首页    期刊浏览 2022年05月28日 星期六
登录注册

文章基本信息

  • 标题:The demise of the nation-state, the dawn of new paradigm warfare, and a future for the profession of arms
  • 作者:Jeffrey K. Walker
  • 期刊名称:Air Force Law Review
  • 印刷版ISSN:0094-8381
  • 电子版ISSN:1554-981X
  • 出版年度:2001
  • 卷号:Spring 2001
  • 出版社:U.S. Air Force. Judge Advocate General School

The demise of the nation-state, the dawn of new paradigm warfare, and a future for the profession of arms

Jeffrey K. Walker

LIEUTENANT COLONEL JEFFREY K. WALKER *

Let me begin by expressing my sincerest appreciation to my many distinguished colleagues within the Air Force international and operations law community and to the Commandant and faculty of the Judge Advocate General's School for bestowing this honor upon me. To be given an award bearing the name of a distinguished gentleman, scholar, and jurist like Tom Keenan is truly humbling. He was a man of great humor and enormous intellect--noted equally for his rapier pen and his razor wit. What little contribution I may have made to the discipline is but a drop in the ocean compared to Mr. Keenan's life's work. With his passing just a few years ago, we lost one of the finest members of our profession.

On a grander scale, today we are witnessing the inevitable passing of that "Greatest Generation," the generation that rescued the world from the brink of darkness in the Second World War, then carried the burden of securing democracy around the world for those of us who follow. It is with great sadness that I have buried nearly all my personal heroes from that generation within the last few years: my father, who fought with MacArthur in the retaking of the Philippines; my Uncle Pat, who flew Heilcats from the decks of carriers in Admiral Nimitz's Pacific Fleet-and who was the main reason I became an Air Force aviator; and most recently, my father-in-law, who shipped out in January 1943 as a young Marine F-4U mechanic with Pappy Boyenton's fabled Black Sheep and ended his service three years and several islands--including Guadalcanal--later in China. When I contemplate the enormity of what these many heroes accomplished, I am reminded of something written by a 12th century medieval jurist who, after years of w orking with the recently rediscovered law texts of Justinian, cried out in equal measures of admiration and despair: "We are but midgets standing on the shoulders of giants!" I can think of no more appropriate professional epitaph for Thomas P. Keenan, one of the true giants of our discipline.

I. INTRODUCTION

Today I would like to discuss some Big Ideas--but Big Ideas that are of enormous practical importance to international lawyers in particular and military judge advocates in general. The two Big Ideas that I would like to examine with you today are--and I will surely not be accused of understatement--the death of the sovereign state and the end of armed conflict as we have known it. After looking at these Big Ideas, I would like to say something about what these mean to us as soldiers, officers, and jurists. With that admittedly ambitious mandate, let me begin with the death of sovereignty.

II. POST-WESTPHALIAN WORLD?

It has become somewhat trendy within international law and political science circles over the last few years to speak of the post-modern or "Post-Westphalian" international order. (3) The argument usually runs something like this. The international system has, since the Peace of Westphalia in 1648, contained only one type of relevant actor--the sovereign state run by a government in exclusive charge of a geographically defined territory and people. This resulted from the horrible depravations wrought by the religion-charged Thirty Years' War--that final and tragic denouement of the Reformation. Although it took thirty bloody years to figure out, the European powers came to the realization that trying to impose one's own ideas of what was spiritually correct--like Lutheranism or Calvinism or Catholicism--on someone else's subjects was a formula for producing unspeakable violence. The theory therefore ran for 350-odd years, based on the original 1555 Peace of Augsburg rule that the religion of the sovereign det ermined the religion of the state, that within their own borders, sovereigns could do as they pleased. Admittedly, this rule was as often honored in the breach as in the observance, but that is what we had as a basic international system for the better part of four centuries.

During the Cold War, since the Superpowers could not engage in direct confrontation--the risk of escalation to a nuclear exchange being viewed as too great--they settled instead for a somewhat perverse system of nose-counting. The idea was to see how many supposedly sovereign states you could get into your particular ideological camp--reminiscent of the 18th and 19th century era of colonial expansion when there was great concern among the European colonial powers to "paint the map red," if you were English, (4) or some other appropriately jingoistic color if you were French or German or Dutch (of course, the colonial powers did not generally view the supposedly primitive sovereignty of indigenous peoples as worthy of consideration). It was a similar Cold War race to accumulate client states--rather than outright colonies--that led to the many small but nasty Superpower surrogate conflicts like Korea, Vietnam (twice), Cuba, El Salvador, Nicaragua, Malaysia, Angola, and Afghanistan. From the American perspectiv e, these conflicts were viewed as a righteous crusade to halt the march of Communism--enforcing the containment theory and keeping the democratic dominoes from falling. From the Russian viewpoint, these otherwise peripheral skirmishes were seen as propagating the socialist revolution or keeping solidarity with the international proletariat or manifestations of some Marxist-Leninist dialectic. Of course, the more cynical real-politicians or neo-imperialist theoreticians would argue that the Cold War era was just about the aggrandizement of national power or a continuation in a nuclear age of the same Euro-American imperialism that characterized the 19th century. (5)

In contrast, the post-Westpahalian idea is that: 1) what a sovereign does to his own people isn't necessarily his own business--and other states may rightfully intervene under certain conditions; 2) non-state entities such as international organizations, regional alliances, and non-governmental organizations have a place at the international table; and 3) there are some universally applicable ideas that no one gets to reject, such as the inherent right of persons to fundamental human rights, the right of peoples to self-determination, and perhaps the right of everyone to democratic governance and environmental protection.

These post-Westphalian ideas are, as one might expect, not without vigorous detractors and dissenters. Smaller and less powerful states fear intervention by stronger states on the pretext of upholding post-Westphalian ideas. Asian and African states often see this as just another manifestation of the hegemony of Western notions of right and wrong--a kind of ideological imperialism. Islamic states have for some time disputed the true universality of some so-called fundamental human fights principals. (6)

Regardless of dissent and the ultimate contours of the post-Westphalian system, however, the old and exclusively state-centric system is in its final death throes.

