THOMAS P. KEENAN MEMORIAL LECTURE[^1]

**THE DEMISE OF THE NATION-STATE, THE DAWN OF NEW PARADIGM WARFARE, AND
A FUTURE FOR THE PROFESSION OF ARMS**[^2]

[Lieutenant Colonel Jeffrey K. Walker]{.smallcaps}[^3]

# 

Let me begin by expressing my sincerest appreciation to my many
distinguished colleagues within the Air Force international and
operations law community and to the Commandant and faculty of the Judge
Advocate General's School for bestowing this honor upon me. To be given
an award bearing the name of a distinguished gentleman, scholar, and
jurist like Tom Keenan is truly humbling. He was a man of great humor
and enormous intellect---noted equally for his rapier pen and his razor
wit. What little contribution I may have made to the discipline is but a
drop in the ocean compared to Mr. Keenan's life's work. With his passing
just a few years ago, we lost one of the finest members of our
profession.

On a grander scale, today we are witnessing the inevitable passing of
that "Greatest Generation," the generation that rescued the world from
the brink of darkness in the Second World War, then carried the burden
of securing democracy around the world for those of us who follow. It is
with great sadness that I have buried nearly all my personal heroes from
that generation within the last few years: my father, who fought with
MacArthur in the retaking of the Philippines; my Uncle Pat, who flew
Hellcats from the decks of carriers in Admiral Nimitz's Pacific
Fleet---and who was the main reason I became an Air Force aviator; and
most recently, my father-in-law, who shipped out in January 1943 as a
young Marine F-4U mechanic with Pappy Boyenton's fabled Black Sheep and
ended his service three years and several islands---including
Guadalcanal---later in China. When I contemplate the enormity of what
these many heroes accomplished, I am reminded of something written by a
12^th^ century medieval jurist who, after years of working with the
recently rediscovered law texts of Justinian, cried out in equal
measures of admiration and despair: "We are but midgets standing on the
shoulders of giants!" I can think of no more appropriate professional
epitaph for Thomas P. Keenan, one of the true giants of our discipline.

# I. INTRODUCTION

Today I would like to discuss some Big Ideas---but Big Ideas that are of
enormous practical importance to international lawyers in particular and
military judge advocates in general. The two Big Ideas that I would like
to examine with you today are---and I will surely not be accused of
understatement---the death of the sovereign state and the end of armed
conflict as we have known it. After looking at these Big Ideas, I would
like to say something about what these mean to us as soldiers, officers,
and jurists. With that admittedly ambitious mandate, let me begin with
the death of sovereignty.

# 

# II. Post-Westphalian World?

It has become somewhat trendy within international law and political
science circles over the last few years to speak of the post-modern or
"Post-Westphalian" international order.[^4] The argument usually runs
something like this. The international system has, since the Peace of
Westphalia in 1648, contained only one type of relevant actor---the
sovereign state run by a government in exclusive charge of a
geographically defined territory and people. This resulted from the
horrible depravations wrought by the religion-charged Thirty Years'
War---that final and tragic denouement of the Reformation. Although it
took thirty bloody years to figure out, the European powers came to the
realization that trying to impose one's own ideas of what was
spiritually correct---like Lutheranism or Calvinism or Catholicism---on
someone else's subjects was a formula for producing unspeakable
violence. The theory therefore ran for 350-odd years, based on the
original 1555 Peace of Augsburg rule that the religion of the sovereign
determined the religion of the state, that within their own borders,
sovereigns could do as they pleased. Admittedly, this rule was as often
honored in the breach as in the observance, but that is what we had as a
basic international system for the better part of four centuries.

During the Cold War, since the Superpowers could not engage in direct
confrontation---the risk of escalation to a nuclear exchange being
viewed as too great---they settled instead for a somewhat perverse
system of nose-counting. The idea was to see how many supposedly
sovereign states you could get into your particular ideological
camp---reminiscent of the 18^th^ and 19^th^ century era of colonial
expansion when there was great concern among the European colonial
powers to "paint the map red," if you were English,[^5] or some other
appropriately jingoistic color if you were French or German or Dutch (of
course, the colonial powers did not generally view the supposedly
primitive sovereignty of indigenous peoples as worthy of consideration).
It was a similar Cold War race to accumulate client states---rather than
outright colonies---that led to the many small but nasty Superpower
surrogate conflicts like Korea, Vietnam (twice), Cuba, El Salvador,
Nicaragua, Malaysia, Angola, and Afghanistan. From the American
perspective, these conflicts were viewed as a righteous crusade to halt
the march of Communism---enforcing the containment theory and keeping
the democratic dominoes from falling. From the Russian viewpoint, these
otherwise peripheral skirmishes were seen as propagating the socialist
revolution or keeping solidarity with the international proletariat or
manifestations of some Marxist-Leninist dialectic. Of course, the more
cynical *real*-politicians or neo-imperialist theoreticians would argue
that the Cold War era was just about the aggrandizement of national
power or a continuation in a nuclear age of the same Euro-American
imperialism that characterized the 19^th^ century.[^6]

In contrast, the *post*-Westpahalian idea is that: 1) what a sovereign
does to his own people isn't *necessarily* his own business---and other
states may rightfully intervene under certain conditions; 2) *non-state
entities* such as international organizations, regional alliances, and
non-governmental organizations have a place at the international table;
and 3) there are some *universally applicable ideas* that no one gets to
reject, such as the inherent right of persons to fundamental human
rights, the right of peoples to self-determination, and perhaps the
right of everyone to democratic governance and environmental protection.

These post-Westphalian ideas are, as one might expect, not without
vigorous detractors and dissenters. Smaller and less powerful states
fear intervention by stronger states on the pretext of upholding
post-Westphalian ideas. Asian and African states often see this as just
another manifestation of the hegemony of Western notions of right and
wrong---a kind of ideological imperialism. Islamic states have for some
time disputed the true universality of some so-called fundamental human
rights principals.[^7]

Regardless of dissent and the ultimate contours of the post-Westphalian
system, however, the old and exclusively state-centric system is in its
final death throes.

# 

# A. The End of the Nation-State as The Exclusive Actor Within the International System

The old Westphalian days are over, and indeed have been, in practice if
not theory, since the end of the Cold War. This brings me to a point
that must be made early and often---the end of the credible threat of a
nuclear exchange between Superpowers capable of annihilating each
other---and probably the entire world in the process---is a watershed
moment in modern history. It is often difficult to discern when one's
own time is of great historical importance---every generation tends to
overestimate their place in history, but when the very survival of the
species hung in the balance for the first time in the history of
mankind, all else seems pale in comparison. But those bad old days are
gone---hopefully forever, and new and sometimes frightening
possibilities have emerged. It is those possibilities upon which I would
like to focus.

