Post Date: September 22, 2006
International law professor David Kennedy was a conscientious objector during the Vietnam era, but during his early years teaching at Harvard Law School he realized it was time to rethink his position on the valid use of military force.
"While teaching in the 90's I encountered lots of liberal and progressive students who wanted to use the military in creative ways, in places like Bosnia and Darfur --- and there were lots of students with military backgrounds who confounded my early image of what the military was all about. I needed to rethink."
Kennedy said his students had a profound impact on his thinking. The result is the provocative new book, "Of War and Law" (Princeton University Press), a cautionary tale of what can go wrong when military leaders and outside observers use legal language as a substitute for independent ethical thinking.
Kennedy traces the evolving relationship of law and warfare as the boundaries between war and peace have grown steadily less distinct. In an age of terrorism and Middle East strife, modern wars have no clear beginning and rarely have an end. Instead, they simmer in a stew of constant threat where troops in the same time and place operate as soldiers, police, intelligence gatherers and peacekeepers.
Traditionally, he explains, law has been used to exert outside humanitarian pressure on the military through treaties that limit the use of heinous weapons and ensure the humane treatment of prisoners. But in recent years, law has become a pervasive tool within the military itself, governing everything from the actions of independent contractors to determining what type of force is permissible in enforcing a U.N. resolution.
"Meanwhile, law has become the measure of what constitutes justifiable warfare. It is how we determine whether the use of force is legitimate and defensible," said Kennedy. "Whether this is ultimately a positive or a negative development remains to be seen," he says. "However, on balance, most people have underestimated the dark sides of bringing law to warfare and overemphasized its humanitarian potential."
"When it works well, law provides a way to talk across cultures about the use of force. When it is used poorly, all parties feel their actions are justified and no one feels it was their judgment that has caused people to die. Good legal arguments can cause people to lose their moral compass and sense of responsibility."
When asked how he would like his book to be used, Kennedy didn’t hesitate: "I would like to see this book widely read in military academies and divinity schools. I would like the military students to better understand how lawyers might play a role in warfare. And for those outside the military who have humanitarian interests, I would like them to understand the limits of using law to achieve that objective."
A fuller review of Kennedy's book will be featuerd in an upcoming issue of the Harvard Law Bulletin.