Uwe Steinhoff
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199217373
- eISBN:
- 9780191712470
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217373.001.0001
- Subject:
- Political Science, Political Theory
This book describes and explains the basic tenets of just war theory and gives a precise, succinct, and highly critical account of its present status and of the most important and controversial ...
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This book describes and explains the basic tenets of just war theory and gives a precise, succinct, and highly critical account of its present status and of the most important and controversial current debates surrounding it. Rejecting certain traditional, in effect medieval assumptions of just war theory and advancing a liberal outlook, it argues that every single individual is a legitimate authority and has, under certain circumstances, the right to declare war on others or the state. It also argues that just cause cannot be established independently of the other criteria of ius ad bellum (the justification for entering into war), except for right intention, which the book interprets more leniently than is traditional. Turning to ius in bello (which governs the conduct of a war) the book criticizes the doctrine of double effect and concludes that insofar as wars kill innocents, albeit as ‘collateral damage’, they cannot be just, but at best justified as the lesser evil. The book gives particular attention to the question why soldiers, allegedly, are legitimate targets and civilians not. Discussing four approaches to the explanation of the difference, it is argued that the four principles underlying them should all be taken into account and outlines how their comparative weighting can proceed when applied to concrete cases. The resulting approach does not square the distinction between legitimate and illegitimate targets with that between soldiers and civilians: this has extremely important consequences for the conduct of war. Finally, the book analyses the concept of terrorism, arguing that some forms of ‘terrorism’ are not terrorism at all and that, under certain circumstances, even terrorism proper can be justified.Less
This book describes and explains the basic tenets of just war theory and gives a precise, succinct, and highly critical account of its present status and of the most important and controversial current debates surrounding it. Rejecting certain traditional, in effect medieval assumptions of just war theory and advancing a liberal outlook, it argues that every single individual is a legitimate authority and has, under certain circumstances, the right to declare war on others or the state. It also argues that just cause cannot be established independently of the other criteria of ius ad bellum (the justification for entering into war), except for right intention, which the book interprets more leniently than is traditional. Turning to ius in bello (which governs the conduct of a war) the book criticizes the doctrine of double effect and concludes that insofar as wars kill innocents, albeit as ‘collateral damage’, they cannot be just, but at best justified as the lesser evil. The book gives particular attention to the question why soldiers, allegedly, are legitimate targets and civilians not. Discussing four approaches to the explanation of the difference, it is argued that the four principles underlying them should all be taken into account and outlines how their comparative weighting can proceed when applied to concrete cases. The resulting approach does not square the distinction between legitimate and illegitimate targets with that between soldiers and civilians: this has extremely important consequences for the conduct of war. Finally, the book analyses the concept of terrorism, arguing that some forms of ‘terrorism’ are not terrorism at all and that, under certain circumstances, even terrorism proper can be justified.
Karma Nabulsi
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294078
- eISBN:
- 9780191599972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294077.003.0001
- Subject:
- Political Science, International Relations and Politics
This short introduction describes the approach taken by the book and gives a brief outline of its contents. The story is about wars and military occupation, and the ideas underlying them, and the ...
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This short introduction describes the approach taken by the book and gives a brief outline of its contents. The story is about wars and military occupation, and the ideas underlying them, and the search for these ideas is carried out in the domain of the laws of war by addressing the challenge posed by a particular principle in these laws: the distinction between combatant and non-combatant, a concept which has been recognized as the fundamental principle upon which the entire notion of ‘humanity in warfare’ rests (and has also been acknowledged as the most fragile). The forces underpinning this distinction (more precisely, a distinction between the lawful and unlawful combatant) are explored by presenting three ideologies, each representing a distinct political tradition of war, and each rooted in incommensurable conceptions of the good life; the overall argument of the book is that this incommensurability lay at the source of the failure fully to resolve the problem of distinction between lawful and unlawful combatants between 1874 and 1949. The book makes use of concepts and methods borrowed from a range of intellectual disciplines: political thought, history, and the ‘classical’ traditions of international theory. In the case of the latter, it examines the influence of key thinkers on war, such as Machiavelli, Grotius, and Rousseau, but differs from this orthodox approach in two ways: first, it is not seeking to ascertain the ‘true’ meaning of their philosophies, but rather to find how their political thoughts were interpreted and shaped by later generations; second, the examination is not restricted to abstract theorists and philosophers but is centrally concerned with paradigms constructed by practitioners of war, both professional and civilian.Less
This short introduction describes the approach taken by the book and gives a brief outline of its contents. The story is about wars and military occupation, and the ideas underlying them, and the search for these ideas is carried out in the domain of the laws of war by addressing the challenge posed by a particular principle in these laws: the distinction between combatant and non-combatant, a concept which has been recognized as the fundamental principle upon which the entire notion of ‘humanity in warfare’ rests (and has also been acknowledged as the most fragile). The forces underpinning this distinction (more precisely, a distinction between the lawful and unlawful combatant) are explored by presenting three ideologies, each representing a distinct political tradition of war, and each rooted in incommensurable conceptions of the good life; the overall argument of the book is that this incommensurability lay at the source of the failure fully to resolve the problem of distinction between lawful and unlawful combatants between 1874 and 1949. The book makes use of concepts and methods borrowed from a range of intellectual disciplines: political thought, history, and the ‘classical’ traditions of international theory. In the case of the latter, it examines the influence of key thinkers on war, such as Machiavelli, Grotius, and Rousseau, but differs from this orthodox approach in two ways: first, it is not seeking to ascertain the ‘true’ meaning of their philosophies, but rather to find how their political thoughts were interpreted and shaped by later generations; second, the examination is not restricted to abstract theorists and philosophers but is centrally concerned with paradigms constructed by practitioners of war, both professional and civilian.
