria, continued to use the "just war" framework but univer-
salized its principles. FRANCISCO DE VITORIA, DE INDIs ET DE JURE BELLI REFLECTIONES
(James Scott ed. & Ernest Nys trans., Carnegie Institution of Washington 1917) (1557).
45. See H. Lauterpacht, The Grotian Tradition In International Law, 1946 BRIT. YB. INT'L L.
1, 15; George G. Wilson, Grotius: Law of War and Peace, 35 AM. J. INT'L L. 205 (1941).
46. GROTIUS, supra note 38, at 291.
Harvard International Law Journal / VoL 35
tary requirements.
47
A century later, Jean-Jacques Rousseau reaffirmed
these principles, stressing that "the nature of things" required bellig-
erents to distinguish combatants from non-combatants and limit at-
tacks to armed
enemies.
48
The modern view hails the publicists for laying the foundation of
the laws of war, a triumph of reason over barbarity.
49
But the triumph
was in word only., The enlightened theories of the publicists did not
influence the practice of emerging European nation-states busily en-
gaged in the imperial conquest, massacre, and enslavement of millions
in the Americas, Africa, and Asia. The modern view, holding that the
work of the publicists divides a lawless age of warfare from the modern
age of legal restraint, serves to mystify and legitimate the current legal
regime. A more accurate portrayal would place the laws of war within
a historical continuum of unsuccessful attempts to limit wartime con-
duct.
IV. THE TRIUMPH OF CODIFICATION IN THE
NINETEENTH CENTURY
A. The Advent of Modern War
Until the nineteenth century, the residual remains of chivalry, the
non-binding theoretical treatises of the publicists, and the slow accre-
tions of customary restraints derived from state practice comprised the
legal framework governing conduct in war. However, the changing
nature of warfare, spurred by technological advancement and height-
ened rivalries between newly consolidated nation-states, revealed the
impotence of these restraints and compelled their revision.
50
The
French Revolutionary and Napoleonic wars heralded the dawn of an
47. Grotius conceded that any act required by military necessity was per se legal. For emmple,
Grotius wrote that military necessity would permit a belligerent to injure property and persons
of an enemy population and even to kill those who had surrendered unconditionally. Sce id at
328-30.
48. Rousseau turned to reason as the basis for the law:
Since the aim of war is to subdue a hostile state, a combatant has the right to kill the
defenders of that state while they are armed; but as soon as they lay down their arms and
surrender, they cease to be either enemies or instruments of the enemy; they become simply
men once more, and no one has any longer the right to take their lives . . . . [M7Jar gives
no right to inflict any more destruction than is necessary for victory. These principles were
not invented by Grotius, nor are they founded on the authority of the poets; they are derived
from the nature of things; they are based on reason.
JEAN-JACQuES ROUSSEAU, THE SOCIAL CONTRACT 57 (faurice Cranston ed. & trans., Penguin
Books 1968) (1762).
49. See, ag., F~iTS KAISHOVEN, CONSTRAINTS ON THE WAGING OF WAR (1987); Picr-r,
50. See, ag., WRIGHT, sRpra note 14, at 338-46; O'Brien, Military Necessity, stpra note 9, at
109.
"epoch of 'unbridled ferocity'."
51
The birth of the nation-at-arms, in
which entire populations and industrial bases were mobilized in sup-
port of the war effort, blurred the combatant/non-combatant distinc-
tion and jeopardized
any civilian claims to immunity.
52
The unfolding of these developments during the heyday of legal
positivism led to international conferences aimed at codifying the laws
and customs of warfare. Before examining the fruits of these confer-
ences, it is helpful to understand the contemporaneous theoretical
debate over codifying the laws of war.
B. Kreigsraison or the Rule of Law?
Much opposition to codification came from supporters of a doctrine
called kreigsraison, associated primarily with German statesmen and
officers. Advocates of kreigsraison argued that the demands of military
necessity should always override the obligations of international
law.
53
While some even lauded war as a good in itself,
54
most argued that a
ruthless war was quicker and therefore more humane.
55
The moderate
proponents of kreigsraison reasoned that such tactics were consistent
with law 99 times out of 100, and in the rare case when survival or
victory required violating law, it was unreasonable and unrealistic to
prohibit such violations.
56
In the words commonly attributed to Ger-
51. PicrEr, sitpra note 10, at 24 (quoting French Field Marshall Foch).
52. The 19th century saw the end of kreigsspeil, or "play war," as von Clausewitz derisively
termed the "dynastic jousting" between small professional armies that occurred between 1648
and 1792. O'Brien, Military Neressity, supra note 9, at 132. In modern wars, enormous conscript
armies replaced the small ranks of professionals, and casualty rates skyrocketed for non-combat-
ants. Those who remained at home were no longer safe from war's destructive reach. See WRIGHT,
53. The term derives from the German phrase "kreigsraison gebt vor kreigsmanier," which
translates as "the necessities of war are prior to the customs of war." See, e.g., BEsT, supra note 5,
at 145-75; O'Brien, Military Necessity, supra note 9, at 118-28.
54. According to Prussian Field Marshal von Moltke, "perpetual peace is a dream, and not
even a beautiful dream. War is an element of the divine order of the world. In it are developed
the noblest virtues of man: courage and self-denial, fidelity to duty and the spirit of sacrifice ....
Without war, the world would stagnate and lose itself in materialism." BaST, supra note 5, at
145 (quoting von Moltke).
55. The 1902 German Army manual on land warfare asserted that "certain severities are
indispensible to war," and that humanity was best served by the "ruthless application of them."
THE WAR BOOK OF THE GERu'eNs GENERAL STAFF 72 (J.H. Morgan trans., 1915) [hereinafter
THE WAR BOOK]. In a similar vein, Prussian General von Hartmann wrote a series of influential
articles in which he derided the growing humanitarian trend in the laws of war, asserting that
strict enforcement of military discipline and efficiency ultimately achieved the most humane
results. See O'Brien, Military Necessity, supra note 9, at 121; BEST, supra note 5, at 145.
56. Lueder, one of Germany's foremost jurists, wrote that necessity was almost always com-
patible with law, but in the rare case of conflict, "when the circumstances are such that the
attainment of the object of the war and the escape from extreme danger would be hindered by
observing the limitations imposed by the laws of war," necessity must triumph. 4 HOLTZEN-
DORFF'S HANDBUCH 255, reprinted in 2 JOHN WSTLAKE, INTERNATIONAL LAW 115 (1907).
man Chancellor von Bismarck, "What leader would allow his country
to be destroyed because of international law?"
Kreigsraison provoked a storm of condemnation from contemporary
international law scholars who deplored its apparent scorn of their
cherished belief in the humanizing force of positive law.
57
Accordingly,
these scholars were outraged when, three years after the first Hague
Conference, Germany produced an army manual steeped in the spirit
of kreigsraison. One passage that sparked particular concern read as
follows:
A war conducted with energy cannot be directed merely against
the combatant forces of the Enemy State and the positions they
occupy, but it will and must in like manner seek to destroy the
total intellectual and material resources of the latter. Humanitar-
ian claims, such as the protection of men and their goals, can only
be taken into consideration in so far as the nature and object of
war
permit.
58
Ironically, the German manual accurately described the very prac-
tices that would come to dominate modern wars conducted within the
laws of war. Thus, while the codification of the laws of war represented
a formal rejection of kreigsraison, it did not signify a substantive ad-
vance towards the humanitarian goal of restraining war conduct. The
distinction paramount in the minds of legal scholars between
kreigsraison and the laws of war disappears in the actual practice of war.
The elasticity of the term "military necessity" under the laws of war
has enabled belligerents to legally justify virtually any conduct other-
wise available to proponents of kreigsraison.
59
Lueder gave two reasons for his position: first, the right of states to self-preservation is prior to
all obligations under international law; and second, law should reflect the practical reality that
military commanders will always choose to violate the law if necessary to avoid defeat. See O'Brien,
Military Necessity, supra note 9, at 122. Following a similar line of reasoning, Alphonse Rivier, a
noted Swiss jurist, contended that when its survival was at stake, a state was actually "obliged,
for the salvation of its country, to violate the rights of another state." id at 124.
57. JAMES W. GARNER, STUDIES IN GOVERNMENT AND INTERNATIONAL LAW 261-66 (1943);
STONE, supra note 44, at 352-54.
58. THE WAR BOOK, supra note 55, at 68. Many European law scholars complained that the
German war manual ignored the Hague Conventions, to which Germany was bound by agree-
ment: "It is quite clear that the authors of the German manual regard military effectiveness rather
than considerations ofhumanity the test of the legitimacy of an instrument or measure." GARNER,
supra note 57, at 262. See also STONE, supra note 44, at 352.
59. International law scholars feared that kreigsraison would justify any military act a com-
mander viewed as helpful rather than as actually necessary. GARNER, supra note 57, at 264;
STONE, supra note 44, at 352. Codification of the laws of war has not overcome this problem:
military necessity has proven to be an elastic concept in the hands of diplomats and officers, who
have often interpreted it to mean mere utility. See infra part VLE.2.
Some would argue that even if kreigsraison reaches the same result
as law in almost all concrete situations, it creates an atmosphere
permissive of atrocities.
60
The merit of this argument depends on
whether the mere existence of humanitarian-sounding laws, void of
substantive restraints, influences belligerents to conduct more humane
wars. If so, then the laws of war constitute a humanitarian advance
over kreigsraison. But if, instead, the existence of law enables belliger-
ents to suppress opposition to wartime conduct by cloaking such
conduct in legal legitimacy, or if the law has sidetracked humanitarian
advocates from pursuing their agenda by other, more effective tactics,
then the "triumph" of law over kreigsraison has been costly.
C. The Lieber Code
The United States Civil War gave birth to the first modern codifica-
tion of the laws of war to be officially adopted by a warring belliger-
ent.
61
The Lieber Code, which Lieber modestly described as "short but
pregnant and weighty like some stumpy Dutch woman when in the
family way with coming twins,"
6
2 provided a blueprint for similar
international efforts in the latter half of the century, and has been
widely praised as a humanitarian milestone for implementing the rule
of law in an actual war.
6 3
Despite the widespread praise for its humaneness, Lieber's document
subjects all humanitarian provisions to derogation based on an open-
ended definition of military necessity, and asserts, in the spirit of
kreigsraison, that "[the more vigorously wars are pursued, the better it
is for humanity. Sharp wars are brief."
6 4
The practices that Lieber
explicitly condoned under his definition of military necessity included,
for example, starvation of civilians, bombardment of civilians without
60. Even those who admitted that kreigsraison and the "rule of law" would tend to reach
identical results still bitterly opposed the former approach. Typical is O'Btien's assertion that "the
kreigsraison view is dangerous in its tendency rather than in any avowed intention to induce
lawlessness." O'Brien, Military Necessity, supra note 9, at 127.
61. President Abraham Lincoln officially signed the Lieber Code for the use of the Union Army
in April 1863. The Lieber Code was also known as General Orders No. 100. See RICHARD S.
HARTIGAN, LIEBER'S CODE AND THE LAw Op WAR 1 (1983).
62. Id. at 21.
63. Telford Taylor, a prosecutor at the Nuremberg Trials, calls the Lieber Code "the germinal
document for codification of the laws of land warfare." Telford Taylor, Foreword, in DOCUMENTARY
HISTORY, supra note 37, at xviii. Subsequent international efforts at codification such as the
Brussels Conference of 1874 and the Hague Conferences of 1899 and 1907 borrowed heavily
from the Lieber Code. See, eg., id at 152-54; Draper, supra note 34, at 71. Even the German
General Staff, the intellectual center of kreigsrason, adopted the Lieber Code during the 1870
Franco-Prussian War, providing further evidence that kreigsraison and the rule of law are not as
distinct as international lawyers would suggest. See O'Brien, Military Necessity, supra note 9, at
127.
64. Lieber Code, 1, arts. 14-19, 29 (1863), reprinted in HARTIGAN, supra note 61, at 48-50.
warning, and destruction of all armed enemies and enemy property.
65
The fact that these practices happened to coincide with the conduct of
the Union Army
66
was not lost on James Seddon, the Confederate
Secretary of War, who dismissed the Lieber Code as a biased work that
condoned "a barbarous system of warfare under the pretext of a military
necessity."
