The IHL / LOAC Divide Does Not Exist: On the Myth of the Two Cultures Problem in a Postcolonial World

Yesterday, Brian Cox, a frequent critic of this blog, posted a long comment on Twitter (now X), in the context of a discussion he had with Opinio Juris’ own Kevin Jon Heller. The post was part of a longer personal exchange, the subject of which I will not address here. What is scholarly interesting about Cox’s post is that he made reference to what David Luban famously called The Two Cultures Problem at the heart of international humanitarian law, back in 2012. In his post, Cox summarised his thesis as follows:

“If we were to divide the profession of int’l law (again, focusing on LOAC) into two general camps, we could describe an humanitarian & a military community of practice. Neither community is homogenous, and they’re not completely separate. But I’ve encountered enough commentary making this general distinction between the two that I will acknowledge it here – and I will say that I generally concur with the construct”.

Thus, Cox argues, the so-called “humanitarian community of practice” is simply more popular and “shapes public opinion” and media commentary despite having “no actual authority to actually practice LOAC at the ‘pointy end’”. This is because, he hints, humanitarianism sells more than militarism. The humanitarians, Cox argues, “perceive & articulate that a primary purpose of LOAC (usually termed as IHL for them) is to protect victims of armed conflict (broadly defined)” which “fosters an ideology that encourages an effects-based approach to interpreting & applying LOAC”. Thus, he goes on “if a church gets damaged in Gaza (…) & churches are supposed to be ‘protected’, then it seems likely from this perspective that a LOAC violation was committed”.

On the contrary, he says, the “military community” considers that legal violations “reflect consensus among states for conduct that is ‘militarily unnecessary per se’”, meaning that “it’s not an issue with the law if an armed conflict results in horrendous suffering”.

Given this foundational disagreement, Cox concludes that the humanitarians would be happy to developed an “unrealistically restrictive interpretation of LOAC if that would serve the ultimate goal of better protecting victims of conflict”.

In this post I want to push back against this framing. While a popular one, I believe it ultimately essentialises both supposed communities to disguise what is instead the result of a political and historical process between the Global North and Global South that changed the dynamics of postcolonial war.

Let me explain.

The notion that what is legal in war is whatever is militarily necessary traces its historical origins to the theoretical and philosophical revolution introduced by the ideas of Carl von Clausewitz in the 19^th century. “War”, Clausewitz said, “is thus an act of force to compel our enemies to do our will”. And the only way to achieve this was to eliminate the enemy’s forces at any cost: “direct annihilation of the enemy’s forces must always be the dominant consideration”.

Before Clausewitz, armies marched on fields seeking to manoeuvre their way into the enemy’s capital, take control over the King and sit back and relax, victory at hand. Nationalism had changed this. Defeated nations no longer simply followed whoever sat in a specific chair and wore a specific piece of metal over their heads. Defeated nations resorted to guerrilla warfare and fought to the last man standing. Thus, for Clausewitz, it was the “relative strength of unused reserves still available” that determined who won a war – whoever can keep replenishing their forces would win; whoever ran out of combatants would lose.

This mentality produced an understanding of war where the only valuable objective was to defeat the enemy. “If we read history with an open mind”, Clausewitz wrote in his classic On War, “we cannot fail to conclude that, among all the military virtues, the energetic conduct of war has always contributed most to glory and success”.

The history of the West’s approach to war has very much depended on how each scholar, military leader or politician read and understood this Clausewitzian model. Thus, in the United States, Clausewitz’s fellow Prussian, Francis Lieber, codified most of these ideas into his famous Code – almost to the letter. Famously, Article 29 of the Lieber Code states that “the more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief”. Lieber adapted Clausewitz’s maxim about the “energetic conduct of war” and switched “glory and success” for “humanity”, but the underlying idea remains fundamentally Clausewitzian: the most important thing in war is to win the war by defeating the enemy through any means necessary. Thus, the Code continues:

“Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war”.

