Earlier this month, I entered the fray in a stimulating debate over Prof. Adil Haque’s innovative proposal to lower the threshold for defining non-international armed conflict (NIAC). In particular, I expressed deep concern over Adil’s idiosyncratic view that the application of international humanitarian law (IHL) in no way displaces, modifies, or reduces the protections of otherwise applicable domestic law or international human rights law (IHRL). The upshot of Adil’s parallel application argument—whereby IHL provides “more detailed guidance” on prohibited conduct without permitting greater force against lawful targets—seems to entail that triggering IHL has no real practical effect besides creating war crimes liability for violations. From this perspective, implicating IHL is a humanitarian “win-win.” I argued that such a cramped reading of IHL would actually result in a humanitarian net loss by undermining the law’s moral force and compromising compliance.
Adil has done me the honor, and readers the service, of offering a characteristically instructive and thoughtful response (which I look forward to reading more about in his forthcoming book). Unsurprisingly, Adil doubles down on his parsimonious reading of IHL because his NIAC proposal collapses without it: If IHL does in fact do more than Adil says it does—which, according to him, is very little—then ostensibly he would be less willing to take such a lenient approach to triggering it.
If Clemenceau was right that “war is too important to be left to the generals,” then clearly defending the legal and moral architecture of IHL is far too significant a task for a middling military lawyer. Nonetheless, Adil’s contention that IHL serves no licensing function for those tasked with risking and taking lives on their nations’ behalf demands a rejoinder.
First, Adil assumes—wrongly in my view—with respect to IHL, and presumably to law in general, that because other rules may apply, contrary law must apply. As such, he takes the fact that a military campaign’s rules of engagement (ROE) can be stricter than IHL as evidence that IHL is not a comprehensive legal regime. With all due respect, Adil seriously misconstrues the nature of ROE here.
ROE—which dictate how and when force can be applied—are based upon law, but also policy, strategy, and political considerations. For those in uniform, ROE are binding because they are issued by a proper military authority, not because they exist as a parallel body of law. Of course ROE can be more, but never less, restrictive than IHL. But professionals in every field must work within the rules, while simultaneously making hundreds of judgments a day about which course of action is most prudent or effective. As I understand it, Adil’s general point is that the law cannot be said to permit certain conduct if another authority can limit it. The military is a useful vehicle for this argument because it is the only profession I know of where an employer’s mandates routinely function like law. But this does not mean that ROE are, in themselves, law.
A political or strategic determination to unleash less than the permissible degree of combat power does not alter the applicable legal framework. Rather, it is a judgment call that subordinate personnel must respect as a matter of obedience to lawful military orders. Contrary to Adil’s reasoning, the susceptibility to court-martial for violating ROE says nothing about the purported inadequacy of IHL; it says everything about the centrality of discipline as a cardinal military virtue.
Second, Adil deliberately conflates the jus belli branches of law to render the permissibility of soldiers’ conduct dependent upon the justice of their cause. This, of course, cuts against the “posture of startling moral modesty” at the heart of IHL, which—at least in international armed conflict (IAC)—affords equal status to those authorized to fight. To be fair, Adil is in good company here with philosophical luminaries like Prof. Jeff McMahan, and he does concede that the IHL-compliant actions of what Jeff terms an “unjust combatant” can be legally excusable, even if morally unjustifiable.
Let’s leave aside the practical difficulties that all sides in a conflict tend to perceive themselves as mainly in the right—a problem highlighted by none other than Bob Dylan a half-century before he became a Nobel laureate in his song “With God On Our Side.” Let’s also ignore that many, if not most, combatants throughout history have been conscripts subject to varying degrees of coercion. We are still left with the fundamental issue that judging a soldier’s actions by his cause injects incompatible language and logic (i.e., guilt versus innocence) into a distinct moral and legal space defined by status rather than individual responsibility for political ends. Taking “the unique circumstances of organized violence generated by war as a given,” IHL doles out judgment only according “to a separate moral code that specifies war crimes.” This is why the post-September 11, 2001 term “unlawful combatant” was so problematic—it sought to define the choice to fight, rather than the act of fighting unfairly, as the source of illegality under international law.
Thus, I believe Adil errs significantly when he states, “legal authorization to fight ultimately derives from the jus ad bellum.” We can hold a country’s political leadership accountable for the crime of aggression, but for the members of that state’s armed forces, the legal authorization to fight is “the right to participate directly in hostilities.” It is no small matter that this is how honorable warfighters intuitively see it. Take, for example, how retired Col. Cesar Rodriguez, the U.S. Air Force’s most decorated fighter pilot of recent years, respectfully describes the enemies he vanquished over Kosovo and Iraq (who would—with better skill, training, technology, and luck—have been happy to incinerate him instead): “I don’t personalize the war. He was doing what I was doing for my country.” Take also what Sen. John McCain, a pilot less fortunate than Col. Rodriguez, told Marine Basic School graduates a generation ago: “You are judged not by your summons, but by your answer.”
One point on which Adil and I wholeheartedly agree is that “those of us who still live in democracies have a moral responsibility to our soldiers, among others, to ensure that our governments do not send our soldiers to fight, die, and kill for an unjust cause.” But this does not mean that a soldier who fights justly in an unjust war has done anything worthy of condemnation. It merely reflects what Rousseau wrote over 250 years ago: “War is a relation not between man and man, but between state and state, and individuals are enemies only accidentally, not as men nor even as citizens but as soldiers.”
In contrast to the way Adil envisions the moral function of IHL, I wanted to conclude by offering an alternative analogy that I have employed elsewhere, and that I think (and hope) better encapsulates the law’s profound meaning for those who engage in mortal combat: An ice hockey rink, like the proverbial battlefield, is a distinctly governed space where activity considered an assault and battery in daily life is both accepted and rewarded.
But this is not to say hockey has no rules. Rather, it has its own rules, which were developed, in large part, by hockey players themselves over time. At their best, these rules—at the risk of mangling the Rawlsian original position—represent what most every hockey player would choose without knowing their size, speed, skill, or role (e.g., goal scorer vs. “enforcer”) in advance. The rules of the game both reflect and reinforce powerful social norms, such that being known as a “dirty player” is a badge of shame. This doesn’t mean the rules are perfect and cannot evolve over time. All that we know for certain is that without them—or if hockey players were to decide en masse not to observe them because the rules were no longer consistent with what hockey is –mayhem (and greater bloodshed) would most likely ensue.
As someone who can barely skate, I am probably (my apologies in advance) on thin ice here. But what Adil seems to be saying is that the hockey rules don’t permit checking an opponent into the boards, they merely prohibit high-sticking, hooking, elbowing, etc. And he calls the opposing view “dangerous.” I would counter that it is actually his position that is dangerous, because if the hockey rules become incoherent and unenforceable, an inherently perilous occupation will become exponentially more so. Clearly outside norms can supplement and gap-fill what the hockey rules don’t cover, but the customs of everyday interaction can no more contemplate or control the routine violence of hockey than IHRL foresees the “massive uses of military power” commonplace in armed conflict. Whereas IHRL presumes that the government is governing, IHL presumes that the government is fighting. Governments can do both, but not necessarily at the same place and time.
In war, unlike hockey, the stakes are always deadly serious. And those who suffer most when the rules break down aren’t necessarily the combatants (i.e., players), but civilians (i.e., spectators) who are neither appropriately trained nor equipped for the resulting brutality.