Unsatisfying Wars: Degrees of Risk and the \u3ci\u3eJus ex Bello\u3c/i\u3e

Self-defensive war uses violence to transfer risks from one’s own people to others. We argue that central questions in just war theory may fruitfully be analyzed as issues about the morality of risk transfer. That includes the jus ex bello question of when states are required to accept a ceasefire in an otherwise-just war. In particular, a “war on terror” that ups the risks to outsiders cannot continue until the risk of terrorism has been reduced to zero or near zero. Some degree of security risk is inevitable when coexisting with others in the international community, just as citizens within a state must accept some ineradicable degree of crime as a fact of community life. We define a conception of morally legitimate bearable risk by contrasting it with two alternatives, and argue that states must stop fighting when they have achieved that level. We call this requirement the Principle of Just Management of Military Risk. We also argue that states should avoid exaggerated emphasis on security risks over equivalent risks from other sources—the Principle of Minimum Consistency Toward Risks. This latter principle is not a moral requirement. Rather, it is a heuristic intended to correct against well-known fallacies of risk perception that may lead states to overemphasize security risks and wrongly export the costs of their security onto others. In conclusion, we suggest that states must invest in non-violent defensive means as a precondition for legitimately using force externally

On a Differential Law of War

Should the United States, as the strongest military power in the world, be bound by stricter humanitarian constraints than its weaker adversaries? Would holding the U.S. to higher standards than the Taliban, Iraqi insurgents, or the North Korean army yield an overall greater humanitarian welfare or be otherwise justified on the basis of international justice theories? Or would it instead be an unjustifiable attempt to curb American power, a form of dangerous "lawfare”? The paper offers an analytical framework through which to examine these questions. It draws on the design of international trade and climate agreements, where obligations have been linked to capabilities through the principle of Common-but-Differentiated Responsibilities (CDRs), and inquires whether the justifications that have been offered for CDRs in these other regimes are transposable to the laws of war. More broadly, the framework tests the extent to which war can and should be equated to other phenomena of international relations or whether it is a unique context that resists foreign analogies. Rather than offering a definitive answer, the inquiry illuminates the types of judgments and predictions that one must hold in order to have a position on the desirability of CDRs in international humanitarian law, most notably, the degree to which weaker adversaries will be prone to abusing further constraints on stronger enemies, the expected effects of CDRs on the propensity to go to war, who on the enemy’s side is the “enemy,” and what are the duties that are owed to one’s enemies

Bilateralism, Multilateralism, and the Architecture of International Law

This paper studies the different roles, impact, and operation of bilateral treaties and multilateral treaties as structures within the architecture of international law. I observe that the preference for bilateralism or multilateralism in international lawmaking is often determined not by an informed choice but by an instinctive association of political schools or bureaucratic affiliations with different forms of international regulation. This association, however, is not always founded on a just appreciation of the workings of either form in various contexts or of the way in which the two interact with each other. I set out to offer a framework for such an appreciation and assess the workings of multilateral treaties and bilateral treaties along three dimensions: the contribution of the respective instruments to the advancement of an international rule of law; the operation of the regime in terms of its effectiveness, efficiency, and compliance; and the democratic legitimacy of the making of each regime. I demonstrate that ideologies and values that seem to be almost blindly associated with one type of regulation may be actually better served, in some cases, by using the other type. Ultimately, this paper attempts to chart a course for more theoretical and empirical forays into the questions of why states join particular types of treaties and how these different types of treaties, or a combination of them, promote or obstruct the attainment of various goals within the architecture of international law

The Shadow of Success: How International Criminal Law Has Come to Shape the Battlefield

The rise of international criminal law (ICL) has undoubtedly contributed to the development and enforcement of international humanitarian law (IHL). Yet, there are also important and oft-overlooked ways in which it has done the opposite. By labeling certain violations of the laws of war as “criminal” and setting up dedicated mechanisms for prosecution and punishment of offenders, the content, practice, and logic of ICL are displacing those of IHL. With its doctrinal precision, elaborate institutions, and the seemingly irresistible claim of political and moral priority, ICL is overshadowing the more diffuse, less institutionalized, and more difficult to enforce IHL. But if ICL becomes the dominant lens through which battlefield activity is measured, it is not merely intellectually unsatisfying; it poses a serious risk to the attainment of the very same humanitarian values that ICL seeks to protect. Consider the fact that in many wars fought today, the majority of civilian deaths and injuries does not result from acts that could be classified as war crimes, but from the more “mundane” choices of means and methods of warfare that at most would lend themselves to IHL scrutiny. Rather than diminishing the importance of ICL, this article calls for more attention to the ways in which ICL is impacting IHL as well as for a stronger commitment by States to the application and enforcement of IHL for its own sake

