The Use of Force Including War, p. 385ff

1. The Use of Force Including War, p. 385ff • History. Long history of various doctrines of “The Just War.” Idea that war was permitted provided it was “just.” What was “just” varied over time and depended on such things as religion, race, ethnicity, scarcity of resources, spreading “civilization” or, very often, whatever suited the perceived policy needs of a particular group or state.

2. The Modern Era Coercive Measures Not Amounting to Armed Force. • Retorsions. • Reprisals not involving armed force. • Pre-1945 Attempts on the Use of Armed Force. • Various attempts to limit the use of force between states. • Covenant of the League of Nations, 1919. • General Treaty for the Renunciation of War (Kellogg-Briand Pact), 1928.

3. The Modern Era Coercive Measures Not Amounting to Armed Force. Customary Law of Self- Defence (Read UN Charter art. 2, para. 4, and art. 51, for the modern rule) • The Caroline Incident resulted in correspondence between the American and British Minister indicating agreement on rules of necessity and proportionality. • What happened to give rise to the correspondence between the British and the US Ministers? • What do you understand the rule of necessity to be? What do you understand the rule of proportionality to be? • Were the British using self- defence after an armed attack? Were the British using armed force pre- emptively, anticipating further attacks? • Note: no agreement on whether the British action was permissible or whether it was self- defence after an armed attack or whether it was anticipatory self- defence.

4. Post-1945 Law on Use of Force • Law of Armed Force is Divided in to Two Areas: • 1) JUS AD BELLUM : Laws relating to when it is permissible for one state to use armed force against another state….International Armed Conflict. (Note: There is no international law relating to when it is permissible to use force within a state (Internal Armed Conflict) although there is some law regulating the conduct of such hostilities. • 2) JUS IN BELLO: Laws relating to the conduct of armed forces in conflict regardless of whether the entry into the conflict met the requirements of jus ad bellum. Most of this law relates to international armed conflict but increasingly the law has also come to regulate internal armed conflict (non-international armed conflict) .

5. UN Charter art. 2, para. 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.” (This is a truly radical idea.) • What is “force”? Does this only relate to armed force? • What is a “threat of force”? • Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, Advisory Opinion (discussion of : “threat of force.”). In what circumstances does the Court indicate that the threat of nuclear force would be illegal? • Must force be used for a particular object in order to violate article 2(4)? Read again UN Charter art. 2, papa. 4: are all uses of force between states prohibited? • Can there be so-called “humanitarian” uses of force that do not violate art. 2 para.4?

6. Exceptions to UN Charter Art. 2, para. 4 • Self- Defence: UN Charter Article 51 • What is the “inherent right” of self- defence? Does it incorporate pre-Charter law or not? Did that pre-Charter law include the right to anticipatory self- defence? (How do you read the Caroline correspondence?) Does the language of art. 51 now make it clear that the right to self- defence only comes into existence after an armed attack has occurred? If so, do you perceive any problems?

7. Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) 1986 ICJ 14 (Merits) • www.worldatlas.com/webimage/countrys/namerica/camerica/lgcolor/nicolor.htm • What did Nicaragua accuse the US of doing in Nicaragua? • What was the US’ basic argument to justify its actions? • Why did the US argument fail? • Do all unprovoked actions involving armed force carried out by one state against another constitute an armed attack giving rise to a right of self- defence? If not, what actions constitute an armed attack giving rise to the right of self- defence? • Why were Nicaragua’s activities against El Salvador not sufficient to justify either self- defence by El Salvador or collective self- defence on the part of the US? • If State A supplies the rebels in State B with weapons and other support, does that constitute an armed attack by State A against State B? If not, would it be legal?

8. Nicaragua Case (Merits) continued:What is Collective Self-Defence? What events must occur before State A is permitted to exercise collective self- defence on behalf of State B against State C? • If State A has used force, not amounting to an armed attack, against State B, what is State B permitted to do in retaliation? What is State C permitted to do on behalf of State B? • What actions engaged in by the US were held to constitute a threat or use of force against Nicaragua? • Why did the Court not consider the US actions against Nicaragua necessary or proportional in relation to Nicaragua’s activities against El Salvador?

9. Legality of the Threat or Use of Nuclear Weapons,(Advisory Opinion)1996 ICJ 226 • There is a long list of weapons specifically prohibited by treaty, see: www.icrc.org/ihl • All weapons must also meet the customary law requirements of being able to be used in a way to distinguish between civilian and military targets and weapons must never cause unnecessary suffering even to combatants. All weapons’ use is also subject to the customary law requirements that use of force must be both necessary and proportional. Do you think that NWs could meet these requirements? If so, when?

