Published by The Lawfare Institute
in Cooperation With
In a second round, Professors Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen (CBJJ 2.0) present a revised set of criticisms of my argument. Once again, Lawfare’s editors have graciously invited me to respond. At the outset, let me say that I appreciate how CBJJ 2.0 now interrogate the research and analysis in my law review article and thus move the conversation forward.
CBJJ start the second round by saying, “we (unsurprisingly) stand by our original position.” Actually, they don’t. First, they appear to have moved from claiming that there is no conceivable evidence to support my position to claiming that I am overstating the evidence. Second, they no longer portray my argument as an extreme position requiring belligerents “to exhaust the option to capture.” Third, once challenged, they have implicitly backed off their claim that Jean Pictet’s statement expressing the lesser evil rule was singular and personal. Finally, it is notable that CBJJ do not refute the flaws that I identify in Colonel Hays Parks’s leading article—which arguably provided the backbone for the conventional wisdom that they drew upon in their original analysis.
That said, CBJJ do not alter their final conclusion. At its core, CBJJ’s position amounts to the following: the laws of war permit parties to a conflict to kill enemy combatants even when there is (clearly and absolutely) no military benefit in doing so.
In contrast, I claim that the law requires belligerents, in some circumstances, not to kill enemy combatants when it achieves no military benefit--for example, when capture is equally effective and does not endanger the attacking party’s armed forces. I claim that this “lesser evil” rule—or “unnecessary killing” rule—originates in the 1868 Saint Petersburg principle that the only legitimate military objective is to remove a soldier from the battlefield or, in a collective sense, to defeat enemy forces. I show that this prohibition on unnecessary killing is embodied in the modern prohibition on “superfluous injury or unnecessary suffering.” And I demonstrate that this concept is precisely what the ICRC informed states was the meaning of draft Article 35 of the 1977 Protocol, and it is what states negotiating the Protocol understood they were doing when they codified the rule.
In this response, I first address mischaracterizations of my position by CBJJ 2.0, and I then discuss matters of substantive disagreement.
I. Mischaracterizations of my position 2.0
A. Distortions directed at me
Although I appreciate CBJJ 2.0’s new approach to the debate, I do need to highlight some strange and unfortunate misrepresentations by CBJJ 2.0 of views that I expressed in my reply to them. These are strange misrepresentations because readers who read my initial post will readily see the distortion. And they are unfortunate because they detract from a substantive discussion.
First, CBJJ 2.0 state: “Contrary to his assumption, we had each read his article before we responded to his Slate op-ed.” I made no such assumption. I stated that CBJJ 1.0 “chose to engage my analysis in the Op-Ed without engaging the scholarly article on which the Op-Ed is based.”
Second, CBJJ 2.0 state that I make an “assertion that anyone who reads his article must agree with his conclusions.” As readers will know, I challenged a specific historical claim that CBJJ 1.0 made. In their first post, CBJJ 1.0 stated that Jean Pictet’s expression of the lesser evil rule was a “singular” statement essentially unique to Pictet and uttered only in his personal capacity. As I explained in my first reply, my article is replete with direct evidence that discredits that revisionist account. (The article quotes numerous actors expressing the very same lesser evil rule, and explicit and implicit endorsements of Pictet’s view by states and some other commentators. For example, text accompanying notes 148; 157; 159; 176; 182; 183). In my reply to CBJJ 1.0, I submitted that it was obviously mistaken to repeat the Pictet fallacy given how (easily and thoroughly) debunked it is in the article. One can naturally disagree with all sorts of conclusions that I draw in the article, but the CBJJ 1.0 statement about Pictet is a proven falsehood.
I should add one note here. In my reply to CBJJ 1.0, I also mentioned that I respected Ian Henderson’s criticisms of my EJIL article. (I have also previously tweeted the same respectful sentiment, and indicated it in my reply to Henderson himself.) CBJJ 2.0 try to turn respectful recognition of a critic into a supposed “irony”: I purportedly assert that anyone who reads my article must agree with my conclusions yet I recognize Henderson who disagrees. I’ll leave the matter here: this is a regrettable line of attack.
