A. Blurred Wartime–Peacetime Divide

Try to guess when the following statements were written:

1. (1) ‘[S]o great a change has occurred in modern times … [that] there would seem to be an impalpable progress from a state of peace towards a state of war.’Footnote ³⁰

2. (2) A ‘wide borderland of hostilities … exists between peace and war’.Footnote ³¹

3. (3) ‘[T]he old classification into war and peace … is far too rigid … [T]he traditional law as applied to war situations has become somewhat out of date if not irrelevant.’Footnote ³²

The dates are 1843, 1883 and 1977. There are also similar historical statements about NIAC’s indeterminate beginning and end.Footnote ³³ The ‘consensus about a recent elision of the difference between war and peace is rooted in a deep historical misconception … [That] distinction … has always been blurred.’Footnote ³⁴ Throughout this chapter, I bring past sources showcasing the rich antecedents of ‘unprecedented’ contemporary phenomena.

Legal sources addressing current inter-State or civil wars also describe indeterminacy regarding their temporal boundaries.Footnote ³⁵ This further diminishes the actual uniqueness of transnational conflicts.

The blurring of the wartime–peacetime divide in current inter-State conflicts is considered a recent phenomenon resulting from the increasing rarity of formal war declarations and peace treaties.Footnote ³⁶ But Maurice’s 1883 survey showed that between 1700 and 1870, of 107 Western conflicts a declaration of war was issued in ‘less than ten’.Footnote ³⁷ Undeclared wars remained common even after the 1907 Hague Convention demanded otherwise.Footnote ³⁸

Indeterminacy regarding the end of inter-State wars was also, historically, common. US Secretary of State, William H. Seward, observed in 1868:Footnote ³⁹

The blurring of the peacetime–wartime divide in current inter-State wars is also considered a side effect of a mid-twentieth-century legal reform. Earlier IHL treaties relied on the term ‘war’ and States wishing to avoid applying IHL argued ‘that a situation not expressly recognised as a war did not constitute a war in the legal sense’.Footnote ⁴⁰ To abolish this legal tactic, the 1949 Geneva Conventions (and subsequent treaties) primarily rely on the term ‘armed conflict’, because (presumably, unlike ‘war’) the determination that ‘armed conflict’ exists relies on objective-factual benchmarks.Footnote ⁴¹ But a side effect of this substitution has been reduced clarity regarding the temporal application boundaries of IHL, because it led to gradual ‘abandonment of the traditional rigid distinction … between … peace and … war’.Footnote ⁴² Oddly, the same terminological substitution is also depicted oppositely, as having enhanced clarity regarding IHL’s temporal application boundaries by giving rise to a doctrine that applies IHL to inter-State conflicts starting from the first shot fired.Footnote ⁴³

In truth, this terminological substitution neither increased nor decreased clarity.Footnote ⁴⁴ Even cases like the ones that the substitution specifically sought to abolish, in which States deny IHL application by denying that their situation is an armed conflict, reappeared as early as the 1950s.Footnote ⁴⁵ Admittedly, the first-shot doctrine reduces indeterminacy regarding the start of IHL application in inter-State conflicts. But the history of such an approach, deeming IHL application mandatory even in small-scale, undeclared conflicts, goes back at least two centuries, to the ‘imperfect wars’ era.Footnote ⁴⁶

Another indeterminacy commonly attributed to transnational conflicts’ rise concerns the difficulty of clearly determining whether a conflict is an IAC or a NIAC.Footnote ⁴⁷ However, this indeterminacy is, actually, quite old; as George G. Wilson observed in 1900:Footnote ⁴⁸

Even torture memo-like arguments are unoriginal. George Aldrich noted in 1973:Footnote ⁴⁹

There is also nothing novel in asserting that ‘the concept of “occupation” is juridically inoperative or disputed in practically all contemporary conflicts’ (as this 1983 assertion demonstrates).Footnote ⁵⁰ As early as 1876, it was observed that ‘the definition of … “occupied district” is very hard to realize’.Footnote ⁵¹

Why do the terminological dichotomies – occupied versus unoccupied territories, IAC versus NIAC, and war/armed conflict versus peace – persistently suffer from indeterminacy? Why are such chronic problems always perceived as new?

First, as already observed by Plato and Aristotle, the actual world ‘in its very essence, [is] a world of things that … fall short of [their ideal model nature]’.Footnote ⁵² The jurisprudence that sprang from this Platonic and Aristotelian thinking would later prove to be significant in addressing the current classification crisis. For now, however, its aforesaid basic observation suffices. Platonic thinking considers this lack of sync between actual things and their ideal model form a result of the flawed nature of actual things. Alternatively, this lack of sync is because any attempt to define a category of things requires depicting a model form of those things that have only attributes generally shared among them; such generalising reasoning ‘by its very nature involves simplification’.Footnote ⁵³ That reasoning is dominant in law.Footnote ⁵⁴ Law, in its ideal model form, provides certainty by setting clear rules, definitions and classifications. But in practice legal concepts are generalisations aimed at regulating numerous situations. Therefore, they unavoidably suffer from at least some measures of indeterminacy and over- and under-inclusiveness.Footnote ⁵⁵ It is especially difficult to clearly define the application boundaries of a law that aims to regulate a category of exceptional cases, such as emergency situations, because each such case is unique and unpredictable.Footnote ⁵⁶ War (armed conflict) and civil disturbances are categories of emergency situations; IAC and NIAC are sub-categories of war; and the distinction between occupied territories and unoccupied territories is between two wartime scenarios. Therefore, any attempt to enshrine in law clear-cut classifications (aimed at accurately defining the conditions under which each of these emergency scenarios exists), or clear-cut boundaries (aimed at pinpointing the precise transition point from one such scenario to another, or between any of them and peacetime scenarios) is bound to face ‘the grey areas of … emergency’,Footnote ⁵⁷ and, therefore, unable to attain its aspired clarity.Footnote ⁵⁸

Secondly, although legal terms inevitably suffer from some measure of indeterminacy, incorporating a term into a law often leads people to assume that it has a clear, objectively ascertainable definition.Footnote ⁵⁹ This tendency is especially strong when the legal terms portray opposing categories, because ‘thinking in antonymous pairs is natural to the manner we construct the world’Footnote ⁶⁰ (even though binary classifications often ‘do not [truly] produce coherent knowledge, only terminological mess’).Footnote ⁶¹ Thus, a dissonance arises between the exaggerated clarity attributed to emergency-related legal terms and the chronic haziness of the situations these terms address.Footnote ⁶² The intuitive attribution of clarity ceases whenever reality demands that individuals determine whether, or not, a certain emergency-related, classifying legal term applies to a concrete situation; once our attention is focused on applying such law to actual emergencies, our illusion of a neat fit between it and reality bursts. Recall the statements quoted earlier: in each a jurist from a different period asserted that during his time war had changed in a manner that diminished the (presumably) long-standing, clear-cut distinction between war and peace. Such statements (found in abundance, throughout modern times) demonstrate the aforesaid illusion-bursting phenomenon, because comparing them reveals that in each period the fault for diminishing the ‘traditional’ ‘clear-cut’ war–peace dichotomy was attributed to the kind of conflict that caught the greatest contemporary public attention: in the nineteenth century it was attributed to ‘imperfect wars’;Footnote ⁶³ in the early twentieth century, to the phenomenon of world wars;Footnote ⁶⁴ post-Second World War, to the Cold War phenomenon;Footnote ⁶⁵ and, subsequently, to conflicts with mixed international and non-international attributes (in the light of anti-colonial and Communist rebellions).Footnote ⁶⁶

Although attribution of exaggerated clarity to core IHL distinctions ceases whenever these distinctions are applied to a concrete conflict, such clarity attribution often retrospectively re-emerges in the collective memory of the conflict. Stated differently, the sense of stability projected by core IHL distinctions frames our recollection of past wars, marginalising attributes of these wars that do not fit the IHL distinctions. For example, the First World War is intuitively recalled as an inter-State war, despite the participation of various non-State forces (exiled government forces, rebels, partisans, tribes, national liberation forces, etc.).Footnote ⁶⁷ The First World War is also recalled with a clear end date, even though that date was, for a long period, factually unclear and legally disputed.Footnote ⁶⁸

The exaggerated clarity attributed to legal terms often leads jurists to believe that indeterminacy would be eliminated if they could only agree on the exact phrasing (e.g., if we only replaced the term ‘war’ with ‘armed conflict’). But phrasing has only limited influence on legal indeterminacy levels, especially when the law addresses emergencies.Footnote ⁶⁹

Despite the chronic nature of IHL distinctions’ indeterminacy, this indeterminacy was not always considered a crisis, but rather an unavoidable, yet manageable, condition. Such a non-crisis attitude acknowledges that the ‘difficult[y] to formulate clear and precise [legal] rules … [to] define the character and the bearing of acts of war … [is] inherent in the very nature of things’;Footnote ⁷⁰ and that all newly adopted IHL ‘definitions [tend to] become obsolescent [almost] upon formulation’,Footnote ⁷¹ because ‘[t]he very nature of war is such that it is impossible to anticipate every new development’.Footnote ⁷² Nevertheless, it asserts that despite being ‘blurred and … not always … readily determinable, the established [IHL] concepts cannot be merely abandoned’,Footnote ⁷³ nor can the attempt to reduce the indeterminacy by means of adopting new treaty IHL,Footnote ⁷⁴ because dismissiveness towards IHL ‘opens the door to every kind of excess and suffering’.Footnote ⁷⁵ We must, instead, be realistic regarding IHL’s capabilities. Accordingly, when making new treaty IHL we should aim only to reduce ‘as far as possible … th[e] uncertainties’.Footnote ⁷⁶ Likewise, when applying existing IHL, the appropriate way to address the inevitable indeterminacy is to ‘analogize, insofar as possible … [from the existing] law so as to preserve the intent thereof and thereby diminish the evils of war’.Footnote ⁷⁷

Past reliance on such a non-crisis ‘adaptation’ attitude indicates that the current crisis is not necessarily an unavoidable result of IHL distinctions becoming indeterminable due to changes in warfare. Those wishing to reform an existing law often propagate a crisis narrative that frames certain events as challenging that law; crisis narratives are used primarily by those who lack sufficient power, under the existing normative conditions, to shape the law.Footnote ⁷⁸ Admittedly, not all factual circumstances can serve as a basis for a crisis narrative, and often those who support such a narrative honestly perceive a crisis. Nonetheless, most factual circumstances can be understood in various ways and different implications could be concluded from the same set of facts; our specific understanding of factual circumstances is shaped by the narratives we, consciously or unconsciously, construct.Footnote ⁷⁹

In international law, wars are often a basis for crisis narratives.Footnote ⁸⁰ These crisis narratives have been mainly of two kinds: First, in various past conflicts States have claimed that changes in warfare and the indeterminacy of existing IHL have rendered that law obsolete and therefore inapplicable to their contemporary war.Footnote ⁸¹ Second, sometimes the crisis cry was subsequently also embraced by those wishing to increase the legal constraints on belligerents. They argued that the legal indeterminacy and warfare’s changed, ghastlier nature prove that existing international law is inapt and contemporary conflicts necessitate new, more constraining laws.Footnote ⁸² Past successes of the second kind of crisis cries campaigns have shaped a prevailing narrative of IHL history, according to which advancing international law has, gradually, transformed quondam lawless wars into humane warfare.Footnote ⁸³

In truth, in some respects current IHL is more, and in others is less, constraining than past IHL. Both aforesaid kinds of crisis narratives, as well as non-crisis adaption attitudes, have influenced IHL development. The present prevalence of a crisis narrative merely attests to the increasing influence of factions that, in the existing normative setting, do not have sufficient power to shape IHL in accordance with their preferences.

