UNIVERSITY OF NAIROBI

SCHOOL OF LAW

GPR 454: INTERNATIONAL HUMANITARIAN LAW

GROUP ASSIGNMENT

GROUP 4: JUS AD BELLUM AND JUS IN BELLO

COURSE INSTRUCTOR: DR. WYNE MUTUMA

GROUP 4 MEMBERS:

1. LELEI CHERUTO G34/35737/2013

2. MAINA CHRISTINE WAMBUI G34/34586/2013
3. WASONGA EDNA ASESA G34/37808/2013
4. KIRUI MERCY CHELANGAT G34/35764/2013
5. ISOHI CECILIA ACHAILA G34/35013/2013
6. WAMBUI NJEHU G34/35649/2013

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 TABLE OF CONTENTS
JUS AD BELLUM AND JUS IN BELLO
1.JUS AD BELLUM 3
1.1.THE USE OF FORCE UNDER THE UNITED NATIONS CHARTER 6
1.1.1.Use of Force under Article 2 (4) 6
1.1.2.Exceptions to the Prohibition of the Use of Force 8
1.1.2.1.Article 51 9
1.1.2.2.CHAPTER 7 RESOLUTIONS 11
1.1.2.2.1Korea 13
1.1.2.2.2.Iraq- Operation Desert Storm 13
1.1.2.2.3.Libya 14
1.2.JUS AD BELLUM IN PRACTICE 15
1.2.1.WORLD WAR II PERIOD 15
1.2.2.COLD WAR PERIOD 18
1.2.3.POST COLD WAR PERIOD 21
1.3.CHALLENGES TO IMPLEMENTATION 23
2.JUS IN BELLO 24
2.1.History of Jus in Bello 24
2.2.Principles of Jus in Bello 25
2.2.1.The principle of distinction 26
2.2.2. Principle of Precaution 29
2.2.3. Principle of unnecessary suffering 30
2.2.4. Principle of Humane treatment or humanity 31
2.2.5. Principle of military necessity 31
2.2.6. Equal application principle 32
2.3.Main components of Jus in Bello 33
2.4.Implementation of jus in bello 34
2.5.Importance of separation of Jus ad bellum and Jus in bello
4.JUS POST BELLUM 39
3.BIBLIOGRAPHY 43
3.1.Websites 43
3.2.Books 44
3.3.Journals 45
3.4.Command papers 47
3.5.Legislation/conventions 47
3.6.UN resolutions 49

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 3.7.Dictionary entries 49

JUS AD BELLUM

Jus ad bellum refers to the conditions under which states may resort to war or to the use of

armed force in general1. It is concerned with the justification parties have to resort to war.

Once parties have satisfied the criteria laid out by jus ad bellum then they may engage in the

use of force. The reason for having such rules in place is so as to ensure there’s just cause to

go to war hence ensuring ‘just war’.

The Just War theory deals with the justification of how and why wars are fought2. It is the

basis on which nations seek to legally and morally justify going to war. The history of just

war dates as far as the biblical times of relations between the Greeks and the Romans and

therefore has its origin in Christian theology. One of the founders of the just war theory is

St.Augustine, his theory involves 8 core elements: a punitive conception of war, assessment

of the evil of war in terms of the moral evil of attitudes and desires, a search for authorization

for the use of violence, a dualistic epistemology which gives priority to spiritual goods,

interpretation of evangelical norms in terms of inner attitudes, passive attitude to authority

and social change, use of biblical texts to legitimate expectation in war and an analogical

conception of peace3. Thomas Aquinas revised Augustine’s version and came up with 3

criteria for a just war: the war to be waged by a legitimate authority, have a just cause and

1 International Committee of the Red Cross, ‘What are jus ad bellum and jus in bello?’
<https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0 > accessed 9th
November 2016 .
2 International Encyclopedia of Philosophy, ‘Just War Theory’
<http://www.iep.utm.edu/justwar/ > accessed 14 November 2016.
3 John Langan, ‘The Elements of St. Augustine’s Just War Theory’(1984) 12:1 The Journal
of Religious Ethics 19.
3
have the right intentions4. The moral justifications of war are what is expressed in jus ad

bellum.

In the earlier years, any form of aggression was seen as a just cause for war. The international

law in the 18th century left the decision to go to war as a free choice of every state5 hence

allowing states to use war a legitimate political instrument .The only limitation to that

freedom to go to war was the formal procedural rule that war had to be declared6 so as to give

notice to third states. Due to the fact that war became more destructive in the following years,

there was need to put stricter rules to deal with this development of war.

One of the rules that were developed was the Lieber Code in 1863. The code was also

referred to as ‘instructions for the government of Armies of the United States in the Field’.

These instructions prepared by Francis Lieber and signed by the then President of the United

States, Abraham Lincoln were given to the United States Union Forces during American

Civil War and were meant to instruct the soldiers on how they should conduct themselves

during war7. The Lieber instructions were the first attempt to codify the laws of war and

strongly influenced the further codification of the laws of war and the adoption of similar

regulations by other states8.

International law was used through treaties to put limitations on the freedom to resort to

war9. The term jus ad bellum later emanated during the era of the League of Nations through

4 ‘St. Thomas Aquinas discusses the three conditions for a just war’(The Portable Library of
Liberty, 23rd July 2007)
< http://files.libertyfund.org/pll/quotes/130.html > accessed 14 November 2016.
5 Robert Kolb & Richard Hyde, An Introduction to the International Law of Armed Conflicts
(Hart Publishing Oxford 2008).
6 Hague Convention(III) relative to the Opening of Hostilities 1907, Art 1.
7 D.Schindler & J.Toman, The Laws of Armed Conflicts( Martinus Nijhoff Publishers 1988).
8 Instructions for the Government of Armies of the United States in the Field (Lieber Code)
1863.
9 Ibid n2.
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the Covenant of the League of Nations10 which attempted to limit the jus ad bellum of states.

Article 10 of the convention stipulated that “member states are to respect and preserve as

against external aggression, the territorial integrity and existing political independence of all

members of the league. In 1928, the Kellogg-Briand Pact prohibited the use of war as an

instrument of national policy and required disputes to be solved by peaceful means. However

due to its lack of implementation and enforcement mechanisms, it failed at its attempt to

prohibit war.

After the World War II, the Charter of the United Nations11 was adopted. The prohibition on

the use of force by states was outlined in Article 2(4) of the Charter which states that all

members shall refrain in their international relations from the threat or use of force against

the territorial integrity or political independence of any state, or in any other manner

inconsistent with the purposes of the United Nations. Exceptions to this prohibition were

however put in place that is instances when states may resort to war in contradiction to the

prohibition against force. These exceptions are individual or collective self defence under

Article 51 of the Charter and an authorisation by the Security Council as per Article 42.

THE USE OF FORCE UNDER THE UNITED NATIONS CHARTER

Use of Force under Article 2 (4)

From time immemorial, a state’s right to resort to war has always been considered the

sovereign right of every state.12 However, under the current international legal regime, the

prohibition of the use of force or the threat of the use of force between states is expressly
10 Covenant of the League of Nations 1920.
11 Charter of the United Nations 1945.
12 Francois Bugnion, ‘Jus ad Bellum, Jus in Bello and Non International Armed Conflict’
(2004) 6 Yearbook of International Humanitarian Law 167, 169.
5
prohibited.13 Such prohibition is subject to a number of treaties and has even been the subject

of extensive jurisprudence of the International Court of Justice (ICJ). For instance, the

Briand- Kellogg Pact prohibited the use of warfare as a method of dispute resolution. 14 The

Declaration of Principles of International Law concerning the Friendly Relations of States

considers this prohibition as a general principle of international law 15 while the ICJ

considered it both a principle of Customary International Law as well as a jus cogens

norm.16The only accepted exception against this prohibition is found in the principle of the

inherent right to self defence, which is also considered a customary international law

principle.17

The United Nations Charter is the leading authority on the use of force by states. Article 2

(4) of the charter, in keeping with the purposes of the United Nations of promoting

international peace states that,18

‘All members shall refrain in their international relations from the threat or the use of force

against the territorial integrity or political independence of any state, or in any other manner

inconsistent with the purposes of the United Nations’

This express prohibition against the use of force in the words of article 2 (4) has been the

subject of many controversial interpretations. So what exactly is the scope of this article?

