Lieber Studies Making and Shaping LOAC Volume – “Law of War Unmaking”

Editors’ note: This post is based on the author’s chapter in Making and Shaping the Law of Armed Conflict (Sandesh Sivakumaran and Christian R. Burne eds. 2024), the tenth volume of the Lieber Studies Series published with Oxford University Press.

Professor Sivakumaran and Captain Burne’s Lieber Studies volume skillfully frames law of war formation and development as essential subjects of study. The volume’s chapters reveal that behind many debates about the substance and meaning of the laws of war are fundamental questions about international law making itself. How “conventionally” or “progressively” we understand the process that makes the law of war greatly influences how we perceive its contents.

But our field devotes comparatively little attention to how States retract, repeal—or “unmake”—the laws of war. This post highlights portions of my chapter entitled “A Prologue to Law of War Unmaking” which explores the legal tools for repeal, revocation, or abandonment of law of war treaty provisions. These processes are readily found in both general international law and the law of war itself. And a strong case can be made that several law of war treaty provisions are, or should be, regarded as terminated under these procedures. Yet they have not been addressed with the frequency or rigor applied to procedures for making or adding to the laws of war. The chapter and this post are intended to prod States and others to devote greater attention to law of war “unmaking.”

Treaty Procedures

Although customary international law remains an important regime during armed conflict, particularly with respect to targeting operations, multilateral treaties are the backbone of the law of war. Whether by treaty or custom, the source of most rules for formation, adoption, interpretation, modification, suspension, and termination of those law of war treaties is the Vienna Convention on the Law of Treaties. True, the Vienna Convention is inapplicable to treaties that entered force prior to it (art. 4). As a formal matter then, many law of war treaties including most of the Geneva Conventions and their progeny are not subject to the Vienna Convention. But many apply its rules to those treaties nonetheless, judging that they reflect customary international law applicable to such earlier treaties.

The Vienna Convention addresses treaty termination in a series of articles. These rules largely reflect a general presumption that treaties and their provisions continue after entering into force. In many important respects, the Convention resists treaty termination. For instance, according to the Convention, treaties may only be terminated if the parties originally intended to admit termination as a possibility expressly or impliedly (art. 56(1)).

Withdrawal, also referred to as renunciation, is the primary means of treaty termination. Although each form of termination requires notice to other parties—either in accordance with the administrative provisions of the treaty in question or the Vienna Convention’s own default period—States generally need not express any justification for withdrawal. Nonetheless, the Convention identifies four general bases for treaty termination including,

– material breach;

– impossibility of performance;

– fundamental change of circumstances; and

– emergence of a “new peremptory norm of general international law.”

However, none of these bases has featured regularly with respect to law of war treaties. It is a remarkable fact considering the great number of law of war treaties in force, the variety of States party to them, the ever-changing conditions of warfare they regulate, and the frequency of their disregard or purported breach. It is also remarkable considering the wide variety of means by which a treaty or any of its provisions may be terminated. My chapter catalogs the Convention’s various means of treaty modification or termination including formation of subsequent treaties, peremptory norms, subsequent practice and agreement, and reservations. It also addresses means of termination specific to law of war instruments and others not clearly included in the Vienna Convention including significant attention to the notion of desuetude.

At its essence, desuetude recognizes a form of practice-based obsolescence. It acknowledges that treaty provisions may be considered defunct through deliberate and consistent non-compliance or non-enforcement by States. In this regard, the rapporteur for the International Law Commission project that led to the Vienna Convention’s adoption observed,

lapse by the mere passage of time as such, failure by both or all the parties over a long period to apply or invoke a treaty or other conduct evidencing a lack of interest in it, may amount to a tacit agreement by the parties to disregard the treaty, or to treat it as terminated . . . (p. 28).

Admittedly, neither the Statute of the International Court of Justice nor the Vienna Convention explicitly recognizes desuetude as a means of treaty termination. But decisions of the former have recognized the concept. And the latter’s provisions on treaty modification and changed conditions align in some respects with desuetude. Whatever its legal grounding, desuetude envisions that States, though fully capable of performing a treaty obligation, may by policy then practice, routine then custom, later by agreement, and ultimately as a matter of law excuse themselves from those obligations over an extended period.

Unmade Laws of War

Several law of war provisions from widely ratified treaties are ripe for consideration as having fallen into desuetude. They include rules from nearly every chapter of the law of war catalog including its provisions on material application, protection, neutrality, as well as its supervisory and enforcement regimes.

For example, to remedy the practice of belligerent occupants prematurely abandoning humanitarian and administrative duties they owe in occupied territory, the Fourth Geneva Convention extends operation of its provisions for “one year after the close of military operations.” The rule was always a product of arbitrary idealism; States never put it into routine practice and preempted it by a later article of Additional Protocol I to the Geneva Conventions (art. 3(b)). The one-year rule is now effectively obsolete even for States not party to Additional Protocol I. Yet still one finds little expressed confirmation to that effect from States or other resort to its termination.

