In response to my earlier post on justifications for violating international law, some commenters point to the danger that "necessity" arguments can be used to justify virtually any illegal conduct. For example, one argues that:
Necessity is a poor defense for war crimes. Barring the truly gratuitous (like the Soviet rapes [of German civilians during WWII]), the violating power can almost always cobble a "necessity" argument.
The whole point of declaring conduct X a "war crime" is presumably to declare it off limits, even when one could get arguably good results thereby.
The argument is not without some force. Indeed, some Soviet officials even tried to justify the mass rape of German and other women by their troops by claiming that it was necessary to keep up the soldiers' morale. However, the fact that many necessity arguments for violations of international law are bogus excuses doesn't prove that all of them are. For example, there is pretty strong evidence that the illegal targeting of German and Japanese civilians by the Allied strategic bombing campaign in World War II played an essential role in the defeat of the Axis (see, e.g., Richard Overy's book, Why the Allies Won). Perhaps the risk of allowing states to get away with bogus justifications is so great that a categorical ban with no exceptions is the only solution. In my original post, I emphasized that:
I have deliberately abstracted away from institutional, slippery slope, and public choice considerations. Even otherwise justified violations of international law might lead to unjustified ones in the future and should perhaps be curtailed for that reason. The risk of slippery slope problems, public choice problems, and the institutionalization of atrocities, argues for tighter constraints on combatant behavior than might otherwise be justified.
Such concerns justify a high burden of proof for necessity arguments, especially in cases such as the strategic bombing campaign where the illegal conduct causes great harm. They may also justify other institutional safeguards to reduce the risk of bogus necessity-mongering. Nonetheless, I am skeptical of claims that these dangers justify a categorical rejection of conduct that violates international law. In some important cases - including World War II - rigorous enforcement of such a rule would lead to far greater atrocities than the it prevents. For example, this rule would mean that outside forces could never intervene to oust a repressive regime engaged in mass murder so long as its crimes were confined to its own territory (because nondefensive war is considered illegal under the UN Charter).
We should certainly guard against bogus justifications for violating international law. But we should also guard against the sort of cult fetishization of international law that unthinkingly elevates adherence to international legal rules above all other considerations.
Related Posts (on one page):
- Does the Prevalence of Bogus Justifications for Violating International Law Prove that Violations are Never Justified?
- Are Violations of International Law Ever Justified?