New Threats, New Rules
Revising the Law of War
Tomas Valasek*

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Over the past few years, the United States and its European allies have drawn closer— much closer than the debate over Iraq would suggest—in their views on the need for military force in responding to new security threats. The French and the British have increased their military budgets and both countries are acquiring additional aircraft carriers to extend their military reach, much as Washington has long urged them to do. The Franco-German proposals to the European Convention speak of using forces under European Union control to take military action to prevent the proliferation of weapons of mass destruction. And all 19 NATO allies are now formally committed to exploring the value of missile defenses in protecting the alliance’s forces and population centers. That is not to say that Europe and the United States think alike on issues of defense and security. Most Europeans disagree with Washington as to when diplomacy should end and bombs start falling. But the major European countries have become distinctly more hawkish, even if their governments chose not to advertise their thinking at a time when millions of Europeans were demonstrating against the war on Iraq.

However, there is one issue where differences between the United States and Europe persist, namely on the legitimate use of force under existing international law. The resulting tension is not new. The United States has a unique sense of global responsibility, and it has always sought to retain considerable leeway for action within the international institutional and legal framework that it helped create following the Second World War. Europe, whose postwar success was built on institutionalizing relations between former enemies, fears few things more than the collapse of the complex web of laws and institutions that bind the European Union and a return to balance-of-power politics in Europe and beyond. With the new U.S. preemptive strike doctrine put forward by the Bush administration and Washington’s "take it or leave it" attitude toward the United Nations, more and more Europeans are asking if the United States still believes, as they do, that international laws and institutions make the world a more stable and predictable place.

On one level, Europe and the United States have indisputably drawn apart. Washington’s policy is always a mix of competing ideologies and preferences but most decisions coming out of the White House these days seem rooted in a worldview, alien and appalling to many Europeans, that holds international law secondary to the projection of military power. On this point, there is little room for compromise with Paris or Berlin. But Washington is also acting out of conviction that the law of war is hopelessly outdated in the light of new security threats—and on this point, it finds grudging assent from its European allies. It has been said that "no rules will work that do not reflect underlying geopolitical realities." ¹ Behind the stormy front of the U.S.-European confrontation over Iraq, both sides have been quietly working out just what exactly those new realities are following 9/11, and how to best deal with them. They seem to be coming to conclusions that are not entirely dissimilar and that suggest a possible new "grand project" that would help bring the security views of America and its European allies more in line with each other.

The rules that govern the legitimate use of military force encompass a number of treaties, international agreements, and conventions— with the U.N. Charter at their center. The conduct of war is governed by a large body of humanitarian law, most prominently the Geneva and Hague Conventions. This body of law evolved over centuries and draws heavily on past customs and regulations. (The first of the four Geneva Conventions was signed in 1864.)

But are these rules, which were drawn up when war was largely the business of nation-states and the imminence of attack could be measured in months and weeks, still relevant in the age of global terrorism and ballistic missiles? The U.S. preemptive attack doctrine, the 1999 war in Yugoslavia, and the more recent Russian military actions in Georgia all bend or break the law of war as it has traditionally been understood. The cumulative effect of these events one expert noted, is the "conclusion that the [U.N.] Charter provisions governing use of force are simply no longer regarded as binding international law." ²

What has changed?
Nonstate actors are playing a larger role.
The U.N. system was set up to regulate relations— including the declaration of war— between states. As Antonio Cassese, former president of the International Criminal Tribunal for the former Yugoslavia, notes, "Self-defense was justified only against States.... As a consequence, the target was specified: the aggressor state. The purpose was clear: to repel the aggression.... Now...these conditions [have] become fuzzy." ³ The advent of globally organized terrorist groups has changed this picture. Moreover, because terrorist groups do not live in a vacuum, the need has arisen to establish legal means of determining the responsibility of the state on whose territory they are based for their actions. Secondary legislation—U.N. Security Council resolutions— partly fills the gaps left in the U.N. Charter. The Security Council has established that terrorists may be considered agents of the government that harbors them and has made it illegal for states to sponsor or shelter them. But that still leaves open the question of whether war on state sponsors of terrorism is legal under the self-defense clause of the U.N. Charter. Moreover, should captured terrorists enjoy the same protection under the Hague and Geneva Conventions regarding prisoners of war as captured enemy troops?

