TRADITIONAL USE OF FORCE LAW

DOCTRINEProf David K. Linnan

USC LAW # 783

Unit Ten

HISTORICAL VIEWMedieval- “just war doctrine” & outside religious community

(Crusades) 

[Off the record]

Enlightenment- “natural law doctrine” leaking over, sovereignty connection

 [Off the record]

19th century- “state of war” positivism 

[Off the record]

20th century – “aggression” & lawful use of force approach develops

100 YEARS DOCTRINE DEVELOPMENT I

QUICK DOCTRINE OVERVIEW

1900 Older law, use of force okay in peace & wartime, regulation of neutral versus belligerent status, legal concept of “war” (ultimate dispute resolution)

1919 League Charter focused on WW I problems (Germany invading neutral Belgium, etc.), attempt to restrain via Great Powers Council, retained “war” but wanted to legalize & link to peaceful dispute resolution

100 YEARS DOCTRINE DEVELOPMENT II

QUICK DOCTRINE OVERVIEW (CONT’D)

1920-1945 Failure of League, WW II, followed by Nuremburg & Tokyo Tribunals re customary law outlawing of aggressive war & crimes against humanity, idea shifts now to use of force rather than “war” status, self-defense develops in modern setting as technical concept alongside “aggression” aka aggressive war (e.g., for territorial acquisition)

100 YEARS DOCTRINE DEVELOPMENT III

QUICK DOCTRINE OVERVIEW (CONT’D)

1945-1980s UN Charter system revamped League Covenant with political system in Security Council (quickly deadlocked by Cold War) but in which most use of force law developed on the self-defense side & under collective assistance pacts (e.g., NATO & Warsaw Pact), plus sponsored insurgencies raising indirect aggression issues, further development along lines of use of force law, legalization of self-defense in opposition to “aggression,” arguments about use of force against 3-P states absent armed attack under indirect aggression versus intervention analysis via sponsored insurgencies, occasional peace-keeping via UN blue helmets usually with local & Security Council consent

100 YEARS DOCTRINE DEVELOPMENT IV

QUICK DOCTRINE OVERVIEW (CONT’D)

1990s-date Circa ten years with original UN System arguably reviving then seeming lapse, but newer issues of state break-up including ethnic conflicts (former Yugoslavia), humanitarian intervention claims, plus failed states with peace-keeping vs. peace-making (Somalia), now anti-terrorism with arguments about preemptive war, disputes over internationalization under ICC

19TH CENTURY VIEW19th century law’s structure (jus belli ac pacis, could go towar for any reason or no reason as a matter of sovereignty

since Grotius, essentially as a dispute resolutionmechanism) 

Law of War (encompassing belligerents & neutrals) 

Law of Peace (older broader ideas of self preservation, economic too, including tradition of self-help andarmed force as “measures short of war”)

[Off the record]

HUMANIZING WARBackground of peaceful dispute settlement attempts starting in

19th century (neutral nationality commissions of inquiry, etc. to avoid jingoism & accidental war)

Humanizing war (under jus in bello or conduct of war)1856 Declaration of Paris (rights of neutral shipping)1860 Lieber Code (General Order 100 of Union Army in

Civil War)1868 St. Petersburg Declaration on Exploding Projectiles1899 First Hague Conventions (rules of warfare)1907 Second Hague Conventions (rules of warfare)

  Limiting war (under jus ad bellum or going to war)late 19th century pacifism tying into peaceful settlement attempts, linked with trying to eliminate “aggressive war”)

LEAGUE COVENANTLeague of Nations Covenant (1919)

Comes out of President Wilson’s efforts at Versailles, but US never ratifies treaty due to fear of “foreign entanglements”

 Article 10 contains modern territorial integrity & political

independence language still followed in UN Charter Article 2(4) (problem of

Belgium in WWI)

League Covenant, however, still focused on older “war” concept in terms of legal concept

Voluntary enforcement problem led to 1930s collapse after Japanese in Manchuria (China) & Italians in

Abbyssinia (Ethiopia)

KELLOGG-BRIAND PACTKellogg-Briand Pact (1928)

US participation 

Still talks of “war,” but considered opinion is that it reaches all unlawful force

 “Self-defense” as key concept not in the treaty, but

its existence characterized as inherent in note exchanges (conceptual tie to

sovereignty)

UN CHARTERUN Charter (1945)

Understand as drafted against background of failed League of Nations collective security system and “aggressive war” customary law articulated in parallel at Nuremburg & Tokyo war trials (1946)Article 2 (1) sovereign equality conceptArticle 2(3) peaceful resolution of disputesArticle 2(4) apparent bar of force against “territorial

integrity or political independence” of member states

  Article 51 self-defense pending Security Council action

REMAKING OLDER LAW

Issue of how collective security to work, structurally abandons older belligerent & neutral categories in favor of “aggressor” & “others”

How does this raise implicit questions re duties vis-à-vis opposing aggression?

