Published online by Cambridge University Press: 05 August 2011
The moral and legal debate over the separation of jus in bello from jus ad bellum generally assumes that the law of war supports this separation and the concomitant doctrine of ‘equality between belligerents’, also known as the ‘duality’ or the ‘symmetry’ principle. This article examines the Nuremberg-era precedents and legal scholarship, as well as more recent legal and scholarly material, and argues that the general assumption is wrong and that the arguments supporting the radical legal separation of the two jus's are unconvincing.
2 See the various Human Rights Watch and Amnesty International press releases issued during the 2003 Iraq War and its aftermath archived on their websites, starting with Human Rights Watch, ‘Iraq: Warring Parties Must Uphold Laws of War’, 19 March 2003, available online at www.hrw.org/press/2003/03/us031903ltr.htm; and Amnesty International Press Release, ‘Iraq: Military Action Could Trigger Civilian and Human Rights Catastrophe’, AI INDEX: MDE 14/029/2003, 20 March 2003, available online at www.amnesty.org/en/library/info/MDE14/029/2003/en.
3 E.g., the Committee to Protect Journalists reports this response to its attempts to elicit information from the US Defense Department about the killing of journalists at the Palestine Hotel during the American attack on Baghdad in 2003: ‘In response to CPJ's letter to Secretary of Defense Rumsfeld, Pentagon spokeswoman Victoria Clarke wrote to CPJ acting director Joel Simon on April 14 stating that “coalition forces were fired upon and acted in self-defense by returning fire.” She acknowledged the Pentagon's responsibility to exert caution on the battlefield but noted that news organizations had been warned that Baghdad would be a “particularly dangerous” place and should pull their reporters from the city’; J. Campagna and R. Roumani, ‘Permission to Fire? CPJ Investigates the Attack on the Palestine Hotel’, available online at http://cpj.org/reports/2003/05/attack-on-the-palestine-hotel.php.
4 In an attempt to prosecute NATO leaders before the ICTY for murder during the Kosovo War on the grounds of the war's illegality, the lack of a crime of aggression in the ICTY statute was turned against the complainants in this way: ‘Allegations have been made that, as NATO's resort to force was not authorized by the Security Council or in self-defense, that the resort to force was illegal and, consequently, all forceful measures taken by NATO were unlawful. . . . That being said, as noted in paragraph 4 above, the crime related to an unlawful decision to use force is the crime against peace or aggression . . .. [T]he ICTY does not have jurisdiction over crimes against peace . . .. The ICTY has jurisdiction over serious violations of international humanitarian law as specified in Articles 2–5 of the Statute. These are jus in bello offences’; Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, UN Doc. PR/ATI.S./510-E (2000), para. 30, available online at www.un.org/icty/pressreal/nato061300.htm. The full story of this attempted prosecution may be found in M. Mandel, How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes against Humanity (2004), Chapter 6.
5 The Public Committee against Torture in Israel et al. v. The Government of Israel et al., Supreme Court of Israel, 11 December 2005, available online at www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/HCJ%20judgment%20on%20preventative%20strikes%20against%20terrorists%2011-Dec-2005.
6 The most important holding of the International Court of Justice in this regard was the unanimous one that all of the settlements built by Israel over the Green Line and populated in the hundreds of thousands since 1967 were violations of Art. 49(6) of the Fourth Geneva Convention: ‘the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, just cited . . .. The court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law’; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,  ICJ Rep. 183 (Majority). ‘Paragraph 6 of Article 49 of the Fourth Geneva Convention also does not admit for exceptions on grounds of military or security exigencies . . . I agree that this provision applies to the Israeli settlements in the West Bank and that their existence violates Article 49, paragraph 6. It follows that the segments of the wall being built by Israel to protect the settlements are ipso facto in violation of international humanitarian law’, ibid., Declaration of Judge Buergenthal, at 244 (Dissent). The General Assembly of the United Nations endorsed the Court's judgment by a vote of 150 to six, with ten abstentions: United Nations General Assembly, Tenth Emergency Special Session, 27th Meeting, 20 July 2004, A/ES-10/PV.27, at 5–6.
7 A more recent example of the same thing can be found in the Israeli Report of the Public Commission to Examine the Maritime Incident of 31 May 2010, The Turkel Commission, January 2011, available online at www.turkel-committee.gov.il/files/wordocs/7896summary-eng.PDF.
8 All sides in the philosophical debate over symmetry are well represented in D. Rodin and H. Shue (eds.), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (2008).
