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PSCI 226 Final
Use of Force Cards Set 1/7
Political Studies
Undergraduate 3

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Declared War
one or more states advises another tha a formal state of war exists between them
e.g. WWII
Undeclared War
two or more states participate in hostilities that have not been declared as war
e.g. Vietnam War
Old Days: a coercive measure that typcially involves state-authorized seizures of property or persons

Today: retaliation for a prior wrong to state or its citizens
-a non military form of sanction usually taken in response to another state's conduct
---- freezing of assets, boycott, embargo
- unilateral use of countermeasures is illegal
Gunboat Diplomacy
threatening conduct by one state to intimidate another
- e.g. Corfu Channel Case
- US military build-up in the Persian Gulf
Low-intensity conflicts
a form of small-scale war between states below conventional war and about routine, peaceful competition
-border wars (India/Pakistan, Ethiopia/Eritrea)
-interventions (humanitarian, to restore democratic govts)
-subversion (training/equipping paramilitary rebels)
Economic Sanctions
the use of coercive economic measures to bring about political change
- Arab Boycott of Israel
- UN-imposed boycott of South Africa
Pre-UN Charter
- Napoleonic Wars (1814)
- Hague Conferences (1899,1907)
-League of Nations (1919)
- Kellogg-Briand Pact (1928)
- 1933 Montevideo Treaty (a Latin American treaty)
Napoleonic Wars
the first attempt to make war illegal (Austria, Prussia, & France)
Hague Conferences
- Hague Conferences (1899,1907) Russia's Czar Nicolas led a European effort to limit the use of force
== no international military force to enforce the limits
== established PCA to settle disputes
League of Nations
== established 1st collective security measure ever by an int'l org
== mutual defense system: "war against one member was war against all"
Kellogg-Briand Pact (1928)
== US & France led treaty condemning war
== Required only peaceful means to settle disputes
Kellogg-Briand Pact (1928)
== US & France led treaty condemning war
== Required only peaceful means to settle disputes
1933 Montevideo Treaty
(a Latin American treaty)
== prohibited the use of force and required only peaceful means to settle disputes under int'l law
UN Charter 3 directives concerning the use of force
1. states may not use or threaten to use force (art. 2(4))
2. states may use force *defensively* when there is an "armed attack" (art. 51)
3. Un Security Council (SC) possesses a legal monopoly on the use of force
UN Charter: Chapter VII
Procedure for Authorizing the Use of Force
1. Article 39: SC determines the existence of any threat to the peace, breach of the peace, or act of aggression
2. Article 41: SC authorizes the use of nonmilitary measures to restore int. peace and security
== economic sanctions, sever diplomatic ties
3. Article 42: if SC determines Art 41 measures to be inadequate, it may authorize the use of military force to restore int'l peace and security
UN Charter: Use of Force in Self Defense: Inherent right of self-defense
- a principle of customary int'l law (CIL)
- use of force must be "necessary" for defensive purpose
== test of "necessary" (The 1842 Caroline case): "threat or perceived use of force, must be instant, overwhelming, and leaving no choice of means and no moment for deliberation"
- and "proportional in its execution
== if necessity is satisfied, the defensive response must be "proportional" to the initiator's attack
UN Charter: Use of Force in Self-Defense: Article 51 : right of self-defense under UN Charter
- use of force in self-defense can only be justified in response to an "armed attack"
==placement of nuclear missiles? training of rebel forces?
[Rule: a state retains the "inherent right of self-defense" independently of Art. 51's "armed attack" requirement]
- the right of self-defense may be invoked only until the SC has undertaken measures against the aggressor
- Victim State is required to immediately report any defensive activity to the SC (Notice requirement)
UN Charter: Collective Self-Defense
- the notion that an armed attack on one member of the particular orgs of states constitutes an attack on all, thus authorizing a collective response to the aggressor (NATO)
- Art 51 recognizes the inherent right of collect self-defense in response to an "armed attack" against a UN Member (1991 Gulf War & SC Res. 687)
- THE ICJ POSITION: the principle of nonintervention trumps the right of collective self-defense in cases involving the overthrow of regimes (see Nicaragua Case)
The First Gulf War - Background to the Iraqi Invasion of Kuwait
1. Iraq wanted OPEC to raise oil prices to it could pay off its war debts and rebuild its infrastructure after the war against Iran (1980-1988)
2. Kuwait failed to go along with the production quota assigned to it by OPEC during the 1980s
- Kuwait chose to overproduce to keep oil prices down
3. Iraq claimed that Kuwait was deliberately trying to undermine the Iraqi economy
The First Gulf War - Invasion
Iraq invades Kuwait on Aug 2, 1990
- gave Iraq control of 1/5 of the world's oil supply
- consuming and producing nations responded
UN Charter- Anticipatory Self-Defense
Rather than awaiting an armed attack pursuant to Article 51, a State takes what it describes as defensive action to avoid some mounting aggression or threat by another State
e.g., Cuban Missile Crisis (1962)
e.g., Six Day War (1967)
e.g., Israeli bombing of Iraqi reactor (1981)
e.g., The “war on terror” (an endless war)
e.g., U.S. War against Iraq (2003)
UN Charter - the use of nuclear weapons in self-defense
see Nuclear Weapons Case (ICJ 1996)
Humanitarian Intervention - Definition
The use of force or other action across State lines ostensibly aimed at alleviating grave human suffering due to starvation, disease, atrocity, widespread dispossession or gross persecution, or an imminent threat of such

