The Law of Armed Conflict

Constraints on the Contemporary Use of Military Force

Howard M. Hensel, Howard M. Hensel

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351886994
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho militar

Modern armed conflict has taken a variety of forms and occurs at a variety of levels, raising serious questions concerning the relationship between the law of armed conflict and the reality of contemporary warfare. Many contemporary armed conflicts are fought in pursuit of unlimited objectives, whereas other modern wars seek to advance limited goals. While in some cases modern wars are fought by traditional armies composed of clearly identifiable soldiers, often modern armed conflicts are waged by guerrilla or partisan fighters whose identities are easily confused with non-combatants. Terrorism is increasingly a characteristic manifestation of this contemporary warfare. In the broadest sense, contemporary warfare has raised often controversial and vexing questions concerning the applicability of the law of armed conflict and, when applicable, the interpretation of its principles and tenets. This engaging volume addresses some of the contemporary normative and legal challenges and problems associated with the application of the concepts of just war, the just conduct of war, and the law of armed conflict to 21st century warfare.

Chapter 1

Military Necessity and the War Against Global Terrorism

Gregory A. Raymond

Throughout history, political leaders have appealed to strategic necessities as a justification for violating international law. Pleas of necessity challenge the wrongfulness of an act on the basis that it was the only means of safeguarding a vital interest against a grave danger. Of all the areas of world affairs covered by international law, the laws of war are considered the most ‘subject to corruption by the rude pressures of necessity’.¹ As expressed in the ancient aphorism, Inter arma silent leges (In times of war the law is silent), statesmen and commanders in the field have long been tempted to waive legal prohibitions on the use of force to gain momentary advantages. Despite complaints that ‘military necessity’ is an ‘elusive blanket phrase’² and an ‘utter juridicial nullity’,³ appeals to its alleged demands continue to be a common feature of national security debates.

In the wake Al Qaeda’s September 11, 2001 attacks on the World Trade Center and the Pentagon, the concept of necessity has been employed by various members of the Bush administration to justify preemptive uses of military force against terrorists and the states that harbor them. Old security doctrines emphasizing deterrence and containment must be reassessed in the light of the attacks on New York and Washington, declared U.S. Secretary of Defense Donald Rumsfeld. ‘You cannot defend against terrorism’, he continued. ‘You can’t defend at every place at every time against every technique. You just can’t do it, because they just keep changing techniques and time, and you have to go after them. And you have to take it to them, and that means you have to preempt them’.⁴

The Bush administration’s new doctrine of preemptive warfare, as formally presented in the September 2002 National Security Strategy of the United States of America, has been characterized as a ‘profound strategic innovation’.⁵ Among its most innovative aspects is the conflation of preemption with preventive military action. A preemptive attack entails the use of force to quell or mitigate an impending strike by an adversary. Preventive action entails the use of force to eliminate any possible future strike, even when there is no reason to believe that aggression is planned or the capability to launch such a strike is operational.⁶ Whereas the grounds for preemption lie in evidence of a credible, imminent threat, the basis for prevention rests on the suspicion of an incipient, contingent threat. Israel’s June 5, 1967 surprise attack against Egypt is a classic example of military preemption. On the other hand, its June 7, 1981 raid on Iraq’s Osirak nuclear facility exemplifies the preventive use of military force. In the first case, Israeli leaders had evidence that an invasion was forthcoming and believed the costs would be devastating if Egypt landed the first blow. In the second case, they concluded that using force before Iraq fabricated nuclear weapons was preferable to risking war under less favorable conditions later.

Although the Bush administration describes its new security strategy with the language of preemption, the president and his foreign policy advisors have disclosed that it contains elements of prevention. The United States, they insist, will not wait for the final proof of an impending strike.⁷ Strategic necessity counsels using America’s unparalleled military strength against emerging threats before they are fully formed, even if Washington has to act unilaterally. As Deputy Secretary of Defense Paul Wolfowitz bluntly put it: ‘Anyone who believes that we can wait until we have certain knowledge that attacks are imminent has failed to connect the dots that led to September 11’.⁸ Preventive intervention against what the administration calls ‘gathering’ (as opposed to imminent) dangers is a strategic imperative. In the words of President George W. Bush, ‘We must take the battle to the enemy and confront the worst threats before they emerge’.⁹

During certain historical periods, prevailing international norms have accepted appeals to military necessity; at other times they have restricted its use. Given the dominant position of the United States in the world, an American policy of preventive intervention could exert enormous pressure to expand the notion of ‘inherent right’ of self-defense contained in Article 51 of the United Nations Charter, pushing international norms toward a more permissive interpretation of military necessity.¹⁰ The purpose of this study is to examine the formation and decay of those international legal norms that justify acts of violence through appeals to military necessity. After defining the concept of military necessity, it will trace the evolution of international norms pertaining to its use, and then analyze the impact that the Bush national security strategy will likely have on the prescriptions and proscriptions contained in those norms.

Necessity and the War Convention

Political interaction among nation-states occurs within an anarchic setting. Although states vary in putative strength, they are juridicial equals whose sovereignty is not superseded by any higher authority. Nevertheless, even in the absence of such an authority, their behavior is circumscribed by a structure of acknowledged normative standards. Those standards that guide the conduct of belligerents are what Michael Walzer calls the ‘war convention’.¹¹

The substance of the war convention is grounded in the international community’s expectations about armed combat, expectations that are most explicitly set forth in prevailing legal norms. International norms are generalized standards of conduct that delineate the scope of a state’s entitlements, the extent of its obligations, and the range of its jurisdiction by prescribing certain actions but proscribing others.¹² Rather than simply being modal forms of state practice, they embody collective expectations about the proper activities of states.

