2. The state of the art on an art of the law

The Afghanistan and Iraq war wars have been the new millennium's most prominent occasions so far for a debate in which an array of doctrinal positions have used ‘the legal tools for defending and denouncing military action’ in a common legal jargon that ‘has itself become a political vocabulary for assessing the legitimacy of military operations’ (p. 39). The current expert dissension on jus ad bellum among background international legal elites, as opposed to the ‘expert consensus’ (p. 17), that would – in transposing Kennedy's ‘inter and intra-elite’ (p. 25) sociological perspective anchored on a common vernacular of the political context for war – determine the share of influence pertaining to the invisible college in this domain, could be contemporarily embodied in three broadly generic doctrinal postures. A doctrinal tag will be attached to each of the current positions that, within the general framework of the law of force, concerns itself with the laws of war or jus ad bellum, as traditionally distinguished from the laws in war – jus in bello or law of armed conflict.

The revisionist labelling in this domain would today correspond to a doctrinal trend first captured as ‘hegemonic international law’Footnote ¹⁰ and subsequently examined at length by Alejandro Lorite, in terms of the ‘American nationalist school of international law’.Footnote ¹¹ Identified with the post-9/11 official US government stance towards the legality of warfare, the doctrinal work of John C. Yoo stands as one of the paramount expositions of this position. This author is technically skilled in both ‘the inner and outer realm’,Footnote ¹² with a special stress on his ‘inner realm’-oriented legal endeavours to aggrandise the US president's powers vis-à-vis formally restraining constitutional and domestic judicial reviews.Footnote ¹³ Yoo's interpretation of law in war so as to deny prisoner-of-war status to terrorists and Taliban forces, and their ensuing legal status as ‘unlawful combatants’,Footnote ¹⁴ pertains to the jus in bello realm. This acknowledged, the first component that identifies his work in the revisionist's jus ad bellum category is his notorious defence of the existence of ‘sufficient legal authority for the 2003 conflict with Iraq’.Footnote ¹⁵ His is a defence that, although it argumentatively includes the US government's official legal position based on the bearing of UN Security Council Resolution 1441 (2002) on Resolutions 687 (1991) and 678 (1990),Footnote ¹⁶ reaches outspokenly to the legality of anticipatory self-defence ‘beyond mere imminence’.Footnote ¹⁷ His consideration of the 9/11 terrorist acts as amounting to armed attacks that, independently of their attribution to a state actor, trigger the state's inherent right to self-defence,Footnote ¹⁸ constitutes the second broad component that categorizes his position in the law of war's revisionist category. This position is, however, broadly shared, although not solely, by many of those to whom the general adaptationist's labelFootnote ¹⁹ could be attached.Footnote ²⁰ Not so shareable by the so-called adaptationist position appears, nonetheless, Yoo's harshly critical reaction to the reforms proposed by the former UN Secretary-General's In Larger Freedom Footnote ²¹ and the High-Level Panel's reports.Footnote ²² These, according to Yoo, constitute a failed attempt to revisit an outmoded UN Charter-based ‘law enforcement paradigm toward the use of force’Footnote ²³ that does not take account of the realities of new ‘political and technological developments’.Footnote ²⁴ An adaptationist's defence of the legality of the anticipatory use of force in terms of imminence would thus fail to satisfy Yoo's preferred ‘cost-benefit analysis of expected harm’Footnote ²⁵ to replace the criterion in the Caroline case. This author also opposes the deferral to the Security Council of the ‘preventive’ and ‘protective’ – the latter as such inspired by the ‘responsibility to protect’ idearium – uses of force so highly praised by Anne Marie Slaughter,Footnote ²⁶ as they would, in Yoo's analysis, constitute obstacles to the ‘development of new international law doctrine through practice’.Footnote ²⁷ After minimizing the challenge posed ‘to the legitimacy of international law pertaining to the use of force by states’ by ‘the jurisprudential theories of a few scofflaws’,Footnote ²⁸ an adaptationist would retort by identifying today's challenges to legitimacy as falling into the categories of both humanitarian intervention and self-defence against an anticipated armed attack. For an adaptationist, the former is, in view of the Security Council's veto-paralysis, a domain in which ‘the rules have adapted’,Footnote ²⁹ while the latter constitutes an area where ‘the law is adapting, it is bound to adapt, and its legitimacy will be enhanced thereby’.Footnote ³⁰

