Who Speaks for Humanity?

In a previous post on Articles of War, I argued that it was wrong to assess rules for the conduct of war without giving some consideration to the type of war involved, even if that meant blurring the distinction between jus ad bellum and jus in bello. But some analysts (as I’ve seen from responses, e.g., here and here) are deeply entrenched on the boundary they see as defending jus in bello from incursions of jus ad bellum.

Rather than returning to the trenches in that battle, I propose we think about the dispute on a different level. We can reach the same general conclusion, even if we stay within the bounds of jus in bello, namely, that rules must accommodate the challenge of differing battle contexts. The point is intuitive, perhaps inescapable for legal advisors coping with ongoing conflicts. It is repeatedly acknowledged in the U.S. Department of Defense (DoD) Law of War Manual. Yet it does not seem at all clear to many commentators at nongovernmental organizations (NGOs) or in some foreign ministries, who often talk about “requirements of international law” as if they were clear and indisputable in their application to permissible battle tactics. It is worth taking a few steps back to identify the moral basis of such overconfident pronouncements.

Background

The doctrine that jus ad bellum and jus in bello must always be sharply distinguished was (along with the terms themselves) launched by legal scholars in inter-war Vienna. Legal scholarship in Central Europe in that era was much committed to legal positivism, insisting that “law” could only be made precise and reliable if removed from interminable arguments about “morality.” Thus, as advocates still see it, a body of jus in bello law will be much clearer and more precise if not distracted by considerations of which side has better reasons to be fighting.

The International Committee of the Red Cross (ICRC) remains strongly committed to this view. In its 1987 Commentary on Additional Protocol I (AP I), it squarely rejects the view that allowances should be made for a State “which has to counter aggression.” The ICRC observes, “it is well known how difficult it is in armed conflict to determine objectively who is the aggressor” (para. 1949). On the other side, the same commentary insists that the rule against “excessive” harm to civilians or civilian property must apply in all cases, even if a commander believes “the military advantage at stake is of great importance.” This sort of balancing is “contrary to the fundamental rules of the Protocol. . . . The Protocol does not provide any justification for attacks which cause extreme civilian losses and damages. Incidental damages should never be extensive” (para. 1980, emphasis added).

It may seem odd to find such complacent moral relativism regarding jus ad bellum coupled with dogmatic legal formalism in relation to jus in bello. But they both seem to reflect the shared assumption that we have no way of knowing what is just or reasonable, except for what is formulated in precise rules. We do not have an elaborate codification of rules regarding resort to force (even the Kampala Amendment to the International Criminal Court (ICC) Statute, entering into force only in 2018, is hedged with qualifications on its application and not yet fully applied by any court). The elaborate specification of jus in bello requirements, especially since the very detailed provisions of AP I, is therefore what must be embraced as “the law.”

This was not the traditional view. The 1907 Hague Convention on the Law of War, for notable example, confided in its Preamble that in cases not covered by its rules, the [civilian] “inhabitants” of occupied territories and the [combatant] belligerents themselves would “remain under the protection” of “principles of the law of nations, as they result from the usages established among civilized peoples, from the law of humanity, and the dictates of public conscience.” To be sure, these standards are vague; but clearly, the signatories thought they were worth recalling as background that could inform and supplement more precise standards.

Distorted Outlooks

In the real world, this is still relevant. The law of armed conflict—even when it comes to jus in bello standards—needs to be informed and supplemented by background moral reasoning.

Professor Agnieszka Jachec-Neale points out in her 2015 treatise, Concept of Military Objectives in International Law, that Allied attacks on Nazi death camps in the Second World War (to disrupt their operations or to hinder transport links to them) might be contrary to the rule that attacks must only be targeted on “military objectives.” The same objection might be made (as she notes) to attacks on broadcasting facilities in Rwanda in 1994, when they were used to incite Hutu civilians to murder their Tutsi neighbors.

If we say halting genocide is a legitimate war aim, we seem to be mixing jus ad bellum with jus in bello reasoning. If we say infrastructure of mass murder is, in itself, a legitimate “military objective,” because attacks on such infrastructure would limit the enemy’s capacity to pursue its own war aims, we are stretching this term to the point where it is no longer a reliable boundary. Perhaps humanitarian concern would be better served by giving up on formalistic parsing of rules in such extreme situations.

The underlying problem is that AP I requires even incidental harm to “civilians” to be justified by “the concrete and direct military advantage anticipated” from an attack. This makes sense in many situations, as when targeting a handful of low-level combatants in a single vehicle would risk injury to dozens of surrounding civilians. What if the target is a single military commander of particular importance? That was the case, for example, with the 2020 U.S. drone strike on Iranian terror chief Qasem Soleimani while on a visit to Iraq. At least four Iraqis were also killed, though not themselves clearly involved in Iranian terror attacks. The victims also included five other Iranians, not all of whom were Iranian military operatives. The UN Special Rapporteur on Extra-Judicial Executions called the attack a violation of international law. In its own official statements, the U.S. government stressed that the attack was not only necessary to “disrupt” an “imminent attack” on U.S. personnel in the region, but also to “deter” future attacks.

