The Droit of the Guerre is an expression to indicate the customs and habits morals and legal during a war.

These habits are different according to the place, the history but for some currently have a legal value and are thus obligatory.

History of the morality of the war

First traces of a right of the war

The first traces of a right of the war come to us from Babylonian. This trace it is the Code of Hammurabi, king of Babylon, which, 2000 years before J-C. explain its laws thus imposing a code of conduct in the event of war: “I prescribe these laws so that the fort does not oppress the weak one”. In the old India, Mahâbhârata and the texts of the law of Manou incited with leniency towards the disarmed or wounded enemies. The Bible and the Coran contain them also rules preaching the respect of the adversary. It is always a question of enacting rules which protect the civilians and overcome.

Thus it is possible to affirm that the right of the war is unmemorable: present in all the crowned texts (Judeo-Christians, Moslems, Hindus, etc) and in the comments of these texts, thus the theological sums of the the Middle Ages Summa Raymondi with the {{S|XIII|E}} in Summa Sylvestrina in 1514.

And its principles are also unmemorable and constant, which are summarized and risen from the following principle, that is to say “not to make more evil than it is not allowed”, obligation which concerns the principle of right proportionality that one finds in the Convention of $the Hague, 1907, article 22: “the belligerents do not have an unlimited right as for the choice of the means of harming the enemy”. From where prohibitions such as to make use of poisoned weapons, pollutant gases, etc They are constant principles which belong to all humanity. One finds examples of this preoccupation with a limitation of the acts and means implemented by the belligerents, in all the places, all times: traces which can be seen in the Bible, (in particular in Deutéronome), in the Coran which prohibits to cut the fruit trees, to poison a source of water, to destroy harvests, to devastate a ground, to mutilate a man, etc

The rules of the right of the war as for the means implemented, were such, that, in theory, with the Middle Ages, it was interdict to use the arcs and the arrows, with the reason which one could kill the remote enemy and in the back. It was initially what one could call the war or the chivalrous and noble combat with a combat with the body with body. But, the wars becoming more important, the chivalrous Rules attenuated.

These rules were initially enacted in religious form, and one finds of it trace in all the books crowned of civilizations which left texts, before being codified in a form secularized at the 16th century by Grotius. Grotius, author of the Of swears ac bellis and pacis the war and of peace, is a lawyer of first importance to have the first given a secularized version of the right. Grotius is indeed the first to distinguish the Droit the right of the war, in particular of the Religion, for the émanciper of the latter. In the preliminary speech of its work, he affirms that the Law of nations - aujourd' today named International law - can be built, when well even God would not exist. Grotius in the Netherlands, is, with Pufendorf in Germany, and Barbeyrac in France, - its translator, most important of the jurisconsults, founder of the right and the policy secularized, which all will take again the political Philosophie of Hobbes to Rousseau until German philosophy.

Contents of the right of the war

The variety of the constraints imposed by the right of the war, is perhaps what strikes initially the spirit, so that they can appear more different than similar. However, right of the war in the various treaties or texts enacting of the rules, if it could intervene to regulate more particularly such or such point (for example right of capture and prisoner salary, allowed weapons, the division of the spoils, etc) and if it also could introduce differences compared to other codes which preceded it on such or such other point, concerns a precept founder invariant. It is a question of making only the evil useful for the objective of war: not to make more evil than necessary is the rule which is found everywhere, and in all civilizations. What expresses Montesquieu in 1748 in “the Spirit of the Laws” which writes explicitly: “the law of nations is naturally founded on this principle that various the Nation S must be made in the Guerre less evil than it is possible, without harming their true interests”.

