More on the End Game

by Deborah Pearlstein

Thanks to Ken for posting the link to Jeh Johnson’s important speech below, and bravo to Jeh Johnson for saying it aloud. In addition to the central passage Ken highlights, I might add this from Johnson’s speech (to reiterate, Johnson is General Counsel to the U.S. Department of Defense).

“War” must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man – if he is a “privileged belligerent,” consistent with the laws of war — to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children. In its 12th year, we must not accept the current conflict, and all that it entails, as the “new normal.” Peace must be regarded as the norm toward which the human race continually strives.

The habit of characterizing the United States’ conflict with Al Qaeda as a war without end – of detention within that war as indefinite, of the current pace of targeting operations as something the United States will, now having embarked upon it, never abandon – is something all sides of the legal debates have done, in and out of government. Johnson’s speech should, I think, lead us all to question the habit of accepting that assumption.

3 Responses

  1. I really enjoy this quote, but it provoked in me a question that I’ve not been able to answer.  He states that “war permits . . . one man to kill another” – but I’m not sure that’s true, is it?  I mean, codified IHL never conveys any sort of permission on a combatant – rather the provisions appear proscriptive, saying what can’t be done.  If there is indeed ‘permission’ in the laws of war to kill, it’s well hidden.  Domestic law, fair enough, probably thee exists some authorisation there when war is declared.  Would Customary IHL provide such permission?   Just to mention, I know that ‘amnesties’ and other forms of non-prosecution for what would otherwise be unlawful acts comes into play. But that’s different than ‘permission’ to kill.

    Part of the motivation for my question lies in the intersection of IHL and IHRL, where the latter might in many instances prohibit killing that IHL otherwise ‘permits’ – or rather people seem to think it ‘permits.’

    Grateful for you patience, appreciating that I’m straying off the point a bit.

  2. Vic,

    Insightful question.  The ‘permission’ is inferred from article 82 of Geneva Convention III, and case law supports the view that it exists in customary international law (see List, Galic, Public committe Against Torture). See also the ICRC Commentary on Additional Protocol I.

    I recommend the ASIL report ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ by Goldman and Tittemore. I would also point to the preamble to the St Petersburg Declaration of 1868 (‘That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men’).

    Let me know if you would like full citations to the above. 

  3. Thank you very much Ian, appreciate the response.  Do you think it is as strong in NAIC?

    I had a look at some of those sources (not yet all), but they seem to base the ‘permission’ on the immunity provisions, and related obligations not to prosecute an enemy soldier unless one would prosecute one’s own soldier for the same.  But for me, all of that is different that ‘permission’ (leaving aside the constitutional law maxim of ‘all that is not illegal is legal.’)

    The difficulty I have with this (non)’permission’ is that we appear to interpret it as outweighing the IHRL prohibition on arbitrary dep. of life.  We think soldiers can kill enemies in ways that are not be ‘necessary or proportionate’ (ie, arbitrary) because the killing was ‘in line with IHL provisions.’

    I know this is a well-hashed argument (lex specialis, ICJ’s Advisory opinions, Wall case, etc), but  I don’t see it.  IHL doesn’t give a soldier ‘permission’ that is stronger than a countervailing prohibition.  True, it says the soldier can’t be prosecuted for that act, but that doesn’t make it any less a violation of HR law.  The ‘combatant’s privilege’ is not unlike the privilege for any diplomat – it conveys immunity, but doesn’t ‘permit’ them to break the law.  In this case I’m talking of breaking IHRL.

    The concrete example – in an NAIC, a large group of gov’t soldiers encounter a rebel (assuming IHL applies) in a situation where the rebel could be easily caught. The soldiers, with no risk to themselves, have equal option to kill or capture. IHL doesn’t care which they choose, enemies are targetable 24/7, and, most IHL scholars would, there is a ‘permission’ to kill in this circumstance.   However IHRL would insist the gov’t soldiers are committing a violation if they kill without trying to capture. Killing in this instance is violating the law and no ‘permission’ from IHL changes that fact.

    True, the soldier can’t be criminally prosecuted for this ‘homocide,’ and their domestic law (probably) permits the killing too. But they are committing an IHRL violation.  What am I missing, why doesn’t the IHRL prohibition on killing the rebel in that case trump the IHL (so-called) permission?
    [Just to note, my understanding of lex specialis is that it is triggered by a conflict in the law, and in this case, as the soldier CAN comply with both legal regimes, no conflict, so no lex specialis analysis required.]

    Again, grateful for your (or anyone’s) patience in explaining this, as I really don’t see it so clearly.  And in any event, if countries don’t want to respect their IHRL obligations during wartime, then perhaps, file a declaration/interpretation upon ratification, or similar.  But they can’t just ignore them when IHL also applies, can they?

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