 Well, thank you all for bearing with us through the long afternoon. We now have the most exciting subject of the day, which is the law. All of us here on this panel are law professors in one way or another, but we're going to try really hard not to be too law professor-ish. We're going to try really hard, in fact, to focus on issues that are at the intersection of law and policy. I'm Rosa Brooks. I'm a law professor at Georgetown and a fellow at New America in the future of war project and I'm going to just very briefly introduce our panelists then I'm going to we're going to try to keep this as conversational as we possibly can. I'm going to throw out some first a general question for all of them and then hopefully we'll dive down a little bit more and after about half an hour we will go to you in the audience to see what you think. Starting here we've Major General Charlie Dunlap who is a retired Air Force Deputy Judge Advocate General and now teaching at Duke Law School. Next to him we have Bill Banks at Syracuse University who's the founding director of the Institute for National Security and Counterterrorism. Next to Bill we have Naz Modirzadeh who's the founding director of Harvard Law School's program on international law and armed conflict. And then sitting next to Naz we have Professor Laura Dickinson at George Washington University Law School who has written extensively on privatization of private military and security contractors and emerging technologies and the effect on law. So let me let me begin by throwing out a fairly general question. I was at an event sponsored by another think tank in town yesterday at the center CSIS and the topic of the workshop I was sitting in was more or less the same as our topic today and the starting premise was that the application of law to real world events has become increasingly complex and difficult and that the normative foundations of the law of armed conflict if there ever were any were severely undermined by the events of 9-11 and that since then legal certainty has been elusive or illusory. That we no longer even really know what a war is when the law of armed conflict applies, when some other body of law applies, who can be targeted, who can be detained? Is the war, where is the war? Does it have any geographical boundaries at all? Do we know when wars begin or end? Do we know who is a combatant in wars? And obviously this matters if we think that there is an armed conflict with al-Qaeda and its associated forces that extends to Yemen then US drone strikes in Yemen are the lawful targeting of enemy combatants. If we think that you can't call that an armed conflict then they look like murder or something else at any rate. So a lot hinges on our ability to tell the difference between war and not war. Can we do that in any meaningful way or do we need to really wholesale reconsider a lot of our assumptions about the law? Let's just go down the line here. Charlie, what do you think? I think the law exists. I think the problem that we, and it is workable, the fact that it's complex, there's lots of things in this world that are complex. Bombing Baghdad is complex. It doesn't mean that we're not going to do those kinds of operations. The problem that we have today is discerning the facts. If we could get the facts clear then the law is there, especially when you look at the fundamentals of the law of armed conflict. Why don't I stop there and let our rest of the panel. So one of the reasons that the questions about war are so much more difficult now is that we don't, most of the time, find ourselves in state on state wars. We're in conflicts with non-state actors. And the rubric and framework for armed conflict and war and peace was constructed on the assumption that those who would be warring were states. Not having a state in the adversarial role greatly complicates the law as it does the policy. So obviously I think asking a panel of lawyers, is the law real and does it matter? We have a vested interest in saying yes, of course the law is real and it matters. But my sense is, my response to that claim that we have heard for so long now, right, that international law is claimed or the Geneva Conventions are outdated is, I think we have a tendency to get a bit defensive as international lawyers about that question. And I think to flip the question back and to say, so what exactly would we do if it is outdated, right? So is the person posing the question then going to propose that we have a treaty that says that you can deliberately target civilians? Are they going to suggest that we have a treaty that says that when fighting terrorists you can fire bomb cities? I think, and in most cases I think the answer to that question is no. So I think there is a, that claim I think is often loaded with assumptions about what the law of war says that are not born out by actually looking at the law and studying what it really requires of us. Trends in the future of war, including the use of private military security contractors, the growing use of military technologies that we've been talking about this morning. We are stuck in a legal regime that was developed in a completely different era and I think we're struggling to keep up. So I think we need a lot of reforms and changes. Well, let me ask a really basic question. What is war? Can you define it for us? And I'm assuming that most of our audience are not lawyers. We lawyers don't actually usually talk about war. We talk about armed conflict. So if you prefer you can, what's an armed conflict and how do we know when we're in one? And the final piece of that is are we in fact in one with al-Qaeda and that's associated forces everywhere, somewhere, where? I don't want to sound too flippant, but it's a war if nations decide it's a war. Because international law basically is the law of nations. So if nations call it a war, conduct themselves as if it's a war. There's legal aspects that look at