International Law - Essay Example

Contemporary International Law and the Right of s to Use Self-defence Against Non Actors Introduction Under international law, a s right to use military force is interpreted by reference to the principles of jus ad bellum.1 Jus ad bellum provides the legal basis by which a state may legitimately use military force in the international context.2 The doctrine of jus ad bellum is by implication, contained in the UN Charter, Article 51 and sets the parameters by which a state may justifiably use military force against another state.3 Recent developments with respect to terrorism have challenged the scope and range of Article 51 since, terrorists are not typically acting for or on behalf of a state.4 In order to determine whether or not the state has a right to use self-defence against a non-state actor under contemporary international law, the theory of jus ad bellum within the context of the UN Charter, Article 51 will have to examined. This paper will argue that the principle characteristics of the theory of jus ad bellum and Article 51, although design to control hostilities between states, can be interpreted to permit the use of military force in self-defence against non-state actors. Jus ad bellum The theory jus ad bellum is a evolved from Western cultures as a guide for reconciling “right with might” or “sollen with sein.”5 The primary objective of the doctrine of jus ad bellum was to cultivate a concept that military force was only justified in response to unprovoked aggression. Likewise, military force could be legitimately used for the purpose of restoring order or correcting a violated right. Military force could also be used legitimately for punitive reason.6 Taken together as a whole, the theory of jus ad bellum dictates generally that military force could legitimately be used for humanitarian intervention and for protection of sovereignty. After the Second World War, the United Nations was formed by virtue of the UN Charter which ultimately re-introduced and reconstructed the ambit of jus ad bellum.7 The primary purpose of the UN was to prevent war among the nations of the world.8 Following the 1990s Kosovo conflict International Commission on Intervention and State Sovereignty modified the UN Charter setting restraints for the exceptions to the UN’s policy on permissible military force between states under the auspices of jus ad bellum. Under the UN Charter the contemporary concept of just war of jus ad bellum dictates merely that war can no longer be justified on the grounds of humanitarian intervention, but for purposes of self defence.9 The UN Charter The UN Charter was implemented on October 24, 1946 and as previously stated it has as its primary goal the prevention of wars, having learned from the devastation that followed the two World Wars. The preamble to the UN Charter is indicative of this goal and reads as follows: “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples..”10 Fortifying the UN’s purpose and intent, Article 2(4) of the UN Charter provides as follows: “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”.11 However, Article 51 provides its respective Member States with the residual right to unilaterally resort to military force in the event of unwarranted invasion. Article 51 provides as follows: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.12 The International Commission on Intervention and State Sovereignty formulated and published guidelines calculated to reflect the concept of just war or the theory of jus ad bellum within the scope and range of Article 51 of the UN Charter. In general the International Commission on Intervention and State Sovereignty provides guidelines for the interpretation and application of Article 51 and specifies when the general ban on war may be departed from. The permitted departure from the UN’s policy against war can be summarized as follows: A member state may have just cause to use military force when the integrity and protection of its borders and political cohesion are compromised.13 Similarly, a member state will have just cause in circumstances where military force is necessary for the defence of others who are subjected to violent and oppressive political rule.14 An intervening member state must specifically intend that the military occupation of another state is purely on the basis of just cause.15 An intervening member state is required to have prior and proper authority and only intervene after public notification.16 Put another way, an intervening state may only use military force against another state under the mandate of proper authorities within the intervening state and only after that decision is published with clear and unambiguous reasons for military intervention.17 Moreover, military intervention must in all circumstances be the last resort action. In other words, unless all other