There is first and foremost a prohibition against both direct and indirect use of force. Direct

use of force is where a state actively engages its military force against another state, while

13 United Nations Charter, Article 2 (4).

14General Treaty for Renunciation of War as an Instrument of National Policy (Briand –
Kellogg Pact) 1928, Article 1.
15 United Nations General Assembly Resolution 2625 (1970) GAOR 25th Session.
16 Military and Paramilitary activities in and against Nicaragua (Nicaragua v U.S.A.)
(Merits) [1986] ICJ Rep 14.
17Ibid.
18United Nations Charter, Article 1.
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indirect use of force involves active military or other assistance to a state that is engaged in

direct aggression against another state.19 For instance in the case of Nicaragua v USA before

the ICJ, the court found that the arming and training of the contras by the United States

government for purposes of waging war against the Nicaraguan government amounted to the

indirect use of force by the United States.20

Secondly, is the prohibition of both the threat of the use of force as well as the actual use of

force. In the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, the ICJ

defined a threat to use force as the ‘signalled intention to use force based on the

circumstances’.21 The threat can also be express or implied to resort to the use of force based

on coercion.22 Therefore if a state threatens to use force against the territorial integrity of

another state, then they would be in violation of the use of force principle.

Thirdly, is the legal scope of the term ‘force’. This prevailing view is that force is understood

by states as covering the use of armed military force. 23 That is, that the military of one state

physically engages with that of another state. Further, this force is normally understood to

produce physical damage.24 However such understanding of the meaning of the word force do

not cover new notions, such as the use of cyber warfare through cyber attacks that originate

19 Berdal Aral, ‘Cases of Direct and Indirect Aggression as violations of International Law
in Central Asia and the Caucasus,’ (2001) A Paper Presented To The International
Conference on The Geopolitical And Economic Transitions In Eurasia.
20 Ibid n 16.
21Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, (1996) ICJ Reports
66, 47.
22 Ian Brownlie, International Law and the Use of Force by States (Clarendon Oxford 1963),
364.
23 Sebastian Heselhaus, ‘International Law and the Use of Force’ (2008) International Law
and Institutions- Encyclopedia of Life Support Systems.
24 Ibid.
7
from one state and are aimed against the cyber systems of another state. 25 Though cyber

attacks do not produce physical damage, they nevertheless interfere in the internal affairs of a

state therefore violating the principle of non intervention as was the case of the cyber attacks

was launched against Estonia in 2007.26

Exceptions to the Prohibition of the Use of Force

Although there is an express prohibition against the use of force against the territorial

integrity of any state, there are three recognised exceptions to this rule under the United

Nations Charter. The first exception is in the case of a state exercising its right to self

defence, second is when a people are exercising their right to self determination and finally is

under Chapter 7 of the United Nations Charter, which gives the Security Council the powers

to authorise the use of force in order to maintain international peace and security. We will

examine each provision more closely.

Article 51

Even before the advent of the United Nations Charter, states have always argued for the

inherent right to self defence, that is that a state should be able to protect its sovereignty and

territorial integrity against any external attacks. As such, the right to self defense is

considered a principle of Customary International Law as was held in the Nicaragua case. It

has also achieved the status of being a jus cogens norm. This right is protected under article

51 of the United Nations Charter and is stated as,

25 Matthew Waxman, ‘Cyber attacks as ‘Force’ under the United Nations Charter Article 2
(4)’ (2011) 87 International Law Studies 44.
26 Russell Buchan, ‘Cyber Attacks, Unlawful Uses of Force or Prohibited Intervention?’
(2012) Journal of Conflict and Security Law.
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‘Nothing in the present charter shall impair the inherent right of individual or collective self

defence if an armed attack occurs against a member of the United Nations, until the Security

Council has taken measures necessary to maintain international peace and security.

Measures taken by members in exercise of this right shall immediately be reported to the SC

and shall not in any way affect the authority and responsibility of the SC under the present

charter to take at any time such action that it deems necessary in order to maintain or restore

international peace and security.’

Scope of Article 51

From the above description, the following can be noted. First, this right is inherent in every

state. Secondly, as recognized by the ICJ in its Legality of the threat or use of Nuclear

Weapons Advisory Opinion, this right can only be exercised when there is an armed attack by

one state against another state.27 Secondly, the right to self defence can only be exercised

when there is an armed attack, by one state against another state. However what constitutes

an ‘armed attack’ has been the subject of many debates as it has often been noted that not all

uses of force will amount to an armed attack. 28 The ICJ in attempting to define what

constitutes an armed attack adopted the scale and effects test in the Nicaragua decision and

again in the Oils platform case.29 This test seeks to distinguish between the gravest forms of

the use of force that would in effect, constitute an attack, from other less grave forms. 30 The

court however failed to identify what threshold was required in order for the scale test to be

met; only noting that frontier incidents and isolated minor incidents wouldn’t constitute an

27 Ibid n 21.
28 David Kretzmer, ‘The Inherent Right to Self Defence and Proportionality in Jus Ad
Bellum,’ (2013) 24 (1) European Journal of International Law 242.
29 The Case Concerning Oil Platforms, (Islamic Republic of Iran v United States of America)
[2003] ICJ Rep 161.
30 Ibid n 16.
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armed attack. In the Oil Platforms case, the court rejected the notion that a number of small

minor incidents could cumulatively be taken to constitute an armed attack. 31

Thirdly, is the developing recognition that the right extends to armed attacks that are carried

out by non- state actors. This argument is based on an interpretation of article 51, which does

not expressly state that the right can only be exercised against other states. Where the armed

attack by non state actors can be imputable to a particular state, then the aggrieved state can

exercise their right to self defence. For instance it was held in Nicaragua that armed attack

could not only be carried out by the armed forces of a state, but also by ‘armed bands, groups,

irregular forces or mercenaries’ who are acting on behalf of the state and the state has

effective control of the group.32

Pre- emptive self defence

A plain reading of article 51 of the United Nations Charter indicates that the right to self

defence may only be exercised, where an armed attack has already occurred. 33 There is

however, the notion of anticipatory or preemptive self defence, where a state results to the

use of armed force in order to defend itself from an imminent attack. 34 However such a right,

if it exists, can only be exercised in exceptional circumstances and must satisfy the principles

of necessity and proportionality.35 In an earlier situation known as the Caroline incident in

1837, the US cited self defence as the basis for taking preventive action against an attack on

the Caroline Steamer. A test for anticipatory self defence was developed to be invoked where

31 Ibid n 29.
32 Ibid n 16.
33 Yoram Dinstein, ‘War, Aggression and Self-Defence,’(Cambridge University Press 2001)
167.
34 Leo Van Den Hole, ‘Anticipatory Self Defence under International Law’ (2003) 19 (1)
American University International Law Review 73.
35 Ibid.
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the situation that was instant, overwhelming, leaving no choice of means and no moment of

deliberation.36 If the threat does not satisfy this test, then the aggrieved state can refer the

matter to the United Nation Security Council for further action. Moreover, the action taken by

the state facing the imminent threat must be proportional.

CHAPTER 7 RESOLUTIONS

The Security Council of the United Nations is the body tasked with the maintenance of

international peace and security. To this effect, the Charter gives the Security Council the

power to determine the existence of any threat to peace and to decide on the appropriate

measures to be taken.37 However in such cases, the Security Council should first call upon the

aggrieved parties to comply with certain measures in order to prevent an aggravation of the

situation.38 Where the parties are not willing to comply, the Security Council is then allowed

to take measures that do not involve the use of armed force in order to give effect to its

decisions. Some of the measures anticipated by the United Nations Charter include the

interruption of economic relations and the severance of diplomatic relations. 39 Only when the

measures taken in article 41 are inadequate, is the Security Council authorised to take action

by air, sea and land forces in order to maintain or restore international peace and security. 40

The scope of the Security Council’s powers to authorize the use of force has often been under

a lot of scrutiny. Indeed some commentators note that not all instances when the SC through

chapter 7 resolutions authorised the use of force to

36 Letter of Mr. Webster to Mr. Fox (April 24, 1841) in 29 British and Foreign State Papers,
1840-41 At 1137-38 (1857).
37 United Nations Charter, Article 39.
38 United Nations Charter, Article 40.
39 United Nations Charter, Article 41 .
40 United Nations Charter, Article 42.
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However the ICJ in its Namibia advisory opinion was called upon to review the scope of the

UN organ. In its Advisory Opinion, it found that the Security Council is bound by the UN

Charter standards as outlined in its purposes. Further, an examination of article 109 of the

United Nations Charter reveals that the SC is bound in exercising its authority, to ensure that

it is working in accordance with the limits of the Charter. These legal provisions serve as a

limit to its power.

