Summary
One can draw a parallel between the restrictions states place on their soldiers’ use of force and the manner in which the United Nations restricts a state’s use of force under Article 2(4) of the Charter. This parallel is useful in showing how both the ‘sovereigns’ limitations on the use of force are, in turn, limited by rule of law principles of natural justice that go beyond self-defence and into the realm of the defence of duress, necessity and coercion, giving rise to a justification or an excuse. The United Nations’ absolute restriction on the use of force, therefore, should be limited by more than just the self-defence provision of Article 51 and would potentially allow unilateral humanitarian intervention in extreme circumstances. The US military courts, in dicta, have implied a balancing test in which the order to not use force can be trumped by the imminence and severity of the threat to the innocent; therefore, continued obedience would no longer be mandated. This conclusion, as highlighted by George Fletcher and Jens Ohlin in their book, Defending Humanity, is rooted in the evolution of both law and philosophy.
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Extract
The Natural Right to Intervene. The Evolution of the Concepts of Justification and Excuse for Both State and Individual
Richard V. Meyer. Assistant Professor, United States Military Academy at West Point, New York. The authors would like to thank John Dehn, William Schabas, Geoff Corn, Mike Leonard, Randy Masten, John Head and John Taylor for their help on this article. They would like to give special thanks to Mary, the wife of Max Maxwell, for her editing. The mistakes in this article, of course, are the authors’ and the views expressed herein do not reflect the position of the Department of Defense or those they thanked. [rich.meyer@usma.edu]
Mark David ‘Max’ Maxwell. Judge Advocate with the US Army. 1. Introduction Professors George Fletcher and Jens Ohlin’s recent book, Defending Humanity, 1 is as breathtakingly original as it is timely. The fundamental premise of this work, which we find both probative and intellectually enticing, is the concept that the jurisprudence of domestic legal systems should be used to further develop international law.2 Prior to the publication of Defending Humanity, we had begun research on a near opposite approach, that of using international law to undercut a change in US domestic law. Specifically, in 2005, the US Department of Defense (DoD) made what we view to be a seismic change in the policy regarding an individual’s right of self-defence.3 Anew DoD Instruction changes self-defence from being an inherent, non-derogable and individual (as well as collective) right to only being a collective right. It specifically gives a commander the authority to limit an individual’s right of self-defence: ‘[U]nit commanders may limit individual self-defense by members of their unit’.4 At face value, a commander is now authorized to order a soldier passively to allow his or her own death if the commander believes it is necessary for mission accomplishment: a hero clause, if you will. We planned to argue, in part, that this change was inconsistent with customary international law and treaty law; however, we were never satisfied with our arguments as to why, for example, a state’s self-defence right under Article 51 of the United Nations Charter (UN Charter) was relevant to a debate over an individual soldier’s right to self-defence under US domestic law. Enter Defending Humanity. This book explored and developed the common jurisprudential underpinnings of international and domestic law, effectively undercutting the removal of a soldier’s inherent right of self-defence far better than we ever could.5 As part of this Journal of International Criminal Justice symposium on Defending Humanity, we would like to supplement Fletcher and Ohlin’s argument that the UN Charter, when read together with customary international law, contains an exception to the prohibition on a state’s use of force to allow unilateral humanitarian intervention in certain circumstances. Using the analysis of Defending Humanity as a springboard, we will argue that not on...See the full content of this document
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