Interview: Andrew Clapham on his new book War

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

Andrew Clapham is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva, which he joined in 1997. He has been a member of the UN Commission on Human Rights in South Sudan since October 2017. He is an Honorary Member of the International Commission of Jurists. In 2003 he was an Adviser on International Humanitarian Law to Sergio Vieira de Mello, Special Representative of the UN Secretary-General in Iraq. 

I recently had the great pleasure to chat to Professor Andrew Clapham about his new book War (OUP 2021). This book is a major scholarly accomplishment, and a must-read for everyone interested in armed conflict and international law. It is a kind of modern encyclopedia on law and war, bringing new research, sources and perspectives to the table, analyzing case law and drawing on political speeches, literature, memoirs and film. At the same time, the disparate strands of analysis are skillfully brought together to provide an overarching evaluation of the legal consequences of a state of war in modern times. I feel very honoured to have had the opportunity to talk to Professor Clapham about his arguments, his findings and his views on the topic of war. The conversation brings rich insights into the thought-processes that have gone into and shaped this piece of work and I’m really grateful for the generosity and openness with which he answered my questions. Should you wish to buy a copy of the book on the OUP website, you can get a 30% discount if you use promotion code: ALAUTHC4

Katharine: The first question that I want to ask you is the question that interests me the most. In the current climate international lawyers have almost abandoned the word ‘war’, yet you chose now to write a book on it. Why was that? I guess at the back of my head, when I’m asking you this question I’m thinking ‘why was it war and not armed conflict’ that you found so fascinating?

Andrew: Well I did get some pushback when I first proposed the title. The anonymous reviewers and the publisher had to be convinced. They said lawyers don’t use that expression anymore. They talk about armed conflict. But I insisted for a number of reasons.

First, I had started to notice that in arguments it is much easier to justify your actions, for example if you are detaining somebody or destroying something, with the line that ‘this is war’ or we at ‘at war’. It sort of flips the debate indicating that ‘of course’ you have the right to do that. And I started noticing that people were referring not only to the ‘war on terror’, but also to ‘law-of-war detainees’ and the ‘war-sustaining economy’, as if the fact of a war justifies your action. And you can’t really do that manoeuvre with the humanitarian law of armed conflict. You can’t really call someone a humanitarian law target. Humanitarian law is supposed to protect people and not entitle you to do stuff, but if you talk about the law of war or add the word war in front of something it sounds as though you are justified. If you refer to war booty, it sounds as if it’s something you’re obviously entitled to. And I noticed this and it piqued my interest.

Secondly, there were also a number of ‘factual circumstances’, as you put it, that happened to me that probably shaped the germination of this book just as much as these linguistic musings. So if I cast my mind back to when I was starting university there was a situation that quickly became known as the ‘Falklands War’ and I noticed that some of my contemporaries – young men around my age – were saying ‘we have to join up to fight in the war’. And I think if you had described that conflict as something else i.e. a self-defence action or a peace and security operation, you wouldn’t have got this sense that we have to go to the recruiting office. I mean people literally said to me ‘do you know where the recruiting office is? I want to go and fight in the war’. So it has this pull when you describe something as a war, which doesn’t operate when you use other words.

Another incident which marked me, though it was just one 15 second moment, was this: I was watching TV and a minister of the UK government was being interviewed about the 1999 bombing of the Belgrade TV tower, the famous incident that everyone studies as the Bankovic decision, and the minister was confronted with the journalist saying something along the lines of: ‘but there are a lot of civilians who have been killed’, and the minister looked back at the journalist and into the camera and sort of shrugged, and said: ‘but this is war’. In other words, you’re wasting your breath here. Because we’re fighting a war, this is what obviously happens. And I remember the journalist not really having a comeback to that and the conversation moved on.

And I suppose there was one other last incident which I will mention here, although I hesitate, which I think marked me and encouraged me to go down this inquiry into what is the effect of calling a conflict a war. I was giving a talk in Geneva in 2003 at the Graduate Institute on the topic of the International Criminal Court (ICC). The talk finished and the audience drifted away, but two diplomats came to see me afterwards and wanted to know if I could give them and their government advice on how Iraq could ratify the ICC Statute. And this was in 2003, a few days before the conflict was about to start and it was absolutely clear at that point that the United Kingdom was about to start bombing Iraq. And something at the back of my mind reminded me that there was some UK law which said that you were not allowed to trade with the enemy, and that included giving advice, whether or not the advice was paid for – so interaction with the enemy in time of war would be a criminal offence for any British national if Britain were to be at war.

