Lecture 8 - International Law on the Use of Force

Introduction to jus ad bellum (3)

• Jus ad bellum—when can states lawfully go to war?

• Jus in bello—how is war to be lawfully waged once it has broken out?

• Jus in bello has to be followed whether war is in conformity w jus ad bellum or not

Jus ad bellum - Paradox (2)

• Paradox: modern int law aims to eliminate war, yet it also regulates + thus legitimizes certain wars

• Paradox: if all states observe scrupulously jus ad bellum as it exists, inter-state war should in theory be impossible

History - war (2)

• Historically, war was a normal instrument of state—pol by other means - Clausewitz

• Instead, theologians (mostly) tried to define/distinguish between ‘just’ + ‘unjust’ wars, both in motivation + in conduct

Just war theory (2)

• Encompasses both jus ad bellum + jus in bello

• Antecedents found in European + non-European civilizations alike

Antecedents found in European + non-European civilizations alike (3)

• Saint Augustine (AD 354–430): war justifiable when it is used to punish wrongdoers who refuse to make amends

• Saint Thomas Aquinas (1225–1274): very influential articulator of just war theory. Wars are just if + only if:

• Wars permissible as last resort only, + violence used only to the extent necessary

Saint Thomas Aquinas (1225–1274): very influential articulator of just war theory - wars are just if + only if (3)

• waged on command of rightful sovereign

• waged for just cause, bcs of some wrong by other party

• waged w right intent

History - War + Westphalia (2)

• Rise of Westphalian system is generally associated w decline of just war tradition—sovereign states had no judges of their righteousness of their actions but themselves

• Instead, law focused on regulating legal framework within which war took place —declarations of war, rights + obligation of neutrals, naval prizes, etc. as well as laws of war

History - League of Nations (3)

• Did not make war illegal, but provided for

  • Submission of disputes that might lead to war to arbitration or judicial settlement or inquiry

  • Provided for a 3-month cooling-off period after above + before war could be declared

Modern law on the use of force by states (2)

• The United Nations

• 1970 Declaration on Principles of international law (UNGA Res 2625)

The United Nations (2)

• Article 2(4): “All Members shall refrain in int rels from threat or use of force against territorial integrity or pol indep of any state, or in any other manner inconsistent w Purposes of UN

• TWO exceptions: self-defence + UNSC-authorized action

1970 Declaration on Principles of international law (UNGA Res 2625) (5)

• Wars of aggression are a crime against peace

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

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

• State must not use force to deprive ppl of self-determination & indep

• States most not help or encourage civil strife or terrorism or armed bands in other states’ territories

Modern law on the use of force by states—self-defence (2)

• Article 51 of UN Charter

• Nicaragua v United States (1986)

Article 51 of UN Charter (2)

• Nothing in Charter shall impair inherent right of indi or collective self-defence if armed attack occurs against Member of UN until SC has taken measures necessary to maintain int peace + security

• Measures taken by Members in exercise of this right of self-defence shall be immediately reported to SC

Nicaragua v United States (1986) (2)

• ICJ found that self-defence was both an inherent part of customary int law + a right under UN Charter

• But according to ICJ’s logic in Nicaragua v US, acts which constitute violations of Art 2(4) may not give rise to right to self-defence, such as when attacks are by armed bands, rebels, etc

Questions that arise around self-defence (4)

• What is threshold for attack that would trigger right to self- defence?

• What about terrorism/non-state actors (backed or not by state)

• What about anticipatory/pre-emptive self-defence

• Does self-defence extend to protection of nationals + property abroad?

Self-defence - The Caroline Test (2)

• Necessity: threat is imminent so pursuing peaceful alternatives is not an option

• Proportionality: response must be proportionate to the threat

Does self-defence extend to protection of nationals + property abroad? (4)

• Commonly accepted in the 19th century

• Current legal position is controversial

  • property abroad: no

  • nationals abroad: possibly

Collective self-defence (2)

• Is it merely sum of its parts or something new? State practice suggests latter

• ICJ in Nicaragua: lawful, but only if as a result of attack on state + if that state has sought help

Modern law on the use of force by states—UNSC (3)

• Article 24 of UN Charter

• Article 42 (Chapter VII)

  • Historically rarely invoked due to P5 veto - Instances are

Article 24 of UN Charter

Members confer on SC primary responsibility for maintenance of int peace + security + agree that in carrying out its duties under this resp SC acts on their behalf.

Article 42 (Chapter VII) (3)

• Should SC consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate?

• SC may take such action by air, sea, or land forces as may be necessary to maintain / restore int peace and security

• Such action may incl demonstrations, blockade + other operations by air, sea, or land forces of Members of UN

Historically rarely invoked due to P5 veto - 3 instances are

• 1950: Korea

• 1990: Kuwait

• 2011: Libya

Summary on use of force (2)

• Use or threat of armed force by states is illegal at international law (both customary + under UNSC) subject to 2 imp exceptions

• Rules surrounding exceptions in particular are open to interpretation

Humanitarian intervention (2)

• One of major controversies surrounding use of force by states today is qs of humanitarian intervention

• Controversy surrounding humanitarian intervention illustrates tensions within overarching goals of int system, difficulty with dev of customary int law + pol nature of judgments in field of use of force

Humanitarian intervention - Definition (4)

• Not agreed on but generally mean

  • Use of force or threat of use of force;

  • In territory of a foreign state which has not committed an act of aggression against intervening state(s);

  • Motivated by humanitarian motives

Humanitarian interventions - Controversies around Military + HR (4)

• There are many examples of mili interventions in history w humanitarian motive

• Its popularity usually tracks w salience of human rights

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

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

Humanitarian intervention - Case Study: NATO intervention in former Yugolsavia

• The Federal Republic of Yugoslavia was committing ethnic cleansing against its Albanian population

• NATO countries sought UNSC permission to intervene, but Russia + China indicated they would veto necessary resolution

• NATO decided to intervene militarily nevertheless, bombing Belgrade for 10 weeks

NATO Intervention in former Yugoslavia - Vote (2)

• NATO justified its intervention on grounds that it was necessary for preservation of regional stability + to end humanitarian crisis in region

• UNSC did not authorize intervention; but a Russian resolution to urge cessation of bombing campaign failed 3-12

NATO Intervention in former Yugoslavia - Afterwards (3)

• Independent int Commission on Kosovo (1999), convened by prime minister of Sweden, found that intervention was “illegal but justified”

• Int Commission on Intervention + State Sovereignty (2000), convened by Canada, concluded that states had right (+ duty to intervene) militarily for humanitarian reasons if certain requirements were fulfilled

• R2P was endorsed at UN summit in 2005, but w proviso that UNSC approval was required…

Is humanitarian intervention? (2)

• An emerging doctrine of customary international law?

• An attempt to undermine post-1945 international order of sovereign states?