Introductory Remarks by Omar Shehabi

Welcome to the panel on the Temporal Limits of Armed Conflict, Indefinite NIACs, Forever Wars, and Prolonged Occupation. I am Omar Shahabi, and I am very happy to be moderating, in a minimalist fashion, a great panel today.

We are trying today to harmonize some very different interventions, all of which are timely, even urgent, and all explore situations that in one way or another strain existing concepts and paradigms of the laws of war. The interventions today will address such questions as who gets to decide when an armed conflict is in fact over, the limits of the laws of self-defense, and the use of self-defense and national security discourse in maintaining the forever wars we are exploring today. These questions underlie more detailed questions, for instance, why the twenty-five-year-old United States authorization on the use of military force remains in effect, the logic animating the claim of a terrorism exception to state immunity, and so forth.

Lakmini, what do you see as the consequences, or perhaps the unintended consequences, that flow from the way that we characterize situations of armed conflict? More broadly, what is the relationship between the laws of war and the law contra bellum, or the law of peace, if you will? Does international humanitarian law (IHL) prolong wars by allowing the normal order of things to be suspended, perhaps indefinitely, based on the factual reality of effective control of foreign territory and by maintaining IHL separation from the underlying lawfulness of the situation giving rise to its application?

Remarks by Lakmini Seneviratne

I see two parts to your question. I will start off with the first part about the classification piece itself, and recall some of the things that are important for us to note before we get into the question of what do you expect by classifying a conflict and what are the unintended consequences.

IHL recognizes two types of armed conflict, and the International Committee of the Red Cross’s (ICRC) commentaries to the Geneva Conventions, which draws on state practice, jurisprudence, and IHL principles, have laid down criteria to define non-international armed conflicts and international armed conflicts. The criteria are well established. In our opinion there is nothing to question there, and of course the definition of international armed conflict also includes situations of belligerent occupation.

What that means is that if the criteria are satisfied, then obligations of IHL apply. It casts obligations on the parties, and in turn recognizes that certain protections apply to those who are affected by armed conflict. These include not only civilians or those who are not taking part in the hostilities, but also those who are no longer taking part in hostilities. These obligations go from conduct of hostilities to detention to management of the dead and so on. IHL also allows the ICRC to come into the context and talk to the parties and implement our mandate.

What that means is that once you bring in IHL, you also in fact admit that certain core underlying principles are in operation, one being that for the application of IHL the legality of the conflict does not matter—the ad bellum and in bello differentiation. The cause of the conflict does not determine the applicability of IHL. Because IHL is fundamentally humanitarian in nature, it does not get into the cause or the justness of the conflict.

And then there is the principle of equality of belligerence, where you recognize that parties to armed conflict are equal in their obligations under IHL. Of course, there are certain differences when it comes to international armed conflict (IAC) versus non-international armed conflict (NIAC) in terms of conferring prisoner of war (POW) status, for example. You also recognize that there is an obligation on the parties to respect and ensure respect for IHL. Finally, there is the principle of non-reciprocity in the obligations, which is that the fact that one party is not complying with obligations cast upon it does not relieve the other party of its own obligations.

What is important to note is that when the criteria are fulfilled, the fact that you decide to give that situation a different name does not take away the obligations. Calling it “hybrid warfare,” “competition,” “proxy warfare,” does not take away the applicability and application of IHL. The criteria are clear. If they are fulfilled, then IHL applies.

The other important thing to note is the investment that states have to make to ensure that you comply with IHL. Now, you can ask whether that is encouragement to armed conflict, which I will get to in a moment. But the important thing is that the law, particularly the law of international armed conflict, requires states to take certain preparatory measures in peacetime in preparation to comply with the law during war.

The intended consequence is the recognition that there are limits in war. Even in the worst times of human conduct, there are limits. But then, are there unintended consequences? One could ask whether the application of IHL encourages war; whether it provide a reason for the parties to continue an armed conflict.

There are a few things of which we have to remind ourselves. One, in the ICRC’s experience of over 160 years of working during and in the aftermath of armed conflict, there are no short and sharp wars. Despite the criticism that IHL prolongs war, encourages resort to war, forces war economies, and so on, the ICRC is not aware of any empirical evidence that says applying IHL prolongs war; nor that applying IHL shortens war. We are also not aware of any evidence that IHL applicability acts as an incentive to wage war.