it. What's the intensity, is it functioned by an organized armed group? There are different things that we draw from different cases that help us with that definition. But it comes down to if a nation state believes it's a war, it's going to be pretty much conducted. Does it bother you that many of the US's European allies do not think the US has a war with al-Qaeda? Does it bother me personally? Is it enough for one nation state to assert that it's a war or does there have to be some sort of consensus among the international community? I think in modern society, and I'd love to hear what my colleagues have to say, we're not going to get that kind of consensus because that kind of determination is loaded with other political considerations, including domestic considerations of various countries. But that doesn't mean that the facts are, would show that we're in an armed conflict if we're in an armed conflict with an organized armed group. The problem is determining the facts, how organized is it? How much of an armed group is it? Because we do want to distinguish international humanitarian law, the law of armed conflict from international human rights law and criminal law, slash criminal law, because not everything is appropriate for the application of the law of armed conflict. Charlie's put his finger on one of the difficulties here. There's more than one body of law at play. There is public international law. There is the law of armed conflict or international humanitarian law. There's international human rights law. There's the domestic law of any number of states. There's customary law. And we could go on. There are a number of specific treaties and agreements that may pertain to conflict of one sort or another. And we haven't even raised unique problems like biological weapons or chemical weapons or cyber. So it's an incredibly complex domain. The words matter, but they're not all telling. Yeah, I think I would just build on what Charlie and Bill have said and say that I think it's not only if states determine it's a war, it is a war, but I think in the contemporary context if certain states decide that it's a war and begin to alter their understanding of how the law binds in those kinds of wars, then that may have an effect on other states in a way that is based much more on sort of power or politics than on what the law actually says. I think that the political consensus around what constitutes war does in effect define war. But one of the things that's been very interesting that's happened as we've seen the clear boundaries between war and peace blur is the move towards looking at certain minimum standards that might apply in all contexts, and that is the relationship between human rights and international humanitarian law, for example. So I'm hearing two slightly different things here, actually, I think, and I want to pull out the tension between them. One thing I'm hearing is that there is such a thing as law and there are such things as facts, and facts relate to things like the intensity of the violence, how widespread is the violence, how intense is it, how organized are the actors who are perpetrating the violence on one or both sides, so we've got these facts which are objectively determinable, and then we've got this law which we can apply in some fairly objective fashion to those facts, and when we get a sufficient quantum and frequency and intensity of violence, at some point we say, okay, now we know we've got an armed conflict, we're simply applying the law to the facts, and I've heard you say that, Charlie, but I've also heard something which seems almost to be the opposite of that, which is the Humpty Dumpty theory of language, Humpty Dumpty and Lewis and Carroll's Alice in Wonderland says something, I'll probably get this slightly wrong, something to the effect that a word says Humpty Dumpty means whatever I say it means, the question is simply who is to be master, and that the powerful are those who define terms, that the law has no independent meaning, that if a state, a powerful state, the United States says this is a war, then it's a war, and that's the end of the story, but if that's the case that's very different and that's kind of disturbing, because what if Vladimir Putin says, well what if China says we're at war with weaker dissidents, and we in the United States say no you're not, you're suppressing human rights activists and they say well no, it's a war, that's what you said about al-Qaida, everybody else disagreed with you, but if you get to be the arbiters of when there's a war and when you can use force in a law of armed conflict regime which in some ways is more permissive in terms of state use of force, then why can't we do it too? Well, I should say that how a state characterizes their conflict is one element, and I think that at least in this country the law really matters, because I know the military spends an enormous amount of effort trying to comply with the law and very complicated rules of engagement which typically are more demanding than what international law would require, so if the theoretically most powerful country in the world is respecting law then I think that that's a powerful statement. There is always going to be disputes among countries as to how to characterize a conflict and I would suggest that some of these things aren't new, that we've had gray area, we've had I think over 300 different deployments of U.S. troops in our history but we've only had what five or six declared wars and we've had other times previously when we've had non-uniform people involved in war, we've had guerrilla war since the beginning of armed conflict, so these aren't all new things, it's how we develop the law and international law, especially the law of armed conflict is a developing area of the law, meaning it always develops and it always accommodates new things. It doesn't mean that we don't need to make some specific changes here and there