Modern war is law pursued by other means. Once a bit player in military conflict, law now shapes the institutional, logistical, and physical landscape of war.
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In Of War and Law , David Kennedy examines this important development, retelling the history of modern war and statecraft as a tale of the changing role of law and the dramatic growth of law's power.
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Not only a restraint and an ethical yardstick, law can also be a weapon--a strategic partner, a force multiplier, and an excuse for terrifying violence. Kennedy focuses on what can go wrong when humanitarian and military planners speak the same legal language--wrong for humanitarianism, and wrong for warfare. He argues that law has beaten ploughshares into swords while encouraging the bureaucratization of strategy and leadership.
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A culture of rules has eroded the experience of personal decision-making and responsibility among soldiers and statesmen alike. Kennedy urges those inside and outside the military who wish to reduce the ferocity of battle to understand the new roles--and the limits--of law.
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Only then will we be able to revitalize our responsibility for war. Armed conflict is as old as humankind itself. There have always been customary practices in war, but only in the last years have States made international rules to limit the effects of armed conflict for humanitarian reasons. The Geneva Conventions and the Hague Conventions are the main examples. Usually called international humanitarian law IHL , it is also known as the law of war or the law of armed conflict.
International humanitarian law is part of the body of international law that governs relations between States. IHL aims to limit the effects of armed conflicts for humanitarian reasons. It aims to protect persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities. Because it is law, IHL imposes obligations on those engaged in armed conflict. Not only must they respect the law, they have an obligation to ensure respect as well.
It is not acceptable to turn a blind eye. The first was signed by 16 countries in For centuries before then, rules had applied to the conduct of war, but they were based on custom and tradition, were local or just temporary. The initiative for the first convention came from five citizens of Geneva.
Law of war
The law of war is a legal term of art which refers to the aspect of public international law concerning acceptable justifications to engage in war jus ad bellum and the limits to acceptable wartime conduct jus in bello or international humanitarian law. Among other issues, modern laws of war address declarations of war , acceptance of surrender and the treatment of prisoners of war ; military necessity , along with distinction and proportionality ; and the prohibition of certain weapons that may cause unnecessary suffering.
The law of war is considered distinct from other bodies of law—such as the domestic law of a particular belligerent to a conflict—which may provide additional legal limits to the conduct or justification of war. Attempts to define and regulate the conduct of individuals, nations, and other agents in war and to mitigate the worst effects of war have a long history.
The earliest known instances are found in the Mahabharata and the Old Testament Torah. In the Indian subcontinent, the Mahabharata describes a discussion between ruling brothers concerning what constitutes acceptable behavior on a battlefield, an early example of the rule of proportionality:.
One should not attack chariots with cavalry; chariot warriors should attack chariots. One should not assail someone in distress, neither to scare him nor to defeat him War should be waged for the sake of conquest; one should not be enraged toward an enemy who is not trying to kill him. An example from the Deuteronomy You may eat from them, but you shall not cut them down.
Are the trees in the field human, that they should be besieged by you? In the early 7th century, the first Caliph , Abu Bakr , whilst instructing his Muslim army , laid down the following rules concerning warfare:.
Of War and Law
Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food.
You are likely to pass by people who have devoted their lives to monastic services; leave them alone. Furthermore, Sura Al-Baqara 2: In the history of the early Christian church, many Christian writers considered that Christians could not be soldiers or fight wars. Augustine of Hippo contradicted this and wrote about ' just war ' doctrine, in which he explained the circumstances when war could or could not be morally justified. In , Adomnan of Iona gathered Kings and church leaders from around Ireland and Scotland to Birr , where he gave them the ' Law of the Innocents ' which banned killing of women and children in war, as well as banning the destruction of churches.
In medieval Europe , the Roman Catholic Church also began promulgating teachings on just war , reflected to some extent in movements such as the Peace and Truce of God. The impulse to restrict the extent of warfare, and especially protect the lives and property of non-combatants continued with Hugo Grotius and his attempts to write laws of war.
War and international humanitarian law
One of the grievances enumerated in the American Declaration of Independence was that King George III "has endeavoured to bring on the inhabitants of our frontiers the merciless Indian Savages whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions". The modern law of war is made up from three principal sources: Positive international humanitarian law consists of treaties international agreements which directly affect the laws of war by binding consenting nations and achieving widespread consent.
The opposite of positive laws of war is customary laws of war, [1] many of which were explored at the Nuremberg War Trials. These laws define both the permissive rights of states as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. In addition, the Nuremberg War Trial judgment on "The Law Relating to War Crimes and Crimes Against Humanity" [13] held, under the guidelines Nuremberg Principles , that treaties like the Hague Convention of , having been widely accepted by "all civilised nations" for about half a century, were by then part of the customary laws of war and binding on all parties whether the party was a signatory to the specific treaty or not.
Interpretations of international humanitarian law change over time and this also affects the laws of war. For example, Carla Del Ponte , the chief prosecutor for the International Criminal Tribunal for the former Yugoslavia pointed out in that although there is no specific treaty ban on the use of depleted uranium projectiles, there is a developing scientific debate and concern expressed regarding the effect of the use of such projectiles and it is possible that, in future, there may be a consensus view in international legal circles that use of such projectiles violates general principles of the law applicable to use of weapons in armed conflict.