Modern War and
Professor of Law, Harvard Law School
School of Law
Many thanks. It is a pleasure to be here and I’d like to thank you for the opportunity.
People who write about war
generally end up writing about the wars of their own place and time.
The wars of our time and this country have been varied. We have fought a cold war, postcolonial wars, and innumerable metaphoric wars on things like
“poverty” and “drugs.” Our military
has intervened here and there for
various humanitarian and strategic
The war on terror has partaken of
all these. When framed as a clash of
civilizations the war on terror is reminiscent of the Cold War. The wars in Iraq
resemble postcolonial and
anticolonial conflicts from Algeria
As a signal of political energy and focus, the broad phrase "war on
terror" echoed metaphoric and
cultural wars on things like drugs and
poverty. As such, the “global war on
terror” disparaged our enemy by identifying him – them/it – with stigmatized
tactics. Perfidy. The killing of innocents.
It is not new to frame a war in a
rhetoric of distinction. Indeed,
whenever we call what we are doing war, we stress its discontinuity from
the normal routines of peacetime and
sharpen our collective identity against a common enemy. When the sword triumphs over the pen, our
differences should be set aside – along with the normal budgetary constraints
of peacetime. This is serious, important
– a time of extraordinary powers and
In war, we are also legally
privileged to kill. To shoot a man – or
a woman – on the battlefield is not murder.
Different rules apply.
But when do those rules apply –
where does war begin and end? And what, exactly, is “perfidy” – or “terror”
– or “torture?” Which civilians are
innocent? And when can civilians,
innocent or not, be killed, their deaths “collateral” to a legitimate military
vernacular for making these distinctions has become more important, the
distinctions themselves have come unglued.
War and peace flow into one
another, even as we continue to insist on the difference between civilian and combatant, battlefield and
Law is the instrument both for
asserting the distinctiveness of warfare and
for merging it with the routines of peace.
In this, war has become a legal institution – as we will see, for good and ill.
Legal questions have been at the
center of debates about our twenty-first century wars. This afternoon, I’d like to step back from
these immediate controversies, to explore three ideas.
First, modern war as a legal
institution. Once a bit player in
military conflict, law now shapes the institutional, logistical and physical landscape
of war. No longer standing outside judging and
channeling the use of force, law has infiltrated the military profession, and become -- for parties on all sides of even the
most asymmetric confrontations -- a political and
ethical vocabulary for marking legitimate power and
Second, modern law is surprisingly fluid. International law is no longer an affair of
clear rules and sharp
distinctions. Law today rarely speaks
clearly, or with a single voice. In
self-defense, we grant the most permissive rules of engagement. At the same time, all sides assess their
adversaries by the strictest standards.
Indeed, as law became an ever more
important yardstick for legitimacy, legal categories became far too spongy to
permit clear resolution of the most important questions – or became spongy
enough to undergird the experience of self-confident outrage by parties on all
sides of a conflict.
And finally, I’d like to explore the
opportunities and dangers opened up
by war as a modern legal institution.
When things go well, the modern law of war can provide a framework for
talking across cultures about the justice and
efficacy of wartime violence. More
often, I am afraid, the modern partnership of war and
law leaves all parties feeling their cause is just and
no one feeling responsible for the deaths and
suffering of war. Good legal arguments
can make people lose their moral compass and
sense of responsibility for the violence of war
modern war as a legal institution
is now a commonplace to observe that the Second World War is no longer the
prototype for war itself. Wars today are rarely fought between
equivalent nations or coalitions of great industrial powers. They occur at the peripheries of the world
system, among foes with wildly different capacities. The military trains for tasks far from
conventional combat: local diplomacy, intelligence gathering, humanitarian
reconstruction, urban policing, or managing the routine tasks of local
are dispersed and decisive
engagement is rare. Battle is at once intensely local and global in new ways. Violence follows patterns more familiar from
epidemiology or cultural fashion than military strategy. And, of course, the whole thing happens in
the glare of the modern media.
