L8: IL on use of force

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?

• has to be followed whether the war is in conformity with jus ad bellum or not

jus ad bellum paradox

1. Paradox: modern international law aims to eliminate war, yet it also regulates-and thus legitimizes-certain wars

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

History: Clausewitz vs theologians

• Historically, war was a normal instrument of the state-"politics by other means", cf Clausewitz

  • To many people, the purpose of states was to wage war

    • War made state, state made war

    • Needed to conduct war

• Instead, theologians (mostly) tried to define distinguish between 'just' and 'unjust' wars, both in motivation (Jus ad bellum) and in conduct (Jus in bello)

History: just war theory

encompasses both jus ad bellum and jus in bello

• Antecedents found in European and non-European civilizations alike

History: Saint Augustine

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

History: Saint Thomas Aquinas

• (1225-1274): very influential articulator of just war theory.

• Wars are just if and only if:

  • waged on the command of the rightful sovereign

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

  • waged with the right intent

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

History: Rise of Westphalian

• The rise of the Westphalian system is generally associated with the decline of the just war tradition-sovereign states had no judges of their righteousness of their actions but themselves

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

  • Mechanics of war

History: League of Nations

• Did not make war illegal, but provided for

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

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

  • Created more paperwork for war

Modern law on use of force: UN 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."

Modern law on use of force: UN 2 exceptions

• self-defense

• UNSC-authorized action

Modern law on use of force: 1970 Declaration of Principles of IL

(UNGA Res 2625)

• 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

*soft law

Modern law on use of force: self-defense article 51 of the UN charter

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council [...]

Self-defense: Nicaragua vs US

• In Nicaragua v United States (1986), the ICJ found that self-defence was both an inherent part of customary international law and a right under the UN Charter

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

• Question was if the US was giving weapons to rebel groups, what does that count as?

  • US isn’t directly attacking/invading

• Grey area of law

  • Article 2(4) violation of US giving weapons to rebel groups but does this give Nicaragua the right to bomb Texas? No

  • They also don’t really have to resources to

•  Article 2(4) and right to self-defense are not equally matched/mirrored

What is the threshold for an attack that would trigger the right to self-defense?

• One person going to the border and shooting 3 people at border is not the threshold for self-defense

• Is the threshold:

  • How many are killed?

  • Type of attack?

  • Etc..?

• Answer: we don’t really know —> grey zone

• what about terrorism? Non-state actors? Non-state actors hosted by states?

Self-defense: Caroline test

what about anticipatory/pre-emptive self-defense

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

• Proportionality: response must be proportionate to the threat

Does self-defense extend to the protection of nationals and property abroad?

• Commonly accepted in the 19th century

• The current legal position is controversial

  • property abroad: no

  • nationals abroad: possibly

Collective self-defense

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

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

Modern law on use of fore: UNSC article 24

"[...] its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf."

Modern law on use of force: UNSC article 42 (Ch. VII)

"Should the Security Council consider that measures provided for in Article 41 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 of Members of the United Nations.

Modern law on use of force: UNSC rarely invoked

Historically, rarely invoked due to the P5 veto. Instances are:

1950: Korea

1990: Kuwait

2011: Libya

Modern law on use of force by states: summary

• The use or threat of armed force by states is illegal at international law (both customary and under the UNSC) subject to two important exceptions

• The rules surrounding the exceptions in particular are open to interpretation

Use of force controversy

humanitarian intervention

• it illustrates tensions within the overarching goals of the international system, the difficulty with the development of customary international law, as well as the inherent political nature of judgments in the field of use of force

Humanitarian intervention

• Use of force or threat of use of force;

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

• Motivated by humanitarian motives

*No agreed definition ('humanitarian' is loaded)

Humanitarian intervention or military intervention

• There are many examples of military interventions in history with an ostensibly humanitarian motive

  • Can you use military force against a genocide? Controversial

• Its popularity usually tracks with the salience of human rights

  • Russia is claiming they are doing a humanitarian intervention in Ukraine for the Russian speaking Ukrainians

Humanitarian intervention: Proponents vs critics

• 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

The people that created humanitarian intervention after WW2 wanted to protect human rights and had good intentions —> however critics see it as something western counties use to justify intervening in non-western states

• Coloniality

Humanitarian intervention: case study NATO intervention in former Yugoslavia background

• 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

Humanitarian intervention: case study NATO intervention in former Yugoslavia justification

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

  • Legal grey area

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

Humanitarian intervention: case study NATO intervention in former Yugoslavia reaction

• Independent International Commission on Kosovo (1999), convened by the prime minister of Sweden, found that the intervention was "illegal but justified"

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

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

Is human intervention…?

• an emerging doctrine of customary International law?

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