From a David Weber post to Baen's Bar Honorverse dated July 17, 2009:

The Honorverse and Interstellar Law

    All right, someone sent me a note about a debate on the applicability of "international law" to the Honorverse and whether or not Pritchart and Theisman (or, for that matter, the entire People's Republic of Haven) [are] subject to arrest, prosecution, and punishment for violating what I suppose would be called the interstellar law of warfare. According to the person who brought this to my attention, discussion is waxing a bit warm, and it was suggested that perhaps I would share my views on this particular question with the Flies.

    I have not read the entire thread. I don't really have the time for that, but after I got the note, I dropped in and skimmed several of the posts.

    First, let me point out that in present-day terms, there is a significant difference between international law, the rules of war, and the law of war. They are three distinct and different entities.

    What follows is my interpretation of those entities. I have not researched them online, and I do not pretend to know (or, for that matter, to care) how my interpretation matches with the various "progressive" views currently being touted around the world. They are my views, based on a 40-year study of history, and I offer them because my interpretation shapes the way that these entities are approached in the Honorverse.

    International law, at least in theory, is the commonly accepted jurisprudence used by nation states to regulate their actions with one another. It is (again, at least in theory) based on evolving precedents. And it has effectiveness only inasmuch as the nation states in question choose to give it that effectiveness.

    The rules of war are pragmatic understandings – "customary usages" – which have evolved out of literally thousands of years of armed conflict. Despite what people may believe at any given moment, they are in a constant state of flux. Certain points are well established, other points are open to interpretation and change. (For example, if you go back and look at what the rules of war of, say, the 17th century had to say about the treatment of rebellious provinces or the treatment [and responsibilities] of fortress garrisons, and compare them to the rules of war which emerged in the 18th and 19th centuries out of the incredible bloodletting of Europe's 17th-century religious wars, they are quite different.) And, it should be pointed out, the underlying basis for the enforcement of the rules of war has always been reprisal. In other words, we will obey the rules of war as long as you obey the rules of war. If you violate them, we will punish you by carrying out reprisals against your personnel and your interests.

    The law of war (at least as presently understood by the internationalists among us) is a codification of the rules of war through solemn international treaties and forms what might be thought of as a "subset" of international law in general.

    Now, first, whatever some people might desire, nation states exist in an anarchic relationship with one another. They are sovereign powers. If they choose to allow their actions to be bound by international law, then their actions will be so bound. If they do not choose to allow their actions to be bound by international law, then they will not be so bound. The options of other nation states in dealing with someone who refuses to be bound by international law are to either (a) accept the "defiance" by the offender (the West has done a lot of that over the last 50 or 60 years); (b) convince the offender through diplomacy and/or other measures short of war to change its mind (the West has attempted a lot of that over the last 50 or 60 years); or (c) resort to force majeure to compel the offender to abide by "international law" (the West hasn't done a whole lot of that over the last 50 or 60 years). That's it. Those are all the options available, although there may be variations on the theme.

    Second, international law has always really said what the dominant power or coalition of powers said that it said. During the Pax Britannica, international maritime law was basically whatever the Royal Navy said it was. People might resent the hell out of it, but that didn't change the fact that in an anarchic environment, the rules which governed were the ones which were backed by effective force. And before anyone gets all upset and exercised over that, I should point out that the rules which govern in any context, whether it be the internal law of the nation or international law between nations, are those which are backed by effective force. Anyone who believes otherwise is dreaming, not to mention flying in the face of century upon century of history.

    Please note that I am not arguing that there cannot be a deep philosophical basis for international law, nor am I arguing that international law cannot be based upon long accepted precedents and a gradually, steadily evolving view of the proper – and equitable, and just – basis for relationships and interactions between nationstates. Nor am I saying that encouraging the evolution of international law and nourishing observance of it can not be extraordinarily good and worthwhile things to attempt. What I am saying is that, ultimately, effective international law is either a consensual view, or else it is that which can be effectively enforced, even upon those who do not share it, by those prepared to impose it by whatever coercive measures are required.

    In my own personal view, the belief in the efficacy and sanctity of international law presently being evinced by transnationalists is misplaced. In fact, it's as badly misplaced as that of people in 1928 who believed in the ability of Kellog-Briand Pact to outlaw war. It's not simply wrong, it's immoral, because of its misplaced faith in the ability of well-meaning consensus to govern, control and overrule human ambition. The only way something like Kellog-Briand could ever have true effectiveness would be for it to be backed by an entity which possessed both the military capability and the demonstrated will to enforce its provisions and to destroy any nationstate which disagreed. And, absent some such entity, placing one's faith in the efficacy of "international courts" becomes a betrayal of any nationstate's inherent responsibility to safeguard the security and well-being of its own citizenry.

