Law and War

Abstract

Law and War Edited by Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey Stanford University Press, Palo Alto, CA: 2014 248 pages $75.00 [ILLUSTRATION OMITTED] The introduction to Law and War opens with a brief discussion of the targeted killing of Anwar al-Awlaki, a US citizen and suspected al-Qaeda member, who was killed on 30 September 2011 by a CIA-led Predator drone strike in Yemen. It references central figures involved in the debate over the Bush administration's approach to the law of armed conflict, such as Benjamin Wittes and Harold Koh. It is hence not implausible for the reader to assume this edited volume sets out to reassess the relationship between war and law thirteen years into the so-called "War on Terror," as major combat operations in Iraq and Afghanistan have drawn to a close. However, this is not the case or, rather, if this was the aim, the book failed to achieve it. The introduction is followed by five chapters on a variety of topics ranging from biological warfare to war crimes trials. The quality of the individual chapters differs, which is to a certain extent inevitable in an edited volume. A number of chapters, most notably Sarah Sewall's chapter on the limits of law, Gabriella Blum's chapter on the individualization of war and Laura K. Donohue's chapter on pandemic disease and biological warfare, reiterate the basic tenets of the globalization narrative, according to which globalization has led to a rise in the participation of so-called "non-state actors" in armed conflict, which in turn will undermine the law of armed conflict. This view, though oft repeated, is deeply problematic, as it mistakes the exclusionary mechanisms that are internal to the law of armed for external limitations of its applicability. (1) The edited volume is further marred by a number of manifest misrepresentations of authors such as Carl Schmitt: both the introduction and Blum's chapter seem to imply that for Schmitt legal constraints on warfare are irrelevant (7, 55), ostensibly deriving this conclusion from Carl Schmitt's Concept of the Political and his Political Theology, but failing to take into account Schmitt's emphasis on the importance of the law of armed conflict for restraining warfare in the Nomos of the Earth. Sewall includes a largely misleading reference to an article by Adam Roberts on civilian casualties in her chapter (26, note 6) and, when discussing reciprocity in "asymmetric conflicts," does not consider pertinent recent studies on the concept, such as Mark Osiel's seminal book The End of Reciprocity. Samuel Moyn's chapter on Vietnam and the "War on Terror" is quite interesting and innovative. Moyn makes the case that despite large-scale violations of the law of armed conflict, public criticism regarding the US intervention in Vietnam focused on jus ad bellum issues, whereas the critical debate on the "War on Terror" has largely seized upon jus in bello issues. …