Complexity in the Law of War

Abstract

Complexity in international law can be particularly problematic for the law of war, as unambiguous and realistic rules best serve the commanders and soldiers in the field to whom its commands are principally directed. Key provisions of the law of war have become difficult to interpret, frequently undermined by an inability to find consensus on the meaning of important provisions. It has become lawyers' law - an interesting body subject to creative legal argument, focused on questions that affect the well-being of countless individuals, but often difficult to implement by commanders in the field without legal advice. This is not to say that all rules of humanitarian law are complex and designed for lawyers. Yet as one looks across the range of rules that make up humanitarian law, density, technicality, differentiation and indeterminacy, features I borrow from Peter Schuck's assessment of complexity in the American legal system, are not uncommon.

In what specific senses has the law of war become complex, if indeed it has? One might ask as well, has it always been complex? What are the costs of that complexity, and what solutions might be adopted to limit the complexity and reduce those costs? In this chapter, following an exceptionally brief overview of the development of the law of armed conflict, I explore the complexity problem of humanitarian law. I focus on three particular areas - the definition of a military objective, discrimination between civilian and military objects and the problem of proportionality, and combatant status - in which the rules are famously difficult to interpret or apply and subject to substantial politicization. I conclude with some areas for research and policy that might counter IHL's complexity and improve implementation of the basic principles that these rules reflect. I propose to pose questions rather than provide definitive answers, to suggest consequences, and to identify ways to avoid the costs of complexity.

Keywords: law of war,international humanitarian law,law of armed conflict,public international law

JEL Classification: K33