International law has come to play an expanded role in the use of force. This expanded role has elevated evolving humanitarian law concepts over the long-standing preference for sovereignty, and has contributed to the state losing its uncontested control over the direction of war. The “state therefore has an interest in reappropriating the control and direction of war.” As Hew Strachan notes, “that is the purpose of strategy.” Arguments about international law are part of diplomacy, and “diplomatic arguments are a means to an end. They are part of a strategy.” For this reason, in the tight relationship between law and politics, law has a Clausewitzian link to war. Competitors such as Russia, who view international law as a weapon, show that “to simply ignore legal argument is to cede a strategy, to concede multiple positions.” To leave legal arguments unchallenged not only cedes strategy, it cedes a guiding hand in the shaping of the strategic operating environment, and perhaps the nature of contemporary strategy itself. As one study of Russian legal manoeuvres on Ukraine concludes, “to shape the legal environment unchecked is to concede that law-fare can adversely shape the battlefield without hindrance from those whose interests are undermined.”
There are several implications for strategy in this changing operating environment. To start, justifications for the use of force are poised to place new obligations on states to intervene for humanitarian reasons. Second, some strategic principles developed during the previous age probably need to be re-examined in light of the new legal operating environment. Finally, the evolving international order raises questions of what it means to win in the current system.
First, the evolving nature of international law is imposing new obligations on the state. Responsibility to Protect (R2P) is a relatively new international concept that emerged out of the United Nations in the aftermath of the wars of the 1990s and the world’s failure to prevent genocidal acts such as the massacres in Bosnia and Rwanda. The Canadian government on behalf of the United Nations in 2000 took up the question of the responsibility for humanitarian intervention and established the International Commission on Intervention and State Sovereignty
(ICISS) to study the matter. In 2001, the ICISS suggested the term “Responsibility to Protect,” in part to avoid the stigma associated with intervention and to stress the new principle’s humanitarian basis. Since then, Responsibility to Protect(R2P) has enlisted many advocates to include US officials such as US Ambassador to the United Nations Samantha Powers, who argued in favour of humanitarian intervention to prevent genocide in her 2002 book, A Problem From Hell.
Responsibility to Protect(R2P) asserts that states have a responsibility to protect their populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. Responsibility to Protect(R2P) holds that “should a state fail to meet this responsibility, the United Nations General Assembly has recommended that the Security Council should step in to provide protection, including by military measures if necessary.” The Responsibility to Protect(R2P) doctrine “overturns established international law that was designed to maintain national jurisdiction free from external intervention.” This means that not only will there probably be more humanitarian operations in the future, but that strategic success will be more difficult to define. It is harder to prove that a military operation has been successful if the objective has been to prevent something, a humanitarian crisis, from happening.
There is a growing expectation that states and alliances will formally incorporate humanitarian law principles into their strategic planning. This has already been explicitly called for by the United Nations under Responsibility to Protect(R2P). The United Nations declared that to uphold Responsibility to Protect(R2P) in practice, member states should declare “atrocity crime prevention and response a national priority, undertake a national risk assessment and articulate
an actionable whole-of-government strategy for both domestic and international policy.” States are not only expected to intervene when necessary in the affairs of other states for humanitarian reasons, they are now also expected to incorporate these humanitarian concerns into the development of their national strategy.
Second, some assumptions and ideas about strategy probably have to be re-examined in light of a legal environment increasingly rooted in humanitarian principles. For example, strategy historian Beatrice Heuser has opined that the Clausewitzian dictum(Means war is a continuation of politics by other means) on compelling an opponent to do our will may not be as suitable for an era when there is less emphasis on crushing an opponent and more emphasis on the post-conflict transition to peace. She questions whether “we would do well to discard the notion derived from Clausewitz that the aims of strategy should be to ‘impose our will’ unilaterally upon the enemy. Even if force is used, what ultimately is needed is the enemy’s willingness to be persuaded to accept a new situation.” German Army General Klaus Naumann also noted in the aftermath of NATO’s Kosovo campaign that “democratic societies that are sensitive to human rights and the rule of law will no longer tolerate the pervasive use of overwhelming military power.”
Finally, international humanitarian law is beginning to address more post-conflict issues. Heuser notes that one of the historical trends in strategy is thinking about strategy in relation to the peace one wants to achieve characterized by the post-1945 shift back to concerns of humanitarian awareness. This raises questions about the ending of conflicts, and what it means to win. For example, “the responsibility to protect implies the responsibility not just to prevent and react, but to follow through and rebuild.” Interventions, justified under humanitarian law, will naturally grow to increasingly emphasize “the traditional just war criteria of jus ad bellum (just cause) and jus in bello (just means), plus the new but relevant complement of jus post bellum (just occupation and outcome).”
New post-conflict obligations raise questions as to what it now means to win in an era when sovereignty is not considered inviolable. The international legal emphasis on humanitarian norms means that in the future there will probably be more humanitarian obligations imposed on military forces. This implies more coalition operations because humanitarian operations require certain levels of mutual agreement and support. Under the still evolving post-Westphalian system, it is probably even less useful to measure success in terms of territory taken or capitals seized. International boundaries and lines on a map mean little to opponents who do not accept the state as a legitimate construct and think in terms of a universal transnational struggle.
The changes in the legal operating environment outlined above compel strategists to consider the growing implications of international law and lawfare. China political analyst Dean Cheng suggests several strategic considerations for the United States Of America(U.S.A.) regarding lawfare. For example, Cheng advises that the United States Of America should try to mesh “legal warfare countermeasures into United States operational planning and training.” Specifically, at “the strategic level, the growing Chinese interest in legal warfare highlights the need to examine new international commitments carefully.” Cheng further warns that “the United States Of America must alter its current legal warfare strategy; no longer can America regard lawfare from a purely defensive stand point. Indeed, offensive legal warfare – whether practiced by the [People’s Republic of China] or by militarily overmatched insurgents – can neutralize United States Of America’s military might while damaging its allies and strategic partners.”
Professor Kittrie also argues for a more creative and innovative integration of lawfare into United States strategy, noting that the 2015 National Security Strategy identifies a number of new security challenges that are decentralized, transcend state borders, involve non-state actors, and “cannot be neutralized using only deterrence or the United States’ traditional kinetic toolbox.” However, neither the United States nor any other state is likely to allow its vital interests to be litigated away. As lawfare continues to expand, the United States probably will be compelled to give more attention to the strategic implications of international law because lawfare is not a phenomenon that is likely to go away, and the United States government’s “lack of a broader and more sophisticated strategy for defensive lawfare and its continued lack of any strategy and structure for offensive lawfare are clearly and unnecessarily self defeating.”
The supplanting of sovereignty by humanitarianism as a central principle of international law has increased the legal justifications for the use of force beyond self-defense, encouraged the growing use of lawfare, loosened the
state’s monopoly on the use of force, decreased the strategic relevance of international boundaries, reduced the utility of overwhelming force as a means of achieving victory, and obscured the gap between war and peace. In the current stage of international legal development, the state must compete with non-state actors that appropriate some of the state’s sovereign authorities but are sometimes less inhibited by humanitarian concerns. Given the shifting nature of a still evolving international legal system, strategists should probably also be mindful of Clausewitz’s warning: “the fact that slaughter is a horrifying spectacle must make us take war more seriously, but not provide an excuse for gradually blunting our swords in the name of humanity. Sooner or later someone will come along and hack off our arms.”
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