Genocide Project

This document is the third edition of The Law of War by Ingrid Detter. It explores the legal framework of modern warfare, focusing on the emergence of non-State actors, terrorists, and new technologies.Here is a summary of each section:

Part I: General Principles

• The Concept of War: This section explores the nature and definition of war. It argues that war is essentially a relationship between individuals by armed force, rather than just between States. It traces the shift from a State-centric view to a scenario where terrorist groups, such as Al-Qaeda, are recognized as major belligerents in a “War on Terror”. It also classifies modern wars by geography (inter-State or internal), purpose (liberation, revolutionary, or separatist), and methods (guerrilla warfare).
• Prohibition of War: This chapter examines rules limiting the use of force, including the UN Charter’s article 2(4). It details the challenges of defining “aggression” and discusses factors that can legitimize force, such as self-defense, targeted killings, and humanitarian intervention. It specifically reviews the “Right to Protect” (R2P) doctrine.
• Prevention of War: This section analyzes factors that stabilize or undermine international peace. Stabilizing factors include military alliances, coordinated foreign policy, and various disarmament efforts, ranging from nuclear to conventional arms trade restrictions. It also covers institutional roles, such as the UN’s involvement in dispute settlement.
• The War-Waging Machinery: This chapter identifies the resources and personnel involved in warfare. It defines “combatants” and differentiates between regular forces, irregular forces (including volunteers and military companies), and illegal combatants, such as terrorists, spies, and pirates.
• The Nature of the Law of War: It provides a historical overview and defines the functions of the Law of War (jus in bello). It distinguishes between “The Law of the Hague” (methods of warfare) and “The Law of Geneva” (humanitarian rules). It also introduces general ethical principles like the Martens Clause and Common Article 3 of the Geneva Conventions.
• Spatial Application of the Law of War: This section details where the laws of war apply. It covers traditional territory, neutral zones, and demilitarized areas. It also discusses denuclearized zones and occupied territories. Finally, it analyzes how these laws apply internally within States during internationalized or civil conflicts.

Part II: Rules on Belligerence

• Restrictions on Weapons: This chapter focuses on the legality of various weapon types. It covers conventional weapons (fragmentation weapons, mines, and booby-traps) regulated by the 1980 Weaponry Convention. It also examines weapons of mass destruction, specifically nuclear, biological, chemical, and environmental weapons, alongside newer concerns like cyberspace warfare.
• Prohibited Methods of Warfare: This section details general rules for all warfare, such as the distinction between military and civilian targets. It lists specific exemptions from attack, such as hospitals, cultural property, and food supplies. It also prohibits methods like starvation, perfidy, and indiscriminate area bombing.
• Humanitarian Rules: This chapter defines the realistic meaning of humanitarian law in war. It outlines specific protections for the wounded, sick, shipwrecked, and prisoners of war. It also discusses the treatment of specially protected groups like women, children, and journalists, as well as the status and treatment of terrorists and detainees.

Part III: Consequential Aspects of the Law of War

• Effects of State of War: This section explores the legal impacts of war on communications, treaties, property (booty, prize, and requisition), and contracts.
• Execution of the Law of War: This chapter reviews methods for implementing the Law of War, such as the Protective Power system, Fact-Finding Commissions, and mediation. It emphasizes the importance of disseminating knowledge of these laws to soldiers and individuals.
• Suspension of the Law of War: This final section deals with the legal grounds for deviating from the laws of war, such as denunciation and military necessity. It examines the problem of reciprocity and details sanctions for breaches, including State and individual responsibility. It provides an overview of various ad hoc war crimes tribunals (e.g., ICTY, ICTR) and the permanent International Criminal Court (ICC), while critiquing the doctrine of “joint criminal enterprise” (JCE).

The third edition of The Law of War by Ingrid Detter explores the evolution of legal frameworks in the face of modern warfare, characterized by the rise of non-State actors and technological advancements.

Here is an analysis of the book:

Central Thesis: The Shift from State-Centric to Individual-Centric Law

• The Individual as Subject: Detter argues that war is essentially a relationship between individuals by armed force, rather than just between States. She contends that individuals (soldiers, civilians, terrorists, and dictators) are immediate subjects of international law with both rights and duties.
• Erosion of Sovereignty: The book identifies a trend toward “democratization of international society,” where a State’s internal affairs (the “reserved domain”) are increasingly subject to international scrutiny, particularly regarding gross human rights violations.
• New Belligerents: The traditional monopoly of States on war-waging has been encroached upon by non-State actors, including terrorist organizations (like Al-Qaeda), private military companies, and liberation movements.

