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Revisiting the Concept of Defence in the Jus Ad Bellum: The Dual Face of Defence

Revisiting the Concept of Defence in the Jus Ad Bellum: The Dual Face of Defence

Author: Johanna Friman
Publisher: Hart Publishing
ISBN: 9781509906970

Published In: April 2017
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509931286

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The purpose of the jus ad bellum is to draw a line in the sand: thus far, but no further. In the light of modern warfare, a State should today have an explicitly recognised and undisputed right of delimited unilateral defence not only in response to an occurring armed attack, but also in interception of an inevitable or imminent armed attack.

This book, however, makes it evident that unilateral interception is not incontestably compatible with the modern right of self-defence in Article 51 of the UN Charter. Then again, unilateral defence need not forever be confined to self-defence only, wherefore the book proposes that the concept of defence may best be modernised by a clear legal division into responsive and interceptive defence.

Since both threat and use of force are explicitly prohibited in Article 2(4) of the UN Charter, the book further recommends that both responsive and interceptive defence should be explicitly excepted from this prohibition in Article 51 of the UN Charter. The modern jus ad bellum should thus legally recognise a dual face of defence: responsive self-defence if an armed attack occurs, and interceptive necessity-defence if a grave and urgent threat of an armed attack occurs.

For without a clarifying and modernising revision, the concept of defence will become irreparably blurred until ultimately completely dissolved into the ever shifting sands of war.

1. The Faces of War

I. The Faces of War-Prologue

II. The Dual Face of Defence-Opening Remarks

2. The First Face of Defence: Self-defence

I. The Legal Evolution of the Concept of Self-defence

II. The Concept of Self-defence

III. Concluding Remarks

3. The Second Face of Defence: Necessity-defence

I. The Legal Evolution of the Concept of Necessity

II. The Concept of Necessity-defence

III. Concluding Remarks and Explanatory Memorandum

4. Whitherward Warfare?