The Laws of War: New weapons, new political entities make regulating conflict more difficult than ever

By Steve Thorpe

Legal News

Can international laws regarding warfare make it more humane and protect civilians from suffering? Will combatants and their groups or nations follow the rules?

Wayne State University Law School's Program for International Legal Studies recently presented the program "Is the Law of Armed Conflict Outdated?" where answers to those and other questions were discussed. Exotic new weapons and confusing new political entities make it more difficult than ever to regulate conflict.

Associate Dean and Professor Christopher Waters of the University of Windsor Faculty of Law, who is an expert on the legal aspects of armed conflict, spoke and answered questions during the program.

Waters has taught and conducted research in public international law, the law of armed conflict, military law, post-conflict reconstruction, law and politics of Eastern Europe and legal professions. He has extensive field experience in the Caucasus and Balkans, including with the UN Kosovo Mission in 1999-2000. He was also used by the government of Canada as a monitor for elections in Eastern Europe.

Waters received the Windsor Student Law Society Faculty Award for teaching and a University Special Recognition Award for Excellence in Research in 2009.

The laws of war have generally been separated from the politics, economics and cultures that start wars.

"The Law of Armed Conflict asks the question 'Is it legal?' Waters said. "The law is not concerned with the justifications of the use of force in the first instance. Why people went to war in the first place is irrelevant to the law."

Waters also pointed out that while the early efforts of the Red Cross and international treaties of the last 200 years are usually seen as codifying wartime behavior, the principles involved are much older.

"Although we often start with the Geneva Convention of the mid-19th century, most religions and cultures have in their texts and stories notions of the law of armed conflict," he said. "In the books common to the three Abrahamic religions, concepts of mercy for women and children and even environmental protection -- spare the fruit trees after you've occupied a territory -- are present."

Waters believes that one of the root causes of friendly relations between Canada and the U.S. was the behavior of both sides during and immediately after the War of 1812.

"The Americans and the British during the War of 1812, by and large, attempted to abide by the law of armed conflict," he said. "I read a diary by a surgeon of the American army who was captured by the British and treated in accordance with the laws of prisoner of war status. I'm convinced that one of the reasons that there then was -- and still is -- a period of peace is because there was compliance with the law of armed conflict on both sides."

As recently as the Falklands War in 1982, adherence to the laws of war has made for a more "civilized" conflict and a quicker return to peace.

"Argentina and Britain would never have been able to normalize relations as quickly as they did after the Falklands War had they not agreed to limit the war to a specific geographical zone and to abide by the law of armed conflict," Waters said.

Some of the developments in international affairs and conflicts have made the Laws of Armed Conflict seem naïve or even quaint.

"There's currently a lot of soul searching among academics who ask, 'Are the laws of war obsolete?' said Waters. "What are some of these new threats? One is that there are new actors on the battlefield. New non-state actors and armed groups. Private military companies. Asymmetric warfare. If you can't beat a conventional adversary like the United States on the battlefield, you engage in guerrilla tactics, sometimes while blending in with the civilian population."

Waters also said that he believes that some of the new technology, like the drones that the U.S. is using to target enemies, raises fewer questions than some people believe.

"Although we have new techniques of warfare like drone warfare or cyber warfare, the rules automatically apply to these new techniques of war," he said. "Drones don't actually raise new questions. Whether you're using a drone or a biplane or a zeppelin to drop a bomb, the critical distinction is to distinguish between civilians and military personnel. That remains the core principle. So technology changes, but the rules -- particularly the rule of distinction -- does not change."

Published: Wed, Apr 24, 2013