THE USE OF FORCE IN INTERNATIONAL LAW: JUS AD BELLUM AND JUS IN BELLO IN THE 21st CENTURY

INTRODUCTION

The 21st century has witnessed a complex and evolving landscape of armed conflict, challenging the traditional frameworks of international law governing the use of force. Just war theory deals with the justification of how and why wars are fought. The justification can be either theoretical or historical. Just war theory examines the ethical justification for using force and explores the permissible forms of warfare. The historical aspect, often known as the ‘just war tradition,’ explores the historical evolution of rules and agreements governing warfare. While the core principles of jus ad bellum (the right to go to war) and jus in bello (the laws of war) remain fundamental, their application faces unprecedented challenges in the contemporary era. These challenges include the rise of non-state actors, the emergence of asymmetrical warfare, and the rapid advancement of military technologies.[1]

HISTORY OF JUS AD BELLUM

The concept of jus ad bellum, which governs the legality of using force between states, traces its origins to ancient just war theories. Early philosophers like St. Augustine and Thomas Aquinas developed frameworks to determine when war could be morally justified. These frameworks centered on three core principles: a legitimate authority must declare the war, a just cause must exist, and the war must be waged with the right intention. While these ideas have evolved, the Treaty of Westphalia (1648) significantly shaped modern international relations by establishing the principle of state sovereignty, which generally discourages interference in the internal affairs of other states.

The modern legal framework for jus ad bellum began to solidify with the establishment of the League of Nations after World War I. Despite its aim of collective security, the League failed to prevent the outbreak of World War II. The United Nations Charter, adopted in 1945 following this devastating conflict, marked a pivotal shift. Article 2(4) of the Charter introduced a general prohibition on the use of force, with exceptions for self-defence (Article 51) and actions authorized by the Security Council under Chapter VII. This framework underscored a global commitment to maintaining peace and resolving disputes through diplomatic means. However, challenges and debates surrounding the interpretation and application of these principles continue to this day.

LEGAL FRAMEWORK OF JUS AS BELLUM

Jus ad bellum is the branch of international law that determines the legality of a state’s use of force. It focuses on the conditions under which states may legitimately initiate armed conflict, aiming to uphold international peace and security by restricting the use of force to justified circumstances. The framework of Jus ad Bellum is enshrined in the United Nations Charter 1945 and customary international law as follows:

1. Article 2(4) of the UN Charter- This article of the UN Charter constitutes the cornerstone of jus ad bellum, prohibiting the threat or use of force in international relations which is as follows:

“All Members shall refrain in their international relations from the threat or 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.” [2]

This prohibition on the use of force is both universal and comprehensive. It aims to prevent the arbitrary use of force and to deter states from pursuing expansionist agendas through military means.

2. Self Defence under Article 51- Categorized under the principle of just cause, Article 51 of the UN Charter acknowledges the inherent right of states to individual or collective self-defence against armed attack. This right, however, is not absolute. It is subject to the principles of necessity and proportionality, meaning that any use of force in self-defence must be necessary to repel the attack and must be proportionate to the threat faced.[3]
3. UN Security Council Authorization- The UN Security Council, under Chapter VII of the Charter, holds the authority to authorize the use of force to maintain international peace and security. This powerful mandate has been a source of ongoing debate, particularly concerning the interpretation of Chapter VII and the potential for political biases to influence the Council’s decisions.[4]

PRINCIPLES OF JUS AD BELLUM

1. Necessity (or Last Resort)- The principle of ultima ratio dictates that the use of force should only be considered after all peaceful avenues for conflict resolution have been exhausted and is an absolute necessity. This emphasizes that war should not be a first resort but a last resort, employed only when all other options have been genuinely explored and proven ineffective. These alternative measures include diplomacy, negotiations, economic sanctions, mediation, and other non-violent approaches. Before resorting to force, states must demonstrate a genuine effort to explore these peaceful options and provide evidence that no reasonable alternative exists to address the conflict.

