Military Necessity as Normative Indifference
Hayashi, Nobuo, Georgetown Journal of International Law
2. Neither Normative Military Necessity Nor Prescriptive Humanity Makes the Performance or Forbearance of All Belligerent Conduct-Kinds Mandatory
As noted earlier, the inevitable conflict thesis involves the notion that prescriptive humanity makes the performance of descriptively humane acts and the forbearance of descriptively inhumane acts mandatory. (163) It also involves the notion that normative military necessity makes the performance of material military necessities and the forbearance of material military non-necessities mandatory. (164)
It is unclear whether Dinstein or Schmitt embrace the former notion. They do appear to eschew the latter, however. (165) They have no choice but to accept both notions should they wish to retain the "diametrical opposition" and "dialectical compromise" that supposedly characterize the relationship between normative military necessity and prescriptive humanity.
The joint satisfaction thesis argues that normative military necessity does not provide the framers of IHL rules with reason to obligate the performance of material military necessities. Rather, it robustly permits their performance and moderately permits even their forbearance. Nor does normative military necessity prompt the framers to prohibit or restrict the performance of material military non-necessities. It simply furnishes robust reasons for which IHL should authorize their forbearance. It also, though moderately, encourages the framers to authorize their performance.
The situation is somewhat more nuanced for prescriptive humanity. Prescriptive humanity is, indeed, likely to drive the framers towards forbidding descriptively inhumane conduct-kinds. Whether prescriptive humanity demands or exhorts the performance of conduct-kinds deemed descriptively humane is less clear. It does appear to do so with respect to many descriptively humane conduct-kinds. Nevertheless, performing some others may very well fall short of being demanded or exhorted by prescriptive humanity; they may instead remain strictly, albeit robustly, permitted.
a. Normative Military Necessity Does Not Make the Performance or Forbearance of Any Belligerent Conduct-Kinds Mandatory
Normative military necessity generates what G. H. von Wright called morally indifferent forms of behavior:
If the negation of an act is forbidden, the act itself is called obligatory. For instance: it is forbidden to disobey the law, hence it is obligatory to obey the law. We ought to do that which we are not allowed not to do. If an act and its negation are both permitted, the act is called (morally) indifferent. For instance: in a smoking compartment we may smoke, but we may also not smoke. Hence smoking is here a morally indifferent form of behaviour. (166)
Von Wright subsequently revised his position regarding the relationship between permissions, prohibitions, and obligations. According to his revised view, "the negation of an obligation is a permission 'to the contrary'; and the negation of a permission is an obligation to the contrary." (167) Be that as it may, the essence of von Wright's observations regarding the relationship between obligations and permissions and regarding morally indifferent behavior remains valid for our present purposes.
It is in the belligerent's strictly strategic self-interest to perform material military necessities and to forbear material military non-necessities. To the extent this is so, it may be said that normative military necessity robustly permits the former's performance and the latter's forbearance. Conversely, it is contrary to one's strictly strategic self-interest to forbear material military necessities or to perform material military non-necessities. Here, normative military necessity may be said to permit the former's performance and the latter's forbearance only moderately. These are nevertheless all instances of permissions. As far as normative military necessity is concerned, acting consistently or inconsistently with material military necessity is a matter of indifference.
In IHL norm-creation, normative military necessity functions exclusively as a consideration in favor of rendering both performing and forbearing any given belligerent conduct-kind a matter of Hohfeldian liberty. (168) That is so, intuitively, because neither seeking victory nor inviting defeat is per se of concern to IHL. (169) The law does not make it its business to ensure that each party to the conflict maximize its prospect of success or minimize its prospect of failure. Afortiori, the law does not do so by obligating the pursuit of material military necessities and avoidance of material military non-necessities. (170) Normative military necessity therefore furnishes no cause for the law to prohibit or protect the belligerent from failing to perform the former or to forbear the latter.
Dinstein observes, pertinently, that "[t]he dynamics of the law are such that whatever is required by military necessity, and is not excluded on the ground of humanitarianism, is permissible." (171) This statement does not present the complete picture, however. It needs to be supplemented with this: or, for that matter, whatever is not required by military necessity, and is not excluded on the ground of humanitarianism, is also permissible. Thus, if IHL were an autonomous system of rules wherein only normative military necessity operated as a relevant consideration, this law would contain nothing but permissions. (172)
i. Normative Military Necessity Robustly Permits the Forbearance and Moderately Permits the Performance of Material Military Non-Necessities
To argue that it is strategically undesirable to perform futile, purposeless, wasteful, excessive and impertinent conduct-kinds (173) is to deem their forbearance consistent with material military necessity and their performance lacking therein. It in no way follows, however, that the framers of IHL rules should proceed to prohibit them--i.e., make their forbearance obligatory--for that reason. (174) Reducing material military non-necessities, then, is a liberty robustly permitted by normative military necessity as far as IHL norm-creation is concerned. The robustness of this liberty emanates from the fact that it is consistent with material, strictly vocational competence. (175) Conversely, failing to reduce such non-necessities is a liberty moderately permitted by normative military necessity. This liberty is moderate because it is indicative of material, strictly vocational incompetence. (176) After all, an inept, blundering and disorganized belligerent flirting with the dispiriting prospect of defeat has only itself to blame.
It follows that, where IHL obligates the forbearance of a stipulated material military non-necessity, the obligatory nature of this forbearance is not inherently related to the fact that such a conduct-kind is deemed lacking in material military necessity. (177) Rather, its obligatory forbearance would stem from some other considerations, such as, for example, its stipulated inhumanity, unfairness, and the like. (178)
ii. Normative Military Necessity Robustly Permits the Performance and Moderately Permits the Forbearance of Material Military Necessities
Nor, just as clearly, does stipulating the material military necessity of a given conduct-kind amount to asserting the mandatory nature of its performance. That it is in one's strictly strategic self-interest to perform material military necessities does not mean that IHL should obligate their performance and prohibit their forbearance. To agree that a given conduct-kind is consistent with material military necessity is rather to agree that the law should leave its performance a matter of robust Hohfeldian liberty for the belligerent. Plainly, if it is of no concern to IHL norm-creation whether the belligerent imperils itself with dangers of failure, it is no more of concern to IHL norm-creation whether the belligerent fights competently and increases its prospect of success.
