International law and_the_use_of_force

11
INTERNATIONAL LAW ANDINTERNATIONAL LAW AND
THE USE OF FORCETHE USE OF FORCE
Professor Ivan ShearerProfessor Ivan Shearer
www.StudsPlanet.comwww.StudsPlanet.com

22
Sources of the law on the use ofSources of the law on the use of
armed forcearmed force
• Customary international lawCustomary international law
• General principles of law common toGeneral 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

33
Right to use force/law of armedRight to use force/law of armed
conflictconflict
• Right to use force is called the jus adRight to use force is called the jus ad
bellumbellum
• Laws governing the manner of conductingLaws governing the manner of conducting
armed operations is called the jus in belloarmed operations is called the jus in bello
(law of armed conflict/international(law of armed conflict/international
humanitarian law)humanitarian law)
• This presentation confined to jus adThis presentation confined to jus ad
bellumbellum

44
War as an instrument ofWar as an instrument of
national policynational policy
• Failure of the League of Nations to outlawFailure of the League of Nations to outlaw
war (League Covenant, 1919)war (League Covenant, 1919)
• Kellogg-Briand Pact, 1928 declared war toKellogg-Briand Pact, 1928 declared war to
be inadmissiblebe inadmissible
• Germany, Italy and Japan declare warGermany, Italy and Japan declare war
1939-411939-41

55
The United Nations Charter,The United Nations Charter,
19451945
• A new beginning: “to save succeedingA new beginning: “to save succeeding
generations from the scourge of war”generations from the scourge of war”
• Charter establishes a system of collectiveCharter establishes a system of collective
security and forbids unilateral resort tosecurity and forbids unilateral resort to
forceforce
• However, preserves the right of self-However, preserves the right of self-
defencedefence

66
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 withPowers of the Security Council to deal with
breaches of the peace or threats to peacebreaches of the peace or threats to peace
(articles 39-42)(articles 39-42)
– Reservation of the right of individual andReservation of the right of individual and
collective self-defence until Security Councilcollective self-defence until Security Council
can act effectivelycan act effectively

77
““War”: Is the word still valid?War”: Is the word still valid?
• The effect of the UN Charter is to abolishThe effect of the UN Charter is to abolish
the legal significance of the word “war”.the legal significance of the word “war”.
• Instead, the neutral term “armed conflict”Instead, the neutral term “armed conflict”
is used.is used.
• Usual now to refer to the jus in bello asUsual now to refer to the jus in bello as
“the law of armed conflict’ (LOAC)“the law of armed conflict’ (LOAC)

88
The prohibition – article 2(4)The prohibition – article 2(4)
• ““All Members shall refrain in theirAll Members shall refrain in their
international relations from the threat orinternational relations from the threat or
use of force against the territorial integrityuse of force against the territorial integrity
or political independence of any State, oror political independence of any State, or
in any other manner inconsistent with thein any other manner inconsistent with the
Purposes of the United Nations”.Purposes of the United Nations”.

99
Powers of the Security CouncilPowers of the Security Council
• Article 39Article 39
– ““The Security Council shall determine theThe Security Council shall determine the
existence of any threat to the peace, breachexistence of any threat to the peace, breach
of the peace, or act of aggression and shallof the peace, or act of aggression and shall
make recommendations, or decide whatmake recommendations, or decide what
measures shall be taken in accordance withmeasures shall be taken in accordance with
articles 41 and 42 to maintain or restorearticles 41 and 42 to maintain or restore
international peace and security.”international peace and security.”

1010
(continued)(continued)
– ““The Security Council may decide what measures notThe Security Council may decide what measures not
involving the use of armed force are to be employedinvolving the use of armed force are to be employed
to give effect to its decisions, and it may call upon theto give effect to its decisions, and it may call upon the
Members of the United Nations to apply suchMembers of the United Nations to apply such
measures. These may include complete or partialmeasures. These may include complete or partial
interruption of economic relations and of rail, sea, air,interruption of economic relations and of rail, sea, air,
postal, telegraphic, radio, and other means ofpostal, telegraphic, radio, and other means of
communication, and the severance of diplomaticcommunication, and the severance of diplomatic
relations.”relations.”

1111
(continued)(continued)
– ““Should the Security Council consider thatShould the Security Council consider that
measures provided for in article 41 would bemeasures provided for in article 41 would be
inadequate or have proved to be inadequate,inadequate or have proved to be inadequate,
it may take such action by air, sea, or landit may take such action by air, sea, or land
forces as may be necessary to maintain orforces as may be necessary to maintain or
restore international peace and security. Suchrestore international peace and security. Such
action may include demonstrations, blockade,action may include demonstrations, blockade,
and other operations by air, sea, or landand other operations by air, sea, or land
forces of Members of the United Nations.”forces of Members of the United Nations.”

1212
Self-defenseSelf-defense
– ““Nothing in the present Charter shall impairNothing in the present Charter shall impair
the inherent right of individual or collectivethe inherent right of individual or collective
self-defence if an armed attack occurs againstself-defence if an armed attack occurs against
a Member of the United Nations, until thea Member of the United Nations, until the
Security Council has taken measuresSecurity Council has taken measures
necessary to maintain international peace andnecessary to maintain international peace and
security….”security….”

