Necessity in International Law

Erscheinungsjahr 2016
ISBN: 978-0-19-062293-0
Verlag: OXFORD UNIV PR

Buch, Englisch, 294 Seiten, Format (B × H): 161 mm x 240 mm, Gewicht: 608 g

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.

Autoren/Hrsg.

Ohlin, Jens David

May, Larry

Fachgebiete

• Geisteswissenschaften Philosophie Rechtsphilosophie, Rechtsethik
• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsphilosophie, Rechtsethik
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Öffentliches Recht, Völkerrecht, Internationale Organisationen
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Kriegsrecht, Territorialrecht, Humanitäres Recht

Inhaltsverzeichnis

- Acknowledgments

- Introduction

- I. Three Kinds of Necessity: Exception, License, and Constraint

- II. A Roadmap

- III. Normative Prescriptions

- Part A. Necessity and 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 and 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

Über Autor(innen)

Jens David Ohlin is Professor of Law and Associate Dean for Academic Affairs at Cornell Law School. He specializes in international law and criminal law. He specifically focuses on the laws of war with special emphasis on the effects of new technology on the waging of warfare, including unmanned drones in the strategy of targeted killings, cyber-warfare, and the role of non-state actors in armed conflicts. He authored The Assault on International Law (Oxford, 2015).

Larry May is the W. Alton Jones Professor of Philosophy, Professor of Law, and Professor of Political Science at Vanderbilt University. He has published over thirty books, including book length studies of each of the four crimes under the ICC's jurisdiction. These books have won awards in philosophy, law, and international relations. He has also published extensively on the history of the just war tradition, especially on the work of Grotius and Hobbes. He co-authored Proportionality in International Law (with Michael Newton, Oxford, 2014), and Limiting Leviathan: Hobbes on Law and International Affairs (Oxford, 2013).