When, on 17 December 2010, Mohamed Bouazizi, a 26-year old, set himself on fire as a desperate act of protest in Sidi Bouzid, Tunisia, he did not know that he was going to spark a historical movement of political revolutions that would sweep through the nations bordering the Mediterranean Sea. The ‘Arab Spring’, which in the spring of 2011 touched Tunisia, Egypt, Bahrain, Libya, and most recently Syria, among other countries, has so far led to mixed results in terms of regime change. Whereas in Tunisia and Egypt, autocratic leaders relinquished power relatively quickly and with limited bloodshed, in Libya, Bahrain, Yemen and Syria protests were, and still are in the latter three of these countries, harshly repressed over the course of several weeks and months leading to thousands of people being killed or wounded. Of course, each of these revolutions has different political, social, and historical backgrounds. It is almost trite to note that power structures in Egypt or Libya are not the same, nor are, for example, the characteristics of society in Syria or Bahrain. This helps to explain the difference between the types of revolution that have taken place. Nevertheless the common aspiration that has pushed huge numbers of ordinary citizens to risk their lives, namely, to achieve freedom by bringing to an end longstanding despotic governments, unites all these cases. The courage of those who have risked all to secure change and those of many others who are still confronting death and torture for exercising their right to peaceful protest, has attracted widespread admiration.

The observation that international humanitarian law (IHL) does not need more rules, but rather better enforcement mechanisms has become somewhat of a universally accepted mantra, as well as a call for action. Indeed, the last quarter of a century has witnessed considerable progress in the strengthening of IHL enforcement procedures: new international criminal courts with jurisdiction over certain IHL issues have been established; universal and other forms of criminal jurisdiction have been exercised by a growing number of states during and in the aftermath of numerous armed conflicts; and military lawyering has been expanded in scope and deepened in reach in many national militaries. In addition, it has become widely-accepted that international human rights law (IHRL) continues to apply in situation of armed conflict, at least with regard to persons situated under the effective control of the relevant states. As a result, IHRL courts and committees have increasingly asserted their authority over armed conflicts.

The Israeli interception of a flotilla of civilian ships bound for Gaza in May of 2010 fueled ongoing questions about the content, efficacy, and adequacy of the law of armed conflict (LOAC). Debate focused quickly concerning fundamental substantive legal issues such as proportionality, humanitarian assistance, treatment during detention, and even the overall legal character of the hostile relationship between Israel and Hamas. Public reactions revealed, at once, misconceptions of and dissatisfaction with the legal regime applicable to the operation. Given the highly political context of Gaza itself and the longstanding Israeli naval blockade, it is unsurprising that the substantive legal gap between the Israeli Defense Forces and their critics remains wide. Publication of the legal analysis and conclusions of a commission of three Israeli jurists aided by international legal observers and consultants appears to have done little to quell dissent.

International humanitarian law (IHL), from both a historical and contemporary perspective, holds a unique position within the international legal order. This distinctiveness is central to the main theme of this article: to assess the role of IHL, or jus in bello, in contemporary theoretical debates on the international legal order. IHL's presence in the legal theory literature is sparse. A partial explanation for this is to be found in a number of its unique characteristics that contribute to IHL's absence from this debate. These include its exceptional status within war and law, its historical development, its early codification and, most importantly for this analysis, its treatment within international legal theory. In exploring these characteristics, this article seeks to further account for the near absence of IHL within current legal theory and to suggest that a more active engagement with IHL has the potential to enrich the debates on the future of the international legal order.

Unlike 171 other nations, the United States is not a party to Additional Protocol I to the Geneva Conventions of 1949 (hereinafter AP I). AP I complements and expands upon the 1949 Geneva Conventions. It is comprised of supplemental rules governing means and methods of warfare, combatant and prisoner of war status, treatment of detainees, and protections of civilians and civilian objects among other important matters within the law of armed conflict. The decision of the United States not to join AP I has resulted in what one prominent commentator describes as a “Great Schism” between the majority of nations bound by its provision and a “determined minority” who are not.

2011 will be remembered for two defining series of events of a global dimension, each of which prompted debate and disagreement among IHL experts: the Arab Spring and the killing of Osama bin Laden and other high ranking terrorist suspects.

