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Published online by Cambridge University Press: 19 March 2012
In the increasingly legalized landscape in which armed conflicts are now waged, international humanitarian law has become an integral and ever more central part of military strategy. States can and do use it to gain advantage over their adversaries, but must also contend with challenges that arise when it is wielded against them. In their efforts to respond to these challenges official and unofficial advocates of State powers have advanced modes of argumentation which question the fundamental structure of international humanitarian law. This Article takes issue with one such argument that mobilizes the theologico-political principle of the “lesser-evil” to conclude that acts which are absolutely prohibited under international humanitarian law should nevertheless be deemed legally permissible when their foreseen consequences are less harmful than lawful alternatives. The Article demonstrates that this argument threatens to blur IHL's sharp boundaries and expand its zone's of elasticity thereby undermining its structural principles. More specifically, the Article maintains that the argument in question rests on exaggerated faith in the judgment of belligerent parties, that it fails on its own utilitarian logic and that it ignores deontological reasoning fundamental to international humanitarian law. The Article contends that accepting this argument would severely compromise IHL's capacity to limit violence and preserve human dignity and therefore advocates that it be rejected.
1 Nagel, Thomas, War and Massacre, 1 Phil. & Pub. Aff. 123, 126 (1972)Google Scholar.
2 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations 262 (4th ed. 2006)Google Scholar.
3 HCJ 2690/09 Yesh Din v. Commander of the Military Forces in the West Bank (Mar. 28, 2010) Nevo Legal Database (by subscription) (Isr.).
4 The provisions alluded to prohibit the transfer of protected persons from occupied territory and mandate that the occupying powers' military courts must be located in the occupied territory and that protected persons accused or convicted of offences shall be detained in the occupied territories. See Articles 49, 66 and 76 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].
5 In HCJ 253/88 Sejadia v. Minister of Defense 43(3) PD 801 [1988]Google Scholar (Isr.) the Court had dismissed a petition contesting the practice of detaining Palestinian residents of the West Bank in Israel. A petition against the practice of holding arrest hearings for Palestinian detainees before military tribunals in Israel was rejected in HCJ 6504/95 Wajiya v. The State of Israel (Nov.1, 1995) Takdin Legal Database (by subscription) (Isr.).
6 In its judgment the Court noted that insistence on strict compliance with the aforementioned articles of Geneva Convention IV would be to the detriment of Palestinian protected persons (since this would require seizing private Palestinian land for the purpose of constructing detention facilities in the West Bank) as well as that of the detainees themselves (since conditions of detention in Israel are better secured than those that could be provided in the West Bank). See Yesh Din, supra note 3, para. 14.
7 This was the case in relation to a procedure, officially called the “Early Warning Procedure” and colloquially referred to as “Neighbor Procedure,” which was implemented by the Israeli army to obtain the assistance of local Palestinian residents during arrest operations conducted in the West Bank. The HCJ deemed this practice unlawful despite claims that it served to reduce the risk of civilian and military casualties. See HCJ 3799/02 Adalah—Legal Center for the Rights of the Arab Minority in Israel v. The GOC Central Command, IDF 60(3) PD 67 [2005] (Isr.), available at http://elyon1.court.gov.il/files_eng/O2/990/037/a32102037990.a32.pdfGoogle Scholar.
8 See Blum, Gabriella, The Laws of War and the “Lesser Evil,” 35 Yale J. Int'l Law 1 (2010)Google Scholar. Blum has acknowledged that her interest in the question of why IHL does not recognize a lesser evil justification for its breach “was sparked by the Israeli Supreme Court's decision to strike down the ‘Early Warning Procedure’ employed by the Israel Defense Forces in the West Bank.” See Blum, Gabriella, The Laws of War and the ‘Lesser Evil’, YJIL Online Symposium (Oct. 18, 2010), http://opiniojuris.org/2010/03/02/yjil-online-symposium-the-laws-of-war-and-the-lesser-evilGoogle Scholar.
9 See, e.g., Barak, Aharon, Purposive Interpretation in law (Bashi, Sari trans., Princeton University Press 2005)CrossRefGoogle Scholar; Dworkin, Ronald, Taking Rights Seriously (1977)Google Scholar (Dworkin famously argues that legal rules must be interpreted in light of governing legal principles).
