Jus ad Bellum Before the International Court of Justice
The norms controlling initiation of military force, or jus ad bellum as traditionally designated in international law, are among the most important normative principles in the international system. As properly understood, they stand firmly 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 briefly 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 analyze the principal 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 craftsmanship one expects of the Court. Finally, the Article urges that, given the central importance of the normative principles of jus ad bellum, foreign offices need to engage more openly and vocally in supporting the core Charter principles against aggression.