#2408 - The Use Of Force Notes - Public International Law

The use of force

Some regard it as a curious if not paradoxical idea that IL should seek to regulate war and the use of force

• It appears almost perverse to use the instrumentality of the law in an attempt to regulate the precise manner of violent killing and destruction of property

• 2 angles of criticism

  • Killing/property destruction is wrong – should not be lent the colour of legitimacy by accommodating them within the law

  • When the very existence of institutions and moral principles of fundamental importance is under grave threat, they must be defended, and whatever is necessary for their defence is OK.

    • Defence secretary Rumsfeld’s observation that “stuff happens” in response to complaints of looting during the 2003 invasion of Iraq.

• Both criticisms have some force; but both are fundamentally flawed as criticisms of the role that has been given to IL in the context of the use of force

• Whatever one might think about the Vietnam war in the 1960s and 70s, or the intervention in Kosovo in 1999 or the invasion of Iraq in 2003, it cannot be said that they were, taken as a whole, wanton acts of violence.

  • Those uses of force were all launched to safeguard some value that was thought sufficiently important to warrant asking or ordering people to die and kill for.

• The conflicts may regarded as fundamentally immoral and illegal, or as having involved disproportionate force, or in some other way defective, but they were not unprincipled.

• If force is used to secure or advance values and principles that force must itself be consistent with those principles.

  • No sense to seek to preserve the civilised values of human dignity and human right by the use of torture and gratuitous and indiscriminate suffering

• Whatever the moral justification for the use of force may be, that moral justification will – if it is to be coherent – entail limitations upon the circumstances in which force may be used and the manner in which it is used

  • Could this provide the basis for rules of going to war?

  • Is this logic or natural law?

  • 1863 Instructions for the government of armies of the us in the field:

    • “MEN who takes up arms against one another is public war do not cease on this account to be moral beings responsible to one another and to God”

• “Just war” – Deuteronomy chapter 20, mosaic rules of war.

• The ius in bello and ius ad bellum developed separately from one another as legal concepts, although the 2 bodies of rules are closely related and there is a very long history of moral analysis of the rightness to resort to war, epitomized by the “just war” tradition.

• Only in the 20^th century that there arose legal constraints upon the rights of states to have resort to war, although for many centuries there had been recognition of the need for a moral justification for the waging of war.

• Until beginning of 20^th century, dictum of Clausewitz was “As accurate as it was elegant”

  • “war is the continuation of politics by other means”

• But after horrors of ww1 and ww2, there was a realization that the war represented a monumental failure of policy, diplomacy and military strategy

  • Note Wilson’s “14 points” speech: “US’ goal in the war was that the world be made fit and safe to live in”

• League of nations - covenant was the first serious attempt to place general legal constraints upon the resort to war

  • In 19^th century, there had been bilateral treaties in which states had declared their “eternal friendship” e.g. Costa-Rica /Nicaragua treaty in 1868

• Art 12 of covenant:

  • “members of the league...will submit the matter either to arbitration or judicial settlement or to enquiry by the council...agreement not to resort to war until 3 months after the award”

  • If a state failed to comply with this, other mss were committed to sever all trade or financial relations with it.

• The Kellogg-Briand pact in 1928:

  • “condemn recourse to war for the solution of international controversies”

Lowe says: “no-one should expect commitments of this kind to lead to an immediate and total change in State behaviour – as long as state have armed forced the temptation to use them against other States will remain and occasionally prove irresistible”

The charter system

• Samuel Beckett: “Try Again. Fail Again. Fail Better”

• There is much criticism of the UN but it should not be forgotten that the people who built it, and framed the provisions of the Charter were people who not only knew what war was like – and were indeed drafting the Charter during the war – but also knew what failure and cynicism were.

