1. Introduction
Should we rely on law to render our conduct morally acceptable? In war, international law (IL) closely follows conventional just-war theory (JWT) and permits the deliberate killing of combatants during the conduct of hostilities regardless of their individual liability to that fate.Footnote 1 JWT has recently come under intense criticism for, therefore, failing to ensure the moral acceptability of combat operations. What is referred to here as the revisionist critique of JWT has fallen on such fertile ground, because it represents the bold yet compelling attempt to apply in war a moral standard whose pertinence to international relations (IR) is decreasingly contestable and the regulation of which IL is, therefore, under pressure to afford: the preservation of individual rights.
The response by many lawyers and philosophers to the revisionist critique has proceeded from the intuition that it is practically impossible to uphold this standard during armed conflict. Michael Walzer, the most prominent proponent of the old orthodoxy, has summarized his criticism in the following words: ‘What [the revisionist critique of JWT] . . . provides is a careful and precise account of what individual responsibility in war would be like if war were a peacetime activity.’Footnote 2 This paper accepts that preserving individual rights is the correct moral standard for IR and the touchstone of successful regulation by IL. The task at hand is hence to concretize Walzer's contention by uncovering the characteristics that make war ‘not a peacetime activity’, i.e. impossible to legally regulate in such a way as to avoid large-scale violations of individual rights.
This paper shows that armed conflict between states often takes the form of what I refer to as an ‘epistemically cloaked forced choice’ regarding the preservation of individual rights. If it does, IL cannot – and should not attempt to – regulate conduct with a view to avoiding violations of individual rights. Introducing this concept, the paper hence definitively establishes what it is about war that makes IL unable to ensure its moral acceptability. Based on that knowledge the paper proposes to accept international humanitarian law (IHL)Footnote 3 with its current limitations for situations that resemble such a scenario, but to delimit its applicability. For any situation that is not a quintessential war, i.e. does not present an epistemically cloaked forced choice, regulation by IL can and should aim to avoid violations of individual rights, which means transcending IHL altogether.
The argument in this paper proceeds in four steps. I begin in section 2 by outlining the logic combat operations would have to follow if they were to be morally acceptable according to the standard adopted here, meaning they do not involve the unjustified infringement of individual rights, and show that it is impossible for IL to impose this logic. Section 3 demonstrates that IL cannot guarantee that deliberate killings during hostilities can ex ante lay claim to a lesser-evil justification either. Section 4 identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterizes such situations as presenting an epistemically cloaked forced choice regarding the preservation of individual rights. Indeed, given the moral standard adopted here, in such situations regulation by IL should not aim higher than IHL currently does. The final section shows that, even if IR underwent radical institutional progress, many confrontations between states inevitably would still take the form of an epistemically cloaked forced choice.
2. International humanitarian law and the individual-liability justification
IHL, through the principle of non-combatant immunity, buys relative protection for a large segment of society in war – all civilians – by permitting deliberate lethal attacks on individuals belonging to another segment of society – all combatants.Footnote 4 In this respect IL is in tune with conventional JWT.Footnote 5 Walzer justifies this distinction with the explanation that combatants as ‘a class are set apart from the world of peaceful activity; they are trained to fight, provided with weapons, required to fight on command.’Footnote 6 A combatant has ‘allowed himself to be made into a dangerous man’.Footnote 7 According to conventional JWT, it is hence their increased threat potential/decreased vulnerability that warrants combatants’ loss of immunity and their radically different treatment vis-à-vis civilians.
The distinction between combatants and civilians according to IHL is not fully congruent with a difference in threat potential/vulnerability of individuals.Footnote 8 But even if all combatants were in fact more threatening and less vulnerable than all civilians, that IHL is satisfied with these criteria as a justification for deliberate killing in war suggests that the preservation of individual rights is not its foremost concern. From a liberal, individual-rights-affirming point of view, the infringement of someone's right to life is only morally justified if the individual is liable to being killed. If we ground the ethics of war in individual rights, deliberate attacks should not be directed against all, and only, combatants, but against all, and only, individuals liable to loss of their life.Footnote 9 While the logic according to which conventional JWT as well as IHL propose to distribute the deliberate harm that is inevitably inflicted in any war is one of ‘mere distinction’ (between combatants and civilians), revisionist critics propose a logic for the distribution of harm that takes account of individual liability.
