The following is a guest post from Ryan Goodman, continuing a conversation begun yesterday in this post from Geoff Corn, Laurie Blank, Chris Jenks, and Eric Jensen.
What the Critics of the “Lesser Evil” Rule (Still) Get Wrong: A Rejoinder to Corn, Blank, Jenks, and Jensen
by Ryan Goodman
I recently wrote that the law of armed conflict places constraints on the decision to kill or capture enemy fighters. In a guest-post on Lawfare, Professors Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen wrote a criticism stating that my claims are “flawed” and constitute “a dangerous misinterpretation” of the law that could not withstand “even a cursory review” of the sources. Lawfare’s editors graciously invited me to respond.
My specific claim remains unchanged: The law of armed conflict requires belligerents, in some circumstances, not to kill enemy combatants when there is no military need to do so. That rule applies, for example, when capture is equally effective and imposes no risk to the attacking party’s armed forces. Let’s call this the “lesser evil” rule for short.
As Lawfare readers may know (see here), I recently posted my forthcoming article in the European Journal of International Law which backs up those claims. As Jack Goldsmith noted last week, an Op-Ed I wrote in Slate is based on—and referred interested readers to—my forthcoming EJIL article for the complete argument.
Yet Professors Corn, Blank, Jenks, and Jensen (CBJJ) chose to engage my analysis in the Op-Ed without engaging the scholarly article on which the Op-Ed is based. And without reference to the latter, they state that it “is simply perplexing” how my argument could possibly be reconciled with other parts of the law of armed conflict. In fact, many of their points are not only preempted by the article, but also interrogated under the light of a searching historical inquiry that uncovers extensive evidence supporting my position. Moreover, I go to great lengths in the law review article to set their general view on its strongest footing, and I raised additional formidable arguments that proponents of their view have not presented in their own defense (see discussion of law of perfidy and reprisals pp. 10-11). Since my scholarly article answers many of CBJJ’s critiques in full, let me outline some of those arguments here.
In the EJIL article, I study three dimensions of the laws of war: (1) the (admittedly opaque) general structure and history of the legal regime which, in limited but important circumstances, is designed to alleviate the suffering of enemy fighters; (2) the definition of hors de combat protections that apply (very clearly) to enemy soldiers even if they have not surrendered including (admittedly less clearly) defenseless soldiers in the power of their adversary (article 41 of the 1977 Geneva Protocol) (pp. 20-26); and (3) the prohibition on superfluous injury or unnecessary suffering that (on balance, clearly) includes the lesser evil rule (article 35 of the 1977 Protocol).
I. Misrepresentation or misunderstanding of my position
CBJJ make numerous statements about my argument that are incorrect. I take responsibility for lack of clarity that might have caused any confusion. I try to be as clear and detailed about my argument in the article. Let me clarify several points here. First, neither the Op-Ed nor the scholarly article make a simple “assertion that the general principles of military necessity and humanity” entail the lesser evil rule. I derive the rule—both in the Op-Ed and in the article—primarily from the specific prohibition on superfluous injury and unnecessary suffering. Second, my argument is not “in effect a proportionality constraint.” In the Op-Ed, I specifically eschewed such an implication by stating that the attacking force would not need to apply the rule if it imposed a risk to themselves. In the law review article, I do explore the possibility of a proportionality test, for which I find some, but ultimately unclear, support. I conclude instead that a mountain of evidence supports a lesser evil rule that declines a proportionality analysis and includes only the question whether there is a military need for killing instead of capture. Third, CBJJ suggest that I might be laboring under “a misconception that the objective of employing force is to defeat individuals, as opposed to the enemy in the collective sense.” The law review article, however, examines that issue in detail and concludes that the lesser evil rule can incorporate the broader definition of military objectives and, indeed, even a broader one than CBJJ suggest (p. 36). There will still be situations in which the calculus is strictly about removing an individual from the battlefield. And there are, of course, other situations in which the broader military objective of defeating the collective enemy force is at issue, but the lesser evil rule will still turn on whether the kind or degree of force obtains military benefits along that broader dimension. Finally, CBJJ suggest that the lesser evil rule imposes a requirement “to exhaust the option to capture.” I am not sure what that means, but it sounds onerous and excessive, and is not my position. It is not something I suggest in the Op-Ed. And, in the article I elaborate a series of conditions that could qualify the application of the lesser evil rule (pp. 11-16), including a presumption in favor of lethal force unless it is shown to be manifestly unnecessary.
