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

1919 a process has been under way that has resulted in the elimination of the right of states to go
to war. See Max Sorensen, Manual of Public International Law (New York: St. Martin’s Press,
1968), 742.
Although states did not agree in the Covenant of the League of Nations to renounce war,
they did agree to a procedure to regulate resorting to it. Members affirmed that they would not
resort to war until three months after an award by arbitrators, a judicial decision, or a report of
the Council had been ordered (article 12). Resort to war was forbidden against any state that had
complied with such arbitral award or judicial decision (article 13), or, if unanimously agreed to
by those Council members not a party to the dispute, any state which complied with the
recommendation of the report of the Council (article 15). See Rosalyn Higgins, “The Legal
Limits to the Use of Force by Sovereign States: United Nations Practice,” in British Year Book
of International Law, 1961, vol. 37 (Oxford, England: Oxford University Press for Royal
Institute for International Affairs, 1962), 272.
In 1928 the Pact of Paris, otherwise known as the Kellogg-Briand Pact, was ratified. In
this agreement the high contracting parties, as they were called, agreed to condemn recourse to
war as a solution for international disputes and to renounce war as an instrument of foreign
policy. See Department of State, Office of the Legal Adviser, Digest of International Law, vol.
12, ed. Marjorie M. Whiteman (Washington, D.C.: August 1971), 3, State Department, 8586.
The ban on declaring war was reaffirmed at the San Francisco Conference in 1945. “When the
United Nations (UN) Charter was adopted,” writes Oscar Schachter, Hamilton Fish Professor of
International Law and Diplomacy at Columbia University, “it was generally considered to have
outlawed war.” Schachter, “The Right of States to Use Armed Force,” Michigan Law Review 82
(April-May 1984): 1620.
47. See William W. Bishop, Jr., International Law: Cases and Materials, 2d ed. (Boston:
Little, Brown and Co., 1962), 744; and Neil C. Livingstone and Terrell E. Arnold, “The Rise of
State-Sponsored Terrorism,” in Fighting Back, ed. Livingstone and Arnold, 23.
48. Harlow, 97-98.
49. See generally Field Manual (FM) 27-10, The Law of Land Warfare; Naval Warfare
Information Publication (NWIP) 10-2, Law of Naval Warfare; and Air Force Pamphlet (AFP)
110-31, International Law—The Conduct of Armed Conflict and Air Operations. See also
“Geneva Convention Relative to the Treatment of Prisoners of War” (Geneva Convention III),
12 August 1949, TIAS 3364, UST, vol.6, pt. 3, article 3, 3316; UNTS, vol. 75 (1950), no. 972,
135.
50. See “Convention Respecting the Rights and Duties of Neutral Powers and Persons in
Case of War on Land” (Hague Convention IV), 18 October 1907, Statutes at Large, vol. 36, sec.
2310; United States Treaty Series (TS) 540; United States Treaties and Other International
Agreements, 1776-1949, compiled under the direction of Charles I. Bevans (hereinafter Bevans),
vol. 1, Multilateral, 1776-1917, 654.
51. “Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field” (Geneva Convention I), 12 August 1949, TIAS 3362, UST, vol. 6,
pt. 3, common article 2, 3114; UNTS, vol. 75 (1950), no. 970, 31; “Geneva Convention for the
Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea” (Geneva Convention II), 12 August 1949, TIAS 3363, UST, vol. 6, pt. 3, 3217;
UNTS, vol. 75 (1950), no. 971, 85; Geneva Convention III; and “Geneva Convention Relative to
the Protection of Civilian Persons in Time of War” (Geneva Convention IV), 11 August 1949,
TIAS 3365, UST, vol. 6, pt. 3, 3516; UNTS, vol. 75 (1950), no. 973, 287.