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Law, Morality, and War After Vietnam

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BondJames E., The Rules of Riot: Internal Conflict and the Law of War. Princeton, Princeton University Press, 1974, 196 pp., $11.50.
JohnsonJames Turner, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200–1740. Princeton, Princeton University Press, 1975, 274 pp., $12.50.
MooreJohn Norton, ed., Law & Civil War In The Modern World. Baltimore and London, The Johns Hopkins Press, 1974, 587 pp., $8.95 paper.

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Published online by Cambridge University Press:  18 July 2011

David P. Forsythe
David P. Forsythe
Affiliation:
University of Nebraska
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Type
Review Article
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World Politics , Volume 28 , Issue 3 , April 1976 , pp. 450 - 472
Copyright
Copyright © Trustees of Princeton University 1976

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References

* The author wishes to thank John J. Weltman of the University of Nebraska for comments on an earlier draft of this article.

1 To be sure, some observers have not been convinced of the utility of this line of inquiry. Wolfgang Friedmann, for example, continued to argue that effective legal regulation of violence in world politics would come only after the development of law in social and economic fields (see Moore, 576).

2 For present purposes, “morality,” “religion,” and “ideology” are used as synonyms. This approximates usage by Johnson: “‘Ideology’ … is used to refer to belief structures that are discretely based and different from one another, and no value judgment as to their contents is implied. In this sense of the term both Communism and Fascism are ideologies, and one may speak also of Puritan ideology, the ideology of the Pure Land School of Buddhism, or indeed the ideology of a world religion such as Christianity” (p. 12). Each of the three terms—morality, religion, ideology—refers to a belief structure used to distinguish right from wrong with a metaphysical content of crucial importance. Cf. Robert W. Tucker, who uses “morality” to refer to feelings of sympathy, in Robert Osgood, E. and Tucker, Robert W., Force, Order, and Justice (Baltimore, Johns Hopkins Press 1967), Part II, Section 1, pp. 195–218Google Scholar. “Expediency” is used to refer to judgments based on self-interest. What is legal may be based on morality, or expediency, or both.

3 For a recent review of some of the literature regarding decline in the functionality of war, along with the presentation of a different point of view, see Weltman, John J., “On the Obsolescence of War: An Essay in Policy and Theory,” International Studies Quarterly, xvm (12 1974), 395–416. See alsoCrossRefGoogle ScholarNorthedge, F. S., ed., The Use of Force in International Relations (New York: Free Press 1974)Google Scholar.

4 No doubt there is “pure moral” support for the Charter's ban on aggression and intervention because of concern for the injustices to individuals that would result from such action. And there is some “moral-ideological” support from neo-Hegelians who oppose aggression and intervention because it threatens nation-states and the nation-state system, both of which are viewed as intrinsically good.

5 See Lillich, Richard B., ed., Humanitarian Intervention and the United Nations (Charlottesville: University of Virginia Press 1973)Google Scholar.

6 See Tucker, Robert W., The Just war (Baltimore: Johns Hopkins Press 1961)Google Scholar;Barnet, Richard, Intervention and Revolution (New York: World Publishing Co. 1968)Google Scholar.

7 American Journal of International Law, Vol. 69 (04 1975), 482Google Scholar.

8 Ibid., 483.

9 The Functions of International Law (Chicago: Rand McNally, 1966) chap. 5Google Scholar.

10 See Franck, Thomas and Weisband, Edward, Word Politics (New York and London: Oxford University Press 1971)Google Scholar; and Henkin, Louis, How Nations Behave (New York: Praeger 1968)Google Scholar. Both of these works analyze the diplomatic and psychological costs paid by some nations for certain actions.

11 At the 1974 and 1975 sessions of the Geneva Diplomatic Conference on Humanitarian Law, the most rapid and extensive agreements were reached in Commission II, which dealt with medical transport and other medical-technical-humanitarian subjects, largely (but not entirely) devoid of diplomatic and military significance. The norms adopted were based primarily on morality and commanded wide support.

12 For a review of events leading up to the Conference and a survey of major issues, see Baxter, R. R., “Humanitarian Law or Politics: The 1974 Diplomatic Conference on Humanitarian Law,” Harvard Journal of International Law, xvi, No. 1 (1975), 1–26Google Scholar.

13 Conference Document CDDH/41, 12 March 1974, p. 5; also passim.

14 See the United Nations Declaration of the Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter, General Assembly Res./2625 (XXV), 24 October 1970. Peoples are said not to have a right to self-determination in a territory “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour.”