B. Blurred Principle of Distinction

When do you think each of the following statements was made?

1. (1) Some view ‘the new phenomena [of extensive civilian participation] … as a general decadence of the art [of war]; and h[o]ld … that in the evenly-balanced … war game [i.e., battle warfare] the perfection of the art is realized.’Footnote ⁸⁴

2. (2) Who should ‘be considered combatants according to the laws of war? … [This] question … continues to be the theme of much consideration’.Footnote ⁸⁵

3. (3) ‘[The recent] war has emphasized … the archaic character of the [contemporary] Conventions. They speak the language … of [the] nineteenth-century … envis[ioning] war mainly as a trial of strength between opposing professional teams in which civilians would play the role of spectators. [Accordingly, these IHL conventions draw] … [s]harp distinctions … between the functions of the State and those of the individual … Under modern conditions these distinctions have everywhere become blurred and often obliterated.’Footnote ⁸⁶

4. (4) Within two decades, a ‘new form of warfare [widespread terrorism] has been born … [It] differs fundamentally from the wars of the past in that victory is not expected from the [battlefield] clash of two armies’.Footnote ⁸⁷ Unlike ‘soldier[s] … terrorist[s] … [attack] without uniform … far from a field of battle … [and mainly] unarmed civilians’.Footnote ⁸⁸

The first statement is from Carl von Clausewitz’s book On War, written following the French Revolution and Napoleonic Wars. Like the torture memos, Clausewitz argued that ‘to introduce into the philosophy of war itself a principle of moderation would be an absurdity’,Footnote ⁸⁹ and dismissed existing wartime international law as ‘imperceptible’.Footnote ⁹⁰ The second statement is from Edward Creasy’s 1876 treatise, influenced by the failed 1874 Brussels Conference. The third statement is from a 1944 article, criticising the 1907 Hague Regulations in the light of the Second World War. The fourth source is a 1961 French analysis of Modern Warfare; inspired by Clausewitz, and like the torture memos, it dismisses IHL application to wars against terrorists.Footnote ⁹¹ These sources demonstrate that there is nothing novel in current claims that IHL is unable to deal with the supposedly recent blurring of the combatant–non-combatant distinction and the passing of battle warfare. This section addresses the former.

As Clausewitz’s statement implies, irregular fighting has been on the rise since the late eighteenth century, beginning with a surge in civilian participation in wars and the transition to conscripted national armies.Footnote ⁹² Since then, civilian participation in wars has often been influenced by views dismissive of IHL in popular revolutionary movements; as Winston Churchill exaggeratedly noted, ‘[f]rom the moment Democracy … forced itself upon the battlefield, war ceased to be a gentleman’s game’.Footnote ⁹³ The nineteenth century was, therefore, not a period in which the principle of distinction was clear.

The inaccurate prevailing historical account is partly due to the previously discussed attributes of dichotomist emergency-related classifying legal terms. Because of these attributes, the blurring of the combatant–non-combatant distinction is somewhat unavoidable, as well as bound to be perpetually perceived as novel.

Due to this misguided perception, attention is primarily paid to the rather recent distinction-related reforms made in the 1949 Geneva Conventions and the 1977 Additional Protocols. Relative to earlier treaties, each of these reforms expanded: (a) POW status eligibility;Footnote ⁹⁴ (b) the protections granted to ‘unprivileged’ (ineligible for POW status) enemy combatants (notably, until the 1949 adoption of Common Article 3, some still held that IHL authorised the extrajudicial execution of captured ‘unprivileged’ combatants).Footnote ⁹⁵ But this focus on recent events neglects that the discourse dedicated to developing IHL since the ‘nineteenth century, could not ignore questions relating to the [warfare] initiative of the people … in the form of hostile uprisings, guerrilla warfare, etc.’Footnote ⁹⁶ Within this discourse two approaches often competed. One approach considered the blurring of the combatant–non-combatant distinction as a crisis likely to render IHL obsolete.Footnote ⁹⁷ The second considered it an inevitable, manageable condition.Footnote ⁹⁸

The latter (non-crisis) approach is strongly expressed in a norm adopted long before 1949. At the 1874 Brussels Conference, a comprehensive proposal was advanced to resolve the combatant–non-combatant indeterminacy. But opposition was considerable, both because of political disagreements and because clarity is not in the nature of the thing. A compromise was therefore proposed, containing only two narrow distinction-related articles (other than those addressing regular State forces) setting the POW status eligibility conditions for: (a) certain irregular State forces (militia and volunteer corps), and (b) certain civilian fighters in unoccupied territories.Footnote ⁹⁹ This compromise attempt failed, and only a non-binding declaration was adopted.Footnote ¹⁰⁰ When States attempted again to codify IHL, in 1899, incorporating the above articles of the Brussels Declaration was suggested. Again, the proposal encountered strong opposition, which argued that (a) a clear-cut differentiation between those eligible and ineligible for POW status cannot be made because of the inherent blurriness of the principle of distinction, and (b) a clear determination of the existence of belligerent occupation is often impossible.Footnote ¹⁰¹ Eventually, a compromise was reached:Footnote ¹⁰² the articles were incorporated, becoming Articles 1 and 2 of The Hague Regulations, but as a counter-balance the following statement was included in the preamble:Footnote ¹⁰³

I suspect that upon realising that the current discussion concerns the ‘Martens Clause’, you (the reader) uncontrollably rolled your eyes. The general feeling among jurists is that the Martens Clause means anything one claims it to mean and therefore means nothing.Footnote ¹⁰⁴ This dismissive attitude is partly due to the clause’s vague terms. But to an even greater degree, it stems from later developments. In the last half a century, some jurists, in attempt to advance expansive interpretations of the clause, constructed a mythological account of its creation. Such interpretations treat the clause like constitutional law, or IHRL, using its vagueness to evermore expand civilian protection.Footnote ¹⁰⁵ In response, Statist-positivist jurists criticised both the clause’s vagueness and its expansive interpretations, arguing that it places no effective obligations on States.Footnote ¹⁰⁶ The clause’s authoritativeness has further diminished due to recent CLS-oriented historical research that refuted the mythology regarding its ‘birth’, stressing the politics behind its adoption.Footnote ¹⁰⁷

However, the CLS account of ‘law as politics’ tends to be inaccurate, because political influences on law formation often do not bar legal and moral factors from also having an influence.Footnote ¹⁰⁸ As for the IHRL-like and Statist-positivist approaches, neither tells the whole jurisprudential-normative story of the clause’s creation. At the time (even more than today), IHL was influenced by an additional jurisprudential approach (henceforth ‘nature-of-things jurisprudence’). Reading the clause through that jurisprudential lens can better our understanding of the clause. But, before such a reading could be made, a (somewhat lengthy) presentation of the ‘nature-of-things jurisprudence’ is required.

Nature-of-things jurisprudence, although it does assume the existence of some universal rights and (even more so) obligations, considerably focuses on profession/status-specific rights and (especially) obligations.Footnote ¹⁰⁹ This focus stems from its core jurisprudential premise that each kind of entity, including each profession and legal status, has a distinct ideal nature from which distinct rights and (especially) obligations derive.Footnote ¹¹⁰ State agents’ obligations (e.g., those of rulers, judges and soldiers), like those of private professionals (e.g., doctors), are, accordingly, viewed as personal obligations deriving from the nature of their profession.Footnote ¹¹¹ By contrast, both Statist-positivist and IHRL-like approaches regard State agents’ obligations as derivatives of their State’s obligations, based on a vision of the State as a corporate entity and on conceptualised clear distinctions between public and private, and between sovereigns and individuals.Footnote ¹¹²

Nature-of-things jurisprudence also offers a unique perspective on the relations between positive and natural law, which, unlike Statist-positivism, does not conceptualise sharp distinctions between international and domestic law, law and policy, or morality and law. First, it expects positive law to reflect universal natural law, and permits the punishment of individuals for violations of core unwritten natural laws.Footnote ¹¹³ Secondly, it expects one’s actions to be directed neither by fear of punishment, nor by deference to positive law, but by an aspiration to follow one’s ideal nature; all the while, acknowledging that this aspiration could never be fully attained (as evident in Platonic and Aristotelian thinking).Footnote ¹¹⁴ Thirdly, this jurisprudence utilises both ‘perfect’ and ‘imperfect’ obligations.Footnote ¹¹⁵

These two obligation concepts have various definitions. A ‘perfect obligation’ refers herein to a rather precise, non-discretionary normative duty that specifies its beneficiaries (a ‘right’ correlates to the duty).Footnote ¹¹⁶ An ‘imperfect obligation’ refers herein to a discretionary-aspirational normative duty, demanding its bearers be guided by a certain motivation, while according them extensive discretion: (a) regarding the (kind and amount of) resources they should invest into fulfilling the duty; and (b) towards whom to direct their efforts to fulfil that duty (no one has a correlating ‘right’).Footnote ¹¹⁷ This definition differs from imperfect obligations’ popular definition as ‘moral dut[ies] which cannot be enforced by law’.Footnote ¹¹⁸ Indeed, some prominent nature-of-things jurisprudential views (such as those that greatly influenced IHL) do hold that blatant grave violations of imperfect obligations could give rise to legal sanctions, despite these obligations’ open-endedness.Footnote ¹¹⁹ The aforesaid popular definition of imperfect obligations, like the prevailing rejection of unwritten (customary and natural law) crimes, reflects the prevailing understanding of the principle of legality, which gained prominence from the nineteenth century onward under the influence of both positivism and rights jurisprudence.Footnote ¹²⁰ However, IHL and international criminal law (ICL), along with some domestic (common law) systems, still rely considerably on a different understanding of that principle (which reflects nature-of-things jurisprudence).Footnote ¹²¹ That understanding perceives normative prohibitions as having a non-legal (social-moral) penumbra and a legal (even criminal) core; despite the acknowledged murky border between the core and penumbra, ‘fair-warning’ is assumed regarding perpetrators of blatant grave violations, based on the premise that a normative message to avoid that behaviour is already conveyed by the penumbra and that it amplifies as the breaching behaviour nears the prohibition’s core.Footnote ¹²²

The aforesaid elements of the nature-of-things jurisprudence aid in addressing the limitations of law. Consider, for example, in bello proportionality law; that IHL instructs commanders not to cause incidental civilian harm that is excessive in relation to the concrete and direct military advantage anticipated from their attack.Footnote ¹²³ This norm is undeniably vague and encourages ‘judicial deference to the military commander’s situational judgement’.Footnote ¹²⁴ Furthermore, it is widely acknowledged that that norm cannot become clearer, due to the ‘fog of war’ and because the required comparison is ‘between unlike quantities and values’.Footnote ¹²⁵ Yet, despite this chronic vagueness, criminal responsibility still exists ‘in cases where the excessiveness of the incidental damage was obvious’,Footnote ¹²⁶ because in such cases a wide consensus is deemed to exist regarding the commission of a violation.Footnote ¹²⁷ It exists only in such cases due to ‘fair-warning’ concerns.Footnote ¹²⁸ But, as Mark Osiel observes, the norm’s influence extends beyond the extreme penal cases, attempting to instruct soldiers to embrace the ‘belief that “internal morality” of professional soldiering constrains their use of force in ways far more demanding than [the enforceable] international law’.Footnote ¹²⁹ This further constraining demand of martial virtue and honour is conceptualised as, considerably, ‘deriv[ing] … from the fact that the weighty responsibilities demanded of [commanders] … cannot find full reflection within the law governing [them]’;Footnote ¹³⁰ similar normative settings exist ‘wherever we expect … professionals … to behave in morally exigent ways that we cannot quite bring the law to require of them.’Footnote ¹³¹ Furthermore, the extrajudicial ‘forms and sources of inhibition on the measure of force employed in war have become integral to any acceptance of the proportionality rule’.Footnote ¹³² In short, in bello proportionality law is an imperfect obligation in the nature-of-things jurisprudence sense of that term.Footnote ¹³³

