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43 Colum. J. Transnat'l L. 1 (2004-2005)
Privileging Combat - Contemporary Conflict and the Legal Construction of War

handle is hein.journals/cjtl43 and id is 11 raw text is: Articles
Privileging Combat?
Contemporary Conflict and the Legal
Construction of War
Recent high-profile debates about unlawful or
unprivileged combatants call for fundamentally
rethinking the role of international law in relation to
war. In the conventional view, the laws of war, both
jus ad bellum and jus in bello, primarily seek to
oppose or restrain the practice of organized violence.
This Article, focusing on the legal doctrines crucial to
the combatants' privilege, argues for three contrary
propositions. First, law's role in relation to war is
primarily not one of opposition but of construction-
the facilitation of war through the establishment of a
separate legal sphere immunizing some organized
violence from normal legal sanction and, inevitably,
privileging certain forms of violence at the expense of
others. Secondly, the forms of this legal construction
of war are highly contingent, the subject of historical
variation and political contestation. Thirdly, the legal
construction of war as a separate sphere has been
considerably destabilized in our time, in particular by
the strategic instrumentalization of the legal categories
by state and non-state participants in violence. Both
the war on terror and the fourteen year conflict with
Iraq  provide  paradigmatic instances   of  these
phenomena.      This  Article  analyzes  the  legal
Professor of Law, Brooklyn Law School. I would like to thank Gregory Fox,
Thomas Franck, Janet Halley, David Kennedy, Julie Stone Peters, Brad Roth, and Chantal
Thomas for their valuable comments.

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