Claus Kold
PhD, co-founder of TurningPoints and TFF Associate

October 15, 2024

Even if you are not familiar with the philosophical logic of Aristotle, you probably would agree with him that ‘up’ cannot mean ‘down’, that ‘left’ cannot mean ‘right’, and that ‘white’ cannot mean ‘black’. This means also that ‘war’ cannot mean ‘peace’.

In 2000, I carried out a field study of the Danish Armed Forces in Kosovo, Mitrovica, being part of the UN KFOR operation based on the UN Security Council’s Resolution 1244. So, this was a Peace Operation.

I started my field observations already during the battalions’ preparation, and so I was also present during their final exercise before deployment.

The major who started the exercise started it with these words: “So, now the war has started!” This was the end of 2000, and so, it was after the NATO bombing campaign had ended. There was no fighting going on any longer, and the operation had been mandated by the mentioned UN resolution to carry out a ‘peace enforcement’ operation. That is not a war operation. So my reaction was: Whaaat?!

Destructive confusion of concepts

One should think that being able to distinguish between ‘peace’ and ‘war’ should be an obligatory and fairly basic capacity for soldiers, journalists, and politicians alike. However, this distinction does not seem to weigh heavily on participants in the democratic debate, where the concepts are constantly mixed up.

The consequences in Denmark are not particularly noticeable – apart from the soldiers who come home dead, with physical injuries or PTSD/‘moral injuries,’ – but the consequences are very noticeable and deadly for the civilian populations who are tortured and/or bombed in UN Peace Operations – the UN Operations they should otherwise trust and which should secure their lives.

The consequences of not knowing the difference between a UN peace operation and a State War Operation are many.

The world’s peace movements will not be able to support the UN’s peace operations and, thus, will also not be able to support the prerequisites for a world where states’ combat actions can be stopped by the UN by force to protect civilian populations exposed to them. The peace movements also lose their argument that Article 2, paragraph 4 of the UN Charter must be respected, namely that war is prohibited. Nor can the peace movements defend the UN when the UN Security Council’s duty to intervene is misused to wage war against one of the parties in a conflict, as is often the case in a world dominated by superpowers who bend concepts to their arbitrary whims: peace is war and war is peace…

Therefore, it is crucial for the peace movements to get their concepts right and under control. Before participating in a debate, I think they are obliged to study the distinctions we discuss in this article. If they participate, they will reinforce the misunderstanding that ‘peace operations’ and ‘war operations’ are basically the same. And so they will go about the hawks’ errands, the escalation of the wars, and the erosion of the UN Charter, and I guess that is not what they want.

People employed in the defence of states are often good people who want to protect and do good. But they are caught up in the old concepts of defence, and no new concepts and doctrines are developed for peace operations. Therefore, they cannot develop the organization and the professionalism that a peace operation requires. Today, it appears that more than 50% of UN peace operations are unsuccessful. And that leaves the populations that most need help and protection almost in an even worse place than before the peace operation. See e.g. on Afghanistan or Libya.

This is not what soldiers want for the populations they are deployed to help.

However, the concept of ‘war’ creates deep contradictions between the deployed UN soldiers and the civilian populations in the area of operations. The soldiers see the civilians as ‘enemies’, while the civilians see the UN soldiers as ‘conquerors’.

The deployed soldiers then believe that it is their job to force a specific democratic and economic system upon the civilian population. It is often systems and concepts that stand in deep contrast to the fundamental values, traditions and religions that civil society is built upon and which form part of their world of language, the world of symbols and the daily routines of action, which help to make the world understandable and safe for them.

When all that is subjected to ‘peace attacks’ by soldiers wearing both national, NATO and UN logos, the resistance is transferred not only to the peace operation but to the whole of the UN, to the UN Charter, to the prohibition of war and to international humanitarian law. Here we find a very large part of the explanation for the failure of peace operations.

Therefore, it is crucial that soldiers and defence systems are aware of the professional difference between peace operations and war operations.

When I returned in 2001 after my field study, I was shocked that the Danish defence did not know the difference between war and peace, and most of my PhD, therefore, focused on understanding how such a fundamental misunderstanding could have come about. One of the answers emerged as I analyzed my observations. During that period, I – of course – discussed my observations with my colleagues, who were officers, and my manager, who was also an officer. As time went by, the result was an increasing degree of isolation and ostracism (bullying) of me.