The problem of failing or failed states.
Further complicating the problem of state sponsorship of terrorism is the existence of failing or failed states: countries without a central government, with a government that controls only a portion of the state’s territory, or with several competing governments. If a government does not control large parts of its own territory, can it be held responsible for actions of terrorist organizations based in those areas? U.N. Security Council resolution 748 (1992) holds that "every State has the duty to refrain from instigating, assisting, or participating in terrorist acts in another state, or acquiescing in organized activities within its territory directed towards the commission of such acts, when such acts involve a threat or use of force." In, for example, the case of Chechen militants who may have fled to remote parts of Georgia, would the inability of the Georgian government to prevent their actions constitute acquiescence in their terrorist activities?

The technological nature of the threat is changing the definition of self-defense.
The Bush administration’s National Security Strategy, adopted in 2002, justifies recourse to preventive military action on the grounds that it constitutes the only appropriate defense against the threat of weapons of mass destruction. International law has never satisfactorily clarified whether any form of anticipatory defense is allowed under the self-defense clause (article 51) of the U.N. Charter. But it is generally accepted—both in theory and practice—that states do not have to wait to be attacked before responding if there is overwhelming evidence of the enemy’s war preparations. But what is the threshold for such evidence? Elihu Root, U.S. Secretary of War (1899–1904) once defined self-defense as "the right of every sovereign state to protect itself by preventing a condition of affairs in which it will be too late to protect itself." In an age when so-called rogue nations possess ballistic missiles and weapons of mass destruction, should this become the guiding principle?

Humanitarian law is challenging state sovereignty.
Does state sovereignty protect governments that abuse their own citizens? The answer in practice would seem to be no, as evidenced by the 1999 NATO bombing of Serbia to protect the ethnic Albanians in Kosovo from the Serb security forces. Yet Article 2(7) of the U.N. Charter states that "no other State, and no international organization may scrutinize what is happening inside a state except with the full consent of the territorial State." If this principle no longer holds, then what sorts of behavior on the part of governments justifies intervention?

The task of devising legal responses to these trends is beyond the scope of this essay; the purpose of these examples is to make a case for a comprehensive review of the law of war. This effort must not be confused with a vain pursuit of an all encompassing legal doctrine governing international relations. There is a powerful case to be made for deliberate ambiguity on certain points. Such ambiguity allows for the exercise of power in exceptional cases without the risk of undermining the entire legal framework. The problem is that, in today’s security climate, yesterday’s exceptions are becoming today’s rules. Without meaningful reform, incorporating a more flexible and generous view of a state’s right to defend itself against terrorism and weapons of mass destruction, the law of war flirts with irrelevance.

The recent debate over Iraq encapsulated most of the legal questions that have arisen in the past decade. The United States, in making its case for war against Iraq, gave as its reasons Baghdad’s sponsorship of a non-state terrorist group (al-Qaeda), the need to eliminate Iraq’s weapons of mass destruction, and the duty to rid Iraq of a murderous dictator (the humanitarian argument). While European governments were divided on the need for military action against Iraq, there was widespread agreement among Europeans on one point: the use of military force against Iraq had to meet a high standard of legitimacy.

For all their differences, Paris, London, Rome, Madrid, and Berlin concurred that a military strike against Iraq—or any use of force—must not threaten the international system that had been painstakingly constructed over the past century and more. ⁴ This required the White House to put its case through a more rigorous and cooperative diplomatic process than it was initially willing to do. Legitimacy in this instance roughly translated into securing broad international approval for the use of force. So deeply ingrained is the concern in Europe about relaxing the rules on the use of force that it led a number of EU members to oppose the proposed U.S. action even though, in the narrower context of the threat posed by Iraqi weapons of mass destruction, they may actually have agreed with the U.S. position.

An Opportunity for Rapprochement
The disagreements over Iraq have inspired pessimistic prophecies about the end of the West as a political entity, but the obituaries may be premature. A closer look at the thinking underlying Washington’s and Europe’s views on the law of war offers a tantalizing, although admittedly limited, opportunity for rapprochement.

