War as Politics, Not Legal Facts: How the Modern Battlefield Drives the Disputed Creative Use of International Law

The classification of conflicts in international humanitarian law is of crucial importance: whether an armed conflict is an international (between two or more states) or a noninternational armed conflict (between a state and a non-state actor, or between such nonstate actors) determines the applicable legal regime in this conflict. For instance, notions, such as combatant status or the protections awarded to prisoners of war, only exist in international armed conflicts. Contemporary wars challenge this distinction. Globalization and technological progress have changed war and warfare, both in terms of the actors involved and the way the wars are fought. Today’s armed conflicts are fought mostly against non-state actors in form of transnational terrorist networks or insurgent groups and are often fought across international borders, while also involving other non-state actors, such as private companies, non-governmental organizations, international organizations and the media. Technological advances in communications and weapons technology allow states and nonstate actors to reach their targets worldwide through armed drones, social media, and the internet. The role of the state in war is declining, and the traditional distinctions between soldier and civilian, war and peace, internal and international are blurring.


These developments challenge the laws of war, including the laws of conflict classification. How to classify a conflict that is not directly between two states, but nevertheless fought on the territory of another or even multiple states, has spawned a large-scale debate that remains unresolved. This dissertation examines how the changing character of war drives the political use of the law of conflict classification. I argue that conflict classification is becoming politicized, as the ambiguity surrounding the applicability of the different legal regimes allows states and other actors to act as norm entrepreneurs in order to use the law in their own interests. Their uses and interpretations of the law have the potential to change the law of conflict classification.


This dissertation combines insights about norm change and norm entrepreneurs from constructivism with critical legal theory that emphasizes the importance of law as the indeterminate language of modern war (chapter II). This interdisciplinary approach places the focus of the analysis on the role of different actors and their ways of overcoming the classification challenges posed by contemporary war.


By drawing on the literature about the changing character of war (chapter III) and the challenges that contemporary war poses for the traditional distinction between international and non-international armed conflicts in international humanitarian law (chapter IV), two frames are built for the case analysis. In chapter III four different views of international law are identified within the changing character of war literature, based on diverging views of the nature of war and whether continuity or change drives the development of war. These four views range from 1) the view that the law is inherently political because it resembles the interest of the most powerful actors and thereby changes according to the will of the powerful, over 2) the view that existing laws should be reinterpreted to accommodate the changed character of contemporary war or 3) the view that law in some cases has to be changed incrementally to address new technological challenges, to 4) the view that war has changed so fundamentally that a new legal regime is needed to address it. Chapter IV proposes three potential pathways to overcome the classification challenges in contemporary wars: the unification of the legal regimes of international and non-international armed conflict, the creation of a new legal regime to account for the cases of ambiguity, or the reinterpretation of the existing law of international and non-international armed conflict classification.


The three cases analyzed in chapters V to VII are the Iraq war from 2003 to 2011, as the most traditional form of contemporary conflict and thus a least-likely case for the politicized use of classification; the conflict in Syria since 2011 as middle case where some politicization can be expected; and drone strikes outside active battlefields since 2002 as a most-likely case for politicization of classification. All three cases show that conflict classification indeed is more politics than legal facts, as facts are interpreted in very diverging manner. The conflict in Iraq highlights the role of the United Nations Security Council in the politicization of conflict classification, while the case of Syria shows the impact of a lack of political will for classification and how the increasing internationalization of the conflict creates substantial disagreement regarding classification. Finally, the case of drone strikes outside active battlefields highlights how the US attempted to change classification norms after 9/11, but also that this US approach met substantial criticism and sustained resistance, thus politicizing conflict classification.


The dissertation shows that different actors have different views of contemporary war and its legal challenges, which leads to diverging interpretations of existing rules and solutions for the challenges of conflict classification. This leads to a politicization of conflict classification. Classification of contemporary wars really is more politics than legal facts.