1

Introduction

1.1 Introduction
This is a book about how international law related to the regulation of
political violence fails to address the contemporary experience of what we
call ‘new wars’ – bouts of armed violence in places such as Syria and
Ukraine, Mali and Libya, the Democratic Republic of Congo and South
Sudan, to name but a few of these zones of hostilities and insecurity at the
time of writing. Contemporary international law, largely constructed in
the nineteenth and twentieth centuries, rests to a great extent on out-
moded conceptions of war drawn from the experience of European wars –
inter-state clashes involving battles between regular armed forces, which
we call ‘old wars’.
In the twenty-first century, there have been efforts to adapt the
international legal framework relating to the use of force, often in what
we perceive as dangerous directions. Former US President George
W. Bush talked about a ‘new paradigm’, which required ‘new thinking’
about international law,1 while UK Prime Minister Tony Blair said that
the ‘rules of the game have changed’.2 Whether we are talking about
Bush’s conception of ‘pre-emptive self-defence’ to justify the invasion of
Iraq in 2003 or his depiction of detainees at Guantánamo Bay as ‘illegal
combatants’, President Obama’s justifications for targeted killings, Presi-
dent Putin’s claim to be permitted to come to the defence of so-called
Russian nationals in Ukraine or Georgia, or debates about the legality of

1
‘Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks against Us
and Our Friends’, The White House Archives, 14 September 2001, http://georgewbush-
whitehouse.archives.gov/nsc/nss/2002/nss3.html.
2
‘Blair, in His Own Words’, BBC, 5 August 2005, http://news.bbc.co.uk/1/hi/uk_politics/
3750847.stm. Blair’s comments followed the 7 July 2005 bombings on the London
transport system.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 4 introduction
airstrikes against the Islamic State (IS)3 in Syria, attempts are made to
stretch international law to accommodate current responses to ‘new
wars’ in ways which, even if not widely accepted, tend to weaken the
constraints on violence in international affairs agreed upon after the end
of the Second World War. And indeed a similar argument may apply to
some of the more well-meaning additions to international law relating to
humanitarian interventions and/or peace agreements, put forward in
international and regional institutions like the United Nations, the Euro-
pean Union or the African Union. In almost all of these cases, these
purported adaptations of international law, we argue, are based on ‘old
war’ assumptions.
We argue that war, both ‘old’ and ‘new’, needs to be reconceptualised
as a humanitarian catastrophe. Despite the fact that the use of force in
international relations was prohibited in the United Nations Charter
adopted in 1945, the idea of war as a legitimate phenomenon has a
powerful resonance, lingering on in the self-defence exception as well
as in geo-political assumptions about the importance of military power
and deeply rooted ideas of national (state) security. In the post–World
War Two period, an important development has been the emergence of
international human rights law, which offers a different perspective to
how we understand ‘new wars’. On this basis, we make the case for an
alternative rights-based response to ‘new wars’, a second generation
Human Security approach, as a practical rather than a utopian solution.
We do not reject the reality that international law must – as it always
has – develop and evolve, but we argue that such evolution must be based
on a principled understanding of the realities of new wars and not on
expedient responses to crisis.4 We emphasise too the gender dimension
of conflict and the critical role of gender in developing an alternative
approach.
‘War’ is no longer a term used in modern international legal discourse5
although it remains in popular discourse. By ‘war’ we refer to the collective
use of force involving two or more actors. In international law terms, the

3
This body is variously called Islamic State (IS), the Islamic State of Iraq and Syria (ISIS),
the Islamic State of the Levant (ISIL), or, in Arabic, Daesh. Our use of IS does not in any
way denote that we consider it as a state, or putative state.
4
Charlesworth, Hilary 2002. ‘International Law: A Discipline of Crisis’, Modern Law Review
65: 377–392.
5
The Covenant of the League of Nations, 1919, refers to ‘war or the threat of war’ and
‘resort to war’ (articles 11 and 12), while the United Nations (UN) Charter, 1945, refers to
the use of force in international relations (article 2 (4)).

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 new wars 5
use of force refers to military force, or the use of armed force in conflict,
governed by the laws of war. In contrast the (legitimate) use of force
domestically refers to policing, which operates according to much tighter
rules of engagement, at least in rights-based societies. Our argument that
war is illegitimate does not imply that all uses of force are illegitimate.
Rather it means that if force is used legitimately in the globalised arena, it
must operate under similar sorts of constraints and with similar objectives
as operate traditionally within rights-based societies.
We recognize that political developments are moving in the opposite
direction. In 2016, the election of Donald Trump as President of
the United States and the United Kingdom referendum vote to leave
the European Union were both expressions of aspirations similar to those
found in Russia or some east European countries, for a return to national
sovereignty and the simplicities of geo-politics and polarisation around
national and religious divisions. We take the view that these tendencies
will only make things worse and exacerbate the various forms of violence
to be found in ‘new wars’. This is why a different and realistic under-
standing of security is all the more needed.
In this first chapter, we begin by describing what we mean by ‘new
wars’. We then discuss what has become known as the gap between
legality and legitimacy. This has gained prominence as a consequence of
challenges to international law as an inadequate tool to regulate contem-
porary forms of violence and recourse to arguments asserting the legit-
imacy of the use of force in preference to legal analysis. We then outline
five different models or ways of responding to new wars and how they
construct, interpret, adapt or stretch international law in accordance with
their differing conceptions of legitimacy. These models then form the
conceptual basis for analysis throughout the book. And in the concluding
section, we outline the plan of the book.

1.2 New Wars

1.2.1 The Logic of New Wars
In a speech to the Academy of Military Science in January 2013, the
Russian Chief of the General Staff, Valery Gerassimov, talked about the
appearance of a new type of warfare, which he called ‘non-linear war’. In
an eerie anticipation of what was to happen in Crimea and Eastern
Ukraine the following year, he argued that in ‘the 21st century, we have
seen a tendency towards blurring the lines between the state of war and

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 6 introduction
peace. Wars are no longer declared and, having begun, proceed according
to an unfamiliar template’. He went on to describe how ‘a perfectly
thriving state can, in a matter of months and even days . . . sink into a
web of chaos, humanitarian catastrophe, and civil war’. He said that
‘frontal engagements of large formations of force . . . are becoming a
thing of the past’ and that, instead, the use of special forces, exploitation
of internal opposition ‘as well as informational actions, devices and
means’ are the methods of contemporary warfare.6
In the literature about contemporary war, an array of terms has been
used to make a similar point. The American military often use the term
‘hybrid wars’.7 Other terms include ‘wars among the people’,8 ‘wars of the
third kind’,9 ‘privatized wars’,10 ‘post-modern wars’11 as well as ‘new
wars’.12 In this book, building upon earlier work by Mary Kaldor, we use
the term ‘new wars’. The advantage of the term is that it draws attention
to the way that contemporary political violence is different from the
predominant ‘old war’ conception that tends to underlie scholarly analy-
sis, legal practice and policymaking.
The concept of ‘new wars’ has been criticised on the grounds that new
wars are not ‘new’ and that they may not be ‘war’.13 We agree that ‘new
wars’ are not necessarily empirically new; rather they are different from
an idealised conception of ‘old wars’. The aim is to elucidate different
ways of understanding and analysing extreme political violence. It would
be odd if all aspects of ‘new wars’ were empirically new, but it would be
equally odd if there were no new features – the globalised aspects of new

6
Gerassimov, Valery 2013. ‘The Value of Science in Prediction’, published in Military-
Industrial Kurier, English version available at http://inmoscowsshadows.wordpress.com/
2014/07/06/the-gerasimov-doctrine-and-russian-non-linear-war/.
7
Hoffman, Frank 2007. Conflict in the 21st Century: The Rise of Hybrid Wars. Arlington,
CA: Potomac Institute for Policy Studies.
8
Smith, Rupert 2005. The Utility of Force. London: Alfred A. Knopf.
9
Rice, Edward 1990. Wars of the Third Kind: Conflict in Underdeveloped Countries.
Berkeley: University of California Press.
10
Eppler, Erhard 2001. Vom Gewaktmärkte zum Gewaltmarkt? Die Privatisierung und
Kommerzialisierung der Gewalt. Frankfurt: Suhrkmamp.
11
Hables Gray, Chris 2007. Post-Modern War: The New Politics of Conflict. London:
Routledge.
12
Duffield, Mark 2001. Global Governance and the New Wars: The Merging of Development
and Security. London: Zed Books; Kaldor, Mary 1999. New and Old Wars: Organised
Violence in a Global Era. Cambridge: Polity Press, 3rd edn.; Munkler, Herfried 2005. The
New Wars. Cambridge: Polity Press.
13
These critiques are addressed in Kaldor, Mary 2013. ‘In Defence of New Wars’, Stability
Journal 2:1–16.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 new wars 7
wars, as we stress, are extremely important. For our purposes, however,
the differences between ‘old’ and ‘new wars’ have to do with the logic and
dynamics of these different types of wars rather than with their empirical
characteristics. Indeed, the expression ‘new wars’ is a conceptual rather
than descriptive categorisation.14 We have some sympathy for the argu-
ment that new wars are not war since they can also be described as
criminal enterprises, banditry, terrorism or massive violations of human
rights; nevertheless they are fought in the name of political goals, and
politics accordingly has to be part of the response.
The central argument is that new wars have a different logic from old
wars. Clausewitz was the key theorist of ‘old wars’. He defined war as ‘an
act of violence intended to compel our opponent to fulfil our will’.15
From this definition, he derived the proposition that war is a clash of
wills that tends to the extreme; the politicians want to achieve their
political objective; the generals need to disarm the opponent; and the
war releases hatred and passion among the people. If, however, we define
war as ‘an act of (organised) violence framed in political terms’ then war
might be understood either as a clash of wills or what we could describe
as a mutual enterprise in which the various armed groups have more to
gain from war itself, from fighting, than from winning or losing. In what
follows, we elaborate this notion of a mutual enterprise, the way in which
the various armed groups need the condition of war for economic and
political purposes – war as a means of extracting resources or instru-
mentalising extremist identities. Where wars have more of the logic of a
mutual enterprise than the logic of a contest of wills, they are likely to
lead to persistence and spread, to be long, sporadic, difficult to end and
difficult to contain geographically, in contrast to Clausewitzean wars that
tend to the extreme. We argue that it is the failure to take into account
the logic of new wars that, to a large extent, explains why most responses
to new wars are so problematic.

