Does International Humanitarian Law Confer Undue Legitimacy on Violence in War?
International humanitarian law (IHL) is extolled as a civilizing force that seeks to limit the effects of war for humanitarian reasons. Yet there is a burgeoning sense that IHL has facilitated rather than restrained military operations by conferring undue legitimacy on violence in war.
I explore what constitutes legitimacy in the context of battlefield conduct and the relationship between legitimacy and IHL in this article, published in International Law Studies. What follows is a summary of that discussion, with a focus on points of greatest concern to IHL practitioners and scholars.
What is Legitimacy?
The language of legitimacy is, as Ian Clark puts it, “dominant and recurrent.” Its meaning can nonetheless appear like an ignis fatuus that disappears further into the distance as one approaches it.
According to U.S. military doctrine, legitimacy is one of twelve principles of joint operations and “is based on the actual and perceived legality, morality, and rightness of the actions from the various perspectives of interested audiences.” This highlights the contrast between “empirical legitimacy” and “normative legitimacy.” Normative legitimacy denotes compliance with formulated standards or values (e.g., legal or ethical norms). Empirical legitimacy, in contrast, refers to de facto social acceptance (i.e., belief in the validity of an act).
Normative legitimacy is not an independent standard against which violence in war can be measured. There are several prospective normative systems that can be understood as providing the fabric of legitimacy. However, the sine qua non of normative legitimacy is best understood as compliance with both legal and ethical standards of behaviour.
Morality and Law in Conflict
Contemporary just war theory is the foremost construct in international society for dealing with ethical questions that emanate from the conduct of hostilities. There is a fundamental difference of opinion between traditional and revisionist just war theories on the nature of morality in war. There is agreement, however, that the condition of “good intention” is a cardinal requirement for ethical conduct. Thomas Nagel describes this condition in the following terms.
“[T]here is a morally relevant distinction between bringing about the death of an innocent person deliberately, either as an end in itself or as a means, and bringing it about as a side effect of something else one does deliberately. In the latter case, even if the outcome is foreseen, it is not murder . . .” (emphasis added).
IHL contains no requirement equivalent to the condition of good intention. All feasible precautions must be taken to minimize harm to civilians. Once such precautions in attack are exhausted, a strike on a military objective is lawful even if the primary intent is to incidentally kill civilians (provided the harm that may be expected is not excessive vis-à-vis the advantage anticipated). IHL merely demands that the inclination to realize such a goal cannot transform something into a lawful target that would not otherwise be, or distort the calculation of military advantage present in the rule of proportionality itself (see, e.g., here).
The preceding analysis illustrates how conduct perfectly permissible under IHL can be irreconcilable with ethical norms shared across divergent just war theories. It also demonstrates that, for acts of war to be truly legitimate, they must comply with the more restrictive standard provided by either law or ethics. Consequently, IHL cannot bestow normative legitimacy on military operations per se. There is nevertheless a growing sense that IHL can and does independently legitimize violence in war. This is due to the distinct relationship between IHL and empirical legitimacy.
IHL as a Legitimating Force
There is a dearth of scientific data on the extent to which compliance with IHL shapes views on the legitimacy of violence in war. Yet States implicitly acknowledge the power of IHL as a legitimating force by using that body of law as the “institutional vernacular” for endorsing military operations. For instance, in the context of the Kosovo campaign, NATO stressed that no conflict in modern history had seen more care taken to comply with IHL. Only four years later, the U.S. military described Operation Iraqi Freedom in similar tones.
The fact that militaries habitually point to IHL to validate their actions—and the marked absence of morality in such discussions—is demonstrative of how IHL is decisive in generating social acceptance of battlefield conduct. This state of affairs is of critical import as it explains how IHL can independently confer legitimacy on acts of violence even if this is not possible so far as normative legitimacy is concerned. With this in mind, the focus will now shift to whether the imprint of legitimacy that IHL bestows is undeserved.
IHL and Undue Legitimacy
The established narrative depicts IHL as a body of law conceived on the battlefield to abate human suffering. Concomitantly, it is thought axiomatic that IHL seeks to limit war’s effects for humanitarian reasons.
