1. Use of Force Including War An Introduction

2. Use of Force Including War Rules Governing Inter-state Warfare: Two categories: Jus ad bellum Jus in bello

3. Modern Era Coercive Measures Restorsions Unfriendly, but not illegal, retaliatory actions taken y a state against another state in response to actions that are regarded as hostile, unfriendly or not in keeping with the policy aims of the responding states. Breaking off trade/diplomatic religions Imposing embargoes Deny entry visas Vessels denied entry into ports Deny aircraft overflight Station troops near other state’s borders

4. Reprisals not Involving the use of Armed Force Reprisals: Illegal acts taken as a measure of self help in response to a prior illegal act. Acts not involving armed force are counter-measures.

5. Pre-1945 Law on Use of Armed Force The experience of WWI led to the Covenant of the League of Nations 1919, established a process for states to pursue before going to war: The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute. Art. 12

6. Pre-1945 Law on Use of Armed Force Covenant of the League of Nations 1919 Establishing a cooling off period to allow outside body to resolve the dispute. Members acting contrary to the Covenant could be subject to severance of trade, financial relations. The League of Nations failed to have an influence when Italy invaded Ethiopia in1935.

7. Pre-1945 Law on Use of Armed Force Outlawing War General Treaty for the Renunciation of War 1928 Known as the Kellogg-Briand Pact, parties to the treaty condemned recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another. Pledge the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

8. Post-1945 Law After WWII, allied powers established a general framework to ensure peaceful means to resolve disputes. UN Charter, main purpose: to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, Preamble

9. UN Charter Art. 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, or in any other manner inconsistent with the Purposes of the United Nations. Binding on all states by customary international law.

10. Meaning of Force Use of force less than warfare is anticipated by the UN Charter : Political Economic Ideological/psychological force

11. Meaning of Force UN Charter expects a state to use force if attacked: 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.

12. Meaning of Force Declaration on Principles of International Law Concerning Friendly Relations & Co-operation among States in Accord with the UN Charter Adopted by General Assembly resolution 2625 (XXV) of 24 October 1970. Nothing in the Declaration enlarged or diminished in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful.

13. Meaning of Force Declaration on Principles of International Law Concerning Friendly Relations did prohibit some types of armed and non-armed intervention: No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

14. Threat of Force What can be considered a threat of force can be a subjective interpretation: A blatant and direct threat of force to compel another state to yield territory or make substantial political concessions (not required by law) would have to be seen as illegal under UN Charter, Art. 2(4) if the words “threat of force” are to have any meaning.

15. Threat of Force The UN Charter prohibits force when used in any manner inconsistent with the purpose of the United Nations. 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, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; Art. 1(1).

16. Exceptions to Un Charter Art. 2(4) Self defense 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. Art. 51

17. Exceptions to Un Charter Art. 2(4) The right of individual and collective self defense are part of customary international law pre-dating the UN Charter, and the Charter recognize the inherent right to of self defense which any state possesses in the event of an armed attack. Nicaragua v. US, 1986, ICJ 14, at para. 193.

18. Preemption United States initiated armed force against Iraq in March 2003. The Bush Administration tried to assert a new doctrine to use force preemptively, and subsequently Iraq was in violation of Security Council resolutions. Theory of preemption is based on imminent threat of an attack. Any future attack, remote or speculative, justifies self defense.

19. Reprisals using Force Reprisals using force in a time of peace are considered to be unlawful. On the question of belligerent reprisals, … that in any case any right of recourse to such reprisals would, like self-defense, be governed inter alia by the principle of proportionality. Reprisals taking place during a time of war are also governed by the four Geneva Conventions of 1949.

20. The Rule of Non-intervention UN Charter Art. 2 makes clear “The Organization is based on the principle of the sovereign equality of all its Members. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 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.

21. Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States & Protection of Their Independence Sovereignty The UN General Assembly pass resolutions that are non-binding, but the ICJ ruled that the Declaration is an “expression” of customary international law. Nicaragua v. US, 1986 I.C. J. 14 Among its provision: 1. No State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other States.

22. Continued … 2. The principle of non-intervention and non- interference in the internal and external affairs of States comprehends the following rights and duties: (a) Sovereignty, political independence, territorial integrity, national unity and security of all States, as well as national identity and cultural heritage of their peoples; (b) The sovereign and inalienable right of a State freely to determine its own political, economic, cultural and social system,…

23. Continued … The duty of a State to ensure that its territory is not used in any manner which would violate the sovereignty, political independence, territorial integrity and national unity or disrupt the political, economic and social stability of another State; this obligation applies also to States entrusted with responsibility for territories yet to attain self- determination and national independence;

24. Continued … The duty of a State to refrain from armed intervention, subversion, military occupation or any other form of intervention and interference, overt or covert, directed at another State or group of States, or any act of military, political or economic interference in the internal affairs of another State, including acts of reprisal involving the use of force;

