IL on the use of Force Flashcards
(38 cards)
What is jus ad bellum?
When can states lawfully go to war?
What is jus in bello?
How is war to be lawfully waged once it has broken out?
How does jus in bello connect with jus ad bellum?
Jus in bello has to be followed whether the law is in conformity with jus ad bellum or not
Paradox of jus ad bellum + jus in bello
- Modern international law aims to eliminate war, yet it also regulates - and thus legitimizes - certain wars
- If all states observe scrupulously jus ad bellum as it exists, interstate war should in theory be impossible
How was war viewed in history?
Historically war was a normal instrument of the state - “politics by other means” cf. Clausewitz
How did a just theory of war come about?
Theologians (mostly) tried to define, distinguish between “just” and “unjust” war, both in motivation and in conduct
What is the just war theory?
It encompasses both jus ad bellum and jus in bello
- Anticedents found in European and non-European civilizations alike
– Although modern system largely influenced by European opinion
Saint Augustine (CE 354-430) ideas on just war
War justifiable when it is used to punish wrongdoers who refuse to make amends
Saint Thomas Aquinas (1225-1257) ideas on just war
Very influential articularot 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
War was permissible as last resort only, and violence used only to the extent necessary
Just war tradition following Westphalia
- The rise of the Westphalian system is generally associated with the decline of the just war tradition - sovereign states had no judges of the righteousness of their actions but themselves
- Instead, law focused on regulating the legal framework within which war took place - declarations of war, rights and obligations of neutrals, naval prizes, etc. as well as the laws of war
What did the League of Nations provide for in terms of rights to wage war?
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
What does the United Nations Article 2(4) control?
Law on the use of war by states
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
Two (/three) exceptions to UN Article 2(4)
- Self-defence
- UNSC-authorized action
(- None of this applies to what the UN are doing against the Axis since the Article was created post-WW2)
1970 Declaration on Principles of International Law (UNGA Resolution 2625)
- Wars of aggression are a crime against peace
- States must not use or threaten to use force to violate existing boundaries nor to solve international disputes
- States have a duty to refrain from reprisals involving the use of force
- States must not use force to deprive people of self-determination and independence
- States must not help or encourage civil strife or terrorism or armed bands in other states’ territories
What does UN Article 51 (of the Charter) cover?
Self-defence
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
Example of the use of self-defence
- 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 Article 2(4) may not give rise to the right to self-defence, such as when the attacks are by armed bands, rebels, etc.
Concerns/questions arising from the right to self-defence
- What is the threshold for an attack that would trigger the right to self-defence?
- What about terrorism? Non-state actors? Non-state actors hosted by states?
What are the guidelines on anticipatory/pre-emptive self-defence?
The Caroline test
- Necessity
– Threat is imminent and thus pursuing peaceful alternatives is not an option
- Proportionality
– Response must be proportionate to the threat
Does self-defence 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
What are the opinions around collective self-defence?
- 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
Article 24 of the UN Charter
… 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
Article 42 (Chapter VII) UN Charter
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
