Military necessity as normative indifference.

Author:Hayashi, Nobuo
Position:IV. Joint Satisfaction Thesis B. Positive IHL Rules Unqualifiedly Obligating the Pursuit of Joint Satisfaction Conclusively Exclude De Novo Military Necessity and Other De Novo Indifference Pleas through VII. Conclusion, with footnotes, p. 749-782
  1. Positive IHL Rules Unqualifiedly Obligating the Pursuit of Joint Satisfaction Conclusively Exclude De Novo Military Necessity and Other De Novo Indifference Pleas

    Both the inevitable conflict thesis and the joint satisfaction thesis hold that IHL does indeed "account for" normative military necessity once it has validly posited an unqualified rule. Both of these theses also agree that one consequence of this is that de novo military necessity pleas are inadmissible vis-a-vis such a rule.

    What distinguishes the two theses here is their take of what "accounting for" really entails. The inevitable conflict thesis proceeds on the basis of two problematic claims. The first is argumendum a contrario. (323) The fact that some specific IHL rules contain exceptional clauses means, a contrario, that those IHL rules without such clauses do not admit exceptions. The soundness of this inferred intention hinges, in turn, on the notion that the framers of a positive IHL rule containing no exceptional clause (e.g., on account of military necessity) considered adding such a clause to it (i.e., they considered military necessity) and then decided not to do so. This leads the inevitable conflict thesis to its other contentious claim. The inferred exclusion holds if, but only if, it is true that the interplay between normative military necessity and prescriptive humanity permeates the process of norm-creation for all positive IHL rules. (324)

    The joint satisfaction thesis refutes both claims. First, as a threshold matter, it will be shown that not all positive IHL rules--let alone not all those creating unqualified obligations--in fact embody the interplay between normative military necessity and prescriptive humanity in the process of their norm-creation. Should those in support of the inevitable conflict thesis concede this particular point, they would expose themselves to the uncomfortable prospect that not all positive IHL rules "account for" military necessity or humanity. Those rules that do not do so would then arguably be susceptible to de novo military necessity and/or de novo humanity pleas.

    The joint satisfaction thesis readily accepts that the normative military necessity-prescriptive humanity interplay is not omnipresent in IHL norm-creation. And yet the thesis remains unaffected by the prospect just noted. It has already been established that, where both sets of considerations are at stake, a positive IHL rule creating an unqualified obligation with respect to a given conduct-kind makes the pursuit of firm or modest joint satisfaction obligatory in all circumstances, (325) More generally, an unqualified IHL rule thereby extinguishes all contradictory liberties robustly permitted by indifference considerations not to act as unqualifiedly obligated by it. Since, as noted earlier, normative military necessity is a species of indifference considerations, (326) an unqualified rule of positive IHL has the logical effect of precluding de novo military necessity pleas in support of deviant conduct-instances, even if it turns out that the process of norm-creation does not embody any interplay specifically involving normative military necessity. Validly positing an unqualified IHL rule means giving such a logical effect to that rule; this is what it really means to say that unqualified IHL rules "account for" military necessity. (327) It is therefore unnecessary to show that the norm-creative process of every positive IHL rule creating unqualified obligations embodies some interplay involving normative military necessity.

    1. Not All Positive IHL Rules Embody the Normative Military Necessity-Prescriptive Humanity Interplay in the Process of Their Norm-Creation

      The inevitable conflict thesis claims that all positive IHL rules embody the interplay between prescriptive humanity and normative military necessity. Some, including those creating unqualified obligations, in fact, do not. The process of their norm-creation may involve normative military necessity, on the one hand, but not prescriptive humanity, on the other; (328) or prescriptive humanity, on the one hand, but not normative military necessity, on the other. (329)

      a. Normative Military Necessity but Not Prescriptive Humanity

      A number of positive IHL rules clearly embody the interplay involving normative military necessity, but not prescriptive humanity, in the process of their norm-creation. Where this occurs, the former is typically juxtaposed vis-a-vis considerations of fairness or chivalry, pecuniary gain, and sovereignty.

