Civility, Barbarism and the Evolution of International Humanitarian Law : Who Do the Laws of War Protect?

Efforts to moderate conflict are as old as conflict itself. Throughout the ages, restraint in warfare has been informed by religious and ethical considerations, chivalry and class, and, increasingly since the mid-19th century, a body of customary and treaty law variously referred to as the laws of war, the law of armed conflict (LOAC) or international humanitarian law (IHL). As they evolved from the mid-19th century, these laws were increasingly underpinned by humanitarianism, then in the mid-20th century, were assumed to be universal. But violations of these restraints are also as old as conflict itself. The history of conflict is replete with examples of exclusions from protections designed to moderate warfare. This edited volume explores the degree to which protections in modern warfare might be informed by notions of 'civility' and 'barbarism', or, to put it another way, asks if only those deemed to be civilised are afforded protections prescribed by the laws of war? Cover Half-title Title page Imrpints page Contents List of Contributors Preface and Acknowledgements List of Abbreviations 1 Introduction: Civility, Barbarism, and the Evolution of International Humanitarian Law References 2 Sieges and the Laws of War in Europe's Long Eighteenth Century Introduction 2.1 The Laws of War and Siege Violence 2.2 Siege and Sack in the Eighteenth Century 2.3 Siege and Sack in the French Revolutionary-Napoleonic Wars Conclusion References 3 All's Fair in Love and War or the Limits of the Limitations: Juridification of Warfare and Its Revocation by Military Necessity Introduction: A Splendorous Age of Juridification around 1900? 3.1 Revisiting the Master Narrative of 'Juridification' and Its Humanitarian Mission: The Need for Limits 3.2 'International Humanitarian Law': Established Obligations under a New Term? 3.3 Transnormative Constellations: Co-Operation, Co-Existence, and Collisions of Normative Orders 3.4 Collision Cases Before and After 1914: 'Not kennt kein Gebot?' References 4 Cultivating Humanitarianism: Moral Sentiment and International Humanitarian Law in the Civilising Process Introduction 4.1 Rehabilitation of the Emotions in Political Theory: Sympathetic Sentiments and Moral Imagination 4.2 From Emotional Foundations to Civilising Processes: Moral Sentiment in International Relations 4.3 The Revolution in Moral Sentiments: Civility and Sympathetic Spectators 4.4 Narrating the Horrors of War: The Humanitarian Cultivation of Sympathy Conclusion References 5 Limits to the Scope of Humanity as a Constraint on the Conduct of War 5.1 The Emergence of Humanity as a Constraint on the Conduct of War 5.2 Humanity as a Manifestation of 'Progressive Civilisation' 5.3 Prohibiting Exploding and Expanding Bullets 5.4 Two World Wars and Changing Attitudes to the Notion of Humanity as a Constraint 5.5 Challenges to the Efficacy of the Constraining Effect of Humanity References 6 The State, Civility, and International Humanitarian Law Introduction 6.1 The State, War, and IHL 6.2 Core Principles of IHL (with a Focus on Military Necessity) 6.3 IHL and the 'Standard of Civilisation' Conclusion References 7 Operationalising Distinction in South Sudan: Humanitarian Decision-Making about Military Asset Use Introduction 7.1 The Civilian in International Humanitarian Law 7.2 The Field Research 7.3 Background on Conflict and Intervention in South Sudan 7.4 Empirical Findings from South Sudan 7.5 Implications for IHL Conclusion References 8 Private Military and Security Companies and International Humanitarian Law: The Montreux Document Introduction 8.1 The Contemporary Private Military and Security Industry 8.2 The Private Military and Security Industry and International Humanitarian Law 8.3 An International Response to the Private Military and Security Industry 8.4 The Montreux Document 8.5 The Montreux Document, PMSCs, and IHL Conclusion References 9 Protecting Warfighters from Superfluous Injury and Unnecessary Suffering Introduction 9.1 Genesis 9.2 Elements 9.3 Application Conclusion References 10 Blurring the Lines: How Are Female Child Soldiers Protected by the Laws of War? Introduction 10.1 The Ntaganda Case at a Glance 10.2 P-0883's War 10.3 P-0883's Protections under the Laws of War Concluding Reflections References 11 A Step Back to Take a Step Forward: The Future of Justice in Conflict Introduction 11.1 The International Criminal Court and the 'Peace versus Justice' Debate 11.2 Investigating International Crimes in Ongoing and Active Conflicts: Towards a New Model? Conclusion: Towards a Future for Justice in Conflict References Index