II. Points of agreement and divergence
CBJJ state that the ICRC published an Interpretive Guidance in 2009 that reaches essentially the same bottom line as my article. They also state that some of the experts who were involved earlier in the ICRC study reported being gravely disappointed in the process and published severe criticisms of the substantive conclusions. I agree. In fact, I make those points myself and I tried to cite every critical review of the ICRC report (see footnote 17).
The bulk of those published criticisms, however, are brief and conclusory. And many of them essentially refer readers to the leading article by Colonel Hays Parks as the support for their position. Indeed, my EJIL article directly engages Colonel Parks’s article, because it is the most developed and sophisticated criticism of the ICRC study. What CBJJ do not mention, however, is that I show several critical flaws in Colonel Parks’s analysis, which: overlooked voluminous support for the “lesser evil” rule among states in intergovernmental meetings leading up to the 1977 Protocols; misattributed an important quotation to Jean Pictet that was, on the contrary, voiced by a group of leading experts on the subject; mistakes one of the important governmental conferences in the 1970s for another meeting; suggests that Frits Kalshoven rejected Pictet’s view (see footnote 166) without mentioning that Kalshoven’s essay ends with a strong endorsement of Pictet’s position (p. 37); and did not examine (see footnote 193) several parts of the ICRC Commentaries to the 1977 Protocol that directly support my interpretation of Article 35.
More fundamentally, CBJJ repeat some of these very same errors. They state, for example, that the unnecessary suffering principle “has never prohibited or limited a party’s authority to lethally target an opponent” and that “nothing in the law supports this approach.” As I show in the article, these categorical statements overlook clearly contrary evidence including: (1) an important report by the UN Secretary-General in 1970 ; (2) the ICRC Draft Protocol and accompanying commentaries in the early to mid-1970s (e.g., stating “capture is to be preferred to wounding, and wounding to killing; that the wounding should be effectuated in the least serious manner”); (3) statements by governmental representatives in the Ad Hoc Committee on Conventional Weapons of the Diplomatic Conference (pp. 33-34); (4) statements by states at an important conference in Lucerne in 1974 (including the statement by the Australian Ambassador that “[t]here already seems a wide measure of agreement that as few as possible should be killed, no more than necessary should be wounded and those lightly rather than gravely”); and (5) the ICRC Commentaries on the 1977 Protocol’s travaux concerning article 35 itself as well as related articles (e.g., referencing situations in which the use of force against a combatant “should be proportional to the measure of the danger” (commentary to article 41); discussing situations in which individuals “should be taken under fire only if there is no other way of neutralizing them” (commentary to article 44); discussing how article 35 entails “the right to apply that amount and kind of force which is necessary to compel the submission of the enemy with … the minimum loss of life .... If this were not the case, the description would be completely inadequate” (pp. 42-44)).
CBJJ also repeat the error of describing Pictet’s position as a “singular aspirational statement”—essentially unique to Pictet and uttered in his personal capacity. My article is replete with counterexamples disproving that account. In fact, I believed that no commentator could make such a statement again after reading my article. The article documents many other independent experts and governmental representatives who explicitly and implicitly endorsed Pictet’s view as existing law at the time.
Finally, I must address CBJJ’s contention that my position would be impractical if applied in military operations. This is an odd contention for a few reasons. First, as CBJJ admit, the US government already adopts the standard as a matter of policy preference in our armed conflict with Al Qaeda and associated forces. Second, as they admit, the US government adopts a “feasibility of capture” standard as a legal constraint in targeting members of Al Qaeda and associated forces who are US citizens. Third, as CBJJ acknowledge, other states’ armed forces (e.g., Israel) operate with a lesser evil rule in their asymmetric wars with terrorists groups. Colombia is a prominent example of a state that has, in fact, directly incorporated the ICRC Guidance in their asymmetric armed conflict with a terrorist group. Perhaps CBJJ conclude that my position is impractical because they misconstrue what it is (see Part I above).
In sum, I hoped to contribute to this exceptionally important area of the law through my article by presenting original research that takes both sides of the debate seriously. I intended the work to serve as a next step in the conversation, and a new point of departure for examining these issues. My concern is that CBJJ take the debate two steps backward rather than one step forward. I appreciate, for example, Captain Ian Henderson’s criticisms of my article. And EJIL will be hosting a reply and rejoinder as well as an online symposium on the issue. I look forward to future engagement on scholarship that I hope takes us to the next stage in unpacking this vexing area of the law of armed conflict. In that endeavor, I agree with CBJJ on one key point: in this area of warfare it is important not to end up “[c]onfusing what the law is with what one might believe it should be.”