What determines the extent to which governments are willing to bind their own hands—and those of the other states—with international legislation? For essentially status quo powers such as the United States and EU members, it is a matter of balancing two competing objectives—a desire to "lock in" their generally favorable international position by devising rules that are both far-reaching and strict to prevent conflict and instability. On the other hand, recognizing that such rules by themselves will not prevent the rise of all threats to the status quo, the rules must have enough built-in flexibility for the powers to exercise force, where necessary, without undermining or destroying the credibility of the international legal system as such.

For President Bush and his closest advisors, stability is best guaranteed by a distribution of power that strongly favors the United States, and international law is seen as an unwelcome constraint. When the White House speaks of the "international order," it does not think of the U.N. Charter as its organizing principle; rather it refers to a set of informal relationships based partly on the desire of others to emulate America’s economic success, but also on their respect for—and fear of—U.S. military power.

Unlike Washington, most European capitals view military power—and the temptation to use it—as a potentially destabilizing factor. At the risk of oversimplification, one can say they believe that Western norms are best spread by exposure in a free marketplace of ideas, where clear rules of behavior apply through adherence to the accepted tenets of international law. Military power, except when used in self-defense, or in pursuit of other legitimate ends recognized as such by the larger international community, too often inspire insecurity and resentment among the less powerful of America’s putative partners.

However much the Bush administration may be guided by its own view of international law, its policies are also a product of the sense of vulnerability brought about by 9/11. In the administration’s thinking, if maintaining the status quo means enduring more catastrophic terrorist attacks, change is clearly called for. This could—and in the current administration’s view clearly should—entail switching to a more proactive use of U.S. military force in order to eliminate emerging threats. If the law of war stands in the way of that approach, it will have to be changed, or it will be ignored. A government that was already skeptical about the power of law to regulate state behavior will hardly shed a tear over the damage done to the international legal system. But that government cannot be entirely faulted for ignoring antiquated international rules that could prohibit it from protecting its citizenry.

On this latter point, many European countries have gone through a thought process very similar to Washington’s. The belief that pre-9/11 defense strategies do not correspond to new security threats—threats not only to the United States but also to Europe—is reflected in the national security documents of the key European states. It is also strongly echoed in ideas put forth in the European Convention, which is charged with producing a new constitutional treaty for the European Union.

To compare U.S. and European approaches to security, it is useful to consider the following questions: Has the evolving security environment necessitated new forms of application of military power? Have governments taken part in or begun preparing for the new types of missions? Are Europeans themselves willing to use military force to stop the spread of weapons of mass destruction?

There is no Europe-wide threat assessment or security strategy. The European Union’s developing common defense institutions have so far evolved without them, in part because of the persisting division of responsibilities in Europe. Although power over defense policies is slowly drifting toward Brussels, most decisions are still made in the national capitals. Of those, three in particular—London, Paris, and Berlin— have traditionally set the course for EU policy.

Britain and France, both long-established global powers, have maintained relatively large militaries as well as a significant ability to project force abroad. For most of the Cold War, West Germany’s large forces, with their emphasis on heavy armor, formed an essentially static line of defense against the expected attack from the communist east. That was the only kind of mission that successive postwar German governments dared to adopt.

A Shift in Europe’s Thinking
With respect to European defense strategies and threat assessments, the 12 years between the fall of the Berlin Wall and 9/11 were a period of great flux. Defense establishments on both sides of the Atlantic struggled to adapt to changed circumstances as exuberance over the demise of the Soviet Union gave way to the grim prospect of civil wars in the Balkans and then to catastrophic acts of terrorism.

The Balkan wars were the first test case for Europe’s commitment to the law of war. In 1999, after sitting out the war in Croatia (1991–92) and the war in Bosnia (1992–95), the NATO allies decided to act early before the conflict in Kosovo between Serbs and ethnic Albanians could lead to another humanitarian disaster. The four-month bombing campaign against Serbia, aimed at forcing the Serb army to withdraw from Kosovo, broke new legal ground for the Europeans and touched off an intense and ultimately inconclusive debate over the need for a new "humanitarian war" doctrine. Although no such doctrine resulted, the principle that military interventions to achieve humanitarian objectives did not require the approval of the U.N. Security Council had been established.

