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, TMC Asser Press, Forthcoming

23 Pages Posted: 25 Jan 2014 Last revised: 11 Apr 2014

Ian Henderson

Law School, University of Adelaide; Asia Pacific Centre for Military Law

Bryan Cavanagh

Government of the Commonwealth of Australia - Royal Australian Air Force

Date Written: January 23, 2014

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.

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

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: https://ssrn.com/abstract=2384261

Ian Scott Henderson (Contact Author)

Law School, University of Adelaide ( email )

Australia

Asia Pacific Centre for Military Law

Melbounre
Australia

HOME PAGE: http://www.apcml.org

Bryan Cavanagh

Government of the Commonwealth of Australia - Royal Australian Air Force ( email )

Canberra
Australia

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