10 See, e.g., kennedy, David, The Dark Side of Virtue: Reassessing International Humanitarianism 237–53 (2004)CrossRefGoogle Scholar.
11 See, e.g., Austin, John, The Province of Jurisprudence Determined (Rumble, W. ed., Cambridge Univ. Press 1995) (1832)CrossRefGoogle Scholar.
12 See, e.g., Kennedy, David, Of War and Law 83–84 (2004)Google Scholar.
13 Id. at 47.
14 See Warner, Daniel, The Politics of the Political/Humanitarian Divide, 833 Int'l Rev. Red Cross 109 (1999)CrossRefGoogle Scholar.
15 In general legal thinking, many diverging schools of thought have rejected formalist approaches to law. Notable examples include Legal Realism, Constructivism, Critical Legal Studies, diverse forms of Feminist Legal Theory and Critical Race Theory, Pragmatism and Postmodernism. See, e.g., Bix, Brian, Jurisprudence Theory and Context (5th ed. 2009)Google Scholar. Similar developments have occurred in the field of international law. See, e.g., Shaw, Malcom N., International Law 44–53 (4th ed. 1997)Google Scholar.
16 See Rancière, Jacques, Who Is the Subject of the Rights of Man?, 103 S. Atl. Q. 297 (2004)CrossRefGoogle Scholar.
17 Proponents of various critical approaches to law, such as Critical Legal Studies, Feminist Legal Theory and Critical Race Theory, challenge hegemony by exposing how politics and power shape the law. See, e.g., Bix, supra note 15, at 231-50.
18 However, it must be acknowledged that State officials do quite often call into question the applicability of domestic law provisions by citing exceptional circumstances. This is particularly noticeable in relation to the “war on terror.” See Agamben, Giorgio, State of Exception (Attel, Kevin trans., UP Chicago, 2005)Google Scholar.
19 Even public intellectuals who could hardly be characterized as “formalists,” have appealed to an idealized vision of international law in which it is portrayed as standing outside of politics and constraining power. See Koskenniemi, Martti, Book Review, 4 German L. J. 1087, 1090 (2003)Google Scholar (reviewing Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Borradori, Giovanna ed., 2003)CrossRefGoogle Scholar), who attributes such an approach to Jacques Derrida and Jürgen Habermas. Koskenniemi has himself written favorably about the use of formalism as a strategy of resistance. See Koskenniemi, Martti, The Lady Doth Protest Too Much: Kosovo, and the Turn to Ethics in International Law, 65 Mod. L. Rev. 159 (2002)CrossRefGoogle Scholar. See also, Gross, Aeyal M., Afer the Falls: International Law between Postmodernity and Anti-Modernity, in Regards d'une génération sur le droit international 183, 201–08 (Ruiz-Fabri, Hélène, Jouannet, Emanuelle, & Regards, Jean-Marc Sorel eds., 2008)Google Scholar.
20 See Pictet, Jean, The Fundamental Principles of the Red Cross: Commentary (1979)CrossRefGoogle Scholar. See also, Speech titled Humanitarian Principles—The Importance of their Presentation during Humanitarian Crises delivered by Angelo Gnaedinger, Director-General of the ICRC, at the conference: Humanitarian Aid in the Spotlight: Upcoming Challenges for European Actors (Oct. 12 2007) available at http://icrc.org/Web/Eng/siteeng0.nsf/html/humanitarian-principles-statement-121007.
21 See, e.g., ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2003), available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5XRDCCGoogle Scholar (submitted on Dec. 2-6, 2003 at the 28th International Conference of the Red Cross and Red Crescent). The ICRC submitted a second report by the same name at the 30th International Conference of the Red Cross and Red Crescent (Nov. 26-30, 2007), available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/ihl-30-international-conference-101207.
22 This statement was made in a public lecture by advocate Michael Sfard, Accountability, Impunity, the Goldstone Report and the Role of Government Lawyers, Address at Securing Compliance with International Humanitarian Law: The Promise and Limits of Enforcement Mechanisms Conference (Nov. 24, 2009).
23 Sands, Philippe, Torture Team: Deception, Cruelty and the Compromise of Law (2008)Google Scholar (providing a detailed account relating to U.S. government lawyers who gave legal approval for harsh interrogation techniques implemented in Guantánamo Bay.) See also Alvarez, José E., Torturing the Law, 37 Case W. Res. J. Int'l L. 175 (2006)Google Scholar; Koh, Harold Hongju, Can the President Be Torturer in Chief?, 81 Ind. L.J. 1145 (2006)Google Scholar.
