Hostname: page-component-78c5997874-8bhkd Total loading time: 0 Render date: 2024-11-05T08:51:19.400Z Has data issue: false hasContentIssue false
  • English
  • Français

Behaviour in war: The place of law, moral inquiry and self-identity

Published online by Cambridge University Press:  20 July 2015

Dale Stephens
Get access Rights & Permissions [Opens in a new window]

Abstract

Daniel Munoz-Rojas and Jean-Jacques Fresard's study “The Roots of Behaviour in War” (RBW Study), which came out in 2004, provided very useful insight into how compliance with international humanitarian law may be better ensured. In essence, it emphasized the role of “the law” and associated enforcement mechanisms in achieving optimal results. Emphasis on “persuasion” regarding the values underpinning the law was identified as having a possibly corrosive effect and was to be de-emphasized, if not avoided. Such conclusions raise serious questions. The study's reliance on neutral normativity of “the law” can be overstated. The issue may be less one of checking aberrant behaviour under the law and more one of ensuring that unnecessary harm is curtailed within the law. The assumptions made by the RBW Study concerning the efficacy of the law are too narrow in their avoidance of the moral and ethical questioning that can accompany legal interpretative approaches. The role of identity and professional culture offers an effective means of ensuring restraint under the law. This article argues that the RBW Study has not stood the test of time and that operational developments have transcended the conclusions made in the study.

Keywords

IHL interpretationmilitary legal culturelegal theorycounter-insurgencyethics and identity
Type
Triggering behavioural and structural change – analysis of assumptions
Information
International Review of the Red Cross , Volume 96 , Issue 895-896: Generating respect for the law , December 2014 , pp. 751 - 773
Copyright
Copyright © icrc 2015 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Munoz-Rojas, Daniel and Fresard, Jean-Jacques, “The Roots of Behaviour in War: Understanding and Preventing IHL Violations”, International Review of the Red Cross, Vol. 86, No. 853, 2004 (RBW Study)Google Scholar.

2 Ibid., p.198.

3 Ibid.

4 Ibid., p. 200.

5 Ibid., p. 203.

6 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II); Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV).

7 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, 8 December 2005, 2404 UNTS 261 (entered into force 14 January 2007) (AP III).

8 As of March 2014, there were 173 States party to AP I, 167 to AP II and 66 to AP III.

9 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, and Vol. 2: Practice, Cambridge University Press, Cambridge, 2005, available at: www.icrc.org/eng/war-and-law/treaties-customary-law/customary-law/index.jsp.

10 This term was originally used by Gerry Simpson, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law, Polity, Cambridge, 2007.

11 David Kennedy, Of War and Law, Princeton University Press, Princeton, NJ, 2006, p. 143.

12 John Rawls, Political Liberalism, Columbia University Press, New York, 1993, pp. 7, 9 and Chap. 6.

13 Modirzadeh, Naz K., “Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance”, Harvard National Security Journal, Vol. 5, No. 1, 2014, p. 235Google Scholar.

14 Martti Koskenniemi, “The Silence of Law/The Voice of Justice”, in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, The International Court of Justice and Nuclear Weapons, Cambridge University Press, Cambridge, 1999, p. 501.

15 RBW Study, above note 1, p. 198.

16 H. L. A. Hart, The Concept of Law, 2nd ed., Oxford University Press, Oxford, 1994.

17 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, George Schwab (ed), University of Chicago Press, Chicago, 2005 (originally published as Politiische Theologie: Vier Kapital zur Lehre von der Souveranitat, 1922).

18 Ronald Dworkin, Law's Empire, Belknap Press of Harvard University Press, Cambridge, MA, 1986.

19 Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty, Columbia University Press, New York, 2012, p. 78.

