Lesson 1: Jus ad bellum and International law

Question 1

What article in the UN Charter refers to the use of force? And what does it say?

Answer 1

Article 2 (4) - Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state

Question 2

Which two general exceptions to article 2 (4) does the Charter refer to?

Answer 2

1. Authorisation of forcible measures by the Security Council (Chapter VII)
2. Force may be used in the exercise of the right of individual or collective self-defence (Article 51)

Question 3

Where should the legal justifications for humanitarian intervention be found?

Answer 3

In the subsequent state practice and customary law (If at all)

Question 4

Is the use of force in retaliation legal or illegal?

Answer 4

Illegal (Such as revenge, reprisals, or punishment)

Question 5

What is the Kellogg-Briand Pact of 1928?

Answer 5

An international peace agreement in which states promised not to use war to resolve “disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them”. (France, Germany, and the US)

Question 6

What type of force does article 2 (4) refer to?

Answer 6

It is generally accepted that it refers to ‘physical’ or ‘armed’ force (See the Friendly Relations Declaration). As such, coercive measures are not included in the interpretation, such as economic pressures

Question 7

Regering to use of force “against the territorial integrity or political independence of any state” in article 2(4), is humanitarian intervention then legal (Or not within the scope of the article) if the use of force is with the aim of other objectives?

Answer 7

Two arguments goes against this interpretation:
1. The drafting history shows that the inclusion of this phrase was not intended to narrow the prohibition
2. The phrase should be seen in the context of the following “or in any other manner inconsistent with Purposes of the United Nations”. (Use of force without consent would violate this)

Question 8

Is there considered to be a threshold of seriousness below which a use of force does not fall within article 2 (4)?

Answer 8

Some claim that there is a de minimis threshold, however there is no evidence to support either this or the contrary (Inconclusive - generally some circumstances might not qualify as a use of force under this article, e.g. law enforcement of state’s fisheries jurisdiction).

Question 9

Is ‘force’ and ‘armed attacks’ to be interpreted with the same meaning?

Answer 9

No: The more acts that are seen as us of force (And, thus, armed attacks), the more acts would trigger article 51 - Increasing the number of circumstances where use of force is a lawful response (And, thus, armed conflicts)
Yes: If there is a gap between force and armed attack, States can be inclined to engage in forcible coercion that falls below the threshold of an armed attack (Thereby eliminating the opportunity of responds by other states that includes force)

Question 10

Under what circumstances does the charter predicate a right to self-defence?

Answer 10

Under armed attack

Question 11

What was the Nicaragua v. the United States 1986 case about?

Answer 11

A case where the International Court of Justice (ICJ) held that the U.S. had violated international law by supporting the Contras in their rebellion against the Sandinistas and by mining Nicaragua’s harbors.

Question 12

Is there any rulings that comments on the distinction between an ‘armed attack’ and ‘use of force’?

Answer 12

In the Nicaragua case, ICJ ruled that it was necessary “to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms” (Such as the assistance to rebels in the form of the provision of weapons or logistical or other support).

Question 13

What does state practise show on the distinction between an ‘armed attack’ and ‘use of force’?

Answer 13

The determining criteria is centred upon questions of scale and effects of the attack. Moreover, in practice it appears that the gravity threshold attached to armed attacks is not markedly high, and would include most uses of force likely to cause casualties or significant property damage (The gap between the terms is therefore narrow).

Question 14

Must hostile intent be displayed in armed attacks?

Answer 14

It is not an essential element, however, the perception of an accident is highly relevant in deciding whether the use of force in self-defence is necessary or proportionate

Question 15

What is the ‘accumulation of events’ theory?

Answer 15

A number of incidents emanating from the same source and within a similar timeframe, which alone might not have met the threshold for an armed attack, might be considered in combination as an armed attack (There is consistent support for the theory - but i can be relevant in relation to anticipatory self-defense)

Question 16

Does use of force with the consent of the territorial state fall under the scope of article 2 (4)?

Answer 16

No :)

Question 17

When can the SC invoke Chapter VII of the Charter?

Answer 17

1. Threats to peace
2. Breaches of the peace
3. Acts of aggression
   (Article 39)

Question 18

Which article in the charter refers to the legal use of force by Member States authorised by the SC?

Answer 18

Article 42 : “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security…”
(When authorising, the SC will normally state “all necessary measures” in a resolution, and not necessarily refer to a specific article)

Question 19

When can the SC authorise use of force?

Answer 19

1. The Council should only authorize force if it is satisfied that non-forcible measures “would be inadequate or have proved to be inadequate” (Article 42)
2. Force on the part of the authorized State(s) must be necessary to achieve the mandate actually provided by the Council.

Question 20

What was the ‘revival argument’ made by the US and others in relation to the intervention in Iraq?

