Volume 43 | Number 3 Summer 2008
V. Balancing Military Effectiveness and Humanitarian Ideals
The discrimination principle admittedly does not embody the ideal ethical basis for the regulation of international violence. There are sound arguments for tying individual criminal responsibility to participation in the international use of force conducted immorally or to immoral ends. After all, when a state deploys its military for clearly unjust and illegal ends, such as territorial aggrandizement or naked aggression, a standard of individual responsibility that exonerates combatants from punishment for participating in such a use of armed force seems to divorce international humanitarian law from any theory of ethics that attributes free will and individual moral responsibility to all persons.
The assumptions of free will and individual moral responsibility are, however, merely theories, and encoding them in international law presupposes a veritable babushka of other nested assumptions. Individuals must be assumed (1) to have all the relevant facts about the international situation; (2) to be capable of seeing through misleading statements or lies made by political leaders and the media; (3) to be able to control their feelings of nationalism; and (4) to resist the social and possibly legal pressures to participate in the armed conflict. Given that requiring all potential participants in an armed conflict to judge accurately and objectively its relative justice and the relative moral culpability of others involved in the conflict is not a feasible option for structuring international humanitarian law, the current rules are an appropriate and morally defensible compromise. The discrimination, necessity, and proportionality principles pursue the worthy goal of limiting the destructive effects of armed conflicts to the extent politically feasible. Without dismissing the importance of ethical analysis of the ius ad bellum; this Article rejects the practicality of tying it to ius in bello.
Accepting that the limitation of suffering caused by unavoidable armed conflicts is a morally worthy goal, the germane question is not how international law can hold all individuals responsible for all of their immoral, or questionably moral, decisions in the course of an armed conflict. Rather, it is how to limit the suffering caused by armed conflicts to the minimum necessary given the political constraints on further abridgment of military discretion on the battlefield. Incremental changes to humanitarian law are more likely to achieve the political critical mass necessary to amend the operative treaties than paradigm-shifting proposals to abolish civilian immunity or make participation in any unjust war a crime against humanity. Advocating reform of humanitarian law rather than the abolition of civilian immunity is a rather conventional proposal, and in any case examining the avenues of reform is beyond the scope of this Article. It is not, however, inapt to mention a few promising options with a view to stimulating future discussion.175 The alternatives may be divided provisionally into three categories: (1) making the content of the relevant norms more definite and protective; (2) improving enforcement mechanisms and institutions; and (3) supplementing necessity and proportionality with alternative concepts and rules.
First, improving the definiteness and clarity of the rules underlying military necessity and proportionality (for example by adding specific constraints on attack or defense methods and permissible targets) has at least two important advantages. Greater definiteness increases the enforceability and deterrence value of the norms, as it becomes more difficult for belligerents who recklessly inflict civilian casualties to argue that unduly dangerous tactics fall within a broad margin of appreciation created by the vague language of international norms. After all, if almost any attack can be credibly argued to comply with the rules as necessary and proportional, even when the number of civilian casualties greatly exceeds the number of combatant deaths or the realistic military value of the target attacked, the goal of minimizing the unnecessary suffering caused by armed conflicts remains very distant.
Another advantage to improving definiteness is the option most likely to gather political consensus, as international lawyers can focus on advancing rules likely to achieve maximal prevention of civilian casualties at minimal military disadvantage. It is important to remember that not every state sought more definite rules of proportionality during the 1977 Additional Protocols.176 Proposals to tighten the restrictions on modes of attack for the greater protection of civilians either failed or were kept off the agenda due to the opposition of the United States and other powerful states.177 The most likely avenue of opposition is that detailed rules may be inapposite to the unpredictable constellation of circumstances present in any military encounter. Lieutenant Colonel William Fenrick argued in 1982 that more detailed and objective rules elaborating a proportionality standard in the ius in bello “might well be too inflexible to be applied in the myriad circumstances of combat.”178 Whether this will create an insuperable problem depends of course on how the rule is crafted, but we can expect the states most likely to resort to force in international relations, including for humanitarian purposes, to oppose proposals for significantly greater definiteness on these grounds.
