The European Journal of International Law Vol. 24 no. 1 © The Author, 2013. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved. For Permissions, please email: [email protected] The Fog of Victory Gabriella Blum* Downloaded from Abstract What does victory mean today? How do we know who ‘won’ the war and what does the http://ejil.oxfordjournals.org/ winner win by winning? This article uses the prism of victory to view the transformation of the goals, means, and targets of war, and assesses the applicability of the conventional Just War doctrine (through the traditional laws of war) to the modern battlefield. Specifically, the article claims that the military and civilian components of war have grown so intertwined in both the conduct and ending of hostilities that the laws of war, with their emphasis on com- bat, are hard-pressed to offer a normative yardstick for a just modern war. at New York University School of Law on April 30, 2013 No one starts a war – or rather, no one in his senses ought to do so – without first being clear in his mind what he intends to achieve by that war and how he intends to achieve it. Carl von Clausewitz, On War.1 What is our aim? . Victory, victory at all costs, victory in spite of all terror; victory, however long and hard the road may be; for without victory, there is no survival. Winston Churchill, Speeches to Parliament, 1940.2 1 Introduction Much has been written about the new battlefields of the 21st century, specifically in the context of counterinsurgency or counterterrorism operations, humanitarian interventions, and other non-traditional forms of hostilities; much has also been sur- mised about how those new forms of hostilities require expansion, constriction, or adaptation of existing legal doctrines. In this article I offer a particular lens through which to view the changing nature of war and its possible effects on the Just War doctrine. This lens is the concept of * Rita E. Hauser Professor of Human Rights and International Humanitarian Law, Harvard Law School; Berkowitz Fellow, the Tikvah Center, NYU Law School (2010–2011). I am indebted to the participants of the Just and Unjust Wars conference and the Tikvah Fellows for their comments and suggestions. I owe much to James Whitman and his work on victory and pitch battles, and to Azar Gat for his work on the evolution of war and strategy through the ages. Brian Itami and Natalie Lockwood provided excellent research assistance. 1 C. von Clausewitz, On War (trans. and ed. M. Howard and P. Paret, 1989 edn), at 579. 2 Churchill, ‘An Address to the House of Commons’ (13 May 1940), reprinted in D. Cannadine (ed.), Blood, Toil, Tears and Sweat: The Speeches of Winston Churchill (1989), at 149. EJIL (2013), Vol. 24 No. 1, 391–421 doi:10.1093/ejil/cht008 392 EJIL 24 (2013), 391–421 ‘victory’ – and its mirror image, ‘defeat’. If war in its most immediate sense is intended to achieve victory, or at least to avoid defeat, we must know what victory is and what is necessary to achieve it in order to conceive what legal and moral principles best ought to govern it. Following James Whitman’s winning formulation, I ask How do you know who won and What do you win by winning3 – and then use these questions to re-evaluate the criteria for the jus ad bellum and jus in bello as they currently stand. My focus of attention is on victory in wars conducted by liberal democracies. It is highly possible that my arguments are less relevant, both descriptively and prescrip- Downloaded from tively, to wars waged by other parties. Even if so, however, I believe that these argu- ments help explain why wars among non-democratic parties look different from those in which there is at least one liberal-democratic belligerent. With few notable exceptions, there has been little systematic treatment of what vic- 4 tory is, what it looks like, and what it entails for both the victors and vanquished. http://ejil.oxfordjournals.org/ Victory is still frequently imagined in World War II terms: invasion, defeat of armed forces, capitulation of the defeated, capture of the capital and leaders, and installation of a new government. Many earlier wars have taken a similar form, and some recent wars included certain elements that resemble this model. But not all wars require such elements for victory; nor is it that when these elements do present themselves (for instance, in Afghanistan or Iraq), we commonly think about these wars as having been decisively ‘won’. To set the stage, I begin with a short historical survey of how ‘victory’ was under- at New York University School of Law on April 30, 2013 stood and how it exhibited itself traditionally. For the purposes of this article, I employ a value-neutral definition of victory that ties it to the goals of war as they are set at the beginning of the campaign