Modern War and Modern Law


David Kennedy

Professor of Law, Harvard Law School

Suffolk University School of Law

October 2009




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 reasons.


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 and Afghanistan resemble postcolonial and anticolonial conflicts from Algeria to Vietnam.  


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 political deference.  


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 objective?  


            As the 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 everywhere else.  


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 justifiable death.  


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


I.                   So, first, modern war as a legal institution


It 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 government. 


Enemies 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. 


At the same time, war has become a legal institution, the continuation of law by other means.    This doesn’t  mean that everyone always follows the rules – or that everyone even agrees on what the rules are or to interpret them.      


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 life.


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 institution.


II.                Modern law: 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 its pluralism. 


First, antiformalism.


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 natural justice.  


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.  


At the same time, the sharp distinction between war and peace, the need for a “declaration,” even the legal status of “neutral” were abandoned.  The UN Charter replaces the word “war” with more nuanced – and vague – terms like “intervention,” “threats to the peace” or the “use of armed force,” which trigger one or another institutional response.  


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. 


In the process, the modern law of armed conflict became a confusing mix of principles – and counterprinciples, of firm rules and loose exceptions.  Once firm distinctions now melt into air when we press on them too firmly.      


Once “war” itself becomes  “self-defense,” “hostilities,” “the use of force,” “resort to arms,” “police action,” “peace enforcement,” “peace-making,” “peace-keeping, ”  it becomes hard to keep it all straight --- like “chop,” “whip,” “blend” on the kitchen Quisinart.


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 managed strategically.      


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 together. 


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 the US 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.  


III.             Opportunities -- for humanists and military professionals.


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 Justice School 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 enduring. 


Law reminds the military professional of the landscape, and 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.


            Indeed, many military professionals remain suspicious about embracing law as a strategic partner.   When I was in corporate practice, I often saw the same suspicion among businessmen.  Law, they said, was too rigid, looked back rather than forward.   In their eyes, law was basically a bunch of rules and prohibitions – you figure out what you want to achieve, and then, if you have time, you can ask the lawyers to vet it to be sure no one gets in trouble.    But these businessmen were not getting all they could from their legal counsel.   Neither are military commanders – or Presidents – who think of law as a set of formal limits to be gotten around.   


What is difficult for us to realize is that a war machine which used law more strategically might, in fact, be far more violent, more powerful, more, ….well, legitimate.


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. 


IV.              And it is here that we can begin to see the darker side of modern war and modern law. 


[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 strategic possibilities. 


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. 


The dangers inherent in the modern partnership of war and law go beyond bad lawyering, however.  More significant, to my mind, is the loss of critical distance on the violence of war.  


As we all know, the UN Charter prohibited the use of force --- except as authorized by the Charter itself.  Not as authorized by the UN, but as authorized by the Charter.  Like a constitution, the Charter was drafted in broad strokes and would need to be interpreted.  Over the years, what began as an effort to monopolize force has become a constitutional regime of legitimate justifications for warfare. 


This system of principles has legitimated a great deal of warfare.  

Indeed, it is hard to think of a use of force that could not be legitimated in the language of the Charter.  It is a rare statesman who launches a war simply to be aggressive.  There is almost always something else to be said --- the province is actually ours, our rights have been violated, our enemy is not, in fact, a state, we were invited to help, they were about to attack us, we are promoting the purposes and principles of the United Nations.   Something.  


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 unpredictable outcomes?  


[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 responsibility?]


We must recognize that humanitarian idealism no longer provides a standpoint outside the ebbs and flows of political and strategic debate about how to achieve our objectives on the battlefield.  


[Conversing before the court of world public opinion, statesmen not only assert their prerogatives --- they also test and establish those prerogatives through action.   Political assertions come armed with little packets of legal legitimacy --- just as legal assertions carry a small backpack of political corroboration.   As lawyers must harness enforcement to their norms, states must defend their prerogatives to keep them -- must back up their assertions with action to maintain their credibility.   A great many military campaigns have been undertaken for just this kind of credibility -- missiles become missives.]


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.



The pragmatic assessment of wartime violence can be deeply disturbing.  Take civilian casualties.  Of course, civilians will be killed in war.   Limiting civilian death has become a pragmatic commitment -- no unnecessary damage, not one more civilian than necessary.  It is here that we find the military’s public affairs teams preparing the way by explaining that they are entitled to kill --- and expect to kill --- civilians. 


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 me shiver. 


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 now.”


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 empowerment.   



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, your buddies? 


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?”


Here we can begin to see the dangers in turning the old distinction between combatants and civilians into a principle.  The “principle of distinction” – there is something oxymoronic here – either it is a distinction, or it is a principle.


I have learned that if you ask a military professional --- precisely how many civilians can you kill to offset how much risk to one of your own men?  --- you won’t receive a straight answer.   Indeed, at least so far as I have been able to ascertain, there is no background exchange rate for civilian life.  What you find instead are rules kicking the decision up the chain of command as the number of civilians increases, until the decision moves offstage from military professionals to politicians.  You expect more than 50 civilian casualties?  The White House needs to be informed.


As the law in war became a matter of standards, balancing, and pragmatic calculation, the difficult, discretionary decisions were exported to the political realm.  But when they get there, they find politicians seeking cover beneath the same legal formulations.   Judgment, leadership, responsibility is in short supply.


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 just. 


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.  


V. Conclusion


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 evening news. 


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.