Author: Gabriella Blum

by Gabriella Blum

The issues Professor Waxman raises about the relationship between international humanitarian law (IHL) and international criminal law (ICL) are of the highest importance to anyone interested in the regulation of warfare, or, indeed, in international regulation more generally. Certainly, the division of labor between IHL and ICL is not an inevitable one. To some degree, it is the consequence of the historical evolution of international law. To some other degree, it reflects the necessary adaptations of state-based obligations turned into individual-oriented duties. Explanations of its origins notwithstanding, the existence of these two, semi-distinct regimes results in some unintended consequences which are often overlooked (and Professor Waxman rightly refers to Ken Anderson’s recent paper as an important exception to this omission).

For example, while proponents of ICL hope that criminal prosecutions will deter IHL violations, there is a less obvious corollary: fear of prosecution can also deter military decision-makers from ratcheting up humanitarian protections, on the grounds that over the long term, self-assumed standards might come to be invoked against them as legally binding requirements, potentially subject to criminal enforcement. I recently argued [http://ssrn.com/abstract=1457434] that IHL’s existing, status-based targeting doctrines – which allow for the indiscriminate killing of all enemy combatants – should be revised to spare non-threatening soldier from intentional attack.  When presenting my argument, I have often encountered the concern that self-imposed limitations will turn quickly into criminally enforceable obligations, consequently leading to a resistance to adopt more restrictive targeting schemes.  The looming prospect of international criminal prosecution thus has a chilling effect on efforts to strengthen the underlying substantive norms of IHL.

All of this is to say, in essence, that I fully agree with Prof. Waxman’s emphasis on the question of where we should focus our attention – the substantive, state-centered norms of IHL or the individual criminal liability framework of ICL – when it comes to amending the rules of lawful warfare.  I also fully agree that the humanitarian necessity proposal is but one example of this question.

In the case of the humanitarian necessity, specifically, my own view is that it fits better as a criminal defense under ICL than as an amendment to substantive IHL norms. My intuition follows the domestic criminal law framework of recognizing some defenses to criminal liability, which may apply to all or some specific offenses, but are kept separately from the definition of these offenses. This separation operates to safeguard the integrity of the law, leaving room for forgiveness in the particular exceptional instance in which an otherwise-condemnable act may be warranted. Of course, from a realist perspective, the ex post necessity defense functions much like an ex ante authorization.

I was especially intrigued by Professor Waxman’s question regarding contributory fault.  I am not entirely sure that contributory fault makes a difference with regard to lesser evil calculations per se (since choosing the more humanitarian-protective course of action should seem preferable regardless of whether or not the enemy has contributed to the necessity situation). Nonetheless, I believe that contributory fault by the enemy might work to assuage our concerns about the genuine existence of a necessity situation, which we might be skeptical of otherwise. More importantly, Prof. Waxman’s question points to a much broader dilemma regarding reciprocity in the laws of war.  Over time, the concept of reciprocity has been eliminated from IHL as an organizing principle of the system; reprisals are, by and large, no longer permissible, regardless of the enemy’s own breaches.  If we wanted to re-establish the principle of reciprocity, whether in general or in particular instances, there could be two apparent routes for it: one would be to reincorporate it directly into IHL; another would be to recognize reciprocity through international criminal law, for instance, through considering prior enemy breaches as a mitigating factor or full defense.  Which approach is preferable?

I have maintained that the notion of humanitarian necessity is better accommodated via ICL. Here, in contrast, I think IHL is the preferable forum. For one thing, reprisals were regulated (and implicitly, partially permitted) under IHL to begin with. More importantly, however, reprisals are not an exceptional breach in exceptional circumstances driven by a utilitarian calculation of humanitarian welfare. Instead, in establishing the principle of reciprocity, they are designed to set the conditions under which compliance with IHL norms should be expected at all. Another reason has to do with the decision-making authority. Even before they were eliminated in the Additional Protocols of 1977, and as maintained by those countries who rejected their elimination (e.g., the U.S. and the U.K.), reprisals could be authorized only by the highest political authorities, not by any individual soldier or commander. This condition was intended to ensure that the decision on noncompliance was carefully thought through and was ultimately adopted by the responsible political authorities of the state. A humanitarian necessity defense, conversely, may have to be invoked by an individual actor, facing an immediate choice-of-evils situation, leaving no time or room for high political consultations.

