In the study and practice of international relations, war has often been considered a law-free zone. From Cicero's maxim inter arma enim silent leges Footnote 1 to claims from International Relations (IR)Footnote 2 realists that international rules ‘matter only at the margins’,Footnote 3 there has been a strong, enduring scepticism of the law's ability to constrain wartime violence. A competing tradition of scholars and activists has been far more optimistic about the power of law to mitigate the evils of armed conflict.Footnote 4 With some key exceptions,Footnote 5 most scholarship within IR has tended to gravitate strongly towards one of these two views. Yet neither adequately accounts for the increasingly legalistic nature of modern asymmetric warfare between liberal democratic states, on the one hand, and non-state actors such as al-Qaeda and its affiliates, the Taliban, Iraqi insurgents, Hezbollah and Hamas, on the other. In such conflicts, the incorporation of legal considerations into military strategy, and the acrimony of accompanying legal debates, suggest that ‘(w)ar has become a modern legal institution’.Footnote 6 This incongruity between the most common IR perceptions of the law and the reality of twenty-first-century combat raises an important question: what is the true nature of the relationship between international law and modern asymmetric war between states and non state-actors?
This article seeks to answer this question and contribute to a better understanding of the peculiar merger of law and violence that characterises asymmetric conflictsFootnote 7 such as the US global campaign against terrorism, NATO's war in Afghanistan, the Second Gulf War, and Israel's wars in Lebanon (2006) and Gaza (2008–9). I open with a brief discussion of some influential theories of asymmetric war and law in IR, noting that despite their many virtues, these theories largely overlook the important role of international law in conflict and therefore are useful but incomplete explanations of modern asymmetric war. Although other IR scholarship does more explicitly examine the role of law in war, it too is of limited use for explaining the question at hand due to its general tendency to focus on interstate rather than asymmetric conflicts, specific legal issues in isolation, state treaty compliance rather than broader legal dynamics, or law as mostly a morally progressive force (that is, one that constrains violence). Notably, no IR scholarship to date clearly elucidates the various legal asymmetries that both constrain and enable the use of force and interact with other asymmetries to shape outcomes in conflicts between states and non-state actors. In an effort to address this gap in the literature, I briefly examine recent works in International Law (IL), which thoughtfully explore the interaction between law and violence in such asymmetric conflicts. Such work complements IR scholarship by exploring the myriad ways that law matters in modern asymmetric war and stressing that law is simultaneously both a useful tool for the powerful and a strong normative constraint. Drawing inspiration from IR and IL scholarship from multiple theoretical paradigms, I then examine the role of law before, during, and after asymmetric conflict. Rather than presenting a specific case study or focusing on one particular aspect of the law, this section takes a broader view to show the various particularly legal asymmetries that profoundly influence asymmetric warfare. Finally, I examine the scholarly and practical implications of this article, noting that a good understanding of legal asymmetries can supplement existing theories of asymmetric war, continue the dissolution of false dichotomies, and open up interesting avenues of research in IR, and help both scholars and policymakers understand how international law influences modern asymmetric conflict against non-state actors.
IR views of international law and asymmetric war
Generally, approaches in IR seek to understand and explain asymmetric war by focusing on three key asymmetries: power, resolve, and strategies.Footnote 8 I will briefly discuss each of these asymmetries in turn to determine how they help to explain modern war and where they could be supplemented usefully by a legal approach. While the last two necessarily flow from the first, power is, of course, not wholly determinative of war outcomes. What matters more is how effectively resources are translated into war-fighting capability.Footnote 9 Indeed, the additional focus on asymmetries in resolve and strategies is necessary precisely because of the queer fact that the strongest party often loses asymmetric wars.Footnote 10
Obviously, a focus on power is the necessary first step to any understanding of asymmetric war given that power asymmetry is largely what makes an asymmetric war. Without it, the war resembles traditional war among peers or near-peers. I need not dwell on the importance that the discipline of IR places on material capabilities and state power relative to other states.Footnote 11 It is a given, therefore, that states which seek to maximise power vis-à-vis other states will usually have superior capabilities to those of non-state actors. This discrepancy in military capabilities brings to mind the well-known image of asymmetric war: a rag-tag bunch of insurgents launching surprise attacks against their better armed state foes before disappearing amongst the civilian population. However, at least since Vietnam and Algeria, there has been an understanding that a huge advantage in material power does not necessarily translate into victory in war. To explain this surprising disconnect between material inputs and war outcomes, scholars have usefully noted that power asymmetries can cause asymmetries in other areas which relate to power in interesting and unexpected ways.
Key amongst these is the question of resolve, or will. In a classic work on why big nations lose small wars, Andrew Mack notes that, far from guaranteeing victory, material power may hinder it because it leads to marked differences in the resolve of the respective combatants. The reasons are simple and compelling: the stronger party can afford to be only half committed because it does not face an existential threat;Footnote 12 great strength brings greater expectations for rapid victory which, when not met, lead to frustration amongst the population of the stronger power; populations tend to be less tolerant of their troops' moral infractions in wars with limited aims against weaker opponents;Footnote 13 and such internal divisions erode the political capability of the stronger power to continue fighting. The weaker party usually faces none of these problems; thus asymmetries in power that favour the strong can result in asymmetries of resolve that favour the weak.
