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Introduction: Legitimate Targets?

Published on September 22, 2015        Author: 

In 2003 during their invasion of Iraq American troops were commended for going to great pains to comply’ with international law and at the same time they were condemned as the ‘most violent and murderous army’ in American history. The question these dichotomous assessments raise is: what can international law (IL) accomplish in war? What does it mean that conduct in war is subjected to regulation by international humanitarian law (IHL), that belligerents wage war legally? My book, Legitimate Targets? International Law, Social Construction and US Bombing, aspires to providing a comprehensive answer to the question in four steps.

The first part identifies mechanisms by which recourse to IL can make a difference for individual and state behaviour. Given the lack of systematic and reliable enforcement of IL, in International Relations scholarship as well as public commentary, this is still often doubted. I argue that IL, when it is recurred to, can mediate between actor’s interests and normative beliefs. What I call the intellectual and the motivational effects of recourse to IL can change how an actor perceives her reasons for action. IL can be behaviourally relevant.

The book then discusses the legal rules defining a legitimate target of attack contained in the First Additional Protocol to the Geneva Conventions and customary law. I address and suggest solutions to a number of subsisting interpretive debates with reference to two alternative logics of how a belligerent can attempt to accommodate the competing demands of humanitarianism and military necessity. What I call the logic of efficiency aims to minimize belligerents’ expenses in time and blood over the achievement of their political goals. The logic of sufficiency aims to contain war to a purely military competition geared towards ‘generic military victory’. The latter is the logic according to which the First Additional Protocol demands that belligerents ‘distribute’ deliberate harm in war.

The empirical part of the book systematizes US bombing practices across three wars since 1965 showing that as input of IHL into military decision-making increases, air targeting develops from following largely the logic of sufficiency to giving ever more room to the logic of efficiency. Interviews with military decision-makers reveal that the intellectual and motivational effects of IHL along with technological and broader normative changes in international relations account for this development. Though the Protocol prescribes the logic of sufficiency, the rules are highly indeterminate, which allows belligerents to follow IHL as well as an ever stronger imperative of efficiency in war.

The last part brings to bear two normative standards – morality and perceived legitimacy – to evaluate the way in which IHL envisages belligerents conduct war according to the First Additional Protocol (the logic of sufficiency) and the way of waging war which recourse to IHL actually encourages (the logic of efficiency). Neither logic accords with an individual rights based morality, which would demand that belligerents follow a third logic, the logic of liability. The latter which distributes harm in war according to the harmed individuals’ moral status, which is impracticable given the scale and collective nature of war. Nonetheless, public expectations of legitimate state conduct in the 21st century echo the logic of liability, which explains the puzzle of ever more legalized US warfare meeting not with less, but with more public criticism. On the 21st century battlefield there are no fully legitimate targets.

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