Transcript LECTURE 10 USE OF FORCE - Midlands State University

LECTURE 10 USE OF FORCE
• USE OF FORCE
• A. Introduction
• 1. Rules pertaining to the use of force and
armed conflicts
• 2. It is in two:
• a) ius ad bellum- rules governing the resort
to armed conflict
• b) ius in bello- rules governing the actual
conduct of armed conflict
10.1
• A. Lawful and unlawful wars before 1945
• 1. Teachings in ancient times were
dominated by Roman Catholic Church. St
Augustine AD354- 430 – Just wars those to
avenge injuries
• 2. Late 16th century the distinction between
just and unjust wars begun to break down.
Wars were said to be justified if they were
fought for the defence of certain vital interests
which were never defined
10.2
• 1. The suffering of people during WW1
caused revolutionary change in
attitudes towards war. Hence the
covenant of the League of Nations
signed in 1919 which advised members
to submit a matter for arbitration of
judicial settlement or to inquiry by the
council
10.3
• A. Prohibition of force in the UN Charter:
• 1. Article 2 (4) members shall refrain in their
international relations from the threat of use
of force against the territorial integrity or
political independence of any state
• 2. war has a technical sense in international
law and states often engage in hostilities
while denying that they are technically in a
state of war such hostilities can range from
minor border incidents to exclusive military
operations
10.4
• 1. Article 2 (4) is broadly drafted since it is
inconsistent with the purposes of the UN
since wide variety of purposes can allow war
to be waged to protect human rights, enforce
certain legal rights
• 2. Check Corfu Channel case
• 3. Exceptions exist for use of force in the
UN Charter
10.6
• A. Self-defence
• 1. Self-defence is another exception under
UN Charter Article 51 and is a justification for
NATO and Warsaw Pact
• B. Preventative self defence
• 1. dans les cas ou un membre… est l’objet
d’une aggression armee- (state can be an
object of attack before an attack occurs
• 2. Some are for anticipatory self defence
10.7
• 1. Article 53 of the Charter provides that
parties to a regional arrangement may take
enforcement action against “renewal
aggressive policy on part of the former, hence
this is not necessary if article 51 permitted
anticipatory self defence. 2. USA did not
invoke right of anticipatory self defence in
order to justify quarantine imposed on Cuba
during the Cuban missile crisis because
USSR was going to use it on sites in Europe
10.8
• 1. Fear of creating a dangerous
precedent is probably he reason why
states seldom invoke anticipatory self
defence in practice but Israel bombed a
nuclear reactor in Iraq claiming
anticipation for attack from Iraq but
security council unanimously
condemned Israel.
10.9
• A. Self defence and claims to territory:
• 1. It is unlawful to attack a territory which is in
possession of another state even though the
state using force consider that it has a better title
to the territory in question than the state that
posses it.2. When Agentina invaded the
Falkands Islands in 1982 the security council
passed a resolution demanding an immediate
withdrawal of all Argentinean forces from the
island and this was implied condemnation of the
use of force.
10.10
• A. Self defence against attacks on
ships and aircraft. In CORFU
CHANNEL CASE the ICJ held that
British Warships attacked while
exercising, the right of passage in
foreign territorial waters were entitled to
return fire
10.11
• A. Armed protection of nationals abroad:
• 1. Most states and writers agree that attacks
on state’s nationals resident abroad do not
entitle the state to use force in order to
defend its nationals without the consent of the
foreign government.2. Rescue operations to
protect a state’s own nationals have found
approval or understanding by other states
under certain circumstances and have met a
relative lack of condemnation by organs of
the UN.
10.12
• A. Armed reprisals. In advisory opinion
on the legality of the use of nuclear
weapons 1996 ICJ noted reprisals “are
considered to be unlawful”
• B. Inadequacy and proportionality:
• 1. Force used in self defence must be
necessary, immediate and proportional
to seriousness of the armed attack
10.13
• 1. Force used in self defence must be
necessary, immediate and proportional
to seriousness of the armed attack
• 2. Immediacy requires that the attack
of self-defence must be taken
immediately subsequent to the armed
attack.
10.14
• A. Collective self defence
• 1. Article 51 provides for individual or
collective self defence
• 2. According to the ICJ in NICARAGUA VS
USA one state may not defend another state
unless that other state claims to be the victim
of an armed attack and request the first state
to defend it e.g. Kuwait and Saudi Arabia
against Iraq, DRC against Uganda and
Rwanda.
10.15
• A. Civil wars- war between two or more groups
within a state, one which must be the
government,There is no rule in international law
against civil wars.
• 1. Article 2 (4) prohibits the use of force in
international relations only
• 2. The use of force to frustrate the exercise of a
legal right of self-determination is regarded as
illegal. 1. Participation by other state in a
country ‘s civil war- foreign state are forbidden to
give help to insurgents in a civil war.
10.16
• In case of Nicaragua vs USA ICJ Rep 1986.p14.
The US adopted counter insurgency strategy
against the establishment of Sadinista regime in
Nicaragua and the subsequent spread of
revolutionary movements in neighbouring
countries. The ICJ which although the US refusal
to accept the jurisdiction of the court proceeded
to a judgement on the merits against the US and
raised a number of points “was not only illegal
intervention in the domestic affairs of foreign
state but also in violation of the principle of the
prohibition of force”
10.17
• The right of counter intervention as it is
sometimes called is often supported by
the argument that counter intervention
is necessary to protect the
independence of a country where civil
war is taking place on the grounds that
the established authorities have lost
support and have become puppets
controlled by a foreign state.
