8 - The lack of normative success of international law in US air warfare

Summary

Normatively evaluating IL is an exercise that is as dubious to mainstream legal positivists as it is to critical legal theorists. It presupposes that one assigns IL a substantive goal other than the provision of objective solutions to normative problems, a goal for which IL itself cannot account. I hold that this is neither surprising nor problematic. The theory of IL proposed in Chapters 2 and 7 suggests that the role of law in society is to regulate social relations in accordance with a compromise between utility and appropriateness acceptable to that society. What that compromise looks like depends on the area of regulation and naturally differs across time and among societies. In other words, a standard for evaluating IL is necessarily historical-sociological in nature. We hence have to ask what we expect IL to do in war and whether IHL does it in US air warfare. Contemporary US combat operations from the air are unprecedented and unmatched regarding the room afforded to legal considerations. If IL can render warfare normatively acceptable, this ability is probably on display in US air operations.

Judging international law by the consequences of war

Wars inevitably cause deaths and suffering on a large scale. Could we expect IHL to avoid killing in war, or at least to protect civilians against incidental death? If those were our normative expectations of what IHL should accomplish during US combat operations, law could not be normatively successful without de facto prohibiting any use of violence and thus warfare as such. If IHL is to do more than repeat the general prohibition on the use of force in international relations, which is already established by customary law and enshrined in Article 2(4) of the UNC, we should not expect it to have absolute humanitarian goals. Section 2.2 showed that law is of necessity a compromise between appropriateness and utility. It needs to express an ideal of social coexistence rather than merely allowing actors to behave however they want to. Yet at the same time law cannot always prohibit actors from following immediate situational imperatives in order to meet a standard of maximum appropriateness either. Law would be disregarded as an ultimately irrational institution.