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Published online by Cambridge University Press: 04 July 2014
This comment to Jeff McMahan's thought-provoking contribution does not aim to take issue with the interesting and rather compelling philosophical arguments he raises in support of moral-based norms. In the same vein, the comment does not criticize the way in which McMahan describes the international law doctrines governing war situations—a description which is generally accurate. Instead, I comment on the policy reasons that have led international law-maker to move away from some of the morality-based distinctions and normative choices expounded by McMahan. Hence, my focus in this comment is on the pragmatic constraints that limit the influence of moral ideas on the laws of war. Of course, the resort to pragmatism may be in itself morally justifiable, as the insistence on the application of pragmatic consideration is often linked to the promotion of laudable goals—aversion of war and reduction of casualties and damage. Hopefully, a better understanding of the reasons underlying the rejection of “pure morality” in the context of the regulation of war would contribute to a critical assessment of the desirability of McMahan's ideas and to identification of the institutional conditions that could facilitate their application.
Hersch Lauterpacht Chair in Public International Law, Faculty of Law, The Hebrew University of Jerusalem.
1 McMahan, Jeff, Précis: The Morality and Law of War, 41 Isr. L. Rev. 670–683 (2007)CrossRefGoogle Scholar.
2 For a similar argument, see West, Robin L., Liberalism Rediscovered: A Pragmatic Definition of the Liberal Vision, 46 U. Pitt. L. Rev. 673, 680–682 (1985)(advocating resort to “pragmatic liberalism”)Google Scholar.
3 For a similar argument, see McMahan, supra note 1, at 679 (“there is a just cause for war only when those against whom the war is directed—that is, those who are intentionally attacked and killed by military means—have made themselves liable to be attacked or killed”).
4 See, e.g., Magenis, Sean D., Natural Law as the Customary International Law of Self-Defense, 20 B.U. Int'l L.J. (2002) 413 Google Scholar.
5 See, e.g., Dinstein, Yoram, Comments on War, 27 Harv. J.L. & Pub. Pol'y 877, 877–879 (2004)Google Scholar.
6 McMahan, supra note 1, at 670.
7 See, e.g., Gardam, Judith Gail, Proportionality and Force in International Law, 87 Am. J. Int'l L. 391, 403 (1993)CrossRefGoogle Scholar.
8 Dinstein, supra note 5, at 878.
9 See, e.g., Caron, David D., War and International Adjudication: Reflections on the 1899 Peace Conference, 94 Am. J. Int'l L. 4, 7–8 (2000)CrossRefGoogle Scholar.
10 For a discussion of the facts of the “Caroline” incident, see Green, James A., Docking the Caroline: Understanding the Relevance of the Formula in Contemporary Customary International Law concerning Self-Defense, 14 Cardozo J. Int'l & Comp. L. 429, 433–436 (2006)Google Scholar; Occelli, Maria Benvenuta, “Sinking” the Caroline: Why the Caroline Doctrine's Restrictions on Self-Defense Should Not Be Regarded as Customary International Law, San Diego Int'l L.J. 467, 470–474 (2003)Google Scholar.
11 Webster, Daniel, The Diplomatic and Official Papers of Daniel Webster while Secretary of State 104–110 (1848)Google Scholar.
12 For discussion of two possible types of proportionality, see McMahan, supra note 1, at 681.
13 But see Totten, Mark, Using Force First: Moral Tradition and the Case for Revision, 43 Stan. J. Int'l L. 95, 116–119 (2007)Google Scholar(“just war” doctrine influenced the Webster formula).
14 Charter of the United Nations, art. 2(4). (“All Members shall refrain in their international relations from the threat or use offeree against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”). Another important legal milestone is the 1928 Kellogg-Briand Pact outlawing wars. Treaty for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 94 L.N.T.S. 57.
15 Charter of the United Nations, art. 51, supra note 14.
16 Id.
17 Military and Paramilitary Activities in and Against Nicaragua (Nicar.v. U.S.), 1986 I.C.J. 14(June 26), at para. 94 [hereinafter Nicaragua v. U.S.]; The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8), at para. 41 [hereinafter Nuclear Weapons]; Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 187 (Nov. 6) [hereinafter Oil Platforms case]; Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 116, (Dec. 19), at paras. 147 [hereinafter DRC v. Uganda].
