Jus In Bello Research Articles

Criminology against war

Following the armed conflict in the former Yugoslavia, a new criminology of war developed, producing fresh insights and opening up original research streams. The incorporation of war within the remit of criminological analysis, advocated by classical as well as critical criminology, rapidly gained new momentum. The focus on asymmetrical conflicts and invasions unveiled the massive killing of civilians, bringing war into the arena of victimology. Moreover, the examination of the material forces that drive international conflicts situated such conflicts among the violent predatory offences that concern most criminological theories. The study of ‘war crimes’, ultimately, led some authors to shift attention towards ‘war as crime’. After briefly summarising the developments that shaped a criminology of war, this paper attempts further analytical steps towards the formulation of a criminology against war. A critique of the concept of ‘just wars’ is followed by the examination of the ambiguities that cloud the notions of jus ad bellum and jus in bello. Current legal provisions regulating international conflict are described as blank norms, while principles of peacebuilding are finally pinpointed.

존 롤즈(J. Rawls)의 전쟁과 핵무기에 대한 이론

This article tries to examine John Rawls’ theories of war and nuclear weapons especially from the perspective of international law. Rawls's theory of war is based on the just war theory of Western tradition. It rejects realism and does not adopt pacifism. Rawls's theory of jus ad bellum is similar to the position of current international law in that it recognizes a war of self-defense and exceptionally a war of humanitarian intervention. HIs theory of jus in bello largely reflects the principles of existing International Humanitarian Law(IHL), such as the distinction between combatants and civilians, protection of human rights, and restrictions on military necessity. However, Rawls deviates from international humanitarian law in that it permits military action against civilians in the case of the so-called supreme emergency. Regarding nuclear weapons, it differs from the existing International Court of Justice (ICJ) theory of nuclear permitting by permitting nuclear weapons only to well-ordered peoples and presenting human rights standards for nuclear use. In addition, by evaluating the Hiroshima-Nagasaki atomic bombings as great wrongs, it presents a precedent in international humanitarian law for the use of nuclear weapons. The official position of the United States regarding the Hiroshima-Nagasaki atomic bombings was that it was a justifiable measure to end the war early. However, Rawls rejects the U.S. government's arguments and says that the atomic bombing was a representative case of the failure of so-called 'statesmanship'. This article attempted to support Rawls's perspective from the perspective of international humanitarian law. The claim that the Hiroshima-Nagasaki atomic bombings were intended to reduce the casualties of U.S. soldiers does not comply with the principle of military necessity under international humanitarian law. Additionally, the claim that it was an inevitable choice to reduce the damage to Japanese civilians that would result from a prolonged war is not valid in that there was room for a third option to end the war. The dropping of the Hiroshima-Nagasaki atomic bombs reflected America's political interest for the victory of unconditional surrender and ending the war before Russia (the former Soviet Union) entered the war. This did not comply with the principles of military necessity or humanitarian necessity of international humanitarian law.

Post War Justice: Jus Post Bellum for Just War and Peace

This paper aims to address a key topic of speculation within political philosophy, namely the Just War Theory. The Just War Theory works to ethically restrain wars based on principles listed out in jus ad bellum (reasons to go to war) and jus in bello (conduct during war). As such, the theory dominated by the debate between the ‘traditionalists’ and ‘revisionists’ who are concerned about the integration of jus post bellum as the third branch of just war theory and feel it is better suited to the domain of international politics and security. This paper explores this lacunae over the neglect of jus post bellum (post war justice) within the just war discourse. By identifying the limitations of a minimalist jus post bellum and this misrepresentation of peace with security, this paper defends a maximalist account of jus post bellum and also situates post war justice as a necessary third branch of the Just War Theory. The challenges to taking such an extensive stance on post war justice are also addressed. As the first two branches of just war theory have been codified, the neglect of the post war stage leads to unrestrained war endings and ad-hoc solutions. Any just war theory needs to recognize the legitimacy of the third branch of post war justice as well, as only then can the Just War Theory function to restrain wars.

