In the 19th and 20th centuries, the international legal circuits rejected the just war doctrine prevailed during the 5th and 6th centuries, which was pursued to avenge injuries against the enemy. War became a legitimate exercise of sovereign power, and sometimes inevitable if the parties involved chose so. Despite of its perceived legality, use of force was subject to restraints set forth by treaties, for example the 1907 Hague Convention No. II, and the authority of the general international law.
According the UN Charter, the Security Council should be the sole grantor of legitimacy regarding the use of force, assuming that all member states abide by Article 2 (4). The exceptions to the use of force without Security Council's approval would be the states' inherent right of self-defense (individual or collective) against an armed attack and only pending UN measures. Chapter VII lists several other measures to combat a belligerent state such as sanctions, with the approval of the major powers, before agreeing on the collective use of force to counter threats to peace and security. Article 51, which held legitimate “the inherent right of individual or collective self-defense in response to an “armed attack” even before the Security Council takes “the necessary measures to maintain international peace and security”
The Caroline case has been regarded as legal foundation of international law rules governing the legality of use of force in self-defense. The Caroline dictum says that every state has a right to strike first when the threat posed is "instant, overwhelming, leaving no choice of means and no moment for deliberation.". The Nuremberg Tribunal invoked the rule in Caroline when rejecting German leaders’ arguments that they had been entitled to attack Norway in self-defense. The concept of anticipatory or preemptive self-defense was then created, particularly in the context of nuclear strategy by some publicists as result of the Caroline case arguing that the right of self-defense was available when “the necessity of that self-defense is instant, overwhelming and leaving no choice of means and no moment for deliberation”. However, following WWI, states adopted new legal constraints on the use of force (p. 547). After WWII, the UN Charter generally prohibited the unilateral use of force by states.
Less than a decade into the 21st century, there is already a widespread sense that the world faces challenges and threats of unprecedented scope, scale and complexity. Global terrorism emerged as one of the main challenges to international peace and security since beginning of the 21st century. The current rules of international law were written for conventional, inter-state conflicts, while even the definition of terrorism and terrorists remains elusive and ill-defined. Yet, in the era of globalization and heightened interconnectedness, the existing international organizations, mainly the UN through its organizations such the Security Council, the General Assembly and International Court of Justice should remain at the forefront to meet the challenges of world peace in the 21 century.
Paul Szasz in 2002 argued that in recent years the Security Council has increasingly adopted decisions that deal not with any particular conflict or situation but, rather with conflicts in general. Thus, it has addressed the protection of children and civilians, the role of women with respect to peace and security, humanitarian questions and even international terrorism. Nevertheless, the operative paragraphs of these resolutions are not formulated in compulsory terms. He added that the council might even consider extreme violations of human rights or humanitarian law, or massive assaults on the international environment, to constitute unacceptable threats to the peace. Furthermore, the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change endorsed the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent
On September 28, 2001, the Security Council departed from its previous limited and cautious practice and adopted Resolution 1373, by which it decided that all states shall take certain actions against the financing of terrorist activities, as well as a miscellany of other actions designed to prevent any support for terrorist activities. Security Council’s Resolution 1373 added another dimension to the concept of “armed attack” to include attacks by non-state actors such as terrorist groups, which then gave the State(s) the right of individual or collective self-defense under Article 51. However, in order to ensure that the authorization to use force to combat terrorism will further contribute to peace and stability; the UN Charter still imposed restriction on the right of states to use force in self-defense against an armed attack of sufficient scale and effect by requiring the victim state to abide by the rules of “necessity” and “proportionality” in assessing an armed attack and measuring its [state] response.
Richard Gardner, critic of the Bush's Doctrine, suggested four modest reinterpretations of the UN Charter, which seem to be in the right direction that the world should head into in response to unprecedented circumstances of terrorism and issues of states’ rights to self-defense. These measures include:
(1) Armed force may be used by UN member even without the Security Council approval to destroy terrorist groups operating on the territory of other members when those other members fail to discharge their international law obligations to suppress them
(2) Armed force may also be used to prevent a UN member from transferring WMDs to terrorist groups
(3) Article 51 continues to limit self-defense to cases of actual or imminent armed attack in accordance with the Caroline doctrine, but self-defense can be extended to permit a state to rescue its citizens (and others) faced with clear threat to their security.
(4) A right of “humanitarian intervention” permits military action by the UN or regional organizations to prevent genocide or similar massive human rights violaitons
Furthermore, the Report of the High-Level Panel on Threats, Challenges and Change, in 2004, asserted that the effectiveness of the global collective security system depends ultimately not only on the legality of decisions but also on the common perception of their legitimacy. In considering whether to authorize or endorse the use of military force, the Security Council should always address at least five basic criteria of legitimacy:
(a) Seriousness of threat. The threat must be considered clear and serious.
(b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question?
(c) Last resort. Has every non-military option for meeting the threat in question been explored?
(d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question?
(e) Balance of consequences. Will the consequences of action not likely to be worse than the consequences of inaction?
However, wider participation by other states is required the decision-making process in order to ensure Security Council’s Resolutions regarding war and peace more credible and representative of the will of the international community. The Uniting for Peace Resolution in 1950, or Acheson Plan, argued based on Articles 10, 11, 14 of the Charter making the Assembly the Council’s partner in wielding “authority and responsibility for matters affecting international peace, sounds more promising today in circumventing the veto-bound Council, which has often been accused of yielding to the wishes of its permanent members. By giving the Assembly more authority, it would step in to organize the collective use of force against an aggressor as it happened during the Korean conflict.
Among areas where international organizations’ efforts are falling short are peacekeeping efforts and effects of economic sanctions invoked by Chapter VII on ordinary population and non-target states. The Suez crisis in 1956 thus confirmed the UN in its most fruitful line of endeavor: the stationing of international peacekeeping forces between mutually hostile antagonists at the crucial moment in a dispute when both sides perceive disengagement as preferable to continued hostilities. In order to make the complex peacekeeping or peace-building operations more effective, it is important to identify specific authority for peacekeeping in the text of the Charter.
Furthermore, the 1962 ICJ ruling that the Assembly should not recommend measures while the Council is dealing with the same matter unless the Council requests it to do should also be overturned in order to allow the Assembly to approve peacekeeping operations when the Council refused to act. Another challenge to make the peacekeeping or building more effective is to ensure reliable funding for and national support of broad UN mandates.
Sanctions imposed through Chapter VII of the UN Charter prohibit imports into a target country, exporters in other states and the economies of other states may be harmed (double-edged sword). Security Council should take appropriate measures to ensure that sanctions do not create severe hardships for the ordinary population of a target state and to mitigate the hardships of sanctions in non-target states. Furthermore, a mechanism must be regularly available to review the humanitarian impact of sanctions.
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment