Palacky University OlomoucFaculty of Law

Law of Armed Conflict and Use of Force

- Historical development of the law on prohibition of use of force. Ius ad bellum

v. ius in bello. -

03.10.2011Support of the foreign language profile of law tuition at the Faculty of Law in Olomouc CZ.1.07/2.2.00/15.0288

• Use of force as an integral aspect of every society?

• Use of force in „modern“ international law– IL as a set of legal rules governing

relations mainly between States– Law of use of force as one of the

fundamental pillars of the international legal system

The starting point: The Peace of Westphalia

1648

The starting point of modern IL: Assumptions of the Westphalian Legal System

1. Sovereign States as the one and only subject of international law.

2. Sovereignty. There is no legal authority above the state; states are

assumed to have control of activities within their borders.

3. Equality. All states are legally equal: here is no explicit hierarchy

in the system, in contrast to a medieval or imperial system. States

still differ substantially in their size and capabilities

4. Neutrality. States have the right to remain outside the disputes of

other states.

The starting point: Assumptions of the Westphalian Legal System

5. Noninterference and nonintervention. States should

not attempt to intervene in the internal affairs of other

states except through war.

6. States have a monopoly on the legitimate use of

violence.

Bellum Iustum / Just War Theory

• of Roman philosophical (Cicero) and Catholic origin (Thomas Aquinas)

• What might the „Just War Theory“ mean?– Just Cause (causa iusta)– Just Intention (recta intentio)– Proportionality– ...

= war, if conducted properly, is considered a legitimate means of settling international disputes, whereas only states can engage in such violence

The Hague Conference 1899• "the progressive development of the

present armaments" and "the most effective means of insuring to all peoples the benefits of a real and durable peace“.

• The conference – Focused on disarmament,

outlawing three innovations in weapons: • asphyxiating gases• expanding ("dumdum„) bullets, and • projectiles / explosives from balloons

– failed to facilitate real advancement of limiting arms– Permanent Court of Arbitration created – Convention for the Pacific Settlement of International Disputes

• Advancing the concept of resolving differences through mediation by a third party, international commissions, or the international tribunal at the Hague

• BUT arbitration not compulsory and not covering questions involving national honor / integrity.

The Hague Conference 1907

• Armament discussions failed, but• Conventions developed on

– laws of war– naval warfare, – Neutrality– renouncing the right to use force to collect debts

(Drago-Porter Convention)

• create a binding international court for compulsory arbitration to settle international disputes, which was considered necessary to replace the institution of war.

Ius ad bellum v. ius in bello

• Ius ad (contra) bellum– when it is right to resort to armed force

(when is the use of force legal?)

• Ius in bello– what is acceptable in using such force

(which means and methods of warfare are allowed to be used?)

The League of Nations

• Result of the Paris Peace Conference at the end of WW1

• Organs:– Assembly, Council, Secretariat, Permanent Court

of International Justice

• Which were League's primary goals?– collective security (no military obligations

/economic sanctions) – disarmament, and – settling international disputes through negotiation

and arbitration (both not obligatory!)

ARTICLE 11

Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations

ARTICLE 12

The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council.

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Strengths and Weaknesses of the Covenant / Article 12?

+ War = matter of concern to the whole League+ League as a forum, which shall safeguard

the peace of nations- No general prohibition of war, only

procedural limitation- Collective security?

No military obligations /economic sanctions!- Settling international disputes through

negotiation and arbitration? Both not obligatory!

The bitter end of the League

Collective security had "failed ultimately because of the reluctance of

nearly all the nations in Europe to proceed to … military sanctions ...

The real reason, or the main reason, was that … there was no country

except the aggressor country which was ready for war ... [I]f collective

action is to be a reality and not merely a thing to be talked about, it

means not only that every country is to be ready for war; but must be

ready to go to war at once. That is a terrible thing, but it is an essential

part of collective security.“

On 23 June 1936, in the wake of the

collapse of League efforts to restrain

Italy's war of conquest against

Abyssinia (Ethiopian Empire), British

Prime Minister Stanley Baldwin told the

House of Commons:

Briand-Kellogg Pact 1928

• ARTICLE I

The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

• ARTICLE II

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

Briand-Kellogg Pact 1928

What are the Strengths and Weaknesses of the Pact?

+ First comprehensive normative ban of war

+ high degree of acceptance- No procedural rules / sanctions foreseen- Prohibition of „War“ only, i.e. military

actions short of war