Taking Soldiers' Intuitions of Justice Seriously: Mobilizing Criminal Law's Empirical Insights to Rethink International Humanitarian Law Compliance, Interpretation, and Reform
If soldiers intuit that the laws of war are unjust—should the international legal system care? Contemporary international humanitarian law (IHL) does not. This dissertation argues it should.
To explain why soldiers’ “intuitions of justice” matter, this dissertation first identifies a puzzling disconnect between IHL and criminal law theory. Although inadequate compliance is a major and persistent challenge to IHL, the many scholarly and practical efforts to resolve this “compliance crisis” have overlooked decades of pertinent empirical research and social-science-grounded findings on compliance attained by criminal law’s Empirical Desert Theory (EDT). Essentially, EDT establishes that laymen compliance with criminal law depends on whether its rules and their intuitions of justice align. If laymen intuit that these rules are just, the system is perceived as “morally credible” and harnesses powerful social dynamics that increase compliance. If not, the system’s moral credibility declines and the social dynamics’ operation reverses, decreasing compliance.
A fundamental argument this dissertation advances is that the sophisticated insights of EDT on laymen compliance with criminal law are highly germane for soldiers’ compliance with IHL. Ostensibly, however, EDT is hampered by serious limitations. Chief among them: EDT draws from community intuitions, which may involve immoral considerations. In addition to these “immorality objections,” criminal law scholars raised other normatively-oriented criticisms of EDT. Yet, Part 1 of this dissertation demonstrates that by virtue of previously underappreciated methodological features, EDT, as it presently stands, is nearly immune to these objections and criticisms. Moreover, Part 1 proposes an innovative reconceptualization of EDT by incorporating into its scientific methodology (and purely utilitarian stance) a minimalistic normative commitment to equality and non-discrimination. This reconceptualization enables EDT to de-bias (and not draw on) intuitions inconsistent with its normative commitment, further safeguarding it from immorality objections and other criticisms.
Having addressed these ostensible limitations of EDT in Part 1, Part 2 of the dissertation ties together EDT’s findings on compliance, military-specific research in social science and law, and empirical evidence on soldiers’ attitudes and behavior, and presents a novel perspective. It demonstrates that the potential for misalignment between the law and intuitions of justice is greater in IHL than in domestic criminal law, this misalignment’s negative impact on compliance is stronger, and its implications are graver. The reasons, in brief, are: a) increased reliance on intuitions on the battlefield by soldiers; b) greater reliance on peers and stronger influence of social dynamics (e.g., vigilantism and stigmatization) within the military community; and c) fundamental differences between criminal law’s restrained regulation of marginal laymen conduct and IHL’s intensive regulation of soldiers’ core professional activities. Furthermore, Part 2 provides extensive empirical evidence suggesting that there is, indeed, a longstanding and substantial misalignment between soldiers’ intuitions of justice and IHL, and that IHL’s compliance crisis is undergirded by a moral credibility crisis. Crucially, this original perspective opens new avenues to tackle the symptoms of inadequate IHL compliance by focusing on its moral credibility roots.
To show how one can explore such avenues in the context of pressing IHL dilemmas, Part 2 constructs an innovative framework for assessing and operationalizing soldiers’ intuitions of justice (SIJ). It argues that it is vital to consider whether IHL's principles and rules align with soldiers’ intuitions of justice and shows how SIJ framework can provide detailed predictions on soldiers’ non-compliant conduct in cases of misalignment. Additionally, it highlights the opportunities such predictions present to enhance IHL compliance by identifying specific areas of concern and providing tailored recommendations on changes in training, personnel supervision, and use of technology.
Abstracting from details, this dissertation’s key value is in developing the pivotal concept of soldiers’ intuitions of justice and elucidating its broader, transformative implications for IHL. By uncovering and illuminating this phenomenon it introduces into IHL an entirely new organizing concept. The concept of soldiers’ intuitions of justice, once seen, proves to be strikingly ubiquitous; more importantly, it sheds new light on IHL’s most fundamental challenges including not only compliance, but also the interpretation and reform of its rules, and offers fresh ways of thinking about these challenges that could stimulate a profound shift in contemporary IHL.
Rudyak, Ilya, "Taking Soldiers' Intuitions of Justice Seriously: Mobilizing Criminal Law's Empirical Insights to Rethink International Humanitarian Law Compliance, Interpretation, and Reform" (2023). SJD Dissertations. 7.
380 pages in length. Electronic access to this document is restricted to the University of Pennsylvania campus.