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Law of War

Schabas on the OTP’s Attempt to Reconsider Perisic

by Kevin Jon Heller

It’s an excellent post, well worth reading in its entirety. I just want to flag two particularly important points. The first concerns whether, in light of Šainović, Perišić can really be considered fundamentally flawed. Schabas compellingly argues no:

But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?

First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the finding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).

The second point concerns the human-rights implications of “reconsidering” Perišić’s acquittal 11 months after it became final. I considered mentioning the issue in my previous post, but ultimately didn’t. Here is what Schabas says:

The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.

2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.

Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.

The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.

I have nothing to add to Schabas’s points. I completely agree with them. We can only hope, for the sake of the ICTY’s legitimacy, that the Appeals Chamber does as well.

Guest Post: Meloni–Can the ICC investigate UK higher echelons’ command responsibility for torture committed by the armed forces against Iraqi detainees?

by Chantal Meloni

[Dr. Chantal Meloni teaches international criminal law at the University of Milan is an Alexander von Humboldt Scholar at Humboldt University of Berlin.]

1. A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008.

The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR).

The lawyers’ allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq.

According to the victims’ account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to “systemic torture”. Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes.

2. This is not the first time that the behaviour of the UK military forces in Iraq is challenged before the ICC. In fact, hundreds of complaints have been brought on various grounds both to domestic courts and to the ICC since the beginning of the war. As for the ICC, after the initial opening of a preliminary examination, following to over 404 communications by Iraqi victims, in 2006 the ICC Prosecutor issued a first decision determining not to open an investigation in the UK responsibilities in Iraq. According to that decision, although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhumane treatment, the gravity threshold was not met. Indeed the number of victims that had been taken into account at that time was very limited, totalling in all less than 20 persons, so that the Prosecutor found that the ‘quantitative criteria’, a key consideration of the ICC prosecutorial strategy when assessing the gravity threshold, was not fulfilled.

Therefore, what is there new that in the view of the lawyers warranted the re-proposition of such a request? In the first place it shall be noted in this regard that during the eight years that passed since then many more abuse allegations have emerged (see the Complaint, p. 110 ff.). Most notably, hundreds of torture and mistreatment allegations show a pattern – spanning across time, technique and location – which would indicate the existence of a (criminal) policy adopted by the UK military forces when dealing with the interrogation of Iraqi detainees under their custody.

In the words of the lawyers, “it was not the result of personal misconduct on the part of a few individual soldiers, but rather, constituted widespread and systematic mistreatment perpetrated by the UK forces as a whole”. (more…)

Lieblich Guest Post: Yet Another Front in Israeli/Palestinian Lawfare–International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC), Herzliya; his book, International Law and Civil Wars: Intervention and Consent, has been recently published by Routledge]

While opinions are split whether U.S. Secretary of State John Kerry will be able to bring, in his recent efforts, any progress to the stalemated Israeli-Palestinian conflict, it seems that Israel has recently decided to take the conflict back to the 19th century – at least legally. This time, we are talking about the revival of none other than age-old maritime prize law – a traditional body of the international law of war dealing with the belligerent capture of vessels and cargos.

The importance of maritime prize law peaked in the American Civil War, and steadily declined through the two World Wars into virtual disuse in the last decades. However, on the last week of December, the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel, held a first hearing in prize proceedings initiated by the State of Israel against the Estelle, a Finnish vessel, intercepted by the Israeli navy while attempting to symbolically breach the Gaza blockade in late 2012 (see the story, in Hebrew, here). The state requests the court to condemn the Estelle, which carried cement and toys, based on jurisdiction derived from the British Naval Prize Act of 1864 (!), and conferred to prize courts in Mandatory Palestine by the British Prize Act of 1939. At the time, Britain was interested in conferring such jurisdiction to courts in its colonies, protectorates and mandates in order to facilitate the condemnation of Axis maritime prizes captured in nearby waters. This power was never before exercised by Israel, which inherited the mandatory legislation upon its creation in 1948.