By adding the concept of resolve, or will, to that of capability, Mack enriches IR's analytical framework to help unravel the most head-scratching of puzzles: states often lose when their enemy has not, and cannot, defeat them militarily. This had already been well accepted in the policy world by such realist luminaries as Henry Kissinger who pointed out that ‘the guerrilla wins if he does not lose’.Footnote 14 However, given that much of IR scholarship focuses mostly on material capabilities as the determinative aspect of state power, this is no small point. More interestingly, by splitting asymmetric war into two aspects – the military war in theatre and the political war at home – Mack's approach draws attention to a fact that remains extremely important in explaining the dynamics and outcomes of asymmetric war; namely, superiority in the military sphere, and the expectations or frustrations it engenders at home, can lead to domestic divisions that can sap political resolve and aid the enemy.Footnote 15 These divisions become a strategic enabler for the weaker party, which accordingly strives to ‘amplify the contradictions in the enemy's camp’.Footnote 16 These are essential points that encourage us to broaden our view of the waging of war to include the concurrent debates about war. Indeed, the split between theatre of war and home front suggests ‘in certain types of conflict, conventional military superiority is not merely useless, but may actually be counter-productive’.Footnote 17 This is a startling claim for a realist outlook that emphasises power – and particularly military power – above all else.
However, strong countries do not always lack resolve, especially when the war effort is tied to their sense of identity.Footnote 18 Further, while nothing saps national morale like a seemingly endless war, quick routs can be immensely popular. Therefore, the length of the war is a key factor in determining asymmetric war outcomes. In order to successfully exploit its stronger enemy's political vulnerability, the weaker party must play for time and avoid defeat at all costs. To do this, the strategy it adopts vis-à-vis its stronger foe becomes essential. In an illuminating paper on how the weak win wars, Ivan Arreguin-Toft makes just this point in describing how a weak actor's strategy can make a strong actor's power irrelevant and provide the time needed for the dynamics mentioned above to unfold.Footnote 19 For Arreguin-Toft, ‘strategic interaction’, particularly asymmetries in strategy, is the key factor in understanding asymmetric war. He usefully divides strong and weak actor strategies into a neat typology.Footnote 20 The strong actor (attacker) has two strategies: ‘direct attack’, where they attack their adversary's armed capacity; and ‘barbarism’, where they attack their adversary's will or capacity through systematic violations of the laws of war such as the use of prohibited weapons, attacks against non-combatants, the establishment of concentration camps, or reprisals. The weak actor (defender) also has two strategies: ‘direct defense’, which target the opponent's military; and ‘guerrilla warfare’, which aims to destroy the will of the attacker. The ‘direct strategies’ (direct attack and direct defense) are self-explanatory. With regard to the ‘indirect strategies’, guerrilla warfare can best be explained through Mao's famous dictum: ‘When guerrillas engage a stronger enemy, they withdraw when he advances; harass him when he stops; strike him when he is weary; pursue him when he withdraws.’Footnote 21 And if guerrilla warfare requires that guerrillas move amongst the population like a fish in the sea, barbarism often requires mass killing and the draining of the sea.Footnote 22
Noting that ‘every strategy has an ideal counter strategy’, Arreguin-Toft claims that ‘strong actors are more likely to win same-approach interactions and lose opposite-approach interactions’.Footnote 23 For a typical asymmetric conflict, this implies that a guerrilla strategy will be tremendously effective in playing for time against a restrained (that is, non-barbarous) traditional foe and allowing internal divisions and political vulnerabilities to take root. This will be especially effective against a state that underestimates the cost of fulfilling its war aims.Footnote 24 In other words, asymmetries in strategy, as well as asymmetries in capabilities, can lead to asymmetries in resolve. Arreguin-Toft's theory, then, recognises the importance of different types of asymmetries and neatly links them in a convincing and useful manner. Similarly, Jason Lyall and Isaiah Wilson III note that the increased mechanisation of modern militaries (that is, power asymmetry) actually negatively affects a state's war chances because it diminishes its ability to collect information and exercise force with discrimination.Footnote 25
As helpful as these theories are, they also highlight the fact that one type of asymmetry, although hinted at, is glaringly absent: asymmetries in the law. Indeed, without careful consideration of the law, the theories above seem out of step with the current military reality where military lawyers play a key operational role, legally controversial decisions are made at the highest levels, and both criticism and support of war efforts are offered in distinctly legal terms. Excluding the law from theories of asymmetric war therefore begs certain questions, most notably: Why do overwhelming power disparities not translate into victory more often? What gets in the way? Why are citizens so critical of the moral infractions of their own soldiers, especially when committed against ruthless, foreign foes? Why are moral arguments so effective in creating divisions and weakening resolve on the home front? If ‘barbarism’ (that is, breaking the laws of war) is an effective strategy against guerrilla warfare, why do states not employ it systematically to avoid defeat? Why and how do non-state actors use the law to limit the power of their state foes? How do states use the law in response?
While these theories of asymmetric conflict somewhat underemphasise the role of law in conflict, other IR scholarship has explored the potential impact of the laws of war on state behaviour as well as state compliance with international treaties more generally.Footnote 26 Such work has focused on the efficacy of specific legal rules during wartime such as those regarding the protection of civilians,Footnote 27 mass killing,Footnote 28 torture,Footnote 29 or the treatment of prisoners.Footnote 30 Other important IR scholarship has explored how states strategically break or change the law to further their interests Footnote 31 and use the law to exert influence over other states.Footnote 32 Further scholarship treats law mostly as a moral phenomenon, focusing on how law constrains state action even in times of war.Footnote 33 In such a view, law is an extremely powerful and mostly progressive moral discourse,Footnote 34 largely because of the popular image that international law is ‘distinguishable from, and superior to, politics’,Footnote 35 as well as being compulsory, neutral, and objective.Footnote 36 In short, IR scholars have done an exemplary job of exploring the non-legal aspects of asymmetric war, and exploring how law interacts with, bolsters, and restrains the use of state power in various ways, especially in interstate conflicts. To date, however, there have been no broad overviews of how law structures the dynamic of asymmetric warfare and influences war outcomes in IR. This article seeks to help fill this gap.
