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European Journal of International Law
Article . 2019 . Peer-reviewed
License: OUP Standard Publication Reuse
Data sources: Crossref
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SSRN Electronic Journal
Article . 2019 . Peer-reviewed
Data sources: Crossref
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The Facilitative Function of Jus in Bello

Authors: Eliav Lieblich;

The Facilitative Function of Jus in Bello

Abstract

In a recent book, Adil Ahmad Haque attempts to reconcile between jus in bello and ‘deep morality,’ by constructing international humanitarian law (IHL) as a prohibitive system, the constitutive aim of which is non-consequentialist: to ‘serve’ combatants by providing them with rules that if followed would allow them to better conform to their moral obligations. After situating Haque’s approach within the current debate between traditional and revisionist just war theorists, this review essay asks whether constructing IHL as a prohibitive set of norms is indeed sufficient to reconcile it with morality. By utilizing insights from legal realism, I argue that when determining whether law prohibits or permits, it is not sufficient to analyse pure legal concepts but, rather, we have to ask how law functions. This analysis reveals that IHL can be facilitative of action – meaning, of war – even if it is construed as formally prohibitive. This, in turn, calls for two conclusions: on the ethical level, when considering the morality of IHL, its facilitative function should be taken into account. On the legal level, recognizing the facilitative nature of IHL might assist us in answering key unresolved questions – namely, whether the material, spatial, and temporal thresholds for the application of IHL should be high or low.

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
3
Average
Average
Average
hybrid
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