As is widely known, both the revisionist's and the adaptationist's categorized ‘claims of legal change’Footnote ³¹ in this field have been opposed by the jurisprudence of the International Court of Justice (ICJ), ‘understood as a statement of the law as it now stands’.Footnote ³² It becomes, thus, worthwhile briefly to revisit recent ICJ jurisprudence to frame this introductory overview of the doctrinal state of the art in this domain. In its Advisory Opinion of July 2004, the ICJ stated that ‘Article 51 of Charter thus recognises the existence of an inherent right of self-defence in the case of armed attack by one state against another state’.Footnote ³³ This has been broadly interpreted as opposing the broadening of self-defence to cover non-state acts when these are not attributable to a state.Footnote ³⁴ This interpretation is reaffirmed and consolidated by the Court in its judgment of December 2005 in the Congo–Uganda case, in which the ICJ rejected Uganda's claims of self-defence since ‘the preconditions for the exercise of self-defence’, also termed ‘the legal and factual circumstances for the exercise of a right of self-defence’, did not exist on the basis that the relevant acts were not attributable to a state.Footnote ³⁵ A further argument in defence of this position could be found in the ICJ judgment of February 2007 in the Bosnia and Herzegovina v. Serbia and Montenegro case. In this instance the Court insisted on the Nicaragua case standard of attribution by subjecting it directly to the ‘overall control’ test set up by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić case in terms that seemingly tighten up even more the state attribution requirement in this area: ‘In this regard the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State's organs and its international responsibility.’Footnote ³⁶ As for the much debated issues of anticipatory and preventive self-defence, in the recent Congo–Uganda case the ICJ seemingly discarded even considering the former as a legal issue in stating, ‘Article 51 of the Charter may justify a use of force in self-defence only within the strict confines there laid down.’Footnote ³⁷ Less definitive appears to be its analysis of the legality of anticipatory self-defence or ‘anticipated attack’:Footnote ³⁸

In completing this brief general survey of the state of the art as far as the much debated jus ad bellum is concerned, one could thus attach the conservationist label to those authors who, like A. Orakhelashvili, seek explicit guidance in a strict reading of the Court's dicta in this domain and consider that ‘the approach based on the criteria of strict legality is the only permissible approach in terms of the application of jus ad bellum’.Footnote ⁴⁰ The labels of ‘revisionists’, ‘adaptationists’, and ‘conservationists’, although perhaps loosely indicative, have not been put forward, however, to be understood as watertight doctrinal categories. Suffice it to note how Judge Simma argued that the restrictive reading of Article 51 found in the Wall opinion ‘ought urgently to be reconsidered’ ‘in the light of more recent developments not only in State practice but also with regard to accompanying opinio juris’.Footnote ⁴¹ This three-level categorization should, therefore, be seen within the multifaceted and cross-bred spectrum covered by the extensive doctrinal work in the field of the law of war. The acknowledged aim of this introduction was for it to serve as an instrumental background against which to place the book under review. The question that ensues is, thus, that of understanding how David Kennedy approaches in his book the doctrinal polemic involving the law of force as the provider ‘of the best-known legal tools for defending and denouncing military action’ (p. 39).

