Using force as a way to resolve dispute between countries has been common throughout history. The idea of the Use of Force was first conceptualised by St Augustine with the notion of “just war” and this provided a foundation on which Western thought has grown from.
This blog will look at the use of force in international law and how the principles of this discipline has changed from the ideas of the “Just War” to changes attitudes to the Cold War type situations and later to multilateral UN forces in failed states and internal conflicts.
Wars have always been part of history and there have been moments in time in which such conflicts have been the catalyst for change and the creation of new approaches to international law.
One of such moments preceded the 30 year war in the sixteenth century which saw the creation of the Peace of Westphalia which many years later became the corner stone of the United Nations.
This war was important as it gave birth to the modern country that we are familiar with today, especially in regards to Sovereignty. This concept of national sovereignty was born out of the right of a country to choose their own religion; but since the separation of church and state as well as a shift in values to a more Calvinist (more personal) engagement with faith, national sovereignty has become less about state-organised religion and more about governance and the provision of infrastructure.
While this does not directly relate to war or the use of force, it has played a substantial impact on the creation of the United Nations and the principles and ideologies that underpin their work.
It is worth briefly considering the nature of war as it could help shed light on why it has been so regulated (in order to encourage its use as tool of last resort) while at the same time being a common method to resolve international disputes. Kenneth Minogue describes war in an interesting way when he writes that ‘war, as Clausewitz puts it, is the continuation of policy – that is politics by another means. Rulers attack for advantage, and defend to protect the national interest. As in chess, one side or other must win, and even stalemates are merely a precarious equilibrium. To lose this international game may be a desperate thing…. as many states discovered when overrun by Nazi Germany after 1939 (2003, p.238).
This idea illustrates why governments still revert to the use of force despite it being heavily controlled by the Security Council through chapter VII of the UN Charter.
Perhaps it is because of the limited availability and effectiveness of other diplomatic tools available to governments to protect and further their national interests and international security.
Another moment in history where war continued to influence international law was after the First and Second World Wars where war had a vast impact on the global political community.
International Law was established in an attempt to reduce the chances of full scale global conflicts ever occurring in the future. The laws and treaties that have descended from the UN have strongly impacted on the creation of treaties and codification of custom pertaining to the maintenance of international peace and security.
One important moment in the development in the international law’s perspective on the use of force was in the development of the International Committee of the Red Cross (ICRC) which soon became much more than a relief organisation.
The ICRC realised it needed to hold a ‘diplomatic conference to draft the terms of an international agreement that would provide for the protection and care of the wounded, and recognise as natural all those who attended and care for them’ (Stubbings, 1992, p.5). As time went on, the Committee of the Red Cross grew to be the catalyst for the creation of the Geneva Conventions.
What has become known as International Humanitarian Law regulates the use of force during times of conflict and provides a set of rules that not only protect civilians but provides a protocol regarding armed conflicts and the use of force.
In more recent times and especially after September 11, there was much debate in regards to how should IHL be applied to those who commit acts of terror and the “War on Terror” that followed. The debate seemed to centre on the question that should the terrorists, who clearly have violated IHL, should be treated under IHL and the Geneva Conventions.
In Australia, the anti-terror legislation was controversial in that it brought in measures which some thought broke international law and custom. The Red Cross1 did not believe that the “War on Terror”, as response to the use of force by terrorists, constitutes an armed conflict and therefore IHL does not technically apply to their trials of these who are charged under this legislation.
However, human rights treaties apply regardless of whether the terrorists can be tried under IHL or not and therefore, the anti-terror act comply with international legal standards regarding the treatment of individuals.
Art 27 of the Vienna Conventions the Law of Treaties2 requires the international community to implement international law in the domestic sphere and use internal law as a reason for fulfilling its international legal requirement.
Wars and the subsequent use of force have been turning points in history and while they seem a long time and not very famous events, these events had a profound impact on international law. These events range from the Peace of Westphalia which finished the 30 years war and gave rise to the concept of state sovereignty to the creation of the Red Cross and IHL.
In more recent times conflicts such as the World Wars have given birth to the League of Nations and the United Nations which are the modern custodians of international law and custom in regards to the use of force. It has also seen the work of the UN change from the world wars to dealing with the increase of civil wars, their mandate of working with international law remains the same.
List of References
Griffith, M and O’Callaghan, T. International Relations: Key Concepts (Routledge: New York, 2003)
Malanczuk, P. Akehurst’s Modern Introduction to International Law.(7th ed) (Routledge: New York, 2003) page 342.
Minogue, K. Politics: a Very Short Introduction (Oxford University Press: Oxford, 2003)
Stubbings, L. ‘Look what you started Henry!’: A History of the Australian Red Cross (Australian Red Cross Society: Melbourne, 1992)
Footnotes
1) International Committee of the Red Cross stated, in an official statement, that ‘when armed violence is used outside the context on an armed conflict in the legal sense or when a person suspected of terrorist Activities is not detained in connection with any armed conflict, humanitarian law does not apply. Instead, domestic laws, as well as international criminal law and human rights govern. Whether or not an international or non-international armed conflict is part of the “global war on terror” is not legal, but political question. The designation “global war on terror” does not extend the applicability of humanitarian law to all events included in this notion, but only to those which involve armed conflict’
2) Art 27 states that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
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