to address particular problems but I think that the larger framework especially when you get down to the core concepts is as relevant today as it was any time. I think the problem we have today is the client, there's no reciprocity with some of our adversaries out there and I think that that is a real challenge to the viability of international law. I'm still feeling a little bit uneasy about whether we actually know what war is sufficient to apply in some principled and consistent way bodies of law and Bill I wonder if you, strikes me that one of the difficulties right now with looking at particularly U.S. counter terrorism uses of force is that since so many of those drone strikes for instance not exclusively drone strikes but that's one I think that comes readily to mind since so much is in the covert realm or the classified realm we're left in a position of all those sort of objective facts about intensity, duration, organized nature of the enemy that we're really left having to just take the government's word for it. How does the fact that so much of the U.S.'s recent use of force has been in the covert realm complicate our ability to tell the difference between war and not war and to apply legal categories. That's a great question and it's a difficult one because on the one hand the United States has done I think an admirable job of developing a domestic legal regime to regulate the intelligence community including covert operations by the CIA or other elements. On the other hand at international law one of the touchstones of lawfulness of the use of force is accountability. And if you're unacknowledged on the battlefield you're not accountable. So even an operation as well known and now attributable to the United States as the bin Laden operation in Abbottabad was structured at least in the planning stage as a covert operation. There were intelligence committee findings. There was a lot of work between special forces and intelligence operatives in the region and on the ground and back here. And it was conducted without the United States acknowledging its participation. Of course after the fact it was acknowledged but it was not at the outset at the time of the initiation of the operation and acknowledged operation. That creates a problem of accountability at international law. What do we do about that Naz? I think my sense is that what we've done about it is that we have increasingly used policy and we there's a sort of a catchphrase that I think we see more and more in speeches of one administration officials and in many documents related to these issues that say as a matter of policy dot dot dot and then whatever the standard or the norm or the doctrine is. And my sense is we should be very concerned about that. That the more we put into the realm of policy things that are sort of a blend of actually binding rules and then principles or standards that are in fact not binding rules. It both undermines the accountability that Bill is talking about and it creates a sense that trust us. We're going to tell you what we're doing. It's not binding. We don't see it as a law but we assure you that we are acting in accordance with that policy. And I think that is creating a set of sort of byproducts and unanticipated consequences that will come back to be problematic in the wars to come. Can I jump in there? I'm in violent agreement with Naz. And she by the way she's written a wonderful article on this subject because for example the fact sheet that the White House put out on essentially drone strikes that does apply to other things. It's a mixture of law policy. It's a mixture of international law, international human rights law. But the problem with that is when you don't delineate exactly what you're talking about which area of the law it causes confusion and it results in people thinking that is the law not understanding that some of those things are policy. What's the problem? When you get into a conflict like Syria when you have to take off some of those policy restraints suddenly it seems like you're backtracking and things are going wrong and you're not following the law or whatever and I think it's very, very complicated for the general public. I do think that there's some accountability in terms of drone strikes. There's not public accountability in the way that we're used to seeing in other kinds of problems. But this admixture that Naz has identified in her writing is fascinating. But does the fact that a lot of the administration statements about what set of guidelines it regards as operative for instance drone strikes outside of so-called hot battlefields does the fact that there's a sort of mix of law and policy cause confusion or simply reflect a fairly honest awareness that there is confusion, that the administration itself isn't quite sure what the boundaries are of what's legally permissible and is simply saying given this legal murkiness we're going to err on the side of adopting a set of policies that we think are sort of in the spirit of the law if not consistent with the letter and what's why is that so bad? I'm fine with policies because rules of engagement by and large are mostly policy. But the problem is when you don't delineate what is policy and what is law and which area of the law I think it creates confusion. So okay let me, I still don't know what war is. I don't know what war is and I don't know what soldiers are and I don't know what weapons are and most of this body of law that we want to apply depends on our ability to determine when we're dealing with any of those things or any of all those things. Let me shift from asking what war is to focusing a little bit more on what's a soldier, what's a combatant, what's a weapon. And Laura you have been working quite a lot in recent years on the rise of private military and security companies. This has not been in the news as much since the peak of the Iraq war at one point during the Iraq war there were more