Table Of ContentTHE LEGITIMATE USE OF MILITARY FORCE
Justice, International Law
and Global Security
Series Editor: Howard M. Hensel
As the global community enters the 21st century, it is confronted with a wide variety
of both traditional and non-traditional challenges to its security and even survival,
as well as unprecedented opportunities for global socio-economic development.
International law will play a major role as the international community attempts
to address these challenges and opportunities while, simultaneously attempting
to create a just and secure global order capable of protecting and promoting the
common good of the whole of mankind.
The Ashgate Series on Justice, International Law and Global Security is designed
to encourage and highlight analytical, scholarly works that focus on the ways
in which international law contributes to the management of a wide variety of
contemporary challenges and opportunities, while, simultaneously, helping to
promote global justice and security.
Also in the series
Why Not Preempt?
Security, Law, Norms and Anticipatory Military Activities
Rachel Bzostek
ISBN: 978-0-7546-7057-5
Also of interest
The Law of Armed Confl ict
Constraints on the Contemporary Use of Military Force
Edited by Howard M. Hensel
ISBN: 978-0-7546-4543-6 (HB)
ISBN: 978-0-7546-7113-8 (PB)
The Legitimate Use of
Military Force
The Just War Tradition and the Customary Law
of Armed Confl ict
Edited by
HOWARD M. HENSEL
Air War College, USA
© Howard M. Hensel 2008
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
Howard M. Hensel has asserted his right under the Copyright, Designs and Patents Act,
1988, to be identifi ed as the editor of this work.
Published by
Ashgate Publishing Limited Ashgate Publishing Company
Gower House Suite 420
Croft Road 101 Cherry Street
Aldershot Burlington, VT 05401-4405
Hampshire GU11 3HR USA
England
Ashgate website: http://www.ashgate.com
British Library Cataloguing in Publication Data
The legitimate use of military force : the just war
tradition and the customary law of armed confl ict. -
(Justice, international law and global security)
1.Military ethics 2. War (International law) 3. Just war
doctrine
I. Hensel, Howard M.
172.4'2
Library of Congress Cataloging-in-Publication Data
The legitimate use of military force : the just war tradition and the customary law of
armed confl ict / Edited by Howard M. Hensel.
p. cm. -- (Justice, international law and global security)
Includes index.
ISBN: 978-0-7546-4980-9
1. Military ethics 2. Just war doctrine. I. Hensel, Howard M.
U22.L37 2007
172'42--dc22
2007027817
ISBN: 978-0-7546-4980-9
Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall.
Contents
List of Contributors vii
Introduction 1
Howard M. Hensel
PART I: PERSPECTIVES ON JUST WAR DOCTRINE,
INTERNATIONAL RELATIONS, AND ARMED CONFLICT
1 Theocentric Natural Law and Just War Doctrine 5
Howard M. Hensel
2 Anthropocentric Natural Law and its Implications for International
Relations and Armed Confl ict 29
Howard M. Hensel
3 The Rejection of Natural Law and its Implications for International
Relations and Armed Confl ict 63
Howard M. Hensel
PART II: INTERNATIONAL LAW AND THE CUSTOMARY
PRINCIPLES UNDERPINNING THE LAW OF ARMED
CONFLICT
4 Preemption and Preventive War 99
Gregory A. Raymond and Charles W. Kegley, Jr
5 The Development of International Humanitarian Law and the
Continued Relevance of Custom 117
Jean-Marie Henckaerts
6 The Martens Clause and Military Necessity 135
Mika Nishimura Hayashi
7 The Principle of Distinction: Beyond an Obligation of Customary
International Humanitarian Law 161
Jean-François Quéguiner
8 The Principle of Proportionality 189
A.P.V. Rogers
vi The Legitimate Use of Military Force
9 Hors de Combat: Post-September 11 Challenges to the Rules 219
Avril McDonald
10 Occupation Responsibilities and Constraints 263
Charles Garraway
11 Conclusion 283
Howard M. Hensel
Index 289
List of Contributors
Charles Garraway, Visiting Professor of Law, King’s College, London and
Associate Fellow, Chatham House, United Kingdom
Mika Nishimura Hayashi, Associate Professor, International Law, Graduate
School of International Cooperation Studies, Kobe University, Japan
Jean-Marie Henckaerts, Legal Advisor, International Committee of the Red
Cross, Switzerland
Howard M. Hensel, Professor of Politico-Military Affairs, Air War College,
United States
Charles W. Kegley Jr., Pearce Distinguished Professor of International Relations
Emeritus, University of South Carolina, United States
Avril McDonald, Research Fellow, TMC Asser Institute for International Law and
Managing Editor, Yearbook of International Humanitarian Law, Netherlands
Jean-François Quéguiner, Legal Advisor, International Committee of the Red
Cross, Switzerland
Gregory A. Raymond, Frank Church Professor of International Relations, Boise
State University, United States
A.P.V. Rogers, Senior Fellow, Lauterpacht Centre for International Law,
University of Cambridge, United Kingdom
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Introduction
Howard M. Hensel
When is it appropriate to resort to the use of armed force in the resolution of
disputes within and between states? If the use of force is, indeed, deemed to be
legitimate, what constraints, if any, should govern its actual use? The purpose of
this volume is to attempt to provide some perspective as we attempt to address
these timeless and vexing questions.1
Part I of the volume, entitled “Perspectives on Just War Doctrine, International
Relations, and Armed Confl ict” examines a variety of Western philosophical
perspectives concerning these issues. In Chapter 1, I attempt to lay the foundations
for the volume by analyzing and assessing the theocentric approach to natural
law and its implications for the concept of just war. Utilizing the framework
of analysis developed by proponents of theocentric natural law for evaluating
whether to resort to the use of armed force, as well as for determining the factors
that should regulate its actual employment, Chapter 1 examines the ways in which
the analytical categories embodied within that framework were interpreted and
applied, yielding, in turn, the basic criteria for jus ad bellum and jus in bello. These
criteria would thereafter serve as the baseline for just war doctrine. Continuing
this analysis in Chapters 2 and 3, I examine the way in which subsequent Western
thinkers who rejected theocentric natural law as the basis for their respective
philosophical approaches, interpreted and applied the basic analytical framework
and its inherent categories of analysis developed by proponents of theocentric
n atural law, yielding, in turn, respective criteria for the use of armed force that
were often quite different in both spirit and specifi cs from the just war criteria
originally delineated by adherents to theocentric natural law.
Part II of the volume, entitled “International Law and the Customary
Principles Underpinning the Law of Armed Confl ict,” examines the contemporary
legal constraints governing the use of armed force both within and among states.
In Chapter 4, Gregory Raymond and Charles Kegley explore the distinction
between preemption and preventive war within the context of anticipatory self-
defense, as these concepts have developed throughout history. This analysis is
framed within the context of both the jus ad bellum criteria developed within
the Western just war tradition, as well as within the context of the principles
underpinning contemporary international law. Finally, they examine how these
concepts have been applied in addressing the national security challenges that we
confront at the dawn of the twenty-fi rst century.
Chapter 5, by Jean-Marie Henckaerts, introduces the subsequent fi ve chapters
in his overview and assessment of conventional and customary international
humanitarian law. Mika Hayashi follows in Chapter 6 with her analysis and
assessment of the relationship between humanitarian concerns, as refl ected in
