Lawfare - Theory & Practice

[jmm99]

I'm glad you said this (not for the first time, IIRC):

from BW
No one simple two-diemensional approach can balance this complex mix of actors.

It looks to me like you have at least a three-dimensional system, requiring a three dimensional graph (x, y, z). One axis is the type of state; another is the bad-a$$ actors; and the third is the "encouragement-discouragement" index.

Inserting the level of violence (crudely, at the extremes, a state of pure peace and a state of pure war) adds a fourth dimension. The level of violence is not a straight line from 0% to 100%; there would be peaks, valleys and discontinuities.

This sounds something like quantum mechanics, which makes some sense because you are attempting to picture an open, complex system in two or three dimensional terms. In attempting to come up with a unified theory, are you not running into the same sort of problems that arise from applying effects based operational theory to an open, complex system (as opposed to a closed, complex system, where the variables can often be defined and controlled at least to a useable extent) ?

As an example (albeit extreme and unlikely to happen): if I, as a dissident individual, get ahold of a 100 megaton device and delivery system, and have a few minutes of lead time to launch, I am a nuclear state for all practical purposes.

Not saying you should scrap your efforts; but, in attempting to simplify complexity, it is too easy to simply become simplistic.

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from BW
How then, to apply lawfare to this? Currently those outside the law have all the advantages, so perhaps something as simple as a waiver for states to act outside the law as well in certain circumstances. Again, it is about balance. Such waivers must allow effective opertations, but not at the same time compromise principles that weaken the moral authority of the state structure.

Not "outside" the law for states, but under new laws (whether statutory and/or common) that fit within the general framework of existing law and allow states to meet new challenges.

E.g., those judges who read the 2001 AUMF realistically and developed detainment law around the sparse wording in the AUMF and Common Article 3 of the GCs.

The law is quite adaptable if it is permitted to adapt, as Boon points out in his last post. Of course, you will always have the problem of judges, and others as well, who refuse to adapt.

Put them all through The Quigley - or the Sturgeon Sloughs.

Regards

Mike

PS: Bob, agree with your geographical example of AQ picking up stakes and moving - that is, that geographical location does not define the "base". And, to bring in some word play, AQ can translate to "The Base"; AQ does special ops (unconventional warfare) vs us; and a SF base is not defined by geographical location. That should be an easy sell at Socom.