9 Judgment of the International Military Tribunal for the Trial of Major War Criminals, 30 September 1946, The Judgement of Nuremberg, 1946 (1999), 26.
10 L. S. Dawidowicz, The War against the Jews 1933–45 (1987), 447–8, 480.
11 Report of Robert H. Jackson United States Representative to the International Conference on Military Trials, London 1945 (1949), 437.
20 Motion Adopted by All Defense Counsel 19 November 1945, available online at www.yale.edu/lawweb/avalon/imt/proc/v1-30.htm#back1.
21 R. H. Jackson, The Nürnberg Case as Presented by Robert H. Jackson, Chief of Counsel for the United States, Together with Other Documents (1971), 82–4 (emphasis added).
23 ‘The I.G. Farben Trial’, (1948) 10 LRTWC 1, at 38.
24 ‘The German High Command Trial’, (1948) 12 LRTWC 1, at 68.
25 R. J. Pritchard and S. Magbanua Zaide (eds.), International Military Tribunal for the Far East, The Tokyo War Crimes Trial, (1981–1988), Vol. 20, at 49773–858; a list of the verdicts is available online at www.cnd.org/mirror/nanjing/NMTT.html.
26 ‘Trial of Amon Leopold Goeth’, (1946) 7 LRTWC 1 (Supreme National Tribunal of Poland); ‘Trial of Rudolf Franz Ferdinand Hoess’, (1947) 7 LRTWC 11 (Supreme National Tribunal of Poland); ‘Trial of Gauleiter Artur Greiser’, (1946) 13 LRTWC 70 (Supreme National Tribunal of Poland); ‘Trial of Dr. Joseph Buhler’, (1948) 14 LRTWC 23 (Supreme National Tribunal of Poland); ‘Trial of Takashi Sakai’, (1946) 14 LRTWC 1 (Chinese War Crimes Military Tribunal of the Ministry of Defence).
27 ‘The Dreierwalde Case’, (1946) 1 LRTWC 81 (British Military Court, Wuppertal) (the right to kill a prisoner of war to prevent escape); ‘The Belsen Trial’, (1945) 2 LRTWC 1, at 119 (British Military Court, Luneburg) (the right to use reasonable force to maintain discipline in a concentration camp); ‘Trial of Sergeant-Major Shigeru Ohashi’, (1946) 5 LRTWC 25 (Australian Military Court, Rabaul) (the right of the occupier to execute rebels after a fair trial); ‘Trial of Gerhard Friedrich Ernst Flesch’, (1948) 6 LRTWC 111 (Supreme Court of Norway) (the right of the occupier to order execution of resistance fighters after a fair trial).
28 ‘Trial of Haupsturmfuhrer Oscar Hans’, (1947) 5 LRTWC 82 (Supreme Court of Norway) (the right to carry out orders of execution on those condemned by occupying authorities where there was no reason to believe they had not had a fair trial); ‘Trial of Erich Weiss and Wilhelm Mundo’, (1945) 13 LRTWC 149 (United States Military Government Court, Dachau) (the right of police officer of the aggressor nation to shoot invading paratrooper in self defence); ‘Trial of Richard Wilhelm Hermann Bruns’, (1946) 3 LRTWC 15 (Supreme Court of Norway) (the right of occupying soldiers to shoot escaping resistance fighter they were trying to arrest), although, in this case, the trial court deployed the German aggression in deciding on the sentences (of death) for many cases of torture of other resistance fighters: ‘If a nation, which without warning has attacked another, finds it necessary to use such methods to fight opposition, then those guilty must be punished, whether they gave the orders or carried them out’, 3 LRTWC 15, at 18.
29 ‘The German High Command Trial’, (1948) 12 LRTWC 1, at 124–5 (United States Military Tribunal) (emphasis in original).
30 Ibid., at 125 (Mr George Brand, Assistant Legal Officer to the United Nations War Crimes Commission).
31 Trial of Otto Ohlendorf and Others, Military Tribunal II-A, 8 April 1948, available online at www.mazal.org/archive/nmt/04/NMT04-C001.htm.
35 Ibid., at 493–4. Benjamin Ferencz, a prosecutor at the Einsatzgruppen trial, recalls that Chief Prosecutor Telford Taylor, in his argument to the Tribunal, ‘compared the defendant's contention, that they were only acting to protect Germany, to the argument of a burglar who breaks into a house, shoots the owner, and then claims it was necessary “self-defense”’, B. B. Ferencz, Benny Stories, Chapter 4: Nuremberg Trials and Tribulations (1946–1949) Story 35: Judgment Day for Mass Murderers, available online at www.benferencz.org/index.php?id=8&story=34.
