San Diego International Law Journal


Jeremy Rabkin

Document Type



These episodes in the history of international humanitarian law deserve to be recalled. They may challenge contemporary dogmas. They remind us that, just below the surface, claims for “humanitarian” principle remain disputable and uncertain, even in today’s world. What “everyone agrees” may not be right. It may not even be what everyone—even everyone of relevant experience and moral seriousness—actually agrees upon.

The exposition here proceeds in six parts. Part II describes the contemporary setting of the legal issue, in the “Basic Rule” of Additional Protocol I, highlighting that this rule has no counterpart in earlier conventions on the law of war. Part III describes the historic roots of this doctrine, in theories originally advanced in Napoleonic France, claiming the authority of Rousseau, then developed and “codified” by German commentators in the mid-Nineteenth Century. Part IV describes the arguments advanced in opposition to this doctrine in the late Nineteenth and early Twentieth Centuries by legal commentators in Britain. Part V describes the evolution of American views in the Nineteenth and early Twentieth Century, starting from a position not all that far from the British view, in principle, then driven to embrace very far-reaching applications of the British view in the stress of all-out war. Part VI describes the evolution of German views, showing connections between the seemingly idealistic formulas of German legal commentators in the Nineteenth Century and the brutalities of German war tactics in subsequent practice. Part VII shows that the historic Anglo-American view was invoked to defend British and American tactics in the world wars and argues that this traditional view remains quite relevant to contemporary debates over humanitarian limits on military action.