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There are legal limits on the circumstances under which states may use military force to address a perceived or actual threat. The concepts of necessity and proportionality are central to these limitations imposed by the law.
Necessity and Proportionality in International Peace and Security Law explores the many ways in which necessity and proportionality arise in the law on the modern battlefield, which is rapidly changing, complex, and ambiguous.
List of contents
- Foreword
- Brigadier General Joseph B. Berger III
- Introduction
- Claus Kreß
- PART ONE: An Encounter of International Law with Morality
- 1. Necessity and Proportionality in Morality and Law
- Jeff McMahan
- PART TWO: Considerations of Overarching Significance
- 2. On the Continuous and Concurrent Application of ad Bellum and in Bello Proportionality
- Eliav Lieblich
- PART THREE: The International Law Governing the Use of Force
- 3. The Essential Link Between Proportionality and Necessity in the Exercise of Self-Defense
- Geoffrey S. Corn
- 4. The Unwilling and Unable Test for Extraterritorial Defensive Force: Why Force Is Permitted Against the Territorial State
- Jens David Ohlin
- 5. Drones Programs, the Individualization of War, and the ad Bellum Principle of Proportionality
- Rebecca Mignot-Mahdavi
- 6. The Quest for an Internal Jus ad Bellum: International Law's Missing Link, Mere Distraction, or Pandora's Box?
- Tom Ruys
- 7. Article 51's Reporting Requirement as a Space for Legal Argument and Factfulness
- Larissa van den Herik
- PART FOUR: The International Law of Armed Conflicts
- 8. Sequences in Military Necessity for the Jus in Bello
- Dino Kritsiotis
- 9. Practical and Conceptual Challenges to Doctrinal Military Necessity
- Robert Lawless
- 10. Considerations of Necessity Under Article 57(2)(a)(ii), (c), and (3) and Proportionality Under Article 51(5)(b) and Article 57(2)(b) of Additional Protocol I: Is There Room for an Integrated Approach?
- Wolff Heintschel von Heinegg
- 11. Specifying the Proportionality Test and the Standard of Due Precaution: Problems of Prognostic Assessment in Determining the Meaning of "May Be Expected" and "Anticipated"
- Stefan Oeter
- 12. The Proportionality Rule and Mental Health Harm in War
- Sarah Knuckey, Alex Moorehead, Audrey McCalley, and Adam Brown
- 13. Towards the Special Computer Law of Targeting: "Fully Autonomous" Weapons Systems and the Proportionality Test
- Masahiro Kurosaki
- PART FIVE: Jus Post Bellum
- 14. The Duty to Pay Reparations for the Violation of the Prohibition of the Use of Force in International Relations and the Jus Post Bellum
- Elisabeth Günnewig
- Index
About the author
Claus Kreß is a Professor of International Law and Criminal Law. He holds the Chair for German and International Criminal Law and is the Director of the Institute of International Peace and Security Law at the University of Cologne. His prior practice was in the German Federal Ministry of Justice on matters of criminal law and international law. In addition to his scholarly work, comprising more than 150 publications on the law on the use of force, the law of armed conflicts and international criminal law, he has been a member of Germany's delegations in the negotiations regarding the International Criminal Court since 1998. He is a Life Member of Clare Hall College at the University of Cambridge, a Member of the Academy of Sciences and Arts of Northrhine-Westfalia, and the recipient of the 2014 M.C. Bassiouni Justice Award. He holds honorary doctorates from the State University Tbilisi and the University of Huánuco.
Robert Lawless is a Judge Advocate in the United States Army Judge Advocate General's Corps. He has been assigned as both a prosecutor and defense counsel, litigating military justice cases in courts-martial. He also served as an administrative and operational law attorney for the Third Infantry Division during Operation Resolute Support in Afghanistan. His assignments also include serving as an Assistant Professor in the Department of Law at the United States Military Academy, West Point, New York.
Summary
Necessity and proportionality hold a firm place in the international law governing the use of force by states, as well as in the law of armed conflict. However, the precise contours of these two requirements are uncertain and controversial. The aim of Necessity and Proportionality in International Peace and Security Law is to explore how necessity and proportionality manifest themselves in the modern world under the law governing the use of force and the law of armed conflict, and how they relate to each other.
The book explores the ways in which necessity and proportionality are applied in practice and addresses pressing legal issues in the law on the use of force, including the controversial "unwilling and unable" test for the use of force in self-defense, drones and targeted killing, the application of this legal regime during civil war, and the need for further transparency in states' justification for the use of force in self-defense.
The analysis of the role of military necessity within the law of armed conflict on the modern battlefield focuses on the history and nature of the principle of military necessity, the proper application of the principle of proportionality, how commanders should account for mental harm in calculating proportionality, and the role artificial intelligence and autonomous weapons systems may play in proportionality analysis. The book concludes with a discussion of the potential role of proportionality in the law governing post-conflict contexts.
