In her ambitious new book, Tanisha Fazal seeks to account for changing patterns in the prevalence of “war formalities,” including a decrease in declarations of war and peace by states, as well as declarations of independence by secessionist movements, and the simultaneous increase in the conclusion of secessionist conflicts via peace agreements. These trends are puzzling because they have coincided with the expansion of international humanitarian law (IHL), such as the Geneva Conventions of 1949 and their Additional Protocols of 1977, which aim to regulate state conduct in war while only minimally addressing nonstate actors. However, rather than constrain behavior as intended, Fazal argues, the proliferation of IHL has had unanticipated effects, such as incentivizing states to evade burdensome legal requirements by avoiding formal acknowledgment that they are at war. At the same time, secessionist movements have sought to secure support from the international community by refraining from making destabilizing unilateral declarations of independence and acceding to formal peace agreements.
Together, these findings suggest that more law does not necessarily result in more legalized or humanitarian forms of warfare. In advancing these insights, the book contributes to a growing body of scholarship that investigates how actors instrumentally engage legal norms and how law shapes behavior beyond compliance or non-compliance.
War of Laws proceeds in three parts, beginning with an overview of the development of IHL from the mid-nineteenth century on. This is far from a rote account. Fazal plumbs the archival record to offer an original analytical history with broader significance for her argument. She notes how “law-takers,” such as state militaries, once played a lead role in the formation of IHL, but were increasingly displaced in the mid to latter twentieth century by “lawmakers,” such as legal professionals and nongovernmental advocates who have come to dominate treaty negotiations (p. 24). This has been consequential, increasing legal constraints on belligerents in comparison to the enabling nature of earlier IHL, thus deepening the bureaucratic, financial, and strategic costs of compliance for states. Yet IHL has done far less to regulate the conduct of nonstate actors, instead marginalizing their legal status.
The remainder of the book examines how and why the expansion and deepening of IHL has impacted belligerent decisions to engage in war formalities. While Fazal is explicit that compliance with IHL is not her dependent variable, she conceptualizes use of war formalities as a means through which actors signal intent to comply because doing so reduces ambiguity about their obligations (p. 45). Grounded firmly in the rationalist tradition, the resultant inquiry focuses on the shifting costs and benefits of this signaling.
To determine the extent to which IHL proliferation impacts state declarations of war (Chapter 3), jus in bello behavior (Chapter 4), and participation in peace treaties (Chapter 5), Fazal runs regressions using an original data set (p. 76). The quantitative analysis is accompanied by qualitative historical case studies of the Spanish-American War, the Boxer Rebellion, the Bangladesh War, and the Falklands/Malvinas War. The trends are striking. States declared war in 65% of interstate conflicts in the nineteenth century, but only 17% in the twentieth century, including just three times after 1945 and never after 1972 (p. 80). Meanwhile, 75% of interstate wars concluded with peace treaties pre-1945, but only 7% post-1945 (p. 151). Fazal attributes this to growing state concern that war formalities could increase their legal exposure to ever more restrictive IHL rules. The argument is illustrated most convincingly in instances such as the Falklands/Malvinas War, where there is explicit contemporaneous documentation of state rationales—in that case, statements by British legal advisors and decision makers tying avoidance of formalities with concerns about IHL requirements.
While the study of interstate formalities could stand on its own, the third section of the book shifts focus to secessionist conflicts. Fazal’s broad scope of inquiry proves analytically fruitful, highlighting how IHL proliferation has affected nonstate actors differently from states. Here, Fazal once again employs an original data set (p. 164), along with case studies of the secession of Texas from Mexico, the attempted secession of South Moluccas from Indonesia, and the secession of South Sudan. The analysis reveals that secessionists, including groups with highly viable claims, have increasingly avoided unilateral declarations of independence (Chapter 6), engaged in less countercivilian violence than nonsecessionist rebels (Chapter 7), and increasingly participated in peace agreements (chapter 8). This is explained by secessionists’ desire to win recognition from an international community that promotes sovereign stability, supports IHL compliance in theory, and encourages multilateral mediation, which in turn helps generate formal peace treaties (p. 234). Secessionists thus try to act the part of nascent responsible states by conforming, relative to other armed nonstate actors, to these preferences.
