This article has been written by Ms. Tarjani Singh a Third-year student of Symbiosis Law School, NOIDA.

Abstract:

International Humanitarian Law (IHL) is a set of rules that apply in armed conflict and seek to minimize human suffering. IHL is divided into two main branches: jus ad bellum, which governs the right to resort to force, and jus in bello, which governs the conduct of hostilities.

Jus ad bellum prohibits the use of force except in certain circumstances, such as self-defence or collective security measures authorized by the United Nations Security Council. Jus in bello protects civilians, prisoners of war, and wounded combatants from violence and other forms of harm. The two branches of IHL are interrelated. For example, a violation of jus ad bellum, such as an illegal war of aggression, may make it more difficult for the parties to the conflict to comply with jus in bello rules. Conversely, violations of jus in bello, such as deliberate attacks on civilians, can undermine the legitimacy of the war under jus ad bellum.

International Humanitarian Law faces a number of challenges, including the difficulty of interpreting and applying its rules in specific situations, the weak enforcement mechanisms, and the evolution of warfare with new technologies and tactics. Despite these challenges, IHL remains an important tool for minimizing the suffering caused by armed conflict.

Introduction: 

Navigating the Fog of War: Jus in Bello and Jus ad Bellum in International Humanitarian Law

Throughout the history, the fog of war has shrouded armed conflict, blurring the lines between permissible and prohibited conduct. International Humanitarian Law (IHL), a complex tapestry woven from treaties and customary practices, aims to bring some clarity to this battlefield, separating the acceptable from the abhorrent. At its core lie two distinct, yet intricately linked, branches: jus ad bellum, governing the right to resort to force, and jus in bello, dictating the conduct during armed conflict.

Let us imagine a battlefield shrouded in the chaos of combat, where the line between right and wrong blurs in the heat of the moment. Soldiers grapple with impossible choices, caught between fulfilling military objectives and preserving human dignity. This is the “fog of war,” a perilous landscape where International Humanitarian Law (IHL) emerges as a guiding light, seeking to illuminate the path towards a more humane and civilized conduct during armed conflict.

At the heart of International Humanitarian Law lie two distinct, yet intricately interwoven, branches: jus ad bellum, governing the right to resort to force, and jus in bello, dictating the permissible conduct during armed conflict. Jus ad bellum acts as a sentinel, scrutinizing the very origins of war, seeking to prevent conflicts and limit recourse to violence. It establishes a global order where force is not the default instrument of statecraft, but a last resort reserved for exceptional circumstances defined by principles such as self-defence and collective security (Charter of the United Nations, Art. 2(4)).

The phrase Jus in bello, on the other hand, takes its place on the battlefield itself, minimizing the suffering of civilians and combatants alike. It is a shield against the barbarity of war, dictating the “how” of armed conflict. The Geneva Conventions, cornerstone treaties within IHL, stand as testaments to this mission, providing specific protections for vulnerable groups like prisoners of war and wounded combatants, and outlawing heinous acts like torture and indiscriminate attacks (Geneva Conventions I-IV).

But why is International Humanitarian Law important? Why are these intricate legal frameworks and moral codes needed during the chaos and desperation of war? The answer lies in the fundamental human right to life and dignity, a right that transcends even the direst of circumstances. IHL recognizes that even during war, individuals retain their inherent humanity, and their right to non-combatant immunity, fair treatment, and freedom from suffering must be protected (Common Article 3 of the Geneva Conventions).

Moreover, International Humanitarian Law is not merely an aspirational code of conduct; it is a body of binding international law with real-world consequences. Violations of IHL constitute war crimes, punishable by national and international tribunals (Rome Statute of the International Criminal Court, Art. 5). This legal framework ensures accountability, deterring violations and fostering a culture of compliance that ultimately benefits all parties involved in armed conflict.

However, the path towards a more humane battlefield is not without its challenges. The “fog of war” itself can obscure the application of IHL principles, leading to interpretations and decisions made under immense pressure and often limited information. Additionally, enforcing IHL in the face of competing political and military interests remains a persistent struggle. Despite these obstacles, the principles of jus ad bellum and jus in bello offer a flicker of hope in the darkness of war, reminding us that even in the midst of conflict, humanity, justice, and the rule of law can prevail.

This article seeks to delve deeper into these intricate frameworks, exploring their historical evolution, specific legal frameworks, and ongoing challenges. By examining the interplay between jus ad bellum and jus in bello, and analysing their practical application in real-world conflicts, we hope to shed light on this vital body of law and its enduring importance in guiding us towards a future where the fog of war yields to the bright light of human rights and international legal protections.

