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52 Va. J. Int'l L. 903 (2011-2012)
Jus Ad Bellum before the International Court of Justice

handle is hein.journals/vajint52 and id is 915 raw text is: Jus ad Bellum Before the International Court of
The norms controlling initiation of military force, or jus ad bellum as
traditionally designated in international law, are among the most important
normative princaples in the international system. As propery understood, they
stand firmy against aggression and facilitate the minimum order, which serves
as the stable basis for exchange, agreement, and human creativity. As such, one
would expect that the International Court of Justice, itself created as a barrier
against war, would serve as a powerful force against aggression in expounding
these norms. Sadly, however, the decisions of the International Court in this
area have too frequently adopted an approach that encourages, rather than
discourages, aggression. This is particularly so in the most important
contemporary threat spectrum, that of secret warfare, covert attack and
terrorism. This Article will briefy explore the requirements of a normative
system effective in discouraging aggression, review the spectrum of forms of
aggression and the contemporary importance of secret warfare, assess the
normative structure of jus ad bellum under the United Nations Charter, and
then anaye the prinpal use of force decisions of the International Court of
Justice. The Article concludes not only that the Court has distorted the Charter
framework in ways that encourage aggression, but also that in its legal analysis
getting there, the Court has departed from the high quality of legal
craftsmanshp one expects of the Court. Finally, the Article urges that, given the
central importance of the normative princples of jus ad bellum, foreign offices
need to engage more openly and vocally in supporting the core Charter princjples
against aggression.
* Walter L. Brown Professor of Law and Director of the Center for National Security Law at the
University of Virginia. Formerly, he served as Counselor on International Law to the United States
Department of State, United States Ambassador to the Third United Nations Conference on the Law
of the Sea, Chairman of the National Security Council Interagency Task Force on the Law of the Sea,
and Chairman of the Board of the United States Institute of Peace. Of relevance to the Nicaragua
case, he served as Deputy Agent for the United States during the jurisdictional phase of the case and
argued several of the admissibility grounds before the Court. The author would like to thank Zachary
Gutterman and Joel Sanderson, who worked as student assistants on this project.

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