Small Wars Journal

Rule of Law in the Gray Zone

Rule of Law in the Gray Zone by Rosa Brooks - Modern War Institute

When we make law, we create categories; when we interpret law, we assign actions, actors, and events to the categories we have created. For law to be effective, we need reasonable clarity and consensus about the contents and value of our categories: the concept of “theft,” for instance, makes sense only if there is some shared understanding of the concepts of “property” and “ownership.”

This is equally true of the legal framework governing conflict and coercion. Both international and US law take as a basic premise the notion that it is possible, important, and reasonably straightforward to distinguish between war and peace, emergencies and normality, foreign and domestic, public and private, and so on. We have elaborate rules governing the conduct of “parties” to “armed conflicts”; we subdivide people into “combatants” and “civilians”; we speak of “force,” “self-defense,” “armed attacks,” and actions falling short of armed attacks; we distinguish between areas with “active hostilities” and areas without such hostilities, between “internal,” “international,” and “noninternational” armed conflicts, and between civilians who are “directly participating” in hostilities and those who are not…

Read on.