1313
Initial questions about the aboveInitial questions about the above
• 1. Are the words after “use of force” in1. Are the words after “use of force” in
article 2(4) words of explanation orarticle 2(4) words of explanation or
limitation?limitation?
• 2. “Members”. Are non-members excluded?2. “Members”. Are non-members excluded?
• 3. Does a parallel right of self-defence exist3. Does a parallel right of self-defence exist
in customary law, against e.g. terroristin customary law, against e.g. terrorist
groups? Yes. See Nicaragua case in ICJ.groups? Yes. See Nicaragua case in ICJ.
• 4. Is there a right of pre-emptive self-4. Is there a right of pre-emptive self-
defence?defence?

1414
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, articleDecisions made binding by Charter, article
2525
• Reform proposalsReform proposals
– Enlarge to 21, 25? Abolish the Veto?Enlarge to 21, 25? Abolish the Veto?

1515
The Security Council in action:The Security Council in action:
IraqIraq
• SECURITY COUNCIL RESOLUTION 660SECURITY COUNCIL RESOLUTION 660
(2 AUGUST 1990):(2 AUGUST 1990):
– ““The Security Council…determining that thereThe Security Council…determining that there
is a breach of the peace by the Iraqi invasionis a breach of the peace by the Iraqi invasion
of Kuwait…of Kuwait…
– 1. Condemns the Iraqi invasion…1. Condemns the Iraqi invasion…
– 2. Demands that Iraq withdraw immediately…”2. Demands that Iraq withdraw immediately…”

1616
Security Council Res. 661Security Council Res. 661
(6 August 1990)(6 August 1990)
• ““The Security Council …decides that all states shallThe Security Council …decides that all states shall
prevent:prevent:
• (A) the import…of all commodities …originating in Iraq or(A) the import…of all commodities …originating in Iraq or
Kuwait…Kuwait…
• (B) any activities by their nationals which … promote the(B) any activities by their nationals which … promote the
export or transshipment of any commodities … from Iraqexport or transshipment of any commodities … from Iraq
or Kuwait …or Kuwait …
• (C) the sale or supply of any commodities …including(C) the sale or supply of any commodities …including
weapons or any other military equipment …but notweapons or any other military equipment …but not
including supplies intended strictly for medical purposes,including supplies intended strictly for medical purposes,
and in humanitarian circumstances, foodstuffs, …to Iraqand in humanitarian circumstances, foodstuffs, …to Iraq
or Kuwait…”or Kuwait…”

1717
(25 August 1990)(25 August 1990)
• ““The Security Council …1. Calls uponThe Security Council …1. Calls upon
states …deploying maritime forces to thestates …deploying maritime forces to the
area to use such measures commensuratearea to use such measures commensurate
to the specific circumstances as may beto the specific circumstances as may be
necessary under the authority of thenecessary under the authority of the
Security Council to halt all inward andSecurity Council to halt all inward and
outward maritime shipping … to inspect andoutward maritime shipping … to inspect and
verify their cargoes and destinations toverify their cargoes and destinations to
ensure strict implementation of Res. 661.”ensure strict implementation of Res. 661.”

1818
(29 November 1990)(29 November 1990)
• ““The Security Council:The Security Council:
– Recalling and reaffirming its resolutions 660,Recalling and reaffirming its resolutions 660,
661, 662, 664, 665, 666, 667, 669, 670, 674,661, 662, 664, 665, 666, 667, 669, 670, 674,
and 667,and 667,
– Noting that, despite all efforts by the UnitedNoting that, despite all efforts by the United
Nations, Iraq refuses to comply with itsNations, Iraq refuses to comply with its
obligations to implement resolution 660obligations to implement resolution 660
(1990) and subsequent resolutions, in flagrant(1990) and subsequent resolutions, in flagrant
contempt of the Council …”contempt of the Council …”

1919
• ““Acting under Chapter VII of the Charter ofActing under Chapter VII of the Charter of
the United Nations,the United Nations,
– 1. Demands that Iraq comply fully with … all1. Demands that Iraq comply fully with … all
relevant resolutions and decides, whilerelevant resolutions and decides, while
maintaining all its decisions, to allow Iraq onemaintaining all its decisions, to allow Iraq one
final opportunity as a pause of good will to dofinal opportunity as a pause of good will to do
so;so;

2020
““2. Authorizes Member States cooperating2. Authorizes Member States cooperating
with the Government of Kuwait, unlesswith the Government of Kuwait, unless
Iraq on or before January 15, 1991, fullyIraq on or before January 15, 1991, fully
implements … the foregoing resolutions,implements … the foregoing resolutions,
to use all necessary means to uphold andto use all necessary means to uphold and
implement Security Council resolution 660implement Security Council resolution 660
and all subsequent relevant resolutionsand all subsequent relevant resolutions
and to restore international peace andand to restore international peace and
security in the area; …”security in the area; …”

2121
““3. Requests all states to provide3. Requests all states to provide
appropriate support for the actionsappropriate support for the actions
undertaken in pursuance of paragraph 2undertaken in pursuance of paragraph 2
of this Resolution …”of this Resolution …”
[See also Charter, article 49: “The Members[See also Charter, article 49: “The Members
of the UN shall join in affording mutualof the UN shall join in affording mutual
assistance in carrying out the measuresassistance in carrying out the measures
decided upon by the Security Council.”]decided upon by the Security Council.”]

