CYIL vol. 7 (2016)

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE…

– The use of military force – different concepts, starting with a brief general

overview of the prohibition of the use of force and analysing the UNSC

authorization and “unilateral” use of military force

– Armed interventions with regard to arguments for their justification

– Aggression, armed attack and self-defence

– Rescue of nationals abroad and intervention on invitation

– Self-defence and armed attack by non-state actors

2. The Use of Military Force – Different Concepts

2.1 Prohibition of the use of force – a brief general overview

After the Cold War we have witnessed renewed attempts and strengthening

efforts to interpret Art. 2(4) narrowly, allowing the use of armed force for military

interventions.

B. Simma e.g. stressed the “subordination” of NATO’s armed actions

to the principles of the UN Charter.

There is emerging a new view that the law on

use of force has already been modified by the UNSC practice and by the practice of

the UN member’s states. However, it seems to be clear that any formal modification

(by Charter amendment) of the principle of non-use of force is highly unlikely. To

justify certain activities involving the use of force, the states mainly rely on the exercise

of their right of individual or collective self-defence. Various attempts to justify

“relaxation” of the use of force prohibition of Art. 2 (4) now exist. International law

experts are deeply divided in their views on the “legality” and “legitimacy” of armed

(especially humanitarian) interventions. Art. 2(4) of the UN Charter stipulates that

“all Member States shall refrain in their international relations from the threat or

use of force”. There are in principle two exceptions from this absolute prohibition:

1) the right to individual or collective self-defence under Art. 51; and 2) the right to

take armed actions individually and collectively upon decision of the UNSC under

Chapter VII (actions with respect to threats to the peace, breaches of peace and acts

of aggression). Art. 2(4) was originally centred on inter-state armed conflicts and

not on internal conflict. The pre-Charter international law was concerned mainly

with international military conflicts (wars). At present the great majority of armed

conflicts, situations threatening international peace and security relate to originally

internal (non- international) conflicts, which often later became “international.” In

fact, the UNSC many times proclaimed even non – international (civil) conflicts as

“threats to international peace and security”. In R. Wedgwood’s view, a broadened

interpretation of Chapter VII may “justify a wider reading of Article 51” and Chapter

VIII as well, embracing a right of “collective self-defence” against a government’s

“armed attacks on its own population…”

The notion “collective self-defence against

See MRÁZEK, J. The Right to Use Force in Self- Defence.

CYPPIL

. Vol. 2, 2011, pp. 33-56.

See note 2, p. 1.

WEDGWOOD, R. Unilateral Action in the UN System.

EJIL

. Vol. 11, 2000, No. 2, p. 356.