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Military Necessity and the Cultures of Military Law

  • DAVID LUBAN
Abstract

Military and humanitarian lawyers approach the laws of war in different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. The result is two interpretive communities that systematically disagree not only over the meaning of particular law-of-war norms, but also over the sources and methods of law that could be used to resolve the disagreements. That raises the question whether military lawyers’ advice should acknowledge any validity to the contrary views of the ‘humanitarian’ community. The article offers a systematic analysis of the concept of military necessity, showing that civilian interests must figure in assessing military necessity itself. Even on its own terms, the military version of the law of war should seek to accommodate the civilian perspectives featured in the humanitarian version.

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1 Eyal Benvenisti comments on the same labelling phenomenon in Benvenisti, E., ‘Human Dignity in Combat: The Duty to Spare Enemy Civilians’, (2006) 39 Israel Law Review 81, at 83.

2 Ibid., at 82. The first quote, about conciliating military necessity and the laws of humanity, come from the preamble of the 1868 St Petersburg Declaration. The cleavage between military and humanitarian lawyers is an important theme in D. Kennedy, Of Law and War (2006), especially at 28, 37–9, 85–8, 129–30.

3 See, e.g., Newton, M., ‘Modern Military Necessity: The Role and Relevance of Military Lawyers’, (2007) 12 Roger Williams University Law Review 877, at 885 (noting that the ideals of humanitarian law ‘are all achieved in the context of facilitating the accomplishment of military missions’).

4 Kennedy, supra note 2, at 85.

5 Ibid., at 135. Kennedy describes the ICRC's restatement of customary international humanitarian law as ‘advocacy’ rather than legal analysis – a debatable assertion. Ibid., at 88, 97.

6 Dinstein, Y., ‘Concluding Remarks: LOAC and the Attempts to Abuse or Subvert It’, (2011) 87 International Law Studies, 483, 488 (ed. R. A. Pdrozo and D. P. Wollschlaeger), http://www.usnwc.edu/Research–Gaming/International-Law/Studies-Series/documents/NavalWarCollegeVol-87.aspx (accessed 20 December, 2011).

8 Ibid., at 493.

9 For example, an eminent British lawyer recollected to me that the British government had been persuaded to issue the UK Military Manual (which had been stalled in the bureaucracy) because the ICRC was about to issue its own study of customary international humanitarian law and ‘we needed to get in our retaliation in advance’.

10 In US ethics rules, the governing standard is that of ABA Model Rule 2.1, ‘Advisor’: ‘In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation’. Related rules are 2.3, ‘Evaluation for Use by Third Persons’, the comments to which explain that such an evaluation cannot contain statements of fact or law known by the lawyer to be false, and rule 3.1, prohibiting lawyers from frivolous factual and legal assertions in judicial proceedings.

11 K. Anderson, ‘Who Owns the Rules of War?’, New York Times Magazine, 13 April 2003, 38.

12 See Waldron, J., ‘The Irrelevance of Moral Objectivity’, in George, R. (ed.), Natural Law Theory: Contemporary Essays (1992), 158.

13 So I have argued in D. Luban, Legal Ethics and Human Dignity (2007), at 131–61.

14 See Holmes, O. W. Jr., ‘The Path of the Law’, (1897) 10 Harvard Law Review 457.

15 This is a major theme in W. B. Wendel, Lawyers and Fidelity to Law (2010).

16 The American Bar Association explains its rule of candour thus: ‘Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, the lawyer endeavors to sustain the client's morale and may put advice into as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client’. Model Rule 2.1, cmt[1]. I have argued that the rule of thumb in practice should be that the lawyer's advice is more or less the same as it would be if her client wanted the opposite outcome from the one she knows her client wants. Luban, D., ‘Tales of Terror: Lessons for Lawyers from the “War on Terrorism”’, in Tranter, K.et al. (eds.), Reaffirming Legal Ethics: Taking Stock and New Ideas (2010) 56, at 61.

