Strategy and International Law

“If Thucydides, Sun-tzu, and Clausewitz did not say it, it probably is not worth saying.”
—Colin Gray[1]

The perception of international law in the classic trilogy of strategic studies ranges along a spectrum. It is either ignored entirely or considered irrelevant in the instances where it is acknowledged. Sun Tzu’s text contains no references to the law of nations. Thucydides’ work is replete with references to the law beyond merely the municipal context. However, its utility for understanding the significance of the law of nations is constrained by the limited geographical area within which such a conception of the law of nations held sway.[2] The sole reference by Clausewitz to international law states, “Attached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it.”[3]

Every single one of the three grand texts predated the establishment of a truly universal international legal regime. This fact explains why the classical trilogy of strategic studies adopt the views they do about international law. This is also the reason why no strategist should allow their appreciation of international law and its significance for policy to be informed solely by the classical trilogy of strategic studies.

Some strategists have claimed there has not yet been a “benign transformation in human security affairs.”[5] However, this assertion is only partially correct. It is correct insofar as it recognizes that the fundamental forces which animate human behavior today are the same forces that had been identified by Thucydides millenia ago—fear, honor, and interest. However, it is incorrect in conceptualizing anarchy as constituting a trans-historical fact which continues to lie at the heart of all inter-state interactions.[6]

The UN Charter being signed on 26 June 1945. (Yould/UN Photo)

The revolutionary change of the paradigm governing the waging of war is but one vital illustration of the transformation that has been affected by international law in human security affairs. The era of the Napoleonic wars constituting the backdrop for Clausewitz’s work was one where the law of nations exercised minimal influence over the conduct of war. This was a natural corollary of the belief in the “extra legality” of war, whereby the right to resort to the “unfettered use of force” was considered an attribute of statehood itself.[7] However, under the United Nations Charter, there has been a clear transition from a regime of jus ad bellum to jus contra bellum. While this transition may have been imperfect, the shift represented an unprecedented development in the annals of human history.

The cyclical revival of views disputing the existence or efficacy of international law is not of any particular utility to field commanders who encounter the very real constraints of international humanitarian law during operations.[8] It is not of any particular help to law enforcement officials at sea, where abstract boundaries dictate the nature and range of actions to which they may resort. Nor are they of much aid to transnational corporations seeking to recover investments expropriated by a foreign state. Transnational corporations, irrespective of their size or state of nationality, can no longer automatically rely upon their host state for diplomatic protection. In the era prior to the entry into force of the United Nations Charter, the concept of diplomatic protection could manifest itself in the form of gunboat diplomacy. The list of such examples is as lengthy as it is diverse. What connects all of them is the post-charter transformation in human security affairs vis-à-vis international law generally and specifically, in relation to the prohibition of the inter-state use of force.

At first sight, strategists and international lawyers may appear to be strange bedfellows. The perception of international law as something inconsequential in a world of power and force is a common trait amongst strategists whose views on the subject are informed primarily by the classical trilogy. Similarly, amongst international lawyers, the orthodox perception of the subject matter of strategists is that of a body of knowledge that is somewhat crude and not quite respectable. The end result is the compartmentalization of knowledge and a world plagued by problems made worse for the want of shared ideas.[9] The most recognizable instance of this phenomenon is in thinking about international law in terms of the exercise of power, or the lack of this thinking.

Permanent headquarters of the International Criminal Court at The Hague. (Rick Bajornas/UN Photo)

The primary reason for the frigidity in exchanges between the discipline of strategic studies and international law is attributable to the tendency of strategic studies scholars to think about power in terms favored by a particular strand of the realist tradition. This is accentuated by the tendency of the non-realist schools of thought to distance themselves from power considerations and the consignment of international law to one of these traditions.[10] This is a problematic way of thinking about the law for reasons captured most pithily by Yasuaki Onuma: “Law controls power, but power violates law. Power produces law, and law grounds power.”[11] A clear example of this phenomenon can be found in the setup of the regime governing the maintenance of international peace and security, which is centered around the prohibition of the unilateral use of force and the collective security system helmed by the United Nations Security Council. In creating this regime, international law offered the victors of World War Two a tool to ensure pacification and stabilization. However, the dominant powers could enjoy these benefits only at the cost of having significant constraints placed upon their own freedom of action as well.[12]

