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Abstract

War has forever been considered the utmost necessary evil. Nevertheless, international law has for some time sought to limit the right to wage war (jus ad bellum), as well as the means and methods employed amid war (jus in bello). Although these two branches of law now share humanitarian purposes the prevention of war and its effects -- they have generally been kept separate throughout history. However, confronted with widespread violations of jus in bello, resulting in appalling humanitarian disasters, some have suggested amending their relationship. This was notably sought at the Nuremberg Trials, where prosecutors failed to contend that jus in bello was inapplicable due to the illegal use of force by Germany. More recently, calls are being made to grant the "legitimate" belligerent more leeway in their application of jus in bello when responding to terrorism and the increasing use of lawfare (abuse of jus in bello to achieve strategic military or political ends). The ICC, as the only permanent criminal court with potentially worldwide jurisdiction, would be best suited to reconsider the relationship between jus ad bellum and jus in bello, potentially discriminating against the illegal belligerent in its assessment of proportionality in attack. In response to these calls for "aggressor discrimination," this article will demonstrate that the ICC is prohibited from considering jus ad bellum in a war crimes trial, therefore precluding such discrimination. Suggestions of "fighting fire with fire" ignore the very principles and rationale of the two branches of law and put innocent civilians at risk. Lowering the humanitarian bar can surely not be the answer to ultimate humanitarian concerns.

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