The Law on the Use of Force & The Law of Armed Conflict
25 important questions on The Law on the Use of Force & The Law of Armed Conflict
What is the The Law on the Use of Force (jus ad bellum) and where is it's legal basis?
- UN Charter
- Customary International Law
What is the basic rule about the law on the use of force?
What is the historical development about The Law on the Use of Force (jus ad bellum)?
- 1919 League of Nations Covenant: put a prohibition on war, but not in an absolute way. It only put limitations, but it did not establish a general prohibition like we see in the UN-Charter.
- 1928 Kellog Briand Pact: instrument that contained an absolute prohibition on the use of force within international relations.
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What were some complications about the Kellog Briand Pact (1928)?
- The part was not part of the nation's system, it was separate.
- It had a limited number of state parties.
- It did not comply with sanctions in the case of non-compliance.
What is the Explanation of the text of art. 2(4) UN-Charter? --> 'international relations'
Explanation of the text of art. 2(4) UN-Charter:
“International Relations” = interstate use of force. So this does not conclude the states of one state within its territory against its own people.
What is the Explanation of the text of art. 2(4) UN-Charter? --> 'force'
“Force” = this prohibition captures every threat or use of armed force (from one state to another state).
There are forms of direct and indirect force:
→ Direct armed force; the use of force regulated by the regular armed forces of one state.
→ Indirect armed force; a state's use of force through other actors (like rebel groups (contras), another states,
private individuals)
What is the explanation of the text of art. 2(4) UN-Charter? --> “Against the territorial integrity or political independence…”
“Against the territorial integrity or political independence…” = this phrase is meant to particularly grave situations in which the use of force is being used. It is not meant to limit the scope of article 2(4) (you can see that in the manner “in any other manner…”), but it is meant to make clear that the prohibition applies in other instances where there is not perhaps a threat of political independence or territorial integrity.
What are the exceptions on the use of force?
2. Chapter VII Enforcement Actions UN-Charter
What are the requirements for individual self-defence?
- ‘armed attack’ ( §195)
- Necessity & proportionality (§176)
What is collective self-defence (Nicaragua §193, 195, 199) ?
What are the requirements for collective self-defence?
- Victim state entitled to exercise individual S-D
- Victim state declares itself to be victim (of armed attack)
- Victim state requests assistance
Is anticipatory self-defence a possibility?
When taken a further look into art. 51 UN-charter, it seems to exclude the possibility of anticipatory self-defence (“if an armed attack occurs”).
What is Preemptive/preventive self-defence?
What is meant by forcible measures (art. 42 UN-Charter)?
- The SC can take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security.
According to art. 48 UN-Charter, when the SC takes a decision in a resolution adopted under chapter VII, those decisions require...
What is The Law of Armed Conflict (jus in bello) (International Humanitarian Law/Law of War)?
What is the legal basis of the law of armed conflict?
- The sources of law are quite different from the law on the use of force: 1949 Geneva Conventions, additional protocols, other treaties, customary international law.
- Again, treaty law and customary international law are existing parallel next to each other.
Does the Law of Armed Conflict also aply if parties of a conflict have iniatlly entered the conflict in a lawful matter?
When does the LOAC apply for non-international Armed Conflicts?
Who can participate in hostilities? → Combatants vs Civilians. A distinction needs to be made between:
2. Unlawful Combatants
What are lawful combatants?
Is someone who can lawfully participate in hostilities (=vijandelijkheden). Because this person is a lawful combatant, when they get captured, they need to get the ‘prisoner of war’-status. They also can not be prosecuted for their conduct (=their participation in war) by the other side.
There are two types of lawful combatants;
- Regular armed forces (GCIII Art 4(A)(1)): these people wear uniforms (easy to recognize).
- Irregular, Lawful Combatants (GCIII Art 4(A)(2); see also API Art 44(3)): not part of the regular armed forces of the state. (for example; in the Ukraine there were foreign veterans that travelled to the Ukraine to fight Russia, and could be qualified as irregular, but still lawful combatants).
What are unlawful combatants?
An unlawful combatant is a civilian that participates in hostilities.
Such a civilian is not entitled to prisoner of war status,
when captured by the other side. They can indeed be
prosecuted by the other side for their participation in hostilities.
For the distinction of lawful combatants, take a look at GCIII Art. 4
In practice, this distinction is often a problem, where lawful
Combatants are not recognized as lawful combatants.
Who/what can be attacked during an armed conflict? What is a legitimate target?
--> there are two fundamental principles who help you determine this:
2. Principle of proportionality
Geneva Conventions Common Article 3
When do we have a non-international armed conflict? → Requirements:
- State and non-state actor
- Level of violence that surpasses certain minimum threshold (protracted armed violence)
- Both parties to conflict are militarily organised
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