Correlation between jus in bello & jus ad.pptx

IHL

1. Correlation between jus in bello & jus ad bellum Dr. Khaled . H. Chowdhury

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.