The Chaotic Status of the Laws of War and the Urgent Necessity for Their Revision

1951 ◽  
Vol 45 (1) ◽  
pp. 37-61 ◽  
Author(s):  
Josef L. Kunz
Keyword(s):  
International Law ◽  
Wishful Thinking ◽  
Laws Of War ◽  
Total War ◽  
International Lawyer ◽  
Dark Ages ◽  
Full Picture ◽  
The Law ◽  
Urgent Necessity

Once more, as he did sixteen years ago, this writer wants to raise his voice in order to point at the actual chaotic status of the laws of war, at the grave inherent dangers, and at the urgent necessity for the revision of this part of international law. The problem involves the very survival of our Western Christian civilization, if not of mankind. Under these circumstances it becomes the duty of an international lawyer to treat this subject, notwithstanding its “unpopularity” since 1920. It was Grotius who, under the impression of the “total war” of thirty years urged upon men the necessity of the “temperamenta belli.” It is amazing to see that the men of this generation, living under a more terrible total war, turn their backs upon the laws of war. This neglect is the outcome of different and often contradictory ideologies: indifference, apathy, over-optimistic wishful thinking, political wishes to keep one’s hands free in the next war, and pessimistic fatalism. All the arguments for this neglect are untenable, are in contradiction with the law as well as the facts; and yet, strong drives by writers and statesmen have nearly succeeded in putting over men a veil of voluntary blindness in adopting a policy of the ostrich which may lead to disaster, to the return of new and more terrible “dark ages.” A full exposé would need a book, not an article. But while no full picture can be given here, it will be attempted to give, at least, a complete sketch, dealing with the law and the facts, with the arguments pro and con.

scholarly journals The Phoenix of Colonial War: Race, the Laws of War, and the ‘Horror on the Rhine’

2017 ◽  
Vol 30 (4) ◽  
pp. 847-875 ◽  
Author(s):  
ROTEM GILADI
Keyword(s):  
International Law ◽  
Recent Literature ◽  
League Of Nations ◽  
Laws Of War ◽  
Black Soldiers ◽  
French Colonial ◽  
The Law ◽  
The Moment ◽  
Imperial Governance ◽  
The Phoenix

AbstractThe article explores the demise of the ‘colonial war’ category through the employment of French colonial troops, under the 1918 armistice, to occupy the German Rhineland.It traces the prevalence of – and the anxieties underpinning –antebellumdoctrine on using ‘Barbarous Forces’ in ‘European’ war. It then records the silence ofpostbellumscholars on the ‘horror on the Rhine’ – orchestrated allegations of rape framed in racialized terms of humanity and the requirements of the law of civilized warfare. Among possible explanations for this silence, the article follows recent literature that considers this scandal as the embodiment of crises in masculinity, white domination, and European civilization.These crises, like the scandal itself, expressedantebellumjurisprudential anxieties about the capacity – and implications – of black soldiers being ‘drilled white’. They also deprivedpostbellumlawyers of the vocabulary necessary to address what they signified: breakdown of the laws of war; evident, self-inflicted European barbarity; and the collapse of international law itself, embodied by the VersaillesDiktattreating Germany – as Smuts warned, ‘as we would not treat akaffirnation’ – as a colonial ‘object’, as Schmitt lamented.Last, the article traces the resurgence of ‘colonial war’. It reveals how, at the moment of collapse, in the very instrument embodying it, the category found a new life. Article 22(5) of the League of Nations Covenant (the Covenant) reasserted control over the colonial object, furnishing international lawyers with a new vocabulary to address the employment of colonial troops – yet, now, as part of the ‘law of peace’. Reclassified, both rule and category re-emerged, were codified, and institutionalized imperial governance.

Underground Warfare and the Jus in Bello

2018 ◽  
Author(s):  
Daphné Richemond-Barak
Keyword(s):  
Conceptual Framework ◽  
International Law ◽  
Legal Status ◽  
Legal Framework ◽  
Laws Of War ◽  
Underground Structures ◽  
Jus In Bello ◽  
Broad Array ◽  
The Law

This chapter focuses on the laws of war, a legal framework applicable to a broad array of war-time tunnel-related issues, including their legal status, the type of weapons that may be used inside tunnels, and precautions that must be taken vis-à-vis civilians during anti-tunnel operations. This chapter argues that the law does not prohibit the use of tunnels and other underground structures in times of war. Underground warfare—in any of its many forms—does not amount to perfidy, which would have made it illegal under international law. Tunnels, however, often amount to military objectives and, as such, must be kept separate from civilians and civilian infrastructure. Ultimately this chapter demonstrates that, despite the law’s silence, underground warfare does raise unique issues under IHL. It also offers a conceptual framework for analyzing tunnels and assessing the legality of anti-tunnel operations in war.

