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International Law > Use of Force > Flashcards

Use of Force Flashcards

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1
Q

What are the Big Issues concerning use of force?

A
  • Sovereignty and the principle of non-intervention
  • Law and politics
  • Lw and war
  • -> the distinction between war and peace
  • -> law as the language of war
  • -> law as legitimating and limiting war
  • Development of the use of force legal regime
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2
Q

How does the Issue of law and politics factor into the use of force?

A
  • IL as consensus based: contentious issues = division
  • Gray: protection of nationals as pretext masking intention of overthrowing government
  • Gray: states manipulate rules for their own national interests
  • -> US in Grenada 1976 - coup brought socialist gvt into power, US intervened and vetoed the UNSC Resolution condemning its intervention
  • Koskenniemi: fight for international RoL is a fight against politics; politics in IL is inevitable but should be constrained by neutral, objective rules –> the liberal impulse to escape politics
  • Koskenniemi: critics say IL is too apologetic to states’ political power; or too utopian
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3
Q

How does the Issue of law being the language of war factor into the use of force?

A
  • David Kennedy: military and humanitarian professionals are speaking using the same legal vocabulary
  • Lawfare: law shapes the politics and practice of war
  • Law provides the terminiology for war: infrastruture and framework for pursuing war
  • Examples of intervention in Kosovo and invasion in Iraq being deemed unlawful and are therefore llegitimate. The moral judgment follows the evaluation of legality.
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4
Q

How does the Issue of law both legitimating and limiting war factor into the use of force?

A

David Kennedy

  • Law acts as a gatekeeper
  • Law sets the conditions; if action is lawful then it can be taken, if not, it cannot
  • Examples of intervention in Kosovo and invasion in Iraq being deemed unlawful and are therefore llegitimate. The moral judgment follows the evaluation of legality.
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5
Q

How does the Issue of sovereignty and non-intervention factor into the use of force?

A
  • Classical Westphalian conception of sovereignty being defined by non-intervention with territorial integrity
    Kofi Annan for The Economist in 1999:
  • basic sense of sovereignty being redefined
  • impact of globalisation and international cooperation
  • States are instruments for attaining the needs of their peoples, not the other way around
  • in today’s context, modern challenges mean that collective interest IS the national interest
  • the rise of the individual and concern for fundamental rights: humankind is less willing to accept suffering in its midst, and more willing to do something about it
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6
Q

What are the key debates concerning the use of force generally?

A
  • the prohibition
  • the exceptions
  • understanding of the key concepts in this field (e.g. force, armed attack, imminent etc)
  • the UNSC’s role in the regime
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7
Q

Outline where the prohibition on the use of force is included in international law

A

UN Charter Art 2(4)
- All Members are to refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of other states

CIL

  • generally accepted that war is prohibited
  • Nicaragua case supports here

ICJ rulings

  • Nicaragua case: ICJ confirmed the prohibition as being part of CIL, as well as the right to self-defence. Arbitration was on the basis of CIL
  • Corfu Channel case: confirmed the broad nature of the Charter’s prohibitory regime

Treaties

  • Declaration on Friendly Relations (1970); it is a duty to refrain from the threat or use of force. Threat or use of force constitutes a violation of international law.
  • Definition of Aggression (1974) Art 5(1): No political, economic or military considerations can be a justification for aggression
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8
Q

Outline the debate about the prohibition on the use of force

A

The prohibition is wide and strict: all force in all situations is banned

  • Declaration on Friendly Relations (1970)
  • Definition of Aggression (1974), art 5(1)
  • Corfu Channel case

The prohibition is narrow and flexible: there are exceptions
- UK, USA and Israel seem to take this approach

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9
Q

What are some exceptions to the prohibition of the use of force?

A

Self-defence:

  • CIL, per Nicaragua case
  • UN Charter Article 51

Collective security:

  • UN Charter Chapter VII powers
  • -> Article 39, 41, 42, 43

Contentious:

  • Pre-emptive self-defence
  • Humanitarian intervention
  • R2P
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10
Q

Outline the exception of self-defence

A

UN Charter Article 51:
UN Member states have an inherent right to individual or collective self-defence against an armed attack. This right exists until the Security Council steps in and takes necessary measures according to maintain international peace and security

CIL

  • The Caroline (1837): element of imminence emerged from this case
  • Nicaragua case confirmed that self-defence is a right that exists in CIL

Relevant cases

  • Nicaragua
  • Corfu Channel case
  • Armed Activities (DRC v Congo)
  • Oil Platforms

Use of force only against an imminent armed attack

  • pre-emptive self-defence is contested
  • some think that CIL anticipatory self-defence survives under Art 51
  • cannot be punitive
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11
Q

Outline the debate about pre-emptive self defence

A
  • Claimed exception, primarily used by the US in its war on terror
  • descriptive question of whether it actually is accepted
  • normative question of whether is should be accepted
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12
Q

Outline the debate about self-defence

A
  • A debate about interpretation: whether pre-emptive self defence is legitimate
  • A debate about whether it is the only accepted exception
  • -> in the Charter, yes. But maybe CIL informs of others?
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13
Q

Outline the debate about of humanitarian intervention

A

Proponents

  • human rights and fundamental freedoms
  • in line with purposes of the UN

Opponents

  • sovereignty
  • imperialism + colonial roots of IL
  • the case of Kosovo 1999 as an example
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14
Q

What are some key facts about the use of force?

