Law of armed conflicts
What does the Kellog-Biand pact forbids?
What is not forbidden?
- recourse to war
- use of force
Difference between war and use of force requirements?
- War = formal declaration + structured military operation
- Use of force = no declaration + short of war actions
What is the ordinary interpetation of "use of force"?:
- Physical violence
Expressions used to define "use of violence" in the UN Charter + ex. art.
art. 42 UN Charter: military violent actions/ military force/activity
Def of "crime of aggression"
Source and art.
Examples x2
- Military violence
- GA Resolution art.3
- bombing or blockade
What is a blockade?
Physical islation/surrouding/closing off of a port/harbour by hostile troops or ships to prevent the passage of goods and people
What is the definition of attack and violence in the Addittional protocol in the Geneva Convetion? + art.
- art. 49
- act of violence against an enemy in offence or defence
According to a traditional interpretation of art.2.4 of UN Charter, can a State victim of cognitive warfare act in self defence?
Why?
No
Because it is not considered a use of force in the traditional sense (=physical violence)
What is cognitive warfare?
Military and ideological strategy that treats the human mind as a battlefield, aiming to influence, disrupt or control how individuals and societies perceive reality
What is law in peacetime called?
2 examples?
- IUS AD BELLUM
- HR law, environmental law
What is law in wartime called?
What kind of law is it?
What does it rules?
What doesn't it rules? Why?
- IUS IN BELLO
- Lex specialis
- How actors exercise force (=who can be attacked, rules concerning weaponts, treatment of enemies, military targets
- Why force is used because it's still IUS AD BELLUM
What is a "lex specialis"?
A special law that applies as a way of exception
Is IL in a period of crisis? Why?
No, because IL is just a tool, it's thse that use it that can enter in a state of crisis
What are the 2 branches of IUS IN BELLO?
Together what do they create?
- 1) Hague Conventions, 2) Geneva Conventions
- Humanitarian Law
What is the goal of the Hague Conventions?
What pushed States to reflect on hee topic?
- Protect the enemy on the battlefield to mak war more human
- The technological revolution of the 1900 because of the evelopment of chemical weapons etc...
What is the goal of the Geneva Conventions?
Can civilians be attacked for some reason?
- Protect civilians
- No, civilians and their infrastructure can under no circumstance be attacked
Is Humanitarian Law the same of HR law?
Can Humanitarian Law derogate HR law? Why?
- No, HR is in peacetime, the other in wartime
- Yes, beecause it's lex specialis
What is the basic principle of HR Law?
Does this still stand in Humanitarian law?
What also changes from peacetime?
- Killing someone (a criminal) must be the last resort
- No, in war an enemy can be killed without justification
- Weapons
Whaat is another branch of IUS IN BELLO and humanitaria law? What is it about?
- Disarmament Law
- Body of rule that deals with destroying weapons that States already have and also prohibiting the use of new ones
When did traditinal IL develop?
At that point what was the starting point of IL?
Was there a form of use of force that required justification?
- After the Wesphalian treaties
- Freedom of war (=sovereignty), that States coul wage without obligations to justify themselves
- Retaliation/reprisal
In the period of the Wesphalian treaty what was the exception to freedom of war?
Retaliation/reprisal
When/what was the first time States came together to create an instrument that was an exception to th right of war after WW1?
What des art. 10 f this say?
- Covenant of the LoN
- In case of aggression of a MS or threat or danger of aggression the Council shall advise upon the means by which the MSs have to intervene in its protection
What were the options for the peaceful settlement of disputes for the LoN?
1) Political: refer the question to the Council that would adopt a resoluton giving instruction to the States involved
2) Judicial: going in front of the Permanet Court of Int. Justice
What was the proceedural limitation of peaceful settlements in the system f the LoNs?
How is this called?
Is it still present in the UN?
- States were still allowed to make war after 3 month following either the decision of te council or the court if a State is not complying with the resolution of the council or the judgement of the Court
- Self enforcementof cmpliance to the judgement or decision of the LoN
- No
Kellog-Briand art. 1?
So...
