Journal Article

Far Be It from Thee to Slay the Righteous with the Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the Distinction between Jus ad Bellum and Jus in Bello

JHH Weiler and Abby Deshman

in European Journal of International Law

Published on behalf of The EJIL

Volume 24, issue 1, pages 25-61
Published in print February 2013 | ISSN: 0938-5428
Published online April 2013 | e-ISSN: 1464-3596 | DOI: https://dx.doi.org/10.1093/ejil/cht018
Far Be It from Thee to Slay the Righteous with the Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the Distinction between Jus ad Bellum and  Jus in Bello

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The question whether jus in bello and jus ad bellum should interact, or remain in hermet ically sealed spheres, has generated a voluminous and vociferous body of contemporary literature. The goal of this article is to take a step back from the particulars of the arguments and examine the shape and direction of the debate itself. We trace how the debate has evolved in response to political culture and sensibilities, focusing in on paradigmatic points throughout the 20th century. In each era the discussion on how these two areas of law should, or should not, intersect arises. And contrary to what might be implied by the recent debate where both sides often rely on ‘fundamental principles’, the dialogue regarding the relationship between jus in bello and jus ad bellum is not a static argument. The discourse is dynamic and politically contextualized – impacted by, and impacting upon, the external controversies of the day. Certain consistent threads have guided the debate – first order political interests, institutional considerations, and consequences, and a legal and sociological conservativism run throughout. Distinct visions and assessments of the morality of war and who is to blame for its evils and how best to work towards peace also push and pull the flow of debate. Frequently, the positions on jus in bello and jus ad bellum serve as proxies for deeper or shallower courses of discussion. And although the contemporary discourse is more fractured, these same influences are discernable today.

Journal Article.  20623 words. 

Subjects: Public International Law

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