• Jus ad Bellum: The Right to Wage War

Imagine a world where any nation could unleash their military might upon another at a whim. This dystopian vision becomes the harsh reality in the absence of jus ad bellum. This body of rules restricts the use of force, aiming to prevent arbitrary conflict and promote peaceful resolution.

The cornerstone of jus ad bellum lies in Article 2(4) of the United Nations Charter, which prohibits the use of force “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” Exceptions to this rule are narrow and tightly defined, including self-defence against an armed attack, collective security measures authorized by the UN Security Council, and humanitarian intervention in certain extraordinary circumstances.

Jus ad bellum also delves into the just war theory, a historical framework developed by theologians and philosophers. This theory posits three criteria for a legitimate war: a just cause (e.g., self-defence or preventing atrocities), legitimate authority (a properly constituted government acting in good faith), and right intention (seeking a just peace, not personal gain). While criticized for its subjectivity, the just war theory remains a influential tool in analysing the legitimacy of armed conflict.

Challenges and Controversies:

• Applying jus ad bellum in real-world scenarios can be complex and contested. Some key challenges include:
• Interpretation of Exceptions: Ambiguity regarding terms like “imminent attack” or “humanitarian intervention” can lead to differing interpretations and potentially misuse of exceptions.
• Political Interests: Jus ad bellum can be caught in the crossfire of political agendas, with powerful states sometimes justifying interventions for reasons beyond those recognized by international law.
• Enforcement Mechanisms: The lack of a strong enforcement body for jus ad bellum makes it vulnerable to violations, and holding states accountable for illegal use of force remains a major challenge.

Continuing relevance:

Despite these challenges, jus ad bellum remains a crucial framework for preventing conflict and promoting a more peaceful world. By continuing to refine its principles, address loopholes, and strengthen enforcement mechanisms, we can move closer to a future where the use of force is truly the last resort.

Understanding jus ad bellum’s nuances and complexities is essential for critically analyzing international conflicts, advocating for peaceful resolutions, and holding states accountable for violations of international law. Further exploration into specific cases, interpretations, and ongoing debates on jus ad bellum can provide deeper insights into its practical application and potential for a more just global order.

• Jus in Bello: Rules of Engagement

Once the unfortunate reality of war unfolds, jus in bello steps in to minimize human suffering and protect civilians. Imagine soldiers operating in a chaotic battlefield, with the potential to unleash violence with impunity. Jus in bello establishes boundaries, drawing a line between acceptable military tactics and war crimes.

Central to jus in bello are the Geneva Conventions, a series of treaties that provide specific protections for civilians, prisoners of war, and wounded combatants. These protections include, among others, prohibiting attacks on civilians and cultural objects, guaranteeing fair treatment of prisoners, and providing medical care to wounded combatants.

Beyond the Geneva Conventions, numerous other treaties and customary international law rules form the tapestry of jus in bello. These include limitations on the use of certain weapons, such as chemical and biological weapons, and restrictions on methods of warfare, such as indiscriminate attacks or targeting civilian infrastructure.

Jus in Bello: A Tapestry of Protections Beyond the Battlefield

Beyond the immediate image of shielding civilians, jus in bello weaves a complex tapestry of protections that extend far into the intricate realities of armed conflict. While the Geneva Conventions serve as the foundational pillars, numerous other threads, woven from treaties and customary international law, contribute to this framework of minimizing human suffering.

Beyond the Civilians: Protecting Cultural Treasures and the Environment:

While civilian protection stands paramount, jus in bello recognizes the significance of cultural heritage and the environment. The Hague Convention for the Protection of Cultural Property in Armed Conflict safeguards museums, monuments, and works of art from deliberate destruction or appropriation. Similarly, environmental protocols within jus in bello aim to minimize the detrimental impact of armed conflict on ecosystems and natural resources (Geneva Convention III, Protocol III).

Regulating Weapons: From Chemical to Cyber:

Beyond restrictions on targeting civilians, jus in bello establishes limitations on the use of specific weapons. Chemical and biological weapons, for instance, are categorically prohibited due to their indiscriminate and devastating nature (Chemical Weapons Convention, Biological Weapons Convention). Similarly, emerging technologies like landmines and cluster munitions are subject to specific treaties (Convention on the Prohibition of Anti-Personnel Mines, Convention on Cluster Munitions) that seek to restrict their use due to their indiscriminate and often long-lasting impact.

