use of force / non. intervention

Question 1

Prohibition to use force – history

Answer 1

• ius ad bellum ( when? right to war) ius in bello
  (how? right in war)
• 19th and early 20th century:
  – ius ad bellum: no limitation
  – war as part of the external sovereignty of States
  – norms on ius in bello („humanization“ of war)
• League of Nations (1919)
  – relative prohibition of waging war
  – three month - „cooling off period“
• Briand-Kellogg-Pact: war is no means of policy (1928)
• Charter of the UN:
  – comprehensive prohibition of the use of force
  – 2 exceptions
• Self-defence
• Collective security

Question 2

Article 2 para 4 UN Charter

Answer 2

• prohibition of factual/actual force, not just war
• prohibition of the threat to use force, not just the use of force
• force = military/armed force, economic force not included
  – aggression
  – invasion, aerial bombardment
  – military occupation
  – indirect use of force“: sending armed bands to carry out military
  force abroad
• exceptions from the prohibition to use force
  – Self-defence (Article 51 UN Charter)
  – (military) measures of collective security by the UN Security
  Council – chapter VII UN Charter

Question 3

Conditions for self-defence

Answer 3

• armed attack
• against a member of the UN (not just individual persons)
• occurrence/continuing attack
  – anticipatory/pre-emptive self-defence
  – limited to cases of imminent threat of attack
• military self-defence must be necessary
  – Can the attack be averted without military means?
  – Self-defence does not have a punitive function (retaliation)!
• proportionality
  – Self-defence must commensurate with the prior armed attack
  – Factors to be weighed in: means, methods, weapons, scale … of
  attack
  – otherwise unlawful use of force
• individual (only by State victim of the
  armed attack)
  VS
  collective (also by other States upon the victim State’s request
• either ad hoc
• or beforehand (eg alliance like NATO))

Question 4

Self-defence against terrorist attacks?

Answer 4

• attack by non-State actor
• no limitation to specific source of attack in Art 51 UN Charter
• ICJ, Wall opinion, 2004:
  ‘Article 51 of the Charter thus recognizes the existence of an inherent
  right of self-defence in the case of armed attack by one State against
  another State. However, Israel does not claim that the attacks against it
  are imputable to a foreign State.’

Question 5

System of collective security

Answer 5

• chapter VII of the UN Charter: action with respect to threats to the peace,
  breaches of the peace, and acts of aggression
• competence of the Security Council, Art 24 UN Charter:
  ‘In order to ensure prompt and effective action by the United Nations, its
  Members confer on the Security Council primary responsibility for the
  maintenance of international peace and security, and agree that in carrying out its
  duties under this responsibility the Security Council acts on their behalf.’
  subsidiary/residual competence of the GA? Uniting for Peace-Resolution 1950
• SC = central organ of collective security
  – primary responsibility for international peace
  – power to take enforcement action (‘measures’, ‘sanctions’)
• Article 39
  – threats to the peace
  – breach of the peace
  – acts of aggression
• decision of the SR pursuant Art 25 Charter: ‘The Members of the United
  Nations agree to accept and carry out the decisions of the Security Council
  in accordance with the present Charter.’
  – (partly) binding
  – question of interpretation, difference to Art 31 VCLT
  – literal interpretation + historic (+ authentic) interpretation!

Question 6

Measures of collective security I

Answer 6

• Article 40: provisional measures to prevent aggravation of the situation
• Article 41: possibility of binding non-military measures („sanctions“)
  – economic sanctions:
• export and import embargos
• specific industries (arms, oil)
• restrictions on communication/transport lines
  – targeted sanctions against specific persons
• asset freezes
• travel bans
• prohibition to exploit natural resources and trade therewith („blood diamonds“)
  – other measures
• establishment of ad hoc criminal tribunals
• obligation to prosecute under domestic criminal law, extradition (Libya/Lockerbie)
• „binding“ settlement of disputes (eg Dayton peace agreement 1995)
• general obligation to fight terrorism (zB suppression of financing)
• boundary delimitations (eg Kuwait – Iraq 1991)
• prohibition of weapons of mass destruction (Iraq, Iran)
• determination of financial responsibilities; UN Compensation Commission (Iraq - Kuwait)
• international territorial administrations (East Timor, Kosovo)
   quasi-legislative powers of the SC

Question 7

Measures of collective security II

Answer 7

Article 42:
Should the Security Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may take such
action by air, sea, or land forces as may be necessary to maintain or restore
international peace and security. Such action may include … operations by
air, sea, or land forces of Members of the United Nations.
 military enforcement measures by the SC itself
Article 43:
All Members of the United Nations, in order to contribute to the
maintenance of international peace and security, undertake to make
available to the Security Council, on its call and in accordance with a special
agreement or agreements, armed forces, assistance, and facilities, including
rights of passage, necessary for the purpose of maintaining international
peace and security.
 never applied in practice  ‘second best option’ =
* authorizations to use force under Art 42:
– ‘any necessary means’ – repel aggression
– Iraq/Kuwait 1991
– Libya 2011 – protection of civilians
* peace-keeping forces

