Abstract
Two major factors that have substantially altered the relation between war and law will be examined. One is the rise and scale of asymmetrical warfare and insurgencies. What this development over recent decades has made clear is that the abandonment of the laws of war has been part of a strategy to offset tactical disadvantage. Key to this is the use of terror mobilised against civilian local populations to disarm resistance and impose compliance, and then, via its representation induce fear in a wider population. The second factor is the pre-emptive use of force, which even when done under a United Nations resolution is legally questionable. Even more problematic are pre-emptive ‘surgical strikes’ by semi-autonomous weapon, most notably drones, in non–protagonist nations. Besides these two examples of the abandonment of law there are fundamental problems of the law itself. Again two in particular examples are to be registered: the contestable status of the claim of a ‘just war;’ and lack of clarity and problems associated with the unresolved definition in law of ‘a war of aggression.’
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- 1.
The complex impacts of climate change as linked to loss of biodiversity and the arrival of the sixth extinction event and vast numbers of displaced populations; possibility of a world nuclear war being two example—one of a creeping crisis and another that is omnipresent.
- 2.
Acts of aggression can be defined as armed invasions or attacks, bombardments, blockades, armed violations of territory by formal or informal. See Sergey Sayapin (2014), The Crime of Aggression in International Law, The Hague: Springer. On this historical complexity on International Crime and Wars of Aggression, see especially Carl Schmitt (2011), Writings on War (trans. Timothy Nunan), Oxford: Polity Press, pp. 125–197. War as crime (‘war of aggression’) was first established by The Geneva Protocol in October 1924, Schmitt, Writings on War, p. 145.
- 3.
Schmitt, Writings on War, p. 128.
- 4.
In 1974, the United Nations General Assembly adopted a resolution (3314) on crime of aggression, but it was not binding under international law. Though there is an opinion that it may reflect customary international law that is binding—the actual designation of an act of aggression by the UN is made by the UN Security Council. Actually dealing with the crime of aggression falls with the jurisdiction of the International Criminal Court, but this providing that all parties agree on a definition of it as well as the conditions under which it may be prosecuted. For a full account, see Larry May (2008), Aggression and Crimes Against Peace, Cambridge: Cambridge University Press.
- 5.
Ibid., p. 207.
- 6.
Carl Schmitt (1996), The Concept of the Political (trans. George Schwab), Chicago: University of Chicago Press, p. 49 (first published in Germany in 1932).
- 7.
Simon Tisdall, ‘Those Responsible for Syria’s Agony Must Be Brought to Justice,’ The Guardian, March 10, 2019. https://www.theguardian.com/world/…/isis-syria-war-crimes-accountable-assad-putin-icc (accessed April 9, 2019).
- 8.
Eric Wilson (2012), ‘The Concept of the Parapolitical,’ in Eric Wilson (ed), The Dual State, London: Routledge, p. 14. Nomos can be defined here as the “foundational act that creates a concrete territorial order as unity of (legal) order and spatial orientation”—de facto, ‘law as located’. See Louiza Odysseos and Fabio Petito (eds), (2007), Introduction to, the International Political Thought of Carl Schmitt, London: Routledge, p. 4.
- 9.
Mathew Coleman (2011), ‘Colonial War: Carl Schmitt’s Deterritorialization of Enmity,’ in Stephen Legg (ed), Spatiality, Sovereignty and Carl Schmitt, London: Routledge, pp. 127–142.
- 10.
Avram Alpert (2016), ‘Philosophy Against Violence: Kant, Thoreau and the Revolutionary Spectator,’ Culture, Media and Society, Vol. 33, No. 6, p. 52.
- 11.
William Rasch, ‘Afterword: Dual Schmitt, Deep Schmitt,’ in Eric Wilson (ed), The Dual State, p. 340.
- 12.
Alessandro Colombo, ‘The “Realist Institutionalism” of Carl Schmitt,’ in Louiza Odysseos and Fabio Petito (eds), The International Political Thought of Carl Schmitt, pp. 32–33.
- 13.
See for example, Sinclair Dinnen (2009), ‘Traditional Justice Systems in the Pacific, Indonesia and Timor-Leste,’ UNICEF Commissioned Paper, EAPRO Sub-Regional Workshop, p. 1.
- 14.
A.C. Grayling (2017), War, An Enquiry, New Haven: Yale University Press, pp. 187–196.
- 15.
Ibid., pp. 196–197.
- 16.
Carl Schmitt (2006) [1950], The Nomos of the Earth (trans. G.L. Ulman), New York: Telos Press, p. 161.
- 17.
See Sinem Hum (2014), ‘An Evaluation of Feminist Critiques of Just War Theory,’ DEP, No. 24.
- 18.
See discussion in Chapter 2.
- 19.
Walter Benjamin (1986), ‘Critique of Violence,’ in Reflections (trans. Edmund Jephcott), New York: Schocken Books, pp. 277–300. See also Katerina Kolozova, ‘Violence, the Indispensable Condition of Law (and the Political),’ Angelaki, Vol. 19, No. 2, June 2014.
- 20.
Michel Foucault (2003), “Society Must Be Defended” Lectures at the College of France, 1975–76 (trans. David Macy), Picador: New York, p. 50.
- 21.
See Louiza Odysseos and Fabio Petito (eds), The International Political Thought of Carl Schmitt, on the reconfiguration of the Großßraum—the global spatial order, pp. 14–15.
- 22.
May, Aggression and Crimes Against Peace, p. 20.
- 23.
Foucault, Society Must Be Defended, p. 51.
- 24.
The contemporary legal understanding of pre-emptive force is predominantly framed by the United Nations Charter Article 2(4), which prohibits the use of force, but the qualifies it with Article 51, which states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.
- 25.
Andrea Wagner (2012), ‘Lessons of Imperialism and of the Law of Nations: Alberico Gentili’s Early Modern Appeal to Roman Law,’ The European Journal of International Law, Vol. 23, No. 3, p. 881.
- 26.
Ibid.
- 27.
Ibid., p. 883.
- 28.
https://www.c-span.org/video/?c4530687/2002-wp-speech (accessed August 12, 2018).
- 29.
Brian Massumi, Ontopower, War, Power , and the State of Perception, Durham, NC: Duke University Press, p. vii.
- 30.
Ibid., p. 9. On pre-emption in general, see opening remarks, pp. 3–19 and elsewhere.
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Fry, T. (2019). Law: The Breaking and End of Rules. In: Unstaging War, Confronting Conflict and Peace. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-24720-1_5
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