United Nations Security Council Resolutions Authorising the Use of Force

Since its inception in 1945, the Security Council has on several occasions exercised the

powers conferred by Chapter 7 of the United Nations Charter to authorise the use of force by

states. As noted, the UN has no ‘armed forces’, therefore any authorisation to resort to the use

of force is given to UN member states or regional organizations.41

Korea

The first time the council authorized the use of force was in the Republic of Korea. In 1950,

North Korean forces invaded South Korea prompting the Security Council to issue resolution

82 which determined that North Korea's actions constituted a breach of peace. The Security

Council called for the immediate cessation and withdrawal of North Korean troops in South

Korea. 42 When North Korea failed to comply with the demands of resolution 82, the Security

Council passed resolution 83 calling on the UN member states to ‘furnish such assistance to

the Republic of Korea as may be necessary to repel the armed attack and to restore

international peace and security’.43 Resolution 84 was adopted in July which again called

41 Ibid no.39.
42 United Nations Security Council Resolution 82 of 1950- S/RES/82(1950).
43 United Nations Security Council Resolution 83 of 1950- S/RES/83(1950).
12
upon states to provide military assistance under the command of the USA. 44 The SC is often

criticised as lacking the powers under article 43 to authorise the use of force in Korea in

1950.

Iraq- Operation Desert Storm

The Security Council’s authorization of use of force in Iraq is perhaps one of its most

controversial to date. In 1990, Iraqi troops invaded Kuwait in an attempt to annex her

territory. The council, acting under articles 39 and 40 of the United Nations Charter passed

Res. 660 which determined that Iraq’s actions constituted a breach of peace and security and

demanded the immediate withdrawal of Iraqi forces in Kuwait. When Iraq failed to comply,

the SC imposed embargoes against Iraq in order to induce her to comply with Resolution

660.45 In Resolution 678, the council gave Iraq one last chance to comply with the previously

issued resolutions, failure to which the council authorized members to use ‘all necessary

means to uphold and implement’ the previously issued resolutions. This resulted in the

United States led coalition forces invading Iraq on 17 th January 1991 in what was known as

Operation Desert Storm. In 2002, the United States used Resolution 678 as the basis of its

invasion in Iraq, when Iraq had failed to comply with the demands of resolution 1441 that

required her to destroy her nuclear weapons.46 This invasion was however not supported by

the Security Council.

44 United Nations Security Council Resolution 84 of 1950- S/RES/84(1950).

45 United Nations Security Council Resolution 661 of 1990- S/RES/661(1990).
46 United Nations Security Council Resolution 1441 of 2002- S/RES/1441(2002).
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Libya

In 2011, civilians started undertaking political protests calling for the end of Libyan Leader

Muammar Gaddafi's 41 year reign in the country. The city of Benghazi became the

opposition’s stronghold. Gaddafi refused to step down and instead used government armed

forces to quell the protests resulting in gross and massive human rights violations. The SC

passed resolution 1970 noting the international community’s responsibility to protect the

civilians in the crisis. It also imposed an arms embargo and a travel ban on Gaddafi's family

and top level members of his government. 47 When these measures failed to have any effect,

the council issued Resolution 1973 calling for member states to take all necessary measures

to protect the civilians who were under attack in a bid to promote peace and security in the

country. The resolution also created a no fly zone over Libya. NATO and a host of other

countries moved in and carried out airstrikes order to implement the no fly zone in the region.

NATO's involvement in the situation has often been criticized, as its airstrikes resulted in

massive civilian casualties.

JUS AD BELLUM IN PRACTICE

WORLD WAR II PERIOD

Introduction

Prior to and until the end of the First World War, resorting to the use of armed force was

regarded as an acceptable way to solve disputes.48 However, in the wake of the destruction

and harm that the war had caused, many countries felt the need to regulate that freedom. In

1919, the Covenant of the League of Nations and the Treaty of Paris (the Briand-Kellogg
47 United Nations Security Council Resolution 1970 (2011)- S/RES/1970 (2011).
48 International Humanitarian Law; Answers to Your Questions (ICRC 2015).
14
Pact) in 1928 sought to outlaw war.49 During the First World War methods of warfare,

including those that were not new, were used on an unprecedented scale. These included

poison gas, the first aerial bombardments and the capture of hundreds of thousands of

prisoners of war.50 The treaties of 192851 and 192952 were a response to those developments.

This was the beginning of the codification of the laws of jus ad bellum; the prohibition of use

of force and its exceptions. However, the Paris Treaty was not strong enough to prevent a

war. It lacked clear methods of enforcement. This therefore led to the Second World War.

This section analyzes whether the rules of jus ad bellum were respected in the events leading

to the Second World War.

After the defeat of the Axis powers during the First World War, peace returned but there was

still tension in the relations between the countries involved. There was a global economic

crisis and the growing power of militaristic, dictator-led nations spreading fear and anxiety.

In particular, Japan militarism and the German communist ways were worrying to the

international community.53 When Hitler became president of Germany, he expressed a desire

for Germany to acquire and spread out to as many European countries as possible. Japan on

the other hand had already started making its acquisitions with the invasion of Manchuria,

China by 1931. This action was condemned by the League of Nations and many countries

such as the U.S. refused to recognize the political power they sought there.54

49 Ibid.
50 Ibid.
51 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological Methods of Warfare 1928.
52 Geneva Convention relative to the Treatment of Prisoners of War 1929.
53 Ted Grimsrud, ‘The Long Shadow: World War II’s Moral Legacy (02. Jus ad bellum) ‘
(Peace Theology, 29th Dec 2010) < https://peacetheology.net/world-war-ii/the-long-shadow-
world-war-iis-moral-legacy-02-jus-ad-bellum/> accessed on 23/11/2016.
54 Ibid.
15
Three years of mounting international tension which consisted of, the Spanish Civil War, the

union of Germany and Austria, Hitler's occupation of the Sudetenland and the invasion of

Czechoslovakia - culminated in the German invasion of Poland on 1 September.55 Germany,

Italy, and Japan were moving more aggressively with Italy invading Ethiopia. The Allied

parties, Britain and France declared war on Germany. They had faced attacks from them. The

U.S.A remained largely neutral as they had not been directly affected by the war. They

offered indirect military support to allies. However, in 1941, Japanese forces bombed the

American naval base at Pearl Harbour killing more than 2300 Americans.56 Soon after,

Germany declared war on the U.S. and the Second World War officially begun.

