The New Warfare

Rethinking Rules for an Unruly World

J. Martin Rochester

• Publisher: Routledge
• Year: 2016
• Topic: Law
• eBook ISBN:
  9781317276425
• Subtopic: International Relations
• Index: Law

This book looks at the evolving relationship between war and international law, examining the complex practical and legal dilemmas posed by the changing nature of war in the contemporary world, whether the traditional rules governing the onset and conduct of hostilities apply anymore, and how they might be adapted to new realities. War, always messy, has become even messier today, with the blurring of interstate, intrastate, and extrastate violence. How can the United States and other countries be expected to fight honourably and observe the existing norms when they often are up against an adversary who recognizes no such obligations? Indeed, how do we even know whether an "armed conflict" is underway when modern wars tend to lack neat beginnings and endings and seem geographically indeterminate, as well? What is the legality of anticipatory self-defense, humanitarian intervention, targeted killings, drones, detention of captured prisoners without POW status, and other controversial practices? These questions are explored through a review of the United Nations Charter, Geneva Conventions, and other regimes and how they have operated in recent conflicts. Through a series of case studies, including the U.S. war on terror and the wars in Afghanistan, Iraq, Gaza, Kosovo, and Congo, the author illustrates the challenges we face today in the ongoing effort to reduce war and, when it occurs, to make it more humane.

Part 1 Introduction

Framing the Puzzle

DOI: 10.4324/9781315640242-1

War, huh good God y’all

What is it good for?

“War,” recorded by Edwin Starr (1970)

War is sometimes justifiable … and the conduct of war is always subject to moral criticism.

Michael Walzer, Arguing About War

War does not determine who is right, only who is left.

Bertrand Russell

We are going to have peace even if we have to fight for it.

Dwight D. Eisenhower

Nothing like D-Day will happen again, not because human nature has improved but because weaponry has. Making war on that grand scale is obsolete.

Herman Wouk, “Never Again,” Washington Post (June 6, 1994)

Believe it or not … today we may be living in the most peaceful era in our species’ existence.

Steven Pinker, The Better Angels of Our Nature

If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law.

Hersh Lauterpacht, British Yearbook of International Law (1952)

1 The Changing Nature of War

Do we need new rules for an old problem?

DOI: 10.4324/9781315640242-2

For almost a half century, between the end of World War II in 1945 and the fall of the Berlin Wall in 1989, the United States and the Soviet Union engaged in an epic struggle known as the Cold War, so named because the two states were virtually never directly involved in actual physical exchange of hostilities against each other, notwithstanding the hostilities experienced by myriad others across the globe who were touched by the conflict and other conflicts. In the wake of the euphoria that attended the end of the Cold War in 1990, President George H.W. Bush proclaimed “a new world order.” ¹ The latter was short-lived. Euphoria suddenly turned to despair on September 11, 2001, as some 3,000 people – mostly Americans but also foreign nationals from dozens of other countries – perished when the twin towers of the World Trade Center in New York City collapsed after being struck by two airplanes hijacked by al Qaeda terrorists.

9/11 signaled that not only the United States but also other countries were having to confront “a new world disorder,” as the familiar features that had defined the international system through much of the post–World War II, Cold War era – a bipolar power and alliance structure built around two superpowers leading two rival ideologically based blocs – had given way to a much more complicated planet characterized by growing diffusion of power and fluidity of alignments, along with an expanding set of actors and agenda of issues, all contributing to a brand new, more uncertain security environment. ² Epitomized by ISIS and other new players on the international scene, the world today, in the post–Cold War era, strikes some as more unruly than ever.

The Context for this Study: The New Warfare

Among the films nominated for an Academy Award in 2014 for Best Documentary was Dirty Wars, based on the book by that name written by journalist Jeremy Scahill. ³ The book and movie examined the top-secret activities of the United States Joint Special Operations Command, CIA Special Activities Division, and other “special ops” divisions of the American national security establishment which were accused of carrying out “targeted killings” and other questionable missions after 9/11 that, it was argued, were violations of international law as well as U.S. domestic law.

