Inger Österdahl, Law, Uppsala university

2007-2012

The purpose of the project is to investigate the current conceptual problems relating to the international humanitarian law applicable in armed conflict (jus in bello). The current legal construct is based on some crucial dichotomies which are eroding. The erosion of the dichotomies makes the rules in their current form harder to apply. In order to make possible the realization of the purposes of the international humanitarian law the interpretation and application of the current laws will have to change or new international humanitarian laws will have to be developed either in treaty form or through practice.

The dichotomies in question are the one between civilians, or non-combatants, and combatants, between the private and the public, between what is national and international, and between a state of war (or "armed conflict") and peace. The dichotomy between human rights applicable in peacetime and humanitarian law applicable in armed conflict is also disappearing it is maintained in this project. A further dichotomy relevant in the context of this project is the one between the body of jus in bello and the law regulating the resort to war in the first place (jus ad bellum). It will be suggested that this distinction is also eroding.

The theoretical and practical consequences of these tendencies of implosion, firstly, within the field of international humanitarian law and, secondly, between the field of humanitarian law and the one of human rights, and, thirdly, between the jus in bello and the jus ad bellum will be scrutinized in this project. The goal is to map out the problems and then to the extent possible suggest legal solutions either in terms of the application of the current rules or in terms of the creation of new rules. The superior goal is to find ways in which the values inherent in the current international humanitarian law can be upheld in a rapidly and radically changing environment. As far as the jus ad bellum is concerned the struggle would continue to minimize the resort to armed force.
The purpose has not changed during the project.

The three most important results of the project

One important result is that the relationship between the jus in bello and the jus ad bellum is a living issue and that the interpretation of this relationship is of great importance to how wars are waged. From a strictly legal perspective the jus in bello and the jus ad bellum are two distinct categories, but in reality they tend to affect each other. What position one takes on the issue of the mutual relationship between the jus in bello and the jus ad bellum is closely linked to politics and ideology. In the ongoing intellectual "war" over the way these two fields of law should or should not be linked together it is important to stick to the non-discriminatory humanitarian perspective which is fundamental to international humanitarian law.
Another important result this time with respect to the accountability of peace-keeping forces for potential human rights crimes is that the European Court of Human Rights at least for Europe's part has started putting a stronger emphasis on the protection of human rights at the cost of its earlier argument that decisions made by the UN Security Council in the name of international peace and security weigh heavier. A host of detailed circumstances will decide the outcome of each individual case, but the tendency is that the European Court of Human Rights now dares to oppose human rights to the decisions made by the UN Security Council.
A further important result is that the category of jus post bellum inevitably develops in response to today's conflicts and in particular in response to the involvement of the international community and the international administration of states in post-conflict situations. If the jus post bellum is taken seriously, this will have great consequences for the organization of the laws of war since the jus post bellum places its focus on the future, after the war, and the well-being of ordinary human beings rather than the well-being of the military and the state leaders.

New research questions

Further deepening the question concerning the relationship between the jus in bello and the jus ad bellum one could study the potential effects of the insertion of the crime of aggression in the statute of the international criminal court (the Rome Statute). Now (2010) an agreement has been reached between the parties to the Rome statute on an elaborate definition of the crime of aggression. There is the possibility that the inclusion of the crime of aggression, which makes up part of the jus ad bellum, in the Rome Statute which is otherwise focused on the jus in bello will contribute to a mutual influence of the two fields of law on each other. It is important that this potential mutual influence is constructive and not destructive to humanitarian values.
Another new research question concerns the new airplanes without pilots (drones) and in particular their use in order to kill persons who are considered enemies in the ongoing war on terrorism for instance. The killing of chosen individuals (targeted killing) seems to have become more common and is legally very problematic. The technical development and the development in the kinds of conflicts that exist are both illustrated by the phenomenon of the targeted killing of individual members of non-state armed groups. This development is fast and in need of normative analysis.
A further new research issue is the interaction between the laws of war (both jus in bello and ad bellum) and the new media. The new - so called social - media can be used by the parties to a war and the way the use of the new media may interact with the laws of war is an important issue. The development has just started, but just like the growth of targeted killings above the media development can be expected to be fast and the potential effects of greater use of social media in war can be great.

The project's two most important publications

The project's two most important publications so far are two articles published in Nordic Journal of International Law (2009; 2012). On article deals with the relationship between the jus ad bellum and the jus in bello and bears the title "Dangerous Liaison? The Disappearing Dichotomy between Jus ad Bellum and in Bello". The article argues that there is an inevitable mutual influence between the two fields of law and that it is important to always choose an attitude to these to interplaying parts of the laws of war which places humanitarian (as opposed to military or real political) values first.
The other article deals with the emerging third part of the laws of war namely the jus post bellum which has become increasingly topical. Stop making war is one thing, making peace is another and the thought is that rules that take care of the phase between war and (lasting) peace are important. The article bears the title "Just War, Just Peace and the Jus post Bellum". The article takes up the legal contents of this emerging part of the laws of war and discusses how the development of a jus post bellum may affect the other two parts of the laws of war. The question is asked whether instead of three laws of war it would be better to have just one "jus of force".
In progress are also three articles intended for publication in international peer reviewed journals with the following working titles:
*"The gentle modernizer of the law of armed conflict" which treats the jus post bellum further and will be included in an edited volume on the jus post bellum published by Oxford University Press, 2013.
*"The responsibility to protect and the responsibility while protecting: Opening Pandora's box?" which treats the relationship between the jus in bello and the jus ad bellum starting from a critical letter from Brazil to the UN after the international military intervention contributing to the regime change in Libya in 2011.
*"Third party to the conflict? Peace operations and international humanitarian law" which deals with the position of peace-keeping troops under the laws of war and in particular whether peace-keeping troops can be regarded as parties to an armed conflict and if so what this entails from the point of view of the law.

No publications have (yet) been published with "open access".

Publications

”Dangerous Liaison? The Disappearing Dichotomy between Jus ad Bellum and Jus in Bello”, Nordic Journal of International Law, vol. 78, no. 4, 2009, s 553-566.

“Just War, Just Peace and the Jus post Bellum”, Nordic Journal of International Law, vol. 81, no. 3, 2012, s 271-294.

“The Public-Private in Armed Conflict – The Accountability of Private Security Companies”, Uppsala University, Faculty of Law, Working Paper 2010:3

“Defer and Rule: The Relationship between the EU, the European Convention on Human Rights and the UN”, Uppsala University, Faculty of Law, Working Paper 2012:5.