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Letter to the Editor: Response to A Right to Fight?

My sincere thanks to Prof. Adil Haque for engaging with me in a debate, both here and at Opinio Juris, over the moral function of the laws of war. To recap, Adil proposed lowering the threshold for non-international armed conflict (NIAC) to approximate the standard for international armed conflict (IAC), with the noble intention of ensuring humanitarian protections and accountability in the context of “first strikes” by states against armed groups. When other commenters objected that triggering international humanitarian law (IHL) in situations ordinarily considered more appropriate for a law enforcement paradigm could have the perverse effect of unleashing the more permissive targeting and detention rules associated with war, Adil replied that these concerns were based on a “mistaken view” that IHL authorizes, as opposed to constrains, the use of force in armed conflict.

This, in turn, led to the current back-and-forth between Adil and me as to the meaning of IHL, specifically whether it is “one set of rules among others” (Adil’s view) or a linchpin in the makeup of the honorable warfighter (mine). My aim here is to respond to Adil’s latest incisive entry, and then leave any concluding remarks to him.

As a preliminary matter, I should note that while Adil and I clearly have different conceptions of IHL, my main concern from the outset has been distinguishing between the lex lata (the law as it exists) and the lex ferenda (what the law should be). When it comes to both triggering and applying IHL, Adil seems to me to be couching an innovative argument about what the law should be in language that purports to describe what the law actually is. We can argue about the definition of a NIAC, but we need to acknowledge that the Tadic test, requiring a minimum level of intensity and organization, enjoys wide state acceptance.

Similarly, we can have a productive debate on the interaction between IHL and international human rights law (IHRL) in armed conflict, but it does little good to classify as naive or “false and dangerous” the reality that IHL has long and near-universally been understood as permitting—or what the Lieber Code called “admit[ting] of”— the use of lethal force against lawful targets. I am of course biased as an American judge advocate in viewing the Lieber Code as a foundational text, but the fact remains that both the Hague Conventions (annex, section II) and Additional Protocol I (AP I) (articles 48 and 51(2)) are regarded by states, scholars, and international organizations as having established that, at least in the IAC context, “combatants may be targeted at any time and any place.” This is because IHL assumes a backdrop where peacetime norms have broken down, and thus “takes the unique circumstances of organized violence generated by war as a given.” 

The principle of military necessity, or what AP I calls military objective, “serves as a licensing function of the law of war,” with the imposition of “superfluous injury or unnecessary suffering” as the primary prohibition vis-à-vis combatants. Indeed, this is a main reason why distinguishing between war and peace is so important to begin with, and why human rights advocates fret over the broad or inappropriate application of IHL outside of armed conflict. As Prof. Gabor Rona recently noted on this site, “it’s wrong to apply the more permissive killing rules of the law of war to situations governed by the more restrictive rules of human rights law,” because the status-based targeting regime specifically allowed by IHL would run afoul of IHRL proscriptions “outside of war.”

Under Adil’s analysis, on the other hand, it is hard to see why we wouldn’t want IHL to apply universally and perpetually. After all, it merely adds “more detailed” prohibitions than IHRL, and in any event does not displace, modify, or reduce IHRL protections in any way, shape, or form. To be sure, even if Adil made clear that he was engaged in a normative exercise rather than a descriptive one, we would almost certainly still disagree about the role and meaning of IHL. But I would be much less concerned about the myriad difficulties of operationalizing such a novel interpretation of IHL, which Adil appears to present as accurate rather than aspirational.

As to the specific points in Adil’s latest post, he pegs me as a Walzerian, which is probably fair in many respects. Certainly, Adil is entitled to accept IHL “equal application” as a legal principle without subscribing to Walzer’s philosophical theory of the “moral equality of soldiers.” I would only posit that equal status is a very coherent (and in my view compelling) rationale for equal protection: i.e., opposing combatants are licensed to harm one another, so long as they are not hors de combat, irrespective of the political ends for which they have been sent to fight.

Moreover, I disagree that the citations (primarily from AP I) that Adil offers to rebut the notion of “equal status” under IHL truly support his contention. Actually, I think they do the opposite. For example, Adil quotes the provision of AP I’s preamble stating that the application of IHL has no bearing on the jus ad bellum (i.e., whether the state’s initial resort to force was lawful) to argue that the ad bellum and in bello rules apply side-by-side in warfare. In my view, a more commonsensical (not to mention historically accurate) reading is that the jus belli regimes are distinct, such that armies have an obligation to fight well even if they are not fighting for right.

With respect to my highly imperfect sports analogy—wherein I argued that a playing field, like the proverbial battlefield, is in many respects subject to a unique code honed over time by the guardians of the game—Adil rejected this notion as explained solely by the affirmative defense of consent. I would not deny that consent plays a significant role, but I would nonetheless reassert the significance of the customs and nature of the game itself.

Of course Adil is correct that a game played within a government’s jurisdiction is subject to relevant domestic law. The rules of a game are not developed by states and cannot be lex specialis. If anything, this actually makes it more remarkable the extent to which courts have been willing to show deference to the written and unwritten codes of conduct unique to sporting events. In one case involving a professional football injury, the Tenth Circuit emphasized “the general customs of football” in deciding whether the conduct could be tortious. In a famous Canadian criminal case precipitated by a vicious blow with a hockey stick, the judge focused heavily on “the code of conduct as to what form of fighting is permitted.” Yet in ordinary domestic law, no form of fighting is permitted outside of self-defense.

Consent is doubtless at play here, but so is something else: Placing outside restrictions on an activity which, by its very nature, involves violating those restrictions renders either the underlying activity untenable or the restrictions themselves unenforceable. When it comes to war, history and tragedy teach us that the latter is exceedingly more likely.

I do not anticipate that I will have convinced Adil of my argument any more than in previous posts, and I very much look forward to reading a fuller explication of his perspective in his just-published book. Moreover, I wholeheartedly agree with Adil that IHL is not stagnant, and that improving its humanitarian protections is a noble pursuit.

Where we part ways, perhaps inalterably, is in my insistence that any attempt to enhance IHL by “purposively interpreting” it be consistent with the need to convey and administer targeting doctrines decisively amid conditions of unthinkable violence. In my view, radically new interpretations of extant IHL principles—such as one that casts doubt on the legality of status-based targeting in armed conflict where all IHL requirements have been met—are thus unhelpful to improving the law.

I do not believe we can interpret our way around the fact that there are two sides to IHL: the protections for civilian populations and combatants hors de combat, which sit comfortably astride IHRL, and the authorizations inherent in the conduct of hostilities, which mix uneasily with a post-World War II legal regime based on the sanctity of individual rights. Triggering IHL invokes both aspects of the law. This is a reason to clearly delineate where and when IHL applies, but it is not an excuse to turn a blind eye to the parts of IHL we find unsavory.

Image: Getty

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About the Author

is a major in the U.S. Air Force and formerly served in the Office of the General Counsel of the U.S. Department of Homeland Security. His views do not reflect those of the Air Force or Departments of Defense or Homeland Security.