IL views of international law in asymmetric war
In exploring the legal aspect of modern war, it is necessary to take an interdisciplinary approach since, notwithstanding the quality of the IR work above, IL scholarship has gone further in understanding the relationship between law and asymmetric war against non-state actors. At its best, such work marries a rich understanding of the importance of law with an unblinking acceptance of the reality of power. Not surprisingly, military lawers, who operate at the nexus of law and war have written influential work in this vein.Footnote 37 For example, retired JAG General Charles Dunlap Jr has coined the term ‘lawfare’ to describe the use of law as a weapon of war,Footnote 38 a definition that has expanded to mean the ‘strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective’.Footnote 39 While lawfare has often been used to describe the threat posed to Israel and the US from the unscrupulous abuse of the law by terrorists and their sympathisers, it can just as effectively be used to describe the instrumental use of the law in war by any actor, including states.Footnote 40
The ongoing discussion of lawfare runs parallel to other fascinating work in IL scholarship that explores the crumbling boundary between law and asymmetric war. For example, David Kennedy explores how law simultaneously serves the interest of both violence and morality: ‘in today's asymmetric wars … law can be weaponized quite differently by our own technologically sophisticated forces and by the dispersed groups of terrorists and insurgents against whom they have found themselves in combat. At the same time, the legalization of warfare offers new opportunities for those who seek to restrict the use of violence and military force. Millions of people marched against the Iraq war buoyed by the claim that the war was an illegal violation of the UN charter.’Footnote 41 Law is both a tool to be wielded and a medium for political and moral protest.
Dunlap Jr and Kennedy share a common willingness to explore the complex ways by which international law shapes asymmetric conflict, interacts on modern battlefields, and defines the heated debates that surround the use of force against non-state actors. Such accounts not only offer a broader array of insights but also appear to align more closely with the current military reality where lawyers play a key operational role, legally controversial decisions are made at the highest levels, and both criticism and support of war efforts are offered in distinctly legal terms. What such work suggests is that law not only governs conflict, but also that legal asymmetries are an integral component of the broader asymmetries that determine the nature, duration, and outcome of war between state and non-state actors. The key to this body of work is the idea that the law is at once a tool for manipulation and a powerful set of normative rules. An often unstated but essential background assumption is that law would not be an effective tool if it were not accepted as a set of rules with particular legitimacy and normative force. Building on the above IR and IL literature on asymmetric conflict, I turn now to exploring the roles of international law in asymmetric war, focusing on the legal asymmetries before, during, and after conflict.
Legal asymmetries before and during conflict
The ability to create the law
Although there is a powerful perception that international law is detached, impartial, and objective, certain important asymmetries are actually built into the process and content of the law itself. First and foremost, while non-state actors are only legal subjects, states are both creators and subjects of international law, a fact that has profound implications for how the laws of armed conflict (LOAC) are structured. States create and define international law both through treaties and custom (that is, state actions with the accompanying belief that they stem from a sense of legal obligation).Footnote 42 In comparison, non-state actors, who cannot abstain from signing a treaty or claim to be persistent objectors to emerging customary law, are subject to laws they did not make. Because states have the power to determine who is outside the law and which rules apply in given situations,Footnote 43 it is not surprising that the laws of war usually Footnote 44 favour states against non-state actors.
Asymmetric rights and obligations
In traditional war between states, there is a legal symmetry given that both sides have the right to fight; it is how they fight that is the object of legal censure.Footnote 45 At its core, this protects the legal right of state soldiers to kill in the pursuit of state objectives, and legitimises and monopolises state violence.Footnote 46 As well as the right to avoid prosecution for killing, the status of ‘soldier’ entitles one to certain protections as a Prisoner of War (POW), although it also exposes one to the threat of being killed at any time during war by virtue of one's status alone.Footnote 47 This symmetry of rights does not naturally apply to asymmetric conflicts where only states decide which actors have the right to fight and non-state actors are often, but not always,Footnote 48 declared to be outside the realm of legal privilege.Footnote 49 Perhaps the most famous example of this is the Bush Administration simultaneously claiming the right to target al-Qaeda fighters as combatants in a War on Terror even while claiming that the Geneva Conventions did not apply to al-Qaeda given their status as unlawful combatants. While the Administration was roundly pilloried for these arguments, this was not necessarily a clear case of breaking international law; rather the Administration exploited a seam in a body of laws that was never created for conflict with non-state actors so as to capitalise on an important legal asymmetry in its war against transnational terrorism.Footnote 50
As well has having rights withheld, non-state actors can be exposed to the full force of legal sanction due to their non-state status. While the LOAC between states ostensibly respects a separation between jus ad bellum and jus in bello (that is, a soldier cannot be punished for the unjustness of his cause but only for the unlawfulness of his actions), this firm distinction may not hold in the case of conflict with non-state actors.Footnote 51 For example, following a 2002 firefight in Afghanistan, a foreign non-state combatant was charged with murder for throwing a grenade that killed an American soldier.Footnote 52 In comparison, the US did not charge any Iraqi government soldiers with murder for killing Americans during combat. This discrepancy shows that even following the LOAC does not necessarily make non-state violence legal.
As well as symmetrical rights, traditional war is also characterised by symmetrical obligations. This traditional symmetry does not exist in wars against non-state actors.Footnote 53 For example, while all states have obligations under International Human Rights Law (IHRL) – even during times of armed conflict – non-state actors traditionally do not, given that human rights were conceived strictly as obligations owed to humans by states.Footnote 54 While obligations under the LOAC are at least theoretically symmetrical, even for non-state actors,Footnote 55 at least five factors interfere with this symmetry in practice.
