2. RELEVANT READING
Dr. Nurun Nahar, ‘A Textbook of International Humanitarian Law,’ (
Chapter: 01, pp 01- 12)
Barrister Ahmed Kabir & Barrister Shuvra Chowdhury, ‘Introduction to
International Humanitarian Law’ ( pp 01-42)
3. BACKGROUND
The clear distinction between jus in bello and jus ad bellum is
comparatively recent. The terms did not become common in
debates and writings about the law of war until a decade after
World War II.
The purpose of international humanitarian law is to limit the
suffering caused by war by protecting and assisting its victims as
far as possible. The law therefore addresses the reality of a conflict
without considering the reasons for or legality of resorting to force.
It regulates only those aspects of the conflict which are of
humanitarian concern. It is what is known as jus in bello (law in
war). Its provisions apply to the warring parties irrespective of the
reasons for the conflict and whether or not the cause upheld by
either party is just.
4. BACKGROUND
The jus ad bellum (law on the use of force) or jus contra
bellum (law on the prevention of war) seeks to limit resort to
force between States. Under the UN Charter, States must
refrain from the threat or use of force against the territorial
integrity or political independence of another state (Art. 2,
para. 4).
Exceptions to this principle are provided in case of self-
defence or following a decision adopted by the UN Security
Council under chapter VII of the UN Charter.
5. WHAT ARE JUS AD BELLUM AND JUS IN BELLO ?
Jus ad bellum refers to the conditions under which States may
resort to war or to the use of armed force in general. The
prohibition against the use of force amongst States and the
exceptions to it (self-defence and UN authorisation for the use of
force), set out in the United Nations Charter of 1945, are the core
ingredients of jus ad bellum
6. WHAT ARE JUS AD BELLUM AND JUS IN BELLO ?
Jus in bello regulates the conduct of parties engaged in an
armed conflict. IHL is synonymous with jus in bello; it seeks to
minimise suffering in armed conflicts, notably by protecting
and assisting all victims of armed conflict to the greatest
extent possible.
7. IHL applies to the belligerent parties irrespective of the
reasons for the conflict or the justness of the causes for which
they are fighting. If it were otherwise, implementing the law
would be impossible, since every party would claim to be a
victim of aggression. Moreover, IHL is intended to protect
victims of armed conflicts regardless of party affiliation. That is
why jus in bello must remain independent of jus ad bellum
8. RULES GOVERNING THE LEGITIMACY OF THE USE OF FORCE
IHL is also referred by its Latin expression jus in bello.
Traditionally, the concept of jus in bello is encountered with that of
jus ad bellum or jus contra bellum which encompasses the whole of
the rules of IHL governing the admissibility of recourse to force
between States.
Jus ad bellum governs the right to engage (or not) in war, so it is a
medium of justifying the rights of the concerned parties on taking
part in war whereas the term jus in bello regulates law during war
9. RULES GOVERNING THE LEGITIMACY OF THE USE OF FORCE
The objective of IHL consists of protecting victims in war
regardless of the party to the conflict with which they are
affiliated. The rules of jus in bello applies independently of any
preliminary violation of the principles and rules of jus ad
bellum: it is one of the consequences of what one calls the
principle of equality of the belligerents.
10. RULES GOVERNING THE LEGITIMACY OF THE USE OF FORCE
The logic which underlies this principle is clear: to make the
application of IHL dependent on the designation of a guilty
party would likely paralyse its implementation; the Parties to
the conflict would mutually reject responsibility for recourse to
force.
11. FUNDAMENTAL DISTINCTIONS
IHL developed at a time when the use of force was a lawful
form of international relations, when States were not
prohibited from waging war.
Today, the use of force between States is prohibited by a
peremptory rule of international law. Exceptions are admitted
in the case of individual and collective self defence, based
upon Security Council resolutions and arguably the right of
people to self-determination.
12. FUNDAMENTAL DISTINCTIONS
IHL must be respected independently and be completely
distinguished from jus ad bellum. Any past, present and future
theory of just war only concerns jus ad bellum and cannot
justify that those fighting a just war have more rights or fewer
obligations under IHL than those fighting an unjust war.