The Evolving Nature of War and its Definition

• War on Terror as a New Paradigm: The book defines the “War on Terror” as a new form of war or war sui generis. In this scenario, terrorist groups function as belligerents, and their participants are often “illegal combatants” who fail to distinguish themselves from civilians.
• Broadening the Definition: Detter adopts a pragmatic definition of war as a “sustained struggle by armed force of a certain intensity between States, or groups of a certain size”.

Legal Justifications and Prohibitions

• Limitation of Force: The book examines the UN Charter’s Article 2(4) prohibition on force and analyzes legitimizing factors such as self-defense, anticipatory self-defense, and humanitarian intervention.
• The Right to Protect (R2P): Detter analyzes R2P as a contemporary doctrine for collective intervention to prevent genocide and crimes against humanity, while noting its potential for abuse by powerful States.
• Target Killings: The book reviews the legality of targeted killings (often via drones) against terrorist leaders, arguing they may be justified as a form of anticipatory self-defence in a war against terror.

Weapons and Methods of Warfare

• Weapons of Mass Destruction (WMDs): Detter defines WMDs not just by their physical nature (nuclear, biological, chemical) but by their “indiscriminate effect,” making them inherently illegal under international law.
• Technological Advancements: The book covers newer concerns such as cyber warfare, space weapons, and the use of drones and robots, emphasizing that these new “means” must still comply with fundamental ethical principles.
• Principle of Distinction: A core theme is the absolute necessity of distinguishing between combatants and civilians. Detter argues against extending “prisoner of war” status to terrorists, as doing so dilutes the protection for legitimate soldiers and civilians.

Implementation and Responsibility

• Basis of Obligation: Detter challenges the reliance on “customary law,” which she views as elusive and often based on “negative custom”. She instead advocates for a focus on jus naturale internationalis—inherent rules necessary for the survival of international society.
• War Crimes Tribunals: The book provides a detailed overview of various ad hoc tribunals (ICTY, ICTR, etc.) and the permanent International Criminal Court (ICC).
• Critique of Joint Criminal Enterprise (JCE): A significant part of the analysis is a sharp critique of the JCE doctrine used by tribunals like the ICTY. Detter describes JCE as an “invented,” “dangerous,” and “unnecessary” doctrine that undermines the Rule of Law by potentially convicting individuals for crimes they did not intend or commit.

Ingrid Detter’s central thesis is that war is essentially a relationship between individuals by armed force, rather than solely a relationship between States.

Her thesis centers on several key arguments regarding the evolution of the Law of War:

• The Individual as the Primary Subject: Detter argues that the individual (whether soldier, civilian, terrorist, or dictator) has become an immediate subject of international law with direct rights and duties. She contends that accepting the individual is at the center of international law is the only way to make sense of contemporary State practices, such as trying terrorists or military leaders in international tribunals.
• The Shift from a State-Centric Paradigm: She identifies a significant move away from the exclusive State-centric system that dominated international society since the sixteenth century. This evolution is driven by the increased prominence of non-State actors in armed conflict, including terrorist groups (like Al-Qaeda) and private military companies.
• The Role of Inherent or Intrinsic Rules: Detter posits that there are “inherent” or “intrinsic” rules (forming part of jus naturale internationalis) that States have no power to alter. These rules—such as prohibitions against genocide, torture, and slavery—are sociologically necessary for the survival of international society and bind all actors, including non-State groups and individuals.
• Universal Application Regardless of Conflict Type: She challenges the traditional view that the Law of War only applies to inter-State conflicts. Instead, she argues that the core principles of the Law of War, rooted in international natural law, apply to all forms of war, whether inter-State, internal, or conflicts involving terrorists.
• Maintaining the Rule of Distinction: Despite the evolution of non-State belligerents, Detter maintains that the fundamental rule of distinction remains vital. She argues that “illegal combatants” (such as terrorists who do not wear uniforms) must be distinguished from regular soldiers and civilians to preserve the integrity of humanitarian protections.