OUVRAGE : S. Selvadurai, Law, War and the Penumbra of Uncertainty. Legal Cultures, Extra-Legal Reasoning and the Use of Force

Sam SELVADURAI

This book argues that lawyers must often rely on contestable ethical and strategic intuitions when dealing with legal and factual uncertainties in "hard cases" of resort to force. This area of international law relies on multiple tests which can be interpreted in different ways, do not yield binary "yes/no" answers, and together define "paradigms" of lawful and unlawful force. Controversial cases of force differ from these paradigms, requiring lawyers to assess complex, incomplete factual evidence, and to forecast the immediate and long-term consequences of using and not using force. Legal rules cannot resolve such uncertainties; instead, techniques from legal risk management, strategic intelligence assessment and political forecasting may help. This study develops these arguments using the philosophy of knowledge, socio-legal, politico-strategic and ethical theory, structured interviews and a survey with 31 UK-based international lawyers, and systematic analysis of key International Court of Justice cases and scholarly assessments of US-led interventions.

TABLE OF CONTENTS

Acknowledgements

1. Introduction: Investigating Law, War and the Penumbra of Uncertainty

Introduction
Legal and Extra-legal Controversy in the Jus ad Bellum
Investigating Legal and Factual Uncertainty about Resort to War
Outline of the Book

PART I.
VARIETIES OF UNCERTAINTY IN THE JUS AD BELLUM

2. Uncertainty about Law in the Jus Ad Bellum

Introduction
Vagueness and Disagreement in Law
Uncertainty in Identifying and Interpreting the Jus ad Bellum
‘Hard Cases’ in the Jus ad Bellum
Interpretive Principles and the Jus ad Bellum
Conclusion: Competing Interpretive Cultures

3. Uncertainty about Facts in the Jus ad Bellum

Introduction
Facts and Forecasts in the Jus ad Bellum
Hercules, Thrasymachus and the Confounding Effects of Factual Detail
Responses in Law to Uncertainty of Fact
Extra-Legal Reasoning in the Jus ad Bellum
Conclusion: Competing Strategic Cultures

PART II.
THE INTERNATIONAL COURT OF JUSTICE, UK-BASED LAWYERS
AND THE JUS AD BELLUM 

4. Competing Interpretive Cultures of War 

Legal Scholars and Legal Interpretation: Kosovo, Afghanistan and Iraq

Introduction
Narrative
Conclusions

The ICJ and Legal Interpretation: Nicaragua, Wall, Congo

Introduction
Narrative
Conclusions

UK International Lawyers and Legal Interpretation

Introduction
Narrative
Conclusions

5 Competing Strategic Cultures of Law

Legal Scholars and Extra-legal Reasoning: Kosovo, Afghanistan and Iraq

Introduction
Narrative
Conclusions

The ICJ and Extra-legal Reasoning: Nicaragua, Wall and Congo

Introduction
Narrative
Conclusions

UK International Lawyers and Extra-legal Reasoning

Introduction
Narrative
Conclusions

PART III.
MANAGING UNCERTAINTY:
RECONCILING LEGAL AND EXTRA-LEGAL REASONING 

6 Legal Risk, Strategic Assessment, Forecasting and the Jus ad Bellum 

Three Approaches to Uncertainty

Legal Risk Management
International Humanitarian Law
Strategic Intelligence Analysis and Forecasting

A Risk Management Framework for the Jus ad Bellum
Applying the Framework: Kosovo and Afghanistan

Kosovo 1999
Afghanistan 2001
Conclusion

Iraq 2003: Legal Risk Management in (Imperfect) Action?

7 Uncertainty, Risk Management and Duty to the Law

Introduction
Varying Duties and Roles of International Lawyers
Uncertainty and Challenges to Lawyers’ Duty to the Law
Justifying a Risk Management Approach
Conclusion: Reflective Equilibrium and Hard Cases

8 Conclusion: Competing Normative Cultures of War

Introduction
Recapitulation: Argument, Findings and Conclusions
Methodological Limitations, Future Opportunities
Conclusion: Determinacy and Efficacy in the Jus ad Bellum

Bibliography
Index 

Sam SELVADURAI, Law, War and the Penumbra of Uncertainty. Legal Cultures, Extra-Legal Reasoning and the Use of Force, Cambridge, Cambridge University Press, 2022 (256 pp.)