A DETAILED STUDY & UNDERSTANDING OF THE CONCEPTS OF JUS AD BELLUM AND JUS IN BELLO

INTRODUCTION

 As per the ICRC i.e. the 'International Committee of Red Cross', the guardian and promoter of 'International Humanitarian Law', often simply referred to as IHL; it is defined as a set of rules which seeks to limit the effects of international and non-international armed conflicts by laying down the guidelines which are to be followed by the states involved in the same. The main aim of IHL is to ensure the protection of the rights of individuals such as 'the wounded and the sick' , 'the prisoners of war (PoWs)' , 'the combatants and non-combatants' mainly. It is to be understood that each of these categories are quite broad and carries with it a significant wide ambit of coverage which are to be further acknowledged in a separate article.

Now, the two branches of IHL are "jus ad bellum" and "jus in bello". Their sources serve to be the 'international customary laws', 'the international treaty laws', 'the Law of Hague' and 'the Law of Geneva'. These sources have further went through rigorous developments, evolving from different kinds of age old traditional practices that have been in effect since time immemorial, stand-out codes, clauses and conventions which have been promulgated from time to time such as those of 'the Lieber Code', 'the Martens Clause', 'the Geneva Conventions' and 'the Hague Conventions', to name a few major ones. All these in unison have led to establishment of four defining principles which have become the backbone of IHL, they are;- "the principle of distinction" , "the principle of proportionality" , "the principle to not cause unnecessary sufferings" and "the principle of military necessity". Before we delve deeper into our topic of discussion, we must acknowledge the aspect that both "jus ad bellum" and "jus in bello" are the foundations from which the entire structure and mechanism of IHL originates.

WHAT IS JUS AD BELLUM & JUS IN BELLO?

"Jus ad bellum" describes the law governing the resort to force whereas "jus in bello" refers to the law governing the conduct of hostilities.

At first, we will elaborate on the concept of "jus ad bellum". To go by its literal meaning, it means "just war" i.e. the law relating to the right to wage war and the use of force. It determines whether to resort to force is lawful or unlawful and sets out the circumstances under which the use of military force qualifies to be legal and justified. The principles central to jus ad bellum are proportionality, last resort, right intention, reasonable hope and legitimate authority. 

The concept of "legitimate authority" is rooted to "popular consent". It states that even though the cause of war is just, individuals or groups lacking societal sanction cannot be justified to initiate war. "Right intention" forbids acts of vengeance and indiscriminate violence. The principle of "proportionality " specifies that the violence caused during war must be proportionate to the attacks suffered, the states are prohibited from using force that is not necessarily required to attain military objectives. The principle of "reasonability" necessitates on the aspect that for a just war, there must be reasonable chances of success. Lastly, the principle of "last resort" emphasises that all non-violent options are to be exhausted before the use of force and a just war is said to be rightly waged only after all the diplomatic means that are readily available to one state has been used up. 

The concept of jus ad bellum started getting recognition from the onset of the 20th century after the World War I when the international community made an attempt to prosecute individuals for the crimes against peace through the Articles 228-230 of the Treaty of Versailles. It mentioned the prosecution of the German combatants for violation of the law and customs of war. Later, Article 2(4) of the UN Charter too, has the mention of the fact that all states are to refrain from the use of force against the territorial integrity and political independence of any other state and forbids any other such acts as well which is inconsistent with the purpose of the United Nations. However, it is very important to note that although Article 2(4) prohibits the use of military force, the UN Charter does exhibit two exceptional situations where the UN authorises the use of military force; they are firstly when there is a threat to peace, breach of peace or an act of aggression is in existence and secondly, when the use of force is in the form of self-defence which in turn finds its mention in Article 51 of the UN Charter as any state's inherent right of individual or collective self-defence. 

Shifting our focus to "jus in bello", quite often referred to as the 'law of armed conflicts', it serves as the guidelines for fighting a war once it has commenced and is in its full-fledged state. It puts restraints on the means and methods of warfare. It holds the soldiers engaged in war accountable and responsible for their illegal actions. Soldiers commit war crimes when they attack non-combatants and pursue their enemy beyond reasonability. It stresses on the fact that every individual regardless of his rank or governmental status, is personally responsible for any war crime that he commits and under certain circumstances, the military or civilian superior could also be held liable/accountable for a crime committed by his subordinate.

The Preamble of the 1977 Additional Protocol 1 explicitly spells out that both the aspects of "jus ad bellum" and "jus in bello". "Jus ad bellum" specifies that IHL rules are to be respected by all parties to the conflict irrespective of the fact who is right or wrong; and on the other hand "jus in bello" principles apply equally to all combatants irrespective of the belligerent's rationale for resorting to force.