      Consider, for instance, those rules prohibiting "improper" use of enemy uniforms (330) and, in particular, their use "while engaging in attacks or in order to shield, favour, protect or impede military operations. (331) Our discussion here does not concern the use of such items where there is no deceptive intention (332) or no intention to engage in hostile acts. (333) Instead, the conduct-kind of interest is using enemy uniforms with intention to deceive vis-a-vis a purpose-kind of obtaining tactical advantage over the enemy. It should also be noted that we are concerned here with enemy uniforms. (334)

      The expression "improper" has given rise to differences of opinion. (335) Be that as it may, there are two distinct stages in which the use of enemy uniforms is unqualifiedly banned. First, during combat, the law clearly and unqualifiedly prohibits the use of enemy uniforms. (336) Performing this conduct-kind would generally be deemed both unfair and confusing for everyone--including, self-defeatingly, those fighting for the very party resorting to such a tactic. "Prescriptive fairness" would demand and normative military necessity would robustly permit the forbearance of this conduct-kind. Consequently, a prospect for their firm joint satisfaction arises. The positive IHL rule on the matter makes the pursuit of this joint satisfaction unqualifiedly obligatory. In isolated, close-quarter combat where there is no real danger of confusion amongst one's own ranks, the conduct-kind might be seen as unfairly advantageous for those performing it. Here, "prescriptive fairness" demanding forbearance and normative military necessity robustly permitting performance are in a relationship of possible modest joint satisfaction. IHL here makes the pursuit of such joint satisfaction likewise unqualifiedly obligatory.

      Second, wearing enemy uniforms in enemy-held territories is also unqualifiedly prohibited. (337) The use of enemy uniforms might be deemed consistent with material military necessity for the party resorting thereto, (338) but it would be considered lacking in "descriptive fairness" with respect to the party to which the uniforms belong. Here, too, the fact that the law unqualifiedly prohibits this conduct-kind indicates that "prescriptive fairness" demanding its forbearance has trumped normative military necessity robustly permitting its performance.

      Nowhere in this process does prescriptive humanity appear. If adherents of the inevitable conflict thesis were to agree, then they would be compelled to concede that these rules do not, in fact, account for prescriptive humanity. It would follow that there might be situations--such as, for example, hostage rescue operations (339)--where de novo humanity pleas in support of using enemy uniform are admissible.

      There are other instances of IHL norm-creation that arguably embody the interplay between normative military necessity and considerations of fairness, chivalry or honor, but not prescriptive humanity. They include, for example, the interplay underlying the rules prohibiting direct participation in hostilities by paroled or repatriated POWs and by those sick, wounded, or shipwrecked who have been returned; (340) the interplay leading to the absence of rules prohibiting espionage per se, (341) and the interplay underlying the rules authorizing the detention and search of parlementaires. (342)

      Some positive IHL rules embody the interplay between normative military necessity on the one hand, and considerations of pecuniary gain and sovereignty--but not prescriptive humanity--on the other. Although strictly a matter of historical interest, those rules obligating sparing POWs' lives and authorizing their parole had little to do with prescriptive humanity. In pre-Grotian times, sparing POWs had much more to do with their captors' decidedly selfish, and un-humanitarian, pecuniary interests. It is only later in time that such practice found resonance with humanity. (343) Arguably, numerous rules concerning belligerent occupation do not involve prescriptive humanity per se. (344) The same may be said mutatis mutandis of those rules concerning neutrality. (345)

      b. Prescriptive Humanity but Not Normative Military Necessity

      Conversely, the process of norm-creation with respect to certain positive IHL rules clearly involves some interplay between prescriptive humanity on the one hand, and considerations other than normative military necessity on the other. The latter considerations often include chivalry and honor, and, significantly, countervailing exhortations or demands of prescriptive humanity.

      The following rules of positive IHL arguably do not contain normative military necessity in the process of their norm-creation: rules prohibiting compelling officer POWs to perform labor; (346) rules prohibiting medical interference with POWs "not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest;" (347) rules obligating the Detaining Power to repatriate POWs; (348) and rules prohibiting the belligerent from evacuating children "to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require." (349)

      Should the foregoing characterizations be true, then adherents of the inevitable conflict thesis would have to concede...

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