As evident in ius in bello proportionality’s prominence, IHL has been strongly influenced by nature-of-things jurisprudence. That influence is further evident in the fact that ‘humanity’, ‘necessity’ and ‘chivalry’ – all imperfect obligations – have long been core IHL principles.Footnote ¹³⁴ Humanity, as an imperfect obligation, constitutes a universal duty to act mercifully.Footnote ¹³⁵ Necessity is an imperfect obligation of moderation, imposed on anyone committing legally authorised acts of violence.Footnote ¹³⁶ The Martens Clause explicitly mentions both humanity and necessity. Chivalry (military honour) has long been regarded as an imperfect obligation imposed on professional warriors as part of their ‘very essence … [as guardians of the] fabric of international society’,Footnote ¹³⁷ holding that the ‘soldier, be he friend or foe, is charged with the protection of the weak and unarmed … [based on] the noblest of human traits – sacrifice’.Footnote ¹³⁸ Chivalry conceptualises adherence to IHL as ‘a personal rather than a state [obligation]’.Footnote ¹³⁹ Accordingly, the Martens Clause is addressed not to the collective State entity, but rather to military commanders; thus, it is said that in the Martens Clause, ‘“Chivalry” find[s] … [its modern] source’.Footnote ¹⁴⁰

The Martens Clause echoes the nature-of-things jurisprudence in additional ways. The non-positivist premise that wide discretion does not necessarily amount to the non-existence of obligatory norms is expressed in the assertion that cases unregulated by treaty are not ‘left to the arbitrary judgement of the military commanders … [but] remain under the protection and empire of the principles of international law’.Footnote ¹⁴¹ The interrelated perception of law, policy and morality is expressed in the definition of ‘the principles of international law … [as] result[ing] from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience’.Footnote ¹⁴²

Given this history, the Martens Clause should, arguably, be viewed as a legally binding imperfect obligation to guide military commanders (and those reviewing commanders’ decisions). At minimum (considering its explicit reference to Articles 1 and 2 of the Hague Regulations), the clause should be viewed as such when commanders need to address ‘twilight’ states between ‘combatants’ and ‘non-combatants’, or between ‘occupation’ and ‘non-occupation’.Footnote ¹⁴³

Accordingly, for example, before the present classification frenzy, many held (and some still do) that:Footnote ¹⁴⁴

C. The Demise of Battles

It is widely held that existing (aka ‘traditional’ or ‘modern’) IHL was designed primarily based on a conceptualisation of war as ‘symmetric conflicts taking place between [equal] state armies’,Footnote ¹⁴⁵ on ‘compartmentalize[d] … battlefield[s]’.Footnote ¹⁴⁶ Therefore, many deem existing IHL to be unsuitable for transnational conflicts, as these wars do not fit that conceptualisation of war.Footnote ¹⁴⁷

But we have seen that for the past two centuries, similar forms of warfare – namely, irregular, civilian, indiscriminate, non-State and terrorist warfare – have been likewise described (in Carl von Clausewitz’s words) as a ‘new phenomenon [marking] … a general decadence of … the evenly-balanced … war game [of inter-sovereign battle-warfare]’.Footnote ¹⁴⁸ How can it be that over the course of this long period similar forms of warfare have each been perceived, at one time or another, as a novel phenomenon that recently abolished battle warfare?

Originally, a ‘battle’ was a legal concept, referring to a specific form of fighting to which unique laws applied.Footnote ¹⁴⁹ In late medieval times, ius ad bellum defined two categories of enemies: (a) illegitimate, including rebels and non-believers (‘savages’, ‘infidels’ and ‘heretics’), against whom total war, without ius in bello restrictions, was prescribed; and (b) legitimate, against whom limited war must be fought, in which ius in bello applied.Footnote ¹⁵⁰ Even in limited wars, non-combatant protections were slight: it was legal to execute most captured enemy combatants (only knights were eligible for POW status) and to harm most civilians (ius in bello prohibited harming only women, children, the elderly and select professionals).Footnote ¹⁵¹ Even limited wars were, usually, wars of attrition, conducted mainly through raids on the enemy’s civilian population. Battles were a notable exception, conducted between opposing forces on a designated field, based on uniquely restrictive ius in bello.Footnote ¹⁵² Additionally, unlike victories attained otherwise, a battle victory was considered a binding legal ruling regarding the justness of the victor’s cause; belligerents often avoided battles because of this decisive legal implication.Footnote ¹⁵³

In the sixteenth and seventeenth centuries, instances of total warfare increased because European conflicts were mainly rebellions and religious wars, and because knight-led forces were increasingly replaced by mercenaries.Footnote ¹⁵⁴ But the ensuing trauma led to public pressure to humanise warfare, and mercenaries’ indiscipline led to their replacement with professional, standing armies, whose officers, commonly, respected ius in bello because they saw themselves as the heirs of the knightly tradition.Footnote ¹⁵⁵ Thus, ‘chivalry’ and ‘humanity’ inspired considerable legal reforms, including: (a) all regular soldiers, not only knights, wore uniforms and became eligible for POW status;Footnote ¹⁵⁶ (b) contributions and requisitions, in return for protection, increasingly replaced raids against civilians;Footnote ¹⁵⁷ (c) intentionally harming any non-combatant became illegal;Footnote ¹⁵⁸ (d) ‘use of [newer] more deadly weapon[s] … was [often perceived as] hostile to the law of war’;Footnote ¹⁵⁹ and (e) avoiding battles became less acceptable.Footnote ¹⁶⁰ This ushered in the era of limited or battle warfare. The decisive clash of opposing armies on a designated battlefield made it relatively easy to distinguish civilians from combatants and to identify IHL’s spatial and temporal application boundaries. Because battles were perceived as collective jousts, and due to chivalry’s strong influence, contemporary IHL was premised on a ‘simple’, tit-for-tat, fair-play conceptualisation of reciprocity.Footnote ¹⁶¹

But that era should not be overly romanticised. Even at its eighteenth-century height, battles were still uncommon, merely more common than before.Footnote ¹⁶² Furthermore, the simplistic conceptualisation of reciprocity legitimised harsh reprisal measures in response to IHL violations; especially so against civilians, because civilian participation in the fighting was regarded as a severe violation of the laws of the war ‘game’.Footnote ¹⁶³

The demise of battle warfare began in the late eighteenth century with the beginning of the surge in civilian participation in warfare.Footnote ¹⁶⁴ Weapons innovations and progress-oriented cultural changes eliminated the aversion to using new weapons and contributed to battle warfare’s ‘demise’.Footnote ¹⁶⁵ But that ‘demise’ was protracted and non-linear. Commitment to battle warfare precepts weakened at the turn of the nineteenth century. Yet it recuperated by the mid-nineteenth century, creating unmet expectations that the American Civil War (1851–6) and the Franco-German War (1870–1) would be conducted accordingly. Widespread civilian participation, new weapons and harsh reprisal measures caused extensive suffering in these wars, leading many to realise that battle warfare was waning.Footnote ¹⁶⁶

Both early and late nineteenth century sources depict battle-warfare’s ‘demise’ as recent. The non-linear, protracted nature of that ‘demise’ explains that incoherence regarding the time of that ‘demise’. But, it fails to explain the continued depiction of battle-warfare’s ‘demise’ as a recent phenomenon throughout the last century, because the battle-warfare era fully ended by WWI (‘battle’ ceased being a legal concept and compartmentalised battlefields became much rarer).Footnote ¹⁶⁷

Note further that the conditions of the American Civil War and of the Franco-German War played a pivotal role in bringing about both the realisation that battle warfare was waning and an effective determination to codify and reform IHL.Footnote ¹⁶⁸ In the course of that late nineteenth- and early twentieth-century reform, legal constraints were increasingly placed on recourse to reprisals, which strongly contributed to IHL’s gradual shift from the tit-for-tat (battle warfare era) reciprocity notion towards the current more abstract, long-term reciprocity notion that aspires to facilitate postwar peaceful relations.Footnote ¹⁶⁹ Given the nature of these (and later) legal reforms, the premise that existing IHL was chiefly designed for battle-warfare, and so for ‘simple’ reciprocity conditions, is clearly wrong.

How could the depiction of a recent ‘demise’ of battle warfare continue throughout the last century? Why is current IHL misperceived as having been designed for battle warfare? The best place to start explaining these anomalies is modern IHL’s proclaimed beginning. ‘[A]s every student of the subject knows, modern IHL began when the Swiss businessman Henri Dunant visited the battlefield of Solferino … [which led him to] found the Red Cross.’Footnote ¹⁷⁰ As the story goes:Footnote ¹⁷¹

Notice something odd with that historical account? It claims that the mid-nineteenth-century attitude, unlike that of today, did not believe in the legal regulation of warfare. But, if that is true, how come a similar, current battlefield visit feels much more (not less) dangerous than during Dunant’s visit?

Dunant felt safer than we would, because Solferino was ‘a classic single-day battle … [which] resolved its war, producing a momentous historic verdict: the unification of Italy’.Footnote ¹⁷² Dunant’s self-depiction as a tourist was not a metaphor. The decisiveness (and compartmentalised nature) of battles led to ‘a characteristic mid-nineteenth-century phenomenon’:Footnote ¹⁷³

These facts do not diminish Dunant’s contribution. They do, however, reveal flaws in the humanitarian narrative that modern IHL was ‘born’ at Solferino. That narrative demonstrates a common tendency to examine the past not on its own merits, but, rather, in comparison with the present, which inevitably leads to exaggerated assumptions of similarity or difference between the past and the present.Footnote ¹⁷⁴ The aforesaid narrative presumes exaggerated similarly between past and present by failing to realise that in the past the term ‘battle’ meant a legal (and not merely colloquial) concept that considerably constrained combat behaviour. The same is true for current sources that depict the demise of battle warfare as recent; the difference is that the aforesaid humanitarian narrative unreflectively attributes the disorderly qualities of recent battles to the compartmentalised ones of yore, while the forward-dating of battle warfare’s ‘demise’ does the opposite. The aforesaid humanitarian narrative also presumes an exaggerated level of dissimilarly between past and present by assuming that in Dunant’s time (unlike today) the prevailing attitude was dismissive of IHL. Dunant’s actual experience reveals considerable adherence to IHL at Solferino. Contrary to that humanitarian narrative, a wide range of approaches influenced IHL’s normative universe, then and now.

During the last two centuries, IHL has been shaped by three main types of approaches besides humanitarian ones: (a) ‘warrior’ approaches, usually held by military professionals; (b) Statist-positivist approaches that either deny IHL’s effective existence or regard States as IHL’s sole lawmakers; and (c) pacifist approaches, sceptical of IHL’s combat influence. Each is responsible for a piece of the puzzle concerning the perpetual forward-dating of the ‘demise’ of battle warfare.Footnote ¹⁷⁵

1. (a) Many of the nineteenth-century military professionals who influenced IHL sought to adapt ‘chivalry’ to the changing warfare conditions. For them, symmetric battlefield clashes became desired ideals.Footnote ¹⁷⁶ Nevertheless, warrior approaches tended to also acknowledge strong reasons against adopting ‘the view that war is a sort of athletic contest, in which none but the authorized teams must play’, because ‘most wars are now contests of peoples rather than princes’.Footnote ¹⁷⁷ Therefore, the influence of their aspirational battle-related ethos alone cannot explain the aforesaid persistent forward-dating.

