The Use of Force in International Law
The Use of Force in International Law
The Use of Force in International Law
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Contents
• Introduction
• Learning outcomes
• Conclusion
• Keep on learning
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• References
• Further reading
• Acknowledgements
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Introduction
In this free course, The use of force in international law, you will study
the law on the use of force. This is one of the central topics in
public international law, as it contains the body of principles aimed
at ensuring territorial sovereignty and independence of states,
which are the main actors in international law.
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Learning outcomes
After studying this course, you should be able to:
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Covenant did not in fact revoke the right of states to resort to war,
although it subjected this provision to some limitations. In 1928,
another attempt at the legal regulation of the use of force was
made, in the form of the General Treaty for Renunciation of War as
an Instrument of National Policy, more commonly referred to as
the Kellogg–Briand Pact. Parties to this treaty declared that they
‘condemn recourse to war’ and agreed to ‘renounce it, as an
instrument of national policy in their relations with one another’
(Article 1).
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subjects. The reason behind this act was the use of the vessel to
transport munitions and groups of Americans, who were
conducting attacks on the Canadian territory. The US Government
declared that the attack on the vessel constituted an attack against
the American territory. The British Government responded by
claiming the right to self-defence. The subsequent diplomatic
correspondence between the parties contained an outline of the
key elements for legitimate self-defence. The US Secretary of
State, Daniel Webster, emphasised that for the self-defence to be
lawful in international law, the British Government must prove the:
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Activity 1
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attack. The burden of proof in such a case lies with the state
seeking to justify the use of force in self-defence. Nevertheless,
not all attacks will constitute an armed attack for the purposes of
Article 51: only the most grave forms of attack will qualify
(Nicaragua Case, para.191).
Furthermore, the ICJ held in the Nicaragua Case (Merits) that ‘self-
defence would warrant only measures which are proportional to
the armed attack and necessary to respond to it’ (para. 176). This
statement sets out two important principles in international law
concerning the use of force: the principle of proportionality and the
principle of necessity. In this context, proportionality means that
the response to an armed attack must be reflective of the scope,
nature and gravity of the attack itself. On the other hand, the
principle of necessity guards against the use of measures which
are excessive and not necessary in response to an armed attack.
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the use of force. The UN Charter allows for the use of force only in
extreme circumstances, as a means of last resort, once all
peaceful means have been exhausted. Furthermore, the use of
force against another state in circumstances where there is a lack
of an armed attack in the first place questions the necessity and
proportionality of an attack carried out by a state which acts on the
basis of ‘pre-emptive self-defence’.
The ICJ has not yet commented on the existence of a right to use
force against non-state actors, nor the right to pre-emptive self-
defence.
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Activity 2
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(Lauterpacht, 1952)
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The ICRC has three emblems (Figure 3); their purpose is to make
combatants aware that people, buildings and vehicles bearing the
symbols are protected under the 1949 Geneva Conventions and
should not be the object of attack.
Figure 3 The three emblems of the ICRC: (a) red cross; (b) red crescent; (c)
red crystal
View description - Figure 3 The three emblems of the ICRC: (a) red
cross; (b) red crescent; (c) red ...
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• international
• non-international (internal).
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Not all fighting within one country will be a civil war. There is a
difference between internal disturbances, such as riots or protest
against the state authorities, and NIAC. NIAC requires reaching of
a certain threshold of intensity of general violence and it must
extend over a certain period of time. The legal framework
applicable to NIAC is much more limited than the framework
applicable to IAC. It comprises Article 3 common to all four
Geneva Conventions (Common Article 3) and the AP II.
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armed conflicts are much more extensive under CIHL than under
treaty law. This is of particular significance, as the majority of
modern armed conflicts are of a non-international character.
Furthermore, as the treaty law regulating NIAC is rather limited,
development of customary rules enhances protection of victims,
but also those taking active part in hostilities.
1. proportionality
2. necessity
3. distinction.
