Making and Shaping the Law of Armed Conflict: An Introduction
Almost every legal question involves aspects of law-making and shaping, be it identification of a rule, interpretation of that rule, or determination of the rule’s scope of application. Disputes over the substance of the law are not infrequently also disputes over the making or shaping of the law. It thus seemed fitting to choose the topic of “Making and Shaping the Law of Armed Conflict” for the tenth volume of the Lieber Institute’s Lieber Studies Series.
The phrase “making and shaping” is used deliberately. The terms are intended to capture the full spectrum of activities, from creation of the law through to shaping the discourse, and from interpretation of the law through to acting as a catalyst for legal developments. The language of “making and shaping” also avoids some of the constraints or intellectual baggage that comes with terms of art such as “sources” (and its association with Article 38 of the Statute of the International Court of Justice) or “development” (and its narrative of progress).
Consider the regulation of non-international armed conflicts. Given the paucity of conventional law, considerable attention has been paid to the state of customary international law. This in turn has given rise to debates over the methodology for identifying rules of customary international humanitarian law. Or take the debates surrounding the meaning of the phrase in Article 51(3) of Additional Protocol I: “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.” This is a question of treaty interpretation and raises, among other considerations, the weight to be given to interpretations of the law by the International Committee of the Red Cross (ICRC). At a structural level, there are also questions as to what constitutes a gap in the law as opposed to deliberate silence and what weight should be given to attempts to fill gaps in the law, such as through expert manuals.
A related set of issues, already apparent from the previous paragraph, concerns actors. A range of actors is involved in the making and shaping of the law of armed conflict. As the principal actors in the international community, States play the dominant role. A host of other well-known actors also play a role, including, but not limited to, the ICRC, international courts and tribunals, domestic courts, and expert groups. In addition to these well-known actors, other entities, such as commissions of inquiry and legal trainers, also engage with international humanitarian law (IHL; used interchangeably with law of armed conflict). The role they play in making and shaping the law, if any, is also deserving of consideration. Cutting across these actors are regional and other alignments, causing both convergence and divergence of views, and exhorting disparate levels of influence.
The law of armed conflict does not exist in isolation. Today, it is well recognized that there is a close, if sometimes difficult, relationship between IHL and international human rights law and an even closer relationship between IHL and international criminal law. These relationships have given rise to international human rights law and international criminal law mechanisms interpreting and applying IHL. The impact that these mechanisms and their interpretations have on the development of IHL also warrants consideration.
Themes
Authors of chapters were deliberately not asked to draft their chapters around a single, unifying theme. Instead, they were left to write freely on relatively broad topics with the intention of seeing what unifying themes, if any, would arise. A number of themes emerged.
The first theme is the role of States in making the law and the need to disaggregate the notion of the State. Different branches of the State (legislature, executive, judiciary) contribute to the making of the law in different ways. Furthermore, it is not just top-level officials who contribute to law-making and shaping; the everyday official also plays a role. It is also important to consider which States are included or (consciously or subconsciously) excluded in references to “States.” When it is said that “States say this” or “State practice is that,” what is actually the case is that some States say this or some State practice is that. The States in question tend to be mainly Western States, with the practices of States from the Global South often overlooked or ignored.
A second theme is the role of actors other than States in shaping the law. A number of chapters discuss the actors other than States which play an influential role in shaping the law in a myriad of ways. These include the ICRC, expert groups, IHL trainers, international human rights law mechanisms, international criminal law mechanisms, commissions of inquiry, and armed groups. A number of factors make these entities more or less influential in shaping the law, including, importantly, whether there is a gap in the law, a recognised expertise of the entity, and the reception of the entity’s outputs by States and other actors.
Third, the making and shaping of the law is dynamic and interactive, not static or siloed. There is interaction between actors, between sources, and between bodies of law, as well as between actors and sources, and between actors and bodies of law.
Fourth, norms have multiple and parallel lives. There is the public life of a norm as well as an invisible life outside of the public gaze. Insofar as the public life is concerned, norms exist on the books and in the field. They circulate between the pedagogical, kinetic, and intellectual realms. Norms might also operate differently in different spaces.
Forum
The volume contains the excellent work of fourteen contributing authors. As a preview, Articles of War will publish a series of posts adapted from chapters in the book.
Katherine Fortin discusses the transformative force that is customary international law. She explores understandings of customary international law over the years and engages with how custom might develop in the future.
Drawing on his leading roles in the drafting of expert manuals, Michael N. Schmitt provides an insider’s account of expert manuals. He explores how manuals can influence States’ understandings of international law and identifies factors which affect the influence of expert manuals.
Martha Bradley considers the role of international criminal tribunals in the development of the law of armed conflict. She identifies instances of positive development on the part of international criminal tribunals, focusing on the classification of armed conflicts, and, in her chapter, also explores difficulties with certain judicial decisions. She cautions against judicial activism and reminds us of the proper relationship between IHL and international criminal law.
Gus Waschefort explores the role of regionalism in the development of the law of armed conflict. He focuses on the inclusion of wars of national liberation in Article 1(4) of Additional Protocol I and considers the response of the West thereto. Challenging the orthodox view, he casts doubt on the purported “super universality” of the law and calls for more inclusive processes in the development of the law.
The role of domestic courts in the development of international law is taken up by Yahli Shereshevsky. He identifies and analyses an issue which has largely been unaddressed in the scholarship on the topic, namely, the lack of IHL expertise on the part of domestic judges. He explores what this means for the development of IHL by domestic courts.
Rebecca Sutton asks us to broaden our gaze beyond those who are traditionally considered to make and shape IHL and beyond the settings in which the law is traditionally seen as being made and shaped. She explores different realms—the pedagogical, kinetic, and intellectual—and demonstrates that “[a]s differently situated actors enact, engage with, and contest IHL rules, they individually and collectively forge IHL’s (multiple) meaning(s)” (p. 300).
To conclude the forum, Sean Watts draws our attention to the importance of “unmaking” the law. He identifies and unpacks different types of unmaking, such as repeal, revocation, and abandonment and makes the case for paying greater attention to unmaking the law and adopting a more rigorous approach to issues of unmaking.
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Sandesh Sivakumaran is Professor of International Law at the University of Cambridge, Deputy Director of the Lauterpacht Centre for International Law, and Fellow of St Edmund’s College, Cambridge.
Christian R. Burne is a Captain in the United States Army Reserve and a Law Clerk for the United States District Court for the Eastern District of Pennsylvania.
Photo credit: Pexels, OUP
