IX. Commentary-Jus in Bello: Charles Garraway

• Author: Charles Garraway
• Pages: 231

All new warfare operates to stress existing law. This is true for every war and every conflict occurring over the last several hundred years. The new type of warfare involved in 'the war on terrorism' is no exception. Caution should be taken, however, not to throw out the existing regime but instead we should study and analyze these stresses for such stresses are not necessarily fatal.

There is always a danger, amply demonstrated over the last few months, of decisions being taken and then followed by legal justifications. This in itself creates further dangers as it may lead to conflicting reinterpretations of existing law. For example, we have discussed the differences between Europe and the United States. However, despite these differences, the end result is often exactly the same. The departing point is in how European countries arrive at their conclusions since they have different drivers, different legal regimes (both national and international), different cultures, and different populations. It follows occasionally then, that the European legal justifications for an action may be quite different from that of the United States. This of course 1. Colonel Charles Garraway is currently serving in the Ministry of Defence of the United Kingdom, advising on issues of international law.

itself creates some danger as there are then two, or more competing legal justifications. Undoubtedly, states on both sides of the Atlantic would benefit from more consultation and coordination before particular positions are adopted.

I agree with Professor Dinstein that existing law is adequate for the issues presented today. I also agree that the principle of distinction is fundamental and absolutely vital when determining combatant status. However, I do not agree with Professor Dinstein on everything. The law of armed conflict is designed to have a greater degree of flexibility than national law because law, in many respects, always focuses on the last conflict. Accordingly, there is a requirement for built in flexibility so that we can apply the law designed for the last conflict to the new situation.

The definition of armed forces has for generations been based on traditional forms of armies. I am talking here about regular armed forces. In some parts of the world today though, we are returning almost to the Middle Ages and seeing feudal types of armed forces with warlords raising their own forces in much the same way as the barons did against King John...