Lieblich on "Internal Jus Ad Bellum"

Eliav Lieblich, Radzyner School of Law, Interdisciplinary Center, has posted Internal Jus Ad Bellum, which is forthcoming in the Hastings Law Journal 67 (2016).

In 1945, the U.N. Charter famously set out “to save succeeding generations from the scourge of war.” Having in mind traditional interstate wars, the Charter’s Article 2(4) outlawed, for the first time, interstate uses of force. However, nowadays, international wars are relatively rare, while civil wars are both more numerous and increasingly destructive. Still, international law has yet to develop a regime regulating the resort to war (jus ad bellum) within a state, either by governments or opposition groups. Contemporary jus ad bellum, thus, fails to address one of the most atrocious forms of war in the modern international system.

This Article puts forward a novel theory of internal jus ad bellum, equally applicable to governments as well as opposition groups. It demonstrates that the current blind-spot in international law concerning this issue is incoherent and unwarranted. By applying the revisionist approach to just war theory, this Article argues that internal resort to armed force can only be morally acceptable if undertaken in self (or other) defense against grave threats.

Applying this notion to the international-legal sphere, this Article claims that collectivist doctrines such self-determination, sovereignty or democratic entitlement are not appropriate venues for an acceptable standard of internal jus ad bellum. It proceeds to locate such a possible standard in international human rights law (IHRL), which enshrines everyone’s right to life. However, as the Article demonstrates, IHRL, as currently understood, fails to serve as an effective framework for internal jus ad bellum, since it collapses, during armed conflict, into international humanitarian law (IHL). The Article concludes by suggesting an understanding of IHRL that can overcome these limitations and thus serve as a working doctrine of internal jus ad bellum.