Part 3 The Post 9/11-Era (2001–), 48 The Intervention in Afghanistan—2001–

The Us ◽

Un Security Council ◽

State Actors ◽

Complex Relationships ◽

This chapter addresses the US and NATO-led intervention in Afghanistan from 2001 to the present day. It examines the different legal justifications advanced or available for the intervention, namely self-defence, UN Security Council authorization, and intervention by invitation. It explores the complex relationships between these justifications and, particularly, the strategies adopted by states in choosing between them. The chapter concludes by considering the effects of the intervention on the customary international law of self-defence as it concerns non-state actors located in “unaware or unable” states, and anticipatory or pre-emptive responses.

11. Use of force

International Law Concentrate ◽

10.1093/he/9780198840978.003.0011 ◽

2019 ◽

pp. 144-159

Author(s):

Ilias Bantekas ◽

Efthymios Papastavridis

Keyword(s):

International Law ◽

Security Council ◽

Use Of Force ◽

Armed Force ◽

Responsibility To Protect ◽

Collective Security ◽

Armed Attack ◽

Significant Achievement ◽

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

Has the United Nations Security Council Implicitly Removed Al Bashir's Immunity?

International Criminal Law Review ◽

10.1163/157181210x492261 ◽

2010 ◽

Vol 10 (2) ◽

pp. 275-288 ◽

Cited By ~ 5

Author(s):

Sophie Papillon

Keyword(s):

United Nations ◽

International Law ◽

Security Council ◽

United Nations Security Council ◽

Legal Basis ◽

Arrest Warrant ◽

Head Of State ◽

Un Security Council ◽

Heads Of State

AbstractOn 4 March 2009, the ICC issued an arrest warrant for Omar Hassan Ahmad Al Bashir, the incumbent Head of State of Sudan. This article's purpose is to suggest a legal basis for reconciling the well established rule on personal immunities under customary international law with the prosecution of Heads of State from non-parties to the ICC Statute. While arguing for the legality of Al Bashir's warrant as well as the legality of the warrant's enforcement, this article explores the basis upon which the UN Security Council can remove immunities. By giving special attention to the concept of waivers, the article suggests that the UN organ implicitly removed Al Bashir's immunity when it referred the situation of Sudan to the ICC in 2005.

Use of Force in Cyberspace

International and Comparative Law Review ◽

10.2478/iclr-2020-0023 ◽

2020 ◽

Vol 20 (2) ◽

pp. 174-191

Author(s):

Jozef Valuch ◽

Ondrej Hamuľák

Keyword(s):

International Law ◽

Security Council ◽

Use Of Force ◽

Un Security Council ◽

The Individual ◽

Summary The ban on the use of force in current international law is of mandatory character. The only exceptions are actions under the auspices of the UN Security Council and self-defence. The article addresses the issue of the use of force, with particular emphasis on cyberspace. As the nature of the conflicts has changed in recent years as well as the space where the individual operations have been moving, a number of fundamental questions arise in this context, which the authors will try to answer.

75TH ANNIVERSARY OF THE UN: HOPES AND REALITIES

Courier of the Kutafin Moscow State Law University ◽

10.17803/2311-5998.2020.76.12.038-052 ◽

2021 ◽

pp. 38-52

Author(s):

E. L. Kuzmin

Keyword(s):

International Law ◽

Security Council ◽

International System ◽

The United States ◽

World Politics ◽

The Us ◽

Un Security Council ◽

The Creation ◽

Special Rules

Examining the history of the UN creation in the first part of the article, the author focuses on an exceptionally significant issue settled in 1945 during the Crimean Conference of the Heads of the Three Great Powers, namely: the order of voting in the UN Security Council. Various appeals to renounce the “veto” of permanent members of the UN Security Council enshrined in the UN Charter have become the main leitmotif of numerous attempts of the United States and their closest allies to revise the UN Charter. Reviewing such proposals, the author notes that populist ideas the essence of which constitutes the call to replace, based on the principles of equality of all States, an international Organization by a supranational structure whose activities would actually be based on the principle of “who has force, has power” have been disseminated in Western political and scientific circles.The author goes on to consider the crucial question: whether the Organization have been able to cope with its main mission: to maintain international peace and security?Listing the outstanding universal documents of our time developed in the bowels of the UN, the author calls the most notable, in his opinion, achievement of the Organization — a real liberation of dozens of countries in Asia, Africa and Latin America from colonial oppression. Analyzing the activities of the UN, the author acknowledges that the Organization in many respects is still far from its unifying convergent essence: the US and its NATO allies lead the policy aiming at crashing the system of international relations, based on the central role of the UN in world politics; the US promote a concept that implies the creation of closed alliances to develop and implement measures bypassing the UN. Amid such realities, Russia, seeking to strengthen multilateral principles in international affairs, emphasizes the creation of a self-regulating international system, which requires collective leadership of the leading States that is represented geographically and civilizationally, and exercised with full respect for the central and coordinating role of the United Nations.The article also draws attention to the fact that modern reality identifies more and more intractable problems, which often lead to the “autonomization” of international law: “niches” that are not filled with legal material inevitably give rise to situations where the gaps concerned are governed by particular and special rules based on bilateral or regional foundations, The author sees the empowerment of international law in the approval of principles of intercivilizational communication, the pursuance of synthesis of various legal systems, ideologies, cultures, religions and other spiritual values, which would provide a reliable basis for strengthening the importance and influence of international law.