13. FUNDAMENTAL DISTINCTIONS
The complete separation between jus ad bellum and jus in
bello implies that IHL applies whenever there is de facto an
armed conflict no matter how that conflict is qualified under ad
bellum and that no jus ad bellum arguments may be used to
interpret it; it also implies that the rules of IHL should not be
drafted so as to render jus ad bellum impossible to implement
, e.g, render efficient self-defence impossible.
14. PRINCIPLES GOVERNING THE RELATIONSHIP BETWEEN JUS AD
BELLUM AND JUS IN BELLO
1. Separation between jus ad bellum and jus in bello
2. Equal application of jus in bello to conflicting parties
3. Concurrent application of jus ad bellum and jus in bello
15. PRINCIPLE OF SEPARATION
(a) The legal status of the conflicting parties under the jus ad
bellum does not affect the application of IHL
(b) The application of IHL does not legitimise any illegal use of
force under jus ad bellum
Hostage case (Nuremberg): there is no reciprocal connection
between the manner of he military occupation of territory and
the rights and duties of the occupant
16. EQUAL APPLICATION OF JUS IN BELLO TO CONFLICTING PARTIES
1. Common Article 1 GCs: in all circumstances
- ARTICLE 1
The High Contracting Parties undertake to respect and to
ensure respect for the present Convention in all
circumstances.
2. ICRC: the principle of equality of belligerent underlies the
law of armed conflict
17. PRINCIPLE OF CONCURRENT APPLICATION
jus ad bellum and in bello are applicable at the same time and
not one after the other
They can be complementary (not mutually exclusive)
Nuclear Weapons : a use of force that is proportional under
the law of self defence must, in order to be lawful, also meet
the requirements of IHL
18. THE INADEQUACY OF JUS AD BELLUM PRINCIPLES IN GUIDING
FORCE SHORT OF WAR
When one thinks of the principles of the just war tradition, one tends
to think in terms of their capacity to capture the moral dilemmas of
large-scale employments of force. Brian Orend's definition of war
serves as a good example:
War should be understood as
an actual, intentional and widespread armed conflict between political
communities. . . . War is a phenomenon which occurs only between
political communities, defined as those entities which either are states
or intend to become states (in order to allow for civil war). . . . Further,
the actual armed conflict must be intentional and widespread: isolated
clashes between rogue officers, or border patrols, do not count as
acts of war. The onset of war requires a conscious commitment and a
significant mobilisation on the part of the belligerents in question.
There's no real war so to speak until the fighters intend to go to war
and until they do so with a heavy quantum of force.
19. THE INADEQUACY OF JUS AD BELLUM PRINCIPLES IN GUIDING
FORCE SHORT OF WAR
The problem is that the terms “war” and “armed conflict” do not
adequately capture the full spectrum of force available to statesmen.
The right to wage war is traditionally justified by reference to the
duty of leaders to defend the members of their state from
aggression, and the legal permission, informed by Article 51 of the
UN Charter, to use force in self-defense. When one state wages an
aggressive war against another, it is easy to see how a large-scale
use of force could be warranted as a response and how the jus ad
bellum criteria could govern this decision. However, the evolving
notion of threat illustrates the need for a more calibrated view of
force. In cases of threat associated with terrorism, humanitarian
catastrophe, and the spread and use of weapons of mass
destruction, the potential for significant human rights violations
warrants some kind of response, but not necessarily the declaration
of a full-scale international war.
20. PROPORTIONALITY IN IHL
Art 51 (5) API:
Incidental loss of life or damage which is excessive in relation
to the concrete and direct military advantage anticipated
Operational and tactical use of military force against strategic
use of force
For example: jus ad bellum proportionality may justify attacks
on civilian objects but IHL proportionality limits side effects on
civilians and civilian objects
21. PRINCIPLE OF NECESSITY IN SELF-DEFENCE AND IHL
Rules of IHL are not to be drafted so as to render jus ad bellum
impossible to implement- for example render efficient self-defence
impossible.
