For that reason and many others, im so happy to bring to you today a panel on the question of whether law can constrain more war. Perhaps, that is the area we think if you have the least affect and what do historical examples help us think about that. We have four brilliant scholars and writers here today. They have all written important books that are relevant to the topic and two of them have served within government as well as during the george w. Bush administration and Obama Administration. Im going to do quick, very short intros. I will ask them a few questions and then we will turn it over to you. When we go to q a, please go to the microphone because we have this great crew from cspan here today and we really need to help them out. How first speaker starting at the end of the table is john. It is wonderful to see you here. John is the alan h duffy president at yale law school. It was awarded the 2013 prize and was the finalist for a pulitzer prize. It also won the American Bar Association silver scandal lord silver scandal which is about the foundation that helped finance the efforts that eventually became brown versus board of education. Next up will be helen come stellnstella. Helens book, the image before the weapon, was awarded the Sussex International theory prize. She will be a council of Foreign Relations fellow with the International Committee of the red cross. Then we will hear from jack goldsmith. He is the henry the senior fellow with the Hoover Institution and cofounder of law fair which it used to be this obscure law blog and now it is all the sudden at the center of american politics. During the george w. Bush administration, he served as assistant attorney general for the office of Legal Assistance from 2003 2 2004. In model of how things work, especially with regard to all within a president ial administration. Finally, rosa brooks someone who writes with as much with an brilliance. It is an amazing culmination. You may have read her columns elsewhere. Up now is john with. [applause] for thinking about law and worn four and relations. The question is can law restrain war . Lets just say sometimes it can and does, though all too often and usually not. A difficulty with starting with a constrain were question is im not sure there is a reason to begin with an idea that the law even aims to constrain war. Unless you are a pacifist, you think that is a good thing at least sometimes. And better question for crowd like this one would be whether the law is variable for the study. The way to pursue this question would be asked how to ask. Economic models, political organizations, even blind chance. We could list skeptics on into the present. And read reports that the whole episode amused greatly and says we are not going to pull out of our pockets a little booklet and read over the rules. The skepticism has a parallel into realism of historical literature. The historians version of what i want to call that the and ask in the compliance model the historian identifies rules and imagines the reason for being is to make the world conform to their model and then holds those and evaluate their effects in the world. It begins with an overestimate and then it proposes the law will function, dispensing to make the worlds work its vision. Moreover, disillusionment looks like the opposite of the compliance model, but it is actually its twin. The compliance model turns out to be the first stop in a shuttle that very quickly arise arrives. The compliance model and the scrap of paper idea are flip sides of the same mistake. They imagine the influence of law and or is universal when in fact it is multifarious. What i mean by these things . Multifarious is just a five dollar way of saying there are many ways that law shapes war. Here to to quick examples to get us started. A favorite of mine drawing from the history of american Foreign Relations is the same as trent affair. This would bring in outrage United Kingdom into the civil war that even if the u. S. Had the authority to had a procedural obligation to bring the trent into an american port to have the seizure confirmed by federal court. Historians have treated this legal controversy as kind of a farce. This is a real accomplishment to participants in the moment in a situation that one recent historian has called lincolns cuban missile crisis. There are lots of examples. I think of rules governing rules of four rules of four rules of war. One example comes to my mind is the lead lieber code issue during the american civil war. This is a founding moment in the humanitarian law tradition. The south refused to exchange africanamericans captured. Francis lieber takes the position of the law of nations and knows the sanction of color in the union insists that black prisoners be included. Humanitarian catastrophe in ensues. The lawyers making it that much easier for the union to stick to the position. These two examples i hope dispel the compliance model and its scrap of paper to encourage the law functions as a social formation this one is different, this effect, because it is distinctive to the internal structure of the law. It involves the ways in which law operate in paradigms. It starts with a compliance model and its significance suggests the case might seem like conservation of skepticism. Davis is after all amnesty after committing treason against the United States, but once again, the compliance model is misleading. The prosecution of davis is a story about what follows from and what is entailed the logic of a legal regime or paradigm whose legal structure imparts meaning to events. Structure and logic are organized around a distinctive, internal normative structure. It has obligations of generality, consistency, prospectively, and that internal meaning ands significance to social action. In davis case, the consequence of those basic features of law are apparent after appomattox. The union had treated the conflict, at least in principle part as a war. The trent affair and lieber code presupposed the conflict was a war. As aing the conflict warhead entailment because the obligation of june around the the, consistency, rationality, and prospectively so required these obligations and raised the cost of reversing portions of the conflict and