However, determining when peaceful means have been truly exhausted can be subjective and vary between states. Furthermore, the urgency of certain situations, such as an imminent armed attack, may present challenges, with some states arguing that there is insufficient time to pursue peaceful resolution.

2. Proportionality- The principle of proportionality mandates that the scale, scope, and consequences of using force must be commensurate with the harm being addressed or the threat being faced. This ensures that the use of force does not cause unnecessary destruction or suffering. The anticipated benefits of military action, such as restoring peace or repelling aggression, must outweigh the potential harm it inflicts. Even with a just cause, excessive or overwhelming force violates the proportionality principle. For instance, in self-defence, the response should be no greater than necessary to neutralize the threat. The 1981 Israeli attack on an Iraqi nuclear reactor, justified as self-defence, faced criticism for potentially exceeding proportionality due to the perceived disproportionate response to a potential, rather than an immediate, threat.
3. Imminence- The principle of imminence is crucial for the legality of anticipatory self-defence, where force is used to pre-empt an impending attack. To be lawful, this action requires an immediate and unavoidable threat, with clear evidence of an imminent attack. This principle has historical roots in the Caroline Doctrine (1837), which established that self-defence is only justifiable when the need for it is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

A key distinction lies between pre-emptive and preventive strikes. Pre-emptive strikes target imminent threats, such as Israel’s actions during the Six-Day War (1967), often cited as examples of legitimate self-defence. In contrast, preventive strikes target potential future threats, which are more controversial and frequently considered violations of jus ad bellum. The 2003 U.S. invasion of Iraq is often cited as an example of a preventive strike.

4. Legitimate Authority- The principle of legitimate authority mandates that only entities recognized as having lawful power can initiate the use of force. This crucial element ensures accountability and prevents non-state actors or rogue groups from justifying violence as legitimate warfare. Sovereign States possess the inherent right to engage in war when necessary and justified under jus ad bellum principles.

Additionally, the UN Security Council, under Chapter VII of the UN Charter, can authorize the use of force to maintain or restore international peace and security. Historical examples include the UN-authorized interventions in Korea (1950) and Iraq (1990). While regional organizations like NATO or the African Union may also undertake military action, such interventions generally require Security Council approval to maintain international legality.

5. Right Intention– The principle of right intention within jus ad bellum demands that the use of force be genuinely aligned with the stated just cause. This ensures that wars are fought for legitimate purposes, not driven by ulterior motives. The primary goal must be to address the specific threat or harm identified in the just cause. For instance, humanitarian interventions should focus on alleviating suffering, not on regime change or economic gain. Using just causes as a pretext for aggression, territorial expansion, or resource acquisition directly undermines this principle.

States often have mixed motives for war, with some less noble than others. The 2011 NATO-led intervention in Libya, while initially justified as protecting civilians, faced criticism for ultimately prioritizing regime change. Determining a state’s true intention can be challenging, particularly when public pronouncements diverge from internal objectives.

CONTEMPORARARY CHALLENGES OF JUS AD BELLUM

The application of jus ad bellum in the 21st century faces significant challenges due to the evolving nature of warfare and global politics. The rise of non-state actors, such as terrorist organizations like Al-Qaeda and ISIS, has blurred traditional definitions of armed conflict. States have invoked the right to self-defence against these groups, even when they operate within the territory of another state, as seen in the U.S. response to the 9/11 attacks. This raises complex questions about state responsibility when non-state actors operate from within their borders and whether force can be legitimately used against the host state.

Furthermore, the concepts of pre-emptive and preventive strikes have become increasingly contentious. While pre-emptive strikes, intended to neutralize an immediate threat, are generally accepted, preventive strikes, targeting potential future threats, are more controversial. The 1967 Six-Day War is often cited as a case of pre-emptive self-defence, while the 2003 invasion of Iraq, justified on the grounds of preventing WMD development, is a prominent example of a preventive strike. This raises concerns about the potential for misuse and the erosion of the principle of imminence.

