Conventional wars have a beginning and an end. They have recognizable adversaries, who fight with known weapons in recognizable military uniforms. But every day brings another grim reminder that wars are no longer conventional, nor are the actors. Scholars have been trying to understand the phenomenon of ongoing domestic and cross-border violence triggered by a wide range of popular grievances. They have tried to classify the events in a somewhat systematic way. However, the unruly profusion of violence and variety in its manifestations seem to defy categorization. Christine Chinkin, emerita professor of international law and director of the Centre on Women, Peace and Security at the London School of Economics, and Mary Kaldor, professor of global governance and director of the Conflict and Civil Society Research Unit in the London School of Economics Department of International Development, have described theories of war and peace and the difficulties of fitting them into the procrustean bed of conventional—or even more recently developed—international law. They make it clear that the theoretical effort thus far has been inadequate. They have attempted an enormous task—that of providing a compendium of existing international law that attempts to regulate these new forms of violence. It is unsurprising that some of the most controversial legal and philosophical issues have not been dealt with deeply. But this sophisticated compilation does offer a strong basis for deeper questioning and analysis.
Chinkin and Kaldor set the stage for their discussion with vivid descriptions of the fluid networks of non-state and even some state actors who perpetrate the violence. These include elements of current regular or prior armed services members, particularly disgruntled veterans; paramilitaries; militias; gangs of various compositions; and undefined terrorists. While one might expect the rise of such rogue forces to take root primarily in ungoverned territories or poorly governed states, they even occur within the borders of well-functioning governments, and across their borders to friendly or unfriendly states. These networks are found within a broad spectrum of government types: within developing democracies and also within established ones. They are found in—and even encouraged by—autocracies.
Since 9/11, the world has witnessed explosive attacks with multiple deaths, such as, inter alia, the Toulouse attack. But attacks even range down in severity to the amusing “Pussy Riot” interruptions that jailed its scantily clad perpetrators.Footnote 1 Time and time again, governments react without addressing the causes, without understanding the conditions that lead to violence, thereby condemning themselves to repeat performances.
The authors describe graphically the types of violence now prevalent—including multiple sexual assaults and deliberate attacks on civilians, particularly those in large pleasure-filled congregations, or houses of worships on holy days. These have become the hallmarks of what Kaldor had labeled “new wars.” The authors make a strong effort to discuss and understand the role that gender violence plays in these irregular wars. By so doing, they perhaps assure that subsequent analyses cannot ignore those issues, now so sharply highlighted by the authors.
The incentives for triggering a violent uprising and the many different techniques for disruption and violence are inadequately understood, and they cannot be addressed generally by existing mechanisms of control. For example, corruption has led to uprisings and violence, as Sarah Chayes develops in Thieves of State.Footnote 2 Acts of terror, when suffered within a state, can be, and have been, captured by domestic criminal law, which may serve the purpose to some extent. In many domestic jurisdictions, attempts have been made to deal with terrorism, including cybercrime. For example, Ramzi Yousef, one of the 1993 World Trade Center bombers, was caught, tried, and convicted under U.S. law and is serving a sentence in a federal prison.
However, even improved domestic criminal law is hardly adequate for the growing violence the world has witnessed, even within the very borders of a state. Models of state criminal law do exist, and in many states, some form of legislation is on the books. But even in Western democracies, legislation is only the first step. An entire justice system is required to enforce legislation—from the ability to locate and arrest perpetrators, to their prosecution, including offering effective and timely hearings, conviction or acquittal in a timely and fair court system, and effective corrective institutions. Comprehensive systems that are both effective and rights-protecting are not found in many jurisdictions.
Beyond state borders, the system is even sketchier. Persistent acts of violence remain generally unrestrained by international law. The United Nations has made an effort in its work with the United Nations Office on Drugs and Crime (UNODC) to assist states with improving their efforts, but funding has not been adequate. Effective and widespread training and technical assistance requires a veritable army of trained personnel with time to assist, as well as willing recipients. The UN effort points in a good direction, but so much more is required to provide effective controls.
