The Quest for an Internal Jus Ad Bellum: International Law’s Missing Link, Mere Distraction or Pandora’s Box?
Forthcoming, Necessity and Proportionality in International Peace and Security Law (Lieber Series Vol. 4, Claus Kress & Robert Lawless eds., OUP 2019)
34 Pages Posted: 28 Jan 2019
Date Written: January 15, 2019
In spite of the contemporary prevalence of non-international armed conflicts, it is generally accepted that there is currently no ‘internal’ jus ad bellum, equivalent to the ‘external’ jus ad bellum governing inter-State recourse to force. Put simply, international law is ‘neutral’ towards rebellion. It neither permits, nor prohibits rebels from taking up arms against the government. Conversely, it accepts that States deploy their security apparatus to quell an uprising. In recent years, this status quo has been challenged by several scholars defending the need for an ad bellum regime for internal uses of force. The present papers revisits these proposals. The aim is to focus on the practical relevance and workability of these models, rather than their theoretical underpinning. Special consideration is given to the relevance of the criteria of necessity and proportionality in this context. The first part of this paper takes a closer look at government use of force against rebels within the State’s territory. The second part of the paper deals with internal use of force against the State authorities. The concluding section of the paper explores the links between the proposed internal jus ad bellum, on the one hand, and the concept of recognition of belligerency and third-State intervention in NIACs, on the other hand.
Keywords: internal jus ad bellum, rebellion, non-international armed conflict, belligerency, intervention
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