Kennedy begins by coldly contradicting those opponents of the Bush administration ‘that have routinely claimed that the United States has disregarded these rules’ (p. 40) by pointing out that both opponents and supporters of the Iraq war as well as both opponents and supporters of the great panoply of US legal measures related to the war on terror ‘were playing with the same deck’ (p. 40) in presenting ‘professional arguments about how recognised rules and standards, as well as recognised exceptions and jurisdictional limitations, should be interpreted’ (p. 40). The author's only concession with reference to the Bush administration's legal advisers is to point out that ‘as professionals, these lawyers failed to advise their client adequately about the consequences of the interpretations they proposed, and about the way others would read the same texts – and their memoranda’ (p. 39). Thus Kennedy does not adopt any legal position to the detriment of any other, as his assessment does not seemingly pretend to persuade his reader at the level of the world of legal validity presented in the vocabulary of the UN Charter. The extent to which that excludes the author from the category of being a ‘true jus-internationalist’, according to A. Cançado Trindade's understanding of those who actually ‘comply with the ineluctable duty to stand against the apology of the use of force which is manifested in our days through distinct “doctrinal” elaborations’,Footnote ⁴² is not for us to judge. Suffice it to note that the starting point of Kennedy's convoluted perspective on the matter is that ‘the law of force’ is a form of ‘vocabulary for assessing the legitimacy’ (p. 41) of a form of conduct (e.g. a military campaign) or ‘for defending as well as attacking the “legality”’ (p. 41) of an act (e.g. distinguishing legitimate from illegitimate targets) in which the same law of force becomes a two-edged sword, everybody's and no one's strategic partner in a contemporary world where ‘legitimacy has become the currency of power’ (p. 45). For the author, in today's age of ‘lawfare’ (p. 12), ‘to resist war in the name of law . . . is to misunderstand the delicate partnership of war and law’ (p. 167). In Kennedy's view, therefore, ‘there is little comfort in knowing that law has become the vernacular for evaluating the legitimacy of war and politics where it has done so by itself becoming a strategic instrument of war and the continuation of politics by similar means’ (p. 132).

3. Law as a modern legal institution

Of War and Law seems, indeed, to be animated by a certain philosophical perplexity regarding the ambiguous relation between the apparently antithetical nature of the terms appearing in its title. Since antiquity both jurists and philosophers have taught that the law's raison d'être is that of making social peace possible, of overcoming what would later be commonly known as the Hobbesian state of nature: bellum omnium contra omnes. Kant noted that law should be perceived first and foremost as a pacifying tool – in other words, ‘the establishment of peace constitutes, not a part of, but the whole purpose of the doctrine of law’Footnote ⁴³ – and Lauterpacht projected that same principle onto the international sphere: ‘the primordial duty’ of international law is to ensure that ‘there shall be no violence among states’.Footnote ⁴⁴ The paradox lies, of course, in that law performs its pacifying function not by means of edifying advice, but by the threat of the use of force. In this sense, as Kennedy points out, ‘to use law is also to invoke violence, at least the violence that stands behind legal authority’ (p. 22). Hobbes himself never concealed the fact that the state, ‘that mortal god, to which we owe under the immortal God our peace and defence’, would succeed in eradicating inter-individual violence precisely due to its ability to ‘inspire terror’;Footnote ⁴⁵ but Weber – ‘the State is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’Footnote ⁴⁶ – Godwin,Footnote ⁴⁷ and KelsenFootnote ⁴⁸ have also provided support for the same proposition. This ambivalent and paradoxical relationship between law and violence, which is obvious in the domestic or intra-state realm, becomes even more obvious in the interstate domain with its classical twin antinomy of ubi jus, ibi pax and inter arma leges silent until the law in war emerges as a bold normative sector which dares to defy this conceptual incompatibility; even war can be regulated, be submitted to conditions and limitations. The hesitations of Kant in addressing jus in bello Footnote ⁴⁹ or the very fact that the Latin terms jus ad bellum and jus in bello were coined, as R. Kolb has pointed out,Footnote ⁵⁰ at relatively recent dates, seem to confirm that this has never been per se an evident aspiration.Footnote ⁵¹

Kennedy explains his own calling as international lawyer as being partly inspired by his will to participate in the law's civilizing mission (p. 29)Footnote ⁵² as something utterly distinct from war:

The author notes how this virginal confidence in the pacifying efficiency of international law – its presumed ability to forbid, limit, humanize war ‘from outside’ – becomes progressively nuanced, eroded, almost discredited by a series of considerations. The disquieting image of the ‘delicate partnership of war and law’ becomes more and more evidenced; the lawyer who attempts to regulate warfare inevitably also becomes its accomplice. As Kennedy puts it,

Unable to suppress all violence, law typifies certain forms of violence as legally admissible, thus ‘privileging’ them with regard to others and investing some agents with a ‘privilege to kill’ (p. 115). Law thereby becomes, in Kennedy's view, a tool not so much for the restriction of war as for the legal construction of war.Footnote ⁵³

