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

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CHAPTER 6 OTHER LEGAL ARGUMENTS TO JUSTIFY USE OF FORCE States have a duty to refrain from acts of [peacetime] reprisal involving the use of force. United Nations General Assembly Resolution 2625, 25th Session Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Slaughterhouse cases Citizenship is membership of a political society and implies a duty of allegiance on the part of the members and a duty of protection on the part of society. Luria v. United States Lauterpacht, the great protagonist for the recognition of human rights, felt bound to concede that the doctrine of humanitarian intervention ‘never became a fully recognized pan of positive international law.” James L. Brierly The preceding two chapters analyzed various legal arguments to support the legitimate use of armed force in the contemporary international environment. Chapter 4 looked at the concept of individual self-defense while chapter 5 reviewed the ways in which states may act in concert. This chapter considers the remaining legal arguments that could be made to justify resort to armed force: invitation, peacetime reprisal, protection of one’s own nationals, humanitarian intervention, hot pursuit, piracy, and self-help. Some of these have a high acceptance level by the world community as measured by the customary practice of states and by the writings of respected international law scholars; others do not. Understanding these arguments in conjunction with those previously discussed will provide a panorama of international law regarding the use of force today.
Invitation When consent is given by a host state to another state’s foreign military presence and activity within its territory, then as a matter of law no intervention or interposition occurs. The foreign armed forces are said to be invited. Invitation is a right of every sovereign and consent given in advance exonerates the foreign state from international responsibility as an intervenor. Use of armed force abroad may be legitimated by invitation. The difficulty with the concept of invitation, a legal concept that has an extremely high acceptance level, is in its application to factual circumstances. Three basic conditions must exist for there to be a valid invitation: it must be made by the lawful government, the official extending the invitation must have the constitutional authority to do so, and it must be freely made without coercion or intimidation. 1 Invitation may be a very useful approach to dealing with international terrorism especially since some countries may lack the technological and military means of responding to modern terrorists and their state sponsors and supporters. A good example of this situation was Somalia’s inviting the Federal Republic of Germany to rescue the hostages of the Lufthansa flight hijacked to Mogadishu in 1977. 2 Unlike the Mogadishu incident, many situations in which invitation is claimed are unclear because the facts underlying the invitation are questionable or uncertain. The following examples demonstrate this point. The 1961 intervention by the United Kingdom at the request of Kuwait has been criticized because “no bona fide invitation could be made or received, as Kuwait was a part of Iraq, and not a sovereign State at all.” 3 The Hungarian government was considered “incapable of making a free invitation” to the Soviet Union in 1956. 4 The alleged 1968 Czechoslovakian invitation to the Soviets evaporated in denials by the Prague government and the USSR had to find other grounds to justify its action. Columbia University law professor Oscar Schachter writes, When the Soviet Union sent troops into Czechoslovakia in 1968, for example, it asserted that this action came in response to that government’s “urgent” request for assistance. After this justification had been repudiated repeatedly byte Czechoslovak National Assembly, and was specifically disavowed in a message from the Czechoslovak Foreign Ministry to the [UN] Security Council, the Soviet Union relied instead on a more general claim of self-defense under the U.N. Charter. Not surprisingly, most outsiders viewed many of these legal contentions skeptically. 5 Free consent is integral to invitation. It does not exist in circumstances such as those described by Henry Fielding in Jonathan Wild that he “would have ravished her, if she had not, by timely compliance, prevented him.” The United States claimed invitation as one of the grounds justifying its 1983 action in Grenada. Much has been written about this case because so many of the facts bearing on the
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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
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ABOUT THE AUTHOR Lt Col Richard J.
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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
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Combating terrorism accents this is
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7. Many scholars and jurists have f
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Jenkins, “Combatting Terrorism Be
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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
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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
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International Terrorism and the Dut
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government exercises within its ter
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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 136 and 137: The danger of conceding to individu
Page 138 and 139: Fifth, and finally, article 52, par
Page 140 and 141: 12. See Rosalyn Higgins, “The Leg
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
Page 186 and 187: Crelinsten, Ronald D., Danielle Lab
Page 188 and 189: 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
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Livingstone, Neil C., and Terrell B
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Paust, Jordan 5. “Entebbe and Sel
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______. “Problems with the Applic
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Blum, Yehuda. State Terrorism and t
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“European Convention on the Suppr
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______. Arms Control and Disarmamen
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______. “Terrorist Attacks on US
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