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NON-TRADITIONAL USE OF FORCE LAW QUESTIONS

NON-TRADITIONAL USE OF FORCE LAW QUESTIONS. Prof David K. Linnan USC LAW # 783 Unit 11. NON-TRADITIONAL?. “NON-TRADITIONAL” MEANING DO NOT FIT CLEANLY INTO PICTURE OF INT’L WAR BETWEEN TWO STATES UNDER UN CHARTER SYSTEM LEGAL & STRUCTURAL ORGANIZATION FOR USE OF FORCE LAW

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NON-TRADITIONAL USE OF FORCE LAW QUESTIONS

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  1. NON-TRADITIONAL USE OF FORCE LAW QUESTIONS Prof David K. Linnan USC LAW # 783 Unit 11

  2. NON-TRADITIONAL? “NON-TRADITIONAL” MEANING DO NOT FIT CLEANLY INTO PICTURE OF INT’L WAR BETWEEN TWO STATES UNDER UN CHARTER SYSTEM LEGAL & STRUCTURAL ORGANIZATION FOR USE OF FORCE LAW 1. Internal Conflict (Civil War) a. Older ideological b. Newer ethnic 2. Intervention a. Old civil war rules govt vs insurgents b. Newer counterintervention rationale but where under UN Charter, art 2(4)? 3. Peacekeeping-Peacemaking a. Older version truce monitors present by consent b. Newer version non-consensual on-going conflicts, also failed states 4. Humanitarian Intervention a. Widespread grave human rights violations (e.g., genocide so often ethnic) b. Brutal dictator, meaning claim intervening for what purpose?

  3. TRAD SOURCES I “TRADITIONAL” USE OF FORCE SOURCES OF LAW UN Charter 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, or in any other manner inconsistent with the Purposes of the United Nations.” Note ambiguity of four emphases: 1. use of force 2. territorial integrity (sometimes consent arguments) 3. political independence (used often re counterintervention or “consent”) 4. UN purposes (used often re humanitarian intervention)

  4. TRAD SOURCES II “TRADITIONAL” USE OF FORCE SOURCES OF LAW (CONT’D) UN Charter Chapter VII re Security Council art 39 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 4 and 42, to maintain or restore international peace and security. Note that the jurisdiction contemplated is threat to int’l peace & security, but Security Council can determine that internal conflicts/civil wars also threaten international peace & now even find jurisdiction to create war crimes tribunals (as in former Yugoslavia, e.g., Kosovo & Bosnia, but what of UN Charter art 2(7) exclusion of domestic matters?)

  5. TRAD SOURCES III “TRADITIONAL” USE OF FORCE SOURCES OF LAW (CONT’D) UN Charter Chapter VII re Security Council art 51 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. Note that if you follow the traditional self-defense view as US with Caroline, some older precedents re rescuing nationals (modern version Entebbe, Grenada med students)

  6. CIVIL WAR I INTERNAL CONFLICT/CIVIL WAR 1. Cold War problem of sponsored insurgencies (political, Socialist countries vs West) a. Arguments about what is really a civil vs int’l war with Vietnam as example b. Intervention and counterintervention as with Nicaragua & El Salvador in 1980s 2. Post-Cold War world problem of ethnic insurgencies & self-determination element a. Former Yugoslavia as example b. But remember unit 6 & history of self- determination reaching back to nationalist & Wilsonian solution to former ethnic empires (Austro-Hungary in Eastern Europe & Ottoman in Middle East), is this really a new problem?

  7. CIVIL WAR II INTERNAL CONFLICT/CIVIL WAR (CONT’D) 1. Does it make a difference if self-determination plays a prominent role in newer civil conflicts? [Off the record] 2. What are the technically applicable law of armed conflict rules, jus in bello same as for int’l armed conflict? a. Int’l humanitarian law sees difference, but claim that on whole customary law is applicable to international & civil conflicts b. Theoretical prob in mixing human rights law & distinctive legal tradition of armed conflict law (but often not a practical problem since conduct pursued really egregious, like summary execution of civilians, etc.)

  8. INTERVENTION TRADITIONAL CIVIL WAR & INTERVENTION RULES 1. Traditional approach with favoritism towards govt, issue re not assisting insurgents until established because of intervention probs 2. Idea of Spanish Civil War developments though is that traditional non-invention rules never worked with ideologically-based civil wars (instead, issue re counterinterventions in modern setting) 3. Some modern arguments look to political independence language in UN Charter art 2(4) with the idea that external influence must be countered, whether on govt or insurgent side. But who judges?

