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Time for Revision and Reinterpretation Report (Assessment)

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Updated: May 11th, 2021

Executive Summary

Numerous outbreaks of military actions in the twenty-first century have been conducted in different contexts with a wide range of legal justifications many of which violated legal grounds outlined by Article 51 of the Charter of the United Nations. The violations have risen from a broad scope of disagreements on the legality of the use of force, which led to dangerous developments undermining the sovereignty of some states. Among the litany of problems associated with the derogations of the extant normative framework on the use of force the most prominent are breaches of international peace and security, violations of ceasefire commitments (the US in Iraq), interferences in domestic affairs of sovereign states, and aggressions against territorial sovereignty of states. There is also a need to promptly exercise the use of force for humanitarian purposes. Therefore, the suggested revisions are:

  • to introduce the doctrine of retrospective approval of the use of force by the council;
  • to introduce the concept of anticipatory self-defense in the international law to deal with the problem of terrorism;
  • to make provisions in the international law accounting for cyber-attacks that cause physical damage.

Introduction

The twenty-first century poses numerous challenges for long-standing pillars of the international legal paradigm with respect to the justifications for the use of force. The current pattern of the international regulation of military engagements has emerged in 1945 with the signing of the Charter of the United Nations or UN Charter (Miller 2016). The charter outlined a set of principles governing the international relationship, in general, and the use of force, in particular. From the charter’s entry into force onwards, there has been an unceasing effort to strengthen the international legal framework to restrict the unilateral use of force. Despite thorough attempts of the United Nations Security Council (UNSC) to enforce just ad Bellum principles, a number of gross violations occurred: Israel in Uganda in 1976, Russia in Georgia in 2002, NATO in Kosovo in 1999, and the US in Iraq in 2003 among others (Maogoto 2013; Petreski 2015). The current situation leads to massive casualties and human suffering. For example, the US-led invasion of Iraq results in approximately 460, 000 deaths (Maogoto 2013). Therefore, there is a pressing need to review legal justifications for the use of force in the international arena.

The paper will discuss the current state of international law on the use of force. It will be argued that justifications of the legitimacy of the use of force in the international community should be revised to eliminate their misuse, ensure that preventable humanitarian catastrophes do not occur, and increase states’ capacity for self-defense against terrorist organizations.

Problem

The existence of multiple interpretations of penumbral areas of the international law on the use of force in the international arena has led to multiple armed attacks against sovereign states. The viability of the current international legal framework has repeatedly been challenged by the actions of states such as Israel, the US, and Russia among others (Petreski 2015). Such actions have been motivated by political expediency rather than by the principles of legality. The line between legal and illegal grounds for engaging in military actions had been crossed by states whose involvement in military operations has been decried by the international community. Despite universal condemnation or lack thereof, it is impossible to deny that multiple interpretations of the international legality of the use of force exist. These interpretations give rise to interferences in domestic affairs of sovereign states and armed attacks.

Use of Force

There are many examples of the illegal use of force by states that stem from ambiguities in the international legal framework.

The US. The US involvement in Syria’s civil war can be considered a prima facie violation of the Charter of the United Nations. A recent report by the Congressional Research Service points to the rise of the Islamic State as the reason for the provision of military assistance to anti-government insurgents (Humud, Blanchard & Nikitin 2017). The report reveals that more than two million Syrians have been displaced into neighboring territories and European states since 2011 (Humud, Blanchard & Nikitin 2017). It follows that the pursuit of regional security by the US has contributed greatly to the international displacement of Syrians and the continuation of the conflict. To explain this point, it is necessary to draw attention to Russia’s role in the civil war.

Russia. Putin’s support of the Assad regime instantiates a gross violation of the prohibition against interferences in domestic affairs of sovereign states. The intervention can be regarded as an attempt to regain influence in the Middle East (Notte 2016). Russia presented its actions to the international community as such that aim at the restoration of “intra-Muslim unity” (Notte 2016, p. 62). It is notable that the invocation has been met with much international criticism despite the fact that the US involvement in the country’s affairs and military support of insurgent forces also lacks solid legal justifications. Moscow’s power play in the country poses a challenge for international peace and security and further exacerbates the migrant crisis in Europe (Hatton 2017).

Israel. The inadequacy of the international legal system with respect to the use of force by states is highlighted by Israeli aggression in Uganda. In 1976, Israel got involved in Ugandan internal affairs by using force on its territory (Warren & Bode 2014). The involvement started with the hijacking of an Israeli jet with 250 people aboard (Warren & Bode 2014). In the attempt to free its citizens Israel started an operation in which several hijackers and Ugandan soldiers were killed. The violation of the country’s sovereignty was justified by the Israeli government but condemned by the international community.

