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

29 June 2021

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'.

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