Keeping in mind these political constraints, a few examples of potential reforms might include (1) a categorical prohibition on scorched earth tactics in foreign territory designed to deny foreign civilian facilities to advancing enemy forces; (2) a dynamic redefinition of military objectives so that the scope of permissible objectives narrows dramatically when a belligerent achieves decisive air superiority or positional superiority;179 (3) a specific rule prohibiting the sacrifice of any significant number of civilian lives in hopes of achieving a highly improbable chance of military success; (4) a legal presumption that a certain ratio of civilian-to-combatant deaths resulted from a disproportional attack; or, (5) as Marco Roscini has suggested, a requirement that civilian casualties and suffering to be factored into the calculus of proportionality must include not only immediate deaths, injuries and destruction, but likely long-term consequences, including starvation, homelessness, disease, and poverty.180 Some of these proposals, if implemented, are likely to reduce civilian casualties more than others, just as some will be more politically and militarily objectionable than others. Because there are a great variety of potentially more definite rules, the proposals can be tailored to balance these considerations as needed.
Greater definiteness does not, however, inevitably address the problem of enforcement. Creating clear rules is one thing; finding the political will in the international community to enforce them in dangerous combat situations is quite another. Without enforcement, more definite rules promise only to make clearer than before that violations of international humanitarian law usually go unpunished—quite the opposite of deterring the disregard of civilian safety. As things stand, the extreme rarity of prosecution and punishment for violations of necessity and proportionality181 attests not only to the vagueness of the norms but to the unreliability of the current enforcement options. These formerly might have included belligerent reprisals, but these have now been severely constrained by Additional Protocol I.182 This leaves the threat of domestic prosecution, prosecution before an international tribunal such as the International Criminal Court or an ad hoc tribunal, or court-martial by the enemy belligerent as the primary means of enforcement. The proliferation of civilian casualties proves at least that the threat of judicial enforcement is insufficiently communicated or credible to military commanders and combatants in many armed conflicts.
Second, as with proposals to increase definiteness, proposals to improve enforcement are likely to encounter political opposition. The U.N. Security Council permanent members’ highly divergent geopolitical interests and ideologies limit its ability to commit to ensuring the punishment of war criminals. Also deterring reform, the very states whose intervention in armed conflicts is necessary and desirable to prevent civilian catastrophes object to the possibility of prosecutions.183 Systematizing intervention during armed conflicts is even less politically palatable, as evidenced by the refusal of the U.N. Security Council thus far to implement the recommendations of the Panel on U.N. Peacekeeping Operations to create a standing rapid-deployment force of peacekeepers.184 While a more incremental improvement in enforcement mechanisms is certainly possible, it seems optimistic to hope that a rise in enforcement of necessity and proportionality norms sufficient to deter many military excesses will result.
As discouraging as it may seem to abandon the hope of more definite and better enforced rules for the protection of civilians in armed conflicts, as Bismarck observed, “politics is the art of the possible.” While reformation in this direction may transcend the possible, it is the task of international lawyers to find solutions in the realm of the possible for advancing desirable policy goals such as the diminution of the suffering caused by armed conflicts.
Third, the universe of effective and politically acceptable reform proposals is large indeed, but one especially promising proposal is worth revisiting briefly here. International law already binds states to provide compensation for victims of violations of the laws of war.185 W. Michael Reisman’s 1997 proposal, directed toward expanding and modifying this obligation to ameliorate the suffering of civilians posits:
Compensation in humanitarian law should be conceived on two levels, with two measures of damages. First, and without regard to the question of violation of the law of war, belligerents must compensate injured noncombatants or their survivors promptly, in proportion to the degree to which each caused the injuries suffered. Measure of damages here may be determined by general principles of compensation for civil liability on which there is ample agreement and for which there are detailed models. Thus, compensation will be a humanitarian instrument for repair of an injury suffered by an innocent party. The issue is not absolute liability, for a state may substantially reduce, if not eliminate, liability by using more discriminating (and hence more operator-vulnerable) weapons, thereby “internalizing” what would otherwise be collateral damage. . . .
Second, compensation should also be conceived of as a sanction for violations of treaty terms—in short, an international expiation for criminal responsibility. Measure of damages here will be determined in sanction terms by reference to such factors as the gravity of the offense, intentionality, etc.186
This proposal has the substantial advantage of fulfilling the long recognized but rarely respected obligation to compensate for violations of the laws of war “if the case demands.”187
Another strength of the proposed approach is that unlike the typical international humanitarian law analysis, it does not force military commanders to make immediate and legally consequential military judgments based on the current nebulous standards of necessity and proportionality. If it is unclear whether an attack meets the standards of necessity and proportionality, the attack may proceed if the belligerent can afford to compensate the civilians, or their heirs, who will suffer from it. Except in cases of grave breaches of humanitarian law, this turns an obscure legal analysis into a fairly concrete economic analysis.
