Power Through Clarity: How Clarifying the Old State-Based Laws Can Reveal the Strategic Power of Law

Abstract:     
As the United States takes on the violent non-state actors, whose arsenals now exceed those of many states, policymakers and leaders should not give up on the “old-fashioned” rules designed for relations among states. When properly clarified, the rules reveal powerful avenues for defending national security against non-state threats like Al Qaeda. While we cannot wage war against non-state actors and remain consistent with international and constitutional law, we can use force against those who take a direct part in hostilities, commit violent attacks outside the jurisdiction of any state, or engage in action sufficiently hostile to warrant immediate measures in individual or unit self-defense. Ultimately, force will not solve many of the great twenty-first century security challenges on its own - for national security must be a national exertion just as international security must be a global one - but, there is great cause to hope that in the next decades, a renewed embrace of the international and constitutional law of war will fully reveal the empowering abilities of both and the law’s ability to enhance the security of all.

Number of Pages in PDF File: 28

Keywords: direct participation in hostilities, war, use of force, self defense, terorrism, detainees, state, non-state actorr, piracy, Somalia, Pancho Villa, Pakistan, Al Qaeda

Accepted Paper Series