The Facilitative Function of Jus in Bello

30 European Journal of International Law 321 (2019)

Posted: 5 Mar 2019 Last revised: 26 May 2019

See all articles by Eliav Lieblich

Eliav Lieblich

Tel Aviv University - Buchmann Faculty of Law

Date Written: February 14, 2019

Abstract

In a recent book, Adil Ahmad Haque attempts to reconcile between jus in bello and ‘deep morality,’ by constructing international humanitarian law (IHL) as a prohibitive system, the constitutive aim of which is non-consequentialist: to ‘serve’ combatants by providing them with rules that if followed would allow them to better conform to their moral obligations. After situating Haque’s approach within the current debate between traditional and revisionist just war theorists, this review essay asks whether constructing IHL as a prohibitive set of norms is indeed sufficient to reconcile it with morality. By utilizing insights from legal realism, I argue that when determining whether law prohibits or permits, it is not sufficient to analyse pure legal concepts but, rather, we have to ask how law functions. This analysis reveals that IHL can be facilitative of action – meaning, of war – even if it is construed as formally prohibitive. This, in turn, calls for two conclusions: on the ethical level, when considering the morality of IHL, its facilitative function should be taken into account. On the legal level, recognizing the facilitative nature of IHL might assist us in answering key unresolved questions – namely, whether the material, spatial, and temporal thresholds for the application of IHL should be high or low.

Keywords: International Law; International Humanitarian Law; Law of Armed Conflict; Just War

Suggested Citation

Lieblich, Eliav, The Facilitative Function of Jus in Bello (February 14, 2019). 30 European Journal of International Law 321 (2019), Available at SSRN: https://ssrn.com/abstract=3334526 or http://dx.doi.org/10.2139/ssrn.3334526

Eliav Lieblich (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, IL
Israel

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
698
PlumX Metrics