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25 J. Conflict & Sec. L. 1 (2020)

handle is hein.journals/jcsl25 and id is 1 raw text is: Journal of Conflict & Security Law © Oxford University Press 2020; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com doi:10.1093/jcsl/kraa001 Advance Access Publication Date: 4 February 2020 Pillars not Principles: The Status of Humanity and Military Necessity in the Law of Armed Conflict Elliot Winter* Abstract Humanity and military necessity are often said to be 'principles' of the law of armed conflict (LOAC). However, for Dworkin, a concept must satisfy certain criteria in order to earn the status of a principle. First, principles carry different weightings to each other so that one may triumph in the event of a clash. Secondly, principles are capable of superseding positive rules so that coherence in the regime over which they preside is maintained. This article contends that neither criterion is satisfied by humanity or military necessity. Consequently, it argues that these concepts are not truly principles and that, instead, they are better viewed as 'pillars' of the LOAC. 1. Introduction The law of armed conflict (LOAC) serves a critical role in the international legal order. The framework it provides is responsible for regulating the conduct of hostilities and protecting persons in situations of international, and intra- national, violence.' It often acts as a basis for life or death decisions. As with any legal order, the regime is comprised of an amalgam of rules and principles. The rules provide the detailed, technical, substance of the regime that allows for the resolution of specific legal questions. They are meticulously charted in a phalanx of black-letter texts such as international treaties, court decisions and military manuals. The principles, however, are more general concepts with broader purposes as they offer the backdrop against which new rules are devised and provide context for how existing rules are interpreted. Principles might also fill lacunae in the law that have emerged as a result of gaps in pol- itical consensus in this acutely sensitive field. On a more immediate level, prin- ciples in this context supply crucial beacons for combatants to rely upon when making split-second decisions. In short, while they may be more generic than rules, principles remain vitally important to LOAC. Lecturer, Newcastle Law School, Newcastle University, UK. E-mail: elliot.winter@ newcastle.ac.uk. A debt of gratitude is owed to Dr Conall Mallory, Dr Elena Katselli and Professor Rhona Smith for their support. For a detailed account of the regime, see A Clapham and P Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014). Journal of Conflict & Security Law (2020), Vol. 25 No. 1, 1-31

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