Elsewhere we have labelled Kennedy ‘a relative outsider’Footnote ⁵⁴ who, peering from the edge of the vocabulary of international law, tries to ‘highlight its inherent structural limits, gaps, dogmas, blind spots and biases’, as someone ‘specialised in speaking the unspeakable, disclosing ambivalences and asking awkward questions’.Footnote ⁵⁵ The ‘unspeakable’, in the case of the ‘law of force’, is precisely, in Kennedy's view, this process of involuntary complicity with the very phenomenon one supposedly wants to prohibit. Prepared to ‘stain his hands’ à la Sartre, in his attempt to humanize the military machine from within, to walk one step behind the soldier reminding him constantly, as an imaginary CNN camera, of the legal limits of the legitimate use of force, the lawyer starts to realize, in the author's view, that he is becoming but an accessory to the war machine. Kennedy maintains that law, in its attempt to subject war to its rule, has been absorbed by it and has now become but another war instrument (p. 32);Footnote ⁵⁶ law has been weaponized (p. 37).Footnote ⁵⁷ Contemporary war is by definition a legally organized war: ‘no ship moves, no weapon is fired, no target selected without some review for compliance with regulation – not because the military has gone soft, but because there is simply no other way to make modern warfare work. Warfare has become rule and regulation’ (p. 33). War ‘has become a modern legal institution’ (p. 5), with the result that the international lawyer finds himself before an evident instance of Marxian reification, in other words ‘the consolidation of our own products as a material power erected above us beyond our control that raises a wall in front of our expectations and destroys our calculations’.Footnote ⁵⁸ Ideas and institutions develop ‘a life of their own’, an autonomous, perverted dynamism.

4. Ambiguities and contingencies of the contemporary law of war

The institutional scheme and the rules of the use of force set up by the UN Charter were initially conceived as a sincere attempt definitively to overcome interstate war. The UN purpose, as stated in the Preamble of the UN Charter – ‘to save succeeding generations from the scourge of war’ – was that the age of war be superseded by the age of collective security. The system was, as noted by Franck, a two-tiered one. The upper tier contained ‘a normative structure for an ideal world’; it included the absolute banning ‘of the use of force against the territorial integrity or political independence of any state’ (Art. 2(4)) and a mechanism of collective (diplomatic and/or military) action against states having violated such prohibition (Arts. 39–43). The lower tier, by contrast, represented the interim preservation of an older international legal concept (dating from the ‘age of war’): the individual or collective right to self-defence (Art. 51). We are thus confronted by a hybrid system (‘a bifurcated regime’Footnote ⁵⁹), halfway between the ‘age of war’ and the ‘age of collective security’. This is a system which has supposedly failed, partly due to causes not foreseeable in 1945: the outbreak of the Cold War made agreed action by the permanent members of the Security Council almost unthinkable; confrontational interstate aggressions were replaced by more subtle techniques of indirect conflict (the export of insurgency, covert meddling in civil wars, etc.); and the development of nuclear and chemical weapons convinced some of the necessity of defending a broader interpretation of the right to self-defence in the light of Article 51, including a ‘right to anticipatory self-defence’.Footnote ⁶⁰ Thus Kennedy can argue that ‘what began as an effort to monopolise force has become a constitutional regime of legitimate justifications for warfare’ (p. 79). The UN Charter, far from ensuring the dawning of an ‘age of collective security’, has rather become the contemporary legal language for the justification and organization of war: ‘it is hard to think of a use of force that could not be legitimated in the Charter's terms’ (p. 80). In order to support his argument Kennedy points out how ‘the Bush and Blair administrations argued for the [Iraq] war in terms drawn straight from the UN Charter, and they issued elaborate legal opinions legitimating the invasion in precisely those terms’ (p. 40).

