{"title":"Pillars not Principles: The Status of Humanity and Military Necessity in the Law of Armed Conflict","authors":"E. Winter","doi":"10.1093/jcsl/kraa001","DOIUrl":null,"url":null,"abstract":"\n Humanity and military necessity are often said to be ‘principles’ of the law of armed conflict (LOAC). However, for Dworkin, a concept must satisfy certain criteria in order to earn the status of a principle. First, principles carry different weightings to each other so that one may triumph in the event of a clash. Secondly, principles are capable of superseding positive rules so that coherence in the regime over which they preside is maintained. This article contends that neither criterion is satisfied by humanity or military necessity. Consequently, it argues that these concepts are not truly principles and that, instead, they are better viewed as ‘pillars’ of the LOAC.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":1.1000,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jcsl/kraa001","citationCount":"2","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"JOURNAL OF CONFLICT & SECURITY LAW","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1093/jcsl/kraa001","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"LAW","Score":null,"Total":0}
引用次数: 2
Abstract
Humanity and military necessity are often said to be ‘principles’ of the law of armed conflict (LOAC). However, for Dworkin, a concept must satisfy certain criteria in order to earn the status of a principle. First, principles carry different weightings to each other so that one may triumph in the event of a clash. Secondly, principles are capable of superseding positive rules so that coherence in the regime over which they preside is maintained. This article contends that neither criterion is satisfied by humanity or military necessity. Consequently, it argues that these concepts are not truly principles and that, instead, they are better viewed as ‘pillars’ of the LOAC.
期刊介绍：
The Journal of Conflict & Security Law is a thrice yearly refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict (international humanitarian law) and collective security law. The Journal covers the whole spectrum of international law relating to armed conflict from the pre-conflict stage when the issues include those of arms control, disarmament, and conflict prevention and discussions of the legality of the resort to force, through to the outbreak of armed conflict when attention turns to the coverage of the conduct of military operations and the protection of non-combatants by international humanitarian law.
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