The international community is gearing up towards commemorating the 75th Anniversary of the United Nations and also launching the largest global dialogue on cooperation for the future. https://www.un.org/en/un75. The UN succeeded the League of Nations, and was envisioned with a determination to save the succeeding generations from the scourge of war as articulated in the preambular provision of the UN Charter 1945. https://www.un.org/en/sections/un-charter/preamble/index.html. The year 2019 marks the 70th Anniversary of the Geneva Conventions of 1949, also described as the law of war, updating previous instruments, after WWII to regulate and mitigate the effects of war.Both documents, the UN Charter 1945 as well as the Geneva Conventions of 1949 were acceded in the aftermath of the WWII and both remain among the very few (near) universally accepted instruments in the world.
Hence, it is rather timely to revisit, objectively observe how the two monumental developments in modern international legal history have evolved over the years and observe the contemporary trends. There were a few approaches that were considered in terms of structuring the observations. Some of the choices included alluding to taking specific major turning points/departures in legal interpretation, alliance reconfigurations, regional political transformations, specific flashpoints etc. With the challenge of encapsulating seven decades in a blog post (necessitating quick reads), the analysis is structured on the basis of three broad phases, the cold war era up until the fall of the Berlin wall, succeeded by the short but tumultuous unipolar moment and thirdly the contemporary era witnessing the rise of China and revival of Russia. These phases witnessed certain movements, running concurrently such as emergence and formation of newly independent states, transition in the international political economy, waves of violence such as national liberation movements and unconventional warfare. Simultaneously occurring were rapid developments on two fronts, namely defence and weapons and the other urbanization. The advancements weapons technology and the diffusion thereof as well as the transformation of villages to towns to cities and dense population in urban settings are closely interlinked from a humanitarian perspective. The development of weapons of mass destruction has blurred the distinction between what is strategically offensive and what is strategically defensive. The influential German jurist Oppenheim, a person whose life and work very much coincided with anarchist revolutionary wave of political violence, in perhaps his most influential work on International law chose to write 2 volumes, one dedicated to Law of ‘Peace’ http://www.gutenberg.org/ebooks/41046 and the other dedicated to Law of ‘War and Neutrality’ https://gallica.bnf.fr/ark:/12148/bpt6k93563t/f3.image . Arriving at a consensus as to what denotes war and what denotes peace continues to be elusive and the latter has rather become more complicated in these 7 decades. Perhaps the least contentious description of peace would be the absence of hostilities. The period also witnessed an irrelevance of historic concept of ‘long peace’ and increasing relevance of ‘regional peace’. Needless to mention that the words ‘law of war’ has during this period, gradually subsumed by words ‘law of armed conflict’ and later ‘International Humanitarian Law.’ Considering civilians as part of the Public International Law has not been without tensions. Some of which can be traced back to the feeble effort in the intermediate period between the two great wars when a Tokyo Draft was proposed in the 1930s. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=85EE9A58C871B072C12563CD002D6A15. The draft never saw the light of the day. Fissures emerged in Post-world war 2, in the negotiations leading to the adoption of the Geneva Conventions of 1949, in including internal armed conflicts (in particular common article 3). Some prefer to call this mellowed down provision, a convention within a convention. The evolution of International law during this period of seven decades has been remarkable in many senses, but in terms of establishing universal, international rule of law, there is lot more to be done. The interface between law of peace and law of war on matters of occupation, International human rights, refugee law, IDPs, Outerspace, Cyberspace, civilians and combatants, use of force and pre-emptive use of force are illustrative of some of the stresses within the international community. Hence, the foregoing analysis would not be compartmentalized, on law of peace and law of war, as could be done a few centuries ago. As mentioned earlier it would be in three parts, the binary period of 1945-1991, post-cold war unipolarity and thirdly the contemporary era. In a state driven system of international order and law, it would be rather appropriate to commence the analysis from the standpoint of two postulates which states may assume to opt as policy. First, As Kautilya in his advices to the Mauryan King Chandragupta, The Arthashasthra https://archive.org/details/Arthasastra_English_Translation and Sun Tzu in his treatise ‘The Art of War, https://sites.ualberta.ca/~enoch/Readings/The_Art_Of_War.pdf conveyed a few thousand years ago, the ultimate victory lies in winning without fighting, which also means war is the last resort to settling disputes. Kautilya of the west, Machiavalli also gave similar advice to The Prince https://ebooks.adelaide.edu.au/m/machiavelli/niccolo/m149p/complete.html. The other postulate is War is an extension of policy by other means as conveyed by Von Clauswitz in his seminal book On War http://www.clausewitz.com/readings/OnWar1873/TOC.htm.
A discourse of war and peace needs to consider these postulates, considering that as on date there are in excess of 40 conflicts taking place around the world. Not to forget that several other conflicts (and concluded) have taken place post 1945 http://www.systemicpeace.org/warlist/warlist.htm and the enormous suffering and damages that were caused since the operationalization of the UN Charter and the Geneva Conventions. https://blogs.icrc.org/cross-files/annual-reports/
Coming soon. Part I Legal History of War and Peace during the Cold War era
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