International Law: Armed Conflict Fall 2024/2025 PDF

INTERNATIONAL LAW: ARMED CONFLICT FALL 2024/2025 ARMED CONFLICT IN INTERNATIONAL LAW War has always been one of the most debated—and politicized—topics of international relations and public international law. The international rules and principles governing force constitute a vital component o...

INTERNATIONAL LAW: ARMED CONFLICT FALL 2024/2025 ARMED CONFLICT IN INTERNATIONAL LAW War has always been one of the most debated—and politicized—topics of international relations and public international law. The international rules and principles governing force constitute a vital component of the international law of coexistence. International law distinguishes between those rules: 1. That regulate when and for what purpose a state may use force against another state termed jus ad bellum. 2. Those that regulate how military hostilities must be conducted jus in bello. UN CHARTER The 1945 UN Charter was created by the UN with the primary purpose of upholding international peace and avoiding yet another major conflict. The Charter entered into force on 24 October 1945. Broadly speaking, the Charter seeks to deter the use of force as means of dispute settlement. At the same time, it establishes mechanisms in place for the lawful exercise of force. THE PROHIBITION ON THE USE OF FORCE The starting point is the prohibition on the use of force contained in article 2(4) of the UN Charter that stipulates that all members of the UN: ‘Shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. The concept of force has been debated ever since the adoption of the Charter in 1945, but the prevailing view is that it is limited to armed measures. So while various forms of non-armed means of coercion, such as economic and political measures, may infringe a principle of non-intervention, they will not constitute ‘force’. It is important to note that the use of force on the basis of consent (invitation) from a host state is not prescribed by article 2(4). THE SECURITY COUNCIL AND ITS RAISON D’ÊTRE The UN Charter gives the Security Council primary responsibility for the maintenance of international peace and security. Only 15 states have a seat on the Council and the five most powerful states in the world, China, France, the Soviet Union (now Russia), the UK and the United States are permanent members with veto powers. The Charter gives the Security Council wide-ranging powers, inclusive of both coercive and non-coercive, as well as binding and non-binding measures. Article 25 stipulates that member states agree to carry out the decisions of the Council and under Article 103 obligations undertaken through the Charter—including those stemming from Security Council resolutions—prevail over other international obligations. THE SECURITY COUNCIL AND ITS RAISON D’ÊTRE Determinations under Article 39: ◦ Article 39 of the Charter specifies that the Security Council shall initially determine the existence of ‘any threat to the peace, breach of the peace, or act of aggression’. ◦ The Council enjoys considerable discretion over determining what is considered a ‘threat to the peace’. Provisional measures under Article 40: ◦ Article 40 authorizes the Security Council to call on the parties of a dispute to comply with such provisional measures it may deem necessary to ‘prevent an aggravation of the situation’. ◦ The Council may call for a ceasefire and/or for the withdrawal of troops from foreign territory. THE SECURITY COUNCIL AND ITS RAISON D’ÊTRE Non-forcible measures under Article 41: Under article 41, the Security Council may take ‘measures not involving the use of force and it may make binding calls upon the members of the United Nations to ‘apply such measures’. Such non-coercive measures may include ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communications, and the severance of diplomatic relations’. The Council often responds to an on-going crisis by imposing arms embargoes. The most comprehensive sanctions regime was imposed on Iraq after its invasion of Kuwait in August 1990. THE SECURITY COUNCIL AND ITS RAISON D’ÊTRE Enforcement under Article 42: ◦ When non-coercive measures are insufficient to uphold or restore international peace and security, Article 42 gives the Security Council the authority to go even further and mandate ‘such action by air, sea, or land forces as may be necessary’. ◦ The post-Cold War period saw an unprecedented level of activity in the Security Council with regard to enforcement action. ◦ Since the end of the First Gulf War, the Council has authorized the use of force in, among other places, Yugoslavia, Somalia, Haiti, East Timor, the Ivory Coast and Libya. RIGHT TO SELF-DEFENCE The use of force in self-defence constitutes an exception to the prohibition on the use of force in article 2(4). Under article 51 of the Charter: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’ ‘Measures taken by Members in the exercise of this right of self- defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’ RESTRICTIONS ON RIGHT TO SELF- DEFENCE While the right to self-defence is permitted for in international law, there are a few conditions that need to be met before such an act can be resorted to or deemed legally justified. These consist of the following: 1. The notion of an ‘armed attack’: ◦ The right to self-defence is triggered by an ‘armed attack’, and it must be of a certain intensity to trigger a right to self-defence. ◦ Thus, only acts producing or likely to produce very serious consequences, such as territorial invasions, human fatalities or massive destruction of property, will do. RESTRICTIONS ON RIGHT TO SELF- DEFENCE 2. Necessity: ◦ To be lawful, self-defence must be necessary. ◦ The requirement of necessity means that a state must ascertain if other, more peaceful, means of redress are available before resorting to the use of force in self-defence. 