private military contractors in Iraq than there were US troops or coalition troops and although that's sort of faded from the public mind it hasn't gone away. If anything on the contrary we have even greater expansion of the use of private military insecurity contractors. They're fighting ISIS, they're working with the Kurdish Peshmerga, you name it. Are they soldiers under international law? Are they combatants? How does the extensive state reliance on private contractors further complicate this question of what body of law applies into whom? It complicates it a lot and I'd like to link the growing use of contractors to new military technologies because to develop, maintain and operate these technologies requires contractors. If you take one flight of one of the larger drones the Global Hawk requires more than 300 people many of whom are contractors whether it's maintenance, gathering intelligence and so forth. So these two things are intertwined and I think one of the biggest problems in international law let's assume we are in a war that is recognized as such and accepted as such is whether these contractors are either combatants or whether they could be considered to be directly participating in hostilities. If they are then that changes the calculus in terms of whether they can be targeted. So is someone gathering intelligence, a contractor gathering intelligence that is later used in a drone strike? Can that person lawfully be targeted or not? This is one of the many unresolved issues in the law of war. I mean people have said things about when contractors should be considered to be directly participating in hostilities but I don't think there is enough of a consensus on this point yet. And I'm really glad that Laura brought up I think is the real problem with contractors. Everybody thinks that security contractors driving around trucks with with machine guns that's not really the problem. The more complex one is the one that she's identified is the heavy contractual support of high technology. But let's say one thing there's nothing evil about being a contractor. These are great great Americans in many cases. We need it's part of our asymmetric capability but what we have to wrap our arms around is is how we are how we should expect them to be considered and we have to be conscious of what they are being subjected to because some of those people may not realize it. They are belligerents. They are targetable and they're targetable on the same basis as an active-duty military person even though they're living in you know outside of Fort Meade somewhere. So let's say hypothetically Bill let's say the US were to rethink its approach to the conflict in Syria and decide that since we're already using airstrikes against ISIS against the Al Nuzar fund against the sort of other people that might as well use them against Assad's regime as well. So that would bring us into a state of armed conflict with the state. And let's say that somewhere in California or or or Nevada or outside of Langley a civilian working for a private contracted company is assisting with some of the intelligence gathering that leads to targeting that is for US airstrikes in Syria. Could Bashar al-Sad's regime lawfully target those people assuming it had the capability to do so? We look for symmetries in the law and fairness in the law so the the short answer to your question is maybe yes maybe yes and everyone ought to understand that if the person is taking responsibility for targeting decisions on behalf of the United States he or she is accountable and if we're in an armed conflict with Syria or some other state for whom the targeting is occurring the the enemy has the same combatant privilege as the United States does to fight that conflict and go after the the combatant. There's a question of course here in Langley or in Nevada or in California if there's another way to defeat the the targeting procedure or mechanics that are going on here arrest use of civilian police that's a legal obligation that the Syrians would be unlikely to follow. I don't certainly agree with that. Okay I've said enough. Alright. To make everybody angry yeah. Let me there's there's too much to talk about and there's not enough time but let me just to get what I think are all the important issues at least out on the table. How about what is a weapon we've we've we've already talked about some of the murkiness in determining what's an armed conflict what's a war what's a combatant what about the world how does cyber complicate this for instance. We talk very loosely about cyber war and cyber conflict and cyber attacks when and under what circumstances if ever it doesn't make sense to think that we're talking about war conflict in the legal sense rather than just the metaphorical war on poverty war on drug sense ever. I'll start us off very briefly the legal framework for war is built on the conception of force and armed attack the United Nations Charter structured around those conceptions to prevent against the use of force and to enable self-defense following an armed attack. If you think of cyber except in the rare instance like a Stuxnet cyber warfare if you like that phrase does not have kinetic effects so the framework is ill-fitting I'll stop there. Except that it could Stuxnet did. If you you know hacked into the air traffic control at Reagan and planes crashed into each other then it would have a kinetic effect. But 99% of all cyber incidents from state-on-state are not at the threshold. Right well if you disrupt communication systems and people die then there are kinetic effects but I think that our thinking is shaped by a pre-existing legal framework from another era and we're trying to adapt it to this new method and means of warfare and we're struggling struggling to catch up. I think I mean in some ways I was thinking about this during the panel on on by on biological weapons and developments there were where the experts