After roughly 1 1/2 years, I had to resign from my position as a researcher. Obviously, the defence system could not accommodate having a peace researcher and military sociologist employed. So it was better to mix the concepts for 30 years, receive 48 Danish soldiers in body bags, and ‘lose’ all the ‘wars’ Denmark had waged in the same period.

I have advocated this conceptual and professional difference in the same period with an increasingly louder voice and with many journalists, giving one interview after the other in which I consistently focused on the fundamental differences, including in terms of law, skills, motivations, etc. – only to hear or read the same interview referred to as Denmark’s participation in ‘war operations’.

This is utterly confusing, and regrettably, it is still the situation today. In September 2024, the Danish public service media, Danmarks Radio, broadcast a series that focussed on the Danish participation in wars since the wars in ex-Yugoslavia. In every episode, the journalists say that Denmark is/was at war, backed by the officers who were in command at the time, and they – both the journalists and the officers – conclude that Denmark lost the wars.

Utter confusion! Apparently, there is no capacity to evaluate concepts, processes, skills and results like saying “No, we did not manage to stabilise the situation and we did not create peace… how could we?” No attempt to learn the lessons both in terms of concepts and words used and critically assess the failure on the ground.

Disrespect of the UN Charter

September 21 is the International Day of Peace, a day when the ideals of peace are highlighted and celebrated. The day was introduced in 1981 by the UN General Assembly. On this day, people worldwide are encouraged to undertake and create peace by resolving conflicts peacefully – i.e. through good conflict analysis, dialogues, negotiations, mediation processes, etc.

However, only a few days later, on September 27, Israeli Prime Minister Benjamin Netanyahu stated the following from the speakers’ podium at the UN – humanity’s peace institution par excellence:

“A year later, the IDF (Israel’s Defence Forces, editor) has killed or captured more than half of these terrorists, destroyed over 90% of their rocket arsenal, and eliminated the key segments of their terror tunnel network.

In measured military operations, we destroyed nearly all of Hamas’s terror battalions – 23 out of 24 battalions. Now, to complete our victory, we are focused on mopping up Hamas’s remaining fighting capabilities.

We are taking out senior terrorist commanders and destroying the remaining terrorist infrastructure. (…) Just this week, the IDF destroyed large percentages of Hezbollah’s rockets, which were built with Iran’s funding for three decades. We took out senior military commanders who not only shed Israeli blood but American and French blood as well.

And then we took out their replacements. And then the replacements of their replacements. And we’ll continue degrading Hezbollah until all our objectives are met.”

This is stated at the UN!? And he was not arrested or punished because the UN is not equipped with such a force.

The confusion between laws

In recent years, the cause of peace has come up against the wind, and armaments and violence between states have led to increasing doubts about whether peace can ever be achieved. In this process, we see in Denmark an increasing media coverage and belief that war is legal and that war can solve humanity’s problems.

Even NGOs seem to have jumped on the armament and war bandwagon. For example, one could hear an interview by an Amnesty International representative on Wednesday 4 September. The interview was about whether Danish technology in Israel’s F35 fighter aircraft caused Denmark to violate International Humanitarian Law. Denmark’s Radio’s P1 journalist stated the following in response to his question: “…because it is not illegal to wage a war!” A finding from the journalist’s side, which was followed up by Amnesty with a “no, it is not… but you must always live up to the rules of war. (International Humanitarian Law, CK)”

Both the statement and the answers puzzled me because they were not true. War is unequivocally forbidden, according to the UN Charter.

The confusion about the legality of war is probably due to professional ignorance and the fact that two different legal complexes exist, that these complexes are contradictory, and that they were created during very different eras, forms of government, and technologies.

International Humanitarian Law (IHL) dates back to approximately 700 AD. while the UN Charter and Human Rights go back to 1945/1948. The authorities for the two legal and regulatory constructions are, therefore, different for historical reasons: IHL refers to an anarchic system of sovereign states, while the UN Charter refers to itself with the UN as a globally legitimized peace institution. This reference results in both a vertical legal construction – from state authority down to the citizen – and in a horizontal legal construction – horizontally from population to population (on human rights).

What is war – why is it not peace? (I can’t believe I have to write this…!)

