By Evan J. Wallach* –
The positive requirements of chivalry currently include courage, trustworthiness, mercy, courtesy, and loyalty, and are mandated both by cultural training (e.g., the military academy honor codes) and by legislative or regulatory prohibitions against violations (e.g., conduct unbecoming). The negative prohibitions are represented both by national codes and by war crime bans against specific conduct types (e.g., treachery, perfidy, and breach of parole). There are, of course, localized chivalric mores that vary from nation to nation, but the underlying requirements for what constitutes honorable conduct are uniquely consistent among modern times and cultures.
International humanitarian law is, or should be, applicable both by and to all battlefield participants, civilian and military alike. The positive norms of chivalry, as part of law of war, are uniquely applicable to combatants, both legal and illegal. There is often a clear distinction between the two although lines may blur in situations other than war (e.g., peacekeeping operations). When, however, non-military noncombatant personnel interact with protected persons, IHL does not require conduct unique to chivalry: courage (including moral courage), courtesy, or loyalty. Thus, unless all law of war and the national military codes are subsumed in IHL, and if the positive elements of chivalry are essential to control of combat improprieties, then they continue to be needed and the British Manual is incorrect. The thesis of this Article is that chivalric elements are essential, and that the new British Manual erred in its elimination of chivalry as a positive required principle of the law of war.
* Judge, United States Court of Appeals for the Federal Circuit. Adjunct Professor of Law Brooklyn Law School, New York Law School. Visiting Professor of Law, University of Munster. Honorary Fellow, Hughes Hall College, University of Cambridge. The views expressed herein are entirely the author’s and do not represent those of any entity or institution with which he is affiliated.