December 2007 Vol. 106 No. 3 THE REVIEW

Prologue to a Voluntarist War Convention

Robert D. Sloane

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.

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