24 See Feldman, Yotam & Blau, Uri, Consent and Advise, Ha'aretz Magazine, Jan. 30, 2009 at 15–6Google Scholar, quoting Col. (Ret.) Daniel Reisner. See also Col. (Ret.) Baruch, Pnina Sharvit, The Debate Surrounding the Compatibility of the Laws of War to the Struggle against Terror Organisations, The Jerusalem Center for Public Affairs Strategic Forum Blog (June 22, 2009) [in Hebrew], http://www.jcpa.org.il/JCPAHeb/Templates/showpage.aspFID=602&DBID=1&LNGID=2&TMID=99&IID=22 867.Google Scholar
25 This occurred during the armed conflict between Israel and Hezbollah forces that took place between July 12 and Aug. 14 2006. Commonly referred to as the 2006 Lebanon War, this armed conflict is known in Israel as the Second Lebanon War, while in Lebanon it is referred to as the July war.
26 This occurred most notably during the armed conflict between Israel and Hamas forces that took place between Dec. 27, 2008 and Jan. 18, 2009, which the Israeli authorities dubbed “Operation Cast Lead.”
27 The term “asymmetric warfare” is not confined to conflicts between States and non-State actors and is used more broadly to describe any armed conflict, including conflicts between States, in which there is a significant disparity in the military might of the belligerent parties.
28 For a detailed analysis see, e.g., Pfanner, Toni, Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action, 87 Int'l Rev. Red Cross 149 (2005)CrossRefGoogle Scholar; Geiss, Robin, Asymmetric Conflict Structures, 88 Int'l Rev. Red Cross 757 (2006)CrossRefGoogle Scholar; Schmitt, Michael, Asymmetrical Warfare and International Humanitarian Law, 62 A.F. L. Rev. 1 (2008)Google Scholar.
29 See Kennedy, supra note 10, at 272-77 (inter alia, describing a “CNN effect”). See also Benvenisti, Eyal, The Law on Asymmetric Warfare, in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Arsanjani, Mahnoush, Cogan, Jacob Katz, Sloane, Robert D. & Wiessner, Siegfried, eds., 2010)Google Scholar.
30 For discussion on the manner in which the rise of international criminal law has influenced the appliance of IHL see, e.g., Blum, supra note 8, at 3-4; Ben-Naftali, Orna, A Judgment in the Shadow of International Criminal Law, 5 J. Int'l Crim. Just. 322 (2007)CrossRefGoogle Scholar.
31 See Dunlap, Charles J. Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts, 2001 Workshop Papers: Humanitarian Challenges in Military Intervention (Oct. 19, 2010, 9:32 AM), http://www.ksg.harvard.edu/cchrp/Web%20Working%20Papers/Use%20of%20Force/Dunlap2001.pdfGoogle Scholar. See also Kennedy, supra note 10, at 125; Weizman, Eyal, Lawfare in Gaza: Legislative Attack, Open Democracy, http://www.opendemocracy.net/article/legislative-attackGoogle Scholar (last visited Oct. 19, 2010).
32 See, e.g., Israel Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects 52–76 (2009)Google Scholar, detailing “Hamas' Breaches of the Law of Armed Conflict and War Crimes.”
33 Id. particularly 124-45.
34 Radicalism of this nature is likely to be masked. In this context the following statement by an unnamed Israeli “expert in international law” quoted in Dan Izenberg, , What's a Lawyer Doing in a War Zone, The Jerusalem Post Up Front Weekend Magazine, Apr. 15, 2005, at 34Google Scholar is perhaps revealing:
As long as you claim you are working within international law and you come up with a reasonable argument as to why what you are doing is within the context of international law, you're fine. That's how it goes. This is a very cynical view of how the world works. So, even if you're being inventive, or even if you're being a bit radical, as long as you can explain it in that context, most countries will not say you're a war criminal.
