The History and Development of the Law of Armed Conflict (Part II)

• Jurisdiction: South Africa
• Citation: (2015) African Yearbook on International Humanitarian Law 1
• Published date: 23 May 2019
• Date: 23 May 2019
• Pages: 1-23

1

The History and Development of the

Law of Armed Conict (Part II)*

Arthur van Coller**1

Abstract

This paper is Par t II in a two-pa rt series, and continues t he investigation

into the history of armed con ict and its inuence on t he development of

the Law of Armed Con ict (LOAC). Part I considered the ea rly history of

armed conict a nd its implications on the development of the LOAC. The

historical events leadin g up to The Hague Peace Conference of 1907 has

shown that the development of armed con ict is closely linked to scientic,

military a nd industrial tech nology. Part II considers the development of

armed conict du ring the subsequent time period from 1907 to the prese nt

day. The paper concludes with some prognostic obser vations. Thus, the

developments in the LOAC reect an attempt to reg ulate specic weapons

that have developed as a result of technologic al advancements. Fift h-

generation warfare w ill see new dimensions a nd perspectives rega rding

the options available to milita ry and political commanders and wi ll be

decidedly inuenced by i nformation dominance t hrough sustained c yber

technologies and milita ry force.

Keywor ds: history, law of armed conict, f uture developments

1 INTRODUCTION

This paper is Part II i n a two-part series, and continues the investigation

into the history of armed conict a nd its inuence on the development

of the Law of Armed Conict ( LOAC). Part I considered the early history

of armed conict and its implications on the development of the

LOAC. The historical events leading up to The Hague Peace Conference

of 1907 have shown that the development of armed conict is closely

linked to scientic, milita ry and industrial technology. Part II considers

the development of armed conict during the subsequent time period

from 1907 to the present day.

* Part I of this a rticle appeared in AYIHL (2014) 44-67.

** Senior lecturer, Nelson R Mandela Sc hool of Law, University of Fort Hare;

avancoller@ufh.ac.z a.

(2015) African Yearbook on International Humanitarian Law 1

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2 AFRICA N YEARBOOK ON INT ERNATIONAL HUMA NITARIAN LAW

2 THE HAGUE PEACE CONFERENCE OF 1907 TO THE

GENEVA CONVENTIONS OF 1949

From 1907 to 1949 there were 120 recorded armed conicts,1 which

included 94 non-international armed conicts (NIACs) and 26

international armed conicts (IACs). During the period leading up to

1910, Britain was the predominant global power, but the economies

of the United States and Germany outgrew that of Britain in 1872 and

1901 respectively. Japan also became industrialised a nd developed into

the supreme power in Northeast Asia by 1890.2 These states started

building military forces that could project their power and prestige.3

Tension grew as Britain sought to maintain its dominant position, while

Germany perceived France and Russia as obstacles to its continued

development.

The Bryan Treaties4 of 1913 represented a further attempt to limit

the freedom of states to resort to war. Second-generation war, however,

started in 1914 with the so-called Great War and comprised gathered

manpower and stalemated trench warfare aimed at the destruction

of the enemy’s ghting force through massed repower.5 States were

under the i llusion6 that the new technology would curtail the dur ation

of war and its impact on civilians.7 The destructive nature of this

armed conict was, however, not anticipated8 and states were forced

to question the viability of war as an instrument of national policy as

the costs of conquest outweighed the benets.9 This was the impetus

for the development of the League of Nations, which was intended to

prevent future wars and the unjusti ed use of armed force.10 The League

of Nations Covenant (signed 1919; effective 1920) was followed by the

Draft Treaty of Mutual Assistance in 1923, which subsequently failed;

thereafter states drafted the 1924 Protocol for the Pacic Settlement

of International Disputes.11 This Protocol all but produced a general

1 Sibylle Scheipers ‘Fighting ir regular ghter s: Is the law of armed con ict

outdated?’ (2013) 43:4 Parameters6.

2 Ian Morris War! What is it Good For? (2014) 241.

3 Morris op cit note 2 at 240.

4 Jackson N Maogoto Battling Terrorism: Legal Perspecti ves on the Use of Force and the

War on Terror (2013)22.

5 See Jea n-Jacques Rousseau The Soc ial Contract (200 4; orig pub 1762) 68; Carl

von Clausewitz O n War (1832); Max Weber The Theory of So cial and Economic

Organization (1915).

6 Jay Winter (ed) Legacy of the Great War: Ninety Years On (200 9) 40.

7 Gerhard von Glahn and James R Taulbee Law Among Nations: An Int roduction to

Public International Law 9 ed (2010) 606.

8 William K Storey First World War: A Concise Global History (2010 ) 1.

9 Maogoto op cit note 4 at 23.

10 Maogoto op cit note 4 at 24; Glahn and Taulbee op cit note 7 at 74.

11 For an histor ical overview of in struments (1815-1945) on the use or threat of

force by states, see James Crawford Bro wnlie’s Principles of Public Interna tional Law

8e d (20 12) 74 4-746 .

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