This is a final exam. I would like somebody to write 5 pages for each question following the instructions below. Your answers should be from your own words after reading the course readings I have attached.
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unit_9.docxUnit Learning Objectives
After reading this unit, you will:
· Understand how the UN Charter attempts to translate historical notions of 'just war' into legal principles regarding when the use of force is legally justified by distinguishing between 'offensive' and 'defensive' uses of force
· Be able to identify and assess the institutional mechanisms and procedures within the UN that attempt to translate the theory of collective security into a system for enforcing peace and security
· Be able to discuss critically contemporary debates over whether military force could or should be used to stop or prevent egregious human rights abuses.
Unit Plan and Summary
This unit discusses one of the thorniest sets of issues in contemporary international law, which revolve around the following questions: when is the use of force morally and legally justified (jus ad bellum), who/what has the legal authority to use force and what type/level of force? We begin with a brief overview of historical doctrines of 'just war' and examine the evolution of international legal rules regarding the use of force. We then examine the UN Charter, which is the most authoritative statement of principles on the use of force in contemporary international law, focusing on the relationship between 'aggression' and 'self-defense'. The unit then proceeds to examine the measures developed by the UN for regulating the use of force ('enforcement' and 'peacekeeping'). We conclude with a discussion of whether using force for humanitarian purposes ('humanitarian intervention') is legally justified in contemporary international law.
Outline
1. The Just Use of Force ('Just War'– Jus ad Bellum & Jus in Bello)
2. The UN Charter: Aggression and Self Defense
3. The UN Charter: Enforcement & Peacekeeping
4. Humanitarian Intervention
Readings
· von Glahn, Gerhard, and Taulbee, James Larry. “ The Use of Force .” In Law Among Nations: An Introduction to Public International Law, 576-611. 10th ed. Upper Saddles Rivers, NJ: Pearson Education, 2013.
Readings for Briefs
· Franck, Thomas M. “ What Happens Now? The United Nations After Iraq .” American Journal of International Affairs 97, no. 3 (2003): 607–620.
· S. MacFarlane, Neil, Thielking, Carolin J, and Weiss, Thomas G. “ The Responsibility to Protect: Is Anyone Interested in Humanitarian Intervention? ” Third World Quarterly 25, no. 5 (2004): 977–992. doi:http://dx.doi.org/10.1080/0143659042000232063.
· Macklem, Patrick. “ Humanitarian Intervention and the Distribution of Sovereignty in International Law .” Ethics & International Affairs 22, no. 4 (2008): 369–393. doi:http://dx.doi.org/10.1111/j.1747-7093.2008.00172.x.
Key Concepts
· Just War (Jus ad Bellum & Jus in Bello)
· Aggression
· Offensive & Defensive Use of Force
· Classical Balance of Power
· Concert of Europe
· Enforcement
· Enemy States
· Peacekeeping
· Colonialism
· Self-defense
· Retorsions & Reprisals
· Anticipatory, Preventative & Pre-emptive Self-defense
· Necessity
· Imminence & Salience
· Proportionality
· Collective Security
· Human Security
· Responsibility to Protect
· Humanitarian Intervention
· Territorial Covenant
· Uniting for Peace Resolution
The 'just' Use of Force In Historical Context
From earliest period of human civilization, debate has raged about 'just' and 'unjust' wars, and this debate occupied much of the subject matter of international law during its formative years. The central questions here are:
1. Can the use of force be morally just (Jus ad Bellum – just cause of war)?
2. Can wars be fought justly (Jus in Bello – just conduct of war)?
Our focus in this unit is on Jus ad Bellum. We shall discuss Jus in Bello in Unit 10.
Several 'just causes' of the use of force have been offered over the centuries. Some of the most prominent include the following. The use of force is just if it is:
1. in self-defense
2. ordained by God
3. to protect the weak from harm
4. to defend one's honour
5. to correct a past wrong
6. to collect unpaid debts
Question:
Take a moment to reflect on these moral justifications for the use of force. Which of them do you think are still relevant in contemporary international law?
The classical writers on international law, such as Hugo Grotious (1583-1645), were preoccupied with just war doctrines. However, from the 17th to the early 20th century wars by the major European states were fought primarily based on perceived national interest with few, if any, rules of international law available to regulate these wars. We can identify three phases in the development of rules of international law regarding the just and legal use of force: pre-WWI; the interwar period; and post-WWII.
Pre-WWI: The Classical Balance of Power & the Concert (18th to early 20th century)
The main mechanism for regulating the use of force during this period was the European Classical Balance of Power. Under this system, wars were a legitimate instrument of statecraft designed to 'maintain'/'restore' a rough equilibrium in the distribution of power among the major European states. At the Congress of Vienna (1814-1815), the victorious powers instituted the Concert of Europe with norms specifically designed to regulate how the balance of power operated in opposition to the practices of Revolutionary France. The aim of the Concert was not to eliminate all wars. Instead, wars were permissible if they had limited objectives and if they did not threaten the status and interests of the great powers. All territorial changes were subject to the approval of the great powers; their vital interests were to be protected; and they were not to be humiliated or challenged. The concert system regarded violence outside the framework of great power relations as acceptable. Colonial conquest outside Europe was also accepted and even small states within Europe such as Poland were not protected. 1
The classical Balance of Power and Concert were thus closely linked to European colonial expansion and domination from the eighteenth to early 20th centuries. A number of norms legitimized and sustained this colonial order including:
1. The Racialized Bifurcation of the World: From the perspective of European colonialists, the world was divided into two classes of states and peoples – 'civilized' and 'uncivilized'. International law applied only to 'civilized' states, which were the European states and 'settler' colonies populated by people of European descent. All others (in Africa, Asia and the Americas) were 'uncivilized'. Colonialism was morally justified in terms of the 'white man's burden' – i.e. a duty to bring European 'civilization' to the 'uncivilized' peoples of these regions.