    I would point out to anyone who disagrees with me on this observation that, to the best of my knowledge, there is not one single example of an "international law" which remained inviolable once a nationstate decided its own vital interests were at stake. I would further point out that the Nuremberg Laws were created not really in the interests of some putative international state of grace and justice but as a means whereby the victors would punish those who they perceived as they causes of the cataclysmic toll of death and destruction which had swept around the globe. I'm not saying that those responsible were not fully deserving of punishment, nor am I saying it was solely a cynical exercise in cloaking brute vengeance in fine garments. But one might want to take a look at the way the Russians voted when it came verdict time, and I would also point out that there were, on the side of the United Nations, people who had committed all of the crimes (and I'm not excluding genocidal massacres here) of which the Axis was accused.

    Before anyone jumps on me about this, I am neither a Holocaust denier, nor a Nazi apologist, nor a closet admirer of Imperial Japan, circa 1930-1945. I would simply point out that Joseph Stalin (a member in good standing of the United Nations) wasn't precisely a choir boy; that the Royal Air Force leveled Dresden in what was really a "terror raid" (however it might have been described at the time); that the United States Army Air Force was guilty of fire raids on Tokyo and other major Japanese cities which were at least as bad as the Dresden attacks; and, of course, that that same USAAF remains the only military force ever to have employed atomic weapons against civilian targets. The only reason Karl Doenitz wasn't put on trial for his life over his U-boats' submarine warfare tactics was that the United States Navy had done exactly the same thing in the [Pacific]. And we might also want to think about the fact that it was the United States Army Air Force which systematically strafed and bombed survivors in the water after sinking an entire Japanese troop convoy. The violations of "international law" (like the use of poison gas) which were refrained from were those where – you guessed it – both sides knew unacceptably painful reprisals would have resulted.

    My object here is not to say "we were just as bad as they were," because, in fact, I believe there were genuine differences – huge differences – between the two sides in World War II. My object here is to point out that, whatever international law may say, nation states do what they think they have to do when push comes to shove, and they are punished for it only when they lose, because when they win, no one is in a position to do the punishing.

    In addition to the above, I would also say that I tend to agree with Oliver Wendell Holmes' comment that "hard cases make bad law." That is, making radical changes in existing legal doctrine in an effort to address something which has slipped through a loophole or wasn't covered by existing precedent or statute is more likely to create problems than to solve them.

    I very strongly suspect that all of the "laws" against offensive war will never be more than penalties to be enforced against the defeated power after the smoke clears. "War crimes" are likely to find themselves in a similar position, with the proviso that they may very well be enforced upon citizens of relatively minor powers. They will be enforced upon the citizens of major powers only if those powers choose for them to be enforced, and no major power is likely (in my opinion) to ever choose to permit them to be enforced upon its military personnel in any situation in which it believes its truly vital interests are at risk.

    Whether that's the case or not, it's the basis for my understanding of interstellar law, the rules of war, and the law of war in the Honorverse.

    Yes, there's a commonly accepted basis of interstellar jurisprudence, which is generally honored. On the other hand, it's generally honored because those star nations with the military and nonmilitary capability to demand that it be honored have chosen to do so. The Solarian League and the Star Kingdom of Manticore, for example, despite all of the tension and friction between them over the size and the reach of the Manticoran merchant marine, have generally agreed that abiding by interstellar law in their dealings with one another is in the interests of both. And when the League and the Star Kingdom are in agreement with one another, no one else really has the ability to tell them no. So there is a surface consensus, backed by the joint power of the League and the Star Kingdom, which is generally adhered to (and which is violated whenever it suits the convenience of a star nation which figures it can get away with it unobserved). It should also be noted that "illegal" trades (like the interstellar genetic slave trade) flourish except where specifically interdicted – usually by force of arms – by someone with both the will and the capacity to do so. And it should also be noted that the Cherwell Convention, which is the primary basis for anti-slavery enforcement, consists not of an appeal to any omnipresent interstellar law code but a multilateral treaty between the enforcing powers. (A multilateral treaty, it should be noted, many of whose signatories signed on only after significant coercion – up to and, in some cases including, the actual application of outright military force.)

    There are also commonly accepted rules of war. For example, one is expected to accept surrenders, and the intentional striking of a warship's wedge is universally regarded as indicating surrender. For another example, a planet is expected to surrender once a hostile fleet controls the space around it, rather than holding out and requiring a bloody assault which will increase casualties for both sides.

    And there are specific "laws" of war in the form of formal interstellar agreements which are (at least in theory) "legally binding" upon their signatories. In this case, for example, the Deneb Accords, which specify, among other things, how prisoners of war are to be treated, and which are generally observed (at least by "civilized" star nations) because, first and foremost, doing so will lead to their own POWs being so treated by their adversaries, and, secondly, because they are "civilized" and believe that certain minimal standards of decency are a hallmark of being civilized.

    The bottom line, however, for both the rules of war and the laws of war remains that they are enforceable only by the threat of reprisals.

