Published by De Gruyter

Volume 7 Issue 1 - The Excessive Use of Force

January 2006

Issue of Theoretical Inquiries in Law

Contents
Journal Overview

Article

December 8, 2005

Power in War

Martin van Creveld

Page range: 1-8

Abstract

The nature of war has been widely misunderstood. Far from being the continuation of policy, as Clausewitz and his present day "neorealist" followers think, in many ways it follows the rules of sports. In particular, the resemblance to sports ensures that, in a long conflict, in which the strong beat down the weak, the former will lose strength, whereas the latter will gain it. This logic has profound implications for counterinsurgency operations, including those ongoing in Iraq.

December 8, 2005

Iraq and the Use of Force: Do the Side-Effects Justify the Means?

Robert Cryer, A.P. Simester

Page range: 9-41

Abstract

To say that the matter of the legality of the armed conflict against Iraq in 2003 was divisive is an understatement. The primary justification given by the UK government for the lawful nature of the Iraq war (2003) was an implied mandate from the Security Council. The implied mandate was said to be derived from a combination of Security Council Resolutions 678 and 1441. Many international lawyers remain unconvinced that such a mandate can be inferred from those resolutions. There is agreement among both supporters and opponents of the war in Iraq that Saddam Hussein’s regime had an appalling human rights record. This was known to the coalition governments; indeed, Tony Blair expressly made the "moral case" for war on the basis of Hussein’s human rights violations. The legal justifications offered for the conflict by the UK government, however, did not refer to humanitarian intervention. This paper investigates whether it is possible that, despite the fact that the justification was not raised by the UK, it can provide a defence to any claims that the UK acted unlawfully, or that individuals committed an international crime, by initiating the attack on Iraq.

December 8, 2005

Ends, Means, Side-Effects, and Beyond: A Comment on the Justification of the Use of Force

David Enoch

Page range: 43-57

December 8, 2005

Off Limits? International Law and the Excessive Use of Force

Jan Klabbers

Page range: 59-80

Abstract

This paper aims to explore whether there are any legal limits to the use of force, in particular when force is used (as it so often is) for political reasons. How plausible is it to expect people to limit their options when they feel that what they’re doing paves the way towards paradise? In this light, much of the law of armed conflict would seem to be inadequate, based as much of it is on the premise that force is non-political. To the extent then that limits are conceivable, these may stem from the individual morality of those engaged in battle rather than from any grand legal designs.

December 8, 2005

Excessive Force in War: A "Golden Rule" Test

Lionel K. McPherson

Page range: 81-95

Abstract

The use of excessive force in war is an all-too-familiar phenomenon that resists an obvious philosophical solution. A principle that prohibits disproportionate use of force is commonly recognized. Yet I argue that an adequate proportionality principle is more difficult to formulate than may appear. There are too many morally relevant considerations to be weighed — especially harms to combatants versus noncombatants, depending on which side they are on — and we have no clear idea how to weigh them. These difficulties are avoided through the dominant understanding of proportionality codified in international law and military practice, which rules out only attacks that intentionally target civilians or that involve negligence in targeting or conduct. We should find it harder to deny that use of force can be excessive despite conforming to these narrow constraints. Specifically, we can clearly identify as excessive the use of force in pursuit of unjust goals. This will still leave a range of hard cases in which there is a just cause for war. For these cases, I propose a "golden rule" test of the sincerity of deliberation about whether a use of force would be excessive. Relying on narrow constraints that would govern use of force in war can be morally worse than not having them. The golden rule test can help to direct us toward broader, reasonable moral considerations regarding excessive force.

December 8, 2005

Is International Humanitarian Law Lapsing into Irrelevance in the War on International Terror?

Dan Belz

Page range: 97-130

Abstract

This article uses an economic narrative to examine the theoretical adequacy of applying humanitarian law to the regulation of the war on international terror. I will argue that problems inherent in collective action hinder the ability of this law to generate an optimal level of global security, and that the absence of the element of reciprocity lowers states’ compliance with it. The paper discusses factors such as audience costs, negative externalities of public conscience, NGOs’ activities, and the promotion of the humanitarian approach toward humanitarian law in international bodies and courts as helping to mitigate these phenomena. A controversy between states concerning the application of humanitarian law to the war on international terror, however, might prevent these factors from offsetting the decline in the status of humanitarian law. Humanitarian law is therefore at risk of lapsing into irrelevance in this war.

