Use of force Flashcards
Jus ad bellum
possibility of using force in international relations
Use of force= lawful before WW1– some debated limites to use of force short of war.
After WW1: substantial and procedural limits to the resort to war; 1928 ban on war, but self-defence was implicitely preserved
UN Charter, Art. 2
- peaceful settlement of disputes:
All Members shall settle their international disputes by peaceful means in such a manner that international peace, security and justice are not endangered- ban on the unilateral use of force (JUS CONTRA BELLUM)– collective security system
All Members shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner that is incosistent with the Purpose of the present Charter.
Under this Article’s paragraph force is banned internationally, not internally. A State exercising force against its own population is not in violation of this Article, but of other international laws indeed.
There space for interpetring “force” as also of economic nature; with practice it only turned to be “military”.
- ban on the unilateral use of force (JUS CONTRA BELLUM)– collective security system
Other possible exceptions to the use of force?
No other exceptions have been found:
- consent in the use of force= no agression (is that force in international relations?)
- necessity is not allowed: interventions to protect citizens abroad? doubtful
- humanitarian intervention? no; NATO’s military operations against Serbia were unlawful
- armed support to a people fighting for self-determination? Doubtful
- legitimisation ex post? Doubtful
- self-defence against non-State actors?
- preemptive action= unlawful
International Commission on Intervention and State Sovereignity
Under the International Commission on Intervention and State Sovereignity (composed by experts), ADOPTED BY THE UN:
- Sovereign States have the obligation to protect theit citizens from avoidable catastrophe
- when they are unwilling or unable to do so, the responsibility of that shall be borne by the broader community of States
- as last resort, the international community might consider military intervention, but always only if it is authorized by the SC
Definition of Aggression
UNGA RESOLUTION ON THE DEFINITION OF AGGRESSION
Act of aggression= first use of armed force by a State in contravention of the Charter.
However, the SC may conclude if that action is indeed a first act of aggression and deem, if it is the case, that the acts concerned and their consequences are not of sufficient gravity in order to be so labelled.
Art. 3
Any of the following acts are to be considered an aggression:
a. invasion, attack by the armed forces of a State against another State
b. occupation or annexation (any military occupation) even if temporary resulting from such invasion or attack
c. bombardment by the armed forces of a State against the territory of another State
d. the use of weapons in by a State against another State
e. any blockaade of the ports or coasts of a State by the armed forces of another State
f. an attack by the armed forces of a State on the land, sea or air forces or marine and air fleets of another State
g. the use of armed forces of one State that are in the territory of another State under the conditions of a subsequent agreement, whenever these armed forces act beyond the extent and limits established by the agreement
h. the action of a State in allowing its territory, placed at the disposal of the attacking State, to be used by that State for perpetrating an act of aggression against the third State
i. the sending on behalf of a State of armed groups, bands or mercenaries against another State, so with the SUBSTANTIAL INVOLVEMENT of the sending State, that commit acts amounting to the others listed above
Art. 4
The acts enumerated are not exhaustive and for this reason the SC may determine that other acts constitute an act of aggression.
Art. 6
The provisions of the Charter shall not either be enlarged nor diminished in their scope, including the provisions concerning cases of lawful use of force
Security Council’s role, Art. 24
Art. 24 UN Charter
1. To ensure prompt and effective action by the UN, its Members confer on the SC primary responsibility for the maintenance of international peace and security– the SC will act on behalf of these duties
2. The SC might discharge such duties in accordance with the Purposes and Principles of the UN. The powers for discharging the duties are laid in Chapters VI, VII, VIII, and XII
The SC has a “primary” role in the preservation of international peace and security, while the GA has a “secondary” role (check Art. 14 for more)
Chapter VII, UN Charter, Art. 39, 40, 42, 48
Art. 39
The determination of an act of aggression falls on the SC that shall also decide or recommend what measures to take in accordance with Articles 41 and 42 in order to restore international peace and security
This is the only Article that merely deals with the distinction between recommendations (not binding) and decision (binding on all UN Members)
Art. 40 UN Charter
To prevent the aggravation of a situation the SC may call upon the parties concerned to adopt provisional measures without prejudice to their rights, claims or position. The failure to comply with such measures will be taken into account by the SC.
