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Legal Stability and Claims of Change: The International Court's Treatment of Jus ad Bellum and Jus in Bello

Legal Stability and Claims of Change: The International Court's Treatment of Jus ad Bellum and... <jats:sec><jats:title>Abstract</jats:title><jats:p>The post-Cold War era has witnessed a number of international conflicts and attendant claims that the law related to the use of force and armed conflicts has experienced significant changes in consequence of those events and processes. This has been argued extensively in terms of the conflicts of Iraq, Yugoslavia, or Afghanistan. The proof of legal change is, however, difficult to establish as it is subject to a high standard of proof and at the same time legal changes can damage the consistency and credibility of the system. As the International Court's consistent jurisprudence demonstrates, the argument of alleged legal changes in the legal regime governing armed conflicts is not based on consistent reasoning. This is explained by example in the Court's treatment of a number of fields, such as consent to the use of force, proof of the facts of the use of force, the law of self-defence and the law of belligerent occupation. The Court's consistent jurisprudence not only undermines the argument of legal change but also demonstrates that the legal position in this field maintains its separate existence in relation to power and politics. The strict application of legal norms is an inevitable requirement for a transparent legal system.</jats:p> </jats:sec> http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Nordic Journal of International Law Brill

Legal Stability and Claims of Change: The International Court's Treatment of Jus ad Bellum and Jus in Bello

Orakhelashvili, Alexander
Nordic Journal of International Law , Volume 75 (3-4): 371 – Jan 1, 2006
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Publisher
Brill
Copyright
© 2006 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0902-7351
eISSN
1571-8107
DOI
10.1163/157181006779139393
Publisher site
See Article on Publisher Site

Abstract

<jats:sec><jats:title>Abstract</jats:title><jats:p>The post-Cold War era has witnessed a number of international conflicts and attendant claims that the law related to the use of force and armed conflicts has experienced significant changes in consequence of those events and processes. This has been argued extensively in terms of the conflicts of Iraq, Yugoslavia, or Afghanistan. The proof of legal change is, however, difficult to establish as it is subject to a high standard of proof and at the same time legal changes can damage the consistency and credibility of the system. As the International Court's consistent jurisprudence demonstrates, the argument of alleged legal changes in the legal regime governing armed conflicts is not based on consistent reasoning. This is explained by example in the Court's treatment of a number of fields, such as consent to the use of force, proof of the facts of the use of force, the law of self-defence and the law of belligerent occupation. The Court's consistent jurisprudence not only undermines the argument of legal change but also demonstrates that the legal position in this field maintains its separate existence in relation to power and politics. The strict application of legal norms is an inevitable requirement for a transparent legal system.</jats:p> </jats:sec>

Journal

Nordic Journal of International Law – Brill

Published: Jan 1, 2006

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