international law and_the_use_of_force

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INTERNATIONAL LAW AND INTERNATIONAL LAW AND THE USE OF FORCETHE USE OF FORCE

Professor Ivan ShearerProfessor Ivan Shearer

www.StudsPlanet.comwww.StudsPlanet.com

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Sources of the law on the Sources of the law on the use of armed forceuse of armed force• Customary international lawCustomary international law

• General principles of law common to General principles of law common to nations, e.g. necessity, proportionality, nations, e.g. necessity, proportionality, reasonableness, humanity.reasonableness, humanity.

• ““Just war theory”Just war theory”

• The Kellogg/Briand Pact, 1928The Kellogg/Briand Pact, 1928

• The United Nations Charter, 1945The United Nations Charter, 1945


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Right to use force/law of Right to use force/law of armed conflictarmed conflict• Right to use force is called the jus ad Right to use force is called the jus ad

bellumbellum• Laws governing the manner of Laws governing the manner of

conducting armed operations is conducting armed operations is called the jus in bello (law of armed called the jus in bello (law of armed conflict/international humanitarian conflict/international humanitarian law)law)

• This presentation confined to jus ad This presentation confined to jus ad bellumbellum


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War as an instrument of War as an instrument of national policynational policy

• Failure of the League of Nations to Failure of the League of Nations to outlaw war (League Covenant, 1919)outlaw war (League Covenant, 1919)

• Kellogg-Briand Pact, 1928 declared Kellogg-Briand Pact, 1928 declared war to be inadmissiblewar to be inadmissible

• Germany, Italy and Japan declare war Germany, Italy and Japan declare war 1939-411939-41


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The United Nations Charter, The United Nations Charter, 19451945• A new beginning: “to save A new beginning: “to save

succeeding generations from the succeeding generations from the scourge of war”scourge of war”

• Charter establishes a system of Charter establishes a system of collective security and forbids collective security and forbids unilateral resort to forceunilateral resort to force

• However, preserves the right of self-However, preserves the right of self-defence defence


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Collective SecurityCollective Security

• Consists of three pillars:Consists of three pillars:– Prohibition of use of force (article 2(4))Prohibition of use of force (article 2(4))– Powers of the Security Council to deal Powers of the Security Council to deal

with breaches of the peace or threats to with breaches of the peace or threats to peace (articles 39-42)peace (articles 39-42)

– Reservation of the right of individual and Reservation of the right of individual and collective self-defence until Security collective self-defence until Security Council can act effectivelyCouncil can act effectively


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““War”: Is the word still War”: Is the word still valid?valid?

• The effect of the UN Charter is to The effect of the UN Charter is to abolish the legal significance of the abolish the legal significance of the word “war”.word “war”.

• Instead, the neutral term “armed Instead, the neutral term “armed conflict” is used.conflict” is used.

• Usual now to refer to the jus in bello Usual now to refer to the jus in bello as “the law of armed conflict’ (LOAC)as “the law of armed conflict’ (LOAC)


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The prohibition – article 2(4)The prohibition – article 2(4)

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


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Powers of the Security Powers of the Security CouncilCouncil

• Article 39Article 39– ““The Security Council shall determine The Security Council shall determine

the existence of any threat to the peace, the existence of any threat to the peace, breach of the peace, or act of aggression breach of the peace, or act of aggression and shall make recommendations, or and shall make recommendations, or decide what measures shall be taken in decide what measures shall be taken in accordance with articles 41 and 42 to accordance with articles 41 and 42 to maintain or restore international peace maintain or restore international peace and security.”and security.”


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Powers of the Security Powers of the Security Council (continued)Council (continued)• Article 41Article 41

– ““The Security Council may decide what The Security Council may decide what measures not involving the use of armed force measures not involving the use of armed force are to be employed to give effect to its are to be employed to give effect to its decisions, and it may call upon the Members of decisions, and it may call upon the Members of the United Nations to apply such measures. the United Nations to apply such measures. These may include complete or partial These may include complete or partial interruption of economic relations and of rail, interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other sea, air, postal, telegraphic, radio, and other means of communication, and the severance of means of communication, and the severance of diplomatic relations.”diplomatic relations.”


