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America’s Existential Challenge: Pandemic, War and Law
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America’s Existential Challenge: Pandemic, War and Law

From the beginnings of his crudely acrimonious presidency, Donald Trump has actively undermined US foreign policy relationships. On urgently key matters of world politics and international law, Mr. Trump’s typically invalid conclusions have generally been drawn from narrowly belligerent premises. Truly, the main problem with such faulty presidential arguments, however, has not been Trump’s gratuitously corrosive premises per se, but rather their implications for national security and world legal order.

Uniformly, these implications have been egregious and baneful.

There is more. On matters that reveal expressly military content, this president’s determined violations of logic must also be characterized as counter-productive, harmful and negatively “force-multiplying.”

In the case of Donald Trump’s multiple policy synergies, the “whole” policy consequence of this president’s cumulative reasoning process exceeds the sum of its various “parts.” Looking back at the entire history of the United States, there has never been such a wittingly defective and determinedly injurious president. Now, at a particularly fragile moment when all the “normal” hazards of “Westphalian” geopolitics have not been diminished, this president’s current liabilities are being accelerated by yet another level of existential challenge. This is the wholly unpredictable challenge of disease pandemic.

When one takes into account both the manifold derelictions of Trump’s conceptual and legal misunderstandings concerning
war, terrorism and genocide and the visibly expanding hazards of COVID-19, only one conclusion can make any sense. In essence, it is this: We Americans currently face a “perfect storm” of catastrophic decline and potential collapse. Still, at any willfully ignorant presidential command, our collective difficulties could worsen further. Indeed, at this once unimaginable point of chaotic uncertainty, there has even been high-level and official talk of Trump cancelling the November election as an allegedly precautionary measure.

From the mutually reinforcing standpoints of national and international law, any such cancellation would have immediate and very far-reaching consequences.

For most legal observers, any such cancellation contingency may still seem inconceivable – even amid continuing bad news about the pandemic’s spread and lethality – but delaying or canceling the next election would be consistent with various other law-violating aspects of the Trump presidency. Whether we look to the incessant presidential cronyism or instead to Trump’s calculably flagrant unconcern for peremptory human rights anywhere on earth, there is no good reason to believe that even core expectations of the US Constitution will always be held sacred at the Trump White House.

Trump believes, mistakenly, that anarchic world politics and Westphalian international law are here to stay, forever, and, still more ominously, that these patterns deserve to endure. In consequence, he offers no plausible hopes for any American leadership that is willing to transform or moderate our rapidly disintegrating world legal system, a conflict-based system of “everyone for himself.” This suggests, among other things, that the darkly injurious consequences of Trump’s deformed and law-violating foreign policies are rapidly becoming intolerable. Moreover, these fearful consequences point toward something incrementally far worse than “mere” anarchy or “Westphalian” law.

Now they point directly to national and worldwide chaos.

What happens next, in both law and practice?

In principle, at least, even during an American era that openly loathes both intellect and learning (think, for example, of Trump’s brazen substitution of his own purported scientific/medical authority on controlling pandemics for that of distinguished epidemiologist Dr. Anthony Fauci), we should begin by “looking back” at expressions of authentic political thought. Accordingly, in his seventeenth century work of classical philosophy, Thomas Hobbes
– a little-read but foundational author of the eighteenth century American Republic – explored deductively “the natural condition of mankind.” Published just a few years after the 1648 Peace of Westphalia created the modern state system, Hobbes’ Leviathan placed primary emphasis on geo-strategic and legal context.

More precisely, this key thinker’s analytic focus was directed toward assorted crucial connections between individual or personal weaknesses and world system anarchy or chaos.

Among Hobbes’ principal conclusions was the following: In the “Westphalian” legal system of multiple and independent states, a condition of permanent war obtains, not just where there exists “actual fighting,” but also at any time where there should still remain “a known disposition thereto.” And Hobbes was not even taking into account the rare but plausibly catastrophic factor of a worldwide disease pandemic.

Still, one needn’t be a historian, political scientist or legal scholar to understand that such a relentlessly insidious disposition to conflict remains fully current in 2020. At the present historical moment – especially in consideration of the increasingly verifiable evidence for ongoing nuclear proliferation – we are devolving ever further from traditional anarchy and toward a more stubbornly remorseless and hard to fathom chaos. It follows, for scholars and relevant policy makers, that to better understand America’s changing strategic posture amid constantly dissembling presidential transformations, substantially more attention must now be oriented to understanding world system dynamics and pertinent international law.

