Lecture 8: International law on the use of force

Question 1

Definition: jus ad bellum

Answer 1

When can states lawfully go to war

Question 2

Definition: jus in bello

Answer 2

How war can be lawfully waged once it has broken out, e.g. humanitarian law

Question 3

If jus ad bellum has not been followed, you still have to follow

Answer 3

Jus in bello

Question 4

What did European theologians mostly try to do when war was merely seen as “politics by other means”?

Answer 4

They tried to distinguish between ‘just’ and ‘unjust’ wars in motivation and conduct

Question 5

Just way theory encompasses

Answer 5

Both jus ad bellum and bus in bello

Question 6

Just war theory before Westphalia: Saint Augustine

Answer 6

War must always be avoided if the state wants to make amends - war is only justifiable when it is used to punish wrongdoers who refuse to make amends

Question 7

Just war theory before Westphalia: Saint Thomas Aquinas: Wars are only just if these 3 criteria are fulfilled

Answer 7

1. Waged on the command of the rightful sovereign (e.g. the leader of the state, not the pope)
2. Waged for a just cause, because of some wrong by the other party
3. Waged with the right intent

Question 8

What did war theory before Westphalia say about the use of violence?

Answer 8

Proportionality: violence used only to the extent necessary, e.g. not every wrong should be answered by war, and violence should be proportional to the wrong

Question 9

The rise of the Westphalian system is generally associated with the decline of…

Answer 9

Just war tradition - sovereign states themselves were the judges of the righteousness of their actions

Question 10

What did law focus on in the Westphalian period?

Answer 10

Regulating the legal framework within which war took place - e.g. declarations of war, rights and obligations of neutrals, naval prizes

As well as the laws of war (treatment of captured soldiers, citizens etc)

Question 11

The League of Nations did not make war illegal, but provided these 2

Answer 11

1. The submission of disputes that could lead to war to arbitration, judicial settlement, or inquiry with binding verdicts
2. A 3-month cooling-off period after the verdict before war could be declared

Question 12

UN Law on the use of force by states

Answer 12

All members must refrain in the IR from the threat or use of force against territorial integrity or political independence of any state or in any manner inconsistent with purposes of UN

Question 13

Two exceptions to UN ban on the use of force

Answer 13

1. Self-defense
2. UNSC-authorized action (collective security)

Question 14

What 5 principles did the UNGA 1970 Declaration on Principles of IL lay out?

Answer 14

1. Wars of aggression are a crime against peace
2. States must not use or threaten to use force to violate existing boundaries or to solve international disputes (e.g. even with a good claim to territory, you have to go to court)
3. States have a duty to refrain from reprisals involving the use of force (e.g. expelling diplomatics, cutting off relations is okay, violence is not)
4. States must not use force to deprive people of self-determination and independence
5. States must not help or encourage civil strife, terrorism or armed banks in other states’ territories (but status of these groups can be ambiguous)

Question 15

UN law of self-desense

Answer 15

Self-defense is an inherent right and predates the UN charter, so is okay if an armed attack occurs, but the measures taken must be reported to SC so they can debate and potentially impose other measures

Question 16

Self defense: Nicaragua v. US (1986)

Answer 16

ICJ found that self-defense was an inherent part of customary IL and a right under the UN Charter, but Nicaragua did not have right to self-defense despite US supporting guerillas against their government

Question 17

2 unresolved questions regarding self-defense

Answer 17

1. What is the threshold for an attack that would trigger the right to self-defense? Threshold is often circumstantial, e.g. difference between Belgium and NL, vs. Israel and Jordan
2. What about terrorism, non-state actors, non-state-actors hosted by other states? Atfer 9/11, hosting terrorist groups can give rise to military action, but only with UNSC approval

Question 18

Definition: preventive war

Answer 18

You attack another state because you think war is inevitable in the future (illegal)

Question 19

Definition: Pre-emptive war

Answer 19

If an enemy attack is imminent, mobilizing its armies at your border, you do not have to wait before starting self-defense

Question 20

Self-defense: The Caroline test

Answer 20

Necessity: threat is imminent and thus pursuing peaceful alternatives is not an option

Proportionality: response must be proportionate to the threat

Question 21

Does self-defense extend to the protection of nationals and property abroad?

Answer 21

Commonly accepted in 19th century, but today: not for property, but possibly for nationals (e.g. Belgium killing rebels in Congo because many Belgians were killed in the civil war)

Question 22

Collective self-defense: Nicaragua v. US

Answer 22

Collective self-defense is lawful, but only if it’s as a result of an attack on a state and if that state has sought help

Question 23

What rights do the UNSC have in terms of war?

Answer 23

Can do whatever measures it sees fit to maintain or reestablish international peace and security, e.g. action by air, sea, or land forces

Question 24

Which 3 times has the UNSC used their right to use force to protect international peace and security?

Answer 24

Korea (1950), Kuwait (1990), Libya (2011)

Question 25

What is the major controversy regarding the use of force today?

Answer 25

Humanitarian intervention

Question 26

What is humanitarian intervention? (3 points)

Answer 26

No agreed definition, but generally taken to mean?

1. Use of force or threat of use of force;
2. In the territory of a foreign state which has not committed an act of aggression against the intervening state(s)
3. Motivated by humanitarian motives)

Question 27

The two views on humanitarian interventions

Answer 27

1. Humanitarian intervention allows for effective protection of human rights in line with aspirations of UN Charter
2. Humanitarian intervention is merely an excuse by usually Western states to intervene militarily against usually non-Western states

Question 28

Was the NATO bombing of Yugoslavia illegal?

Answer 28

Independent International Commission on Kosovo (1999) declared it illegal but justified - but shouldn’t law match morality?

International Commission on Intervention and State Sovereignty (2000) concluded that states had a right and duty to intervene militarily for humanitarian reasons under certain requirements and created R2P

Question 29

R2P

Answer 29

Endorsed at UN summit in 2005, with proviso that UNSC approval is needed