Yet Fazal shows that this performative signaling does not necessarily correlate with recognition (p. 216). As illustrated by the case of South Sudan, countercivilian atrocities did little to slow their successful bid for statehood. Nor do formal peace agreements always last (p. 242). While Fazal's overall argument about legitimacy-seeking incentives is convincing, there are some anomalies in the data, such as the finding that rebels were 40% more likely to target civilians after the 1977 Additional Protocols regulated noninternational armed conflicts than before (pp. 207–9), which make the analysis of secessionism somewhat difficult.
The book concludes with policy implications. First, it matters who is in the room during treaty negotiations. Therefore, emergent efforts to regulate lethal autonomous weapons systems or “killer robots” and cyber threats may be more likely to effectively shape state behavior if militaries participate in rule generation and perceive constraints as reasonable and practical (pp. 245–46). However, it is sometimes hard to pin down what this means in practice. While it may be true that excessively detailed IHL is hard to comply with, Fazal also notes that the broad parameters of Common Article 3 of the Geneva Conventions of 1949 are so vague as to be easily shirked (p. 19). How exactly to craft laws that are permissive enough to be workable but constraining enough to place meaningful limits on state violence requires further probing. The book also concludes that the international community could do more to reward well-behaved secessionists (p. 251), and should more actively commit to supporting peace agreements long term (p. 253). While IHL was not primarily created to regulate nonstate actors, their sensitivity to constraints should be encouraged.
As with all such scholarly endeavors, what is gained in breadth is occasionally lost in depth. In looking for wider trends, the book is less able to systematically differentiate between divergent forms of strategic legal evasion or engagement in which actors may take part. States have almost universally eschewed war formalities for the past half century, but there is undoubtedly significant variation in the nature of this avoidance across cases and time. For instance, while the United States, one of the world’s most prolific war makers, has rejected war formalities and decried the onslaught of “lawfare,” it has also invoked the laws of war to justify controversial policies in the “War on Terror.” Because IHL allows combatants to kill other combatants as well as civilians directly participating in hostilities, the United States has claimed that targeted killing with remotely piloted aircraft around the world is lawful. In this sense, at least some law-takers may have adapted to IHL proliferation through deployment of their own more permissive legal interpretations. Even where states acknowledge the applicability of IHL, there is still ample room for maneuver. Moreover, legally sophisticated states are aware that avoiding formalities and employing euphemisms does not in fact obviate their IHL obligations, which, as Fazal notes, are triggered by the existence of armed conflict, not declarations of war (p. 82).
A related point arises insofar as the book does not say much about the legal rules, at least in theory, that bind states in the absence of IHL, namely, the plethora of treaties and other legal sources that comprise international human rights law (IHRL). In defining contemporary IHL, the book follows the International Committee of the Red Cross, which includes certain IHRL treaties, such as the Convention against Torture and the Convention on the Rights of the Child in its IHL treaty database (p. 23). However, even when states effectively avoid the clear application of IHL, they cannot legally opt out of their basic nonderogable IHRL obligations. The space beyond IHL is not a lawless one. In fact, IHRL arguably places even more stringent constraints on the exercise of state violence than does IHL. This raises a number of perplexing questions about how states that find IHL compliance too onerous understand their legal liabilities when engaging in “counterterrorism” or “police actions” outside of this framework (p. 82).
Wars of Law is an impressive undertaking that makes a significant contribution to the international law and international security literatures. Fazal generates original data, expertly employs mixed methods to explore a wide array of cases, and innovatively tackles both interstate and civil wars simultaneously. In identifying the unanticipated effects of IHL proliferation, the book should inspire critical reflection, and will benefit from being read in conjunction with further efforts to tease out the particular dynamics of strategic legal evasion and engagement that emerge in different contexts.
