Transcript International Law War: International and Civil War: International and Civil Just War: Avenging injuries against a foe that fails to punish wrongs committed.

International Law
War: International and Civil
War: International and Civil
Just War: Avenging injuries against a foe
that fails to punish wrongs committed by
its citizens.
“that kind of war is undoubtedly just which God
Himself ordains” St. Augustine
i.e., obtaining reparations and Holy wars were
okay
Just War
 Just Cause
 Competent Authority
 Comparative Justice
 Right Intention
 Last Resort
 Probability of Success
 Proportionality
 Properly Authorized
 Just Cause
 Peaceful means
exhausted
 Victory Likely
 Probability that war
will not produce more
evil than good
War: International and Civil
OLD customary law seemed to be: war is
justified if fought for the defense of vital
interests
Each State was entitled to decide what its vital
interests were
Sooooooo, were there really any limits on war,
at least to the winner???
War: International and Civil
But the way States thought about war
started changing, slowly, but changes,
none-the-less.
1815/1839 treaties guaranteeing Switzerland
and Belgium neutrality and protection against
attack
1907 Hague Convention II prohibiting the use of
force to collect contract debts (with exceptions)
War: International and Civil
WWI and 9 million deaths: “War, no matter how
much we enjoy it, is no strawberry festival.” Frank
Burns
League of Nations has a three month ‘cooling
off’ period before members were supposed to
go to war
Members were not supposed to go to war against
other members
1928 Kellogg-Briand Pact (Peace of Paris)
intent was to outlaw war as policy
War: International and Civil
UN Charter, Article 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.”
This may also be customary international law
Some authors: Article 2(4) should be interpreted
as totally prohibiting the threat or use of force,
period.
War: International and Civil
Note it outlaws the “threat or use of force” not
just ‘war’
Note, also, that it outlaws threat/force only
against ‘territorial integrity or political
independence’
So can you use threat/force for other purposes???
Rescue one’s nationals, halt genocidal atrocities,
prevent crimes against humanity???
Or does the ‘other manner inconsistent with the
Purposes of the United Nations’ save it???
War: International and Civil
Bottom line: International law or a State’s rights
should not be enforced at the expense of
international peace. Corfu Channel
War: International and Civil
Exceptions:
Force authorized by the UN or ‘competent
regional organization’ (Later)
Self-defense (Article 51): Charter does not
‘impair the inherent right of individual or
collective self-defense in an armed attack
occurs . . . until the Security Council has taken
the measures necessary to maintain’ peace.
War: International and Civil
Caroline: For British action to be legal
must show “a necessity of self-defense,
instant, overwhelming, leaving no choice
of means and no moment for deliberation.”
And had to show that by entering the US,
the British “did nothing unreasonable or
excessive; since the act justified by the
necessity of self-defense must be limited
by the necessity and clearly within it.”
Preventive self-defense
War: International and Civil
Preventive Self-Defense
Against what???
A wide range of interests??? Probably not
How about Cuba in 1962
“not a good example . . . of the doctrine of
anticipatory self-defense, because a communist
attack was probably not imminent”
What is imminent???
• A question of opinion and degree
• Bound to be subjective and capable of abuse
Preventive Self-Defense-Terrorism
Terrorist threat is real and genuine
Terrorist threat is immediate and imminent,
allowing no time or available mechanism
for negotiation or deliberation
The preemptive response taken is a
military necessity and proportional to the
perceived threat
War: International and Civil
“Fear of creating a dangerous precedent is
probably the reason why states seldom invoke
anticipatory self-defense in practice.”
Israel 1967
Israel-Iraq 1981
US-Libya 1986
US-Iraq 2003
War: International and Civil
Self-defense may NOT be used to settle
disputes as to ownership of territory
Falkland/Malvenes 1982
Iraq/Iran 1980; Iraq/Kuwait 1990
BUT may defend an attack even if the other party has
a better title than you if you are in possession
War: International and Civil
Self-defense and attacks on ships/aircraft?
Yes
Armed Protection of Citizens?
Israel Entebbe 1976
US Iran 1980
US Grenada 1984
Mixed Reviews
Is this really self-defense or self help???
War: International and Civil
Reprisals
“Self-defense does not include a right of armed reprisal;
if terrorists enter one state from another, the first state
may use force to arrest or expel the terrorists, but,
having don so, it is not entitled to retaliate by attacking
the other state.”
• US Libya 1986
• US Panama 1989
• Israel
• US Iraq 1993
Governed by proportionality
War: International and Civil
Self-defense must be necessary,
immediate, and proportional to the
seriousness of attack
Falklands 1982: waited a month to counterattack
Enough to repel attack (and, maybe, to prevent
a repeat attack); retaliation and punitive
measures are forbidden
War: International and Civil
Collective self-defense
Defense of others: Other state has right to defend
itself and asks others to help
Collective security
Goal to maintain general international peace and
security
Civil Wars
If not a ‘civil war’ yet, may help the gov’t
A war between two or more groups of the
same State (one of which may be the de
facto or de jure government)
Not against international law per se
Participation by others
Foreign States are forbidden to help insurgents
Nicaragua v. U.S.A.
Civil Wars
Exception [maybe] to rule of no help my be
where the government is receiving foreign help
Counter-intervention
Many States argue that a State may give help
to the government because a State may invite
other to help (a kind of self-defense argument)
Hungary, Czechoslovakia, Afghanistan and the
USSR
But who is the de facto or de jure government?
Civil Wars
Collective self-defense against subversion
(out-side help)
Armed Attack only???
Troops, but not weapons???
Self-determination
Who does self-determination apply to?
Article 73, UN Charter: every territory ‘which is
geographically separated and is distinct
ethnically and/or culturally from the country
administering it’
Especially if territory is in a position of subordination
to the administering power
Peoples subjected to alien subjugation and
exploitation
Self-determination
Can choose independence, integration, or
association
Colonial enclaves
Western Sahara
Falklands
Self-determination
“All peoples have the right to selfdetermination”
BUT: self-determination does not authorize
any action which splits up independent
States “possessed of a government
representing the whole people . . . without
distinction as to race, creed, or color.”
Self-determination
So, does self-determination apply outside
a ‘colonial’ type situation???
Palestine?
Kurds?
Self-determination
Legal Problems
Colonial State retains sovereignty over its
colony until exercise their right of selfdetermination
Self-determination for independence creates a
new State with the boundaries of the colonyeven if splits ethnic/religious groups
Self-determination
Wars of National Liberation
A civil war or an international war???
People that have a legal right to selfdetermination are entitled to fight a war of
national liberation
Illegal to use force against an attempt to
exercise right of self-determination
Self-determination
Minority populations have no ‘right’ under
international law to self-determination or
succession
However, it isn’t against international law
for a civil war
But then we are back to who can help in a civil
war and what kind of help