Midterm 2 Flashcards
1
Q
Jus ad bellum vs Jus in bello
A
- Former is defining when it is just to go to war while latter is rules governing how wars are fought
2
Q
Early conceptions of jus ad bellum
A
- People like Sun Tzu actually mostly covered how wars are fought, not until writings of Christian Just War Tradition and Sts. Augustine + Aquinas that concept was talked about
- Augustine synthesized works of early Greek and Roman scholars, suggested that war is legitimate if immediate reasons for going to war are just, if state of war is declared via proper authority such as sovereign, if purpose of war is to obtain peace
- Aquinas has same three as Augustine but also says that even defensive wars are only just if all three conditions are in place simultaneously, also defensive wars become aggressive wars if more force is used than necessary (concept of proportionality)
- Dutch scholar Hugo Grotius says needs just cause (self-defense or punishment for injury and cannot be preemptive strike), end does not justify means, wars must be fought with reasonable chance of success, governments must publicly declare wars (shows resoluteness to opponent), declared by sovereign, must be last resort
3
Q
Problems with Christian just war tradition
A
- Didn’t actually change much in terms of states going to war (just writers offering guidance)
- Possible for both sides of conflict to have just war (such as if injuries have occurred on both sides)
4
Q
19th and early 20th century attempts of jus ad bellum
A
- Hague peace conferences in 1899 and 1907 which dealt mostly with jus in bello, primary rule that came out of second one was agreement to limit right to use force in collecting foreign debts (only if debtor agreed to arbitration and terms imposed upon it)
- Covenant of League of Nations where states agree that disputes will be placed before international court, arbitration or League itself before going to war
- -> Did help to resolve minor conflicts such as Finland-Sweden, Albania-Yugoslavia, Greece-Bulgaria, Columbia-Peru but failed in Italian invasion of Ethiopia, Manchuria-Japan
- Kellogg-Briand pact that abolished war as legal instrument of foreign policy (however no enforcement, still permission for self-defense, subverted by China and Japan in 1930s by not formally declaring war, did not prevent WW2)
5
Q
Article 2(4) of UN charter
A
- Central provision prohibits force (all members shall refrain from threat or use of force against one another)
- -> Problem is defining force vs war (state practice commonly views it as military force but many countries viewed it also as economic or other sanctions such as 1993 North Korea saying sanctions = act of war)
- Framers’ intent: record exists of discussion that suggests unlawful military force being of foremost importance
- Ordinary and apparent meaning: strongly implies military force
- Etiological approach: favors military force since sanctions and other things are discussed in other parts of UN charter
- Also refers to force against political independence or territorial integrity, so things like stopping genocides may be allowed (also this interpretation has been contested and was rejected by ICJ in Corfu channel case)
6
Q
Vienna convention on rules of treaties
A
- Treaty on treaty interpretation, factors in framers’ intent in creating treaty, apparent meaning, and etiological approach (overall purpose and goal of treaty)
7
Q
Alternative conceptions of use of force in international law
A
- Brezhnev doctrine (SU and allies have duty and legal right to use whatever means necessary to prevent fall of existing Communist or socialist regime), used to retroactively justify invasion of Czechslovakia, intervention in Afghanistan
- Third world claim that colonized peoples should have right to use of force in name of liberation (used by India to justify intervention on behalf of Bangladesh in Pakistan civil war)
- Humanitarian intervention (also used by India because claimed that West Pakistan was committing atrocities in East Pakistan), often opposed by Third World (imperialism)
- Passive personality principle (when state national is target of violence, especially if confronted by terrorist group), examples are 1964 Stanleyville raid and 1976 Entebbe raids to rescue hostages which weren’t authorized by Congo and Uganda governments
8
Q
Obsolete Charter claim to self defense
A
- Articles 53 and 107 say that if defeated Axis powers renege on surrender, force can be used without getting UNSC permission (was explicitly noted to be a transitional security arrangement so not permanent)
- SU in 1971 claimed that provision remained operative although out of political dispute and unlikely that people thought would be active
9
Q
Charter 51 claim to self defense
A
- Can engage in individual or collective self defense if subject to armed attack
- Armed attack needs to cross a certain threshold, and if does not reach threshold then need to use alternative means other than use of force
