In Defence of the Laws of War

Abstract

It seems strange to suggest that law might be one of the factors which maintain the institution of war. Law is the very antithesis of war. To many commentators — ranging from Clausewitz to the most dedicated pacifists — the idea that there might be laws relating to the conduct of war is an absurdity. Yet such laws have existed for nearly as long as the institution of war itself. The laws of war form part of public international law, the law which grew up to regulate the relations between states but which now covers a wider area, encompassing the protection of human rights, the position of international organisations and other participants in international affairs. While the sources of international law have been the subject of much debate, the rules with which this chapter is concerned stem from treaties, that is to say agreements concluded between states, and custom, the practice of states which is accepted as law.