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- Use of force by states
- On the Principle of Non-Use of Force in Current International Law
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Not a MyNAP member yet? Register for a free account to start saving and receiving special member only perks. Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Subsequent actions included direct cyber attacks against Estonian targets, including government and commercial Internet infrastructure and information systems such as the those of the President, Prime Minister, Parliament, State Audit Office, ministries, political parties, banks, news agencies, and Internet service providers. They involved denial of service DoS , distributed denial of service DDoS , defacement and destruction.
Use of force by states
We are very grateful to Professor Claus Kress for this essay on the international legal framework governing the use of force. His analysis is a true tour de force that we believe will add significantly to the work of experts, students of international law, policymakers, journalists, and others who confront these issues.
Recent events in the same geographic region awaken the memory of this question. It would be decidedly too complimentary to claim that the US government made a serious attempt to justify its use of force under international law in its statement in the UN Security Council. Nor do the laconic factual assertions in the letter from the Turkish government to the President of the UN Security Council regarding its military operation in Kurdish-controlled areas of Syria, which commenced in , give the impression that Turkey placed any significant emphasis on the prohibition of the use of force in its deployment decision.
With all this in mind, one is tempted to say that the death knell of the prohibition of the use of force resounds even louder today than it did nearly fifty years ago, when Franck asked his alarming question. Yet, it was and it remains wrong to declare the death of the prohibition of the use of force. While these contemporary challenges are serious, they do not represent the full picture.
The remarkable international legal diplomatic efforts of the United States after to develop and promote an international legal doctrine of individual and collective self-defense against transnational terrorist violence and the recent legal diplomacy of United Kingdom and Australia regarding their legal concerns about the justification and scope of a right to pre-emptive self-defense also testify of the continued significance States attach to the prohibition of the use of force.
Thus, for the first time in history, the international community has the opportunity to apply the sanction of criminal punishment with a certain degree of consistency in order to avert the danger of erosion of the prohibition of the use of force. It is noteworthy, however, that the criminal sanction of State leaders for aggression is linked to the central condition that the use of force by persons in such positions manifestly violate the prohibition of the use of force.
The highlighted threshold requirement suggests that the current situation of the prohibition of the use of force is not only politically sensitive but also legally complex — at any rate much more complex than it may appear from a quick reading of the relevant provisions of the UN Charter.
In fact, there has been considerable controversy over the scope of the prohibition of the use of force for as long as this norm has existed. Some formerly central points of contention have, at the least, clearly lost significant weight. But other politically significant uncertainties about the prohibition of the use of force and its exceptions are today subjects of increased discussion. Article 2 4 of the UN Charter prohibits UN Member States from using force directed against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations.
For a long time, the above-cited words gave rise to the assertion that the use of force for non-aggressive purposes — such as the protection of endangered nationals abroad or ending horrendous human rights violations — remains outside the scope of the prohibition.
In addition, during the Cold War, it was repeatedly argued that the agreed precondition for the prohibition of the use of force, or at least such a broad scope of the prohibition, had fallen away. For this prohibition, it was said, implicitly presupposed that the UN Security Council would fulfill its central task of acting effectively against disturbers of the peace on behalf of the international community.
These two lines of arguments are largely a thing of the past. In accordance with the will of the creators of the UN Charter, it is rightly no longer seriously contested that the use of force in foreign territory or against otherwise protected positions of a foreign State is subject to the prohibition of the use of force, regardless of the objective pursued by the use of force.
The claim that the smooth functioning of the UN Security Council to act constitutes a clausula rebus sic stantibus of the prohibition of the use of force is also rarely heard today. The absence of that idea from prevailing discourse is despite the fact that, after a comparatively short boom in the s, for some time now the collective security system of the United Nations has again proven less effective.
The prohibition of the use of force has however recently become the object of the debate in a number of other ways. The recent discussion about whether harmful cyber operations may violate the prohibition of the use of force has largely come to the conclusion that a use of force under international law does not depend on conventional weapons being used.
The use of the computer worm Stuxnet against Iranian nuclear facilities, which is traced back to unconfirmed reports about cooperation between the US and Israel and was made public in , offers a relevant example from the recent past. Dreadful scenarios of such operations against nuclear power plants or dams have so far fortunately remained the subject of theoretical analysis.