A 
UN Charter Regime 
- Article 2(4)
- Article 51
Treaties
- Declaration on Friendly Relations (1970)
- Definition of Aggression (1974) Article 5(1)
CIL
- The Caroline (1837)
- Nicaragua (1986)
Cases
- The Caroline (1837)
- Nicaragua case (1986)
- Corfu Channel case
- Legality of Use of Force
- Armed Activities (DRC v Uganda) 
Case studies
- Afghanistan 2001
- Iraq 2003
- The US in Grenada 1976
- Kosovo 1999
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15
Q

Outline UN Charter Article 2(4)

A

All UN Member States will refrain in their international relations from using force against the territorial integrity of other states. Forcible measures shall not be the method of conflict resolution

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16
Q

Development of the legal regime: how did the prohibition on the use of force develop? What was the rationale for prohibition?

A

Just/unjust war distinction by theologians and jurists

Hague Conventions 1899 and 1907

  • emphasis on mediation for the peaceful resolution of conflict, not war
  • requirement of a formal declaration of war - more technical procedure

Covenant of the League of Nations Article 12
- arbitration and judicial settlement to be sought in disputes before any resort to war

Charter of the UN Article 2(4)
- prohibition on the use of force, i.e. not just war but force in general

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17
Q

Outline the Nicaragua case and how it is relevant to the use of force

A

Facts
- a rebel group called the Contas was getting support from the US. Nicaragua directed its force against the US.
- Nicaragua would only be justified in its self-defence if the US exercised effective control over the Contras
- US funding wasn’t enough to suffice as effective control
Relevance
- The effective control test: workable in today’s context?
- Confirmed that the prohibition and the right to self-defence are contained in CIL
- defined an armed attack as more than the use of force. Armed attack = grave form of use of force

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18
Q

Outline the example of Kosovo 1999 and how it is relevant to the use of force

A
  • Human rights abuses by Serbia against Kosovar Albanians in the aftermath of the breakdown of former Yugoslavia
  • NATO forces embarked on a 78 day military campaign to end the atrocities. Did so without UN Security council authorisation, instead claiming legitimacy on basis of humanitarian reasons
  • 10,000+ bombing missions; hundreds of civilians died; non-military objects targeted, e.g. electricity supplies; displaced peoples and refugees
    RELEVANCE
  • legitimacy of humanitarian intervention; human rights protection as the basis
  • Issues: proportionality; worse repercussions; mixed motives; selectivity
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19
Q

Outline the Corfu Channel case and how it is relevant to the use of force

A
  • British soldiers died in mines under the Corfu Channel, which lies in Albanian jurisdiction
  • UK commissioned minesweeping operation and claimed: mission was for evidence collection, and for self-protection so wasn’t violation of prohibition
  • ICJ rejected both of these points (see poster)
    RELEVANCE
  • strict interpretation of prohibition on use of force and
  • interplay of law and politics: court noted that ‘evidence collection’ could be a policy abused by powerful states
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20
Q

Is the legal regime on the use of force flawed?

A

-

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21
Q

The UN Security Council system of collective security is ineffective

A

-

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22
Q

Are states denied meaningful powers relating to the use of force?

A

-

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23
Q

What are some contemporary challenges in the discussion on the use of force?

A
  • Terrorism: war on terror case studies; the idea of non-state armed groups in the context of self-defence
  • Cyber warfare: the changing nature of force and attacks
  • Humanitarian crises: greater concern for human rights and fundamental freedoms;
  • -> Kofi Annan for The Economist on humankind being more willing to take action; States are instruments, not people
24
Q

How does terrorism pose a challenge in the discussion on the use of force?

A

Conceptual challenge

  • extremely organised, but not states
  • criminal, but not ordinary
  • involved in international disputes, but not armed forces
  • deeply affect states, but states struggle to find a response

Legal challenge
- may operate within, but not be controlled by, a state: what does this mean for the effective control test?

Case studies
- Afghanistan 2001; Iraq 2003

25
Q

How does cyber warfare pose a challenge in the discussion on the use of force?

A
  • Does it constitute an armed attack? Is it grave and serious enough?
  • What does imminence mean in the context of a cyber attack? Where is the line drawn between imminent and already happened?
  • Can a victim state use actual force against a cyber attack? Would this be proportionate?
26
Q

How do humanitarian crises and human rights concerns pose a challenge in the discussion on the use of force?