While the British prize laws are in essence jurisdiction-conferring rules, and deal mostly with procedure, the substantive norms of international prize law are derived from customary international law. Here lie the interesting aspects of the case. It is common knowledge, among those dealing with the nitty-gritty of IHL, that the process known as the “humanization of international humanitarian law” – as famously put by Theodor Meron – has generally not trickled to the law on maritime warfare. Prize law is perhaps a key example for this phenomenon.

For instance, while in ground warfare (and occupation) private property cannot be seized or destroyed absent pressing military necessity (for instance, Articles 23(g) & 52 of Hague Convention IV), private ships can be captured and condemned through proceedings in front of the seizing state’s prize courts, just for flying the enemy state’s flag. Essentially, thus, prize law doesn’t differentiate between the “enemy” state and its individual citizens, as modern IHL otherwise purports to do. In addition, “neutral” vessels can be condemned for carrying “contraband” – defined unilaterally by the capturing state – or, as in the case of the Estelle, for attempting to breach a blockade (for an attempt to state the customary international law on these issues see Articles 93 –104, 146, of the 1994 San Remo Manual). It should be added that the concept of blockade in itself seems like an outlier in contemporary law, since it can be looked upon, through a human rights prism, as a form of collective sanction against civilians.


Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 2)

by Lorenzo Kamel

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University's History Department and a Visiting Fellow (2013/2014) at Harvard University's Center for Middle Eastern Studies.]

My previous post analyzed the EU’s approach towards Northern Cyprus and Western Sahara. This post will focus on the Palestinian Territories and the EU’s approach towards Israel’s policies in the area.

The Palestinian Territories represent a “sui generis case” among most of the “occupations” currently in place in different parts of the world. Not only in consideration of how long this occupation has been prolonged, but also because it represents one of the rare cases in which a military power “has established a distinct military government over occupied areas in accordance with the framework of the law of occupation.”

In other somewhat similar contexts, such as, just to name a few, Abkhazia, the Turkish Republic of Northern Cyprus (TRNC) and East Turkestan, the occupying powers of these areas have created in loco nominally independent states (TRNC-Turkey, Abkhazia-Russia and so on), and/or are not building settlements in their “occupied territories” (Chechnya is just an example), and/or have incorporated the local inhabitants as their citizens: with all the guarantees, rights and problems that this entails.

Some scholars have stressed out that the Golan Heights and East Jerusalem have been (unofficially, in the case of East Jerusalem) annexed by the State of Israel and that despite this, the EU Guidelines (discussed in the previous post) are to be enforced in these territories as well. Therefore, according to them, the comparison with other “occupations” would show that the Palestinian case cannot be considered “sui generis” and that the EU approach on the issue is marred by incoherence. These claims deserve a short preliminary clarification.


Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 1)

by Lorenzo Kamel

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University's History Department and a Visiting Fellow (2013/2014) at Harvard University's Center for Middle Eastern Studies.]

On the anniversary of the International Day of Human Rights (December 10th) the European Parliament approved a four-year agreement with Morocco to allow European boats to fish in territorial waters off Western Sahara. The EU does not recognize Western Sahara as part of Morocco. Furthermore, the occupation of Western Sahara represents a violation of the United Nations Charter prohibition of aggression and forced annexation.

Acting as a realist rather than normative power, the EU adopted an approach which contradicts some of its own policies applied in other contexts. This is particularly evident once that the fisheries agreement is analyzed in the frame of the recent (July 2013) EU guidelines barring loans (which constitute less than 10 percent of funds the EU allocates in Israel) to Israeli entities established, or that operate, in the territories captured in June 1967 (the “EU Guidelines”). The EU-Morocco deal applies not just to the area under internationally recognized Moroccan sovereignty, but to all areas under its jurisdiction, including the Moroccan-occupied Western Sahara. The EU Guidelines, on the other hand, apply to the West Bank, East Jerusalem, and the Golan Heights: all areas under Israeli occupation.