The latter also applies to such cyber operations that are capable of causing massive malfunctions in so-called critical national infrastructure — in the form of a collapse of the stock exchange system, for example. It is noteworthy here that the prognosis which has been heard on various occasions — and mainly, as it would seem, from western security circles — is that the State affected would classify such an act as a prohibited use of force and, moreover, as an armed attack justifying a use of force in self-defense.
This is noteworthy because it would equate a malfunction that has serious economic consequences with physical damage to the opponent. This may claim a certain intuitive plausibility in view of the vast extent of the economic damage in question. But it would mean shaking up a delicate limit to the prohibition of the use of force that has been consistently maintained since — especially by western States against the opposing demands of developing countries: the exclusion of economic coercion from the prohibition of the use of force.
On the horizon of the current discussion, the question has therefore arisen as to whether new vulnerabilities, especially in cyberspace, may lead to change in this long-known basic political pattern in the discussion about the prohibition of the use of force.
Significantly greater attention than previously has been given in recent years to the question of whether the violation of the prohibition of the use of force requires a certain intensity of harmful effects. States do not consistently condemn minimally invasive violations of territorial sovereignty as a use of force. The question of whether or under what conditions such rescue operations constitute a use of force is not immaterial.
For a use of force is more difficult to justify under international law than non-forcible intrusion in foreign territorial sovereignty. In particular, the possibility of invoking a state of necessity as a legal justification is excluded in the case of forcible measures, but not in the case of other measures.
In an evacuation such as that of German citizens from embattled Libya in Operation Pegasus , this subtle difference may prove crucial. The German government justified the use of an air force jet by claiming tacit consent of the Libyan government, since the Libyan government had not responded to a prior German request. This interpretation of the silence of the Libyan government, which at that time was clearly greatly occupied elsewhere, is not beyond question.
The German government took refuge in this somewhat shaky justification attempt because Germany was not exposed to an armed attack that would have justified a use of force in self-defense, and it was also not clear that such an armed attack was imminent.
However, in view of the rapidly escalating conflict in Libya, German nationals there were in present danger of life and limb, which, it could have been argued, created a state of necessity for Germany under international law. If the speedy evacuation of the threatened nationals had remained below the threshold for a use of force due to its minimally invasive character, the German government would have had a plausible necessity argument.
This is because the evacuation, as things stood, was necessary to avert the danger to fundamental individual rights, and the interference in the territorial sovereignty of Libya carried much less weight than the danger to those rights. Nevertheless, the German government did not put forward a necessity argument — perhaps because it wished to avoid making the legal claim that the prohibition of the use of force is tied to an intensity threshold. Greater attention is now also being paid to the connection of the prohibition of the use of force with the international relations of the acting State, as expressly set out in article 2 4 of the UN Charter.
The undisputed core of this norm lies in the fact that a State which maintains peace in its own territory including by use of necessary force does not use such force in its international relations.
However, it is quite uncertain how far this consideration goes. There is much to suggest that it also applies if a State enforces the applicable national law in its territorial sea or in its airspace against a private ship or private aircraft of foreign nationality through forcible means as a last resort.
In light of mixed State practice on this point, it is frequently discussed, however, in international legal scholarship whether international relations are engaged when a State, in order to prevent otherwise threatening damage, uses force as a last resort against an intruding foreign warship or military aircraft.
While these constellations of legal issues are concerned with the extent to which the focus on international relations limits the scope of the prohibition of the use of force, in the near future the question could also gain importance as to whether international relations may extend beyond the relationship between States. Conventionally, the prohibition of the use of force carries such an inter-State dimension. But this notion fails, for example, when Israel uses force in the Gaza Strip, and it is assumed that the latter is currently not subject to any State sovereignty.
Here, the practice of States displays the inclination to go beyond a rigid inter-State perspective and to also apply the protection of the prohibition of the use of force to an area which — like the Gaza Strip — constitutes part of a territorial self-determination unit under international law.
It is worth considering going even further to include in the scope of the prohibition areas which are not only State-free at the present moment, but which should remain free from State sovereignty claims permanently. Certainly, it is necessary, for example, to intensify the discussion as to whether the prohibition of the use of force limits State military activities in outer space even beyond the bounds of direct inter-State confrontation.
In doing so, closer attention will have to be given to the interplay between the principle of non-use of force and the principle not to use the outer space for other than peaceful purposes. Finally, it is accepted in principle that the prohibition of the use of force is not affected if a State has granted prior consent to another State for the use of force in its territory.
