,
, Lecture 1 Introduction / may 2024
History & Legal Basis
Middle Ages: feud and war governed by principles such as protection for women, children and
aged, holy places, and there were knights rules.
St. Thomas Aquinas (13th century) – just war: lawful authority, just cause, and rightful intention.
Age of Enlightenment: war is not between men, but between states. So people that are defending
that state can be attacked, people that have laid down arms and surrendered should not be
attacked.
Rousseau: the purpose of using force is to overcome an enemy state, and to do this it is sufficient
to disable enemy combatants.
1861: Lieber Code, a manual based on international law for the army. The Lieber Code is the origin
of Hague Law. Lieber was a German-American professor of political science and law. Founded on the
principle that only armed enemies should be attacked.
1863: Foundation ICRC.
1868 Declaration of St. Petersburg – on weapons: no unnecessary
suffering. 1899 and 1907: Hague Peace Conferences.
The Martens clause: “In cases not covered by international agreements, civilians and
combatants remain under the protection and authority of the principles of international law
derived from established custom, from the principles of humanity and from the dictates of
public conscience.
This means that the mere omission of a matter in a treaty does not mean that international law
should necessarily be regarded as silent on that subject, and serves as a reminder that the
adoption of the treaty in question does not preclude protection of CIL. (also useful when
technology develops faster than the law – which is always)
Principle of necessity: A state may only use such force (not otherwise prohibited by humanitarian
law) as is necessary to achieve the goals permitted by the right to self-defense.
The action is only lawful if, in the circumstances, it is necessary for the defense of that
state. Principle of distinction: distinguish between combatants and civilians.
Principle of perfidy: forbids the use of treacherous methods and means of warfare.
Military necessity is not a reason to not abide by the rules of humanitarian law, international
humanitarian law already is a compromise between military and humanitarian requirements.
Military necessity is only a permissible reason if the rule of international law expressly provides for
such a possibility
, Lecture 1 Introduction / may 2024
History & Legal Basis
Middle Ages: feud and war governed by principles such as protection for women, children and
aged, holy places, and there were knights rules.
St. Thomas Aquinas (13th century) – just war: lawful authority, just cause, and rightful intention.
Age of Enlightenment: war is not between men, but between states. So people that are defending
that state can be attacked, people that have laid down arms and surrendered should not be
attacked.
Rousseau: the purpose of using force is to overcome an enemy state, and to do this it is sufficient
to disable enemy combatants.
1861: Lieber Code, a manual based on international law for the army. The Lieber Code is the origin
of Hague Law. Lieber was a German-American professor of political science and law. Founded on the
principle that only armed enemies should be attacked.
1863: Foundation ICRC.
1868 Declaration of St. Petersburg – on weapons: no unnecessary
suffering. 1899 and 1907: Hague Peace Conferences.
The Martens clause: “In cases not covered by international agreements, civilians and
combatants remain under the protection and authority of the principles of international law
derived from established custom, from the principles of humanity and from the dictates of
public conscience.
This means that the mere omission of a matter in a treaty does not mean that international law
should necessarily be regarded as silent on that subject, and serves as a reminder that the
adoption of the treaty in question does not preclude protection of CIL. (also useful when
technology develops faster than the law – which is always)
Principle of necessity: A state may only use such force (not otherwise prohibited by humanitarian
law) as is necessary to achieve the goals permitted by the right to self-defense.
The action is only lawful if, in the circumstances, it is necessary for the defense of that
state. Principle of distinction: distinguish between combatants and civilians.
Principle of perfidy: forbids the use of treacherous methods and means of warfare.
Military necessity is not a reason to not abide by the rules of humanitarian law, international
humanitarian law already is a compromise between military and humanitarian requirements.
Military necessity is only a permissible reason if the rule of international law expressly provides for
such a possibility
