How to write laws of war for a wicked world

Hindustan Times

2 days ago

WHEN lists are compiled of great military commanders, Gustavus Adolphus, Sweden's king from 1611 to 1632, is often near the top. Innovation and daring were his watchwords, and had to be. Aged 16 when he took the throne, he inherited a realm embroiled in three separate wars. Sweden has 'no friends' and 'all our neighbours are our enemies', the teenage king bleakly wrote.
It was a fearful, blood-soaked time. Institutions that once claimed universal moral authority—notably the papacy and the Holy Roman Empire—were crumbling under assault from Protestant rulers and rebels. To survive this age of disorder the young king put his faith in the new. Leading his own armies into the field (and eventually dying in battle), he vanquished stronger opponents with the help of advanced weapons and fast-moving mobile tactics, prompting some historians to dub him 'the father of modern warfare'. He took new-fangled ideas into combat, too. By the grim standards of his day, Gustavus Adolphus stood out for the strict discipline and (relative) martial restraint that he imposed on his troops. In this, no papal edict guided Sweden's king, a Protestant intent on making his country one of Europe's great powers. Instead he was following both his conscience and arguments set out in a work that—it is said—he kept under his pillow while on campaign: 'On the Law of War and Peace'. This remarkable treatise was published in 1625 by Hugo Grotius, a Dutch lawyer, historian and poet. For more than a century, Grotius has been hailed as 'the father of international law', for setting out detailed, universal rules to determine when wars are just and lawful.
Strange to say, the image of an ambitious warrior-king studying Grotius in his tent should offer some comfort four centuries later. Once again the world is entering an age of disorder. Multilateral institutions founded after the second world war, from the United Nations to international courts that hear charges of crimes against humanity, are losing their authority. The final fate of the post-1945 system will not be known for some time. That is no reason to wait, resignedly, for the world to slide into anarchy and unconstrained violence. If new arguments are needed to limit harms committed by men of violence, the past is a good place to look.
The Telegram has praised Grotius before, and makes no apologies for revisiting his wisdom now. He stands out for his ability to craft arguments that appeal to the powerful, reflecting his own contacts with kings and their counsellors as a diplomatic envoy. He also worked at an important turning-point in intellectual thought. Medieval theologians and church leaders focused on lawful and unlawful reasons for going to war. Sovereigns and soldiers fighting 'just' wars faced few limits on their conduct, while opponents without justice on their side had no inherent right to use force at all. But a problem lurked in that approach. Grotius lived at a time of brutal, often sectarian wars, in which all sides were sure they had God's blessing and were fighting for a just cause. He offered a solution. During a war, he wrote, identical rights and obligations should apply to each belligerent, who should fight as if they were upholding justice. That advanced his real aim: the crafting of laws to govern the conduct of war.
Grotius would have been startled by such modern bodies as the International Criminal Court, which claim the right to haul errant generals or political leaders into the dock. Outsiders are ill-qualified to judge the limits of just war or self-defence, he wrote, calling it 'altogether preferable' to leave such decisions 'to the scruples of the belligerents rather than to have recourse to the judgments of others.' He believed that necessity could justify harsh acts, such as the bombarding of a besieged city. That did not make him an apologist for war crimes. Acts which do not hasten a war's end can never be justified, he counselled, including rape and the wanton killing of women and children. Crucially, he argued that using gratuitous and reckless cruelty, for instance during the taking of cities and towns, is both morally repugnant and also counter-productive. Instead he counsels 'moderation' and the sparing of all enemy property not needed for the war effort, as well as precious assets such as fruit trees used for food. In his telling such forbearance is wise because it avoids inducing 'despair' in an enemy, which can be turned into a 'great weapon' against an attacker.
A man of his time, Grotius applied different standards to European and non-European rulers. Critics grumble that he used his legal skills as an apologist for colonial expansion by the Dutch East India Company. Still, his moral arguments about the laws of war rested on universal foundations. People are social beings, he says, with such a 'desire for society' that their love for humanity trumps the selfish pursuit of advantage seen among lesser beasts.
When flawed rules are better than no laws
For good or ill, self-interest has inspired rules regulating violence for millennia. In her fine book 'The Rule of Laws: A 4,000 Year Quest to Order the World', Fernanda Pirie, a professor of the anthropology of law at Oxford University, writes that the biblical injunction 'an eye for an eye' is not a demand for revenge. It is, she suggests, a law designed to define the limits of acceptable retaliation, with clear echoes in still-older Mesopotamian legal codes that also sought to prevent blood feuds from escalating. Her book notes how ancient rulers sought legitimacy by writing laws. The oldest laws found by archaeologists, dating from 2112BC, were proclaimed by Ur-Namma, an 'ambitious military leader' who had just toppled a ruthless warlord. 'I did not deliver the orphan to the rich. I did not deliver the widow to the mighty,' he boasted.
This is not to suggest that ancient honour codes are a substitute for the Geneva Conventions. It is an appeal to be practical. To protect the weak, convince the strong that rules serve them, too.