scholarly journals The Just War and the Mystry of Self Defense

2019 ◽  
Vol 2 (2) ◽  
pp. p156
Author(s):  
Walid Fahmyt
Keyword(s):  
International Law ◽  
Just War ◽  
International Context ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Self Defense ◽  
Explicit Recognition ◽  
Two Phases ◽  
United Nations Charter ◽  
The Relationship

The theory of the Just War initiated by St. Augustine must absolutely seek peace. To avoid this being the case, two phases are defined: Jus ad Bellum; the Jus in Bello. Thus, self-defense as a just cause is a concept often addressed in international law and its explicit recognition in Article 51 of the United Nations Charter has made it even more present. But, from the adoption of the Charter to today, there are many examples of actions or arguments of states based on self-defense that are more or less in phase with each other. The most recent references to the concept of self-defense have developed in a particularly volatile international context since the attacks of September 11, 2001, and the consequences that ensued. The relationship between the just war and self-defense raises some questions: can the anti-terrorism war, the preventive war and the war against non-state actors be considered part of the principle of self-defense? What are the criteria for Jus ad Bellum and Jus in Bello considered during the Self- defense?

The responsibilities of victory: Jus Post Bellum and the Just War

2008 ◽  
Vol 34 (4) ◽  
pp. 601-625 ◽  
Author(s):  
ALEX J. BELLAMY
Keyword(s):  
International Law ◽  
Just War ◽  
Future Thinking ◽  
Jus In Bello ◽  
Jus Post Bellum ◽  
Moral Principles ◽  
Jus Ad Bellum ◽  
Moral Requirements ◽  
Moral Questions

AbstractRecent years have seen a growing interest in questions about justice after war (jus post bellum), fuelled in large part by moral questions about coalition operations in Afghanistan and Iraq. As a result, it has become common to argue that jus post bellum is a third strand of Just War thinking. This article evaluates this position. It argues that that there are broadly two ways of understanding moral requirements after war: a minimalist position which holds that moral principles derived largely from jus ad bellum and jus in bello concerns should constrain what victors are entitled to do after war and a maximalist position which holds that victors acquire additional responsibilities that are grounded more in liberalism and international law than in Just War thinking. Finding problems with both approaches, the article argues that it is premature to include jus post bellum as a third element of Just War thinking and concludes by setting out six principles to guide future thinking in this area.

Proportionality under Jus ad Bellum and Jus in Bello: Clarifying their Relationship

2012 ◽  
Vol 45 (1) ◽  
pp. 107-124 ◽  
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
Case Law ◽  
Military Operations ◽  
Military Operation ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Legal Literature ◽  
State Practice ◽  
The Individual ◽  
The Military ◽  
The Relationship

Proportionality is a condition provided under both jus ad bellum and jus in bello. Based on a particular interpretation of state practice and international case law, recent legal literature argues that the two notions of proportionality are interrelated in that proportionality under jus in bello is included in the assessment of proportionality under jus ad bellum. This article seeks to refute such a position and, more generally, to clarify the relationship between the two notions of proportionality.The main argument of the article is in line with the traditional position regarding the relationship between jus ad bellum and jus in bello. It is argued that, although sharing common features and being somewhat interconnected, the notions of proportionality provided under these two separate branches of international law remain independent of each other, mainly because of what is referred to in this article as the ‘general versus particular’ dichotomy, which characterises their relations. Proportionality under jus ad bellum is to be measured against the military operation as a whole, whereas proportionality under jus in bello is to be assessed against individual military attacks launched in the framework of this operation.This article nonetheless emphasises the risk of overlap between the assessments of the two notions of proportionality when the use of force involves only one or a few military operations. Indeed, in such situations, the ‘general versus particular’ dichotomy, which normally enables one to make a distinct assessment between the two notions of proportionality, is no longer applicable since it becomes impossible to distinguish between the military operation as a whole and the individual military attacks undertaken during this operation.

Military Targeting in the Context of Self-Defence Actions

2015 ◽  
Vol 84 (1) ◽  
pp. 3-28 ◽  
Author(s):  
James A. Green ◽  
Christopher P.M. Waters
Keyword(s):  
Target Selection ◽  
Jus In Bello ◽  
Customary International Law ◽  
Jus Ad Bellum ◽  
Conceptual Clarity ◽  
Starting Point ◽  
Definition Of ◽  
The Relationship ◽  
Self Defence ◽  
Selection Of

For self-defence actions to be lawful, they must be directed at military targets. The absolute prohibition on non-military targeting under the jus in bello is well known, but the jus ad bellum also limits the target selection of states conducting defensive operations. Restrictions on targeting form a key aspect of the customary international law criteria of necessity and proportionality. In most situations, the jus in bello will be the starting point for the definition of a military targeting rule. Yet it has been argued that there may be circumstances when the jus ad bellum and the jus in bello do not temporally or substantively overlap in situations of self-defence. In order to address any possible gaps in civilian protection, and to bring conceptual clarity to one particular dimension of the relationship between the two regimes, this article explores the independent sources of a military targeting rule. The aim is not to displace the jus in bello as the ‘lead’ regime on how targeting decisions must be made, or to undermine the traditional separation between the two ‘war law’ regimes. Rather, conceptual light is shed on a sometimes assumed but generally neglected dimension of the jus ad bellum’s necessity and proportionality criteria that may, in limited circumstances, have significance for our understanding of human protection during war.

