Power Through Clarity: How Clarifying the Old State-Based Laws Can Reveal the Strategic Power of Law

28 Pages Posted: 13 May 2009

Date Written: May 13, 2009

Abstract

As the United States takes on the violent non-state actors, whose arsenals now exceed those of many states, policymakers and leaders should not give up on the “old-fashioned” rules designed for relations among states. When properly clarified, the rules reveal powerful avenues for defending national security against non-state threats like Al Qaeda. While we cannot wage war against non-state actors and remain consistent with international and constitutional law, we can use force against those who take a direct part in hostilities, commit violent attacks outside the jurisdiction of any state, or engage in action sufficiently hostile to warrant immediate measures in individual or unit self-defense. Ultimately, force will not solve many of the great twenty-first century security challenges on its own - for national security must be a national exertion just as international security must be a global one - but, there is great cause to hope that in the next decades, a renewed embrace of the international and constitutional law of war will fully reveal the empowering abilities of both and the law’s ability to enhance the security of all.

Keywords: direct participation in hostilities, war, use of force, self defense, terorrism, detainees, state, non-state actorr, piracy, Somalia, Pancho Villa, Pakistan, Al Qaeda

Suggested Citation

Bahar, Michael, Power Through Clarity: How Clarifying the Old State-Based Laws Can Reveal the Strategic Power of Law (May 13, 2009). University of Pennsylvania Journal of International Economic Law, Vol. 30, No. 4, 2009, Available at SSRN: https://ssrn.com/abstract=1403883

Michael Bahar (Contact Author)

JAG Corps, U.S. Navy ( email )

1322 Patterson Avenue, SE
Suite 3000
Washington Navy Yard, DC 20374
United States
202 685-5190 (Phone)

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