Just war in international law : an argument for a deontological approach to humanitarian law
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Buffalo human rights law review, Vol. 16, 2010, p. 237-288
This Article will analyze the Just War doctrine of civilian immunity. Section II will give a detailed account of the Just War doctrine, particularly the application of two aspects of jus in bello: proportionality and military necessity. Section III will critique a commonly flawed implementation of the proportionality and military necessity principles in international law and domestic military policies. This analysis concludes that the Just War doctrine has yet to be properly implemented. In response to this flaw, Section IV will interject an empiricist consequentialist approach that the doctrines currently only partially utilize. Specifically, this Article will apply Carl G. Hempel's Deductive-Nomological and Inductive-Statistical models of prediction to the principles to attempt to rectify the misgivings of current international law and domestic military regulation. In Section V, concluding that the "Hempelian fix" does help, but does not fully solve the shortcoming, this Article will suggest a deontological approach that aims to bypass a consequentialist approach altogether: a blanket prohibition on civilian casualties and a backward-looking internal review system. In the end, having analyzed both the consequentialist and deontological approaches, the Article will conclude that, not only is the deontological approach more compatible with natural law jurisprudence, it is also a more practical and easily implemented approach to humanitarian law.