Introduction
The study of the law of armed conflict (LOAC), or international humanitarian law (IHL), is not unlike building a house. First, one lays the foundation for the structure. Then a framework is erected that is tied to the foundation. Finally, outer walls and interior rooms are constructed, with the framework and foundation providing their support. The study of LOAC and IHL is much the same.
We begin by answering two foundational questions. We determine what LOAC applies in the conflict under consideration; that is, what is the conflict status? This requires that we know what LOAC and IHL are: what our building materials consist of and some of their history.
Our second foundational question is, what are the statuses of the various participants in our armed conflict? What individual statuses are possible? When do those statuses apply, how are they determined, and who assigns them? With answers to these two questions, conflict status and individual status, a basic foundation is laid.
Next, a LOAC/IHL framework is erected. What constitutes LOAC and IHL? What are their guiding principles and core values? The framework is essential for all that follows – for the many individual issues, large and small, that make up the innumerable “rooms” of our LOAC/IHL house.
We develop these questions in this chapter and in succeeding chapters. Not all armed conflict law is considered in this single volume. However, the basics are here. In this chapter, we examine the rich history of LOAC. Where did it arise, and when? Who was involved? Why was it considered necessary?
The Law of War: A Thumbnail History
If Cicero (106–43 b.c.) actually said, “inter arma leges silent” – in time of war the laws are silent – in a sense, he was correct. If laws were initially absent, however, there were rules attempting to limit armed combat virtually from the time men began to fight in organized groups. Theodor Meron notes that “even when followed, ancient humanitarian rules were soft and malleable and offered little if any expectation of compliance.” Still, as John Keegan writes, “War may have got worse with the passage of time, but the ethic of restraint has rarely been wholly absent from its practice.
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