20 R. Dworkin, above note 18, pp. 247–248.

21 A useful outline of these methods is found in Ratner, Steven and Slaughter, Anne-Marie, “Appraising Methods of International Law: A Prospectus for Readers”, American Journal of International Law, Vol. 93, No. 2, April 1999, p. 291CrossRefGoogle Scholar; a fictional IHL problem was used to reveal different modes of analysis and outcomes from, inter alia, the positivist school, the New Haven school, the international legal process school, critical legal studies, international relations/international law approaches, feminist jurisprudence and a law and economics perspective.

22 A famous example is Holmes, Oliver Wendell, “The Path of the Law”, Harvard Law Review, Vol. 10, 1896–97, p. 457Google Scholar.

23 Dinstein, Yoram, “The Principle of Distinction and Cyber War in International Armed Conflicts”, Journal of Conflict and Security Law, Vol. 17, No. 2, 2012, p. 272CrossRefGoogle Scholar.

24 See “Forum: The ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law”, New York University Journal of International Law and Policy, Vol. 42, No. 3, 2010Google Scholar.

25 Nils Melzer, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009.

26 Luban, David, “Military Necessity and the Cultures of Military Law”, Leiden Journal of International Law, Vol. 26, No. 2, 2013, p. 1CrossRefGoogle Scholar.

27 Ibid.

28 Permanent Court of International Justice, The Case of the S. S. Lotus (France v. Turkey), Ser. A., No 10, 7 September 1927.

29 D. Luban, above note 26, p. 23.

30 Ibid., p. 22.

31 Hutchinson, Allan C., “A Postmodern's Hart: Taking Rules Skeptically”, Modern Law Review, Vol. 58, No. 6, 1995, p. 803CrossRefGoogle Scholar.

32 McLaughlin, Rob, “‘Giving’ Operational Legal Advice: Context and Method”, Military Law and Law of War Review, Vol. 50, No. 1–2, 2011, p. 110Google Scholar.

33 Altman, Andrew, “Legal Realism, Critical Legal Studies, and Dworkin”, Philosophy and Public Affairs, Vol. 15, 1986, p. 209Google Scholar.

34 The Martens Clause first found expression in the Preamble to Convention (II) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning Laws and Customs of War on Land, 29 July 1899, 187 CTS 429, 1 Bevans 247 (entered into force 4 September 1900), as reproduced in the ICRC database, available at: www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=9FE084CDAC63D10FC12563CD00515C4D.

35 Cassese, Antonio, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?”, European Journal of International Law, Vol. 11, No. 1, 2000, p. 187CrossRefGoogle Scholar.

36 ICTY, Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić and Vladimir Šantić, Case No. IT-95-16-T, Judgment, 14 January 2000, available at: www.icty.org/x/cases/kupreskic/tjug/en/kup-tj000114e.pdf.

37 Ibid., para 518.

38 Ibid., para. 524.

39 Ibid., para. 525.

40 Ibid., para. 536.

41 Schmitt, Michael N., “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance”, Virginia Journal of International Law, Vol. 50, No. 4, 2010, pp. 795, 820–822Google Scholar.

42 See, generally, Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society, revised ed., Back Bay Books/Little, Brown & Co., New York, 2009.

43 Coker, Christopher, “Biotechnology and War: The New Challenge”, Australian Army Journal, Vol. 11, No. 1, 2004, p. 134Google Scholar.

44 See generally Johns, Fleur, “Guantanamo Bay and the Annihilation of the Exception”, European Journal of International Law, Vol. 16, No. 4, 2005, p. 613CrossRefGoogle Scholar.

45 Simon Critchley, The Faith of the Faithless: Experiments in Political Theology, Verso, London, 2012, p. 104.

46 Mark Bowden, “The Killing Machines: How to Think about Drones”, The Atlantic, September 2013, available at: www.theatlantic.com/magazine/print/2013/09/the-killing-machines-how-to-think-about-drones/309434/.