Holding otherwise would generate consequences that are highly counterintuitive. One such consequence involves a conflation between norms of IHL and those of the community for whom the soldier fights. (179) Consider Walzer's discussion of "naked soldiers," (180) for example. By this expression, he refers to those soldiers "who look funny, who are taking a bath, holding up their pants, reveling in the sun, smoking a cigarette." (181) Walzer correctly notes that it is "not against the rules of war" (182) to kill such soldiers. He then recounts the stories of five men (183) during the two World Wars who declined to kill "naked" soldiers and notes:
Their refusals seem, even to them, to fly in the face of military duty. Rooted in a moral recognition, they are nevertheless more passionate than principled decisions. They are acts of kindness, and insofar as they entail any danger at all or lower minutely the odds for victory later, they may be likened to superogatory acts. Not that they involve doing more than is morally required; they involve doing less than is permitted. (184)
Four observations may be noted here. First, a clear distinction should be drawn between what Walzer calls "the rules of war" and what he calls "military duty." (185) It appears evident that the latter is what each of Walzer's five protagonists owes his respective state under its domestic law as a citizen-soldier. It seems equally evident that they owed no such duty vis-a-vis the international community--such as it was in those days--under its laws and customs of war as combatants. (186) Second, the prominence of their national military duty is highlighted by the fact that what Walzer describes by reference to these men is the moral landscape of conscripts in early 20th century mass national armies. (187) Third, the "nakedness" of enemy soldiers reveals itself just when they are not engaged in active combat. Fourth, it would appear that normarive military necessity robustly permits the killing of "naked" soldiers to the extent it is deemed consistent with material military necessity. Accordingly, Walzer's expression "doing less than is permitted" (188) might be considered analogous to declining to perform what normative military necessity robustly permits.
One might ask whether, in active combat, killing eligible enemy combatants somehow becomes more exhorted or demanded than robustly permitted by normative military necessity. There is no reason for this to be the case. Bill Millin was a Scottish combat bagpiper during the D-Day landing. Indications are that Millin's work boosted the morale among members of his unit. (189) Undermining their morale would have arguably constituted a material military necessity for the Germans. And yet, according to one account, "[a]ll the way, [Millin] learned later, German snipers had had him in their sights but, out of pity for this madman, had not fired." (190) It would appear that Millin was "naked" in the eyes of those German snipers even during active combat. By declining to take him out, the Germans might have failed in their national duty. It would be inapt to say, however, that they failed to act as exhorted or demanded by normative military necessity. It is true that, qua conduct-kind, declining to disable an otherwise eligible enemy combatant out of pity may be deemed lacking in material military necessity. That is still no reason for which the framers of IHL rules should forbid it. Rather, it is something that normative military necessity moderately permits and the law leaves the belligerent at liberty to choose--to its own detriment.
The same is true of other material military necessities, such as reducing risks of self-endangerment. The altitude of 15,000 feet at which NATO bombers flew during the early phases of the 1999 Kosovo crisis became a highly contentious issue. (191) A.P.V. Rogers notes: "Humanitarian considerations would require the pilot to get close to the target to identify it properly; military considerations would require the pilot to fly at a safe height to be at reduced risk from anti-aircraft fire." (192) Let us set aside for the moment what it is exactly that prescriptive humanity would have to say about pilots exposing themselves to dangers of anti-aircraft fire in order to verify their targets. (193) Of immediate concern to us here is the notion that "military considerations would require the pilot to fly at a sale height to be at reduced risk from anti-aircraft fire." (194) Roger appears to use the word "require" in the sense that climbing to a higher altitude is what one would have to do in order to act consistently with material military necessity. (195) In other words, it is in one's strictly strategic self-interest to minimize risks of self-endangerment. Rogers clearly does not use the word "require" in the sense that normative military necessity would prompt IHL to bind combat aircrews in a duty fly at a sufficiently high altitude for their own safety. Normative military necessity merely gives the law's framers robust reason to permit this conduct-kind. Here, too, reducing safety for some reason--for example, out of humanitarian concern for the civilians on the ground--is a conduct-kind that normative military necessity moderately permits and the law leaves the belligerent entirely at liberty to choose.
Even more absurd consequences await those who assert that normative military necessity turns the stipulated material military necessity of a given conduct-kind into a reason for which IHL should obligate its performance. Studies show that some warring parties recruit child soldiers and use them in hostilities on the grounds that their superior stamina, (196) reduced fear or revulsion for atrocities, (197) abundance and economy (198) make their recruitment and use strategically advantageous. Even if, arguendo, recruiting child soldiers and using them in hostilities were to be deemed consistent with material military necessity, it clearly would not follow that this stipulated consistency gives IHL any reason to obligate the recruitment and use of child soldiers in hostilities.
b. Nor Does Prescriptive Humanity Make the Performance or Forbearance of All Belligerent Conduct-Kinds Mandatory
The situation is somewhat different for prescriptive humanity. Conduct-kinds such as assuming some risks of self-endangerment in favor of civilians and caring for the wounded and sick would be deemed consistent with descriptive humanity and readily exhorted or demanded by prescriptive humanity. Nevertheless, performing some other descriptively humane conduct-kinds--e.g., concluding agreements recognizing hospital zones and localities (199)--may remain strictly a matter of robust humanitarian permission. Conversely, plunder, torture and the like would be deemed descriptively inhumane and unhesitatingly deplored or condemned. Prescriptive humanity may tolerate some relatively minor acts of descriptive inhumanity, such as censoring communications between POWs and the exterior, by moderately permitting them.
