Splendid Isolation: International Humanitarian Law, Legal Theory and the International Legal Order

Extract

International humanitarian law (IHL), from both a historical and contemporary perspective, holds a unique position within the international legal order. This distinctiveness is central to the main theme of this article: to assess the role of IHL, or jus in bello, in contemporary theoretical debates on the international legal order. IHL's presence in the legal theory literature is sparse. A partial explanation for this is to be found in a number of its unique characteristics that contribute to IHL's absence from this debate. These include its exceptional status within war and law, its historical development, its early codification and, most importantly for this analysis, its treatment within international legal theory. In exploring these characteristics, this article seeks to further account for the near absence of IHL within current legal theory and to suggest that a more active engagement with IHL has the potential to enrich the debates on the future of the international legal order.