Let’s turn to the substance.
B. Misrepresenting or misunderstanding my argument
In terms of the law of armed conflict, CBJJ 2.0 make some statements about my substantive positions that fail to represent my views accurately. As always, I take responsibility for any confusion that may have been created by lack of clarity on my part. Let me clarify my positions here in two respects.
First, CBJJ 2.0 state that “the Slate op-ed … portrayed Section IX [of the 2009 ICRC Interpretive Guidance] as a position generally accepted, with only so-called ‘outliers’ like Hays Parks and Michael Schmitt objecting.” I honestly do not know what CBJJ are talking about. I make no reference (or allusion) to Section IX of the ICRC study in the Slate piece. I do include a favorable quotation from the ICRC—back in the 1970s—and perhaps CBJJ confuse that with the ICRC study of 2009. Also, in the Op-Ed, I make no reference to “outliers,” or name any names in that respect. On the contrary, I would not call Colonel Parks or Schmitt outliers for their opposition to the lesser evil rule. To the contrary: in the Op-Ed, I describe the contemporary (post 9/11) view -- that no lesser evil rule exists -- as “mainstream.”
Perhaps CBJJ 2.0 meant to refer to my Lawfare post replying to them—where I do discuss Section IX and I do refer to Colonel Parks (and, for close observers, I also implicitly refer to Schmitt’s work). But I do not describe them as outliers; not by a longshot. In the Lawfare post, I explained that they represent the dominant view, and I referred readers to my EJIL article (footnote 17) for a long list of commentators who have sided with Parks’s (and Schmitt’s) criticism of the ICRC report.
Second, CBJJ 2.0 state: “in his article, Professor Goodman quotes the language of article 41, API (‘safeguard of an enemy hors de combat’)—which does not textually support the existence of an LRM rule.” I never claimed that it did. I argue that the definition of hors de combat under Article 41 effectuates an even more protective safeguard----complete immunity from attack including lethal force and lesser injury—for a group of individuals (i.e., defenseless combatants in the power of an adversary).
II. Points of real divergence
1. CBJJ 2.0 assert that my argument depends on the views of commentators, not states. For support, they refer to Captain Ian Henderson’s criticism which makes the same assertion. However, they neither mention nor engage the response I gave to Captain Henderson. Here is what I wrote:
My analysis relies for support (contra your point no. 2) on the ICRC Commentaries (which reflect the travaux préparatoires to article 35 and related articles); the leading treatise by Bothe, Partsh, and Solf; my own research on the travaux, and intergovernmental meetings prior to 1977. And, when I rely on states, it includes statements that reflect broad state support such as the Australian Ambassador’s conclusion that among governmental delegations, “There already seems a wide measure of agreement” supporting the rule.
Thus CBJJ 2.0 reassert the same claim without rebutting the contrary evidence presented. Three additional points about my article’s use of commentators deserve mention here. First, the article tracks the views of commentators, in part, to debunk revisionist statements about Pictet. For example, Michael Schmitt had asserted that Pictet’s lesser evil position was “rejected by states and scholars alike.” Second, as I explain in the article, the position of particular commentators directly influenced states—for example, the final report of a 1973 expert group was endorsed by states at an important meeting in Lucerne. Third, it would be a mistake to lump the ICRC reports of the early to mid-1970s with the views of “other commentators.” The ICRC had the responsibility of providing a Draft Protocol to governments and preparing reports advising governments on the meaning of the text. Indeed, it is common practice to interpret the 1977 Protocol by reference to these original ICRC documents.