A. The End of the Nation-State as The Exclusive Actor Within the International System

The old Westphalian days are over, and indeed have been, in practice if not theory, since the end of the Cold War. This brings me to a point that must be made early and often-the end of the credible threat of a nuclear exchange between Superpowers capable of annihilating each other--and probably the entire world in the process-is a watershed moment in modem history. It is often difficult to discern when one's own time is of great historical importance--every generation tends to overestimate their place in history, but when the very survival of the species hung in the balance for the first time in the history of mankind, all else seems pale in comparison. But those bad old days are gone--hopefully forever, and new and sometimes frightening possibilities have emerged. It is those possibilities upon which I would like to focus.

B. Increasing Global Economic Interdependence

It is simply incorrect-and getting less correct every day-to say that sovereign states are the only relevant actors within the international system. Today, there are many forces that pull mightily at the fabric of this time-worn monopoly of individual states. First and foremost among these forces is a rapidly broadening and deepening global economic interdependence. The paradigm example of a surrender of state sovereignty in the economic arena is, of course, the European Union. (7) It's somewhat ironic that the only real contemporary competitor to the economic might of the United States is an institution the US was instrumental in forming. It was as a precondition for the receipt of Marshall Plan aid that France and Germany formed the European Coal and Steel Community, the direct ancestor of the present day European Union. Today, the EU is moving almost inexorably toward deeper social and political union, with only a few self-selected and self-marginalized laggards like the United Kingdom and Denmark resistin g. Soon, even one of the most emotional and tangible symbols of state sovereignty--national currency and coinage, will either disappear or undergo a radical transformation within the Euro monetary area. Even the brass in your pocket will no longer identify you as a Frenchman or a Spaniard or a German.

It is somewhat astonishing that the hitherto distrusting and often violent states of Europe have come together in such tight economic and political union, such that it is hard to imagine Germany and France resorting to arms over Alsace or the Saarland, as they have periodically ever since Charlemagne's grandsons divided the Frankish empire. Why bother when there is no border, other than an anachronistic and largely nostalgic line on a map, separating them anyway? For those who came of age in a pre-World War world, such an eventuality not only seemed possible, it was downright inevitable.

But we should look beyond the EU. Do not underestimate the enormous influence on US, Canadian, and Mexican politics of the North American Free Trade Area. Although the southern expansion of NAFTA has not been without problems and resistance within the US, there seems little chance of undoing what has been done to date. Anyone familiar with the amazing cross-border activity between south Texas and the maquilladoras areas across the border would emphatically agree, I believe. The remarkable, albeit somewhat tentative, consensus reached at the Summit of the Americas just a few months ago in Canada--with only a half-hearted dissent from Venezuela (an OPEC member and major oil exporter), that a Free Trade Area of the Americas was an objective to be sought for the entire Western Hemisphere shows the dynamism of the movement to more open trade relationships closer to home. The last gasp of US opposition to hemispheric free trade--the ill-fated and slightly comedic candidacy of Ross Perot with his apocalyptic warning s of a giant economic sucking sound were the US to allow Mexico into NAFTA--has not found any serious traction in today's political environment.

Economic interdependence runs much deeper, however, than just these formal regional arrangements. Literally scores of international bodies have made significant and at least tacitly consensual inroads on individual state sovereignty: the WTO, (8) where trade disputes are authoritatively adjudicated and effectively enforced; the World Intellectual Property Organization, where international patent and trademark policy is set and enforced; meetings of the world's major central bankers, where interest rate and inflation targets are set; the G-8, (9) where much international economic policy is hammered out; the association of the world's stock markets, where international trading and settlement rules are determined; transnational anti-trust enforcement, that makes it increasingly impossible for state governments to coddle and protect national corporate darlings; the domination of world investment flows by a handful of multinational banking conglomerates, whose allegiance is to shareholders and bottom lines, not so vereigns; or development and marketing of drugs by just a few multinational pharmaceutical companies, with enormous impact on everything from the worldwide price of aspirin to the availability of anti-AIDS drugs in Africa. These are just a few examples of bodies or organizations or informal groupings that wield significant influence over large swaths of the world economy. (10) Each and every one represents a whittling away of traditional notions of state sovereignty. We have reached the antithesis of 18th century mercantilism, when states attempted to tightly control their economies in a conscious attempt to beggar one's neighbor, and have in the last few decades witnessed the apotheosis of international free market capitalism.

But on an even grander scale, economic interdependence has fundamentally changed the way macroeconomics work. It is no longer a turism that when the US sneezes, the rest of the world catches a cold. In fact, it is widespread global economic interdependence that has smoothed out some of the heretofore unavoidable pitfalls of the world economic cycle. For example, the enormous national debt run up during the Reagan and Bush years did not trigger sky-high interest rates domestically because there was a lot of foreign capital floating around at the time--mostly Japanese--willing to buy up piles of US government notes without jacking up the cost. The free-spending US consumer helped stave off a general collapse of the Asian economies in the late '90s after some notable economic disasters in Thailand and Indonesia. A reliable EU economy has helped lessen the impact of the dot-com meltdown in the US over the past year. Even the mighty New York Stock Exchange has shown itself highly sensitive to economic events overs eas--in reality having now become a world bourse discounting future risk for a world economy.

C. Free Movement of People, Information and Ideas has Erased Borders and Controls

Related to but separate from economic interdependence, the movement of people and ideas has also accelerated since the end of the Cold War. Borders of every state--with the exception of only the most autarkic countries like North Korea--have become remarkably permeable. Legal immigration is enormous within the US and most other developed countries. As just one example, recent census results revealed that my zip code in northern Virginia--22032--has seen the influx of nearly 1,000 new legal immigrant residents in just the last ten years. Due largely to immigration, Hispanic Americans are now the single largest minority group in the US, surpassing African Americans for the first time. Although this is not new in the United States, a country built by successive waves of immigration, the ease and rapidity of modern day immigration is remarkable.

Intercontinental travel has become commonplace, with airfares from Washington to Europe now often cheaper than flights to Los Angeles and without much difference in time. The Channel Tunnel has effectively ended the geographic, and the much more daunting psychic barrier of the English Channel between the Great Britain and the Continent. It is now routine practice for Londoners to spend the day shopping or touring in Paris, returning at night to their own beds. The adoption by most EU members of uniform entry requirements has lead to the elimination of border checks between, say, Germany and France or Italy and Austria. Traveling across much of Western Europe is now equivalent to driving from Ohio to Wisconsin. The result of all this is that somewhere around two million people cross an international boundary every day--the US alone hosts over 110 million visitors a year.

