CIAO DATE: 05/2013
Volume: 24, Issue: 1
February 2013
Nothing is ever simple in the Middle East in general, and the Arab-Israeli conflict in particular. The rather tired parable of the frog and the scorpion as applied to this arena (‘This is the Mid East, not the Mid West', says the scorpion to the frog as they both drown) would be funny if it were not so sad; it can be applied to any number of protagonists in the conflict. Yet, in the case of the UNGA vote to ‘upgrade' Palestine to non-member observer state status, the politics are, strangely perhaps, somewhat less knotty than the law.
Preface (PDF)
Gabriella Blum, JHH Weiler
Michael Walzer's Just and Unjust Wars: A Moral Argument with Historical Illustrations was first published a little over 35 years ago. It is worth your while to take a look at the first edition - if you have one, hold on to it fast: you are in possession of a veritable collector's item. Few scholarly works can claim to have shaped the moral convictions of a generation, but Walzer's Just and Unjust Wars is one of them. And it is likely to remain an intellectual and ethical beacon for generations to come.
Thucydides and Just War: How to Begin to Read Walzer's Just and Unjust Wars (PDF)
Robert Howse
Thucydides is usually considered a realist thinker who denies a meaningful place to right or justice in international relations. In Just and Unjust Wars, however, Michael Walzer develops a powerful critique of realism through an engagement with Thucydides. This article compares Walzer's treatment with Leo Strauss's anti-realist interpretation of Thucydides, suggesting many similarities between Walzer's approach and Strauss's. Both Walzer and Strauss hold that, even in war, necessity does not eliminate meaningful margins of moral choice. Strauss's much more expansive treatment of Thucydides helps us appreciate the subtleties of Walzer's terse argument against realists.
JHH Weiler, Abby Deshman
The question whether jus in bello and jus ad bellum should interact, or remain in hermet ically sealed spheres, has generated a voluminous and vociferous body of contemporary literature. The goal of this article is to take a step back from the particulars of the arguments and examine the shape and direction of the debate itself. We trace how the debate has evolved in response to political culture and sensibilities, focusing in on paradigmatic points throughout the 20th century. In each era the discussion on how these two areas of law should, or should not, intersect arises. And contrary to what might be implied by the recent debate where both sides often rely on ‘fundamental principles', the dialogue regarding the relationship between jus in bello and jus ad bellum is not a static argument. The discourse is dynamic and politically contextualized - impacted by, and impacting upon, the external controversies of the day. Certain consistent threads have guided the debate - first order political interests, institutional considerations, and consequences, and a legal and sociological conservativism run throughout. Distinct visions and assessments of the morality of war and who is to blame for its evils and how best to work towards peace also push and pull the flow of debate. Frequently, the positions on jus in bello and jus ad bellum serve as proxies for deeper or shallower courses of discussion. And although the contemporary discourse is more fractured, these same influences are discernable today.
A Non-Response to Weiler and Deshman (PDF)
Marko Milanovic
This short article comments on Joseph Weiler and Abby Deshman's article on the debate whether there should be a wall of separation between the jus in bello and the jus ad bellum. Agreeing with Weiler and Deshman that the debate is quite polarized and at times coloured by a quasi-religious tone, this article reflects on some of the reasons for this intensity, including the fear among many international humanitarian lawyers that both the law and the profession are under near-existential threat.
From Right to Intervene to Duty to Protect: Michael Walzer on Humanitarian Intervention (PDF)
Terry Nardin
For Michael Walzer, arguing about war is political rather than philosophical, a matter of persuasion rather than proof. His discussion of humanitarian intervention since the publication of Just and Unjust Wars tracks political events and debates, including the transformation of a debate focused on the right to intervene into one about situations, like those in Rwanda and Libya, in which it might be wrong not to intervene. If there is a duty to thwart atrocities, based on a responsibility to protect, one must consider on whom the duty to intervene falls, whether it goes beyond rescue to repairing the harm or preventing further violence, and whether it might also extend to protecting people from other harms, at least when these are the result of violence. In discussing these issues, Walzer deepens our understanding of humanitarian intervention by treating it both as an aspect of just war theory and as a historic practice able to reconcile the rights of states and persons in the changing circumstances of political choice.