Thinking about strategy and international law in terms of power is essential given that the realm of strategy is ultimately concerned with “the art of creating power.”[13] Strategy is about more than identifying ends, ways, and means. The alignment of resources with goals is undoubtedly a part of the strategic planning process, but this is not the strategy itself. Thinking about strategy in terms of creating power, i.e., the extent to which one affects others more than they affect oneself, is a better approach since this switches the focus from merely applying means to an end to encouraging thinking about how to cause a preferred outcome.[14]

The concept of power can be better understood through the references made by Joseph S. Nye to the three faces of power: command power; the power to control the agenda of actions; and the power to create and shape basic beliefs, perceptions, and preferences.[15] Alternately, these could be understood as the visible, hidden, and invisible faces of power.[16] The three classics of strategy contain masterful insights about the exercise of command power. However, they are mostly concerned with a particularly narrow form of command power, namely those instances where the use of force crosses the threshold of armed conflict—war.

Even within this subset, the utility of their insights is limited to issues concerned with the deployment and the employment of military force. Issues relating to the creation of military force get short shrift from all of them. The limitations inherent in the classical trilogy of strategic studies become glaringly apparent when one considers the degree to which international law extensively influences each of these activities in contemporary conditions. These influences can be clearly ascertained by perusing the contents of international humanitarian law, human rights law, criminal law, and environmental law, which impose obligations that act as very real considerations with respect to the permissible means and methods of warfare that belligerents may resort.

If these shortcomings seem acutely visible in relation to the first face of power, they become positively glaring with respect to the second and the third faces of power. With respect to these, the classical trilogy of strategic studies has very little to contribute at all. The reasons for this are understandable given their historical context. All three pre-date the era of universal international law. This presents a problem for the contemporary strategist given that the exercise of command power is inextricably intertwined with the other two faces of power—the ability to set agendas and the ability to shape basic beliefs and preferences.

And it is the discipline of international law that assumes center-stage with respect to the second and third faces of power. Prominent examples include the rights of neutral states, which must be respected during times of armed conflict, and the strict delineation of the permissible areas where hostilities may be engaged in. A subtler example relates to the continuation of non-hostile relations between belligerent states. Today, there is no automatic presumption that the outbreak of hostilities will lead to the suspension of all non-hostile relations including trade, diplomatic, or treaty relations between the belligerents. Additionally, there exist manifold examples relating to the central role played by international law in structuring and enabling the work of multilateral organizations, whose proceedings have a direct outcome on the permissible type and range of actions to which belligerents may resort.

War is a continuation of politics with, rather than by, other means. This necessitates the weighing of diplomatic, economic, and informational implements on a level footing with that of armed force.[17] All these are spheres of activity deeply influenced and structured by international law today. Thinking about the law in instrumental terms can be an unsettling idea. However, strategists should not preclude themselves from thinking about international law as an instrument that can be used to further political purposes.

Indeed, lawyers themselves have long recognized this reality. Law itself is the product of a political activity that has been fixed so as to organize and limit other kinds of political activity.[18] From an instrumental perspective, international law exists so as to realize certain objectives, to create certain outcomes. But from a formalist perspective, international law functions as something that establishes formal standards of behavior that must be adhered to.[19] Consequently, all future dialogue between the field of strategic studies and international law should be conducted bearing in mind two points. First, there is a need to remain cognizant of the duality inherent in international law, which causes it to be used as “both an instrument of power and an obstacle to its exercise.”[20] Second, the assumption that “law is the opposite of violence, and violence the consequence of the absence of law” must always be thoroughly interrogated rather than being treated as a given. Not only can international law be the cause for violence, it can be a form of violence by itself as well.[21]

Himanil Raina is a graduate of the NALSAR University of Law (India) and is currently pursuing his studies in International Law at the Graduate Institute of International and Development Studies, Geneva.

This article appeared originally at Strategy Bridge.

[1] Colin Gray, Fighting Talk: Forty Maxims on War, Peace, and Strategy, (Westport, CT: Praeger Security International, 2007), 58, 60.

[2] Arthur M. Eckstein, “Thucydides, International Law, and International Anarchy” in The Oxford Handbook of Thucydides, eds. by Ryan K. Balot, Sara Forsdyke and Edith Foster (New York: Oxford University Press, 2017), 491; Max Planck Encyclopaedia of Public International Law, s.v. “History of International Law, Ancient Times to 1648,” https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e716 (accessed July 2, 2020).