# B. Increasing Global Economic Interdependence

It is simply incorrect---and getting less correct every day---to say
that sovereign states are the only relevant actors within the
international system. Today, there are many forces that pull mightily at
the fabric of this time-worn monopoly of individual states. First and
foremost among these forces is a rapidly broadening and deepening global
economic interdependence. The paradigm example of a surrender of state
sovereignty in the economic arena is, of course, the European Union.[^8]
It's somewhat ironic that the only real contemporary competitor to the
economic might of the United States is an institution the US was
instrumental in forming. It was as a precondition for the receipt of
Marshall Plan aid that France and Germany formed the European Coal and
Steel Community, the direct ancestor of the present day European Union.
Today, the EU is moving almost inexorably toward deeper social and
political union, with only a few self-selected and self-marginalized
laggards like the United Kingdom and Denmark resisting. Soon, even one
of the most emotional and tangible symbols of state
sovereignty---national currency and coinage, will either disappear or
undergo a radical transformation within the Euro monetary area. Even the
brass in your pocket will no longer identify you as a Frenchman or a
Spaniard or a German.

It is somewhat astonishing that the hitherto distrusting and often
violent states of Europe have come together in such tight economic and
political union, such that it is hard to imagine Germany and France
resorting to arms over Alsace or the Saarland, as they have periodically
ever since Charlemagne's grandsons divided the Frankish empire. Why
bother when there is no border, other than an anachronistic and largely
nostalgic line on a map, separating them anyway? For those who came of
age in a pre-World War world, such an eventuality not only seemed
possible, it was downright inevitable.

But we should look beyond the EU. Do not underestimate the enormous
influence on US, Canadian, and Mexican politics of the North American
Free Trade Area. Although the southern expansion of NAFTA has not been
without problems and resistance within the US, there seems little chance
of undoing what has been done to date. Anyone familiar with the amazing
cross-border activity between south Texas and the *maquilladoras* areas
across the border would emphatically agree, I believe. The remarkable,
albeit somewhat tentative, consensus reached at the Summit of the
Americas just a few months ago in Canada---with only a half-hearted
dissent from Venezuela (an OPEC member and major oil exporter), that a
Free Trade Area of the Americas was an objective to be sought for the
entire Western Hemisphere shows the dynamism of the movement to more
open trade relationships closer to home. The last gasp of US opposition
to hemispheric free trade---the ill-fated and slightly comedic candidacy
of Ross Perot with his apocalyptic warnings of a giant economic sucking
sound were the US to allow Mexico into NAFTA---has not found any serious
traction in today's political environment.

Economic interdependence runs much deeper, however, than just these
formal regional arrangements. Literally scores of international bodies
have made significant and at least tacitly consensual inroads on
individual state sovereignty: the WTO,[^9] where trade disputes are
authoritatively adjudicated and effectively enforced; the World
Intellectual Property Organization, where international patent and
trademark policy is set and enforced; meetings of the world's major
central bankers, where interest rate and inflation targets are set; the
G-8,[^10] where much international economic policy is hammered out; the
association of the world's stock markets, where international trading
and settlement rules are determined; transnational anti-trust
enforcement, that makes it increasingly impossible for state governments
to coddle and protect national corporate darlings; the domination of
world investment flows by a handful of multinational banking
conglomerates, whose allegiance is to shareholders and bottom lines, not
sovereigns; or development and marketing of drugs by just a few
multinational pharmaceutical companies, with enormous impact on
everything from the worldwide price of aspirin to the availability of
anti-AIDS drugs in Africa. These are just a few examples of bodies or
organizations or informal groupings that wield significant influence
over large swaths of the world economy.[^11] Each and every one
represents a whittling away of traditional notions of state sovereignty.
We have reached the antithesis of 18^th^ century mercantilism, when
states attempted to tightly control their economies in a conscious
attempt to beggar one's neighbor, and have in the last few decades
witnessed the apotheosis of international free market capitalism.

But on an even grander scale, economic interdependence has fundamentally
changed the way macroeconomics work. It is no longer a truism that when
the US sneezes, the rest of the world catches a cold. In fact, it is
widespread global economic interdependence that has smoothed out some of
the heretofore unavoidable pitfalls of the world economic cycle. For
example, the enormous national debt run up during the Reagan and Bush
years did not trigger sky-high interest rates domestically because there
was a lot of foreign capital floating around at the time---mostly
Japanese---willing to buy up piles of US government notes without
jacking up the cost. The free-spending US consumer helped stave off a
general collapse of the Asian economies in the late '90s after some
notable economic disasters in Thailand and Indonesia. A reliable EU
economy has helped lessen the impact of the dot-com meltdown in the US
over the past year. Even the mighty New York Stock Exchange has shown
itself highly sensitive to economic events overseas---in reality having
now become a world bourse discounting future risk for a world economy.

# 

# C. Free Movement of People, Information and Ideas has Erased Borders and Controls

Related to but separate from economic interdependence, the movement of
people and ideas has also accelerated since the end of the Cold War.
Borders of every state---with the exception of only the most autarkic
countries like North Korea---have become remarkably permeable. Legal
immigration is enormous within the US and most other developed
countries. As just one example, recent census results revealed that my
zip code in northern Virginia---22032---has seen the influx of nearly
1,000 new legal immigrant residents in just the last ten years. Due
largely to immigration, Hispanic Americans are now the single largest
minority group in the US, surpassing African Americans for the first
time. Although this is not new in the United States, a country built by
successive waves of immigration, the ease and rapidity of modern day
immigration is remarkable.

Intercontinental travel has become commonplace, with airfares from
Washington to Europe now often cheaper than flights to Los Angeles and
without much difference in time. The Channel Tunnel has effectively
ended the geographic, and the much more daunting psychic barrier of the
English Channel between the Great Britain and the Continent. It is now
routine practice for Londoners to spend the day shopping or touring in
Paris, returning at night to their own beds. The adoption by most EU
members of uniform entry requirements has lead to the elimination of
border checks between, say, Germany and France or Italy and Austria.
Traveling across much of Western Europe is now equivalent to driving
from Ohio to Wisconsin. The result of all this is that somewhere around
two million people cross an international boundary every day---the US
alone hosts over 110 million visitors a year.

This frenetic and almost frictionless movement of people combines with
another new development in the international system, the free and rapid
movement of ideas and information, with the result that there just are
not too many secrets any more. Every corner of the globe is subject to
the 24-hour news cycle---today even in the most remote reaches of the
world, one can find a hotel with CNN. The internet and the world wide
web have, at least as far as information and ideas are concerned,
completely eliminated borders as well as distance.

This revolution---and it is undeniably a revolutionary development---in
the movement of people, information, and ideas has had, in my opinion,
two significant effects. First, state governments, even those
controlling the most closed or authoritarian societies, can no longer
escape notice. Be it interethnic genocide in Rwanda or Bosnia,
deliberate famine in Somalia, the desecration of ancient Buddhist
carvings in Afghanistan, or government corruption in the Philippines, it
makes it to the television screens and newspapers of a global audience
near real-time. Some states have tried to resist---China, for example,
persists in attempting to regulate access to the internet, but with
remarkably poor results. An instructive example of the futility of
fighting the tide of information technology was the Tiannamen Square
debacle in 1988. In that long-ago, pre-internet day, dissent groups kept
the world apprised of events in Beijing through the use of fax machines.
So the first major impact on sovereignty is the plain fact that would-be
bad actors can no longer do dirty deeds in the dark.

The second, and I think more important effect of this revolution in the
movement of people, information, and ideas is that what we are now
beginning to witness is the capability for the formation of
*instantaneous transnational communities of interest* around almost any
issue---big or small. It's simply no longer necessary to have a state
sponsor for an interested group of people to effect changes within the
international community. Anthony Lake, former national security advisor
to President Clinton, described this phenomenon as "technology enabling
local groups to forge vast alliances across borders, and

. . . a whole host of new actors challenging, confronting, and sometimes
competing with governments on turf that was once their exclusive
domain."[^12]

A very good example of this can be seen in the way the Ottawa Convention
banning anti-personnel landmines (APLs) came to fruition. In the early
1990's, there were not too many important states much interested in
undertaking a ban on APLs. However, in the wake of several civil
conflicts that left enormous numbers of APLs scattered willy-nilly over
the countryside, and the inevitable number of deaths and maiming
injuries to farmers, children, and other innocents, the world NGO[^13]
community took up the cause. Helped by some influential persons---the
Princess of Wales for one, the movement gathered momentum. Through
internet activities, transnational cooperation between NGOs, and
skillful use of the media, an incredibly effective transnational
community of interest sprang up to push for an APL ban. This movement
co-opted several national governments through the very attractive
political appeal of ending injuries to children and others from APLs.
Canada was a prime example of a state government recruited into the
effort.

The US government, and particularly the DoD and State Department, were
caught somewhat unaware by the remarkable speed with which this effort
gained inertia. The result was that the overwhelming majority of state
governments, some dragged along quite reluctantly (like the British) by
what their political leadership saw as irresistible public opinion,
joined the Ottawa Convention. The US ultimately refused to
join---thereby costing a significant amount of good will with our usual
allies and causing difficulty in coalition operations today. Ironically,
an American woman would win the Nobel Prize for her efforts in
mobilizing the anti-APL transnational community of interest. Anthony
Lake summed up the Ottawa campaign as, "The international campaign on
landmines, coordinated through computer links from a house in Vermont,
forced an issue on many governments that would have rather avoided
it."[^14]

#  

# D. Loss of Control Over the Physical State: Things Fall Apart?

So our beleaguered nation-state (as was the trendy term for countries
when I studied political science in the late '70s) has essentially lost
control over its economy and can no longer effectively control the
movement of information and ideas through and within its borders.

Could it get any worse for our nation-state? Well, yes it could.

Quick on the heels of the end of the Cold War, the rapid growth in
economic interdependence, and the revolutionary expansion in the
movement of information came the resurgence of group identification
below the state level. When physical or political or economic survival
had been in question, people were more or less willing to sacrifice
smaller group impulses for effective membership in a militarily and
economically viable nation-state---it was just the price that had to be
paid to keep a hostile neighbor or would-be hegemon from dominating
significant parts of the world. In short, grudging acquiescence to
domination by people *kind of* like us was preferred to subjugation to
people very alien to us. This really began in response to
Napoleon---Germany is a prime example of 'kind of' similar peoples---and
continued more or less unabated until the end of the Cold War.

Once the survival threat of the Cold War was removed, the bottle was
uncorked and the genie of national self-determination reappeared bigger
and more intractable than ever. The rapid disintegration of the Soviet
Union was perhaps the greatest example---although many of the peoples of
the Union arguably did not even grudgingly acquiesce to Russian
domination. The sad case of Yugoslavia is another example---a federation
of peoples that, if history is any guide, would have been at each
other's throats but for the fact they were wedged between Russian
socialist and Western capitalist hegemonic powers.[^15]

Interestingly, economic interdependence has actually hastened the
centrifugal forces of self-determining nationalism---and in some very
interesting places. Italy, from unification in the 19^th^ century of a
country patched together on vaguely linguistic and cultural grounds, has
seen the rise of an influential northern separatist party, the *Lega
Nord*, that has held the balance in government on one occasion and may
well do so again. A powerful and---unlike the Basques in the
north---non-violent Catalan separatist movement has sprung up in the
area of northeast Spain centered on Barcelona. Most interestingly, the
government of Tony Blair in the UK has delivered on an election promise
to devolve powers from the center to regional assemblies in Wales,
Scotland, and Northern Ireland. The success of these efforts in Scotland
is manifested by the fact that the avowedly separatist Scottish National
Party is now the official opposition in the Edinburgh Assembly. As a
result, it is not an unreasonable possibility that we may see the end of
the United Kingdom in our lifetimes.

One characteristic these European nationalist-separatist movements have
in common is an appeal that runs something like this. "We're all in the
EU now. Tiny Denmark and tinier Luxembourg are in the EU as well. Our
would-be independent country has a population and economy equal to or
greater than Denmark or Luxembourg, so why can't we go it alone within
the EU, too?" Coupled with the fact that more and more of the
traditional functions of the central state government are now performed
in Brussels---labor and monetary policy, safety and health regulation,
environmental and business standards---this idea of finding one's own
way within the EU framework is attractive to many.

So the supposed sovereignty of our beleaguered nation-states continues
to be undermined by increasing economic interdependence, the
instantaneous and unimpedable flow of information and ideas, and the
centrifugal forces of separatism. Of course, this is not to gainsay any
future role for the state as we know it---just a greatly changed and
vastly reduced role.

