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18 Crim. L.F. 1 (2007)

handle is hein.journals/crimlfm18 and id is 1 raw text is: Criminal Law Forum (2007) 18:1-41 © Springer 2007 DOI 10.1007/s10609-007-9027-8 ROBERT MCLAUGHLIN and BRUCE OSWALD* WILFUL KILLING DURING ARMED CONFLICT: IS THERE A DEFENCE OF PROPORTIONALITY IN AUSTRALIA? In opening his treatise On War, written over the first third of the nineteenth century, Carl von Clausewitz observed: Force to counter opposing force, equips itself with the inventions of art and science. Attached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it.1 Whilst never a correct summation of the relationship between war and law,2 the thrust of Clausewitz's assertion nonetheless contains a kernel of truth. As Hersch Lauterpacht noted in 1952, if interna- tional law is at the vanishing-point of law, the law of war is, perhaps even more conspicuously, at the vanishing-point of international law.3 For most of the 20th century, the law of war has indeed been primarily discussed and dealt with in international forums and at an * Robert McLaughlin, Ph.D (Cantab) is a Legal Officer in the Royal Australian Navy. Bruce Oswald is senior Lecturer in Law at the University of Melbourne Law School and an Associate Director of the Asia-Pacific Centre for Military Law. He is currently completing a Ph.D at the University of Melbourne. The views expressed in this paper reflect those of the authors and not necessarily those of the Australian Government or the Australian Defence Forces. The authors gratefully acknowledge the assistance of Professor Tim McCormack, Ms Vivienne O'Connor and Ms Louise Parrott in commenting on earlier drafts of this paper. CARL VON CLAUSEWITZ, ON WAR (Book I, Chapter 1, Section 2) (Michael Howard and Peter Paret eds. and trans.) 75 (1976). 2 See, for example, GEOFFREY BEST, WAR AND LAW SINCE 1945 4-9 (1994): Readers who are inclined to be skeptical about the possibility of law restraining war will... find evidence of its having sometimes and to some extent done so; certain periods of history and certain circumstances having been more propitious for it than others. Best notes, for example, that one characterisation of the Laws of War is that they are the astonishing paradoxical achievement of civilization. 3 Hersch Lauterpacht, The Problem of the Revision of the Law of War, 29 BRIT. Y.B. INTL L. 360, 381-382 (1952).

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