Military Members Claiming Self-Defence During Armed Conflict: Often Misguided and Unhelpful
Law School, University of Adelaide; Asia Pacific Centre for Military Law
Government of the Commonwealth of Australia - Royal Australian Air Force
January 23, 2014
Accountability for Violations of International Humanitarian Law: Essays in Honour of Tim McCormack, TMC Asser Press, Forthcoming
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
Date posted: January 25, 2014 ; Last revised: April 11, 2014