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The New Law of War: Legitimizing Hi-Tech and Infrastructural Violence - Thomas W. Smith

The New Law of War: Legitimizing Hi-Tech and Infrastructural Violence - Thomas W. Smith

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Published by Good-Bye Blue-Sky
This article examines how humanitarian laws of war have been recast in light of a new generation of hi-tech weapons and innovations in strategic theory. Far from falling into disuse, humanitarian law is invoked more frequently than ever to confer legitimacy on military action.

New legal interpretations, diminished ad bellum rules, and an expansive view of military necessity are coalescing in a regime of legal warfare that licenses hi-tech states to launch wars as long as their conduct is deemed just.

The ascendance of technical legalism has undercut customary restraints on the use of armed force and has opened a legal chasm between technological haves and have-nots.

Most striking is the use of legal language to justify the erosion of distinctions between soldiers and civilians and to legitimize collateral damage. Hi-tech warfare has dramatically curbed immediate civilian casualties, yet the law sanctions infrastructural campaigns that harm long-term public health and human rights in ways that are now clear.
This article examines how humanitarian laws of war have been recast in light of a new generation of hi-tech weapons and innovations in strategic theory. Far from falling into disuse, humanitarian law is invoked more frequently than ever to confer legitimacy on military action.

New legal interpretations, diminished ad bellum rules, and an expansive view of military necessity are coalescing in a regime of legal warfare that licenses hi-tech states to launch wars as long as their conduct is deemed just.

The ascendance of technical legalism has undercut customary restraints on the use of armed force and has opened a legal chasm between technological haves and have-nots.

Most striking is the use of legal language to justify the erosion of distinctions between soldiers and civilians and to legitimize collateral damage. Hi-tech warfare has dramatically curbed immediate civilian casualties, yet the law sanctions infrastructural campaigns that harm long-term public health and human rights in ways that are now clear.

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The New Law of War: Legitimizing Hi-Tech and Infrastructural Violence
Thomas W. Smith
University of South Florida 
This article examines how humanitarian laws of war have been recast inlight of a new generation of hi-tech weapons and innovations in strate-gic theory. Far from falling into disuse, humanitarian law is invokedmore frequently than ever to confer legitimacy on military action. New legal interpretations, diminished
 ad bellum 
 rules, and an expansive view of military necessity are coalescing in a regime of legal warfare that licenses hi-tech states to launch wars as long as their conduct is deemed just. The ascendance of technical legalism has undercut customary restraints on the use of armed force and has opened a legal chasmbetween technological haves and have-nots. Most striking is the use of legal language to justify the erosion of distinctions between soldiers andcivilians and to legitimize collateral damage. Hi-tech warfare has dra-matically curbed immediate civilian casualties, yet the law sanctionsinfrastructural campaigns that harm long-term public health and humanrights in ways that are now clear.
 As Adam Roberts
 ~
1993–94:134
!
 has noted, strategic and legal analyses of armedconflict have tended to follow separate paths. Comparing two leading surveys,Peter Paret’s
 Makers of Modern Strategy 
 ~
1986
!
 and Michael Howard et al.’s
 The Laws of War 
 ~
1994
!
, one is reminded of what historians call “tunnel history,” in which each discipline draws on its own traditions and assumptions, sealed off from contact with other fields. Fortunately, the wall dividing law and strategy isbeginning to crumble. This is due to the changing character of conflict as wellas new directions in the study of law. The Cold War effectively severed the fields,thwarting moderation in means and paralyzing international legal institutions.Over the past decade, however, innovations in conventional weapons, risingethnic and substate violence, and ensuing debate over intervention have raised anumber of issues that bridge law and strategy. Students of international law havegrown more politically reflective as well through the International Relations
0
International Law and Critical Legal Studies movements.
1
Author’s note: 
 An earlier version of this article was presented at the annual meeting of the International Studies Association in Chicago, February 21–24, 2001. I wish to thank Michael Joseph Smith at the University of Virginiafor his helpful criticism. My thanks also to Deniz ,Senol of Istanbul and New York who provided invaluable researchassistance.
1
See Ku et al.
 ~
2001
!
 on the need for research that bridges law and politics. Briefly, the International Relations
0
International Law movement seeks to leaven the study of international law with insights from IR regarding thebehavior of international actors and the effects of international norms and institutions. Critical Legal Studies focus,broadly, on the politics of law. Students of CLS contend that law reflects and reproduces inequalities in nationaland international society. See Ratner and Slaughter
 ~
1999
!
.
International Studies Quarterly 
 ~
2002
!
 46
, 355–374.
© 2002 International Studies Association.Published by Blackwell Publishing, 350 Main Street, Malden, MA 02148, USA, and 108 Cowley Road, Oxford OX4 1JF, UK.
 
