Book cover by Oxford University Press, background image by FLY:D on Unsplash.

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How Law Can Make War Inhumane and Banal

23.06.2021

War is governed by laws—laws that demand those engaged in armed conflict value humanitarianism and minimize civilian harm. When civilians are disproportionately killed in armed conflict, it’s because involved parties haven’t properly applied the law.

At least, this is what the conventional liberal narrative tells us. It has much to recommend it as an ideal. In reality, however, it may not fully reflect how the laws of armed conflict—also known as humanitarian law—actually work. In his new book, the War Lawyers, Craig Jones challenges the conventional narrative and demonstrates how the inhumanity regularly on display in war is, in fact, often a byproduct of the law itself.

War Lawyers focuses on how humanitarian law has been used by two countries: Israel—which is the world’s most militarized country—and the United States—which has the highest level of military spending of any state globally. In particular, the book explores and describes the relatively recent rise of military lawyers who advise on operations targeting individuals and objects during armed conflicts conducted by those two countries.

As Jones demonstrates, humanitarian law is created and shaped by the work of these military lawyers, who often exploit the malleability of humanitarian law to serve the military interests of their governments. As a result of the interpretative work of these lawyers, humanitarian law can and frequently has enabled and even extended violence. Rather than serving only as a restraint on state behavior, humanitarian law can be used to legitimize violence and justify the killing or injuring of civilians and destruction of objects of civilian life—like apartment buildings and schools.

These are some of the central insights from Jones’s book. But there are also other takeaways that are just as important, though more peripheral to or implicit in Jones’s writing. They include the pressing question of whether humanitarian law is, in fact, humane. They also include understanding the banality of the bureaucratic apparatus governing targeted killing and how it impacts the work of military lawyers. The two things are, in my view, intimately connected. Together, they suggest that, in the end, law and lawyers cannot rehabilitate or undo the dehumanizing nature of war and armed conflict. Instead, they point the way to a different solution to addressing the inhumanity of war, namely, a melding of the worlds of law and politics—a specifically anti-war politics.

Inhumane Humanitarian Law

Under humanitarian law, the protection of people takes precedence over military necessity. According to some, this humanitarian demand has long been a part of the law governing armed conflict. Other scholars dispute this view and argue that humanitarianism only began to meaningfully permeate the laws of armed conflict in the late 1970s and took another twenty or so years to become part of the legal Zeitgeist in the late 1990s.

Either way, the story of the triumph of humanitarianism in war isn’t accepted by everyone—mostly because not everyone agrees that humanitarianism has, as a factual matter, won the day.

I think the problem with the humanitarian narrative lies elsewhere, however (so does Jones, but more on that later). The problem, in my view, is with the fundamental way in which the law of armed conflict—even in its most robust humanitarian form—regulates killing in armed conflict. That approach is one that runs counter to the principle of humanity, which as Immanuel Kant articulated, means treating people “never merely as a means but always at the same time as an end.”

As Jones’s book lays out, at the heart of humanitarian law are four basic principles: military necessity—which limits attacks to strictly military objectives; distinction—which allows only for combatants and military objects to be directly attacked and requires they be distinguished from civilians and civilian objects, which cannot be directly attacked; proportionality—which prohibits attacks that would cause disproportionate or excessive losses to civilians or civilian objects compared to the anticipated military advantage of the attack; and humanity—which prohibits all suffering, injury, or destruction that is unnecessary to realizing legitimate military objectives (Jones, p. 29).

The basic tension at the heart of these various legal principles involves the incommensurable interests of protecting civilians and civilian objects from harm and allowing states to do what is militarily necessary in war. The International Committee of the Red Cross recognizes this tension, noting that “[m]ilitary necessity generally runs counter to humanitarian exigencies.” Humanitarian law does not, however, provide a reliable way of resolving this conflict. It does not define military necessity beyond giving vague guidance or provide specific guidelines for assessing proportionality in particular situations. Nor does it give definitive or clear ways of distinguishing between civilians and combatants when the dividing line is otherwise blurred.

