The only true fragmentation in international law: Jus ad bellum and jus in bello
The only true fragmentation in international law: Jus ad bellum and jus in bello
Author: Ilias Bantekas
ISSN: 2521-2621
Affiliations: Professor of International Law, Hamad Bin Khalifa University (Qatar Foundation) and Adjunct Professor of Law, Georgetown University, Edmund A Walsh School of Foreign Service
Source: African Yearbook on International Humanitarian Law, 2022, p. 54 – 66
https://doi.org/10.47348/AYIH/2022/a4
Abstract
This article supports a very simple hypothesis, namely that the international law regulating recourse to armed force (jus ad bellum) is necessarily fragmented from the body of law regulating the conduct of hostilities (laws of war or jus in bello). This hypothesis is tested through a series of steps and deductions, all of which aptly justify the original hypothesis as a matter of reason, fundamental notions of justice and downright practicality. Ultimately, if international humanitarian law (IHL) is not uniformly applied to all sides of the conflict and its enforcement is dependent on which party is considered the aggressor, this body of law is effectively of no use, and we are drawn back to very dark times that this author would like to think have long been overcome. If these two bodies of law were not fragmented by the very conduct of states or by reference to the respective treaties, we would be forced to spell it out loud in order for both fields of regulation to be meaningful and mutually reinforcing.