35 For a discussion on the possible motivations of academics defending State policies and practices, see Alvarez, José E., The Closing of the American Mind, in Proceedings of the 32d Meeting of the Canadian Council of International Law 74, 98 (2004)Google Scholar (suggesting that many leading American academics do so “simply because they want to have the ear of the prince”). For individual case studies, see Matar, Anat, Asa Kasher - How Is He Possible? 6 Mitaam 1 (2006)Google Scholar [in Hebrew]; O'keefe, Derrick, Michael Ignatieff: The Lesser Evil? (forthcoming 2010)Google Scholar. For a more general account of intellectuals' role in the service of power see, e.g., Bourdieu, Pierre, The Corporatism of the Universal: The Role of Intellectuals in the Modern World, 81 Telos 99 (1989)CrossRefGoogle Scholar.
36 Alan Dershowitz has been particularly industrious in mounting such criticism against those who have accused Israel of unlawful conduct, publishing multiple newspaper articles as well as a number of books towards that end. See, e.g., Dershowitz, Alan M., The Case for Moral Clarity: Israel, Hamas and Gaza (2009)Google Scholar. Similar criticism is frequently voiced by organisations such as NGO Monitor and UN Watch which have been established specifically for the purpose of exposing alleged bias and misrepresentation of international law on the part of human rights NGOs and international organizations. See NGO Monitor, http://www.ngo-monitor.org and UN Watch, http://www.unwatch.org. Both of these organizations have themselves been accused of a political bias. See, e.g., Peratis, Kathleen, Diversionary Strike on a Rights Group, The Washington Post, Aug. 30, 2006Google Scholar; Williams, Ian, Casting the First Stone, The Guardian, Apr. 4, 2007Google Scholar.
37 See, e.g., Morgenthau, Hans J. and Thompson, Kenneth W., Politics among Nations: The Struggle for Power and Peace (6th ed., 1985)Google Scholar.
38 See, e.g., Posner, Eric, Do States Have a Moral Obligation to Obey International Law? 55 Stan. L. Rev. 1901 (2003)Google Scholar.
39 See, e.g., Bolton, John R., Is There Really ‘Law’ in International Affairs?, 10 Transnat'l L. &. Contemp. Probs. 1 (2000)Google Scholar.
40 While describing how international law oscillates between apology and utopia, Martti Koskenniemi provides a compelling account of the view of international law as a mere apology for power (which he then complicates with a contrasting and yet complementary utopian view). See Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument (1989)Google Scholar. See also Goldsmith, Jack & Posner, Eric, The Limits of International Law (2005)Google Scholar (contending that international law is simply a product of States pursuing their interests on the international stage) and compare with Berman, Paul Schiff, Seeing Beyond the Limits of International Law, 84 Tex. L. Rev. 1265 (2006)Google Scholar.
41 Examples of this line of argumentation are cited and criticized in Naftali, Orna Ben, The Epistemology of the Closet of International Law and the Spirit of Law, in Does Law Matter: Law, Culture and Society (forthcoming, 2010) [in Hebrew]Google Scholar. Dershowitz, Alan M., Double Standard Watch: The Phony War Crimes Accusation against Israel, Jpost.Com, Jan. 21, 2009, http://cgis.jpost.com/Blogs/dershowitz/entry/the_phony_war_crimes_accusationGoogle Scholar (including reference to “that vaguest of notions called ‘international law’ or the ‘law of war.’).”
42 Indeed, in the article that first used the term “New Stream” to describe the approach which translated the techniques of the critical legal studies movement onto the international plane, one of the originators and most influential proponents of that approach already observed that his own position “often seems to fade quite easily into neo-conservatism.” See Kennedy, David, A New Stream of International Law Scholarship, 7 Wis. Int'l L.J. 1, 8 (1988)Google Scholar.
43 Of course, one can maintain that IHL is not relevant to a moral assessment of actions taken during the course of armed conflict and still be critical of the State if its actions are judged to have been immoral. See Enoch, David, Mahshavot al Milhemet Aza, A2 Mishpatim al Atar 2–3 (April 2009) [in Hebrew], http://law.huji.ac.il/upload/mishpatimonline01.pdfGoogle Scholar.
