The Human Condition and the Laws of War: An Interview with Tanisha Fazal

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. 

Going to college 

Coming from an immigrant family in which debate and education were highly valued, the young Fazal learnt the value of studying international politics at an early age. At home, she spent long nights talking with her father about recent political events — she believes it laid the groundwork for her later academic career. As an undergraduate at Harvard, she majored in social studies and worked as a research assistant for Louise Richardson, the now vice-chancellor at Oxford specializing in security-related affairs. Taken under her wing, Fazal became interested in doing a PhD and was inspired by Richardson as a role model of a female academic who combined academic rigor with a family life. In the end, Fazal married, had two children, received her PhD from Stanford, and published it as State Death, The Politics and Geography of Conquest, Annexation, and Occupation (Princeton, 2007).

Several distinctive features characterize Fazal’s work. As she likes to tell her students (including myself once), it is born out of a drive to solve ‘puzzles’. She is a positivist, drawing on massive datasets, engages with macro-historical questions, taking her across temporal and geographical boundaries, and likes to engage in public debate outside of academia, leading to extensive coverage in the public press. And Fazal writes prose that is both weighty and distinctively international relations in style.

Politics and geography

Cover ‘Wars of Law’

In Fazal’s first book, she analyzed the decline of statehood since the Napoleonic Wars and their resurrection after the Second World War. She highlighted in particular the role of space — of buffer states — in creating irresistible pressures for state intervention. She argued that if a state was situated between two ambitious land-grabbing powers with a history of rivalry, its sovereignty was likely to come to a violent end. This spiral of state decline was broken only after 1945, she claimed, with the onset of a new US-enforced norm against violent conquest and annexation.

It is precisely for this reason that Fazal responded critically to the The Internationalists (Simon & Schuster, 2017), by the legal scholars, Oona Hathaway and Scott Shapiro. In the widely-praised book, the two authors argue that the origins of the norm against interstate conquest can be traced back to 1928 with the signing of the Paris Peace Pact. Even though they admit that the actual decline of interstate war happened only after the Second World War, Hathaway and Shapiro claim that the respective norms behind this critical peace-like development were first established in the interwar years, as most territory taken after 1928 was later returned by the conquering powers. In line with her first book, Fazal counters that the norm only ‘took hold after the Second World War, and not following 1928.’ In her view, we should keep our attention focused on the post-1945 period and, resonating with the argument in The Internationalists, concentrate on the role of the United States in promoting new norms against annexation. 

Fazal’s focus on the postwar role of the United States in promoting new norms against war say as much about her disciplinary background and personal roots as of her wider interest in using historical methods and engaging with scholars interested in international legal history. She speaks highly of Isabel Hull’s comparative history of the laws of war during the First World War and draws inspiration from Martti Koskenniemi’s critical work on how the international legal profession continually reimagines itself by creating ever more jurisprudence. And she sympathizes with David Armitage’s recent intervention suggesting a new historiographical turn towards analyzing long-term macro-historical change.  

Law and history

For her second book on the history of war and law, Fazal faced major methodological challenges whilst conducting her research. In the first place, she had to collect and code vast amounts of data on a whole range of subjects: from peace treaties to legal compliance by non-state actors. Secondly, as a political scientist without a law degree, she had to familiarize herself with the ins and outs of international law in wartime. To meet this challenge, she took several classes at Columbia that were taught by renowned legal scholars, including John Fabian Witt, Samuel Moyn, and Anthea Roberts. In addition to going back to school, she also wished to combine the latest research on civil and interstate wars, a fairly unique approach since most political scientists working on these topics treat them separately. 

It says a lot about Fazal’s ambitious academic agenda, one that brings her back every now and then to the domain of history. One of her main motivations for her most recent book was solving the puzzle of why the laws of war have proliferated so much since 1856, with the signing of the first internationally codified document on maritime warfare. Since the nineteenth century, the discipline has indeed grown exponentially. The Geneva Conventions have become a global lingua franca and there exist today a record number of rules for how to conduct war.

To give a few examples: soldiers are required to avoid causing environmental damage, while civilians have rights in war and cannot be deliberately targeted. In doing so, the colorful group of architects behind these foundational principles changed not only the nature of modern warfare, but also the legal discipline itself. Whereas the laws of war previously privileged the rights of belligerents, they now largely focus on protecting civilians in armed conflict. 

In her new book, Fazal tries to account for this ‘pivot’ from soldiers to civilians as the principal object of the law’s shield of protection. In her view, this radical shift is mainly the consequence of the changing character of lawmakers, of the people who write and adopt treaties. In the late nineteenth century, many drafters were (former) soldiers; in 1949, however, nearly all of them had swapped their military uniforms for civilian ones. The ones making the law were now increasingly different from those who were required to comply with them. The increasing participation of humanitarian organizations has further deepened this divide, she suggests. Its main effect is that the constraints imposed by the laws of war have grown exponentially since 1949, following the signing of the Geneva Conventions and Common Article 3, the first binding international rule for wars taking place within states or empires. 