In other words, absent a specific prohibition, anything that is indispensable to destroying one’s enemy is legal. The only kind of harm that is illegal is that which is wanton, expressed by a desire for personal revenge or the sheer pleasure of seeing someone punished. Anything – literally anything else – is legal. It is this kind of thinking therefore that led to, for example, Sherman’s infamous March to the Sea. A military operation filled with atrocities against the civilian population of the US South, branded as legal under the banner of the necessity of defeating the Confederates.

This is, I would counter, what Cox is referring to as the “military community of practice”. While he may want to argue that its underlying understanding of how war works is, as he puts it, the result of praxis and first-hand experience, history would say otherwise. It’s instead an ideological choice – a way of understanding war going back two centuries to the work of the Prussian military thinker who influenced Western and particularly US notions of war and strategy. The reason why he and his community favour whatever is military necessary therefore is not some higher knowledge of the intricacies of war. It’s that they have been trained in a specific ideological conception of war. The ideology is not the result of praxis, rather the praxis is the result of ideology.

So instead of essentialising these supposed two cultures or two communities of practice, I would counter that understanding the current state of international humanitarian law (or the law of armed conflict as Cox and his community prefer to call it) would require us to trace the genealogy of this Clausewitzian approach to war. After all, the United States was not the only place where Clausewitz’s ideas took hold and were reinterpreted with the local flare.

Helmuth von Moltke, Chief of the Prussian General Staff – and Bismarck’s chosen man to lead the wars of German unification – was also a student of Clausewitz. Moltke read Clausewitz as advocating for unrestrainable war. In a famous letter sent to Johan Caspar Bluntschli, Moltke objected to his attempts to “restrain” war through a Lieber-like Code.

“Perpetual peace is a dream”, Moltke famously said, “and not even a beautiful dream. War is an element of the divine order of the world. In it are developed the noblest virtues of man: courage and self-denial, fidelity to duty and the spirit of sacrifice; soldiers give their lives. Without war, the world would stagnate and lose itself in materialism”.

So, Moltke argued, war had to be totally unrestricted. One must attack, he said, “all the resources of the enemy government, his finances, his railroads, his supplies, and even his prestige”. In very Clausewitzian fashion, Moltke concluded: “the greatest kindness in war, is to bring it to a speedy conclusion”. Sharp wars are brief.

Thus, where Clausewitz led to the Lieber Code’s version of military necessity and the March to the Sea in the United States, in Europe, particularly in Germany, it led to the emergence of the principle of “Kriegsraison”: “belligerents may do whatever they feel is necessary to prevail in an armed conflict, as military necessity overrules all law”, as Catherine Connolly defines it. The difference between both principles is minimal, but significant. Lieberian military necessity accepts that anything militarily necessary for the defeat of the enemy is legal provided there is no express prohibition in the law, whereas Moltkean Kriegsraison accepts that anything militarily necessary for the defeat of the enemy is legal regardless of any express prohibition in the law.

It is this approach to war that directly led to the gruesomeness of World War I. A traumatised Europe began to slowly drift apart from Clausewitz’s “energetic” conduct of war. It was not uncommon for British military thinkers to complain of “bloodthirsty Prussianism” as the culprit behind the Trench Wars’ extremely high death toll. As Michael Howard argues in his preface to On War, Clausewitz “had proclaimed the sovereign virtues of the will to conquer, the unique value of the offensive carried out with unlimited violence by a nation in arms and the power of military action to override everything else” and it was because of this “distorted notion of the offensive” that millions of young men were sent to their deaths in the fields of Europe. Particularly in trench warfare, where the defensive side has the advantage.

Thus, World War I marked a critical point in the West’s understanding of war, but also, in delegitimising sharp war principles from within, they gave way for other competing, non-Clausewitzian understandings of war to take the stage.

These other approaches were not new. I have shown in an article for the Yearbook of International Humanitarian Law how, in 1879, faced with a Chilean sharp war, Peruvian historians like Paz Soldán openly complained how the high civilian casualty rates and inhumanity of Chilean attacks on Peruvian cities was due to its officers’ belief in “the absurd and brutal principle that ‘a war is all the more humanitarian when it is crueller’”. Similarly, Argentinean scholar Onésimo Leguizamón also expressed his “surprise” at Chilean parliamentarians arguing the Clausewitzian and Lieberian maxim that a “killing war” is the most human one. “As if modern war was”, Leguizamón complained, “that necessary calamity of other times, independent of the will of nations”.

