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  • 5 - Limits to the Scope of Humanity as a Constraint on the Conduct of War

  • Edited by Matt Killingsworth, University of Tasmania, Tim McCormack, University of Tasmania
  • Book:
    Civility, Barbarism and the Evolution of International Humanitarian Law
    Published online:
    11 January 2024
    Print publication:
    01 February 2024, pp 85-110

  • Summary

    Accounts of the historical origins of international humanitarian law (IHL) routinely assume that the emergence of humanity as a constraint on the waging of war, coinciding as it did with a general rise of humanitarianism in the nineteenth century, reflected a growing commitment to a universally shared notion of human dignity. That assumption is fallacious. Those who have been mythologised as champions of humanity as constraint, including Henri Dunant and Francis Lieber, were products of their era. IHL’s ‘original sin’ was to only extend constraints of humanity to so-called civilised nations in their wars inter se. These same constraints were not intended to apply to indigenous and other colonised populations – those assumed to be ‘uncivilised’ – often referred to as such with the pejoratives ‘savages’ and/or ‘barbarians’. The exclusion of emergent constraints on the grounds of racism and colonialism is evident in the language of the early IHL treaties. It has taken many decades for the international community to overcome the exclusions of the legal protection of emergent IHL and some would argue that the tendency for exclusion is still evident in the dehumanising of the other in the Global War on Terror.

  • 1 - Introduction

  • Edited by Matt Killingsworth, University of Tasmania, Tim McCormack, University of Tasmania
  • Book:
    Civility, Barbarism and the Evolution of International Humanitarian Law
    Published online:
    11 January 2024
    Print publication:
    01 February 2024, pp 1-12

  • Summary

    In appreciating the institutional perpetuity of war, while simultaneously acknowledging the historically informed, inherent limitations of attempts to bound its conduct by international law, this chapter introduces the three interrelated questions that serve as the organising themes of this volume: first, is there a historical continuity with legal protections in war being informed by notions of ‘civility’ and ‘barbarity’?; second, what is the relationship between the ideals and operational realities in international humanitarian law (IHL)?; and third, what are the limitations of international laws designed to restrain excess in war? Via a brief overview of the divergent evolutions of jus ad bellum and jus in bello law, this introductory chapter further explores the sub-themes present in this volume: universalism and its shortcomings; problems with punishing violations of IHL; and the degree to which modern laws of war legitimate activities that should otherwise be prohibited.

Civility, Barbarism and the Evolution of International Humanitarian Law
  • Who do the Laws of War Protect?
  • Edited by Matt Killingsworth, Tim McCormack
  • Published online:
    11 January 2024
    Print publication:
    01 February 2024
  • 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?

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