- Prohibits the use of war to resolve disputes
- War is not longer a legitimate tool of foreign and international policy
What are the problems with art. 1 of the Kellogg-Briand pact? X5
1) Only MSs renounce to war as a means to resolve disputes
2) A treaty like this between allies is quite useless, it's useful only if it involves also enemies
3) Retaliatin is not renounced, it just need to be justified
4) The useo f the term "war" excludes all that are "short of war mesures" which are therefore still allowed
5) There is no definition of "war"
At the time of the Kellog Briand pact what was the main requirement of "war" according to customary IL?
If this requirement is not met it's not "war", so what is it?
Was it allowed?
- The presence of a formal declaratin of war
- Use of force
- Yes
What does the Saint James Agreement do?
It reiterates the Kellog Briand pact but it was concluded among the western countries of European culture,so not Russia ecc... which had their own version or the pact, the St. Petersbourg Declaration
Is the UN Charter balanced and unbiased?
Despite what?
- No
- art. 2 and the expression "sovereign equality of all Members"
Was the UN born on discrimination? In what sense?
Of which countries?
With what approach?
- Yes,it was created by a group of states of European tradition and was sold to other States as the best way to deal with matters of peace and security
- Enemies and "non-civilised" States
- Colonial approaach
Art. 2.3 UN Charter?
Was this principle reaffirmed through other means? If yes which one?
Why did(n't) they do this?
Is this principle binding today?
- MSs must settle disputes X peaceful means established principle of IL
- Yes, the Manilla Declaration of 1982
- Many States were excluded from the negotiation (decolonised States) and wanted to contribute to to the affirmance of this principle
- Yes
What is the problem with the principle of peaceful settlement of disputes?
The sources of IL are treaties, custom and PRACTICE of States. Considering that there is a systematic silence among States when it comes to codamning the violation of this principle, could this principle be derogated?
The sources of IL are treaties, custom and PRACTICE of States. Considering that there is a systematic silence among States when it comes to codamning the violation of the principle stated at art. 2.3 of the UN Charter, could this principle be derogated?
Yes, but not thrugh State practice alone and it's very improbable because it's Ius Congens (which can only be derogaed by a more recent Ius Cogens principle)
Art. 2.4 UN Charter?
All MSs shall refrain in their int. relations from the threat or use of force Vs the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the UN.
Problems with art. 2.4 UN Charter? X4
1) Only binds MSs, although it's true that nowadays is not really a problem because almost all States are in the UN therefore a customary law has emerged, which bounds non-MSs as well
2) Only binds States
3) It doesn not concern domestic violence
4) Not justa prohibition of use of force but also threat of it
Is non-state actor bound by art. 2.4?
By the custom law that says the same thing?
- No
- No, but they are regulated by other legal frameworks
Is Paestine bound by art.2.4 of UN Charter or the customary law stating the same thing?
Generally yes, to the extent Palestine is a State, it is bound by the customary law (=if it's not considered a State then it's nt bound)
Are terrorist org. bound by art. 2.4 of UN Charter or the customary law thatstates the same thing?
But...
- No, unless they are controlled by a State
- ...their violene is still illegal under other legal frameworks (ex. int. criminal law)
What is the "unwillingor unablee theory"?
Wha does it say?
Who has primal responsibility to stop terrorist org. hiding in the territry of a State?
What technique is used?
- A theory created by the US to justify attacks to a terrorist org. hiding in the terrory of another State
- If the host state is not willing or able to stop terrorists in their own territory then the US are allowed to take matters in their own hands
- The host State
- Target killing
Is the US approch (targeted killings and unwilling or unable theory) shared by ther States?
Generally yes, some have used the sme approach (Cnada, UK, Russia, Israel ecc...) and the others don't oppose it
Does art.2.4 or the relative customary law bind Taiwan?
Depends, according to China it's not a State so the rule is not applicable but according to Europe or the US it's a State so it applies
Is State-sponsored terrorism a violation f art. 2.4?
Yes, this means that the State is being considered a terrorist itself because in its sovereign functions it carries out terrorist activities
What does art. 2.4 of the UN Charter and the relative customary law not apply to Taiwan according to China?
