The meaning of ‘ius in bello’

June 22, 2012

By Jasper Doomen, Lecturer in Law, Leiden University

Enforcement is a crucial aspect of legislation. Once international legislation is inquired with this in mind, one is faced with several difficulties. One particular issue that merits attention is the meaning of the rules that parties are supposed to take into consideration in a state of war.

A traditional way to characterize the norms that govern the laws of war is that between ‘ius ad bellum’ (the right to engage in war) and ‘ius inbello’ (the law of armed conflict, i.e., the right which applies in a state of war). At first sight, these notions may seem unproblematic, at least semantically, as they would simply seem to refer to the rules that determine, respectively, the circumstances under which one is absolved from the accusation of belligerence and those that stipulate how one should act once a state of war is a reality. Serious problems emerge, however, once the status of these rules is critically examined.

In qualifying certain acts as conflicting with ‘ius inbello’, one wonders to what such a phrase amounts. ‘Ius in bello’ implies the possibility to judge whether the rules in a state of war have actually been observed, which, in turn, implies the existence of an authority that is to act as the court of justice. The problems with such a stance are twofold.

First, this state of affairs conflicts with the nature of war, which is, by definition, characterized by the absence of rules, or at least the nonobservance of rules if they are presumed to exist. This may appear to evidence a dogmatic stance on my part with regard to the meaning of ‘war’: why should war by definition be characterized by a lack of rules? I would argue that the observance of (enforceable) rules to mitigate or even resolve the conflict is a sign of the war already being at an end. Second, it implies that the transgressor acts upon the possibility that at some point in the future, the war will end, whereupon the defeated party, presuming that this is also the party that has failed to act in accordance with the rules, will be judged. (For simplicity, I hypothesize a two-party conflict. Several parties may be involved, and various conflicts may constitute a war, but that does not affect the present line of reasoning.)

After all, the transgressor will not be judged before the war will have ended. This follows from the fact that a judgment would make no sense prior to its conclusion; a minor additional reason would be that it would not at that stage be clear whether all relevant acts that are to be judged can be brought to the fore since additional perpetrations may take place in the course of the, ex hypothesi, ongoing war. Once the war is over, a victorious transgressor will still not be judged unless the conflict is limited to a relatively small territory and/or a small number of people, in which case one or more outside parties may serve as judge(s), which is predicated on the power of the party that is to be judged being limited to such a degree that a judgment against it will have an actual result. The issue of enforceability is manifest at this point. Whether the appointment of judges that must take an objective stance, exemplified by the International Criminal Court, may be said to result in a de facto vicarious ruling by the victorious (rule-observing) party, amounting to a veritable ‘Siegerjustiz’ (victor’s justice), is an issue that is worth mentioning here, but it is not inextricably linked to the matter at hand.

In any event, ‘ius post bellum’ (the law after a war) is a more appropriate phrase to characterize the situation than ‘ius inbello’. The Geneva Conventions, for example, only make sense if (1) parties observing the rules take into account the possibility that they will lose the war (thus already contemplating the ‘post bellum’ reality, and incorporating it into their considerations), while (2) there is an organization with enough power to – eventually – enforce the rules laid down therein (which constitutes the ‘ius’ part of the phrase, demonstrating, incidentally, the difficulties involved in enforceability at the international level).

After all, parties may proceed from the presumption that they will be victorious, or that the war will never end, the – temporary – cessation of violent activities being a perspective taken into consideration, but a (stable) state of peace not being taken a viable outcome (cf. Hobbes’s distinction between war and battle (Th. Hobbes, Leviathan, Chapter 13 (Ed. R. Tuck. Cambridge: Cambridge University Press, 2007 [1651]))). In that case, the ‘ius’ either (1) cannot have concrete effects (the victorious party not acknowledging an international court of justice, which is a relevant factor if it cannot enforce its verdict), or (2) can never be taken to refer to a real state of affairs (since the state of war, ex hypothesi, does not reach an end).

On the basis of the foregoing, I venture to suggest that ‘ius inbello’ cannot be maintained as it involves a contradiction in terms, and must be replaced by ‘ius post bellum’. Basically the same analysis applies to ‘ius ad bellum’, since here, too, acts can only be assessed after the state of war has come to a conclusion. The only – slight – difference with ‘ius in bello’ might be taken to consist in the fact that parties that appeal to ‘ius ad bellum’ can be judged without a state of war ever actually being reached in the first place, namely, in the situation in which they conform to the rules because they acknowledge the rules’ legitimacy, on that basis desisting from any belligerent acts. Even in this case, however, the question arises whether they do not simply abstain from such acts on the basis of a cost-benefit analysis (or, if this sounds too cynical, an analysis that is not, in any event, based on ‘moral’ considerations), so that even the existence of rules would not be a relevant given.

In the most consistent interpretation, then, ‘ius in bello’ and ‘ius ad bellum’ are dissolved into ‘ius post bellum’, the latter remaining the only potentially viable notion. I say ‘potentially viable’ since its presence still points to the existence of ‘international law’ as a significant domain of law. I do not presume to be able to address all relevant aspects of this issue here, as the room to do so to the extent the subject-matter would require does not suffice. This is not my version of the escape notoriously used by Fermat (commenting on his last theorem), as I have dealt with the topic in some detail elsewhere (The Meaning of ‘International Law’. The International Lawyer 45(3), pp. 881-893), but merely a reflection of my awareness that limitations to discussions such as the present one are necessary, so as not to tax the reader (presuming, hopefully not inappositely, that this point has not already been reached). Suffice it to say that the absence of enforceable rules does not contribute to the convincingness of the position of those that plead that international legislation should be considered a counterpart of legislation at the national level.

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