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Law and War
By Austin Sarat, LAWRENCE DOUGLAS, MARTHA MERRILL UMPHREY Stanford University Press
Copyright © 2014 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8047-8742-0
CHAPTER 1
Limits of Law: Promoting Humanity in Armed Conflict
SARAH SEWALL
Introduction
International Humanitarian Law (IHL) seeks to balance the principles of humanity and necessity in the conduct of war. Many states and nongovernmental organizations aim to promote civilian protection in war by "strengthening" the principle of humanity in positive law. This group of actors, which I will call the progressive community, devotes itself to refining interpretations of existing laws and creating new law. However, this focus on raising the standards of positive law may not be the most effective route toward enhancing civilian protection.
Placing higher expectations on the international legal regime could even be counterproductive, because IHL is already becoming less relevant to armed conflict in the twenty-first century. There are three principal reasons why this is so. First, some powerful states that employ force frequently do not share the progressive view of the law. The United States is the most important global actor that clings to a "traditionalist" approach. In practice, the law is rarely a constraint on U.S. actions (although this is not necessarily problematic from the perspective of reducing civilian casualties). Second, many states and nonstate actors that use violence do not follow, and indeed openly flout, the most fundamental IHL principles. While this is not a new phenomenon, it is becoming more significant as states' monopoly of violence erodes and new technologies enable nonstate actors to threaten harm of great magnitude. Third, emerging powers—especially China—lack clear policies toward IHL even as their military roles appear poised to expand.
This essay begins by outlining the challenges of noncompliance in order to show that the edifice of IHL is not as robust in practice as progressives seem to assume. Challenges to IHL suggest the need to shore up compliance with the regime's fundamental rules, rather than ratcheting up the standards of compliance.
The chapter's focus, though, is explaining the gap between the U.S. traditionalist view of the law and that of the progressives. This gap is not well understood by Americans, who are routinely reassured that the U.S. military abides by the laws of war and then perplexed as outside critics dispute U.S. claims. I discuss the two general perspectives on the law and illustrate their implications through two examples: defining military objectives and taking precautions to protect civilians. In both cases, the United States rejects progressive standards yet routinely takes additional measures to protect civilians for reasons that are independent of the law. It is the norm of minimizing civilian casualties, however, not the law, that prompts these additional measures. Indeed, normative argument divorced from law offers progressives an alternative means of pushing advanced military powers to enhance civilian protections.
Yet the most fundamental IHL challenge remains enforcement of the most basic protections for civilians. Even the United States is uneven in enforcement of the basic rules of war. The history of American prosecution of service members for IHL violations illustrates this vexing challenge. Progressives should place less emphasis upon raising legal requirements for protecting civilians than upon enforcing minimal standards.
Finally, I explain why a continued progressive push to tighten existing standards of IHL in the name of protecting civilians has several downsides, principally widening the gap between the demands of law and global compliance. This increases the practical costs of compliance for adherents, and may reduce their ranks, including rising powers whose support will be crucial for the future of IHL. More capable military actors such as the United States and Israel, which already question the evolving direction of the law, may further distance themselves from IHL's development. The net result may well be undermining whatever salience IHL retains for armed conflict in the twenty-first century.
I conclude that the progressive community should focus on practical impact—promoting compliance with IHL and punishment for those who violate it—rather than pursuing ever more agreements on paper.
Challenges to IHL
Several developments in international politics cast doubt on the continued salience of the existing rules governing the use of force. First, states—the building blocks of IHL consent and compliance—are eroding in relevance and span of control. But states have been the bulwark of the law. Insurgents and terrorists have remained outside the law from its earliest days, as the debate about Additional Protocol 1 reminds us.
The demise of states suggests that the number of noncompliant actors will grow. Insurgents and illegal groups perceive the law as serving the interests of the strong and see little additional cost for adopting whatever violent means they deem necessary. Armed groups such as the Taliban in Afghanistan and M23 in the Congo routinely violate multiple IHL principles, most notably by purposefully targeting civilians during their military activities. Rebellious forces conceivably could gain control of states and then come to view IHL in a different light. Yet many groups using force today—from drug cartels to Al Qaeda—care little about becoming a state, and care even less about the rules that govern relations among states. Thus the demise of states, and the expanding, globally linked actors that threaten states, pose challenges for the future of the law of armed conflict.