[3] Carl von Clausewitz, On War, eds. and trans. Michael Howard and Peter Paret (Princeton: Princeton University Press, 1989), 75.

[4] Immanuel Wallerstein, The Modern World-System I: Capitalist Agriculture and the Origins of the European World Economy in the Sixteenth Century, (New York: Academic Press, 1974) 17; Yasuaki Onuma, “When was the Law of International Society Born? – An Inquiry of the History of International Law from an Intercivilizational Perspective.” Journal of the History of International Law 2 (2000): 7; Gerrit W. Wong, The Standard of ‘Civilization’ in International Society, (Oxford University Press, 1984); Stephen C. Neff, “A Short History of International Law” in International Law, 4th ed., ed.Malcolm D. Evans (New York: Oxford University Press, 2014), 4: For the greater part of recorded history, there has existed not one but rather multiple international systems (each being regionally focused). ‘Ancient international law’, the Islamocentric siyar, the Sinocentric tribute system or even the Eurocentric law of nations were little more than regional normative systems. Europe’s subordination, domination and exploitation of the rest of the world (from the 15th century onwards) as part of its colonial expansion resulted in the creation of, first, a universal international system and then a universal international society. It is only by the end of the 19th century that European international law achieved the goal of integrating the world at large under a ‘universal international law.

[5] Gray, Fighting Talk, 122.

[6] Ayse Zarakol, “Why Hierarchy” in Hierarchies in World Politics, ed. by Ayse Zarakol (Cambridge: Cambridge University Press, 2017), 270-272.

[7] Antonia Cassese, “States: Rise and Decline of the Primary Subjects of the International Community” in The Oxford Handbook of the History of International Law, ed. by Bardo Fassbender and Anne Peters (1st Edition: Oxford University Press, 2012), 55; Brownlie’s Principles of Public International Law, ed. by James R. Crawford (9th Edition: Oxford University Press, 2019), 717; Yoram Dinstein, War Aggression and Self Defence, (5th Edition: Cambridge University Press, 2012), 75-77.

[8] Oona Hathaway and Scott J. Shapiro, “What Realists Don’t Understand about International Law,” Foreign Policy, Oct 9, 2017, https://foreignpolicy.com/2017/10/09/what-realists-dont-understand-about-law/ (accessed 25 Oct 2020).

[9] Ken Booth, Law Force and Diplomacy (London: George, Allen and Unwin, 1985), 5.

[10] Michael Barnett and Raymond Duvall, “Power in International Politics,” International Organization 59, no. 1 (Winter 2005): 40.

[11] Yasuaki Onuma, “International Law and Power in the Multipolar and Multicivilizational World of the Twenty-first Century,” 153 in Legality and Legitimacy in Global Affairs (Ed. Richard Falk, Mark Juergensmeyer and Vesselin Popovski) (Oxford University Press: 2012).

[12] Nico Krisch, “International Law in Times of Hegemony: Unequal Powers and the Shaping of the International Legal Order,” The European Journal of International Law 16, no. 3 (2005): 371.

[13] Lawrence Freedman, Strategy: A History, (New York: Oxford University Press, 2013), xii.

[14] Jeffrey W. Meiser, “Are Our Strategic Models Flawed? Ends + Ways + Means = (Bad) Strategy.” Parmeters 46, no. 4 (Winter, 2016-2017): 83-84, 86; Kenneth N. Waltz, Theory of International  Politics, (Addison Wesley, 1979), 192.

[15} Joseph S. Nye Jr, The Future of Power, (Public Affairs: 2011), 14.

[16] John Gaventa, ‘Levels, spaces & forms of Power – Analysing opportunities for change,’ in Power in World Politics, ed. Felix Berenskoetter & MJ Williams (Routledge: 2007), 204-224.

[17] James R Holmes, “Everything you know about Clausewitz is wrong,” The Diplomat, Nov 12, 2014, https://thediplomat.com/2014/11/everything-you-know-about-clausewitz-is-wrong/ (accessed 26 Nov  2020).

[18] Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking, (Oxford University Press: 2016), 52, 136.

[19] Martti Koskenniemi, “What is International Law For” in International Law, ed. by Malcolm D. Evans (4th Edition: Oxford University Press, 2014), 40.

[20] Krisch, International Law in times of Hegemony, 371.

[21] Tilman Altwicker and Oliver Diggelmann, “How is Progress Constructed in International Legal Scholarship,” The European Journal of International Law 25, no. 2 (2014), 439-441.