Thursday, August 2, 2007

International Law - Use of Force - A Historical Analysis

Historical Analysis:
International Law to a great extent was influenced by the jurists during the Medieval Age, when modern nation-states began emerging after the collapse of religious empires. The mid-seventeenth century was a watershed in international law for, state practice replaced writings of jurists as a major source of international law. In the period preceding the Roman Empire there was some evidence to suggest the existence of rules regulating the conditions in which groups could resort to the use of force against each other. The concept of just war (bellum justum) emerged as an enduring legal concept during the Roman era and it gained acceptance among Christian theorists like St. Augustine and St. Thomas Aquinas. According to St. Augustine, “just war was that which God Himself Ordained”, thereby imbuing it with substantive moral conduct. St. Aquinas, in the thirteenth century, wrote that a war was just only if the other the party was at fault, and the attacking sovereign intended ‘advancement of good’ or ‘avoidance of evil’. This principle put forth by St. Aquinas did not lay down any clear rules as to the use of force. However, Thomas Aquinas, who wrote in Summa Theologia in the thirteen century about war stated the three basic elements for the presence of a just war: These three elements were (1) lawful authority, (2) just cause, (3) right intention[1]. Some attributed the lawful authority to wage war only to an emperor or in some cases to the Pope. Some like William of Rennes widened it so as to include all feudal lords who have no superior inside the feudal hierarchy. Some like Pope Innocent IV also concluded that the right belongs to the authorities who have no superior to them[2].

There seems to have been a link between the ready acceptance of this doctrine and the religious wars that were fought quite regularly during the medieval period; a strong link seems apparent between the religious dominance in societies in the 16th and 17th centuries and the just war theory. The emergence of the modern nation-states after the Peace of Westphalia in 1648 led to a significant change in the laws of warfare.

Nicolo Machiavelli, wrote in the early 16th century that the sovereign had the absolute right to wage war whenever it was felt necessary and this revolutionary philosophy became strongly embedded for nearly four hundred years. However, other writers like Grotious in 1625 following the just war concept attempted to compile a list of just and unjust causes. Others adopted the Machiavellian view that war was permitted in cases of necessity and expediency as well as in self-defense.

The theory of absolute sovereign power of a state swept away any vestige of control over the use of force in international relations. According to Ian Brownlie, state practice in the period between the Final Act of the Congress of Vienna in 1815 and the advent of the League of Nations in 1919 reflected an unlimited right to go to war. The only limitation or a pre-condition for parties to go to war was that they had to first attempt to settle disputes through negotiation, mediation, conciliation, arbitration etc. and these pacific means of settlement should have failed. The limitation on the right to resort to war was embedded in such treaties as the Hague Convention for the Pacific Settlement of International Disputes of 1907, and was reflected to a certain extent in state practice. The machinery for the pacific settlement of disputes also proliferated in this period with, for example, the setting up of the Permanent Court of Arbitration in 1899.

It may have been because of these procedural limitations on the right to resort to war, combined with the odium of waging increasingly destructive, less localized conflicts, that states began to make a self-serving distinction between war, on the one hand, and other uses of force, on the other. The same factors may have led to ‘war’ taking on a conceptual, juridical status, often divorced from the factual analysis of the state of hostilities. Thus a full-scale armed conflict could have occurred without either state being at ‘war’ with the other. On the other hand, states could be at ‘war’ without even firing a shot. Whether there was a ‘state of war’ depended on the subjective considerations of the governments concerned. Not to declare ‘war’ had the added advantage for states engaged in hostilities of enabling them to avoid those accepted laws, which regulated the conduct of warfare- the jus in bello such as the laws of neutrality. In the period prior to the establishment of the League of Nations, states concentrated on developing a doctrine of lesser uses of force, which seemingly escaped any requirement that methods of pacific settlement be exhausted and also any of the jus in bello. The principal method was the use of the reprisal, which was designed to punish a previous breach of international law by a state or its nationals. In the Naulilaa Case, Germany carried out an armed reprisal from its colony in South-West Africa against the Portuguese Colony of Angola in October 1914. These hostilities were not formally part of the First World War because Portugal was, at the time, a neutral power. The initial injury to Germany arose out of an incident on the Angolan/ South West African border, which resulted in the killing of three German soldiers. The German army responded by mounting a military expedition into Angola, which caused considerable damage and loss of life. The arbitral tribunal accepted that reprisals could be lawful in response to a prior act contrary to international law. However, Germany had not acted lawfully, on this occasion, in that it had not first made an unsatisfied demand that Portugal remedy its unlawful actions and also because the reprisal was out of all proportion to the wrong that had provoked it. The requirement that a demand be made before any force was used in a procedural limitation of sorts, but it is not as onerous as the requirement that all pacific methods of dispute settlement be exhausted.

