Dr. Tanisha Fazal
Today, declarations of war belong to the museum of international history. Most states no longer declare war (e.g. Ukraine, Afghanistan, Korea) and often resist signing peace treaties. This has not always been the case. Until the late 1940s, half of all interstate wars were formally declared and seven out of ten ended with a formal peace treaty.
In Wars of Law, Unintended Consequences in the Regulation of Armed Conflict (Cornell, 2018), Tanisha Fazal, an associate professor of political science at the University of Minnesota, argues that declarations of war and peace treaties are more than legal niceties alone. In fact, they can tell us when wars begin and end; can trigger the laws of war; and can set the legal boundaries of wartime. In her book, she suggests the proliferation of increasingly restrictive laws of war has, ‘in a perverse unintended consequence,’ critically altered the incentives for belligerents to formally declare war or peace.
Fazal argues warring parties have stopped filing formal declarations of war and signing interstate peace treaties in order to create ambiguity as to whether the laws of war apply. An important reason for this development, she claims, is the growing split between the ‘lawmakers’ (humanitarians) and ‘lawtakers’ (soldiers). With the declining percentage of military representatives at lawmaking conferences, the laws of war have become increasingly restrictive on those applying them in times of war.
The main consequence of this proliferation of tougher restrictions for warmaking is, according to Fazal, that states increasingly tend to frame their wars as ‘counterterrorism’. Some states today are both never and always in a state that approximates war. Fazal first encountered this puzzle when she witnessed how after 9/11 US troops invaded Afghanistan without filing a formal declaration of war. With the Bush Administration’s initial decision to reject applying the Geneva Conventions, she found that the laws of war created ‘perverse incentives’ for warring parties to engage in legal gymnastics to limit their obligations in wartime. The rising costs of compliance with ever-higher standards, she claims, have encouraged states to avoid stepping over ‘any bright lines’ that would directly oblige them to comply with the rules of war.