Jens David Ohlin and Larry May: Necessity in international law.
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.
For example, military necessity permits widespread summary killing of combatants. The authors "pushed back against progressive attempts to interpret today's law as being more restrictive than it actually is" and "pushed forward" to suggest that in future the law could be made more restrictive (p 275). The authors propose, consistent with moral theory, that less than lethal force should be used when lethal force is unnecessary, even if that view does not describe the legal position as it stands today (p 10). Furthermore, combatants should be forced to break off lethal military attacks that have literally no possibility of succeeding, but can use such force in situations that reasonably raise a likelihood of success. This solution represented a "mild amendment to currently codified legal doctrine" (p 274).
Similarly, although international humanitarian law does not currently demand an attempt to capture combatants before launching a lethal operation, there were moral reasons to require States, when engaged in asymmetric conflicts, to exhaust some non-lethal possibilities before resorting to lethal techniques (p 274). Again, the authors mooted "modest" reforms: "that the law of war be recalibrated so that the moral duty of States to exhaust non-lethal measures first should be codified somewhere in the law, either in revised rules of IHL or perhaps also in a more robust understanding of the necessity constraint in jus ad bellum or jus ex bello" (p 276). The authors also defended the view that the soldiers of an attacking force must bear a reasonable risk in order to protect the rights and interests of enemy civilians and combatants.
This book disaggregates necessity from a legal and philosophical perspective simultaneously. Perhaps inevitably the authors take an excursus into the role of proportionality as a constraint on using military force. More intriguingly, the text appears to be written from an exaggerated contrarian (verging on confessionalistic) perspective perhaps prompted by recent controversies covered by the media in the United States. For example, discussion of the duty to capture sprung from the Navy Seal raid against Osama bin Laden's compound in Pakistan and the drone strike in Yemen which killed the leader of Al-Qaeda in the Arabian Peninsula, Anwar al-Awlaki. Although theory is applied to concrete cases, I was left thirsty for more examples and factual details. Additional insights could have been gleaned from the treatment of necessity under the law of State responsibility which has been applied, for example, to excuse treaty violations - see, for example, T Gazzini, W Werner and I Dekker, "Necessity across International Law: Introduction" (2010) 41 NYBIL 3, 5.
Given the heightened security sensitivity of States, a healthy dose of introspective soulsearching makes this text a very timely contribution. In light of its elasticity, necessity is unquestionably a vital tool for lawyers during contemporary conflicts, and warmongers will likely reject the authors' provocative conservatism. Parts of this book first appeared in Larry May, Necessity and the Lives of Soldiers (which received an American Philosophical Association prize for the best unpublished work on the philosophy of war and peace for 2012-14) and Jens David Ohlin, "The Duty to Capture" (2013) 97 Minn L Rev 1268. Jens David Ohlin is a law professor at Cornell Law School who specialises on the laws of war with a particular focus on the impact of new technology and the role of non-State actors in armed conflict. Larry May is a professor of law, philosophy and political science at Vanderbilt University who writes about international criminal law and the just war tradition. Together they persuasively articulate "a normative account that suggests how and when necessity should be deployed as a powerful concept to justify and excuse State action in various domains" (p 273).
REVIEWED BY STEPHEN TULLY
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|Publication:||Australian International Law Journal|
|Article Type:||Book review|
|Date:||Jan 1, 2015|
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