Taiwan is not considered a State by China but rather a Chinese sub-region and art.2.4 only applies to INTERNATIONAL relations beetween STATES
Is race to (nuclear) armaments a threat of use of force and therefore aa violation of art. 2.4 of the UN Charter? + reference to ICJ judgement X2
ICJ 1996 US-Nicaragua judgement and advisory opinion 1996on nuclear weapons: rush to nuclear weapons or regular ones is not a threat of ue of force and therefore a violation of 2.4 unless there is a mental element, a policy of aggression
Is the current EU stockpiling of weapons a violtion of art. 2.4 UN Charter?
No, it's defensive so it lacks an acggressive policy which is the mental requirement for rush to armaments to represent a violation of art. 2.4
Is the placement of military ships near a country's coast or passageor military aircrafts in another country's airspace a violation of art. 2.4 of UN Charter? + ICJ judgments and ex.
Other cases?
- Old judgement UK VS Albania in Corfu related to the passage of military sips in international straits : it's not a violation unless there is the mental element of an aggressive policy (ex. weapons need to pass through with the weapons pointed at the deck, if they are aimed at the coast raady to shoot it's a violation)
- 1) US ships close to Brasilian coasts, 2) Russian submarines in Mediterranean Sea, 3) US military ships close to Taiwan
Is the threat of bombing of a country territory a violation of art. 2.4 UN Charter?
Is the recent case of Greenland a violation?
- Yes
- No, there wasn't a clear aggressive intent
Does IL find application in cyber space?
Yes
Is a cyber attack a violation of art.2.4?
Is there a solution?
- There isn't a consensus, States usually committing these attacks say that it isn't (ex. Russia, Usa, Canada, Israel, those vulnerable to them say they are
- Generally speaking they are considered an attack if they have real life consequences (ex. opening a dam, shutting down the security system ofa nuclear plant)
What are some ex. cyber attacks thatare not a violation of art. 2.4?
Are they legal?
Can the victim act in self defence?
- Enter the stock exchange, enter the website of the Pentagon and take all info
- No
- No
What is the point of defining a cyber attack as an illegal act that is not a violation of art. 2.4 for countries like the US, France, UK, Canada and China?
The aim is to not make the victim counterattack as itwould be illegal
A cyber attack that is not considered a violation of 2.4 can still be a violation of what other principle?
Principle of non interference of domestic affairs
What do EU countries think of cyber attacks that don't have real life consequences? X2
Example?
What do the Netherlands say?
- They still amount to a violtion of art.2.4 if they have severe governamental consequences or if they prevent the victim form performing its functions
- Attack of hospital databases making them inaccessible
-Theey havee a very isolating opinion: if the cyber attack causes severe impairement then it's a violation of art.2.4 BUT it is violation of 2.4 also if there are grave economic consequences
If there is a vilation of art. 2.4 through a cyber attack can the victim defend itself using military force?
Yes
Is economic pressure a violation of art.2.4?
No
Is collecting information for future attacks for example using satellites for espionage a use of force or a threat of it?
No
what is the main limit of art. 2.4 of the UN Charter?
It was not conceived for attacks form non-State actors
Does art. 2.4 apply to non-Staate actors?
No
What does art. 2.4 of UN Charter intend to protect? X3
What is not intended to protect?
- 1) territorial integrity, 2) political independence, 3) purpose of UN
- The people
Example of how a State can compromise the political independence of another State?
War by proxy
What is "war by proxy"?
An armed conflict where States support third parties to fight (combatants, militias, rebels or other states) on their behalf instead of directly ingaging eachother.
Is war by poxy a violation of art. 2.4?
Yes if the State has effective control over the agents
Is using force to promote a regime change in another State against art. 2.4?
Yes
Considering that violations of art. 2.4 of the Charter aims at the protectin of the States's territory, political independence and he purpose of the UN, Iran's attack at the US embassy in Barein threatens which one(s) of those elements?
Who is entitled to self defend in this case?
Territory and purpose of the UN
US and Barein
In order for self defence to be allowed, the attack must be...
Which means?
Which case determined this rule?
