Jus ad bellum and Jus in bello

As the title suggests, this article will discuss the concept of “Jus ad bellum” and “Jus in bello” or the right to war or right in war, in relation to the Islamic State of Iraq and Syria (ISIS) terrorism crisis. The ISIS, which is considered by some as a break-away group under the Al-Qaeda group previously led by the infamous Osama bin Laden, have spread terror across the world and claimed some innocent lives. They claimed that their fight is anchored upon religion, albeit they are doing this for the God that they believed in. In this regard, tensions in the Middle East have gone to red alert level and every country in the world have slowly felt the remorse of the continuous brutal killings and the fear of an impending all-out war.

Under international law, there are two distinct ways of looking at war—the reasons you fight and how you fight. In theory, it is possible to break all the rules while fighting a just war or to be engaged in an unjust war while adhering to the laws of armed conflict. For this reason, the two branches of law are completely independent of one another.[1]

Jus ad bellum is the title given to the branch of law that defines the legitimate reasons a state may engage in war and focuses on certain criteria that render a war just. Jus in bello, by contrast, is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun.[2]

As a general matter, the U.N. Charter forbids the use of force except in very narrow circumstances. [3] Specifically, the Charter makes an exception to this general prohibition by guaranteeing States “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”[4] The International Court of Justice (ICJ) has also recognized that a State’s right to self-defense is inherent under customary international law,[5] and that States that have been victims of an armed attack may respond with force that is “proportional to the armed attack and necessary to respond to it.” [6] In the Nicaragua case,  the ICJ drew a distinction between “mere frontier incidents” and “grave forms of the use of force,” noting that only the latter trigger a State’s right to use self-defensive force under the Charter. 

Later, in the Oil Platforms case, the Court noted that “the mining of a single military vessel might be sufficient to bring into play the ‘inherent right of self-defense.’” Although the Court ultimately found the evidence insufficient to conclude that Iran actually carried out the bombing in that case, the majority opinion made it clear that an individual act of violence is sufficient to constitute an armed attack.

Furthermore, for a country or territory to have comfort that they did not violate any principles of international law in fighting the ISIS, they must ensure that they meet the five basic criteria under the just war theory before waging war, to wit:

1.  War must be declared by the right authority (which is the state)
2.   It is declared in pursuit of a just cause,
3.  Such war is a proportionate response,
4.   It is used as a last resort, and
5.   It is used with probability of success.

Considering that the lives of its people are now at stake, all of the states within and around the Levant-Jordan-Egypt area and the neighboring territories such as Saudi Arabia, the North Africa and Central European countries should now start deliberating whether they qualify with the foregoing criteria for it to conduct counter-offensive actions against the ISIS before the terrorists can cross their borders. These questions, however, should also apply to distant countries like the Philippines who are also frequently attacked by insurgencies, riots or civil unrest.

Needless to say, it is good to know the aforementioned principles and criteria, however, a citizen should hope that its country will never have a chance to evaluate and apply the said principle as no person with sound mind favors war or conflicts.

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[1] Taken from net at http://www.crimesofwar.org/a-z-guide/jus-ad-bellum-jus-in-bello/#sthash.7L1ECZRO.dpuf

[2] Ibid

[3] U.N. CHARTER art. 2, para. 4.

[4] Id. Art. 51

[5] The Oil Platforms (Iran v. U.S.) Case, 2003 I.C.J. 189, para. 57 (Nov. 6) [hereinafter Oil Platforms].

[6] Nicaragua, supra note 14, at 94.