I am not entirely sure my intuitions here are correct, and in any case, even if reciprocity is reincorporated into IHL, ICL would have to be amended, too, to reflect this development. None of this should detract, however, from understanding Prof. Waxman’s hypothetical about contributory fault and reciprocity as further demonstration of his fundamentally important question about the relationship between IHL and ICL more broadly.

by Gabriella Blum

[We are pleased to introduce the second part of the YJIL Online Symposium discussion of articles from Vol. 35-1. Today, we are delighted to host a discussion of Gabriella Blum’s recent article with a comment by Professor Matthew Waxman later today. Professor Blum is an Assistant Professor of Law at Harvard Law School.] Why is it that international humanitarian law (IHL) allows no justification for its breach even when such conduct would actually produce less humanitarian harm than if following the law? Why would a defendant who violated IHL in order to save lives be convicted of war crimes? These are the questions I seek to address in my recent Article, “The Laws of War and the ‘Lesser Evil’.”

My interest in this puzzle was sparked by the Israeli Supreme Court’s decision to strike down the “Early Warning Procedure” employed by the Israel Defense Forces (IDF) in the West Bank. Under the Procedure, the IDF would approach a neighbor of a suspected Palestinian militant and request the neighbor to urge the suspect to surrender quietly to the security forces. If the suspect refused, the neighbor would then attempt to clear the residence from its other inhabitants. The stated goal of the Procedure was to reduce potential casualties, both among IDF and local civilians, in case the arrest turned violent. Despite some evidence that the Procedure was effective in reducing civilian casualties, the Court ruled that it violated strict prohibitions on the reliance on local civilians by an Occupying Power for security operations, and was therefore unlawful.

The prohibition cited by the Israeli court is but one instance of IHL’s absolutist stance. Others include the prohibitions on mercy killings, the assassination of rogue leaders, the use of non-lethal chemical weapons, or the intentional killing of any civilian – even where such actions are taken with the attempt to minimize humanitarian harm. The claim that certain prohibited acts might actually lead to the saving of innocent lives, even many thousands of lives, is categorically rejected by the laws of war. Put bluntly, in many cases IHL demands an excessive sacrifice of lives for preserving the integrity of the law.

Why this should be so is hardly self-evident. Striking an uneasy balance between the inevitable existence of war and the concern for those affected by it, IHL rules already take into account considerations of military necessity. There is no puzzle, therefore, as to why military necessity could not be invoked as a justification for violating the law. But if IHL’s stated goal is to promote humanitarian welfare as much as possible within the constraints of war, it is not at all clear why IHL should also reject arguments of humanitarian necessity – that is, measures that are intended to minimize suffering – as a justification for breaking the law.

The developments of the past decade or so in the field of international criminal law have made this question particularly pressing. For a particular individual facing a criminal trial, the recognition or rejection of a humanitarian necessity claim could make the difference between (legal) innocence and guilt. Ironically, the current Statute of the International Criminal Court (ICC) does recognize a form of military necessity exemption from liability, but not any form of a humanitarian necessity.

To demonstrate what might be at stake in recognizing or excluding a humanitarian necessity justification, I rely on three real-life case studies. Each involves a claim that a state’s armed forces have violated the laws of war in order to avoid greater humanitarian suffering. The first is the “Early Warning Procedure,” described above. The second is the paradigmatic case of torturing an individual to retrieve information that would avert an imminent attack. The third case is the atomic bombings of Hiroshima and Nagasaki at the end of World War II, which the then Secretary of War Henry Stimson described as “deliberate, premeditated destruction [which] was our least abhorrent choice.” I use the atomic bombings as an extreme metonymy for all deliberate infliction of civilian casualties in the effort to spare a greater number of casualties.

I explore possible reasons for why IHL would nonetheless assume an absolutist stance. I begin with the obvious analogy of the necessity defense in domestic criminal law, often termed a choice-of-evil defense. The domestic paradigm proves to be a useful starting point, but an imperfect one. In some ways, it is too restrictive in what it justifies. Its narrow scope is premised on a deep suspicion of the ability of individuals to make lesser-evil choices and on the very low probability that individuals would actually encounter choice-of-evils situations, especially such that involve life-life tradeoffs. In war, decisions are made (or adopted post-facto) by governments, not individuals, and all of war is a choice of evils, including life-life tradeoffs.