Emily Crawford
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578962
- eISBN:
- 9780191722608
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578962.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed ...
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Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This book asks whether the legal distinction between international and non-international armed conflicts remains viable or whether international law should move to maintain its consonance with the situations it seeks to regulate by developing a unified legal regime applicable in all armed conflicts. There is considerable precedent to support moves towards the elimination of the legal distinction between international and non-international armed conflicts. This book argues that IHL, a law which has, as one of its primary aims, the protection of the person in times of armed conflict, should not distinguish between types of armed conflict, specifically in how the law treats the vulnerable in times of armed conflict – those hors de combat due to illness and injury, and those deprived of their liberty through capture or surrenderLess
Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This book asks whether the legal distinction between international and non-international armed conflicts remains viable or whether international law should move to maintain its consonance with the situations it seeks to regulate by developing a unified legal regime applicable in all armed conflicts. There is considerable precedent to support moves towards the elimination of the legal distinction between international and non-international armed conflicts. This book argues that IHL, a law which has, as one of its primary aims, the protection of the person in times of armed conflict, should not distinguish between types of armed conflict, specifically in how the law treats the vulnerable in times of armed conflict – those hors de combat due to illness and injury, and those deprived of their liberty through capture or surrender
Jeff McMahan
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199548668
- eISBN:
- 9780191721045
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548668.001.0001
- Subject:
- Philosophy, Moral Philosophy, Philosophy of Language
Killing a person is in general among the most seriously wrongful forms of action, yet most of us accept that it can be permissible to kill people on a large scale in war. Does morality become more ...
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Killing a person is in general among the most seriously wrongful forms of action, yet most of us accept that it can be permissible to kill people on a large scale in war. Does morality become more permissive in a state of war? This book argues that conditions in war make no difference to what morality permits and that the justifications for killing people are the same in war as they are in other contexts, such as individual self-defence. This view is radically at odds with the traditional theory of the just war and has implications that challenge common sense views. It implies, for example, that it is wrong to fight in a war that is unjust because it lacks a just cause, that those who fight in a just war are not legitimate targets of attack, and that some civilians may, in principle if not in practice, be morally liable to suffer certain harms in war.Less
Killing a person is in general among the most seriously wrongful forms of action, yet most of us accept that it can be permissible to kill people on a large scale in war. Does morality become more permissive in a state of war? This book argues that conditions in war make no difference to what morality permits and that the justifications for killing people are the same in war as they are in other contexts, such as individual self-defence. This view is radically at odds with the traditional theory of the just war and has implications that challenge common sense views. It implies, for example, that it is wrong to fight in a war that is unjust because it lacks a just cause, that those who fight in a just war are not legitimate targets of attack, and that some civilians may, in principle if not in practice, be morally liable to suffer certain harms in war.
Thorsten Benner, Stephan Mergenthaler, and Philipp Rotmann
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199594887
- eISBN:
- 9780191729065
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199594887.001.0001
- Subject:
- Political Science, International Relations and Politics
Peace operations are the UN's flagship activity. Over the past decade, UN blue helmets have been dispatched to evermore challenging environments from the Congo to Timor to perform an expanding set of ...