2. The Permissibility of Territorial Acquisition by Force and Alien Rule: European colonialism occurred before the UN Charter and the era in which the principle of self-determination (discussed in Unit 11) became a tenet of world politics. One of the key mechanisms of equilibration in the classical BOP was the principle of 'territorial compensation'. Here, European states used control over territory, first in Europe (e.g. by dividing small countries in Eastern Europe such as Poland) then outside Europe as bargaining chips. For example, in 1884-85, the Berlin Conference was held in which European states met to divide the African continent amongst them.
Special treaties supplemented the Classical Balance of Power and Concert System in Europe, which designed rules to deal with specific cases. For example, in 1899 and 1907 we had the first and second Hague Conventions on the Laws of War, which attempted to prohibit certain kinds of warfare (e.g. the use of force to recover debts).
Interwar period (1918-1939)
This period saw the adoption of the third Hague Convention in 1922, which required that a formal declaration of war or an ultimatum containing a conditional declaration of war precede the outbreak of hostilities. As we note in Unit 10, this requirement is not widely practiced. Also during this period, new rules were devised to deal with a new type warfare – air warfare.
The first comprehensive attempt to devise rules of war was the Covenant of the League of Nations. The League was established in 1919 and became defunct when WWII began in 1939. The League Covenant did not prohibit war. Instead, article 12 of its Covenant established a three-month waiting period during which disputing parties were to submit the dispute to arbitration or judicial settlement.
A series of conventions on war were adopted under the League's auspices including:
1. Protocol on the Use of Poison Gas (1925)
2. General Treaty for the Renunciation of War (1928), also known as the Kellog-Briand Pact or Pact of Paris. This was an attempt to outlaw war. Almost all states at that time (including Germany) were parties to the treaty. Signatories to the treaty were required to renounce war as an instrument of national policy. They also agreed to settle disputes peacefully. The treaty was not very successful in preventing WWII.
3. Convention on the Treatment of Sick and Wounded Prisoners of War (1929)
Post–WWII: The UN Charter
The bulk of the contemporary rules of war developed out of the horrors of WWII. A series of treaties and conventions dealing with the use of force were adopted after WWII including the UN Charter (1945), the 1949 Geneva Conventions and the 1977 additional protocols to the Geneva Conventions. Our focus in this unit is on the UN Charter. We examine the Geneva Conventions in Unit 10.
The UN Charter: Aggression & Self-defence
The UN Charter does not outlaw the use of force. What it does do is draw a distinction between offensive and defensive uses of force, and outlaws particular instances of the former. The key principles governing the use of force in the Charter are found in articles 2(4), 2(7), and 51.
A strict interpretation of these key principles reveals that force can only be legally justified under the UN Charter if it is:
1. Authorized by the UN Security Council
2. In self-defence
Let us examine the key articles of the UN Charter in some detail to see why this is the case.
Article 2(4):
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
Article 2(4), also known as the 'norm against aggression', is of universal applicability and is widely regarding as enjoying the status of a jus cogens rule." 2 However, what exactly does article 2(4) mean? There are three sources of ambiguity:
1. The first centres on the phrase "threat/use of force". Article 2(4) does not explicitly use the terms 'armed force' or 'armed attack', which are explicitly mentioned elsewhere in the UN Charter (e.g. articles 41, 46 and 51). However, it is widely accepted that the word "force" in article 2(4) does mean armed violence. Indeed, the vague word 'force' was deliberately used to encompass different kinds of violent armed conflicts.
2. The second source of ambiguity centres on the phrase "territorial integrity and political independence". Does this mean that any use of force that does not involve permanently changing a state's territory or changing its government is legal?
3. The third source of ambiguity arises from the phrase "or in any manner inconsistent with the purposes of the UN." Does this mean that the use of force is permissible if it is consistent with the purposes of the UN?
Our focus in sections 2.2 to 2.6 is on the first source of ambiguity. We shall discuss the second and third ambiguities in sections 2.7 and section 4 respectively.
Understanding "the use of force" in Article 2(4)
The key to understanding article 2(4) is the distinction between offensive and defensive uses of force, derived from the just war notion that the use of force is morally just when used in self-defence. Thus, article 2(4) must be read in conjunction with Article 2(7) on non-intervention and article 51 on the right to self-defence. 3
Article 2(7):
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter 7.
Article 2(7), also known as the 'norm against intervention', prohibits UN members from intervening into other states' domestic jurisdiction, particularly if that intervention entails the use of force. The only exception is the 'enforcement measures' of the UN Security Council, which under certain conditions, is the only body that can override a state's domestic jurisdiction and intervene (with force if necessary).
Article 51:
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…
Whereas article 2(4) prohibits offensive use of force and article 2(7) prohibits (forceful) intervention, article 51 permits the use of force in self-defence against an 'armed attack'. However, the distinction between illegal offensive and legal defensive uses of force is not clear-cut in practice; neither is it clear what type or level of force is permissible. Let us examine each in turn.
