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.

Underground Warfare and the Jus in Bello

2018 ◽  
Author(s):  
Daphné Richemond-Barak
Keyword(s):  
Conceptual Framework ◽  
International Law ◽  
Legal Status ◽  
Legal Framework ◽  
Laws Of War ◽  
Underground Structures ◽  
Jus In Bello ◽  
Broad Array ◽  
The Law

This chapter focuses on the laws of war, a legal framework applicable to a broad array of war-time tunnel-related issues, including their legal status, the type of weapons that may be used inside tunnels, and precautions that must be taken vis-à-vis civilians during anti-tunnel operations. This chapter argues that the law does not prohibit the use of tunnels and other underground structures in times of war. Underground warfare—in any of its many forms—does not amount to perfidy, which would have made it illegal under international law. Tunnels, however, often amount to military objectives and, as such, must be kept separate from civilians and civilian infrastructure. Ultimately this chapter demonstrates that, despite the law’s silence, underground warfare does raise unique issues under IHL. It also offers a conceptual framework for analyzing tunnels and assessing the legality of anti-tunnel operations in war.

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.

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.

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.

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