67
D. The International Conferences
1. The Saint Petersburg Declaration
In 1868, Czar Alexander II of Russia convoked the first international
conference on the laws of war, for the stated purpose of "alleviating as
much as possible the calamities of war."8 The exalted reputation of
the resulting agreement, the so-called Saint Petersburg Declaration, is
undercut by its modest achievements. For all its humanitarian rhetoric
against using "arms which uselessly aggravate the sufferings of disabled
men,"
69
the Declaration reaffirmed that belligerents were justified in
inflicting "necessary" suffering, in effect acknowledging the primacy of
military necessity.
70
The only binding prohibition forbade the use of
explosive bullets,
71
an unreliable and already obsolete weapon at the
65. Lieber Code, 1, arts. 15, 17, 19, 21, reprinted in id.
66. The tactics employed by General Philip H. Sheridan in the Shenandoah Valley and General
William T. Sherman in his notorious March to the Sea included appropriation and destruction
of civilian property, indiscriminate bombardment in populated areas, and general spreading of
terror. See, eg., JOSEPH T. GLATrHAAR, THE MARCH TO THE SEA AND BEYOND: SHEMAN'S
TROOPS IN THE SAVANNAH AND CAROLINAS CAMPAIGNS 134-55 (1985). When the Mayor of
Atlanta protested General Sherman's evacuation of civilians, Sherman responded: "WMar is cruelty,
and you cannot refine it; and those who brought war into our country deserve all the curses and
maledictions a people can pour out .... " BEST, supra note 5, at 209.
67. HARTIGAN, supra note 61, at 123.
68. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400
Grammes Weight, Dec. 11, 1868, 138 Consol. T.S. 297 [hereinafter St. Petersburg Declaration],
reprinted in THE LAWS OF ARMED CONFLIcTs: A COLLECTION OF CONVENTIONS, RESOLUTIONS,
AND OTHER DocuuENTS 102-03 (Dietrich Schindler & Jiri Toman eds., 1988) [hereinafter
COLLECnoN]. The states attending were Austria-Hungary, Baden, Bavaria, Belgium, Brazil,
Denmark, France, Great Britain, Greece, Italy, the Netherlands, Persia, Portugal, Prussia and the
North German Confederation, Russia, Sweden and Norway, Switzerland, Turkey, and Wurtem-
berg. Id.
69. Id. at 102.
70. The famed prohibition against causing unnecessary suffering was derogable for reasons of
overriding military necessity and thus imposed no practical or legal limit on military action.
Phillips, sipra note 7, at 323. Cf KALSHOVEN, suepra note 49, at 30 (searching in vain for an
example of a state's discarding a militarily useful weapon because it violated the Saint Petersburg
ban on causing unnecessary suffering).
71. St. Petersburg Declaration, reprinted in COLLECTION, Stpra note 68, at 102. At the time,
countries considered these weapons so dangerous to the user that they were no longer manufac-
tured. However, they ultimately proved valuable in the context of aerial warfare. Accordingly, in
1923, states reconsidered and then voided the supposedly permanent ban of 1868. Sd M. W
time. These failures are particularly significant because the Saint Pe-
tersburg Declaration set the tone for future international agreements
on the laws of war.7
2
2. The Brussels Declaration
Fifteen of the world's major powers next sent international law
experts to Brussels in 1874 to draft more comprehensive regulations
for warfare.7
3
Preliminary negotiations eliminated most of the conten-
tious issues from discussion.
7 4
Nevertheless, the delegates managed not
only to reaffirm the vague principles of Saint Petersburg,
7 5
but also to
draft concrete rules regulating the conduct of land warfare. The most
significant rule was the prohibition on bombardment of unfortified or
"open" towns.7
6
This rule merely reflected military utility rather than
notions of humanity. Troops lacked the technology to bombard unde-
fended towns except at very close range, in which case it made more
military sense simply to march in.
7 7
Yet even these rules, which
remained safely within the confines of military necessity, were consid-
ered too "humanitarian" by the great powers, who all refused to ratify
the agreement.
78
The Brussels Conference gained significance only
later, as the basis for the land war code adopted at the Hague Confer-
ence.
79
Royse, AERIAL BOMBARDMENT AND THE INTERNATIONAL REGULATION OF WARFARE 131-32
(1928).
72. The drafters of the Saint Petersburg Declaration set an example to be followed at sub-
sequent international conferences of prohibiting only weapons with no proven military value and
avoiding difficult subjects through vague, non-binding resolutions incapable of imposing practical
limits on conduct. See infra part V (concerning the Hague Conferences).
73. The attending powers were Austria-Hungary, Belgium, Denmark, France, Germany, Great
Britain, Greece, Italy, the Netherlands, Portugal, Russia, Spain, Sweden, Norway, Switzerland,
and Turkey. See Project of an International Declaration Concerning the Laws and Customs of War,
Aug. 27, 1874, 4 Martens Nouveau Recueil (ser. 2) 219 [hereinafter Brussels Declaration),
reprinted in COLLECTION, supra note 68, at 27.
74. For example, Great Britain would not even send a delegate without prior assurance that
naval power would be excluded from the agenda. Britain also refused to consider a limitation on
irregular troops. See ROYsE, supra note 71, at 6-7; see also BEST, supra note 5, at 160-61.
75. See Brussels Declaration, arts. 12, 13(e), reprinted in COLLECTION, supra note 68, at 29.
76. Id., art. 15.
77. Thus, even though artillery bombardment had always been considered a legitimate mili-
tary tactic, artillery engagements were only necessary against fortified towns. See OLIVER LYMAN
SPAULDING ET AL., WARFARE 498 (1925). See also LAssA PRANCIS LAWRENCE OPPENHEIMI,
INTERNATIONAL LAW 281 (Iauterpacht, ed., 4th ed. 1926) [hereinafter OPPENHEIM, INTERNA-
TIONAL LAW]. As American General William Mitchell explained, prior to World War I, "Ihe
one reason why unfortified cities had not been so attacked was because they had no means of
resistance; the hostile armies merely walked in and took charge." RoYsE, supra note 71, at 151.
See generally WESTLAKE, supra note 56, at 77.
78. See COLLECTON, supra note 68, at 25 (noting that "since not all the governments were
willing to accept [the agreement] as a binding convention it was not ratified.").
79. See BEST, supra note 5, at 160-61.
E. A Lesson of Codification
These early attempts to create laws of war reveal the enduring power
of military necessity. When ideals of humanity clashed with military
necessity, as inevitably occurred in all areas critical to protecting civil-
ians, they encountered an immovable force. As a result, any weapon or
tactic that a major power considered necessary, or even potentially
useful, was beyond the reach of legal regulation. Attempts to regulate
these areas inevitably collapsed into deliberate vagueness to disguise
the tragedy of codification-legalized subordination of humanitarian
principles.
V. THE HAGUE CONFERENCES
A closer analysis of the conferences credited with drafting the pre-
eminent laws of war helps to explain the apparent inability of nations
to restrain military necessity. Despite a public outcry for humane limits
on warfare at the turn of the century, the sovereign nations that drafted
the Hague laws were overwhelmingly concerned with protecting their
military interests. Predictably, the resulting laws banned only those
means and methods of combat that had no military utility while
permitting new and destructive technologies, like aerial warfare, to
develop unhindered. In World War I, civilians paid the price for the
Hague Conferences' humanitarian failures.
A. The Primacy of Military Necessity at the Hague Conferences
The Hague Conferences of 1899 and 1907, culminating the process
of codification begun with the Lieber Code, governed conduct in the
wars of the twentieth century. Laws regulating the means and methods
of warfare drafted at the Hague Conferences remain the bedrock of
modern laws of war, and are generally considered by international law
scholars to be the crowning achievement of the effort to humanize war
through law.
80
This reputation conceals the essential fact that Hague
law has failed to result in any concrete humanitarian gains over pre-
existing practice.
8
' Moreover, the reputation serves to legitimate as
humane a legal regime that permits any conduct consistent with
military interests.
As with prior codification of the laws of war, the Hague laws upheld
rather than restricted military necessity. This flowed from a general
80. See supra note 6 for a listing of Hague conventions.
81. Perhaps owing to the self-interested praise of diplomats and jurists and to a lack of critical
attention, the Hague laws have generally escaped the minimal historical critique necessary to
expose the extent of their humanitarian failures. The work of Royse stands as a notable exception;
see generally RoYsE, supra note 71.
reluctance of states to accept limits on sovereign power as well as from
competing interests between individual nations on many issues. As a
result, despite high humanitarian expectations on the part of the
general public, delegates from the assembled nations refused to restrict
the use or development of a single weapon or tactic of military value.
82
In the end, they agreed to respect limits on conduct only if qualified
by the requirements of military necessity, and generally preferred draft-
ing vague, unenforceable humanitarian principles.
B. Public Hope and Official Doubt at the First Hague Conference
The first Hague Conference had its genesis in a letter circulated to
diplomats in Saint Petersburg on August 24, 1898, by Czar Nicholas
II. The Czar proposed an international conference to examine "the most
effectual means of insuring to all peoples the benefits of a real and
durable peace, and, above all, of putting an end to the progressive
development of all armaments .... This conference should be .. .a
happy presage to the century which is about to open.
''83
Coming on the heels of a century of intensifying national and
imperialist conflict, the unexpected Russian proposal provoked a storm
of public and diplomatic reaction. Spurred by a growing peace move-
ment that hailed the Czar as a humanitarian visionary,8
4
lively debate
ensued in newspapers and parliaments throughout the world.
85
Diplo-
mats from Russia's European rivals, however, privately suspected that
the Czar's sudden embrace of pacifism was a ruse to enlist public
82. See generally id
83. FREDRICK W. HoLs, PEACE CONFERENCE AT THE HAGUE 8-10 (1900); THE PROCEED-
INGS OF THE HAGUE PEACE CONFERENCES 14-15 (James B. Scott ed., 1920) [hereinafter
PROCEEDINGS]. Several months later, Russia's foreign minister distributed another letter detailing
a proposed agenda for the conference. The letter divided the agenda into eight basic proposals,
including freezing land and sea forces at existing levels, declaring a moratorium on weapons
development, restricting the use of current means and methods of warfare, and establishing an
international court of arbitration to assist in settling disputes. See JAmsS B. ScoTr, THE HAGUE
PEACE CONFERENCES OF 1899 AND 1907 15 (James B. Scott ed., 1909) [hereinafter ScoTr,
PEACE CONFERENCES]; JOSEPH HODGES CHOATE, THE TWo HAGUE CONFERENCES 9 (1910).
These proposals were unprecedented insofar as they sought international agreement to restrict
weapons of vital importance. The aspirations of previous conferences had been far less ambitious.
See ROYSE, supra note 71, at 127.
84. American peace groups, such as the Quakers, the Universal Peace Union, and the American
Peace Society, urged their members to lobby U.S. officials to support the Russian plan. European
peace activists like W.T. Stead and Frederic Passy, who had a better organized movement than
their American counterparts, used their extensive publishing networks to rally support. See, eg.,
CALIvN DEAniOND DAVIS, THE UNITED STATES AND THE FIRST HAGUE PEACE CONFERENCE
54-63 (1962); see also A HISTORY OF THE PEACE CONFERENCE AT THE HAGUE 5-8 (Perris ed.,
1899) [hereinafter HISTORY].
85. For a survey of the attitude of the press towards the Hague Conference, WILLIAM HULL,
THE TWO HAGUE CONFERENCES 21-27 (1972); 2 ANDREW D. WHITE, THE AUTOBIOGRAPHY
OF ANDREW D. WHITE 251-52 (1919) [hereinafter WHITE, AUTOBIOGRAPHY].
opinion to support measures that would help Russia overcome its
military weakness.
8 6
Historians have since demonstrated that these
suspicions were well-founded. Financial considerations and not human-
ity led the Russian government to seek international restrictions on
weapons development and military expenditures.
8 7
After interviewing
delegates, military officers, and other journalists, a reporter for the New
York Times concluded that "[t~here is not a single prominent diploma-
tist in Europe who believes that the original purpose of the conference
has the slightest chance of realization."
88s
Nevertheless, these nations
preferred to support the proposal rather than to risk the public per-
-ception that they opposed peace.
8 9
By January, 28 nations had agreed
to attend a conference at The Hague.
90
86. After a few days at the Conference, Andrew D. White encountered tremendous mistrust
of Russia's motivations among the European diplomatic corps. He noted chat "among all these
delegates acquainted with public men and measures in Europe, there is considerable distrust of
the intentions of Russia; and, naturally, the weakness of the Russian Emperor is well understood,
although all are reticent regarding it." ANDRE D. WHITE, THE FIRST HAGUE CONFERENCE 8
(1912) [hereinafter WHITE, THE FIRST HAGUE CONFaRENCE]. White reported that Count
Munster, the head of the German delegation, considered calling the conference to be "a political
trick-the most detestable ever practiced." Id. at 63.