3. Proportionality: ◦ The principle of proportionality requires the victim state to strike a fair balance between the armed attack and the measures taken to stop it.  AMBIGUITY ON USE OF FORCE IN SELF-DEFENCE In certain respects, international law contains a large degree of ambiguity about the resort to self- defence in the following circumstances: 1. Attack by private actor(s): ◦ It has been much debated whether attacks by private actors can trigger a right to self-defence. ◦ Traditionally, the prevailing interpretation of the right to self-defence seems to have been that the territorial state itself needed to have committed an armed attack before it could be the target of legitimate self-defence. ◦ But the UN Security Council responded to the 9/11 attacks (conducted by non-state actors) by ‘recognizing’ the US right to self-defence and this recognition was not conditioned on establishing state attribution. ◦ The 9/11 attacks seemingly paved the way for an unable or unwilling doctrine whereby a state may be entitled to resort to measures of self-defence against a private actor, such as a terrorist organization, located in another state if the host state does not have the ability or willingness to stop the private actor’s activities. AMBIGUITY ON USE OF FORCE IN SELF-DEFENCE 2. Anticipatory self-defence: ◦ As mentioned, according to Article 51, the right to self-defence is triggered when an armed attack happens. ◦ Hence, while a state that fears a potential attack from another state may make its own military preparations in anticipation of the attack and bring the matter to the attention of the Security Council, it may not resort to any measures of self-defence until the attack actually takes place. ◦ Despite the clear wording of the article, there appears to be overall agreement that a state may be entitled to resort to anticipatory self-defence against an expected assault but only when the threat is imminent. LAW OF ARMED CONFLICT International law distinguishes between those rules that regulate when and for what purpose a state may use force against another state—termed jus ad bellum—and those that regulate how military hostilities must be conducted—jus in bello. Jus in bello is also referred to as the ‘law of armed conflict’ or ‘international humanitarian law’. The law of armed conflict is an inherently pragmatic discipline that accepts the unfortunate reality that war is a recurring feature of human existence. Rather than striving for the complete outlawing of war, such law merely seeks to offer sensible and balanced solutions taking account of both military necessity and humanitarian sentiments. LAW OF ARMED CONFLICT Historically, the treaty-based regulation of the law of armed conflict has been divided into ‘Geneva law’ and ‘Hague law’: Geneva law: ◦ This refers to the many conventions adopted in Geneva, Switzerland, that generally seek to protect vulnerable groups and victims of armed conflict. ◦ The Conventions cover, respectively the: 1. Condition of the Wounded and Sick in Armed Forces in the Field 2. Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 3. Treatment of Prisoners of War 4. Protection of Civilian Persons in Time of War LAW OF ARMED CONFLICT In 1977, a number of significant Additional Protocols to the four Geneva Conventions were adopted. The most important of these were the: 1. Additional Protocol Relating to the Protection of Victims of International Armed Conflicts (API) 2. Additional Protocol Relating to the Protection of Victims of Non-International Armed Conflicts (APII) 3. The Additional Protocols contain a number of provisions that were so controversial that a number of important states, including the United States, Israel, Turkey, Iran, India and Pakistan, decided not to ratify them. Hague law ◦ ‘Hague law’, on the other hand, primarily regulates the methods and means of war and consists of a series of conventions adopted at the Hague Peace Conference in 1899 and 1907. DEBATE QUESTION “The concept of human rights should have no place in international law.” GROUP H GROUP D FOR AGAINST 1. Faris Abdullah Kh. Alhammad 1. Alfahad Mansour Hussain Abdalla 2. Meera Butti Ahmed Binkhadim Almansoori Alhammadi 3. Amna Nabeel Hassan Ibrahim Habash 2. Rashid Obaid Rashid Mohamed Alnaqbi 4. Shatha Saud Saeed Hashil Alkharoossi 3. Faisal Mansour Hussain Abdalla Alhammadi 5. Shams Alaulddin Khammas Al-taei 4. Abdulnaser Hamdan Abdulla Yaqoob Alzaabi 5. Rashed Salem Rashed Salem Alshehhi