Sloane: The Cost of Conflation: The Dualism of Jus Ad Bellum and Jus in Bello in the Contemporary Law of War

Robert Sloane (Boston Univ. - Law) has posted The Cost of Conflation: The Dualism of Jus Ad Bellum and Jus in Bello in the Contemporary Law of War (Yale Journal of International Law, forthcoming). Here's the abstract:

Much post-9/11 scholarship asks whether modern terrorism, the increasing availability of catastrophic weapons to non-state actors, and other novel threats require changes to either or both of the traditional branches of the law of war: the jus ad bellum, which governs resort to war, and the jus in bello, which governs the conduct of hostilities. Little if any work focuses on the equally vital question whether the relationship between those branches - and, in particular, the axiom that insists on their analytic independence - can and should be preserved in the twenty-first century. In fact, the issue has been almost entirely neglected since Sir Hersch Lauterpacht, the eminent former judge of the International Court of Justice, published a seminal article on the topic more than fifty years ago. This article revisits the issue in the twenty-first century. The traditional view, which I refer to as the dualistic axiom, holds that the jus in bello applies equally to all combatants - whatever the legality of their justification for resorting to force. Yet subjective conceptions of the justice or legality of conflicts increasingly erode the legal boundary between ad bellum and in bello constraints on war. Conflation of these distinct branches of the law of war also afflicts international jurisprudence. The cost of ad bellum-in bello conflation is high: conflation of the two threatens to compromise the efficacy of both. This article offers a qualified defense of the dualistic axiom but also tries to refine our understanding of it. It explains the sources and logic of conflation, shows its costs, and argues that we must resist the dualistic axiom's erosion. To adapt Justice Holmes's maxim, the life of the law of war (including the dualistic axiom) has not been logic: it has been experience. The axiom may not always withstand strict logical scrutiny, but it remains firmly grounded in historical experience and a realistic appreciation of the political and moral reality of war. Still, for the law of war to operate effectively, it must candidly confront new geostrategic developments, technological advances, and changes in the nature of warfare itself. The article concludes by clarifying how the dualistic axiom may best operate today to serve the policy values that underwrite it.