Confronting Complexity through Law: The Case for Reason, Vision, and Humanity
Kellenberge, Jakob, Proceedings of the Annual Meeting-American Society of International Law
It is a great honor for me to have been invited to deliver the fourteenth annual Grotius Lecture at the invitation of the American Society of International Law and the International Legal Studies Program of American University's Washington College of Law. It is likewise a great pleasure to be speaking at the Annual Meeting of the American Society of International Law, which has for so many decades been dedicated to enabling open and creative discussions of the outstanding legal issues of the day. It must be admitted, however, that addressing the opening of an ASIL meeting entitled "Confronting Complexity" presents a great challenge, for the general theme seems aptly to encapsulate both the times we live in, which are undoubtedly complex, and calls on me to try to outline how we might deal with complexity.
It should come as no surprise that my remarks will primarily focus on the role of the law in confronting the complexity of violence, and particularly the role of international humanitarian law in confronting the complexity of armed conflict. It is fitting, in this context, to pay tribute to Hugo Grotius. In line with principles established by his Spanish and Italian intellectual counterparts Francisco de Vitoria and Alberico Gentili, he laid the foundations of international law, and in his timeless treatise, On the Law of War and Peace, determined that certain rules govern the conduct of war whatever the justness of its cause. We are far beyond the writings of Grotius today in terms of the elaborateness of the international legal framework, including the one governing armed conflict, yet we remain in his debt. He not only paved the way to our current thinking, but showed us that complexity may--and can only be--addressed with reason, vision, and humanity.
What does complexity mean when armed conflict is the reference point for analysis? It means, first of all, that armed conflicts remain a tragic reality in the 21st century and that enormous human suffering continues to be caused by this form of violence. We are all witness to continued violations of international humanitarian law, including deliberate attacks on civilians, the destruction of infrastructure vital to the civilian population, the forcible displacement of entire communities from their habitual places of residence, and various forms of sexual violence inflicted against vulnerable individuals and groups. Persons deprived of liberty in armed conflict are likewise frequently subject to appalling behavior by their captors, including murder, torture, and other forms of ill-treatment; deprivation of humane conditions of detention; and denial of procedural safeguards and fair trial rights. Medical personnel and humanitarian workers are also an increased target of attacks. The law tries to prevent or put a stop to suffering and to deter future violations, but it cannot, by itself, eradicate abuses or be expected to do so.
Complexity may also be approached by examining the features of current armed conflicts and the political, economic, and social backdrop against which they take place--all issues which are beyond the scope of my remarks. Allow me, nevertheless, to note that the International Committee of the Red Cross, which has operations in some 80 contexts around the world, is involved in a variety of conflicts, ranging from those in which the most advanced technology and weapons systems are deployed in asymmetric confrontations, to armed conflicts typified by low technology and high fragmentation of the actors involved. Each case must be approached on its particular facts and a humanitarian response devised to meet the specific needs of those most affected, which is by no means a simple endeavour.
Increased complexity is also a feature of contemporary armed conflicts, the nature of which continues to evolve. The predominant form of armed conflict nowadays is non-international, often stemming from state weakness that leaves room for armed groups to take matters into their own hands based on real or perceived political, ethnic, or religious grievances. …