36 ‘Trial of Hans Albin Rauter’, (1949) 14 LRTWC 89 (Netherlands Special Court of Cassation).
40 ‘Trial of Josef Altstötter’, (1947) 6 LRTWC 1 (United States Military Tribunal, Nuremberg).
42 ‘Trial of Wilhelm List and Others’, (1948) 8 LRTWC 34.
43 Ibid., at 57: ‘captured members of these unlawful groups were not entitled to be treated as prisoners of war. No crime can properly be charged against the defendants for the killing of such captured members of the resistance forces, they being franc-tireurs.’
44 Yad Vashem, Nuremberg Proceedings, at 10, available online at www1.yadvashem.org/exhibitions/nuremberg/img/NUREMBERG_PROCEEDINGS.pdf.
46 ‘Nuremberg: The Crime That Will Not Die’, available online at www.zundelsite.org/english/advanced_articles/incorrect.011a.html.
47 This last sentence appears in the article without quotation marks, but, in its context, appears, or is made to appear, as if it were a direct quote. There are other slight inconsistencies in the use of quotation marks, and I have left them exactly as they appear in the original article.
48 ‘Nazi Trial Judge Rips “Injustice”’, Chicago Tribune, 23 February 1948, 3.
50 ‘Judge Stands Firm in War Trial Case’, New York Times, 25 February 1948, 10. It should be pointed out, in fairness perhaps, that the author of the Einsatzgruppen decision that so warmly embraced the Jackson Principle was the famous jurist Michael Musmanno, a pro-labour activist before the war who had been, among other things, a volunteer appellate counsel for Sacco and Vanzetti.
51 L. Oppenheim, International Law: A Treatise, Vol. 2 (1926), at 127.
52 L. Oppenheim, International Law: A Treatise, Vol. 2 (1940), at 176–7.
53 L. Oppenheim, International law: A Treatise, Vol. 2 (1952), at 217–18, 220 (emphasis in original).
55 ‘Trial of Hans Albin Rauter’, (1949) 14 LRTWC 89, at 135.
56 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949.
57 Ibid.: ‘Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.’
58 Ibid.: ‘Art. 68. Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period. The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty against a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began. The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance. In any case, the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence.’
59 Ibid.: ‘Art. 78. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.’
60 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
61 A different view of the Geneva Conventions and the equality of belligerents can be found in A. Roberts, ‘The Equal Application of the Laws of War: A Principle under Pressure’, (2008) 90(872) IRRC 931, at 936–7, available online at www.icrc.org/eng/assets/files/other/irrc-872-roberts.pdf.
62 D. Zupan, ‘A Presumption of the Moral Equality of Combatants: A Citizen-Soldier's Perspective’, in Rodin and Shue, supra note 8, at 214: ‘a general officer on the Joint Staff might be guilty of wrongdoing, even if we judge that the combatant on the ground who is actually doing the killing is not (guilty). We must, that is, recognize the gross difference in power, knowledge, access to information, influence and freedom that obtains among people in a hierarchical chain of command. The lower one is in the chain, the lesser influence, etc., one has, and the lesser one can be held responsible for the wars one is fighting.’
63 Y. Dinstein, War, Aggression, and Self-Defence (2005).
65 Judgment of the International Military Tribunal for the Trial of Major War Criminals, supra note 9.
66 The White House, Office of the Press Secretary, Fact Sheet: Status of Detainees at Guantanamo, 7 February 2002, available online at www.presidency.ucsb.edu/ws/index.php?pid=79402.
67 The assumption that the law of Nuremberg on the relationship between the two jures is represented by the Hostages case can be found on both sides of the philosophical debate. See, e.g., G. Reichberg, ‘Just War and Regular War: Competing Paradigms’, in Rodin and Shue, supra note 8, at 193, 210 (opposing the separation); and Roberts, supra note 61, at 941, available online at www.icrc.org/eng/assets/files/other/irrc-872-roberts.pdf (supporting the separation).
69 Judgment of the Special Court at Arnhem, in the case against Friedrich Christiansen, delivered on 12 August 1948, quoted by the Law Report commentator in the notes to the ‘Trial of Hans Albin Rauter’, (1949) 14 LRTWC 89, at 128.
70 ‘Re Christiansen’, in H. Lauterpacht, Annual Digest and Reports of Public International Law Cases, Year 1948 (1953), 413–14.
