7
Humanitarian Practice and
the Laws of War

The Supposed Equality of Belligerents and
Impartiality of Humanitarian Relief

Weapons and how they are used in armed conflict cannot properly be considered in isolation from the question, how far the choice and use of weapons in armed conflict is shaped and determined by things that have happened--decisions made, thoughts thought--before armed conflict begins. This seemingly logical procedure ought to surprise no one. But modern IHL writers have not usually followed it. The usual thing through the past two centuries has been to leave the part of the law which deals with the causes and pretexts of war, the old jus ad bellum, to fend for itself and to focus exclusively on the jus in bello.

Good reasons for concentration on the jus in bello are not lacking. The most persuasive one has become embodied in the law itself. Traditional jus ad bellum lost its charm for those pragmatic, moderate-minded men of the seventeenth and eighteenth centuries whose observations taught them that, extravagantly interpreted, it could actually obstruct the restraint and (as the most optimistic of them came to describe it) the humanization of war. The pursuit of justice in this connection as in most others could run to extremes as well as to the moderate middle. The more persuaded men were of the absolute rightness and divine authority of their cause--the nearer they got to interpreting 'just war' as 'holy war'--the more difficult seemed they to find it to exercise restraint and show compassion. To the minds of diplomatic practitioners and men of affairs of early modernizing Europe, moreover, there was a further flaw in the received theory. Inherited just-war theory assumed that, even if 'right' was not wholly and exclusively on one side, more of it must be found on one side than the other, which, in strict logic, was very likely to be the case. But realist political theory and positivist legal theory were waltzing away from such evaluations, preferring not to pronounce judgment on the rights and wrongs of sovereign States in conflict until they knew what the outcome was. The only right that mattered to them was, to put it crudely, whatever was recognized as such and was enforceable within the society of States.

-235-

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