A rising chorus of voices regards this characterization of IHL as ahistorical. The most influential critique, however, remains that of Chris Jochnick and Roger Normand. Their appraisal is that States have been unwilling to accept any legal restrictions on the conduct of hostilities that extend beyond mere good military practice, despite humanitarian rhetoric to the contrary. For example, judged through this critical lens, the legal proscription on attacking civilians is a consequence of such acts being inefficacious as a matter of strategy. The fact that targeting civilians with bombs and bullets is manifestly immoral is extraneous.
I consider it misguided to see IHL as absent rules that extend beyond what sound operational art dictates in any event. The detailed definition of indiscriminate attacks in Article 51(4) of Additional Protocol I to the Geneva Conventions illustrates why that is the case. Article 51(4) went far beyond traditional practice at the time it was concluded and has since developed into binding customary international law applicable in both international and non-international armed conflicts. This rule of IHL has thus served to shape violence in war rather than imitate existing tactics, techniques, and procedures.
A more nuanced approach is to accept that IHL does provide genuine restrictions on States but to emphasize that many of those restrictions are rooted in how armed forces operate. There is a longstanding strand of scholarship that understands the foremost determinant of IHL rules as good military practice and thus, by extension, in the interests of States. The history of the Geneva Conventions of 1949 is illuminating in this context. It was States who dictated the terms of those four treaties and their motivation for doing so was, as detailed elsewhere, an amalgam of self-interest, concern for legitimacy, and morality.
Inquiry into the development of IHL demonstrates that humanitarian considerations have generally taken second place to military exigencies (see, e.g., here). A clear-eyed assessment of the Martens clause—first found in the Preamble to the 1899 Hague Convention (II) on the Laws and Customs of War on Land—attests to this fact. This clause is celebrated as the epitome of the humanizing quality of IHL. However, rather than representing a human impulse to reduce suffering, the Martens clause was designed to end a dispute between great powers and smaller nations. For this reason, among others, it has been described as an “enactment of irony.”
Overstating the role of humanitarianism in the laws of war is ahistorical but also potentially damaging. IHL is formed by weighing military interests and compassionate concerns. Since these two factors often point in different directions, overemphasizing either pole distorts the “delicate balance” ingrained in specific rules of IHL and is thus inevitably detached from the practice of law by States. Such distortion matters because, above all else, the strongest argument used to convince militaries to respect IHL is that they can achieve victory while respecting its strictures.
Overemphasizing the beneficence of IHL also presents a paradox. This is because, despite the best of intentions, insistence on the primacy of humanitarian concerns in IHL aids social acceptance of battlefield conduct that “humanitarians” typically deem deficient. The “stamp of legality” IHL bestows on such conduct fuels empirical legitimacy for violence in war.
Whether the law of armed conflict confers undue legitimacy, ultimately, requires us to judge the content and consequences of IHL against an alternative point of reference. Inexorably, it is our understanding of the morality of war that informs this judgment. As such, for reasons detailed in my article, I judge that the rules of IHL will be most susceptible to accusations of undue legitimacy where they fail to take account of the “moral reality of war.”
Concluding Thoughts
A true axiom of IHL is that its precepts must allow a diligent and reasonable military commander to act lawfully and still effectively pursue military victory. IHL may well fulfil the function of providing legal authority for and thereby legitimating violence (see, e.g., here). Even so, in the long run, the capacity of IHL to ameliorate suffering in war is surely best served by a pragmatic corpus of rules designed to pull States toward compliance. The capacity of international law to achieve that aim is perhaps the foremost prism through which to assess the relationship between legitimacy and IHL.
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Wing Commander Kieran R.J. Tinkler is a Legal Officer with the United Kingdom Royal Air Force. He currently acts as legal advisor to NATO Allied Air Command. The views expressed are those of the author alone and not those of the Royal Air Force, the UK Ministry of Defence, or the UK Government.
Photo credit: Staff Sgt. Justin Parsons