Michael Bryant

The law of war: conflict has always had its limits

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The waging of war has never been a pure free-for-all. Every culture has had a sense of limits: when war could be legitimately declared and how it would be legitimately waged. For ancient civilisations, war was a means of preserving the cosmic order. The ancient Egyptians believed their wars had to be sanctioned by the gods. Under the Zhou dynasty, Chinese armies would wage war only after oracles were consulted. Similar patterns are observable from the ancient Hindus to the North American Indian tribes.

The Second Lateran Council in 1139 banned the crossbow and ballista, the weapons of mass destruction of their day, because these armour-piercing instruments were considered too violent. By the 1300s a body of customary law had come into being to regulate the behaviour of knights, the jus militare (law of the knights), or what we today call ‘chivalry’. Formal military courts of chivalry were created to try cases of alleged violations. In the High Middle Ages, these legal notions evolved into various regal ordinances to protect civilian populations against murder, rape, imprisonment and ransoming.

During the High Middle Ages, too, kings issued laws that imposed restrictions on war-making. The first was King John’s Constitutions of 1214, which broadened the class of protected persons in wartime to include not only the Church but peasants and property. A still more important law may have been King Richard II’s Ordinances of 1385 banning robbery, plunder and killing or capturing of unarmed women and clergymen during battle. The Ordinance of Charles VII of France (1439) and the Scottish Articles and Ordinances of War (1643) sustained these protections of civilian populations against murder, rape, imprisonment, ransoming and plunder.

It took until the 19th century for the law of war to be conceived as a body of international legal principles, and it wasn’t until after the second world war that a truly international judicial reckoning was deemed necessary.

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