The phrase “concrete and direct military advantage” is usually understood as a result that obstructs the warfighting capacity of the opposing side, as in preventing quick crossing of a river barrier. In most situations, an attack on a particular commander, even a gifted and highly trusted individual, does not affect warfighting capacity in a “concrete and direct” way, but at best in a speculative and indirect way. What made the strike on Soleimani seem worthwhile—given it provoked angry responses from Iraqis, Iranians, and UN officials—was that it served to emphasize the United States’ resolve against Iranian threats. If it worked to “deter” further Iranian attacks, which might have generated wider conflict, it may well have served a humanitarian end. But it is still hard to place it in the conceptual cubby-hole of a “concrete and direct military advantage.”

A similar point applies more broadly to actual combat operations. If attacks can “never” result in “extensive harm” to civilians or civilian objects, defenders have every incentive to hide among civilians. That is likely to prolong the conflict, which may prolong suffering from disruption of food and medical supplies to civilians, along with the gradual, but relentless accumulation of “incidental” harm from an endless succession of attacks causing only limited civilian injury, viewing each episode separately.

The prolonged fighting in Gaza over the past year illustrates the problem in our day. But the challenge has long been recognized. The Civil War Lieber Code admonished, for example, “The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief” (art. 29). Perhaps this does not justify the most extreme “shock and awe” tactics to force a speedy result. But it at least raises a reasonable question whether overly constraining limits on combat methods will always be the more humane approach.

What sharpens all these questions is that we are very far from having well-settled agreement on a positive law of armed conflict, even in regard to jus in bello. The ICRC’s Commentary on AP I acknowledges (in passing) that many participants in the drafting conferences raised concern that the wording of targeting provisions was “ambiguous.” But even when the wording of AP I provisions seems more definite, there is often still some uncertainty about their application. AP I is not, by itself, binding on non-parties, such as the United States and Israel. It is a wild stretch to claim that binding customary law now tracks all the provisions in AP I as understood by the ICRC. The same can be said of rulings by the ICC in relation to non-parties.

To take one relevant set of contrasts, compare where the ICRC Commentary warns that incidental harm to civilians must “never be extensive” with the DoD Law of War Manual, which says, “whether the expected incidental harm is excessive may be a highly open-ended legal inquiry” in which various contextual considerations may figure (§ 5.12.3). The ICRC Commentary insists the obligations of an attacker remain the same, “even if civilians were intentionally brought or kept in the vicinity of military objectives . . .” (para. 1990). The Law of War Manual cautions, “The party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury,” absolving attacking commanders of said responsibility as long as they treat involuntary human shields as civilians in their proportionality analysis and take feasible precautions to reduce the risk of harm to them.

When there are such differences, would it actually serve the cause of humanity to entrust their resolution to sideline umpires like the ICRC? During the worst humanitarian catastrophe in European history—the Nazi mass murder programs that launched the term “genocide”—the ICRC remained entirely silent, though often urged to lend its voice to warnings against the perpetrators. At the time, ICRC officials explained that they had no legal responsibility for mass crimes against civilians, as such crimes were not yet covered by any Geneva Conventions. Historians later discovered that ICRC officials had, in fact, considered such a statement but only if they could balance it with a simultaneous denunciation against Allied bombing of German cities. The ICRC was devoted to the legal standards—but even more to its posture of neutrality.

So it has proven with the ICC as well. When Prosecutor Karim Khan called for arrest warrants against Hamas leaders on May 20, he combined this call—in the same statement—with a request for the arrest of top Israeli leaders. President Joe Biden called the implication of an equivalence between Hamas and Israeli leaders “outrageous.” Khan denied he had implied that, but he could have announced his claims about Hamas and Israeli “war crimes” on different days. The charges against Hamas could have been leveled at the very outset of the conflict, months earlier.

If he was misunderstood, Khan invited that misunderstanding, presumably to make his office seem even-handed. And he could not find his way to charge Hamas with the crime of “[u]tilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” under the Rome Statute (art. 8(2)(b)(xxiii)), likely because this charge would have diminished the charge against Israeli leaders for allowing attacks on civilian centers.

Concluding Thoughts

The least one can say is that advocates for humanitarian protection have their own institutional interests and face their own temptations to serve these interests. Perhaps it goes deeper, though. Perhaps there is something inherently distorting in their outlook.

William Blackstone, in an introductory chapter of his Commentaries, discussing the challenge of legal interpretation, acknowledges the need for what he calls “equity,” which he illustrates with the admonition of Grotius: the law does not determine precisely, but leaves something to the judgment of the good man (“lex nonexacte definit, sed arbitrio boni viri permittit”). To say the law of armed conflict is best interpreted by specialists like the ICRC or the ICC is to say it is best left not to the good, but to those who position themselves equidistantly from Western democracies and brutal tyrannies (or even a terrorist death cult).

These would-be umpires proudly profess disinterest not only to who wins in war, whether the largely humane or the relentlessly barbarous. They embrace a dogmatic legalism, which excuses them from hard grappling with ground-level results, even when it comes to rules about warfighting. Law does not exist in such vacuity; rather, it is axiomatic that the rules of warfare—international humanitarian law—be interpreted to secure humanitarian ends.

The good countries have good reason not to leave organizations like the ICRC and the ICC with the last word on what the law of armed conflict allows, even when it comes to jus in bello standards. It would serve the cause of humanity for military law specialists to explain this more clearly and emphatically than they have in public forums.

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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 Reserve, Spc. Andrew Mendoza