Accounting for the Complexity of the Law Applicable to Modern Armed Conflicts

Abstract

It is verging on the trivial to observe that the law applying to modern armed conflicts is full of complexities – some old, many new. Such complexities are, after all, the bread and butter of legal academics, who have produced mountains of books and articles on the various relevant topics. But the extent of these complexities can be overstated. While legal academics debate the finer points of the interaction between international humanitarian law (IHL) and international human rights law (IHRL), in the vast majority of today’s armed conflicts the law is reasonably practical, clear and fit for purpose. It might not be complied with, but that is not because of its supposed complexity or lack of clarity. If for example, the parties to contemporary armed conflicts with the highest cost in human lives and property (e.g., in Syria or Yemen) observed only the bare fundamentals of the principle of distinction, the world would be spared much suffering. Their noncompliance has little to do with the law’s complexity.

But complexity is nonetheless a major feature of a particular subset of modern armed conflicts, especially those involving foreign intervention by Western powers. The purpose of this paper is not to provide arguments or solutions concerning the extant controversies, but to clarify our understanding of how complexity works, where it comes from and how it is managed. To do so, this chapter will first develop two themes: the multiple causes of complexity and the decentralized system for managing this complexity. These themes, which lead to a gradual process of mainstreaming and normalization that is both legal and political, will then be explored in more detail in the context of the law on the use of force or jus ad bellum, IHL, and IHRL.

Keywords: complexity, underdeterminacy, indeterminacy, use of force, armed conflict