This frenetic and almost frictionless movement of people combines with another new development in the international system, the free and rapid movement of ideas and information, with the result that there just are not too many secrets any more. Every corner of the globe is subject to the 24-hour news cycle--today even in the most remote reaches of the world, one can find a hotel with CNN. The internet and the world wide web have, at least as far as information and ideas are concerned, completely eliminated borders as well as distance.

This revolution--and it is undeniably a revolutionary development--in the movement of people, information, and ideas has had, in my opinion, two significant effects. First, state governments, even those controlling the most closed or authoritarian societies, can no longer escape notice. Be it interethnic genocide in Rwanda or Bosnia, deliberate famine in Somalia, the desecration of ancient Buddhist carvings in Afghanistan, or government corruption in the Philippines, it makes it to the television screens and newspapers of a global audience near real-time. Some states have tried to resist--China, for example, persists in attempting to regulate access to the internet, but with remarkably poor results. An instructive example of the futility of fighting the tide of information technology was the Tiannamen Square debacle in 1988. In that long-ago, pre-internet day, dissent groups kept the world apprised of events in Beijing through the use of fax machines. So the first major impact on sovereignty is the plain fact that would-be bad actors can no longer do dirty deeds in the dark.

The second, and I think more important effect of this revolution in the movement of people, information, and ideas is that what we are now beginning to witness is the capability for the formation of instantaneous transnational communities of interest around almost any issue--big or small. It's simply no longer necessary to have a state sponsor for an interested group of people to effect changes within the international community. Anthony Lake, former national security advisor to President Clinton, described this phenomenon as "technology enabling local groups to forge vast alliances across borders, and a whole host of new actors challenging, confronting, and sometimes competing with governments on turf that was once their exclusive domain." (11)

A very good example of this can be seen in the way the Ottawa Convention banning anti-personnel landmines (APLs) came to fruition. In the early 1990's, there were not too many important states much interested in undertaking a ban on APLs. However, in the wake of several civil conflicts that left enormous numbers of APLs scattered willy-nilly over the countryside, and the inevitable number of deaths and maiming injuries to farmers, children, and other innocents, the world NGO (12) community took up the cause. Helped by some influential persons--the Princess of Wales for one, the movement gathered momentum. Through internet activities, transnational cooperation between NGOs, and skillful use of the media, an incredibly effective transnational community of interest sprang up to push for an APL ban. This movement co-opted several national governments through the very attractive political appeal of ending injuries to children and others from APLs. Canada was a prime example of a state government recruited into the effort.

The US government, and particularly the DoD and State Department, were caught somewhat unaware by the remarkable speed with which this effort gained inertia. The result was that the overwhelming majority of state governments, some dragged along quite reluctantly (like the British) by what their political leadership saw as irresistible public opinion, joined the Ottawa Convention. The US ultimately refused to join--thereby costing a significant amount of good will with our usual allies and causing difficulty in coalition operations today. Ironically, an American woman would win the Nobel Prize for her efforts in mobilizing the anti-APL transnational community of interest. Anthony Lake summed up the Ottawa campaign as, "The international campaign on landmines, coordinated through computer links from a house in Vermont, forced an issue on many governments that would have rather avoided it." (13)

D. Loss of Control Over the Physical State: Things Fall Apart?

So our beleaguered nation-state (as was the trendy term for countries when I studied political science in the late '70s) has essentially lost control over its economy and can no longer effectively control the movement of information and ideas through and within its borders.

Could it get any worse for our nation-state? Well, yes it could.

Quick on the heels of the end of the Cold War, the rapid growth in economic interdependence, and the revolutionary expansion in the movement of information came the resurgence of group identification below the state level. When physical or political or economic survival had been in question, people were more or less willing to sacrifice smaller group impulses for effective membership in a militarily and economically viable nation-state--it was just the price that had to be paid to keep a hostile neighbor or would-be hegemon from dominating significant parts of the world. In short, grudging acquiescence to domination by people kind of like us was preferred to subjugation to people very alien to us. This really began in response to Napoleon--Germany is a prime example of 'kind of' similar peoples--and continued more or less unabated until the end of the Cold War.

Once the survival threat of the Cold War was removed, the bottle was uncorked and the genie of national self-determination reappeared bigger and more intractable than ever. The rapid disintegration of the Soviet Union was perhaps the greatest example--although many of the peoples of the Union arguably did not even grudgingly acquiesce to Russian domination. The sad case of Yugoslavia is another example--a federation of peoples that, if history is any guide, would have been at each other's throats but for the fact they were wedged between Russian socialist and Western capitalist hegemonic powers. (14)

Interestingly, economic interdependence has actually hastened the centrifugal forces of self-determining nationalism-and in some very interesting places. Italy, from unification in the 19 century of a country patched together on vaguely linguistic and cultural grounds, has seen the rise of an influential northern separatist party, the Lega Nord, that has held the balance in government on one occasion and may well do so again. A powerful and-unlike the Basques in the north-non-violent Catalan separatist movement has sprung up in the area of northeast Spain centered on Barcelona. Most interestingly, the government of Tony Blair in the UK has delivered on an election promise to devolve powers from the center to regional assemblies in Wales, Scotland, and Northern Ireland. The success of these efforts in Scotland is manifested by the fact that the avowedly separatist Scottish National Party is now the official opposition in the Edinburgh Assembly. As a result, it is not an unreasonable possibility that we may see the end of the United Kingdom in our lifetimes.

One characteristic these European nationalist-separatist movements have in common is an appeal that runs something like this. "We're all in the EU now. Tiny Denmark and tinier Luxembourg are in the EU as well. Our would-be independent country has a population and economy equal to or greater than Demnark or Luxembourg, so why can't we go it alone within the EU, too?" Coupled with the fact that more and more of the traditional functions of the central state government are now performed in Brussels--labor and monetary policy, safety and health regulation, environmental and business standards--this idea of finding one's own way within the EU framework is attractive to many.