# E. What Will Wars Look Like in a Post-Westphalian World?

So much for the issue of state sovereignty in the post-Westphalian
world. What changes are underway concerning the military and the waging
of war?

Operation DESERT STORM represented, at the same time, both the last
great traditional war and the first future war. Although somewhat
oxymoronic, DESERT STORM was both the end and the beginning of warfare
as we know it. It was a classic war of the past with its grand climax of
massed movements of armor and soldiers over a vast strategic chessboard
of desert---and also because of the enormous amount of time, effort, and
logistical support required to pull it off. At the same time, just as
the American Civil War and the Franco-Prussian War provided chilling
previews of the industrial warfare of World War I, DESERT STORM provides
a glimpse of what armed conflict will look like for the foreseeable
future. It's fairly widely acknowledged that DESERT STORM was all but
won by the air campaign, a war waged---at least after the first few
nights---with near impunity by coalition air forces.

The 1995 DELIBERATE FORCE (Bosnia) and 1999 ALLIED FORCE (Kosovo) air
campaigns in the Balkans were the natural extension of the lesson
learned from DESERT STORM that air power could be the dominant maneuver
force, and in the case of the Kosovo campaign, the *only* maneuver
force. However, this should not give airmen cause for hubris---ALLIED
FORCE also demonstrated many weaknesses in air-only warfare. Air forces,
for example, cannot occupy land and have great difficulty flushing out
land forces determined to hide. So the conflicts of the future, like the
smaller peacekeeping missions of the past, will require more tailored
military responses---not the armor-heavy and logistic-intense war we
trained for throughout the last 50 years.

Why do I think we won't face big, heavy, traditional military operations
in the foreseeable future? Mostly because I subscribe to the idea of the
democratic peace---first put forward by Michael Doyle, but refined by
other academics. The democratic peace theory holds that historically
democracies don't start many wars and---of equal
importance---democracies don't often fight each other. Although this
theory can be oversold, it holds an essential nugget of truth. So if we
are now at that moment, as Francis Fukyama has said, of an end to
history[^16]---meaning the universal victory and ascendancy of liberal
democracy, there isn't much chance for big wars between democracies.

There are still not insignificant risks that this blissful state of
affairs may go off the rails. The enormous wild card in the deck is most
certainly China. The ultimate victory of democracy in China is, in my
opinion, still more likely than not, but it is a shaky proposition. If
we can keep anything nasty and violent from happening with China for
another half-generation---until all the first-generation Maoists and
octogenarian leadership dies off---there may be a good chance for
democracy in China. Free market economics has already taken hold to the
point that the most reactionary and thuggishly committed communist
leader could not turn back the clock now. So let's remain hopeful, but
keep our powder dry.

There are other possible stumbling blocks along the way---too many Arab
states going over to an intolerant and---I specifically mean this next
word, *aberrant* form of Islam, a sudden collapse of markets and hope in
Russia, or perhaps anarchy in Indonesia. But barring any enormous
upheavals, and it should be the US's business to work very hard to
prevent any such upheavals, the conflicts of the near- to mid-term
future should be ones with limited objectives, limited stakes, and
commensurately limited means.

# F. The Luxury of a Conscience

It seems likely that the Western powers, including the US---contrary to
the campaign promises of the Bush administration---will continue to get
involved in the limited conflicts that do pop up. The end of the Cold
War, after all, has now given the West the luxury of a conscience. With
the end of a bipolar system of closely aligned client states glued
together by the threat of nuclear Armageddon, we now have the leisure to
indulge our Enlightenment ideals of protecting universal human rights
and securing individual dignity. Michael Ignatieff described the warmest
part of the Cold War---the so-called 'détente era' of US-USSR
relations---as an era of complicity, wherein "the West agreed to keep
silent about human rights abuses in return for Soviet cooperation in the
maintenance of geopolitical order. In effect, détente traded rights for
order."[^17] Not so today---there's no need to trade Russia much for
order since they aren't much of a threat to anyone but themselves now.

So now we've finally got a chance to do what we first wanted in the
idealistic flush of post-war Allied solidarity---stop evil around the
world. Although many believe, as the Clinton Administration more or less
did, that we should work to hold states together, intervention may be a
good idea if "a state's behavior \[has\] become so repressive that it
has lost the right to sovereignty over its component parts . . . ."[^18]

The problem with these somewhat ambiguous limited conflicts is that they
don't square very well with the post-DESERT STORM military ethos of
total victory. Let's not lose sight of the fact that DESERT STORM was
not just the opening salvo of the supposed New World Order, it was also
the final vindication of the last of our military leadership who were
Vietnam veterans---the men who were young lieutenants and captains in
Southeast Asia like Colin Powell and Chuck Horner. These men had intoned
relentlessly during the Reagan years the mantra that no
Commander-in-Chief should send the military anywhere unless he gave them
the overwhelming force and *carte blanche* authority to win quick and
win big. This was publicly expressed in what became known as the Powell
Doctrine.

But the clear black-and-white, good-guy/bad-guy motif of DESERT STORM is
not what we have faced in the many operations since then---nor what we
are likely to face in the near future. Everyone was our enemy in
Somalia; Haiti was a political quagmire; all sides in Bosnia were guilty
to a greater or lesser extent of atrocities and duplicity; and even the
lionized and heroically beleaguered Albanian resistance in Kosovo has
now turned into NATO's number one headache in Macedonia. These are not
the kinds of conflicts that lend themselves to the massive knockout blow
envisioned by General Powell, his contemporaries, and his immediate
successors. This may account for much of the frustration expressed by
senior military leaders during the peace operations of the 1990s. It is,
however, high time to shake off this unrealistic attitude born from the
pathology of Vietnam. We better get used to limited, ambiguous, and
untidy conflicts---we're stuck with these dirty little wars. We will
also need to accept that there are different levels of national interest
in these conflicts and that this will lead to varying levels of
political and military commitment---it's simply not going to be the
all-or-nothing conflict envisioned in the Powell Doctrine.

So that's one aspect of what I see as a fundamental change in the nature
of warfare---smaller conflicts, lower stakes, more complicated military
solutions.

# G. Zero Casualty Warfare

The second tectonic change I see is the American---and to a lesser
extent, European---obsession with the notion that wars shouldn't hurt
anybody. Although DESERT STORM and the operations that came after have
brought it into tight focus, the whole business of "zero-casualty
warfare" had been brewing over the preceding 20 years. It was yet
another part of the somewhat perverse legacy of Vietnam.

