YJIL Online Symposium: “The Laws of War and the ‘Lesser Evil’”

by Gabriella Blum

[We are pleased to introduce the second part of the YJIL Online Symposium discussion of articles from Vol. 35-1. Today, we are delighted to host a discussion of Gabriella Blum's recent article with a comment by Professor Matthew Waxman later today. Professor Blum is an Assistant Professor of Law at Harvard Law School.] Why is it that international humanitarian law (IHL) allows no justification for its breach even when such conduct would actually produce less humanitarian harm than if following the law? Why would a defendant who violated IHL in order to save lives be convicted of war crimes? These are the questions I seek to address in my recent Article, The Laws of War and the ‘Lesser Evil’.”

My interest in this puzzle was sparked by the Israeli Supreme Court’s decision to strike down the “Early Warning Procedure” employed by the Israel Defense Forces (IDF) in the West Bank. Under the Procedure, the IDF would approach a neighbor of a suspected Palestinian militant and request the neighbor to urge the suspect to surrender quietly to the security forces. If the suspect refused, the neighbor would then attempt to clear the residence from its other inhabitants. The stated goal of the Procedure was to reduce potential casualties, both among IDF and local civilians, in case the arrest turned violent. Despite some evidence that the Procedure was effective in reducing civilian casualties, the Court ruled that it violated strict prohibitions on the reliance on local civilians by an Occupying Power for security operations, and was therefore unlawful.

The prohibition cited by the Israeli court is but one instance of IHL’s absolutist stance. Others include the prohibitions on mercy killings, the assassination of rogue leaders, the use of non-lethal chemical weapons, or the intentional killing of any civilian – even where such actions are taken with the attempt to minimize humanitarian harm. The claim that certain prohibited acts might actually lead to the saving of innocent lives, even many thousands of lives, is categorically rejected by the laws of war. Put bluntly, in many cases IHL demands an excessive sacrifice of lives for preserving the integrity of the law.

Why this should be so is hardly self-evident. Striking an uneasy balance between the inevitable existence of war and the concern for those affected by it, IHL rules already take into account considerations of military necessity. There is no puzzle, therefore, as to why military necessity could not be invoked as a justification for violating the law. But if IHL’s stated goal is to promote humanitarian welfare as much as possible within the constraints of war, it is not at all clear why IHL should also reject arguments of humanitarian necessity – that is, measures that are intended to minimize suffering – as a justification for breaking the law.

The developments of the past decade or so in the field of international criminal law have made this question particularly pressing. For a particular individual facing a criminal trial, the recognition or rejection of a humanitarian necessity claim could make the difference between (legal) innocence and guilt. Ironically, the current Statute of the International Criminal Court (ICC) does recognize a form of military necessity exemption from liability, but not any form of a humanitarian necessity.

To demonstrate what might be at stake in recognizing or excluding a humanitarian necessity justification, I rely on three real-life case studies. Each involves a claim that a state’s armed forces have violated the laws of war in order to avoid greater humanitarian suffering. The first is the “Early Warning Procedure,” described above. The second is the paradigmatic case of torturing an individual to retrieve information that would avert an imminent attack. The third case is the atomic bombings of Hiroshima and Nagasaki at the end of World War II, which the then Secretary of War Henry Stimson described as “deliberate, premeditated destruction [which] was our least abhorrent choice.” I use the atomic bombings as an extreme metonymy for all deliberate infliction of civilian casualties in the effort to spare a greater number of casualties.

I explore possible reasons for why IHL would nonetheless assume an absolutist stance. I begin with the obvious analogy of the necessity defense in domestic criminal law, often termed a choice-of-evil defense. The domestic paradigm proves to be a useful starting point, but an imperfect one. In some ways, it is too restrictive in what it justifies. Its narrow scope is premised on a deep suspicion of the ability of individuals to make lesser-evil choices and on the very low probability that individuals would actually encounter choice-of-evils situations, especially such that involve life-life tradeoffs. In war, decisions are made (or adopted post-facto) by governments, not individuals, and all of war is a choice of evils, including life-life tradeoffs.

In some ways, however, the necessity defense in criminal law is too permissive. Although it assumes that individuals would normally prefer their own welfare to that of others, it does not assume that individuals have an innate instinct to harm others. It thus makes no distinctions between violations that are committed by an actor for her own sake and those committed to guard others’ interests. Again, war offers a very different context. In war, the welfare of one party is often perceived as enhanced by the harm to the enemy. In such a (perceived) zero-sum game, we must be especially suspicious about the motivations behind violations of the law.

Since the analogy to the domestic law is inconclusive, I turn to three first-order possible explanations for why IHL would maintain an absolutist stance. The first is based on deontological moral reasoning. The second follows from traditional rule-consequentialist arguments, including concerns about uncertainty, slippery slopes, and spillover effects. The third focuses on institutional considerations, including the process of lawmaking, adjudication, and enforcement of IHL rules. I argue that none of these accounts can fully explain IHL’s wholesale exclusion of humanitarian necessity as a justification for violating its first-order rules. In particular, they cannot explain the rejection of a choice-of-evils paradigm in IHL, at the same time that this paradigm is accepted (in one form or another) in domestic law.

