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International Law

War: International and Civil


War: International and Civil
Just War: Avenging injuries against a foe
that fails to punish wrongs committed by
its citizens.
that kind of war is undoubtedly just which God
Himself ordains St. Augustine
i.e., obtaining reparations and Holy wars were
okay
Just War
Just Cause Properly Authorized
Competent Authority Just Cause
Comparative Justice Peaceful means
Right Intention exhausted
Last Resort Victory Likely
Probability of Success Probability that war
Proportionality will not produce more
evil than good
War: International and Civil
OLD customary law seemed to be: war is
justified if fought for the defense of vital
interests
Each State was entitled to decide what its vital
interests were
Sooooooo, were there really any limits on war,
at least to the winner???
War: International and Civil
But the way States thought about war
started changing, slowly, but changes,
none-the-less.
1815/1839 treaties guaranteeing Switzerland
and Belgium neutrality and protection against
attack
1907 Hague Convention II prohibiting the use of
force to collect contract debts (with exceptions)
War: International and Civil
WWIand 9 million deaths: War, no matter how
much we enjoy it, is no strawberry festival. Frank
Burns
League of Nations has a three month cooling
off period before members were supposed to
go to war
Members were not supposed to go to war against
other members
1928 Kellogg-Briand Pact (Peace of Paris)
intent was to outlaw war as policy
War: International and Civil
UN Charter, 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.
This may also be customary international law
Some authors: Article 2(4) should be interpreted
as totally prohibiting the threat or use of force,
period.
War: International and Civil
Note it outlaws the threat or use of force not
just war
Note, also, that it outlaws threat/force only
against territorial integrity or political
independence
So can you use threat/force for other purposes???
Rescue ones nationals, halt genocidal atrocities,

prevent crimes against humanity???


Or does the other manner inconsistent with the

Purposes of the United Nations save it???


War: International and Civil
Bottom line: International law or a States rights
should not be enforced at the expense of
international peace. Corfu Channel
War: International and Civil
Exceptions:
Force authorized by the UN or competent
regional organization (Later)
Self-defense (Article 51): Charter does not
impair the inherent right of individual or
collective self-defense in an armed attack
occurs . . . until the Security Council has taken
the measures necessary to maintain peace.
War: International and Civil
Caroline: For British action to be legal
must show a necessity of self-defense,
instant, overwhelming, leaving no choice
of means and no moment for deliberation.
And had to show that by entering the US,
the British did nothing unreasonable or
excessive; since the act justified by the
necessity of self-defense must be limited
by the necessity and clearly within it.
Preventive self-defense
War: International and Civil

Preventive Self-Defense
Against what???
A wide range of interests??? Probably not
How about Cuba in 1962
not a good example . . . of the doctrine of
anticipatory self-defense, because a communist
attack was probably not imminent
What is imminent???

A question of opinion and degree


Bound to be subjective and capable of abuse
Preventive Self-Defense-Terrorism
Terrorist threat is real and genuine
Terrorist threat is immediate and imminent,
allowing no time or available mechanism
for negotiation or deliberation
The preemptive response taken is a
military necessity and proportional to the
perceived threat
War: International and Civil
Fear of creating a dangerous precedent is
probably the reason why states seldom invoke
anticipatory self-defense in practice.
Israel 1967

Israel-Iraq 1981

US-Libya 1986

US-Iraq 2003
War: International and Civil
Self-defensemay NOT be used to settle
disputes as to ownership of territory
Falkland/Malvenes 1982
Iraq/Iran 1980; Iraq/Kuwait 1990

BUT may defend an attack even if the other party

has a better title than you if you are in possession


War: International and Civil
Self-defense and attacks on ships/aircraft?
Yes
Armed Protection of Citizens?
Israel Entebbe 1976
US Iran 1980

US Grenada 1984

Mixed Reviews

Is this really self-defense or self help???


War: International and Civil
Reprisals
Self-defense does not include a right of armed reprisal;
if terrorists enter one state from another, the first state
may use force to arrest or expel the terrorists, but,
having don so, it is not entitled to retaliate by attacking
the other state.
US Libya 1986
US Panama 1989
Israel
US Iraq 1993
Governed by proportionality
War: International and Civil
Self-defense must be necessary,
immediate, and proportional to the
seriousness of attack
Falklands 1982: waited a month to counter-
attack
Enough to repel attack (and, maybe, to prevent
a repeat attack); retaliation and punitive
measures are forbidden
War: International and Civil
Collective self-defense
Defense of others: Other state has right to defend
itself and asks others to help
Collective security
Goal to maintain general international peace and
security
Civil Wars
If not a civil war yet, may help the govt
A war between two or more groups of the
same State (one of which may be the de
facto or de jure government)
Not against international law per se
Participation by others
ForeignStates are forbidden to help insurgents
Nicaragua v. U.S.A.
Civil Wars
Exception [maybe] to rule of no help my be
where the government is receiving foreign help
Counter-intervention
Many States argue that a State may give help
to the government because a State may invite
other to help (a kind of self-defense argument)
Hungary, Czechoslovakia, Afghanistan and the
USSR
But who is the de facto or de jure government?
Civil Wars
Collective self-defense against subversion
(out-side help)
Armed Attack only???
Troops, but not weapons???
Self-determination
Who does self-determination apply to?
Article73, UN Charter: every territory which is
geographically separated and is distinct
ethnically and/or culturally from the country
administering it
Especially if territory is in a position of subordination
to the administering power
Peoples subjected to alien subjugation and
exploitation
Self-determination
Can choose independence, integration, or
association
Colonial enclaves
Western Sahara
Falklands
Self-determination
All peoples have the right to self-
determination
BUT: self-determination does not authorize
any action which splits up independent
States possessed of a government
representing the whole people . . . without
distinction as to race, creed, or color.
Self-determination
So, does self-determination apply outside
a colonial type situation???
Palestine?
Kurds?
Self-determination
Legal Problems
Colonial State retains sovereignty over its
colony until exercise their right of self-
determination
Self-determination for independence creates a
new State with the boundaries of the colony-
even if splits ethnic/religious groups
Self-determination
Wars of National Liberation
A civil war or an international war???
People that have a legal right to self-
determination are entitled to fight a war of
national liberation
Illegal to use force against an attempt to
exercise right of self-determination
Self-determination
Minority populations have no right under
international law to self-determination or
succession
However, it isnt against international law
for a civil war
Butthen we are back to who can help in a civil
war and what kind of help