18 Nicaragua v. U.S. supra note 17, at para. 195; Oil Platforms case, supra note 17, at para. 187.
19 Additional support to this contention can be found in UN Docs. S/Res/1368 (2001) and S/Res/1373 (2001) which appear to affirm the right to self-defense against an armed attack originating from the territory of a foreign state, notwithstanding its lack of legal responsibility for the attack. But see, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9), at para. 194; Nicaragua v. U.S., supra note 17, at para. 146-147 (armed attacks not imputable to a state do not give rise to a right of self-defense).
20 See, e.g., Brownlie, Ian, International Law and the Use of Force by States 281 (1963)CrossRefGoogle Scholar; Bowett, Derek W., Self-Defence in International Law 13 (1958)Google Scholar; Dinstein, Yoram, War, Aggression and Self-Defence 194–203 (3rd ed. 2001)CrossRefGoogle Scholar.
21 See, e.g., Henkin, Louis, NATO's Kosovo Intervention: Kosovo and the Law of “Humanitarian Intervention,” 93 Am. J. Int'l L. 824 (1999)CrossRefGoogle Scholar.
22 See generally, Uhlmann, Michael M., The Use and Abuse of Just-War Theory, Claremont Rev. Books (Summer 2003), available at http://www.claremont.org/publications/crb/id. 1050/article_detail.asp (last visited October 28, 2007)Google Scholar.
23 See, e.g., Coverdale, John F., An Introduction to the Just War Traditions, 16 Pace Int'l L. Rev. 221, 235 (2004)Google Scholar.
24 See United Nations Charter, art. 42, supra note 14.
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
25 See, e.g., Henkin, Louis, Use of Force: Law and U.S. Policy, in Right V. Might: International Law and the Use of Force 37, 38–39 (Henkin, Louis et al. eds., 2d ed. 1991)Google Scholar.
26 United Nations Charter, art. 51, supra note 14.
27 Nicaragua v. U.S., supra note 17, at para. 195.
28 This is particularly in light of the inclination to view aggression as an international crime. Rome Statute of the International Criminal Court, July 17, 1998, art. 5, 2187 U.N.T.S. 90.
29 See, e.g., Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UN General Assembly Resolution 2625 (XXV), UN Doc. A/5217 at 121 (1970).
30 McMahan, supra note 1, at 679.
31 Declaration Renouncing the Use, in Time of War, of Certain Explosive Projectiles, 29 Nov./11 Dec. 1868, 138 Consol. T.S. 297.
32 See, e.g., Hague Regulations on the Laws and Customs of War on Land: October 18, 1907, art. 23(e), 205 Consol. T.S. 277.
33 See, e.g., Meron, Theodor, The Humanization of Humanitarian Law, 94 Am. J. Int'l L. 239 (2000)CrossRefGoogle Scholar.
34 This idea was captured by Rousseau, who wrote that:
War is not between individuals, it is between States. In war, the accidental enmity among individuals that occurs is not because they are acting in their capacity of an individual, but in that of a citizen. They are not acting as elements of their State but rather as its protectors. Rousseau, Jean Jacques, Social Contract (1762)Google Scholar, reprinted in Basic Political Writings of Jean-Jacques Rousseau 145 (Cress, Donald A. trans. & ed., 1987)Google Scholar.
35 Some have believed that significant moral virtue is associated with the bravery that participating in war requires. See, e.g., Wells, Henry W., A Philosophy of War: The Outlook of Robinson Jeffers, 6 College English 81 (1944)CrossRefGoogle Scholar.
36 Note that under Article 44 of the First Additional Protocol, even a combatant that has perpetrated war crimes retains his POW status upon capture (although she may be tried for such crimes). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, art. 44(2), 1125 U.N.T.S. 3.
37 See Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict 99 (2004)CrossRefGoogle Scholar.
38 HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel (not yet published)(given December 11, 2006), at para. 36.
39 McMahan, supra note 1, at 678-679.
40 U.S. v. List (Hostages case), VIII Law Reports of Trials of Major War Criminals 38, 59 (1949).
41 Id.
42 Dinstein, supra note 37, at 4-5.
43 UN Doc. S/RES/687 (1991), at para. 33.
