scholarly journals Aggressors' Rights: The Doctrine of ‘Equality between Belligerents’ and the Legacy of Nuremberg

2011 ◽  
Vol 24 (3) ◽  
pp. 627-650 ◽  
Author(s):  
MICHAEL MANDEL
Keyword(s):  
General Assumption ◽  
Symmetry Principle ◽  
Jus In Bello ◽  
Law Of War ◽  
Legal Scholarship ◽  
Jus Ad Bellum ◽  
The Law

AbstractThe moral and legal debate over the separation of jus in bello from jus ad bellum generally assumes that the law of war supports this separation and the concomitant doctrine of ‘equality between belligerents’, also known as the ‘duality’ or the ‘symmetry’ principle. This article examines the Nuremberg-era precedents and legal scholarship, as well as more recent legal and scholarly material, and argues that the general assumption is wrong and that the arguments supporting the radical legal separation of the two jus's are unconvincing.

scholarly journals Informal Regulation and the Hyper-Responsiveness of International Law

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 97-101 ◽  
Author(s):  
Theresa Reinold
Keyword(s):  
International Law ◽  
Legal Scholarship ◽  
Jus Ad Bellum ◽  
The Law ◽  
And Function ◽  
Informal Regulation

Monica Hakimi has offered a thought-provoking and timely analysis of how the jus ad bellum operates, placing on the agenda of international legal scholarship a regulatory dynamic that has thus far remained underappreciated. While I believe that a discussion of this dynamic is overdue and thus welcome her plea to take informal regulation seriously, I find some of her underlying assumptions about the nature and function of international law problematic. Therefore, rather than applaud the manifold insightful points Hakimi makes, this essay zeroes in on two related assumptions in her article that I find questionable: first, Hakimi's reasoning about the law-creating effects of informal regulation and, on a related note, the distinction between legality and legitimacy; and second, her tendency to embrace uncritically the particularistic nature of informal regulation. Both points implicate what I term the “hyper-responsiveness” of the law, that is, the (problematic) notion that every momentary political constellation should be reflected in the content of the law. In embracing law's hyper-responsiveness, Hakimi's article sidesteps a discussion of the ambivalent implications of informal regulation.

Necessity and Proportionality in Morality and Law

2020 ◽  
pp. 3-38
Author(s):  
Jeff McMahan
Keyword(s):  
Moral Philosophy ◽  
Moral Theory ◽  
Armed Conflict ◽  
Final Section ◽  
Systematic Analysis ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Law Of Armed Conflict ◽  
Different Types ◽  
The Law

This chapter offers a systematic analysis of the notion of proportionality in both moral philosophy and law, particularly the law of armed conflict. Proportionality is a constraint on different forms of justification for harming people. There are thus different forms of proportionality corresponding to different types of justification. The proportionality constraint should not be conflated with a different constraint—the necessity constraint—which in turn must be carefully distinguished from necessity as a form of justification. The chapter explains how the proportionality constraint and the necessity constraint are distinguished by the different comparisons they require. It further explains the relations between the requirement of proportionality in jus ad bellum and the requirement of proportionality in jus in bello and argues that the criterion of proportionality in the law of jus in bello is actually incoherent. The final section elucidates the various matters of moral theory that are relevant to understanding how the requirement of proportionality applies in practice to the action of combatants who fight in just wars.

TheJus Ad Bellum/Jus In BelloDistinction and the Law of Occupation

2008 ◽  
Vol 41 (1-2) ◽  
pp. 246-301 ◽  
Author(s):  
Rotem Giladi
Keyword(s):  
Security Council ◽  
Armed Conflict ◽  
International Peace ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Broad Scope ◽  
Peace And Security ◽  
Occupied Territories ◽  
Conventional Expression ◽  
The Law