The Definition of 'Aggression'
The UN Charter uses the term aggression to describe the illegal offensive use of force and distinguish it from legal self-defence. To understand how the UN Charter defines aggression we need to refer to other key articles in the Charter, specifically articles 1(1) and 1(2) that state the UN's key purposes:
Article 1(1):
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace
Article 1(2):
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace
When these purposes are read together with articles 2(4) and 2(7), it becomes clearer that the UN Charter identifies 'aggression' as occurring when one state intervenes with military force into the 'domestic jurisdiction' of another state thereby violating the 'territorial integrity', 'political independence', and hence the 'self-determination' of the latter (we discuss self-determination in Unit 11). The UN Charter thus embodies a reasonably clear understanding of what 'peace' entails: peace is the absence of aggression maintained by preserving the political and territorial status quo. Articles 1(2) on self-determination, 2(4) on non-aggression, and 2(7) on non-intervention together with Article 1(2) on sovereign equality thus establish the 'territorial covenant' of sovereignty the UN Charter aims to protect. 4
Three UN General Assembly (UNGA) resolutions have sought to reaffirm this territorial covenant and clarify the meaning of aggression in the UN Charter:
1. UNGA Res 2131 (1965) 'Declaration on the Inadmissibility of Intervention in the Domestic Jurisdiction of States:' No state shall organize, assist, foment, finance, initiate or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the government of another state or interfere in civil strife in another state.
2. UNGA Res 2625 (1970) 'Declaration of Principles…Concerning Friendly Relations and Cooperation among States:' No state or groups of states has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal affairs of other states.
3. UNGA Res 3314 (1974) 'The Definition of Aggression': Aggression is the use of force against the sovereignty, territorial integrity and political independence of another state... no consideration whatsoever, political, economic or otherwise, may serve as justification for aggression.
These resolutions also seek to clarify that the UN Charter's provisions apply not only to 'international war' (wars between two or more states) but also to 'non-international' or 'civil' wars. They imply that it is illegal to provide assistance aside from humanitarian relief to any side (even the government side) in a civil war; and that assistance to the recognized government is legal only up the point that the civil conflict becomes a war (when open fighting breaks out).
Despite these efforts at clarification, the precise meaning of 'aggression' continues to be elusive in contemporary international law. Indeed, so elusive is its meaning that the UN Security Council has never used the term 'aggression'. In addition, the International Criminal Court (ICC), which we examine in unit 10, although it has the jurisdiction to do so, has refused to hear any cases involving 'crimes against peace' (i.e. waging a war of aggression) until such time that the definition of aggression is clarified.
Self-defence
Like 'aggression', the exact meaning of self-defence has also been subject to debate. Article 51 grants states the right to use force in self-defence if they are subjected to an armed attack. However, it is not clear exactly what constitutes an 'armed attack' and how much and what type of force can be used in response to such an attack. Does it mean a state must wait until it is actually being invaded and attacked in its territory by another state before it can exercise its right to self-defence? Alternatively, can a state take actions to anticipate, prevent or 'pre-empt' an attack before it occurs?
Let us examine two examples to illustrate:
1. In 1981, Israel bombed Iraq's nuclear reactors. Israel justified its actions by arguing it was in self-defense because Iraq's plants were on the verge of producing nuclear weapons.
2. In 1984, the USA mined the main harbour in Nicaragua. The left-wing Sandinista government in Nicaragua was fighting an insurgency by right-wing 'Contra' rebels supported by the USA. The US justified its actions and its assistance to Contra rebels in Nicaragua by arguing that Nicaragua was arming rebels in El Salvador. Thus by arming rebels in Nicaragua and preventing arms shipments, the US was assisting El Salvador in 'collective' self-defense.
The response to these two incidents did not lend support to an expanded notion of self-defense:
1. In case of Israel in 1981, the UN Security Council unanimously condemned Israel's bombing of Iraq's nuclear plants. The reason given was that there was no evidence that there were indeed nuclear weapons at the plant. This raises several questions: Would Israel's actions have been legal if there were nuclear weapons? Even if there were nuclear weapons, was there evidence that Iraq intended to use them against Israel?
2. In the Nicaragua v. USA case (1984), the International Court of Justice (ICJ) ruled in favour of Nicaragua. The court ruled that the USA's mining of Nicaragua's ports was a violation of art 2(4) and that the actions of the USA did not constitute self-defence under article 51. The Court noted that the right to 'individual or collective' self-defence in article 51 applied only if an armed attack occurred and there was no evidence that Nicaragua's assistance to El Salvador involved an armed attack. However, one of the judges wrote a Dissenting Opinion that rejected a narrow reading of article 51 that the right of self-defence applies "if, and only if, an armed attack occurs." 5 If article 51 is only applicable in the event of an armed attack that violates the political independence or territorial integrity of a State then article 51 makes no sense (i.e., the right to self-defence is obvious).
The 'Bush Doctrine' and the 2003 US Invasion of Iraq
The debate over an expanded interpretation of self-defence to include so-called 'pre-emptive' self-defence intensified after the USA invaded Iraq in 2003. In September 2002, the government of US President George W. Bush adopted a new National Security Strategy (NSS) in the wake of the September 11, 2001 terrorist attacks in New York and Washington DC. This NSS, which also became known as the 'Bush Doctrine', argued that the challenges posed by transnational terrorism and the threat Weapons of Mass Destruction (WMD) proliferation necessitated a broadening of self-defence to include pre-emptive actions in advance of a first use of force by an enemy. 6
The Bush Administration outlined the following legal justifications for its pre-emptive invasion of Iraq in 2003.
