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Pragmatism and Principle in International Humanitarian Law

Published online by Cambridge University Press:  19 March 2012

Michael M. Lieberman
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Abstract

As we seek to identify new norms to bridge the gaps between extant law and the challenges that new conflict modes pose today, we confront a threshold question as to which methodological ground we should stand upon in doing so. Based on a background assumption of positivism as the source of substantive norms, the issue for some observers comes down to a clash between pragmatism and formalism. To formalism's proponents, the concept of pragmatism—which sees law as a functional instrument to be used in pursuit of pre-envisioned ends—has contributed to a dearth of moral obligation in international humanitarian law discourse. Such a view considers that the emphasis on empiricism found in pragmatism both legitimizes and shrouds the reality of effective power lurking behind the law. The alternative they prefer, championed most articulately by Professor Koskenniemi, is a “culture of formalism” that sees law as an object of universal obligation and as a form of critique that unmasks the pragmatic mode for what it is, namely, a rationalization of might. As this Article suggests, this understanding misapprehends the true nature of pragmatism, which is neither a smokescreen nor an apoloay. Rather, pragmatism's focus on real-world effects and consequences holds far greater promise for advancing the actual humanitarianism of IHL. Formalism, moreover; is subsumed within the constellation of factors that pragmatic analysis demands. These ideas are explored on a theoretical level, and are then illustrated by a look at the Israel separation barrier cases decided by the International Court of Justice and the Israeli High Court of Justice.

Type
Symposium on Complementing International Humanitarian Law: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations
Information
Israel Law Review , Volume 42 , Issue 1 , 2009 , pp. 150 - 167
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 Conference Prospectus, Complementing IHL. Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations (Minerva Center for Human Rights, The Hebrew University 2008).

2 See Dupuy, Pierre-Marie, Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi, 16 Eur. J. Int'l L. 131, 136 (2005)CrossRefGoogle Scholar (referring to the use of jus cogens by the ICJ and regional human rights bodies as the “effective application” of the concept).

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14 These sources are: treaties, custom, general principles of law “recognized by civilized nations” and, secondarily, judicial decisions and scholarly treatises. Statute of the International Court of Justice, art. 38(1)(c), June 26, 1945, 59 Stat. 1055, 3 Bevans. 1153. Article 38 establishes as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

An exhaustive inquiry into complementary IHL principles should not exclude the impact of non-legal norms or others incentives that can shape state behavior, such as moral concerns of decision-makers or negative media attention. As Ellickson observes, “lawmakers who are unappreciative of the social conditions that foster informal cooperation are likely to create a world in which there is both more law and less order.” Ellickson, Robert C., Order Without Law: How Neighbors Settle Disputes 286 (2005)Google Scholar.

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17 Compare HCJ 769/02 The Public Committee Against Torture in Israel v. The Gov't of Israel [Dec. 14, 2006] (unpublished) at para. 40 (“[A] civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed.”) with Cohen, Amichai & Shany, Yuval, A Development of Modest Proportions: The Application of the Principle of Proportionality in the Israeli Supreme Court Judgment on the Lawfulness of Targeted Killings, Research Paper No. 5-07 at 9 (Apr. 2007)Google Scholar, available at www.ssrn.com/abstractid=979071 (“the HCJ'S legal conclusion … [that] armies must always resort to less-injurious alternatives, in all cases involving civilians taking a direct part in hostilities … is, at best, unsubstantiated and probably also inaccurate.”).

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42 Id.

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48 We see this in the work of Critical Legal Studies(CLS)-inspired realism, rational choice theorists, empiricists, international law and relations scholars and others. Of these, the CLS-inspired Kennedy has grappled most with pragmatism as a methodological matter, while the rest continue to articulate the second order theories and functional inquiries that the pragmatic view of the law demands. See, e.g., Kennedy, supra note 3; Posner & Goldsmith, supra note 11; Guzman, supra note 9.

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73 As Yuval Shany points out, there “is no indication in the advisory opinion that the specific factual and legal assertions of the Israeli government, as presented during the numerous HCJ proceedings on the legality of the barrier in Israel, were taken into consideration.” Capacities and Inadequacies, supra note 27, at 234 n. 14.

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77 Mara'abe v. The Prime Minister of Israel, supra note 29, at para. 61. The difference between the HCJ and ICJ decisions reflects various institutional and attitudinal factors, as Professors Cohen and Shany have observed, stemming in large part from the tribunals' respective roles and capacities as domestic and international forums. These characteristics are not alternative explanations, but rather predictors of pragmatic outlooks.

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80 Id.

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83 Quoted in Menand, supra note 47, at 342.