These cases show that the problem with the current legal justifications of the use of force in the international arena is that the existing ambiguities in the international legal framework make possible violations of Article 2 of the Charter of the United Nations. However, the problem is two-pronged. On the one hand, the current state of international law makes possible the unilateral use of force on foreign territories. On the other hand, lack of agreement between states on the legitimacy of military intervention can result in the occurrence of grave atrocities, which can be prevented by limited armed action.

Origins and Causes

The causes of the problem can be connected to the ambiguities of the international law on the use of force by states. According to Article 2 of the Charter of the United Nations, “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” (cited in Dworkin 2013, p. 7). Very narrow interpretations of the article have been proposed by many states as justifications for the use of force on sovereign territories.

NATO. The central norm for the use of military action has been first challenged by NATO. In 1999, the military alliance was entangled in a conflict in Kosovo (Jura 2013). NATO pursued the goals of ending all military action in the country and reestablishment of its political framework. The recourse to force was in the absence of the Security Council’s approval. Moreover, NATO did not even seek to obtain authorization from the council. It can be argued that the action was in violation of the principles of international law. In support of the military operation, which involved protracted bombings, NATO issued a resolution claiming that the intervention was justified because of “overwhelming humanitarian necessity” (Jura 2013, p. 115). The alliance also put forward an argument that there were “no practicable alternatives to the use of force” (Jura 2013, p. 116).

The argument provided for the devastating military action was based on the legal pillars developed after the enactment of the Charter of the United Nations, which were not completely aligned with its principles. Specifically, under the 1949 Geneva Convention, crimes against humanity constitute grounds for military intervention (International law n.d.). It has to be borne, however, that Article 2 of the charter does not have provisions for the preventive use of force in the circumstances under discussion. In addition, such action can be vetoed by the UN Security Council. These two facts were used by NATO in building the case for support of the legitimacy of its intervention. The argument throws light on the inadequacy of the legal international framework. This inadequacy can be manifested in two ways.

  • the justification can be misused by NATO to interfere in the affairs of sovereign states, thereby undermining legal inhibitions against military actions on the international arena;
  • the lack of reliable legal instruments to regulate military interventions in the case of humanitarian catastrophes can result in atrocities that are not prevented by the international community despite its physical capacity to intervene.

Self-defense. Some countries justify military involvements by resorting to the self-defense line of arguing. Israel’s use of military force in Uganda was justified on the basis of self-defense. The Israeli government put forward an argument that the force was used by the state to protect its citizens (Petreski 2015). A convincing majority of players in the international arena disagreed with the justification and condemned the act. States that did not decry the use of force by Israel were not defending it on legal grounds. According to Article 51, “measures taken by Members in the exercise of the right of self-defence […] should not affect in any way the authority and responsibility of the SC in maintaining international peace and security” (Petreski 2015, p. 7). It means that the use of force in self-defense against an aggressor on its territory is prohibited. However, until due investigative actions and countermeasures are taken by the Security Council, substantial damage can be inflicted by the aggressor.

To illustrate the extent to which the cause of the problem is rooted in the self-defense argument, it is necessary to consider Russia’s aggression in Georgia. In 2002, Moscow used the justification to act on behalf of its nationals in the foreign state (Karagiannis 2014). Notwithstanding the condemnation of the international community, Russia participated in cross-border firing between two regions of Georgia and even recognized their independence later. A similar line of reasoning was invoked to justify the legality of the incursion in Crimea. Russia eschewed its legal obligations to refrain from the use of force against Ukraine and violated its borders on the basis of the protection of its nationals. Under Article 51 of the charter, it is legal to resort to an armed attack in the case of self-defense (Marxsen 2016). However, it is ambiguous whether a state has the right to use force for the protection of its nationals on foreign territories. The ambiguity has already resulted in several armed attacks by Russia on foreign states, which have been disguised as rescue operations.

Threats and Dangers

Lack of Humanitarian Intervention

The ambiguities of the current international legal framework on the use of force by states can result in the lack of humanitarian intervention that can alleviate the degree of human suffering in countries engulfed by civil conflicts and other acts of mass violence. A case in point is the Kosovo conflict that was stopped with the help of international intervention. If NATO sought a solid justification for its involvement in the conflict, it would have failed. It follows that the ambiguity of the international law on humanitarian intervention can lead to the occurrence of preventable humanitarian catastrophes.

Inappropriate Use of Military Action

The existence of contradictory interpretations of the current international legal framework on the use of force by states can result in the inappropriate exercise of military action. Several states have already exercised their military power without the approval of the Security Council.

