The Duck of Minerva

The Duck Quacks at Twilight

Norms Are What Analysts Make of Them…? And Other Thoughts About Targeting Killings, Sieges, and War Law Development

February 25, 2011

Professor Michael Gross left a lengthy response at Current Intelligence to my remarks about his characterization of asymmetric war. I’m afraid he seems displeased with me:

Far superior to faint praise, it is still annoying when reviewers pick out controversial arguments but leave the impression that the author did not address them.

Oh dear. It’s true that, in my effort at brevity, I did give short shrift to many of the overarching strengths of the book: its breadth, up-to-date-ness, and unique and timely case studies on non-lethal weapons, assassination, the right to self-defense of national liberation movements and humanitarian intervention among others. But then again, this wasn’t a book review, just a brief response to a specific set of points Gross makes. My other essay referencing his book responds to a different set of equally specific points, and should be read as such. Neither is or is intended to define or respond to the entire book, which is a broad overview of dilemmas states and irregulars face in winning wars against one another. (If you want to read such a review however, here’s one. Professor Gross is also apparently writing an equivalent treatise on the moral dilemmas faced by irregulars, which I eagerly anticipate.)

At any rate, Gross goes on to engage the comments I did make at some length, for which I’m grateful. As one good turn deserves another, let me discuss some of his remarks and also try to clarify where I see the differences in our opinions – which are not so far apart really (we both care about war law and about protecting noncombatants) but which do differ somewhat on analytical, ethical and programmatic grounds.

First, I think a key difference in our thinking which is demonstrated in Gross’ response to my essay hinges on our use of the term “norms.” I tend to follow Jepperson, Katzenstein and Wendt in writing about ethical norms in a descriptive sense, as empirically identifiable “collective understandings about the proper behavior of actors with a specific identity.” I teach my students in Rules of War that analyzing the origins, extent and impact of norms as understood by political actors is very different from doing “normative theory” – that is, drawing on philosophical principles to make arguments about how states should behave.

But Gross uses the term to both describe norms and to make ethical arguments, often interchangeably. Consider, for example, the following:

Assassination (Chapter 5) was long reviled but took on new life in the 21st century to wage war against militants entrenched among civilians. Initially condemned as extra-judicial execution (by this writer among others), targeted killing has emerged as an effective means to disable non-uniformed combatants while sparing civilians many of the horrors of full-scale battle. Today, the debate turns on improving effectiveness and curtailing collateral harm. Virtually no one questions the morality of fingering combatants for killing. Yet this was the crux of a norm that stood fast since the American Civil War.

It should also be clear then that some practices can never evolve into acceptable norms of military conduct. This is true of disproportionate force, the so called “Dahiya” doctrine named after the Beirut neighborhood that was pulverized in a fruitless attempt to destroy Hezbollah’s command headquarters during the Second Lebanon War.

In the first sentence of the first paragraph, Gross describes the varying extent and strength of the anti-assassination norm and how it changed over time, an argument also made by Ward Thomas. He also argues that the norm has been eroded by current state practice and that this is reflected in the absence of concern over targeted killings. (This latter is an empirical statement and in theory empirically falsifiable, as I’ll show in a moment.)

In the second paragraph though, Gross is making a normative claim (as opposed to a descriptive claim about norms). He is arguing that there are standards that should not be crossed. At least he must be, because it’s certainly not the case that standards can’t be crossed in political reality: in fact many behaviors we today consider immoral were once perfectly acceptable.

This perhaps explains why I have more faith in existing international norms than Gross appears to have. Distinguishing between my own opinion of what they should look like and my understanding of what actors in the world actually think on these matters enables me to avoid my normative preferences with the way the world actually works.

