Use of Force 2 - Lecture notes 2 PDF

Preview

Summary

Use of Force 2 PIL 26/03/Use of Force 2:Pre-Emptive Self-Defence? Article 51 of UN Charter: Inherent right; in response to an ‘armed attack’  A reminder of the Caroline criteria for anticipatory/pre-emptive self-defence: must be necessary and proportionate to the threat of attack.  These criteria...

Description

Use of Force 2

PIL

26/03/2017

Use of Force 2: Pre-Emptive Self-Defence?    

Article 51 of UN Charter: Inherent right; in response to an ‘armed attack’ A reminder of the Caroline criteria for anticipatory/pre-emptive self-defence: must be necessary and proportionate to the threat of attack. These criteria/conditions are confirmed as CIL in Legality of the Threat or Use of Nuclear Weapons ICJ Rep 1996 So when is attack ‘imminent’, so as to trigger right of anticipatory/pre-emptive self-defence? o Yoram Dinstein (in Dinstein, War, Aggression & Self-Defence, CUP, 2001) believes:  The proportionality and necessity criteria mean an attack must therefore be reasonably believed to be imminent.

Armed Activities in Nicaragua Case (Nicaragua v USA) ICJ Rep (1986): 

Extent of the Right of Self-Defence: o Re: the meaning of ‘armed force’: does not include financing, arming or training armed forces other than own army – US actions for the Contra rebels against Nicaraguan armed forces in this regard held not to constitute violation of international norm against the threat or use of force. o Although these actions were held to be an illegal intervention in another State.

Collective Self-Defence Measures by States: 

Article 51 UN Charter: An ‘… inherent right of individual or collective self-defence…’ Meaning? State, Bilateral, or regional/global action?

Armed Activities in Nicaragua Case, ICJ: 



VIII: The conduct of Nicaragua (paras. 126-171): o The Court has to ascertain, so far as possible, whether the activities of the United States complained of, claimed to have been the exercise of collective self-defence, may be justified by certain facts attributable to Nicaragua.  The United States has contended that Nicaragua was actively supporting armed groups operating in certain of the neighbouring countries, particularly in El Salvador.  The United States has also accused Nicaragua of being responsible for crossborder military attacks on Honduras and Costa Rica. Collective counter-measures in response to conduct not amounting to armed attack (paras. 210 and 211) (paras. 246-249): o The Court then considers the question whether, if one State acts towards another in breach of the principle of non-intervention, a third State may lawfully take action by way of counter-measures which would amount to an intervention in the first State’s internal affairs. o This would be analogous to the right of self-defence in the case of armed attack, but the act giving rise to the reaction would be less grave, not amounting to armed attack.

Use of Force 2 o o

PIL

26/03/2017

In the view of the Court, under international law in force today, States do not have a right of “collective” armed response to acts which do not constitute an “armed attack.” Having found that intervention in the internal affairs of another State does not produce an entitlement to take collective counter-measures involving the use of force, the Court finds that the acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.

What if consent is initially given for intervention by another State in the territory of a State? 

Armed Activities in the Congo (Congo v Uganda) ICJ (2005): o The Court draws attention to the fact that the consent that had been given to Uganda to place its forces in the DRC, and to engage in military operations, was not an open-ended consent. o Even had consent to the Ugandan military presence extended much beyond the end of July 1998, the parameters of that consent, in terms of geographic location and objectives, would have remained thus restricted. o The Court concludes that the various treaties directed to achieving and maintaining a ceasefire, the withdrawal of foreign forces and the stabilisation of relations between the DRC and Uganda, did not constitute consent by the DRC to the presence of Ugandan troops on its territory for the period after July troops on its territory for the period after July 1999, in the sense of validating that presence in law. o The Court finds that Uganda has violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally constituted an interference in the internal affairs of the DRC and in the civil war raging there. o The unlawful military intervention by Uganda was of such magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed. o The Court finds that Uganda’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel group acting on their own account.

Other legal bases for intervention? 

   

No general right of intervention: Corfu Channel case: o UK: Claimed right of intervention on behalf of international community o ICJ: The ‘right of intervention’ claimed was in reality a form of force which had given rise to serious abuses in the past and therefore could not have a place in international law. Protection/rescue of nationals/citizens abroad: Israeli commando raid of Entebbe airport, Uganda; & US intervention in Granada? Protection of fellow ethnic communities? Russians in Crimea/Eastern Ukraine? Civil Wars Outside aid to government authorities (e.g. to repress a revolt) o The US/Panama action 1989

Use of Force 2  

PIL

26/03/2017

Aid to rebels o The Democratic Republic of Congo in 1999. Humanitarian intervention and/or Right to Protect?

Humanitarian intervention:  





Permissible in strict circumstances, despite no reference in the UN Charter? Imposing of ‘no-fly zones’ by US, France and UK over Iraq in 1991 following SC Res 688: o ‘Condemns the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region. o Insists that Iraq allow immediate access by international humanitarian organisations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operations. o Appeals to all Member State and all humanitarian organisations to contribute to these humanitarian relief efforts.’ Kosovo crisis 1999: NATO bombing of Serbia (without UN authorisation) in the face of allegations/evidence(?) of genocide against Kosovo Albanian (Muslims) minority by Serbian (Orthodox) majority in the Kosovo province of Serbia. o Note the lack of condemnation by the UN (See UNSC Res 1244) Emergence of a genuine humanitarian principle? o The ‘Responsibility to Protect’

Use of Force against Terrorism:    

Contrary to the purposes of the UN Large treaty system in place Engages international humanitarian law and human rights law Several measures and bodies set up including UN global terrorism strategy, binding decisions (see UNSC Resolution on Iraq post 9/11), special rapporteurs (HR), Ad hoc committees (linked to treaties), and the creation of the counter-terrorism committee (monitoring body)...