Some leaders felt that Russia's actions were not only manipulative, but risked bringing Europe
closer to war than peace. A noted French diplomat remarked, "This proposal for disarmament
will have the result of convincing everyone that war is imminent. It should be noted that peace
projects, general in scope, usually lead to a conflict." 1 PAUL CAMBON, CORRESPONDENCE,
1870-1914, at 438 (1946). Kaiser Wilhelm II also worried that the Russian proposal would "add
not a little to the prospects of war." 1 PRINCE VON BULOW, THE MEMOIRS OF PRINCE VON
BULOW 321 (1931). The Japanese Prime Minister privately, and accurately, speculated to a British
official that failure of the Czar's diplomatic efforts would lead to war with Japan. See, e.g., 1
BRITISH DOCUMENTS ON THE ORIGINS OF THE WAR, 1898-1914, at 221-22 (G.P. Gooch &
Harold Temperly, eds., 1926).
87. Austria was in the process of producing a new rapid-fire field gun that fired rounds at six
times the rate of comparable Russian artillery. Russia's shattered economy simply could not
provide the $50 million necessary to equip its army with the new gun, which was already
standard in the German and French armies. The Czar instead proposed an international conference
on disarmament. See, ag., E.J. DILLON, THE ECLIPSE OF RUSSIA 276-78 (1918); Thomas K. Ford,
The Genesis of the First Hague Peace Conference, 6 POL. SCI. Q. 354, 364 (1936). One historian of
the Hague Conference offers the following harsh but accurate assessment:
The offer to the nations of the world to meet for the purpose of limiting armaments was in
truth a sort of masterpiece of diplomatic finesse, worthy of study by aspiring statesmen of
the future .... The truth was that the peace rescript had been conceived in fear, brought
forth in deceit, and swaddled in humanitarian ideals.
DAVIS, supra note 84, at 46.
88. N.Y TIMES, May 14, 1899, at 19. See also WHITE, AUTOBIOGRAPHY, supra note 85, at
256.
89. Despite private misgivings, diplomats and spokespersons effusively praised the Russian
proposal, even appropriating the language of peace activists. See, e.g., HISTORY, supra note 84, at
6-7. The delegates to the Hague Conference were clearly conscious of the need to cultivate a
good public image while at the same time safeguarding their nations's military interests. Sce, e.g.,
BEST, supra note 5, at 139. The chief German delegate, responding to the need for false
appearances, explained, "[w]e can, in regard to Russia, nor allow the conference to end with an
entire fiasco and must try to cover it with a peacefil-looking cloak." See DAVIS, supra note 84, at
88.
90. Nations sending government representatives were Austria-Hungary, Belgium, Bulgaria,
C. Sovereign Resistance to Military Limitations
In his opening address to the Conference, Baron de Staal of Russia
acknowledged the gulf between public and diplomatic expectations,
but urged the delegates to fulfill a historic opportunity: "The Peace
Conference cannot fail in the mission incumbent upon it; its delibera-
tions must lead to a tangible result which the whole human race awaits
with confidence."
9
' His audience was not receptive.
92
Andrew White,
the head of the United States delegation, privately noted that "since
the world began, never has so large a body come together in a spirit
of more hopeless skepticism as to any good result."
93
Before the Conference even began, the governments of the most
powerful nations had already instructed their respective delegates to
reject limitations on arms.
4
Similarly, the issue of capping military
expenditures was dealt a fatal blow early in the proceedings when
Germany's military delegate declared that the "patriotic" German peo-
ple would not tolerate a reduction in military spending.
95
With no
hope of agreeing on meaningful limitations, the various nations spent
much of the Conference fighting over each other's proposals, with large
powers set against small, land against naval, rich against poor.
96
To put
the best public face on this debacle, the delegates finally drafted the
meaningless platitude that their governments would, in the unspecified
China, Denmark, France, Germany, Great Britain, Greece, Italy, Japan, Luxemburg, Mexico,
Montenegro, the Netherlands, Persia, Portugal, Romania, Russia, Serbia, Siam, Spain, Sweden
and Norway, Switzerland, Turkey, and the U.S. See 1899 Hague Convention, supra note 6, 32
Stat. at 1810-11, 1 Bevans at 251-52.
91. See SCOTT, PEACE CONFERENCES, supra note 83, at 34.
92. See DAVIS, srOra note 84, at 88. Most other delegates viewed their job with embarrassment;
one predicted that the result would be "a first-class burial, attended by all the ceremony that
anyone could desire, but nonetheless a burial." Id at 89 (quoting New York Times, May 21, 1899).
93. WHITE, AUTOBIOGRAPHY, supra note 85, at 256.
94. The U.S. and British delegates were instructed by their governments to reject any attempts
to restrict weapons. U.S. DEPT. OF STATE, INSTRUCTIONS TO THE AMERICAN DELEGATES TO
THE HAGUE CONFERENCE OF 1899, reprinted in SCOTT, supra note 83, at 6-7. See Michael
Howard, Temperamenta Belli: Can War Be Controlled?, RESTRAINTS OH WAR 1, 60-61 (Michael
Howard ed., 1979) (citing Donald C. Watt, Restraints on War in the Air before 1945). The Germans
rejected limitations with the cynical argument that "we cannot tie our hands in advance for fear
of neglecting more humanitarian methods which may be invented in the future." KALSHOVEN,
supra note 49, at 372.
95. The U.S. military delegate had prepared a similar speech, but happily abandoned it after
Colonel von Schwarzhoff ended debate on the issue. ScoTT, PEACE CONFERENCES, snpra note 83,
at 308-09.
96. Fearing German manpower, France and Russia proposed limiting land forces. Germany
proposed limiting naval armaments, which Britain and the U.S. promptly rejected. See RoysE,
supra note 71, at 7-9; DAVIS, supra note 84, at 110-24; WHITE, AUTOBIOGRAPHY, spra note
85, at 19, 22. The stronger military powers similarly blocked all disarmament proposals by Russia
and the weaker nations. In the rare case when the development of a weapon favored the interests
of smaller powers (e.g., submarines, which undermined the advantages of naval powers), the
smaller powers opposed limitation. See McDougal & Feliciano, snpra note 9, at 618-19. For the
records of this debate, see Proceedings, supra note 83, at 367-69.
fhture, "examine the possibility of an agreement as to the limitation
of armed
forces."
97
D. Inflated Accomplishments
The 1899 Hague Conference produced an abundance of empty
rhetoric and laws that appeared to advance humanitarian ideals but
lacked substance. Three areas deserve closer scrutiny: restrictions on
bombardment by land, prohibitions against certain weapons, and gen-
eral humanitarian declarations.
1. Bombardment by Land
The greatest threat facing civilians at the time was the increasing
range of artillery, which enabled war planners to target civilians well
beyond the battle lines. In drafting article 25 on land bombardment,
98
delegates insisted on language that allowed belligerents to employ
long-range artillery against distant towns unless they were "unde-
fended."
99
To clarify that the article contemplated the bombing of
civilian areas, Germany's military delegate publicly announced his
government's understanding that article 25 is "not to be taken to
prohibit the destruction of any building whatever and by no means
when military operations rendered it necessary."
100
Thus, the term
"undefended" was broadened to mean without military value.
2. Prohibitions of Weapons
After heated debate, the delegates to the Hague Conference managed
to prohibit the use of only three weapons, all of dubious military value:
asphyxiating gases, dum dum bullets, and balloon-launched muni-
tions.
10
Prohibitions on these weapons received widespread support
among delegates eager to demonstrate humanitarian motives but re-
luctant to compromise military interests. Nations had never used gas
97. ROYSE, supra note 71, at 8.
98. As finally adopted, article 25 read "trihe attack or bombardment of towns, villages,
habitations or buildings which are not defended, is prohibited." 1899 Hague Convention, srupra
note 6, art XXV, 32 Stat. at 1818, 1 Bevans at 257.
99. See SCOTT, supra note 83, at 493-97. Delegates replaced the traditional term "unfortified"
with "undefended" in order to increase the range of available targets. See, e.g., OPP/3NHEIM,
INTERNATIONAL LAw, supra note 77, at 285; J.M. SPAIGHT, WAR RIGHTS ON LAND 161 (1911)
[hereinafter SPAiGHT, LAND]. A town that housed a company of soldiers, or simply a weapons
factory, could be seen as defended even though it was clearly not fortified. See RoYsE, supra note
71, at 157-59.
100. ScoTT, PEACE CONFERENCES, supra note 83, at 424. None of the delegates raised any
objection to this interpretation, which also implied the destruction of "any persons whatever"
who happened to reside in the targeted buildings. Id.
101. See SCOTT, PEACE CONFERENCES, supra note 83, at 79-88.
shells in combat for fear that their harmful effects could not be directed
exclusively at the enemy.
10 2
In the final vote, only the United States
and Britain opposed the ban;
10 3
the U.S. military delegate openly
ridiculed banning a weapon for so-called humanitarian reasons before
its value could be fully tested on the field.
1 4
Britain and the United States also cast the lone dissenting votes to
the proposed ban on dum dum bullets,
10 5
which expand inside the
body to cause permanent, disfiguring wounds.
10 6
Britain, which manu-
factured the bullets in India and used them in colonial wars in Africa,
argued that dum dum bullets were necessary to disable tenacious
"savages."
0 7
The five-year moratorium on balloon-launched munitions, which
several delegations supported with great humanitarian flourishes, ap-
pears to contradict the general rule that considerations of humanity
were subordinated to military interests. Nevertheless, the delegates
understood the ban to operate only against non-dirigible balloons,
which had proven useless for military purposes.
08
The developing
technology of motorized aircraft, set to revolutionize warfare and ter-
rorize civilians, was exempt from the limitation.
19
Even with this
exemption, delegates from the stronger powers rejected Russia's pro-
102. See KALSHOVEN, supra note 49, at 374; RoYsE, supra note 71, at 145. For a summary of
the debate over the ban see SCOTT, PEACE CONFERENCES, supra note 83, at 365-67.
103. See ScoTr, PEACE CONFERENCES, supra note 83, at 79-88.
104. Captain Mahan, the chief U.S. military delegate, dismissed the humanitarian motives of
his opponents, arguing that new weapons were always denounced as barbaric until proven
militarily useful, at which point the pretense was dropped and they quickly entered the arsenals
of all nations. See 2 SCOTT, PEACE CONFERENCES, supra note 83, at 36-39. As Mahan explained,
"the reproach of cruelty and perfidy, addressed against these supposed shells, was equally uttered
formerly against firearms and torpedoes, both of which are now employed without scruple." Id
at 37. See also KALSHOVEN, supra note 49, at 30-32.
105. See SCOTT, PEACE CONFERENCES, supra note 83, at 79-88.
106. See WRIGHT, spra note 14, at 357.
107. Explaining his country's opposition to the ban, Sir John Ardagh reminded his colleagues
that ordinary bullets were not sufficient against colonized peoples:
In civilized war a soldier penetrated by a small projectile is wounded, withdraws to the
ambulance, and does not advance any further. It is very different with a savage. Even though
pierced two or three times, he does not cease to march forward, does not call upon the
hospital attendants, but continues on, and before anyone has time to explain to him that
he is flagrantly violating the decision of the Hague Conference, he cuts off your head.
ScOrr, PEACE CONFERENCES, supra note 83, at 343.
108. While paying lip service to humanitarian ideals, the U.S. delegate emphasized that the
unreliable nature of the weapon justified its regulation:
The balloon, as we now know it, is not dirigible; it can carry but little; it is capable of
hurling, only on points exactly determined and over which it may pass by chance, indecisive
quantities of explosives, which would fall, like useless hailstones, on both combatants and
non-combatants alike.
Parks, supra note 6, at 11.
109. ScoTr, PEACE CONFERENCES, supra note 83, at 214.
posal for a permanent ban on the grounds that the free balloon might
eventually acquire military utility."
0
3. Humanitarian Declarations
The delegates masked their failure to draft concrete limitations on
important means and methods of warfare by formulating vague, inde-
terminate provisions that sounded humane but did not impose any
binding commitments on signatories. In this manner, the Conference
retained its humanitarian cover without imposing on sovereign mili-
tary interests. The military advantage-that these declarations limit
nothing and therefore allow everything-is precisely the humanitarian
problem. Paradoxically, these are the very provisions that today are
hailed as the humanitarian foundation of the laws of war, the final and
formal rejection of kreigsraison.