17 This is not so unusual for lawyers in civil-law systems, where independence from the client is one of the defining principles of legal ethics. German rules, for example, define the lawyer as an ‘independent organ of the administration of justice’, and independence means independence from the client as well as from the state.

18 Swaine, R., The Cravath Firm and Its Predecessors, 1819–1947, Vol. 1 (1946), at 667. Channeling Elihu Root, an Israeli JAG once commented, ‘Our job is to let the army operate.’ Quoted in Cohen, A., ‘Legal Operational Advice in the Israeli Defense Forces: The International Law Department and the Changing Nature of International Humanitarian Law’, (2011) 26 Conn. JIL 367, at 382–3. US JAGs repeatedly told the same thing to Laura Dickinson. Dickinson, L. A., ‘Military Lawyers on the Battlefield: An Empirical Account of International Law Compliance’, (2010) 104 AJIL 1, at 20.

19 Jessup, P. C., Elihu Root, Vol. 1 (1938), at 133. Amichai Cohen's study of the Israeli Defense Forces’ International Law Division also reports instances of ‘courageous young lawyers who stood up to over-eager commanders, and halted some dangerous and illegal operations’. Cohen, supra note 18, at 382.

20 Kennedy, supra note 2, at 167.

21 See Dickinson, supra note 18, at 18–19, discussing US JAGs’ self-perception of the importance of convincing soldiers and officers that they belong to their common culture. Dickinson also quotes JAGs who were aware of the danger of over-identification, and who criticized a JAG who ‘went native’ by not reporting war crimes by members of his unit, because ‘his loyalty to the command trumped his ethical duty [in his own mind], and because he was in combat with them’. Ibid., at 26.

22 For a related version of the LOAC vision of law, see Anderson, K., ‘The Role of the U.S. Military Lawyer in Projecting a Vision of the Laws of War’, (2003) 4 Chicago JIL 443. Anderson proposes that the moral vision shared by US military lawyers consists in a commitment to winning (what I am calling ‘military necessity’) coupled with a commitment to sovereign democratic governance. Ibid., at 445.

23 Oxford Laws of War on Land (1880) (quoting Jomini), available at http://wwi.lib.byu.edu/index.php/Oxford_Laws_of_War_on_Land.

24 On this seemingly obvious point, surprisingly often ignored, see Shue, H., ‘Laws of War’, in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law (2010),511 at 511–16. ‘I think the fundamental attitude of the laws of war . . . can be well captured with the contemporary pithy phrase “shit happens”. We are dealing with war. . .. The purpose of the laws of war is to constrain the “shit” when the “shit” happens’. Ibid., at 516. It is still shit.

25 Schmitt, M., ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, (2010) 50 Virg. JIL 795, at 799.

26 For an example of reasoning of the sort described here, see Bellinger, J. B. III and Haynes, W. J. II, ‘A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law’, (2007) 89 IRRC 443, at 453 (‘These limitations in treaty provisions . . . are not inadvertent, but reflect . . . legitimate State and military concerns, making it very unlikely that States would acquiesce in the overbroad principle depicted in the rule [proposed by the ICRC]’).

27 In international doctrine, textualism and purposivism are co-equal, as evidenced by the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Article 31(1) (‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’).

28 Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian Law, Vol. 1 (2005), at xxix.

30 UK Ministry of Defence, The Manual of the Law of Armed Conflict (2004), Section 3.1.

31 ICJ Statute, (1945) Charter of the United Nations, 1 UNTS XVI Annex, Article 38(1)(b); American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987), Section 102(2).

