Books and reviews:Reflections on Law and Armed ConflictsThe Selected Works on the Laws of War by the late Professor Colonel G.I.A.D. Draper, OBE
30-06-1999 Article, International Review of the Red Cross, No. 834, by Michael Bothe
Michael A. Meyer and Hilaire McCoubrey (eds)
Reflections on Law and Armed Conflicts.
The Selected Works on the Laws of War by the late Professor Colonel G.I.A.D. Draper, OBE
Kluwer Law International, The Hague/Boston/London, 1998, XXX + 288 pages
This is a book devoted to an unforgettable man, his thought and the cause he defended: the protection of the individual in times of armed conflict. For those who knew Gerald Draper personally, it requires no justification. Reading him, and reading about him, we are flooded by memories and recollections. All those who met him were deeply impressed by the man and have stories about him which they never tire of telling; people were struck as much by the manner in which he said things as by what he had to say. In short, Gerald Draper was inseparable from his ideas, and for those who did not have the privilege of knowing him it is the great merit of the editors to have presented both the man we revered and his message.
Since there would be little point in attempting to summarize such a book, I would simply like to whet the reader’s appetite.
History matters very much in international relations, sometimes too much. Many of Draper’s writings are about history, the history of legal constraints in warfare. The first item in this collection explains how Christianity inherited the old Roman doctrine of just and pious war after the emperor Constantine converted to the Christian faith and granted it official recognition in 313 AD (pp. 5 ff). By the same token it helps us to understand the predicament in which Christians of all denominations find themselves in wartime when they are ordered to kill.
Although deeply Christian himself, Gerald Draper was very curious about humanitarian thought in other religious traditions, and for
anyone interested in the question of Buddhism and humanitarian law “The contribution of the Emperor Asoka Maurya to the development of the humanitarian ideal in warfare” (pp. 37 ff) is recommended reading. A historian of international law must of course discuss Grotius, his theories on just war and what he called the temperamenta belli , or restraints on warfare (pp. 48 ff). Although current international law is fortunately more ambitious in this respect than Grotius was, Draper stresses the positive impact which Grotius had by establishing that international relations were subject to the rule of law, especially in the extreme situation of war.
A number of items are concerned with the development of international humanitarian law after the adoption of the Geneva Conventions, especially in the sixties and seventies. Draper was a sceptical and critical observer and participant in this process. The doubts he raised about the realism of the emerging law of weapons restraint were quite justified at the time (pp. 63 ff). Indeed, it was impossible to foresee to what extent the rules that were being drafted in the seventies would be relied on by the International Court of Justice in giving its advisory opinion that the use of nuclear weapons is prohibited (the only issue that remains controversial being the in extremis exception).
Gerald Draper was a realist who knew that it was not enough to make good laws: they had to be implemented. A large part of his writings is devoted to this question. For example, he put a certain emphasis on criminal responsibility at a time when one could wonder whether the Nuremberg and Tokyo precedents had fallen into oblivion, which, as we now know, is no longer the case. However, Draper stressed that criminal responsibility was not the only means of ensuring the application of international humanitarian law. As early as 1966 he called for the introduction of a reporting system for national measures implementing humanitarian law (p. 112 ff), something which is still on the agenda of the Red Cross and the States parties to the Geneva Conventions and their Additional Protocols. He also stressed the role of education and military manuals, a subject to which the most recent item in the book is devoted (1988, pp. 115 ff.).
I do not agree with Draper’s critical and sometimes devastating remarks on the relationship between humanitarian law and human rights (pp. 125 ff), which are to a certain extent contradictory. It is true that at the time when they were made, the process of revising international humanitarian law was accompanied by a great deal of human rights verbiage. But with the wisdom of hindsight, it must be said that the human rights impetus proved useful.
Draper’s comments on world events are also to be recommended. These include his positive appraisal of the two Israeli judgements in the Eichmann case (pp. 174 ff), an article on the repatriation of Russian nationals at the end of the Second World War which strongly criticizes the position of the British government of that time (pp. 255 ff), and, last but not least, his legal analysis of the terrible massacre that occurred in the B eirut Palestinian refugee camps in 1982 (Draper concludes that the international legal responsibility of Israel is engaged, pp. 269 ff).
The book makes useful and challenging reading. For the record, its basic message is that the rule of law can and must be maintained to ensure that people are afforded protection even in the extreme situation of armed conflict.
Professor of Law
Johann Wolfgang Goethe University