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CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE…
the Cold Wars in connection with frequent military interventions the question of
whether the prohibition of the use of military forceis dead or has still any sense was
meaningfully heightened.
There are opinions arguing for a unilateral right to use armed force for humanitarian
purposes or to prevent current security threats, especially from international terrorism
and the proliferation of weapons of mass destruction. There is even an extreme
position questioning the effectiveness, the relevance and even the existence of rules of
international law on the use of force. The 2005 World Summit Outcome refused this
approach, stating that the rules on the use of force in the UN Charter, when properly
interpreted and applied, are adequate to meet new challenges.
82
Unilateral military
interventions (including humanitarian ones) are clearly in contradiction with the UN
Charter. Nevertheless, some authors are speaking about a new “emerging regime” of
the “international community” and collective responses to fundamental violations
of international norms, constituting threats or breaches of international peace and
security.
83
Those who argue for the legality of humanitarian intervention invoke states’
practice, refer to international customary law and “precedents”, indicating that under
“certain circumstances” an armed intervention may be legal. In this way it is suggested
that the uncertainty of military interventions remains fundamental and is essentially
indeterminate. A view even emerged that “the prohibition on war is no longer what it
appears to be in the Charter” and that actions of states “have modified the black-letter
of the Charter”.
84
The states have often resorted to unilateral armed force without
approval of the UNSC, asserting that international law is insufficient to meet present
security risks and challenges. There is sometimes widespread disregard for the rules
on the use of military force. It was stated e.g. that states “may legitimately need to use
force in situations where the Council will not approve its use.”
85
The use of force against terrorists in another country without “authorization”
of the UNSC is a serious but rather controversial subject, especially after the 2001
attack. Christian Tams suggests that, in the course of the last decades, the Charter
regime has been “re-adjusted” so as to permit forcible responses to terrorism under
more “lenient conditions”.
86
There is no doubt that the UNSC may “authorize” the
use of force against terrorists. But a right of states to use armed force unilaterally,
82
Supra note 1, p. 29.
83
Supra note 15, p. 364.
84
HURD, I. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent Worl.
Ethics &
International Affairs
, Vol. 25, 2011, No. 3, p. 293, 294; this author is very distracted and irresolute, also
stating: „It is not my goal here to argue for or against humanitarian intervention… Rather, my aim is to
show that practice of humanitarian intervention exists in a space between legality and illegality (p. 394).
85
SOFAER, A. D.
The Best Defense? Legitimacy & Preventive Force
. Stanford, CA: Hoover Institution
Press, 2010, p. 85. D. Sofaer was legal adviser to the US State Department from 1985 to 1990.
86
TOMS, CH. J. The Use of Force against Terrorists.
EJIL.
Vol. 20, 2009, No. 2, p. 359.