Art. 42
When measures being produced by Article 41 are inadequate, the SC may take armed action if necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade and other operations by air, sea or land forces of Members of the UN.
Art. 48
The action required to maintain or restore peace and security shall be taken by all Members of the UN or only by some of them as the SC may determine
UN Charter, Art. 25 and 103
Art. 25 UN Charter
The Members of the UN agree to accept and carry out the decisions of the Security Council
Art. 103 UN Charter
In case for a State of clashes between obligations produced by the present Charter and obligations produced by any other international agreement, the obligations under the present Charter shall prevail.
UN Charter, Art. 12-13-14
It addresses two main characteristics of the GA:
- The GA cannot produce legally binding decisions as for the SC. It is true that the drafters of the UN modelled a centralized international system but only with regard to the decisions of the SC that are indeed legally binding on all UN Members, as established by Article 25. The GA can only issue recommendations, regardless of the origin; GA cannot reccomend over topics already dealt with by the SC (Art. 12)
- The GA can only deal with matters that are in the SC’s agenda. While they are both “guardians” of international peace and order, in practice the SC is more involved in such a duty, whilst the GA is more concerned with humanitarian, social and economic aspects of the same matter.
UN Charter, Art. 41
Art. 41 UN Charter
The SC may decide what measures (sanctions) not involving the use of armed force are to be employed to give effects to its decisions and may call upon its Members to apply such measures. These may include complete or partial interruption of economic relations, of means of communication and severance of diplomatic relations.
Sanctions are aimed at compelling particular actors to change their behaviour. It is to notice that the SC’s duty is to prevent as well, therefore sanctions are not only is respondance of unlawful conducts but also to those behaviours that contribute to a threat to peace or aggression.
Sanctions are typically aimed at paralyzing the economy of a State.
Problem: in this way basic needs might come short in the country producing notable effects on civil population– sanctions have become a last resort measure.
SOLUTION:
- the SC enact the “smart sanctions”, meaning targeted or selective sanctions applied to certain commodities taking account of the impact on groups.
- Individual sanctions: the SC freezes the assets of those responsible for the conduct. Problem: no reasons are given to individuals for being “listed”
The term targeted sanctions apply both to particular goods and individuals.
If a State does not implement sanctions against a guilty State according to Article 41, it may the case that the SC decides to coerce the former State to implement them (under Article 42)
UN Charter, Art. 43
Art. 43
1. All Members of the UN shall put to the disposal of the SC, on its request and in accordance with a special agreement, armed forces, assistance and facilisties, including the right of passage, necessary for the purpose of maintaining international peace and security
2. Such agreement or agreements shall govern the numbers and types of forces, degree of readiness and general location and the nature of the facilities and assistance provided
3. The agreement or agreements shall be negotiated as soon as possible on the SC’s initative. They shall be concluded between the SC and one or more Members and subject to ratification by all States in accordance with their own constitutional procedure.
This Article has never been put into practice, no agreement was ever concluded.
UN only militarly acted under two actors:
- peace-keeping forces:
not envisioned in the Charter, product of practice. They were firstly created to carry out peace-building activities but later recevied ever more extensive mandates that allowed them to use force in “self-defence” (only situation for using force) for every obstacle that would prevent them from accomplishing their mandate. Sometimes they receveid clear instructions to use “all necessary means”. Peace-keeping operations are implemented and financed by the UN.
- State/States: the SC delegates the implementation of a military operation (in response to abscence of a centralized military force). This possibility is create by Article 53.