In the ICRC’s opinion, “does the application of IHL prolong war” is the wrong question to ask; because the implied question is then “should we discard this body of law?”, or “should we apply it in a different way?” We have to ask ourselves, what is the alternative if we do not apply principles and rules of IHL in such a situation? Should the justness of the cause, whether you are the aggressor or the victim, entitle you to interpret the law differently, or have less accountability? What would that mean in practical terms? We all know the cost of that kind of interpretation in economic, humanitarian, financial terms, and political terms; would war not actually be prolonged if you go down that path?

It is important to deconstruct this notion and remind ourselves of the object and purpose of IHL, which is to strike a balance between military necessity and humanity. IHL is not supposed to prevent war. It is not supposed to address the underlying causes or resolve situations of armed conflict. It is not supposed to be invoked to justify the resort to force, or to displace the UN Charter. In fact, in the diplomatic conference of 1949 it was clearly said that the object is not to get into questions of legality of war or to question the application of the UN Charter.

I will conclude by laying out two or three more points on what the ICRC believes in terms of IHL’s contribution to peace, emphasizing the fact that it is about contributing to finding pathways toward peace.

As the ICRC’s chief legal officer recently published in the International Review of the Red Cross, humanitarian restraint in war and the quest for peace are not mutually exclusive, but complementary. When one looks at the different obligations and the protections that are afforded through IHL, there are clear examples of where IHL fosters conditions to promote peace. For example, there are provisions on how to treat detainees, when to release them, what to do with regard to missing persons, how to apply the rules of targeting and thereby reduce the cost of reconstruction. Through these measures, IHL essentially fosters conditions for promoting peace.

IHL also encourages belligerents to create humanitarian spaces to protect victims of war; for example, an often neglected point in Common Article 3 is the possibility for parties to come to special agreements to operationalize the Conventions. IHL also supports peace building by providing a framework for transitional justice, for example, the provision in Additional Protocol 2 about pardons while accounting for serious crimes.

The bottom line is that we have to let IHL do its thing, which is not to prevent war or to resolve conflict, but to preserve humanity in war by balancing it against military necessity; and then complement that with other bodies of law and diplomatic efforts.

Omar Shehabi

In the International Court of Justice’s advisory opinion of July 19, 2024, the Court characterizes Israel’s occupation of the territory it seized in 1967 as prolonged and the abuses of that occupation sustained. And yet, by my reading, and you may disagree, the Court does not fully grapple with those characterizations in the language of the law of state responsibility. How do you understand these concepts and what does the Court’s treatment of these concepts tell us?

Remarks by Yaël Ronen

I would like to begin by acknowledging the privilege that I have to be sitting here while my country continues to be at war. It is now day 560 of the longest and deadliest war in the Israeli-Palestinian conflict, with the lives of two million people increasingly at risk and under threat, with no moral or legal justification at this stage. While the topic of the panel is not connected directly to this situation, in practice the situation and the issue of prolonged occupation are not entirely unrelated.

In order to speak about the notion of prolonged occupation and abuse of the power of the occupant, I want to start by recapping what the Court said. The court started by noting that prolongation of occupation does not in itself render the occupation unlawful. What matters is whether the occupation is temporary or not. There is a presumption that occupation is of short duration. But when the occupation is no longer of short duration, the question arises whether it is also no longer temporary. It is worth pointing, in this context, that Israel has for a long time argued that the occupation is temporary but indefinite.

The answer depends on the reason for the failure of the occupation to be of short duration. It may be that the basis for the military action that brought about the occupation in the first place persists; primarily that a military threat and self-defense concerns continue to exist. This would normally affect the manner in which the occupation is administered, and the temporary character of the occupation may remain credible. Another option is that the prolongation of the occupation is motivated by external factors, for example, expansionism, in which case the claim that the occupation is still temporary becomes non-credible.

The thing is that the grounds or motivation for the occupation of both types, legitimate and illegitimate, may apply simultaneously. This is something that the Court did not address directly. It took the view, at least implicitly, that in the occupied Palestinian territories, external motives that are at play. When it spoke of “sustained abuse,” it referred to Israel abusing its position as an occupant. This sustained abuse or misuse of power resulted in de jure or de facto annexation (depending whether we are speaking about East Jerusalem or the rest of the West Bank), and in the violation of the right to self-determination. This, according to the Court, is what rendered Israel’s presence in the territory as occupant illegal.

