• The Rules of War Need a Major Overhaul

    by  • December 3, 2016 • BOOKS, Human Rights, Peace and Security, Responsibility to Protect, Security Council • 

    Donetsk People's Republic fighters in Ukraine

    In Ukraine, members of the Russian-financed Donetsk People’s Republic militia, “defending” Ilovaisk,  a provincial hub, in 2014, against the Ukrainian army. CREATIVE COMMONS

    Evidence is piling up: the global security framework that emerged from the ashes of World War II is no longer capable of pursuing international peace. The arrangement, conceived by the major powers that won the war, has expanded into a grab bag of rules and institutions that the crises of our own era have gradually outgrown.

    The system’s centerpiece, the United Nations, was created to bring governments together in a shared mission to prevent another world war. Other new global structures soon followed. For the next half century, there was still conflict, of course, but a real sense of an international order emerged, along with a growing body of international law aimed at preventing war or, if that failed, at least keeping it legal.

    In that era, many aspects of war were fairly predictable. Nations formed armies whose ranks were filled with soldiers trained to kill the enemy army with the lethal weapons they carried into battle. Armed struggle was typically waged by individual countries and ended after one side or the other won or gave up. National sovereignty was sacrosanct: heads of state could mistreat their citizens pretty much however they wanted and count on other nations to mind their own business. But invade another country and you were asking for trouble.

    Today, seven decades later, the world’s security architecture is not keeping up.

    The UN Security Council, while less paralyzed in some ways than during the height of the Cold War, is often pushed to the sidelines by new kinds of international rivalries and conflicts. The rise of so-called nonstate actors — entities that have power, influence and even arms and armies but are unallied with any particular nation — has become a major threat to world stability. A contemporary war can be waged by a band of guerrillas using stolen arms, a Twitter account, extortion and a few Toyota pickups to target the government of the country where they are based or bring a powerful nation to its knees thousands of miles away.

    Armies still have traditional soldiers in their ranks, but they fight alongside computer hackers, private contractors, suicide bombers, chemical weapons producers, filmmakers of beheadings and technicians with strong computer gaming skills who can kill distant bad guys that they watch on video screens, dropping missiles from pilotless drones with the click of a mouse. Often, the drones fly around countries whose leaders claim to have no say in their presence.

    The changing nature of the world order has twisted the notion of sovereignty. When a national leader mistreats his own people, a UN doctrine called the Responsibility to Protect justifies intervention by other nations — unless the intervention begins to resemble regime change, which remains out of style. Washington bombs what it denounces as terrorist groups inside Syria while covertly arming others it considers good guys, but neither activity is sanctioned by Damascus or its major power ally Moscow, which are both conducting a parallel war in some of the same places.

    In the ultimate breakout from previous wars, 19 men from four countries, armed with box-cutters, managed to deeply disrupt the international order in September 2001 in an attack that continues to reverberate around the world. Within days, Washington had responded to 9/11 by starting a Global War on Terror, a new type of conflict that has yet to end.

    Looking back, things used to be simpler: there was war and there was peace, argues Rosa Brooks, the author of “How Everything Became War and the Military Became Everything: Tales From the Pentagon.” In times of peace in the liberal democracies, national bodies of domestic law banned killing and sought to ensure civil accountability. But killing was allowed under the law of war; as long as it was done within the rules — no knowing slaughter of civilians, aid workers, journalists or prisoners of war, for instance, or hospitals and schools.

    While this formal code for the use of lethal force may have left many loopholes and was never 100 percent upheld, it appeared to enjoy international consensus and legitimacy among many governments. Additional international agreements, like bans on nuclear testing and chemical weapons and a range of human-rights charters signaled that certain norms of decency could achieve consensus and thereby increase stability and reduce the risk of global annihilation.

    But these days, there is neither war nor peace in some places but a realm that Brooks refers to as “the space between.” Where war and peace coexist, she says, the rival bodies of law that govern them must also compete, and the question of which to apply in a given situation can be a real puzzle.