This inconsistent approach plays in the hands of some of the most active supporters of the occupation of the Palestinian Territories and represents a major blow for the EU’s international credibility. Eugene Kontorovich pointed out for example that the positions adopted by the EU in its negotiations with Israel over grants and product labeling are inconsistent with those it has taken at the same time in its dealings with Morocco and the ones applied in contexts such as Northern Cyrus, Tibet, or Abkazia/Ossetia. According to Kontorovich, the EU approach regarding Western Sahara “is consistent with all prior international law […] the EU is right about Western Sahara – which means it is wrong about Israel.” [italics added]

This post and its follow-up, which will be posted later today, argue that the EU is right about Israel and wrong about Western Sahara. Together, they discuss the EU approach to Israel-Palestine in a comparative way by first examining EU policy in Northern Cyprus and Western Sahara – two crucial cases often raised by critiques of EU policy towards Israel to highlight EU double-standards – before turning to the Israeli-Palestinian case itself in the second post.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

Daphne Eviatar on the Military Commission Train Wreck

by Kevin Jon Heller

Train wreck, fiasco, disaster, dumpster fire, bad joke, kangaroo court, show trial — take your pick, the description applies. Eviatar’s post at Just Security a while back is a must-read; here is but one particularly disturbing snippet:

Recent pre-trial hearings have revealed, for example, that the Guantanamo courtroom was equipped with microphones able to eavesdrop on privileged attorney-client communications; that the CIA was secretly monitoring the hearings and, unbeknownst to the judge, had the ability to censor the audio feed heard by observers; and that the meeting rooms where defense lawyers met their clients had been secretly wired with video and audio monitors, hidden in devices made to look like smoke detectors. In addition, all legal mail is screened by government security personnel, and documents previously deemed acceptable were later confiscated from the defendants’ prison cells without explanation; those documents included a detainee’s own hand-written notes or a photograph of the grand mosque in Mecca.

Seventy years ago, the United States bent over backwards to provide high-ranking Nazis with fair trials. These days, a fair trial for someone as unimportant as bin Laden’s driver is nothing but a dream. How far the mighty have fallen.

Judge Harhoff Digs Himself Deeper

by Kevin Jon Heller

The two-part series I mentioned in my previous post seems designed to rehabilitate Judge Harhoff’s image in the international-law community. Unfortunately, the articles, which draw heavily on an interview with the judge himself, simply underscore why it was necessary for the ICTY to remove him from the Seselj case. To begin with, consider what the judge says in the second article about how his infamous email, sent to 56 of his closest friends, was leaked to the press. One might speculate that one of those 56 friends might have leaked it. But not Judge Harhoff. He suspects the shadowy hand of foreign intelligence services (emphasis added):

For Mr. Harhoff, however, the rub was elsewhere. He asks: Who would have had an interest in leaking the email – and why leak it to a tabloid newspaper like B.T.?

”None of 56 recipients reads a newspaper like B.T. If one of them wanted to leak my email they would most likely have preferred more reputable newspapers such as Politiken or Information,” Mr. Harhoff inferred, “and at least they would have consulted me first.”

All 56 recipients have since given him personal guarantees they didn’t leak it. Mr. Harhoff also asked each of them whether they had forwarded his message to someone else, but not everyone responded to this question. So he believes that in all likelihood the mail was passed on to a third party unknown to him.

Who could it be?

”I am sure that all judges are having their email correspondence monitored,” Mr. Harhoff said (a suspicion shared by several other judges, as far as Information has been able to ascertain).

”It might make sense to assume that if a foreign intelligence service were able to read my email this would be a smart way to silence me by making it public”, he said.

Yes, foreign intelligence services — presumably those of Israel and the US, whom Judge Harhoff believes put pressure on President Meron to adopt the specific-direction requirement — are so worried about one judge at a tribunal with limited jurisdiction that they read his email and conspire to silence him. Makes perfect sense.