The use of the term “sustained abuse” rather than “violations of IHL” is important; because had the Court remained with the issue of Israel’s violation of the law of occupation as part of IHL, the advisory opinion would have remained in the context of whether the law of occupation complied with or not. What the Court did was go a step further and consider Israel’s abuse of power as an occupant, power in the factual sense rather than the legal sense, in order to further annexation and the violation of the right to self-determination. This allowed the Court to go beyond the law of occupation and on that basis declare that Israel’s presence in the territory (as occupant) was unlawful, or, in shorthand, we can say that the occupation is illegal. This is a novelty in the advisory opinion.

This is where the prolongation of the occupation connects with the right to self-determination: Any occupation is by definition an infringement on the right to self-determination. This was pointed out by Judge Iwasawa, now President Iwasawa. The question is, though, when do we say that the right to self-determination is not only infringed upon but also violated? There is no clear answer to that in international law. The Court emphasized the fact that this infringement has been going on for decades, and that there is no end in sight. It is the prolongation, in retrospect and prospectively, that renders the infringement a full-fledged violation of the right to self-determination. Moreover, according to the Court, this violation, being a violation of a peremptory norm, leads to the illegality of the occupation.

This is an interesting opinion in many ways. One of them is the idea that we recognize that self-determination is violated and not only infringed upon, through the indefinite prolongation of the infringement.

With regard to your question, I am not sure that the Court failed to exhaust what the law on state responsibility allows. The Court held that Israel should withdraw from the territory as rapidly as possible. It held that Israel should cease the establishment of settlements and dismantle the existing one and remove the settlers, that it should provide reparations to all victims of occupation, and the states should not recognize the situation arising from the illegal situation and not assist in maintaining it. This raises a few questions. For example, why does the Court speak of withdrawal from the territory “as rapidly as possible” and not “immediately”? If the occupation is illegal, presumably Israel needs to withdraw immediately and there is no justification for waiting.

One reason for this might be precisely the fact that the Court avoided dealing or engaging fully with the question of how to deal with a situation when, in addition to external and illegitimate motivations for the occupation, there are also legitimate grounds. Israel’s argument on the matter is a half-hearted argument, in part because Israel did not actually participate in the proceedings, but also because its submission on the matter was quite vague. But there is a valid argument that the occupation is required on grounds of self-defense. Judges Tomka, Abram, and Auresco had their reservations with regard to the majority opinion precisely because that opinion disregarded this dilemma, and they did not fully join the dispositif, Judges Cleveland and Nolte answered this question by holding that there is no longer a credible self-defense argument or a self-defense claim when in practice there is annexation. This is an interesting proposition: that the legitimate grounds are subordinated to the illegitimate ones.

Perhaps what the Court ultimately did was adopt wording that leaves some room to take account of security considerations, and that is why it said “as rapidly as possible” rather than “immediately and unconditionally.” It left some room for maneouver without actually saying it was doing so, and allowed the dissenting or partly dissenting judges to join in most of the decision.

Another issue that has been raised is that the advisory opinion might have gone further in identifying the obligations of third states, such as a prohibition on obstructing action to realize the right to self-determination, an obligation to take non-forcible action to realize the right to self-determination, or even going beyond that. But this is more than could have been expected from either the Court or the notion of state responsibility. Given what had been requested from the Court in the request for the advisory opinion, it would have been too much to expect it to go beyond the implications for the occupation and pronounce on what the situation means for Palestinian statehood or for Palestinian action in other ways. As for what the notion of state responsibility can carry, state responsibility is concerned with the consequences of a violation of international law by a state and no more. And as for the right to self-determination, what it implies in terms of the obligations of their states is another matter on which the Court could have gone further, but was not required to.

Omar Shehabi

Alka, you have a unique perspective, to say the least, on forever wars and their effects as counsel in the Guantánamo Bay military commissions, proceedings that have stumbled along, for twenty-plus years, and most recently, for those of us who are not following the granular details, resulting in a plea bargain in the highest profile of the cases that was rejected by the former U.S. secretary of defense. What insights can you draw on the larger question of forever wars from your Guantánamo experience—the authorization of the use of military force and the establishment, but not conclusion, of the military commissions?