The Hague's most famous humanitarian provisions illustrate this
point. Article 22, declaring that "the right of belligerents to adopt
means of injuring the enemy is not unlimited," and article 23, prohib-
iting the employment of "arms, projectiles, or material of a nature to
cause superfluous injury," do not provide guidelines for interpreting
the meaning of "unlimited means" and "superfluous injury.""
'
In the
absence of either explicit boundaries or an implicitly shared under-
standing, belligerents would inevitably interpret these terms in the
heat of battle to suit their immediate military needs. Similarly, the
Preamble to the 1899 Hague Convention, drafted by noted Russian
jurist Frederic de Martens, placed the fate of war victims not spe-
cifically covered by Hague laws under such protections as the dictates
of humanity, and the custom of nations.
112
Although many modern
jurists consider the de Martens clause to be the most important state-
ment of the entire law of war regime, one searches in vain for a single
instance of the use of this clause by a tribunal, statesman, belligerent,
or jurist to confer tangible protection on real persons.
The modern tendency to exalt the results of the Hague laws is
especially puzzling in light of contemporaneous reaction to it. While
110. Id. at 239.
111. 1899 Hague Convention, supra note 6, arts. XXII, XXIII (e), 32 Stat. at 1817-18, 1
Bevans at 256-57. One commentator noted that the value of prohibiting materials that cause
superfluous injury "depends upon the agreement of the military authorities as to what implements
or materials possess such a character. Unhappily, such authorities have not been of one mind,"
RoYsE, spra note 71, at 133.
112. The Preamble reads as follows:
Until a more complete code of the laws of war is issued, . . . populations and belligerents
remain under the protection and empire of the principles of international law, as they result
from the usages established between civilized peoples, from the laws of humanity, and the
requirements of the public conscience.
1899 Hague Convention, supra note 6, 32 Star. at 1805, 1 Bevans at 248.
the results of the Conferences apparently pleased delegates and inter-
national jurists,"
3
the general public reacted with great disappoint-
ment.
1 4
The London Times, the most influential paper in Britain, made
this comment upon the close of the first conference:
The Conference was a sham and has brought forth a progeny of
shams, because it was founded on a sham. We do not believe that
any progress whatever in the cause of peace, or in the mitigation
of the evils of war, can be accomplished by a repetition of the
strange and humiliating performance which has just ended.
115
E. The Hague Conference of 1907
By the Second Hague Conference in 1907, international expectations
were scaled down considerably.
16
The delegates did not enter the
Conference under any pressure to reach humanitarian results. In fact,
Czar Nicholas II, eager to rebuild his army after it was destroyed in
the 1905 Russo-Japanese War, did not even mention arms limitations
when convoking the conference."
7
Several new developments concerning the protection of civilians
came out of the Second Hague Conference. None, however, provided
significant humanitarian advances. In fact, the conference undercut
humanitarian ideals at certain points. The delegates drafted a new naval
113. Notwithstanding public criticism, diplomats kept a positive face on the Hague results.
American Secretary of State Elihu Root commented that "the work of the Second Hague
Conference ... presents the greatest advance ever made at any single time toward the reasonable
and peaceful regulation of international conduct, unless it be the first Hague Conference of 1899."
ScoTT, PEACE CONFERENCES, supra note 83, at iii. Academics and jurists also tended to support
the results of the Hague Conferences, blaming public disenchantment on unrealistic expectations.
See, ag., JOHANNES PHIIPPUS SuIJLING, THE HAGUE PEACE CONFERENCES OF 1899 AND 1907
13-14 (1910).
114. Public opinion condemned the results of the Conference for failing to realize its lofty
goals. As Holls, one of the American delegates, remarked upon returning to the U.S., "it is a
matter of history that immediately after the adjournment of the Conference this alleged failure
to agree, even upon a limitation of present armaments, was made the text of innumerable
unfavorable comments upon the Conference as a whole .... " HOLL, supra note 83, at 66.
Ambassador White, upon receiving negative accounts in popular newspapers and magazines,
lamented that "[t)he evil I dreaded, as regards the formation of public opinion in relation to the
work of our conference, is becoming realized." WHITE, THE FIRST HAGUE CONFERENCE, supra
note 86, at 100.
115. CHOATE, supra note 83, at 56.
116. Expectations having been dashed by the first conference, the Russo-Japanese War, the
Italian invasion of Turkey, and the growing tensions between the European powers, the public
mood towards the Second Hague Conference was one of cynicism and indifference. See RoYsE,
117. ScoTr, supra note 83, at 561. The Czar dispatched de Martens, the illustrious humani-
tarian, on a tour of Europe prior to calling the conference in order to preempt the issue of
disarmament. See MERZE TATE, THE DisAItAmENT ILLUSION 324-27 (1942).
code that explicitly provided for bombardment of undefended places."
8
Restrictions on the submarine, a divisive issue at the previous confer-
ence, were shelved due to the successful use of submarines in recent
conflicts.
119
Finally, efforts by small nations and naval powers to bring
air warfare under the existing ban on balloon-launched munitions were
soundly rejected.
120
Those countries that opposed a flat-out ban instead
agreed to place aerial bombardment under the article 25 guidelines for
land and naval bombardment.
121
In this way, aerial bombardment was
"legalized" without being restrained. The flexible directives of article
25 opened the door to direct aerial attacks on civilian centers, a tactic
that would be adopted by all belligerents in the subsequent World
Wars.
122
Such attacks now enjoyed the sanction of international law.
R Consequences of the Hague Conferences
After the two great peace conferences at The Hague, military neces-
sity remained unchallenged as the dominant value of the laws of war
and civilians were more vulnerable than ever to the scourge of com-
bat.
123
The technological march towards more destructive weaponry
118. Convention Concerning Bombardment by Naval Forces in Time of War, October 18,
1907, arts. 2, 3, 36 Star. 2351, 2363-64, 1 Bevans 681, 689.
119. See RoYsE, supra note 71, at 16-17.
120. The prospect of losing their comparative military advantage, as well as the protection
derived from geographic isolation, led naval powers like Great Britain and the U.S. to favor bans
on aerial advances. See CHOATE, supra note 83, at 14.
121. In return for supporting an extension of the ban on balloon-launched munitions, France,
Germany, Russia, Italy, and other air powers insisted on treating aerial bombardment in a similar
fashion to land and naval bombardment by amending article 25 to read "[t0he attack or bom-
bardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended
is prohibited." 1907 Hague Convention, supra note 6, art. 25, 36 Stat. at 2302, 1 Bevans at 648.
See SCOTT, spra note 83, at 614, for a discussion of this political bargain. Small powers without
developed air war programs resisted the compromise, but humanitarian arguments failed to sway
the leading air powers. See Roysu, supra note 71, at 114-20. Although framed as a prohibition,
the change in article 25 had the effect of legitimating aerial bombardment of defended towns,
From that point, it was a small step to attacking populated areas on the pretext that they were
"defended" by the presence of a military objective.
122. Air power was set to revolutionize warfare. The threat of air attack already existed in the
form of military dirigibles (part of the weapons programs of France, Germany, Russia, and Italy),
and the Wright Brothers and Alberto Santos-Dumont had completed successful flights. See Parks,
123. Moreover, the Hague Conferences demonstrated that states tended to interpret military
necessity to mean mere utility--anything useful or advantageous in war. One of the foremost
authorities on the Hague Conferences drew the following conclusion:
[Tihe two great peace conferences of modern times, along with their lesser predecessors, did
not succeed in reducing armaments, or in restricting the development and improvement of
weapons, or in prohibiting or restricting the use of any effective weapon or method of warfare
.... The proceedings of the Hague Conference demonstrate rather that a weapon will be
restricted in inverse proportion, more or less, to its effectiveness; that the more efficient a
weapon or method of warfare the less likelihood there is of its being restricted in action by
rules of war.
RoYsE, supra note 71, at 131-32.
was not slowed, but rather allowed to flourish unchecked. States agreed
to restrict only those obsolete methods or means of warfare whose
limitation did not put one or more states at a disadvantage.
124
This
refusal to provide concrete limitations on military action did not make
the world safe from the ravages of battle; rather, it enabled political
and military leaders to use a rhetorical device to justify their wartime
conduct.
VI. LAW IN THE WORLD WARS
This section examines the use of law by belligerents in the World
Wars and concludes that the laws of war did not protect civilians but
rather legitimated attacks against them. Law served as a second front,
where belligerents sought to mobilize public opinion behind the jus-
tice of their cause. Starting in World War I, belligerents consistently
referred to the laws of war to justify their own conduct and condemn
that of the enemy. The deliberate vagueness of the Hague laws pro-
vided ample room to maneuver on the battlefield, allowing belligerents
to adopt any tactic deemed expedient, including the wholesale bom-
bardment" of civilian populations. The laws of war thus helped to
legitimate the very atrocities that they purportedly intended to deter,
leading to the "lawful" slaughter of civilians.
A. Law and the Transformation of Warfare
The failure of law to deter atrocities in World War I stemmed not
only from the deliberate pursuit of sovereign self-interest at the Hague
Conferences, but also, more fundamentally, from the dominant histori-
cal trends of the time.
125
The cornerstone of the humanitarian project,
the need to distinguish non-combatants from combatants, ran counter
to sweeping social changes toward industrialization and militariza-
tion.'
26
The integration of civil industry into the military "served to
rob the great cities of a belligerent country of the virtual immunity
which once they could claim. They have become an integrated part of
124. The Hague was characterized by the self-interested maneuverings of large and small
powers intent on retaining those means and methods of war in which they were superior, and
limiting those in which they were inferior. See DAvIs, supra note 84, at 110-25; cf. RoYsE, supra
note 71, at 130-31.
125. For a survey of the sociological, political and economic conditions precipitating World
War I, see WRIGHT, supra note 14, at 300-03, 338-41, 725-27.
126. The development of heavy industry through the introduction of methods of mass pro-
duction powered the rapid advance of the military technology and the growing interdependence
of military and civil societies. See Elbridge Colby, Laws of Aerial Warfare, 10 MINN. L. Rav. 207,
207-27 (1926).
the whole war-machine. They are part of the war. They do not stand
aside
from
it."
1 2 7
Belligerents in past wars had spared civilians not for humanitarian
reasons, but simply because they lacked the technological capacity to
do otherwise.
128
The development of the airplane and long-range naval
and land artillery made it both possible and useful to target enemy
production and enemy populations, eroding the distinction between
non-combatant and combatant.
29
The result was the advent of
total war ... fought by entire nations wherein all are considered
"combatants"
without any limitation
on the means of injuring
the
enemy in order that he may be so utterly defeated that his entire
system of life may be subordinated to the will and the system of
the victor.
130
The airplane was the primary offensive weapon in the arsenal of total
war. Air power enabled military commanders to attack the industrial
base that supported the war effort. These attacks extended to the
workers themselves, who arguably contributed no less than uniformed
soldiers.
131
Next on the target list was a nation's "will" to fight. To the
extent that civilian support bolstered the vigor of an enemy's war
effort, a belligerent could justify direct civilian attacks, so-called "mo-
rale" bombings, on the grounds of military necessity.
132
Under such an
127. J.M. Spaight, Legitimate Objectives in Air Warfare, 1944 BRIT. Y.B. INT'L L. 158, 162,
128. Where civilians could be reached they had always been in danger of attack. For instance,
the starvation of civilians in besieged towns has long been considered a legitimate military tactic.
See George A. Mudge, Starvation as a Means of Warfare, 4 INT'L LAW. 228, 228-51 (1970).
129. 4 CHARLES WEBSTER & NOBLE FRANKLAND, THE STRATEGIC AIR OFFENsIvE AGAINST
GmtiANY, 1939-45, at 67 (1961).
130. O'Brien, Military Necessity, supra note 9, at 134. See also WRIGHT, supra note 14, at
300-03.
131. Air power enabled belligerents to cut off an enemy's power at its manufacturing source,
before it became a gun in the hand of a soldier. By this logic, the maker of arms was the most
attractive target, followed by the arms factory and lastly the armed soldier. One military historian
concluded: "By no process of reasoning could a belligerent be persuaded that the makers of
armaments in his enemy's country were less his active enemies than the men who wore uniform
[sic] and opposed him in the field. They had been spared so far because they could not be got
at and for no other reason at all." J.M. SPAIGHT, AIR POWER AND WAR RIGHTS 43-44 (3d ed.
1947) [hereinafter SPAIGHT, WAR RIGHTS].
