The danger of conflating just ad bellum and jus in bello.

Author:Mertus, Julie
Position:The Relationship Between Jus ad Bellum and Jus in Bello: Past, Present, Future - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

An old-fashioned red woman's bicycle, with a tan leather seat and wicker basket.

A half-packed black canvas suitcase and a silver Ipod.

The everyday stuff of war.

At the American War Museum today in Hanoi, Vietnam, the red women's bicycle is displayed proudly in a glass case to honor the elderly woman who rode a similar bike into an American compound. The bomb in her basket exploded, killing the old woman and four American GIs. (1)

The unpacked suitcase was of a man who just happened not to miss the plane that crashed into the World Trade Center. (2)

The everyday stuff of war.

The world in which we live in has changed in ways that greatly affect the willingness and ability of our leaders to use military force. This is a post-cold War, unipolar, nanotechnological, smart weaponed, information-saturated, market-driven time. We are witnessing a period of unparalleled U.S. exceptionalism, when the United States condemns other countries for violations of human rights norms and intervenes militarily in the name of human rights, while steadfastly refusing to apply the same human rights norms to its own conduct. (3) A time when the Attorney General of the United States publicly declares that certain well-accepted provisions of the Geneva Conventions regarding the treatment of prisoners have become "quaint." (4)

Quaint ... like the pile of instamatic cameras, rumpled cigarette boxes, and old shoes ... things left behind by captured U.S. army soldiers, a time capsule greeting visitors at the entrance to the American War Museum in Hanoi. I wonder what the American War Museum would look like in Afghanistan and Iraq. Would it display the bright orange jumpsuits of prisoners held in Guantanamo? Discarded U.S. Army-issued gas masks?

So much remains the same in the context of rapid change.

The traditional jus ad bellum and jus in bello framework was challenged in the 1990s by what could be identified as an emerging doctrine of humanitarian intervention. (5) That was just the beginning. The attacks of September 11, 2001, and the president's declaration of a war on an abstraction--terrorism--has threatened to turn the jus ad bellum and jus in bello framework on its head, reversing years of progress on mitigating the inhumanity of war.

The critics of the traditional jus ad bellum and jus in bello framework contend that the world in which these doctrines operate has changed dramatically. They have a point. Our normative argument about the practice of modern...

To continue reading