Year Ahead – Thinking Back to Think Ahead
Last year, the Lieber Institute and I published a volume on the future law of armed conflict (LOAC) (the volume’s introduction is available here, and a detailed review, thanks to our friends over at Lawfire, is available here). It grew out of our effort to think about what warfare might look like two decades from now, and how international law might or might not adapt to those changes. One theme of that volume is that many legal questions or issues that may at one level seem entirely novel, on account of new technologies or means of warfare, are really extensions of long-running questions or issues. Another theme of that volume is that power relations among the strong States or groupings of States—and especially conflict, or even the possibility of conflict, directly involving them—will continue to exert strong pulls on LOAC. In thinking about the year ahead and how it reflects those points, it is useful also to think back for context and contrast.
Two decades ago, at the start of 2003, the U.S. government—especially a presidential administration that had come into office focused on great power politics, including managing China’s rise and post-Cold War Russia’s relations with Europe—wrestled unexpectedly with whether and how LOAC applied to transnational terrorist networks. Did the exceptional features of the Global War on Terror merit exceptions to basic rules of, for example, handling detainees?
One decade ago, at the start of 2013, a major thrust of U.S. government policy was ensuring compliance with those basic international rules. As the United States engaged in prolonged counterinsurgency campaigns, a new presidential administration viewed such compliance as not only legally required but strategically beneficial. Much attention remained focused on special LOAC issues of conflicts within or across states, though at the same time greater thinking within government and academia was also paid to LOAC issues arising in so-called “hybrid warfare,” or conflict blending conventional, irregular, cyber, and political operations.
In 2023, great power competition, and the real possibility of major conflict, is now back in U.S. policy focus. A Russian war of aggression rages with a neighbor, and Sino-U.S. tensions are brewing over Taiwan. The LOAC issues of counterterrorism and counterinsurgency campaigns have not gone away. But on matters ranging from military planning to coalition intelligence-sharing or U.S. policy toward the International Criminal Court, China and Russia loom large in how the United States approaches LOAC. And so, once again, among the biggest questions are long-running ones, like how LOAC applies in targeting dual-use infrastructure, how to promote compliance in major war when states (or regime leaders) face existential threats, and how to promote accountability for atrocities committed by politically powerful actors.
Matthew C. Waxman is the Liviu Librescu Professor of Law and the faculty chair of the National Security Law Program at Columbia School of Law.
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