Copyright (c) 1994 President and Fellows of Harvard College Harvard International Law Journal

Winter, 1994

35 Harv. Int'l L.J. 49

LENGTH: 18901 words ARTICLE: The Legitimation of Violence: A Critical History of the Laws of War NAME: Chris af Jochnick* and Roger Normand** BIO: * J.D., Harvard Law School; Director of Projects, Center for Economic & Social Rights.

** J.D., Harvard Law School; M.T.S., Harvard Divinity School; Director of Policy, Center for Economic & Social Rights. We wish to thank the John D. and Catherine T. MacArthur Foundation for its generous support. We also thank Professor Richard Falk, Professor Henry Steiner, Sarah Leah Whitson, and Mike Eisner for their helpful comments on earlier drafts of this article. Finally, we are grateful to the participants in the Harvard Study Team and International Study Team human rights missions to Iraq and to the many people in the United States, Iraq, and Jordan who made these missions possible.

SUMMARY: ... This Article challenges the notion that the laws of war serve to restrain or "humanize" war. ... Laws regulating the means and methods of warfare drafted at the Hague Conferences remain the bedrock of modern laws of war, and are generally considered by international law scholars to be the crowning achievement of the effort to humanize war through law. ... To clarify that the article contemplated the bombing of civilian areas, Germany's military delegate publicly announced his government's understanding that article 25 is "not to be taken to prohibit the destruction of any building whatever and by no means when military operations rendered it necessary." ... Prior to actual conflict and in the initial stages of the war, national leaders gave assurances that civilians would not be the object of attack, stating publicly that international law forbade indiscriminate aerial bombardment of civilian populations. ... The Tribunal's broad interpretation of military necessity was not limited to aerial bombardment, but rather covered the full range of wartime conduct: ... Ironically, the power of Nuremberg's image as a humanitarian milestone may further entrench these "customary" belligerent practices that claim the vast majority of civilian casualties in modern war. ...

HIGHLIGHT: Who controls the past controls the future; who controls the present controls the past.

George Orwell, 1984

TEXT: [*49] I. INTRODUCTION

A. The Gulf War and the Promise of Law

The forty-three-day war waged against Iraq by the United States-led Coalition (the "Coalition") enjoys a reputation as one of the cleanest and most legal wars in history. n1 Despite evidence of disastrous long-term consequences for Iraqi civilians, the image persists of a new kind of war, a modern, high-tech "operation" that decimated the opposing military with minimal damage to the surrounding population. Coalition leaders bolstered this image by repeatedly invoking international law in order to condemn Iraqi conduct and to praise the restraint exhibited by the Coalition forces both in the actual combat and in the events preceding it. n2

[*50] There is a critical unspoken assumption that gives rhetorical power to the idea of a legal war -- specifically, that a legal war is more humane than an illegal war. A legal war connotes a war that is proper and just, rather than a war that merely complies with a set of technical guidelines. That the Gulf War is considered to be the most legalistic war ever fought adds to its image as a just and relatively humane war.

This Article challenges the notion that the laws of war serve to restrain or "humanize" war. Examination of the historical development of these laws reveals that despite noble rhetoric to the contrary, the laws of war have been formulated deliberately to privilege military necessity at the cost of humanitarian values. As a result, the laws of war have facilitated rather than restrained wartime violence. Through law, violence has been legitimated.

Viewed from this perspective, the Gulf War does not represent the dawn of a hopeful new age of international law, n3 but rather the continuation and even the intensification of a historical trend to legalize inhumane military methods and their consequences. By obscuring bombing behind the protective veil of justice, the laws of war may have increased the destruction in Iraq. Despite the Coalition's reputation for targeting only military sites, most independent studies have put the civilian death toll at over 100,000. n4

[*51] This analysis of the Gulf War underscores the difficulty of using law to humanize war, but does not condemn the effort itself. The requirements of global security and prosperity in an interdependent world may yet lead countries to develop laws that impose effective humanitarian limits on the conduct of war. In working to achieve such

limitations, however, it is important to understand how past legal efforts to regulate war have often come to sanction the behavior they were ostensibly designed to prevent.

B. Outline of the Argument

The purpose of this argument is to provide a more realistic understanding of the relationship between law and war as a first step towards more effective wartime protection for civilians. The argument is presented in two articles. This, the first Article, analyzes the historical development of the laws of war and demonstrates that they have been formulated, and in fact have served, to legitimate ever more destructive methods of combat. The second Article, which will appear in the next issue of the Harvard International Law Journal, applies this analysis to the Gulf War and concludes with suggestions for realizing the humanitarian sentiments underlying the laws of war.

This Article is divided into eight parts. Part II questions the traditional understanding of the laws of war as a restraint on violence and warns that mystification of the law's impact adds a facade of legitimacy to existing wartime practices, undermining more realistic efforts to limit war. Parts III-V sketch the development of the laws of war from ancient times through the Hague Conferences of 1899 and 1907. These sections argue that the nineteenth century, hailed as an era of humanitarian progress when war was subjected to the discipline of legal codification, in fact firmly established the priority of military over humanitarian concerns. Parts VI and VII support this contention by reviewing the actual role played by the laws of war during the World Wars and the Nuremberg Trials. This review demonstrates how the rhetorical use of law by all belligerents in the World Wars to justify terror attacks against civilians, and the refusal to condemn such attacks at Nuremberg, underscore the law's capacity to legitimate rather than restrict wartime violence.

[*52] II. INTRODUCTION TO THE LAWS OF WAR

A. Background

Before examining traditional views of the relationship between law and war, it is necessary to become familiar with the basic terminology and principles behind these laws. International jurisprudence makes a distinction between laws governing the resort to force (jus ad bellum) and laws regulating wartime conduct (jus in bello). n5 Jus in bello is further divided into the Geneva laws (the "humanitarian laws"), which protect specific classes of war victims (such as prisoners of war), and the Hague laws (the "laws of war"), which regulate the overall means and methods of combat. n6

The differences between the Geneva laws and the Hague laws reflect the interests of those nations that dominated the international conferences where these laws were drafted. n7 While the Geneva laws are characterized by strict, non-derogable prohibitions, n8 the Hague laws [*53] are vaguely worded and permissive, enabling powerful states to use the latest military technology with little regard for humanitarian consequences. n9 This Article focuses on the Hague laws; the legal regime that is least effective and at the same

time most critical to the protection of civilians (hereinafter, the term "laws of war" will refer only to the Hague laws).

The common rationale for the laws of war is the desire to humanize war by balancing military necessity with concerns for humanity. The fundamental principles behind these laws, distinction and proportionality, revolve around the need to maintain this balance. n10 The principle of distinction requires belligerents to distinguish between military and civilian targets, and to attack only the former. The principle of proportionality requires belligerents to refrain from causing damage disproportionate to the military advantage to be gained.

It is important to understand that the development of these legal principles did not introduce restraint or humanity into war. War has long been limited largely by factors independent of the law. For complex military, political, and economic reasons, belligerents tend to use the minimal force necessary to achieve their political objectives. n11 Force beyond that point -- gratuitous violence -- wastes resources, provokes [*54] retaliation, invites moral condemnation, and impedes post-war relations with the enemy nation. n12 These concepts are embodied in the "time honored military concept of 'economy of force'," of which, according to former Chairman of the Joint Chiefs of Staff, General George S. Brown, "the law of 'proportionality' is simply a legal restatement." n13

The crucial question then becomes whether the laws of war actually limit military conduct beyond the inherent restraints dictated by narrow military self-interest. And if not, what purpose do they serve?

B. The Role of Law in War

To most, law and war occupy mutually exclusive terrain. As Cicero wrote, "inter arma silent leges" (in time of war the law is silent). n14 Law implies order and restraint; war epitomizes the absence of both. It is precisely when the legal system fails that conflict turns to violence. [*55] Law may act to deter war, but it has no practical role once the fighting has begun. n15

Yet, attempts to regulate war are as old as war itself. From ancient societies until today, nations have purported to limit the conduct of war with legal codes. Proponents of such efforts assume that bringing war within the bounds of rational rules may somehow "humanize" war and contain its brutalities. The history of war, however, reveals that the development of a more elaborate legal regime has proceeded apace with the increasing savagery and destructiveness of modern war. n16 Nonetheless, succeeding generations continue to call for more laws, without examining, or even understanding, the nature of the legal structure upon which they place their humanitarian hopes.

This apparent paradox may be explained, albeit in simplified form, by the different interests and motives of those who call for laws of war and those who formulate and implement such laws. To the general public, the laws of war should address our humanitarian aspirations and impose some form of restraint, even if minor, on the forms

that war may legitimately take. Perhaps the foremost international jurist of his time, Hersch Lauterpacht makes this clear:

We shall utterly fail to understand the true character of the law of war unless we are to realize that its purpose is almost entirely humanitarian in the literal sense of the word, namely to prevent or mitigate suffering and, in some cases, to rescue life from the savagery of battle and passion. This, and not the regulation and direction of hostilities, is its essential purpose. n17

Given this motivation, it is not surprising that public agitation for legal regulation tends to be renewed on the heels of war. n18 As Michael [*56] Walzer comments, "war is so awful that it makes us cynical about the possibility of restraint, and then it is so much worse that it makes us indignant at the absence of restraint." n19 Thus, the Hague Peace Conferences followed a half century of intensifying conflict among the emerging European nation-states in the nineteenth century; the League of Nations and Kellogg-Briand Pact (which unsuccessfully sought to ban war outright) followed World War I; the Geneva Conventions followed World War II; and the 1977 Protocols to these Conventions followed the Vietnam War.

Yet the noble sentiments that prompted this expansive body of laws have only selectively penetrated the substance of the laws themselves. Notwithstanding public pressure to limit the horrors of war, the diplomats who negotiated the laws and the soldiers who implemented them structured a permissive legal regime. Despite the humanitarian rhetoric, military concerns have dictated the substantive content of the laws of war.

National governments, conceiving their sovereign interests narrowly, have proven unwilling to accept any restrictions, legal or otherwise, on their ability to deploy the level of military power they deem necessary to uphold national security. n20 The structured impotence of the laws of war illustrates a variation of the "prisoners' dilemma": what makes sense for the world, collectively, appears different when viewed through the prism of national self-interest.

C. The Legitimating Role of Law

While the laws of war impose no substantive restraints on pre-existing customary military practices, they nevertheless have an impact on war. The mere belief that law places humane limits on war, even if factually mistaken, has profound consequences for the way people view war, and therefore the way that war is conducted. The credibility of laws of war lends unwarranted legitimacy to customary military practices. Acts sanctioned by law enjoy a humanitarian cover that helps shield them from criticism. As one commentator warned, "precisely because aggression in its crudest form is now so universally condemned, many of the assaults that are made will be dressed up in some more respectable garb . . . . Because public opinion is itself so confused, [*57] aggression may secure its fruits without paying the deserved penalty in international

goodwill." n21 The "respectable garb" with which belligerents have dressed their assaults is precisely the laws themselves. By legitimating conduct, the laws serve to promote it.

Law legitimates conduct on two levels. Because people generally view compliance with "the law" as an independent good, acts are validated by simply being legal. In particular, sovereign conduct that complies with the law will appear more legitimate than that which violates it. n22 Nations acknowledge the power of this form of legitimation by seeking to explain their actions by reference to law. n23 According to a former Legal Advisor to the U.S. State Department, "legal justification is part of the over-all defence [sic] of a public decision." n24

Proponents of Critical Legal Studies ("CLS") n25 identify a deeper sense of legitimation. n26 They argue that law functions ideologically to both reinforce "shared values" and to impress upon people a sense of obligation to the existing order. n27 More than simply supporting or deterring a particular act, law influences the public perception of an act by imbuing it with the psychic trappings of lawfulness. In this way, law helps condition people to accept the prevailing distribution of social and political power, which in turn reinscribes its hierarchies into the law. These effects are by their nature hidden; the contingent, malleable power relations that produce law are made to seem natural, neutral, and inevitable. n28 In essence, this legitimation theory involves a two [*58] stage process in which law is internalized as belief and belief leads to compliance.

Whereas national law legitimates the domestic social order, the international legal regime reflects and reifies the status, rights, and obligations of states. n29 Here again, law operates to shape discourse and lends credence and inevitability to existing arrangements. n30 In the context of war, the basic fact that nations purport to respect the rule of law helps protect the entire structure of war-making from more fundamental challenges. While the laws themselves speak to sovereign nations, their psycho-social effects are visited upon the public at large.

A critical understanding of international law compels a reevaluation of the role of law in deterring wartime atrocities. By endorsing military necessity without substantive limitations, thelaws of war ask only that belligerents act in accord with military self-interest. n31 Belligerents who meet this hollow requirement receive in return a powerful rhetorical tool to protect their controversial conduct from humanitarian challenges. n32

The notion that humanitarian rhetoric can subvert its stated purpose raises several important questions: How does the legal hierarchy of [*59] sovereign over individual interests affect the perception of war? How does legal language influence popular attitudes towards wartime violence? How does the law's sanction affect public support for military conduct? Do these effects translate into more or less public pressure on belligerents to adhere to humanitarian standards?

These questions have no clear, empirically based answers. n33 However, the importance of public support for war, coupled with the growing stature of international legal rhetoric, validates the search for a critical understanding of the legitimating effects of law.

Moreover, the capacity of the laws of war to subvert their own humane rhetoric carries an implicit warning for future attempts to control wars: the promotion of supposedly humane laws may serve the purposes of unrestrained violence rather than of humanity.

III. THE LAWS OF WAR IN HISTORY

A. The Continuity of Past and Present Laws of War

1. The Modern View

Modern legal scholars generally adhere to the view that past societies conducted wars without law, leaving the strong free to devastate the weak. n34 According to this view, as civilization progressed through the Enlightenment, the laws of war balanced the traditional demands of military necessity with developing considerations of humanity. This process culminated in the codification of the modern laws of war in the nineteenth century, which supposedly achieved a decisive humanitarian advance from earlier custom and practice, bringing the horrors of war under the rule of law. n35

This standard view denies and distorts the historical record. In fact, belligerents throughout history have created and recognized war codes. These laws, like the modern laws of war, failed to impose humanitarian [*60] limits on military action. By ignoring these consistent historical trends, the modern view falsely promotes the present laws of war as a humanitarian break from the "savage" past.

2. Ancient Legal Codes

A cursory review of history contradicts the view that ancient wars were lawless. n36 Ancient societies had legal codes with humanitarian provisions similar to those found in the modern laws of war, including requirements that belligerents distinguish between combatants and civilians, spare prisoners of war, and avoid inflicting undue suffering. n37 However, these legal standards failed to prevent the frequent commission of wartime atrocities. n38

B. Laws of War Before the Modern Era

The modern laws of war claim precedent in the chivalric practices of Medieval Christian Europe. A more critical view of this era, however, finds the same coexistence of law and atrocities. n39 The development of the "just war" doctrine in the Middle Ages dovetailed neatly with the standard medieval practice of slaughtering the enemy. n40 Only when its [*61] political and economic interests were at risk did the Church attempt to regulate conduct during war. For example, in 1139, the Church intervened to protect its patron class, wealthy knights and nobles, denouncing the crossbow as deadly and "odious to God" because it was used by peasants to cut down knights and nobles at long range. n41

Although the modern view deplores an overt license to massacre, it nonetheless claims romanticized chivalric ideals, such as justice and mercy, as its humanitarian ancestors. n42

This view obscures the fact that chivalric rules actually served to protect the lives and property of privileged knights and nobles, entitling them to plunder and kill peasant soldiers, non-Christian enemies, and civilians of all religions and ethnicities. n43

The laws of war remained tied to religious particularism until the Enlightenment, when a prominent group of jurists and theologians, the "publicists," helped shift the source of legal authority from God to reason. n44 In De Jure Belli ac Pacis Libri Tres, a three-volume work on the laws of war, Hugo Grotius concluded that the practice of states reflected natural law through the reasoned judgment of men. n45 Most important from the modern perspective, he insisted that war should be governed by a strict set of laws. n46 Grotius maintained that violence beyond that necessary to secure the military goal was not justified, and that suffering should be minimized within the parameters of military [*62] requirements. n47 A century later, Jean-Jacques Rousseau reaffirmed these principles, stressing that "the nature of things" required belligerents to distinguish combatants from non-combatants and limit attacks to armed enemies. n48

The modern view hails the publicists for laying the foundation of the laws of war, a triumph of reason over barbarity. n49 But the triumph was in word only. The enlightened theories of the publicists did not influence the practice of emerging European nation-states busily engaged in the imperial conquest, massacre, and enslavement of millions in the Americas, Africa, and Asia. The modern view, holding that the work of the publicists divides a lawless age of warfare from the modern age of legal restraint, serves to mystify and legitimate the current legal regime. A more accurate portrayal would place the laws of war within a historical continuum of unsuccessful attempts to limit wartime conduct.