47 O'Driscoll, Cian, “A ‘Fighting Chance’ or Fighting Dirty? Irregular Warfare, Michael Gross and the Spartans”, European Journal of Political Theory, Vol. 11, No. 2, 2011, p. 112CrossRefGoogle Scholar.

48 Antonio Damasio, Descartes' Error: Emotion, Reason and the Human Brain, Vintage, New York, 2006, Introduction.

49 Greene, Joshua, “The Secret Joke of Kant's Moral Psychology”, The Neuroscience of Morality, Emotion, Disease and Development, Vol. 3, 2007, pp. 35, 48Google Scholar.

50 In light of this legal requirement, it seems supremely ironic that in the development of autonomous systems, including autonomous weapons systems, considerable attention is given to creating algorithms that include a component for emotion. Sandra Clara Gadanho and John Hallam, Emotion Triggered Learning in Autonomous Robot Control, University of Edinburgh, 2001, pp. 2–3, available at: http://homepages.inf.ed.ac.uk/rbf/MY_DAI_OLD_FTP/rp947.pdf.

51 RWB Study, above note 1, p. 202.

52 The U.S Army/Marine Corps Counterinsurgency Field Manual, University of Chicago, Chicago, IL, 2007 (COIN Manual), p. xxv.

53 Ibid., pp. 37–39, 42–43, 49–50; The U.S. Army Stability Operations Field Manual, 3-07, University of Michigan Press Edition, 2009 (Stability Operations Manual), pp. 1–29.

54 David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One, Oxford University Press, Oxford, 2009, p. 145.

55 Stability Operations Manual, above note 53, pp. 1–1, 1–2, 1–3.

56 D. Kilcullen, above note 54, pp. 30–34.

57 MNF-I Guidelines, in MNF-I Commander's Counterinsurgency Guidance, 21 June 2008, reproduced in Thomas E. Ricks, The Gamble: General David Petraeus and the American Military Adventure in Iraq, 2006–2008, Penguin Press, New York, 2009, Appendix D, pp. 369–371.

58 D. Kilcullen, above note 54, p. 38.

59 Sitaraman, Ganesh, “Counterinsurgency, War on Terror, Laws of War”, Virginia Law Review, Vol. 95, No. 5, 2009, p. 1779Google Scholar.

60 COIN Manual, above note 52, p. 252.

61 RWB Study, above note 1, p. 202.

62 Goldsmith, Jack, “Sovereignty, International Relations Theory, and International Law”, Stanford Law Review, Vol. 52, 1999–2000, p. 984Google Scholar.

63 Goldsmith, Jack and Levinson, Daryl, “Law for States: International Law, Constitutional Law, Public Law”, in Harvard Law Review, Vol. 122, No. 7, 2009, p. 35Google Scholar.

64 Ibid.

65 Ibid.

66 Richard Price, The Chemical Weapons Taboo, Cornell University Press, New York, 1997, p. 110.

67 Finnemore, Martha and Sikkink, Kathryn, “International Norm Dynamics and Political Change”, International Organization, Vol. 52, No. 4, 1998, p. 895CrossRefGoogle Scholar.

68 Ibid., p. 901.

69 Kahl, Colin H., “How We Fight”, Foreign Affairs, Vol. 85, No. 6, 2006, p. 103CrossRefGoogle Scholar.

70 General Richard Myers, Eyes on the Horizon: Serving on the Front Lines of National Security, Threshold Editions, New York, 2009, p. 203.

71 Mark Osiel, The End of Reciprocity: Terror, Torture and the Law of War, Cambridge University Press, Cambridge, 2009, p. 335. (“In conversations among themselves, JAGs sometimes speak in candidly guild-like terms. ‘Who owns the law of war?’ rhetorically asks former My Lai prosecutor William Eckhardt at one such gathering. ‘We do: the profession of arms’, he immediately answers. ‘It's time to take it back,’ he adds, alluding to the Office of Legal Counsel's temporary, recent hijacking of the field.”)

