Osiel on “Rethinking the Law of War Crimes”

The following is a guest-post — actually a short book-proposal — by my friend Mark Osiel, the Aliber Family Chair in Law at the University of Iowa.  I have agreed to post it despite the inordinate jealousy I feel toward his remarkable productivity.  Mark would greatly appreciate comments and criticisms, especially examples and counter-examples of what he is trying to get at.

Rethinking the Law of War Crimes: “Collateral Damage”and “Distinction”

Current law on war crimes is deeply disappointing to most people – public and legal professional — who pay it any attention, notwithstanding many prosecutions for mass atrocity by new international courts in recent years. Observers on both the Right and Left agree that the law’s expectations in this area depart radically from those of morality, that is, from any defensible conception of what a truly “just war” would look like, how it would be fought. Most concur that the relevant rules are far too generous to fighters at some points, too demanding of them at others; too weak in protecting innocent civilians, too indulgent of violence by other civilians. Wide agreement also exists that obvious aggressors would, in a genuinely just law of war, enjoy less legal protection than their aggrieved victims. The law will have nothing of this.

Those on the Left, especially, insist that a just law of war crimes would preclude the cynical invocation of “collateral damage” to excuse the eminently foreseeable killing of many innocents that has occurred in several recent confrontations. Many on the Right, particularly, proceed to denounce the habitual exploitation of civilian status and its protections by those organizing large-scale terror attacks on population centers while deploying their own civilians to “shield” military installations from counter-attack. Both ends of the political spectrum, as well as many people in between, concur that the disjuncture between law and justice has grown so great that longstanding international rules of war no longer merit respect or adherence. It is no exaggeration to describe the current situation as something of a crisis, one that – given its moral magnitude — should concern any conscientious citizen of the world.

How did the respective demands of law and morality in war apparently come to deviate so profoundly? Might anything be done to realign them?

The conventional account of law’s failings accusingly points to the world’s military powers who, immersed in the anarchy of global politics, find it necessary to make hard-hearted calculations of national self-interest in ways that severely limit the moral ambit and aspirations of international law. Some find this situation acceptable; most consider it deplorable. They nonetheless agree on the causal story and its implications for likely legal progress.

There is a different type of obstacle, however, no less weighty if rarely noticed. Attending to it may even help us reassess the apparent constraints of realpolitik itself, by identifying weaknesses in the law better attributable to other factors. The central problem is that, despite millennia of human experience with war and significant advances in its genuinely scientific aspects, those who professionally make (and study) it have few clear answers to several of its perennial puzzles and little ability accurately to predict its ever-shifting contours. In light of these cognitive shortfalls, as we may call them, it should come as little surprise that we have learned so little about how best to govern war, and in particular, about where exactly to draw the line – amidst the ubiquitous violence that is intrinsic to war — between its lawful and criminal features. We must rethink important features of war crimes law from this more skeptical, Socratic vantage point.

The most insistent questions therefore become, at the level of particular legal doctrines: What does the law of war crimes assume about how much of what kind of information, technical and ethical, fighters at all levels know or can be expected to acquire? When, and on what empirical basis, are these assumptions warranted? Finally, can law’s frequent departures from the apparent requirements of justice – as seen through the abstract lens of ideal-theory — be better ascribed to cognitive shortfalls than to constraints of realpolitik? These questions lead us to pose a host of still more specific queries, virtually never raised by legal scholars of war crime.

Consider quickly a few of these. The law requires commanders to employ no more force than “necessary” to achieve a given military aim. But how much do they really know about the measure of force required to achieve a given tactical goal before undertaking it? Might the limits of their understanding here explain the relative lenience of courts when judging them?

The law further demands that “incidental” harm to civilian life and property not become excessive “in relation to the concrete and direct overall military advantage anticipated.” On what kinds of learning do soldiers rely when weighing the competing values in balance here? To say that these values – innocent life versus military success — are incommensurable (as philosophers often do) is simply a more technical way of saying that we know of no acceptable means for measuring them along a single scale?

For that matter, when commanders try to anticipate likely military advantage from a tactical exercise of force, what must they know about how their contemplated action contributes to larger operational and strategic goals? If the law expects very much here, it almost immediately exceeds the limits of what soldiers know. If it demands very little, requiring awareness only of immediate effects, then it ignores how an exercise of force “disproportionate” at the tactical level can sometimes greatly advance the prospects of operational and even strategic victory. This is illustrated as in the sinking of the Belgrano by Britain during the Falklands/Malvinas War. The ship posed no tactical threat at the time and place, but its destruction contributed greatly to Argentina’s decision to abandon the Islands.

