The Individualization of War: From War to Policing in the Regulation of Armed Conflicts
Harvard Law School
March 10, 2013
Law and War, Sarat, Douglas, Umphrey eds., Stanford University Press, 2013
In a celebrated humanitarian move, wartime regulation has evolved from a predominantly state-oriented set of obligations — which viewed war as an inter-collective effort — to a more individual-focused regime. In fact, the regulation of armed conflict increasingly resembles, at least in aspiration, the regulation of police activities, in which it is the welfare of individuals, rather than the collective interest of the state, that takes center stage.
I demonstrate that many contemporary debates over the laws of war, including the distinction between the jus ad bellum and jus in bello, proportionality, detention of combatants, and reparations for victims implicate exactly the tension between collectivism and individualism in the regulation of armed conflict.
I further argue that notwithstanding the humanitarian benefits of the move to greater concern over the human rights of those affected by war, reimagining war as a policing operation harbors real dangers that must not be overlooked. These include imagining more of policing as war, inhibiting military action for the protection of others, and inviting more aggressive acts “short of war” against targets around the world.
Number of Pages in PDF File: 36
Keywords: war, international humanitarian law, laws of war, police, proportionality, jus in bello, jus ad bellum, reparations, sovereignty, collectivism, cosmpolitanism, individualism, transnational policing, terrorism, counterterrorism, humanizationAccepted Paper Series
Date posted: March 11, 2013 ; Last revised: October 13, 2013
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