“Humanity” is Not Always the Highest Claim
Disputes about the application of the law of armed conflict are often fought with tools of legal analysis: competing treaty provisions; court rulings; and historical precedents. I want to highlight here a deeper dispute regarding the overall perspective.
The International Committee of the Red Cross (ICRC) has, for decades, campaigned to extend the term “humanitarian” to all limits on the conduct of war, displacing the older term law of war (or the more recent law of armed conflict) with “international humanitarian law” (IHL). The claims of humanity might seem, almost by definition, more encompassing, hence of higher status than the claims of particular nations. Humanitarian law also seems closely related to human rights law, leading advocacy organizations originally focused on human rights law, like Amnesty International and Human Rights Watch, to treat IHL as a natural extension of human rights law and apply the latter to combat zones.
If the international community could reliably uphold international human rights standards everywhere and at all times, it might not matter so much where borders were drawn and which government ended up with taxing and regulatory authority for other matters. On this view, it might seem morally obligatory to insist that belligerents heed all requirements of IHL in all conflicts and to give them the most extensive reach they might plausibly claim, all for the higher cause of humanity. This view, however, assumes a transformation of our world which is still unfulfilled and no longer seems at all imminent.
A Historical Perspective
Prior to the Additional Protocols I and II of 1977, “humanitarian law” encompassed treaties regarding the treatment of injured combatants, prisoners of war, and civilians in occupied territories (i.e., those not participating in battle or capable of affecting the outcome). States sometimes called it “Geneva law,” in acknowledgment of drafting conferences hosted by the ICRC there. The Hague Conventions of 1899 and 1907, which did try to codify standards for the conduct of ongoing military operations, began with this qualification in their preambles: these rules were “inspired by the desire to diminish the evils of war, as far as military requirements permit … .” In other words, the aim was to secure only as much humanitarian protection as was consistent with the priority accorded to “military requirements.”
Earlier generations took this formula as expressing the common sense of the matter. If “humanitarian” restraint is identified with limiting immediate human suffering, any war will seem contrary to the dictates of humanity. War of almost any kind is bound to “require” the infliction of suffering on enemy combatants and at least some degree of harm on surrounding civilians. But the traditional view held that even in a just war, much suffering may prove a price worth paying to achieve the war’s aims. As is the case in other contexts, immediate effects are not the only consideration. Physicians, for example, routinely amputate limbs to preserve the rest of the body from fatal infection. Parents or teachers punish children—with resultant tears or resentments—to save them from falling into sloth or delinquency.
Concerns with a Purely Humanitarian View
It is tempting to balance these considerations with a formula that resolves the tension by allowing “only so much suffering as necessary.” But this is more an expression of hope than a feasible metric. Some commentators are optimistic about the potential of higher analytics in resolving such questions. It is instructive to think about why this is so unlikely to secure general agreement.
My friend (and sometime co-author) John Yoo has proposed that resort to force should be judged by whether the likely outcomes—that is, weighing strategic benefits against humanitarian costs—would offer a net contribution to “Global Welfare.” He offered the argument in relation to initiating hostilities, or what committed binarists in this area might consider the different legal terrain of jus ad bellum. But the difficulties are similar in regard to action within an ongoing campaign (jus in bello).
If we applied this approach to ordinary life, we might say someone threatened by criminal assault should respond in a way that reflects competing humanitarian claims. A young person, for example, might be entitled to use lethal force even to defend against an attack from an old person. Then again, perhaps we should say—to keep all the competing humanitarian claims in balance—that an old person should not use lethal force against several younger attackers, even when confronted with lethal force, since the old person has only a decade or two of life to protect while the assailants, especially taken together, may have many, many decades of life at stake.
But of course, this is not the view of the common law. We allow the victim of a lethal threat to use lethal force when judged necessary for self-defense, without regard to whether the assailant or the victim has more to lose. In most States, we allow lethal force against an attacker who has broken into a private home, presuming that this is enough to indicate a potentially lethal threat. If there is any question about whether force by the defender was excessive, a jury can settle it, because general rules cannot readily answer such a question.
In international affairs, giving priority to humanitarian restraint might imply that a small State should never defend itself against a larger aggressor, because the small State would not likely prevail and ensuing causalities from a failed defense effort would simply net out as a loss for “humanity” (honor and inspiration to future generations being harder to calculate than current body count if the former be counted at all in “net welfare”).
And then it would be wrong to wage war against an enemy profligately sacrificing its own troops or hiding behind its own civilians, since war in this setting would be certain to trigger massive casualties. The side with more regard for humanity might feel obligated to always give way to more brutal enemies.
But of course, this is not international law any more than it is criminal law. The UN Charter recognizes an “inherent right to self-defense” without any qualification or reservation against self-defense efforts that might seem unlikely to prevail or those very likely to exact a high toll in terms of human suffering.
Even after the Second World War (perhaps especially so, after so much sacrifice), most analysts still assumed a fundamental right of sovereign States to defend themselves. They would have seen this right as—in the words of the American Declaration of Independence—“unalienable;” for a threatened people, “it is their right, it is their duty” to defend themselves. The doctrine of jus cogens (obligations so fundamental that they cannot be waived by treaty) is now typically invoked in relation to human rights norms. But originally, an Austrian professor launched the term in 1937 while arguing in the American Journal of International Law that a treaty preventing a State from retaining the capacity to defend itself would violate the most fundamental moral premises of international law. “It is immoral,” he wrote, “to keep a state as a sovereign community and to forbid it at the same time to defend its existence” (Verdross, p. 575).
Concluding Thoughts
A global authority that could decide what States can do to defend their populations is claiming the all-encompassing knowledge that we deny to our own governments in criminal matters. Some choices must be left to individual States or individual commanders as to individual (would-be) victims. The right of self-defense is not a permission slip from higher authority but an acknowledgment that higher authority cannot be omniscient and cannot be licensed to barter away some lives as not worth the cost of defending. The right of self-defense is the law’s way (in criminal law as in international law) of allowing victims (or would-be victims) a say in the value of their lives.
One can think of this as a competing concern; that is, “humanitarian” as against “military” or “security” concerns. But we might do better to acknowledge that reducing overall suffering is not the only concern of actual humanity, as demonstrated by what actual human beings do and say. Humanity does not express itself only through self-described humanitarian organizations.
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Jeremy A. Rabkin is a retired Professor of Law. He previously taught at the Antonin Scalia Law School at George Mason University.
Photo credit: U.S. Army
