After Bangladesh: The Law of Humanitarian Intervention by Military Force

1973 ◽  
Vol 67 (2) ◽  
pp. 275-305 ◽  
Author(s):  
Thomas M. Franck ◽  
Nigel S. Rodley
Keyword(s):  
Human Rights ◽  
International Law ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Self Determination ◽  
Military Force ◽  
Armed Attack ◽  
Self Defense ◽  
The Law

In the Bangladesh crisis, two important objectives of international law appeared to be in conflict: that of peace and that of justice. The former objective is set out in the rules of the U.N. Charter against the use of force by states except in self-defense against an armed attack. The second is found in the provisions of the Charter and in various resolutions, declarations, and covenants pertaining to fundamental human rights and self determination.

Necessity and Proportionality in International Peace and Security Law

2020 ◽  
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Military Force ◽  
Post Conflict ◽  
Self Defense ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Principle Of Proportionality

Necessity and proportionality hold a place in the international law governing the use of force by states and in the law of armed conflict (LOAC). However, the precise contours of these two requirements are uncertain and controversial. This book explores in 5 parts how necessity and proportionality manifest under the law governing the use of force and the LOAC. First, the book introduces the reader to how necessity and proportionality factor in the debate about the interaction between morality and law in the use of military force. Second, the book addresses the issue of how proportionality in the law governing the use of force relates to proportionality in the LOAC. Third, the book addresses a number of pressing legal issues including: how proportionality and necessity are linked under international law, the controversial “unwilling and unable” test, drones and targeted killing, their application during civil war, and the need for further transparency in states’ justification for the use of force in self-defense. Fourth, the book analyzes the role of military necessity within the LOAC on the battlefield. This includes discussions about the history and nature of the principle of military necessity, the proper application of the principle of proportionality, how commanders should account for mental harm in calculating proportionality, and the role artificial intelligence and autonomous weapons systems may play in a proportionality analysis. Finally, the book concludes with a discussion on the potential role of proportionality in the law governing post-conflict contexts.

Frontiers of International Law, Part One: The Chechen People, Continued

1997 ◽  
Vol 10 (1) ◽  
pp. 16-20
Author(s):  
René Lefeber ◽  
David Raič
Keyword(s):  
Human Rights ◽  
International Law ◽  
Self Determination ◽  
Military Force ◽  
Right To Life ◽  
Customary International Law ◽  
Parent State ◽  
The People ◽  
The Law ◽  
The Right

We agree with André de Hoogh that the Chechens did not possess a right to external self-determination prior to the massive indiscriminate use oi military force by Russia in December 1994. At no point have we argued or suggested otherwise. Hence, up to December 1994, the Chechen claim did indeed not meet the conditions set by paragraph seven of the Friendly Relations Declaration. However, the Friendly Relations Declaration needs to be interpreted in view of usus and opinio iuris. In other words, one has to analyse how this paragraph has developed in customary international law. According to our analysis of the law of self-determination, the emergence of a right to external self-determination depends on two cumulative conditions, viz. 1) the serious and persistent violation of the right to internal self-determination and 2) the exhaustion of all total and international peaceful remedies by the people concerned to effectuate its right to internal self-determination. These conditions must be deemed fulfilled if the parent state seriously and massively violates the fundamental human rights and freedoms – in particular by an arbitrary violation of the right to life – of the persons belonging to the people concerned.

scholarly journals The Challenge of Cyber Attacks in the “Information Age” and the Jus Ad Bellum

2019 ◽  
Vol 5 (2) ◽  
pp. 79
Author(s):  
Pshtiwan Mohammed Qader
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Information Age ◽  
Cyber Attacks ◽  
Armed Force ◽  
Critical Infrastructures ◽  
Cyber Attack ◽  
Armed Attack ◽  
Self Defense ◽  
The Right

The present paper examines the problem of cyber-attacks under existing international law. It takes the view that the (United Nations) UN Charter provisions on the use of force can be extended to cyber-attacks by means of interpretation although the relevant provisions do not explicitly address such issue. This Article argues that cyber-attacks resulting in material damage or destruction to property, death or injury to persons, or severe disruption of the functioning of critical infrastructures can be characterized as use of armed force and therefore violate the prohibition contained in article 2(4) of the Charter. However, cyber-attacks not resulting in the above consequences may be illegal intervention in the internal affairs of other states if such attacks are coercive in nature. In addition, the current study discusses that a cyber-attack which amounts to a use of armed force per se is not sufficient to give the victim state the right to self-defense, unless its scale and effects are equivalent to those of a conventional armed attack. Finally, the study concludes that an international cyber treaty is truly necessary to more effectively address cyber-attacks.

