Prologue to a voluntarist War Convention.

AuthorSloane, Robert D.

This Article attempts to identify and clarify what is genuinely new about the "new paradigm" of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions--in both the formal and informal senses of that word--onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse "party" to the conflict both (1) repudiates a predicate axiom of international humanitarian law and (2) exhibits an organizational structure at odds with the one presupposed by the inherited conventions of war.

In particular, modern transnational terrorist networks, unlike most nonstate actors of concern to international humanitarian law in the past (including, for example, francs-tireurs, insurgents, and national liberation movements), characteristically repudiate the conventional, "amoral" conception of noncombatant immunity and the triad of core international humanitarian law principles-necessity, proportionality, and distinction--that follow from it. Furthermore, the diffuse, decentralized structure of modern transnational terrorist networks--in contradistinction to the hierarchical, linear structure of professional state armies and cognate private armies of past eras--makes them ill-suited for compliance with international humanitarian law. It also renders deterrence and negotiation--the principal historical mechanisms by which states neutralized threats from nonstate actors--frequently ineffective. Coupled with the increasing availability of catastrophic weapons on illicit markets, these features vastly complicate efforts to adapt the inherited war convention to contemporary circumstances--a periodic ritual that has followed major wars and crises since the advent of modern international humanitarian law in the nineteenth century.

For these reasons, international humanitarian law must begin to work out the contours of a voluntarist war convention to govern what is likely to be a prolonged state of episodic armed conflict with this particular genre of twenty-first-century nonstate actor. The conventional regimes governing internal and international armed conflicts should be augmented--but not, in my judgment, displaced--by conventions designed for what may be characterized as transnational armed conflict. Several factors, however, counsel Burkean caution and multilateral deliberation before introducing innovations: the continuing vitality of certain instrumentalist rationales for international humanitarian law, its synergy with international human rights law, and the manifest potential for abuse. I therefore conclude that, in the meantime, (1) any proposed modifications should be incremental, transparent, tentative, and subject to revision as the genuine scope of military necessity becomes clear; (2) the burden of persuasion should be on those who urge such modifications; and (3) insofar as existing law does not clearly govern, sound policy rationales generally continue to commend adherence to the inherited conventions of war.

TABLE OF CONTENTS INTRODUCTION I. THE STRUCTURE OF THE INHERITED WAR CONVENTION II. ROTOCOL I REVISITED III. IHL AND THE "NEW" NONSTATE ACTOR A. Noncombatant Immunity B. A Network of Networks IV. PROLOGUE TO VOLUNTARIST WAR CONVENTION CONCLUSION INTRODUCTION

Until their first contact with Europeans in the 1940s, the Tsembaga, a primitive society of about 200 people comprising one of a score of Maring clans residing in the territory now known as New Guinea, (1) engaged in two stages of warfare. In the first, the "nothing fight," belligerents lined up "within easy bow shot" to fire arrows at one another while protecting them selves by huddling behind large shields. (2) Because "the unfletched arrows of the Maring seldom kill[ed]," neither clan sustained many casualties. (3) Nothing fights at times lasted for four or five days. (4) They operated in practice "to suppress rather than to encourage hostilities," which could otherwise escalate into the far more brutal and protracted "true fight." (5) Nothing fights generally ended "when both sides agree[d] that the number of deaths [wa]s sufficient for the present." (6)

The point of this anthropological anecdote, and countless others that could be told, is to emphasize a fact that is too easily lost in the labyrinth of modern rules and regulations of the law of war: all war is, by definition, a social phenomenon governed by conventions. Strange though it may seem,

What is war and what is not-war is in fact something that people decide .... As both anthropological and historical accounts suggest, they can decide, and in a considerable variety of cultural settings they have decided, that war is limited war--that is, they have built certain notions about who can fight, what tactics are acceptable, when battle has to be broken off, and what prerogatives go with victory into the idea of war itself (7) The extensive codification and intricacy of the modern law of war tends to obscure its conventional nature. In the lexicon of international law, as well as ordinary speech, a convention often denotes a treaty, (8) And conventions in this formal sense prescribe the bulk of the positive law of war. But a convention also refers generally to a "practice or procedure widely observed in a group, especially to facilitate social intercourse; custom." (9) For its efficacy, authority, and legitimacy, the contemporary law of war relies as much, if not more, on this latter type of convention.

The term international humanitarian law ("IHL"), in contrast to older appellations such as the law of armed conflict or the law of war, connotes a shift in the emphasis of the modern "war convention." By this, in the singular, I mean not only positive international law but the complete "set of articulated norms, customs, professional codes, legal precepts, religious and philosophical principles, and reciprocal arrangements that shape our judgments of military conduct." (10) Broadly speaking, this shift has been from a network of customary law and treaties--enforced by a variety of political dynamics that obtain between the professional armies of nation-states, including reciprocity, reputation, and military discipline within a hierarchical command structure (11)--to an increasing reliance on norms of human dignity and individual rights that IHL shares with and derives in part from international human fights law. (12) Hence, substantial authority suggests that modern IHL now prohibits, for example, reprisals, which were once a lawful means to enforce the laws of war. (13)

Conventions need not be written, still less codified in any legally binding form. (14) But just as a contract generally requires an exchange of promises between two or more parties and a "meeting of the minds,"(15) a convention about the conduct of organized violence generally cannot survive or function very effectively as a unilateral commitment--or so it would seem at first blush. In the context of modern IHL, however, this analogy is too simple and proves misleading, in part for the reason already suggested: informal conventions, which cannot be understood as bilateral or contractual in any straightforward sense, underwrite the formal conventions that prescribe the bulk of the positive law of war. These two meanings of convention, as well as their relationship to the modern war convention, broadly conceived, should inform any effort to adapt the law of war to contemporary technological and geopolitical circumstances--a periodic ritual that has followed major wars and crises since the advent of modern IHL in the nineteenth century.

Since the attacks of September 1 l, 200 l, a fierce debate has raged over whether it is accurate--or prudent (a distinct question)--to treat the global struggle against modern transnational terrorist networks typified by al-Qaeda within the legal rubric of war or, by contrast, whether that struggle must--or should--be treated exclusively within the rubric of criminal law) (16) Yet the distinction between terrorism as crime and terrorism as war is not ultimately qualitative. It is, like the question of war itself, "something people decide."(17) War has no Platonic form. To suggest that as a matter of international law, a terrorist network by definition cannot be a party to an armed conflict in the twenty-first century (18) strikes me as both inaccurate and anachronistic, (19) although it would be equally implausible and ill-advised to (20) begin treating all or even most acts of terrorism within the rubric of war.

That is one reason why the phrase "global war on terrorism" is so unfortunate (21): it crudely lumps together diverse phenomena within a single legal framework, obscures relevant differences, and mistakenly implies that the military instrument should be the primary strategy to address the threats posed by modern transnational terrorist networks typified by al-Qaeda. (22) We will surely lose the global war on terrorism if literal war becomes its strategic centerpiece; transnational cooperation in intelligence, financial controls, law enforcement, diplomacy, and ideological strategies will be indispensable to any ultimate "victory." (23) In the final analysis, however, defining the proper characterization of and response to diverse kinds and degrees of terrorism calls for policy judgments. While the use of force, as well as its conventions, has been abused recently, the military instrument, too, has its place in addressing the threat of transnational terrorism. IHL must acknowledge this reality and adapt to it (24)

On January 25, 2002, Alberto R. Gonzales, then counsel to the president, wrote that "the war...

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