Legitimacy

2018 ◽  
pp. 223-258
Author(s):  
Thomas E. Ayres ◽  
Jeffrey S. Thurnher
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Critical Factor ◽  
Legal Authority ◽  
Military Operations ◽  
Delicate Balance ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Compliance With The Law

Legitimacy is a critical factor in operations. States strive to maintain legitimacy of their operations for a variety of reasons. The essence of legitimacy on the battlefield is conducting operations in a manner that enables the fighting force to gain and maintain moral and legal authority. Whenever fighting takes place on a cluttered or complex battlespace, legitimacy is brought to the forefront as the potential for civilian harm is often increased. The desire for legitimacy is perhaps the main reason States voluntarily cede sovereignty to comply with international law. Adherence to the law of armed conflict is a necessary and key component of legitimacy. States, as the primary developers and adherents of international law, created the current law of armed conflict construct and are responsible for ensuring its continued viability. States understand that legitimacy and compliance with the law help shape ultimate victory in complex battlespaces. States further recognize that the law of armed conflict only functions properly when there is a delicate balance between the fundamental principles of humanity and military necessity. In recent years, however, States have been subject to attempts from external entities to tilt this balance in favor of humanitarian considerations and to reshape what are considered legitimate actions on complex battlefields. Simultaneously, States have confronted non-State actors that intentionally seek to flout international law and use it to undermine States’ abilities to respond. This chapter examines the importance of legitimacy to States and the reasons States seek to garner it through their military operations.

Military Necessity

2012 ◽  
Author(s):  
David Turns
Keyword(s):  
Armed Conflict ◽  
Armed Forces ◽  
The Other ◽  
Humanitarian Law ◽  
Military Operations ◽  
Military Action ◽  
Total War ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
The Law

Military necessity is one of the most fundamental yet most misunderstood and misrepresented principles of the international law of armed conflict. It has been invoked by military operators to justify any violent measures deemed necessary to win a given conflict, and it has also been dismissed by human rights groups, nongovernmental organizations, and other critics of the armed forces as a typical military excuse to explain away shocking collateral damage in modern military operations. At one extreme it has been distorted by the Clausewitzian approach of Kriegsraison geht vor Kriegsmanier (roughly, necessity in war overrides the way of fighting a war) into a doctrine that jettisons all restraints on military action in war; thus, at one end of the spectrum of interpretation, it may be seen as a doctrinal justification for the notion of “total war.” However, the modern law of armed conflict, with its strongly humanitarian emphasis, requires careful distinction between military and civilian targets; it is based on a subtle and often-elusive nonarithmetical equation that seeks to balance the military advantage anticipated from a given operation against the likely civilian casualties or damage to civilian objects. If proportionality is the fulcrum of that equation and humanity is one side of the balance, then military necessity is the other. Fundamentally and in its broadest interpretation, military necessity means that armed forces can do whatever is necessary—provided always that it is not otherwise unlawful under humanitarian law—to achieve their legitimate military objectives in warfare. For example, enemy armed forces that have not surrendered or are not hors de combat are always legitimate military targets in themselves and may therefore lawfully be attacked at any time and in any place, irrespective of where they are located or what they are actually doing. A more restrictive approach to the doctrine, however, interprets it as always placing limitations on military action, in the sense that no such action may be undertaken (regardless of its legality otherwise under the law of armed conflict) unless it is actually necessary in military terms. An example would be an invading force deciding not to attack certain enemy military formations that do not impede its attack or would represent a diversion from its main objectives. It should be emphasized that the legal notion of military necessity is not the same as “military advantage” (which is a factual descriptor of the outcome upon which actions are predicated). In sum, “military necessity” is best defined as the requirement, in any given set of circumstances, for the application of armed force (in accordance with the other rules of the law of armed conflict) to achieve legitimate military objectives.

scholarly journals Military necessity in Geneva conventions of 1949

2012 ◽  
Vol 64 (2) ◽  
pp. 180-201
Author(s):  
Vladan Joncic ◽  
Milos Petrovic
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
General Rule ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
The Right ◽  
International Conventions ◽  
The Military

The fundamental question of international law of armed conflict is the question of military necessity principle in international law of armed conflict, ie. in international humanitarian law. Hearings on this issue is necessary because it is still the danger that the principle of recognition of the needs of military regulations and deceive the application of international law of armed conflict. That?s why the military needs to be seen as a permitted deviation from compliance with rules of war. Extreme, this concept has led to the emergence of the theory of the military. Its radical variant of the proceeds from the Maxims of German classical scholars of international law. The result of theoretical assumptions had the effect of limiting the acceptance of military necessity of the first codification of the day. The four Geneva Conventions of 1949. The heavily consider the military. In all the texts of international conventions is determined by military necessity, as a circumstance or set of circumstances which affect the duty of obeying the regulations of international law. In international law there is no general rule of military necessity as a basis or reason for justified violations of rules of international law of armed conflict. The rules of international law represent a compromise between the desire for a decoration rules of warfare and the need to ensure all the necessary tools that can lead to victory. The four Geneva Conventions of 1949. the military need to provide in terms of the principles of humanity. Set rules on military necessity in the Geneva Conventions give the right correction factor in the role of the law of armed conflict. The Geneva Conventions there is a degree of confusion in terminology, where the concept of military necessity needlessly allocated a number of synonyms. This is because the international law of armed conflict and emerged as a normative regulation of proportionality between the military needs) and general principles and humane principles.