War is a legal institution first simply because it has become a
profession and a extension of
government. Officers discipline their
force and organize their operations
with rules. At the same time, the military
is linked to the nation’s commercial life, integrated with the rest of the government
and covered by the national and international media.
Some years ago, before the current
war in Iraq, I spent some
days on board the USS Independence in the Persian
Gulf – nothing was as striking about the military culture I
encountered there as its intensely regulated feel. Five thousand
sailors, thousands of miles from
base, managing complex technologies and
weaponry, constant turnover and
flux. It was absolutely clear that even
if I could afford to buy an aircraft carrier, I couldn’t operate it – the
carrier, like the military, is a social system, requiring a complex and entrenched culture of standard
practices and shared experiences –
rules and discipline.
Mobilizing “the military” means setting thousands of units forth in a coordinated way. Public and
private actors must be harnessed to common action. Coalition partners must be brought into a
common endeavor. Delicate political
arrangements and sensibilities must
be translated into practical limits – and
authorizations – for using force.
Operating across dozens of
jurisdictions, today’s military must also comply with innumerable local,
national, and international rules. If you want to screen banking data in Belgium, or hire operatives in Pakistan or refuel your plane in Kazakhstan, you
need to know the law of the place.
Baron de Jomini famously defined
strategy as “the art of making war upon the map.” Maps are not only representations of physical
terrain – they are also legal constructs.
Maps of powers, jurisdictions, liabilities, rights and duties.
Law is perhaps most visibly part of military
life when it privileges the killing and
destruction of battle. If you kill this
way, and not that, here and not there, these people and not those – what you do is privileged. If not, it is criminal. And the war must itself be legal. Domestically, that means within the President’s
constitutional authority as Commander
in Chief. Internationally, it means in
compliance with the UN Charter and
not waged for a forbidden purpose, like “aggression” or “genocide.”
Moreover, if war remains, as
Clausewitz taught us, the continuation of politics by other means, the politics
continued by warfare today has itself been legalized. The sovereign no longer stands alone, deciding the fate of empire – he stands rather atop a complex bureaucracy, exercising
powers delegated by a constitution, and
shared out with myriad agencies, bureaucracies and
private actors, knit together in complex networks that spread across
borders. Even in the most powerful and well-integrated states, power today lies in the
capillaries of social and economic
Political leaders act in the shadow
of a knowledgeable, demanding,
engaged and institutionally
entrenched national and global
elite. Law has become the common
vernacular of this dispersed elite, even as they argue about just what the law
permits and forbids.
So much for war as a legal
antiformalism and legal pluralism
Before considering the
opportunities – and dangers – opened
up by the legalization of war, we need to understand
two aspects of modern law: its antiformalism and
Two hundred years ago, international
law was rooted in ethics – to think about the law of war was to meditate on
considerations of right reason and
One hundred years ago, law had
become far more a matter of formal rules, de-linked from morality and rooted in sovereign will. Law stood outside the institutions it
regulated, offering a framework of sharp distinctions and
formal boundaries. War and peace were legally distinct, separated by a
formal “declaration of war.”
In this spirit, lawyers wrote rules
distinguishing combatants from non-combatants, belligerents from neutrals. As late as 1941, it seemed natural for the United States to begin a war with a formal
declaration, as Congress did in response to Pearl Harbor.
In the lead-up to both world wars, the United States carefully guarded our
formal status as a “neutral” nation until war was declared. [That Japan
attacked the United States
without warning—and without declaring
war—in violation of our neutrality was a popular way of expressing outrage
at the surprise attack.]
Humanitarian voices supported the
legal separation of war and peace, and they often continue to insist on the sharp
distinction between civilian and
combatant. For good or ill, however, war
is no longer ethically – or legally – so distinct.