SOURCES

1) INTERNATIONAL CUSTOMARY LAW (ICL)  & INTERNATIONAL TREATY LAWS (ITL) -

 International Customary Law or ICL is not restrictive in their application and does not require any express act of ratification or acceptance by states. It binds all belligerents on both sides of the conflict and is relevant in cases of armed conflicts where a state is not party to international treaties thus supplementing the grey areas of international treaties. It serves as a common rule applicable to all coalition partners when individuals in that partnership may be bound by obligations under their respective treaties; for instance coalition partners who were involved in Afghanistan in spite of being bound by certain specific treaties individually which might not be having any sort of overlapping or common grounds thus creating a commotion of divergent rules to be followed, ICL steps in at that very juncture to serve as a common point of reference to string together all the coalition partners along the same line of objectives and actions. However, the limitation of ICL lays at the fact of these rules not being necessarily laid down in clear accessible format and often are not specific enough. 

The Rome Statute of International Criminal Court (ICC) 1998 adopted at the diplomatic conference in Rome is one of the most noble example of the manifestation of customary rules of IHL.

In the case of Prosecutor v/s Hadzihasanovic & Kubura, the prohibition of plunder of public or private properties, attacks against cultural properties, wanton destruction of cities were derived from the customary norms whose violations entail individual criminal responsibility under the customary rules of IHL.

International Treaty Law or ITL on the other hand serves as the primary source of international law. Compared to ICL, it is seen as a relatively simpler, straightforward and a rather quick way of crystallising existing international rules. However, it is laden with certain limitations too which mainly comes in the form of ITL been not universally ratified and most often than not the pre-requisite of the characterisation of an armed conflict to determine which treaty applies turns out to be a considerable hindrance in a swifter and easier application and execution of the same. 

2) LAW OF HAGUE & LAW OF GENEVA -

Law of Hague derives its origin from the Hague Peace Conference of 1899 and 1907. Both of these conferences give the "Law of Hague" its guiding principles. It talks about the rules which are to be followed during warfare governing all those individuals who are taking part in any military operations. It is based on the principle of reciprocity.

Law of Geneva on the other hand originates from the first Geneva Convention of 1864 and the subsequent one in the year 1949 along with its three "Additional Protocols" (APs) out of which two were in 1977 and the final one in 2005 which altogether has established the two guiding principles of "Law of Geneva" which are the principles of "protecting power" and "respect". The rules emanating out of "Law of Geneva" governs the 'victims of war'.

DEVELOPMENT & EVOLUTION

1) OLD TRADITIONAL PRACTICES -

Various kinds of traditional practices from multitudes of different backgrounds and cultures with their own beliefs and applications have come together to shape IHL. From the Indian perspective, practices such as not to attack sleeping oppositions or surrendering opponents, not to use poisonous weapons; then the Chinese practices to not destroy state properties and only to attack cities as the last resort - have found their vivid mention in various parts of IHL from time to time. The Islamic practices of not to attack the women, the children, the old people, the weak and the disabled are the very fundamentals in today's contemporary IHL which specially tags them as "protected people" and intends at their protection and safety as the primary concern. The Greek outlooks on war is based on the 'war beliefs and practices' which were propagated by the legendary "Alexander, the Great" who first acknowledged the need to respect the life and dignity of war victims, impressed upon the necessity that each and everyone partaking in a war should have equal rights, prohibited immoral acts such as molestation of graves, destruction of places of worship, embassies, killing priests, cutting off enemy water supply etc. All these were held to be against the human conscience. Lastly, the Roman approach acknowledged the rights of the PoWs.

Many dark practices too such as mutilation of corpses, exterminating PoWs rather than subjugating them, making their sacrifices to God, showing no mercy to children, women or the sick- all of these heinous acts which stood against the basic tenets of humanity and succeeded in going unchecked for long have been condemned with time and at present stands completely prohibited.

2) LIEBER CODE & MARTENS CLAUSE-

The 'Lieber Code' serves as the most significant theoretical document or contribution to the modern law of war. It was formulated by a Columbia University professor named Francis Lieber in 1863 upon the request of the then US President Abraham Lincoln to set out some guiding principles to govern the armies of the US in the Civil War. Subsequently, from here on, it served as the source of  inspiration for the Laws of Hague & Geneva. 

The aspects which were acknowledged by the 'Lieber Code' were:

a)All soldiers were to be treated equally irrespective of ethnicity, social or economic background.

b)Rights of PoWs were conferred.

c)A vivid distinction must be there between combatants and non-combatants with the latter having the availability of protection from conflicts as a must.

d)Identification of the general legal principle of military necessity when all other options have been exhausted.

