Preamble
Global organisations and leaders, geo-political and security experts, international think tanks and the global citizen have always questioned the necessity of conflict, its moral and ethical justification, proportionality of response, and the vital aspect of widespread, appalling infrastructure and human casualties, specially of innocent women and children. Since time immemorial, the innocents have always borne the brunt of any conflict. Confrontation and Conflict has become extraordinarily complex, multi-lateral (with global and regional powers intervention), and multi-dimensional (kinetic and non-kinetic including informational, economic, psychological, cyber et al). The span and spectrum of conflict has expanded; from cognitive, insurgencies, unconventional, localised, full scale to the extreme end of nuclear, biological and chemical conflict, which could result in Armageddon. There are no front lines or rear areas or ‘no-go’ civilian areas, no place to hide, 24X7 multi-engagement, which impacts ‘the Globe’, directly or indirectly, sooner rather than later. The countless displaced refugees both internal and external exacerbate the situation. Take the case of COVID which was no less than a war (whether man made or natural, only time will tell), Ukraine, Israel-Hamas wars, multiple conflicts in Africa, which has impacted even the common man globally. One truism stands validated that there are two sides to a coin (multiple sides currently!), accompanied by an oft quoted cliché, ‘one nations terrorist could be another’s ‘freedom fighter’.
In such a dynamic, violent geo-political and security environment, the pivotal aspect of ‘Jus ad Bellum’ and ‘Jus in Bello’ gains significance. What is ‘Jus ad Bellum’ and ‘Jus in Bello’?
Jus ad bellum refers to “the conditions under which States may resort to war or to the use of armed force in general.” This is distinct from the set of rules that ought to be followed during a war, known as ‘jus in bello’, which govern the behaviour of parties in an armed conflict[i]. The prohibition on the use of force amongst States and the exceptions to it (self-defence and UN authorization for the use of force), are set out in the United Nations Charter of 1945, and form the core ingredients of jus ad bellum. Jus in bello regulates the conduct of parties engaged in an armed conflict. International Humanitarian Law (IHL) is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible. IHL applies to the belligerent parties irrespective of the reasons for the conflict or the justness of the causes for which they are fighting. If it were otherwise, implementing the law would be impossible, since every party would claim to be a victim of aggression. Moreover, IHL is intended to protect victims of armed conflicts regardless of party affiliation. That is why jus in bello must remain independent of jus ad bellum. It is equally applicable to all wars like conflicts in Africa, Ukraine and Israel-Hamas.
In the spotlight now, is the Israeli response to the Hamas terrorist actions against Israel on 07 Oct 2023. India was in the forefront, immediately condemned the Hamas terrorist action, while supporting the two-nation formula, and calling for tempering the response from Israeli Defence Forces (IDF) in Gaza. USA with her usual allies from the West have fully supported Israel. But as the war rages on beyond a month, with widespread media coverage showcasing the enormous and disproportionate infrastructure destruction and civilian casualties, they are cautioning IDF from a no-holds barred revenge. Israeli actions and words indicate, their perception of a strong linkage of the Gaza Strip population with the actions of Hamas, as they elected Hamas to govern Gaza, celebrated the Hamas action of 07 Oct, and have been supporting the group for decades; and thus, attribute their complicity of being equally party to the terrorist actions carried out by Hamas.
IHL Ingredients[ii]
IHL specifies and set limits on what parties to an armed conflict can and cannot do, which are applicable to all belligerents. The laws of war require that attacks be directed solely against military objectives, prohibits the targeting of civilians and civilian objects, and outlaws attacks not directed at specific military objectives. Hospitals, ambulances, schools, and places of worship are also ordinarily protected from attack, although their use for military purposes can potentially end that protection. These rules all reflect what lawyers call the principle of “distinction,” which is supposed to guide parties to the conflict in distinguishing civilians and civilian infrastructure from enemy fighters and military objectives. Under the principle of “proportionality,” the law prohibits attacks that could be expected to cause civilian harm that would be excessive in relation to the concrete and direct military advantage the attack is expected to produce. Common understanding dictates that an attack on an enemy headquarters even if it is expected to cause civilian deaths so long as that harm is not “excessive” is legal. However, both the attacking and defending parties have obligations to take precautions to mitigate harm to civilians. Another interesting instance is the use of involuntary human shields to impede military operations, while prohibited, does not relieve the attacking party of their own legal obligations.
Case Study: ‘Jus ad Bellum’ of Russia’s ‘Special Military Operation’ in Ukraine.
On 24 Feb 2022, the day Russia launched its special military operations, her Permanent Representative to the UN notified the UN Secretary-General that the military action was “taken in accordance with Article 51 of the UN Charter in the exercise of the right of self-defence.” As explanation, he appended the speech Putin had made to the Russian population earlier in the day announcing the commencement of the campaign. On the Russian notification, the Security Council voted 11-1 to condemn the Russian action, with China, India and United Arab Emirates abstaining. Russia’s vote against as a Permanent Five member killed the proposed resolution[iii].
