The Interplay between Law and Morality in connection to the Equal Application Principle

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Title: The Interplay between Law and Morality in connection to the Equal Application Principle
Author: Moinet, Jean Paul
Other contributor: Helsingin yliopisto, Oikeustieteellinen tiedekunta
University of Helsinki, Faculty of Law
Helsingfors universitet, Juridiska fakulteten
Publisher: Helsingin yliopisto
Date: 2017
Language: eng
Thesis level: master's thesis
Discipline: Kansainvälinen oikeus
International law
Abstract: This thesis deals with international humanitarian law and, more in particular, with the interplay between law and morality in connection to the equal application principle. My assumption is that this principle is of paramount importance for the effectiveness of international humanitarian law and I will argue that this principle is jeopardized by the comeback of just war thinking. I will approach this issue mainly from an historical point of view. Accordingly, I will, firstly, analyse the history of the relation between ius ad bellum and ius in bello emphasizing the reasons that can explain why the decline of the just war theory (intended here as a set of ius ad bellum criteria) allowed the emergence of modern ius in bello (“modern” to the extent that it is characterised by the equal application principle). I will, secondly, analyse the gradual widening of the scope of the claims that call for an abandonment of the equal application principle; significantly enough those claims in the aftermath of the Second World War were concerning only some provisions of international humanitarian law, those that do not have a humanitarian character, while nowadays such claims are concerning some of the most important principles of international humanitarian law, as the prisoner of war status. My purpose is, therefore, to show that the just war theory was envisaging ius ad bellum prohibitions rooted in morality in the lack of positive law prohibitions; given that this theory was rooted in morality, it gave a decisive weight on the justness of the belligerent parties and, accordingly, the just party had no ius in bello obligation and the unjust party had no ius in bello rights. Nowadays, there are positive ius ad bellum prohibitions and positive ius in bello rules and the respective legal instruments refrain to resort to morality as a criterion of legality. A comeback of just war thinking would integrate in this positive law framework an alleged moral content and would jeopardize international humanitarian law itself, given that the equal application principle if of fundamental importance for the effectiveness of this branch of international law.

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