These vague and indeterminate rules allow for much manipulation to suit military needs, as Jones’s book amply demonstrates. But it’s not simply the indeterminacy and malleability of the rules that are problematic. The very idea of weighing the taking of a human life against the so-called military advantage of doing so is a deeply moral question that the law reduces to a mathematical formula, a crude cost-benefit analysis.

This is because the balancing test humanitarian law sets out requires assigning a value to each element of the equation. Is the human life in question valuable enough? Is the military necessity important enough? In assigning finite value to life and calculating its worth against state interests, military targeting decisions render human beings—both combatants as well as innocent civilians—expendable and even replaceable resources in pursuit of the military advantage of states. This is exacerbated by the reality, which Jones’ demonstrates, that the calculation frequently comes out in favor of military necessity. Human life is almost always not valuable enough.

The different types of targeting decisions underscores how humanitarian law’s balancing test devalues human life and undermines the principle of humanity. Generally, there are two types of targeting: dynamic targeting, which is more time-sensitive and reactive; and deliberate targeting, which is planned in advance (Jones, p. 24). While dynamic targeting is more common than deliberate targeting, both are often “pre-emptive”—meaning the targeting typically does not focus on protecting ground troops from actual or very imminent attacks, but rather are aimed at preventing some kind of threat from emerging in the often undefined future. This future threat need not be discrete or clearly defined; it can be a general threat to a state’s national security interests or, as Jones puts it, involve “an extensive range of ambient threats.” (Jones, p. 244)

While attacks responding to non-immediate or imminent threats are controversial, humanitarian law’s balancing test does not forbid or exclude future, non-imminent threats from qualifying as valid military interests. The balancing test also does not require that attacks responding to non-imminent threats be valued less highly than the risks they pose to human life. By allowing human life to, instead, be subordinated to these kinds of military interests, humanitarian law’s balancing test undermines the notion that people are an end in and of themselves.

Of course, targeting decisions aren’t always taken to achieve some impersonal military advantage, but also to protect a state’s own personnel under immediate or very imminent attack. While humanitarian law doesn’t demand decision-makers value all life equally, in these situations human life is perhaps less instrumentalized. But even here, flexible approaches to what “immediate,” “imminent,” or “threat” mean can make the military necessity of the strike more impersonal and the instrumentalization of the victims of targeting decisions more probable.

An Inhumane Banality

Humanitarian law’s less than humane qualities are reinforced by the processes and procedures involved in military targeting decisions. The institutional environment that surrounds targeting decisions fosters detachment, both moral and psychological, between those involved in targeting decisions and the consequences of their actions.

This structural design includes the often banal nature of the targeting work military lawyers do. As Jones describes it, the targeting-related activities of military lawyers are often monotonous, their responsibilities routine and repeated day in and day out. According to Jones, this routinization “arguably facilitate[s] killing by rendering it banal and unremarkable, precluding external points of reference through which one might ordinarily be sensitized.” (Jones, p. 201).  So too the pressure military lawyers are under to quickly give targeting advice helps to eliminate or at least reduce the deliberative processes that may give rise to moral questions or hesitations, at least in the moment.

For military lawyers, this detachment from killing is further reinforced by the lawyer-client relationship. As all lawyers do, military lawyers serve their clients, namely, the military commanders and units to which the lawyers are attached. The military lawyer provides advice to the ultimate decision-maker, which may be their military commander or perhaps someone in Washington. This moral distancing, rooted in the bread and butter work of lawyering, can become a handy way for military lawyer to separate themselves from the life and death consequences of that “advice.”

As Jones’s book seems to suggest, this system of detachment seems to work, at least for some. In the process of researching and writing his book, Jones conducted over sixty interviews with military lawyers. Not one interview excerpt included in the book suggests, however, that any interviewees had substantial moral qualms or hesitations about the practice of legal targeting. Of course, there may be various explanations for this. Maybe Jones just didn’t ask these lawyers questions about moral or ethical conflict at all. Or, perhaps, they were worried about reprisals if they voiced their concerns.

