Week 9 Use of Force Lecture 2024 Fall PDF

Public International Law Lecture : Use of Force Anna Schmitt Nagelbach  3 eras Era 1 : before the 20th Century : war as legal, acceptable, common (a few exceptions) Era 2 : 20th century : war prohibited, use of force prohibited, thr...

Public International Law Lecture : Use of Force Anna Schmitt Nagelbach  3 eras Era 1 : before the 20th Century : war as legal, acceptable, common (a few exceptions) Era 2 : 20th century : war prohibited, use of force prohibited, threat of use of force prohibited Era 3 : post-2003 : Responsibility to Protect (R2P) – war/peace fluid; flipped concept of sovereignty Lecture 1 Anna Schmitt Nagelbach Historical Developments 13th century Thomas Aquinas “Just War Theory” : exploring morality of war  Who can wage war (rightful sovereign)  Why – for a just cause (responding to a wrong done)  Aims – right intention (for the good) Required that war be waged for a just purpose and with a right intention; intended to limit collective violence 1907 Hague Peace Conference  2 limitations on absolute freedom of states to wage war Lecture 1. 1 to make a formal declaration when opening hostilities obligation 2. prohibition to use armed force to recover debt Anna Schmitt Nagelbach 1928 Kellog-Briand Pact (Pact of Paris)  renounced war as instrument of national policy : radical step towards outlawing war  short-lived  Major Turning Point 1945 UN Charter : general denunciation of war Preamble : “…determined to save succeeding generations from the scourge of war…” use of force, threat of UoF prohibited under almost all circumstances Art. 2 (4) “All Members Lecture 1 shall refrain in their international relations from the threat or use of force against the territorial integrity or political Anna Schmitt Nagelbach independence of any state…” Exceptions to prohibition Art. 2 (4) “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…” Art. 51 self-defense Arts. 39 – 50 collective Lecture 1security Anna Schmitt Nagelbach  Self-defense If sovereignty is targeted in an armed attack, a state or group of states can legally take military action Individual self-defence : - single state who is victim of armed attack - must be necessary and proportional - can continue until threat is neutralized Collective self-defense : - group of states - victim state must request help Lecture - must notify Security 1 consult Council and - must be necessary and proportional Anna Schmitt Nagelbach - Security Council may be involved in determining duration of response  Caroline (1837) Canadian rebel groups wanted Correspondence – letters independence from British rule ; (no legal case) the US supported the rebels US Secretary of State wrote that The Caroline, a US ship, used by anticipatory self-defense Canadian insurgents, was acceptable when there is a anchored on the US side of Niagra river “necessity of self-defense {…} instant, overwhelming, leaving British troops crossed to the US no choice of means, and no border and destroyed the US complained to the British moment of deliberation” Caroline Lecture 1 government. Anna Schmitt Nagelbach British claimed it was an act of ‘necessary self defence’ Necessary and Proportional Oil Platforms case (ICJ 2003) “targets of opportunity”  unnecessary to attack as the platforms were not in military use 1st a Use of Force must be necessary Then proportionality must be established Lecture 1 Anna Schmitt Nagelbach Nicaragua case (1986) Nicaragua supported leftist guerilla movement in El Salvador, which fought against the El Salvador government Military activities by US against Nicaragua 1981-1984 US claimed right of collective self- Lecture 1 defense (Art. 51 UNC) “providing, upon Anna Schmitt Nagelbach request, proportionate and appropriate assistance…” , because Nicaragua endangered its neighbor El Salvador. Nicaragua case (1986) 1. Nicaragua’s government supported Marxist guerilla group in El Salvador - This included uses of force, but NOT an armed attack 2. US supported Contras, who fought the Sandanista government, claiming collective self-defense - Constituted use of force Lecture 1 - to legally use force in self- Anna Schmitt Nagelbach defense, it must be in response to an armed attack  illegal because of 1. Threshold higher for ‘armed attack’ than for ‘use of force’  Nicaragua case 1) Did the US breach its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua? 2) Did the US breach its CIL obligation – not to use force against another State – when it directly attacked Nicaragua in ‘83 – ‘84 and when its activities resulted in the use of force? 3) If so, can the military and paramilitary activities that the US undertook in and against Nicaragua be justified as collective self-defense [to help El Salvador, without its request]? 4) Did the US breach its CIL obligation – not to violate the sovereignty of another State – when it directed or Lecture 1 authorized its aircrafts to fly over Nicaraguan territory? Anna Schmitt Nagelbach 5) Did the US breach its CIL obligations – not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce – when it laid mines in the internal waters and the territorial sea of Nicaragua?  ICJ judgment 1 & 2. The court held that the US breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted in the threat or use of force 3. The court held that the US could not justify its military and paramilitary activities on the basis of collective self-defense. 