Forever Air Wars and the Lawful Purpose of Self-Defence

Authors

Mary Ellen O'Connell, Notre Dame Law SchoolFollow

Document Type

Article

Publication Date

2022

Publication Information

9 J. on Use Force & Int'L L. 1 2022

Abstract

The 20-year Afghanistan conflict was called a “forever war”, but another significant use of military force has lasted much longer and looks set to continue. Since 1986, US presidents have authorized air attacks beyond armed conflict zones. President Biden continued the practice beginning with a strike in Syria and continuing through 2021 with attacks in Iraq, Somalia, and Afghanistan. At the end of August, one such attack in Kabul cost the lives of ten family members, including seven children. These US air wars are explained more by the national security policy of deterrence, than by the lawful purpose of self-defence as permitted under international law. UN Charter Article 51 restricts force in self-defence to when an armed attack occurs. The general principles of necessity, proportionality, and attribution provide further restrictions. The US has tried for 35-years to alter this law to permit force for the purpose of deterrence policy but doing so is difficult under the doctrine of positive law. It is impossible under the doctrine of jus cogens, which permits no derogation from fundamental norms, such as the prohibition on force and the exception for self-defence.

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Recommended Citation

Mary E. O'Connell, Forever Air Wars and the Lawful Purpose of Self-Defence, 9 J. on Use Force & Int'L L. 1 2022.
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1466