The Balkan wars also helped coax Germany out of its policy of nonintervention. During the Cold War, Germany’s reluctance to use force reached the point such that an unnamed senior official complained that "[Germans] have no understanding of power. It is seen here as negative." ⁵ However, in response to the Balkan wars, Berlin has since revised its policy of nonintervention abroad and has also been gradually moving toward developing more power projection capability. ⁶

European defense policies went through an equally dramatic change after the terrorist attacks on New York and Washington. Writing in early 2002, Thérèse Delpech, an experienced observer of French foreign and security policies, said that France "would not accept the proposition that it has adversaries." ⁷ Delpech attributed Europe’s tendency to downplay threats to the lingering memory of past wars, an excessive military dependence on the United States, and poor strategic intelligence capabilities. But as the full impact of 9/11 sank in, the tone in Paris changed dramatically. In a speech before the National Assembly last November, the French minister of defense, Michèle Alliot-Marie, said: "A decade after the end of the Cold War, we expected a new world order that would bring stability and peace. Contrary to our hopes, threats to peace have accumulated. Regional crises have multiplied. The development of ballistic missiles and weapons of mass destruction continues; North Korea is the latest example.... With the terrorist attacks in the United States on September 11 and in Karachi and in Bali, large-scale terrorism has become a reality. It threatens directly the lives of our citizens and our national interests." ⁸

The German defense establishment takes a similarly gloomy view. "The international environment [has] presented Germany with new challenges in the past few years," German minister of defense Peter Struck wrote this past January. "Some have been unleashed by the terrorist attacks of September 11, 2001; other have simply been elevated to a more prominent status. The security situation has become more complex than in the previous decades." ⁹ Struck elaborated on this theme in a speech in early February: "More and more states and non-state actors are seeking to procure weapons of mass destruction and ballistic delivery systems and are thus undermining both regional and global security. Chemical, biological, radiological, or even nuclear weapons in the hands of terrorists are one of the greatest threats of our times. Against this backdrop, the mission spectrum of the Bundeswehr has changed fundamentally over the past few years." ¹⁰

More specifically, the French "2003– 2008 Military Program Bill of Law" alludes to a policy of preemption against terrorist networks: "The improvement of long-range strike capabilities should constitute a deterrent threat for our potential aggressors, especially as transnational terrorist networks develop and organize outside our territory, in areas not governed by states, and even at times with the help of enemy states." ¹¹ The bill provides for increases in spending on military equipment (including another aircraft carrier) by nearly $2 billion a year for the next six years. The overall French military budget for 2003 rose 6.1 percent over the previous year’s budget. ¹² The British, who have essentially sided with Washington in its assessment of the threat and its proposed response throughout the post-9/11 period, have themselves responded to the new environment with the biggest sustained real increase in defense spending in 20 years. Britain’s defense budget, already the largest in Europe, will increase by 1.2 percent annually until 2006. ¹³

But the question remains: are the Europeans willing to use military force preemptively to stop the spread of weapons of mass destruction? Tantalizingly, even taking into account the need for ambiguity given the legal implications and the political sensitivities surrounding this proposition, the answer for many of the major actors is that they are. Britain’s position on the issue is clear: it has stood alongside the United States throughout Washington’s campaign to disarm Iraq, by force if necessary. But Britain is not alone. Last September, the French Ministry of Defense stated: "Outside our borders, within the framework of prevention and projection-action, we must be able to identify and prevent threats as soon as possible. Within this framework, possible preemptive action is not out of the question, where an explicit and confirmed threat has been recognized." ¹⁴ (Emphasis added.) The European Convention’s working group on defense is urging the EU member states to expand the European Union’s military tasks to include "joint disarmament operations (weapons destruction and arms control programs)."

National security documents are always subject to varied interpretations, intelligence agencies and military planners tend to err on the side of caution, and in democracies the decision to go to war is made by political leaders. That said, there has clearly been a shift in Europe’s thinking on the nature of the threat that Western democracies face and on the possible use of force in response to that threat. In this, Europe is closer to the United States than it might appear. But whether there is the political will to discuss revising the law of war remains to be seen.

Europe’s Options
Europe views the Bush administration’s new national security strategy as a broad attack on global rules and institutions, and its response to Washington’s war on terrorism and approach to Iraq has been a reflexive insistence on the primacy of international law, lest the entire international edifice come tumbling down. But this has led European governments to put Washington into a box that they would not necessarily choose to be in themselves. For example, few European officials would wish to argue that terrorists should be afforded full protection as prisoners of war under the Geneva Conventions, since they recognize the need to interrogate captured terrorists in order to gain information to prevent future attacks. Yet, by focusing on the legality of denying such protection to terrorists, Europeans simply made Washington angry.

