The legal battle to define the law on transnational asymmetric warfare
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Duke journal of comparative and international law, Vol. 20, no. 3, Spring 2010, p. 339-359
The persistence and prevalence of asymmetric transnational armed conflicts have given rise to two rival claims. Governments involved in such conflicts emphasize their added risks in fighting irregular combatants who abuse legal protections. These governments seek to interpret the law in ways that dilute their responsibilities. At the same time, however, various third parties, including national and international courts, commissions of inquiry, and global civil society, converge in an entirely different approach. Informed by the expectation that with more power comes more responsibility, these third parties expect the more powerful side to gradually ensure enemy civilians’ lives (not only to respect their lives). This expectation leads to demands for modification of the traditional law in the context of transnational asymmetric warfare in at least three areas: first, the recognition of an obligation to consider alternatives to military action; second, if there were no available alternatives, the army would be expected to invest significant resources to minimize harm to civilians; and finally, following an attack, the army would be obliged to conduct a transparent and accountable investigation to reexamine its own actions. Third parties may also insist on limiting the discretion of the “reasonable military commander.” This essay seeks to understand and delineate the fundamental cleavage between the two visions.