This imperative is all the more compelling because of the already-staggering impact of the Covid-19 worldwide disease pandemic.

But what does all this really mean or signify? In brief, it suggests a more consciously contextualized focus on armaments, alignments, power balances and delineated “orders of battle.” Among other things, this suggestion must include a greatly heightened willingness to analyze and examine these listed factors not just as singular or isolated variables of differential importance, but also in various plausible intersections or synergies with each other. By definition, every theory represents a simplification, but this fact ought never be taken as a general license for policy-centered theoreticians to overlook relevant analytic and/or legal complexities.

In its broadest contours, the basic American security dilemma is not complicated. By easy extrapolation, after all, anarchy could soon take on unmanageable and catastrophic forms. At that stage, anarchy could seem benign, or simply be taken as an oddly positive or nostalgic reminder of once seemingly-better days. At that grievously ironic point, of course, “mere” Westphalian anarchy would have been supplanted by chaos, and world law could discover its operational anchor elsewhere.

What then? What would happen to already-decentralized world legal arrangements in a time of chaos? Though hardly compensatory, there would then present an optimal occasion for seeking greater precision in absolutely all corresponding analyses. American strategic thinkers must already understand that certain refractory threats still lying ominously ahead may originate less conspicuously with formidable enemy armies than with multiple forms of decisional miscalculation or inadvertence – threats now being magnified or “force-multiplied” by a many-sided pandemic.

An even more primary axis of conflict in world politics will now require closer conceptual attention by American strategic thinkers and planners. Recalling Thomas Hobbes’ definition of war not merely as “actual fighting,” but as a “known disposition thereto,” US President Donald Trump or his successor should take more explicit note that we already coexist well within certain constraints of “Cold War II.” This expanding adversarial posture between Russia and the United States is both similar and dissimilar to the original Cold War. It defines, inter alia, the most basic context within which all US nuclear strategy must from now on be fashioned or nuanced. Significantly, even this “most basic context” will be impacted by myriad hazards of worldwide disease epidemic, primarily by their largely unpredictable effect upon national decision makers and by their similarly unknowable effects upon Great Power decisional synergies.

In a world increasingly prone to periodic and primal conflict, the role of nuclear weapons will need to be much more closely and specifically considered. This overriding moral and legal obligation pertains not only to the nuclear capacities and intentions of the United States and its most obvious foes, but also to their several and most probable intersections with other countries.

Again, such plausible intersections could sometimes become “synergistic.” In their inherently bewildering task, therefore, American strategists would need to best ensure that (1) there were no further spread of nuclear weapons among recognizable state or sub-state enemies, and (2) attempting to counter any one designable enemy would not wittingly or unwittingly assist another. Even more potentially bewildering in these pandemic-focused times, these strategists would need to take meticulously proper account of expanding disease impact upon enemy decision-makers and on our own leaders.

This will not be a task for thinly-educated, narrowly political or commerce-oriented personalities.

Soon, too, American decision-makers will need to more fully acknowledge that geo-strategic context can be broadly intellectual rather than just narrowly geopolitical or geographic. Or as expressed in terms of Thomas Hobbes’ argument about the Westphalian “state of nature,” America must do whatever it can to avoid the emergence of any “dreadful equality” in enemy nuclear capacity. Here, still more precisely, Washington could learn purposefully from Leviathan, “…the weakest has strength enough to kill the strongest.”

For a present-day example, no matter how “powerful” this country may first appear vis-à-vis its pertinent adversaries, even a seemingly “less-powerful” North Korea could sometime bring nuclear harms to the United States. We ought not to be looking, therefore, for any engineered or enlightened “democracy” in fashioning US national nuclear capacity.

Prima facie, in the more formal parlance of original Cold War nuclear theory, any nuclear harms would be “unacceptable.”

Strategy is a “game” that an American president must always be prepared to play with conspicuous skill and also with due consideration of corresponding legal expectations. Behind the manifold complexities of such an expanding chaotic context is the derivative obligation to see things through the eyes of each applicable adversary. Fundamentally, this must quickly become a psychological or psychiatric obligation, one not in any way specific to any orthodox military calculations. It has been succinctly summarized by existentialist thinker Rollo May in The Discovery of Being (1983): “The problem is how we are to understand the other person’s world.”

Now, of necessity to make these matters more of an analytic problem, we must add: “…during a time of pandemic.”