Second, the compliance of states is also uneven. Some states publicly reject the law, while others quarrel about whether their actions comply with its standards. The former is a fundamental challenge to the regime itself. Some states, especially those already isolated from the international community, openly flout the underlying tenets of LOAC, often for the same reason that guerrillas do—they are relatively weak militarily and expect little benefit or legitimacy from compliance.
Asymmetric tactics—which generally entail IHL violations—are often adopted by weaker parties, including states. There is not much to be done about the differences in military power between the United States and some of the so-called rogue states. Yet in 1991 Saddam Hussein did not resort to widespread IHL violations, while Iraqi forces in 2003 flagrantly did so. The armed forces of Serbia in 1999 under Slobodan Milosevic also violated IHL. This dynamic weakens IHL's overall relevance.
Actors' responses to allegations of legal violations provide another barometer of IHL's power. When belligerents do not bother even to justify their actions pursuant to IHL, the law is revealed as less relevant. For example, Sri Lanka's armed forces killed tens of thousands of civilians during their final assault on the Liberation Tigers of Tamil Eelam (LTTE) insurgents. The UN Secretary General's Panel of Experts on Sri Lanka found credible allegations of a "wide range of serious violations of international humanitarian law" by both sides. The Sri Lankan government dismissed such charges as biased rather than seeking to justify its actions as consistent with IHL.
Widespread violations of IHL by state and nonstate actors undoubtedly help to explain why civilians became significantly more vulnerable in war than combatants during the twentieth century. If a goal of IHL in the twentieth century was to make war more tolerable, then from the civilian perspective, it is clearly failing.
A third challenge for the IHL regime is the high degree of uncertainty regarding how changing international power dynamics and technologies may affect IHL. The Western powers that so heavily shaped and legitimized the law are gradually waning in their relative influence and power as the economies and militaries of other states expand. The attitudes of emerging powers are crucial factors that will help determine the future of IHL.
China's views, in particular, are worrisomely opaque. Some commentators have suggested that the Chinese government regards armed conflict as "unrestricted warfare," freed of constraints of IHL. The paucity of official Chinese comment on this point, especially regarding the use of new technology, creates great uncertainty and can lead to worst-case assumptions by those who warily regard Chinese power. The associate risk is a regional or international race-to-the-bottom mentality by those who fear violations by key actors. As international power realigns, it is not clear that the rising powers will share the underlying human rights commitments or perceptions of self-interest that provide incentives to continue IHL compliance. Shifts in global material power create additional questions about whether IHL will remain relevant in practice.
Uncertainty is compounded when new technologies create—or are perceived to create—gaps in the law. At the moment, the international community is seeking to understand how cyber capabilities relate to existing IHL, with some suggesting that they fall easily under its rubric, while others assert the need for new rules to regulate this new type of "force."
A final major stress on IHL is the growing price of upholding the law in the face of adversary noncompliance. The demise of reciprocity is doubly threatening for the legal regime. It's not simply that the many actors do not uphold the law. The second-order effect is that noncompliance increases costs for those attempting to uphold the law. This is no longer a localized risk. The potential diffusion of weapons of mass destruction to nonstate actors increases the threat posed by noncompliant actors, be they terrorists, freedom fighters, or internationally recognized nations. New methods of conflict, such as cyber warfare, further increase the likelihood that IHL-rejecting states or armed groups may be able to place law-supporting states at risk. This is a fundamental change in the power equation of law compliance, and it does not bode well for the law's future.
Overall, then, IHL is being undermined by greater noncompliance and by the rising costs that states face in adhering to the law while other parties do not. Given these challenges, the progressives' focus on tightening civilian protection requirements in the law appears misplaced. It not only fails to address noncompliance; it also fuels divisions among the United States and other important powers about the law's requirements.
IHL
Origins and Balance
As philosopher Michael Walzer reminds us, the law's purpose is not to abolish war, or to make it impossible to fight. Even as war remains hell, the law of war seeks to balance military necessity and humanity. Within the law, several broad principles uneasily coexist. These include "military necessity" (only force that is necessary can be used), "distinction" (between combatants and noncombatants), and "proportionality" (that harm to noncombatants is not excessive in relation to its military benefits).
