'New rules for new wars' international law and just war doctrine for irregular war.

• Author: Lucas, George R., Jr.
• Position: Divided Loyalties: Professional Standards and Military Duty

This article traces the increasing pressures exerted upon international law and international institutions from two sources: the humanitarian military interventions (and failures to intervene) in the aftermath of the Cold War during the decade of the 1990s; and the "global war on terror" and wars of counterinsurgency and regime change fought during the first decade of the 21st century. Proposals for legal and institutional reform in response to these challenges emerge from two distinct and largely independent sources: a "publicist" or theoretical discussion among scholars in philosophy, law, and international relations; and a formal or procedural discussion among diplomats and statesmen, both focusing upon what the latter group defines as a "responsibility to protect" (R2P). This study coneludes with recommendations for reform of international humanitarian law (or Law of Armed Conflict), and for reformulations of professional ethics and professional military education in allied militaries, both of which will be required to fully address the new challenges of "irregular" or hybrid war.

1. INTRODUCTION II. FIN DE SIECLE: A RETROSPECTIVE RECENT HISTORY OF JUST WAR III. THE RISE OF THE GLOBAL WAR ON TERROR (GWOT) IV. THE NEW RULES FOR NEW WARS V. FROM JUS AD PACEM TO JUS IN PACE VI. FROM JUS IN PACE TO JUS POST BELLUM: HOW LONG TO STAY AND WHEN TO "GO HOME". APPENDIX I. INTRODUCTION

   The new era of "irregular warfare" (IW) is thought to consist primarily of the substantial changes and challenges in military tactics and military technology--the so-called "revolution in military affairs" (RMA). (1) On the one hand, asymmetric warfare, including a variety of types of terrorist attacks involving rudimentary technology, has largely replaced the massive confrontations between opposing uniformed combat troops employing high-tech and heavy-platform weaponry that previously characterized conventional war. (2) On the other, new kinds of "emerging technologies," including military robotics and unmanned weapons platforms, non-lethal weapons, and cyber-attacks, ever-increasingly constitute the tactical countermeasures adopted by established nations in response. (3)

   The era of irregular or unconventional war also, however, requires another revolution--a cultural sea-change that has been much harder to identify, and much slower in coming. This radical cultural shift entails reconceptualizing the nature and purpose of war-fighting, and of the war-fighter. This relatively neglected dimension of RMA requires new thinking about the role of military force in international relations, as well as about how nations raise, equip, train, and, most especially, about the ends for which these nations ultimately deploy their military forces. The new era of IW requires that military personnel develop a radically altered vision of their own roles as warriors and peacekeepers, as well as appropriate recognition of the new demands IW imposes upon the requisite expertise, knowledge, and limits of acceptable conduct for members of the profession of arms. Finally, the new era of IW requires that those institutions and personnel who educate and train future warriors be much more effective in helping them understand and come to terms with their new identity, the new roles they will be expected to play in the international arena, and the new canons of professional conduct appropriate to those roles.

   This essay traces two parallel and independent discussions of the nature of this cultural transformation. The first, which I have attempted to document over the past two decades, consists in the discussion among philosophers, ethicists, political theorists, and international relations scholars concerning the evolution of "just war" doctrine. (4) These discussions exhibit what might be termed "theoretical authority," as contrasted with the "formal" or procedural authority inherent in a second, distinct discussion among diplomats and statesmen regarding the need for a more robust understanding of the role of military force in international affairs. In the aftermath of Rwanda and Kosovo in particular, this second, distinct category of deliberation reflected a widely held conviction that, though the international community had not done nearly enough in Rwanda, we might well have done as much harm as good in Kosovo. (5)

2. FIN DE SIECLE: A RETROSPECTIVE RECENT HISTORY OF JUST WAR

   Shortly after the fall of the Berlin Wall in 1989, during what was heralded as the end of the Cold War in the early 1990s, it became increasingly clear to many of those working in military ethics, international law, and just war doctrine that conventional thinking about the ways in which national military forces were trained and deployed had to be radically reconceived. (6) The impetus for this re-conceptualization came from many quarters, some more well-grounded (in hindsight) than others. The era of superpower nuclear rivalry seemed at an end, and the era of conventional nation-state conflict diminished in importance. Especially in the aftermath of the short and decisive first Gulf War in 1991, it appeared increasingly unlikely that any "rogue nation" would again undertake large-scale conventional military aggression against a neighbor without fear of an overwhelming response by the international community collectively. (7)

