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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