IV. THE TRIUMPH OF CODIFICATION IN THE NINETEENTH CENTURY

A. The Advent of Modern War

Until the nineteenth century, the residual remains of chivalry, the non-binding theoretical treatises of the publicists, and the slow accretions of customary restraints derived from state practice comprised the legal framework governing conduct in war. However, the changing nature of warfare, spurred by technological advancement and heightened rivalries between newly consolidated nation-states, revealed the impotence of these restraints and compelled their revision. n50 The French Revolutionary and Napoleonic wars heralded the dawn of an [*63] "epoch of 'unbridled ferocity'." n51 The birth of the nation-at-arms, in which entire populations and industrial bases were mobilized in support of the war effort, blurred the combatant/non-combatant distinction and jeopardized any civilian claims to immunity. n52

The unfolding of these developments during the heyday of legal positivism led to international conferences aimed at codifying the laws and customs of warfare. Before examining the fruits of these conferences, it is helpful to understand the contemporaneous theoretical debate over codifying the laws of war.

B. Kreigsraison or the Rule of Law?

Much opposition to codification came from supporters of a doctrine called kreigsraison, associated primarily with German statesmen and officers. Advocates of kreigsraison argued that the demands of military necessity should always override the obligations of international law. n53 While some even lauded war as a good in itself, n54 most argued that a ruthless war was quicker and therefore more humane. n55 The moderate proponents of kreigsraison reasoned that such tactics were consistent with law 99 times out of 100, and in the rate case when survival or victory required violating law, it was unreasonable and unrealistic to prohibit such violations. n56 In the words commonly attributed to German [*64] Chancellor von Bismarck, "What leader would allow his country to be destroyed because of international law?"

Kreigsraison provoked a storm of condemnation from contemporary international law scholars who deplored its apparent scorn of their cherished belief in the humanizing force of positive law. n57 Accordingly, these scholars were outraged when, three years after the first Hague Conference, Germany produced an army manual steeped in the spirit of kreigsraison. One passage that sparked particular concern read as follows:

A war conducted with energy cannot be directed merely against the combatant forces of the Enemy State and the positions they occupy, but it will and must in like manner seek to destroy the total intellectual and material resources of the latter. Humanitarian claims, such as the protection of men and their goals, can only be taken into consideration in so far as the nature and object of war permit. n58

Ironically, the German manual accurately described the very practices that would come to dominate modern wars conducted within the laws of war. Thus, while the codification of the laws of war represented a formal rejection of kreigsraison, it did not signify a substantive advance towards the humanitarian goal of restraining war conduct. The distinction paramount in the minds of legal scholars between kreigsraison and the laws of war disappears in the actual practice of war. The elasticity of the term "military necessity" under the laws of war has enabled belligerents to legally justify virtually any conduct otherwise available to proponents of kreigsraison. n59

[*65] Some would argue that even if kreigsraison reaches the same result as law in almost all concrete situations, it creates an atmosphere permissive of atrocities. n60 The merit of this argument depends on whether the mere existence of humanitarian-sounding laws, void of substantive restraints, influences belligerents to conduct more humane wars. If so, then the laws of war constitute a humanitarian advance over kreigsraison. But if, instead, the existence of law enables belligerents to suppress opposition to wartime conduct by cloaking such conduct in legal legitimacy, or if the law has sidetracked humanitarian advocates from pursuing their agenda by other, more effective tactics, then the "triumph" of law over kreigsraison has been costly.

C. The Lieber Code

The United States Civil War gave birth to the first modern codification of the laws of war to be officially adopted by a warring belligerent. n61 The Lieber Code, which Lieber modestly described as "short but pregnant and weighty like some stumpy Dutch woman when in the family way with coming twins," n62 provided a blueprint for similar international efforts in the latter half of the century, and has been widely praised as a humanitarian milestone for implementing the rule of law in an actual war. n63

Despite the widespread praise for its humaneness, Lieber's document subjects all humanitarian provisions to derogation based on an openended definition of military necessity, and asserts, in the spirit of kreigsraison, that "the more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief." n64 The practices that Lieber explicitly condoned under his definition of military necessity included, for example, starvation of civilians, bombardment of civilians without [*66] warning, and destruction of all armed enemies and enemy property. n65 The fact that these practices happened to coincide with the conduct of the Union Army n66 was not lost on James Seddon, the Confederate Secretary of War, who dismissed the Lieber Code as a biased work that condoned "a barbarous system of warfare under the pretext of a military necessity." n67

D. The International Conferences

1. The Saint Petersburg Declaration

In 1868, Czar Alexander II of Russia convoked the first international conference on the laws of war, for the stated purpose of "alleviating as much as possible the calamities of war." n68 The exalted reputation of the resulting agreement, the so-called Saint Petersburg Declaration, is undercut by its modest achievements. For all its humanitarian rhetoric against using "arms which uselessly aggravate the sufferings of disabled men," n69 the Declaration reaffirmed that belligerents were justified in inflicting "necessary" suffering, in effect acknowledging the primacy of military necessity. n70 The only binding prohibition forbade the use of explosive bullets, n71 an unreliable and already obsolete weapon at the [*67] time. These failures are particularly significant because the Saint Petersburg Declaration set the tone for future international agreements on the laws of war. n72

2. The Brussels Declaration

Fifteen of the world's major powers next sent international law experts to Brussels in 1874 to draft more comprehensive regulations for warfare. n73 Preliminary negotiations eliminated most of the contentious issues from discussion. n74 Nevertheless, the delegates managed not only to reaffirm the vague principles of Saint Petersburg, n75 but also to draft concrete rules regulating the conduct of land warfare. The most significant rule was the prohibition on bombardment of unfortified or "open" towns. n76 This rule merely reflected military utility rather than notions of humanity. Troops lacked the technology to bombard undefended towns except at very close range, in which case it made more military sense simply to march in. n77 Yet even these rules, which remained safely within the confines of military necessity, were considered too "humanitarian" by the great powers, who all

refused to ratify the agreement. n78 The Brussels Conference gained significance only later, as the basis for the land war code adopted at the Hague Conference. n79

[*68] E. A Lesson of Codification

These early attempts to create laws of war reveal the enduring power of military necessity. When ideals of humanity clashed with military necessity, as inevitably occurred in all areas critical to protecting civilians, they encountered an immovable force. As a result, any weapon or tactic that a major power considered necessary, or even potentially useful, was beyond the reach of legal regulation. Attempts to regulate these areas inevitably collapsed into deliberate vagueness to disguise the tragedy of codification -- legalized subordination of humanitarian principles.

V. THE HAGUE CONFERENCES

A closer analysis of the conferences credited with drafting the pre-eminent laws of war helps to explain the apparent inability of nations to restrain military necessity. Despite a public outcry for humane limits on warfare at the turn of the century, the sovereign nations that drafted the Hague laws were overwhelmingly concerned with protecting their military interests. Predictably, the resulting laws banned only those means and methods of combat that had no military utility while permitting new and destructive technologies, like aerial warfare, to develop unhindered. In World War I, civilians paid the price for the Hague Conferences' humanitarian failures.

A. The Primacy of Military Necessity at the Hague Conferences

The Hague Conferences of 1899 and 1907, culminating the process of codification begun with the Lieber Code, governed conduct in the wars of the twentieth century. Laws regulating the means and methods of warfare drafted at the Hague Conferences remain the bedrock of modern laws of war, and are generally considered by international law scholars to be the crowning achievement of the effort to humanize war through law. n80 This reputation conceals the essential fact that Hague law has failed to result in any concrete humanitarian gains over pre-existing practice. n81 Moreover, the reputation serves to legitimate as humane a legal regime that permits any conduct consistent with military interests.

As with prior codification of the laws of war, the Hague laws upheld rather than restricted military necessity. This flowed from a general [*69] reluctance of states to accept limits on sovereign power as well as from competing interests between individual nations on many issues. As a result, despite high humanitarian expectations on the part of the general public, delegates from the assembled nations refused to restrict the use or development of a single weapon or tactic of military value. n82 In the end, they agreed to respect limits on conduct only if qualified by the requirements of military necessity, and generally preferred drafting vague, unenforceable humanitarian principles.

B. Public Hope and Official Doubt at the First Hague Conference

The first Hague Conference had its genesis in a letter circulated to diplomats in Saint Petersburg on August 24, 1898, by Czar Nicholas II. The Czar proposed an international conference to examine "the most effectual means of insuring to all peoples the benefits of a real and durable peace, and, above all, of putting an end to the progressive development of all armaments . . . . This conference should be . . . a happy presage to the century which is about to open." n83

Coming on the heels of a century of intensifying national and imperialist conflict, the unexpected Russian proposal provoked a storm of public and diplomatic reaction. Spurred by a growing peace movement that hailed the Czar as a humanitarian visionary, n84 lively debate ensued in newspapers and parliaments throughout the world. n85 Diplomats from Russia's European rivals, however, privately suspected that the Czar's sudden embrace of pacifism was a ruse to enlist public [*70] opinion to support measures that would help Russia overcome its military weakness. n86 Historians have since demonstrated that these suspicions were well-founded. Financial considerations and not humanity led the Russian government to seek international restrictions on weapons development and military expenditures. n87 After interviewing delegates, military officers, and other journalists, a reporter for the New York Times concluded that "there is not a single prominent diplomatist in Europe who believes that the original purpose of the conference has the slightest chance of realization." n88 Nevertheless, these nations preferred to support the proposal rather than to risk the public perception that they opposed peace. n89 By January, 28 nations had agreed to attend a conference at The Hague. n90

[*71] C. Sovereign Resistance to Military Limitations

In his opening address to the Conference, Baron de Staal of Russia acknowledged the gulf between public and diplomatic expectations, but urged the delegates to fulfill a historic opportunity: "The Peace Conference cannot fail in the mission incumbent upon it; its deliberations must lead to a tangible result which the whole human race awaits with confidence." n91 His audience was not receptive. n92 Andrew White, the head of the United States delegation, privately noted that "since the world began, never has so large a body come together in a spirit of more hopeless skepticism as to any good result." n93

Before the Conference even began, the governments of the most powerful nations had already instructed their respective delegates to reject limitations on arms. n94 Similarly, the issue of capping military expenditures was dealt a fatal blow early in the proceedings when Germany's military delegate declared that the "patriotic" German people would not tolerate a reduction in military spending. n95 With no hope of agreeing on meaningful limitations, the various nations spent much of the Conference fighting over each other's proposals, with large powers set against small, land against naval, rich against poor. n96 To put the best public face on this debacle, the delegates finally drafted the meaningless platitude that their governments would, in the unspecified [*72] future, "examine the possibility of an agreement as to the limitation of armed forces." n97

D. Inflated Accomplishments

The 1899 Hague Conference produced an abundance of empty rhetoric and laws that appeared to advance humanitarian ideals but lacked substance. Three areas deserve closer scrutiny: restrictions on bombardment by land, prohibitions against certain weapons, and general humanitarian declarations.

1. Bombardment by Land

The greatest threat facing civilians at the time was the increasing range of artillery, which enabled war planners to target civilians well beyond the battle lines. In drafting article 25 on land bombardment, n98 delegates insisted on language that allowed belligerents to employ long-range artillery against distant towns unless they were "undefended." n99 To clarify that the article contemplated the bombing of civilian areas, Germany's military delegate publicly announced his government's understanding that article 25 is "not to be taken to prohibit the destruction of any building whatever and by no means when military operations rendered it necessary." n100 Thus, the term "undefended" was broadened to mean without military value.

2. Prohibitions of Weapons

After heated debate, the delegates to the Hague Conference managed to prohibit the use of only three weapons, all of dubious military value: asphyxiating gases, dum dum bullets, and balloon-launched munitions. n101 Prohibitions on these weapons received widespread support among delegates eager to demonstrate humanitarian motives but reluctant to compromise military interests. Nations had never used gas [*73] shells in combat for fear that their harmful effects could not be directed exclusively at the enemy. n102 In the final vote, only the United States and Britain opposed the ban; n103 the U.S. military delegate openly ridiculed banning a weapon for so-called humanitarian reasons before its value could be fully tested on the field. n104

Britain and the United States also cast the lone dissenting votes to the proposed ban on dum dum bullets, n105 which expand inside the body to cause permanent, disfiguring wounds. n106 Britain, which manufactured the bullets in India and used them in colonial wars in Africa, argued that dum dum bullets were necessary to disable tenacious "savages." n107

The five-year moratorium on balloon-launched munitions, which several delegations supported with great humanitarian flourishes, appears to contradict the general rule that considerations of humanity were subordinated to military interests. Nevertheless, the delegates understood the ban to operate only against non-dirigible balloons, which had proven useless for military purposes. n108 The developing technology of motorized aircraft, set to revolutionize warfare and terrorize civilians, was exempt from the limitation. n109 Even with this exemption, delegates from the stronger powers rejected Russia's proposal [*74] for a permanent ban on the grounds that the free balloon might eventually acquire military utility. n110

3. Humanitarian Declarations

The delegates masked their failure to draft concrete limitations on important means and methods of warfare by formulating vague, indeterminate provisions that sounded humane but did not impose any binding commitments on signatories. In this manner, the Conference retained its humanitarian cover without imposing on sovereign military interests. The military advantage -- that these declarations limit nothing and therefore allow everything -- is precisely the humanitarian problem. Paradoxically, these are the very provisions that today are hailed as the humanitarian foundation of the laws of war, the final and formal rejection of kreigsraison.

The Hague's most famous humanitarian provisions illustrate this point. Article 22, declaring that "the right of belligerents to adopt means of injuring the enemy is not unlimited," and article 23, prohibiting the employment of "arms, projectiles, or material of a nature to cause superfluous injury," do not provide guidelines for interpreting the meaning of "unlimited means" and "superfluous injury." n111 In the absence of either explicit boundaries or an implicitly shared understanding, belligerents would inevitably interpret these terms in the heat of battle to suit their immediate military needs. Similarly, the Preamble to the 1899 Hague Convention, drafted by noted Russian jurist Frederic de Martens, placed the fate of war victims not specifically covered by Hague laws under such protections as the dictates of humanity, and the custom of nations. n112 Although many modern jurists consider the de Martens clause to be the most important statement of the entire law of war regime, one searches in vain for a single instance of the use of this clause by a tribunal, statesman, belligerent, or jurist to confer tangible protection on real persons.

The modern tendency to exalt the results of the Hague laws is especially puzzling in light of contemporaneous reaction to it. While [*75] the results of the Conferences apparently pleased delegates and international jurists, n113 the general public reacted with great disappointment. n114 The London Times, the most influential paper in Britain, made this comment upon the close of the first conference:

The Conference was a sham and has brought forth a progeny of shams, because it was founded on a sham. We do not believe that any progress whatever in the cause of peace, or in the mitigation of the evils of war, can be accomplished by a repetition of the strange and humiliating performance which has just ended. n115

E. The Hague Conference of 1907

By the Second Hague Conference in 1907, international expectations were scaled down considerably. n116 The delegates did not enter the Conference under any pressure to reach humanitarian results. In fact, Czar Nicholas II, eager to rebuild his army after it was destroyed in the 1905 Russo-Japanese War, did not even mention arms limitations when convoking the conference. n117

Several new developments concerning the protection of civilians came out of the Second Hague Conference. None, however, provided significant humanitarian advances. In fact,

the conference undercut humanitarian ideals at certain points. The delegates drafted a new naval [*76] code that explicitly provided for bombardment of undefended places. n118 Restrictions on the submarine, a divisive issue at the previous conference, were shelved due to the successful use of submarines in recent conflicts. n119 Finally, efforts by small nations and naval powers to bring air warfare under the existing ban on balloon-launched munitions were soundly rejected. n120 Those countries that opposed a flat-out ban instead agreed to place aerial bombardment under the article 25 guidelines for land and naval bombardment. n121 In this way, aerial bombardment was "legalized" without being restrained. The flexible directives of article 25 opened the door to direct aerial attacks on civilian centers, a tactic that would be adopted by all belligerents in the subsequent World Wars. n122 Such attacks now enjoyed the sanction of international law.

