War, aggression, and self-defence / Yoram Dinstein.

Format:

Book

Author/Creator:

Dinstein, Yoram, author.

Language:

English

Subjects (All):

Aggression (International law).

War (International law).

Self-defense (International law).

Physical Description:

1 online resource (xxv, 349 pages) : digital, PDF file(s)

Edition:

Fourth edition.

Other Title:

War, Aggression & Self-Defence

Place of Publication:

Cambridge : Cambridge University Press, 2005.

System Details:

text file

PDF

Summary:

Yoram Dinstein's seminal textbook is an essential guide to the legal issues of war and peace, armed attack, self-defence and enforcement measures taken under the aegis of the Security Council. This fourth edition incorporates new material on the wars in Afghanistan and Iraq, response to armed attacks by terrorists, recent resolutions adopted by the Security Council, and the latest pronouncements of the International Court of Justice. In addition, several new sections consider consent by States to the use of force (as expressed either ad hoc or by treaty); an armed attack by non-State actors; the various phases in the Gulf War up to the occupation of Iraq in 2003 and beyond; and immunities from jurisdiction. With many segments being rewritten to reflect recent State practice, this book remains a comprehensive and highly readable introduction to the legal issues surrounding war and self-defence. An indispensable tool for students and practitioners.

Contents:

Part I The legal nature of war

1 What is war? 3

A The definition of war 3

(a) The numerous meanings of war 3

(b) An analysis of Oppenheim's definition of war 5

i Inter-State and intra-State wars 5

ii War in the technical and in the material sense 9

iii Total wars, limited wars and incidents 'short of war' 11

iv War as an asymmetrical phenomenon 14

(c) A proposed definition of war 15

B Status mixtus 15

(a) Peacetime status mixtus 16

(b) Wartime status mixtus 18

C The region of war 19

(a) The territories of the parties to the conflict 20

(b) The high seas and the exclusive economic zone 22

(c) Outer space 24

D Neutrality 24

(a) The basic principles 24

(b) Some concrete rules 25

i Passage of belligerent military units and war materials 26

ii Enrolment in belligerent armed forces 26

iii Military supplies to belligerents 27

2 The course of war 30

A The beginning of war 30

(a) War in the technical sense 30

(b) War in the material sense 33

B The termination of war 34

(a) Treaties of peace 34

i The significance of a treaty of peace 34

ii Peace preliminaries 39

iii The legal validity of a treaty of peace 39

(b) Armistice agreements 42

(c) Other modes of terminating war 47

i Implied mutual consent 47

ii Debellatio 48

iii Unilateral declaration 49

C The suspension of hostilities 50

(a) Different types of suspension of hostilities 50

i Local cease-fire agreement 51

ii General cease-fire agreement 51

iii Cease-fire ordered by the Security Council 52

(b) The nature of cease-fire 54

(c) Denunciation and breach of cease-fire 56

Part II The illegality of war

3 A historical perspective of the legal status of war 63

A The 'just war' doctrine in the past 63

(a) The Roman origins 63

(b) Christian theology 64

(c) The 'fathers' of international law 65

B Recent concepts of 'just war' 67

(a) Kelsen's theory 67

(b) 'Wars of national liberation' 68

(c) 'Humanitarian intervention' 70

C The extra-legality of war 73

D The legality of war 75

E Exceptions to the general liberty to go to war 77

(a) Special arrangements 77

(b) The Hague Conventions 79

(c) The Covenant of the League of Nations 80

4 The contemporary prohibition of the use of inter-State force 83

A The Kellogg-Briand Pact 83

B The Charter of the United Nations 85

(a) The prohibition of the use of inter-State force 85

(b) Attempts to limit the scope of the prohibition 88

C Customary international law 91

(a) The general prohibition of the use of inter-State force 91

(b) The relationship between customary and treaty law 95

D Treaties other than the Pact and the Charter 97

E The prohibition of the use of inter-State force as jus cogens 99

(a) The significance of jus cogens 99

(b) How can jus cogens be modified? 102

F State responsibility 104

(a) Application of general rules of State responsibility 104

(b) State responsibility for international crimes 108

G Consent 112

(a) Ad hoc consent 112

(b) Consent by treaty 115

5 The criminality of war of aggression 117

A War of aggression as a crime against peace 117

B The definition of aggression 125

C Individual responsibility for crimes against peace 131

(a) The scope of the crimes 131

i Ratione materiae 131

ii Ratione personae 133

iii Ratione temporis 134

(b) Mens rea 136

(c) Inadmissible defence pleas 140

(d) The penal proceedings 144

(e) Immunities from jurisdiction 146

6 Controversial consequences of the change in the legal status of war 151

A War in the technical sense 152

B Inconclusive 'police action' 153

C Equal application of the jus in bello 156

(a) Self-defence 156

(b) Collective security 162

D Impartial neutrality 163

E Territorial changes 168

Part III Exceptions to the prohibition of the use of inter-State force

7 The concept of self-defence 175

A The right of self-defence 175

(a) The meaning of self-defence 175

(b) Self-defence as a right 178

(c) Self-defence as an 'inherent' right 179

B Self-defence as a response to an armed attack 182

(a) Armed attack and preventive war 182

(b) The nature and scope of an armed attack 187

(aa) An armed attack by a State 187

i The beginning of an armed attack and interceptive self-defence 187

ii A small-scale armed attack 193

iii The locale of an armed attack 196

iv The target of an armed attack 199

v Support of armed bands and terrorists 201

(bb) An armed attack by non-State actors 204

C Conditions precedent to the exercise of self-defence 208

D The role of the Security Council 211

(a) The two phases rule 211

(b) The options before the Security Council 213

(c) Failure to report to the Security Council 216

8 The modality of individual self-defence 219

A Self-defence in response to an armed attack by a State 219

(a) Measures 'short of war' 219

i On-the-spot reaction 219

ii Defensive armed reprisals 221

iii The protection of nationals abroad 231

(b) War 235

i Necessity 237

ii Proportionality 237

iii Immediacy 242

B Self-defence in response to an armed attack from a State 244

(a) Extra-territorial law enforcement 244

(b) The practice of States 247

(c) Webster's formula 249

9 Collective self-defence 252

A The meaning of collective self-defence 252

B Collective self-defence treaties 256

(a) Mutual assistance treaties 257

(b) Military alliances 260

(c) Treaties of guarantee 263

C The legal limitations of collective self-defence 267

(a) The primacy of the Charter of the United Nations 267

(b) The requirement of an armed attack 268

(c) Other conditions for the exercise of collective self-defence 270

D The modality of collective self-defence 271

E The Gulf War and collective self-defence 273

10 Collective security 278

A The meaning of collective security 278

(b) The Covenant of the League of Nations 278

(c) The Charter of the United Nations 279

(d) The discretion of the Security Council 283

B The decision-making process 289

(a) The duties incumbent on UN Member States 289

(b) The responsibility of the Security Council 290

C An overview of the Security Council's record 292

(a) The 'Cold War' era 292

(b) The Gulf War 294

i The invasion and liberation of Kuwait (1990-1) 294

ii The cease-fire period (1991-2003) 296

iii The occupation of Iraq (2003) 297

(c) The post-'Cold War' era (other than the Gulf War) 300

D The mechanism of employing collective force 304

(a) Article 42 and the absence of special agreements 304

(b) Peacekeeping forces 307

(c) Enforcement action beyond the purview of Article 42 310

E Is there an alternative to the Security Council? 315

(a) The General Assembly 315

(b) The International Court of Justice 318

i Concurrent or consecutive competence of the Council and the Court 318

ii Can the Court invalidate binding decisions adopted by the Council? 321.

Notes:

Title from publisher's bibliographic system (viewed on 05 Oct 2015).

Other Format:

Print version:

ISBN:

9780511841019

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