However, the recent practice of States cannot be reduced to such simple terms. Both the French intervention in Mali in at the invitation of the government which was badly harried by the Tuareg and other armed groups, as well as the interventions begun one year later by many foreign States in Iraq to fight the so-called Islamic State at the request of the Iraqi government, took place at a time when internal violence had crossed the threshold of an armed conflict.
Nevertheless, these uses of extra-territorial force met with broad international approval. More persuasive may be the idea that a government could lose its authority to invite foreign States to use force on its territory when it has provoked the armed conflict by crimes under international law against its own population or when it has systematically committed war crimes during the armed conflict.
However, the decidedly uncertain international response to the Russian intervention by invitation in Syria launched in and lasting several years shows that the international legal situation still awaits clarification.
It is at least undeniable that the commission of genocide, crimes against humanity and war crimes with the direct involvement of a government does not automatically lead to the government losing its status under international law. Thus, Syria continues to be ruled by Bashar al-Assad at the time of writing these lines. In principle, only the foreseeable permanent and complete loss of effective control over the territory in question creates the conditions for a change of recognized government under international law.
In the recent past, however, the viewpoint of democratic legitimacy has sporadically — as in Haiti in and Sierra Leone in — led to the continued international recognition of a government that had been overthrown and expelled into foreign exile.
A similar picture emerged in for the protection of an internationally-led transition process after the — actually quite effective — ousting of the Yemeni government from office.
At the end of , the international community went a step further in The Gambia and recognized the power of a democratically elected president to invite external intervention to help him achieve effective rule in place of his predecessor, who was reluctant to cede power. The last four cases have one thing in common: the UN Security Council made clear who it considered to be the government of the State in question at a material moment in time.
Thus, the Council played an indirect role in the legalization of those uses of force. By recognizing the legitimate candidate as the government under international law when there was tension between effectiveness and legitimacy, the Council afforded foreign States with the opportunity to resort to the traditional legal basis of intervention by invitation to the benefit of this candidate, without thereby taking too great an international legal risk.
However, according to the text of the UN Charter, the Security Council has much more than just an indirect role to play in the use of force: it has the authority to deploy UN forces in cases of a threat or breach of international peace.
According to the drafters of the UN Charter, after the lawful use of force under international law were to take place first and foremost in the form of genuine world police action. About three quarters of a century after the establishment of the United Nations, one looks back with reverent wonder to the idealism of its founding days.
For the idea of deploying a world police force against violators of the peace has remained a dead letter — no member State of the United Nations has placed troops directly at the disposal of the Security Council.
Unfortunately, there are no signs that this will change in the near future. With the Soviet Union soon returning to its permanent seat on the Security Council, the Council became the captive of the East-West conflict for decades. One part of international legal scholarship considered that the Council had referred to the right of collective defense of Kuwait against an armed attack.
But soon conviction spread that it was not about collective defense, but about collective security. In the absence of an international armed force, States with the appropriate readiness should re-establish world peace with the authorization of the United Nations. Politically, that was an understandable statement after the long decades of the Cold War. Subsequently, the practice of a decentralized collective security authorization model has not only been sustained, but has also been applied by the Security Council in cases of serious internal violence.
Strong objections arose only when the intervening States were later held to have abused their mandate by lending support to the violent overthrow of Gaddafi. This shows, on the one hand, that since States have managed to clarify the core of the legal framework of the lawful use of force within the context of the system of collective security established by the UN Charter.
On the other hand, the Libya case confirms the experience already gained in through the use of force by a Coalition of the Willing in Iraq, that individual cases may lead to great controversy over the interpretation of the relevant Security Council resolutions. Ultimately, however, the national interests that had profoundly diverged in this conflict proved to be decisive in the context of a recent declining willingness on the part of States to put the idea of collective security ahead of such interests.
As a result, the practice, regrettably, has now quite clearly moved away from the normative ideal of using force, as a rule, within the framework of collective security. In the more recent State practice, the debate again primarily revolves around the justification and the limits of the lawful unilateral use of force, even if the corresponding military operations are usually carried out collectively, that is by ad hoc coalitions of States.
It is all the more important to note that, in accordance with the text of the UN Charter, only the right to individual and collective self-defense is recognized as an exception to the prohibition of the use of force outside the framework of collective security.