F. Consequences of the Hague Conferences

After the two great peace conferences at The Hague, military necessity remained unchallenged as the dominant value of the laws of war and civilians were more vulnerable than ever to the scourge of combat. n123 The technological march towards more destructive weaponry [*77] was not slowed, but rather allowed to flourish unchecked. States agreed to restrict only those obsolete methods or means of warfare whose limitation did not put one or more states at a disadvantage. n124 This refusal to provide concrete limitations on military action did not make the world safe from the ravages of battle; rather, it enabled political and military leaders to use a rhetorical device to justify their wartime conduct.

VI. LAW IN THE WORLD WARS

This section examines the use of law by belligerents in the World Wars and concludes that the laws of war did not protect civilians but rather legitimated attacks against them. Law served as a second front, where belligerents sought to mobilize public opinion behind the justice of their cause. Starting in World War I, belligerents consistently referred to the laws of war to justify their own conduct and condemn that of the enemy. The deliberate vagueness of the Hague laws provided ample room to maneuver on the battlefield, allowing belligerents to adopt any tactic deemed expedient, including the wholesale bombardment of civilian populations. The laws of war thus helped to legitimate the very atrocities that they purportedly intended to deter, leading to the "lawful" slaughter of civilians.

A. Law and the Transformation of Warfare

The failure of law to deter atrocities in World War I stemmed not only from the deliberate pursuit of sovereign self-interest at the Hague Conferences, but also, more fundamentally, from the dominant historical trends of the time. n125 The cornerstone of the humanitarian project, the need to distinguish non-combatants from combatants, ran counter to sweeping social changes toward industrialization and militarization. n126 The integration of civil industry into the military "served to rob the great cities of a belligerent country of the virtual immunity which once they could claim. They have become an

integrated part of [*78] the whole war-machine. They are part of the war. They do not stand aside from it." n127

Belligerents in past wars had spared civilians not for humanitarian reasons, but simply because they lacked the technological capacity to do otherwise. n128 The development of the airplane and long-range naval and land artillery made it both possible and useful to target enemy production and enemy populations, eroding the distinction between non-combatant and combatant. n129 The result was the advent of

total war . . . fought by entire nations wherein all are considered "combatants" without any limitation on the means of injuring the enemy in order that he may be so utterly defeated that his entire system of life may be subordinated to the will and the system of the victor. n130

The airplane was the primary offensive weapon in the arsenal of total war. Air power enabled military commanders to attack the industrial base that supported the war effort. These attacks extended to the workers themselves, who arguably contributed no less than uniformed soldiers. n131 Next on the target list was a nation's "will" to fight. To the extent that civilian support bolstered the vigor of an enemy's war effort, a belligerent could justify direct civilian attacks, so-called "morale" bombings, on the grounds of military necessity. n132 Under such an [*79] expansive view of military necessity, no one was immune from legally justifiable attacks.

Recognizing air power's potential to eviscerate the humanitarian ideals of the laws of war, commentators struggled to contain and control the ominous march towards the bombardment of civilians. n133 Some distinguished scholars, relying on the power of wishful thinking, interpreted the Hague laws to prohibit any use of the airplane as a weapon. n134 A more realistic position sought to limit aerial warfare by narrowly interpreting article 25, which prohibited the bombardment of undefended areas "by any means." n135 However, a broader interpretation of the term "undefended" would eventually render article 25's restrictions meaningless.

B. Law and Military Reality in World War I

1. Law

Prior to actual conflict and in the initial stages of the war, national leaders gave assurances that civilians would not be the object of attack, stating publicly that international law forbade indiscriminate aerial [*80] bombardment of civilian populations. n136 During World War I, each belligerent proclaimed its respect for the laws while condemning the "illegal" acts of its adversary. n137 Yet each adopted similar policies of deliberate "morale bombing" -- attacking populated areas to sow terror in the population and discourage its support for the war. n138 Thus, while the laws provided leaders with a tool to legitimate their actions and condemn the enemy, n139 they offered no corresponding benefits to civilians.

It would appear that states were willing to accept only such limitations as favoured their own perceived interests, and that when technical development put weapons-systems into their hand which promised success only if used without restriction, then all restraints were cast aside. n140

Casting aside restraint did not entail open violation of the laws of war; it simply meant interpreting the law to justify unrestrained conduct. Belligerents "legalized" their resort to aerial bombardment of civilian centers by interpreting the protected "undefended areas" of article 25 to mean areas without military objectives. n141 Thus, if a belligerent attacked a perceived military objective in a town, for instance, an arms factory, that town would no longer be considered "undefended," regardless of whether it was actually defended in the ordinary sense of the word. n142 One military historian noted a consensus [*81] among commanders that "military objectives could be bombed wherever found, regardless of their location, and, it seems, regardless of the injury to non-combatants and private property." n143

Once the law permitted bombing behind the enemy front lines, it inevitably came to sanction direct attacks against civilians. n144 Because of the crudeness of existing weaponry, bombers could not discriminate between military and civilian objectives. n145 Even more ominously, as belligerents perceived an affirmative military value in terrorizing civilians, civilians became military objectives in their own right.

2. Military Reality

Indiscriminate bombardment of cities commenced in late 1914 with the German raid on Antwerp and the Zeppelin attacks against Britain. n146 The Chief of the German Naval Staff justified such attacks as necessary to achieve military ends: "I hold the view that we should leave no means untried to crush England, and that successful air raids on London, in view of the already existing nervousness of the people, would prove a valuable means to an end." n147 The Imperial Chancellor concurred, opining that these "most ruthless measures" were also "the most humane." n148

[*82] Leaders of the Entente countries also condoned a policy of terror bombings. n149 Official orders instructed French and American pilots to engage in bombardment for "moral effect," n150 and the Chief of the British Air Staff praised the efficacy of "the wholesale bombing of densely populated industrial centres." n151 While such bombing was limited by technological restraints, the law itself did not provide an apparent barrier to these attacks. n152 Toward the end of the war, the King of Spain made an initiative to stop the bombing of undefended towns, to which Germany seemed disposed. The British Cabinet rejected the proposal, commenting that it was "undesirable in the interest of future peace that the civilian population of Germany should be the one population among the belligerents to enjoy immunity." n153

C. The Humanitarian Failure of Law in World War I

The ease with which morale bombing was legally justified by all sides in World War I underscored the impotence of the law's humanitarian principles. Prior to the war, it was generally accepted that there was a "fundamental" distinction between combatant and non-combatant. The advent of aerial bombardment obliterated that distinction, revealing the ultimate subservience of humanitarianism to military necessity. Belligerent rhetoric condemned attacks aimed solely at sowing death and terror but condoned attacks aimed at the military objective of breaking civilian morale. Civilians derived little solace from the malleable distinction between the intent to terrorize and the [*83] use of terror in weakening morale. Moreover, the distinction does not provide a useful standard of legality for prosecuting violators. n154

The practical failure of law to deter the barbarities of World War I would not have surprised most delegates to the Hague Conferences, who purposely subordinated humanitarian concerns. Yet, those who believed that the Hague laws represented humane progress were forced to reassess their opinions.

D. Attempts to Reform the Laws of War Before World War II

The tremendous human cost of World War I sparked a public outcry for new methods of controlling the consequences of war. Many feared that the next war, with the support of modern aerial weaponry, would unleash even greater devastation than the last. "[A] particular notion of future war dominated the public consciousness; namely that conflict would begin suddenly . . . with an all-out air attack on defenceless cities . . . . Such fears were widely shared by politicians, air experts and writers of all kinds." n155 Spurred by the public clamor, diplomats and jurists again assembled to devise a means of regulating war. n156 These efforts were generally characterized by the utopian quest to prohibit effective weapons or to ban war altogether. n157

1. The Washington Conference

The Washington Conference of 1922 and its "follow-up" Conference at The Hague symbolized this form of legal utopianism. A commission of renowned jurists, officially supported by their respective governments, assembled to draft laws regulating aerial bombardment, n158 and particularly to reestablish the line between the civilian and the combatant. n159 In retrospect, the conference was doomed from the start. [*84] Unlike the experienced diplomats who drafted the previous laws of war, these jurists lacked adequate appreciation of the political, economic, and military realities underlying wartime practices. n160 Animated by excessive faith in the power of positive law, they drafted rules that placed unprecedented limits on sovereign power and prohibited any effective use of aircraft in war. n161 Not surprisingly, official support for the Conference dissipated in a wave of ridicule; one commentator described the Conference as a "highwater mark in legal fantasy." n162 In the end, not one nation adopted the rules. n163

2. Other Attempts

This debacle stalled further efforts to regulate aerial warfare until public opinion was re-mobilized in the 1930s by the Italian bombardment in Abyssinia, the devastating German bombardment of Durango and Guernica, and Japanese air attacks in China. n164 The resultant World Disarmament Conference, convened in Geneva from 1932 to [*85] 1934, sought to draft basic civilian protections that could be observed even in the heat of battle. n165 Despite the "obsession with 'civilians'" shown by conference participants, n166 the effort fell victim to competing national interests as states fought to preserve military advantages and limit the power of adversaries. n167

Thus concluded forty fruitless years of trying to place humanitarian limits on the forward march of military necessity. Each effort failed to assess dispassionately the motives and forces driving this relentless progress, and therefore failed to develop realistic standards capable of offering civilians more than mere humanitarian rhetoric.

E. Law and Morale Bombing in World War II

1. Law

Belligerents entered World War II piously uttering the same humanitarian and legal rhetoric employed in World War I. All sides promised to respect the laws of war and to avoid inflicting civilian casualties. In fact, these two objectives bore little relation to one another; respect for the laws of war offered few substantive protections to civilians. Each side discovered that any useful military tactic could be justified under the law, and thus compliance in no way compromised their interests. Public pledges to respect the laws served to legitimate conduct without restraining it.

This trend was exemplified by aerial bombardment. To calm public fears and to reassure opposing states, political leaders, once again, unanimously condemned tactics that would involve targeting civilian populations. With tensions rising in 1938, British Prime Minister Neville Chamberlain made a last-ditch effort to invest the laws of war with concrete humanitarian substance:

I think we may say that there are, at any rate, three rules of international law . . . applicable to warfare from the air . . . . In the first place, it is against international law to bomb civilians as such and to make deliberate attacks upon civilian populations. That is undoubtedly a violation of international law. In the second place, targets which are aimed at from the air must be legitimate military objectives and must be capable of identification. In the [*86] third place, reasonable care must be taken in attacking these military objectives so that by carelessness a civilian population in the neighbourhood is not bombed. n168 Chamberlain underscored this message by declaring bombardment aimed at "demoralising the civilian population" to be "absolutely contrary to international law." n169

United States President Franklin D. Roosevelt called the bombardment of civilians "inhuman barbarism which has profoundly shocked the conscience of humanity," n170 and on the eve of World War II, Roosevelt appealed to each belligerent "publicly to affirm its determination that its armed forces shall in no event, and under no circumstances, undertake the bombardment from the air of civilian populations or of unfortified cities." n171 Britain, France, and Germany all responded affirmatively. n172 However, none seriously contemplated restricting aerial bombardment, and all (including the United States) eventually bombed civilian areas with the explicit intention of targeting "morale."

2. Morale Bombing

Strategic rather than legal or humanitarian concerns limited Allied aerial bombardment during the early months of war. n173 Aware of their [*87] vastly inferior bombing capacity, Britain and France hoped to avoid air warfare with Germany by initially eschewing it. n174

Germany's first direct aerial attack against civilians, in the Battle of Britain, was executed under orders advising pilots that "attacks on cities for the purpose of terrorizing the civilian population are absolutely forbidden." n175 The directive resolved this apparent contradiction by distinguishing terror attacks from attacks on the enemy population's "will to resist." n176 This hollow distinction provided legal cover to air massacres of civilians by all sides during the war. n177

The British Chief of Air Staff was quick to condone area bombing, arguing that all bombs that fall on Germans do "useful work" even if they miss their intended target. n178 Like Germany, the British attempted to draw a legal distinction between useful and gratuitous [*88] terror, allowing unlimited discretion to bomb civilians for the useful purpose of breaking their morale. n179

Allied attacks on civilian centers increased dramatically in 1943 after the Combined Chiefs of Staff of the Allied Command prioritized "the undermining of the morale of the German people to a point where their capacity for armed resistance is fatally weakened." n180 This order was, in effect, a declaration of war on the German and Japanese populations. n181 The firebombings of Berlin, Dresden, and Tokyo alone killed almost half a million civilians, n182 causing even Churchill to reconsider what he forthrightly termed a policy "of bombing German cities simply for the sake of increasing the terror, though under other pretexts." n183 The logic of terror bombing led inexorably to the use of atomic bombs in Hiroshima and Nagasaki. n184

These bombings starkly portrayed the irrelevance of the laws of war to the protection of civilians. If civilian morale was a justifiable target, then in practical terms, no bombing could be legally condemned. A U.S. Government post-war bombing survey revealed that 23.7% of the allied bombing of Europe was done at night over large cities in order "to spread destruction over a large area rather than to knock out any specific factory or installation, and [the air attacks] were intended primarily to destroy morale, particularly that of the industrial worker." n185 Similarly, the survey points out that the "preponderant

purpose" of incendiary bombings was "to secure the heaviest possible [*89] moral and shock effect by widespread attack on the Japanese civilian population." n186 Perhaps the most appalling commentary on these killings is that they proved to be of dubious military value:

Military experts today admit that the results of Allied bombing raids in Germany fell very much short of expectations, . . . that the brutality of that form of warfare, far from shattering the enemy's morale, may have even encouraged a spirit of resistance which prolonged the war. n187

F. The Humanitarian Failure of Law in World War II

In both World Wars the laws of war played analogous roles. In each conflict the law served as a powerful rhetorical device to reassure anxious publics that the conflict would be confined within just limitations. The First and Second World Wars both saw the law subverted to the dictates of battle, reduced to a propaganda battlefield where belligerents traded attacks and counter-attacks. And in the end, the law ultimately failed to protect civilians from horrifying new weapons and tactics. The scope of permissible violence expanded under a flexible definition of military objective and military necessity that eventually, and predictably, justified relentless terror bombing campaigns.

VII. THE LESSONS OF NUREMBERG

Conventional wisdom views the war crimes trials held at the end of World War II as a rare triumph for the laws of war. The trials placed political and moral issues into a legal framework; it was not crude revenge, but lawful justice that condemned Axis leaders for their actions. While some have criticized the trials for legal flaws, there is reason to question the undertaking at a deeper level. In order to avoid condemning Allied as well as Axis conduct, the war crimes tribunal left the most devastating forms of warfare unpunished. In doing so, these trials lent further legitimation to a belligerent's right to target the enemy civilian population.