Is All Mental Harm Equal? The Importance of Discussing Civilian War Trauma from a Socio-Economic Legal Framework’s Perspective

Abstract In recent years, international law scholars have discussed how civilian mental harm in warfare should also form part of the jus in bello proportionality principle and be balanced to the anticipated military advantage. Yet, these scholars have not proceeded one step further to examine whether socio-economic parameters shaping the individual’s personality, such as education, family ties or the level of income, should be also taken into account as varying variables in this balancing task. This is particularly important given that the particular parameters are tied to the socio-economics rights discourse and the relevant minimal living standards notion developed there. Based on a study we conducted, the article explores whether civilian mental harm should be affected by socio-economic parameters and what this means for the wider role socio-economic rights can play in armed conflicts as well as for the reading of jus in bello along Marxist terms.

How Does the Tallinn Manual 2.0 Shed Light on the Threat of Cyber Attacks against Taiwan?

This paper will identify possible unsettled issues when applying jus ad bellum and jus in bello to case scenarios based on China's cyber operations against Taiwan, pursuant to the rules of international law governing cyber or military operations attributable to States reflected in Tallinn Manual 2.0. This paper will argue that because of Taiwan’s legal international status as a sovereign State, the different responsive actions it may take, should it be faced with any such aggressive cyber or military attack, may be considered controversial. This paper will then identify the possible legal issues that may pertain under current international law, should any such armed conflict occur between China and Taiwan.

Understanding Russia’s Actions in Ukraine as the Crime of Genocide

Abstract The new wave of Russia’s aggression against Ukraine that began on 24 February 2022, and the intensification of the armed conflict accompanied by grave breaches of international humanitarian law, has received significant scholarly attention. Many academic interventions have examined the developments in Ukraine through the frameworks of jus ad bellum and jus in bello. Some, however, have applied a genocide lens to make sense of reported numerous and widespread violations of international humanitarian and human rights law. This article contributes to the latter stream of scholarship by contextualizing the arguments for the existence of genocidal intent behind the seemingly unrelated crimes committed by the armed forces of the Russian Federation all over Ukraine. The authors pay particular attention to the language and pseudo-historical references used by Russia’s leaders as a justification for the invasion of Ukraine and argue that these statements and expressions indicate the existence of genocidal intent. This article also reflects on the issue of the systematic destruction of cultural heritage of Ukraine as further evidence of the intent to destroy the Ukrainian nation understood as a protected national group under the Genocide Convention, at least in part. Finally, the authors analyse the genocidal acts that have apparently been committed, including killings; the causing of serious bodily or mental harm; the forcible transfer of Ukrainian children to Russia, and the deliberate infliction of conditions of life aimed at the physical destruction of the Ukrainian nation. It is stressed that there are reasonable grounds to believe that the destruction of the Ukrainian nation by Russia has been pursued through commission of these prohibited acts. Their nature and large-scale character serve as further evidence of genocidal intent to destroy the Ukrainian nation.

Just preparation for war and AI-enabled weapons.

This paper maintains that the just war tradition provides a useful framework for analyzing ethical issues related to the development of weapons that incorporate artificial intelligence (AI), or "AI-enabled weapons." While development of any weapon carries the risk of violations of jus ad bellum and jus in bello, AI-enabled weapons can pose distinctive risks of these violations. The article argues that developing AI-enabled weapons in accordance with jus ante bellum principles of just preparation for war can help minimize the risk of these violations. These principles impose two obligations. The first is that before deploying an AI-enabled weapon a state must rigorously test its safety and reliability, and conduct review of its ability to comply with international law. Second, a state must develop AI-enabled weapons in ways that minimize the likelihood that a security dilemma will arise, in which other states feel threatened by this development and hasten to deploy such weapons without sufficient testing and review. Ethical development of weapons that incorporate AI therefore requires that a state focus not only on its own activity, but on how that activity is perceived by other states.

Russia's Hybrid Warfare in Ukraine Threatens Both Healthcare & Health Protections Provided by International Law.

