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A History of War and the Law of Armed Conflict

A History of War and the Law of Armed Conflict. Preliminary Statements of Purpose : . Law is not just applied to the fact of war but structures the way we think about and practice war ( war moulds law – law moulds war ) .

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A History of War and the Law of Armed Conflict

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  1. A HistoryofWar and the LawofArmedConflict

  2. Preliminary Statements ofPurpose: • Law is not just appliedto the factofwarbutstructures the waywethinkabout and practicewar(warmouldslaw – lawmouldswar). • To commandhumanitarianlawyou must haveknowledgeabout the historicallydeterminedpatterns or currents in whichspecific norms, debates and discourses in humanitarianlawcan be placed.

  3. Three historicalepochs (Neff) • Just war – 1800 • War as state policy (statereason) 1800-1919 • Neo-just war 1919 –

  4. 1. Just War – 1800 • War the enforcementofconceptionsofjustice! • Neff: ”Duringthis period the dominant legal frameworkwasthatofnaturallaw, withwarseenprimarily as a meansofenforcingthatlaw. Warswerefought on earth, but (at least in theory) for purposesmade in heaven”. • Very fine linebetween the theologian and the international lawyer

  5. Just warcharacteristics • Onlyoneside has the right touse force: the just side! • Peace is the natural, war the exceptionalmeasuretoinstall it again • Earlylawofwaronlyplacedrestraint on the just side • ”Militarynecessity” – the guidingprinciple for whatuseof force wasallowed (e.g. Vitoria) • Veryfewspecific norms regulatingwarfare apart from this

  6. Just warcharacteristicscontin. • No neutrality in a warbetween ”good and evil”. Problem whichone is what? • Colonial outlook and a radicaldistinctionbetween the Christian worldand ”infidels”. • Heydaysof the Jus ad bellum.

  7. Three historicalepochs • Just war – 1800 • War as state policy (statereason) 1800-1919 • Neo-just war 1919 –

  8. 2. War as state policy 1800-1919 • The ideasuponwhichwar as state policy is basedstartedbrewingalreadyimmediatelyafter the Peace ofWestphalia 1648 • From ”what is right?” to ”What is in the statesinterest?” or from ”justice” to ”power”. Clausewitz– war a pursuitofstate policy by othermeans. • From naturallaw (or divinewill) to positive law (or human creation) • Paradoxically, getting rid ofmorality in war, rationalized it, made it more ”human”. • Becamepossible for uninvolvedpartiesto be neutral. • Eurocentric!

  9. War as state policy characteristics • ”War” does not simplyreferto a practicebut a legal state or conditionwhich is declared • In sharpcontrastto just war-thinkingpeace is not considered normal. War and peacesimplydistinct legal stateswithoutoverlap. • Sovereignequality No communityinterests! • Warconcernedpower not justice! • In sharpcontrastto just war-thinking: Equalitybetween the enemyparties(justus hostis). • Moreelaboraterules for the conductofhostilitiesinsteadofsolereliance on the principleofmilitarynecessity. Codificationefforts in the 19th Century.

  10. War as state policy characteristicscontin. • Professionalizationofwar, increasing isolation ofmilitary from civilian in peace and in war. • Non-judgmentalpeacetreaties. • Neutralityentirelyaccepted. • Heydaysof the jus in bello. • Jus ad bellumunimportant. • Warwaslikenedwith a duelbetween moral equals. • Civil warswereunregulated.

  11. Three historicalepochs • Just war – 1800 • War as state policy (statereason) 1800-1919 • Neo-just war 1919 –

  12. 3. Neo-just war 1919 – • First World War a watershed. • Second worldwar. As far removed from ”waras statepolicy” clashbetweenparochialstateinterest as youcanimagine. • War as state policy out! Ban on war in! • Implied less the outlawingofwar as it implieditsreconceptualisation. • implied a new assymetricalrelationship in war, between the aggressor and unjustside and the defensive just side. • New typeof ”just wars” for communityinterests: U.N. Enforcement action.

  13. Neo-just warCharacteristics • Impact on the Jus ad bellum/jus in bello and Neutrality: • Jus in bello shift from focus on fairness and mutuality to a primary concern with relieving the suffering of victims of war. • Civil war more and more important with the advent of e.g. nationalism. Push towards regulation.

  14. Neo-just warCharacteristicsContin. • ”Justice has beendone!” WhatJustice?http://www.youtube.com/watch?v=O825Ch9pMTg • Neither inter-state nor internalbut transnational armedconflict • It is clearthat an actof terrorism is a crime. Lawenforcementimplies: • Killing as a matterof last resortonly • Dueproessoflaw, right tocounsel, a presumptionofinnocence, a right toconfrontwitnesses, a right to be tried in public and so forth • Extraditionproceedingswhen a statedoes not ”have access” tothosewhoaresuspectof a terrorist crime. • The U.S. And Israel haveassertedbelligerentsrightsinstead. • Killing as a matteroffirstresort (targeted killing) • Detentionuntil the end ofhostilities (Gauntanamo)

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