Assessing the legitimacy under Jus ad Bellum

While assessing the legitimacy of the decision to resort to war, it is clear that most of the

Axis parties had no legitimate cause for invasion and aggression. Most of it was as a result of

the desire to conquer and acquire other countries. Most of the parties in the allied camp

however, reacted in line with what the UN Charter envisions as self- defence. Britain,

Germany, France and later the Soviet Union reacted against invasion and attacks by the Axis

powers.57

In trying to justify a ‘just war’, President Roosevelt gave a speech in 1941 with what he

called the ‘Four Freedoms.’ These were the aims of the war to America. They included; the

freedom of speech and expression, freedom to worship, freedom from want (economic

security) and the right to freedom from fear (majorly fear of aggression and invasion by other

55 Scott D. Sagan, ‘The Origin and Prevention of Major Wars: The Origins of the Pacific
War’ (1988) 18 (4) Journal of Interdisciplinary History, 893.
56 Ibid.
57 Ibid (n) 55.
16
states).58 He stated that these were the most important and most violated rights by the Axis

powers and therefore had to be defended by all. Further, he and Britain’s Prime Minister,

Winston Churchill signed the Atlantic Charter. It outlined the Allies’ eight main war aims;

“The first point eschewed aggrandizement, territorial or otherwise. The second

forswore changes not in accord with the ‘freely expressed wishes of the peoples

concerned.’ The third affirmed ‘the right of all peoples to choose the form of

government under which they will live.’ The fourth promised equal terms of trade to

all nations, with ‘due respect’ for the ‘existing obligations’ of the United States and

Britain. The fifth endorsed improved labour and living standards in all countries. The

sixth looked forward, ‘after the final destruction of the Nazi tyranny,’ to a peace

‘which will afford to all nations the means of dwelling in safety within their own

boundaries, and which will afford assurance that all the men in all the lands may live

out their lives in freedom from fear and want.’ The seventh supported free travel and

commerce across the world’s oceans. The eighth called on the nations of the world to

disarm, ‘pending the establishment of a wider and permanent system of general

security.”59

Even though the UN Charter came after the Second World War, there had been numerous

attempts at the codification of the laws prohibiting use of force and instances where it was

allowed. In summary, looking only at the reason for taking part in the war, the Allied powers

58 David M. Kennedy, Freedom from Fear: The American People in Depression and War,
1929-1945 (New York: Oxford University Press 1999), 469.
59 H.W. Brands, Traitor to His Class: The Privileged Life and Radical Presidency of
Franklin Delano Roosevelt (New York: Doubleday 2008).
17
respected the laws and its exceptions while the Axis did not. The Allied powers made

attempts at initiating a ‘just war.’

COLD WAR PERIOD

Although the U.S. and Soviet Union had fought as allies in the war, there was an

overwhelming sense of mistrust and enmity among them. The Americans had been wary of

Soviet communism and concerned about Russian leader Joseph Stalin’s tyrannical rule. The

Russians on the other hand were angered by America’s refusal to treat the USSR as a

legitimate part of the international community as well as their delayed entry into World War

II, which resulted in the deaths of tens of millions of Russians.60

It was however more difficult to assess respect of laws of Jus ad Bellum during this period as

states engaged in what may be termed as indirect attacks therefore making it unclear whether

or not it amounted to use of force under Article 2 (4) of the U.N. Charter.61 One state would

secretly supply military and economic support to mercenaries, rebels or insurgents against

another state.62 This made it necessary for the provisions of article 2(4) and 51 be revisited for

interpretation. The use of these contracted non- state actors caused a problem as the charter

had previously envisioned the relations between states only. However, the U.N. later

condemned such actions and other forms of coercion by non- state actors especially in the

Middle East and Southern Africa.63

60 ‘Cold War History’ (History)< http://www.history.com/topics/cold-war/cold-war-history

> accessed on 14/11/2016.
61 Sean D. Murphy, ‘Protean Jus Ad Bellum’ (2009) 27 (22) Berkeley Journal of
International Law <http://scholarship.law.berkeley.edu/bjil/vol27/iss1/2> accessed on
13/11/2016.
62 Ibid.
63 United Nations, Historical Review of Developments Relating to Aggression 225-51
(2003).
18
The General Assembly in 1974 adopted its resolution on the Definition of Aggression;64 it

included the classical definition of the bombardment of one state by another and also

included some definitions which were not so obvious such as the blockading of a part of a

harbour as an act of aggression. The resolution also recognized that use of coercion which

amounted to a violation of Article 2(4) could result in an act of aggression.65

The International Court of Justice in the Nicaragua case found that acts such as the mining of

another state's harbours and attacks on another state's naval vessels and oil facilities, were

violations of Article 2(4).66 The court recognized that an armed attack might occur through

non- state actors operating across a border. The court further determined that attribution of

such an attack to the state was important to trigger the right to self- defence. The U.S. in the

case was accused of assisting belligerents in Nicaragua. They claimed they were exercising

the right to collective self- defence on behalf of El Salvador as Nicaragua had operated there.

The court declined this argument.67

Another issue that emerged is whether Article 51 covered anticipatory self- defence. Its

wording did not seem to support this notion since it acknowledges a right of self-defence only

"if an armed attack occurs" against a UN Member.68 However, a growing number of states

supported the right to anticipatory self- defence when there is convincing evidence that an

64 General Assembly; Resolution 3314 (XXIX) (Dec. 14, 1974).

65 Ibid art. 3(g).
66 Ibid no. 16.
67 Ibid.
68 Ibid no. 22.
19
armed attack is occurring even though the attacker has not yet penetrated the defending state's

frontier.69 This was the defence given by Israel for their 1967 attack directed at Egypt.70

Later on, a panel convened by UN Secretary General Kofi Annan in 2004 issued a report

supporting the concept of a limited right of unilateral pre-emptive action when ‘the

threatened attack is imminent, no other means would deflect it and the action is

proportionate.’71 Towards the end of the cold war, the concept of humanitarian intervention

began to emerge. Examples of intervention undertaken to prevent human rights crises during

the Cold War include the interventions of India in East Pakistan in 1971, Vietnam in

Cambodia in 1978, or Tanzania in Uganda to oust Idi Amin.72

POST COLD WAR PERIOD

Although the concept of humanitarian intervention arose towards the end of the cold war, it

gained momentum in the 1990s. It involves the intervention of one state into another where

the invading state intends to stop or deter mass violation of human rights and prevent crimes

against humanity and war crimes.73 Some scholars have argued that humanitarian

interventions are not unlawful under Article 2(4) as it is not the type of force envisioned and

69 Quincy Wright, The Role Of International Law In The Elimination Of War (Manchester
University Press 1961) 60.
70 Yoram Dinstein, War, Aggression and Self- Defence (3rd Edn, Cambridge University
Press 2001) 172-73.
71 The Secretary-General, High-level Panel on Threats, Challenges and Change, Report of
the Secretary-General, para. 188, U.N. Doc. A/59/565 (Dec. 2, 2004).
72 Ibid (n) 63.
73 Ibid.
20
prohibited.74 Others have argued that it falls under the provisions of self- defence under

Article 51 as protection of others falls under that ground. 75

Still, questions of sovereignty persist where humanitarian intervention is involved. However,

humanitarian crises in the 1990's, especially in Rwanda, continued to provoke debates over

the legality of humanitarian intervention. In 1999, the NATO bombing campaign against the

Federal Republic of Yugoslavia (Serbia), undertaken to prevent its government from

engaging in ethnic cleansing and atrocities in the autonomous province of Kosovo saw the

concept of Humanitarian intervention garnering more support.76 After this intervention, the

International Commission on Intervention and State Sovereignty (ICISS) which was

established by the Government of Canada issued a report in 2001.77 The report established

that all states had a responsibility to protect "in a conscience shocking situation crying out for

action.”78 The aim was to provide a legal and ethical foundation for humanitarian

intervention. In 2004, a U.N. high-level panel, writing after the 2003 U.S. intervention in

Iraq, agreed with the ICISS that there existed an "emerging norm that there is a collective

international responsibility to protect," but concluded that armed force may only be used to

fulfil the responsibility if authorized by the Security Council.79 It further recognized five

requirements that must be met in order for the intervention to be legitimate; the first was with

74 Michael Reisman, ‘Humanitarian Intervention to Protect the Ibos’ (1973) Humanitarian

Intervention And The United Nations 167, 177.
75 George Fletcher and Jens David Ohlin, Defending Humanity: When Force Is Justified
And Why (Oxford University Press 2008).
76 J.L. Holzgrefe & Robert 0. Keohane (eds), Humanitarian Intervention: Ethical, Legal And
Political Dilemmas ( Cambridge University Press 2003) citing Nicholas J. Wheeler, Saving
Strangers: Humanitarian Intervention in International Society ( OUP 2000).
77 International Commission on Intervention and State Sovereignty [ICISS], The
Responsibility to Protect (2001), <http://www.iciss.ca/report2-en.asp> accessed on
13/11/2016 .
78 Ibid.
79 Ibid no, 71, paras.203, 196, 272.
21
regard to the seriousness of the threat, exhaustion of peaceful means, the proper purpose of

those intervening, proportionality, and a balancing of the ensuing consequences.80

The latest development in R2P was the establishment of The Global Centre for the

Responsibility to Protect which was set up in 2008. It defines R2P as “a principle which

seeks to ensure that the international community never again fails to act in the face of

genocide and other gross forms of human rights abuse.”81

CHALLENGES TO IMPLEMENTATION

● There is a challenge in terms of interpretation of the laid out laws in jus ad bellum.

