Category: International Criminal Law

THE FUTURE OF WAR, by Lawrence Freedman, Public Affairs, 2017, 376 pages, $18.99

Our regular assumption was that the odds of success might be shifted decisively as a result of some new technology. Gunpowder to musket, steam turbines to aircraft, missiles to digital networks, all changed the character of warfare, opening up new possibilities while closing off others. But the technology was rarely monopolized or else, if one side enjoyed superiority, adversaries found ways to limit their effects. Even for modern Western forces, technology encouraged a fantasy of a war that was fast, easy, and decisive: yet still they found themselves facing ‘slow, bitter, indecisive war.’ 

War has a future. It will remain a main staple for states large and small, for non-state actors fighting for an ideology, and for ethnic groups fighting over territory believed to be theirs. Continue reading “Book Review: THE FUTURE OF WAR”

LAW AND MORALITY AT WAR, by Adil Ahmad Haque, Oxford University Press, 2017, 285pgs., $51.53

It is unfortunate that the moral theory of war is so often referred to as “just war theory.” This label suggests that just wars are real things that could be the subject of a theory ­– like politics, decisions, or music. In my view, moral theory should aim to identify and analyze the most serious injustices perpetrated in war. Many of these injustices – such as torture, rape, and enslavement – require little theoretical illumination. In contrast, launching indiscriminate attacks and inflicting disproportionate civilian losses are not, one might say, unjust clearly. What makes an attack “indiscriminate”? What makes civilian losses “disproportionate”? These are the sort of questions that moral theory of war should address. Perhaps a better name for the field would be “unjust war theory.” (p. 2)

I beg to differ.

Just wars are real things and subject to a theory reflected in the applicable laws. The “laws of war,” “law of armed conflict” (LOAC), and “international humanitarian law” (IHL), whichever of the interchangeable labels is your preference (I will use IHL), may at times fall short of the intended purpose, may be imprecise in providing exacting guidance or affording vague margins of discretion to what may seem, semantically, to be malleable standards, and may reflect over-permissiveness of conduct incongruous with moral philosophy’s meaning of justice and the nature of the good life (or the good war). But it is reflective of and in no small measure consistent with the realities faced by those who must apply them in the war theater, as opposed to paradigmatically in a classroom amphitheater. The facilitative aspect of IHL, i.e., that which it aims to achieve – whether viewed from a prohibitive lens or a permissive lens – carries the imprimatur of moral acceptability, however imperfect or unsatisfying. Continue reading “Book Review: LAW AND MORALITY AT WAR  “

THE WAR LAWYERS – The United States, Israel, and Juridical Warfare, by Craig Jones, Oxford University Press, 2020, £80.00

Indeed, one of my central claims has been that ‘our’ use of law – from policy and national level interpretations of our rights and obligations under international law, to their operationalizations, to rules of engagement – does not generally proffer an alternative to military violence. In fact, the prosecution of US and Israeli warfare especially over the last thirty years suggests that the law is also a medium of violence and that a certain form of judicial violence has played no small part in enabling, legitimizing, and in some cases, even extending military violence. (p. 302)

“Are we clear to engage, yes or no? Come on, make a decision.” In the 2015 film Eye in the Sky, a British colonel (Helen Mirren) asks a military lawyer (Jeff Heffernan), as if it is up to him, to make the ultimate call. If he says no – which is not what the colonel wants to hear – then a righteous kill is sacrificed at the altar of legal technicalities, thus deliberately sanctioning the escape of a terrorist to wreak more terror another day. Of course, when called upon to give such legal advice, it is assumed (often wrongly) that the intelligence is right – that the target is what it is claimed to be. But even so, however accurate aerial strikes may have become, there is no avoiding collateral damage. The question often turns on how much collateral damage is acceptable, and moreover, what if the collateral damage ends up being much higher than predicted. Continue reading “Book Review: THE WAR LAWYERS – The United States, Israel, and Juridical Warfare.”