How Everything Became War and the Military Became Everything

111 AM. J. INT’L L. 792 (2017)

Cardozo Legal Studies Research Paper No. 533

11 Pages Posted: 26 Jan 2018  

Deborah N. Pearlstein

Benjamin N. Cardozo School of Law

Date Written: January 26, 2018

Abstract

The central claim of “How Everything Became War” – that global technological, political, and legal changes in the past fifty years have collapsed all meaningful distinction between “war” and “peace” – has potentially profound implications for the law of war (also called the law of armed conflict and international humanitarian law). The application of this body of law, much litigated in the United States in the years since 9/11, turns centrally on the expectation that it is legally possible (and normatively wise) to distinguish between circumstances amounting to “armed conflict,” to which a special set of rules applies, and circumstances that do not. Among the differences between the rules, when “armed conflict” exists as a matter of law, deliberate, lethal targeting, without regard to particular self-defensive need or anything more than group membership, is permitted as a first resort. When “armed conflict” does not exist, it is not. If it is really no longer possible to make such distinctions, then the law must quickly set about rethinking when and under what circumstances it should be permissible to kill in the name of state security. Yet while Brooks is certainly right that technology and politics have changed the nature of global security threats, it is far from apparent how those changes render the legal line between war and peace categorically harder to apply than it has ever been. Nor is it possible to discern from Brooks’ analysis how some other standard for killing might be more clear, or more normatively attractive, as a substantive rule of law. One is rather left with the concern, here as with other recent critiques of the law of armed conflict in the modern age, that it is the hard – and still unique – case of the United States post-9/11 that has turned what should be a difficult debate about how to manage such threats as a matter of international security policy into an easier, but ultimately misguided, debate about the future of international security law.

Keywords: international law, terrorism, war, U.S. military, armed conflict, law of war, Geneva Conventions

Suggested Citation

Pearlstein, Deborah N., How Everything Became War and the Military Became Everything (January 26, 2018). 111 AM. J. INT’L L. 792 (2017); Cardozo Legal Studies Research Paper No. 533. Available at SSRN: https://ssrn.com/abstract=3110944

Deborah N. Pearlstein (Contact Author)

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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