The picture shows modern warfare
Source: Baidu Pictures
A History of the Evolution of western concepts of war law
Zheng Fan
The "laws of war" have now been almost expelled from international law textbooks and replaced by "international humanitarian law", "the law of armed conflict" and "international criminal law". This in itself embodies a legal conception of war: wars of aggression are illegal, that in the event of a de facto armed conflict, those involved in hostilities should observe the law of humanity and that individuals who have committed or ordered the commission of serious crimes will be tried before the tribunal. Many Western scholars believe that this concept is the return of the "just war" in the traditional Western law of war after the two world wars. Whether you agree with it or not, examining the evolution of Western conceptions of the laws of war, that is, the concept of the legitimacy of war, is directly related to understanding the present.
The picture shows ancient wars
In classical times, the golden age of the city-state system, the Greeks distinguished between the pretexts of war and the reasons for war, but had no intention of legalizing the grounds of war. Herodotus appealed the Persian War to civilization against barbarism, and Thucydides acknowledged that the expansion of Athens in the Peloponnesian War and the fear of Sparta were justified. While the Greek philosophers regarded war as the norm, they tried to distinguish between city-states and between Greeks and barbarians. Plato's "Republic" was like a military camp ready for war, and his Socrates wanted the Greeks to see wars between greeks as "ill and disharmonious" and to limit their conduct. Aristotle bluntly stated that war is like hunting, and that war to plunder natural slaves is in line with "natural justice." The ancient Romans made "just war" a legal concept, and the ideas associated with it evolved with the rise and fall of Rome. The patriarchal system laid the foundation for the legalization of just war. The function of the priesthood was to investigate whether other states had breached their obligations to the Romans and, if so, to swear in the name of the Roman gods to demand compensation from the other side. Once the other side refuses, the just justification for the war is formed. During the critical period of Rome's march towards a "world empire", Roman intellectuals sought to free the justice of war from the naked justice of the mighty, and the Stoic idea of natural law provided assistance.
In the later years of the Roman Empire, the Christian tradition continued to think about "just wars." After the Christianization of the Roman Empire, the concepts corresponding to the universal empire and universal religion, the peace under Roman rule and the peace of the kingdom of God were formed, which continued into the Middle Ages and formed the conceptual background for the maturity of the theory of just war. In interpreting the Context of the Old Testament, Augustine proposed: "Just wars should be defined as wars that are waged to repair wounds." In this way, nations and city-states that fail to punish their citizens for their evil deeds or do not return improperly seized goods should be dealt a blow. This definition makes "injury" a central concept of just war. Medieval scholastic theologians continued this view. Aquinas famously had three elements of a just war: first, that the war was waged by a sovereign sovereign, in other words, private struggles were excluded; second, that the war must have just grounds, that is, the enemy was at fault for himself, which made the just war manifest first and foremost as "self-defense"; and third, the legitimate intention, that is, to wage war out of (Christian virtue) benevolence, aimed at putting the enemy on the right path.
The School of Salamanca developed Christian natural law, civil law, and the theory of the laws of war by participating in discussions of the Indian issues raised by the Spanish conquest of the Americas. After denying that terra nullius, the power of the Holy Roman Emperor and the Pope could be justified by Spain to occupy Indian lands and rule, Vitoria based his defense on the laws of war. "Fait accompli is the only just reason to start a war", and the war against the Indians would be just if the Indians prevented the Spaniards from exercising their civil law rights (derived from or equivalent to natural law) such as passage, residence, trade, and proselytizing, or if Spain protected converts, aided allies, etc. An important step victoria took was to point out that just war could be not only punitive, but also offensive, conquering enemy lands and subjects. Prior to this, even the Crusades against the Holy Land were interpreted as defensive in nature, as the Holy Land was an encroached homeland. Perhaps because of its cold nature, Victoria spent as much ink on the "rules of war" as on "justifications" in On the Laws of War. Suarez, the "last scholastic theologian," went on to push the just war to the logical end of "justice," with sovereign monarchs who started the just war supposed to hold "judicial power" to enforce "punitive justice."
