Abstract
Prevention is a matter of limits, of gauging the difference between the acceptable (or, rather, the not unacceptable) and the unacceptable. Understanding the discrimination to be made here necessitates delving into a more or less distant past and this explains our approach in the preceding chapters. This analysis would be incomplete if it failed to question more precisely the dialectic between the military doctrines of the law and the responses made from outside the state. The horizon of this exercise is a depiction of a “context of justice,” a climate that anticipates and foreshadows the decisions of the present. It is part of the trajectory that leads toward the explanation of the justifications of the post-September 11 conflicts and of those doubtless looming on the horizon.
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Notes
Alberico Gentili, De Iure Belli Libri Tres (Oxford: Clarendon Press, 1933 [1612]) bk. 2, chapter XVII, “Of Those who Surrender,” § 355.
As Burleigh Cushing Rodick notes in The Doctrine of Necessity in International Law (New York: Columbia University Press, 1928), pp. 3–4.
Bertrand Badie and Pierre Birnbaum, The Sociology of the State (Chicago: Chicago University Press, 1983).
William Gerald Downey Jr., “The Law of War and Military Necessity,” The American Journal of International Law 47, no. 2 (April 1953): 253. The author is citing the comments of Eilhu Root, president of the American Society of International Law, in his address to the society’s annual convention on April 27, 1921.
Cited in Chris af Jochnick and Roger Normand, “The Legitimation of Violence: A Critical History of the Laws of War,” Harvard International Law Journal 35, no. 1 (1994): 64. The term Kriegsraison originates in the expression: “Kriegsraison geht vor Kriegsmanier,” the needs of war take priority over the rules of war. “Not kennt kein Gebot”: need is not constrained by any law.
Major Derek I. Grimles, Operational Law Handbook, 2005 (chapter 2: “Law of War”), p. 13.
John Murphy, The US and the Rule of Law in International Afffairs (Cambridge: Cambridge University Press, 2004), p. 219.
Rupert Ticehurst, “The Martens Clause and the Laws of Armed Conflict,” International Review of the Red Cross 317 (April 1997): 125–134.
See Robin Coupland, The SIrUS Project Towards a Determination of Which Weapons Cause “Superfluous Injury or Unnecessary Suffering,” International Committee of the Red Cross, 1997.
This category of the “abhorrent” seeks to be a translation of medicine into law by way of morality: Robin Coupland, “Abhorrent Weapons and ‘Superfluous Injury or Unnecessary Suffering’: from Field Surgery to Law,” British Journal of Medicine 315 (November 29, 1997): 1450–1452.
Robin Coupland presented a paper there around which thinking on these questions took shape. Robin Coupland, “The Effects of Weapons: Defining Superfluous Injury and Unnecessary Suffering,” Global Survival (1996): 3, A1.
More generally, it reflected bridges between bioethics and warfare. These were the subject of research extending beyond the question of the minimization of unnecessary suffering. Michael Gross, Bioethics and Armed Conflict Moral Dilemmas and of Medicine and War (Cambridge: MIT Press, 2006).
For a critique by an army lawyer who denounces the political nature of this criticism, takes the view that the Red Cross should not concern itself with this field, which is a matter for states alone, and contests the scientific approach of the study, see Major Donna Marie Verchio, “Just Say No! The SIrUS Project: Well-Intentioned, but Unnecessary and Superfluous,” Air Force Law Review 51 (2001): 183–228.
David Koplow, “Tangled Up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent Confrontations,” Georgetown Journal of International Law 36, no. 4 (Spring 2005): 707. See US Department of Defense, Directive no. 3000.3: Policy for Non-Lethal Weapons (July 9, 1996).
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© 2013 Ariel Colonomos and Éditions Denoël
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Colonomos, A. (2013). On Temperance. In: The Gamble of War. The Sciences Po Series in International Relations and Political Economy. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137018953_4
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