Hybrid Warfare is on display because of the unjustified Russian invasion of Ukraine. This is characterized by numerous crimes against civilians as seen vividly during the occupation of the town of Bucha where rape, torture, murder, and looting seem to reflect Russian military policy, leadership, and command guidance. Of particular concern is the threat to hospitals and health care as well as vital life support. Numerous hospitals have been damaged and destroyed. Hospitals are not tactical military targets and targeting health care facilities and personnel ignores traditional jus in bello and ignores numerous conventions established to stabilize the global order. The Russian-proclaimed "special operation" in Ukraine has been characterized by barbarian warfare in which the Russian military uses weapons against the civilian population and civilian infrastructure. The aggressors have embarked on a purposeful terror campaign through infrastructure attacks, which are of little military value except to demoralize the nation's people. This is evident with Russian missile and drone attacks on electric, water, and health care in Ukraine. Warfare now and in the future may be increasingly aimed at demoralizing civilian populations and reducing the will of the people and their government to resist. The Ukrainian invasion clearly shows that this use of hybrid warfare should be met with a strong reaction of the international community at the earliest possible stage, especially the supposedly peace-loving neutral countries, or else the future is expanded unlawful and barbaric military conflict.

Jus Post Bellum and the Decision to Withdraw from Afghanistan

This article makes moral sense of the Western withdrawal from Afghanistan in 2021. It does so by applying classical just war thinking. The classical bellum justum, it argues, can make a distinctive contribution toward evaluating the decision to leave Afghanistan, a decision that continues to be discussed controversially. The article points out that classical just war thinking did not introduce distinct moral categories beyond jus ad bellum, such as jus in bello or jus post bellum. Exactly because classical just war thinking was meant to apply to all phases of a war, the article goes on to argue, it provides important lessons for just war as a tool of statecraft that seeks to inform political decision-making. Applying the wisdom that is encapsulated in the classical bellum justum to the withdrawal decision in Afghanistan, the article, although it is critical of its execution, generally sides with the Biden administration's course of action.

Autonomous Weapons and Just War Theory

As wars today involve the use of sophisticated weapons such as autonomous ones, this paper aims to address the moral permissibility of using autonomous weapons systems (AWS) in wars. In the debate on autonomous weapons, advocates argue based on AWS’s precision of targets (Arkin 2018) and it not being clouded by emotional judgments (Marchant, et.al 2011) and prohibitors who comment on the ethical and legal implications of autonomous weapons (A. Sharkey 2019; Blanchard 2022). However, there has been relatively little development of compliance of the autonomous weapons with all the principles of jus in bello, amongst the scholarship as well as its engagement with the just war framework broadly. To assess the moral compliance of AWS, the paper focuses on just conduct or the jus in bello principles. It closely examines all the three principles of necessity, discrimination, and proportionality that makeup just conduct as well as the legal body of International Humanitarian Law (IHL). Through a close analysis of all the principles of jus in bello against the use of autonomous weapons, this paper will result in the incompatibility of such weapons with the ethical framework of just war theory that gives out the norms for just and fair conduct during wars. It will thereby lead to a further reflection on the compliance of autonomous weapons as per jus in bello and the IHL to have greater restrain and ethical conduct during wars.

Contesting Use of Force Norms Through Technological Practices

International law on the use of force has become increasingly contested. Such contestation also happens in the form of technologically-mediated state practices, for example via designing and using drones or weapon systems integrating autonomous or Artificial Intelligence (AI) technologies. Over time, such practices can deliberatively and tacitly shape new norms. To make sense of such dynamics, the article differentiates between an international normative order and an international legal order and theorises how their congruence/incongruence affects (social and legal) norms governing the use of force. These arguments combine norm research with scholarship across critical international law, practice theories, and science and technology studies to examine the emergence of contested areas in between the international normative and legal orders. The paper examines the practice of targeted killing in the context of jus contra bellum and the emerging norm of ‘meaningful’ human control in jus in bello. These examples demonstrate the emergence of significant areas of contestation in between the international normative and legal orders – and the adverse consequences of this development for the restraining quality of international law.

The Soldier’s Share: Considering Narrow Responsibility for Lethal Autonomous Weapons

ABSTRACT Robert Sparrow (among others) claims that if an autonomous weapon were to commit a war crime, it would cause harm for which no one could reasonably be blamed. Since no one would bear responsibility for the soldier’s share of killing in such cases, he argues that they would necessarily violate the requirements of jus in bello, and should be prohibited by international law. I argue this view is mistaken and that our moral understanding of war is sufficient to determine blame for any wrongful killing done by autonomous weapons. Analyzing moral responsibility for autonomous weapons starts by recognizing that although they are capable of causing moral consequences, they are neither praiseworthy nor blameworthy in the moral sense. As such, their military role is that of a tool, albeit a rather sophisticated one, and responsibility for their use is roughly analogous to that of existing “smart” weapons. There will likely be some difficulty in managing these systems as they become more intelligent and more prone to unpredicted behavior, but the moral notion of shared responsibility and the legal notion of command responsibility are sufficient to locate responsibility for their use.