- Designed to stop states from using things like minor border provocations to escalate into a full scale war
- Problem is that no precise threshold that triggers right to self defense and aggressors can exploit threshold to continually engage in acts that do not cross it
- Lack of explicit definition was placed by major powers who did not want to have a forced commitment, opposed by smaller powers who thought might lead to another world war
10
Q
Russia-Turkey plane
A
- 2015 Russian-Turkish border dispute where Turkey shoots down Russian jet for flying over its territory, international community says that even if jet flew along route that Turks claimed, the jet would have only flew over Turkey for 17s and therefore no just claim to shoot it down
- Turkey acknowledges impropriety of action and apologizes to Russia
11
Q
Attempts to clarify armed attack threshold
A
- ICJ Corfu Channel case where British ships sail through channel claimed to be Albanian territory, fired on once and hit by mines second time. ICJ finds that Albania was in wrong to place mines in waterway and had to pay reparations to Britain, but efforts by Britain to remove mines violated Albanian sovereignty because minesweeping is not innocent passage so should have used diplomatic response
- ICJ Nicaragua case where US sells weapons to Contras, places mines on coastline to make it hard for Cuba and SU to supply country in response to Nicaragua arming rebels in El Salvador
- -> ICJ rules that indirect force via arming El Salvador was not an armed attack, also US decision to place mines was armed attack (controversy because people said US actions same as Nicaraguan actions, also might be incentive to engage in indirect guerilla warfare as long as not directly commanding these activities)
12
Q
How does UNSC authorize action?
A
- UNSC considers crisis and determines whether it is threat/breach of peace or act of aggression, decides on response (through Articles 39-42)
- Crisis only constitutes one of these three if UNSC says that it is in the determination phase, after which it can bring it to vote where UNSC decides whether constitutes it (9/15 with no veto, 1980 Iraqi invasion of Iran not declared breach of peace until 1987, prior to which it just called for ceasefire)
- Types of situations that constitute this have expanded post-Cold War with things like “lack of democracy,” human rights violations, acts of terrorism, etc so technically UNSC can define anything that it agrees upon as one of three
- Second stage is recommending and decide on response (recommendations technically not binding until decided upon and countries may block latter stage if not happy with action) also with 9/15 and no veto
- Types of measures can be provisional to start with, very open ended from sanctions to blockades to use of force, could also just do nothing even if determine that situation is threat to peace (or just issue diplomatic statement / watch for further developments)
- Disagreements are common and sometimes resolutions defied such as where UNSC calls Korean War a violation and China, SU defy and help North
13
Q
Caroline Test for necessity of self-defense
A
- 1837 Upper Canada rebellion led by William Mackenzie is routed by British, many survivors flee to Navy Island in Niagara river (goal is Republic of Canada)
- Sympathetic US citizens supply rebels with cannons and muskets and launch raids, British grow tired and sail to Navy Island and capture the Caroline ship that raids were being launched from, take it from US side of river and set it on fire (rebels flee to US and many arrested)
- However US unhappy with British killing US citizens, entering territory, sinking US ship so ministers Webster and Ashburton exchange letters with latter saying that UK was engaging in self-defense, former saying that actions were illegitimate
- Webster lists criteria that would have constituted self-defense that becomes Caroline Test (action must be instant, overwhelming, leaving no choice of means and no moment for deliberation) that becomes widely accepted custom in international law
14
Q
How does proportionality arise?
A
- Aquinas saying defensive act may become aggressive if employs more violence than necessary
- Does not mean amount of force employed by defender must be same as amount of illegitimate force employed by attacker (don’t have to stop at 100 troops if aggressor kills 100 troops), rather response must just be appropriate to circumstances and able to address provocation
- Israel’s cumulative consideration says that considers entire action like rocket attacks as a whole and not the individual rockets in the attacks (Middle Eastern neighbors disagree)
15
Q
Belligerent reprisal
A
- Concept that aggressive illegal act can be responded to with own illegal act
- Accepted limits are cannot harm POWs / shipwrecked sailors / cultural artifacts
