Legitimate use of military force against state-sponsored - Air University

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The danger of conceding to individual states or even groups of states the right to take collective security action, unauthorized by the competent organs of the United Nations, lies in the possibility that antagonistic groups may reach a decision that action is necessary ‘‘to maintain or restore international peace and security” and under a claim of right plunge the world into war. 16 Additionally, this school views freedom to structure alliances, using collective self-defense as its legal foundation, as undermining the Charter’s centralized collective security system vested in the Security Council. 17 The Kelsen and Bowett schools of thought are advanced from time to time today. But a third school of thought has emerged. This school holds that the key “legal issue is not whether the assisting state has a right of individual defense but only whether the state receiving aid is the victim of an external attack.” 18 Columbia University law professor Oscar Schachter reaffirms the rule in these words, “The law clearly allows collective self-defense, so that a state may aid a victim of actual aggression.” 19 This third school of thought reflects the practice of states. Both NATO and the Warsaw Pact are based upon this third school’s liberal approach to interpreting the UN Charter. Moreover, this third school has received the support of numerous recognized international legal scholars to include Moore, McDougal, Schachter, and Waldock. 20 Additionally, this third school does not require a preexisting collective self-defense arrangement as a condition of assistance. Prof John Norton Moore, University of Virginia Law School, writes, “Collective defense, whether pursuant to Article 51 or not, does not require a preexisting regional defense agreement.” 21 Sir Humphrey Waldock. former president of the International Court of Justice, agrees: “The word ‘collective’ does not appear to have been intended to cover only contractual systems of self-defense and any assistance to a member engaged in legitimate self-defense appears to be authorized by Article 51.” 22 In sum, the only additional legal condition that must be satisfied to exercise legitimate collective self-defense, in contrast to individual self-defense, is that the assisting state must be aiding a victim state engaging in legitimate self-defense. Regional Enforcement Action Regional enforcement action refers to actions undertaken in accordance with article 53 of chapter VIII of the United Nations Charter. A regional organization is “any grouping of states in some defined geographical context with historic, ethnic or sociopolitical ties, which habitually acts in concert through permanent institutions to foster unity in a wide range of common concerns. ” 23 Should a regional organization seek to undertake an enforcement action within its region, it must comply with the conditions set forth in article 53. Since only the Security Council has authority under the Charter to enforce international law, one requirement of article 53 is prior approval by the Security Council of any enforcement action before it is taken. Individual and collective self-defense actions taken under article 51 requires no prior Security Council approval. Therefore, a regional enforcement action, unlike self-defense action, is subject to the exercise of the right of veto. Failure to obtain a favorable
Security Council decision denies legitimacy to any proposed enforcement action of the regional organization. 24 To undertake a regional enforcement action without Security Council prior approval is to act in violation of international law. An additional requirement in article 54 of the Charter is that the Security Council shall at all times be kept fully informed of regional enforcement actions taken under article 53. This rule is in marked contrast to the provision in article 51 concerning individual and collective selfdefense, which requires only after-the-fact reporting of measures taken. 25 Regional Peacekeeping Because of the requirement that prior Security Council approval be obtained, regional enforcement actions are highly unlikely. An alternative course of action is to pursue regional peacekeeping action under article 52 of the Charter. Regional peacekeeping differs from regional enforcement action in significant ways. First, regional peacekeeping is not directed at enforcing anything. It is directed at restoring law and order in situations where governmental authority has broken down or collapsed. After a review of the Security Council official record on the Dominican Republic crisis of May and June 1965, Moore concluded that “despite the Soviet argument to the contrary, there is substantial evidence that regional peacekeeping actions undertaken in a setting of breakdown of authority are lawful under the UN Charter. This has been the consistent position of the United States and the OAS.” 26 Second, since it is not an enforcement action under article 53 but a peacekeeping action under article 52, the states involved do not need to obtain prior approval of the action from the Security Council. The reporting requirement of article 54, however, applies to both articles 52 and 53; therefore, the Security Council must be kept fully informed at all times of the peacekeeping action undertaken. Third, article 52, paragraph 2, provides that regional peacekeeping actions be taken as a last resort. Every effort to achieve peaceful settlement of the local situation must be attempted. Of course, fruitless efforts need not be pursued. Fourth, regional peacekeeping must result from an invitation from the lawfully constituted government. The International Court of Justice held in Certain Expenses of the United Nations that Peacekeeping actions not directed against a state but undertaken with the permission of constitutional authorities were not an ‘enforcement action’.” 27 However, if such a government no longer exists because of the breakdown of law and Order or through its collapse, then such a request is not a precondition. Moore notes, regarding the 1983 Grenada operation, that the core of the OECS [Organization of Eastern Caribbean States] peacekeeping and humanitarian protective action was the breakdown of governmental authority and threats to the safety of civilians in Grenada. In such a setting, it is not required for lawful regional peacekeeping under the UN Charter, the OAS Charter or the OECS Treaty that there be a request from a nonexistent government. 28
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LEGITIMATE USE OF MILITARY FORCE AG
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CONTENTS Page Disclaimer ii Forewor
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Chapter 7 USE OF MILITARY FORCE: TE
Page 8 and 9:
ABOUT THE AUTHOR Lt Col Richard J.
