7 - Uncertainty, Risk Management and Duty to the Law

Summary

Chapter 7 considers how the framework proposed in Chapter 6 potentially contradicts international lawyers’ professional responsibilities. The chapter first considers different approaches to such questions in different countries and professional contexts. It then examines lawyers’ professional responsibilities when dealing with difficult jus ad bellum cases, reporting interviewees’ views of such responsibilities and of risk management techniques. By identifying and reducing risks of legal challenge to use of force, the framework potentially focuses lawyers only on their role as ‘counsellor’, helping governments do whatever they want, rather than their normative role of ‘conscience’, urging governments to change their behaviour to abide by law. Such a framework might even advise decision-makers to accept clearly unlawful force if there is little risk of an action facing legal challenge. The chapter nevertheless argues lawyers could use the framework developed in Chapter 6 while fulfilling their professional responsibilities, by seeking a form of Rawlsian ‘reflective equilibrium’ with their own personal professional judgement to address legal and factual uncertainty and extra-legal intuitions in hard cases engaging the jus ad bellum.