On December 9th, the sixth session of Global Law Distinguished Lecture Series was successfully held at the Law School of Wuhan University. Professor Andrew Clapham from the Graduate Institute of International and Development Studies in Geneva delivered an excellent lecture titled "The Future of the Law of War". This lecture was chaired by Professor Ignacio de la Rasilla, the HAN Depei Chair at Wuhan University. Professor Zhang Wei from the Institute of Human Rights of China University of Political Science and Law, Professor Zhu Lijiang, the deputy dean of the School of International Law of China University of Political Science and Law, and Dr. Li Bingqing from the Law School of Shantou University served as discussants.
At the beginning of the lecture, after Ignacio de la Rasilla briefly introduced and welcomed the guests and audience, Andrew Clapham delivered a special lecture titled "The Future of the Law of War." Clapham explained that the inspiration for this lecture's theme came from a series of publications a century ago titled "Today and Tomorrow." He emphasized that the "future" discussed in this lecture was not based on "current real-world demands" but rather centered around "what the law ought to be." The lecture was primarily divided into six parts: rules prohibiting resort to war and the use of force; rules of neutrality in war; rules on targeting in warfare; economic warfare at sea; accountability; and concluding with "future technology."
Clapham reiterated that the United Nations Charter explicitly prohibits resort to war, and the use of force is only lawful in cases of self-defense or when authorized by the Security Council. However, he pointed out that despite international law stipulating the necessity and proportionality principles in self-defense, these restrictions are often overlooked in war practices. Clapham believed that the principle of necessity applies not just at the outset of war but throughout every stage of military action. He emphasized that when the attacking country is no longer capable of continuing its actions, the defending country's continued use of force loses its necessity and thus violates international law. Furthermore, he quoted a famous line from Sun Tzu's "The Art of War": "To subdue the enemy without fighting is the supreme excellence," reminding us that the true purpose of war should be to resolve conflicts through peaceful means, rather than pursuing the glory of victory.
Regarding the rules of neutrality in war, Clapham used the example of U.S. military aid to Ukraine and cited other historical and contemporary examples, such as U.S. military actions in Cambodia, Iraq, and Afghanistan, to explore the current status of neutrality laws. He argued that these actions often justify themselves by citing "violations" of neutrality laws, reflecting the marginalization of neutrality laws in current international practice. If neutrality laws instead provide excuses for violent actions, then their existence needs to be reevaluated. Clapham predicted that in the future, countries are more likely to adopt a "non-belligerent" strategy rather than strictly adhering to traditional neutrality laws. He speculated that, except for a few countries like Switzerland, most will choose to support one side based on their own interests while avoiding direct involvement in conflicts. He emphasized that the core of neutrality laws should not be to maintain superficial impartiality but to truly reduce the global impact of war through reasonable policy choices.
When discussing targeting, Clapham stressed that future laws of war must revisit the rules on targeting to avoid the current trend of identity-based strikes and the expansion of military target categories. He particularly criticized "signature strikes," which involve attacking based solely on behavior patterns or group affiliation. He called on the international community to prohibit such attacks and ensure that military action is only allowed when there is conclusive evidence that a military target poses an imminent threat. When discussing the definition of military targets, Clapham specifically criticized the expansive interpretation adopted by the United States in its "Manual of the Law of War (2023 Edition)." He believed that the lawful use of force should be limited to defending against direct attacks, rather than forcing enemy countries to submit by cutting off their economy and trade, which not only violates the core principles of the law of war but also undermines the international community's commitment to protecting civilians.
Regarding economic warfare at sea, Clapham pointed out that the traditional "prize law" is no longer applicable in modern warfare. He criticized the potential impact of this law in rewarding aggressor countries and proposed the complete abolition of this outdated rule. Clapham argued that allowing aggressor countries to gain ownership of enemy goods through war is as absurd as allowing thieves to legally retain stolen property under domestic law. He further called on countries to stop promoting the concept of prize law in emerging warfare scenarios such as outer space.
