Preface

• Author: Kenneth Watkin - Andrew J. Norris
• Position: Professor of International Law, U.S. Naval War College - Captain, U.S. Coast Guard, International Law Department, U.S. Naval War College
• Pages: xvii-xxxii

Preface

FromJune 21 to 23, 201 1, the U.S. Naval War College hosted distinguished in-

ternational scholars and practitioners, both military and civilian, repre-

senting government and academic institutions, to participate in aconference

examining the evolving law in non-international armed conflict (NIAC) in the

twenty-first century. Panelists discussed their views on how the law will develop as

the world continues to struggle with the changing nature of the threats to national

and international security posed by failed and failing States, insurgencies, and

transnational criminal and terrorist organizations. The conference featured open-

ing, luncheon and closing addresses, as well as six panel discussions.

The conference summary that follows was prepared by Commander Christian

P. Fleming, JAGC, U.S. Navy, amember of the Navy Reserve unit that supports the

Naval War College's International Law Department. The summary recapitulates

the highlights of each conference speaker's presentation. As co-editors, we are

deeply indebted to Commander Fleming for his attention to detail and assistance

in facilitating the publication of this "Blue Book." We would also be remiss if we

did not thank Captain Ralph Thomas, JAGC, U.S. Navy (Ret.), for his outstanding

support and dedication in editing the submissions for this volume of the Interna-

tional Law Studies series. We also extend our sincere appreciation to Susan Meyer

of the Naval War College's Desktop Publishing Division for expertly preparing the

page proofs. Additionally, we would like to thank Albert Fassbender and Shannon

Cole for their excellent work in proofreading the conference papers. The quality of

this volume is areflection of their professionalism and outstanding expertise.

This "Blue Book" would not have come to fruition had it not been for the enor-

mously successful conference made possible in large measure by the conference

committee under the leadership of Lieutenant Colonel George Cadwalader, U.S.

Marine Corps* working with Mrs. Jayne Van Petten of the International Law De-

partment, and the support provided by the Naval War College Foundation, the In-

ternational Institute of Humanitarian Law, the Lieber Society on the Law ofArmed

Conflict (American Society of International Law) and the Israel Yearbook on Hu-

man Rights. We thank these individuals and organizations for their enduring sup-

port and generosity.

We hope that the thought-provoking articles published in this "Blue Book" will

add to—and help shape—the debate on the multiple complex emerging legal is-

sues presented by the changing character of war. The insights offered to legal

Preface

practitioners and scholars should assist them as they address these and other issues

that may evolve in future conflicts.

Opening Address

Professor Ken W'atkin delivered the opening address. After introductory remarks,

Professor \\ atkin began his discussion of law in NIAC by quoting Colonel

Caldwell, who in 1906 defined aform of NIAC known as "small wars" as being

"campaigns undertaken to suppress rebellion and guerilla warfare in all parts of

the world where organized armies are struggling against opponents who will not

meet them in the open field." The 1940 Small Wars Manual of the U.S. Marine

Corps indicated that "small wars represent the normal and frequent operations of

the Marine Corps."

Because States have been hostile to clarifying the law, there has been limited suc-

cess in articulating the law of NIAC. The concern is that non-State actors will be

given legitimacy. Given the lack ofconsensus on what law applies to small war, adi-

alogue has been left open as to how and to what degree human rights law governs

the use of force, the treatment of detainees and the accountability process in

NIACs. Gaps remain and the law governing NIAC needs to be clarified for anum-

ber of reasons.

First, NIACs have been and will remain the dominant form of warfare. NIACs

will not disappear and pure international wars are becoming rare. International

armed conflicts (IACs) can change to NIACs overnight. This occurred in Afghani-

stan. Did troops on the ground notice the change? Did the legal advice change? As a

result, for most practitioners the key question to be asked is whether there is an

armed conflict rather than whether it is IAC or NIAC. Ironically, the Lieber Code,

written during the American Civil War, aNIAC, was astarting point for codifying

rules in an armed conflict. Unfortunately, the law applied in NIACs has become

muddier since then.

Second, the lack of clarity regarding the law of NIAC can have aprofound and

sometimes negative effect not only on the victims of conflict, but also on States in

terms of whether their actions are viewed as being legitimate. For example, in post-

9/1 1detainee operations, the dialogue would have been much different if there had

been greater clarity in the law. An application ofthe policy of treating captured per-

sonnel under prisoner of war standards, without providing that status, or as secu-

rity detainees under Geneva Convention IV could have been apractical, defensible

and ultimately helpful approach. However, even today, an internationally agreed-

upon framework governing detainees in NIAC is lacking.

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