Can international law keep up with organized violence?

Contributors: Gabby Blum LL.M. ’01 S.J.D. ’03 and Naz Modirzadeh ’02

Gabriella Blum LL.M. ’01 S.J.D. ’03 is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School and the faculty director of HLS’s Program on International Law and Armed Conflict (PILAC). Prior to joining HLS in the fall of 2005, Blum served as a senior legal advisor in the International Law Department of the Military Advocate General’s Corps in the Israel Defense Forces, and as a strategy advisor to the Israeli National Security Council. Naz K. Modirzadeh ’02 is a professor of practice at Harvard Law School and the founding director of PILAC.

“We believe that international law remains the most viable shared vocabulary for developing unifying norms to regulate the use of force and limit the effects of armed conflict.”

The tragic events of 9/11 affected all of us in profound and personal ways. As students and teachers of international law, they also affected our professional lives. Committed to the notion that international law can play a role in shaping conduct, including in war, the attacks of 9/11 — and the ensuing violence and warfare — have forced us to face the weaknesses of our current legal regimes and address the challenges that they must be able to withstand

Today, many wonder whether international law’s effort to regulate war can keep up with the organized violence affecting communities around the world. We see a number of enduring dilemmas:

• The blurring of the line between policing and warfare, and the relationship between the two. To what extent should the effort to confront terrorism be framed as an armed conflict or a global policing effort? This question, raised in the days after 9/11, continues to evade a consensus response. It affects, ultimately, not only how we think about war but how we think about policing, too.
• The dangers of everlasting war. International law does not provide clear guidance on how armed conflicts end. Nor does it set down well-defined parameters for when states can no longer justify invoking the exceptional powers of wartime. As the longest war in modern American history stretches further into its second decade, we risk those exceptional powers becoming the norm.
• Asymmetric warfare. While there has never been a perfectly symmetrical war, many have argued that international law was drafted primarily to address states wielding professional military forces. The September 11th attacks raised fundamental questions about the durability of that framework. As the modern battlefield hosts an increasing array of actors, and witnesses a strange mix of high-tech and low-tech weapons, questions abound with regard to law’s role, even in aspiration, in protecting fairness, equality, individual rights or states’ interests.

Fifteen years after the attacks, hundreds of thousands of people are caught up in the devastation of warfare. In many ways, international law has failed to live up to its protective promise. Yet, we believe that it remains the most viable shared vocabulary for developing unifying norms to regulate the use of force and limit the effects of armed conflict.