Chapter

The use of weapons and jus ad bellum

Stuart Casey-Maslen

Weapons under international human rights law

Cambridge ; New York : Cambridge University Press, 2014

p. 282-295

English

A central dilemma, as posited by Schabas, is that human rights law 'has suggestions within it, albeit hesitant and underdeveloped, that aggressive war is itself a violation. Put otherwise, there is a human right to peace. Thus, the inquiry into whether killing in wartime amounts to arbitrary deprivation of life involves an assessment of whether the perpetrator of the violation was indeed acting lawfully, that is, whether the use of force was compatible with the jus ad bellum. This chapter is intended to promote further discussion of this issue by looking at the relationship between human rights and jus ad bellum through the lens of weapon use. For while not every use of force includes actual discharge of weapons (given that a foreign military occupation that is unopposed but nonetheless aggressive in nature or a blockade would still constitute a use of force ad bellum), in most cases weapons are the mainstay of such a use of force. The author concludes by arguing that the circle can best be squared by an acceptance that the - typically widespread - violations of fundamental human rights occasioned by aggression may be effectively addressed through appropriate forms of remedy and reparation, including transitional justice measures.

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