Remarks by Alka Pradhan

The first thing I have to say is that, for reasons that will become very apparent, nothing I say represents the opinion of the Department of Defense, and nothing I say should be taken to confirm or deny anything that the U.S. government considers to be classified.

My perspective is as a litigator, and I heard Lakmini speak about the concept of equal co-belligerents. As a litigator at Guantánamo and at the International Criminal Court, my job entails the pursuit of justice and equal protections for men who have been accused of terrorism and war crimes, but who also may have been mistreated, arbitrarily detained, and have in all cases been tortured by state parties. My clients’ cases are predicated on forever wars.

I want to look first specifically at the 9/11 case, which has been going on at Guantánamo for over thirteen years in pre-trial hearings. There has never been a trial. The two most striking things are, first, the manipulation of the law of war to limit rights only for one party, the non-state party, and to hold them essentially forever and prosecute them before a military commission. And the second is the excuse of war and security was used to really brutally torture these detainees, as has been recognized time and time again in various courts and by everyone in the world at this point. Pre-9/11, our understanding was generally that terrorists were tried under criminal law, not under IHL. And the U.S. position since 9/11 has sort of gone in a different direction. The United States government’s position is that al-Qaeda unilaterally declared war on the United States, which is traditionally a state function, and that the “war” began in 1996, but members of al-Qaeda or associated forces do not really have any rights of combatancy. Their rights are relegated to a sort of statement that is repeated often by the Department of Defense that Common Article 3 applies. And anyone who has been to Guantánamo knows that even now, twenty-three years later, the conditions on the ground do not reflect Common Article 3.

The premise of the forever war, in our case, is the Authorization for the Use of Military Force, which has morphed over time to include all manner of forces all over the world. What I want to do is take a step back, look at the characteristics of prolonged NIACs, and discuss why we do not necessarily want unnecessarily prolonged non-international armed conflicts. Taking just the example of the U.S. wars around the world on terror, the absence of a controlling test for determining the end of a non-international armed conflict has resulted in, at least, the prolonged exposure of civilians to the harms of armed conflict. You see civilians being readily accepted as collateral damage, which is, of course, permissible in armed conflict under certain circumstances—but outside of armed conflict, they would be entitled to due process, entitled perhaps to reparations. Instead, now they are sort of dismissed, and we saw that early on in Afghanistan, we saw that in Iraq, we saw that with the drone wars, and so we now have victims all over the world who are just swept under the rug of civilian collateral damage under this pretense of forever war.

We also know from experience that the framing of a NIAC tempts states to resist ending that framework in order to enjoy the comparatively liberal use-of-force regime that allows detention and targeting. Lakmini made the comment that there is no real evidence that the application of IHL gives parties a reason to continue war. But I do think that the United States, for example, has taken every opportunity to shoehorn groups and individuals and causes under the so-called “War on Terror” into a “war” framework. The answer, I would posit, is not to discard IHL, but to apply it when it is appropriate and to make sure that we enforce limitations, so that we maintain the specialist nature of the lex.

On the flip side, NIAC designations may benefit non-state organized groups, when they are battling a weaker state apparatus and are trying to weaken them further through prolonged armed violence that would otherwise be prohibited, otherwise be categorized as acts of terror and dealt with under ordinary criminal law. Again, the absence of a controlling test for the legal termination really is a huge hole. There have been a number of proposed tests over time, but the vagueness of those tests, in my opinion, is reflected in the lack of wide adoption, and it does not give us a lot to work with in court. As more international criminal law cases are NIAC-based, we should be thinking about how the law is going to hold up in a courtroom. We certainly cannot rely on the deterrent effect of the law alone, and especially not for powerful states or traditional big powers.

In this regard, Ben Farley and I wrote a paper proposing a new test—a more practical test—that we think would address some of the issues that we are seeing in these cases arising out of the forever wars. It has three parts:

The first part of the Farley-Pradhan Test is a reverse Tadić, so either the intensity of the violence or the organization of the party must diminish below the threshold necessary to constitute a NIAC. Not a full cessation of all violence, because, under Tadić, there may be isolated or sporadic acts of violence that do not rise to the level of a non-international armed conflict, but the diminution of one of those factors, so essentially a reverse Tadić.

