Just War and International Law: An Argument for a Deontological Approach to Humanitarian Law
26 Pages Posted: 19 May 2010 Last revised: 14 Mar 2016
Date Written: May 19, 2009
Abstract
This Article analyzes the Just War doctrine of civilian immunity. Section II gives a detailed account of the Just War doctrine, paying particular attention to the application of two aspects of Jus in Bello: proportionality and military necessity. Section III critiques the proportionality and military necessity principles by pointing to a commonly flawed implementation of these principles in international law and domestic military policies. This analysis concludes that the Just War doctrine has yet to be properly implemented. In response to this flaw, Section IV attempts to interject an empiricist utilitarian/consequentialist approach that the doctrines currently only partially utilize. Specifically, this Article applies Carl G. Hempel's Deductive-Nomological and Inductive-Statistical models of prediction to the principles, with the hope of rectifying the misgivings of current international law and domestic military regulation. In Section V, concluding that the “Hempelian fix” makes a dent, but does not fully solve the shortcoming, this Article suggests a deontological approach which aims to bypass the need for a utilitarian/consequentialist approach altogether: a blanket prohibition on civilian casualties and a backward-looking internal review system. In the end, having analyzed both the utilitarian/consequentialist and deontological approaches, the Article concludes that, not only is the deontological approach more compatible with natural law jurisprudence, it is also the more practical and straightforwardly implemented approach to humanitarian law.
Keywords: war, philosophy, military law, geneva convention, human rights, humanitarian law
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