According to McMahan, ‘[t]o say that a person is morally liable to being harmed in a certain way is to say that his own action has made it the case that to harm him in that way would not wrong him, or contravene his rights.’Footnote 10 In peacetime an individual is generally considered liable to be killed only if she is (i) responsible for contributing to an (ii) unjustified threat, and (iii) lethal attack is a proportionate and necessary response to the threat.Footnote 11 Revisionists hold that this standard naturally also applies in war.Footnote 12 Combatants who fight without a just cause or who resist a just attack are responsible for contributing to an unjustified threat to the combatants on the other side and are hence liable to defensive harm, which may include lethal attack.Footnote 13 By implication, if combatants use force in defence of a just cause, they do not forfeit their right to life and should remain immune.Footnote 14
If it were rigorously implemented, this ‘logic of individual liability’ would ensure that warfare, as far as deliberate attacks are concerned, does not involve large-scale violations of individual rights. The logic of individual liability, contrary to the ‘logic of mere distinction’, can hence lay claim to attempting to provide a way to wage war in a morally justified manner, if the moral standard is the preservation of individual rights. Since I accept the latter as true, the next logical step would be to change IHL with the aim that it impose on combat operations the logic of individual liability rather than, as it currently does, the logic of mere distinction.
Since the logic of individual liability takes account of the cause for which a belligerent fights, implementing it would mean taking down the barrier between the legal regulation of the conduct of war and the resort to force, which would produce a number of widely discussed practical problems.Footnote 15 The only legal justification for resort to force without a mandate from the UN Security Council is self-defence.Footnote 16 If we set more restrictive requirements for the side fighting without a claim to self-defence, those would never be applied. Belligerents often enter into wars because they mistakenly believe they are legally permitted to do so. Even if one side were aware that they were in want of a legal justification, the decision to nevertheless go to war suggests that the stakes are high and that scruples that could prevent the unjust belligerent from using the law for just belligerents are in short supply.
Deliberate disregard or voluntary misapplication of a legal rule, even if it is likely and explicable, does not affect its validity. However, the question whether a belligerent in fact has a legal justification for resort to force is, even when approached in good faith, often difficult to answer. In order to attach legal significance to an individual's decision to fight for her state if the latter had no claim to self-defence we would in fairness need to overcome fundamental epistemic uncertainties around the concept of self-defence and its collective, pre-emptive, and preventive variations.Footnote 17 McMahan suggests the establishment of an international court that in a timely and effective manner adjudicates questions of just resortFootnote 18 – in this particular context it is immaterial that his understanding of legitimate resort, of course, implies the broader concept of just cause, rather than self-defence as permitted under IL.
It may, in theory, be feasible for an international court to authoritatively determine for every war which side has a claim to self-defence. However, even if that were the case, so that combatants on one side could be sure that they were contributing to an unjustified threat, it would still be far-fetched to think that they all contribute enough either to the overall threat of waging an aggressive war or to individual battlefield encounters that threaten just combatants on the other side to warrant forfeiture of their right to life.Footnote 19 Besides the fact that individuals’ causal connection to the overall war and/or threats to individual just combatants might be indirect or slight, in many cases death, wounds, or trauma would not be necessary and proportionate responses. In Lazar's words: ‘[I]f the laws of war should mirror the liability view, then they must be not merely asymmetrical, but completely individuated both to the agent and to the specific act.’Footnote 20
McMahan does not claim that a precise distribution of harm in accordance with each individual's liability is possible. He instead argues that since imposing harm is inevitable, small differences in liability among those we can target make all the difference and should determine who is harmed. In this context, Lazar has claimed that the logic of individual liability faces a dilemma ‘borne out of the equally minimal responsibility of many combatants and noncombatants for the objectively unjustified threat posed by their belligerent state’.Footnote 21 If the threshold for liability to be killed is low enough to justify the intentional killings of a significant number of combatants on the unjust side, then many civilians lose their immunity from direct attack as well, because they can be expected to bear some responsibility for the initiation of the war. That combatants and civilians alike could be targeted, would create a scenario Lazar conceives of as total war.Footnote 22 On the other hand, if the liability threshold was so high that it would preserve non-combatant immunity, not enough combatants would be legitimate targets of attack either and we would end up having to endorse pacifism.Footnote 23
In my view, the fundamental problem does not lie with uncertainty about where to locate a threshold of liability to being killed. If it were at all possible to connect harm inflicted in war to individual moral status, even imperfectly with a simple threshold of liability past which one can be attacked, it is not at all the case that we would end up in anything resembling total war. There would merely be a group of different people who were permitted to be intentionally killed (not combatants as such, but all, and only, those civilians as well as combatants above the threshold of liability). If such an imperfect version of the logic of individual liability could be implemented, there would be no reason to also uphold the principle of non-combatant immunity.
