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.
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About the Author
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).
Table of ContentsAcknowledgments 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