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CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE…
violation of the
ius cogens
principle prohibiting the use of armed force. Art. 53
must be understood in the context of Art. 51 and Art. 2 (4). Humanitarian and all
military interventions without UNSC approval are formally outside the existing
international legal framework.
Ex post facto
legalization of the use of armed force
means that the prohibition of the use of force was violated and only subsequently
was it found that some justifications may exist. Such a justification as a rule gives
rise to doubts and controversy, especially when justification was brought by states
and their political and legal representatives involved in originally unlawful military
action. There has always been a general tendency by international law infringers
to seek authorization of their own unlawful behaviour. Returning to the
ex post
facto
legalisation of NATO’s intervention in Serbia, A. Pellet e.g. characterized this
way of legalization as “unfortunate” and introducing into the international legal
order “a part of uncertainty which is deeply repugnant to the very function of law
in any society…”
51
Even when the UNSC endorsed the consequences of any armed
intervention with the aim of preventing possible damage, it does not mean necessarily
that this intervention was recognized by the UNSC as lawful. If the UNSC determines
that massive violations of human rights within a country constitute a threat to the
peace and authorizes military enforcement action, a humanitarian intervention is
considered legitime and lawful.
There is no general recognition of humanitarian intervention. Nevertheless,
there are resolute proponents of the use of military force for humanitarian purposes.
According to the ILA Report, the UK government was in favour of an “exceptional
and strictly limited justification for the use of force to avert humanitarian catastrophe
but not for a “general right of humanitarian intervention.”
52
The Report supports
as justifiable a limited use of armed force without UNSC authorisation, resting on
some exceptional justification of necessity, when that was the only means to avert
an immediate and overwhelming humanitarian catastrophe. No such unilateral
right is, however, embodied in the existing positive conventional norms of public
international law. The power to authorize intervention for humanitarian purposes
is vested in the UNSC.
4. Aggression, Armed Attack and Self – Defence
4.1 Aggression
The concept of “aggression” has been used together with the concept of “force”
and “armed attack”.
53
The relationship between aggression and armed attack as two
“independent” notions has never been clear enough. The term “aggression” had
been considered to be too controversial, even during the UN Charter negotiations
51
Supra note 42, p. 389.
52
See supra note 1, p. 23.
53
MRÁZEK, J. The Definition of Aggression and the Use of Force.
CYPP
, Vol. 5, 2014, p. 67.