The second part of the Farley-Pradhan Test is a fact-based analysis of when observable circumstances suggest that an armed conflict has terminated, and what we call in the paper the “quality of pacification.” For that, you look to the statements of the parties, the fulfillment of objectives, and the implementation of concrete steps like disarmament toward peace.

Then the third part of the Farley-Pradhan Test is novel and most likely to engender some pushback: the timer. All of these above circumstances have to be in place for a period of at least five months. The five-month timer comes from the International Criminal Court’s decision in the Bemba case, where the Trial Chamber found that a period of five months was to be considered “protracted” in order to be able to find the existence of a non-international armed conflict. That was a minimum period of time in that case. In the interest of symmetry, we argue that all of those factors that we just discussed have to be satisfied together for at least a minimum of five months. This is still a high standard, given that we are layering the factual analysis, but it provides a concrete time limitation that is so sorely lacking right now, because it is too easy for the United States or any other powerful state, to argue that a NIAC continues in order to justify heavy-handed measures, prolonged detention, mistreatment of detainees, et cetera.

Right now, we are normalizing lex specialis in a very destructive way, and at the expense of criminal law and human rights law. This is why we need this test

Omar Shehabi

Ian, I am going to ask you draw a line through these data points of the prior interventions and opine on whether you see the laws of war losing their normative pull in constraining state power, or speak to the entanglement of state power and legal authority and how that is leading to a creative refashioning of these rules in a new and dangerous direction.

Remarks by Ian Hurd

International law on the use of force is typically presented by scholars as a restraining device that limits state decisions on war. I suggest instead that it also contributes a permissive power which legitimizes the use of force and makes war more likely rather than less. By overlooking the permissive power of law, legal scholars are apt to misunderstand the dynamics that sustain today’s forever wars and to arrive at the mistaken conclusion that international legalization is inherently progressive.

First, I note that there is a mismatch in how international law documents the opening of international armed conflict and the closing of war. The lawfulness of war is usually judged in relation to well-known criteria including self-defense and imminent threat which are set out in legal texts. The termination of lawful war is largely left to the parties to decide. Second, I suggest that the asymmetry between how law opens and closes war contributes to the practice forever war. The “right” of self-defense extends across time and ends only when the state feels its interests are no longer under threat.

It is striking how often international legal scholars talk about the legality of war at the point of initiation in contrast to how little they talk about the end of conflicts. Self-defense is the key to lawful war. It has alchemical power, turning unlawful war into the lawful use of force, and as it has expanded over the past one hundred years the permissive scope for war has become larger both in concept and in time.

The start of wars is detailed in legal texts and commentaries; the end is not. Every student of international law and politics is instructed in the rules on war that are contained in the UN Charter, and it is conventional to test students on their ability to thoughtfully integrate Articles 2(4) and 51 of the Charter into an account of the modern legal regime on inter-state war. From there, scholars commonly unspool controversies and ambiguities in the law from specific cases, changing state practices, and concepts such as imminence, pre-emption, humanitarianism, and many more.

To be sure, this conventional body of work does not neatly resolve every question regarding the legality of the use of force. But it does provide a well-referenced set of resources with which to argue over the conditions that make it lawful to go to war. It makes it clear that self-defense is a lawful reason to use force and that spite, aggression, and desire for treasure are not, and that the threat of an armed attack can trigger the right of self-defense. On the start of wars, there is a lot of law.

There is nothing comparable on the closure of war. The Charter is silent on when the lawfulness of war ends and we cannot offer much to students to help understand how war closes. It is as if the rules of baseball were written to explain how to play the game but neglected to mention that the game ends after nine innings. This is a curious condition in a system that presents itself as governed by rules.

How do we know when lawful war ends? Into the black-letter void comes state practice. We observe that governments seem to end wars when they decide it is not worth continuing. The gains of continuing are outweighed by the expected costs and so conflict ends. In the language of self-defense, this is the moment when the state (“the self”) decides that its interests (“defense”) are no longer served by war. Article 51 turns backward, and declares war unlawful, at the point that the state decides itself no longer needs defense.

Notice the power of the self in this legal logic: the legality of war is a function of the perception of threat by the state, and once opened the legality of war is a window that remains open until the state decides it closes. The desires and needs of the state, as sensed by itself, drive the machine of legalization.

