scholarly journals Condoning the Use of Force: The UN Security Council as Interpreter of the Jus ad Bellum

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 113-117
Author(s):  
Ian Johnstone
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Policy Implications ◽  
Interesting Phenomenon ◽  
Jus Ad Bellum ◽  
Un Security Council ◽  
Cast Doubt ◽  
A Site

Monica Hakimi's article probes the legal significance of an interesting phenomenon: the UN Security Council condoning the use of force, as opposed to authorizing it. She offers an innovative perspective on this little-studied dimension of how the Council contributes to the development of jus ad bellum. While I applaud much in the article, I question her characterization of what the Council is condoning in the cases she reviews. She claims these are “fact-specific decisions,” whereas I argue that the Council is endorsing controversial interpretations of the law on the use of force. This disagreement does not detract from Hakimi's observations about the policy implications of the practice, or about the Council's role as a site for deliberation and argumentation about the content of international law. But it does cast doubt on her conceptual claim that there are two distinct “regulatory forms,” which together provide the content of jus ad bellum, one particularistic and procedural, the other general and substantive. All legal claims and justifications entail the application of general standards to particular facts, either explicitly or implicitly. Most of her case studies can be explained in those terms. Thus, while the Council's practice of condoning the use of force is important to understand, the “conventional account” she derides provides a more persuasive and parsimonious explanation of that phenomenon.

Mandated to Protect

2016 ◽  
Author(s):  
Haidi Willmot ◽  
Ralph Mamiya
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Legal Framework ◽  
Human Rights Law ◽  
Peacekeeping Operations ◽  
Un Peacekeeping ◽  
Un Security Council ◽  
Republic Of The Congo ◽  
Peacekeeping Missions

This chapter focuses on the conception and evolution of the UN Security Council mandate to protect civilians during peacekeeping operations from 1960 to the present. The chapter examines the normative and legal framework of the use of force to protect civilians in UN peacekeeping operations, with reference to Security Council resolutions and other bodies of international law such as humanitarian and human rights law. It considers Security Council practice between 1960 and 1999 and its emphasis on the concept of self-defence; Security Council practice from 1999 to 2007 regarding the inception and development of the explicit ‘protection of civilians’ mandate by the Council; Security Council practice from 2007 to 2011; and prioritization of the mandate in certain peacekeeping missions, specifically UNAMID (Sudan (Darfur)), MONUC (Democratic Republic of the Congo), UNOCI (Côte d’Ivoire), and UNMISS (South Sudan). Finally, the chapter describes Security Council practice from 2011 onwards and draws conclusions on impact that the protection of civilians mandate in peacekeeping operations has had on the evolution of the legitimate use of force under the UN Charter.

Terrorism

2012 ◽  
Author(s):  
Ben Saul
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Customary Law ◽  
International Human Rights Law ◽  
International Consensus ◽  
Counter Terrorism ◽  
Un Security Council ◽  
Per Se ◽  
The Law