10.18
• a) In US VS NICARAGUA the court held that the
plead by the US that it was aiding because
Honduras and Costa Rica had been attacked by
Nicaragua was void since these countries had not
requested collective self defence
• b) To send troops to the territory of the state
without the consent or the government was
invasion. c) Supply of weapons does not
constitute armed attack but the affected state can
seek appropriate counter measures against the
wrong doing state and that can be carried out by
the injured sate not a third state
10.19
• Help for established authorities:
• a) A government until it is definitely
overthrown remains competent to invite
troops into state’s territory and to seek other
forms of foreign help, whatever the effect
which that help may have on the political
future of the state. b) Circumstances aught
to avoid states lying that they were invited
and /or declaring certain government they
support as legitimate.
10.20
• 1. Collective self defence against
subversion:
• a) Every state considers itself entitled
to defend an ally against foreign
subversion
• b) Anticipatory self defence cannot be
invoked in the context of self defence
10.21
• 1945 there has been a tendency for states to try
to justify their participation in foreign civil wars
especially defending that state of subversion e.g.
US in Lebanon, Dominican Republic, and
Vietnam.It may be therefore that we are
witnessing the emergence of a new rule of
international customary law which will permit
states to supply established authorities with
money and arms during every type of civil war,
but forbids states to send troops help established
authorities except when foreign subversion is
occurring.
10.22
• A. Self determination and use of force:
• 1. The legal right of self determination clearly
applies to non self-governing territories, trust and
mandated territories, to other territories is
uncertain. 2. Creation of territory- succession
was not regarded as creating a new state until the
succession movement had established
permanent control over territory in question.
3. a state established in violation of the rights
of self determination is probably nullity in the
eyes of international law e.g. Apartheid south
Africa.
10.23
10.23
• A. Wars of liberation
• 1. If the right of self determination is refused
by a state administering they may wage a war
in order to establish self determination in
practice. 2. Western states regards this as
civil war but communist as internal war. 3.
Intervention by a foreign state in wars of
national liberation would be harmful if it could
be shown that national liberation movement
was the victim of armed attack
10.24
• A. The greatest deficit in modern IL
• 1. is that they are often imprecise practice
has been with reliance on imprecision
• 2. Many states want to retain the possibility
of using force in certain circumstances but
they know that an interpretation which
allowed them to do so would also allow other
states against them, hence keep options
open.
10.25
• MEANS OF WAGING WAR AND CRIMINNAL
RESPONSIBILITY- IUS IN BELLO
• A. Introduction
• 1. deals with conduct of hostilities when war
breaks out
• B. nuclear weapons
• 1. 1961 the UNGA passed a resolution declaring
the use of nuclear weapons illegal.
• 2. there remains an underlying principle that
acts of war should not cause unnecessary
suffering
10.26
• 1. Handing an advisory opinion of
WHO use or threat of force by means of
Nuclear weapons that is contrary to
Article 2. Paragraph 4 of the UN Charter
that fails to meet all requirements of
Article 51 is unlawful and that it should
be compatible with requirements of
international law applicable in armed
conflict
10.27
• on testing nuclear weapons. On a case
brought by Australia and New Zealand
against France the ICJ held it had to
render a decision because it found
France had in meanwhile bound itself
by Unilateral declaration that it would
discontinue atmospheric tests in south
pacific
10.29
• A. the law of neutrality and economic uses of
maritime warfare:
• 1. Belligerent states have broad discretion in
determining whether vessels, air craft and goods
have enemy character
• 2. Ships whatever their nationality or function,
are subject to visit, search and diversion beyond
neutral territorial waters
• 3. Private enemy property, unless it enjoys
special protection, may be captured and seized if
it is found outside neutral jurisdiction
10.30
• 1. The right of capture and seizure does not
apply to neutral vessels and goods unless
they contribute to the fighting or war
sustaining efforts of the enemy
• 2. Geneva convention of 1949 forbids
reprisals against the persons, buildings,
vessels, equipment and property protected by
convention
10.31
• A. War crimes trial- states have to obey the
laws.
• 1. There is a danger that the instruments
may be used as an instrument of revenge
• 2. Defendants in war crimes trials often put
forward that they were under order from their
superior but this rarely succeed
• 3. Nuremberg and Tokyo tribunals remained
isolated precedents in spite of many wars of
aggression e.g Khmer Rouge in Cambodia.
10.32
• A. International criminal Tribunal for former
Yugoslavia:
• 1. Jurisdiction is limited it does not extend
beyond the territorial bounds of former
Yugoslavia and also operate as of 1 January
1999. 2. only pertains to violations of
international environmental law and
customary as it relates to violations of laws or
customs of war, the crime of genocide and
crimes against humanity
10.33
• H. The Rwanda Tribunal- established
Nov 1994 to deal with crimes committed
in massacres in Rwanda
• I. Process is on way to establish a
permanent international court but
conflict pertaining to state sovereignty
exist and hamper efforts
10.34
• H. Only a few of the state parties to the
1949 convention have so far met their
obligations to transform conventions
into legal systems to ensure punishment
of war crimes and misuse of red cross