Violence arms itself with the inventions of Art and Science in order to contend against violence. Self-imposed restrictions, almost imperceptible and hardly worth mentioning, termed usages of International Law, accompany it without essentially impairing its power.-Clausewitz, 1832The rules of international law must be followed even if it results in the loss of a battle or even a war.-Nuremberg tribunal, Hostages Case1. INTRODUCTIONThe above quotations present two contradicting but prevailing concepts of the binding force and importance of international humanitarian law (abbreviated as IHL and also known as 'the laws of war' or 'the laws of armed conflicts').1 As these concepts are rooted in polar moral viewpoints regarding the conduct of war, the controversy they demonstrate suggests that even though IHL is, strictly speaking, a branch of international law serving as the body of laws governing the conduct of armed conflicts, it functions also, and perhaps to a greater extent, as a moral system (either followed or rejected) for the armies involved in armed conflicts. This is, in a nutshell, the argument I pursue in this article.Before delving into the argument, I will clarify four general points regarding the scope of the article and its core concepts. First, the article analyzes the moral (ethical) and the legal characteristics of the IHL system. Ethics, in general, is known to refer to the reflective general and core Socratic question, How should one live? However, it also has some narrower expressions that are perhaps better grasped by the term ?morality', whose Latin roots emphasize more the aspect of social expectation. In this article I will refer to this narrower sense of morality and will discuss the characteristics of a specific moral system, that is, IHL, and how it should guide the combatant's behavior.I discuss specifically IHL and not public international law in general. As a consequence, I avoid the question (which is beyond the scope of this article) of whether public international law is considered a legal system3 and ask whether IHL's essence suggests it should be regarded as a legal system.The term a legal system' will also be defined narrowly, concentrating only on the criminal legal system. This is because the nature of IHL in the legal sense has a stronger resemblance to criminal law than to any other legal system. Like criminal law, IHL provides for rules directing human behavior and does not (like contract law, for example) provide facilities for the realization of wishes and choices for the making of claims or asserting rights.4 In addition, some of the provisions in IHL instruments, like criminal law, are subject to criminal sanctions. For example, the violations of some of the articles of the Geneva Conventions for the Protection of Victims of War (1949) (GC), referred to as grave breaches, require criminal prosecution, and the Rome Statute of the International Criminal Court (ICC) also criminalizes certain violations of IHL.The last preliminary clarification regards my choice of the name ?IHL' to refer to the branch of law in international law that regulates the conduct of belligerents in armed conflicts, rather than using its other definitions, such as ?the laws of war' or ?the laws of armed conflicts.' Describing this law as ?humanitarian' reveals something about its nature, its major concerns, and even its moral position. The discussion in the article of the historical development of this branch of law and of the circumstances under which it received its name will serve to support my conclusion that IHL more closely resembles a moral system-in which ?is' is not severed completely from ?ought'-than it does a legal system.I open my argument, in the second section below, by discussing the similarities and the differences between legal systems and moral systems. In the third section, I apply my conclusions from this discussion to IHL in order to decide whether it is a legal system, a moral system, or both. …
Read full abstract