PUBLIC INT’L LAW CLASS EIGHT USE OF FORCE

1. PUBLIC INT’L LAW CLASS EIGHT USE OF FORCE Prof David K. Linnan USC LAW # 783 10/07/03

2. USE OF FORCE Medieval- “just war doctrine” & outside religious community (Crusades) Enlightenment- “natural law doctrine” leaking over, sovereignty connection 19th century- “state of war” positivism 20th century – “aggression” & lawful use of force

3. USE OF FORCE 19th century law’s structure (jus belli ac pacis, could go to war for any reason or no reason as a matter of sovereignty, essentially as a dispute resolution mechanism) Law of War (encompassing belligerents & neutrals) Law of Peace (older broader ideas of self preservation, economic too, including tradition of self-help and armed force as “measures short of war”)

4. USE OF FORCE Background of peaceful dispute settlement attempts starting in 19th century (neutral nationality commissions of inquiry, etc. to avoid jingoism & accidental war) Humanizing war (under jus in bello or conduct of war) 1856 Declaration of Paris (rights of neutral shipping) 1860 Lieber Code (General Order 100 of Union Army in Civil War) 1868 Geneva Declaration on Exploding Projectiles 1899 First Hague Conventions (rules of warfare) 1907 Second Hague Conventions (rules of warfare)   Limiting war (under jus ad bellum or going to war) late 19th century pacifism tying into peaceful settlement attempts,linked with trying to eliminate “aggressive war”)

5. USE OF FORCE League of Nations Covenant (1919) Comes out of President Wilson’s efforts at Versailles, but US never ratifies treaty due to fear of “foreign entanglements” Article 10 contains modern territorial integrity & political independence language still followed in UN Charter Article 2(4) (problem of Belgium in WWI) League Covenant, however, still focused on older “war” concept in terms of legal concept Voluntary enforcement problem led to 1930s collapse after Japanese in Manchuria (China) & Italians in Abbyssinia (Ethiopia)

6. USE OF FORCE Kellogg-Briand Pact (1928) US participation Still talks of “war,” but considered opinion is that it reaches all unlawful force “Self-defense” as key concept not in the treaty, but its existence characterized as inherent in note exchanges (conceptual tie to sovereignty)

7. USE OF FORCE UN Charter (1945) Understand as drafted against background of failed League of Nations collective security system and “aggressive war” customary law articulated in parallel at Nuremburg & Tokyo war trials (1946) Article 2 (1) sovereign equality concept Article 2(3) peaceful resolution of disputes Article 2(4) apparent bar of force against “territorial integrity or political independence” of member states Article 51 self-defense pending Security Council action

8. USE OF FORCE Issue of how collective security to work, structurally abandons older belligerent & neutral categories in favor of “aggressor” & “others” How does this raise implicit questions re duties vis-à-vis opposing aggression?

9. USE OF FORCE UN Security Council Structural version of great powers acting together but with veto (problem of not wishing to be forced to act) Cold War deadlock Self-defense under Article 51 co-exists with caveat that Security Council can shut it down (but arguments about “inherent” nature still) Security Council can force (legally) UN members to cooperate in departure from League of Nations (mandatory Chapter VII language)

10. USE OF FORCE Self-defense, differing views US sees customary law surviving (Caroline 1837, “necessity of self defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation” plus proportionality) Socialist & others employs literalist focus reading UN Charter Article 51 as only exception to seemingly absolute Article 2(4) language (aggression definition tie) Continental legal science in Draft Code on State Responsibility (ILC) follows new doctrinal construct of self-defense & necessity, linked to dualistic ideas of state law (competing with older precedents as Caroline, now recharacterized as necessity in conjunction with which force is notpermitted under modern law principles) Interpretive style, text versus legislative history?

11. USE OF FORCE ICJ Cases Corfu Channel Case, limitation on strict Article 2(4) reading Nicaragua Case, politically charged addressing indirect aggression, but literalist focus Since 1980s, Persian Gulf cases filed but settled or have not come to judgment (Iran Flight 655, Oil Platforms, etc)

12. USE OF FORCE Proportionality Under self-defense, part of American views but not Socialist views (view of not“favoring” aggressors) Dispute regarding proportionality’s application to UN-sponsored force under Security Council resolutions Scale of force problem (issue in Kuwait crisis whether to drive Iraqis only out of Kuwait, or invade Iraq too, or use of atomic weapons at end of WWII by US to avoid estimated 500,000 casualties invading Japanese home islands)

13. USE OF FORCE Force Within UN System as Opposed to Under Self-defense Original system of Security Council forces under Articles 42 & 43 Cold War casualty (including Military Staff Commission) US view that since Article 43 agreements never existed, no “duty” to provide militatry forces Smaller states prefer view since Security Council has no forces of its own, authorizes use of force and requires members states to support it either under best efforts reasoning or at extreme requiring provision of troops following “criminalization” of aggression as under Draft Code on State Responsibility

14. USE OF FORCE Force Within UN System as Opposed to Under Self-defense (Cont’d) There is a basic structural issue in the Security Council and competing desires for large states to keep responses to the unlawful use of force a political process, while smaller states states typically desire mandatory rules. Why the difference of opinion between different classes or groups of states? Is the reason the same that some states might give for forcing all use of force questions into the Security Council (eg, trying to limit self-defense as a legal doctrine under int’l law)?

15. USE OF FORCE Non-compliance Issues with Security Council Resolutions in early 1990s Kuwait Crisis Problematic view neutrality may still be legal option Problems like Jordan in early 1990s Kuwait crisis announcing that all foreign aircraft would be excluded (despite SC resolution) Problems of impermissible support by states after war broke out in dispersal of Iraqi planes overseas in early 1990s, eg in Iran Feared terrorism attacks in earl;y 1990s by extremist groups in Kuwait crisis (eg, streets of foreign cities will run with blood if Iraq invaded, issue chiefly with PLO as state in utero supporting Iraq)

16. USE OF FORCE Issues Re Scope of Help Required by States Not Fighting in Kuwait Crisis Financial help (Japan’s perennial claim cannot commit troops under post-WWII constitution), whether mandatory, and how much is enough

17. USE OF FORCE WHAT IS DIFFERENT OR THE SAME IN 2003 IN IRAQ AS OPPOSED TO FIRST GULF CRISIS IN 1991 ON THE SIDE OF USE OF FORCE LAW? From Indonesian students’ viewpoint? From US students’ viewpoint?

18. USE OF FORCE What were the concerns visible in US League Covenant debates (1919)? Concerns about world executive Foreign entanglements Constitutional questions (WPA & UN System isssues now) Expense of war for insignificant country What is common stake in idea of stamping out aggression?

19. USE OF FORCE Have the concerns really changed since 1919? How do big versus small states feel about UN system versus traditional self-defense & collective self-defense alliance (eg, NATO)? How do developed versus developing countries feel about the UN system versus traditional self-defense & collective self-defense alliance (eg, NATO)? How do such concerns relate to civil wars, ethnic conflicts & recognizing new states (eg, former Yugoslavia), and what about terrorism and indirect aggression issues buried? What is the place of UN peace-keeping in all of this?

20. USE OF FORCE FOR NEXT WEEK WE SHALL STAY WITH THE USE OF ARMED FORCE, BUT LOOK AT UN PEACE-KEEPING ACTIVITIES AND RELATED MATTERS PLUS NEWER ISSUES UNDER THE INTERNATIONAL CRIMINAL COURT (ICC) Problem(s) will be distributed to the linnanil listserv and placed on the course page.