2222
““Coalitions of the Willing andCoalitions of the Willing and
Able”Able”
• The scheme for a permanent UN forceThe scheme for a permanent UN force
(Charter, articles 43-47) has not been put(Charter, articles 43-47) has not been put
into effect.into effect.
• Forces must be assembled ad hoc fromForces must be assembled ad hoc from
those states willing and able to providethose states willing and able to provide
armed forces personnel and equipmentarmed forces personnel and equipment
• Political considerationsPolitical considerations

2323
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 ofInterpreting the Charter in the light of
modern weapons capabilitymodern weapons capability
• What Security Council action ends theWhat Security Council action ends the
right of self-defence?right of self-defence?
– Example - the Falklands/Malvinas conflictExample - the Falklands/Malvinas conflict

2424
Special cases for use of armedSpecial cases for use of armed
force?force?
• There is argued to be “wriggle room” in theThere is argued to be “wriggle room” in the
wording of both articles 2(4) and 51.wording of both articles 2(4) and 51.
• 1. Does article 2(4) forbid a use of force to1. Does article 2(4) forbid a use of force to
prevent gross abuses of human rights (theprevent gross abuses of human rights (the
so-called right of humanitarianso-called right of humanitarian
intervention)? E.g. Kosovo, 1999intervention)? E.g. Kosovo, 1999

2525
Special cases (cont’d)Special cases (cont’d)
• 2. Do articles 2(4) and 51 allow for the use of2. Do articles 2(4) and 51 allow for the use of
force to protect nationals as a last resort? E.g.force to protect nationals as a last resort? E.g.
Entebbe (1976); Grenada (1983).Entebbe (1976); Grenada (1983).
- “Territorial integrity/political independence”:- “Territorial integrity/political independence”:
does mere incidental violation matter?does mere incidental violation matter?
- Customary law of self-defence applies to- Customary law of self-defence applies to
nationals, not article 51.nationals, not article 51.

2626
Special cases (cont’d)Special cases (cont’d)
3. Reprisals3. 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 thoughOr justifiable as self-defence, even though
not immediate (“defensive reprisals” –not immediate (“defensive reprisals” –
Professor Dinstein)?Professor Dinstein)?
• But not against civilians.But not against civilians.

2727
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 immediate self-No prior Iraqi attack justifying immediate self-
defence;defence;
– No authorization by the UN Security Council.No authorization by the UN Security Council.

2828
Iraq (cont’d)Iraq (cont’d)
• US justification as an act of pre-emptiveUS justification as an act of pre-emptive
self-defence against the feared future useself-defence against the feared future use
by Iraq of WMDs.by Iraq of WMDs.
• British justification: authorized by theBritish justification: authorized by the
Security Council by implication from theSecurity Council by implication from the
wording of previous resolutions.wording of previous resolutions.

2929
Iraq (cont’d)Iraq (cont’d)
• A possible alternative justification on basisA possible alternative justification on basis
of the “wriggle room” in the interpretationof the “wriggle room” in the interpretation
of article 2(4) of the Charter:of article 2(4) of the Charter:
– Was the invasion aimed at the territorialWas the invasion aimed at the territorial
integrity and political independence of Iraq orintegrity and political independence of Iraq or
at the removal of a tyrant who was defyingat the removal of a tyrant who was defying
Security Council resolutions?Security Council resolutions?

3030
The Responsibility to ProtectThe Responsibility to Protect
• Doctrine developed by International CrisisDoctrine developed by International Crisis
Group in 2001 (Group in 2001 (www.icg.orgwww.icg.org).).
• Aims to urge upon the Security Council itsAims to urge upon the Security Council its
responsibility to protect populationsresponsibility to protect populations
against genocide and other gross abusesagainst genocide and other gross abuses
of human rights, disregarding irrelevantof human rights, disregarding irrelevant
differences of opinion between thedifferences of opinion between the
Permanent Members on other matters.Permanent Members on other matters.

3131
Responsibility to Protect (cont’d)Responsibility to Protect (cont’d)
• But what if the veto paralyses the CouncilBut what if the veto paralyses the Council
in such a case?in such a case?
• Can individual states, or coalitions ofCan individual states, or coalitions of
states, take action to protect peoplestates, take action to protect people
against vicious regimes?against vicious regimes?
• Is this a “slippery slope” of interpretationIs this a “slippery slope” of interpretation
leading to unwarranted interference in theleading to unwarranted interference in the
affairs of other states?affairs of other states?

3232
““Just War” TheoryJust War” Theory
• ElementsElements
– Legitimate authorityLegitimate authority
– Just causeJust cause
– Right intentionRight intention
– ProportionalityProportionality
• Does the responsibility to protect reviveDoes the responsibility to protect revive
just war theory?just war theory?

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