Some Ideas on the Law of War or International Humanitarian Law
04.07.2025
The German theorist of war, Carl von Clausewitz, 200 years ago, in his treatise “On War” analyzed how wars depend not just on the military, the military leaders and the weapons-power they can muster. He could probably have predicted that the Taliban wearing sandals and bearing hand-held hand-made weapons could win in Afghanistan against the heavily clad mighty US army, US air force, US navy and US marines with all their airplanes, helicopters and great big bombs, and he could have predicted that the Taliban could now be in power there, while the US military had to flee Kabul in indescribable disarray with its supporters trying to hang on to the wings of departing jumbo jets. The military super-power lost. Things other than “military power” are thus clearly, as von Clausewitz saw even then, important. They can and do bring defeat to the side with a million times more military force. Afghanistan was not the first such loss to the US super-power. It lost 40 years earlier in Vietnam against an army with no equivalent military power.
War is not just about who has more brute military force, von Clausewitz wrote 200 years ago.
He said it also depends upon a second force, equal to, or more important to, the outcome of any war. He said it depends upon the political forces in power and the degree of clarity, justice and reasonableness of their political decision to go to war at all. This is crucial. And, in turn, the military must understand, must understand with precision, what the political decision to go to war actually means, and be able to translate it into appropriate action. The military must from these guidelines know when they will have won, when they will have lost, and when find themselves anywhere else in-between – when to advance or to withdraw or even retreat, when to attack and when to seek a truce, even surrender.
And thirdly, most importantly of all, Clausewitz wrote, any war depends not just on military power and the political clarity and reasonableness of the non-military leadership, but also upon the support of the whole of the people, themselves, for any particular war. Without this, a war can be lost, and often is lost. The people need to understand the reason for the war, be willing to fight the war and/or to support those in their families and neighbourhoods who fight it on their behalf, in order for the army to win it.
The Russian novelist Leo Tolstoy’s great novel War and Peace is also about this question of what war is. Read it, or if you did so long ago, re-read it. When I re-read it during the lockdown, I found that it had, without me being aware of it, had a major influence on my way of seeing life.
And of course, there are the ancient texts like Chinese text The Art of War by Sun Tzu from the 5th Century BCE that teaches about understanding your enemy in order to win, and importantly to understand yourself, too. Clearly Hamas is better than the IDF at “understanding its enemy” and at “understanding itself”. This explains that the mighty, supposedly impregnable Israeli military has taken 20 months of perpetrating barbaric slaughter on civilians and still has not “won”, nor can it now ever win, having gone against all the civilized traditions of war. It has lost all.
The Thirukkural, an Indian text in the Tamil language also from around 5 centuries BCE, calls for morality to be respected in all behavior, for actions that are just, for compassion and restraint, in warfare, as well as in other aspects of life. Principles and not being deceitful or perfidious are demanded even during the struggle to win a war.
And then the Arthashastra, another Indian text on the relationship between the state and the military strategy from the 4th Century BCE. War, it says, must only be wages as a last resort, and then, there are principles to be followed in the waging of war, like minimizing harm to civilians and respecting certain moral norms, even in regard to enemy combatants.
Ancient Greek texts from 750 BCE developed a common understanding on war, including the need for a clear declaration of war, the need to show respect for negotiations, agreements and treaties, and showing restraint in relation to not only civilians but also to the enemy military.
In Rome, two concepts were codified, jus gentium (“the law amongst nations” or international law), and concept of the law of war, jus ad bellum (or the just war). Jus ad bellum defines how a war should be morally justifiable, based on criteria like having a reason that is a just cause (casus belli), a good intention and that it be a last resort. They too insisted upon the need for a formal declaration of war, how to conduct a war fairly, and how to treat the defeated.
In the Islamic world, the rules of war were written up by Abu Bakr in 632 CE and included rules on how to wage war, including restrictions on harming civilians and also on the destruction of property.
Customs and laws
All this to say that humans have survived by developing practices that include humaneness, even in war. So certain rules and traditions got established as part of customary law, meaning they were widely accepted and adhered to as being binding rules – even before codification, and until now, alongside codification. Laws are, of course, at their best, when they are understood and adhered to by everyone because people agree on them. By that we mean that people obey the laws not just because they are written down in the law and then enforced by some band of armed men (police or an army) but because the laws are good laws.