The immediate question raised by the very title of the book is whether there has ever been a “non-dirty” war. From the Romans’ leveling of Carthage in ancient times, to the use of biological weapons (dead carcasses catapulted over castle parapets) in siege warfare in medieval Europe, to General Sherman’s burning of Atlanta and scorched-earth march to the sea during the American Civil War, to the use of chemical weapons during World War I, to the strategic bombing of Dresden and Tokyo and the dropping of the A-bomb over Hiroshima and Nagasaki in World War II, to the My Lai massacre in Vietnam up to the present day, war has always been, in Sherman’s words, “hell,” and usually dirty. Granted at times some wars have been fought more in conformity with the “laws of war” than others.

Soldiers always have had to contend with “the fog of war,” having to make uncertain, often hair-trigger decisions about the identity and whereabouts of an enemy, along with his intentions and capabilities. The climate for fighting wars arguably is getting foggier. Increasingly, there is also what Michael Glennon has called “the fog of law.” ⁴ Today especially, it would seem harder than ever to fight wars honorably, that is, to observe the rules restricting the resort to armed force (jus ad bellum) contained in the United Nations Charter as well as those rules restricting the nature of the force that can be used (jus in bello) contained in the Geneva Conventions and other such instruments, further embodied in long-standing customary practice going all the way back to the “just war” tradition of St. Augustine in the fourth century and Cicero and Ancient philosophers before him. “Just war” theorists concede war is horrible, but at times necessary and, depending on how it is waged, a legitimate endeavor. Before criticizing the United States or any other warring country for fighting dirty, one should inquire as to what a “just” war would look like today, not only regarding the circumstances under which it begins and the way it is conducted but also the manner in which it is concluded (what Michael Walzer has labeled jus post bellum). ⁵ (As a counterpoint to Dirty Wars, one might see a movie that appeared at the same time as the Oscar nominee, entitled Lone Survivor, based on a true story, in which U.S. Navy Seals in Afghanistan get killed trying to fight cleanly.)

War, always messy, has become an even messier phenomenon. I am referring to the fact that the face of global violence has been changing in terms of its main features. Mary Kaldor and other scholars have described “the new wars.” ⁶ The new wars are not altogether new, but they occupy center stage in the drama of world politics in a way they never used to. The use of armed force today increasingly tends to take the form of “force without war,” i.e., sporadic, intermittent violence in scattered locales, often involving nonstate actors (including terrorists, militias, guerrillas, and gangs), as opposed to sustained, large-scale armed combat between the uniformed armies of states across well-defined fronts, marked by neat beginnings (formal declarations of war) and neat endings (peace treaties). Interstate war – organized fighting between states, which since the beginning of the state system has been the traditional stuff of the study of world politics, the main scourge of humanity, and the focus of efforts to promote world order – is in decline and relatively infrequent. That is the good news. The bad news is that when it does occur, interstate violence tends to mix with intrastate violence (civil war) and extrastate violence (transnational terrorism) in complex conflagrations, as in recent conflicts in Iraq and Afghanistan, making it difficult to get a handle on the problem conceptually, strategically, and – perhaps most of all – legally.

I am particularly concerned here with how the changing nature of contemporary warfare is playing havoc with both the conventional “rules of engagement” used by armies as well as the laws of war upon which the latter putatively are based (both the rules regulating the outbreak of war and the rules regulating the conduct of war). Terrorism, militias, drone technology, targeted killings, humanitarian intervention, cyberwarfare, and a host of other elements of modern warfare pose special challenges for the UN Charter and other such governance regimes, which were premised on an interstate war paradigm and a post–World War II world that no longer exists. Although there has been some evolution in the body of rules governing the resort to armed force along with what is commonly called “international humanitarian law” (which is supposed to kick in once war is underway), the rules have not kept pace with the changing realities, raising questions about their continued relevance.