In other words, that which is strictly permitted by prescriptive humanity is a matter of normative indifference, whereas that which is exhorted or demanded by it is not. That this is so should not be surprising. Although narrower in scope than ethics and morality, (200) prescriptive humanity has normative properties that are in common with them. Philosophers acknowledge that ethics and morality in society encompasses not only duties and obligations but also those qualifies that go beyond them. Thus, according to Hart:
[E]ven within the morality of a particular society, there exist side by side with the structure of mandatory moral obligations and duties and the relatively clear rules that define them, certain moral ideals. The realization of these is not taken, as duty is, as a matter of course, but as an achievement deserving praise. The hero and the saint are extreme types of those who do more than their duty. What they do is not like obligation or duty, something which can be demanded of them, and failure to do it is not regarded as wrong or matter for censure. On a humbler scale than the saint or hero, are those who are recognized in a society as deserving praise for the moral virtues which they manifest in daily life such as bravery, charity, benevolence, patience, or chastity. The connection between such socially recognized ideals and virtues and the primary mandatory forms of social obligation and duty is fairly clear. Many moral virtues are qualifies consisting in the ability and disposition to carry forward beyond the limited extent which duty demands, the kind of concern for others' interests or sacrifice of personal interest which it does demand. Benevolence and charity are examples of this. Other moral virtues like temperance, patience, bravery, or conscientiousness are in a sense ancillary: they are qualifies of character shown in exceptional devotion to duty or in the pursuit of substantive moral ideals in the face of special temptation or danger. (201)
One may also recall Lon Fuller's celebrated distinction between what he called "morality of duty" and "morality of aspiration." (202) His theory explains why certain morally relevant conduct is a matter of duty, (203) whereas some other morally relevant conduct is a matter of aspiration, (204) and how it is that the former engages penalties whereas the latter engages rewards. (205)
And so, mutatis mutandis, it is the case with prescriptive humanity. It expects the performance of some descriptively humane conduct-kinds as a matter of course, and one's failure to do so attracts censure. In contrast, prescriptive humanity places the performance of many other conduct-kinds beyond one's "call of duty" and renders it praiseworthy rather than mandatory. Similarly, while refraining from numerous descriptively inhumane conduct-kinds is forthrightly demanded, prescriptive humanity may decline to deplore or condemn a limited number of other such conduct-kinds.
The "pointer" at which the "humanity of duty" ends and the "humanity of aspiration" begins is a highly contentious matter. (206) Frank Richards, a WWI veteran, recalled his November 1914 action in northern France at a village called Englefontaine:
When bombing dug-outs or cellars it was always wise to throw bombs into them first and have a look around them after. But we had to be very careful in this village as there were civilians in some of the cellars. We shouted down them to make sure. Another man and I shouted down one cellar twice and receiving no reply were just about to pull the pins out of our bombs when we heard a woman's voice cry out and a young lady came up the cellar steps. As soon as she saw us she started to speak rapidly in French and gave the both of us a hearty kiss. She and the members of her family had their beds, stove and everything else of use in the cellar which they had not left for some days. They guessed an attack was being made and when we first shouted down had been too frightened to answer. If the young lady had not cried out when she did we would have innocently murdered them all. (207)
Richards considered it "wise"--or "robustly permitted by normative military necessity," to use the expression adopted in this Article--to "throw bombs into [cellars] first and have a look around them after." (208) But he also clearly found it ethically troubling to do so. In fact, he found it ethically troubling to such a degree that he decided not to do the wise thing (and thereby "innocently murder" the French civilians (209)). Instead, Richards, together with his colleague, chose to shout several times into the cellar. Walzer observes:
Innocently murdered, because they had shouted first; but if they had not shouted, and then killed the French family, it would have been, Richards believed, murder simply. And yet he was accepting a certain risk in shouting, for had there been German soldiers in the cellar, they might have scrambled out, firing as they came. It would have been more prudent to throw the bombs without warning, which means that military necessity would have justified him in doing so.... And yet Richards was surely doing the right thing when he shouted his warning. He was acting as a moral man ought to act; he is not an example of fighting heroically, above and beyond the call of duty, but simply of fighting well. It is what we expect of soldiers. (210)
Contemporary thinkers debate whether the risk of self-endangerment of the kind assumed by Richards is what prescriptive humanity only permits, or what it exhorts or demands. (211)
3. Normative Military Necessity and Prescriptive Humanity Never Affirmatively Conflict With Each Other
As noted earlier, there are occasions where normative military necessity robustly permits and prescriptive humanity exhorts or demands the same conduct-kind. These occasions reveal room for what may be termed their firm joint satisfaction. Moreover, such occasions are more prevalent than "rare," as Dinstein suggests. (212) The very possibility of firm joint satisfaction between the two sets of norm-creative considerations shows that their conflict is not inevitable.
Admittedly, normative military necessity does not always robustly permit what prescriptive humanity exhorts or demands, or vice versa. The incongruity involved, however, is one of logical contradiction between permission and imperative, rather than that of two imperatives in conflict with each other. Logical contradiction of this nature does not result in the impossibility of joint satisfaction. On the contrary, where performing one conduct-kind or forbearing another is exhorted or demanded by prescriptive humanity yet only moderately permitted by normative military necessity, acting as exhorted or demanded by the former generates modest joint satisfaction.
It follows that, by acting as exhorted or demanded by prescriptive humanity, one always acts as robustly or moderately permitted by normative military necessity. As between these two sets of considerations, not only is norm conflict not inevitable, it is also--perhaps more radically--never present. This construal is possible only if one agrees that, in IHL norm-creation, normative military necessity does no more than advocate a maximum degree of liberty of action. Such a liberty is characterized by its normative indifference, i.e., a robust permission to pursue material military necessities and avoid material military non- necessities, coupled with a moderate permission--at one's own peril--to do otherwise.
a. Firm Joint Satisfaction and Its Consequences in IHL Norm-Creation
Firm joint satisfaction takes two forms. The first form can be round in those conduct-kinds the forbearance of which is exhorted or demanded by prescriptive humanity and robustly permitted by normative military necessity. (213) IHL "accounts for" the possibility of such firm joint satisfaction when it validly posits rules unqualifiedly obligating the forbearance of such conduct-kinds. (214) The resulting rule is "unqualified" in the sense that the obligatory forbearance is not subject to modification by a clause exceptionally authorizing its performance in any circumstances. The rule thereby extinguishes all contrary liberties to perform the conduct-kind in question that may otherwise emanate from indifference considerations.