Sooner or later, a visibly stark juxtaposition of pre-modern ideologies with nuclear weapon systems could present a unique challenge to the United States for dealing with chaos. This complex and pandemic-affected challenge could be exacerbated by (a) persistently “opaque” considerations of enemy rationality; and (b) steadily expanding uncertainties of decisional miscalculation and/or escalation. These overlapping factors could become still more daunting whenever the dynamic relationships between them become determinably synergistic at a time of expanding worldwide biological adversity.

There is more. Struggling amid chaos, it should realistically be expected that we would fail to discover any reassuring succor in international law. This plainly regrettable expectation is reinforced not only by President Donald Trump’s unilateral US withdrawal from the JCPOA 2015 Vienna Pact regarding Iran, but also by US withdrawal from the INF Treaty with Russia. Today, one might also add Donald Trump’s needless and generally injurious attacks on the World Health Organization in Geneva, or his continuing attempt to deflect blame for all pandemic harms upon Beijing.

To be sure, thinking people all over the world are still shaking their heads in disbelief about these wholly destructive and irrational US presidential deflections, actions that further undermine certain residually indispensable features of international law.

One notable consequence of shortsighted Trump behaviors is that the United States will have to deal with effects of a nuclear Iran in a shorter period of time and will then to face simultaneously an expanding nuclear arms race with the Russian superpower. It should prove unsurprising, therefore, when an already palpable global slide toward chaos eventually becomes overwhelming and unstoppable.

What then?

For the US, the expected perils of any emerging primal chaos must be particular and unique. Conceivably, the calculable probability of world system chaos could be enlarged by certain unforeseen instances of enemy irrationality. If, for example, America should have to face a Jihadist adversary that would value certain presumed religious expectations more highly than its own physical survival (e.g., Islamic expectations of a Shahid or “martyr”), this country’s applicable deterrent could be correspondingly diminished or even immobilized.

Presumptively worst case scenarios would involve an irrational nuclear North Korea or Pakistan; that is, in essence, a nuclear suicide-bomber in macrocosm. Here, once it had been convincingly determined in Washington that enemy leaders were meaningfully susceptible to certain non-rational judgments vis-à-vis the United States, this country’s rational incentive to strike first defensively could become overwhelming or even irresistible. Naturally, however, there could then be no reasonable or reciprocal assurances that actively yielding to such an incentive would be in the overall security interests of the United States.

None at all.

There is more. America could discard the preemption option – one that would likely be described in more expressly legal terms as “anticipatory self-defense” – but it would then still need to identify other usable and multi-vector strategies of secure deterrence. Any such identification could then further require diminished ambiguity about selected elements of this country’s nuclear forces; an enhanced and at least partial disclosure of certain strategic targeting options; more substantial and simultaneously less ambiguous ballistic missile defense postures; and/or increasingly recognizable steps to ensure the perceived survivability of America’s nuclear retaliatory forces.

Going forward, America will need serious analytic preparation, not just “attitude.” These alternative American strategies should be carefully worked out in advance of any specific crisis. In all such calculations, chaos itself would need to be included as a potentially salient explanatory factor or “independent variable.” In short, pandemic-reinforced chaos would maintain its pride of place, however distasteful to America’s operating strategists and presidential policy-makers.

At that disintegrative point, there might remain no reasonable expectations of safety in arms, of rescues from higher legal authority or of any comforting reassurances from science. As with any true forms of chaos, new wars could rage until every flower of culture were trampled and until many things human were flattened in a vast and barbarous cauldron of biological disorder. In such dire circumstances, even the best-laid plans for collective defense or alliance guarantees could quickly become little more than iconic cultural artifacts of a world order that had once been “merely anarchic.” At that singularly portentous point, Carl von Clausewitz’s idea of “friction” (that is, “the effects of reality on ideas and intentions in war”) would trump all earlier hopes for both predictability and conflict resolution.

At that fearful point, the only fully predictable insight would be that nothing was any longer predictable.

Some further clarifications are still in order. Since the seventeenth century, our anarchic world can best be described as a system. What happens in any one part of this world necessarily affects what would happen in some or potentially all of the other parts. When a particular deterioration is marked, and begins to spread from one nation to another, the disintegrative effects would quickly undermine regional and/or international stability.

We are still living in a planetary system. But now, there are significant points of difference from classic “Westphalian” legal dynamics. Now, when deterioration is rapid and catastrophic, as it would be following the start of any unconventional war and/or act of unconventional terrorism, the corollary effects would be immediate and overwhelming. These critical effects would be chaotic.