So that two fundamental injunctions rise from this principle, that is to say the distinction between civil populations and combatants, and the principle of proportionality, - C' be-with-to say to resort only to violences and means of violence proportioned to the objectives which are those of a particular armed conflict. The first principle forces the rule not to kill innocent, supposing the distinction between civilians and combatants. It has as a consequence the prohibition of the murder of the women and the children, even of soldiers not carrying the weapons since the “naked soldier” becomes again a man, according to the logic of the right of the war stated since always. For example, in India, the laws of Manou impose that the combatant strikes neither that which is disarmed, neither that which goes as prisoner, neither that which flees, neither that which is with ground “neither a deadened man, neither that who has armor, neither that whose weapon is broken, nor that which is seriously wounded”. One of the three great military treaties of the ancient China, with prescribed not to attack weak, with the women and to carry help to the old men and the children: “you will not attack those which are out of state to defend oneself. After a combat you will have a particular care of the casualties”.

The second principle implies to prevent unnecessarily killing, of the soldiers, unnecessarily to destroy, of the resources, once the objective of the war reached, and not to employ that weapons adapted so that objecif war requires. Not to destroy nor to impose sufferings beyond what the sought-after goal requires. All in all, the war is not an act of brutality, it should not give place to cruelties without reason, with useless acts of violence: all is not allowed, even if the war leaves the ordinary course of the government, because it raises of a goal that was given the controlling power.

The idea that there exists a right of the war concerns on the one hand, the juice AD bellum , that is to say the right to make the war or to enter in war, supposing a reason such as denying oneself of a threat or a danger, and it also supposes a declaration of war which prevents the adversary: the war is a honest act, and in addition, the juice in bello, that is to say the right during the war, which implies to behave as invested soldiers of a mission for which all violences are not authorized. In all the cases the idea even of a right of the war rests on an idea of the war which can be defined like an armed conflict, circumscribed in space, limited, in time, and by its objectives. The war starts with a declaration (war), is completed by a treaty (peace) or agreement of rendering, division, etc

Rousseau, after Hobbes defines the war as relation of State in State , in which the men are enemy only within the framework of the random and circumstantial situation of the war. The men are not enemy by nature, nor durably. They are not enemy as a man, but according to the circumstances, limited, of conflict between States of which they are recipient. They are not enemy solely like Soldats”. The war made clash combatants, not men: the civil populations are excluded from it. Definition of the war and doctrines which prevail until today, begun again in 1801 by the right, by Portalis, lawyer who wrote the Civil code.

Clausewitz in its treaty Of the war will still specify, in a way complementary to Rousseau, the various characteristics of the war, which form the traditional design. It is on the basis of this theory of the war that is built a right of the war. The war, such as Clausewitz defines it, is a political act “prolongation of the policy by other means”, which means that it is an act of violence pure, neither unlimited, nor without conditions. It is a question “of forcing the adversary to carry out our will” the war '', p 51. The war does not constitute an aim in itself, it is a means, with the service of a goal, policy. It is not an independent phenomenon: it is an instrument with the service of goals which exceed it. p 706

The principle founder of the right of the war, still called laws and habits of the war or law of nations, was codified in the form of conventions at the beginning of the 20th century (Conventions of $the Hague, 1899 and 1907). The right of the war initially was the work of private individuals. - François Lieber writes, during the American Civil War, the Instructions for the armies in shift of the American army, which prohibit the acts of cruelty, of revenge, the wounds except combat, torture in order to obtain information, the seizure of the private goods, the violation of the churches, etc

Constitution of the modern right of the war

Antiquity with Grotius and Rousseau one passes from the habit to the " right of the gens" to see

humanitarian: http://www.aidh.org/Droit_Humanitaire/02Hist_anc.htm

Antiquity with Grotius and Rousseau the habit, initially carried by the oral tradition, then by texts of various wisdoms, is erased, to yield the place to the right.

