Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict

AuthorMajor Alex G. Peterson
Pages01

MILITARY LAW REVIEW

Volume 171 March 2002

ORDER OUT OF CHAOS: DOMESTIC ENFORCEMENT OF THE LAW OF INTERNAL ARMED CONFLICT

MAJOR ALEX G. PETERSON1

I. Introduction

It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents.2

States are structured social orders.3 They serve to bring about the comprehensive coordination of individual energies. For "those affairs which a state cannot deal with exclusively within their own boundaries" there exists international law.4 International law stabilizes the intern

tional system so that states and individuals can have effective transnational relationships. Similar to the function of any legal system, international law attempts to mitigate, to the greatest extent possible, the impact of disputes.5 Where this goal is unattainable, the law seeks the safe "channeling" of disputes, which might otherwise be disruptive and damaging to the international system.6

This need to mitigate disputes is a valid reason for states to support and abide by international law.7 By ensuring law-abiding behavior in themselves and their citizens, each state, collectively and severally, furthers its interest in providing an environment that maximizes its opportunities.8 For this reason, "[t]he international legal system is supported not only by states' interests in promoting individual rules, but also by their interest in preserving and promoting the system as a whole."9 In this way, international law imposes its authority through necessity.10 So even though individual states or parties within the state may attain short-term advantages in violating the law, compliance with the system better serves their long-term interests.11

These same precepts underlie both the law of war and human rights regimes. Both of these legal regimes seek to minimize the consequences of conflict. The law of war does so in governing conflicts between states, while human rights law does so in disputes between states and their citizens. Recognizing the role of the state as the unitary structure of social order, both regimes rely on the state for their implementation. Recently, these two regimes have converged.

These confluences, the humanitarian pressures on the law of war, the escalation of internal armed conflicts, and the growing recognition of universal fundamental human rights, have all played a part in the development

of a new international law regime, the "law of internal armed conflict."12

This article examines the historical roots of this new legal regime, and then explores how this regime has drawn on the experience of the human rights traditions for its continued growth. With the broad parameters of the law of internal armed conflict identified in distinct sources of law, the article then offers a brief look into the future of this regime.

Two trends in international law evidence the future of the law of internal armed conflict: the growing recognition for international humanitarian standards in all armed conflicts, and the growing criminalization of violations of international humanitarian standards. By linking these trends, many commentators see the possibility of enforcing minimum humanitarian standards in internal armed conflicts.13

A variety of tools have been used to examine the conduct of internal armed conflicts, such as truth commissions,14 amnesty laws,15 international criminal tribunals,16 and domestic prosecutions.17 Some commentators suggest that greater reliance on international institutions paves the way for rebuilding these torn societies and re-establishing the rule of law.18

This reflects the growing use of international institutions to examine these internal armed conflicts under either law of war or human rights regimes. This effort has been hampered, however, by the limits of each of these legal regimes.19 Because of these limitations, international regulation of internal armed conflicts has been less than satisfactory.20

A renewed emphasis on domestic tribunals offers the best alternative to enforce minimum humanitarian standards in internal armed conflicts. 21

The resort to external systems, such as international criminal tribunals, should rarely occur. These selectively imposed tribunals add chaos to a society ravaged by internal armed conflict, and they do not represent the community which they judge.22 Rather, the focus of international law after an internal armed conflict should be stabilization through the rule of law. This can be done through the presumptive reliance on domestic tribunals to enforce minimum humanitarian standards.

Drawing from the law of war and human rights regimes, the law of internal armed conflict should focus responsibility for enforcement on states and parties to an internal armed conflict. If the law demands that the

parties legitimize their conduct according to international humanitarian standards, then the effectiveness of domestic institutions will likely increase. Ultimately, supporting domestic tribunals that rely on the law of internal armed conflict rebuilds the state through the rule of law. For these reasons, this article advocates reliance on domestic institutions to enforce minimum humanitarian standards.

II. The Law of Internal Armed Conflict

A foreign war is a scratch on the arm; a civil war is an ulcer which devours the vitals of a nation.23

At first glance, international law may appear to have no place in internal conflicts. International law typically concerns events that are transnational in nature, although exceptions exist under customary international law and conventional law. For example, both the law of war and human rights law can apply to purely domestic situations.24 This is not to suggest that these regimes apply in entirety to internal armed conflicts, but rather to illustrate that some international law can apply to a purely domestic situation.

This section broadly examines the law of internal armed conflict. The examination starts by exploring the law of war and its expansion-a

response to humanitarian concerns-into the law of internal armed conflict. The section then turns to the general conventional and customary parameters of the law of internal armed conflict.25

This section clearly distinguishes between the law of war and the law of internal armed conflict. They are similar because the law of war is the primary source of the law of internal armed conflict. As will be shown, however, the law of internal armed conflict remains unique in both its scope (the ability to reach into purely domestic matters) and its breadth (the type of conduct it regulates).

A. Applicability of the Law of War

The law of war has expanded gradually to encompass internal armed conflicts. This makes sense because conduct that is barbaric or reprehensible in an international armed conflict is no less deplorable when it occurs in the context of an internal armed conflict.26 "There is no moral justification, and no truly persuasive legal reason, for treating perpetrators of atrocities in internal conflicts more leniently than those engaged in international wars."27 The entire body of the law of war, however, has not been transplanted to internal armed conflicts; rather, minimum humanitarian standards are being created.28

One must understand the parameters of the law of war to appreciate fully its limited application to the law of internal armed conflict because, despite these limits, the law of war helps define the law of internal armed conflict. A broad overview of the law of war is sufficient to begin this di

cussion before turning to the enforcement of the law of internal armed conflict.29

  1. Source of the Law of War

    Continually developing, the law of war includes that body of rules that generally applies to international armed conflict.30 It has deep historical roots, and there are many examples of ancient civilizations regulating war. 31 Like most international law, some of these rules were self-imposed by states, while others grew out of treaties between states.32 The law of war regulated both the initiation and conduct of hostilities,33 and a broad range of values motivated its growth.34 Most recently, the desire to lessen the tragedies associated with modern warfare has driven the growth in the law of war.35

    The law of war arises from two primary sources.36 The first is customary international law. A rule becomes customary international law when it is reflected in both state practice and opinio juris.37 Importantly, these criteria require state affirmation, factually, as evidenced by practice, and legally, as evidenced by recognition of the norm in the state's law.38

    Customary international law applies generally to all states, except for those that have persistently objected.39 Certain customary norms, jus cogen norms, however, are non-derogable and states cannot avoid their binding effect even through persistent objection.40

    Conventional law provides the second source for the law of war, and it typically includes those rules defined by treaties, conventions or agreements between states.41 Although a broad range of treaties govern the law of war, the Hague42 and Geneva43 Conventions address this area of the law most comprehensively.44 These conventions apply to all cases of declared

    war or to any other international armed conflict that may arise between two or more of the state parties.45 Similar to customary international law, these rules require state affirmation to give them legal value.46 Unless the treaty or its provisions have become custom, however, conventional law binds only its signatories.47

  2. Triggering the Law of War

    According to conventional law, there must be an armed conflict between two recognized parties to trigger the full body of the law of war. This...

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