Lecture 8

Question 1

What does jus ad bellum mean?

Answer 1

When can states lawfully go to war?

Question 2

Jus in bello

Answer 2

• Jus in bello: how is war to be lawfully waged once it has broken out?
  o Jus in Bello has to be followed whether the war is in conformity with jus ad bellum or not.

Question 3

Paradox 1

Answer 3

IL aims to eliminate war, yet it also regulates and thus legitimizes certain wars.

Question 4

Paradox 2

Answer 4

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

Question 5

History and theologians

Answer 5

• Historically, war was a 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 conduct.
• Wars only permissible as last resort only, and violence used only to the extent necessary.

Question 6

Just war theory

Answer 6

Encompasses both jus ad bellum and jus in bello

Question 7

Saint Augustine (AD 354-430)

Answer 7

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

Question 8

Saint Thomas Aquinas (1225-1274)

Answer 8

very influential articulator of just war theory, wars are just if and only if
o Waged on the command of the rightful sovereign.
o Waged for just cause, because of some wrong by the other party.
o Waged with the right intent.

Question 9

Westphalian system

Answer 9

o 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.
o 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.

Question 10

League of nations

Answer 10

o Didn’t make war illegal, but provided for
 The submission of disputes that might lead to war to arbitration or judicial settlement or inquiry.
 Provided 3 month cooling off period after the above and before war could be declared.

Question 11

UN article 2(4)

Answer 11

“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.”

Question 12

2 exceptions to UN article 2(4)

Answer 12

 Self-defense and UNSC authorized action
 UN doings against axis since it was created post ww2

Question 13

1970 declaration on principles of IL (UNGA res 2625)

Answer 13

o Wars of aggression are a crime against peace.
o States must not use or threaten to use force to violating existing boundaries nor to solve international disputes.
o States have a duty to refrain from reprisals involving the use of force.
o State must not use force to deprive people of self-determination and independence.
o States must not help or encourage civil strife or terrorism or armed bands in other states territories.

Question 14

Article 51

Answer 14

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 […]

Question 15

Nicaragua vs US(1986)

Answer 15

• In Nicaragua vs US (1986) the ICJ found that self-defense was both an inherent part of customary IL and a right under UN charter.
  o 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-defense, such as when the attacks are by armed bands, rebels etc.

Question 16

Nicaragua vs US (1986) questions

Answer 16

o What is the threshold for an attack that would trigger the right to self-defense?
o What about terrorism? Non-state actors? Non-state actors hosted by states?
o What about anticipatory/pre-emptive self-defense (not preventive war)?

Question 17

The Caroline test

Answer 17

o Necessity: threat is imminent and thus pursuing peaceful alternatives is not an option.
o Proportionality: response must be proportionate to the threat.

Question 18

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

Answer 18

o Commonly accepted in the 19th century.
o The current legal position is controversial.
 Property abroad = no
 Nationals abroad = possibly

Question 19

Collective self defense

Answer 19

o Is it merely the sum of its parts or something new? State practice suggests the latter.
o ICJ in Nicaragua: lawful, but only if as a result of attack on state and if that state has sought help.

Question 20

Article 24 UN Charter

Answer 20

“[…] 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.”

Question 21

Article 42 (Chapter VII)

Answer 21

“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.”

Question 22

Do articles 42 and 24 get invoked often?

Answer 22

• Historically, rarely invoked due to the P5 veto, instances are
  o 1950 Korea (unique case, only time UN deployed military force under its own flag), 1990 Kuwait (American led effort, UN members sent cash instead of troops), 2011 Libya.

Question 23

Humanitarian intervention

Answer 23

• No agreed definition, it is a loaded word and generally taken to mean;
  o Use of force or threat of use of force
  o In the territory of a foreign state which hasn’t committed an act of aggression against intervening state(s).
  o Motivated by humanitarian motives.
• There are many examples of military interventions in history with an ostensibly humanitarian motive.
• Its popularity usually tracks with the salience of human rights.

Question 24

Humanitarian intervention proponists

Answer 24

• To its proponents, humanitarian intervention allows for the effective protection of human rights, in line with the aspirations of the UN charter etc.

Question 25

Humanitarian intervention to its critics

Answer 25

• To its critics, humanitarian intervention is merely an excuse by usually western states to intervene militarily against usually nonwestern states.

Question 26

Yugoslavia case study

Answer 26

• 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.
• NATO justified its intervention on the grounds that it was necessary for the preservation of regional stability and to end the ethnic cleansing (humanitarian crisis in the region).
• UNSC didn’t authorize the intervention, a Russian resolution urged the cessation of the bombing campaign failed 3-12.

Question 27

Yugoslavia case study aftermath

Answer 27

o Independent international commission on Kosovo in 1999 convened by the prime minister of Sweden found that the intervention was illegal but justified.
o The international commission on intervention and state sovereignty in 2000 convened by Canada, it concluded that states had the right and duty to intervene militarily for humanitarian reasons if certain requirements were fulfilled.
o R2P was endorsed at an UN summit in 2005, but with the proviso that UNSC approval was required.