People who write about war — and many do — generally end up writing about the wars of their own place and time. From the start, legal questions have been at the center of debates about my own country’s recent wars, none more than our current “global war on terror.” Is Guantanamo an egregious violation of the law in war or a legitimate use of the President’s Constitutional power as Commander in Chief?
Was the Coalition invasion of Iraq authorized by prior UN Security Council resolutions? Was it a legitimate act of preventive self-defense — or yet another example of the American administration’s disinterest in the multilateral legal framework it had taken more than a generation to build?
Today, political leaders and their lawyers scurry to answer these questions with a blur of arguments about what the law permits. Opponents of administration policy find it easier to raise legal than political questions. And the administration finds it easier to defend the President’s legal prerogatives than his policies.
This afternoon, I’d like to step back from these immediate controversies, to explore three ideas.
First, modern war as a legal institution. Once a bit player in military conflict, law now shapes the institutional, logistical and physical landscape of war.
Second, modern law is surprisingly fluid. International law is no longer an affair of clear rules and sharp distinctions. Indeed, as law became an ever more important yardstick for legitimacy, legal categories became far too spongy to permit clear resolution of the most important questions — or became spongy enough to undergird the experience of self-confident outrage by parties on all sides of a conflict.