2. (b) Statist-positivist approaches (fully crystalised in the late nineteenth century) hold that ‘there was only one [form of] sovereignty … the territorial State’,Footnote ¹⁷⁸ and posit sharp ‘distinctions between public and private, law and politics, international and municipal, sovereigns and individuals’.Footnote ¹⁷⁹ Based on such approaches:Footnote ¹⁸⁰

   [An] attempt … [was] made to introduce another principle [to IHL] … confining wars to governments themselves. Under this principle the state would become in effect a corporation with limited liability … and war would become an athletic contest between two schools whose members … must not participate except as members of the duly authorized teams.

3. (c) For opposite reasons, pacifist approaches also embraced the premise that ‘[t]he battlefield, the territory of belligerency, was legally demarcated’:Footnote ¹⁸¹

   The[ir] point was to shrink the domain of war through moral suasion, agitation, shaming, and proselytizing … This conviction lent an ethical urgency to the emergence of a sharp legal distinction between war and peace … [c]ombatants and non-combatants …

Warfare did not reassume a compartmentalised battle form, and ‘warriors’ and ‘humanitarians’ have expressed much less faith than Statist-positivists and pacifists in sharp legal distinctions.Footnote ¹⁸² Nevertheless, this misleading narrative has caught on, and is likely the primary cause of the perpetual forward-dating of battle warfare’s ‘demise’ and for the misconception of existing IHL as having been designed for battle warfare.

The irony is that after their ideological forerunners created unrealistic expectations for sharp war-related legal distinctions, present-day peace-ordinated IHL sceptics (hardline IHRL advocates) and hardline Statists present IHL’s failure to fulfil these unrealistic expectations as proof of its inability to regulate contemporary conflicts. Statists do so as part of their attempt to release States from existing IHL constraints. IHRL advocates do so to expend IHRL wartime application; after all, the ‘once-sharp’ distinction between peace (IHRL’s original domain) and war has muddled.

D. Unprecedented Wars

When were the following statements made?

1. 1. Because of technological developments, a ‘war amongst the great powers is now necessarily a world war’.Footnote ¹⁸³

2. 2. Technology changed warfare: ‘Instead of a small number of well-trained professionals championing their country’s cause with ancient weapons … we now have entire populations, including even women and children, pitted against one another in brutish mutual extermination.’Footnote ¹⁸⁴

3. 3. ‘The war which we fight is an unprecedented war of global character … because of the [current] age of modern technology and of world-wide interdependence.’Footnote ¹⁸⁵

The first source is from 1848, referring to naval innovations. Its use of the term ‘world war’ seems odd to us. Current reference to the war of 1914–18 as the First World War often makes us forget earlier multi-continent, multi-partisan wars (such as the Napoleonic Wars 1803–15). The second source is Winston Churchill’s 1930 autobiography, deeming the demise of battle warfare ‘the fault of Democracy and Science’.Footnote ¹⁸⁶ The third source is an article from the Second World War. These sources, similarly to current ones, depict new technologies as revolutionising warfare by obliterating either the principle of distinction or wars’ spatial confinements.

We tend to assume that our era is exceptional in its technological achievements. But empirical data indicates that the innovation rate peaked sometime between 1873 and 1914, and has been decreasing since.Footnote ¹⁸⁷ Nearly all significant weapons today debuted by the First World War: automatic rifles, machine guns, tanks, submarines, biological weapons, chemical weapons, rockets and (manned and unmanned) aircraft; the most notable exception, atomic weapons, debuted in the Second World War.Footnote ¹⁸⁸ This is not to say that weapons ceased to develop, only that advances are occurring at a slower pace. This is also not to say that recent technological developments did not cause changes in warfare, only that we tend to exaggerate the significance of current changes relative to those of the past. This is an expression of a well-known phenomenon, ‘temporocentrism’, the ‘largely unconscious … tendency … to place … an exaggerated emphasis upon our own period’.Footnote ¹⁸⁹

Temporocentrism goes beyond our attitude to contemporary innovations: ‘We assume always … that the crisis of our age is somehow more critical than the crises of other ages.’Footnote ¹⁹⁰ This may explain our perception of contemporary wars, because the overall picture is actually ‘far more positive than many suppose … [S]tatistics suggests that there has been a sharp decline over recent decades in the number of deaths directly resulting from wars’.Footnote ¹⁹¹ The main reason behind the decline in casualties is the reduction in the incidence of inter-State conflicts, which (counter-intuitively) have tended to cause more casualties than NIAC.Footnote ¹⁹² Since the 1990s, NIACs have also been (non-linearly) declining.Footnote ¹⁹³ Specifically regarding the fight between the United States and contemporary transnational terrorist groups: in 2016, US President Obama noted that US citizens are more likely to die from a fall in a bathtub than from a terrorist attack, suggesting that the perceived threat from such terrorism is inflated.Footnote ¹⁹⁴

Admittedly, NIAC’s percentage among wars has increased. A popular account speaks of a ratio of two internal wars for every inter-State war prior to the Second World War, compared with a 4.7:1 ratio between 1945 and the 2000s.Footnote ¹⁹⁵ Yet, the ratio change notwithstanding, inter-State wars remain a significant phenomenon (not to mention that another account speaks of a less drastic change, from a 3.2:1 ratio in 1816–1945, to a 4.4:1 ratio in 1945–2000s).Footnote ¹⁹⁶ Likewise, even before 1945, internal wars were more common than inter-State wars; thus, clearly, a significant phenomenon. Statistical data indicates that during the last two centuries, even non-inter-State wars other than internal wars (e.g., colonialist wars and those against Al-Qaeda and ISIS), in and of themselves, have been ‘much more common than inter-state wars, with 163 … [such] wars, compared with 95 inter-state wars’.Footnote ¹⁹⁷

Undeniably, each war has unique attributes, and current wars are not the same as they were several decades ago (change is, arguably, the only constant in history). But the characterisation of current transnational conflicts as wars of a new kind further assumes that they are qualitatively different than past wars.Footnote ¹⁹⁸ Many scholars challenge this assumption, because:Footnote ¹⁹⁹

This criticism has forced Mary Kaldor, the leading scholarly proponent of the new wars thesis, to qualify her position. Although still arguing that contemporary wars have new attributes, she adds:Footnote ²⁰⁰

Even Al-Qaeda’s and ISIS’s attributes (the sources of the current archetypal transnational conflicts), though far from identical to those of their predecessors, are not as exceptional as commonly assumed. After 9/11, Paul Berman noted that this terror assault followed the warfare pattern exhibited by anti-liberal movements worldwide since the First World War.Footnote ²⁰¹ These ‘movements were never fully synonymous with national States’.Footnote ²⁰² The Second World War, for example, ‘was complicated by Nazism’s ability to call on sympathizers and co-thinkers all over Europe’.Footnote ²⁰³ ‘Communism was likewise an international affair.’Footnote ²⁰⁴ Berman concluded that since it is waged through terror attacks by an anti-liberal movement with transnational attributes, Al-Qaeda’s war is ‘a war of an old kind’.Footnote ²⁰⁵

Berman’s description of Nazism may sound odd to us, but this is because of the tendency to retrospectively marginalise past wars’ non-State-like attributes. During the Second World War, this description was commonly held. After all, the Nazis: (a) maintained a party apparatus parallel to that of the German State; (b) aimed for global domination; (c) considered Nazism, at least to some degree, the German manifestation of a universal ideology (non-liberal nationalism); and (d) maintained ties with adherents of that ideology elsewhere. Justice Pal, of the Tokyo Tribunal, accordingly, doubted whether the Nazis could be called a State rather than a ‘Shapeless force without recognised political character.’Footnote ²⁰⁶

Pal’s depiction reveals an inaccuracy in Berman’s choice of the First World War as the starting point for the warfare pattern he describes. Pal quoted from the 1818 treaty concerning Napoleon’s detention.Footnote ²⁰⁷ The treaty parties (the European Powers) considered Napoleon as waging war not as the ruler of France and as aiming for global domination; accordingly, the treaty deemed him ‘the leader of a Shapeless force without recognized political character’.Footnote ²⁰⁸

Napoleon was not the era’s only feared transnational global enemy. At the same 1818 international congress, the European Powers also formed the European Concert (the UN’s ‘grandfather’), influenced by a belief ‘that the French Revolution, and all subsequent [remotely resembling] political developments … were part of [a single] international … revolutionary threat’,Footnote ²⁰⁹ because the Comité Directeur, a ‘central but secret body[,] was coordinating rebellions throughout Europe’.Footnote ²¹⁰ The Comité Directeur did not exist; but, throughout the nineteenth century, European Concert members ‘truly feared it’.Footnote ²¹¹ The element of truth in this fear lay in the fact that since the late eighteenth century, both liberal and anti-liberal revolutionary movements often included elements that wished to globalise.Footnote ²¹² Berman’s account, therefore, inaccurately depicts a clear-cut contrast between liberal and anti-liberal movements.

Berman’s description of Communism has merits. Communism had global ideological aims, Communist States supported Communist revolutions worldwide, and Communist rebels employed irregular warfare. Westerners, thus, perceived Cold War era actual wars as ‘a new kind of war’,Footnote ²¹³ in which ‘victory [was] not measurable in territorial terms or human material loss’Footnote ²¹⁴ and ‘[b]attlefronts seldom existed’,Footnote ²¹⁵ because the enemy ‘preferred terrorist tactics’,Footnote ²¹⁶ ‘rarely wore uniforms’,Footnote ²¹⁷ and consisted of globally connected forces, ‘difficult to define’,Footnote ²¹⁸ a global ‘network of … terrorists’.Footnote ²¹⁹ This history brings into perspective claims, such as those of US presidents Bush (2006) and Obama (2016), concerning: ‘an unprecedented war’,Footnote ²²⁰ whereby ‘terrorists … defend no territory … wear no uniform’;Footnote ²²¹ a ‘new reality’Footnote ²²² of ‘terrorist networks’.Footnote ²²³

If you still think temporocentrism is overrated, consider the following pronouncements:

1. 1. A ‘new kind of war’ (1795, a French Convention Member, The French Revolution);Footnote ²²⁴

2. 2. The ‘case was exceptional’ (1818, treaty concerning Napoleon’s detention);Footnote ²²⁵

3. 3. A ‘somewhat novel kind of warfare’ (1863, US Minister to the UK Adams, privateer attacks during the American Civil War);Footnote ²²⁶

4. 4. ‘All the wars I can remember were “unprecedented”’ (1916, Russian General Skugarevski, regarding the 1853–6 Crimean War, 1866 Austro-Prussian War, 1870–1 Franco-German War and the First World War);Footnote ²²⁷

5. 5. ‘[T]he most novel kind of warfare that history can record’ (1900, British Colonel Brookfield, Second Boer War);Footnote ²²⁸

6. 6. An ‘unprecedented war’ (1916, President Wilson, the First World War);Footnote ²²⁹

7. 7. A ‘moment unprecedented’ (1941, President Roosevelt, the Second World War);Footnote ²³⁰

8. 8. A ‘new kind of war’ (1949, influential reporter, Anne O’Hare-McCormick, Greek Civil War);Footnote ²³¹

9. 9. ‘The war in Vietnam is a new kind of war … not another Greece’ (1965, US State Department);Footnote ²³²

10. 10. ‘The world has changed’ (1983, US President Reagan, the Beirut suicide attack and US intervention in Grenada).Footnote ²³³

The similarity between these statements goes beyond contemporary temporocentrism. In all these sources, one or more of the following provoked the ‘unprecedented war’ cry: technological innovations; irregular fighting; transnational war aims; globalisation; atrocities; blurred peacetime–wartime divide.

