The 1892 Conferences on the Law of War published by Antoine Pillet
From 1891 to 1892, Antoine Pillet, a prolific and eminent French professor of international law, was invited to teach a course on the law of war to the garrison officers at Grenoble, France. His lectures were published in book form in 1892, in a work entitled Le Droit de la Guerre. Part One of this book is subtitled “Hostilities” (Les Hostilités).
Later works by Pillet addressed issues such as the law of occupation or neutrality (1893). This post focuses on his 1892 book, which is based on ten lectures, set forth in ten chapters.
Questions regarding the current state of international humanitarian law (IHL) are well known to readers of Articles of War. These include: the relation between IHL and human rights law; questions of targeting, precaution, and proportionality; issues of implementation; the so-called “war on terror”; the law applicable during international or non-international armed conflict (or both); direct participation in hostilities; cyberwarfare; autonomous lethal weapons systems; etc.
But what were the hot issues of IHL in 1892, when viewed by a specialist speaking to military personnel of one of the great military powers of the day? What was treated and what was debated or debatable in those days? Pillet’s Le Droit de la Guerre provides valuable insights into this old-styled law of war in the days just before the Hague Conventions. Let us therefore plunge into it, making this important work accessible to a non-French speaking public. In this post, I concentrate on the chapters dealing with jus in bello issues, to the exclusion of those which address war in general (Chapter I) or the jus ad bellum and peaceful settlement of disputes issues (Chapter II).
Triggering International Humanitarian Law
Chapter III of Pillet’s Le Droit de la Guerre deals with the declaration of war as a trigger in the application of the law of war, as it then was (incidentally, no law on non-international armed conflict existed at that time). It is essential to know when there is a passage from the law of peace to the law of war, from friendship to enmity. This is so also on account of the position of third States. They must know when their position is transformed into one of neutrality.
The problem of contemporary practice is that such declarations were sometimes made, and at other times not made. For instance, the United Kingdom engaged in war against the United States in 1812 without a formal declaration. Accordingly, it is difficult to hold that there was a positive obligation under international law to make such a formal declaration (because of the split of practice).
Reference is often made to the fact of hostilities. However, these facts will show the pattern of a war only after a certain time; for the “first shots” there will be doubt. In any case, it must be said that a belligerent opening hostilities without any warning acts contrary to its duties of loyalty and prevents the necessary effort to attempt a peaceful adjustment. Thus, a declaration of war remained necessary. Its form could be an ultimatum (which is indeed a conditional declaration of war) or a notification. The latter must have been made also to third States, entitled to neutral status. There were various consequences of such declarations of war: the withdrawal of ambassadors; expulsion of enemy citizens and measures taken against those who remain on the territory; etc. Conversely, contrary to what was believed in the past, treaty relations continued to exist between belligerent States, and therefore not all their treaties become inapplicable.
A problem which was paramount to the date of writing, and which has completely faded away in the mist of the past, is addressed in Chapter III. Pillet’s passages shed light on a fundamental shift in IHL. In ancient times, our subject matter was truly a law of war. “War” was a concept supposing an intention or at least a significant intensity of warfare (this was war in the formal and in the material sense). Thus, armed hostilities of a factual and reduced scope did not trigger the applicability of the law of war. The declaration of war was mainly necessary to provide certainty about the legal situation.
In the modern law, the concept of “armed conflict” under the Geneva Conventions of 1949 and their common interpretation is triggered from the “first shot.” The intensity requirement has been abandoned for the purposes of IHL. This has legal consequences. For example, any injured military personnel must be cared for under the First Geneva Convention of 1949 (GC I) independently of any “intensity” of the conflict. This allows us to forgo the declaration of war: the fact of hostilities on the ground now triggers the application of the relevant law, whereas in the past it did not.
Therefore, the declaration of war is not necessary now but was necessary in the past. On this account, one understands that this question is not discussed any more in modern law. To be more precise, the question remains relevant for the application of the law of neutrality, because the latter still attaches to an international armed conflict of a certain intensity (mirroring the “war”). The same problems as existed in the past are thus present here, but there is no modern practice of formally declaring war; there is, rather, a practice of declaring neutrality. Overall, the assessment of the existence of an armed conflict must now be made rebus ipsis et factis and case-by-case without a formal trigger like a declaration.