Cyber warfare presents unique challenges to the jus ad bellum framework. Determining whether cyberattacks on critical infrastructure constitute armed attacks under Article 51 is complex. Moreover, responding proportionately to such attacks is difficult, especially when the perpetrator’s identity is unclear. These challenges require innovative approaches to international law.

The legality of humanitarian intervention and the Responsibility to Protect (R2P) remains a contentious issue. While R2P aims to prevent atrocities, its application without Security Council authorization raises concerns about potential abuse and selectivity. The intervention in Libya (2011) serves as an example of the complexities and controversies surrounding R2P.

Finally, the emergence of grey-zone conflicts and hybrid warfare further complicates the application of jus ad bellum. These conflicts involve a blend of conventional and unconventional tactics, including cyber operations, disinformation campaigns, and the use of proxy forces. Russia’s actions in Crimea (2014) and other ongoing conflicts demonstrate the challenges of addressing these multifaceted threats within the existing legal framework.

HISTORY OF JUS IN BELLO

The principles of jus in bello, which govern the conduct of hostilities, also have deep historical roots. Ancient civilizations, including those in Greece, Rome, and India, recognized certain rules of warfare, such as sparing non-combatants. In medieval Europe, chivalric codes and religious and philosophical traditions further emphasized the protection of the innocent. By the 19th century, these customary practices gradually evolved into codified rules enshrined in international treaties.

The Geneva Conventions of 1864 represent a landmark in the development of jus in bello, the laws of war. Initiated by Henry Dunant, founder of the Red Cross, these conventions focused on protecting wounded soldiers and medical personnel. Subsequent treaties expanded the scope of jus in bello, addressing crucial issues such as the treatment of prisoners of war, the protection of civilians, and restrictions on the use of certain weapons. The Hague Conventions of 1899 and 1907 further refined these rules by establishing regulations on the permissible means and methods of warfare.

The Geneva Conventions of 1949, adopted in the aftermath of World War II, serve as the cornerstone of modern jus in bello, the laws of war. These conventions established comprehensive protections for individuals affected by armed conflict, including civilians, prisoners of war, and the wounded. Subsequent protocols, such as the 1977 Additional Protocols, expanded these protections to address issues related to non-international armed conflicts and further safeguard civilian populations. These historical developments signify a growing international consensus on the importance of balancing military necessity with the imperative of upholding humanitarian concerns during armed conflict.

LEGAL FRAMEWORK OF JUS IN BELLO

Jus in bello, the law governing the conduct of hostilities, aims to minimize human suffering and protect those not directly involved in armed conflict. This body of law applies regardless of whether the war itself is legally justified under jus ad bellum, meaning all parties to a conflict are bound by its rules. Rooted in treaties, customary international law, and judicial interpretations, jus in bello primarily focuses on regulating how wars are fought, emphasizing the need to minimize unnecessary harm and uphold human dignity on the battlefield. The legal framework of Jus In Bello is as follows:

1. Geneva Convention,1949- The Geneva Conventions of 1949 serve as the cornerstone of modern international humanitarian law (IHL), providing the primary legal framework for jus in bello- the laws of war. These four treaties address the humane treatment of individuals during armed conflict, encompassing both international and non-international conflicts.

• The First Geneva Convention focuses on the protection of wounded and sick combatants on land, emphasizing humane treatment and respect for medical personnel and facilities. The Second Geneva Convention extends these protections to those wounded, sick, or shipwrecked at sea, ensuring humane treatment for all individuals regardless of nationality or status.
• The Third Geneva Convention addresses the treatment of Prisoners of War (POWs). It prohibits torture, coercion, and inhumane treatment while ensuring access to medical care, communication with families, and the safeguarding of their dignity. The Fourth Geneva Convention centers on the protection of civilians in times of war. It prohibits acts such as deportation, forcible transfer, hostage-taking, and collective punishment. It prohibits acts such as deportation, forcible transfer, hostage-taking, and collective punishment.[5]

2. Geneva Convention Additional Protocols – The Geneva Conventions, foundational treaties for the protection of victims of war, have been supplemented by three Additional Protocols to address the evolving nature of armed conflict. These Protocols aim to refine and strengthen the protections afforded to individuals in various war settings.