While Carl von Clausewitz was working on his “On War” treatise which took him 15 years from 1816 to 1830, an important bilateral “Treaty for the Regularization of War” was signed between Spain and Colombia (which then included Venezuela) 1820 to end a war of attrition. It was influential in what later became “international law”.
And around the same time, in the USA during the Civil War, President Lincoln in 1863 issued “General Orders No 100” entitled “Instructions for the Government of Armies of the United States in the Field”, nicknamed “The Lieber Code” after a scholar who drafted the orders. This document also became influential in the codification of the modern concept of “international law”.
And, to put this all in the important context of the on-going anti-colonial struggle, it was this US Civil War that would finally bring an end to slavery in the USA – even if 30 whole years after it had been finally outlawed, for example, in Mauritius when our country was still a British colony. I say “finally” outlawed because for a brief moment after the French Revolution, when slavery was “outlawed” briefly in France, at a time when Mauritius was a French colony, before being fiercely re-instated by the colonists soon after. In Haiti, slavery was outlawed then, that was 60 years before the USA. And a young slave called Louis von Mauritius, because he came from Mauritius, organized a slave rebellion in the Cape Colony where he had been sold, and that rebellion, though put down brutally, was quite successful – in 1808. Just as Ana de Bengal and her two comrades organized a slave rebellion over 100 years earlier, in 1695, here in Mauritius at the time it was a Dutch Colony. So, all this is context for the development of what will become “international humanitarian law” or the “law of war” – and how one judges the waging of different kinds of war.
More direct than the influence of the Lincoln Edict on international law was the influence of the first Geneva Convention of 1864 that dealt with the protection of the wounded and sick in armed conflict, and importantly for the reflection on the present Israeli genocide, the protection of medical personnel in war zones. That was over 150 years ago. It was key in the bringing together existing attempts to regulate warfare, and codify them, and was signed by 12 European states, Belgium, Denmark, France, Italy, Portugal, Spain, Switzerland, the Netherlands, and the German states, at the time, of Baden, Hesse, Prussia, and Württemberg.
The first modern fully-fledged “international humanitarian law” document, worth a quick read in pdf form via google, was drawn up at the 1899 Hague Peace Conference, and is now known by the name “The Hague Peace Conference Convention”. A brief definition, when we talk about “international humanitarian law”, it means that part of “international law” that deals with conflict and war. And this is what we are discussing in this article. At the time, in 1899, the treaty was called the “Convention for the Pacific Settlement of International Disputes” and it codified existing customs and traditions, as well as relying on previous documents like the Geneva Convention and the Lincoln Orders both mentioned above, It was signed by a vast array list of heads of states: the German Emperor, the Emperor of Austria, the King of Bohemia, the Apostolic King of Hungary, the King of the Belgians, the Emperor of China, the King of Denmark, the King of Spain, the USA President; the President of the United Mexican States, the President of the French Republic; the Queen of the United Kingdom and Empress of India; the King of the Hellenes (Greece); the King of Italy, the Emperor of Japan, the Grand Duke of Luxembourg, the Prince of Montenegro; the Queen of the Netherlands, the Shah of Persia, the King of Portugal, the King of Roumania, the Emperor of all the Russias; the King of Serbia, the King of Siam (Thailand), the King of Sweden and Norway, the Swiss Federal Council, the Emperor of the Ottomans (Turkiye), and the Prince of Bulgari.
Then a few more “The Hague Conventions” followed, plus a series of better known 20th Century “Geneva Conventions” and, as the concept of “international law” and “international humanitarian law” took root – all this happened in the additional context of the struggle against the European colonial domination, and in the context of the decimation of World War I and World War II, including the USA’s dropping of two atomic bombs on Japanese civilians, after the fire-bombing of civilians in Dresden and Tokyo. The wars, and the Nazi genocide, exposed for all to see the hideous destructiveness of the colonizing powers, and their tendency towards seeking eradication or outright genocide. This has come to characterize these European powers and the USA that grew out of them. So, people began to rise up against the genocide of colonization and the slavery used for extracting labour from those conquered – whether in the Americas, Australia, Africa or Asia. So, all this meant that “international law” is rooted, too, in the anti-colonial struggle, and has codified important principles around how one resists colonization, including by armed struggle.
