The Use of Force Unit 11

Introduction Before the U.N. Charter, before 1945, many states followed the Just War doctrine. Just War theory states that war was illegal unless undertaken for a just cause. Indeed, much territory and sovereignty of Arabia, Europe, and the Americas follow from the use of armed force. Will force continue to play a role in international relations?

Introduction WW2 was from How did the U.S. benefit? After the U.N. Charter, the basic rule is that using force is a violation of jus cogens. However, armed force has played a central role in international relations because there really is no punishment for it. Force means armed force, not economic aggression or anti-government propaganda.

How do you see the world?

The law of the U.N. Charter Article 2(4) Article 2 (4) states “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.” Only a prohibition of force directed against territorial integrity or political independence? So is force allowed if there is no occupation or if it does not go against the UN purposes? Customary law and principles of sovereignty also support the prohibition of force.

Permissive or Restrictive View Literal interpretation of Article 2(4) supports a permissive view that force is allowed in certain circumstances. Restrictive view totally prohibits the use of force by a state, unless there is an explicit exception. Preliminary drafts made in San Francisco supports the view that 2(4) was inserted to strengthen prohibition of force, not weaken it.

2 kinds of force Unilateral force is when a state acts on their own initiative. Collective use of force is the result of a collective decision, like one authorized by the U.N. Seemingly, unilateral force is designed to achieve personal goals of the state, while collective force is designed to protect the interests of the community at large.

Self defense exception under customary law Self-defense is allowed in response to a direct ongoing armed attack against state territory (Kuwait against Iraq in 1990) In anticipation of an armed attack, to neutralize an immediate and potential threat (Israel’s air strike against Iraqi nuclear reactor in 1981) Response to an attack (threatened or actual) against state interests such as territory, nationals, property. (U.S. vs. North Korea?) An attack in response to economic aggression and propaganda if there is an instant and overwhelming necessity for forceful action (China vs. U.S.?)

U.N. Charter 51 Self defense clause Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and 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.

Okay, so what is an armed attack? The law is unclear Are small bullet fires over the mountain an armed attack like those from North Korea? How about a home made missile or two every week like what happens to Israel? Can an armed attack come from insurgents outside of the state?

When is self defense available? Law is unclear Is self defense available in anticipation of an armed attack? Is self defense justified when an attack is against economic assets or nationals abroad? Is self defense available against attacks by terrorists? By the way, what is a terrorist? Does the self defense have to be proportionate? (Yes) If state uses self defense, they must give notice to the Security Council

Other exceptions Collective self defense (NATO) By invitation to fight another army But not allowed for invitations in a civil war (unless exception is for assisting a population fighting under self-determination) Reprisals means the revenge for punishment or harm suffered (Bush's father) wxY

Other exceptions Protection of nationals at home and abroad (U.S. excuse against Iraq) However, use of force is only allowed under CL if the host state does not protect the nationals, if the nationals face immediate danger, and if force is the weapon of last resort. *How do you feel about Russia and the U.S. in Afghanistan and Iraq?

Other exceptions Humanitarian intervention – state A may use force in state B to protect the nationals of state B. This was the excuse for the NATO bombing of Serbia in 1998 Also, Vietnam intervened in Cambodia in 1978, even though the Security Council did not agree with Vietnam’s use of force.

Other exceptions Hot pursuit – Can police or military cross into another state during a hot pursuit? (Bin Laden’s capture) Monroe doctrine – USA policy to forcibly resist any non-American states to establish power in the western hemisphere (Cuban Missile Crisis) Johnson doctrine – USA policy to resist with force any attempt to establish communism in the western hemisphere

Role of Security Council Article 39, 40, 41, 42 allows the Security Council to take non-military actions such as sanctions, embargos, and other economic retaliations plus use of force by air, sea, and land to a breach of international peace and security. Article 53 of the Charter allows the SC to delegate enforcement to regional organizations like NATO.

Peacekeeping UN under collective force and by invitation can send peacekeeping troops. Peacekeeping is usually to supervise a peace or merely to observe a cease-fire line. Peacekeeping is not meant to be confrontational. It is theoretically possible that a peacekeeping mission could turn into peace enforcement by the directions of the Security Council.

Key events Iraq invasion of Kuwait and U.S. invasion of Iraq (Security Council’s implicit acceptance) U.S. invasion of Iraq again in 2006 (Against the Security Council) U.S. war against terrorists in Afghanistan since Which wars under international law have been legally justified?

Death toll of American soldiers

Iraqi civilian death toll

Operation Desert Storm 1991

Percentage of military spending by county

Conclusion Is the world more peaceful than ever or more dangerous than ever? What is the role of the U.S. in maintaining world peace by threat of force? When is use of force, or specifically war justified?