ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

109 THE LAW(S) OF WAR
Panel formed with individual proposals.
Participants Adam Weinstein
Anne Dienelt
Heidi Matthews
Devendra Kumar Sharma
Jenna Sapiano
Adam Shinar
Name of Chair Jenna Sapiano
Room DOR24 1.501
Adam Weinstein: The High Cost of War Culture:
Groundless Logic and Ambiguous Law in the
Torture of Suspected Terrorists
Most law and policy scholarship related to the torture
of suspected terrorists since 11 September has
focused on ethical questions or the ever-shifting legal
definition of what torture is or is not. In contrast, this
paper focuses on the question of whether the sociopolitical
costs of torture are outweighed by the strategic
advantage it provides – if any. From the outset, it rejects
the illogical notion that torture never works or always
works. The paper first examines the way American
society defines torture in both sociological and legal
terms, with particular emphasis on how society’s view of
torture is shaped through a positive ‘reality construction’
of torture in popular movies, political rhetoric, and the
sterilization of language used to officially describe interrogation
techniques. It then explains how international
and U.S. law was manipulated through ill-structured
analogies, an ever-narrowing definition of torture, and
a perverse interpretation of the doctrine of self-defense.
Anne Dienelt: Pushing Boundaries! – At the
intersection of LOAC, IHRL and IEL
Fields of law accepted as lex specialis, fields of law
accepted as distinct and absolute, are merging. Long
accepted boundaries are vanishing, boundaries are
being pushed. And new problems arise at the intersection
of these fields. An approach to solve them will be
developed in this presentation.
The intersection of laws analyzed regards questions
of environmental protection and armed conflict,
governed by the laws of armed conflict, human rights
law and international environmental law. The International
Law Commission’s Fragmentation Report will
help to analyze this intersection, as well as their Draft
Articles on the Effects of Armed Conflicts on Treaties.
The law of treaties and its legal techniques are also
considered. “Systemic integration”, codified in Art. 31(3)
lit. c VCLT, as well as the evolutionary interpretation will
serve as tools to clarify the overlap.
Most of these methods, however, are only discussed
within single fields of law. Nevertheless, legal reality is
more complex: Legal questions cannot be answered
by one field of law only, and methodology has to adapt.
Heidi Matthews: Military Necessity, Kriegsraison
and the Development of Modern International
Criminal Law
This paper challenges the foundation myth that
sees the nineteenth century codification of the laws
of war as inaugurating the modern project of humanizing
warfare. International lawyers understand the
long nineteenth century as a competition between
this new modulated conception of military necessity
and the German doctrine of Kriegsraison. Whereas
under Kriegsraison violations of the laws of war were
permitted where required by the exigencies of victory
the new military necessity framework admitted of no
such defence of justification or excuse. By introducing
a discontinuity between the long nineteenth century
and the development of international criminal law this
paper will help undermine contemporary justifications
for ICL which see ad bellum/in bello interdependence
as constituting the complete denial of the rule of law.
Devendra Kumar Sharma: Terrorism in South
Asian Region and Role of SAARC Countries to
Combat Terrorism
The South Asian Association for Regional Cooperation
(SAARC) is an economic and geopolitical organization
of eight countries that are primarily located in
South Asia or the Indian subcontinent. It is an association
of countries which includes Bangladesh, Bhutan,
India, Maldives, Nepal, Pakistan and Sri Lanka. SAARC
was established in Dhaka, Capital of Bangladesh on
8 December 1985. Afghanistan joined this association
in 2005. Just after the establishment of the SAARC, a
need was felt for collective regional effort to combat
terrorism in South Asian Region. All the member countries
of SAARC countersigned the SAARC Regional
Convention on Suppression of Terrorism with one voice
to combat terrorism form their soil. Almost three decades
later, cooperation on counter-terrorism among
SAARC member countries remains largely symbolic.
Jenna Sapiano: Violence in Post-Conflict
Constitutions
Violence is often not considered in constitutional theory,
as constitutions are understood to be beyond normal
politics, and violence, in the Arendtian tradition, is outside
politics. However, a constitution drafted as part of the
peace process is intended to end violence, both the actual
occurrence of violence and the possibility of renewed
violence. Peace agreement constitutions, in fact, intend
to move contestation out of violence into politics. Yet, in
post-conflict states such as the Democratic Republic of
Congo and Burundi the constitution is being manipulated
by long-term rulers who are vying to stay in power, making
the constitution central to the outbreak of violence. In
Nepal, the new 2015 constitutional arrangement, particularly
the inclusion of federalism, has caused violence to
breakout along the border with India. These case studies
suggest the relationship between peace agreement
constitutions and violence must be further explored.
Concurring panels 157