It is essential to define war to be able to legislate, prevent, regulate, negotiate, mediate, and end acts of war and to avoid intellectual and political confusion. For instance, is the present fighting in Gaza acts of war, genocide, or both? And are UN peace operations also just another word for war operations, as the Danish minister of defence maintained in a 2005 interview in without being questioned further by the journalist?

Roughly speaking, the European wars can be divided into some extensive periods, which also mark significant differences in the form of government, legality and technologies of the states: the hoplite wars of the Greek city-states from 700 until approx. 300 BC; Rome’s wars from ca. 300 BC and up to approx. 500 AD; the knights’ crusades between 1050 – 1300; the religious wars from ca. 1300 and until the Peace of Westphalia in 1648; then the limited dynastic wars until the total wars of the nation-states in 1789, which took place until 1945. After 1945, the state borders have been more or less fixed in Europe, which was also spared from direct war, but subject to the Cold War.

These periods also had different laws/protections for the civilian populations. Around 900 BC, the talion principle was applicable; around 400 AD, Roman law ruled; 1250 saw canon law; 1500/1648 saw the states’ positive law developed; from 1789, we see the states develop both positive law and civil law; and finally, in 1945/90, we see the UN begin the development of cosmopolitan human rights.

What definition of war does this lead to? With the gradual establishment of a new type of nation-states from 1789, European wars, in the words of Van Creveld, became ‘Trinitarian wars’, (1) separating ‘government’, ‘military’, and ‘population’ into different spheres.

According to the thinking of both Kant and von Clausewitz, organized violence should only be called ‘war’ if it was waged by a state (2). In the words of the latter: “War is nothing but a duel on an extensive scale. If we would conceive as a unit the countless numbers of duels which make up a war, we shall do so best by supposing to ourselves two wrestlers. Each strives by physical force to compel the other to submit to his will: each endeavours to throw his adversary and thus render him incapable of further resistance. War therefore is an act of violence intended to compel our opponent to fulfil our will (my italics).” (3)

“War is an act of violence pushed to its utmost bounds; as one side dictates the law to the other, there arises a sort of reciprocal action, which logically must lead to an extreme. This is the first reciprocal action, and the first extreme with which we meet (…) The contest in war is not a contest of individual against individual, but an organized whole, consisting of manifold parts (…) War therefore is an act of violence intended to compel our opponent to fulfil our will (…) in the combat all the action is directed to the destruction of the enemy (my italics).” (4) So, with Clausewitz we find war to be defined by being a reciprocal duel, an act of violence, testing an organised whole with the aim to destroy the adversary, the enemy.

This Clausewitzean understanding of war is not very different from contemporary definitions. If we take Levy and Thompson’s definition as an example, they write: “We define war broadly as sustained coordinated violence between political organizations (…) obviously, war is violent (…) The element of violence in warfare separates it from other forms of intergroup and interstate conflict (…) Another component of our definition of war involves the apparently innocuous word that follows violence in our definition – ‘between.’ (…) It indicates that violence must be reciprocated for it to qualify as war (…) The actors are organizations, not individuals. Individuals do the actual fighting, but they fight on behalf of a larger collective political unit, under the direction and coordination of political and/or military leaders, to advance the goals of the collectivity, or at least of its leadership (…) The political object is the goal, war is the means of reaching it, and means can never be considered in isolation from the purpose.” (5)

As we see, Levy and Thompson do not relate war only to the state, but open the definition to post-modern interpretation by relating war also to political organisations.

To conclude: wars are reciprocal; wars are fought with the aim to win – one conflict party over another; the settlement is based on violence and who is the strongest; and violence is carried out collectively – either by a state or an organisation with the capacity to act violently.

Peace Operations

Contrary to war operations, peace operations are a much younger type of conflict management operation, starting with the Charter of the UN in 1945. In the period from 1945 until today, peace operations have had to develop new sets of concepts, vocabulary, policy, organization, and new types of recruitment, training and conflict behaviour of soldiers. (6)

The first generation UN peace operations (1945–1989) were defined and are described as symmetric non-coercive state-state operations with the objective of keeping the agreed truce after a period of war. (7)

After the Cold War the pattern in international conflicts was changing from symmetric to asymmetric conflicts. The number of peace operations grew and began to include new objectives. The second-generation UN peace operations (1989-1999) were, in practice, state-society operations with the objective to intervene in civil wars. (8) The aims of this second-generation peace operations became increasingly more complex than the first generation’s maintaining of a ceasefire. (9)