The Taking of Hostages in Theory and Practice

1944 ◽  
Vol 38 (1) ◽  
pp. 20-33 ◽  
Author(s):  
Ellen Hammer ◽  
Marina Salvin
Keyword(s):  
International Law ◽  
Theory And Practice ◽  
Total War ◽  
Legal Foundation ◽  
The Law

The current war has been marked by a drastic extension of the practice of taking hostages. Ever since antiquity such action has constituted a permissible expedient, as frequent in peacetime as during war. Only recently, however, has it become a major weapon of warfare. The contemporary experience of total war necessitates a revaluation of the law and practice in regard to hostages. German actions in this war have involved such marked disregard of international law as to bring into question the entire legal foundation of the taking of hostages.

Interstitial rules and the contested application of human rights law and the laws of war in counterterrorism

2016 ◽  
Vol 5 (2) ◽  
pp. 207-237 ◽  
Author(s):  
MICHAEL E. NEWELL
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
International Law ◽  
War On Terror ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Laws Of War ◽  
Legal Norms ◽  
Drone Strikes ◽  
The Law

Abstract:The laws of war and international human rights law (IHRL) overlap, often with competing obligations. When two or more areas of the law overlap, political agents attempt to address these areas of ambiguity with interstitial rules. However, a lack of consensus on interstitial rules can destabilise the law, leading to increased contestation of legal norms and principles. Such is the case for international law in counterterrorism. Prior to the 11 September 2001 attacks (9/11), international agreements and US domestic practices placed counterterrorism within the framework of law enforcement. After 9/11, the Bush Administration replaced law enforcement with armed conflict and the laws of war as the dominant paradigm for counterterrorism, but this decision, among other legal justifications in the War on Terror, has been contested by the international legal community. As IHRL still applies in law enforcement operations, international law in counterterrorism now sits within a contested overlap of IHRL and the laws of war. The contestation of US policies in the War on Terror, including the use of drone strikes in particular, is a product of this unresolved overlap and the lack of clear interstitial rules. Lacking these rules, US counterterrorism policies risk undermining the rule of law.

Belligerent Aircraft, Neutral Trade, and Unpreparedness

1935 ◽  
Vol 29 (2) ◽  
pp. 197-205
Author(s):  
Charles Warren
Keyword(s):  
International Law ◽  
International Agreements ◽  
Long Distance ◽  
International Lawyer ◽  
The Gift ◽  
The Law ◽  
The Times ◽  
Naval Officers ◽  
Industrial Economic

While a duty of preparedness for war is constantly urged upon American statesmen and upon military and naval officers, the fact is too often overlooked that there is also a duty of preparedness resting upon American statesmen, jurists, and legal authors to keep abreast of the times, or even in advance of the times, in connection with rights and duties affected by war. A prominent international lawyer has written that “as the flag of a nation follows the territorial explorations of its subjects, jurisprudence follows the path of science.” This broad statement must be qualified by the admission that jurisprudence only follows at a very long distance. Too rarely do statesmen and lawyers try to visualize changing industrial, economic, social, and governmental conditions, and to promote, in advance, needful corresponding changes in the law. Especially in connection with international law and international agreements is the gift of imagination lacking, the possession of which is necessary in order to attain preparedness in any field.

Carl Schmitt's Vattel and the 'Law of Nations' between Enlightenment and Revolution

Grotiana ◽  
2010 ◽  
Vol 31 (1) ◽  
pp. 141-164 ◽  
Author(s):  
Isaac Nakhimovsky
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
French Revolution ◽  
Just War Theory ◽  
Total War ◽  
Late Eighteenth Century ◽  
Law Of Nations ◽  
Late Eighteenth ◽  
The Law ◽  
History Of International Law

AbstractThis article questions the status of Vattel's Law of Nations as an exemplary illustration of eighteenth-century developments in the history of international law. Recent discussions of the relation between eighteenth-century thinking about the law of nations and the French Revolution have revived Carl Schmitt's contention about the nexus between just war theory and the emergence of total war. This evaluative framework has been used to identify Vattel as a moral critic of absolutism who helped undermine the barriers against total war, as well as an architect and defender of those very barriers. Neither of these opposing readings is corroborated by late-eighteenth-century commentators on Vattel's treatise. To its late-eighteenth-century critics and defenders alike, Vattel's Law of Nations was distinguished by the weakness of its derivation of the law of nations from principles of natural law. Insofar as these readers did link Vattel to justifications of relatively unrestrained forms of warfare, they did so in connection with the perceived weakness of Vattel's moral position rather than with its strength. This late-eighteenth-century consensus on the defining features of Vattel's approach to the law of nations sits uncomfortably with Schmitt's evaluative framework, and indeed with other assessments of Vattel that limit themselves to orienting his treatise along fault lines in the historiography of international law.

