POLI SCI - USE OF FORCE

Jus ad bellum

International law that regulates the initiation of armed conflict

Prohibiting Force - Military Necessity

Force is only lawful if it is necessary to achieve a legitimate military objective

• Do you have a legitimate reason to use force?• Can other alternatives allow you to achieve your goal?

Caroline Dispute

- Ship crossing from US toCanada to support rebels

- Canada captures ship on US territory and destroys it

Caroline Test - Daniel Webster (1841)

Daniel Webster (1841): UK must prove a "necessity of self-defence,instant, overwhelming, leaving no choice of means, and no moment ofdeliberation"

Caroline Test - "instant"

Immediate need to act

Caroline Test - "Overwhelming"

Important state interest

Caroline Test - "no choice of means and no moment of deliberation"

Can't achieve objective in other ways

Prohibiting Force - Proportionality

Force must be commensurate with a state's objectives

• How much harm will an attack cause?

• How much benefit will it bring?

Movement to Prohibit War - Hague Conventions of 1899 and 1907

• Peaceful settlement of disputes via arbitration• Must declare war before hostilities

Movement to Prohibit War - League of Nations Covenant of 1919

• Mandatory procedures and waiting period• Sanctions regime for violations

Pact of Paris (1928)

• Also known as Kellogg-Briand Pact

• "condemn recourse to war for the solution of internationalcontroversies, and renounce it, as an instrument of national policy"

• "the settlement or solution of all disputes ... shall never be soughtexcept by pacific means."

UN Charter, Article 2(4)

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

What is a "Use of Force"?

• US goes into Pakistan to kill Osama Bin Laden?

• Israeli soldier accidentally crosses into Lebanon while trimmingtrees?

• Russia poisons a defector in the UK?

Prohibiting "Intervention" - UNGA Declaration on Friendly Relations (1970)

• "No State ... has the right to intervene ... in the internal or external affairs of any other State."

• "no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife"

• Article 39

"The Security Council shall determine the existence of any threat to the peace, breachof the peace, or act of aggression and shall make recommendations, or decide whatmeasures shall be taken ... , to maintain or restore international peace and security.

• Article 42

• "Should the Security Council consider that [non-forcible] measures ... would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces ...

Important UNSC Provisions

Þ No clear ability to authorize force.

Þ But now accepted as "evolutionary" interpretation of its authority

Important UNSC Provisions - Example

Resolution 1973 (2011):

"Authorises member states ... to take all necessary measures ... to protectcivilians and civilian populated areas under threat of attack in" Libya

Prohibits "a foreign occupation force of any form"

Source: www.foreignpolicy.com

Politics of UNSC Authorization

• Broad interpretation of "threat to the peace"

• Decisions not bound by law

• Authorization most likely when least needed (when powerful statesagree)

• Intentional ambiguity

Politics of UNSC Authorization - Example

ISIL in 2015

• UNSC Resolution 2249 asks states:

"to take all necessary measures, in compliance with international law,in particular with the United Nations Charter, ... on the territory underthe control of ISIL ... in Syria and Iraq."

Self-Defense Under the UN Charter

Article 51

"Nothing in the present Charter shall impair the inherent right ofindividual or collective self-defence if an armed attack occurs against aMember of the United Nations ... Measures taken by Members in theexercise of this right of self-defence shall be immediately reported tothe Security Council ...

Responding to Armed Attacks: GravityThreshold

Use of force onlyqualifies as an "armedattack" (under the lawof self-defense) if it issufficiently severe

Procedures of Collective Self-Defense

• Report all instances of self-defense to UNSC

• Declare victim of armed attack

• Request assistance (publicly)

• Timeliness

Humanitarian Intervention Principles

• Common in 19th century

• Europeans used force to protect Christians in non-Western territories

• Revival in the 1970s

• Ex: India invades East Pakistan (Bangladesh)

• Ex: Vietnam invades Kampuchea (Cambodia)

• Ex: Tanzania invades Uganda

Humanitarian Intervention - Post-Cold War Examples

• 1990: ECOWAS intervention in Liberia

• 1991: "no-fly zones" in northern and southern Iraq

• 1999: NATO in Kosovo• "responsibility to protect"

Responsibility to Protect(?)

(1) every state has responsibility to protect its population from severeviolations of human rights and humanitarian law; and

(2) failure to meet this responsibility can trigger force by theinternational community

Intervention in Civil Wars - Can states legally support opposition?

NO

Intervention in Civil Wars - Can states legally support government?

Maybe

Negative equality doctrine - Definition

• states must remain neutral during civil wars

• can only offset outside assistance from other states