Page 10 and 11:
INTRODUCTION THE RELEVANCE OF INTER
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Chapter 7 summarizes the lessons le
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This Study, How Meaningful? States
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The international arena has seen so
Page 18 and 19:
Combating terrorism accents this is
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7. Many scholars and jurists have f
Page 22 and 23:
Jenkins, “Combatting Terrorism Be
Page 24 and 25:
Thoughts toward an International Co
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29. See Vice President, Report on C
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CHAPTER 1 WHAT IS TERRORISM AND HOW
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If a general definition would be so
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Terrorism is the unlawful use or th
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International Terrorism: A Working
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there is evidence that President Id
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The Vice President’s Task Force o
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A Threat More Serious Than Numbers
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Diplomatic relations between countr
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And what has the challenge become?
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physically or by neutralizing their
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27. UN General Assembly, resolution
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44. L. C. Green of the University o
Page 52 and 53:
65. Information provided by L. Cart
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105. See Stephen Sloan, Beating int
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The law of armed conflict approach
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But, as regards terrorism, the arme
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1. If the law of armed conflict is
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Although both approaches, law enfor
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crime involved. This initiative has
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Symbionese Liberation Army (SLA) wa
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eaches, prosecution, and extraditio
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the latter instance, no one claimed
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international law establishing indi
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Another issue is the choice and use
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NOTES 1. Department of State, “Li
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28. Paul A. Tharp, Jr., “The Laws
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1919 a process has been under way t
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66. See Geneva Convention IV, artic
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CHAPTER 3 STATES HAVE RESPONSIBILIT
Page 86 and 87: International Terrorism and the Dut
Page 88 and 89: government exercises within its ter
Page 90 and 91: few states, although they do not vi
Page 92 and 93: to establish the linkage required u
Page 94 and 95: chapters 4-6 examine the second. Te
Page 96 and 97: all Members shall refrain in their
Page 98 and 99: valuable tools of self-help and of
Page 100 and 101: object the removal or destruction o
Page 102 and 103: 10. Jordan J. Paust, “Entebbe and
Page 104 and 105: 34. See “Terrorism’s Grim Upsur
Page 106 and 107: through activities that involve for
Page 108 and 109: CHAPTER 4 INDIVIDUAL SELF-DEFENSE A
Page 110 and 111: Strictly speaking, the right of ind
Page 112 and 113: Clearly, however, states may not re
Page 114 and 115: Although the degree of control that
Page 116 and 117: The expansive school’s belief tha
Page 118 and 119: What is the customary law on self-d
Page 120 and 121: await the arrival on scene of an ar
Page 122 and 123: Reasonable Response This element re
Page 124 and 125: Summary and Transition Individual s
Page 126 and 127: Security; Implications of Israel’
Page 128 and 129: In response to this line of reasoni
Page 130 and 131: American Society of International L
Page 132 and 133: Brownlie, “Use of Force,” 231.
Page 134 and 135: avoided if the focus is put properl
Page 138 and 139: Fifth, and finally, article 52, par
Page 140 and 141: 12. See Rosalyn Higgins, “The Leg
Page 142 and 143: CHAPTER 6 OTHER LEGAL ARGUMENTS TO
Page 144 and 145: conditions necessary for invitation
Page 146 and 147: The action must be taken for a puni
Page 148 and 149: …Yet, essentially for reasons of
Page 150 and 151: The action must be necessitated by
Page 152 and 153: emained so once the operations were
Page 154 and 155: Perhaps the best ease for humanitar
Page 156 and 157: The state contemplating interventio
Page 158 and 159: Many have criticized the modern law
Page 160 and 161: NOTES 1. See J. E. S. Fawcett, ‘I
Page 162 and 163: 27. Bowett writes, ‘‘Reprisals
Page 164 and 165: 49. See Bowett, Self-Defence, 88. 5
Page 166 and 167: An International Journal 7, no. 2 (
Page 168 and 169: This study has considered each of t
Page 170 and 171: Piracy, which is limited to illegal
Page 172 and 173: NOTES 1. Joint Chiefs of Stall, Uni
Page 174 and 175: 3. The action is taken to protect e
Page 176 and 177: Option 4: Collective Anticipatory S
Page 178 and 179: Option 8: Peacetime Reprisal Source
Page 180 and 181: 8. The action is for a limited dura
Page 182 and 183: APPENDIX B UNITED NATIONS CHARTER (
Page 184 and 185: APPENDIX C STATUTE OF THE INTERNATI
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Crelinsten, Ronald D., Danielle Lab
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Almond, Harry E., Jr. “Using Law
Page 190 and 191:
Clark, Roger S. “Humanitarian Int
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Harlow, Bruce, Lt Comdr, USN. “Th
Page 194 and 195:
Livingstone, Neil C., and Terrell B
Page 196 and 197:
Paust, Jordan 5. “Entebbe and Sel
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______. “Problems with the Applic
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Blum, Yehuda. State Terrorism and t
Page 202 and 203:
“European Convention on the Suppr
Page 204 and 205:
______. Arms Control and Disarmamen
Page 206 and 207:
______. “Terrorist Attacks on US
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