Keynote Address: the Emerging Law of 21st Century War

• Jurisdiction: United States,Federal
• Publication year: 2017
• Citation: Vol. 66 No. 3

Keynote Address: The Emerging Law of 21st Century War

Harold Hongju Koh

Keynote Address

THE EMERGING LAW OF 21ST CENTURY WAR

Harold Hongju Koh^*

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 cross-border 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

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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 "dot.com," 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

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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.

In the early days after 9/11, I rejected this view, arguing that we should not respond this way. Instead, we should treat modern armed conflict as different, but not unique. We should not act as if we had suddenly entered a "law-free zone."⁶ Although the law might change, the emerging issues of armed conflict nevertheless remain issues governed by law.

I contrasted the "black hole" approach with my preferred "translation" approach: an approach that I would argue has in fact carried the day in the fifteen years since 9/11: namely, that we live in a time where we must translate what Montesquieu called the "spirit of the laws"⁷ to the present-day situation.⁸ This translation exercise necessarily occurs with many interpreters, because at present, both the domestic and international legislative systems are peculiarly slow to respond to current developments. So if the law to be applied to modern problems is to be updated, it must be law that reflects modern, emerging state practice, driven from a sense of legal obligation derived from the spirit of the laws that previously governed nineteenth- and twentieth-century conflicts.

It takes only a moment of reflection to see how big a difference there is between a "black hole" and a "translation" exercise with regard to the modern law of war. If we live in a black hole, we are operating outside the law altogether. But if we are engaged in a translation exercise from previously-agreed international legal rules, we may debate whether or not any particular translation is correct, but there can be no denying that we are generally operating within the framework of the law, rather than denying its application. For example, China might welcome the suggestion that cyberspace or the South China Sea should be

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black holes because, in those zones, China has greater military capabilities that, in Thucydides' words, would allow "the strong [to] do what they can and the weak [to] suffer what they must."⁹

But if instead you translate, you are trying to update the spirit of the laws that were developed for another time to a new and unexpected situation. People can debate whether a text has been correctly translated, but obviously, there is a huge difference between arguing over precisely where the line of legality should be drawn when operating within the framework of law, as opposed to whether law applies at all. The choice of translation over black hole thus implicates a profound decision: to choose between the rule of law on the one hand, and state practices that have been adopted for expediency's sake, without regard to legal foundation, on the other.

This lecture argues that even amid twenty-first century conflict, with redefined security threats and novel tools of war, the laws are not silent. Even as the practice of conflict has transformed, we can discern an emerging twenty-first century law that governs it. We can also identify significant differences between the legal approach of the Obama Administration and the one that preceded it. For while the current Administration's legal interpretation does not follow verbatim from twentieth-century rules, it derives from good faith efforts to translate the spirit of those laws to modern-day situations.¹⁰ In several emerging areas of twenty-first century war, a new body of law has emerged—much of it developed by U.S. practice and pronouncement—that increasingly is

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transnationally shared with other developed nations, particularly our NATO allies. Our challenge going forward is to clarify this body of law, set its contours, make it more transparent, and embody it into international legal instruments.

Let me respond first to a simplistic characterization sometimes seen in the media: that the Obama Administration's approach to 9/11 national-security issues is exactly the same as the George W. Bush Administration's approach. I would argue that in fact, there are six crucial differences.

First, who is the enemy? The Obama Administration does not believe in, or speak of, a "global war on terror." We are not engaged in an amorphous war on "terror," any more than we are engaged in an amorphous war against "drugs" or "poverty." Instead, the United States currently engages outside of hot battlefields against particular transnationalist terrorist networks in military operations that are decidedly constrained by international law principles of state sovereignty, human rights, and humanitarian law.

Second, under domestic law, the United States does not operate based purely on the President's unenumerated constitutional powers. Rather, uses of force are based on specific congressional authorizations plus constitutional power.¹¹ Third, although some U.S. judges may disagree,¹² it is broadly accepted that as a matter of international law, these domestic authorizations should be informed by the international laws of war. Fourth, the Obama Administration has applied a hybrid paradigm for counterterrorism. The United States does not use an either/or approach—either war or law enforcement—but rather combines them into a hybrid approach.¹³ So what may be an appropriate warlike response toward an ISIL leader who may be found in an unstable part of Syria may evolve

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into a more appropriate law enforcement approach, should that very same ISIL leader be located and captured in a stronger law enforcement environment, such as Brussels or Paris.

Fifth, the Obama Administration has taken pains to apply a fact-based, not label-based, approach toward identifying the enemy. To label someone as an "enemy combatant" does not suddenly mean that, against that person, anything goes. Rather, hard cases call for a detailed fact-based inquiry, to help determine whether that particular person may lawfully be the subject of military action. A lawyer must ask...