First, in situations of immense power asymmetry, especially when non-state actors can credibly claim to be fighting ‘occupiers’ or ‘imperialists’, the international public seems receptive to arguments that the weaker party cannot afford to play by the same rules.Footnote 56 In the words of Michael Schmitt, ‘as in any “unfair fight”, there is a propensity to root for the underdog’.Footnote 57 While certainly not condoning terrorist actions, even champions of international law such as the International Committee of the Red Cross (ICRC) can contribute to this dynamic. For instance, in its 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities, the ICRC recommended that non-state combatants must be serving a ‘continuous combat function’ in order to be lawfully targeted; that is, they must not be targeted simply by virtue of their status as a member of an armed group.Footnote 58 The fact that this would give non-state actors more formal protection under the law than state soldiers, where even military cooks are targetable simply by virtue of their military status, was one reason why some legal experts who participated in the review process ultimately withdrew their support for the ICRC guidance.Footnote 59
Second, liberal democracies demand from themselves a greater level of compliance with international law.Footnote 60 The citizens, politicians, and institutions in liberal democracies all reinforce the view that they should be held to a higher standard than the barbarians who flout international law, a view captured eloquently by President Obama's statement that ‘(e)ven as we confront a vicious adversary that abides by no rules, I believe the United States must remain a standard bearer in the conduct of war’.Footnote 61 Such respect for the LOAC is also prevalent in the organizational culture of the Armed Forces in liberal democracies. The 2006 US Army and Marine Counterinsurgency Field Manual, for example, specifically warns against the danger of losing moral legitimacy by conducting torture.Footnote 62 The US military also consistently sought to avoid civilian casualties in Iraq even when it put US troops at risk – a result of the humanitarian side of US military cultureFootnote 63 and the values of the military JAG corps.Footnote 64 Non-state actors usually either do not have such audiences holding them to account or, if they do, they are often being held to very different standards.Footnote 65 Here we see how different views of the law contribute to different levels of resolve to do ‘whatever it takes’ against one's enemies. Democracies have greater built-in legal checks to restrain themselves in all but the most extreme circumstances; the ‘audience costs’ of violation are significantly greater for democratic states, and we can expect them to be more reticent to break the laws of war.Footnote 66 Thus, considerations regarding the importance of normative standards intrude upon the strategic calculus of states, preventing them from simply casting the law aside. States can become trapped by rules of their own making.
Third, asymmetry in material capabilities poses new challenges for the state as it raises the possibility of very strict compliance with certain laws. Thus while the advent of ‘smart’ targeting technology was trumpeted by Western militaries as an effective way to meet the LOAC's discrimination and proportionality requirements,Footnote 67 this has created an expectation that they be used in all cases.Footnote 68 Even the American process of weapons development and procurement is subject to review by JAG officers to ensure its legality under the LOAC.Footnote 69 For modern militaries, the problem with this trend is that all civilian casualties from the use of technically legal, ‘dumb’ munitions, even when they are the collateral damage from a legal strike aimed at a military objective, are likely to be met with moral and even legal condemnation.Footnote 70 The inverse is that non-state actors may not even have the capacity to comply with some aspects of the law;Footnote 71 people have questioned, for example, whether non-state actors can be expected to distinguish themselves from civilians when they often cannot even afford uniforms.Footnote 72 A more worrying implication of this line of reasoning is that homemade rockets launched into civilian areas, and the clear violation of the LOAC principle of distinction which such attacks entail, can perhaps be excused because, without the technology for smart munitions, they are the only viable method of resistance. For some onlookers, then, can implies ought and it is logical to discuss the development of a ‘differential law of war’ based on the legal principle of common but differentiated responsibilities.Footnote 73 In such a social context, all civilian deaths are legally suspect if they result from the application of state force. This has led to the odd situation, certainly from a realist perspective, where some states have taken steps not just to comply with international legal obligations, but to exceed them.Footnote 74 For example, following civilian casualties in Afghanistan, NATO stated that ‘if there is the likelihood of even one civilian casualty, NATO will not strike’,Footnote 75 thus tying itself to a standard far stricter than its LOAC obligations. Following this announcement, the Taliban further enmeshed themselves in civilian areas, complicating NATO's operations. Thus asymmetries in material power help create the asymmetries in law that actually limit the use of that power.
Fourth, states have a vested interest in maintaining the legitimacy of the system of international law, and thus may comply with the LOAC to signal their commitment to the broader international system of state-based order.Footnote 76 Fifth, state and non-state actors are pushed towards or away from compliance in war by their own strategic interests, as will be discussed in the following section. Compared with non-state actors, then, democracies are pushed toward compliance by a range of ‘broader enforcement mechanisms’ such as international and domestic opinion, organisational culture, and their own increasing capabilities.Footnote 77
Together, such factors challenge traditional notions of legal symmetry, contributing to the view held by an increasing number of judges, scholars, and organisations that the principle of reciprocity should be (or has been) eliminated from international law (that is, an enemy's lack of compliance with international law can no longer justify one's own).Footnote 78 This is a worrying development for states facing non-state actors in war given that the LOAC traditionally gives them the right to use reprisals to ensure their enemy's reciprocal compliance with the law. Indeed, for this reason, states such as the UK have long insisted on maintaining the right to commit reprisals ‘for the sole purpose of compelling the adverse party to cease committing violations’.Footnote 79 Such a statement lays bare the tension faced by liberal democratic states when confronted with adversaries who disregard the law: to continue to follow the law seems to put a state at a disadvantage; to follow the adversary in disregarding the law seems to put a state at odds with its own values. Regardless of how liberal democracies ultimately address this tension – and they have thus far opted mostly for unilateral compliance – the very notion that a state is expected to show restraint even as its opponent breaks the LOAC contributes to the asymmetrical legal obligations present in modern conflict. Along with the other factors above, this suggests that in asymmetric war there are de jure symmetrical obligations that favour the state and de facto asymmetrical obligations that favour non-state actors.
