Military necessity as normative indifference.

Author:Hayashi, Nobuo
Position:IV. Joint Satisfaction Thesis A. Joint Satisfaction Is Always Possible 2. Neither Normative Military Necessity Nor Prescriptive Humanity Makes the Performance or Forbearance of All Belligerent Conduct-Kinds Mandatory through 3. Normative Military Necessity and Prescriptive Humanity Never Affirmatively Conflict With Each Other, p. 715-749
 
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  1. 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...

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