Moral Internationalism and the Responsibility to Protect (PDF)
Anne Orford
The post-Cold War era has seen the increased significance of moral argument as a force in international relations. Arguments such as those developed in Michael Walzer's Just and Unjust Wars have shaped debates about the relative weights to be given to non-intervention and human rights as core values of international law over the past three decades. This article analyses the form of moral internationalism that is exemplified by Walzer's work, and the ways in which that moral internationalism has sought to justify humanitarian intervention, foreign involvement in civil wars, regime change, and, most recently, the responsibility to protect concept. It concludes by exploring the political stakes of the turn to what Walzer calls ‘practical morality' as a basis for reforming international institutions and laws, and the ways in which new forms of internationalism are redrawing the realism/moralism map.
Pre-empting Proliferation: International Law, Morality, and Nuclear Weapons (PDF)
Michael J. Glennon
Michael Walzer is right that dwelling on the United Nations Charter's use-of-force rules constitutes ‘utopian quibbling'. But he is wrong that ‘practical morality' of the sort defended in his Just and Unjust Wars presents a useful analytic framework for addressing issues such as the advisability of using force to counter threats of nuclear proliferation. Walzer's moral evaluations do not meet the standard of consistency that he himself demands, and the foundational inconsistency of his moral appraisals produces the same context-oriented relativism that he rejects. Policy analysis offers a preferable approach because it makes fewer assumptions. Its vocabulary interposes no problematic metaphysical infrastructure between ends and means, and it generates no debate that is not directly pertinent to the decision at hand. However, neither international law, practical morality, nor a consequentialist calculus of national interest can eliminate the need for judicious choice and subjective judgement.
How Cyber Changes the Laws of War (PDF)
Jack Goldsmith
Michael Walzer's Just and Unjust Wars anticipated many problems and developments in the laws of war, but it understandably did not anticipate how the Internet and associated computer and telecommunications revolutions would change war or the laws that govern it. This article seeks to assess, in general terms, the ways that the rise of cyber exploitation and cyber attacks challenge prevailing conceptions of the laws of war.
Enforced Equations (PDF)
Dino Kritsiotis
This contribution to the symposium on Michael Walzer's Just and Unjust Wars: A Moral Argument with Historical Illustrations (1977) engages with Jack Goldsmith's assessment of cyber warfare in the context of both the jus ad bellum and the jus in bello. In so doing, its purpose is to register the intended significance of the moral argument contained in Walzer's text from the meaning of ‘war' that emerges from its pages; however, international law has long since abandoned this concept as the operational premise for the regulations offered by way of the jus ad bellum and the jus in bello, and Just and Unjust Wars is opened up to a much more rigorous reading of its contents - including the Afterword on ‘Nonviolence and the Theory of War' as well as a fuller inventory of the precedents actually used by Walzer in original and subsequent editions - that argue for a significance of the lessons of this work altogether more encompassing and enduring than may greet the reader on initial contact.
Regulating Resort to Force: Form and Substance of the UN Charter Regime (PDF)
Matthew C. Waxman
Much of the international legal debate about regulating force and self-defence takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favoured by some states, scholars, and other international actors and the fixed rules and processes favoured by others reflect not only competing assessments of threats and the policy utility of force wielded beyond the Security Council's authorization, but also different sets of interlocking, foundational assumptions about international law and the conditions for its effectiveness. These include differences over how legal-doctrinal form relates to external enforcement pressures and how it generates compliance pull within states. This article shows that exposing and prising apart some assumptions underlying doctrinal orientations - assumptions that are usually obscured or overshadowed when debates are framed in terms of substantive permissiveness versus stringency - opens and clarifies options for reforming the legal regime regulating force, and it proposes avenues of further analysis of doctrinal form in this area.
