Jus in Bello or the Doctrine of Just War - Essay Example

?JUS IN BELLO Introduction Jus in bello or the docrine of just- war has originated from ‘Christian Realism’, the cornerstone of morals and ethics. The jus in bello supports the rational justifications of waging a war if some wrong deed is done on a rival’s part. Thus, jus in bello awards permission to kill, against an aggressive nation, but only in a humane way by regulating the strategies and procedures of warfare (Kegley and Blanton, 2010, p. 360). When conducted with proportionate force along with justified causes, it definitely contributes in lessening the tolls. It differs from jus ad bellum in the sense that while the former refers to regulations and decrees issued during a war, the latter deals with legal justification and legitimate reasons for commencing a war (Orend, n.d. p. 105). This paper examines the principles of proportionality and discrimination and their present practices with respect to principles of jus in bello. Jus in bello According to war theorists, ‘jus in bello’ refers to the rights and regulations that are followed after commencement of a war. It is a Latin term, which for a large part also evaluates and justifies a nation’s reasons for entering into warfare. At the same time, it also justifies whether the war is conducted on a just manner or not. Under any circumstance, nations are not allowed to adopt perverse means to meet their objectives. Due to this reason, jus in bello is often referred to be an ethical parameter. Thus, principles of jus in bello function with the sole objective of maintaining a coherence between the means and outcome of an armed conflict. Added to these, jus in bello performs another important function. Its principle task is to limit warfare. This is a measure to control the ever- escalating destruction and cost of war (Henderson, 2009, pp. 3-4). Principle of proportionality: jus in bello The term ‘proportionality’ refers to adoption of methods which will not only be proportional to the ends of the war, but will also help in achieving just goals. From a narrower perspective, war theorists define ‘proportionality’ as the method that is adopted by combatants for fulfilling their respective goals, without inducing mass- massacre of enemy troops. Proportionality has often become a controversial issue for it often justifies violence to a certain degree. Though the principles of proportionality are pitted against general sense of humanity, it ensures that basic respect is paid for lives and privacy. Thus, the principle of proportionality demands the war commanders not to chase unattainable objectives or which were relatively unimportant by paying with lives of their own military troops. This brings the principles of proportionality in line with the codes of jus in bello (Shapcott, 2013 ). Though not itself the key consideration, the principles of proportionality hugely influences one of the key concepts- humanness, and is directed towards ensuring basic human rights. Proportionality imposes severe limitations on activities of States, especially when it adopts extreme means to save few soldiers by claiming more lives. It aims at saving more lives compared to those risked at war. This makes it a ‘consequentialist concern’. Three chief principles of proportionality are- firstly, when any aspect or objective has provisions for both good and bad, the ‘good’ must be chosen. Secondly, the effectiveness of good must be taken into consideration. Lastly, in case they are unequal, effectiveness becomes the decisive factor (May, 2008, pp. 117- 120). Principle of discrimination Civilian immunity is central to principles of discrimination which insist that when at war, discrimination must be practiced between the combatants and the ones who are not. Irrespective of war objectives, under no circumstances the military is supposed to make the civilian population a permissible target. The principles also incorporate certain chivalric codes of conduct and customary practices, in respect to the material characteristics of armed combat. The immunity thesis and moral obligations support discrimination in the sense that neither of these supports abandonment of aggressive behavior. This is regarded as one of the fundamental ethics of warfare, for attacks on civilians would result in total war (Shapcott, 2013). Jus in bello and international law of armed conflict According to traditional understanding of jus in bello, ‘necessity’ concept could be categorized into- legislative policy and legislated norm. Jus in bello involves mutual counterbalancing of recognition of human rights and necessity by taking Martens Clause into consideration (Duff, et. al, 2013). This clause supports the humanitarian laws by insisting when a situation is left out from international agreement, then under similar situations, the combatants and civilians of that respective nation come automatically under the protection of international laws. The legislated norms view necessity as ‘treaty provision’. Thus, for specific situations, jus in bello exists in form of specific necessity clause. Article 25 of International Law Commission regards jus in bello as law designed for emergency situations when nations are at war. For this reason, it rules out the aspect of State responsibility when it comes to maintenance of necessity laws. This in turn implies that cases of breaching of jus in bello principles will not be intervened by general international law (Desierto, 2012, pp. 326- 328). However, the Human Rights Committee has consented on breaching of international obligations for temporary period for just ‘legal excuse’. This