Examples include the unqualified prohibitions against killing POWs; (215) bombarding undefended localities; (216) shooting persons descending from aircraft in distress; (217) and generally maltreating persons hors de combat. (218)
It should not be assumed, however, that the possibility of firm forbearance-based joint satisfaction always results in an IHL rule of this character being validly posited. To begin with, some of the conduct-kinds deemed descriptively inhumane and lacking in material military necessity are those of a nature to involve exclusively self-inflicted evil. (219) The author has argued that if, as shown above, it is not of concern to IHL norm-creation whether the belligerent fights competently and increases its prospects of success or fights incompetently and imperils itself with dangers of failure, it is no more of concern to IHL norm-creation whether the belligerent inflicts evil on itself, its co-belligerent, or those associated with the co-belligerent, while seeking success or inviting failure. (220)
Elsewhere, the absence of unqualified forbearance obligations can be explained by the presence of third considerations. Take the si omnes clauses, (221) for example. They exemplify strictly historical instances where considerations of sovereignty amongst adversarial powers resulted in the non-application in certain circumstances of positive IHL rules which would otherwise unqualifiedly obligate belligerents to forbear conduct-kinds deemed both descriptively inhumane and lacking in material military necessity. Similarly, in 1949, the International Committee of the Red Cross (ICRC) failed to rally states in its effort to expand the scope of application of the four Geneva Conventions in their entirety to all types of armed conflict. (222) The same is true of the defeat of numerous would-be provisions of Additional Protocol II. (223)
The second form of firm joint satisfaction presents itself where it is the performance of a conduct-kind that is exhorted or demanded by prescriptive humanity and robustly permitted by normative military necessity. (224) Here, too, IHL "accounts for" this possibility when it validly posits rules unqualifiedly obligating the conduct-kind's performance. The law thereby extinguishes any contrary liberties on the part of the belligerent to act as may otherwise be moderately permitted by normative military necessity. There are at least two sets of positive IHL rules that exemplify this outcome: rules obligating the attacking party to choose the least injurious amongst those military objectives offering similar military advantage, (225) and the various rules obligating the humane treatment of civilian residents and their property in occupied territories. (226)
One may notice the limited number of positive IHL rules emanating from the second form of firm joint satisfaction. This may be due to two factors, in addition to those just enumerated. The first is the relative absence of intuitiveness surrounding the underlying notion that descriptive humanity can align with material military necessity. (227) Second, compared with conduct-kinds whose forbearance is exhorted or demanded by prescriptive humanity (on account of their stipulated descriptive inhumanity), those whose performance is thus exhorted or demanded (on account of their stipulated descriptive humanity) are arguably scarcer. The latter conduct-kinds are more likely to embody the "humanity of aspiration" rather than the "humanity of duty." (228)
b. Modest Joint Satisfaction
It might still be thought that a norm conflict would result where normative military necessity robustly permitted the performance of a given conduct-kind while prescriptive humanity exhorted or demanded its forbearance, or vice versa. It is submitted here that it does not. Juxtaposing the former vis-a-vis the latter generates a norm contradiction, rather than a norm conflict. Unlike norm conflict, norm contradiction can generate modest joint satisfaction. It does so just where the belligerent acts in conformity with humanitarian exhortation or demand. (229)
IHL "accounts for" those conduct-kinds that are amenable only to modest joint satisfaction in one of the following ways. The law validly posits rules making the pursuit of such satisfaction either unqualifiedly obligatory (i.e., not at all optional), principally obligatory (though exceptionally optional), indeterminately obligatory (i.e., without specifying whether principally or exceptionally so), principally optional (though exceptionally obligatory) or unqualifiedly optional (i.e., not at all obligatory).
i. Norm Contradictions Generally
To say that normative military necessity robustly permits particular behavior and moderately permits contrary behavior at the same time is to say that it is normatively indifferent towards the behavior in question. (230) At issue here are situations where prescriptive humanity exhorts or demands what normative military necessity only moderately permits, and where the former deplores or condemns what the latter robustly permits.
In Hohfeld's first-order jural relations, a "liberty" to perform X-ing corresponds to the absence of a "duty" to forbear X-ing. (231) This liberty is normatively contradictory to an affirmative duty to forbear X-ing. It is so because the following two statements, namely, "it is the case that there exists an affirmative duty to forbear X-ing" and "it is not the case that there exists an affirmative duty to forbear X-ing," cannot both be true at the same time, with respect to the same addressee and for the same instance of X-ing. According to Matthew H. Kramer,
As Hohfeld was fully aware, the contradiction lies ... between a duty to do [phi] and a liberty to abstain from [phi]--or between a duty to abstain from [phi] and a liberty to do [phi]. If Y has a duty to abstain from interfering with Z's project [phi], then Y does not have a liberty to interfere. Similarly, if Y has a duty to render certain assistance to Z for the doing of [phi], then Y does not have a liberty to refuse to give such assistance. Conversely, if Y does have a liberty to interfere with Z's doing of [phi], then Y does not have a duty to refrain from interfering; and if Y does have a liberty to withhold assistance from Z, then Y does not have a duty to provide the assistance. (232)
In other words, where a person has a duty to perform [phi] and a liberty to forbear [phi], there is a norm contradiction.
Similarly, a "permission" to perform X-ing as understood by von Wright equals the absence--or the negation--of a "duty" to forbear X-ing. (233) A permission to perform X-ing is contradictory to a duty to forbear X-ing. (234) To this one may add von Wright's notion of normative indifference. (235) Where X-ing is a matter of normative indifference, it means that both its performance and forbearance are permitted. There is neither a duty to perform X-ing nor a duty to forbear X-ing. If, then, one norm stipulating just such indifference relative to X-ing is juxtaposed vis-a-vis another norm stipulating a duty to perform X-ing--or to forbear X-ing, as the case may be--the two norms in question contradict each other.
