International Law and the Use of Force (LG566) Topic 2: Pre-Charter Law on the Use of Force

Traditional Just War Theory  Earliest attempts to limit recourse to the use of force can be traced back to the writings of various ancient civilisations and of early religions  India, China and Babylon all have limits on the waging of war  Ancient Greece and Rome – belief that some wars were just and therefore legal

Traditional Just War Theory  Holy War in Old Testament  ‘Jihad’ in Islam  Examples also found in Hinduism

Medieval Just War Theory  If a war had a just cause it was legal  Developed by Western Christian Religious Thinkers, such as St Augustine and St Thomas Aquinas  Gradually brought into the remit of international law by early international lawyers such as Grotius

Problems with Medieval Just War Theory  Decline in power of Catholic Church led to States deciding for themselves on the justness of their own cause in any given conflict, and the possibility of two States resorting to force against each other, each with their own just cause  Neglected the practicalities of the destructiveness of war  Very little thought was given to, or effort expended on, the formulation of procedural or institutional techniques for avoiding or controlling war  Confined by Christians to people of their own sort and to members of their own religion

War as Fact Period  Rise of idea of Sovereignty  States could wage war when and where they wished and were answerable to no- one  But most States did attempt to justify wars in some manner

Progressive Steps regarding Restraint of Use of Force  Treaties – Non-Aggression / Friendship Treaties; Bryan Treaties  Conferences – International Peace Conferences in The Hague 1899 and 1907

League of Nations Period  LoN set up in 1920 under Treaty of Versailles  Main aim: 'to promote international co- operation and to achieve international peace and security' (Preamble, Covenant LoN)

League of Nations Period  Art. 12 of Covenant contains a Prohibition on War: 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. In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute

League of Nations Period  According to Article 16 of the Covenant, any State resorting to force not in accordance with the procedural provisions of the Covenant would be the object of sanctions, both economic and diplomatic by all other members of the League and there was also the possibility of military sanctions if the Council recommended such.

League of Nations Period  Other important legal instruments regarding the use of force during this period include: 1923 Draft Treaty on Mutual Assistance 1924 Protocol for the Pacific Settlement of International Disputes – The 'Geneva Protocol' General Act for the Pacific Settlement of International Disputes The Kellogg-Briand Pact

Traditional International Law and the Use of Force  Traditional International Law recognised 3 categories / levels of challenges to the established authority 1. rebellion 2. insurgency 3. belligerency  The rights and obligations of parties to a conflict are decided firstly by the status ordained on the factions in a conflict.

Rebellion  Involves merely sporadic and isolated challenges to the legitimate authority, conferring neither rights nor duties on the rebels  Comes within the exclusive remit of the sovereign State, even if a state of rebellion is recognised by a third state  Rebels can legally be treated as criminals under domestic law and, if captured, do not enjoy prisoner of war status

Insurgency  ‘Insurgents’ have quasi-international status  The threshold of insurgency is unclear but it seems to be the case that insurgency constitutes a civil disturbance which is usually confined to a limited area of the State's territory and is supported by a minimum degree of organisation

Insurgency  An analysis of the law concerning insurgency leads to the conclusion that certain characteristics must attach to rebels for them to become insurgents, i.e. sufficient control over territory and requisite military force to incur interest of foreign States because of the possibility of the actions of the insurgents having an adverse effect on foreign States

Belligerency  Involves a conflict of a more serious nature than either rebellion or insurgency.  It is also a more clearly defined concept of international law than either of the other categories of conflict.  Recognition of belligerency formalises the rights and duties of all parties to a war.

Belligerency  Institut de Droit International laid down pre- requisites of belligerency in 1900 in Annuaire de l’Institut de droit international:  (1) the insurgents had occupied a certain part of the State territory;  (2) established a government which exercised the rights inherent in sovereignty on that part of territory;  (3) if they conducted the hostilities by organized troops kept under military discipline and complying with the laws and customs of war.