CBJJ 2.0 do raise a fair and good question: if my interpretation of the lesser evil rule is correct, why did the framers not include it expressly in the text of the Protocol? Let me make three brief points. First, how much clearer would the framers have to be to suggest that “unnecessary killing” is a part of a “superfluous injury and unnecessary suffering” prohibition? The plain text of Article 35 is arguably sufficient. Second, treaty texts often include general prohibitions and do not specify sub-rules or sub-prohibitions. It would be a mistake, however, to conclude that the latter are not part of the prohibition. Third, the Commentaries concerning Article 35 and related articles suggest that the lesser evil rule is precisely what the framers had in mind. In addition, the Commentaries state that the final text of Article 35 “corresponds to the position of the ICRC and to the intent of the original rule” in which the ICRC had expressly spelled out the lesser evil rule with respect to capture instead of kill.
CBJJ 2.0 also claim that Article 35 must be read to apply to weapons, but they have difficulty explaining why the text does not also apply to methods of warfare such as the choice to use lethal force. They state that Article 35’s “intended focus is on limiting specific means of warfare—that is, weapons—and to a lesser degree, methods of warfare” (emphasis added). What work is the phrase “to a lesser degree” doing in this part of their analysis? Even if it were to a lesser degree, Article 35 would still—to a nontrivial degree—be about methods of warfare such as the decision to employ lethal force against enemy combatants.
2. CBJJ 2.0 maintain that my position involves (i) a proportionality analysis (ii) that is derived from human rights law. Both counts are simply incorrect. In the EJIL article, I explain at length two models of the lesser evil rule: one involving a strict military needs test (represented by the ICRC Guidance) and the other involving a proportionality test (represented by the Israeli High Court). The former does not involve a proportionality analysis, which I define as any balance between the military objectives (including reducing harm to attacking forces) versus the extent of suffering on the part of the target. And Pictet’s formulation, I explain, is consistent with this model. If CBJJ wish to advance this part of the debate, we need from them at least a definition of what they mean by proportionality, and an explanation—not just an assertion—why the model of a lesser evil rule that I discuss necessitates such an equation. Moreover, it should be noted that CBJJ’s contention relies, in part, on an anachronism. They claim that the lesser evil rule which originated in the early to mid-1970s involves “an extension of human rights proportionality protection.” But international human rights law, a rudimentary regime at the time, had not even begun to develop such a concept. In any case, this argument is irrelevant as a critique of my work: I strictly confine the research and analysis in the EJIL article and the Op-Ed to the law of armed conflict, and do not consider international human rights law.
3. CBJJ 2.0 state that I misread the Commentary to the 1977 Protocol, and they focus all their attention on my reference to the Commentary to Article 44. First, let’s imagine I concede the point on Article 44. What do CBJJ have to say about the Commentary directly addressing Article 35’s superfluous injury and unnecessary suffering prohibition, including the Commentary to other articles of the Protocol which refers back to Article 35? And why do CBJJ completely avoid any discussion of these more direct passages in the Commentary? I’ll let readers draw their own set of explanations.
