Prof Rethinks The Laws of War

On Oct. 5, The Crimson sat down with David W. Kennedy, Hudson professor of law at Harvard Law School, to talk about his new book “Of War and Law.” (See review on page B5.) Kennedy discussed topics ranging from the central message of his book to why the Bush administration is getting bad legal advice.

The Harvard Crimson: First, tell us a little bit about the subject of your new book.

David W. Kennedy: The book is about the relationship between law and war and it makes two big arguments. One is that war has become much more of a legal institution over the last period, and secondly, that although law has gotten into the crevices of warfare in lots of different ways, that doesn’t mean that law only operates to restrain the use military force: law is also an enabler of military violence. And those of us who hope to see a more humanitarian approach to warfare need to understand the strengths and the weaknesses of using law to restrain conflict.

THC: Could you give an example of a way in which the law could act to actually legitimate more brutal conflict?

DK: If you think about killing on a battlefield, why isn’t it murder? Well one of the reasons that it’s not murder is that soldiers, if they act in particular ways, if they’re wearing uniforms and so forth, they are privileged to kill. “Privilege” is a technical legal term that means they are enabled to kill combatants and also civilians so long as they are doing it for a legitimate military purpose and injury to civilians is necessary to achieve their military objective. That’s where you get words like “collateral damage.”

THC: Is it the United Nations that is passing these kinds of international laws?

DK: No, it’s a much more decentralized operation than that. There are lawyers in every military today, and they are working with counterparts in their coalition partners and with private contractors to work out rules of engagement and modes of collaboration that are effective, or that they feel will be effective, in the conflicts they are fighting.

THC: So it’s not like they are making legal agreements with the other side that they are fighting against.

DK: No, although it’s actually quite striking, even in today’s asymmetric warfare, how much people on opposite sides are speaking the same language. You saw that in the conflict in Lebanon last summer, where both Hezbollah and the Israelis were citing UN Security Council resolutions, and were claiming that tactics used on the other side were “disproportionate” or “not necessary.” They had very different understandings of what those words meant, and they were citing very different Security Council resolutions, but they were all playing to a global media audience that understood the legitimacy of their cause at least in part in terms of their ability to frame it in legal terms.

THC: Do you see any potential for a solution or a way to move forward, not using law to legitimize conflicts? Or do you see that legitimacy as necessary?

DK: When law works well, it helps provide a vocabulary for communicating across very different cultures about the legitimacy and desirability of violence. When law doesn’t work well, it gives everybody the sense that they are entitled to do what they are doing, that their cause is just and that the other side is just despicable. In that sense it can harden positions and make it harder to communicate across different cultures.

THC: Because they think they have the law on their side.

DK: Exactly. Everyone thinks they have the law on their side. One of the things I’ve been most concerned to do in the book is awaken all of us who share the hope that the violence in warfare can be constrained to the limits of law as a vehicle for [achieving that goal].

THC: What drove you to write this book now?

DK: Well the book arose out of research I’ve been doing for a number of years. I was a conscientious objector in the Vietnam War, and over the years since then, I’ve found myself rethinking my position many times, often as a result of my interactions with students, who either come from a military background and have helped me to understand the complexity of the professional military today, or who are humanitarians seeking to use force for a variety of different humanitarian purposes around the world, whether in Darfur or Bosnia, or wherever. All of that interaction in a classroom led me to rethink the relationship between law and war, and the book emerges from a decade-long process of thinking about that.

THC: What opinion do you have of the Bush administration, especially when it comes to various legal issues, like torture or Guantanamo?

DK: Well I’m not sure the Bush administration has been giving the best legal advice. If you think of advising a commercial client, you would rarely advise the commercial client that because you can come up with a technical reading of the statute that makes what they are doing permissible they should go ahead and do it.

You should also take into account how other people would react to that, that somebody would litigate, some prediction about what the courts would find.... In international law there are no courts other than American courts and the American Supreme Court to be concerned about, but there is the court of public opinion. And I think the lawyers advising the Bush administration missed an opportunity to use law to structure a more workable and acceptable approach and strategy in the current conflict.

THC: One final question—if you could choose one faculty member or well-known Harvard personage to be stuck with on a desert island, who would it be?

DK: I must say when I think of being stuck on a desert island I’m not usually thinking of colleagues from Harvard—I think I’ll leave it at that!

—Staff writer Dina Guzovsky can be reached at dguzovsk@fas.harvard.edu.