The ability to choose the legal framework
While states have the power to create the law that structures wartime interactions, not all laws are created equal. There are many different bodies of law and legal frameworks with varying requirements that reflect their different origins and purposes.Footnote 80 For example, the LOAC was established in the nineteenth century to bring a modicum of humanity to the brutality of war between states. Rather than seeking absolute prohibitions, the LOAC is largely utilitarian in outlook. In balancing humanitarianism with military necessity, it affirms the state's right to kill during war, and does not aim to excise violence from war so much as to limit and channel it.Footnote 81
In contrast, IHRL emerged and flourished following the infamous human rights abuses of World War II, with the explicit aim of protecting the individual from state oppression. Its norms have one core principle: to protect the right to life and the dignity of the human being.Footnote 82 Unlike the LOAC, IHRL privileges deontological rather than consequentialist reasoning. Killing is permitted only in the most exceptional circumstances, and obligations are meant to be absolute and non-derogatory. As a result, concepts like jus cogens prohibit certain actions no matter what the enemy's infractions.Footnote 83
International Criminal Law (ICL) is also a relatively recent phenomenon. It takes its cues from domestic legal systems and has adopted the language, processes, and expectations of domestic criminal law with a focus on concepts like due process, the collection of evidence, habeas corpus rights, the right to legal counsel, etc. Importantly, ICL applies specifically to individual persons rather than states. In ICL, a balance is struck between the individual rights of the accused and the prerogative of the international community to punish culpable individuals – within certain humane boundaries of course.
Rather than being a unified moral and legal code opposed to death and destruction, then, international law comprises numerous different frameworks with different assumptions, strengths, and weaknesses regarding the use and control of violence.Footnote 84 While all three of these bodies of law apply partially, none fit perfectly with the reality of modern asymmetric war. Instead, they form a sort of ‘regime complex’ in the area of asymmetric war, representing multiple overlapping regimes replete with legal inconsistencies.Footnote 85 This has led to the legal gray zone of recent years where even the body of law, or ‘domain’, that should be applied to a conflict is itself the subject of political and legal contestation and linked to very loaded questions: Is this an occupation? Was this an act of war or a crime? Should we consider terrorists as criminals, soldiers, or something in between? Should our response be investigation, incarceration, assassination, or rehabilitation? Reasonable people disagree and much is open to debate, but such vexing questions show that the very choice of legal framework is itself a vital issue, largely because each framework has a radically different view of the sanctity of human life.
Given such significant discrepancies, it is small wonder that states choose their legal framework(s) strategically and develop and deploy legal concepts that maximize their marge de manoeuvre.Footnote 86 For example, Israel has argued that an armed conflict short of war applies against Palestinians militants, allowing it to simultaneously use aspects of the LOAC and the ICL model in the occupied territories.Footnote 87 Such legal gray zones can permit a wide range of state action, leading critics to claim that states ‘forum shop’ in order to have their cake and eat it too.Footnote 88 But non-state actors fighting against states, as well as those who want to restrict state violence for other reasons, are also aware of these differences in legal frameworks and seek the application of more restrictive bodies of law to asymmetric conflicts, usually based upon criminal law or human rights.Footnote 89 Here we see an interesting combination of agent-centered and structural approaches. The various legal frameworks created by states are more than just ‘the rules of the game’ that structure strategic interaction; rather, arguments and decisions regarding which rules apply can be important moves in their own right.
The legality of certain strategies, tactics, and weapons
Within the conflict itself, states are also pushed toward compliance with international law, and non-state actors away from it, by their own strategic interests. Indeed, it is difficult to dispute that lawful fighting is much easier for the powerful than for the weak.Footnote 90 Aerial bombardment is legal. Human shielding is not. This asymmetry affects the strategic choices states and non-state actors face regarding whether to comply with key aspects of LOAC such as distinction and proportionality, as both sides seek to maximise their respective strengths and expose their opponent's weaknesses.Footnote 91 States tend to favour a ‘legal’ fight, where their material capabilities will be privileged. Non-state actors usually do not have the same interest in complying with a law that is so obviously skewed to a state's advantage.Footnote 92 While the possibility of ending up in the ICC docks for infringements of international law may provide some incentive for non-state actors to comply with international law, in situations where the very act of their fighting is already declared illegal it is doubtful that this serves as much of an added deterrent. In any case, non-state actors such as the Taliban and Iraqi insurgents have thus far frequently departed from accepted norms in order to gain ‘their own asymmetrical edge, one capable of neutralizing the technological asymmetrical advantage enjoyed by their enemies’.Footnote 93 Rockets are launched indiscriminately at civilian areas, suicide bombers disguise themselves as women, snipers hide in parapets, and arms caches are hidden in hospitals, places of worship and cultural sites. The examples of such behaviour in places such as Iraq, Afghanistan, and Gaza are numerous.Footnote 94 In the battle of Fallujah alone, for example, it is estimated that sixty mosques were used as bases by insurgents for military operations.Footnote 95