For instance in Article 51 of the UN Charter, self -defence against an armed attack by

another member state is permitted. However, the Charter does not describe what

constitutes an armed attack hence creating the problem of ambiguity and different

interpretations.

● Over the years, due to the development in technology, methods and techniques of

attacks and war have evolved. The question therefore arises as to whether cyber

attacks no matter how serious constitute an armed attack and whether in such cases

the rules of jus ad bellum apply82.

● Lack of a set up international body to implement the set rules of jus ad bellum. As

much the United Nations is the body that comes up with international rules and

guidelines to govern international relations, it lacks implementation mechanism and

80 Ibid.
81 Ibid (n) 1.
82 Sophie Barnett, ‘Applying the Rules of Jus ad bellum in Cyberspace’ (E-International
Relatons students, 1st Sept 2016) <http://www.e-ir.info/2016/09/01/applying-jus-ad-bellum-
in-cyberspace/> accessed on 23/11/2016.
22
 therefore it is hard to hold states accountable when they fail to follow the laws put in

place.

● There’s lack of political goodwill from some states when it comes to implementing

the rules of jus ad bellum in their states. This creates a challenge to implementation of

the rules as without cooperation from states then it is impossible to implement the

laws in place.

● It is a challenge to ensure that non- state actors such as belligerent groups adhere to

these laws before resorting to war.

● The politics of the security council is a challenge as the Veto powers sometimes pass

resolutions as regards to war that favour them.

JUS IN BELLO

History of Jus in Bello

Jus in Bello is a Latin phrase which means ‘the law of waging war’. It refers to standards by

which a country can conduct war and addresses the practices forbidden to belligerents during

a war.83

There have always existed rules in warfare. This was evident in ancient texts such as the

Bible, the quran, the mahabharata as well as from oral traditions. However, the concept of Jus

in Bello, as we understand it today, as well as the terminology itself, did not come into

existence until relatively recently, in the 20th Century.84

83 ‘Jus in Bello’ ( US legal definitions) < http://definitions.uslegal.com/j/jus-in-bello/ >

accessed on 14/11/2016.
84 Robert Kolb, ‘Origin of the twin terms jus ad bellum/jus in bello.’ (1997)
320 IRRC <https://www.icrc.org/eng/resources/documents/article/other/57jnuu.htm>
accessed on 12/11/2016.
23
In the ancient times, a form of the just war doctrine existed. There was no uniform

application of standard rules of warfare that cut across all situations as is the case today.

Instead the rules were modified, bent or broken depending on on how justified one was in

resorting to war in the first place. Legal scholarship was therefore more concerned with just

reasons for going to war which were adjudged to be; defence, recuperation of property,

recovery of debts and punishment.85

In the 17th, 18th and 19th centuries this conception of war was replaced by one that viewed

war as a right of states. This normalisation of warfare meant that the law was now concerned

with conduct in the war more so than with reasons for going to war.86 This was the origin of

the concept behind present day understandings of Jus in bello or IHL. Eventually, this

concept was cemented by the outlawing of war by the league of nations. This meant that the

law leading to war, Jus ad Bellum, or Jus Contra Bellum as it were, was now a distinct

concept from the laws that applied to regulate war or Jus in Bello.87

Once the concept had been established it was not long before the phrases used to distinguish

between the two branches of public international law gained popularity.

Principles of Jus in Bello

There are key principles that govern International humanitarian law. They are derived from

the binding Geneva Conventions and their Protocols. Many of them are also considered part

of customary IHL and therein lies their importance, as they bind even those parties that have

85 Ibid.
86 Ibid.
87 Ibid.
24
not ratified the relevant Conventions or Protocols. Decisions made in combat are often guided

by consideration for these principles.

1. The principle of distinction

This has been labelled the most important principle in IHL. It is two pronged.88 First it refers

to the distinction made by those taking part in armed conflicts between civilians and

belligerents, or combatants as they are referred to in International armed conflicts, and

between civilian objects and military objects and accordingly targeting only combatants. In

law this principle is expressed in Article 48 of Additional protocol 1 which states that:

In order to ensure respect for and protection of the civilian population and

civilian objects, the Parties to the conflict shall at all times distinguish between

the civilian population and combatants and between civilian objects and

military objectives and accordingly shall direct their operations only against

military objectives.

This principle was similarly acknowledged in Lieber Code, which is regarded as one of the

first attempts to codify the law of war during the American Civil War in 1863.

Secondly it involves a responsibility on combatants to distinguish themselves from civilians.

Article 44 (3) of Additional protocol 1 reads:

In order to promote the protection of the civilian population from the

effects of hostilities, combatants are obliged to distinguish themselves

from the civilian population while they are engaged in an attack or in a

military operation preparatory to an attack.

88‘Distinction -Glossary’ ( How does law protect in war, 5 May 2012)

<https://casebook.icrc.org/casebook/doc/glossary/distinction-glossary.htm > accessed on
14/11/2016.
25
According to this article it is sufficient distinction for a combatant to bear

arms openly when he is visible to the adversary.

It is premised on the often quoted statement by Jean-Jacques Rousseau regarding warfare in

his 1762 treatise The Social Contract; ‘...that the only legitimate object which states should

endeavor to accomplish during war is to weaken the military forces of the enemy.’ this

statement was first codified in the St. Petersburg Declaration.

Therefore, only attacks against military targets and military objects are seen as legitimate.

Direct attacks against civilians and civilian objects are prohibited.

Article 51 (2) of AP1 states that; ‘The civilian population as such, as well as

individual civilians, shall not be the object of attack.’ while article 52 (1) states that;

‘Civilian objects should not be the subject of attacks or reprisals.’

Direct attacks against civilians are a grave breach of the Geneva Conventions and as

such are considered war crimes punishable by International Criminal Law.

By the same rationale indiscriminate attacks are also prohibited. Article 51 (4)

of AP1 reads;

Indiscriminate attacks are prohibited. Indiscriminate attacks

are:

a) those which are not directed at a specific military objective;

b) those which employ a method or means of combat which

cannot be directed at a specific military objective; or

c) those which employ a method or means of combat the effects

of which cannot be limited as required by this Protocol;

26
 and consequently, in each such case, are of a nature to strike

military objectives and civilians or civilian objects without

distinction.

Combatants are taken to include members of both regular and irregular armed

forces such as militia and volunteer corps. As such they are both required to

distinguish themselves from civilians.89

Civilians lose their protection for such a time as they take up arms and participate directly in

hostilities for example in a levee en masse.90

Though the principle of distinction is primarily intended for the protection of civilians, it has

a benefit for combatants as well. Targeting civilians is not only wasteful of scarce resources,

it also results in loss of public support, which is crucial for the war effort. It has been said that

support from the general population increases chances of success in war.

2. Principle of Proportionality

All military measures taken by belligerents must be proportional to the aim they seek to

accomplish. For example if it is seen that an excessive number of civilians would be killed by

an attack when compared to the relative importance of the advantage sought, the attack is

prohibited91. It envisions an equilibrium where two principles meet i.e. the principle of

humanity and that of military necessity.

This principle is codified under Article 51 (5) (b) of Additional Protocol I. The provision

states that:

89 Geneva Convention III 1949, art 4 A (1).

90Additional protocol I 1977, art 51 (3).
91 Ibid no. 5.
27
[an attack is considered indiscriminate and hence prohibited if it] may be expected to cause

incidental loss of civilian life, injury to civilians, damage to civilian objects which would be

excessive in relation to the concrete and direct military advantage anticipated.

Furthermore Article 85 (3) (b) of AP 1 states that indiscriminate attacks ‘when committed

wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious

injury to body or health’ are a grave breach of the conventions and therefore a war crime.

This principle was also considered in the Advisory Opinion by the ICJ on use of nuclear

weapons in paragraph 43 whether it is possible for weapons of the nature of nuclear weapons

to meet the proportionality test.

