Can Wars Be Fought Justly? The Necessity Condition Put to the Test

2011 ◽  
Vol 8 (3) ◽  
pp. 435-451 ◽  
Author(s):  
Daniel Statman
Keyword(s):  
Jus In Bello ◽  
Self Defense ◽  
Collective Self ◽  
Individual Self ◽  
Widespread View

AbstractAccording to a widespread view, the same constraints that limit the use of otherwise immoral measures in individual self-defense apply to collective self-defense too. I try to show that this view has radical implications at the level of jus in bello, implications which have not been fully appreciated. In particular, if the necessity condition must be satisfied in all cases of killing in war, then most fighting would turn out to be unjust. One way to avoid this result is to adopt a contractualist view of killing in war, a view which interprets the necessity condition in a way that is more permissive with regard to killing combatants in war. At least in this respect, a contractualist view of killing in war has an advantage over other candidates in explaining how wars might be fought justly.

Decisions in Japan to use Military Force or Participate in Multinational Peacekeeping Operations

2019 ◽  
pp. 827-842
Author(s):  
Tadashi Mori
Keyword(s):  
World War Ii ◽  
Armed Forces ◽  
Military Force ◽  
Peacekeeping Operations ◽  
Existential Crisis ◽  
Self Defense ◽  
Article 9 ◽  
Collective Self ◽  
Japanese Law ◽  
Individual Self

This chapter describes the law in Japan governing the country’s use of military force and participation in multinational peacekeeping operations. Although Article 9 of Japan’s post–World War II constitution seems to disallow the development of armed forces, the country has long maintained limited armed forces for purposes of self-defense. According to the Japanese government’s traditional constitutional interpretation, these forces can only be used when necessary to repel an armed attack on Japan. Under this interpretation, Japan can use armed force only for individual self-defense, not for collective self-defense or collective security. In addition, although Japanese law since the 1990s has allowed for some participation of Japanese forces in multinational peacekeeping operations, this allowance has been very limited. In 2015, however, Japan enacted two important statutes that broaden the government’s ability to use the country’s armed forces. One statute allows the country for the first time to exercise a right of collective self-defense, although the legislation only permits Japan to exercise this right for the purpose of ensuring its survival and protecting its people in situations that are called “existential crisis situations.” The other statute broadens the ability of Japanese forces to engage in various support activities in multinational peacekeeping operations. Because of Article 9 of the Constitution, however, Japan’s ability to use its military is still substantially more limited than for many other countries.

The Essential Link between Proportionality and Necessity in the Exercise of Self-Defense

2020 ◽  
pp. 79-112
Author(s):  
Geoffrey S. Corn
Keyword(s):  
Use Of Force ◽  
Military Operations ◽  
Jus In Bello ◽  
Military Action ◽  
Jus Ad Bellum ◽  
Self Defense ◽  
Self Help ◽  
Equal Importance ◽  
Collective Self ◽  
The Impact

The lawful use of force in the exercise of individual or collective self-defense by states requires compliance with the universally recognized elements of necessity and proportionality. Both of these elements frame the justification of resorting to self-help action. These two elements of self-defense, while often treated as distinct requirements, may be better understood as integrated into the assessment of overall strategic justification, with proportionality defining whether the scope and duration of military action in self-defense is genuinely necessary to protect against the unlawful threat. Thus, there is logic in conceptualizing proportionality not as distinct from the necessity requirement but as an integral component of that requirement. Linking proportionality assessments to the necessity of acting in self-defense leads to a rational link between the threat requiring self-defense action and the strategic scope and duration of operations to protect against that unlawful threat. This will contribute to careful tailoring of self-defense military operations to the overall nature of that threat. Of equal importance, this strategic-oriented focus will ideally offset the temptation to judge jus ad bellum proportionality by applying jus in bello principles. If nothing else, greater emphasis on the important differences between these two variants of the international legal proportionality requirement will enhance the impact on each of these variants on the success and legitimacy of self-defense operations.

scholarly journals Biden Administration Relies on Constitutional Authority and Unwilling or Unable Theory of Self-Defense for Airstrikes in Syria

2021 ◽  
Vol 115 (3) ◽  
pp. 567-572
Keyword(s):  
United States ◽  
The United States ◽  
Military Force ◽  
Legal Authority ◽  
Military Policy ◽  
Presidential Approval ◽  
War Powers ◽  
Self Defense ◽  
Drone Strikes ◽  
Individual Self

On February 25, 2021, the United States conducted a strike targeting Iranian-backed militia group facilities in Syria. The strike, which came in response to a February 15, 2021 attack on U.S. interests in Iraq, marked the Biden administration's first known exercise of executive war powers. As domestic authority for the strike, President Joseph Biden, Jr. cited his authority under Article II of the U.S. Constitution and did not rely on the 2001 or 2002 Authorizations for the Use of Military Force (AUMFs). For international legal authority, Biden relied on individual self-defense under Article 51 of the UN Charter, stating that Syria was “unwilling or unable” to prevent further attacks on the United States by these non-state actors within its territory. The strikes garnered mixed reactions from Congress, where efforts are underway to repeal or reform extant AUMFs as well as the War Powers Resolution (WPR). The Biden administration is also undertaking a review of current U.S. military policy on the use of force, and during this process, it has prohibited drone strikes outside of conventional battlefields, absent presidential approval.

Sequences of Military Necessity for the Jus in Bello

2020 ◽  
pp. 247-284
Author(s):  
Dino Kritsiotis
Keyword(s):  
Hague Convention ◽  
Humanitarian Law ◽  
War And Peace ◽  
International Court Of Justice ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Additional Protocol ◽  
Self Defense ◽  
Military Necessity ◽  
International Court

This chapter considers several discrete snapshots or “sequences” in the life of military necessity—as it has come to be understood within the laws of the jus in bello. Commencing with its relationship with self-preservation under the laws of war and peace, the chapter proceeds to examine the idea of “necessity” of self-defense within the laws of the jus ad bellum; it then turns to “military necessity” as invoked in the Lieber Code, the 1907 Hague Regulations, Additional Protocol I of 1977 and the 1954 Hague Convention, the ICRC Study on Customary International Humanitarian Law as well as the advisory jurisprudence of the International Court of Justice. Consideration is given, too, to “necessity” as it features within the law of State responsibility, in order to more fully understand the function, status and standing of “military necessity” more generally within the jus in bello.

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