Mélange du Mercredi/Legitimate Targets? Social Construction, International Law and US Bombing

Welcome to Mélange du Mercredi (Wednesday Mix). Each week, we highlight one of the latest and greatest in reading, film and other scholarly resources, focusing on a variety of issues pertaining to international humanitarian law. As always, if you have suggestions, or would like to submit a post on something you feel our readers will also enjoy, we're happy to include them. Just email Editor Niki Clark

Legitimate Targets? Social Construction, International Law and US Bombing by Dr. Janina Dill

Reviewed by Bill Boothby, Royal Air Force and originally published in the International Review of the Red Cross

In this book, Dr Janina Dill takes on the considerable challenge of trying to work
out whether international law can effectively regulate the conduct of States in the
absence of an independent enforcing authority. She does this by considering the
law regulating conduct in war and, more specifically, the effectiveness of
international humanitarian law (IHL) in delimiting the scope of legitimate targets
of attack in US air campaigns. She uses this discussion as an indicator of the
wider ability of international law to regulate State behavior more generally.

After an introduction to the book, the substantive text is divided among
nine chapters and arranged in four parts. Part I, consisting of Chapters 1 and 2,
explains the constructivist theory of international law. Why States create
international law, why they comply with it and what is distinctive about its
norms are the questions that lie at the core of Chapter 1. Chapter 2 then explores
the constructivist theory associated with international law. Part II defines the
notion of a legitimate target in international law by reference to positive law, in
Chapter 3, and in relation to customary law, in Chapter 4. Part III, divided into
Chapters 5, 6 and 7, charts the rise of international law in US air warfare
thinking, how this impacts on the US interpretation of what is a legitimate target
and the extent to which international law is relevant in determining US air
warfare behavior. Part IV comprises Chapters 8 and 9, in which, having concluded that international law is not normatively successful in US air warfare, the author considers the proposition that normative success for international law in war is impossible. Thereafter there is a concluding section in which the strands of the discussion are brought together.

At the end of the introduction to the book, when faced with the suggestion
that widely held normative beliefs imply that, in reality, there are no such things as
legitimate targets in war, the reader will be troubled and highly motivated to dig
deeper into the ensuing analysis. That digging will be amply rewarded.

In a comprehensive tour of the philosophical theory of law as it applies to
international law, the author concludes that “existing scholarship, in law as well as in
IR [international relations], casts considerable doubt on [international law]’s ability
to be … ‘behaviorally relevant’”. Chapter 2 then addresses international law’s behavioral relevance and comes to the conclusion that international law is indeed dependent on interests and shared normative beliefs, while retaining a character that is distinct from each of those factors; it is a “compromise between pre-existing motivational forces and normative codes” and is thus “dependent, but separate”.

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