Second, CBJJ’s gloss on Article 44 and their statement that my interpretation is “entirely inapt” lacks foundation. Other commentators share my natural reading of the Commentary (Melzer 2009; Römer 2010). And CBJJ’s explanation is anything but straightforward. The category of relevant individuals is clearly legitimate military targets—they are “combatants” who thus have the right to participate directly in hostilities. The Commentary is obviously predicated on the understanding that these individuals can be lawfully “neutralized” through lethal force (see also Watkin 2010: 684). Indeed, the Commentary’ discussion is specifically about nonstate armed groups, and I presume that CBJJ would completely agree that al Qaeda combatants performing these functions are lawful targets. And therein lies the remarkable support for the lesser evil rule: the Commentary states that even though these combatants are generally legitimate targets, if they are unarmed and carrying out functions that do not threaten to directly deliver kinetic force, they “should be taken under fire only if there is no other way of neutralizing them.” It bears emphasis that this analysis in the Commentary dovetails with:
- the Commentary’s explanation of Article 35 which calls for a minimal loss of life for targets in general;
- the Commentary stating that the kind or degree of force used to quell an hors de combat who resumes fighting should be limited “to the measure of danger” (and referring back to Article 35);
- the Commentary explaining that “it is only permissible to kill a person who is escaping if there is no other way;” and
- the Commentary stating that the prohibition on “deliberate and pointless extermination of the defending enemy” through a denial of quarter “complements the principle expressed in Article 35, which prohibits methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”
4. CBJJ 2.0 state that “Professor Goodman asserts … that this practice [restrictions on the use of force in Rules of Engagement] indicates the existence of a legal obligation.” In the EJIL article, I acknowledge explicitly that commentators explain that ROEs result from policy considerations. The ROEs nevertheless show that state practice is generally consistent with the legal rule. And, in the article, I question whether states have expressly claimed a legal prerogative to act otherwise. In this regard, consider Melzer’s challenge: “Although Parks contends that Section IX of the Interpretive Guidance is not supported by State practice and case law, he fails to provide any evidence of contrary practice or jurisprudence, which would imply the permissibility of manifestly excessive force.” And consider this flawed response to the ICRC by William Fenrick: “There is unambiguous state practice to demonstrate that armed forces have, over the centuries, directed attacks against legitimate human targets without regard to minimum use of force rules … and that states have regarded such acts as lawful.” If Fenrick were correct, it would be a significant point. Fenrick, however, follows this statement with no citation and an unusual admission: “The dogmatism of the above assertion is tempered by the fact that the author has not gathered the necessary empirical evidence to support it. It is, however, substantiated to a degree by wide and relevant reading over the years.” It is in that context that I made the point about the consistency of ROEs with the unnecessary killing rule. I stand by it.
5. Finally, CBJJ 2.0 raise significant questions about whether the rule could be successfully implemented in military operations. These are obviously vitally important considerations. For example, if the rule is the law of the Protocol, it legally binds—as a treaty obligation—the 170-plus state parties to the Protocol which includes 88% of the states of the world and all NATO members except for the United States and Turkey. The entirety of Part II of my EJIL article develops a set of conditions that might qualify the application of the rule. (CBJJ never engage this part of the article.) I explain that the rule might apply, for example, only to military commanders and senior officials planning an operation rather than individual soldiers in the heat of battle. Or a strong presumption favoring killing might apply which could be rebutted only by establishing that an individual purposefully engaged in “manifestly and absolutely unnecessary” violence. These are all sound second-order considerations for the application of the rule, and not reasons to reject the legal status of the rule. Moving forward, we can also learn from Israel’s and Colombia’s incorporation of a lesser evil rule as a binding constraint in their armed conflicts with terrorist groups. And, yes, we can learn from ROEs that already incorporate this rule as a matter of strategy—and from the White Paper’s “feasibility of capture” test which applies as a matter of law. Moreover, we can learn from the application of the hors de combat regime. As I detail in my reply to Henderson, military manuals around the world provide that protective safeguard in the case of defenseless soldiers in the power of the adverse party. In short, there is ample practice and potential conditions on the application of the unnecessary killing rule to suggest that CBJJ’s stated concerns are excessive, if not misplaced.
Lastly, CBJJ 2.0’s analysis exacerbates rather than addresses an internal inconsistency in their analysis which I identified in my first reply. That is, in the discussion of law and policy, CBJJ 2.0 tell us that “a ‘capture instead of kill’ constraint is often imposed on operations” (albeit not due to an international law obligation). And in the discussion of the administrability of the lesser evil rule, they argue its imposition on military operations would be completely unworkable.
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Once again, let me express my gratitude to Lawfare and to CBJJ for this important discussion. We have possibly exhausted our readers for now. I look forward to further intellectual engagements in the EJIL issue, which will contain a reply and rejoinder, and in the Online forum organized by EJIL: Debate.