Suchergebnisse

Proportionality functions as oneof the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lexl . . . silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in bello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This essay ends by framing the modern content of the proportionality principle that remains fully applicable as a matter of law even during in extremis situations.

Proportionality functions as one of the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lex.silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in bello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This essay ends by framing the modern content of the proportionality principle that remains fully applicable as a matter of law even during in extremis situations.

This short Essay describes the circularity of support between the ICRC and the Pre-Trial Chambers of the ICC. Its successive sections describe the problematic potential of extending the substantive coverage of Common Article 3 to encompass members of the same armed group who commit criminal acts against one another.' In particular, the Revised Commentary fails to address the due process ramifications of an enlarged Common Article 3, even as the development of the text documented by the readily available negotiating record warrants an alternative understanding. Lastly, the ICRC position could indicate a radical shift in the very design of the field of international humanitarian law.2 This Essay closes by restating the imperative balance between military pragmatism and humanitarian imperatives that are preserved by the careful blending of values within the laws and customs of warfare. While wholly appealing on humanitarian grounds, particularly on the facts presented in Ntaganda, the reconceived approach to Common Article 3 may well endanger the larger structure of international humanitarian law. The Revised ICRC Commentary omits any mention of these competing concerns.

This essay refocuses the debate over autonomous weapons systems to consider the potentially salutary effects of the evolving technology. Law does not exist in a vacuum and cannot evolve in the abstract. Jus in bello norms should be developed in light of the overarching humanitarian goals, particularly since such weapons are not inherently unlawful or unethical in all circumstances. This essay considers whether a preemptive ban on autonomous weapons systems is likely to be effective and enforceable. It examines the grounds potentially justifying a preemptive ban, concluding that there is little evidence that such a ban would advance humanitarian goals because of a foreseeable lack of complete adherence. The essay concludes by suggesting three affirmative values that would be served by fully vetted and field-tested technological advances represented by autonomous weapons. Properly developed and deployed, autonomous weapons might well advance the core purposes of jus in bello by helping the balance the twin imperatives of military necessity and humanitarian interests