International Law War: International and Civil

Just War: Avenging injuries against a foe that fails to punish wrongs committed by its citizens.  “that kind of war is undoubtedly just which God Himself ordains” St. Augustine  i.e., obtaining reparations and Holy wars were okay

Just War Just Cause Competent Authority Comparative Justice Right Intention Last Resort Probability of Success Proportionality Properly Authorized Just Cause Peaceful means exhausted Victory Likely Probability that war will not produce more evil than good

War: International and Civil OLD customary law seemed to be: war is justified if fought for the defense of vital interests  Each State was entitled to decide what its vital interests were  Sooooooo, were there really any limits on war, at least to the winner???

War: International and Civil But the way States thought about war started changing, slowly, but changes, none-the-less.  1815/1839 treaties guaranteeing Switzerland and Belgium neutrality and protection against attack  1907 Hague Convention II prohibiting the use of force to collect contract debts (with exceptions)

War: International and Civil  WWI and 9 million deaths: “War, no matter how much we enjoy it, is no strawberry festival.” Frank Burns  League of Nations has a three month ‘cooling off’ period before members were supposed to go to war Members were not supposed to go to war against other members  1928 Kellogg-Briand Pact (Peace of Paris) intent was to outlaw war as policy

War: International and Civil UN Charter, Article 2(4):  “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”  This may also be customary international law  Some authors: Article 2(4) should be interpreted as totally prohibiting the threat or use of force, period.

War: International and Civil  Note it outlaws the “threat or use of force” not just ‘war’  Note, also, that it outlaws threat/force only against ‘territorial integrity or political independence’ So can you use threat/force for other purposes??? Rescue one’s nationals, halt genocidal atrocities, prevent crimes against humanity??? Or does the ‘other manner inconsistent with the Purposes of the United Nations’ save it???

War: International and Civil  Bottom line: International law or a State’s rights should not be enforced at the expense of international peace. Corfu Channel

War: International and Civil Exceptions:  Force authorized by the UN or ‘competent regional organization’ (Later)  Self-defense (Article 51): Charter does not ‘impair the inherent right of individual or collective self-defense in an armed attack occurs... until the Security Council has taken the measures necessary to maintain’ peace.

War: International and Civil Caroline: For British action to be legal must show “a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation.” And had to show that by entering the US, the British “did nothing unreasonable or excessive; since the act justified by the necessity of self-defense must be limited by the necessity and clearly within it.”

Preventive self-defense

War: International and Civil Preventive Self-Defense  Against what??? A wide range of interests??? Probably not  How about Cuba in 1962 “not a good example... of the doctrine of anticipatory self-defense, because a communist attack was probably not imminent” What is imminent??? A question of opinion and degree Bound to be subjective and capable of abuse

Preventive Self-Defense-Terrorism Terrorist threat is real and genuine Terrorist threat is immediate and imminent, allowing no time or available mechanism for negotiation or deliberation The preemptive response taken is a military necessity and proportional to the perceived threat

War: International and Civil  “Fear of creating a dangerous precedent is probably the reason why states seldom invoke anticipatory self-defense in practice.”  Israel 1967  Israel-Iraq 1981  US-Libya 1986  US-Iraq 2003

War: International and Civil  Self-defense may NOT be used to settle disputes as to ownership of territory Falkland/Malvenes 1982 Iraq/Iran 1980; Iraq/Kuwait 1990 BUT may defend an attack even if the other party has a better title than you if you are in possession

War: International and Civil  Self-defense and attacks on ships/aircraft? Yes  Armed Protection of Citizens? Israel Entebbe 1976 US Iran 1980 US Grenada 1984 Mixed Reviews Is this really self-defense or self help???

War: International and Civil  Reprisals “Self-defense does not include a right of armed reprisal; if terrorists enter one state from another, the first state may use force to arrest or expel the terrorists, but, having don so, it is not entitled to retaliate by attacking the other state.” US Libya 1986 US Panama 1989 Israel US Iraq 1993 Governed by proportionality

War: International and Civil Self-defense must be necessary, immediate, and proportional to the seriousness of attack  Falklands 1982: waited a month to counter- attack  Enough to repel attack (and, maybe, to prevent a repeat attack); retaliation and punitive measures are forbidden

War: International and Civil  Collective self-defense Defense of others: Other state has right to defend itself and asks others to help  Collective security Goal to maintain general international peace and security

Civil Wars If not a ‘civil war’ yet, may help the gov’t A war between two or more groups of the same State (one of which may be the de facto or de jure government) Not against international law per se Participation by others  Foreign States are forbidden to help insurgents  Nicaragua v. U.S.A.

Civil Wars  Exception [maybe] to rule of no help my be where the government is receiving foreign help Counter-intervention  Many States argue that a State may give help to the government because a State may invite other to help (a kind of self-defense argument) Hungary, Czechoslovakia, Afghanistan and the USSR But who is the de facto or de jure government?

Civil Wars Collective self-defense against subversion (out-side help)  Armed Attack only???  Troops, but not weapons???

Self-determination Who does self-determination apply to?  Article 73, UN Charter: every territory ‘which is geographically separated and is distinct ethnically and/or culturally from the country administering it’ Especially if territory is in a position of subordination to the administering power  Peoples subjected to alien subjugation and exploitation

Self-determination Can choose independence, integration, or association Colonial enclaves Western Sahara Falklands

Self-determination “All peoples have the right to self- determination” BUT: self-determination does not authorize any action which splits up independent States “possessed of a government representing the whole people... without distinction as to race, creed, or color.”

Self-determination So, does self-determination apply outside a ‘colonial’ type situation??? Palestine? Kurds?

Self-determination Legal Problems  Colonial State retains sovereignty over its colony until exercise their right of self- determination  Self-determination for independence creates a new State with the boundaries of the colony- even if splits ethnic/religious groups

Self-determination Wars of National Liberation  A civil war or an international war???  People that have a legal right to self- determination are entitled to fight a war of national liberation  Illegal to use force against an attempt to exercise right of self-determination

Self-determination Minority populations have no ‘right’ under international law to self-determination or succession However, it isn’t against international law for a civil war  But then we are back to who can help in a civil war and what kind of help