Question 8

Peace-keeping measures I

Answer 8

• legal basis:
  – implied powers (Certain Expenses Advisory Opinion)
  – chapter VII – a maiore ad minus
  – customary law/practice of the Organization
• conditions/requirements
  – Resolution of the SC – recommendation
  – military command with SC (Military Staff Committee)
  – partly voluntary contributions (no reimbursement of
  costs?)
  – consent of parties to conflict (where parties are
  states)
  – [no participation of P5]

Question 9

Peace-keeping measures II

Answer 9

• mandate – development over time
  – stabilization of a provisional (cease-fire) agreement
• separation of conflicting forces
• monitoring of implementation/observation of this agreement
  – impartiality
  – purely defensive use of armed force (self-protection)
  – extension of mandate
• police tasks; securing areas; protecting civilians
• humanitarian assistance
• civil tasks: administration, justice system
• protecting election process
  – no need for consent of conflicting parties (even against their
  will)
  – active use of armed force
• protecting civilian population
• protecting humanitarian assistance
• peace enforcement?

Question 10

Responsibility to protect – R2P

Answer 10

• GA Resolution 60/1 of 24 October 2005, World Summit Outcome:
  138. Each individual State has the responsibility to protect its populations
  from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their
  incitement, through appropriate and necessary means. We accept that
  responsibility and will act in accordance with it. The international
  community should, as appropriate, encourage and help States to exercise
  this responsibility and support the United Nations in establishing an early
  warning capability.
  139. The international community, through the United Nations, also has the
  responsibility to use appropriate diplomatic, humanitarian and other
  peaceful means, in accordance with Chapters VI and VIII of the Charter, to
  help to protect populations from genocide, war crimes, ethnic cleansing
  and crimes against humanity. In this context, we are prepared to take
  collective action, in a timely and decisive manner, through the Security
  Council, in accordance with the Charter, including Chapter VII, on a case-by- case basis and in cooperation with relevant regional organizations as
  appropriate, should peaceful means be inadequate and national authorities
  are manifestly failing to protect their populations from genocide, war
  crimes, ethnic cleansing and crimes against humanity.

Question 11

Prohibition of intervention

Answer 11

Friendly Relations Declaration, GA Res 2625, 24 October 1970:
‘No State or group of States has the right to intervene, directly or
indirectly, for any reason whatever, in the internal or external affairs
of any other State.
…
No State may use or encourage the use of economic, political or any
other type of measures to coerce another State in order to obtain
from it the subordination of the exercise of its sovereign rights and to
secure from it advantages of any kind. Also, no State shall organize,
assist, foment, finance, incite or tolerate subversive, terrorist or
armed activities directed towards the violent overthrow of the regime
of another State, or interfere in civil strife in another State.
…
Every State has an inalienable right to choose its political, economic,
social and cultural systems, without interference in any form by
another State.

Question 12

Prohibition of intervention – Nicaragua case I

Answer 12

Nicaragua case, ICJ 1986, para 209:
‘the principle [of non-intervention] forbids all States or groups of
States to intervene directly or indirectly in internal or external
affairs of other States. A prohibited intervention must
accordingly be one bearing on matters in which each State is
permitted, by the principle of State sovereignty, to decide freely.
One of these is the choice of a political, economic, social and
cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in
regard to such choices, which must remain free ones. The
element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the
case of an intervention which uses force, either in the direct
form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State.’

‘It would certainly lose its effectiveness as a principle of law if
intervention were to be justified by a mere request for
assistance made by an opposition group in another State –
supposing such a request to have actually been made by an
opposition to the régime in Nicaragua in this instance. Indeed,
it is difficult to see what would remain of the principle of nonintervention in international law if intervention, which is
already allowable at the request of the government of a State,
were also to be allowed at the request of the opposition. This
would permit any State to intervene at any moment in the
internal affairs of another State, whether at the request of the
government or at the request of its opposition. Such a situation
does not in the Court’s view correspond to the present state of
international law

Question 13

Prohibition of intervention – examples

Answer 13

• substance/content:
  – prohibition to intervene in the internal affairs of another state
  – prohibition to exert pressure or influence in order to obtain from another
  state advantages to which it is not obliged under international law
  – below the threshold of armed force
• examples:
  – subversive intervention directed against government
  – support of political opposition in another country (Nicaragua case)
  – influencing the political decision-making process in another country (eg Russia
  interfering with US elections 2016)
  – secondary sanctions (US policy: Iran sanctions, Nord Stream pipeline)
• not covered, eg:
  – denial of development aid for political reasons
  – unilateral termination of economic cooperation
  – Providing purely humanitarian assistance in another country (but: on
  condition of impartiality)