• Additional Protocol I, 1977 focuses on international armed conflicts, such as wars between states. It reinforces key principles like distinction (differentiating between combatants and civilians), proportionality (ensuring that military advantage is not disproportionate to the harm caused to civilians), and necessity (limiting the use of force to what is essential). This Protocol introduces detailed provisions on the protection of civilians and civilian objects, prohibits indiscriminate attacks and the use of starvation as a method of warfare, and emphasizes the need to minimize civilian casualties.
• Additional Protocol II, 1977 addresses non-international armed conflicts, such as civil wars. It provides crucial protections for civilians and combatants who have ceased to participate in hostilities, such as wounded, sick, and captured individuals. This Protocol explicitly prohibits acts of terrorism, rape, slavery, enforced disappearances, and other grave breaches of humanitarian law.
• Finally, Additional Protocol III, 2005 introduced the “Red Crystal” as an additional emblem for use by humanitarian organizations. This emblem, alongside the traditional Red Cross and Red Crescent, provides a neutral symbol for protection and assistance in conflict zones, ensuring that humanitarian aid can reach those in need regardless of their affiliation.

These Protocols represent significant advancements in international humanitarian law, reflecting the evolving understanding of the complexities of armed conflict and the imperative to protect human life and dignity in all circumstances.[6]

3. The Hague Convention, 1899 and 1907- The Hague Conventions of 1899 and 1907, along with their associated declarations, constitute a cornerstone of jus in bello, the laws of war. These conventions primarily focus on regulating the methods and means of warfare, aiming to minimize human suffering and protect civilians and civilian objects. Key provisions of the Hague Conventions include regulations on hostilities. They prohibit the use of certain weapons and tactics, such as poison and treachery. Furthermore, they regulate the use of landmines, bombs, and naval blockades, seeking to mitigate their indiscriminate impact.

The Hague Conventions also emphasize the protection of property and cultural heritage. They prohibit the unnecessary destruction of enemy property and provide specific protections for cultural sites, monuments, and places of worship, recognizing their historical and cultural significance. A significant contribution of the 1899 Hague Convention is the Martens Clause. This clause emphasizes that even in situations not explicitly covered by specific treaties, the principles of humanity and the dictates of public conscience must always be respected. This serves as a crucial safeguard, ensuring that even in the face of evolving warfare, fundamental human values remain paramount.[7]

4. Customary International Law– Customary international law plays a vital role in jus in bello, particularly in areas not explicitly addressed by treaties. These unwritten norms emerge from consistent state practice, coupled with the belief that such practices are legally binding (opinio juris). Examples of customary rules include the prohibition of attacks on civilians and civilian objects, the obligation to respect and protect medical facilities and personnel, and the prohibition of torture and inhumane treatment of combatants and non-combatants. Customary law possesses significant relevance. Firstly, it applies universally, encompassing states that have not ratified specific treaties, such as the Geneva Conventions. Secondly, it effectively fills gaps in treaty law, particularly in contemporary conflicts involving non-state actors, where the application of conventional rules may be challenging.[8]
5. United Nations Charter– The UN Charter serves as the cornerstone of international law governing the use of force (Jus ad Bellum). While its primary focus lies on the legality of resorting to war, it also incorporates safeguards relevant to the conduct of hostilities. Notably, Article 55(c) of the Charter calls for the respect of human rights and fundamental freedoms during armed conflicts. Furthermore, Article 56 encourages cooperation among states to achieve the objectives outlined in Article 55, which includes upholding human dignity. Although the Charter does not explicitly regulate the conduct of war, its principles of human rights and international cooperation complement and reinforce International Humanitarian Law. This synergy aims to mitigate unnecessary suffering and uphold human dignity even in the face of armed conflict.[9]

PRINCIPLES OF JUS IN BELLO

1. Distinction- The principle of distinction is a fundamental tenet of jus in bello, the law of armed conflict. It mandates that parties to a conflict must clearly differentiate between two categories:

• Combatants: Individuals directly engaged in hostilities, who are legitimate military targets.
• Non-combatants: Civilians and others not participating in the fighting, such as medical personnel, humanitarian workers, and the civilian population. These individuals are entitled to protection from harm.

