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# Posted 12:53 PM by Patrick Porter

JUDICIALISING WAR: THE ROAD TO BRUTALISATION?

Just following on from Ken’s excellent post, a question

The courts of liberal societies might increasingly decide that its armed forces have identical human rights as civilians. Will this not make our ‘way of war’ increasingly brutal?

If the welfare of troops becomes a litigious matter, where risk, accident, injury, or mistakes under pressure that endanger one’s own combatants are now deemed intolerable, militaries under pressure will act to protect themselves. They will do this, possibly, by transferring risk onto the foreign populations they fight amongst.

War is never without risk. It is a question of how that risk is managed and distributed. As Martin Shaw once warned:

‘…in minimising the risk to its own combatants, the West consistently adopts methods of war that effectively transfer risk from its own personnel to civilian non-combatants, so that far more civilians are killed, injured and otherwise harmed than Western military personnel. In any situation where the question of priority rises, the West is likely to put its own soldiers’ lives before those of civilians.’

I don’t therefore say that society should be blind to gross incompetence or neglect. But neither are we entitled to ignore the effect of a risk-averse military living in the shadow of courts. Its not hard to imagine officers on a remote frontier being confronted with the choice of risking their women and men in a dangerous assault on a town, say, or indiscriminately blitzing that town for fear of an inquest.

Given the inherent chaos, confusion and incomplete knowledge that comes with war, and the increasing intolerance of this in our media-political world, who is to say confidently that any mistakes will not be punished?

And this is not just an abstract fear. As Israeli officials have acknowledged, in its recent conflict in Gaza, the IDF was under strict instructions to use overwhelming force in order to minimise its own casualties. This is a dynamic that the judicialisation of warfare can encourage. It is not ultimately a triumph of civilian ethics, but a small prod towards indiscriminate warfighting. War amongst the people, indeed.

Cross-Posted at Kings of War

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Comments:

It seems very strange for Martin Shaw to call out the "West" for engaging in an activity that is not only universal, but decidedly less pronounced in the West than in any other part of the world. (Since he called out Israel, but not Nicaragua, I'm assuming that by "West" he means the industrialized democracies.) It's like calling out Florida for being cold in January.

As for the rest, I would agree that war needs a bit of lawyering and that the Geneva Conventions are a good thing. The problem, of course, with a "little bit of lawyering," or any other form of regulation, is that it inevitably morphs into a great deal of lawyering that becomes a problem in itself and has to be pushed back against.

But I doubt there's anything we can do about that. It's just the way of things.

# posted by

tim maguire : 5:59 PM