For my students…
Modern International Law is, essentially, a right of war and peace – a jus belli ac pacis, as it was called by one of its founding fathers, Hugo Grotius. The fact that International Law includes both war and peace means that the terms of this relationship (war-peace) are definable, i.e. can be (de)limited. Perhaps the most important principle that supports the entire international legal system is that of “limitation.” War is open conflict. Peace is the absence of war. Between these two polar notions, tertium non datur [“no third (possibility) is given”].
The limitation in question is not merely conceptual, but refers to the spatial, temporal and physical features of a conflict. International Law, in fact, circumscribes both the spatial range (i.e. zones of war and zones of peace) and the temporal limits (wartime and peacetime, i.e. declaration, truce and armistice); it discriminates between legitimate agents and targets (i.e. belligerents and neutral forces, civilians and military) and lawful and unlawful weapons. The principle of limitation is, therefore, an attempt to humanize the demonic face of power. This, at least, was its classical function.
Today the situation is very different. The War on Terror is, as its architect George W. Bush claimed, a permanent global war. It is global, i.e. without spatial and territorial limits. It is permanent, i.e. without temporal limitations, determined by a subjectivity that is as much abstract as disquieting: Terror. Behind this “limitlessness” lies the danger of normalizing violence and brutality, of transforming war – from an exceptional procedure – into a global police action (as Bush put it, the war will not end until “every terrorist group of global reach has been found, stopped and defeated”).[i]
The key to understanding this epochal change is provided by the “slippery concepts” that inform the political architecture of the War on Terror. Let us consider, by way of example, the notion of “areas of active hostilities” (AAH). Coined by the Obama administration to deal with the impossibility of declaring war against an “absolute, global and borderless” enemy (Terror aka al-Qaeda), this concept identifies those areas – within states but which are militarized against violent non-state groups – where U.S. troops could operate by reference to International Humanitarian Law (i.e. the Law of Armed Conflict). But where there is light – as the adage goes – there must be shadow. In effect, this “white area” of undeclared war also delimits its negative, “dark side”: i.e. zones where, under special circumstances, it is possible – according to the Presidential Policy Guidance document (PPG) released in 2013 – “to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities.” In other words, there are two areas of hostilities here: 1. areas of open but undeclared conflict (e.g., at the time, Afghanistan, Iraq and Syria); and 2. the world outside these areas where, in some circumstances, it is still possible to use (lethal) force.
What at first sight seemed to be a legal and political limitation is nothing but the planetary projection of American power and force. Indeed, the category of “area of active hostilities” is – in its twofold register of ambiguity (internal and external) – a policing tool. As stated in the PPG document: “The most important policy consideration, particularly when the United States contemplates using lethal force, is whether our actions protect American lives.” If there is such an imperative, the use of force is potentially possible everywhere. As a matter of fact, the mobile and porous borders of these spaces of enmity can be easily expanded and redrawn, depending on the political needs of the moment, as happened to Libya (sucked into the area of hostilities in 2016 to allow airstrikes against ISIS in Sirte) and Somalia (which was recently included in the “hostile zone” by President Trump).
The vagueness and conceptual abstraction of this notion (AAH) conceals (not even subtly) the bad conscience of its formulation. As a former Obama administration official has declared regarding the procedure for determining these areas, “it’s one of those things where you know it when you see it.”[ii] As if to say that a new space of enmity is created or extended when the enemy “appears” in the eyes or mind of the U.S. government. This means that the new geographical and temporal limitations of hostilities are no longer determined by International Law, but rather by the White House. Indeed, it is the White House that decides (sometimes with the consent of foreign governments, but never with the consent of the local population) where and when to open, expand and redesign these “killing spaces” inside foreign territories (“killing areas or spaces” is the most fitting definition for these “exceptional locations” in which drone strikes put enemies to death, without allowing reciprocity and the possibility of self-defence).
It looks like the Orwellian nightmare of the world as a battlefield has come true. This planetary projection of force, which knows no limits, undermines one of the last pillars that sustained the architecture of modern International Law: the principle of reciprocity. The end of reciprocity, already de facto sanctioned by the intrinsic asymmetry of the conflict, implies the impossibility of establishing neutral spaces (between belligerents or parties) and, in the end, of setting any limits whatsoever. For when the enemy is defined (from both sides) as hors-la-loi – i.e. as “unlawful” – there can no longer be any legal and political limitation in place (and it is all too easy to mention the crimes committed at Guantanamo and Abu Ghraib or the recent attacks in London and Paris as symptoms of this involution).
There is nothing more dangerous – the German jurist Carl Schmitt once wrote – than to originate enmity from war, instead of war from enmity. Violence, in fact, knows no justice, but only justification. The “ethics of war” was based on the awareness of the intrinsic injustice of force, which could only be used as an extrema ratio [“last possible course of action”]. The global war is, on the contrary, the dream – or rather the nightmare – of total justice. It is the quasi-divine desire to make the “bad guys”, wherever they are, transparent in the eyes of the punishing God (a god who is never at fault). The War on Terror is, by definition, a form of “divine violence” that transforms combat into punishment and execution (Obama’s “targeted killings”), for the enemy can only be less-than-human in the hands of the man-God and his form of justice.
Nonetheless, the birth of modern International Law was made possible precisely through the elimination of the concept of hostes perpetui (“eternal enemies”) and the juridical creation of adversaries who considered themselves as legally equal, i.e. as rivals. This limitation is achievable only if one renounces the spiritualization of conflict and the moral diminution of the enemy; when, in short, the concept of enmity is entrusted to law and not to force. In the words of the great jurist Alberico Gentili, written at the dawn of modern international law, “it was (and is) not nature that distinguished between friends and enemies, because the distinction depends on customs […] We are, by nature, all related by blood.”
Humanization of violence means “equality before death”, “reciprocity in fighting”, “the putting-into-form of our destiny.” As Spinoza argues in his famous letter to Jarig Jelles, omnis determinatio est negatio [“every determination is negation”]. Our form-of-life is determined by the positive negation of our enemy. This negation is dialectical because the opposite term is denied and not annihilated. Destroying the figure of the enemy – of the one who puts-us-into-form – makes us lose our own self-consciousness. Thus the moral and physical destruction of the enemy leads our consciousness to self-annihilation.
And it is disturbing to see how the abyss opened up by the new conception of violence and enmity ends up swallowing itself. The killing of Micah Johnson by Dallas police by a teleguided-exploding robot is a symptom of this evolution. Enmity thus becomes an exceptional space, a political maelstrom that can suck down anyone defined as “public enemy.” Omnis determinatio est exstinctio [“every determination is annihilation”]. Today, the new forms of war seek to destroy the Other and her figure from the utopian vantage point of a future pacified by the eye of the God-drone. And one wonders what will become of our moral and juridical conscience once the “last terrorist” has been killed.