Article 51 of the UN Charter provides the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
In essence, Russia complied with the requirement that actions in self-defence be reported promptly to the Security Council. The issue is whether the military campaign is a lawful exercise of self-defence. A key element which needs determination is whether ‘self-defence’ can be pre-emptive. Putin’s speech is the key to understanding the nature of Russia’s Article 51 claim[iv]. Putin pointed to “the fundamental threats which irresponsible Western politicians created for Russia consistently, rudely and unceremoniously from year to year”, obviously, referring to the Eastward expansion of NATO, which was moving its military infrastructure ever closer to the Russian border. To highlight the threat, he cited NATO and US operations against the Federal Republic of Yugoslavia, Iraq, Libya, and Syria, all of which, he argues, were contrary to international law. Regarding NATO expansion, Putin stated “they have deceived us, or, to put it simply, they have played us.” Putin rhetorically asks, “What next, what are we to expect? If history is any guide, we know that in 1940 and early 1941, the Soviet Union went to great lengths to prevent war or at least delay its outbreak…. When it finally acted it was too late.” Coming to the crux of Russia’s legal claim, Putin stated that Russia cannot and will not stand idly by and observe the Eastward expansion of NATO, due to its charter of collective security and ‘all for one, and one for all’ agreement (my insertion). Putin told the nation that apart from NATO deploying her forces, a hostile “anti-Russia” group of nations is being built around Russia (including nations who were part of erstwhile USSR), which are being armed with cutting edge weapon systems. In my opinion, Putin while not explicitly stating so, called the high probability of Ukraine joining NATO as existential. Talking specifically on Ukraine, he stated “what is happening there, is impossible to tolerate. We have to stop that atrocity, that genocide of millions of people who live there and who pin their hopes on Russia, — on all of us. In these circumstances, we have to take bold and immediate action. The people’s republics of Donbass have asked Russia for help.” By all accounts, compared to Israel and Hamas, the Russian defence forces took exceptional care to avoid large scale civilian casualties (jus in bello), plausibly due to the special relations between Ukraine and Russia historically.
Ethical Overview: The Israel – Hamas War. On 07 Oct 2023, Hamas launched horrific terror attacks in Israel killing approximately 1200 personnel including women and children. The retaliation by Israel has been instant and massive, which some would rightly call disproportionate, specially the incessant aerial, artillery and rocket attacks into Gaza strip causing utter devastation, and over 10000 civilian casualties (still counting). The task of assessing Israel’s compliance with IHC/LOAC (Laws of Armed Conflict) in relation to medical infrastructure is riddled with complexity; even if Hamas is misusing hospitals, any attack must not be indiscriminate. And Israel must comply with the principles of proportionality and precautions. On the other side, if Hamas is using medical infrastructure for military purposes, it is breaking LOAC.” Both accuse the other, Israel not only talks of confirmed credible inputs of Hamas having its HQ under/near civil infrastructure specially hospitals and mosques; but also, of preventing Gazan population from moving from danger zones (human shields), especially after IDF warnings.
Major Wars: moral and ethical justification. The Hiroshima-Nagasaki nuclear bombings are still emotionally debated; many say that Japan had already been defeated, and the Supreme Council of Japan had met and decided to accept ‘unconditional surrender’[v]. However, some analysts point out that given Japanese culture of honour and surrender, they may have fought on in mainland Japan to the last man last round. Whatever, the jus ad bello of nuclear bombing two cities is difficult to swallow. Similarly carpet bombing of many German towns by the Allied Forces during World War II; and use of napalm and fuel air explosives and defoliants in Vietnam is hard to justify. The jus ad bellum of both the Gulf wars I&II can be debated, as many experts term them as wars to retain control of oil in the Middle East. One can debate the global war on terror (GWOT) waged by USA after the 9/11 bombings. The fact that President Biden admits to actions taken out of sheer revenge which was out of proportion, and cautions PM Netanyahu against following the same course, highlights the disproportionate use of force by USA and her allies in many areas to include global South, Afghanistan, Iraq, Yemen, Libya (the list goes on). Incidentally, the Sri Lankan government’s elimination of the secessionist Tamil Tigers as a military force in 2009 is often cited as an example of the successful use of force (albeit disproportionate) against a terrorist group.
Historically and globally, the leaders (especially political) strategy of espousing revenge and immediate retribution is enacted to save their necks, but the end result is often disappointing. US President George Bush on the ‘War on Terror’ stated bombastically, “A war against all those who seek to export terror, and a war against those governments that support or shelter them.” He added “Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated”. Similarly, Sharon’s political compulsions compelled him to promise a “quick operation” with the invasion of Lebanon in 1982, but lasted for 18 years at a terrible price and no achievement to show for it.