1. Necessity: Because international law binds states, they must prove a 'grave peril' as a reason for violating international customs and treaty law, better understood as a 'plea for necessity.' According to the International Law Commission, for necessity to apply, "it must be impossible for the peril to be averted by any other means, even one which is much more onerous but which can be adopted without a breach of international obligations." 7 Further, necessity cannot be invoked if the state by its own action contributed to creating the peril.
2. Imminence: The notion of imminence focuses on the temporal proximity of a threat (how soon/quickly will it occur?). An imminent threat must also have a high probability of occurring.
3. Salience: This draws attention to the magnitude of the harm posed by the imminent threat and its relevance. 8
The USA thus claimed that its actions against Iraq were 'necessary' because Iraq posed a grave peril that could not be averted through any other means, and because Iraq possessed nuclear weapons that could be fired at the USA at relatively short notice (salience and imminence). These claims were not widely accepted at the time and were subsequently shown to be inaccurate.
To date, the debate over an expanded interpretation of self-defense remains unresolved. The notions of 'imminence', 'salience,' and 'necessity' tend to depend on the perceptions of threat by the states involved.
What type/level of force? Retorsions and Reprisals
The second main source of ambiguity (in addition to clarifying aggression and self-defence) centres on specifying what types and levels of force are permissible. The key question here is whether force is permissible if it does not threaten 'political independence and territorial integrity'. Under certain circumstances the answer is 'yes'.
For example, we noted in Unit 5 that under the Abatement Theory, when conditions in state A deteriorate and there is a trans-border spillover that adversely affects state B, State B has a right to intervene (with force if necessary) to restore order. The use of force by state B to abate harm caused by state A is a legal form of self-defence recognized by customary norms. However, the intervention is only lawful under two conditions:
1. State B has no long-term territorial or political ambitions in State A (so as not to violate article 2(4)
2. The use of force in self-defence must be in proportion to the original offence and to the (military) objectives sought, and carried out in such a way as not to cause undue harm to civilian populations. We discuss this proportionality principle in detail in unit 10.
Varying types of unfriendly actions including levels of force may be applied in self-defence or in retaliation for a prior offence within two additional contexts: Retorsions and Reprisals.
A retorsion is a legal but unfriendly act (not including armed force) directed by one government against another in retaliation for an equally unfriendly but lawful act. A retorsion is designed to compel the offending state to change its unfriendly acts. Examples of retorsions include acts of 'coercive diplomacy' – severing diplomatic relations, imposing trade restrictions (import quotas or tariffs), and imposing travel restrictions.
A reprisal, unlike a retorsion, entails the use of coercive measures (just short of overt armed force) by one government against another in retaliation for the latter's alleged unlawful acts. A reprisal that does not involve the use of force is generally considered legal. Examples include freezing or seizing assets of the offending state. Some reprisals, however, that do involve the use of force are sometimes justified as self-defence. For example, in 1986, the USA bombed Libya in retaliation for Libyan leader Quadaffi's alleged complicity in terrorist attacks against the USA. These kinds of reprisals that do employ force are widely considered violations of article 2(4) and as not constituting valid grounds for invoking self-defence under article 51.
The UN Charter: Enforcement & Peacekeeping
The UN Charter also institutionalized a system of 'Enforcement', based on the theory of 'Collective Security', which the Charter's drafters hoped would be more effective than that of the defunct League of Nations in preventing aggression. The League of Nations was the first attempt to institutionalize collective security, and although it had some early successes resolving disputes, the real test of the League came in the 1930s when its failure to take decisive culminated in outbreak of WWII in 1939.
Hence, at the conclusion of WWII, preventing armed conflict became the central element in the key principles of the UN Charter. The UN Security Council (UNSC), which by virtue of article 2(7) is the only UN organ capable of overriding domestic jurisdiction, was charged with the primary responsibility for marinating international peace and security by 'enforcing' UN collective security measures as per the terms of article 24. Before examining the UN Charter's provisions for enforcement, it is useful to examine briefly the theory of collective security on which it is based.
The UN Theory of Collective Security
Collective security is a defensive arrangement where members agree to participate collectively in suppressing the offensive/aggressive use of force against any other member. The main objective of collective security is to institutionalize deterrence on a collective basis. As such, members are obligated to defend each other, and pledge to take unified action against any state that commits unlawful aggression.
Although the basic ideas of collective security have a lengthy history, it was not until the end of World War I that the collective security term came into general use inspired by the liberal internationalism of US President Woodrow Wilson. 9 He argued that collective security would unite all major states against aggression, and by confronting possible aggressors with a preponderance of power, provide more effective deterrence than the (realist) balance of power system. The premise was that making a preponderance of power available to all states for defensive purposes, but to no states for offensive purposes, collective security arrangements would overcome the security dilemma – i.e., the insecurity that arises when offensive and defensive military postures are indistinguishable.