32 Bellinger and Haynes, supra note 26, at 444–6.

33 SS Lotus case France v. Turkey, PCIJ Rep Series A No 10, at 14.

34 See, e.g., Schmitt, supra note 25, at 798–9.

35 UK Manual, supra note 30, at Section 1.11.

36 For worries about second-guessing command decisions in a different context, see Newton, supra note 3, at 896.

37 Prosecutor v. Gotovina, Judgement, Case No. IT-06-90-T, T. Ch. I, 15 April 2011, section 1910.

38 Critiques of Gotovina include Operational Law Experts Roundtable on the Gotovina Judgment (2012), http://www.law.emory.edu/fileadmin/NEWWEBSITE/Centers_Clinics/IHLC/Gotovina_Meeting_Report.pdf (accessed 27 January, 2012); G. S. Corn and G. P. Corn, ‘The Law of Operational Targeting: Viewing the LOAC through an Operational Lens’, S. Texas L. Rev. (forthcoming), available on SSRN at papers.ssrn.com/sol3/papers.cfm?abstract_id=1913962 (accessed 27 January 2012). The critics also fault the Trial Chamber's fact finding, and emphasize that only a tiny proportion of the total number of shells fired by Gotovina's forces were alleged to be indiscriminate – strong circumstantial evidence ‘that the HV took the rules of distinction and of proportionality into account’. I take it that this is a different objection – not that the Tribunal wrongly second-guessed a decision that should rightly lie within a commander's discretion, but that it reached the wrong conclusion on the evidence before it. I am grateful to Geoff Corn and Laurie Blank for clarifying these issues for me.

39 Prosecutor v. Gotovina, Judgement, Case No. IT-06-90-A, App. Ch., 16 November 2012, at para. 82.

40 Parks, W. H., ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’, (2010) 42 NYUJILP 769, at 797–8.

41 See Dennis, M. J., ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, (2005) 99 AJIL 119, at 122–7; Banković and Others v. Belgium and 16 Other Contracting States, Decision of 19 December 2001, [2001] ECHR (Ser. A), at 59–63 (holding that the European Convention on Human Rights’ jurisdiction does not include a military adversary's territory, and therefore relatives of civilians killed in NATO bombing of a Belgrade television station have no cause of action for violation of human rights under the Convention).

42 Prosecutor v. Furundzija, Judgement, Case No. IT-95–17/1-T, T.Ch. II, 10 December 1998, at para. 183.

43 Prosecutor v. Tadić, Judgement, Case No. IT-94–1-A, Appeals Chamber, 15 July 1999, at para. 96.

44 Soering v. United Kingdom, Decision of 7 July 1989, [1989] ECHR (Ser. A.), at 87.

45 Henckaerts and Doswald-Beck, supra note 28, at xxxv, quoting the ICRC's statute, Articles 5(2)(c) and 5(2)(g).

46 Military lawyers may reject this proposition, arguing that decisional law by international tribunals is not authoritative and represents, in the words of the ICJ's Statute, only ‘subsidiary means for the determination of rules of law’. Schmitt, supra note 25, at 816, quoting ICJ Statute, Article 38(1)(d). However, this is not a strong argument. Technically speaking, the article Schmitt quotes from the ICJ Statute governs only the ICJ itself, not any other tribunal or interpretive body. Given the severely limited competence of the ICJ (only states may be parties before it, and its decisions are binding only on the parties to the case for that particular case), it is easy to see why its governing statute might give decisional law diminished status in ICJ practice. One might reasonably conclude that the ICJ Statute's demotion of decisional law is idiosyncratic and lacks wider significance. No other tribunal is compelled by the ICJ Statute to treat its own decisional law as ‘subsidiary’, or for that matter to treat any other tribunal's decisional law as subsidiary. And so no competent lawyer advising a client should place decisive weight on Article 38(1)(d). Even the law governing sources of law turns out to be anything but clear-cut.

47 E. Benvenisti, ‘Toward a Typology of Informal International Lawmaking Mechanisms and Their Distinct Accountability Gaps’ (unpublished manuscript, 2011).

