YJIL Online Symposium: Response to Gabriella Blum
[Matthew Waxman is an Associate Professor of Law at Columbia University Law School.] I am delighted to comment on Professor Blum’s provocative and thoughtful Article. The Article highlights in new ways a fundamental tension within international humanitarian law (IHL): that this body of law that disallows “lesser-evil” analysis in many contexts is itself a giant exercise of lesser-evil judgment, that the risks of prolonging and legitimizing warfare are worth the cost of protecting some humanitarian interests during it. Professor Blum injects new thinking to some long-running dilemmas at a time when much IHL discussion is overly politicized or stagnant.
One of the most remarkable aspects of Blum’s Article is its entire form, with her argument cast in terms of international criminal law: that international criminal law has exacerbated old IHL dilemmas, that international criminal prosecutions may in some cases be counter-protective of humanitarian interests, and that a solution lies in crafting a criminal defense that could be asserted by a war crimes defendant.
As a descriptive matter, that Blum crafts her argument in terms of international criminal law shows the degree to which in many circles, including academic ones, international criminal processes have become key loci of debate about IHL. Were this article written just a decade ago, I wonder whether the author would have framed the issue in terms of criminal liability/criminal defense – I doubt it. Blum acknowledges this, as when she writes that the birth of the International Criminal Court and expansion of national-level war crimes prosecutions have raised the stakes for military decision-makers. But I would go even further and say that the vast bulk of IHL “enforcement” still occurs on a much more regular basis not through criminal liability but through training, military doctrine, operational planning, and the involvement of military lawyers in strategic and tactical decision-making, as well as the work of International Committee of the Red Cross, non-governmental organizations, and other mechanisms.
As a normative matter, I wonder whether it might be better to frame her proposed legal reform as a matter of the underlying substance of IHL doctrine (e.g. as a way of interpreting proportionality requirements or understanding targeting discrimination obligations) rather than as a criminal defense to war crimes charges: better as measured by its own object of exempting from liability some measures that would cause less humanitarian harm, and better more generally in terms of evolution of IHL’s viability in balancing humanitarian concerns with strategic and tactical imperatives. I’m reminded here of a recent article  in the European Journal of International Law by Opinio Juris‘s own Ken Anderson, who argues that the rise of international criminal law as an institutional mechanism for enforcement may have unintended consequences in arenas such as IHL, at least until States work through some fundamental substantive issues of law and policy.
Practically speaking, if one believes that international criminal law, through the threat of prosecution, currently over-deters military operators and planners from choosing lesser humanitarian evils, then incorporating new rules of IHL as an ex post defense may have little effect on risk-averse individuals’ decision-making calculi. Might it be better to incorporate them ex ante into the substance of IHL doctrine, so they can then inform military planning, doctrine, training, operations, technological innovation, etc., in humanitarian-protective ways?
More generally, a focus on the underlying substantive doctrine is especially important given the context in which many of these operational choices about lesser evils are made. Responsible military forces often find themselves in asymmetric conflicts against adversaries that disregard basic IHL requirements (such as segregation of military and civilian assets or designation of combatants) and amid populations that are not so neatly divided between pure combatants and pure civilians. As Professor Blum’s Early Warning Procedure example shows, IHL’s rigidity is easily exploited by adversaries seeking to shield themselves from attack or capture or drive up the costs – military, political, diplomatic, and other – of military operations. I have argued here  and here  that a central challenge for IHL in protecting humanitarian interests is providing responsible militaries with legal and strategically viable options for waging war in these contexts without providing additional incentives for the other side to violate its own legal obligations. (This also raises a narrow question whether an adversary’s contributory fault — i.e. its breach of its own IHL obligations — should perhaps factor into a lesser-humanitarian-evil principle or criminal defense.) Might an unintended consequence of Professor Blum’s proposal, designed to provide military operators and planners with more humanitarian-protective flexibility, be to further shift the locus of debates about the interpretation of IHL and resolution of its most difficult dilemmas from State practice to international criminal tribunals?
There are probably some very good reasons for using a criminal law defense as a mechanism for adapting IHL in the way Professor Blum proposes, including that it helps ensure that a new exception to old prohibitions isn’t invoked improperly or so often as to swallow them. This concern is very significant, especially given pressures during warfare to emphasize security priorities and tendencies often to undervalue humanitarian interests. My broader point, however, is that it is difficult to assess the merits of proposed IHL doctrinal reform without considering the mechanisms by which it is articulated, applied, and enforced. I hope Professor Blum’s provocative contribution helps stimulate discussion of those institutional questions in addition to the important substantive ones.