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Future International Laws of War

Published online by Cambridge University Press:  12 April 2017

W. L. Rodgers
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Extract

Undoubtedly the generally recognized rules governing the exertion of military force at any given period are the outcome of social and economic conditions as well as of the development of new modes of attack upon life and property. Yet many believe that new forms of the exertion of military strength may be restrained by international agreement made in time of peace and in the name of humanity. Although such agreements have been made in the past, such as the Hague agreements of 1899 and 1907, not all have been viable. It is doubtful if effective ways of striking down the enemy will be limited by the bare plea of “humanity”. Restraint on the exercise of belligerent force for the sole reason that the sufferings of war are great and cruel is instinctive but not logical, for war is death and injury of persons and destruction of property by which the enemy is forced to submit. As to this matter Oppenheim says in his International Law:

… First is the principle that a belligerent should be justified in applying any amount and any kind of force which is necessary for the realization of the purpose of the war—namely, the overpowering of the opponent. Secondly, the principle of humanity is at work, which says that all such kinds and degrees of violence as are not necessary for the overpowering of the enemy should not be permitted to the belligerent.

Type
Research Article
Information
American Journal of International Law , Volume 33 , Issue 3 , July 1939 , pp. 441 - 451
Copyright
Copyright © American Society of International Law 1939

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References

1 Edition of 1906, Vol. II, p. 75.

2 Moore’s Digest of International Law, Vol. 5, p. 340.

3 Memoirs of the Peace Conference, Vol. II, p. 908.

4 Ibid., p. 910.

5 Recent American legislation affecting gold bonds does not support the doctrine that a state is a moral person.

6 See Hall’s International Law, 6th ed., p. 669, quoting the belief of Justice Nelson of the United States Supreme Court as to the influence of public opinion on the decisions of the court in 1863-1864.

7 Reported in this Journal, Vol. 32 (1938), p. 824 Google ScholarPubMed.

8 I believe, but am not sure, that in the American Civil War even medical supplies did not have free passage across the lines.

9 Lives lost in neutral craft were much fewer, but I have been unable to find a reliable statement in full.