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Florida State University Journal of Transnational Law & Policy

Larry May

Abstract

In this paper, I will argue that new developments in both the jus ad bellum law of the use of force, and the jus in bello law of armed conflict, have moved international law quite close to the position of contingent pacifism. The UN Charter was meant to eliminate recourse of war as we had known it.' And this continues to be the way the Charter is viewed today as a source of jus ad bellum law. In addition, there is a movement that sees that war cannot be conducted jus in bello, as we have, and still have respect for human rights. International humanitarian law has in the past largely followed the Just War tradition in regarding some wars as just even though war involves the intentional killing of humans. But that is changing with the human rights revolution that is sweeping across international law. I will proceed by first discussing the general framework of lex ferenda international law that is beginning to influence lex lata international law. Second, I shall briefly discuss a new version of pacifism today, contingent pacifism, which seems especially close to where international law is moving today. I then spend several chapters first on the jus ad bellum and then several chapters on the jus in bello. In the third section, I will set out an argument that the UN Charter, as a source of jus ad bellum law, is nearly a contingent pacifist document. In the fourth section, I discuss various court cases that interpret the UN Charter as holding something close to a contingent pacifist position. In the fifth section, I discuss how some scholarly commentators have come to understand the UN Charter's position on the justifiability of a State initiating war or armed conflict. In the sixth section, I will describe a very recent controversy about the jus in bello, the way war or armed conflict is conducted, namely the conflict between human rights law and international humanitarian law. In the seventh section, I will discuss various ways that theorists and courts have sought to reconcile the two regimes of international law, especially concerning the doctrine of lex specialis, explaining why this attempted reconciliation moves international law closer to contingent pacifism than it had been. In the eighth section, I will describe the way that 18th Century texts on the laws of war provide a background for today's debates, where there were very serious restraints on killing during war. In the ninth and final section, I offer some concluding thoughts about how jus ad bellum and jus in bello are understood, or should be understood, in international law today. While somewhat controversial, my interpretation of the role of the UN Charter in jus ad bellum law, and the place of human rights law in the jus in bello law of armed conflict, at least at the level of lex ferenda, shows that international law is moving toward a position that is close enough to contingent pacifism to be worth noting and investigating.

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