Full Description
Necessity is a notoriously dangerous and slippery concept-dangerous because it contemplates virtually unrestrained killing in warfare and slippery when used in conflicting ways in different areas of international law. Jens David Ohlin and Larry May untangle these confusing strands and perform a descriptive mapping of the ways that necessity operates in legal and philosophical arguments in jus ad bellum, jus in bello, human rights, and criminal law. Although the term "necessity" is ever-present in discussions regarding the law and ethics of killing, its meaning changes subtly depending on the context. It is sometimes an exception, at other times a constraint on government action, and most frequently a broad license in war that countenances the wholesale killing of enemy soldiers in battle. Is this legal status quo in war morally acceptable? Ohlin and May offer a normative and philosophical critique of international law's prevailing notion of jus in bello necessity and suggest ways that killing in warfare could be made more humane-not just against civilians but soldiers as well. Along the way, the authors apply their analysis to modern asymmetric conflicts with non-state actors and the military techniques most likely to be used against them. Presenting a rich tapestry of arguments from both contemporary and historical Just War theory, Necessity in International Law is the first full-length study of necessity as a legal and philosophical concept in international affairs.
Contents
Acknowledgments
Introduction
I. Three Kinds of Necessity: Exception, License, and Constraint
II. A Roadmap
III. Normative Prescriptions
Part A. Necessity & Jus Ad Bellum
Ch. 1. Necessity and the Principle of Last Resort in Just War Theory
I. Defining Aggression in the Just War Tradition
II. Gentili and the Justification of Offensive War
III. Grotius on Fear of Attack
IV. The Grotian Principles of Last Resort and Ad Bellum Necessity
V. Last Resort as the Ultimate Restraint
VI. Equally Efficacious Means
Ch. 2. Necessity and the Use of Force in International Law
I. Necessity and Customary Treaty Law
II. Necessity in Investor-State Relations
III. Necessity in Jus ad Bellum Violations
IV. Necessity as a Component of Self-Defense
V. Conclusion
Part B. Necessity & Jus in Bello
Ch. 3. Necessity and Discrimination in Just War Theory
I. Necessity and Discrimination in Early Modern Just War Theory
II. Necessity and Humane Treatment
III. Luck and Necessity
IV. Military Necessity as a Form of Practical Necessity
V. Relating Jus In Bello Proportionality and Necessity
Ch. 4. The Foundations of Necessity in IHL
I. The ICRC and Necessity
II. Lieber's Conception of Necessity
III. Necessity in the Nuremberg Tribunals
IV. What's Right and What's Wrong with Lieber's Necessity
V. Conclusion
Ch. 5. Necessity in Human Rights Law and IHL
I. Human Rights Necessity
II. Combining Human Rights Necessity with IHL Necessity
III. Conclusions
Ch. 6. Necessity in Criminal Law
I. Necessity in Domestic Criminal Law
I. No Constraints on the Necessity Defense
III. Ad Hoc Constraints
IV. Principled Constraints
V. Conclusion
Ch. 7. Striking a Balance Between Humanity and Necessity
I. Humanity
II. Humanitarianism and Human Dignity
III. Humane Treatment
IV. Dignity and Vulnerability
V. Humanitarian Rights
VI. Concluding Thoughts on the Principles of Humanity and Necessity
Part C. Applying Necessity to Contemporary Conflicts
Ch. 8. Combatants and Civilians in Asymmetric Wars
I. Pirates and Insurgents at War
II. Grotius on Non-State Actors in War
III. Jus Ad Bellum Issues
IV. Jus In Bello Issues
V. Civil Wars and Civilians
Ch. 9. Disabling vs. Killing in War
I. Specific Prohibitions versus General Duties
II. The Hors de Combat Argument
III. Least Harmful Means Test at the Geneva Negotiations
IV. Should Jus in Bello Require Disabling before Killing?
VI. Necessity and Killing Fleeing Soldiers
Ch. 10. The Duty to Capture
I. Is Capture Required by Jus in Bello Necessity?
II. Are Different Rules for Civilians and Combatants Morally Legitimate?
III. Capture as a Requirement of Constitutional Necessity
IV. The Moral Arguments for a Duty to Capture
Ch. 11. Force Protection
I. Understanding Force Protection
II. Jus ad Bellum Necessity and Force Protection
III. Jus in Bello Necessity and Force Protection
IV. The Hannibal Procedure
V. Reasonable Force Protection
Conclusion
Index
