The Humanization of Jus Ad Bellum: Prospects and Perils

30 Pages Posted: 17 Jan 2020

See all articles by Eliav Lieblich

Eliav Lieblich

Tel Aviv University - Buchmann Faculty of Law

Date Written: January 1, 2020

Abstract

Can violations of jus ad bellum also violate the right to life under international human rights law (IHRL), even in cases where the laws of armed conflict are otherwise followed? In 2018's General Comment 36 (GC 36) the Human Rights Committee (HRC) answered this question, for the first time, in the affirmative. This article uses the HRC's position as a platform for a long needed discussion on the theoretical underpinnings, and implications, of a possible human rights law on the resort to force.

This article identifies three pillars in GC 36’s position, which subject traditional questions of jus ad bellum to IHRL considerations: First, the view that aggression is not only a violation of jus ad bellum, but also an ipso facto violation of the right to life; second, that states bear the "responsibility" to oppose aggression; and third, that failing to reasonably attempt to resolve disputes peacefully could amount to a violation of the duty to ensure the right to life.

The article analyzes these pillars doctrinally, and then moves to discuss the theoretical commitments required to accept each of them, as well as their costs. Namely, they all require breaking with the traditional view that jus ad bellum is strictly an inter-state issue. Although, as the paper argues, this development is a welcomed one, the humanization of jus ad bellum through human rights law carries risks that should not be overlooked: chiefly, the securitization of human rights and the depoliticization of war. The prospects and perils of the humanization of jus ad bellum, as this article demonstrates, open a new area of theoretical inquiry and legal possibilities.

Keywords: International Law, Use of Force, International Human Rights Law, International Humanitarian Law, Just War, Laws of Armed Conflict, Jus ad Bellum

Suggested Citation

Lieblich, Eliav, The Humanization of Jus Ad Bellum: Prospects and Perils (January 1, 2020). Available at SSRN: https://ssrn.com/abstract=3512378 or http://dx.doi.org/10.2139/ssrn.3512378

Eliav Lieblich (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, IL
Israel

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