    Now, there's been some discussion of the Eridani Edict as an element of interstellar law. That is an incorrect interpretation of what the Eridani Edict is. The Edict represents a unilateral declaration by the Solarian League of what it will do to anyone who violates the Edict's provisions. It's never been cited as a "law." In fact, in some ways, it could be taken as the very antithesis of interstellar law as a consensual body of agreements, because the League has, in effect, said that it doesn't care what anyone else thinks about this specific point. The Solarian League Navy is the galaxy's 800-kilo gorilla, and it will rip the head off of anyone who violates the Edict. That's it, end of discussion, end of debate. And, if you will note, in effect the Edict depends not upon any appeal to the sanctity of interstellar law but rather upon the raw, brute power of reprisal. "If you carry out an attack prohibited by the Eridani Edict, we will destroy you."

    Honorverse interstellar law does govern the standards of interstellar diplomacy, among other things. It governs the sanctity of embassies and of diplomatic personnel's persons. It governs the sanctity of privileged communications between governments and their diplomats. It governs the procedures for the exchange of formal diplomatic notes and communication.

    And it is routinely violated. Embassies and diplomatic personnel are generally secure from search and seizure, as interstellar law requires, but only because everyone knows that whatever they might do to someone else's embassy or ambassadors could then be done to their own. Espionage is a clear-cut violation of interstellar law, just as it is a violation of present-day international law; it happens in the Honorverse anyway, just as it happens today.

    The quaint provisions of Old Earth's pre-space international law are no more binding on interstellar law two thousand years later than Hammurabi's Code is binding on federal law in the United States today. Pieces of it continue to resonate, to form the basis of many of the Honorverse's principles of interstellar law, but they have been very heavily modified by the passage of millennia. One of the casualties of that passing time has been the notion of "crimes against the peace." In the Honorverse, war is recognized as something which, by its very nature, stands outside the peacetime consensus which forms the basis of "interstellar law." Combatants are expected to abide by the rules of war and, where applicable, by the law of war, but it is recognized even there that the only real enforcement mechanism is reprisal… which is why reprisal is specifically authorized by and enshrined in both the rules of war and the law of war. Obviously, no one is required to resort to reprisal if they choose not to (and, specifically, if they believe that doing so would violate their own moral standards), but the raw, ugly truth that reprisal is the only effective means of influencing the other side's behavior is clearly recognized.

    In the specific case of Eloise Pritchart and Thomas Theisman and whether or not they are guilty of "war crimes," "crimes against the peace," or "crimes against humanity," the answer is no.

    First, a state of war existed between the Republic of Haven and the Star Kingdom of Manticore well before any time that Pritchart and Theisman could have been held responsible for its coming into existence in the first place. Second, Pritchart and Theisman did precisely what they were required to do under the terms of the cease-fire between the Star Kingdom and the Republic. In fact, they did substantially more than they were required to do by holding open elections; punishing those guilty of atrocities against Alliance personnel, where guilt could be established; negotiating in good faith with the Star Kingdom; and simultaneously allowing star nations which had been conquered by force of arms by the People's Republic to resume their independence. Third, neither Pritchart nor Theisman unilaterally resumed hostilities against the Star Kingdom; they did so only after Pritchart had requested – and received – the overwhelming support of Congress to resume operations. Fourth, while it could certainly be argued that the Republic launched operations "under cover of a truce," operations had never been specifically renounced under the truce and the basis for the resumption of operations was the Star Kingdom's cynical refusal to negotiate in good faith and the forged modification of the Republic's diplomatic correspondence as part of that "bad faith" negotiation. (And, yes, I'm fully aware that it wasn't Manticore that did the forging. The point here is the knowledge which Pritchart and Theisman, and especially Pritchart, possessed at the time they actually made the decision.)

    The Star Kingdom of Manticore is furious at the Republic of Haven for the "surprise attack" with which Haven resumed active military operations. At no point in the books, however, I believe, will you have seen any Manticoran who accused Haven of "violating interstellar law" in launching that attack. It's seen as treacherous, deceptive, and probably the combination of long-term cynical planning (given that the Star Kingdom thinks it was the Republic which forged the correspondence to justify resuming operations), but no one's ever accused it of being "illegal." Should the Republic be forced to surrender to the Star Kingdom, the Star Kingdom will be totally justified – legally – in whatever terms it chooses to demand as the price of allowing the Republic surrender. Under those circumstances, acknowledgment of war guilt and reparations could very well be in order, and the Star Kingdom might very well also demand the resignation and/or removal from office of anyone in a decision-making position at the time the Republic decided to go back to war. In fact, it could demand a completely new constitution, much as the United Nations demanded of Germany and Japan following World War II. Whatever demands it chooses to make, however, would not be based on an assumption of guilt for legal violations but rather upon the power of the victor to impose terms upon the vanquished.