Once Kennedy has stressed what we could term the teleological ambiguity of the law of war, he proceeds with his deconstructive analysis by noting a second type of ambivalence or relativity in jus belli: the historical and political contingency of all its categories.Footnote ⁶¹ These categories have been rightly reshaped by N. Berman into two major questions – what is a war? who is a warrior? A shift from an initial formalist-statist framework to what we could label a ‘factualist-pluralist’ approach is observable in the treatment of these questions during the twentieth century. Thus, prior to the Second World War, jus belli granted states the monopoly of the combatant's privilege: states themselves determined what was a war and officially declared whether they were at war, and only their regular armies were recognized as combatants, answering, thereby, the question of ‘who is a warrior?’ This standpoint was ‘formalist’ insofar as the legal existence or non-existence of a war depended on the formal declaration of war by the states involved in the conflict, according to the traditional ‘state of war doctrine’. But, as the twentieth century advanced, states failed increasingly to issue formal declarations of war (e.g. the Japanese attack on Pearl Harbor) (p. 67).Footnote ⁶² Accordingly, jus in bello had to find new empirical criteria enabling jurists to ascertain objectively the existence of a conflict (and, consequently, the applicability of its rules), irrespective of the formal recognition of a ‘state of war’ by governments. Thus common Article 2 of the Geneva Conventions (1949) establishes that the Conventions are applicable to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them’. While this formulation was still characterized by a state bias – as it presupposed that the subjects of the conflict would at any rate be states – since then various non-governmental players have been pressing for an extension of the legal categories of ‘war’ and ‘combatant’.Footnote ⁶³ As a result, the 1977 Protocol I to the Geneva Conventions added ‘armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’. This criterion seemed, however, to render the applicability of the Conventions dependent on the motivations that allegedly inspired the fighters of a non-governmental guerrilla war – that is, aspects that were traditionally dealt with by jus ad bellum, in other words, in Francisco de Vitoria's terminology, the problem of the ‘just entitlements’, as A. Sofaer has noted.Footnote ⁶⁴ No significant progress towards the ‘objectivity’ promised by the new ‘factualist-pluralist’ approach has therefore seemingly been made. If the anti-colonial or anti-racist fighters are ‘combatants’ as far as jus in bello is concerned, should fighters struggling for other causes not now be counted as ‘combatants’ too? Are there any limits whatsoever to those claimed causes?Footnote ⁶⁵ This relativity, of course, not only applies to the subjects of jus in bello but also affects its contents. Against this backdrop, Kennedy stresses that both the actual and the potential subjects of law in war will now be entitled to hold different views as to the limits of tolerable military conduct. If, from a Western perspective, the tactics of the Afghan or Iraqi insurgents appear intrinsically perfidious – terrorists disguising themselves as civilians, or using civilians as human shields, immolating themselves in suicide attacks, shooting from mosques and so forth – the insurgents would retort that only the use of those tactics could enable them to offset the huge technological asymmetry of the opposing forces (p. 139).Footnote ⁶⁶ They would also claim that, from their perspective, perfidy rather lies in bombing from an altitude of 5,000 metres – which trades the security of the pilot for the increased likelihood of ‘collateral damage’ – checking civilians systematically in search of weapons, and so on. Contemporary law in war turns out to be, in the author's formally egalitarian perspective, the legal language in which a global ‘conversation’ about the moral limits of military conduct unfolds – a conversation in which, moreover, an increasing variety of actors, with a growing number of heterogeneous outlooks, are taking part.Footnote ⁶⁷

Kennedy's book thus appears as an attempt to show how the shift from formalism to realismFootnote ⁶⁸ – and from statism to pluralism – in the response to the questions ‘what is a war?’ and ‘who is a warrior?’ entails a blurring of the edges – once seemingly distinct – of both categories. In this sense, Of War and Law presents itself as a story of the ‘rise and fall of a traditional legal world that sharply distinguished war from peace and in which law was itself cleanly distinguished from both morality and politics’ (p. 46). For the author it is not just that formal ‘declarations of war’ and ‘states of war’ (which used to provide a sharp and intellectually reassuring (p. 30)Footnote ⁶⁹ line of separation between war and ‘non-war’) have fallen into oblivion, but that we are witnessing what might be called ‘a revenge of Clausewitz’ and his conspicuous formulation of war as ‘the continuation of politics by other means’. The use of force appears as just another area within a range of foreign policy measures at the disposal of governments. That range is a continuum within which it is very hard to ascertain where diplomacy and politics end and where war begins (p. 114).Footnote ⁷⁰ As Kennedy notes, ‘the point about war today . . . is that these distinctions have become unglued. War and peace are far more continuous with one another than our rhetorical habits of distinction and our wish that war be truly something different would suggest’ (p. 3).Footnote ⁷¹ This blurring of the war/politics boundary was already a feature of the long Cold War period: was the tug of war between the superpowers genuine war, or was it peace? (p. 3).Footnote ⁷² The contraditio in terminis of the very concept ‘Cold War’ was precisely meant to express the ambiguous nature of that situation, which went beyond the patterns of the formalist-statist jus belli. Following the termination of the Cold War, this continuity has only increased and the use of ‘a bit of’ military force (in a new age of ‘distotalized’ (p. 11)Footnote ⁷³ or ‘virtualized’Footnote ⁷⁴ war) has become another tool within the foreign-policy toolkit (diplomatic pressures, economic sanctions) of the great powers. Thus the ‘opponents of the Iraq wars faced the immediate question – is the UN sanctions regime more or less humanitarian? More or less effective?’ (p. 107). In Kennedy's view the final image is one where no categorical gap between the use of force and other means of state pressure exists. Today's scenario would, therefore, be one where the qualitative boundary, previously taken for granted, has simply disappeared and where considerations of efficiency, opportunity, or humanity are bound to determine the state's final choice.

