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It is sometimes said that cruel yet short wars are better for humanity than restrained yet lengthy ones. The idea finds sympathy among Francis Lieber and his Prussian contemporaries, as well as some modern writers who back selective non-compliance with international humanitarian law (IHL) on act-utilitarian grounds. This article refutes three underlying claims and reaffirms that IHL progressively narrows room for crude interest-balancing by its duty-bearers. First, it is claimed that toughening wars quickens them, whereas moderating wars prolongs them. This empirical claim overlooks how actions of the party resorting to brutality – “brutaliser” for short – interact with the intention of its adversary. Although the brutaliser clearly controls the amount of violence it chooses to inflict on its opponent, it does not control the opponent’s will to resist and, consequently, the length of the war it fights. History abounds with instances where adding cruelty stiffens the enemy’s resolve rather than accelerates surrender. Second, it is claimed that ruthless but swift wars lessen net inhumanity. On this act-utilitarian view, it is normatively superior to hasten wars through barbarity than to lengthen them through moderation. It is therefore the brutaliser’s responsibility to toughen fighting and the brutalised party’s responsibility to refrain from resisting the brutaliser. Problematically, the brutaliser usurps authority by imposing its own utilitarian considerations upon the brutalised party. Moreover, the brutaliser blames its disobliging adversary for the extra bloodshed to which it resorts in the name of maximum utility. Third, it is claimed that IHL does or should permit nonconformity when nonconformity stands reasonable chances of increasing net humanity. This position is inconsistent with IHL’s functions. IHL does aim to reduce net wartime harm. It would be a mistake to assume, however, that utilitarian ends necessarily justify, let alone require, utilitarian means. When IHL enacts unqualified rules, it predetermines their conformity or nonconformity through processes that are distinctly not act-utilitarian. Nowhere in these processes do lesser-evil justifications naturally belong.

Seventy-five years after a US tribunal in Nuremberg acquitted Lothar Rendulic of devastating and forcibly evacuating Northern Norway, the Rendulic Rule stands firmly in international law. This concluding chapter summarises the anthology’s main historical, legal, and military-ethical findings. It provides an overview of the historical developments that culminated in the scorched earth tactics applied by the retreating German 20th Mountain Army under Rendulic’s command. It then discusses the preparations and legal peculiarities of the trial, as well as reactions to the judgment. The chapter shows that the case against Rendulic is arguably the wrong foundation for the no second-guessing rule, since he did not consider the complete devastation of Northern Norway and the forcible evacuation of its entire civilian population militarily necessary. Although the Rendulic Rule rests on meagre legal forensics, it has acquired legal significance in primary rules of conduct in the shape of the reasonable commander test in international humanitarian law and the mistake of fact defence in international criminal law. Numerous domestic, regional, and international courts and tribunals have applied the rule that nowadays has a strong legal standing. Yet, despite rapidly evolving military and information technology, reasonableness, empathy, and (institutional) bias in combat remain challenging issues

This book marks the 75th anniversary of the 1948 Hostage Case in which a US military tribunal in Nuremberg acquitted General Lothar Rendulic of devastating Northern Norway on account of his honest factual error. The volume critically reappraises the law and facts underlying his trial, the no second-guessing rule in customary international humanitarian law (IHL) that is named after the general himself, and the assessment of modern battlefield decisions.

Using recently discovered documents, this volume casts major doubts on Rendulic’s claim that he considered the region’s total devastation and the forcible evacuation of all of its inhabitants imperatively demanded by military necessity at the time. This book’s analysis of archival and court records reveals how the tribunal failed to examine relevant facts or explain the Rendulic Rule’s legal origin. This anthology shows that, despite the Hostage Case’s ambiguity and occasional suggestions to the contrary, objective reasonableness forms part of the reasonable commander test under IHL and the mistake of fact defence under international criminal law (ICL) to which the rule has given rise. This collection also identifies modern warfare’s characteristics—human judgment, de-empathetic battlespace, and institutional bias—that may make it problematic to deem some errors both honest and reasonable. The Rendulic Rule embodies an otherwise firmly established admonition against judging contentious battlefield decisions with hindsight. Nevertheless, it was born of a factually ill-suited case and continues to raise significant legal as well as ethical challenges today.