The reason why McMahan is nevertheless reluctant to give up non-combatant immunity, and Lazar equates such a scenario with total war, is presumably that even an imperfect version of the logic of liability that merely directs all harm toward those liable above a certain threshold is impossible to implement. Identifying individuals’ contributions would require the attacker to possess intelligence about the inner details of the adversary's society that warring states usually do not have. However, we could ask each belligerent to designate those contributing above a certain threshold among their own citizens, as they now designate some of them as combatants. Alternatively we could even delegate that task to an unbiased third party, for instance, a sort of international fact-finding commission. It might then in theory be possible to determine individuals’ contribution to the war, i.e. their causal involvement in posing an unjustified threat.
However, I have so far brushed over the requirement that individuals not merely unwittingly or accidentally, hence innocently, contribute to the threat that their state poses to another, but that they do so responsibly. What does it mean to be responsible for one's contribution to an unjustified threat in such a way that one forfeits one's right to life? On a spectrum of liability just above the innocent threat is the individual who voluntarily chooses to act in a way that foreseeably contributes to a threat – what Lazar refers to as agent-responsibility.Footnote 24 That is certainly the minimum requirement in order for a causal contribution to ground any liability. If we agree with McMahan that a court can legitimately and convincingly determine in advance which side in war is acting in self-defence, then all individuals on the other side who chose to take up arms on behalf of their state knowingly contribute to an unjustified threat and are prima facie agent-responsible.
But is this minimum enough? We still know nothing about individuals’ motives for fighting or potential excuses.Footnote 25 In other words, the culpability of the individual still eludes us.Footnote 26 It seems odd to discount excuses as part of a way to regulate war that derives its appeal from the claim to be giving the individual her moral due. However, if we required a culpable contribution to the unjustified threat, then regardless of whom we tasked with applying the logic of individual liability in a given scenario, the agent would require omniscience, rather than mere intelligence and good faith, to do so. The logic of individual liability, even if we accepted a threshold rather than a fully correct distribution of harm, would inevitably be misapplied.
What if we stripped down the logic of individual liability even further? Allocating harm according to individuals’ (causal) contribution to the war effort without regard to the attending responsibility or under the assumption of merely their agent-responsibility is very close to what the principle of non-combatant immunity proposes to do anyway (allocating deliberate harm imperfectly in accordance with individuals’ threat potential/vulnerability). Crucially, this stripped-down version of the logic of individual liability would lose much of its original appeal over the logic of mere distinction and could hardly lay claim any more to avoiding unjustified infringements of individual rights by giving each individual her moral due.
Why IL cannot offer a connection between individual moral status and the distribution of deliberate harm that is deeper than the one provided by the principle of non-combatant immunity or the stripped-down version of individual liability becomes particularly evident if we compare war to law enforcement in a domestic context. Focused on a single individual or a manageable group of delinquents, law enforcement is a vertical confrontation that is geared toward the individual in the first place. War, to the contrary, is fundamentally a horizontal physical confrontation between states, in which human beings are conceived of as members of a collective (their state), rather than as individuals who are to be treated according to their own liability.Footnote 27 Of course, human beings continue to exist as individuals with a moral status of their own, but in order for law to be able to distribute harm in accordance with the latter, it seems that we would have to make assumptions about the physical confrontation that place it outside the category of war.
3. International humanitarian law and the lesser-evil justification
Maybe the moral standard geared toward giving each individual her moral due, meaning to avoid altogether the violation of individual rights, is too strict to uphold for law in war and IHL does not after all have to afford it. The intuition behind the prevalent view that war can be morally justified, even though it inevitably violates individual rights – in other words the widespread reluctance to embrace pacifism even among revisionist just-war theorists – is that war may sometimes present the least bad overall solution to urgent problems.Footnote 28 This immediately raises the spectre of a consequentialist justification, which for many philosophers is an incurable taint in any argument. Most revisionist just-war theorists would eschew the notion that the infringement of some individuals’ rights to life, which the logic of mere distinction allows, can be justified with the achievement of a morally very important goal to which it contributes (for example, to halt a dictator's genocide against parts of a population).Footnote 29
But allowing a lesser-evil justification for killing in war does not necessarily amount to sanctioning the violation of individual rights for the purpose of general utility maximization. If we accept that war is only justified as the lesser evil when it preserves many individuals’ rights while violating some, individual rights remain the touchstone of the justification. The fact that in war many individuals’ right to life is at stake is generally considered a reason to doubt the applicability of consequentialist justifications. Yet, it can also be read as rendering consequences particularly important, specifically at the systemic level. In Thomas Nagel's words, ‘within the appropriate limits, public decisions will be justifiably more consequentialist than private ones. They will also have larger consequences to take into account.’Footnote 30 A law endeavouring to regulate conduct in war has very large consequences to consider.
