Pragmatism and Principle in International Humanitarian Law

Abstract

As we seek to identify new norms to bridge the gaps between extant law and the challenges that new conflict modes pose today, we confront a threshold question as to which methodological ground we should stand upon in doing so. Based on a background assumption of positivism as the source of substantive norms, the issue for some observers comes down to a clash between pragmatism and formalism. To formalism's proponents, the concept of pragmatism—which sees law as a functional instrument to be used in pursuit of pre-envisioned ends—has contributed to a dearth of moral obligation in international humanitarian law discourse. Such a view considers that the emphasis on empiricism found in pragmatism both legitimizes and shrouds the reality of effective power lurking behind the law. The alternative they prefer, championed most articulately by Professor Koskenniemi, is a “culture of formalism” that sees law as an object of universal obligation and as a form of critique that unmasks the pragmatic mode for what it is, namely, a rationalization of might. As this Article suggests, this understanding misapprehends the true nature of pragmatism, which is neither a smokescreen nor an apoloay. Rather, pragmatism's focus on real-world effects and consequences holds far greater promise for advancing the actual humanitarianism of IHL. Formalism, moreover; is subsumed within the constellation of factors that pragmatic analysis demands. These ideas are explored on a theoretical level, and are then illustrated by a look at the Israel separation barrier cases decided by the International Court of Justice and the Israeli High Court of Justice.