1.2.2 The Characteristics of New Wars

We recognise that large-scale collective forms of violence – wars – all
have their own unique histories, topographies16 and trajectories, but

14
A point made by Orly Stern.
15
Von Clausewitz, Carl 1968. On War. London: Penguin Books, English edition, 5.
16
For example, fighting in the urban areas of Ukraine differs greatly from the vast spaces of
Northern Mali.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 8 introduction
nevertheless we argue that there are some common features in ‘new
wars’. Accordingly, to elucidate this alternative logic of war, in this
section we briefly describe how new wars differ from old wars in terms
of goals and identities, actors, tactics and forms of finance, although these
aspects interlink and are not easily discussed separately. We illustrate our
discussion with examples drawn especially from the conflicts in Ukraine,
Syria, Iraq and Mali.17 However, the situation in these countries is fluid
and constantly changing, so our examples are intended only as illustra-
tive of particular points and not as an account of the course of the
different conflicts.
Goals and Identities: New wars are largely fought in the name of
identity – ethnic, religious or tribal – rather than for political ideas or
geo-political goals. That is to say, the expressed goal of new wars is
exclusive access to the state for those identified with a particular label.
Religious wars can be about ideas, such as the imposition of funda-
mentalist or extremist interpretations of Sharia law, or about identity,
such as the right of representation in the name of a specific identity. The
religious wars of seventeenth-century Europe between Protestants and
Catholics were about ideas, dealing with the break-up of the Catholic
Church’s power, emerging secular power and the role of individuals; by
contrast, the war in Northern Ireland from the late 1960s was about the
identity and the rights of the different communities, defined by their
religion, to political power. Other ascribed identities are ethnicity-based,
such as the case of Hutus and Tutsis in Rwanda and Burundi, or both
religion and ethnicity-based as in the case of Serbs, Croats and Muslims
in the war in Bosnia.
Identity is fluid and changing; most human beings have multiple
identities. War is an important mechanism through which identities
are constructed and ‘fixed’, through the imposition of a binary ‘us’ and
‘them’.18 Even if previously they thought of themselves in terms of
national identity, as ‘Yugoslav’ or ‘Rwandan’, people began to self-
identify as Muslim or Tutsi because these were the identities that estab-
lished them as the target once violence erupted. In neither of these cases
nor, for example, in Northern Ireland could individuals change allegiance

17
Mary Kaldor’s original analysis of new wars was largely drawn from the wars around the
breakup of the former Yugoslavia in the 1990s, although it also took into account wars in
Africa and post-Soviet space. Its continued application to conflicts in 2016 attests to its
durability.
18
Kaldor, Mary 2013. ‘Identity and War’, Global Policy 4(4): 336–346.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 new wars 9
by converting from one religion or ethnicity to another, as these became
ascribed identities. Moreover, as several writers have observed, identities
constructed in war, whether ethnic, religious or tribal, tend to be closely
linked to gender and related to a (male) warrior mythology.19
In the era of decolonisation following World War II numerous
conflicts were fought for the political goals of national liberation and
sovereign independence. Some of these wars share features of new wars,
indeed they could be viewed as the precursor of new wars. Post-
independence, further conflict has broken out in many places, for
instance, Rwanda, Burundi, Sudan, Ethiopia, Somalia, Sri Lanka, Libya,
Yemen, which have often pitted against each other people of different
ethnicities or tribal affiliations who were caught by the continuation of
colonial boundaries.20 In some instances these identities had been con-
structed by colonial powers who imposed classifications on what had
previously been loose and inchoate groupings.21
An example of the identity-oriented goal of new wars in a post-
colonial state is Mali. In Mali some of the northern nomadic Tuareg
people (a term stemming from the French colonisers who divided and
classified different groups in Northern Mali)22 have made separatist
claims virtually since the independence of the state in 1960 and have
engaged in armed challenges against the government in the South on a
number of occasions. In 2012 the violence took on a new intensity for
two reasons; first, following the fall of Gaddafi in Libya, there was an
influx of heavy weaponry into Mali and a return of migrant Tuareg who
had been trained militarily by the Gaddafi government, and, second, they
were backed by Islamist groups whose goal of imposing Sharia law

19
Elshtain, Jean Bethke 1987. Women and War. University of Chicago Press.
20
The legal principle of uti possidetis – the continuity of colonial boundaries – was upheld
throughout decolonisation and accepted as customary international law; Case Concerning
the Frontier Dispute (Burkino Faso v. Mali), 1986 ICJ Reports 554, judgment of 22
December 1986.
21
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines
genocide in terms of intention to destroy a national, ethnical, racial or religious group.
The International Criminal Tribunal for Rwanda thus had to determine whether Hutus
and Tutsis are identified through ethnicity – this despite the fact that their earlier
differentiation was based on lineage, and it was the Belgian colonisers who introduced
distinction based on ‘ethnicity’. See Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-
4-T, 2 September 1998; Convention on the Prevention and Punishment of the Crime of
Genocide, 9 December 1948, United Nations Treaty Series, vol. 78, 277.
22
See Grémont, Charles 2012. ‘Villages and Crossroads: Changing Territorialities among
the Tuareg of Northern Mali’, in McDougall, James and Scheele, Judith (eds). Saharan
Frontiers: Space and Mobility in Northwest Africa. Indiana University Press.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 10 introduction
differed from their own. Much of the new separatist and religious
ideology had been forged in exile by Tuareg (Tamachek) migrants in
North Africa. This network of fighters controlled much of the North by
March 2012. Following further instability and violence (both with respect
to a coup against the Malian government and fighting between the
various rebel groups) French troops entered the country at the request
of the Malian government in January 2013. It should be noted that as in
other cases of identity-based ideologies, the separatists never represented
‘all’ Tuareg. Moreover the main Tuareg separatist group, the MNLA
(National Movement for the Liberation of Azawad–Northern Mali),
remained distinct from the main jihadist factions; one of these, the
Movement for Oneness and Justice in West Africa (MUJAO), expelled
MNLA from Gao, and another, Al Qaeda in the Islamic Maghreb
(AQIM), operated mainly in Timbuktu.
In a different manifestation of the genesis of new wars, in Ukraine,
what began as a pro-democracy protest against the government23 was
manipulated and channelled into what appeared as sectarian conflict
between ethnic Ukrainians and Russians.24 Many of those who were
engaged in the democracy movement explicitly rejected ethnic identities –
the slogan ‘I’m a drop in the ocean’ was meant to symbolise the loss of
traditional identities, and indeed the first person to die in the protests
was neither Ukrainian nor Russian but Armenian.25 After President
Yanukovych fled from Ukraine in February 2014, following months of
pro-democracy protests, pro-Russian separatists seized Crimea with the
support of Russian forces. A referendum was quickly held in Crimea
which resulted in a treaty being agreed between the Russian Federation
and the Crimean Republic on the accession of the latter into the former.
In effect Crimea was annexed by Russia.26 A few months later, pro-
Russian separatists seized administrative buildings in the Donetsk and

23
This has been the case in several other new wars, e.g., Libya and Syria.
24
For an account of the demographic shifts in Ukraine and the waves of violence against the
different peoples see Snyder, Timothy 2010. Bloodlands: Europe between Hitler and
Stalin. New York: Basic Books.
25
See Forostyna, Oksana 2015. ‘Poaching, Simmering and Boiling: The Declining Relevance
of Identity Discourse in Ukraine’, in Wilson, Andrew (ed.), What Does Ukraine Think?
London: European Council on Foreign Relations, 25–33.
26
In light of inaction in the Security Council because of the Russian veto, the General
Assembly called upon states and international organisations not to recognise any change
of status in Ukraine. UN GA Resolution 68/262, 1 April 2014 (‘Territorial integrity of
Ukraine’) was adopted by 100 states in favour to 11 against, with 58 abstentions.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 new wars 11
Luhansk regions of Eastern Ukraine. The consequence has been a conflict
between Russian separatists, backed by Russia, and Ukraine. As Tim
Judah, writing at the beginning of the war, reported: ‘[P]eople tell me
that they don’t believe war is coming and that Russians and Ukrainians
are brothers. I remember the same brave talk, the same euphoria, and the
same delusions before the Yugoslavs tipped their country into catas-
trophe in the 1990’s’.27 Language was already an issue in Ukraine, and
one of the first acts of the Parliament after President Yanukovych fled the
country was to pass an act downgrading the Russian language; even
though it was vetoed by the new President, it provided another pretext
for Russian actions in Crimea and Eastern Ukraine. As in the case of
similar identity-based ideologies that characterise ‘new wars’, this ideol-
ogy has a significant gender dimension: as illustration a rebel told Tim
Judah that this was a conflict between the Russian world and the West
where people no longer believe in families (what he meant was that
people in the West tolerate gender equality and sexual minorities).28 As
long as the war continues, the narrative of a sectarian conflict between
Ukrainians and Russians gains ground while the alternative narrative of
the protestors (democracy versus the criminalised oligarchies of both
Ukraine and Russia) is weakened; in other words sectarian identities are
constructed through new wars.29
Actors: Old wars were fought by regular armed forces wearing uni-
forms and those recruited by the state through conscription or payment
who were subject to national laws and military codes. In contrast, the
participants in the new wars are often loose and fluid networks of state
and non-state actors that cross borders. They include remnants or bits of
the regular armed forces, paramilitary groups, warlords, jihadists, terror-
ists, mercenaries, private security contractors and criminal groups.
For example, the IS is a transnational network of fighters primarily
from Iraq and Syria, but also from what might be described as a roll call
of new wars – Chechnya, Gaza, Kosovo, Bosnia, Sudan, the Middle East,