treating the south and leadership as merely rebels subject to treason prosecution. It is no rebuttal to this to say that letting davis go was dictated by the imperatives of reintegrating postwar south or even to argue that Andrew Johnson was predisposed to amnesty davis because those imperatives and johnsons disposition were themselves conditioned by the expectations the laws of war had produced during the previous four years. Nor is it a rebuff, i think, to the paradigm story to observe that the north could have prosecuted davis, law of war be dammed, and very nearly did, indicting him not once but twice. The paradigm account insist simply that committing the u. S. To a particular legal approach, a war approach, had logical entailment that raised the cost of certain lives, lowered the cost of others come it and helped shape the meaning of all of the. Account ism pervasive, i think, because the ways in which we understand warfare are themselves shaped by the law. The law of war, not to mention the law out of work, is not exogenous to the goals of powerful actors. It is embedded in those goals and partially produced by those goals. It constitutes and embodies them. Consider for white confederate leaders consider the option of euro low warfare. It might have been impossible to overcome. Consider what general washington thought it was important to fight and survive set piece battles. These were visions that were shaped by the structure of europeans dates and embodied into the cottonelle converse and the confederacy. I suspect we may hear more about that from rosa and check. That is what we are saying from noninternational conflict. Old paradigms being put to work in new settings. The answer medalist account is about finding devices that have meaning because of the system that the law creates. His lever is pulled in one part of the system and reverberate in another part of the system so, can law restraint or. Law constitutes systems of meaning with claims of legitimacy and authority that shape any number of ways. These systems also do many other things than constrain more. This i think is why the field seems to me rich reach historical inquiry and what i hope to see more is said is that dylan the significance. Thank you very much. Thanks. [applause] thank you so much. Im truly honored and humbled to be here today on the company of other scholars whose work has influenced my own. I wanted to warn you that not especially as a historian, although i do try to be a diligent student between the history and the law. Exercises and thinking are deeply informed by the actuality of keeping this in mind, i have the intent of such exercises ofto subject the quality distinction, category, and arguments in the present. Keeping this in mind, i have attempted to make three contributions to the study of the loss of war. First, the laws of war can be analyzed as an archive and with special regard to the routers rubrics of rules. Generated in and by imperial context. After all, it has been well established that the histories of the laws of war are inextricably intertwined with histories of imperialism and colonization. Second, i have argued that paying attention to attempts to define categories such as the direct participation of hostilities, and as i will talk about in a minute, superfluous injury and unnecessary suffering. Paying attention to define and regulate these categories illuminates the ambiguity of the law and also brings to the four the shifting notions of power and authority to define the law itself. This brings me to my third contribution. These exercises and thinking offer resources to apprehend and judge present moment. Collectively, this is of specific importance to the study of the laws of war. The pending as it does against depending as it does upon the transmission of concepts languages and norms , across time and space. The past, far from being gone is constantly being retrieved as a source of rationalization of present obligation as john , already mentioned. More broadly, to fully comprehend the relation restraint we must first trace from which the laws of war were reproduced. After all, the evaluation of the laws of war be at in terms of restraint or otherwise is predicated upon a prior agreement for purpose in utility. And a simple focus on restraint runs the risk of silently assuming that the political beenion has already solved. For example, on the one hand, if we accept that International Humanitarian law redefines violence and privileges, channels, structures, legitimate, and facilitates acts of war, restraint may be understood quite differently than if on the other hand, we believe the laws of war are justified and grounded in practicality. Or, further, that the laws of war reflect compelling considerations of the survival of civilization and the sanctity f individual human beings. My point is therefore simple. Our definition of restraint is dependent on particular construction or definition of what it means among other things to be a legitimate combatant or an illegitimate or unlawful combatant, if that be the indian wars of the 19th century or the current war on terror. Definitions are also dependent on our very notions of war itself. As i demonstrated in my previous work, the laws of war and not simply regulated standing outside or simply controlling projected. Re also example, the prohibition against unnecessary suffering and superfluous injury. Againstibition superfluous injury and unnecessary suffering was 1977. Ed in article 35 states it is prohibited to employ weapons, projectiles, and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Article 35 details the general injunction codified in the 1975 hague convention, namely that is notht of belligerence unlimited, meaning there is a limit on the exercise of force in the pursuit of victory. According to commentary, it is an absolute constraint. One way of understanding it is as a prohibition on the use of force in a way that is more than enough, yet as many have discussed, the exact or precise meanings of superfluous injury and unnecessary suffering are among the most unclear and controversial rules of warfare. The lack of consensus over the precise meaning of these terms and a desire to more fully defined their conscience took on a