The terms "war" and "state of war" in the concept of jus post bellum

Abstract

The study examines the normative indeterminacy of the term war in contemporary international law through the prism of the concept of jus post bellum. It analyzes international legal instruments governing armed conflict, aggression, and legal responsibility for violations of international law and establishes that none of these instruments provides a legal definition of war. The article argues that the displacement of the term war by the concepts of aggression and armed conflict after the Second World War represents a conceptually incomplete transformation that gives rise to both theoretical and practical problems in international law. The reseach demonstrates that aggression constitutes a unila­teral act attributable to a state, whereas war repre­sents a legal condition of at least bilateral interstate relations involving the use of armed force in the pursuit or defence of state interests. The evolution of doctrinal approaches to the definition of war is traced from the classical natural-law tradition represented by Augustine, Thomas Aquinas, Francisco de Vitoria, Francisco Suárez, and Hugo Grotius, through the codification-oriented approaches of Lassa Oppenheim and Hersch Lauterpacht, to the contemporary scholarship of Yoram Dinstein, Antonio Cassese, Marko Milanović, Carsten Stahn, Brian Orend, Larry May, and Gary Bass. The article demonstrates that the normative asymmetry in the development of the three components of just war theory as jus ad bellum, jus in bello, and jus post bellum, constitutes a structural source of terminological indeterminacy. Unlike jus in bello, which has been institutionalized through international humanitarian law, jus post bellum remains predominantly a doctrinal construct. The article further establishes that contemporary international law functionally distributes the legal characterization of interstate armed confrontation among the categories of use of force, aggression, armed conflict, occupation, and other specialized legal regimes. Aggression characterizes conduct attributable to a particular state, whereas the legal categories of war and state of war encompass, respectively, the broader political-legal condition and the international legal status of interstate relations. It is argued that the absence of a universal status-based legal framework defining the legal commencement, existence, and termination of such a condition creates additional normative uncertainty in the development of the legal framework for post-war settlement and recovery (jus post bellum). Finally, in the context of the relationship between international and constitu­tional law, the article examines the implementation of the relevant provisions of the Constitution of Ukraine and the Law of Ukraine On the Defence of Ukraine concerning the categories of state of war, martial law, and wartime. The analysis demonstrates that Ukrainian legislation does not provide a norma­tive definition of the concept of state of war.