44 See Kasher, Asa & Yadlin, Amos, Military Ethics of Fighting Terror: An Israeli Perspective, 4 J. Mil. Ethics 3 (2005)CrossRefGoogle Scholar. See also Kasher, Asa, Irregular Wars: A Philosophical Perspective on International Law and Universal Jurisdiction, 47 Justice 22 (2010)Google Scholar; Kasher, Asa, The Principle of Distinction, 6 J. Mil. Ethics 152 (2007)CrossRefGoogle Scholar. Kasher and Yadlin's proposed new doctrine has generated considerable philosophical and legal debate, much of which revolved around the question of its application to Israel's conduct during the December 2008 and January 2009 armed conflict in Gaza. See, e.g., Margalit, Avishai & Walzer, Micahel, Israel: Civilians & Combatants, The New York Review of Books, May 14, 2009 at 21Google Scholar; Kasher, Asa & Yadlin, Amos, ‘Israel & the Rules of War’: An Exchange, N.Y. Rev. Books, June 11, 2009 at 77Google Scholar; Kasher, Asa, Operation Cast Lead and the Ethics of Just War: Was Israel's Conduct in its Campaign against Hamas Morally Justified?, 37 Azure 43 (2009), http://www.azure.org.il/download/magazine/az37kasher.pdfGoogle Scholar; Konfino, Roi & Kremnitzer, Mordechai, Legitimiut HaPgi'ah be-Hafim mi-Pesha ba-Milhama ha-Acharona be-Aza – He'arah al Qdimut Musarit, Sikun ve- “Ruach Tzahal,” Israel Democracy Institute Op-Ed (July 26, 2009) [in Hebrew], http://www.idi.org.il/BreakingNews/Pages/128.aspxGoogle Scholar.
45 See, e.g., Dershowitz, Alen, The Laws of War weren't Written for This War, Wall St. J. Eur., Feb. 12, 2004 at A10Google Scholar.
46 A January 25, 2002 memorandum signed by then White House Counsel Alberto Gonzales concerning the armed conflict in Afghanistan referred to the “war on terrorism” as a “new paradigm” that “renders obsolete Geneva's strict limitations on questioning of enemy prisoners.… ” In a speech to the Royal United Services Institute on April 3, 2006 then UK Defence Secretary John Reid said that sweeping changes to IHL were needed in order to counter the threat of “barbaric global terrorism.” In an Israeli Cabinet meeting held on October 20, 2009, Israeli Prime Minister Benjamin Netanyahu, with the support of his Minister of Defense, Ehud Barak, instructed various officials in the government ministries to examine the possibility of advancing an international initiative to “change the laws of war due to the spread of global terror.”
47 For a selection of commentaries on this theme, see New Battlefields/Old Laws: Critical Debates from the Hague Convention to Asymmetric Warfare (Banks, William C. ed., forthcoming 2010)Google Scholar. This publication is the product of an ongoing research project called “Wew Battlefields, Old Laws,” organized jointly by the Institute for National Security and Counterterrorism (INSCT) at Syracuse University and the Institute for Counter Terrorism (ICT) at the Interdisciplinary Center (IDC) in Herzliya. See http://www.insct.syr.edu/Projects/new_battlefields_old_laws/overview.htm.
48 For a discussion on both these alternatives, see, e.g., Kasher, Asa, A Moral Evaluation of the Gaza War—Operation Cast Lead, 9(18) Jerusalem Center for Public Affairs Brief (Feb. 4, 2010), http://www.jcpa.org/JCPA/Templates/ShowPage.aspDBID= 1&TMID=111&LNGID=1&FID=378&PID=0&IID=3345Google Scholar.
49 See Memorandum from President George W. Bush to Vice President et al., Humane Treatment of Al-Qaeda and Taliban Detainees (Feb. 7, 2002), available at http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf. See also , John C. & Ho, James C., The Status of Terrorists, 44 Va J. Int'l L. 207 (2003)Google Scholar. Contra David, Mark “Max” Maxwell, & Watts, Sean M., ‘Unlawful Enemy combatant’: Status, Theory of Culpability, or Neither?, 5 J. Int'l Crim. Just. 19 (2007)Google Scholar; Rona, Gabor, Enemy Combatants in the “War on Terror”? A Case Study of How Myopic Lawyering Makes Bad Law, 30 ABA Nat'l Sec. L. Rep. 1 (2008)Google Scholar; Pejic, Jelena, Unlawful Enemy Combatants: Interpretations and Consequences, in International Law and Armed Conflict: Exploring the Faultlines 338 (Schmitt, Michael & Pejic, Jelena eds., 2007)Google Scholar.