and as they are redefined throughout it. I then proceed to outline what I believe to be the three major developments that have shaped contemporary wars and contemporary conceptions of victory: in the goals of war, the rules of war, and the targets of war. As for the goals of war, the restorative tradition of Just War theory viewed war as legitimate only if it promoted the peace, and peace was largely synonymous with sta- bility. War was thus a mechanism to restore a disturbed status quo, leaving much of the pre-existing state order intact. The goals of contemporary wars, conversely, are often long-term change. Rather than restoring the pre-existing order, eliminating contemporary threats is often perceived as requiring a transformation in the political, social, civic, and economic structures of the territorial state from which the threat had materialized in the first place. The rules of war, especially since 1945, increasingly restricted the means and meth- ods that a party could use in war. A growing concern for the fate of individuals pushed the regime governing the conduct of hostilities (jus in bello) from a state-centred enterprise to a more cosmopolitan regime, in which individual human security is 3 See James Whitman, final Chicago lecture notes (on file with the author). 4 For some recent notable exceptions see P. Bobbitt, Terror and Consent: The Wars of the Twenty-First Century (2008); A. Gat, Victorious and Vulnerable: Why Democracy Won in the 20th Century and How it is Still Imperiled (2009); J.D. Lewis, Nothing Less than Victory: Decisive Wars and the Lessons of History (2010); W.C. Martel, Victory in War: Foundations of Modern Strategy (2011). The Fog of Victory 393 paramount. A new and renewed interest in jus post bellum augmented expectations from victorious parties in terms of obligations they owe to the defeated. Human rights laws have come to be understood as applying in times of war, complementing and expanding on the laws of war. Overall, international law and international morality have made war, in aspiration if not in practice, more difficult to wage. They have also made winning wars more costly for the victors. This is especially true for those parties who, for whichever reason, are committed to the changing norms of the international community. Downloaded from A third development affecting conceptions of victory has to do with the nature of the enemy or the targets of war: traditional wars were conducted against states and, for the most part, the state, its government, and its people were treated as one unified entity. With the disintegration of the state into three distinct entities (government, population, and state) and the greater focus on individuals’ status and conduct, the http://ejil.oxfordjournals.org/ modern enemy is almost never characterized as an enemy ‘state’; instead, it is identified as a non-state actor (insurgent, terrorist, transnational criminal network) or a rogue government (Iraq, Iran, Libya, or North Korea). Consequently, victory now demands to be formulated and achieved in a more nuanced way vis-à-vis different groups within the state, delivering harms or blessings to each according to its respective conduct. The ‘wars over hearts and minds’ essentially view individuals as consumers of competing ideologies and the state as a competitor vendor in the marketplace for ideology. All three developments – in the goals of war, the rules of war, and the targets of at New York University School of Law on April 30, 2013 war – are driven by a mix of strategic, political, moral, and legal forces, and it would be impossible to point at a clear trend of influence. In some cases, what began as sound military strategy found subsequent expression in law, and in others legal norms shaped public expectations about moral conduct, expectations that were subsequently translated into rules of engagement on the battlefield. These developments, taken together, also mean that while the military, civilian, and political dimensions of war and victory were always inextricably intertwined (after all, war is famously the continuation of politics by other means5), they have become even more so in contemporary wars. With wars becoming about long-term change, requiring a mix of benevolence and aggression that is carefully tailored to individual targets, the political and civilian dimensions of victory have outgrown the military one. As the attempts to define what success looks like in Afghanistan or Iraq show, the formulation of victory now requires more long-term, abstract, and complex, less tangible and immediate terms. War, in other words, can no longer be reduced into a military campaign. And yet, the conventional Just War doctrine is still very much oriented to war and victory as phenomena that present themselves on the battlefield.