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Law, Legitimacy and Morality of Warfare: A Conversation about ‘Legitimate Targets? Social Construction, International Law and US Bombing’

Air and Marine officers control and watch images taken by Unmanned Aerial Vehicles. Image: Gerald Nino/Wikimedia

This book review was originally published by Politics in Spires on 19 July, 2015.

In the following conversation concerning her recent publication, Dr. Janina Dill, Departmental Lecturer in International Relations at the University of Oxford, navigates a clear-cut path through concepts of International Law (IL), legitimacy and morality in warfare. From a theoretical perspective, she explains the relationship between constructivism, IL and international relations and highlights how our understanding of this relationship may be better informed through new concepts such as ”behavioural relevance” and “normative success”. From a practical perspective, she examines the historical shift in the conduct of warfare and the use of drone warfare by the United States. In response to Brett Rosenberg’s questions, Dr. Dill contemplates whether there are in fact legitimate targets in war.

  1. Many have argued that International Law (IL) is merely epiphenomenal of existing power relations. What role does — or can — international law play in the international system? And what insights does constructivism offer?

 One of the most important contributions of constructivist scholarship was to demonstrate that states do not always act in accordance with instrumental rationality. Sometimes state behaviour can best be accounted for with a view to internalised normative beliefs. By the same token, sometimes states comply with IL because the legal rule aligns with a prior shared normative belief.

Of course, rather than solving the problem of how to grasp the ‘counterfactual’ added value of IL for state behaviour, this insight complicates it. I accept, what I call the causal dependence of IL on interests and norms, and argue that IL’s added value lies in the effects that compliance has on state behaviour. In other words, it makes a difference whether a state simply follows their interests and normative beliefs or whether the state follows them via compliance with law. From a constructivist point of view, there is, of course, no stable dichotomy between interests and norms. In fact, what a state considers in its interests is a matter of perception. I argue that IL has two types of effects on how interests and norms are perceived. I call them the intellectual and the motivational effects of IL. Let me explain.

Reasons for action (i.e. interests and norms) are not stable, but we can conceive of them as falling on a continuum with, on one end, immediate imperatives for action that promise relatively close gratification being perceived as interests. Those imperatives, on the other end, which are considered more abstract or remote tend to be perceived as based on normative considerations. IL then presents the actor with a ready compromise between what is assumed to be the instrumental course of action and the demands of shared normative beliefs in a certain situation. IL also, contrary to more abstract normative codes such as much of morality or social norms, tends to specify in detail which behaviour is required in order to attain an acceptable outcome that reflects what a society considers to be an adequate compromise between interests (utility) and norms (appropriateness). That action guidance of IL mitigates unintended consequences and makes it easier for an actor to align right intent (comply with law) with an acceptable compromise between interests and norms. This is what I call the ‘intellectual effect’ of IL. This intellectual effect means not acting in line with law is more visible in the outcome of an action guided by law than is not acting in line with other normative proportions is visible in the outcome of action not guided by law. This is the justiciability of conduct that IL affords and the basis of what I call IL’s ‘motivational effect’. Compliance with law compared to acting rightly is on the continuum of perceived motivational forces further towards the end that is perceived as immediate, as ‘in a state’s interest’.

In brief, IL does not exist independently of interests and norms. It is a compromise between variables on which it simultaneously depends. Yet, IL is not reducible to its component variables as it can have separate effects on behaviour.

  1. You advance several new concepts of IL, including “behavioral relevance” and “normative success,” in order to build a new “constructivist theory of international law.” What is new about this theory?

One contribution of the theory is that it shifts our focus from ‘reasons for which states comply with IL’ to the effects of compliance on behaviour as the key to understanding what IL is and how it makes a difference for state behaviour. Another innovation lies in the differentiation between behavioural relevance and normative success you mentioned. With the introduction of these terms I wanted to draw attention to the fact that when we speak of the effectiveness of IL or IL’s role as a variable in international relations, it is crucial to differentiate between the question of whether IL has an effect on behaviour and the question whether we consider this effect to be normatively desirable. Making this distinction is particularly acute regarding the legal regulation of warfare, but it matters in all areas of international relations. Even conduct guided by IL may strike us as undesirable for two reasons. First, law has compromise character. It is rarely simply an expression of normative aspirations, but takes into account how states ‘want’ to behave. Second, indeterminate law even when complied with in good faith may yield a range of behaviours that may not be considered appropriate across the board. When we talk about war that means legality cannot and should not be the be-and-end-all of our normative conversations and scrutiny. Just because a certain action is legal does not mean it is perceived as legitimate, neither does it mean that action is necessarily morally justified.