50 See Schondorf, Roy S., Extra-State Armed Conflicts: Is There a Need For a New Legal Regime?, 37 N.Y.U. J. Int'l L. & Pol. 1 (2004)Google Scholar.
51 See Arneson, Richard J., Just Warfare Theory and Noncombatant Immunity. 39 Cornell Int'l L.J. 663 (2006)Google Scholar. For a critique of this view, see Teitel, Ruti, The Wages of Just War 39 Cornell Int'l L.J. 689 (2006)Google Scholar and Hendrix, Burke, Defending Non-Combatants: A Reply to Richard Arneson, 39 Cornell Int'l L.J. 705 (2006)Google Scholar.
52 See McMahan, Jeff, Killing in War (2009)CrossRefGoogle Scholar.
53 See Agamben, supra note 18.
54 Id. at 2-3. See also Paye, Jean-Claude, Global War on Liberty (Membrez, James H. trans., Telos Press, 2007)Google Scholar.
55 Standards allow for judgment to be exercised not only by the parties to the conflict, but also by third parties reviewing their actions, such as courts and humanitarian actors. See Kennedy, supra note 10, at 87-89, 103-06, 115-17. See also Cohen, Amichai, Rules and Standard in the Application of International Humanitarian Law, 41 Isr. L. Rev. 41 (2008)CrossRefGoogle Scholar, in particular, 57.
56 A certain measure of discretion is required even in the application of clear-cut rules to concrete cases. This point is illustrated in Koskenniemi, Martti, Occupied Zone — ‘A Zone of Reasonableness’? 41 Isr. L. Rev. 13 (2008)CrossRefGoogle Scholar. Still, the application of general principles and broad standards obviously engenders a greater degree of uncertainty. See, e.g., Kennedy, Duncan, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1689–90 (1976)CrossRefGoogle Scholar.
57 Such disagreements regularly arise in relation to the interpretation of “proportionality” and “necessity.” See, e.g., Gardam, Judith, Necessity and Proportionality in International Law ch. 4 (2004)Google Scholar; Fenrick, W.J., Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia, 12 Eur. J. Int'l L. 489, 499 (2001)CrossRefGoogle Scholar.
58 See, e.g., Blum, supra note 8, at 9; Cohen, supra note 55, at 48-49.
59 Feldman, supra note 24, at 15.
60 See Blum, supra note 8, at 7. Sections C and E below posit that this is only a partial portrayal of IHL's humanitarian purpose.
61 Id. at 3.
62 These are explored id. at 39-53.
63 Id. at 5.
64 See quotation from Israeli Defense Forces, Operational Directive, Early Warning (Nov. 26, 2002) quoted in Adalah v. GOC Central Command, supra note 8, para. 5.
65 See Blum, supra note 8, at 19, referring to findings of the Israeli human rights NGO B'Tselem about Palestinian casualties in arrest operations conducted after the “Neighbor Procedure” was abandoned. Blum acknowledges that it is impossible to assess how many of these casualties might have been avoided had the “Neighbor Procedure” been implemented. The evidence she refers to is thus, highly speculative.
66 Id. at 23-24.
67 This is because it is unlikely that it would be possible to prove that torture was resorted to in order to alleviate the suffering of the enemy or that it was the least harmful means available, two of the requirements that Blum includes in her blueprint of a humanitarian necessity justification. See id. at 58 & 66.
68 Id. at 5.
69 See Additional Protocol Relating to the Protection of Victims of International Armed Conflicts, arts. 51(2), 51(4) & 52, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. These provisions are considered reflective of customary international law and had arguably already attained customary status by the time of the atomic bombings in August 1945. See Henckaerts, Jean-Marie & Dosweld-Beck, Louise, Customary International Humanitarian Law, Volume 1: Rules chs. 1-3 (2005)CrossRefGoogle Scholar.
70 Blum, supra note 8, at 28.
71 Id. at 5-6.
72 Id. at 67.
73 Id. at 58-59.
74 Id. at 63.
75 Id. at 67.
76 Id. at 65.
77 Id. at 66-67.
78 See, e.g., Nagel (1972), supra note 1, at 125. See also id. at 44.
79 See, e.g., Hartle, Anthony E., Humanitarianism and the Laws of War, 61 Phil. 109 (1986)Google Scholar.
80 See, e.g., Kennedy, supra note 56, at 1689.
81 See Derrida, Jacques, Force of Law: The “Mystical Foundation of Authoriiy” (Quaintance, Mary trans.), 11 Cardozo L. Rev. 919, 949 (1990)Google Scholar.