The constraints on armed force were not sufficient to prevent the devastation of the First World War. The total nature of the 1914-18 hostilities had profound effects on public and governmental thinking. According to Philip Noel Baker, the League of Nations was the first attempt in history to furnish the international society of nations with a permanent and organic system of International Political Institution. This attempt was an outcome of the World War. The League of Nations thus is often referred to as ‘A Child of War’. Although the desire for the establishment of an effective international organisation had been expressed long before the First World War and the earlier Concert of Europe served as a model for the world body, the League of Nations was given a concrete shape only after the adoption of the Covenant by the Inter-Allied Conference on April 28, 1919. The League of Nations represented the first of two attempts to establish an international body ‘to achieve international peace and security’ by making collective interests of nations paramount over national interests. In the case of the League this was to be achieved, in part, by making states accept an obligation ‘not to resort to war’ in the preamble of the Covenant.

However, as is consonant with the world’s first attempt at constructing such an organisation, the detailed obligations imposed and rights granted in the body of the Covenant were unclear and contradictory. By art.10 of the Covenant, members of the League undertook ‘to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League’. When combined with the obligation in the preamble, this provision could not have been constructed so as to constitute an obligation not to resort to war. Indeed art.11 (1) seemed to complement a ban on war by supporting the idea of collective security in stating that ‘ any war or threat of war.... is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations’.

Unfortunately, subsequent provisions effectively undermined any purported ban on war by allowing for the lawful resort to war in certain circumstances. The Covenant at the first instance provided that members were under an obligation to settle their international disputes through arbitration, judicial settlement or inquiry by Council. Art. 12(1) obliged members to submit their disputes to arbitration or to the Council and not ‘ to resort to war until 3 months after the award by the arbitrators or the report by the Council’. Art 13 (4) obliged members to carry out arbitral awards and not to ‘ resort to war against a member of the League which complies with’ such an award. Art 15 obliged states to submit all disputes to the Council, which, by para 4, was empowered to make recommendations for the settlement of the dispute. Art 15 (6) ‘... the Members of the League agree that they will not go to war with any party to the dispute, which complies with the recommendations of the Council’s report’. However, if this report was not unanimous, then art 15 (7) reserved the right of member states ‘to take such action as they consider necessary for the maintenance of right and justice’.

Hence, articles 12, 13 & 15 preserved the rights of states to go to war; all that was imposed were certain procedural requirements which were more elaborate, perhaps, but no less ineffectual than the Roman concept of the just war.

The obligation in article 10 not to resort to aggression, albeit ambiguous in itself, was totally undermined.

It may be argued that although the Covenant did not totally prohibit war, the loopholes were actually reasonably well defined and relatively quite limited. However, the loopholes in the Covenant did suggest that embarking on a war was simply a question of procedural formalities, and that, despite the vague wording of art 10, there was no substantive prohibition in the Covenant outlawing war. States like Italy, Japan and eventually Germany were not inhibited by a set of procedures. The point is that the loopholes created an inherently unstable edifice. States did not exploit the loopholes; instead they simply knocked down the structure of the League. The events that hampered the functioning of the League and eventually led to its dissolution are summarised below:
(1) In 1923, Italy attacked the island of Corfu, which was under Greek sovereignty. Greece brought this violation to the notice of the League, which instead of providing assistance to Greece to resist the Italian invasion gave advice in favour of Italy.
(2) The League Council watched helplessly as Japan, in 1931 attacked and conquered Manchuria and planned the conquest of China.
(3) In December 1934, Italian and Ethiopian troops clashed at Wal Wal, about fifty miles inside Ethiopian territory. Both sides appealed to the League. But the Council took cognizance of the dispute only in September 1935. Sanctions against Italy were approved by votes of fifty-one states but its effectiveness depended upon the full support of Britain and France, which were not forthcoming.

Nevertheless, the absence of a general clear prohibitory norm appeared to have been remedied by the Treaty Providing for the Renunciation of War as an Instrument of National Policy. (Pact of Paris) of 1928.
Art 1 - declaration by the parties that they condemned recourse to war for the solution of international controversies and renounced war as an instrument of national policy.
Art 2 obligated parties to treaty to settle their disputes by pacific means.
Both the Pact of Paris and the League Covenant had a serious defect. Neither of them mentioned a prohibition on the so-called armed measures short of war. Neither covered a situation in which full-scale hostilities were occurring but technically there was no ‘war’ because neither party recognised a state of war to exist. This meant that neither reprisals, which could escalate into warfare, nor warfare itself, in the absence of a formal declaration, were covered by the Covenant or the Pact, and that both could be viewed as lawful.

[1] Lawrence T. Farley, Plebiscites and Sovereignty: The Crisis of Political Illegitimacy, (London: Westview Press, 1986), p.141

[2] Frederich H. Russel, The Just War in the Middle Ages, (Cambridge: Cambridge Univ. Press, 1975) pp. 298-9

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