More On Things That Go Boom

Stephanie Carvin has a long follow-up to my critique of her earlier explosive weapons essay at Duck of Minerva. She provides a lot of interesting history and legal analysis, but never really elaborates on the one point in the post that directly addresses my defense of the explosive weapons campaign:

With regards to blast weapons, it is clear that the authors of Landmine Action’s report want a de facto ban because of the effects that the weapons cause – albeit both intended and non-intended effects. But by focusing on the effects of the civilians, it is clear that an effects-based rather than intention-based rational is at play here – and I think serious questions can be raised regarding this strategy.

What serious questions? Is such a strategy ineffective? Does it lead to suboptimal outcomes? Weak norms? The banning of weapons that in humanitarian terms are actually superior to the alternatives? The only argument against the effects-based approach versus the intent-based approach appears to be Stephanie’s claim that there’s a mismatch between the advocates’ moral claims and the earlier structure of international law. But:

A) Even if true, I don’t see how that invalidates the strategy. What activists may be trying to do is to reconstitute legal understandings. Whether or not the strategy will work in this case or lead to an improvement if it works may be open for debate, but there’s certainly nothing a priori wrong with the strategy of reconstituting legal understandings – that’s the entire point of international norm entrepreneurship. Activism of that type has been the impetus for most of the humanitarian law in the first place: it was activists who first argued that war-wounded shouldn’t be left to die on the battlefield or that the mass slaughter of a states’ citizenry should be considered a crime.

B) For what it’s worth, I don’t actually agree that the legal prohibitions on weapons have always been based on intent rather than effects. The laws of war prohibit weapons designed to cause unnecessary suffering (like flattening bullets) and weapons which “have indiscriminate effects” (like biological or chemical weapons whose effects cannot be controlled once they are deployed).

In terms of advocacy campaigns, I have observed that “technologies of violence” advocates tend to gravitate toward either one or the other of these arguments, and each work pretty well. The difference is that only intent-based claims can be made pre-emptively. This is why the landmines campaign only took off after sufficient documentation of the effects of the weapon rendered discussions of their intent less relevant. Blinding lasers were banned before their effects became apparent based on the intent to commit superfluous injury. (It’s why things like killer robots autonomous weapons, however uncontrollable they may be in theory, will probably not be regulated, as various norm entrepreneurs suggest, until the bodies really start piling up – because whatever the actual effects, those who design and deploy these weapons actually mean to kill fewer civilians.)

So it seems that both claims – intent and effect – have a relevance to the structure of international law, and both have political purchase under different conditions. I’m not sure what Stephanie’s argument is to the contrary, but I hope she elaborates.