Overlap and Convergence: The Interaction Between Jus ad Bellum and Jus in Bello

Abstract

The legal regime governing rights and duties of the aggressor state has been extensively debated since Grotius, and has acquired particular importance after the international community outlawed the recourse to force. Although it is often assumed that the legality of war is irrelevant for the regulation of rights during the armed conflict, state practice, jurisprudence and doctrine have consistently developed the thesis that if the prohibition of the use of force is to be meaningful, the aggressor state shall not be able to claim rights and benefits potentially arising from its commission of the act of aggression. This contribution analyses the conceptual foundations of this argument and its standing within the legal framework. After this, the feasibility of the determination of the aggressor in international conflicts is addressed. At the final stage, this contribution addresses some specific dimensions of aggressor discrimination, in terms of the law of occupation, law of neutrality and the potential response by national courts, notably by reference to public policy and the act of state doctrine.