The Law of Armed Conflict and the War on Terrorism

• Author: David E. Graham
• Position: Special Assistant to the Judge Advocate General of the United States Army
• Pages: 331-336

XIX

The Law of Armed Conflict

and the War on Terrorism

David E. Graham1

Incommenting on Mr. Lavoyer's presentation, as well as his paper,2allow me to

begin with his concluding remarks and then move from there to speak to his

observations regarding whether there is aneed to revise, amend, or supplement the

existing law of armed conflict in light ofthe events of September 11,2001 —and the

ensuing declaration by the United States that it is now engaged in a"war on terror-

ism." Iwould note that, contrary to Mr. Lavoyer, I^will use the term "law of armed

conflict" (LOAC), as opposed to "international humanitarian law" (IHL). Once

again, as Ihave stated on anumber of previous occasions, both at conferences here

in Newport and elsewhere, Ihave yet to hear adefinitive explanation as to the need

for—or the body oflaw encompassed by—this latter term. If it is but akinder, gen-

tler synonym for the law of armed conflict, it is duplicative in nature—and unnec-

essary. If, on the other hand, it purports to embrace some undefined aspects of

human rights law, Ireject it as unclear, confusing, and fraught with peril for com-

manders in the field.

In the draft of his paper, Mr. Lavoyer notes that, "The best guarantee for respect

[of the law of armed conflict] is to keep the law realistic." With this statement, Iam

in complete agreement. Aspirational LOAC standards are inherently subjective in

nature and bear little reality to the practice of warfare and modern weapon sys-

tems. Moreover, they harm the credibility of the LOAC as awhole. As has been