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JOSEF MRÁZEK
CYIL 7 ȍ2016Ȏ
Key words:
aggression, armed attack, crime, customary international law, ius ad
bellum, military force, resolutions, Security Council, authorization, self-defence.
On the Author: JUDr. Josef Mrázek, DrSc.
, Ústava státu a práva AV ČR;
Právnická fakulta ZČU Plzeň [Institute for State and Law of the Czech Academy
of Sciences; Law Faculty of the University of Western Bohemia in Pilsen]. Research
Fellow at the Institute of State and Law, Czech Academy of Sciences; Lecturer in
Public International Law, West Bohemian University Pilsen, Attorney at Law in
Prague; Juris Dr., Charles University (1967); Candidate of Sciences in Law – CSc.
(Ph.D.), 1974; Doctor of Sciences in Law
(Dr.Sc.), 1988; Author or co-author of
about 200 publications on international public law.
1. Introduction
This contribution was partly inspired by the Draft Report of the ILA Use of
Force Committee on Aggression and the Use of Force. The author of these remarks is
a member of this Committee. The purpose of this essay is not to comment in detail
on the latest report,
1
but to describe and critically analyze some doctrines and theories
justifying extended use of military force in the contemporary world in confrontation
with the UN Charter provision of Art. 2 (4) and Art. 51. During the Cold War it was
argued by some international lawyers, e.g. that Art. 2 (4) would allow the unilateral use
of military force (military intervention) without authorization of the UNSC which
is not directed against another state’s territorial integrity or political independence
or which is not in any other manner inconsistent with the purposes of the United
Nations. Many other theories of prominent international lawyers together with the
practice of some states has already to some extent eroded international law on the
use of force. It is legitime to analyze real development in the field of prohibition
of the use of military force, taking into account the often repeated statements that
“international law is not static”. Besides, many prominent international lawyers insist
in some way that there might be very exceptionally “hard cases, involving terrible
dilemmas in which imperative political and moral considerations leave no choice but
to act outside the law.”
2
In the ILA Report conclusions we may even read: “It has
occasionally been suggested that the rules of international law on the use of force are
dead. This may be an exaggeration but it reflects – or reflected – a real concern…”
3
The Report of the Iraq Inquiry (Sir John Chilcot report) dated on 6 July 2016
only reinforced doubts about whether the prohibition of the use of force embodied
in Art. 2 (4) is effective. In connection with the contemporary international law
on the use of force (
ius ad bellum
) it is possible to raise several questions: What is
1
International Law Association, (ILA) Johannesburg Conference (2016), Draft Report on Aggression
and the Use of Force, Manuscript 2016.
2
SIMMA, B. NATO, the UN and the Use of Force: Legal Aspects.
EJIL
. Vol. 10, 1999, No. 1, p. 1.
3
Supra note 1, p. 28.