The law's protections for noncombatants were not conceived by humanitarians and presented to the states to codify as black letter law. Rather, the law's civilian protections grew out of the customary practices of states. These practices were grounded in religious and moral ideals, as well as assumptions about self-interest and utility. But the positive law that emerged in the nineteenth and twentieth centuries codified behavioral rules to which states had already committed themselves in practice.
Thus, the law's logic privileged the successful conduct of war—it could not prioritize other goals and remain a code for war (rather than peace). The law also had to reflect the possible. Law that could not be followed within the context of war would lose its meaning and import altogether. The law reflected consensus among its adherents—which remains vital for international law in particular, as there is as yet no centralized enforcement power for global rules. Law that parties would rarely follow would have limited relevance. The progressive effort to prioritize the principle of humanity challenges each of the above tenets.
In balancing necessity and humanity, IHL forbids certain actions, such as the intentional targeting of civilians. Yet IHL provides significant scope for unintended effects. It privileges the war fighter's intent and often requires weighing the protection it accords noncombatants against other values or goals (primarily the ability to wage war effectively). To put it crassly: civilians may be unintentionally but predictably killed under certain circumstances, a concept the U.S. military calls "collateral damage." Despite the principle of distinction, IHL in practice provides "qualified"—not absolute—protection for noncombatants.
The progressive community's approach continues to alter the law's balance, pushing it further toward humanity. What has been called the "philosophy of IHL" fundamentally seeks to expand civilian protection within the law. Humanitarians consider the law's contextual and subjective standards and its balancing of necessity and humanity to be weaknesses because they dilute civilian protections. Yet the law's balance and flexibility have proved useful as it seeks to engage a larger and more diverse group of belligerents than existed in the nineteenth century as the law first began to take shape. The law's flexibility and balance have also allowed the law to sustain its relevance despite significant noncompliance and stunning material changes.
There are tradeoffs between promoting higher or "tighter" standards and ensuring the compliance with more basic standards. If compliance with current standards were high, if consensus about the compatibility of greater humanity with victory were strong, there would be a wider margin within which to continue advancing civilian protection in the law. But a host of reasons, many noted above, render the law more fragile and therefore caution against continuing to raise its demands.
Traditionalist and Progressive Views
In order to show how progressive reinterpretation of the law creates a higher standard—and entails costs—this section of the essay explains the orientation of the progressive view and the "traditionalist" view held by the United States. Both progressives and traditionalists agree on the law's underlying principles. But this masks an underlying struggle about the proper balance between military necessity and humanity and the extent of noncombatant protections specified in the law.
The difference between agreeing in principle upon the importance of IHL principles (for example, military necessity, civilian protection, the proportionate use of force), and disputing what these principles require in practice evokes what Frank Michelman has called "the chimera of universally accepted canons." Within the United States, he notes, there is broad agreement on such principles as: no cruel and unusual punishment; no groundless or arbitrary deprivation of life or liberty; and no denial of equal protection of the laws. Competing views of IHL suggest a parallel dichotomy. The law's fundamental canons include the principles of military necessity, the distinction between civilians and combatants, and the proportional use of force. But these IHL canons hide interpretive disputes that reflect first-order divisions. The divisions are ethical, and they are also cultural, organizational, and historical.
Traditionalist View
The United States remains the leading global actor that routinely uses force while it trumpets the centrality of law to its conduct of military operations. Its actions and positions therefore bear centrally on the legitimacy of the law.
The United States has a minimalist, conservative interpretation of IHL that heavily relies upon state practice. This is not inconsistent with respect for the law. Nor is this characterization a criticism of U.S. military operations, because U.S. technical abilities and operational design have pioneered new ways to limit civilian harm. The United States emphasizes its commitment to reducing civilian harm in war, although it generally does not see its actions as reflecting a legal requirement. The United States sees a significant gap between the "floor" of legal requirements and a higher "norm" of minimizing civilian casualties.
U.S. views toward law reflect the peculiarities of the American way of war and American views toward international law generally. Broader national, political, and cultural influences also shape U.S. attitudes. The U.S. has sought to retain flexibility in the law, and balks at new restrictions on weapons or interpretations of law that further limit the role of a commander's intent and his subjective judgment.
(Continues...)
Excerpted from Law and War by Austin Sarat, LAWRENCE DOUGLAS, MARTHA MERRILL UMPHREY. Copyright © 2014 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Stanford University Press.
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