5. Alternatives for a new era of blurred legal distinctions?

While noting that Kennedy's perspective seems to want to offer an extension of the political margin of manoeuvre now available to a very limited number of states in the field of the use of force to every state of the international community, this new situation, full of dim and ambiguous areas, halfway between war and peace or war and politics, still seems, in the authors' view, to require a new type of jus belli: a law which will not be based on strict dualities or binary classifications, a law that will not rest on the ‘on-off war/not war dichotomy’ (p. 107).Footnote ⁷⁵ This law will contain, as Veuthey noted back in the early 1980s, few or no categorical prohibitions or unequivocal rules, but ‘a series of flexible provisions, an absence of rigidity in [the conditions of] their application, [and] a range of protective rules’.Footnote ⁷⁶ If contemporary ‘war’ turns out to be a sfumato of vague outlines – hardly distinguishable from ‘peace’, hardly distinguishable from politics – the law of war needs to respond by making its own categories more versatile and flexible. Kennedy presents this as a shift from a ‘law of rules’ to a ‘law of principles’ (p. 86).

His book offers, in this respect, an interesting analysis of the difference between rules and principles, an analysis in which traces of the influence of Oliver Wendell Holmes,Footnote ⁷⁷ Roscoe Pound,Footnote ⁷⁸ and Ronald M. DworkinFootnote ⁷⁹ can be discerned.Footnote ⁸⁰ Rules usually ‘attribute’ – the Kelsenian Zurechnung – a legal consequence to the verification of a legal condition (‘both accurately defined’), while a principle rather ‘states a reason that argues in one direction, but does not necessitate a particular decision, . . . [as] there may be other principles or policies arguing in the other direction’.Footnote ⁸¹ Rules have a categorical nature and are applied under an ‘all or nothing’ mode, whereas principles may be weighed, qualified, partly applied, and so on. While the validity of rules depends on their formal pedigree – the fact of having been enacted by competent authorities, through procedures pre-established by the legal order – the validity of principles relies on their inherent reasonableness or persuasiveness (pp. 91–2);Footnote ⁸² in other words, a principle would be ‘valid’ if it succeeds in convincing many people.

If one accepts Kennedy's analysis, we would be moving towards something which resembles a Poundean–Dworkinian law of force, consisting more of a set of standards and principles than of a code of rules. Those principles would take shape in the polyphonic ‘conversation’, to which Kennedy often refers, among many agents (governmental and, increasingly, non-governmental), about what is admissible in a war. Principles would not be applied in the ‘all-or-nothing’ way,Footnote ⁸³ but in a sort of ‘more or less’ manner: ‘Re-imagined as tools of persuasion, the validity, or bindingness or force of norms becomes itself a matter of more or less’ (p. 95). Usually the more-or-less reasoning will be informed by an estimate of costs and benefits in which the costs may be addressed, not just in utilitarian terms, but also in moral terms: is it legitimate to cause civilian casualties in order to achieve this or that military or political objective? How many civilian victims? and so on (p. 143).Footnote ⁸⁴ Proportionality thus becomes the prime yardstick of law in war: ‘an antiformal law in war of broad standards represents a triumph for grasping the nettle of costs and benefits’ (p. 89). No absolute prohibitions can coexist with a perspective in which everything is a matter of proportionality and of ‘more or less’: even the use of torture (p. 110)Footnote ⁸⁵ or of nuclear weapons (p. 109)Footnote ⁸⁶ would be susceptible of a ‘non-dogmatic’ evaluation in terms of opportunity and necessity.