So the supposed sovereignty of our beleaguered nation-states continues to be undermined by increasing economic interdependence, the instantaneous and unimpedable flow of information and ideas, and the centrifugal forces of separatism. Of course, this is not to gainsay any future role for the state as we know it--just a greatly changed and vastly reduced role.

E. What Will Wars Look Like in a Post-Westphalian World?

So much for the issue of state sovereignty in the post-Westphalian world. What changes are underway concerning the military and the waging of war?

Operation DESERT STORM represented, at the same time, both the last great traditional war and the first future war. Although somewhat oxymoronic, DESERT STORM was both the end and the beginning of warfare as we know it. It was a classic war of the past with its grand climax of massed movements of armor and soldiers over a vast strategic chessboard of desert--and also because of the enormous amount of time, effort, and logistical support required to pull it off. At the same time, just as the American Civil War and the Franco Prussian War provided chilling previews of the industrial warfare of World War I, DESERT STORM provides a glimpse of what armed conflict will look like for the foreseeable future. It's fairly widely acknowledged that DESERT STORM was all but won by the air campaign, a war waged--at least after the first few nights--with near impunity by coalition air forces.

The 1995 DELIBERATE FORCE (Bosnia) and 1999 ALLIED FORCE (Kosovo) air campaigns in the Balkans were the natural extension of the lesson learned from DESERT STORM that air power could be the dominant maneuver force, and in the case of the Kosovo campaign, the only maneuver force. However, this should not give airmen cause for hubris--ALLIED FORCE also demonstrated many weaknesses in air-only warfare. Air forces, for example, cannot occupy land and have great difficulty flushing out land forces determined to hide. So the conflicts of the future, like the smaller peacekeeping missions of the past, will require more tailored military responses--not the armor-heavy and logistic-intense war we trained for throughout the last 50 years.

Why do I think we won't face big, heavy, traditional military operations in the foreseeable future? Mostly because I subscribe to the idea of the democratic peace--first put forward by Michael Doyle, but refined by other academics. The democratic peace theory holds that historically democracies don't start many wars and--of equal importance--democracies don't often fight each other. Although this theory can be oversold, it holds an essential nugget of truth. So if we are now at that moment, as Francis Fukyama has said, of an end to history (15)--meaning the universal victory and ascendancy of liberal democracy, there isn't much chance for big wars between democracies.

There are still not insignificant risks that this blissful state of affairs may go off the rails. The enormous wild card in the deck is most certainly China. The ultimate victory of democracy in China is, in my opinion, still more likely than not, but it is a shaky proposition. If we can keep anything nasty and violent from happening with China for another half-generation--until all the first-generation Maoists and octogenarian leadership dies off--there may be a good chance for democracy in China. Free market economics has already taken hold to the point that the most reactionary and thuggishly committed communist leader could not turn back the clock now. So let's remain hopeful, but keep our powder dry.

There are other possible stumbling blocks along the way--too many Arab states going over to an intolerant and--I specifically mean this next word, aberrant form of Islam, a sudden collapse of markets and hope in Russia, or perhaps anarchy in Indonesia. But barring any enormous upheavals, and it should be the US's business to work very hard to prevent any such upheavals, the conflicts of the near- to mid-term future should be ones with limited objectives, limited stakes, and commensurately limited means.

F. The Luxury of a Conscience

It seems likely that the Western powers, including the US--contrary to the campaign promises of the Bush administration--will continue to get involved in the limited conflicts that do pop up. The end of the Cold War, after all, has now given the West the luxury of a conscience. With the end of a bipolar system of closely aligned client states glued together by the threat of nuclear Armageddon, we now have the leisure to indulge our Enlightenment ideals of protecting universal human rights and securing individual dignity. Michael Ignatieff described the warmest part of the Cold War--the so-called 'detente era' of US-USSR relations--as an era of complicity, wherein "the West agreed to keep silent about human rights abuses in return for Soviet cooperation in the maintenance of geopolitical order. In effect, detente traded rights for order." (16) Not so today--there's no need to trade Russia much for order since they aren't much of a threat to anyone but themselves now.

So now we've finally got a chance to do what we first wanted in the idealistic flush of post-war Allied solidarity--stop evil around the world. Although many believe, as the Clinton Administration more or less did, that we should work to hold states together, intervention may be a good idea if "a state's behavior [has] become so repressive that it has lost the right to sovereignty over its component parts... " (17)

The problem with these somewhat ambiguous limited conflicts is that they don't square very well with the post-DESERT STORM military ethos of total victory. Let's not lose sight of the fact that DESERT STORM was not just the opening salvo of the supposed New World Order, it was also the final vindication of the last of our military leadership who were Vietnam veterans--the men who were young lieutenants and captains in Southeast Asia like Colin Powell and Chuck Horner. These men had intoned relentlessly during the Reagan years the mantra that no Commander-in-Chief should send the military anywhere unless he gave them the overwhelming force and carte blanche authority to win quick and win big. This was publicly expressed in what became known as the Powell Doctrine.

But the clear black-and-white, good-guy/bad-guy motif of DESERT STORM is not what we have faced in the many operations since then--nor what we are likely to face in the near future. Everyone was our enemy in Somalia; Haiti was a political quagmire; all sides in Bosnia were guilty to a greater or lesser extent of atrocities and duplicity; and even the lionized and heroically beleaguered Albanian resistance in Kosovo has now turned into NATO's number one headache in Macedonia. These are not the kinds of conflicts that lend themselves to the massive knockout blow envisioned by General Powell, his contemporaries, and his immediate successors. This may account for much of the frustration expressed by senior military leaders during the peace operations of the 1990s. It is, however, high time to shake off this unrealistic attitude born from the pathology of Vietnam. We better get used to limited, ambiguous, and untidy conflicts--we're stuck with these dirty little wars. We will also need to accept that there are dif ferent levels of national interest in these conflicts and that this will lead to varying levels of political and military commitment--it's simply not going to be the all-or-nothing conflict envisioned in the Powell Doctrine.

So that's one aspect of what I see as a fundamental change in the nature of warfare--smaller conflicts, lower stakes, more complicated military solutions.