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Peace operations are the UN's flagship activity. Over the past decade, UN blue helmets have been dispatched to evermore challenging environments from the Congo to Timor to perform an expanding set of tasks. From protecting civilians in the midst of violent conflict to rebuilding state institutions after war, a new range of tasks has transformed the business of the blue helmets into an inherently knowledge-based venture. But all too often, the UN blue helmets, policemen, and other civilian officials have been ‘flying blind’ in their efforts to stabilize countries ravaged by war. The UN realized the need to put knowledge, guidance and doctrine, and reflection on failures and successes at the center of the institution. Building on an innovative multidisciplinary framework, this study provides a first comprehensive account of learning in peacekeeping. Covering the crucial past decade of expansion in peace operations, it zooms into a dozen cases of attempted learning across four crucial domains: police assistance, judicial reform, reintegration of former combatants, and mission integration. Throughout the different cases, the study analyzes the role of key variables as enablers and stumbling blocks for learning: bureaucratic politics, the learning infrastructure, leadership, as well as power and interests of member states. Building on five years of research and access to key documents and decision-makers, the book presents a vivid portrait of an international bureaucracy struggling to turn itself into a learning organization.Less
Peace operations are the UN's flagship activity. Over the past decade, UN blue helmets have been dispatched to evermore challenging environments from the Congo to Timor to perform an expanding set of tasks. From protecting civilians in the midst of violent conflict to rebuilding state institutions after war, a new range of tasks has transformed the business of the blue helmets into an inherently knowledge-based venture. But all too often, the UN blue helmets, policemen, and other civilian officials have been ‘flying blind’ in their efforts to stabilize countries ravaged by war. The UN realized the need to put knowledge, guidance and doctrine, and reflection on failures and successes at the center of the institution. Building on an innovative multidisciplinary framework, this study provides a first comprehensive account of learning in peacekeeping. Covering the crucial past decade of expansion in peace operations, it zooms into a dozen cases of attempted learning across four crucial domains: police assistance, judicial reform, reintegration of former combatants, and mission integration. Throughout the different cases, the study analyzes the role of key variables as enablers and stumbling blocks for learning: bureaucratic politics, the learning infrastructure, leadership, as well as power and interests of member states. Building on five years of research and access to key documents and decision-makers, the book presents a vivid portrait of an international bureaucracy struggling to turn itself into a learning organization.
Karma Nabulsi
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294078
- eISBN:
- 9780191599972
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294077.001.0001
- Subject:
- Political Science, International Relations and Politics
This book examines wars and military occupation, and the ideas underlying them. The search for these ideas is conducted in the domain of the laws of war, a body of rules that sought to regulate the ...
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This book examines wars and military occupation, and the ideas underlying them. The search for these ideas is conducted in the domain of the laws of war, a body of rules that sought to regulate the practices of war and those permitted to fight in it. This work introduces three ideologies: the martial, Grotian, and republican. These traditions were rooted in incommensurable conceptions of the good life, and the overall argument is that their differences lay at the heart of the failure fully to resolve the distinction between lawful and unlawful combatants at successive diplomatic conferences of Brussels in 1874, the Hague in 1899 and 1907, and Geneva in 1949. Based on a wide range of sources and a plurality of intellectual disciplines, the book places these diplomatic failures in their broader social and political contexts. By bringing out ideological continuities and drawing on the social history of army occupation in Europe and resistance to it, the book both challenges and illuminates the understanding of modern war.Less
This book examines wars and military occupation, and the ideas underlying them. The search for these ideas is conducted in the domain of the laws of war, a body of rules that sought to regulate the practices of war and those permitted to fight in it. This work introduces three ideologies: the martial, Grotian, and republican. These traditions were rooted in incommensurable conceptions of the good life, and the overall argument is that their differences lay at the heart of the failure fully to resolve the distinction between lawful and unlawful combatants at successive diplomatic conferences of Brussels in 1874, the Hague in 1899 and 1907, and Geneva in 1949. Based on a wide range of sources and a plurality of intellectual disciplines, the book places these diplomatic failures in their broader social and political contexts. By bringing out ideological continuities and drawing on the social history of army occupation in Europe and resistance to it, the book both challenges and illuminates the understanding of modern war.
Karma Nabulsi
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294078
- eISBN:
- 9780191599972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294077.003.0002
- Subject:
- Political Science, International Relations and Politics
This is the first of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed: ...
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This is the first of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed: political and diplomatic (this chapter), social (Chapter 2) and intellectual (Chapter 3). The narrative begins by summarizing the diplomatic history of the conferences at Brussels in 1874, at the Hague in 1899 and 1907, and at Geneva in 1949. While the negotiations of the laws of war proved successful in many respects, they consistently failed to agree on a common legal understanding of a lawful combatant.Less
This is the first of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed: political and diplomatic (this chapter), social (Chapter 2) and intellectual (Chapter 3). The narrative begins by summarizing the diplomatic history of the conferences at Brussels in 1874, at the Hague in 1899 and 1907, and at Geneva in 1949. While the negotiations of the laws of war proved successful in many respects, they consistently failed to agree on a common legal understanding of a lawful combatant.
Karma Nabulsi
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294078
- eISBN:
- 9780191599972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294077.003.0003
- Subject:
- Political Science, International Relations and Politics
This is the second of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed: ...