Grotius, losqu' it writes the “swears belli ac pacis” (right of the war and peace), gives to the right of the war its base and its framework which will remain until the contemporary time the references for the international law as regards armed conflicts, that is to say the war defined as a regulated, limited conflict and giving place to legal provisions which are constraining. Grotius, founder of the law of nations will see his work prolonged by Jean-Jacques Rousseau. In the social Contract , this last states the principle of the war (of State in State), between combatants who are soldiers (excluding consequently the civilians) what forms the base of the right of the war. Rousseau " the war is thus not a relation of man with man, but a relation of State in State, in which the private individuals are enemy only accidentally, not like men, nor even like citizens, but like soldats" Social, I.6

On this basis the right will be able to impose the distinction between the soldiers, whom one fights, and the civilians, who must be saved. In the same way, distinction between military and objective objectives civil.

And in the history one can note a stage towards the constitution of the right of the war at the time in 1863, the president of the United States, asks a lawyer, Francis Lieber, to develop a series of instructions for the troops engaged in the American Civil War. Once again, it is about the same objective: to regulate the war by limiting the extent of violences and to avoid those which are not necessary to the military objectives that a State was fixed. There is not yet business there with a true treaty of the right of the war, but with a coding of legal provisions having value of constraining obligation.

It is only later, with Conference on peace of $the Hague in 1899, qu ' appear unit of laws on war, which will be then developed by successive Geneva Conventions which will supplement and detail the various aggressions prohibited, towards the civilians, and making use of techniques considered to be illicit.

International law and humane International law

What we name today “International law” is an legal order whose first elements started to appear at the end of the Moyen-âge and who built himself in the middle of the 17th century with the Traités of Westphalia. Since, it developed and transformed, but without is not called into question its fundamental structure of right interetatic. To the right of the coexistence a right of the co-operation was added again, and on the relational right was grafted an institutional right, but total coherence remained unchanged. The appearance of the international law is related to the emergence of international relations between States with the modern direction, that is to say sovereign political entities inside and within the limits of a territory. The State accepts by definition, since sovereign on his territory, the existence legitimates beyond his borders of other political entities being defined themselves by their limits. This type of organization does not abolish the possibilities of conflicts and of wars, but, in general line, the conflicts relate on the limits, not to the existence of State. Moreover, the mutual recognition of the existence of the States allows de facto their citizens to profit from a recognition of their statute abroad (a fact concretized nowadays by the existence of an allowing passport of transborder displacements). Consequently, this reciprocity is partly at the origin of the right of the war, since by admitting the existence legitimates foreign citizens, it poses the problem naturally to become to them in the event of conflicts between States (in particular with regard to the statute of the non-combatant civil populations). It is the nature of the international relations between States which dictated the principles which control the legal order, that is to say sovereignty and the equality.

The International law of the armed conflicts [[right of the armed conflicts] - or " Right of the guerre" - is a whole of rules which aim to limit violence and to protect the basic rights from the human person in the event of war. This denomination first is since the II° world war, and the Geneva Convention of 1949, often replaced by that of " International law humanitaire" , to emphasize some more the fine humanitarians.

humane International law, Human rights The formation of the humanitarian right has three origins, and is done starting from three convergent currents. It is about the right known as " right of Genève" , i.e. treaties worked out under the auspices of the ICRC, which aims at protecting the victims; right named " right of $the Hague " , resulting from the conferences on peace from 1899 and 1907 it relates to the control of the means and the methods used; and finally, 3° running, the action of the United Nations (UNO) which takes care that the human rights are respected in the event of armed conflict.

The humane International law, which aims at protecting the rights of the person, has objectives which take support on the human rights. They form nevertheless two branches distinct from the right.

The humane International law is the whole of the principles and the rules which limit the recourse to violence in period of armed conflict. These principles and these rules have two objectives: to protect the people who do not take part or more in the hostilities and to limit the methods and the means of making the war.