Dilemmas and Difficulties

Those seeking to remedy the situation will have to address the issue of modern security threats such as terrorism, cyberterrorism, and the proliferation of weans of mass destruction. In addition, it is necessary to consider the necessity to prevent or alleviate humanitarian catastrophes. The need can further extend the existing boundaries of international law, thereby opening new avenues for misuse of military action. The concept of imminence, which will be discussed in the following section is also associated with numerous legal difficulties.

Recommendations

Humanitarian Intervention

To ensure that humanitarian catastrophes do not occur without an intervention from the international community it is necessary to introduce the doctrine of retrospective approval of the use of force by the council. By doing so, humanitarian interventions such as one in Kosovo can be conducted within the legal framework of international law. Recourse to military power is a real concern in modern time; nonetheless, it is necessary to ensure that states do not fail to adequately respond to humanitarian catastrophes by trying to stay within the boundaries of the law.

Self-Defence

It is needed to redefine the right of self-defense, which is too restrictive under the Charter of the United Nations. Specifically, it is recommended to introduce the concept of anticipatory self-defense to deal with the problem of terrorism. The existence of transnational terrorist organizations necessitates the use of force that can avert potential attacks on states (Scharf 2016). Therefore, international law should recognize the legality of the proportional use of military power against imminent threats. However, the concept of imminence should be clearly defined to ensure that the provision is not misused as in the case of the US in Iraq.

Cyber-Attacks

International law should be changed to account for cyber-attacks that cause physical damage. Under Article 2(4), only those attacks that result in physical damage are considered illegal by international law (Remus 2013). Therefore, it is necessary to change the regulatory framework of the international community to ensure that states can engage in legal self-defense. A case in point is a virus attack launched by the US against Iraq (Remus 2013).

Policy Implications

When revising the existing legal justifications for the use of force, it is necessary to ensure that the principles enshrined in the Charter of the United Nations are not changed. The immediate effect of the revision is the establishment of a more rigid framework governing the exercise of force by states that do not seek the authorization of the Security Council. In addition, states (Israel in Uganda) will be able to protect their direct interests without legal consequences. Most importantly, if the Security Council does not authorize military action to alleviate a humanitarian catastrophe, individual states can do so. It has to be borne in mind, however, that beyond suggested revisions there is no need to radically transform the extant legal justifications for the use of force by states.

Conclusion

The paper has argued for the change of the current legal justifications for the use of force by states. The importance of the suggested revisions is underscored by numerous humanitarian catastrophes and misuses of military power that occurred since the enactment of the Charter. By introducing the changes, the international community will be able to quickly act on its moral obligation to protect people around the globe from genocide and crimes against humanity. It will also help to reinforce the ability of states to respond to modern threats of terrorism and cyberterrorism within the boundaries of international law.

Reference List

Dworkin, R 2013, ‘A new philosophy for international law’, Philosophy & Public Affairs, vol. 41, no. 1, pp. 1-30.

Hatton, TJ 2017, ‘Refugees and asylum seekers, the crisis in Europe and the future of policy’, Economic Policy, vol. 32, no. 91, pp. 447-496.

Humid, CE, Blanchard, CM & Nikitin 2017, , Web.

, n.d., Web.

Jura, C 2013, ‘Observations on the intervention of NATO in Kosovo’, International Journal of Juridical Sciences, vol. 14, no. 2, pp. 114-119.

Karagiannis, E 2014, ‘The Russian interventions in South Ossetia and Crimea compared: military performance, legitimacy and goals’, Contemporary Security Policy, vol. 35, no. 2, pp. 400-420.

Maogoto, JN 2013, Battling terrorism: legal perspectives on the use of force and the war on terror, Ashgate Publishing, Farnham.

Marxsen, C 2016, ‘The Crimea crisis from an international law perspective’, Kyiv-Mohyla Law and Politics Journal, vol. 2, pp. 13-36.

Miller, LB 2016, World order and local disorder: the United Nations and internal conflicts, Princeton University Press, Princeton, New Jersey, NJ.

Notte, H 2016, ‘Russia in Chechnya and Syria: pursuit of strategic goals’, Middle East Policy, vol. 13, no. 1, pp. 59-74.

Petreski, M 2015, ‘The international public law and the use of force by the states’, Journal of Liberty and International Affairs, vol. 1, no. 2, pp. 1-9.

Remus, T 2013, ‘Cyber-attacks and international law of armed conflicts; a “jus ad bellum” perspective’, Journal of International Commercial Law and Technology, vol. 8, no. 3, pp. 179-189.

Scharf, M 2016, , The Conversation, Web.

Warren, A & Bode, I 2014, Governing the use-of-force in international relations: the post-9/11 US challenge on international law, Palgrave Macmillan, Hampshire.

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