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30 Brit. Y.B. Int'l L. 206 (1953)
The Limits of the Operation of the Law of War

handle is hein.journals/byrint30 and id is 212 raw text is: THE LIMITS OF THE OPERATION OF THE LAW OF WAR' By PROFESSOR H. LAUTERPACHT, Q.C., LL.D., F.B.A. General considerations THE object of this article is to examine the question of the limits of the operation of the rules of war by reference to what, for the sake of conveni- ence, may be described as an illegal war, i.e. a war of aggression undertaken by one belligerent side in violation of a basic international obligation prohibiting recourse to war as an instrument of national policy.z There has been a tendency to simplify, by way of a somewhat broad generalization, the complicated nature of the issues involved in that question. That simplification has been brought about by the assumption that, in a war which is illegal on one belligerent side, the hostilities conducted by the other side must as a matter of course take the form of collective international action designed to suppress aggression. It has been assumed that an illegal war thus conceived will normally evoke an authoritative determination of aggression and corresponding international action for the collective enforce- ment of the peace. In pursuance of that chain of reasoning it has been repeatedly suggested that, in hostilities of that description, there is no room for the operation of the traditional rules of war and that the proper task of governments and lawyers in this sphere is the elaboration of rules, totally different in nature, governing international police action.3 Others have advanced the opinion that, in that contingency, the accepted rules of war operate only at the option of the States resisting aggression; that such States may modify them at will; and that the aggressor State or States cannot derive from their initial illegality any legal rights, including the rights usually associated with the conduct of war.4 It will be submitted in the present article that this approach to the subject is open to question in principle and that it over-simplifies the situations likely to arise having regard to the existing provisions of the Charter of ' The present article has grown out of an essay entitled 'Rules of Warfare in an Unlawful War' and published in 1953 in Law and Politics in the World Community, a collection of essays in honour of Professor Hans Kelsen. While substantial parts of that essay are here reproduced in a modified form, the writer has in several respects revised his views and considerably amplified their exposition in the light of practice and further reflection. 2 It is an interesting question, as a matter of theory, whether two belligerent sides may be engaged in a war which is illegal on both parts and what is in such cases the legal position in rela- tion to the subject under discussion. However, it is advisable not to complicate further the main issue by an examination of that aspect of the question. 3 See, for example, Jessup, A Modern Law of Nations (1948), pp. 188 if. 4 See below, p. 242.

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