For example, I am fairly certain Gross is empirically wrong about targeted killing. First of all, the fact that it’s considered effective doesn’t mean it’s considered normatively valid. Second, the fact that it is being practiced doesn’t necessarily undermine the anti-assassination norm unless you assume that targeted killing is assassination. (Actually, a far more nuanced argument on targeted kiling is developed by JW Fisher, who distinguished targeted killing from assassination on legal grounds and points out that targeted killing actually squares normatively with the anti-assassination norm, not challenging it, insofar as it is also designed to maintain/restore Westphalian order.) But most importantly, it is certainly not the case that targeted killing is uncontested. In fact it is so enormously controversial that the United Nations Special Rapporteur on Summary Executions has condemned the practice. Human Rights Watch has expressed grave concerns about the lack of transparency with respect to targeting decisions, making it impossible to evaluate the legality of such killings. There is simply no evidence of an international consensus that such actions are lawful. Whether I or Gross believes they should be considered lawful is entirely beside the point in terms of social scientific analysis.

The second way in which Gross and I differ – though only slightly – is on ethical grounds. (I say slightly because we largely agree on the big points: war law matters, the protection of noncombatants is important and trickier than it has to be, norm development is needed, strengthening of humanitarian principles is a good thing, the general neglect of the duties – and rights – of irregulars has been part of the problem.) Still, we are in disagreement about the ethics of specific solutions to these problems. Consider the following statement:

Are indirect participants off the hook or, as I suggest, do they bear some measure of responsibility for war and aggression? And, if liable, what is to be done with them? Here I make a modest suggestion: incapacitation. This means rendering infrastructures inoperable, apprehending civilian participants and restricting their movement through curfew, siege or incarceration. This limits freedom of movement but respects their right to protection from harm during war.

Perhaps so, and some readers may be in closer agreement with Gross than I on this point. But if nothing else an examination of the long-term effects of siege and incarceration on civilians does not necessarily “protect them from harm.” (It may protect them from death by explosives, but not from death by exposure, preventable disease or malnutrition; or from the psychological harms of captivity and separation from loved ones). Moreover this idea skirts the question of how to distinguish “indirect participants” from non-participants, all of whom would presumably be affected by measures such as siege, only pushing the distinction question down one layer of ethical complexity.

But the final and probably most important set of differences between us, which I elaborate here, is that Gross seems to argue that the natural and proper mechanism for “norm development” is mere state practice. The proposal above, for example, is for a change in state military doctrine. The evidence he provides for “norm change” in his book is the fact that certain states, especially the US and Israel, have changed their practices.

I view norm developments as distinct from and often taking place as a reaction to shifting state practice. They are the result of multilateral discussions among states, often the result of a longer period of normative dialogue within the wider global civil society, and you know these developments both by the nature of those conversations and the ways that states account for what they do and respond to what others do.

Ultimately Gross and I are asking the same big question: how can states further shrink the impact of war on civilians without losing wars to irregular fighters who themselves threaten civilian life? And many of the same smaller questions: what should direct participation mean in a transnational war? What is the proper metric for tallying the civilian dead and weighing them against military necessity? What obligations do governments owe the lawful yet innocent victims of war?

But where Gross’ answer is to propose specific doctrinal recipes for warring governments, my answer is simply: states need to develop an enforceable consensus on what the answers should be through multilateral dialogue and participation of global civil society organizations (not unilateral re-interpretation of the norms).

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Charli Carpenter is a Professor in the Department of Political Science at the University of Massachusetts-Amherst. She is the author of 'Innocent Women and Children': Gender, Norms and the Protection of Civilians (Ashgate, 2006), Forgetting Children Born of War: Setting the Human Rights
Agenda in Bosnia and Beyond (Columbia, 2010), and ‘Lost’ Causes: Agenda-Setting in Global Issue Networks and the Shaping of Human Security (Cornell, 2014). Her main research interests include national security ethics, the protection of civilians, the laws of war, global agenda-setting, gender and political violence, humanitarian affairs, the role of information technology in human security, and the gap between intentions and outcomes among advocates of human security.