Can the ICC consider questions on jus ad bellum in a war crimes trial?

AuthorHarris, Thomas S.
PositionInternational Criminal Court - Benjamin B. Ferencz Essay Competition Honorable Mention

War has forever been considered the utmost necessary evil. Nevertheless, international law has for some time sought to limit the right to wage war (jus ad bellum), as well as the means and methods employed amid war (jus in bello). Although these two branches of law now share humanitarian purposes--the prevention of war and its effects--they have generally been kept separate throughout history. However, confronted with widespread violations of jus in bello, resulting in appalling humanitarian disasters, some have suggested amending their relationship. This was notably sought at the Nuremberg Trials, where prosecutors failed to contend that jus in bello was inapplicable due to the illegal use of force by Germany. More recently, calls are being made to grant the "legitimate" belligerent more leeway in their application of jus in bello when responding to terrorism and the increasing use of lawfare (abuse of jus in bello to achieve strategic military or political ends). The ICC, as the only permanent criminal court with potentially worldwide jurisdiction, would be best suited to reconsider the relationship between jus ad bellum and jus in bello, potentially discriminating against the illegal belligerent in its assessment of proportionality in attack. In response to these calls for "aggressor discrimination, " this article will demonstrate that the ICC is prohibited from considering jus ad bellum in a war crimes trial, therefore precluding such discrimination. Suggestions of "fighting fire with fire" ignore the very principles and rationale of the two branches of law and put innocent civilians at risk. Lowering the humanitarian bar can surely not be the answer to ultimate humanitarian concerns.

CONTENTS I. INTRODUCTION II. JUS AD BELLUM AND JUS IN BELLO: TWO DISTINCT CONCEPTS A. Jus ad helium (right to war) 1. History 2. Proportionality and necessity under jus ad bellum 3. Violation: aggression B. Jus in hello (law in waging war) 1. History 2. Principles of LOAC 3. Proportionality and necessity under jus in hello 4. Violation: War Crimes C. Distinguishing jus ad bellum and jus in bello 1. Historical distinction 2. Distinction under LOAC III. CAN THE ICC CONSIDER QUESTIONS ON JUS AD BELLUM IN A WAR CRIMES TRIAL? A. Introduction B. Proportionality at the ICC C. Jurisdiction over aggression D. Principles of individual criminal responsibility E. Principles of LOAC requiring separation between jus ad bellum and jus in bello F. Arguments in favour of aggressor bias G. Case Law IV. CONCLUSION I. INTRODUCTION

Jus ad bellum (right to war) and jus in bello (law in warfare) are two distinct branches of international law that govern two distinct situations: the initial use of armed force and individual military operations within an armed conflict, respectively. Although they are both motivated by humanity, they do have different aims and have been largely kept separate throughout the history of the law of armed conflict (LOAC). (1) While jus ad bellum tries to abolish war altogether, jus in bello tries to minimise suffering and destruction, recognizing that war remains an unfortunate reality.

Recently, however, there are increasing calls from certain jurists to allow jus ad bellum to influence jus in bello. (2) They contend that, in the face of the increasing practice of 'lawfare' (abuse of jus in hello to achieve strategic military or political ends) (3) and intensifying disregard of LOAC, the legality of the use of force should determine the margin of discretion granted to a belligerent in relation to proportionality in attack. The result grants the legal belligerent a wider margin of discretion or the illegal belligerent a more limited margin of discretion. This concept shall be referred to as "aggressor discrimination."

The International Criminal Court (ICC) is the only permanent international criminal court with potentially universal jurisdiction that has jurisdiction over war crimes. (4) The ICC is, therefore, at the very heart of the debate around the relationship between jus ad helium and jus in hello. Starting with the belief that the two concepts should be kept separate, I set out to answer the question: Can the ICC consider questions on jus ad helium in a war crimes trial?

Before answering this question, I will first consider the definition and historical development of jus ad helium and jus in hello separately, as well as their historical relationship, as this will reveal the rationale behind the two branches of law (Section II). We will then analyse proportionality at the ICC (Section III.B), the ICC's jurisdiction over aggression (Section III.C), principles of individual criminal responsibility (Section III.D), principles of LOAC (Section III.E), and case law (Section III.F), to determine the answer in conclusion (Section IV).