Ethical absolutes, let loose on
matters of war and peace, can be
dangerous -- getting us into things on which we are not able to follow through,
or focusing our attention in all the wrong places.
In an effort to become more
practical or more pragmatic, humanitarians sought to modernize the law of war
--- to get inside the thinking of the military profession, translating their
ethical worries into a workable wartime vernacular.
The International Committee of the
Red Cross prides itself on its pragmatic relationship with military
professionals. ICRC lawyers worked with the military to
codify rules the military could live with – wanted to live with. No exploding bullets. Respect for ambulances and medical personnel, and
so forth. Of course, reliance on
military acquiescence limited what could be achieved, while narrowly drawn
rules permit a great deal --- and
legitimate what is permitted.
As a result, the detailed rules of The Hague or Geneva
Conventions were transposed into broad standards
--- like “proportionality” --- that call for more contextual assessments, and can be printed on a wallet-sized card for
soldiers in the field. “The means of war
are not unlimited,” “each use of force must be necessary” --- these have become
ethical baselines for a universal modern civilization.
This did not happen in a vacuum –
it was part of a widespread loss of faith in the formal distinctions of
classical legal thought – in the wisdom, as well as the plausibility, of
separating law sharply from politics.
Indeed, the modern law of force represents a triumph for grasping the
nettle of costs and benefits and infiltrating the background decision-making of
those whom it would bend to humanitarian ends.
The result was a new, modern law in war.
Indeed, law now offers the rhetorical
– and doctrinal -- tools to make and unmake the distinction between war and peace, allowing the boundaries of war to be
Take the difficult question – when
does war end? The answer is not to be
found in law or fact – but in strategy. Declaring
the end of hostilities might be a matter of election theater or military
assessment. Just like announcing that
there remains “a long way to go,” or that the “insurgency is in its final
throes.” We should understand these statements as arguments. As messages – but also as weapons. Law – legal categorization – is a
communication tool. And communicating
the war is fighting the war.
This is a war, this is an
occupation, this is a police action, this is a security zone. These are insurgents, those are criminals,
these are illegal combatants, and so
on. All these are claims with
audiences, made for a reason. Increasingly,
defining the battlefield is not only a matter of deployed force – it is also a
rhetorical and legal claim.
Law provides a vernacular for
making such claims about a battlespace in which all these things are mixed up
Troops in the same city are fighting and
policing and building schools. Restoring water is part of winning the war --
the continuation of combat by other means.
Private actors are everywhere -- insurgents who melt into the mosque,
armed soldiers who turn out to work for private contractors. Freedom fighters dressed as refugees,
special forces operatives dressing like natives, private contractors dressing
like Arnold Schwarzenegger, and all
the civilians running the complex technology and
logistical chains “behind” modern warfare.
Who is calling the shots? At one
point apparently the Swiss company backing up life insurance contracts for
private convoy drivers in Iraq
imposed a requirement of additional armed guards if they were to pay on any
claim, slowing the whole operation.
In the confusion, we want to insist
on a bright line. For the military,
after all, defining the battlefield defines the privilege to kill. But aid agencies also want the guys digging
the wells to be seen as humanitarians, not post-conflict combatants –
privileged not to be killed. Defining
the not-battlefield opens a “space” for humanitarian action.
When we use the law strategically,
we change it. The Red Cross changes
it. Al Jazeera changes it. CNN changes it --- and
administration changes it.
Humanitarians who seize on vivid images of civilian casualties to raise
expectations about the accuracy of targeting are changing the legal
fabric. When an Italian prosecutor
decides to charge CIA operatives for their alleged participation in a black
operation of kidnapping and
rendition, the law of the battlefield has shifted.
As a result, strange as it may
seem, there are now more than one laws of armed conflict. Different nations – even in the same
coalition – will have signed onto different treaties. The same standards
look different if you anticipate battle against a technologically superior foe
– or live in a Palestinian refugee camp in Gaza.