THE CONDUCT OF WARFARE IN ISLAMIC LAW AND INTERNATIONAL LAW: A COMPARATIVE STUDY

Warfare is just as bad as could be considered, but despite this fact, wars have been fought and shall continue in the future as well. War is an intense armed conflict between states and paramilitary groups characterized by the presence of violence, aggression, and destruction of life and property using military tactics. Even in such circumstances, the Islamic law as well as international law has described some fundamental rules, which shall be followed by the warring parties. This portion of law is known as the jus in bello, while the portion of the legal rules talking about the legitimacy of warfare is known as the jus ad bellum. The conduct of war is differently explained by Islamic law and the International Humanitarian Law. International Humanitarian Law can be defined as the body of laws governing the conduct of states during an armed conflict. The guiding principles of IHL arise from the need of placing limits on the conduct of warfare to diminish its damages. Whereas the Islamic law of war has been derived by the Muslim Jurists through the primary sources, the Holy Qur’an and Prophet Muhammad saw Sunnah. Secondary sources include early Islamic precedents, consensus between the jurists (Ijma), jurists’ rulings through analogy, and public interest (Al-Dawoody, 2017). Keywords: Conduct of Warfare, Jus in Bello, Jus ad Bellum, Islamic Law, International Law

The Law of Neutrality: Jus ad Bellum or Jus in Bello?

Abstract This review essay aims to consider the law of neutrality, and whether it may be better situated within the jus ad bellum, the body of law governing the use of force, or the jus in bello, the body of law governing hostilities following the initial use of force. In doing so, the essay centres on the recent monograph by Constantine Antonopoulos on the subject of the law of neutrality, wherein the author assures us that despite the legal innovations of the last century, the law of neutrality has remained squarely within the modern jus in bello. The present writer takes a somewhat different approach, although appreciates the doctrinal allure of keeping the law of neutrality separate from jus ad bellum considerations, particularly in the context of the ongoing Russian invasion of Ukraine.

Stratagems and the Byzantine culture of war: the theory of military trickery and ethics in Byzantium (c. 900–1204)

Abstract Although there has been significant scholarly attention on just war (jus ad bellum) in Byzantium and an increasing interest in the study of the Byzantine culture of war, military trickery and jus in bello (just conduct of war) remain largely unexplored by Byzantinists. This paper aims to fill this gap by studying the theory of military trickery and ethics in Byzantium, c. 900 -1204. It explores and analyses this aspect of jus in bello in Byzantium by employing methods and concepts from Byzantine history, war studies and military ethics. The paper begins by examining the impact of dominant literary traditions (Classical and Biblical) on Byzantine perceptions of military trickery, and then explores the reception and development of Classical and Biblical notions of military trickery and ethics by different sub-cultures in Byzantium (e. g., theologians, jurists, tacticians, historians, orators, poets). The author then attempts to frame a more complete theory of Byzantine military trickery and ethics, and to reflect on the relationship between jus ad bellum and jus in bello in Byzantium.

Artificial intelligence and responsibility gaps: what is the problem?

Recent decades have witnessed tremendous progress in artificial intelligence and in the development of autonomous systems that rely on artificial intelligence. Critics, however, have pointed to the difficulty of allocating responsibility for the actions of an autonomous system, especially when the autonomous system causes harm or damage. The highly autonomous behavior of such systems, for which neither the programmer, the manufacturer, nor the operator seems to be responsible, has been suspected to generate responsibility gaps. This has been the cause of much concern. In this article, I propose a more optimistic view on artificial intelligence, raising two challenges for responsibility gap pessimists. First, proponents of responsibility gaps must say more about when responsibility gaps occur. Once we accept a difficult-to-reject plausibility constraint on the emergence of such gaps, it becomes apparent that the situations in which responsibility gaps occur are unclear. Second, assuming that responsibility gaps occur, more must be said about why we should be concerned about such gaps in the first place. I proceed by defusing what I take to be the two most important concerns about responsibility gaps, one relating to the consequences of responsibility gaps and the other relating to violations of jus in bello.

