Government 1740 International Law Summer 2008 Lecture 9: The Use of Force

Outline I. “Just war” doctrine II. “War” in the twentieth century and the evolution of doctrines of use of force III. Regulation of the right to resort to force A. The League of Nations Covenant B. The Kellogg-Briand Pact (1928) C. The Charter of the United Nations (1945) 1. Outlaws wars of aggression 2. Chapter VII: collective security 3. Recognizes the right of self-defense 4. What about anticipatory self-defense? (Example: the invasion of Iraq) IV. What influences norms regarding the use of force?

I. Just War Doctrine Jus ad Bellum

Just War Doctrine  Competent authority  Just cause  Proportional response  Right intention

II. War in the 20 th Century Warsaw, September 1939.

War in the late 20 th /21 st Century  Reluctance to declare war  International versus civil war  Involvement of non-state entities

Evolution of the Doctrine  Obvious difficulties with JWT for the 20 th century  From “Just” to “Permissible”  Toward a Ban on Offensive Wars

III. Legal Regulation of the Right to Resort 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 : Restricted the rights of members to resort to war  Obligated the members to avoid non-war hostilities  Zacher: the “emergence stage” of norm development “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.  Zacher: the “acceptance stage” of norm development

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 responsibility  1970s: Zacher: “institutionalization phase” FIRST SESSION OF THE GENERAL ASSEMBLY(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 ?  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 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

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”?) later this week!