Hence, a key difference between an alliance in a (realist) balance of power system and a (liberal) collective security arrangement is that the latter is primarily defensive whereas an alliance is both defensive and offensive. The balance of power and collective security are both designed to achieve the same goal (i.e., maintain peace and security by managing security dilemmas, restraining power, and deterring the use of force). There are differences, however, in the attainment of this goal. In the balance of power, restraints on power arise primarily from the logic of the system itself; although each state tries to maximize its power (relative to others) each fails because of similar actions of other states (i.e., power balancing). In a collective security arrangement, by contrast, restraints on power stem primarily from institutionalized norms and rules internalized by actors. 10
Thus, collective security imposes obligations on states based on principles and norms, and has a number of requirements for its successful implementation:
1. Members agree to settle disputes peacefully, and renounce the (unilateral and offensive) use of military force to alter the (political/territorial) status quo.
2. Members accept the principle 'peace is indivisible' – that a threat to the security of a member state anywhere is a threat to the security of all states. In this way, collective security assumes that members will place their international obligations (to come to the defence of another state) ahead of their own national interests.
3. Offensive and defensive military actions are clearly distinguishable, and that members will always agree upon the identity of the 'aggressor' and 'victim'.
4. Partial disarmament (i.e. removal of certain classes of offensive weapons, such as weapons of mass destruction) must occur. The reason is that for collective security to work, (military) power must be diffused throughout the system such that no single state is dominant, making it possible to marshal preponderant force against any state that commits aggression.
5. A high degree of interdependence exists among states such that if deterrence fails, aggression can be reversed through measures that need not entail the wholesale use of military force (e.g. through the use of economic and other sanctions).
These requirements are so stringent that some critics argue that collective security is unrealistic and unachievable. The questionable assumptions of collective security include the notion that threats to security always emanate from the use of force bystates. It also assumes that the distinction between offensive and defensive actions is always clear-cut, and that member states will always agree on what constitutes aggression and on the identity of the aggressor. These difficulties plagued the UN Charter's attempts to translate the theory of collective security into practice.
Collective Security in Practice: The UN Charter
The key provisions for collective security are in Chapters 6, 7 and 8, with Chapter 7 forming the centrepiece of the UN collective security enforcement system. The enforcement measures under Chapter 7 (Articles 39-51) envisage a series of steps in an escalating ladder of force to maintain international peace and security:
1. Under article 39, the UNSC shall determine whether a 'threat' to the peace, a 'breach' of the peace, or more seriously, if an act of 'aggression' has occurred. The implication is that an action deemed 'aggression' is more serious than one deemed a 'threat' or a 'breach'.
2. Under article 40, the UNSC is to facilitate negotiations to end the conflict. Article 41 authorizes the UNSC to invoke economic sanctions and other non-forceful measures it deems necessary to end the dispute.
3. Under article 42, the UNSC may use military force to end the dispute.
4. Once article 42 is invoked, Articles 43-47 should be automatically initiated. Here, member states contribute military forces that are to be UN forces under the command of a Military Staff Committee selected by the five permanent members of the UNSC.
5. Articles 48 – 50 deal with members assisting the UNSC, and compensation for members that suffer losses because of enforcement actions.
6. The last clause in Chapter 7 is article 51, which grants UN members the right to individual and collective self-defence.
Security Council resolutions require a 9/15 majority to pass including all five permanent members. The granting of the veto to the five permanent members (USA, UK, France, China, and USSR/Russia) represented a realization that consensus and unanimity among the major powers was essential to effective collective security. In practice, the Cold War rivalry between the USA and USSR, which was not anticipated when the Charter was drafted, made achieving such consensus difficult, and the use of the veto nearly paralyzed the UNSC. 12
The period between 1945 and the end of the Cold War in the early 1990s saw other major difficulties with the UN collective security system. One of these dealt with identifying 'aggression'. As noted, article 39 authorizes the UNSC to determine threats to security, breaches of security, or acts of aggression. The UNSC has never used 'aggression' to describe an international dispute, not even in the context of the Korea War (1950-53) and Gulf War I (1991). Furthermore, the core provisions for collective security in Chapter VII (specifically articles 42-47) have never been fully implemented in the history of the organization. In the few examples where the UN did authorize the use of force, such as in the Korean War and Gulf War I, the authorization to use of force did not come from article 42, but instead from article 51. 13
The Korean War 1950-53
In Korea, the authorization to use force was based on two resolutions (82 and 83, June 1950) passed by the UNSC, which took advantage of the USSR's boycott of the Council's proceedings in its protest against the refusal the seat the communist government of China. These two resolutions recommended that members states: a) furnish assistance to the Republic of Korea (ROK) to enable it repel the armed attack; and b) recommended that they place their forces under a unified command appointed by the USA. Was this a true UN force or a US-led force given legitimacy by the UN?
Uniting for Peace Resolution
When the USSR learned that the UNSC had authorized the use of force against the North Koreans in its absence, it instructed its UN ambassador to return to the UNSC and veto any subsequent resolution against N. Korea. In response, the remaining members of the UNSC passed the Uniting for Peace Resolution (UFPR) that streamlined the procedures for calling special sessions of the General Assembly. The resolution stated that if the UNSC failed in its responsibility for maintaining international peace and security, the UN General Assembly shall consider the matter and make recommendations for resolution, including the use of armed force. The UFPR also recommended that member states make available their forces to the UNSC or UNGA. Because the UFPR was a procedural motion, the USSR could not veto (vetoes can only be used in 'substantive' motions not 'procedural' motions). The UFPR was an attempt by Western countries to circumvent the USSR's veto. Many consider the UFPR to be of doubtful legality because under UN Charter articles 11(2), 12 and 24, only the UNSC is responsible for enforcement action. The UNGA can only make recommendations but cannot take any direct action.