Because of this, the third-generation UN peace operations (1999 and onwards) have changed into asymmetric interventions. Focus is now on the conflicts within civil society, as these internal conflicts are seen as the root causes of larger state conflicts and terror. The conflict scenario is thus changing into a state–culture scenario (10), whereby deep cultural and religious identity processes become part of the asymmetric conflict. Instead of symmetrical visible military capacities, soldiers are now confronted by cultural symbols, behaviour and languages they don’t understand, and they themselves perform cultural practices that the local populations, in turn, don’t understand. (11)

The first blue helmet peacekeeping operation (PKO) was created in 1956 to help fuse the Israeli-Egypt conflict in the context of the Suez crisis. Since then, peace operations have reflected the evolution of the international system. According to Tardy, this has formed peace operations into a broad concept “covering military and civilian activities led by state- and non-state actors in a host state (or more), and aimed at dealing with a crisis or with the consequences of a crisis, at different possible stages (before, during and after a crisis). Most importantly, peace operations are short of war, the principle of impartiality being theoretically indissociable from peace operations. The central and primary objective of any peace operation is the promotion of peace, not the defeat of one of the parties.” (12)

The historical development of the different types of peace operations is reflected by Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, who offer definitions of peace operations as developed through three generations:

“We use peacemaking in the sense of moving towards settlement of armed conflict, where conflict parties are induced to reach agreement voluntarily, for example as envisaged in Chapter VI of the UN Charter on the ‘Pacific Settlement of Disputes’ (Article 33). Peacekeeping (traditionally with the consent of the conflict parties) refers to the interposition of international armed forces to separate the armed forces of belligerents, often now associated with civil tasks such as monitoring and policing and supporting humanitarian intervention. Peace enforcement underpins the work of peacemaking and peacekeeping by addressing structural issues and the long-term relationships between conflictants.” (13)

Due to this development, complexity is growing fast, perhaps making clear definitions even more difficult.

In the words of Tardy, “…peace operations are supposed to embrace the whole gamut of the new activities performed by states, international organizations and other actors when dealing collectively with conflict.”

Tardy points critically to the fact that the UN, NATO, US, and EU all develop different and sometimes even diverging views on peace operations, and on top of that, he adds: “Peace operations are also difficult to grasp because they entail many different activities that are fundamentally different in nature, and that involve different actors, all having their own approach to the concept, their own agenda, and their own motives.” (14)

In an earlier article from 1994 Charles Dobbie, who authored the Army Field Manual, ‘Wider Peacekeeping’ – a post-Cold War peacekeeping doctrine which was developed for the British Army – touched on the same problem and argued that: “…the international community has failed, sometimes with catastrophic consequences, to distinguish adequately between peacekeeping and peace enforcement – two activities that require radically different conceptual approaches. (..) Peacekeeping should be characterised by impartiality and minimum force, peace enforcement, on the other hand, dispenses with consent and is conducted, in the main, in accordance with standard military principles.” (15)

From actual military reports, Dobbie shows that consent in peacekeeping is expressed by soldiers as absolutely central together with other principles: “Avoidance of escalation, impartiality, negotiation, patience, trust, and confidence, the developing of relationships, mediation and restraint (..) serve to develop cooperation by protecting and supporting consent.” (16)

In the US Military’s ‘Joint Tactics, Techniques, and Procedures for Peace Operations’ Manual we find somewhat the same reflected. Here it is the difference between war and peace operations which is described: “In PEO, the enemy is the dispute, not the belligerent parties or parties to a dispute. Although PEO may require combat, they are not wars and may have more restrictive ROE than wars (my italics).” (17)

So, we see a fast historical development, internationally diverse definitions and various motives behind peace operations which make it hard to distinguish between different peace operations and even hard to distinguish peace operations from war operations. This is not strange, because as Trevor Findlay writes: “Attempts at a more cogent definition have always been bedeviled by its peculiar nature. Peacekeeping is not mentioned in the UN Charter; it has never been guided by established theory or doctrine; the term was invented long after praxis had begun; and improvisation has characterized its evolution ever since.” (18)

