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Type: Journal article
Title: Behaviour in war: the place of law, moral inquiry and self-identity
Author: Stephens, D.
Citation: International Review of the Red Cross, 2015; 96(895-896):751-773
Issue Date: 2015
ISSN: 1816-3831
Statement of
Dale Stephens
Abstract: 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.
Keywords: IHL interpretation; military legal culture; legal theory; counter-insurgency; ethics and identity
Rights: © ICRC 2015
RMID: 0030038078
DOI: 10.1017/S1816383115000235
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Appears in Collections:Law publications

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