Terry Nardin has criticized the field of practical ethics for its assumption that systemic-level decisions ‘should be guided and judged by the same principles that govern individual conduct’.Footnote 31 He holds that the principles that guide public affairs are distinct from those guiding individual ethics.Footnote 32 If any differentiation is warranted, it is certainly that while the individual may not normally justify her rights-infringing actions on the basis that they contribute to a greater good, it is a desirable feature of public policies, and by the same token of laws, that they are mindful of the consequences of their systematic implementation for individual rights. I propose that the infringement of individual rights can be justified as the lesser evil if the greater evil would consist of more violations of individual rights.
But can law ensure that killing in war is justified as the overall lesser evil in terms of individual rights infringements? War does not seem to be a mechanism for distributing harms and goods in a morally meaningful way between belligerent states; that is, according to some principle other than material strength subject to considerable chance. Not even if the regulation of conduct could draw on belligerents’ causes? Maybe this is where a stripped-down version of the logic of individual liability (that abstracts from responsibility and only looks at individuals’ causal contribution to either a justified or an unjustified threat) still beats the logic of mere distinction, despite its similarity with the principle of non-combatant immunity. Contrary to the logic of mere distinction, the stripped-down logic of individual liability remains asymmetrical and can, if it is respected, therefore guarantee that the right side wins.
What does it look like if, rather than combatants (on both sides), only those individuals are permitted to be attacked who contribute to an unjustified threat, as the stripped-down logic of liability would prescribe? The absence of a claim to self-defence at the level of the state would imply that the individuals fighting on this state's behalf may inflict no harm at all, except perhaps in a very narrow set of self-defence situations that arise in individual battlefield encounters.Footnote 33 In a physical confrontation according to the stripped-down logic of individual liability the outcome would be guaranteed to reflect a difference in moral status between the belligerent states, but a physical confrontation fought by such a rule – all combatants on one side are legally required to ‘hold still’, meaning they are not allowed to use their weapons to inflict harm in the face of their opponents’ attacks – hardly resembles war, a point to which I will return below.
Moreover, as soon as the individuals on the unjust side lay down their weapons (which this version of the logic of individual liability demands), they are not contributing to an unjustified threat any more and therefore cease to be open to attack by the just side. The latter, as a result, very quickly runs out of legitimate targets for attack. Rather than regulating war, this version of the logic of individual liability implies its prohibition. In practice, a law for the conduct of war that requires unjust combatants to hold still imposes an obligation on soldiers not to enter an unjust war in the first place. The logic of individual liability hence boils down to and makes redundant the prohibition of the resort to force for reasons other than self-defence.
What about a radically different logic? The goal is to guarantee that a war turns out to be the overall lesser evil in terms of unjustified infringements of individual rights: surely the best way to ensure that is to regulate conduct with a logic of efficiency that is geared toward the preservation of individual rights. Accordingly persons and objects would be legitimate targets of attack if their military engagement led to the direct and quick achievement of the end state that was determined to involve overall fewer unjustified infringements of individual rights, for instance, self-defence against a tyrant, or humanitarian intervention in a country in which the ruling elite commits widespread genocide. Whether or not it would actually be possible to implement such a logic, the most efficient way to achieve the best end state in terms of individual rights is for the other side not to inflict harm at all.
The conclusion is inescapable: the outcome of a physical confrontation does not necessarily, even likely, reflect the moral standing of the belligerents.Footnote 34 It is only guaranteed that the ‘right’ side wins if we allow the confrontation to be fundamentally asymmetrical (which excludes the logic of mere distinction). However, no matter how exactly we propose to get to the desired end state to be achieved, if that end state is the avoidance of individual rights violations, an asymmetrical logic allows only one side to fight (if at all). As long as we talk about international armed conflict, i.e. a horizontal confrontation between states, law cannot reliably bestow victory and defeat on states in accordance with whether overall they fight in favour of or against the preservation of individual rights.