Perhaps as a consequence of different peace operation concepts such as peacekeeping and peace enforcement facing ‘new wars,’ “operational planning no longer separates combat from ‘operations other than war’ (OOTW) but envisages use of military capabilities across the full ‘spectrum of tension’ from traditional peacekeeping duties through to combat against spoilers and enemies of the peace.” This has raised the critique, “that third-generation peacekeeping from a conflict resolution perspective may be an attempt to combine what cannot be combined – greater military robustness with the service of genuinely cosmopolitan international norms.” (20)

If researchers have a hard time defining and differentiating between types of operations in their offices and at a normal work pace, how then can soldiers be expected to be able to differ in a crisis when high- pitched combat is taking place? One can also wonder if soldiers are trained to combine what cannot be combined mentally? If this is so, how does this influence their capacities to shift between attitudes of war and attitudes of peace? (21)

To conclude: contrary to war operations, peace operations are (principally) settled by third parties (the UN Security Council) to the conflict, not the conflict parties themselves. The third parties are given a mandate which is based on principles, not on force or size. And very importantly: the purpose of the peace operation is not to win and eliminate the state in question, but to support the state structures, create social trust and security as well as law and order.

In the process of deployment and ending combat, the UN forces deployed can use force to separate the different parties of the conflict – like the police can separate fighting persons in the street or a bar. This does not make the UN forces a party to the conflict…that is, if they are skilled in doing so. Today, however, the soldiers are, alas, not very skilled at neutrality, mediation, and meeting different cultures.

To sum up both concepts, war and peace operations are profoundly different in central concepts and dynamics, such as purpose, consent, and restriction of violence. But regrettably, this difference has still not been professionalized.

IHL – International Humanitarian Law – and the laws and rules of war

The first sparse regulations of war in Europe are seen with the Carolingians’ gathering of power in 700 AD, which drew ideas from Augustine, Aquinas, Suarez, etc., and which led to some of the first ideas about Jus ad Bellum, the right to war. Wars had to adhere to 5 principles if they were to be justified.

Those central principles are: that the war must be proportional to the cause, have a clear purpose, the goal must be achievable and the leadership must have legitimacy. These principles still form the foundation of IHL. One of the problems with Jus ad bellum is that their religious-ideological starting point makes them impossible to stop.

Under the influence of the Dutchman, Hugo Grotius’ theoretical and legislative work with international law – he worked in Sweden until his death in 1645 – the negotiators in connection with the Westphalian peace negotiations in 1648 conceptually ‘pulled’ the war away from a ‘Jus ad bellum way of thinking’ and towards a legally dominated ‘Jus in Bello thinking’, where the religious war thus came under political control. That was the idea, at least… A shift which marks a transition from the ecclesiastical to the state. However, ever since, the number of wars and casualties have gone up.

After this, war was seen as a legal element in international politics. In the Westphalian construction, states are equal and free, possessing ultimate authority over all their citizens within a bounded territory; relations with other sovereign states are voluntary; these relations are limited in form and intent to military and economic alliances; and most importantly – domestic policy is private, separate from foreign policy. Furthermore, in this construction, citizens are gradually granted vertical civil rights but not human rights.

The period leading up to the end of World War II, when state sovereignty and vertical positive law were developed, was also a period of symmetrical wars and a Trinitarian notion of separation between government, military, and civilian population.

Human rights

The trial in Nuremberg after World War II was also a trial with the principles from the Peace of Westphalia, and especially a trial with the state’s positive law in relation to its own population. The trial with the state’s positive law was led by the accusation of crimes against humanity, which was a completely new formulation on the part of the Allies, and which did not take its point of departure from the state’s and the citizen’s vertical positive law, but rather from the person’s horizontal cosmopolitan right, namely Human Rights.

It was Germany’s extermination of Jews and other minorities that this new right aimed at. It could no longer be a state’s private right. In cosmopolitan law, the right of the person is sought to be universalised, so that the right of the person is no longer only referred to the domestic policy of a state – the positive right. This is an attempt to avoid civilians in a war zone being defined as savages, uncivilised, heretics, rebels or terrorists who can be subjected to indiscriminate killing by a political elite.

In the cosmopolitan conception of sovereignty, the formal equality between states has become increasingly dependent on the states’ recognition of common values and principles, such as the observance of Human Rights. See e.g. the UN’s adoption of ‘Responsibility to protect’, which is a global obligation.

