War and Peace and 'lawfare'

War is not a polite recreation but the vilest thing in life, Tolstoy’s doomed hero Prince Andrei declaims on the eve of the battle of Borodino. (If you’re watching the TV serial, sorry for the spoiler.) ‘They talk of the rules of war, of chivalry, or flags of truce, of mercy to the unfortunate – it’s all rubbish.’

Andrei concludes that, rather than ‘playing at magnanimity’, armies should abandon conventions like taking prisoners: ‘Then we should go to war only when it was worthwhile going to certain death.’

I’m not sure that many soldiers of 1812 saw war as a polite recreation. At Borodino, nearly a quarter of a million men fought toe-to-toe for 10 hours; one-third became casualties. Even Napoleon flinched at the sight of the wounded.

And that was still in the craft era of warfare. When the industrial era arrived in the course of the 19^th century, two rival philosophies emerged to mitigate its even greater horrors.

One, paradoxically, was to create weapons so efficient that war would become unthinkable. Let’s call this the Prince Andrei approach. Inventors from Hiram Maxim onwards invariably maintained that by delivering certain death on an industrial scale, they were contributing to peace. The philosophy survives today, of course, in the theory of nuclear deterrence. 

The rival philosophy was to make magnanimity the norm, through an emerging law of armed conflict codified in the Hague and Geneva conventions. I’m sure most Gazette readers would incline to this approach. Even a century ago, at the height of a world war, lawyers were standing up for decency in the face of the first Zeppelin attacks on civilians. ‘For a civilised nation there can be no reprisals which do not respect the laws of humanity and morality,’ the Solicitors Journal cautioned the government in February 1916. 

Respect for conventions has practical benefits as well as ethical ones. Big battles are usually won when armies surrender, and soldiers are more likely to do that if they think they will survive. Even Hitler’s Wehrmacht (most of the time) accepted the surrenders of British and American opponents, and (most of the time) fed those prisoners. Ex-PoWs were very much part of my youth. Those who had been held by the Germans, like my one-time colleague Michael, would sometimes talk about it, though not with any fondness for ‘the krauts’. Those who had been held by the Japanese, like my stepfather, did not. 

Understandably, the high point of codification was reached after that war, in the Geneva Convention of 1949. But already by then the norms were changing, to an asymmetrical pattern of conflict that is with us today. Asymmetry is bad news for magnanimity or legal conventions. Soldiers of the second world war were spared chemical weapons mainly because both sides knew the enemy would respond in kind.

When both sides have widely different arsenals at their disposal, tacit agreements tend to go out of the window. In 1977, Protocol 1 of the Geneva Convention attempted to bring asymmetrical warfare into the fold by granting combatant status to guerrilla forces when under the command of a central authority. 

But again, this has value only when both sides obey the rules. As William Shawcross points out in his book Justice and the Enemy, a crucial moral and legal point to offering rights to combatants who follow the rules of law is that they must be denied to those who defy them. The purpose is to protect civilians by giving fighters a positive incentive not to hide among them. The snag is that, if only one side obeys the rules, the rules themselves become a weapon for the opposition. The phenomenon is called lawfare, and I suspect we are going to hear a lot more about it. 

A taster can be found in a report into the 2014 Gaza conflict by 10 named senior military officers from Europe, the Americas, India and Australia. As it is published by the Friends of Israel Initiative it will no doubt be widely dismissed as a campaign move in itself, but it should be mandatory reading on the subject of what happens when a party declaring adherence to the laws of armed conflict takes on an adversary that deliberately flouts them. 

Contrary to media coverage at the time, the report finds that in 2014 Israeli forces not only met their obligations under the law of armed conflict but exceeded them. ‘In many cases where the fighting was concerned, this came at significant tactical cost.’ They express fears that if some Israeli tactics, such as 'knock on the roof warnings' before a target is hit become international norms, their own military activities might be compromised. Hamas by contrast ‘not only flagrantly disregarded the law of armed conflict as a matter of course... but rather it abused the very protections afforded by the law for military advantage’.

I’ve spent too long in the Middle East to expect the report to change anyone’s mind about the Gaza conflict. But its conclusion has wider implications. I can't help but think of the RAF Tornado crews currently expected to adhere to laws of armed conflict against an enemy that has very publicly made clear that it will not. In another conclusion pertinent to the UK, the senior officers' group says it is ‘concerned by the propagation of misapplied legal concepts in conjunction with narratives that are geared towards political outcomes... Such propagation poses a serious risk to the law of armed conflict and thus ultimately to the minimisation of harm caused through warfare.’

In other words, the more that lawfare is deployed against the one side that takes the law seriously, the more our hard-won legal conventions of war will be discredited. 

Faced with this prospect, would it not be more realistic to come to Prince Andrei’s conclusion?

I have no experience of war apart from as a journalist, which is to say as a tourist able to get out when the squalor, tedium or tension got too much. But Tolstoy knew the real thing as a young officer in the Crimea; his description of Prince Andrei’s gut being torn open by a shell splinter has the smack of realism. As do his hero’s words: ‘The aim of war is murder, the methods of war are spying, treachery and the ruin of a country’s inhabitants.’

The laws of armed conflict, if such things can exist, must recognise that.

Michael Cross is Gazette news editor