Whatever the reason, the targeting system’s institutional design is likely, at least, one explanation for why moral and ethical questions, which are seemingly inherent to military targeting, are not central (or even present in) the testimonies published in Jones’s book—though that does not mean that some military lawyers do not question the moral and ethical consequences of their work.

Of course, war is itself inhumane, whether or not law or lawyers are involved. There is plenty of specific evidence to underscore the lack of humanity in U.S. wars in Iraq and Afghanistan, as well as Israel’s multiple wars in Gaza, which together are the focus of Jones’s study. The U.S. government’s military invasion and occupation of both Iraq and Afghanistan has, for example, brought lasting instability and insecurity to civilian life in both countries. While these realities would exist regardless of law, humanitarian law certainly has not alleviated those conditions.

Justice in War Is the Politics of Anti-War

Humanitarian law is not the only legal framework that has attempted to humanize war. Before the nineteenth century, many international law practitioners and scholars in the West subscribed to a different framework for making war more humane. This paradigm is known as “just war” doctrine—a theory with Christian theological underpinnings that allowed only “just” (as opposed to “unjust”) wars to be waged. Under traditional just war doctrine, as reflected in the work of St. Augustine, “peace should be the object of your desire; war should be waged only as a necessity and waged only that God may by it deliver men from the necessity and preserve them peace.”

Even though just war doctrine informed the laws of armed conflict, most (though not all) scholars believe it fell out of favor in the nineteenth century as positivism, which rejected religious or moral justifications for international law, became dominant. Since World War II, just war doctrine has re-emerged and existed alongside humanitarian law. It has continued to be explicitly embraced, albeit in different forms, by some states, like the United States, and some scholars, like Michael Walzer, who have tried to rehabilitate just war doctrine’s centrality to humanitarian law.

There is something to be said about bringing morality, in a robust and intentional way, into legal analyses of war. War does, after all, raise innumerable moral questions. At the same time, deciding what is or isn’t a just war is ultimately left to states themselves. Unsurprisingly, states tend to see wars they pursue as just wars and have used just war doctrine to justify their armed conflicts and even violate the basic tenets of humanitarian law.

Centering morality and ethics in war does not, however, mean it must necessarily be done through the law itself. Indeed, politics may provide a more effective vehicle for injecting moral and ethical considerations into war by making “peace…the object of [our] desire.” Unlike humanitarian law, politics is not only the purview of elites or state institutions. It is also people-driven and grassroots.

Jones’s last chapter features a tentative foray into this popular political world of war. In Jones’s view, “humanizing” law is a fool’s errand. This is, in part, because humanitarian law, in trying to humanize war, can foreclose the political processes that could actually end war. Indeed, this is how the law itself can more effectively and meaningfully limit and restrict war—through its pairing with, rather than disconnect from, an anti-war politics.

As Noura Erakat has shown, law’s emancipatory power is often tied to an emancipatory political project. In her book Justice for Some: Law and the Question of Palestine, Erakat argues that “politics are the forceful winds that mobilize change and [] law can be used in service of those efforts.” It is through this relationship with politics that law can make war humane—namely, by ending it.

Of course, law can also be paired with a less humanitarian popular politics—a politics that advocates for war. As Jones’s book shows, however, humanitarian law already serves the regressive political ends of states that actively and frequently resort to armed conflict. At least in the realm of popular politics, however, regressive uses of law can be countered with other political visions centering the protection of human life over and above the military interests of countries.

Law’s role in war is not pre-ordained. It is a dynamic force that can be deployed for multiple, often contradictory ends. Ultimately those ends are determined by forces outside the law. Those outside forces—in the form of a humanitarian, morally-centered politics—are perhaps the best hope for protecting people from the scourge of war: not laws governing the conduct of war deployed after war begins but law in the service of an anti-war movement aimed at ensuring wars do not start or that wars that have started are brought to an end.

 

Many thanks to Adil Haque for helpful feedback on this piece.

Author
Maryam Jamshidi

Maryam Jamshidi is an Assistant Professor of Law at the University of Florida, Levin College of Law where her work focuses on national security and international law.

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