27
Judah, Tim. ‘Ukraine: The Phony War?’ New York Review of Books, 22 May 2014,
www.nybooks.com/articles/2014/05/22/ukraine-phony-war/.
28
Judah, Tim. ‘Ukraine: What Putin Has Won’, The New York Review of Books, 9 October
2014, www.nybooks.com/articles/2014/10/09/ukraine-what-putin-has-won/.
29
Nevertheless, many of the pro-democracy protesters were Russian speakers, and the
separatists have failed to mobilise support in other Russian-speaking regions. Indeed,
the strongest support for military action against the separatists has come from the
Russian-speaking neighbouring region of Dnipropetrovsk. See Hrystak, Yaroslav 2015,
‘Rethinking Ukraine’, in Wilson Andrew (ed.), op. cit., 34–44.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 12 introduction
as well as other parts of Europe and the United States. Arrayed against IS
are a similar collection of networks. In Iraq they include the Kurdish
peshmerger, various Shi’ia militias including the Mahdi army (previously
a major enemy of the Western30 occupation) and the Badr corps.31 In
Syria as well, IS faces networks of non-state actors. As of 2016, these
included the Syrian Democratic Forces, an alliance of anti-Assad armed
groups including Kurdish brigades as well as moderate rebels, and an
array of Islamist militia including Jabhat Fatah al-Sham (Conquest of
Syria Front) that changed its name from Jabhat al-Nusra and announced
that it was severing ties with Al Qaeda. The Assad regime relies on
similar types of armed groups and militias for use against the opposition
including what are called the National Defense Forces (often recruited
from regular soldiers and trained by the Iranian Revolutionary Guard),
Hezbollah and Shabbiya (an Alawite militia).
Ukraine as of 2016 further illustrates the diversity of actors in new
wars. The separatist forces include various armed groups generally
attached to an individual, either the ‘heads’ of the so-called People’s
Republics of Donetsk and Luhansk, or adventurers like Igor Girkin
(known as Igor Strelkov), a former colonel in the Russian Federal
Security Service, a veteran of the conflicts in Bosnia, Transdiniester and
Chechnya, a monarchist and supporter of the White anti-communist
movement. Many such individuals have adopted noms de guerre drawn
from superhero comics, for instance, after Alexander Bednov, killed on
1 January 2015, who was better known as Batman. Brigades include the
Prizrak (Ghost) brigade headed by Alexei Mozgovoy, the Oplot (Strong-
hold) brigade led by Alexander Zakharchenko, a former mining engineer
and head of the self-proclaimed Donetsk People’s Republic, as well as the
Vostok (East) brigade, Cossacks and military groups with names like
Sparta and Somalia. Many of these groups include volunteers from other
parts of the world, especially but not only, orthodox Christians from
Russia, Serbia, Brazil and elsewhere.32 They were supported initially with
arms, money and information from Russia and subsequently by Russian
volunteers known as ‘holiday-makers’; this last is a reference to a

30
By ‘West’ or ‘Western’ we refer to advanced capitalist countries, primarily the United
States and its allies.
31
Cockburn, Patrick. ‘War against ISIS: US Strategy in Tatters as Militants March On’,
Independent on Sunday, 12 October 2014, www.independent.co.uk/voices/comment/war-
against-isis-us-strategy-in-tatters-as-militants-march-on-9789230.html.
32
International Crisis Group. ‘Eastern Ukraine: A Dangerous Winter’, Crisis Group Europe
Report No. 235, 18 December 2014.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 new wars 13
statement by Zakharchenko that ‘several thousand Russian servicemen
had spontaneously gone to Donetsk in their vacation time to fight
alongside separatists bringing all their equipment with them’.33 In
Crimea, the Russian soldiers were known colloquially as ‘little green
men’ since they wore green, unmarked uniforms and masks.
On the Ukrainian side, the regular forces, which were weak in the early
stages of the conflict, have also been complemented by volunteer bri-
gades. Some are veterans of the protests in Maidan (Nezalezhnosti)
Square in late 2013 and 2014, supported by grassroots financing from
civil society initiatives and small and medium businesses. Some are
motivated by a far-right ideology like the ultra-conservative Right Sector
or the notorious Azov brigade, whose members were shunned by the
Maidan protestors because of their white supremacist and anti-
democratic views. Others, like the Drepl brigade, were established by
business oligarchs.34
As in old wars, the fighters are predominantly male with media reports
depicting the leaders of such networks in ways that exemplify the
construction of the physical and representational aspects of wartime
masculinity. But on both sides, there have also been reports of women
fighters. Some protestors from the Maidan formed a predominantly
female self-defence unit known as Unit 39,35 while in Eastern Ukraine
there is reported to be a 25-member all-female battalion based in the
town of Krasny Luch. Some have suggested that the women have been
recruited on the Eastern side as human shields; a Kiev news agency
reported Donetsk leaders as saying ‘no one will shoot at the separatists
if they are women’.36 In Syria, Kurdish women make up a high propor-
tion of Kurdish fighters including the commander of the resistance to IS
in Kobane.
Means: In old wars, battle – the clash between opposing military
forces – was the decisive encounter. The goals of the war were to be
achieved through the military capture of territory and defeat of opposing

33
Ibid. 15.
34
Adrian, Karatuychky. ‘Warlords and Armed Groups Threaten Ukraine’s Rebuilding’,
Washington Post, 30 December 2014, www.washingtonpost.com/opinions/the-rise-of-
warlords-threatens-ukraines-recovery/2014/12/30/a23b2d36-8f7b-11e4-a412-
4b735edc7175_story.html?postshare=2981419988538209.
35
Nemtsova, Anna 2014. ‘Girls, Stop What You’re Doing or Die’, Foreign Policy, http://
foreignpolicy.com/2014/05/23/girls-stop-what-youre-doing-or-die/.
36
Sharma, Versha 2015. ‘Meet the Female Fighters of Eastern Ukraine’, Vocativ,
www.vocativ.com/world/ukraine-world/meet-female-fighters-eastern-ukraine/.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 14 introduction
forces. In new wars, by contrast, battles are rare and the main violence is
directed towards civilians. The goals are to be achieved through the
political control of territory; indeed, forced displacement is probably
the most characteristic tactic of new wars. Typically, in new wars, armed
groups take over areas where the state presence is weak and then use
further violence as a form of intimidation. They often engage in highly
visible atrocities – executions, torture, sexual violence, suicide bombings,
planting landmines, looting, arson – as a way to generate fear and cause
survivors to flee. Such violence spreads terror and is also targeted against
those who disagree and those of a different identity. Social media and
mass communications are widely used in new wars as an efficient way of
spreading terror. IS, for instance, is highly skilled at communication
techniques for propaganda and mobilisation and has a substantial social
media presence that is used to propagate medieval notions of punish-
ment and torture. In new wars, casualties (deaths) tend to be low
compared with old wars, but displacement is extremely high.37 Moreover
most casualties are civilians even though it is often difficult to distinguish
civilians and combatants.38
Mali is illustrative of the typical tactics of ‘new wars’. There are reports of
serious human rights violations in the North: ‘summary executions, illegal
arrests and forced disappearances, the use of children by armed groups,
rape, forced marriages, destruction and looting of property’.39 The United
Nations Multidimensional Integrated Stabilization Mission in Mali
(MINUSMA) personnel and property have also been subjected to attacks,
including by improvised explosive devices, mortar shells and gunfire.40
Destruction of historic and cultural buildings and symbols (such as the
burning of historical manuscripts in Timbuktu41 and devastation of ancient

37
Rigterink, Anouk 2014. ‘New Wars in Numbers: An Empirical Test of the ‘New War’
Thesis’, Security in Transition, www.securityintransition.org/wp-content/uploads/2014/
10/Rigterink.-New-Wars-in-Numbers.pdf.
38
See Chapter 6.
39
Report of the Secretary-General on the situation in Mali, UN Doc. S/2013/189, 26 March
2013, para 16. This continues into 2016, when, despite the signing of the Agreement on
Peace and Reconciliation in Mali in June 2016, the ‘human rights situation continued to
be of serious concern’. Report of the Secretary-General on the situation in Mali, UN Doc.
S/2016/498, 31 May 2016, para 22.
40
Report of the Secretary-General on the situation in Mali, UN Doc. S/2015/426, 11 June
2015, paras 21–22.
41
In August 2016, Ahmad Al Faqi Al Mahdi pleaded guilty to charges of war crimes relating
to the destruction of historical and religious monuments in Timbuktu before the Inter-
national Criminal Court; The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 new wars 15
cultural sites in Iraq, Syria and elsewhere) is also used to demonstrate
rejection of ‘pagan’ monuments and to frighten those of a different
identity. IS moved into areas in Iraq or Syria where governance was weak
and there was little resistance and established political control through
systematic expulsion (or attacks on) those who do not accept their version
of Islam. A 2014 report from the United Nations Office of the High
Commissioner for Human Rights (OHCHR) and the United Nations
Assistance Mission to Iraq42 describes a ‘staggering array’ of killings, dis-
placements and gross human rights violations against Sunnis who refuse to
pledge allegiance to IS, members of the Iraqi security forces, Iraqi govern-
ment personnel, prisoners and detainees from Shi’ia and other ethnic
communities, including Turkmen, Shabak, Christians, Yezidi, Sabaeans,
Kaka’e and Faili Kurds. The report details intentional destruction of reli-
gious sites such as mosques, churches and Yezidi shrines, and other build-
ings of cultural significance. It also includes reports of rape and sexual abuse
and the active recruitment of children. The Report describes how Christians
in Mosul were faced with the choice of conversion or death. The systematic
killing of Yezidis has been widely reported, as has the beheading of Western
journalists and aid workers. Sexual violence is also a way of targeting
identity; IS is reported to have systematically recruited Yezidi girls as sexual
slaves.43 There have also been reports of mass killings of Iraqi army and air
force cadets in Camp Speicher, allegedly in collaboration with Tikriti tribes,
as well as mass executions of Syrian soldiers.44
In some cases new war networks establish some of the trappings of
statehood – courts, taxation and public services. IS in particular tries to
establish a state-like presence in the areas it controls in order to entrench
their political position. They establish a bureaucracy, secure a monopoly
of violence and provide public services such as water and electricity,
bread and health care.45