- often misused by States to unilaterally intervene in the affairs of another State
Humanitarian Intervention: Article 2(7) of the UN Charter
prohibits intervention in matters which are essentially within the domestic jurisdiction of any State”
- Exception: this principle shall not prohibit the SC from enacting enforcement measures under Chapter VII
e.g., Criminal Tribunals for Rwanda & Yugoslavia
Legal Requirements to Humanitarian Intervention
1. Consent of the target state
2. SC authorization for intervention
Unilateral Humanitarian Intervention
Generally prohibited unless SC authorized

1. “Danger invites rescue” exception: to rescue nationals held hostage (self-defense)
e.g., The Entebbe Incident (1976)
e.g., 1980 US Hostage rescue attempt in Iran

Rule: The right of self-defense supports the existence of a limited right to breach a captor nation’s sovereignty to rescue one’s own nationals if the captor State is unwilling to come to the aid of those in danger
- What about some other nation’s nationals?
Collective Humanitarian Intervention
Preferred method of intervention

~ UN Charter does not answer the question of whether States can undertake collective humanitarian intervention without UN approval
~ Article 55(c): The UN shall promote “ universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion
~ Article 56: UN members should “take joint and separate action” in cooperation with the United Nations for the achievement of humanitarian purposes
Private Humanitarian Intervention
- Def: nonmilitary intervention by nongovernmental actors in the internal affairs of a sovereign State for humanitarian purposes
- Rule: States must either provide humanitarian assistance to their own people or accept external assistance
- GA Resolutions 43/131 (1988), 45/100 & 46/182 (1991)
== established a right of private groups to intervene to treat victims of armed hostilities/natural disasters
==SC Res. 688 (1991): authorized humanitarian assistance by private actors in Iraq to assist the Kurds who were targeted by poison-gas attacks
Jus en bello
"right to wage war" aka Just War
Laws of War (jus in bello): History
- War was “unjust”: There were no rules in battle for most of human history
== Combatant forces slaughtered enemy prisoners, pillaged, confiscated property (“prizes/spoils of war”)
e.g., Germanic wars, The Crusades, Indian Wars
- Early examples of “just war” behavior:
==Alexander the Great (333 B.C.)
== Saladin (12th Century)
Laws of War (jus in bello): Just War Doctrine
(mid-1800s > present)

- 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field
~ the first laws of war treaty

- Laws of war developed alongside of the development of military technology and the need to protect civilians and prisoners of war
Law of War (jus in bello): Sea
- 1907 Hague Convention relative to the Laying of Automatic Submarine Contact Mines
~ A State may ot indiscriminately lay mines without proper monitoring by the responsible State
~ States may not lay mines in the high seas

- Modern Naval Laws of War (CIL)
~ Naval captors may not deny quarters to or kill a defenseless enemy
~ Belligerents have a right to “visit and search” merchant vessels flying the flags of neutral States
Laws of War (jus in bello): Lawful Combatants
- Those individuals in armies, militias and the like who commit belligerent acts during wartime