This marriage of disciplines has been particularly revealing with regard to thelaw of war, or “humanitarian law.”
2
The two main instruments of modern human-itarian law, the Geneva Laws, the legal protections afforded specific classes of people in wartime; and the Hague Laws, which govern the overall methods of combat, have long faced political critiques. Many students of international rela-tions echo the tragic words of Cicero: “in time of war, the law falls silent.” Many international lawyers, too, recognize the precariousness of humanitarian law amid the rigors of war. As Hersch Lauterpacht noted in a canonical commentary 
~
1953:382
!
, “if international law is, in some ways, at the vanishing-point of law,the law of war is, perhaps even more conspicuously, at the vanishing-point of international law.” Recent history, however, seems to refute the tragic view. Farfrom disappearing over the horizon, the law of war is invoked more frequently than ever, and, in the area of human rights and war crimes, is expanding viastatute and enforcement. At the same time, the United States and its allies prac-tice a new style of legal warfare—what Schmitt 
 ~
1998
!
 called “
Bellum Americanum 
”—that hinges on precision-guided bombs, standardized targeting, accepted levelsand types of collateral damage, and high bomber flight altitudes. Once consid-ered obstacles to the war effort, military lawyers have been integrated into stra-tegic and tactical decisions, and even accompany troops into battle. Never hasthe conduct of war been so legalistic.The argument advanced here is that the law of war has flourished at the cost of increased artificiality and elasticity. Law has successfully shaped norms andpractices in the areas of warfare furthest from hi-tech tactics. Strides have beenmade, for example, in the 1980 United Nations Convention on Prohibitions orRestrictions on the Use of Certain Conventional Weapons, and the 1997 Con- vention on the Prohibition of Anti-Personnel Mines. For hi-tech states, these arerelatively low-cost laws. But when modern military necessity calls, the law of warhas legitimized violence, not restrained it. New military technology invariably hasbeen matched by technical virtuosity in the law. New legal interpretations, dimin-ished
 ad bellum 
 restraints, and an expansive view of military necessity are coalesc-ing in a regime of legal warfare that licenses hi-tech states to launch wars as longas their conduct is deemed just. The new law of war burnishes hi-tech campaignsand boosts public relations, even as it undercuts customary limits on the use of force and erodes distinctions between soldiers and civilians. Modern warfare hasdramatically reduced the number of direct civilian deaths, yet the law sanctionsinfrastructural campaigns that harm long-term public health and human rights.
Skepticism and the Law of War
E. H. Carr once noted
 ~
1946:170
!
 that students of international affairs wereinclined “to treat law as something independent of, or ethically superior to,politics. ‘The moral force of law’ is contrasted with the implicitly immoral meth-ods of politics. We are exhorted to establish ‘the rule of law,’ to maintain ‘inter-national law and order’ or to ‘defend international law’; and the assumption ismade that, by so doing, we shall transfer our differences from the turbulent political atmosphere of self-interest to the purer, serener air of impartial justice.”
2
Other interdisciplinary efforts are afoot. The Center on Law, Ethics and National Security at Duke University 
~
 www.lens.law.duke.edu
!
, the International Institute of Humanitarian Law 
 ~
 www.iihl.org
!
, and the American Bar Association Standing Committee on Law and National Securit
 ~
 www.abanet.org
0
natsecurity 
!
 sponsor seminars formilitary lawyers and legal and other scholars. The Carnegie Council on Ethics and International Affairs
 ~
 www.cce-ia.org
!
 has brought together faculty from U.S. service academies and universities to weigh moral issues surroundingthe use of military force. The annual Joint Services Conference on Professional Ethics
 ~
 www.usafa.af.mil
0
 jscope
!
,organized by the U.S. Air Force Academy, is also an important forum for these matters. The International Com-mittee of the Red Cross
 ~
 www.icrc.org
!
 and Human Rights Watch
 ~
 www.hrw.org
!
 are among a number of NGOs that deal with human rights and humanitarian law.
356
 The New Law of Wa
 