132. Italian General Giulio Douhet, a leading proponent of morale attacks, argued that "[a]
people who are bombed today as they were bombed yesterday, . . . who know they will be
bombed again tomorrow and see no end to their martyrdom, are bound to call for peace at
length." STFFAt, T. POSSONY, STRATEGIC AIR POWER: THE PATTERN OF DYNAMIC SECURITY
146 (1949) (quoting unnamed work of General Douher). For a discussion of the strategy behind
morale bombing, see id. at 146-68. A British contemporary of Douhet's, summarizing the
arguments of the "newer school" of thought on air power, observed that "[ijt is a whole nation
which wills and makes war to-day. The man in the street, the voter, not the soldier or sailor, is
the master, the principal, the person to be impressed and won over. Air power can break his
expansive view of military necessity, no one was immune from legally
justifiable attacks.
Recognizing air power's potential to eviscerate the humanitarian
ideals of the laws of war, commentators struggled to contain and
control the ominous march towards the bombardment of civilians.
133
Some distinguished scholars, relying on the power of wishful thinking,
interpreted the Hague laws to prohibit any use of the airplane as a
weapon.134 A more realistic position sought to limit aerial warfare by
narrowly interpreting article 25, which prohibited the bombardment
of undefended areas "by any means."'
135
However, a broader interpreta-
tion of the term "undefended" would eventually render article 25's
restrictions meaningless.
B. Law and Military Reality in World War I
1. Law
Prior to actual conflict and in the initial stages of the war, national
leaders gave assurances that civilians would not be the object of attack,
stating publicly that international law forbade indiscriminate aerial
moral [sic]." J.M. SPAIGHT, AIR POWER AND THE CITIES 117 (1930) [hereinafter SPAIGHT,
CITIES].
133. See, eg., T. J. LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 168, 204 (6th ed.
1910); 2 L. OPPENHEIM, INTERNATIONAL LAW: WAR AND NEUTRALITY 155-58 (2d ed. 1912)
[hereinafter OPPENHEIM, WAR AND NEUTRALITY]; COLEMAN PHILLIPSON, WHEATON'S ELE-
MENTS OF INTERNATIONAL LAw 507-09 (5th ed. 1916). For a survey of the legal efforts made
to constrain air power, see Georg Schwarzenberger, The Law of Air Warfare and the Trend Towards
Total War, 8 A1. U. L. REv. 1, 2-10 (1959).
134. Westlake interpreted the Hague's temporary prohibition on balloon-launched bombard-
ment to include aircraft, and recommended that since "the civilian population cannot be protected
from danger if bombs may be dropped from the sky .... [T]he prohibition ought to be made
perpetual." WETLAKE, stpra note 56, at 77. In a similar vein, Professor Pillet commented that
bombardment violates "that great law of reason which sanctions such injury only being inflicted
as is necessitated by the object of the war." SPAIGHT, LAND, supra note 99, at 157-58. These
interpretations ran contrary to the official diplomatic understandings at The Hague. See supra part
V.E. One commentator compared "[t)he jurists who demanded the total prohibition of the new
arm" to "the Pope who issued the bull against the comet." J.M. SPAIGHT, AIRCRAFr IN WAR 3
(1914) [hereinafter SPAIGHT, AIRCRAFT].
135. Article 25 prohibits "[rI]he attack or bombardment, by whatever means, of towns,
villages, dwellings, or buildings which are undefended." 1907 Hague Convention, supra note 6,
art. 25, 36 Stat. at 2302, 1 Bevans at 648. Professor Oppenheim, writing in 1912, maintained
that article 25 imposed a categorical ban on aerial attacks against such undefended targets.
OPPENHEIM, WAR AND NEUTRALITY, siora note 133, at 155. Professor Phillipson, on the other
hand, argued that aerial bombardment should be subject to the same restrictions as land and
naval bombardment, which allow attacking clear military targets even in undefended areas. See
PHILLIPSON, supra note 133, at 622-23. As the interpretation of "undefended" came to rely upon
an absence of military targets, these two positions coalesced. If a town contained "military
objectives," then it would no longer be considered "undefended." See R.Y.J., Open Towns, 1945
BeT. Y.B. INT'L L. 258, 260-61. Eventually, the belligerents in World War I defined a military
objective so broadly that it encompassed the entire enemy civilian population.
bombardment of civilian populations.
136
During World War I, each
belligerent proclaimed its respect for the laws while condemning the
"illegal" acts of its adversary.
137
Yet each adopted similar policies of
deliberate "morale bombing"-attacking populated areas to sow terror
in the population and discourage its support for the war.
1 38
Thus, while
the laws provided leaders with a tool to legitimate their actions and
condemn the enemy,
139
they offered no corresponding benefits to civil-
ians.
It would appear that states were willing to accept only such
limitations as favoured their own perceived interests, and that
when technical development put weapons-systems into their hand
which promised success only if used without restriction, then all
restraints were cast aside.
140
Casting aside restraint did not entail open violation of the laws of
war; it simply meant interpreting the law to justify unrestrained
conduct. Belligerents "legalized" their resort to aerial bombardment of
civilian centers by interpreting the protected "undefended areas" of
article 25 to mean areas without military objectives.
141
Thus, if a
belligerent attacked a perceived military objective in a town, for in-
stance, an arms factory, that town would no longer be considered
"undefended,"
regardless
of whether it was actually defended
in the
ordinary sense of the word.
42
One military historian noted a consensus
136. See, e.g., RoYsE, supra note 71, at 174-93; SPAIGHT, WAR RIGHTS, supra note 131, at
220-32; Colby, supra note 126, at 214-17. General D. Henderson, Chairman of the Royal United
Services Institute, remarked that "to sail an airship over London and to drop bombs here and
there would be quite opposed to the ethics of warfare as we at present understand them."
SPAIGHT, AiRcRAFr, supra note 134, at 12.
137. See SPAIGHT, WAR RIGHTS, supra note 131, at 222-25; 1 JAMsES WILFORD GARNER,
WORLD ORDER 417-23 (1920).
138. Bombing enemy civilians to destroy morale was a deliberate tactic of all sides in World
War I, "accepted as part of the functions of the bombardment groups." RoYsE, supra note 71, at
192. See also Gerald J. Adler, Targets in War; Legal Considerations, 8 Hous. L. REV. 1, 40 (1970).
139. One military historian noted that "[i]t is obvious that law of war considerations received
little (if any) attention, except as a tool for propaganda alleging indiscriminate attacks by the
enemy." Parks, supra note 6, at 20-21.
140. Bryan Ranft, Restraints on War at Sea before 1945, in HOWARD, sapra note 94, at 54.
141. Article 25 neglected to define "undefended" and thus left it to the belligerents to provide
substantive clarification. See Phillips, supra note 7, at 322-23. See also 1 WEBSTER & FRANKIAND,
142. Throughout the war, military leaders justified their attacks on those civilian centers that
harbored military objectives. Italian General Cadorna described Italy's "bold and successful air
raids directed against a military objective" as being "in full observance of the laws and usages of
war." SPAIGHT, WAR RIGHTS, supra note 131, at 223-24 (quoting General Cadorna's report of
August 21, 1915). As Admiral Scheer, Commander of Germany's High Seas Fleet, explained: "It
never was the object of an airship raid to attack defenceless dwelling-places." Rather, "[t]heir aim
always was to destroy those establishments which, either directly or indirectly, served some
among commanders that "military objectives could be bombed wher-
ever found, regardless of their location, and, it seems, regardless of the
injury to non-combatants
and private property."'
143
Once the law permitted bombing behind the enemy front lines, it
inevitably came to sanction direct attacks against civilians.
144
Because
of the crudeness of existing weaponry, bombers could not discriminate
between military and civilian objectives.
145
Even more ominously, as
belligerents perceived an affirmative military value in terrorizing civil-
ians, civilians became military objectives in their own right.
2. Military Reality
Indiscriminate bombardment of cities commenced in late 1914 with
the German raid on Antwerp and the Zeppelin attacks against Brit-
ain.1
46
The Chief of the German Naval Staff justified such attacks as
necessary to achieve military ends: "I hold the view that we should
leave no means untried to crush England, and that successful air raids
on London, in view of the already existing nervousness of the people,
would prove a valuable means to an end."'
147
The Imperial Chancellor
concurred, opining that these "most ruthless measures" were also "the
most
humane.
" 148
military purpose." Id. at 231, quoting SCHEER, GERMANYv'S HIGH SEA FLEET IN THE WORLD
WAR 207-08 (1920).
143. RoysE, rupra note 71, at 193. This view finds wide support among military historians:
"In general, the airship commanders appear to have been content to dump their bombs almost
anywhere, and, having jettisoned them, to have cherished the fond hope that some military
objective had been demolished." SPAIGHT, CrrES, supra note 132, at 184.
144. See, ag., BRIAN BOND, WAR AND SOCIETY IN EUROPE, 1870-1970, at 100-34 (1986).
145. In order to avoid enemy fire, sorties were often flown at night and at high altitudes. The
planes carried bombs that used crude aiming mechanisms. Under these conditions, "trIo require
aviators to single out the one class of persons and things from the other and to confine their
attacks 'exclusively' to one of them will in many cases be tantamount to an absolute prohibition
of all bombardment." James W. Garner, Proposed Rules for the Regulation of Aerial Warfare, 18 Am.
J. INT'L L. 56, 69 (1924). Belligerents were unwilling to make this sacrifice. See Colby, supra note
126, at 207-10.
146. See SPAIGHT, WAR RIGHTS, supra note 131, at 231-43. In all, Germany conducted 208
Zeppelin sorties, killing 557 Britons and injuring 1360. LAWRENCE H. ADDINGTON, THE
PATTERNS OF WAR SINCE THE EIGHTEENTH CENTURY 139 (1984). The British government
estimated that air raids against London through February 13, 1919, killed 1284 non-combatants
and injured 3105 more. See GARNER, supra note 57, at 65. Germany manifested a similar disregard
for civilians in France, dropping 396 bombs on Paris in 1918, killing 402 and injuring 809. See
RoYSE, .rupra note 71, at 176. Casualties from these bombings were limited primarily by a lack
of technological capacity. See 1 WEBSTER & FRANKLAND, supra note 129, at 36-40.
147. RoysE, supra note 71, at 181. The German Kaiser supported a similar policy towards
the French, stating that "[m]y soul is tom, but.., if I admit considerations of humanity it [war]
will be prolonged for years." CRIMES OF WAR 135 (Richard A. Falk et al., eds., 1971).
148. Addressing the Reichstag in March 1916, the Imperial Chancellor declared: "Every means
that is calculated to shorten the war constitutes the most humane policy to follow. When the
most ruthless measures are considered best calculated to lead us to victory, and a swift victory
... then they must be employed." GARNER, supra note 57, at 271.
Harvard International Law Journal / Vol 35
Leaders of the Entente countries also condoned a policy of terror
bombings.
4 9
Official orders instructed French and American pilots to
engage in bombardment for "moral effect,"
150
and the Chief of the
British Air Staff praised the efficacy of "[t]he wholesale bombing of
densely populated industrial centres."
151
While such bombing was
limited by technological restraints, the law itself did not provide an
apparent barrier to these attacks.
1 52
Toward the end of the war, the
King of Spain made an initiative to stop the bombing of undefended
towns, to which Germany seemed disposed. The British Cabinet re-
jected the proposal, commenting that it was "undesirable in the inter-
est of future peace that the civilian population of Germany should be
the one population among the belligerents to enjoy immunity.""1
53
C. The Humanitarian Failure of Law in World War I
The ease with which morale bombing was legally justified by all
sides in World War I underscored the impotence of the law's humani-
tarian principles. Prior to the war, it was generally accepted that there
was a "fundamental" distinction between combatant and non-combat-
ant. The advent of aerial bombardment obliterated that distinction,
revealing the ultimate subservience of humanitarianism to military
necessity. Belligerent rhetoric condemned attacks aimed solely at sow-
ing death and terror but condoned attacks aimed at the military
objective of breaking civilian morale. Civilians derived little solace
from the malleable distinction between the intent to terrorize and the
149. See HOWARD, supra note 94, at 10. For a survey of the indiscriminate bombing by the
Entente, see RoYsE, supra note 71, at 183-92.
150. Official French instructions of March 1918 explained that "[a]s regards both day and
night bombardment, the moral effect produced and the tactical results obtained are almost always
more important than the actual damage done." RoYsE, supra note 71, at 214 (quoting It raction
sur l'Organization (sic) et l'emploi de l'Aronautique aux Armes, Titre III, Aviation de Bombardenent).
