TRADITIONAL USE OF FORCE LAW DOCTRINE

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• TRADITIONAL USE OF FORCE LAW DOCTRINE

Prof David K. Linnan USC LAW 783 Unit Ten
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HISTORICAL VIEW

• Medieval- just war doctrine outside
  religious community (Crusades)
•  
• Off the record
• Enlightenment- natural law doctrine leaking
  over, sovereignty connection
•  
• Off the record
• 19th century- state of war positivism
•  
• Off the record
• 20th century aggression lawful use of force
  approach develops

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100 YEARS DOCTRINE DEVELOPMENT I

• QUICK DOCTRINE OVERVIEW
• 1900 Older law, use of force okay in peace
  wartime, regulation of neutral versus belligerent
  status, legal concept of war (ultimate dispute
  resolution)
• 1919 League Charter focused on WW I problems
  (Germany invading neutral Belgium, etc.), attempt
  to restrain via Great Powers Council, retained
  war but wanted to legalize link to peaceful
  dispute resolution

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100 YEARS DOCTRINE DEVELOPMENT II

• QUICK DOCTRINE OVERVIEW (CONTD)
• 1920-1945 Failure of League, WW II, followed by
  Nuremburg Tokyo Tribunals re customary law
  outlawing of aggressive war crimes against
  humanity, idea shifts now to use of force rather
  than war status, self-defense develops in
  modern setting as technical concept alongside
  aggression aka aggressive war (e.g., for
  territorial acquisition)

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100 YEARS DOCTRINE DEVELOPMENT III

• QUICK DOCTRINE OVERVIEW (CONTD)
• 1945-1980s UN Charter system revamped League
  Covenant with political system in Security
  Council (quickly deadlocked by Cold War) but in
  which most use of force law developed on the
  self-defense side under collective assistance
  pacts (e.g., NATO Warsaw Pact), plus sponsored
  insurgencies raising indirect aggression issues,
  further development along lines of use of force
  law, legalization of self-defense in opposition
  to aggression, arguments about use of force
  against 3-P states absent armed attack under
  indirect aggression versus intervention analysis
  via sponsored insurgencies, occasional
  peace-keeping via UN blue helmets usually with
  local Security Council consent

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100 YEARS DOCTRINE DEVELOPMENT IV

• QUICK DOCTRINE OVERVIEW (CONTD)
• 1990s-date Circa ten years with original UN
  System arguably reviving then seeming lapse, but
  newer issues of state break-up including ethnic
  conflicts (former Yugoslavia), humanitarian
  intervention claims, plus failed states with
  peace-keeping vs. peace-making (Somalia), now
  anti-terrorism with arguments about preemptive
  war, disputes over internationalization under ICC

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19TH CENTURY VIEW

• 19th century laws structure (jus belli ac pacis,
  could go to
• war for any reason or no reason as a matter of
  sovereignty since Grotius, essentially as a
  dispute resolution
• mechanism)
•  
• Law of War (encompassing belligerents
  neutrals)
•  
• Law of Peace (older broader ideas of self
  preservation, economic too, including tradition
  of self-help and armed force as measures short
  of war)
• Off the record

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HUMANIZING WAR

• Background of peaceful dispute settlement
  attempts starting in 19th century (neutral
  nationality commissions of inquiry, etc. to avoid
  jingoism accidental war)
• Humanizing war (under jus in bello or
  conduct of war)
• 1856 Declaration of Paris (rights of neutral
  shipping)
• 1860 Lieber Code (General Order 100 of Union
  Army in Civil War)
• 1868 St. Petersburg Declaration on Exploding
  Projectiles
• 1899 First Hague Conventions (rules of warfare)
• 1907 Second Hague Conventions (rules of warfare)
•   Limiting war (under jus ad bellum or going
  to war)
• late 19th century pacifism tying into peaceful
  settlement attempts, linked with trying to
  eliminate aggressive war)

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LEAGUE COVENANT

• League of Nations Covenant (1919)
• Comes out of President Wilsons efforts at
  Versailles, but US never ratifies treaty due to
  fear of foreign entanglements
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• Article 10 contains modern territorial integrity
  political independence language still
  followed in UN Charter Article 2(4) (problem
  of Belgium in WWI)
• League Covenant, however, still focused on older
  war concept in terms of legal concept
• Voluntary enforcement problem led to 1930s
  collapse after Japanese in Manchuria (China)
  Italians in Abbyssinia (Ethiopia)

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KELLOGG-BRIAND PACT

• Kellogg-Briand Pact (1928)
• US participation
•  
• Still talks of war, but considered opinion is
  that it reaches all unlawful force
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• Self-defense as key concept not in the treaty,
  but its existence characterized as inherent in
  note exchanges (conceptual tie to
  sovereignty)

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UN CHARTER

• UN Charter (1945)
• Understand as drafted against background of
  failed League of Nations collective security
  system and aggressive war customary law
  articulated in parallel at Nuremburg Tokyo war
  trials (1946)
• Article 2 (1) sovereign equality concept
• Article 2(3) peaceful resolution of disputes
• Article 2(4) apparent bar of force against
  territorial integrity or political
  independence of member states
•   Article 51 self-defense pending Security
  Council action

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REMAKING OLDER LAW

• Issue of how collective security to work,
  structurally abandons older belligerent neutral
  categories in favor of aggressor others
• How does this raise implicit questions re duties
  vis-à-vis opposing aggression?

