A point on terminology: by “laws of war” I refer both to international humanitarian law (IHL, the legal jus in bello) and the ad bellum laws governing the use of force.
The only place the jus ad bellum enters IHL is in Additional Protocol I's conferring of the belligerent privilege on nonstate actors if they are fighting against racism, colonialism, or foreign occupation (but not otherwise). AP I, Art. 1, § 4.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), ICJ Reports 1986, p. 94, at § 176. See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, at § 41.
The drafters of the Geneva Conventions avoided the word “war” for fear that states would interpret their scope narrowly, as applying solely in declared wars. “Armed conflict” includes both declared and undeclared wars.
In some states, the law asks courts to compare the negligence of the plaintiff and the defendant, and apportion damages accordingly; for present purposes, I am ignoring this complication.
International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 UNTS 609, Art. 1(2).
See, e.g., the ICC's Office of the Prosecutor, Situation on Registered Vehicles of Comoros, Greece and Cambodia, Article 53(1) Report, November 6, 2014, §§ 23–29 (concluding in § 27 that “the prevalent view in the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement”).
Guiora, Amos and Luban, David, “Was the Gaza Campaign Legal?” ABA National Security Law Report
31, no. 1 (2009), pp. 2–3
Luban, David, “Human Rights Thinking and the Laws of War,” in Ohlin, Jens David, ed., Theoretical Boundaries of Armed Conflict and Human Rights (Cambridge: Cambridge University Press, 2016), pp. 63–65
Prosecutor v. Tadić, ICTY Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, §§ 66–70.
See Ben Emmerson, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/68/389, September 18, 2013, § 65. For further discussion, see
Daskal, Jennifer C., “The Geography of the Battlefield: A Framework for Detention and Targeting Outside the ‘Hot’ Conflict Zone,” University of Pennsylvania Law Review
161, no. 5 (2013), pp. 1165–234; and
Schmitt, Michael N., “Charting the Legal Geography of Non-International Armed Conflict,” International Law Studies
90 (2014), pp. 1–19
Cohen, Felix S., “Transcendental Nonsense and the Functional Approach,” Columbia Law Review
35, no. 6 (1935), pp. 809–49.
“The life of the law has not been logic: it has been experience” appears on the first page of Oliver Wendell Holmes's 1881 The Common Law; “considerations of social advantage” is in
Holmes, , “The Path of the Law,” Harvard Law Review
10 (1897), p. 467
Posner, Richard A., “Pragmatic Adjudication,” Cardozo Law Review
18 (1996), pp. 1–20