INTERVIEW: Tanisha Fazal explains how the US dodged its legal obligations during the war on terror

Heba Abdelsattar, Saturday 9 Oct 2021

The US exploited international law in the war on terror. This particular war is a reflection of changing trends in the laws of war, its concepts, and its nature.

Tanisha Fazal is an associate professor of political science at the University of Minnesota and Notr
Tanisha Fazal is an associate professor of political science at the University of Minnesota and Notre Dame, and co-director of the Notre Dame International Security Programme

Tanisha Fazal is an associate professor of political science at the University of Minnesota and Notre Dame, and co-director of the Notre Dame International Security Programme. Her first book, The State Death: The Politics and Geography of Conquest, Occupation, and Annexation, won the Best Book Award on Conflict from the American Political Science Association. The book examines why some countries die while others survive, and the role of the United States in this transformation. It concludes that the fate of sovereign states is largely determined by geopolitics, changing criteria, and rules of occupation and conquest.

Her second book, Wars of Law: Unintended Consequences in the Regulation of Armed Conflict, takes a comprehensive look at the changing trends in the laws of war over the past 100 years. It also monitors the strategic use of the laws of war and the reasons why states stop issuing official declarations of war even after they had gone to war because declaring war brings legal consequences that states seek to avoid, such as stigmatisation, media scrutiny, and convictions of war crimes. 

The unfortunate consequences of this have been that states are waging increasingly fuzzy wars to avoid scrutiny and shirk their legal responsibilities, as happened in the war on terror. 

In this interview, Fazal reveals how the US imposed the “death of the state” in Afghanistan and Iraq, how it evaded its international legal obligations during the war on terror, and the reasons why the American people did not feel the burden of that war.

Ahram Online: The State Death is the first book to systematically examine the reasons why some states die while others survive, and the role of the US in this shift. You have explored 200 years of military invasion and occupation to come to the conclusion that the fate of sovereign states is largely a matter of political geography and changing norms of conquest. Do you think the US has imposed state death on Afghanistan and Iraq by subjecting them to civil conflicts?

Tanisha Fazal: One of the main findings of my first book is that the nature of state death has changed significantly after 1945. I see the Afghan and Iraqi cases as being part of this change; instead of absorbing states via territorial conquest, there has been a shift to replacing regimes and leaders. 

For me, the important question is whether and how this shift might matter for the people living in affected countries (those who are living under occupation). While the norm against conquest and changes in sovereignty norms have led to some improvements globally, in other ways not much has changed, especially at the local level.

I think it’s also possible that the norm against conquest could be eroding. Russia’s invasion of Crimea was a clear norm violation, but one that was not really challenged in any significant way. We’ll see what happens with China with respect to its territorial disputes. It’s worth thinking through which would be worse, and by what metric: a return to territorial conquests of old, or the maintenance of the current structure of international norms?

AO: Despite the benefits of having institutions and legal measures in place to regulate callousness in warfare, it seems that states are no longer willing to play the game legally. Why?

TF: I disagree with the premise of this question. I think states are very much “playing the game legally,” and that, in some ways, this is precisely the problem from a humanitarian standpoint. Let me explain. Rich states in particular invest a great deal of time and resources to figure out how they can achieve their policy goals within existing legal frameworks. Often, this means that they follow the letter of the law – or, at least, that they have constructed an argument that that’s what they’re doing – while violating the spirit of the law.

AO: Do you mean that the main issue here is the extent to which the states succeed in using the law as a tool to justify their violations legally while violating the spirit of the law?

TF: Exactly. States use international law in political ways to serve their interests and objectives. This shows how manipulable law could be, and how it could be a tool for states as much as a constraint upon them.

AO: States are increasingly prioritising security benefits over humanitarian values, as is the case with the US and the war on terror. How had the US legally dodged its international obligations during the war on terror, especially in practices such as torture, extrajudicial killing, and surveillance?

TF: I don’t think the US is unusual, today or historically, in privileging security imperatives over humanitarian norms. I say this not to excuse the US’ behavior, but to put it in broader context. I’m sure your readers can come up with many, many examples of states – especially strong states – violating norms both in their foreign relations and domestic politics.

I think it’s important to be clear about the nature of international humanitarian law (IHL, sometimes also referred to as the laws of war, law of armed conflict, or jus in bello). For example, codified IHL does not necessarily prohibit killing civilians. The unintentional killing of civilians can be legal. IHL requires that belligerents balance three principles: observing the distinction between civilians and combatants, engaging in proportionate actions, and military necessity. Actions that appear morally wrong are not necessarily evasions of IHL.