G. Zero Casualty Warfare

The second tectonic change I see is the American--and to a lesser extent, European--obsession with the notion that wars shouldn't hurt anybody. Although DESERT STORM and the operations that came after have brought it into tight focus, the whole business of "zero-casualty warfare" had been brewing over the preceding 20 years. It was yet another part of the somewhat perverse legacy of Vietnam.

But the question remains, what is the basis of this assumption that the American political leadership--and by extension the American public--will not tolerate friendly casualties or, as has seemingly begun to become the case in the Balkan operations, even enemy casualties? The only attempt I have found to quantify this presumed effect was a study done for RAND in 1996 by Eric Larsen. (18) Oddly, this study, although somewhat flawed in its methodology, suggests that the US public reaction to friendly force casualties is, at least in the short term, just the opposite of what many seem to presume--support for a strong military response actually increases. What seems to be happening is a kind of casuistic downward spiral involving our political and military leadership--the political leadership, apparently based on false assumptions about the American and allied public, demands zero-casualty operations, and the military leadership perceives that the political support for military operations--admittedly tenuous in many peace operations--will be undermined unless they avoid casualties at all cost.

And this pervasive casualty aversion has made its way into both friendly and enemy operational doctrine. The presumed casualty aversion of the American political leadership and public is seen by Air Force planners and operators--tacitly or explicitly--as a vulnerable friendly center of gravity, and often our only really vulnerable one, that must be protected at all costs. Conversely, enemies have learned this and seek to exploit it at great cost. Sporadic press reports reveal, for example, that Saddam Hussein has offered large cash rewards to any surface-to-air missile crew that shoots down a US or British aircraft in either no-fly zone over Iraq. The Bosnian Serbs wanted desperately to shoot down and capture any NATO airmen--Scott O'Grady was fortunate--two French aviators were not. Slobodan Milosevic learned these lessons well--the Yugoslav forces during operation ALLIED FORCE understood that it was more important to have SA-6s--a potentially lethal surface-to-air missile system--than to use and lose them. It was the possibility of inflicting NATO casualties that was important and, in fact, contributed greatly to the high minimum altitudes generally flown by NATO aircraft and the concomitant loss of accuracy in bombing.

As a former aviator, I must confess to being somewhat conflicted over this issue. On the one hand, many old and dear friends are still flying--my old copilot, for example, now commands the B-2 squadron at Whiteman, so I appreciate the care our commanders take not to squander the lives of our aircrews. So I personally believe that a healthy interest in minimizing friendly casualties is a good thing. On the other hand, our current obsession with zero casualties leads to ludicrous results like a joint force commander stating in the first sentence of his commander's intent, "Force protection is my top priority," or a senior air commander telling the assembled officers of his several multinational flying squadrons, "There's not one thing here worth dying for." I have personally witnessed both. These statements immediately beg the questions in the minds of our very well educated troops, "Why isn't the mission our top priority? Why exactly are we here?"

So now we have two pieces of what I believe to be a radical change in the way we have done and will probably continue to do military operations: dirty little wars and zero-casualty operations.

H. The Enemy of My Enemy

The third big change I see--and this is certainly a big change from the rather paltry solo military interventions of the Reagan years--is that the US will not, and some cases cannot, go it alone. Coalition warfare is here to stay and we better get used to it and we better get better at it. Thus far, we have been blessed with a group of generally very patient allies who have tolerated a lot of goofiness and recalcitrance from the US. Granted, the US has become, as former Secretary of State Albright has said, "the indispensable ally," but we haven't always been the most agreeable of allies. Because we generally bring the preponderant amount of air and maritime forces to the fight, although not necessarily the largest ground forces, the US has often adopted an 'our way or the highway' approach to coalition warfare.

And do not be mistaken, although the US may be the last remaining superpower, we genuinely need coalition partners. When intervening in the kinds of limited and ambiguous missions we have confronted since the Gulf War, it is generally perceived that our political leadership and the American public are much more likely to support US participation if other states are perceived as doing their fair share as well.

To be sure, coalition warfare is not new--there were 10,000 French troops under General Rochambeau at Yorktown when Washington took the British surrender. But what we now see is not a preference for coalitions, but, except for the smallest operations, an actual need for them.

So now we have three big changes: dirty little wars, zero-casualty warfare, and coalitions.

I. New Technology, Old Methods

I have consciously left until last the great military technological changes underway--the so-called Revolution in Military Affairs--because it is surely the biggest of the Big Ideas in this area. I can only hope to cover a few aspects here.

Certainly the most ballyhooed of the new military-technological frontiers is in the area cyber warfare. This is an interesting but extremely complicated area of military operations, particularly from the legal viewpoint. Many within the military legal community think that computer network operations, international cyber law enforcement, and notions of use of force in cyber space easily fit by analogy into the existing law of war regime. I think otherwise. Just as the instantaneous transmission of ideas has done no small part to radically undermine the traditional internal sovereignty of nation-states, so will it undermine traditional international law notions that have been built up since the time of Grotius on a presumption that the only important actors are sovereign states in control of geographically defined borders. In cyber space, borders simply don't matter.

Let me give an example. Suppose there is a criminal enterprise engaged in fraud, with half the conspirators in Paris and the other half in Marseilles. They promulgate their enterprise via e-mail, with accounts on AOL. The electrons that constitute the stored records of this criminal enterprise just happen to rest in AOL's mainframe computers in Reston, Virginia. Obviously the overwhelming interest in the data represented by those electrons in Reston lies with the French authorities. The US really has no, or at best a marginal, interest in those electrons--which incidentally could be erased, moved, or copied a thousand times in milliseconds. What is wrong, then, with the French authorities, relying on an authorization from a French magistrate, seizing the data encoded in those electrons in Reston? The obvious uneasiness of many with this idea results, I would guess, from two things. First, it involves the French, whose government has been a alleged to be a notorious supporter of industrial espionage for decade s. But second, many are undoubtedly aghast at the idea of the French gendarmerie electronically crossing our border and seizing 'our' data. I say you are thinking neither broadly nor thoroughly enough--borders just don't matter.

