By Deborah Pearlstein
Seventeen years into the United States’ engagement in what America has controversially understood as a global, non-international armed conflict against a shifting set of terrorist groups, a growing array of scholars has called for a reassessment of the significance of the “armed conflict” classification under international humanitarian law (IHL). The existence of an “armed conflict” has long been understood as a proxy on/off switch of inescapable importance. When an “armed conflict” exists, lethal targeting—without regard to particular self-defensive need or immediacy of threat—is permitted as a first resort. When an “armed conflict” does not exist, it is not. Challenging the wisdom of this categorical switch, critics raise a range of concerns: the line dividing which circumstances count as “armed conflict” and which do not is no longer clear or stable enough to provide meaningful guidance; current definitions may compromise humanitarian interests, prospects for criminal justice or both; most important, the “armed conflict” classification no longer reflects current moral, political, or strategic sensibilities about the role of lethal force in an age in which global threats have changed. This Essay contends that while the criticisms are important, they fail on their own terms to justify the abandonment of “armed conflict” as a proxy determinant of first-resort killing. More fundamentally, while classification critics recognize acutely the many changes in the nature of conflict since World War II, they attend far less to systemic changes in the development of international law during that time. Taking the “armed conflict” classification debate as a case study, this Essay highlights how critiques of international law’s substance continue to embrace increasingly outmoded, World War-II era assumptions about the inadequacy of the international legal system to address problems inherent in all law: interpretive uncertainty, law violation, and social change.
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