Analogies in the historical development of IHL (1864–2001)

Abstract Analogies appear to permeate the entire domain of international humanitarian law (IHL), but as an independent subject of inquiry, they remain largely overlooked within IHL scholarship. This article seeks to initiate a debate by examining the role(s) of legal analogies in the historical development of IHL from 1864 to 2001. It pursues two specific objectives. First, it undertakes an empirical investigation into the prevalence and significance of analogies in IHL. Drawing on the collected data, the article proposes a taxonomy of IHL analogies encompassing three categories: analogies preceding IHL norms, analogies embedded within IHL norms, and analogies following IHL norms. Second, building on the hypothesis that analogical reasoning plays a pivotal role in shaping the normative content and structural evolution of IHL, the article analyzes such reasoning from an axiological perspective, identifying the underlying values and benefits that it conveys within the field. In the context of IHL’s historical development, two traditional values emerge prominently: coherence and flexibility. On the one hand, analogies have enabled the discipline to evolve coherently, avoiding chaotic progressions; on the other, they have brought flexibility, allowing the law to adapt to changing realities on the ground. This two-pronged approach demonstrates that analogical reasoning in IHL is both pervasive and substantive: it has played a crucial role in the transformation of IHL over time.