• The united nations charter contained a clear and absolute prohibition on the unilateral use of force, except in self-defence

  • Art 2(4)

    • Confirmed in Nicaragua as a rule of customary international law

    • Meaning of this article is vague, a more precise meaning has been given in the section on the Principle of the use of force in the 1970 GA declaration on principles of IL concerning friendly relations and cooperation between states – the declaration can be taken to reflect the views of the UN membership as a whole on the legal meaning of the principles.

    • Does not prohibit political pressure or economic pressure – a proposal by Brazil during the drafting stages of the article was rejected

      • Though it is not clear whether this is because it was not desirable to limit economic pressure OR because “force” was deemed broad enough to cover it [HARRIS]

    • GOODRICH, HAMBRO AND SIMMONS – “it is reasonable to conclude that while various fors of economic and political pressure may be treated as threats to the peace, they are not be be regarded as coming necessarily under the prohibition of art 2(4) which concerns mainly armed force.

    • But note Arab oil boycott after yom kippur war in 1973 – not all economic and political pressure was ok

• The rights and security of States were secured by 2 other provisions:

  • One permitted the UN sc to authorize the use of force

  • The other permitted SC to take measures necessary to maintain international peace and security

• The drafters of the Charter envisaged that the UN would have armed forces permanently at its disposal: those UN forces never materialized.

The use of force authorized by the UN

• Structure remains as originally drafted

• UN still has no armed forces permanently

• Within that framework it retains a very wide range of powers

  • Chapter VI – SC may investigate any situation which might lead to international friction and ANY member state may take such an issue to the council

  • The council may make recommendations for the handling of the situation and frequently does so.

  • If the council determines that a situation constitutes a “threat to the peace, breach of the peace or act of aggression” it may exercise its chapter VII powers.

    • Under art 41, it may decided to order measures not involving the use of armed force

      • E.g. mandatory economic sanctions – first imposed in 1966 in relations to the white minority government in Rhodesia

    • UN MSs are legally bound under art 25 of the charter to accept and carry out such decisions of the council.

    • Under art 42 UN SC may take action by air, sea or land forces as may be necessary to maintain or restore international peace and security.

• The council has found threats to the peace even in matters that may appear to be purely internal.

  • E.g. jean-bertrand aristide – reinstate, elected president of Haiti in 1990, UN authorized a joint human rights mission with the organization of American states and imposed arms and oil embargoes on Haiti.

• Powers under Chapter Vi and VII sound weak and ineffectual:

  • “often it is not”

    • A clear report accepted by the UN on a situation which indentifies problems, those responsible and possible solutions may quickly become the focus of unified state policy.

    • Decisions to use armed force have been much rarer

      • 1^st occurred when taking advantage of a USSR absence

        • Made “forces and other assistance available to a unified command under the US” in Korea

      • not authorized again until 1990, when in resolution 678, the council authorized MSs acting in cooperation with the government of Kuwait to use all necessary means to secure the withdrawal of the Iraqi forces which had invaded Kuwait and the restoration of international peace and security in the area.

    • Some people argued and perhaps believed that the invasion of Iraq by the “coalition of the willing” led by the US and the UK in 2003 was justified on the baiss on the 1990 mandate

      • Mandate revived by Iraq’s denial of possession of WMDs (or not allowing international inspectors to search for them)

      • Lord Steyn – this argument was “scrapping the barrel”

        • Seeds of exotic plants in the desert, until some State which happened to be a veteran of the 1990 kuwait conflict might decide to water them back into bloom

  • By 2007 the UN had established 61 peacekeeping operations of which 15 are still in operation

    • 14 peacekeeping operations and one special political mission in Afghanistan.

      • Almost ten times the number the troops deployed than in 1980s, reflecting the dramatic changes in international politics

• To outsiders it may appear bewildering and unprincipled

  • Why do states sometimes choose to act outside the UN framework?

  • Why does the UN act in some circs and not others?

• Lowe says: “there are answers to all of these questions, usually rooted in political considerations”

• In this field, the UN and the SC tends not to be very legalistic: it is more concerned to do what a working majority of members considers to be right and desirable than to fit its actions within lawyers’ categories.

• That said it is...