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9.1 Have the laws of war made war less horrific?

1. To what extent are those who focus on the growing web of the laws of war too energized about what is 'on the books' rather than what actually exists in the theatre of war?

  • Social constructivists would argue that what is 'on the books' cannot be separated from the theatre of war. This is due to their conviction that structures and agency are closely interrelated and constitute one another. Thus, the values and norms captured in the books inform what occurs in the theatre of war and vice versa. Of course this happens at different rates and at different political and historical periods of time.
  • Thus, it is not unlikely that some constructivists might agree with the realist claim that, despite the books, the conduct of war is determined by states self-interests. The difference, however, would be that realists are likely to link such claims to either arguments of human nature or the materially pre-determined anarchical structure of international relations. Such essentialized arguments would be refuted by social constructivists, arguing that both structure and agency are determined and shaped by international actors and their identification with particular norms and values, which change over time.

2. If the laws of war did not exist, would even the most powerful states feel the need to regulate their conduct?

  • Social constructivist would stress that the very fact that laws of war exist is a self-regulatory procedure among states. In other words, rather than an essentialized human nature claim (as realists would be likely to highlight), constructivists maintain that any rule-setting emerges from changing identities among states/global actors and their perception of legitimacy. These values and norms are then institutionalized through international law, which leads to socialization and diffusion.

3. Would the world be better or worse off without the laws of war?

  • Supporters of the laws of war usually stress that, while killing in combat remains to be considered acceptable (under the just war theory – see ch. 13), those military instruments considered too inhumane (e.g. land mines, chemical weapons) have been banned under international law. This, they argue, serves to reduce war atrocities particularly with regards to civilian casualties. 
  • Others argue for the inadequacy of the laws of war and rest their arguments on the shortcomings of such international regulation on the conduct of war. In particular they highlight that international law applies to state actors only and argue that states will only comply with such laws if it serves their own self-interest. Thus, given the increase of military action by non-state actors in recent years, such views argue that international law does not reduce war crime violations to the extent that is often claimed.