scholarly journals 2 The Use of Force against Da‘esh and the Jus ad Bellum

2017 ◽  
pp. 9-34 ◽  
Keyword(s):  
Use Of Force ◽  
Jus Ad Bellum

The Limitations of Traditional Rules and Institutions Relating to the Use of Force

2016 ◽  
Author(s):  
Michael Glennon
Keyword(s):  
International Cooperation ◽  
Use Of Force ◽  
Jus Ad Bellum ◽  
Sovereign Equality ◽  
Self Defence

This chapter examines the limitations of traditional rules and institutions with respect to the use of force. It considers international cooperation in managing the use of force, and whether and when the use of force is justified, within the framework of the jus ad bellum. The chapter discusses three factors that help to explain why the rules and institutions that regulate the use of force have not been effective. First is the weakness of international law’s secondary rules concerning consent, obligation, and causation. Second is the weaknesses in the UN Charter rules due to deficiencies in the wording of the rules themselves, especially with regard to pre-emptive self-defence. Third is the weakness in compliance resulting from the UN Security Council’s dysfunctionality, in part due to the UN’s professed reliance upon the principle of sovereign equality.

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.

scholarly journals The changing rules of jus ad bellum : conflicts in Kosovo, Iraq and Afghanistan

2017 ◽  
Vol 7 (2) ◽  
pp. 130
Author(s):  
W Scholtz
Keyword(s):  
International Relations ◽  
International Law ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Armed Force ◽  
Armed Attack ◽  
Coercive Measures ◽  
Jus Ad Bellum ◽  
The Usa ◽  
The Uk

This article focuses on three instances of the use of armed force in international relations. The three instances that are explored are the intervention by NATO in Kosovo, the armed attack by mainly the USA and the UK against Afghanistan and the war against Iraq in 2003. The purpose of this investigation is to examine the legality of the coercive measures in order to ascertain the effects that these actions had in relation to article 2(4) of the UN Charter. The proposed justifications for the attacks differ and these are carefully scrutinized against the jus ad bellum as to determine the legality of the attacks. The notion of humanitarian intervention was used as a ground for justification by various international scholars to explain the use of force in Kosovo, but this concept is not recognized in terms of international law. The attack on Afghanistan was based on article 51 of the UN Charter. The attacks were directed at Afghanistan as this state harboured the terrorists responsible for the attacks on the USA. The mere harbouring of terrorists does not give rise to the use of armed force on the basis of article 51 and as such the use of coercive measures against Afghanistan was illegal. The use of force in Iraq was mainly based on the doctrine of pre-emptive force which is alien to international law. The USA and its coalition partners also acted in contravention with the jus ad bellum in this regard. The author poses certain proposals in relation to the jus ad bellum and stresses the importance of article 2(4) which must ensure that international relations are not once more regulated by the use of armed force. 

Part 3 The Post 9/11-Era (2001–), 49 The Iraq War—2003

2018 ◽  
Author(s):  
Weller Marc
Keyword(s):  
Iraq War ◽  
Final Section ◽  
Use Of Force ◽  
Cumulative Effect ◽  
Legal Framework ◽  
International Community ◽  
Legal Basis ◽  
Jus Ad Bellum ◽  
The Us ◽  
Further Development

This contribution discusses the Iraq War of 2003. It begins by setting out the facts and context of the US and British invasion. It then considers the legal justifications put forward by the intervening states and assesses the reaction of the international community to these events. It then tests the legality of the intervention against the international legal framework governing the use of force as it stood at the time of the events. In particular it considers whether UNSC Resolution 1441 provided a legal basis for the use of force against Iraq. The final section examines if, and to what extent, the case had an impact on the further development of the jus ad bellum. The Iraq War of 2003 did indeed have an effect on the erosion of the prohibition of the use of force, however it was a cumulative effect, rather than an immediate and decisive one.

Part 1 The Cold War Era (1945–89), 5 The Soviet Intervention in Hungary—1956

2018 ◽  
Author(s):  
Lieblich Eliav
Keyword(s):  
Cold War ◽  
International Law ◽  
Real Time ◽  
Use Of Force ◽  
Warsaw Pact ◽  
Jus Ad Bellum ◽  
Soviet Invasion ◽  
The Cold War

In late October 1956, the Soviet army crushed a burgeoning rebellion in Hungary, ostensibly upon the invitation of the Hungarian government, and allegedly in conformity with the provisions of the Warsaw Pact. While the intervention was widely condemned, international law could not prevent the Soviet invasion nor secure the USSR's withdrawal from Hungary. Seven decades later, this Chapter analyses the Soviet intervention under jus ad bellum. It focuses on the positions of relevant actors in real-time, as well as on the enduring aspects of the affair. As the Chapter reveals, the Hungary intervention presented dilemmas that plague the law on the use of force even in contemporary times. It raised questions that remain burning today, such as the role of consent in legalizing external forcible intervention, the ability of international law to face superpowers, and the dialectics between effectiveness and legitimacy in the determination of lawful authority during internal strife.

The Use of Force in United Nations Peacekeeping Operations

2016 ◽  
Author(s):  
Scott Sheeran
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Authority ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Basic Principles ◽  
Peacekeeping Operations ◽  
Jus Ad Bellum ◽  
Un Peacekeeping ◽  
Conceptual Foundations

This chapter focuses on the nature, scope, and legitimacy of the use of force by UN peacekeeping operations within the framework of international law. Before clarifying the legal authority of UN peacekeepers to use force, it considers the historical and conceptual foundations and development of the use of force in UN peacekeeping. It then outlines the normative framework for use of force, including the categorization and legal bases for use of force under international law, and its relation to the jus ad bellum. The chapter also discusses the ‘basic principles’ of UN peacekeeping, namely consent of the main parties to the conflict, impartiality, and non-use of force except in self-defence, along with the goals of protecting civilians and responding to violations of international human rights law. Finally, it analyses the operational and practical challenges that arise due to the legal problems resulting from the use of force by UN peacekeepers.

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.

7. Law, Politics, and the Use of Force

2018 ◽  
pp. 108-126
Author(s):  
Justin Morris
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
International Politics ◽  
Use Of Force ◽  
Apparent Paradox ◽  
Power Politics ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Legal Constraint ◽  
Self Interest

This chapter examines the place of international law in international politics, with particular emphasis on whether legal constraint is effective in averting or limiting the use of force by states. It begins with a discussion of the efficacy of international law in regulating the behaviour of states, focusing on the so-called perception–reality gap in international law. It then considers various reasons why states obey the law, from fear of coercion to self-interest and perceptions of legitimacy. It also explores the role and status of breaches of international law in international politics as well as the functions of the two laws of armed conflict, namely, jus ad bellum and jus in bello. Finally, it analyses the apparent paradox of legal constraint on warfare in relation to power politics and the mitigatory effects of norms governing the conduct of war.

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