1. LECTURE 10 USE OF FORCE USE OF FORCE A. Introduction 1. Rules pertaining to the use of force and armed conflicts 2. It is in two: a) ius ad bellum- rules governing the resort to armed conflict b) ius in bello- rules governing the actual conduct of armed conflict

2. 10.1 A. Lawful and unlawful wars before 1945 1. Teachings in ancient times were dominated by Roman Catholic Church. St Augustine AD354- 430 – Just wars those to avenge injuries 2. Late 16 th century the distinction between just and unjust wars begun to break down. Wars were said to be justified if they were fought for the defence of certain vital interests which were never defined

3. 10.2 1. The suffering of people during WW1 caused revolutionary change in attitudes towards war. Hence the covenant of the League of Nations signed in 1919 which advised members to submit a matter for arbitration of judicial settlement or to inquiry by the council

4. 10.3 A. Prohibition of force in the UN Charter: 1. Article 2 (4) members shall refrain in their international relations from the threat of use of force against the territorial integrity or political independence of any state 2. war has a technical sense in international law and states often engage in hostilities while denying that they are technically in a state of war such hostilities can range from minor border incidents to exclusive military operations

5. 10.4 1. Article 2 (4) is broadly drafted since it is inconsistent with the purposes of the UN since wide variety of purposes can allow war to be waged to protect human rights, enforce certain legal rights 2. Check Corfu Channel case 3. Exceptions exist for use of force in the UN Charter

6. 10.6 A. Self-defence 1. Self-defence is another exception under UN Charter Article 51 and is a justification for NATO and Warsaw Pact B. Preventative self defence 1. dans les cas ou un membre… est l’objet d’une aggression armee- (state can be an object of attack before an attack occurs 2. Some are for anticipatory self defence

7. 10.7 1. Article 53 of the Charter provides that parties to a regional arrangement may take enforcement action against “renewal aggressive policy on part of the former, hence this is not necessary if article 51 permitted anticipatory self defence. 2. USA did not invoke right of anticipatory self defence in order to justify quarantine imposed on Cuba during the Cuban missile crisis because USSR was going to use it on sites in Europe

8. 10.8 1. Fear of creating a dangerous precedent is probably he reason why states seldom invoke anticipatory self defence in practice but Israel bombed a nuclear reactor in Iraq claiming anticipation for attack from Iraq but security council unanimously condemned Israel.

9. 10.9 A. Self defence and claims to territory: 1. It is unlawful to attack a territory which is in possession of another state even though the state using force consider that it has a better title to the territory in question than the state that posses it.2. When Agentina invaded the Falkands Islands in 1982 the security council passed a resolution demanding an immediate withdrawal of all Argentinean forces from the island and this was implied condemnation of the use of force.

10. 10.10 A. Self defence against attacks on ships and aircraft. In CORFU CHANNEL CASE the ICJ held that British Warships attacked while exercising, the right of passage in foreign territorial waters were entitled to return fire

11. 10.11 A. Armed protection of nationals abroad: 1. Most states and writers agree that attacks on state’s nationals resident abroad do not entitle the state to use force in order to defend its nationals without the consent of the foreign government.2. Rescue operations to protect a state’s own nationals have found approval or understanding by other states under certain circumstances and have met a relative lack of condemnation by organs of the UN.

12. 10.12 A. Armed reprisals. In advisory opinion on the legality of the use of nuclear weapons 1996 ICJ noted reprisals “are considered to be unlawful” B. Inadequacy and proportionality: 1. Force used in self defence must be necessary, immediate and proportional to seriousness of the armed attack

13. 10.13 1. Force used in self defence must be necessary, immediate and proportional to seriousness of the armed attack 2. Immediacy requires that the attack of self-defence must be taken immediately subsequent to the armed attack.

14. 10.14 A. Collective self defence 1. Article 51 provides for individual or collective self defence 2. According to the ICJ in NICARAGUA VS USA one state may not defend another state unless that other state claims to be the victim of an armed attack and request the first state to defend it e.g. Kuwait and Saudi Arabia against Iraq, DRC against Uganda and Rwanda.

15. 10.15 A. Civil wars- war between two or more groups within a state, one which must be the government,There is no rule in international law against civil wars. 1. Article 2 (4) prohibits the use of force in international relations only 2. The use of force to frustrate the exercise of a legal right of self-determination is regarded as illegal. 1. Participation by other state in a country ‘s civil war- foreign state are forbidden to give help to insurgents in a civil war.

16. 10.16 In case of Nicaragua vs USA ICJ Rep 1986.p14. The US adopted counter insurgency strategy against the establishment of Sadinista regime in Nicaragua and the subsequent spread of revolutionary movements in neighbouring countries. The ICJ which although the US refusal to accept the jurisdiction of the court proceeded to a judgement on the merits against the US and raised a number of points “was not only illegal intervention in the domestic affairs of foreign state but also in violation of the principle of the prohibition of force”

17. 10.17 The right of counter intervention as it is sometimes called is often supported by the argument that counter intervention is necessary to protect the independence of a country where civil war is taking place on the grounds that the established authorities have lost support and have become puppets controlled by a foreign state.

