Human Rights: Between Idealism and Realism, Third Edition
Contents
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I General Considerations I General Considerations
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A. Jus ad bellum, jus in bello A. Jus ad bellum, jus in bello
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B. Non-discrimination B. Non-discrimination
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II Brief Historical Survey II Brief Historical Survey
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A. Before World War I A. Before World War I
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B. Between the two World Wars B. Between the two World Wars
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C. After World War II C. After World War II
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III Prohibition of Specific Weapons III Prohibition of Specific Weapons
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IV Legal Sources IV Legal Sources
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A. Necessity of humanitarian law? A. Necessity of humanitarian law?
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B. Legal sources B. Legal sources
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1. Treaties 1. Treaties
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2. Custom 2. Custom
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V Main Issues V Main Issues
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A. War and armed conflict A. War and armed conflict
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B. Non-international armed conflict B. Non-international armed conflict
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C. Distinction between combatants and civilians C. Distinction between combatants and civilians
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D. Distinction between military targets and civilian objects D. Distinction between military targets and civilian objects
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E. Threshold of armed conflict E. Threshold of armed conflict
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F. Applicability of common Article 3 F. Applicability of common Article 3
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G. Declaration on minimum humanitarian standards G. Declaration on minimum humanitarian standards
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H. Lacunae in the legal regime of non-international armed conflict H. Lacunae in the legal regime of non-international armed conflict
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VI Ensuring Observance of, and Respect for, Humanitarian Law VI Ensuring Observance of, and Respect for, Humanitarian Law
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A. A culture of compliance A. A culture of compliance
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B. Monitoring B. Monitoring
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C. Countermeasures C. Countermeasures
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D. State responsibility D. State responsibility
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16 Mitigating the Effects of Armed Conflict: Humanitarian Law
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Published:01 September 2014
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General Considerations
Jus ad bellum, jus in bello
In a community of nations remaining attached to basic concepts of peace and human rights, war, if and when it occurs, cannot simply be regarded as a fact of life which lasts as long as it lasts with whatever consequences it may entail. In the same way as great efforts have been made to ban and effectively eradicate war, it should be a supreme objective of the international community to reduce as far as possible the detrimental and often atrocious corollaries of armed conflict. With this objective in mind, two strands of rules have been developed: jus ad bellum governs the lawfulness of resort to force, and jus in bello connotes the rules applying to the actual conduct of warfare. There is no absolute watertight division between the two branches. The right of self-defence, for instance, which pertains to jus ad bellum, is placed under the requirements of necessity and proportionality. Actions of self-defence may not be extended beyond what is necessary and appropriate for the attainment of the aim pursued, namely cessation of an armed attack.1 If in a given situation this borderline is crossed, the action concerned may also become unlawful under jus in bello if, for instance, indiscriminate attacks are carried out against the civilian population.2 In general, however, jus in bello must be distinguished from jus ad bellum.3
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