The Sixteenth Waldemar A. Solf Lecture in International Law

• Author: Michael N. Schmitt
• Pages: 06

364 MILITARY LAW REVIEW [Vol. 176

THE SIXTEENTH WALDEMAR A. SOLF LECTURE IN INTERNATIONAL LAW1

MICHAEL N. SCHMITT2

Bellum Americanum Revisited: U.S. Security Strategy and the Jus ad Bellum

I. Introduction

Five years ago, I published an article entitled Bellum Americanum: The U.S. View of Twenty-First Century War and Its Possible Implications for the Law of Armed Conflict.3 Its premise was quite simplethe law of armed conflict is in a dependency relationship to conflict, one that is usually reactive. Although proactive examples of limiting conflict exist,4 normative reactions thereto are far more common.5 For instance, the International Committee of the Red Cross is currently campaigning for a new Conventional Weapons Convention protocol on explosive remnants of war.6 This effort responds to the fact that in (and after) certain conflicts,

such as that in Kosovo, explosive remnants present a greater danger to civilians than even anti-personnel mines.7

If law is typically reactive, by considering future conflict it might be possible to identify: (1) prospective lacuna in the law of armed conflict;

(2) facets of that law that might be at risk; and (3) characteristics of future conflict that could potentially enhance the law's effectiveness. Such an

analysis, so the theory went, could in turn suggest options for strengthening the international legal regime.

Cognizant of the difficulties inherent in any predictive analysis, Bellum Americanum, as the title suggests, narrowed the field of study to one possible alternative future, that posited by the United States in official documents such as President Clinton's 1997 National Security Strategy for a New Century8 and the Joint Chiefs of Staff's 1996 Joint Vision 2010.9 The U.S. vision was selected both because of its strategic maturity and due to the determinative influence the United States would likely wield over the course of conflict for the near future.

The inquiry immediately led to the jus in bello.10 This was only logical, for conflict studies at the time were dominated by consideration of a purported revolution in military affairs. We were obsessed with full spectrum dominance, information operations, cyber war, operating inside the enemy's OODA loop,11 precision attack, stealth technologies, nanorobotics, unmanned aerial vehicles, civilianization and privatization, asymmetrical warfare, and so forth. The normative implications of this revolution in methods and means of warfare tended to bear most heavily on jus in bello principles such as discrimination.

Much has transpired since 1998. In 1999, the NATO Alliance conducted major combat operations for the first time in its history during Operation Allied Force, the air campaign against the Federal Republic of Yugoslavia. Two years later, al-Qa'ida mounted the single largest terrorist attack in history when it seized four airliners and flew them into the World Trade Center and Pentagon. Over 3000 citizens of nearly ninety nations perished. In response, a U.S.-led "coalition of the willing," after declaring a "Global War on Terrorism" (GWOT), launched a massive military operation, Operation Enduring Freedom, against the organization's bases in Afghanistan. It concurrently struck targets tied to al-Qa'ida and the Taliban, the de facto rulers of the country. Moreover, as this article is being

finalized, United States and British forces are responding to Iraq's failure to disarm pursuant to UN Security Council resolutions with a military campaign against Iraq, Operation Iraqi Freedom.

Given the uniqueness of these events, it is a propitious moment to revisit Bellum Americanum. Each has presented significant challenges to the jus in bello. Consider the controversies over the term "military objective" during Operation Allied Force or the refusal to characterize detainees as "prisoners of war" during Enduring Freedom.12 However, most normative disquiet during this period has surrounded the jus ad bellum; therefore, that body of law shall be the focus of this inquiry.

The methodology applied here tracks that used in Bellum Americanum. Since law tends to react to conflict, it is sensible to begin by considering the nature of future conflict and the strategies designed to address it. It might then be possible to identify where such strategies fit existing legal norms, where reinterpretation of those norms might be necessary, and where there is an overt mismatch between law and strategy.

