War Stories and the ‘Legal Geography’ of WarPosted: March 22, 2011
This weekend I attended (and live-tweeted) “Law and War: An International Humanitarian Law Workshop,” a two-day training for law and graduate students. It was held at the University of Virginia School of Law and co-sponsored by the ICRC, the American Red Cross, and the U.S. Army’s JAG School.
Among the highlights was Kenneth Anderson‘s presentation on the use of drones and targeted killing as part of the allied counterinsurgency in Afghanistan and Pakistan. Anderson raised some interesting conceptual issues about contemporary warfare: Does war have boundaries? When an armed conflict moves from one location to another, which laws of war govern? Is there, in Anderson’s words, a “legal geography” of war?
The law of armed conflict (LOAC) is based upon classification of conflicts, starting with the distinction between international (state-on-state) and non-international (all other) armed conflicts. Civilian protections and combatant privilege don’t kick in until a conflict has met the threshold for either category, and the rules differ substantially between the categories. Consequently, location and intensity of fighting as well as identity of the participants are key to a LOAC analysis.
A common view, according to Anderson, is that armed conflict is located wherever its participants are. If an armed conflict authorized to take place in Afghanistan spreads to Pakistan, say, through the use of U.S. unmanned aircraft (drones), it is unclear which, or whether, LOAC rules apply. And if the U.S. were to, say, have the CIA rather than uniformed armed forces control those drones, it is unclear whether the actions even fall under the umbrella of LOAC. If LOAC does not apply, then what law governs? Is the U.S. operating in a legal void?
This is one example of how modern warfare, with its fuzzy geographic boundaries and blurred distinctions between soldiers and civilians, confounds LOAC.
My interest, as a student of literature, lies in how we conceptualize and narrate war when the traditional elements of a war narrative no longer exist. Where is war set? What is a front line? Who is a combatant and who is a civilian? To the extent that LOAC follows entrenched understandings of war, sovereignty, and combatant status, it is a window into the structure of the war narrative. When war as the law describes it ceases to resemble war on the ground, interesting things happen to the stories we tell about war. More to come on this.