NON-TRADITIONAL
USE OF FORCE
LAW QUESTIONS
Prof David K. Linnan
USC LAW # 783
Unit 11
NON-TRADITIONAL?
“NON-TRADITIONAL” MEANING DO NOT FIT CLEANLY INTO PICTURE OF
INT’L WAR BETWEEN TWO STATES UNDER UN CHARTER SYSTEM
LEGAL & STRUCTURAL ORGANIZATION FOR USE OF FORCE LAW
1.
Internal Conflict (Civil War)
a.
Older ideological
b.
Newer ethnic
2.
Intervention
a.
Old civil war rules govt vs insurgents
b.
Newer counterintervention rationale but where
under UN Charter, art 2(4)?
3.
Peacekeeping-Peacemaking
a.
Older version truce monitors present by consent
b.
Newer version non-consensual on-going conflicts,
also failed states
4.
Humanitarian Intervention
a.
Widespread grave human rights violations (e.g.,
genocide so often ethnic)
b.
Brutal dictator, meaning claim intervening
for what purpose?
TRAD SOURCES I
“TRADITIONAL” USE OF FORCE SOURCES OF LAW
UN Charter art 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.”
Note ambiguity of four emphases:
1. use of force
2. territorial integrity (sometimes consent arguments)
3. political independence (used often re
counterintervention or “consent”)
4. UN purposes (used often re humanitarian intervention)
TRAD SOURCES II
“TRADITIONAL” USE OF FORCE SOURCES OF LAW (CONT’D)
UN Charter Chapter VII re Security Council
art 39
The Security Council shall determine the existence of any threat
to the peace, breach of the peace, or act of aggression and
shall make recommendations, or decide what measures shall be
taken in accordance with Articles 4 and 42, to maintain or
restore international peace and security.
Note that the jurisdiction contemplated is threat to int’l peace &
security, but Security Council can determine that internal
conflicts/civil wars also threaten international peace & now even
find jurisdiction to create war crimes tribunals (as in former
Yugoslavia, e.g., Kosovo & Bosnia, but what of UN Charter art
2(7) exclusion of domestic matters?)
TRAD SOURCES III
“TRADITIONAL” USE OF FORCE SOURCES OF LAW (CONT’D)
UN Charter Chapter VII re Security Council
art 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. 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.
Note that if you follow the traditional self-defense view as US
with Caroline, some older precedents re rescuing nationals
(modern version Entebbe, Grenada med students)
CIVIL WAR I
INTERNAL CONFLICT/CIVIL WAR
1.
Cold War problem of sponsored insurgencies
(political, Socialist countries vs West)
a.
Arguments about what is really a
civil vs int’l war with Vietnam as
example
b.
Intervention and counterintervention as
with Nicaragua & El Salvador in 1980s
2.
Post-Cold War world problem of ethnic insurgencies &
self-determination element
a.
Former Yugoslavia as example
b.
But remember unit 6 & history of selfdetermination reaching back to nationalist &
Wilsonian solution to former ethnic empires
(Austro-Hungary in Eastern Europe & Ottoman
in Middle East), is this really a new problem?
CIVIL WAR II
INTERNAL CONFLICT/CIVIL WAR (CONT’D)
1.
Does it make a difference if self-determination
plays a prominent role in newer civil conflicts?
[Off the record]
2.
What are the technically applicable law of armed conflict
rules, jus in bello same as for int’l armed conflict?
a.
Int’l humanitarian law sees difference,
but claim that on whole customary law is
applicable to international & civil conflicts
b.
Theoretical prob in mixing human rights
law & distinctive legal tradition of armed
conflict law (but often not a practical
problem since conduct pursued really
egregious, like summary execution of
civilians, etc.)
INTERVENTION
TRADITIONAL CIVIL WAR & INTERVENTION RULES
1.
Traditional approach with favoritism towards
govt, issue re not assisting insurgents until
established because of intervention probs
2.
Idea of Spanish Civil War developments
though is that traditional non-invention rules
never worked with ideologically-based civil
wars (instead, issue re counterinterventions
in modern setting)
3.
Some modern arguments look to political
independence language in UN Charter art 2(4)
with the idea that external influence must be
countered, whether on govt or insurgent side.
But who judges?
PEACEKEEPING
WHAT IS POTENTIAL SOURCE OF LEGAL AUTHORITY FOR,
AND WHAT ARE:
1. Peacekeeping?
a.
older UN “blue helmet” tradition involving chiefly
consent and enforcement of truces when combat on
ground already ceased (Arab-Israeli conflicts, Cyprus,
Congo, etc.)
b.
Post-Cold War problem is that now peacekeeping postformer Yugoslavia has a developing state bias with
developing state hotspots, often NATO-based
i.
