The Humanization of Jus Ad Bellum: Prospects and Perils

Abstract

In its recent General Comment 36 (GC 36) the Human Rights Committee (HRC) engaged for the first time, in a substantial manner, with the relations between the law on the use of force (jus ad bellum) and the right to life. This article uses the HRC's position on these relations 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 between states.

This article identifies and conceptualizes 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 that the killings it entails are ipso facto violations of the right to life – even in cases where these killings would be lawful under the laws of armed conflict (jus in bello). Second, that states bear the ‘responsibility’ to oppose aggression as a matter of human rights; and third, that a state’s failure to reasonably attempt to resolve disputes peacefully could amount to a violation of the duty to ensure the right to life of its people.

The article analyses 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 article argues, this development is based on sound ethical premises, 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