Chapter

Development of new rules or application of more than one legal regime ?

Dieter Fleck

Contemporary challenges to the laws of war : essays in honour of professor Peter Rowe

Cambridge : Cambridge University Press, 2014

p. 51-70

English

The question whether the laws of war are ‘fit for purpose’ brings the need to first consider that purpose: is it broadly peace as a common goal in our ever imperfect world? Is it litigating military necessities? Is it protecting the fate of the victims? Is it balancing the rules of fair play in situations of danger and combat stress? Should there be more than one purpose : could the laws of war then be characterised as a multi-purpose set of rules? Is this particular branch more than a simple set of rules, but rather a process that might serve such various purposes? Open for dynamic development, but nevertheless serving as an appropriate tool for authoritative decision-making ‘by the use of analogy, by reference to context, by analysis of the alternative consequences’? Any serious assessment will be influenced by a number of different elements : the facts determinin the application of the laws of war and the problem of acceptance of a state of armed conflict, the relationship between that legal branch and other disciplines that continue to be relevant during armed conflict; the effect of armed conflict on treaties; the role of national law in military operations; and the interaction of various national contingents, which may be bound to different obligations, but are tasked to cooperate neverthelss.

• Full text : restricted access (ICRC)

• Contemporary challenges to the laws of war : essays in honour of professor Peter Rowe / ed. by Caroline Harvey, James Summers and Nigel D. White