The Gulf War (January-February 1991)
An examination of the text of the UNSC resolutions leading up to the armed intervention against Iraq in 1991 also reveals that UNSC resolution 678, which authorized the use of force, did not invoke art 42.
On August 2, 1990, Iraqi forces invaded Kuwait. UNSC Resolution 660 (2 August 1990) under the terms of article 39 and 40 determined that a 'breach' of international peace and security had occurred and urged both parties to the dispute to use negotiations to settle their differences. Between August and November 1990, the UNSC invoking article 41 passed resolution 661 and a series of other resolutions that imposed mandatory economic sanctions on Iraq, and intense diplomatic efforts were made to find a negotiated settlement.
On 29 November 1990, the UNSC adopted Resolution 678, which noting the failure to adhere to the previous resolutions, gave Iraq one "final chance" (45 days -- up to January 15, 1991) to comply with all resolutions. Resolution 678 stipulated that if Iraq failed to comply by the January 15 deadline, then UN member states were authorized to use "all necessary means" to uphold and implement resolution 660 and all subsequent resolutions, and to restore international peace and security in the area. Iraq failed to comply and on January 18, a coalition of military forces contributed by UN members and led by the USA attacked Iraqi forces in Kuwait. The war ended on February 28, 1991 with the defeat of Iraqi forces.
The UNSC did not explicitly indicate the legal foundations of its actions in resolution 678. Article 42 was not invoked to authorize the use of force in resolution 678. Previous UNSC resolutions did follow the graduated steps of Chapter 7, from articles 39 to 41. However, the UN Charter stipulates that before military enforcement under Article 42 can be invoked, the UNSC has to make a determination that the economic sanctions (and other non-forceful measures) under article 41 had failed. This did not occur prior to authorizing force in resolution 678. In addition, the provisions of articles 43-47 were not invoked. No Military Staff Committee was established. The military forces assembled against Iraq were not under the command of the UNSC. The forces were under the command of the USA. Military actions against Iraq in Gulf War I, therefore, were invoked under the provisions of Article 51. The phrase "all necessary means" in resolution 678 was based on the right to "individual and collective self-defence."
Regional Organizations and the Use of Force
Regional organizations are granted certain powers for maintaining international peace and security by Chapter 8 (articles 52-54) of the UN Charter. Article 52(1) permits 'regional action' consistent with the UN's purposes, but article 53 limits the scope of enforcement actions by regional agencies. Under article 53(1), regional organizations such as NATO and the African Union can only take enforcement actions under authorization of the SC. Regional organizations, however, have used the provisions of article 51 (individual/collective self-defense) to bypass the provisions of article 53(1) and undertake enforcement action without UNSC authorization.
'Enemy States'
There is a curious reference to 'enemy states' in the UN Charter found in articles 53 and 107. These articles deal with the status of states that were 'enemies' of the 'united nations' during WWII – namely, Germany and Japan. Articles 53 and 107 allow for armed intervention by UN member states and regional organizations against 'enemy states' without authorization of the UNSC. Articles 53 and 107, however, must be read in the context of WWII when the UN Charter was drafted and there was concern about further aggression by these 'enemy states'. These two articles are not relevant today. Peace treaties concluded between key UN members and their former 'enemy states' have abrogated the provisions of articles 53(1) and 107.
Peacekeeping, Peacemaking & Peacebuilding
Peacekeeping has no precise legal foundations in the UN Charter, falling somewhere between Chapter 6 and 7. Peacekeeping traditionally entailed the deployment of UN forces, with the consent of disputing parties, to monitor ceasefires and prevent a resumption of fighting. Thus, a key difference between 'peacekeeping' and 'enforcement' is that peacekeeping requires consent before forces are deployed whereas enforcement actions do not require consent. Peacekeeping, then, is based on the following principles:
1. Consent of the parties: This is so as not to violate article 2(7) for only UNSC 'enforcement' action can override article 2(7).
2. Impartiality: Peacekeepers cannot take sides (so as not to violate article 1(2).
3. Non-use of force except in self-defence: Peacekeepers are lightly armed and can only deploy force to defend themselves. This is so as not to violate article 2(4).
Between 1948 and 1956, there were five peacekeeping operations supervised by the UN Truce Supervision Organization (UNTSO). However, most observers consider the UN Emergency Force (UNEF) established in 1956 as the first true UN peacekeeping force. The UNEF was established during the Suez crisis to prevent escalation of tensions between Israel and Egypt. The UNEF was authorized by the UNGA to by-pass a possible veto by the UK and France. Since UNEF, all peacekeeping operations have been authorized by the UNSC.