[*90] A. The Promise of Nuremberg

The Nuremberg Tribunal is widely lauded for resurrecting the rule of law from the carnage of World War II. n188 The successful prosecution of Axis war criminals stands as a moment in which military leaders were held accountable under law for wartime conduct. n189 These prosecutions signalled a decisive blow to the doctrine of kreigsraison, and an affirmation that law must operate even in the chaos of total war. n190 As underscored by the Chief U.S. Prosecutor:

The principles of the [Nuremberg] charter, no less than its wide acceptance, establish its significance as a step in the evolution of a law-governed society of nations. The charter is something of a landmark . . . . n191

Certainly, many aspects of the Nuremberg Tribunal merit such praise. For the first time, military and political leaders were denied the protection of traditional "state action" defenses, and were held individually responsible for war crimes committed while serving the state. n192 The Tribunal admitted no excuse for violations of humanitarian law. Military necessity would not justify legal breaches. In a powerful rejoinder to Bismarck's famous question: "What leader would allow his country to be destroyed for international law?" the Tribunal held that "the rules of international law must be followed even if it results in the loss of a battle or even a war." n193 The immediate adoption of the judgments and legal principles set forth by the Tribunal by [*91] unanimous resolution in the U.N. General Assembly highlighted their widespread acceptance and significance. n194

B. The Refusal to Prosecute Violations of the Laws of War

Unfortunately, these achievements offer an incomplete and distorted picture. While the Tribunal has been properly hailed for prosecuting violations of the laws of humanity, it failed to address potential violations of the laws of war. Destructive methods of warfare by all sides, involving the massacre of civilians, were not condemned or even legally challenged. n195 By leaving morale bombing and other attacks on civilians unchallenged, the Tribunal conferred legal legitimacy on such practices. n196 Under the extraordinary circumstance in which the international community sits in judgment of the conduct of an enormously destructive war, one may infer that conduct unpunished is conduct condoned. n197

1. Air Attacks Against Civilians

Despite forming a commission to investigate violations of the laws of war and listing "indiscriminate bombing" as a recognized war crime, no defendant was ever prosecuted on these grounds. n198 In fact, the Tribunal's only conviction on this charge was of a Japanese judge for the crime of having himself convicted two U.S. pilots for fire-bombing Japanese cities. n199 Colonel Telford Taylor, the Chief United States [*92] Prosecutor at Nuremberg, provided the following justification for the Allies' reluctance to bring charges based on aerial attacks:

The ruins of German and Japanese cities were the results not of reprisal but of deliberate policy, and bore witness that aerial bombardment of cities and factories has become a recognized part of modern warfare as carried on by all nations. n200

The Tribunal concurred in the assessment that morale bombing was a customary practice of nations, and therefore legal. In fact, it explicitly condoned attacks against civilians, even atomic attacks, under a broad interpretation of military necessity that recognized a legitimate purpose in the bombardment of cities to induce surrender:

There . . . is no parallelism between an act of legitimate warfare, namely the bombing of a city, with a concomitant loss of civilian life, and the premeditated killing of all

members of certain categories of the civilian population in occupied territory . . . . As grave a military action as is an air bombardment, whether with the usual bombs or by atomic bomb, the . . . only purpose of the bombing is to effect the surrender of the bombed nation. n201 This interpretation of legitimate military ends stands in stark contrast to the general consensus among jurists and diplomats prior to the war, who considered direct targeting of civilians illegal per se. n202 The Tribunal's interpretation effectively legalized unrestrained military policy: Air power entered the post-war period free of all limitations save those imposed by its own technology. Maximum reciprocal employment of the most efficient means of devastation was in no way forbidden to belligerents . . . . n203

[*93] 2. Deference to Military Necessity

The Tribunal's broad interpretation of military necessity was not limited to aerial bombardment, but rather covered the full range of wartime conduct:

Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money . . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war . . . . n204 The Tribunal placed only the most outrageous conduct beyond the bounds of military necessity, such as "the killing of innocent inhabitants for the purpose of revenge or the satisfaction of a lust to kill." n205 Likewise, it prohibited only "the wanton devastation of a district or the willful infliction of suffering upon its inhabitants for the sake of suffering alone." n206 By this definition, if the infliction of suffering was militarily "purposeful," it was legal.

By emphasizing the subjective perspective of the accused, the Tribunal lent further flexibility to these rules. n207 In In re List, a German general was charged with "devastation not required by the necessities of law" for ordering, during a retreat through Finland, the removal of the entire civilian population and the destruction of all food and shelter, leaving "some sixty-one thousand men, women and children homeless, starving and destitute." n208 Although the Tribunal found that [*94] these orders served no military purpose, it nevertheless ruled that since the accused believed they might slow the enemy's advance, the commands were not criminal. n209

Consistent with its broad interpretation of military necessity, the Tribunal acquitted a German commander for ordering troops to kill starving civilians trying to flee a besieged city. n210 In the German High Command Trial, a defendant commander justified his order

as required by military necessity; preventing civilians from leaving the city would reduce the food-stocks and thus hasten the city's surrender. The Tribunal ruled that

the cutting off of every source of sustenance from without is deemed legitimate. It is said that if the commander of a besieged place expelled the noncombatants, in order to lessen the number of those who consume his stock provisions, it is lawful, though an extreme measure, to drive them back so as to hasten the surrender. n211 The analogies between starvation to hasten surrender, and morale bombing, are obvious: both posit civilian suffering as a legitimate military objective.

C. Nuremberg's Unfortunate Legacy

Notwithstanding its significant humanitarian accomplishments in the area of crimes against the peace and crimes against humanity, the Nuremberg Tribunal actually helped legitimate unrestrained conduct in war by refusing to convict, or even prosecute, based on violations of the laws of war. n212 Regardless of whether this reluctance was based on Allied unwillingness to face legal scrutiny of its own conduct, the Tribunal set the clear precedent that international law tolerated massacres of civilians, including those by nuclear weapons. In many ways, [*95] the Nuremberg Tribunal actually bolstered the rights of belligerents to engage in "normal" wartime atrocities, those that can be tenuously (in the eyes of the perpetrator) linked to a military objective. Ironically, the power of Nuremberg's image as a humanitarian milestone may further entrench these "customary" belligerent practices that claim the vast majority of civilian casualties in modern war. Recognition of this failing should not tarnish the positive steps taken at Nuremberg, but merely underscore a hidden impact -- the legitimation of extreme war-time conduct.

VIII. CONCLUSION

This Article has attempted to dispel widely held myths about the humanitarian accomplishments of the present laws of war. Demystification constitutes an essential first step in a program of constructive legal reform. The second Article, in the next issue of the Harvard International Law Journal, will analyze the Gulf War as the latest and clearest example of the manipulation of law to legitimate belligerent acts, and will propose strategies for placing humane and effective legal limits on war.

The present relationship between law and war is neither necessary nor natural; it has been constructed piece by piece in response to a series of particular, historically contingent events. The fact that nations have adopted a legal framework that allows them to conduct wars relatively uninhibited by humanitarian constraints does not preclude the development of alternative legal frameworks that effectuate different values and yield different results.

The evolution of internationalism presents critical opportunities and obstacles for those seeking to reform belligerent conduct. The fate of legal reform will be determined by a series of conflicts over the distribution of rights and power in the international system. The outcome of these power struggles will be inscribed in the legal and political framework within which future wars will be fought, to the benefit or detriment of those caught in the violence.

Legal Topics: For related research and practice materials, see the following legal topics: International LawSovereign States & IndividualsGeneral OverviewMilitary & Veterans LawWarfareInternational LawDispute ResolutionLaws of War FOOTNOTES:

n1 Colonel Raymond Ruppert, staff judge advocate for U.S. Central Command and General H. Norman Schwarzkopf's personal lawyer during the conflict, declared the Gulf War "the most legalistic war we've ever fought." Steven Keeva, Lawyers in the War Room, A.B.A. J., December 1991, at 52.

n2 See MIDDLE EAST WATCH, NEEDLESS DEATHS IN THE GULF WAR: CIVILIAN CASUALTIES DURING THE AIR CAMPAIGN AND VIOLATIONS OF THE LAWS OF WAR, 75-78 (1991). See also DEPARTMENT OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR: FINAL REPORT TO CONGRESS Appendix O (April 1992) [hereinafter D.O.D. REPORT].

n3 Within the political mainstream of the United States, both conservatives and liberals held high hopes that the post-Cold War international cooperation displayed during the Gulf War heralded what former Secretary of State James A. Baker III termed "one of those rare transforming moments in history . . . an era which is full of promise . . . ." James A. Baker III, Address to the Los Angeles World Affairs Council (October 29, 1990), available in LEXIS, Nexis Library, Fednew. A representative article in the A.B.A. JOURNAL, exhibiting this optimistic spirit, proclaimed, "There is now a greater worldwide interest in the rule of law than at any time in recent memory." Keeva, supra note 1, at 59. Nicholas Rostow, currently Special Assistant to the President for National Security Affairs and Legal Adviser to the National Security Council, commented, "If the Cold War has indeed ended, the international legal disputes that were such an important part of that war may also have come to a close . . . . The profound changes of recent years should permit the world community to test the ideas for world public order set forth in the U.N. Charter and the effectiveness of the United Nations itself." Nicholas Rostow, The International Use of Force After the Cold War, 32 HARV. INT'L L.J. 411, 411 (1991).

n4 Beth Osborne Daponte, a demographer with the U.S. Census Bureau, estimated that after the war's conclusion, 111,000 Iraqi civilians died from war-related health effects by

the end of 1991. Many of these deaths are attributable to "Allied bombing of Iraq's electrical generating capacity, which was needed to fuel Iraq's sewerage and water treatment system." Study Shows Iraqi Post-War Deaths Greater Than Initially Thought, PR Newswire, Aug. 17, 1993, available in LEXIS, Nexis Library, PR News File. The Census Bureau initially dismissed Ms. Daponte for releasing earlier estimates of Iraqi casualties but later reinstated her. Agency Reinstates Tabulator of Iraqi War Deaths, N.Y. TIMES, Apr. 13, 1992, at A14. Ms. Daponte's estimates are supported by a range of other studies. See, e.g., Harvard Study Team, Public Health in Iraq After the Gulf War (May 1991) (predicting "170,000 children under five . . . will die in the coming year from delayed effects of the Gulf Crisis.") (relevant pages on file with the Harvard International Law Journal); International Study Team, Health and Welfare in Iraq After the Gulf Crisis: An In-Depth Assessment (Oct. 1991) (predicting that thousands of Iraqi children would die of malnutrition and disease) (relevant pages on file with the Harvard International Law Journal); Joint WHO/UNICEF Team Report, A Visit to Iraq, Feb. 16-21, 1991, U.N. SCOR, U.N. Doc. S/22328 (1991); Alberto Ascherio et al., Special Article: Effect of the Gulf War on Infant and Child Mortality in Iraq, 327 NEW ENG. J. MED. 931 (1992); I. Lee & A. Haines, Health Costs of the Gulf War, 303 BRIT. MED. J. 303 (Aug. 3, 1991).

n5 See, e.g., SYDNEY D. BAILEY, PROHIBITIONS AND RESTRAINTS IN WAR (1972); GEOFFREY BEST, HUMANITY IN WARFARE: THE MODERN HISTORY OF THE INTERNATIONAL LAW OF ARMED CONFLICTS (1983). Examples of jus ad bellum include the Pact of Paris, or Kellogg-Briand Pact, and the U.N. Charter. The former condemns the use of war as an instrument of national policy. The General Treaty for the Renunciation of War, Aug. 27, 1928, art. 1, 46 Stat. 2343, 94 L.N.T.S. 57 [hereinafter Kellog-Briand Pact]. The latter bars the "threat or use of force against . . . any state." U.N. CHARTER art. 2, para. 4.

n6 The Hague laws were drafted at the turn of the 20th century. See Convention With Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 1 Bevans 247 [hereinafter 1899 Hague Convention]; Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter 1907 Hague Convention]. The Geneva laws derive from several later treaties including: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. In 1977, the Geneva Conventions were supplemented by two Additional Protocols: Protocol I Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391; Protocol II Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, U.N. Doc. A/32/144. Protocol I modified provisions of the Hague laws to restrict certain customary practices. See W. Hays Parks,

Air War and the Law of War, 32 A.F. L. Rev. 1, 94-225. These modifications, however, were rejected by the United States (which has refused to ratify the Protocol) and their efficacy has yet to be tested on the battlefield. See id. at 222-24; Leslie H. Gelb, War Law Pact Faces Objection of Joint Chiefs, N.Y. TIMES, July 22, 1985, at A1. The Hague Conventions of 1899 and 1907 thus remain the driving force behind the current laws of war. The attempt to move beyond the Hague laws, represented by the recent Protocols, will be more fully discussed in the subsequent Article.

n7 See, e.g., C.P. Phillips, Air Warfare and Law, 21 GEO. WASH. L. REV. 395 (1953); Parks, supra note 6.

n8 The effectiveness of Geneva laws can be attributed in large part to the fact that they serve the interests of the more powerful nations. For instance, Geneva laws prevent weaker states from compensating for military disadvantage by threatening to mistreat enemy soldiers and civilians. Iraq's threats to mistreat Coalition civilians and P.O.W.s, ultimately abandoned after strong international condemnation, represented just such an attempt to overcome its relative military weakness. See John Kifner, Confrontation in the Gulf, N.Y. TIMES, Aug. 19, 1990, § 1, at 1. The desire of powerful nations to deter such practices, in addition to the public outrage against the Holocaust and related atrocities, led to the prohibitions protecting war victims embodied in the Geneva Conventions. See, e.g., Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, supra note 6, art. 3, 6 U.S.T. at 3116-18, 75 U.N.T.S. at 32-34; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, supra note 6, art. 3, 6 U.S.T. at 3220-22, 75 U.N.T.S. at 86-88; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, supra note 6, art. 3, 13, 6 U.S.T. at 3318-20, 3328, 75 U.N.T.S. at 136-38, 146; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, supra note 6, art. 3, 6 U.S.T. at 3518-20, 75 U.N.T.S. at 288-90.

n9 See William V. O'Brien, The Meaning of "Military Necessity" in International Law, 1 WORLD POLITY 109 (1957) [hereinafter O'Brien, Military Necessity]; Myres S. McDougal & Florentino P. Feliciano, International Coercion and World Public Order: The General Principles of the Law of War, 67 YALE L.J. 771, 810 (1958).

n10 See generally JEAN PICTET, DEVELOPMENT AND PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW (Nijhoff Publishers ed. & trans., 1985) (1982).

n11 This reflects the traditional understanding, articulated by Karl von Clausewitz, that war is the extension of politics by other means. As such, the rules of politics apply in war, albeit in modified form:

The smaller the sacrifice we demand from our adversary, the slighter we may expect his efforts to be to refuse it to us. The slighter, however, his effort, the smaller need our own

be. Furthermore, the less important our political object, the less will be the value we attach to it and the readier we shall be to abandon it. KARL VON CLAUSEWITZ, ON WAR 9 (O.J. Matthijs Jolles trans., 1943). See also PICTET, supra note 10, at 31.

n12 One military commentator has noted, "It is very dubious whether most of the atrocities committed and threatened in recent wars have not been military blunders. Atrocities embitter, and threats frighten the enemy population into prolonged resistance. Decent treatment of prisoners encourages surrender." ERNST H. FEILCHENFELD, PRISONERS OF WAR 97 (1948). This point is borne out by a cursory examination of World War II. German treatment of civilians in occupied territory during World War II spurred active resistance, making these areas harder to control. See McDougal & Feliciano, supra note 9, at 812. The history of terror bombing and oppressive occupation policies reveals that these policies are frequently counterproductive. See e.g., ALEXANDER DALLIN, GERMAN RULE IN RUSSIA, 1941-1945 70-75 (1957); William V. O'Brien, Legitimate Military Necessity in Nuclear War, 2 WORLD POLITY 35, 56-58 (1960). But see THE UNITED STATES STRATEGIC BOMBING SURVEY, SUMMARY REPORT (EUROPEAN WAR), at 11-12 in THE UNITED STATES STRATEGIC BOMBING SURVEYS (Air University Press ed., 1987) (1945) [hereinafter BOMBING SURVEY] (stating that "studies show that the morale of the German people deteriorated under aerial attack . . . . However, dissatisfied as they were with the war, the German people lacked either the will or the means to make their dissatisfaction evident.")

n13 DEPARTMENT OF THE AIR FORCE, JUDGE ADVOCATE GENERAL ACTIVITIES: INTERNATIONAL LAW -- THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS 1-12 (1976) See also McDougal & Feliciano, supra note 9, at 811-13; W.T. Mallison, Jr., The Laws of War and the Juridical Control of Weapons of Mass Destruction in General and Limited Wars, 36 GEO. WASH. L. REV. 308, 314-315 (1967); JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 30 (1975).

