Confronting complexity through law: the case for reason, vision, and humanity.

Author:Kellenberge, Jakob
Position:FOURTEENTH ANNUAL GROTIUS LECTURE
 
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It is a great honor for me to have been invited to deliver the fourteenth annual Grotius Lecture at the invitation of the American Society of International Law and the International Legal Studies Program of American University's Washington College of Law. It is likewise a great pleasure to be speaking at the Annual Meeting of the American Society of International Law, which has for so many decades been dedicated to enabling open and creative discussions of the outstanding legal issues of the day. It must be admitted, however, that addressing the opening of an ASIL meeting entitled "Confronting Complexity" presents a great challenge, for the general theme seems aptly to encapsulate both the times we live in, which are undoubtedly complex, and calls on me to try to outline how we might deal with complexity.

COMPLEXITY

It should come as no surprise that my remarks will primarily focus on the role of the law in confronting the complexity of violence, and particularly the role of international humanitarian law in confronting the complexity of armed conflict. It is fitting, in this context, to pay tribute to Hugo Grotius. In line with principles established by his Spanish and Italian intellectual counterparts Francisco de Vitoria and Alberico Gentili, he laid the foundations of international law, and in his timeless treatise, On the Law of War and Peace, determined that certain rules govern the conduct of war whatever the justness of its cause. We are far beyond the writings of Grotius today in terms of the elaborateness of the international legal framework, including the one governing armed conflict, yet we remain in his debt. He not only paved the way to our current thinking, but showed us that complexity may--and can only be--addressed with reason, vision, and humanity.

What does complexity mean when armed conflict is the reference point for analysis? It means, first of all, that armed conflicts remain a tragic reality in the 21st century and that enormous human suffering continues to be caused by this form of violence. We are all witness to continued violations of international humanitarian law, including deliberate attacks on civilians, the destruction of infrastructure vital to the civilian population, the forcible displacement of entire communities from their habitual places of residence, and various forms of sexual violence inflicted against vulnerable individuals and groups. Persons deprived of liberty in armed conflict are likewise frequently subject to appalling behavior by their captors, including murder, torture, and other forms of ill-treatment; deprivation of humane conditions of detention; and denial of procedural safeguards and fair trial rights. Medical personnel and humanitarian workers are also an increased target of attacks. The law tries to prevent or put a stop to suffering and to deter future violations, but it cannot, by itself, eradicate abuses or be expected to do so.

Complexity may also be approached by examining the features of current armed conflicts and the political, economic, and social backdrop against which they take place--all issues which are beyond the scope of my remarks. Allow me, nevertheless, to note that the International Committee of the Red Cross, which has operations in some 80 contexts around the world, is involved in a variety of conflicts, ranging from those in which the most advanced technology and weapons systems are deployed in asymmetric confrontations, to armed conflicts typified by low technology and high fragmentation of the actors involved. Each case must be approached on its particular facts and a humanitarian response devised to meet the specific needs of those most affected, which is by no means a simple endeavour.

Increased complexity is also a feature of contemporary armed conflicts, the nature of which continues to evolve. The predominant form of armed conflict nowadays is non-international, often stemming from state weakness that leaves room for armed groups to take matters into their own hands based on real or perceived political, ethnic, or religious grievances. Some non-international armed conflicts are predominantly economically driven and revolve around struggles for access to key natural resources. Whatever the case, nonstate armed groups tend to live off the civilian population and engage in appalling acts of brutality to ensure control, instill fear, and obtain new recruits. They frequently resort to looting and trafficking, extortion and kidnapping, as well as other acts amounting to profitable economic strategies that are sustained by the general lawlessness and by national, regional, and international economic and political interests. Thus, the coexistence of violence stemming from armed conflict and that linked to various forms of banditry, and the blurring of lines between armed conflict and crime, including transnational crime, has become a complex reality defying easy practical or legal solutions.

The world is further beset by the combined effects of political, economic, and financial crises. Food prices continue to rise, affecting countless people already suffering from the effects of armed conflict. These trends, when compounded by natural disasters, including drought and floods, are likely to continue to fuel unrest and armed conflicts in the years ahead.

Some of these characteristics are also present in situations of violence below the threshold of armed conflict, including instances of state repression, inter-communal strife, and urban violence. The humanitarian needs in these contexts may be just as grave as in situations of armed conflict. The ICRC relies on its right of humanitarian initiative provided by the Statutes of the International Red Cross and Red Crescent Movement to come to the aid of persons or communities in need when, among other things, its operational involvement is assessed as being of added value.

This very brief outline of current trends in armed conflict and other situations of violence begs the question of whether reality is really becoming increasingly complex, or whether, thanks to technology and new means of communication, we have more facts at our disposal. I will not attempt to answer this because the more important question, in my view, is how do we use international law to address complexity, whether it is indeed increasing or merely perceived to be increasing? Based on historical observation and an analysis of events over the past decade, I would submit that states and other actors have given three responses.

When faced with impending or actual crises, domestic and international institutions have sometimes chosen to abstain from action. An obvious and tragic example was the inability of states to finalize a convention on the protection of civilians ahead of the Second World War, which contributed to the unspeakable consequences that we are all familiar with. On other occasions, the real or perceived complexity of a domestic or international crisis has led states to claim that existing law is not suited to the new circumstances at hand, resulting in the wholesale or partial rejection of longstanding and well-established precepts. This approach, when the legal framework in question is IHL, has the effect of depriving of protection the very persons to whom it was designed to apply. We are also familiar with the consequences of this option. A third approach, fortunately the most common, has been to uphold existing law in the face of new challenges, whether real or perceived, and to analyze that which is possibly new with a view to devising appropriate solutions. Over the course of the last few years this has been the ICRC's approach. The organization has tried to understand and assess the reality of contemporary armed conflicts and to propose answers to some of the salient questions without departing from the balance underlying IHL, which is that between military necessity and the imperative of humanity.

INTERNATIONAL AND DOMESTIC LAW

Allow me to touch briefly upon another issue affecting the ability to resolve complexity through law, which is the relationship between international and domestic law. To begin with, the universality of a given norm may be...

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