Theoretical understandings of war have been dominated by the thought of Clausewitz for a number of decades. His thought is valid in many respects, but for various reasons it is open to misinterpretation and misunderstanding; furthermore, a number of his observations (particularly on the prevalence of chance and uncertainty in war) are not fully explored and substantiated theoretically. This thesis is an attempt to present and elucidate a new theoretical understanding of war's nature which complements Clausewitz's theories and addresses these concerns: this is the understanding of war as a form of violent conflict which is not bound by rules. The thesis consists of five main chapters. The first is an in-depth study of Clausewitz, which will provide an exegesis of his theories and highlight the deficiencies in his thought, before positing how understanding war as ‘violent conflict without rules' could be used to address and explain them. The second chapter is a study of the theory of rules, examining in particular the role they play in moderating conflict: we can find that amongst other things, rules lend predictability and psychological security to a contest, restrict the scope of physical harm and tend to preserve the political and social status quo. As war lacks rules (in the sense that there are no ‘rules of war' as there are ‘rules of chess'), it therefore lacks these benefits. A following chapter on the laws and customs of war will address cases where war appears to be bound by rules, and clarify my position. The final two chapters explore the implications of war's lack of rules with reference to two areas which are most commonly associated with war. The fourth chapter on strategy will explore how this military concept is necessitated by war's ruleless nature; the final chapter will examine the uniquely violent, physical nature of war through the same theoretical prism, and will show how the technological innovation associated with war is a consequence of its lack of regulation, and a potent contributor to the chance and uncertainty which plagues warfare.

<p>What determines variation in military behavior toward civilians? In this dissertation, I examine the determinants of military behavior toward civilians, exploring the factors that lead armed groups to brutalize—or respect—civilian populations. I argue that military cultures embodying norms of civilian immunity can shape combatant preferences and, ultimately, military conduct, leading to battlefield restraint toward civilians. Focusing on case studies of the U.S. Army in Vietnam and Iraq and the Ugandan military, I examine the effect of military culture on conflict behavior utilizing detailed qualitative and quantitative data at macro- and micro-levels of analysis, including historical case studies, combatant survey data, field interviews, and a quantitative analysis of U.S. Army war crimes prosecution data. I find that military culture can fundamentally transform the preferences of combatants at all levels of the military organization, increasing combatants’ preferences for respect for civilians and producing restraint toward civilians in conflict. The findings of this research thus show that military cultures based in norms of civilian immunity can lead to the protection of civilians in war, even in the face of significant countervailing pressures that would otherwise produce mass civilian victimization.</p> / Dissertation

Paragraphs 138 to 140 of the Outcome Document of the 2005 UN World Summit not only elevated the element of prevention to a prominent place within the principle of “responsibility to protect” (R2P), but also restricted the scope of R2P to four specific crimes under international law: genocide, war crimes, ethnic cleansing, and crimes against humanity. This thesis explores the conceptual and practical consequences of linking R2P to the concept of international crimes, with a particular focus on the preventive dimension of R2P, the socalled “responsibility to prevent”. To date, much of what has been written about the “responsibility to prevent” borrows primarily from conflict prevention theory and practice. Such conflict prevention inspired accounts of the “responsibility to prevent” tend to depict the principle as a long-term agenda that seeks to build societies resilient to atrocity crimes; that rests primarily on pillars one (state responsibility) and two (international assistance and capacity-building); that is supportive rather than undermining of state sovereignty; and that can largely adhere to the traditional conflict prevention principles of impartiality, consent, and minimal coercion should more direct prevention efforts become necessary. Drawing on literature from criminology, this thesis develops an international crimes framework for operationalizing the preventive dimension of R2P. The framework, combined with three case studies of international crime prevention (Bosnia 1991-1995; Kenya 2007-08; and Libya 2011), challenges key assumptions of the conflict prevention accounts, arguing that linking R2P to the concept of international crimes turns the “responsibility to prevent” into a principle that is more focused on the short-term, rather than on so-called root causes of atrocity crimes; more focused on individuals, rather than on state structures and capacity; more partial regarding perpetrators and victims; and more coercive, intrusive, and controversial than is commonly acknowledged in academic writing and policy debates on the subject. More broadly, the thesis concludes that taking R2P’s focus on the prevention of international crimes seriously requires re-rethinking the “responsibility to prevent” in important respects.

