October 23, 2005

International law and the use of force

Posted in Strategy at 17:23 by graham

Although there is no judiciary or policing capability at the international level (aside from the limited actions and powers of the United Nations), there is a still an influential body of international law, respected almost all the time by almost all nations. The times when they don’t usually make the news.

A key point of procedure to bear in mind when dealing with international law, which means the law of the United Nations, is that decisions are voted upon by the fifteen members of the Security Council. To pass, a decision must have at least nine votes, including the votes of all five of the permanent members (China, France, the United Kingdom, the United States and the Soviet Union). This means the five permanent members may veto any decisions and are hence exempt from UN sanctions. This decision was taken in 1945 in San Francisco at the conference where the UN was created. Any attempt to police the behaviour of the permanent members of the Security Council would almost inevitably lead to major conflict and the destruction of the United Nations.

The composition of the Security Council permanent members and their veto powers means that the UN was largely incapacitated for the duration of the Cold War.

Day to day international law

International law ensures that day-to-day interstate relations proceed in a regular and ordered fashion. Like all good law, it is designed not to prohibit those actions which states (or individuals in a domestic setting) would normally choose to undertake, but rather to codify accepted modes of behavior; good law is facilitative, not prohibitive. It is a mechanism through which societies seek to achieve political objectives, particularly that of maintaining order.

The difficulty in setting down international law is in it being sufficiently conservative as to be of benefit to the powerful nations that will enforce it (and that would suffer limited consequences in breaking in), and sufficiently broad that most smaller states will deem it in their interest to abide by it.

States obey international law for several reasons:

  • Reputation: States seek to avoid acquiring a reputation as a law breaker (‘rogue state’) as they will then find it difficult to enter into legally binding agreements with other states. They will be cut of from the interactions of world trade and diplomacy.
  • Inherent value: States obey laws whose underpinning political rational is clear and which they agree with. For example rules on territorial integrity and inviolability of borders are of benefit to all nations.
  • Functional value: States obey the law because its overall contribution to maintaining international order is considered to be of value.
  • Interia: States become use to behaving in a fashion enshrined by law. Governing elites and bureaucracies becomes socialized into behaving in that way. Often principles of international law also feature or are incorporated into domestic law. In countries where those that formulate policy are answerable to wider public and media scrutiny policies that violate international law may be perceived as non-viable.

Even when states dis-obey international rules, they often maintain that they are acting within the law. Hitler entered Czechoslovakia in the name of self-determination; the USSR invaded Afghanistan claiming to be invited in by a newly established regime; the United States used force against the Dominican Republic claiming to be acting on behalf of the Organization of American States; and the United States attacked Iraq in 2003 claiming to be enforcing a UN resolution.

Repeated violations of international law can only undermine an order in which both the strong and the weak have a vested interest. For the former it en-shrines their dominant position although it often limits the blatantly self-interested policies they may pursue. For the weak it preserves their very existence since their survival is dependent not on defensive military capabilities but on the acquiescence of others. Given its dominant economic and military position it is remarkable not how often the Unites States of America exercises its influence on others, but how rarely.

International law and the use of force

The laws of armed conflict can be separated into jus ad bellum (the law towards war) which seeks to avert or limit the use of armed force in international relations, and jus in bello (the law in war) which governs and seeks to moderate the actual conduct of hostilities.

The jus ad bellum is founded primarily on Article 2 and Chapter VII (articles 39-51) of the United Nations charter. This insists that All Members shall settle their international disputes by peaceful means (Article 2(3)) and that 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 (Article 2(4)). It allows for the inherent right of individual or collective self-defense (Article 51).

Many states claim that humanitarian intervention constitutes an exception to the prohibition on the use of force. However a 1973 study on humanitarian interventions found that most have occurred in situations where the humanitarian motive is at best balanced, if not outweighed, by a desire to […] reinforce socio-political and economic instruments of the status quo. Thus ‘humanitarian intervention’ is often used as cover for a breach of Article 2(4).