48 Henckaerts and Doswald-Beck, supra note 28, at xxxii–xxxiii.

49 Henckaerts, J.-M., ‘Customary International Humanitarian Law: A Response to US Comments’, (2007) 89 IRRC 473, at 477.

50 E.g., Prosecutor v. Tadić, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-AR72, A.Ch., 2 October 1995, at para. 99 (‘reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions’), as quoted in Henckaerts and Doswald-Beck, supra note 28, at xxxiii; ‘Notably absent from many of these cases [in which international tribunals invoke customary international law] is a detailed discussion of the evidence that has traditionally supported the establishment of the relevant rules as law.’ Meron, T., ‘Revival of Customary Humanitarian Law’, (2005) 99 AJIL 817, at 819; See also Abbott, K., ‘Commentary: Privately Generated Soft Law in International Governance’, in Biersteker, T. J.et al. (eds.), International Law and International Relations: Bridging Theory and Practice (2007), 166 at 168–9.

51 Weil, P., ‘Towards Relative Normativity in International Law?’, (1983) 77 AJIL 413, at 417.

52 Simma, B. and Alston, P., ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, (1992) 12 Australian Yearbook of International Law 82, at 89.

53 This conceptual point is given a deep defence in Darwall, S., The Second-Person Standpoint: Morality, Respect, and Accountability (2006), at 91–5.

54 K. Annan, ‘Secretary General Presents His Annual Report to the General Assembly’, 20 September 1999, http://www.un.org/News/ossg/sg/stories/statments_search_full.asp?statID=28 (accessed 5 April 2012).

55 For a detailed discussion, see Meron, T., ‘The Humanization of Humanitarian Law’, (2000) 94 AJIL 239.

56 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep., at para. 25.

57 This is the reading adopted by the UN's Human Rights Committee in General Comment No. 31 [80], ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add.13 (2004), at para. 3. The ICJ agreed, as demonstrated in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep., at paras. 108–111. However, in para. 10 of General Comment 31, the Human Rights Committee offers an even broader reading: ‘States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party’. This paraphrase reads ‘to all individuals’ distributively, in effect adding three words to the text:

3. Each State Party to the present Covenant undertakes (to respect and to ensure) to all individuals within its territory and [to all individuals] within its jurisdiction the rights [etc.]

Read together, in effect this changes ‘and’ to ‘or’ in the phrase ‘to all individuals within its territory and subject to its jurisdiction’.

58 See Henckaerts and Doswald-Beck, supra note 28; Al-Skeini and Others v. The United Kingdom, Decision of 7 July 2011, [2011] ECHR 1093.

59 C. Savage and E. Bumiller, ‘An Iraqi Massacre, a Light Sentence, and a Question of Military Justice’, New York Times, 27 January 2012.

61 C. J. Chivers, ‘NATO's Secrecy Stance’, New York Times, 24 March 2012; N. MacFarguhar, ‘U.N. Faults NATO and Libyan Authorities in Report’, New York Times, 2 March 2012.

62 Report of the International Commission of Inquiry on Libya, UN Human Rights Commission (advance unedited edition) A/HRC/19/68, 2 March 2012, at paras. 88–89, 130, available at http://www.nytimes.com/interactive/2012/03/03/world/africa/united-nations-report-on-libya.html.

63 Gotovina, supra note 37, at para. 1911. To be clear, I am not taking sides on who is right on the facts.

64 Gotovina, supra note 39, at para. 82.

65 Notably, the Appeals Chamber declined to comment on the Trial Chamber's proportionality conclusion about the shelling of Martić's apartment. Ibid., at fn 252.

66 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, PR/P.I.S./510-E (2000), at para. 5.

67 Ibid. at para. 62.

68 Ibid., at paras. 71 and 78.

69 Ibid. at para. 76.

70 Geneva Conventions: 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31, Art. 49; 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85, Art. 50; 1949 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135, Art. 129; 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 267, Art. 146. Each of the conventions obligates states ‘to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts’. This represents a remarkable break from other international criminal treaties, which make universal jurisdiction merely a fallback option if extradition fails. State practice: more than a dozen states have undertaken universal-jurisdiction prosecutions. For comprehensive data, see M. Langer, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes’, (2011) 105 AJIL 1, at 8 and 42 (Tables 1 and 2). Even the United States, which is officially ‘allergic to’ universal criminal jurisdiction, has used it in terrorism cases. See United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991); United States v. Rezaq, 134 F.3d 1121 (D.C. Cir. 1998). ICJ: Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Jurisdiction, Mootness and Admissibility, Judgment of 14 February 2002, [2002] ICJ Rep. 3 (10 judges discussed universal jurisdiction in non-binding separate opinions, dividing 5–4 in favour of it with one ‘abstention’).