In some ways, however, the necessity defense in criminal law is too permissive. Although it assumes that individuals would normally prefer their own welfare to that of others, it does not assume that individuals have an innate instinct to harm others. It thus makes no distinctions between violations that are committed by an actor for her own sake and those committed to guard others’ interests. Again, war offers a very different context. In war, the welfare of one party is often perceived as enhanced by the harm to the enemy. In such a (perceived) zero-sum game, we must be especially suspicious about the motivations behind violations of the law.

Since the analogy to the domestic law is inconclusive, I turn to three first-order possible explanations for why IHL would maintain an absolutist stance. The first is based on deontological moral reasoning. The second follows from traditional rule-consequentialist arguments, including concerns about uncertainty, slippery slopes, and spillover effects. The third focuses on institutional considerations, including the process of lawmaking, adjudication, and enforcement of IHL rules. I argue that none of these accounts can fully explain IHL’s wholesale exclusion of humanitarian necessity as a justification for violating its first-order rules. In particular, they cannot explain the rejection of a choice-of-evils paradigm in IHL, at the same time that this paradigm is accepted (in one form or another) in domestic law.

The article then proceeds to develop a blueprint for defining a humanitarian justification for (prima facie) violations of the laws of war. The case studies that are described earlier make vivid the challenge of tempering the laws of war with a humanitarian justification. The entire project of IHL is premised on the idea that some cruelty must be curbed, even at the expense of prolonging lawful violence and suffering. That project would collapse if a state could claim to reduce suffering by carpet bombing the enemy’s capital just to finish the war more quickly—and only in part because a long history of much cruelty refutes the correlation between superfluous ruthlessness and speedy victory. The effort here, instead, is to find a place for a humanitarian necessity justification that would allow parties in conflict to engage in welfare-increasing actions without collapsing the entire project of IHL.

The blueprint definition I ultimately suggest is designed to work in a way that would allow us to distinguish the “right” case from all the wrong ones. It is as follows:

A person shall not be criminally responsible if, at the time of that person’s conduct: . . . The conduct which is alleged to constitute a crime was designed to minimize harm to individuals other than the defendant’s compatriots, the person could reasonably expect that his action would be effective as the direct cause of minimizing the harm, and there were no less harmful alternatives under the circumstances to produce a similar humanitarian outcome.

Three elements of this definition are worth emphasizing (and all elements are open to further debate and examination). The first is that to benefit from a humanitarian necessity justification, the actor must show that the violation of the law was designed to benefit not – or no only – his own fellow soldiers or civilians, but enemy nationals. The rationale behind this condition is that IHL was designed to curb the aggressive tendencies of parties in war and offer protections to the most vulnerable. It is therefore preoccupied primarily with how parties treat their enemies, not how they treat their own people. For the humanitarian necessity justification to be compatible with the project of IHL, it must follow a similar logic. Consequently, the paradigmatic case of interrogational torture, most commonly used to avert an attack on one’s own people, cannot be justified on the basis of a humanitarian necessity.

A second, straightforward element of the justification is that the actor used the least egregious means possible in choosing between two evils. Following this condition, whatever one’s judgment is of the atomic bombing of Hiroshima, the bombing of Nagasaki – just three days after Hiroshima and without testing alternative means of securing Japanese surrender – could not be justified under a humanitarian necessity.

A third crucial element is causation: The justification depends on a direct causal relation between the breach of law and the aversion of harm. This condition follows from the internal logic of IHL, which does not allow for unbounded cruelty in the name of bringing wars closer to end.

My argument is made in full recognition that most violations of IHL are not motivated by the wish to cause less humanitarian harm. Indeed, if human nature were prone to this kind of calculation, much of IHL would be redundant. I also recognize the possible dangers of malevolent exploitation that any exemption from liability for war crimes might harbor. Nonetheless, the fact remains that some violations of the laws of war could actually cause less suffering overall. Exceptional as these violations may be, if the absolutist stance of IHL inhibits states from committing them, then this absolutist stance does a disservice to the goals of IHL.