The asymmetries in obligation discussed above usually preclude a state breaking the law in response to non-state violations of the LOAC. The international community expects better from democratic states. Because democracies and their populations recognise the maintenance of certain legal standards as preferable for both moral and instrumental reasons and because the image of the law holds such normative sway, they generally restrain their forces.Footnote 96 To give one high profile example, Seymour Hersh reported that on the first night of the war in Afghanistan, the US called off a Predator strike on Taliban leader Mullah Omar due to JAG's concerns over excessive collateral damage.Footnote 97 This reticence to descend into barbarism can be manipulated by non-state actors, eliciting cries that they are exploiting civilised standards for uncivilised ends. Indeed, in 2006, Israel claimed that Hezbollah's tactics of fighting amongst the population and human shielding were directly responsible for the number of civilian casualties in Lebanon.Footnote 98 All things being equal, then, it is more rational for states to choose legal strategies and tactics and more rational for non-state actors to choose illegal ones. This lack of common interest does not bode well for reciprocal compliance.Footnote 99
Legal asymmetries in legal and political debates
The legal frameworks chosen and the dynamics on the ground have implications for the domestic and international political and legal debates that swirl around asymmetric war. Non-state actors bait state militaries into breaking the law, or at least appearing to do so, and then criticise them with the full force of the media. While such tactics are not unique to modern asymmetric conflict, non-state actors use this form of entrapment to exploit democratic divisions by fostering moral outrage over purported legal violations and thus winning sympathy – lawfare at its most frustrating. Illustratively, an al-Qaeda training manual recovered by British police included specific instructions to file false claims of torture in order to complicate legal proceedings, exploit Western respect for the rule of law, and appear to be the victims in the media.Footnote 100 Here law becomes an integral part of the realist strategic calculus for non-state actors who play on asymmetric expectations and (mis)use legal terminology to manipulate international and domestic institutions and create negative public opinion, not just to delegitimise the enemy but to constrain their actions over time. Asymmetries in law are used to nurture and exploit advantageous asymmetries in strategy.
In these efforts, illiberal non-state actors occasionally find unexpected allies in certain NGOs and civil society groups which face an awkward possibility: by condemning state actions in legal terms or by seeking to apply more restrictive standards of IHRL or ICL to the conduct of state officials during war, well-meaning, liberal-minded civil society groups can find themselves aiding the war effort of the illiberal enemies of Western states.Footnote 101 Both seek to constrain the power of the state – one for cynical and strategic purposes, the other for ethical reasons, which aspire to achieve a higher standard of behaviour for all. Noble intentions notwithstanding, NGOs can find themselves defending the interests of their own government's enemies and some of the most illiberal violators of human rights. Indeed, excessive legal criticism of a state's legal record can limit state action abroad as states take certain strategies off the table in order to fight more legally.
As mentioned, the push for the humanisation of war has been so effective that states now sometimes adopt standards which are more exacting than legal ones. In this regard, the US has recently suggested that it would base targeting decisions for Drone strikes in the international campaign against terrorism on some mixture of combatant status (that is, belonging to a terrorist group) and direct threat,Footnote 102 a commitment that the UN Special Rapporteur for Human Rights has praised as offering ‘a higher level of protection than is required by international humanitarian law’.Footnote 103 Similarly, as part of General Petraeus's counterinsurgency strategy, the US made the policy decision in Iraq to go beyond legal requirements and limit civilian casualties even if it put US forces at risk. On one hand, such moral progress is to be commended. On the other hand, to the extent that more aggressive strategies would be effective – in itself an open questionFootnote 104 – adopting such a high standard could prolong the conflict and expose a state to criticism for not ending the war more quickly. This is not to say that liberal democracies are not much stronger in the long run for these divisions,Footnote 105 only that legal criticism and scrutiny bring short-term costs in terms of national resolve and in taking certain strategies off the table.
Despite this disadvantage, states are not helpless in this other ‘air war’. Owing to their status as chief international lawmakers, states can manipulate or reinterpret the rules in ways that suit their new situationFootnote 106 and use state institutions and access to media to defend their policy and paint their enemies as pernicious, unscrupulous law-breakers.Footnote 107 States even use videos to prove their actions lawful and those of their enemies unlawful. During 2008–9's ‘Operation Cast Lead’, the Israeli Defence Forces (IDF) produced compelling videos of Israel's ‘roof knocking’ technique, where a warning missile is fired at the corner of a roof where ‘human shields’ have congregated in order to compel them to leave a building serving as an arms depot. Secondary explosions following the building's destruction confirmed the presence of illicit arms.Footnote 108 This is but one example of the many channels states use to spread and defend their legal positions on contested incidents and secure their interests.
