In Paul Cartledge’s history The Spartans, he shares a story toward the end of the age of Spartan prominence. For much of its history, Sparta had intentionally been a city without a wall: for an enemy to have reached the city of Sparta, the Spartans would have already fallen. The lack of defence encouraged Spartan society to remain vigilant and ready to go on the offensive. For most of its history, this worked. Yet, as the tides of Greek politics shifted, so too did the balance of power and Sparta became more vulnerable to surrounding threats. At one point, the city of Thebes surprised Sparta with an attack. During this fight, a young Spartan teenager – not yet a soldier and unarmoured – grabbed a nearby spear and fought to defend his city. The boy, Isidas, fought heroically and skillfully and succeeded in helping to push the Thebans back. Such stories inspire acts of valour, but the Spartan story does not end there. Isidas was honoured for his courage with a garland, but he was also punished. Isidas had not yet reached the age at which he was allowed to become a soldier and had fought individually instead of within a battle formation. In so doing, he had risked a life that was not his to risk (even if it was his own).
The Spartans, while being held up as the gold standard for masculine, military culture, understood that violence needed to be constrained by legality. Allowing exceptions to the proper use of force was a slippery slope towards an anarchical society. Today, the value of the relationship between military violence and legality seems to be in doubt. With Russians regularly ignoring international law on conflict and going so far as to shoot down their own disobedient mercenaries, Western sensibilities on the topic can seem out of touch with what is required for states to survive and succeed in today’s world. Yet, the only thing that happens when one uses the Russian playbook is that one acts like Russia; to play your enemy at their game is to take on the characteristics of your enemy. The playbook might be worth reading, but that does not mean it is worth following. In this piece, I want to explore the relationship between law and the use of force, and why it is so important.
The Rule of Law and the Lure of War
One of the most interesting lecturers I had at University was a man called Professor Brad Evans. He was a philosopher of violence – a grim profession if ever there was one – and he had a knack for guiding lecture theatres through harrowing conversations while offering the tools to grapple with the concept of violence. When we received a list of essay questions from different lecturers, his was whether violence can ever be politically legitimate. At first glance, it can seem a redundant question: violence is used as part of political functioning and to suggest that it might never have legitimacy is to see the world as we wish it to be rather than as it is. Nonetheless, one of our seminars brought home the importance of this question. In it, a student who was looking to join the military after his studies grappled with the implications and asked: ‘what is the difference between a soldier and a murderer?’.
There are several ways to approach that question, and many answers to be had (including: ‘there isn’t’). The initial reply was ‘service’ – the soldier fights for a greater good on behalf of their country, their use of violence is to the safety and benefit of those who did not choose the warrior’s path. Yet, there are many we consider ‘murderers’ who understand their actions as part of a greater good. Indeed, most politically motivated acts of lethal violence have some consideration for a larger social cause. The greater good is part of the answer, but it is not enough.
The second part of the answer is legality: the soldier has parameters, Rules of Engagement, and laws dictating their use of violence; and those who set those rules as well as those who administer them are accountable to a democratically-legitimate state. The difference between a soldier and a murderer (assuming you believe there is one) is that the soldier fights for a cause greater than themself and is beholden to democratically-accountable rules and laws.
Recently, I finished General Rupert Smith’s compelling book The Utility of Force. He led UN forces in Bosnia during the time of the Srebrenica massacre and is therefore intimately aware of the drawbacks of overbearing legality on the use and utility of military force. If not for the incoherent legal framework for the deployment of troops under his command, Srebrenica might have been prevented. Nonetheless, he is emphatic on the importance of such law, particularly when it is coherent with the political context at hand.
Much of Smith’s argument focuses on international humanitarian law. This is important because the case relies on the fact that military violence against an opponent does not operate in a vacuum. Other countries and actors observe how events unfold and analyse what this means for them. A state whose troops act within agreed norms is a state whose intentions and broader actions can be more easily understood and therefore negotiated with. Violence that goes beyond these norms and parameters – illegitimate and illegal violence – showcases to the international community that the perpetrator is no longer to be trusted. Military preparations are made, and everyone becomes more insecure because of it. Furthermore, the soldiers in an army are drawn from the people and must return to the people once their service is complete. Using military force beyond what is accepted in one’s own laws is a fast-track to depleting morale – few soldiers want to return home and be considered criminals.
Alea Iacta Est
Self-branded Secretary of War Pete Hegseth seemingly has a passion for the relationship between the law and war. In one such speech, he advocates ‘maximum lethality, not tepid legality’. On top of this, he has made an effort to fire or sideline military lawyers within the Department of Defence. These decisions are not just found on paper either; the official White House social media account shared videos of their decision to employ lethal force against apparent ‘narcoterrorists’.
This disregard for (international) legality from the world’s superpower is disconcerting to say the least. However, it is not just the US that challenges this relationship between the law and war. Israel has also employed force in flagrant violation of international treaties (which they are signatories of). Going beyond assassinating ‘narcoterrorists’, former Head of the Maritime Section in the UK Foreign Office Craig Murray set out Israel’s various transgressions of international laws. From operating against a flotilla outside of its territorial sea to maintaining a 17-year-long blockade against Gaza to breaking the San Remo rules on the supply of humanitarian aid, Israel has drafted a long list of illicit violence – and that is just in reference to the recent Semud Flotilla.
There are consequences to dismissing the relationship between legality and force. Domestically, stories are already coming out from Israel and the US about soldiers commiting suicide because of their complicity in genocidal crimes and of troops in the National Guard losing morale from repressing their fellow citizens. Internationally, it forces neighbouring states to react, prepare, and potentially respond. Russia’s illegal invasion of Ukraine has prompted the largest European spending spree on defence since the second World War. Fundamentally, however, a state that uses violence without reference to legality is one that cannot maintain the Rule of Law. ‘The Rule of Law’ is a phrase that is bandied around often enough that it is easy to skip over it without appreciating its importance. Without the Rule of Law, however, our security as citizens is placed into the hands of murderers instead of soldiers. Without law reigning supreme, power is only accountable to power – not legitimacy. In this context, leaders derive authority from their ability to command unrestrained violence rather than from their capacity for galvanising the democratic intentions of the public.
The Power of Words
Violence is blatantly important to maintaining our security. In a more volatile, competitive world, following the rules can therefore seem like trying to fight with one hand tied behind our backs. The laws themselves can simply feel like words on a page, ignorant and useless in the face of conflict. Yet, there are horrifying consequences to not ensuring that the use of such violence is connected, constrained, and defined by law.
Albert Camus is known for his existentialist philosophy but he was also witness to the brutality of the decolonialist war in Algeria. In his Chroniques Algériennes, he says the following:
While it is true that in history at least, values – whether of the nation or of humanity – do not survive unless we fight for them, neither combat nor force suffices to justify them. The fight itself must be justified and enlightened by those values. To fight for the truth and to take care not to kill it with the very weapons we use in its defence; this is the double price to be paid for restoring the power of words.
Today, our values and interests come under threat. The question is whether we are willing to pay the price for their defence.