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There seems a pretty clear connection historically between these conventions and the spread of the doctrine of total war from Clausewitz into the real world.
Clausewitz famously defined war as the continuation of diplomacy by other means---the reverse of a state of exception---in the sense that there’s no logical suspension of all law. Rather, there’d be the creation of a separate legal space within which war was permissible. That’s kinda how I’d see at least the conventions that try to define war.
And the humanitarian conventions seem to me to follow from the declaration of the rights of man and the claim that there are universal rights. So an aspect of the 19th century republican (in the European sense) attempt to assimilate the French revolutionary tradition for itself. One of the better outcomes no less.
If you accept Clausewitz statement as an adequate definition of war, then it’d follow (I think anyway) that you’re tipped toward a positivist position. Personally, I think natural law is a misinterpretation of conventionally written axioms inside of positive legal documents, a misinterpretation that leads one to imagine that statements of prior right or precendent that set a law into motion indicate that those rights actually exist prior to or outside of the sentences that articulate them. They don’t exist until they are instituted. So there is no natural law except to the extent that it is elaborated as statements about some (imaginary) prior arrangement within positive law. But I digress.
Second—the notion of what is and is not international has functionally changed since 1945. the entire apparatus that was symbolized by Bretton Woods was designed to make international bodies that could limit problematic devolutions within nation-states. The motivation was fascism, obviously. The American interpretation of fascism was that it followed from currency crises. Whence the World Bank, IMF, Bretton Woods arrangement, etc. Currency collapse could trigger other stability problems—whence NATO et al (before they were diverted into cold war functions)…so national is a problematic term functionally since 1945. Except within the hegemon. So Americans like to pretend nations still exist. Particularly conservatives.
If the political logic of the post-1945 order was set up to prevent nation-states from collapsing and veering initially toward fascism and then later toward whatever other political viewpoint the united states and its pals decided not to like, then there are no civil wars. Unless the material interests of the dominant powers are not involved, so they are not inclined to act, so they don’t. Think Eastern Congo after 1994 as an example. So a civil war is an international war that the international community doesn’t care about stopping. I’m not sure that this is the legal definition of civil war, or the accepted understanding of the term in law---but it seems to be the case materially.
Does this make sense within a legal theory/law school discussion context?
I’ve not been to law school so am not sure….
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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear
it make you sick.
-kamau brathwaite
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