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.
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
jus in bello, cont.
six rules of external jus in bello
1. 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
jus in bello, cont.
2. Discrimination and NonCombatant 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
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?
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.
Should suspected terrorists be given
same rights as traditional POWs?
- treatment governed by Geneva
Conventions
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
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.
jus post bellum
regulation of the end of war
proposed principles for jus post bellum
no set rules yet
1. 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
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
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
Lt. William Calley – only American
soldier convicted for war crimes at My
Lai massacre
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
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?
jus post bellum, cont.
Should the victor help the vanquished with reconstruction?
Dresden, 1945
Dresden today
Hiroshima, 1945
Hiroshima today
The End