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.

1 Introduction

2016 ◽  
Author(s):  
Boothby William H
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
Important Distinction ◽  
Legal Rules ◽  
Arms Trade ◽  
Law Of Armed Conflict ◽  
The Law

This relatively brief chapter introduces the book as a whole. It positions weapons law within the framework of international law in general, and of the law of armed conflict in particular, noting the important distinctions between international and non-international armed conflicts, and between the law on the resort to the use of force and that which regulates the conduct of hostilities. The logical flow of the book is presented, and certain terms that are vital to the ensuing discussion, namely weapons, means of warfare and methods of warfare are explained. The all-important distinction between weapons law and the legal rules that regulate targeting is noted. A concluding section addresses the recently-adopted Arms Trade Treaty.

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.

7. Law, Politics, and the Use of Force

2018 ◽  
pp. 108-126
Author(s):  
Justin Morris
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Politics ◽  
Use Of Force ◽  
Apparent Paradox ◽  
Power Politics ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Legal Constraint ◽  
Self Interest

This chapter examines the place of international law in international politics, with particular emphasis on whether legal constraint is effective in averting or limiting the use of force by states. It begins with a discussion of the efficacy of international law in regulating the behaviour of states, focusing on the so-called perception–reality gap in international law. It then considers various reasons why states obey the law, from fear of coercion to self-interest and perceptions of legitimacy. It also explores the role and status of breaches of international law in international politics as well as the functions of the two laws of armed conflict, namely, jus ad bellum and jus in bello. Finally, it analyses the apparent paradox of legal constraint on warfare in relation to power politics and the mitigatory effects of norms governing the conduct of war.

Proportionality and Force in International Law

1993 ◽  
Vol 87 (3) ◽  
pp. 391-413 ◽  
Author(s):  
Judith Gail Gardam
Keyword(s):  
Armed Conflict ◽  
Use Of Force ◽  
Fundamental Principle ◽  
Armed Conflicts ◽  
Customary Law ◽  
Law Of Armed Conflict ◽  
The Law ◽  
United Nations System ◽  
The Right ◽  
The Cost

Proportionality is a fundamental component of the law on the use of force and the law of armed conflict—the jus ad bellum and the jus in bello. In the former, it refers to a belligerent’s response to a grievance and, in the latter, to the balance to be struck between the achievement of a military goal and the cost in terms of lives. The legitimate resort to force under the United Nations system is regarded by most commentators as restricted to the use of force in self-defense under Article 51 and collective security action under chapter VII of the UN Charter. The resort to force in both these situations is limited by the customary law requirement that it be proportionate to the unlawful aggression that gave rise to the right. In the law of armed conflict, the notion of proportionality is based on the fundamental principle that belligerents do not enjoy an unlimited choice of means to inflict damage on the enemy. Since the entry into force of Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, proportionality has been both a conventional and a customary principle of the law of armed conflict.

Proportionality in the Law of Armed Conflict

2014 ◽  
Author(s):  
Enzo Cannizzaro
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Alternative Model ◽  
Armed Force ◽  
Humanitarian Law ◽  
Legal Control ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Law Making

This chapter focuses on proportionality as a device in international law and as an alternative model of law-making. It first discusses proportionality as a form of legal control in armed conflict, the notion of proportionality in humanitarian law (ius in bello), by itself and in its relations with the law governing the resort to the use of armed force (ius ad bellum). It then analyses the structure and content of proportionality inius in belloand inius ad bellum, how proportionality is applied in the treatment of civilians, and the structure of the proportionality assessment in symmetrical and asymmetrical legal relations.

27. The Law of Armed Conflict (International Humanitarian Law)

2018 ◽  
Author(s):  
David Turns
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Prisoners Of War ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Late Nineteenth Century ◽  
Humanitarian Law ◽  
Law Of Armed Conflict ◽  
Scope Of Application ◽  
The Law

The international law of armed conflict (also known as international humanitarian law or the law of war) regulates the conduct of hostilities—including the use of weaponry—and the protection of victims in situations of both international and non-international armed conflict. Rooted in customary law, often of very great antiquity, since the late nineteenth century it has become one of the most intensively codified areas of international law. This chapter outlines the scope of application of the law; issues of personal status (combatants and civilians); the conduct of hostilities (methods and means of warfare, including choice of weapons and targeting operations); the protection of victims (sick, wounded, shipwrecked, prisoners of war, and civilians); and various ways of securing the law’s implementation and enforcement.

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’.

Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese war

2006 ◽  
Vol 88 (864) ◽  
pp. 779-792 ◽  
Author(s):  
Enzo Cannizzaro
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Legal Framework ◽  
Large Area ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Individual Actions ◽  
Proportionality Test ◽  
Self Defence

AbstractThis article analyses the role and content of proportionality under contemporary international law governing the use of force, with a view to clarifying the legal framework governing the conduct of the parties to an armed conflict. In the system of jus ad bellum, protection is primarily granted to the interest of the attacked state in repelling the attack; the other competing interests are considered only to curtail the choice of the means to be employed in order to achieve that aim. Conversely, in the system of jus in bello there is by definition no prevailing interest, but instead a variety of interests and values which are entitled to equal protection of the law and must be balanced against each other. The existence of two distinct normative systems, with distinct standards of legality applicable to the same conduct, does not as a rule give rise to major problems. The legality of recourse to force is measured against the proportionality of self-defence, whereas individual actions would have to conform to the requirement of proportionality in jus in bello. However, beyond the large area in which these two standards overlap, there might be situations in which the strict application of the jus ad bellum standard makes it impossible to achieve the aims of jus in bello. In these cases, the proportionality test under jus in bello must be regarded as part of the proportionality test under jus ad bellum. States must thus take humanitarian implications into account in determining the level of security they may seek to obtain using military action.

Automatic Cyber Defence and the Laws of War

2018 ◽  
Vol 60 (1) ◽  
pp. 203-237
Author(s):  
Nicholas Tsagourias ◽  
Russell Buchan
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Computer Hardware ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Cyber Attack ◽  
Armed Attack ◽  
Jus In Bello ◽  
Jus Ad Bellum

Automatic cyber defence describes computer operations to neutralise a cyber attack. Once a system detects that it is under cyber attack, it automatically launches offensive cyber operations that pursue the attacker back to its own network with the objective of rescuing stolen data or disabling or destroying the computer hardware and software that is responsible for hosting and distributing the attacking code. The aim of this article is to examine the legality of automatic cyber defence under the law regulating the use of force in international law (jus ad bellum) and under international humanitarian law (jus in bello). Thus, the first part of this article examines automatic cyber defence in the context of the jus ad bellum by considering the legal requirements of an armed attack, necessity, and proportionality. In the second part, it examines the jus in bello aspects of automatic cyber defence and, in particular, whether it triggers an international or a non-international armed conflict and, if so, whether it can comply with the principles of distinction and proportionality.

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