Person:

Blum, Gabriella

Discussions of whether Bush and Clinton administration lawyers have acted ethically have missed a fundamental point about the attorney-client relationship. It is the client - in this case, the government - who is ultimately responsible for making policy decisions, not the attorney. Too often, the question of what is "legal" has been substituted for what should actually be done, especially in the United States, where "legal" and "desirable" have become so intertwined. Governments should consult with attorneys, but should also be prepared to implement whatever policies they believe are "right," and if necessary to explain any departures from what is "legal" to the pubic, to whom they are ultimately accountable.

This paper studies the different roles, impact, and operation of bilateral treaties and multilateral treaties as structures within the architecture of international law. I observe that the preference for bilateralism or multilateralism in international lawmaking is often determined not by an informed choice but by an instinctive association of political schools or bureaucratic affiliations with different forms of international regulation. This association, however, is not always founded on a just appreciation of the workings of either form in various contexts or of the way in which the two interact with each other. I set out to offer a framework for such an appreciation and assess the workings of multilateral treaties and bilateral treaties along three dimensions: the contribution of the respective instruments to the advancement of an international rule of law; the operation of the regime in terms of its effectiveness, efficiency, and compliance; and the democratic legitimacy of the making of each regime. I demonstrate that ideologies and values that seem to be almost blindly associated with one type of regulation may be actually better served, in some cases, by using the other type. Ultimately, this paper attempts to chart a course for more theoretical and empirical forays into the questions of why states join particular types of treaties and how these different types of treaties, or a combination of them, promote or obstruct the attainment of various goals within the architecture of international law.

One of the fundamental principles of international humanitarian law (IHL) is that it recognizes no lesser-evil justification for breaking its rules. Those violating the laws of war will thus be viewed as war criminals even when their conduct was intended to - and in fact did - prevent much greater harm. This Article argues that this deep-rooted absolutist stance undermines the humanitarian drive of the laws of war, and offers, instead, a lesser-evil defense.

The argument begins with the obvious analogy to the necessity defense in domestic criminal law, emphasizing the adaptations that are necessary in order to transpose the domestic concept onto the international plane. It then proceeds to test possible first-order accounts – deontological, consequentialist, and institutional – for why IHL might nonetheless prefer a more absolutist stance than domestic law. It finds that none of these accounts offers a compelling explanation for the exclusion of any lesser-evil justification from IHL.

The Article then proceeds to develop a blueprint for the concept of a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good under certain conditions. A central component of the justification, which is required given the special nature of IHL, is a condition that the greater humanitarian good would benefit the enemy, rather than the actor’s own people.