UN SECURITY COUNCILUN Security Council

Structural version of great powers acting together but with veto (problem of not wishing to be forced to act)

Cold War deadlock

Self-defense under Article 51 co-exists with caveat that Security Council can shut it down (but arguments about “inherent” nature still)

Security Council can force (legally) UN members to cooperate in departure from League of Nations (mandatory Chapter VII language)

SELF-DEFENSE VIEWSSELF-DEFENSE DIFFERING VIEWS

US sees customary law surviving (Caroline 1837, “necessity of self defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation” plus proportionality)

Socialist & others employs literalist focus reading UN Charter Article 51 as only exception to seemingly absolute Article 2(4) language (aggression definition tie)

Continental legal science in Draft Code on State Responsibility (ILC) follows new doctrinal construct of self-defense & necessity, linked to dualistic ideas of state law (competing with older precedents as Caroline, now recharacterized as necessity in conjunction with which force is not permitted under modern law principles) Interpretive style, text versus legislative history?

ICJ TREATMENTSICJ Cases

Corfu Channel Case, limitation on strict Article 2(4) reading

Nicaragua Case, politically charged addressing indirect aggression, but literalist focus

 Since 1980s, Persian Gulf cases filed but settled

or inconclusive (Iran Flight 655, Oil Platforms, etc)

PROPORTIONALITYProportionality

Under self-defense, part of American views but not Socialist views (view of not “favoring” aggressors)

Dispute regarding proportionality’s application to UN-sponsored force under Security Council resolutions

 Scale of force problem (issue in Kuwait crisis whether to

drive Iraqis only out of Kuwait, or invade Iraq too, or use of atomic weapons at end of WWII by US to avoid estimated 500,000 casualties invading Japanese home islands)

UN SYSTEM EVOLUTION

Force Within UN System as Opposed to Under Self-defense

Original system of Security Council forces under Articles 42 & 43 Cold War casualty (including Military Staff Commission)

US view that since Article 43 agreements never existed, no “duty” to provide milittary forces

Smaller states prefer view since Security Council has no forces of its own, authorizes use of force and requires members states to support it either under best efforts reasoning or at extreme requiring provision of troops following “criminalization” of aggression as under Draft Code on State Responsibility

USE OF FORCEForce Within UN System as Opposed to Under Self-defense(Cont’d)

There is a basic structural issue in the Security Council and competing desires for large states to keep responses to the unlawful use of force a political process, while smaller states typically desire mandatory rules.

Why the difference of opinion between different classes or groups of states?

Is the reason the same that some states might give for forcing all use of force questions into the Security Council (e.g., trying to limit self-defense as a legal doctrine under int’l law)?

1990s NON-COMPLIANCENon-compliance Issues with Security Council Resolutions in early

1990s Kuwait Crisis

Problematic view neutrality may still be legal option

Problems like Jordan in early 1990s Kuwait crisis announcing that all foreign aircraft would be excluded (despite SC resolution)

Problems of impermissible support by states after war broke out in dispersal of Iraqi planes overseas in early 1990s, e.g. in Iran

Feared terrorism attacks in early 1990s by extremist groups in Kuwait crisis (e.g., streets of foreign cities will run with blood if Iraq invaded, issue chiefly with PLO as state in utero supporting Iraq)

SCOPE OF HELPIssues Re Scope of Help Required by

States Not Fighting in Kuwait Crisis

Financial help (Japan’s perennial claim cannot commit troops under post-WWII constitution), whether mandatory, and how much is enough

KUWAIT/IRAQ/AFGHANISTAN

WHAT IS DIFFERENT OR THE SAME IN 2003 IN IRAQ OR AFGHANISTAN AS OPPOSED TO FIRST GULF CRISIS IN 1991 ON THE SIDE OF USE OF FORCE LAW?

US vs European vs Islamic vs whatever views?

[Off the record: First Gulf Crisis/Kuwait]

[Off the record: Iraq & Afghanistan] [Do you agree?] [Do you agree?]

DEJA VUWHAT WERE THE

CONCERNS VISIBLE IN US LEAGUE COVENANT DEBATES (1919)?

Concerns about world executive

Foreign entanglements

Constitutional questions (WPA & UN System issues now)

Expense of war for insignificant country

What is common stake in idea of stamping out aggression?

HOW MUCH HAS CHANGED?HAVE CONCERNS REALLY CHANGED SINCE 1949?

How do big versus small states feel about UN system versus traditional self-defense & collective self-defense alliance (e.g., NATO)?

How do developed versus developing countries feel about the UN system versus traditional self-defense & collective self-defense alliance (e.g., NATO)?

How do such concerns relate to civil wars, ethnic conflicts & recognizing new states (eg, former Yugoslavia), and what about terrorism and indirect aggression issues buried?

What is the place of UN peace-keeping in all of this?

[Do you agree?] [Do you agree?] [Do you agree?]