The article then proceeds to develop a blueprint for defining a humanitarian justification for (prima facie) violations of the laws of war. The case studies that are described earlier make vivid the challenge of tempering the laws of war with a humanitarian justification. The entire project of IHL is premised on the idea that some cruelty must be curbed, even at the expense of prolonging lawful violence and suffering. That project would collapse if a state could claim to reduce suffering by carpet bombing the enemy’s capital just to finish the war more quickly—and only in part because a long history of much cruelty refutes the correlation between superfluous ruthlessness and speedy victory. The effort here, instead, is to find a place for a humanitarian necessity justification that would allow parties in conflict to engage in welfare-increasing actions without collapsing the entire project of IHL.

The blueprint definition I ultimately suggest is designed to work in a way that would allow us to distinguish the “right” case from all the wrong ones. It is as follows:

A person shall not be criminally responsible if, at the time of that person’s conduct: . . . The conduct which is alleged to constitute a crime was designed to minimize harm to individuals other than the defendant’s compatriots, the person could reasonably expect that his action would be effective as the direct cause of minimizing the harm, and there were no less harmful alternatives under the circumstances to produce a similar humanitarian outcome.

Three elements of this definition are worth emphasizing (and all elements are open to further debate and examination). The first is that to benefit from a humanitarian necessity justification, the actor must show that the violation of the law was designed to benefit not – or no only – his own fellow soldiers or civilians, but enemy nationals. The rationale behind this condition is that IHL was designed to curb the aggressive tendencies of parties in war and offer protections to the most vulnerable. It is therefore preoccupied primarily with how parties treat their enemies, not how they treat their own people. For the humanitarian necessity justification to be compatible with the project of IHL, it must follow a similar logic. Consequently, the paradigmatic case of interrogational torture, most commonly used to avert an attack on one’s own people, cannot be justified on the basis of a humanitarian necessity.

A second, straightforward element of the justification is that the actor used the least egregious means possible in choosing between two evils. Following this condition, whatever one’s judgment is of the atomic bombing of Hiroshima, the bombing of Nagasaki – just three days after Hiroshima and without testing alternative means of securing Japanese surrender – could not be justified under a humanitarian necessity.

A third crucial element is causation: The justification depends on a direct causal relation between the breach of law and the aversion of harm. This condition follows from the internal logic of IHL, which does not allow for unbounded cruelty in the name of bringing wars closer to end.

My argument is made in full recognition that most violations of IHL are not motivated by the wish to cause less humanitarian harm. Indeed, if human nature were prone to this kind of calculation, much of IHL would be redundant. I also recognize the possible dangers of malevolent exploitation that any exemption from liability for war crimes might harbor. Nonetheless, the fact remains that some violations of the laws of war could actually cause less suffering overall. Exceptional as these violations may be, if the absolutist stance of IHL inhibits states from committing them, then this absolutist stance does a disservice to the goals of IHL.


6 Responses

  1. These are the three hypos that are presented to support the idea of a humanitarian necessity defense and the question is why the strict rule of IHL on these things.  Here are a couple of thoughts.

    1. approach a neighbor of a suspected Palestinian militant and request the neighbor to urge the suspect to surrender quietly to the security forces.

    What if the neighbor says no?  Do the security forces say “Thank you and have a nice day.”?  The neighbor is presumably a civilian who does not want to be in the middle of this operation.  Instrumentalizing civilians by the suspected Palestinian militant or the security forces places the civilian in a dilemma.  The question is whether we are willing to have civilians be placed in that dilemma.  The idea in IHL appears to be that the best rule is not to put civilians in this dilemma because it creates greater risk of civilian deaths than having a rule that allows this to happen.  The forces involved can make all kinds of assurances that this will not happen, but maybe IHL has a little hesitancy to give sufficient credibility to those statements of one or the other side of the forces.  What about alternative methods like a bullhorn.  The suspected Palestinian militant once on notice has any of a number of responses available in either case including trying to hold everyone in the building hostage to raise the civilian cost of the military operation in the form of collateral damage.  I am just not convinced that the technique suggested protects civilians in a better way than the rule of IHL.

    2. torturing an individual to retrieve information that would avert an imminent attack.

    Again, the hypothetical assumes that the torture works to retrieve this information that would avert an imminent attack.  The question is whether what the one who tortures or the one who is tortured says should have any credibility about the torture “working” to provide actionable intelligence.  The strict IHL rule seems to suggest that those complying with the laws of war should not go there because of the wealth of bad torture experience in human history.