A Short Commentary Concerning Russia’s Invasion of Ukraine and the Jus in Bello

Abstract Since 24 February 2022, Russia’s full-scale invasion of Ukraine has entailed large-scale violations of international humanitarian law (ihl), which are being investigated by Ukraine, some of its European allies, and the International Criminal Court (icc) as war crimes. This short commentary provides an overview of selected jus in bello issues raised by the invasion, and highlights implications for the dissemination and implementation of ihl in Russia, Ukraine and beyond in a mid-term perspective.

“Michael Walzer’s Just War Theory and the 1982 Israel War in Lebanon: Theory and Application”

The article draws on Michael Walzer’s just war theory to assess the conduct of the Lebanon War of 1982 (Operation Peace for Galilee) and argues that according to the underpinning principles of Walzer’s theory, it was an unjust war. Sharon’s war plans, codenamed “Grand Oranim,” were designed to relieve the Lebanese Christian militias of their so-called Palestinian burden by driving the refugees into Jordan where they would presumably bring about a regime change and turn Jordan into a Palestinian state. My analysis focuses on the causes of this war, jus ad bellum, whether it was a war of self-defense, and the means that were employed in its conduct, its jus in bello. Likewise explored and analyzed here are the concepts of proportionality and the treatment of non-combatants.

Charting Hinduism's rules of armed conflict: Indian sacred texts and international humanitarian law

AbstractWhat does Hinduism have to say about the rules of armed conflict? How might Hinduism enrich the modern global discourse on international humanitarian law (IHL)? What convergences might be found, and what areas of divergence? This paper examines and contextualizes the rules of armed conflict advocated in classical Hindu texts, especially in the epic Mahābhārata, where important norms of Hinduism are established. It also examines the other major epic, the Rāmāyaṇa, and the Dharmaśāstras (Law Codes), as well as the Arthaśāstra, which takes an alternative (realpolitik) approach. This paper focuses on conduct during armed conflict (jus in bello), now synonymous for many with IHL, rather than considerations leading up to war (jus ad bellum). The paper seeks to illuminate both convergences and divergences with IHL and highlight particular Hindu approaches on the righteous (dharmic) application of violence. Like IHL, classical Hinduism values (1) proportionality of force during armed engagement; (2) the minimization of human suffering during combat; (3) care for survivors of war; (4) immunity towards non-combatants, especially civilians; and (5) balancing military necessity with humanity. With respect to divergences, classical Hinduism extols non-violence in ways that critique even the warrior's duty to engage in righteous war (dharma yuddha). In contrast to IHL, the Hindu epics have some different limitations; for instance, they limit the right to combat to a particular caste, the kṣatriyas, though this concept could be modernized to mean uniformed personnel of the State. The epics also disavow certain practices that are legal under IHL, such as ambushes and surprise attacks against legitimate targets. The Hindu proportionality provision goes beyond IHL by prescribing that only warriors of the same type should fight. With its many deeply ethical considerations, Hinduism enriches modern IHL through its heightened emphasis on fair and humane conduct in battle and its call towards compassion on behalf of both combatants and non-combatants.

THE FINAL FRONTIER OF CYBERSPACE: THE SEABED BEYOND NATIONAL JURISDICTION AND THE PROTECTION OF SUBMARINE CABLES

AbstractCyberspace is now acknowledged not only as the newest domain of warfare, but also as a space vital to economic, educational and cultural development for all States. This thin consensus ignores the fundamental fact that the backbone of cyber infrastructure—submarine telecommunication cables—is not (for the large part) located within sovereign territorial jurisdiction. The radically increased reliance of States upon submarine data cables emphasises their vulnerability to damage by malicious acts, accidents, or natural phenomena. Faced with these problems, legal analysis has tended to identify gaps or deficiencies in the law, and propose the creation of new legal instruments. The contribution of this article is twofold. First, it expands the frame of analysis to include deliberate damage to cables not only in peacetime but under the law of armed conflict. Second, rather than treating the legal framework as inherently deficient, it considers the extent to which existing rules and principles can be progressively developed, interpreted, or creatively applied to close perceived gaps. This article surveys the existing law specific to the protection of submarine cables and assesses how general principles of the law of the sea, State responsibility, the law on the use of force, and the law of armed conflict apply to this problem. It thus considers in turn the applicable ‘law of peace’, the jus ad bellum and the jus in bello.