A. Westphalia

Returning to our period identification game:

1. 1. Given the predictions that we are only now nearing the Statist model’s demise, when do you think the following was written?Footnote ²⁵⁴

   [T]he improvement of communication and … transport … with its consequent interdependence and solidarity of interest between groups situated in different nations … render[s] hostility based on the lines of political geography irrelevant … State lines do not follow the lines of the respective conflicts …

2. 2. In the light of the accepted history of both ICL and NIAC law, identify the following conflict: (a) as a contemporaneous court noted, in a ruling that determined it was a ‘war’, the conflict was initiated by an ideological movement’s ‘armed forces dominated by the spirit of driving from th[eir] country or destroying all foreigners’;Footnote ²⁵⁵ (b) that armed force also wished to exterminate compatriot members of a certain religion;Footnote ²⁵⁶ (c) a multilateral international declaration deemed these forces’ ‘murde[rs], tortur[es]’, ‘massacre[s] … desecrat[ions]’, ‘pillag[e] and destr[uction]’ to be ‘crimes against the law of nations, against the laws of humanity’;Footnote ²⁵⁷ (d) the conflict was fought between the aforesaid non-State forces and a multinational allied force; (e) during the conflict, an international military tribunal tried some of the perpetrators of the atrocities;Footnote ²⁵⁸ (f) there was no state of war between the allies and the State in which the war was conducted, because that State officially considered movement members to be rebels.Footnote ²⁵⁹

The source quoted above is from 1914, demonstrating that rumours about the demise of the Statist model have been (thus far) premature (together with prophecies about novel transnational conflicts being omens for that demise).Footnote ²⁶⁰ The aforementioned war is the Boxer War (1900–1). This conflict is rightly infamous for its Western atrocities and colonialist undertones. But it was also a multinational intervention aimed at stopping the massacre of 30,000 Chinese Christians and 200 foreigners. During the war, at Pao-Ting-Fu, an international military tribunal of British, German, Italian and French judges tried some of the perpetrators of the atrocities.Footnote ²⁶¹

The accepted history requires reassessment. Until a few decades ago, it was commonly held that traditional international law had formed, following the ‘birth’ of the modern State, at the 1648 Peace of Westphalia.Footnote ²⁶² But historical research refuted the Westphalian myth, showing that the rise of States was a protracted process, having already begun in the late Middle Ages and culminating only in the late nineteenth century,Footnote ²⁶³ when the modern definition of the State was ‘doctrinally consolidated’.Footnote ²⁶⁴ This modern ‘European invocation [was then also] retrospectively backdated to the Peace of Westphalia and used to articulate an international order based on mutually recognized sovereign States’.Footnote ²⁶⁵ Positivist jurists, aiming to strengthen State sovereignty, contributed to the consolidation and back-dating.Footnote ²⁶⁶ The same aim also led them to embrace conceptual ‘sharpening of distinctions … between international and … domestic law’,Footnote ²⁶⁷ and between ‘sovereigns and individuals’.Footnote ²⁶⁸ Today the Westphalian myth has been effectively debunked, but the full implications of its falsehood have yet to be internalised.Footnote ²⁶⁹

One such implication concerns the application of international law to individuals. Historically, there was no sharp distinction between international and domestic law.Footnote ²⁷⁰ Not only piracy, but also war crimes and even felonies (murder, theft, arson, robbery, rape, etc.) were considered crimes against humanity and crimes against the law of nations, whose perpetrators were enemies of mankind; many European courts even applied universal jurisdiction to such crimes.Footnote ²⁷¹ Only under the influence of nineteenth-century Statist-positivism did Western domestic civilian judicial systems abandon this universalist view. In contrast, Western military justice systems, having primary jurisdiction over war crimes and wartime felonies, continued to consider customary international law to be a legal basis for prosecuting such crimes.Footnote ²⁷² Even a practice, dating back to medieval times, of occasionally creating joint military tribunals continued; namely, the Boxer Rebellion tribunal is far from the only pre-Nuremberg international military tribunal.Footnote ²⁷³ The 1900 Boxer Rebellion tribunal is not even the sole NIAC-related pre-Nuremberg international military tribunal (which indicates that not only ICL but also NIAC law has a longer history than assumed); such NIAC-related tribunals were created, for example, in 1839–46,Footnote ²⁷⁴ 1882,Footnote ²⁷⁵ 1912Footnote ²⁷⁶ and 1918.Footnote ²⁷⁷ Until the 1950s, alongside sources echoing the Westphalian narrative (depicting ICL as an innovation), other sources considered ICL a long-standing practice.Footnote ²⁷⁸ This narrative of continuity was forgotten during the Cold War, but norms originating from the aforesaid centuries-long practice are still part of ICL today.Footnote ²⁷⁹

A second insufficiently internalised implication of the Westphalian falsehood concerns the application of international law to non-State entities. Originally, the (then) European system of international law was inapplicable to supposedly ‘uncivilised’ (i.e., non-Western) nations. According to the Westphalian myth, international law globalised gradually as evermore non-Western nations became States.Footnote ²⁸⁰ Presently, a competing narrative is gaining support, claiming that international law globalised rather abruptly at some time between the late nineteenth and mid-twentieth century, after Westerners abandoned their xenophobic ‘standard of civilisation’ for the application of international law.Footnote ²⁸¹ The criterion adopted instead was statehood: a form of sovereignty that non-Western nations could attain.Footnote ²⁸²

But history is less consistent and statehood-oriented than both narratives above assume. Throughout most of international law’s history, various legal approaches existed concerning its application to non-Western nations.Footnote ²⁸³ The following are especially significant: (a) non-application approaches that authorised total war against ‘uncivilised’ nations based on the idea that international law did not apply there;Footnote ²⁸⁴ (b) punishment approaches that prescribed total war against ‘uncivilised’ nations as punishment for their supposed violation of international law;Footnote ²⁸⁵ (c) adaptation approaches that aimed to adapt the (then) Western international law to cross-cultural interactions (including wars);Footnote ²⁸⁶ (d) minimalist-discretionary approaches that substituted the robust international law with an imperfect obligation to apply ‘such rules of justice and humanity as recommend themselves in the particular circumstances of the case’.Footnote ²⁸⁷ Each approach was often considered by its supporters not only as lex ferenda (aspired law), but as lex lata (the actual existing law).

Historical evidence indicates that the likelihood that (some measure of) international law would be applied to wars against non-Westerners was influenced not only by case-specific, non-legal considerations, but also by the fluctuating support for competing legal approaches.Footnote ²⁸⁸ Support for adaptation approaches increased after the religious wars era (because that era’s trauma increased aversion towards total war doctrines), culminating in the late eighteenth century.Footnote ²⁸⁹ Even later, that support remained considerable under the influence of a legal position that perceived both Western and non-Western communities as sovereign entities, simply of ‘different sorts’;Footnote ²⁹⁰ the latter supposedly formed based on ‘race or nationality rather than territory’.Footnote ²⁹¹ In the late nineteenth century, however, support for the applicability of international law to cross-cultural interactions drastically decreased under the influence, among other things, of rising support for the Statist-positivist position that the territorial State was the sole ‘form of political [sovereign] authority’Footnote ²⁹² and the sole ‘subject [of] international law’.Footnote ²⁹³ The position considering international law as applicable only to Western sovereigns is not identical to the position considering it to be applicable only to States. But in an era in which very few non-Western sovereigns were considered by Westerners as having State attributes, the convergence between these two positions was considerable. Although these two positions enjoyed considerable support at the turn of the century, support for either was never unanimous, as demonstrated by the following two issues:

1. 1. In some early twentieth-century interactions between Western States and non-Western, non-State entities, Westerners (or even both sides) considered as the applicable law one of the older approaches according to which international law does address such interactions in some manner (i.e., minimalist-discretionary, adaptation or punishment approaches). One example is the Boxer War, as the joint military tribunal at Pao-Ting-Fu demonstrates.Footnote ²⁹⁴ Another example is the so-called ‘Indian’ wars; until about 1920, in some wars between the United States and Native American forces, the United States applied an adaptation approach and deemed much of IHL applicable, considering itself duty-bound to grant POW status to captured Native American combatants, and authorised to punish only those who committed certain core war crimes.Footnote ²⁹⁵

2. 2. Strong opposition to the Statist-positivist conceptualisation of the State and of international law appeared soon after the doctrinal consolidation of that conceptualisation. Rising support for State-sceptic positions was influenced by the creation of international legal organisations (notably, the 1899 and 1907 Hague Conferences, and the League of Nations in 1920) and by the contribution of hardline Statism to the outbreak of the First World War.Footnote ²⁹⁶ New international legal organisations (in which some non-Western sovereigns participated) and Western First World War barbarities also increased support for positions proclaiming international law’s equal application to all nations, which helped some non-Western sovereigns attain Statehood.Footnote ²⁹⁷ However, not all non-Western entities attained statehood; regarding conflicts with such non-Western entities, the rising ‘equal application’ and ‘State-sceptic’ positions contributed to the eventual abolition of total warfare approaches and to the gradual merger of the minimalist-discretionary and adaptation approaches with similar legal approaches to internal conflicts.Footnote ²⁹⁸

Jordan Paust noted:Footnote ²⁹⁹

However, not only Statist-positivists propagated the myth of traditional international law being Statist (originally an element of the Westphalian myth). Many State-sceptics also concurred, though they thought that the Statist world order was about to expire.Footnote ³⁰⁰ Due to the propagation of that myth by both camps, we tend to overlook that the Statist-positivist position was never universally adopted and forget the long history of various contemporary international laws that originate in positions that competed against the Statist-positivist position, such as various ICL norms and the adaptation approach. Our recollection of the past remains ‘the memory of an illusion’.Footnote ³⁰¹

B. NIAC Law

The accepted history of NIAC law is even less accurate than that of international law’s application to non-Westerners. Admittedly, the rise of nineteenth-century Statist-positivism led to strong support for the position deeming international law to be inapplicable to internal wars, unless a State made a discretionary decision to apply it. But the belief that this was the traditional international law is simply untrue; the original basis for the authority to wage total war against rebels was the belief that rebellion was a criminal violation of international law.Footnote ³⁰² Moreover, the horrors of the religious wars motivated subsequent attempts to restrain total warfare, yielding a doctrine where, under certain conditions in internal wars – mainly, intense fighting and high-level organisation – a ruler had a legal duty to recognise belligerency. Cases in which this duty approach was applied can be found from the seventeenth century through to the mid-twentieth century. This approach competed with the ‘unlimited discretion’ approach, with support for the perception of either approach as lex lata fluctuating over time.Footnote ³⁰³