The question now is whether joint satisfaction is or is not possible where two norms contradict each other in the manner just described. In Hart's view, joint conformity is logically impossible where there is a norm contradiction:
The contradictory of "A ought not to be done" is "it is not the case that A ought not to be done," and two ought-statements of this form would describe not two rules that require [sic] and prohibited the same action, but two rules, one of which prohibited and the other of which permitted the same action. (236)
Hart also observed:
Laws and rules ... instead of requiring or forbidding action, may either expressly permit action, or by not forbidding them, tacitly permit them; and it is clear that there may be conflicts between laws that forbid and laws or legal systems that expressly or tacitly permit. To meet such cases, we should have to use not only the notion of obedience, which is appropriate to rules requiring or forbidding action, but the notion of acting on or availing oneself of a permission. We might adopt the generic term 'conformity' to comprehend both obedience to rules that require or prohibit and acting on or availing oneself of permission, and we could adopt the expression 'conformity statements' to cover both kinds of corresponding statement. In fact, the conformity statement showing that a permissive rule (e.g. permitting though not requiring killing) had been acted on will be of the same form as the obedience statement for a rule requiring the same action (killing is done). So if one rule prohibits and another rule permits the same action by the same person at the same time, joint conformity will be logically impossible and the two rules will conflict. (237)
There are two difficulties with Hart's reasoning here. First, given the very nature of permission, treating acting upon it as conforming to the rule would be counterintuitive unless one also treated refraining from acting upon it as conforming to the same rule. And yet, Hart implicitly considers the latter non-conformity. (238) Treating refraining from acting upon permission as non-conformity gives rise to Hart's second difficulty. He treated permission and its contrary duty as being in conflict with each other.
Compare this with Stephen Munzer's three rule-combinations. They are (i) "[t]wo duty-imposing rules may require and forbid the same action by the same person at the same time;" (239) (ii) "[a] rule may impose a duty on certain persons to act (not to act) at a certain time, while another rule may permit such persons not to act (to act) at that time" (240) ("case (ii)," as Munzer calls it); and (iii) "[a] rule may allow certain persons to act at a certain time, and another may allow them not to act in that way at that time" (241) (similarly, "case (iii)"). Of these three combinations, Munzer regards only the first as properly embodying a norm conflict. (242) He goes on to state that "the joint conformity theory deals very awkwardly, if at all, with cases (ii) and (iii)" (243):
Now in case (ii) we might be willing to apply the word "conflict" if the norm-subject acted on the permissive rule; for he would then have violated a duty-imposing rule. But if the norm-subject discharged his obligation under the duty-imposing rule, we would usually be reluctant to say that he was in a situation of "conflict" merely because he did not simultaneously act on the permissive rule. So far as cases of type (iii) are concerned, our inclination would be to say ... that the two permissive rules do not conflict at all. Yet the joint conformity theory would commit us to precisely the opposite conclusion. (244)
Plainly, joint conformity is possible in both cases (ii) and (iii). For case (ii), joint conformity results just where the addressee acts according to the obligation. The "jointness" of the said conformity is lost just where the addressee acts upon the contradictory permission. For case (iii), joint conformity arises no matter which permission is acted upon. (245)
Munzer nevertheless recognizes the existence of something resembling a conflict with respect to cases (ii) and (iii) in certain circumstances. Thus, for case (ii):
Normally, no conflict will exist on any occasion when the norm-subject discharges the obligation imposed by the duty-imposing rule and simply declines to act on the permissive rule. But the answer may be different if there is a strong pressure or policy, intimately related to the permission, for the norm-subject to avail himself of the permission. Suppose that ... one rule prohibits doctors from treating patients found injured on the roadway and another permits such treatment. Suppose that neglecting to treat such persons is a hideous violation of professional ethics, accepted morality, and express public policy to reduce roadway deaths. Assume further that the permission to treat such persons is corroborated by the law in various ways, e.g., by depriving one treated of the right to sue for battery, by setting a lower standard of professional care for such treatment, or even by offering physicians some reward for saving injured persons. In this case, I think it is accurate to say that the rules "clash" or "collide" even when the norm-subject does not act on the permission. Certainly, on such an occasion the norm-subject is put in a quandary, ... quite different from the mere bafflement he might feel if simultaneously forbidden and permitted to do an act that neither law nor society seeks to promote. (246)
Here, there is, indeed, an informal norm conflict; joint conformity is logically impossible. Similarly, for case (iii), Munzer envisages conflict-like instances where "the norm-subject acts on one permission and thereby fails to act on a different permission which is backed by a strong, intimately related pressure or policy." (247) This particular conclusion that Munzer draws regarding case (iii) is incomplete. Rectifying this incompleteness requires adding two observations. First, even if one of the two permissions at issue is backed by a strong, intimately related pressure or policy, this and the other permission are still in a relationship of norm contradiction akin to case (ii). Second, joint conformity is possible just where the addressee acts in accordance with the former permission.
Norm contradiction is problematic if, but only if, the agent acts on a liberty and thereby leaves its contrary obligation unfulfilled. No such problem arises where the agent chooses to fulfil the latter.
