IILJ Working Paper 2003/4 (History and Theory of International Law Series)

The Idea of Non-Discriminating War and Japan

Masaharu Yanagihara

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It is a well-known formulation in most Japanese international law textbooks that two major changes in the theoretical status of war took place. The first change was from the “just war (bellum justum)” theory in the Middle Ages and in Early Modern Times to the so-called idea of “non-discriminating war” in the latter half of the 18th century or early 19th century. The second change was a shift after WWI from the idea of “non-discriminating war” to the so-called “outlawry of war”, or restriction or prohibition of war. This notion was codified in a different way by the Covenant of the League of Nations, the Briand-Kellogg Pact, and the Charter of the United Nations.
The above characterization is found, for example, in Soji Yamamoto’s 1994 book entitled, International Law, which is usually recognized as the standard book on the subject in Japan. Some authors such as Shigejiro Tabata, former professor of Kyoto University, made a clear contrast between the idea of discriminating war and that of “non-discriminating war”, and asserted that the “just war” theory, i.e. “discriminating war theory”, changed to the idea of “non- discriminating war”, and finally to the “discriminating war theory” in a new version. The concept of the idea of “non-discriminating war” is in any case now fundamental to discussion about the change of war among Japanese scholars.