by Sean Watts
Thank you to Professor Corn for his exceptionally thoughtful response to the article. His observations illustrate vividly, and persuasively, the apparent choices undergirding the traditional approach my Article critiques. I’ll reply briefly to some of his comments and conclude by highlighting what I perceive to be larger issues in the law of war that our dialogue might provoke.
Professor Corn casts application of the traditional four combatant criteria to CNA participants as a presumption, bringing with it the attendant benefits of clarity and predictability. His Miranda analogy suggests that law of war application in the context of CNA reflects a weighing of costs and benefits parallel to that produced by decades of experience in U.S. criminal procedure. Reflection on his parallel rekindled two thoughts that both inspired and informed the article. First, my research did not reveal evidence of the type of state deliberation, debate, or dialogue that inspired adoption of the Miranda presumption. As an international lawyer with strong sovereigntist sympathies, I was especially eager to find such evidence. It quickly became apparent, however, that application of the combatant criteria to CNA merely represents a reflexive or rote application of the only existing positive legal framework. It is in this regard that the extant approach might actually evince a doubly empty formalism—one of both procedure and substance, although we appear to disagree on the latter.
Second, and on the point of the latter, while I think he’s correct to highlight and defend the benefits of legal presumptions, I wonder whether the traditional combatant qualification presumption adequately accounts for its costs. The Article concludes with what I regard to be one of the law of war’s great cautionary tales: Admiral Doenitz’s conviction at Nuremberg for violating war rules universally discredited and regarded as out-of-touch. The Doenitz conviction illustrates the laws of war’s acute susceptibility to irrelevance as well as the extent to which it relies upon its end users’ trust that it accounts for the realities they face in combat. As Professor Corn notes, I do not advocate abandoning the traditional combatant criteria wholesale. However, the criteria have enjoyed their relevance, longevity, and perhaps their presumptive application, precisely because they have, for so long, actually reflected both States’ will and accounted for battlefield realities. My sense is that, in CNA, the criteria cannot operate long without provoking harmful distrust of the law’s efficacy. The Article set out to highlight what I perceived to be a threatening dissonance between that law and the realities of a rapidly changing and increasingly relevant realm of combat.
It seems our discussion reveals potential normative and theoretical points about the evolution of the law of war as well. Professor Corn and I are perhaps like-minded in our assumptions about what constitute valid sources of law and worthwhile norms. However, his observation that some combatants’ exposure to hostilities may be out of proportion to their participation calls to mind schools of thought that take greater account of individuals’ interests, combatant and civilian, in the formation of the law of war than perhaps my own sovereigntist view does. Additionally, competing international law compliance theories might shed additional light or cast doubt on the viability and desirability of the article’s proposal. Although compliance theory is well integrated into jus ad bellum scholarship, I note less thorough treatment from jus in bello work. I wonder whether a better developed in bello compliance theory would enrich our discussion of the costs and benefits of presumptive application of existing law to emerging forms of warfare?