The only true fragmentation in international law: Jus ad bellum and jus in bello

• Citation: (2022) African Yearbook on International Humanitarian Law 54
• DOI: https://doi.org/10.47348/AYIH/2022/a4
• Published date: 28 May 2024
• Pages: 54-66
• Author: Bantekas, I.
• Date: 28 May 2024

54

The only true fragmentation in

international law:

Jus ad bellum and jus in bello

Ilias Bantekas*

1 INTRODUCTION

This article supports a very simple hypothesis, namely that the

international law regulating recourse to armed force (jus ad bellum) is

necessarily fragmented from t he body of law regulating the conduct of

hostilities (laws of war or jus in bello). This hypothesis is tested through

a series of steps and deductions, all of which aptly justify the original

hypothesis as a matter of reason, fundamental notions of justice and

downright practicality. Ultimately, if international humanitarian

law (IHL) is not uniformly applied to all sides of the conict a nd its

enforcement is dependent on which party is considered the aggressor,

this body of law is effectively of no use, and we are drawn back to

very dark times that this author would like to think have long been

overcome. If these two bodies of law were not fragmented by the very

conduct of states or by reference to the respective treaties, we would

be forced to spell it out loud in order for both elds of regulation to be

meaningful a nd mutually reinforcing.

2 THE ORIGINS OF THE DEBATE

Is there a debate? Perhaps not in the scholarship, but certainly in the

practice of some states. Russia invaded Ukraine on the assumption

that it violated a prior agreement whereby NATO would not interfere

with military allegiances in the territories of the former USSR. Russian

aggression against Ukra inian civilians and non-recognition of prisoner

of war (POW) status of militia g roups directly and expressly linked to

the Ukrainia n armed forces suggest that whatever its justication for

the brutal invasion in 2022, as wel l as its occupation of Crimea in 2014,

it considers its armed activities in Uk raine as an extension of Ukraine’s

alleged threat to Russian secur ity interests. In equal measure, Israel’s

* Professor of Internationa l Law, Hamad Bin Khali fa University (Qatar Foun-

dation) and Adjunct Professor of L aw, Georgetown University, Edmund A

Walsh School of Foreign Ser vice. Email: ibantekas@hbku.edu.qa.

https://doi.org/10.47348/AYIH/2022/a4

(2022) African Yearbook on International Humanitarian Law 54

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