3. Principle of Precaution

This principle is founded on the rule on the protection of civilian population. In that regard,

each party is expected to ensure that they undertake every safeguard to protect this population

and its objects against the effect of attacks92. This protection may be advanced by giving prior

warning of planned attacks on military objectives which may harm them. In the harsh reality

of warfare, civilian persons and objects may be the incidental recipients of attacks directed at

military objectives. In such situations, they are often referred to as ‘collateral damage 93’. This

is ‘‘the loss of life of, or injury to, civilians or other protected persons, and damage to or the

destruction of the natural environment or objects that are not in themselves military

objectives’’. It is therefore notable that precaution is required, unless the situation permits

otherwise.

92 ICRC, Rule 22 CIHL Rule 22. Principle of Precautions against the Effects of Attacks
<https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule22> accessed on 10th
November 2016.
93 San Remo Manual on the International Law Applicable to Armed Conflicts at Sea 1994,
Rule 13 (c).
28
This rule was first set out in Article 2(3) of the 1907 Hague Convention (IX) which called for

commander of a naval force to take all due measures in order that the undefended town or

port may suffer as little harm as possible94. Currently, it is codified more clearly in Chapter

IV that is article 57 and 58 of Additional Protocol I which relate to precautions in attack and

precautions against the effects of attack respectively.

Moreover, the principle has been appreciated in case law for example in the Kupreškić case,

the Tribunal found the requirement to take precautions in attack to be customary in nature

and upheld it as it specified and fleshed out general pre-existing norms95.

4. Principle of unnecessary suffering

This mainly touches on the prohibition and restriction of certain means and methods of

warfare that are considered to inflict unnecessary suffering or superfluous injury on

combatants96. This was recognised as early as 1868 in the St Petersburg Declaration which

affirmed that the sole objective during war is to weaken the military forces of the enemy and

that it would be sufficient to the disable the greatest possible number of men. This objective

would be surpassed if the arms employed ‘uselessly aggravate the sufferings of disabled men,

or render their death inevitable’. Therefore, the use of such arms would be contrary to the

laws of humanity. The main codification of this principle is found in article 35 (2) of AP I

which states that; ‘It is prohibited to employ weapons, projectiles and material and methods

of warfare of a nature to cause superfluous injury or unnecessary suffering.’

94 ICRC, Rule 15. CIHL Precautions in Attack <https://ihl-databases.icrc.org/customary-

ihl/eng/docs/v1_rul_rule15> accessed on 10th November 2016.
95 Prosecutor v Kupreškić et al, ICTY, (2000), Judgement.
96 Melzer Nils, International Humanitarian Law: A Comprehensive Introduction
(International Committee of the Red Cross 2016) 19.
29
It is also found in the Hague Convention IV under article 23(e) which states that; ‘(it is

especially forbidden) to employ arms, projectiles, or material calculated to cause unnecessary

suffering’

This is what has led to the prohibition of use of chemical weapons and biological weapons in

the Conventions of 1993 and 1972 respectively. As well as prohibition of use of such other

weapons as blinding laser weapons, incendiary weapons, non-detectable fragments, etc.

It is also addressed in the ICJ advisory opinion on the use of nuclear weapons under

paragraph 78.

(This discussion continues under the regulation of means and methods of warfare in the

components of jus in bello)

5. Principle of Humane treatment or humanity

It is the underlying principle of IHL hence the decision to refer to this body of law as

humanitarian law as opposed to the law of armed conflict. This is because seeing the

suffering of those in the battle of Solferino and a desire to see them treated humanely is what

motivated Henry Dunant, the father of modern IHL. The principle of humanity thereby comes

in to regulate and put limits of use of certain means and methods of warfare. Also, it calls for

the protection of specific groups of people. Here, the humane treatment is with reference to

the civilians, persons hors de combat and prisoners of war. This is set out in common Article

3(1) of the Geneva Conventions which asserts that those persons ‘should in all circumstances

be treated humanely, without any adverse distinction founded on race, colour, religion or

faith, sex, birth or wealth, or any other similar criteria.’97

97 ICRC Rule 87. CIHL humane treatment

<https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule87> accessed on
10/11/2016.
30
It was addressed in the judgement of case of Nicaragua v the U.S.A. before the ICJ 98. It

elaborated on the true meaning of humanitarian aid and emphasised that non-discrimination is

an essential part of this principle.

6. Principle of military necessity

It recognizes that it may be militarily necessary to resort to certain security measures not

permissible in times of peace. It ‘permits measures which are actually necessary to

accomplish a legitimate military purpose and are not otherwise prohibited by international

humanitarian law.’99 However, it also clarifies that this necessity does not give the armed

forces or belligerents the freedom to wage an unrestricted or total war. It must therefore be

balanced with the principle of humanity.

7. Equal application principle

As the name suggests, this principle asserts that the laws of war apply equally to all

belligerent parties in an international armed conflict, irrespective of the question of how the

war began100. It is also referred to as ‘equality of belligerents’ principle. The principle is in

place so as to trump certain assumptions about jus in bello. An example of a misleading

assumption is that this body of law grants belligerents certain rights including that to attack

the opposing army which is false. In actuality, jus in bello seeks to govern the conduct of

parties during conflict and more specifically, the treatment of certain protected groups such as

the wounded, sick of prisoners of war.

98Ibid no. 16.

99 ‘Military necessity- Glossary’ ( How does law protect in war, 5 May 2012) <
https://casebook.icrc.org/casebook/doc/glossary/military-necessity-glossary.htm > accessed
on 14/11/2016.
100 Adam Roberts , 'The equal application of the laws of war: a principle under pressure'
[2008] 90(872) International Review of the Red Cross
<https://www.icrc.org/eng/assets/files/other/irrc-872-roberts.pdf > accessed 9 November
2016.
31
This principle has been recognized in the various laws-of-war treaties. For example in

Additional Protocol I’s preamble, it is stated that ‘that the provisions of the Geneva

Conventions of 12 August 1949 and of this Protocol must be fully applied in all

circumstances to all persons who are protected by those instruments, without any adverse

distinction based on the nature or origin of the armed conflict or on the causes espoused by or

attributed to the Parties to the conflict’101.

It is important to note that all these principles have to be used simultaneously in order to

ensure that the main themes of jus in bello are upheld. These themes will be discussed further

in the next topic.

Main components of Jus in Bello

Jus in bello, as mentioned previously, seeks to regulate the conduct of parties during warfare.

This therefore means that it is comprised of three main components:

a) Firstly, jus in bello strives to achieve its principle of humanity and unnecessary

suffering by regulating the means and methods of warfare. ‘Means and methods; refer

to the type of weapon used and the manner in which they are utilised. After

recognising the atrocities and suffering experienced during WWI and II through the

employment of certain weapons, it was deemed necessary to outlaw the use of the

weapons. Especially those which act indiscriminately and are unproportioned. Article

35 of API sets out that in an armed conflict, their right to choose means and methods

of warfare is ‘not unlimited’. The use of that phrase was astute in the drafters’ part as

it would have been an impossible task to come up with a list of ‘approved’ methods.

101 Ibid no.90, preamble.

32
 Conversely, they have come up with a number of Conventions which depict the

methods that are prohibited. Some of the methods that have been captured through

Conventions include: use of expanding weapons102, biological weapons103, chemical

weapons104, land mines105, use of child soldiers106 etc. This list is expected to be ever

expanding as the world develops and forms new discoveries. Issues have arisen

whether cyber warfare may categorised here and how it should be regulated.

b) Secondly, this body of law necessitates the protection of the so-called protected

persons. These protected persons refer to those who do not participate in conflicts and

those who are no longer taking part; for example the wounded and sick combatants

and combatants who have been captured and have acquired prisoners of war status.

