Controlling the Recourse to War by Modifying Jus in Bello

2009 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW, Forthcoming

29 Pages Posted: 27 Aug 2010

See all articles by Ryan Goodman

Ryan Goodman

New York University School of Law

Date Written: August 26, 2010

Abstract

According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct. The purported independence of the two domains – the ‘separation principle’ – remains unstable despite its historic pedigree. This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello. International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare. One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. These efforts – whether intended or not – risk suppressing ‘desirable wars’ and inspiring ‘undesirable wars.’ These recent developments also undercut humanitarian protections by undermining the mechanisms for compliance with legal norms on the battlefield.

Suggested Citation

Goodman, Ryan, Controlling the Recourse to War by Modifying Jus in Bello (August 26, 2010). 2009 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1666198

Ryan Goodman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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