were discussing this idea of the problem of analogy right so how to what extent can you draw an analogy I obviously have absolutely no idea the substance of their discussion is outside of my realm but to what extent can you draw an analogy between a biology and computers right so that doesn't make you say molecular biology as a field has fallen apart because we can't draw the analogy I think in some ways international law and the law applicable to armed conflict I think there's a there's a lack of understanding of just how many people and how many soldiers and warriors today are applying that law in the armed conflicts that they're engaged in and and I don't think on a day-to-day basis there's this sort of postmodern Humpty Dumpty problem of you know what's a war what are we doing how do we apply the rules but I think there is a sense that once we start to analogize out to conflicts that lack the very elements that these rules were built for then you start to ask well what is an attack what is a weapon what is a victim of an attack let me let me take that a step further so so usually when people say well there are certain circumstances in which you could apply the law of armed conflict to cyber they they revert back to what Bill said which is something that has to do with kinetic effects and say okay just hacking and messing with Sony might be embarrassing and annoying but nobody is dead whereas hacking into the air traffic controller system and planes crash or taking down the electrical grid and people in hospitals who are dependent on life support machines die that suddenly does start looking like you may not have used a traditional weapon but you had your kinetic effects people are dead that was the that was the predictable and intended effect and it's reasonable for us to treat that as an armed attack a use of force it's reasonable for us to if we were say the victim of such an attack to respond ourselves using conventional military force that we could we could use bombs or guns against those who had launched such a cyber attack what if we take it a step further though one of the most fascinating and interesting things that's been happening in the last few years and Charlie this is something you've been writing about recently has been the development of non-lethal weapons weapons called them non-lethal weapons the well the technologies that are designed to incapacitate without killing and in some cases without causing any permanent physical pain or harm what does it even mean to talk about those as weapons if we have a mechanism to control human beings if I could wave my my magic new technology wand at the you know invading army and they're all fall asleep for the next five days long enough for me to go out and handcuff them all and you know subdue them and then they wake up and they have no memory of this and they feel just fine but they can't fight me anymore because I've got them is that a weapon would that be a war does it how do we even think about that kind of stuff this is why she's so smart because what she's doing is she's disaggregating what bill talked about the idea of violence is it an attack because an attack typically involves violence if you look at at various international instruments and and I think she raises a good point and especially when you move over into the cyber realm let's assume that nobody was killed by the cyber attack but the stock market crashed and that will have an adverse effect hugely change people's way of life I think that the norm is evolving and I think Mike Schmidt has a new article out that that is it's evolving but we've seen that before in international house which is rolling in his grave yeah yeah close what said international law doesn't mean anything but then he said oh worse extension of politics as if there was no relationship politics law but that's that's a free beer conversation but then where do we draw the line though but because if we're if we're now saying if we're now if my magic wand is a weapon it's a non-lethal weapon the sleep want my sleep one everybody just falls asleep and while they're sleeping I you know I stick them all in jail or whatever and I take away their money they can't they can't fight us anymore because they're all sleeping and then they wake up and they're fine and I have to do their entire nation I now control their nation I can occupy their territory we knew it every once we would probably want to call that war and we'd probably want to call that a weapon and we do call them and I think we and I think we would but but then where's where do we draw the line though what about economic sanctions why don't we call that war or a weapon in that case because because the law isn't a cookbook we don't have a total system you know the the you know the clients when you're in the military they always want to cook yeah I want to cook but I mean I mean the fact of the matter is the fact of the matter is when they do their job they're always making assessments that are very specifically fact-specific they're eating soup with knives there you know your soldiers wanted it on a three by five wallets right that's right that anymore and that's why you remember what general McMaster said he said that you have to get the troops to internalize certain values you know so and that's really what you aim to do when you're actually executing law so I think that you know we saw norms evolve with Nuremberg I was thinking about this recently when you never had individual responsibility for wage and aggressive war and Nuremberg court basically said to the Nazis hmm we got to start somewhere you guys are unlucky you're the first guys in just a minute I want to move to questions from the audience but let me ask Nas and Laura can we could you have a nonviolent war in which no one dies and no one is injured yeah I'm gonna I'm not gonna say it's a cookbook but I'll give it a try I think if you had the sleep wand and the part where I'm I