   Sadly, the euphoria of what was then triumphantly described by U.S. President George H.W. Bush as the emergence of a "new world order," (8) was supplanted by the growing recognition that the new order consisted largely of a new era of conflict, one that more typically involved the sorts of actions that militaries had hitherto undertaken only rarely and reluctantly. Instead of a stable world order, with violent conflict deterred by the collectivity of nations committed to an orderly rule of law, we had instead entered the era of asymmetric war, humanitarian intervention, peacekeeping, and stability operations--the sorts of conflicts that, at the time, were grouped variously under headings like "police actions" or MOOTW ("military operations other than war"). (9)

   The varied, improvised, highly inconsistent, and inchoate experiences of military interventions for humanitarian or law enforcement and peacekeeping purposes in Somalia, Haiti, Bosnia, East Timor, and, towards the end of that decade, Kosovo, contributed to this realization. Even more telling, however, was the dramatic failure of humanitarian military intervention by the United Nations (U.N.) in Rwanda.

   The questions centered no longer on legal or moral permissions or the legal license to carry out conventional military campaigns of the sort that current international law pertaining to self-defense and collective security exclusively addresses. Instead, the even more troubling question in these new cases was, when should member-nations in the so-called "international community" recognize an obligation to come to the aid of vulnerable nations or victimized populations? (l0) What sets of conditions or criteria would constitute, for example, not so much a "just cause" for going to war, as an overriding obligation to come to the aid of vulnerable victims? And, upon whom would such an obligation fall? (11)

   The answers to such questions were far from clear then, and remain so even today. Especially after the Rwanda debacle, commentators invoked the image of the Kitty Genovese murder in New York City in the 1960s and wondered, by analogy, what sort of "community" the international community was, if its member-states consistently turned a blind and uncaring eye away from such tragic and seemingly avoidable cases of genocide. (12) Professor Stanley Hoffman, Harvard University, first began discussing criteria for what he termed "jus ad interventionem" in the mid-1990s. (13) Hoffman analogized to traditional jus ad bellum, in which he advocated primarily the legal right of individual nations and coalitions to intervene militarily, or otherwise override the prevailing legal principle of national sovereignty, in the face of massive abuses of human rights. (14)

   While his learned analysis of the pending collapse of the traditional nation-state system of sovereignty was respectable, Hoffman's response was not quite rightly put. Instead, my own term at the time was jus ad pacem, stressing the peace-restoring intentions of military intervention, and discussing not the right, but the obligation to undertake such missions, even if reluctantly, in defense of the most basic human rights of vulnerable peoples. (15) Subsequently, the U.S. Secretary of State, Madeline K. Albright, long under intense criticism for her unwillingness to recognize such an obligation during the Rwandan genocide, began to argue for replacing the so-called Weinberger-Powell doctrine (16) governing the resort to military force in America, with what we briefly came to call the "Albright Doctrine." (17) American military might, she asserted, would henceforth be at the disposal of the U.N. and the international community to aid desperate peoples and nations ravaged by state failure and genocide. (18)

   Simultaneously, the eminent just war theorist, Michael Walzer, argued in the preface to the third edition of Just and Unjust Wars that, on the one hand, while nothing concerning conventional war had changed sufficiently to prompt the re-writing or supervening of that classic work, on the other hand, everything else pertaining to justifiable war had changed. (19) In particular, he admitted that humanitarian military intervention--something viewed by him in that earlier work with some suspicion as a marginal military concern, undertaken by traditional nation-states with decidedly mixed motives--now properly occupied center stage in the debate over just war doctrine at the dawn of the new millennium. (20)

   My own concern continued to be that these conversations all remained focused upon permissions to intervene, or the presumed legal right to intervene or...