The Use Of Force Flashcards
What is the concept of a just war?
It has to be done under the authority of a princeThere has to be just causeIt had to have the right intention- to promote good
Where can you find the modern prohibition of the use of force
Art 2(4) UN charter
Why was the use of force justified in the Grenada case?
Protection of us nationalsA request to intervene from the organisation of Eastern Caribbean StatesA request from the Governor General of Grenada
Why is the request of the use of force always dubious?
Often masks an illegal use of forceIf they are in civil war no one is competent to ask
What are some legal uses of force under the charter
Art 1(1) removal of threatsArt 39 to determine a breach of peace and make recommendations as to how to fix it
Where can you find self defence under the charter?
Art 51
What does art 51 state?
Inherent right of individual or collective self defence if an armed attack occurs
What is the meaning of inherent self defence in the Nicaragua case?
Pre-existing
What is the meaning of inherent self defence in the Caroline case?
To claim self defence you need an instant and overwhelming thing leaving no choice
What did the ICJ say about collective self defence in the Nicaragua case?
They supported it BUT before another state can come to your aid the state must request assistance and declare itself a victim
Does the threat of the Use of force constitute an armed attack?
No
Is giving another state weapons an armed attack?
No, but supplying forces is
An example of the security council acting on a breach of peace and saying it had to stop
Falkland Islands, saying that the Argentinians had to withdraw
What did the naulilaa case define a reprisal as
An act of self help by the injured state responding to an act contrary to PIL by the offending state
Harib fort incident
An attack against the UK which the UK responded to - this was deplored
What are some proposed conditions for the use of anticipatory self defence?
Necessity, imminence and proportionality
Self defence in cases of attacks on nationals abroadSir Humphrey waldock’s criteria
Imminent threat Failure of territorial sovereign to protectMeasures of protection strictly confined to the object of protecting them against injury
What did professor dugard’s draft articles look at
Art 2Gave exceptions in the case of rescue of nationals where…
Can a terrorist attack amount to an armed attack?
Justifying action of self defence under s1
What did the Chatham house case say
About terrorismYou may not be responsible as a state but you are responsible for your territory not being used for attacks
Security council res 1368
About the 9/11 recognised collective self defence
An example of the attacked state using force against the state in which the terrorists have based themselves
Libya blowing up a U.S. Nightclub that was frequented by marines
What has been argued about the right to humanitarian intervention?
That it existed pre charter law and has survived it
ECOMOG
Possible example of humanitarian intervention
NATO intervention of Kosovo
The SC refused to authorise force but NATO took action anyway Since this the UK supports humanitarian intervention in certain circumstances
What does art 42 of the UN charter say?
The security council can use force to restore peace
What does article 43 of the UN charter say, and how is it limited?
Members undertook to make armed forces available to the security councilThis never came into force
Korean War
It was suggested that the UN members helped to restore the peace
Where do you find that there is nothing in the charter to allow the UN to intervene in affairs that are in the domestic jurisdiction?
Art 2(7)
Somalia as a collective security example
collective security example
What resolution authorised a unified task force in Somalia as collective security?
Res 794
What was an issue with the collective security of Somalia?
Their mandate was far too broad They wanted to disarm militants, restore law and order, assist in the establishment of a gov etc…
What resolution allowed economic sanctions and arms against Libya
Collective security Res 1970
What was controversial about the Lydian operation
NATO was in open support of the rebels against gadaffi
What is a recent example of failure of collective security?
Syria
How did Syria begin?
2011 protests being brutally suppressed
Why couldn’t the SC authorise force against those in Syria?
Because two of their permenant seats Russia and China would veto it
What happened in the Geneva peace talks about Syria
Agreements on a local ceasefire to let women and children leave, this is yet to happen
Oliver Corten
Looks at the restrictive approach, which focuses on the customary and treaty rules and strictly applies to the ICJ approach
What is the restrictive approach?
- A state must invoke a new right I.e. Claim that a modification of the rule occurred 2. This claim must be accepted by the other state
What is the extensive approach?