4. International humanitarian law and epistemically cloaked forced choices
Legalized warfare is the international community's response of choice to calls for intervention in humanitarian emergencies and civil wars. When individual-rights-affirming liberals choose not to be pacifists and to advocate that the use of force should be available in certain contexts, they rely on IL to make war, which is widely accepted to be a morally problematic phenomenon, acceptable for the achievement of these very important goals in exceptional situations. This analysis suggests that this reliance on IL is to some extent misguided. All IL can do is distribute the harm inevitably caused in war among individuals on each side in accordance with the logic of mere distinction. IL cannot guarantee a moral standard in the outcome of the confrontation or even prejudge that outcome. Legalization leaves the moral question about war unanswered.
What is it about war that impairs morally successful legal regulation? The previous sections suggested that the impediment to implementing a logic for the conduct of hostilities that affords a lesser evil justification is related to the conception of war as a horizontal physical confrontation between states in which individuals on neither side are under an obligation to hold still. Holding still is the prescription that an asymmetrical logic premised on the preservation of individual rights inevitably boils down to.
Just-war theorists would say that technically one side does have a duty to hold still, the side without a just cause. And, of course, the lack of an obligation to hold still in IHL stands in contrast to general IL and its prohibition of the use of force in cases other than self-defence. We (most international lawyers, conventional just-war theorists, and some revisionists for now) only accept the symmetry of IHL, i.e. the absence of a duty to hold still for all individuals on the deviant/unjust side, because of the lack of effective and legitimate adjudication of self-defence claims/questions of just cause and ultimately the lack of law enforcement in the international order.
The role of this institutional desideratum in constraining IHL's regulation of war is universally acknowledged. However, does it mean that the limited reach of morality into war is a function of contingent features of the international order? Or is there something more fundamental about law and war and the moral standard of preserving individual rights that means they cannot come together? To specify the finding from sections 2 and 3 (because war is a horizontal confrontation between states it escapes legal regulation to a standard of moral acceptability) I propose to frame the question – why accept the symmetry of IHL – normatively: under which circumstances should law not appeal to all individuals on one side of a confrontation between states and command one belligerent state to hold still?
I argue that this is the case if a confrontation (i) presents a forced choice in terms of the infringement of individual rights, and (ii) this forced choice is cloaked with an impenetrable veil of uncertainty as to which side in the confrontation ought to hold still in order for overall fewer unjustified infringements of individual rights to occur. These two characteristics (a forced choice and an epistemic cloak) limit the reach of morality into war and account for the inability of IL to raise conduct in war to a standard of moral acceptability. In turn, if a physical confrontation between states has these two characteristics, it qualifies as war, ‘not a peacetime activity’. In that case, given the moral standard premised on the preservation of individual rights endorsed here, IL should not impose an obligation on one side to hold still. I will elaborate on these points in the following paragraphs.
What is a forced choice? An actor's choice is forced in situations in which, on the one hand, ‘there is a risk of great harm or loss and a need to act immediately or decisively if the loss or harm is to be averted’,Footnote 35 and, on the other hand, attempting to avert the harm likewise carries a risk of great loss or harm. What some authors describe as a ‘morally tainted environment’Footnote 36 or a moral dilemmaFootnote 37 is best understood as a situation in which, whether an agent acts or refrains from acting, he will inevitably commit a moral wrong.Footnote 38 One might argue that in these situations, for instance, fighting (and killing some non-liable individuals) or not fighting in a war that is meant to halt ethnic cleansing (and letting some non-liable individuals die), making the choice constituting the overall lesser evil (the course of action that, all things considered, involves fewer unjustified infringements of individual rights) can mean acting in a fully justified way. Here the second characteristic of war becomes relevant. A well-informed, impartial observer cannot determine with reasonable certainty, which course of action will in the end represent the lesser evil. This is what I refer to as an epistemic cloak.
If legal regulation prejudged the outcome of an epistemically cloaked forced-choice situation regarding the preservation of individual rights, it would necessarily do so according to a standard other than the moral standard of individual rights preservation endorsed here. It would hence potentially sanction an outcome that presents the greater evil in terms of individual rights violations. It is hence precisely because we stand fast on that moral standard that we should accept the symmetry of IHL in epistemically cloaked forced-choice situations.
From an individual presented with an epistemically cloaked forced choice what we morally expect is good intentions (wanting to actually bring about the end state that represents the lesser evil) and a good-faith effort to do the right thing. If those obtain, we tend to think of any apparently wrongful actions or omissions as morally excused. Concerning whether the wrongfulness is actually illusory, we reserve our final judgement until the events have taken their course. If someone acts (or refrains from acting) with the right intentions, in good faith, and his choice also turns out to contribute to the achievement of a lesser evil, he can be considered fully morally justified.Footnote 39 An individual faced with an epistemically cloaked forced choice is morally excused; whether she is justified is a question of hindsight.