These delegations are typically entrusted to coalitions– possible problem: when delegating it is up to the enacting parties to decide when international peace and security are restored (= termination of operations)
UN Charter, Art. 51
Art. 51 of the UN Charter provides for one exception:
SELF-DEFENCE is an INHERENT RIGHT OF INDIVIDUALS AND COLLECTIVES if an armed attack occurs. This right lasts up until the SC has taken measures necessary to maintain international peace and security.
Any action taken by a State Member shall be notified to the SC while not affecting the authority and most of all responsibility of the latter to take any action as it deems necessary to restore peace and security.
Self-defence shall:
- be used only in response to an armed attack: ARMED ATTACK IS NOT USE OF FORCE: use of force does not necessarily result into an armed attack, and therefore does not produce right to self-defence. There is no clear distinction between what can be considered armed attack and simple use of force.
In addition, Art. 51 infers that the armed attack must come from a State in order for the right to self-defence to produce its effects, while if the attack comes from a non-State actor, the effects are not produced. Things changed after 2001, when such right was recognized. However a State may not violate the integrity and territory of another State whenever the terrorists are hosted by another State. The State exercising self-defence shall engage in diplomatic activity with the hosting State. A doctrine of the “unable or unwilling to cooperate” has been adopted to justify actions against terrorists on other State’s territory, but it is much controversial. - be necessary and proportionate: “necessary” means that the State must have attempted to use any other diplomatic mean to avoid the conflict; “proportionate” is interpreted as the equal damage produced by the attack and the counter-attack
- be notified to the SC: not notifying will not affect the legality of the act but will undermine the basis that the State was acting in self-defence. As said before the SC may take at any time measures as it deems necessary and the right to self-defense will cease when the SC has taken decisions
Armed attack and armed aggression are the same.
ANTICIPATORY SELF-DEFENCE IS NOT INTERCEPTIVE SELF-DEFENCE: widespread recognized is the right to anticipatory self defence but only when the threat is imminent, overwhelming and there’s no time to deliberate.
In order for an act concerning the use of force to be deemed as self-defence there are some requisites under customary law:
- necessity
- proportionality
- immediacy (?)
UN Charter, Art. 51
Art. 51 of the UN Charter provides for one exception:
SELF-DEFENCE is an INHERENT RIGHT OF INDIVIDUALS AND COLLECTIVES if an armed attack occurs. This right lasts up until the SC has taken measures necessary to maintain international peace and security.
Any action taken by a State Member shall be notified to the SC while not affecting the authority and most of all responsibility of the latter to take any action as it deems necessary to restore peace and security.
Self-defence shall:
- be used only in response to an armed attack: ARMED ATTACK IS NOT USE OF FORCE: use of force does not necessarily result into an armed attack, and therefore does not produce right to self-defence. There is no clear distinction between what can be considered armed attack and simple use of force.
In addition, Art. 51 infers that the armed attack must come from a State in order for the right to self-defence to produce its effects, while if the attack comes from a non-State actor, the effects are not produced. Things changed after 2001, when such right was recognized. However a State may not violate the integrity and territory of another State whenever the terrorists are hosted by another State. The State exercising self-defence shall engage in diplomatic activity with the hosting State. A doctrine of the “unable or unwilling to cooperate” has been adopted to justify actions against terrorists on other State’s territory, but it is much controversial. - be necessary and proportionate: “necessary” means that the State must have attempted to use any other diplomatic mean to avoid the conflict; “proportionate” is interpreted as the equal damage produced by the attack and the counter-attack
- be notified to the SC: not notifying will not affect the legality of the act but will undermine the basis that the State was acting in self-defence. As said before the SC may take at any time measures as it deems necessary and the right to self-defense will cease when the SC has taken decisions
Armed attack and armed aggression are the same.
ANTICIPATORY SELF-DEFENCE IS NOT INTERCEPTIVE SELF-DEFENCE: widespread recognized is the right to anticipatory self defence but only when the threat is imminent, overwhelming and there’s no time to deliberate.
In order for an act concerning the use of force to be deemed as self-defence there are some requisites under customary law:
- necessity
- proportionality
- immediacy (?)