Those who believe that positive always can only correspond to objective law, that is, rules considered as necessary in a given social context and at a given historical periodIn this sense humanitarian intervention is allowed- think about a fire engine running a red light to get to a fire (illegal but allowed)
1994 Rwandan genocide
No humanitarian intervention
What did the international commission on intervention and state sovereignty call for?
A responsibility to protect
Which states don’t want to see anticipatory self defence?
India and China
You cannot take a cumulative approach to anticipatory self defence
Oil platforms case
The argument of self preservation for self defence
This was considered too wide in the Caroline incidentIf this had been the case then there would have been no conviction in Dudley v Stephens (cabin boy)
Where defines what an armed attack is?
Oil platforms case
What case stressed the difference between unlawful intervention and an armed attack?
Nicaragua
What about self defence against large non- state actors
The courts left it for another day to decide Eg. The 9/11
Appropriate military target
You need military action to try to end the conflict not to force retribution
What about necessity in self defence
You cannot use self defence if there is any other means available
Proportionality in self defence
Proportionality is not limited to what has happened but what could happen
Security council authorisation of the use of force
- has be a worry that states would use authorisations to pursue their own interests- the SC resolutions have been used and relied on as justification for force- disagreements on whether limitations are being respected
What is likely by 2017?
That the ICC will have some authorisation our aggression
What is a legitimate target in an armed attack?
S2(b)(v) a bridge could qualify
Is there a prohibition on weapons in an armed attack?
Not so much a prohibition on weapons but in how you can use weapons
What is the humanitarian rule in armed conflict?
Protection of the sick, shipwrecked, prisoners of war etc. in conflict
What is the meaning of the threat or use of force?
Mere supply of funds was not the use of forcePossession of nuclear weapons not an unlawful threat of force
What did the UK try to argue in the corfu Chanel case
For cable intervention in Albanian territorial waters to recover evidence did not violate the article because it’s action did not threaten the territorial integrity/ political independence of Albania
Israelis attack on Iraqi nuclear reactor
Tried to justify it with self defence
Who do you use as a critic for force?
Christine gray
What was the bush doctrine of self defence?
The notion of immanence should be reexamined
The UN high panel of judges
Rejected pre emptive self defence
The use of western troops to secure safe haven for Iraq after the gulf war
Humanitarian intervention used as an excuseNo express authorisation by the UN
The UK guidelines on humanitarian intervention
Is there convincing evidenceThere is no practical alternativeThe proposed use of force must be necessary and proportionate
Security council resolution 84
Said that it may be necessary for members of the UN to go in and restore peace
Security council resolution 660
Demanded Iraq withdraw forces from Kuwait
Security council resolution 1441
Gave Iraq a final chance to disarm They were in breach of their cease fire
The legality of the Iraq war
UK and U.S. Think it’s legal Argued that previous SC resolutions authorised invasion- critics say they need specific authorisation
What does article 39 say
The SC has the power to rule on the legality of warThe UK and U.S. Have veto power so this is unlikely to occur
Legality of desert storm
Iraq, because of the Iraqi invasion of Kuwait SC resolution 675 aloud use of forceAsked Iraq to withdraw, they didn’t, this bought the cease fire of resolution 687 to an end
What some extra bits to self defence set out in dessert storm?
May only be exercised after the security council has taken measures to ensure their national peaceThere has to be more than ‘a threat’The development/ possession of nuclear weapons does not count
Security council resolution 661
Limits imports to Iraq (the second one)
Legal basis for the invasion of Afghanistan
No SC res authorised force Widely seen as a legitimate use of self defence under the charterThe UK and U.S. Said they had some link to the 9/11 and so was justified
Security council 1368
Condemned 9/11 and said it was ready to take action
SC resolution 1373
How to act against terrorismFreeze assets
What did the Secretary General of the UN say on the 8th oct 2001?
Stopped short of endorsing the air strikes on Afghanistan but did not condemn them
What did NATO do after the 9/11?
Bought article 5 of the NATO treaty into effect, an attack on one is an attack on all
