Abstract

http://ssrn.com/abstract=2384261
 


 



Military Members Claiming Self-Defence During Armed Conflict: Often Misguided and Unhelpful


Ian Henderson


Asia Pacific Centre for Military Law

Bryan Cavanagh


Royal Australian Air Force

January 23, 2014

Accountability for Violations of International Humanitarian Law: Essays in Honour of Tim McCormack, TMC Asser Press, Forthcoming

Abstract:     
The Law of Armed Conflict (LOAC) reflects a balance between military necessity and humanity. Potentially upsetting this balance is an apparent trend towards relying on self-defence under criminal law as a justification for the use of force by military members during armed conflicts. This chapter argues that this trend is based on a misunderstanding of the scope self-defence when applied in light of the combatant’s privilege. The chapter also cautions against the conflation of the requirements of self-defence and LOAC and analyses how self-defence operates with respect to precautions in attack, a ‘duty to retreat’, prohibited weapons and military orders.

This paper was awarded a 'Certificate of Merit' by the Lieber Society in the 2014 Richard R. Baxter Military Prize for exceptional writing in English by an active member of the regular or reserve armed forces.

Number of Pages in PDF File: 23

Keywords: armed conflict, IAC, NIAC, self defence, self defense, combatant, combatant's privilege, belligerent privilege, Rome statute, attack, collateral damage, incidental injury

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Date posted: January 25, 2014 ; Last revised: April 11, 2014

Suggested Citation

Henderson, Ian and Cavanagh, Bryan, Military Members Claiming Self-Defence During Armed Conflict: Often Misguided and Unhelpful (January 23, 2014). Accountability for Violations of International Humanitarian Law: Essays in Honour of Tim McCormack, TMC Asser Press, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2384261

Contact Information

Ian Scott Henderson (Contact Author)
Asia Pacific Centre for Military Law ( email )
Australia
HOME PAGE: http://www.apcml.org
Bryan Cavanagh
Royal Australian Air Force ( email )
Canberra
Australia
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