Defending Humanity: When Force Is Justified and Why

Defending Humanity: When Force Is Justified and Why

Defending Humanity: When Force Is Justified and Why

Defending Humanity: When Force Is Justified and Why

Synopsis

In Defending Humanity, internationally acclaimed legal scholars George P. Fletcher and Jens David Ohlin tackle one of the most important and controversial questions of our time: When is war justified? When a nation is attacked, few would deny that it has the right to respond with force. But what about preemptive and preventive wars, or crossing another state's border to stop genocide? Was Israel justified in initiating the Six Day War, and was NATO's intervention in Kosovo legal? Whatabout the U.S. invasion of Iraq? In their provocative new book, Fletcher and Ohlin offer a groundbreaking theory on the legality of war with clear guidelines for evaluating these interventions. The authors argue that much of the confusion on the subject stems from a persistent misunderstanding of the United Nations Charter. The Charter appears to be very clear on the use of military force: it is only allowed when authorized by the Security Council or in self-defense. Unfortunately, this has led to the problem of justifying force when the Security Council refuses to act or when self-defense is thought not to apply--and to the difficult dilemma of declaring such interventions illegal or ignoring the U.N. Charter altogether. Fletcher and Ohlin suggest that the answer lies in going back to the domestic criminal law concepts upon which the U.N. Charter was originally based, in particular, the concept of "legitimate defense," which encompasses not only self-defense but defense of others. Lost in the English-language version of the Charter but a vital part of the French and other non-English versions, the concept of legitimate defense will enable political leaders, courts, and scholars to see the solid basis under international law for states to intervene with force--not just to protect themselves against an imminent attack but also to defend other national groups.

Excerpt

Since the U.S. invasion of Iraq in 2003, we have had good reason to worry about the future of the doctrine of international law prohibiting aggression except in cases of self-defense. It is not likely that an international court will prosecute members of the Bush administration for engaging in an aggressive war, and therefore it is critical that at least the literature of international law affirm the basic principles of mutual respect among nations. If those principles tolerate the use of force without Security Council authorization only in cases of self-defense, as Article 51 of the United Nations Charter tells us, then we need to probe the foundations of military self-defense more deeply than the literature of the past has done.

Two features of this book are novel. First, we draw on the analogy between self-defense in domestic law and in international law. An individual’s being attacked at home or on the street bears a strong resemblance to a nation’s being subject to foreign aggression. The difference is that we have centuries of legal experience analyzing self-defense in homicide cases and much less case law on the contours of international self-defense. To enrich the latter, it makes good sense to probe the theory of self-defense in domestic law—subject always to the condition that we recognize possible differences between individual and national aggression.

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