Linking Purpose and Tactics: America and the Reconsideration of the Laws of War During the 1990s

The critique of the laws of war (and international law in general) coming out of America as the war on terror began seemed to have emerged as a response to the horror of 9 ⁄ 11 and the belief that the United States was now engaged in a ‘‘new paradigm’’ of warfare. However, the Bush administration’s argument needs to be situated in a wider historical context. The source of the arguments against applying the Geneva Conventions to the prisoners caught in Afghanistan emerged well before 9 ⁄ 11 and can be traced to the end of the Cold War. These doctrines emerged out of the work of the ‘‘new sovereigntists’’ and out of the frustrations guided by coalition warfare. This paper seeks to trace the origin of these arguments which challenge the traditional division between jus ad bellum (the law governing the resort to force) and jus in bello (the law governing tactics in warfare).