Violence: Legitimate

The Legitimation of Violence

Part 1

A Critical History of the Laws of War

By

Chris af Jochnick and Roger Normand

HIGHLIGHT:

"Who controls the past controls the future;
Who controls the present 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.

Coalition 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.

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 guidelines.

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, but rather the continuation 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 reputation for targeting only military sites, most independent studies have put the civilian death toll at over 100,000.

This analysis of the Gulf War underscores the difficulty of using law to humanize war, but does not condemn the effort itself. The requirements of global security and prosperity in an interdependent world may yet lead countries to develop laws that impose effective humanitarian 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.

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The Legitimation of Violence

Part 2

A Critical Analysis of the Gulf War

By

Chris af Jochnick and Roger Normand

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(Harvard International Law Journal, Volume 35, Winter 1994, pp. 49-95)

(Harvard International Law Journal, Volume 35, Spring 1994, pp. 387-416)