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The Use of Force against Individuals in War under International Law: A Social-Ontological Approach

The Use of Force against Individuals in War under International Law: A Social-Ontological Approach

Author: Ka Lok Yip
Publisher: Oxford University Press
ISBN: 9780198871699
Published In: April 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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Is it legal to kill, or capture and confine, a person in war? Is it relevant or wise to ask this question in the reality of war? What does this question actually mean in the labyrinth of overlapping international legal norms?

This book answers these challenges to the meaning, relevance, and wisdom of speaking about the 'legality' of the use of force against individuals in war by re-invigorating the connection between legal thought and the social world. Weaving together law, social theories, and actual practices, the book presents an interdisciplinary study that distinguishes between six concepts of 'legality' under public international law that generate tensions among different legal norms on the use of force against individuals in war and identifies the limits to the use of legal techniques to address these tensions.

Highlighting the limits to legal techniques in addressing the phenomenon of fragmentation serves not as an abnegation of the law itself but an invitation to a deeper level of its engagement through the prism of social ontology. The book theorises that human agents in war are always 'decentred' by social structures. Every use of force against individuals in war results from an interaction between agency and structures that are analytically distinct and potentially susceptible to regulation by different legal norms. Through theoretical exploration and empirical illustration with the Israeli-Palestinian conflict, it argues that the convergence of legal norms regulating the use of force against individuals in war leads to a more fundamental problem of the conflation of ontologies.

General Introduction

Chapter 1: The Legality of the Use of Force against Individuals in War Description of a Difficulty

I. Introduction

II. Legal Norms Relevant to the Use of Force against Individuals in War

III. Jurisprudence on the Relationship among Different Legal Norms Relevant to the Use of Force against Individuals in War

IV. Key Approaches to the Relationship among Different Legal Norms Relevant to the Use of Force against Individuals in War

V. Conclusion

Chapter 2: Six Concepts of Legality and their Disambiguation

I. Introduction

II. Vertical Legality

III. Horizontal Legality

IV. De-conflation of Different Concepts of Legality

V. Conclusion

Chapter 3: Verticalizing and Horizontalizing the Notion of Legality under International Human Rights Law

I. Introduction

II. The Layered Nature of Legality under IHRL for the Right to Life and the Right to Liberty

III. The Dimension of Vertical Legality under IHRL

IV. The Dimension of Horizontal Legality under IHRL

V. Conclusion

Chapter 4: Subjectivising and Objectivising the Legal Techniques for Establishing the Relationship among International Legal Norms

I. Introduction

II. Justifications for and Limits to the Use of Legal Techniques

III. Applying Lex Specialis to Establish the Relationship among Different Laws on the Use of Force against Individuals in War

IV. Applying Systemic Integration to Establish the Relationship among Different Laws on the Use of Force against Individuals in War

V. Conclusion

Chapter 5: Ontologising the Laws on the Use of Force against Individuals in War

I. Introduction

II. Social Ontology

III. The Ontological Presuppositions of LOAC and IHRL

IV. Three Patterns of Ontological Conflation

V. Conclusion

Chapter 6: Agents and Structures in the Field of Via Dolorosa

I. Introduction

II. Effects of Social Structures on the Practices of the Use of Force against Individuals in War

III. Effects of Human Agency on the Practices of the Use of Force in Armed Conflict and Occupation

IV. Convergence of Laws, Conflation of Ontologies

V. Conclusion

General Conclusion

Theoretical Implications

Methodological implications

Practical Implications

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