WAR UNLAWFUL EXCEPT IN SELF DEFENCE
Cyprus Mail 6 September 2020 - by Alper Ali Riza
By Alper Ali Riza
Casus Belli is a Latin tag used by diplomats and political leaders to mean a hostile act that justifies use of force against the perpetrator state. The most egregious example was Japan’s attack on Pearl Harbour that caused US to declare war on Japan on December 6, 1941. President Roosevelt called it the day of infamy in his speech asking Congress to declare war.
There are many other examples, but the mere fact that an act is claimed by a state to justify going to war does not mean that the use of force that ensues is lawful.
War and the threat of war are both unlawful under the 1945 UN Charter. Only the inherent right of self defence in the event of an armed attack is lawful, and then only if it is necessary and proportionate.
Different considerations apply if use of force is authorised by the UN Security Council, but as unanimity is rare among its permanent members, for all practical purposes, self defence is the only lawful use of force available to states, and the only question to ponder here is the ambit of self defence between states at loggerheads.
That having been said, it is a truism that states do not comply with international law in matters of war and peace. This is because national interest dictates policy and the number of wars since 1945 bears witness to the harsh reality of war as an instrument of foreign policy.
The primary role of the UN is to maintain peace and security in the world, and, being an organisation dedicated to peace, the UN Charter had to make the use of force unlawful. After two world wars the framers of the UN Charter were more aspirational than realistic, but for small and less powerful states this has been a welcome if imperfect state of affairs
The obligation to suppress aggressive wars has been particularly useful, not least because since 2010 aggressive war is not only illegal, it is also criminal for which persons in leadership positions can be prosecuted: the procedure is convoluted and cumbersome but it is there.
Under the UN Charter member states undertook to refrain from the use of force and agreed to delegate the maintenance of peace to the UN Security Council of which the victors of World War II are all permanent members. But member states did not renounce the use of force in the resolution of disputes. This has constrained the vanquished states of World War II like Germany and Japan, though not the victors who have become the usual suspects in most wars across the globe since 1945.
States delegated the power to use force to the UN Security Council but, as mentioned earlier, preserved the inherent right to self defence.
Self defence has always been part of customary international law as integral to the Just War tradition under which engaging in war was permissible as a last resort, provided civilians were not targeted, the rules of war between combatants were respected, and the use of force was more likely to do good than harm.
The UK and US got into a lot of trouble over this in the 2003 war in Iraq. The British attorney general got himself in a bit of pickle over the legality of the war in Iraq because he first advised that attacking Iraq was unlawful in the absence of a UN Security Council approval, and then changed his advice seemingly on the basis of self defence, for which the evidence had been “sexed up.”
The Chilcot Inquiry into the circumstances in which the UK was taken to war concluded that the threat of weapons of mass destruction from Iraq was not imminent – if it existed at all – and the attack on Iraq was not a last resort but rather, as the US conceded, in furtherance of regime change in manifest breach of at least two articles of the UN Charter.
Self defence has been stretched to its limits in cases of pre-emptive self defence, which is part of the criminal law in most systems of law but not necessarily part of international treaty law. It is not authorised by the UN Charter, but it is, arguably, part customary international law. Just like in criminal law you do not have to wait passively in the face of an imminent attack; states too must be entitled to use force pre-emptively where an attack is imminent.
Margaret Thatcher justified the sinking of the Argentine battleship The Belgrano during the Falklands war on the basis that it represented an imminent threat to the British task force even though it was outside the exclusion zone set by Britain and even though it was heading in the opposite direction. Her logic was that it could easily have changed course and pose an unacceptable risk to the task force. The incident still divides opinion and the late Labour MP Tam Dalyell was never convinced that sinking The Belgrano was justified on military grounds.
Preventive, as opposed to pre-emptive, self defence, however, is unlawful because an attack is not imminent and as such falls foul of the requirement that the use of force must be a last resort.
Humanitarian intervention to defend persecuted groups that cannot look to the state of a country for protection is also unlawful. It was the justification for the intervention by Britain, France and the US in Libya, but that was authorised by the UN Security Council rather than by customary international law. Humanitarian intervention is difficult: most people believe something must be done where human suffering is so obviously in need of relief.
The truth about humanitarian intervention, however, is that it falls foul of the Just War tradition because more often than not it does more harm than good.
Alper Ali Riza is a queen’s counsel in private practice and a retired part time judge.