Regulating Resort to Force: A Response to Matthew Waxman from a 'Bright-Liner' (PDF)
Olivier Corten
This article exposes the difficulties raised by Matthew Waxman's article in correctly assessing what he designates as the ‘Bright-Liners' view. Three propositions will be detailed in support of this thesis. First, I will argue that (even) those who are considered as ‘Bright-Liners' recognize the existence of ‘grey zones' and the necessity to make some ‘balance' between different elements in each particular context. It seems therefore incorrect to distinguish the two tendencies according to this criterion. By contrast, it is true that most ‘Bright-Liners' will support a more restrictive interpretation of the existing rules prohibiting the use of force. But, as I will try to establish in a second stage, the arguments put forward in this restrictive approach are not always properly described by Matthew Waxman. Lastly, I will emphasize a major characteristic of the restrictive approach which, in my view, is underestimated in Matthew Waxman's article: the quest for a universal inter-subjectivity, which dictates the importance of basing one's analysis on the positions of numerous states and scholars from various parts of the world.
Imagining Warfare (PDF)
Paul W. Kahn
War and law enforcement refer to structures of the political imaginary before they refer to legal norms. In this article, I delineate the basic categories through which this framing of political violence takes place: the aesthetics of war, the subjectivity of the combatant, and the ethos of battle. Together, these elements produce a picture of what war is, what it is about, and what sort of rules should govern it. Today, however, the different elements no longer exist in relationships of mutual support. Political violence is no longer between states with roughly symmetrical capacities to injure each other; violence no longer occurs on a battlefield between masses of uniformed combatants; and those involved no longer seem morally innocent. The drone is both a symbol and a part of the dynamic destruction of what had been a stable imaginative structure. It captures all of these changes: the engagement occurs in a normalized time and space, the enemy is not a state, the target is not innocent, and there is no reciprocity of risk. We can call this situation ‘war', but it is no longer clear exactly what that means. The use of drones signals a zone of exception to law that cannot claim the sovereign warrant of war. It represents statecraft as the administration of death. Neither warfare nor law enforcement, this new form of violence is best thought of as the high-tech form of a regime of disappearance. Neither Clausewitz nor Kant, but Machiavelli is our guide in this new war on terror.
Drones and Imagination: A Response to Paul Kahn (PDF)
Samuel Moyn
In responding to Paul Kahn's article, ‘Imagining Warfare', in this issue, this article points out that features of contemporary drone warfare antedate the contemporary moment, especially in colonial warfare. For this reason, it is more a matter of the novel combination of these features than a fundamental shift in the nature of warfare that drones bring about.
The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum (PDF)
David Kretzmer
While force used by a state in self-defence must meet the demands of proportionality there is confusion over the meaning of the term in this, jus ad bellum, context. One source of confusion lies in the existence of two competing tests of proportionality, the ‘tit for tat' and the ‘means-end' tests. Since the legality of unilateral use of force by a state depends on the legitimacy of its aim - self-defence against an armed attack - the ‘means-end' test would seem more appropriate. However, there is no agreement over the legitimate ends of force employed to achieve this aim. Is the defending state limited to halting and repelling the attack that has occurred, or may it protect itself against future attacks by the same enemy? May a state that has been attacked use force in order to deter the attacker from mounting further attacks? The ‘means-end' test of proportionality rests primarily on the necessity of the means used to achieve legitimate ends. Disagreements over proportionality are in this context usually really disagreements over those ends. While the appropriate test in this context is generally the ‘means-end' test, in some cases, such as use of force in response to a limited armed attack, the ‘tit for tat' test of proportionality might be more appropriate. Finally, I show that little attention has been paid in the jus ad bellum context to the ‘narrow proportionality' test, which assesses whether the harm caused by the force outweighs the benefits to the state using that force. The apparent reason for this is the assumption that this question is only relevant in jus in bello. I argue that while necessity of the force used is indeed the main issue in jus ad bellum, there is still place for assessing narrow proportionality.