humanitarian and peaceful efforts have been tried and ultimately failed can military intervention be justified under Article 51.18 The intervening state is required to be assured of success prior to using military force and must not engage military force if such action would be futile.19 The intervening state may only use military force if it is proportionate to the resolution sought and should be able to provide proof of proportionality.20 The International Commission on Intervention and State Sovereignty maintains that the intervening state is required to weight the “universal goods” against the “universal evils” in determining the likely outcome of the military intervention.21 Proportionality was defined by the International Court of Justice in the Oil Platforms Case (Merits) (Iran v US) (2003). Proportionality: “requires that any self-defensive measures should be quantified by the scale of the unlawful act which provoked it”.22 The commission explained the restrictions were entirely necessary so as to avoid leaving too much to interpretation so that world peace would not be compromised on a whim.23 Be that as it may, it is possible to make a case within the ambit of the Commissions provisos to Article 51 for the use of military force as a means of self-defence against non-state actors. As Printer argues, the protections and privileges afforded states under the UN Charter do not apply to non-state actors who commit heinous crimes against states.24 It can be argued that the underlying objective of the UN Charter together with the Commission’s guidelines is to ensure universal approval in extreme cases. For instance, the Commission permits military action for the protection of a state’s borders. That proviso alone is broad enough to permit military action in the form of self-defence against non-state actors. In today’s world, non-state actors are typically associated with terrorists attacks25 and the UN has left the door open for member states to use military force as a means of self-defence in what amounts to anticipatory self-defence. In fact the UN has taken the position that a member state may invoke Article 51 in respect of: “armed countermeasures, in accordance with international law and UN practice against any territory harbouring, supporting or tolerating activities that culminate in, or are likely to give rise to, insurgent infiltrations or terrorist attack..”26 By taking this position the UN indorses the US attack on Afghanistan although Trapp argues that practices following the September 11 terrorist attacks only permits self-defence measures under Article 51 on terrorists cells in foreign territory.27 This is not necessarily so. When the United States engaged in military conflict with Afghanistan following the September 11 terrorist attacks on the US, the UN can be said to have altered the meaning of self-defence so as to allow the use of military force on countries that can be said to knowingly permit non-state actors such as terrorist to plan and prepare terrorist attacks within their borders. In the aftermath of September 11, the United Nations’ Security Council Resolution 1368 (2001) and 1373 (2001) maintained that when a country enables the financing and plotting of terrorist activities that country is violating international law, and as such the impacted state make invoke the right of self-defence under Article 51 and thereby resort to military action.28 In raising the bar, following a conference at Chatham House, London, the UN Convention against Corruption was implemented on December 14, 2005. Under the UN Convention against Corruption the Chatham House principles were formulated, dictating that: “It may be that the State is not responsible for the acts of the terrorists, but it is responsible for any failure to take reasonable steps to prevent the use of its territory as a base for attacks on other States. Its inability to discharge the duty does not relieve it of the duty. The right to use force in self-defence is an inherent right and not dependent upon any prior breach of international law by the State in the territory of which defensive force is used”.29 Pre-emptive military measures against non-state actors, however is entirely outside of the jus ad bellum ambit of Article 51 unless the threat is imminent .30 Under international law there is a distinction between: “pre-emptive (or aniticipatory) self-defence as a self-defence against imminent threats and preventative use of force as a reaction to threats which are not imminent.”31 The national security policy adapted by the United States is contrary to traditional international law with respect to the permissible use of military force as a pre-emptive measure against attacks by non-state actors as well as states. As Krajewski explains: “...the approach suggested by the (US) National Security Strategy should be labelled preventative self-defence, because