This legal principle was approved by the UN General Assembly in 2005 to prevent genocide, war crimes, ethnic cleansing and crimes against humanity. With such an adoption, sovereignty no longer means ultimate authority over a population. States that violate certain norms in the treatment of their citizens will not in the future be perceived as belonging to the international community of states.

The UN Charter and the Prohibition of War

In May 1945, over 300 delegates from 51 nations gathered in San Francisco to sign a Charter for the new peace organisation – the United Nations – that was to be formed. The delegates’ work was based on proposals agreed upon by the Big Four, the United States, the Soviet Union, Great Britain and China, at Dumbarton Oaks in 1944.

Already in connection with the Allied conference in Dumbarton Oaks in 1944, a draft of the Pact that was to be signed had been worked out. One of the central ideas incorporated into the draft was the principle that states should henceforth refrain from violence in international relations. This meant that the states that joined the UN Charter undertook to refrain from threatening or using military force against the territorial integrity or political independence of other states.

States were to resolve international disputes by peaceful means, such as negotiations, mediation or arbitration. Both the Covenant and Article are legally binding on the states that have ratified the Covenant. The basic provision is found in Article 2, paragraph 4:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

The documents from the discussions at Dumbarton Oaks are still guiding the interpretation of the UN Charter in 2024. The UN Charter thus laid the foundation for an international legal order that expanded the prohibition of war that had already been laid down in the Kellogg-Briand Pact in 1928.

Legally, there is not much to discuss regarding this UN Article – war was finally prohibited. (Editor’s addition: The UN Charter’s Art 1 states that peace shall be established by peaceful means, and the preamble states that future wars must be avoided). The Charter does allow self-defence – Article 51 – but only within a very tight framework, and only as an interim measure until the Security Council intervenes on behalf of the International Community of states.

The UN Charter vis-à-vis International Humanitarian Law

This development leads to the fact that the UN Charter and International Humanitarian Law (IHL) today constitute different parts of the international legal complex, each of which serves different purposes and offers fundamentally different interpretations of the right to life.

However, please note that in the relationship between the two legal complexes, the UN Charter is the fundamental document that regulates the peace and security of the international community. According to the UN Charter, specifically Article 103, the UN Charter takes precedence in case of conflict with other international agreements. This means that if a state is a member and thus bound by the UN Charter and is also bound by the laws of another treaty, e.g. IHL, and a conflict arises, then the UN Charter will take precedence. Article 103 of the UN Charter:
“In the event of conflict between the obligations of the Members of the United Nations under this Charter and their obligations under any other international agreement, the obligations under this Charter shall prevail.”

The Charter establishes the UN’s structure and functions and determines the principles that govern the relationship between the world’s member states, including the maintenance of international peace and security, the promotion of friendly relations between states and the promotion of international cooperation to solve global problems. It also establishes the Security Council, which has the main responsibility for maintaining international peace and security, and it lays down general principles such as the sovereignty of states, non-interference and the peaceful settlement of disputes.

IHL is thus a subordinate specialized branch of international law that regulates the conduct of armed forces – i.e. illegal – conflicts. The primary sources of IHL are the Geneva Conventions and their Additional Protocols. These treaties formulate rules that seek to protect civilians, wounded and sick soldiers and prisoners of war during armed conflicts – that is, protection in an unlawful situation.

The main purpose of IHL is to limit the suffering caused by armed conflicts, to protect those who do not take part in the hostilities and to mitigate the consequences of illegal armed conflicts. It is therefore fundamentally wrong to refer primarily and solely to IHL’s requirement of the proportionality of the violence, and at the same time keep silent about the primacy of the UN Covenant and the prohibition of war.

The human right to life

The fundamental difference between the UN Charter and IHL becomes especially visible in their philosophy concerning whether or not people have the right to live.

The UN’s thinking on the right to life can be found in the Universal Declaration of Human Rights. In Article 3, it is stated that every person has the right to life, liberty and personal security. Likewise, Article 6 of the International Covenant on Civil and Political Rights states that every human being has an inherent right to life that this right must be protected by law, and that no one may be arbitrarily deprived of life. No laws and rules of warfare can live up to these two Articles, and neither can the rules of IHL.