International law has struggled to regulate terrorism for over a century, beginning with efforts to cooperate in the extradition and prosecution of suspects, including through unsuccessful League of Nations efforts to define and criminalize terrorism as such. Until 2001 most international attention focused on transnational criminal cooperation against terrorism, through the development of method-specific “prosecute or extradite” treaties (concerning, for instance, violence against aircraft or ships, hostage taking, or attacks on diplomats) but without defining terrorism as a general concept or crime. It may, however, be possible to qualify some terrorist acts as war crimes or crimes against humanity. Since the 1970s, there were ambivalent efforts through the UN General Assembly to develop normative frameworks to confront terrorism per se, which often came unstuck on the controversial issues of “state terrorism” and liberation movement violence. Greater consensus was achieved by 1994 with the General Assembly’s adoption of a declaration against terrorism. There appears to exist an international consensus that terrorism per se is wrongful, even if disagreement remains about identifying precisely what constitutes terrorism. The effort to deal with terrorism as such suggests that the international community views terrorism as more than its underlying physical parts, which are already crimes in most national legal systems and under certain transnational treaties. The special wrongfulness of terrorism is perhaps signified by its intimidation of civilian populations, its coercion of governments or international organizations, and its political, religious, or ideological aspect. Terrorist violence has also sometimes raised certain problems under the law of armed conflict and the law on the use of force, as well as occasionally attracted sanctions imposed by the UN Security Council. Terrorism was generally dealt with, however, through the application of general legal norms rather than through the emergence of terrorism-specific rules. After the terrorist attacks of 11 September 2001, sharper international focus was brought to bear on the legal challenges presented by terrorism and counter-terrorism in numerous specialized branches of international law (particularly in the law of state responsibility, the law on the use of force, and international humanitarian law), as well as in the institutional practices of the UN Security Council and the impacts of counter-terrorism measures on international human rights law. By 2011 the UN Special Tribunal for Lebanon even declared the existence of an international customary law crime of transnational terrorism, although that decision has proven highly controversial as not supported by state practice. Efforts to negotiate a comprehensive international convention against terrorism have continued since 2000, with disagreement remaining over the scope of exceptions. There is also now increasing debate about whether a field of international anti-terrorism law is emerging.

10. International law and the use of force

2021 ◽  
pp. 219-246
Author(s):  
Nicole Scicluna
Keyword(s):  
International Relations ◽  
International Law ◽  
Security Council ◽  
Turning Point ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Responsibility To Protect ◽  
Territorial Integrity ◽  
Jus Ad Bellum ◽  
Self Defence

This chapter explores the justness, legitimacy, and legality of war. While 1945 was a key turning point in the codification of jus ad bellum (i.e. international law on the use of force), that framework did not emerge in a vacuum. Rather, it was the product of historical political contingencies that meant that codification of the laws of war was contemporaneous, both geographically and temporally, with the solidification of the norms of sovereign nation-statehood and territorial integrity. The chapter focuses on the UN Charter regime and how it has shaped the politics of war since 1945. Importantly, the Charter establishes a general prohibition on the use of force in international relations. It also grants two exceptions to the prohibition: actions undertaken with Security Council authorization and actions taken in self-defence. Today, many of the most serious challenges to the Charter regime concern the definition and outer limits of the concept of self-defence. Another set of challenges to the Charter regime concerns the contested concept of ‘humanitarian intervention’. The chapter then looks at the development of the ‘Responsibility to Protect’ doctrine.

scholarly journals Use of Force in Cyberspace

2020 ◽  
Vol 20 (2) ◽  
pp. 174-191
Author(s):  
Jozef Valuch ◽  
Ondrej Hamuľák
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Un Security Council ◽  
The Individual ◽  
Self Defence

Summary The ban on the use of force in current international law is of mandatory character. The only exceptions are actions under the auspices of the UN Security Council and self-defence. The article addresses the issue of the use of force, with particular emphasis on cyberspace. As the nature of the conflicts has changed in recent years as well as the space where the individual operations have been moving, a number of fundamental questions arise in this context, which the authors will try to answer.

13. The international regulation of the use of force

2021 ◽  
pp. 251-272
Author(s):  
Anders Henriksen
Keyword(s):  
Security Council ◽  
Use Of Force ◽  
Legal Framework ◽  
International Regulation ◽  
Jus Ad Bellum ◽  
Primary Responsibility ◽  
Un Security Council ◽  
Peace And Security ◽  
The Right ◽  
Self Defence

This chapter discusses the regulation of when and for what purpose a state may use force against another state jus ad bellum. It provides an overview of the legal framework in the 1945 UN Charter. It analyses the content of the prohibition on the use of force in article 2(4) of the Charter; discusses the competences of the UN Security Council; and examines the right to self-defence. The Security Council is entrusted with primary responsibility for the maintenance of international peace and security and, under Chapter VII of the Charter, the Council may authorize the use of force if required to maintain and/or restore the peace. Article 51 of the Charter allows a state to defend itself in the case of armed attack.