Methods of Warfare: Navigating the Gray Areas of Proportionality:

Jus in bello acknowledges that armed conflict necessitates military action, but it seeks to limit the harm caused by regulating methods of warfare. The principle of proportionality, enshrined in customary international law, demands that the anticipated military advantage of an attack outweigh the expected civilian harm. However, determining this balance remains a constant challenge, often fraught with ethical and legal complexities. In cases of indiscriminate attacks or deliberate targeting of civilian infrastructure, violations of jus in bello can readily occur (International Law Commission Draft Conclusions on Identification of Customary International Law, Use of Force in Armed Conflict).

Accountability and Consequences: Deterrence and Justice:

Jus in bello is not merely a set of principles; it carries real-world consequences. Violations of its provisions constitute war crimes, punishable by national and international tribunals (Rome Statute of the International Criminal Court). This system of accountability serves as a crucial deterrent, aiming to prevent violations and foster compliance. By bringing perpetrators to justice, jus in bello upholds the fundamental principle of human dignity even amidst the chaos of war.

• The Intertwined Threads: Jus in Bello and Jus ad Bellum in Action

While conceptually distinct, jus in bello and jus ad bellum are not isolated spheres. The legitimacy of a war under jus ad bellum can influence the application of jus in bello rules. For instance, a war of aggression may lead to a stricter interpretation of jus in bello obligations, with increased scrutiny of military conduct. Conversely, violations of jus in bello, such as deliberate attacks on civilians, can potentially undermine the original justification for the war under jus ad bellum.

This interplay also manifests in individual accountability. Soldiers who commit war crimes, regardless of whether their nation’s use of force was deemed legitimate under jus ad bellum, can be prosecuted for individual criminal responsibility. This principle underscores the fundamental human right to protection from violence, independent of the political justifications of specific conflicts.

• Challenges and Controversies: Navigating the Gray Areas

Despite its crucial role in mitigating the horrors of war, IHL faces ongoing challenges and controversies. One key issue is the interpretation and application of its rules in specific situations. The ambiguous nature of some concepts, such as “proportionality” in military attacks, can lead to differing interpretations and potential inconsistencies in enforcement.

Another challenge lies in ensuring compliance with IHL. Weak enforcement mechanisms, coupled with political and military expediency, can sometimes lead to violations going unpunished. Holding individual perpetrators accountable often requires navigating complex legal and political landscapes, further hindering effective enforcement.

Furthermore, the evolution of warfare with new technologies and tactics raises new questions about the applicability of existing IHL norms. For instance, cyberattacks and the use of autonomous weapons systems introduce novel challenges to traditional jus in bello principles. Adapting IHL to these new realities requires ongoing dialogue and international cooperation.

Conclusion:

Looking Forward: Toward a More Humane Battlefield: The quest to minimize the suffering caused by armed conflict is a continuous journey. Jus in bello and jus ad bellum, though imperfect, represent vital strides in this direction. Recognizing the limitations of IHL is crucial, but striving to strengthen its framework and ensure its effective application remains an essential endeavour. By promoting greater awareness of IHL norms, advocating for stronger enforcement mechanisms, and adapting these rules to emerging challenges, we can   work towards a future where the fog of war is penetrated. The journey towards a more humane battlefield is constant. Strengthening IHL requires ongoing dialogue, adaptation to new technologies, and robust enforcement mechanisms. By promoting IHL awareness, advocating for accountability, and adapting its framework to emerging landscapes, we can chip away at the fog of war, revealing a pathway towards a future where jus in bello and jus ad bellum illuminates the path to a world where humanity prevails, even in the face of conflict.

• References:

• www.insurancejournal.com/magazines/mag-features/2022/04/04/660674.htm
• Charter of the United Nations
• Geneva Conventions I-IV
• Rome Statute of the International Criminal Court
• Michael N. Schmitt, “The Caroline Doctrine in Contemporary Practice and Jurisprudence” (2011),(accessed on 6 January 2024,10.00 AM)
• Michael Walzer, “Just and Unjust Wars: A Moral Argument” (2007), ),(accessed on 8 January 2024,10.30 AM)
• International Law Commission, “Draft Conclusions on Identification of customary international law, with commentaries, Part I: Use of force in armed conflict” (2016), ),(accessed on 9 January 2024,11.00 AM)
• Hague Convention for the Protection of Cultural Property in Armed Conflict
• Geneva Convention III, Protocol III
• Chemical Weapons Convention
• Biological Weapons Convention
• Convention on the Prohibition of Anti-Personnel Mines
• Convention on Cluster Munitions
• International Law Commission Draft Conclusions on Identification of Customary International Law, Use of Force in Armed Conflict