  1. You describe a historical shift in the conduct of warfare from the Vietnam War to the Iraq War as one from warfare governed by the “logic of sufficiency” to “the logic of efficiency.” What role has increased recourse to international law played in causing this shift?

What I call the logic of efficiency aims to minimize belligerents’ expenses in time and blood over the achievement of their political goals – crudely put it is ‘sharp wars are brief and hence less destructive’. The logic of sufficiency aims to contain war as a purely military competition allowing only that harm which is necessary and sufficient for a competition between militaries geared towards ‘generic military victory’ to be possible. You could express the logic of sufficiency as ‘contained wars are the least destructive’.

IL, specifically the First Additional Protocol to the Geneva Convention asks belligerents to follow the logic of sufficiency. Yet, paradoxically increased recourse to IL in military decision-making starting after the end of the Vietnam War coincides with a relative rise of targeting choices following the logic of efficiency. I show that the indeterminacy of the law is ‘to blame’. It allows states to follow an ever stronger strategic imperative to get wars over with as quickly as possible while still being perceived as in compliance with IL. Crucially, a close enquiry into the decision-making of military commanders and operators in the US Air Force shows the cognitive and motivational effects of this indeterminate IL at work. In other words, the ‘legalisation’ of warfare does not just coincide with, but encourages the change in logics. IL proves to have a constitutive effect on the definition of a legitimate target of attack in US air warfare.

  1. You touch very briefly at the end of the book on the U.S. use of drone strikes. Is it possible to legally conduct these strikes?

This is not a popular thing to say, but drones when used during an armed conflict can be a perfectly legal means of delivering fire power from the air. While their ability to afford near perfect distinction and completely avoid collateral damage is often overstated, drones are certainly not inherently indiscriminate, which is the standard for the impermissibility of a weapon under International Humanitarian Law. International law does not require, encourage or reward that a belligerent puts their own forces into harm’s way. As long as a human being makes the decision whether and when to pull the trigger, from a legal point of view nothing rides on whether that person sits in the cockpit of a plane or in front of a screen thousands of miles away.

That being said, when drones are used, as it were, ‘outside’ of war a host of controversial legal questions arises, some of which are genuinely unresolved. I won’t be able to discuss them in any depth here, but let me just highlight one legal roadblock that a state encounters that wishes to use drones for targeted killings wherever its supposed enemies are found. The privilege IL affords to kill individuals (only combatants) without due process hinges on the presence of an actual armed conflict. Does a drone strike against an Al Qaida member in Somalia extend the battlefield of the war in Afghanistan to Somalia? Does it create an armed conflict between the US and Somalia in its own right? Or is such a drone strike a ‘peacetime’ assassination? If the strike is an act of war it may fall foul of the prohibition on the use of force in international relations enshrined in Article 2(4) of the UN Charter. If it is not, then it does not fall under the regulative purview of International Humanitarian Law and its permission to kill combatants without due process. The US has attempted to solve this dilemma by getting the consent of states on whose territories targeted killings take place. This, however, only releases the US from having violated the state’s right to territorial integrity, not the individual’s right to life.

  1. Are there any legitimate targets in war?

That is a very good question and the answer depends on what we consider to be the touchstone of legitimacy. I chose the term in the title because it is open to and actually requires specification. The three parts of the book focus on three different ways of understanding legitimacy: the first part enquires into the legal definition of a legitimate target. The second part asks, based on shared understandings of appropriate state conduct, what targets in war are perceived as legitimate. And the third part connects this to a moral approach to defining legitimate targets or justified killing in war. I argue that if the moral standard we bring to bear centres on the protection of individual rights, we cannot ex ante determine whether and what killing in war is morally justified and it is impossible for the belligerent to make sure only morally legitimate targets are attacked. To the extent that shared normative beliefs in international relations echo an individual rights-based morality, it is impossible for a state at war to only attack targets that are widely perceived as legitimate. That is true even for a belligerent that complies with IL. These complex relationships among legality, moral and perceived legitimacy account for the puzzle that inspired this research in the first place: that ever more legalized US air warfare encounters more rather than less public condemnation.


Dr. Janina Dill is a Departmental Lecturer in International Relations at the University of Oxford.

Brett Rosenberg is a DPhil candidate in International Relations at Oxford. Her research focuses on the impact of domestic debates over American national identity on foreign policy strategy.

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