Legal asymmetries after conflict
(De)legitimisation, punishment, and reshaping the rules
Wartime legal debates spill into postwar rhetorical and legal battles over legitimacy as each side strives to frame the conflict in advantageous terms and prepare the terrain for possible future conflict.Footnote 109 The chosen language for claims and counter-claims, accusations and justifications in the modern world is almost exclusively legal.Footnote 110 Non-state actors and their allies often use international institutions such as the UN Human Rights Council to organise special investigative commissions and expose state ‘abuses’ in order to delegitimise the state war effort.Footnote 111 Here, the legal framework one employs becomes extremely important. For example, in the Goldstone Report that criticised Israeli and Hamas actions during the Gaza conflict, ‘a number of the allegations of offenses said to have been committed by the IDF are based exclusively on presumed violations of human rights law – not the law of armed conflict’.Footnote 112 Naturally, states go to great lengths to defend themselves against such accusations, sometimes conducting credible investigations into their own activities as the IDF did following Goldstone.Footnote 113 It should be noted that few consider non-state actors to be capable of, or interested in, the same rigorous process and it is neither asked nor expected of them.Footnote 114 This suggests that there is also an important asymmetry of accountability between states and non-state actors.Footnote 115
Of course, states are not always on the defensive after conflict. As mentioned, states also use legal means, whether international or domestic civil or military trials, to try, convict, and punish non-state foes having the temerity to challenge state authority.Footnote 116 For their part, non-state actors and their allies strategically file libel, harassment, or hate speech lawsuits to pester or silence their rivals and critics,Footnote 117 and pressure third party states to arrest state officials allegedly guilty of war crimes. The secretary general of Hezbollah himself has supported this tactic, stating: ‘We have to sue the Israeli leaders anywhere possible in the world. Suing Israel for its crimes will render Israeli leaders beleaguered and perplexed.’Footnote 118 To give a specific example from a slightly different context, in 2009 a plaintiff working on behalf of Palestinians successfully got a warrant issued by a British court for the arrest of former Israeli Foreign Minister Tzipi Livni.Footnote 119 The fact that the UK government ultimately changed the law governing arrests for war crimes reinforces the claim that national prosecutions based on universal jurisdiction are largely subject to political considerations.Footnote 120
Perhaps most difficult for states, domestic courts can constrain state action through their decisions.Footnote 121 While courts tend to respect the national security prerogatives of the Executive, they have played a crucial role in extending legal constraints into the legal twilight zones of modern war. For example, in the Hamden Decision, the US Supreme Court simultaneously rejected the US claim that al-Qaeda had no Geneva protections – arguing that all prisoners must receive at least a minimum standard of protection – while accepting the US argument that the LOAC applied to the War on Terror.Footnote 122 All this suggests that, far from simply being a route to cooperation or a civilising force, international and domestic legal institutions become extensions of the field of battle. The use of legal action and rhetoric represents the continuation of war by other means.
A waning of the conflict presents all interested parties with an opportunity to pause and review the rules to assess whether they sufficiently address modern realities. Has the right balance been struck between military necessity and human dignity? What holes in the framework need to be plugged, and how? Are there unexpected, perverse consequences to purported legal and moral progress? In such times, debates over what the rules are merge into debates over what the rules should be and interested parties act strategically to further their own interests. Given its stellar reputation with governments and NGOs, the ICRC is particularly well suited to lead and mediate such efforts. It has recently led in-depth examinations into the LOAC's sufficiency to regulate modern conflicts, generating important recommendations regarding the application of the LOAC against non-state actors.Footnote 123 With certain key exceptions, such as the rules surrounding detention, the ICRC concluded that the existing rules have the necessary flexibility to apply to conflicts with non-state actors; what is needed is greater compliance with existing law rather than new rules.Footnote 124 Given their vexing experiences of fighting non-state actors who systematically break the LOAC as an integral part of their strategy, some states are bound to protest that the ICRC is not taking sufficient account of state security interests, especially when one recalls ICRC prescriptions giving non-state actors more formal protection than state soldiers.Footnote 125 While states ultimately hold the trump card regarding the creation or affirmation of international law, the contributions of the ICRC are difficult to ignore. Whatever the end result, these important debates will determine the nature of the legal asymmetries shaping future wars.
Implications for the study of law and asymmetric war in IR
To recap, the preceding discussion of the role of international law in asymmetric war suggests that law has become closely integrated with state and non-state violence even as it has become the medium through which moral claims and justifications of power are generally made. Actors address international law according to utilitarian logic, based on the consequences of following, bolstering, discarding, or stretching it. The law is interwoven into debates over strategy, morals, and identity, and it affects the course of war on the ground. Law is used as a tool of the war effort, but it could not be so ‘used and abused’ if it did not have strong normative force. In short, legal asymmetries interact with other asymmetries to structure asymmetric wars between states and non-state actors in myriad complex ways.
This has significant implications for the study of IR. First, given that law is an integral part of asymmetric war it should prove useful to further consider how legal asymmetries interact with other asymmetries to benefit state and non-state combatants. As the above discussion shows, asymmetric capabilities lead to asymmetric rights and obligations. Asymmetric rights and obligations lead to asymmetric strategies. Asymmetric strategies lead to asymmetries of resolve. The links between legal and other asymmetries present a fascinating area for future research and legal asymmetries could be fruitfully incorporated into other theories of asymmetric war. While this article deals primarily with the perspective of a democratic state fighting a non-state adversary, complementary lines of inquiry could explore how non-state actors themselves view and engage with international law during asymmetric war – a perspective that is relatively absent from current literatureFootnote 126 – as well as examine how legal asymmetries shape conflict between states.
Second, whereas IR has tended to clump all types of international law together, often considering it irrelevant, a greater appreciation of the different legal frameworks and how they are chosen, used, and abused by state and non-state actors would contribute both to IR work on asymmetric conflict and to the study of forum shopping and regime complexes.Footnote 127 This article suggests that the success of a state's forum-shopping efforts, not to mention views regarding the sufficiency of the frameworks themselves, will vary according to audience.Footnote 128 Human rights advocates, whose primary concern is human life and dignity, seem to privilege IHRL and ICL, and view the application of the LOAC to conflicts with non-state actors as providing a blank cheque for states. If the LOAC must be applied, states should be held to higher standards and state actions must still be informed by IHRL and ICL. In contrast, government officials and military lawyers, who are more attuned to the demands of military necessity, seem more likely to view a flexible application of the LOAC as the best of a bad bunch in terms of frameworks for wars against non-state actors. Courts have tended to fall somewhere in between the two camps. These differences present interesting possibilities for research on the relationship of different actors to different bodies of law and/or how these dynamics relate to asymmetric conflict.
