War, Law, and Narrative: A Facilitation of Permissive Legal Interpretation

International law (IL) allows states to use force in self-defence (and as authorised by the UN Security Council). This right is enshrined in Article 51 of the UN Charter, but requires that force is proportional to the threat defended against. International Humanitarian Law (IHL), regulating the conduct of force, has as a stated purpose to protect individuals against the impact of violence (Pictet, 1951). To this end, it requires that violence is proportional to military objectives, that no unnecessary suffering is imposed, and distinctions are made between civilians and combatants. These two bodies of law - self-defence and IHL - should restrict a state's ability to conduct violence in their international relations. However, when the UN General Assembly turned to the International Court of Justice (ICJ) to seek an opinion on the legality of the use of nuclear weapons in 1996, the ICJ concluded that it was possible that an extreme necessity of self-defence might arise where the use of nuclear weapons would be legal. Proportionality under both bodies of law should ensure that only the minimal violence necessary to achieve a state's legitimate military objective should be used, therefore individuals should be protected against extreme violence. However, in this case, the law was read by judges to potentially sanction the use of nuclear weapons, which would cause extreme suffering and mass killing. How such an interpretation of IL is possible, is the question guiding this proposed project.

My research question is: how does international law pertaining to force expose individuals to violence? I will answer this through a focus on the role of narratives in shaping law's meaning. In the ICJ case, the lack of a definitive legal answer was due to the fact that the Court was asked to make an abstract judgement, not to interpret law for a specific case. Hence, it was tasked with interpreting law without a narrative to facilitate interpretation. Regarding the law of self-defence, the Court determined that if the threat faced by a state was grave, law could sanction the use of nuclear weapons. Regarding IHL, the Court again determined, that the military objective would determine the intensity of violence permitted. Hence, if the threat defended against was grave - e.g. a state's annihilation - then the extreme violence that nuclear weapons would impose, would be legally sanctioned. But whether there is a grave threat, is a matter of an interpretation of facts: this is a narrative (Wibben, 2010). This suggests, as Cover (1989) tells us, that no law even exists without a narrative to give it meaning. Therefore, to understand how IL is interpreted to justify violence, I will interrogate the role of narratives in extracting permissive legal interpretations.

There are two strands to my approach. First I will interrogate the narratives which root the law. The laws regulating force were crafted to deal with the challenges in the world as envisaged by the drafters. This world is an interpretation of reality, a narrative. Therefore, these laws - constructed for this world - have an underlying logic. Understanding this will tell us what permissions are inherent in this law. Then, I will interrogate how the narratives for which law is read allow states to draw permissive interpretations. IL requires a narrative to facilitate interpretation. I will examine instances where IL is interpreted permissively, and in these cases I will seek to understand the role of narratives in extracting permissive interpretations. This will tell us how far narratives constructed outside the law enable violence within the law. A narrative approach to understanding law is developed by Robert Cover in Nomos and Narrative (1983). Although Cover's analysis is directed at national law, his call to understand that '[no law] exists apart from the narratives that locate it and give it meaning' (Cover, 1983, p.4) can be applied to international law.