Response  |  Volume 161

Learning to Live with (a Little) Uncertainty: The Operational Aspects and Consequences of the Geography of Conflict Debate

By
161 U. Pa. L. Rev. Online 347 (2013)
Posted on Aug. 9, 2013

Response - Learning to Live with (a Little) Uncertainty: The Operational Aspects and Consequences of the Geography of Conflict Debate










The issue of the geography of “the battlefield”—that is, where an armed conflict can and does take place—has provoked extensive debates over the past few years. Professor Jennifer Daskal’s recent Article, The Geography of the Battlefield: A Framework for Detention and Targeting Outside the “Hot” Conflict Zone, which proposes a new law of war framework for targeting and detention operations that rests on a distinction between areas of ongoing hostilities and areas more attenuated from such “hot” battlefields, offers a useful and thoughtful addition to the discourse, highlighting some of the key interests and challenges at the heart of the matter.

Two central concerns, however, arise from the prospective application of Daskal’s suggested legal framework: (1) how the lack of strategic clarity trickles down to affect operational and tactical clarity, and (2) the long-term consequences for the development and implementation of the law of armed conflict (LOAC). This Response highlights these concerns as a counterpoint to the idea of a new set of rules based on shifting geographical combat zones, even in light of the potential procedural benefits such new rules and frameworks might engender.

Part I of this Response briefly highlights the core principles and purposes of LOAC as an essential backdrop to any discussion of LOAC’s applicability (both the “where” question and the “how” question). Part II then explores the consequences of using a rules-based framework to answer, or perhaps sidestep, the challenging question of where the bounds of conflict with transnational actors may lie, focusing on issues of clarity and predictability and the long-term development of the law. The question of geographical application of LOAC is both highly relevant in the most pragmatic sense—the difference between being in an area of armed conflict or not literally can be life or death—and also not susceptible to specific and concrete definition. This combination of relevance and thorniness has led not only to extensive debates about how to conceptualize the geographic parameters of the battlespace in an armed conflict, but also to alternative paradigms for regulating the use of force through rules-based frameworks, hybrid paradigms, or other mechanisms, such as those Daskal proposes. Although these alternative conceptions of the battlefield are highly useful, it is also important to address their feasibility in the operational realm and their potential second- and third-order effects.



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