In the aftermath of the events which took place in Egypt and Tunisia, riots against the autocratic regime of Colonel Gaddafi broke out on 15th February 2011. Two weeks later, the regime lost control of major parts of the country after violent clashes between pro- and anti-Gaddafi supporters which led to a refugee crisis in the vicinity of its borders with Tunisia and Egypt. On 26th February 2011, the United Nations Security Council [hereafter: the Council] unanimously adopted Security Council Resolution 1970 [hereafter: UNSCR 1970] in order to implement an arms embargo on Libya; in addition, the resolution required a travel ban be imposed on Gaddafi and senior regime members and called for their private assets to be frozen. In accordance with UNSCR1970, the European Union imposed an arms embargo on Libya that was broader in scope than that provided for in the resolution. Concerned by the deteriorating situation in Libya, the League of Arab States, as a regional organization, condemned Gaddafi and called on the UN to impose a No Fly Zone [hereafter: NFZ] over Libya to protect the civilian population. On 17th March 2011, the Council adopted UNSCR 1973. Acting under Chapter VII of the UN Charter, it authorized States to take ‘all necessary measures’ to protect civilians and civilian populated areas under threat of attack in Libya. It also decided to establish a ban on all flights in Libyan airspace in order to help protect civilians. Finally, it allowed States to inspect in their territory (including seaports and airports) and on the high seas, vessels and aircraft bound to or from Libya, if the State had information that provided reasonable grounds to believe that they carried prohibited items.

In July 2011, the European Court of Human Rights (ECtHR) handed down two long-awaited and momentous judgments involving the conduct of the United Kingdom's armed forces during the occupation and armed conflict in Iraq. In both cases, the Court found against the UK government. The first decision, in the Al-Skeini case, essentially clarified and revised the Court's position on the extraterritorial application of the European Convention on Human Rights (ECHR) and attracted the most attention. The second case, Al-Jedda, received less focus even though its legal and practical consequences are just as significant. The purpose of this note is to outline some of the ramifications of the Al-Jedda case that have not been picked up in other commentaries, in particular its implications for detention operations carried out by ECHR member states abroad. As will be argued, the Court's approach to and interpretation of international humanitarian law (IHL) do not comport with the spirit or letter of this body of rules.

The killing of Osama bin Laden in Pakistan in May 2011 and Anwar al-Aulaqi in Yemen in September 2011 both raise the question of when the killing of an identified individual posing a threat to a nation-state is lawful. Although it has not yet been forced to publicly defend either killing in any great detail, the Obama Administration has insisted on the legality of both operations by deploying an amalgam of legal and rhetorical arguments that explicitly or implicitly invoke multiple bodies of law. As an administration spokesperson stated in connection with the Bin Laden operation:

In recent years a gradual understanding has developed on the need to take a broader view of the concept of ‘protection’ during times of armed conflict. Whilst destruction and suffering caused directly by warring parties continues to be a matter of deep concern, focus has started to also turn to an examination of the indirect impact armed conflict has on civilian populations. In particular, the large number of deaths caused by disruption to medical and humanitarian assistance is gaining attention. The Harvard Burden of Disease Unit has recently called for more reliable data on the health effects of armed conflict. The Small Arms Survey of the Graduate Institute of International and Development Studies, Geneva, has stated that armed conflict is a major cause of ill health and mortality not just from obvious injuries and death on the battlefield but also due to factors such as loss of access to basic health care. They estimate that in contemporary conflicts there is a ratio of four indirect to one direct death due to armed conflict. The scale of the problem can be seen, for example, in the Democratic Republic of the Congo where it is estimated that 38,000 excess deaths per month are caused mostly by easily treatable diseases which go untreated due to insecurity arising from armed conflict. The conflict in Iraq has had similar effects; between 2003 and 2007, 18,000 of the country's 34,000 doctors fled and many other were killed, with a catastrophic impact on the health care system.

