WEEK 8
International Law and the Use of Force
DOÇ. DR. EROL KALKAN
CRITERIA OF JUST WAR
• İn pre-Westphalian Europe, the principle normative framework for legitimizing resort to
force was the moral doctrine of Just War, a feature of faith-based Natural Law
Be authorized by a sovereign prince
•Be waged for just purpose
•Be pursued for just intent
•Only be waged as an ultimate resort
•Be proportionate
•Only proceed if there is a good chance of success
•Be formally declared
•Be conducted in accordance with the laws of war
Article 2(4) All states are to refrain from the use of
force
UN CHARTER Article 2(7) Codifies the principle of non-interference
within the domestic jurisdiction of any state
FRAMEWOR
K FOR THE Chapter VII Exceptions to the ban
on the use of force:
USE OF Article 7(51) Right to self-defence as an exception to
FORCE Article 2(4)
Article 7(42) Allows the Security Council to initiate
military sanctions for enforcement purposes
Cardinal principles:
The use of force must be necessary
CRITERIA
FOR SELF- The use of force must be proportionate
DEFENCE
Secondary principle:
• If force is used in self-defence in anticipation of an
attack, that attack must be imminent for defence to be
lawful
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.
UN Charter, Chapter VII, Article 51
CONTRASTING
INTERPRETATIO
NS OF ARTICLE • Inherent right implies that the pre-existing customary
51 right of anticipatory self- defence is incorporated in the
Article
• If an armed attack occurs implies that the right to self-
defence is conditional on the attack having actually
materialized
HUMANITARIAN INTERVENTION
ANTICIPATION, PRE-EMPTION AND PREVENTION
Capability + Immediate intent = Imminent threat
Capability + No immediate intent = No imminent threat No capability + Intent to obtain =
No threat
Anticipatory self-defence (lawful)
Pre-emption (unlawful)
Preventive war (unlawful unless authorized by UN Security Council)
HUMANITARIAN INTERVENTION AND UN REFORM
• 1999: Kosovo Intervention by NATO without UN Security Council mandate
2001: Report of the International Commission on Intervention and State
Sover-
• eignty, Responsibility to Protect
• 2004: Secretary General’s High Level Panel report, A More Secure World: Our
• Shared Responsibility
• 2005: Secretary General’s report to Member States, In Larger Freedom:
Towards
• Development, Security and Human Rights for All
• 2005: UN Summit – no further progress
Terrorism
• THE TERRORISM DEFINITION DEBATE
• No agreed definition
• Convergence: use or threat of violence/political nature of action/fear
• Non-state actors
DIFFICULTIES OF DEFINITION
• • States?
• Different variants
• Pejorative term
• ‘One man’s terrorist is another man’s freedom fighter’
TYPOLOGIES OF TERRORISM
• Nationalist/separatist: PIRA, ETA
• Left and right wing: Italian Red Brigades, Action Directe, NPC
• Religious: Hamas, Hizballah, Islamic Jihad, Al Qaeda
• AL QAEDA
• Ideology: Anti-Western, anti-Semitic, territorial, Islamic
• Structural organization: Franchise terrorism, three tiers, global reach
• Recruitment: Afghan/Pakistan border, Internet, willing recruits,
kinship
COUNTER-TERRORISM: THE RANGE OF RESPONSES
• SOFTER OPTIONS
• Tackling perceived root causes, plus negotiation
• Tackling poverty and inequalities (but many are middle class)
• Nature of political repression (by more liberal democratic model, but
there is no evidence of a strong relationship)
THE MILITARY AND COUNTER-TERRORISM
• MILITARY OPTIONS
• • Prevent • Deter
• Coerce • Disrupt • Destroy
