Military Members Claiming Self-Defence During Armed Conflict: Often Misguided and Unhelpful
Accountability for Violations of International Humanitarian Law: Essays in Honour of Tim McCormack (Routledge, 2016)
23 Pages Posted: 25 Jan 2014 Last revised: 2 Jun 2017
Date Written: January 23, 2014
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.
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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