And so I wondered if this might also be linked to treason, which was at the front of my mind as I had been teaching fairly recently the law of treason. I don’t know whether you remember this, but there was a whole tabloid drama about a lover of Lady Diana possibly being prosecuted for treason, because ‘violating’ the wife of the Queen’s eldest son and heir  is an act of treason under the English Treason Act of 1351, and at the time of the affair treason carried the death penalty in the UK. And actually there is a footnote to this in the book – you can find it in the treason section (at p. 223). And I had been teaching this in Geneva a few years before, and of course it’s a great topic because you’ve certainly got the students’ attention when you explain that the lover of Lady Di might be getting the death penalty!

But in teaching the law around this drama, I had remembered that the definitions of treason and trading with the enemy were still relevant, and as a British national it suddenly occurred to me that I might risk prosecution – at this point the death penalty had just been abolished for all crimes, including those in times of war, but it was sort of fresh in my mind [Protocol 13 of the ECHR)  ensured that the death penalty was abolished in respect of acts committed in time of war or imminent threat of war and only came into force for the UK the following year in 2004]. And even if the death penalty was now off the table, it seemed important to know if I would be breaking the law.

So I managed to get an opinion from the Foreign Office as to whether or not the UK was at war or about to be at war with Iraq. The response came back to me (actually they didn’t know it was me asking – I’d managed to get it asked anonymously) that the UK was not at War with Iraq, and would only be at War with Iraq in the formal sense when the Queen (Government) declared this publicly in Parliament, and so there was no War, and trading with the enemy and advice to the enemy was not a criminal offence (although it was not encouraged …).

So that piqued my curiosity and I started to look for other examples of where it makes a difference whether it’s an armed conflict or War in the formal sense and I end up providing quite a few examples in the book. There’s quite an intriguing one about an Iraqi woman who was trying to sue in the British courts, and the solicitor she was suing said that you can’t sue me because you’re an enemy alien. He claimed that under the Common Law she could not use the British courts because the UK was at War with Iraq. The judge had to determine whether the 2003 armed conflict in Iraq was a War or not, and he determined that it was not a War because War had not been declared.

Katharine: In the book, you’re doing different things at once. You’re looking at the use of the word war in the legal discourse in different settings – and you’ve already mentioned a few – so for example, in national and international law, and then you’re paying attention to discourse in a more general sense. You talk about words having meaning beyond their legal technical sense, and I think that was very clear in the answer that you just gave, where you provide a few different settings where the word ‘war’ might have power i.e. political discourse, legal conversation, the media. And so in your book, you use the word war with a small w and you contrast it to the word war with a big W in order to tease out the different settings in which this word may be used, so contrasting the legal technical term from a less formal, non-legal term. You talk about the idea of war in a small w sense retaining power as an organizing idea, or even organizing ideal. I wondered to what sense you still think that’s true?

Andrew: Yes, that’s a great point and I think we can take it a bit further. At the beginning of the book, there are a few references to speeches by people like Macron, Hollande, Boris Johnson and Obama and I’ve used these examples in class, and we’ve had the discussion about what are they doing when they use the word ‘war’? They’re doing a few things. First of all, it’s a very useful way to get people to rally around you. So if you say we’re at war with COVID, you sort of bring everybody behind you. If you say we’re at war with Daesh/ISIS, and their attack on Paris is an act of war, it sort of unites the nation, so it’s a very unifying idea at that level.

Yet it’s also a very divisive idea because it means that the people you’re fighting against all become the enemy. Which is a helpful in a way, if you want to justify killing people on the other side, because, well obviously, they are the enemy. This enemy might not all be people who pose a particular danger to you, which is the test that you would use in ordinary life. When you’re walking down the street you can obviously only use force against someone who is immediately attacking you, but if you shift the setting to war, then all the people on the other side become the enemy and taking out the enemy becomes obviously justified. People become enemy combatants, and enemy aliens. It becomes much easier to justify the measures you are taking.