Robert E. Osgood offers the following definition of the principle of economy of force:

It prescribes that in the use of armed force as an instrument of national policy no greater force should be employed than is necessary to achieve the objectives toward which it is directed; or stated in another way, the dimensions of military force should be proportionate to the value of the objectives at stake. ROBERT E. OSGOOD, LIMITED WAR: THE CHALLENGE TO AMERICAN STRATEGY 18 (1957). This principle coincides almost exactly with the principle of "military necessity," which has provided the foundation for the laws of war. "Military necessity consists in all measures immediately indispensible and proportionate to a legitimate military end, provided they are not prohibited by the laws of war or by the

natural law, when taken on the decision of a responsible commander, subject to judicial review." O'Brien, Military Necessity, supra note 9, at 138.

n14 Quoted in QUINCY WRIGHT, A STUDY OF WAR 863 (1965) (citation omitted).

n15 General MacArthur was fond of saying, "You can't control war; you can only abolish it." Phillips, supra note 7, at 421. Most scholars dispute this simplistic division between law and war. War need not be viewed as distinct from peace, but rather, "it is more realistic in the light of the complex and multifarious nature of international conflict to regard war as the upper extremity of a whole scale of international conflict of ascending intensity and scope." OSGOOD, supra note 13, at 20. See also Philip C. Jessup, Should International Law Recognize an Intermediate Status Between Peace and War?, 48 AM. J. INT'L L. 98 (1954). Accordingly, it makes little sense to speak of an abstract point beyond which there is no law. See generally DAVID KENNEDY, INTERNATIONAL LEGAL STRUCTURES 417-482 (1986).

n16 See, e.g., WRIGHT, supra note 14 at 370-71 (noting the increasing severity of war); BEST, supra note 5, at 57-59.

n17 Hersch Lauterpacht, The Problem of the Revision of the Law of War, 1952 BRIT. Y.B. INT'L L. 360, 363-64. Similarly, Josef L. Kunz emphasizes that "the whole law of war, including the norms regulating its actual conduct, is humanitarian in character; it is in the truest sense a part of the law for the protection of human rights." Josef L. Kunz, The Laws of War, 50 AM. J. INT'L L. 313, 322 (1956).

n18 See WRIGHT, supra note 14 at 1079 (cataloguing the peace movements following conflicts from ancient times through World War I).

n19 MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS 46 (2d ed. 1992).

n20 Summarizing this frequently-stated concern, one military historian has noted that "in the simplest terms, nations do not legislate self-denying restrictions on those weapons and techniques that they judge their survival to depend upon." Townsend Hoopes, Comments, in LAW AND RESPONSIBILITY IN WARFARE: THE VIETNAM EXPERIENCE 142 (Peter D. Trooboff ed., 1975) [hereinafter LAW AND RESPONSIBILITY].

n21 EVAN LUARD, PEACE AND OPINION 53 (1962). See generally id. at 51-68.

n22 See generally ROGER FISHER, INTERNATIONAL CONFLICT (1969); LOUIS HENKIN, HOW NATIONS BEHAVE (1968); Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT'L L. 705 (1988).

n23 See HENKIN, supra note 22, at 31-41.

n24 Abram J. Chayes, The Cuban Missile Crisis, in INTERNATIONAL LAW: A CONTEMPORARY PERSPECTIVE 340, 344 (Richard A. Falk et al. eds., 1985). Chayes's reflections on this crisis emphasize the importance of legitimating U.S. conduct under international law.

n25 For background reading on critical legal thought, see generally THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (David Kairys ed., 1982); CRITICAL LEGAL STUDIES (Allan C. Hutchinson ed., 1989).

n26 See generally Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 93-95 (1984).

n27 This perspective maintains that law legitimates certain acts not only on a concrete and conscious level, but more importantly on a deeper, psychic level where people's beliefs are formed and molded, "the legal system is an important public arena through which the State attempts -- through manipulation of symbols, images and ideas -- to legitimize a social order that most people find alienating and inhumane." Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U. REV. L. & SOC. CHANGE 369, 370 (1982-83).

n28 CLS uses the term "reification" to describe the process whereby belief in law limits one's ability to analyze or even perceive the social injustice of existing institutional arrangements by investing these institutions with a quality of inevitability: "law, like religion and television images, is one of these clusters of belief . . . that convince people that all the many hierarchical relations in which they live and work are natural and necessary." Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, supra note 25, at 287. See also Peter Gabel & Jay M. Feinman, Contract Law as Ideology, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, supra note 25, at 172-78.

n29 Customary practices, which generally include the power of sovereign nations to control the day-to-day lives of their inhabitants, are harder to challenge when ratified by law. "A quick look at the 'rules' of international law shows why governments love international law . . . . International law . . . confers authority to control entry and exit, to establish police control, to determine economic structure, to tax, to regulate, and to reinforce in many other ways the power and legitimacy of government." Phillip R. Trimble, Review Essay: International Law, World Order, and Critical Legal Studies, 42 STAN. L. REV. 811, 833 (1990).

n30 International law legitimates the hierarchies through which power is presently distributed:

In a society in which power is the overriding consideration it is the primary function of law to assist in maintaining the supremacy of force and the hierarchies established on the basis of power and to lend to such a system the respectability and sanctity of law. In a variety of ways, international law serves these purposes.

GEORG SCHWARZENBERGER, POWER POLITICS: A STUDY OF INTERNATIONAL SOCIETY 203 (1951).

n31 Hays Parks, Special Assistant for Law and War Matters in the Office of the Judge Advocate General of the U.S. Army, underscores this point:

Lots of people came out of Vietnam thinking things were illegal when they were not . . . . It has been very important to get commanders to realize that there's a crucial distinction between political decisions and the law. I've given hundreds of lectures on how we could have done in Vietnam everything we did in Iraq, but that policy, not law, restricted us. Keeva, supra note 1, at 56-57. The Department of Defense concluded at the end of the Gulf War: "Adherence to the law of war impeded neither Coalition planning nor execution; Iraqi violations of the law provided Iraq no advantage." D.O.D. REPORT, supra note 2, at 632.

n32 The effectiveness of the law in this respect has not been lost on military lawyers. One journalist, after interviewing many of the Pentagon's top lawyers following the Gulf War, concluded that the commanding officers "have come to realize that, as in the relationship of corporate counsel to CEO, the JAG's [military law officer's] role is not to create obstacles, but to find legal ways to achieve his client's goals -- even when those goals are to blow things up and kill people." Keeva, supra note 1, at 59.

n33 The effects of legitimation are almost impossible to measure. See Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 WIS. L. REV. 379, 426 (1983) (arguing that "the concept of legitimation . . . has no clear operational meaning, nor agreed[-] upon empirical referent."). But see Gordon, supra note 26, at 92 n.85 (recognizing legitimation as a general explanatory tool).

n34 See, e.g., RICHARD I. MILLER, THE LAW OF WAR (1975). Jean Pictet, a prominent scholar with the International Committee of the Red Cross, noted that "in the earliest human societies, what we call the law of the jungle generally prevailed; the triumph of the strongest or most treacherous was followed by monstrous massacres and unspeakable atrocities." PICTET, supra note 10, at 6.

n35 See, e.g., PICTET, supra note 10, at 25-27; HILAIRE MCCOUBREY, INTERNATIONAL HUMANITARIAN LAW 1-21 (1990); GEZA HERCZEGH, DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW 56-83 (Lajos Czank ed. & Sandor Simon trans., 1984); ROBERT EMMET MOFFIT, MODERN WAR AND THE LAWS OF WAR (1973).

n36 See, e.g., WRIGHT, supra note 14, at 101-65.

n37 In the second millennium B.C., the wars between Egypt and Sumeria were governed by a complex set of rules obligating belligerents to distinguish combatants from civilians

and providing procedures for declaring war, conducting arbitration, and concluding peace treaties. See generally PICTET, supra note 10, at 7-8; 1 THE LAW OF WAR: A DOCUMENTARY HISTORY, 3-15 (Leon Friedman ed., 1972) [hereinafter DOCUMENTARY HISTORY]. The Hindu civilization in India produced the Book of Manu, whose regulations of land warfare parallel much of the Hague regulations of 1907 on the laws and customs of war. Its provisions prohibit use of weapons that cause undue suffering and killing of unarmed combatants and civilians: "Let him not strike . . . one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight." Id. at 3 (quoting Book of Manu bk.7, art. 92). Chinese warlords adhered to a customary framework of chivalric rules designed to spare the innocent, including civilians and prisoners of war. See SUN TZU, THE ART OF WAR 76 (Samuel B. Griffith trans., 1963). The Israelites also recognized clearly prescribed laws of war. See Deuteronomy 20:13-17 (King James). Ancient Greeks and Romans also followed customary laws of war. See DOCUMENTARY HISTORY, supra at 5.

n38 See 3 HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE 323-33, 359-64 (A.C. Campbell, trans., 1901) (1625); Wright, supra note 14, at 872-75.

n39 As the Church grew to exercise state power in Europe, it abandoned its early commitment to pacifism. See, e.g., WILLIAM BELCHOR BALLIS, THE LEGAL POSITION OF WAR: CHANGES IN ITS PRACTICE AND THEORY FROM PLATO TO VATTEL 58-59 (Garland Publishing, Inc. 1973) (1937).

n40 See, e.g., Arthur Nussbaum, Just War -- A Legal Concept, 42 MICH. L. REV. 453, 455-467 (1943); Joachim von Elbe, The Evolution of the Concept of the Just War in International Law, 33 AM. J. INT'L L. 665 (1939). Thomas Cajetan, master general of the Dominicans, held that, "injuries caused not only to the combatants but even to other members of the state against which one is waging a just war, are free of guilt . . . . One is not obliged to determine if some citizens are unjust and others innocent, because the whole state is presumed to be the enemy and it is for this reason that the whole state is condemned and ravaged." PICTET, supra note 10, at 15. Fighting under the banner of a "just war," the Crusaders committed regular massacres of "infidels." See generally MAJID KHADDURI, WAR AND PEACE IN THE LAW OF ISLAM (1955); JAMES A. BRUNDAGE, MEDIEVAL CANON LAW AND THE CRUSADER (1969).

n41 See MYRES S. MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER: THE LEGAL REGULATION OF INTERNATIONAL COERCION 615 (1961) (citation omitted). In the 10th and 11th centuries, the Church issued a number of "Peace of God" proclamations prohibiting, for example, attacks upon priests or their guests, seizure of ecclesiastical lands, and combat on Christian holidays. See DOCUMENTARY HISTORY, supra note 37, at 9.

n42 See, e.g., Johan Huizinga, The Political and Military Significance of ChivalricIdeas in the Late Middle Ages, in MEN AND IDEAS 196 (James Holmes & Hans van Marle trans., 1984); Waldemar A. Solf, Protection of Civilians Against the Effects of Hostilities

Under Customary International Law and Protocol I, 1 AM. U. J. INT'L L. & POL'Y 117, 119 (1986).

n43 See M.H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 50 (1965); G.D. SQUIBB, THE HIGH COURT OF CHIVALRY (1959). In effect, the code of chivalry created a guild of warriors with legal authority to pillage. One noted historian of the Middle Ages concludes that "beneath the high idealism of chivalric honor . . . . the occasional feat of arms is a diversion from the more serious business of pillage and destruction, and chivalry owes more to the pen than the sword." RICHARD BARBER, THE KNIGHT AND CHIVALRY 210 (1974).

n44 See, e.g., IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 3-18 (1963); JULIUS STONE, LEGAL CONTROL OF INTERNATIONAL CONFLICT 3-18 (1954); David Kennedy, Primitive Legal Scholarship, 27 HARV. INT'L L.J. 1 (1986). The early publicists, like the Spanish Dominican Francisco de Vitoria, continued to use the "just war" framework but universalized its principles. FRANCISCO DE VITORIA, DE INDIS ET DE JURE BELLI REFLECTIONES (James Scott ed. & Ernest Nys trans., Carnegie Institution of Washington 1917) (1557).

n45 See H. Lauterpacht, The Grotian Tradition In International Law, 1946 BRIT. Y.B. INT'L L. 1, 15; George G. Wilson, Grotius: Law of War and Peace, 35 AM. J. INT'L L. 205 (1941).

n46 GROTIUS, supra note 38, at 291.

n47 Grotius conceded that any act required by military necessity was per se legal. For example, Grotius wrote that military necessity would permit a belligerent to injure property and persons of an enemy population and even to kill those who had surrendered unconditionally. See id. at 328-30.

n48 Rousseau turned to reason as the basis for the law:

Since the aim of war is to subdue a hostile state, a combatant has the right to kill the defenders of that state while they are armed; but as soon as they lay down their arms and surrender, they cease to be either enemies or instruments of the enemy; they become simply men once more, and no one has any longer the right to take their lives . . . . War givesno right to inflict any more destruction than is necessary for victory. These principles were not invented by Grotius, nor are they founded on the authority of the poets; they are derived from the nature of things; they are based on reason. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 57 (Maurice Cranston ed. & trans., Penguin Books 1968) (1762).

n49 See, e.g., FRITS KALSHOVEN, CONSTRAINTS ON THE WAGING OF WAR (1987); PICTET, supra note 10, at 49-58.

n50 See, e.g., WRIGHT, supra note 14, at 338-46; O'Brien, Military Necessity, supra note 9, at 109.

n51 PICTET, supra note 10, at 24 (quoting French Field Marshall Foch).

n52 The 19th century saw the end of kreigsspeil, or "play war," as von Clausewitz derisively termed the "dynastic jousting" between small professional armies that occurred between 1648 and 1792. O'Brien, Military Necessity, supra note 9, at 132. In modern wars, enormous conscript armies replaced the small ranks of professionals, and casualty rates skyrocketed for non-combatants. Those who remained at home were no longer safe from war's destructive reach. See WRIGHT, supra note 14, at 291-328.

n53 The term derives from the German phrase "kreigsraison geht vor kreigsmanier," which translates as "the necessities of war are prior to the customs of war." See, e.g., BEST, supra note 5, at 145-75; O'Brien, Military Necessity, supra note 9, at 118-28.

n54 According to Prussian Field Marshal von Moltke, "perpetual peace is a dream, and not even a beautiful dream. War is an element of the divine order of the world. In it are developed the noblest virtues of man: courage and self-denial, fidelity to duty and the spirit of sacrifice . . . . Without war, the world would stagnate and lose itself in materialism." BEST, supra note 5, at 145 (quoting von Moltke).

n55 The 1902 German Army manual on land warfare asserted that "certain severities are indispensible to war," and that humanity was best served by the "ruthless application of them." THE WAR BOOK OF THE GERMAN GENERAL STAFF 72 (J.H. Morgan trans., 1915) [hereinafter THE WAR BOOK]. In a similar vein, Prussian General von Hartmann wrote a series of influential articles in which he derided the growing humanitarian trend in the laws of war, asserting that strict enforcement of military discipline and efficiency ultimately achieved the most humane results. See O'Brien, Military Necessity, supra note 9, at 121; BEST, supra note 5, at 145.

n56 Lueder, one of Germany's foremost jurists, wrote that necessity was almost always compatible with law, but in the rare case of conflict, "when the circumstances are such that the attainment of the object of the war and the escape from extreme danger would be hindered by observing the limitations imposed by the laws of war," necessity must triumph. 4 HOLTZENDORFF'S HANDBUCH 255, reprinted in 2 JOHN WESTLAKE, INTERNATIONAL LAW 115 (1907). Lueder gave two reasons for his position: first, the right of states to self-preservation is prior to all obligations under international law; and second, law should reflect the practical reality that military commanders will always choose to violate the law if necessary to avoid defeat. See O'Brien, Military Necessity, supra note 9, at 122. Following a similar line of reasoning, Alphonse Rivier, a noted Swiss jurist, contended that when its survival was at stake, a state was actually "obliged, for the salvation of its country, to violate the rights of another state." Id. at 124.

n57 JAMES W. GARNER, STUDIES IN GOVERNMENT AND INTERNATIONAL LAW 261-66 (1943); STONE, supra note 44, at 352-54.

n58 THE WAR BOOK, supra note 55, at 68. Many European law scholars complained that the German war manual ignored the Hague Conventions, to which Germany was bound by agreement: "It is quite clear that the authors of the German manual regard military effectiveness rather than considerations of humanity the test of the legitimacy of an instrument or measure." GARNER, supra note 57, at 262. See also STONE, supra note 44, at 352.

n59 International law scholars feared that kreigsraison would justify any military act a commander viewed as helpful rather than as actually necessary. GARNER, supra note 57, at 264; STONE, supra note 44, at 352. Codification of the laws of war has not overcome this problem: military necessity has proven to be an elastic concept in the hands of diplomats and officers, who have often interpreted it to mean mere utility. See infra part VI.E.2.

n60 Even those who admitted that kreigsraison and the "rule of law" would tend to reach identical results still bitterly opposed the former approach. Typical is O'Brien's assertion that "the kreigsraison view is dangerous in its tendency rather than in any avowed intention to induce lawlessness." O'Brien, Military Necessity, supra note 9, at 127.

n61 President Abraham Lincoln officially signed the Lieber Code for the use of the Union Army in April 1863. The Lieber Code was also known as General Orders No. 100. See RICHARD S. HARTIGAN, LIEBER'S CODE AND THE LAW OF WAR 1 (1983).

n62 Id. at 21.

n63 Telford Taylor, a prosecutor at the Nuremberg Trials, calls the Lieber Code "the germinal document for codification of the laws of land warfare." Telford Taylor, Foreword, in DOCUMENTARY HISTORY, supra note 37, at xviii. Subsequent international efforts at codification such as the Brussels Conference of 1874 and the Hague Conferences of 1899 and 1907 borrowed heavily from the Lieber Code. See, e.g., id. at 152-54; Draper, supra note 34, at 71. Even the German General Staff, the intellectual center of kreigsraison, adopted the Lieber Code during the 1870 Franco-Prussian War, providing further evidence that kreigsraison and the rule of law are not as distinct as international lawyers would suggest. See O'Brien, Military Necessity, supra note 9, at 127.