The 'Martens Clause' has its origin from the declaration read out by a Russian delegate named Von Martens at the Hague Peace Conference of 1899. Initially, it was structured around the concept of civilians taking up arms when faced with an occupying force i.e. resistance movements in occupied territories. It also recognised the importance of customary norms in the regulation of armed conflicts. It impressed upon the principles of public conscience and humanity. It also clarified on the aspect that if any interpretation of a treaty does not explicitly prohibit something, it does not ipso facto qualify to be permitted.

3) THE GENEVA & HAGUE CONVENTIONS-

The Geneva Convention of 1864 was based on the principles of universality and tolerance among all irrespective of religion, race or nationality. It consisted of 10 articles and set the foundations of modern IHL.

Following the horrors of the Battle of Solferino, Henry Dunant wanted the states to formulate a principle sanctioned by a Convention that would be inviolate in character to provide legal protection  to the wounded in the field primarily. His proposal saw the constitution of a small committee in Geneva which subsequently went into become the ICRC and it was upon this committee's request to the Swiss Government to convene a diplomatic conference in 1863 that in 1864 the "Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in Field" came into existence. This convention made the rule that in Christian countries, the distinguishing mark of military medical personnel would be that of a "Red Cross' on a white field emblem and the same logo would change into or take the form of a "Red Crescent" on a white field emblem in Islamic countries.

The Hague Convention of 1899 related to the laws and customs of war on land. In total, it consisted of 4 sections, the other three being on the specific settlement of dispute, the adaptation of maritime warfare of principles of Geneva Convention of 1864, and the prohibition of launching of projectiles and explosives from balloons. There were three additional declarations pertaining to the prohibition on the use of bullets which expand or flatten easily in the human body, prohibition on the use of projectiles which contain objects of diffusion of asphyxiating or deleterious gases and the prohibition on the launching of projectiles and explosives from balloons.

The Hague Convention (IX) of 1907 further expanded and modified the original Hague Convention on naval warfare. It consisted of 13 sections of which 12 of them were ratified. Some of the major sections were in relation to the conversion of merchant ships to naval ships, pacific settlement of disputes, guidelines on bombardment by naval forces, limitation of employment of force for recovery of contract debts, laying of automatic submarine contact mines, rights and duties of neutral powers in naval war.

THE ESTABLISHED PRINCIPLES OF IHL

The concepts of jus ad bellum and jus in bello, emanating out of its various sources like the ICL, ITL, the Lieber Code, the Martens Clause, the laws of Geneva & Hague. the conventions which protruded out of it - all these in unison paved way for the four established principles of IHL which are the principle of distinction, the principle of proportionality, the principle to not cause unnecessary sufferings and the principle of military necessity.

Principle of distinction says that a distinction must be made in between combatants and non-combatants i.e. mostly and predominantly civilians. A clear distinction must also be made in between the civilian object and military object.

Civilian objects are seen to be as hospitals, safety zones, demilitarised zones, neutralised zones, cultural property, objects indispensable for the survival of civil population etc. i.e. any tangible or intangible objects which by virtue of its nature, location or use is not within the jurisdiction of any military advantage and hence does not serve as an attack point to be included in a war.

Military objects on the other hand are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military objective. Tangible objects like designated places where uniform arms are kept, strategic border locations i.e. objects free from any sort of civilian presence constitute military objects.

Principle of proportionality refers to the process of weighing the anticipated gains of a military operation against reasonably foreseeable consequences to the civilian population. Articles 51(5)(b) & 57 of AP1 has the mention of this principle where in it is stated that the incidental loss of civilian life must not be excessive in relation to the concrete and direct military advantages anticipated.

Principle to not cause unnecessary suffering points towards the aspect of not causing suffering beyond military necessity using poisoned, chemical laden, biological and laser weapons. There must not be any superfluous injury. It also acknowledges the need to avoid widespread, long term and severe damage to the environment. The usage of torpedoes, cluster munitions, biological & chemical weapons etc., all of these come under the head of "prohibited means of warfare".

Principle of military necessity is dependent on the successful implementation of the principles of proportionality and unnecessary suffering. So long these two principles are satisfied in the use of force by the engaged military forces to accomplish the mission, it is in conformity with IHL. 

It is very important to recognise the theoretical ground on which IHL is founded i.e. the use of force is inherent to waging war because the ultimate aim of military operations is to prevail over the enemy's armed forces and that gets satisfied as soon as one of the engaged forces overpowers or becomes numerically superior than the other, thereby from there on anything beyond it such as starving of civilians, pillage, plunder, looting, torture which serves no military objective except the psychological satisfaction of demeaning and lowering the status of the overpowered state and its masses are nothing but sheer violation of the principles of humanity and human conscience. All these acts come under the realm of "prohibited methods of warfare".

                                                                                          

                                                                                                        ~   Akash Dey Bhowmick