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UNIVERSITY OF NAIROBI

SCHOOL OF LAW
(PARKLANDS CAMPUS)
COURSE UNIT: INTERNATIONAL HUMANITARIAN LAW
GPR 454
COURSE INSTRUCTOR: DR. WAYNE MUTUMA

PRESENTED BY: EDGAR USAGI ALEMA
G34/30193/2015- MODULE 2

THE CASE OF CONFLATION OF JUS AD BELLUM AND JUS IN BELLO: THE ANTITHESIS OF SEPARATION
THE CASE OF CONFLATION OF JUS AD BELLUM AND JUS IN BELLO: THE ANTITHESIS OF SEPARATION
I. INTRODUCTION
Jus ad bellum and jus in bello are well recognized principles in international law that become apparent in instances when States and specific non State actors use force in a bid to achieve specific military objectives. Jus ad bellum defines when force can be used while jus in bello regulates conduct in armed conflict. Renowned scholars and writers of International law such as Immanuel Kant have argued for the separation of the twin principles. Kant described the two as the right of going into war (jus ad bellum) and jus in bello (the right during war). This distinction is what has been adopted by the contemporary international humanitarian practice.
The different application and consequences of the application of the two principles is one of the reasons for the separation of the jus ad bellum and jus in bello. Jus ad bellum prohibits the use of force with the exception of the right to individual or collective self-defense and Security Council enforcement measures. On the other hand, jus in bello is based on the principle of humanity which obliges States to protect all belligerents equally. It can also be argued that even though there is a general prohibition of the use of force by binding documents such as the UN Charter, armed conflict remains an everyday reality which necessitates regulation.
The different applications of the shared legal principle of proportionality are also a ground against the conflation of the twin principles. Proportionality in jus ad bellum limits the use of force depending on the magnitude of the corresponding party while in jus in bello; the proportionality principle is based on the limit which an adversary can be injured. The Additional Protocol 1 of the Geneva Conventions for instance prohibits an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
However, with recent developments in armed conflicts, the bridge between the two principles has slowly been done away with. New actors in the sphere of armed conflict, such as terrorists and other non-State actors has led to a sharper focus on whether there should be a total separation. In addition to this, the ICJ in its Advisory Opinion of 1996, at Paragraph 2E, on a vote of 7 against 7 with a casting vote of the President of the Court held that, in view of the current state of International Law, and the elements of the case, the court could not conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in extreme circumstances of self-defense, in which the very survival of the State would be at stake.
Phenomenon such as self-defense in the case of extreme instances of State survival , use of certain weapons such as nuclear weapons, the overlapping principles of proportionality and necessity begs the question as to whether it’s time to reconsider the separation approach that is currently the practice in the Geneva Conventions. The preamble of the protocols affirms the intention of the parties that is the realization of world peace. In his Nobel Prize speech, Former US President reminded the international community of the need to aim for a just peace and a fight a just war. A just war and just peace can only be recognized with the conflation of jus ad bellum and jus in bello. The concept of a Responsibility to Protect which is an emerging issue and responsibility of the International Community is also a strong case for the paradigm shift in the separation emphasis. Moreover, history has proved man’s intention to rid war as a foreign policy with the signing into force of treaties such as the Kellog-Briand Pact of 1928.
This paper therefore seeks to elucidate the necessity of conflation. It will first show how the realization of Just War and Just Peace are dependent on the recognition of the conflation. The paper will then show how the overlapping principles of necessity and proportionality further push for the conflation of the jus ad bellum and jus in bello and finally, the writer will address how technological advancements have made it inevitable to push for jus in bello to work under the jus ad bellum principle due to the devastating effects that they result in on their usage.
In as much as there are limits in the use of reason and peaceful means of addressing misunderstandings, in the words of Martin Luther King, violence brings no permanent peace; it solves no social problems; it merely creates new and more complicated ones…The objective is to attain world peace and it’s the writer’s sole purpose to demonstrate how the separation of the principles takes the whole human society to their ‘uncivilized roots’.
II. THE THEORY OF JUST WAR
Proponents of the Just War theory have demonstrated that its development was necessitated by the need of a just response to illegal aggression. In addition to this, the maxim ex injuria non oritur jus is an emerging concept in the international arena especially with the emergence of certain non-state actors such as terrorists. The maxim denotes that one should not be able to profit from acts of one’s wrongdoing.
The just war theory has been included in some of the world’s most authoritative documents. For instance for the Kellog-Briand Pact, the nations of the American hemisphere condemned wars of aggression and agreed to the settlement of controversies …with provisions that have the sanction of the law. Furthermore, the United Nations Charter was entered into with the intention tosave succeeding generations from the scourge of war, maintain international peace and security, take collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means…adjustment or settlement of international disputes or situations which might lead to a breach of peace.
The writer contends that the protection of participants of war who have not fulfilled the provisions of a just war is essentially protecting those who are against the intentions of the UN Charter. This regresses the contemporary global society to the dark ages where there was barely or no distinction between the civilized and non-civilized nations.
The 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS) states that justified military action should satisfy: right authority, just cause, right intention, last resort, proportional means and reasonable prospects of success. Universal protection of all participants of war without considering the fulfillment of the aforementioned principles puts the whole international law regime at the danger of being ineffective.
Positivists such as Hans Kelsen have written that law is only valid if it is enforceable. Law is only as effective as its ability to be enforced. The separation of jus ad bellum and jus in bello principles grants a pass to violators of international law as they are guaranteed protection under the same laws they violate. A cosmopolitan just war theory ought to morally constrain both actual uses of armed force and to deter threats to actually use armed force.
In spite of that, the lack reciprocity from certain actors in the armed conflict such as those who fight ‘holy wars’ in which there is little or no distinction between combatants and non-combatants presents the international community with an absolute responsibility to conflate the duo principles to isolate such violators of rules of armed conflict. After the second world war, the International Military Tribunal at the Ministries Trial , even though the judgment supported the separation of the conduct of war and how the war resulted in the first place, the Prosecution team, proposed to the court that by resorting to armed force, Germany violated the Kellog-Briand Pact and thereby became an international outlaw. It further added that every peaceable nation had the right to oppose it without becoming an aggressor, to help the attacked, and join with those who had previously come to the aid of the victims. The doctrine of self-defense was not supposed to be applicable to Germany as a matter of International law, in view of prior violation of that law.
At the Hostages Trial, the Prosecution team advanced that since Germany’s war against Yugoslavia and Greece were aggressive wars, the German occupant troops were there unlawfully and therefore could not claim any rights whatsoever as occupants . The Tribunal turned this argument down on humanitarian justifications. Additionally, in the High Command Case, the prosecution advanced a just war kind of argument contending that the defense of military necessity can never be utilized to justify destruction in occupied territory by the perpetrator of an aggressive war as it would result in a farcical paradox.
As earlier reported from Martin Luther King’s Nobel Prize speech, the non-regulation of violence has the effect of disastrous consequences whatsoever the reason for going to war. However, if only those who comply with just war principles are protected, it will act as a deterrence tool against the use of aggression without a justifiable reason to do so. In as much as the UN Charter has mandated States against the use of force and only limited it to certain circumstances, armed conflict remains an everyday reality with the unforgiving truth of the impossibility of eradicating its use with totality.

