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Legitimate Targets?: A Reply to Jutta Brunnée and Geoff Corn

Published on September 24, 2015        Author: 

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I would like to start by thanking Jutta and Geoffrey for their detailed and very thoughtful comments. I am particularly glad that Geoffrey focused on my interpretation of IHL, bringing to bear his military expertise and that Jutta focused on the theoretical part of the book, which is inspired by her own interactional theory of international law (IL), developed with Stephen Toope. As their comments cover different terrains I will begin by addressing three criticisms contained in Geoffrey’s remarks and then separately engage with Jutta’s discussion of the book.

Geoffrey disagrees with my representation of the role and substance of the principle of proportionality. I should clarify that I agree with Geoffrey’s observation that the principle is not necessarily central to many practitioner’s understanding of legitimate targeting. When I emphasize the principle’s importance, I mean its central place in the ‘architecture’ of IHL. It repeats the very purpose of law to somehow accommodate the regularly opposed imperatives of protecting human life and of allowing belligerents to follow military necessity. In theory, how proportionality is interpreted chiefly determines how much civilian protection and belligerents’ freedom of action respectively IHL affords. In practice, it is rarely mentioned without reference to precautions in attack, as Geoffrey points out, and it is often misunderstood.

Geoffrey also questions my representation of the principle’s substance as asking for something akin to a balance between the anticipated military advantage and expected civilian harm. He states that practitioners rather than seeking such a balance ‘understand that where civilian risk cannot be justified by genuine military interests … there is no utility in the use of combat power’. Though very important, I believe this is not a proportionality judgment, but one of necessity. Read the rest of this entry…

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Legitimate Questions about Legitimate Targets

Published on September 23, 2015        Author: 

I appreciate the opportunity to offer my reactions to Janina Dill’s impressive work on lawful targeting, or more precisely the effectiveness of international law in regulating combat operations.

Janina’s book (Legitimate Targets? International Law, Social Construction and US Bombing) is a fascinating analysis of the complex intersection of international relations and international law. Central to her thesis is the dichotomy between what she defines as the “logic of efficiency” and the “logic of sufficiency.” As she explains, each of these concepts reflects some of the underlying objectives of international legal regulation, most notably in relation to armed conflict. The logic of efficiency essentially prioritizes achieving the strategic end-state “efficiently” over protection of the civilian population, essentially trading civilian risk for rapid victory. In contrast, the logic of sufficiency seeks to limit the risks of armed conflict to each party’s military forces in order to enable them to compete in the contest of arms with limited impact on civilians. Janina posits that the targeting regulatory regime established by Additional Protocol I reflects a “sufficiency” foundation, as it sought to limit the use of combat power to only those potential targets that offered a genuine prospect of weakening enemy military capabilities.

International relations theory is well beyond my area of expertise. Nonetheless, what I found most compelling about Janina’s thesis was how she endeavors to translate theory into a more tangible “package” of principles to clarify the relationship between international law and international relations. It is probably unsurprising, however, that I gravitated more towards Janina’s analysis of the impact of international humanitarian law on the planning and execution of combat operations. While I found her dichotomy between “efficiency” and “sufficiency” interesting, I am not persuaded that IHL’s rationale is so neatly segregated. Throughout her book, I found myself wondering why arguments in favor of sufficiency did not also reflect elements of efficiency, and why arguments in favor of efficiency did not also reflect elements of sufficiency. I do, however, think the dichotomy offers a fascinating and novel lens through which to consider the role of IHL, which is, I believe, ultimately what Janina sought to accomplish.

Janina’s explanation of IHL targeting rules was clear and accurate throughout the text. She also provides important insights into how the law, at least in its current state, provides belligerent forces with ample legal “space” for using decisive combat power. While I might disagree with some of her conclusions about actual U.S. compliance with the law during air operations, Read the rest of this entry…

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A Constructivist Theory of International Law?

Published on September 23, 2015        Author: 

Janina Dill’s Legitimate Targets? International Law, Social Construction and US Bombing (2015) is a rich treatment of challenging terrain. It is difficult to do this excellent book justice by focusing on only some of the many threads that it so skillfully weaves together. Still, I limit my comments to one aspect of the book: the theoretical framework that it develops in the first two chapters.