  1. JUS AD BELLUM AND JUS IN BELLO: TWO DISTINCT CONCEPTS

    1. Jus ad helium (right to war)

      1. History

        Just war (500 BC-1300)

        The first recorded allusions to a right to wage war date back to classical times. Remarks by theorists including Thucydides, Aristotle, and Plato did place war within the broader concept of natural law but did not go beyond the occasional observation. (5)

        The Romans would go on to establish a formal link between law and war, requiring approval from their fetials (priests) before going to war. This developed into the formal concept of jus bellum--just war--which would be formalized following the expansion of Christianity within the Roman Empire. It was then significantly developed during the Middle Ages. (6) Notwithstanding the many interpretations and evolutions it underwent over this time, the overarching theory was that war was a punishment sanctioned and determined by God in response to wrongdoing. Little was said of the means of waging war and they were generally assumed to be unlimited so far as the war was just. (7)

        Grotius (1300-1900)

        During the Middle Ages, it became apparent that the establishment of a unified Christian republic was unlikely, as the former Roman Empire split into independent political states. This raised the issue of determining the just cause of a war when two or more of these unfamiliar entities fought one another; no longer were they fighting on behalf of the Emperor and axiomatically on behalf of God. (8) The vacuum left by the fall of the Empire was to be filled by positive law which rendered the concept of just war obscure. At this time of great political and religious turmoil, many suggested competing theories of just war; the main point of contention being who would be the authority. It became somewhat tacitly agreed that, lacking a superior authority, any ruler had the right to wage war, as long as he perceived his cause to be just. (9)

        The apparent shift towards war as a transnational rather than theocratic issue was stymied by Grotius, considered by some as the "father of international law," (10) who suggested transposing the fundamental principles of just war theory into international law. The problem for Grotius was the lack of an arbiter; his solution would go no further than to suggest a list of just causes and urge going to war only when ultimately necessary. (11) Despite its glaring flaws, this did represent the first major step towards international codification of jus ad bellum.

        Grotius' theories were evidently inspired by his experience of the Eighty Years' War (Dutch Revolt) followed by the Thirty Years' War. Although he would not see the end of the latter, his writings would be hugely influential in the formulation of the treaties which constituted the Peace of Westphalia. (12) Accordingly, Grotius' suggestions would determine several aspects of the new-fangled principle of Westphalian sovereignty which dominated international politics and law until the twentieth century. States had complete freedom to go to war with one another if they so chose and Grotius' principles found expression in the treaties concluded between states. These treaties came to be considered the Law of Nations. (13)

        Covenant of the League of Nations (1900-1945)

        As Westphalian sovereignty developed, it became rather normal to go to war for the slightest of injuries. It would only be towards the end of the nineteenth century, with advances in technology allowing for immense destruction and suffering coupled with a rise in radical nationalism, that the idea of limiting jus ad bellum would return to the fore. (14) Following the "Great War," the League of Nations was established to avoid repetition of such an event and its Covenant contained provisions either limiting or at times outright prohibiting war. (15) With much discord and little support from major powers, the League failed and Europe prepared itself to host the most widespread and deadliest war in history. (16) Amidst the barbaric horrors of World War Two, there was little point in considering principles of jus ad bellum.

        UN Charter framework (1945-Present)

        As the dust settled around the globe and the true extent of annihilation became clear, the squabbles surrounding the Covenant of the League of Nations were soon forgotten and fifty-one nations came together to agree on the prohibition of the unilateral use of force. (17) Article 2(4) of the Charter of the United Nations can be considered as the best definition of jus ad bellum even today and provides that, "[a]ll 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." (18)

        This must be read in conjunction with Article 51 and the powers provided for by Articles 39-50 of the Charter, which allow for the use of force in self-defence or following a Chapter VII resolution to that effect, respectively.

      2. Proportionality and necessity under jus ad bellum

        Although the Charter does not define the standards of proportionality or necessity in the exercise of jus...

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