Academic journal article Case Western Reserve Journal of International Law

The Fission and Fusion in International Use of Force: Relating Unlawful Use of Force and the War Crime of Disproportionate Force Not Justified by Military Necessity

Academic journal article Case Western Reserve Journal of International Law

The Fission and Fusion in International Use of Force: Relating Unlawful Use of Force and the War Crime of Disproportionate Force Not Justified by Military Necessity

Article excerpt

Jus ad bellum and jus in bello are not disparate in operation. There are several points of intersection in the two concepts, commencing with the context in which they apply, and further, in their interpretation of the general principles of proportionality and necessity. Although proportionality connotes divergent theoretical notions depending on the backdrop against which it is set, in practice, these notions are often fused together. However, points of fission (divergence) still persist. The best example of which is in the context of 'The Crime of Disproportionate Use of Force' where the difference between the two notions of 'proportionality' can be described as the limitations on the overall force used to respond to an armed attack under jus ad bellum as opposed to the balance between the anticipated military advantage weighed against the resulting loss of civilian life under jus in bello. The authors argue that there is need for fusion (convergence) between jus ad bellum and jus in bello particularly in relation to modern war crimes trials in order to ensure that both principles have practical significance. This would ensure further convergence between jus in bello and jus ad bellum. To fulfill the shielding purpose of law in the context of armed conflict, more fusion between these two concepts must be embraced in all fora, including, conceptualization of crime of aggression and distinguishing between combatants and civilians.

CONTENTS

I. INTRODUCTION
     A. Unlawful Use of Force: Assessing Jus Ad Bellum
        1. Introduction
        2. Unlawful use of force in jus ad bellum: The Case of
            Disproportionate Use of Force
        3. Unlawful use of force in jus in bello: The Case of
            Disproportionate Use of Force
        4. Conclusion
     B. Points of Fusion: Proportionality Under jus in bello
         and jus ad bellum
        1. Introduction
        2. The Fission: The Crime of Disproportionate Use of
            Force Not Justified By Military Necessity
     C. Constructing a Fusion: The Crime of Disproportionate
         Use of Force not justified by Military Necessity
        1. Conceptualizing the Crime of Aggression
        2. Unlawful Use of Force as a War Crime
        3. Constructing a Fusion: Jus ad Bellum and Jus in Bello in
            relation to Combatants and Civilians
        4. Distinguishing Combatants from Non-Combatants
        5. Combatants' in bello and ad bellum responsibility
II. CONCLUSION

I. INTRODUCTION

The cardinal principle governing jus in bello demands a distinction between combatants and civilians and authorizes the attack of the former. In essence, loss of civilian life is prohibited unless it occurs within the context of the principles of necessity and proportionality. In contrast, the cardinal principle governing jus ad bellum is that States are not allowed to use force unless done in individual or collective self-defense. Based on the foregoing, then, two questions arise. First, can the use of force in wars of aggression be prosecuted as the war crime of disproportionate force not justified by military necessity? Second, do the principles of proportionality and necessity play an extended role where jus ad bellum has been observed, hence creating a wider justification to an eventuality of loss of civilian life or negating lawful use of force to unlawful use not justified by any military necessity?

Prior to the development of modern international law and the advent of the League of Nations and the United Nations, the legal rules that governed the use of force by nations were derived solely from the norms of customary international law. These were norms that would arise from the convergence of general and consistent State practice and opinio juris. (1) Early attempts at developing a concrete and binding legal statement on the prohibition of the use of armed force through multilateral treaties such as the Covenant of the League of Nations, (2) and the Kellogg-Briand Pact (3) proved ineffective and were ultimately replaced by the United Nations Charter. …

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