The Law of War

Ingrid Detter

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317026075
• Edition: 3
• Topic: Tecnologia e ingegneria
• Subtopic: Scienza e tecnologia militare

The third edition of Ingrid Detter's authoritative work explores the changing legal context of modern warfare in light of events over the last decade. Ingrid Detter reviews the status of non-State actors, as individuals and groups become more prominent in international society. Covering post 9/11 events and the resulting changes in the ethos of war, the author analyses the role of military companies and examines what their legitimacy means for international society. The edition also discusses certain 'intrinsic' rules in the Law of War, such as rules giving individuals the right to be spared genocide, torture, slavery and apartheid and assure them basic democratic rights. The author questions the right of 'illegal' combatants to be treated as prisoners of war and suggests that a minimum standard must be afforded to all, whether captured dictators or detainees suspected of terrorism. In the modern world, the individual (the soldier, the civilian, the dictator, the terrorist or the pirate) can no longer behave as they wish. Further new topics include 'target killings', the 'right to protect' ('R2P', - claimed to be a new form of intervention), the use of unregulated weapons such as drones and robots, the war scenario in Outer Space and cyber crimes. There is also a discussion of new developments in the field of war crimes including severe criticism of the novel concept 'joint criminal enterprise' (JCE), which, in the opinion of the author, undermines the Rule of Law. This updated and expanded edition will be of use to statesmen, scholars and students of international relations and international law.

PART I:GENERAL PRINCIPLES

Chapter 1The Concept of War

DOI: 10.4324/9781315556253-2

A The Nature of War

Is war a dispute between men rather than between States? The question has often been asked with regard to traditional wars between States, as wars are fought by individuals. There is no other area where greater duties are imposed on individuals and no other activity in which they are exposed to more personal suffering. Many traditional inter-State wars may have been fought by men filled with patriotic ardour; in others, individuals have not had such firm belief in any cause; other wars, again, have been fought by professional mercenaries whose allegiance could be bought.

One may detect a specific pattern of commitment in civil wars, internal conflicts and other disputes where one party is not a State: members of the non-State party almost by definition fight for a cause, whereas members of the other party sometimes lack this motivation. Contrary to what Ulpian claimed when he said there are no real enemies in civil wars,¹ internal wars and similar disputes have often been more fiercely fought than inter-State wars, even in the case where citizens have taken up arms against fellow citizens. In such wars individuals may thus be more directly confronted.

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¹ Dig.L, XLIX, t.xv, I, xxi: ‘In civilibus dissentionibus, quamvis saepe per eas respublica laedatur, non est tamen in exitium discedat, vice hostium non sunt eorum inter quos jura captivatum aut post liminorum fuerint.’

But things have changed: the ‘War on Terror’,² that started after the attack on the Twin Towers on 9 September 2001 in New York, is being conducted against terrorists, highly motivated by contempt of Christianity, and of any other non-Muslim faith, of Western traditions and especially of the values of the United States. On the other hand, even many of those who fight on the side of States in this global conflict have now regained considerable motivation, all caused by the outrageous nature of the attacks by Islamist militants.

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² See below, in this Chapter under B i, for a definition of this term.

In inter-State wars individuals have traditionally been held as mere ‘incidental’ enemies. During the time of the consolidation of national sovereignty one could expect writers to underline that war, by definition, is a relationship between States, especially in the light of Bodin's theory of internal and external sovereignty.³ With the entrenchment of the idea of external sovereignty such attitudes were perpetuated. Rousseau considered that war is not a matter of a relation ‘man to man’ but only between ‘State and State’, as individuals are only enemies by accident, not as men, not even as citizens but as soldiers; not as members of the fatherland but as its defenders.⁴

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³ Six livres de la republique, 1577, for comments on the double and sub-aspects of sovereignty, see my International Law and the Independent State (London: Gower, 1973), 2nd edn, 1987, 3ff.

⁴ Du contrat social, i, c.4: ‘La guerre est donc point une relation d'homme à l'homme, main une relation d’état à l’état, dans laquelle les particuliers ne sont des ennemies qu'accidentellement, non point comme hommes, ni même comme citoyens, mais comme soldats; non point comme membres de la patrie, mais comme ses défenseurs.’

But Vattel claimed⁵ that when the Head of State, the sovereign, declares war against another sovereign, it is the whole nation which declares war on another nation, for the sovereign acts on behalf of the whole society. This view seems to indicate that it is really the individuals who are at war. This passage has often been cited in English cases⁶ and courts in other countries have taken similar views.⁷ In one case the Supreme Court of the United States underlines that ‘war between nations is war between their citizens’.⁸ But, when courts affirm the view of Vattel, it is not because they disagree with Rousseau's idealistic view of men being forced to be enemies, but because they are concerned precisely with the relationship in law between individuals, the effects of war on their contracts, property or other rights. Inter-State wars and non-State wars are, as will be demonstrated,⁹ indistinguishable in this respect: both affect legal relationships of individuals elsewhere and both are, in the final analysis, fought by individuals.¹⁰

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⁵ Vattel, E., Droit des gens (Paris, 1758), iii c.5.s.70.

⁶ E.g. Janson v Direfontein Consolidated Mines (1901) AC 493.

⁷ For United States courts, see e.g., The Benito Estenger, 176 US 568.

⁸ Sutherland, Alien Property Custodian v Mayer (1926), 271 US 372.

⁹ See below, Chapter 10 on Effects of the State of War, under section C iii.

¹⁰ Even in the case of attacks by robots or drones, individuals will programme these devices and indicate the relevant targets, see below, Chapter 7, B viii.

Why should then, as many suggest, different rules apply in the two types of conflict, in wars between States and in wars involving other non-State actors? Is it the exaggerated sovereignty view that explains that some claim that a State has the right to any ‘police action’ in its own territory?¹¹ It will be investigated later to what extent various rules of the Law of War are applicable inside the internal sphere of States. But at this stage it may be remarked that already Vattel suggested that similar rules ought to apply in the two types of conflict.¹² This applies, in the first place, to all rules of warfare including humanitarian law. For the rules of the Law of War exist for the benefit of the individuals. Secondly, for the sake of equality in unequal conflicts, similar rules of warfare ought to apply.

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¹¹ See below, Chapter 6 on Spatial Application of the Law of War, section B ii.

¹² Vattel, Droit des gens, iii 3 c. 5, s.70: ‘Mais toutes les fois qu'un parti nombreux se croit en droit de résister au souverain, et se voit en état de venir aux armes, la guerre doit se faire entre eux de la même manière qu'entre deux nations différentes’.

This does not preclude that it is the State that has the normal war waging machinery.¹³ Nor will the application of rules of the Law of War to individuals lessen or erode the State's sovereignty. There are numerous clauses in many relevant documents to the effect that provisions granting rights to individuals or to ‘peoples’ will not affect the sovereignty of States.¹⁴ And Protocol II of 1977 to ...