This sfumato of the dividing line between war and politics and of the ‘model of rules’, now giving way to a ‘model of standards’ in the law of war, finds an obvious correlate in the spatial and temporal blurring of the front line that appears to characterize contemporary war. The twentieth century has witnessed an evolution from the 1914–18 trench warfare (with perfectly identifiable national armies holding on to a stable and completely recognizable front line) to the 1939–45 ‘war of motion’ (with more shifting front lines and the significant involvement of irregular guerrillas). This latter kind of conflict has proliferated in the second half of the twentieth century (from anti-colonial insurgencyFootnote ⁸⁷ and the proxy wars and ‘low intensity conflicts’ of the Cold War to the interventions on behalf of the United Nations or the international community in the 1990s), culminating in the ‘war against the West’ proclaimed by Al-Qaeda and the ‘war on terror’ decreed by the US government in response. As a result of this evolution, ‘it's asymmetric, it's chaotic, it's not linear’ (p. 112).Footnote ⁸⁸ The vanishing of the spatial front line (the territorial line of separation between ‘zones of war’ and pacified zones) reaches its climax in the war on terror, waged against a somehow ‘immaterial’ – and thereby ubiquitous – enemy who can strike anywhere (pp. 113–14). The temporal line of separation (between the time of peace and the time of war) also disappears, as shown by the intermittent conflict between the United Nations and Iraq between 1991 and 2003 or the again evident discontinuity in the current ‘war’ against Al-Qaeda. Even the subjective line of separation between combatants and non-combatants is greatly eroded, as is seen in Iraq or Afghanistan: ‘there are civilians all over the battlefield – not only insurgents dressed as refugees, but special forces operatives dressing like natives, private contractors dressing like Arnold Schwarzenegger, and all the civilians running the complex technology and logistical chains “behind” modern warfare’ (p. 119).

War's ubiquity, its discontinuity, and the blurring of its outline are not without psychological and moral consequences in the military: ‘Experts have long observed that when warfare itself seems to have no clear beginning or end, no clear battlefield, no clear enemy, military discipline, as well as morale, breaks down’ (p. 119). This dispiriting confusion that affects soldiers also concerns the international lawyer, who sees the old rules of jus belli evaporate and be replaced by much vaguer ‘standards’. The last pages of Of War and Law convey, in fact, a clear feeling of defeat or loss, showing the demoralization of the international lawyer who still tries to take the law of war seriously: ‘How can ethical absolutes and instrumental calculations be made to lie down peacefully together? How can one know what to do, how to judge, whom to denounce?’ (p. 117). The former categorical imperatives (‘thou shalt not bomb cities’, ‘thou shalt not execute prisoners’, etc.) give way to an elastic and blurred logic of more and less, within which instrumental might triumphs definitively over the ethical (p. 132).Footnote ⁸⁹ As the new flexible ‘standards’ seem more susceptible to strategic exploitation and modulation than do the old strict rules, the various actors will play with the labels of jus belli – now definitively versatile – according to their strategic needs:

Kennedy reiterates a new aspect of the ‘weaponization of the law’: the legal qualification of facts appears as a means of conveying messages to the enemy and to public opinion alike, because in the age of immediate media coverage, wars are fought as much in the press and opinion polls as they are on the battlefield. The skilled handling of jus belli categories will benefit one side and prejudice the other (p. 127);Footnote ⁹¹ as the coinage of the very term ‘lawfare’ seems to reflect, the legal battle has already become an extension of the military one (p. 126).Footnote ⁹² In cataloguing some of the dark sides of the law of war, Kennedy also stresses how the legal debate tends to smother and displace discussions which would probably be more appropriate and necessary. Thus the controversy about the impending intervention in Iraq, which developed basically within the discursive domain of the law of war, largely deprived lawyers of participating in an in-depth discussion on the neo-conservative project of a ‘great Middle East’ – more democratic and Western-friendly and less prone to tyranny and terrorism – the feasibility of ‘regime change’, an adequate means of fostering democracy in the region, and so on: