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International Law & Use of Force
South Texas College of Law Houston
Corn, Geoffrey S.

History of the Law of War
1)    Historical Motivation
a)    Facilitate victory
b)    Restoration of peace
c)    Limit suffering
2)    Jus ad Bellum – legality of war
a)    make war the last resort
3)    “Just” War Period – 335 BC-1800
a)    Must have a just cause to wage war
b)    Birth of international law
4)    War as Fact Period – 1800-1918
a)    Waging war is the absolute right of each state
i)      No moral foundation – no need that it be for just cause
ii)     No legal impediment
b)    Only procedural requirements – must officially declare war
5)    Shift in Focus
a)    Change from the fact that there must be a just reason to go to war to regulating what is just conduct while at war
6)    Jus Contra Bellum – 1918-1939
a)    WWI – war is never just and should never be lawful – outlawed the resort to war making war illegal
7)    Jus ad Bellum – 1945 – ?
a)    Comprehensive treaties
b)    Universal laws of war
c)    2 times states are authorized to use force:
i)      Right of self defense – inherent right for every state
(1) includes anticipatory self defense
ii)     Collective security – UN Security Council’s authority to determine that there has been a breach of peace and authorize use of force
(1) with consent of 5 major country heads – U.S., Soviet Union, France, Great Britain and China
(2) used to allow countries to intervene on other states behalf
8)    Jus in Bello – rules that regulate how you fight
a)    Rules apply equally to all states – do not deny the state rules of law just because their fight is illegal
i)      Legality of your war has no bearing on the rules used to regulate that war – apply rules equally to all whether their war is legitimate or not
ii)     because individuals do not choose to go to war (their nations did) so they should not be held accountable for their country’s conduct, only their individual conduct
9)    Distinction between the Jus ad Bellum and Jus ad Bello – how you fight helps to define the legitimacy of your fight
a)    Criticism in Policy after 9/11 – government argued that the terrorist’s war was unjust so they did not deserve protection (reverting back to “just cause”)
10)Customary International Law – international common law
a)    Unwritten rules through custom (customary law) – binding on states even if they are not part of the treaty or there is no treaty
i)      Treaties can codify customary law
ii)     Can develop from treaty provisions
11)Codified Rules – Treaties
a)    Written set of rules binding on all signatory states
b)    Can also be called conventions, protocols, or regulations
c)    4 treaties universally ratified by all countries – 4 Geneva Conventions of 1949
d)    3 Big Treaties:
i)      Hague Convention of 1907
(1) Hague Tradition – regulated how we fight and weapons that could be used
ii)     4 Geneva Conventions of 1949
(1) Geneva Tradition – regulates how we treat victims of war
(a) protected wounded and sick on battle field (ex. wearing red cross are protected)
(b) protected civilians who were displaced
iii)    1977 Protocols or supplements to the Geneva Conventions – comprehensively regulated war by providing rule son how we fight and how we treat victims of war
(1) AP1 – interstate
(2) AP2 – intrastate
e)    Treaties broken down into parts, sect

suffering of combatants
(1) prohibits kind or degree of force not necessary for the purpose of war
(2) humane treatment – treat the person as a human being
(3) unnecessary suffering – cannot develop weapons designed to serve an illicit purpose of exacerbating suffering
(a) countries target a certain weapon and ban it by treaty because there is little consensus on what is unnecessary suffering
(b) combatants may be killed as the first measure of resort – because there is a conclusive presumption that combatants are a threat
b)    Principle of distinction – attack only military objectives
i)      Must distinguish between lawful and unlawful objects of attack
(1) Distinguish between civilian and combatants and direct operations accordingly
ii)     can kill civilians incidentally, but not deliberately
c)    Principle of necessity
i)      Proper aim is to destroy and kill as few as possible and cause only damage necessary to overpower the enemy and bring his surrender
(1) Capture rather than wound
(2) Wound rather than kill
(3) Kill less rather than more people
d)    Principle of proportionality – military measures taken must be proportionate to the aim seek to accomplish
i)      Military advantage obtained by a particular operation must outweigh the damage caused to civilians and civilian objects