Answer 20

The argument was that resolution 1441 (that didn’t authorise force) found Iraq to be in breach of conditions set out in resolution 687, thus, ‘reviving’ the original authorization of 678.

Question 21

What are the requirements for the use of force in ‘self-defence’?

Answer 21

1. There must be an armed attack
2. The State must immediately report the exercise of self-defense to the Security Council
3. Self-defence must only be exercised until “the Security Council has taken measures necessary to maintain international peace and security”.

Question 22

Which principles must the actions taken in self-defence adhere to?

Answer 22

Necessity (There must be no choice of means) and proportionality (Aims to halt any ongoing attack) - customary law, ruled by ICJ)

Question 23

May a State rely on self-defence in order to take forcible measures prior to an armed attack?

Answer 23

Article 51 states that only “if an armed attack occurs”, however the legality of anticipatory self-defence is highly contested

Question 24

What arguments have previously been made for and against anticipatory self-defence?

Answer 24

For: Self-defence is permissable in the face of an imminent attack
Against: The wording “occurs”, eliminates the possibility to react until the attack is in happening

Question 25

May states take actions of self-defence against non-state actors?

Answer 25

Article 51 does not specify that the armed attack which gives rise to self-defence must have been carried out by a State. However, ICJ have earlier given the opinion that self-defence assumes primacy to armed attacks by states.
- There is growing recognition – including through State practice – that there are certain circumstances in which a State may have a right of self-defence against non-state actors operating extraterritorially and whose attacks cannot be attributed to the host State

Question 26

What are the implications of self-defence against non-state actors?

Answer 26

Without the attribution of the Non-state actor to the host state, then:
1. It can violate territorial integrity of the state in which the actor is located
2. It violates the prohibition of the use of force against the host state

Question 27

Is the rescuing of Nationals abroad covered by article 2(4)?

Answer 27

Depending on the existence of a de minimis threshold:
- No: The sending state does not intend to engage in any hostilities (The territorial state does not actively object)
- Yes: The operation involves or are expected to involve hostilities (And, thus, to be lawful must have legal justifications, e.g. self-defence)

Question 28

Is a State’s use of force on the territory of another State with its consent a breach of article 2 (4)?

Answer 28

No, if consent to the deployment of military personnel is validly given, there is no use of force against the host State

Question 29

Who may issue the invitation?

Answer 29

• The de jure governmental authority (even if it no longer controls some or all of the State’s territory)
• External recognition by other States
• The SC recognition

Question 30

Is it legal to intervene (by invitation) in civil wars?

Answer 30

If internal unrest reach the level of a civil war then assistance to either side is prohibited, unless one side is being given assistance in which case it might be possible for States to counter-intervene on the side of the other (However, state practise tells otherwise).

Question 31

Under what circumstances in which consent is given, is the use of force still a violation of 2 (4)?

Answer 31

• If the force goes beyond the scope requested by territorial state
• Failure to withdraw military if the consent is subsequently withdrawn

Question 32

What is a humanitarian intervention?

Answer 32

The use of force across State borders by a State (or group of States acting together) aimed at preventing or ending a humanitarian catastrophe affecting individuals other than its own citizens, without the permission of the State within whose territory force is applied.

Question 33

How can a humanitarian intervention be seen as legal?

Answer 33

if State practice and opinio juris were to be found establishing its status as an additional exception in customary international law.

Question 34

What state practise and opinio juris is there for humanitarian intervention?

Answer 34

1. Economic Community of West African States in Liberia, 1990 (This was commended by the SC)
2. UK in relation to the establishment of safe havens in Iraq, 1991
3. NATOs intervention in Kosovo, 1999 (Was met with opposition, but failed to be condemned by SC)
4. R2P norm (unanimously adopted)

Question 35

What are the scholarly response to the right of humanitarian intervention?

Answer 35

Most are of the view that State practice since 1945 is insufficient to support the conclusion that humanitarian intervention, absent consent or Security Council authorisation, is lawful

Question 36

Can cyber attacks be considered a breach of article 2 (4)?

Answer 36

The vast majority of them will fall outside the realm of ‘force’ (such as hacking networks). There is, however, the potential for cyber operations alone to directly cause serious harm. In such circumstances, an emerging view is that cyber operations may constitute a use of force or even an armed attack if their scale and effects mirror those of a traditional kinetic use of force or armed attack.

Question 37

What type of norm is the prohibition of agression?

Answer 37

A jus cogens norm

Question 38

What does case-law show on the concept of agression and state responsibility?

Answer 38

It has never been dealt with in case-law, and, thus, has not been addressed in the context of jus ad bellum

Question 39

What article (besides 39) refers to the crime of agression?

Answer 39

Article 8 bis adoption in Kampala (2010) of ICC statute.