72 Mauro Zamboni, Law and Politics: A Dilemma for Contemporary Legal Theory, Springer, Berlin, 2008, p. 90.

73 D. Luban, above note 26, p. 5.

74 Jack Goldsmith, Power and Constraint: The Accountable Presidency after 9/11, W. W. Norton & Co., New York, 2012, pp. 125–128.

75 In the Royal Australian Navy, for example, the number of permanent uniformed lawyers went from thirteen in 1989 to over fifty by 2012.

76 AP I, Art. 82 provides: “The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject.”

77 Noting that the so-called “war on terror” has spawned a considerable literature on locating various models of ethic commitment within public legal roles: see, generally, Radack, Jesselyn, “Tortured Legal Ethics: The Role of the Government Advisor in the War on Terrorism”, University Of Colorado Law Review, Vol. 77, 2006, p. 1Google Scholar; Wendel, W. Bradley, “Professionalism as Interpretation”, Northwestern University Law Review, Vol. 99, No. 3, 2005, p. 1167Google Scholar.

78 Jochnick, Chris and Normand, Roger, “The Legitimation of Violence: A Critical Analysis of the Gulf War”, Harvard International Law Journal, Vol. 35, No. 1, 1994, p. 395Google Scholar, citing, inter alia, General Colin Powell: “‘decisions were impacted by legal considerations at every level. Lawyers proved invaluable in the decision-making process’. At the war's conclusion, the Pentagon boasted that Coalition forces had ‘scrupulously adhered to fundamental law of war proscriptions’ in conducting ‘the most discriminate military campaign in history’” (citations omitted).

79 J. Goldsmith, above note 74, p. 126; see also Parks, W. Hays, “The Gulf War: A Practitioner's View”, Dickinson Journal of International Law, Vol. 10, No. 3, 1992, pp. 393, 394, 396–397Google Scholar. “Operational law is an area of the law born from the U.S. experience in the Vietnam War … [A]s a result of the My Lai massacre and subsequent investigations of it, in 1974 the Department of Defense … issued its first overall law of war directive. DoD Directive 5100.77 has set forth specific duties and responsibilities for law of war training for military personnel and the reporting of suspected violations of the law of war committed by or against U.S. personnel.”

80 Within the Australian Defence Force there exists a suite of operational law courses that are now mandatory as well as those that may be taken as an elective. See, generally, Australian Department of Defence, Military Law Centre, available at: www.defence.gov.au/legal/mlc.html; Asia Pacific Centre for Military Law, available at: http://apcml.org.

81 Graham, David, “A Long, Hard Fall from the Pedestal”, Joint Force Quarterly, Vol. 54, 2009, p. 30Google Scholar.

82 Dickinson, Laura, “Military Lawyers on the Battlefield: An Empirical Account of International Law Compliance”, American Journal of International Law, Vol. 104, No. 1, 2010, p. 1CrossRefGoogle Scholar.

83 Ibid., pp. 6, 8, 16, 18.

84 Ibid., pp. 10–11, 16.

85 Ibid., p. 24.

86 Charlesworth, Hilary, “Saddam Hussein: My Part in His Downfall”, Wisconsin International Law Journal, Vol. 23, No. 1, 2005, p. 143Google Scholar.

87 Kraugerud, Hanne A., “Shields of Humanity: The Ethical Constraints of Professional Combatants”, Journal of Military Ethics, Vol. 10, No. 4, 2011, p. 266CrossRefGoogle Scholar.

88 Ibid., p. 271.

89 Ibid., p. 268.

90 Blum, Gabriella, “The Role of the Client: The President's Role in Government Lawyering”, Boston College International and Comparative Law Review, Vol. 32, No. 2, 2009, p. 278Google Scholar.

91 Leff, Arthur Allen, “Unspeakable Ethics, Unnatural Law”, Duke Law Journal, Vol. 6, 1979, p. 1229CrossRefGoogle Scholar.