- ... sufficiently grave
- oganised and intentional
- 186 Nicaragua Vs US ICJ decision
Case: out of the coast of the US there was a yacht that was probably practicing contraband activity that was intercepted by the US military. The ship refused access to the US military so the military shot an killed a man. Is this use of force vs a state?
Ships are considered to be a floating territory of the State so attacking the ship is like violating the State's flag (= a violation of 2.4 for territorial integrity) BUT in this case the other State cannot answer in self defence because there wasn't an intention to attack the other State so the action is considered not sufficiently grave.
Is the UN Charter the legal basis for self defence?
No, it's something that pre-exists the UN so it's right that cannot be eliminated by it
Is anticipated self defence allowed?
Requirements for self defece to be legal?
- Yes
- The response must: 1) follow the attack, 2) be necessary, 3) be immediate, 4) be proportionate
Why does the response in self defence to a foreign attack have to be "immediate"?
In practice?
- The State can respond NOT to attack the enemy, but to prevent future threats. So if one responds when there is an agreement this is not lawful self defence because there is no threat anymore
- In practice, States have waited many months before responding, arguing that they were still in danger
Example of some weapons that are by definition disproportionate
Are these weapons ever considered legitimate?
- Nuclear bombs
- Yes, if theey are necessary foor the survival of the State. It's a "last resort" option
Can a State use its self defence right before they are hit by a foreign attack?
Yes, in anticipated self defence as long as the foreign attack is already in progress
Is the principle of reversibility present in wartime law? why?
No because reversibility is not possible in military terms, the damage that war causes cannot be undone
What is preemptive self defence?
What is an example?
Is it allowed?
- It's a doctrine allowing military action to prevent an imminent attack instead of waiting for a direct hit
- You must have information that a country has weapons of mass destruction that will be used against you
- Not for now, countries like Israel and the US use it though
Is the second round of self defence legitimate (claim self defence from self defence)?
No, it has noo legal basis in IL
Do States that act in self defence need the authorisation of the SC? But?
No, but they must notify it of what they are going to do and why
What is the limit to the right to self defence (in relation to UN action)?
The exercise of the SC's functions (Chapter VI-VII). States have individual right to self defence so long that it doesn't compromise SC's interventions to restore peace and security
What is collective self defence?
It's an inherent right recognised under art. 51 UN Charter allowing allied states to assist a parter that is victim of an unlawful armed attack
Are regimes of collective self defence based on geographical or geopolitical interests?
Geopolitical
A State that is part of a collective self defence mechanism but is not the direct victim can trigger the self defence mechanism or not bypassing the victim's will?
Judgement?
- No, there is a difference between direct and indirect victims
- 1986 judgement US-Nicaragua reasoned in terms that the direct victim has discretionality in choosing when to respond so the indirect victim is not allowed to autonomously trigger self defense unless there is consent of the direct victim.
In regimes of collective self defence, if one of the MSs asks for help are you obliged to give them weapons, access to military bases etc?
No, the State needs first to be victim of a violation of art. 2.4 of the UN Charter inorder to lawfully invoke collective self defence. Also, States give assistance but they in accordance with their legal systems so they don't necessarily have to give weapons or access to military bases, they do what they think is appropriate.
Are the substantive rules for self defence and coollective self defence the same?
So?
- Yes
- After an armed attack, proportionate, necessary, immediate and communicated to the SC
What are cases in which the use of force is lawful?
1) Self defence
2) Consent of the victim
3) Protection of own nationals
4) Protection of foreigncivilians from their own government
5) Responsibility to protect
Requirements for the use of force t be lawful in case of cnsen of he victim?
So we can say that consent...
Who gives it? X4
- Consent needs to be present and actual
- ... offers the framework of lawfulness and binds the State
- 1) Ambassadors, 2) Head of gov., 3) Ministers of foreign affairs, 4) Head of State.
What is the idea behind the use of force to protect own national in a foreign country?
How are nationals conceptualised in this case?
Is it a sub-rule of sef defence? What if it is?