A second advantage of compensation is its focus on remedying the damage caused by disproportional attacks rather than merely deterring the attacks—an area where humanitarian law remains ineffectually. Compensation of such harm is desirable both from the civilian point of view and because it may mitigate any information-distorting function of humanitarian law with respect to belligerent states and their supporting populations. In short, this scheme would increase the costs of armed conflicts in proportion to the suffering inflicted on the opposing civilian population. This would create a financial disincentive to engage in recreational warfare and would provide ammunition, as it were, to opponents of questionably justified armed conflicts.
A third strength of the proposal is that it forces political elites, who are often responsible for pressuring military commanders to conduct hostilities with less respect for the rules of warfare than military culture might prefer, to share in the opprobrium for disproportional attacks. Because political elites must usually answer for the economic consequences of warfare, large civilian losses are more likely to impede their ability to fund armed conflicts and, once the costs become clear, may redound to their political discredit. Under Reisman’s scheme, it will be less feasible for the civilian political leadership to demand aggressive military tactics and expect the blame for disproportional civilian losses to fall solely on military commanders.
The attractions of a compensation regime have led some to question whether replacing the concept of war crimes altogether with a compensation regime might vindicate civilian interests more effectively.188 Yet, with all the advantages of compensation, it is preferable whenever possible to deter the excessive loss of civilian lives rather than pay for them. Despite some exuberant economic theories, the monetization of human life and suffering, while often unavoidable, is never the ideal policy option. A duty to compensate will have some preventative value, especially insofar as motivates states to systematize disincentives for violating the laws of war, but the problem of individual action remains. An individual is far more likely to respond to threats of personal punishment and stigmatization than to the possibility of the state bearing some economic expense because of his actions.
The second part of Reisman’s proposal addresses punitive deterrence directly. This part presupposes violations of ius in bello are sufficient to give rise to criminal responsibility. In the cases of necessity and proportionality, a finding that states have violated these principles is likely only under current law in the most extreme circumstances, if ever. Thus, the advantages of Reisman’s approach do not supplant the need for more definite guidance on the rules of necessity and proportionality if those norms are to be usefully retained.
The basic conclusions defended here are threefold. First, the concept of civilian immunity is impervious to criticisms that it fails to account for the justice of the entire armed conflict as a whole and that it does not consider the ethical position of individual combatants and civilians. The quest for such highly nuanced rules of warfare is quixotic and undermines the goal of minimizing the destruction and suffering caused by armed conflicts that cannot realistically be prevented.
Second, increasingly popular objections to civilian immunity concerning its fundamentally gendered concept have little to recommend them in terms of the actual substance or the implementation of the discrimination doctrine. Apart from social and political rhetoric and the domestic practices of states, civilian immunity as a legal principle is gender neutral. There may be other provisions of international humanitarian law that reflect gender bias, but this observation is hardly equivalent to claiming that, in a gender-free world, civilians would be lawful targets of attack or that the concept of civilian immunity would assume a fundamentally different form.
Third and finally, the legal rules of military necessity and proportionality may be criticized as insufficiently definite and detailed to shield civilians and civilian objects against all the effects of armed conflicts, but they clearly represent an improvement over a basic duty not to attack civilians directly and intentionally. The argument that these norms cause harm by misrepresenting the risks of armed conflicts to civilians is unpersuasive on the facts.
Civilian immunity represents a useful and progressive norm of international law that reflects not the minimization of harm to civilians as a supreme value, but rather a compromise between that goal and the demands of most states to be allowed to pursue military victory without unduly objectionable constraints. As humanitarian values gradually displace militaristic values in the world public order, the balance may shift further toward increased protection of civilians through legal reforms defining necessity and proportionality in greater detail, more systematic enforcement of these norms, alternative approaches to protecting civilians and their property, or some combination of these. In the meantime, the advantages of civilian immunity and its related doctrines more than justify their continued observance as rules of both customary and conventional international law.
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Footnotes
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