scholarly journals The Relationship between the Un Security Council and General Assembly in Matters of International Peace and Security

2016 ◽  
Author(s):  
Nigel D. White
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Responsibility To Protect ◽  
General Assembly ◽  
International Peace ◽  
Un Security Council ◽  
Peace And Security ◽  
Un General Assembly ◽  
The Relationship

This chapter examines the division of competence between the UN Security Council and the UN General Assembly concerning matters of international peace and security but placed within the context of the prohibition on the use of force. Although the Security Council can authorize the use of force by states, what is not clear is whether the General Assembly can recommend that states take military action. The chapter considers the conundrum faced by the United Nations with respect to an imminent and catastrophic use of force or act of egregious violence, when the UN Security Council is deadlocked because of the lack of agreement between the permanent members. It discusses the debate over the legality of the (in)famous Uniting for Peace Resolution of 1950 within the context of the emerging principle of a Responsibility to Protect (R2P) as well as within existing principles of international law.

13. The international regulation of the use of force

2019 ◽  
pp. 254-278
Author(s):  
Anders Henriksen
Keyword(s):  
Security Council ◽  
Use Of Force ◽  
Legal Framework ◽  
International Regulation ◽  
Jus Ad Bellum ◽  
Primary Responsibility ◽  
Un Security Council ◽  
Peace And Security ◽  
The Right ◽  
Self Defence

This chapter discusses the regulation of when and for what purpose a state may use force against another state—jus ad bellum. It provides an overview of the legal framework in the 1945 UN Charter. It analyses the content of the prohibition on the use of force in article 2(4) of the Charter; discusses the competences of the UN Security Council; and examines the right to self-defence. The Security Council is entrusted with primary responsibility for the maintenance of international peace and security and, under Chapter VII of the Charter, the Council may authorize the use of force if required to maintain and/or restore the peace. Article 51 of the Charter allows a state to defend itself in the case of armed attack.

The Use of Force Against Pirates

2016 ◽  
Author(s):  
Douglas Guilfoyle
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Law Of The Sea ◽  
Legal Regime ◽  
Public International Law ◽  
Security Personnel ◽  
Un Security Council ◽  
Self Defence

This chapter examines the use of force against piracy in the context of international law, with particular reference to the pirates off Somalia. It discusses the counter-piracy activities by multinational military forces under the applicable public international law of the sea and as law enforcement operations. It also considers the issues raised by the use of force by private merchant vessels in self-defence, including the use of privately contracted armed security personnel. The chapter reviews the relevant UN Security Council resolutions and the legal regime applicable at sea and ashore within Somalia itself. It also analyses the Council’s authorization of states to use ‘all necessary means to repress acts of piracy and armed robbery’ within Somalia’s territorial sea.

The Continued Relevance of Established Rules and Institutions Relating to the Use of Force

2016 ◽  
Author(s):  
James Crawford ◽  
Rowan Nicholson
Keyword(s):  
United Nations ◽  
International Law ◽  
Security Council ◽  
Armed Conflict ◽  
Use Of Force ◽  
Jus Ad Bellum ◽  
Sovereign Equality ◽  
The United Nations

This chapter examines the relevance of the international law and institutions governing the use of force (jus ad bellum). It considers a number of critiques centred on whether the rules expressed in the UN Charter are effective in practice, too indeterminate, or too strict. First is the realist critique that views the rules on the use of force as ineffective. Second is the legal critique that the prohibition on the use of force does not amount to international law at all. In particular, the chapter discusses Michael Glennon’s argument in Chapter 3 of this volume that the principle of ‘sovereign equality’ has prevented the United Nations, especially the Security Council, from addressing emerging crises. It also argues that the UN Charter rules, while not always optimally effective, have played a key role in reducing interstate armed conflict since 1945.

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