CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

1907 had themselves been something of a sea-change for, as the editor of the
Translation of the Official Texts of the Conference of 1899 put it, they were the ‘first
truly international assemblies meeting in time of peace for the purpose of preserving
peace, not concluding a war then in progress.’ 5 However, in the light of the First World
War, the law resulting from these conferences – the culmination of the pacifist-
internationalist movement of the 19 th Century – began to be seen as the wrong sort of
law; it was a law that codified the rules of war, regulating it – and thus, in a way,
condoning it – rather than condemning and preventing its occurrence. The development
that was to follow, building through the Covenant of the League of Nations and the
Kellogg-Briand Pact to culminate in the Charter of the United Nations – the eventual
foundation for the legalist paradigm as it is found today – sought not merely to regulate
war but to eliminate it from field of international policy.
A good example of the shift in perspective before and after the First World War is
offered in the works of the influential writer on international law, Lassa Oppenheim. In
1911 Oppenheim was arguing that the nature of states was such that their relations with
one another needed no enforcement mechanism. He argued that, unlike individuals
within a domestic legal system, there were no offenders or individuals ‘who will yield
only to compulsion,’ for ‘(p)eaceable adjustment of state disputes is in the interest of
states themselves.’ 6 Such a view was firmly in the optimistic liberal tradition that EH
Carr was to come to dismiss as ‘Utopian’ (see p6). But in 1919, Oppenheim’s view had
shifted radically. In 1919, writing to Theodore Marburg, an organiser of the League of
Nations Movement in the United States, Oppenheim wrote:
…… before the War I was of opinion like you that, if we only got the
International Court of Justice established, no enforcement of its verdicts would
be necessary …
However, the war has changed everything, …in case a party against which a
verdict of the Court has been given disobeyed the verdict and resorted to
hostilities, there is no doubt that the League would have to take the side of the
attacked party. 7
Fundamental to the ‘peace through law’ approach and the legalist paradigm in which it
culminates, is what is often termed the ‘domestic law analogy’. This attempts to equate
international law to domestic law in one of two forms. In its extreme and rarer form, but
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