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Introduction: The Future of Restrictivist Scholarship on the Use of Force

  • JÖRG KAMMERHOFER

Extract

No international lawyer bats more than the proverbial eyelid nowadays at states intervening militarily in states which host non-state armed groups. Neither drone strikes nor what used to be called ‘invasion’ quicken the pulse of the jus ad bellum lawyer; this is now a matter for humanitarians; the ‘how’ matters much more than the ‘whether’. We have become inured to relatively small-scale military interventions. Those who remember that 20 years ago international lawyers were more likely to find such actions illegal than justified should (but do not) collectively raise an eyebrow at this rapid change.

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1 W. Shakespeare, Coriolanus, Act 1, Scene 1.

2 Definition of Aggression, G.A. 3314 (XXIX), UN Doc. A/RES/3314 (14 December 1974), Art. 3(a).

3 Garcia-Salmones, M., ‘Faith, Ritual and Rebellion in 21st Century (Positivist) International Law’, (2015) 26 EJIL 537, at 548.

4 Kammerhofer, J., ‘The Resilience of the Restrictive Rules of Self-Defence’ in Weller, M. (ed.), The Oxford Handbook of the Use of Force in International Law (2015), 627, at 629.

5 Kammerhofer, supra note 4, at 632.

6 J. Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (2010), 41 (emphasis removed and added).

7 Raphaël van Steenberghe's writings are a welcome exception.

8 de Hoogh, A., ‘Restrictivist Reasoning on the Ratione Personae Dimension of Armed Attacks in the Post 9/11 World’, (2016) 29 LJIL 19, at 39.

9 van Steenberghe, R., ‘The Law of Self-Defence and the New Argumentative Landscape on the Expansionists’ Side’, (2016) 29 LJIL 43, at 44.

10 He is careful to point out that state practice should be seen in a wide sense – evidencing both behaviour and opinio juris – and that we are thus actually talking about customary international law.

11 Banks, W. and Criddle, E., ‘Customary Constraints on the Use of Force: Article 51 with an American Accent’, (2016) 29 LJIL 67, at 68.

12 Ibid., at 87.

13 Ibid., at 73.

14 Ibid., at 93.

15 Martineau, A.-C., ‘Concerning Violence. A Post-Colonial Reading of the Debate on the Use of Force’, (2016) 29 LJIL 95 , at 101.

16 Ibid., at 109.

17 Shultz, G., ‘Low-Intensity Warfare: The Challenge of Ambiguity’, 1986 (March) 86 Department of State Bulletin 15, at 17.

* Senior Research Fellow, Hans Kelsen Research Group, University of Freiburg, Germany [].

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