Brainstorming the Responses to Major Terrorist Acts. Articles have been written by eminent personalities and thinkers from both sides of the fence, on the issue of response (disproportionate) or restraint, providing historical examples. Two recent articles, one in Foreign Affairs by Shiv Shankar Menon (former NSA), and other article in The Economist by Andreea Manea, refers to the policy of restraint adopted by the then Indian government after the November 26, 2008 attack by terrorists in Mumbai, after due deliberations[vi]. Instead, New Delhi responded to the terrorist atrocity in Mumbai through diplomatic and covert channels. Menon says that the decision brought India international support, prevented a potentially catastrophic war, minimized civilian casualties, and arguably prevented more terrorism. At least so far, India has not experienced another Pakistani-backed attack with mass casualties on Indian soil. Some counter this by stating that the more aggressive actions taken by present government, surgical strikes, Balakote, and most importantly abrogation of Article 370 actually worked, and closed many options for Pakistan. In any case the Indian culture which in turn is part of the ethos of the Indian Armed Forces, does not support the concept of disproportionate response specially against hapless civilians.
The primary goal of terrorist violence is to gain media attention, and incite violent reaction from the government. Despite vigorous global action against terrorism and terror groups, the threat of terror looms large. It is highly probable that Hamas attacks were executed to extract maximum Israeli overreaction/retribution, to recruit more Hamas supporters, and bring Palestine state into focus internationally. It should be accepted that the crisis was generated by ignoring the rights of the Palestinians and their desire for statehood. The probability of Israel exploiting this gruesome attack to seek a permanent solution by killing the two-nation solution permanently, should not be ruled out.
The international responses generated showcase the current global divide. The West, will be viewed as hypocrites considering their stance toward foreign occupation and attacks on civilians in Ukraine and Palestine. Ironically, the UN (not some obviously biased and vested body like the OIC) has sanctioned Israel a greater number of times, as compared to the entire sum of the rest of the world, does speak loudly on how Isreal have governed their own occupied terrorists (exactly how UN describes both areas[vii]). The Western press too has been supporting Israel unconditionally (calls for restraint by Israel has started from leaders and media). What is intriguing is lack of genuine effort by global powers (specially Israel supporters) to call or enforce an immediate ceasefire, even if rejected by Israel. Global South would naturally view this as another instance of Western hypocrisy when it comes to West’s avowed commitment to the laws of war and humanitarian considerations.
Conclusion. Israel will ultimately prevail; but it could be a case of battle won, but war lost. But one assessment can be made with surety; that military action will not bring permanent peace and stability, and a two-nation solution can only bring lasting peace. There is an urgent need to start international negotiations towards that end, by credible, mutually acceptable broad-based group of nations. China has already jumped in, and India must, as it has an important to role to play towards this end.
(This article was first published in www.cenjows.in)
[i] ‘What are jus ad bellum and jus in bello?, 22 January 2015, International Committee of the Red Cross (ICRC), available at https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0%EF%BB%BF. Accessed on 14 Nov 23.
[ii] ‘What is International Humanitarian Law’, ICRC, available at https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf. For more detail read Encyclopedia Britannica at https://www.britannica.com/topic/law-of-war.
[iii] Paraphrased from Russia’s “Special Military Operation” and the (Claimed) Right of Self-Defense’ by Michael N. Schmitt, Feb 28, 2022, Lieber Institute West Point, available at https://lieber.westpoint.edu/russia-special-military-operation-claimed-right-self-defense/. Accessed on 15 Nov 2023.
[iv] ‘Full text of Vladimir Putin’s speech announcing ‘special military operation’ in Ukraine’, The Quint, 24 Feb 2022, available at https://theprint.in/world/full-text-of-vladimir-putins-speech-announcing-special-military-operation-in-ukraine/845714/. Also read ‘Address by the President of the Russian Federation’ 24 Feb 2023, Kremlin, available at http://en.kremlin.ru/events/president/news/67843. Accessed on 21 Nov 2023. als
[v] ‘The Bomb Didn’t Beat Japan’, May 30, 2013, by Ward Wilson, Foreign Policy, available at https://foreignpolicy.com/2013/05/30/the-bomb-didnt-beat-japan-stalin-did/. Accessed on 15 Nov 2023.
[vi] ‘Choices: Inside the Making of Indian Foreign Policy’, 15 Nov 2016, by Shiv Shankar Menon, available on Amazon, and ‘The Virtues of Restraint: Why the Use of Force Is Rarely a Sufficient Response to Terrorism’, by Shivshankar Menon, November 16, 2023,available on https://www.foreignaffairs.com/israel/virtues-restraint-terrorism?utm_medium=newsletters&utm_source=fatoday&utm_campaign=The%20Virtues%20of%20Restraint&utm_content=20231116&utm_term=FA%20Today%20-%20112017. Accessed on 17 Nov 2023.
[vii] ‘Wikipedia’ on West Bank and Gaza Strip, available at https://en.wikipedia.org/wiki/West_Bank. Accessed on 21 Nov 2023.
