Before the abyss : reshaping international humanitarian law to suit the ends of power
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Israel law review, Vol. 43, no. 2, 2010, p. 414-456
In the increasingly legalized landscape in which armed conflicts are now waged, international humanitarian law (IHL) has become an integral and ever more central part of military strategy. States can and do use it to gain advantage over their adversaries, but must also contend with challenges that arise when it is wielded against them. In their efforts to respond to these challenges official and unofficial advocates of State powers have advanced modes of argumentation which question the fundamental structure of IHL. This article takes issue with one such argument that mobilizes the theologico-political principle of the "lesser-evil" to conclude that acts which are absolutely prohibited under IHL should nevertheless be deemed legally permissible when their foreseen consequences are less harmful than lawful alternatives. The article demonstrates that this argument threatens to blur IHL's sharp boundaries and expand its zone's of elasticity thereby undermining its structural principles. More specifically, the article maintains that the argument in question rests on exaggerated faith in the judgment of belligerent parties, that it fails on its own utilitarian logic and that it ignores deontological reasoning fundamental to IHL. The article contends that accepting this argument would severely compromise IHL's capacity to limit violence and preserve human dignity and therefore advocates that it be rejected.
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