Secessionism

This effort to ‘humanize’ even intrastate war has largely been dominated by certain states and humanitarian organizations like the International Committee of the Red Cross. Armed non-state actors have played only a small role in it: they are the consumers of law, not their creators. Despite their absence at the official negotiating table, some rebels do have a serious interest in them, more so than we tend to admit nowadays. Indeed, when we think of rebels, we often think of cruel or illegal behavior. Wrong, says Fazal. Secessionists, she shows, are less likely to target civilians than other rebels. As most studies reveal, they show more restraint in war with the aim of gaining the respect of members of the international community. Secessionists also frequently publicize their compliance with the laws of war and castigate governments for targeting civilians in rebel-held areas. 

The fact that those same international actors also tend to prefer negotiated settlements for civil wars (though not for interstate ones) pushes rebels to agree to peace treaties. The percentage of civil wars concluded with such treaties is therefore on the rise. Whereas civil wars are terminated more and more by means of negotiated peace treaties, interstate wars are increasingly prolonged either as frozen conflicts or transformative occupations.

The paradox of the secessionist embrace of the laws of war is that it directly challenges one of the law’s core principles, i.e., the idea of state sovereignty – another unintended consequence of the law’s proliferation in Fazal’s eyes. Equally striking, the secessionist tendency to behave well in war does not necessarily end well for them after hostilities are over. Few secessionists succeed in the end: statehood, not rights, is often their last utopia.

From state death to battle deaths

Over the years Fazal has published widely on macro-historical questions varying from state death, sovereignty, religion, global governance, and battle deaths, to the ‘exaggerated reports of war’s demise,’ to quote a recent article of hers. In it, she challenges Steven Pinker’s statistical framework behind his now (in-)famous analysis stressing the role of Enlightenment rationality in lessening the cycle of violence. In contrast, Fazal argues that the fall in deaths in battle is less a product of ideas than of major advances in military medicine.

Throughout this article she points out how radical improvements in wartime medicine have made soldiers far more likely to survive wartime injuries than in the recent past. Until the mid-twentieth century, the major cause of death in wartime was related to non-battle injuries such as disease. Soldiers today are far better equipped before going to war: they are healthier, better fed, more likely to be vaccinated, and thus less likely to die of wounds. Humanitarian law and the appearance of combat medics at the frontline has strengthened this trend, she argues. 

The most recent catalyst of this trend in the decreasing lethality of war was the invention of the helicopter. ‘If a British soldier fighting during the Napoleonic Wars [and before the Geneva Convention] had been lucky enough to avoid contracting typhus,’ writes Fazal, ‘he would have nevertheless faced good odds of experiencing a gunshot wound given the limited protection of his dress uniform…If wounded, he might have lain on the battlefield for days.’ In contrast, a wounded US soldier fighting in today’s Iraq would already have been treated by a doctor during the helicopter flight to a nearby field hospital, which is usually less than an hour away. The soldier’s chances of survival have improved dramatically over the last few decades. In some ways, total war in our own time is less lethal than its modern predecessor.

Even though Fazal has only just published her new book, she is already thinking about her new book project on the paradox of the decreasing lethality and increasing costliness of war. ‘Historically, the ratio of those wounded to those killed was three to one. That was true for centuries, if not millennia. In recent US wars this ratio has changed dramatically. For every US soldier killed in Iraq, ten came home wounded or disabled. Combined with increased veterans’ benefits, this has created a dramatic increase in the financial costs of war. As no elected politician can reduce spending on veterans’ benefits in today’s political climate, there is little reason to assume that this trend will stop anytime soon. So if we think of the decision to go to war as a cost-benefit analysis, we need to have a more accurate sense of the costs.’

Humanizing or ending war? 

Fazal’s work on the history of war and law reveals another crucial detail: the political nature of the rules connecting these two fields. While many describe the laws of war as apolitical, they actually serve different political agendas and are also understood differently by warring parties. Since 9/11, with the onset of the ‘forever war,’ critics of the laws of war have argued that they require a new agenda. For them, the focus on humanizing war privileges less pressing moral concerns over far more crucial ones, and it ‘risks making the strategy the goal, converting means into ends,’ to quote one of Fazal’s former colleagues, Samuel Moyn. Advocates of the laws of war struggle to humanize war rather than ending it — a political agenda with clear limitations in a fight for abolishing ‘forever war’. 

At the end of the interview I ask Fazal to solve this final puzzle: should we humanize war or fight for peace? She gives a remarkably outspoken answer, revealing her profound belief in one project over the other. ‘As a scholar of international relations I am not particularly optimistic about belligerents or international law stopping war. While I do not wish to make the argument that war is part of the human condition, I see few reasons to assume that war is ending anytime soon. As someone who cares deeply about minimizing the human costs of war, I feel we can achieve much more progress by focusing on the laws of war.’

1 comment

  1. Reed Bonadonna - Reply

    I’m interested in the gap between lawmakers and lawtakers. In a sense, this is an aspect of the civ-mil divide that requires constant effort on both sides to close or diminish. I’ll also say that the uniformed presence in lawmaking circles is more likely to consist of military lawyers than of combat arms officers or enlisted personnel with experience in applying the laws of war on the ground. Some of these will say that ROE, for example, can cause unnecessary casualties, impede the accomplishment of the mission, and contribute to combat stress and PTS. Theirs is not the last word, but it should be part of the conversation.

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