More
This is the second of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed: political and diplomatic (Chapter 1), social (this chapter) and intellectual (Chapter 3). It explores the social history of army occupation and resistance to it in nineteenth century Europe – from the Napoleonic period to the Franco-Prussian war– and places these diplomatic failures in their broader social and political context. In particular it examines the range of army practices under occupation, and the effect that they had on civilian life. The different sections of the chapter discuss: pillaging, looting, requisitions and billeting; reprisals; hostage-taking; types of civilian behaviour –obedience to the occupier, political and armed acts of resistance, organized acts of resistance –guerrillas and franc-tireurs; levee en masse and other assorted insurrections; ideologies of resistance; religion as a source of resistance; and the influence of nationalism and patriotism.Less
This is the second of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed: political and diplomatic (Chapter 1), social (this chapter) and intellectual (Chapter 3). It explores the social history of army occupation and resistance to it in nineteenth century Europe – from the Napoleonic period to the Franco-Prussian war– and places these diplomatic failures in their broader social and political context. In particular it examines the range of army practices under occupation, and the effect that they had on civilian life. The different sections of the chapter discuss: pillaging, looting, requisitions and billeting; reprisals; hostage-taking; types of civilian behaviour –obedience to the occupier, political and armed acts of resistance, organized acts of resistance –guerrillas and franc-tireurs; levee en masse and other assorted insurrections; ideologies of resistance; religion as a source of resistance; and the influence of nationalism and patriotism.
Karma Nabulsi
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294078
- eISBN:
- 9780191599972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294077.003.0004
- Subject:
- Political Science, International Relations and Politics
This is the third of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed, and ...
More
This is the third of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed, and explores a range of intellectual approaches to the laws of war and war itself, assessing their relative methodological value and limitations. Previous chapters have illustrated that there existed at all levels a profound disagreement about the classes of people who were permitted to engage in political violence in times of war, and by narrowing the scope of inquiry to this one aspect (lawful versus unlawful combatants) of the laws of war, these chapters have also shown that there were strong normative elements to this lack of accord. Starting with this chapter, the remainder of the book argues that these normative elements were expressions of profound ideological clashes among three contending philosophies of war: martial, Grotian, and republican. From a methodological perspective, the explanation for the failed attempt to construct a distinction between lawful and unlawful combatants will be seen to lie in incommensurable normative frameworks of war, rather than in the specialized analytical tools of legal theory, diplomatic and archival history, and international relations theory. This chapter first assesses both the intellectual contributions and limitations of the legal, historical and international relations approaches before defining the three distinct traditions of war (martial, Grotian, and republican), and highlighting their explanatory value.Less
This is the third of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed, and explores a range of intellectual approaches to the laws of war and war itself, assessing their relative methodological value and limitations. Previous chapters have illustrated that there existed at all levels a profound disagreement about the classes of people who were permitted to engage in political violence in times of war, and by narrowing the scope of inquiry to this one aspect (lawful versus unlawful combatants) of the laws of war, these chapters have also shown that there were strong normative elements to this lack of accord. Starting with this chapter, the remainder of the book argues that these normative elements were expressions of profound ideological clashes among three contending philosophies of war: martial, Grotian, and republican. From a methodological perspective, the explanation for the failed attempt to construct a distinction between lawful and unlawful combatants will be seen to lie in incommensurable normative frameworks of war, rather than in the specialized analytical tools of legal theory, diplomatic and archival history, and international relations theory. This chapter first assesses both the intellectual contributions and limitations of the legal, historical and international relations approaches before defining the three distinct traditions of war (martial, Grotian, and republican), and highlighting their explanatory value.
Karma Nabulsi
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294078
- eISBN:
- 9780191599972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294077.003.0006
- Subject:
- Political Science, International Relations and Politics
This is the second of three chapters on the three traditions of war, and introduces the Groatian tradition, which is viewed as the most dominant and powerful of the traditions presented, and had as ...
