Freedom to War

AuthorCraig Forcese
Chapter 22
Freedom to War
The obedience which is paid to law mu be a willing obedience, and when a
ate has taken up arms unjuly it is useless to expe it to aciesce in the
imposition of penalties for its a. International law has conseently no
alternative but to accept war, independently of the juice of its origin.
williaM hall (1895)1
I   after the Caroline, war was simply another
instrument of statecraft, not an event to be reconciled (how-
ever imperfectly) with the niceties of just cause. The intellectual
spirit of the era favoured laissez-faire “positivism” the notion that
law came only from human conduct and not from a natural, univer-
sal code. International law stemmed from treaties and the customary
practices of states, nothing more. Once a secondary source of princi-
ple for earlier jurists, this state-derived “law of nations” now almost
completely eclipsed the natural law legacy of the ancient world.2
Applied to war, positivist international law did codify some
expectations about the conduct of hostilities, such as the treatment
of wounded and prisoners of war.3 These were what are today called
the jus in bello rules of international law: the standards governing
the actual conduct of war, once begun. But in the long century after
the Caroline, international law had no role in evaluating the choice to
embark on war in the f‌irst place; what today lawyers call jus ad bel-
lum. States enjoyed an inherent competence de guerre: a freedom to
war. International lawyers from the mid-nineteenth century to the
First World War conf‌ined themselves to debates about the precise

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