The Right to Life and the Jus ad Bellum: Belligerent Equality and the Duty to Prosecute Acts of Aggression

11 Pages Posted: 24 Nov 2021 Last revised: 5 Mar 2024

See all articles by Dapo Akande

Dapo Akande

Blavatnik School of Government, University of oxford

Miles Jackson

University of Oxford - Faculty of Law

Date Written: October 27, 2021

Abstract

General Comment 36 of the Human Rights Committee, adopted in 2018, proposes that ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.’ One question about this claim is whether it reduces incentives for compliance with international humanitarian law for states and their agents – incentives provided through the principles of belligerent equality and combatant immunity. We argue that it does not do so – such a worry about incentives is not a reason to reject the claim in General Comment 36. In the process, we also show that, if accepted, this claim is interesting in another way: it entails, in effect, a duty on states to prosecute acts of aggression insofar as they entail killing, as they often will. This itself is doctrinally innovative. As to who is to be prosecuted, it is the political and military leadership of the state. It is their decision to wage war unlawfully that renders the killings arbitrary.

Keywords: jus ad bellum, right to life, duty to prosecute, aggression, combatant immunity

Suggested Citation

Akande, Dapo and Jackson, Miles, The Right to Life and the Jus ad Bellum: Belligerent Equality and the Duty to Prosecute Acts of Aggression (October 27, 2021). Available at SSRN: https://ssrn.com/abstract=3951384 or http://dx.doi.org/10.2139/ssrn.3951384

Dapo Akande

Blavatnik School of Government, University of oxford ( email )

10 Merton St
Oxford, Oxfordshire OX1 4JJ
United Kingdom

Miles Jackson (Contact Author)

University of Oxford - Faculty of Law ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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