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The Vanishing Law of War: Reflections on Law and War in the 21st Century

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Abstract

Examines IHL in modern conflict and argues that counterinsurgency, counterrorism and other forms of warfare are creating a normative environment for government forces that is more restrictive than required by IHL.

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... The former reading, largely communitarian, essentially holds that, as noted in US Army and Marine Corps doctrine, by the 'perceptions and the support of the people. 32 In other words, the logic is that through humanitarian considerations, military operations can be enhanced. 33 This reading of Jus in Bello conforms most to communitarian ethics. ...
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This article sought to encourage the adoption of novel ethical approaches at the interstice between political and international relations (IR) theory, and character-based approaches in particular. It was argued that though the Fourth Debate has encouraged debate about the ethics of IR theory, surprisingly, character-based approaches have not been discussed, with communitarian and cosmopolitan performative ethics maintaining a conceptual hegemony. The concept of Jus in Bello was nominated for deconstruction since it has traditionally been understood cosmopolitan or communitarian manner based on performative ethic. An Aristotelian vocabulary was adopted in order to deconstruct the concept of Jus in Bello, with Jonathan Haidt's moral psychology, Lawrence Kohlberg's moral development psychology, Immanuel Kant's ethics, and social contract theory all being used to supplement the nominated Aristotelian reading of Jus in Bello. It was concluded that an Aristotelian reading of Jus in Bello is a viable alternative to and hence an Aristotelian vocabulary could be adopted when attempting to understand certain concepts and phenomena at the interstice between political and IR theory.
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The dissertation deals with the questions surrounding the legal, ethical and strategic aspects of armed drones in warfare. This is a vast and complex field, however, one where there remains more conflict and debate than actual consensus.One of the many themes addressed during the course of this research was an examination of the evolution of modern asymmetric transnational armed conflict. It is the opinion of the author that this phenomenon represents a “grey-zone”; an entirely new paradigm of warfare. International terrorism has not been dealt with in a cohesive fashion. Any international prosecution of terrorism which has been conducted has been either “sectoral” adopting a piecemeal typological approach or has been carried out at the domestic level.A novel approach to the problem, of subnational actors with transnational reach, was proposed, by attributing certain groups with a new legal personality, that of “Stateless International Entities”, or “SIEs”. Those groups who possess, for all intents and purposes, the same attributes as those of States, could then be judged for their behavior before an international tribunal. Other important topics addressed in this research include an examination of important case law, targeted killing, autonomy, preemption versus prevention, imminence versus intent, the find, fix and finish paradigm, the impact of the media, and the role of the CIA, and finally, the flawed reasoning which adopts technology as a form of strategy.
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Despite the high density and sheer volume of the Law of Armed Conflict (LOAC), there is considerable indeterminacy within its structure. Understanding the interpretive space generated through the rules/standards dichotomy as well as through the policy/law interface resident within this indeterminacy permits greater appreciation of how LOAC is used to advance strategic goals. The purpose of this article is to examine various interpretive approaches to LOAC and to reveal the significance of such approaches to questions of both legal validity and broader considerations of legitimacy. Positivism remains the dominant interpretive idiom, but it contains vulnerabilities in its assumptions, not least is the wide malleability of language. In the current operating environment, within the counter-insurgency (COIN) context in particular, it is becoming evident that standard canons of LOAC interpretation may not be sufficient to achieve the desired military and political goals sought. Indeed recent COIN guidance concerning interpretation of LOAC reflects an approach reminiscent of the US legal realist style of the early to mid 20th century. This results in a more overt demand for greater social and political appreciation of the use of law to modulate violence.
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