It is easy to decry the actions of governments as in breach of international law, but does it really matter? Does international law have any standing in the international community or is it just a series of pious statements, unenforceable and largely ignored?
International law has its roots in historical notions of a binding universal morality. Modern international law is a comparatively recent creation and while it still purports to represent the collective good sense of humanity, it has developed comprehensive and specific legal principles in the last two centuries. In the course of the Nuremberg Judgment in the trial of major war criminals, the International Military Tribunal observed: "the law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world".
That is the theory, but what about the practice? Around 350 years ago Grotius, popularly known as the father of international law, remarked: "... in our day, as in former times, there is no lack of men who view this branch of the law with contempt as having no reality outside of an empty name. On the lips of men quite generally is the saying..., that in the case of a King or imperial city nothing is unjust which is expedient...".
One can take a modern example of the apparent failure of international law. All of the nuclear powers are parties to the Hague Convention of 1907, which expresses one of the most basic principles of law, namely that "the right of belligerents to adopt means of injuring the enemy is not unlimited". The parties to the Convention undertook not to employ "poison or poisoned weapons", nor "arms projectiles or material calculated to cause unnecessary suffering".
The Tribunal concluded that in the aftermath of a nuclear holocaust if a tribunal similar to Nuremberg was set up, it would indeed find the use of nuclear weapons was contrary to international law. Therefore all Soviet and U.S. (and other nuclear weapons states) government officials who either launched or waged a nuclear war would be guilty of war crimes, crimes against peace and genocide at a minimum. This is cold comfort since the real purpose of international law is not to punish violations after the event but rather to prevent, forestall, or deter war, and nuclear war in particular.
Can international law fulfil its purpose in the nuclear era or as Professor Boyle feared, will government officials in nuclear powers, academics, and military establishments come to view nuclear policy as a matter of the highest National Security interest, with a kind of existence as a metaphysical entity above and beyond the domain of international law?
One witness (referred to as X) stated "Law is not morality, law is something which actually has to be observed. There must be evidence that when laws are broken, people are punished for them, or at least that there is some coherent and impressive form of disapproval of persons who break the laws".
The Tribunal noted that a number of U.N. Resolutions have been passed and yet nothing ,.has changed in military strategic directions since World War II, except breaches of international law in an increasingly pervasive way, with a build up of unlawful weaponry on a massive scale, and the planning and deployment systems to go with them.
Professor Boyle felt that those countries which have nuclear weapons are pursuing a completely lawless and thoroughly reprehensible policy; he alleged they are the law breakers, and it is up to the remainder of the international community to try and induce compliance with the rules of law.
South Africa is an example of a country with policies which the world community finds reprehensible. Other countries are banding together and imposing sanctions; still others are trying to cajole and coerce that country to change and fall in line with the wishes of the international community.
X voiced a low opinion of international law, since in his opinion it rests merely upon consent. In his view, if five states say there are no rules to govern these weapons and if some enter into signing the Geneva Protocols saying that these rules do not apply to the use of nuclear weapons then that is an end to the story.
Professor Griffith disputed this, saying "If the possession of these weapons is illegal the fact that states may come to some sort of accord, does not affect the question of the lawfulness or unlawfulness of possession".
Professor Boyle also disagreed with X on this point with special reference to UN Resolutions and protocols. Professor Boyle's argument ran thus: the military alliances are acting in a manner violative of international law; if they are opposing UN resolutions or refusing to ratify conventions, it is clear that they are opposing such in pursuit of an illegal policy in the first place; "I do not believe their negative votes are entitled to any weight at all". It is not reasonable that five states which are already in serious breach of international law, could make legal what 155 other states deem unacceptable, simply by declaring to be law what the nuclear powers find suits themselves to overcome their own unlawfulness.
An example of such a stance is the UN Resolution 1653 of 1961, which declared that any use of nuclear weapons would be a violation of the UN Charter, contrary to international law and the laws of humanity, and a crime against mankind and civilization. The US, UK, and France all voted against the measure while the USSR supported it.
X also stated that the laws of war were obsolete and have been for a generation. He laid the blame for this at the feet of the UK and US for their conduct in World War II with particular reference to the policy of strategic bombing.
Evidence was presented that strategic bombing made a mockery of the Nuremberg Tribunal, since law must be applied objectively. The ambivalence was shown in that it was not declared a crime to bomb the cities, but was declared a crime not to prevent the lynching of captured pilots and civilians, and it was also a crime to leave the prisoners of your enemy where his colleagues are going to be bombing.
X admitted there had been a change in the years since Korea, of international legal consciousness but still does not feel that there has been a change in the consciousness of Western Societies concerning the inviolability of civilians in warfare. The only way he sees forward would be for governments to ratify the Geneva Protocol which would in effect tie their hands.
In the last six years there has been more debate on the subject than hitherto, as lawyers have been adopting a higher profile and a more positivist attitude towards international law. This stance must now continue its effect upon government and military strategists alike.