Multipurpose Self-Defence, Proportionality Disoriented: A Response to David Kretzmer (PDF)
Georg Nolte
The principle of proportionality cannot contribute to changing or multiplying the ends of a rule. Thus, Kretzmer's goal of (re-)constructing an up-to-date conceptual framework for the interpretation of the right of self-defence by recognizing, in addition to the traditional ‘halting and repelling' rationale, prevention, deterrence, and punishment as legitimate purposes of self-defence, would have to be achieved on the basis of the inherent persuasiveness of those alleged purposes. However, Kretzmer's ‘all relevant factors and goals' approach, to be applied within the framework of the principle of proportionality, would, in the typical non-judicially reviewed situation, probably lead to mutual recriminations that other actors have not taken all relevant factors and goals into account. This approach would then only provide an appearance of legality to spurious claims of self-defence. Instead, the principle of proportionality should continue be applied on the basis of a right of self-defence with a ‘halting and repelling' rationale. It can thus continue to serve as a language in which states and other relevant actors meaningfully exchange views on the specific problems in difficult cases. The principle of proportionality, in this understanding, is open enough to ‘fit all' modern forms of conflict.
Chapter VII½: Is Jus Post Bellum Possible? (PDF)
Antonia Chayes
This article addresses the question whether victory in war implies a post-conflict obligation to rebuild the vanquished society after war. And, if it does, what is the nature of that obligation? Is it legal, or moral, or a practical necessity for self-protection of the intervening international community? This article demonstrates that no legal requirement exists, and suggests that, while perhaps there should be a moral imperative, no such norm has yet been established. A dominant motivation seems to be to prevent recurrence of conflict that will threaten the international community. In other words, reconstruction efforts are aimed more at protection of the interveners than at the host-nation population. Paradoxically, even when support for military intervention has been lacking, international support does develop, although unevenly, for assisting social and physical reconstruction. But it is hard to find the type of action that might assure that conflict will not recur. Social and reconstruction activities seem haphazard and poorly planned. Policies seem to result from compromises among many political and economic interests. There is an obvious need for more effective planning and execution to achieve even the limited and self-interested goals that motivate the efforts in the first place.
What to Make of Jus Post Bellum: A Response to Antonia Chayes (PDF)
Guglielmo Verdirame
Post-conflict situations are not exempt from international law. This does not mean that the concept of jus post bellum can descriptively capture the existing regulation based on both general and specific rules. A normative case can however be made for the emergence of a generic obligation to reconstruct incumbent, at least in part, on the victors. This obligation would signal a shift from the Grotian paradigm in the international legal regulation of the post-war phase to a Kantian one.
Jus Post Bellum Proportionality and the Fog of War (PDF)
Larry May
This article begins by briefly discussing the general idea of jus post bellum norms before turning to discuss some of Michael Walzer's ideas about jus post bellum, particularly what he says, or could be construed to infer, about post-war proportionality. It also re-examines Walzer's discussion of the problems of post-war retribution and reconciliation. The article seeks to formulate and defend a post-war principle of proportionality, discussing how it relates to other proportionality principles, as well as to other jus post bellum principles. This leads to an examination of the fog of war, especially concerning Robert McNamara's calculations about the application of the principle of proportionality to the firebombing of Tokyo. I outline a general account of contingent pacifism that seems to me to follow from careful consideration of the jus post bellum principle of proportionality. The article closes by initiating a discussion of the prospects for the end of war in light of considerations about the justice of how particular wars should end.
Ruti Teitel
Taking Michael Walzer's and Larry May's reflections on jus post bellum as a point of departure, I explore here some of the limits of what might be called the inherited notion of jus post bellum. I then articulate a broader perspective for jus post bellum, influenced by thinking on transitional justice. I argue that, given the nature of modern warfare and the evident shift to wars of humanitarian intervention, the contemporary understanding is no longer limited to restorative ex post justice, but must also include forward-looking aims, and for this purpose the discourse of transitional justice is better suited.
