Privileging Combat? Contemporary Conflict and the Legal Construction of War


Recent high-profile debates about “unlawful” or “unprivileged” combatants call for fundamentally rethinking the role of international law in relation to war. In the conventional view, the laws of war, both jus ad bellum and jus in bello, primarily seek to oppose or restrain the practice of organized violence. This Article, focusing on the legal doctrines crucial to the combatants’ privilege, argues for three contrary propositions. First, law’s role in relation to war is primarily not one of opposition but of construction–the facilitation of war through the establishment of a separate legal sphere immunizing some organized violence from normal legal sanction and, inevitably, privileging certain forms of violence at the expense of others. Secondly, the forms of this legal construction of war are highly contingent, the subject of historical variation and political contestation. Thirdly, the legal construction of war as a separate sphere has been considerably destabilized in our time, in particular by the strategic instrumentalization of the legal categories by state and non-state participants in violence. Both the “war on terror” and the fourteen year conflict with Iraq provide paradigmatic instances of these phenomena. This Article analyzes the legal construction of war in relation to two broad questions: “what is war?” and “who is a warrior?” It also examines current conflicts in historical perspective, drawing on past experience from the occupation and colonial contexts. In the Epilogue, it applies its analysis to some aspects of recent Supreme Court decisions on the “war on terror.”