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An Introduction to The Legal Bases for the Use of Force in International Law ( Jus ad Bellum)

LAW 549. An Introduction to The Legal Bases for the Use of Force in International Law ( Jus ad Bellum). Outline. Historical Overview Attempts to Outlaw War The Era of the UN Charter Customary Self- Defence Humanitarian Intervention Regional Stability Operations. What is War?.

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An Introduction to The Legal Bases for the Use of Force in International Law ( Jus ad Bellum)

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  1. LAW 549 An Introduction toThe Legal Bases for the Use of Force in International Law(Jus ad Bellum)

  2. Outline • Historical Overview • Attempts to Outlaw War • The Era of the UN Charter • Customary Self-Defence • Humanitarian Intervention • Regional Stability Operations

  3. What is War? • What are the causes? • Nationalism • Militarism • Socialist theory • Liberal theory • Religion • Special Interest Groups

  4. Historical Overview • Era of monarchs and monarchies • rights of sovereigns • holy wars (divinely ordained) • Rise of the nation state • sovereignty & states rights (Westphalia) • “just” wars • World War I & the League of Nations • World War II & the United Nations

  5. Era of monarchs and monarchies • rights of sovereigns • No separation between state and military • Sovereign raised and led armies as required • No standing armies • holy wars (divinely ordained) • “Just war” theory

  6. Rise of the Nation-state • Post Westphalia (1648) • State becomes central figure in international affairs • Nationalism • Creation of standing armies • Large scale national wars during 19th century

  7. World War One • The War to End All Wars • First “Total War” • New technologies • Artillery • Gas • Machine Gun • Airplane • >8.5 million casualties

  8. League of Nations • THE HIGH CONTRACTING PARTIES, In order to promote international co-operation and to achieve international peace and security …accept obligations not to resort to war, • "Any war of threat of war is a matter of concern to the whole League and the League shall take action that may safe guard peace."

  9. Kellog Briand Pact (1928) ARTICLE I • The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

  10. Kellog Briand – A Failure? • KB Pact did not prevent war • First breach was Japan’s invasion of Manchuria in 1931 • Followed by breaches by US, Italy, USSR and Germany • Signatories waged war without declaring it • Effects on future Treaties?

  11. Just War(Bellum iustum) International Humanitarian Law • the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain; • all other means of putting an end to it must have been shown to be impractical or ineffective; • there must be serious prospects of success; • the use of arms must not produce evils and disorders graver than the evil to be eliminated. Not a justification for going to war under the UN Charter

  12. World War Two • 1939-45 • Total War • Massive civilian casualties • Strategic bombing • Urban warfare • Massive war efforts and technological advances

  13. Use of Force Under the Charter of the United Nations UN Charter Preamble: We the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…

  14. UN Charter Article 1 – The Purposes of the United Nations are: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace....

  15. 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…

  16. Nicaragua vs United States International Humanitarian Law • ICJ case in 1984 • US accused of unlawful use of force against Nicaragua • Court found a violation of art. 2(4) had occurred.

  17. UN Charter Article 2(7): Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

  18. Chapter VThe Security Council • Article 23: • 5 permanent members - China, France, Russia, UK and US • 10 elected members (two year terms) • Article 24(1) • [the] Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that… the Security Council acts on their behalf.

  19. Chapter VIPacific Settlement of Disputes • Parties are to resolve disputes peacefully • Ways in which SC can be engaged in pacific settlements of disputes: • General Assembly may refer the matter • Security Council may seize a matter on its own initiative • Any Member of the SC may bring matters to attention of SC • SC can make “recommendations”, but not binding “decisions” under Chapter VI

  20. Peace Keeping CHARACTERISTICS • CONSENT of Host State, Parties to the conflict and Troop Contributing Nations required • SELF DEFENCE- force limited to self defence only • NEUTRALITY- PK forces are neutral

  21. Peace Keeping Cyprus Middle East Former Yugoslavia Eritrea Rwanda Sudan TRADITIONAL MISSIONS

  22. Chapter VII ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

  23. Article 39 – The Trigger The Security Council… shall determine the existence of any threat to the peace, breach of the peace, or act of aggression UNSCR 82 (1950) Noting with grave concern the armed attack on the republic of Korea by forces from North Korea. Determines that this action constitutes a breach of the peace;… ARTICLE 39 LANGUAGE

  24. Chapter VII Article 40 – demands for nations to comply Article 41 - sanctions Article 42 - Restoring IP&S in a geographic area Implementing a Peace Plan Armed intervention Enforcement for Specific Tasks- humanitarian delivery/elections TYPES OF ENFORCEMENT

  25. Article 40: Call upon parties to comply Acting under Article 40 of Chapter VII of the Charter of the United Nations… Demands… that Iran shall suspend all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA UNSCR 1696

  26. Chapter VII Article 41: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.

  27. Article 41 Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41… Condemnsthe nuclear test proclaimed by the DPRK on 9 October 2006 in flagrant disregard of its relevant resolutions Decidesthat…All Member States shall prevent the direct or indirect supply, sale or transfer to the DPRK of…. MEASURES NOT INVOLVING THE USE OF FORCE… UNSCR 1718

  28. Chapter VII Article 42: Should the Security Council consider the measures provided for in Article 41 would be inadequate or have proved to be inadequate, itmay takesuch action by air, sea or land forces as may be necessaryto maintain or restore international peace and security.