In the transition from the late Middle Ages to the early modern period, the structure of the universal empire-universal religion gradually disintegrated into a sovereign state, and the theory of just war was subsequently attacked and turned around after Grotius. Commentaries on the Jurisprudence school introduce "revenge" into the discussion of just wars, as Giovanni da Legnano of Legnano points out at the beginning of his special chapter, when there is a higher authority of divine judgment, the offender is punished and there is no need for revenge, but when the ecclesiastical and imperial power begin to be disobedient, revenge, which is essentially a remedy that belongs to the category of private struggle, becomes necessary. "Retaliation" as a legal concept not only opened up the study of "means of force that are inferior to war" in later generations, but also made the theory of just war begin to "fall into the world".
The picture shows the War and Peace Act
The shift in the theory of just war can be detected through a key question: whether it is possible for both warring parties to be just at the same time. The Christian theory of just war is no, while Grotius gives two opposite answers on two levels. The Law of War and Peace actually contains two theories of just war. The first is to continue the thinking of scholastic theologians at the level of natural law and to divide the justification of justice into three categories: defense, recourse, and punishment. In his arguments based on natural law, Grotius conceded that only one party's justification was valid, but in the "Introduction" section, Grotius doubted that just reasons could constrain war. Second, by separating civil law from natural law and becoming a "voluntary" accepted positive law (equivalent to the current concept of "international law"), Grotius recognized that in cases where the justification of justice was in doubt, both sides could be recognized as long as they complied with the civil law on the external form of war (especially the declaration of war). In the words of Emeryich Watter, who was enshrined as an authority on international law in the 19th century, the latter theory of just war can be called "legitimate warfare in its proper form".
From the Treaty of Westphalia to the outbreak of World War I, along with the rise of sovereign states and nation-states, the Western concept of war law abandoned the issue of justification and continued to develop in the direction of focusing on the external form of war. The theory of natural rights, or the theory of the social contract, actually provided the ideological basis for the positivist development of the law of war. Sovereign personalities are equal, there are no common judges above them, and sovereign states are in a state of nature. At least in Hobbes's natural state, war has become the norm between states, the legitimate actions and functions of sovereign states, the exercise of the fundamental natural right to "self-preservation", rather than one party committing a crime and the other punishing. In the positivist development of the laws of war, war became a state of law in which "perfect war" was the observance of specific forms of behavior: declaration of war, respect for neutrality, observance of the rules of war, and end of war by extinction or peace. After equality between belligerents is recognized, equal status is attained between individual soldiers on both sides and are not considered criminals. This provides a precondition for the development of the rules of operations. In the second half of the 19th century, the rules of warfare, represented by the two Hague Peace Conferences, centered on distinguishing between combatants and civilians and practicing humanity, were codified in culture, with land and naval warfare being organized.
The picture shows the signing of the Treaty of Westphalia
World War I destroyed the optimism that pervaded the rules of warfare into a culture. The "balance of power in Europe" has been unable to limit the outbreak of war in name and in fact at the diplomatic level, and "legitimate war in its proper form" has proved unable to cope with the horrific consequences of a "total war" resulting from the innovation of material means of war, combined with the marriage of ideological state reasons and nationalism. The Treaty of the League of Nations and the Paris Non-War Convention marked another shift in the concept of the laws of war, and the Charter of the United Nations and the trial of war criminals took a new direction, at a time when the world pattern was no longer Centered on Europe. Placing the current legal conception of war in the above evolutionary genealogy seems to be a compromise on the surface, inheriting and refining the rules of warfare in the 19th century positivist law of war, while showing the justification for justice (self-defense or Security Council authorization) and the concept of war crime responsibility in the medieval theory of just war. However, a question worth exploring but difficult to answer is, if the current concept of the law of war is recognized to be largely underpinned by the Charter of the United Nations, then what underpins the Charter of the United Nations?
About the author
Collaborative Innovation Center for Security and Development of Western China Frontier of Sichuan University
This article is reproduced from the "China Social Science Network", thanks!
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