Obsolescence can also be detected in law of war rules applicable to neutral States. As but one of several examples, Article 11 of the 1907 Hague Convention V instructs “A neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them . . . .” Yet few States have ever done so, and still fewer States have alleged breach on the part of neutral States failing to do so. Troops of belligerent powers are now routinely stationed in or transit through neutral States’ territory freely. Though no State has initiated formal means for its termination, the Article 11 internment imperative is effectively a dead letter.

Among other provisions addressed in the chapter, a case for desuetude can also be made for important secondary laws of war. Sometimes conceived as “rules about rules,” secondary rules often prescribe modes of application or enforcement of primary rules of conduct. Examples from the law of war include the Geneva Conventions’ protecting power regime and its grave breaches system.

The former, initially adopted as a compulsory means of supervising implementation of the Conventions and deemed a “lynchpin” of the Conventions, is also among their most notoriously disused provisions (para. 1186). Belligerent States have reportedly used the protecting powers system in only five conflicts since adoption of the 1949 Geneva Conventions. While still a viable option to belligerent States, persistent disuse accompanied by nearly universal State acquiescence to obsolescence may make one of the strongest cases for desuetude in the laws of war.

Meanwhile, the grave breaches regime, while showcased as one of the most significant improvements to the Geneva tradition’s instruments, has been effectively disregarded for much of the Geneva Conventions’ life. States routinely failed to honor their obligation to search for and prosecute or extradite persons responsible for grave breaches of the Conventions. Many States have also failed to enact the domestic laws required by the grave breaches regime. Yet, these failures have drawn neither invocations of responsibility nor regular sanctions from the universal community of States parties to the Conventions. It is entirely possible that the obligatory component of the grave breaches regime is obsolete, leaving in its place a mere prerogative to prosecute or extradite.

Obstacles to Unmaking

Addressing the possibility of law of war desuetude, a widely respected instructional series observes, “In practice there has never been such a denunciation” (p. 150). So why, in the face of flagrant neglect and obsolescence and with readily available processes for termination, have States not expressly withdrawn from or otherwise disclaimed these and other law of war rules?

The chapter explores the possibilities in depth. Some explanations relate to difficulty assessing the legal significance of recurring breaches of the laws of war. Often, law of war violations merely reflect a State’s negligence toward observance or implementation of a rule. Such cases usually say little about a State’s broader outlook on the integrity of the rule breached.

In other cases, breach may simply reflect a cost-benefit determination that violating a rule bears fewer costs than compliance, a situation contract law refers to as “efficient breach.” Like neglect-based breach, efficient breaches of the laws of war usually say little about the breaching States’ view whether the obligation in question is intact other than to say that another obligation or interest momentarily outweighed it. Neither case calls for an assessment of the legal status of the obligation in question.

But in other cases apparent breach can indicate that a State no longer regards itself bound by the rule in question. This is particularly true when violations are deliberate, repeated, widespread, and fail to provoke condemnation by other States to whom the obligation is putatively owed. It is in these cases the question of neglect of unmaking is most acute.

Explanations for neglect of unmaking in such cases may relate to the enormous difficulty of convening the diplomatic events that have historically recalibrated law of war treaty regimes. States may be understandably reluctant to repeal or second-guess the carefully formed bargains struck at treaty conferences. Neglect of unmaking may also be traced to its procedural difficulty. While State representation at diplomatic conferences affords an opportunity to secure express agreement by States on treaty formation, States rarely convene or meet exclusively to repeal or rescind provisions of those instruments. The agreement required for formal repeal can only be discerned then from the often incomplete and messy realm of subsequent practice.

Finally, repeal efforts do not attract the sorts of advocacy projects that, of late, have seized law of war reform agendas. Many, if not most, law of war instruments have been inspired and initiated by large, well-organized humanitarian advocacy movements. These campaigns appropriately showcase the plight of war victims that have suffered under existing rule regimes to secure either additions to or amendments of the laws of war.

But the “victims” of overly restrictive rules—the sorts of rules that it seems most frequently fall into obsolescence—rarely find voice in such coordinated reform movements. The combatants who may strain or even die attempting to observe unrealistic rules do not feature prominently or directly in reform campaigns. Meanwhile it is often difficult or impossible to identify the unaccomplished objectives or failed missions owing to inapt legal restraints. More often the rules in question are simply and quietly ignored without any deliberate or systematic effort to secure lasting or overt legal effect, leaving them “on the books” so to speak but otherwise irrelevant.

Concluding Thoughts

States do not form or undertake treaty-based law of war obligations casually. Treaty formation, adoption, and ratification reflects the pinnacle of the international law formative procedure. Though laborious and imperfect, no process of international lawmaking better secures or establishes the consent that is so critical to attracting adherence by States. Neither should treaties and their provisions be discarded casually. The high bar for renunciation set by the Vienna Convention and other uncodified means of treaty unmaking contribute similarly to compliance by States. But, as my chapter argues at greater length, a realistic and effective law of war regime requires the same devotion and rigor to unmaking as it does to making and progressive development through interpretation.

***

Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.

Photo credit: U.S. Army, William Farrow