Esta tese tem por objetivo criticar a \"Doutrina Bush\", cujos termos foram lançados na Estratégia de Segurança Nacional dos EUA de 2002 e têm orientado a política externa da atual Administração daquele país no sentido de uma maior assertividade do poder militar estadunidense contra as ameaças, atuais ou futuras, que ponham em risco a sua posição de dominância no plano internacional, em particular no seu pleito de legalidade da legítima defesa chamada preemptiva. A este respeito, esta tese faz duas afirmações centrais: 1) que, ao contrário do que os termos em que está formulada nos querem fazer crer, não se trata de uma política de ataques preemptivos, mas sim de ataques preventivos, que não podem ser subsumidos ao instituto jurídico da legítima defesa; 2) que qualquer política de ataques preventivos decididos de maneira unilateral é incompatível com a manutenção da ordem no atual sistema em que se estruturam as relações internacionais na atualidade. Para tanto, na primeira parte da tese, é analisada a justificação político-filosófica da legítima defesa, cujo reconhecimento nos sistemas jurídicos positivos se revela uma condição racional de sua legitimidade, bem como, a partir dos limites marcados pelos princípios justificantes - agressão atual e necessidade dos meios empregados na defesa -, é apresentado um conceito ideal de legítima defesa; na segunda parte, expõe-se a regulação do instituto da legítima defesa no direito internacional, especialmente na Carta da ONU, contra a qual é, em seguida, comparada a proposta de \"legítima defesa preemptiva\" feita pela \"Doutrina Bush\". Desta se conclui que, nos termos em que é formulada, não pode ser considerada como legítima defesa, porque dispensa o requisito do ataque atual, em curso ou iminente, revelando-se verdadeira ação preventiva, cuja atribuição somente deve caber a um órgão que represente a comunidade internacional, no caso, o Conselho de Segurança das Nações Unidas, sob pena de fragilizar a proibição do uso da força nas relações internacionais. Por outro lado, entendida a preempção nos estreitos limites da resposta antecipada a um ataque iminente, defende-se que seja abrangida pela permissão do uso da força em legítima defesa, desde que sujeita a alguma forma de controle posterior. / This thesis intends to refute the so-called \"Bush Doctrine\", whose terms have been laid down in the National Security Strategy of the United States of America in 2002, and have since then oriented the present Administration\'s foreign policy towards a greater assertiveness of military power against either present or future threats to its dominant position in international relations, in particular its proposition of a right to preemptive self-defense. In this respect, this thesis advance two central claims: 1) that, contrary to what the actual terms in which this doctrine is formulated might want to suggest, it is not a policy of preemptive strikes that is being proposed, but one of prevention, which is beyond the reach of the legal right of self-defense; 2) that any policy of unilateral preventive strikes is contrary to the maintenance of order in the present international system. In order to support this claims, in the first part of the thesis, the philosophical and political justification of the right to self-defense is examined, the recognition of such a right in actual normative systems emerging as a rational condition of their legitimacy, and an ideal concept of self-defense is advanced that results from the application to the claim to individual self-preservation of the requirements deriving from this justification: an actual aggression and the concrete necessity of the means employed in the defense; in the second part of the thesis, the regulation of self-defense by international law, specially through the Charter of the United Nations, is explained, in the terms of which the legality of the Bush Doctrine\'s claim of preemptive self-defense is verified. Of this claim it is concluded that, at least in the way it is described by the National Security Strategy, it cannot be regarded as self-defense, because it does away with the necessary element of an actual aggression, either in progress or imminent, being in fact a variety of preventive use of force, the recourse to which should be restricted to an organ representing the community, in this case the Security Council of the United Nations, lest the prohibition of the recourse to force in international relations is relaxed. That notwithstanding, it is advanced that, as long as one understands preemption only as an early response to an imminent attack, it can be reconciled with the authorization to use force in self-defense, if subjected to some form of ex post control.

The use of Private Military Companies (PMCs) has become an increasingly common feature of contemporary armed conflict. Because of their autonomous contractual status, PMCs have presented governments with problems of accountability on several levels, including violations of international human rights and humanitarian law (IHL) standards. This thesis argues that PMCs should be considered to be non-state actors (NSAs), subject to international law from both an International Relations Theory and a Legal Theory perspective. This conclusion is linked to the issue of whether individual PMC employees can be treated as legitimate combatants according to IHL. State practice has not led to a clear understanding of the definition of combatant, a problem which has been compounded by a lack of government policy on the use of PMCs. Using Canadian experience as a case study, the thesis concludes that IHL suggests two options for regularizing the status of PMCs which would both strengthen accountability and uphold the rule of law.

The use of Private Military Companies (PMCs) has become an increasingly common feature of contemporary armed conflict. Because of their autonomous contractual status, PMCs have presented governments with problems of accountability on several levels, including violations of international human rights and humanitarian law (IHL) standards. This thesis argues that PMCs should be considered to be non-state actors (NSAs), subject to international law from both an International Relations Theory and a Legal Theory perspective. This conclusion is linked to the issue of whether individual PMC employees can be treated as legitimate combatants according to IHL. State practice has not led to a clear understanding of the definition of combatant, a problem which has been compounded by a lack of government policy on the use of PMCs. Using Canadian experience as a case study, the thesis concludes that IHL suggests two options for regularizing the status of PMCs which would both strengthen accountability and uphold the rule of law.

