International Law on War - Assignment Example

? The Legality Under International Law of the US Invasion of Grenada in 1983 International Law on War Comment Question 3 Section ####] [Teacher name] 20 February 2013 Article 2(4) of the UN Charter 1945 sets out a general prohibition against war, specifically, the “threat or use of force”.1 Article 51 of the UN Charter 1945 creates an exception to the prohibition against war and permits the use of force in self-defense or where authorized by the UN Security Council.2 The right to the use of force in self-defense is subject to the doctrine of jus ad bellum in international humanitarian law and requires that force used is proportionate to the threat and is discriminate in that it does not target civilians.3 Less clear however, is what amounts to a threat significant enough to invoke the right to self-defense. For example the International Court of Justice ruled that nothing short of an armed attack of high intensity would justify the use of force. In another ruling the International Court of Justice suggested that the right to self-defense could be invoked in an isolated low-intensity strike.4 Regardless there is a general standard that is safe for self-defense and where authorized by the UN Security Council force may not be used against another state not even for the purpose of “rescuing one’s nationals abroad, saving aliens from widespread deprivation of human rights” or as a pre-emptive strike “against a grave but distant threat”.5 The doctrine of ‘opinio juris sive necessitatis’ which allows an opinion of law or a necessity of law together with “state practice” dictates that the exceptions to the use of force in international law are far more flexible than they were when the UN Charter 1945 came into being.6 Since the end of World War II, the world has changed significantly to the extent that threats may be perceived differently. The invention of nuclear weapons, an increase in international human rights, “and the emergence of global terrorism” have “significantly affected attitudes toward permissible uses of force”.7 In assessing current conditions in the world today, Durant and Durant maintain that international law as it is currently constructed cannot adequately regulate peace and security. A State “must be ready at any moment to defend itself” and “when its essential interests are involved” a state “must be allowed to use any means it considers necessary to its survival”.8 Controversy and debate continuously challenged whether or not there are limitations on the right to self-defense. For example, when the US proposed the Kellog-Briant Pact of 1928, the Pact stated that no prohibition on war could restrict the right of a “sovereign state” to use force in self-defense.9 A similar statement was made by the International Military Tribunal for the Far East in 1948 which established that state sovereignty alone made self-defense an inherent right.10 The international law on the prohibition against war and the right to self-defense is therefore contested. If the doctrine of opinio juris and state practice creates customary international law, it can be argued that virtually any threat, regardless of how serious might be interpreted as a situation in which the right to self-defense can be invoked. Moreover, if state sovereignty prevails, the inherent right to self-defense gives states the authority to use force against another state for any number of reasons including pre-emptive strikes, or rescuing nationals, or any other purpose that can be peripherally justified, provided the state is protecting its sovereignty. The Invasion of Grenada The US’s invasion of Grenada is just as “controversial” as the international law prohibiting war except in self-defense.11 When the decision was made to invade Grenada in 1983, it was justified on the grounds that American citizens were in danger and it was necessary to restore peace after a coup. However, it was well-known that the primary goal was to stop the spread of communism anywhere near the US or its territories at a time when the Cold War was perhaps as strong as it has ever been. The US was joined by the Organization of Eastern Caribbean States (OECS) and together they “vastly outnumbered” the Grenada armed forces and foreign troops from Cuba and other communists states that had taken control of Grenada following the “execution of former dictator Maurice Bishop”.12 It is therefore hardly surprising that the US and the OECS were able to defeat the Cuban led troops within three days which resulted in an end to the low-intensity war in Grenada soon after it started. International law makes it unclear whether or not the invasion of Grenada was legal although it has been established by a UN Security Council vote that the war was indeed illegal.13 Since the doctrine of opinio juris and state practice together with the inherent right to self-defense makes it possible for states to broadly define what constitutes a threat to national security and state sovereignty and therefore the use of force to preserve those objectives. Therefore the use of force in self-defense can be very loosely justified. Moreover, as Dixon points out, the fact that no action was taken against the US for its invasion of Grenada, despite the stated illegality of it, the meaning of illegal war is illusive and perhaps meaningless.14 The question of the legality of the type of force used also arises since the Cubans on the island were not military personnel until after the invasion. The Cubans on the island were actually construction workers employed to construct an airfield. However, once the construction workers received word of the attack, they were instructed to take up arms against the US. Therefore within the meaning of the Third Geneva Convention 1949, they would have been combatants and thus legitimate targets in a war.15 In this regard, the use of force was discriminate against the Cuban construction workers. If the US was justified in attacking Grenada because of a perceived threat to national security and to rescue citizens from a potentially dangerous situation, Cuba would have been just as justified in joining the war to protect Cubans who were working on the island when the threat of war came. Cuba may have also been more clearly justified under the doctrine of jus ad bellum to use force against the US in self-defense since there is no question that the US attacked Cubans. There is also some controversy over the legality of the US’ bombing of a civilian hospital in which approximately 50 civilian patients were killed. The requirement of discriminate attacks is intended to prohibit targeting civilians and areas where civilians are located. However, the bombing was decidedly accidental as it did not have the red cross flag displayed and was not clearly marked on the maps that the US used. Moreover, the hospital formed a part of a building housing Grenada troops that were “firing on U.S. forces”.16 In addition, the Article 55 of the Geneva Protocol 1 of 1977 only requires that states “do everything feasible to avoid targeting civilians”.17 Although the US has not ratified the Geneva Protocol 1977, it is obvious that the bomb attack on the hospital was not deliberate. In circumstances where the US was under attack it may not have been feasible to conduct an investigation of the source of that attack. So while the attack itself complied with the criteria for discriminate force, it can be argued that the attack itself was not proportionate to the threat posed. The US was largely concerned that the construction of an airport was for the purpose of operating an air force base when Grenada argued that it was a tourism expansion project. The US suspicion of the purpose of the airport could not have been justified as an act of self-defense particularly since it questioned the sovereignty of another state to do as it wanted within its own territory. Secondly, the fear that the coup was a danger to US citizens on the Island could have been handled without the use of force pursuant to the objectives of the UN Charter: to settle disputes and conflicts peacefully. The US could have negotiated for the safe return of its own citizens without infringing on the sovereignty of Grenada. Therefore, in all the circumstances, the US attack on Grenada, although carried out discriminately, was not proportionate to the threat perceived. Works Cited Albert, Kyle. “Jus in Bello and U.S. Conduct in the 1983 Invasion of Grenada.” Washington Undergraduate Law Review, 1(2)(Spring 2007):1-7. Dixon, Martin. Textbook on International Law. Oxford: Oxford University Press, 2007. Durant, Will and Durant, Ariel. The Lessons of History. London: Simon & Schuster, 2010. Martin, Craig. “Going Medieval: Targeted Killing, Self-Defense and the Jus Ad Bellum Regime,” in Targeted Killings: Law & Morality in an Asymmetrical World. Claire Finkelstein, Jens David Ohlin, Andrew Altman, eds., Oxford, UK: Oxford University Press, 2012, Ch. 8. Murphy, Sean, D. “Protean Jus Ad Bellum.” Berkeley Journal of International Law, 27(1) (2009): 22-31. Orr, Andrew, C. “Unmanned, Unprecedented, and Unresolved: The Status of American Drone Strikes in Pakistan Under International Law.” Cornell International Law Journal, 44(2011): 730-752. UN Charter 1945. Dinstein, Yoram. War, Aggression and Self-Defense. Cambridge: Cambridge University Press, 2005. Read More