The jus in bello does not seek to diminish or obstruct the efficacy of fighting forces (which would be impossible), but to limit the barbarity of the conflict. Wars occur within the context of international relations, and a more ‘humanely’ conducted war will give the victor: An enemy that is less afraid of surrender, better relations with other states after the war and an easier task in the reconstruction of the disputed territory. However it should be obvious that a law of war can be no more than mitigatory in effect.

A criticism commonly leveled at the jus in bello is that in its attempt to humanise war it encourages it. This argument has a major flaw; the inherent cruelty of war does not prevent its occurrence. If this were so it is difficult to imagine how war could be contemplated after the carnage of Verdun, the Somme and Passchendaele. That war continues to occur is a reflection of the fact that rarely do those who start wars have to fight in them or otherwise become their victims. To deny humanitarian mitigation to those who find themselves engaged in combat would be cruel logic indeed.

The jus in bello is also called international humanitarian law. A division is often seen between Geneva law and Hague law. The Geneva is concerned with the protection of the victims of armed conflict. It is based primarily on the four 1949 Geneva Conventions. Hague law is concerned with the methods and means of warfare. It is based primarily on the 1899 and 1907 Hague Conventions.

Steps were taken in Rome in 1998 to setup an International Criminal Court, whose primary function would be the prosecution of crimes against the Geneva and Hague laws. The United States of America has indicated that it does not recognise the authority of this court, so it’s future is uncertain.

10 Comments »

  1. STEVEN UDOSEN JR. said,

    July 27, 2012 at 11:13

    BUT IS AS IF THE USE OF FORCE IS NEVER APPLICABLE TO THE WORLD POWERS…

  2. Otuneye Durojaiye said,

    June 11, 2012 at 23:25

    can you explain the use of force in afghanitan and iraq

  3. tenneng gitteh said,

    December 7, 2011 at 09:28

    your analysis has really helped me answer a question for my second semester exam in the university of the Gambia..

  4. Sheena Hassanali said,

    September 25, 2011 at 07:33

    I have a question similar to the topic discussed.

    Are the provisions of the United Nations Charter concerning the use of force adequate as statements of the applicable law today? Thank You, Student.

  5. Seung Mi said,

    March 25, 2011 at 17:32

    how, if at all, has the phenomenon of terrorism altered international rules on the use of force?

  6. BEGASHAW said,

    December 29, 2009 at 18:13

    USE OF FORCE SHOULD BE REASONABLY

  7. Monique Wyatt said,

    April 14, 2009 at 11:47

    Interesting topic!

    I have a question, where does one draw the line between the use of force and the act of aggression? Isreal in bombing Gaza and causing death of hundreds of Palestinean children, claimed that it was self defence and thus falling under the “use of force” which is justiable under the International law.

    The Gaza – Isreal, US – Iraq, if they claimed that this was self defence (US claimed pre-emptive self defence) what happened to the principle of proportionality? the force use in both cases were not proportionate.

    International law protects the richer states and punish the poorer states who sign and ratified most international treaties in hope of getting aids.

