Hi-Tech: New Law of War

Smith, Thomas W.

The New Law of War

Legitimizing Hi-Tech and Infrastructural Violence

This article examines how humanitarian laws of war have been recast in light of a new generation of hi-tech weapons and innovations in strategic theory. Far from falling into disuse, humanitarian law is invoked more frequently than ever to confer legitimacy on military action.

New legal interpretations, diminished ad bellum rules, and an expansive view of military necessity are coalescing in a regime of legal warfare that licenses hi-tech states to launch wars as long as their conduct is deemed just.

The ascendance of technical legalism has undercut customary restraints on the use of armed force and has opened a legal chasm between technological haves and have-nots. Most striking is the use of legal language to justify the erosion of distinctions between soldiers and civilians and to legitimize collateral damage.

Hi-tech warfare has dramatically curbed immediate civilian casualties, yet the law sanctions infrastructural campaigns that harm long-term public health and human rights in ways that are now clear.

Thomas W. Smith. University of South Florida. This article examines how humanitarian laws of war have been recast in light of a new generation of hi-tech.

The New Law of War: Legitimizing Hi-Tech and Infrastructural Violence, Thomas W. Smith, International Studies Quarterly, Vol. 46, No. 3 (Sep., 2002), pp. 355-374

Violence: Legitimate

The Legitimation of Violence

Part 1

A Critical History of the Laws of War

By

Chris af Jochnick and Roger Normand

HIGHLIGHT:

"Who controls the past controls the future;
Who controls the present controls the past."

-- George Orwell, 1984

I. INTRODUCTION

A. The Gulf War and the Promise of Law

The forty-three-day war waged against Iraq by the United States-led Coalition (the "Coalition") enjoys a reputation as one of the cleanest and most legal wars in history.

Despite evidence of disastrous long-term consequences for Iraqi civilians, the image persists of a new kind of war, a modern, high-tech "operation" that decimated the opposing military with minimal damage to the surrounding population.

Coalition leaders bolstered this image by repeatedly invoking international law in order to condemn Iraqi conduct and to praise the restraint exhibited by the Coalition forces both in the actual combat and in the events preceding it.

There is a critical unspoken assumption that gives rhetorical power to the idea of a legal war -- specifically, that a legal war is more humane than an illegal war. A legal war connotes a war that is proper and just, rather than a war that merely complies with a set of technical guidelines.

That the Gulf War is considered to be the most legalistic war ever fought adds to its image as a just and relatively humane war.

This Article challenges the notion that the laws of war serve to restrain or "humanize" war. Examination of the historical development of these laws reveals that despite noble rhetoric to the contrary, the laws of war have been formulated deliberately to privilege military necessity at the cost of humanitarian values.

As a result, the laws of war have facilitated rather than restrained wartime violence. Through law, violence has been legitimated.

Viewed from this perspective, the Gulf War does not represent the dawn of a hopeful new age of international law, but rather the continuation and even the intensification of a historical trend to legalize inhumane military methods and their consequences.

By obscuring bombing behind the protective veil of justice, the laws of war may have increased the destruction in Iraq. Despite the Coalition's reputation for targeting only military sites, most independent studies have put the civilian death toll at over 100,000.

This analysis of the Gulf War underscores the difficulty of using law to humanize war, but does not condemn the effort itself. The requirements of global security and prosperity in an interdependent world may yet lead countries to develop laws that impose effective humanitarian limits on the conduct of war.

In working to achieve such limitations, however, it is important to understand how past legal efforts to regulate war have often come to sanction the behavior they were ostensibly designed to prevent.

* * *

The Legitimation of Violence

Part 2

A Critical Analysis of the Gulf War

By

Chris af Jochnick and Roger Normand

***

(Harvard International Law Journal, Volume 35, Winter 1994, pp. 49-95)

(Harvard International Law Journal, Volume 35, Spring 1994, pp. 387-416)

The Gulf War and the Constitution

Michael J. Glennon

Foreign Affairs,

Spring 1991

Summary:

Examines the course of the Bush administration's decisions on despatch of US forces to the Gulf, and the "near-complete irrelevance" of Congress thereto, in order to demonstrate that the War Powers Act of 1973 should be repealed or revised, as Congress clearly lacks the weighty role in the matter of declaration of war that the Constitution intended for it.

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fletcher.tufts.edu/faculty/Glennon

Democracy Died at the Gulf

Part I, II

Richard Falk,

Center of International Studies, Princeton University

Falk_Democracy_Died_01

Falk_Democracy_Died_02

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