QUO VADIS? CONCEPTS OF MORAL AND LEGAL PHILOSOPHY UNDERPINNING THE LAWS OF ARMED CONFLICT
Ted van Baarda
Abstract In the present article, the Law of Armed Conflict (LOAC) will be discussed from the perspectives of legal and moral philosophy. Five theoretical concepts will be used for the purposes of methodical analysis. They are: (a) source, (b) validity, (c) applicability, (d) content, and (e) method. As a caput of international law, LOAC holds an unusual position. When analysing LOAC by means of the theoretical concepts mentioned, it transpires that LOAC can frequently not be seen as law in an Austinian sense, because a state-sovereign is no longer able to enforce it as a result of resistance by the enemy. Struggling with this point, the international judiciary invokes ethical concepts such as ‘moral law’ or ‘elementary considerations of humanity’ and the Kantian categorical imperative, in order to make clear that LOAC remains valid regardless. The analysis on the basis of the five concepts also demonstrates that various schools of thought have informed LOAC ranging from deontology to natural law, each pulling the development of LOAC in a different direction. Noteworthy is the flavour of technocratic neutrality in the development of positive LOAC following the mid-19th century, thereby furthering, in terms of legal positivism, the development of a highly detailed and complicated body of law. The author agrees with Roberts that the international society has, in the process, lost something: the sense that rules arise naturally out of our societies and our armed forces, and that their flexibility came from their customary character, including the value attached to honour chivalry and mercy.