  9. PEACEKEEPING WHAT IS POTENTIAL SOURCE OF LEGAL AUTHORITY FOR, AND WHAT ARE: • Peacekeeping? a. older UN “blue helmet” tradition involving chiefly consent and enforcement of truces when combat on ground already ceased (Arab-Israeli conflicts, Cyprus, Congo, etc.) b. Post-Cold War problem is that now peacekeeping post- former Yugoslavia has a developing state bias with developing state hotspots, often NATO-based i. Europe gets North Americans/Europeans with modern military (e.g., NATO in Kosovo) ii. Everybody else (Africa, Asia & Middle East) largely gets developing country soldiers (Indians, Pakistanis, Africans, etc. with lesser training & equipment; poor man’s justice arguments)

  10. PEACEMAKING WHAT IS POTENTIAL SOURCE OF LEGAL AUTHORITY FOR, AND WHAT ARE: 2. Peacemaking? a. Idea of less consensual, may get Security Council charge as with Kosovo and may as a result land in on-going conflict i. Likely here is where you see art 39 application in domestic conflict, likely ethnic or religious in current setting ii. More ambitious a decade ago, arguably now viewpoint has changed but still religious element claimed b. Practical side of landing in on-going conflict is that job may be different as in disarming large numbers of combatants (so what if they resist giving up guns c. Practical problem in that this is often now in a “ failed state” environment, as with Somalia & idea that may be very little local authority

  11. QUASI-INTERVENTION? HOW TO INTERPRET THE DIFFERENCE BETWEEN AN INTERNAL AND EXTERNAL CONFLICT & INTERNAL MINUS GOVT: 1. UN Security Council Chapters VI & VII? 2. Ordinary law of armed conflict (jus in bello)? 3. Intervention in civil war (presumbly to restore order, but failed state problem & potential lack of government)? • Re IR views, what can be done about failed state issues? a. Some view as anti-terrorism as “havens” problem, but law does not recognize (but self-defense link in stretching law, preemptive self-defense issues & noin- state actors problem) b. Was this the Afghanistan or Iraq problem, and is this more easily understood than “humanitarian intervention” claims?

  12. SEC COUNCIL SCOPE WHAT ARE THE JURISDICTIONAL LIMITS OF UN CHARTER ART. 39: 1. Art 39 “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression….” • How do different state groups feel about this & what is connection to arguments about Security Council composition? • How have views changed since the immediate post-Cold War ferment?

  13. SO WHAT? UN CHARTER ART 39 HIDDEN ISSUES 1. What is at stake depending upon whether jurisdictional limits in art 39 are narrowly or broadly interpreted? 2. Does it matter that much of the latest peacekeeping/making involves internal conflicts? 3. Who else should be in charge? Longer term?

  14. HUMAN INTERVENTION HUMANITARIAN INTERVENTION’S BASIS • Traditional claim pushed by US academics as consistent with “UN purposes” under UN Charter art 2(4) [Opposing view] • Idea largely academic until embraced as US govt policy first in Clinton Admin (Kosovo), current Bush Admin (leftover claim in Iraq past weak self-defense claims) [Off the record] [Off the record] [Opposing view] • Humanitarian intervention is non-consensual, but resembles peacemaking so is it really humanitarian or merely intervention? [Off the record] 4. What is the role of NGOs, positive or negative in humanitarian interventions and why? Enthusiastic now or before? [Off the record] [Off the record]

  15. FACT PATTERNS I MODERN (RECENT) FACT PATTERNS 1. Failed states (Somalia, Chapter VII) 2. States breaking up (Former Yugoslavia, esp. Bosnia & Kosovo, ?) 3. Humanitarian intervention (post-1991, Kurds & Shiites in North & South Iraq, Chapter VII) • Afghanistan & Iraq, Afghanistan more or less UN sanctioned but 2003 Iraq military action claimed self-defense and unilateral DOES THE USE OF FORCE LAW OR UN COLLECTIVE SECURITY SYSTEM REALLY FIT THESE, BUT WHO IS WILLING TO CHANGE & WHY OR WHY NOT?

  16. FACT PATTERNS II MODERN PATTERNS (CONT’D) 1. Issue of UN collective security apparatus (Security Council) drawing on willing (now increasingly third world countries only) versus collective security military alliances (NATO) versus unilateral commitment of troops (French used to do in Africa, US now in Iraq) as organizational • Putting aside legal issues re use of force, is current Iraq conflict on the facts really more of a peacemaking/civil war anti-insurgency operation in the making and how would you then think about it in legal terms? Is this what pushes towards so-called preemptive war doctrine? • Military term “Indian wars” vs large scale tank battles of Cold War planning, can it be fit within UN Charter legal/organizational scheme and how? If it were fit within UN Charter legal/organizational scheme do you think those states opposing unilatreral action would drop all objections?

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