Downloaded by [University of Defence] at 02:13 24 May 2016 The most important application of just war theory since 9/11. Rochester asks all the difficult questions – an essential book for our time. John Vasquez, University of Illinois at Urbana-Champaign Backed by a treasure trove of research, this is an important and up-to-date study of the deterioration of international rules that govern the use of force. It should be read and pondered by international lawyers, international relations theorists, and policymakers who think about how war can be restricted by law. Michael J. Glennon, Boston University Law School This important new work suggests that the ‘new face of violence’ challenges international legal norms as much as it does international peace and security. To his credit, J. Martin Rochester eschews daydreaming of a better world in favor of practical reforms that incentivize compliance and further the United Nations’ concern to ‘save succeeding generations from the scourge of war.’ Robert P. Barnidge, Jr., Webster University Downloaded by [University of Defence] at 02:13 24 May 2016 This page intentionally left blank Downloaded by [University of Defence] at 02:13 24 May 2016 THE NEW WARFARE This book looks at the evolving relationship between war and international law, examining the complex practical and legal dilemmas posed by the changing nature of war in the contemporary world, whether the traditional rules governing the onset and conduct of hostilities apply anymore, and how they might be adapted to new realities. War, always messy, has become even messier today, with the blurring of interstate, intrastate, and extrastate violence. How can the United States and other countries be expected to fight honorably and observe the exist- ing norms when they often are up against an adversary who recognizes no such obligations? Indeed, how do we even know whether an “armed conflict” is underway when modern wars tend to lack neat beginnings and endings and seem geographically indeterminate, as well? What is the legality of anticipatory self- defense, humanitarian intervention, targeted killings, drones, detention of cap- tured prisoners without POW status, and other controversial practices? These questions are explored through a review of the United Nations Charter, Geneva Conventions, and other regimes and how they have operated in recent conflicts. Downloaded by [University of Defence] at 02:13 24 May 2016 Through a series of case studies, including the U.S. war on terror and the wars in Afghanistan, Iraq, Gaza, Kosovo, and Congo, the author illustrates the challenges we face today in the ongoing effort to reduce war and, when it occurs, to make it more humane. J. Martin Rochester is Curators Distingushed Teaching Professor of Political Science at the University of Missouri-St. Louis and the author of several books on international relations, including Between Peril and Promise: The Politics of International Law and U.S. Foreign Policy in the 21st Century: Gulliver’s Travails. INTERNATIONAL STUDIES INTENSIVES Series Editors Mark A. Boyer and Shareen Hertel International Studies Intensives (ISI) is a book series that springs from the desire to keep students engaged in the world around them. ISI books pack a lot of infor- mation into a small space—they are meant to offer an intensive introduction to subjects often left out of the curriculum. ISI books are relatively short, visually attractive, and affordably priced. Titles in the Series The Rules of the Game Watching Human Rights A primer on International Relations The 101 best films Mark R. Amstutz Mark Gibney Development Redefined The Global Classroom How the market met its match An essential guide to study abroad Robin Broad and John Cavanagh Jeffrey S. Lantis and Jessica DuPlaga Protecting the Democratic Uprisings in the New Global Environment Middle East Gary C. Bryner Youth, technology, human rights, and US foreign policy A Tale of Two Quagmires Mahmood Monshipouri Iraq, Vietnam, and the hard lessons of war Sixteen Million One Kenneth J. Campbell Understading civil war Patrick M. Regan Celebrity Diplomacy Andrew F. Cooper Violence against Women and the Law Downloaded by [University of Defence] at 02:13 24 May 2016 Global Health in the 21st Century David L. Richards and Jillienne Haglund The globalization of disease and wellness People Count! Debra l. DeLaet and David E. DeLaet Networked individuals in global politics Terminate Terrorism James N. Rosenau Framing, gaming, and negotiating conflicts Karen A. Feste Paradoxes of Power From Jicama to Jackfruit US foreign policy in a changing world The global political economy of food David Skidmore Kimberly Weir Global Democracy and the World Governing the World? Social