The corner-stone of “international law”, the UN Declaration of Human Rights, itself, states in its key part, its Preamble, that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” This is the essence of the justification for the legitimacy of the struggle against colonization and occupation having the legitimate right to resort to “all available means, including armed struggle”. Colonization and physical military occupation is the exact opposite of human rights and the rule of law. Of course, one has clearly, under international law, the right to rebel against occupation, which is what colonization is. Of course, one has the right to rebel against slavery, which is a form colonization has often taken. And this is why it is so absurd for the USA and its European bootlickers to have gone on-and-on about Israel having the right to defend itself. It does not. It is the occupier, for goodness sake. The only right it has, if it does not like the behavior of the occupied, is to withdraw and put an end to its occupation, to put an end to its colonization. It is so simple. Israel is the aggressor already. It is the colonizing power that is imposing the state of siege. The rebellion against it, organized, inter alia, by Hamas, is an anti-colonial resistance movement, and this by definition. It is the moral equivalent of a slave rebellion, as Norman Finkelstein has so eloquently argued.
And all this is why, in the context of the liberation from Apartheid of South Africa, the UN General Assembly “Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation by all available means, including armed struggle”. Today it is the people of Palestine who suffer from the occupation, the colonization and the Apartheid that South Africa suffered from until 1994. That is why we supported the South African resisters and now support the Palestinian resisters. They are struggling against colonization. They are in resistance to military occupation. They are subjected to Apartheid and oppose it. They are kept in a state of siege and on 7 October, they broke the siege and got out of the concentration camp Israel encloses them into. And that is why the Government of Iran supports them. That is why the Ansar Allah Houthis, named after their leader Hussein al-Houthi who led the 2004 uprising that brought the Ansar Allah to power over most of Yemen. That is why almost all countries in the world support Palestine’s right to exist.
That is why less than half of Americans no longer support Israel. That is why all over the world young people and working class people support Palestine.
We have learnt what the Israeli state and state apparatus in the USA are up to: they, the Israeli state and the American state, support the prolonged Israeli colonization of Palestine, the prolonged Israeli military occupation of Palestine, the prolonged Israeli state of siege in Palestine, and the prolonged imposition by Israel in Palestine of a system of Apartheid more abhorrent even than what there was in South Africa.
Now, we have to realize what Israel and the USA did when, in the midst of this genocide, and in part to deflect attention from it, first Israel then the USA proceeded to conduct totally unlawful acts of aggression against Iran.
They had no reason whatsoever to aggress Iran. None.
They invent pretexts as they go along: that Iran has supposedly not respected some technicality about enriching uranium for making bombs, which is a lie, while Israel, by contrast, has made nuclear bombs illegally and keeps them supposedly secret and the USA pretends they do not exist, when they well know they exist; then they say it is a religious state – which Saudi Arabia is, too, only much, much more oppressive, and yet neither Israel nor the USA bomb them. On the contrary they sign Abraham Accords with Saudi Arabia; then, they let the truth out: they want “regime change”, like colonial masters who can decide for others what government they have.
Not only that, but Israel and the USA conduct illegal types of war. Israel just went in with terrorist cells and murdered civilian nuclear scientists and their families. Israel killed the Iranian negotiators. Negotiations, a sixth round, with Israel’s ally the USA, were due in two days times. What kind of warfare is that? Then, the USA just went and bombed nuclear facilities, while it and Iran are both signatories of the UN Non-Proliferation Treaty. Bombed them.
So, when we are talking about Israel and the USA acting illegally, we need to know that they are so desperate, in their falling empires – one world-wide, and the other in the region – that they have sunk to a level of barbarism so low that it is unbelievable. We need to make our Government isolate Israel completely, and break all ties with the USA, instead of tying us by the new UK-Mauritius treaty to a future of slavery to a falling US empire.
I was lucky enough to have studied international law at the University of the Witwatersrand under Prof. John Dugard, the lead counsel of the South African team at the ICJ case against Israel for genocide. Ever since then, I have followed international law, including the USA and Israel’s flaunting of international humanitarian law. Which is why I have written this article to make it easier for our readers to understand what exactly international law is, and how important it is to develop it, not destroy it.
It is not the new thing the US and Europe now refer to that they call a “rules-based order”. No, it is “international law”. And the USA and Europe are doing their best to destroy it.
What was wrong with international law was its Euro-US-centredness. As international law began to shake off this Western domination, the USA and Europe seem to prefer to destroy international law, itself, rather than themselves be subject to it.
It is a strange process to behold.
But remember at all times, it is coherence that wins, and coherence is not military, or even just civilian leaders, but in the hands and minds of the people. And people who are resisting against domination are a powerful force. That is all of us against those who run and support the dying empire.
Lindsey Collen