You became familiar with the first two principles in Section 1. The
third main principle of IHL relates to the distinction between civilian
objects and military objectives. IHL requires all parties to a conflict
to balance military necessity with humanitarian principles, aimed at
limiting suffering in warfare. The application of the principle of
distinction means that only military objectives can be subjected to
an armed attack. This rule is codified in Articles 48 and 52(2) of AP
II, to which no reservations have been made. It is a very important
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CIVILIANS COMBATANTS
do not take part in hostilities do take part in hostilities
do not have a right to take part in have the right to take part in hostilities and
hostilities (have the right to be have the obligation to observe the rules of
respected) IHL
may be punished for participation in may not be punished for the mere
hostilities participation in hostilities (but will be
punished for committing violations under
IHL)
generally: are protected because they are protected WHEN they no longer
DO NOT participate in hostilities participate in hostilities
• protected as • protected if they have
civilians in the fallen into the power
hands of the of the enemy
enemy • if wounded, sick or
• protected against shipwrecked
attacks and • protected against
effects of some means and
hostilities methods of warfare,
even when fighting
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Activity 3
Bearing in mind what you've learned so far about IHL, try to apply
your knowledge in a practical case scenario by role playing in an
online game, where you will become a commander of a prisoner of
war camp. Your role will be to run the camp according to the
principles of IHL. You will receive feedback on the decisions you
have made as you progress through the stages of the game. The
game is called ‘Prisoners of war’.
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During the war in the former Yugoslavia, in July 1995, over 8000
civilian men of Bosnian Muslim origin, were killed by the Army of
Rebuplika Srpska under the command of General Ratko Mladič
(see Figure 5). The massacre was part of a policy of so-called
ethnic cleansing – a deliberate strategy aimed at the creation of
ethnically clean areas. This intentional mass killing not only
constituted a grave violation of the rules of IHL regarding the
protection of civilians, but also amounted to genocide.
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• Mothers:
• (Articles 14, 16, 17, 21, 22, 23 GC IV)
• Detainees and Prisoners of War (POWs):
• Articles 14(2), 25, 97, 108 GC III
• Articles 76, 85, 89, 91, 97, 124, 132 GC IV
• Articles 76(2) GC AP I
• Articles 5(2)(a), 6(4) GC AP II.
• Specific provisions regarding protection from wartime
sexual violence:
• Articles 27 GC IV
• Articles 76 (1) GC AP I
• Articles 4 (2) GC AP II
• Common Article 3(1)(c) GC.
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Activity 4
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Activity 5
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(Chomsky, 1994)
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• to prevent
• to react
• to rebuild.
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(Annan, 1999)
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Conclusion
In this free OpenLearn course you have learned about the
international legal framework which regulates the use of force by
states. You have also studied the basic rules of IHL, which
regulates conduct during armed conflicts.
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Keep on learning
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References
Alvarez, J. E. (2008) ‘The schizophrenias of R2P’ in Alston, P. and
MacDonald, E. (eds) Human Rights, Intervention, and the Use of
Force, Oxford, Oxford University Press.
Annan, K. (2000) ‘We the Peoples: the role of the United Nations
in the twenty-first century’, report of the Secretary-General of the
UN, UN Doc. A/54/2000.
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Von Elbe J. (1939) ‘The Evolution of the Concept of the Just War
in International Law’, American Journal of International Law, vol. 33,
no. 4, pp. 665–88.
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Cases:
USA
Other jurisdictions
ICJ:
Legislation:
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UN Charter 1945
Resolutions:
United Nations
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Further reading
If you found the subject matter of this unit interesting, here are
some further resources which you may find of interest.
BBC (2011) Rwanda: How the genocide happened, BBC News Africa.
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Human Rights Watch (1999) Leave None to Tell the Story: Genocide in
Rwanda.
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Acknowledgements
This free course was written by Olga Jurasz.