The Legal Interoperability of the Laws of Armed Conflict

2019 ◽  
pp. 70-88
Author(s):  
Michael Newton
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Centripetal Force ◽  
Military Operations ◽  
Law Of Armed Conflict ◽  
State Practice ◽  
Pragmatic Aspects ◽  
Shared Norms

The chapter considers some of the pragmatic aspects of engaging in multinational military operations in relation to cooperation among the various participating states. These aspects include differing treaty obligations, diverging interpretations of shared norms, or different command structures. Coalition partners deployed to pursue such larger goals must manage operational friction in order to achieve the necessary cohesion. State practice demonstrates discrepancies between partners over what international law obligations apply to forces in the field, which in turn produces disagreements about the conditions those duties entail. At the same time, the modern law of armed conflict provides a sort of centripetal force providing essential cohesion to modern multinational coalitions. It provides normative regularity constraining the class of persons against whom violence may be lawfully applied.

14. The law of armed conflict

2019 ◽  
pp. 279-302
Author(s):  
Anders Henriksen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Military Operations ◽  
Basic Principles ◽  
Law Of Armed Conflict ◽  
The Relationship

This chapter examines those parts of international law that regulate how military operations must be conducted—jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies and Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 concerns belligerent occupation and Section 14.7. deals with the regulation of non-international armed conflict. Finally, Section 14.8 explores the relationship between international humanitarian law and human rights law in times of armed conflict.

14. The law of armed conflict

2017 ◽  
Author(s):  
Anders Henriksen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Military Operations ◽  
Basic Principles ◽  
Law Of Armed Conflict ◽  
The Relationship

This chapter examines those parts of international law that regulate how military operations must be conducted — jus in bello. It begins in Section 14.2 with an overview of the most important legal sources. Section 14.3 discusses when humanitarian law applies. Section 14.4 examines the issue of battlefield status and the distinction between combatants and civilians. Section 14.5 provides an overview of some of the most basic principles governing the conduct of hostilities while Section 14.6 deals with the issue of regulation of non-international armed conflict. Finally, Section 14.7 explores the relationship between international humanitarian law and human rights law in times of armed conflict.

Pillars not Principles: The Status of Humanity and Military Necessity in the Law of Armed Conflict

2020 ◽  
Vol 25 (1) ◽  
pp. 1-31
Author(s):  
Elliot Winter
Keyword(s):  
First Principles ◽  
Armed Conflict ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
The Status ◽  
The Law

Abstract Humanity and military necessity are often said to be ‘principles’ of the law of armed conflict (LOAC). However, for Dworkin, a concept must satisfy certain criteria in order to earn the status of a principle. First, principles carry different weightings to each other so that one may triumph in the event of a clash. Secondly, principles are capable of superseding positive rules so that coherence in the regime over which they preside is maintained. This article contends that neither criterion is satisfied by humanity or military necessity. Consequently, it argues that these concepts are not truly principles and that, instead, they are better viewed as ‘pillars’ of the LOAC.

The Taliban Layeha for Mujahidin and the Law of Armed Conflict

2012 ◽  
Vol 3 (1) ◽  
pp. 192-229 ◽  
Author(s):  
Niaz A. Shah
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Short History ◽  
Law Of Armed Conflict ◽  
History Of ◽  
The Law ◽  
International Character ◽  
Better Than

In 2010 the Taliban issued a third edition of their Layeha. The Layeha contains Rules and Regulations of Jihad for Mujahidin. This article first details the short history of the Layeha published by the Taliban. Subsequently its content is analysed and compared with the international law of armed conflict that applies in conflicts of an international and non-international character. The author demonstrates that, whilst some rules are incompatible or ambiguous, most rules of the Layeha are compatible with the international law of armed conflict. Compliance with the rules that are compatible could help to achieve the objectives of the law of armed conflict: to minimise unnecessary suffering in armed conflict. The author submits that considering that the Taliban are engaged in fighting in Afghanistan and that they have control of or influence in parts Afghanistan, it is encouraging that they have produced such a self-imposed code. Any minimum restraint, whether self-imposed or imposed by municipal or international law, is better than no restraint at all.

1 Introduction

2016 ◽  
Author(s):  
Boothby William H
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
Important Distinction ◽  
Legal Rules ◽  
Arms Trade ◽  
Law Of Armed Conflict ◽  
The Law

This relatively brief chapter introduces the book as a whole. It positions weapons law within the framework of international law in general, and of the law of armed conflict in particular, noting the important distinctions between international and non-international armed conflicts, and between the law on the resort to the use of force and that which regulates the conduct of hostilities. The logical flow of the book is presented, and certain terms that are vital to the ensuing discussion, namely weapons, means of warfare and methods of warfare are explained. The all-important distinction between weapons law and the legal rules that regulate targeting is noted. A concluding section addresses the recently-adopted Arms Trade Treaty.

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