International Law and Military Strategy: Changes in the Strategic Operating Environment

By Rousseau, Kevin | Journal of National Security Law & Policy, January 1, 2017 | Go to article overview

International Law and Military Strategy: Changes in the Strategic Operating Environment


Rousseau, Kevin, Journal of National Security Law & Policy


Introduction

"The power of law is that it legitimizes power."

- Ganesh Sitaraman, "The Counterinsurgent 's Constitution: Law in the Age of Small Wars," 17.

Strategy, the British military historian Hew Strachan reminds us, "is a profoundly pragmatic business: it is about doing things, about applying means to ends."1 Before doing things-before getting to effective action-strategists must first understand the operating environment in which they are acting. International law is part of that strategic operating environment. International law is undergoing a period of transition marked in part by greater emphasis on humanitarian principles. Strategists must consider how the evolving nature of international law is changing the strategic operating environment.

The thesis of this paper is that developments in international humanitarian law (IHL) are introducing fundamental changes to the international strategic operating environment, primarily by challenging the principle of sovereignty. The analysis is not intended to judge whether or not this trend is politically desirable, but to recognize that lethal force is but one of many factors affecting outcomes in war. Strategists and policymakers must understand the legal dynamics that are exerting an increasingly powerful influence on the legitimate use of violence.

This paper will examine some of the unintended consequences of trends in international law that are likely to increasingly affect strategy. For example, Hew Strachan argues that the state no longer dominates the direction of war, in part because "international law has arrogated the decision to go to war, except in cases of national self- defence, to the United Nations."2 The state has lost uncontested control over the direction of war to international law, as evidenced by the expansion of humanitarian justifications for using force, and the enhanced powers of non-state actors on the international stage.

Strategy and international law are inextricably linked by the growing reach of international laws, treaties, and tribunals. There has probably always been a connection between law and strategy. "Silent enim leges inter arma" noted Cicero, suggesting that law's influence in war has historically been weak.3 Centuries later, Carl von Clausewitz could still dismiss international law as a "self-imposed, imperceptible limitation, hardly worth mentioning."4 Clausewitz, however, understood the influence of politics on war, and although his assessment of international law's political weight was probably accurate enough for his era, his analysis of the importance of political considerations in war foreshadowed the law's potential influence on strategy.5

Today, the power of the state is being limited at the same time as other influences are empowering individuals and non-state actors. The shift in emphasis in international law from sovereignty to humanitarian principles has helped create a gap between peace and war that state and non-state actors exploit through various measures short of war. Such measures-the unintended consequences of IHL-include the growing use of lawfare, the emergence of so-called "hybrid" warfare, and the loosening of the state's monopoly on the use of force. These developments have implications for strategy, such as the significance of international borders and the acceptability to the international community of using overwhelming force.

The origins of IHL are found in the desire to restrict the ruthless application of hard power. international law had its modern beginnings following a period of unrestricted warfare, when the states of Europe reflected on the consequences of the excessive military violence inflicted during the Thirty Years' War. In the 1648 Treaty of Westphalia, principles first set forth by Dutch lawyer Hugo Grotius helped usher in an age of limited wars.6 An important feature to the international system as inspired by Grotius was that war was conducted between sovereign states, and the inviolable sovereignty of states emerged as one of the guiding principles of international law. …

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