    3. Atomic bombings of Hiroshima and Nagasaki at the end of World War II, which the then Secretary of War Henry Stimson described as “deliberate, premeditated destruction [which] was our least abhorrent choice.”

    The question here seems to me the type of effort that was used to avoid civilian deaths.  I believe in the last year or so there has been declassified a leaflet campaign that was done at Hiroshima and (possibly) Nagasaki that spoke in the most explicit terms of the horrendous atomic bomb that would be dropped and urging the civilian population to flee.  I do not know if it was in English only or Japanese, but the point to me is that an effort was made to reduce civilian casualties in a reasonable manner.  And, in comparing the types of alternatives (demonstration bomb – what if it did not work, invasion (how many troops lost), etc) that people have gone over for generations, one can see that an effort to balance necessity and proportionality was in the calculus at the time.  Did that calculus devalue Japanese civilians lives as collateral damage as compared to allied troops lives in a way that we would not do today?  I do not know.  The point is that even in these cases the effort was made to weigh the law of war consequences by the power using the new and terrible weapon.  And that weighing is something that is permitted in the IHL while the other two cases are not.

    To sum up, maybe humanitarian necessity is not a category because of the long experience that suggests that we can not trust ourselves as humans with regard to enemies or civilians to act right enough of the time.


  2. In the 1960′s Herman Kahn published his book Thinking about the Unthinkable. It applied game theory rules to nuclear deterrence. One conclusion was that a clear and obvious good, the absence of nuclear war through “Mutually Assured Destruction”, was the direct result of the enemy’s perception of our willingness to do something terrible, the mass murder of millions of civilians using strategic nuclear weapons in retaliation to an attack.

    At the time, the only question on the table was effectiveness. When failure represented the end of the world, you do not worry about the criminal nature of your actions should things fail. However, clearly nuclear retaliation, had it occurred, would have violated basic IHL rules about protecting civilians. Of course, if everyone was dead there would be nobody left to judge the actions.

    After the fall of the Soviets and the industrialization of China, the possibility of a nuclear exchange that ends civilization has dropped, but a nuclear armed Iran greatly increases the possibility that a smaller scale nuclear exchange will occur.

    Meanwhile, the current legal debates about IHL as applied to current non nuclear conflicts make it clear that the legal community has decided not to think at all about the unthinkable. The Europeans can afford to ignore how international deterrence is made, because they have no part it it. They can rely on the US preparations to do terrible things in order to keep them safe, and then feel superior because they themselves do not contemplate doing the same terrible things. However, even the US community seems to believe that as long as the worst case for which we are prepared does not actually happen, we do not have to adjust our thinking about what is and is not legally permitted to accommodate that which every President in the last 60 years has been prepared to do at a moments notice. We argue about the legality of advisory opinions that may or may not have affected dozens of people who are still alive, while ignoring the fact that the President is accompanied by a man carrying the “football” that, if used, would result in the death of millions of innocent civilians.

    What is reality? Is MAD simply a theory because it hasn’t happened yet, and as long as it doesn’t occur we can ignore it when we interpret the application of IHL to lesser conflicts? Is the core of American defense policy over the last 70 years a reality, using the concrete good it has achieved (peace and security) to justify the constant preparation and willingness to commit terrible acts that achieves this result. It is certainly a good thing that conspiracy is not a crime in international law, because we have all been complicit in conspiring to commit crimes for which we must be prepared, but hope never to actually execute.

    What Herman Kahn reminds us is that every step we take to make make ourselves feel or appear better, more noble, more moral, or more legal also potentially undermines our deterrent effect on threats like a nuclear Iran. Alternately, any concrete step we take to deter Iran from acquiring and using nuclear weapons will be seen by the IHL community as America rejecting the most basic tenets of international law. Alternately, we can continue the wide scale intellectually dishonest approach of ignoring the unthinkable and pretending that the bad stuff isn’t real and thus does not have to be accommodated by our academic theories of how things work.

  3. “any concrete step”.  This is a euphemism for what exactly? It smells of – “if we do not invade and overthrow the Iranian regime” is the only possible concrete step.  Am I misinterpreting you?

  4. In strategic nuclear terms, a step to deter would be some sort of specific threat, the targeting of strategic weapons, movement of fleets or bombers, countermeasures like the anti-missile radar in Eastern Europe, steps to reinforce the preparation for or threat of retaliation. Any attack would fall under the category of preemption rather than deterrence.

    It has been so long since the US has articulated a strategic defense policy that the first concrete step should be to restate that Mutually Assured Destruction is still a strategic principle and that any attack on the US or its allies by unconventional means will still lead to a nuclear retaliation just as was the policy in the ’60s against the Soviets.

  5. I understand.  But in all the discussion, hasn’t that threat already been made by the US if an unconventional attack was made on Israel.  I vaguely remember that having been done at least once in the Bush era and have heard nothing that says we have stepped away from that.  Also, I am pretty sure that Israel has said as much about its response to unconventional attack.

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