What can we legally expect from an individual in an epistemically cloaked forced-choice situation? While criminal law recognizes the difference between an excuse and a justification, a legal permission ex ante does not come in similar gradations. When law permits conduct, any apparent legal wrongfulness is illusory. Now, the killing of combatants in war is not merely legally excused, neither is the resort to force in self-defence. It is legally permitted. The closest analogy in law to granting an ex ante moral excuse is a legal prohibition of killing in war tied to an exemption from prosecution and punishment. Should law be changed to prohibit killing in war altogether and merely exempt it from prosecution given the nature of an epistemically cloaked forced choice?
I argue that this analogy to the moral approach to warfare would make for poor law with regard to an important normative aim that legal regulation has besides rendering conduct morally acceptable: affording the rule of law. Understandings of the concept of the rule of law differ, but at its heart is the task of protecting the individual from the arbitrary power of the state. While it is hence tightly interwoven with the substantive moral goal of individual rights preservation, the rule of law also rests on certain formal characteristics of legal rules, one of which is that legal rules ought to be action-guiding. A law only protects the individual, if it tells her what she needs to do in order to avoid incurring prosecution or punishment. By permitting the killing of combatants IHL provides specific instructions about who falls under this category, how combatants are to be engaged, and where the permission to harm them ends.
But could a legal prohibition of killing in war and an exemption from prosecution specifically for killing combatants in certain ways and under certain circumstances not be similarly action-guiding? I think not. In law a state or society speaks to its individual members, expressing a societal consensus on what it means, all things considered, to act rightly in a certain situation.Footnote 40 Action guidance is thus more than merely telling the individual more or less exactly what to do; ideally law also to a certain extent ‘relieves the individual of the cognitive burden to form her own judgements’.Footnote 41 The latter is particularly difficult when facing an epistemically cloaked forced choice. IHL expresses the consensus that in such a situation killing individuals who are part of the category ‘combatants’ for the relative protection of civilians is preferred to a number of imaginable alternative courses of action. Sending mixed signals about that by first prohibiting the killing but leaving it without consequences later undermines the rule of law.
Should the formal benefits of the rule of law, here that it relieves the cognitive burdens on individual decision-making, not be subordinate to law's ability to guarantee substantive outcomes? The question is moot, because the formal benefits are all law can afford in war. Is affording the formal benefits of the rule of law then itself a moral goal? According to the standard adopted here, for the individual to know what to do – to be able to rely on law that is action-guiding – is certainly a moral benefit. This conclusion points to a more fundamental question: if symmetrical IHL with all the limitations of the logic of mere distinction is all IL law can offer for the regulation of war and legally regulated war is better than unregulated war (especially if regulation establishes the rule of law), does IHL not enjoy moral traction?Footnote 42
Henry Shue and Seth Lazar agree with the premise of this section: there is a non-contingent connection between the circumstances of war and the impossibility of consistently preserving individual rights; although neither of them offers a specification of what it is about war that grounds this impossibility.Footnote 43 Both Shue and Lazar then claim that morality absorbs the constraints of reality, meaning that specific or practical moral principles are those that take into account what is possible in the circumstances at hand.Footnote 44 In their view, the logic of mere distinction would hence accord with applied moral principles; the killings permitted by it would be, all things considered, morally justified.
In opposition to this view, I agree with McMahan that a moral principle does not change in the face of likely involuntary systematic violation or impossibility of application. The observations that an individual cannot fight in a war without infringing other individuals’ rights, and that any war cannot ex ante be guaranteed to constitute the lesser evil, do not change the fact that those infringements and the resort to war are morally unjustified. After all, ‘morality is all of a piece’;Footnote 45 our moral standards for evaluating action do not change depending on whether we are in war or in peace.Footnote 46 A moral ‘ought’ does not imply a ‘can-in-the-circumstances-at-hand’.Footnote 47 Yet, it is one function of law that the ‘ought’ it spells out does imply a ‘can-in-the-circumstances-at-hand’, as suggested above. One function of morality certainly is that it remains stable and intact no matter the contingent constraints of specific circumstances. It thereby continues to be available as a standard by which to judge law.