Restrictivist Reasoning on theRatione PersonaeDimension of Armed Attacks in the Post 9/11 World

Leiden Journal of International Law ◽

10.1017/s0922156515000631 ◽

2016 ◽

Vol 29 (1) ◽

pp. 19-42 ◽

Cited By ~ 3

Author(s):

ANDRÉ DE HOOGH

Keyword(s):

International Law ◽

State Practice ◽

State Actors ◽

The Right ◽

AbstractThis contribution investigates restrictivist reasoning on the origin of armed attacks, and concentrates on the interpretation of Article 51 of the UN Charter and the use of state practice. One particular aspect is examined: the linkage of the armed activities of non-state actors to a state required for an exercise of the right of self-defence to be justified in relation to that state. Many authors have moved away from a restrictive interpretation of Article 51 of the Charter and customary international law, and have proposed various legal constructs –complicity, aiding and abetting, harbour and support, unwillingness or inability to act– to allow for the invocation of self-defence even when armed activities of non-state actors cannot be attributed to a state and its substantial involvement is doubtful. Noticeable among authors generally, with certain exceptions, is a certain lack of concern to account for whatever method of interpretation or analysis they employ.

The Legality and Legitimacy of Unilateral Armed Intervention in an Age of Terror, Neo-Imperialism, and Massive Violations of Human Rights: Is International Law Evolving in the Right Direction?

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800008481 ◽

2005 ◽

Vol 42 ◽

pp. 3-33

Author(s):

J.-G. Castel

Keyword(s):

Human Rights ◽

International Law ◽

Security Council ◽

The United States ◽

Human Right ◽

Bush Doctrine ◽

The Right ◽

Armed Intervention ◽

SummaryWith the end of the Cold War, the United States has emerged as the sole remaining superpower whose ambition is to create a new open and integrated world order based on principks of democratic capitalism. To ensure its hegemony, the United States is prepared to resort to military action with or without UN approval when its international and national security interests are at stake. The intervention in Iraq by the Coalition of the Willing is a good example of this policy and raises the question of its legality and legitimacy under contemporary international law. May or must a state resort to military intervention against a state sponsoring terrorism or depriving its nationals of their internationally recognized human rights? The so-called “Bush doctrine” of anticipatory or preventive self-defence against a state accused of supplying weapons of mass destruction to a foreign terrorist organization, which was one of the reasons advanced by the Coalition of the Willing for intervening in Iraq, meets neither the conditions laid out in Article 51 of the UN Charter nor those of customary international law. Thus, at the present stage of development of international law, the Bush doctrine is not even lege ferenda. It is not an extension of the customary international law right of pre-emptive self-defence. Only with the approval of the Security Council pursuant to Chapter VII of the UN Charter or when it takes place within the strict confines of self-defence, can armed intervention be legitimate.The second reason for intervening in Iraq given by the Coalition of the Willing is based on humanitarian considerations, which raises the question whether the protection of human rights can be assured from the outside. Here, international law is evolving in the right direction since the international community is prepared to adopt the concept of responsibility to protect, which justifies the use of force to protect and enforce human rights as an exception to Article 2(4) and (7) of the UN Charter. Again, such intervention is legal only when approved by the Security Council acting pursuant to Chapter VII on the ground that human right crises do not fall “essentially within the jurisdiction of any state.” However, the international community, with the exception of the Coalition of the Willing, is not yet prepared to support a right of unilateral military intervention as a last resort when the Security Council is incapable and unwilling to do so. This includes intervention motivated by the non-democratic form of government of the targeted state. Although the primary responsibility to deal with human right crises rests with the United Nations based on the responsibility to protect, it is argued that one should not rule out unilateral military action based on a customary international law right of intervention to meet the gravity and urgency of the situation provided the intervening state fully observes the necessary precautionary principles governing such type of intervention. The conclusion is that terrorism and human rights abuses can only be effectively challenged through a concerted multilateral collective approach not through the politics of unilateralism.

Self-defence against Armed Attacks by Non-State Actors

Chinese Journal of International Law ◽

10.1093/chinesejil/jmz037 ◽

2019 ◽

Vol 18 (4) ◽

pp. 751-775

Author(s):

Rein Müllerson

Keyword(s):

International Law ◽

Military Force ◽

International Organisations ◽

Territorial State ◽

Defensive Responses ◽

State Actors ◽

Abstract Armed attacks in the sense of Article 51 and customary international law can be carried out not only by States, but also by non-State actors (NSA). Self-defensive responses to attacks by NSAs, due to their specific characteristics, may contain a combination of elements of anticipatory self-defence and defensive reprisals. If a State, from the territory of which an attack originates, is unable to prevent an NSA attacking a third State, it has to ask for and to accept the assistance of the victim State, other States, or relevant international organisations. The latter cannot use military force in self-defence in such circumstances without having first sought the consent of the territorial State. However, if a State is unwilling to prevent an NSA, operating from its territory, from attacking third States, it becomes an accessory-after-the-fact to armed attacks of the NSA. Self-defensive, either individual or collective, measures can be carried out on the territory of such a State even without its consent.