n64 Lieber Code, § 1, arts. 14-19, 29 (1863), reprinted in HARTIGAN, supra note 61, at 48-50.

n65 Lieber Code, § 1, arts. 15, 17, 19, 21, reprinted in id.

n66 The tactics employed by General Philip H. Sheridan in the Shenandoah Valley and General William T. Sherman in his notorious March to the Sea included appropriation and destruction of civilian property, indiscriminate bombardment in populated areas, and general spreading of terror. See, e.g., JOSEPH T. GLATTHAAR, THE MARCH TO THE SEA AND BEYOND: SHERMAN'S TROOPS IN THE SAVANNAH AND

CAROLINAS CAMPAIGNS 134-55 (1985). When the Mayor of Atlanta protested General Sherman's evacuation of civilians, Sherman responded: "War is cruelty, and you cannot refine it; and those who brought war into our country deserve all the curses and maledictions a people can pour out . . . ." BEST, supra note 5, at 209.

n67 HARTIGAN, supra note 61, at 123.

n68 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Dec. 11, 1868, 138 Consol. T.S. 297 [hereinafter St. Petersburg Declaration], reprinted in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 102-03 (Dietrich Schindler & Jiri Toman eds., 1988) [hereinafter COLLECTION]. The states attending were Austria-Hungary, Baden, Bavaria, Belgium, Brazil, Denmark, France, Great Britain, Greece, Italy, the Netherlands, Persia, Portugal, Prussia and the North German Confederation, Russia, Sweden and Norway, Switzerland, Turkey, and Wurtemberg. Id.

n69 Id. at 102.

n70 The famed prohibition against causing unnecessary suffering was derogable for reasons of overriding military necessity and thus imposed no practical or legal limit on military action. Phillips, supra note 7, at 323. Cf. KALSHOVEN, supra note 49, at 30 (searching in vain for an example of a state's discarding a militarily useful weapon because it violated the Saint Petersburg ban on causing unnecessary suffering).

n71 St. Petersburg Declaration, reprinted in COLLECTION, supra note 68, at 102. At the time, countries considered these weapons so dangerous to the user that they were no longer manufactured. However, they ultimately proved valuable in the context of aerial warfare. Accordingly, in 1923, states reconsidered and then voided the supposedly permanent ban of 1868. See M. W. ROYSE, AERIAL BOMBARDMENT AND THE INTERNATIONAL REGULATION OF WARFARE 131-32 (1928).

n72 The drafters of the Saint Petersburg Declaration set an example to be followed at subsequent international conferences of prohibiting only weapons with no proven military value and avoiding difficult subjects through vague, non-binding resolutions incapable of imposing practical limits on conduct. See infra part V (concerning the Hague Conferences).

n73 The attending powers were Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Greece, Italy, the Netherlands, Portugal, Russia, Spain, Sweden, Norway, Switzerland, and Turkey. See Project of an International Declaration Concerning the Laws and Customs of War, Aug. 27, 1874, 4 Martens Nouveau Recueil (ser. 2) 219 [hereinafter Brussels Declaration], reprinted in COLLECTION, supra note 68, at 27.

n74 For example, Great Britain would not even send a delegate without prior assurance that naval power would be excluded from the agenda. Britain also refused to consider a

limitation on irregular troops. See ROYSE, supra note 71, at 6-7; see also BEST, supra note 5, at 160-61.

n75 See Brussels Declaration, arts. 12, 13(e), reprinted in COLLECTION, supra note 68, at 29.

n76 Id., art. 15.

n77 Thus, even though artillery bombardment had always been considered a legitimate military tactic, artillery engagements were only necessary against fortified towns. See OLIVER LYMAN SPAULDING ET AL., WARFARE 498 (1925). See also LASSA FRANCIS LAWRENCE OPPENHEIM, INTERNATIONAL LAW 281 (Lauterpacht, ed., 4th ed. 1926) [hereinafter OPPENHEIM, INTERNATIONAL LAW]. As American General William Mitchell explained, prior to World War I, "the one reason why unfortified cities had not been so attacked was because they had no means of resistance; the hostile armies merely walked in and took charge." ROYSE, supra note 71, at 151. See generally WESTLAKE, supra note 56, at 77.

n78 See COLLECTION, supra note 68, at 25 (noting that "since not all the governments were willing to accept [the agreement] as a binding convention it was not ratified.").

n79 See BEST, supra note 5, at 160-61.

n80 See supra note 6 for a listing of Hague conventions.

n81 Perhaps owing to the self-interested praise of diplomats and jurists and to a lack of critical attention, the Hague laws have generally escaped the minimal historical critique necessary to expose the extent of their humanitarian failures. The work of Royse stands as a notable exception; see generally ROYSE, supra note 71.

n82 See generally id.

n83 FREDRICK W. HOLLS, PEACE CONFERENCE AT THE HAGUE 8-10 (1900); THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES 14-15 (James B. Scott ed., 1920) [hereinafter PROCEEDINGS]. Several months later, Russia's foreign minister distributed another letter detailing a proposed agenda for the conference. The letter divided the agenda into eight basic proposals, including freezing land and sea forces at existing levels, declaring a moratorium on weapons development, restricting the use of current means and methods of warfare, and establishing an international court of arbitration to assist in settling disputes. See JAMES B. SCOTT, THE HAGUE PEACE CONFERENCES OF 1899 AND 1907 15 (James B. Scott ed., 1909) [hereinafter SCOTT, PEACE CONFERENCES]; JOSEPH HODGES CHOATE, THE TWO HAGUE CONFERENCES 9 (1910). These proposals were unprecedented insofar as they sought international agreement to restrict weapons of vital importance. The aspirations of previous conferences had been far less ambitious. See ROYSE, supra note 71, at 127.

n84 American peace groups, such as the Quakers, the Universal Peace Union, and the American Peace Society, urged their members to lobby U.S. officials to support the Russian plan. European peace activists like W.T. Stead and Frederic Passy, who had a better organized movement than their American counterparts, used their extensive publishing networks to rally support. See, e.g., CALVIN DEARMOND DAVIS, THE UNITED STATES AND THE FIRST HAGUE PEACE CONFERENCE 54-63 (1962); see also A HISTORY OF THE PEACE CONFERENCE AT THE HAGUE 5-8 (Perris ed., 1899) [hereinafter HISTORY].

n85 For a survey of the attitude of the press towards the Hague Conference, WILLIAM HULL, THE TWO HAGUE CONFERENCES 21-27 (1972); 2 ANDREW D. WHITE, THE AUTOBIOGRAPHY OF ANDREW D. WHITE 251-52 (1919) [hereinafter WHITE, AUTOBIOGRAPHY].

n86 After a few days at the Conference, Andrew D. White encountered tremendous mistrust of Russia's motivations among the European diplomatic corps. He noted that "among all these delegates acquainted with public men and measures in Europe, there is considerable distrust of the intentions of Russia; and, naturally, the weakness of the Russian Emperor is well understood, although all are reticent regarding it." ANDREW D. WHITE, THE FIRST HAGUE CONFERENCE 8 (1912) [hereinafter WHITE, THE FIRST HAGUE CONFERENCE]. White reported that Count Munster, the head of the German delegation, considered calling the conference to be "a political trick -- the most detestable ever practiced." Id. at 63.

Some leaders felt that Russia's actions were not only manipulative, but risked bringing Europe closer to war than peace. A noted French diplomat remarked, "This proposal for disarmament will have the result of convincing everyone that war is imminent. It should be noted that peace projects, general in scope, usually lead to a conflict." 1 PAUL CAMBON, CORRESPONDENCE, 1870-1914, at 438 (1946). Kaiser Wilhelm II also worried that the Russian proposal would "add not a little to the prospects of war." 1 PRINCE VON BULOW, THE MEMOIRS OF PRINCE VON BULOW 321 (1931). The Japanese Prime Minister privately, and accurately, speculated to a British official that failure of the Czar's diplomatic efforts would lead to war with Japan. See, e.g., 1 BRITISH DOCUMENTS ON THE ORIGINS OF THE WAR, 1898-1914, at 221-22 (G.P. Gooch & Harold Temperly, eds., 1926).

n87 Austria was in the process of producing a new rapid-fire field gun that fired rounds at six times the rate of comparable Russian artillery. Russia's shattered economy simply could not provide the $ 50 million necessary to equip its army with the new gun, which was already standard in the German and French armies. The Czar instead proposed an international conference on disarmament. See, e.g., E.J. DILLON, THE ECLIPSE OF RUSSIA 276-78 (1918); Thomas K. Ford, The Genesis of the First Hague Peace Conference, 6 POL. SCI. Q. 354, 364 (1936). One historian of the Hague Conference offers the following harsh but accurate assessment:

The offer to the nations of the world to meet for the purpose of limiting armaments was in truth a sort of masterpiece of diplomatic finesse, worthy of study by aspiring statesmen of the future . . . . The truth was that the peace rescript had been conceived in fear, brought forth in deceit, and swaddled in humanitarian ideals. DAVIS, supra note 84, at 46.

n88 N.Y. TIMES, May 14, 1899, at 19. See also WHITE, AUTOBIOGRAPHY, supra note 85, at 256.

n89 Despite private misgivings, diplomats and spokespersons effusively praised the Russian proposal, even appropriating the language of peace activists. See, e.g., HISTORY, supra note 84, at 6-7. The delegates to the Hague Conference were clearly conscious of the need to cultivate a good public image while at the same time safeguarding their nations's military interests. See, e.g., BEST, supra note 5, at 139. The chief German delegate, responding to the need for false appearances, explained, "we can, in regard to Russia, not allow the conference to end with an entire fiasco and must try to cover it with a peaceful-looking cloak." See DAVIS, supra note 84, at 88.

n90 Nations sending government representatives were Austria-Hungary, Belgium, Bulgaria, China, Denmark, France, Germany, Great Britain, Greece, Italy, Japan, Luxemburg, Mexico, Montenegro, the Netherlands, Persia, Portugal, Romania, Russia, Serbia, Siam, Spain, Sweden and Norway, Switzerland, Turkey, and the U.S. See 1899 Hague Convention, supra note 6, 32 Stat. at 1810-11, 1 Bevans at 251-52.

n91 See SCOTT, PEACE CONFERENCES, supra note 83, at 34.

n92 See DAVIS, supra note 84, at 88. Most other delegates viewed their job with embarrassment; one predicted that the result would be "a first-class burial, attended by all the ceremony that anyone could desire, but nonetheless a burial." Id. at 89 (quoting New York Times, May 21, 1899).

n93 WHITE, AUTOBIOGRAPHY, supra note 85, at 256.

n94 The U.S. and British delegates were instructed by their governments to reject any attempts to restrict weapons. U.S. DEPT. OF STATE, INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE CONFERENCE OF 1899, reprinted in SCOTT, supra note 83, at 6-7. See Michael Howard, Temperamenta Belli: Can War Be Controlled?, RESTRAINTS ON WAR 1, 60-61 (Michael Howard ed., 1979) (citing Donald C. Watt, Restraints on War in the Air before 1945). The Germans rejected limitations with the cynical argument that "we cannot tie our hands in advance for fear of neglecting more humanitarian methods which may be invented in the future." KALSHOVEN, supra note 49, at 372.

n95 The U.S. military delegate had prepared a similar speech, but happily abandoned it after Colonel von Schwarzhoff ended debate on the issue. SCOTT, PEACE CONFERENCES, supra note 83, at 308-09.

n96 Fearing German manpower, France and Russia proposed limiting land forces. Germany proposed limiting naval armaments, which Britain and the U.S. promptly rejected. See ROYSE, supra note 71, at 7-9; DAVIS, supra note 84, at 110-24; WHITE, AUTOBIOGRAPHY, supra note 85, at 19, 22. The stronger military powers similarly blocked all disarmament proposals by Russia and the weaker nations. In the rare case when the development of a weapon favored the interests of smaller powers (e.g., submarines, which undermined the advantages of naval powers), the smaller powers opposed limitation. See McDougal & Feliciano, supra note 9, at 618-19. For the records of this debate, see Proceedings, supra note 83, at 367-69.

n97 ROYSE, supra note 71, at 8.

n98 As finally adopted, article 25 read "the attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited." 1899 Hague Convention, supra note 6, art XXV, 32 Stat. at 1818, 1 Bevans at 257.

n99 See SCOTT, supra note 83, at 493-97. Delegates replaced the traditional term "unfortified" with "undefended" in order to increase the range of available targets. See, e.g., OPPENHEIM, INTERNATIONAL LAW, supra note 77, at 285; J.M. SPAIGHT, WAR RIGHTS ON LAND 161 (1911) [hereinafter SPAIGHT, LAND]. A town that housed a company of soldiers, or simply a weapons factory, could be seen as defended even though it was clearly not fortified. See ROYSE, supra note 71, at 157-59.

n100 SCOTT, PEACE CONFERENCES, supra note 83, at 424. None of the delegates raised any objection to this interpretation, which also implied the destruction of "any persons whatever" who happened to reside in the targeted buildings. Id.

n101 See SCOTT, PEACE CONFERENCES, supra note 83, at 79-88.

n102 See KALSHOVEN, supra note 49, at 374; ROYSE, supra note 71, at 145. For a summary of the debate over the ban see SCOTT, PEACE CONFERENCES, supra note 83, at 365-67.

n103 See SCOTT, PEACE CONFERENCES, supra note 83, at 79-88.

n104 Captain Mahan, the chief U.S. military delegate, dismissed the humanitarian motives of his opponents, arguing that new weapons were always denounced as barbaric until proven militarily useful, at which point the pretense was dropped and they quickly entered the arsenals of all nations. See 2 SCOTT, PEACE CONFERENCES, supra note 83, at 36-39. As Mahan explained, "the reproach of cruelty and perfidy, addressed against these supposed shells, was equally uttered formerly against firearms and torpedoes, both

of which are now employed without scruple." Id. at 37. See also KALSHOVEN, supra note 49, at 30-32.

n105 See SCOTT, PEACE CONFERENCES, supra note 83, at 79-88.

n106 See WRIGHT, supra note 14, at 357.

n107 Explaining his country's opposition to the ban, Sir John Ardagh reminded his colleagues that ordinary bullets were not sufficient against colonized peoples:

In civilized war a soldier penetrated by a small projectile is wounded, withdraws to the ambulance, and does not advance any further. It is very different with a savage. Even though pierced two or three times, he does not cease to march forward, does not call upon the hospital attendants, but continues on, and before anyone has time to explain to him that he is flagrantly violating the decision of the Hague Conference, he cuts off your head. SCOTT, PEACE CONFERENCES, supra note 83, at 343.

n108 While paying lip service to humanitarian ideals, the U.S. delegate emphasized that the unreliable nature of the weapon justified its regulation:

The balloon, as we now know it, is not dirigible; it can carry but little; it is capable of hurling, only on points exactly determined and over which it may pass by chance, indecisive quantities of explosives, which would fall, like useless hailstones, on both combatants and non-combatants alike. Parks, supra note 6, at 11.

n109 SCOTT, PEACE CONFERENCES, supra note 83, at 214.

n110 Id. at 239.

n111 1899 Hague Convention, supra note 6, arts. XXII, XXIII (e), 32 Stat. at 1817-18, 1 Bevans at 256-57. One commentator noted that the value of prohibiting materials that cause superfluous injury "depends upon the agreement of the military authorities as to what implements or materials possess such a character. Unhappily, such authorities have not been of one mind." ROYSE, supra note 71, at 133.

n112 The Preamble reads as follows:

Until a more complete code of the laws of war is issued, . . . populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized peoples, from the laws of humanity, and the requirements of the public conscience.

