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

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.

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