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Powers of the Security Powers of the Security Council (continued)Council (continued)• Article 42Article 42

– ““Should the Security Council consider that Should the Security Council consider that measures provided for in article 41 would be measures provided for in article 41 would be inadequate or have proved to be inadequate or have proved to be inadequate, it may take such action by air, inadequate, it may take such action by air, sea, or land forces as may be necessary to sea, or land forces as may be necessary to maintain or restore international peace and maintain or restore international peace and security. Such action may include security. Such action may include demonstrations, blockade, and other demonstrations, blockade, and other operations by air, sea, or land forces of operations by air, sea, or land forces of Members of the United Nations.”Members of the United Nations.”


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Self-defenseSelf-defense

• Article 51Article 51– ““Nothing in the present Charter shall Nothing in the present Charter shall

impair the inherent right of individual or impair the inherent right of individual or collective self-defence if an armed collective self-defence if an armed attack occurs against a Member of the attack occurs against a Member of the United Nations, until the Security United Nations, until the Security Council has taken measures necessary Council has taken measures necessary to maintain international peace and to maintain international peace and security….”security….”


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Initial questions about the Initial questions about the aboveabove• 1. Are the words after “use of force” in 1. Are the words after “use of force” in

article 2(4) words of explanation or article 2(4) words of explanation or limitation?limitation?

• 2. “Members”. Are non-members 2. “Members”. Are non-members excluded?excluded?

• 3. Does a parallel right of self-defence 3. Does a parallel right of self-defence exist in customary law, against e.g. exist in customary law, against e.g. terrorist groups? Yes. See Nicaragua case terrorist groups? Yes. See Nicaragua case in ICJ.in ICJ.

• 4. Is there a right of pre-emptive self-4. Is there a right of pre-emptive self-defence?defence?


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Security CouncilSecurity Council

• 15 Members15 Members

• Permanent five with Veto powerPermanent five with Veto power– China, France, Russia, UK, USAChina, France, Russia, UK, USA

• Decisions made binding by Charter, Decisions made binding by Charter, article 25article 25

• Reform proposalsReform proposals– Enlarge to 21, 25? Abolish the Veto?Enlarge to 21, 25? Abolish the Veto?


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The Security Council in The Security Council in action:action:IraqIraq• SECURITY COUNCIL RESOLUTION 660 SECURITY COUNCIL RESOLUTION 660

(2 AUGUST 1990):(2 AUGUST 1990):– ““The Security Council…determining that The Security Council…determining that

there is a breach of the peace by the there is a breach of the peace by the Iraqi invasion of Kuwait…Iraqi invasion of Kuwait…

– 1. Condemns the Iraqi invasion…1. Condemns the Iraqi invasion…– 2. Demands that Iraq withdraw 2. Demands that Iraq withdraw

immediately…”immediately…”


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Security Council Res. 661Security Council Res. 661(6 August 1990)(6 August 1990)• ““The Security Council …decides that all states The Security Council …decides that all states

shall prevent:shall prevent:• (A) the import…of all commodities …originating in (A) the import…of all commodities …originating in

Iraq or Kuwait…Iraq or Kuwait…• (B) any activities by their nationals which … (B) any activities by their nationals which …

promote the export or transshipment of any promote the export or transshipment of any commodities … from Iraq or Kuwait …commodities … from Iraq or Kuwait …

• (C) the sale or supply of any commodities …(C) the sale or supply of any commodities …including weapons or any other military including weapons or any other military equipment …but not including supplies intended equipment …but not including supplies intended strictly for medical purposes, and in humanitarian strictly for medical purposes, and in humanitarian circumstances, foodstuffs, …to Iraq or Kuwait…”circumstances, foodstuffs, …to Iraq or Kuwait…”


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Security Council Res. 665Security Council Res. 665(25 August 1990)(25 August 1990)• ““The Security Council …1. Calls upon The Security Council …1. Calls upon

states …deploying maritime forces to the states …deploying maritime forces to the area to use such measures area to use such measures commensurate to the specific commensurate to the specific circumstances as may be necessary circumstances as may be necessary under the authority of the Security under the authority of the Security Council to halt all inward and outward Council to halt all inward and outward maritime shipping … to inspect and verify maritime shipping … to inspect and verify their cargoes and destinations to ensure their cargoes and destinations to ensure strict implementation of Res. 661.” strict implementation of Res. 661.”