Distinguishing Between Combatants and Non-Combatants
Chapter IV of Pillet’s Le Droit de la Guerre deals mainly with the difference between combatants and non-combatants. This question has become one of the most important in IHL. In the past, it was recommended to treat non-combatants humanely, but there was no legal duty to spare them. In the law of the nineteenth century, the only active enemies were adverse combatants, while passive enemies, the citizens of the other party, were not to be attacked, so long as they did not intervene in hostilities.
This sound principle of distinction allowed for the mitigation of the evils of war. But it also had its challenges in application. For instance, must a citizen repress his or her patriotic feelings and abstain from fighting the invading enemy? The problem of clearly delimiting the circle of persons that are combatants, to avoid the war degenerating into uncontrolled action against civilians, remains.
A fundamental distinction must here be drawn between land and maritime warfare. In land warfare, persons entitled under the legislation of the State to fight are combatants, whatever their precise denomination and status, and include incorporated foreign fighters (such as the tirailleurs of Algeria). A disputed question is the status of the corps francs (free corps), such as the corps of partisans and other irregulars. Small States, like Belgium and Switzerland, will have recourse to such additional fighters to reinforce their small armies, something accepted by Article 9 of the 1874 Brussels Declaration. Such corps must be accepted by the State as fighting for its cause. Moreover, persons acting under a levée en masse must also be accepted as combatants (Article 10, Brussels Declaration) but the issue has been hotly debated.
Conversely, in maritime warfare, the fight is directed not only against the organized forces of the enemy but also against its merchant fleet. Combatant status here encompasses navy military personnel, anciently privateers, and finally any volunteer corps organized by the State (as was set up by Prussia in 1870). The latter is not always easy to distinguish from prohibited privateering.
These explanations still reflect the mainstream law of today. Combatant status is fixed in Article 4 of the Third Geneva Convention (GC III) and Articles 43 and 44 of Additional Protocol I (API). Meanwhile, a civilian is anyone who is not a combatant. The triad is: members of the armed forces, resistance corps, and levée en masse, the latter two under more stringent conditions than the first. All other persons are civilians.
The pressing issue of direct participation in hostilities (DPH) does not appear in Pillet. More generally, it is considered in the context of the so-called franc-tireur, which is a civilian participating in hostilities who can be only be considered a combatant if the State has consented to its action. Today, the point is not exclusively to turn the civilians who participate in hostilities into combatants, but to decide when such a civilian can be targeted even without being a combatant. At the time Pillet was writing, that possibility was not discussed. It seemed clear that a civilian participating in hostilities could be targeted and subjected to martial law. The point of focus was rather whether and how the State could “incorporate” such civilians to turn them into combatants and thereby ensure they were granted combatant privileges and protections. The issue had loomed large in the Franco-Prussian War of 1870.
Overall, it can be said that for Pillet there was only one issue: combatant or non-combatant status; today, the discussion is triangular: combatant, civilian, and DPH. Finally, one point to notice: the term “civilian” does not appear in Pillet’s discussion. The term used is either “non-combatant” or a specific reference, e.g. women, unarmed men, etc. The traditional position was to list protected persons.
Means and Methods of Warfare
Chapter V of Pillet’s Le Droit de la Guerre addresses means and methods of warfare. The conduct of hostilities was composed either of force or of ruse, or both. However, both were not unlimited. Violence in war was to be strictly confined to what was necessary to overpower the enemy; and also to what was honorable, so as to avoid casting dishonor on the fighting nation. Concretely, this meant that violence could only be directed against combatants.
Concerning weapons, the issue turned into an eternally renewed compromise between technical advances and the demands of civilization. It must be emphasized that a specific means of warfare is not prohibited anymore, as in the past, because it has considerable damaging effects. The greater the effect of a weapon, the better suited it may seem to the commander, and allowance is made under the law for its use.