think the line drawing would happen is the element of control over other people right so there's a sense that what what what is the law of armed conflict about it's a body of law that says when you come in to control other people I thought about preventing suffering means methods of well yes right so nobody's suffering they're sleeping but they are so you said you could occupy them right so if they're asleep and you can occupy them so for example the law of occupation apply when there's no resistance right the law of occupation applies even in a case where the invaded country says come on in you occupy us we're not going to fight why because the law of occupation is meant to protect those with the who are under the control of the other side so I'm going to go ahead and say yes sleep want law okay but that seems to me everything is now war I we can exercise control over people in any number of ways economic coercion psychological coercion why shouldn't I just say it's all war it's all weapons law of war applies to everything how do I draw any I don't okay so I can't have a cookbook but now I feel like there is no basis whatsoever for me to draw the line between sleep one was still coercive yeah that was Naz's point so are my sanctions well but you don't think the law of war applies to thank you I'd like to jump in actually and not answer your substantive question but I I actually think that you've highlighted the fact that the law needs to evolve and I think the big question is how because international law is notoriously slow and lumbering and state-dependent and state-dependent so this is why I think we need to look more towards soft law codes of conduct and other processes for helping the law to evolve we can take the evolution with respect to oversight and accountability of contractors as an example so through the Montreux process which was essentially a soft law processes for states to come together and articulate how these new norms how the existing norms ought to apply to contractors I think that's a relatively good model I also think that codes of conduct are important and again with respect to contractors we have some really interesting developments in this area the code of conduct for private security contractors is actually a very robust document normatively in terms of filling some of the gaps in the law and it was able to bring non-state actors the industry human rights groups to the table in working out these gaps but I'm not done making things more complicated let me go one step further still before we open it up for the audience it's powder not so so my magic wand is lies in the future but but maybe not that much in the future given technological developments some on the all rate the evolution of non-lethal weapons already another phenomenon that we have seen both when it comes to drone strikes when it comes in the future in terms of biologically linked modes of warfare is what you could call the individualization of warfare or the personalization of warfare you call it Charlie that increasingly the sort of combination of very precision targeting technologies whether whether they're kinetic or or sort of biologically DNA linked with the world of big data enables us to do something then in some ways is fulfills some of the dream of humanitarian law enables us to distinguish with ever greater perfection between the combatants and the civilians so I don't any longer have to you know fire bomb Tokyo to get rid of my enemy and kill thousands upon thousands of people most of whom are innocent civilians I can now say I'm gonna get that guy that one bad guy and I with the drone strikes it today maybe tomorrow with a biological weapon maybe the day after tomorrow with my magic wand so I don't even need to incapacitate all of my enemies all I need to do is use my magic wand to hypnotize a couple of key leaders and they fall asleep and that's the end of their you know we then take over so is this a good thing that we should all dream of and say how wonderful we can now soon we will be able to be perfectly discriminating no one innocent will have to suffer we can direct our non-lethal painless coercive methods only against the bad guys Bashar al-Assad will fall asleep al-Baghdadi will fall asleep et cetera and won't it be a wonderful world or should we or should this scare us enormously as a sort of Orwellian future in which those who possess these technologies can assert near total control and either way should we call it war well I think we should call it war and I call it the hyper personalization of war I've written an article about this recently where we see the potential marriage of big data drones facial recognition software were on the battlefield or elsewhere you can attack very specific human beings and I think Rosa has has talked about the good side but there is a dark side as well because I think I was talking about the dark side the good side is we're only killing certain certain people I think it'd be very destabilizing for armed forces you know because part of the ethic and the warrior code is that you're fighting for each other well and that's the shared risk and you would no longer have that shared risk because only certain individuals were essentially be at risk and it raises a new way of propaganda so to speak because in the future adversaries with gathering big data will be able to go to the families of individual soldiers and say we know where your son is or your daughter and we're going to kill him tomorrow unless you go out and and protest and we see some of the things coming from from some of the hostages that were killed how powerful that can be in the national conversation and so I I don't know where that's going to go but I think that we would consider that that war whether we want to evolve the law to to prohibit that or not I think it is something that worth a discussion about I agree with Laura about that wholeheartedly but you know while we're speculating