scholarly journals ‘Hospital Shields’ and the Limits of International Law

2019 ◽  
Vol 30 (2) ◽  
pp. 439-463 ◽  
Author(s):  
Neve Gordon ◽  
Nicola Perugini
Keyword(s):  
International Law ◽  
20Th Century ◽  
International Humanitarian Law ◽  
Early 20Th Century ◽  
Humanitarian Law ◽  
Laws Of War ◽  
Threshold Position ◽  
History Of ◽  
The Law ◽  
Spatial Threshold

Abstract Assaults on hospitals have become part of a widespread warfare strategy, propelling numerous actors to claim that belligerents are not being held accountable for attacking medical units. Acknowledging that international humanitarian law (IHL) offers medical units protections, belligerents often claim that the hospitals were being used to shield military targets and therefore the bombing was legitimate. Tracing the history of hospital bombings alongside the development of legal articles dealing with the protection of medical units, we show how, from the early 20th century, international law has introduced a series of exceptions that legitimize attacks on hospitals that were framed as shields. Next, we demonstrate that the shielding argument justifies bombing hospitals because they have ostensibly assumed a threshold position in-between the two axiomatic poles informing the laws of war – combatants and civilians. We argue, however, that medical units tend to occupy a legal and spatial threshold during war and, since IHL does not have the vocabulary to acknowledge the liminal nature of medical units and identifies between liminality and criminality, it introduces several exceptions that help belligerents legitimize their attacks. By way of conclusion, we maintain that the only way to address the deliberate and widespread destruction of medical units is by reforming the law through the introduction of an absolute ban.

Measuring Without a Ruler: Assessing Compliance with Calculative International Norms

2020 ◽  
Author(s):  
David Traven ◽  
Marcus Holmes
Keyword(s):  
International Law ◽  
Moral Psychology ◽  
Moral Philosophy ◽  
International Norms ◽  
Causal Effects ◽  
Illustrative Case ◽  
Collateral Damage ◽  
Laws Of War ◽  
False Negatives ◽  
The Law

Abstract Measuring compliance with international norms is usually taken to be a relatively straightforward exercise. To determine whether a state is compliant, scholars typically measure the level of conformity between their behavior and “the letter of the law.” IR theorists often disagree over whether compliance tells us anything meaningful about the causal effects of international norms, but most believe that it can at least be measured. We argue that, for certain norms and laws, this claim is too optimistic. We draw on recent insights from moral philosophy and moral psychology to distinguish between two types of international norms: (1) proscriptive norms that govern state practices by providing fairly specific rules of appropriateness for how states or other actors are expected to behave and (2) calculative norms, which do not stipulate any particular rules of appropriateness, but rather require that states take efforts to maximize or minimize a specific value. The laws of war, for example, hold that states cannot target civilians (proscriptive), but they do allow for tactics that generate collateral damage, as long as it is minimized (calculative). Because assessments of conformity between state practices and calculative norms require evaluation of intentions—which can be difficult at best to obtain, particularly in instances where actors have incentives to mislead or dissemble—measuring compliance by assessing behavior and its consequences can be very misleading and lead to false negatives. Using US bombing policy in Vietnam as an illustrative case, we show that failing to observe the differences between norm types can lead to confusion when evaluating the effects of international law.

The Laws of War

1956 ◽  
Vol 50 (2) ◽  
pp. 313-337 ◽  
Author(s):  
Josef L. Kunz
Keyword(s):  
International Law ◽  
Laws Of War ◽  
Sovereign State ◽  
Total War ◽  
New Methods ◽  
Full Circle

It seems that the development of the laws of war from the beginnings of our international law to the present day has completed a full circle. With the definitive decentralization of the medieval communitas Christiana and the coming into existence of the national sovereign state, wars appeared in which new methods for the conduct of war—armies of mercenaries on foot, invention of gunpowder—were combined with the deep ideological split between Catholics and Protestants. The wars of that time were conducted with the greatest cruelty and inhumanity, reaching their climax with the terrible Thirty Years’ War, which may well be called a total war.

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