Do the laws of war give soldiers a right to fight, irrespective of their cause and free from other constraints? Or are the laws of war merely one set of constraints among others? In previous posts, I took the view that the laws of war constrain but do not authorize the use of deadly force during armed conflict (see here and here). The laws of war apply alongside other legal and moral constraints, including the jus ad bellum and human rights law, which may prohibit what the laws of war do not.
In two perceptive and generous interventions (see here and here), Charles Kels—a major in the U.S. Air Force writing in his personal capacity—defends the opposing view that the laws of war both constrain and authorize, limit and license, thereby creating “a distinct moral and legal space” that “doles out judgment only according ‘to a separate moral code’.”
Charles’s view is shared by many thoughtful military officers, particularly in the United States, an unfortunate state of affairs that may be related to the enduring prominence of Michael Walzer’s Just and Unjust Wars in the curricula of U.S. military academies. I discuss the Walzerian picture of the law and morality of war at some length in my forthcoming book. In this reply, I will try to limit myself to specific points raised by Charles himself.
Equal Status or Equal Protection?
Charles writes that “IHL —at least in international armed conflict (IAC)—affords equal status to those authorized to fight.” This is not quite right. The equal application of IHL is an important structural principle. However, IHL does not afford equal status to opposing Parties. In both international and non-international armed conflicts, the application of IHL “shall not affect the legal status of the Parties to the conflict.” Instead, IHL affords equal protection to opposing Parties, and to their civilian populations, “without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.” Put another way, the equality of belligerents is an equality of constraint, not an equality of authorization.
In particular, IHL applies equally to opposing Parties irrespective of their unequal legal status under other bodies of law. As I noted in my previous post, senior military commanders may be lawful combatants immune from domestic prosecution by adversary States yet criminally liable under international law for acts of aggression. Organized armed groups may be criminally liable under domestic law for taking up arms against their government. IHL applies equally to them and to their legally unequal adversaries.
Charles locates “the legal authorization to fight” in “the right to participate directly in hostilities” that the law of IAC confers on lawful combatants. We should treat this view skeptically, since “nothing in [the law of IAC] can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with [the jus ad bellum].” For example, a senior military commander’s right to participate directly in hostilities cannot be construed as legitimizing or authorizing an act of aggression that he or she plans, prepares, initiates, or executes. Nor, in my view, can an ordinary combatant’s right to participate directly in hostilities be construed as legitimizing or authorizing an act of aggression that he or she carries out.
Charles worries that I “deliberately conflate the jus belli branches of law to render the permissibility of soldiers’ conduct dependent upon the justice of their cause.” Charles need not worry. I agree that a use of armed force may be prohibited by the jus ad bellum but not prohibited by the jus in bello, or may be prohibited by the jus in bello but not prohibited by the jus ad bellum. What I deny is that a use of armed force may be prohibited by the jus ad bellum while the acts of violence that make it up are authorized by the jus in bello. As I wrote in my previous post, “[s]uch a view would introduce incoherence into the very heart of the jus belli regime.” In contrast, on my view the jus ad bellum and the jus in bello are both independent of each other and consistent with each other.
In my view, the right of lawful combatants to participate directly in hostilities is simply the right of lawful combatants not to be criminally punished by adversary States for participating directly in hostilities. In other words, this right is not a broad privilege but instead a limited immunity.
Rules of Engagement
As I explained in my previous post, acts not prohibited by the laws of war may be prohibited by the national law of a combatant’s own State. I illustrated this point by reference to rules of engagement (ROE). ROE are a species of lawful military orders, and violations are punishable as such under national law.
Charles fears that I “seriously misconstrue the nature of ROE,” but this fear is misplaced. Charles is correct that “ROE are binding because they are issued by a competent military authority, not because they exist as a parallel body of law.” My claim is that (i) ROE are binding and (ii) if States may adopt binding rules by issuing lawful orders then States may also adopt binding rules by ratifying human rights treaties that apply during armed conflict. As far as I can tell, my claim stands.
I do not, as Charles suggests, “assume … that because other rules may apply, contrary law must apply.” However, I do assume that because other rules may apply, contrary law may also apply. In addition, I do not assume that contrary law in fact applies. On the contrary, I argue that it does.
In particular, I argue that all killings that violate IHL also violate applicable human rights law, although some killings that do not violate IHL may nevertheless violate applicable human rights law (for example, killing unarmed fighters whom you could safely capture). Charles worries that, on my “parsimonious” view, IHL does “very little.” This worry is misdirected.
First, IHL does some things that human rights law may not do at all. For example, human rights law generally does not constrain acts of violence by organized armed groups (for a contrary view see here) and certain human rights treaties may not constrain extraterritorial killings by State agents.
Second, IHL does one thing reasonably well that human rights law currently does quite poorly. As I observed in an earlier post, “the specific rules of the LOAC provide more detailed guidance to combatants than the general IHRL prohibition of arbitrary killing.” It is true that, on my view, some killings that do not violate the specific rules of IHL may nevertheless violate the general IHRL prohibition of arbitrary killing. For this reason, among others, IHL is not a complete guide to lawful conduct in war. However, this lingering gap should inspire us to improve IHL—both by purposively interpreting the rules we have and by carefully developing the rules we need—so as to provide combatants with the best possible legal and moral guidance. As Charles kindly notes, I take up this task in my forthcoming book.
Laws of War, Rules of Games
Charles concludes his letter with an extended analogy between the laws of war and the rules of ice hockey. This analogy is instructive, though not in the way that Charles thinks. Charles writes that “[a]n 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.” Charles writes that ice hockey “is subject its own rules,” although “outside norms can supplement and gap-fill what the hockey rules don’t cover.”
In fact, everything that occurs on an ice hockey rink is subject both to the rules of ice hockey and to ordinary domestic law. It is just that domestic criminal law itself contains an affirmative defense of consent that extends to injuries suffered in otherwise lawful athletic competition. In other words, the rules of ice hockey do not themselves displace, modify, or reduce the protections of otherwise applicable domestic law. On the contrary, domestic law determines the conditions of its own application as well as the scope of its protections.
Similarly, I have argued that the laws of war do not themselves displace, modify, or reduce the protections of otherwise applicable human rights law. On the contrary, human rights law determines the conditions of its own application—for example through its rules governing derogation in time of war—as well as the scope of its protections. I have argued that human rights law continues to apply during armed conflict, and may prohibit acts not prohibited by the laws of war. I may be wrong, but Charles has given me no reason to think so.