Although we might disagree with one
or the other interpretation, we must recognize that the legal materials are
elastic enough to enable diverse interpretations.
Amnesty International called
Israeli attacks on Hezbollah two years ago “war crimes that give rise to
individual criminal responsibility.” Israel rejected
the charge that it “acted outside international norms or international
legality” and insisted that “you are
legally entitled to target infrastructure that your enemy is exploiting for its
military campaign.” Who will judge?
On the international stage, there
is only the Court of World Public Opinion. As a lawyer, advising the military
about the law of war means making a prediction about how people with the power
to influence our success will interpret the legitimacy of our plans. What will our allies or our own citizenry
say? If we will need the cooperation of
citizens in Iraq, or Lebanon or Pakistan, what will they have to
say. We have seen the cost in political
legitimacy and international
cooperation that comes when we play by rules others don’t recognize.
for humanists and military
It is easy to understand the
virtues of a powerful legal vocabulary, shared by elites around the world, for
judging the violence of warfare. It is
exciting to see law become the mark of legitimacy as legitimacy has become the
currency of power.
It is more difficult to see the
opportunities this opens for the military professional to harness law as a
weapon, or to understand the dark
sides of war by law.
But the humanist vocabulary of international
law is routinely mobilized by as a strategic asset in war. The American military have coined a word for
this: “lawfare¨ ---- law as a weapon, law as a tactical ally, law as a
strategic asset, an instrument of war.
Law can often accomplish what we
might once have done with bombs and
missiles: seize and secure
territory, send messages about resolve and
political seriousness, even break the will of a political opponent. When the military buys up commercial
satellite capacity to deny it to an adversary – contract is their weapon. They could presumably have denied their
adversary access to those pictures in many ways. When the United States uses the Security
Council to certify lists of terrorists and
force seizure of their assets abroad, they have weaponized the law. Those assets might also have been
immobilized in other ways.
It is not only the use of
force that can do these things. Threats can sometimes work. And law often marks the line between what
counts as the routine exercise of one’s prerogative and
a threat to cross that line and
exact a penalty.
This will take some getting used
to. How should we feel when the military
“legally conditions the battlefield” by informing the public that they are entitled
to kill civilians, or when our political leadership justifies warfare in the
language of human rights?
We need to remember what it means
to say that compliance with international law “legitimates.” It means, of course, that killing, maiming,
humiliating, wounding people is legally privileged, authorized, permitted, and justified.
In 1996, I traveled to Senegal
as a civilian instructor with the Naval
to train members of the Senegalese military in the laws of war and human rights.
[At the time, the US
military was the world’s largest human rights training institution, operating
in 53 countries, from Albania
to Zimbabwe] As I recall it, our training message was
clear: humanitarian law is not a way of being nice. Compliance will make your force interoperable
with international coalitions, suitable for international peacekeeping
missions. [To work with us, use our
weapons, your military culture must have parallel rules of operation and engagement to our own.]
Most importantly, we insisted, humanitarian
law will make your military more effective -- something you can sustain and proudly stand
behind. There is something chilling
here --- what does it mean to build a culture of violence one can “proudly stand behind?”
The idea is that an act of violence
one can disclose and be proud of is
ultimately stronger, more, legitimate.
If you want to play on the international stage, you need to be ready to
have CNN constantly by your side. You
must place an imaginary CNN webcam on your helmet, or, better, just over your
shoulder. Not because force must be
limited and not because CNN might
show up -- but because only force which can imagine itself to be seen can be
Law reminds the military professional of the
of the views, powers and vulnerabilities
of all those who might influence the space of battle. And
of course not everyone watching CNN will react the same way. Indeed, as a soldier, you must reckon with
the fact that everything you do will be regarded – and
judged – by many audiences.
This can be invigorating, enhancing your
strategic vision – or it can be profoundly disorienting.
Savvy business clients do not treat
the law as static – they influence it.