Judge Harhoff also has interesting things to say about his President Meron accusation:

During the interview, Mr. Harhoff seemed to be of two minds. On the one hand, he conceded that his contention of Mr. Meron’s possible motives was ”pure  speculation”. On the other hand, he left open the possibility that a likely explanation for Mr. Meron’s radical departure from a “more or less set practice” could be that he had somehow been influenced by outside military interests.

”In military establishments, some people might have been uncomfortable having to accept the evolving liberal jurisprudence at ICTY, since this could set a precedent for the International Criminal Court, ICC. And in the future that could make it very hard to be a general,” Mr. Harhoff said.


In the interview Mr. Harhoff mused: ”Why was it so important for Meron to ensure the acquittal of two Croatian officers who were accused of indiscriminate shelling of towns and civilian centers?”

He wondered: ”It has been pointed out by many others that the United States strongly supported the Croats with arms and intelligence. Gotovina was only able to defeat the Serbs militarily because of the American support. Would that in any way implicate the US Army? Probably not. But we don’t know what the accused might have revealed, if he had been convicted.”

So Judge Harhoff admits that it is “pure speculation” that President Meron manipulated his fellow judges into acquitting Perisic, Stanisic, and Simatovic.(And apparently Gotovina.) But he still believes — and, worse, says to a journalist after the email scandal — that President Meron is an American and Israeli puppet.

And we’re supposed to believe that the ICTY shouldn’t have removed Judge Harhoff from the Seselj case?

Seriously, Read the Damn Perisic Judgment

by Kevin Jon Heller

I get that many people don’t like the specific-direction requirement. I understand the anger that the Perisic, Stanisic, and Simatovic acquittals have generated. I’ve even explained why, though I think the Appeals Chamber was correct to reinvigorate the specific-direction requirement in Perisic, I would have preferred a different doctrinal mechanism.

But I am really, really tired of people — journalists, human-rights activists, scholars — who cannot be bothered to actually read the Perisic judgment. I’ve blogged about basic errors before. (See here and here.) But this two-part series (here and here) on Judge Harhoff takes the cake. Consider the following quotes from the articles (emphasis mine):

In the Perisic case, the Trial Chamber’s conviction was overturned by the Appeals Chamber by adding, without further explanation, the requirement that the accused general, in addition to his military assistance and his knowledge of the commission of the crimes, should also have given the direct perpetrators a “specific direction” to commit those crimes.

In his study Mr. Stewart showed that General Perisic was the first military commander to be acquitted according to the principle that it must be proven that a general gave his subordinates “specific direction” to commit a crime. [Note: Stewart understands the requirement. The journalist here doesn't understand Stewart.]

Charles Taylor was accused and convicted in trial court of ’aiding and abetting’ war crimes in Sierra Leone’s civil war. In its decision, the Appeals Chamber questioned whether at all, under the new standard, it would be possible to prove to whom the accused would actually have given his “specific direction” to commit the crimes.

In fact, as a judge in the Trial Chamber that had convicted general Perisic in the first instance, the South African strongly opposed the majority’s conviction of the accused and wrote a dissenting opinion in which he argued that the general should be acquitted, because the Prosecution had not proven that the general had given “specific direction” to the perpetrators.

In his dissenting opinion, Judge Moloto wrote that it was not enough that general Perisic had been aware of the crimes committed by the Bosnian Serbs in Bosnia, who received arms and intelligence from the Serbian army through general Perisic. It also had to be proven that the accused had in fact ordered the Bosnian forces allied with Serbia to commit the crimes in question.

In one of the cases, two high-ranking Croatian military officers were acquitted on a mere technicality. In the other case, the Appeals Chamber acquitted a Serbian general by overturning a standard previously used in Trial Chambers to convict senior officers for ”aiding and abetting” war crimes committed by perpetrators on the ground. All of a sudden, the Appeals Chamber required that a senior officer must have given “specific direction” to commit the crimes for which the officer stands accused.

Six quotes — each completely and utterly wrong. As I have pointed out before (many times…),Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. Ordering and aiding and abetting are completely different modes of participation. A perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of aiding and abetting’s actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the crime’s commission.