The main functions of (traditional) peacekeeping included monitoring ceasefires, observing frontier lines, and interposing between belligerents in order to deter new fighting; and as long as peacekeeping required consent, it did not matter what its legal basis was. The requirement of consent, however, eroded in some of the operations that were called 'peacekeeping' mounted after the Cold War ended in the early 1990s. Indeed, the post-Cold war era witnessed a dramatic expansion in the number and scope of 'peacekeeping' operations. This led to the blurring of the distinction between peacekeeping and enforcement, and the creation of new operational strategies including post-conflict 'peacebuilding' and 'peacemaking'. Much of this expansion followed the publication of An Agenda for Peace by the UN Secretary-General in 1992. 15
Peacemaking refers to actions undertaken to bring hostile parties to agreement through peaceful means in accordance with Chapter 7 of the UN Charter. In contrast to peacekeeping operations, which only come into effect after hostilities have been suspended (through a ceasefire between the warring factions), peacemaking involves sending forces while hostilities are still in effect. Peacebuilding or 'post-conflict reconstruction' includes a wide range of activities undertaken to transform a hitherto insecure and conflictual situation/relationship, prevent violence, and achieve accommodation or reconciliation between individuals and groups at the community, regional and national levels. 16 The functions of these expanded peace operations, which have had a mixed record in such places as Angola, Bosnia, Cambodia, El Salvador, Iraq, Mozambique and Somalia, included:
1. Monitoring and even running elections
2. Protecting populations through establishing 'Safe-zones'
3. Disarming combatants and demilitarization
4. Delivering humanitarian relief
5. Rehabilitating and resettling affected populations
6. Reconstructing governmental functions
7. Broader socio-economic reforms
Humanitarian Intervention
Humanitarian Intervention occurs when a third party (a state, group of states, or international organization) intervenes with force into a state's domestic jurisdiction to stop or prevent that state from abusing the rights of its own citizens. Humanitarian intervention is usually differentiated from humanitarian assistance that relieves the suffering of victims of natural and man-made disasters. Humanitarian intervention should also be distinguished from the kind of intervention states may undertake to protect their nationals overseas under the Rights of Aliens. Humanitarian intervention deals with action against a state's treatment of its own nationals not of foreign nationals living in its territory. Humanitarian intervention may assume different forms, multilateral or unilateral, and interventions may range in intensity of force applied. Most controversial is Unilateral Humanitarian Intervention (UHI), which involves military intervention by a single state or a group of states.
Prior to the UN Charter in 1945, UHI was considered a right of states conferred by custom. UHI was part of 'just war' doctrines and Hugo Grotius considered UHI legal when tyrants abused their citizens who could not defend themselves. In the 18th and 19thcenturies, UHI was legal but tainted by political/mercantilist/racist/religious influences. For example, France and the UK invaded the Ottoman Empire in 1860 ostensibly to protect Christian minorities in the Syrian province.
Since the inception of the UN Charter, however, the legal status of UHI is in doubt. The problem is that the UN Charter supersedes all pre-existing customs. Although the Charter does not explicitly ban UHI, it does not explicitly address it. In those sections of the Charter that deal with forceful intervention, human rights are not included under the category of offenses that warrant intervention. Let us examine arguments for and against humanitarian intervention.
Arguments against Humanitarian Intervention
Several arguments can be advanced against legalizing humanitarian intervention.
1. Under the UN Charter, force is only legal if it is in self-defence (article 51) or authorized by the UNSC. Article 1(2), 2(4), and 2(7) of the UN Charter as well as the three UNGA resolutions we examined in section 2.5 clearly do not permit forceful intervention to stop/prevent human rights abuses.
2. International law more broadly does allow for intervention (with force if necessary) in cases where peremptory norms (jus cogens) are violated. Peremptory norms, which include prohibitions against genocide, apartheid, slavery, and other 'crimes against humanity', are 'above' state sovereignty, and no state that violates a peremptory norm can claim the protection of the territorial covenant. For example, Article 8 of the 1948 Genocide convention states that "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide." However, for forceful intervention to occur the scale of the abuses and crimes must be such that they 'shock the conscience of mankind'. Not all violations of human rights, even if the abuses are widespread, meet this threshold and warrant forceful intervention.
3. There is no rule of international law that forbids insurrection and the use of force within states. In such cases, international law prohibits intervention on the grounds that no faction is competent to speak on behalf of the state as long as the outcome remains uncertain. 17 The expediency of this view rests on two foundations. The first is to prevent third parties from unduly influencing the outcome of internal self-determination through intervention on behalf of one side or the other in a civil conflict. The second is to prevent the civil war from becoming an international war. The premise is that civil wars become international wars through competing external recognitions and interventions. If different outside states recognize and support different factions, opposing interventions could escalate that civil war into an international war. The only exceptions are when the conflict is 'internationalized' through, for example, a trans-border spill-over, or peremptory norms are violated.
4. Humanitarian intervention can produce a 'moral hazard' (when ostensibly 'good' actions produce 'bad' outcomes or effects) in two ways. First, humanitarian intervention may encourage disaffected groups within states to resort to violence in order to provoke the government of that state to respond with violence, in the hope that external actors will intervene if that government's crackdown is too severe. This argument has been applied to the situation in Kosovo prior to NATOs intervention in 2007, for example. Second, when external actors intervene in a civil conflict before the outcome is certain, they pre-maturely 'freeze' that conflict and allow it to drag on for longer than it should have thereby resulting in more casualties. 18
5. State practices also show that humanitarian intervention is illegal. For example, in 1971, India intervened in a civil war between East and West Pakistan in which members of the Bengali minority group were allegedly persecuted. After initially claiming its actions were justified as humanitarian intervention, India changed its justification to self-defence claiming that the war in Pakistan had spilled over the border into India. Similarly, in 1979 Tanzania intervened in Uganda to overthrow the government of Idi Admin, which had committed widespread human rights abuses in Uganda. Here also, Tanzania justified its action as self-defence (abatement) because Ugandan soldiers had entered Tanzanian territory and a brief border skirmish had occurred.