1899 Hague Convention, supra note 6, 32 Stat. at 1805, 1 Bevans at 248.

n113 Notwithstanding public criticism, diplomats kept a positive face on the Hague results. American Secretary of State Elihu Root commented that "the work of the Second Hague Conference . . . presents the greatest advance ever made at any single time toward the reasonable and peaceful regulation of international conduct, unless it be the first Hague Conference of 1899." SCOTT, PEACE CONFERENCES, supra note 83, at iii. Academics and jurists also tended to support the results of the Hague Conferences, blaming public disenchantment on unrealistic expectations. See, e.g., JOHANNES PHILIPPUS SUIJLING, THE HAGUE PEACE CONFERENCES OF 1899 AND 1907 13-14 (1910).

n114 Public opinion condemned the results of the Conference for failing to realize its lofty goals. As Holls, one of the American delegates, remarked upon returning to the U.S., "it is a matter of history that immediately after the adjournment of the Conference this alleged failure to agree, even upon a limitation of present armaments, was made the text of innumerable unfavorable comments upon the Conference as a whole . . . ." HOLLS, supra note 83, at 66. Ambassador White, upon receiving negative accounts in popular newspapers and magazines, lamented that "the evil I dreaded, as regards the formation of public opinion in relation to the work of our conference, is becoming realized." WHITE, THE FIRST HAGUE CONFERENCE, supra note 86, at 100.

n115 CHOATE, supra note 83, at 56.

n116 Expectations having been dashed by the first conference, the Russo-Japanese War, the Italian invasion of Turkey, and the growing tensions between the European powers, the public mood towards the Second Hague Conference was one of cynicism and indifference. See ROYSE, supra note 71, at 49-55.

n117 SCOTT, supra note 83, at 561. The Czar dispatched de Martens, the illustrious humanitarian, on a tour of Europe prior to calling the conference in order to preempt the issue of disarmament. See MERZE TATE, THE DISARMAMENT ILLUSION 324-27 (1942).

n118 Convention Concerning Bombardment by Naval Forces in Time of War, October 18, 1907, arts. 2, 3, 36 Stat. 2351, 2363-64, 1 Bevans 681, 689.

n119 See ROYSE, supra note 71, at 16-17.

n120 The prospect of losing their comparative military advantage, as well as the protection derived from geographic isolation, led naval powers like Great Britain and the U.S. to favor bans on aerial advances. See CHOATE, supra note 83, at 14.

n121 In return for supporting an extension of the ban on balloon-launched munitions, France, Germany, Russia, Italy, and other air powers insisted on treating aerial

bombardment in a similar fashion to land and naval bombardment by amending article 25 to read "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." 1907 Hague Convention, supra note 6, art. 25, 36 Stat. at 2302, 1 Bevans at 648. See SCOTT, supra note 83, at 614, for a discussion of this political bargain. Small powers without developed air war programs resisted the compromise, but humanitarian arguments failed to sway the leading air powers. See ROYSE, supra note 71, at 114-20. Although framed as a prohibition, the change in article 25 had the effect of legitimating aerial bombardment of defended towns. From that point, it was a small step to attacking populated areas on the pretext that they were "defended" by the presence of a military objective.

n122 Air power was set to revolutionize warfare. The threat of air attack already existed in the form of military dirigibles (part of the weapons programs of France, Germany, Russia, and Italy), and the Wright Brothers and Alberto Santos-Dumont had completed successful flights. See Parks, supra note 6, at 16.

n123 Moreover, the Hague Conferences demonstrated that states tended to interpret military necessity to mean mere utility -- anything useful or advantageous in war. One of the foremost authorities on the Hague Conferences drew the following conclusion:

The two great peace conferences of modern times, along with their lesser predecessors, did not succeed in reducing armaments, or in restricting the development and improvement of weapons, or in prohibiting or restricting the use of any effective weapon or method of warfare . . . . The proceedings of the Hague Conference demonstrate rather that a weapon will be restricted in inverse proportion, more or less, to its effectiveness; that the more efficient a weapon or method of warfare the less likelihood there is of its being restricted in action by rules of war. ROYSE, supra note 71, at 131-32.

n124 The Hague was characterized by the self-interested maneuverings of large and small powers intent on retaining those means and methods of war in which they were superior, and limiting those in which they were inferior. See DAVIS, supra note 84, at 110-25; cf. ROYSE, supra note 71, at 130-31.

n125 For a survey of the sociological, political and economic conditions precipitating World War I, see WRIGHT, supra note 14, at 300-03, 338-41, 725-27.

n126 The development of heavy industry through the introduction of methods of mass production powered the rapid advance of the military technology and the growing interdependence of military and civil societies. See Elbridge Colby, Laws of Aerial Warfare, 10 MINN. L. REV. 207, 207-27 (1926).

n127 J.M. Spaight, Legitimate Objectives in Air Warfare, 1944 BRIT. Y.B. INT'L L. 158, 162.

n128 Where civilians could be reached they had always been in danger of attack. For instance, the starvation of civilians in besieged towns has long been considered a legitimate military tactic. See George A. Mudge, Starvation as a Means of Warfare, 4 INT'L LAW. 228, 228-51 (1970).

n129 4 CHARLES WEBSTER & NOBLE FRANKLAND, THE STRATEGIC AIR OFFENSIVE AGAINST GERMANY, 1939-45, at 67 (1961).

n130 O'Brien, Military Necessity, supra note 9, at 134. See also WRIGHT, supra note 14, at 300-03.

n131 Air power enabled belligerents to cut off an enemy's power at its manufacturing source, before it became a gun in the hand of a soldier. By this logic, the maker of arms was the most attractive target, followed by the arms factory and lastly the armed soldier. One military historian concluded: "By no process of reasoning could a belligerent be persuaded that the makers of armaments in his enemy's country were less his active enemies than the men who wore uniform [sic] and opposed him in the field. They had been spared so far because they could not be got at and for no other reason at all." J.M. SPAIGHT, AIR POWER AND WAR RIGHTS 43-44 (3d ed. 1947) [hereinafter SPAIGHT, WAR RIGHTS].

n132 Italian General Giulio Douhet, a leading proponent of morale attacks, argued that "[a] people who are bombed today as they were bombed yesterday, . . . who know they will be bombed again tomorrow and see no end to their martyrdom, are bound to call for peace at length." STEFAN T. POSSONY, STRATEGIC AIR POWER: THE PATTERN OF DYNAMIC SECURITY 146 (1949) (quoting unnamed work of General Douhet). For a discussion of the strategy behind morale bombing, see id. at 146-68. A British contemporary of Douhet's, summarizing the arguments of the "newer school" of thought on air power, observed that "it is a whole nation which wills and makes war to-day. The man in the street, the voter, not the soldier or sailor, is the master, the principal, the person to be impressed and won over. Air power can break his moral [sic]." J.M. SPAIGHT, AIR POWER AND THE CITIES 117 (1930) [hereinafter SPAIGHT, CITIES].

n133 See, e.g., T. J. LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 168, 204 (6th ed. 1910); 2 L. OPPENHEIM, INTERNATIONAL LAW: WAR AND NEUTRALITY 155-58 (2d ed. 1912) [hereinafter OPPENHEIM, WAR AND NEUTRALITY]; COLEMAN PHILLIPSON, WHEATON'S ELEMENTS OF INTERNATIONAL LAW 507-09 (5th ed. 1916). For a survey of the legal efforts made to constrain air power, see Georg Schwarzenberger, The Law of Air Warfare and the Trend Towards Total War, 8 AM. U. L. REV. 1, 2-10 (1959).

n134 Westlake interpreted the Hague's temporary prohibition on balloon-launched bombardment to include aircraft, and recommended that since "the civilian population cannot be protected from danger if bombs may be dropped from the sky . . . . The prohibition ought to be made perpetual." WESTLAKE, supra note 56, at 77. In a similar

vein, Professor Pillet commented that bombardment violates "that great law of reason which sanctions such injury only being inflicted as is necessitated by the object of the war." SPAIGHT, LAND, supra note 99, at 157-58. These interpretations ran contrary to the official diplomatic understandings at The Hague. See supra part V.E. One commentator compared "the jurists who demanded the total prohibition of the new arm" to "the Pope who issued the bull against the comet." J.M. SPAIGHT, AIRCRAFT IN WAR 3 (1914) [hereinafter SPAIGHT, AIRCRAFT].

n135 Article 25 prohibits "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended." 1907 Hague Convention, supra note 6, art. 25, 36 Stat. at 2302, 1 Bevans at 648. Professor Oppenheim, writing in 1912, maintained that article 25 imposed a categorical ban on aerial attacks against such undefended targets. OPPENHEIM, WAR AND NEUTRALITY, supra note 133, at 155. Professor Phillipson, on the other hand, argued that aerial bombardment should be subject to the same restrictions as land and naval bombardment, which allow attacking clear military targets even in undefended areas. See PHILLIPSON, supra note 133, at 622-23. As the interpretation of "undefended" came to rely upon an absence of military targets, these two positions coalesced. If a town contained "military objectives," then it would no longer be considered "undefended." See R.Y.J., Open Towns, 1945 BRIT. Y.B. INT'L L. 258, 260-61. Eventually, the belligerents in World War I defined a military objective sobroadly that it encompassed the entire enemy civilian population.

n136 See, e.g., ROYSE, supra note 71, at 174-93; SPAIGHT, WAR RIGHTS, supra note 131, at 220-32; Colby, supra note 126, at 214-17. General D. Henderson, Chairman of the Royal United Services Institute, remarked that "to sail an airship over London and to drop bombs here and there would be quite opposed to the ethics of warfare as we at present understand them." SPAIGHT, AIRCRAFT, supra note 134, at 12.

n137 See SPAIGHT, WAR RIGHTS, supra note 131, at 222-25; 1 JAMES WILFORD GARNER, WORLD ORDER 417-23 (1920).

n138 Bombing enemy civilians to destroy morale was a deliberate tactic of all sides in World War I, "accepted as part of the functions of the bombardment groups." ROYSE, supra note 71, at 192. See also Gerald J. Adler, Targets in War: Legal Considerations, 8 HOUS. L. REV. 1, 40 (1970).

n139 One military historian noted that "it is obvious that law of war considerations received little (if any) attention, except as a tool for propaganda alleging indiscriminate attacks by the enemy." Parks, supra note 6, at 20-21.

n140 Bryan Ranft, Restraints on War at Sea before 1945, in HOWARD, supra note 94, at 54.

n141 Article 25 neglected to define "undefended" and thus left it to the belligerents to provide substantive clarification. See Phillips, supra note 7, at 322-23. See also 1 WEBSTER & FRANKLAND, supra note 129, at 67.

n142 Throughout the war, military leaders justified their attacks on those civilian centers that harbored military objectives. Italian General Cadorna described Italy's "bold and successful air raids directed against a military objective" as being "in full observance of the laws and usages of war." SPAIGHT, WAR RIGHTS, supra note 131, at 223-24 (quoting General Cadorna's report of August 21, 1915). As Admiral Scheer, Commander of Germany's High Seas Fleet, explained: "It never was the object of an airship raid to attack defenceless dwelling-places." Rather, "their aim always was to destroy those establishments which, either directly or indirectly, served some military purpose." Id. at 231, quoting SCHEER, GERMANY'S HIGH SEA FLEET IN THE WORLD WAR 207-08 (1920).

n143 ROYSE, supra note 71, at 193. This view finds wide support among military historians: "In general, the airship commanders appear to have been content to dump their bombs almost anywhere, and, having jettisoned them, to have cherished the fond hope that some military objective had been demolished." SPAIGHT, CITIES, supra note 132, at 184.

n144 See, e.g., BRIAN BOND, WAR AND SOCIETY IN EUROPE, 1870-1970, at 100-34 (1986).

n145 In order to avoid enemy fire, sorties were often flown at night and at high altitudes. The planes carried bombs that used crude aiming mechanisms. Under these conditions, "to require aviators to single out the one class of persons and things from the other and to confine their attacks 'exclusively' to one of them will in many cases be tantamount to an absolute prohibition of all bombardment." James W. Garner, Proposed Rules for the Regulation of Aerial Warfare, 18 AM. J. INT'L L. 56, 69 (1924). Belligerents were unwilling to make this sacrifice. See Colby, supra note 126, at 207-10.

n146 See SPAIGHT, WAR RIGHTS, supra note 131, at 231-43. In all, Germany conducted 208 Zeppelin sorties, killing 557 Britons and injuring 1360. LAWRENCE H. ADDINGTON, THE PATTERNS OF WAR SINCE THE EIGHTEENTH CENTURY 139 (1984). The British government estimated that air raids against London through February 13, 1919, killed 1284 non-combatants and injured 3105 more. See GARNER, supra note 57, at 65. Germany manifested a similar disregard for civilians in France, dropping 396 bombs on Paris in 1918, killing 402 and injuring 809. See ROYSE, supra note 71, at 176. Casualties from these bombings were limited primarily by a lack of technological capacity. See 1 WEBSTER & FRANKLAND, supra note 129, at 36-40.

n147 ROYSE, supra note 71, at 181. The German Kaiser supported a similar policy towards the French, stating that "my soul is torn, but . . . if I admit considerations of humanity it [war] will be prolonged for years." CRIMES OF WAR 135 (Richard A. Falk et al., eds., 1971).

n148 Addressing the Reichstag in March 1916, the Imperial Chancellor declared: "Every means that is calculated to shorten the war constitutes the most humane policy to follow.

When the most ruthless measures are considered best calculated to lead us to victory, and a swift victory . . . then they must be employed." GARNER, supra note 57, at 271.

n149 See HOWARD, supra note 94, at 10. For a survey of the indiscriminate bombing by the Entente, see ROYSE, supra note 71, at 183-92.

n150 Official French instructions of March 1918 explained that "as regards both day and night bombardment, the moral effect produced and the tactical results obtained are almost always more important than the actual damage done." ROYSE, supra note 71, at 214 (quoting Instruction sur l'Organization [sic] et l'emploi de l'Aeronautique aux Armees, Titre III, Aviation de Bombardement). By the end of the war, the Entente had adopted a night-time bombing strategy in which "the entire town would be subject to bombardment by raiding parties sometimes as large as fifty aircraft, the result nearly always being general, widespread shelling." Id. at 184.

n151 In a memorandum dated June 27, 1918, Major-General Sykes described the objectives of aerial bombardment in the following terms: "The aim of such attacks would be to sow alarm . . . . The wholesale bombing of densely populated industrial centres would go far to destroy the morale of the operatives." 1 WEBSTER & FRANKLAND, supra note 129, at 46.

n152 Legal condemnation of war conduct was limited to post-war attempts to further humiliate the defeated Germans. In Coenca Bros. v. Germany (1927), the Greco-German Mixed Arbitral Tribunal found that Germany had violated international law in its night-time attack on Salonika by failing to give warning before bombardment. L.C. GREEN, Aerial Considerations in the Law of Armed Conflict, in ESSAYS ON THE MODERN LAW OF WAR 135, 136-37 (citing 7 Recueil des Decisions des Tribunaux Arbitraux Mixtes 683 (1927)).

n153 Donald C. Watt, Restraints on War in the Air Before 1945, in HOWARD, supra note 94, at 63. The British felt that they had an advantage over Germany in aerial bombardment and refused any limitations on their ability to exploit that advantage. See 1 WEBSTER & FRANKLAND, supra note 129, at 50.

n154 Since it is difficult for a commander to know before an attack whether its terror will produce a military advantage, the attack's legality rests either on the commander's subjective intent or on an objective assessment of what his expectation reasonably should have been. Prosecuting a commander under such a standard would be next to impossible.

n155 BOND, supra note 144, at 150. See also Note, The League of Nations and the Laws of War, 1920 BRIT. Y.B. INT'L L. 112-16.

n156 See, e.g., URI BIALER, THE SHADOW OF THE BOMBER: THE FEAR OF AIR ATTACK AND BRITISH POLITICS, 1932-1939 101-11 (1980); GARNER, supra note 57, at 430-64.

n157 The attempt to ban war outright in the Kellogg-Briand Pact, see supra note 5, marked the pinnacle of post-war legal utopianism. Proponents of these efforts viewed the laws of war as part of the problem, maintaining that "it is by the development of the law of peace, rather than by renewing the attempts to codify the law of war, that a stable international system can be built up by the League of Nations." Note, supra note 155, at 116.

n158 See 6 John Bassett Moore, Rules of Warfare: Aircraft and Radio, in THE COLLECTED PAPERS OF JOHN BASSETT MOORE 140-225 (1944); GARNER, supra note 57, at 430-64.

n159 John Bassett Moore, U.S. representative and Chairman of the Commission, stated that "the preservation of the distinction between combatants and non-combatants, especially as affected by aerial bombardment, looms larger in the public mind than any other question before the Commission." ROYSE, supra note 71, at 212 n.132 (citation omitted). See also JOHN BASSETT MOORE, INTERNATIONAL LAW AND SOME CURRENT ILLUSIONS 182-94 (1924).

n160 One participant commented that "the majority of commissioners had little or no technical acquaintance with the art and practice of war. Some seemed inclined to believe that the course of war, even when great national emotions were aroused, might be guided by the phrases of a code of rules previously agreed upon." William L. Rodgers, The Laws of War Concerning Aviation and Radio, 17 AM. J. INT'L. L. 629, 633 (1923). The technical advisors to the Commissioners possessed the necessary expertise, but lacked the authority. See id. at 633-34.

