Indifferent Wars in International Law? A Hypothesis on Benedetto Conforti’s Legacy Twenty Years Later

In an article that appeared in Volume XII (2002) of the IYIL, Benedetto Conforti discussed the quandary of “just wars” in contemporary international law, wondering whether – and on which conditions – wars conducted outside the UN framework can be considered “just”. On that occasion, Conforti unearthed a thesis that he had decades prior put in writing in the first edition of his famous Manuale, according to which any use of force performed outside the UN Charter could not be evaluated legally, for it pertained to the realm of “legal indifference”. He thus concluded that, when it comes to assessing the “justness” of wars, the answer can be given only by taking stock of moral considerations, that is by resorting to “natural law”. The present contribution aims to appraise this provoking position expressed at the beginning of this millennium. It is argued that resort to the category of legal indifference must not be appraised from a purely philosophical standpoint, but rather in two complementary ways: first, as implying that the justness of any war cannot be decided on the basis of positive law; second, as a metalegal tool to comprehend and describe fundamental changes in the international community. Conforti’s theory of legal indifference vis-à-vis the justness of wars maintains its fascinating quality and utility today.