“Jus Ad Bellum,” “Jus in Bello,” “Jus Post Bellum?” Rethinking the Conception of the Law of Armed Force

Abstract

Since Grotius' De Jure Belli ac Pacis, architecture of international legal system has been founded upon a distinction between states of and At beginning of 20th century, it was taken for granted that the recognizes a state of and a state of war, but that it knows nothing of an intermediate state which is neither one thing nor other. (1) Today, this claim stands to be revisited. There are strong indications that contemporary architecture of international is growing out of bipolar peace and distinction and developing into a tridimensional system, covering phases of conflict, peacetime relations and transition from to International practice has dealt with multiple situations which are neither wars in conventional sense, nor part of peacetime relations, such as threats to caused by repressive state policies. Moreover, international comes into play in processes of transition from one stage to other, namely in transitions from peace to or in transitions from to This transformation is not reflected in contemporary conception of of armed force. This body of continues to be based on a dualist conception of armed force which distinguishes of recourse to force (jus ad bellum) from governing conduct of hostilities (jus in bello). This dualist conception of of armed force appears to carry an idea of exclusiveness that is increasingly anachronistic. It fails to reflect growing interrelation between armed violence and restoration of and growing impact of international on restoration of after conflict. Developments in modern peacemaking suggest, in fact, emergence of a third body of norms that complement traditional dualist concept and which can be referred to as law alter conflict or jus post bellum.'' (2) The idea of a tripartite conception of of armed force is not entirely new. Calls for an expanded conception of armed force were already made by proponents of war doctrine. Francisco Suarez, for example, argued in favor of extending just categories to a third period, namely ending of justly declared and fought wars. (3) This thinking was later developed by Immanuel Kant, who introduced notion of after war (Recht nach dem Krieg) in his philosophy of (Science of Right), which formed part of his Metaphysics of Morals. Kant expressly divided of nations in relation to state of war into three different categories, namely I, right of going to war; 2. right during war; and 3. right after war, object of which is to constrain nations mutually to pass from this state of and to found a common constitution establishing perpetual peace. (4) This idea deserves new consideration in a contemporary setting. In current practice, restoration of and justice in (post-) phase is often a corollary, if not other side of intervention. Some interventions appear to require subsequent (post-) engagement, in order to be recognized as valid or acceptable. It is therefore logical to argue that considerations of (post-) should form part of architecture of of armed force. Developments in different branches of law, such as of occupation, of state responsibility, of treaties, international criminal law, and legal practice in context of settlements point towards development of a set of organizing rules and principles (5) of postconflict peace, which remove peacemaking from its historical realist context and place it within a tradition of positing communitarian interests through a normative conception of and justice. …