75 / 536
61
CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE…
is more “debatable”. A. Pellet raises a question in this spirit: When military action is
unlawful, can it be legitimate? His reply was “yes, of course, it might be, and sometimes
is, legitimate to disregard the law.”
42
He refers in this respect to the B. Simma and
A. Cassese articles mentioned above, which tried likewise to reconcile the ethical and
legal perspective. For A. Pellet, law is not an “aim
per se
”, and even if it is to be hoped
that (social) moral standards and legal rules will usually coincide, the latter can be
forgotten (if they shock the human conscience).
43
Some prominent lawyers are trying to reconcile “legitimacy” of military action
with “lawfulness”. For a lawyer this must mean a “retreat” from insistence on
international legal norms on the prohibition of the use of force. Arguments on the
“legitimacy” of some military actions may often open a “pandora box” of misuse
of military force. Drawing a parallel between “legality” and “legitimacy” cannot
be quite satisfactory from the legal point of view. This approach may denote
a departure from the UN Charter provisions and from the whole international law
system architecture. Therefore it is necessary to be very careful and to distinguish the
military and economic causes of “humanitarian catastrophe” and its consequences.
Much effort has been spent on justifying various military interventions, breaching in
fact peremptory norms of international law. It is generally recognized that a threat
to peace in the meaning of Art. 39 is not identical with an armed attack, and only
the UNSC in this case is entitled to authorize or to expose a mandate for recourse to
military force.
For some authors, who favour the extensive approach limiting the prohibition
of the use of military force, the fact that certain humanitarian interventions have not
been condemned by the UNSC and the opinions and silences of the UN Secretary-
General are testament to the “legality” of intervention.
44
The extensive approach
assumes that unilateral pre-emptive military action must be viewed as acceptable in
case of “imminent threat” and “absolute necessity”. An extensive or “policy oriented
approach” claims that legal interpretations cannot be removed from political and
moral considerations, reflecting often natural law notions such as that of “just war”.
Generally speaking, the US and NATO countries “dictate” the interpretation of
international law on the prohibition of the use of force and offer the main arguments
for justification of military actions. They also play an important role in the formation
of the
opinio iuris
. The ICJ in the Nicaragua case nevertheless affirmed that practice is
only significant to the extent that it is accompanied by official legal justification.
45
The
42
PELLET, A. Brief Remarks on the Unilateral Use of Force.
EJIL
. Vol. 11, 2000, n. 2, p. 385.
43
Ibid
., p. 386.
44
See FRANK, T.
Recourse to Force, State Action Against Threats and Armed Attacks
. New York: Cambridge
University Press, 2002, p. 13.
45
GRAY, Ch.
International Law and the Use of Force
. Oxford: Oxford University Press, 2004; CORTEN, O.
The Controversies Over the Customary Prohibition on the Use of Force: a Methodological Debate.
EJIL
. Vol. 16, 2005, No. 5, p. 810.