The Law of Armed Conflict - a Contemporary Critique

[The modern law of armed conflict is a testament to humanity's determination to eviscerate the horrors and suffering of war, and it has been profoundly successful in its penetration of the contemporary military psyche, particularly in the case of Western militaries. While this body of law is championed by all, its iconic success has resulted in an 'enchantment' of its character that resists effective re-examination of its underlying principles and precepts. Recent conflicts in Afghanistan and Iraq, in conjunction with the more general global war on terror, have fostered an unprecedented amount of popular discussion and critical review of the modern law of armed conflict. This article adds to that critique by arguing that the ambiguities inherent in key aspects of the law of armed conflict may contribute to neither the proper realisation of humanitarian goals nor the attaining of effective victory on the battlefield. There is a need for a more pragmatic assessment of many of the principles underpinning the law and a recognition that the law should evolve to take account of current operational and technological realities, especially in the context of targeting decisions. ] CONTENTS I Introduction II The Modern Jus in Bello and the Historical Quest for Relevancy A Law of Armed Conflict--The Collaborative Vocabulary III Targeting Choices and Modern Schisms A The Nuclear Weapons Advisory Opinion--Variations on the Treatment of Proportionality B Factors regarding Proportionality Determinations C Lives of One's Own Military Members--Relevance in the Proportionality Equation D Granularity of Standards E The Principle of Distinction F Global War on Terror and Distinction G Naval Warfare and Standards for Distinction H Summary IV Proposals for Reform V Conclusion I INTRODUCTION The events of 11 September 2001 reignited the scholarship of realist legal commentators who argue the necessity of a more pertinent, post-Cold War interpretation of the right to go to war, or jus ad bellum. (1) The innovative legal positions subsequently adopted to undertake military operations in Afghanistan and Iraq reflected this realist approach and have, not surprisingly, been subject to intense and unprecedented popular commentary. (2) Concomitantly, the law of armed conflict, which has been necessarily invoked to govern military operations in these conflicts, has equally been subjected to intense scrutiny, as well as in the broader context of the global war on terror. The unrelenting debate concerning the status of captured al Qaeda and Taliban members, the targeting of terrorist enemies and the propriety of the military tribunals has focused attention on the efficacy and integrity of the modern law of armed conflict, and has highlighted many of the ambiguities and limitations of this disaggregated body of law. The goal of invoking international legal prescriptions in order to frame the modern law of armed conflict was always an audacious one. Seeking to restrain humanity's basest tendencies when engaging in warfare seems noble and yet potentially quixotic. Is it travesty or triumph that international law is harnessed in this way to regulate war by 'formulating' the bloodshed and mayhem of armed conflict? The eminent Harvard commentator Professor David Kennedy observes that 'the law in war and the law of war are situated between a promise and a fear: the promise that violence will be displaced by law and the fear that it will not'. (3) Such ambivalence derives from the ambitious project of seeking to regulate violence, which allows violence to be admitted into the legal realm. Here, Kennedy notes that violence may be tamed, rendered knowable and revealed 'in all its nuances and subtleties'. (4) It remains a persistent challenge to harness law's restraining promise, especially when interpreted through the prism of positivist hegemony and the invocation of sovereign prerogatives. …