The four Geneva Conventions and the two Additional Protocols are the main sources

of law for this area. The first two conventions deal with the amelioration of the

condition of the wounded and sick in the armed forces in the field and at sea. The

third one touches on the protection of prisoners of war. The fourth one dwells on the

protection of civilian persons in time of war. Finally, the two protocols govern the

protection of victims of international and non-international armed conflicts.

c) Lastly, jus in bello seeks to govern the relationship between belligerents states and the

neutral states. The law of neutrality aims to protect neutral states which do not

102 Hague Declaration on expanding bullets 1899.

103Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their Destruction 1972.
104Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on their Destruction 1993.
105Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
Personnel Mines and on their Destruction 1997.
106Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict 2002.
33
 necessarily support belligerent states. Meanwhile, those combatants who may cross

into the neutral territory must be interned by the territory and treated as prisoners of

war according to the Third Geneva Convention.The belligerents are expected to

respect the territory of the neutral state and not move troops or convoys of

ammunition or supply across the territory of a neutral state.

Implementation of jus in bello

This includes all measures that must be taken to ensure that the rules of IHL are fully

respected. It is characterised by three factors.

i. Voluntary and normative means. This is where there is spontaneous

compliance by the parties plays a greater role the external control and

sanctions. In most cases even the belligerent themselves are largely

responsible for the implementation of the law itself. At this juncture, the

parties reach a consensus to implement the law out of the own volition.

ii. Very little judicial implementation of IHL. There has been several cases

that have made a landmark impact in ensuring implementation for example

the Nicaragua case107, Armed Activities Case(2005)108 of the ICJ

iii. The Direct sanction of IHL. Most means of sanctions of the breaches of

IHL are indirect. This is because there is no sole institution established and

tasked with the mandate of enforcing IHL. It is mainly done through

human rights courts or international criminal courts.

107Ibid (no. 16).

108Armed Activities on the Territory of the Congo (DRC v Uganda) (2005) ICJ rep 168.
34
 The implementation process is undertaken in two main stages i.e. Prevention and

Control

a) Prevention. At this stage, the law seeks to ensure that measures re put in place to

ensure that humanitarian violations are not committed. This can be done through

educating the relevant parties on the law applicable during war.

● In time of peace and war, dissemination of the text of the Convention so that

the principles may be becomes known to the entire population in particular to

the armed forces and the Chaplins. Legal advisers are trained to help out the

commanders in ensuring that the Geneva Conventions and the Protocol are

adhered to which in the long run they shall use to advise the armed forces on

the appropriate instructions109.

● Professional and educational bodies e.g. National Red Cross and Red

Crescent. The task of this two bodies is to assist in times of war.

b) Control: At this level, it is further divided into three different levels;

● Protecting powers. This is whereby a neutral state or a state not involved in the

armed conflict is nominated to safeguard the interests of one or more state parties

to that armed conflict. The reasoning behind this is that all dispute resolution has

fallen hence deemed necessary.

● ICRC. The ICRC serves a purpose during armed conflict by visiting prisoners,

establishing family links, organization of humanitarian aid, and organization of

repatriations. Through this, it ensures that it maintains control of the matter and

allows for the maintenance of humanity during the armed conflict. The

109 Additional Protocol I, Art 82.

35
 International Committee of the Red Cross serves as a neutral independent body

working with all parties to the conflict so as to help victims of the armed conflict.

States are obliged under Article 81 of the Additional Protocol 1 to accept their

assistance. During these meetings, they conduct interviews to check the

conditions of detention and to ensure the wellbeing of detainees. If anything is

wrong, they approach the state and try to come up with a plan of improving the

facilities. They also intervene in the form of providing relief supplies and medical

assistance to victims of armed conflict.

● Fact finding/inquiry. This stage is whereby, it has not worked so far due to several

factors such as untruths can be used as a means of propaganda, sensitive intrusion

into domestic matters. International Fact-Finding Commission which was set up

and states are encouraged to use its services. It was established pursuant to Article

90 of Protocol 1.It is tasked with investigating allegations of grave breaches and

other serious violations of IHL110.they also interact with human rights

commission so that they may determine the various rights of individuals.

● Tribunals have also been set up e.g. International Criminal Tribunal of Former

Yugoslavia and Special Court for Sierra Leone which presided over the landmark

case of Charles Taylor who was sentenced to 50 years after being charged with

crimes such as recruiting and using child soldiers, slavery, and enslavement.

Challenges to implementation.

110 Dr. Gisela Perren - Klingler, ‘A Word from the President.’ (International Humanitarian
Fact-finding Commission) <http://www.ihffc.org/index.asp?Language=EN&page=home>
accessed on 23/11/2016.

36
1. There is noncompliance by the multitude of non-state actors. Due to the fact that they

are not voluntarily party to treaties and conventions which they would be legally

bound to, it is difficult to ensure comprehensive compliance. This poses as a

challenge because they are not privy to the international laws governing them so it

does little to ensure that they will abide by their standards. While most IHL and

human rights treaties only address the conduct of states, neither Additional Protocol II

nor Common Article 3 have any provisions for regulating the monitoring, reporting

and verification (MRV) of non-State group behaviours

2. The fact that there is lack of an IHL court, and IHL High Commission, IHL

Commission on the model of the human rights bodies has also posed as a challenge.

This is because when criminals are caught, there is not an established court where the

hearing can take place. As of now, they are mainly held by the ICC and at the national

level. This is a problem because no court can claim exclusive jurisdiction on the

matter.

3. There is lack of political will by the national government to ensure that non-state

actors comply with the relevant laws set. This is because the government is at a better

position than international bodies to know of their operations. This poses as a

challenge because instead of strengthening the attempt of getting the non-state actors

to comply with law, they lack the drive and hence nothing is done to rectify this issue.

4. There has also been the development in terms of the various kinds of crimes that can

be categorised as crimes of war for example cyberattacks on states. It poses a

challenge in determining whether it is or is not an armed conflict and whether IHL

applies. This is because it is an attack by one country hacking into the government

37
 system of another, it is supposed to be deemed as an international crime that just

might lead to a conflict. This is not provided for in any of the 1949 Conventions or the

Additional Protocols hence posing a legal and practical challenge in terms of

ensuring their use complies with existing IHL norms which is goes to show that

there needs to be reviews of the legislation regarding armed conflict. This is ensure

that all crimes are provided for.

5. Lack of consensus in the international community on whether or if IHL should be

revised to better reflect the 21st century warfare. This is because over the years there

has been development in terms of the technology, the types of weapons created .There

has also been notable changes in the nature of both civilian and military technologies

and attitudes towards military occupation. The means and methods of warfare has

developed hence posing as a challenge as the law is not able to keep up.

6. Non-compliance by state parties while an armed conflict is ongoing is a major

challenge. This is because the parties have ratified the relevant laws but adhering to

them is just but a theory. Civilians and combatants who are meant to be protected

during this period become victims of violence and abuse.

7. Lack of political will by the various stated thus leading to no cooperation in regulating

armed conflict. While several countries have cooperated and signed and ratified some

of the treaties concerning laws that stipulate conduct during warfare, some other

countries have yet to reach this point of consent. For war to regulate everywhere

regardless of the territory, the parties are required to have signed the laws so that

those vulnerable groups can be protected by the law. The law cannot protect those

whose country has not enforced the concerned law.

38
 This is also evident by countries not signing the Rome Statute hence those criminals

liable are punished by national courts and not the International Criminal Court.

8. State to value the welfare of their enemy over theirs is a hard task111. A state would in

normal circumstances think of their own soldier’s welfare before thinking of any

other. So when tasked with the duty of protecting another country’s at the expense of

their own, they are very reluctant. This is because for parties, their soldiers form a

higher preference than those of the opposing/ attacking party. This leads to states not

adhering to the rules of IHL and ensuring the protection of the protected groups but

merely allowing for their interests to be a key factor in it all.

Importance of separation of Jus ad bellum and Jus in bello

There are two schools of thought regarding how to approach Jus ad Bellum and Jus in Bello,

namely separation and conflation. The main rationale for separation lies in the concept of the

moral equality of combatants. This means that regardless of who initiated the war, their

reasons -or lack thereof -for doing so, once an armed conflict begins, both parties are

considered equal. They are expected to treat the other party with humanity. This is not

necessarily because they merit such treatment. It is out of respect for their dignity as humans.