The presumption underlying this effort is that law is both contextual and directional. It is contextual in the sense that it will inevitably adjust to meet the aspirations and expectations of the community in whose behalf it operatesin the case of international law, the global community. Simply put, law is dynamic, not static. At the same time, law tends to be directional. Rather than responding on a case-by-case basis to isolated events, it evidences movement in a general direction. This directional aspect makes predictive endeavors more reliable; by identifying the azimuth of change, it becomes possible to map out normative futures with greater confidence.

Obviously, this is a speculative undertaking. In the twentieth century, for instance, who would have anticipated the use in the twenty-first century

of commercial airliners as cruise missiles? Five years ago, strategists were concentrating on the possible emergence of a peer-State competitor, most likely China. Today, China as a threat is almost an afterthought in the face of attacks by transnational terrorist groups and the possibility that they may acquire weapons of mass destruction. And who could have imagined Germany, France, and Belgium joining forces to oppose efforts to secure NATO protection for Turkey during a U.S.-led military campaign to disarm Iraq?13

Despite this caveat, it remains useful to ask where strategies conflict with law, thereby necessitating a change in one or the other, or at least an acceptance of the costs of being labeled as lawless. The U.S. vision of future conflict, as well as the strategies articulated to deal with such conflict, has again been selected the point of departure. The United States enjoys determinative influence over the use of force in the global community. It has the most powerful military in the world, possesses military capabilities that the armed forces of other States rely on to conduct major operations beyond their borders, occupies a seat on the Security Council, dominates NATO, and, due to its political and economic wherewithal, has the greatest capability for bilateral influence. Like it or not, U.S. vision and U.S. strategies matter most in determining the future of conflict, and with it, international law. That being so, we shall begin with the current U.S. view of twenty-first century conflict.

II. The U.S. Vision of the Twenty-First Century Political-Military Environment

What is striking in the American view of the future political-military environment is the extent to which it is threat-based. This is true both as

to the diversity of the threats faced and, perhaps more tellingly, with respect to the extent to which particular trends, such as globalization, are now characterized as potential vulnerabilities. The United States sees itself as entering what Richard Holbrooke has branded the "post-post Cold War era." No longer does bipolar competition frame security, as it did in the Cold War. Likewise, the demise of bipolarity's regulating effect on potential internal and external conflict has passed its prime as a security determinant. Although the negative consequences of this post-Cold War era still underlie many security concerns, particularly in the Balkans, there is a sense that these are residual in nature, that the dynamics which led to the collapse of Yugoslavia and generated tension between Russia and the West have nearly played themselves out.

Post-post Cold War security anxiety focuses on chaos, disorder, and criminal actions by rogue States and transnational groups. In a sense, a classic battle between good and evil is underway for the United States, one that is far more nefarious than either simple clashes of national interests or conflicts over self-determination within well-defined political space. The Bush National Security Strategy (NSS), issued in September 2002, exemplifies this concern when it argues that "America is now threatened less by conquering states than we are by failing ones. We are menaced less by fleets and armies than by catastrophic technologies in the hands of the embittered few."14

Strikingly, President Bush's NSS devotes far less attention to describing the global security condition than his predecessor's did in 1997. Perhaps this is because the Administration believes that condition to be self-evident in the aftermath of 9/11. Moreover, in contrast to the somewhat vague Clinton version, the 2002 NSS sets forth an unambiguous U.S. strategy. Indeed, following the 9/11 attacks, the Administration delayed issuing the NSS, presumably to better address the dramatically altered threat environment, only releasing the strategy once the situation vis-à-vis Iraq had crystallized.

More descriptive of the security environment have been two other documents, one issued by the Joint Staff, the other by the Secretary of Defense. Joint Vision (JV) 2020, the Joint Staff's "conceptual template" for guiding transformation of the U.S. armed forces, posits three factors

most likely to determine the future security environment. First, the United States will remain a global power with global interests. Indeed, globalization, with its ever expanding transportation, communications, and information technology network, will require the United States to remain engaged internationally for both security and economic reasons. Consequently, the U.S. armed forces "must be prepared to 'win' across the full range of military operations in any part of the world, to operate with multinational forces, and to...