Jeremy Waldron holds that law that merely repeats morality ‘has an important ancillary role to play’.Footnote 48 That may under certain circumstances be true, but in the face of an epistemically cloaked forced choice, law that repeats morality merely repeats the latter's discomfiture. In an epistemically cloaked forced choice situation, which is per definitionem incurably morally tainted, law should diverge from morality, if it can thereby achieve action guidance, i.e. fulfil one of its specific morally relevant functions as law. While the goal of full moral justification for legal regulation cannot be met, the very important goal of affording the rule of law may still be within reach. Law can impose a standard other than morality, and it does so in war. Acknowledging that it does means acknowledging that effective, comprehensive and good-faith legalization does not guarantee that an activity is automatically morally acceptable.
5. The continuing role of international humanitarian law
The previous analysis suggests that IHL cannot and should not impose a logic other than the one of mere distinction when a confrontation presents an epistemically cloaked forced-choice regarding the preservation of individual rights. But is conceiving of war as an epistemically cloaked forced choice even empirically pertinent? Do armed confrontations between states in the international realm regularly take the form of epistemically cloaked forced-choice situations regarding the preservation of individual rights? I will demonstrate that they do by showing that, even if we had an effective executive and trusted judiciary in the international system – in other words, an institutional landscape approximating world government – epistemically cloaked forced-choice situations could not be avoided. By extrapolation many confrontations in the current international order take such a form. The argument in this last section is that IHL hence has an important continuing role to play.
Avoiding epistemically cloaked forced choices would first and foremost require identifying and then preventing or redressing states’ violations of their obligations under IL. That may mean dealing with states’ wrongful treatment of individuals (most likely their own populations). For two reasons it also means tackling states’ violations of their obligations toward other states. First, in the current international system the state still has a major role in protecting individuals’ rights. Second, states’ violations of their obligations under IL, even if those have initially no implications for individual rights, come to affect individuals if they result in an armed confrontation between states.
If we had institutions to authoritatively identify a state's violation of IL, for instance one that also infringed individual rights, the state found guilty by the international judiciary might not accept the cease and desist verdict. Redressing the violation might hence have to involve the use of force by an international executive. If during enforcement the state in violation of IL flouted its duty to hold still, we would then likely face a forced-choice situation, in that necessarily many individual rights would be violated in the confrontation, but at the same time, individual rights would be violated if the international executive refrained from intervening.
However, if the executive had the full weight of the international community behind it, the likelihood that the forced choice – whether or not to intervene – would also be epistemically cloaked would be significantly reduced. An intervention by a radically superior international executive would likely infringe fewer individual rights than a drawn-out battle between two states. It is important to note that a forced choice could only be considered epistemically cloaked if it was so even with the international community's backing of the side that did not violate IL.
Nevertheless, it is quite possible that the superiority of power afforded by international backing might be insufficient to lift the epistemic cloak. Alternatively, in a confrontation between two states that by itself forms an epistemically cloaked forced choice regarding the preservation of individual rights, it might genuinely be uncertain which side originally violated IL, or which one did so more seriously, so that it would be dubious for the international community to throw its weight behind one side. These scenarios would continue to present epistemically cloaked forced-choice situations even under circumstances resembling world government.
Moreover, two scenarios are possible in which the goal of individual rights preservation would clash with the goal of redressing states’ violations of IL. First, states may violate obligations under IL that do not initially implicate individual rights, but redressing those violations by force would involve the infringement of individual rights, if the violating state resisted enforcement. Standing by the moral standard of preserving individual rights might mean not redressing the violation of IL in this scenario. Second, a confrontation between two states is imaginable, in which overall fewer unjustified infringements of individual rights would likely be achieved if the international executive backed the side that had originally violated IL – for instance, if a very strong, but ultimately benign, aggressor annexed part of a neighbouring territory. Should the international community ever back a state that seriously violated IL, here the benign aggressor, in order to preserve individual rights, as this second scenario would require?
It seems that as long as states are subjects of IL, i.e. their rights and infractions matter alongside individuals’ rights, as long as the international community enforces IL vis-à-vis states rather than individuals directly, epistemically cloaked forced-choice situations cannot be completely avoided. Revisionist just-war theorists tend to point toward institutional desiderata in the international system as the reason why the logic of individual liability cannot yet be translated into law and be applied in armed confrontations between states. The preceding paragraphs suggest that, unless institutional progress involved the abolition of the state system, epistemically cloaked forced choices regarding the preservation of individual rights would persist. This in turn means that there would be a continuing role to play for IHL even if the international order developed toward world government.