Although this example is drawn from an international criminal hypothetical, the same basic issue lies at the heart of our interpretive angst in the area of international armed conflict in cyberspace. Because the entire law of war regime has been built upon a Westphalian foundation, the transformative properties of cyber warfare are just as breathtaking. We are left pondering some fundamental questions--what constitutes force? What is a hostile act? When is self-defense justified in response to a cyber attack? Is the use of traditional means of force ever justified in response to a cyber attack? These are not easy questions and the international legal regime is lagging far behind the problems presented by the increasingly sophisticated technological possibilities in this area.

As a theater of warfare, the US may actually be at something of a disadvantage in cyberspace. First, our adversaries do not generally rely as heavily on computer networks and systems as we do. As a result, they are generally much less vulnerable to the effects of cyber attack than the more technologically advanced US. Luckily, potential and actual adversaries have not shown a lot of capability in this area, but that will surely change over time.

In the military context, new computer, telecommunications, and space technology has allowed us to strike out boldly in new directions, with air forces at the forefront. Very high fidelity satellites and unmanned aerial vehicles have simply replaced the old air-breathing manned tactical reconnaissance aircraft. The few that are left--none in the Air Force--are not long for this world. Now, with the advent of the GLOBAL HAWK ultra-long range unmanned reconnaissance aircraft system, even strategic reconnaissance is going the same way--one recently landed after a non-stop flight from Edwards to Australia.

Navigators, I say with some personal regret, are dinosaurs awaiting the next Ice Age. They have been all but replaced by global position satellites and inertial navigation systems of incredible accuracy and reliability. Tactical weather forecasting has been revolutionized by space technology as well. Indeed, nearly the entire realm of Information-in-Warfare is now largely remote and stand off.

More momentously, US forces are now actively developing unmanned offensive tactical systems. Recently, as reported in the media and closely followed by our allies and potential foes alike, the US fired an air-to-ground missile from an unmanned PREDATOR aircraft. This, have no doubt, has given the heretofore-unassailable fighter pilot community some pause for thought.

J. The New Mercenaries?

In a more subtle manner, our dependence on highly sophisticated and highly specialized systems, coupled with economic factors and troop recruiting and retention difficulties, has led inexorably to a much heavier dependence on civilian--in particular civilian contractor--support for military forces. This civilianization of the military brings with it some serious and truly fundamental problems I will discuss in a few moments. Suffice it to say that we will almost certainly continue to turn over more and more functions traditionally performed by uniformed military personnel to civilian employees and civilian contractor personnel.

Oddly, it is our very technological sophistication and reliance on state-of-the-art systems--coupled with our presumed casualty aversion, that makes the US and its allies vulnerable to what have been rather unfortunately termed 'asymmetric' means of warfare. Precision, all-weather, day/night bombing capability presumes, for example, that the enemy has definable and discrete targets or target systems that can be attacked from the air and, more importantly, that if attacked will have a significant impact on his ability to carry on with whatever bad acts he may be intent upon doing. This was the problem with bombing the Ho Chi Minh Trail in Vietnam. The Ho Chi Minh Trail existed everywhere and nowhere--it was wherever the light vehicles or bicycles or human porters decided it should be at any given time. Bombing one piece of a primitive dirt road was not much of a hindrance to Viet Cong resupply. Imagine if you will that US and allied forces were given the same tasks in Rwanda as they were given in Serbia and Ko sovo. Does anyone really imagine an air-only campaign, no matter how sophisticated, could have seriously stopped the kind of brutal, handmade genocide that was going on there? When this is coupled with an adversary's willingness to engage in surrogate terrorist or suicide attacks against US forces or installations or even the US mainland, that is asymmetric warfare at its worst.

So these are the four major factors that have contributed to fundamentally changing the way warfare will be waged: limited and ambiguous conflicts, zero-casualty warfare, the necessity of coalitions, and the transforming effects of new military technologies. The looming question of all this interesting analysis is, what does it mean for the military in general and international lawyer judge advocates in particular?

K. The Future of International Law and the Profession of Arms

At the same time that we are engaging in limited and ambiguous conflicts, the astounding disparity in technical sophistication, accuracy, and destructive force between US and its allied forces over those of Yugoslavia, or the Bosnian warring factions, or almost all other potential adversaries has meant that we have been able to operate with something approaching complete impunity. The only serious constraints we have faced in the Balkans and elsewhere have been self-imposed political ones--like the zero casualty fixation I have already discussed. As a former aviator myself, it would be disingenuous of me to feign resentment of this--the purpose of any well-trained military force is, after all, to out shoot and out fly all comers. But Kosovo brought the enormity of this lack of reciprocal risk to our forces into crystalline focus. Why, you may ask, as an officer, aviator, or lawyer, should this disturb me?

Although there was, and certainly is, a strong moral element, the primary motivation for nations to agree to limit the means and methods of warfare, since at least the first St Petersburg conference 130 years ago, has been enlightened self-interest. We agree to treat prisoners well or forego certain horrible types of weapons because we expect our potential enemies across the table will do the same. We both win, Of course, implicit in this reciprocal self-interest was the fact that the nations around the table could each hold the other's forces at more or less equivalent risk. A poison gas protocol does not do you much good if you are the only one that can deploy gas on the battlefield. With the our new-found ability to attack with impunity, the fundamental basis of reciprocal self-interest that underlies the international humanitarian law regime is essentially eliminated.

This is not to say that US forces acted in Kosovo or will act in the future with callous and deliberate disregard for international humanitarian law. American forces and commanders at least aspire to virtuousness and the high moral ground. I can assure you that every commander with whom I have personally worked wants to do the legal and morally correct thing. One of our most cherished friendly centers of gravity, as already mentioned, has been taking and defending the high moral ground. But the removal of all tangible constraints--and this also includes possible asymmetric means of warfare--is sobering. As Lord Acton famously reminded us, absolute power and the virtuous wielding of that power do not necessarily travel together.

What we are then left with as a mechanism for enforcing the norms of international humanitarian law is simple moral suasion. If all we have are declaratory moral norms, in the heat of a military campaign these might often weigh lightly in the balance against military necessity or even simple military efficiency.

This is exacerbated by the presumed American casualty aversion. Often, increasing accuracy in order to absolutely minimize civilian collateral injury means flying at lower altitudes and marginally increasing risk to aircrews. If however we can deliver weapons from an altitude that is marginally less accurate (and thereby marginally more dangerous to civilians) but reduce to near zero the risk to friendly aircrews, the temptation is often irresistible. Again, as a former flyer, I get a certain comfort from this--while at the same time being somewhat discomfited as a lawyer.