  29. Article 42: Determined to ensure the full implementation of the mandate of the International Security Assistance Force, …Acting for these reasons under Chapter VII of the Charter of the United Nations, Authorizesthe Member States participating in the International Security Assistance Force totake all necessarymeasuresto fulfil its mandate; ENFORCEMENT ACTION

  30. Article 42: Acting under Chapter VII of the Charter… Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions… Authorizes Member States co-operating with the Government of Kuwait, …, to use all necessary means to … restore international peace and security in the area ENFORCEMENT ACTION

  31. Enforcement Operations Article 43 All Members of the United Nations, …undertake to make available to the Security Council…armed forces, assistance…necessary for the purpose of maintaining international peace and security. UN MODEL FOR PARTICIPATION

  32. Enforcement vs. Peacekeeping Force beyond self defence is authorized Consent of target or host state where enforcement occurs is not required Enforcement operations are coercive Use of force in self-defence only Consent to conduct ops in host nation(s) territory required Peacekeeping operations are consensual OVERVIEW

  33. Self Defence Under UN Charter Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs ... until the Security Council has taken measures necessary to maintain international peace and security.

  34. Self Defence Article 51 (cont’d): Measures taken in the exercise of this right of self-defence...shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

  35. Article 51: “Occurs” Attacks on state property and persons Use of force must meet requirements of necessity and proportionality Includes collective self-defence What does “Until” clause mean? SELF-DEFENCE

  36. Self- Defence Armed attack What constitutes an armed attack? Scale and effects Mere frontier actions? Non-kinetic attack? Does a state have a right of self defence against a non state entity? (UNSCR 1368 and 1373?) If yes, is it an international armed conflict, non-international armed conflict, or something else? WHAT TRIGGERS SELF DEFENCE?

  37. Self-Defence “… the inherent right of individual or collective self-defence …” Pre-existing rights of Self-Defence not covered by Charter Anticipatory Self-Defence Defence of Nationals Abroad CUSTOMARY INTERNATIONAL LAW

  38. Self- Defence Falkland Islands War Gulf War 1990-91 Campaign Against Terror RECENT EXAMPLES

  39. Customary International Law Anticipatory Self-defence Pre-emptive strikes may be justified only in cases in which the "necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation". The Caroline Affair

  40. Defence of Nationals Abroad Nations have a right and duty to protect their citizens Usually when there is a deteriorating security situation and the host state is unwilling or unable to protect foreign nationals

  41. Non-Combatant Evacuation (NEO) May arise in the context of self-defence or humanitarian emergency 3 Types of NEO Permissive Uncertain Hostile Libya 2011

  42. Humanitarian Intervention Threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens

  43. Humanitarian Intervention • Developing area of law • An emerging trend? Libya, Kosovo vs Rwanda, Sudan, Syria • Emphasis on collective intervention rather than unilateral action

  44. Intervention in Libya International Humanitarian Law UNSCR 1973 Chapter VII, Article 42 All Means Necessary to protect the people of Libya No Occupation

  45. Chapter VIII - Regional Arrangements Nothing in the present Charter precludes the existence of regional arrangements … provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. ARTICLE 52

  46. Collective Security Regionally Based General Prohibition on Use of Force Pacific Settlement of Disputes Exceptions Chap VII- 42 Enforcement Chap VII- 51 Self Defence FUNDAMENTAL PRINCIPLES

  47. Action by Regional Organizations Limits on Regional Action Article 53: The Security Council shall, where appropriate, utilize such regional arrangements for enforcement action under its authority. But no enforcement action shall be undertaken under regional arrangements or by regional agencies without the authorization of the Security Council…

  48. The NATO Intervention in Kosovo Regional organization Confronting genocide Exercise of veto in UNSC Humanitarian crisis NATO bombing campaign and ultimately occupation of Kosovo Legality?

  49. Responsibility to Protect • The State carries the primary responsibility for the protection of populations from genocide, war crimes, crimes against humanity and ethnic cleansing. • The international community has a responsibility to assist States in fulfilling this responsibility. • The international community should use appropriate diplomatic, humanitarian and other peaceful means to protect populations from these crimes. If a State fails to protect its populations or is in fact the perpetrator of crimes, the international community must be prepared to take stronger measures, including the collective use of force through the UN Security Council.

  50. Responsibility to Protect? • China and Russia have, in cases of Burma, Darfur and Syria, argued that that the internal affairs of the state do not have a place within the Security Council. Daraya, Syria 26 August 2012

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