Wars of Law: Unintended Consequences in the Regulation of Armed Conflict

| March 8, 2019
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Wars of Law book coverWars of Law: Unintended Consequences in the Regulation of Armed Conflict, Tanisha M. Fazal (Ithaca, N.Y.: Cornell University Press, 2018), 342 pp., $39.95 cloth.

Tanisha Fazal’s recent book takes a broad, sweeping look at trends in the laws of war over the last hundred years, covering both interstate and intrastate warfare. A landmark work on international politics and the law of armed conflicts, Wars of Law belongs on the bookshelf beside such major works as Michael Walzer’s Just and Unjust Wars, David Kennedy’s Of War and Law, James Morrow’s Order Within Anarchy, and Sandesh Sivakumaran’s The Law of Non-International Armed Conflict.

Fazal weaves a story with interlocking observations about recent trends in war and conflict, observing that states no longer declare wars as they did a hundred years ago; that interstate wars witness fewer and fewer peace agreements while intrastate wars see more and more of them; and that secessionist rebel groups follow the rules of war more than non-secessionist groups. How do we make sense of all these seemingly unrelated and puzzling phenomena?

The author examines the political motivations of key actors, particularly state militaries and secessionist rebel groups, in order to explain how the above phenomena are connected to each other. States no longer declare wars or conclude peace agreements so as to avoid the legal consequences that come with such formal declarations; secessionist rebel groups, on the other hand, increasingly sign peace agreements and abide by humanitarian rules to appease the international community. The commonality among these phenomena is that the regulation over the conduct of war has produced unintended consequences, and indeed the book’s subtitle encapsulates this key contention. The laws of war were made to govern the conduct of war, but over time the regulation produced the “wars of law” of the book’s title, where the consideration of legal and political consequences increasingly shaped warring parties’ behavior.

The author examines her claims using two original datasets: the Interstate War Initiation and Termination dataset and the Civil War Initiation and Termination dataset. Using the first dataset, she explores why states commence wars in certain ways, how they conduct them, and how they end them. She uses the second to show the behavior of secessionist groups. The author brings these data to life using vivid historical case studies, weaving in stories from such conflicts as the Falklands War and the Texas independence movement against Mexico.

The book convincingly shows that the effort to regulate and govern the conduct of war has bred counteracting reactions by warring parties: in part to avoid legal consequences on the part of many states, and in part to further political aims on the part of secessionists. The unexpected consequences that Fazal points to are consistent with many findings in the social and behavioral sciences that demonstrate that the users of law are creative and adaptive to legal changes.

What is the solution to this problem of “legal dodging” or the instrumental and political use of international law in the face of the regulation of armed conflict? Fazal acutely observes the growing divide between “law-makers” and “law-takers” as the source of the problem. Going all the way back to the Hague Convention, humanitarian laws were made by military personnel. In the post–World War II era, however, laws are primarily made by lawyers and NGO representatives. In light of this observation, Fazal proposes bridging the gap between law-makers and law-takers. By listening to the people in state military, or by opening up the lawmaking space to engage rebel groups, the law will have a better chance of producing the intended effects. Airtight and foolproof regulation will not be possible, but a more optimal design may be. Taking into account the perspectives of law-takers would help advance the law-makers’ primary goal of reducing suffering in conflict zones. Of course, challenges abound. For civil wars especially, this bridging-the-gap idea is not always feasible because of states’ inherent discomfort at having rebel groups sit at the international lawmaking table.

Fazal’s persuasive analysis brings up additional pressing questions. First, what can be the net evaluation of the regulation of war? The book emphasizes certain unintended consequences that could be interpreted as an overall negative for conflict resolution. But what about the law’s intended consequences? How much does it achieve in terms of regulating the conduct of war in interstate and intrastate wars? If the benefits of intended consequences (such as more careful targeting to avoid civilians) exceed the negative effects of unintended consequences, is it not better to keep the current legal system as it is? Also, on the question of improving the law, if the answer is to incorporate the opinions of law users, by what political or lawmaking processes should this happen? Would it not be better to leave the law to be developed in a more decentralized fashion? Finally, in an era where states increasingly privilege security benefits over humanitarian values, would not the evasion of law be inevitable?

Wars of Law marks an important departure from previous understandings of how warring parties follow or do not follow rules by highlighting the growing divide between law-makers and law-takers. Though Fazal takes a first step toward addressing the problem, this challenge will only increase as we continue to face new ways of waging wars, such as drones and autonomous weapons. Nevertheless, this book stands as a good guideline for our future course of action.

—Hyeran Jo

Hyeran Jo is associate professor of political science at Texas A&M University, College Station. She studies international institutions and is the author of Compliant Rebels: Rebel Groups and International Law in World Politics (2015).

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Category: Book Review, International Law and Human Rights, Issue 33.1, The Ethics of War and Peace

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