Indeterminacy in the Law of War: The Need for an International Advisory Regime
74 Pages Posted: 8 Jan 2018 Last revised: 19 Jan 2018
Date Written: January 8, 2018
Indeterminacy in the law of war exacts a severe humanitarian toll, and it is not likely to be reduced by the conclusion of additional treaties. The present article argues that the adverse consequences of this indeterminacy may be mitigated through a U.N. Security Council action establishing an international advisory regime and using the broad powers of the Security Council to provide incentives for states to subscribe to this regime voluntarily. States subscribing to the advisory regime (“operating states”) would undertake to follow the interpretation of the law of war laid out by international legal advisors.
The advisory regime would represent a bargain between the Security Council and operating states, which would grant protection for states against the costs that typically attach to non-compliance with the law of war, to the extent that the state followed the legal guidance provided by the international advisors. This article demonstrates that the powers of the Security Council under the U.N. Charter accommodate such a bargain.
The desirability of the proposed advisory regime from a humanitarian perspective, and its appeal for states, depend on the interpretive approach to the law of war that would guide the international advisors. This article identifies an interpretive approach to the law of war that would make the proposed advisory regime the best bargain from a humanitarian perspective that is politically feasible. Such an interpretive approach marks the farthest a state would be willing to stray from the most permissive interpretive approach to the law of war made possible by the indeterminacy of the law to secure the benefits that the advisory regime offers. Use of such an interpretive approach would be secured through the selection of international advisors, tailored to ensure that they are inclined to embrace the desired interpretive approach.
Keywords: Law of War, Humanitarian Law, International Humanitarian Law, Security Council, Military Legal Advisors, Indeterminacy in the Law, United Nations, International Criminal Law
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