By the end of the war, the Entente had adopted a night-time bombing strategy in which "the
entire town would be subject to bombardment by raiding parties sometimes as large as fifty
aircraft, the result nearly always being general, widespread shelling." Id at 184.
151. In a memorandum dated June 27, 1918, Major-General Sykes described the objectives
of aerial bombardment in the following terms: "The aim of such attacks would be to sow alarm
.... The wholesale bombing of densely populated industrial centres would go far to destroy tile
morale of the operatives." 1 WEBSTER & FRANKLAND, supra note 129, at 46.
152. Legal condemnation of war conduct was limited to post-war attempts to further humiliate
the defeated Germans. In Coenca Bros. v. Germany (1927), the Greco-German Mixed Arbitral
Tribunal found that Germany had violated international law in its night-time attack on Salonika
by failing to give warning before bombardment. L.C. GREEN, Aerial Considerations in the Lau, of
Armed Conflict, in ESSAYS ON THE MODERN LAW OF WAR 135, 136-37 (citing 7 Rectuel des
Dcisions des Tribunaux Arbitraux Mixtes 683 (1927)).
153. Donald C. Watt, Restraints on War in the Air Before 1945, in HOWARD, supra note 94, at
63. The British felt that they had an advantage over Germany in aerial bombardment and refused
any limitations on their ability to exploit that advantage. See 1 WEBSTER & FRANKLAND, stpra
note 129, at 50.
use of terror in weakening morale. Moreover, the distinction does not
provide a usefil standard of legality for prosecuting
violators.
154
The practical failure of law to deter the barbarities of World War I
would not have surprised most delegates to the Hague Conferences,
who purposely subordinated humanitarian concerns. Yet, those who
believed that the Hague laws represented humane progress were forced
to reassess their opinions.
D. Attempts to Reform the Laws of War Before World War II
The tremendous human cost of World War I sparked a public outcry
for new methods of controlling the consequences of war. Many feared
that the next war, with the support of modern aerial weaponry, would
unleash even greater devastation than the last. "[A] particular notion
of future war dominated the public consciousness; namely that conflict
would begin suddenly . . . with an all-out air attack on defenceless
cities.... Such fears were widely shared by politicians, air experts and
writers of all kinds."
155
Spurred by the public clamor, diplomats and
jurists again assembled to devise a means of regulating war.
156
These
efforts were generally characterized by the utopian quest to prohibit
effective weapons or to ban war altogether.
157
1. The Washington Conference
The Washington Conference of 1922 and its "follow-up" Conference
at The Hague symbolized this form of legal utopianism. A commission
of renowned jurists, officially supported by their respective govern-
ments, assembled to draft laws regulating aerial bombardment,
158
and
particularly to reestablish the line between the civilian and the com-
batant.
1 59
In retrospect, the conference was doomed from the start.
154. Since it is difficult for a commander to know before an attack whether its terror will
produce a military advantage, the attack's legality rests either on the commander's subjective
intent or on an objective assessment of what his expectation reasonably should have been.
Prosecuting a commander under such a standard would be next to impossible.
155. BOND, supra note 144, at 150. See also Note, The League of Nations and the Laws of War,
1920 BRT. Y.B. INT'L L. 112-16.
156. See, eg., UI BIAER, THE SHADOW OF THE BOMBER: THE FEAR OF AIR ATTACK AND
BRITISH POLITICS, 1932-1939 101-11 (1980); GARNER, supra note 57, at 430-64.
157. The attempt to ban war outright in the Kellogg-Briand Pact, see slepra note 5, marked
the pinnacle of post-war legal utopianism. Proponents of these efforts viewed the laws of war as
part of the problem, maintaining that "it is by the development of the law of peace, rather than
by renewing the attempts to codify the law of war, that a stable international system can be built
up by the League of Nations." Note, supra note 155, at 116.
158. See 6 John Bassett Moore, Rules of Warfare: Aircraft and Radio, in THE COLLECTED PAPERS
OF JOHN BAssETT MoosRE 140-225 (1944); GARNER, supra note 57, at 430-64.
159. John Bassett Moore, U.S. representative and Chairman of the Commission, stated that
"the preservation of the distinction between combatants and non-combatants, especially as
Unlike the experienced diplomats who drafted the previous laws of
war, these jurists lacked adequate appreciation of the political, eco-
nomic, and military realities underlying wartime practices6
0
Ani-
mated by excessive faith in the power of positive law, they drafted rules
that placed unprecedented limits on sovereign power and prohibited
any effective use of aircraft in war.1
6
1 Not surprisingly, official support
for the Conference dissipated in a wave of ridicule; one commentator
described the Conference as a "highwater mark in legal fantasy."'
162
In
the end, not one nation adopted the rules.
163
2. Other Attempts
This debacle stalled further efforts to regulate aerial warfare until
public opinion was re-mobilized in the 1930s by the Italian bombard-
ment in Abyssinia, the devastating German bombardment of Durango
and Guernica, and Japanese air attacks in China.164 The resultant
World Disarmament Conference, convened in Geneva from 1932 to
affected by aerial bombardment, loom[s] larger in the public mind than any other question before
the Commission." RoYsE, supra note 71, at 212 n.132 (citation omitted). See also JOHN BAsa'rr
MOORE, INTERNATIONAL LAw AND SOME CURRENT ILLUSIONS 182-94 (1924).
160. One participant commented that "ftjhe majority of commissioners had little or no
technical acquaintance with the art and practice of war. Some seemed inclined to believe that the
course of war, even when great national emotions were aroused, might be guided by the phrases
of a code of rules previously agreed upon." William L. Rodgers, The Laws of War Concerning
Aviation and Radio, 17 Am. J. INT'L. L. 629, 633 (1923). The technical advisors to the Commis-
sioners possessed the necessary expertise, but lacked the authority. See id. at 633-34.
161. The most ambitious provisions prohibited even precise attacks on critical military facili-
ties in urban areas, thereby allowing belligerents to immunize military assets simply by situating
them among civilians. See Rules of Warfare: Aircraft and Radio, arts 24.1, 24.3, reprintcd in
COLLECnON, supra note 68, at 210. One of the delegates, who resisted the absolute prohibitions
on aerial bombardment, explained that "[r]o ask air power to refrain from the 'direct action' of
which it is capable is to demand of it a self-denial to which there is no parallel in history." J.M.
Spaight, The Doctrine of Air-Force Necessity, 1925 BRIT. YB. INT'L L 1, 4-5.
162. Phillips, supra note 7, at 326. For the reactions of the major powers, see Parks, inpra
note 6, at 25-35. "The 1923 Hague Air Rules suffered an ignominious death, doomed from the
outset by language that established rules for black-and-white situations in a combat environment
permeated by shades of gray." Id at 35.
163. See Parks, spra note 6, at 35. The failure of the Washington Conference represents the
flip side of the failure of the Hague Conference. Whereas Hague laws supported military necessity
under the guise of humanitarianism and legitimated unrestrained belligerent conduct, the laws
drafted at the Washington Conference ignored military necessity altogether and were sub-
sequently abandoned by sovereign powers. Consequently, neither conference succeeded in protect-
ing civilians.
164. See BOND, supra note 144, at 135-67. The bombing of Guernica, which killed up to
10,000 civilians, sparked British fears that an equivalent German air attack against British cities
"would correspond to the destruction of a borough of 200,000 inhabitants." SPAIGI-'T, WAR
RIGHTS, supra note 131, at 255, quoting GEORGE L. STEER, THE TREE OF GERNKA 85 (1938).
Europe and the U.S. condemned the Japanese bombings in Nanking, Canton and Hankow as
"unwarranted and contrary to the principles of law and humanity." Id at 256.
1934, sought to draft basic civilian protections that could be observed
even in the heat of battle.
1 65
Despite the "obsession with 'civilians"'
shown by conference participants,1
66
the effort fell victim to competing
national interests as states fought to preserve military advantages and
limit the power of adversaries.
167
Thus concluded forty fruitless years of trying to place humanitarian
limits on the forward match of military necessity. Each effort failed to
assess dispassionately the motives and forces driving this relentless
progress, and therefore failed to develop realistic standards capable of
offering civilians more than mere humanitarian rhetoric.
E. Law and Morale Bombing in World War II
1. Law
Beligerents entered World War II piously uttering the same hu-
manitarian and legal rhetoric employed in World War I. All sides
promised to respect the laws of war and to avoid inflicting civilian
casualties. In fact, these two objectives bore little relation to one
another; respect for the laws of war offered few substantive protections
to civilians. Each side discovered that any useful military tactic could
be justified under the law, and thus compliance in no way compromised
their interests. Public pledges to respect the laws served to legitimate
conduct without restraining it.
This trend was exemplified by aerial bombardment. To calm public
fears and to reassure opposing states, political leaders, once again,
unanimously condemned tactics that would involve targeting civilian
populations. With tensions rising in 1938, British Prime Minister
Neville Chamberlain made a last-ditch effort to invest the laws of war
with concrete humanitarian substance:
I think we may say that there are, at any rate, three rules of
international law ... applicable to warfare from the air .... In
the first place, it is against international law to bomb civilians as
such and to make deliberate attacks upon civilian populations.
That is undoubtedly a violation of international law. In the second
place, targets which are aimed at from the air must be legitimate
military objectives and must be capable of identification. In the
165. See Watt, supra note 94, at 68; BARON PHIIP NOEL-BAKER, THE FIRST WORLD
DISARMAMENT CONFERENCE 1932-33 AND WHY rr FAILED (1979).
166. SPAIGHT, WAR RIGHTS, supra note 131, at 43.
167. See id at 244-49. Limitations on air warfare were blocked by Germany. France, who had
the weakest air force among the major powers, originally proposed a complete ban on aerial
warfare, while Britain sought limits by type of aircraft and targets. Neither proposal was adopted.
Id.
86 Harvard International Law Journal / Vol. 35
third place, reasonable care must be taken in attacking these
military objectives so that by carelessness a civilian population in
the neighbourhood is not bombed.
1 6
Chamberlain underscored this message by declaring bombardment
aimed at "demoralising the civilian population" to be "absolutely
contrary
to international
law.1
' 6
9
United States President Franklin D. Roosevelt called the bombard-
ment of civilians "inhuman barbarism which has profoundly shocked
the conscience of humanity,"'
70
and on the eve of World War II,
Roosevelt appealed to each belligerent "publicly to affirm its determi-
nation that its armed forces shall in no event, and under no circum-
stances, undertake the bombardment from the air of civilian popula-
tions or of unfortified cities."
17 1
Britain, France, and Germany all
responded affirmatively.
72
However, none seriously contemplated re-
stricting aerial bombardment, and all (including the United States)
eventually bombed civilian areas with the explicit intention of target-
ing "morale."
2. Morale Bombing
Strategic rather than legal or humanitarian concerns limited Allied
aerial bombardment during the early months of war.
173
Aware of their
168. Goda, The Protection of Civilians from Bombardment by Aircraft: The Inefftctivenrs of the
International Law of War, 33 MIL. L. REv. 93, 97-98 (1950), quoting 337 PARL DEB., HC. (5th
ser.) 937 (1938). Not coincidentally, these humanitarian principles served British interests. As
one historian observes, "it became very clear in the 1930s that the British (and French) govern-
ments would go to almost any lengths rather than become involved in an air slugging match,"
BOND, supra note 144, at 153.
169. SPAIGHT, WAR RIGHTS, supra note 131, at 257, quoting 337 PARL. DEs., H.C. (5th Ser.)
938 (1938).
170. ROBERT B. OSGOOD & ROBERT W. TUCKER, FORCE, ORDER AND JusTIcE 217 (1967).
171. SPAIGHT, WAR RIGHTS, supra note 131, at 259.
172. The British and French replied in a joint communique that they "some time ago sent
explicit instructions to the commanders of their armed forces prohibiting the bombardment,
whether from the air or the sea, or by artillery on land, of any except strictly military objectives
in the narrowest sense of the word." Id. at 259. Hitler responded in kind, noting that
[the] precept of humanity in all circumstances to avoid bombing non-military objectives
during military operations corresponds entirely to my own attitude and has always been
advocated by me. I therefore give my unqualified agreement to the suggestion that the
Governments involved in the present hostilities should publicly make corresponding decla-
rations.
Id. at 260.
