XII. Discussion-Jus in Bello

• Pages: 247

The Overlap Between Jus ad Bellum and Jus in Bello

Yoram Dinstein The jus as bellum and the jus in bello are two distinct bodies of law, and there is no overlap between them. First of all, the aggressor (pursuant to the jus ad bellum) may conduct hostilities in an impeccable way from the standpoint of the jus in bello, and the state resorting to self-defense (under the jus ad bellum) may conduct hostilities in a manner incompatible with the jus in bello. True, sometimes the same party is held accountable for flagrant aggression (under the jus ad bellum) and for the most horrendous war crimes (in violation of the jus in bello). The paradigmatic case is the Nazi record in World War II. But even here, let us not forget that the Nazis were not the only ones who disregarded the jus in bello. The Soviet march to Berlin in 1945 was regrettably accompanied by hundreds of thousands of cases of rape of German women.1 These grave breaches of the jus in bello do not diminish one iota from the fact that it was Germany that invaded the USSR in Operation BARBAROSSA in June 1941.

Consequently, responsibility for the war of aggression (in conformity with the jus ad bellum) was incurred exclusively by the Nazis.

Secondly, the issue of proportionality-which is of consequence both in the jus ad bellum and in the jus in bello-has a totally different meaning in each body of law. In the context of the jus in bello, proportionality denotes that collateral damage to civilians must not be excessive compared to the military 1. ANTHONY BEEVOR, THE FALL OF BERLIN, 1945 (2002) advantage anticipated in the attack. This requires a balancing act between the expected casualties among combatants and civilians. Insofar as the jus ad bellum is concerned, there is also a balancing act between casualties sustained in an armed attack and in a defensive armed reprisal carried out in response.

However, if we are talking about war of self-defense in response to an armed attack of a critical nature, no such balance is required. The best example is that of Pearl Harbor and the Pacific War. The Japanese attack of 7 December 1941 was of critical significance, since it altered the entire strategic situation in the Pacific. Hence, it justified the American declaration of war in selfdefense. As we all know, by the time the Pacific War was over, there was no proportion between the number of American casualties sustained in Pearl Harbor (or for that matter thereafter) and the countless Japanese losses throughout, the war and especially towards the end (when Japanese cities were pulverized by both conventional and unconventional weapons). The issue of proportionality in losses and counter-losses was irrelevant under the jus ad bellum. Once the Japanese attack in Pearl Harbor justified a war of self-defense on the part of the United States, that war could be fought-as it...