Law, War, and Four Modes of Conflict
Oregon Review of International Law, vol. 20, p. 531 (2019)
51 Pages Posted: 8 May 2018 Last revised: 14 Oct 2019
Date Written: April 13, 2018
The Internationalists, by Oona A. Hathaway and Scott J. Shapiro, argues that the outlawing of war as an instrument of state policy in the Kellogg-Briand Pact of 1928 “was among the most transformative events in human history, one that has, ultimately, made our world far more peaceful.”
The authors’ evidence for this provocative thesis is ultimately unpersuasive. First, changes that they attribute to the Pact began before its creation, as illustrated, for example, by the ban on debt-collection wars in the second convention of the Hague Conventions of 1907. Second, their own historical data on wars of conquest suggests that the year 1928 was not a turning point between eras, even when viewed in light of the post-World War II reversals of recent conquests. Rather, the evidence is more consistent with the Allies generally reversing the conquests of the Axis powers, and preserving their own conquests, regardless of whether any conquest took place before or after 1928. Third, their interpretation of legal history does not establish that the Kellogg-Briand Pact played a causally significant role in the creation of the postwar legal order.
But The Internationalists offers much more than its central thesis, including a fruitful exploration of the idea of law and war as alternative forms of conflict resolution. In particular, the authors present a theory of “outcasting” as a mechanism for enforcing law even where there is no single, centralized government. This review generalizes from the authors’ argument to propose a four-mode model of conflict and conflict resolution. Against the widespread assumption of a binary opposition between anarchy and the state, the four-mode model draws attention to two legal-institutional options that lie between pure anarchy and the centralized authority of an idealized state.
Where the parties to a conflict share a law, but not a judge or executive, the characteristic method of enforcing the law will be tit-for-tat retaliation against violations. Armed conflict in this setting will tend to resemble a feud. Where the parties to a conflict share a law and a judge, but not an executive, community responsibility for enforcing the law, such as through outcasting, becomes more feasible. The review offers brief historical illustrations and considerations of the likely shapes of conflict in each of the four modes.
Keywords: international humanitarian law, law of armed conflict, laws of war, kellogg-briand pact, conflict resolution, anarchy, outcasting
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