Most international lawyers reject this kind of “realist” skepticism, althoughmany others readily concede that politics play a significant role in shaping thestructure and content of law 
 ~
see Byers, 2000: introduction
!
. Louis Henkin
 ~
1979:32
!
suggested that international law reflected “prevailing political forces within thepolitical system.” In a barb at the sociology of law, Geoffrey Best 
 ~
1994:377–378
!
argued that culturally specific practices had been presumed into universal doc-trine. Other political leanings in the law are now widely recognized: the WorldTrade Organization’s vigilant defense of intellectual property—the all-important “content” of the information age—but its laissez-faire attitude toward sweatshoplabor; the exclusive role accorded the Security Council in convening ad hoc warcrimes tribunals; the tendency for Goliath states to interpret legal obligations inlight of their interests. No longer is international law viewed as a “closed universeof norms,” divorced from the social and political milieu in which they appear
~
see Hoffmann, 1965:123
!
.More thoroughgoing skeptics of the school of Critical Legal Studies claim that international legal institutions are molded to serve the interests of dominant states. Just as international law in the nineteenth century buttressed the Euro-pean Concert system and, later, imperialism, law continues to confer privilegeson powerful countries
 ~
Gathii, 1998
!
. This is a far cry from legalists and realistsdutifully debating the utility of international law under anarchy. Critical theoristsfind law very effective, but contend that the logic and coherence we ascribe tolaw actually mirror political interests. Law shapes the popular perception of anact by imbuing it with the “psychic trappings” of legality, reinforcing a chimeraof shared values and international society and cultivating a sense of obligation tothe “civilized” order. The law lends an air of naturalness or inevitability to theexisting hierarchy of power, wealth, and moral capital. These inequalities arethen “reinscribed” into the law 
 ~
af Jochnick and Normand, 1994a:57
!
.Much of critical legal theory targets the symbiosis between international law and state sovereignty. As Phillip Trimble has noted
 ~
1990:833
!
, “A quick look at the ‘rules’ of international law shows why governments love
 @
it 
#
. . . .
 @
I
#
nternation-al law confirms much more power and authority than it denies.” It codifiessovereignty, upholds territorial and border controls, economic, regulatory andtax sovereignty, control over airspace, sea-lanes, natural resources, offshore andcontinental shelves, and so on. As globalization blurs the line between domesticand foreign politics, much of international law maintains the separateness of these spheres, denying standing to nonstate actors, and smuggling reasons of state and particular conceptions of legitimacy into seemingly universal rules. Thesame can be said of any international organization or legal regime that pits theinterests of sovereign states against the aspirations of cosmopolitans and NGOs.The use of law to validate the practices of sovereign states is perhaps most clear with regard to the laws of war. In a critical history of humanitarian law,Chris af Jochnick and Roger Normand argue
 ~
1994a:50–51
!
 that the “structuredimpotence” and “permissive language” of black-letter laws of war have lent a“façade of legitimacy” to existing wartime practices. “The laws of war have beenformulated deliberately to privilege military necessity at the cost of humanitarian values.” The Lieber Code
 ~
1863
!
, adopted during the American Civil War and thefirst formal inventory of rules of engagement, set the tone: “To save the country is paramount to all other considerations”
 ~
 Art. 5
!
; “Military necessity admits of alldirect destruction of life or limb of armed enemies, and of other persons whosedestruction is incidentally unavoidable”
 ~
 Art. 15
!
; “The more vigorously wars arepursued, the better it is for humanity”
 ~
 Art. 29
!
. af Jochnick and Normandconclude
 ~
1994a:55
!
 that legal warfare has
 not 
 been more humane than illegal warfare. Progress in humanitarian law is a fiction. “The development of a moreelaborate legal regime has proceeded apace with the increasing savagery anddestructiveness of modern war.”
Thomas W. Smith
 357

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