And, perhaps I can just circle back to your first question and add a further ‘factual circumstance’ that may have been at work here. I may have been particularly sensitive to this due to a moment when I was going though my mother’s papers and I came across dozens of letters written by her father to the British authorities who had interned him on the Isle of Man as an enemy alien [there is a literary allusion to this situation at p. 410]. Even after release from internment, being an enemy alien made it impossible to get work, a status, and as the book explains, that continued long after the fighting stops due to the idea that the State of War continues.

The third thing that happens when it is suggested that a country is at war is that the people within society who don’t agree with the idea of that war, become traitors and it becomes very difficult for them to question the wisdom of being at war. Now if you say we are going to engage in a peace and security operation authorized by the UN, if someone is against that they can make their argument and not much will happen to them. If you’re against being at war with an enemy, you are immediately a traitor, and you could be committing treason and, whether or not these technical rules apply, it becomes very difficult to speak out. So we can see that the use of the word ‘war’ has a unifying effect and a sort of cleverly divisive effect at the same time, in that you are ‘rallying the troops’ and pitching everyone else as your enemy, or the enemy within.

And this is something that you can pick up even today when people are talking about the significance of the US’s contemporary wars. War is not just a synonym for engaging in a security operation against terrorists who are threatening you, it’s got all this baggage and emotion  that come with it. Some of this is quite ‘technical’ and that’s why I had to use a capital ‘W’, because, for example, some of the crimes of treason are only applicable in a declared War against another State. But in the political discourse those nuances get lost and people think very differently about being at war. I’ve been staggered actually in the last months how much the press is obsessed with this question of whether the  ‘forever war’ is over  in Afghanistan. The New York Times had a front page piece enquiring into whether the US is still at war or not.

So you start seeing that the idea of war has got a really powerful hold on us for multiple reasons, most of which are probably beyond my capacity to understand. But I’m trying to indicate to lawyers that we should be thinking about this when we use the word.

But I did want the book to address the particular situations where you actually need a formal War for the law to kick in, not because I wanted to be particularly formalistic about it, but because of one of the bigger themes of the book –  which I am only beginning to properly realize now –  is that the old idea of formal War gave States certain rights and obligations. And when formal War was phased out (or as I prefer to put it ‘when we abolished War’) then we merely had armed conflicts, but we seem to have carried a lot of those old belligerent Wartime rights over. In my view they’ve sort of been cut and pasted into the new manuals in a rather lazy way, and I think the bigger conclusion of the book is that we shouldn’t have done that. The fact that states in the past were allowed to keep war booty (because war was an institution and there was no one to stop you if you won) does not mean that the rule (reproduced as Rule 49 in the ICRC Customary IHL study) should apply today. It shouldn’t be that an aggressor state can march into someone else’s state and take this state property and go home and international law says: that’s legal you can  keep it. So there are a few belligerent rights like war booty that need radical rethinking as I explain in detail. Yet I keep finding such belligerent rights cut and pasted into the new manuals. Perhaps I’ll get this off my chest now, the new Oslo manual says if you capture a state operated unmanned maritime system, title passes to you under the concept of ‘booty of war’. It also states, with regard to outer space, that a state can capture enemy outer space systems (that would include satellites belonging to civilians) and keep them under prize law. These suggestions conjure up images from James Bond films, but Bond appears in another chapter and we should not get too distracted by him just now.

Katharine: And so then the pivotal moment that you would say that this becomes inappropriate is the outlawing of war in the UN Charter?

Andrew: That’s the easiest way to fix the moment. You could also go back to the Kellogg-Briand Pact (1928) where the states parties renounced war as an instrument of national policy and agreed that disputes had to be settled by peaceful means. If war was already renounced at that time by the key states, it seems odd that that states would carry over the 19th century rules for capturing enemy property at sea into the 21st century. And people were indeed questioning the idea of belligerent rights in the 1930s. There is a section in my Chapter 3 which reproduces an imagined League of Nations discussion when Edith, the hero of the book Dark Palace, and maybe of my book too, says if a state has violated the League’s Covenant, how could it still have belligerent rights? It didn’t make sense to her that a state could still declare war and enjoy those rights. But the men in the meeting remain confused.