Europe gets North Americans/Europeans with
modern military (e.g., NATO in Kosovo)
ii.
Everybody else (Africa, Asia & Middle East)
largely gets developing country soldiers
(Indians, Pakistanis, Africans, etc. with lesser
training & equipment; poor man’s justice
arguments)
PEACEMAKING
WHAT IS POTENTIAL SOURCE OF LEGAL AUTHORITY FOR,
AND WHAT ARE:
2.
Peacemaking?
a.
Idea of less consensual, may get Security
Council charge as with Kosovo and may as a
result land in on-going conflict
i.
Likely here is where you see art 39
application in domestic conflict, likely
ethnic or religious in current setting
ii.
More ambitious a decade ago,
arguably now viewpoint has changed
but still religious element claimed
b.
c.
Practical side of landing in on-going conflict is
that job may be different as in disarming large
numbers of combatants (so what if they resist
giving up guns
Practical problem in that this is often now in a “
failed state” environment, as with Somalia &
idea that may be very little local authority
QUASI-INTERVENTION?
HOW TO INTERPRET THE DIFFERENCE BETWEEN AN
INTERNAL AND EXTERNAL CONFLICT & INTERNAL
MINUS GOVT:
1. UN Security Council Chapters VI & VII?
2. Ordinary law of armed conflict (jus in bello)?
3. Intervention in civil war (presumbly to restore order, but
failed state problem & potential lack of government)?
4. Re IR views, what can be done about failed state issues?
a. Some view as anti-terrorism as “havens” problem, but
law does not recognize (but self-defense link in
stretching law, preemptive self-defense issues & noinstate actors problem)
b. Was this the Afghanistan or Iraq problem, and is this
more easily understood than “humanitarian
intervention” claims?
SEC COUNCIL SCOPE
WHAT ARE THE JURISDICTIONAL LIMITS OF UN CHARTER
ART. 39:
1.
Art 39
“The Security Council shall determine the existence
of any
threat to the peace,
breach of the peace,
or act of aggression….”
2. How do different state groups feel about this & what is
connection to arguments about Security Council
composition?
3. How have views changed since the immediate post-Cold
War ferment?
SO WHAT?
UN CHARTER ART 39 HIDDEN ISSUES
1. What is at stake depending upon whether
jurisdictional limits in art 39 are narrowly
or broadly interpreted?
2. Does it matter that much of the latest
peacekeeping/making involves internal
conflicts?
3. Who else should be in charge? Longer
term?
HUMAN INTERVENTION
HUMANITARIAN INTERVENTION’S BASIS
1.
Traditional claim pushed by US academics as consistent with
“UN purposes” under UN Charter art 2(4)
[Opposing view]
1.
Idea largely academic until embraced as US govt policy first in
Clinton Admin (Kosovo), current Bush Admin (leftover claim in
Iraq past weak self-defense claims)
[Off the record]
3.
[Off the record]
[Opposing view]
Humanitarian intervention is non-consensual, but resembles
peacemaking so is it really humanitarian or merely
intervention?
[Off the record]
4.
What is the role of NGOs, positive or negative in humanitarian
interventions and why? Enthusiastic now or before?
[Off the record]
[Off the record]
FACT PATTERNS I
MODERN (RECENT) FACT PATTERNS
1. Failed states (Somalia, Chapter VII)
2. States breaking up (Former Yugoslavia, esp. Bosnia &
Kosovo, ?)
3. Humanitarian intervention (post-1991, Kurds & Shiites in
North & South Iraq, Chapter VII)
4. Afghanistan & Iraq, Afghanistan more or less UN
sanctioned but 2003 Iraq military action claimed selfdefense and unilateral
DOES THE USE OF FORCE LAW OR UN COLLECTIVE
SECURITY SYSTEM REALLY FIT THESE, BUT WHO IS
WILLING TO CHANGE & WHY OR WHY NOT?
FACT PATTERNS II
MODERN PATTERNS (CONT’D)
1. Issue of UN collective security apparatus (Security Council)
drawing on willing (now increasingly third world countries
only) versus collective security military alliances (NATO)
versus unilateral commitment of troops (French used to do
in Africa, US now in Iraq) as organizational
2. Putting aside legal issues re use of force, is current Iraq
conflict on the facts really more of a peacemaking/civil war
anti-insurgency operation in the making and how would
you then think about it in legal terms? Is this what pushes
towards so-called preemptive war doctrine?
3. Military term “Indian wars” vs large scale tank battles of
Cold War planning, can it be fit within UN Charter
legal/organizational scheme and how? If it were fit within
UN Charter legal/organizational scheme do you think those
states opposing unilatreral action would drop all
objections?