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This is the second of three chapters on the three traditions of war, and introduces the Groatian tradition, which is viewed as the most dominant and powerful of the traditions presented, and had as its primary source the Dutch diplomat, lawyer, poet, mathematician, theologian, and historian, Hugo Grotius (1583-1645). The objective of the chapter is to analyse this ideology, and show how its principles came to underpin the later Grotian rationale for the legal distinction between lawful and unlawful combatants. The chapter begins by evoking the inherently enigmatic qualities of Grotius and the numerous (and often conflicting) traditions that he inspired; next the distinct properties of the Grotian tradition of war are set out and seen to consist of a singular legal discourse, a pluralist method, and a strong attachment to order and power. The core components of this ideology are then examined with reference to Grotian conceptions of human nature, government, and liberty; these elements are shown to provide the necessary foundations of Grotius’ conception of war, and in particular to inform the priority accorded to the rights of states and armies over those of civilian populations. The final section of the chapter examines how this ideology informed the practices and beliefs of the founders of the modern laws of war; these ideological changes highlight the adaptability of this tradition as it developed at the end of the nineteenth century, and defined the dominant paradigm of the laws of war.Less
This is the second of three chapters on the three traditions of war, and introduces the Groatian tradition, which is viewed as the most dominant and powerful of the traditions presented, and had as its primary source the Dutch diplomat, lawyer, poet, mathematician, theologian, and historian, Hugo Grotius (1583-1645). The objective of the chapter is to analyse this ideology, and show how its principles came to underpin the later Grotian rationale for the legal distinction between lawful and unlawful combatants. The chapter begins by evoking the inherently enigmatic qualities of Grotius and the numerous (and often conflicting) traditions that he inspired; next the distinct properties of the Grotian tradition of war are set out and seen to consist of a singular legal discourse, a pluralist method, and a strong attachment to order and power. The core components of this ideology are then examined with reference to Grotian conceptions of human nature, government, and liberty; these elements are shown to provide the necessary foundations of Grotius’ conception of war, and in particular to inform the priority accorded to the rights of states and armies over those of civilian populations. The final section of the chapter examines how this ideology informed the practices and beliefs of the founders of the modern laws of war; these ideological changes highlight the adaptability of this tradition as it developed at the end of the nineteenth century, and defined the dominant paradigm of the laws of war.
Karma Nabulsi
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294078
- eISBN:
- 9780191599972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294077.003.0008
- Subject:
- Political Science, International Relations and Politics
By the end of the Geneva negotiations in 1949, significant progress had been made in the codification of the laws of war, although the question of the legal distinction between lawful and unlawful ...
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By the end of the Geneva negotiations in 1949, significant progress had been made in the codification of the laws of war, although the question of the legal distinction between lawful and unlawful combatants remained essentially unresolved. The book has outlined both the conceptual and practical historical contexts within which this problem was confronted, and in doing so has offered an explanation of its intractability, its argument being that three fundamentally divergent philosophies of war that cannot be reconciled lie at the heart of the problem. A number of central and important themes have been identified: (1) the book has underlined that in situations of war or military occupation, many of the traditional dichotomies in both international relations theory and political theory are lost; (2) from the perspective of international law, in contrast with the conventional depiction of the legal arena as an exclusive instrument for advancing and reconciling state interests, the analysis has shown that legal systems are also (and perhaps primarily) the expressions of ideological norms and values; and (3) the importance of ideological traditions has been demonstrated. Finally, in its treatment of the themes of war and military occupation, a number of points have been highlighted: (1) the opaque nature of occupation in nineteenth-century Europe; (2) the existence of a powerful custom of civilian resistance to occupation, not even accounted for by the makers of the laws of war; (3) the impossibility of maintaining a distinction between the public and private spheres under occupation; (4) the incoherence of a Groatian formulation in the face of such army practices as reprisal (a martialist policy); and (5) the explicit emergence of patriotism and nationalism in these situations. These points demonstrate that it was hardly surprising that the attempt to introduce a distinction between lawful and unlawful combatants failed, and show that the essential truth oaboutwars of military occupation and conquest is captured in the opposition between martial and republican paradigms.Less
By the end of the Geneva negotiations in 1949, significant progress had been made in the codification of the laws of war, although the question of the legal distinction between lawful and unlawful combatants remained essentially unresolved. The book has outlined both the conceptual and practical historical contexts within which this problem was confronted, and in doing so has offered an explanation of its intractability, its argument being that three fundamentally divergent philosophies of war that cannot be reconciled lie at the heart of the problem. A number of central and important themes have been identified: (1) the book has underlined that in situations of war or military occupation, many of the traditional dichotomies in both international relations theory and political theory are lost; (2) from the perspective of international law, in contrast with the conventional depiction of the legal arena as an exclusive instrument for advancing and reconciling state interests, the analysis has shown that legal systems are also (and perhaps primarily) the expressions of ideological norms and values; and (3) the importance of ideological traditions has been demonstrated. Finally, in its treatment of the themes of war and military occupation, a number of points have been highlighted: (1) the opaque nature of occupation in nineteenth-century Europe; (2) the existence of a powerful custom of civilian resistance to occupation, not even accounted for by the makers of the laws of war; (3) the impossibility of maintaining a distinction between the public and private spheres under occupation; (4) the incoherence of a Groatian formulation in the face of such army practices as reprisal (a martialist policy); and (5) the explicit emergence of patriotism and nationalism in these situations. These points demonstrate that it was hardly surprising that the attempt to introduce a distinction between lawful and unlawful combatants failed, and show that the essential truth oaboutwars of military occupation and conquest is captured in the opposition between martial and republican paradigms.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0007
- Subject:
- Political Science, International Relations and Politics
The evidence presented in previous chapters contributes to the general argument that the US defends the idea of a society of states because it is in the kind of society that America can preserve a ...
