This article examines the legality of war. Its methodology consists in the examination of various legal sources mainly from the nineteenth century to the present day. The conventional law relating to the rules governing wars emerged at the end of the nineteenth century with the Hague conventions on the laws and customs of war of 1899. By those conventions, states undertook, inter alia, to regulate the conduct of warfare. In addition, the recourse to wars was restricted and the principle of pacific settlement of international disputes was asserted. Yet, wars neither stopped nor decreased and the world later experienced the two world wars.
Nowadays, it is widely believed that aggression and proxy wars are prohibited. The mainstream literature argues that such prohibition started after the First World War, especially with the Kellogg- Briand Pact. However, there is little discussion on the evolution of such prohibition. This work solves that issue. In addition, while since immemorial times many states have been engaged in civil wars, the legality of those wars has received little attention from the literature. This article fills such gap. It asserts that international armed conflicts are prohibited and that they are allowed in some circumstances. With regard to the civil wars, they are unlawful under domestic law and seem lawful under international law.
Table of Contents
1. International armed conflicts
1.1. Before the nineteenth century
1.2. From 1900 to the Second World War
1.3. From 1945 to the present day
2. Non-international armed conflicts
Research Objective and Scope
This article investigates the evolution of the legality of war by examining international legal frameworks, conventions, and judicial precedents from the nineteenth century to the present day, with a specific focus on the distinction between international armed conflicts and non-international civil wars.
- The historical development of rules governing international armed conflicts since the nineteenth century.
- The legal status of aggression wars and proxy wars under various international agreements.
- The role of the UN Charter and major international judicial decisions in defining the legality of force.
- The legal dichotomy of civil wars: their prohibition under domestic law versus their ambiguous status under international law.
- State practice regarding amnesty and conflict resolution in non-international armed conflicts.
Excerpt from the Book
1.1. Before the nineteenth century
Before the nineteenth century, states were allowed to launch wars against other states and conquer them. In addition to fighting directly against existing governments of the states, they had also the right to intervene in wars occurring in other states and assist insurgents opposed against them. For instance, in 1830 France intervened militarily in the Netherlands to assist Belgium in its war of independence against the Netherlands.
In the second half of the nineteenth century, wars of aggression continued to be lawful. However, at the end of that period, the recourse to military force became restricted. In the 1899 Hague conference, states concluded the Convention for the Pacific Settlement of International Disputes in which they undertook to prevent as far as possible the use of force in relations between states.
In this regard, in case of dispute, states were required to first have recourse to the mediation, good offices and other mechanisms of the peaceful resolution of disputes before engaging in the military confrontation.
Summary of Chapters
1. International armed conflicts: This chapter traces the evolution of international legal norms regarding the use of force, from the unregulated warfare of the pre-nineteenth century through the Hague conventions and the League of Nations, to the modern constraints established by the UN Charter.
2. Non-international armed conflicts: This section explores the legal status of civil wars, highlighting that while such conflicts are universally criminalized under domestic penal codes, they lack a clear prohibition in international law, often concluding with state-granted amnesties.
Keywords
Legality of war, international armed conflicts, non-international armed conflicts, civil wars, proxy wars, UN Charter, Hague conventions, Kellogg-Briand Pact, self-defence, international law, state practice, amnesty, aggression, sovereignty, judicial precedents
Frequently Asked Questions
What is the primary focus of this article?
The article examines the evolution of the legality of war from the nineteenth century to the present, focusing on how international law regulates both international armed conflicts and civil wars.
What are the key thematic areas covered?
The study covers the transition from unrestricted warfare to modern legal frameworks, the role of international treaties and conventions, and the legal paradoxes surrounding internal (civil) conflicts.
What is the central research question?
The primary goal is to determine the extent to which international law categorizes different types of wars as lawful or unlawful and to address gaps regarding the legal status of proxy and civil wars.
Which scientific methodology is employed?
The author uses a qualitative legal analysis, examining a range of primary and secondary sources, including international conventions, state practice documents, and key judicial decisions from international tribunals.
What is discussed in the main body?
The main body is divided into two parts: the development of international norms governing wars between states (including the nineteenth-century Hague conferences and the UN Charter) and the specific legal status of non-international or civil wars.
Which keywords characterize this work?
Key terms include international law, legality of war, aggression, civil war, self-defence, state practice, and international conventions.
How does the author characterize the legality of civil wars compared to international conflicts?
The author argues that while international armed conflicts are strictly regulated and largely prohibited by international law, civil wars remain inherently illegal under domestic law but appear to lack a clear, corresponding prohibition under international law.
What role does the "Alabama case" play in this study?
The Alabama case is used as a historical legal precedent from the late nineteenth century to illustrate the early emergence of restrictions on proxy wars and state liability for supporting insurgencies.
What conclusion is drawn regarding the effectiveness of international law in preventing wars?
The article concludes that despite the adoption of significant legal instruments like the UN Charter, military conflicts continue to occur, and suggests that states must focus on prevention through the rule of law and peaceful dispute resolution.
- Citation du texte
- Callixte Mbonigaba (Auteur), 2022, The Legality of War, Munich, GRIN Verlag, https://www.grin.com/document/1223167