Because historically there was no sharp distinction between international and domestic law, all situations meriting ‘martial law’ (aka ‘state of siege’), including insurgencies, were regulated by the law of nature and nations, in the sense that the natural law principle of necessity applied.Footnote ³⁰⁴ Some understood this principle as allowing the ruler’s forces to do as they pleased, but others regarded it as placing such forces under an imperfect obligation of moderation.Footnote ³⁰⁵ During the nineteenth and early twentieth centuries, Western States gradually shifted from international to domestic law for regulating emergencies short of war.Footnote ³⁰⁶ Yet, parallel to that shift, support increased for approaches that applied IHL, at least partially, in NIAC, even if the non-State side did not achieve belligerent status. By the late nineteenth–early twentieth century, the law pertaining to such NIAC had come to resemble the law pertaining to wars against non-State, non-Western entities. The following approaches competed for support: (a) an approach that authorised conducting internal wars as total war, on the basis of a Statist-positivist premise that international law did not apply to such wars, although in some cases still containing remnants of the idea that rebellions violate international law;Footnote ³⁰⁷ (b) a minimalist-discretionary approach, rooted in the imperfect obligations of necessity and humanity, which prohibited exceptionally cruel, clearly unnecessary measures (described by the Institut de Droit International, in 1900, as lex lata);Footnote ³⁰⁸ (c) an adaptation approach, according to which ‘parties to … an insurrection shall observe, as far as possible, the rules of civilized warfare’ (described by Wilson in his 1900 State practice survey, as lex lata).Footnote ³⁰⁹

Just as the NIAC-related minimalist-discretionary approach was a context-specific application of IHL’s core principles, the NIAC-related adaptation approach was, likely, not aimed at creating a distinct IHL for internal wars, but rather a manifestation of the more general adaptation attitude discussed earlier. That general adaptation attitude, you may recall, is aimed at addressing the unavoidable absence of a neat fit between wartime reality and war-related legal classifications. Accordingly, the NIAC-related adaptation approach generally holds that in any non-inter-State conflict, ‘regular’ IHL must be applied as far as possible (namely, subject to the adaptations that are truly required by the particular attributes of the conflict); as James Garner noted in 1937: ‘the statement … that the conduct of civil war is not governed by the same laws that apply to international war cannot be accepted – at least not without qualifications’.Footnote ³¹⁰ This conceptualisation of IHL is quite different from that of the torture memos (and of many others today), which consider NIAC law and IAC law two distinct corpora.Footnote ³¹¹

The attributes of the Spanish Civil War, designated by the torture memos as the birthplace of NIAC law, also weaken the memos’ conclusions. Contemporaries considered that war to be part of a larger clash between global ideologies and it commonly crossed borders.Footnote ³¹² During that war, the prevailing view regarded the adaptation approach lex lata.Footnote ³¹³

The origins of NIAC law in the law pertaining to both internal wars and wars against non-Westerners, further weakens the torture memos’ conclusions. Non-Westerners, such as Native American forces, were commonly perceived as belligerents that ‘pay no regard to a mere imaginary [State] line’.Footnote ³¹⁴ Moreover, as Geoffrey Corn noted (having nineteenth- and twentieth-century wars against non-Westerners in mind):Footnote ³¹⁵

Common Article 3 of the 1949 Geneva Conventions clearly intends to abolish total war approaches. It contains elements of the minimalist-discretionary approach and of the adaptation approach by: (a) defining its prohibitions as duties that ‘each Party to the conflict shall be bound to apply, as a minimum’; and (b) adding that ‘[t]he Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention’. The Article’s history, however, does not indicate an intention to form two distinct IHL corpora.Footnote ³¹⁶

More important, even after 1949, the adaptation approach was applied in various cases, such as Tsemel in Israel (1983).Footnote ³¹⁷ In 1981, the Israeli army invaded Lebanon as part of a conflict between Israel and non-State forces that were launching attacks from Lebanon. Members of these non-State forces petitioned the Israeli Supreme Court, claiming a lack of legal basis for their detention by the Israeli army. The Israeli government, similarly to the British government in Serdar Mohammed, responded that the petitioners’ detention on Lebanese soil was sanctioned by customary IHL.Footnote ³¹⁸ The petitioners argued that no IHL authority exists to detain civilians, except in occupied territories. The Court rejected this argument, holding that they were not peaceable civilians but unprivileged combatants, and that IHL has always provided State forces with authority to detain such combatants.Footnote ³¹⁹

In a succeeding case, Al-Nawar (1985), the Court similarly held that:Footnote ³²⁰

Statements like those made in Tsemel and Al-Nawar are currently made by those who hold that States have an inherent legal authority to detain captured enemy fighters until the conflict ends, irrespective of whether the captured enemy fighters are regular soldiers or unprivileged combatants, and irrespective of conflict classification (the only difference is that POWs have various privileges that detained unprivileged combatants do not).Footnote ³²¹ But that was not Tsemel’s ruling; it ruled that because the State did not grant these individuals POW status, nor did it prosecute them, only one legal basis remained providing authority to detain them: the IHL concerning detention of protected persons in occupied territories, as it applies, subject to the necessary adaptations, to non-occupation situations.Footnote ³²² That law is quite constraining, demanding periodic review of each detainee’s case and the release of anyone no longer personally posing a risk.Footnote ³²³

Tsemel’s ruling is preferable to the approach that IHL authorises States to detain unprivileged combatants (like enemy State soldiers) until hostilities end, but without POW privileges. The rationale behind detaining captured enemy combatants is to prevent them from serving the enemy. When States fight, they often find the end of active hostilities a congenial moment for the release of each other’s detainees, because at that point neither side has strong fear of immediate threat from enemy soldiers. Occasionally, this mutual benefit could apply in cases where the State accords POW status to captured non-State enemy fighters, because some non-State forces can gain considerable political benefits from having their fighters treated as POWs, enabling States to incentivise such forces to adopt some State-like qualities.Footnote ³²⁴ However, in many conflicts, this is unlikely to become the case irrespective of whether the State accords POW status to the non-State fighters (which, also, means that States do not have an incentive to do so).Footnote ³²⁵ For various reasons, uncertainty regarding the end of a conflict is even greater in conflicts involving non-State forces than in inter-State wars. Hence, in conflicts involving non-State forces there is often no temporal benchmark to make prisoner release mutually beneficial. This means that authorising States to detain captured non-State fighters until hostilities end is likely to result in indefinite detention. Many captured non-State fighters would remain detained long after their personal risk of returning to serve the enemy abates.

Note that Al-Nawar ruled that IHL regarding an enemy State property, rather than private civilian property, applies to terrorist organisations’ property, subject to the necessary adaptations.Footnote ³²⁶ Nevertheless, Tsemel and Al-Nawar are not contradictory; both applied the adaptation approach. The Tsemel ruling, regarding the legal basis for the detention authority, relied on the following note from the contemporary British Manual of Military Law: ‘Although the rules here discussed apply primarily in “occupied territory”, they should nevertheless be observed, as far as possible, in areas through which troops are passing and even on the battlefield.’Footnote ³²⁷ Moreover, Tsemel considered its ‘as far as possible’ (adaptation) approach to be deriving from a more general ‘trend … that has … found its expression in the modern law of war’.Footnote ³²⁸ Al-Nawar similarly described its (adaptation) approach as a legal trend – developed because too many cases lacked a neat fit between the wartime reality and its legal classifications – that demands the application of some or all of IHL to circumstances that do not constitute war senso stricto.Footnote ³²⁹

The United States also adhered to the adaptation approach. Since the 1960s, the US Department of Defense, Law of War Program Directives (and similar military instructions) have stated:Footnote ³³⁰

The US adherence to the adaptation approach is demonstrated in this Vietnam era statement by American military lawyer, Fred Green:Footnote ³³¹

The following Vietnam era statement by US Deputy Legal Advisor, George Aldrich, further reveals a significant element of the US understanding of that approach:Footnote ³³²

As this statement demonstrates, unlike Israel, US reliance on the adaptation approach went as far as to grant POW status to combatants who did not meet the treaty conditions.Footnote ³³³ The United States applied a similar approach regarding POWs in nearly all conflicts between 1949 and 2000, including Korea, Vietnam, Panama, Somalia, Haiti and Bosnia.Footnote ³³⁴

The application of this approach regarding POWs in each of the aforesaid conflicts was discussed in one of the torture memos (the Bybee Memo).Footnote ³³⁵ The memo dismissed it as merely the result of conflict-specific policy decisions, and not a legal precedent (exhibited through continuous State practice) preventing categorical denial of POW status to all Taliban and Al-Qaeda fighters.Footnote ³³⁶ At first glance, US Department of Defense directives since 1998 seem to support classifying the adaptation approach as a mere non-obligatory policy; these directives (like some,Footnote ³³⁷ but not all,Footnote ³³⁸ earlier directives) place the instruction, to comply with IHL irrespective of an operation’s classification, under a ‘Policy’ heading.Footnote ³³⁹

But it is wrong to dismiss past applications of the adaptation approach as mere non-legal, non-obligatory policy actions. The Israeli Supreme Court clearly considered the application of the adaptation approach a legal duty. The same holds true for the US pre-torture memos position. The torture memos devoutly applied the hardline Statist-positivist conceptualisation of law, policy and morality as distinct concepts; thus, the classification of the ‘adaption approach’ as ‘policy’, reflexively led the memos to deem that approach non-legal and non-obligatory. In contrast, ‘warrior’ positions (with roots in nature-of-things jurisprudence) regard imperfect obligations, like chivalry, as obligatory legal norms and maintain a less sharp distinction between law, policy and morality. For such positions, applying the adaption approach is both a policy action and a legal duty: policy action, in the sense that commanders are viewed as having considerable discretion in determining the manner and extent of IHL application in each non-inter-State conflict (after all, it is an imperfect obligation); legal duty, in the sense that commanders are considered to be legally duty-bound to apply the adaptation approach and in the sense that blatant grave violations of that obligation merit legal sanctions. Given the strong influence of the ‘warrior’ position and the chivalry principle on US military culture, it is doubtful that most US military professionals would have regarded the adaptation approach as mere non-legal policy. Indeed, within the Bush administration, Secretary of State Colin Powell, a former Chairman of the Joint Chiefs of Staff, most strongly opposed the Bybee Memo’s categorical denial of POW status. Powell rejected the memo’s presumption of a sharp distinction between law and policy, arguing that declaring the Geneva Conventions inapplicable would ‘reverse over a century of US policy and practice’,Footnote ³⁴⁰ and that ‘while no one anticipated the precise situation that we face, the GPW [the Third Geneva Convention] was intended to cover all types of armed conflict and did not by its terms limit its application’.Footnote ³⁴¹ Department of State Legal Advisor William H. Taft added: ‘even in a new sort of conflict the United States bases its conduct on its international treaty obligations and the rule of law, not just its policy preferences.’Footnote ³⁴²

Powell’s demand that the Bybee Memo be reconsidered only resulted in yet another torture memo:Footnote ³⁴³

Some consider the above paragraph to be the strongest demonstration of an element of truth in the post-9/11 call for a new, laxer IHL.Footnote ³⁴⁴ However, there is nothing new in its line of reasoning that (a) terrorism is a new kind of war that (b) obviates existing IHL, as evident from the fact that (c) torture, which existing IHL prohibits, must be used in such a war, (d) because IHL has become irrelevant in the context of that new war, it no longer applies and, therefore (e) torture is permitted when fighting terrorists. Such a line of reasoning was adopted by French forces in Algeria and advocated by some in the United States during the Vietnam War.Footnote ³⁴⁵ But the US government during Vietnam rejected it and considered torture illegal;Footnote ³⁴⁶ moreover, it stressed the need to liberalise treaty criteria for POW status eligibility because ‘[w]hen viewed in the light of [contemporary] guerrilla war … some of these criteria seem a bit quaint’.Footnote ³⁴⁷ The above paragraph, therefore, does not demonstrate an element of truth in the torture memos’ reasoning, rather only the stark contrast between those memos and the earlier US allegiance to the adaptation approach. The issue is not the ‘quaintness’ of existing IHL (which, often actually stems from the nearly inevitable incomplete fit between wartime reality and war-related legal classifications), but one’s response to it.