This is a preliminary inquiry into the application to occupation law of the distinction betweenjus in bello(or IHL) andjus ad bellum.Under current doctrine, the two are mutually exclusive: the former applies irrespective of the “nature or origin of the armed conflict or the causes espoused by the Parties.” I argue that occupation law, although generally considered part of IHL, is intrinsically less susceptible to a strict application of the distinction.Exploring its pedigree, meaning, and rationale, the paper notes the distinction's scant, soft Conventional expression and brief history, but also its fundamental character and the broad scope attributed to it under contemporary IHL. Although the distinction sometimes fulfill important humanitarian functions in occupied territories, occupation law—in regulating governance of territory—differs from ordinary IHL norms; this and other differences render the strict application of the distinction to occupation law, whose key norms often depend on jus ad bellum references to the “nature, origin and causes” of armed conflict, impossible.The last part of the Paper calls for a more nuanced approach to the application of the distinction to occupation law and identifies some of its contours. Such an approach can enhance the efficacy of occupation law and facilitate fulfillment of the two different functions of occupation law: protection of individuals and the maintenance of international peace and security. The Paper concludes with preliminary observations on the roles and powers, under bothjus ad bellumandjus in bello,of the Security Council with regard to occupied territories.

Lex Innocentium (697 AD): Adomnán of Iona – father of Western jus in bello

2019 ◽  
Vol 101 (911) ◽  
pp. 715-735
Author(s):  
James W. Houlihan
Keyword(s):  
Laws Of War ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
The Law ◽  
Effects Of War

AbstractThis article is concerned with an Irish law dating from 697 AD, called Lex Innocentium or the Law of the Innocents. It is also known as Cáin Adomnáin, being named after Adomnán (d. 704), ninth Abbot of Iona, who was responsible for its drafting and promulgation. The law was designed to offer legislative protection to women, children, clerics and other non-arms-bearing people, primarily, though not exclusively, in times of conflict. Today, the laws of war fall into two categories: those attempting to regulate when it is lawful or just to go to war, now called jus ad bellum, and those attempting to limit the awful effects of war by stipulating how it should be properly conducted (for instance, in providing for non-combatant immunity), now called jus in bello. By proscribing the killing and injuring of non-arms-bearing people, Lex Innocentium is an in bello law, and by virtue of its being the first known such law, Adomnán, its author, is the father of Western jus in bello.

15. The law of armed conflict

2019 ◽  
pp. 377-406
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Prisoners Of War ◽  
Armed Force ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Law Of Armed Conflict ◽  
The Law ◽  
The Right

This chapter assesses the law of armed conflict. The right to resort to armed force, known as ‘jus ad bellum’, is a body of law that addresses the permissibility of entering into war in the first place. Despite the restrictions imposed by this body of law, it is clear that international law does not fully forbid the use of force, and instances of armed disputes between and within States continue to exist. Consequently, a second, older body of law exists called ‘jus in bello’, or the law of armed conflict, which has sought to restrain, or at least to regulate, the actual conduct of hostilities. The basic imperative of this body of law has been to restrict warfare in order to account for humanitarian principles by prohibiting certain types of weapons, or protecting certain categories of persons, such as wounded combatants, prisoners of war, or the civilian population.

Limiting Third States’ Military Activities in the EEZ: ‘Due Regard Obligations’ and the Law on the Use of Force Applied to Nuclear Weapons

2019 ◽  
Vol 34 (1) ◽  
pp. 128-143
Author(s):  
Charlotte Beaucillon
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Use Of Force ◽  
General Analysis ◽  
Exclusive Economic Zone ◽  
Law Of The Sea ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Economic Zone ◽  
The Law

Abstract The aim of this article is to contribute to the general analysis of ‘due regard obligations’, through their articulation with branches of international law other than the law of the sea. More specifically, it focuses on the law of military activities at sea, as governed by international law on the use of force and nuclear weapons. It is argued here that the scope of the Law of the Sea Convention’s ‘due regard obligations’ cannot be examined in a vacuum, but should rather, to the extent possible, be interpreted in conformity with other related sources of international law. Reciprocally, this paper shows that some rules of jus ad bellum and jus in bello applicable to the use of nuclear weapons in a third state’s exclusive economic zone, fail to consider other simultaneously applicable obligations, which could well be grasped through the prism of ‘due regard’.

Sign in / Sign up

Export Citation Format

Share Document