71 Newton, supra note 3, at 895.

72 Newton adds: ‘Continued ownership of the legal regime by military professionals, in turn, sustains the core professional identity system of military forces. Failure to keep the legal norms anchored in the real world of practice would create a great risk of superimposing the humanitarian goals of the law as the dominant and perhaps only legitimate objective in times of conflict. This trend could result in principles and documents that would become increasingly divorced from military practice and, therefore, increasingly irrelevant to the actual conduct of operations’. Ibid., at 895–6. See generally, Anderson, supra note 11.

73 If state officials alone took the internal point of view, ordinary citizens would confront legal directives as nothing more than edicts from the ‘gunman writ large’ – and thus, in Hart's terminology, citizens would be obliged to obey but not obligated, contrary to Hart's own view that the law obligates, not merely obliges. See Luban, supra note 13, at 136–43.

74 S. C. Neff, War and the Law of Nations: A General History (2005), 64 (original emphasis).

75 F. Suarez, De Triplici Virtute Theologica, Fide, Spe, et Charitate (The Three Theological Virtues, Faith, Hope and Charity), in G. Williams et al. (trans.), Selections from Three Works (1944), at 840, as quoted in Neff, supra note 74, at 65.

76 T. Hobbes, Leviathan, ed. Edwin Curley (1994), 78. Hobbes was not entirely consistent in holding that war is not a law-governed activity. In De Cive, he wrote that ‘in the state of nature, it is lawful for everyone, by reason of that war which is of all against all, to subdue and also to kill men as oft as it shall seem to conduce unto their good’. T. Hobbes, On the Citizen, in W. Molesworth (ed.), The English Works of Thomas Hobbes of Malmesbury, Vol. 2 (1841), at 113.

77 Neff cites Bynkershoek and Rousseau in this regard. Neff, supra note 74, at 148.

78 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight. Saint Petersburg (1868), ‘Introduction’, available at http://www.icrc.org/ihl.nsf/FULL/130?OpenDocument.

79 US v. List (American Military Tribunal, Nuremberg, 1948), 11 NMT 1230, at 1253.

80 Dinstein, Y., The Conduct of Hostilities under the International Law of Armed Conflict (2004), 18.

81 See Downey, W. Jr, ‘The Law of War and Military Necessity’, (1953) 47 AJIL 251. An important contribution to the history of the legal concept of necessity is Brian Simpson's magnificent Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise (1984). Simpson shows that the famous British prosecution of ‘lifeboat cannibalism’ – after many years in which such incidents were not prosecuted – represented a change in outlook according to which the high seas are no longer regarded as a law-free state of nature, and in which law's empire rules the waves. In Simpson's view, this legal imperialism was importantly tied to British imperialism of a more material variety.

82 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of the Victims of International Armed Conflict (Protocol I), 1125 UNTS 3 (1978), at Art. 71(3).

83 Ibid., at Art. 51(2).

84 Lieber, F., ‘U.S. War Dep't, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field (Apr. 24, 1863)’, in Schindler, D. and Toman, J. (eds.), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 4th edn (2004), 3 at 3. It is worth noticing that Lieber, like the Hostages formula, limits military necessity to lawful acts. In this respect, the Lieber code and the Hostages formula agree in rejecting Hobbesian scepticism about law. On Lieber's expansive conception of military necessity, see generally J. Witt, Lincoln's Code: The Laws of War in American History (2012).

85 Walzer, M., Just and Unjust Wars: A Moral Argument with Historical Illustrations (1977), 144.

86 Even this is debatable. See generally, Luban, D., ‘Risk Taking and Force Protection’, in Benbaji, Y. and Sussman, N. (eds.), Reading Walzer (forthcoming 2013). Under this theory, armies could count force protection against remote dangers as an absolute value regardless of how much hardship achieving minute reductions in risk inflicts on civilians. In Gary Solis's words, ‘an attacker with superior arms would be free to annihilate all opposition with overwhelming firepower and call any civilian casualties collateral’. G. Solis, The Law of Armed Conflict: International Humanitarian Law in War (2010), 285.