For IHL does not prohibit killing during armed conflicts since, according to IHL, the parties may engage against enemy forces. If a military target is identified, an attack may, according to the rules of IHL, take place if the use of force is proportionate to the expected military advantage:

“Article 57(2)(a)(iii) emphasizes that the belligerents, before carrying out an attack, must take all possible precautions to ensure that the attack will not cause such disproportionate harm to civilians.”
It is the term disproportionate that is decisive here because it means that the parties to the war must probably take all possible precautions to minimize damage and killing of civilians, but only to minimize the number of murders. Here we see that IHL was formulated before cosmopolitan human rights were formulated because it is in direct conflict with Human Rights.

As can be seen, the right to state violence and the right to life are perceived very differently in the UN Charter and in IHL. In the UN Charter, war is prohibited, and man has the right to live, while IHL does not give man the right to live but only seeks to minimize the violence of war.

State politicians opportunistically refer to IHL when they start wars and to the UN Covenant when they accuse other state leaders of starting wars. The existence of two legal complexes with different mandates, laws, and regulations opens the loading gate of opportunism, double standards, and legal uncertainty.

One legal order

The UN Charter prohibits war, while IHL allows proportionate killing of civilians. By now it should be clear that an international legal complex cannot function when two such basic legal regulations contradict each other so fundamentally.

A central challenge for peace in today’s world is, therefore, that two divergent legal approaches are arbitrarily applied in connection with states’ illegal wars. The fundamental challenge for the UN consists in the construction of a jurisdiction capable of reconciling the partiality of the states’ positive law with the universality of cosmopolitan law.

In other words, there is a need for one set of laws that all states must adhere to.

Notes

1) Martin L. van Creveld, The Transformation of War, p. 35.

2) Creveld, The Transformation of War, p. 37.

3) Claus von Clausewitz, On War, p. 101.

4) Clausewitz, On War, p. 103, 130, 131.

5) Jack S. Levy and William R. Thompson, Causes of War, (Oxford: Wiley-Blackwell, 2010) p. 6-8.

6) Thierry Tardy (Ed.), Peace Operations after 11 September 2001, (New York: Routledge, 2004); Jane Boulden, Peace Enforcement. The United Nations Experience in Congo Somalia and Bosnia, (Westport: Praeger Publ., 2001); Mary Kaldor, Human Security, (Cambridge: Polity Press, 2007).

7) Tardy, Peace Operations after 2001; Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution.

8) Jane Boulden, Peace Enforcement. The United Nations Experience in Congo Somalia and Bosnia, p. 83; Mark Duffield, Global Governance and the New Wars, (New York: Zed Books, 2001; Tardy, Peace Operations after 11 September 2001.

9) Charles Dobbie, ‘A Concept for Post-Cold War Peacekeeping’, Survival, Vol. 36, No. 3 Autumn, 1994, pp. 121-48; Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution; Tardy, Peace Operations after 2001

10) Mary Kaldor, New and Old Wars; Duffield, Global Governance and the New Wars; Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution; Joelien Pretorius, ‘The Security Imagery: Explaining Military Isomorphism,’ Security Dialogue, Vol. 39, No. 1, 2008, pp. 99-120; Shira Maguen and Brett T. Litz, ‘Predictors of Morale in U.S. Peacekeepers.’ Journal of Applied Social Psychology, Vol. 36, No. 4, 2006, pp. 820-836.

11) Duffield, Global Governance and the New Wars; Robert A. Rubinstein, Peacekeeping Under Fire. Culture and Intervention, Boulder: Paradigm Publ., 2008; Frederik Rosén, ‘Third-Generation Civil-Military Relations’ Security Dialogue, Vol. 40 No. 6, 2009, pp. 597-616.

12) Thierry Tardy, Peace Operations after 11 September 2001, p. 1.

13) Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution, p. 30.

14) Thierry Tardy, Peace Operations after 11 September 2001, p. 2.

15) Charles Dobbie, ‘A Concept for Post-Cold War Peacekeeping’, p. 121.

16) Charles Dobbie, ‘A Concept for Post-Cold War Peacekeeping’, p. 126.

17) Joint Pub. 3-07.3, 12 February 1999, p. X

18) Trevor Findlay, The Use of Force in UN Peace Operations, (New York: Oxford University Press) p. 4.

19) Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution, p. 143.

20) Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution, p. 147.

21) Volker C. Franke, Resolving Identity Tensions: The Case of the Peacekeeper, Journal of Peace Research, Vol. XIX No. 2, Fall 1999.

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  international law and warfare, UN Charter, War is not peace, war is prohibited, war operation and peace operations