Again, I have no problem with criticizing the specific-direction requirement. But people need to criticize what the Appeals Chamber actually held in Perisic. If you can’t be bothered to read the judgment, you have no business writing about it.

Guest Post: Williams & Mansoor–Bangladesh’s War Crimes Tribunal Isn’t About Justice

by Paul Williams and Roushani Mansoor

[Dr. Paul R. Williams is the Rebecca I. Grazier Professor of Law and International Relations at American University and the co-founder and President of the Public International Law & Policy Group and Roushani Mansoor is a former Fulbright-Clinton Fellow who worked in Dhaka, Bangladesh as a Special Legal Assistant for the Ministry of Law, Justice, and Parliamentary Affairs (on issues unrelated to the Tribunal). She is currently a Law Fellow at the Public International Law & Policy Group.]

Cheers met the first verdict of the International Crimes Tribunal of Bangladesh, which sentenced Abul Kalam Azad to death in absentia.  Less than a month later, shouts of “ami, tumi, Bangalee, Bangalee” – meaning “me, you, Bengali, Bengali” – echoed in the streets of Dhaka in reply to another, less popular Tribunal verdict.  The Tribunal had handed down a life sentence to Abdul Qader Molla, a punishment many Bangladeshis felt did not match the severity of Qader Molla’s crimes.  The Tribunal, mandated to try alleged war criminals from the 1971 Liberation War, aimed to bring closure to Bangladesh’s bloody birth.  These moments were not just responses to justice served, but demonstrated a transformation in the Bangladeshi national identity – a transformation in which the Tribunal, as a mechanism of justice, is playing a crucial part.

The Liberation War pitted Bengali Freedom Fighters against the Pakistani Army and local collaborators from anti-liberation groups.  These collaborators aided the Pakistani Army, executing attacks and massacring villagers.  The nine-month war secured independence for Bangladesh, but at a huge cost.  Estimates range from 300,000 to 3,000,000 killed often in gruesome ways; countless more were tortured.  Over 200,000 women were subject to rape, and as many as 10 million fled their homes towards India to escape the violence.  Over forty years later, the Tribunal operates as a domestic exercise of justice aimed at trying atrocities committed during the war.  It strives to erase the attitude of impunity and deliver justice – however delayed – to victims and victims’ families still healing from horrific conflict.

The Liberation War fought for the independence of Bangladesh, and a brand new Bangladeshi national identity was born out of this conflict, largely grounded in this struggle.  The generations who lived through the Liberation War had to fight and sacrifice for their national identity but they earned the right to call themselves Bangladeshi.  Generations born after the war are certain they are Bangladeshi – it is their birthright.  These generations, however, are struggling with the meaning of being Bangladeshi.  They are undergoing their own fight for a national identity, one that is predominately based on a war they did not witness.

The one war-related relic these generations have to hold onto is the Tribunal.  As a legacy of that liberation struggle, the Tribunal has been intrinsically intertwined with the Bangladeshi national identity.  Demand for the creation of the Tribunal began immediately after the Liberation War, and legislation creating the Tribunal was passed in 1973.  Subsequent natural disasters, political assassinations, and military coups in Bangladesh prevented the government from actually constituting the Tribunal.  However, popular support for the Tribunal did not waver.  The hope for a Tribunal was given new life during the 2008 elections where the Awami League campaigned on the promise that if elected, it would constitute the Tribunal during its term.  Winning an absolute majority in Parliament, Prime Minister Sheikh Hasina vowed to constitute the Tribunal and bring closure to the bloody birth of Bangladesh after over 40 years of waiting. (more…)

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. (more…)

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

by Christopher L. Kutz

[Christopher L. Kutz is a Professor of Law at University of California, Berkeley, and is the Director of the Kadish Center for Morality, Law and Public Affairs]

Janina Dill has written a smart and provocative paper, providing a powerful argument against what one might call “naive moralism” in the ethics of war.  In this, she is responding to a body of recent and influential work, of which American philosopher Jeff McMahan’s writing forms the core, which has offered an individual-centered moral analysis of the rules of war, meant to supplant the state-centered view of classical Just War Theory (JWT).  Against some of the natural conclusions one might draw from a moralized theory, Dill argues that the essentially collective nature of the ethics of war should be preserved, on epistemic grounds.  In particular, the collective liability of combatants, and immunity of civilians, is best explained by the difficulty of refining a moral analysis in many plausible cases of conflict.

