Academic journal article Emory Law Journal

The Emerging Law of 21st Century War

Academic journal article Emory Law Journal

The Emerging Law of 21st Century War

Article excerpt

I am honored to deliver this Lecture in honor of Randolph W. Thrower, a lawyer of great distinction and integrity. It is also my pleasure to open this important symposium on redefined national security threats. This symposium explores the tensions, complementarities, and legal implications of three rapidly evolving areas of national security: cybersecurity, new technologies, and crossborder security.

I propose to talk today about the "umbrella issue" that spans all of these topics: the emerging law of twenty-first century war. I bring to this discussion four different perspectives: thirty-five years as an international law professor, twenty years as a human rights lawyer, ten years in the U.S. government, and five years as a law school dean. In each of these roles, I have focused on the process and substance of transnational law, what I will call in shorthand "transnational legal process" and "transnational legal substance." By "transnational legal process," I mean the complex process of interaction, interpretation, and norm-internalization by which transnational law is made in the twenty-first century.1 By "transnational legal substance," I mean the substantive law that emerges from that complex interactive process.2

The core idea that drives this transnationalist jurisprudence is that international law and domestic law are no longer artificially divided. The substance that is emerging is a body of hybrid, "transnational public law," rooted in shared public norms that have a similar meaning in every national system around the world. There are certain hybrid concepts, like the metric system or the term "," that are not clearly either international or domestic in character. In the same way, the ideas of "cruel, inhuman, or degrading treatment," "civil society," the "internally displaced," and "transborder trafficking" are now transnational public law concepts, inasmuch as they now have a shared meaning in every domestic legal system.

In many ways, the most discussed, but least understood, of these evolving bodies of transnational public law is the emerging law of armed conflict. This lecture asks: What exactly is the emerging law of the twenty-first century war? That question breaks into three, which organize this lecture. First, what basic rules govern these twenty-first century tools? Second, what principles of law are emerging in particular areas of modern armed conflict, namely, interrogation, detention, special operations, drones, robots, cyber war, and private security contractors? Third, how are these emerging law of war principles implicated by the great crisis of today, Syria, which raises such intertwined issues as mass migration, humanitarian intervention (or Responsibility to Protect "R2P"),3 and the crime of aggression?

I. The Basic Rules

In recent years, a whole new range of tools have emerged to address the exigencies of twenty-first century war, among them cyber conflict, drones, special operations, private security contractors, and semi-autonomous robots. But to what extent are these modern tools of war governed by law at all? Centuries ago, Cicero famously wrote, "silent enim leges inter arma," namely, in wartime "when arms speak, the laws fall silent."4 But is this really true with respect to twenty-first century armed conflict?

After September 11, 2001, many asked a modern variant of Cicero, what I call "the Tina Turner question": "What's law got to do with it? What's law, but a sweet old-fashioned notion?" Because, in one scholar's ironic words, this was a "war like no other,"5 some suggested such an existential crisis demanded that law be abandoned. One argument sometimes heard was that the rapid changes in the way we conduct modern war against Al Qaeda and its associated forces- for example, Guantanamo, military commissions, or cyber war-should be evaluated in a black hole, or law-free zone, because there can be no law to apply to military tactics and technologies that never previously existed. …

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