But the question remains, what is the basis of this assumption that the
American political leadership---and by extension the American
public---will not tolerate friendly casualties or, as has seemingly
begun to become the case in the Balkan operations, even enemy
casualties? The only attempt I have found to quantify this presumed
effect was a study done for RAND in 1996 by Eric Larsen.[^19] Oddly,
this study, although somewhat flawed in its methodology, suggests that
the US *public* reaction to friendly force casualties is, at least in
the short term, just the opposite of what many seem to presume---support
for a strong military response actually increases. What seems to be
happening is a kind of casuistic downward spiral involving our political
and military leadership---the political leadership, apparently based on
false assumptions about the American and allied public, demands
zero-casualty operations, and the military leadership perceives that the
political support for military operations---admittedly tenuous in many
peace operations---will be undermined unless they avoid casualties at
all cost.

And this pervasive casualty aversion has made its way into both friendly
and enemy operational doctrine. The presumed casualty aversion of the
American political leadership and public is seen by Air Force planners
and operators---tacitly or explicitly---as a vulnerable friendly center
of gravity, and often our only really vulnerable one, that must be
protected at all costs. Conversely, enemies have learned this and seek
to exploit it at great cost. Sporadic press reports reveal, for example,
that Saddam Hussein has offered large cash rewards to any surface-to-air
missile crew that shoots down a US or British aircraft in either no-fly
zone over Iraq. The Bosnian Serbs wanted desperately to shoot down and
capture any NATO airmen---Scott O'Grady was fortunate---two French
aviators were not. Slobodan Milosevic learned these lessons well---the
Yugoslav forces during operation ALLIED FORCE understood that it was
more important to *have* SA-6s---a potentially lethal surface-to-air
missile system---than to *use and lose* them. It was the *possibility*
of inflicting NATO casualties that was important and, in fact,
contributed greatly to the high minimum altitudes generally flown by
NATO aircraft and the concomitant loss of accuracy in bombing.

As a former aviator, I must confess to being somewhat conflicted over
this issue. On the one hand, many old and dear friends are still
flying---my old copilot, for example, now commands the B-2 squadron at
Whiteman, so I appreciate the care our commanders take not to squander
the lives of our aircrews. So I personally believe that a healthy
interest in minimizing friendly casualties is a good thing. On the other
hand, our current obsession with zero casualties leads to ludicrous
results like a joint force commander stating in the first sentence of
his commander's intent, "Force protection is my top priority," or a
senior air commander telling the assembled officers of his several
multinational flying squadrons, "There's not one thing here worth dying
for." I have personally witnessed both. These statements immediately beg
the questions in the minds of our very well educated troops, "Why isn't
the *mission* our top priority? Why exactly *are* we here?"

So now we have two pieces of what I believe to be a radical change in
the way we have done and will probably continue to do military
operations: dirty little wars and zero-casualty operations.

# 

# H. The Enemy of My Enemy

The third big change I see---and this is certainly a big change from the
rather paltry solo military interventions of the Reagan years---is that
the US will not, and some cases cannot, go it alone. Coalition warfare
is here to stay and we better get used to it and we better get better at
it. Thus far, we have been blessed with a group of generally very
patient allies who have tolerated a lot of goofiness and recalcitrance
from the US. Granted, the US has become, as former Secretary of State
Albright has said, "the indispensable ally," but we haven't always been
the most agreeable of allies. Because we generally bring the
preponderant amount of air and maritime forces to the fight, although
not necessarily the largest ground forces, the US has often adopted an
'our way or the highway' approach to coalition warfare.

And do not be mistaken, although the US may be the last remaining
superpower, we genuinely *need* coalition partners. When intervening in
the kinds of limited and ambiguous missions we have confronted since the
Gulf War, it is generally perceived that our political leadership and
the American public are much more likely to support US participation if
other states are perceived as doing their fair share as well.

To be sure, coalition warfare is not new---there were 10,000 French
troops under General Rochambeau at Yorktown when Washington took the
British surrender. But what we now see is not a *preference* for
coalitions, but, except for the smallest operations, an actual *need*
for them.

So now we have three big changes: dirty little wars, zero-casualty
warfare, and coalitions.

# I. New Technology, Old Methods

I have consciously left until last the great military technological
changes underway---the so-called Revolution in Military
Affairs---because it is surely the biggest of the Big Ideas in this
area. I can only hope to cover a few aspects here.

Certainly the most ballyhooed of the new military-technological
frontiers is in the area cyber warfare. This is an interesting but
extremely complicated area of military operations, particularly from the
legal viewpoint. Many within the military legal community think that
computer network operations, international cyber law enforcement, and
notions of use of force in cyber space easily fit by analogy into the
existing law of war regime. I think otherwise. Just as the instantaneous
transmission of ideas has done no small part to radically undermine the
traditional internal sovereignty of nation-states, so will it undermine
traditional international law notions that have been built up since the
time of Grotius on a presumption that the only important actors are
sovereign states in control of geographically defined borders. In cyber
space, borders simply don't matter.

Let me give an example. Suppose there is a criminal enterprise engaged
in fraud, with half the conspirators in Paris and the other half in
Marseilles. They promulgate their enterprise via e-mail, with accounts
on AOL. The electrons that constitute the stored records of this
criminal enterprise just happen to rest in AOL's mainframe computers in
Reston, Virginia. Obviously the overwhelming interest in the data
represented by those electrons in Reston lies with the French
authorities. The US really has no, or at best a marginal, interest in
those electrons---which incidentally could be erased, moved, or copied a
thousand times in milliseconds. What is wrong, then, with the French
authorities, relying on an authorization from a French magistrate,
seizing the data encoded in those electrons in Reston? The obvious
uneasiness of many with this idea results, I would guess, from two
things. First, it involves the French, whose government has been a
alleged to be a notorious supporter of industrial espionage for decades.
But second, many are undoubtedly aghast at the idea of the French
*gendarmerie* electronically crossing our border and seizing 'our' data.
I say you are thinking neither broadly nor thoroughly enough---borders
just don't matter.

Although this example is drawn from an international criminal
hypothetical, the same basic issue lies at the heart of our interpretive
angst in the area of international armed conflict in cyberspace. Because
the entire law of war regime has been built upon a Westphalian
foundation, the transformative properties of cyber warfare are just as
breathtaking. We are left pondering some fundamental questions---what
constitutes force? What is a hostile act? When is self-defense justified
in response to a cyber attack? Is the use of traditional means of force
ever justified in response to a cyber attack? These are not easy
questions and the international legal regime is lagging far behind the
problems presented by the increasingly sophisticated technological
possibilities in this area.

