The Distinction between Combatant and Noncombatant in the Law of War

1945 ◽  
Vol 39 (4) ◽  
pp. 680-697 ◽  
Author(s):  
Lester Nurick
Keyword(s):  
International Law ◽  
Civilian Population ◽  
Law Of War ◽  
Military Necessity ◽  
The Law ◽  
Definition Of ◽  
Almost All

The distinction between combatants and the civilian population has been characterized not only as one of the fundamental principles of international law, but as its greatest triumph. The purpose of this paper is to show that both in point of fact and in theory the distinction has been so whittled down by the demands of military necessity that it has become more apparent than real. On occasion belligerents still give lip-service to the doctrine but when confronted with a particular military situation in the course of actual combat activities in most cases they have either refused to recognize the distinction or, possibly in order to satisfy the requirements of their legal advisers, have extended the definition of combatant to include almost all important elements of the enemy's civilian population.

World War Two and the law of war

1981 ◽  
Vol 7 (2) ◽  
pp. 67-78 ◽  
Author(s):  
Geoffrey Best
Keyword(s):  
International Law ◽  
Second World War ◽  
Human Condition ◽  
World War ◽  
Law Of War ◽  
Lethal Violence ◽  
Military Necessity ◽  
The Law ◽  
The One ◽  
Second World

The Second World War acted like an earthquake on the international law of war and left some of it in ruins. This essay attempts to explain why. But before analysing the nature of the historic forces, and, so far as they are relevant, specific events which produced this disturbance, it will be helpful if we remind ourselves of something even more basic: the intrinsic fragility of the law of war – a fragility which exists and has its unsettling effects even when historic forces happen to be helpful. The law of war of course shares in the chronic weakness of international law in general, that is it is a law without a sovereign – rules without a ruler. But before that, the law of war rests uniquely upon a paradox which hostile critics have not hesitated to call an absurdity. It offers mediation between the demands of on the one hand Humanity, on the other Military Necessity. It opens a middle path between the peaceable brotherly conduct which civilized men believe they would, in favourable circumstances, like to observe towards their neighbours, and the lethal violence they find themselves using when the circumstances are those of war. It requires a cohabitation of logical inconsistencies which some – certainly not all – interpretations of Humanity or Military Necessity have alleged to have been no more practical than squaring the circle. Yet the idea of the law of war has survived, something about which the philosopher and psychologist at any rate might have much to say. The historian, however, feels obliged to pass by those deeper levels of his theme with the reflection, for what it is worth, that such tolerance, even appetite, for inconsistency need not surprise anyone whose idea of human nature includes a divided mind or whose idea of the human condition includes tragedy.

New code for the protection of civilian population and property during armed conflict

1980 ◽  
Vol 20 (219) ◽  
pp. 287-315 ◽  
Author(s):  
Ionel Gloşcă
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
International Treaties ◽  
Civilian Population ◽  
State Activity ◽  
The Holocaust ◽  
Definition Of ◽  
Do So

One of the principles underlying international law applicable in armed conflicts is that no act of war is permitted against the civilian population, consisting, by definition, of persons who take no part in the hostilities.Until the holocaust of 1939–45, international law gave practically no real protection to the civilian population in the event of war, and was not even intended to do so since up to that time war was considered to be a State activity from which civilians remained aloof. There were, nonetheless, general principles and rules in various international treaties which, in one way or another, related also to the civilian population.

Questions of Guerrilla Warfare in the Law of War

1946 ◽  
Vol 40 (3) ◽  
pp. 534-562 ◽  
Author(s):  
I. P. Trainin
Keyword(s):  
International Law ◽  
Guerrilla Warfare ◽  
Law Of War ◽  
History Of ◽  
The Law ◽  
The Moment

The history of war knows no such brigandage, fanaticism, or such craftiness as the German fascist usurpers practiced from the moment of their attack upon the peoples of other states. The rules and customs relating to the conduct of war, recognized by all civilized peoples, were rejected and trampled under foot by these usurpers. These rules and customs relating to the conduct of war, put together in the course of many centuries, have received the title “the law of war” and constitute an inseparable part of international law.

