Reconceptualizing individual or unit self-defense as a combatant privilege
E. L. Gaston
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Harvard national security journal, Vol. 8, issue 2, 2017, p. 283-332
In conflicts like those in Afghanistan, Iraq, and other U.S. counterterrorism engagements worldwide, self-defense, and a related concept known as “hostile intent” (used to refer to more ambiguous, distant threats), are used to justify an increasingly large share of uses of force. Although all agree that soldiers have a right to defend themselves in armed conflict, the theoretical origin of this right and its scope are ambiguous. The more pervasive use of these doctrines, untethered to international humanitarian law (IHL), creates ambiguities for soldiers in practice and can undermine IHL accountability. Relying on case studies of four states’ practices (United States, United Kingdom, Germany, France) this Article demonstrates how the expanded use of self-defense and hostile intent in a greater number of use-of-force situations without clarifying its relationship with IHL principles has contributed to both overly broad and overly narrow interpretations in practice. This Article recommends anchoring the right to self-defense in IHL as part of the combatant’s privilege.