This principle has several key applications. Firstly, it prohibits attacks directed at civilians or civilian objects, including schools, hospitals, and places of worship. Secondly, it stipulates that only military objectives, such as enemy forces and weapons depots, may be targeted. Civilian infrastructure, such as residential areas, is off-limits unless it is being used for direct military purposes. Finally, combatants have a duty to take all feasible precautions to minimize civilian harm. This includes avoiding operations in densely populated areas whenever possible and employing weapons and tactics that minimize the risk of civilian casualties.

2. Proportionality- This is a core principle of international humanitarian law that aims to prevent excessive harm to civilians and civilian property during military operations. It mandates that any incidental harm caused to civilians or civilian objects must not be excessive in relation to the anticipated military advantage. This requires a careful balancing act. Military planners must constantly evaluate whether the expected military gain justifies the potential harm to civilians. Even when targeting legitimate military objectives, excessive collateral damage is strictly prohibited.

Determining what constitutes “excessive” harm can be subjective and open to interpretation, presenting a significant challenge in applying this principle. Urban warfare, particularly in densely populated areas like Gaza or Mosul, further complicates matters as the risk of civilian casualties is inherently higher.

3. Military Necessity- The principle of military necessity dictates that military actions must be essential to achieving legitimate military objectives and must not violate any other rules of international law. This principle ensures that military operations are conducted for concrete military purposes and prohibits wanton destruction or cruelty. Military necessity primarily focuses on certain aspects: –

• Destruction of Enemy Forces or Resources: Military actions must directly contribute to weakening the enemy’s military capabilities. This includes actions like destroying a bridge used by enemy forces for troop movements or targeting weapons factories and military installations.
• Avoiding Arbitrary Actions: Acts of violence without a legitimate military purpose are strictly forbidden. This includes the destruction of cultural heritage, environmental devastation, and the bombing of civilian homes without military justification.
• Violations: Mass killings, widespread destruction for intimidation or revenge, and any actions primarily intended to cause suffering or terror constitute violations of the principle of military necessity.

Permissible acts include destroying a bridge used by enemy forces or targeting weapons factories. Conversely, bombing civilian homes without military justification or engaging in mass killings or widespread destruction for intimidation or revenge constitute violations of this principle.

4. Humanity (or Unnecessary Suffering)- The principle of humanity in jus in bello prohibits the use of methods or weapons that cause unnecessary suffering or inflict superfluous injury on both combatants and civilians. This includes the prohibition of certain weapons like chemical and biological weapons, blinding laser weapons, anti-personnel mines, and cluster munitions due to their indiscriminate effects. The humane treatment of wounded soldiers and prisoners of war (POWs) is also a fundamental tenet. However, the emergence of new technologies, such as autonomous drones and cyberweapons, presents significant challenges in applying this principle. Historical examples of violations include the use of napalm or white phosphorus against civilian populations and the torture of captured enemy combatants.
5. Neutrality- International law mandates the respect and protection of neutral states and their territories during armed conflicts. Belligerents are prohibited from using neutral territory for military purposes and are obligated to refrain from assisting any warring party. Key obligations for belligerents include avoiding violations of neutral state sovereignty and respecting their airspace, land, and waters. Violations can include using neutral territory to launch military operations or conducting operations that inadvertently spill over into neutral territories.

