The Ought/Is Schism: What Good Are International Norms?
Earlier this month, a Médecins Sans Frontières-supported hospital in Yemen was bombed, killing 19 people. This is not the first time a MSF hospital has been attacked. In October 2016, a United States airstrike killed 42 civilians in Kunduz, Afghanistan. Bombing a hospital or bombing other civilian targets such as schools are breaches of international humanitarian law and can be considered war crimes or crimes against humanity.
What has happened to the perpetrators of these bombings?
The bombing of the Kunduz hospital provides a disheartening example. The US Army conducted an inquiry. It determined that the strike was not a war crime since the gunship crew did not realize it was striking a hospital; it was not an “intentional act.”
MSF requested an independent inquiry. “No formal response was given on our request for an independent investigation by the US authorities. Our request is still open, and I guess we will not get it,” said the president of MSF, Meinie Nicolai. “We still have questions on negligence and the list of errors that we’ve heard,” she commented on the report.
The thin line between international norms, in this case international humanitarian norms, and implementation is not simple. The norms are established by consensus, often times resulting in the lowest common denominator. More importantly, the established norms rarely include processes for dealing with violations. And if there are procedures for violations, they are usually presented in educational terms rather than punishment.
There is a slippery slope here. Once norms are established and violations occur, a lack of punishment reduces the level of authority and legitimacy of the norm. When someone violates a norm - such as a soldier wearing a vest with the Red Cross insignia posing as an aid worker in the freeing of Ingrid Betancourt - and goes unpunished, the norm loses its relevance. What ought to be becomes further distanced from what is.
Given the current weakness of multilateral institutions such as the United Nations or European Union, it is not surprising that there has been an erosion of multilateral norms. But that does not mean we should not be outraged by the bombing of hospitals and schools or the acceptance of the killing of civilians during conflicts as merely “collateral damage.”
“Stuff happens” is an infamous quote by Donald Rumsfeld in response to looting in Baghdad in 2003. It was later made into a play of the same name by David Hare. The full quote from Rumsfeld was: "Stuff happens and it’s untidy, and freedom’s untidy, and free people are free to make mistakes and commit crimes and do bad things.”
The fact that freedom is “untidy,” and that “free people are free to make mistakes and commit crimes and do bad things” does not mean we have to accept the consequences of that freedom. Committing crimes and doing “bad things” should be punished. At least, we observers should be outraged by the bombing of hospitals and the killing of innocent civilians. “Stuff happens” is no excuse. Hospitals and schools continue to be attacked; civilian collateral damage continues. And the thin line between ought and is gets even thinner, with the ought becoming more and more distant from events on the ground.