While the formal rules of international humanitarian law (IHL) have been elaborated through centuries of state practice, judicial decision-making, and legal scholarship, their modern form was codified by the UN Charter in the aftermath of World War II. Among other things, the UN Charter sets out a series of legal definitions meant to distinguish permissible from impermissible conduct during—and causes for—war. But the historical origins of IHL can be traced back to the 1648 Peace of Westphalia, the first great European charter that ended the 30 Years’ War and gave Europe what may be described as its first international constitution. Despite this long history, international law scholars have increasingly observed that the concepts and enforcement mechanisms provided by IHL have proved inadequate to prevent or even decisively condemn atrocities such as the ongoing genocide in Gaza. What, then, is the purpose of IHL? And what are its possible futures?
This course will provide a critical introduction to international humanitarian law and the law of armed conflict, from 1648 to the present day. Setting IHL within its proper context and taking into account its uses in justifying colonialism, imperialism, and the spread of capitalism, we will evaluate the definitions and deployments of the law of war against the realities of conflicts from the late 20th and early 21st centuries, as well as various attempts to adjudicate the horrors of war, from Nuremberg to the present day. Reading widely from treaties, UN Charters, caselaw, and international legal scholars from Grotius (often referred to as the “father of international law”) to Antony Anghie, David Bosco, and Rob Knox, we will ask: Is there a useful role for IHL in setting and enforcing international standards of conduct? Is there such a thing as a just war? Or must we conclude, with Georg Lukács, that “The question of legality or illegality reduces itself to a mere question of tactics”?
