A Response to Gabriella Blum by Kevin Jon Heller

[Kevin Jon Heller, a Senior Lecturer at the University of Melbourne Law School, responds to Gabriella Blum, On a Differential Law of War]*

Blum’s normative analysis of the desirability of common-but-differential responsibilities in IHL is exceptionally powerful, and I agree with most of her conclusions. I have written a formal response to her essay that will be published online by HILJ; here I want to briefly mention the aspect of her essay that I find most intriguing: namely, its implications for the distinction – fundamental to IHL – between the jus ad bellum and the jus in bello. Blum claims that, “in remaining loyal to the skepticism of IHL with regard to dependence on jus ad bellum,” she “ignore[s] the question of whether the parties are conducting a just or unjust war.” Her essay however, indicates that her loyalties are divided at best. She openly acknowledges, for example, that there “may not be valid reasons to maintain that distinction” when considering the corrective-justice rationale for CDRs, because identifying the “causes of suffering” sufficient to trigger the rationale “may be inextricable from the causes of the war and its justification.” Similarly, although the frequency with which states go to war is a jus ad bellum consideration, Blum accepts that incorporating CDRs into IHL will have a powerful effect on the utilitarian calculus that states use to determine whether they will use armed force, because “[i]f CDRs raise the bar for stronger parties, these states may calculate the costs of war differently and exercise further caution against the use of military force to begin with,” while “the greater constraints on stronger parties might encourage weaker parties, believing they stood a greater chance of success, to initiate conflicts, thereby increasing the overall incidence of violence.”

Blum’s failure to live up to her claim to keep the jus ad bellum and jus in bello separate is, I think, a feature not a bug of her essay. Indeed, her analysis of the normative case for CDRs provides a compelling indictment of that distinction, because she demonstrates – intentionally or not! – that it is impossible to normatively assess the obligations of the parties to an armed conflict without taking into account the comparative justness of their causes. Consider the distributive-justice rationale for CDRs. Blum says that “[i]n transposing distributive justice arguments onto war, the question arises whether the general moral obligations that are owed by one society to another endure when the two societies are at war.” How can that question be answered without considering whether one party to the conflict is an aggressor and one is simply defending itself? As far as I can tell, there is no coherent normative rationale for assuming that the mere act of State A using military force against State B – “mere” in the sense that we do not care why State A is using that force – frees State A of any and all moral obligations toward State B. Blum appears to agree with that conclusion. But if moral obligations survive the use of force, it seems absurd to determine the content of the two states’ IHL obligations without taking into account the fact that State A’s use of force, unlike State B’s, was inconsistent with the jus ad bellum.

Indeed, Blum’s own analysis indicates why that’s the case. When discussing the relationship between democracy and “innocence,” for example, she argues that “[p]opular support – whether political, financial, or moral – of the government and armed forces may be enough in such cases to exemplify enmity and, by way of analogy from self-defense doctrines, would diminish any moral obligation to positively assist the civilian-attacker.”There’s the jus ad bellum again – and rightfully so. Why would popular support for a government that is acting in self-defense diminish the obligations of the invading state to provide the invaded state’s civilian population with aid? Similarly, although Blum is no doubt correct that “[a]ny assistance during wartime allows the enemy power to free up resources for the war effort,” do we not care whether those additional resources will be used to resist aggression or to further it? Don’t we want to limit the military power of aggressors while increasing the military power of the wrongfully invaded?

To be sure, none of these jus ad bellum considerations would justify adopting a CDR that held a wrongly-attacked state to a lower standard of humanitarian protection than the state that wrongly attacked it. After all, the rationale for not requiring reciprocity in IHL is precisely that ordinary civilians and soldiers should not pay the price for their government’s misconduct. But Blum’s essay demonstrates – brilliantly, I think – that permitting jus ad bellum considerations to affect the interpretation of jus in bello obligations does not have to result in the underprotection of civilians and soldiers. There is no reason, for example, why CDRs could not be imposed on a strong aggressive state that would hold it to a higher standard of humanitarian protection than the state resisting its aggression, whether by 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. Such CDRs would help deter future wrongful attacks and maximize humanitarian welfare in invaded states without penalizing the aggressive state’s civilians and combatants for their government’s willingness to violate the jus ad bellum.

Blum has written an exceptional article, one that I predict will be standard reading for years to come. It’s an honor to respond to it.

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* Ed. Note: The Harvard International Law Journal Online will be publishing a longer version of this post as a Feature article later this semester. If you are interested in learning more, please check back on our website.