Why is it that the laws of war, or international humanitarian law (IHL), allow no justification for breaking the law even if where such conduct would actually produce less humanitarian harm than following the law? In introducing the concept of a humanitarian necessity justification, this paper suggests that it should. It first addresses the puzzle of IHL’s existing absolutist stance through three historical case studies in which actors broke the law under a claim of necessity, or a mixed concern for self and others: The “Early Warning Procedure” employed by the IDF in the West Bank, the generic case of torture, and the atomic bombings of Hiroshima and Nagasaki. It then examines whether the domestic necessity defense in criminal law might be transposed onto the international level, ultimately finding that such transposition is impossible. In further searching for an account for IHL’s absolutist stance, the paper turns to first-order accounts – deontological, consequential, and institutional – only to demonstrate that none of these accounts offers a convincing explanation for the exclusion of a humanitarian necessity paradigm. Ultimately, the paper offers a blueprint for a definition for a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good. The central component of the definition is a requirement that the greater humanitarian good would be for the benefit of the enemy, rather than for oneself. Under such paradigm, the Early Warning Procedure and perhaps even the atomic bombing of Hiroshima might be justified, while the paradigmatic case of interrogational torture could not.
Date of Authorship for this Version
Blum, Gabriella, "THE LAWS OF WAR AND THE “LESSER EVIL”" (2008). Harvard Law School Faculty Scholarship Series. Paper 24.