However, weapons causing greater suffering than necessary or uselessly delaying healing, without ensuring a significant military advantage, were and remain prohibited (unfortunately additional prohibitions were rejected by England, fearing that its relatively small army could be put at a disadvantage if too many restrictions were adopted). Poison was prohibited, as was the attempt to kill treacherously a foreign head of State heading the army. By the same token, to put a price on the enemy’s life was repudiated.
A weapon having such a considerable effect that it would affect non-combatants near the point of its impact was considered unlawful if used in such a context. Conversely, ruses of war were allowed, but perfidy proscribed. A ruse became perfidy when it was based on the breach of the pledged word given to the enemy or if precise statements are made (such as a false statement that an armistice has been concluded, so as to obtain the withdrawal of the enemy forces).
If uniforms or insignia of the enemy were used, it was at least required not to open fire during the time of such false pretense. The additional question as to whether the use of uniforms or insignia of the enemy was also prohibited remained controversial. Perhaps one should completely prohibit the use of the adverse national flag but allow the use of uniforms and insignia. Protective emblems were to be absolutely respected. Spies were allowed.
Deserters of the adverse army could be incorporated into the army of the State where they found refuge. A belligerent could also try to corrupt adverse personnel or take advantage of an insurrection on the territory of its enemy (but it was not allowed to foment it). Conversely, the propagation of false information was a perfectly allowed ruse of war.
None of these rules could be set aside by invocation of necessity, as was sometimes affirmed; they were absolute in nature.
The developments in this chapter devote some attention to different categories of weapons (there being few technical advances in this area when compared with the twentieth century) but almost no attention to targeting issues, and conversely a considerable amount of attention to issues of honor, perfidy, ruse, allowability, and necessity. This was a distinctive nineteenth century coloring of the subject matter of conduct of hostilities. One will notice the appearance of some modern notions, which however are mentioned only in passing, almost as a hologram. Most notably, the reader will have noticed the mention of proportionality on the lines of Article 51(5)(b) of Additional Protocol I to the 1949 Geneva Conventions, an issue of paramount importance today. Pillet mentions it in only one sentence, adding that apart from the use of poison, it was difficult to see how such a disproportionate attack could ever occur. The remark was thus made for future wars and not for the warfare of his time.
Today, the most important element of the law on means and methods turns on the principle of distinction, with its three legal prongs: military objectives, precautions, and proportionality. This is a consequence of the increasingly technological nature of warfare, taking the place of hand-to-hand fighting, which was still the world in which Pillet thought. One will also notice the complete absence of objects under special protection (today these include e.g. sanitary or demilitarized zones, cultural objects, installations containing dangerous forces, etc.) In the context of weapons, Pillet mentions only poison, projectiles (e.g. exploding ones) and missiles.
Overall, there is a common root in the presentation of this area of the law: the rules Pillet presents are still valid today, but the focus is not the same. The rules applicable today have significantly risen in number and complexity. Summing up, the law on the conduct of hostilities is today concentrated on distinction, special protection, means (mainly weapons), and methods (tactics). For Pillet, the main divide was between means and honor.
Siege Warfare and Bombardments
Pillet’s Chapter VI deals with siege warfare and bombardments. Today these issues are among the last pockets where a sobering barbarity in warfare resists and ardently lurks behind the law. Siege warfare means in our days that the besieged town is cast under a rain of shells and, once it has surrendered, the population is spared. The destruction was as intense during Pillet’s times and there was frequently pillage and murder after the conquest of the place.
Clearly, sieges are unavoidable. Also, a bombardment of the town may be necessary. However, it is the gravest measure of war a commander can take in this context, because it will affect without distinction the non-combatant population. Bombardment must therefore be confined to absolute necessity. Consequently, it is prohibited against an undefended town (“open town”), unless in reprisal.
For the deleterious German school of thought, bombardment was necessary as a means to obtain surrender of the town; the heaviest bombardment would in this perspective speed up the surrender and offer a distinctive military advantage, time being of the essence in war. Bombardment is in this view an ordinary device of warfare.