IHL's important function notwithstanding, that it fails to accord with the moral standard of preserving individual rights is not unproblematic, specifically since that means IHL is increasingly out of touch with general IL. It is almost ‘commonplace’Footnote 49 that over the last half-century the emergence of a universal legal system has started to supersede a traditionally much looser set of bilateral legal relations between states. Legal concepts such as obligations erga omnes, jus cogens and a presumption against persistent objectors bear testimony to the qualification of the role of state consent in IL.Footnote 50 This qualification has gone hand in hand with the gradual consolidation of the notion that the individual should be the ultimate beneficiary of international legal regulation.Footnote 51 While the state remains the law's main addressee, the consensus is ever wider that IL ought to be geared toward securing individual rights, a trend which is sometimes referred to as a humanization of ILFootnote 52 or its individualization.Footnote 53 Many international lawyers therefore concur that ‘in our time, one cannot place full trust in traditional IHL’.Footnote 54
One result of the fact that the cavalier approach of IHL to individual rights has rendered it increasingly unpalatable is the encroachment of human rights law (HRL), the epitome of an international order geared toward the individual, on IHL's area of regulation. Traditionally IHL was considered lex specialis in relation to HRL, meaning that the latter ceased to apply in times of war.Footnote 55 However, this understanding no longer prevails. Though never definitely illuminating how exactly the two branches of IL are meant to interact, the ICJ has solidified the understanding that HRL continues to be relevant in armed conflict and that IHL is merely for the time of hostilities superimposed over it.Footnote 56
The most significant challenge to IHL as providing the sole standard for the treatment of individuals in war has stemmed from the practice of HR bodies that adjudicate cases in the context of internal armed conflicts.Footnote 57 The ECtHR, for instance, has investigated countless cases in the context of internal armed conflict using the language of IHL to put flesh on the bones of what it means to satisfy the demands of HRL during internal armed conflict.Footnote 58 By eschewing explicit reference to the Geneva Conventions and the First Additional Protocol the Court has avoided resorting to legal instruments other than the European Convention and upheld the standard of HRL in internal armed conflicts.Footnote 59
It is now majority opinion that HRL applies ‘wherever a state exercises power, authority or jurisdiction over people and not simply in its national territory’.Footnote 60 As a result, HRL does not cease to apply in international armed conflict either. The case law of the ECtHR in this context is much thinner, but is bound to increase in the near future. The Court investigated alleged HR abuses under the ECHR in the context of the Turkish invasion of Northern Cyprus,Footnote 61 and the air war by NATO countries against the Federal Republic of Yugoslavia.Footnote 62 In late 2011 the court accepted the application of Georgia against Russia.Footnote 63 The former alleges indiscriminate and disproportionate attacks in Abkhazia and South Ossetia in an international armed conflict under the regulatory purview of the First Additional Protocol. Moreover, more than 2000 cases against Georgia related to the conflict with Russia are currently pending before the court.Footnote 64
Some international lawyers hold that the application of HR standards in war and the enmeshment of the two systems mean that ‘the long-standing separation of both systems may have outlived its usefulness’ and the two systems should converge.Footnote 65 Others argue for a more stringent interpretation of IHL, given the gravitational pull of an HR standard.Footnote 66 One such attempt is the interpretive guidance issued by the ICRC with regard to the notion of direct participation in hostilities stipulating that ‘the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances’.Footnote 67 Military practitioners have largely rejected this proposition, insisting that in armed conflict IHL as it currently stands imposes the highest achievable standard.Footnote 68
The argument presented in this paper carries two implications for this debate. First, changing IHL with a view to making it resemble HRL does not further the preservation of individual rights in war, if the armed confrontation presents an epistemically cloaked forced choice. Second, the best we can do for the preservation of individual rights in IR is to direct our academic efforts toward institution building. The goal is to prevent as many confrontations between states as possible from descending into epistemically cloaked forced-choice situations. Another goal should be to regulate to a higher standard those confrontations that do not present epistemically cloaked forced choices.Footnote 69 However, these are endeavours for a different paper. After all, I have not investigated whether IL is able to impose the logic of individual liability on those other confrontations.
How many epistemically cloaked forced choices can be avoided and the standard IL can impose on other confrontations is a function of the contingent features of the international legal order, namely its institutions. That not all epistemically cloaked forced choices can be avoided and that the best IL can do for those remaining is to impose IHL is more fundamentally a result of insisting on a moral standard that hinges on the preservation of individual rights in relations among states. In war we cannot rely on law to make our conduct morally acceptable.