III. THE THEORY OF JUST PEACE
Just war creates the safe surround that permits civic peace…to flourish. The principles of jus ad bellum and jus in bello are both guided by certain non-derogable rights demonstrating an ascendance of human rights especially in the post second world war era within binding documents such as the International Covenant on Civil and Political Rights(ICCPR). Jus ad bellum, like human rights, operate in times of peace while jus in bello operates In times of war.
However, the two principles are linked by the common application of Article 2 of the ICCPR which states that there will be no derogations from Article 6, 7. 8(paragraphs 1& 2, 11, 15, 16 and 18 even during times of emergency. Such provisions include that no person shall arbitrarily be deprived of life; everyone has freedom from torture, cruelty, inhuman or degrading treatment or punishment and no one shall be subjected without his free consent to medical or scientific experimentation; freedom from slavery and all forms of slave trade; right to recognition and the freedom of religion.
The International Court of Justice in its Advisory Opinion on the use of Nuclear Weapons also pointed out on the importance of taking cognizance of the destructive effects certain weapons may have on the environment. This unifies the proportionality principle in deciding what force to use in an armed conflict and the military advantage sought in using these weapons. Additionally, the Court in the Corfu Chanel Case stated that there are certain well known principles in International Law such as the no harm principle that every State is privy to.
The consideration of the aforementioned rights blurs the distinction between the jus ad bellum and jus in bello due to the shared common responsibility to recognize these rights in both.

