The Laws of War and Humanitarian Law: A Turbulent Vista

Abstract

As the United States sent its military forces to engage in operations in Afghanistan, commentators struggled to understand, explain, and criticize the political, security, and legal arguments marshaled to justify the violence. For many scholars, the normal response involves the review of literature addressing history, politics, and the laws of war. Unfortunately, the literature in those fields seems to move independently, with each discipline offering little reference to the learning offered by the others. More important, these disciplines offer very little guidance in the new and unexpected situation occasioned by a against terrorism. History offers no precedent analogous to the assault by two small bands of individuals that caused the collapse of two huge buildings, killing nearly 3,000 innocent victims. Political science offers no wisdom that can facilitate the peaceful resolution of a conflict in which one side can only be satisfied with the total destruction of the other. The laws of war offer no doctrines capable of reliably constraining conflicts between states and amorphous groups bent on suicidal annihilation of noncombatants. From a number of perspectives, the path of historical change in warfare has diverged dramatically from the applicable body of law; new forms of conflict now pose dramatic challenges to the legal tradition. In this article, I explore four works that indirectly reflect the difficulties confronting any effort to make sense of current conflicts using traditional concepts. The works discussed reveal the challenging environment that circumscribes the evolution of the traditional laws of war into norms for the modern era.