    Thank you

    Monique

  8. Toyin Olawunmi said,

    December 16, 2008 at 15:50

    1. Everyday we face challenges; time and space continue to shift even faster than the committee of nation’s attempt at managing international crises. The Laws of war are not catching up with evolving trends of rebellious activities and new wave of terror. In West Africa diamonds and other mineral resources have continued to attract guns. International business is at conflict with international law on the use of force as New York, London and Brussels can not survive without Blood Diamonds or the crude oil from the Niger Delta. The use of force in international law, the conduct of hostilities during international and non-international armed conflicts, protected persons and protected objects, the law of weapons, rules of engagement, treatment of detainees, interrogation procedures, and occupation law have gone obsolete and require serious attention.
    2. Kosovo and Rwanda always come to mind emotively, but these are a coin of different sides. The nearness of Kosovo to Western Europe has made it very compelling to treat. This is because of the history and lessons of WWII. In Africa South of the Sahara and other areas of Asia and Latin America, the Hague and International Criminal Court (ICC), is not the right recipe. The Democratic Republic of Congo, Nigeria and Sierra Leone are areas of perpetual foreign concern because of the business dimension. Law according to some is created merely for economy and application of law is for control. Hitler entered Czechoslovakia in the name of self-determination; the USSR invaded Afghanistan claiming to be invited in by a newly established regime; the United States used force against the Dominican Republic claiming to be acting on behalf of the Organization of American States; and the United States attacked Iraq in 2003 claiming to be enforcing a UN resolution. I will prescribe therefore that there should be other laws to sanction weapon manufacturers, and dealers in Diamonds, crude oil, Uranium etc that are tainted with blood. The alternative to this option is more diamonds in the west and more deaths in Africa.
    3. Health insurance, Illegal immigration, and war on terror are areas that have drawn on the attention of the West. Within this mix is a continent so rich, so vast and so populous but without future. I was once told, “If Africa is not ready, rest of the world will not wait for her”. My take on this is that, international law also can not be applicable in such an environment. Cicero observes somewhere in his Epistles, that as there are two modes of contending, the one by argument, and the other by force, and as the former is peculiar to man, and the latter common to him with the brute creation, we must have recourse to the latter, when it is impossible to use the former. And again, what can be opposed to force, but force? Ulpian observes that Cassius says, it is lawful to repel force by force, and it is a right apparently provided by nature to repel arms with arms,with whom Ovid agrees, observing that the laws permit us to take up arms against those that bear them. Irrespective of the opinion of lawyers and human right advocate, after examining the sources of right, the first and most general question that occurs, is whether any war is just, or if it is ever lawful to make war. But this question like many others that follow, must in the first place be compared with the rights of nature. Cicero in the third book of his Bounds of Good and Evil, and in other parts of his works, proves with great erudition from the writings of the Stoics, that there are certain first principles of nature, called by the Greeks the first natural impressions, which are succeeded by other principles of obligation superior even to the first impressions themselves. He calls the care, which every animal, from the moment of its birth, feels for itself and the preservation of its condition, its abhorrence of destruction, and of every thing that threatens death, a principle of nature. Hence, he says, it happens, that if left to his own choice, every man would prefer a sound and perfect to a mutilated and deformed body. So that preserving ourselves in a natural state, and holding to every thing conformable and averting every thing repugnant to nature is the first duty.
  9. 13 said,

    December 23, 2005 at 18:42

    Law is created merely for economy. Application of law is for control. Following law is an infringement of freedom.

    We all know the difference between acceptable and unacceptable.

    The unwritten laws of the universe: 1. Love of self. 2. Love of man.

    You figure out the rest. Key words: Love, Loyalty, Respect, Honesty, Honor, Pride

    One World, One Love, One Mind

    “Freedom of Choice”

  10. Chloé said,

    November 28, 2005 at 16:58

    I don’t have a comment but a question!

    I am a student and I have an essay to hand in about the use of force. Could you possibly give me some advice on my essay?

    Here is an outline of how I think I will organise my essay:

    I. the law on the use of force is controversial because often the states manipulate it a. in the last 50 years some countries just avoided tu use the term “war” in their conflicts with other states -> made it legal. ex : invasion of Mandchouria by Japan, of Ethiopia by Italy b. states justify the use of force by abusing of the self-defense principle. ex: USA with Nicaragua

    II. the law on the use of force is also ineffective and controversial because it is inadequate a. today most conflicts involving the use of force take place on a state level, not between the states, thus tha law is ineffective as far as intra-state wars are concerned. b. the law is incomplete, it doesn’t say anything about forces other than military, like economic force (embargo). c. new type of war in which th use of force is involved: terrorism. But the law on the use of force doesn’t say anything about it.

    The question is: “the law on the use of force is one of the most controversial areas of international law and one where the law may seem uneffective”, discuss this statement.

    The problem is that I have never studied law, I am a language student (I am on an exchange program and I had to take the “international law and institutions” module, which is an advanced module). It would help me a lot if you could tell me how I could improve and complete this essay. Thank you very much.

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