ii. Norm Contradictions Between Normative Military Necessity and Prescriptive Humanity
During World War I, Emilio Lussu, an officer in the Italian army, spotted an Austrian officer while reconnoitering the enemy trench from a perfectly concealed position:
The Austrian officer lit a cigarette. Now he was smoking. This cigarette formed an invisible link between us. No sooner did I see its smoke than I wanted a cigarette myself; which reminded me that I had some with me.... There was no doubt that I considered the war morally and politically justified. My conscience as a man and a citizen was not in conflict with my military duties. War was, for me, a hard necessity, terrible, to be sure, but one to which I submitted, as one of the many necessities, unpleasant but inevitable, of life. Moreover, I was on campaign and there were men fighting under my orders. That is to say, morally, I was fighting twice over. I had already taken part in many engagements. It was therefore quite logical for me to fire on an enemy officer. I insisted on my men keeping alert while on patrol, and shooting straight if the enemy offered them a target. Then why did I not fire on this officer? I knew it was my duty to fire. Otherwise it would have been monstrous for me to have continued to tight and to make others do so. There was no doubt about it: I ought to fire. And yet I did not.... In front of me I had a young officer who was quite unconscious of the danger that threatened him. I could not have missed him. I could have fired a thousand rounds at that range and never have missed once. All I had to do was to press the trigger and he would have fallen dead. The certainty that his life depended solely on my will made me hesitate. What I had in front of me was a man. A man! I could see his face perfectly clearly. The light was increasing and the sun was just becoming visible behind the tops of the mountains. Could I fire like this, at a few paces, on a man--as if he were a wild boar? I began to think that perhaps I ought not to do so. I reasoned like this: To lead a hundred, even a thousand, men against another hundred, or thousand, was one thing; but to detach one man from the rest and say to him, as it were: "Don't move, I'm going to shoot you. I'm going to kill you"--that was different. Entirely different. To fight is one thing, but to kill a man is another. And to kill him like that is to murder him.... "You can't kill a man like that!" I said to myself.... I could think of letting another do what I could not reconcile with my own conscience. I had the rite with its barrel through the branches of the bush, and the butt resting on the ground. The corporal was close beside me. Signing to him to take the butt, I whispered: "Look here--I'm not going to fire on a man, alone, like that. Will you?" The corporal took hold of the rifle-butt. Then he said: "No, I won't either." We crept back into our trenches, on all fours. (248)
It should be noted that Lussu's duty to fire would be one that he owed strictly towards Italy under its domestic law as a citizen-soldier. (249)
Taken on its own, normative military necessity leaves Lussu at liberty, robustly permitting him, to fire. On this view, it is hot the case that Lussu ought to withhold fire. Normative military necessity also leaves him at liberty, moderately permitting him, to withhold fire. Consequently, it is not the case that Lussu ought not to withhold fire. Taken on its own, prescriptive humanity demands that Lussu avoid harming another human being. It follows that, according to prescriptive humanity, it is the case that Lussu ought to withhold fire. The two statements--it is not the case that Lussu ought to withhold fire and it is the case that Lussu ought to withhold fire--reveal a norm contradiction. The question, then, is this: would joint satisfaction be impossible between that part of normative military necessity, according to which Lussu was at liberty to fire, on the one hand, and prescriptive humanity, according to which Lussu ought to withhold fire, on the other?
In the event, Lussu withheld fire, as demanded by prescriptive humanity and thereby satisfied it. Since normative military necessity creates neither a corresponding duty nor a contrary duty that would be incumbent upon Lussu, he also satisfied normative military necessity by withholding fire. Thus, Lussu acted in a manner that generated joint satisfaction of the two sets of considerations. Admittedly, this joint satisfaction is modest in character, given the fact that Lussu declined to act upon a liberty (i.e., to fire) that was robustly permitted by normative military necessity. Had Lussu chosen to fire, however, he would not have jointly satisfied both considerations. His pursuit of the robustly permitted liberty according to normative military necessity would have come at the expense of the contrary humanitarian demand.
iii. Robust Permission, Exhortation and "Strong Pressure or Policy"
Could it be that normative military necessity's robust permission is analogous to what Munzer calls "a strong pressure or policy" (250) intimately related to the permission? This Article suggests that it is not. Munzer's description indicates that such a pressure or policy involves the combination of two elements. The first is what Munzer calls "a hideous violation of professional ethics, accepted morality, and express public policy" (251) that arises from failing to act on the permission at hand. The other is the existence of various corroborations, such as legal protection and incentives in favor of acting on that permission. (252) It would appear that no such combination of analogous elements can be round in the manner in which IHL norm-creation treats normative military necessity. (253)
In contrast, humanitarian exhortations might, indeed, be seen as somewhat analogous to "strong pressures or policies" intimately related to the corresponding permission. Such exhortations may not entitle their satisfier to specific legal protection or incentive, but failing to satisfy them might be considered deplorable--if perhaps not "hideous[ly]" so (254)--by accepted international morality or public policy. If, and to the extent that, such an analogy might be drawn, there would be possibilities of informal norm contradiction between a liberty backed by humanitarian exhortations on the one hand, and a contrary liberty robustly permitted by normative military necessity on the other.
c. Modest Joint Satisfaction and Its Consequences in IHL Norm-Creation
As with its firm counterpart, modest joint satisfaction comes in two forms. One is where forbearing a given conduct-kind is demanded or exhorted by prescriptive humanity and moderately permitted by normative military necessity. (255) By forbearing such a conduct-kind, the belligerent jointly, albeit modestly, satisfies both considerations. The same is true mutatis mutandis where it is the performance of a given conduct-kind that is demanded or exhorted by prescriptive humanity and moderately permitted by normative military necessity. (256)
The manner in which IHL "accounts for" those possibilities of modest joint satisfaction in the process of its norm-creation varies from one conduct-kind to another. Five distinct types of consequences are nevertheless discernible. They are: (i) the law validly posits a rule unqualifiedly obligating the pursuit of modest joint satisfaction with respect to the conduct-kind at issue; (ii) the law validly posits a rule principally obligating the pursuit of modest joint satisfaction with respect to the conduct-kind at issue; (iii) the law validly posits a rule indeterminately obligating the pursuit of modest joint satisfaction with respect to the conduct-kind at issue; (iv) the law validly posits a rule only exceptionally obligating the pursuit of modest joint satisfaction with respect to the conduct-kind at issue; and (v) the law declines or fails to validly posit a rule obligating the pursuit of modest joint satisfaction with respect to the conduct-kind at issue. Each of these consequences reveals unique characteristics of the interplay between normative military necessity and prescriptive humanity involved. It also shows what becomes of normative military necessity's robust permission not to pursue modest joint satisfaction.