NATO’s Humanitarian Intervention in Kosovo: Making or Breaking International Law?

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800006949 ◽

1999 ◽

Vol 36 ◽

pp. 303-333 ◽

Cited By ~ 1

Author(s):

John Currie

Keyword(s):

International Law ◽

Security Council ◽

Humanitarian Intervention ◽

Conventional Analysis ◽

Un Security Council ◽

Regional Concentration ◽

Regional Character ◽

Acting In Concert ◽

Atlantic Area

SummaryNATO’s seventy-nine-day campaign of air strikes against the Federal Republic of Yugoslavia has sparked a wide-ranging debate as to the legality of such military action. NATO has consistently justified its intervention on humanitarian grounds, thus clearly resorting to the controversial doctrine of “humanitarian intervention.” The author argues that while a conventional analysis of the purported right of unilateral humanitarian intervention under international law and of NATO’s acts on the Kosovo issue might lead some individuals to the conclusion that such acts were illegal (or, at best, of dubious legality), this conclusion fails to take into account the fact that state actors, particularly when acting in concert, tend to influence the content of international law itself. The author suggests that the true significance of NATO’s forcible intervention in the Kosovo crisis is that it sets a clear precedent that may well crystallize an emergent norm of customary international law permitting forcible intervention by one or more states against another on humanitarian grounds, even without prior UN Security Council authorization. While such a norm may acquire universal status, it is also possible, in light of the regional concentration of the primary actors involved as well as of important objections from some quarters as to its legality, that it will acquire (at least in the first instance) a local or regional character, perhaps confined to the Euro-Atlantic area.

The Use of Force Against Pirates

10.1093/law/9780199673049.003.0050 ◽

2016 ◽

Author(s):

Douglas Guilfoyle

Keyword(s):

Law Enforcement ◽

International Law ◽

Security Council ◽

Use Of Force ◽

Law Of The Sea ◽

Legal Regime ◽

Public International Law ◽

Security Personnel ◽

Un Security Council ◽

This chapter examines the use of force against piracy in the context of international law, with particular reference to the pirates off Somalia. It discusses the counter-piracy activities by multinational military forces under the applicable public international law of the sea and as law enforcement operations. It also considers the issues raised by the use of force by private merchant vessels in self-defence, including the use of privately contracted armed security personnel. The chapter reviews the relevant UN Security Council resolutions and the legal regime applicable at sea and ashore within Somalia itself. It also analyses the Council’s authorization of states to use ‘all necessary means to repress acts of piracy and armed robbery’ within Somalia’s territorial sea.

Unilateral Enforcement of Un Security Council Resolutions: The Case of Operation Iraqi Freedom

Journal of Legal Studies ◽

10.1515/jles-2018-0013 ◽

2018 ◽

Vol 22 (36) ◽

pp. 53-64

Author(s):

Alex Ansong

Keyword(s):

International Law ◽

Security Council ◽

Operation Iraqi Freedom ◽

International Governance ◽

Islamic State ◽

The Us ◽

Un Security Council ◽

The Right ◽

Iraqi Freedom ◽

Invasion Of Iraq

Abstract The prohibition of armed aggression under Article 2(2) of the United Nations Charter is one of the most important developments in international law and international relations in the modern era. The fact that the right to wage war is no longer accepted as falling within the sovereignty of the state has ushered in an appreciably stable international order based on the rule of law and not the rule of might. While states obviously still engage in warfare and numerous wars have been fought by states in the era of the UN, the very fact that the prohibition of armed aggression has assumed universal acceptance as customary international law is a notable achievement. In spite of the prohibition of armed aggression under the UN Charter, self-defence and collective action mandated by the UN Security Council serve as notable exceptions. The US-led invasion of Iraq in 2003 (i.e. Operation Iraqi Freedom) was peculiar because, the justification for the invasion hinged on the enforcement of UN Security Council Resolutions. This justification thus brought to the fore whether, under international law, there was the right to unilaterally enforce Security Council Resolutions. In the current resurgence of unilateralism typified by the US Trumpled withdrawal or threat of withdrawal from multilateral systems of international governance and cooperation, it is important to reiterate the lessons of unilateralism epitomized by the 2003 invasion of Iraq and the instabilities that have become offshoots of this invasion – e.g. the creation of monsters like the so-called Islamic State. This article discusses the resort to unilateralism under the guise of enforcing UN Security Council resolutions. It also engages in a brief discussion on the justifications for war prior to the UN Charter and the provisions on the use of force prescribed in the Charter. It uses the US-led invasion of Iraq in 2003 as a case study to shed light on legality of unilateral enforcement of UN Security Council Resolutions.