International Law: Where Have we Been; Where are we Going?

Abstract:     
The need to operationalize international law from the perspective of the commander is, I suggest, an absolutely critical requirement of academics, policy-makers, human rights organizations, and military commanders (junior and senior alike). Otherwise, the commander will be stuck with yesterday’s rules in today's - and tomorrow's - conflict. The inherent unsuitability of these rules to the conflict will both make public international law increasingly irrelevant from the perspective of the single most important practitioners - the commanders - and will do a fundamental disservice to those who most critically need its protection - innocent civilians. The innocent civilian is entitled to international humanitarian law protections. That is obvious. If the individual is a combatant and therefore meets criteria to be defined as legitimate target then, all bets are off, with the caveat that the soldier must act when dealing with this combatant in accordance with the critical principles of international law: proportionality, alternatives, military necessity, and collateral damage. But what is the solider to do when the scenario is in the hazy, foggy middle that defies easy categorization and classification? The extremes are easy, the middle is complicated. Classic international law and international humanitarian principles are clear with respect to the former; I suggest they are unhelpful regarding the latter. Unfortunately, operational counterterrorism is most complicated in the haze that is all but inevitable when facts are unclear, how is the soldier to act? Relying on time-honored principles developed in different operational contexts may not provide sufficient guidelines.

Keywords: International law, operational international law, morality in armed conflict, proportionality, collateral damage, innocent civilians, military necessity, alternatives, armed conflict, operational counterterrorism, legitimate targets, combatants

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