The second additional factor that may erode compliance with the law of war is that with little or no opposing armed threat, there is no marginal cost to our military forces or civilian population for noncompliance. Again, the only real check on our freedom of action is the moral weight of basic humanity. This is a thin reed, made even thinner when dealing with force delivered from a distance because, quoting Schwarzenberger, "The increasingly impersonal character of mechanized warfare tends to reduce to the vanishing point inhibitions of combatants against the use of weapons...." (19) Killing a bright spot on a radar scope is much different than shooting a visible human being with an M-16, for example.

Michael Walzer in his book Just and Unjust Wars foresaw this problem several years before Kosovo--in the aftermath of the Gulf War. Walzer points out, "When the world divides radically into those who bomb and those who are bombed, it becomes morally problematic, even if the bombing in this or that instance is justifiable." (20) In the context of the Kosovo air campaign, many have asked--and justifiably so--why NATO viewed the thought of losing a single pilot as so repugnant, but did not seem as troubled over unintentionally killing Serbian civilians. Just as the Balkans were not worth the bones of a single Pomeranian grenadier to Bismarck, are they not worth the life of a single NATO pilot?

So part of my concern with our seemingly enviable ability to act with near-perfect impunity in Bosnia and Kosovo rests on what I perceive to be a dilution of the already tenuous--in the best of times--force of the law of war when faced with the military exigencies of real-world operations. May we not find ourselves attacking targets of diminished military importance, and concomitantly increased civilian importance, merely because we easily can? Certainly many have suggested this may have been the case with some targets, particularly economic targets, in Serbia proper. One must pause to consider whether, given a significant threat to our aircraft, NATO would have chosen to strike Yugoslavia's cigarette production capacity or so-called 'crony targets'? Might impunity not breed an attitude, even if only subconsciously, that we can attack a target that has any military value, rather than a military value that clearly outweighs potential civilian collateral damage? The hopelessly subjective weighing of proportiona lity (21) required of commanders by the law of war only makes it that much easier to settle on these types of targets.

Something else may be sparked by this environment of impunity. Not only did NATO enjoy near complete impunity in the range of its targeting choices, but its forces--particularly US forces--also enjoyed near complete freedom in choosing what types of weapons to deliver against targets. As many commentators have pointed out, a humanitarian intervention probably carries with it a requirement to tighten our concern with collateral injury to civilians. Although NATO forces used many precision-guided munitions (PGMs) in Bosnia and Kosovo--more as a percentage of total weapons dropped in Kosovo than in any previous air campaign--its forces also dropped some non-precision weapons. NATO is, after all, quickly dividing into a military community of 'have-PGMs' and 'have-not PGMs.' Some of these non-precision weapons, in particular cluster munitions, have garnered much attention from the NGO community since the end of the Bosnian and Kosovo air campaigns. Although cluster munitions undeniably are an effective and appropr iate weapon of choice in specific circumstances--against isolated airfields for example--the avowed humanitarian nature of these interventions and the near complete impunity enjoined by NATO forces contributed to a sense that the use of these comparatively sloppy munitions was unjustified. Subsequent injuries to civilians, particularly children, from unexploded subrnunitions has encouraged calls from NGOs to significantly restrict or ban this class of aerial munitions. Much the same reaction resulted from the use by US forces of depleted uranium munitions against Serbian armored vehicles, with the UN Environmental Programme now engaged in studying the longterm health effects of residue left by this class of munitions.

If NATO and US impunity has diminished the authority of international humanitarian law, what other than moral suasion, is left to ensure compliance? First, like less benevolent persons and entities around the world, NATO too will be subject to the microscopic scrutiny of 24/7 international media coverage. Instantaneous global communications--the web in particular--have proven to be the key enabler for the nearly instantaneous formation of transnational communities of interest, both within governments and without. As discussed above, the successful NGO-led transnational community of interest that grew rapidly around the Ottawa treaty banning anti-personnel landmines is a paradigmatic example of what powerful democracies will routinely face in the future as a check on their freedom of action in particular policy areas--undoubtedly including the use of force. International tribunals may play an important role in ensuring scrupulousness by forces enjoying impunity for their actions. Although the US has shown litt le present interest in joining the International Criminal Court (ICC), there is already an international tribunal with jurisdiction over Kosovo, Serbia, and Rwanda. Indeed, the ICTY (22) has investigated allegations regarding NATO's targeting methods and philosophy and specific targeting information on some selected targets from the Kosovo air campaign. NATO was deservedly exonerated of all allegations by the ICTY Prosecutor--the intense scrutiny given every target for compliance with the law of war during Kosovo was without precedent in my experience. Indeed, arguments questioning specific targeting decisions focus entirely on two irreconcilable matters: human or mechanical errors-which will always happen in the fog of war, and subjective determinations of proportionality. A court is not a good place to adjudicate either of these issues post facto.

Beyond these, albeit significant concerns about the effect of impunity on the efficacy of international humanitarian law, I am deeply troubled by its slow corrosive effect on military ethics. This requires some explanation. As the great British military historian John Keegan has argued (23), ever since the advent of means and methods of warfare that allow the application of force at a distance beyond arms length--basically gunpowder--the mark of a great and valorous military officer has ceased being the ability to inflict injury on the enemy with a strong right arm. Rather, with distant means of killing, the mark of the courageous officer has been an indifference to personal safety, a scorn for injury or death. This reached its most ludicrous extreme in the First World War, when the young lieutenants fresh from Oxford or Cambridge went over the top with nothing but an umbrella or riding crop or soccer ball. However, this is a manifestation of the single most fundamental characteristic of the profession of arm s--the willingness to engage in self-sacrifice up to and including death. We in the military often say, "It's not about the money." Certainly, military pilots--and military lawyers, could often do much better financially with much less effort and risk in civilian employment. But the military profession has traditionally, and still does fancy itself to be a unique calling.

