Thursday, November 12, 2009
Few issues are both more central to and more elusive for the project of international law than identifying the conditions under which the use of armed force is justified. In Defending Humanity (Oxford, 2008), Fletcher & Ohlin join the debate on this issue with the provocative claim that international law has been impoverished by its neglect of the more developed doctrines of self-defense existing in domestic criminal law. The authors argue for and elaborate upon six-part model of “legitimate defense” that justifies the defensive use of force against attacks that are (1) overt, (2) unlawful, and (3) imminent; provided the defense is (4) necessary, (5) proportional, and (6) knowing or intentional.
The authors’ approach is especially effective when it reveals how international law scholarship has either ignored the lessons of criminal law principles or misread them to defend an overly narrow doctrine of self-defense. Too often, however, the authors’ argument is weakened by confusion surrounding how best to analogize the “self” of domestic self-defense for the international context. The authors’ approach to the problem of humanitarian intervention is especially troublesome: they argue that the international community may intervene when a state attacks its own population, but only if attacked people are a “nation.” The authors are too quick to reject a more inclusive theory of humanitarian intervention rooted in respect for human rights. This path too, is fraught with difficulty, but it better aspires to the promise of the book’s title: that of defending humanity, and not contested social constructs.