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

More documents

Recommendations

Info

Piracy, which is limited to illegal actions taken on the high seas from one private ship to another for private gain, appears inapplicable to the international terrorist situation. Invitation is a unique legal argument because it, in effect, changes the legal relations among the parties. There is no issue of inviolability of territorial sovereignty nor of use of armed force against another state. The only real issue is the validity of the invitation itself. Regional peacekeeping actions offer a special opportunity to respond to terrorism in a collective manner if the will to act in concert exists and the other requirements for this kind of action can be satisfied. Because of the requirement of prior authorization of the UN Security Council, regional enforcement action, on the other hand, is not likely to be a viable option. Appendix A identifies each of these legal arguments or options and their conditions. No matter which option is selected, certain fundamental minimum standards must be met. 1. The use of armed force must be strictly limited to the purpose authorizing its use in the first place. If in self-defense, then the action must be protective, not punitive. If to protect one’s own nationals, then the action must not seek to protect nationals of other countries or to reorder the domestic political system. If by invitation, then the action must be limited to the terms of the invitation and must be terminated when the invitation is withdrawn by proper authorities. An action based upon many legal arguments—such as the 1983 US action in Grenada, which was based on protection of one’s nationals, regional peacekeeping, and invitation—not only broadens the purpose for which the armed force may be used but strengthens the overall case for a military presence. 2. The use of military force must be proportional to the injury suffered and the military objective sought. It must not be excessive. Only military targets may be subject to direct attack and collateral civilian damage and injury must be minimized. 3. The use of force must be as a last resort. Pacific remedies, if available, must be exhausted. 4. Report of the action must be made promptly to the appropriate world community organs. These minimum standards, combined with the more specific conditions of a particular legal argument or option, will affect both the planning and execution of the military action including targets, tactics, and weapons used. What, then, is the current situation? Terrorism is not an international crime. Terrorism per se is not outlawed although specific acts of terrorists are violations of the laws of most domestic legal systems. Some acts of terrorists, such as aerial hijacking, posting letter bombs, and violence directed at diplomats, are addressed in international law. But international law leaves prosecution and punishment to the domestic legal systems of nation-states. The extradition process, plagued by the political exception rule, has been less than effective. Terrorists receive much limelight,
and far too few end up imprisoned for their violent acts of criminal misconduct. A military response to international terrorists and their sponsors and supporters is limited by the legal arguments or options available in international law for the lawful use of armed force abroad. The presumption is against the legitimacy of military intervention and the use of force. The state exercising the use of force has a heavy burden of proof if it is to show that its actions are justified in law. Fundamentally the acting state must persuade the world community and its public at home that, in the particular situation in which it acted, the harm that the intervention and the use of force inflicted on international order was not as great as the threat posed if international terrorism went unchecked. The basic underlying purpose of all law is to balance interests. For the present, the scales of international law may seem out of balance, favoring terrorism over intervention and a forcible response. But if this state of affairs exists, it does so only because the world community has not come to see terrorism as a threat so serious and compelling as to mandate a readjustment of the scales. By electing a law enforcement approach to international terrorism, states that are victims of terrorism have reaffirmed the current balance of interests. These states have assessed international terrorism and found it to be essentially a challenge for civilian police authorities and not a type of armed conflict threatening the fiber of the international community. In these circumstances, use of military force as a terrible swift sword rarely will he legally justified and victim states will be reduced to issuing lame warnings about the use of military force that over time will have an adverse impact on the credibility of their response to the terrorist threat.
Page 2 and 3:
LEGITIMATE USE OF MILITARY FORCE AG
Page 4 and 5:
CONTENTS Page Disclaimer ii Forewor
Page 6 and 7:
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
Page 12 and 13:
Chapter 7 summarizes the lessons le
Page 14 and 15:
This Study, How Meaningful? States
Page 16 and 17:
The international arena has seen so
Page 18 and 19:
Combating terrorism accents this is
Page 20 and 21:
7. Many scholars and jurists have f
Page 22 and 23:
Jenkins, “Combatting Terrorism Be
Page 24 and 25:
Thoughts toward an International Co
Page 26 and 27:
29. See Vice President, Report on C
Page 28 and 29:
CHAPTER 1 WHAT IS TERRORISM AND HOW
Page 30 and 31:
If a general definition would be so
Page 32 and 33:
Terrorism is the unlawful use or th
Page 34 and 35:
International Terrorism: A Working
Page 36 and 37:
there is evidence that President Id
Page 38 and 39:
The Vice President’s Task Force o
Page 40 and 41:
A Threat More Serious Than Numbers
Page 42 and 43:
Diplomatic relations between countr
Page 44 and 45:
And what has the challenge become?
Page 46 and 47:
physically or by neutralizing their
Page 48 and 49:
27. UN General Assembly, resolution
Page 50 and 51:
44. L. C. Green of the University o
Page 52 and 53:
65. Information provided by L. Cart
Page 54 and 55:
105. See Stephen Sloan, Beating int
Page 56 and 57:
The law of armed conflict approach
Page 58 and 59:
But, as regards terrorism, the arme
Page 60 and 61:
1. If the law of armed conflict is
Page 62 and 63:
Although both approaches, law enfor
Page 64 and 65:
crime involved. This initiative has
Page 66 and 67:
Symbionese Liberation Army (SLA) wa
Page 68 and 69:
eaches, prosecution, and extraditio
Page 70 and 71:
the latter instance, no one claimed
Page 72 and 73:
international law establishing indi
Page 74 and 75:
Another issue is the choice and use
Page 76 and 77:
NOTES 1. Department of State, “Li
Page 78 and 79:
28. Paul A. Tharp, Jr., “The Laws
Page 80 and 81:
1919 a process has been under way t
Page 82 and 83:
66. See Geneva Convention IV, artic
Page 84 and 85:
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 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 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 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
Page 192 and 193: 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
Page 198 and 199: ______. “Problems with the Applic
Page 200 and 201: 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
show all

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

Create successful ePaper yourself

Delete template?

Save as template?