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The evidence presented in previous chapters contributes to the general argument that the US defends the idea of a society of states because it is in the kind of society that America can preserve a preferred self‐image and can best advance its particular interests. This chapter develops that argument one stage further by focusing on the US response to the terrorist attacks of 9–11. From the perspective of the Bush administration, only those fighting on behalf of sovereign states could claim a right to lawful belligerency and the right to protection under the laws of war. Dealing with the terrorist threat through the norms of the society of states, therefore, provided additional normative criteria to delegitimize Al Qaeda and it put the issue of counter‐terrorism in a legal and political setting the US could, as the most powerful state, more or less dictate. The chapter provides historical context to this policy by focusing on the US rejection of Protocol I additional to the Geneva Conventions and illustrates how US lawyers also used the concept of sovereignty in an attempt to escape the oversight of national as well as international courts.Less
The evidence presented in previous chapters contributes to the general argument that the US defends the idea of a society of states because it is in the kind of society that America can preserve a preferred self‐image and can best advance its particular interests. This chapter develops that argument one stage further by focusing on the US response to the terrorist attacks of 9–11. From the perspective of the Bush administration, only those fighting on behalf of sovereign states could claim a right to lawful belligerency and the right to protection under the laws of war. Dealing with the terrorist threat through the norms of the society of states, therefore, provided additional normative criteria to delegitimize Al Qaeda and it put the issue of counter‐terrorism in a legal and political setting the US could, as the most powerful state, more or less dictate. The chapter provides historical context to this policy by focusing on the US rejection of Protocol I additional to the Geneva Conventions and illustrates how US lawyers also used the concept of sovereignty in an attempt to escape the oversight of national as well as international courts.
T. A. Cavanaugh
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780199272198
- eISBN:
- 9780191604157
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199272190.003.0005
- Subject:
- Religion, Philosophy of Religion
This chapter considers a number of remaining questions following the arguments of the previous chapters: Does one owe reparations for causing foreseen harm? How (considering cases Quinn proposes) ...
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This chapter considers a number of remaining questions following the arguments of the previous chapters: Does one owe reparations for causing foreseen harm? How (considering cases Quinn proposes) does double effect apply in cases of allowing? Can one employ double effect to evaluate one’s otherwise good act that becomes problematic due to another’s wrongful conduct (material cooperation)? While the i/f distinction has independent ethical relevance, must the law accord it similar independent legal import? How does the Roman Catholic Church receive DER? The chapter also indicates how jurists in constitutional legal systems that incorporate exceptionless legal norms (such as the U.S. Bill of Rights) employ a legal analogue to double effect.Less
This chapter considers a number of remaining questions following the arguments of the previous chapters: Does one owe reparations for causing foreseen harm? How (considering cases Quinn proposes) does double effect apply in cases of allowing? Can one employ double effect to evaluate one’s otherwise good act that becomes problematic due to another’s wrongful conduct (material cooperation)? While the i/f distinction has independent ethical relevance, must the law accord it similar independent legal import? How does the Roman Catholic Church receive DER? The chapter also indicates how jurists in constitutional legal systems that incorporate exceptionless legal norms (such as the U.S. Bill of Rights) employ a legal analogue to double effect.
Emily Crawford
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578962
- eISBN:
- 9780191722608
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578962.003.0002
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the nature of POW and combatant status, exploring the origins and historical evolution of combatant/POW status. The chapter looks at what combatant/POW status comprises, that ...
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This chapter examines the nature of POW and combatant status, exploring the origins and historical evolution of combatant/POW status. The chapter looks at what combatant/POW status comprises, that is, what rules and responsibilities the status entails. The chapter looks at why the status is important, and what consequences result from denial or loss of combatant/POW designation. Finally, this chapter also examines why combatant/POW status is denied to participants in non-international armed conflicts.Less
This chapter examines the nature of POW and combatant status, exploring the origins and historical evolution of combatant/POW status. The chapter looks at what combatant/POW status comprises, that is, what rules and responsibilities the status entails. The chapter looks at why the status is important, and what consequences result from denial or loss of combatant/POW designation. Finally, this chapter also examines why combatant/POW status is denied to participants in non-international armed conflicts.
James Pattison
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199561049
- eISBN:
- 9780191722318
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199561049.003.0004
- Subject:
- Political Science, Comparative Politics, International Relations and Politics
This chapter defends the moral importance of an intervener's fidelity to the principles to jus in bello (principles of just conduct in war). It begins by outlining the particular principles of ...