To conceptualize international norms in this way is to see them as a medium through which generally held beliefs about acceptable forms of behavior are transmitted to members of the state system. The specific subset of norms that concern us here are the legal precepts that comprise the war convention. Reduced to their essence, these norms are ‘a form of communication’ that is ‘stored in memories that include treaty collections, statute books … and treatises on international law’.¹³ They contain interrelated linguistic symbols arranged in propositional form that provide generic perceptual categories through which events are given meaning. How we interpret right and wrong conduct in war is through the perceptual categories furnished by international norms. They supply a shared frame of reference on the way states should or should not behave in specific military situations.

The aim of the war convention is to place normative restraints upon the conduct of war by delineating when it is legitimate for states to use deadly force, how it should be used, and against whom it may be applied. Periodically, attempts are made to circumvent these restraints by citing the exigencies of necessity. Appeals to necessity challenge the wrongfulness of an act on the basis that it was the only means of safeguarding an essential interest against a grave and imminent peril. It was this meaning of necessity U.S. Secretary of State John Quincy Adams conveyed when he defended American military actions in Spanish Western Florida during 1818. His sentiments were echoed a century later by British Secretary of State for War Lord Kitchener, who insisted: ‘We must make war as we must; not as we should like’.¹⁴

In order to sidestep normative limitations on the use of force, the doctrine of military necessity has been invoked by political and military leaders alike. Chancellor von Bethmann-Hollweg of Germany, President McKinley of the United States, as well as such famous commanders in the field as Napoleon and Sheridan are among those who have drawn upon the logic of military necessity to justify their actions. References to the doctrine have appeared in international treaties (e.g., Article 23 [g] of the Hague Convention IV), the judgments of international tribunals (e.g., the Hardman incident of 1910 [Great Britain v.the United States]), military field manuals (e.g., Kriegsbrauch im Landkriege, General Staff of the German Army, 1902), and diplomatic notes (e.g., letter of September 6, 1814 from U.S. Secretary of State Monroe to British Vice-Admiral Cochrane regarding the burning of the village of Newark in Upper Canada). Since they may absolve a state from the nonobservance of international obligations, pleas of military necessity have been advanced to excuse behavior ranging from belligerent measures taken against an enemy to egregious breaches of neutral rights. For example, military necessity was invoked in 1854 by the United States to defend the bombardment of Greytown, Nicaragua; it was employed by Prussia to excuse the sinking of British colliers in the Seine during the Franco-Prussian War; it was used by Great Britain to justify mining the North Sea during World War I; and it was conjured up by Germany to excuse the devastation of the Somme region during the retreat of 1917.¹⁵ In each of these episodes the defense that was mounted represented a variant of the maxim, Necessitas non subditur legi (Necessity is not subject to the law).

Traditionally, those invoking necessity to excuse the nonobservance of international obligations have claimed that national self-preservation justified their actions. Although many legal scholars consider the doctrine of self-preservation ‘overdue for elimination from the vocabulary of the international lawyer’,¹⁶ those who argue from defensive necessity claim that ‘no other obligation ought to outweigh … [one’s] own safety’).¹⁷ In the Nitisara, for example, the ancient Hindu writer Sukra maintains that for reasons of self-preservation a leader may have to wage a treacherous war (Kuta Yudha), where ordinary limits on the conduct of hostilities do not apply.¹⁸ According to Sukra and virtually all subsequent members of the realist school of thought, political leaders are agents of the state charged with the responsibility of guaranteeing its survival; hence they cannot be judged by the same standards that apply in an ordinary citizen’s private life.

Typical expressions of the argument from necessity have the form ‘Circumstances required that I do X.’ The rhetorical strategy behind this form of argument is to frame situations of circumscribed options as situations where no alternatives exist. This creates an opportunity to bypass moral considerations as the discourse is moved from the conditional (‘My choices are limited to options X, Y, and Z.’) to the categorical (‘I have no alternative but to do X.’). In effect, the strategy attempts to blur the difference between expediency and real necessity.¹⁹ Whereas the former involves doing what is advantageous based on considerations of utility, the latter implies that one cannot help but act in a certain way in order to survive. By shifting the discourse in this manner, an effort is made to relieve the actor of responsibility. Once expedient actions are masked as being unavoidable, the actor is insulated from criticism so long as others accept the proposition that he or she is not accountable for acts performed under compulsion. ‘Praise and blame are accorded to voluntary acts’, noted Aristotle in a famous expression of this view, ‘but involuntary acts are accorded pardon, and at times pity’.²⁰

Of course, not everyone is persuaded by efforts to cloak expedience as a strategic necessity. In particular, people who subscribe to deontological ethics do not accept necessity as a license for violating restrictions on how wars should be fought. Moral duty, from their perspective, imposes an absolute injunction that is independent of any advantage gained by ignoring restrictions on battlefield practices. Take, for instance, the behavior of Gaius Fabricius, the Roman consul, who on the eve of a battle in 278 BCE with King Pyrrhus of Epirus, turned down an offer from a Greek deserter to poison the king. Waging war by devious means is morally w...