Forums Addressing “problems Second edition without passports” Jackie Smith and Marina Karides et al. Thomas G. Weiss The New Warfare Myth and Reality in Rethinking rules for an unruly world International Politics J. Martin Rochester Meeting global challenges through collective action International Relations Jonathan Wilkenfeld as Negotiation Brian R. Urlacher Forthcoming in the Series A Humbled Superpower American Exceptionalism US foreign policy and possibilities Reconsidered of contrition US foreign policy, human rights, and Loramy Gerstbauer world order David P. Forsythe and Spirits Talking Patrice C. McMahon Conversations on right and wrong in the affairs of states Stephen D. Wrage Downloaded by [University of Defence] at 02:13 24 May 2016 This page intentionally left blank Downloaded by [University of Defence] at 02:13 24 May 2016 THE NEW WARFARE Rethinking rules for an unruly world J. Martin Rochester Downloaded by [University of Defence] at 02:13 24 May 2016 Add AddAddAddAdd Add Add AddAdd AddAdd AddAdd First published 2016 by Routledge 711 Third Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2016 Taylor & Francis The right of J. Martin Rochester to be identified as author of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging in Publication Data Names: Rochester, J. Martin, author. Title: The new warfare : rethinking rules for an unruly world / J. Martin Rochester. Description: New York, NY : Routledge, 2016. | Series: International studies intensives | Includes bibliographical references. Identifiers: LCCN 2015034063| ISBN 9781138191884 (hardback) | ISBN 9781138191891 (pbk.) | ISBN 9781315640242 (ebook) Subjects: LCSH: War (International law) Classification: LCC KZ6385 .R628 2016 | DDC 341.6–dc23 LC record available at http://lccn.loc.gov/2015034063 ISBN: 9781138191884 (hbk) ISBN: 9781138191891 (pbk) ISBN: 9781315640242 (ebk) Typeset in Bembo by Taylor & Francis Books Downloaded by [University of Defence] at 02:13 24 May 2016 To Eli, in the hope he and his siblings and cousins live in an ever more peaceful and humane world Downloaded by [University of Defence] at 02:13 24 May 2016 This page intentionally left blank Downloaded by [University of Defence] at 02:13 24 May 2016 CONTENTS Preface xiv PART I Introduction: Framing the Puzzle 1 1 The Changing Nature of War: Do We Need New Rules for an Old Problem? 3 The Context for this Study: The New Warfare 4 The Purpose of the Book 6 Trends in War and the Use of Armed Force 7 Interstate War 10 Civil War 14 Terrorism and Extrastate Violence 16 Challenges to the International Regime Governing the Use of Downloaded by [University of Defence] at 02:13 24 May 2016 Armed Force 19 The Plan of the Book 22 Chapter 1 Discussion Questions 22 PART 2 The Laws of War: What Are the Rules? 29 2 On Starting a War: The United Nations Charter and Other Jus Ad Bellum Rules 31 xii Contents Historical Efforts to Regulate the Outbreak of War Before 1945 31 Prior to 1648 31 The Eighteenth and Nineteenth Centuries 33 World War I, The Interwar Period, and the League of Nations (1914–1939) 34 World War II and the United Nations Charter 36 The Evolution of Jus Ad Bellum Rules Since 1945: Principle and Practice 39 What Rules Apply to Civil Wars? 44 What Rules Apply to Humanitarian Intervention? 45 What Rules Apply to “Self-Defense” Against State and Nonstate Actors? 47 Conclusion 50 Chapter 2 Discussion Questions 51 3 On Conducting a War: The Geneva Conventions and Other Jus In Bello Rules 54 Historical Efforts to Regulate the Conduct of War Before 1945 55 World War II and Its Aftermath: The 1949 Geneva Conventions and Other Jus In Bello Rules 58 The Evolution of Jus In Bello Rules Since 1945: Principle and Practice 62 Observing the Rule of “Distinction”: Divergence between Principle and Practice 62 What Model Applies: “Warfare” or “Lawfare”?66 Regulating Weapons: Drones, WMDs, and Other Lethal Tools 68 Conclusion 70 Chapter 3 Discussion Questions 71 Downloaded by [University of Defence] at 02:13 24 May 2016 4 On Concluding a War: The Absence of Jus Post Bellum Rules 75 The Aftermath of War as an Afterthought 75 The Development of Jus Post Bellum Rules: What Would A Just Peace Look Like? 78 Applying Jus Post Bellum Rules: Easier Said Than Done 81 Conclusion: Selection of Cases Examining the Laws of War in Action 82 Chapter 4 Discussion Questions 82 Contents xiii PART 3 The Laws of War: Are They Still Relevant? 85 5 Applying Jus Ad Bellum Rules to the New Warfare: Cases 89 The Second Gulf War and Anticipatory Self-Defense 89 The Osama bin Laden Raid and the War on Terror 95 Kosovo and the Responsibility to Protect 99 Conclusion 103 Chapter 5 Discussion Questions 103 6 Applying Jus In Bello Rules to the New Warfare: Cases 108 The U.S.