6. It is difficult to distinguish pretextual and altruistic motives for intervention. If UHI were legal, the cost of potential abuses from pretextual interventions (i.e., those motivated by political, strategic, economic and other ambitions) would outweigh any potential benefit derived from altruistic interventions. The potential for abuse is too great. For example, in 1938, Nazi Germany used humanitarian intervention as a pretext to justify its invasion of Czechoslovakia. In the contemporary period, the concern is that richer and more powerful Western states would use human rights considerations as pretexts for all kinds of interventions into poorer non-Western countries. 19 For critics therefore, the UN Charter's enforcement measures offer sufficient protection of human rights without the need for UHI.
Arguments in favour of Humanitarian Intervention
Those who advocate in favour of humanitarian intervention make the following arguments:
1. Several articles in the UN Charter can be interpreted as allowing for humanitarian intervention. For example, article 2(4) permits the use of force in ways that are not "inconsistent with the purposes of the U.N". 20 The argument here is that since the promotion of human rights is one of the key purposes of the UN as stated in article 1(3), then humanitarian intervention to protect human rights is consistent with the UN Charter. 21 Furthermore, as noted in section 2 of this unit, it could be argued that UHI does not necessarily violate article 2(4) if there is no long-term territorial and political ambition and the use of force is proportionate. Other UN Charter provisions that could be interpreted to support UHI include articles 13(1b), 55(c), 56, 62(2), 68, 73 and 76(c).
2. Limiting interventions in internal conflicts only to cases where peremptory norms are violated poses certain problems. First, it presupposes that there are clear-cut distinctions between the use of force in a 'civil war' and use of force in genocides. The distinction, however, is not always clear-cut in practice. For example, the Rwandan genocide in 1994 unfolded in part because members of the UNSC defined the problem as a civil war – a resumption of fighting following the breakdown of a ceasefire – not genocide, thereby justifying inaction. 22 Second, it raises the threshold too high because many of the most egregious human rights violations, such as sexual violence against women during armed conflicts, and the brutalizing of civilian populations do not qualify as jus cogens.
3. The UN Charter's enforcement measures under Chapter 7 have not been effective in stopping/preventing widespread human rights abuses. The UNSC has been highly selective and inconsistent with respect to interventions. When it did intervene in an internal conflict, even under a Chapter 7 mandate, the UN attempted to deal only with those aspects of the conflict that made it 'international', such as preventing the spillover of refugees or combatants across borders, or where there was ample evidence of external military intervention. Other aspects of the conflict were considered to be within domestic jurisdiction. This was the case even where the intervention was justified ostensibly for humanitarian purposes. A good example was the UN's intervention in carving Iraq into north and south 'no-fly' zones in April 1991. Although humanitarian considerations were invoked, the primary motivation for UNSC resolution 688 that authorized the intervention was the threat to regional peace and stability presented by the flow of refugees into neighbouring states.
4. The 'so what?' argument: The complaints about the difficulties in distinguishing pretextual and altruistic motives for interventions miss the point. The point of a humanitarian intervention is to stop or prevent widespread human rights abuses. Thus, if the intervention succeeds in achieving that goal, so what if the intervening state has pretexual motives? Does it really matter? If there is clear evidence widespread human rights abuses are occurring, the fact that the intervening state might be seeking other benefits (not including long-term territorial and political ambitions) in their intervention does not derogate from the act of stopping/preventing abuses. The argument goes even further: It is unrealistic to expect interventions to be purely altruistic (assuming such a thing even exists). The willingness of states to incur the costs of intervention for human rights purposes might actually increase if those states are convinced that there are other political/economic/strategic benefits.
5. Perhaps the most comprehensive effort to support humanitarian intervention is associated with the notion of a Responsibility to Protect (R2P). The 2001 International Commission on Intervention and State Sovereignty (ICISS) report first formally articulated R2P. 23 R2P attempts to change the terms of the discourse from one of a 'right to intervene' to one that redefines sovereignty as entailing a 'responsibility to protect'. R2P is also embedded within a broader discourse of Human Security that shifts the focus from the traditional emphasis on the security of states in collective security to one that emphasizes the security of individuals/groups as well as states. 24 The core of the argument is that state rights are derivative rights, i.e., they derive from the population that state supposedly represents. A state's primary responsibility is to ensure the well-being of its population. A state that commits gross human rights abuses, therefore, forfeits its claim to represent those citizens and its right to non-intervention. R2P includes a continuum of responsibility including the responsibility to prevent, to react and to rebuild. The burden of responsibility is to be borne by a hierarchy of actors – the host state in the first instance, then regional organizations, and then finally the UN. Although R2P may not yet be established as a legal principle, it appears to be gaining favour among states, regional organizations, and the UN. In the attempt to translate R2P into practice, the UNGA endorsed R2P at the 2005 World Summit. The Outcome Document of the 2005 World Summit (paragraphs 138 and 139) stresses the need to protect civilians from 'genocide, war crimes, ethnic cleansing and crimes against humanity'. The UNSC has assumed the primary role in authorizing actions invoking R2P, including resolution 1973 in March 2011 that imposed no-fly zones over Libya and urged member states to take "all necessary means" to protect civilians from attack by Libyan leader Quaddafi.
