Chapter

THE PRIVILEGE OF BELLIGERENCY AND FORMAL DECLARATIONS OF WAR

Richard V. Meyer

in Targeted Killings

Published in print March 2012 | ISBN: 9780199646470
Published online September 2012 | e-ISBN: 9780191738975 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199646470.003.0008
THE PRIVILEGE OF BELLIGERENCY AND FORMAL DECLARATIONS OF WAR

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This chapter argues that the blurring of the lines between domestic law and morality on the one side, and the law and morality of war on the other, is artificial and based upon a fundamental misunderstanding of the realm of combat. War, which is a much more definitive term than armed conflict, if it is to continue to exist in the human experience, must operate largely outside the realm of domestic criminal law and ordinary morality. The following changes to international law are proposed: With minor exceptions, privileged belligerency will be limited to the uniformed military, militias and populace (in the event of a levée en masse) of a state that has declared war publicly and officially. States may declare war against other states, non-state organizations, or individuals, provided these declarations comply with Articles 2(4) and 51 of the United Nations Charter. The International Court of Justice has the power to nullify declarations of war. To prove the need for these revisions, the chapter first explores the fundamental moral and legal differences between the ordinary human experience and armed combat. Next it briefly examines the confusing and problematic status quo versus the intended regime of war. Finally, it discusses the specifics of the above proposal, its merits and challenges.

Keywords: domestic law; morality; war; international law; privileged belligerency; armed combat

Chapter.  19274 words. 

Subjects: Public International Law

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