applies on all forms of regulations and rights including “public emergency, legality, proportionality, non- discrimination, communication and information” (Desierto, 2012, p. 268). The International Court of Justice which is the judicial regulatory body of 192 states looks after disputable maters on international level. The World Court is also responsible for provide compulsory jurisdiction regarding jurisdiction of jus in bello and jus ad bellum. Potent legal controls in matters of warfare have no doubt reduced the horrors of civilian casualties in recent wars. (Kegley and Blanton, 2010, pp. 367- 369) However, in present times, the principle of discrimination has become a debatable issue. Whereas the principle of proportionality tends to be elastic, the principles of discrimination remain rigid, that is it remains unaffected in spite of the necessity of meeting war- objectives. It hugely depends on the state of art and nature of conducting warfare. However, the fact that reciprocal adherence is beneficial for both groups engaged in warfare, has turned the principles of discrimination into a mere convention. Jus in bello remains as the basis of principles of discrimination. But keeping in mind the contemporary war scenario, it appears that neither the ‘just-war’ jus in bello concept neither principles of discrimination is able to reconcile the strategic counter value related to international politics and nuclear warfare. This is primarily it is moral permissibility of self- defense that makes application of absolute principles of discrimination a little tougher. Thus, the jus in bello doctrine is exempted by contemporary war- judgments on some occasions (Contemporary moral problems: war, terrorism, and torture, 2008, pp. 28- 31). During the nineteenth century, armed conflicts and warfare had undocumented traditions. The Fourth Hague Convention (1907) and Geneva Conventions of 1929 and 1949, were the first attempts in modern era to specify the discourse of jus in bello, by especially referring to proportionality and discrimination principles (Coppieters and Fotion, 2002, p. 125). Other principles that are invariably related with discrimination are principles of noncombatant immunity, retaliation, retorsion and reprisals. The international law council intervenes whenever there is aggressive warfare, but does not take any measure to prevent a defensive war, thereby supporting principles of discrimination. War is regarded as the ultimate measure, which could be undertaken against aggressors. This too, abides discrimination by maintaining legal framework of global politics and systems. (Kegley and Blanton, 2010, pp. 367- 368) In present times, riskless warfare has become order of the day in as far as combatant immunity and associative liabilities are concerned. This has resulted in replacement of jus in bello with asymmetry of de facto in bello. Reduction of threat liability is one of the chief characteristics of this principle, both for moral policing as well as for the stronger party in a riskless war. Due to absence of proper and relevant preconditions of policing, often the situations do not follow legitimate courses. This makes the assumptions of jus in bello, coherent in terms and actions and makes justification of warfare exposed to the challenges posed by paradox of riskless war. Nuclear weapons of mass destruction are another prime concern of today’s world. It is not possible to use nuclear weapons in a selective way, discriminating specific groups of people. Though the International Court of Justice has declared their stand against use of such weapons, a paradox still remains (Lee, 2012, p. 224- 226). Proportionality principles, at present, hugely function within IHL and maintain a balance between achievement of military goals and costs of warfare. It thus, contributes to collective security system of a nation from international threats (Gardam, 2004, pp. 2-3). Conclusion In practice, there are several provisions under which violation of jus in bello principles are permissible. Though the just- war policies support justification of war under legal grounds, it does not support waging a war just for the sake of wrongs done. Both the principles of proportionality and the principles of discrimination do not support making the noncombatant civilians targets of military attack. They also do not permit total destruction of opponent’s society. However, in present times, the principles of jus in bello could not be followed- changing war strategies as well as technological advancement and development of war weapons are to be blamed. References Contemporary moral problems: war, terrorism, and torture (2008), US: Cengage Learning Coppieters, B., and Fotion, N., (2002), Principles and Cases, US: Lexington Books Desierto, D. A., (2012), Necessity and National Emergency Clauses: Sovereignty in Modern Treaty Interpretation, US: Martinus Nijhoff Publishers Duff, R.A. et. al (2013), The Constitution of the Criminal Law, UK: Oxford University Press Gardam, J., (2004), Necessity, Proportionality and the Use of Force by States, England: Cambridge University Press Henderson, I., (2009), The contemporary law of targeting, US: Martinus Nijhoff Publishers Kegley, C. K., and Blanton, S. L., (2010), World Politics: Trends and Transformation, US: Cengage Learning Lee, S. P., (2012), Ethics and War: An Introduction, England: Cambridge University Press May, L., (2008), Aggression and Crimes Against Peace. England: Cambridge University Press Orend, B., (n.d.). The Morality of War. US: Broadview Press Shapcott, R., (2013). International Ethics: A Critical Introduction. US: Wiley Read More