Katharine: I want to go back now to what you were saying before about discourse and the small ‘w’ war and the idea that it resonates in society. In political discourse, you were talking about it being a divisive and unifying strategy. In my mind, this is quite a top-down analysis. Do you see war to also have a mental resonance at individual level or with armed non-State actors, armed groups. Does the word ‘war’ also have a resonance for them?

Andrew: That’s a great question and you’re quite right that up to this point I am looking at it top down. But the end of the book talks about the memoir of a Japanese POW who was also prosecuted as a war criminal. I luckily had a Japanese student, Hibiki Urano, who translated the key passage of this memoir for me, and it’s quoted at p.512. Kat? says:

“War makes people mad. In a desperate life or death situation, any system of values breaks down. In war, killing is considered the highest virtue. By killing people and seeing fellow soldiers killed by the enemy at war, people become deranged in the state of mind that they are forever in a situation where they either kill or are killed”.  

And I think the training that some individuals undergo, and maybe even within non-state actors, involves reminding them that in a war situation it’s either kill or be killed. So that passage is not really my imagining how one might think. That’s someone who lived through the Second World War in his memoirs saying that’s what war does to us as ordinary soldiers. So when a president is using the war discourse to unify the people around them, at another level the discourse flips people from someone who might be encouraged to think about the concepts of  proportionate and necessary force (to use the terms from human rights law) to someone who shoots first and asks questions afterwards i.e.  kill or be killed.

There’s a very well known book by Dave Grossman called On Killing, which goes through how many people actually got involved in killing in wars and how people generally prefer not to shoot other people. So it’s a big moment when you manage to flip that switch, and I think that’s an interesting thing for us to think about when considering what it means to talk about war. There’s a piece in my book which talks about a UN peace-keeping commander saying there was too much confusion about what it meant to move from  peace-keeping to war fighting.  He calls it ‘crossing the Mogadishu line’ and claimed that crossing that line was to the detriment of the peacekeepers and the people of Somalia. So talking about war or war fighting can be a signifier: moving from engaging in the use of force for a certain limited end i.e. to deliver food in Somalia or protect civilians, to something where your limited mission is seemingly put aside and you put yourself in a war frame of mind.

Katharine: Yes, and it might also have an effect on the bystander mentality too, in terms of what as a society you’re prepared as a bystander to accept, in terms of the deprivation of rights.

Andrew: Absolutely, I think if the polity that sent you to fight considers you to be engaged in a war then the amount of casualties on both sides that they’re prepared to accept is very different than when you’ve been sent on a limited mission to deliver humanitarian assistance through a corridor. And how such an engagement is described will affect how many lives can be taken on the other side before there is outrage.

Katharine: I want to now ask you a question about your conclusions. So you have already shared some of what you were seeking to study in the book i.e. to evaluate what war means in a legal sense now. And you show in your book that now today, all action in war has to be justified by a specific rule. And on its own the quest for victory in war can no longer justify anything. And in your conclusions, you build up to this conclusion – which you say might be quite surprising for someone reading a book on war – which is that in fact no rights or obligations should flow from being in a state of war. So of course this is a fascinating conclusion, but I just want to pin you down on one aspect of it, and that is the ‘should’ in the sentence. I wondered, do you consider your conclusions on this as being lex lata or lex ferenda?

Andrew: Yes, so you’ve absolutely put your finger on the part which gave me the most trouble. So when I started the project, I thought I would get to the end and say: when you have a State of War these are the international rights and obligations for states, and they don’t attach to any old armed conflict. And then I decided that actually it was not obvious that any rights for states really flowed anymore from being in a State of War, as a matter of international law. However, there is an ambiguity here, because I also felt that one can find evidence that some States and some scholars would hold that that prize law only operates in time of War, or that instigating a blockade creates a State of War, or that the strict obligations of neutrality with a capital N – apply only in time of War, when you have declared your neutrality to that War. So those things seemed to flow from a State of War, at least for those states. So if I suggested that nothing extra flows from being in a State of War some could conclude that I considered that the old wartime belligerent rights for a blockading state or a state capturing prize should continue for all armed conflicts. But it would be a very retrograde step to extend these belligerent rights rather than abolish them. And in any event I didn’t find evidence that in general states think that those rules apply to each and every armed conflict. So I’ve got this situation where I think, if these rule do still exist for some states and commentators, their approach is that they apply in something similar to a State of War, but I didn’t want to endorse that approach, it’s best perhaps to admit these belligerent rights are “slipping away”, which is an expression that Steven Haines gave me, and it’s quite nice because of its nautical image. It expresses the fact that these old belligerent rights that used to apply only in a State of War should no longer apply, whatever the conflict.