Just and Unjust Uses of Limited Force

2021 ◽  
Author(s):  
Daniel R. Brunstetter
Keyword(s):  
Just War ◽  
Berlin Wall ◽  
Special Forces ◽  
Jus In Bello ◽  
Jus Post Bellum ◽  
Jus Ad Bellum ◽  
Use Context ◽  
Just War Tradition

Limited force—no-fly zones, limited strikes, Special Forces raids, and drones strikes outside “hot” battlefields—has been at the nexus of the moral and strategic debates about just war since the fall of the Berlin Wall but has remained largely under-theorized. The main premise of the book is that limited force is different than war in scope, strategic purpose, and ethical permissions and restraints. By revisiting the major wars animating contemporary just war scholarship (Kosovo, Afghanistan, Iraq, the drone “wars,” and Libya) and drawing insights from the just war tradition, this book teases out an ethical account of force-short-of-war. It covers the deliberation about whether to use limited force (jus ad vim), restraints that govern its use (jus in vi), when to stop (jus ex vi), and the after-use context (jus post vim). While these moral categories parallel to some extent their just war counterparts of jus ad bellum, jus in bello, jus post bellum, and jus ex bello, the book illustrates how they can be reimagined and recalibrated in a limited force context, while also introducing new specific to the dilemmas associated with escalation and risk. As the argument unfolds, the reader will be presented with a view of limited force as a moral alternative to war, exposed to a series of dilemmas that raise challenges regarding when and how limited force is used, and provided with a more precise and morally enriched vocabulary to talk about limited force and the responsibilities its use entails.

Sequences of Military Necessity for the Jus in Bello

2020 ◽  
pp. 247-284
Author(s):  
Dino Kritsiotis
Keyword(s):  
Hague Convention ◽  
Humanitarian Law ◽  
War And Peace ◽  
International Court Of Justice ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Additional Protocol ◽  
Self Defense ◽  
Military Necessity ◽  
International Court

This chapter considers several discrete snapshots or “sequences” in the life of military necessity—as it has come to be understood within the laws of the jus in bello. Commencing with its relationship with self-preservation under the laws of war and peace, the chapter proceeds to examine the idea of “necessity” of self-defense within the laws of the jus ad bellum; it then turns to “military necessity” as invoked in the Lieber Code, the 1907 Hague Regulations, Additional Protocol I of 1977 and the 1954 Hague Convention, the ICRC Study on Customary International Humanitarian Law as well as the advisory jurisprudence of the International Court of Justice. Consideration is given, too, to “necessity” as it features within the law of State responsibility, in order to more fully understand the function, status and standing of “military necessity” more generally within the jus in bello.

Introduction

2017 ◽  
Author(s):  
Fernando R. Tesón ◽  
Bas van der Vossen
Keyword(s):  
International Law ◽  
Just War ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Just War Theory ◽  
Self Defense ◽  
Collective Self

We introduce general concepts of just war theory and describe different kinds of war: national self-defense, collective self-defense, and humanitarian intervention. After laying down the conditions for the justification of humanitarian intervention, we highlight some of our differences. We conclude with an outline of the international law of use of force and some jurisprudential themes that bear on the current humanitarian intervention debate.

Underground Warfare and the Jus ad Bellum

2018 ◽  
Author(s):  
Daphné Richemond-Barak
Keyword(s):  
Military Force ◽  
Territorial Integrity ◽  
Jus Ad Bellum ◽  
Cross Border ◽  
Self Defense ◽  
Hostile Intent ◽  
The Right ◽  
The Relationship

This chapter discusses situations in which cross-border tunnels may lead to the outbreak of war. Cross-border tunnels violate sovereignty and territorial integrity and demonstrate hostile intent on the part of the neighboring entity. Various factors influence the victim state’s decision to go to war in such situations, such as the number of tunnels, their level of completion, their proximity to civilian-populated neighborhoods, and the relationship with the party that dug the tunnel. Not every cross-border tunnel will trigger the right to self-defense or the strategic urge to go to war: this chapter distinguishes between situations in which cross-border tunnels can lead to war and those in which they do lead to war. Cross-border threats do not significantly differ from other threats in this regard. As with other types of cross-border tensions, states may possess the right to react using military force but not make use of such right.

International Law and Armed Conflict

2010 ◽  
Author(s):  
Ward Thomas
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Just War ◽  
Use Of Force ◽  
The Other ◽  
World War ◽  
Self Defense ◽  
The Subject ◽  
Raison D’État ◽  
The One

International law and armed conflict have a rather contentious history together. One the one hand, armed conflict implies and absence of law, and yet, on the other, international law plays an important role in codifying the use of force. The UN Charter’s restrictions on the use of force, drafted in the waning days of a second cataclysmic world war, were intended to radically transform the centuries-old ideology of raison d’état, which viewed war as a sovereign prerogative. More precisely, Article 2(4) of the Charter forbids not just war but force of any kind, or even the threat of it. On its face, the Charter system is a model of simplicity, consisting of a clear prohibition and two exceptions to that prohibition. The apparent simplicity is misleading, however. Article 2(4) is violated so often that experts disagree about whether it should even be considered good law. The Chapter VII enforcement exception is rarely used, and the meaning of self-defense under Article 51 is the subject of contentious disagreement. Moreover, even some UN bodies have supported creating another exception (humanitarian intervention) that coexists uneasily with the organization’s foundational principles. In addition, there is yet another exception (the use of force by national liberation movements) that may be as significant as the others, yet is little discussed by contemporary commentators.

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