Conversely, a tactically “proportionate” use of force sometimes turns out to have highly prejudicial consequences for strategic goals, as when vivid images of a small number of innocent civilian deaths from a successful drone strike on a major terrorist are broadcast across the globe on Al Jazeera. If international legitimacy for nation-building efforts is the central strategic aim, then legal assessments of proportionality in the use of force become inseparable from the public’s moral assessment of whether excessive harm has been caused, however unintentionally, as Dale Stephens observes. Because public opinion blows ephemerally in the wind, no workable legal test of proportionality – and surely none of international criminal law – could be built on this basis. In sum, what is proportionate at one level of military decision-making is often disproportional at another, in ways that elude the law’s convincing conceptual grasp. This contributes to the danger of criminalizing what are simply reasonable disagreements – professional and more political — over the necessary measure of force in a given circumstance.

Once thinking in this epistemic sort of way, we find other such puzzles immediately suggesting themselves. “Effects-based” targeting has become popular among U.S. Air Force strategists, though it entails intentional targeting of civilians, i.e., civilian leaders – in both government and business – upon whose support the criminal policies of a repressive state, such as Serbia’s toward Kosovo in 1999, critically depend. From a moral point of view, effecting policy change in this way would clearly be preferable to targeting thousands of reluctant Serbian conscripts. The advocates of effects-based targeting are right in thinking that we often have information permitting more fine-grained distinctions of threat and culpability for aggression and war crime than those entailed in a bright-line distinction of status between combatant and civilian.

But actual experience with effects-based targeting is discouraging about our capacity to predict the true consequences, intended and unintended, of such civilian targeting. If our powers of social analysis were more advanced, if they strongly suggested which civilian elites to target in order to produce what changes of criminal policy, we would all surely support the legal revisions necessary to permit this. Despite the bluster of its defenders, however, we simply lack the learning to render this theory workable.

Another illustration: When the strategic decision-makers of Western powers contemplate assassinating a leading terrorist, to what extent do they think, know, and worry about how this may implicitly advance such a practice as an incipient customary right and thereby expose their own successors and allies to greater risk of similar attack in turn? If they were certain of their de facto power to prevent such rejoinder, they would have little hesitation about advancing such a de jure norm, in the knowledge it would not come back to haunt them in practice. They do not do so. How much does their inescapable ignorance of such long-range repercussions restrain them from officially acknowledging the fact of these attacks and defending their legality (as some at Opinio Juris urge they should), attacks greatly increased under the Obama administration?

Finally, many non-lawyers today demand that jus in bello restrictions on acceptable means of fighting no longer remain entirely indifferent to jus ad bellum rules on resort to force. Such people – both ordinary citizens and moral thinkers – increasingly believe that a lesser measure of incidental civilian loss is appropriate when grave doubts arise about the underlying cause such force claims to advance. In other words, when evaluating a particular lethal action in war, most people refuse to isolate this question from their broader assessment of the actor’s initial resort to, and continuing employment of force in the first instance. They simply repudiate the law’s historic insistence on such a separation — and hence too reject the idea that proportionality must have distinct meaning in these disparate contexts, as the law continues to insist.

Yet to what extent can soldiers beneath the highest echelons can be expected to recognize whether the war aims for which they fight are just, or consistent with the United Nations Charter? What does the evidence suggest about their propensity to reach conclusions on such matters independently of their superiors’ explanations and exhortations? When reasonable people throughout the world disagree profoundly over the justice of given war aims, it is a perilous for international law to enshrine some contested answer to the question, making it the basis of criminal liability.

There is some recognition of this problem in how the U.N. Charter severely curtails the broader, theological rationales for just resort to force, focusing almost exclusively on national self-defense against armed attack, with the latter term defined quite narrowly. There is further such recognition in the recent efforts to define the crime of “aggression” so that only top policymakers may be held liable for it. They are in the best position to know both the pertinent strategic facts and their own, true rationales for a policy of war.

My working hypothesis is that such inquiries will suggest that the central obstacle to a better law of war crimes lies less in the tough imperatives of geopolitics, as “realists” are wont to insist, than in these cognitive considerations, more subtle and conceptually elusive. For lack of a better word (and at some risk of portentousness), we might call these considerations “epistemic.” To suggest that this is where we should direct our inquiries, however, is not to imply that such challenges necessarily prove any more tractable than the better-known and more brutal ones of realpolitik.

The upshot of such an analysis will be to refute criticism of war crimes law from the Right, to the effect that such is too demanding (with respect to distinction) and critique from the Left (with regard to proportionality) that it is not demanding enough. In other words, the law of war crimes can do more good work than the Right generally allows, but less than the Left invariably demands. The legal status quo in this area, however disappointing from the perspective of any ideal theory of justice, is pretty much the best we can expect for a long time.

All suggestions welcome on how to develop (and qualify) this argument!