#17202 - International Humanitarian Law Authorization And Use Of Force

For treaties, I have used an abbreviation, followed by a period and the article number. Thus Geneva Convention IV, Article 42 becomes “GC4.42.” Article 2 Common to the Geneva Conventions becomes GC.CA2. The Hague Regulations are HR, and the Protocols Additional to the Geneva Conventions are AP1 & AP2.

Citations in the form “HB000” refer to section numbers in Fleck, The Handbook of International Humanitarian Law (3rd ed.).

I’ve also cited certain academic articles, commentaries and government documents:

ILA-Sydney refers to the International Law Association’s 2018 Sydney Conference Report on the Use of Force.

Sassòli refers to Marco Sassòli’s 2015 article “Combatants” in the Max Planck Encyclopedia of Public International Law.

DoD refers to the US Department of Defense Law of War Manual (Dec. 2016 Update).

ICRC guidance on civilians directly participating in hostilities refers to Nils Melzer (ICRC) Interpretive Guidance (2009).

Lubell refers to Noam Lubell, “Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups” 93 International Legal Studies 215 (2017).

**This is all IAC stuff, not NIAC!**

There is no jus ad bellum, IHL or other international law (except to the extent IHRL is applicable) on when a state can engage in armed conflict against non-state.

The Purposes of the United Nations are:

To maintain international peace and security, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
To be a centre for harmonizing the actions of nations in the attainment of these common ends.

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles:

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles:
The Organization is based on the principle of the sovereign equality of all its Members.
All Members, in order to ensure, to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
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.
All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII of the United Nations Charter.

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 41 and 42, to maintain or restore international peace and security.

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

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.

Art. 2(4) is jus cogens [ILA-Sydney].
- Coercive measures per se are not prohibited, though they may violate the principle of non-intervention.
  - As confirmed in the Friendly Relations Declaration, Art. 2(4) is generally accepted as referring to armed or physical force. Cyber warfare poses a challenging uncertainty.
  - It also applies to indirect force such as arming rebel groups.
  - It does not apply to economic or purely political measures.
- There may be a de minimis threshold.
  - Law enforcement operations such as maintaining fisheries jurisdiction does not qualify.
Security Council resolution
- No such thing as implied authorization.
- Magic words are “all necessary means.”
- Council should be clear on breadth of authorization. The US made a “revival argument” with regard to Iraq in 2003, in reference to old authorizations.
- UNSC resolution may trump IHL, including neutrality obligations or occupation laws [HB210].
- UNSC R. 2249 (20 November 2015) determined ISIS/al Qaeda constitutes a threat to international peace and security, and called upon states to take all necessary measures against to suppress and eradicate the safe have in Iraq and Syria.
Individual or collective self-defense
- Collective self-defense entails a second state joining in the forceful self-defense of a first state that has been the victim of an armed attack, at the invitation or request of the first state.
  - Collective self-defense is lawful where individual self-defense would be lawful.
  - Easy cases are the self-defense is on a state’s own territory. It was more controversial where Iraq asked other to join in self-defense measures on the territory of another country, Syria.
Humanitarian intervention (contested)
- If HI occurs through a Chapter VII resolution, it is not a true exception.
- In the absence of a Ch. VII reso., the arguments are that a humanitarian emergency (genocide, etc.) is an attack on all states, or that it is not “inconsistent with the Purposes of the UN.”
  - This idea is highly contested, not accepted as doctrine.
- A distinction should be drawn between legitimacy and legality.
Consent (not a true exception)
- Where State A uses force on the territory of State B at State B’s request, this...

#17202 - International Humanitarian Law Authorization And Use Of Force Jus Ad Bellum - International Humanitarian Law / Law of Armed Conflict

About Oxbridge

More International Humanitarian Law / Law Of Armed Conflict Samples