Crisis in the laws of war? Beyond compliance and effectiveness

Abstract

How can we tell what state the laws of war are in today, and whether they face exceptional pressures? Standard accounts of the condition of this body of law focus on problems of compliance and effectiveness. In particular, there is a dominant international legal diagnosis that most non-compliance is accounted for by the prevalence of non-state belligerents in irregular or asymmetric conflicts. We propose that any such diagnosis is partial at best. A focus on compliance and effectiveness tells us nothing about the reasons for actor behaviour, or about its impact on the regime. We advance a different conceptual framework, exploring the complex connections between compliance, effectiveness and legitimacy. We propose an alternative diagnostic model that places legitimacy at the heart of the analysis, treating it as causal, not simply symptomatic. This highlights when violations result in legitimacy costs for the individual actor, as opposed to reaching a tipping point when violations cumulatively impose legitimacy costs on the regime itself. We argue for the need to move beyond discussions framed by compliance and effectiveness, and towards the forms, reasons and reception of non-compliant behaviour, as this provides a truly social measure of the state of the law. In order to illustrate this, we examine three distinct types of challengers — Islamic State of Iraq and the Levant, the US and Russia — and present them as, respectively, revisionist, rejectionist and denialist threats to the regime. Unusually, the laws of war today face challenges on all three fronts simultaneously.

Legal Framework of Right of Self Defense in Cyber Warfare: Application through Laws of Armed Conflict

“…As it has been stated that Cyber Warfare is a new kind of warfare and is considered a future threat to the world. Which is not addressed by any existing legal framework and there is a need for further interpretation in the present body of law (IHL) (Kaempf, & Tannock, 2018). So, in this article, the Cyber Warfare theory is related to my study which will be used to critique the contemporary apparatus of IHL as time is changing, and with the passage of time, the concept of war has also changed in the international domain.…”

Why norms rarely die

“…It reflects Kratochwil and Ruggie’s early insight that norms are counterfactually valid and norm violations do not speak for themselves (Kratochwil and Ruggie, 1986). Thus, non-compliance, as Clark et al argue, is not “a straightforward, empirical fact, readily discernable to outside observers, and sharply distinguishable from instances of non-compliance” (Clark et al, 2017: 6). They argue that “an analysis of the types of non-compliance, what forms they take, the reasons stated for them and how they are socially perceived” (Clark et al, 2017: 7) is thus required.…”

“…Thus, non-compliance, as Clark et al argue, is not “a straightforward, empirical fact, readily discernable to outside observers, and sharply distinguishable from instances of non-compliance” (Clark et al, 2017: 6). They argue that “an analysis of the types of non-compliance, what forms they take, the reasons stated for them and how they are socially perceived” (Clark et al, 2017: 7) is thus required. Determining the extent to which an action violates a given norm depends crucially on the discourse surrounding that action.…”

What’s in a name? Contestation and backlash against international norms and institutions

“…Norm research has struggled hard to leave behind this implicitly progressive perspective on norms. It has turned its attention towards the contestation of norms and their potential erosion at a domestic level (Heller et al, 2012; McKeown, 2009; Rosert and Schirmbeck, 2007; Wiener, 2004, 2007, 2014) or an international level (Clark et al, 2017; Deibert and Crete-Nishihata, 2012; Gutterman and Lohaus, 2018; Panke and Petersohn, 2012, 2016). Nonetheless, most of these studies still suffer from the same bias as did early norm research.…”

“…For Wiener (2010: 203), contestation has a positive connotation as it is the condition for a shared understanding over meanings of norms which can generate norm legitimacy. Thus, contestation can also be a strengthening, not only a destabilising force (also Clark et al, 2017: 3; Wiener, 2007: 56, 2010: 203). The imminent question then is when does contestation equal a form of normative regression, taking back normative progress and when is it a normative force bringing about normative change and how do we empirically distinguish between the two?…”