3. The law of treaties

2021 ◽  
pp. 33-48
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
International Organizations ◽  
The Other ◽  
Vienna Convention ◽  
Written Form ◽  
The Law ◽  
The One ◽  
Definition Of

This chapter examines the rules of international law governing the birth, the life, and the death of treaties. Treaties, a formal source of international law, are agreements in written form between States or international organizations that are subject to international law. A treaty falls under the definition of the Vienna Convention on the Law of Treaties (VCLT), no matter what form or title it may have. The most important factor is that it sets out obligations or entitlements under international law. The VCLT enumerates the rules governing the ‘birth’, ie the steps from the negotiation until the entry into force of the treaty; the ‘life’, ie the interpretation and application of the treaty; and its ‘demise’, ie its termination. The two fundamental tenets are, on the one hand, the principle ‘pacta sunt servanda’ and, on the other, the principle of contractual freedom of the parties.

3. The Law of Treaties

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
International Society ◽  
Vienna Convention ◽  
The Law ◽  
Definition Of

Treaties are an important source of international law that are used with increasing frequency to codify, crystallise and develop international law. They are particularly useful when States need to change or reorganise their obligations under international law rapidly, sometimes to reflect the changed reality of international society. This chapter begins with the definition of a treaty. It then discusses the Vienna Convention on the Law of Treaties 1969; formation and application of treaties; reservations to treaties; interpretation of treaties; invalidity of treaties; and termination of treaties.

Sources in the Modern Tradition

2018 ◽  
Author(s):  
Dominique Gaurier
Keyword(s):  
International Law ◽  
Canon Law ◽  
Life Experiences ◽  
Legal Issues ◽  
Legal Knowledge ◽  
War And Peace ◽  
Law Of War ◽  
The Bible ◽  
Intellectual Context ◽  
The Law

This chapter observes that early writers on the law of war or on the law of peace offered their contributions in an intellectual context that was very different from our own. They were attempting to provide explanations for the questions related to war and peace, and in doing so drew upon interesting elements in Roman or canon law. Yet, none of the sources available to them were sufficient to offer a comprehensive response to related legal issues. Although these authors were all largely relying on the Bible and on ancient or contemporaneous history, some also drew information from their own life experiences. The majority, however, built their theories on the basis of their own readings and legal knowledge. Furthermore, only very few authors addressed the question of the sources of international law.

The Law of War and Military Necessity

1953 ◽  
Vol 47 (2) ◽  
pp. 251-262 ◽  
Author(s):  
William Gerald Downey
Keyword(s):  
Brute Force ◽  
Law Of War ◽  
Military Necessity ◽  
Army Officers ◽  
Legal Restriction ◽  
The Law ◽  
The Military

To many international lawyers and army officers the terms “law of war” and “military necessity” are mutually incompatible. Many army officers consider the law of war as no more than a collection of pious platitudes, valueless, so they think, because it has no force and effect. Some international lawyers regard military necessity as the bête noire of international jurisprudence, destroying all legal restriction and allowinguncontrolled brute force to rage rampant over the battlefield or wherever the military have control.

The Paradox of “Just War” in Rousseau's Theory of Interstate Relations

2015 ◽  
Vol 109 (2) ◽  
pp. 314-325 ◽  
Author(s):  
BLAISE BACHOFEN
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Just War ◽  
The State ◽  
Interstate Relations ◽  
Law Of War ◽  
The Rule Of Law ◽  
External Relations ◽  
The Law ◽  
Utopian Theory

In theSocial Contract, Rousseau declares that he has given up the idea of discussing the “external relations” of states. Yet numerous texts—including a recently reconstituted work about the law of war—show that he thought very seriously about the question of the nature and origin of war and of the possibility of making war subject to the rule of law. Rousseau, in contrast to Hobbes, links war's appearance to that of the sovereign states; the state of war is therefore the necessary result of international relations. Moreover, he considers the international law as chimerical. How can he then conceive a non-utopian theory of “just war”? My hypothesis is that his conception of the law of war is deduced from principles of internal political law and arises from pragmatic necessity. The state that discredits itself in its manner of waging war weakens itself while believing that it is reinforcing itself.

Jus Pacis Ac Belli? Prolegomena to a Sociology of International Law

1943 ◽  
Vol 37 (3) ◽  
pp. 460-479 ◽  
Author(s):  
Schwarzenberger Georg
Keyword(s):  
International Law ◽  
Formative Period ◽  
Law Of War ◽  
Traditional System ◽  
The Law ◽  
Sociological Approaches ◽  
Peace And War

The traditional system of international law is based on the distinction between the law of peace and the law of war. In the formative period of international law, thinkers were fully aware of the problems hidden behind this classification. Positivist writers took over these conceptions, framed against the background of a philosophical vista of society. Yet in their hands these terms lost their original significance. It is the purpose of this investigation to throw light on this process and to consider the relevance of this dichotomy into peace and war for the positivist and sociological approaches to international law.

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