December 8, 2005

Use of Force in Protecting Property

Joshua Getzler

Page range: 131-166

Abstract

A long-standing common-law policy holds that anyone may lawfully use force to repel or arrest a criminal threatening property, and a fortiori that force may be used to defend one’s own property. But there are limits to these powers. In cases where some amount of violence is justified but excessive force is used, some common-law jurisdictions will deny any defence to murder. Killing through excessive force is neither justified nor excused. Other jurisdictions will allow a partial defence, excusing from the fullest penalty and reducing the offence to manslaughter or unlawful homicide, on the ground that the actor should be punished for a grievous miscalculation. By analyzing the relationships between persons and property and investigating the historical development of self-help doctrines, the principles defining excessive force here may be reduced to four. First, property cannot easily be conceived as a value worth protecting by force where there is no accompanying threat to the person. Second, the law may nonetheless see a presumptive identity between an owner’s person and his property which is external to his person, so that violent defence of property becomes justified even without a threat to bodily or personal safety. Third, intentionality and purpose play an important role in attributing legal blame for excessive force in protecting property, and the test of allowable quantum of force is not objective. Finally, the legal and ethical issues are transformed when we move from individual to collective property. Judgments concerning state and international legality regarding excessive force may derive only limited guidance from the contours of criminal law and private law. Yet, much of international conflict today is carried out by private actors who do not wear uniforms or wrap themselves in the shield of state immunity, and the domestic legal dimension thus begins to have purchase on issues of excessive force in war and communal conflict.

December 8, 2005

Excessive Use of Force as a Means of Social Exclusion: The Forced Eviction of Squatters in Israel

Neta Ziv

Page range: 167-197

Abstract

This article discusses the legal concept of excessive use of force by analyzing a particular incident that took place in Israel in the summer of 1997: eighty families, faced with dire housing needs, squatted in vacant apartments in an immigrant absorption center in the town of Mevasseret Zion near Jerusalem. After a period of failed attempts to persuade the families to leave the apartments peacefully, the police moved to evacuate the families, and did so by use of massive force. In the article I describe the violent measures used by the State (police), and analyze the media portrayal of the squatting and the evacuation. I argue that both these forceful measures and the media portrayal of the squatting and evacuation cumulatively took part in constructing the squatters as criminal deviants rather than political protesters. I claim further that we should understand the concept of use of force not only as a means to achieve certain ends by the state, but also as a mechanism through which the state constructs a social problem and presents it in a manner beneficial to its own interests. Excessive use of force, in this sense, is not just a disproportionate response to a real or perceived threat posed by an individual or group, but a means by which the state fosters a belief that the individual or group present some danger, which must be tackled through the use of a certain level of force. By drawing a line between the legitimate (that is, not excessive) and illegitimate (defined as excessive) use of force, the state affirms its monopoly on violence, which ultimately can be used to suppress political resistance.

December 8, 2005

The Use of Force Beyond the Liberal Imagination: Terror and Empire in Palestine, 1947

Shai Lavi

Page range: 199-228

Abstract

The question of the use of force and its relation to political power has resurfaced in an era of terror attacks and wars against terror. The liberal conceptualization of this relation is limited by the bipolar understanding of force as either legitimate or illegitimate. Turning to the history of the Irgun, a Jewish underground movement, and its struggle against the British Empire in 1947 Palestine, this article seeks to expand the understanding of force beyond the liberal paradigm. The article offers a new model for understanding the use of force by the liberal nation-state and distinguishes between four different modes of force: violence, legality, terror, and empire. Whereas the liberal paradigm is limited to a conception of force as either justified and, hence, just (legality), or unjustified and, hence, unjust (violence), one may think of two additional forms of force, which, at first, may seem paradoxical: the unjust but justified force of terror and the force of empire, which is just but not in need of justification. Rather than using these forms as stable categories, the article seeks to understand the ways in which the uses of force became destabilized in times of political contestation. The article concludes by pointing out the broader implications of this model for the political analysis of the liberal nation-state and its use of force.

December 8, 2005

Justification Between Positivism and Decision

Roy Kreitner

Page range: 229-254

December 8, 2005

Divine Spirit and Physical Power: Rabbi Shlomo Goren and the Military Ethic of the Israel Defense Forces

Arye Edrei

Page range: 255-297

Abstract

The renewal of Jewish sovereignty in 1948 created a grave challenge to Jewish tradition. As a system that was constructed in exile for a non-sovereign society, Jewish law was lacking "laws of state." The legitimacy of military action and the distinction between just and unjust wars are prime examples of fundamental issues that Jews did not have to confront for a very long period of time. This article examines contemporary Jewish legal responses to the challenges posed by the creation of the Israeli military. It focuses on the efforts of Rabbi Shlomo Goren, the first Chief Rabbi of the Israel Defense Forces, to create a modern corpus of Jewish law and ethics relating to war and the military. The Diaspora-based rabbinic literature seemed to oppose the use of force, reinterpreting Biblical references to military heroism as allegorical expressions of valor in the study of Torah. In an attempt to create an approach that legitimized the use of force while, at the same time, maintaining the rabbinic moral compunction regarding reliance on force, Rabbi Goren’s innovative corpus integrated Biblical and rabbinic sources, as well as pre-rabbinic apocryphal and historical sources. His writings on the subject are studied on a historical level, trying to uncover the various personalities and ideological positions to which he reacted. Rabbi Goren’s approach is examined through an analysis of his views on the proper treatment of the enemy and on the Peace for Galilee War in Lebanon. He advocated a balance between power and spirit, a balance that is also reflected in the personal internal harmony of Rabbi Goren himself: a merger of two worlds — the traditional student of the rabbinic study hall and the modern Jewish military officer — worlds by which he was influenced, between which he was torn, and that he tried to synthesize.

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Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

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