173. U.S. Navy directives issued in May of 1941 prohibited "terrorizing the civilian popula-
tion ... (or] injuring noncombatants." Parks, supra note 6, at 38 (quoting U.S. Navy, Tentative
Instrmtions fJor the Navy of the United States Governing Maritime and Aerial Warfare (1941)). As Major
General Kuter, Assistant Chief of the American Air Force Staff for Plans, explained, "[o]ur entire
target policy has been founded on the fact that it was uneconomical to bomb any except military
objectives and the German productive capacity." DAvis, supra note 84, at 94. See also MATLOIW,
vastly inferior bombing capacity, Britain and France hoped to avoid air
warfare with Germany by initially eschewing it.
174
Germany's first direct aerial attack against civilians, in the Battle of
Britain, was executed under orders advising pilots that "attacks on
cities for the purpose of terrorizing the civilian population are abso-
lutely forbidden."'
1 75
The directive resolved this apparent contradiction
by distinguishing terror attacks from attacks on the enemy population's
"will to resist."'
176
This hollow distinction provided legal cover to air
massacres of civilians by all sides during the war.
177
The British Chief of Air Staff was quick to condone area bombing,
arguing that all bombs that fall on Germans do "useful work" even if
they miss their intended target.
78
Like Germany, the British at-
tempted to draw a legal distinction between useful and gratuitous
UNITED STATES ARiy IN WORLD WAR II: STRATEGIC PLANNING FOR COALITION WARFARE
1943-1944, at 10-32 (1958). Nevertheless, President Roosevelt and his military advisors were
prepared, according to instructions prepared by Air Force Plans Division Number 1 in 1941, to
undertake "area bombing of cities to give the coup de grdce to german morale." 1 THE ARMY AIR
FORCES IN WWII 606 [hereinafter ARw" AIR] (Craven & Crate eds., 1948). In fact, as early as
1926, the U.S. Air Service Tactical School had already endorsed the concept of morale bombing,
instructing pilots that "at the beginning of a campaign bombardment is an efficient weapon...
to weaken the morale of the enemy people by attacks on centers of population." RoYsE, supra
note 71, at 215. For a general discussion of U.S. air strategy in Europe, see ARmy AIR at 594-612.
174. 1 WEBSTER & FRANKLAND, supra note 129, at 99. As these two historians point out,
"[i]n view of the British air inferiority it is not surprising to find that the possibility of restricting
bombing to purely military objectives .. .received fresh and sympathetic consideration ....
Both the Air Officer Commander-in-Chief, Bomber Command, and the Air Ministry were of the
opinion that restrictions on bombing would be an advantage ...." Id In 1938, it was estimated
that Germany could drop 600 tons of bombs a day on Britain to the mere 100 tons per day that
Britain and France could drop on Germany. See Howard, supra note 94, at 76. British Air Marshal
Slessor stated: "[We did issue in August 1939 instructions which defined military objectives
very narrowly .... I regarded it all as a matter not of legaliry but of expediency .... We should
no doubt have taken a different line if we had believed that, in the near future and with our
existing equipment, we could have achieved anything like decisive results from an aerial offensive.
But at the time of Munich we did not believe that." SLESSOR, THE CENTRAL BLUE 214 (1957).
175. For the directive issued by the Luftwaffe, entitled "The Conduct of the Air War," see
Parks, supra note 6, at 39. At one stage during World War II, the Operational Staff of the German
military contemplated renouncing all obligation imposed by the laws of war, but decided against
it upon realizing that the disadvantages would outweigh the marginal advantages gained. See
McDougal & Feliciano, supra note 9, at 813.
176. The directive instructed pilots to target the morale of enemy populations in order to
weaken support for the war. McDougal & Feliciano, supra note 9, at 813.
177. See 2 WEBSTER & FRANKLAND, supra note 129, at 21-44; Goda, supra note 168, at
98-111.
178. General Trenchard harbored no humanitarian pretensions:
[If you are bombing a target at sea, then 99 per cent. of your bombs are wasted.... If,
however, our bombs are dropped in Germany, then 99 per cent. which miss the military
target all help to kill, damage, frighten or interfere with Germans in Germany and the
whole 100 per cent. of the bomber organization is doing useful work, and not merely 1 per
cent. of it.
4 WEBSTER & FRANKLAND, supra note 129, at 195.
terror, allowing unlimited discretion to bomb civilians for the useful
purpose of breaking their morale.
179
Allied attacks on civilian centers increased dramatically in 1943
after the Combined Chiefs of Staff of the Allied Command prioritized
"the undermining
of the morale of the German people to a point where
their capacity for armed resistance is fatally weakened."
180
This order
was, in effect, a declaration of war on the German and Japanese
populations.
181
The firebombings of Berlin, Dresden, and Tokyo alone
killed almost half a million civilians,
182
causing even Churchill to
reconsider what he forthrightly termed a policy "of bombing German
cities simply for the sake of increasing the terror, though under other
pretexts."
18 3
The logic of terror bombing led inexorably to the use of
atomic bombs in Hiroshima and Nagasaki.
184
These bombings starkly portrayed the irrelevance of the laws of war
to the protection of civilians. If civilian morale was a justifiable target,
then in practical terms, no bombing could be legally condemned. A
U.S. Government post-war bombing survey revealed that 23.7% of the
allied bombing of Europe was done at night over large cities in order
"to spread destruction
over a large area rather than to knock out any
specific factory or installation, and [the air attacks] were intended
primarily to destroy morale, particularly that of the industrial
worker."
18 5
Similarly, the survey points out that the "preponderant
purpose" of incendiary bombings was "to secure the heaviest possible
179. See Goda, supra note 168, at 105-13.
180. See 4 WEBSTER & FRANKLAND, supra note 129, at 273 (quoting the Combined Bomber
Offensive from the United Kingdom (Pointblank) as approved by the Combined Chiefs of Staff,
14th May 1943).
181. By conservative estimate, terror bombing by the Allies killed 305,000 Germans civilians
and seriously injured 780,000. BOMBING SURVEY, supra note 12, at 36. The Japanese death toll
was 330,000 with another 476,000 wounded. Id at 92.
182. See Richard G. Davis, Operation 'Thunderclap': The U.S. Army Air Forces and the Bombing of
Berlin, 14 J. STRAT. STUD. 90 (1991); Alfred Goldberg, Establishment of the Eighth Air Force in the
United Kingdom, in ARMY AIR, supra note 173, at 612; 5 S. WOODBURN KIRBY, THE WAR
AGAINST JAPAN: THE SURRENDER OF JAPAN 161-69 (1969); Goda, supra note 168, at 104-07.
183. WtF.zER, supra note 19, at 261.
184. This paper will not enter the debate on the legality of the atomic bomb. Many commen-
tators insist that the bombings violated international law, for "to approve atom bombing would
be to confess that all the denunciations of indiscriminate bombardment at The Hague and
elsewhere were nothing but hypocrisy and insincerity." SPAIGHT, WAR RIGHTS, supra note 131,
at 276. However, the same interpretation of military objectives employed to justify aerial
bombardment would likely cover the atomic attacks. See, e.g., GEORG SCHWARZENBERGBR, THE
LEGALITY OF NUCLEAR WEAPONS (1958). For more detailed examination of this issue, see Falk,
The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki, 59 AM. J.
INT L. 759 (1965); O'Brien, Military Necessity, supra note 9; Henry L. Stimson, Th Dccision to
Use the Atomic Bomb, HARPER'S MAGAZINE, Feb. 1947, at 97; Morton, The Decision to Use the
Atomic Bomb, in COMMANrD DECISIONS 388 (Kent Roberts Greenfield ed., 1954); WALZER, supra
note 19, at 264-68.
185. BOMBING SURVEY, supra note 12, at 71.
moral and shock effect by widespread attack on the Japanese civilian
population."
' 186
Perhaps the most appalling commentary on these kill-
ings is that they proved to be of dubious military value:
Military experts today admit that the results of Allied bombing
raids in Germany fell very much short of expectations, . .. that
the brutality of that form of warfare, far from shattering the
enemy's morale, may have even encouraged a spirit of resistance
which prolonged
the war.
187
F The Humanitarian Failure of Law in World War II
In both World Wars the laws of war played analogous roles. In each
conflict the law served as a powerful rhetorical device to reassure
anxious publics that the conflict would be confined within just limi-
tations. The First and Second World Wars both saw the law subverted
to the dictates of battle, reduced to a propaganda battlefield where
belligerents traded attacks and counter-attacks. And in the end, the
law ultimately failed to protect civilians from horrifying new weapons
and tactics. The scope of permissible violence expanded under a flexible
definition of military objective and military necessity that eventually,
and predictably, justified relentless terror bombing campaigns.
VII. THE LESSONS OF NUREMBERG
Conventional wisdom views the war crimes trials held at the end of
World War II as a rare triumph for the laws of war. The trials placed
political and moral issues into a legal framework; it was not crude
revenge, but lawful justice that condemned Axis leaders for their
actions. While some have criticized the trials for legal flaws, there is
reason to question the undertaking at a deeper level. In order to avoid
condemning Allied as well as Axis conduct, the war crimes tribunal
left the most devastating forms of warfare unpunished. In doing so,
these trials lent further legitimation to a belligerent's right to target
the enemy civilian population.
186. Id. at 37-38.
187. Desaussure and Glasser, Air Warfare-Christmas 1972, in LAw AND RESPONSIBILITY, supra
note 20, at 125 (quoting Bindschedler-Robert, A RECONSIDERATION OF THE LAW OF ARMED
CONFLICTS (1971)). The United States Strategic Bombing Survey supports this finding. BOMBING
SURVEY, siora note 12, at 39. See also ROBIN HIGHAM, AIRPOWER: A CONCISE HISTORY 79-95
(3d ed. 1988); STONE, supra note 44, at 628-31.
Harvard International Law Journal / Vol 35
A. The Promise of Nuremberg
The Nuremberg Tribunal is widely lauded for resurrecting the rule
of law from the carnage of World War 11.188 The successful prosecution
of Axis war criminals stands as a moment in which military leaders
were held accountable under law for wartime conduct.
8 9
These prose-
cutions signalled a decisive blow to the doctrine of kreigsraison, and an
affirmation that law must operate even in the chaos of total war.
190
As
underscored by the Chief U.S. Prosecutor:
The principles of the [Nuremberg] charter, no less than its wide
acceptance, establish its significance as a step in the evolution of
a law-governed society of nations. The charter is something of a
landmark .... 191
Certainly, many aspects of the Nuremberg Tribunal merit such
praise. For the first time, military and political leaders were denied the
protection of traditional "state action" defenses, and were held indi-
vidually responsible for war crimes committed while serving the
state.
92
The Tribunal admitted no excuse for violations of humanitar-
ian law. Military necessity would not justify legal breaches. In a
powerful rejoinder to Bismarck's famous question: "What leader would
allow his country to be destroyed for international law?" the Tribunal
held that "[tihe rules of international law must be followed even if it
results in the loss of a battle or even a war."'
193
The immediate adoption
of the judgments and legal principles set forth by the Tribunal by
188. See M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL
LAw 69-06 (1992) (overview of scholarly reaction to the Nuremberg trials).
189. The Nuremberg Trials were the first of a series of war crimes trials held by the Allied
powers after their victory in World War II. See generally WAR CRIMES COMM'N, U.N., TRIALS OF
WAR CRIMINALS BEFORE Tma NUREMBERG MILITARY TRIALS UNDER CONTROL COUNCIL LAW
No. 10 (1952). The final judgments appear in 41 Am. J. INT'L L. 172 (Supp. 1947).
190. See, eg., Quincy Wright, The Law of the Nuremberg Trial, 41 AM. J. INT'L L. 38 (1947);
Henry L. Stimson, The Nuremberg Trial: Landmark in Law, 25 FOREIGN AFF. 179 (1946-47);
Sheldon Glueck, The Nuremberg Trial and Aggressive War, 49 HARv. L. REV. 396, 396-456 (1946);
N.C.H. Dunbar, Military Necessity in War Crimes Trials, 1952 BRIT. YB. INT'L. L. 442, '142-52.
191. ROBERT H. JACKSON, REPORT OF ROBERT H. JACKSON, UNITED STATES REPRSENTA-
TIVE TO THE INTERNATIONAL CONFERENCE ON MILITARY TRIALS viii (Div. of Publications Off.
of Public Affairs, U.S. Dep't. of State Publication No. 3080, 1949).