According to a more palatable conception of the law, the following conditions must be met to justify the absolute necessity of a bombardment: 1) there is no other means to obtain surrender (e.g. to take the place by ordinary fighting); 2) it must begin by targeting the fortifications and defensive installations; 3) it must first be notified, if possible (i.e. when immediate action is not necessary); 4) the laws of humanity remain always applicable, e.g. in trying to spare non-combatants, in letting the population exit the town, or alternatively in letting the population confine itself in one precise part of the town, which is not to be attacked; 5) it must try to spare cultural objects and ambulances.
Turning to the approximate time of Pillet, the siege of Strasbourg in 1870 shows a barbaric act of war and spawned hatred of the assailants among the population of the town. In fact, issues of siege warfare had pride of place at the time Pillet was writing (and notably in the Franco-Prussian War of 1870).
But they had lost much attention in modern IHL, before gaining recent attention under statements captured in the Explosive Weapons in Populated Areas Declaration. Sieges in Bosnia-Herzegovina, Syria (Aleppo), Ukraine (Mariupol), and Gaza brought sieges back to the limelight. Modern siege warfare is colored by the effort of sparing the civilian population by ensuring both humanitarian aid and evacuations. A general bombardment of the town, as described by Pillet, would today be a war crime, because the principle of distinction does not cease to apply in this context.
The main effort today is therefore to “humanize” sieges, i.e. to render them compatible with the protection of the civilian population. There exist two main arguments in this regard: 1) either, for some authors, a siege proper has become unlawful, because it contravenes the prohibition of starvation of the population; or 2) for the majority, the siege must be conducted in such a way as to respect the rules on the protection of the civilian population, which in turn modifies profoundly the options of the military commander.
Prisoners of War
Chapter VII of Pillet’s Le Droit de la Guerre deals with prisoners of war. He considered what rights belligerents possessed over persons having fallen under their control. A disarmed enemy soldier was protected under IHL, which had made significant progress on this point since ancient times, when military and non-military prisoners were at the complete mercy of their captors.
An exception to this protection existed only in the case of reprisals, which Pillet wished would become very rare in wars of the future. Some authors such as Heffter, Lueder, and Bluntschli still considered that quarter could be refused when the sheer number of prisoners made would overburden the captor (due to pressing necessity). Pillet argued this inhuman doctrine must be rejected. The fate of a military operation could not depend on these numerous “prisoners” and their disarmament will suffice to disable them to the extent required; there was therefore no true necessity in killing them.
Pillet addressed another question as to who could be made prisoner of war. In the past, it was the whole population of a territory. Pillet regarded that the number of eligible persons had been restricted since. Prisoners were disarmed and their weapons could be war booty. They were interned and treated according to humane standards. Indeed, the standard should be concretized according to a principle of equal treatment with the soldiers of the detaining State, such as with rations of food. Prisoners could be compelled to work, but not subjected to dangerous, humiliating or excessively hard labor, nor required to perform labor with a nexus to hostilities. Prisoners were subjected to military discipline and could be sanctioned for offences and crimes by sentences up to the death penalty.
An important question is the one of liberation on parole, mainly of military officers. Delicate questions arose here as to the degree to which the State of origin was required to respect the promise made by the liberated person not to participate any more in the war. Generally, it was admitted that the State must respect the pledge, but could subject the person to a penalty for having committed itself in that way. The true state of the law was probably harsher. A State was not at all bound by the agreement of his officer with the adverse belligerent, which was for it res inter alios acta.
Certain persons lost the entitlement to prisoner status if captured, mainly the spy. But a spy can only be a person acting secretly and under false pretenses; an officer in uniform was never a spy under the laws of war. Even the person accused of espionage had the right to an equitable process of law to determine whether he fell under the definition of a “spy.” And if a person returned to his own army, he could not be punished any more for past espionage action.
The modern reader will find in this chapter many explanations which foreshadow current legal regulations, such as the issue of spies (see Article 46, AP I). The most significant differences with modern law are of two types. First, some rules which have since been repudiated; and second, some other rules which have in the meantime fallen into disuse.