82 See, e.g., Shany, Yuval, Toward a General Margin of Appreciation Doctrine in International Law?, 16 Eur. J. Int'l L. 907, 915 (2005)CrossRefGoogle Scholar.
83 See Kaplow, Louis, Rules Versus Standards: An Economic Analysis, 42 Duke L. J. 557, 569–70 (1992)CrossRefGoogle Scholar as well as Cohen, supra note 55, at 43-44 (using law and economics thinking to illustrate that legal norms with a high level of specificity are cheaper to apply than norms whose application calls for value judgment and the consideration of diverse factors).
84 In this these norms, largely codified in the Hague Conventions of 1899 and 1907, seem to reflect the positivist-formalist approach discussed in Part I(A) above, which dominated legal thinking at the time.
85 See, e.g., Hartle, supra note 79, at 109; Blum supra note 8, at 68. See also Reisman, W. Michael, Editorial Note, Holding the Center of the Law of Armed Conflict, 100 Am. J. Int'l L. 852 (2006)Google Scholar (arguing that jus in bello is composed of two parts – “Part A” consists of principles allowing belligerents a significant margin of appreciation while “Part B” contains a set of absoluteprohibitions).
86 For explication of the links between deontological thought and IHL rules see van Baarda, Th. A., Moral Ambiguities Underlying the Laws of Armed Conflict: A Perspective From Military Ethics, 11 Y.B. Int'l Hum. L. 3, 12–17 (2008)Google Scholar.
87 See, e.g., Geneva Convention IV, supra note 4, arts. 32 & 147.
88 See Additional Protocol I, supra note 69, arts. 48,51(2), 52 & 85(3)(a).
89 See, e.g., Geneva Convention IV, supra note 4, art. 28 and Additional Protocol I, supra note 69, article 51(7).
90 This is the case in relation to many provisions of IHL which call for the weighing and balancing of competing military and humanitarian considerations. Perhaps the most noticeable amongst the many examples to be found in the law is the provision concerning proportionality in attack codified in Articles 51(5)(b) and 57(2)(a)(iii) of Additiona1 Protocol I (supra note 69).
91 For a rigorous exposition of the lesser evil idiom, see Weizman, Eyal, Lesser Evils: Scenes of Humanitarian Violence from Arendt to Gaza (forthcoming, 2011)Google Scholar. See also Weizman, Eyal, 665/The Lesser Evil, Roundtable: Research Architecture (Aug. 7, 2008), http://roundtable.kein.org/node/802Google Scholar.
92 Blum, supra note 8, at 47.
93 Id. at 48.
94 Id.
95 Id.
96 See Hume, David, A Treatise of Human Nature Book III, Part 1, Sect. 1 (1740)Google Scholar.
97 Blum, supra note 8, at 32.
98 Id. at 45.
99 Id. at 48.
100 See id. at 29 citing Walker, J. Samuel, The Decision to Use the Bomb: A Historiographical Update, in Hiroshima in History and Memory 11, 23 (Hogan, Michael J. ed., 1996)Google Scholar.
101 See supra p. 435.
102 See infra pp. 443-46.
103 For a detailed analysis demonstrating domestic courts' limited capacity to exercise effective judicial review over security related state practice, see Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and The Occupied Territories (2002)Google Scholar.
104 Nationals of the USA and Israel, for example, are not subject to the jurisdiction of such courts.
105 See, e.g., Steiner, Henry J., Three Cheers for Universal Jurisdiction—Or Is It Only Two?, 5 Theoretical Inq. L. 199 (2004)Google Scholar; Gallagher, Katherine, Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-Level United States Officials Accountable for Torture, 7 J. Int'l Crim. Just. 1087 (2009)CrossRefGoogle Scholar.
106 Walzer, supra note 2, at 267-68.
107 Such measures might be financially costly to implement, but for the purposes of simplification these costs, as well as others which could arise in relation to each of the alternative options considered in the example, are ignored. As explained below, such costs would have to be figured into a utilitarian calculus and this may well give rise to problems of incommensurability.