The book tackles one of the enduring puzzles concerning the operation of international law (IL) in international relations (IR): “How can law make a difference in international relations, where states create legal rules that accord with their interests and normative beliefs, while no central authority enforces those legal rules that do not?” (19)

Janina proposes to solve the puzzle by advancing a theory of IL’s “behavioural relevance” (41), i.e. a theory that explains how IL can make a counterfactual difference by prompting actors to behave differently than they would have done had they simply followed their interests or normative beliefs (349). At different points in the book, Janina stakes out other, even more ambitious, goals. Notably, she asserts that her theory will also show how IL differs from other types of social ordering, thus taking up fellow constructivist Martha Finnemore’s pointed question “Are Legal Norms Distinctive?” (2000). Perhaps most sweepingly, she labels her project a “constructivist theory of international law” (Chapters 1 & 2) and a theory of “what law is” (31, 63). I explore each of these theoretical claims below.

A Theory of IL’s Behavioural Relevance

Janina’s effort to identify IL’s impact must be understood against the backdrop of contemporary IR theory. For Janina, the main strands of IR theory, notwithstanding major differences, share the assumption that states’ motivations for creating and complying with IL are outside of the law (27). What may seem to be inspired by law, is actually driven by prior interests (for realists and rational institutionalists) and/or normative beliefs (for constructivists). For most IR scholars, therefore, law does not provide an independent reason for action – it is “causally dependent” (28).

This relatively dim view of IL is not unique to IR scholarship. Read the rest of this entry…

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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. Read the rest of this entry…

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This Week: Discussion of Janina Dill’s Legitimate Targets? International Law, Social Construction and US Bombing

Published on September 22, 2015        Author: 

Dill bookOver the next few days, we will be hosting a discussion of Janina Dill’s book, Legitimate Targets? International Law, Social Construction and US Bombing. The commentaries on her book will be by Jutta Brunnée (University of Toronto), Geoffrey Corn (South Texas College of Law). We are grateful to all of them for participating in the discussion.

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A Response to the Discussants

Published on June 5, 2015        Author: 

The responses to The Thin Justice of International law from four international lawyers and two philosophers represent a welcome continuation of the dialogue I have tried to catalyze with my book. Most of the comments were directed to the theoretical framework, rather than my individual conclusions about the justice of particular norms. So I will focus on those broad concerns. At the same time, I hope readers will also judge the framework not merely in abstracto, but by how well it handles the individual norms that it appraises. If its discussions and conclusions about the justice of the rules on force, self-determination, sovereign equality, IO membership, and other topics prove convincing or at least set some terms for future debates, then the framework will have done what I wanted it to do.

The comments raise so many points that I can only address them briefly here. I will try to tackle them thematically, in a way accessible to readers of both blogs.

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Response to Ratner: “An international lawyer has got to dream…it comes with the territory”

Published on June 4, 2015        Author: 

The premise of Steven Ratner’s book is that political philosophers have paid scant attention, in their reflections on justice, to international law. Ratner seeks to correct this, by offering an account of international law in terms of philosophical conceptions of justice. The premise would only be true if one understood political philosophy as beginning with John Rawls. In fact, as the great jurist Hersch Lauterpacht wrote in his seminal 1927 essay “Spinoza and International Law”, “the relation between political theory & international law is of a more pervading character than is commonly assumed.” From Thucydides (see his intricate account of claims of treaty violation in relation to the start of the Peloponnesian Wars), through de Vittoria, Gentili, Grotius, Pufendorf, Montesquieu, Rousseau (a great innovator in humanitarian law), Kant, through the 20th century debates about global order between Carl Schmitt, Leo Strauss and Alexandre Kojeve, political thinkers – sometimes also jurists –have engaged with conceptions of legal order beyond the state.

What Ratner understands as “political philosophy” is what is conventionally accepted as such by the mainstream in philosophy departments in American universities. While political philosophers in the past have questioned the “state”, its meaning, its place in human order, Ratner simply accepts the “state,” and that international law is and will remain the law of a state system. Even the contemporary philosophers of global justice to whom he refers have imagined federative or democratic conceptions of world order, or have attempted to theorise forms of transnational political organization, above all the European Union. Mainstream international legal professionals may well be comforted by Ratner’s book in being confirmed that the status quo that they represent and reproduced can be defended as “thin” justice, or perhaps more properly, rough justice. Others will question whether there is any real philosophical grounding to Ratner’s efforts to control or cabin their dreams of a better world or their critiques of the actual one.