42
OHCHR and UNAMI, Report on the Protection of Civilians in Armed Conflict in Iraq: 6
July–10 September 2014, www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_
POC_Report_FINAL_6July_10September2014.pdf.
43
Callimachi, Rukmini. ‘ISIS Enshrines a Theology of Rape’, New York Times, 1 August
2015, www.nytimes.com/2015/08/14/world/middleeast/isis-enshrines-a-theology-of-rape
.html?_r=0.
44
Jiyad, Sajad 2014. ‘Iraq’s Response to the Challenge of Islamic State’, European Council on
Foreign Relations, www.ecfr.eu/content/entry/commentary_iraqs_response_to_the_chal
lenge_of_the_islamic_state321.
45
Turkmani, Rim 2015. ‘ISIL, JAN and the War Economy in Syria’, Security in Transition,
www.securityintransition.org/wp-content/uploads/2015/08/ISIL-JAN-and-the-war-econ
omy-in-Syria2.pdf.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 16 introduction
In Crimea in early 2014, separatists seized administrative buildings,
and, given the substantial presence of the Russian military and the
decision by the Ukrainian government not to resist, political control
was quite rapidly established. Human rights violations continued, espe-
cially against minorities, such as the Crimean Tatars, or against those
who continued to claim a Ukrainian identity. In Eastern Ukraine too,
where state institutions were very weak, separatists, with the support of
foreign fighters, seized administrative buildings in the Donetsk and
Luhansk regions, but they lacked coherence and sufficient local support
to be able to extend their control to other areas.
The methods of exercising control of territory in Eastern Ukraine seem
to follow the pattern of other new wars. The OHCHR reports widespread
human rights violations including ‘killings, abductions, ill-treatment,
sexual violence, forced labour, ransom and extortion of money’.46 The
use of conventional forces by the Ukrainian Government, including the
shelling and use of cluster munitions47 in civilian areas and the subse-
quent large influx of Russian weapons and personnel, has greatly exacer-
bated the violence.
Forms of Finance: Old wars were financed by taxation and official
state borrowing. They were typically associated with a war economy
that was centralising, autarchic and totalising – involving all citizens. In
particular, during the two World Wars, women were drawn into the
paid labour force in large numbers. The economy of new wars is almost
exactly the opposite. New war economies are decentralised and open to
the global economy. Participation in military activity tends to be low,
and unemployment tends to be high. Receipts from taxation are min-
imal or non-existent so the warring factions have to find other ways to
finance their activities, ways which are usually directly related to vio-
lence. These methods of financing include looting and pillage; setting up
checkpoints where assets such as televisions, cows and foreign currency
are ‘exchanged’ for necessities; extortion and demands for protection
money; ‘taxation’ and stealing of humanitarian aid; financial support
from the diaspora; kidnapping and hostage-taking; and various kinds of

46
Office of the United Nations High Commissioner for Human Rights. ‘Report on the
Human Rights Situation in Ukraine’, 15 December 2014, www.ohchr.org/Documents/
Countries/UA/OHCHR_eighth_report_on_Ukraine.pdf.
47
OSCE Special Monitoring Mission to Ukraine. ‘Civilians Killed and Wounded in Strike
with Cluster Munitions in Izvestkova Street in Luhansk City’, Organization for Security
and Co-operation in Europe, 3 February 2016, www.osce.org/ukraine-smm/138906.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 new wars 17
organised criminal activity, especially stealing, smuggling and trafficking
valuable commodities such as oil, diamonds, antiquities, drugs and
humans.
The economy of Ukraine has deteriorated precipitously since the
conflict began,48 as is typical of states where new wars are fought. In
November 2014, the Ukraine government withdrew its institutions from
the areas controlled by the rebels with devastating effects on the local
populations already suffering from lack of services (medical services,
water and electricity) due to widespread destruction. Much of the econ-
omy remains state controlled, so this decision meant the halting of
payment of pensions and wages. People can only survive through relocat-
ing, through joining a militia or engaging in criminal activity. There are
widespread reports of predatory economic activities, including seizure of
property, extortion at checkpoints and ransom. Corruption in Ukraine
was pervasive before the war began, and Ukraine was at the centre of
various criminal networks, especially human trafficking and drug smug-
gling; indeed, the Maidan protests and the eagerness expressed for
Ukraine to join the European Union had to do with a popular concern
to tackle corruption. Despite anti-corruption efforts by civil society and
(somewhat slowly) by the Poroshenko Government in Ukraine, the
lawlessness in the East and the rise of armed groups only serve to
entrench corruption and criminality in the whole of Ukraine, but espe-
cially in the East.
A similar situation pertains in Syria. In areas outside of government
control, traditional sectors (agriculture, industry, tourism) have declined
dramatically. Pensions and salaries have been halted, and access to
humanitarian aid is precarious so that those who have not fled or do
not receive remittances from abroad are forced to join a militia or engage
in criminal activities to survive. The war has created a new class of war
profiteers while everyone else has been greatly impoverished. At the same
time, as in other new war situations, it is possible to identify numerous
deals among the warring parties for economic purposes – for example,

48
As stated in a March 2015 European Parliament Briefing Paper, ‘Ukraine’s economy has
been ailing for years, and the current conflict has exacerbated the situation. Kyiv is now
struggling to save its economy and its currency’. See Bentzen, Naja. ‘Ukraine after Minsk
II: The Next Level Hybrid Responses to Hybrid Threats?’ European Parliament Briefing
Paper, 16 March 2015, www.europarl.europa.eu/RegData/etudes/BRIE/2015/551328/
EPRS_BRI(2015)551328_EN.pdf.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 18 introduction
the sale of diesel by IS to all parties, or the exchange of water for
electricity between government and rebel groups.49
As in the case of the methods of violence, men and women experience
these economic aspects of ‘new wars’ differently. It is young men who are
unemployed and often unable to marry who find themselves recruited
into combatant groups or engaging in criminal activities. And it is, by
and large, women who suffer the everyday consequences of loss of
income, dependence on humanitarian assistance and, as in Ukraine,
facing a ‘heightened risk’ of sexual violence (from armed groups), domes-
tic violence by servicemen returning from conflict areas and of trafficking
and resorting to prostitution as a means of survival.50
The Logic of Persistence and Spread: Taken together, these various
aspects of new wars explain the tendency for their longevity and to spill
over borders. Both for political reasons – the need to underpin extremist
identity politics – and for economic reasons – the need to maintain
access to resources – the various warring parties acquire a vested interest
in continued violence. What becomes established is a predatory set of
social relations that are difficult to contain in time and space. They are
disseminated through identity politics, especially through vulnerable
refugees and internally displaced persons and former combatants seeking
a new role. Likewise, they spread through transnational criminalised
networks, which are the vectors of various types of illicit (and violent)
activity. Although new wars have many of the characteristics of civil
wars,51 they are not purely domestic; indeed, the distinction between
‘inside’ and ‘outside’ becomes blurred in new wars. This explains the
emergence of ‘bad neighbourhoods’52 – the way in which new wars
cluster in certain regions such as Central Africa, the Horn of Africa,
Central Asia, the Balkans and, of course, the Middle East. But other
regions cannot remain immune from their impact as the dramatic

49
Turkmani, Rim with Ali, Ali A. K., Kaldor, Mary, and Bojicic-Dzelilovic, Vesna. ‘Coun-
tering the Logic of the War Economy in Syria: Evidence from Three Local Areas’, Security
in Transition, 30 July 2015, www.securityintransition.org/wp-content/uploads/2015/08/
Countering-war-economy-Syria2.pdf.
50
Office of the United Nations High Commissioner for Human Rights. ‘Report on the
Human Rights Situation in Ukraine: 1 December 2014 to 15 February 2015’, paras 61–63,
www.wecf.eu/english/articles/2015/03/violence-against-women-in-ukraine.php. Another
consequence is the high rate of child and forced marriage.
51
See Kavylas, Stathis 2006. The Logic of Violence in Civil War. Cambridge University Press.
52
See Weiner, Myron 1996. Bad Neighbourhoods: An Enquiry into the Causes of Refugee
Flows. Cambridge, Mass.: MIT Press.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 legality and legitimacy 19
increase in the flow of migrants to Europe fromn the summer of
2015 vividly exemplifies.
New wars are difficult to end because few of the participants have an
interest in winning; rather, they prefer the perpetuation of violence and/
or disorder. When peace agreements are negotiated by the international
community, the participants, typically leaders of the warring factions, are
those with a vested interest in sustaining violence and entrenching their
positions of power and the political economy of war from which they
benefit. Indeed the promise of participation in peace talks, which offers a
route to state power, increasingly becomes a motivation for engaging in
violence, thereby contributing to the persistence of violence. This is why
peace agreements, even when formally upheld by the international
community, do not necessarily end the violence, particularly in regard
to criminality and gender-based violence.53 Women may have partici-
pated in the fighting, but they are rarely involved in peace processes and
thus are excluded from positions of power and allocation of resources in
post-conflict societies. As such, both the distinction between conflict and
post-conflict and the distinctions between political, criminal and gender-
based violence are blurred in new wars, and yet it is these distinctions that
are so important for the application of international law as it is currently
constituted. It is these tensions that are explored in the rest of this book.

