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The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access

Published on December 16, 2016        Author: 

The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict is, as we know from the tragic images of human suffering in Syria broadcast almost daily, both timely and beneficial. Greater clarity on how international law frames the rights and obligations related to humanitarian relief efforts can only be positive. Indeed, this effort will ideally contribute to the objective of mitigating civilian suffering caused by the deprivations that seem almost inevitable during armed conflict.

It was therefore with great interest that I reviewed the Oxford Guidance. I was generally familiar with the effort, having discussed the project with several of the authors last summer. At that time, I expressed my strong support for any effort that aids in clarifying legal aspects of humanitarian relief efforts. Clarity in this area is, as many know, sorely lacking, which produces inevitable uncertainty as to when, where, how, and under what conditions humanitarian efforts may be conducted in the midst of armed conflict. This effort will ideally enhance the humanitarian effect of these efforts, which is an objective that no reasonable person could conceivably object to.

Still, even these best efforts are unlikely to completely bridge the gap between the aspiration of maximizing humanitarian relief efforts and the reality of achieving this aspiration in the complex and chaotic environment of military operations. So in this comment I will seek to focus on several aspects of the Guidance that I consider most significant to achieving the obvious primary objective of this effort: to reduce impediments that prevent or delay humanitarian relief operations and thereby exacerbate civilian suffering.

It seems that the true, “decisive point” of the Guidance is the discussion of consent: when and under what circumstances is a party to an armed conflict lawfully permitted to deny consent for the conduct of humanitarian relief operations? And as the Guidance indicates, there is no easy answer to this question. I’m sure the drafters would have preferred to propose an interpretation of international law that indicated an absolute obligation to facilitate such relief efforts when needed to avert severe humanitarian suffering. To their credit, they did not, because they cannot. 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…