The Use of Force against Individuals in War under International Law A Social-Ontological Approach

Is it legal to kill, or capture and confine, someone in war? Is this relevant or wise to ask in the reality of war? What does 'legal' actually mean in the labyrinth of overlapping international laws?

This volume explores the meaning, relevance, and wisdom of questioning the 'legality' of the use of force against individuals in war by reconnecting legal thought with the social world. Weaving together law, social theories, and actual practices, the book presents an interdisciplinary study of the laws regulating warfare.

The Use of Force against Individuals in War under International Law uncovers different conceptions of 'legality' that generate tensions among different international laws regulating warfare and highlights the limits of legal techniques in addressing these tensions. Accepting these tensions serves not to denigrate the law itself but to invite a deeper level of engagement with it - through the lens of social theories.

Drawing on the insight that every social action results from an interaction between human agency and social structures, this publication argues that in regulating warfare, one distinct body of international law, the law of armed conflicts, accommodates the diminished agency of human beings operating in highly structured conditions while other bodies of international law harbour the potential to transform these very structured conditions. Thus, assimilating these laws, whether in court or real-world practices, fundamentally conflates their underlying social ontologies.

General Introduction
Chapter 1: The Legality of the Use of Force against Individuals in War Description of a Difficulty
I. Introduction
II. Legal Norms Relevant to the Use of Force against Individuals in War
III. Jurisprudence on the Relationship among Different Legal Norms Relevant to the Use of Force against Individuals in War
IV. Key Approaches to the Relationship among Different Legal Norms Relevant to the Use of Force against Individuals in War
V. Conclusion
Chapter 2: Six Concepts of Legality and their Disambiguation
I. Introduction
II. Vertical Legality
III. Horizontal Legality
IV. De-conflation of Different Concepts of Legality
V. Conclusion
Chapter 3: Verticalizing and Horizontalizing the Notion of Legality under International Human Rights Law
I. Introduction
II. The Layered Nature of Legality under IHRL for the Right to Life and the Right to Liberty
III. The Dimension of Vertical Legality under IHRL
IV. The Dimension of Horizontal Legality under IHRL
V. Conclusion
Chapter 4: Subjectivising and Objectivising the Legal Techniques for Establishing the Relationship among International Legal Norms
I. Introduction
II. Justifications for and Limits to the Use of Legal Techniques
III. Applying Lex Specialis to Establish the Relationship among Different Laws on the Use of Force against Individuals in War
IV. Applying Systemic Integration to Establish the Relationship among Different Laws on the Use of Force against Individuals in War
V. Conclusion
Chapter 5: Ontologising the Laws on the Use of Force against Individuals in War
I. Introduction
II. Social Ontology
III. The Ontological Presuppositions of LOAC and IHRL
IV. Three Patterns of Ontological Conflation
V. Conclusion
Chapter 6: Agents and Structures in the Field of Via Dolorosa
I. Introduction
II. Effects of Social Structures on the Practices of the Use of Force against Individuals in War
III. Effects of Human Agency on the Practices of the Use of Force in Armed Conflict and Occupation
IV. Convergence of Laws, Conflation of Ontologies
V. Conclusion
General Conclusion
Theoretical Implications
Methodological implications
Practical Implications