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Security Council Res. 678Security Council Res. 678(29 November 1990)(29 November 1990)• ““The Security Council:The Security Council:

– Recalling and reaffirming its resolutions Recalling and reaffirming its resolutions 660, 661, 662, 664, 665, 666, 667, 669, 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 667,670, 674, and 667,

– Noting that, despite all efforts by the Noting that, despite all efforts by the United Nations, Iraq refuses to comply United Nations, Iraq refuses to comply with its obligations to implement with its obligations to implement resolution 660 (1990) and subsequent resolution 660 (1990) and subsequent resolutions, in flagrant contempt of the resolutions, in flagrant contempt of the Council …”Council …”


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Security Council Res. 678Security Council Res. 678(29 November 1990)(29 November 1990)

• ““Acting under Chapter VII of the Acting under Chapter VII of the Charter of the United Nations,Charter of the United Nations,– 1. Demands that Iraq comply fully with 1. Demands that Iraq comply fully with

… all relevant resolutions and decides, … all relevant resolutions and decides, while maintaining all its decisions, to while maintaining all its decisions, to allow Iraq one final opportunity as a allow Iraq one final opportunity as a pause of good will to do so;pause of good will to do so;


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““2. Authorizes Member States cooperating 2. Authorizes Member States cooperating with the Government of Kuwait, unless with the Government of Kuwait, unless Iraq on or before January 15, 1991, fully Iraq on or before January 15, 1991, fully implements … the foregoing resolutions, implements … the foregoing resolutions, to use all necessary means to uphold to use all necessary means to uphold and implement Security Council and implement Security Council resolution 660 and all subsequent resolution 660 and all subsequent relevant resolutions and to restore relevant resolutions and to restore international peace and security in the international peace and security in the area; …”area; …”


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““3. Requests all states to provide 3. Requests all states to provide appropriate support for the actions appropriate support for the actions undertaken in pursuance of paragraph 2 undertaken in pursuance of paragraph 2 of this Resolution …”of this Resolution …”

[See also Charter, article 49: “The [See also Charter, article 49: “The Members of the UN shall join in affording Members of the UN shall join in affording mutual assistance in carrying out the mutual assistance in carrying out the measures decided upon by the Security measures decided upon by the Security Council.”]Council.”]


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““Coalitions of the Willing Coalitions of the Willing and Able”and Able”

• The scheme for a permanent UN The scheme for a permanent UN force (Charter, articles 43-47) has force (Charter, articles 43-47) has not been put into effect.not been put into effect.

• Forces must be assembled ad hoc Forces must be assembled ad hoc from those states willing and able to from those states willing and able to provide armed forces personnel and provide armed forces personnel and equipmentequipment

• Political considerationsPolitical considerations


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Self-defenceSelf-defence

• What is an “armed attack”?What is an “armed attack”?

• Must the aggressor strike the first blow?Must the aggressor strike the first blow?

• Interpreting the Charter in the light of Interpreting the Charter in the light of modern weapons capabilitymodern weapons capability

• What Security Council action ends the What Security Council action ends the right of self-defence? right of self-defence? – Example - the Falklands/Malvinas conflictExample - the Falklands/Malvinas conflict


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Special cases for use of Special cases for use of armed force?armed force?

• There is argued to be “wriggle room” There is argued to be “wriggle room” in the wording of both articles 2(4) in the wording of both articles 2(4) and 51.and 51.