The most comprehensive study of the Rendulic Rule ever to appear in English, this multi-disciplinary anthology will appeal to researchers and practitioners of IHL and ICL, as well as military historians and military ethicists and offers ground-breaking new research.

Seventy-five years have passed since Hostage, a post-World War II case in which Lothar Rendulic was acquitted of Northern Norway’s devastation and forcible evacuation on account of his faulty yet honest judgment. This introductory chapter surveys the current state of our knowledge about honest errors in modern combat decision-making by synthesising the findings of the anthology’s contributing authors. First, contemporaneous sources suggest that Rendulic did not consider it militarily necessary to devastate the region in its entirety or to evacuate all of its residents by force. Second, even though Rendulic’s acquittal was factually contentious, it was arguably on firmer legal ground. His case has led to the emergence of an eponymous rule against second-guessing difficult combat decisions, the reasonable commander test in international humanitarian law and the mistake of fact defence in international criminal law. Third, assessing the reasonableness of battlefield errors remains challenging because of the limitations of modern information technology, the diminishing room for empathy in the soldierly profession, and the salience of institutional bias.

What does it mean to say that international humanitarian law (IHL) strikes a realistic and meaningful balance between military necessity and humanity, and that the law therefore 'accounts for' military necessity? To what consequences does the law 'accounting for' military necessity give rise? Through real-life examples and careful analysis, this book challenges received wisdom on the subject by devising a new theory that not only reaffirms Kriegsräson's fallacy but also explains why IHL has no reason to restrict or prohibit militarily unnecessary conduct on that ground alone. Additionally, the theory hypothesises greater normative significance for humanitarian and chivalrous imperatives when they conflict with IHL rules. By combining international law, jurisprudence, military history, strategic studies, and moral philosophy, this book reveals how rational fighting relates to ethical fighting, how IHL incorporates contrasting values that shape its rules, and how law and theory adapt themselves to war's evolutions.

This chapter asserts that States placing themselves under the umbrella of nuclear-weapon States may not join the 2017 Treaty on the Prohibition of Nuclear Weapons without being in breach with one of its core provisions. The author considers four questions: How did the Treaty come to include a prohibition on threatened use? What does the prohibition mean for threatened self-defensive use of nuclear weapons under jus ad bellum? Does the prohibition cover nuclear deterrence? Does threatening to use nuclear weapons include threatening to have these weapons used on one’s behalf by its nuclear-armed ally? Whilst promoting universal adherence clearly coheres with the Treaty’s object and purpose, it is doubtful whether such considerations warrant a narrow construal in the hope that umbrella States would accede to the treaty without having to abandon their dependence onextended nuclear deterrence.

With the ad hoc tribunals completing their mandates and the International Criminal Court under significant pressure, today's international criminal jurisdictions are at a critical juncture. Their legitimacy cannot be taken for granted. This multidisciplinary volume investigates key issues pertaining to legitimacy: criminal accountability, normative development, truth-discovery, complementarity, regionalism, and judicial cooperation. The volume sheds new light on previously unexplored areas, including the significance of redacted judgements, prosecutors' opening statements, rehabilitative processes of international convicts, victim expectations, court financing, and NGO activism. The book's original contributions will appeal to researchers, practitioners, advocates, and students of international criminal justice, accountability for war crimes and the rule of law.

A period of sustained efforts to codify and develop the rules of war, which began in the mid-nineteenth century, peaked with the 1899 and 1907 Hague Peace Conferences. Participating delegates adopted numerous binding instruments covering various aspects of peaceful dispute settlement and war-fighting. This paper places the two Hague Peace Conferences within the context of humanity’s attempts to regulate warfare. It identifies the main factors that made them successful at the time; shows how these factors have changed over time; and assesses the conferences’ contemporary relevance in view of such changes.