In the first category, we can mention the admissibility of reprisals against prisoners of war. The law of reprisals of the nineteenth century were still considerably more permissive than under the modern law. With the law as it stands today, reprisals against protected persons are prohibited; for prisoners of war the rule is now contained in Article 13(3) of GC III.
In the second category, we must place the issue of liberation on parole. This practice was still significantly followed in the nineteenth century, and singularly in the Franco-Prussian War so as to inspire Pillet. But it has fallen into almost complete disuse during the twentieth century. Overall, one can say that the main distinctive feature between then and now is that the “humanization” of the law on protected persons has progressed since the nineteenth century on the lines, incidentally, of what Pillet expressed as being his own wishes.
The Sick and Wounded on the Battlefield
Chapter VIII of Pillet’s Le droit de la guerre deals with the injured and sick. He regarded IHL as obliging the belligerents to organize and operate a sanitary service. Historically, belligerents concluded special agreements for mutually facilitating the work of such services. Only in 1864 was a general convention concluded in Geneva as a consequence of the famous events giving rise to the action by Henri Dunant.
The 1864 Convention guaranteed the inviolability of the injured and provided protections for those dedicated to their care. But the Convention was poorly drafted. Its provisions were vague and disordered; on some points, its humanitarian impetus was incompatible with the necessities of war; and finally, it was replete with gaps. Soon after its adoption, efforts to complement it by new rules were consequently made.
Regulation on this subject matter turns around the following gravitational points:
1. The injured, with an obligation of care, an obligation of repatriation of the severely injured (unable to continue to serve), and the liberation on parole (an inconsistent regulation, repetitive with the one for prisoners of war in general) enjoyed protection. It is astonishing that the immunity of the injured against attack was nowhere expressly stated in the 1864 Convention. Manifestly, it seemed too obvious to warrant explicit mention and was implicitly covered by some provisions of the military penal codes.
2. Sanitary personnel, mainly with the regulation of immunities against attack accorded to these persons to allow them to carry out their duties also enjoyed protection. Their immunities were not absolute, e.g. if sanitary personnel engage in hostile acts. All types of facilities were to be given to sanitary personnel for the exercise of their mission. Immunity was also granted to the population of a country providing care to the injured of the enemy army.
3. Sanitary installations benefited from immunities against attack (e.g., for ambulances or hospitals). However, the Convention imposed wholly unrealistic conditions for such immunity, namely that these places are not guarded by military personnel, and else that there are wounded or sick persons in the premises. If a hospital or other place of care was occupied by the enemy, the latter could not expel the wounded already there. Material found in ambulances was to be left free (because it would be confined to the strictly necessary to carry out the mission). Conversely, material found in hospitals could be war booty. Sanitary vehicles and places, as well as persons, were signaled by the protective emblem. The Red Cross was replaced in the Russo-Turkish war of 1877 by a red crescent on the Turkish side, which was accepted by Russia. The rules discussed were subjected to many violations or recriminations (e.g. the Franco-Prussian War of 1870), but sometimes also scrupulously respected (e.g. by Russia in the mentioned 1877 war, but not by Turkey; or in the war between Serbia and Bulgaria of 1885). There have been proposals to provide sanctions to the 1864 Convention, such as though an international penal tribunal (a chimeric idea).
This quite technical chapter by Pillet shows how the inadequately drafted law of 1864 was progressively improved and remedied to obtain the modern law on the wounded and sick, as expressed in GCs I and II of 1949. Thus, for example, the modern law does not consider that the protections for installations depend on the actual presence of injured or sick personnel within them. Protection is granted according to the destination of the place, which must be able to function as soon as disabled personnel are transported there for receiving the appropriate care. The 1864 Convention, limited to land warfare, contained ten short provisions. GC I of 1949, its successor, contains 64 longer provisions and two annexes. This comparison gives a concrete idea of the development of the law in this area.
