‘New Battlefields, Old Laws’ – Debate on the Future of the 2001 AUMF

Please click on the link below to see this great post about 'New Battlefields, Old Laws' which was recently published on Opinio Juris. 

http://opiniojuris.org/2014/09/28/guest-post-new-battlefields-old-laws-debate-future-2001-aumf/

PART II – Dershowitz Analyzed: An Insufficiently Broad Condemnation of a Complicated and Malleable Regime

This post is the second of a three part series regarding Alan Dershowitz’s recent criticism of international law (to see his full remarks, please use the link in the last blog post). During this entry I intend to concentrate on some of Dershowitz’s observations on international law, both stated and implied, with a particular focus on their relevance to IHL. This response will address certain legal and philosophical issues expansive enough for many scholars to devote lifetimes too. I only attempt to scratch the surface on what I hope will continue to be a proactive, healthy and lengthy debate on these subjects. 

Dershowitz aptly notes that rationality must be understood as a product of perspective within a given context. However, this does not mean that certain ethical concerns in the name of humanity cannot be codified, ratified and generally implemented. The vast majority of the world’s nations have come together to create and advance numerous treaties and prohibitions delineating the use of force in conflict. The United Nations and Geneva Conventions are the best representations of this universal attempt to protect and advance humanitarian goals. Specifically, nearly every nation has agreed to adhere to the foundational principles of IHL: distinction, necessity, proportionality, and humanity. As Dershowitz knows well as a distinguished defense attorney, just because a small, even dangerous minority may not follow the law, it does not mean that the law itself has failed.

Nevertheless ethical norms that help define humanitarian aims are constantly changing. In this regard international law, unlike other legal constructs that may improperly constrain progressive applications due to their structural rigidity, is designed to recognize and usurp customary modifications. Along with ethical changes, technological advancement has completely altered the way war is both conceived and decided. Consequently who is most affected by war has changed dramatically. Today, the vast majority of casualties during armed conflict are civilian. It is not only logical; it is necessary for IHL to adjust to this reality in order to maintain relevance.

Dershowitz however, attacks this flexibility, arguing that international law has turned into a left-wing academic exercise in fantasy. This is, of course, patently false. Dershowitz is insinuating that a dichotomy exists between damage to the enemy and protection of civilians. Yet IHL as well as most of its scholars and practitioners do not see these concerns as contradictory or mutually exclusive. Additionally, IHL is embraced and advanced by almost every organized military in the world – codified in military handbooks, disseminated by military officials, regulated in the field by military advisors and officers, as well as explored in military institutions of higher learning. “Rational” operational concerns are both loudly and commonly voiced within forums aimed at advancing IHL – including our own IHLToday.com. The structure of IHL not only encourages military and state participation, it requires it.  

Dershowitz’s most potent and reasonable critique is that international law does not necessarily produce the most favorable outcome from a state’s individual perspective, thus diminishing both its practicality and value to this state. But is the law of war intended to serve individual states? If not, whom? This question has been contemplated since pagan antiquity. The best answer may be a non-answer. International Law’s structure is designed to preserve life – civilian or combatant. Doing so requires the cooperation of states (and increasingly non-state actors), international organizations as well as individuals. International law admittedly prospers when the reciprocity of its aims are respected by all relevant belligerents. However international law’s greatest successes have arguably occurred when one party to a conflict upholds this doctrine despite flagrant violations by its enemy.   

International law (IHL included) does not always provide a clear, practical or even beneficial (by its own stated goals) comprehension of the law. It is absolutely critical that we choose to address these situations as soon as possible by shaping IHL’s already pliable structure to ensure it suits both contemporary norms and conflict reality. Anecdotally, I fully admit that IHL is far from perfect. I personally acknowledge certain rare actualities where violating the law of armed conflict as it is currently appreciated is necessary to uphold its core principles (famously elaborated by Gabriella Blum). I do not believe that these circumstances warrant IHL’s broad dismissal or prejudicial condemnation. I believe they warrant dialogue. This is the very purpose of IHLToday.com. Please continue to follow, share and participate. 

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Alan Dershowitz – A Broad Critique of International Law

There is nothing quite like an assault on international law by one of the most renowned lawyers in the world – the Alan Dershowitz. His public dismissal of international law as “a construct in the mind of a bunch of left wing academics” occurred during a lecture at the Institute of National Security Studies in Israel. This lecture which was taped and uploaded to the Internet has now gone viral -- http://www.youtube.com/watch?v=bbzd0QIKACo. I’ve seen it most frequently touted on social-media sites by self-proclaimed Israel advocates particularly upset about the recent interim deal the United States made with Iran in Geneva. 

Though IHLToday.com deals with international humanitarian law (IHL) and advancing its operationalization through discourse between scholars and practitioners, not jus ad bello concerns, I believe we’d be remiss not to address the recent Dershowitz critiques which have broad and analogous relevance for IHL. Furthermore I believe his remarks underscore a great opportunity to advance IHL precisely because jus in bello issues are kept separate by the law itself from modern jus ad bellum quarrels over preemption v. prevention.