Question 40

According to art 8 bis, what is a crime of agression?

Answer 40

“The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.

Question 41

Is the interpretation of ‘an act of agression’ by the ICC synonymous with the concept ‘act of agression’ under article 39 and the SC?

Answer 41

Nein, the State conduct element of a crime of aggression to be prosecuted under the Rome Statute may be considerably narrower than the concept of ‘act of aggression’ in Article 39 of the UN Charter

Question 42

What are the relevant rulings by ICJ on the use of force?

Answer 42

1. The Corfu Channel case
2. The Nicaragua case
3. The Oil Platforms case
4. The Armed Activities case
   - and the Advisory Opinions on:
5. Nuclear Weapons
6. The Construction of the Wall

Question 43

What was Corfu Channel case?

Answer 43

The Corfu Channel case was the first public international law case heard before the ICJ concerning state responsibility for damages at sea, as well as the doctrine of innocent passage.

Question 44

What was the Oil Platforms case?

Answer 44

In the Oil Platforms case Iran challenged the U.S. Navy’s destruction of three oil platforms in the Persian Gulf. Iran claimed that the United States had engaged in acts of aggression and unlawful use of force against Iranian oil platforms and vessels.

Question 45

What was the Armed Activities case?

Answer 45

The case concerned the alleged involvement of Uganda in the armed conflict within the Democratic Republic of the Congo (DRC) during the late 1990s.

Question 46

What were Putins legal justifications for invading Ukraine?

Answer 46

He invoked article 51 by referring to both collective (The sovereignty of Donbas - Donetsk and Luhansk) and individual self-defence (NATOS expansion eastward, The increasing threat supported by the US of Ukraine, protection of Nationals as an extension of the state)

Question 47

What is the difference between collective and individual self-defence?

Answer 47

While self- defence protects the security of the individual state, collective security aims at preserving international peace in the much broader sense of the prevention of armed conflict.

Question 48

Is there also customary law on jus ad bellum? Is that possible? In what areas?

Answer 48

Declaration on Friendly Relations has been established to resemble customary law in a matter of ICJ rulings - and Art 2(4) to be a jus cogens norm

Question 49

Is economic pressure prohibited under Art. 2(4)?

Answer 49

NO

Question 50

Can a right to humanitarian intervention be read into the UN Charter?

Answer 50

No, there is no legal grounding of HI in the Charter (Unilateral use of force is prohibited without UN mandate)

Question 51

What is the relationship between the crime of aggression and jus ad bellum?

Answer 51

Crime of Agression (not to be confused with ‘act of agression’ - art 39, is from the adoption of art. 8 bis under the kampala conference. It only relates to the jurisdiction of the ICC, and thus, not any other understanding of IL (does not prejudice or limit the interpretation)

Question 52

What is the role of the ICJ in regard to jus ad bellum? What are its limitations? Are these inherent or self-imposed?

Answer 52

• Can be norm-creating (customary)
• Few cases deal with the use of force
• The jurisdiction is case-based on consent
• influence has faded due to inconsistencies in rulings

Question 53

How much case-law has the ICJ produced in this area? What are some main findings of the ICJ on jus ad bellum? (Art 2(4), 51, etc.) Why are there inconsistencies in the case-law and can you give examples?

Question 54

What impact does this case-law have? How do states use the ICJ in this area? Do ICJ judgments/opinions matter (forever)?

Answer 54

Customary impact, however, the rulings are only applicable to the parties of the specific cases. It gives a notion of the legality of an action.

Question 55

What kind of approach has the ICJ taken to contentious matters within jus ad bellum and why so? What has the ICJ been criticized for and by whom?

Answer 55

On disputed matters the court often refuses to take any stances (Mangler mere)

Question 56

Can jus ad bellum be changed? Why/Why not?

Answer 56

Customary law (a notion of time)
- State practise and opinio juris

Question 57

If jus ad bellum can be changed, how? What has the ICJ said on this matter?

Question 58

What is the impact of the Ukraine crisis on jus ad bellum? Is it just a ‘paper tiger’? Is Ambos Right with his critique?

Question 59

How does Article 53 VCLT on jus cogens matter for jus ad bellum?

Answer 59

“treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law”
- If customary law were to change, aspects of treaties could become void (such as perhaps the right to humanitarian intervention)

Question 60

Which reasons have according to Glennon led to the collapse of jus ad bellum? Do you agree with his analysis?

Question 61

Why do most states most of the time comply with jus ad bellum? Or is jus ad bellum “dead”? Why/Why Not?

Answer 61

Countries (both western and the global south) use jus ad bellum to justify and legitimise their actions, even in situations where their actions has been condemned illegal by the international community.

Question 62

Are the rules of jus ad bellum adequate for todays world? Why/ Why not?