1.3 Legality and Legitimacy

The Independent International Commission on Kosovo famously
concluded that the 1999 bombing campaign undertaken by NATO
against Yugoslavia was illegal but legitimate.54 The war had, in the end,
allowed Kosovar Albanians, who had been forcibly expelled or who had
fled from Serbian persecution in Kosovo, to return, although often to
destroyed villages and homes, but it was not authorised by resolution of
the United Nations Security Council. Nor was it justified by the Genocide
Convention as the expulsion and oppression of the Kosovar Albanians,
even though they involved gross violations of human rights and crimes
against humanity, did not amount to genocide.55 One implication of this

53
See Chapters 8 and 9.
54
The Independent International Commission on Kosovo 2000. Kosovo Report: Conflict,
International Response, Lessons Learned. Oxford University Press.
55
The Convention on the Prevention and Punishment of the Crime of Genocide, op. cit. See
further Chapter 5.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 20 introduction
conclusion was that international law needs to be adapted to address
today’s realities and that a gap between legality and legitimacy greatly
weakens the standing of international law. The finding of the Kosovo
Commission has contributed to considerable debate about the legality
and/or legitimacy of the use of force by states in particular incidents,56
generally of the international legal system and of the desirability of the
distinction.
One problem is what is understood as legitimacy. In the period before
1989, when an East–West nuclear confrontation was the worst threat that
could be imagined, it was easier to establish a shared (albeit divided along
those lines) framework for legitimacy since the common starting point
was a geo-political ‘old war’ conception of international affairs.57 In
response to ‘new wars’ and globalisation, a range of competing concep-
tions of what is considered legitimate are now identified that are associ-
ated with different ways of addressing the gap between legality and
legitimacy.
Legality – rules emanating from the accepted source of authority
within a political unit – may either be compromised by illegitimacy or
be reinforced by legitimacy. Legitimacy, as Max Weber in his original and
seminal work expounded, has to do with beliefs and the idea that rules
should be obeyed because it is right to do so.58 Beliefs about the ‘right-
ness’ of particular rules are based on prevailing societal norms, grounded
in religion or morality, for instance, a belief that responding to assist in a
humanitarian crisis is the right thing to do. The concept of legitimacy is
used to enhance the moral persuasiveness of international law by
importing other values such as those of justice or equity. Conversely
the centrality and universality of international law is undermined by
assertions of its illegitimacy, either of the system as a whole or, more
frequently, of particular rules.59 ‘Legitimacy’, says Andrew Hurrell, ‘refers

56
Ian Clark points out that after a period when the concept was marginalised in inter-
national relations, it had become quite widely referred to from the early 1990s; Clark, Ian
2005. Legitimacy in International Society. Oxford University Press, 11–12.
57
Ian Clark explains that the ‘certainties’ of the Cold War foreclosed discussions of
legitimacy in international relations, while the post–Cold War order allowed for a
‘harmony of international values’ but also that ‘political power’ has brought about both
‘hegemonic discourse’ and divisions and uncertainties. Clark, Ian, op. cit., chapter 8.
58
Weber, Max 1978. Economy and Society. Berkeley: University of California Press.
59
From different perspectives see Franck, Tom 1995. Fairness in International Law and
Institutions. Oxford University Press; Tourme-Jouannet, Emmanuelle 2013. What Is a
Fair International Society? French Studies in International Law, Hart Publishing.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 legality and legitimacy 21
to a particular kind of rule-following or obedience, distinguishable from
purely self-interested or instrumental behaviour, on the one hand, and
from straight-forward imposed or coercive rule, on the other’.60 Legitim-
acy after a conflict may be imbued with the values and interests of the
victor, suggesting that legitimacy is always contingent on power and
domination. While a relationship between power and legitimacy must
be acknowledged, Ian Clark offers a middle ground: ‘Legitimacy con-
strains power, but also enables it; power suffuses legitimacy, but it does
not empty it of normative content’.61 Further, as Hurrell also acknow-
ledges, the distinction between legitimacy and the calculation of interests
can be hard to discern; indeed, legitimacy and self-interest may be
entwined as when states regard the formation of and compliance with
international institutions as in their self-interest.62 And beliefs – the
constituents of social legitimacy – also vary widely between participants
within and across both domestic and international societies.63 Govern-
mental actors and civil society groups may have disparate views about
what is legitimate action so that ‘factors that may help to legitimise
[action] in the eyes of non-state actors may help to delegitimise it in
the eyes of state actors’.64
Efforts to unpack the meaning of the term by, inter alia, sociologists,
political scientists, philosophers, anthropologists and lawyers include a
variety of categories of legitimacy. In his original theory, Weber distin-
guished between legitimacy based on tradition and custom; legitimacy
based on the charisma of individual leaders; and the bureaucratic-
rational legitimacy that is characteristic of the modern period.65 Legitim-
acy is also about the ‘justification of authority’66 as well as the acts those
in authority perform.67 In this regard, contemporary scholars often draw
a distinction between procedural and substantive, or between input and
output, legitimacy, distinctions that come close to that between legality

60
Hurrell, Andrew 2007. On Global Order: Power, Values, and the Constitution of Inter-
national Society. Oxford University Press, 78.
61
Clark, Ian, op. cit., 4.
62
Bodansky, Daniel 2008. ‘The Concept of Legitimacy in International Law’, in Rüdiger
Wulfrum and Volker Röben (eds.) Legitimacy in International Law. Berlin, Heidelberg
and New York: Springer, 309–317, 312. See further Chapter 3.
63
For an analysis from the perspective of the ‘English school of international relations’ see
Clark, Ian, op. cit.
64 65
Bodansky, Daniel, op. cit., 314. Weber, Max, op. cit.
66
Wulfrum, Rüdiger in Wulfrum, Rüdiger and Röben, Volker (eds.), op. cit., 6.
67
Coleman, Katharina 2007. International Organisations and Peace Enforcement.
Cambridge University Press, chapter 1.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 22 introduction
and legitimacy. Procedural or input legitimacy refers to the procedures
through which an authority or a rule is established, for example, law-
making procedures in a Parliamentary democracy, decisions of properly
constituted judicial bodies or a UN Security Council resolution. Proced-
ural and input legitimacy are more elusive in an international legal
system lacking a constitution and legislative body. Substantive or output
legitimacy refers to how an authority acts or a rule is implemented and
whether this conforms to dominant beliefs. Substantive legitimacy is
challenged when the subsequent acts of legally established international
institutions are far removed from the initial understanding and language
of the constitutive treaty. For instance, in the UK there is much discus-
sion about the supposed illegitimacy of decisions of the European Court
of Human Rights where the judges are perceived as going beyond the
constitutive instrument, the European Convention on Human Rights.68
Both compliance and enforcement are weakened by loss of legitimacy.69
Tom Franck in his classic exposition of legitimacy in international law
identifies four components of legitimacy that go beyond state consent
and go to the quality, as well as the derivation, of the rule in question: the
certainty and determinacy of a rule; its conformity with accepted forms
and rituals; the conceptual coherence of the system as a whole; and
adherence to right process and normative hierarchy.70 Other objective
indicators of legitimacy might be envisaged, such as those understood as
constituting ‘good governance’ – procedural transparency, democratic
decision-making, reasoned decisions, accountability and review mechan-
isms.71 Where these are present they create the ‘pull’ factors towards
compliance in a legal system lacking enforcement capability.
Within the international arena the power of symbolic legitimacy (or
validation) should not be disregarded. Ian Hurd has pointed to the
symbolic power of the United Nations Security Council (SC).72 Despite

68
Such criticism has even come from senior British Judges; for instance Lord Sumption has
claimed that the European Court of Human Rights ‘exceeds its legitimate powers, usurps
the role of politicians and “undermines the democratic process”’; Bowcott, Owen. ‘Senior
Judge: European Court of Human Rights Undermining Democratic Process’, The Guard-
ian, 28 November 2013, www.theguardian.com/law/2013/nov/28/european-court-of-
human-rights.
69
See Chapter 3.
70
Franck, Tom 1988. ‘Legitimacy in the International System’, American Journal of Inter-
national Law 82: 705–759, 712.
71
Ibid.
72
Hurd, Ian 2002. ‘Legitimacy, Power and the Symbolic Life of the UN Security Council’,
Global Governance 8: 35–51, 48.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 legality and legitimacy 23
its shortcomings as discussed in Chapter 2, the Security Council remains
the global symbol of collective security, and the UN represents the hope
of many whose security is threatened. SC authorisation of the use of ‘all
necessary means or measures’73 thus bestows both legality and symbolic
legitimation on the ensuing military operation. The NATO bombing
campaign against the Federal Republic of Yugoslavia74 in 1999 went
ahead without SC authorisation after Russia and China indicated they
would exercise their veto power;75 NATO states and allies still sought the
symbolic validation of a resolution endorsing the intervention but were
unable to secure this. In turn, Russia (with Belarus and India) sought a
condemnatory resolution, perhaps seeking thereby to counter a claim of
legitimacy of the intervention.76
Similarly, before the 2003 invasion of Iraq, President Bush (apparently
at the urging of Prime Minister Blair) sought an explicit SC vote and
resolution authorising military action; if this had been achieved it would
not only have secured the legality and procedural legitimacy of the
intervention but would also have enhanced its symbolic legitimacy. In
its absence, the intervening states had to justify their action through
strained interpretations of earlier resolutions (thus still seeking that
symbolic legitimacy), the threat of Weapons of Mass Destruction
(WMD) in Iraq and humanitarianism. However, even if procedural
legality of military action in Iraq had been secured through an appropri-
ate UN SC resolution, questions of its moral and ethical legitimacy would
not have been resolved.77
The Iraqi episode also illustrates the fluidity of legitimacy: proponents
of the military action against Iraq claimed the SC itself had lost legitim-
acy through its failure to authorise it,78 while those against such action

