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War
How relevant is the concept of war today? This book examines how notions about war continue to influence how we conceive rights and obligations in national and international law. It also considers the role international law plays in limiting what is forbidden and legitimated in times of war or armed conflict. The book highlights how, even though war has been outlawed and should be finished as an institution, states nevertheless continue to claim that they can wage necessary wars of self-defence, engage in lawful killings in war, imprison law-of-war detainees, and attack objects which are said to be part of a war-sustaining economy. The book includes an overall account of the contemporary laws of war and delves into whether states should be able to continue to claim so-called 'belligerent rights' over their enemies and those accused of breaching expectations of neutrality. A central claim in the book is as while there is general agreement that war has been abolished as a
legal institution for settling disputes, the time has come to admit that the belligerent rights that once accompanied states at war are no longer available. The conclusion is that claiming to be in a war or an armed conflict does not grant anyone a licence to kill people, destroy things, and acquire other people's property or territory.
legal institution for settling disputes, the time has come to admit that the belligerent rights that once accompanied states at war are no longer available. The conclusion is that claiming to be in a war or an armed conflict does not grant anyone a licence to kill people, destroy things, and acquire other people's property or territory.
624 pages, Hardcover
Published December 25, 2021
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About the author
Andrew Clapham
25 books17 followersAndrew Clapham is Professor of Public International Law at the Graduate Institute, Geneva and the Director of the Geneva Academy of International Humanitarian Law and Human Rights. He teaches international human rights law and public international law. Prior to coming to the Institute in 1997, he was the Representative of Amnesty International at the United Nations in New York. Andrew Clapham has worked as Special Adviser on Corporate Responsibility to High Commissioner for Human Rights Mary Robinson, and Adviser on International Humanitarian Law to Sergio Vieira de Mello, Special Representative of the UN Secretary-General in Iraq.
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November 22, 2022
TLDR: great book for any lawyer or non-lawyer interested in the topic (especially as an introduction to it).
Overall view
An excellent book that can serve as an introduction to the legal regimes governing war. The chapter on war powers in domestic law is a pleasant addition, setting the context for the way rules operate on the international level.
Clapham artfully employs references to engage his audience (the discussion of combatant immunity and James Bond is a great example of this). Not only the book is eloquently written, Clapham is sharp in his treatment of primary sources and the work is rigorous in its doctrinal approach. Clapham also appropriately dips into perspectives external to the law - the nuanced discussion of asymmetric warfare benefits from a sub-chapter on moral philosophy.
The overall thesis, that war is not a prerogative to arbitrarily kill and destroy (all is not fair in war), is powerfully argued. Most would agree with this thesis on the face of it, so Clapham’s work is valuable because he shows what preserving humanity at war means at the level of application and compellingly demonstrates where the law/certain actors fall short of the humanising promise. Neither does Clapham shy away from the moral quagmire of war, treating less-clear-cut questions (e.g. killing unarmed combatants not engaged in hostilities) with the nuance they deserve.
On the whole, this book is a must-read for anyone wishing to read up on war and the law. It will be of particular use to those interested in public international law, be they students seeking an introduction to the topic or experts looking for a systematic take on jus ad bellum/jus in bello.
More importantly, I think that the book is sufficiently readable and engaging for anyone interested in war and the law (which is high praise for any legal literature to my mind!). Those working in the be they international justice space, or generally interested in the topic, will find plenty to learn from this work.
Criticism
My only criticism, which may well be unfair given the how just much Clapham sets out to cover, is that treatment of gender and race in war is under-addressed.
To be sure, Clapham does a good job of touching on this where relevant (in particular the chapter on international criminal law covers this). However, given how often race and gender drives conflict-related violence, the book would have benefitted from more developed thinking by way of sub-chapters on both.
To be fair to Clapham, this may well have been difficult to square with his fairly formalist approach to the topic (the book is organised by legal areas and applicable treaties/custom). You could say for this reason the criticism is gratuitous, as Clapham does consider the impact of race and gender where appropriate within his approach to the topic.
From my perspective, especially given that some will be using the book to introduce themselves to the laws of war (which I accept may well not have been Clapham’s intention!), race and gender-based violence are so core to both the use of force and international humanitarian law (especially when we come to criticise these legal regimes), that a stand-alone treatment of the topics would have been helpful.
A stand-alone treatment of gender and race would have given Clapham the opportunity to better link these topics to his overall thesis (which, in fairness, is at worst already implicit in his arguments), as historically war has not only been conceived as a carte blanche for the worst conduct humans are capable of, but also as a way to actively reinforce and perpetuate racial and gender-based oppression.
Overall view
An excellent book that can serve as an introduction to the legal regimes governing war. The chapter on war powers in domestic law is a pleasant addition, setting the context for the way rules operate on the international level.
Clapham artfully employs references to engage his audience (the discussion of combatant immunity and James Bond is a great example of this). Not only the book is eloquently written, Clapham is sharp in his treatment of primary sources and the work is rigorous in its doctrinal approach. Clapham also appropriately dips into perspectives external to the law - the nuanced discussion of asymmetric warfare benefits from a sub-chapter on moral philosophy.
The overall thesis, that war is not a prerogative to arbitrarily kill and destroy (all is not fair in war), is powerfully argued. Most would agree with this thesis on the face of it, so Clapham’s work is valuable because he shows what preserving humanity at war means at the level of application and compellingly demonstrates where the law/certain actors fall short of the humanising promise. Neither does Clapham shy away from the moral quagmire of war, treating less-clear-cut questions (e.g. killing unarmed combatants not engaged in hostilities) with the nuance they deserve.
On the whole, this book is a must-read for anyone wishing to read up on war and the law. It will be of particular use to those interested in public international law, be they students seeking an introduction to the topic or experts looking for a systematic take on jus ad bellum/jus in bello.
More importantly, I think that the book is sufficiently readable and engaging for anyone interested in war and the law (which is high praise for any legal literature to my mind!). Those working in the be they international justice space, or generally interested in the topic, will find plenty to learn from this work.
Criticism
My only criticism, which may well be unfair given the how just much Clapham sets out to cover, is that treatment of gender and race in war is under-addressed.
To be sure, Clapham does a good job of touching on this where relevant (in particular the chapter on international criminal law covers this). However, given how often race and gender drives conflict-related violence, the book would have benefitted from more developed thinking by way of sub-chapters on both.
To be fair to Clapham, this may well have been difficult to square with his fairly formalist approach to the topic (the book is organised by legal areas and applicable treaties/custom). You could say for this reason the criticism is gratuitous, as Clapham does consider the impact of race and gender where appropriate within his approach to the topic.
From my perspective, especially given that some will be using the book to introduce themselves to the laws of war (which I accept may well not have been Clapham’s intention!), race and gender-based violence are so core to both the use of force and international humanitarian law (especially when we come to criticise these legal regimes), that a stand-alone treatment of the topics would have been helpful.
A stand-alone treatment of gender and race would have given Clapham the opportunity to better link these topics to his overall thesis (which, in fairness, is at worst already implicit in his arguments), as historically war has not only been conceived as a carte blanche for the worst conduct humans are capable of, but also as a way to actively reinforce and perpetuate racial and gender-based oppression.
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