They forum shop. They structure
their transactions to place income here, risks there. They internalize national regulations to
shield themselves from liability. They
lobby, they bargain for exceptions.
Like businessmen, military planners
routinely use the legal maps proactively to shape operations. When fighter jets scoot along a coastline,
build to a package over friendly territory before crossing into hostile
airspace, they are using the law strategically – as a shield, marker of safe and unsafe.
And it is here
that we can begin to see the darker side of modern war and
[The role of American lawyers
assessing the Bush administration’s approach to the treatment of detainees
illustrates the difficulties. I confess
I shuddered when I read the legal memoranda
provided to our civilian and
military leadership by the lawyers at the justice department. However tightly reasoned their conclusions,
this was legal advice tone deaf to consequences and
Our best legal minds had analyzed
the legality of the President’s proposed course of action as if this were
something one could look up in a text and
interpret with confidence. But we know
that what can be done with words on paper can but rarely be done in the world
of real politics and war.
A parallel process has eroded the
firewall between civilian and
military targets --- it is but a short step to what the military terms “effects
based targeting.” And why shouldn’t military operations be judged by
their effects, rather than by their adherence to narrow rules that might well
have all manner of perverse and
[Indeed, during the NATO bombardment
of Belgrade, I
was struck by discussions about targeting the civilian elites supporting the
Milosevic regime. If bombing the
bourgeoisie would have been more effective than a long march inland toward the capital, would it have been
proportional, necessary -- humanitarian -- to place the war’s burden on young
draftees in the field rather than upon the civilian population who sent them
there? Might not targeting civilians
supporting an outlaw -- if democratic -- regime extend the Nuremberg principle of individual
The surprising thing is the extent
to which even opponents in today’s asymmetric conflicts argue about tactics in
a parallel vernacular – in Lebanon, everyone was citing UN resolutions and claiming their tactics were proportional, their
opponents’ perfidious. We should not be
surprised to find various Palestinian factions differentiated by their
interpretation of legitimate targets – Israeli civilians or only soldiers, in
the territories or in Israel
proper, and so forth.
You may remember Major General
James Mattis, poised to invade Falluja a few years ago, concluding his demand that the insurgents stand
down with these words:
“We will always be humanitarian in
all our efforts. We will fight the enemy
on our terms. May God help them when we’re
done with them.”
I know I shivered at his juxtaposition of humanitarian
claims and blunt threats.
We need to understand how this sounds – particularly when the law of
armed conflict has so often been a vocabulary used by the rich to judge the poor. When the Iraqi insurgent quoted on the same
page of the New York Times as Mattis threatened to decapitate civilian hostages
if the coalition forces did not withdraw, he was also threatening innocent
civilian death --- less of it actually --- but without the humanitarian
promise. And, of course, he also made
When the poor deviate from the best
military practices of the rich, it is tempting to treat their entire campaign
as illegitimate. But before we jump to
the legitimacy of their cause, how should we evaluate the strategic use of
perfidy by every outgunned insurgency battling a modern occupation army?
From an “effects-based”
perspective, perfidious attacks on our military – from mosques, by insurgents
dressing as civilians or using human shields – may have more humanitarian
consequences than any number of alternative tactics the insurgents may have
used. Perhaps more importantly, they
are very likely to be interpreted by many as reasonable responses by a
massively outgunned, but legitimate force.
Indeed, even our own troops typically respond in at least two
registers. In the first, it is all
perfidy – the insurgents are barely recognizable as human, understand only force, know no boundaries. But we also find a common recognition that,
as one soldier put it “what would I do if this were my town? How would I fight – probably just as they are
At the same time, the legitimacy of wartime violence is all mixed up
with the legitimacy of the war itself.