73
This is the formula used by the Security Council in resolutions authorising military action
under chapter VII of the UN Charter.
74
In effect Serbia and Montenegro. The International Court of Justice determined that ‘with
effect from 4 February 2003’ the FRY became ‘Serbia and Montenegro’; Legality of Use of
Force (Serbia and Montenegro v. Belgium) Preliminary Objections, 15 December 2004, ICJ
Reports 279, para 1.
75
UN Charter, article 27 (3).
76
Greenwood, Christopher 2002. ‘Humanitarian Intervention: The Case of Kosovo’,
Finnish Yearbook of International Law 13: 141–175, 152.
77
See Craven, Matthew, Simpson, Gerry, Marks, Susan and Wilde, Ralph 2004. ‘We Are
Teachers of International Law’, Leiden Journal of International Law 17: 363–374.
78
Former US Secretary of State Colin Powell told the Security Council on 5 February 2003
that ‘this body places itself in danger of irrelevance if it allows Iraq to continue to defy its
will without responding effectively and immediately’. Cited in ‘The United Nations and

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 24 introduction
considered that the Council had resisted power and by acting in accord-
ance with UN Charter principles had enhanced its legitimacy.79
It may be argued that legitimacy can substitute for legality, but this
exposes a gap between law and the values of at least some members of the
international community, as well as posing questions about the legitim-
acy of the law itself if it is perceived as out of touch with the moral
demands of international society. International law loses legitimacy in
the eyes of local populations, or broader civil society,80 when institutions
fail to respond to certain practices. For instance, in Gaza the population
knows that the violence and denial of basic services they experience are
contrary to the ‘implicit rules’ of international society, as confirmed in
numerous official reports.81 But there is no response. This absence denies
the ‘constant nurturing’ upon which the reciprocity of international law
depends, and thus the law becomes ‘unintelligible’82 and irrelevant.
When law becomes irrelevant or illegitimate, violent solutions are more
likely to be sought and violence escalated.
International law can be described as a language through which states
conduct their relations with other states and indeed with civil society,83
including through institutions. It creates expectations as to behaviour
and thus a predictability in international affairs. States and their military
personnel are likely to require assurance that a particular course of action
is legal, or at least not illegal. This explains why both George W. Bush
and Vladimir Putin have been so anxious to justify their actions in legal
terms – what the Russians describe as Po Zakonu, ‘In accordance with

Iraq: Irrelevant, Illegitimate or Indispensable?’ The Economist, 20 February 2003,

www.economist.com/node/1592138.
79
‘If the Security Council gave America its authority to attack Iraq, the war would become
legal, but for many, perhaps most people, it would still be illegitimate. In the opinion of
huge numbers of Africans, Arabs, Asians and Latin Americans, and not a few Europeans
too, the Security Council would simply be acting as an instrument of American foreign
policy’. Ibid.
80
It must be remembered that civil society, like governments, comprises peoples with
widely disparate views and ideologies who thus do not necessarily share opinions as to
what is legitimate behaviour.
81
See, for example, the annual reports of the UN Human Rights Council Special Rappor-
teur on the situation of human rights in the Palestinian territories occupied since 1967.
82
Brunnée, Jutta and Toope, Stephen 2010. Legitimacy and Legality in International Law:
An Interactional Account. Cambridge University Press, 66.
83
Generally, when we refer to ‘civil society’ we do not only mean NGOs, but include
grassroots groups, social movements, civic institutions and religious institutions, univer-
sities, public intellectuals etc. – that is, peoples concerned with the public interest.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 models of security 25
law’.84 In determining legality, decision-makers (and those affected by
the decisions taken) are likely to start from some common notion of what
constitutes the sources of law,85 its content and its application to par-
ticular facts. Conclusions as to the legality or otherwise of certain actions
may differ depending on such factors as the weight the decision-maker
accords to different sources of law, diverse meanings given to acts or
statements, the intelligence received, which facts he or she deems rele-
vant, and the preferred interpretative techniques. Indeed, different claims
about legality can be construed as competing efforts to establish legitim-
acy for a particular course of action. The gap between legality and
legitimacy is an expression of the absence or the narrowness of shared
understandings. In the twenty-first century, differing world views and
differing conceptions of security help to explain the diversity of claims
for legitimacy. How these claims play out according to different under-
standings about how to respond (or not) to ‘new wars’ is sketched
through the different models of security we describe below and we
explore throughout this book.

1.4 Models of Security

The term ‘security’ is yet another complex idea. On the one hand, it refers
to an objective, a specific conception of ‘safety’. The objective varies
according to the referent (the nation, the region, the world, the commu-
nity, the family, the individual) and how threats or risks, and now
increasingly, ‘challenges’86 to ‘safety’ are defined (armed attack by a state
or by terrorists, other types of violence and crime, disease, material
deprivation of various kinds, disasters, natural and/or those caused
through human activity). On the other hand, in everyday language,
security often refers to a practice – the various institutions and agencies

84
See Reisinger, Heidi and Golts, Aleksandr 2014. ‘Russia’s Hybrid Warfare: Waging War
below the Radar of Traditional Collective Defence’, Research Paper No. 105. Rome:
NATO Defense College.
85
Boyle, Alan and Chinkin, Christine 2007. The Making of International Law. Oxford
University Press.
86
In both 2015 US National Security Strategy and the statement of the EU High Represen-
tative, Federica Mogherini to the June 2015 EU Summit, threats and risks are replaced by
‘challenges and opportunities’. See ‘National Security Strategy’, The White House,
February 2015, www.whitehouse.gov/sites/default/files/docs/2015_national_security_
strategy.pdf; ‘The European Union in a Changing Global Environment’, European Union
External Action Service, 2015, www.eeas.europa.eu/docs/strategic_review/eu-strategic-
review_strategic_review_en.pdf.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 26 introduction
responsible for providing security (armed forces, police, intelligence
services) and the political authorities to whom they report (the state,
international institutions etc.). These two aspects of security are very
much interrelated. Security practices are supposed to respond to the
prevailing understandings of what constitutes security as an objective
(who is to be secured and what are the threats or risks to be secured
against), but by the same token those prevailing conceptions are often
shaped, indeed embedded, in specific security practices. Security is closely
related to legitimacy. The most important task of political institutions is to
provide safety; people accept institutions as legitimate if they believe that
they do provide security. How that belief is constructed, in turn, may
depend on the narrative associated with particular security measures.
In this book we use the concept of security models to illustrate the
different ways that objectives and practices relate to each other.
A security model is a stylised conception of security that combines a
set of objectives and a set of practices that tend to reinforce each other.
Each of the models offers a different response to ‘new wars’, and each has
a different conception of legitimacy and interpretation of the legal
regime – a specific way of addressing the gap between legality and
legitimacy. We sketch out five such models even though each model
contains what might be called sub-models and several are overlapping.
The first security model is called ‘Geo-Politics’. This is the legacy of the
Cold War. The dominant narrative is about great power contestation,
and the dominant tools are deployment and use of regular military
forces, economic sanctions and state-to state diplomacy. The objective
is national security, and the threat is defined in terms of enemies, who are
similar great powers, their allies and proxies. The practices include the
deployment of military forces so as to deter a future war against a ‘peer
competitor’ – Russia, China or the United States and other NATO states
depending on the perspective. A Geo-Political intervention could be
justified in terms of ‘self-defence’, ‘counter-proliferation’ (preventing
the acquisition of WMD by ‘rogue’ states), preserving the security of
the Global Commons, or energy transportation routes against a state
enemy. It consists of classic war-fighting or the threat of classic war-
fighting, including air strikes. Geo-Politics remains the dominant way of
thinking about and structuring capabilities among the major states and
accounts for the maintaining of nuclear arsenals and most defence
spending.
In the Geo-Political model, ‘new wars’ tend to be invisible or irrele-
vant. They are outside or beyond the main confrontation. During the

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 models of security 27
Cold War, there were, of course, many conflicts that could be described
as ‘new wars’, but they were dismissed as minor, as internal expressions
of criminal rebellion, as limited or as situated within the wider geo-
political framework. A recent and disturbing variant of the Geo-Political
model is what has been described as ‘guerrilla Geo-Politics’.87 This
applies to the so-called Gerassimov Doctrine where ‘new wars’ in
Ukraine (and also Georgia) are viewed as means of pursuing geo-political
objectives. In other words, an old war mentality is imposed on what are
effectively new wars, and the war is clothed in terms of geo-political
competition where the warring parties are assumed to be proxies. The
main consequence is to exacerbate those conflicts and to enhance the
sense of insecurity and polarisation that reinforces prevailing geo-
political ideas; for instance, interventions in Crimea and Eastern Ukraine
seem to have increased the domestic popularity of President Putin, which
explains the self-reinforcing character of the model. Similarly ‘proxy
wars’ fought in Syria and Yemen are cases where geo-political interests
have greatly worsened violence at local levels.
The legal regime associated with the Geo-Political model is classic
international law. The main justification for the use of force is self-
defence, and International Humanitarian Law (IHL or the ‘laws of
war’) provides a framework of rules for the way in which war may be
legally fought. The regulation of weapons is relevant in so far as it
constitutes a means of managing competition among the major powers
and preventing the diffusion of weapons to smaller powers.
The second security model can be called the War on Terror. Even
though President Obama abandoned the term, it remains useful because
it emphasises the use of military means and the idea of war-based
security. The objective of the War on Terror is the defeat of enemies,
but, unlike the Geo-Political model, the enemies are non-state actors.
9/11 plays a foundational role in the concept, often compared to the role
played by the 1941 Japanese attack on Pearl Harbor in the Geo-Political
model. The War on Terror has arisen in response to what has been
constructed as ‘asymmetric threats’ or ‘new wars’ (terrorism, insurgencies
and various types of contemporary, largely non-state, violence). As in the
Geo-Political model, the War on Terror is statist and unilateralist. Like
Geo-Politics, the objective of the War on Terror is national (and some-
times global or regional) security but vis-à-vis the risk of terrorist attack

