Legal Stability and Claims of Change: The International Court's Treatment of Jus Ad Bellum and Jus in Bello

Posted: 2 Apr 2007

Abstract

The post-Cold War era has witnessed a number of international conflicts and the attendant claims that the law related to the use of force and armed conflicts have experienced significant changes in consequence of those events and processes. This has been argued extensively in terms of the conflicts of Iraq, Yugoslavia, or Afghanistan. The proof of legal change is, however, difficult to establish as it is subject to high standard of proof and at the same time legal changes can damage the consistency and credibility of the system. As the International Court's consistent jurisprudence demonstrates, the argument of alleged legal changes in the legal regime governing armed conflicts are not based on the consistent reasoning. This is explained at the example of the Court's treatment of a number of fields, such as the consent to the use of force, proof of the facts of the use of force, the law of self-defence, and the law of belligerent occupation. The Court's consistent jurisprudence not only undermines the argument of legal change but also demonstrates that the legal position in this field maintains its separate existence in relation to power and politics. The strict application of legal norms is an inevitable requirement for a transparent legal system.

Keywords: use of force, self-defence, armed attack, necessity and proportionality, proof of the use of force, legal change, occupation of territory

Suggested Citation

Orakhelashvili, Alexander, Legal Stability and Claims of Change: The International Court's Treatment of Jus Ad Bellum and Jus in Bello. Nordic Journal of International Law, Vol. 75, pp. 371-407, 2007. Available at SSRN: https://ssrn.com/abstract=976349

Alexander Orakhelashvili (Contact Author)

University of Birmingham - Law School ( email )

Birmingham Law School
Edgbaston
Birmingham, B15 2TT
United Kingdom

HOME PAGE: http://www.law.bham.ac.uk/staff/profiles/orakhelashvili.shtml

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