Third, both legal asymmetries between states and non-states, and the differences in bodies of law, have implications for the IR compliance literature, which has focused mostly on international treaty compliance by states. Such a focus seems too narrow in asymmetric war against non-state actors, where customary law plays a significant role, it is uncertain which body of law applies, and the two parties do not have equal incentives to comply. Indeed, states could be forgiven if they answer accusations of law-breaking by asking: ‘Which law?’ or ‘What about them?’ This article also raises the related possibility of over-compliance, wherein states sometimes adopt standards that go beyond their legal obligations. Exploring these issues further would help ascertain the true levels of, and reasons for, compliance with international law and expand a useful body of scholarship to new and pressing areas.
Fourth, and more broadly, to conceive of international law as simultaneously restricting and enabling wartime violence requires IR scholars to follow IL scholars in taking an outlook that crosses divides both within and between different disciplines to better understand the vexing problems at the intersection of law and war. This article therefore echoes previous calls for a more eclectic approach to IRFootnote 129 – one that is particularly useful for exploring asymmetric war, where the messy reality does not completely match the expectations of any single paradigm, yet partially matches the expectations of them all. While the last two decades have seen a welcome increase in scholarship comparing IR and IL's respective bodies of theory,Footnote 130 there have been fewer attempts in IR to apply the insights of both disciplines to the study of war. Indeed, IR scholars have been less open to incorporating IL scholarship than vice versa in most subject areas,Footnote 131 thus diminishing IR's effectiveness and resulting in the peculiar situation where IL scholars seem to capture more of the reality of modern asymmetric war than do IR scholars. This article suggests that focusing on international law does not mean abandoning realist assumptions about the importance of power; even studies of conflict can benefit from an interdisciplinary approach that takes the law, and IL, seriously. Ultimately, this offers a way to cast aside theoretical squabbles in favour of a cooperative discussion focused upon understanding complex realities – a key step in making theory relevant to the real-world practice of international relations.
Implications for the practice of international relations
Understanding how legal symmetries channel, constrain, and facilitate the use of force in asymmetric war also has practical implications. While providing some guidance to humanitarians who wish to constrain state violence in pursuit of a better world, it reveals the dangers of legal advocacy when certain actors feel no compunction about using the law's power as a tool for nefarious ends. Human rights can make for strange bedfellows, and excessive badgering of responsible militaries might do more harm than good in the long run if it enables victory for non-state actors such as al-Qaeda and the Taliban. State revision or application of the law should not always be met with moral opprobrium. These actions can represent thoughtful and necessary efforts to adjust the rules to new strategic and moral realities and address the fact that states disadvantage themselves by applying old rules, meant to be reciprocally applied between states, to new conflicts where reciprocity does not exist. Further, seeking to have IHRL displace the LOAC in conflicts against groups such as al-Qaeda may make legal conflict next to impossible for states.Footnote 132 Raising the bar too high could perversely reinforce the law's reputation as something that is strictly utopian (that is, not relevant for war). International law risks losing its normative force if, in its idealism, it forgets to take into account the moral limits of the real world.Footnote 133 Therefore, humanitarians too must face the responsibility of considering the potential consequences of their actions – no easy task for those steeped in a deontological, absolutist moral culture.Footnote 134
This article also offers lessons for civilian and military policymakers, and argues that the law should be understood and respected not only by those who wish to end wars, but also by those who seek to win them. If the law is considered merely to be a static, objective, and detached set of rules – something only to obey or to ignore – policymakers risk being blindsided by their enemies’ exploitation of widely-shared, idealistic perceptions of how the world ought to be. A better recognition of how law is used by one's foes allows for the preparation of a better defence – a counterlawfare. Yet there are also risks in considering the law to be infinitely malleable and subjective – something only to manipulate and deploy. Indeed, recognising that the use of law has its limits, and its power, in the aura of legitimacy surrounding the idea of law encourages humility and temperance. The law is not so easily controlled and has unforeseen effects. When the law is too quickly dismissed or the gap between deeds and words grows too great, it can delegitimise state action, or even the law itself.Footnote 135
Perhaps most importantly, an understanding of the legal asymmetries in asymmetric war should make clear for operational commanders and strategic decision-makers the importance and consequences of legal decisions at various points in the command chain. Given the widely-held expectation that democratic states will comply with international law and maintain a functioning system of international rules, and given how effectively non-state actors and their supporters exploit state breaches (or perceived breaches) of international law to magnify divisions within democratic societies and erode support for the war effort, commanders have a tremendous responsibility to limit any actions that could be perceived as illegal. As General Petraues recognised in Iraq, this can require democratic forces to occasionally tie their own hands and sacrifice short-term exigency for longer-term legitimacy – to accept tactical setbacks for strategic gains.
Given that this can mean putting military personnel in even greater danger – in effect, accepting greater personal risk to mitigate national legal risk – national political, policy and military leaders must ensure that citizens understand and support the choices their government makes regarding military actions and international law. This becomes both a moral issue and a strategic imperative given the corrosive effect that deep domestic divisions over the law can have on a nation's will to fight. To the greatest extent possible, national leaders must debate these issues openly in order to build a broad democratic consensus and ensure that their citizens have confidence in how the wars being fought in their name are conducted. This requires partisans on all sides to recognise the complexity and importance of the interrelationship between international law and asymmetric war. It is not enough to pretend that existing law is irrelevant against non-state actors or to suggest that it can be easily applied to radically new situations. The practical message of this article therefore follows directly from its theoretical implications: there are dangers inherent in considering law either to be irrelevant to the use of force or strictly opposed to it. The solution suggested in this article is to adopt a framework which incorporates both the law of power and the power of law. By cultivating such a legal understanding and respect in all levels of their government and citizenry, democratic states can begin to turn a perceived weakness into a source of enduring strength.
