The Terminological Architecture of the Jus in Bello: Law, Language and Warfare
The lexicon governing the conduct of hostilities is not a static collection of synonyms but a dynamic field of ideological contestation. For centuries, the body of international law that regulates the behaviour of belligerents and protects victims of conflict has been identified by three primary descriptors: the law of war; the law of armed conflict; and international humanitarian law. While contemporary discourse often treats these terms as interchangeable, a rigorous examination of their historical origins, the mechanisms of their introduction, and their reception within State practice reveals deep-seated tensions regarding the nature and purpose of the law.
The transition from the classical “law of war” to the modern “international humanitarian law” represents more than a linguistic evolution; it signifies a profound shift in the conceptualization of warfare, moving from a State-centric model defined by sovereign rights to a person-centric model defined by humanitarian imperatives.
Early Evolutions
In our book, Law, Language and Warfare, we chart this history and evolution and interrogate the practice of the changing terminology of the law of armed conflict. Why has the terminology evolved and how, what impact has that had, and how has language been used to include and exclude people within the law?
The classical foundations of modern warfare regulation are of course well known. Starting with seminal works from Vitoria, Gentili, and Grotius, the legal framework was known exclusively as the law of war (jus belli). During this era, “war” was a formal legal state, the commencement of which was signalled by a declaration. The terminology of “war” was thus inextricably linked to the Westphalian system of statehood, where the use of force was a legitimate tool of State policy, subject only to the rules of honour and reciprocity among equals.
The 18th century scholars such as Vattel continued this tradition, viewing the law of war as a set of rules emerging from State practice to moderate the inevitable brutalities of conflict. The ensuing formulation of the extant law was strictly bound to the terminology of “war” as a sovereign act.
Revelations from the Lexicon
The early treaty law of armed conflict reflects the centrality of the idea of “war.” The Lieber Code, 1864 Geneva Convention, and the 1899 and 1907 Hague Conventions all make repeated reference to the term “the law of war.” However, by the end of the Second World War in 1945, it was clear that the legal sophistry that had taken place in the inter-war years needed to be addressed. Attempts to prohibit warfare by the League of Nations was met with linguistic manoeuvring by States like Japan and Italy, who called their invasions of China and Ethiopia “incidents” or something other than war, so as to avoid League sanctions and rules of neutrality.
In response to these linguistic and legal evasions, the International Committee of the Red Cross (ICRC) advocated for a shift toward a factual rather than a formal trigger for the law. This culminated in the adoption of the four Geneva Conventions of 1949, which replaced “war” with the broader term “armed conflict.” The move to “armed conflict” was a deliberate attempt by civil society, specifically the ICRC, to expand the protective reach of the law, and to remove the need for the formalistic step of declaration of war, in hopes that the law would apply based on objective rather than procedural grounds.
By the 1960s, arguably the most transformative change in the language came with the introduction of the term “international humanitarian law.” Unlike the previous shifts, which could be considered technical or clarifying, the introduction of IHL was a concerted effort (again by the ICRC) to “humanize” the laws of war.
By adopting “international humanitarian law,” the ICRC sought to align the body of law with the broader human rights movement and the global aspiration for peace. This transition was cemented at the 1968 UN Conference on Human Rights in Tehran, which linked human rights with the regulation of armed conflict. In this way, the law of armed conflict was essentially rebranded, prioritizing humanitarian considerations over military necessity, making the conduct of warfare subject to the interpretations of humanitarian and human rights organizations rather than military lawyers alone.
Further Findings
In Law, Language and Warfare, we explore the manifold ways the changes in terminology did (and did not) shape State behaviour, how the language of the law of armed conflict acted to include and exclude addressees, subvert (or at least attempt to subvert) the primacy of the military, and, in some cases, reaffirm old ways of thinking and acting.
We chose a number of different techniques to engage in this examination, drawing not just on international law scholarship and legal theory (in Amanda Alexander and Tamer Morris’ chapters), but also from corpus linguistics (in Annabelle Lukin and Alexandra García Marrugo’s chapter), international relations (in Matt Killingsworth’s chapter), and critical legal theory (from Frédéric Mégret). In particular, we wanted to interrogate the standard history just recounted, that the move from “law of war” to “law of armed conflict” to “international humanitarian law” as some kind of natural, irrevocable evolution.
For this, we chose a comparatively simple pilot study: does State practice bear out the traditional narrative that the “law of armed conflict” was the preferred term from 1949, to be supplanted in 1977 with “international humanitarian law?”
In our first study, we employed corpus linguistics to analyse the language used in UN Security Council and General Assembly resolutions. A focused study on resolutions regarding the Israel-Palestine conflict—an umbrella conflict that has persisted through all three terminological eras—provides a unique lens into the adoption of legal nomenclature.
The linguistic data revealed a stark contrast between the “orthodox” narrative of linear progression and the actual patterns of State usage. In a corpus of 741 UN resolutions (75 Security Council and 666 General Assembly), the term “law of war” was entirely absent, which might suggest that the attempt to dethrone “law of war” as a term was successfully achieved. However, the term “law of armed conflict” was likewise nowhere to be found in UN resolutions post 1949.
Even more striking, the adoption of “international humanitarian law” was far from immediate. In General Assembly resolutions, IHL first appeared in 1974 but then virtually disappeared from the discourse for nearly twenty years. It was not until 1993 that IHL became a consistent part of the General Assembly’s linguistic repertoire. In the Security Council, the adoption was even more delayed, with the term not appearing in resolutions pertaining to the Middle East until 2002.
Conclusion
What our corpus analysis indicates, as Amanda Alexander notes in her chapter, is that the rise of international humanitarian law as a term was a contingent and contested process that would not come to fruition as the dominant legal term until the early 1990s, when the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994 provided an institutional environment to enforce international humanitarian law as “IHL.”
From there, our collection delves further into the deep connections between language, law, and armed conflict, with investigations into the language of peacekeeping, notions of civilisation and warfare, the gendered notion of the law of armed conflict, and the way language has constructed ways of participation in armed conflict.
What we wanted to achieve in our work was to examine the enduring tension in the law of armed conflict: is war a state of exception governed by the necessity of the sword, or is it a regulated environment where the primary duty is the protection of the human person?
As warfare evolves into the domains of cyber operations and autonomous systems, the linguistic architecture of the jus in bello will continue to be a primary site for negotiating the balance between the survival of the State and the protection of humanity. The findings of the linguistic pilot study suggest that while the terms may change, the underlying tensions regarding the nature and purpose of the law will remain a permanent feature of the human experience of conflict.
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Emily Crawford is a Professor at the University of Sydney Law School
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Marine Corps Sgt. Iyer Ramakrishna