Katharine: And why it is then on those three areas – prize, blockade and neutrality – that the doubt exists?

Andrew: Yes indeed, those areas are the trickiest because they’re not clearly regulated in treaties. There are no treaties that cover the purported rules that state you can keep the property of a ship that’s breaching blockade, or acquire the title to an enemy merchant ship or the enemy goods on it. These rules aren’t in treaties. I mean there are several draft treaties, but none of them are in force and so one has to show that states really do believe that this is a rule. If you asked all the states in the world if they thought powerful navies ought to be allowed to go around seizing property, I am guessing most might say no.  You could probably find some states that thought that the belligerent rights should stay in place, but most states on reflection would, I imagine, see themselves and their citizens as the potential losers when it comes to seizing enemy merchant ships and civilian aircraft together with the goods on board. What does it take for a customary rule (agreed to by a small number of maritime nations) to fade away? Rather than answer that question, I would say that the UN Charter suggests that the traditional belligerent rights can no longer be relied on.  

Katharine: Connected to your conclusion which is that all action needs to be justified under a specific rule, you address the principle of military necessity under international humanitarian law and you argue, I think convincingly, that it can’t be relied upon as a self-standing principle that is permissive on its own and that it’s been implicitly or explicitly built into the laws of war. This made me curious to hear what you think about this notion of principles: what do we mean by them? And of course we know that there are a number of principles that are said to underpin the laws of war – for example, humanity, distinction, proportionality, honour – at least that’s what some would say they are, so I wondered whether your thinking on military necessity has influenced your thinking about other principles – for example the ones I mentioned – and if so, whether you think we should stop referring to them as principles, as some authors have argued. Should we start referring to them as something else, for example, foundations or rules?

Andrew: Yes, that’s a great point. I think it’s useful to refer to such principles as a way of communicating complex ideas to a range of people. The principle of proportionality or distinction is a way of communicating some of the fundamentals of IHL and I think that’s fine. And we could call some of these ideas foundations because the idea of honour or humanity is difficult to communicate as a principle, but they’re important ideas to communicate, so that’s all great. The problem with military necessity, from my perspective, is that it gets twisted inside out. I think it exists as a restraining principle and means that if your actions are not necessary then they are not permissible. The problem comes when that restraint gets inverted into a permission. So military necessity is said by some to grant you an international right to do something that might otherwise be prohibited. To the extent that military necessity operates as a permission or an excuse not to comply with a particular rule then I think it is confined to very specific circumstances that have been written down and agreed to in treaty form. In those circumstances, military necessity is indeed part of the rule. It is not just a principle or a foundational idea.

Katharine: Is it necessary for you to bring in the ad bellum framework to reach that conclusion? Could you not make the same argument – that military necessity is a restraint – without bringing in the ad bellum argument?

Andrew: The problem is where does the necessity rule come from in IHL? It’s referred to as a foundational principle but it’s not written down clearly enough to really help you; and it’s very controversial and a lot people have said that there is no necessity rule in IHL – particularly when it came to the kill or capture discussion – so I’m not trying to argue there is a clear restraining necessity rule from within IHL, but from within the ad bellum rules. So when a mandate is given by the Security Council, it gives a mandate to do what is necessary to maintain or restore international peace and security. It doesn’t give a mandate to use as much force as is necessary to win a war. It’s never done that. The Charter allows for such action as is necessary to maintain or restore international peace and security. So there is a necessity rule built in there. In self-defence, it’s built in at the beginning. You can only use as much force as is necessary to defend yourself. Now I don’t think that’s a one-off thing, that once the war has started, and you’re defending yourself, you forget the necessity rule and you go all out to win the war. I think that the necessity rule continues. So each wave of counter attack or defence has to be necessary to defend yourself. It can’t be that you can use as much force in self-defence that you think will be enough to finish them off forever, and they’ll never come back for 100 years. And because I’m acting in self-defence I can use as much force as I want. But that’s controversial. Some people seem to feel that once the conflict has started, and you have shown the necessity of self-defence, you can use as much force as you like within the rules of international humanitarian law, and that means that you can do what you think you need to do to win the war.

