The Legal Transformation of War

The morality and legitimacy of the practices of war – or, at least, the use of military force – are undergoing a fundamental transformation. This transformation is not yet directly or fully reflected in the formal laws of war, but as these changes embed themselves in the practices of states, especially dominant states, in practice they might eventually come to be embodied in the legal frameworks that regulate the use of force. The fundamental transformation is this: Whereas the traditional practices and laws of war defined “the enemy” in terms of categorical, group-based judgments that turned on status – a person was an enemy not because of any specific actions he himself engaged in, but because he was a member of an opposing army – we are now moving toward a world that implicitly or explicitly requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is considered justified, at least as a moral and political matter. This shift applies not to any one particular type of military force, such as lethal force, but to all exertions of military power over enemies, including the ways in which they are captured, detained, incapacitated, or tried.

To a limited but significant extent thus far, this transformation is reflected in the domestic law of some countries. Some of these issues have been addressed, for example, in evolving US constitutional jurisprudence resulting from recent decisions of the United States Supreme Court, as well in interpretations of international law by different domestic courts, including the Israeli Supreme Court. However, this quiet, subtle, and inadequately appreciated transformation has been taking place far more as a matter of slowly accepted practices than as settled legal development. The process of legal transformation in turn shapes arguments about the proper uses of military force in the context of fighting terrorism, yielding a debate that often comes across as polarized or confused or simply unable to engage with diverse positions, however reasonable. Precisely because we are in the midst of this transformation, we do not have clear prior legal frameworks, either domestically or internationally, to draw on to provide determinate legal guidance for addressing the transformed and transforming nature of modern warfare.