For the pursuit of war responsibility, Clapham proposed a broader perspective. He argued that not only military commanders and government leaders should be held accountable for war crimes, but also "white-collar war criminals" who profit from war through arms trafficking or exploiting prisoners of war. He also suggested the need to establish faster and more equitable mechanisms for pursuing war responsibility in the future to avoid the delays and limitations of existing international court procedures.
In the final part of his speech, Clapham warned about the impact of future technology on the law of war. He pointed out that humans must maintain their role as the subject of moral decision-making in war and should not delegate this responsibility entirely to machines. He recommended that the international community strengthen multilateral cooperation in the field of the law of war to anticipate the legal and ethical challenges that emerging technologies such as artificial intelligence may bring.
In the subsequent discussion session, Zhang Wei raised two questions to discuss with Clapham. The first question was whether the killing of Osama bin Laden by the U.S. military violated human rights. In response to this, Clapham believed that in non-international armed conflicts, an individual could not be regarded as a military target simply because of his or her identity. Instead, it might be legitimate to target that person only when he or she was directly involved in hostilities and posed a direct threat. Clapham further pointed out that in war, from both the perspective of human rights and international humanitarian law, capturing the enemy rather than killing them seemed to bring about greater justice. The second discussion was about Zhang Wei's idea of reducing wars by restricting weapons manufacturing. Clapham thought that this idea was desirable and far-sighted. It was based on the fact that weapons manufacturers might also bear joint and several liability for the use of their weapons in wars, and such a basis was precisely the trend that the future law of war should follow. That is to say, we need to stigmatize weapons manufacturing and transfer to some extent, which can play a positive role in suppressing and avoiding violence and war to a certain degree. Similarly, the disarmament issue mentioned in the Charter of the United Nations also has similar importance.
Zhu Lijiang then shared his views on the law of neutrality and his reflections on the current application status of the law of war. Zhu Lijiang mentioned that we should pay attention to the impact of international law in peacetime on the law of war. Many people believe that due to the establishment of the Charter of the United Nations and the collective security system, the law of neutrality has become an obsolete theory. However, Professor Zhu thinks that this view may not always be correct. He pointed out that there seem to be times when the United Nations system and the collective security system fail, and there may be room for the application of the law of neutrality at such times. In addition, he noticed that after years of development, the law of war has numerous treaties and protocols, yet there are still many violations of the law of war in reality. Zhu Lijiang expressed his confusion about the current situation where the more perfected the law of war is, the more violations there are. He also put forward a thought: if all countries in the world take the law of war seriously and truly abide by it, can the law of war play a role in preventing conflicts?
Li Bingqing raised two related questions in response to Clapham's lecture. The first question was about the role played by large companies in war and the corresponding liability mechanisms. Clapham responded from the perspective of corporate due diligence, pointing out that if a company realizes that its actions contribute to war crimes, it should conduct special due diligence, because this means that company directors or personnel could be prosecuted for war crimes under certain circumstances. Clapham believed that experts in the fields of business and human rights and the law of war need to communicate more and consider the overlaps between the two.Li Bingqing's second question was related to the role of artificial intelligence in the law of war and current armed conflicts, that is, whether large technology companies might play the role of promoters or obstacles to the development of the law of war? In response, Clapham said that first of all, we need to fundamentally rethink who can be targeted, because behind the selection of targets by machines are human instructions; secondly, the technologies of technology companies have inevitably become involved in war, so we need to find ways to make companies responsible for the harm caused by machines; finally, what needs to be done at present is to make people aware that actions have corresponding consequences. That is to say, for business white-collar workers and technology companies, if they engage in actions that promote war or other violations of the law of war, they could also be punished, such as the "white-collar war criminals" in World War II.
This session of the Global Law Distinguished Lecture Series focused on the expectations for the future development of the law of war. In Clapham's lecture, he elaborated on his examination of some existing rules of the law of war and also expressed his prospects for how the law of war should develop to better conform to human rights protection and humanitarianism. Zhang Wei, Zhu Lijiang, Li Bingqing and others also put forward their own thoughts on measures to suppress war, the current application status of the law of war, and the attribution of liability for emerging artificial intelligence weapons. War is an eternal topic for mankind. The forms and means of future wars will continue to change and develop, and there is still a long way to go for the legal regulation.
