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Government 1740Government 1740International LawInternational Law
Summer 2006Summer 2006
Lecture 9:
The Use of Force
OutlineI. “Just war” doctrineII. “War” in the twentieth century and the evolution of
doctrines of use of forceIII. Regulation of the right to resort to force
A. The League of Nations CovenantB. The Kellogg-Briand Pact (1928)C. The Charter of the United Nations (1945)
1. Outlaws wars of aggression2. Chapter VII: collective security3. Recognizes the right of self-defense4. What about anticipatory self-defense? (Example: the invasion of Iraq)
IV. What influences norms regarding the use of force?
I. Just War DoctrineI. Just War Doctrine
Jus ad Bellum
Just War Doctrine Competent authority
Just cause
Proportional response
Right intention
II. War in the 20II. War in the 20thth CenturyCentury
Warsaw, September 1939.Warsaw, September 1939.
War in the late 20th/21st Century
Reluctance to declare war
International versus civil war
Involvement of non-state entities
Evolution of the Doctrine
Obvious difficulties with JWT for the 20th century
From “Just” to “Permissible”
Toward a Ban on Offensive Wars
III. III. Legal Legal Regulation of Regulation of the Right to the Right to
Resort to ForceResort to Force
•Institutions
•Principles
The League of Nations Covenant
Art. 10: League members to preserve territorial integrity and political independence of all members from external aggression.
Arts. 12-15: Restricted the rights of members to resort to war
Obligated the members to avoid non-war hostilities.
“Muzzled” from the Literary Digest
9/13/19
The Kellogg Briand Pact (1928)(The Paris General Treaty for the Renunciation of War)
Kellogg, with Prittwitz, and Keip.
August 27, 1928
The UN Charter
Article 2(4): “members agree to... refrain from the threat or use of force against the territorial integrity or political independence of any state.”
Article 33-38: obligate members to seek peaceful solutions to disputes.
UN Charter Outlaws Wars of Aggression
Chapter VII, Article 39: empowers the Security Council to respond to acts of aggression.
FIRST SESSION OF THE UN SECURITY COUNCIL (London, 17/1/46).
What is “Aggression”? Use of armed force
by a state First use of force Activities that
constitute aggression Plus what the
Security Council may determine
State responsibilityFIRST SESSION OF THE GENERALASSEMBLY(London, 10/1/46).
The 2003 Use of Force Against Iraq: A Continuation of Collective
Security? A Chapter VII action
stemming from Iraq’s 1990 attack on Kuwait?
Justified by compulsory Security Council Resolutions adopted between 1990-2003?
Some key SC resolutions: – 660 (August 1990)– 678 (November 1990)– 687 (April 1991)– 1441 (November 2002)
Exhaustion of Peaceful Remedies
Negotiate in good faith For how long? How to do this in the case
of terrorism?
The Right to Self-Defense
Article 51 of the UN Charter: recognizes an inherent right of collective self-defense of member states against armed attack.
1991 UN IRAQ-KUWAIT OBSERVER MISSION. Burning oil wells and a destroyed Iraqi tank. Kuwait, 25/3/91.
Anticipatory Self-Defense
Clear and present danger of aggression.
No alternatives
Anticipatory Self-Defense and the Invasion of Iraq
New conditions: the problem of weapons of Mass destruction
Customary international law
Practice Justifies a
reformulated test
Proportionality of Means to Ends The states interest has to be serious enough to justify war as a means.
Must apply force proportionally
World Trade Towers, 2001
Baghdad, 2003
Israel, Lebanonand Hezbollah
Is Israel’s use of force legitimate? Is Israel using its force legitimately? Does it matter whether Hezbollah “started it”? Is Hezbollah bound by international law on the
use of force? Lebanon? What are legitimate military targets? Is it legal to kill civilians? What about the obligation to negotiate a peaceful
settlement?
Prisoner Exchange?Israeli-held Israeli-captives
1979 66 Palestinians 1 Israeli soldier
1983 4,700 Palestinians, Lebanese
6 Israeli soldiers
1984 291 Syrians, 20 security prisoners
6 Israelis, 2 bodies of soldiers
1985 1,150 prisoners 3 Israeli soldiers
1996 45 prisoners, 100 Hezbollah bodies
2 bodies of Israeli soldiers
1997 70 prisoners, Hamas leader 2 Israeli spies
1998 60 prisoners, 40 Hezbollah bodies
1 Israeli soldier body
2006 429 prisoners, bodies of 59 Lebanese
1 Israeli citizen, 3 soldiers’ bodies
Summary Current rules are influenced by just war doctrine, but with
more emphasis on limiting war than ensuring justice. 21st century wars are difficult to regulate through
traditional international law The resort to force is no longer considered an inherent
aspect of state sovereignty Self-defense is the only legitimate reason for going to war
under the UN Charter. This is may be changing with respect to anticipatory self-
defense (in an era of WMD) and humanitarian intervention (a return to a “just cause”?) next week!
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