15 Black, Cyril E., “Conflict Management and World Order,” in Black and Richard Falk, A., The Future of the International Legal Order, Vol. Ill, Conflict Management (Princeton: Princeton University Press 1971), 3–14Google Scholar; see also Moore, 68.

16 See Forsythe, , “The 1974 Geneva Conference on Humanitarian Law: Some Observations,” American Journal of International Law, Vol. 69 (01 1975), 77–91CrossRefGoogle Scholar, for an analysis of the negotiations. Cf. Baxter (fn. 12).

17 Special norms for wars of self-determination could have practical significance. Claims that such norms should be applied might increase the diplomatic pressure on an actor, or generate internal pressures, leading to application of at least some of the rules in at least an informal way. See Forsythe (fn. 16), 89.

18 Ulam, , The Unfinished Revolution (New York: Vintage Books 1964)Google Scholar.

19 If, however, the two sides in a civil war were of roughly equal power, a third party might prefer rule one over the entanglements of involvement on the governmental side. In the Ethiopian civil war, given a more powerful Eritrean independence movement—with the capacity to make attacks on American personnel and installations—the State Department might like an excuse for not responding to the government's request for military assistance, providing support for Moore's first rule. But support for the rule would therefore depend on a highly fluctuating perception of the dangers of involvement or noninvolvement. It would still be difficult to get consistent support for the rule, especially in those situations where the challengers appeared weak. In the Angolan civil war, the Executive has acted in opposition to Moore's first rule and in keeping with the logic expressed in this review article. The Congress, on the other hand, has tried to develop an Angolan policy consistent with Moore's rule.

20 Farer's writings on this point, as well as critiques by Moore and Friedmann, are referred to in Moore (xiv, fn. 3). In general, see Vincent, R. J., Non-Intervention and International Order (Princeton: Princeton University Press 1974)Google Scholar.

21 Both Butler and Firmage note (in Moore) that Soviet spokesmen and writers have been careful to keep Soviet policy and legal doctrine vague on the subject of intervention into civil wars (pp. 317–18, 387–88, 397). It is not without significance that the Soviets, while sending their military advisers to the civil war in Angola, have avoided sending their combat troops, preferring to see Cuban fighters involved.

22 See the chapters by Brownlie and Lillich (in Moore), and the literature cited therein.

23 Visscher, Charles de, Theory and Reality in Public International Law, trans, by Corbett, P. E. (Princeton: Princeton University Press 1957), p. 328Google Scholar.

24 ICRC, The ICRC in Action: Information notes (31 03 1975), No. 219b, p. 1Google Scholar.

25 The following article has been provisionally adopted by the 1975 session of the Geneva Conference on Humanitarian Law with regard to the material field of application of draft Protocol II pertaining to noninternational armed conflict:

The present Protocol, which develops and supplements article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by article 1 of Protocol I and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement the present Protocol.

The present Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. Conference document CDDH/I/274, 26 March 1975.

26 It is well to recall that in precise legal terms a crime against humanity only exists in conjunction with committing a war crime or waging aggressive war. There must be a finding that there is an armed conflict and that one of these violations has occurred before there can be a finding that a crime against humanity has occurred.

27 See Bishop, Joseph W. Jr, Justice Under Fire: A Study of Military Law (New York: Charterhouse 1974), chap. 7, esp. pp. 291ftGoogle Scholar.

28 See Bailey, Sydney D., Prohibitions and restraints in war (New York and London: Oxford University Press 1972), 41–53Google Scholar; Trooboff, Peter D. and Goldberg, Arthur J., Law and Responsibility in Warfare: The Vietnam Experience (Chapel Hill: University of North Carolina Press 1975)Google Scholar.

29 See ICRC, Draft Additional Protocols to the Geneva Conventions of 12 August 1949 (Geneva: June 1973); Protocol I, Articles 70–79.

30 Law, morality, and war have been linked to the subject of nuclear weapons by several writers. See in particular Falk, Richard A., Law, Morality and War in the Contemporary World (New York and London: Praeger 1963)Google Scholar; and Osgood and Tucker (fn. 2), Part II.

31 On the important subject of supervising the law of armed conflict, see Forsythe, , “Who Guards the Guardians: Third Parties and the Law of Armed Conflict,” American Journal of International Law, Vol. 70 (01 1976)CrossRefGoogle Scholar.