- GCIII: Geneva Conventions relative to the Treatment of Prisoners of War
▪ If captured, lawful combatants must be treated as POWs
▪ As detainees, POWs are guaranteed certain protections
▪ POW detention may only lasts until end of active hostilities
▪ POWs must be repatriated without delay after the cessation of active hostilities
Laws of War (jus in bello): Protected Persons
- “Protected persons” are defined as those persons other than “lawful combatants” who find themselves in the midst of a conflict or occupation and captured by a party to the conflict or occupation of which they are not nationals

- GCIV: Geneva Conventions relative to the Protection of Civilian Persons in Time of War
▪ Protected persons must be treated humanely and guaranteed certain basic rights, included access to a “fair and regular trial”
▪ Protected persons must not be engaged in activities hostile to the security interests of a party to the conflict
Laws of War (jus in bello):
1. 1949 Geneva Conventions
2. War Crimes Act of 1996
3. Superior orders defense
- 1949 Geneva Conventions: Four most important treaties

- War Crimes Act of 1996: incorporates the 1949 Geneva Conventions into U.S. law
~ US courts may fine or imprison any US citizen who violates the Geneva Conventions inside or outside the US

- Superior orders defense (1968 My Lai Massacre)
~ punishment for disobeying an order v. punishment for violating the laws of war
U.S. War Powers Resolution (1973)
• Limits the President’s power to introduce military forces into foreign conflicts in certain circumstances:
a. when Congress has already declared war;
b. when Congress has specifically provided statutory authorization to introduce forces
c. during a national emergency created by an attack on the U.S.

• Requires the President “in every possible instance” to consult with Congress before and after introducing armed forces into hostilities
– President must submit a report to Congress
– President must terminate involvement within 60 days of the report being submitted
The Post-9/11 War Paradigm
I. Main Characteristics
● An “endless war”
● No defined battlefields
● The “enemy” can be picked up anywhere in the world
● The “enemy” can be nationals of any country
● Once the “enemy” is captured, the laws of war do not apply
II. The National Security Rationale
● To gather critical intelligence from the “enemy”
● To prevent suspected terrorists from rejoining the fight
Unlawful Enemy Combatants
▪ There is no such intermediate status under international law
▪ Special classification enables the President to detain those captured on the battlefield beyond the scope of international and domestic law
● Johnson v. Eisentrager, 339 U.S. 763 (1950)
- The privilege of the writ of habeas corpus does not extend to aliens captured on a foreign battlefield, tried and convicted by a military commission on foreign soil, and detained outside U.S. sovereign territory

- Note: “Resident” unlawful enemy combatants must be tried in U.S. federal court pursuant to the U.S. Constitution
Camp X-ray (2002-present)
▪ The “gulag of our time”
▪ A “creature of the President’s authority as Commander-in-Chief”
- Article II, Section I of the Constitution
- Trial & release of detainees are matters of Executive discretion
▪ Detainees are defined as “unlawful enemy combatants”
▪ 770 detainees placed beyond the reach of U.S. courts
- secret detentions
- interrogations and trials with lower standards of justice
- the denial of habeas corpus
≈ A petition for a writ of habeas corpus is a jurisdictional vehicle that brings a prisoner before a judge to contest the validity of his confinement
≈ Article I, section 9, clause II of the U.S. Constitution says that habeas corpus “shall not be suspended” except in “cases of rebellion or invasion”
habeas corpus
is a writ, or legal action, through which a person can seek relief from unlawful detention, or the relief of another person
The Military Commissions Act of 2006: Key Provisions
● Unlawful enemy combatant: “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);
● Purpose: to establish procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission
● Jurisdiction: “a military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001
● Geneva Conventions: “No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights”
Boumediene v. Bush (2007) : Questions
Question 1: Does the President have the authority to suspend the rights of non-citizens during the “war on terror”?

Question 2: Whether nonresident alien detainees held at Guantanamo Bay can challenge the legality of their detention in U.S. court?
Boumediene v. Bush (2007): Challenge to the Military Commissions Act of 2006
● Holding: The MCA violates the Constitution

● Rationale: the Court refrained from applying international law and, instead, extended the reach of the Constitution to Guantanamo Bay to protect the right of noncitizen detainees to petition for a writ of habeas corpus
- Today, Guantánamo detainees have the same rights and access to federal courts as noncitizens captured and detained in Washington, D.C. or South Carolina.
- Eisentrager is still good law
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