New Book by Professor Andrew Clapham Examines How the Concept of War Affects the Application of the Law

In his new book War – published by Oxford University Press in its Clarendon Law Series – our Former Director and Faculty Member Professor Andrew Clapham discusses the relevance of the concept of war today and examines how our notions about war continue to influence how we conceive rights and obligations in national and international law.

‘The idea of war often operates to legitimate something that would otherwise be illegal. Killing people is normally outlawed; destroying property is normally something that ought to be punished or compensated; seizing property is normally theft; locking people up should be justified through elaborate procedures. But when one can claim ‘there’s a war on’, the justifications for killing, destroying, seizing and interning apparently become self-evident’ underlines Professor Andrew Clapham.

‘With this book, I take a step back and, by looking at the contemporary relevance of the concept of war, I question whether claiming to be in a war grants anyone a licence to kill people, destroy things, and acquire other people’s property or territory’ he adds.

A Call to Rethink the Ancient Rules

The book provides an overall account of the contemporary law of war and a detailed inquiry into whether states should be able to continue to claim so-called belligerent rights over their enemies and those accused of breaching expectations of neutrality, including those ancient rights connected to booty, blockade and enemy property at sea.

‘The point I want to highlight is that old ideas about what is permissible in war have survived when many of them should have been buried along with the legal institution of War’ explains Professor Clapham.

In his analysis, Professor Clapham separates the old idea of War with a capital ‘W’, which allowed states to claim belligerent rights based on the ancient practice, from today’s reality where armed conflicts and contemporary wars are regulated by detailed treaty provisions.

He concludes that claiming to be in a war or an armed conflict does not grant anyone a licence to kill people, destroy things, and acquire other people’s property or territory.

A Kenyan Navy Patrol vessel conducts navigational drills with Type 23 frigate HMS Monmouth (background) in the Indian Ocean.

Inspired by Professor Clapham’s Time at the Geneva Academy

Professor Clapham started to work on this book while he was the Director of the Geneva Academy.

‘As Director of the Geneva Academy, I hosted many discussions on the laws of war. I was often told that the fact of being in a war meant one had to be 'pragmatic' or 'realistic' and refrain from making suggestions that would make it ‘impossible for parties to win the war’. But why should we make it easy for someone to win a war they are not entitled to fight in the first place? I felt the justification for fighting a war must affect what the law entitles a state to do. So I looked a bit deeper into the topic and started imagining this book’ explains Professor Clapham.

Professor Andrew Clapham speakes at a Geneva Academy event

A Future Reference for our Students and a New Course on 'Human Rights and War'

While this book will be of use to anyone interested in contemporary international relations, it is most specifically aimed at graduate law students who want to understand the ways in which the concept of war is relevant to the application of law today.

For the upcoming 2021-2022 academic year, Professor Clapham will integrate the reflection and content of his new book in his LLM course, which will be entitled 'Human Rights and War'.

MORE ON THIS THEMATIC AREA

Alessandra Spadaro during the defence of her PhD thesis News

Our Former Teaching Assistant Alessandra Spadaro Successfully Defended her PhD Thesis

7 June 2021

While most of the existing scholarship focuses only on security detention or internment by armed groups in non-international armed conflicts, her thesis also studies the detentions of armed group members by their own group and criminal detentions for crimes related to the conflict as well as common crimes.

Read more

A Royal Air Force CH-47 Chinook helicopter arrives to extract troops at the end of an operation in Afghanistan News

New Guidance on How to Integrate a Disability Perspective into Military Manuals

28 June 2021

Our new Military Briefing: Persons with Disabilities and Armed Conflict provides guidance to the armed forces on how to integrate a disability perspective into military manuals and the training of their militaries.

Read more

SRSG Martin Kobler addresses a ceremony in Goma, North Kivu province, to mark the destruction of weapons and ammunitions on 20 November 2013. Event

Expert Consultation on the Role of Business in Transitional Justice Contexts

23 September 2021, 13:00-15:00

This online consultation aims at providing inputs to the UN Working Group on Business and Human Rights for a guidance note on the role of business in transitional justice contexts.

Read more

 Taliban fighters on a truck in Kabul, August 17 2021 Event

Afghanistan

28 October 2021, 15:00-16:00

This online IHL talk aims at shining light on some of the many legal, political and protection-related challenges stemming from the situation in Afghanistan.

Read more

Ukraine, damaged bicycle and car in front of a destroyed building Short Course

Protection of Persons and Property in International Armed Conflict

18 November - 23 December 2021

This short course, which can be followed in Geneva or online, examines the conduct of hostilities in situations of international armed conflict, also known as the Law of The Hague.

Read more

An aerial view of camps for internally displaced persons (IDPs), which have appeared following latest attacks by M23 rebels and other armed groups in the North Kivu region of the Democratic Republic of the Congo (DRC). Short Course

International Refugee Law

9 March - 13 April 2022

This short course, which can be followed in Geneva or online, analyses the main international and regional norms governing the international protection of refugees. It notably examines the sources of international refugee law, including the 1951 Geneva Convention Relating to the Status of Refugees, and their interaction with human rights law and international humanitarian law.

Read more

Mine Project

Business, Human Rights and Conflict-Affected Regions

Started in July 2021

This project aims to further identify and clarify policies and practices for States and business, including public and private investors, across the full ‘conflict cycle’ and the ‘Protect, Respect and Remedy’ pillars of the UN Guiding Principles on Business and Human Rights.

Read more

A session of the UN Human Rights Committtee at Palais Wilson Project

Implementing International Humanitarian Law Through Human Rights Mechanisms

Started in April 2019

Resulting from traditional legal research and informal interviews with experts, the project aims at examining how – if at all possible – IHL could be more systematically, appropriately and correctly dealt with by the human rights mechanisms emanating from the Charter of the United Nations, as well from universal and regional treaties.

Read more

Cover page of the book Publication

War

published on July 2021

Andrew Clapham

Read more