Academic journal article Australian International Law Journal

Jens David Ohlin and Larry May: Necessity in International Law

Academic journal article Australian International Law Journal

Jens David Ohlin and Larry May: Necessity in International Law

Article excerpt

Jens David Ohlin and Larry May

Necessity in International Law

(Oxford University Press, 2016) ISBN 978-0-19-062293-0,276 pages.

War is a forced contest of violence between belligerents. Destructive power ought to be unleashed only when truly necessary. This book contends that war could be rendered more humane, for combatants and civilians alike, by codifying a slightly more restrictive understanding of the principle of necessity (p 276).

In their introduction, the authors consider that the concept of necessity "is often the key element that drives the outcome of the analysis", whether it be with respect to individual self-defence under national criminal law, national self-defence under international law or killing during armed conflict (p 1). Necessity "is not a one-size-fits-all concept" (p 273). The authors begin by conceptualising three distinct senses of necessity: as an excuse or exception to an otherwise binding obligation or pre-existing rule (the "dangerous version of necessity"); as a licence to engage in certain conduct that is otherwise consistent with generally applicable laws because such action is part of a broader role; and finally as a constraint on government action that blocks activity. Accordingly, military necessity is a licence under international humanitarian law, international and national criminal law seek to confine the exception version of necessity, and the concept of necessity is at its most constrained under international human rights law.

The authors commence with general principles to articulate how necessity works in the jus ad bellum and jus in bello. They then apply those general lessons to specific controversies regarding the appropriate rules for conducting hostilities in a contemporary armed conflict, including against non-State actors and terrorists. Part A of the book focuses on necessity in the context of the use of force under international law and the principle of last resort in the just war tradition. Part B considers necessity in the context of international humanitarian law, criminal law and international human rights law, the relationship between necessity and discrimination in just war theory, and how to strike a balance between necessity and humanity. Part C applies necessity to several topical issues of contemporary conflicts, with discussion first given to the familiar dilemma of distinguishing between combatants

and civilians in asymmetric wars where one side deploys force without using a traditional army involving uniformed soldiers. Part C also raises more challenging questions: does warfare require disabling rather than killing combatants ? Should attacking forces first attempt to capture combatants before initiating a lethal strike? And can attacking forces prioritise their own soldier's lives over those of enemy civilians ? The authors attempt to articulate rules, standards or criteria which permits military conduct which is neither too restrictive nor too permissive in these situations.

The authors' investigations reveal that the concept of necessity "operated as a meaningful and substantial constraint on the use of force for as long as philosophers have been discussing the justice of war" (p 273). The permissive notion of necessity as a licence that currently reigns under international humanitarian law drew inspiration from Francis Lieber. The authors paint an ethereal portrait of necessity which simultaneously provides meaningful constraints while also threatening to carve out exceptions so large that they swallow the rules (p 274).

In circumstances where necessity is at its most constraining (that is, human rights principles), the law might have taken the constraining power of necessity too far when applied to armed conflict (p 189). By contrast, in those situations where necessity was at its most expansive (for example, criminal law or military necessity as an exception to well-established rules), the authors supported proposals to curb and occasionally eliminate necessity's power to craft a state of exception to legitimate rules of warfare. …

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