武裝衝突法已成為各交戰國(方)爭取國際支持之重要手段，軍隊執行作戰任務，必須遵守武裝衝突法及國際法的相關規範，始可確保作戰行動的合法性及正當性。陸戰法規是一系列戰爭法規則和慣例的重要歷史淵源，為武裝衝突法之主體。隨著以規範交戰規則為主的海牙法體系與規範人道保護規則為主的日內瓦法體系逐漸整合，陸戰法規除規範作戰使用武器的規則外，其他有關交戰者、敵對行為及軍事佔領等規則均納入1949年日內瓦公約及1977年的兩項附加議定書。 觀察國際社會對陸戰法規實踐的面向，除可從戰史例證中得到驗證外，尚可從童兵、地雷、武裝衝突遺留爆炸物處理及文化資產保護等議題，得以進一步瞭解陸戰法規實踐的全貌。要禁止利用童兵的行為，除了國家行為者應負履約義務外，對非國家行為者侵犯兒童權利行為的制止是當務之急，國際刑事法院應扮演更積極的角色。2003年波灣戰爭中，《禁雷公約》雖未能阻止伊拉克使用人員殺傷雷，但已顯示該公約對非締約國產生的隱性約束力，禁用人員殺傷雷的規範雖未完全實現，但已為多數國家認同，未來可能成為一項習慣國際法。《戰爭遺留爆炸物議定書》雖可為解決武裝衝突結束後平民所面臨的主要威脅提供一項法律制度，但因條約內容強制性不足，成效尚難顯現。目前對文化資深保護的重點在於免遭武裝衝突毀損為主要議題，因武裝衝突而流落異域之文化資產回復或返還，可能成為未來發展之主要議題。 / The Law of Armed Conflict has become one of the important means to win the international support for all belligerent. The army must comply with the Law of Armed Conflict in combat, in order to ensure the legitimacy of military operation. The law of war on land has its historical origins for regulations and customary of the Law of War, and also has codified as the main body of the Law of Armed Conflict. The Law of The Hague and the Law of Geneva have been gradually integrated. All these regulations of the law of war on land about combatant, hostilities and military occupation were included in the “Geneva Conventions of 1949” and two “Additional Protocols of 1977”, except the regulations of the use of the weapon. Observing the different aspects of the law of war on land in the international community from the cases above, furthermore, the issues of “Child Soldier”, “Landmine”, “Explosive Remnants of Armed Conflict” and “Protection of Cultural Property in the Event of Armed Conflict”, can help to understand the full view of the practice of the law of war on land. For stopping the use of child soldiers, the obligation of convention should be executed by the state actors, the task of top priority should prevent the infringements of the right of child of the non-state actors, and the International Criminal Court should play a more positive role. In the “Gulf War 2003”, the rule, “Convention on Prohibition of Use, Stockpiling, Production and Transfer of Anti-personnel Landmines and on Their Destruction”, although it has not prevent Iraq from the use of anti-personnel landmine, had showed the indistinct effect of the convention to the powers in the conflict that may not be parties to the convention. Although the rule of prohibition of use of anti-personnel mines has not completely realized, it had already been approved by most states, and may become one of the international customary in the future. The “Protocol on Explosive Remnants of War annexed to the “Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention)” provided a legal protection for the civilian after the armed conflict. Its effect was still too difficult to manifest, because the force of provisions of the protocol were insufficient. The protection of cultural property in the event of armed conflict focuses on exempting from the damage of cultural property at present, but the issue like how to recover the cultural properties which were pillaged in armed conflicts, would become the main theme in the foreseeable future.

Univ., Diss.--Tübingen, 2006. / Literaturverz. S. [413] - 453.

How do states win wars against other states? We have three explanations. By selection, states enter more winnable wars. By warfighting, states use negative inducements so enemies fear fighting. By peacemaking, states use positive inducements so enemies hope for settling. This dissertation investigates peacemaking. It theorizes that states optimally produce influence only if they efficiently combine warfighting negative and peacemaking positive inducements. It hypothesizes that using some peacemaking on average improves outcomes verses using none. The dissertation tests this with a statistical analysis that measures peacemaking as law of war compliance and estimates effects on all inter-state outcomes from 1899 to 1991. It finds that compliance likely on average improves immediate military and final political relative outcomes. This dissertation also tests peacemaking in four case studies from the Franco-Prussian War of 1870-1871 and World War II. These case studies find that state peacemaking to enemy states, allies, leaders, troops, and civilians probably on average improves absolute war outcomes. These complementary and independent empirical results provide unprecedented support for the peacemaking explanation of how states improve inter-state war outcomes. To succeed, states should be prudent by selection, fierce in warfighting, and principled for peacemaking. / Government

The use of Private Military Companies (PMCs) has become an increasingly common feature of contemporary armed conflict. Because of their autonomous contractual status, PMCs have presented governments with problems of accountability on several levels, including violations of international human rights and humanitarian law (IHL) standards. This thesis argues that PMCs should be considered to be non-state actors (NSAs), subject to international law from both an International Relations Theory and a Legal Theory perspective. This conclusion is linked to the issue of whether individual PMC employees can be treated as legitimate combatants according to IHL. State practice has not led to a clear understanding of the definition of combatant, a problem which has been compounded by a lack of government policy on the use of PMCs. Using Canadian experience as a case study, the thesis concludes that IHL suggests two options for regularizing the status of PMCs which would both strengthen accountability and uphold the rule of law.