I’ve been meaning to comment for a while on the March/April print issue of Foreign Policy (better late than never). For an issue devoted to transformations in the way we fight, what struck me is how completely the authors overlooked the ways in which the trends described relate to the law of war.
Even John Arquilla’s lead article, misleadingly titled “The New Rules of War”, gives no thought whatsoever to the actual moral and legal rule-sets governing war: humanitarian law, the law of armed conflict, and the UN charter regime. It is as if the FP editors sought to create a view of “war” that has nothing to do with “rules” by using a narrative of “war rules” that has nothing to do with norms and laws distinguishing war from murder.
That's a pity, not only because very few military professionals actually think this way, but also because for every single point made in the issue about military doctrine, force structure, civil-military relations or grand strategy, there are important “rules of war” questions that need some serious consideration by thought leaders in the beltway.
Consider Peter Singer’s key insight in his article Meet the Sims And Shoot Them: the growing convergence between the gaming industry, the military, and the recruitment-entertainment complex. The article will scare liberals who worry about their sons joining up to fight in unjust wars, but what could this trend tell us about the avenues for disseminating the laws of war to both soldiers and the general public? Singer has little to say on this, but there is an enormous untapped opportunity here – not only to imbue ordinary Americans with a sense of the genuine moral dilemmas at play in urban warfare, but also to inculcate war law training in the war on terror’s foot soldiers, who spend a great deal of their off-duty time in the field on first person shooters. Both could be accomplished by mainstreaming basic Geneva principles into video games – something you could argue the Army is required to do under international law. To what extent is this occurring? Singer demures.
Then there’s Edward Luttwak’s rant about the timeless virtues of air power – an analysis that would be strengthened by a recognition that it’s the very desire to minimize civilian casualties that has moved the US away from strategic bombing to drone warfare in Central Asia. His proposal that the US militarize the Afghan population anew and back it up with occasional strafing runs suggests a throwback to all that was going wrong in the early years of the Afghan war. Luttwak’s analysis implies that civilian casualty numbers are an unimportant factor in overall mission effectiveness – all that matters to him is whether our aircraft can find targets and are vulnerable to ground fire. But our generals in Afghanistan know better: it's been a long time since the advent of military aviation in 1911, and avoiding civilians actually matters as much as hitting hostiles. This is one reason the US military is now considering a new medal “for soldiers who display ‘courageous restraint' in their use of force to save civilian lives.”
John Arquilla knows better too. His three new “rules of war” are really just “rules of thumb for war-fighting in the 21st century” – but good ones at that (though not all agree): “small is better,” “finding trumps flanking,” and “swarming trumps surging.” What Arquilla doesn’t mention is that his emphasis on decentralizing the military to respond to net-centric warfare both has implications for and would depend on changes in the way the US military disseminates war law to troops. Currently, it is primarily officers who receive training in the Geneva Conventions: enlisted recruits get perhaps a few hours of it during basic and carry around a cryptic booklet based on WW2-era scenarios. A decentralized, “swarming” military disaggregated into small, autonomous groups and trained to operate effectively in urban environments requires a higher level of war law training hammered into service personnel at every rank, and on a regular basis. Domestic law enforcement agencies may in fact have much to teach the military about how to train troops to function in mixed environments.
I could go on. What does Arquilla’s shift toward “finding” mean if the line between war-fighting and intelligence-gathering / crime-fighting has historically been one between the military and civilian government agencies? How does one use existing law to criminalize those who use civilians as shields – a key tactic of what some call “lawfare”? Are explosives a valid tool of war in urban areas any more than we would accept their use by the police to hunt gang members in North American cities? What is the nature of “direct participation in hostilities” in the case of asymmetric warfare?
The nature of what we are calling “war” in the current era is posing a number of challenges for our conventional understanding of international law, and of the distinction between international law and domestic law enforcement. These shifts are certainly as relevant to the revolution in military affairs under discussion as are questions of air power vs. land power, battleships vs. smaller naval craft or whether the US should withdraw from NATO.
I’d like to see Foreign Policy and similar outlets give some serious consideration to the ways in which the trends these authors describe intersect with existing war law – and to what extent the rules of war need to be reconsidered in light of these developments. Otherwise, the message that's being sent is that the real “rules of war” are irrelevant anachronisms rather than constitutive elements of the geo-politico-normative complex that have always evolved to fit the changing times.