87 Vitoria, F., ‘On the Law of War’, in Pagden, A. and Lawrance, J. (eds.), Vitoria: Political Writings (1991), at 315–16.

88 See HCJ 2056/04 Beit Sourik Village Council v. Gov't of Israel (Beit Sourik) (2004); See also HCJ 7957/04 Mara'abe v. Prime Minister of Israel (Alfei Menashe) (2005).

89 HCJ 2056/04 Beit Sourik Village Council v. Gov't of Israel (Beit Sourik) (2004), at para. 32.

90 Ibid., at para. 61. For a detailed discussion, see generally Hayashi, N., ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’, (2010) 28 BUILJ 39.

91 HCJ 2056/04 Beit Sourik Village Council v. Gov't of Israel (Beit Sourik) (2004), at para. 41.

93 Lazar, S., ‘Necessity in Self-Defence and War’, (2012) 40 Philosophy & Public Affairs 1, at 3.

94 Lazar emphasizes this point, which (I believe) originates in Hurka, T., ‘Proportionality in the Morality of War’, (2005) 33 Philosophy & Public Affairs 34, at 38. See also Hurka, T., ‘Proportionality and Necessity’, in May, L. (ed.), War: Essays in Political Philosophy (2008), 127 at 129.

95 Koskenniemi, M., ‘Occupied Zone – “A Zone of Reasonableness”?’, (2008) 41 Israel Law Review 22, at 22.

96 Ibid. at 24 (citing Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 131, at para. 122, wherein the International Court of Justice rejected the Israeli separation barrier in its entirety because it impedes Palestinian self-determination and favours an illegal policy of settlements).

97 Koskenniemi, supra note 95, at 23.

99 He writes that the Israeli Supreme Court's posture ‘relies . . . on a certain sympathy in the audience . . . For an unsympathetic audience, it will appear as indeterminate wordplay and pompous self-aggrandizement’. Ibid.

100 Hurka, supra note 94, at 45.

101 For a classic treatment, see generally Kitcher, P., ‘The Division of Cognitive Labor’, (1990) 87 Journal of Philosophy 5.

102 For further discussion of this point, see Luban, supra note 13, at 194–6.

103 Kennedy, supra note 2, at 135.

104 Ibid., at 167.

105 Ibid., at 171.

106 Ibid., at 169.

107 W. V. O. Quine, Word and Object (1960), 3, (generally paraphrasing Neurath, O., ‘Protocol Statements’, in Cohen, R. and Neurath, M. (eds.), Philosophical Papers 1913–1946 (1983), 92).

* University Professor in Law and Philosophy, Georgetown University Law Center []. I am grateful to my colleagues at the Institute for Advanced Studies, Hebrew University, where most of this paper was drafted; and, of course, to the Institute itself. I presented this paper at the Third Annual ELAC Workshop on War, Merton College, Oxford, and again at Harvard's International Law Colloquium, the Fordham Law School Research Workshop, the Georgetown faculty workshop, the University of Pennsylvania Law and Philosophy seminar, and the Fifth Annual National Security Law Faculty Workshop in Houston. I would like to thank the various workshop participants, and in particular Bill Alford, Yitzhak Benbaji, Eyal Benvenisti, Gabriella Blum, Geoff Corn, Janina Dill, LTC Richard DiMeglio, Charles Garraway, Claire Finkelstein, Leo Katz, Andrew Kent, Marty Lederman, Mike Lewis, and David Super. The usual disclaimer that these commentators are not responsible for errors in the paper applies strongly here – indeed, some of them disagree vigorously with the outlook of the paper. Comments on an earlier draft by an anonymous reviewer for the Leiden Journal of International Law were extremely helpful.

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