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b o o k r e v i e w s
Professor Best is not a lawyer by training but a historian, and his book
War & Law since 1945 is a description of the development of the
thinking, practice and effectiveness of laws about conflict. Indeed, he
makes it clear that lawyers should read the book for pleasure, but not as
the preparation for academic examinations on International Law. The
spread of international agreement on humanitarian law has been mainly
a twentieth century phenomenon. Reflecting this (and his title) only one
chapter is allocated to events from the dawn of time to 1945.
He dates the codification of the laws and customs of war from the
regulation of maritime commerce in wartime, which was dealt with in
1856. Land warfare codes followed in quick succession, and by the
turn of the century a set of such regulations was annexed to the
Hague Conventions. In parallel, work was developed on codification
of practices for the sick and wounded. International agreement on
simple humanitarian arrangements was agreed in the Geneva
Convention of 1864.
The third pillar of such laws was to be the question of the involvement
of non-combatants in war. Here Best describes why the development
of a legal framework seems to have been rather less tidy. While the
St. Petersburg declaration of 1868 indicated that the only legitimate
object in war was the weakening of the military forces of the enemy,
there was no explicit ban on attacking civilians.
The test of these new humanitarian laws was to come with World War
1. While many of the rules were broken, or bent beyond recognition, it
was a war in which the belligerents all presumed the validity of the laws
of war, and could thus accuse each other of contraventions. Yet,
largely, the humanitarian rules for care of the injured and prisoner of war
procedures worked well. The Red Cross gained greater influence
through its work, and was able to take on an agreed role in later
conventions. The horrors of that war however meant that the thrust of
the interwar period was the prevention of war rather than the patching
up of the laws of war. Best makes the point that if the League of
Nations is to be criticised for not having done more to reaffirm and
reinforce the law of war, one must remember that it had the higher aim
of making such laws redundant.
Despite such hopes, wars continued and the next major test of the
laws of war came with World War 2. In this, Best judges, perhaps overgenerously,
that the core principles of restraint and discrimination for the
sake of humanity were observed not badly when men had the will and
space to observe them. He deduces two lessons from this period:
firstly, the willingness to risk extra losses for humanitarian principle is
rare; and second, the prospect of war trials has little effect on the
actions of belligerents.
The second part of the book turns to the reconstruction of the laws of
war between 1945 and 1950. The birth of the United Nations
Organisation was the key event. Best makes the point that the laws of
war would have continued to operate without the UN, but the UN
Charter was the hub of the post-war reconstruction of the international
legal apparatus. He paints a fascinating picture of the development of
humanitarian law. The difficulties of negotiation over a large range of
Conventions are well documented in the book. A good example is the
push to define the distinction between combatant and non-combatant
in a war: a problem that continues in modern warfare.
More successful was the development in 1949 of a comprehensive
prisoner of war Convention. The 143 articles and five annexes
provided a complete code of conduct for the handling of POWs. This
has been a useful and important agreement. While there have been
transgressions against the code in recent times, world opinion is
quick to condemn them as we saw in the Gulf War.
In the final part, covering the period from 1950, his examples are
comprehensive. He sketches the increasing concern over the use of
Napalm as a legitimate weapon from Korea, through Algeria, Angola,
Mozambique and of course in Vietnam. This is one illustration of the
difficulties of agreeing humanitarian law. Similarly, limitations on the
b o o k r e v i e w s
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