108 Walzer, supra note 2, at 262.
109 See Brandt, R. B., Utilitarianism and the Rules of War, 1 Phil. & Pub. Aff. 145, 147 (1972)Google Scholar.
110 “Spill over effects” could also be considered from a rule-utility perspective as the introduction of an exception to IHL rules, might have the indirect effect of compromising the overall benefits derived from IHL.
111 Blum, supra note 8, at 49.
112 Id. at 50-51.
113 Id. at 51.
114 Id. at 53.
115 They might try lying about the facts, but if the facts are known it is difficult to see how they might legally defend their actions.
116 Blum, supra note 8, at 53.
117 Id. at 52. Kretzmer, supra note 103, gives reason to question Blum's expressed confidence in the HCJ.
118 A strict calculation of utilities would actually mandate a calculation that is far from straightforward. Assessing the cost of an injury, for example, would arguably require comparing the utilities of everything every injured person could have been expected to achieve if not for the injury, against the utilities they expected given the injury. At the very best, only a rough approximation of this could hope to be achieved.
119 See Blum, supra note 8, at 45-46. Blum suggests that the problem of uncertainty could be overcome by shifting the risks to the actor. However, as already noted, it is unlikely that actors invoking a lesser evil justification for violating IHL could actually be effectively challenged before a court of law. This is so both because they would have the advantage of knowledge and expertise that would make it difficult to disprove their claims and because it is doubtful that they would ever be tried before a non-partisan court.
120 A copious body of literature grapples with the calculation problems posed by the principle of proportionality sometimes suggesting how they might be overcome. See, e.g., Shamash, Hamutal Esther, How Much is Too Much? Examination of the Principle of Jus in Bello Proportionality, 2 IDF L. Rev. 103 (2005–2006)Google Scholar.
121 See, e.g., Benvenisti, Eyal, Human Dignity in Combat: The Duty to Spare Civilians, 39 Isr. L. Rev. 81, 85–87 (2006)Google Scholar.
122 See, e.g., Reisman, supra note 85.
123 See, e.g., Hartle, supra note 79, at 109. See also Orend, Brian, War and International Justice: A Kantian Perspective 4 (2000)Google Scholar. Some of the clear cut prohibitions established in the law do perhaps derive from consequetialist, or at least, non-deontological considerations. Thus, for example, a rule prohibiting the use of a certain weapon could more easily be attributed to prudence or to utilitarian considerations about minimizing human suffering than to the requirement to respect people as such. The contention here though is that those provisions of IHL that establish absolute prohibitions in relation to the treatment of persons not participating in the hostilities are informed by deontological principles and for that reason are binding irrespective of any considerations of utility.
124 In this LEA may be deviating from the pursuit of lesser evil, which may in fact require considering deontological constraints: “Determining what is a lesser evil is not solely a matter of comparing consequences. How those consequences are brought about is also important.” (quoting Alexander, Larry, Lesser Evils: A Closer Look at the Paradigmatic Justification, 26 L. & Phil. 611, 616 (2005)Google Scholar).
125 Blum, supra note 8, at 6.
126 Id. at 43.
127 Id. at 7.
128 AS illustrated in Hartle, supra note 79.
129 Id. at 39.
130 Though even a deontologist may accept that there are certain circumstances in which it may be just to resort to war, deontologists address problems of conflicting rights as conflicts between different “grounds for duty.” When facing conflicting grounds for duty, an agent must act on the more compelling of the two. See Herman, Barbara, The Practice of Moral Judgment 218 (1993)Google Scholar. While there are certainly grounds for a duty not to go to war, it is conceivable that there may be circumstances in which there are still more compelling grounds for going to war that would lead a deontologist to conclude that there is a moral duty to do so.
131 Blum, supra note 8, at 43.
132 Walzer, supra note 2, at 268.
133 See Walzer, Michael, Arguing about War 35–40 (2004)Google Scholar.
134 Nagel, supra note 1, at 126.
135 Id.
136 Kennedy, David, Apogee and Epitaph: Celebrating the 60th Anniversary of the Universal Declaration of Human Rights, Keynote Address at the Minema Biennial Conference on Human Rights at Tel Aviv University (Dec. 9, 2008)Google Scholar.
137 Kennedy, supra note 10, at 16-17.
138 Blum, supra note 8, at 3.