It is in this atmosphere that discipline has broken down in every
asymmetric struggle, when neither clear rules nor broad standards of judgment seem adequate to moor one’s
ethical sense of responsibility and
Technological asymmetry and
legal pluralism leave everyone uncertain what, if any, rules apply their own
situation. Everyone has a CNN camera on
their shoulder – but who is watching -- the enemy, the civilians, your family
at home, your commanding officer,
Soldiers, civilians, media commentators, politicians, all begin to lose
their ethical moorings. We can surely
see that it will be hard for any Iraqi – or Lebanese – mother to feel it was
necessary and proportional to kill
her son. “Why,” she might well demand to know, “when America is so powerful and strong did you need to kill my husband?”
In the early days of the Iraq war,
coalition forces were certainly frustrated by Iraqi soldiers who advanced in
the company of civilians. A Corporal
Mikael McIntosh reported that he and
a colleague had declined several times to shoot soldiers in fear of harming
civilians. “It’s a judgment call.” he
said, “if the risks outweigh the losses, then you don’t take the shot.” He offered an example: “There was one Iraqi
soldier, and 25 women and children, I didn’t take the shot.”
His colleague, Sergeant Eric
Schrumpf chipped in to describe facing one soldier among two or three
civilians, opening fire, and killing
civilians: “We dropped a few civilians,
but what do you do. I’m sorry, but the chick was in the way.”
There is no avoiding decisions of
this type in warfare. The difficulty
arises when humanitarian law transforms decisions about whom to kill
into judgments. When it
encourages us to think the chick’s death resulted not from an exercise of human
freedom, for which a moral being is responsible, but rather from the abstract
operation of professional principles.
We know there are clear cases both
ways – destroying the village to save it, or minor accidental damage en route
to victory – but we also know that the principles are most significant
in the great run of situations that fall in between. What does it mean to pretend these decisions
are principled judgments? It can mean a
loss of the experience of responsibility – command
responsibility, ethical responsibility, political responsibility.
I was struck that Iraq war
reporting was filled with anecdotes about soldiers overcome by remorse at
having slaughtered civilians --- and
being counseled back to duty by their officers, their chaplains, their mental
health professionals, who explained that what they had done was necessary,
proportional, and therefore
Of course, if you ask leading
humanitarian law experts how many civilians you can kill for this or that, you
will also not get an answer. Rather than
saying “it’s a judgment call,” however, they are likely to say something like
“you just can’t target civilians” --- thereby refusing to engage in the
pragmatic assessments necessary to make that rule applicable in combat.
In psychological terms, it is hard
to avoid interpreting this pragmatism-promised-but-not-delivered as anything
other than denial. A collaborative
denial --- by humanitarians and
military lawyers --- of their responsibility for the decisions inherent in war.
Indeed, the greatest threat posed
by the merger of law and war is loss
of the human experience of moral jeopardy in the face of death, mutilation and all the other horrors of warfare.
Let me conclude. War has become a legal institution. Law has become a flexible strategic
instrument for military and
humanitarian professionals alike.
As such, law may do more to legitimate than
restrain violence. It may accelerate the
vertigo of combat and contribute to
the loss of ethical moorings for people on all sides of a conflict.
We modernized the law of war to
hold those who use violence politically responsible. That is why we applaud law as a global
vernacular of “legitimacy.”
Unfortunately, however, the
experience of political responsibility for war has proved elusive. Recapturing a politics of war would mean
feeling the weight of the decision to kill or let live. Most professionals flee from this
experience. But citizens flee from this
experience as well. We have all become
adept in the language of war and
law. We all yearn for the reassurance of
an external judgment --- by political leaders, clergy, lawyers and others – that what we have gotten up to is, in
fact, an ethically responsible national politics.
In a sense, the commander who offloads responsibility for warfare to the
civilian leadership is no different than the foot soldier who blames the officers,
the lawyer who fault the rules, or the citizen who repeats what he heard on the
Clausewitz was right --- war is the
continuation of political intercourse.
When we make war, humanitarian and
military professionals together, let us experience politics as our vocation and responsibility as our fate.
Thank you –
I look forward to your comments.