Force Flashcards
Does Article 51 cover non-state actors?
Strict reading says no but teleological approach says yes, since thats what drafters would have envisioned.
I.e turkish action against turkish groups
Practice that has taken place is that Article 51 has been opened up to permit self-defence against armed attacks by terrorist actors which could not be attributed to another state under the traditional criteria I.e turkish action against turkish groups
Whats the general prohibition on use of force?
Article 2(4) of UN Charter, with 2 exceptions Article 51 (Self defence) and use of force as sanctioned by the UN Security Council.
Also note there’s a Jus Cogens norm on prohibition on use of force. Very point of Jus Cogens norms is that they’re non-derogable.
Self defence?
Article 51.
It envisions an inter-state self-defence. (remember drafted in 1945). Practice is that Article 51 has been opened up to permit self-defence against armed attacks by terrorist actors which could not be attributed to another state under the traditional criteria I.e turkish action against turkish groups
Does UN Prohibition on force work?
- Like domestic law on murder doesn’t prevent murder, nor can prohibition on use of force completely prevent it.
- Note that violence and oppression come in many different forms, and many people die due to poverty. We must look at improving the lot of the “we the people” the UN Charter applies to
Article 1
- The purpose of UN is to maintain international peace and security
- General prohibition on use of force (2(4)) is cornerstone of UN Charter.
CRIMEA
- Russia annexed Crimea, part of Ukranian territory, in 2014
- Russia has been hit with broad range of (non-UN) sanctions. Was suspended from G8
- UN General Assembly (which has no veto) passed a non-binding resolution reaffirming territorial sovereignty of Ukraine and denying legal basis of referendum (68/262)
- Note that General Assembly resolutions aren’t binding. Security Council resolutions are, but Russia, as a permanent state, has the power to veto Security Council resolutions.
Why couldnt the security council intervene in Crimea?
- Russia, as a permanent state, has the power to veto Security Council resolutions.
- Note that the UN General Assembly (which has no veto) passed a non-binding resolution reaffirming territorial sovereignty of Ukraine and denying legal basis of referendum.
SYRIA
- No humanitarian intervention provision in UN Charter. How do we justify it outwith the Charter-based system?
- Security Council is deadlocked as Russia is allies with Syria so used P5 Veto Power
Uk Parliamentary vote on humanitarian intervention lost vote in August 2013 - SC called upon Member States with capacity to do so to take all necessary measures (shorthand for Chapter VII = Article 42 authorisation) on ISIL/ Da’esh territory in Syria and Iraq- SC Rs 2249 (2015)
- UK Parliamentary vote in support of armed intervention in December 2015
- February 2016, UNSC adopted SCR 2268 that endorsed previously brokered US-Russia deal on an end to hostilities
- Second ceasefire in SC Res 2401 - Russian bombing resumed just hours later
Does UN Charter allow for humanitarian intervention?
- No. Some form of humanitarian intervention accepted at end of 19thc.
- Humanitarian Intervention used as cloak for imperialism, such as US invasion in Cuba Humanitarian Intervention seems desirable, but every time we relax conditions on exceptions on use of force, we open up the prohibition on the use of force to abuse. If we create more exceptions, at what point do the exceptions swallow the rule?
- Doctrine of humanitarian Intervention fell out of favour and no right is included in the UN Charter. In NATO intervention in Kosovo, right to humanitarian Intervention was argued for.
- CONSIDER R2P
LIBYA 2011
- Un Sc passes Resolution 1970 under Chapter VII demanding an immediate end to violence and authorising measures short of armed force (Art 41)
- UN Sc subsequently passed Resolution 1973 under Chapter VII authorising “all necessary measures”, two days later NATO intervention under Resolution 1973
- Was the mandate overstepped?
Iraq War 2003
- SC Res 1441- Iraq has been and remains in material breach of its obligations under relevant resolutions and decides to afford Iraq “one final opportunity to comply”- THIS IS Chapter VII authorisation and isn’t authorising “all necessary means”- use of force not authorised
- SC Res 1546 noted presence of MNF in Iraq with consent of the newly formed government
- US and UK argued for revival of resolutions 661 and 678 in 1991 and said when the ceasefire resolution had been passed, conditions were imposed and since in 1441 SC acknowledged Iraq breached conditions, SC 678 was revived.
- Self-defence argument- but does pre-emptive self-defence exist? Not legal under UN Charter
does pre-emptive self-defence exist?
-Not legal under UN Charter
Afghanistan 2001: Operation Enduring Freedom
- Post 9/11, Taliban regime is sheltering Al Qaida, who US blames for 9/11
- US leads “coalition of the willing” against Afghanistan. Although this isn’t NATO action, NATO invoked Art 5 of Treaty (attack against one = against all) even though Al Qaida isn’t a state actor.
- SC Res 1368- SC recognised inherent right of individual or collective self-defence, unequivocally condemned terrorist attacks and regarded such acts as “international terrorism” as threat to “international peace and security”
- SC Res 1373- “need to combat by all means.. threats to international peace and security caused by terrorist acts” - didn’t provide express authorisation or state “all necessary means” therefore no SC authorisation of use of force in Afghanistan, just self-defence argument.
NATO Intervention in Kosovo in 1999
-Ethnic Albanians were excluded from government, schools, universities, civil service etc. Serb forces killed 1500 - 2000 civilians/KLA combatants in retribution for KLA attacks on Yugoslav authorities in Kosovo.
NATO alliance takes military action against Serbia without Security Council authorisation. SC Res 1244 “welcomed” the political situation in Kosovo post-military-action and established UNMIK.
-Difficult to justify Kosovo as there was no armed attack against a NATO state
-Argument that SC Res 1244 post-facto legitimises and legalises the military action
-Was it that the military action was illegal but legitimate? Appeal to moral grounds to justify what was likely an otherwise illegal use of force.
-B. Simma holds that the Rule of Law should be sacrificed under compassionate grounds. He believes it was ethically justified but contrary to international lawNATO Intervention in Kosovo in 1999
Who has a monopoly on the use of force?
- The UN Security council has a monopoly on the use of force other than use of force in self-defence: Article 39 of UN Charter- “the Security Council shall determine the existence of any threat to the peace , breach of the peace or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”
- The Security Council has complete discretion over what constitutes a threat to the peace- doubtful any other state/court can review this decision whatsoever.
