In 1999, Qiao Liang and Wang Xiangsui, both colonels in China's People's Liberation Army, published a slender book called Unrestricted Warfare. The two officers predicted that technological innovations and globalization would change warfare almost beyond recognition. In a world of cyberattacks, asymmetric warfare, and transnational terrorism, they wrote, "the three indispensable 'hardware' elements of any war … soldiers, weapons and a battlefield … have changed so that it is impossible to get a firm grip on them.… [I]s the war god's face still distinct?"
Qiao and Wang published Unrestricted Warfare two years before the 9/11 attacks, and their description of likely changes in warfare was strikingly prescient. In previous columns, I've described some ways these changes challenge our most basic ideas of what a military is, does, and should do, and suggested that failing to fully confront those changes and challenges is a surefire way to end up with a national security strategy that's both incoherent and inefficient.
It's also a surefire way to damage the rule of law.
A lot of ink has been spilled defining the rule of law (some of it by me), but at root it's pretty simple. The rule of law requires that governments follow transparent, universally applicable, and clearly defined laws and procedures. The goal is to prevent the arbitrary exercise of power. When you've got the rule of law, the government can't fine you, lock you up, or kill you on a whim -- it can only do that in accordance with pre-established rules that reflect basic notions of humanity and fairness.
When you don't have the rule of law, life can get unpleasant. Qiao and Wang, for instance, come from a country where the rule of law is only partially realized, and arbitrary detention and executions without due process remain common. Or consider the grievances enumerated in the American Declaration of Independence: Britain's King George III, the colonists complained, deprived them of "the benefits of Trial by Jury," refused "his Assent to Laws for establishing Judiciary powers," transported prisoners "beyond Seas to be tried for pretended offences," and "affected to render the Military independent of and superior to the Civil power."
Bad stuff! Americans fought a long and bloody war over it.
Today, however, the very same changes that challenge our long-held assumptions about the military also challenge the rule of law America once fought so hard to establish both domestically and globally. (The United States was instrumental in the creation of the United Nations and the various international human rights treaties and institutions.) For when the idea of "war" loses definition -- when the war god's face grows indistinct -- we lose any principled basis for deciding when the law of war applies, and when it doesn't.
That sounds like a tedious, technical issue -- the kind of thing usually discussed in long, tedious legal articles -- but it's no mere technicality. The law of war permits a wide range of state-sanctioned behaviors that are considered illegal (and immoral) when the law of war doesn't apply.
Start with the obvious: In war, the willful killing of human beings is permitted, whether the means of killing is a gun, a bomb, or a long-distance drone strike. But just try going out onto Main Street and bashing a random passer-by over the head with a brick until he's dead: When the laws of war don't apply, we call that murder.
The same goes for a wide range of other behaviors. In war, it's OK for a lawful combatant to knowingly inflict injury and death on others (as long as they're enemy combatants or otherwise participating in hostilities, or, if they're ordinary civilians, as long as your actions were consistent with the principles of proportionality and distinction). Ditto destruction of property, and ditto various restrictions on individual liberties. In war, enemy combatants can be detained (with little or no due process) for the duration of the conflict -- not because they have committed crimes, but to keep them from returning to the battlefield. Civilians can also be detained if they pose specific threats.