According to classical JWT, the ius ad bellum and the ius in bello are strictly separated, in the sense that the legality or legitimacy of the war as a whole rides independently of the liability of the individual participants in the war.  On this view, whether or not a belligerent state (and its leaders) are fighting a legal or illegal war, soldiers of those states are liable to be targeted just in virtue of their membership in the armed forces; by contrast, civilian non-combatants are immune from deliberate targeting whatever political support they have manifested for even an aggressive war.  Thus, in World War II, British and Wehrmacht soldiers stood on the same legal footing (attackable, and only liable for individual war crimes), as do pacifist British citizens and Nazi-supporting German civilians (immune from attack).  This collective, status-based approach to targetability is notably different from the individualized assessment of liability to attack that characterizes the criminal law, in which individuals are only targetable when they present particular threats to the lives or vital interests of others; and the permission to use lethal force is only granted to those defending vital interests (of themselves or others), and often not when that defense is the result of the defendant’s own wrongdoing (p. 8).

In a number of recent books and papers, Jeff McMahan has argued that there are no plausible direct moral foundations for JWT, because on any compelling moral analysis — that is, any analysis sufficiently compelling to make claims about liability to lethal attack plausible — liability must be determined by individual culpability.  And when we take individual culpability into account, it is hard to avoid the conclusion that many individual soldiers — namely those permissibly defending themselves and others — are not so liable, while many non-combatants are.  McMahan himself avoids any direct action-guiding conclusion from his analysis, because of the prospect that absent clear rules of collective distinction, too much horror will result from an attempt by combatants to make the relevant distinctions.

Dill accepts the McMahanian moral analysis, but she rejects the revisionary conclusion, that we should seek to tune our doctrines of war to more individualistic determinations.  Instead, she looks to alternative moral foundations for the collective character of war. To my mind, the most interesting aspect of a very interesting and perceptive article is her working through these alternatives.  She considers first the idea that war might nonetheless be given a consequentialist justification: that the gross principle of distinction, if applied in good faith by just and unjust belligerent nations alike, would be a “lesser evil” resulting in net fewer unjustified deaths.  But as she argues, there is no reason to think the material outcomes of current JWT do a better job than any alternative in minimizing unjustified deaths, since military victory is a consequence of material rather than moral factors.  More importantly, an individual moral analysis would result in the conclusion that aggressor soldiers should simply “keep still,” and cease presenting any threat to others.  Whatever one might say on behalf of JWT, one cannot think it approximates an outcome whose ideal case is the sudden pacifism of all of one side’s combatants, plus all of the others who are no longer at risk.

The conclusion she draws is subtle.  Dill treats as central the “epistemically cloaked” nature of the choices presented by war, where the fog of war makes individual liability determinations implausible, and the tendency of even aggressors fighting (wrongly) in good-faith belief of permissibility makes war inevitable.  In such cases, when nations turn to war, IHL properly guides actors towards morally superior outcomes, even if it does not make those outcomes defensible in absolute terms. As she says, if something is indefensible, it cannot be made defensible by epistemic considerations.  But the benefits of a rule-of-law approach to war, with over- and under-inclusive bright lines, may itself be morally valuable, in serving to constrain the overall enterprise while recognizing its systematic, i.e. Collective, character.  This is, essentially, a Razian analysis of the value of using non-moral norms to coordinate a complex multi-personal enterprise, rather than the sort of full-bore collectivist analysis that some of us have gestured at.  Regular war is less evil than irregular war, but this is a distinction to tolerate, not to celebrate.

I am in great sympathy with Dill’s discussion and conclusion, but might raise a couple of questions.  (more…)