Philip Bobbitt's most recent book Terror and Consent is an interesting discussion of how we have to develop a new conception of the relationship between law and strategy that reflects our changing political environment. I am not convinced that everything needs to change but he does compellingly make the point that the activities we characterize as 'terrorism' are fundamentally different from the activities we called terrorism in the '70's and '80's. Al Qaeda is not the same type of organization as the Red Brigades or even the IRA.
Bobbitt's thesis is that there has been an evolution in the nature of the state from the nation state, aimed at protecting and providing for the welfare of citizens, to the market state, aimed at providing opportunities and choices for citizens. He argues that terrorism is now aimed at eliminating the state of consent that is fundamental to the market state.
Interestingly he also notes that this state of consent can also be eliminated by the inability or unwillingness of governments to address natural disasters or the predatory acts of other governments towards their citizens (Darfur). He advocates the establishment of a robust legal regime that establishes a principled basis to resist terrorism and to intervene in other countries when it is apparent they are preying upon their citizens.
One area that Bobbitt goes to far in is the evolution of war. He seems to be suggesting that terrorism is fundamentally altering the nature of war from state on state aggression to state on sub-state actor. I can agree that we need a legal regime that conceives of the state on sub-state relationship but I do not think that we can conflate that with state on state aggression.
State on state aggression remains a fact of life (Russia - Georgia, India - Pakistan for example) and any doctrine which envisages intervention against states acting against their citizens will only make it more so. The possibility of state on state aggression will also colour relationships with Iran and China over the next 20 years.
But Bobbitt does raise the interesting question: How does a state react to an organization like Al Qaeda which has 1) declared war on the West; 2) has its own sources of funding through commercial dealings and charitable contributions; 3) has its own body of law (Sharia law); 4) millions if not hundreds of millions of followers; and, 5) its own military?