71 In G. Pontecorvo's La Battaglia di Algeri (1966), the resistance leader is reproached by a journalist for being ‘plutot lâche d'utiliser les sacs et les couffins de femmes pour transporter vos bombes, ces bombes que font tant victimes innocents’ [‘rather cowardly to use women's bags and baskets to carry your bombs that result in so many innocent victims’] to which Ben M'Hidi replies ‘Evidemment, avec des avions, ce serait beaucoup plus commode pour nous. Donnez-nous vos bombardiers, monsieur, et on vous donnera nos couffins’ [‘Of course, if we had your airplanes it would be a lot easier for us. Give us your bombers, sir, and we'll give you our baskets’].
73 Protocol I Additional to the Geneva Conventions, supra note 60, Art. 51 and Preamble (emphasis added).
75 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,  ICJ Rep. 226.
76 Ibid., at 262–3, paras. 95–96. The relevant operative paragraph of the court's judgment was adopted by the President's tie-breaking vote, which means the judges were actually split evenly on the point. However, the individual dissenting and majority opinions ranged over the whole spectrum of views, with some dissenting judges supporting the dominance of self-defence over jus in bello and some majority judges opposing it. The President's explanation of his tie-breaking vote was in terms of an irresolvable clash: ‘In certain circumstances, therefore, a relentless opposition can arise, a head-on collision of fundamental principles, neither one of which can be reduced to the other’, Declaration of President Bedjaoui, ibid., at 273, para. 22.
78 Ibid., at 290, para. 8. The meaning of this decision has not been lost on one modern defender of the ‘dualistic axiom’ – Robert Sloane, who claims that the axiom ‘can rightly be hailed as one of the paramount achievements of the postwar law of war’. His assessment of the International Court of Justice opinion, which he argues (without evidence) is a ‘holding that most regard as, at best, confused’, includes the following: ‘On either view, the ICJ's opinion has disquieting implications beyond the unique horror of nuclear weapons. There is no principled reason to limit its logic to particular weapons or methods of warfare. Chemical or biological weapons, too, would be justified to ensure a state's survival, as would torture, summary execution, terrorism, denial of quarter, and other in bello violations – provided only that the cost of military defeat in ad bellum terms reaches a sufficient level, that is, the destruction of a state or (perhaps) a cognate nonstate polity. A core purpose of the dualistic axiom is to avoid this kind of misguided logic. Taken to its extreme, it leads inexorably to the destruction of independent constraints on the use of force by polities. . . . Even apart from general philosophical objections, one obvious problem with this contention in the context of international law is that it cannot be limited in principle to the survival of “desirable” polities – say, to liberal democratic states. States like North Korea may equally invoke this sort of logic to justify IHL violations and disregard the dualistic axiom – as may nonstate collectives, such as al-Qaeda, that espouse some collective, sacred value higher than the individual’, R. D. Sloane, ‘The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War’, (2008) 34 Yale JIL 47, at 92, 112.
79 Naturally, the Charter-protected inherent right of self-defence is restricted to states and hence would not avail resistance movements who do not act on behalf of states. However, as the International Court of Justice pointed out in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ( ICJ Rep. 194–5), even where self-defence is not available, the doctrine of necessity is. There is no reason why this should not apply to an occupied people in the same way as it does to the occupying power. Furthermore, on the critical question of the limits on an aggressor state's right to defend itself against the consequences of its aggression (to avail itself of Art. 51 or of necessity), one can think of no reason why the mere state-or-non-state character of the resistance movement should make any difference. A defence of ‘necessity’, such as that raised in the International Court decision on the Construction of a Wall itself, would seem to be equally unavailable to an aggressor as is self-defence, since the aggressor always has the legal (and legally obligatory) alternative of ceasing its aggression.
82 See J. McMahan, ‘The Morality of War and the Law of War’, in Rodin and Shue, supra note 8, at 27, who is critical of the doctrine from a moral point of view (‘It seems to me, therefore that the moral equality of combatants can have no foundation in basic morality’), but nevertheless supports it from a pragmatic point of view on the basis of this supposed special uncertainty of the jus ad bellum. See also C. Kutz, ‘Fearful Symmetry’, in Rodin and Shue, supra note 8, at 69; and Roberts, supra note 61, at 956–7.
83 International Criminal Court Assembly of States Parties, RC/Res.6. The crime of aggression (2010), available online at www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf, proposed Art. 15 bis, para. 5.
84 G. Conso, ‘Epilogue: Looking to the Future’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999), 475.