Legal Stability and Claims of Change: The International Court's Treatment of Jus ad Bellum and Jus in Bello

2006 ◽  
Vol 75 (3-4) ◽  
pp. 371-407 ◽  
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
Use Of Force ◽  
High Standard ◽  
Armed Conflicts ◽  
Legal Change ◽  
International Conflicts ◽  
Post Cold War ◽  
Legal Norms ◽  
Standard Of Proof ◽  
Legal Position ◽  
The Law

AbstractThe post-Cold War era has witnessed a number of international conflicts and attendant claims that the law related to the use of force and armed conflicts has experienced significant changes in consequence of those events and processes. This has been argued extensively in terms of the conflicts of Iraq, Yugoslavia, or Afghanistan. The proof of legal change is, however, difficult to establish as it is subject to a high standard of proof and at the same time legal changes can damage the consistency and credibility of the system. As the International Court's consistent jurisprudence demonstrates, the argument of alleged legal changes in the legal regime governing armed conflicts is not based on consistent reasoning. This is explained by example in the Court's treatment of a number of fields, such as consent to the use of force, proof of the facts of the use of force, the law of self-defence and the law of belligerent occupation. The Court's consistent jurisprudence not only undermines the argument of legal change but also demonstrates that the legal position in this field maintains its separate existence in relation to power and politics. The strict application of legal norms is an inevitable requirement for a transparent legal system.

Complex Conflict Situations

2018 ◽  
Author(s):  
Kubo Mačák
Keyword(s):  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
Model Based ◽  
Conflict Situations ◽  
Single Use ◽  
The Law ◽  
Mutually Independent

This chapter analyses the legal qualification of complex conflict situations that feature more than two conflict parties. It examines whether such situations qualify as a single internationalized armed conflict or a number of independent international and non-international armed conflicts. With this in mind, this chapter puts forward a model based on the retention of autonomy of the allied conflict parties. It argues that once the autonomy is foregone and replaced with a single use of force by the parties, the law of international armed conflict applies ‘globally’ to the situation at hand. However, until that moment, the situation should be seen as ‘mixed’; in other words, as a set of mutually independent conflict pairs.

The Canon of Love against the Use of Force in Islamic and Public International Law. Part I: The Chamber of Love within Legal Discipline

2015 ◽  
Vol 15 (4) ◽  
pp. 591-628 ◽  
Author(s):  
Farhad Malekian
Keyword(s):  
European Union ◽  
International Law ◽  
Use Of Force ◽  
Human Beings ◽  
Public International Law ◽  
Legal Norms ◽  
Philosophical Interpretation ◽  
Philosophy Of Love ◽  
The Law ◽  
Human Integrity

To attempt to speak coherently about the philosophy of love in conjunction with the law is an eccentric undertaking for an international lawyer. This work asserts the view that “love” plays a significant jurisprudential role in both the writing and philosophical interpretation of the law. It is a powerful norm. If the law is written and interpreted with love for human beings, the position of the use of force will be modified and concede its place to the approbation of equal justice and peace based on the primary value of human integrity. The work will be a comparative discussion, as the adherence of European states to both public international law and European Union norms suggests that neither need there be an inevitable divergence between adherence to both these and to Islamic legal norms. It brings into recognition the principle that the use of armed force for any purpose is a serious violation of the jurisprudence of law and runs contrary to the inherent integrity of humankind and the canon of love for justice.

1 Introduction

2016 ◽  
Author(s):  
Boothby William H
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
Important Distinction ◽  
Legal Rules ◽  
Arms Trade ◽  
Law Of Armed Conflict ◽  
The Law

This relatively brief chapter introduces the book as a whole. It positions weapons law within the framework of international law in general, and of the law of armed conflict in particular, noting the important distinctions between international and non-international armed conflicts, and between the law on the resort to the use of force and that which regulates the conduct of hostilities. The logical flow of the book is presented, and certain terms that are vital to the ensuing discussion, namely weapons, means of warfare and methods of warfare are explained. The all-important distinction between weapons law and the legal rules that regulate targeting is noted. A concluding section addresses the recently-adopted Arms Trade Treaty.

19 The Law of Non-International Armed Conflict

2021 ◽  
Author(s):  
Fleck Dieter
Keyword(s):  
Twentieth Century ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Basic Principles ◽  
Progressive Development ◽  
Law Of Armed Conflict ◽  
The Law

This chapter provides an overview of the law of non-international armed conflicts and its progressive development. The law of armed conflict, as it has developed in the last part of the nineteenth and the first part of the twentieth century, deals predominantly with wars between states. Its basic principles and rules are, however, likewise relevant for non-international armed conflicts: in all armed conflicts, elementary considerations of humanity must be respected under all circumstances, in order to protect victims, to reduce human sufferings, and to minimize damages to objects vital for survival. Therefore, the parties to the conflict do not have an unlimited choice of the means and methods of conducting hostilities, nor of selecting the targets to be attacked, and they must protect the victims from the effects and consequences of war. This concept is reflected in the principles and rules of international humanitarian law, to be respected by all and, while taking military necessity into account, limiting the use of force for humanitarian reasons. Parties to the conflict respecting these principles and rules are considered as respecting the international order, while those seriously violating them will commit internationally wrongful acts and perpetrators are liable to punishment.

