international law war: international and civil. just war: avenging injuries against a foe that fails...

International Law

War: International and Civil


Just War: Avenging injuries against a foe that fails to punish wrongs committed by its citizens. “that kind of war is undoubtedly just which God

Himself ordains” St. Augustine

i.e., obtaining reparations and Holy wars were okay

Just War

Just Cause Competent Authority Comparative Justice Right Intention Last Resort Probability of Success Proportionality

Properly Authorized Just Cause Peaceful means

exhausted Victory Likely Probability that war

will not produce more evil than good


OLD customary law seemed to be: war is justified if fought for the defense of vital interests Each State was entitled to decide what its vital

interests were Sooooooo, were there really any limits on war,

at least to the winner???


But the way States thought about war started changing, slowly, but changes, none-the-less. 1815/1839 treaties guaranteeing Switzerland

and Belgium neutrality and protection against attack

1907 Hague Convention II prohibiting the use of force to collect contract debts (with exceptions)


WWI and 9 million deaths: “War, no matter how much we enjoy it, is no strawberry festival.” Frank Burns

League of Nations has a three month ‘cooling off’ period before members were supposed to go to war

Members were not supposed to go to war against other members

1928 Kellogg-Briand Pact (Peace of Paris) intent was to outlaw war as policy


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.”

This may also be customary international law Some authors: Article 2(4) should be interpreted

as totally prohibiting the threat or use of force, period.


Note it outlaws the “threat or use of force” not just ‘war’

Note, also, that it outlaws threat/force only against ‘territorial integrity or political independence’

So can you use threat/force for other purposes??? Rescue one’s nationals, halt genocidal atrocities,

prevent crimes against humanity??? Or does the ‘other manner inconsistent with the

Purposes of the United Nations’ save it???


Bottom line: International law or a State’s rights should not be enforced at the expense of international peace. Corfu Channel


Exceptions: Force authorized by the UN or ‘competent

regional organization’ (Later) Self-defense (Article 51): Charter does not

‘impair the inherent right of individual or collective self-defense in an armed attack occurs . . . until the Security Council has taken the measures necessary to maintain’ peace.


Caroline: For British action to be legal must show “a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation.” And had to show that by entering the US, the British “did nothing unreasonable or excessive; since the act justified by the necessity of self-defense must be limited by the necessity and clearly within it.”

Preventive self-defense


Preventive Self-Defense Against what???

A wide range of interests??? Probably not How about Cuba in 1962

“not a good example . . . of the doctrine of anticipatory self-defense, because a communist attack was probably not imminent”

What is imminent???• A question of opinion and degree• Bound to be subjective and capable of abuse

Preventive Self-Defense-Terrorism

Terrorist threat is real and genuineTerrorist threat is immediate and

imminent, allowing no time or available mechanism for negotiation or deliberation

The preemptive response taken is a military necessity and proportional to the perceived threat


“Fear of creating a dangerous precedent is probably the reason why states seldom invoke anticipatory self-defense in practice.”

Israel 1967 Israel-Iraq 1981 US-Libya 1986 US-Iraq 2003


Self-defense may NOT be used to settle disputes as to ownership of territory

Falkland/Malvenes 1982 Iraq/Iran 1980; Iraq/Kuwait 1990 BUT may defend an attack even if the other party

has a better title than you if you are in possession


Self-defense and attacks on ships/aircraft? Yes

Armed Protection of Citizens? Israel Entebbe 1976 US Iran 1980 US Grenada 1984 Mixed Reviews Is this really self-defense or self help???


Reprisals “Self-defense does not include a right of armed reprisal;

if terrorists enter one state from another, the first state may use force to arrest or expel the terrorists, but, having don so, it is not entitled to retaliate by attacking the other state.”

• US Libya 1986• US Panama 1989• Israel • US Iraq 1993

Governed by proportionality


Self-defense must be necessary, immediate, and proportional to the seriousness of attack Falklands 1982: waited a month to counter-

attack Enough to repel attack (and, maybe, to prevent

a repeat attack); retaliation and punitive measures are forbidden


Collective self-defense Defense of others: Other state has right to defend

itself and asks others to help Collective security

Goal to maintain general international peace and security

Civil Wars

If not a ‘civil war’ yet, may help the gov’tA war between two or more groups of the

same State (one of which may be the de facto or de jure government)

Not against international law per seParticipation by others

Foreign States are forbidden to help insurgents Nicaragua v. U.S.A.

Civil Wars

Exception [maybe] to rule of no help my be where the government is receiving foreign help

Counter-intervention Many States argue that a State may give help

to the government because a State may invite other to help (a kind of self-defense argument)

Hungary, Czechoslovakia, Afghanistan and the USSR

But who is the de facto or de jure government?

Civil Wars

Collective self-defense against subversion (out-side help) Armed Attack only??? Troops, but not weapons???

Self-determination

Who does self-determination apply to? Article 73, UN Charter: every territory ‘which is

geographically separated and is distinct ethnically and/or culturally from the country administering it’

Especially if territory is in a position of subordination to the administering power

Peoples subjected to alien subjugation and exploitation

Self-determination

Can choose independence, integration, or association

Colonial enclavesWestern SaharaFalklands

Self-determination

“All peoples have the right to self-determination”

BUT: self-determination does not authorize any action which splits up independent States “possessed of a government representing the whole people . . . without distinction as to race, creed, or color.”

Self-determination

So, does self-determination apply outside a ‘colonial’ type situation???

Palestine?Kurds?

Self-determination

Legal Problems Colonial State retains sovereignty over its

colony until exercise their right of self-determination

Self-determination for independence creates a new State with the boundaries of the colony-even if splits ethnic/religious groups

Self-determination

Wars of National Liberation A civil war or an international war??? People that have a legal right to self-

determination are entitled to fight a war of national liberation

Illegal to use force against an attempt to exercise right of self-determination

Self-determination

Minority populations have no ‘right’ under international law to self-determination or succession

However, it isn’t against international law for a civil war But then we are back to who can help in a civil

war and what kind of help

international law war: international and civil. just war: avenging injuries against a foe that fails...

Documents

international lawwar

international relations

civiljust war

kind of war

expense of international

use of force

necessity of selfdefense

united nations