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A Comment on Ratner on International Justice

Published on June 4, 2015        Author: 

What if we took the justice of international law seriously? This is the gamble that Ratner makes in his new and exciting book, which proposes a theory not of international justice per se nor of the nature of international law, but of the nature of the justice that is in international law. I should say from the outset that I think this is a worthwhile pursuit and that Ratner’s book can serve as a useful bridge between international lawyers and global justice theorists. Whilst the former traditionally profess to not be particularly interested in questions of justice, they have always flirted with the notion that international law is somehow just; and whilst justice theorists have long proceeded happily to devise theories that are oblivious to international law as it is, one cannot say that the result has always been felicitous. At any rate, this is a conversation worth having and it is interesting to have that particular book written by an international lawyer who is open to normative theory rather than the other way round, at least for the purposes of engaging the international legal discipline.

Ratner is nothing if not methodical, moving with great circumspection alongside what is in the end quite a narrow path. The book is rigorous, honest and searching, even as its author ultimately does not shun from taking positions. Its breadth of knowledge and intuition is stupendous, and it is constantly challenging analytically. One of the most deserving aspects of the book is the way in which the theory is deployed systematically to test the ethical character of existing norms. In the end, some rules are judged more ethical than is commonly assumed, and others insufficiently so. Ratner does not shy from the conclusions to which his theory leads him, and is forthcoming about what the theory cannot be expected to achieve.

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International Law’s Empirically Generated Justice: Natural Law Theory Reinvented

Published on June 2, 2015        Author: 

The weight of any argument or theory that is empirically grounded is unparalleled. In contemporary legal discourses, no argument or theory fares better than an empirical one, that is when its foundations can be validated by facts, practices, and existing institutional arrangements – which are, on that occasion, considered self-sustaining. This is what is called empiricism. International lawyers have long understood the argumentative convenience of empiricism, which has accordingly been thriving in contemporary international legal thought. Only international lawyers amenable to the natural law tradition have continued to prefer to ground legal argumentation in normative and theoretical postulates and have played down the foundational role of facts, practices, and existing institutional arrangements which, in their view, cannot be self-sustaining. It is accordingly no surprise that the resilient debates between mainstream empiricists and moralists have been revolving around the validating role of these facts, practices and institutional arrangements.

This dichotomous image of the structure of international legal argumentation is challenged by The Thin Justice of International Law (hereafter TJIL) written by Professor Steven Ratner. Indeed, in this book, he offers us an elegant refinement of the natural law tradition in international law by seeking to bridge the abovementioned divide between empiricists and moralists in international legal thought. It will however be argued in the following paragraphs that the most innovative aspect of TJIL does not lie with the stylish blend of empiricism and morality it relies on but rather with the epistemic union between international lawyers and moral philosophers which it calls for.

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Thin is beautiful – or are international lawyers anorectic?

Published on June 2, 2015        Author: 

Thin and thick and the two-pillar test

Steven Ratner’s book measures international core norms against a standard of “thin justice”. That justice is thin, because it is less demanding than the standard we would use to judge domestic law and domestic institutions, “it is a justice that reflects the thinness of the community in which it operates” (p. 90, see also p. 416). The distinction between domestic thickness and international thinness is inspired by and parallels Michael Walzer’s thick and thin morality. Ratner does not espouse a radical cosmopolitanism which claims that the standards of justice need to be independent from state boundaries, and which would not allow for distinctions based on the nationality of involved persons or on the territoriality of situations.

In the book, Ratner undertakes three operations: First, he identifies and fleshes out the thin-justice-standard. Importantly, “thin” does not mean “procedural” only, but has some substance. The standard consists of two principles or “pillars”, as Ratner calls them. The first pillar is the advancement of international and intra-state peace, the second pillar is the respect for basic human rights. In addition to a norm’s capacity to further peace and/or human rights, Ratner (at some places) employs two additional criteria: procedural fairness, as an expression of internal morality vis-à-vis participants and as an outgrowth of the rule of law (p. 409), and/or the prospects of such a norm for compliance.

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