Challenging Chapter VII: The Next Step in the Law of War?

By Brian J. Foley
Professor of Law
Florida Coastal School of Law

The thing that’s amazed me the most for the longest time in law is that the most horrific, destructive action a government can undertake is governed by so little legal process. A Presidentor Prime Minister wants to wage a war? There’s less required testing of evidence and rationale than when a person faces a misdemeanor conviction, or even when a restaurant wants a liquor license.

Generally, the level of process required to test a government decision roughly equates with the gravity of the decision. Decisions involving the deprivation of life and liberty get more process than those involving a deprivation of property. Compare a death penalty case with the procedure for a parking ticket.

fcsl-cover-03-13 Cpull1War’s an anomaly. I’m not sure why. Maybe it’s because war is too horrible to think about. Maybe because war has traditionally been left to the whim of absolute monarchs. Maybe because we’re used to the government having more access to information and to be in control of the flow of information; we’re used to deferring. Or maybe we think that wars, like natural disasters, are a common, tragic part of life that just happen now and then like hurricanes and tornados.

But there is law regarding war. Most people are at least vaguely familiar with the laws that govern how hostilities must be carried out, laws known collectively as the jus in bello (law in war). The Geneva Conventions, which address how soldiers must treat enemy soldiers, prisoners, and civilians, are the best known. Most people are familiar with various bans on certain types of weapons, such as poison gas.

We are far less familiar, however, with the laws governing when nations may legitimately go to war, laws known as the jus ad bellum (right to war), such as the venerable Just War Standard dating back to St. Augustine, the Kellogg-Briand Pact, which outlawed war in 1928, and the UN Charter, a treaty that requires Member Nations to turn over their decision-making power on whether to wage war to the Security Council, except if immediate self-defense is required. Even then, a nation must turn over the matter to the Security Council as soon as possible.

The Just War standard and UN Charter set out rules, but what’s missing is any way to enforce them. The last time the world has seen leaders of developed nations put on trial for starting wars (and committing crimes during the wars) were the Nuremberg and Tokyo Trials, which were ad hoc tribunals set up to prosecute Axis leaders after World War II. The crime of “aggression,” which was what Nazi leaders were charged with, was only recently codified in international law, after several years of work.

As for the jus ad bellum, it seems that the UN Charter has been reduced to something that international leaders, jurists, and public intellectuals sometimes refer to before and/or after wars, but only in a rigid, j’accuse fashion. Now and then, defenders of wars might deign to argue that their military action didn’t violate the Charter; usually, however, they seem not to mention these laws, perhaps fearing that doing so would give them legitimacy – leaders don’t want their ability to wage war limited by law. And, unfortunately, the Security Council rarely makes any pronouncement, one way or the other. For example, it never made a clear pronouncement regarding the legality of the U.S.-led invasion of Iraq.

Much of my scholarly work and public commentary has been to argue that the Security Council should test claims for war before the first shots are fired, to guide nations in what’s legal and what’s not. My idea is that the jus ad bellum can be used dynamically to help us prevent unnecessary wars and limit the harms of necessary ones. If leaders were forced to lay out their claims and evidence, other nations, and their publics, would get to see these claims tested. Good claims would lead to popular support. Bad claims would lead to the opposite – which might prevent a war.

Law as a Guide to Good Thinking

One of my views of law is that it’s not just a set of rules to tell us what we can or cannot do, what’s right or wrong, etc. Rather, at its best, lawcan serve as a guide for decision-making. Opposing arguments are fully ventilated, the accuracy of evidence is tested, and reasoning for the decision is set forth. It’s a transparent process, a requirement that reason will govern the decision-making, rather than an authority figure’s “Because I said so!” (That’s one of the things that attracted me to law in the first place. Maybe that’s the case with you, too?)

As lawyers, we can envision processes we’re familiar with as rough analogies. After a war that violated the UN Charter, a leader could be tried, in a manner akin to a criminal trial. Leading up to a war, a leader’s case for war could be tried in a process akin to a motion for preliminary injunction.

Even without formal process, we can envision what “common sense,” or rudimentary problem-solving, about whether to wage war would entail. First, we’d determine the goal for which using military force is proposed. Next, we’ d weigh the costs and benefits. We’d also continue vigorously to find or devise less-costly alternatives to war. If no alternatives existed, then we’d look for ways to eliminate or at least minimize the costs.

Another analogy: A shopping mall is proposed in a town or city. The planning and zoning boards test the developer’s case.“Impact studies” are often required. Again, big decisions require big process, for high scrutiny.

Why not legally require deliberation for such an important undertaking, an undertakingthat will result in irreparable harm? The sense running through my work on this issue is that this isn’t too much to ask!