The Bybee Memo relegated more than just POW status eligibility to the entirely discretionary realm of policy decisions. For example, it asserted that:Footnote ³⁴⁸

This ‘policy basis’ for war crime prosecution is incompatible with ICL’s accepted normative justifications, and constitutes downright victor’s justice, in the light of the torture memos’ assertion that the ‘new [war] paradigm renders obsolete Geneva’s strict limitations on the questioning of enemy prisoners’.Footnote ³⁴⁹ More importantly, there is a contradiction between this legal reasoning and the one presented only three months earlier, in another memo, specifically addressing the legal basis for US authority in the war against Al-Qaeda and the Taliban ‘to try and punish terrorists’:Footnote ³⁵⁰

You (the reader) were probably somewhat baffled earlier by my insistence on discussing the bygone ‘Indian’ and Boxer wars. But I did so primarily because of the above-quoted recent application of the adaptation approach (not my history fetish).

The torture memos did not persuade everyone to adopt their position regarding the law applicable to transnational wars, but they were successful in framing the legal discourse. This success is evident in the wide acceptance of the characterisation of transnational conflicts as novel, forcing international jurists to endlessly struggle ‘against the claim that [wartime] international law was “quaint”’.Footnote ³⁵¹ Success is further evident in the adaptation approach being somewhat forgotten, despite being a long-standing legal approach specifically developed to address the unavoidable absence of a neat fit between war-related situations and their legal classifications. The adaptation approach’s long history and importance were not enough to prevent the torture memos from framing the discourse in a manner that buried the adaptation approach under a pile of misleading narratives (many of them pre-existing in IHL). As a result, excavating it required a journey into the distant past, even though it still enjoyed significant support as recently as the aftermath of 9/11 (as the above-quoted memo demonstrates).

Stated differently, I am not attempting to resurrect an archaic legal approach, rather to point attention to an approach that until quite recently enjoyed considerable support. Even today, this approach still enjoys some supportFootnote ³⁵² and cases still exist in which it is applied.Footnote ³⁵³ Yet, as such current sources demonstrate, the following important aspects of the adaptation approach were wholly forgotten: its long history; its pivotal role in IHL development; and its jurisprudential footing. Without recollection of these aspects (which this chapter aims to retrieve), support for the adaptation approach has declined, replaced by a classification obsession. That obsession is bound to increase uncertainty and disagreements, because it fails to acknowledge the inevitable absence of a neat fit between war-related situations and their legal classifications. That obsession, due to its rigidity, is also bound to hinder IHL development, opening the door to claims of increasing gaps in IHL. Therefore, re-embracing the (never fully abandoned) adaptation approach can reduce legal uncertainty and disagreements, while providing IHL with a normative tool, necessary for its development and adaptability to changes.

C. Lotus

An alternative narrative is, gradually, superseding the Westphalian myth; it insists that ‘traditional’ international law only addressed States, but posits that that traditional law was ‘born’ in the nineteenth century (not 1648).Footnote ³⁵⁴ Wartime conduct used to be regulated by moral (non-legal) norms and force-specific (domestic) legislation and, only following IHL’s nineteenth-century treaty codification did these non-legal and domestic ‘rules of war become laws of war’.Footnote ³⁵⁵ IHL’s treaty codification, thus, marks a conceptual framework shift, transforming a customary regime of (status-based and universal) individual ‘natural’ obligations and (to a lesser degree) rights, into a regime of formal legal rules between States.Footnote ³⁵⁶ The Lotus rulingFootnote ³⁵⁷ is considered a primary manifestation of that Statist-positivist ‘traditional international law’,Footnote ³⁵⁸ by holding that States ‘may act in any way they wish as long as they do not contravene an explicit prohibition’.Footnote ³⁵⁹

The torture memos, proclaiming commitment to ‘traditional’ international law, asserted that because no IHL explicitly addresses transnational wars, States can do as they wish.Footnote ³⁶⁰ Even moderate Statists, based on that history, hold that IHL still ‘does not confer rights or impose duties on individuals’,Footnote ³⁶¹ rather consists of ‘obligations imposed on states’.Footnote ³⁶² Therefore, IHRL and IHL have ‘distinct … conceptual frameworks’.Footnote ³⁶³

IHRL-oriented approaches agree that IHL traditionally had a Statist conceptual framework, but proclaim another shift: in the more recent IHL treaties, some articles are phrased as conferring individual rights, shifting IHL to an individual rights-based framework.Footnote ³⁶⁴ Presumably, IHRL’s modern rise also produced a parallel framework shift throughout international law.Footnote ³⁶⁵ IHRL’s rise and said related framework shifts (along with the morality of rights) further demand interpreting additional IHL norms, not phrased as individual rights conferring, as conferring such rights.Footnote ³⁶⁶ IHRL’s rise also diminished (if not abolished) Lotus, because universal IHRL applies to all issues previously ungoverned by international law.Footnote ³⁶⁷ Jurists, like my colleague, Helen Duffy, hold that this not only rebuffs torture memo-like positions, but also the adaptation approach, which addresses perceived gaps in IHL by analogising from related IHL. They assert that if IHRL universally applies, then a gap in IHL no longer means a gap in international law and, therefore, recourse to analogies is unjustified.Footnote ³⁶⁸

But, as critics point out, even today there are only few individual rights-conferring IHL treaty articles.Footnote ³⁶⁹ Also, oddly, a framework shift is not similarly concluded from the even greater amount of individual obligations-imposing IHL treaty articles; such IHL (presumably) remains exceptional.Footnote ³⁷⁰ Both issues indicate that the claimed rights-oriented shift is less an impartial account of the law and more an attempt to bring about such a shift.Footnote ³⁷¹

The account of a nineteenth-century Statist conceptual framework shift is, likewise, inaccurate. Historically, force-specific legislation was not entirely domestic, because it was expected to reflect the unwritten, international laws of war.Footnote ³⁷² These unwritten norms were not mere rules of ethics, but legal rules; violators of these unwritten laws of war were often punished, even in the absence of any formal legislation.Footnote ³⁷³

Because jurisprudential diversity was always extensive: ‘[in] most eras … practices and customary law constituted a more important source for the law of nations’;Footnote ³⁷⁴ especially for the laws of war.Footnote ³⁷⁵ Thus, between these past unwritten laws and current IHL, there is a ‘remarkable continuity’.Footnote ³⁷⁶ ‘Most of the actions today outlawed by the Geneva Conventions have been condemned in the West for at least four centuries.’Footnote ³⁷⁷

The belief that international law (IHL included) was ‘born’ in the nineteenth century originated in that century. Some contemporary Statist-positivists asserted that international law, including the ‘so-called laws of war[,] are mere practices … [that] impose, at most, moral and not legal duties’.Footnote ³⁷⁸ More moderate Statist-positivists also rejected the legal obligation of customary international law, but considered treaty international law obligatory and supported treaty codifications.Footnote ³⁷⁹ Many further endorsed the Statist-positivist view of international law as only addressing States (not individuals), as evident in the Statist phrasing of most treaty IHL.Footnote ³⁸⁰

But positivism was never the only jurisprudential influence on IHL, therefore, the transition to a Statist framework was never more than partial. Non-positivist influence is evident in the adoption (beginning with the Martens Clause) of treaty IHL that asserts the continued obligatory force of customary IHL and IHL principles.Footnote ³⁸¹ It is, further, evident in ICL’s survival (as seen through continued war crime prosecution of individuals based on the customary unwritten laws of war).Footnote ³⁸² Accordingly, when defendants at Nuremberg claimed that they were not liable for violating the State-addressed Hague Regulations, the tribunal responded:Footnote ³⁸³

IHL’s codifying treaties, therefore, did not abolish customary IHL rules and principles. Likewise, treaty IHL (primarily) Statist conceptual framework did not abolish, rather supplemented the longer-standing individual obligations-oriented framework; accordingly, the Nuremberg Tribunal asserted:Footnote ³⁸⁴

Thus, IHL has remained ‘Binding on States and Individuals’.Footnote ³⁸⁵

The persistent non-positivist influence on international law is further demonstrated by the following neglected fact: Lotus was ‘ruled in six-six split with President Huber casting the deciding vote’.Footnote ³⁸⁶ Even at the height of the ‘traditional’ era, the core Statist-positivist ‘Lotus’ precept was contested. The six other judges expressed a non-positivist perspective that a gap does not necessarily exist whenever no explicit rule applies, because international law consists not only of rules but also of principles, and often one should ‘invoke [these] “soft” norms, or draw on analogous areas of the law to find that, in fact, there is no gap in the law’.Footnote ³⁸⁷ That non-positivist perspective is also expressed in the adaptation approach and in the Martens Clause.

Indeed, the Martens Clause is commonly considered IHL’s rejection of the Lotus principle.Footnote ³⁸⁸ Based on the clause, even before treaty IHRL, jurists deemed illegal torture memo-like (‘Lotus-ian’) assertions of States being wholly unconstrained in issues ‘[un]anticipated by the Convention[s]’.Footnote ³⁸⁹

The long-standing influence of such non-positivist perspectives also means that, with regard to certain issues, IHRL advocates wrongly assume a gap in non-IHRL international law. Despite the non-existence of clear-cut legal rules in such cases, a gap does not exist (and did not exist even before modern IHRL) because these issues have long been regulated by normative principles and analogising legal approaches. One such issue that has been discussed throughout this chapter is the perceived IHL gaps that result from the nearly inevitable incomplete fit between wartime situations and the legal concepts aimed at addressing them. These are merely perceived gaps and not actual gaps because a long-standing IHL norm exists to address such incomplete fits: the adaptation approach. That norm has long played a pivotal role in IHL development, leading to (among other things) the current considerable convergence between the IHL in IAC and in NIAC. Abandoning it would hinder that convergence trend. More generally, it would harm IHL’s ability to adapt to change.

A. US and International Law

Before 9/11, IHL discourse was rather formalist.Footnote ⁴²⁷ Also, the domestic US legal system ascribed considerable primacy and respect to IHL.Footnote ⁴²⁸ After 9/11 this changed because the United States, as expressed in the torture memos, began to claim that: (a) it ‘is faced with a new war … materially different from any [previous] war … [requiring] either new law or no law’;Footnote ⁴²⁹ (b) ‘[i]nternational law does not apply as law, but rather (at most [and if at all]) as a matter of policy’.Footnote ⁴³⁰ Thus, the United States embraced legal positions that either dismiss wartime international law (as non-existent or not having the obligatory force of law), or assert complete authority to speak in its name. Additionally, two months after 9/11, the term ‘lawfare’ was coined by a high-ranking American officer.Footnote ⁴³¹ Although this term is sometimes treated a neutral reminder that legal argumentation and advocacy are necessary for attaining one’s wartime aims, it is mainly used as an accusation for inappropriate political manipulation of international law and wartime events.Footnote ⁴³² In some cases, lawfare accusations have merit.Footnote ⁴³³ In others, such accusations are merely a symptom of the lawyerly tendency to confuse one’s lex ferenda with the actual lex lata (especially when the latter is ‘objectively’ unclear) and, consequentially, suspect that anyone thinking otherwise is intentionally distorting the law. Many cases are somewhere in between the two possibilities and their classification to either is likely to be disputed. But the United States bluntly exaggerated with its lawfare accusations, calling anyone criticising its disregard of wartime international law politically biased.Footnote ⁴³⁴ The US Ambassador to the UN, for example, stated that ‘the goal of those who think that international law really means anything … [is] to constrict the United States’.Footnote ⁴³⁵ Even advancing international law-based justifications for US actions by the United States was merely considered ‘a means of justifying [US] actions … in the world of international politics’.Footnote ⁴³⁶ An embrace of such legal positions by the most powerful member of the international legal community had to have a destabilising effect and invite counter-actions by other members. A core jurisdictional struggle was inevitable.