As a theater of warfare, the US may actually be at something of a
*disadvantage* in cyberspace. First, our adversaries do not generally
rely as heavily on computer networks and systems as we do. As a result,
they are generally much less vulnerable to the effects of cyber attack
than the more technologically advanced US. Luckily, potential and actual
adversaries have not shown a lot of capability in this area, but that
will surely change over time.

In the military context, new computer, telecommunications, and space
technology has allowed us to strike out boldly in new directions, with
air forces at the forefront. Very high fidelity satellites and unmanned
aerial vehicles have simply replaced the old air-breathing manned
tactical reconnaissance aircraft. The few that are left---none in the
Air Force---are not long for this world. Now, with the advent of the
GLOBAL HAWK ultra-long range unmanned reconnaissance aircraft system,
even strategic reconnaissance is going the same way---one recently
landed after a non-stop flight from Edwards to Australia.

Navigators, I say with some personal regret, are dinosaurs awaiting the
next Ice Age. They have been all but replaced by global position
satellites and inertial navigation systems of incredible accuracy and
reliability. Tactical weather forecasting has been revolutionized by
space technology as well. Indeed, nearly the entire realm of
Information-in-Warfare is now largely remote and stand off.

More momentously, US forces are now actively developing unmanned
offensive tactical systems. Recently, as reported in the media and
closely followed by our allies and potential foes alike, the US fired an
air-to-ground missile from an unmanned PREDATOR aircraft. This, have no
doubt, has given the heretofore-unassailable fighter pilot community
some pause for thought.

**J. The New Mercenaries?**

In a more subtle manner, our dependence on highly sophisticated and
highly specialized systems, coupled with economic factors and troop
recruiting and retention difficulties, has led inexorably to a much
heavier dependence on civilian---in particular civilian
contractor---support for military forces. This civilianization of the
military brings with it some serious and truly fundamental problems I
will discuss in a few moments. Suffice it to say that we will almost
certainly continue to turn over more and more functions traditionally
performed by uniformed military personnel to civilian employees and
civilian contractor personnel.

Oddly, it is our very technological sophistication and reliance on
state-of-the-art systems---coupled with our presumed casualty aversion,
that makes the US and its allies vulnerable to what have been rather
unfortunately termed 'asymmetric' means of warfare. Precision,
all-weather, day/night bombing capability presumes, for example, that
the enemy has definable and discrete targets or target systems that can
be attacked from the air and, more importantly, that if attacked will
have a significant impact on his ability to carry on with whatever bad
acts he may be intent upon doing. This was the problem with bombing the
Ho Chi Minh Trail in Vietnam. The Ho Chi Minh Trail existed everywhere
and nowhere---it was wherever the light vehicles or bicycles or human
porters decided it should be at any given time. Bombing one piece of a
primitive dirt road was not much of a hindrance to Viet Cong resupply.
Imagine if you will that US and allied forces were given the same tasks
in Rwanda as they were given in Serbia and Kosovo. Does anyone really
imagine an air-only campaign, no matter how sophisticated, could have
seriously stopped the kind of brutal, handmade genocide that was going
on there? When this is coupled with an adversary's willingness to engage
in surrogate terrorist or suicide attacks against US forces or
installations or even the US mainland, that is asymmetric warfare at its
worst.

So these are the four major factors that have contributed to
fundamentally changing the way warfare will be waged: limited and
ambiguous conflicts, zero-casualty warfare, the necessity of coalitions,
and the transforming effects of new military technologies. The looming
question of all this interesting analysis is, what does it mean for the
military in general and international lawyer judge advocates in
particular?

# K. The Future of International Law and the Profession of Arms

At the same time that we are engaging in limited and ambiguous
conflicts, the astounding disparity in technical sophistication,
accuracy, and destructive force between US and its allied forces over
those of Yugoslavia, or the Bosnian warring factions, or almost all
other potential adversaries has meant that we have been able to operate
with something approaching complete *impunity*. The only serious
constraints we have faced in the Balkans and elsewhere have been
self-imposed political ones---like the zero casualty fixation I have
already discussed. As a former aviator myself, it would be disingenuous
of me to feign resentment of this---the purpose of any well-trained
military force is, after all, to out shoot and out fly all comers. But
Kosovo brought the *enormity* of this lack of reciprocal risk to our
forces into crystalline focus. Why, you may ask, as an officer, aviator,
or lawyer, should this disturb me?

Although there was, and certainly is, a strong moral element, the
primary motivation for nations to agree to limit the means and methods
of warfare, since at least the first St Petersburg conference 130 years
ago, has been enlightened self-interest. We agree to treat prisoners
well or forego certain horrible types of weapons because we expect our
potential enemies across the table will do the same. We both win. Of
course, implicit in this reciprocal self-interest was the fact that the
nations around the table could each hold the other's forces at more or
less equivalent risk. A poison gas protocol does not do you much good if
you are the only one that can deploy gas on the battlefield. With the
our new-found ability to attack with impunity, the fundamental basis of
reciprocal self-interest that underlies the international humanitarian
law regime is essentially eliminated.

This is not to say that US forces acted in Kosovo or will act in the
future with callous and deliberate disregard for international
humanitarian law. American forces and commanders at least aspire to
virtuousness and the high moral ground. I can assure you that every
commander with whom I have personally worked wants to do the legal and
morally correct thing. One of our most cherished friendly centers of
gravity, as already mentioned, has been taking and defending the high
moral ground. But the removal of all tangible constraints---and this
also includes possible asymmetric means of warfare---is sobering. As
Lord Acton famously reminded us, absolute power and the virtuous
wielding of that power do not necessarily travel together.

What we are then left with as a mechanism for enforcing the norms of
international humanitarian law is simple moral suasion. If all we have
are declaratory moral norms, in the heat of a military campaign these
might often weigh lightly in the balance against military necessity or
even simple military efficiency.

This is exacerbated by the presumed American casualty aversion. Often,
increasing accuracy in order to absolutely minimize civilian collateral
injury means flying at lower altitudes and marginally increasing risk to
aircrews. If however we can deliver weapons from an altitude that is
marginally less accurate (and thereby marginally more dangerous to
civilians) but reduce to near zero the risk to friendly aircrews, the
temptation is often irresistible. Again, as a former flyer, I get a
certain comfort from this---while at the same time being somewhat
discomfited as a lawyer.