A
  • Human rights-based protection can lend itself to larg-scale abuse
  • -> no actual guidelines
  • -> only states with military capacity can intervene on this basis: prerogative of powerful states
  • How do human rights crises become a right to intervention? Also, whose right?
  • -> the right of the oppressed population to be ‘saved’?
  • -> the right of the powerful state with military capacity?
  • When does a crisis warrant an exception?
  • -> how many violations need to have occurred?
  • -> how are the risks to the oppressed population weighed against the risks to soldiers?
27
Q

Should pre-emptive self-defence be an exception to the prohibition on the use of force? (normative)

A
  • potential of regressive arguments
  • -> imminence would lose its meaning
  • -> what are the limits of pre-emptory action; how remote can the threat or use be?
28
Q

Is pre-emptive self-defence an exception to the prohibition on the use of force? (descriptive)

A

Generally not accepted as one.

  • It’s not embodied in Article 2(4) or CIL
  • Can’t really say state practice of PE SD has emerged, as it’s mostly a claim made by the US
29
Q

Outline the debate on the concept of “imminent” in the context of the right to self-defence

A

Self-defence only legitimate against an imminent attack; a question of the remoteness of the threat

The Caroline (1837) case

30
Q

Outline the debate on the concept of “armed attack” in the use of force

A

In the context of self-defence

Impact of cyber warfare: different nature of force in these scenarios

31
Q

How does the Security Council fit into this debate on the use of force?

A

UN Charter Chapter VII powers

  • authorises action through resolutions
  • both forcible and non-forcible measures envisaged
32
Q

Is the prohibition on the use of force aboslute/strict? (descriptive)

A

Default interpretation of the prohibition is that it is strict
- Corfu Channel case
-

33
Q

Does the prohibition on the use of force constitute a restrictive legal regime?

A

-

34
Q

Should the prohibition on the use of force be narrow?

A

-

35
Q

How do humanitarian crises and concerns for human rights pose a challengein the discussion of the use of force?

A
  • introduce the issue of humanitarian intervention
36
Q

Outline UN Charter Article 51

A

Self-defence

37
Q

What is the relevance of The Caroline (1837) ?

A

Concerns the requirement of imminence of the threat so as to justify use of force in self-defence as being necessary

A dispute between Canadian and American, and British parties

38
Q

What is the relevance of the Nuclear Weapons Advisory Opinion?

A

-

39
Q

What is the relevance of the DRC v Uganda case?

A

-

40
Q

What is the relevance of the Oil Platforms Case (2003)?

A

Self-defence cannot be used for opportunistic means

41
Q

How could humanitarian intervention be considered legitimate?

A

human rights protection > state sovereignty

CIL

UN Charter Article 1(3) - general purpose

IHRL

42
Q

What is the relevance of the Legality of Use of Force cases for the use of force?

A

Several cases: brought by the Federal Republic of Yugoslavia against states including UK, US, Spain, France, Belgium, Canda and Italy

43
Q

Outline the case study of Kosovo 1999

A

NATO bombing campaign on the basis of humanitarian intervention; the former Yugoslavia

44
Q

Outline UN Charter Article 1(3)

A

Relevant to humanitarian intervention; the purpose of the UN to protect human rights and fundamental freedoms

45
Q

Humanitarian intervention should be a legitimate exception to the prohibition of the use of force (normative

A

In Favour
- consistent with the purposes of the UN Charter
Against

46
Q

The protection of human rights has primacy over state sovereignty

A

Relevant to the debate over humanitarian intervention

47
Q

What are some recent humanitarian crises that are relevant to the humanitarian intervention debate?

A

Myanmar

48
Q

The alternatives to the UN Security Council system of collective security are less desirable than the system itself

A

-

49
Q

Outline the idea of revived or implied authorisation in the context of the UN Security Council system of collective security

A

Part of the argument of the US, UK and Australia in the war on terror
- revived the authorisation in previous resolutions as the basis of intervention

50
Q

Outline the UN Charter Chapter VII powers

A

Article 39

Article 41 - non-forcible measures

Article 42 - forcible measures if appropriate following Art 41

Article 43

51
Q

Explain the challenge of the lack of a standing army to the effectiveness of the UN Security Council’s system of collective security

A

Reliance on a coalition of the willing

52
Q

Explain the relevance of UN Charter Article 27 to the UN Security Council’s system of collective security

A

Veto power of the 5 Permanent Members

53
Q

The UN Security Council system is of selective rather than collective security

A

An argument posited by Adam Roberts and Dominik Zaum

54
Q

What is the UN Security Council system of collective security?

A

‘An attack on one is an attack on all’

55
Q

How does the distinction between war and peace factor into the use of force in IL?

A
  • human rights law exists in both war and peace time

David Kennedy

  • military personnel are involved in non-war-like activities
  • war isn’t just an event, it’s a symbol of an attitude, it’s a state of being
  • humanitarian reconstruction; surveillance; urban policing; intelligence gathering: all activities that seem to blur the line between war and peace because they happen in both contexts
56
Q

Is the right to self-defence narrow? Should it be?

A

-

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