YJIL Online Symposium: Response to Matthew Waxman
The issues Professor Waxman raises about the relationship between international humanitarian law (IHL) and international criminal law (ICL) are of the highest importance to anyone interested in the regulation of warfare, or, indeed, in international regulation more generally. Certainly, the division of labor between IHL and ICL is not an inevitable one. To some degree, it is the consequence of the historical evolution of international law. To some other degree, it reflects the necessary adaptations of state-based obligations turned into individual-oriented duties. Explanations of its origins notwithstanding, the existence of these two, semi-distinct regimes results in some unintended consequences which are often overlooked (and Professor Waxman rightly refers to Ken Anderson’s recent paper as an important exception to this omission).
For example, while proponents of ICL hope that criminal prosecutions will deter IHL violations, there is a less obvious corollary: fear of prosecution can also deter military decision-makers from ratcheting up humanitarian protections, on the grounds that over the long term, self-assumed standards might come to be invoked against them as legally binding requirements, potentially subject to criminal enforcement. I recently argued  that IHL’s existing, status-based targeting doctrines – which allow for the indiscriminate killing of all enemy combatants – should be revised to spare non-threatening soldier from intentional attack. When presenting my argument, I have often encountered the concern that self-imposed limitations will turn quickly into criminally enforceable obligations, consequently leading to a resistance to adopt more restrictive targeting schemes. The looming prospect of international criminal prosecution thus has a chilling effect on efforts to strengthen the underlying substantive norms of IHL.
All of this is to say, in essence, that I fully agree with Prof. Waxman’s emphasis on the question of where we should focus our attention – the substantive, state-centered norms of IHL or the individual criminal liability framework of ICL – when it comes to amending the rules of lawful warfare. I also fully agree that the humanitarian necessity proposal is but one example of this question.
In the case of the humanitarian necessity, specifically, my own view is that it fits better as a criminal defense under ICL than as an amendment to substantive IHL norms. My intuition follows the domestic criminal law framework of recognizing some defenses to criminal liability, which may apply to all or some specific offenses, but are kept separately from the definition of these offenses. This separation operates to safeguard the integrity of the law, leaving room for forgiveness in the particular exceptional instance in which an otherwise-condemnable act may be warranted. Of course, from a realist perspective, the ex post necessity defense functions much like an ex ante authorization.
I was especially intrigued by Professor Waxman’s question regarding contributory fault. I am not entirely sure that contributory fault makes a difference with regard to lesser evil calculations per se (since choosing the more humanitarian-protective course of action should seem preferable regardless of whether or not the enemy has contributed to the necessity situation). Nonetheless, I believe that contributory fault by the enemy might work to assuage our concerns about the genuine existence of a necessity situation, which we might be skeptical of otherwise. More importantly, Prof. Waxman’s question points to a much broader dilemma regarding reciprocity in the laws of war. Over time, the concept of reciprocity has been eliminated from IHL as an organizing principle of the system; reprisals are, by and large, no longer permissible, regardless of the enemy’s own breaches. If we wanted to re-establish the principle of reciprocity, whether in general or in particular instances, there could be two apparent routes for it: one would be to reincorporate it directly into IHL; another would be to recognize reciprocity through international criminal law, for instance, through considering prior enemy breaches as a mitigating factor or full defense. Which approach is preferable?
I have maintained that the notion of humanitarian necessity is better accommodated via ICL. Here, in contrast, I think IHL is the preferable forum. For one thing, reprisals were regulated (and implicitly, partially permitted) under IHL to begin with. More importantly, however, reprisals are not an exceptional breach in exceptional circumstances driven by a utilitarian calculation of humanitarian welfare. Instead, in establishing the principle of reciprocity, they are designed to set the conditions under which compliance with IHL norms should be expected at all. Another reason has to do with the decision-making authority. Even before they were eliminated in the Additional Protocols of 1977, and as maintained by those countries who rejected their elimination (e.g., the U.S. and the U.K.), reprisals could be authorized only by the highest political authorities, not by any individual soldier or commander. This condition was intended to ensure that the decision on noncompliance was carefully thought through and was ultimately adopted by the responsible political authorities of the state. A humanitarian necessity defense, conversely, may have to be invoked by an individual actor, facing an immediate choice-of-evils situation, leaving no time or room for high political consultations.
I am not entirely sure my intuitions here are correct, and in any case, even if reciprocity is reincorporated into IHL, ICL would have to be amended, too, to reflect this development. None of this should detract, however, from understanding Prof. Waxman’s hypothetical about contributory fault and reciprocity as further demonstration of his fundamentally important question about the relationship between IHL and ICL more broadly.