This illustrates my second point: the centrality of “self” reunites the opening and closing of war in international law. Just as the government decides when a threat no longer exists and thus when it closes, it is also empowered at the front end to decide when its interests are sufficiently in danger to activate the use of force in self-defense. The sense of danger is a psychological or emotional condition rather than an objective or legal category. The laws of war attach legal implications to the psychological condition of fear. The opening of war is equally a matter decided by the state in consultation with, as it were, itself over whether its interests are threatened.

International legal practice has shifted from the formal criterion in the UN Charter of “when an armed attack occurs …” (Article 51) to an internal assessment by the state of the existence of a threat to its interests. This change can be documented in many ways—in for instance state justifications, changes in scholarly writing, and the U.S. insistence on the lawfulness of pre-emptive war—all of which reside in the domain of state practice rather than formal treaties.

Scholars of international law and politics typically emphasize the constraining power of the laws on war. When we instead notice the power it gives to governments then the normative valence of international law looks ambiguous. The advent of legal frames around the use of force, which is celebrated by many for putting boundaries around state decision, both constrain and enable governments. Some motives for war have gone away. But the one that remains—self-defense—elevates states’ internal psychological drives for ontological security to an existential level and legitimizes the use of force. We have seen the result: states today claim the right to use force as needed to defend their interests, and for as long as their interests remain under threat.

Forever war is a product of international law, brought into being by governments making use of the strategic resources provided by the progress of legalization in the twentieth century.

Omar Shehabi

Taking a moderator’s prerogative, I see a dialogue between what Lakmini said and what Alka said. Lakmini mentioned the equality of belligerence, and Alka mentioned the manipulation in the characterization of the war itself, or the non-international armed conflict, and almost increasing the status of one’s enemy to the level of an armed group with the requisite level of coordination. What both make me think of is the situation in Western Sahara with the Frente Polisario.

Non-state actors or non-recognized states have been making unilateral undertakings to abide by the laws of war for a long time. But the Polisario, not so long ago, took advantage of Article 96(3) of the First Additional Protocol, which allows for the unilateral declaration of adherence to the conventions, because it is engaged in armed conflict with Morocco, which is a high contracting party.

This comes at an important time for the Polisario because its recognition, or the recognition of the Sahrawi Arab Democratic Republic, its government, has been waning, and the African continent has been rescinding its recognition of the SADR. And so the Polisario is in need of something to validate its equality, if not as an African state, then as a legitimate non-state actor.

My question for both of you is what to make of what this phenomenon contributes to a forever war. Does the uplift that the Polisario gets from its Article 96(3) declaration (and recognizing that this is fairly esoteric amongst international law nerds) contribute to the prolongation of a war? Is it a feature or a flaw of the laws of armed conflict?

Lakmini Seneviratne

For me your question goes back to the object and purpose of IHL. Why are these provisions in the Geneva Conventions and the Additional Protocols? Is the purpose of that provision to confer a status that you do not otherwise get by virtue of another body of law? Or is it meant to achieve a different purpose? Fundamentally we are asking the wrong questions from IHL when we ask “does it prolong a war” or “does it confer a status that you do not otherwise get.” I actually see a parallel between these questions and the relationship between counterterrorism frameworks and IHL. In the ICRC’s view, those two bodies of law can coexist, recognizing that the two frameworks serve different purposes. As long as carve-outs for IHL are incorporated, counterterrorism laws could provide the framework to address legitimate interests of the state while IHL continues to serve its purpose. In the same way, I do not see Article 96(3) of API serving a purpose other than facilitating all parties to the conflict to comply with the law.

I do agree with Ian, and as the ICRC we believe, that compliance with the body of law that is IHL requires first and foremost the political will. Whether to recognize that IHL applies in the first place, is a political decision. Then the rest follows. It is important not to conflate legality of the cause and conferring legal status to certain actors, with recognizing obligations under IHL; accepting that the latter ensures protection for those that need it, which ultimately is the object and purpose of IHL.