As noted, a legal system’s core legal classifications are main battlegrounds during core jurisdictional struggles. Indeed, since 9/11, legal strategies have increasingly depended ‘on diluting the boundaries between various fields of international law and diminishing the clarity of binding rules and fields of legal application’.Footnote ⁴³⁷ Thus, the current indeterminacy crisis concerning wartime international law distinctions is largely a manifestation of a core jurisdictional struggle over the power and authority to speak in the name of wartime international law.

Core jurisdictional struggles have grave side-effects. During a struggle the normative universe is inflicted with extensive uncertainty and cross-faction clashes. Even if won by a certain faction, such a struggle often results in the alienation of other factions, reducing their readiness to defer to the legal system.Footnote ⁴³⁸ But this does not mean that a core jurisdictional struggle should never be initiated; for the right cause, the aforesaid side-effects are worthwhile.

Therefore, the question must be asked: why should we not embrace torture memo-like, hardline Statist positions? Many believe that ‘attempts to regulate warfare based on humanitarian principles [are] doomed … and may exacerbate … violence’.Footnote ⁴³⁹ If true, are we not foolish to commit ourselves to IHL?

‘Scepticism about the value of the law of war is nothing new.’Footnote ⁴⁴⁰ Carl von Clausewitz similarly believed that contemporary IHL did not truly restrict warfare, and opposed adopting restrictive IHL, because, in war, ‘mistakes which come from kindness are the very worst’.Footnote ⁴⁴¹ German General von Moltke stated in 1880 that IHL plays a limited role in lessening the evils of war and might even be counter-productive, because ‘the greatest [humanitarian] benefit in war is that it be [quickly] terminated’.Footnote ⁴⁴² During the nineteenth and early twentieth century, such positions influenced IHL, giving rise to considerably supported doctrines that promoted unconstrained warfare.Footnote ⁴⁴³

But as a 2011 US military manual observed, the influence of such positions facilitated horrors that mark ‘a dark era for the rule of law’.Footnote ⁴⁴⁴ As for von Moltke’s claim, empirically, ‘nobody has demonstrated that the presence or absence of IHL norms … causes or inhibits a speedy end to a war’.Footnote ⁴⁴⁵ Unconstrained warfare had in some past cases helped to achieve victory against non-State enemies; but in many others it backfired, only increasing popular support for the non-State enemy.Footnote ⁴⁴⁶ More generally, history demonstrates that often, once the commitment to IHL is abandoned, soldiers are swept up by the violence and commit horrific vengeful actions that are harmful to the war effort.Footnote ⁴⁴⁷

Hardline Statist positions also undervalue IHL. A 2015 US military manual observed: ‘Although critics of the regulation of warfare cite examples of violations of the law of armed conflict as proof of its ineffectiveness, a comprehensive view of history provides the greatest evidence of [its] overall validity.’Footnote ⁴⁴⁸ Past experience demonstrates that IHL moderates wartime actions more often than many assume.Footnote ⁴⁴⁹ The under-appreciation of many IHL successes is probably the consequence of two related psychological biases: the ‘availability heuristic’ that leads individuals to overestimate the occurrence of vivid events (e.g., war crimes);Footnote ⁴⁵⁰ and the tendency to attribute insufficient importance to events that have not taken place (‘non-events’), such as most cases in which IHL was not violated.Footnote ⁴⁵¹ In sum, history illustrates that hardline Statist positions underestimate IHL’s validity, overestimate the benefits of total warfare, and disregard the almost certain large-scale horrors of making no attempt to legally restrain warfare.

B. The Second Eye of the Storm: IHRL

As previously mentioned, popular history wrongly assumes that traditional international law did not address individuals. Its prevalence leads even most IHRL advocates to disregard pre-mid-twentieth-century influences of rights jurisprudence on IHL. The stronger influence of other jurisprudential narratives notwithstanding, over the centuries, various rights-oriented jurisprudential narratives influenced IHL.Footnote ⁴⁵² But something has recently changed in that influence, because of the second instigator of the current core jurisdictional struggle: hardline IHRL advocacy rooted in a vision of IHRL as being at ‘the heart of [all] international law’.Footnote ⁴⁵³ In IHL, this vision has found several expressions.

First, some IHRL advocates, like hardline Statists, reject the ability of international law to regulate combat behaviour. International law, they hold, should be as constraining as possible, because its only effective use is in politically denouncing and pressuring State agents to cease participating in wars. Extensively applying IHRL to wartime actions can enhance wartime international law as a denunciation means.Footnote ⁴⁵⁴ Although they would rarely admit it, some such IHRL advocates allow themselves to ‘creatively’ interpret legal norms and even the case-specific facts, so as to increase their ability to denounce State agents.Footnote ⁴⁵⁵ Such manipulations, which often accuse the relevant State agents of war crimes, have the potential to instigate a core jurisdictional struggle if used extensively, because even State agents are likely to push back when increasingly vilified. Additionally, such manipulations can turn their makers’ disbelief in IHL’s validity into a self-fulfilling prophecy. Research indicates that soldiers are more likely to abide by IHL when they believe that it contains moral laws originating in a fair system.Footnote ⁴⁵⁶ Denunciation-motivated political manipulation of the law and facts can diminish soldiers’ perception of IHL as such. Because of such concerns, traditionally, humanitarian NGOs, such as the ICRC, have been reluctant to use IHL as a means of denunciation.Footnote ⁴⁵⁷ But, rights-oriented organisations began making such use of IHL in the 1960s–1970s; both the influence of these organisations and their denunciation-use of IHL increased in the 1990s, and has been further increasing since the 2000s.Footnote ⁴⁵⁸ To be clear, too many denunciations are justified and most IHRL advocates do not support political over-manipulation of wartime law and facts. However, such denunciation-motivated manipulations have increased and that has contributed greatly to the current crisis: weakening IHL’s normative force and serving as an excuse for hardline Statists to respond in kind.

Secondly, many IHRL advocates do believe that international law can influence combat behaviour, though they too believe that IHL is insufficiently effective in diminishing wartime suffering. Hence, they hold that IHRL should replace IHL in regulating wartime conduct.Footnote ⁴⁵⁹ Such views also have the potential of instigating a core jurisdictional struggle if a strong attempt is made to implement them, because they try to generate ‘not merely a shift in emphasis[,] but a regime change’.Footnote ⁴⁶⁰

An ostensibly more moderate IHRL advocacy favours the co-application of IHL and IHRL.Footnote ⁴⁶¹ Its mildest version ‘only’ (a) considers IHRL the primary normative guide to interpreting IHL,Footnote ⁴⁶² and (b) interprets the lex specialis doctrine (where IHRL applies in wartime, unless barred by specific IHL) in a manner that rarely considers IHL as barring IHRL. This interpretation of the lex specialis doctrine gradually leads IHRL to become the primary normative source for addressing gaps in IHL, a role traditionally reserved for internal IHL norms (the Martens Clause principles, the adaptation approach, etc.).Footnote ⁴⁶³ Such actions are steadily changing the nature of IHL, making it increasingly rights-oriented. This ‘righting’ even increasingly leads IHRL advocates to hold that the correct way to conceptualise IHL is as ‘IHRL in Times of Armed Conflicts’.Footnote ⁴⁶⁴ Or, as my colleague Helen Duffy phrased it:Footnote ⁴⁶⁵

But, as David Luban points out, this ‘righted’ conceptualisation of IHL attempts to change the nature of IHL by retroactively reinterpreting IHL in a manner that transforms IHRL into the primary jurisprudence shaping wartime international law, disregarding other, stronger long-standing jurisprudential influences.Footnote ⁴⁶⁶ Thus, it constitutes an IHRL-motivated attempt to obtain primary, if not sole, power and authority to speak in the name of wartime international law. Therefore, both co-application and substitution approaches have the potential to instigate a core jurisdictional struggle if attempts are made to apply them extensively.

Such attempts have been made since the 1960s, with a significant breakthrough in the mid-1990s when international judicial forums began expressing support for such views.Footnote ⁴⁶⁷ Their realisation has drastically intensified since the early 2000s.Footnote ⁴⁶⁸ One likely reason for this intensification is the increasing support for rights-based moral philosophy; namely, it is possible that IHL sceptic, IHRL advocates are more influential today than in the past.Footnote ⁴⁶⁹ But other reasons have led many jurists to support extensive co-application and substitution approaches. Although the rise of modern IHRL began after the Second World War, until the 1990s the implications for a State being deemed an IHRL violator were much weaker than today.Footnote ⁴⁷⁰ IHL was also, arguably, weaker than today, nevertheless the stigma for violating IHL was non-negligible (following the trauma of the Second World War).Footnote ⁴⁷¹ Therefore, States, wishing to evade legal scrutiny often employed a legal tactic of insisting that they were involved in violence that does not constitute an ‘armed conflict’, rather ‘peacetime disturbance’ (i.e., IHRL, but not IHL, applies).Footnote ⁴⁷² Many of those wishing to counteract this evasion by States and to maximise legal scrutiny and civilian protection employed an opposite legal tactic of asserting that IHL, not IHRL, regulates borderline situations between ‘armed conflict’ and ‘peacetime disturbance’ – they preferred that tactic to expanding IHRL application because of ‘the lack of a … human rights … operational body’ (as ICRC Vice-President Pictet explained in 1975).Footnote ⁴⁷³ Ironically, after 9/11, the roles have, somewhat, switched. First, the influence of international judicial forums has been on the rise since the 1990s, and most international judicial forums to which those wishing to maximise legal scrutiny and civilian protection can, presently, turn to are regarded as having a subject-matter jurisdiction that is limited to IHRL. Secondly, the United States (and others) did not deny the existence of ‘war’ to evade legal constrains and judicial scrutiny; instead, they proclaimed engagement in a novel war that existing IHL is unfit to address. In the context of these two elements, many jurists have come to embrace extensive co-application and substitution approaches not out of a devout disbelief in IHL, rather out of fear that but for such an extensive IHRL-based framing of wartime actions, judicial scrutiny of these actions would be unavailable.Footnote ⁴⁷⁴ The fact that many have embraced such approaches for such reasons, means that they might embrace an alternative (non-IHRL) approach if it would bolster judicial scrutiny (and an attempt to present just such an alternative is made later herein). Yet, at present, the significant point is that, irrespective of the motivation behind one’s support for extensive co-application and substitution approaches, the practical result is that international judicial forums increasingly scrutinise States’ wartime actions and most of these forums are regarded as having a subject-matter jurisdiction that is limited to IHRL. As Rafi Reznik and Orna Ben-Naftali noted:Footnote ⁴⁷⁵

As wartime international law is being evermore shaped in forums where the influence of non-IHRL visions of that law is very weak, a revisionist legal interpretation is being increasingly forced upon IHL’s normative universe through institutional mechanisms that do not facilitate engagement with long-standing alternative (non-IHRL) visions. This development has been a primary cause for the current core jurisdictional struggle.

But what is wrong with granting an IHRL-oriented approach primary authority to speak in the name of wartime international law? Supporters of this move, such as my colleague Helen Duffy, believe that it would increase civilian protection.Footnote ⁴⁷⁶ Yet it actually diminishes that protection. As explained below, this counter-intuitive result stems from a core difference between IHL and IHRL: the former being obligations-based and the latter rights-based. Stated differently, like my colleague Janina Dill (though for different reasons), my analysis shows that, in wartime, compared with IHRL, ‘IHL currently offers a better, but far from morally ideal, law’.Footnote ⁴⁷⁷