The Use of Force under Islamic Law (PDF)
Niaz A. Shah
This article focuses on the use of force under Islamic law, i.e., jus ad bellum. Islamic law allows the use of force in self-defence and in defence of those who are oppressed and unable to defend themselves. In contrast, the offensive theory of jihad is untenable. Muslim states follow the defensive theory of jihad. Islamic law also allows, under certain conditions, anticipatory self-defence. Only the head of a Muslim state (a ruler or caliph) is allowed to declare jihad. Most of the current so-called declarations of jihad have been issued by non-state actors, e.g. Al-Qaeda, who have no authority to declare jihad. These declarations thus have no validity under Islamic law and, indeed, Muslim states are fighting these armed groups. Islamic law imposes certain restrictions on the use of force in self-defence, i.e., military necessity, distinction, and proportionality. Accepting an offer of peace and humanity are also relevant conditions.
Ambivalent Universalism? Jus ad Bellum in Modern Islamic Legal Discourse (PDF)
Andrew F. March, Naz K. Modirzadeh
In this paper, we discuss the trajectory of modern Islamic legal discourse on jus ad bellum questions, challenging the ideas that the choice is between either a defensive or an aggressive jihad doctrine, and that declaring and waging war is regarded in Islamic law as properly a matter to be monopolized by legitimate state authorities. The dominant modern doctrine of just war in Islamic legal thought is not quite as simple as a bare doctrine of mutual non-aggression. While it is understandable that many Muslims have been eager to conclude that the proper understanding of jihad in Islam is that it authorizes only defensive or humanitarian war, virtually indistinguishable from modern international norms, the reality of modern Islamic just war thinking is somewhat more interesting than this. In this paper, we introduce a third modern Islamic concept of just war that would permit war against a country that does not allow for peaceful proselytization of Islam within its borders, and discuss some of the ambiguities of this doctrine.
The Fog of Victory (PDF)
Gabriella Blum
What does victory mean today? How do we know who ‘won' the war and what does the winner win by winning? This article uses the prism of victory to view the transformation of the goals, means, and targets of war, and assesses the applicability of the conventional Just War doctrine (through the traditional laws of war) to the modern battlefield. Specifically, the article claims that the military and civilian components of war have grown so intertwined in both the conduct and ending of hostilities that the laws of war, with their emphasis on combat, are hard-pressed to offer a normative yardstick for a just modern war.
Some Observations on Gabriella Blum's 'Fog of Victory' (PDF)
Charles J. Dunlap Jr.
Gabriella Blum's brilliant article wrestles with the central question of modern conflict: what does victory look like, and whatever it looks like, what does it mean - or, perhaps more accurately, what should it mean? This brief article seeks to address her work through the lens of the author's military experience. That perspective would define victory in Clausewitzean terms, that is, the point at which a belligerent is compelled to submit his will to his opponent. As Blum points out, that seeming clarity is obscured in many modern conflicts involving non-traditional actors and warfighting methodologies. While the Just War doctrine resonates in the armed forces, the decision to go to war is largely considered a political matter beyond the military's purview. Jus in bello, however, does lie in the military's realm as much depends on the perception of rightness in contemporary conflicts if ‘victory' is to be obtained. Yet Professor Blum's central thesis about the importance of clear goals in contemporary conflicts remains undisturbed. Her further observation that ‘the problem of the fog of victory extends not only to international relations but also to domestic civil-military relations' has obvious and enduring relevance.
Coda: Can the Good Guys Win? (PDF)
Michael Walzer
Asymmetrical warfare poses many problems for soldiers and insurgents who would like to fight in accordance with current understandings of just war theory and the internationally recognized rules of engagement. Members of both groups complain that they cannot win if they stick to the rules. In fact, the rules, rightly understood, are consistent with military success. But, given the political character of modern warfare, it is important that public opinion is shaped by that right understanding so that just conduct is recognized and reinforced.
Roaming Charges (PDF)
We deal in EJIL with the world we live in - often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world.
