The Laws of War in the Era of Codification

The codification of the law of military occupation was a minor part of a wider process of the codification of international law that accelerated towards the latter parts of the nineteenth cen-tury. It amounted to a veritable ‘cult of codification’. It was fuelled by the same sentiments that lay behind the codification of continental European domestic legal systems, occasionally inducing some of the reservations encountered in that process, namely that codification would inhibit the natural evolution and progress of customary law. Codification of international law, the idea of which went back at least to the beginning of the nineteenth century, clearly presented problems that codification of domestic law did not. Lack of any central international agency to legislate meant that international law had to be understood either in terms of natural law, as a matter of custom and usage, or treaty based law, with the latter being especially difficult to achieve in the highly sensitive area of the laws of war. Only treaty based law brought with it the promise, but not the reality, of the coherence and comprehensiveness that were seen as some of the virtues of domestic codification.

In the case of international law the process was complicated by other factors, some of which facilitated the difficult process of reaching agreement and some of which did not. The process was not helped by the fact that international law as a distinct body of law with dedicated textbooks, institutionalised in European universities, barely existed in the first half of the nineteenth century. Furthermore while in contrast to the general stage of development some elements of international law and the laws of war were relatively well developed, most notably maritime law and the law of prizes in warfare, the very concept of military occupation was recent, inchoate and still frequently entangled in the language of conquest. Ironically, it was helped by some of the very limitations of international law. This law was restricted in scope in the sense that it was seen as regulating a limited number of states, primarily European states.