Sparing the life of prisoners of war became a rule around which much of international humanitarian law was built. The law of war's other great pillar was the distinction between warriors and civilians. In his great book of 1625, Grotius insisted that war could be fought cleanly, and signalled an age of steadily increasing restraint and humanity in war: it was, as Geoffrey Best puts it, "one of civilisation's greater achievements".
Yet, however admirable the idea of restraint in war, the means of imposing it have been deeply flawed. The increasing protection of prisoners of war, from the minimal right to life, through the 1929 Geneva Convention to the impressive 143 articles of the 1949 Geneva Convention may have been a success story, but it is not typical. Professor Best's hefty study of international humanitarian law since 1945 is almost a rueful recantation of the optimism of his fine book Humanity in Warfare, written 15 years ago.
There he accentuated the positive; now he sees more of the negative side. Continuous growth in legal prohibitions has not reduced illegal behaviour. In fact, as Best's close account of the Geneva Conventions shows, international humanitarian law is not really law at all, but a disparate body of extremely uneven principles, treaties, customary rules and practices. The bottom line is, he glumly notes, that an international criminal court remains an idealist's chimera.
The core of the problem is the immense difficulty of maintaining the vital boundary between combatants and non-combatants. The effort clashes with powerful tendencies in the modern world. The French revolution engendered guerre outrance, "total war" in which the entire civil population is mobilised to support vast armies raised by conscription. Democracy and nationalism both fuelled this process, which reached its climax in our century. In total war, whole societies believe they are struggling for survival against other whole societies. In such extremity it is impossible to see civilians as innocent bystanders.
As ideology eviscerated the will to protect civilians, technology provided the means to assault them directly. It was never easy to specify military limits or to define legitimate targets, but modern weapons have made it more difficult. Air warfare has done enormous damage to the law of war, making it possible to strike not only at the enemy's economic base, but at their collective will to fight. The principle of minimising "collateral damage" became practically meaningless in the blanket bombing of whole cities.
Conventional war has been bad enough, but the growth of unconventional war since 1945 has done still more damage to the prospect of protecting civilians. Guerrilla warfare exploits the immunity of civilians to shield insurgent fighters from stronger government forces. Terrorism deliberately sets out to provoke reprisals which will turn the people against the government. Governments have responded with every kind of human rights abuse, from imprisonment without trial through torture to genocide. International law, being understood to apply only to inter-state relations, had nothing to say about all this until the frankly political, third-world-led movement of the mid-1970s to guarantee belligerent rights to national liberation movements.
The outcome of three years of negotiation, the two Geneva Additional Protocols of 1977 are at the heart of Best's book. The acid test of international conventions is whether they can impel states to act against their own interests. Is it really possible to imagine that a regime fighting for life against armed rebels will voluntarily restrict its actions, and concede the political recognition implicit in the guarantee of belligerent rights? Given that, as Best shows, the notion of neutral "Protecting Powers" interposing themselves in such internal wars is little more than a legal fantasy, the world is left with only the International Committee of the Red Cross as a body actually prepared to intervene.
The recent history of humanitarian intervention can only confirm Professor Best's gloomy forebodings. Ethnic or communal wars like those in Lebanon and Bosnia combine all the atrocious qualities of modern conventional and unconventional war. The militias which fight them are people's armies in the most radical sense, and there seems no limit to what they will do to destroy their enemies. To call such warfare barbaric is misleading: it is absolutely modern. At its root is the 19th-century idea of self- determination, which now justifies any group with a strong enough sense of identity in claiming statehood. Progressive thinkers in that century believed war would soon be a thing of the past. International law was a harbinger of a new world order. Standing at the end of the 20th century, however, it seems more likely that it is not war but international law which will be consigned to the dustheap of history.Reuse content