Necessity in International Law

Jens David Ohlin is Professor of Law and Associate Dean for Academic Affairs at Cornell Law School. He specializes in international law and criminal law. He specifically focuses on the laws of war with special emphasis on the effects of new technology on the waging of warfare, including unmanned drones in the strategy of targeted killings, cyber-warfare, and the role of non-state actors in armed conflicts. He authored The Assault on International Law (Oxford, 2015). Larry May is the W. Alton Jones Professor of Philosophy, Professor of Law, and Professor of Political Science at Vanderbilt University. He has published over thirty books, including book length studies of each of the four crimes under the ICC's jurisdiction. These books have won awards in philosophy, law, and international relations. He has also published extensively on the history of the just war tradition, especially on the work of Grotius and Hobbes. He co-authored Proportionality in International Law (with Michael Newton, Oxford, 2014), and Limiting Leviathan: Hobbes on Law and International Affairs (Oxford, 2013).

Acknowledgments

Introduction
I. Three Kinds of Necessity: Exception, License, and Constraint
II. A Roadmap
III. Normative Prescriptions

Part A. Necessity & Jus Ad Bellum

Ch. 1. Necessity and the Principle of Last Resort in Just War Theory
I. Defining Aggression in the Just War Tradition
II. Gentili and the Justification of Offensive War
III. Grotius on Fear of Attack
IV. The Grotian Principles of Last Resort and Ad Bellum Necessity
V. Last Resort as the Ultimate Restraint
VI. Equally Efficacious Means

Ch. 2. Necessity and the Use of Force in International Law
I. Necessity and Customary Treaty Law
II. Necessity in Investor-State Relations
III. Necessity in Jus ad Bellum Violations
IV. Necessity as a Component of Self-Defense
V. Conclusion

Part B. Necessity & Jus in Bello

Ch. 3. Necessity and Discrimination in Just War Theory
I. Necessity and Discrimination in Early Modern Just War Theory
II. Necessity and Humane Treatment
III. Luck and Necessity
IV. Military Necessity as a Form of Practical Necessity
V. Relating Jus In Bello Proportionality and Necessity

Ch. 4. The Foundations of Necessity in IHL
I. The ICRC and Necessity
II. Lieber's Conception of Necessity
III. Necessity in the Nuremberg Tribunals
IV. What's Right and What's Wrong with Lieber's Necessity
V. Conclusion

Ch. 5. Necessity in Human Rights Law and IHL
I. Human Rights Necessity
II. Combining Human Rights Necessity with IHL Necessity
III. Conclusions

Ch. 6. Necessity in Criminal Law
I. Necessity in Domestic Criminal Law
I. No Constraints on the Necessity Defense
III. Ad Hoc Constraints
IV. Principled Constraints
V. Conclusion

Ch. 7. Striking a Balance Between Humanity and Necessity
I. Humanity
II. Humanitarianism and Human Dignity
III. Humane Treatment
IV. Dignity and Vulnerability
V. Humanitarian Rights
VI. Concluding Thoughts on the Principles of Humanity and Necessity

Part C. Applying Necessity to Contemporary Conflicts

Ch. 8. Combatants and Civilians in Asymmetric Wars
I. Pirates and Insurgents at War
II. Grotius on Non-State Actors in War
III. Jus Ad Bellum Issues
IV. Jus In Bello Issues
V. Civil Wars and Civilians

Ch. 9. Disabling vs. Killing in War
I. Specific Prohibitions versus General Duties
II. The Hors de Combat Argument
III. Least Harmful Means Test at the Geneva Negotiations
IV. Should Jus in Bello Require Disabling before Killing?
VI. Necessity and Killing Fleeing Soldiers

Ch. 10. The Duty to Capture
I. Is Capture Required by Jus in Bello Necessity?
II. Are Different Rules for Civilians and Combatants Morally Legitimate?
III. Capture as a Requirement of Constitutional Necessity
IV. The Moral Arguments for a Duty to Capture

Ch. 11. Force Protection
I. Understanding Force Protection
II. Jus ad Bellum Necessity and Force Protection
III. Jus in Bello Necessity and Force Protection
IV. The Hannibal Procedure
V. Reasonable Force Protection

Conclusion

Index