about cyber and and magic wands and the like we all have to remember that lots of very kinetic brutal conflicts are going on right now and for the foreseeable future using the first world problem it's a first world problem yeah I think it is a very sad commentary that as much as we've been talking about high technology weapons here the most horrific war crimes have been very low-tech burning someone alive in a cage so we have we have the luxury of worrying about my magic wand and other people are being burned alive in cages which brings up you know an underlying I'd like to hear my colleagues on this an underlying rationale for support for the international law of armed conflict is reciprocity and Ken Anderson wrote something on this on lawfare not too long ago where he reflected on the fact that that we don't have reciprocity really now with so many of the adversaries that we face so and that was always a powerful rationale for adherence to the law where are we going to go in the future and and I think that again HR mentioned it it's ourselves and our own ethic I think there's another part of it that you know I call lawfare that maintaining public support but I'm not sure that's enough and that's like to hear what let me if you don't mind let's let's let's put that on hold for a few minutes it may come up in the questions and if not we'll circle back to it before we end in final comments but let me instead invite people in the audience to ask questions press to introduce yourself and keep your question brief you noddy hi Nadia Shadlow Smith Richardson Foundation so you're sort of alluding to this at the end of the panel but I'm not a lawyer and I don't actually follow this issue that closely laws of war but it seems to me that this is a very Western driven conversation fundamentally and who are your counterparts at a different conference in Moscow in China somewhere in the Middle East are their counterparts I mean are you working these issues day to day with with you know the other side essentially and if it is primarily a Western driven conversation aren't there just inherent limitations to it all so well in 1999 Chinese colonels wrote a book called unrestricted warfare is really a monograph and it's on the web somewhere where they basically said exactly that naughty they said this is a Western concept we're not going to follow those rules and if you go through there they're going to do everything fast forward to 2013 when they issued their their their doctrine on the three warfares one of which was critical warfare and so they have a very sophisticated way in which they intend to use law they've actually operationalized it to a much greater extent than the US has and you can see it at play in the South China Sea dispute they are prepping I don't want to say the battlefield but that that's a you know military phrase but they're they're laying the groundwork and the Russians very interestingly and if you listen to some of the things Putin talked about he talked about Kosovo's unilateral declaration of independence and how the ICJ bless that and hey what's the difference and so they are conscious of law in ways that they might not have been years ago and I think it has a lot to do with globalization something that somebody one of our earlier speakers or well is Harold Coe he said that you know countries now have to have international law because of international commerce in essence and so I think that anything that happens in the commercial realm will bleed over into warfare and I think we've seen law that way so long way around of saying is that I think short of an all out you know kind of nuclear weapons case the ICJ nuclear weapons case where they go on for 400 pages how hard horrible nuclear weapons are but in the last paragraph they say but we can't say they would necessarily be unlawful in the case of the survival of the state so I think that law even though it does originate in a Western concept is applicable and is thought about in other domains it's also you know part of the theme of the conference if you think about the conflicts that are going on outside the kinetic realm now and cyber for example the US and China the US and Russia the US and Iran we're at one another in the cyber domain and some would say that's a pressure release valve it's a helpful way to ameliorate more harsh conflicts yeah I think I take your question not being served are the foundations of the law Western but is the conversation we're having today about these dilemmas very Western oriented and my answer is yes and I would add to that I think there's a tendency when we focus on these are super futuristic questions to think of this body of law as being only about targeting or only about killing or only about weapons and I think part of what's missing in the conversation we're having on these issues is also the perspective of the communities affected by this violence the perspective of those that are living through these many years of conflict and and how do they understand which are the most important dilemmas and rules and if I could just add that international law processes well often fraught and contested can provide a forum for global communities to have a dialogue and one of the reasons why soft law processes and codes of conduct I think are really important places to take these debates is that they allow for non-state actors to participate in the dialogue a question over there hi yawning cascada some senior fellow with new america I must admit I have so many questions to ask you I don't even know where to begin primarily because you know five lawyers up there you're not charging by the hour I'd love to ask you so many so here's here's I'll give you a passing around the collection exactly okay you mentioned and you focused on definitions early on in the discussion which I think it's fascinating and really important you talked about combat it you know different combatants you talked about