Wednesday, August 02, 2006

Jus ad bellum and Jus in bello: On the Responsibility of Soldiers for the Crime of Aggression

By Hitomi Takemura

The laws of war and just war theory are normally thought to consist of two components: jus ad bellum ("law to war") and jus in bello ("law in war"). Jus ad bellum regulates the decision to resort to armed force. For instance, one decides whether the use of armed force constitutes aggression or self-defence in accordance with jus ad bellum. Jus in bello regulates the actual conduct during armed conflict. The distinction between these two sets of rules is made for assuring a proper application of jus in bello even in a situation of an established jus ad bellum violation. It is thus possible for a just war to be fought unjustly and for an unjust war to be fought in accordance with the rules.

A violation of jus ad bellum is mainly thought to be a matter incurring state responsibility. When it comes to individual criminal responsibility for a violation of jus ad bellum, the proposed definition of the crime of aggression reveals it is a leadership crime, committed by a person “being in a position effectively to exercise control over or to direct the political or military action of a State”.

Michael Walzer in Just and Unjust Wars wrote that : “[w]e draw a line between the war itself, for which soldiers are not responsible, and the conduct of war, for which they are responsible, at least within their own sphere of activity”. As a corollary to the distinction between jus ad bellum and jus in bello, foot soldiers and people who do not have effective control over the state act or military act should be immune from charges of jus ad bellum violations (at least in the context of international criminal responsibility).

Should this distinction of responsibility between leaders and soldiers be so simple? Walzer quoted Anne Frank’s Diary describing: “I don’t believe that only governments and capitalists are guilty of aggression. Oh no, the little man is just as keen on it, for otherwise the people of the world would have risen in revolt long ago”.

As far as state responsibility is concerned, state responsibility eventually comes down to people of the state, nationals. From this perspective, nationals of a state in question allegedly violating jus ad bellum indirectly bear responsibilities. Regarding moral (not criminal) culpability, Walzer admitted that it would seem possible to regard the entire group of knowledgeable people at least potentially blameworthy if the war is aggressive and unless they join the opposition. To say that, one needs to presume these people have knowledge and a private sense of political possibility. Since each soldier belongs to a state, soldiers as citizens of a particular state may be morally blameworthy in case of an aggression committed by their state. In this case, why do soldiers need to go to war and fight justly, while at the same time they are immune from the crime of aggression?

The sentence “Crimes against international law are committed by men, not by abstract entities” is included in the Nuremberg Judgment. So what is the responsibility of soldiers and normal citizens for the crime of aggression? To what extent are they responsible?