One might counter that we don’t have the luxury to deliberate: This is war! True, if a nation is attacked, its leaders and citizens are unlikely to assemble a debating society. But that’s not the model anymore for U.S. wars. Even after the 9/11 attacks, the U.S. didn’t strike back until almost three weeks later, October 7, when it invaded Afghanistan. But the Bush Administration explicitly adopted an aggressive strategy that focused on preemptive war, a strategy of striking any enemy early, while that enemy is plotting and planning attacks. (President Obama appears to still follow this strategy, given his threats to Iran and his use of drone strikes.) The challenge with such a regime is that the evidence of such plotting and planning might not be clear. There might be different interpretations of another nation’s intentions. The ongoing U.S. confrontation with Iran is a good example. Is Iran_really_ building an atomic bomb? If so, will it actually use it against the United States or Israel? If not, then there are needless costs to going to war. But if the U.S. were to remain passive in the face of an actual threat, there would be needless costs as well. (“Costs,” of course, is a euphemism for deaths of civilians and soldiers; physical injuries; psychic injuries; people being made refugees; property destruction; environmental destruction; financial costs; etc.)

With a policy of early intervention, the U.S. has the ability, and, I would argue, the responsibility, to be deliberative about avoiding or limiting these costs.

The Process in Action

The process would be fairly straightforward, with at least four basic steps. First, determine whether the military force would be required to prevent a serious irreparable harm. For example, force can’t be used simply to take over a country for its resources. Force can’t be used simply to punish a nation or its leaders (as innocents will surely be killed). The sorts of serious irreparable harm I am thinking of would involve dangers to human life. Things such as a rogue nation’s acquiring a nuclear bomb with the intent to use it, or a nation’s harboring terrorists bent on attacking other countries, or ongoing or a threat of genocide, could be included. There would be a sort of Federal Rule of Civil Procedure 12(b)(6) approach: Assuming arguendo that the claims made by nation seeking to use military force are true, is the situation one of serious irreparable harm? If not, game over. If so, then there would have to be an actual testing of the evidence that such irreparable harm is occurring or likely to occur.

If there is evidence, then the next step would be a search for alternatives. I have argued that this search is required by the language in the UN Charter and Just War standard that force should only be used if “necessary.” Otherwise, the word “necessity” is meaningless. So some “forced creativity” would be required. A nation seeking to wage war would have to show that it had tried alternatives to military force and they failed, or that it is clear they would be likely to fail if tried. Ienvision the Security Council brainstorming or engaging in other ways to enhance creativity. Perhaps they could do this behind closed doors, if they’re afraid of not looking“dignified.” But that seems a small price to pay if it could avoid the serious costs of war! Moreover, brainstorming and similar activities are becoming more and more common in businesses. They work. In the future, we might all be used to seeing higher-ups brainstorming and engaging in other creativity exercises. This “step” would actually be ongoing. Efforts to come up with solutions, and tenacious diplomacy to broker a war-avoiding deal, shouldn’t stop, even after war has begun.

The next step would be to lay out clearly the likely harms,and to seek ways to limit them. Creativity would be required here, too. Military strategies can be shaped in various ways to avoid particular harms.For example, what would be the relative costs to all involved of troops on the ground vs. high altitude bombing? (Of course, high altitude bombing is safer for the attacking nation, but it’s less safe for the innocents on the ground.)

The next step would be balance the irreparable harm that military force is proposed to prevent against the likely harms of using the force. It’s afamiliar cost-benefit analysis.

Throughout the process, the burden of proof should be at least the legal standard“clear and convincing evidence.” Better yet, with preemptive wars and other wars of choice, the highest legal standard, “beyond a reasonable doubt,” the familiar standard used in criminal cases, should be applied. After all, anyone proposing to unleash the destruction and havoc of war should be forced to meet the highest standard to show that war is justified and that no reasonable alternatives exist.

This isn’t rocket science; indeed, it’s familiar to us lawyers. The beauty of this process is that it could be used by the UN Security Council or byCongress. It could also be carried out by any of the world’s almost 200 nations, especially those asked to join a coalition. A nation could invite the leaders of a nation proposing to use military force to come lay out their claims. If governments fail to provide such a forum, an NGO or civil society organization could step up and hold hearings and televise them or put them on the Internet for the world to see. If leaders of a nation proposing war don’t show up, outstanding lawyers could be tasked to argue the case for war. The incentive to do a vigorous job on all sides and avoid the sense that the inquiry is a “kangaroo court” would be high: the world would be watching, and legitimacy of the process would be scrutinized.

What next?

The benefits: a proposed war that is justified will garner wide support, and damages from it would be limited. A proposed war that isn’t justified won’t garner sufficient support and might end up being avoided altogether. That is, there’s more likelihood that the right decision will be made. One of our core beliefs as lawyers is that process enhances the accuracy of decision-making. Why not apply it to this most deadly decision? It comes down to this:Do we have the will to create and mandate such a process?

Then we can move on to other projects: Requiring withering cross-examination in Presidential debates, or hearings to get to the bottom of claims about global warming, etc. Let’s keep applying the critical thinking we lawyers are trained in to create a better world.