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UN SECURITY COUNCIL

• UN Security Council
• Structural version of great powers acting
  together but with veto (problem of not wishing to
  be forced to act)
• Cold War deadlock
• Self-defense under Article 51 co-exists with
  caveat that Security Council can shut it down
  (but arguments about inherent nature still)
• Security Council can force (legally) UN members
  to cooperate in departure from League of Nations
  (mandatory Chapter VII language)

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SELF-DEFENSE VIEWS

• SELF-DEFENSE DIFFERING VIEWS
• US sees customary law surviving (Caroline 1837,
  necessity of self defense is instant,
  overwhelming, and leaving no choice of means, and
  no moment for deliberation plus proportionality)
• Socialist others employs literalist focus
  reading UN Charter Article 51 as only exception
  to seemingly absolute Article 2(4) language
  (aggression definition tie)
• Continental legal science in Draft Code on State
  Responsibility (ILC) follows new doctrinal
  construct of self-defense necessity, linked to
  dualistic ideas of state law (competing with
  older precedents as Caroline, now recharacterized
  as necessity in conjunction with which force is
  not permitted under modern law principles)
• Interpretive style, text versus
  legislative history?

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ICJ TREATMENTS

• ICJ Cases
• Corfu Channel Case, limitation on strict Article
  2(4) reading
• Nicaragua Case, politically charged addressing
  indirect aggression, but literalist focus
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• Since 1980s, Persian Gulf cases filed but settled
  or inconclusive (Iran Flight 655, Oil Platforms,
  etc)

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PROPORTIONALITY

• Proportionality
• Under self-defense, part of American views but
  not Socialist views (view of not favoring
  aggressors)
• Dispute regarding proportionalitys application
  to UN-sponsored force under Security Council
  resolutions
•  
• Scale of force problem (issue in Kuwait crisis
  whether to drive Iraqis only out of Kuwait, or
  invade Iraq too, or use of atomic weapons at end
  of WWII by US to avoid estimated 500,000
  casualties invading Japanese home islands)

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UN SYSTEM EVOLUTION

• Force Within UN System as Opposed to Under
  Self-defense
• Original system of Security Council forces under
  Articles 42 43 Cold War casualty (including
  Military Staff Commission)
• US view that since Article 43 agreements never
  existed, no duty to provide milittary forces
• Smaller states prefer view since Security Council
  has no forces of its own, authorizes use of force
  and requires members states to support it either
  under best efforts reasoning or at extreme
  requiring provision of troops following
  criminalization of aggression as under Draft
  Code on State Responsibility

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USE OF FORCE

• Force Within UN System as Opposed to Under
  Self-defense
• (Contd)
• There is a basic structural issue in the Security
  Council and competing desires for large states to
  keep responses to the unlawful use of force a
  political process, while smaller states typically
  desire mandatory rules.
• Why the difference of opinion between different
  classes or groups of states?
• Is the reason the same that some states might
  give for forcing all use of force questions into
  the Security Council (e.g., trying to limit
  self-defense as a legal doctrine under intl
  law)?

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1990s NON-COMPLIANCE

• Non-compliance Issues with Security Council
  Resolutions in early 1990s Kuwait Crisis
• Problematic view neutrality may still be legal
  option
• Problems like Jordan in early 1990s Kuwait crisis
  announcing that all foreign aircraft would be
  excluded (despite SC resolution)
• Problems of impermissible support by states after
  war broke out in dispersal of Iraqi planes
  overseas in early 1990s, e.g. in Iran
• Feared terrorism attacks in early 1990s by
  extremist groups in Kuwait crisis (e.g., streets
  of foreign cities will run with blood if Iraq
  invaded, issue chiefly with PLO as state in utero
  supporting Iraq)

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SCOPE OF HELP

• Issues Re Scope of Help Required by States Not
  Fighting in Kuwait Crisis
• Financial help (Japans perennial claim cannot
  commit troops under post-WWII constitution),
  whether mandatory, and how much is enough

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KUWAIT/IRAQ/AFGHANISTAN

• WHAT IS DIFFERENT OR THE SAME IN 2003 IN IRAQ OR
  AFGHANISTAN AS OPPOSED TO FIRST GULF CRISIS IN
  1991 ON THE SIDE OF USE OF FORCE LAW?
• US vs European vs Islamic vs whatever views?
• Off the record First Gulf Crisis/Kuwait
• Off the record Iraq Afghanistan Do you
  agree? Do you agree?

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DEJA VU

• WHAT WERE THE CONCERNS VISIBLE IN US LEAGUE
  COVENANT DEBATES (1919)?
• Concerns about world executive
• Foreign entanglements
• Constitutional questions (WPA UN System issues
  now)
• Expense of war for insignificant country
• What is common stake in idea of stamping out
  aggression?

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HOW MUCH HAS CHANGED?

• HAVE CONCERNS REALLY CHANGED SINCE 1949?
• How do big versus small states feel about UN
  system versus traditional self-defense
  collective self-defense alliance (e.g., NATO)?
• How do developed versus developing countries feel
  about the UN system versus traditional
  self-defense collective self-defense alliance
  (e.g., NATO)?
• How do such concerns relate to civil wars, ethnic
  conflicts recognizing new states (eg, former
  Yugoslavia), and what about terrorism and
  indirect aggression issues buried?
• What is the place of UN peace-keeping in all of
  this?
• Do you agree? Do you agree? Do you
  agree?