87
Galeotti, Mark. ‘How Far Will He Go?’ The European, 9 September 2014, www.the
european-magazine.com/mark-galeotti/8970-putins-tactics-against-the-west.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 28 introduction
rather than that of an armed attack by a foreign state. In so far as the
practices of the War on Terror are believed to protect against the threat
of terrorist attacks on the public in the US, European and other allied
states, then terror and the War on Terror are self-reinforcing, helping to
establish a mutual sense of threat that legitimises such security practices
as mass surveillance at home and abroad, other human rights abuses and
the use of drones to carry out targeted attacks abroad (but including on
citizens).88
Two broad types of intervention within the framework of the War on
Terror are distinguished. One is counter-insurgency – defeating insur-
gents and/or terrorists with military force. There are, of course, variants
of counter-insurgency campaigns. Heavy handed tactics, such as those
used by Russia in Chechnya, the Assad regime in Syria, the Americans in
Vietnam, Iraq and Afghanistan, or Israel in Gaza in the winter of 2008–9
and the summer of 2014, include strikes on population centres where
insurgents are said to be preparing their attacks, living or hiding. In
contrast, the population security approach of the British in Malaya in
the 1950s or of General Petraeus in Baghdad in 2007 aims to separate the
insurgents from the general population and to protect the latter while
attacking the former. However, it is usually the case that elements of both
approaches are applied; thus British tactics in Malaya also included
bombing campaigns and ‘resettlement’ programmes where the detainees
suffered extreme conditions, while General Petreaus in Iraq ruthlessly
attacked what he called the ‘irreconcilables’. The second is what the
Americans call counter-terror interventions – defeating suspected terror-
ists through intelligence and targeted killings, usually from the air (the
drone campaign). The emerging counter-terror version of the War on
Terror model of security involves a new set of practices: a shift from the
military to a combination of intelligence agencies and private security
contractors and the widespread use of new technologies for mass surveil-
lance, cyber warfare and robotics.
Like guerrilla Geo-Politics, those engaged in the War on Terror
participate in ‘new wars’, although in the case of the War on Terror,
the express aim is defeating terrorists. Thus the primary preoccupation of
the US in Afghanistan from 2001 onwards and in Syria since 2014 is the
defeat of Islamic fighters (Al Qaeda, the Taliban and now IS) rather than
dealing with, or ending, a new war; like Geo-Politics it imposes an old

88
See Chapters 4 and 6.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 models of security 29
war framework (especially the use of military force) on a new war
situation, which merely exacerbates the violence and makes things worse
for the population. In a circular fashion, the growth of terrorism has
merely served to justify the War on Terror, which may well have led to an
increase in mobilisation of and recruitment to extremist groups. Victories
such as those by IS in Syria and Iraq in 2014–15 in turn generate further
recruitment.
Proponents of the War on Terror seek to stretch existing international
law in various ways. In terms of the use of force, the self-defence
justification has been stretched to include anticipation of an unspecified
future attack (in Iraq 2003) and as a response to an attack by non-state
actors (military intervention in Afghanistan after 9/11), airstrikes in Iraq
and Syria since 2014 and Libya in 2016; the conditions for self-defence –
claims of proportionality and necessity – have also been stretched, as, for
example, in the Israeli attacks on Gaza.89 IHL90 has been used selectively
to legitimise the killings of terrorists who are treated as combatants, yet,
at the same time, those detained as terrorists are described as ‘illegal’
(rather than as prisoners of war protected under IHL) to justify their
treatment, in violation of IHL, in Guantánamo Bay, Bagram, Camp
Bucca and other prisons elsewhere. Renditions transporting those sus-
pected of terrorist activities to such prisons are also carried out.91 Con-
straints imposed by occupation or human rights law are also discarded in
the name of security against terrorist or insurgent action.92 Within the
War on Terror model there is little interest in the regulation of
weapons,93 or in post-bellum law.
The third security model is humanitarian intervention or the Respon-
sibility to Protect. Interest in humanitarian intervention grew during the
1990s as a response to humanitarian tragedies in ‘new wars’ in places like
Bosnia and Rwanda. The term ‘Responsibility to Protect’ was conceived
by the International Commission on Intervention and Sovereignty94 after
the NATO intervention in Kosovo in 1999 as a way of recasting humani-
tarian intervention in terms of states’ responsibility for their own citizens

89 90
See Chapter 4. See Chapter 6.
91
El-Masri v. The Former Yugoslav Republic of Macedonia, ECtHR GC application
no. 39630/09, 13 December 2012.
92 93
See Chapter 8. See Chapter 7.
94
Report of the International Commission on Intervention and State Sovereignty 2001. The
Responsibility to Protect. Ottawa: International Development Research Centre.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 30 introduction
and the international community’s responsibility to all people facing
extreme human rights violations.95
In this model, there is a contradiction between the objective and the
practice. The objective is the safety of individuals and communities in the
case of genocide, crimes against humanity, war crimes and ethnic
cleansing. The assumed practice in extreme cases and after other efforts
have failed is that there will be military intervention by states and groups
of states, often from the air.96 Such interventions risk the lives of those
they are they are supposed to be saving and may exacerbate violence on
the ground. In both Kosovo and Libya the intervening forces ‘won’ in the
sense of defeating governments who were responsible for massive viola-
tions of human rights, but they also entrenched armed groups and left a
legacy of bitterness, polarisation and further violence. Thus it shares with
the previous two models a preoccupation with ‘enemies’ and presupposes
that ‘old war’ methods can be used to meet humanitarian objectives in
new wars.
The Responsibility to Protect seeks a change in the international legal
regime to allow the international authorisation of the use of force for
humanitarian purposes. In the context of actual intervention, it assumes
conformity with IHL and post-bellum law.
The fourth security model, the ‘Liberal Peace’, is associated with a
body of what may be described as post-bellum law, or the law of peace.97
It is also in keeping with efforts to regulate the weapons of new wars,
sometimes known as humanitarian arms control.98
The Liberal Peace comprises a dramatic increase in multilateral inter-
ventions since the end of the Cold War: the expansion in the mandate
and missions of multilateral interventions; the emerging security roles
played by newly configured regional and global actors such as the United
Nations, the Organisation for Security and Cooperation in Europe
(OSCE), the European Union, the African Union, the Economic Com-
munity of West African states (ECOWAS), South African Development
Community (SADC) and the Commonwealth of Independent States

95
See Chapter 5.
96
The Responsibility to Protect involves four pillars, only the last of which is military
action. But discourse is engaged around this, even in cases where no such action is
undertaken as in Syria from 2012 onwards. In reality there have been few examples of
such military intervention; see further Chapter 5.
97
Bell, Christine 2008. On the Law of Peace: Peace Agreements and the Lex Pacificatoria.
Oxford University Press.
98
See Chapter 7.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 models of security 31
(CIS); and the construction of a narrative that is based on various key
documents such as the Agenda for Peace published by the United Nations
Secretary-General Boutros-Boutros Ghali in 1992, the Report of the Panel
on United Nations Peace Operations (Brahimi Report) in 2000 and the
Report on High Level Peace Operations in 2015.99
The difference between the Liberal Peace and the previous three
models is the preoccupation with stability as opposed to enemies; in
principle, security is achieved through establishing stability rather than
by defeating an enemy. The objective in this case can be national,
regional or global security. The Liberal Peace culture also involves a
new set of actors: a range of international agencies, the deployment of
peacekeeping forces, private contractors, NGOs and a variety of different
(non-military) actions including reconstruction and state-building
efforts. The Liberal Peace model is both statist and multilateralist. It is
grounded in the liberal principles of democracy, the rule of law and
human rights in the conviction that ‘democracy provides the best
chances of internal stability, as well as a peaceful international order’.100
The Liberal Peace model directly addresses new wars but clothes new
wars in old war garb. The centre piece of the Liberal Peace is peacemak-
ing, the peace process, resulting (if successful) in a peace agreement,
which often takes the form of, or basis for, a domestic constitution. An
agreement among the warring parties is the objective and is sometimes
reached and given a legal veneer; however, it entrenches the positions of
those responsible for extremist identity politics, violations of human
rights and predatory economic activities. The security apparatus of the
Liberal Peace is thus used to sustain the peace agreement. The conse-
quence is to dampen overt clashes but not to end the mutual enterprise
that constitutes new wars. Like the previous models, the Liberal Peace
starts from old war assumptions, treating the warring parties as though
they were states and presupposing that war consists of a clash of wills
rather than a mutual enterprise. As we spell out in Chapter 9, the
evidence suggests that the Liberal Peace has been relatively successful
in ending open warfare in probably about half of cases, but, despite the