IV. THE OVERLAPPING PRINCIPLE OF PROPORTIONALITY
The proportionality principle is a shared principle under the jus ad bellum and jus in bello with theoretically separate applications. Proportionality in jus ad bellum limits the use of force depending on the magnitude of the corresponding party while in jus in bello; the proportionality principle is based on the limit which an adversary can be injured. The Additional Protocol 1 of the Geneva Conventions for instance prohibits an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
In the ICJ Nuclear Weapons Advisory Case, the Court stated that a use of force that is proportionate under the law of self-defense must; in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprises in particular the principles and rules of humanitarian law. In theory, proportionality may be separate but in practice, the application overlaps.
Furthermore, writers of IHL such as Canizarro, have distinguished between quantitative and qualitative tests of proportionality. Under the former, proportionality entails that the defensive action must conform to quantitative features of the aggressive attack, such as the scale of action, the type of weaponry and the magnitude of damage. The qualitative test focuses on whether the defensive act is appropriate in relation to the ends sought, namely to repel the attack. As referred to earlier, The International Court of Justice in its Advisory Opinion on the use of Nuclear Weapons also pointed out on the importance of taking cognizance of the destructive effects certain weapons may have on the environment. This unifies the proportionality principle in deciding what force to use in an armed conflict and the military advantage sought in using these weapons.
Emerging issues such as State Survival and pre-emptive self defence raised in the Nuclear Advisory Case have demonstrated that there are instances where the practical applications of the proportionality test have to encompass jus ad bellum and jus in bello as the separation creates an uncertainty in the International Court of Justice on the legality of certain weapons.

V. TECHNOLOGICAL ADVANCEMENTS AND THEIR PUSH FOR THE CONFLATION
The Cold War presented the world with the opportunity-with the nuclear stalemate between dueling great powers, for the production of a plethora of technically advanced nuclear and non-nuclear weapons such that instead of closing with an opponent, the object is to destroy him at a long range. Application of technological achievements; extensive use of long range and less intensive weapons such as precision guided missiles launched from hundreds of miles away are just some of the characteristics of modern warfare.
Such advancements may have been guided by the losses of human life (of both combatants and noncombatants) in the catastrophic First and Second World Wars. It is estimated that 60 million people, 2.3% of the world’s population at the time, lost their lives by the end of the Second World War. William Boettcher III concludes that, political leaders may need to appropriately frame the potential costs, benefits and probability of success of humanitarian interventions to generate the public support necessary to sustain these efforts. For instance, the ratio of American soldiers in an attempt to promote US foreign policy is 1:10. This means that for every foreigner saved from subjugation from inhumanity, 10 American soldiers lose their lives in the line of duty.
Furthermore, Shaw defines modern liberal war as a ‘risk-transfer’ war and states that the West, which is a major participant in the world’s current armed conflict, has shifted its way of war because of the new character acquired by modern warfare. Modern warfare bears considerations such as the political and life risks and thus have become the primary determinants of making war a successful project. For instance, the two overarching justifications for the Iraq Invasion were the ‘pre-emptive’ and humanitarian intervention.
The above reasons make a strong case for the conflation of jus in bello and jus ad bellum. States have to consider what kind of weapons they will use prior to attempting the use of force. Human beings have consistently conspired new ways of killing and causing harm to each other.
The separation of jus ad bellum from jus in bello is the sole reason as to the indeterminacy of the ICJ in reaching an affirmative decision as to whether it is lawful to use weapons such as Nuclear warheads against other States especially with upcoming concepts such Pre-emptive self-defense. Paragraph 2E of the Court’s decision, the Bench considering the current state of international law and the facts of the case, the Court could not conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense , in which the very survival of the State would be at stake. Such extreme circumstances seek to override certain humanitarian principles. The Martens Clause which was to encompass such technological developments has therefore proved ineffective with regard to humanity and public conscience. It’s only by conflation that the contemporary society will reach a unanimous decision on the same.
VI. RECOMMENDATIONS
The current regime on International Humanitarian law should take notice of the mutating nature of armed conflict. History has shown that human beings have not run out of new and easier ways of annihilating each other. The Martens Clause which was to guide the evolving world in such circumstances did not take cognizance of the limits of reason that continuously defines who man is.The conflation of jus ad bellum and jus in bello principles is a first positive step of action that the civilized world should take in a bid to rid the world of such uncivilized means of dispute settlement.
The global world should adopt the intentions of the Non Proliferation Treaty . The treaty recognizes the disastrous effects of nuclear arms and the need for global attention to shift to such consequences.
In addition to this, the legal regime should expand to include Non-State Actors such as terrorists. It is only by recognizing their existence under binding law that the inconsistency in jurisprudence will cease. Justice Thomas in his dissenting opinion in Hamdan v Rumsfeld stated that none of the provisions of Geneva apply to the US conflict with Al Qaeda in Afghanistan or elsewhere in the world because among all other reasons, Al Qaeda is not a High Contracting Party.

