LENS Essay Series: “All’s Fair in Love and Wars of Self-Defense: In Support of the ‘Conservative Approach’ to Jus ad Bellum”
In today’s post we’re pleased to introduce the newest addition to LENS’s online “Essays on Law, Ethics and National Security Series.” Today’s brilliant contribution, “All’s Fair in Love and Wars of Self-Defense: In Support of the ‘Conservative Approach’ to Jus ad Bellum,” is by Mark M. Rothrock, a Duke Law 3L (who also commands a tank company in the United States Marine Corps Reserve, and has been selected by the Corps for promotion to major).
As you’ll see in his essay, Rothrock directly addressees some of the most controversial use of force issues that have confounded international law experts in recent years. He gives us a lot to ponder, particularly as he puts those issues in international law’s larger and deeper idealist/realist debate.
Moreover, Rothrock tackles what I’ve long believed to be questions deserving of more scholarship in light of the Nuclear Weapons case. For example, what should we really expect from nations when their very existence is at stake? To what extent (if at all) can international law be reconciled to that unique circumstance, to include situations where weapons of mass destruction are not necessarily involved?
In short, Rothrock’s essay is a truly thought-provoking ‘read’. Parenthetically, that Rothrock is able to address as much as he does as well as he does in such relatively brief essay is really amazing.
Anyway, here’s a preview Mr. Rothrock provides us for his remarkable essay:
Abstract
The application of jus ad bellum principles to wars of self-defense is a continuing subject of debate among legal scholars. On the one hand, scholars holding the ‘majority view’ argue that the principles of necessity and proportionality govern all self-defense actions, such that victim states may never respond to aggression with all-out war. Other scholars–those holding the ‘conservative view’–assert that self-defense actions must be divided into two categories: those requiring a response short-of-war and those requiring all-out war to deter aggression.
In the former category, conservative scholars apply jus ad bellum’s principles in much the same way as those holding the majority view. However, in the latter category–where an existential threat to the victim state demands a full-scale military response–those holding the conservative view assert that the principle of proportionality no longer applies and that a victim state may carry on war against the aggressor until the UN Security Counsel intervenes or the aggressor capitulates.
This essay examines the majority and conservative views and argues that the latter offers the better approach to jus ad bellum because it (1) renders the body of ICJ case-law more coherent and (2) makes states’ continued compliance with the international legal regime more likely in a world where existential threats exist and where there is no global hegemon to enforce international law.
The essay proceeds by first outlining the general principles of jus ad bellum along with the basic tenets of the majority view. Next, it describes the conservative approach taken by Yoram Dinstein and other scholars.
Then, it compares the two approaches and uses ICJ case-law and realist principles of international relations scholarship to justify why the conservative view’s framework is the best approach for preserving jus ad bellum’s legitimacy in an ‘anarchic’ world. Finally, it identifies several critiques of the conservative approach, addresses each, and concludes that the conservative view weathers them well.
Again, I urge you to read the full essay found here. Also, take a few moments to learn a bit about Mr. Rothrock (another name you’ll want to remember!):
Biography
Mark M. Rothrock (J.D. 2020) is a third-year law student at Duke University School of Law. Born and raised in Midway, North Carolina, Mark graduated from the University of North Carolina at Chapel Hill with honors in 2010. He also received a master’s degree in political science from Columbia University in 2017.
After college, Mark served on active duty in the United States Marine Corps before transitioning into the reserve component in 2017. He currently serves as the commanding officer for Company A, 4th Tank Battalion, 4th Marine Division, and was selected for promotion to major in April 2020.
While at Duke, Mark was elected Managing Editor for Volume 69 of the Duke Law Journal. After graduation, he will clerk on the United States District Court for the Eastern District of North Carolina and the United States Court of Appeals for the Sixth Circuit. Afterward, he plans to pursue a career in private practice in Raleigh, North Carolina.
The views expressed in the Essays on Law, Ethics and National Security Series do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
