The international law rules that regulate the conduct of hostilities in warfare – the “law of targeting” – are generally characterised as balancing military necessity and humanity. In his PhD thesis, Abhimanyu George Jain explores what it means to balance two ideas that are so radically different, and how the law of targeting achieves this. His conclusion is that the law of targeting does not actually balance military necessity and humanity, that humanity is merely a fig leaf that facilitates and legitimises the pursuit of military necessity.
How did you choose your research topic?
As I delved into debates and controversies in the law of targeting, I became conscious of the ubiquity of the idea that the law of targeting balances military necessity and humanity. Despite this ubiquity, I found very little analysis of what this balance meant or how it was achieved. It seemed to me that understanding this balance was necessary to any broader engagement with the law of targeting, and so I decided to make that the focus of my research.
Can you describe your thesis questions and methodology?
My thesis tries to explain how the law of targeting balances military necessity and humanity. It starts from the premise that law does not exist “out there”, but that it is created in political processes of interpretation and implementation. As such, the concepts of military necessity and humanity do not possess stable or determinate content, they acquire meaning through use in specific contexts. Consequently, instead of defining military necessity and humanity and inductively assessing their balancing, I look at how they are used and what effects they produce in the law of targeting. To this end, I analyse argumentative practices and possibilities that are commonly used in interpretive debates in the law of targeting, highlighting the role of military necessity and humanity in sustaining these practices and possibilities.
What are your major findings?
My key conclusion is that the law of targeting does not actually balance military necessity and humanity. The metaphor of balance mischaracterises the reality of the law of targeting. In fact, humanity is systematically subordinated to military necessity and is merely a fig leaf that facilitates and legitimises the pursuit of military necessity.
My thesis uncovers unrecognised roles that military necessity plays in the law of targeting: it operates as an epistemic privilege that allows military practice to limit the possibilities of humanity; and it acts as an agent of legal change to allow military preferences to erode existing concessions to the interests of humanity. Against these unrecognised roles of military necessity in the law of targeting, I find unacknowledged limitations upon the possibilities of humanity: the armed soldier is systematically privileged over the helpless civilian; and the interpretation of legal rules is driven by the maximisation of military efficacy rather than humanitarian protection. I trace these limitations to a conceptualisation of humanity that relies on the charity of the wagers of war rather than on the rights of the victims of war.
Drawing on these unrecognised roles of military necessity and unacknowledged limitations upon humanity, I argue that the humanitarian protections of the law of targeting are not constraints upon military necessity. Instead, they are better characterised as concessions made by military necessity to facilitate and legitimise the pursuit of military necessity. And so, I argue, humanity is merely a fig leaf in the law of targeting.
What are the implications of your thesis for the law of targeting?
The key implication of my thesis is that the shortcomings of the law of targeting are not external to the law, they are built into its structures. The problem is not, as is often suggested, that states are unwilling to accept stricter rules or that existing rules are inadequately enforced. The problem is the underlying approach to the regulation of the battlefield.
The law of targeting recognises that the efficacy of its rules depends on their acceptability to states, i.e., the law of targeting must be mindful of military practicability. This is understandable, but military practicability has eclipsed other concerns that should also be relevant to the law of targeting, such as the interests of humanity. It is this fetishization of military practicability that produces the shortcomings of the law of targeting. Within this approach to the regulation of the battlefield, new rules and enforcement mechanisms cannot provide amelioration, because they will also be distorted by concerns of military practicability.
This raises the awkward question of how, if at all, we can salvage the project of regulating the battlefield. The key, in my opinion, is an approach to the regulation of the battlefield that does not pre-emptively censor itself by reference to the requirements of military practicability, and that aggressively asserts the interests of humanity.
If this seems naïve, that is because we assume the priority of military necessity over humanity. To say that humanity cannot trump military necessity (which is implicit in the existence of warfare) does not mean (as the practice of the law of targeting seems to assume) that military necessity can trump humanity. If protecting humanity requires deference to military practicability, it is equally true that the pursuit of military necessity requires deference to the concerns of humanity. Deference to the interests of humanity legitimates and facilitates the pursuit of military necessity – in effect, military necessity relies on humanity’s endorsement. This reliance can be exploited to create space for a more aggressive and radical espousal of the interests of humanity. On this basis, a more equal, more balanced relationship between military necessity and humanity may become possible.
What are you doing now?
I am now working as a legal adviser at the International Committee of the Red Cross (ICRC), where I am a member of the team that is revising the ICRC commentaries to the Geneva Conventions and their Additional Protocols. (I should add that I completed my thesis before starting this position and my conclusions do not necessarily reflect the positions of the ICRC.) I have also received a two-year postdoctoral grant from the Swiss National Science Foundation (which I have deferred), to pursue an independent research project on how international law uses dates to shape time.
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Abhimanyu George Jain defended his PhD thesis in International Law in May 2023. Professor Paola Gaeta presided over the committee, which included Professor Andrew Clapham, Thesis Director, and Professor Frédéric Mégret, Law Faculty, McGill University, Canada.
The thesis is embargoed until July 2026. For access, readers can contact the author at abhimanyugeorgejain@gmail.com.
Citation of the PhD thesis:
George Jain, Abhimanyu. “Fig Leaf: A Critical Analysis of the Balancing of Military Necessity and Humanity in the Law of Targeting.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2023.
Banner image: part of Saturn Devouring His Son by Francisco Goya, Public Domain, via Wikimedia Commons.
Interview by Nathalie Tanner, Research Office.