The second additional factor that may erode compliance with the law of
war is that with little or no opposing armed threat, there is no
marginal cost to our military forces or civilian population for
noncompliance. Again, the only real check on our freedom of action is
the moral weight of basic humanity. This is a thin reed, made even
thinner when dealing with force delivered from a distance because,
quoting Schwarzenberger, "The increasingly impersonal character of
mechanized warfare tends to reduce to the vanishing point inhibitions of
combatants against the use of weapons . . . ."[^20] Killing a bright
spot on a radar scope is much different than shooting a visible human
being with an M-16, for example.

Michael Walzer in his book *Just and Unjust Wars* foresaw this problem
several years before Kosovo---in the aftermath of the Gulf War. Walzer
points out, "When the world divides radically into those who bomb and
those who are bombed, it becomes morally problematic, even if the
bombing in this or that instance is justifiable."[^21] In the context of
the Kosovo air campaign, many have asked---and justifiably so---why NATO
viewed the thought of losing a single pilot as so repugnant, but did not
seem as troubled over unintentionally killing Serbian civilians. Just as
the Balkans were not worth the bones of a single Pomeranian grenadier to
Bismarck, are they not worth the life of a single NATO pilot?

So part of my concern with our seemingly enviable ability to act with
near-perfect impunity in Bosnia and Kosovo rests on what I perceive to
be a dilution of the already tenuous---in the best of times---force of
the law of war when faced with the military exigencies of real-world
operations. May we not find ourselves attacking targets of diminished
military importance, and concomitantly increased civilian importance,
merely because we easily can? Certainly many have suggested this may
have been the case with some targets, particularly economic targets, in
Serbia proper. One must pause to consider whether, given a significant
threat to our aircraft, NATO would have chosen to strike Yugoslavia's
cigarette production capacity or so-called 'crony targets'? Might
impunity not breed an attitude, even if only subconsciously, that we can
attack a target that has *any* military value, rather than a military
value that clearly *outweighs* potential civilian collateral damage? The
hopelessly subjective weighing of proportionality[^22] required of
commanders by the law of war only makes it that much easier to settle on
these types of targets.

Something else may be sparked by this environment of impunity. Not only
did NATO enjoy near complete impunity in the range of its targeting
choices, but its forces---particularly US forces---also enjoyed near
complete freedom in choosing what types of weapons to deliver against
targets. As many commentators have pointed out, a humanitarian
intervention probably carries with it a requirement to tighten our
concern with collateral injury to civilians. Although NATO forces used
many precision-guided munitions (PGMs) in Bosnia and Kosovo---more as a
percentage of total weapons dropped in Kosovo than in any previous air
campaign---its forces also dropped some non-precision weapons. NATO is,
after all, quickly dividing into a military community of 'have-PGMs' and
'have-not PGMs.' Some of these non-precision weapons, in particular
cluster munitions, have garnered much attention from the NGO community
since the end of the Bosnian and Kosovo air campaigns. Although cluster
munitions undeniably are an effective and appropriate weapon of choice
in specific circumstances---against isolated airfields for example---the
avowed humanitarian nature of these interventions and the near complete
impunity enjoined by NATO forces contributed to a sense that the use of
these comparatively sloppy munitions was unjustified. Subsequent
injuries to civilians, particularly children, from unexploded
submunitions has encouraged calls from NGOs to significantly restrict or
ban this class of aerial munitions. Much the same reaction resulted from
the use by US forces of depleted uranium munitions against Serbian
armored vehicles, with the UN Environmental Programme now engaged in
studying the long-term health effects of residue left by this class of
munitions.

If NATO and US impunity has diminished the authority of international
humanitarian law, what other than moral suasion, is left to ensure
compliance? First, like less benevolent persons and entities around the
world, NATO too will be subject to the microscopic scrutiny of 24/7
international media coverage. Instantaneous global communications---the
web in particular---have proven to be the key enabler for the nearly
instantaneous formation of transnational communities of interest, both
within governments and without. As discussed above, the successful
NGO-led transnational community of interest that grew rapidly around the
Ottawa treaty banning anti-personnel landmines is a paradigmatic example
of what powerful democracies will routinely face in the future as a
check on their freedom of action in particular policy
areas---undoubtedly including the use of force. International tribunals
may play an important role in ensuring scrupulousness by forces enjoying
impunity for their actions. Although the US has shown little present
interest in joining the International Criminal Court (ICC), there is
already an international tribunal with jurisdiction over Kosovo, Serbia,
and Rwanda. Indeed, the ICTY[^23] has investigated allegations regarding
NATO's targeting methods and philosophy and specific targeting
information on some selected targets from the Kosovo air campaign. NATO
was deservedly exonerated of all allegations by the ICTY
Prosecutor---the intense scrutiny given every target for compliance with
the law of war during Kosovo was without precedent in my experience.
Indeed, arguments questioning specific targeting decisions focus
entirely on two irreconcilable matters: human or mechanical
errors---which will always happen in the fog of war, and subjective
determinations of proportionality. A court is not a good place to
adjudicate either of these issues *post facto*.

Beyond these, albeit significant concerns about the effect of impunity
on the efficacy of international humanitarian law, I am deeply troubled
by its slow corrosive effect on military ethics. This requires some
explanation. As the great British military historian John Keegan has
argued[^24], ever since the advent of means and methods of warfare that
allow the application of force at a distance beyond arms
length---basically gunpowder---the mark of a great and valorous military
officer has ceased being the ability to inflict injury on the enemy with
a strong right arm. Rather, with distant means of killing, the mark of
the courageous officer has been an indifference to personal safety, a
scorn for injury or death. This reached its most ludicrous extreme in
the First World War, when the young lieutenants fresh from Oxford or
Cambridge went over the top with nothing but an umbrella or riding crop
or soccer ball. However, this is a manifestation of the single most
fundamental characteristic of the profession of arms---the willingness
to engage in self-sacrifice up to and including death. We in the
military often say, "It's not about the money." Certainly, military
pilots---and military lawyers, could often do much better financially
with much less effort and risk in civilian employment. But the military
profession has traditionally, and still does fancy itself to be a unique
calling.

Back now to my uneasiness with impunity. If we continually engage in
conflict marked by our vast technological superiority and our
leadership's almost fanatical aversion to friendly casualties, what will
it mean for the culture of self-sacrifice, for the ultimate defining
characteristic of the profession of arms? Michael Ignatieff, in a *New
Yorker* article soon after the end of the Kosovo air campaign in 1999,
asserted, "It was a virtual war, fought in video teleconference rooms,
using target folders flashed on screens . . . \[it\] never reached deep
into the psyche of a people . . . \[did\] not demand blood and
sacrifice." Just as Kosovo may produce great change in international
governance and international humanitarian law, so it may prove a
watershed in our understanding of military ethics.

