8 - International Law on the Use of Force | Quizlet

What does jus ad bellum refer to?

When states can lawfully go to war.

What does jus in bello refer to?

How is war to be lawfully waged once it has broken out?

Is compliance with jus in bello dependent on the legality of the war under jus ad bellum?

No, parties must comply with jus in bello even if the war violates jus ad bellum.

= Even if the decision to go to war was illegal, you still have to follow jus in bello, you can't just start doing war crimes

What are the two core paradoxes jus ad bellum is based on?

1) International law seeks to eliminate war yet it also regulates - thus legitimizes some wars.

2) If all states followed jus ad bellum, inter-state war would be impossible.

How was war viewed historically?

As a normal tool of state policy—"politics by other means."

What was the role of theologians in war theory?

They tried to define and distinguish just and unjust wars based on motivation and conduct.

What was Saint Augustine's idea of a just war?

War is justifiable when it is used to punish wrongdoers who refuse to make amends

What are the three criteria for a just war according to Saint Thomas Aquinas?

Wars are just if and only if:

1. waged on the command of the rightful sovereign (lawful authority)

2. waged for just cause because of some wrong by the other party

3. waged with the right intent

What does Saint Thomas Aquinas tries to emphasizes?

Wars permissible as last resort only, and violence used only to the extent necessary (core of jus in bello)

How did the Westphalian system change the approach to war?

It moved from just war theory to sovereign regulation of war, removing external judgment.

After Westphalia, what it law regarding war focused on?

It focused on regulating the legal framework within which war took place (the rules to be followed)—declarations of war (send a message - surprise attacks where considered to be BADDD), rights and obligation of neutrals (cannot help a belligerent), naval prizes, etc. as well as the laws of war.

What was the League of Nations' approach to preventing war?

It didn't make war illegal but it - Encouraged arbitration and judicial settlement.

- Provided a 3-month cooling-off period before war.

What does Article 2(4) of the UN Charter prohibit?

The threat or use of force against the territorial integrity or political independence of any state.

What are the two exceptions to Article 2(4)?

Self-defence and UN Security Council-authorized actions.

What does the 1970 Declaration on Principles of International Law state about war?

Wars of aggression are a crime against peace

States must not use or threaten to use force to violating existing boundaries nor to solve international disputes

States have a duty to refrain from reprisals involving the use of force

State must not use force to deprive people of self-determination & independence

States must not help or encourage civil strife or terrorism or armed bands in other states' territories

What is Article 51 of the UN Charter about?

It affirms the inherent right of self-defence (both individual and collective) if an armed attack occurs.

What is collective self-defence?

When one state helps another defend against an armed attack, with the attacked state's consent.

What did the ICJ decide in Nicaragua v. United States (1986)? What were the consequences?

Self-defence is both a customary law and Charter right, but not every Article 2(4) violation justifies self-defence.

This is problematic because it creates asymmetries. The prohibition of the use of force and the right of self-defense are not evenly matched

What is pre-emptive self-defense?

The right to use offensive military force against a target that does not yet, but may in the future, pose a threat.

e.g. neighbor said they will bomb in 6 hours so you bomb them before

What is preventive war?

An armed conflict "initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk."

e.g. you don't like that they are getting so strong so you bomb them (that's illegal)

What is the Caroline test?

A test to decide if it's lawful to engage in pre-emptive self-defence with 2 components:

Necessity (imminent threat)

Proportionality (response must be proportionate to the threat).

IF both are satisfied, then it’s lawful to do pre-emptive self-defense

Can states use force to protect property abroad under modern international law? What about nationals abroad?

No, protection of property abroad by force is not accepted today but it used to be in the 19th century.

However for people, under some circumstances, you can rescue your nationals abroad using force.

What is Article 24 of the UN Charter?

Highlight the role of the UNSC which is to maintain international peace and security in the name of all Members.

What is the role of Article 42 of the UN Charter?

It allows the Security Council to authorize the use of force to maintain or restore international peace if peaceful measures fail.

What are historical examples of UNSC-authorized force?

Korean War (1950) - protect South Korea from North Korean attack

Gulf War (1990) - help Kuwait against Iraq

Libya intervention (2011) - protect population against repression from Gaddafi

What is humanitarian intervention?

There is no agreed definition but generally means:

1. Threat of or use of force

2. In another state which has not committed an act of aggression against the intervening state(s)

3. Motivated by humanitarian motives.

What are the arguments in favor and against humanitarian interventions?

To its proponents, humanitarian intervention allows for the effective protection of human rights, in line with the aspirations of the UN Charter, UDHR, etc

To its critics, humanitarian intervention is merely an excuse by (usually) Western states to intervene militarily against (usually) non-Western states

What was controversial about NATO's intervention in Yugoslavia? What happened?

It was not authorized by the UNSC but justified on humanitarian and regional stability grounds.

The Federal Republic of Yugoslavia was committing ethnic cleansing against its Albanian population. NATO countries sought UNSC permission to intervene, but Russia and China indicated they would veto the necessary resolution. NATO decided to intervene militarily nevertheless, bombing Belgrade for 10 weeks.

What was the Independent International Commission on Kosovo's verdict on NATO's intervention?

It was "illegal but justified."

What did the International Commission on Intervention and State Sovereignty propose?

That states have a right and indeed duty to intervene militarily for humanitarian reasons under certain conditions.

What big idea the discussions after NATO's intervention in former Yugoslavia?

R2P, which was endorsed at a UN summit in 2005, but with the proviso that UNSC approval was required...