Law of Policy of Targeted Killing

This is a chapter from our forthcoming book, 'Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism', (MIT Press, September 2010). This chapter addresses the legal, ethical, and strategic aspects of targeted killings as a counterterrorism measure, drawing on the American and Israeli experience. We argue that since terrorism is neither a traditional war nor a traditional crime, its non-traditional nature must affect how, where, and when we employ targeted killings. Specifically, we argue that whether one begins with a law enforcement model or a war model in mind, the ultimate contours of justifiable targeted killings are very similar under either paradigm

War for the Wrong Reasons: Lessons from Law

In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is mor-ally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility

The Dispensable Lives of Soldiers

Why are all soldiers fair game in war? The laws of war, under their current interpretation, divide up populations into two classes – that of civilians and that of combatants – and accord each its own set of privileges and obligations. Taken together, the legal principles of military necessity and distinction strike up a bargain by which combatants are to be sacrificed for the protection of civilians. Under this bargain, all soldiers are fair game, regardless of their role, function, or the degree of threat they pose at any particular moment. Consequently, the killing of retreating soldiers in Iraq, the attack on officials meeting in Korea or shooting soldiers playing soccer in Bosnia – are all legitimate military operations. This paper challenges the status-based distinction of the laws of war, which has so far been widely accepted by international law scholars, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. My argument stems from a recognition of the value of all human life, including that of enemy soldiers. I argue that the changing nature of wars – the decline in the importance of any generic ‘combatant,’ the growing civilianization of the armed forces, and the advance in technology – casts doubts on the necessity of killing all enemy soldiers indiscriminately. I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible. I discuss the practical and normative implications of adopting these amendments, suggesting some possible legal strategies of bringing them about

Celiac Disease: Current and Investigational Therapies and the Role of the Pharmacist

Celiac disease is a genetically-linked autoimmune disease which affects the gastrointestinal tract. It is an inflammatory reaction to ingested gluten-containing substances that produces the most frequent symptoms of abdominal pain, bloating and intermittent or chronic diarrhea. Diagnosis can be made by blood testing for specific IgA autoantibodies and a confirmation duodenal biopsy to look for the characteristic scalloping and villous atrophy that occurs in response to the inflammation. A gluten-free diet, until recently, was the only treatment available and continues to be the mainstay of treatment. Newer adjunct therapies to dietary management include larazotide acetate, peptidases, the use of parasite Necator americanus, a desensitizing vaccine, polymeric binders, cytokine antagonists, tissue transglutaminase inhibitors, probiotics and anti-inflammatory therapy. This review will outline the potential of each of these therapies and discuss the role of the pharmacist in assisting patients with Celiac disease

Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism

The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate international humanitarian law (IHL) protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly. In studying the IHL regime applicable to medical care, substantive fragmentation and gaps in legal protection between states and across types of conflict emerge. These ruptures are not new. But they are increasingly noticeable as terrorism is more frequently conceptualized as forming part of armed conflicts and as more states undertake aggressive responses to terrorist threats. The U.N. Security Council has been a key driver of these responses, requiring member states to take more and broader steps to obviate terrorist threats. Yet so far the Council has not required that, in doing so, states fully exempt impartial wartime medical care, even in circumstances that would render such care protected under IHL. Rather, the Council seems to consider providing medical assistance and supplies to al-Qaeda and its associates as at least a partial ground for designating those who facilitate such care as terrorists themselves. The overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists through medical care in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail impartial medical care there is no clear IHL violation. Both those actual IHL violations and the lack of clear IHL violations, we think, are cause for concern. The former represent failures to implement the legal regime. And the latter highlight the non-comprehensiveness— or, at least, the indeterminateness and variability — of the normative framework