Similarly, at the same time as Lieber and Moltke, Dunant’s humanitarianism was already a competing framework of war. The 1864 Geneva Convention never held the same kind of pedigree among 19^th century states as the Brussels Declaration or the St. Petersburg Declaration, but it nonetheless planted seeds that would blossom after the crisis of 1914-19.

Seeing the devastation caused in Europe, all over the non-Western world states began to run away from or reinterpret Clausewitz. In Eastern Europe, Lenin re-read Clausewitz maxim that war is politics through other means to make a class critique of war itself. “All wars” Lenin said in his essay War and Revolution, “are inseparable from the political system that engender them”, such as capitalism and imperialism – war therefore is the continuation of not just any politics, but the politics of a given ruling class through other means.  

In Latin America, a region already disheartened by US imperialism, saw in European war evidence of an uncivilised militarism. As Brazilian scholar Rui Barbosa argued in 1916, Europe suffered from a “cult of war” that thinks that “the principle of necessity in war supersedes all other human and divine laws”. This, he said, implicitly chastising Moltke, is nothing but regression – regression justified in the language of war’s supposed “civilising virtues”.

In the Afro-descendant Diaspora, W.E.B. Du Bois’ Black Internationalism made a direct connection between World War I and the “desperate flames that emerged from colonial aggrandizement after the Berlin Conference”. War had to be eliminated from the world and “we shall not drive war from this world”, he argued, “until we treat them [meaning racialised people] as free and equal citizen in a world-democracy of all races and nations”.

Little by little all, of these seeds grew, through the Geneva Conventions and eventually through decolonisation and eventually to the 1979 Additional Protocols, creating international humanitarian law from the ashes of what Cox calls the Law of Armed Conflict; from the ashes of a delegitimised Clausewitzian notion of military necessity.

As Jessica Whyte has convincingly shown, during the negotiation of the Additional Protocols in the 1970s, it was anticolonial representatives from former national liberation movements who “drew on the principles of anti-imperialism and self-determination to articulate a contrasting vision of justice that challenged the colonial configuration of international law and the privileging of Christian civilization”.

Thus, she goes on, “Far from believing that all was fair in a just war” (i.e. far from ascribing to Clausewitz’ military necessity), “anticolonial delegates also fought for stronger legal protections for civilian populations. Thus, for instance, “It was the Iraqi delegate who argued most forcefully that all ‘civilian areas should be regarded as prohibited targets’”. On the contrary, it was the US that “lobbied successfully for the codification of what it depicted as the customary law standard of ‘proportionality’, despite the protestations of the North Vietnamese delegation, which argued that proportionality ‘had been used to justify the American air attacks against them’”.

As Whyte describes it, the 1970s negotiations in Geneva were certainly “used to legitimate anticolonial violence, but those who affirmed the justice of such violence aimed to extend the realm of international law, not to exempt anticolonial fighters from legal restraints”. This is why Additional Protocol I regulates wars of national liberation as international armed conflicts. This is why the principle of distinction was codified in law. The way the world approaches war fundamentally changed between 1919 and 1979. Some, like Cox and his “military practice community”, simply have not caught up to this change.

My claim is therefore that instead of two different communities, one with military experience and one without military experience but good if unrealistic intentions, what Cox is describing is the last surviving vestiges of Clausewitzian war in a postcolonial world, regardless of whether military minded or not. Instead of a military / humanitarian binary, therefore, what exists today is a small group of still surviving Clausewitzians – particularly in the US, Israel and select NATO members – within a broader non-Clausewitzian global postcolonial majority.

In short, as I argue in my PhD dissertation, the history of the regulation of war is the history of how the “laws of war” became “international humanitarian law”. As I conclude there:

“The laws of war, as the language in which the old structure was premised, thus became the vehicle through which the new stakeholders in the Global South, the ICRC and the Communist world, pursued their agendas of change, and facilitated the emergence of a new paradigm through which to understand war and the laws of war”.

Some communities just haven’t figured this out yet, as Cox’s post shows.