This position is supported by the cases against Fofana and Kondewa at the Special Court for

Sierra Leone.112 The trial court had convicted the defendants of brutal crimes, however in was

111 Professor Robert D Sloane, ‘Three problems with the “As-if” thesis of proportionality’
(Boston University International Law Journal, 24th Sept 2014)
<https://www.bu.edu/ilj/2014/09/24/post-1/> accessed on 24/11/2016.
112Prof. Robert Sloane, ‘ The Cost of Conflation: Preserving the Dualism of Jus ad Bellum
and Jus in Bello in the Contemporary Law of War.’ (2009) 34:47 Yale Journal of
International Law 47 citing Prosecutor v. Fofana & Kondewa, (2007) SCSL-04-14-T,
Sentencing Judgement.
39
held to be a mitigating factor in sentencing that they had fought for a just cause i.e. to restore

a legitimately elected government. In the appeal it was held that this use of the just cause

theory in mitigation went against the basic principle of IHL requiring separation of Jus ad

Bellum and Jus in Bello. However, there is the conflation school of thought that subscribes to

the just war theory. In relation to IHL, this theory states that a party executing a just war, i.e.

the side that is in the right ,need not treat the other party, i.e. those that are in the wrong, with

humanity because they are undeserving. They are therefore not bound by Jus in Bello. This is

a position supported by the ICJ advisory opinion on nuclear weapons. Here the court stated

that;

the threat or use of nuclear weapons would generally be contrary to the rules

of international law applicable in armed conflict, and in particular the

principles and rules of humanitarian law, the Court could not conclude

definitively whether the threat or use of nuclear weapons would be lawful or

unlawful in an extreme circumstance of self-defence, in which the very

survival of a State would be at stake.113

While there are those who argue that this is the right approach, a seperationist approach has

traditionally been taken by IHL for various reasons which shall be spelt out.

1. Practically ,in war -like in any other disagreement between people -it is difficult to

know who is truly just. Each side is convinced that their way is the moral high ground

and that the other side is wrong. Objectively determining the just party, and granting

113 JHH Weiler and Abby Deshman, ‘Far Be It from Thee to Slay the Righteous with the
Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the
Distinction between Jus ad Bellum and Jus in Bello.’ (2013) 24:1 European Journal of
International Law 25 citing Legality of the Threat or Use of Nuclear Weapons (Advisory
Opinion) [1996] ICJ Rep 226, at para. 2(e).
40
 them the right to dispense with jus in bello in war, would pose an enormous

challenge. This is further complicated by the fact that at times none of the parties is

righteous as they have both committed one violation or the other. To avoid the

confusion that trying to determine right brings, it is easier to require all parties to

adhere to jus in bello rules.

2. The humanitarian goals of IHL transcend distinction between righteous and evil. This

is to say that even if we were able to objectively determine that one party is in the

wrong and the other in the right it would be of no consequence. The goals of IHL

espoused by the ICRC, which include good works, empathy and universal

humanitarianism114, are meant to preserve human dignity which is possessed by all

persons.

3. Jus in bello protects many classes of people including civilians, medical and religious

personnel among others. These persons cannot be held responsible for the failure of

their state to maintain peace. Even in a situation where a state is clearly the aggressor

in a conflict this would not be an excuse to attack these persons who are probably

very far removed from the decision made by the state to attack. Similarly, soldiers in

an army are required to follow orders even if they disagree with them. While there are

provisions to exempt conscientious objectors (those that are opposed to participating

in war on a religious or ethical basis) from military service, not all applications are

accepted. There is a success rate of between 50% and 75%.115 This means that there

114 JHH Weiler and Abby Deshman, ‘Far Be It from Thee to Slay the Righteous with the
Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the
Distinction between Jus ad Bellum and Jus in Bello.’ (2013) 24:1 European Journal of
International Law 25.
115 Kathryn Schulz, ‘ The Ins and Outs of Filing for Conscientious Objector Status.’ (
Refusing to kill is not a crime, 26 Dec 2010) <www.refusingtokill.net/Civildisobedience/CO-
41
 are some people in the army that are forced to engage in warfare even if they are

morally or ethically opposed to that war or war in general. It would therefore be unfair

to attack them, especially when they are wounded or sick, on the basis that they are

participating in an unlawful war. Hence the prohibition of attacks on those that are

hors de combat. Attacks on soldiers are only acceptable when they pose a threat to

one’s military objectives and even then only proportionally to that threat. Therefore, a

soldier should not be killed when he can be captured.

4. As much as the rules of Jus in Bello are said not to be based on reciprocity, it is a fact

that this is one of the major factors motivating compliance with the law. In a situation

where one party is adjudged to be right and therefore to not be bound by Jus in Bello,

as some conflationists would prefer, it would be impossible to convince the other

party that they should still comply with the law. The result? Total war of the type seen

by Henry Dunant in the battle of Solferino. In order to avert such a situation and

ensure adherence to the dictates of Jus in Bello, it is important to assure both parties

that they are equally bound by the law.

JUS POST BELLUM

Traditionally, the law of armed conflict has been characterised by two limbs i.e. jus ad bellum
and jus in bello. However, recently, there have been talks on the need to revisit this point of
view in order to add a new category jus post bellum. This branch is expected to govern the
concept of justice after war and peace-making after conflict.116 With the inclusion of this third
limb, a complete circle of the theory of war will be achieved.

ProNCons.htm > accessed on 14/11/2016.

116 Carsten Stahn, ‘Jus ad bellum, jus in bello . . . jus post bellum? – Rethinking the
Conception of the Law of Armed Force’ (2007) 5:17 The European Journal of International
Law 921.
42
Brian Orend in his article ‘Justice after war’ lists several reasons for the need to fill the
glaring gap in war theory:

a) To allow unconstrained war termination is to allow the winner to enjoy the spoils of
war. This is dangerously permissive, as winners have been known to exact peace
terms that are draconian and vengeful. The Treaty of Versailles which ended World
War I is given as an example; Germany was forced to accept responsibility for
causing all the damage and loss which most felt that it was unfair.
b) Failure to regulate war termination may prolong fighting on the ground. Since there
are few assurances regarding the nature of settlement, belligerents will be tempted to
continue using force to maintain their position.
c) Allowing war termination to be determined without normative restraints leads to
inconsistency and confusion. According to him, it is strange that we try to regulate
only the beginning and middle phases of war and not include the end. Also, the lack
of established norms to guide the construction of peace treaties leads to ‘patchwork’
solutions which may not achieve anything.117
Jus post bellum therefore aims to capture certain post-war elements such as compensation,
rehabilitation, rights vindication and war crimes trials. With regard to compensation, certain
questions as to who should be financially responsible for damage and if so whether they pay
ought to be answered. This financial restitution is mainly for the purpose of reconstruction
after the war. The question of the amount of course would be relative to the nature and
severity of the damage. Further, what the Aggressor can be reasonably expected to pay
should be taken in account. The principle of proportionality may be applied here to ensure
fairness. Secondly, rehabilitation is necessary to ensure that war may not be resorted to in the
near future. This may involve disarmament and demilitarisation, human rights education,
police and judicial retraining and even deep structural transformation toward a peaceful
liberal democratic society.118

117 Brian Orend, ‘Justice after war’ (2002) 16:1 Ethics & International Affairs 43
<https://www.carnegiecouncil.org/publications/journal/16_1/articles/277.html/_res/
id=sa_File1/277_orend.pdf > accessed on 16th November 2016.
118 Ibid no. 21 .
43
Thirdly, war crimes trials have be undertaken in order to punish those who did not follow jus
in Bello and jus ad bellum. This need follows Walzer’s dictum: ‘There can be no justice in
war if there are not, ultimately, responsible men and women.’ 119 This also help to deter future
acts of aggression especially for heads of state who might assume that they would be awarded
immunities. They are also put on trial for instigating individuals to start aggressions against
other groups of people. An example would be the former prime minister of Rwanda who was
found guilty of war crimes and crimes against humanity in connection to the genocide of
1994. Finally, the settlement of the war should secure those basic rights whose violation
triggered the justified war. The vindication of those rights is necessary to ensure that those
groups do not feel the need to get into war again.

In conclusion, jus post bellum is a significant aspect of the theory of war that ought to be
included and practised most importantly to avoid future forms of conflict.

119 Michael Walzer, Just and Unjust Wars, (Basic Books 2007) 288 citing Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, (1996) ICJ Reports 66.
44
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50
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51
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52