n161 The most ambitious provisions prohibited even precise attacks on critical military facilities in urban areas, thereby allowing belligerents to immunize military assets simply by situating them among civilians. See Rules of Warfare: Aircraft and Radio, arts 24.1, 24.3, reprinted in COLLECTION, supra note 68, at 210. One of the delegates, who resisted the absolute prohibitions on aerial bombardment, explained that "to ask air power to refrain from the 'direct action' of which it is capable is to demand of it a self-denial to which there is no parallel in history." J.M. Spaight, The Doctrine of Air-Force Necessity, 1925 BRIT. Y.B. INT'L L. 1, 4-5.

n162 Phillips, supra note 7, at 326. For the reactions of the major powers, see Parks, supra note 6, at 25-35. "The 1923 Hague Air Rules suffered an ignominious death, doomed from the outset by language that established rules for black-and-white situations in a combat environment permeated by shades of gray." Id. at 35.

n163 See Parks, supra note 6, at 35. The failure of the Washington Conference represents the flip side of the failure of the Hague Conference. Whereas Hague laws supported military necessity under the guise of humanitarianism and legitimated unrestrained belligerent conduct, the laws drafted at the Washington Conference ignored military necessity altogether and were sub-sequently abandoned by sovereign powers. Consequently, neither conference succeeded in protecting civilians.

n164 See BOND, supra note 144, at 135-67. The bombing of Guernica, which killed up to 10,000 civilians, sparked British fears that an equivalent German air attack against British cities "would correspond to the destruction of a borough of 200,000 inhabitants." SPAIGHT, WAR RIGHTS, supra note 131, at 255, quoting GEORGE L. STEER, THE TREE OF GERNIKA 85 (1938). Europe and the U.S. condemned the Japanese bombings in Nanking, Canton and Hankow as "unwarranted and contrary to the principles of law and humanity." Id. at 256.

n165 See Watt, supra note 94, at 68; BARON PHILIP NOEL-BAKER, THE FIRST WORLD DISARMAMENT CONFERENCE 1932-33 AND WHY IT FAILED (1979).

n166 SPAIGHT, WAR RIGHTS, supra note 131, at 43.

n167 See id. at 244-49. Limitations on air warfare were blocked by Germany. France, who had the weakest air force among the major powers, originally proposed a complete ban on aerial warfare, while Britain sought limits by type of aircraft and targets. Neither proposal was adopted. Id.

n168 Goda, The Protection of Civilians from Bombardment by Aircraft: The Ineffectiveness of the International Law of War, 33 MIL. L. REV. 93, 97-98 (1950), quoting 337 PARL. DEB., H.C. (5th ser.) 937 (1938). Not coincidentally, these humanitarian principles served British interests. As one historian observes, "it became very clear in the 1930s that the British (and French) governments would go to almost any lengths rather than become involved in an air slugging match." BOND, supra note 144, at 153.

n169 SPAIGHT, WAR RIGHTS, supra note 131, at 257, quoting 337 PARL. DEB., H.C. (5th Ser.) 938 (1938).

n170 ROBERT E. OSGOOD & ROBERT W. TUCKER, FORCE, ORDER AND JUSTICE 217 (1967).

n171 SPAIGHT, WAR RIGHTS, supra note 131, at 259.

n172 The British and French replied in a joint communique that they "some time ago sent explicit instructions to the commanders of their armed forces prohibiting the bombardment, whether from the air or the sea, or by artillery on land, of any except strictly military objectives in the narrowest sense of the word." Id. at 259. Hitler responded in kind, noting that

[the] precept of humanity in all circumstances to avoid bombing non-military objectives during military operations corresponds entirely to my own attitude and has always been advocated by me. I therefore give my unqualified agreement to the suggestion that the Governments involved in the present hostilities should publicly make corresponding declarations.

Id. at 260.

n173 U.S. Navy directives issued in May of 1941 prohibited "terrorizing the civilian population . . . [or] injuring noncombatants." Parks, supra note 6, at 38 (quoting U.S. Navy, Tentative Instructions for the Navy of the United States Governing Maritime and Aerial Warfare (1941)). As Major General Kuter, Assistant Chief of the American Air Force Staff for Plans, explained, "our entire target policy has been founded on the fact that it was uneconomical to bomb any except military objectives and the German productive capacity." DAVIS, supra note 84, at 94. See also MATLOFF, UNITED STATES ARMY IN WORLD WAR II: STRATEGIC PLANNING FOR COALITION WARFARE 1943-1944, at 10-32 (1958). Nevertheless, President Roosevelt and his military advisors were prepared, according to instructions prepared by Air Force Plans Division Number 1 in 1941, to undertake "area bombing of cities to give the coup de grace to german morale." 1 THE ARMY AIR FORCES IN WWII 606 [hereinafter ARMY AIR] (Craven & Crate eds., 1948). In fact, as early as 1926, the U.S. Air Service Tactical School had already endorsed the concept of morale bombing, instructing pilots that "at the beginning of a campaign bombardment is an efficient weapon . . . to weaken the morale of the enemy people by attacks on centers of population." ROYSE, supra note 71, at 215. For a general discussion of U.S. air strategy in Europe, see ARMY AIR at 594-612.

n174 1 WEBSTER & FRANKLAND, supra note 129, at 99. As these two historians point out, "in view of the British air inferiority it is not surprising to find that the possibility of restricting bombing to purely military objectives . . . received fresh and sympathetic consideration . . . . Both the Air Officer Commander-in-Chief, Bomber Command, and the Air Ministry were of the opinion that restrictions on bombing would be an advantage . . . ." Id. In 1938, it was estimated that Germany could drop 600 tons of bombs a day on Britain to the mere 100 tons per day that Britain and France could drop on Germany. See Howard, supra note 94, at 76. British Air Marshal Slessor stated: "We did issue in August 1939 instructions which defined military objectives very narrowly . . . . I regarded it all as a matter not of legality but of expediency . . . . We should no doubt have taken a different line if we had believed that, in the near future and with our existing equipment, we could have achieved anything like decisive results from an aerial offensive. But at the time of Munich we did not believe that." SLESSOR, THE CENTRAL BLUE 214 (1957).

n175 For the directive issued by the Luftwaffe, entitled "The Conduct of the Air War," see Parks, supra note 6, at 39. At one stage during World War II, the Operational Staff of the German military contemplated renouncing all obligation imposed by the laws of war, but decided against it upon realizing that the disadvantages would outweigh the marginal advantages gained. See McDougal & Feliciano, supra note 9, at 813.

n176 The directive instructed pilots to target the morale of enemy populations in order to weaken support for the war. McDougal & Feliciano, supra note 9, at 813.

n177 See 2 WEBSTER & FRANKLAND, supra note 129, at 21-44; Goda, supra note 168, at 98-111.

n178 General Trenchard harbored no humanitarian pretensions:

If you are bombing a target at sea, then 99 per cent. of your bombs are wasted . . . . If, however, our bombs are dropped in Germany, then 99 per cent. which miss the military target all help to kill, damage, frighten or interfere with Germans in Germany and the whole 100 per cent. of the bomber organization is doing useful work, and not merely 1 per cent. of it. 4 WEBSTER & FRANKLAND, supra note 129, at 195.

n179 See Goda, supra note 168, at 105-13.

n180 See 4 WEBSTER & FRANKLAND, supra note 129, at 273 (quoting the Combined Bomber Offensive from the United Kingdom (Pointblank) as approved by theCombined Chiefs of Staff, 14th May 1943).

n181 By conservative estimate, terror bombing by the Allies killed 305,000 Germans civilians and seriously injured 780,000. BOMBING SURVEY, supra note 12, at 36. The Japanese death toll was 330,000 with another 476,000 wounded. Id. at 92.

n182 See Richard G. Davis, Operation 'Thunderclap': The U.S. Army Air Forces and the Bombing of Berlin, 14 J. STRAT. STUD. 90 (1991); Alfred Goldberg, Establishment of the Eighth Air Force in the United Kingdom, in ARMY AIR, supra note 173, at 612; 5 S. WOODBURN KIRBY, THE WAR AGAINST JAPAN: THE SURRENDER OF JAPAN 161-69 (1969); Goda, supra note 168, at 104-07.

n183 WALZER, supra note 19, at 261.

n184 This paper will not enter the debate on the legality of the atomic bomb. Many commentators insist that the bombings violated international law, for "to approve atom bombing would be to confess that all the denunciations of indiscriminate bombardment at The Hague and elsewhere were nothing but hypocrisy and insincerity." SPAIGHT, WAR RIGHTS, supra note 131, at 276. However, the same interpretation of military objectives employed to justify aerial bombardment would likely cover the atomic attacks. See, e.g., GEORG SCHWARZENBERGER, THE LEGALITY OF NUCLEAR WEAPONS (1958). For more detailed examination of this issue, see Falk, The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki, 59 AM. J. INT'L L. 759 (1965); O'Brien, Military Necessity, supra note 9; Henry L. Stimson, The Decision to Use the Atomic Bomb, HARPER'S MAGAZINE, Feb. 1947, at 97; Morton, The Decision to Use the Atomic Bomb, in COMMAND DECISIONS 388 (Kent Roberts Greenfield ed., 1954); WALZER, supra note 19, at 264-68.

n185 BOMBING SURVEY, supra note 12, at 71.

n186 Id. at 37-38.

n187 Desaussure and Glasser, Air Warfare -- Christmas 1972, in LAW AND RESPONSIBILITY, supra note 20, at 125 (quoting Bindschedler-Robert, A RECONSIDERATION OF THE LAW OF ARMED CONFLICTS (1971)). The United States Strategic Bombing Survey supports this finding. BOMBING SURVEY, supra note 12, at 39. See also ROBIN HIGHAM, AIRPOWER: A CONCISE HISTORY 79-95 (3d ed. 1988); STONE, supra note 44, at 628-31.

n188 See M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 69-86 (1992) (overview of scholarly reaction to the Nuremberg trials).

n189 The Nuremberg Trials were the first of a series of war crimes trials held by the Allied powers after their victory in World War II. See generally WAR CRIMES COMM'N, U.N., TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIALS UNDER CONTROL COUNCIL LAW NO. 10 (1952). The final judgments appear in 41 AM. J. INT'L L. 172 (Supp. 1947).

n190 See, e.g., Quincy Wright, The Law of the Nuremberg Trial, 41 AM. J. INT'L L. 38 (1947); Henry L. Stimson, The Nuremberg Trial: Landmark in Law, 25 FOREIGN AFF. 179 (1946-47); Sheldon Glueck, The Nuremberg Trial and Aggressive War, 49 HARV. L. REV. 396, 396-456 (1946); N.C.H. Dunbar, Military Necessity in War Crimes Trials, 1952 BRIT. Y.B. INT'L. L. 442, 442-52.

n191 ROBERT H. JACKSON, REPORT OF ROBERT H. JACKSON, UNITEDSTATES REPRESENTATIVE TO THE INTERNATIONAL CONFERENCE ON MILITARY TRIALS viii (Div. of Publications Off. of Public Affairs, U.S. Dep't. of State Publication No. 3080, 1949).

n192 See BASSIOUNI, supra note 188, at 240-62.

n193 In re List, 8 U.N. WAR CRIMES COMM'N, LAW REPORTS AND TRIALS OF WAR CRIMINALS 67 (1949). In another case, the Tribunal asserted that, "to claim that [the Hague Conventions] can be wantonly -- and at the sole discretion of any one belligerent -- disregarded when he considers his own situation to be critical, means nothing more or less than to abrogate the laws and customs of war entirely." In re Krupp, 10 UNITED NATIONS WAR CRIMES COMM'N, LAW REPORTS AND TRIALS OF WAR CRIMINALS 139 (1949).

n194 See Report of the International Law Commission: Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 5 U.N. GAOR, 5th Sess., Supp. No. 12, at 11, U.N. Doc. A/1316 (1950), reprinted in 44 AM. J. INT'L L. 126 (Supp. 1950).

n195 The Tribunal had jurisdiction over three types of war crimes: (1) "crimes against peace:" preparing, initiating and waging a war of aggression; (2) "war crimes:" violations of the laws of war (Hague law and Geneva law); and (3) "crimes against humanity:" murder, extermination, enslavement or other inhumane acts carried out against the civilian population, before or during the war. See CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL, reprinted in COLLECTION, supra note 68, at 825-31.

n196 See G. Brand, The War Crimes Trials and the Laws of War, 1949 BRIT. Y.B. INT'L L. 414, 418; ROBERT K. WOETZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 176-89 (1962).

n197 For the public at large, the Tribunal's failure to address the civilian killings by aerial bombardment and submarine warfare implies the international sanction of these acts. See Falk, supra note 184, at 759-60. Yet, many jurists argue that the this failure to prosecute certain war crimes was a matter of circumstance and should not be interpreted as condoning the conduct in question. See, e.g., Charles A. Allen, Civilian Starvation and Relief During Armed Conflict: The Modern Humanitarian Law, 19 GA. J. INT'L & COMP. L. 1, 23-28 (1989). This argument is hard to sustain, however, given the moral and legal mandate enjoyed by the Nuremberg Tribunal and the unique situation that allowed it to address the full range of violations in World War II. Moreover, this argument fails to recognize the historical pattern with which the Tribunal's concession to military necessity is entirely consistent.

n198 See O'Brien, Military Necessity, supra note 9, at 151.

n199 See Robert W. Miller, War Crimes Trials at Yokohama, 15 BROOK. L. REV. 191, 207-08 (1949); Phillips, supra note 7, at 332-33.

n200 Parks, supra note 6, at 37 (quoting TELFORD TAYLOR, FINAL REPORT TO THE SECRETARY OF THE ARMY ON THE NUREMBERG WAR CRIMES TRIALS UNDER CONTROL COUNCIL LAW NO. 10 (1949)).

n201 United States of America v. Otto Ohlendorf et al. (Case No. 9), 4 WAR CRIMES COMM'N, U.N., TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 1, 467 (1948).

n202 Recall, for instance, the attempts by international jurists to prohibit aerial warfare prior to World War I, see supra part VI.A, and the appeals made by Chamberlain and Roosevelt prior to World War II, see supra part VI.E.1.

n203 Phillips, supra note 7, at 334.

n204 Robert W. Gehring, Protection of Civilian Infrastructures, 42 LAW & CONTEMP. PROBS. 86, 99 (1978) (quoting In re List, 11 WAR CRIMES COMM'N, U.N., TRIALS

OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 759, 1253-54 (1950)).

n205 Id.

n206 Id.

n207 The Judge Advocate explained the rationale behind adopting the accused's perspective:

It is essential that you should view the situation through the eyes of the accused and look at it at the time when the events were actually occurring . . . . You must judge the question from this standpoint: whether the accused, having regard to the position in which he was and the conditions prevailing at the time, acted under the honest conviction that what he was doing was legally justifiable. Dunbar, supra note 190, at 450. By adopting a "good faith" standard rather than a "reasonable person" standard, the Tribunal established the precedent that even in the extraordinary instance when a commander faces trial for combat decisions, the prosecution must actually prove the order did not stem from an honest, albeit unreasonable, expectation of military advantage. Outside of the realm of crimes against humanity, it is difficult to conceive of a combat order that would be found criminal.

n208 In re List, 8 WAR CRIMES COMM'N, U.N., LAW REPORTS OF TRIALS OF WAR CRIMINALS 34, 35 (1949).

n209 The Tribunal acknowledged that "there is evidence in the record that there was no military necessity for this destruction and devastation . . . . But we are obliged to judge the situation as it appeared to the defendant at the time." Id. at 67-68.

n210 In re Von Leeb, 11 WAR CRIMES COMM'N, U.N., TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 563 (1950).

n211 Id. The Tribunal thus held that the order to shoot fleeing civilians was legally justified.

n212 This argument runs contrary to standard interpretations of Nuremberg's legacy, as reflected in the following comments: "It is difficult to see in the Nuremberg judgment anything but a solid net gain for world law." Phillips, supra note 7, at 334; "The Nuremberg Tribunal strengthened, rather than shattered, the principles of the laws of war by its evenhanded treatment of the violations." Allen, supra note 197, at 28. See also TOM J. FARER, THE LAWS OF WAR 25 YEARS AFTER NUREMBERG 21 (1971). The Nuremberg Trials have advanced international law, but it is important not to select as meaningful only the positive consequences. By ignoring the Tribunal's implicit sanction

of abhorrent wartime practices, the above authors contribute to the legitimation of otherwise condemnable acts.