L8 - IL on the use of force Flashcards
(18 cards)
into
jus ad bellum - when can states lawfully go to war
next lecture = int’l humanitarian law / law of armed conflict is on jus in bello = how is war to be lawfully waged once it has broken out?
- jus in bello has to be followed whether the war is in conformity with jus ad bellum or not
jus ad bellum
+ paradoxes
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 war is in conformity with jus ad bellum or not
= once you are at war, what are you allowed to do?
*even if decision was illegal, you still have to follow jus in bello (e.g. no doubt Russia’s invasion of Ukraine is illegal in terms of jus ad bellum, but still it has to follow jus in bello, it still can’t do war crimes)
jus ad bellum based on 2 paradox:
- paradox: modern IL aims to eliminate war, yet it also regulates and thus legitimizes certain wars (if there is a thing as illegal war, there must be a form of legal war, if some causes are illegal, there must be legal causes)
- paradox: if all states observe scrupulously jus ad bellum as it exists, inter-state war should in theory be impossible
*paradox also count for jus in bello (if killing can be illegal if x, it must be legal if y)
history IL and use of force
historically, war normal instrument of the state “politics by other means” (Clausewitz)
Instead, theologians (mostly) tried to define distinguish between ‘just’ and ‘unjust’ wars, both in motivation and in conduct
just war theory: encompass both jus ad bellum and jus in bello
- antecedents found in European and non-European civilizations alike
the rise of the Westphalian system is generally associated with the decline of the just war tradition - sovereign states had no judges of their righteousess of their actions but themselves
- only sovereign can judge if a war is just (fits with transition natural law to positive law, bc just war theory is really infused with natural law, with normativeness)
-> IL 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
- if you want war, you have to declare it
- e.g. Pearl Harbour: sent telegram an hour before it bombed the US, which seems okay, but it was in code, so was not decoded in time -> was frowned upon (seen as below civilization)
- regulates the mechanics of war
- neutrals have certain rights and duties: can’t help
- how to treat prisoners etc.
just war theory
encompass both jus ad bellum and jus in bello
- antecedents found in European and non-European civilizations alike
- theologians (mostly) tried to define distinguish between ‘just’ and ‘unjust’ wars, both in motivation and in conduct
Saint Augustine (AD 354-430): war justifiable when it is used to punish wrongdoers who refuse to make amends
- war justifiable as punishment/rectification for bad behavior
Saint Thomas Aquinas (1225-1274): very influential articulator of just war theory. war is just if and only if:
- waged on the command of the rightful sovereign (not some rebel, some usurper, it has to be authorized by a rightful authority, true king)
- waged for just cause, bc 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 (core of jus in bello)
just war theory mostly attributed to Aquinos, he made distinction jus ad bello and jus in bello
history IL on the use of force - the LoN
did not make war illegal, but provided for:
(basically created more paperwork for war)
- the submission of disputes that might lead to war to arbitration or judicial settlement or inquiry
- if you can provide reliable mechanisms for settlements of dispute, they will be less likely to go to war - provided for a 3-mont cooling-off period after the above and before war could be declared
- have to wait for 3 months before actually being allowed to go to war
- probably not ever used in practice
modern law on the use of force by states
- UN
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.”
- i.e.: use of force and threat of use of force + conquering territory is bad = bad
two exceptions:
(the only 2 legal grounds to go to war today)
- self-defence
- e.g. used to justify US war on Afghanistan after 9/11 - UNSC-authorized (military) action
(states also use excuse that something is not a state, that something is their territory, e.g. Kuwait)
modern law on the use of force by states
1970 UNGA Res
Declaration on Principles of International Law (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 int’l disputes
- states must have a duty to refrain from reprisals involving use of force
- state 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
(UNGA resolutions are at best very soft law)
(this one seen as very controversial by states)
modern law on the use of force by states - the substance of the two exceptions
self-defence
Art 51 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 […]
- right to self defense doesn’t come from UN Charter, it is inherent right
- self-defense can be individual and collective (if someone invades you, you and your friends are allowed to fight back)
- until UNSC takes action, or if it doesn’t you can go on forever
- you have to tell the UNSC you have declared war bc self-defence
In Nicaragua v US 1986: ICJ found that self-defence was both an inherent part of customary IL and a right under the UN Charter
- Nicaragua sued the US for using force against it by supporting anti-gov rebels and mining harbours
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 of self-defence, such as when the attacks are by armed bands, rebels etc.
