A Response to Kevin Jon Heller by Gabriella Blum

by Harvard International Law Journal

[Gabriella Blum, author of On a Differential Law of War, responds to Kevin Jon Heller]

First of all, let me express my thanks to Professor Heller for his exceptionally careful and thoughtful reading, as well as for his insightful commentary. It is also a very generous reading, for which I am grateful. I am especially pleased at the opportunity to respond to his comments, as I think they raise a crucial issue.

The main theme of Prof. Heller’s commentary is the difficulty, perhaps impossibility, of maintaining the separation between the jus in bello and the jus ad bellum. The notion that the rules of war should apply equally to all sides – regardless of whether any party’s entry into the war was right or wrong at the outset – has been a feature of Just War doctrine since Grotius (who himself built on the Scholastics), but remains intensely debated even today. Prof. Heller illustrates persuasively how, as we consider raising the humanitarian obligations of stronger parties in wartime (thereby importing greater moral content, in terms of our theory of global justice, into IHL itself), ignoring the comparative justness of the parties’ causes becomes even less normatively attractive.

Indeed, as Prof. Heller surmised, I am generally sympathetic to his position. I agree that it is difficult to accept the complete divorce of the jus in bello from the jus ad bellum as a moral matter; this is especially true concerning the equal status of combatants, i.e., that no soldier commits a crime when he fights other soldiers, even if he fights an unjust war. Unless we believe that individuals bear no moral responsibility whatsoever for their government’s actions, there is something intuitively disconcerting about supposing we can judge how a soldier fights entirely independently of whether he should be fighting at all. (In a different piece, I also argued that soldiers’ lives in general should be granted more protection than under current IHL.) And precisely for the moral incoherence of the dualist model, I think that in reality our assessments of the jus ad bellum do often affect our evaluations of the jus in bello; we might do well to acknowledge this openly. Overall, then, to the extent that my article supplies another arrow in the quiver of those questioning the jus ad bellum/jus in bello separation, I am quite comfortable.

In some sense, though, the main purpose of my article was to take on a narrower question – namely, whether power disparities (alone) might be sufficient grounds to treat belligerent parties differently under IHL. This particular challenge to the equal application principle had never before been addressed in the IHL literature, although it had received attention in other areas of international law. By focusing solely on power and resources, my aim was to explore a new argument with regard to armed conflict, as well as to set up a “controlled” test of the degree to which analogies between IHL and other fields (such as environment and trade) seem plausible.

Ultimately, as to IHL, my sense is that differentiated obligations based on relative power stand a better chance of gaining acceptance than those tied to jus ad bellum considerations. After all, some “strong” parties might begrudgingly or even willingly accept higher standards on that basis; we see this to some extent in practice already. But “unjust” parties are unlikely ever to admit being in the wrong, much less to acquiesce in carrying heavier burdens for that reason. In other words, the same moral subjectivity that keeps the dualist model in place would render any humanitarian CDRs based on justness of cause meaningless as a matter of practice.

Still, the real dilemma implicated by Prof. Heller’s comments is this: What would happen under a hypothetical situation where there is a binding determination of the jus ad bellum question, but the disparity in power is in favor of the just party? Should heightened humanitarian obligations follow the power advantage regardless of rightness of cause? My sense is that Heller is right to suggest that the dilemmas I raise in my paper are exacerbated, even though I am not sure they become fundamentally different. Consider, for instance, the distributive justice dilemmas I point at, including the questions about who “the enemy” is and what we owe our enemies in war. The distinction between citizenry and government, the effects of democratic political associations, and concerns that an enemy government might exploit any additional assistance provided to its population all exist whether the enemy is fighting a just or an unjust war. Thus, if civilians are never my enemy, the question whether their government is fighting an unjust war should make no difference to a distributive justice paradigm that seeks greater equality in the protection of civilians on all sides of the war. If, however, we hold democratic citizenries responsible for their government’s actions, it is more difficult to morally justify increasing protection for a citizenry that supports an unjust war.

The implications of departing from a dualist model are heightened, I think, when we consider a utilitarian framework, and particularly, the concern that CDRs might invite further wars. Prof. Heller is absolutely right that once we factor in the possibility of inviting more unjust wars, this concern becomes especially grave. On the flip side, we must also consider the possibility that under the existing model of equal application, weaker parties who do have a just cause for war are deterred from pursuing it because they are unable to face their stronger aggressor. If our main goal, therefore, is reducing the overall incidence of wars, CDRs might be too risky. If, however, our goal is to prevent unjust wars, but to allow for just ones to be waged, the case against CDRs becomes ambiguous.

http://opiniojuris.org/2011/02/09/hilj_blum-responds-to-heller/

One Response

  1. I have not had the advantage of reading Prof. Blum’s article; rather only the three posts on Opinio Juris. However, 2 issues come to mind.
     
    1.       Thinking about  what CDRs might look like under LOAC/IHL, in his reply Prof. Heller refers to “requiring the aggressive state to take greater precautions before launching attacks, requiring it to launch more precise attacks in general, or requiring it to provide greater humanitarian relief to its civilian victims”. I am not sure if these were also raised by Prof. Blum. However, if we look at article 57 of Additional Protocol I, we see words like “constant care”, “everything feasible”, and “all feasible precautions” and article 69 states “to the fullest extent of the means available”. This strikes me as a common legal requirement but where the content varies based on capability. Perhaps the issue I raise is addressed in the article itself, so my apologies if I am raising an issue that is covered.

    2.       The other point that struck me was the reference to “yield overall greater humanitarian welfare”. Humanitarian concerns are a significant aspect of IHL/LOAC, but not the only concern. IHL/LOAC is about balancing military necessity with humanitarian concerns. Neither should be put in front of the other. Again, perhaps this addressed in the article.

     

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