• 1. Does article 2(4) forbid a use of 1. Does article 2(4) forbid a use of force to prevent gross abuses of force to prevent gross abuses of human rights (the so-called right of human rights (the so-called right of humanitarian intervention)? E.g. humanitarian intervention)? E.g. Kosovo, 1999Kosovo, 1999


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Special cases (cont’d)Special cases (cont’d)

• 2. Do articles 2(4) and 51 allow for the use 2. Do articles 2(4) and 51 allow for the use of force to protect nationals as a last of force to protect nationals as a last resort? E.g. Entebbe (1976); Grenada resort? E.g. Entebbe (1976); Grenada (1983).(1983).

- “Territorial integrity/political - “Territorial integrity/political independence”: does mere incidental independence”: does mere incidental violation matter?violation matter?

- Customary law of self-defence applies to - Customary law of self-defence applies to nationals, not article 51.nationals, not article 51.


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Special cases (cont’d)Special cases (cont’d)

3. Reprisals 3. Reprisals

(e.g. Tripoli raids)(e.g. Tripoli raids)

• Forbidden by the UN Charter?Forbidden by the UN Charter?

• Or justifiable as self-defence, even Or justifiable as self-defence, even though not immediate (“defensive though not immediate (“defensive reprisals” – Professor Dinstein)?reprisals” – Professor Dinstein)?

• But not against civilians.But not against civilians.


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The invasion of Iraq 2003The invasion of Iraq 2003

• Absolutely illegal?Absolutely illegal?– Article 2(4) of the Charter;Article 2(4) of the Charter;– No prior Iraqi attack justifying No prior Iraqi attack justifying

immediate self-defence;immediate self-defence;– No authorization by the UN Security No authorization by the UN Security

Council.Council.


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Iraq (cont’d)Iraq (cont’d)

• US justification as an act of pre-US justification as an act of pre-emptive self-defence against the emptive self-defence against the feared future use by Iraq of WMDs.feared future use by Iraq of WMDs.

• British justification: authorized by the British justification: authorized by the Security Council by implication from Security Council by implication from the wording of previous resolutions. the wording of previous resolutions.


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Iraq (cont’d)Iraq (cont’d)

• A possible alternative justification on A possible alternative justification on basis of the “wriggle room” in the basis of the “wriggle room” in the interpretation of article 2(4) of the interpretation of article 2(4) of the Charter:Charter:– Was the invasion aimed at the territorial Was the invasion aimed at the territorial

integrity and political independence of integrity and political independence of Iraq or at the removal of a tyrant who Iraq or at the removal of a tyrant who was defying Security Council was defying Security Council resolutions?resolutions?


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The Responsibility to ProtectThe Responsibility to Protect

• Doctrine developed by International Doctrine developed by International Crisis Group in 2001 (Crisis Group in 2001 (www.icg.org).).

• Aims to urge upon the Security Council Aims to urge upon the Security Council its responsibility to protect populations its responsibility to protect populations against genocide and other gross against genocide and other gross abuses of human rights, disregarding abuses of human rights, disregarding irrelevant differences of opinion irrelevant differences of opinion between the Permanent Members on between the Permanent Members on other matters.other matters.


http://www.icg.org/

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Responsibility to Protect Responsibility to Protect (cont’d)(cont’d)• But what if the veto paralyses the But what if the veto paralyses the

Council in such a case?Council in such a case?

• Can individual states, or coalitions of Can individual states, or coalitions of states, take action to protect people states, take action to protect people against vicious regimes?against vicious regimes?

• Is this a “slippery slope” of interpretation Is this a “slippery slope” of interpretation leading to unwarranted interference in leading to unwarranted interference in the affairs of other states?the affairs of other states?


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““Just War” TheoryJust War” Theory

• ElementsElements– Legitimate authorityLegitimate authority– Just causeJust cause– Right intentionRight intention– ProportionalityProportionality

• Does the responsibility to protect Does the responsibility to protect revive just war theory?revive just war theory?


international law and_the_use_of_force

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