This and upcoming IHLToday.com posts in response to Dershowitz’s lecture will be broken into three parts. The first post will identify and develop Dershowitz’s comments and questions that are specifically relevant to IHL. The second post will attempt to address these observations critically. The third post will discuss what strategies and tactics IHL scholars and practitioners can use to respond to these critiques and advance IHL.

PART I – The relevance of Dershowitz’s Attack to IHL

Dershowitz’s scolding of international law (in its entirety) was passionately presented in familiar terms. His line of attack followed this logical progression: international law is only a “construct in the mind of a bunch of left-wing academics”; these academics aren’t rational because they are out of harms way, isolated and misattribute the world as universally good; consequently this has resulted in international law being both irrational, “anachronistic” and “never viable”; therefore states (specifically addressing Israel) do not and should not base their decisions on international law because it may not lead to the outcome best for them.

I want to address Dershowitz’s argument first from a theoretical perspective. During the lecture he said, (in reference to the rationality of Iran) “where one stands is a function of where one sat.” Here Dershowitz is simply suggesting that we are as humans and thus as nations, a product of our environment. In relation to international humanitarian law this stance questions the very notion of universality or what we fondly refer to as “humanity” and its many erudite variations. Can IHL truly register, codify and enforce humanitarian principles when said principles are a matter of perspective and thus not universal?

Dershowitz’s attack on international law is not just theoretical. It is also categorical. Essential to his argument is that international law is being formulated by people unequipped to dutifully address law realistically – i.e. left-wing academics. One could pose that his assumption is that these academics do not understand the operational concerns and challenges of states. To accurately assess this position, we must ask: what actors should be entrusted with the task of universalizing and institutionalizing ethical norms? Furthermore does IHL philosophically or structurally limit the influence of “certain” people? Should international law consider a different “distribution” of authority among decision-makers, academics, and potentially other actors?

Finally Dershowitz mentions that international law does not necessarily produce the most favorable outcome from a state's perspective – thus diminishing both its practicality and value. This leads us to questions surrounding the aim and consequent structure of international humanitarian law. Whose interest is the law of war intended to serve? Militaries, civilians, states, humanity… all of these groups simultaneously? Does international law face the credibility issues expressed and insinuated by Dershowitz? If international law is really so fatally flawed, is it in need of a dramatic overhaul? Should it be eliminated entirely? What will come to replace it?

Please stay tuned next week for the next installment. As always, your comments are welcomed below or in our forum!

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The Challenges of Determining What is "Excessive"

The principle of proportionality is a fundamental component of IHL, based on the notion that parties to an armed conflict do not have unlimited means in which to exact damage on an enemy. Nonetheless, civilian casualties during conflict are more than an on the ground reality, they are a consequence of a complex and ambiguous legal calculus recognized during hostilities. So how does IHL control excessive casualties? Article 51 (5)(b) of Additional Protocol I places this responsibility on the attacker, justifying resulting incidental civilian casualties and damage only if the concrete and direct military advantage anticipated is greater. Operationally this proportionality calculus has proven problematic. Especially difficult and commonly disputed is whether proportionality must take into account the entire conflict timeframe. This critical uncertainty can pose an incredible strain on governments, militaries and IHL. Furthermore, this ambiguity can result in additional casualties.

The challenges surrounding excessive casualties were discussed at NBOL’s 2013 workshop - The Operationalization of the Law: Enhancing the Symmetry between IHL and Military Operational Art - hosted at the ICT’s 13^th World Summit on Counter-Terrorism.

Highlighted are two quotes, one from Col. (Ret) Richard M. Whitaker, Judge Advocate, U.S. Army, and Mr. Anton Camen of the ICRC delegation in Israel. 

As always we encourage you to share your opinions in the comment section below.

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"Kill v. Capture"

Through a combination of interrelated yet multifarious factors, the “kill v. capture” debate has developed into one of the hottest topics related to the operationalization of IHL. These factors include the exponential development and usage of non-lethal weapons, the intensified effort of NGOs and IGOs to interpret IHL through the prism of human rights law (HRL), and the global media’s fascination with the casualties of asymmetric conflict. This was a featured topic at NBOL’s 2013 workshop – The Operationalization of the Law: Enhancing the Symmetry between IHL and Military Operational Art - hosted at the ICT’s 13^th World Summit on Counter-Terrorism. 

Highlighted are two opposing quotes from Mr. Anton Camen of the ICRC delegation in Israel and the Occupied Territories and Lt. Col. (GS) Chris de Cock of the Legal Dept., Belgian Armed Forces. 

Please share your perspective on this debate by using our comment section below.

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'Operational' Law

This special entry, our first post ever, does not follow the standard formatting of IHLToday.com. Instead, this excellent single entry from Prof. Geoffrey S. Corn provides a critical overview of the increasing significance of international humanitarian law (IHL) and its operationalization, highlighting both its advantages and disadvantages. His ringing endorsement of our initiative underscores how we expect to contribute to the advancement of IHL. Please use our comment section and share your valuable thoughts below.

Click the read more button below to read full opinion.