Review of War Law: Understanding International Law and Armed Conflict. Michael Byers. Grove Press: New York, N.Y., 2005. PP. 214. $24.00 (cloth)
In War Law: Understanding International Law and Armed Conflict, Michael Byers provides a timely critique of international policy regarding the terms and practices of war. Byers’s commentary is important as an impetus to evaluate decisions by this current and numerous former U.S. administrations to act outside of written and unwritten customary international law for political purposes, and the implications such actions have for the future of international law. From Byers’s depiction of the informal and formal development of international war law the very important point emerges that, although not always followed to the letter, international law does matter, which partially undermines his acute fear of what may result from the United States’ abuse of its position as the world’s only superpower. Although Byers overstates the future perils implied by the United States’ efforts to manipulate international law, he provides a necessary voice in what should be an ongoing and vigorous international debate over the line international leaders should tread within the global theater.
Byers contextualizes his argument by outlining the development of international norms of jus ad bellum, or law of war, and jus in bello, or how wars should be fought. The development of an international legal regime governing armed conflict other than natural law or positivism is relatively new in international law; previously, conquest was common, and the only unwritten rule of international war law was a right to act in self-defense without provoking all-out war. The advent of the U.N. Charter in 1945 marked the beginning of a new global order. The Charter prohibits the use of force across borders with two exceptions: self-defense and Security Council authorization. Byers addresses the two big questions surrounding the modern conception of the self-defense exception: (1) whether it allows use of force against terrorists within the territory of another sovereign, and (2) whether the exception encompasses pre-emptive action, or “the Bush Doctrine.” He also traces the history of two additional exceptions that may have developed over the last half-century: (1) the right to intervene militarily to promote or restore democracy, and (2) the right of unilateral humanitarian intervention. He analyzes these potential developments in the international law of war against the backdrop of the ongoing international struggle between politics and the rule of law; in this international arena, powerful countries strategically shape international law, exploiting gaps and ambiguities, while limited by international reactions and a mutual need for some semblance of international order. Byers denounces any expansion of the self-defense exception as dangerous and rejects the existence of an international consensus over the latter two exceptions sufficient to warrant their passing into customary international law. Finally, Byers addresses past and recent violations of jus in bello, including increased alteration of the balance between military necessity and harm to civilians, U.S. treatment of combatants in the Afghanistan and Iraq Wars, and the use of war crimes courts and tribunals. He concludes by severely reprimanding the United States for continually disregarding international law and delegates responsibility to the United States for improving the state of the world as a consequence of being the only superpower. This critique explains Byers’s observations regarding pre-emption, pro-democratic and humanitarian intervention, and humanitarian norms independently, attempts to analyze his underlying theories within the context of competing theories, and concludes by questioning whether an international legal regime for war law that is dominated by political interactions and a global imbalance of power is necessarily a bad thing…
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