The invitation to join this symposium provides an opportunity for critically reviewing opinions I had expressed years ago, in the immediate aftermath of 9/11. Emphasizing the need for strict compliance with international humanitarian law, human rights law, national constitutional law and rules of due process, in order to convincingly meet the challenge terrorism poses to democratic societies, I had called for a culture of compliance in which incentives for faithful implementation of humanitarian law should be developed to make the expectation of reciprocity a realistic possibility rather than contemplating restraints of humanitarian protection and derogations of human rights. Developments went in a different direction: the world has witnessed an unlimited practice of operational detentions; habeas corpus was, and still is, denied in military operations; and prisoners have been tortured as part of deliberately planned activities. At the same time organized terrorist movements continue to plan and execute attacks while hiding among civilian populations; the number of suicide attacks has increased rather than decreased; and distinctive emblems protected under the Geneva Conventions are deliberately targeted by Taliban fighters.

One day shy of the tenth anniversary of the al Qaeda attacks on the World Trade Center in New York City and the Pentagon in Washington, D.C. (commonly and hereinafter referred to as “9/11”), Professor Mike Schmitt invited me to join distinguished scholars in a forum containing “reflective pieces regarding the international humanitarian law implications of 9/11 to mark the tenth anniversary of the attacks”. I accepted his invitation, honored to be included in such good company.

For those of my generation, the question always used to be, “Can you remember where you were when you heard of Kennedy's assassination?” I can, but that question has now been replaced by “Can you remember where you were when you heard about the Twin Towers?” Again I can. But such earth shattering events have different effects. Whilst the Kennedy assassination led to a plethora of conspiracy theories, books and films, it did not have any effect on the international legal structure. “9/11”, on the other hand did. Although for many, the key issue is the strain placed on the laws of armed conflict, or international humanitarian law, to me “9/11” has challenged the very framework of international law itself, revealing a schism that has been there for some decades but which has been masked by other more demanding issues. I talk about the interrelationship between the law of war and the law of peace. Where does peace stop and war start and do the legal boundaries correspond?

As DP O'Connell noted in a seminal 1970 article (‘International Law of Contemporary Naval Operations’) and in his equally seminal 1975 book The Influence of Law on Sea Power, maritime operations law is a constantly evolving discipline in both theory and practice—with law often lagging practice by a noticeable margin. One consequence of the (then) ‘Dreadnought era’ focus of much of the law of naval warfare was that ‘[I]f international law appears to the naval officer a tangle of uncertainties in which he is likely to be ensnared, the technology of naval warfare induces in the legal theorists perplexity and dismay’. However, for all of the sometimes haphazard and ‘catch-up’ nature of the relationship between law and practice in maritime operations, there are clearly a number of fundamental, normative, defining themes which have tended to play the dominant role in shaping and informing the evolution of maritime operations law over the last several decades (or, indeed, centuries). Pinpointing which themes come within this category is of course a matter for debate, but it would seem reasonably safe to assert that an indication as to their form and colour is evident in paradigmatic themes such as resource exploitation, maritime claims, technological advance, and freedom of navigation.

It is widely agreed that the United States’ armed conflict against al Qaida and its allies—if it is legally an armed conflict at all—does not fit neatly within contemporary jus as bellum and jus in bello (international humanitarian law, or IHL) regimes. The thinking goes that transnational conflicts with non-state terrorist groups and tactics do not correspond well to the categories comprising those regimes, and wide debate then proceeds about whether and how it is appropriate nevertheless to apply them.

In 2000 Theodor Meron published his landmark essay entitled The Humanization of Humanitarian Law. Meron demonstrated that there is a gradual convergence in protections between human rights law and international humanitarian law (IHL) developing, which is fueled by a common commitment to human dignity. He explained that the shifting nature of conflicts away from traditional international armed conflict to non-international armed conflict “necessitated both new norms and reinterpretation of existing norms”. “Calamitous events and atrocities” during these contemporary conflicts pushes new IHL rules towards human rights principles, he explained.

Has the way the law evolved since 9/11 been an unqualified good? Some might think so. Undoubtedly, there have been many positive developments in international law in general, and the international law of armed conflict (ILOAC) in specific. Certainly those disposed towards the peaceful resolution of disputes and the efficacy of international law are heartened by recent studies that show, rather counterintuitively, that violence, and especially interstate violence, is actually declining.