special importance during the four years of diplomatic conferences which led to the 1977 protocols. These conferences took place from 1974 to 1977 at the time of conflicts in southeast asia, africa, among others, and following on earlier wars. These conferences were directly informed by the experiences of these wars and a diverse and contentious transnational culture of third world liberation. Of natural, war liberation and decolonization were internal wars, and the manner in which they were fought brought to the for the startling lack of laws of war pertaining directly to their conduct. Wileys of chemical, biological, incendiary, and Nuclear Weapons in the wars that preceded them underscore the for seeming futility that the right of belligerence is not unlimited. Attempts were stalled until the 1970s. , thediplomatic conference ruthless and blatant colonialist and racialist repression representatives from National Liberation movements and newly independent states seized on these concepts as a means of capturing the wholesale devastation of colonial wars and to hold imperialist states accountable. Significantly, it was the first time in the development of the laws of war that colonized people who had previously been only subject to the laws of war became their authors and interpreters. They did so through invoking an experience or expertise grounded in their recent experiences and argued for particular interpretations as well as developments in the laws of war. Delegates from newly decolonized states insisted on the atrocious reality of what they experienced in balancing or contradicting the work of certain experts who wish to pontificate upon the scope of injury and suffering occurred. After all, as they highlighted, they were the people who really had firsthand knowledge, although mostly on his victims, of the effects of modern conventional weaponry. They insisted upon broadening the understanding of concepts of superfluous injury and unnecessary suffering to include not only physical harm and injury but also psychological more significantly, harm to ways of means ways and means of life. The majority of delegates first attempt to limit the scope of superfluous injury and unnecessary suffering, empirical, quantifiable individual assessments, leading to exchanges, as when the delegates of sweden in the traded. Tates third world delegates refused to accept such technical interpretation of suffering an injury and demanded a more robust accounting. They were all too manipulable and could potentially justify genocide as the irony was technical advances in certain imperialist countries enabled them to justify using arms which were said to cause less unnecessary suffering by killing more quickly. Further, as another delegate explained, to prohibit or restrict certain categories of weapons would give the impression they alone were dangerous. In fact, by the largescale use of person largescale use of weapons, the aggressor could produce effects that were just as dangerous and cruel if not more so. The delegates were trying to move away from a focus on the means or weapons of war to thinking about the methods of war itself. They demanded that concepts of suffering and injury be expanded and deepened to consider the complexity and nuance his incumbency and the entire way of life, namely injury and suffering should both be conceptualized in terms of genocide, biocide, and ecocide. The damage to the environment is fundamentally damaging was reiterated for goalie in regard to the effects of defoliation and use of herbicides for which the anon had become a testing ground the damage to the environment as fundamentally reiterated in regards to the effect of defoliation and use of herbicides for which the testing ground was vietnam. It was expanded and deepened to consider the complexity and nuances of suffering an injury encompassing an entire way of life. A turning point in the development of the war and the codification of prohibition against superfluous injury and unnecessary suffering, it was also a moment in which the their wordsn colonial, racist, and imperialist wars, reclaimed the. Aws of war to retrieve the debate over superfluous injury and unnecessary suffering, unsuccessful though much of it probably was, and the politics of that debate across time and space, is to excavate a resource for thinking about restraint, power, and authority in contemporary wars. Something which has no history only something was has no history can be so cleanly and ably defined, while the very it or ability of the law suggests it can never be wholly regulated or systematized in advance. This offers for cicely reliability that the laws of war may be used in unpredictable ways and not always in the service of what some call a violent imperialism. It asks us to recognize the old scope of injury and suffering incurred. [applause] thank you, mary, very much. Thank you for inviting me to come today. I agree with john that the how law constrains war is too constraining. Law does constrain sometimes, as john says, as he often says as he also says, it often empowers in war. It is a lens for political debate. Very often, war shapes law. Indeed, very often more often war shapes law than law shapes war. Im going to talk about how the laws of war, domestic and international, have operated since 2001. Im going to suggest that it has not had much of an impact, and that has not seemed like much of a constraint when it comes to the initiation of war, but it has much more of a constraint and has taken has been taken much more seriously, inside the government anyway, when it comes to the conduct of war, but the constraining effect might not have the ultimate impact that some people think it should. Theepends the answer to question in short is it depends what type of war you are talking about. If you look at article to, the president s use of force under article two since 2001, president s have used military force, president obama and President Trump and president bush, in some circumstances, in the absence of congressional authorization, and the justifications they have given primarily in libya in 2011 and the same justification President Trump gave for his use of force in syria without congressional authorization, the office of Legal Counsel