18 May “Necessity Knows No Law”
Lately I have been doing extensive historical research on the development of international law and I came across this remarkable quote from the 1921 edition of Lassa Oppenheim’s International Law:
“A constant increase of population must in the end force upon a State the necessity of acquiring more territory, and if it cannot be acquired by peaceable means, acquisition by conquest alone remains…. [T]he awaking of national ambition, the craving for rich colonies, the desire of a land-locked State for a sea-coast, the endeavor … to become a world-Power … have been at work … in creating causes of war…. Necessity for a war implies its justification, whatever may be the cause.”
It was this mindset that led Germany to launch the First World War. When Germany violated Belgian territory on August 4, 1914 the German Chancellor’s justification was that “We are in need and necessity knows no law.”
Necessity knows no law. It’s an absolutely amazing assertion. When one examines the history of international law, one cannot help but marvel at the progress we have made in a few generations. Our grandparents lived in an age when territorial conquest and colonialism were common place. The idea of the peaceful settlement of disputes was only beginning to gain traction. A century ago major powers bombarded the ports of struggling nations to secure the repayment of public debt. Their dream was that perhaps one day, in the distant future, international society would organize itself in a way that provided for collective security and defense. They were struggling with how to regulate the potential military abuses of that great new technology: the air balloon. Human rights law, international criminal law, and international economic law were all in the future. In 1899, British Admiral Fisher scoffed at the idea that you could humanize war. “The humanizing of war! … You might as well talk of humanizing Hell! … The essence of war is violence. Moderation in war is imbecility. Hit first, hit hard, and hit anywhere.”
We have our struggles today. But anyone who is a student of international law cannot help but conclude that we have come a long way.
This post reminded me of reading Victoria a month or two ago, and coming across something to the effect that if you’re struck by someone, you can strike them back, even if the attacker clearly shows that they intend not to continue the assault, because you have to be able to avoid disgrace and hitting the attacker is the only way to do that.
In a recent Volokh thread I raised the question whether art. 2 of CAT’s elimination of the necessity defense might be unlawful as being against natural law. (I think I quoted Coke in Dr. Bonham’s case, where he said that even Acts of Parliament should be ignored by the courts if they were “against common right and reason, or repugnant, or impossible to be performed”.)
After all, the idea of the necessity defense is that the defendant could not have done otherwise, in the same way that someone who is thrown out of a window and lands on another cannot be prosecuted for assault. So in that sense, I would tend to agree that a sufficiently narrow version of necessity “knows no law”.
I would love to see someone make the argument, with a straight face, that not torturing a prisoner is “against common right and reason, or repugnant, or impossible to be performed.”
[…] El Profesor Roger Alford tiene una entrada relacionada, en cierto sentido, con este tema. Sus comentarios resultan bastante ilustrativos: When […]
@dmv: That’s why I wrote “suitably narrow”. The actual torture carried out under the Bush administration would almost certainly not qualify for the necessity defense anyway, however defined. However, a “24”-type ticking (nuclear) time bomb is a different story. However much I am against torture, in such a setup the only reasonable question is whether the defendant had sufficient reason to believe that torture would work in the circumstances.
David Luban’s discussion of the “ticking time bomb” scenario (“Liberalism, Torture, and the Ticking Bomb,” Virginia Law Review, Vol. 91, No. 6. [Oct., 2005], pp. 1425-1461) is a clear-headed, careful analysis of the hypothetical. “ticking-bomb stories” he claims “are built on a set of assumptions that amount to intellectual fraud. Ticking-bomb stories depict torture as an emergency exception, but use intuitions based on the exceptional case to justify institutionalized practices and procedures of torture. In short, the ticking bomb begins by denying that torture belongs to liberal culture, and ends by constructing a torture culture.”
David,
Thanks for mentioning Luban’s argument in reply to Martin. It’s rather disconcerting how many otherwise intelligent folks are simply unaware of the numerous arguments (some of them even utilitarian) against this highly implausible and fantastic scenario. His is one of the most recent and articulate (and now there are a couple of book-length treatments: by Brecher and Ginbar). I’ve noted some others in my selected bibliography for torture at the Ratio Juris blog: Torture: Moral, Legal & Political Dimensions–A Select Bibliography (or requisite reading)
I was remiss in not posting Secretary of State Elihu Root’s response to Germany’s necessity argument. Here is what Root said in his 1921 ASIL annual address to the “necessity knows no law” crowd: “The doctrine [of military necessity] is that, if a belligerent deems it necessary for the success of its military operations to violate a rule of international law, the violation is permissible. As the belligerent is to be the sole judge of the necessity, the doctrine really is that a belligerent may violate the law or repudiate it or ignore it whenever that is deemed to be for its military advantage. The alleged necessity in the case of the German invasion of Belgium was simply that Belgium was deemed to be the most advantageous avenue through which to attack France. Of course, if that doctrine is to be maintained, there is no more international law, for the doctrine cannot be confined to the laws specifically relating to war on land and sea. With a nation at liberty to declare war, there are few rules of peaceful intercourse, the violation of which may not be alleged to have some possible bearing upon a military advantage; and a law… Read more »
Ticking-bomb stories depict torture as an emergency exception, but use intuitions based on the exceptional case to justify institutionalized practices and procedures of torture. In short, the ticking bomb begins by denying that torture belongs to liberal culture, and ends by constructing a torture culture.”
For the record, I did not mean to defend any aspect of the Bush administration’s torture programme, if for no other reason than that it was not a true case of necessity. My reference to a ticking time bomb was, in true legal tradition, a hypothetical intended to illustrate my point.
(My personal favourite regarding necessity/force majeure is Cicero’s story about two shipwrecked sailors clinging to a piece of wood that only has enough buoyancy to save one of them. In that case, too, I don’t think any law could validly punish the one that shoves the other off.)
“When one examines the history of international law, one cannot help but marvel at the progress we have made in a few generations.”
The really important norms were already codified at the time. It’s just that the German interpretation of international customary law before and during the First World War veered far outside of the mainstream. We’ve simply forgotten the history.