Transcript Civilian Protection Law in Military Operations

Chapter 1: Legal Bases for the
Use of Force
Legal Bases
 Jus
ad bellum
– Law applicable to Going to War
 Jus
in Bello
– Law applicable in War
History
 Just
War Theory
 War as Fact
 WWI
 League of Nations
 Kellogg-Briand
 WWII
UN Charter
 Victorious
Powers of WWII
 Presumptive prohibition on the
“Use of Force”
 Granting
sovereignty over the “use of
force” to an international ogranization
UN Charter

1.
The Purposes of the United Nations are:
To maintain international peace and security, and to
that end: to take effective collective measures for the
prevention and removal of threats to the peace, and
for the suppression of acts of aggression or other
breaches of the peace, and to bring about by
peaceful means, and in conformity with the
principles of justice and international law,
adjustment or settlement of international disputes or
situations which might lead to a breach of the peace;
UN Charter
- Art. 2:
3. All Members shall settle their international disputes
by peaceful means in such a manner that international
peace and security, and justice, are not endangered.
4. 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.
UN Organization
 General
Assembly (arts. 9-22)
 Security Council (arts. 23-51)
 Economic and Social Council
 Trusteeship Council
 International Court of Justice
(arts. 92-96)
 Secretariat
Use of Force
 Exceptions
to the Prohibition
– Consent
– Security Council Authorization
– Self-Defense
Consent
 Reality
of the Consent
– Realistic Consent
– Coerced Consent
 Economic
pressure
 Military pressure
 Sticks vs. Carrots
UNSC Authorization
 Chapter
VI
 Chapter VII
 Art. 39 Threshold
 Arts. 41 and 42
 No Article 43 Forces
 Invites/Authorizes
– UNSCR Resolution
Self-Defense

Article 51 - 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, until the Security Council has taken measures
necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of
self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and
responsibility of the Security Council under the present
Charter to take at any time such action as it deems
necessary in order to maintain or restore international
peace and security.
Self-Defense
 “Armed
Attack”
 Necessity, Proportionality,
Timeliness
 Anticipatory SD
 Interceptive SD
 Preemptive SD
Armed Attack
 “if
an armed attack occurs”
 Does “armed” require heat,
blast and fragmentation?
 Cyber attacks?
 Failed attempts?
Principles
– an objective necessity
to respond
 Proportionality – response limited
in scope, intensity, and duration
 Timeliness – reasonable proximity
in time to the hostile act
 Necessity
Anticipatory SD
 Caroline
Case
 “instant, overwhelming, and
leaving no choice of means, and
no moment for deliberation”
Interceptive SD
 Attacker
has “committed itself
to an armed attack in an
ostensibly irreversible way
Preemptive
“The United States has long maintained the option of
preemptive actions to counter a sufficient threat to our
national security. The greater the threat, the greater is
the risk of inaction— and the more compelling the
case for taking anticipatory action to defend
ourselves, even if uncertainty remains as to the time
and place of the enemy’s attack. To forestall or
prevent such hostile acts by our adversaries, the
United States will, if necessary, act preemptively.”
Other Uses of Force
 Protection
of Nationals
– Noncombatant Evacuation Operations
 Responsibility
to Protect (R2P)
– Domestic State responsibility
– Int’l communities responsibility to assist
Domestic State
– Int’l community should use appropriate methods
– Int’sl community has the responsibility to
intervene if Domestic State fails
Contemporary Challenges
 Non
State Actors
– UN Charter concerns States
 Drones
– Ad bellum or in bello
 Cyber
Operations
– Attack?
– Armed?
– Attribution
Questions?