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Counterinsurgency LawNew Directions in Asymmetric Warfare$
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William Banks

Print publication date: 2013

Print ISBN-13: 9780199941445

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199941445.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 23 November 2020

Valor’s Vices

Valor’s Vices

Against a State Duty to Risk Forces in Armed Conflict

Chapter:
(p.87) 5 Valor’s Vices
Source:
Counterinsurgency Law
Author(s):

Peter Margulies

Publisher:
Oxford University Press
DOI:10.1093/acprof:osobl/9780199941445.003.0005

This chapter examines the supposed duty to risk state forces in armed conflicts when, for example, a state chooses to use air power to minimize risk to its own troops. It begins with an overview of civilian harm and the rationale of the duty to risk before discussing the interaction between international humanitarian law (IHL) and international human rights law in the duty to risk. Reviewing IHL and military ethics, the chapter challenges the argument that a state has a categorical duty to risk its forces even when IHL would not so require according to the principle of proportionality. As an alternative, it proposes a structural approach to counterinsurgency that pivots around the relationship between a violent nonstate actor and at-risk civilians. It suggests that traditional IHL principles may be most fair to civilians and soldiers and that duties to the state that exceed IHL requirements may blunt the decisiveness needed by commanders.

Keywords:   duty to risk, armed conflict, civilian harm, international humanitarian law, international human rights law, military ethics, proportionality, counterinsurgency, civilians, soldiers

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