But why should we care? Because some day---inevitably---you'll need us.
What happens when all the risk is gone? Two things, in my opinion.
First, we will eventually turn our military forces into a corps of
technicians, not soldiers. This has actually been occurring at an
alarming rate since the end of the Cold War. In our rush to claim a
peace dividend by a cost conscious Congress, many of the direct
supporting tasks for military operations traditionally performed by
uniformed military personnel have been contracted out to civilian
companies. Some of these contracted out tasks come perilously close to
the actual use of military force---loading sophisticated munitions or
maintaining stealthy combat aircraft for example. What do we do when
this new and benign kind of mercenary decides the risk of staying near
the battle is no longer worth the money---perhaps when threatened by
biological or chemical attack?

The second, and potentially much greater threat from zero-risk warfare
is that our political leadership will get used to using military force
and will begin to see the resort to violence as a *first*, rather than a
last, resort.

[^1]: *^\*^ Lt Col Walker (B.A. Tulane, MS.Sc. Syracuse, J.D.
    Georgetown, LL.M. Harvard) is chief of operations law at the
    International and Operations Law Division, Headquarters Air Force.
    He is a former B-52 navigator and has served as a legal advisor in
    operations in the Balkans, including DENY FLIGHT and JOINT ENDEAVOR.
    He is a member of the Illinois State Bar.*

    ^?^ The author presented an abridged version of this paper as the
    Thomas P. Keenan Memorial Lecture, 8 May 2001, at the Air Force
    Judge Advocate General School as part of the School's Operational
    Law Course. The Award recognizes the Air Force judge advocate or
    civilian attorney who, during the prior year, made the most notable
    contribution to the development of international law or military
    operations law.

[^2]: The last few parts of this paper concerning military ethics in a
    US-dominated post-Westphalian world are based upon a presentation
    given by the author at the annual meeting of the American Society of
    International Law, as part of a panel on humanitarian intervention
    in the Balkans chaired by Professor Linda Malone, Marshall-Whythe
    Law School, College of William & Mary.

[^3]: ^\*^

[^4]: For some in-depth discussion of this idea of a post-Westphalian
    world order, see [Andrew Linklater]{.smallcaps}, [The Transformation
    of Political Community : Ethical Foundations of the Post-Westphalian
    Era]{.smallcaps} (1999) and [Richard Falk, Law in an Emerging Global
    Village: A Post-Westphalian Perspective]{.smallcaps} (1998).

[^5]: For an excellent overview of British imperialism, see [Bernard
    Porter, The Lion\'s Share: A Short History of British
    Imperialism]{.smallcaps}, 1850-1995 (3d ed. 1996).

[^6]: For an interesting (and African) perspective on post-colonial
    Western imperialism, see [Walter Rodney, How Europe Underdeveloped
    Africa]{.smallcaps} (rev ed. 1981).

[^7]: For an overview of the Arab perspective on international human
    rights, see [Kevin Dwyer, Arab Voices: The Human Rights Debate in
    the Middle East]{.smallcaps} (1991).

[^8]: For an excellent overview of the constitutional aspects of
    European integration by a noted legal scholar, see [Joseph Weiler,
    The Constitution of Europe: Essays on the Ends and Means of European
    Integration]{.smallcaps} (1999).*\
    *

[^9]: World Trade Organization.

[^10]: A group formed by the major industrial democracies that meets to
    deal with the major economic and political issues facing their
    domestic societies and the international community as a whole. The
    group consists of France, the United States, Britain, Germany,
    Japan, Italy, Canada, and since 1998, Russia. G-8 Information
    Centre, University of Toronto at
    http://www.g7.utoronto.ca/g7/what_is_g7.html.

[^11]: For a remarkable work on the issue of sub-state actors,
    transnational activities, and international relations[,]{.smallcaps}
    see[, Robert Keohane & Joseph Nye, Power and
    Interdependence]{.smallcaps} (2000).

[^12]: [Anthony Lake, Six Nightmares: Real Threats in a Dangerous World
    and How America Can Meet Them]{.smallcaps} 281-82 (2000).

[^13]: Non-governmental organizations.

[^14]: [Lake]{.smallcaps} *supra* note [Error: Reference source not
    found]{.smallcaps}. Some do not view Ottawa as a triumph of
    international civil society and grass roots democratic action,
    however. For an interesting counter-argument, *see* Kenneth
    Anderson, *The Ottawa Convention Banning Landmines, the Role of
    International Non-governmental Organizations and the Idea of
    International Civil Society*, 11 European J. Int'l L. 91, 120
    (2000).

[^15]: For a somewhat more hopeful counterpoint to this pessimistic view
    of the Balkan peoples, see [Julie Mertus, Kosovo: How Myths and
    Truths Made a War]{.smallcaps} (1999).

[^16]: [Francis Fukyama, The End of History and the Last
    Man]{.smallcaps} (1992). This book was a full-length exposition on
    Fukyama's short and highly controversial 1989 article published in
    *National Interest*. Fukyama subsequently produced a blueprint for
    his vision of a 'post-historical' world in [Trust: The Social
    Virtues and the Creation of Prosperity]{.smallcaps} (1996).

[^17]: [Human Rights in Political Transition]{.smallcaps} 317 (Carla
    Hesse and Robert Pose eds., 1999).

[^18]: Lake, *supra* note Error: Reference source not found, at 172.

[^19]: [Larson, Eric V., Casualty and Consensus: The Historical Role of
    Casualties in Domestic Support for U.S. Military
    Operations]{.smallcaps} (1996).

[^20]: [Georg Scharzenberger, International Law]{.smallcaps} 135 (1968).

[^21]: [Michael Waltzer, Just and Unjust Wars: A Moral Argument with
    Historical Illustrations]{.smallcaps} xxi (2d ed., 1992).

[^22]: For a somewhat authoritative and well-written discussion of the
    problem of subjectivity in making a proportionality determination,
    see Office of the Prosecutor of International Criminal Tribunal for
    the Former Yugoslavia*,* *Final Report to the Prosecutor by the
    Committee Established to Review the NATO Bombing Campaign Against
    the Federal Republic of Yugoslavia*, paragraphs 48-52 (2000).

[^23]: International Criminal Tribunal for the Former Yugoslavia.

[^24]: See the introduction to John Keegan, *The Face of Battle*
    (reprint ed., 1995).