Current problems

Problem, theorized by Carl Schmitt: the return of the concept of “war right” doctrines of the war right to the 20th century. In two fundamental texts: the Theory of the partisan , 1963, and Nomos of the Earth 1988, Carl Schmitt studies the new characteristics of the war and the turning taken at the 20th century. Its analyzes, of the end of the juice publicum europaeum , are considered unanimously as founders of the analysis and the reflection on these questions, eminently of topicality. That is to say reports/ratios of the war and the right of the war with the inclusion of the human rights; what becomes the juice AD bellum - right to make the war - and juice in bello - right in the war with the return of the concept of war right. These analyzes constitute today the theoretical base of the critic of pacifism, on the one hand, and of the American practice of the war and the ideology which accompanies it by primarily, on the other hand. Indeed, joining again with the moralism of the medieval Christian doctrines, into force until the 16th century century, which is in particular theorized by Saint Thomas d' Aquin in his Summa Theologica (1273): “So that there is cause right, it is necessary that those which one attack deserved by a fault of being attacked” Holy Thomas d' Aquin poses like condition with the war right, in addition to the right cause, the authority of the prince and “the right intention”, i.e. to have in sight the community property and not his personal interest, Carl Schmitt shows that the recourse to the concept of war right, opens with the possibility of the unlimited war, contrary with the tradition of the law of nations established by the European right, posing the war as limited [on Carl Schmitt and.

Moreover the right of the war the prohibition of the all-out war poses: The international law does not authorize the all-out war which implies the rejection of any rule, of any principle of control, because it is the negation even right.

In parallel and finally, the existence of a right of the war is what makes it possible to give legal contents to the concept of Terrorisme. Also Jacques Derrida points out the base which makes according to him consensus:

" If one refers to the current or explicitly legal definitions of the Terrorisme, that does one find there? The reference to a crime against the human life in violation of the laws (national or international) there implies at the same time the distinction between civilian and soldier (the victims of terrorism are supposed to be civil) and a political objective (to influence or change the policy of a country by terrorizing its civil population) ". What he opposes to the confusion, which he analyzes like politically interested, made at the time of the recourse to the concept of " terrorism international". Derrida refers here to the use, abusive according to him, which in is made by the United States, also involving dissensions with UNO.

From there, one understands that transformations undergone by the concept of Guerre and by the right of the war, after the II° world war and in the recent topicality still, and the way in which they are included/understood and interpreted, in particular starting from the analyzes of Carl Schmitt with the which referent all the lawyers of the international law dealing with these questions, constitute important issues as for their practical translation. All the current studies on the war and the right of the war, are posed in these Derrida terms: can one preserve the traditional terms of the juice publicum europeaum (limited war) or on the contrary to leave there (unlimited war), question which applies to the war itself and for his means. And still, all the lawyers put the question to know if one can and how, to distinguish the statute from the combatants. Questions which arise in theory and in practice.

Jacques Derrida precise: " A critical reading of Carl Schmitt, for example, would be extremely useful to take into account, also far which it is possible, the difference between the traditional war (confrontation direct and declared between two enemy States, in the great tradition of the European right), the “civil war” and the “war of the partisans” (in its modern forms, although it appears, Schmitt recognizes it, at the beginning of the 19th century).

The international courts, and of ONGs such as Avocat without borders - where they can act - are interested finally in the sociopsychologic after-effects whose polemology showed that they nourish often and a long time hatreds which are the germs future wars. But of the unsolved questions are still posed with the Polémologie, with the Irénologie as with the Droit of the war , in particular that of the treatment of the responsibility, possibly shared, of the after-effects of war and the impacts differed from the use of some weapons (Nuclear weapon, chemical weapons, Défoliant S used in Vietnam, shell or balls with Uranium impoverished, etc). Another question is that of the legal status of the ammunition lost at the time of the wars, and the ammunition voluntarily massively immersed, not exploded recovered on the battle fields, or not used.

Within the international community, the question of the Right of interference or the Precaution principle are also in debate, with possible consequences on the Right of the war.

Random links:

Number of Motzkin | Championships of artistic Europe of gymnastics 2005 | Range hood | Maurice Celhay | Yves Boivineau