Authorizing Attacks in Response to Terrorist Attacks

2019 ◽  
pp. 21-39
Author(s):  
Patrycja Grzebyk
Keyword(s):  
Use Of Force ◽  
The United States ◽  
Armed Conflicts ◽  
Terrorist Attacks ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Legal Justification ◽  
The Law ◽  
Legal Constraints

Some states (mainly the United States and Israel) intermingle the terms/principles of the law of armed conflicts/international humanitarian law regime and the regime of the law on the use of force in order to avoid legal constraints and to justify attacks against non-state armed groups in violation of the sovereignty of other states and the rights of particular persons. The counterterrorism strategy is created under the influence of legal arguments, and thus the recent trend of abusive interpretation of the regimes could encourage decision-makers to resort to military measures instead of using less intrusive instruments such as criminal cooperation. This tendency is more visible in times of crisis. States are then still interested in having legal justification for their actions, but they tend to see the role of law differently: the law is expected to serve the authorities, rather than to guide them, when the state’s fundamental interest—its security—is under threat.

Personal Self-Defense and the Standing Rules of Engagement

2018 ◽  
pp. 109-124
Author(s):  
Christopher M. Ford
Keyword(s):  
Unmanned Aerial Vehicle ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Armed Groups ◽  
Self Defense ◽  
Aerial Vehicle ◽  
The Law ◽  
The U.S

The U.S. military Standing Rules of Engagement (SROE) restrict the use of force in armed conflict to either self-defense or “mission-specific” rules of engagement, which refer to the use of force against members of enemy armed forces or organized armed groups that have been “declared hostile.” This bifurcation of authority works well in an international armed conflict, where the enemy force is uniformed and easily distinguished. In these circumstances, the overwhelming number of engagements are against identified hostile forces. In many non-international armed conflicts, however, combatants actively attempt to camouflage their status, and U.S. forces find themselves engaging enemy forces under a self-defense framework. This creates problems. Consider, for example, a situation where three individuals of unknown affiliation launch an attack against a U.S. military convoy in Afghanistan. After a short engagement, the attackers get in a van and speed away from the attack site. The U.S. convoy is disabled, but an unmanned aerial vehicle tracks the van as it retreats into the desert. Thirty minutes later an AH-64 Apache attack helicopter arrives on scene above the still-retreating van. Can the Apache attack the vehicle? The van is retreating and poses no threat, thus self-defense principles would not allow for the use of force, despite the fact that the occupants are clearly directly participating in hostilities. This chapter addresses three questions: Why are the SROE drafted in this manner? What is the basis in the law for the SROE’s approach to self-defense? What are the problems presented by this approach?

ITLOS and the Saga of the Saiga: Peaceful Settlement of a Law of the Sea Dispute

2000 ◽  
Vol 15 (3) ◽  
pp. 355-392
Author(s):  
Louise de La Fayette
Keyword(s):  
Use Of Force ◽  
Burden Of Proof ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Final Phase ◽  
Standard Of Proof ◽  
Peaceful Settlement ◽  
Technical Issues ◽  
The Law

AbstractThe Saiga No. 2 case was the first judgment on the merits by the International Tribunal for the Law of the Sea, and the final phase of a dispute with a complicated procedural history, using several of the provisions of Part XV of the LOS Convention. The case raised a number of procedural and evidentiary issues, relating to the presentation of witnesses, the burden of proof and the standard of proof. It clarified the meaning of "genuine link", confirmed the law on hot pursuit, settled the law on use of force in the arrest of foreign vessels, and made clear that coastal states did not enjoy customs jurisdiction in the EEZ, while leaving aside the question of jurisdiction over offshore bunkering. The Tribunal is to be commended for not permitting technical issues to prevent it from doing justice in the case.

Proportionality and Force in International Law

1993 ◽  
Vol 87 (3) ◽  
pp. 391-413 ◽  
Author(s):  
Judith Gail Gardam
Keyword(s):  
Armed Conflict ◽  
Use Of Force ◽  
Fundamental Principle ◽  
Armed Conflicts ◽  
Customary Law ◽  
Law Of Armed Conflict ◽  
The Law ◽  
United Nations System ◽  
The Right ◽  
The Cost

Proportionality is a fundamental component of the law on the use of force and the law of armed conflict—the jus ad bellum and the jus in bello. In the former, it refers to a belligerent’s response to a grievance and, in the latter, to the balance to be struck between the achievement of a military goal and the cost in terms of lives. The legitimate resort to force under the United Nations system is regarded by most commentators as restricted to the use of force in self-defense under Article 51 and collective security action under chapter VII of the UN Charter. The resort to force in both these situations is limited by the customary law requirement that it be proportionate to the unlawful aggression that gave rise to the right. In the law of armed conflict, the notion of proportionality is based on the fundamental principle that belligerents do not enjoy an unlimited choice of means to inflict damage on the enemy. Since the entry into force of Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, proportionality has been both a conventional and a customary principle of the law of armed conflict.

The right to life in armed conflict: does international humanitarian law provide all the answers?

2006 ◽  
Vol 88 (864) ◽  
pp. 881-904 ◽  
Author(s):  
Louise Doswald-Beck
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Right To Life ◽  
The Law ◽  
The Right

AbstractThis article describes the relevant interpretation of the right to life by human rights treaty bodies and analyses how this might influence the law relating to the use of force in armed conflicts and occupations where international humanitarian law is unclear. The concurrent applicability of international humanitarian law and human rights law to hostilities in armed conflict does not mean that the right to life must, in all situations, be interpreted in accordance with the provisions of international humanitarian law. The author submits that the human rights law relating to the right to life is suitable to supplement the rules of international humanitarian law relating to the use of force for non-international conflicts and occupation, as well as the law relating to civilians taking a “direct part in hostilities”. Finally, by making reference to the traditional prohibition of assassination, the author concludes that the application of human rights law in these situations would not undermine the spirit of international humanitarian law.

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