Nothing close to a noteworthy tendency in State practice to invoke a state of necessity or a right to reprisals as the legal justification for a use of force, as had happened quite often before , can be identified today. For all that, the right of a State to defend itself individual self-defense or to defend another State at its request collective self-defense is — besides intervention by invitation — the focus of recent State practice.
For decades, the central issue was whether the right of self-defense was limited to the case of an armed attack or whether certain violations of the law below that threshold may also be averted through a use of force.
Whether States such as the United Kingdom , Israel and the United States — which on earlier occasions had advocated that article 51 of the UN Charter recognizes the broader version of the right of self-defense in conformity with pre-Charter customary international law — would today commit to a narrower reading remains uncertain. It is unmistakable, however, that today States generally attach greater importance to establishing a connection to an armed attack when they invoke the right of self-defense than in the first decades after This trend may certainly be seen as a consolidation of international peace and security law.
But it should not be overlooked that some old controversies are now being pursued in the form of a dispute over the correct interpretation of the concept of armed attack. More specifically, there is uncertainty about the intensity threshold of a use of force, the nature of the attacker, and the object of attack.
On the Principle of Non-Use of Force in Current International Law
Self-defense in Islamic and International Law pp Cite as. The right to self-defense is a natural right known and recognized since time immemorial. It is available to individuals and, after the emergence of states, to states as sovereign entities. Individual actors have historically reserved the right to use force unilaterally to protect and vindicate legal entitlements Reisman, It was a common practice for centuries to use force to settle disputes among individuals, tribes, and later on states. There are two fundamental limitations, necessity and proportionality, on the use of force under customary law since the classic case of Caroline of see Jennings, ; Waldock,
Text in PDF Format. Whereas the work of law enforcement officials 1 is a social service of great importance and there is, therefore, a need to maintain and, whenever necessary, to improve the working conditions and status of these officials,. Whereas a threat to the life and safety of law enforcement officials must be seen as a threat to the stability of society as a whole,. Whereas law enforcement officials have a vital role in the protection of the right to life, liberty and security of the person, as guaranteed in the Universal Declaration of Human Rights and reaffirmed in the International Covenant on Civil and Political Rights,. Whereas the Standard Minimum Rules for the Treatment of Prisoners provide for the circumstances in which prison officials may use force in the course of their duties,.
We are very grateful to Professor Claus Kress for this essay on the international legal framework governing the use of force. His analysis is a true tour de force that we believe will add significantly to the work of experts, students of international law, policymakers, journalists, and others who confront these issues. Recent events in the same geographic region awaken the memory of this question. It would be decidedly too complimentary to claim that the US government made a serious attempt to justify its use of force under international law in its statement in the UN Security Council. Nor do the laconic factual assertions in the letter from the Turkish government to the President of the UN Security Council regarding its military operation in Kurdish-controlled areas of Syria, which commenced in , give the impression that Turkey placed any significant emphasis on the prohibition of the use of force in its deployment decision. With all this in mind, one is tempted to say that the death knell of the prohibition of the use of force resounds even louder today than it did nearly fifty years ago, when Franck asked his alarming question.
method of contextual analysis of international documents (UN Charter, relevant UN Key words: International public law; use of force; United Nations; Security Council; NATO; Kosovo. read as a strict prohibition on any kind of use of force against another state, or the use of chezchevaux.orgpdf.
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Show full item record Statistics. International law and the use of force by states. Agius Bonnici, Antoine. The United Nations Charter sets out the general prohibition for States not to use force against the 'territorial integrity' and 'political independence' of States.
Last month, I had the pleasure and honour to deliver one of the keynote lectures at the Canadian Council of International Law Annual Conference. I am pasting the text of my lecture here. In this lecture I wish to address the question whether the law relating to the use of force — as set out in the UN Charter — has been capable, and is capable, of adapting to meet new threats and challenges facing the international community.
ТОЛЬКО В ЦИФРОВОЙ ФОРМЕ - Черт его дери! - взорвался Джабба. - Только цифровой. Нам нужно число. Он нас надул.
План неплохой. Когда служба безопасности извлечет Хейла из подсобного помещения и обвинит в убийстве Чатрукьяна, он скорее всего попытается шантажировать их обнародованием информации о Цифровой крепости. Но все доказательства к этому моменту будут уничтожены, и Стратмор сможет сказать, что не знает, о чем речь. Бесконечная работа компьютера.