Dangerous proportions: Means and Ends in Non-Finite War

Philip Alston’s deep worries about the institutionalization of the tactic of targeting killing, the ensuing extension of warfare and its corrosive consequences for any meaningful possibility of scrutinizing the legality of such strikes, proved far-sighted. The chapter focuses on the accompanying re-articulation of the right of self-defense by states active in the war on terror and demonstrate that it has fashioned a set of interconnected legal propositions that we call “revisionist.” This revisionist framework, we show, cumulatively engenders a highly permissive framework for the preventive, extraterritorial, use of lethal force against individuals and non-state groups, with a geographically and temporally expansive scope. We do not argue that this permissive version of self-defence is now lex lata or even de lege ferenda. We also distinguish ourselves from the view that the revisionist framework departs from “the ‘old days’ when the law was allegedly certain” – that is, when the law required a high threshold of effective control by the territorial state over the non-state armed group. Instead, building on Robert Brandom’s Hegelian account of the determinateness of legal concepts, we frame the revisionist framework as a historically-embedded process of determination of the new content of the concept of self-defense. The chapter shows that these conceptual revisions bring with them a reconfiguration of the structure of legal relationships presupposed by the jus ad bellum’s concept of proportionality, and a new (in)determinacy which renders the concept more permissive than constraining.

Professor Nehal Bhuta holds the Chair of Public International Law at University of Edinburgh and is Co-Director of the Edinburgh Centre for International and Global Law. He previously held the Chair of Public International Law at the European University Institute in Florence, where was also Co-Director of the Institute's Academy of European Law. He is a member of the editorial boards of the European Journal of International Law, the Journal of International Criminal Justice, Constellations and a founding editor of the interdisciplinary journal Humanity. He is also a series editor of the Oxford University Press (OUP) series in The History and Theory of International Law. Prior to the EUI he was on the faculty at the New School for Social Research, and at the University of Toronto Faculty of Law. Before entering academia, he worked with Human Rights Watch and the International Center for Transitional Justice. Nehal’s two most recent edited volumes are Freedom of Religion, Secularism and Human Rights (OUP) and Autonomous Weapons Systems - Law, Ethics, Policy (Cambridge University Press with Beck, Geiss, Liu and Kress). Nehal works on a wide range of doctrinal, historical and theoretical issues in international law, international humanitarian law, international criminal law and human rights law.

Dr Rebecca Mignot-Mahdavi is a Postdoctoral Researcher at the Asser Institute (University of Amsterdam), a Teaching fellow at SciencesPo Paris and the Managing Editor of the Yearbook of International Humanitarian Law. She holds a PhD in Law from the EUI, entitled “Drone Programs: the Interaction Between Technology, War and the Law”. She currently supervises Master theses in criminal law and public international law at the University of Amsterdam. Her work reflects on how new technologies, together with the law, reshape security practices in the counterterrorism context.