LJIL Symposium: A Response to Professor Gabby Blum and Professor Chris Kutz

by Janina Dill

[Dr. Janina Dill is a Hedley Bull Fellow at the Department of Politics and International Relations and Research Fellow in Politics at Merton College, Oxford]

I am very grateful to Gabby Blum and Chris Kutz for their thoughtful comments on my paper. We agree on the fundamental challenge: killing combatants in accordance with the principle of distinction under International Humanitarian Law (IHL) is morally problematic. In my paper I engage the preferred remedy of a growing number of philosophers, which is to distinguish between individuals who are liable to being killed and those who are not. I show why it is impossible for IHL to regulate warfare accordingly. Nonetheless, I accept such an individual rights-based approach to justifying killing as morally appropriate in war. Professor Blum disagrees on the grounds that “killing in battle is not designed to be an execution”. That is, of course, true. Acts in war are an appropriate means to mete out neither moral nor legal punishment. But can we therefore dismiss as irrelevant the moral status of the individuals whose deliberate killing IHL sanctions?

The impetus behind Blum’s own proposal is the conviction that combatants’ lives are no less valuable than others’. From this acceptance that all human life is of prima facie equal value generally springs the notion that individuals have a right to their own life that they can forfeit only through their own conduct. Blum holds that in war posing a threat is enough to be subject to the threatened combatant’s right to (presumably lethal) self-defense. It has to be an actual, immediate threat, not the kind of presumed potential threat that IHL is satisfied with, but 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,” or so Blum argues. I do not have the space to problematize the terms innocent and guilty here, but even if the would-be defender had no involvement in bringing about the situation in which he is threatened, his right to use lethal force against a likewise completely innocent attacker would at least be questionable.

Crucially, this innocent threat/innocent defender scenario is rarely encountered in war. What if the would-be defender was guilty himself of posing a threat? The likeliest case in war is that the combatant supposedly exercising self-defense at the same time poses a threat to his attacker. Normally, in this case we decide who actually has a right to self-defense by making a judgement about the difference in moral status. That the victim of an assault uses force to fight back does not give her attacker a moral right to defend himself. If we refuse to take moral status into account and insist on the symmetry between combatants on both sides, such cases of “mutual self-defense” reduce the principle to absurdity.

I do not argue that we should change IL either to reflect the liability approach or to challenge the symmetry between belligerents. Moreover, I wholeheartedly agree with Blum that it would be legally and morally preferable if IHL allowed the killing of fewer combatants and demanded that those who can be are spared. While such proposals have met with criticism by military practitioners, they certainly raise fewer concerns of practicability than distinction according to individual liability. Yet, they do not solve the problem this paper grapples with: the fact that IHL does not and, I argue, cannot vouchsafe the protection of individual rights in war.

In his considered engagement with my paper Professor Kutz raises two questions that, in the kindest possible way, query my grasp on reality. I appreciate the implied charges of excessive optimism about the reality of IL and of utopianism regarding its potential development. I will maintain that optimism is warranted and that the exploration of what might seem utopian is necessary precisely because IHL must be excluded from any optimistic assessment of IL as a whole. Professor Kutz wonders whether IHL with its failure to adequately protect the individual in this respect really differs from general IL as much as I suggest. I think that depends on, first, what standard we use to judge general IL and, second, which part of IL we use as point of reference for the comparison with IHL. If we pit IL against the municipal law of most liberal democratic states then, yes, it seems “obdurately focused on national interests”. If we compare it to what it used to be not a hundred years ago, the extent to which IL now takes the interests of the individual into account is remarkable. Of course, this “individualization” is extremely uneven across IL. It is most evident in that branch of IL that increasingly encroaches on the regulative purview of IHL – Human Rights Law. This encroachment itself is an indication that IHL is perceived as not fully adequate.

Our respective positions on the progressiveness of IL and the extent to which IHL lags behind remain impressionistic. Yet, however much we think IHL under-weighs individual rights compared to general IL, the fact that it comparatively under-weighs them at all is by no means of purely academic concern. The consistent experience of modern militaries is that it is simply not enough to wage war in accordance with IHL to quell public disaffection. This bears testimony to the fact that IHL, when it legally privileges lethal attacks on a large segment of a society and otherwise treats human beings as potential collateral damage, is fundamentally at odds with widely shared normative beliefs and expectations towards IL. When law, specifically the kind that is not consistently and comprehensively enforced, is no longer a sufficient source of legitimacy, it has a problem.

In addition, Professor Kutz is even less convinced of my take on where IL could develop. In fact, he is “puzzled by what sorts of institutional reforms as ways to increase the clarity of who counts as an illegitimate aggressor” I might have in mind. I agree with him that a court that ex ante decides who is an aggressor and who is not is an extremely unlikely prospect. More importantly, it would not at all solve the problem at hand: the collective nature of war and the fact that it will regularly present what I call an “epistemically cloaked forced choice” regarding the protection of individual rights. If we accept, first, that safeguarding individual rights is ultimately the correct moral standard in international relations and the touchstone of successful IL; second, that it is impossible to avoid large scale violations of individual rights in war; and third, that the international order requires a mechanism for the legitimate use of violence in order to be sustainable, we need to find what I would refer to as “forcible alternatives to war”. Of course, proposals such as the enforcement of IL directly vis-à-vis individual political leaders, humanitarian rescue missions by an international police force or institutionally tamed targeted killings seem utopian and/or morally problematic in their own right. It is for that reason that they deserve separate elaboration. I stand by the argument that because IL cannot render war morally acceptable, we need to refocus our efforts from changing war to transcending it.

http://opiniojuris.org/2013/11/18/ljil-symposium-response-professor-gabby-blum-professor-chris-kutz/

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