Sloane: Prologue to a Voluntarist War Convention

Robert D. Sloane (Boston Univ. - Law) has posted Prologue to a Voluntarist War Convention (Mich. L. Rev., forthcoming). Here's the abstract:

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

In particular, modern transnational terrorist networks, by contrast to the non-state actors of concern to IHL in the past (e.g., franc-tireurs, insurgents, national liberation movements), characteristically repudiate the conventional, “amoral” conception of non-combatant immunity - and the triad of core IHL principles: necessity, proportionality, and distinction - that follow from it. Furthermore, their diffuse, decentralized, network structure - by contrast to the hierarchical, linear structure of professional state armies and cognate “private armies” of past eras - makes them structurally ill suited to IHL compliance. It also renders the principal historical mechanisms by which state neutralized threats from non-state actors - deterrence and negotiation - frequently ineffective. Coupled with the increasing availability of catastrophic weapons on illicit markets, these features of modern transnational terrorist networks vastly complicate efforts to adapt and revise the inherited war convention to address contemporary circumstances - a periodic ritual that has followed major wars and crises since the advent of modern IHL in the nineteenth century.

For these reasons, IHL 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 non-state 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 IHL, IHL's synergy with international human rights law, and the manifest potential for abuse. I therefore conclude that, in the meantime, (i) any proposed modifications to IHL should be incremental, transparent, and tentative, subject to revision as the genuine scope of military necessity becomes clear; (ii) the burden of persuasion should be on those who urge such modifications; and (iii) insofar as existing law does not clearly govern, sound policy rationales nonetheless continue to commend adherence to the core precepts of the inherited conventions of war.