‘Just war’ to Article 2(4)

THE USE OF FORCE IN INTERNATIONAL LAW

We will look at the historical limitations and the so-called ‘just war’ theory which is the philosophical foundation of the UN Charter’s limitations on the use of forceWe will also look at Article 2(4) of the UN Charter

Background reading: Shaw, M International Law 6th ed, pp1118-1128

OVERVIEW

• The theory or doctrine of the ‘just war’ is common to many different religions including Hinduism and Christianity

• India: the ancient Mahabarata (circa 5th-2nd century BC) discussed when it is ‘just’ or right to wage war

• The Mahabarata is an ancient Sanskrit text, part of Hindu religion

• In it, there is a discussion between 2 brothers on when it is just to wage war

• Many ideas were discussed which we recognise today, eg. proportionality (chariots cannot attack cavalry, only other chariots, no attacking people in distress), just means (no poisoned or barbed arrows), just cause (no attacking out of rage), and fair treatment of captives and the wounded

• Just war theory came to be part of Western international law via the Christianisation of the Roman Empire

‘JUST WAR’

• Christian scholars such as Augustine of Hippo and Thomas Aquinas thought and wrote about when it is just (right) to wage war

• Christians had to justify war in the face of the Bible’s apparent prohibition of war (ie “turn the other cheek” in Matthew 5:39)

• Augustine (354-430 AD) was able to do that

• Thomas Aquinas (1225-1274 AD) developed the idea further

‘JUST WAR’ CONTINUED…

Lived in Annaba, Algeria

Used the phrase ‘just war’ in his book The City of God

He said peacefulness in the face of a grave wrong that could only be stopped

by violence would be a sin.

Defense of one's self or others could be a necessity, especially when authorized by

a legitimate authority

The pursuit of peace must include the option of fighting to preserve it in the

long-term. Such a war could not be preemptive, but defensive, to restore

peace

AUGUSTINE OF HIPPO

Thomas Aquinas was from Aquino, ItalyHe used Augustine’s arguments, but developed them into 3 conditions for a ‘just war’”1. War must occur for a good

and just cause/purpose (rather than for self-gain or as an exercise of power).

2. Just war must be waged by a properly instituted authority such as the state.

3. Peace must be a central motive even in the midst of violence

THOMAS AQUINAS

He also said that just war was supposed to punish “wrong-doers”

• A problem arose when Europe organised into states

• States would be fighting each other, but both states would be Christian, both claiming to be waging a ‘just war’ in the name of God

• The theory had to change: obviously it wasn’t enough to fighting in the name of God for a good cause

• A new requirement emerged: serious efforts to achieve peace were necessary before turning to force

JUST WAR AND THE EUROPEAN NATION-STATES

Salamanca is in Spain

Several Spanish scholars developed the

‘just war’ theory in the 16-17th centuries

Vitoria, Suarez were among them

They said: not every wrong can justify a war

Examples of a ‘just war’ included:

In self-defense, as long as there is a reasonable possibility of success.

Preventive war against a tyrant who is about to attack.

War to punish a guilty enemy.

Even if war was ‘just’, there were limits such as protection of innocents and proportionate use of force

THE SALAMANCA SCHOOL

Grotius (1538-1645) was a Dutch scholarThe so-called “founder of international law”Wrote a famous book, De jure belli ac pacis, on the laws of war and peaceOn just war he said it only exists:

1. In self-defence

2. For the protection of property

3. For the punishment of wrongs suffered by the citizens of a state

HUGO GROTIUS

What was ‘the Peace of Westphalia’?

A series of peace treaties, signed in 1648, that ended many of the religious wars in Europe including The Thirty Years War

It recognised that all states are sovereign and equal After the Peace of Westphalia, ‘just war’ theory went out of fashion: no state could say whether another state had a ‘just’ cause for going to warEach state had to respect the principle that they were all sovereign and equalDifferences would have to be resolved peacefully (or at least try)Whether the cause of war was just or not became irrelevant

THE PEACE OF WESTPHALIA

‘Just war’ theory became popular with the rise of Christianity

Then it declined with the inter-Christian religious wars (when Christian states in Europe were all fighting against each

other)The rise of nation-states and the doctrine of sovereignty meant it became irrelevantIn later years, it came back into fashion

again

‘JUST WAR’ SUMMED UP

The League of Nations was set up after World War I (1914-1918)What was it?

The first permanent international organisation whose goal was to maintain world peace The League was an attempt by world powers to stop another terrible conflict, like WWIIt’s charter (founding document) was called The Covenant of the League of NationsMainly drafted by US President Woodrow Wilson (came from his Fourteen Points, introduced at the Paris Peace Conference)It came into effect on 10 January 1920Click here to read The Covenant: http://avalon.law.yale.edu/20th_century/leagcov.asp The Covenant said that members should submit disputes to arbitration (Article 12)Member states couldn’t resort to war until 3 months after the arbitration decisionThis was supposed to be a ‘cooling-off ’ period for states, to reduce the chance of going to war

THE LEAGUE OF NATIONS

• It failed to prevent major conflict• In the 1930s, many major powers withdrew (Germany,

Italy, Spain, Japan)• The US never joined the League of Nations (even though

President Woodrow Wilson was behind the drafting of the Covenant)

• The USSR was expelled in 1939• The League didn’t actually prohibit the use of force: it

just tried to limit its use• The League ultimately failed: World War II began in

1939, bringing the League to an end

WHAT BECAME OF THE LEAGUE OF NATIONS?

• Remember, the League didn’t prohibit the use of force• Another treaty went further & condemned the resort to the

use of force: the Kellogg-Briand Pact 1928 (a.k.a The General Treaty for the Renunciation of War)

• Kellogg-Brand Pact came into force on 24 July 1929• The Kellogg-Briand Pact (which is still technically in force

today) stated that war can no longer be used as in instrument of foreign policy

• This is now a valid principle of international law• Named after the authors (US Sec of State Kellogg, French

Foreign Minister Briand)• Many states made a reservation to the treaty, reserving the

right to use force in self-defence

THE KELLOGG-BRIAND PACT 1928

• The League of Nations ultimately failed• World War II broke out in 1939 and it lasted

until 1945• WWII was the deadliest war in human history• Approximately 60 million people were killed

- around 2.5% of the world’s population• In the wake of WWII, the United Nations was

established• Its founding document is the UN Charter

WORLD WAR II

• The UN Charter has a preamble (ie an introduction) and 19 chapters

• The preamble sets out the purposes of the UN:

“We the peoples of the United Nations determined: to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom… have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations."

UN CHARTER

The Purposes of the United Nations are:(1)To maintain international peace and security to take

effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace

(2)…

ARTICLE 1

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles:

(1) The Organization is based on the principle of the sovereign equality of all its Members.

(2) All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

(3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

ARTICLE 2

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

ARTICLE 2(4)

• This is part of the UN Charter BUT it is also now accepted as a principle of customary international law

• It is binding upon all states in the world community

• It draws upon the League of Nations Covenant• It was elaborated upon in the 1970 Declaration on

Principles of International Law Concerning Friendly Relations and Co-operation Among States

• To read the 1970 Declaration click here: http://www.un-documents.net/a25r2625.htm

ARTICLE 2(4)