LJIL Symposium: A Comment on Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

[Gabriella Blum is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School.]

In her rich and sophisticated essay, Janina Dill takes on the principle of distinction in international humanitarian law (IHL). She finds that while the principle obscures questions of justness (or unjustness) of cause or individual contribution to the war effort, and thus digresses from an ideal moral vision which accords each individual her dues, it is the best practicable principle in times of war. A more morally just targeting doctrine may have distinguished just combatants from unjust combatants or else ignored the combatant/civilian distinction altogether and just focused on individual contribution to the war. Yet, (un)justness of cause is mired in uncertainty (what Dill terms “an epistemically-cloaked forced choice”) and the complexity of the battlefield makes it impossible to determine individual contribution to the war. Consequently, any attempt to design a more nuanced doctrine of targeting will end up being impossible to administer and too vague to offer real guidance for belligerents, thereby violating the rule of law – a moral principle of its own. The simple principle of distinction under IHL thus ends up being, in Dill’s view, morally just on its own terms.

Dill’s arguments engage with some long-standing debates within the law and ethics of armed conflict, successfully navigating the disciplines of philosophy and law, seeking coherence within each while reconciling their potential conflict. It is impossible to do justice to the many nuances and moves in her argument in this short commentary.

Instead, I will attempt to defend my own proposal for amending the distinction principle within Dill’s framework, thereby engaging with her arguments.

The underlying logic of the principle of distinction has long been that combatants are targetable because of the threat – real or potential – they pose to their adversary, rather than for any individual guilt. “Guilty” soldiers are only those who have committed war crimes, in which case they are subject to punishment under the due process of law. In all other cases, soldiers are only targeted because, and only as long as, they are threatening to the adversary. Once the threat is removed – through capture, surrender, or injury – targeting is no longer lawful. Civilians, conversely, are immune from deliberate attack because they are presumed to be nonthreatening. If and when they do directly participate in hostilities, they may be targeted (and note that civilians may also be punished by the adversary for their mere participation in the conflict).

Much of revisionist Just War Theory (JWT) takes issue with the removal of guilt from the equation and the resulting moral equality of combatants on all sides, the aggressors and the defenders. Proposals to depart from the symmetrical application of IHL (most notable, that of Jeff McMahan), seek to break that symmetry and accord only combatants fighting a just cause the right to target enemy forces.

As Dill points out, if guilt is introduced into the equation, the status-based distinction between combatants and civilians no longer makes sense. After all, civilians may be supporting and contributing to the war effort – through political support, even tax payments – no less than some members of the armed forces. If so, a morally ideal paradigm that gives each individual his or her dues should ignore the combatant/civilian distinction altogether.

Yet killing in battle is not designed to be an execution, only a means of neutralizing a threat. The introduction of guilt as a justification for targeting changes the fundamental premise of the targeting doctrines. Of course, the threat paradigm, like the guilt paradigm, is too crude as it is reflected by IHL: some civilians pose a serious threat even if they do not meet the “direct participation” test and some combatants pose very little threat – a point to which I shall return later. In this sense, we are still far from satisfying an ideal moral paradigm of individual rights, but I think we are moving a little closer. It does not matter if someone threatening is also morally guilty, because we have a right to defend ourselves even against the morally-innocent attacker. It also does not matter if someone who is not threatening is morally guilty, because we do not have a right to seek vengeance from those who have wronged us without due process of law.

So what about tailoring the targeting doctrine to better address the different degrees of threat posed by different individuals? Here Dill argues that any such amendment is bound to be too vague and complex to apply, as it fails to give real guidance to those entrusted with applying the rules and thereby violating the rule of law.

While I share Dill’s concern about the administrability of targeting doctrines (after all, the rules are designed to guide young men and women in making split-second decisions in the midst of battle), I believe that a more nuanced approach to the targeting of combatants than the current principle of distinction calls for is both possible and desirable. In my own article, The Dispensable Lives of Soldiers, I argued that the nature of the modern battlefield is such that combatants are already required to make far more complex targeting decision than ever before. This is due to the fact that combatants often operate from and within civilian populated areas, the fact that some combatants do not wear uniform or bear any other clear distinguishing marks, the now rife practice of contracting out  many traditional military functions to civilian contractors, the frequent support rendered by the local civilian population to the combatants’ efforts, and the nature of modern tactics and weapons – all of which make the seemingly clear rule of distinction highly confounding in its application.

Of course, one might reasonably argue that to make things even more complicated would be unjust towards those who have to apply the rules in action. Yet, this added complexity and the concern Dill points to in terms of the rule of law must be weighed against the lives taken on the battlefield.

For this reason, I’ve proposed reinterpreting the principle of distinction so that the status-based classification of combatants be complemented by a test of threat: only those combatants who are immediately threatening or else serve in indispensable functions in the enemy forces be deemed targetable at all times. Another proposed amendment is a reinterpretation of the principle of military necessity through the introduction of a least-harmful-means test, under which an alterna­tive of capture or disabling of the enemy would be preferred to killing whenever feasible.

This is not, let me stress, the current state of the law, nor do I propose to introduce these amendments as mandatory rules before we have to evaluate their operation and weigh the administrability concerns raised by Dill. Still, as a matter of moral warfare, I would urge militaries to adopt these constraints to the extent possible; which, I believe, brings us a little closer to the ideal of using force only against those who are actually threatening (but still, not necessarily morally guilty), without compromising the law’s clarity or guiding functions.