Nonetheless, there is no doubt that the US has developed a creative relationship to IHL during the war on terror. Indeed, the title “war on terror” is itself a problem because wars are waged against people, not military strategies. This vague framing of the US’ conflicts, especially over the last 20 years, has always been concerning, and raises two important points. First, codified IHL has historically been most precise in its governance of wars between states, which is not really what has been happening in the GWOT. And second, this imprecision has, in some ways, allowed the US to chart its own path in navigating legal and military constraints.

AO: How do the consequences of the separation between the lawyers who write international humanitarian law and the military personnel who have to follow it influence the form of war, if we apply this to the war on terror?

TF: A key point that is often overlooked is that laws of war often follow wars, and are shaped by them. To some extent, the lawyers who make IHL are often “fighting the last war.” We observe this phenomenon in a lot of the “connective tissue” of the laws of war. We haven’t seen a new set of Geneva Conventions – at least, not yet – but we have seen a great deal of legal writing about the GWOT as well as a revised set of commentaries on the 1949 Conventions from the ICRC in recent years. 

Because IHL has historically been negotiated between states, and because state interests often clash with each other as well as with those most interested in advancing humanitarian norms, movement in IHL often occurs much more slowly than humanitarians might like.

AO: In light of the Afghanistan papers, how has the US occasionally failed the rule of law and the ideals of liberal democracy during the war on terror? And how did the legal structures meant to constrain presidential maximalism in that war fail during the Bush, Obama, and Trump administrations? 

TF: The Afghanistan papers really demonstrate that the three branches of the US government have not been equal in the US’ prosecution of armed conflict abroad. Specifically, Congressional oversight has not been nearly as strong as it should have been. We see this especially with the long duration of the 2001 and 2002 Authorization of the Use of Military Force. One reason these wars have gone on so long is because their true costs to the US have been obscured. 

US wars today are financed via debt, rather than taxes. And US military medicine has become so good that we sustain very few fatal casualties – and people pay more attention to fatalities than the wounded. Because such a small percentage of our population serves in the military, most US citizens don’t observe these costs directly. 

There’s also been a real shift toward the fetishization of the military in the US. All these factors have contributed to the crisis of democracy we see in the US today. And these points, of course, do not even attempt to capture the costs to people living in areas targeted by the US during the GWOT or, for that matter, to victims of Islamophobia in the US.

AO: Since 11 September 2001, armed non-state actors, such as extremist groups, have been in the spotlight. It appears that nothing distinguishes state from non-state military behaviour. Many non-state armies now fight more “conventionally” than state armies and the internal politics of non-state actors determine tactics and strategies. This was clear in Afghanistan and Iraq in the past 20 years... 

TF: There is a lot of really excellent recent research on non-state armed groups' fight. One possible implication of this is that non-state armed groups should have the same standing in international law as states. But the reality is that states make international law, and they are generally unwilling to accord that kind of legitimacy to the non-state armed groups that are their opponents. So for me the real question is, which non-state armed groups might be more or less likely to target civilians? Here, I think the answer has to do principally with the political aims of those groups. 

Groups that seek international recognition – and, especially, secessionist groups that seek recognition as a new UN member, for example – tend to be less likely to target civilians in part because they want to convey to the world that they will be good and responsible members of the international community if they are admitted to the club of states. It will be really interesting to see how this dynamic plays out in the case of the Taliban, who seem to be approaching the question of international recognition differently than in the past. But I’m sceptical that the Taliban will be as constrained as some other groups have been.

AO: The 20-year US war on terror ended with a formal peace treaty. Why didn't the US sign this accord after the main mission was completed there?

TF: I think the timing of the US withdrawal from Afghanistan has a lot to do with who the current US president is, and who the last US president was. Both Trump and Biden really wanted to end the war. But just as the US didn’t anticipate the duration of the war, it appears to have planned poorly for its conclusion. 

I think a key issue here speaks to the agreement with the Taliban. Aside from the substantive problems with the agreement (which, by the way, is not a peace treaty, because US treaties have to be ratified by the Senate), the fact that the Afghan government was not a party to the agreement was an early signal of problems to come.

AO: You have assessed the unintended consequences of the proliferation of the laws of war for the commencement, conduct, and conclusion of wars over the course of the past 150 years. To what extent have these consequences changed in the war on terror during the past 20 years?

TF: The “borders” of war have become much fuzzier. It’s hard to know when wars begin and end. It’s even hard to know what “counts” as a war. I think that the international legal landscape has created incentives for states to try to create ambiguity about what they’re doing so that they can limit their legal liability.

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