jus in bello

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jus in bello rules during war

• right conduct in the midst of battle
• responsibility for jus in bello falls to the
  military commanders, officers, and soldiers who
  create and execute the war policy
• monitored by International Criminal Court
  (created by the 1998 Treaty of Rome)
• 2 types ? External jus in bello concerns the
  rules a state should observe regarding the enemy
  and its armed forces

n.b. the United States is not a part of the I.C.C.
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jus in bello, cont.

• Internal jus in bello concerns the rules a state
  must follow in connection with its own people
  during war
• must respect the human rights of its own
  citizens as best it can during the crisis
• issues include conscription, press censorship,
  civil liberties v. state security, elections
  postponement/cancelation, conscientious objectors

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jus in bello, cont.
six rules of external jus in bello

• Obey all international laws on weapons
  prohibition
• chemical and biological weapons are banned by
  treaties
• nuclear weapons are not prohibited but a huge
  taboo is attached to its use

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jus in bello, cont.

• 2. Discrimination and Non-Combatant Immunity
• soldiers must discriminate between the civilian
  population and military, political, and
  industrial targets
• some collateral damage is excusable
• wrong to take deliberate aim at civilian targets
• since 1900, most wars have featured larger
  civilian, than military, casualties

Dresden, February, 1945 Est. civilian death
24,000 to 40,000

• reason why this rule is the most frequently and
  stridently codified rule in all the laws of armed
  conflict

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jus in bello, cont.
We saw terrible things cremated adults shrunk
to the size of small children, pieces of arms and
legs, dead people, whole families burnt to death,
burning people ran to and fro, burnt coaches
filled with civilian refugees, dead rescuers and
soldiers, many were calling and looking for their
children and families, and fire everywhere,
everywhere fire, and all the time the hot wind of
the firestorm threw people back into the burning
houses they were trying to escape from. I cannot
forget these terrible details. I can never forget
them. - Lothar Metzger, survivor of Dresden
The Nazi Holocaust was among the most evil
genocides in history. But the Allies firebombing
of Dresden and nuclear destruction of Hiroshima
and Nagasaki were also war crimes... We are all
capable of evil and must be restrained by law
from committing it. - Dr. Gregory Stanton,
president of Genocide Watch
Were the bombings of Dresden, Tokyo, Hiroshima,
and Nagasaki war crimes?
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jus in bello, cont.

• 3. Proportionality
• must use restraint in using force
• weapons of mass destruction are usually out of
  proportion to achieve appropriate end

4. Benevolent quarantine for prisoners of war
(POWs) - once soldier surrenders, he is no longer
engaged in harm - wrong to target them with
death, starvation, rape, torture, medical
experimentation, etc. - treatment governed by
Geneva Conventions
Should suspected terrorists be given same rights
as traditional POWs?
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jus in bello, cont.

• 5. No Mala in Se (Evil in itself)
• may not use weapons or methods which are evil
  in themselves
• include mass rape campaigns genocide or ethnic
  cleansing treachery (like disguising soldiers to
  look like the Red Cross) forcing captured
  soldiers to fight against their own side and
  biological or chemical weapons

6. No reprisals - no retaliation of violations
of rules of war ? if they do something evil does
not mean we can do something evil
Stacked skulls during Cambodian Genocide
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jus post bellum rules regarding the termination
of war
Your Turn! You will be divided into
groups Discuss what issues should be addressed at
conclusion of war Develop 5-7 rules governing the
termination of war Issues may include prisoners,
war criminals, compensation, etc.
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jus post bellum regulation of the end of war
proposed principles for jus post bellum no set
rules yet

• Proportionality and Publicity
• - peace settlement should be measured and
  reasonable, as well as publicly proclaimed

2. Rights Vindication - secure the basic rights
whose violation triggered the justified war -
rights include human rights to life and liberty
and community entitlements to territory and
sovereignty
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jus post bellum, cont.

• 3. Discrimination
• distinguish between the leaders, the soldiers,
  and the civilians in the defeated country
• civilians are entitled to reasonable immunity
  from punitive post-war measures

Hermann Goering at Nuremberg
4. Punishment of war criminals of defeated -
leaders of the regime, in particular, should face
fair and public international trials for war
crimes
Saddam Hussein at trial in Baghdad
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jus post bellum, cont.

• 5. Punishment of war criminals of the victor
• soldiers, from all sides to the conflict, must
  be held accountable to investigation and possible
  trial

6. Compensation - financial restitution may be
mandated, subject to both proportionality and
discrimination - post-war tax on civilians is
not impermissible - enough resources left so
that the defeated country can begin its own
reconstruction
Lt. William Calley only American soldier
convicted for war crimes at My Lai massacre
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jus post bellum, cont.

• 7. Rehabilitation
• reform institutions in an aggressor regime
• may involve demilitarization and disarmament
  police and judicial re-training human rights
  education deep structural transformation towards
  a just society governed by a legitimate regime
• most controversial aspect of jus post bellum

Iraqi Parliament
Does the victor have the right to impose its
system of governing onto the vanquished?
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jus post bellum, cont.
Should the victor help the vanquished with
reconstruction?
Dresden, 1945 Dresden today Hiroshima,
1945 Hiroshima today
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The End