Except for third party materials and otherwise stated (see terms and
conditions), this content is made available under a Creative
Commons Attribution-NonCommercial-ShareAlike 4.0 Licence.
Images
Media
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Activity 1
Comment
All of the above texts comment generally on the application of the
‘right to self-defence’ in international law and comment on the
meaning of an ‘armed attack’ (see for example para.195 of the
Nicaragua Case).
It is a good idea, if you can find the time, to read the other parts of
this decision, as it provides a useful context to your studies.
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Activity 2
Comment
In considering these issues, you may find it helpful to watch the
following short film from the International Committee of the Red
Cross: International Humanitarian Law: A Universal Code. It is
approximately 13 minutes long.
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Activity 3
Comment
This activity is designed not only to test your understanding of the
rules of IHL, but also your ability to apply it to particular situations.
Importantly, the exercise highlights one of the main challenges to
the operation of the rules of IHL, namely their implementation
during armed conflict by the actors involved. You should get a
taste of the complexity of the decisions which are made in wartime.
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Activity 4
Comment
Rape and other forms of sexual violence have been used as a
weapon of war for millennia. The aim of using sexual violence in
conflict is to victimise women and also to assert domination over
the enemy. Furthermore, it is a psychological wartime tactic, which
purports to attack and weaken the entire community to which the
victim belongs. From a socio-cultural perspective, sexual violence
is used to assert specific political goals by means of humiliation,
degradation and the terrorisation of a particular social group.
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All parties are bound by the core principles of IHL, especially the
principle of distinction (see para. 339 of the report) and the
principle of differentiation. Furthermore, international law prohibits
and criminalizes sexual violence, in particular rape as a war crime
and/or a crime against humanity. The use of sexual violence as a
weapon of war has been condemned on an international level (UN
Security Council Resolutions 1325 of 31 October 2000 and 1820 of
19 June 2008) and numerous calls have been made to stop this
practice.
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Activity 5
Untitled part
Comment
You could start your arguments from an analysis of the differences
between the legal justification for the use of force in self-defence
and humanitarian intervention. Look again at the rules of jus ad
bellum – can they be applied to humanitarian intervention? Are
there any irreconcilable differences between the two acts (self-
defence and humanitarian intervention), which would determine
their different legal regulation?
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Philip Spoerri:
The ICRC has double responsibility. On the one
hand, it has a responsibility to check and identify
where violations of international humanitarian law
occur, and to intervene on the level of the relevant
authorities to counter these violations. And on the
other hand, the ICRC also has a role to clarify and
develop international humanitarian law when
necessary.
Narrator:
The Geneva Conventions have today been accepted
by every country on the planet. These conventions
and their three additional protocols contain a vast
array of provisions. Essentially, however, all their
different articles are variations on just a few
fundamental rules. Spare civilians. Spare the
wounded and sick. Spare people who are detained.
When the members of fighting forces fail to draw a
distinction between the civilian population and
military objectives, the result is an endless, terrifying
cycle of reprisal and counter-reprisal. Civilians taking
no direct part in the hostilities must be spared by the
belligerents at all costs. Under no circumstances may
they be targeted. Failure to obey this fundamental
rule too often forces people to flee their homes, with
all the pain and uncertainty this brings.
Reed Brody:
Unfortunately, what we’ve seen in the last couple of
decades is that the main victims of armed conflict are
civilians, men, women, and children, that the idea of
war between two armies who line up on a battlefield
and fight each other is long past. Now we see that up
to 90 per cent of the casualties of modern warfare are
civilians.
Narrator:
Sparing the wounded and sick, whether civilian or
military, whatever side they belong to, is obligatory.
As Henri Dunant always stressed, a wounded soldier
is a non-combatant. But sparing the lives of victims
isn’t enough. First aiders, ambulance staff, and
hospitals must also be protected. The distinctive Red
Cross and Red Crescent emblems, and more recently
the Red Crystal, exist to safeguard medical activities.
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