different weapons and wands and everything how about enemies in terms of defining the enemy and my question really goes to specific thing about the Taliban and ISIS they use similar tactics they use similar things they're killing Americans they're not burning them in cages but when she called them terrorists and and what's the implication of calling them terrorists and perhaps from your legal perspective thank you very much I think there are implications probably more rhetorical and political for calling them terrorists which is that I think you have to choose right so if you're in war and you have an enemy in war then you are fighting them on the however imperfect in an armed conflict contest with the law of armed conflict applicable which means if they lawfully target you that is not terrorism it is a lawful targeting not civilians of course but your soldiers who are fighting in Afghanistan if you want to frame it as terrorism fine but then you don't get to use the law of armed conflict to target them either I think we have time for one more quick question so let's see here in the back over there I have spotlight shining my eyes so I can't see you my name is Intazar I'm from Afghanistan in the current country fellow in ASU so I would like to ask by the coach of Sun Zhou Chinese philosophy and he said that the post-war challenges are more disastrous if you remain the enemy only did not kill it we are definitely talking about the future of war but there are some war remain bungling in uncompleted so my question is that whether there is a gap or a problem in line policy that should address the context contextual need of the war in the United States or there was a problem in practice because we have a very good example of Iraq in Afghanistan I'm sorry sir I could not 35 years in the Air Force with loud things really hard for me to hear the problem is in law or policy that should define the war in enemy in Afghanistan Iraq or that was a problem in practice in the ground in Afghanistan because there were some strategic blunders we committed in Afghanistan Iraq that's why the war is not has been won the way that should be you've silenced us you've left us stunned in silence and therefore there will be no charge for for not answering your question let me let me we're we are I'm told I have a little red blinking light facing me so we need to wrap up but let me let me just invite each of you starting with Laura coming this way to offer any final thoughts that you would you know what would you like to leave the audience with on this broad question of do we need to make any change should we just say okay the law is good enough that it'll evolve don't worry this story will end happily it just may take a little time or are we in a crisis how should we be thinking about this I think the law is straining almost to the breaking point and we urgently need evolution of the law we need better processes for pushing the boundaries of the law and perhaps developing new norms substantively and then the other big thing is enforcement and accountability is quite weak in these new areas and so I think we need to put a lot more effort and focus on accountability and enforcement I think that I'm more worried I'm not as worried about the law as I am about the conversations that we're having about the law and my sense is that that a group such as this and others who are interested in these issues should feel that they have a stake in the legal questions that it's not only for lawyers to figure out or debate over endlessly but that all of us have a stake in how these questions are answered and in the ways in which we talk about these dilemmas and to become more informed and engaged in how states and others are thinking through the legal questions is for the benefit of us all I certainly agree with that latter point I think don't be afraid of the law you know we have this mystique and we use funny language oftentimes but it is really about the policy here and we're all informed and need to be participating in conversations about what the policy is going forward second comment I would make is that states including the United States need to be more forthcoming about their policy positions I think the United States has done a better job in recent years at articulating what its policies are in various areas involving warfare other states need to do the same and we need to talk to each other just very quickly I do think that the law is evolving I don't think it's it may be near the breaking point but it's not at the breaking point because it is being used at least in advanced countries I do think though that we need to do a better job at educating the lawyers as to the technologies and means and methods of warfare I don't know how many conferences we've been to where you hear very early lawyers talking about the you know the head convention 1907 and what somebody had a set of her coffee but they don't know how a drone works you hear people thinking that's like an autonomous weapon system or something like this and so the law is developing and bills made an important point with Laura is correct in that soft law is helping to develop international law of our conflict but remember the the promoters of soft law don't have the same responsibilities as states no NGO is responsible for the security of the United States so states have a very important function and they are not fulfilling that function the opinion of jurists and my friend Mike Schmidt has written a very important article along this line states have to be more forthright because international law is fundamentally the relationship between states and if they abdicate that to those who do not have the responsibilities of states you'll see develop in a way that may not be to your liking okay well thank you all this ends our panel this does not end today's conference next up is admiral Michelle Howard the vice chief of naval operations so please don't go away thank you all