Katharine: So when you refer to the necessity rule here, are you seeing that as part of the military necessity principle? Or do you see them as two separate things?

Andrew: I try to keep them separate; I think military necessity ought to be confined to a specific clause in treaties when there is a specific exception to the humanitarian rule. So there is a humanitarian rule in the Geneva Conventions that says delegates from Protecting powers have to be able to visit prisoners of war – but visits can be prohibited in cases of military necessity. In the book, I list all the provisions in the Geneva Conventions where you find military necessity as an explicit derogation from the humanitarian rules. And outside of those rules I don’t think you can use military necessity as a general get-around clause for going around another rule. So that is my view on military necessity, and I think the concept should be confined to that box. However, when it comes to necessity as a restraining factor I suppose I’m carrying over from the jus ad bellum into the ongoing conflict.

Katharine: As I listen to you, I’m thinking about some of the references in the conduct of hostilities rules in IHL which have been interpreted very broadly by some States. To give an example, I’m thinking about the reference to ‘contribution to military action’ in Article 52(2) – in the definition of attack – which has sometimes been interpreted as providing space for a consideration to the goals of the broader military action. Is your argumentation in response to this kind of approach? You’re saying ‘ok, if you’re going to make a link to the broader military action when interpreting particular provisions of IHL, then please remember that the ad bellum framework has this necessity principle built in, meaning that we shouldn’t be talking about winning the war but about lawful violence under ad bellum rules’?

Andrew: That would be one way of looking at it, and we could mention that the same paragraph also demands that the destruction must offer a definite military advantage in the circumstances ruling at the time, but apart from suggesting that the aerial bombardment of cities and the use of atomic bombs in the Second World War cannot be justified by military necessity, my focus was also on status killing. A soldier is running away from you. Or a soldier is sleeping. Or a soldier is swimming or soaking in the bath naked. It is not necessary to kill that person. But text books and my students keep telling me that you are justified in doing that because IHL says that you can do it. My point is simply that it’s not necessary to kill in those circumstances. Now of course the sleeping soldier is just the cliché which gets your attention, but consider the situation of retreating troops. It can’t be necessary for the defending state to massacre retreating troopswho are unlikely to pose a relevant threat. .

Katharine: I’d like to now zoom out a bit from the nitty gritty of these arguments and talk about the fact that you’ve just written a book with the title ‘war’  and what that means. So you refer to the book by McNair & Watts who wrote in 1966 that the term war was out of fashion in international law. It seems that in some other disciplines the term might be coming back, and you know that I took part in a podcast discussion with Professor Jolle Demmers from Conflict Studies at Utrecht University who was advocating that the term war should come back. I’m wondering, do you think your book might be a sign that the term war is coming back into use in legal scholarship or does the fact that you conclude in your book that no rights and obligations flow from the state of war, means that ‘war’ is, or should be, on the way to the legal dustbin?

I had hoped that I could conclude that that the concept of war should go to the legal dustbin, but I feel that a focus on war is coming back for all the reasons that you discuss in the podcast.  Other disciplines don’t have the same concerns as we do, that we might be triggering rights and obligations that shouldn’t exist, their concern, as you know from the podcast, is that by not calling it war you sanitize it. And for the people on the ground and the people being shot at, it certainly feels like war. And we as lawyers probably shouldn’t be part of a discourse that covers up the horror of what is going on. We need to draw attention to this violence as war in order to get it stopped. By saying that the US continues to be at war, and has a ‘forever war’ and that the war in Afghanistan is not over, you generate political attention and resistance to that violence. I don’t think that we should underestimate that.

I suppose my plea is that in calling a conflict a war we do not allow states to use old belligerent rights from centuries ago when states went to War, and all states concerned agreed that each warring state had draconian possibilities to do all kinds of things (including what is ‘necessary’ militarily to win the war).