It is not difficult to understand how complex the negotiations would be to formulate even a simple international regime that would cover cross-border violence, leaving intact sovereign rights. Without a full understanding of nations’ fierce protection of their sovereignty, it is hard to appreciate the obstacles to an effective international agreement. An underlying discussion of the tenacity of sovereignty is not a part of this book—nor even fully addressed in its conclusion. But to assume that its readers understand its importance may be assuming too much. Somewhere early in the book, it might have been helpful to outline these constraints. The issue of sovereignty is the ghost at the feast. Even if this is not the book to fully examine the dilemma that sovereignty poses, not only in the UN Charter but in the reality of the current highly interconnected world, it would have made sense to examine attempts to strengthen international law in light of sovereign tenacity. For example, what were the hopes lodged in the International Criminal Court? It is not hard to see why it has been such a disappointment—dealing only with one case at a time; each requiring lengthy preparation, hearings, and written decisions. Could such a court have had a different trajectory? Would more generous financing have made a difference, or is adjudication of violent movements the wrong approach entirely? It would have been useful to examine the Court's composition and its charter to see if a different role could be conceived for it, or an alternative adjudicative process in the settlement of the violence with which nations are bombarded.
The Law of Armed Conflict (known as LOAC) was inadequate even to deal with conventional wars, much less “new wars.” The authors understand deeply and clearly the legal issues and distortions involved in justifications for international interventions into “new wars” and their aftermath. They offer a clear statement and review of LOAC, and go further to criticize Liberal Peace theory, thought itself to be a criticism of existing legal restraints. The authors are perhaps justifiably critical in stating that while Liberal Peace theory, arguing that liberal democracies do not go to war with one another, does address “new wars,” it clothes them in “old war” garb. The criticism may be apt—that such efforts entrench positions because they rely on the warring factions’ leaders as principals, as stated above.
The authors criticize the “Responsibility to Protect” (R2P) as also state-centric. Both R2P and Liberal Peace theory, they argue, are more focused on the role of dominant powers than the people who need protection.Footnote 3 The authors argue that even though interventions may stop immediate violence, such interventions tend to enshrine the principal actors, and even entrench into power those responsible for identity politics.
They would recast war as a humanitarian catastrophe, where massive violations of human rights can only be addressed by human rights responses, scaled to the individual level. They urge more of a focus on the people harmed by ensuring local involvement and support of the people most affected. But who other than the then-current leadership of the warring parties would be in position to negotiate a ceasefire or broker an end to violence—one that might create a blueprint for a lasting peace and that might ultimately provide a full voice for its citizens?
What are the mechanisms that can revive or create institutions capable of an early transition from the chaos of war to a stable peace? How best might the voice of the affected citizens be made part of the transition from war to peace? It is not clear how that viewpoint could be made operational in the midst of hostilities.
International interventions, in the views of the authors, offer a legal veneer to both the intervention and its accomplishments. But they tend to leave the major underlying issues unresolved. And as might be expected, these unresolved issues will emerge and create a replay of the conflict until they are addressed.
The book describes well the uneasy and volatile situation that remains in the Balkans, for example. There is little in the history of the Balkan conflict to suggest deeper solutions that were readily available, and that would have come close to restoring a situation that resembled a less-troubled past. The authors do not indicate how the intervenors might have gone beyond helping to end hostilities at the time of the Dayton Accords in 1995. How could any international group have gotten the warring parties to address the issues of ethnic cleansing, and effected a reconciliation providing more than an uneasy peace? Is it ever realistic to expect a peace agreement to chart a quick path to reconciliation? Is it too pessimistic to contemplate that it might take more than a generation to restore any kind of cross-ethnic comfort?
One need only look at the Korean War almost three quarters of a century later to understand how slow the healing process can be. In the Korean War, was it not enough to secure agreement on territory and to provide safe ethnic corridors? Should peace agreements perhaps provide built-in reviews to make room for possible revisions? Would that be too dangerous? Or should further resolutions be the prerogatives of the post-war parties that have emerged?