99
United Nations Security Council. ‘Report of the Panel on United Nations Peacekeeping
Operations’, UN Doc. A/55/305–S/2000/809, 21 August 2000; Report of the High-Level
Independent Panel on Peace Operations on Uniting Our Strengths for Peace: Politics,
Partnership and People, UN Doc. A/70/95–S/2015/446. 17 June 2015.
100
Hay, Emily 2014. ‘International(ized) Constitutions and Peacebuilding’, Leiden Journal
of International Law 27: 141–168, 149.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 32 introduction
commitment to liberal values, is much less successful in ensuring the
long-term safety of individuals and communities. It may involve sustain-
ing corrupt regimes in the name of stability.101
The final model is what we term second generation Human Security.
Human Security is about the safety of individuals and the communities
in which they live. First generation Human Security involved a debate
between broad and narrow versions. The broad version evolved from the
development community and the idea that resources freed up from
the end of the Cold War could be used for economic and social develop-
ment. Threats to the safety of individuals and communities included the
threat of material deprivation, and the emphasis was on prevention of
new wars by strengthening state institutions and enhancing develop-
ment. The narrow version was associated with the human rights move-
ment and was about protecting people from the human rights violations
that are central to new war tactics; thus the narrow version became
associated with the Responsibility to Protect.
Second generation Human Security puts the emphasis on implemen-
tation. Human Security is what individuals enjoy in rights-based law-
governed societies. Implementation is about extending this form of
security globally. In contrast to the Responsibility to Protect, which is
by definition top-down and, despite its reformulation as a responsi-
bility, remains essentially about the right of states to intervene, Human
Security is about the right to be protected and focuses on bottom-up
efforts to provide security to individuals and how this might be assisted
from outside. In contrast to Liberal Peace, which is about collective
stability, Human Security focuses on the individual, men, women and
their families and communities. In the context of new wars, Human
Security involves locally negotiated ceasefires and/or locally protected
safe areas, encompassing a range for political, economic and social
initiatives as well as justice mechanisms. Outside assistance might
involve humanitarian corridors; meaningful international guarantees
for safe areas; mediation and monitoring; documentation and access
to justice. In so far as international peacekeepers are deployed in
Human Security roles, their rules of engagement would be more like
policing than military action, even though a robust use of force might
sometimes be required. Their goals would be protection of civilians, the

101
Chayes, Sarah 2015. Thieves of State: Why Corruption Threatens Global Security. New
York: W. W. Norton & Company.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 models of security 33
saving of all lives and the arrest of those responsible for criminal acts
rather than killing or defeating enemies.
All the models have a gendered dimension since security is a gendered
concept.102 The focus on individual (as opposed to state) security in the
Human Security model, however, more readily allows for explicit recog-
nition of this. The ways in which women experience insecurity differently
from men, as well as the role of women as civil society activists, medi-
ators or peacekeepers and, more broadly in challenging existing gender
roles and reconstructing gender relations, are of key importance. In this
model, protection and rebuilding, economic and social rights, as well as
political and civil rights would all receive emphasis.
As we spell out in the final chapter, second generation Human Security
would mean, in international law terms, representative and accountable
international authority for the use of force, the recasting of war as a
humanitarian catastrophe and a massive violation of human rights, the
recasting of self-defence as scaled-up self-defence of individuals not
states, and the application of human rights law, as well as IHL, to any
use of force (or to put it another way, the use of force within the
constraints of rights-based policing rather than military type rules of
engagement). Such an approach would also need to involve large-scale
disarmament. In other words, the only permissible use of force would be
in cases of massive violations of human rights, but rules of engagement
would be much tighter than for classic military force as they would have
to conform to human rights.
Our argument is that Human Security is the only practical solution.
The failure to take into account the logic of new wars and the persistence
of old war thinking has undermined the potential of other models to
achieve their security objectives. The first two models (Geo-Politics and
the War on Terror) may (for a time) succeed in their own terms
(reinforcing popular ideas of security within particular countries), but
they only worsen the duration and violence of new wars. The second two
models (the Responsibility to Protect and Liberal Peace) are unable to
achieve their objectives of addressing new wars because of the old war
assumptions that underlie their practices. Second generation Human
Security is not about utopian ideas but concrete ways of addressing
current predicaments. At the heart of the Human Security model is the

102
Olonisakin, ‘Fummi, Barnes, Karen and Ikpe, Elke 2011. Women, Peace and Security:
Translating Policy into Practice. Routledge.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 34 introduction
postulation that war as the use of force among collectivities is wholly
illegitimate in both old and new guises.

1.5 Plan of the Book

This argument is developed through two parallel tracks. First, the book
provides an introduction to the international legal regime relating to the
regulation of violence, and second, it develops the different models in
relation to various aspects of international law. Part I of the book sets out
the conceptual foundations. Chapter 2 discusses the changing nature of
sovereignty in a global era and shifting conceptions of ‘right’ authority to
use force. It argues that a fundamental shift took place after 1945, when
war was made unequivocally illegal for the first time. Sovereignty was
always based on the classic distinction between the ‘outside’ (the world of
anarchy with no single authority) and the ‘inside’ (the world of domestic
order where the state is construed as the supreme power). Globalisation,
which to some extent is a consequence of the prohibition on war, has
involved a blurring of the inside and outside. The chapter describes how
the authority to use force is interpreted according to different models of
security and what these differing understandings of the inside/outside
distinction imply for conceptions of sovereignty and world order.
Chapter 3 sets out the premise of the book that international law is a
form of discourse that is not so very different from domestic law,
especially in the context of globalisation. We adopt a constructivist
understanding of this discourse whereby international law is under-
pinned by what Jutta Brunnée and Stephen Toope call ‘shared under-
standings’103 developed through state socialisation or among
‘communities of practice’, or what Jürgen Habermas calls ‘reciprocal
perspective-taking’.104 We review the main theories of compliance with
international law, followed by a discussion of the mechanisms for com-
pliance – institutionalisation, enforcement, implementation and judicia-
lisation. Our argument is that the different models of security depend on
who is involved in the ‘communities of practice’, and thus they also
involve different mixes of mechanisms of compliance.

103
Brunnée, Jutta and Toope, Stephen, op. cit., 15. See further Chapter 3.
104
Habermas, Jürgen 2006. ‘Interpreting the Fall of a Monument’, in Bartholomew, Amy
(ed.). Empire’s Law: The American Imperial Project and the ‘War to Remake the World’.
London: Pluto Press, 44–51, 51.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 plan of the book 35
Part II deals with the contemporary laws relating to the use of force
(jus ad bellum). Chapter 4 is about the self-defence exception to the
prohibition on the use of force. It focuses on how jus ad bellum –
forged in old war terms – has been applied in in recent decades,
notably the War on Terror. It shows how the concept of self-defence
has been stretched in terms of interpretations of imminence, necessity
and proportionality and by the assumption that attacks by non-state
actors can constitute an armed attack and that states have the right to
act in self-defence of their alleged nationals (non-state actors) in other
countries. It concludes by suggesting that either more conservative
interpretations of self-defence need to be upheld or else ‘armed attack’
needs to be reconceptualised as a crime against humanity and
responded to as such.
Chapter 5 is about the use of force in response to massive violations of
human rights and the Responsibility to Protect model. The chapter
surveys the experiences of this type of intervention over recent decades.
It argues that any intervention in the name of human rights must
conform to human rights and that as currently conceived the Responsi-
bility to Protect is more about the roles of the dominant powers than
about the rights of those to be protected.
Part III is about the means and methods of warfare (jus in bello and
weapons law). Chapter 6 is about how force is used in all these situations.
It argues that IHL is based on ‘old war’ assumptions. It describes how this
legal regime has been distorted, especially in the War on Terror. It also
deals with the differing legal regimes applicable in conflict (in bello) and
makes the argument, in particular, that the human rights regime has to
be applied alongside IHL in ‘new wars’.
Chapter 7 is about different legal regimes relating to weapons. It sets
out three different but overlapping approaches: ‘arms control’ is about
reducing the risks associated with the use, deployment and possession of
particular weapons by states largely associated with the Geo-Political
model; the humanitarian approach, which aims to alleviate suffering in
war, is largely associated with the Liberal Peace; and the disarmament
approach is based on the idea that the way to prevent war and the
violence to individuals associated with war is to eliminate the means of
fighting war. In the post–Cold War period, there have been significant
initiatives in both the arms control and humanitarian approaches aimed
primarily at weapons possessed by non-state actors. The chapter argues
that for Human Security, the humanitarian approach needs to be com-
plemented by disarmament.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press

 36 introduction
Part IV is about post-bellum regimes. It comprises three chapters,
which are largely about the Liberal Peace model. The chapters introduce
the emerging body of what is known as post-bellum law. Chapter 8
discusses the misnomer ‘post-conflict’ and analyses models of so-called
post-conflict governance. Chapter 9 discusses peacemaking, peacekeep-
ing and peacebuilding; the chapter argues that the shortcoming of the
Liberal Peace model has to do with the way it is underpinned by ‘old war’
assumptions, including the very notion of a post-bellum phase. It makes
the argument that peace agreements often entrench power holders who
have an interest in subverting peacemaking and peacebuilding efforts.
Chapter 10 addresses transitional justice and the accountability of those
engaged in these activities; it argues that international mechanisms of
justice and accountability are often weakened by Geo-Political and War
on Terror considerations, and this, in turn, diminishes the potential of
such instruments in ‘new war’ contexts.
Part V is about the way forward. Chapter 11 is about second gener-
ation Human Security. It provides a brief history of the concept of
Human Security and addresses the critiques. The distinctive element of
second generation Human Security is the way it draws on a rights-based
international legal regime and focuses on implementation. The final
concluding chapter draws the various arguments together and outlines
the elements of a legal regime that would need to be developed as part of
the Human Security model. The chapter asks what human security
requires of international law. Our objective is to reopen the debate about
how to address contemporary seemingly pervasive manifestations of
violence in ways that are not pre-determined by assumptions and habits
inherited from the past.

https://doi.org/10.1017/9781316759868.002 Published online by Cambridge University Press