Chris O'Meara

Chapter 2 focuses on the meaning and content of necessity. It argues for the first time that there are two different ‘types’ of necessity. In so doing, this author proposes a novel taxonomy to distinguish between them. This distinction addresses, and better explains, the two principal and distinct concerns of necessity that are reflected in state practice, International Court of Justice jurisprudence and scholarship: (a) is military force required at all in the circumstances (an issue of ‘general necessity’), and (b) if so, where must such force be directed (an issue of ‘specific necessity’)? Without general necessity, the applicability of both specific necessity and proportionality is moot. Drawing on core principles of international humanitarian law, Chapter 2 provides a clearer and more workable understanding of necessity that highlights both the weaknesses in, and opportunities for, its operation.

Chapter 4 builds on the analysis of the previous chapters by considering how necessity and proportionality are adapted to apply to defensive action against NSAs. With a particular focus on international terrorism, including the ongoing Global Coalition intervention in Syria against Daesh and other terrorist groups, the potential and limitations of necessity and proportionality are brought to the fore. In particular, this chapter examines the position of the ‘host state’ (being the state in whose territory military action is taken), which includes a review of the controversial ‘unwilling or unable’ doctrine. The duration and geographical scope of the right of self-defence are also considered in this context. A worrying trend is identified regarding how states appear to take a more permissive attitude towards anti-terrorist operations. This state practice has serious implications for the meaningful application of proportionality, whilst highlighting the potential for specific necessit...

Academic and judicial consideration of the right of self-defence in international law has focused on the right as it applies to states (national self-defence). This approach represents only part of the picture, however. Little attention has been paid to how the right of national self-defence relates to, and interacts with, the right of military personnel and their units to defend themselves. Yet, this relationship is crucial to determine when and how a state may defend itself. This article highlights fundamental problems associated with the focus on national self-defence, which results in the fragmentation of international law. It offers some unified thinking regarding issues of attribution, the gravity and timing of attacks, the requirements of necessity and proportionality and armed attacks by non-state actors. The aim is to bridge the current disconnect.

United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

https://www.ejiltalk.org/united-states-missile-strikes-in-syria-should-international-law-permit-unilateral-force-to-protect-human-rights/

The on-going Syrian civil war calls for a re-evaluation of using force to protect human rights. This article does not rake over the much-debated issue of whether a right of humanitarian intervention exists as lex lata. Instead, it addresses the little reviewed normative issue of whether the right should exist in international law to support and reflect a pluralistic understanding of sovereignty. Despite advancements in international human rights law, international humanitarian law and international criminal law, this wider fabric of international law preserves Westphalian sovereignty and the principle of non-intervention. It denies any right of humanitarian intervention.

https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/should-international-law-recognize-a-right-of-humanitarian-intervention/BB33A4BD19815812A9E48FF5F271357E