Relations between Belligerents
Pillet’s Chapter IX deals with relations between belligerents during war. Pillet understood that during war, belligerents must have the least possible direct relations, for example to curb espionage. But some relations between them were regarded as indispensable. Thus, as ever, belligerent agreements (or military conventions) were concluded. Their scrupulous respect was the first and paramount rule of the law of war.
Agreements between belligerents were most often based on the sending of emissaries (“parlementaires”). There was no duty to receive such emissaries, however. But in any case, an emissary enjoyed immunity against attack and was to be left free to rejoin his own lines. Measures could be taken to avoid him spying, such as by blindfolding. Unfortunately, it still occurred with some frequency that parlementaries were injured or killed. This happened in various situations in the 1870 Franco-Prussian war.
As for agreements between belligerents, the most frequent were agreements for the exchange of prisoners of war; for the redemption or ransom of commercial ships prized by military ships of the enemy; for the neutralization of some part of the territories of the belligerents; for the treatment or transport of wounded or sick personnel; and for armistices and capitulations (surrender). There were also unilateral acts accorded by one party alone, such as permitting safe-conduct or safeguards (in French sauvegardes). These were special protections given to certain buildings.
The chapter also provides a detailed discussion of the different types of armistices and the law applying to them. In the context of surrenders, Pillet discussed the extent to which the hoisting of a parlementary flag (which is the white flag) obliges the adverse belligerent to cease fighting and the exceptions to a possible obligation of this type (such as if the surrender is proposed mainly to gain time in the approach of a sustaining army). There is now a sort of common law reflected in the surrender agreements, with almost the same stipulations on the duties of the surrendering party.
Overall, it must be said that the practice of repeatedly concluding military conventions has in the first place paved the way to the development of the general law of war, namely through the adoption of some general conventions as the one of 1864. Moreover, such military agreements are often the basis for the development of customary international law on the subject matters they treat. This is the case for the injured, for the prisoners, for capitulations, and for still other objects.
Chapter IX deals with issues of the law of war and less with questions related to what we call today IHL (apart from agreements concerning protected persons). Two things are remarkable. First, the role of special agreements for implementing modern IHL has still increased in the twentieth century, notwithstanding a significant wealth of multilateral conventions. The number of such special agreements is considerable.
Second, such special agreements have often been the first stage for the development of multilateral conventional law and customary IHL. It is today often forgotten that the law of armed conflict was not just “invented” in the various conferences adopting the multilateral treaties on IHL, but that this law was progressively prepared and formatted though the trial and error-process of special agreements, before taking the stage of “general” international law, be it conventional (universal codifications) or be it customary. The law of neutrality is an excellent example of this. Old bilateral agreements on remaining “idle” in case of war (in German Stillhalteabkommen) progressively transformed themselves into a new general law of neutrality, at latest in the course of the nineteenth century.
Sanctions of the Laws of War
Chapter X of Pillet’s Le Droit de la Guerre deals with sanctions of the laws of war. The sanctions of the laws of war are certainly the most difficult question of our subject matter. The sovereign independence of States impeded the existence of a superior authority able to enforce the law. Thus, other devices were required.
The following were paramount: 1) scrupulous respect for the laws of war was the condition for obtaining respect by the other party; 2) a meticulous collection of evidence of breaches was important, so as to be able to confront the adverse party with facts which may not be in its cognizance; 3) there was also the suppression of violations under the applicable military criminal codes; (4) finally, reprisals were the sanction of the laws of war, and they remained necessary in a number of cases.
Of course, the problems with reprisals are manifold. It may be difficult, in the tumult of the war, to determine the true spirit and intentions of the enemy, thus its intentional or only accidental breach of a rule, and so on. Further, reprisals hit innocent persons and established therefore a collective responsibility. Consequently, their use often only led to further escalation.