i. Pursuit of Modest Joint Satisfaction Is Unqualifiedly Obligatory
A representative list of positive IHL rules unqualifiedly obligating the pursuit of modest forbearance-based joint satisfaction would include: rules prohibiting denying quarters; (257) rules prohibiting methods or means of combat intended or expected to cause widespread, long-term and severe damage to the environment; (258) rules prohibiting attacks on the civilian population or on individual civilians not directly participating in hostilities; (259) rules prohibiting the deliberate infliction of terror amongst civilians; (260) rules prohibiting starvation of civilians as a method of combat; (261) rules prohibiting the recruitment of children into the armed forces and their use in hostilities; (262) rules prohibiting the use of biological and chemical weapons, (263) anti-personal landmines, (264) and poisoned weapons; (265) rules prohibiting the use of POWs (266) or protected persons (267) as human shields; rules forbidding the Occupying Power to compel residents to furnish information; (268) rules prohibiting hostage-taking; (269) and rules prohibiting permanent forcible transfers and deportations. (270) As for the pursuit of modest performance-based joint satisfaction, one may cite, for example, the rule unqualifiedly obligating release of POWs with provisions in unusual conditions of combat. (271)
The fact that these IHL rules have been validly posited means that, with respect to the conduct-kinds concerned, their framers have elected to let the exhortations or demands of prescriptive humanity trump the robust contrary permission of normative military necessity. (272) Further, it also shows that the framers have elected to do so for all conceivable circumstances where the belligerent is presented with an opportunity to perform or forbear the conduct in question. By validly positing such rules, IHL extinguishes any liberty on the part of the belligerent to behave as robustly permitted by normative military necessity.
ii. Pursuit of Modest Joint Satisfaction Is Principally Obligatory
Numerous positive IHL rules principally obligate the pursuit of modest joint satisfaction and yet exceptionally authorize its non-pursuit. Consider, for example, those rules principally prohibiting the destruction of property yet exceptionally authorizing its destruction; (273) rules principally prohibiting the destruction of captured enemy and neutral merchant vessels yet exceptionally authorizing their destruction; (274) and rules principally prohibiting temporary evacuations of residents in occupied territories yet exceptionally authorizing them. (275) Mention may also be made of rules principally obligating the Detaining Power to allow internees to receive shipments that may meet their needs; (276) rules principally obligating combatants to distinguish themselves from the civilian population; (277) rules principally obligating attacking parties to give effective advance warning; (278) rules principally obligating belligerents to allow civil defense organizations to work; (279) at least implicitly, rules principally obligating the Detaining Power to allow correspondence between POWs and interns and the exterior; (280) and, at least implicitly, rules principally obligating parties to ensure the conveyance of mail and relief shipment. (281)
There is a set of rules that principally obligates the belligerent to allow and even assist humanitarian personnel in the discharge of their functions, yet exceptionally authorizes the belligerent to restrict or prohibit such discharge if and to the extent required by material military necessity. (282) By virtue of Article 126(1) (283) and Article 126(4) (284) of Geneva Convention III, representatives of the Protecting Powers and ICRC delegates have the right of visits and private interviews with POWs. Article 126(2) (285) contains a similar, albeit more restrictive, clause subject to the imperative character of the military necessity invoked and the exceptional and temporary nature of the prohibition imposed. Interestingly, this latter clause was inserted by the ICRC on its own initiative and adopted without discussion at the 1949 Diplomatic Conference. (286) A substantially identical set of provisions is round in Geneva Convention IV. (287) G.I.A.D. Draper observes:
This is perhaps the classical formula of the modern law of armed conflicts. It is a provision of paramount importance both for the ICRC upon whom the main duty of these visits devolves, and for the POW. Without the right to make such visits the supervisory system of the Geneva (POW) Convention is, in large part, rendered sterile. Places where such visits are likely to be subject to considerable restriction, certainly as to the timing of them, are interrogation centres and screening camps. It is in such places, frequently under the tight control of the Intelligence Services of the Detaining Power, that, experience shows, much of the unlawful treatment of POW takes place, generally under the desire to obtain military intelligence at all costs. When such places are freely accessible to non-military and para-military Intelligence Services the right of the Protecting Power or of the ICRC to make the visits envisaged in the Convention is the main humanitarian counter-balance to secret and cruel methods of interrogation. (288)
The adoption of these rules reveals that their framers have elected in principle to let humanitarian exhortations and demands take precedence over contrary liberties otherwise robustly permitted by normative military necessity. The law makes the pursuit of the joint satisfaction exhorted or demanded by prescriptive humanity and moderately permitted by normative military necessity principal obligatory whenever an opportunity to perform or forbear the conduct at issue presents itself. The obligatory nature of this pursuit ceases, however, if and to the extent that, in a particular situation, acting otherwise does, in fact, constitute a material military necessity.
The rules at issue obligate the forbearance of conduct-kinds deemed descriptively inhumane, and the performance of those deemed descriptively humane, where forbearing and performing thus also constitutes a material military non-necessity. It is important to remember that, qua conduct-instance, acting in deviation from the principal prescriptions of these rules can, and sometimes does, constitute a material military necessity. (289) Each such instance excepts the belligerent from his otherwise principal obligation to pursue modest joint satisfaction. In other words, through these rules, the law limits the liberty on the part of the belligerent to act as robustly permitted by normative military necessity to specific situations where it is, in fact, consistent with material military necessity to do so.
iii. Pursuit of Modest Joint Satisfaction Is Indeterminately Obligatory
Certain positive IHL rules indeterminately obligate the pursuit of modest joint satisfaction. The interplay between normative military necessity and prescriptive humanity involved leaves their precedence vis-a-vis each other unsettled. The resulting rule both authorizes the non-pursuit of modest joint satisfaction if, and to the extent robustly permitted by normative military necessity, and obligates its pursuit if, and to the extent exhorted or demanded by prescriptive humanity. In so doing, the rule does not specify the point at which the authorized non-pursuit gives way to the obligatory pursuit by reference to one set of considerations or the other. The framers effectively transfer the burden of discovering this point to those adjudicating or governed by the rule.