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This chapter defends the moral importance of an intervener's fidelity to the principles to jus in bello (principles of just conduct in war). It begins by outlining the particular principles of ‘external jus in bello’ that an intervener should follow (focusing largely on discrimination and proportionality). It draws on Jeff McMahan's work and the nature of humanitarian intervention to claim that these principles should be highly restrictive. The chapter then asserts two principles of ‘internal jus in bello’. The second section considers more broadly the moral underpinnings of the principles of jus in bello. It claims that consequentialist justifications of these principles cannot fully grasp their moral significance and particularly the difference between doing and allowing. The final section considers the ‘Absolutist Challenge’—that the principles of jus in bello defended are too important and consequently render humanitarian intervention impermissible. After rejecting the doctrine of double effect as a solution to this challenge, the chapter invokes the scalar account of legitimacy to respond to this objection.Less
This chapter defends the moral importance of an intervener's fidelity to the principles to jus in bello (principles of just conduct in war). It begins by outlining the particular principles of ‘external jus in bello’ that an intervener should follow (focusing largely on discrimination and proportionality). It draws on Jeff McMahan's work and the nature of humanitarian intervention to claim that these principles should be highly restrictive. The chapter then asserts two principles of ‘internal jus in bello’. The second section considers more broadly the moral underpinnings of the principles of jus in bello. It claims that consequentialist justifications of these principles cannot fully grasp their moral significance and particularly the difference between doing and allowing. The final section considers the ‘Absolutist Challenge’—that the principles of jus in bello defended are too important and consequently render humanitarian intervention impermissible. After rejecting the doctrine of double effect as a solution to this challenge, the chapter invokes the scalar account of legitimacy to respond to this objection.
Noam Lubell
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199584840
- eISBN:
- 9780191594540
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199584840.003.0007
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter delves into the content of the rules applicable to extraterritorial armed conflicts against non-state actors. Detailed attention is given to the status of individuals under international ...
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This chapter delves into the content of the rules applicable to extraterritorial armed conflicts against non-state actors. Detailed attention is given to the status of individuals under international humanitarian law, and whether members of armed groups should be considered as civilians or combatants. This includes examination of the notions of direct participation in hostilities and unlawful combatants. Following this, the chapter examines challenges in the humanitarian law rules regulating force against non-state actors, in the context of both large scale and small scale operations.Less
This chapter delves into the content of the rules applicable to extraterritorial armed conflicts against non-state actors. Detailed attention is given to the status of individuals under international humanitarian law, and whether members of armed groups should be considered as civilians or combatants. This includes examination of the notions of direct participation in hostilities and unlawful combatants. Following this, the chapter examines challenges in the humanitarian law rules regulating force against non-state actors, in the context of both large scale and small scale operations.
Alia Brahimi
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199562961
- eISBN:
- 9780191595059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562961.003.0004
- Subject:
- Political Science, Political Theory, International Relations and Politics
Examining questions of jus in bello, this chapter begins by applying the principles of proportionality and discrimination to the invasion of Iraq. The analysis then focuses on the Bush ...
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Examining questions of jus in bello, this chapter begins by applying the principles of proportionality and discrimination to the invasion of Iraq. The analysis then focuses on the Bush administration's justifications for the treatment of ‘non‐lawful combatants’ at Guantanamo Bay. Using the logic of ‘supreme emergency’, alleged terrorists were stripped of Geneva Convention protections because the defensive just cause was presented as unusually urgent and the stakes were said to be civilizational. First‐order principles such as the prohibition against torture were qualified by the emergency of the jus ad bellum, thus rendering supposedly absolute human rights contingent upon the state of the world. The Bush administration's ‘choice of evils’ strategy was critiqued by other lawyers, governments, and human rights groups worldwide, as well as by members of the Bush administration's Department of State.Less
Examining questions of jus in bello, this chapter begins by applying the principles of proportionality and discrimination to the invasion of Iraq. The analysis then focuses on the Bush administration's justifications for the treatment of ‘non‐lawful combatants’ at Guantanamo Bay. Using the logic of ‘supreme emergency’, alleged terrorists were stripped of Geneva Convention protections because the defensive just cause was presented as unusually urgent and the stakes were said to be civilizational. First‐order principles such as the prohibition against torture were qualified by the emergency of the jus ad bellum, thus rendering supposedly absolute human rights contingent upon the state of the world. The Bush administration's ‘choice of evils’ strategy was critiqued by other lawyers, governments, and human rights groups worldwide, as well as by members of the Bush administration's Department of State.
Alia Brahimi
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199562961
- eISBN:
- 9780191595059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562961.003.0007
- Subject:
- Political Science, Political Theory, International Relations and Politics
In the 1990s, Osama bin Laden observed proudly that the Afghan jihad against the Russians was unstained by the blood of innocents. Yet, since 1993, civilians have been al‐Qaeda's chosen targets. This ...