In any case, reprisals remained lawful under the law of war. However, there were limits to be respected: a) in no case could a reprisal be based on treason or the breach of the pledged word, or on perfidious means (such as the use of poison); b) in no case could it be directed against persons not participating to hostilities, namely women, children, persons alien to the profession of arms; c) it could not be directed against protected persons granted inviolability, such as the injured; d) if the breach of the law emanated from military persons, reprisals could be directed only against the adverse military (and only if there was there a necessity to act in order to curb the unlawful behavior); conversely, if the breach emanated from non-combatants, no reprisals could be taken against the innocent civilian population, because such reprisals are unnecessary. No one had control over such persons. Thus, the reprisals could not lead to reestablishing a better discipline or to deter future violations.
Recourse here must be had by a belligerent to the severity of martial law, to suppress such action and to prevent the propensity of engaging into it – if necessary and proportionate, also by pronouncing death penalties. If that was not sufficient, a belligerent could also temporarily expel a population from an area.
Lastly, there were conditions on the exercise of reprisals. First, there must have existed a prior violation of the law of war (the numerous uncertainties of the law were highly problematic). To the extent feasible, a prior warning must have been given, allowing possibly to find another solution to the initial violation. The order of reprisal must have in principle emanated from the chief of the army. And the reprisals must have been measured to the gravity of the initial violation (in our vocabulary: they must be proportionate).
This rule works both ways. Too weak reprisals were unhelpful to address the violation and were thus prohibited because they were simply unnecessary. Too harsh reprisals were arbitrary because they breached the rule of equilibrium just exposed. Ideally, one would here remain within the bounds of the talion (i.e. of mirroring action in kind, prisoner of war against prisoner of war and so on). The reprisals must also have been directed first against the State and its property, and only subsidiarily, if unavoidable, against private persons and their property.
The discussion of the law in this chapter puts into a glaring light the developments since the end of the nineteenth century. During that era, the lines of argument were often founded on notions of “necessity” (what is not necessary for the operational aim is not allowed) and of “honor.” Both these notions have been cut back in the current law in favor of more detailed regulation. Moreover, the current law is based on a significant curtailment of reprisals as a means of respect for the law of armed conflict. In some areas, such as the law on protected persons, reprisals have been almost completely outlawed. Whereas Pillet still found the sanction of the laws of war essentially on reprisals, the modern exposition of the law would first insist on a host of other means and mention reprisals as merely one of them, and one which should be resorted to only when unavoidable.
Finally, one can only be struck by the complete absence of any international mechanism of law control or enforcement. The twentieth century has tremendously developed that branch of law governing “sanctions” in IHL be it by means of inquiry and fact-finding through international commissions; through protective powers or ICRC monitoring; by UN Security Council action; through action of International Organizations; through international tribunals; through international NGO’s like “Geneva Call”; or through domestic criminal courts acting under international obligation, e.g. of exercising universal jurisdiction. International law in this area has been considerably enriched and broadened, even if the effectiveness of the means remains unsatisfactory. One can therefore speak without exaggeration of an “Achilles Heel” of modern IHL. Effective efforts to improve the situation by new mechanisms have not yet emerged. To date, they all have been bogged down by States jealous of their sovereign independence, especially as it relates to an area they consider critical to their vital interests.
Concluding Thoughts
A careful reading of old treatises on the law of war shows impressively the main shifts in our subject matter. Among others, the following can be mentioned: (1) the step from a limited and gap-riddled body of law to a codified detailed area of international law; (2) concomitantly, the shift from general arguments on necessity, honor and excess to more detailed rules and legal reasoning based on them; (3) a progressive humanization of the law, going from a law of war to an IHL, e.g. on the treatment of protected persons and allowability of reprisals; (4) a move from subjective triggers of the law of war (namely through declarations of war) to an objective trigger (events occurring on the spot); (5) the focus on the protection of civilians, which was much less present in the nineteenth century; (6) a significant diversification of the means of sanction of the law. All these areas of progress have, however, not led to a body of law commanding the respect and thus displaying the effectiveness it deserves. And therefore, there remains today often as much disillusionment after heavy armed conflicts as there was in Pillet’s time, mainly with the general public, but also among IHL specialists. At the same time, we see keen efforts to respect IHL, e.g. in the Ukrainian army.
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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Imperial War Museums