Long term solutions, by definition, tend only to develop in the long term. Combatants in the “new wars” can be expected to require a long cooling-off period. Would it be too risky to establish a substantive treaty review process along with the more typical treaty compliance reviews? Such a review process might indicate milestones to generate closer relationships.
Popular expression, other than by internal uprisings, does require functioning institutions, or fora, where popular expression can take place—or at the least, request referenda. But any such institutional arrangements are likely to have been shattered by war, if they ever existed. If the leaders do not agree to establish such a voice, public opinion has no charted way to work out the details until the time when institutions are created or restored to provide a peaceful opportunity for popular vote. Having made the criticism, it would have been helpful for the authors to illuminate potential pathways. What are some models that have been developed to give voice to the people affected, both for constitutional and legislative change?
Perhaps international organizations should have been equipped to better supervise the terms for cessation of hostilities or actual peace agreements, with standards of inclusion. But that would have taken a political consensus that has never been realizable. Thus, as the authors make clear, the UN Security Council (UNSC) was and is not such an instrument.
The authors are not unique in their criticism of the UNSC. They not only lament its ineffectiveness, but also its inconsistencies when it does act. However, it should not be surprising that if great powers cannot reach lasting and innovative resolutions to conflict, it is unlikely that the UNSC with its unwieldy, divided P-5 would do any better. The recitation of UNSC failures is well known, as well as its initial structural misconception. But it has demonstrated occasional effectiveness, and an explanation of successes might illuminate possible pathways to reform that have not been chronicled. What is more interesting are the ways in which wars are ended, even with the failures of intervening nations.
The authors provide good brief reviews of current theories of compliance, further underscoring the political impracticalities of enforcement thinking, although the transition to this discussion is somewhat abrupt. Likewise, they initiate readers into the “elasticity and imprecision” of the legal concepts of distinction and necessity that characterize the concepts of the move to war (jus ad bellum) and explain the addition of proportionality for wartime acts (jus in bello).
They even offer a discussion of weapons and the efforts over time to control them. The discussion of relevant treaties that have been reached or negotiated covers a wide range of types of arms control—mostly short of fruition. That discussion could well have been in a separate book and only mentioned as a point of reference. It is hard to do justice to complex regimes such as the Chemical Weapons Convention without a frame of reference to examine treaty effectiveness more generally.Footnote 4 Thus, the discussion of other treaties pertaining to issues such as arms trade and even gender violence are not placed within such a critical framework. In fact, the necessarily cursory discussion of a few treaties seems a diversion from the analysis of the laws governing war and post-war situations. Moreover, it would have been more in keeping with the issues of the book to dedicate space to a deeper discussion of occupation issues, peacemaking and peacebuilding, including the “peace v. justice” debatesFootnote 5 on post-conflict treatment of atrocities and putative war crimes.
The authors’ own theories and approaches do not get in the way of their critiques. They develop their ideas of the second generation of human security at the end of the volume. Their approach is based upon the primacy of human rights that includes the broadest possible definition of economic, social, and political rights of individuals. They attempt to marry uncodified development approaches, with the somewhat sketchy outline of jus post bellum. “International intervention must be about assisting local people on their terms with respect to their priorities, not imposing geo-political or counter-terror strategies” (p. 517).
But they do go beyond many earlier critics who ask for local “buy in” or control of the post bellum processes. They conclude that the next generation of human security requires both top-down and bottom-up approaches—work that is undertaken both by insiders—local populations and leaders inside; and outsiders—the intervenors whose attempts to impose their values may be resisted. Blurring the boundary between inside the state and outside may cause concern to those troubled by the erosion of sovereignty. But to readers who care both about the individual and the sanctity of the state, this book provides an approach that is not only scholarly, preserving existing doctrine, but also practical, acknowledging the tensions that will continue to exist. While the authors are sufficiently modest to not offer solutions, they point a way to next generation thinking about war and its aftermath.
