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CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE…
the substance of the present international law governing the use of force (see various
doctrines and practice of states)? Is the prohibition of military force still a peremptory
norm of international law? Is a latin proverb for the use of force
“ex iniuria non
ius oritur”
or the proverb
“ex iniuria ius oritur”
valid? How to satisfy the legitime
demands of “democracy” and human rights with a prohibition on the use of force?
What differences exist between customary prohibition of the use of force and the
prohibition in the UN Charter and relevant international treaties? Do the customary
rules and treaty rules on the use of force have the same content, or what is the
difference? In which way have international customs so far “modified” Art 2 (4)
and Art. 51 of the UN Charter? What impact, on the other hand, did prohibition
of the use of force embodied in Art 2 (4) and Art. 51 of the UN Charter have on
international customary law? What about priority obligations under Art. 103 of the
UN Charter? What is the relationship between “legality” and “legitimacy” of the
use of force? Is “legitimacy” of ultimately “pre-emptive” unilateral armed actions
the reason for and way for later “legal” justification of these action? Who ultimately
decides about legitimacy or lack of legitimacy?
There are various doctrines and theories which maintain that the stipulations
of Art. 2 (4) and 51 of the UN Charter are no longer tenable in the face of new
security threats and risks in the contemporary world. Is it realistic nowadays to expect
modification or change of the stipulation on the use of force embodied in the UN
Charter? Which risks in international law, if any, bring the new conception of an
armed attack launched by non-state actors on the territory of state which shelters
them? In the light of political developments in the world during the last decades and
especially now, it seems that prohibition on the use of force is losing its strength and
legal meaning in favour of a policy oriented approach(?!).
The definition of “aggression” is at the heart of the mandate of the ILA Use
of Force Committee. There are nearly 100 years of efforts to define “aggression“,
starting with attempts in the League of Nations (LN) and finishing with the ICC
2010 Kampala definition of the crime of aggression. The definition of aggression
is closely related to armed attack and self-defence. The notion “act of aggression“
in the Kampala definition differs from the
ius ad bellum
1974. The question may
be what impact this “dichotomy“ of both definitions will have on the
ius ad bellum
definition of aggression in the future? The concern about the future impact of the
Kampala definition on the
ius ad bellum
definition of aggression seems to be justified.
In fact, we now have two somewhat dissimilar definitions of “aggression“ in public
international law… Art. 2(4) of the UN Charter is the basis of any definition of
aggression. Not every unlawful use of armed force necessarily equates to an “act of
aggression“. However, it is rather difficult to determine any “act of aggression“ which
for an attacked state does not constitute at the same time a “crime of aggression” or
“criminal act of aggression“. The Great Powers will probably consider any armed