it clearly seeks to extend the boundaries of self-defence beyond the reaction to imminent threats. The goal of the new National Security Strategy is not to pre-empt specific, immediate threats, but to prevent generalised threats from materializing.”32 Prevention of generalized threats stretches the ambit of Article 51 too far and leaves open the possibility of the use of military force outside of the principle of proportionality.33 Franck argues that he concept of self defence has been tested over the years so that it is settled law that Article 51 can be invoked in circumstances where an attack is looming. In circumstances where an attack is looking a Member State has a just cause under the auspices of “anticipatory self defence.”34 But as Franck cautions, it requires a delicate balancing act in attempting to draw distinctions between what amounts to just cause and what amounts to unwarranted aggression. Franck goes on to explain that it would be entirely lawless for a state to be expected to sit around and wait for an attack. However, Franck adds: “On the other hand, , if you have a law which says that any country that feels threatened is free to attack any country from which it feels the threat is emanating, and then you don’t have a law at all”.35 It therefore follows that in the event a state faces an imminent threat from non-state actors, the state will be justified in taking pre-emptive military action. In today’s world, there is no reason why terrorist activities and the real fear and threat of an imminent terrorist attack cannot qualify as belligerent “military activities” within the scope and range of Article 51.36 As Shah argues, terrorism is a serious threat today, however, it must be countered within the strict confines of international law.37 Conclusion Considering that the United Nations had taken a particularly strict stance against military force in the initial stages of the UN Charter, it has come a long way in the wake of the September 11 attacks. It has extended the scope and range of self-defence within the doctrine of jus ad bellum so that states may defend their borders against non-state actors. However, some measure of caution is required in extending the self-defence exceptions contained in Article 51 so as to prevent unwarranted aggression. Bibliography Elshtain, J.B. The just war theory, Cambridge, Mass.: Oxford University Press, 1992. Franck, T. “Terrorism and the Right of Self-Defence”, (2001) 95 American Journal of International Law 839-843. Gazzini, Tarcisio. “A Response to Amos Guiora: Pre-Emptive Self-Defence Against Non-State Actors?” (2008) 13(25) Journal of conflict and Security Law. 25. Gray, C. International Law and the Use of Force. Oxford University Press, 3rd Edition, 2008. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, International Development Centre, Canada, December 2001 also available online at: ‹http://www.icissciise.gc.ca/report-e.asp› Retrieved January 27, 2009. Krajewski, Markus. “Preventative Use of Force and Military Actions against Non-State Actors: Revisting the Right of Self-defence in Insecure Times.” Available online at: http://74.125.47.132/search?q=cache:Jr4XvGq0CYIJ:www.uni-potsdam.de/jpkrajewski/Publications/PreventiveUse.pdf+Krajewski,+Markus.+Preventative+Use+of+Force+and+Military+Actions+against+Non-State+Actors:+Revisting+the+Right+of+Self-defence+in+Insecure+Times.&hl=en&ct=clnk&cd=1&gl=us Retrieved January 27, 2009. Kunz, Josef, L. “Sanctions in International Law”. (April 1960) 54(2) The American Journal of International Law, 324-347. Oil Platforms Case (Merits) (Iran v US) (2003) cited in Kritsiotis, D. “Arguments of Mass Confusion”. (2004) 15 European Journal of International Law 233. Printer, N. G. “The Use of Force Against Non-State Actors Under International Law: An Analysis of the US Predator Strike in Yemen.” (2003) 8 UCLA Joural of International Law and Foreign Affairs, 331-383. Ratner, Steven. “Jus ad Bellum and Jus in Bello After September 11.” (2002) 96 American Journal of International Law, 905-921. Shah, Niaz, A. “Self-defence, Anticipatory Self-defence and Pre-emption: International Law’s Response to Terrorism.” (2007) Journal of Conflict and Security Law, 95-126. Stone, J. The province and function of law, Cambridge, Mass.: Harvard University Press 1987. Trapp, Kimberley. “Back to Basics: Necessity, Proportionality, and the Right of Self-Defence Against Non-State Terrorist Actors.” (2007) 56(1) International and Comparative Law Quarterly, 141. UN Charter. United Nations’ Security Council Resolution 1368 (2001) and 1373 (2001) (n.d.) Available online at: http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement Retrieved 27 January 2009. Wilmshurst, Elizabeth ‘The Chatham House Principles of International Law on the Use of Force in Self-Defence’, (2006) 55 International and Comparative Law Quarterly , 963-972. Read More