25. Continued … The duty of a State to refrain from any action or attempt in whatever form or under whatever pretext to destabilize or to undermine the stability of another State or of any of its institutions; duty of a State to refrain from using terrorist practices as state policy against another State or against peoples under colonial domination, foreign occupation or racist regimes and to prevent any assistance to or use of or tolerance of terrorist groups, saboteurs or subversive agents against third States;

26. Continued … The duty of a State to refrain from any economic, political or military activity in the territory of another State without its consent; The right and duty of States to observe, promote and defend all human rights and fundamental freedoms within their own national territories and to work or the elimination of massive and flagrant violations of the rights of nations and peoples, and in particular, for the elimination of apartheid and all forms of racism and racial discrimination;

27. Continued … The right and duties set out in this Declaration are interrelated and are in accordance with the Charter of the United Nations. Nothing in this Declaration shall prejudice in any manner the right to self-determination, freedom and independence of peoples under colonial domination, foreign occupation or racist regimes, and the right to seek and receive support in accordance with the purposes and principles of the Charter of the United Nations. Nothing in this Declaration shall prejudice in any manner the provisions of the Charter of the United Nations, or action taken by the United Nations under Chapters VI and VII of the Charter of the United Nations.

28. Civil Wars and the Rule of Non-intervention A state has no right to support a rebel group in another state even if convinced the cause is justified. The prohibition applies to humanitarian aid. International law does not prohibit civil wars, the UN Charter and customary laws of war do not apply to the conduct of civil wars in certain instances. A state may support a foreign government threaten by rebel forces to restore internal order.

29. Intervention in Particular Circumstances Intervening to Protect Nationals A state has the right to protect its citizens, but there is no definitive rule that recognizes the authority of a state to intervene with force within a foreign nation to protect its citizens or their property.

30. Intervention in Particular Circumstances Humanitarian Intervention Military intervention has been a practice used to protect populations as a central part of international law. Justification is based on preserving human rights, democracy or peace and security. Customary international law does not recognize a right to intervene. The practice of intervention has contributed to the development of an accepted state practice.

31. Responsibility to Protect The legal concept of responsibility to protect has some basis as a result of Security Council actions. In some cases, the responses are categorized as humanitarian intervention. Presently, the concept is not characterized as customary international law.

32. UN Security Council’s Power to Intervene UN Charter, Art. 24: In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

33. UN Security Council’s Power to Intervene UN Charter, Art. 25: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. Exception, Art. 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.

34. UN Security Council’s Power to Intervene Pacific Settlement Disputes Chapter VI: The Security Council has the power to investigate and recommend settlement procedures disputes between states. Solutions: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.

35. UN Security Council’s Power to Intervene Art. 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. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

36. UN Security Council’s Power to Intervene Art. 42: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

37. UN Security Council’s Power to Intervene Art. 43(1): All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

38. UN Peacekeeping Forces The UN Security Council authorizes the use of peacekeeping forces with the consent of the host nation. Opposition by some UN Members not supporting these missions resulted in an advisory opinion by the ICJ, ruling that such expenses were legitimate in relation to fulfilling the overall purposes of the United Nations, promoting and to maintain a peaceful settlement of disputes.

39. Jus In Bello The general rule prohibits inter-state force under international law. While armed conflicts take place, other rules apply to regulate the conduct of war and protect victims of armed conflict, applicable to military personnel and civilians. Humanitarian law regulates the types of force used, applicable in various conventions and customary international law to restrict use of certain weapons. Humanitarian law is the principal body of law applying in armed conflicts.

40. Regulating Conduct of Hostilities & Humanitarian Law Force may be used only to military advantage, requiring unnecessary force be avoided, and disproportionate suffering to military advantage is prohibited. Forbidden practices include: Torture Taking hostages Extra judicial executions Deportations Wanton destruction of property

41. Regulating Conduct of Hostilities & Humanitarian Law Common Art. 3, International Hostilities In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

42. Regulating Conduct of Hostilities & Humanitarian Law To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

43. Regulating Conduct of Hostilities & Humanitarian Law (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

44. Regulating Conduct of Hostilities & Humanitarian Law Results: A standard of treatment for noncombatants, wounded and prisoners in non-international armed conflicts. The rules do not apply to internal disturbances and tensions such as riots, isolated acts of violence not considered armed conflicts. Activities prohibited are: torture, collective punishment, rape, enforced prostitution and pillage, humane treatment of prisoners.

45. Weapons Control General rule is that force is only permissible to achieve military advantage and all unnecessary suffering is prohibited. The rules distinguish between combatants and noncombatants, prohibiting states from attacking civilians and prohibiting the use of weapons that do not distinguish between military and civilian targets.

46. Weapons Control Restrictions of Weapons Asphyxiating, poisonous and other gases during war time Bacteriological methods of warfare Chemical weapons Mines, booby-traps and other devices Incendiary weapons Blinding laser weapons

47. Weapons Control Nuclear Weapons Several conventions address the following use of nuclear weapons: 1. Use of nuclear weapons 2. The spread of nuclear weapons 3. Reduction of these weapons 4. Nuclear free zones 5. Prohibit testing of nuclear weapons