Lieblich: The Law of Warfare: 1989-2022

Eliav Lieblich (Tel Aviv Univ. - Law) has posted The Law of Warfare: 1989-2022. Here's the abstract:

This chapter presents a historical account of international humanitarian law (IHL) in the post-Cold War era. It does so by focusing on key tensions that shed light on the dynamics of IHL as a field of contestation among competing groups or interpretive communities.

The chapter begins with a representative controversy: that surrounding the International Committee of the Red Cross's ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities’ of 2009. As a personification of this controversy, the chapter focuses on the critique levelled against the Guidance by W. Hays Parks – one of the most prominent military lawyers of the time. The chapter then expands and generalizes from Parks's critique, to demonstrate both the types of issues that preoccupied the profession, as well as the dynamics of the legal discourse surrounding them.

The chapter demonstrates that the era's legal struggles were, to a large extent, driven by anxiety relating to the ‘the loss of monopoly’ of military lawyers over the laws of war, and the advent of competing forms of expertise and normative frameworks. It does so by expanding from three key tensions reflected in Parks's critique: regarding who makes the law, who can be killed in war, and who should bear the risks emanating from IHL's 'humanization'.

Ultimately, the chapter demonstrates that while the loss of monopoly mentioned above is undisputed, it is unclear whether this development ushered in a more protective law, because of intertwining relations of contestation, concession, accommodation and legitimation.