Volume 35, Issue 1

The Laws of War and the “Lesser Evil”

Written by Gabriella Blum

One of the fundamental principles of international humanitarian law (IHL) is that it recognizes no lesser-evil justification for breaking its rules. Those violating the laws of war will thus be viewed as war criminals even when their conduct was intended to—and in fact did—prevent much greater harm. This Article argues that this deep-rooted absolutist stance undermines the humanitarian drive of the laws of war, and offers, instead, a lesser-evil defense.

The argument begins with the obvious analogy to the necessity defense in domestic criminal law, emphasizing the adaptations that are necessary in order to transpose the domestic concept onto the international plane. It then proceeds to test possible first-order accounts—deontological, consequentialist, and institutional—for why IHL might nonetheless prefer a more absolutist stance than domestic law. It finds that none of these accounts offers a compelling explanation for the exclusion of any lesser-evil justification from IHL. The Article then proceeds to develop a blueprint for a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good under certain conditions. A central component of the justification, which is required given the special nature of IHL, is a condition that the greater humanitarian good would benefit the enemy, rather than the actor’s own people.

Three case studies are taken up to demonstrate the implications of IHL’s absolutism: the “Early Warning Procedure” employed by the Israeli Defense Force in the West Bank, the paradigmatic case of interrogational torture, and the atomic bombings of Hiroshima and Nagasaki. Under the paradigm of a humanitarian necessity justification suggested here, the Early Warning Procedure and perhaps even the atomic bombing of Hiroshima (but not Nagasaki) might be justified, but the paradigmatic case of interrogational torture cannot.

The Blank-Prose Crime of Aggression

Written by Michael J. Glennon

On February 13, 2009, the Special Working Group on the Crime of Aggression (SWGCA), a group set up under the treaty establishing the International Criminal Court (ICC), announced a historic breakthrough. After five years of deliberation, the panel proclaimed it had finally reached agreement on a draft definition of the crime of aggression.

The treaty that set up the court, called the Rome Statute, provides for prosecution of that crime, but the framers of the Statute were unable to agree upon a definition. Prosecution of that crime was suspended until the Statute could be amended to include a definition. The Assembly of States Parties will take up the Working Group’s proposed definition at its Review Conference in May 2010 in Kampala, Uganda. I suggest in this Article that the proposed definition would constitute a crime in blank prose—one that would run afoul of basic international human rights norms and domestic guarantees of due process in its disregard of the international principle of legality and related U.S. constitutional prohibitions against vague and retroactive criminal punishment. The argument in favor of criminalizing aggression is, in Reinhold Niebuhr’s felicitous phrase, “a logic which derives the possibility of an achievement from its necessity.”

Proponents appear to believe it is necessary that the crime of aggression be defined; therefore, they believe, the crime of aggression is perforce capable of being defined. But necessity, moral or otherwise, does not imply juridical achievability. Repeated efforts to define aggression foundered throughout the twentieth century as continuing political and cultural differences among states have prevented the formation of a consensus. Strong and weak states have long been sharply divided over when the use of force is appropriate and whether their own military and political leaders ought to be prosecuted for such an offense. The high level of specificity needed to impose individual criminal liability – as opposed merely to guide state conduct – has therefore proven unattainable. The ambiguous definition now under consideration papers over those differences. Prosecution under it would turn upon factors that the law does not delineate, rendering criminal liability unpredictable and undermining the law’s integrity. The proposed definition cannot be reconciled with the Rome Statute’s own requirement that the court apply the law consistently with internationally recognized human rights. The definition’s ambiguity broadens its potential reach to the point that, had it been in effect for the last several decades, every U.S. President since John F. Kennedy, hundreds of U.S. legislators and military leaders, as well as innumerable military and political leaders from other countries could have been subject to prosecution.

Path Dependence in Discrimination Law: Employment Cases in the United States and the European Union

Written by Katerina Linos

Race analogies are a staple of U.S. antidiscrimination advocacy. However, many worry that race precedents have made U.S. equality law overly formalistic and have blocked sex, disability, age, and sexual orientation claims that do not fit neatly into the race-blindness paradigm.

Are race precedents severe constraints? Or are they malleable tools? To date, examining the U.S. historical record has not led to a clear answer or allowed for the development of a practicable alternative to the race-blindness model. New comparative evidence sheds light on these questions. The European Court of Justice developed its sex discrimination case law over the course of four decades and only recently decided its first race, age, disability, and sexual orientation claims between 2006 and 2009.

This Article argues that the sequence in which courts adjudicate claims is an important determinant of the doctrines they develop, and shapes the success and failure of claims subsequent groups bring. The comparison between the United States and the European Union reveals that departing from race-blindness is a double-edged sword. EU equality law offers greater protections to individuals who make claims that courts consider group-typical (e.g., women seeking flexible schedules to take care of children). In contrast, U.S. law benefits atypical workers (e.g., older workers seeking to work past conventional retirement ages). The concept of path dependence helps explain these developments and helps identify the moments when politics, culture, and ideology have more significant or more limited influence on court decisions.

Note: Enforced Disappearance as a Crime Under International Law