Another chapter in the book is very much about the failure of the judiciary and the legislative branches to scrutinize the executive when they say that they are using force or engaging in hostilities – whether they call it war or not. This debate is ongoing now in the US, and I recently tried to make the point in the Economist that we need more scrutiny of the executive in these contexts. By calling it war, and introducing new kinds of legislation for war powers, we’ve probably got a better chance of controlling violence than if we give it a more sanitized name.

Katharine: In your book you refer to the question of whether more forceful wars might be somehow better for humanity. You deal with it quite shortly as if it isn’t really an argument to be taken seriously. When I read that in the book, l became quite intrigued to hear what you think of Samuel Moyn’s new book Humane if you’ve already got your hands on it, which touches on this argument. I know that you wrote a short letter in the Guardian recently, but I wondered if you might like to say some more on this point.

I’m happy to consider myself a human rights lawyer. And one of the cardinal rules of human rights law is that torture is always unacceptable, even if it will save lives or shorten an armed conflict. So for me, it’s an extension of that fundamental rule. If we accept that you cannot torture someone, even if they know the location of a ticking bomb and you’re going to save thousands of lives, then I think the same logic must apply so that we say that we cannot argue for a more brutal war, even if it would be a shorter war and more people would be saved. I don’t believe that the fact of a war means that we abandon this morality. For me, it’s just an extension of that really Kantian idea, I suppose, that that you cannot sacrifice one individual for the greater good, in a way that destroys their dignity. I don’t mean you can’t lock them up or restrict their freedom of expression, we’re talking about the brutality of torture and killing.

Now I am pretty sure that Moyn is not really arguing for more brutal wars, he is, I think, making two points, bouncing off Tolstoy’s quite eye-catching idea that if wars were more brutal, we would be less likely to fight them.  I think first, he is saying that the energy that is put into pointing out the inhumane treatment during armed conflict – energy by people like you and me, if you like human rights lawyers or IHL lawyers, could be more effectively deployed in challenging the resort to war in the first place. In other words human rights lawyers should have spent more time challenging the US presence in Afghanistan and Iraq and the resort to drones there and elsewhere, and he’s making that point quite forcefully and he’s obviously had a reaction to it.

And there is a second thing he’s doing with this argument, he is saying that the purported humanization of the rules makes the drone attacks more palatable. If the public feel that drone strikes are only targeting combatants and those directly participating in hostilities, and that civilians are being spared as much as possible, it makes the killing more in accordance with humanitarian law and makes them more acceptable. And then he couples this last point with the idea that because drones strikes are taking place away from our gaze, in the same way that the slaughter of animals is happening away from the gaze of the genteel ladies in the Tolstoy stories, then somehow that makes it easier to happen because we don’t protest about it and we’re not disgusted by it. He is saying that by focusing on how to humanize these rules for war, we’re missing a chance to actually denounce the use of violence in the first place. So from that perspective it’s a good series of points. But I don’t think he’s calling for more brutal wars, he’s actually arguing for less war. And he’s not saying that if we had more brutal wars, we would have fewer wars. He’s challenging people to look at the brutality of war, and not concentrate on the humanization of war.

Katharine: Yes, but it’s also not an either or thing, is it?

Andrew: I think that’s absolutely right, and maybe he doesn’t accept that enough in the book, although of course he’s trying to make a point. There are plenty of people, and he accepts this, who struggle on both fronts. He’s just making the point that we should be struggling more on the first front i.e. the jus ad bellum front, if you want to put it like that.I would say you can do both at the same time, and perhaps I am also saying that the prohibitions from the first front ought to be seen as part of the rules which control what is prohibited in the particular conflict being fought. The killing or destruction is not to be solely judged by whether or not it is prohibited under international humanitarian law but also under the international rules of necessity and proportionality as they apply to states using force abroad.So, no, it’s not an either or thing. We should be constantly be looking at both sets of rules.

Katharine: So Andrew I want to end this interview with a very wide question to you about what you would like your book to achieve? If your book would achieve one thing in its journey out into the world, what would it be?

I can hope that when the reader hears other people using the word war, they stop and think about what sort of action is actually being justified, is it wise? is it justified? And how would they feel if their family and friends were the ones being rounded up or bombed just because they’ve been named as the enemy.

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