10. Case Concerning Oil Platforms (Iran v. US) 2003 ICJ 161 • http://en.wikipedia.org/wiki/File:MiddleEast.png • What activities by the US did Iran complain about? • What activities by Iran did the US complain about? • What was the US required to prove before the Court was willing to examine whether the US had engaged in permissible self- defence? • Why did the US fail to convince the Court that its destruction of three Iranian off-shore oil platforms in the Persian Gulf were legitimate acts of self- defence? • What do you understand to be the meaning of “necessity” and “proportionality” in the exercise of self- defence from this case and the Nicaragua Case?

11. Anticipatory Self-Defence and Preemption • What is anticipatory self-defence? How can it ever be justified given the language of UN Charter art. 51: “if an armed attacks occurs against a member of the United Nations….”? • What is the doctrine of preemption? Can you articulate a legal justification for this doctrine? Does the US/Iraq War convince you of the justification for the preemption doctrine? Does such a doctrine preserve international security or threaten it? Would your view of the doctrine of preemption be different if the US had found weapons of mass destruction (WMD) in Iraq capable of striking Europe or US?

12. Reprisals Using Force • Reminder: A reprisal is an illegal act taken as a measure of self-help in response to a prior illegal act. What rules apply if the prior act or the reprisal involves force? The ICJ has stated : “armed reprisals in time of peace…are considered unlawful.” (Nuclear WeaponsCase at para. 46.) Belligerent reprisals are also governed by “the principle of proportionality.” Id. If the prior illegal act amounts to an armed attack, then the right of self- defence is triggered. If the prior act uses force but does not amount to an armed attack, what right of forceful response is permitted? Is there a right of collective forceful countermeasures by third states on behalf of the state suffering a low level illegal use of force against it?

13. The Rule of Non-Intervention • Articulate the rule of non-intervention. • See UN Charter arts. 2(1), 2(4), 51, G.A. Res. 2131 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. • Does this rule actually work in the world of politics? Is it a rule you would support? What does it hope to achieve?

14. Nicaragua v. U.S. 1986 I.C.J. 14 (Merits) (Non-intervention) • What types of evidence persuaded the Court that the rule of non-intervention had become customary law? (Customary law is the consistent practice of states engaged in by them out of a sense of legal obligation and is binding on states unless they have persistently objected to such a rule. States are not permitted to object to rules of customary law that are considered fundamental law, jus cogens). Is the rule of non-intervention juscogens?

15. Nicaragua Case, Non-Intervention continued • What types of activities would constitute a violation of the principle of non-intervention? • Do states have a right to intervene in other states to support internal opposition groups? • If State A unlawfully intervenes in State B’s internal affairs, what countermeasures may State B take against state A? What countermeasures may State C take on behalf of State B? • Why did the Court find that the US had unlawfully intervened in Nicaragua’s internal affairs? • Did the US supply of humanitarian aid to the Contras violate the principle of non-intervention?

16. Civil Wars and the Rule of Non-Intervention • May states come to the aid of a foreign government threatened by rebels? • May states support rebels in a foreign state trying to overthrow a government? What if the rebel group is trying to overthrow a dictatorship and establish democracy and human rights? • Does it make any difference if the foreign government was elected by a democratic system but the rebel group is convinced that the new government will ruin the country economically?

17. Intervention in Particular Circumstances • Do the following uses of force violate art. 2(4)? • Protecting nationals abroad when they are allegedly in peril. • Promoting human rights. • Spreading democracy. • Fighting corruption. • Bombing nuclear reactors. • Using unmanned drones to target “known terrorists”. • If you consider that such uses of force are permitted, what types of states are likely to be able to decide to use force in the above circumstances? Does your answer to that question worry you?

18. The Responsibility to Protect • What is the proposed idea of the responsibility to protect? • What entities have the responsibility to protect? • Who or what is to be protected and in what circumstances? • What problems do you foresee with this concept?

19. The Security Council’s (SC’s) Power to Intervene • Does art. 2(7) limit the powers of the SC to authorize the use of force against a UN member? • What sort of power is the SC given under art. 41? • What sort of power is the SC given under art. 42? • What is the distinction between UN forces and UN peacekeeping forces?

20. Jus In Bello • Jus in bello: The law that governs the conduct of warfare, including the protection of victims of armed conflict both military and civilian, also called international humanitarian law. • In the modern era, regulations for the conduct of armies begin to appear in the middle of the 19th century. In 1899, the Hague Peace Conference adopted The Convention Concerning the Laws and Customs of War on Land, revised in 1907, with detailed Hague Regulations, basically: force may only be used to achieve military advantage; unnecessary suffering for combatants must be avoided; civilians may not be targeted; any collateral damage to civilians must be outweighed by military advantage; various uses of force prohibited. • Wonderfully useful site for all sorts of information and a complete treaty data base is the web site of the International Committee of the Red Cross: www.icrc.org

21. Geneva Conventions and Additional Protocols • In 1949, the four Geneva Conventions were adopted providing for the treatment of army and navy personnel wounded during combat, the treatment of prisoners of war (POWs); the protection of civilians and the obligations of occupying forces. These Conventions apply primarily to international armed conflict, but article 3 to each of the four Conventions (Common Article 3) applies to non international armed conflicts, setting a minimum standard for the protection of noncombatants, the wounded and prisoners. Additional Protocol I, & II, 1977, expand the definition of armed conflicts which are governed by the Conventions and make the protections given to non-combatants more specific.