192. See BASSIOUNI, supra note 188, at 240-62.
193. In re List, 8 U.N. WAR CRIMES COMII'N, LAW REPORTS AND TRIALS OF WAR CRIMINALS
67 (1949). In another case, the Tribunal asserted that, "[t]o claim that [the Hague Conventions]
can be wantonly--and at the sole discretion of any one belligerent--disregarded when he
considers his own situation to be critical, means nothing more or less than to abrogate the laws
and customs of war entirely." In re Krupp, 10 UNITED NATIONS WAR CRIMES COMM'N, LAW
REPORTS AND TRIALS OF WAR CRIMINALS 139 (1949).
unanimous resolution in the U.N. General Assembly highlighted their
widespread
acceptance
and significance.
194
B. The Refusal to Prosecute Violations of the Laws of War
Unfortunately, these achievements offer an incomplete and distorted
picture. While the Tribunal has been properly hailed for prosecuting
violations of the laws of humanity, it failed to address potential viola-
tions of the laws of war. Destructive methods of warfare by all sides,
involving the massacre of civilians, were not condemned or even legally
challenged.
195
By leaving morale bombing and other attacks on civil-
ians unchallenged, the Tribunal conferred legal legitimacy on such
practices.1
9 6
Under the extraordinary circumstance in which the inter-
national community sits in judgment of the conduct of an enormously
destructive war, one may infer that conduct unpunished is conduct
condoned.197
1. Air Attacks Against Civilians
Despite forming a commission to investigate violations of the laws
of war and listing "indiscriminate bombing" as a recognized war crime,
no defendant was ever prosecuted on these grounds.
198
In fact, the
Tribunal's only conviction on this charge was of a Japanese judge for
the crime of having himself convicted two U.S. pilots for fire-bombing
Japanese cities.
199
Colonel Telford Taylor, the Chief United States
194. See Report of the International Law Commission: Principles of International Law Recognized in
the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 5 U.N. GAOR, 5th Sess.,
Supp. No. 12, at 11, U.N. Doc. A/1316 (1950), reprinted in 44 AM. J. INT'L L. 126 (Supp. 1950).
195. The Tribunal had jurisdiction over three types of war crimes: (1) "crimes against peace:"
preparing, initiating and waging a war of aggression; (2) "war crimes:" violations of the laws of
war (Hague law and Geneva law); and (3) "crimes against humanity:" murder, extermination,
enslavement or other inhumane acts carried our against the civilian population, before or during
the war. See CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL, reprinted in COLLECTION,
196. See G. Brand, The War Crimes Trials and the Laws of War, 1949 BRIT. YB. INT'L L. 414,
418; ROBERT K. WoEZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 176-89 (1962).
197. For the public at large, the Tribunal's failure to address the civilian killings by aerial
bombardment and submarine warfare implies the international sanction of these acts. See Falk,
supra note 184, at 759-60. Yet, many jurists argue that the this failure to prosecute certain war
crimes was a matter of circumstance and should not be interpreted as condoning the conduct in
question. See, eg., Charles A. Allen, Civilian Starvation and Relief During Armed Conflict: The Modern
Humanitarian Law, 19 GA. J. INT'L & CoMp. L. 1, 23-28 (1989). This argument is hard to
sustain, however, given the moral and legal mandate enjoyed by the Nuremberg Tribunal and
the unique situation that allowed it to address the full range of violations in World War II.
Moreover, this argument fails to recognize the historical pattern with which the Tribunal's
concession to military necessity is entirely consistent.
198. See O'Brien, Military Necessity, supra note 9, at 151.
199. See Robert W. Miller, War Crimes Trials at Yokohama, 15 BROOK. L. REV. 191, 207-08
(1949); Phillips, supra note 7, at 332-33.
Prosecutor at Nuremberg, provided the following justification for the
Allies' reluctance to bring charges based on aerial attacks:
The ruins of German and Japanese cities were the results not of
reprisal but of deliberate policy, and bore witness that aerial
bombardment of cities and factories has become a recognized part
of modern warfare as carried on by all nations.
2
The Tribunal concurred in the assessment that morale bombing was
a customary practice of nations, and therefore legal. In fact, it explicitly
condoned attacks against civilians, even atomic attacks, under a broad
interpretation of military necessity that recognized a legitimate pur-
pose in the bombardment of cities to induce surrender:
MThere... is no parallelism between an act of legitimate warfare,
namely the bombing of a city, with a concomitant loss of civilian
life, and the premeditated killing of all members of certain cate-
gories of the civilian population in occupied territory .... [Als
grave a military action as is an air bombardment, whether with
the usual bombs or by atomic bomb, the ... only purpose of the
bombing is to effect the surrender of the bombed nation.
201
This interpretation of legitimate military ends stands in stark contrast
to the general consensus among jurists and diplomats prior to the war,
who considered direct targeting of civilians illegal per se.
202
The Tribu-
nal's interpretation effectively legalized unrestrained military policy:
[Ajir power entered the post-war period free of all limitations save
those imposed by its own technology. Maximum reciprocal em-
ployment of the most efficient means of devastation was in no way
forbidden
to belligerents
.... 203
200. Parks, supra note 6, at 37 (quoting TELFORD TAYLOR, FINAL REPORT To THE SECRETARY
OF THE ARMY ON THE NUREMBERG WAR CRIMEs TIus UNDER CONTROL COUNCIL LAV No.
10 (1949)).
201. United States of America v. Otto Ohlendorfet al. (Case No. 9), 4 WARt CRIMES COIX'N,
U.N., TRIAS OF WAR CRIMINALS BEFORE THE NUREaIBERG TRIBUNALS UNDER CONTROL
CoUNcIL LAw No. 10 1, 467 (1948).
202. Recall, for instance, the attempts by international jurists to prohibit aerial warfare prior
to World War I, see supra part VI.A, and the appeals made by Chamberlain and Roosevelt prior
to World War I, see supra part VI.E.1.
203. Phillips, supra note 7, at 334.
2. Deference to Military Necessity
The Tribunal's broad interpretation of military necessity was not
limited to aerial bombardment, but rather covered the full range of
wartime conduct:
Military necessity permits a belligerent, subject to the laws of war,
to apply any amount and kind of force to compel the complete
submission of the enemy with the least possible expenditure of
time, life and money . . . . It permits the destruction of life of
armed enemies and other persons whose destruction is incidentally
unavoidable
by the armed conflicts of the war .... 204
The Tribunal placed only the most outrageous conduct beyond the
bounds of military necessity, such as "the killing of innocent inhabi-
tants for the purpose of revenge or the satisfaction of a lust to kill."
205
Likewise, it prohibited only "the wanton devastation of a district or
the willful infliction of suffering upon its inhabitants for the sake of
suffering alone.
''2
0
6
By this definition, if the infliction of suffering was
militarily "purposeful," it was legal.
By emphasizing the subjective perspective of the accused, the Tri-
bunal lent further flexibility to these rules.
20 7
In In re List, a German
general was charged with "devastation not required by the necessities
of law" for ordering, during a retreat through Finland, the removal of
the entire civilian population and the destruction of all food and
shelter, leaving "some sixty-one thousand men, women and children
homeless, starving and destitute.
' 208
Although the Tribunal found that
204. Robert W. Gehring, Protection of Civilian Infrastruaures, 42 LAW & CONTEMP. PROBS. 86,
99 (1978) (quoting In re List, 11 WAR CRI ms Comm'N, U.N., TRIALS OF WAR CRIMINALS
BEFORE THE NUREMiBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 759,
1253-54 (1950)).
205. Id.
206. Id.
207. The Judge Advocate explained the rationale behind adopting the accused's perspective:
It is essential that you should view the situation through the eyes of the accused and look
at it at the time when the events were actually occurring .... You must judge the question
from this standpoint: whether the accused, having regard to the position in which he was
and the conditions prevailing at the time, acted under the honest convictiort that what he
was doing was legally justifiable.
Dunbar, supra note 190, at 450. By adopting a "good faith" standard rather than a "reasonable
person" standard, the Tribunal established the precedent that even in the extraordinary instance
when a commander faces trial for combat decisions, the prosecution must actually prove the order
did not stem from an honest, albeit unreasonable, expectation of military advantage. Outside of
the realm of crimes against humanity, it is difficult to conceive of a combat order that would be
found criminal.
208. In re List, 8 WAR CRIES Coa'iN, U.N., LAW REPORTS OF TRIALS OF WAR CRIMINALS
34, 35 (1949).
Harvard International Law Journal / VoL 35
these orders served no military purpose, it nevertheless ruled that since
the accused believed they might slow the enemy's advance, the com-
mands were not criminal.
20 9
Consistent with its broad interpretation of military necessity, the
Tribunal acquitted a German commander for ordering troops to kill
starving civilians trying to flee a besieged city.
210
In the German High
Command Trial, a defendant commander justified his order as required
by military necessity; preventing civilians from leaving the city would
reduce the food-stocks and thus hasten the city's surrender. The Tri-
bunal ruled that
the cutting off of every source of sustenance from without is
deemed legitimate. It is said that if the commander of a besieged
place expelled the noncombatants, in order to lessen the number
of those who consume his stock provisions, it is lawful, though
an extreme measure, to drive them back so as to hasten the
surrender.
211
The analogies between starvation to hasten surrender, and morale
bombing, are obvious: both posit civilian suffering as a legitimate
military objective.
C. Nuremberg's Unfortunate Legacy
Notwithstanding its significant humanitarian accomplishments in
the area of crimes against the peace and crimes against humanity, the
Nuremberg Tribunal actually helped legitimate unrestrained conduct
in war by refusing to convict, or even prosecute, based on violations
of the laws of war.
212
Regardless of whether this reluctance was based
on Allied unwillingness to face legal scrutiny of its own conduct, the
Tribunal set the clear precedent that international law tolerated mas-
sacres of civilians, including those by nuclear weapons. In many ways,
209. The Tribunal acknowledged that "[It]here is evidence in the record that there was no
military necessity for this destruction and devastation . . . . But we are obliged to judge the
situation as it appeared to the defendant at the time." Id. at 67-68.
210. In re Von Leeb, 11 WAR CRIMaES COMM'N, U.N., TRIALS OF WAR CRIMINALS B13rona
THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL IAW No. 10 563 (1950).
211. Id. The Tribunal thus held that the order to shoot fleeing civilians was legally justified.
212. This argument runs contrary to standard interpretations of Nuremberg's legacy, as
reflected in the following comments: "It is difficult to see in the Nuremberg judgment anything
but a solid net gain for world law." Phillips, supra note 7, at 334; "The Nuremberg Tribunal
strengthened, rather than shattered, the principles of the laws of war by its evenhanded treatment
of the violations." Allen, supra note 197, at 28. See also ToNI J. FARER, THE LAWs OF WAR 25
YEARs AFTER NUREMBERG 21 (1971). The Nuremberg Trials have advanced international law,
but it is important not to select as meaningful only the positive consequences. By ignoring the
Tribunal's implicit sanction of abhorrent wartime practices, the above authors contribute to the
legitimation of otherwise condemnable acts.
the Nuremberg Tribunal actually bolstered the rights of belligerents
to engage in "normal" wartime atrocities, those that can be tenuously
(in the eyes of the perpetrator) linked to a military objective. Ironically,
the power of Nuremberg's image as a humanitarian milestone may
further entrench these "customary" belligerent practices that claim the
vast majority of civilian casualties in modern war. Recognition of this
failing should not tarnish the positive steps taken at Nuremberg, but
merely underscore a hidden impact-the legitimation of extreme war-
time conduct.
VIII. CONCLUSION
This Article has attempted to dispel widely held myths about the
humanitarian accomplishments of the present laws of war. Demystifica-
tion constitutes an essential first step in a program of constructive legal
reform. The second Article, in the next issue of the Harvard Interna-
tional Law Journal, will analyze the Gulf War as the latest and clearest
example of the manipulation of law to legitimate belligerent acts, and
will propose strategies for placing humane and effective legal limits on
war.
The present relationship between law and war is neither necessary
nor natural; it has been constructed piece by piece in response to a
series of particular, historically contingent events. The fact that nations
have adopted a legal framework that allows them to conduct wars
relatively uninhibited by humanitarian constraints does not preclude
the development of alternative legal frameworks that effectuate differ-
ent values and yield different results.
The evolution of internationalism presents critical opportunities and
obstacles for those seeking to reform belligerent conduct. The fate of
legal reform will be determined by a series of conflicts over the distri-
bution of rights and power in the international system. The outcome
of these power struggles will be inscribed in the legal and political
framework within which future wars will be fought, to the benefit or
detriment of those caught in the violence.

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Citation: 35 Harv. Int'l. L. J.

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