VII. BIBLIOGRAPHY
International Documents
1. Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907
2. International Covenant on Civil and Political Rights 1966
3. Kellog-Briand Pact 1928
4. UN Charter 1945
5. Treaty on the Non-proliferation of Nuclear Weapons 729 UNTS 161; 7 ILM 8809 (1968); 21 UST 483
International Cases
1. Corfu Channel Case (United Kingdom v. Albania); Assessment of Compensation, 15 XII 49, International Court of Justice (ICJ), 15 December 1949
2. Hostage Case, United States v List (Wilhelm) and ors, Trial Judgment, Case No 7, (1948) 11 TWC 757, (1950) 11 TWC 1230, (1948) 8 LRTWC 34, ICL 491 (US 1948), (1948) 15 ILR 632, 19th February 1948, International Military Tribunal IMT; Nuremberg Military Tribunal NMT
3. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996
4. The United States of America vs. Ernst von Weizsäcker et al , the Ministries Trial, US Military Tribunal Nuremberg, Judgment of 11 April 1949

National Cases
1. Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

Books
1. Benjamin Banta ‘Virtuous War and the Emergence of Just Post Bellum ‘ Review of International Studies Vol.37 No.1, p.277-299
2. Benjamin Banta ‘Virtuous War and the Emergence of Just Post Bellum ‘ Review of International Studies Vol.37 No.1, p.277-299
3. Eva Wortel ‘Humanitarians and their Moral Stance in War’ International Review of the Red Cross, Vol.91, No.878,December 2009.
4. Ignatieff, M. (2000). Virtual war: Kosovo and beyond. New York: Henry Holt.
5. Jasmine Moussa ‘Reaffirming the Separation of the two bodies of law’ International Review of the Red Cross, Vol.90 No. 872, December 2008
6. Jean Bethke Elshtain, Just War against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2003), p.54
7. John W Lango ‘The Ethics of Armed Conflict: Just War Theory’ Edinburgh University Press (2014).
8. Judge Weeremantry ‘Grotian Quest : Transnational Law ; Contemporary Problems ‘ Vol.7 (1997) p 425
9. Martin Shaw ‘The New Western Way of War: Risk Transfer War and its Crisis in Iraq’ Cambridge Polity Press 2005. P.71
10. Sherman L Cohn ‘Ex Injuria Jus Non Oritur: A Principle Misapplied’ Santa Clara Law Review Vol,3 No,1, 1962
Journals
1. Henry T. King, Jr., The Judgments and Legacy of Nuremberg, 22 Yale J. Int’l L. (1997).

Online Sources
1. Barack Obama Nobel Prize Speech accessed 10th July
2. Barack Obama Nobel Prize Speech accessed 10th July 2018.
3. Canizarro on Proportionality accessed 12th July 2018
4. International Committee of the Red Cross accessed 10th July, 2018
5. Pure Theory of Law accessed
6. Second World War Statistics accessed 11th July 2018
7. UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, accessed 11 July 2018
8. United Nations accessed 11th July, 2018

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