22. Prosecutor v. DrazenErdemovicInternational Criminal Tribunal for the Former Yugoslavia (ICTY) (1997) • For the Tribunal’s web site: www.icty.org • Who was Erdemovic (E)? • What had happened to give rise to E’s prosecution? • What was E accused of? • What defence did he offer? • Why was his defence rejected as a complete exoneration by a majority of the Appeals Chamber? • In what way was the majority willing to take account of E’s defence? • Why did Judge Cassese and Judge Stephen dissent? What rule would they have preferred? • Do you agree with the majority or the dissent?

23. Prosecutor v. AloysSimbaInternational Criminal Tribunal for Rwanda (ICTR) (2005) • For the Tribunal’s web site: www.ictr.org/ • What had happened in Rwanda that persuaded the UN Security Council to establish the ICTR? • Who was AloysSimba and what were the charges against him? Had he killed anyone? • What did the Tribunal require that the Prosecution prove to satisfy the elements of genocide?

24. Prosecutor v. Aloys Simba continued • On what evidence did the Tribunal rely to prove Simba’s genocidal intent? • What elements must be shown to demonstrate a joint criminal enterprise? • Read art. 3 of the Tribunal’s Statute. What does the Tribunal mean by “ crimes against humanity”? • What does the tribunal mean by “Extermination”? Why was Simba found guilty of extermination?

25. Weapons Control • The jus in bellomakes detailed distinctions between military personnel and civilians. Civilians/non combatants must never be targeted. Weapons must be able to distinguish between military and civilian targets and must not cause unnecessary suffering to combatants. • In the modern era, since the 1868 Declaration of St. Petersburg which prohibited the use of certain explosive projectiles, there has been a ever increasing list of prohibited weapons. The International Committee of the Red Cross (ICRC) web site has the list of these treaties: www.icrc.org/ihl

26. Weapons Control continued • Nuclear weapons (NWs): See the various categories of treaties relating to NW at p. 451ff. As yet we have no overall treaty banning nuclear weapons. The Non-Proliferation Treaty (NPT) does prohibit nuclear weapons for those states that are party to the treaty, with the exception of China, France, Russia, United Kingdom and United States who are allowed to have NWs. States that are not party to the treaty are not prohibited from acquiring nuclear weapons and India, Israel and Pakistan have done so. N. Korea was a party to the NPT but purported to withdraw from the treaty. It is disputed whether this withdrawal was legal. At the moment, NK, which has a fairly rudimentary nuclear weapon system, is not cooperating in dismantling its NWs program but that could change.

27. Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226 (Advisory Opinion) • What was the question put to the Court by the General Assembly? • Should the Court have declined to answer the question as too “political’ or beyond the expertise of the Court?

28. Nuclear Weapons Case continued: • Won’t the use of NWs automatically violate the body of international environmental laws prohibiting the employment of “methods or means of warfare which are intended, or may be expected, to cause wide-spread, long term and severe damage to the natural environment.”? Were these limitations meant to be rules of complete restraint during conflict?

29. Nuclear Weapons Case continued • In what way did the Court consider that NWs are unique among weapons generally? • When is the use of force permitted under international law? If a particular use of force is permissible, won’t the use of NW in such circumstances be legal? • What are the general rules to which all uses of force are subject? Can NWs ever hope to comply with these general rules?

30. Nuclear Weapons Case continued: • Which treaties could be viewed as prohibiting NWs? • Does the failure of states to use NWs for over 60 years indicate a general custom prohibiting their use? (Consistent practice of states thought of as law, i.e. opiniojuris)? • Why is the Court not prepared to treat a long series of G.A. resolutions stating that NWs are illegal as evidence of a binding custom?

31. Nuclear Weapons Case continued: • The Court concludes that the rules of international humanitarian law (IHL) do apply to NWs and that the Martens Clause is useful to fill any gaps in the law that may result from rapidly advancing technology. • Can NWs meet the IHL requirements of the rule of distinction? • Can NWs meet the requirements of the rule not to cause unnecessary suffering to combatants? • Can you think of other specific IHL rules that might be problematic when applied to NWs?

32. Nuclear Weapons Case continued • So what exactly did the Court decide in the NWs Case?

33. Nuclear Weapons Case continued: • Can NWs be regulated by law generally or international humanitarian law specifically? • Can armed force be regulated by law? Is it worth a try? What are the alternatives? • Is international law, particularly as it relates to the use of armed force, really law? • This is where we started….Is international law really law?