Chapter 1 looks at the historical development of IHL, from its origins in Europe in the 1850s, and the historical events that have shaped the law through the last century and a half. It describes the effect of the Battle of Solferino in 1861 on Henri Dunant, leading to the founding of the International Committee of the Red Cross in Geneva, as well as the parallel development of the Lieber Code arising out of the American Civil War. The core treaties and other instruments forming the basis of modern IHL are outlined, from the 1864 Geneva Convention to the more recent development of international criminal law and its contribution to the law of armed conflict

Chapter 21 addresses military commissions. Their history and evolution are described. During the Mexican-American War, they were a modest military law stopgap in foreign countries. The US Civil War and the Lieber Code (Chapter 2) made them what they are today: rough-edged military field tribunals to address the war crimes of foreign combatants. Their value was proved following World War II, when all the Allied states employed them. Guantánamo’s post-9/11 perverted version of military commissions, in the shadow of CIA black sites and “enhanced interrogations,” may have ended their utility: initiated by civilian political appointees with the aim of denying prisoners not just POW status but basic human rights and legal protections, Guantánamo’s military commissions have been an abject failure, brought to heel by civilian courts’ legal resistance and forced recognition of civilian legal oversight. Guantánamo’s record of eight convictions in eighteen years, three of which have been vacated, is proof of their legal ineffectiveness and moral hollowness.

This chapter continues the exploration of the gap between legal theories on the conduct of war and enemy aliens on the one hand and the practice of states at war on the other. It focuses first of all on the Franco-Prussian War of 1870–1871 that anticipated the mobilization of the nation-in-arms and examines, in particular, the expulsion of "Germans" from Paris and Strasbourg in the summer of 1870, the consequences of the expulsion and the lively debate among international lawyers it sparked. The chapter continues with an analysis of the Russo-Ottoman War of 1877–1878, concentrating on the emergence of a humanitarian discourse in order to legitimize intervention. Then it moves east to take into consideration the treatment of enemy aliens and the accompanying discourses on civilization in the Sino-Japanese War (1894–1895) and in the Russo-Japanese War of 1904–1905. This chapter also delves into the novelties that occurred in the field of international law and international relations with the signing of the Geneva Convention, the foundation of the Institute of International Law in Brussels, the two Conferences at The Hague in 1899 and 1907. The final part of the chapter concentrates on the Balkan conflicts of 1912–1913 and the atrocities against civilians.

This chapter establishes the theoretical orientation of the study. Traditional IR approaches to regime development – which have typically drawn on a single research tradition – are mapped, and then contrasted with the pluralist approach taken in Negotiating Civil War, highlighting the rationale, principal benefits and challenges of drawing variously on Realist, Rationalist, Liberal and Constructivist insights. The hypotheses to be tested in each of the subsequent case studies chapters are then set out and their underlying explanatory factors identified. The chapter then sets out the potential interaction amongst these hypothesised factors in a ‘straw person’ diagram. The chapter concludes with a brief discussion of the key methodological considerations informing the study.

This chapter gives an historical account of the legal conceptions of military necessity , with particular weight on the apperances of necessity in the Lieber Code and the St.Petersburg Declaration.