Scahill’s Dirty Wars opens with a quotation from the eighteenth-century philosopher Voltaire: “It is forbidden to kill; therefore, all murderers are punished unless they kill in large numbers and to the sound of trumpets.” Voltaire was cynically referring to the fact that humanity had come to accept the proposition that it was okay to kill, as long as it was done in the name of the state and national security, in other words, in interstate war; the taking of a human life might in one context be considered a heinous crime, but done in another context would be considered acceptable, even noble. However, not only is it questionable to call most acts committed in wartime “murder,” but, in quoting Voltaire, Scahill is commenting on a largely bygone era, as what wars occur today tend to produce smaller than larger casualties and generally are no longer accompanied by “the sound of trumpets.” Scahill himself speaks of “shadow warriors, night raids, secret prisons, drone strikes,” and the like. He criticizes the United States after 9/11 for taking the position that “the days of fighting uniformed enemies and national militaries according to the rules of the Geneva Convention were over. ‘The world is a battlefield’ was the mantra repeated by the … U.S. national security apparatus … laying out plans for a borderless global war.” ⁷ It is fair to question whether the United States was abandoning the normal canons of war-fighting, and in the process, opening itself to the charge that it was embarking on a permanent war with no temporal or geographical boundaries and, also, no limits to permissible behavior. However, it is also fair to ask whether the United States was not so much creating a new reality as responding to one that already had emerged, as I have broadly described above.

The Purpose of the Book

I have provided a context for what is to follow. Scahill and others have raised some profound moral and other questions. In evaluating the foreign policy decisions and behaviors of any country, whether the United States or some other state, there are at least three questions one might ask. First, is it smart, that is, wise in terms of making practical sense in advancing national security and other national interests? Second, is it moral, that is, consistent with basic ethical principles relating to fairness, justice, and humanitarianism? Third, is it legal, that is, compatible with international law (and, one might add, a country’s own domestic law)? All three are somewhat interrelated, although there can be a tension at times in trying to serve all three desiderata. They are all important, legitimate criteria to apply, although I will be focusing particularly on the legal dimension.

In weighing these considerations, we should keep in mind a good definition of “education” – “learning to cope with ambiguity,” ⁸ by which is meant not the absence of truth but rather its complexity. The purpose of this book is to engage students, and the larger public as well, in going beyond simplistic black-and-white depictions of good guys/gals and bad guys/gals in world politics, having them struggle with the increasingly murky nature of war and how the latter relates to ongoing efforts to regulate the use of armed force in human affairs.

Among the kinds of questions to be considered are the following: If U.S. soldiers are now, in Scahill’s words, “shadow warriors,” are they not themselves often up against a shadowy enemy – whether terrorists, guerrillas, rebels, insurgents, warlords, or whatever term one wants to use for an adversary who specializes in “irregular” warfare, what Max Boot has called “invisible armies”? ⁹ How can states fight and win conflicts against the latter, seemingly weaker foes in “asymmetrical warfare” situations and still comply with international humanitarian law when the enemy tries to level the playing field by observing no rules whatsoever? Was the capture and killing of Osama bin Laden, the mastermind of 9/11, legal; and should we care? Under what circumstances is “anticipatory self-defense” legal in a world of weapons of mass destruction (WMDs)? How does humanitarian intervention in places like Kosovo and Libya square with traditional notions of sovereignty? Are suspected terrorists, housed at Guantanamo Naval Base or some other location, entitled to prisoner of war (POW) protection under the Geneva Conventions? When considering the legality of “targeted killings” (“assassinations”?), should a “lawfare” or “warfare” model apply, that is, should someone like Anwar al-Awlaki (the American radical cleric killed by a U.S. drone strike in Yemen in 2011) be treated as a common criminal entitled to a normal jury trial in a court of law or rather as a combatant who can be killed by executive order? How are drone strikes compatible with international humanitarian law? What is the “battlefield” today – for the United States and other countries experiencing threats from al Qaeda...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Part I Introduction: Framing the Puzzle
• Part 2 The Laws of War: What Are the Rules?
• Part 3 The Laws of War: Are They Still Relevant?
• Part 4 Conclusion: The Future of War, Peace, and Law
• Index