Yale Journal of International Law<\/a><\/em>.\u00a0 Ultimately, she concludes that international law should incorporate a humanitarian necessity exception that would legalize tactics and strategies aimed at saving lives.<\/p>\nThe ostensible fundamental purpose of international humanitarian law is to minimize humanitarian suffering of combatants and civilians during the conduct of hostilities. \u00a0However, by neglecting to incorporate a humanitarian necessity defense into the relevant international agreements, IHL implicitly condemns some humanitarian acts that violate the letter of the rules while striving to meet their explicit purpose. \u00a0Blum explains that the moral rationale for that condemnation is either put in terms of deontology (blanket rules against certain acts in war that are inherently morally repugnant) or consequentialism (having the absolute rules results in more good than harm).<\/p>\n
Arguments for broad rules in war stand on shaky grounds.\u00a0 Blum argues that soldiers are inherently used as means for ends, which suggests the basic utilitarian moral framework of war. \u00a0As she puts it, “War is about committing evils and choosing between evils.” \u00a0Blanket prohibitions inevitably cause problems when those choices between evils emerge, particularly when a large but legal evil butts up against a lesser but illegal one. \u00a0In short, if IHL wants to save lives, it should not logically object to lesser, illegal evils.<\/p>\n
The consequentialist arguments for absolute rules are more subtle. \u00a0Some argue that it is quite difficult to determine in the fog of war what course of action will be the most humane.\u00a0 In the absence of certain knowledge, we should not allow combatants to gamble with human lives.\u00a0 However, as Blum notes, the fact of uncertainty should act “as a risk to be weighed rather than . . . an absolute bar [to humanitarian actions].” \u00a0Also, there are inevitably cases where the information is more certain, and in those cases it would seem appropriate to allow some discretion to the combatants (subject to\u00a0ex post<\/em> scrutiny in IHL courts).\u00a0 Blum answers\u00a0similar arguments that allowing a humanitarian exception could lead to a “slippery slope” of condoning war acts by pointing out that such necessity defenses would always be subject to oversight. \u00a0Someone who tried to use them would still have to prove that they took the more humane option; they would not be able to simply plead the humane exception and get away with war crimes.<\/p>\nOne final argument against Blum’s humanitarian exception is based on international institutions. \u00a0Given that the laws of war will have to be upheld by international organizations, it would seem ill-advised to introduce a fairly complicated standard-based law when very diverse judges and organizations will have to apply it. \u00a0One would think that crystalline rules would need less cultural translation or misunderstandings. \u00a0After all, everyone can understand “don’t kill civilians,” whereas calculations of lesser humanitarian evils might be subject to considerable disagreement by different judges. \u00a0Blum claims that those concerns, while legitimate, are overstated. \u00a0It may not be much more ambiguous to say “don’t kill civilians unless you’ll save more lives by doing so.”\u00a0 Furthermore, having laws which are more fine-tuned to moral subtleties may result in an increase in respect for IHL which tracks better with real-life moral dilemmas.<\/p>\n
Overall, Blum’s article provides a fresh take on a long-standing problem, and her proposals may very well eventually become an important part of international law.<\/p>\n
Image courtesy of the BBC<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"By John Thorlin, NSJ Staff Editor – Assassinating foreign leaders outside of an ongoing armed conflict is of questionable legality, even if doing so would prevent a broader war. \u00a0Humanitarian interventions such as the NATO bombings in Kosovo–acts deliberately aimed at saving lives–are prohibited by the laws of war, which do not differentiate between the motivations for acts of armed aggression across borders. \u00a0 Why do the laws of war–including international humanitarian law (IHL) and international criminal law–in these and many other real and hypothetical cases forbid actions that could result in a net saving of lives? \u00a0Gabriella Blum, an 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