Back now to my uneasiness with impunity. If we continually engage in conflict marked by our vast technological superiority and our leadership's almost fanatical aversion to friendly casualties, what will it mean for the culture of self-sacrifice, for the ultimate defining characteristic of the profession of arms? Michael Ignatieff, in a New Yorker article soon after the end of the Kosovo air campaign in 1999, asserted, "It was a virtual war, fought in video teleconference rooms, using target folders flashed on screens ... [it] never reached deep into the psyche of a people ... [did] not demand blood and sacrifice." Just as Kosovo may produce great change in international governance and international humanitarian law, so it may prove a watershed in our understanding of military ethics.

But why should we care? Because some day-inevitably--you'll need us. What happens when all the risk is gone? Two things, in my opinion. First, we will eventually turn our military forces into a corps of technicians, not soldiers. This has actually been occurring at an alarming rate since the end of the Cold War. In our rush to claim a peace dividend by a cost conscious Congress, many of the direct supporting tasks for military operations traditionally performed by uniformed military personnel have been contracted out to civilian companies. Some of these contracted out tasks come perilously close to the actual use of military force--loading sophisticated munitions or maintaining stealthy combat aircraft for example. What do we do when this new and benign kind of mercenary decides the risk of staying near the battle is no longer worth the money--perhaps when threatened by biological or chemical attack?

The second, and potentially much greater threat from zero-risk warfare is that our political leadership will get used to using military force and will begin to see the resort to violence as a first rather than a last, resort.

(1.) The author presented an abridged version of this paper as the Thomas P. Keenan Memorial Lecture, 8 May 2001, at the Air Force Judge Advocate General School as part of the School's Operational Law Course. The Award recognizes the Air Force judge advocate or civilian attorney who, during the prior year, made the most notable contribution to the development of international law or military operations law.

(2.) The last few parts of this paper concerning military ethics in a US-dominated post-Westphalian world are based upon a presentation given by the author at the annual meeting of the American Society of International Law, as part of a panel on humanitarian intervention in the Balkans chaired by Professor Linda Malone, Marshall-Whythe Law School, College of William & Mary.

(3.) For some in-depth discussion of this idea of a post-Westphalian world order, see ANDREW LINKLATER, THE TRANSFORMATION OF POLITICAL COMMUNITY : ETHICAL FOUNDATIONS OF THE POST-WESTPHALIAN ERA (1999) and RICHARD FALK, LAW IN AN EMERGING GLOBAL VILLAGE: A POST-WESTPHALIAN PERSPECTIVE (1998).

(4.) For an excellent overview of British imperialism, see BERNARD PORTER, THE LION'S SHARE: A SHORT HISTORY OF BRITISH IMPERIALISM, 1850-1995 (3d ed. 1996).

(5.) For an interesting (and African) perspective on post-colonial Western imperialism, see WALTER RODNEY, HOW EUROPE UNDERDEVELOPED AFRICA (rev ed. 1981).

(6.) For an overview of the Arab perspective on international human rights, see KEVIN DWYER, ARAB VOICES: THE HUMAN RIGHTS DEBATE IN THE MIDDLE EAST (1991).

(7.) For an excellent overview of the constitutional aspects of European integration by a noted legal scholar, see JOSEPH WEILER, THE CONSTITUTION OF EUROPE: ESSAYS ON THE ENDS AND MEANS OF EUROPEAN INTEGRATION (1999).

(8.) World Trade Organization.

(9.) A group formed by the major industrial democracies that meets to deal with the major economic and political issues facing their domestic societies and the international community as a whole. The group consists of France, the United States, Britain, Germany, Japan, Italy, Canada, and since 1998, Russia. G-8 Information Centre, University of Toronto at http://www.g7.utoronto.ca/g7/what_is_g7.html.

(10.) For a remarkable work on the issue of sub-state actors, transnational activities, and international relations, see, ROBERT KEOHANE & JOSEPH NYE, POWER AND INTERDEPENDENCE (2000).

(11.) ANTHONY LAKE, SIX NIGHTMARES: REAL THREATS IN A DANGEROUS WORLD AND How AMERICA CAN MEET THEM 281-82 (2000).

(12.) Non-governmental organizations.

(13.) LAKE supra note 11. Some do not view Ottawa as a triumph of international civil society and grass roots democratic action, however. For an interesting counter-argument, see Kenneth Anderson, The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society, 11 European J. Int'l L. 91, 120 (2000).

(14.) For a somewhat mote hopeful counterpoint to this pessimistic view of the Balkan peoples, see JULIE MERTUS, Kosovo: How MYTHS AND TRUTHS MADE A WAR (1999).

(15.) FRANCIS FUKYAMA, THE END OF HISTORY AND THE LAST MAN (1992). This book was a full-length exposition on Fukyama's short and highly controversial 1989 article published in National Interest. Fukyama subsequently produced a blueprint for his vision of a 'post-historical' world in TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY (1996).

(16.) HUMAN RIGHTS IN POLITICAL TRANSITION 317 (Carla Hesse and Robert Pose eds., 1999).

(17.) Lake, supra note 11, at 172.

(18.) LARSON, ERIC V., CASUALTY AND CONSENSUS: THE HISTORICAL ROLE OF CASUALTIES IN DOMESTIC SUPPORT FOR U.S. MILITARY OPERATIONS (1996).

(19.) GEORG SCHARZENBERGER, INTERNATIONAL LAW 135 (1968).

(20.) MICHAEL WALTZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS xxi (2d ed., 1992).

(21.) For a somewhat authoritative and well-written discussion of the problem of subjectivity in making a proportionality determination, see Office of the Prosecutor of International Criminal Tribunal for the Former Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, paragraphs 48-52 (2000).

(22.) International Criminal Tribunal for the Former Yugoslavia.

(23.) See the introduction to John Keegan, The Face of Battle (reprint ed., 1995).

* Lt Col Walker (B.A. Tulane, MS.Sc. Syracuse, J.D. Georgetown, LL.M Harvard) is chief of operations law at the International and Operations Law Division, Headquarters Air Force. He is a former B-52 navigator and has served as a legal advisor in operations in the Balkans, including DENY FLIGHT and JOINT ENDEAVOR. He is a member of the Illinois State Bar.

COPYRIGHT 2001 U.S. Air Force, Academy Department of Law
COPYRIGHT 2004 Gale Group

联系我们|关于我们|网站声明
国家哲学社会科学文献中心版权所有