Before we can have Law, we must have a Community of Common Concern.7-21-2014
Since World War II, the primary ambition of international humanitarian law — the law of armed conflict — has been to insulate military violence from the civilian population as is mandated in International Law. As such, military forces are required to identify themselves as , by wearing clearly marked uniforms, and to discriminate in their selection of targets: They cannot deliberately attack noncombatants or infrastructure that has no military use. Even with respect to legitimate targets, the attacker must exercise proportionality: Any collateral damage to noncombatants must be proportional to the military value of the target. Because this is “the law,” it is easy for observers — not to speak of partisans — to express their shock when noncombatants, including children, die. We find quick recourse to the discourse of “war crimes.” We hear demands for tribunals, as if the legality of these situations can be separated from their politics.
Recent events in Ukraine remind us of what actually happens when opposing politics turns violent: Noncombatants are injured and killed. The laws of warfare have never worked very well. Violence is never exact and tends to get out of hand; mistakes are made and vengeance is sought. Collateral damage can be horrendous, even within the boundaries of law. Even when care is exercised, a mistaken identification can mean hospitals, homes, vehicles or even airplanes are hit. Ironically, the more exact violence becomes, the less effective it may prove to be. Causing a lot of property damage is not going to resolve any deep conflict.
Measured against the laws of war, virtually the entire Ukrainian military would be illegal. Ukraine has a vast inventory of weapons incapable of discriminating between combatants and noncombatants. Its military operatives do not bear their arms openly and they do not identify themselves in order clearly to distinguish themselves from noncombatants. If they were to have to comply with the law, they would have no means of effectively deploying violence against the Seperatist forces. The rules of warfare were obviously not written with an eye to violent conflict between State and Anti-state forces. They were, for that reason, never effective in controlling the violence of population cleansing.
The asymmetry in forces, both in size and sophistication, makes it impossible to impose symmetrical legal obligations to both sides. In situations of extreme asymmetry, a new measure of proportionality enters the ethical calculus: a proportionality of overall injury. The indiscriminate character of the Ukrainian bombings is, in this view, not a measure of their illegality, but of the morality of their potential effectiveness in inflicting a proportionate injury.
Asymmetry leads to one sort of failure of law; symmetry in ultimate concerns leads to another. Humanitarian law has never been capable of dealing with conflicts over national survival. One visible demonstration of this is the maintenance of nuclear weapons. These weapons cannot discriminate and are completely disproportionate to any ordinary political end. They are for that reason “illegal,” but that judgment completely misses their political point of announcing the ultimate value of national existence — a value so great as to threaten the very continuation of life on earth.
This is why there is no possible solution to the Ukrainian conflict through violence — short of apocalyptic violence on one side or the other. Both sides see an ultimate value at stake. Situations of reciprocal, violent sacrifice cannot be managed by recourse to law, but only by a balance of terror. Thus, the Ukraine Army resorts to fight outside the law, and know that their most effective weapon is “collateral damage & fear.” The Separatist, on the other hand, try to bring a reciprocal threat of violence directly to the Ukrainian forces. Neither side, however, can allow that balance to get completely out of control, without risking everything.
Just as law cannot create a community among people who view each other as enemies, it cannot hold together a community once the bonds of political friendship fail. When communities pursue a violent course of secession, their disputes are not settled by law or even within the law. Indeed, secession marks the failure of law. The law cannot tell us which people should be states or where to draw the boundaries between states. The coming together and the coming apart of states demand more than law can offer. When such a conflict turns violent, as it has in the Ukraine, we must hope that we can trust the judgment of politicians, for the law has nothing useful to say.
About the Author:
Paul W. Kahn is Robert W. Winner Professor of Law and the Humanities and director of the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School.