    For the United States, a central challenge has been how to deal with terrorist groups that align with no central government and that openly scorn the idea that civilians should be protected from force or torture. Sometimes this question ends up in the laps of a few Washington lawyers, who have invented such rule-bending stretches as “pre-emptive self-defense,” “enhanced interrogation” and indefinite detention of “enemy combatants” who never wore a military uniform. That bodes ill for our increasingly shaky international system and cries out for changes that can allow the law to catch up with the reality, Brooks argues.

    Brooks, currently a columnist for Foreign Policy, a Georgetown University law professor and a senior fellow at the New America Foundation think tank, seems well placed to opine on the military, war, the rule of law and the international security architecture. An antiwar protester in college and a Pentagon official two decades later, she is the daughter of Barbara Ehrenreich, the social activist, and John Ehrenreich, a psychologist; she is also the wife of a US Army Special Forces officer.

    Brooks’s résumé includes stints at Human Rights Watch, the US State Department and the Department of Defense, where she served as a counselor to Michèle Flournoy, the under secretary of defense for policy, from 2009 to 2011 (and who had been rumored to become secretary of defense in Hillary Clinton’s cabinet had she won the presidency).

    But Brooks’s plea for a major upgrade of the global security architecture may be ill timed, as Donald Trump prepares to enter the White House. It’s hard to imagine Trump, who knows next to nothing about foreign policy and the military and has fully embraced American exceptionalism, losing sleep over the niceties of international law and greater multinational cooperation.

    And yet, the failure of the international order to keep up with a changing world threatens to force us back into an era of “domestic repression and bloody global conflict,” Brooks writes. “[I]f we believe that a world in which governments respect basic rights and the rule of law is a better world than one in which they don’t, we should be troubled by the recent blurring and expansion of war,” she writes. “If the rules we have created for wartime stay the same, but war continues to expand, we will eventually find ourselves living permanently under wartime rules, with their reduced constraints on lethal force and reduced expectations about accountability.”

    The international system set up after World War II was meant to ensure that crises would be addressed by consensus among the five powers — Britain, China, France, Russia and the US — who were the war’s big winners and were given permanent seats and veto power in the Security Council. The system rested on the hope that nations would unite to work out international agreements on the rules of war. So what fixes does Brooks suggest to help the system meet today’s challenges?

    Many in the international community argue that the Security Council must start by abolishing the veto and adding permanent members whose credentials do not stem from the war. But Brooks dismisses reforms that deal only with “voting and membership rules.” She wants something that goes farther, although she is vague on the specifics. The goal of reform, she says, must be to prevent the US and other major powers from hiding behind their sovereignty to cloak abuses.

    “We will need to thoroughly overhaul existing international governance structures, and pour both money and diplomatic energy into persuading other powerful states to join us,” she writes.

    A big concern is Washington’s use of drones to murder enemies inside other countries. Not that Brooks agrees with many human-rights activists that this is a form of “targeted assassination” that should be flatly banned by international law. When the circumstances are appropriate, we need to do it, she argues. But if we do it, she worries, why couldn’t North Korea or Iran do the same? So there is need for a “a strong global referee” on the international level “that could make those difficult decisions about when and where to use force, so it wouldn’t just be one state’s views against another’s.

    “Only such a system could prevent the inevitable erosion of traditional norms of sovereignty from leading to a slide toward conflict and instability, at the expense of basic human rights.”

    Nationally, Washington should take a similar step by creating an independent commission or judicial body that could “bring greater transparency and accountability” to targeted strikes and ensure they occur in “a zone subject to the rule of law.”

    In such work, there are no guarantees, but the effort is always justified, Brooks concludes. “We try and we try and we try, and sometimes things get better.”

    “How Everything Became War and the Military Became Everything: Tales from the Pentagon,” by Rosa Brooks. Simon & Schuster. ISBN: 978-1-4767-7786-3.

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    About

    Irwin Arieff is a veteran writer and editor with extensive experience writing about international diplomacy and food, cooking and restaurants. Before leaving daily journalism in 2007, he was a Reuters correspondent for 23 years, serving in senior posts in Washington, Paris and New York as well as at the United Nations. He also wrote restaurant reviews for The Washington Post and Washington City Paper in the 1980s and 1990s with his wife, Deborah Baldwin.

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