CONTEMPORARARY CHALLENGES OF JUS IN BELLO

Modern warfare presents unique challenges to the application of jus in bello. Non-state actors like terrorist organizations and insurgent groups, such as ISIS, Hezbollah, and the Taliban, often operate among civilian populations, deliberately blurring the lines between combatants and non-combatants. This makes it difficult to distinguish legitimate targets and poses a significant challenge to the principle of distinction. Urban conflicts increasingly occur in densely populated urban environments like Aleppo, Gaza, and Mosul. The close proximity of civilians to military objectives in these settings significantly increases the risk of disproportionate harm to non-combatants, making it harder to uphold the principles of distinction and proportionality.

The development of autonomous weapons system like drones and lethal autonomous weapons systems (LAWS) raises critical ethical and legal questions. The question arises on whether autonomous systems effectively comply with the principles of distinction and proportionality.

The application of jus in bello to cyberattacks is still an area of active debate. Key questions include whether a cyberattack can constitute an “armed attack” under international law. Additionally, it remains challenging to determine how the principles of proportionality and distinction apply in the digital realm, particularly when cyberattacks target civilian infrastructure like hospitals or power grids. Enforcing compliance with jus in bello remains a significant challenge. While the International Criminal Court (ICC) prosecutes war crimes, its jurisdiction is limited, and many states have not ratified the Rome Statute, hindering its ability to effectively address violations.

CONCLUSION

The concepts of Jus ad Bellum and Jus in Bello constitute the cornerstone of international law governing the use of force. These principles seek to reconcile the realities of armed conflict with the fundamental imperative to protect human dignity and minimize suffering. Jus ad Bellum addresses the legality of resorting to force, while Jus in Bello focuses on regulating the conduct of parties during warfare.

Jus ad Bellum demands adherence to specific principles, including just cause, legitimate authority, right intention, last resort, proportionality, and reasonable prospects of success. These principles are enshrined in the UN Charter and other international instruments, emphasizing the importance of peaceful dispute resolution and prohibiting aggression. However, limited exceptions are recognized, such as self-defence and Security Council-authorized interventions.

Jus in Bello governs the conduct of hostilities, regardless of the conflict’s legality under Jus ad Bellum. Rooted in the Geneva Conventions, Hague Conventions, and customary international law, it is guided by principles such as distinction, proportionality, military necessity, humanity, precaution, and accountability. These principles aim to protect civilians, prisoners of war, the wounded, and other non-combatants while ensuring that combatants adhere to humane standards.

The legal foundations of Jus in Bello and Jus ad Bellum reflect the evolution of international humanitarian law and international criminal law. Mechanisms like the ICC aim to hold violators accountable and deter future atrocities. However, contemporary challenges, such as the increasing complexity of conflicts involving non-state actors, urban warfare, and technological advancements, strain the application and enforcement of these principles. Violations such as indiscriminate attacks, the use of prohibited weapons, and the targeting of civilians highlight the ongoing need for robust accountability mechanisms and international cooperation. To address these challenges, the international community must strengthen compliance, adapt existing frameworks, and uphold the spirit of humanity that lies at the heart of these legal doctrines.

In conclusion, the principles of Jus ad Bellum and Jus in Bello remain crucial for a rules-based international order, promoting peace, and mitigating the horrors of war. Only through collective effort and adherence to these principles can the dual goals of justice and peace in the context of war be realized.

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[1] https://iep.utm.edu/justwar/.

[2] https://www.un.org/en/about-us/un-charter/full-text.

[3] https://www.dlpforum.org/2023/04/15/lawfully-exercising-the-right-to-self-defence-under-article-51-of-the-un-charter-to-recover-occupied-territory/.

[4] https://www.un.org/en/about-us/un-charter/chapter-7.

[5] https://www.icrc.org/en/law-and-policy/geneva-conventions-and-their-commentaries.

[6] https://www.icrc.org/en/law-and-policy/geneva-conventions-and-their-commentaries.

[7] https://casebook.icrc.org/a_to_z/glossary/hague-conventions.

[8] https://www.corteidh.or.cr/tablas/R22753.pdf.

[9] https://www.un.org/en/about-us/un-charter/full-text.