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In the 1990s, Osama bin Laden observed proudly that the Afghan jihad against the Russians was unstained by the blood of innocents. Yet, since 1993, civilians have been al‐Qaeda's chosen targets. This chapter explores issues raised by al‐Qaeda's conduct during its war against the United States in the light of Islamic ideas about jus in bello. The first section of this chapter briefly introduces the jus in bello tradition in Islam. The second section discusses the legitimacy of suicide attacks and the place of martyrdom in the Islamic tradition. The final section examines bin Laden's attempts to overturn the robust Islamic protections for civilians in war. Bin Laden himself subscribes to the principle of non‐combatant immunity and employs it in levelling virulent criticism against the US's policies—yet his acceptance of the principle leads him into an unclear and uncomfortable moral position with regard to al‐Qaeda's attacks.Less
In the 1990s, Osama bin Laden observed proudly that the Afghan jihad against the Russians was unstained by the blood of innocents. Yet, since 1993, civilians have been al‐Qaeda's chosen targets. This chapter explores issues raised by al‐Qaeda's conduct during its war against the United States in the light of Islamic ideas about jus in bello. The first section of this chapter briefly introduces the jus in bello tradition in Islam. The second section discusses the legitimacy of suicide attacks and the place of martyrdom in the Islamic tradition. The final section examines bin Laden's attempts to overturn the robust Islamic protections for civilians in war. Bin Laden himself subscribes to the principle of non‐combatant immunity and employs it in levelling virulent criticism against the US's policies—yet his acceptance of the principle leads him into an unclear and uncomfortable moral position with regard to al‐Qaeda's attacks.
Geoffrey Blest
- Published in print:
- 1997
- Published Online:
- October 2011
- ISBN:
- 9780198206996
- eISBN:
- 9780191677427
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198206996.003.0009
- Subject:
- History, Military History
This chapter discusses the laws of war defining pertinent rules and rights of the participants in the armed conflict to choose methods or means of warfare. It notes that the laws of war do not ...
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This chapter discusses the laws of war defining pertinent rules and rights of the participants in the armed conflict to choose methods or means of warfare. It notes that the laws of war do not recognize in belligerents an unlimited power in the adoption of means of injuring the enemy. It also discusses the endeavour to distinguish combatants from civilians and improve the latter's chances of protection in wartime as embodied in the current Protocol's permissions and prohibitions. It provides interpretations on the Protocols attached to the 1981 UN Convention on Certain Conventional Weapons, citing prohibitions on the use of incendiary weapons, napalm not being specifically mentioned; prohibition on the use of any weapon, ‘the primary effect of which is to injure by fragments which in the human body escape detection by X-rays’; and prohibitions on the use of land mines, booby traps and other devices.Less
This chapter discusses the laws of war defining pertinent rules and rights of the participants in the armed conflict to choose methods or means of warfare. It notes that the laws of war do not recognize in belligerents an unlimited power in the adoption of means of injuring the enemy. It also discusses the endeavour to distinguish combatants from civilians and improve the latter's chances of protection in wartime as embodied in the current Protocol's permissions and prohibitions. It provides interpretations on the Protocols attached to the 1981 UN Convention on Certain Conventional Weapons, citing prohibitions on the use of incendiary weapons, napalm not being specifically mentioned; prohibition on the use of any weapon, ‘the primary effect of which is to injure by fragments which in the human body escape detection by X-rays’; and prohibitions on the use of land mines, booby traps and other devices.
Jeff McMahan
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199548668
- eISBN:
- 9780191721045
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548668.003.0001
- Subject:
- Philosophy, Moral Philosophy, Philosophy of Language
This chapter analyzes and criticizes the currently orthodox theory of the just war, according to which it is permissible for combatants on both sides in a war to fight, irrespective of whether their ...
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This chapter analyzes and criticizes the currently orthodox theory of the just war, according to which it is permissible for combatants on both sides in a war to fight, irrespective of whether their war is just or unjust, provided that they obey the rules governing the conduct of war. The argument of the chapter is that the traditional view — that all combatants are legitimate targets while no civilians are — has no coherent moral foundation. It argues that it is impossible for acts of war by combatants who lack a just cause to satisfy the requirement of proportionality. It concludes by advancing a revisionist criterion of moral liability to attack in war.Less
This chapter analyzes and criticizes the currently orthodox theory of the just war, according to which it is permissible for combatants on both sides in a war to fight, irrespective of whether their war is just or unjust, provided that they obey the rules governing the conduct of war. The argument of the chapter is that the traditional view — that all combatants are legitimate targets while no civilians are — has no coherent moral foundation. It argues that it is impossible for acts of war by combatants who lack a just cause to satisfy the requirement of proportionality. It concludes by advancing a revisionist criterion of moral liability to attack in war.
