CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

soldiers.’ 135 Although Gray goes on to describe this ‘strategic fact’ as ‘legally
inconvenient’, in fact reminding ourselves again that asymmetric warfare is, indeed,
warfare, and treating terrorists as enemy combatants may be a useful approach. For it
would allow us to apply the laws of war, to accept more readily the inevitability of
innocent deaths caused by both sides, and allow us to turn for guidance to the just war
principles of discrimination and proportionality tempered by the doctrine of double
effect.
Some commentators 136 have alleged that developments to IHL and Human Rights Law
have placed soldiers under new and undue threat of prosecution or else have made them
reluctant to use their weapons. In fact closer examination than afforded by newspaper
headlines (and which space precludes a diversion into here) shows that changes are
largely in perception and presentation; the UK’s Human Rights and International
Criminal Court Acts, against which most criticism has been directed, are, in fact little
more than re-packaging of existing legislation. There is, in fact, little new in either
Human Rights Law or IHL that places soldiers under any greater threat of legal
culpability than before. Some comment is necessary, though, on the role of RoE.
Bearing in mind the likely (political) need, alluded to above, for greater restriction to
use of force, it should be no surprise that asymmetric conflicts see the application of
especially restrictive RoE. In Chapter 3 (see p211) the importance was argued of
entering into elective conflict only if prepared to expend the necessary resources, which
must be taken to include political capital (at home and abroad). RoE may be seen, in
part, as an expression of political will. They are not themselves a legal pronouncement
but they are both a guide to interpretation of the law and an expression of political
restraint 137 . Such political restraint is right and proper – a political end is being sought
and, in the sort of complex conflicts under discussion here, greater subtlety – and
restraint – may be needed that in classic state-on-state war. Moreover, as UK Attorney
General Lord Goldsmith has said, ‘there is a danger in thinking that the law is all.
Legality is a necessary condition for use of force but not sufficient’. 138 Professor
Lawrence Freedman argues that in part, at least, RoE are an attempt to ease the tension
between the liberal inspiration (humanitarian, rescue, protection of individual rights etc)
298