Behaviour in war: The place of law, moral inquiry and self-identity

21 December 2015 Dale Stephens

Daniel Munoz-Rojas and Jean-Jacques Fresard's study "The Roots of Behaviour in War" (RBW Study), which came out in 2004, provided very useful insight into how compliance with international humanitarian law may be better ensured. In essence, it emphasized the role of "the law" and associated enforcement mechanisms in achieving optimal results. Emphasis on "persuasion" regarding the values underpinning the law was identified as having a possibly corrosive effect and was to be de-emphasized, if not avoided. Such conclusions raise serious questions. The study's reliance on neutral normativity of "the law" can be overstated. The issue may be less one of checking aberrant behaviour under the law and more one of ensuring that unnecessary harm is curtailed within the law. The assumptions made by the RBW Study concerning the efficacy of the law are too narrow in their avoidance of the moral and ethical questioning that can accompany legal interpretative approaches. The role of identity and professional culture offers an effective means of ensuring restraint under the law. This article argues that the RBW Study has not stood the test of time and that operational developments have transcended the conclusions made in the study.

About the author

Dale Stephens
Associate Professor at the University of Adelaide Law School

Dr. Dale Stephens is an Associate Professor at the University of Adelaide Law School, Australia and Director of the Adelaide Research Unit on Military Law and Ethics.