- US never used force directly, question was if it gave weapons to groups that tried to overthrow the gov, and what exactly this would mean
- if US gives weapons used to attack the gov of Nicaragua, it violates Art 2(4), but this does not justify Nicaragua bombs Texas = not every violation to Art 2(4) gives right to self-defense
-> what is the threshold for an attack that would trigger the right to self-defence? = not clear
-> what about terrorism? non-state actors? non-state actors hosted by states?
most controversial
-> what about anticipatory/pre-emptive self-defence? [NOT preventive war]
- preventive war is illegal, threat of invasion needs to be immanent
the Caroline test:
- necessity: threat is imminent and thus pursuing peaceful alternatives is not an option
- proportionality: response must be proportionate to the threat
Caroline test
What about anticipatory/pre-emptive self-defence? [NOT preventive war]
- 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 C19
- e.g. if there were riots in a county that threatened the property of investors -> reason to go to war (no longer seen this way)
current legal position = controversial:
- property abroad = no
- nationals abroad = possibly (state practice says it is basically tolerated to rescue nationals abroad by force)
*there is a threshold
modern law on the use of force by states - collective self-defense
Is it merely the sum of its parts (all parties’ individual self-defense) or something new? State practice suggests the latter
- bc countries engaged in collective defense usually are not subject of any harm themselves (e.g. if Poland is attacked by Russia, it doesn’t affect Portugal, but bc it is in NATO it is tied to collective self-defense)
ICJ in Nicaragua: lawful, but two caveats:
- only if as a result of attack on state
- if that state has sought help (if a state is attacked but doesn’t ask for help, you can’t jump in)
- e.g. US in Afghanistan asked NATO for help -> made collective self-defense lawful
Modern law on the use of force by states - UNSC
Art 24 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.”
- measures short of use of force
Article 42 (Chapter 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
- says UNSC can authorize use of force, without mentioning force itself
modern law on the use of force by states - UNSC historically
rarely invoked due to the P5 veto
instances are
1950 Korea
- North Korea invaded South Korea -> fought against North Korea
- UNSC able to authorize this bc SU was absent from the vote (was boycotting the UNSC bc subjected to ROC as Chinese gov)
1990 Kuwait
- Iraq claimed it was a Iraqi province -> UNSC authorized military intervention against Iraq, kicked it out in about 4 days
2011 Libya
- resolution against Gaddafi (civil war in Libya)-> authorized bombing by air
modern law on the use of force by states - in 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 (self-defense and UNSC authorization)
The rules surrounding the exceptions in particular are open to interpretation
humanitarian intervention - a controversial topic
= one of the major controversies surrounding the use of force by states today
controversy illustrates tensions within the
- overarching goals of the international system (prevent war, protect human rights)
- the difficulty with the development of customary international law,
- the inherent political nature of judgments in the field of use of force
proponents: it allows for effective protection of human rights, in line with aspirations of the UN Charter, UNDHR etc.
critics: humanitarian intervention is merely an excuse by (usually) Western states to intervene militarily against (usually) non-Western states
definition humanitarian intervention
no agreed definition (‘humanitarian’ is loaded), but generally taken to mean:
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
- 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 moties
*many examples of military interventions in history with an ostensibly humanitarian motive (Russia claims to do humanitarian intervention in Ukraine, everyone thinks it is bullshit, but who is to say?)
popularity humanitarian intervention usually tracks with the salience of human rights
- 1990s very popular at least in the Western world, after Libya a lot less popular
!!! humanitarian intervention also known as R2P (responsibility to protect)
typical example: can we use force to stop a genocide
humanitarian intervention - case study: NATO intervention in the former Yugoslavia
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 resolutions
NATO decided to intervene militarily nevertheless, bombing Belgrade for 10 weeks
NATO justified intervention on the grounds that it was necessary for the preservation of regional stability AND to end the humanitarian crisis in the region
UNSC did not authorize the intervention; but a Russian resolution to urge the cessation of the bombing campaign failed 3-12
- it was against the UN Charter, but was not really condemned = grey area
Independent International Commission on Kosovo (1999) convened by the prime minster 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 humanitarian intervention?
An emerging doctrine of customary international law?
- but norm against use of force is a jus cogens norm -> custom can’t overrule this
An attempt to undermine the post-1945 international order of sovereign states?
Yuan: morally justified, legally illegal