18. 10.18 a) In US VS NICARAGUA the court held that the plead by the US that it was aiding because Honduras and Costa Rica had been attacked by Nicaragua was void since these countries had not requested collective self defence b) To send troops to the territory of the state without the consent or the government was invasion. c) Supply of weapons does not constitute armed attack but the affected state can seek appropriate counter measures against the wrong doing state and that can be carried out by the injured sate not a third state

19. 10.19 Help for established authorities: a) A government until it is definitely overthrown remains competent to invite troops into state’s territory and to seek other forms of foreign help, whatever the effect which that help may have on the political future of the state. b) Circumstances aught to avoid states lying that they were invited and /or declaring certain government they support as legitimate.

20. 10.20 1. Collective self defence against subversion: a) Every state considers itself entitled to defend an ally against foreign subversion b) Anticipatory self defence cannot be invoked in the context of self defence

21. 10.21 1945 there has been a tendency for states to try to justify their participation in foreign civil wars especially defending that state of subversion e.g. US in Lebanon, Dominican Republic, and Vietnam.It may be therefore that we are witnessing the emergence of a new rule of international customary law which will permit states to supply established authorities with money and arms during every type of civil war, but forbids states to send troops help established authorities except when foreign subversion is occurring.

22. 10.22 A. Self determination and use of force: 1. The legal right of self determination clearly applies to non self-governing territories, trust and mandated territories, to other territories is uncertain. 2. Creation of territory- succession was not regarded as creating a new state until the succession movement had established permanent control over territory in question. 3. a state established in violation of the rights of self determination is probably nullity in the eyes of international law e.g. Apartheid south Africa.

23. 10.23

24. A. Wars of liberation 1. If the right of self determination is refused by a state administering they may wage a war in order to establish self determination in practice. 2. Western states regards this as civil war but communist as internal war. 3. Intervention by a foreign state in wars of national liberation would be harmful if it could be shown that national liberation movement was the victim of armed attack

25. 10.24 A. The greatest deficit in modern IL 1. is that they are often imprecise practice has been with reliance on imprecision 2. Many states want to retain the possibility of using force in certain circumstances but they know that an interpretation which allowed them to do so would also allow other states against them, hence keep options open.

26. 10.25 MEANS OF WAGING WAR AND CRIMINNAL RESPONSIBILITY- IUS IN BELLO A. Introduction 1. deals with conduct of hostilities when war breaks out B. nuclear weapons 1. 1961 the UNGA passed a resolution declaring the use of nuclear weapons illegal. 2. there remains an underlying principle that acts of war should not cause unnecessary suffering

27. 10.26 1. Handing an advisory opinion of WHO use or threat of force by means of Nuclear weapons that is contrary to Article 2. Paragraph 4 of the UN Charter that fails to meet all requirements of Article 51 is unlawful and that it should be compatible with requirements of international law applicable in armed conflict

28. 10.27 on testing nuclear weapons. On a case brought by Australia and New Zealand against France the ICJ held it had to render a decision because it found France had in meanwhile bound itself by Unilateral declaration that it would discontinue atmospheric tests in south pacific

29. 10.29 A. the law of neutrality and economic uses of maritime warfare: 1. Belligerent states have broad discretion in determining whether vessels, air craft and goods have enemy character 2. Ships whatever their nationality or function, are subject to visit, search and diversion beyond neutral territorial waters 3. Private enemy property, unless it enjoys special protection, may be captured and seized if it is found outside neutral jurisdiction

30. 10.30 1. The right of capture and seizure does not apply to neutral vessels and goods unless they contribute to the fighting or war sustaining efforts of the enemy 2. Geneva convention of 1949 forbids reprisals against the persons, buildings, vessels, equipment and property protected by convention

31. 10.31 A. War crimes trial- states have to obey the laws. 1. There is a danger that the instruments may be used as an instrument of revenge 2. Defendants in war crimes trials often put forward that they were under order from their superior but this rarely succeed 3. Nuremberg and Tokyo tribunals remained isolated precedents in spite of many wars of aggression e.g Khmer Rouge in Cambodia.

32. 10.32 A. International criminal Tribunal for former Yugoslavia: 1. Jurisdiction is limited it does not extend beyond the territorial bounds of former Yugoslavia and also operate as of 1 January 1999. 2. only pertains to violations of international environmental law and customary as it relates to violations of laws or customs of war, the crime of genocide and crimes against humanity

33. 10.33 H. The Rwanda Tribunal- established Nov 1994 to deal with crimes committed in massacres in Rwanda I. Process is on way to establish a permanent international court but conflict pertaining to state sovereignty exist and hamper efforts

34. 10.34 H. Only a few of the state parties to the 1949 convention have so far met their obligations to transform conventions into legal systems to ensure punishment of war crimes and misuse of red cross