Soon, aware that even an incremental collapse of remaining world legal structures would impact its friends as well as its enemies, leaders of the United States, in order to chart more patently durable paths to survival, will need to openly advance certain credible premonitions of global collapse. Such considerations will be uniformly distasteful, and are most likely not yet underway. Still, even without charting any compellingly precise Spenglerian theory of decline, American strategists ought not seek to avoid this obligation.

Determining proper strategic directions for the American future must require a prior awareness of where we seem to be heading – that is, a proper diagnosis and prognosis of world system “pathology.”

All things considered, American strategic planners will soon need to consider how best to respond to international life in a bewilderingly chaotic “state of nature.” The specific triggering mechanisms of any suddenly accelerated world system descent into chaos could originate from mass-casualty attacks launched against the United States or its allies, or from similar attacks directed against other western democracies.

In all cases, whether or not there had obtained a meaningful “pandemic variable,” even the dissembling state of nature would represent a discernible legal system. To figure out this system in suitably conceptual and theoretic terms in time would represent a preeminent responsibility of the American president.

Whatever any actual precipitant of chaotic disorder, deterrence ex ante, not revenge ex post, must remain America’s overriding security goal. If, for any reason, especially amid any expanding primal chaos, Washington should sometime lose sight of this objective, the United States could be reminded of that perpetually apt description of Nature explained in Thomas Hobbes’ Leviathan: “…every man is enemy to every man…no account of time, no arts, no letters, no society…continual fear and danger of violent death…”

As the lamentably “normal” context for national geo-strategic planning in Westphalian world law, anarchy has always been dangerously unstable.

Left unchallenged, however, an already-emergent chaos would be incalculably worse.

Accordingly, US President Donald Trump must prepare to look far beyond the daily news and conspicuous crises. Now, though plainly unaccustomed to any such longer term analytic assessments, his only proper course must be to solicit policy options from recognizably capable and disciplined scholars, not (per his usual pattern) from narrowly educated and shamelessly deferential political subordinates. If left to the arbitrary and disjointed leadership of Donald Trump, Cold War II amid COVID-19 could propel the United States from anarchy to chaos and from chaos to war and collapse.

None of this is mere hyperbole. “The worst,” says Swiss playwright Friedrich Durrenmatt, “does sometimes happen.” What then? More than likely, this above-delineated sequence of national descent would trigger a tale of woe and despair without any discernible historic antecedents. It would be such a tale, as described in Hamlet, “whose lightest word would harrow up thy soul.”

 

Louis René Beres (Ph.D. Princeton 1971) lectures and publishes widely on war, terrorism, human rights and nuclear security matters. Born in Zürich, Switzerland, at the end of World War II, and Chair of Project Daniel (Nuclear Strategy, Israel, 2003), he is the author of many books on international relations and international law, including Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago Press, 1980) and several of the earliest major works on nuclear strategy, including Security or Armageddon: Israel’s Nuclear Strategy (D.C. Heath/Lexington Books, 1986) and Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (D.C. Heath/Lexington books, 1983). Professor Beres’ twelfth and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy, was published by Rowman and Littlefield, in 2016. His recent articles have appeared at Israel Defense (Tel Aviv); Harvard National Security Journal (Harvard Law School); World Politics (Princeton); Yale Global Online; Israel Journal of Foreign Affairs; JURIST; International Journal of Intelligence and Counterintelligence; International Security (Harvard University); The Atlantic; The Hill; The New York Times; The Jerusalem Post; The Brown Journal of World Affairs; U.S. News & World Report; The Strategy Bridge; Modern Diplomacy; The War Room (Pentagon); Special Warfare (Pentagon); Modern War Institute (West Point); The Bulletin of the Atomic Scientists; and Parameters: Journal of the US Army War College (Pentagon). On strategic nuclear military matters, Dr. Beres’ frequent co-authors have included General (ret.) John T. Chain, former Commander-in-Chief, U.S. Strategic Air Command; Admiral (ret.) Leon “Bud” Edney, former NATO Supreme Allied Commander, Atlantic; and General (ret.), Barry R. McCaffrey, former U S Army SOUTHCOM commander.

 

Suggested citation: Louis René Beres, America’s Existential Challenge: Pandemic, War and Law, JURIST – Academic Commentary, May 20, 2020, https://www.jurist.org/commentary/2020/05/louis-beres-pandemic-war-law/


This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org


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