Those rules concerning proportionality in attacks and the use of weapons of a nature to cause superfluous injury and unnecessary suffering (290) arguably exemplify this outcome. (291) Similarly, with respect to the use of incendiary weapons, the U.K. manual observes: "Although these weapons can cause severe injury to personnel, their use is lawful provided the military necessity for their use outweighs the injury and suffering which their use may cause." (292) Reference may also be made to those rules obligating humane but militarily unnecessary action "as far as military considerations permit," (293) "whenever circumstances permit," (294) and "to the maximum extent feasible." (295)
iv. Pursuit of Modest Joint Satisfaction Is Exceptionally Obligatory
Several examples of positive IHL rule embracing this consequence may be noted here. For instance, customary IHL principally authorizes the declaration and establishment of blockades. (296) Conversely, in principle, the blockading party is customarily authorized to deny free of essential goods to blockaded ports. (297) One set of rules stands passage out for their unusually high degree of convulsion. The rules in question are Article 33(2) of Geneva Convention I (298) and Article 28 of Geneva Convention II. (299) These provisions principally authorize the commander to make use of the objects concerned in accordance with the "laws of war." (300) The rules then exceptionally obligate the commander not to do so if and to the extent that forbearance proves descriptively humane, i.e., insofar as the objects are required for the care of the wounded and sick. Intriguingly, this obligation of non-diversion is again subject to a further exception if and to the extent required by urgent material military necessity. The latter exception is available, however, only once prescriptive humanity's demand, i.e., proper care of those nursed therein, has been ensured, (301)
By validly positing these rules, their framers have elected principally to let normative military necessity's robust permission trump prescriptive humanity's contrary exhortations or demands--the latter being where the modest joint satisfaction lies--with respect to the conduct-kind in issue. The belligerent's liberty to act as robustly permitted by normative military necessity is no longer limited to specific situations where it is, in fact, consistent with material military necessity to do so. On the contrary, the liberty remains in place regardless of whether its pursuit constitutes a material military necessity or non-necessity.
What matters instead is the fact that, qua conduct-instance, the contrary action can sometimes be descriptively humane. (302) Although principally optional, the pursuit of modest joint satisfaction becomes exceptionally obligatory, and the contrary liberty exceptionally unavailable, in cases where the said pursuit does in fact prove descriptively humane.
It might be said that those in favor of upholding a duty to "capture rather than kill" in combat are effectively seeking to have it recognized as a positive IHL rule under this heading, (303) Their opponents would counter by claiming that the matter falls into situations described below where there is no positive IHL rule obligating non-killing.
v. Pursuit of Modest Joint Satisfaction Is Not Obligatory
One last set of consequences of interest to us concerns situations where IHL declines or fails to validly posit a rule obligating the pursuit of modest joint satisfaction. The law may decline to do so by validly positing rules affirmatively authorizing non-pursuit. Consider, for example, rules authorizing the Detaining Power to intern POWs; (304) rules authorizing the belligerent to search and control medical vessels; (305) rules authorizing the Occupying Power to confiscate such state property in occupied territory as may be used for military operations; (306) and rules withholding inviolability of postal correspondence in case of blockade violations. (307)
More often, however, the relevant conduct-kinds are found through the absence of positive IHL rules. Examples include the absence of rules prohibiting attacking or disabling eligible enemy combatants (including airborne troops during their descent (308); the absence of rules prohibiting even the deliberate infliction of terror upon enemy combatants; the absence of rules prohibiting starving enemy combatants as a method of combat; (309) the absence of rules prohibiting the cessation of protection for medical units, personnel, and materiel used to commit acts harmful to the enemy; (310) the absence of rules prohibiting the Detaining Power from censoring correspondence between POWs (311) or internees (312) with the exterior; the absence of rules prohibiting the Occupying Power from collecting contributions and requisitions; (313) and the absence of rules obligating the belligerent to grant requests by its adversary for medical flights. (314)
The framers of these IHL rules have elected to grant robust permissions of normative military necessity unfettered priority over contrary exhortations or demands of prescriptive humanity. With respect to these conduct-kinds, the law leaves the belligerent entirely at liberty to act as robustly permitted by the former. It in no way matters whether acting in such a manner happens to constitute a material military necessity or non-necessity at a particular moment, nor is it material whether contrary action happens to be descriptively humane or inhumane. Acting as exhorted or demanded by prescriptive humanity, and thereby acting in modest joint satisfaction, is now entirely optional whenever the belligerent is presented with an opportunity to do so.
Elsewhere, the absence of a positive IHL rule obligating the pursuit of modest joint satisfaction may imply the law's failure to do so. (315) Arguably, the International Court of Justice's agnosticism regarding the lawfulness or otherwise of the use or threat of nuclear weapons in certain circumstances is a case in point, (316) Also, in its study on customary IHL, the ICRC conceded that the law is not clear as to whether belligerent reprisals against civilians during hostilities are lawful or unlawful outside Additional Protocol I. (317) The law arguably leaves it unclear whether a party is duty-bound, in contact zones as well as areas it controls, to grant protection to medical flights of an adversary where no prior agreement has been reached to permit such flights and before they are recognized as such. (318) Nor is it clear whether a state party bound by Additional Protocol II is obligated to ensure supplies essential to the survival of the civilian population. (319) There is no clear IHL rule obligating civilians directly participating in hostilities, continuously or otherwise, to distinguish themselves from non-participating civilians; (320) or obligating parties with advanced, precision-guided weapons to exhaust such weapons first. (321)
A question arises as to whether IHL contains any generally permissive or prohibitive presumptions with respect to conduct-kinds not specifically regulated by its positive rules. It is not our purpose here to explore the matter further. Suffice it to note that military necessity does not per se create a generally operative layer of normative significance, whether permissive a la Kriegsrason, or restrictive a la counter-Kriegsrason, over and above positive IHL rules. (322)…
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Publication information: Article title: Military Necessity as Normative Indifference. Contributors: Hayashi, Nobuo - Author. Journal title: Georgetown Journal of International Law. Volume: 44. Issue: 2 Publication date: Winter 2013. Page number: 715+. © 2008 Georgetown University Law Center. COPYRIGHT 2013 Gale Group.
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