Omar Shehabi

The phenomenon of a non-state actor saying that they intend to be bound by IHL is something to be welcomed, right? But at the same time, IHL is non-reciprocal. It does not absolve state parties of being bound, regardless of what a non-state actor says. And as a pathway to legitimacy, I would go back to a fact-based inquiry in terms of determining whether or not IHL applies. Just because a party says they intend to be bound by IHL does not mean that IHL necessarily applies in that moment. IHL should not artificially displace the normal domestic criminal law or human rights law without the rest of the circumstances being in place that create a NIAC.

Yaël, I have heard a lot of talk this past few days about the law of state responsibility, but always focused on the articles on state responsibility. I gnash my teeth when I hear that, because the article’s state responsibility are codification of the lex lata that existed twenty-five years ago. Since we are concerned about concepts of the laws of war being tortured so as to give a legal veneer to these perpetual states of exception, what is not to say that the law of state responsibility is not similarly being abused? When you mentioned in your remarks the sort of paucity of the law and the need for the court to stay within the law, what to the objection that law, in fact, was old in 1999 or 2001 and is really old and outmoded now?

Yaël Ronen

Whether it is outmoded or changed or not would be a question for international consensus. There is nothing to say that it cannot change, but it is not enough to say that it ought to change, or that it may have changed. Yesterday there was a session in which the question was what to do about interstate hostage taking, and Fionnuala Ní Aoláin said that what is required is multilateral action. It is becoming truer and truer that the assumption that international law would be enforced through legal unilateral action, is proving unsuccessful, and there is need for multilateral action, but there needs to be a political will. Ultimately, as Lakmini said earlier, the application of IHL requires political will. Law will not stop war. It is political will that will do that. Law only provides the tools.

Omar Shehabi

Ian, I have no question for you, so perhaps pontificate on what you have heard.

Ian Hurd

I will answer the question that I thought you were going to ask which is “Why are you trying to bring us down so much?” I am a political science person and I am answering my own discipline’s quirk, which is that so many people in political science who study international law take a kind of enchanted view of the law as the kind of solution to political problems. That requires a kind of unrealistic image of what international law can do and a wishful thinking about what it actually does. The first step in understanding how to make things better is probably to understand how they are working now, and that requires seeing the political forces that are running through the application of international law to various goals. That is what I hear across all the presentations so far.

Alka Pradhan

We are here talking about the forever wars, but we are also seeing what is happening in the news, and a lot of us are tearing our hair out because it seems like the media and even a lot of lawyers are saying “How are these terrible things possible?” If you go on social media right now, there is video coming out of the Bluebonnet ICE detention center about men being forced to sign declarations that they are part of Tren de Aragua in English, which may not be their first language, and presumably for the purpose of being rendered to CECOT. There s a lot of surprise about how this is currently possible, and the answer is, this is not particularly far removed from what has happened before. This is the White House currently building on the exact tools of executive power that have been provided to them post 9/11, that Bush, Obama, and Biden all expanded over time. We have ended up with exactly what many of us predicted ten or fifteen years ago with the initial U.S. violations of IHL and subsequent impunity. For example, we have normalized Guantánamo to such an extent that we forget how illegal it actually is. The current targeting of Tren de Aragua, or any groups of migrants, the use of the Alien Enemies Act; these are legally only a very short step away from what has taken place at Guantánamo or with drone targeting, or in Iraq, for twenty-three years. If I seem angry, it is because I am. It is because a lot of us have sat in rooms with the victims of U.S. wars, with their families, have seen the effects firsthand, including on the communities abroad. And the anger and pain and resentment that our crimes engender that ultimately make us all less safe.

Omar Shehabi

If I understand you correctly, you say that our emotions are taking us to stay in this permanent state of exception. My fear is that the permanent state of exception takes us to a place where we conclude, non liquet, there is no law. You were descriptive and not prescriptive, but if you were to offer a prescription for how to deal with this problem, do you see it the same way, of allowing emotion and leaving the end of a war to be an emotional/political decision currently unconstrained by law? What is the remedy?

Ian Hurd

I do not think it is unconstrained by law. It is constituted by law, because the law is the language in which these decisions are explained and legitimized. What to do instead? I do not know that there is any alternative to explaining ourselves through the concepts and rules and laws that we find around us. That may just be the human condition. There are lots of things that are unfortunate, but they exist. Understanding the way that power is using law and other institutions is a crucial step to understanding the world that we live in. If one is so inclined, then to thinking about ways in which it might be changed.