4. The court held that the US breached its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua. Lecture 1 5. The US breached its customary international law obligation – not to violate the sovereignty of Anna– Schmitt another State Nagelbach when it directed / authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.  Armed Attack There is no universally agreed definition of ‘armed attack’, but invasions and bombings constitute ‘armed attacks’. Nicaragua case helps to define it in the following ways: The ICJ found that ‘armed attack’ requires significantly grave use of force ICJ found that ‘armed attack’ must reach a threshold of gravity. Nicaragua providing arms and logistical support to rebel groups was not considered by the Court to be an ‘armed attack’ under Article 51 UN Charter (1) action by regular armed forces across an international border; and (2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein” Lecture Mere frontier incidents 1 are not considered as an armed attack – but are uses of force – unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces. Anna Schmitt Nagelbach Assistance to rebels in the form of provision of weapons or logistical support does not constitute an armed attack – it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States. Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that amounts to an armed attack.  Exception 2 Collective Security Definition : Cooperation of multiple States to maintain or restore international peace and security Chapter VII UNC : UNSC responsible for maintaining international peace and security. If UNSC determines there is a: threat to peace, breach of peace, or Lecture act of aggression, it can1take measures, including UoF, to restore or maintain international peace and Anna Schmitt security Nagelbach UoF under collective security requires UNSC authorization - last resort after all other peaceful means fail  Exception 2 Collective Security “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace security” - SC must find “threat to peace, breach of the peace, or act of aggression” - may call for provisional measures (Art. 40) - may impose sanctions (Art. 41) - may useLecture force (Art.142) Anna Schmitt Nagelbach  Role of UNSC Chapter VI – Pacific Settlement of Disputes (Arts. 33 – 38) - SC can call upon states to engage in pacific settlement - while SC is considering, GA cannot act (art 12) - the affected state cannot vote (Art. 27(3)) Chapter VII – Action with Respect to Threats to the Peace, Breaches of the Peace and ActsLecture of Aggression 1 (Arts. 39 – 51) - collective Anna Schmittsecurity (Arts. 39 – 50) Nagelbach - self-defense (Art. 51)  Aggression Adopted by General Assembly Res. 3314 (XXIX)(1974) Intended as interpretation of UN Charter art. 39, but may also apply to art. 51 (on self- defence): Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. (don’t confuse withLecture ‘crime of1aggression’ in ICL) Art 39 UNAnna Schmitt Charter: Nagelbach the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.  3 rd Era : R2P Post 2003 : States often do not follow the rules outlined in the UN Charter (2003 invasion of Iraq) Response to a perceived failure of the UN  Responsibility to Protect : A framework to protect populations from mass atrocities Major shift in understanding of sovereignty : from right to non-interference to obligation to protect populations Each State is obliged to protect populations of people from grave crimes (CAH, ethnic cleansing, war crimes, genocide) Lecture 1 - wartime / peacetime fluid (war not “declared”) Anna Schmitt Nagelbach - UN focuses on state-to-state interactions , civil war largely absent  3 rd Era : R2P No separate legal instrument Considered part of CIL Depends on the political will of States, international community A norm; set of principles endorsed in various places - 2005 UN World Summit Outcome Document - Paras. 138 and 139 : The 3 Pillars of R2P - Responsibility to protect its population Lecture and - International Assistance 1 Capacity-Building (International Community must assist states in fulfilling their R2P) - Timely and Decisive Response Anna Schmitt Nagelbach - International Community, through UNSC, can take collective action, including force as a last resort  3 rd Era Third ‘era’ of war and peace more fluid In the event of an armed attack against a State by non-State actors, Art. 51 of the Charter supplemented by customary international law applies as a matter of principle. So, using force in self-defence against a terrorist group acting from abroad could be possible. The terrorist group can be the target of self-defence military operations. Lecture 1 Anna Schmitt Nagelbach  Armed Groups Can acts of armed groups be attributed to another state? Yes, if there is effective control In case of effective control, the ‘victim’ state may invoke Art. 51 UNC What is effective control? Training, military support?  Tadic case (ICTY) – rather than effective control, one should apply the test of overall control - broader Context of command responsibility – how to find someone guilty when they were not personally on the ground where the crimes took place States canLecture 1 have responsibility even if groups are not acting on direct order Anna Schmitt Nagelbach