Mark A. Drumbl. Reimagining Child Soldiers in International Law and Policy (PDF)
Leena Grover
The poster child for the international movement to end child soldiering is a dark-skinned pre-pubescent boy with an AK-47 slung over his shoulder, a victim of abuse who goes on to victimize members of his community through acts of atrocity, a weapon of the adult who forcibly recruited him and completely devoid of agency. Mark A. Drumbl, professor of law and director of the Transnational Law Institute at Washington and Lee University, aims in his book to dismantle this image and asks whether it accurately informs international legal and policy responses to this practice.
Eyal Benvenisti. The International Law of Occupation (PDF)
Gregory H. Fox
The first edition of Eyal Benvenisti's The International Law of Occupation, published in 1993, was the first thorough treatment of occupation law to appear in English in 30 years. Not since Gerhard van Glahn's volume of 1957 had a scholar comprehensively surveyed this critical area of law. An update was long overdue. The seemingly clear rules of the 1907 Hague Regulations and 1949 Fourth Geneva Convention appeared to be receding in importance, as few states in the post-World War II period acknowledged their status as occupiers; Israel's prolonged occupation of the Palestinian territories challenged the assumption of occupation as a temporary phenomenon; few governments ousted in recent occupations went into exile to await a return to power, thus calling into question occupation law's focus on protecting the prerogatives of the ‘de jure regime'; and occupiers had seemingly honoured the ‘conservationist principle' - the limitation on an occupier's legislative authority most famously embodied in Article 43 of the Hague Regulations - mostly in the breach. States themselves provided little help in making sense of these and other developments. The discussions of occupation law in the US and UK military manuals, for example, had not been updated since the late 1950s. With the striking exception of Israel in the Palestinian territories, occupation law appeared to be receding from relevance.
Anthony Cullen. The Concept of Non-International Armed Conflict in International Humanitarian Law (PDF)
Wolfgang S. Heinz
The objective of Anthony Cullen's work is to ‘remedy some of the confusion that exists surrounding distinctions that are used to differentiate between different types of non- international armed conflict' (at 3). He works towards developing a framework for the characterization of armed conflicts. The author is a research fellow at the Lauterpacht Centre for International Law and is participating in the joint British Red Cross and International Committee of the Red Cross project to update the collection of practice underlying the ICRC's study on Customary International Humanitarian Law.
Theodor Meron. The Making of International Criminal Justice. A View from the Bench (PDF)
Chris Stephen
‘[T]here is no question that what we write and when we write can only be explained by our own life experiences' remarks the author in the lecture which forms the introduction to the present book (at 3). Few people are better placed to write on the past and present of international criminal justice than Theodor Meron. President of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY') on two occasions (from 2003 to 2005 and from 2011 to the present) and a former member of the US delegation to the Rome Conference held in 1998 to establish the International Criminal Court (‘ICC'), Meron is a leading figure in international criminal justice and has played an integral part in its development.
Victor Kattan
Is There a Court for Gaza? is an edited collection of essays that grew out of a conference held in Rome in May 2009. The book has five parts and a foreword written by Professor William Schabas. Part I contains selected excerpts from the conference in Rome. Part II consists of articles on the Goldstone Report and Part III addresses the debate on Palestinian statehood with regard to the Article 12(3) declaration lodged at the International Criminal Court (ICC) in January 2009. Part IV looks at the Russell Tribunal for Palestine and Part V ends with some concluding remarks by John Dugard, the former UN Special Rapporteur for Human Rights in the Occupied Palestinian Territory. This collection of articles stands out from most books on the Israeli-Palestinian conflict because it is concerned with seeking justice for Israeli and Palestinian victims of human rights violations at an international court which has the ability to enforce its judgments against individuals. This is a new development in this long-running conflict, which has seen many high-ranking officials on both sides accused of committing war crimes and crimes against humanity escape the long arm of the law. With the exception of the advisory opinion of the International Court of Justice (ICJ) on the wall in 2004, for much of the conflict's history infringements of international law have been largely left to political institutions such as the UN Security Council (where the US has usually exercised its veto), the UN General Assembly, and the Human Rights Council in Geneva.
Burrough Hill (PDF)
Charlotte Innes
They raise the dead here, sifting earth, grain by grain, shard by shard. They’ve found those dark stains that mark the pits …