Admittedly, Washington’s new emphasis on the projection of military power leaves rules-oriented Europeans with few options. Europe could continue to insist on a strict interpretation of international law as it pertains to war and thereby try to restrict America’s exercise of power. But this would be a disastrous path, one that could push Washington even further away from adherence to international law as such, not least because President Bush will not allow the security of the United States to be compromised by the observance of outdated norms. Nor is it a matter of waiting for a change of administration. There is broad agreement even among committed U.S. "multilateralists" that the law of war needs to be changed, and no future U.S. administration will return to the status quo ante September 11, 2001. ¹⁵

Europe’s other option is to seek to work with Washington to revise the law of war to reflect the changed nature of national security threats. The advantage to such an approach is that it begins from the premise that the rule of law is an important organizing principle of international relations. Many in the current U.S. administration will oppose any such effort. Some will do so on purely philosophical grounds, being opposed to any legal constraints on the use of power. Others may agree in principle but will be suspicious of Europe’s motives.

Europe therefore should articulate a coherent security strategy before seeking to engage Washington in talks on reforming the law of war. At the moment, there is no Europe-wide agreement on the nature or scale of the threats to the continent’s security. If EU member states were to produce a serious security strategy, either under EU auspices or through individual but coordinated approaches, it would give the European Union far greater leverage and credibility.

Europe should take the long view, engage those in the United States who believe in the multilateral system, and work with them to revise the law of war while resisting the urge to close ranks around an "anti-U.S. platform," as Germany and France appear to have been doing these past several months. Revising the law of war to reflect contemporary realities would also make it easier for those in the United States who believe in a multilateral approach to argue against American unilateralism.

Piecemeal additions to the existing body of law on war will not work since the entire edifice is in danger of collapsing under the weight of the new threat. Would comprehensive reform dramatically alter Washington’s behavior? The United States is unlikely to budge from its assessment of the threat it faces. But if it felt that the law of war was responsive to the new realities, it would be more likely to support and observe its requirements.

*Tomas Valasek is the director of the Center for Defense Information, Brussels.

1. Michael J. Glennon, "Military Action against Terrorists under International Law. The Fog of Law: Self-Defence, Inherence, and Incoherence in Article 51 of the United Nations Charter," Harvard Journal of Law, vol. 25 (2002).

2. Michael J. Glennon, "How War Left the Law Behind," New York Times, November 21, 2002.

3. Antonio Cassese, "Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law," European Journal of International Law, vol. 12, no. 5 (2001).

4. See Presidency Conclusions, Brussels Extraordinary European Council, February 17, 2003, at www.europa.eu.int/council/.

5. Quoted in John Newhouse, Europe Adrift (New York: Pantheon, 1997), p. 217.

6. Germany is the largest customer for Europe’s next generation of military transport, the Airbus A400M.

7. Thérèse Delpech, "A Safe and Secure Europe?" in Assessing the Threats, ed. John Newhouse (Washington, D.C.: Center for Defense Information, July 2002), p. 12.

8. Speech before the French National Assembly, Paris, November 28, 2002, available at www.defense.gouv.fr.

9. Peter Struck, "Deutsche Sicherheitspolitik und die Bundeswehr vor neuen Herausforderunged," Europaische Sicherheit, January 2003.

10. Speech to the Munich Security Policy Conference on the Future of NATO, February 8, 2003, available at www.bmvg.de.

11. Ministry of Defense, Paris, September 12, 2002. For the 2003–2008 Military Program Bill of Law, see www.defense.gouv.fr.

12. Keith B. Richburg, "In Shift, France Vows to Modernize Military ‘Financial Effort’ Now, Their Minister Says," Washington Post, October 16, 2002.

13. "£3.5 Billion Increase for British Defence— A Mandate for Modernisation," British Embassy, Washington, press release, July 15, 2002.

14. See note 11.

15. See, for example, G. John Ikenberry, "America’s Imperial Ambition," Foreign Affairs, vol. 81 (September/October 2002); and Gary Hart, "In Search of National Security in the 21st Century," speech given at the Council on Foreign Relations, New York, January 21, 2003.