Military Lawyers and the Two Cultures Problem

Military and humanitarian lawyers approach the laws of war—labeled “law of armed conflict” by the former and “international humanitarian law” by the latter—in very 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. This article argues that from these radically different axioms legal consequences systematically follow regarding treaty interpretation, the sources and reach of customary international law, the nature of international law, deference and discretion to military commanders, and the connection between humanitarian law and human rights law. 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. In recent years the differences between these interpretive communities have grown to outright antagonism—the “two cultures problem” in my title. That raises the question of whether military lawyers’ advice should acknowledge any validity to the contrary views of the “humanitarian” community. (The parallel question arises for humanitarian lawyers, but this article focuses on the military side.) The article argues that the decisive accomplishment of the humanitarian approach is the “civilianization” of the laws of war—the recognition that civilian interests matter just as much as military interests. The article then 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. The conclusion explores the possibilities of convergence between the military and humanitarian viewpoints