Indeterminacy in the law of war : the need for an international advisory regime
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Brooklyn Journal of International Law, Vol. 43, issue 1, 2017, p. 1-74
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 this may be mitigated through a U.N. Security Council action establishing an international advisory regime. 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. Finally, 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.