- The idea is that of a rescue operation
- As part of a State's territory
- Some think it's an alternative way to exercise self defence so accroding to them all requirements and rule of self defence apply to this too (ex. necessity, proportionality ecc...)
What is the problem with self defence used to protect own nationals abroad?
Examples? X3
- It can be used as a justification encourage a regime change
- Israeli operation in Uganda, Nazi Germany, Russia in Donbas
What is the case of Russia in Donbas about?
Why is it relevant?
- In order to justify its attacks in Donbas Russians claimed that Russians in the area were victims of genocide. The ICJ still didn't find this ction legitimate because there re different ways to intervene to stop a genocide, war and use of force are not alternatives
- It's a relevant case of a State trying to use the "use of force to defend own nationals aborad" justtification for military attacks
Can use of force to protect foreign civilians from their own goovernment justify a regime change forced by the foreign defender?
No
Requirement for legitimate intervention to protect foreign civilians from their own government?
Problem?
- People must be victims of severe HR violations
- What do we mean with "severe HR violation"?
Was the US use of force in Nicaragua considered legitimate?
What did the US think?
What was the ICJ judgement? Paragraph?
- No
- They justified it saying that they acted in protection of HR (which they assumed Nicaragua was systematically violating)
- No, the ICJ did not recognise a right to use force aginst another state because they are accused of violating HR, it didn't accept i as a legal basis for force = Paragraph 267-268= ICJ said that the use of force is not a legitimate HR enforcement mechanism under IL
Was Paragraph 267-268 (use of force is not a legitimate HR enforcement mechanism under IL) changed by subsequent state practice? Example?
No, military interventions in Siria by US, F., UK---> in the entire world only 2 States said that the action was perfectly legal so one of the State attacking said that their own actions were not legal (it was the US, it was an ethically groudned intervention but not necessarily lawful)
Is intervention to protect HR allowed?
Yes, but not through force
What is R2P?
"Responsibility to protect" is the principle that states must protect populations from mass atrocity crimes, and if they fail, the international community has a responsibility—through lawful UN processes—to respond.
Is the R2P principle lawfully applicable individually by States?
But...
- No, States are not allowed to unilaterally act to protect other pop. using force the only actor that can do this is the SC in accordance with Chapter 7
- ... even then, to stop crimes against humanity not just to protect HR
What is the source for crimes against humanity?
What does it say?
Examples?
- Rome Statute of the ICC
- They are systematic (crimes that are not limited in time and follow is a political pattern) OR widespread (huge number of cases). Intervention needs authorization of the SC, if a State uses force before it then it's a violation of IL
- Enslavement, deportantion, murder, extermination
Is subsequent authorisation to use force given by the SC a legitimate principle?
Why?
- No, the Charter only mentions preliminary authorisation
- Post authrisation is a validation of something that has already been done, it's a ratification not an authorisation
It's true that SC needs to give the authorisation to States for them to use force but what if the SC doesn't act? x2
There are no answers yet.
1) States have delegated the UN to maintain peace but if it's a delegation it means that the State has the original power that has then been given to the UN-->if the SC is not fulfilling its functions and duties (= if the SC votes a resolution and it is not adopted then it's ok, but f the SC is unable to adopt any resolution because one State keeps systematically imposing a veto then the SC is structurally unable to function and States can act in substitution regime) to then the power goes back to the States that are allowed to intervene in regime of substitution to the UN which is very dangerous.
2) The other option is that we stick to the UN system and the competence must be transferred to the GA.
Is Il eequally developed for international and non-interantional conflicts?
Why?
Is there moe freedom if the enemy is a rebel or a foreign soldier?
- No, it's less developed for non-international ones
- Because IL was initially aimed at limiting States in international conflicts
- Rebel
What is the leagal source for neutrality?
Convention respecting the rights and duties of neutral States
What happens if a State violates neutrality rules?
It enters the conflict, becomes an enemy and can be attack
Art. 1 of Convention respecting the rights and duties of neutral States? X2
1) Each party of the conflict is not allowed to attack the territory of a neutral State, 2) if a state declares that it is a neutral power but it is attacked it has the right to self defence BUT it's still neutral= it's enforcing its neutrality