The Dilemma of Humanitarian Intervention: The Executive Power of the Law of Nature, After God

1994 ◽  
Vol 29 (2) ◽  
pp. 248-261 ◽  
Author(s):  
John Dunn
Keyword(s):  
International Law ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Executive Power ◽  
Human Being ◽  
Law Of Nature ◽  
Territorial Jurisdiction ◽  
Or Groups ◽  
The Law

There are at Least Three Possible Types of View about the justifiability of the use of force by states or private individuals on behalf of other private individuals or groups who are the victims of brutal and gratuitous coercion by another state. The first type of view is that no human being, and a fortiori no state, can be justified in using force under any circumstances and for any purpose, because (and only because) force is an intrinsic evil. This unflinchingly deontological view is generous but practically absurd. The second type of view is that states (or even private individuals) can be, and often arc, justified in using force against the brutally coercive actions of another state when, but only when, the latter is acting outside its own territorial jurisdiction. At least in the case of states what grounds that justification is their entitlement to defend themselves against foreign (as against domestic) aggression, and to defend also any other states with whom they have linked themselves either by standing alliances or by solemn common undertakings to secure each other's safety and sovereignty within the bounds of international law. In the case of private individuals, the corresponding justification would lie in their several personal entitlements to defend themselves as best they can against aggression.

Introduction

2017 ◽  
Author(s):  
Fernando R. Tesón ◽  
Bas van der Vossen
Keyword(s):  
International Law ◽  
Just War ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Just War Theory ◽  
Self Defense ◽  
Collective Self

We introduce general concepts of just war theory and describe different kinds of war: national self-defense, collective self-defense, and humanitarian intervention. After laying down the conditions for the justification of humanitarian intervention, we highlight some of our differences. We conclude with an outline of the international law of use of force and some jurisprudential themes that bear on the current humanitarian intervention debate.

scholarly journals Three Grotian Theories of Humanitarian Intervention

2015 ◽  
Vol 16 (2) ◽  
Author(s):  
Evan J. Criddle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Natural Law ◽  
Humanitarian Intervention ◽  
First Century ◽  
Responsibility To Protect ◽  
Self Defense ◽  
The People ◽  
Hugo Grotius ◽  
Law Of Nations

AbstractThis Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights.

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. 

From Humanitarian Intervention to the Responsibility to Protect

2018 ◽  
Author(s):  
Kurt Mills ◽  
Cian O’Driscoll
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Just War ◽  
Humanitarian Intervention ◽  
Use Of Force ◽  
Humanitarian Assistance ◽  
Responsibility To Protect ◽  
Self Determination ◽  
World Summit ◽  
The World

In contrast with humanitarian access or the provision of humanitarian assistance, humanitarian intervention is commonly defined as the threat or use of force by a state to prevent or end widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied. In support of their cause, advocates of humanitarian intervention often draw upon and reference the authority of the notional “just war.” The four main ways by which humanitarian intervention has been connected to the idea of the just war relate to the ideals of self-determination, punishment, responsibility, and conditional sovereignty. For a humanitarian intervention to be considered legitimate, there must be a just cause for intervention; the use of force must be a last resort; it must meet the standard of proportionality; and there must be a good likelihood that the use of force will contribute to a positive humanitarian outcome. The historical practice of humanitarian intervention can be traced from the nineteenth century to the recognition of the Responsibility to Protect by the World Summit in 2005 and its application in Darfur. Major conceptual debates surrounding humanitarian intervention include the problematic relation between sovereignty and human rights, the legal status of intervention, the issue of multilateralism versus unilateralism, and the quest for criteria for intervention.

Autointerpretation, Competence, and the Continuing Validity of Article 2(7) of the UN Charter

1977 ◽  
Vol 71 (1) ◽  
pp. 60-83 ◽  
Author(s):  
J. S. Watson
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Use Of Force ◽  
Self Determination ◽  
Fertile Ground ◽  
Protection Of Human Rights ◽  
The United Nations

With the failure of the United Nations to control the use of force by states to the degree that many had wished for, the attention of many commenators shifted to what was hoped would be more fertile ground—the protection of human rights, self-determination, and other areas in which the organization might play a supranational role. In discussing the development of the supranational aspect of the organization, attention is invariably directed to Article 2(7) of the Charter which is, of course, the current symbol of sovereignty. Since most visionaries are frustrated by the concept of sovereignty, it is not surprising that this article has received little sympathy on the part of many who are more concerned with ends than means. Yet it is doubtful whether the concept may be dismissed summarily and, since it plays such a key role in so many of the allegedly developing fields of international law, one would do well to consider how Article 2(7), properly interpreted, affects the legal assumption on which supranationalism is based.

16. Humanitarian Intervention and Political Self-Determination

2021 ◽  
pp. 233-248
Author(s):  
William Abel ◽  
Elizabeth Kahn ◽  
Tom Parr ◽  
Andrew Walton
Keyword(s):  
Human Rights ◽  
International Law ◽  
Humanitarian Intervention ◽  
Moral Values ◽  
Self Determination ◽  
Just Cause ◽  
Permissive Attitude

This chapter argues that there is a just cause to intervene militarily in a state that systematically violates the human rights of its members. It rejects the views of those who contend that there is no justification for humanitarian intervention because there are no universal moral values. The chapter accepts that the value of political self-determination can explain what is wrong with humanitarian intervention in some cases. However, appeals to this value are decisive less often than many critics of intervention suppose. One concern with adopting a permissive attitude towards humanitarian intervention is that this might be open to misuse. The chapter then articulates a role for international law in authorizing intervention to minimize this risk. It concludes by clarifying how these arguments fit within a wider set of considerations pertinent to the justifiability of humanitarian intervention.

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